text:
1.17 Smith & Wesson 3913 LS "Ladysmith"
2nd and 3rd generation Glock 17s are used by various characters, most notably John Diggle (David Ramsey) who uses a 2nd generation model.
Glock 17, 2nd generation - 9x19m.
Starling City police officers can be seen with Glocks in "City of Heroes" (S02E01).
Diggle firing his Glock during the shootout at Queen Consolidated in "City of Heroes" (S02E01).
Aglin (Derek Hamilton) with a 2nd gen Glock at the start of "City of Heroes" (S02E01).
It changes to a 3rd gen when taking Thea hostage.
Then back to a 2nd gen.
Diggle dropping his Glock after he is disarmed by China White in "Identity" (S02E02).
Diggle can be seen with his Glock during an attempted sting operation against the Dollmaker in "Broken Dolls" (S02E03).
Queen Consolidated guards are armed with Glock 17s at the start of "The Scientist" when responding to an attempted break-in (S02E08).
US Marshals draw out their Glock 17s in response to a smoke grenade attack in "Birds of Prey".
Quentin Lance (Paul Blackthorne), now a uniformed officer, is armed with a P226 as his sidearm in the season as with the majority of all uniformed Starling City police officers. Baker (Douglas Chapman) in "City of Heroes" (S02E01) carries a SIG-Sauer P226. Malcolm Merlyn drops a couple of P226s seized from disarmed guards near the end of "The Scientist" (S02E08). Thea (Willa Holland) uses near the end of "Streets of Fire" (S02E22) to shoot at Malcolm Merlyn after he shows up in Starling City.
Laurel Lance (Katie Cassidy) with a P226 after disarming one of the "Hoods". This is a continuity error, as in the previous shot the "Hood" was carrying a Beavertail model.
Laurel hands the SIG to Aglin (Derek Hamilton).
Baker searching for Oliver with his SIG drawn. Note the unrailed frame.
Baker just before he is disarmed.
Officer Lance aims his sidearm at Oliver when he returns to the city as the real Hood.
Lance with his P226 drawn when working with the Arrow in "Broken Dolls" (S02E03).
A side view of Lance's pistol as he pursues the Dollmaker. Note that this is an unrailed model.
Barton Mathis (Michael Eklund), a.k.a. The Dollmaker, can be seen with Lance's SIG after disarming him.
Two of the "Hoods" in "City of Heroes" (S02E01) can be seen with a SIG-Sauer P226 Beavertail (or possibly an Elite, it is not seen in enough detail to determine if it has front slide serrations). It can also be seen being used by some Starling City police officers.
Baker (Douglas Chapman) with the P226 Beavertail before being disarmed. This is a continuity error, changing to a regular unrailed P226 in the next shot.
Deveau (Jason Griffith) with the P226 Beavertail during the shootout at Queen Consolidated.
A police officer firing his P226 Beavertail during the shoot-out at the gun buyback event in "Crucible" (S02E04).
A SIG-Sauer P228 is used by Amanda Waller as her main sidearm, first appearing near the end of "Suicide Squad". Lyla Michaels uses one near the end of "Unthinkable".
Amanda clears a corridor with the P228 near the end of "Suicide Squad".
Dual P228s are used by Amanda during a standoff with Diggle, Lyla and some Suicide Squad members at ARGUS HQ's control room.
Lyla aims a P228 at Amanda during the standoff at ARGUS HQ.
Slade Wilson (Manu Bennett) uses a Browning Hi-Power in "City of Heroes" (S02E01).
Slade firing the Browning at the pirates holding Shado captive.
Slade Wilson (Manu Bennett) can be seen with a holstered M1911A1 in "Broken Dolls" (S02E03), serving as his main sidearm in the season when he was stranded on Lian Yu. Dr. Ivo uses one in the middle of "The Scientist" (S02E09) in a flashback.
Dr. Ivo threatens to execute both Sara and Shado back on Lian Yu in "The Scientist" (S02E09).
"The Captain" (Jimmy Jean-Louis) carries a Walther P38, first seen in "Crucible" (S2E04) and later in "Keep Your Enemies Closer" (S2E06). Dr. Anthony Ivo (Dylan Neal) uses the P38 to execute "The Captain" near the end of "State v. Queen" (S2E07), handing it to another man. The P38 is seen again in the hands of the new "Captain" near the end of "The Scientist" (S2E08) and some of Ivo's men in "The Promise" (S2E15). Hendrik Von Arnim (Artine Brown) aims a P38 at Sara and at the other survivors in a flashback sequence in the middle of "Birds of Prey". Oliver and Sara use the P38 at different times in "The Man in the Hood".
"The Captain" aiming his pistol through the bars of Oliver's cell in "Crucible" (S02E04).
"The Captain" with his P38 in "Keep Your Enemies Closer" (S02E06).
An unidentified member of Ivo's crew can be seen with a P38 during the firefight in "The Promise" (S02E15).
A closeup of the P38 in Ivo's hand in "The Promise" (S02E15).
Hendrik aims the P38 at Anatoli Knyazev.
Sara (Caity Lotz) aims the P38 at a wounded Ivo back in Lian Yu in "The Man in the Hood".
Oliver executes the wounded Ivo by firing the P38 at close range.
Baikal IJ-70s are used by several characters in "Keep Your Enemies Closer" (S02E06).
The Russian police officers who arrest Diggle carry IJ-70s.
John Diggle (David Ramsey) acquires an IJ-70 from a prison guard during his escape.
Lyla Michaels (Audrey Marie Anderson) picks up an IJ-70 during the shootout in the prison courtyard.
Diggle aiming his pistol at Deadshot. Note the adjustable rear sight which identifies this an an IJ-70 rather than a Makarov PM.
A drug dealer uses an IMI Desert Eagle against Oliver at the start of "Blast Radius" (S02E10).
IMI Desert Eagle MK XIX - .44 Magnum. Note that the .44 Magnum version of the Mark XIX has a fluted barrel, which is absent from the .50 AE version.
The drug dealer firing his Desert Eagle at Oliver.
Mark Scheffer aka the Shrapnel (Sean Maher) uses a Smith & Wesson 4006 near the end of "Blast Radius" (S02E10).
Scheffer aims his 4006 at Diggle and Felicity.
The 4006 aimed at Felicity after he shot Diggle on his right shoulder.
What appears to be a Colt Double Eagle is used by Laurel near the end of "Blind Spot" (S02E11).
Laurel fires the pistol at Brother Blood.
What appears to be a Makarov PM is used by Brother Blood near the end of "Blind Spot" (S02E11).
Russian Makarov PM - 9x18mm.
Brother Blood takes aim with the Makarov PM.
Oliver Queen uses a Walther P99 at the start of "Suicide Squad" when he disarms a Bratva Boyevik of his sidearm.
Oliver calmly aims the P99 at the head of a Bratva Brigadier officer during a meeting in Starling City.
Lyla uses a Beretta 92FS as her main sidearm during her time with the US Army in "Suicide Squad" in a flashback sequence.
Current American made Beretta 92FS - 9x19mm. Note the slanted dust cover, recurved backstrap and hex grip screws which distinguish this from earlier versions.
Lyla aims her 92FS at Gholem Qadir after being discovered to be a fake refugee.
A Beretta Px4 Storm is used once by a hired teenager in "Birds of Prey".
The Px4 Storm aimed at Roy in "Birds of Prey".
Slade uses a TiSAS Zigana Sport pistol as his main sidearm, first seen in "The Man in the Hood".
Deathstroke opens fire at the Arrow Team in "The Man in the Hood".
Smith & Wesson 3913 LS "Ladysmith"
Isabel Rochev (Summer Glau) opens fire at Oliver with a Smith & Wesson 3913 LS "Ladysmith" pistol near the end of "The Man in the Hood".
Isabel aims the Ladysmith at a fleeing Oliver.
Firing the Ladysmith while taking cover.
Sara uses a IMI Jericho 941 near the end of "Seeing Red", using it to wound Roy who is out of control due to the Mirakuru serum.
Jericho 941 R (early model) - 9x19mm. The Jericho 941 F version moved the decocker from the slide to the frame.
Sara aims the Jericho at Roy while using her Black Canary costume.
The Clock King (Robert Knepper) is seen here using a Para-Ordnance Warthog Stainless in the episode "Time of Death".
Note Stainless controls and 6 grooves in the slide.
A Rossi Model 971 can be seen at a gun buyback event in "Crucible" (S02E04).
The front end of the Rossi can be seen protruding from the bottom right of the bin, identifiable by the design of the front sight base.
Roy Harper (Colton Haynes) surrenders a Smith & Wesson Model 586 during a gun buyback event in "Crucible" (S02E04). It is described as a K frame revolver, however based on the full length barrel underlug it appears that it is actually an L frame Model 586.
One of the workers at the gun buyback event takes the pistol from its bag. Note the full length underlug.
Quentin Lance uses a Smith & Wesson Model 640 revolver as his backup sidearm, first seen in "League of Assassins" (S2E05).
Quentin fires his sidearm at a League of Assassins ninja.
Baker (Douglas Chapman) in "City of Heroes" (S02E01) carries a Heckler & Koch UMP45.
Baker can be seen on the left. Note the long, straight magazine that identifies his UMP as a .45 caliber variant.
Baker aiming his UMP at Oliver during the shootout at Queen Consolidated.
Baker can be seen with his UMP when the "Hoods" attack Verdant.
Kimel AP-9s are used by Triad bikers in "Identity" (S02E02). A gunman working for Count Vertigo uses one in "State v. Queen" (S02E07). A gangster uses one in a shootout with SCPD officers in the beginning of "Birds of Prey" (S02E17).
A Triad biker opens fire at Roy's Ford Mustang when he attempts to stop a FEMA truck hijacking.
Triad bikers gun down FEMA drivers at a FEMA staging point near Starlight City.
One of Count Vertigo's men in "State v. Queen" (S02E07) carries a Kimel AP-9.
A gangster opens fire with the AP-9 at SCPD officers.
Heckler & Koch MP5A3s fitted with UMP stocks, railed handguards and ACOGs are used by Starling City Police Special Operations officers, first seen in "Identity" (S02E02). ARGUS security guards use them as their main primary weapon, first seen in "Suicide Squad".
A side shot of one of the MP5s as police search the shipping yard for the vigilante.
Several of the officers responding to a potential sighting of the vigilante carry MP5s.
The UMP stocks of the MP5s can be seen in this shot as the police move in to arrest the vigilante at the end of the episode.
A clear view of one of the MP5s when SO officers are disabled by Black Canary's sonic weapon in "Broken Dolls" (S02E03).
A Sa. Vz.61 Skorpion can be seen at a gun buyback event in "Crucible" (S02E04). Several criminals can also be seen with Skorpions at the start of "Keep Your Enemies Closer" (S02E06) and in "Birds of Prey" (S02E17).
The front end of the Skorpion can be seen protruding from the bin in "Crucible" (S02E04).
A criminal running from Oliver with a slung Skorpion in "Keep Your Enemies Closer" (S02E06).
The criminal that Oliver disables with a throwing dart also carries a Skorpion.
A gangster opens fire with the Skorpion at SCPD officers. Note here that he holds it like a pistol.
Another gangster prepares to engage Oliver with the Skorpion.
A Beretta M12 can be seen at a gun buyback event in "Crucible" (S02E04).
The man in the background wearing the leather jacket is carrying a Beretta M12.
A Sterling SMG can be seen at a gun buyback event in "Crucible" (S02E04).
The man queuing in the center of this shot is carrying a Sterling Mk. IV with the stock folded.
Another angle of the Sterling showing its side mounted magazine.
A criminal can be seen with a Mini Uzi at the start of "Keep Your Enemies Closer" (S02E06).
The man second from the left has a slung Mini Uzi.
A close look at the Uzi as the man is hit by an arrow.
Slade Wilson (Manu Bennett) uses a Heckler & Koch MP5K when he confronts Dr. Ivo in the middle of "State v. Queen" (S02E07). Some of the mercenaries hired by Helena in "Birds of Prey" use MP5Ks against SCPD SO tac teams. Some of the Suicide Squad members "liberated" by Lyla arm themselves with MP5Ks in the middle of "Unthinkable".
Slade aims the MP5K at Dr. Ivo. Note that there are picatinny rails on the side of the submachine gun (S02E07).
A mercenary opens fire with the MP5K at SCPD SO tactical teams.
Suicide Squad members load up on MP5Ks after Lyla breaks them out of their cells.
Several of the gunmen working for Count Vertigo in "State v. Queen" (S02E09) are armed with what appear to be CZ Scorpion Evo 3 A1s. This is one of the first productions in the US or Canada to feature the weapon.
The henchman on the raised platform and the one taking cover on the right in the foreground are both armed with Scorpion Evo 3 A1s.
A silhouetted side on view of the Scorpion being held by the henchman on the platform.
Mercenaries working for Milo Armitage in "Tremors" (S02E12) are armed with Heckler & Koch MP7A1s. Hired mercenaries use MP7A1s during an attack in "Birds of Prey".
A mercenary has his MP7A1 slung on his right shoulder when Bronze Tiger breaches a locked room in Malcolm Merlyn's house (S02E12).
The barrel and foregrip of the mercenary's MP7A1 is crushed after Roy uses his super strength to destroy it.
A mercenary gets gunned down by SCPD SO officers in "Birds of Prey".
Hired thieves in "Time of Death" (S02E14) use Cobray M11/9 submachine guns that are altered to fire on full automatic once they were forced to gun down a Kord Industries Security Service guard.
SWD M11/9 SMG with folding stock - 9x19mm.
The thieves firing the M11/9s at full auto at responding SCPD officers.
Captain Stein (Lochlyn Munro) uses a Heckler & Koch MP5A2 near the end of "Birds of Prey".
Heckler & Koch MP5-N, A2 model with Navy Trigger Group - 9x19mm.
Captain Stein aims his MP5A2 at the back of who is suppose to be the Huntress.
Armed men working for Slade are seen guarding Thea with IMI Uzis in "Deathstroke".
Armed men guard Thea with IMI Uzis.
Aglin (Derek Hamilton) in "City of Heroes" (S02E01) carries a Winchester Model 1300 Defender.
Aglin with the Winchester slung on his back showing the pistol grip.
Aglin firing the Winchester during the shootout at Queen Consolidated. Note that rather than being a factory model with a long magazine tube, this shotgun appears to have a standard magazine tube fitted with an extension.
A side view of the Winchester showing the distinctive shape of the bolt.
A custom short Remington 870 fitted with an M4 type stock, flashlight pump, Ghost Ring sights and a breaching muzzle brake is used by a Starling City Police Special Operations officer near the end of "Identity" (S02E02).
The SO officer with his shotgun aimed at Oliver.
A Mossberg 500 can be seen during the gun buyback event in "Crucible" (S02E04).
The Mossberg can be seen protruding from the bin on the right. It can be identified as a Mossberg by the shape of the pump and the design of the bolt carrier.
Several Remington Model 870s with wooden furniture are used by Iron Heights prison guards as their main weapon in the season.
An IHP guard confronts Slade on the deserted road with the 870 when he blocks the transport near the end of "Deathstroke". (S2E18).
Starling City Police Special Operations officers use the Colt M4A1 as their main assault rifle in the season. Deveau (Jason Griffith) in "City of Heroes" (S02E01) carries a M4A1. US Army soldiers in Afghanistan use M4A1s in a flashback sequence in "Suicide Squad" (S02E16).
Deveau firing his M4A1 during the shootout at Queen Consolidated. Note the symetrical 6 pointed muzzle flash suggesting the rifle is fitted with an A1 flash hider rather than the correct A2 one, a common practice in movies and television series.
Roy Harper (Colton Haynes) takes Deveau's rifle when the "Hoods" attack Verdant.
Deveau searching the church for Oliver.
Oliver Queen (Stephen Amell) investigating one of the rifles used by some gangbangers at the start of "Crucible" (S02E04), which are correctly identified as "fully-automatic M4A1 assault rifles".
"The Mayor" (Cle Bennett) along with several of his men used M4A1s in "Crucible" (S02E04). They are fitted with either EOTech sights, or no rear sight at all.
Several of the M4A1s stolen by "The Mayor" inside their crate.
Several of "The Mayor"'s henchmen with M4A1s during the attack on the gun buyback event.
Diggle (right) and a US Army soldier armed with M4A1s during an Afghan field op in "Suicide Squad".
SCPD SO officers secure a fire escape route in the middle of "Birds of Prey".
Colton (Giacomo Baessato) in "City of Heroes" (S02E01) carries a Galil SAR.
Colton aiming his rifle at Oliver during the shootout at Queen Consolidated.
Colton with his Galil when Oliver attacks their hideout.
Dr. Ivo's henchmen on the island carry AKMs, first appearing in "City of Heroes" (S02E01). They are also carried by the guards aboard the Amazo in "Broken Dolls" (S02E03).
Note the shape of the receiver where it joins the stock is vertical rather than sloped, suggesting this is an AKM.
Slade shooting the man with the AKM.
Several of the prison guards on the Amazo carry what appear to be AKMs in "Broken Dolls" (S02E03).
A henchman of Dr. Ivo storms the abandoned Imperial Japanese Navy submarine with an AKM in "The Scientist" (S02E08).
Several of Ivo's henchmen can be seen with what appear to be AKMs in "The Promise" (S02E15). They only seem to appear in non firing scenes whilst Zastava M70 variants are used for firing scenes, indicating that these are possibly non-firing replicas.
An Enfield L85 can be seen during the gun buyback event in "Crucible" (S02E04). As only the front of the rifle is seen, from a distance, it is not possible to determine if it as an A1 or A2 model.
The handguard and barrel of an L85 can be seen protruding from the bin on the left.
A Heckler & Koch G36K can be seen at a gun buyback event in "Crucible" (S02E04).
The man queuing on the right of this shot is carrying a G36K fitted with a Magpul AFG.
A shipment of FN SCAR-Ls fitted with Mk 13 Mod 0 grenade launchers is misappropriated by "The Mayor" in "Crucible" (S03E04). They are described in the episode as "SCAR-16s" by John Diggle.
A SCAR with the stock folded. Although the truck is supposedly carrying a whole shipment of SCARs, only a single rifle is ever seen.
A side view of the SCAR as the stock is unfolded.
"The Mayor" (Cle Bennett) with the SCAR.
Norinco Type 56s are used by Russian criminals and prison guards in "Keep Your Enemies Closer" (S02E06).
One of the members of the Russian mob that sells an armored car to Oliver carries a Type 56 (left).
The guard at the vehicle entrance to the prison carries a fixed stock Type 56, as opposed to the majority of the other guards who carry folding stock Type 56-1s. The armored car is a Canadian Gurkha F5.
Norinco Type 56-1s are used by Russian criminals and prison guards in "Keep Your Enemies Closer" (S02E06).
The guard at the gate when Diggle is imprisoned carries a Type 56-1 with the stock folded.
One of the members of the Russian mob that sells an armored car to Oliver carries a Type 56-1 (right).
One of Dr. Ivo's men in "State vs Queen" (S03E07) carries a Zastava M70B1, being the assault rifle used when the Amazo was docked near Lian Yu.
The henchman on the right is carrying a fixed stock Zastava M70B1.
The M70B1 is visible on the left during Ivo's confrontation with Shado and Slade.
One of Ivo's men with an M70B1 during the firefight on the freighter in "The Promise" (S02E15).
Anatoli Knyazev (David Nykl) picks up one of the M70B1s during the firefight in "The Promise" (S02E15).
One of Dr. Ivo's men in "State vs Queen" (S02E07) carries a Zastava M70AB2. Another is seen in "Three Ghosts" (S02E09) and in "The Promise" (S02E15).
Several of Ivo's men can be seen with M70AB2s during the firefight "The Promise" (S02E15).
A scoped Remington Model 7600 can be seen during the gun buyback event in "Crucible" (S02E04).
The barrel and pump of the Remington are just visible on the far left of this shot.
The Remington can be seen protruding from the bin on the right. Note that the pump is partially retracted and not fully to the rear, as indicated by the fact that the indent in the bottom of the pump meant to clear the magazine is an inch or so ahead of the magazine.
During an attempt to kill Slade Wilson in "The Promise" (S02E15), John Diggle (David Ramsey) can be seen with a Barrett M82A1M fitted with a night-vision sight.
Diggle in position with his M82A1M. Just visible in this shot is the slightly shorter top rail and exposed folding front sight.
Diggle taking aim through the scope of his rifle. Note the fixed rear sight of the M82A1M, as opposed to the detachable rail mounted rear sight used on the later M107.
In "Suicide Squad", a guerrilla fighter fires the SVD Dragunov at Diggle and at other American soldiers before the former takes him out.
The Dragunov-armed fighter goes down after being shot several times in the chest.
What appears to be an IMI Galil "Galatz" with black furniture is used by Deadshot in "Suicide Squad" during the squad's black ops deployment in Markovburg, Markovia.
Deadshot peers though the "Galatz"'s mounted riflescope after shooting at the art gallery to create a diversion.
Deadshot examines the "Galatz" in the squad's hideout. Note the folded stock.
Lyla Michaels uses a M72 LAW to take out several of Slade's supersoldiers in the middle of "Unthinkable".
M72 LAW with rocket - 66mm.
Lyla with the spent M72 LAW after she fired it at the supersoldier-occupied tower in Starling City.
What appears to be a M18 smoke grenade by Mark Scheffer to distract Oliver from further pursuing him in "Blast Radius" (S02E10).
The M18 on the street before it detonates.
Quentin uses three primed M26 frag grenades at the start of "Streets of Fire" in order to kill one of Slade's soldiers powered by the Mirakuru formula.
The primed M26 grenades near the feet of Slade's soldier in the SCPD precient.
What appears to be a M67 frag grenade is used by Mark Scheffer during a chase in "Blast Radius" (S02E10). However, the grenade is used as a flashbang instead of using lethal fragmentation. Oliver takes one from one of Ivo's men and uses it breach the locked door to the bridge in "The Promise" (S02E15).
Airsoft "M67 hand grenade" gas bottle.
Mark prepares to hurl out an unprimed M67.
Oliver takes an unprimed M67 from the web belt.
A smoke grenade was used during an attack in "Birds of Prey".
The primed smoke grenade on the floor of a waiting room prior to discharging smoke.
A shipment of FN SCAR-Ls fitted with Mk 13 Mod 0 grenade launchers is misappropriated by "The Mayor" in "Crucible" (S02E04).
A side view of Mk 13 Mod 0 mounted on the SCAR.
"The Mayor" (Cle Bennett) preparing to fire the grenade launcher.
When the launcher is fired, not only does the grenade launch with its case, it also appears to be an S-Thunder airsoft grenade based on the hole in the front which is used to load BBs, paintballs or powder.
In season 2, Oliver is given a new bow by Felicity. Although described as custom made, it is actually a slightly modified Oneida Eagle Kestrel compound recurve lever limb bow. Laurel briefly uses this to fire an explosive arrow at the start of "Streets of Fire" (S02E22).
Customised Precision Shooting Equipment Chaos AD compound bows with a black finish are the standard weapons used by members of The League of Assassins. Malcolm Meryln uses one when he shows up for the first time in Starling City at the end of "State v. Queen" (S02E07). Nyssa al Ghul (Katrina Law) uses one as her main weapon in "Heir to the Demon" (S02E13).
What appears to be a longbow is used by Shado throughout the season.
Shado uses the longbow against Dr. Ivo in "State v. Queen" (S02E07).
Felicity triggers a World War II-era landmine in "City of Heroes" (S02E01).
Diggle uncovers the landmine Felicity triggered accidentally (S02E01).
Oliver sets up a series of motion activated pistol crossbows firing cables to capture the female vigilante in "Crucible" (S02E04). Helene Bertenelli uses one of her own in "Birds of Prey".
One of the crossbows fitted to a remote mount.
A front on view of another of the crossbows.
Helena aims the pistol crossbow on Frank during an ambush.
Deadshot uses a wrist gun as his main sidearm from the first season after he is forced to join up with the Suicide Squad, first showing up in "Suicide Squad". Deadshot uses it like a two-round pistol.
Deadshot with the wrist gun used to take out two armed men in the hidden room.
Deadshot aims his wrist gun at ARGUS officers after he helps Diggle and Lyla seize control of the control room in "Unthinnkable".

matches: v. v. v. v. v. v. v.


On June 6, 2018, the Commonwealth Court circulated a Decision in Whitfield v. WCAB (Tenet Health System Hahnemann LLC), Pa. Cmwlth., June 6, 2018.
The Commonwealth Court has published its second Decision addressing the Supreme Court’s holding in Protz regarding the retroactivity of the Impairment Rating Evaluations.
The facts of the case were not in dispute. On March 25, 2002, the Claimant suffered a work-injury that required her to undergo lower back surgery. From March 25, 2002, until September 28, 2002, the Claimant received partial disability benefits for the time period in which she performed alternative work.
The Claimant’s temporary total disability benefits began on September 29, 2002, the day before her lower back surgery.
On June 13, 2006, Dr. Brody performed an IRE under the Fifth Edition of the AMA Guides to permanent impairment. Dr. Brody concluded that the Claimant had an impairment rating of forty-four percent (44%).
Based upon the IRE, the WCJ modified Claimant’s disability status from total to partial disability as of the date of the IRE.
The Appeal Board affirmed the modification of the Claimant’s benefits by Order on June 1, 2009.
The parties stipulated that the Claimant did not raise the constitutionality of the IRE before the original WCJ, or the Board.
Although the Claimant’s disability status was modified from total to partial, because she was not able to return to work following her surgery, the Claimant received workers’ compensation benefits at the temporary total disability rate from September 29, 2002, until mid-July 2015. She testified that she continued to receive medical benefits.
On November 13, 2015, about one month after the Commonwealth Court’s Decision in Protz I, the Claimant filed a Petition for Reinstatement to total disability based upon the Commonwealth Court’s Decision in Protz I, holding that the Fifth and Sixth Editions were unconstitutional.
At the Hearings on the Reinstatement Petition, the Claimant testified that she did not feel as though she had fully recovered from her injuries, and that she had been unable to work from the time of her surgery through July 15, 2015. There was some contradictory evidence that the Claimant was involved in a motor vehicle accident in May 2012, in which she injured her head, neck, and upper back, but not her lower back.
(c) The constitutionality of Section 306(a)(2) was not raised or preserved in the underlying litigation.
The WCJ cited Winchilla v. WCAB (Nextar Broadcasting), 126 A.3d (Pa. Cmwlth. 2016), for the proposition that the Claimant waived the constitutionality argument by not raising it previously. Because of the Judge’s Decision, the WCJ did not make a finding regarding the Claimant’s credibility.
The Claimant filed an Appeal of the WCJ Decision, and the Board affirmed in a 4 to 3 Decision.
The majority of the Board found that Claimant waived the right to challenge the constitutionality of the IRE citing Riley v. WCAB (Commonwealth of Pennsylvania), 154 A.3d 396 (Pa. Cmwlth. 2016). The Board found that the Claimant did not challenge the constitutionality of the IRE before the WCJ or the Board when her change in status Petition was first being litigated.
Additionally, the Board noted that the Claimant did not Appeal the Board’s June 1, 2009 Order, in which the Board affirmed the original WCJ Decision modifying her status to partial disability.
The Board also noted that a Claimant may appeal a change in status at any time during the 500-week period of partial disability, so long as the Claimant presents evidence of a revised impairment rating of at least fifty percent (50%). However, the Board held that Claimant was not entitled to a Modification of her disability status, because she failed to present such evidence.
The Board’s dissent disagreed with the Board’s majority that Claimant’s change in disability status was final. The dissent distinguished Riley, noting that in Riley, the Claimant attempted to challenge the IRE more than 500 weeks after the change in disability status, whereas Claimant here filed her Petition with the 500-week period following her change in disability status.
The footnote goes on to state that Claimant received twenty (20) weeks and six (6) days of partial disability benefits in 2002, leaving her with 479 weeks, one day before her 500 weeks of partial disability benefits were exhausted. Although she did not actually receive payment of four (4) weeks of partial disability until April 2016, those benefits were for the period of July 13, 2015 through August 19, 2015. Therefore, the Claimant exhausted her benefits in the summer of 2015, but did not file her Petition until November 2015. Thus, Claimant did not file her Petition “during the 500 week period of partial disability”.
The dissent further found that Protz I should be applied retroactively, because it satisfied the criteria for retroactive application in Blackwell v. State Ethics Commission, 589 A.2d 1094 (Pa. 1991).
The first criterion is the purpose to be served by the new rule. The dissent concluded that “applying Protz I retroactively to the instant case serves the important purpose of mandating conformity with the Constitution.
Otherwise “allowing Claimants to have their disability status, and ultimately have their benefits completely cut off, based upon an IRE that was based upon an unconstitutional section of the Act, greatly prejudices those Claimants and blocks the main purpose of the Protz I Decision.
On Appeal to the Commonwealth Court, the Claimant argued that the Protz Decisions apply, and that she is entitled to have her disability status restored from partial to total disability, because the IRE upon which the change was based was unconstitutional and invalid. The Claimant contends that the case is “strikingly similar” to the Commonwealth Court’s Decision in Thompson v. WCAB (Exelon Corporation), 168 A.3d 408 (Pa. Cmwlth. 2017), in which the Commonwealth Court reversed the Board’s affirmance of a WCJ’s Decision modifying a Claimant’s disability status from total to partial.
Claimant also argues that Reinstatement Petitions made be filed within three years of the date of last payment, which is satisfied here.
In addition, the Claimant also argues that public policy and justice require the retroactive application of Protz II. Because Protz II struck the entirety of the IRE provision from the Act, the Claimant asserted that injured employees no longer have a statutory remedy to seek a change in status, and “by eliminating the statutory process for an employee to challenge his or her IRE – based partial disability status, the Supreme Court could not have intended to bind forever Claimants to a partial disability status that was unconstitutionally inacted. In addition, the Claimant emphasizes that the remedial nature of the Act stresses that it should be liberally construed in favor of injured workers.
The Employer argued that Claimant fully litigated her change in benefit status a decade ago, but never challenged the constitutionality of the IRE provisions during that litigation. The Employer argued that if the Court were to give retroactive effect to Protz II, the parties expectation of finality would be upset.
The Court goes on to summarize the holdings in Protz I and II, and the subsequent Commonwealth Court holdings in between Protz I and II, namely Winchilla, Riley and Thompson.
In Thompson, the Claimant’s disability status was changed on August 30, 2005 from total to partial disability following an IRE performed utilizing the Fifth Edition of the AMA Guides.
The parties were in the midst of litigating the merits of the earlier change in status, based upon the Claimant’s 2011 Petition for Review, challenging the 2005 IRE when Protz I was decided. Although the Claimant had not challenged the constitutionality of the IRE before the WCJ or the Board, the Claimant in her Petition for Review to the Commonwealth Court raised the constitutionality issue.
The Employer argued that the Claimant failed to timely raise the issue, and should be barred from doing so on Appeal.
The Commonwealth Court rejected the Employer’s argument noting that “This matter began before Protz I and Protz II were decided. It implicated the validity of the statute, and the [Claimant] raised this issue at the first opportunity to do so.” Thompson.
The Commonwealth Court noted that post-Protz II, the statutory time requirements were no longer valid, and the Commonwealth Court allowed a Claimant to raise the constitutionality of the IRE for the first time outside of those time periods, but while the litigation involving the change in status was still pending. Thompson.
With regard to the case at bar, the Claimant argued that she was entitled to a reinstatement of her disability status from partial to total, because she filed her Reinstatement Petition within three years after the date of her most recent payment of compensation, and the IRE upon which the modification of her disability status was based is invalid. She argues that her case is most analogous to Thompson, because she filed her Reinstatement Petition at the first available opportunity, just one month after the Decision in Protz I.
The Claimant also argues that Protz should be applied retroactively.
Employer argues against retroactive application, stressing that Claimant did not raise the constitutionality of the IRE at any time during the underlying litigation related to the IRE itself, and she cannot do so now, because it would upset Employer’s reasonable expectation of finality.
It is undisputed that the Claimant filed her Reinstatement Petition within three years after the date of the most recent payment of compensation. Her last payment was received in mid-July 2015, just four months before she filed her Petition. Therefore, under Section 413(a), the Court examined the disability of [Claimant] has increased, decreased, recurred, or has temporarily or finally ceased. 77 P.S. §772.
The Court notes that “disability” is synonymous with a loss of earning power resulting from a work-related injury. “Disability” may also refer to a status, which is linked to the rate or amount of compensation to which a Claimant is entitled. Traditionally, this status was linked to Claimant’s earning power under the traditional vocational efforts and earning power assessments.
Section 306(a.2) to the Act provided another method of changing Claimant’s disability status from total to partial disability, but without regard to any change in Claimant’s earning power. The practical effect of the change in status for an impairment rating under fifty percent (50%) was to change the Claimant’s status from total to partial disability, and to limit a Claimant to 500 weeks of partial disability. See Diehl v. WCAB (I.A. Construction), 972 A.2d 100, (Pa. Cmwlth. 2009).
Diehl discussed the distinction between a change in disability status based upon an IRE, and a change in earning power based upon a vocational evaluation.
The Court noted that until the IRE provisions were struck down as unconstitutional, a Claimant’s disability status could be modified from total to partial disability in one of two ways: (1) evidence of earning power under Section 306(b)(2), or (2) based upon a Claimant’s impairment rating without regard to his or her earning power under Section 306(a)(2).
Because earning power did not play any role in Claimant’s change from total to partial disability in this case, we discern no reason why the term “disability” in Section 413(a) governing reinstatement from partial to total disability status in this case should be restricted to its traditional definition of earning power.
The Court next considered whether Claimant’s disability status “increased, decreased, recurred, or has temporarily or finally ceased”. 77 P.S. §772.
Under the facts of this case, Claimant may establish entitlement to reinstatement of her disability status “recurred”. The Court defined “recur” as “to return to a place or status”, or “to happen, take, place, or appear again.” Webster’s Third New International Dictionary.
The Court noted that the legal effect of Protz I and subsequently Protz II was to render Claimant once again eligible for total disability benefits. The impediment that rendered her partially disabled under the Act, the Impairment Rating Evaluation, is no longer a valid means of challenging a Claimant’s status. There was no longer a legal basis for Claimant’s disability status to remain partial, because the IRE upon which the change in status was predicated was found, as a matter of law, unconstitutional and invalid. This change in the law was a basis upon which Claimant could seek reinstatement.
This scenario is more akin to a Claimant seeking reinstatement of benefits currently under a suspension than one seeking a reinstatement of benefits following termination, because there is no allegation that Claimant’s disability had ceased.
The Supreme Court explained that suspension status “actually acknowledges” a continuing medical injury.” Latta v. WCAB (Latrobe Die Casting Co.), 642 A.2d 1083, 1085 (Pa. 1994).
In situations where Claimant’s benefits are suspended, the Claimant is only required to demonstrate that the reasons for the suspension no longer exist. Pieper v. Ametek-Thermox Instruments Division, 584 A.2d 301, 304 (Pa. 1990).
A Claimant is not required to demonstrate with medical evidence that the work-related injury giving rise to benefits continues; a Claimant’s testimony to that effect satisfies the Claimant’s burden of proof. Latta.
The Supreme Court explained that because the Claimant already established a work-related injury, it would be improper to require a Claimant to establish it again. “In such suspension stituations, the causal connection between the original work-related injury and the disability which gave rise to the compensation is presumed.” Pieper.
The Court goes on to distinguish Stanek v. WCAB (Greenwich Collieries), 756 A.2d 661, 668 (Pa. 2000).
The Court distinguishes Stanek because the Claimant there did not have his status changed based upon an impairment rating, rather he received partial disability benefits based upon a change in earning power. In Stanek, the Claimant exhausted 500 weeks of partial disability, and sought a reinstatement on the basis that his physical condition had worsened, rendering him totally disabled. The Commonwealth Court noted that the standard enunciated by the Supreme Court, requiring evidence of a loss of earning power and a worsening of the Claimant’s physical condition, under these circumstances makes sense.
However, in cases where the Claimant’s change in disability status was never based on either a change in earning power, or a change in physical condition, but solely on an impairment rating, it does not make sense for a Claimant seeking reinstatement based upon an unconstitutional IRE to show a change in earning power when the Employer was not required to share the same when it had the Claimant’s disability status modified from total to partial.
Furthermore, in some cases, a Claimant will not be able to show a change in earning power, because he or her earning capacity remains at zero. Moreover, because the change in disability status was not linked to any change in physical condition, but only to an impairment rating, it does not make sense to require Claimants to show their physical condition worsened.
Claimant testified that she was not able to work at all, since her surgery in 2002. Employer did not present any evidence to the contrary. Therefore, if Claimant’s testimony is credited, this satisfies her burden under Latta.
However, the Commonwealth Court remanded the matter to the WCJ, noting that the WCJ did not find it necessary to make any findings as to Claimant’s credibility, because of the Judge’s determination that Protz I was inapplicable.
Therefore, the Commonwealth Court vacated the Board’s Order, and remanded the case to the WCJ to make factual findings related to whether Claimant credibly testified that she is totally disabled. If her testimony is credited, and because Employer presented no evidence to the contrary, the Claimant is entitled to a reinstatement as of the date that she filed her Petition under Latta.
The Court cites the humanitarian purposes of the Act for rendering their decision.
Interestingly, the Court appeared to “punt” on the retroactivity issue. The Court notes “Our Decision today does not impose any new legal consequences upon a past transaction. Simply because Protz II is being applied to a case that arose from a work injury and a change in disability status that pre-dates it does not mean it operates retroactively.” Warren v. Folk, 886 A.2d 305, 308 (Pa. Super. 2005).
It would be retroactive if it related back and gave a prior transaction a legal effect different from which it had under the law in effect at the time. This Decision does not alter Claimant’s past status. Rather, it gives effect to the Claimant’s status as it existed at the time she filed a Reinstatement Petition, which was within the statutory time frame for filing of such Petitions.
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§ 505.030 Adoption of the Fire Prevention Code.
§ 505.040 Additions, Insertions, Changes and Deletions.
§ 505.050 Penalties and Appeals.
Editor's Note — Ord. no. 2124-06 §1, adopted June 6, 2006, repealed ch. 505 and enacted new provisions set out herein. Former ch. 505 derived from ord. no. 1345-90 §1, 12-4-1990; ord. no. 1654-97 §1, 4-1-1997; ord. no. 1866-02 §1, 1-8-2002.
Section 505.030 Adoption of the Fire Prevention Code.
Section 505.040 Additions, Insertions, Changes and Deletions.
Section 505.050 Penalties and Appeals.
This Chapter establishes the minimum regulations governing the safeguarding of life and property from the hazards of fire and explosion arising from the storage, handling and use of hazardous substances, materials and devices; and from conditions hazardous to life or property in the use or occupancy of buildings or premises; known as "The Fire Prevention Code".
The second highest executive of the Fire Department, appointed by and works directly under the supervision of the Fire Chief.
The chief officer of the Fire Department serving the City as appointed by the Mayor with advice and consent of the Board of Aldermen.
The designated fire official who is charged with the administration and enforcement of this code.
The designated Fire Code Official.
A secure device with a lock operable only by a Fire Department master key and containing building entry keys and other keys that may be required for access in an emergency.
Synonymous with "key box." The only authorized "key box" to be used in the City of Camdenton.
The policy, as established by the City of Camdenton Fire Department, to insure prompt emergency access into any building or structure in the event of an emergency without excessive loss of time, life and/or property located within the City of Camdenton.
The following Fire Prevention Code, two (2) copies of which are on file at the City Hall and the Camdenton Fire Department, are adopted by the City of Camdenton, Missouri, for the control of buildings and structures as herein provided; and each and all of the regulations, provisions, penalties, conditions and terms of said Fire Prevention Code are hereby referred to, adopted and made part of, as fully set out in the Chapter, with the additions, insertions, deletions and changes, if any, prescribed in Section 505.040 of this Chapter.
Section 101.1. Insert: the City of Camdenton.
Section 105.6 Required Operational Permits. Delete: 105.6.1, 105.6.3, 105.6.5 through 105.6.7, 105.6.9, 105.6.10, 105.6.11, 105.6.12, 105.6.17, 105.6.18, 105.6.22 through 105.6.29, 105.6.31 through 105.6.33, and 105.6.37 through 105.6.46.
Section 105.7 Required Construction Permits. Delete: 105.7.2 and 105.7.8.
Section 109.4. Delete: "shall be guilty of a [SPECIFY OFFENSE], punishable by a fine of not more than [AMOUNT] dollars or by imprisonment not exceeding [NUMBER OF DAYS], or both such fine or imprisonment."
Insert: shall be liable for fines as established in City Code Section 505.050 Penalties and Appeals.
Section 111.4. Insert: $100.00; $500.00.
Section 307.1.1 Prohibited open burning. Insert: Unfavorable conditions: Wind speeds greater than 10 mph, Humidity less than 35%, non-daylight hours.
Section 505.1. Address Identification. Addition: Residential identification shall be a minimum of 4 inches high with 0.5 inch stroke. Commercial identification shall be a minimum of 6 inches high with 0.5 inch stroke.
Section 506.1. Addition: All new structures, except one-family, two-family and town house dwellings as defined by the currently adopted residential code, are required to have a key box installed under the direction of the Fire Code Official. In the event of transfer of ownership or control, remodel requiring issuance of a building permit, or lapse of the City business license of such facility, that facility shall be required to install a key box under the direction of the Fire Code Official.
Section 506.1 Where Required. Addition: Section 506.1.1.1 Location. Installation shall be within 10 feet of the primary fire department entrance at a height no less than 78 inches and no greater than 84 inches measured to the center of the box. The box shall be visible and accessible at all times.
Section 507.5 Fire hydrant systems. Addition: Section 507.5.7 Hydrant Spacing. The maximum distance between fire hydrants shall not exceed 700 feet or as otherwise determined for fire flow requirements in new developments.
Section 3103.2 Approval required. Delete: ".400 square feet." Insert: 200 square feet. Delete: Exceptions: 2.
Section 5704.2.9.6.1. Delete in its entirety and insert: Locations where aboveground tanks are prohibited. Storage of Class I and II liquids in above-ground tanks outside of buildings shall be established by Table 4.3.2.1(a) of NFPA 30.
Building And Fire Code Board Of Appeals.
Appeals. A Building and Fire Code Appeals Board is hereby created to hear and decide appeals pursuant to the dully adopted and amended building and fire codes. An owner, lessee, agent, operator or occupant aggrieved by an order issued by the Building Official or the Fire Code Official or their designee, may file an appeal to the Building and Fire Code Board of Appeals.
The Board shall have no authority to waive the requirements of this code.
The Board shall have the power to review the decisions of the Building Official and/or the Fire Code Official in the interpretation of the adopted building and fire codes or any related standard of the City of Camdenton.
The Board shall have the power to modify or reverse the decision of the Building Official and/or the Fire Code Official.
The Board shall recommend to the Mayor and Board of Aldermen any necessary code adoptions, supplements and any alterations or changes to the code.
Application. The application for appeal shall be filed on a form obtained from the Building Official within ten (10) working days after the notice of violation was served. The application shall be filed with the office of the Building Official along with a fee of one hundred dollars ($100.00).
The Board shall consist of five (5) members.
Two (2) members shall serve for three (3) years; two (2) members shall serve for two (2) years; and one (1) member shall serve for one (1) year.
Thereafter, each new member shall serve for three (3) years or until a successor has been appointed.
Alternate members. The Mayor shall appoint two (2) alternate members who shall be called by the board Chairperson to hear appeals during the absence or disqualification of a member. Alternate members shall possess the qualifications required for board membership and shall be appointed for three (3) years or until a successor has been appointed.
One (1) member may be a resident of the City of Camdenton without experience in the designated areas.
Rules and procedures. The Board is authorized to establish policies and procedures necessary to carry out its duties. An application for appeal shall be based on a claim that the true intent of this code or the rules legally adopted herein have been incorrectly interpreted, the provisions of the code do not fully apply or an equally good or better form of construction is proposed.
Chairperson and Vice-Chairperson. The board shall select two (2) of its members to serve as Chairperson and Vice-Chairperson.
Disqualification of a member/removal from office. A member shall not hear an appeal in which that member has a personal, professional or financial interest. The Mayor, with the consent of the Board of Aldermen, may remove from office any member of the Board for misconduct or neglect of duty.
Secretary. The City Administrator shall designate a clerk to serve as secretary to the board. The secretary shall file a detailed record of all proceedings in the office of the City Administrator, the Building Official and the Fire Code Official.
Notice of meeting. The Board shall meet upon notice from the Building Official, no earlier than ten (10) working days and no later than twenty (20) working days as of the filing of an appeal.
Open hearing. All hearings before the board shall be open to the public. The appellant, the appellant's representative, the Building Official or Fire Code Official and any person whose interests are affected shall be given an opportunity to be heard.
Procedure. The Board shall adopt and make available to the public through the secretary procedures under which a hearing will be conducted. The procedures shall not require compliance with strict rules of evidence, but shall mandate that only relevant information be received.
Postponed hearing — quorum. The Board shall be authorized to transact business upon the presence of three (3) members; no less than three (3) members shall constitute a quorum to do business. However, when five (5) members are not present to hear an appeal, either the appellant or the appellant's representative shall have the right to request a postponement of the hearing.
Board decision. The Board shall modify the decision of the Building Official or Fire Code Official by a concurring vote of a majority of its present members. The decision of the board shall be recorded in the official minutes. Copies shall be furnished to the appellant and to the City Administrator, the Building Official and the Fire Code Official.
Administration. The Building Official or Fire Code Official shall take immediate action in accordance with the decision of the Board.
Appeal from decisions of the Board. Any person or persons jointly or severally aggrieved by any decision of this board may present to the Circuit Court a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition must be presented to the court within thirty (30) days after the filing of the decision of this board. The decisions of this board may not be appealed to the Board of Aldermen.
Penalties. Any person who shall fail to comply with the provisions of this Chapter or with any order by the Mayor issued pursuant thereto and from which no appeal has been taken, or with which such an order as affirmed or modified by the Building and Fire Code Board of Appeals or by a court of competent jurisdiction, within the time fixed therein, shall be fined not less than one hundred dollars ($100.00) or more than five hundred dollars ($500.00). The imposition of one (1) penalty for the violation of such order shall not excuse the violation or permit it to continue. Each day that the violation of this Chapter remains as a non-complying condition can be construed as a separate offense.
Nothing in this Chapter or in the Building Code hereby adopted shall be construed to affect any suit or proceeding impending in any court, or any rights acquired, or liability incurred, or any cause of action acquired or existing under any act or ordinance hereby repealed; nor shall any just or legal right or remedy of any character be lost, impaired or affected by this Chapter.


Demand draft fraud, or the unauthorized debiting of a consumer’s checking account, is a growing problem. Currently, it is the favorite method of fraudulent actors for taking consumers’ money through fraudulent telemarketing and other scams. The Commission believes that it is a growing problem because strong measures taken by the credit card associations over the last several years have made it increasingly difficult for fraudulent actors to obtain access to the credit card system. As a result, these scurrilous operators have turned to other methods of stealing money, including demand drafts.
How do these fraudulent actors steal consumers’ money through demand drafts? In a word, by lying. Many fraudulent actors persuade consumers, either over the telephone or through the mail, to divulge their checking account numbers by telling them that their bank account numbers are needed to verify prizes or to deposit prize money directly into consumers’ bank accounts. In other cases, fraudulent actors tell consumers that only a small amount will be withdrawn, but in fact withdraw huge amounts of money from the consumer’s checking account. As a further insult, the unauthorized demand draft may generate significant overdraft charges to the consumer if the consumer does not have the additional money in the first instance or has written subsequent checks. Little do consumers know that once they give fraudulent actors access to their bank account information, their money will disappear.
Despite the potential for fraudulent misuse, demand drafts are a completely legitimate, though relatively unfamiliar, payment method. Consumers are generally aware that arrangements can be made for recurring payments, such as mortgage payments or car payments, to be withdrawn automatically from their checking accounts. The surprise for many consumers is that withdrawals from their checking accounts can happen on a one-time basis, with no prior written authorization. This one-time third party withdrawal was also a surprise to the Commission when it first observed unauthorized debiting in some of our telemarketing fraud cases. The Commission’s initial conclusion was that demand drafts were just another tool in the fraud operator’s toolbox. Accordingly, the Commission’s initial proposal for a Telemarketing Sales Rule pursuant to the Telemarketing and Consumer Fraud and Abuse Prevention Act,(7) required sellers who use demand drafts to obtain express prior written authorization, which, in effect, would have eliminated demand drafts as an alternative payment method. In response to that initial proposal, the Commission received hundreds of comments from members of the automated payment industry and from legitimate merchants and businesses objecting to the elimination of demand drafts as a payment method. These comments and oral presentations persuaded the Commission that there is nothing inherently unfair or deceptive about the use of demand drafts as a payment method; and, in fact, that demand drafts provide consumers the same convenience and opportunity to purchase goods or services that they could enjoy using credit cards. But like so many other innovative developments in the marketplace, demand drafts are susceptible to misuse by unscrupulous operators.
During the rulemaking, the Commission learned that millions of consumers use demand drafts in lieu of credit cards and that demand drafts are used by Fortune 500 companies, airlines, car rental companies, insurance companies, and mortgage companies. In fact, demand drafts are used by a variety of businesses that are characterized by quick turn-around transactions, and as a payment alternative for consumers who do not have, or would rather not use, credit cards. Demand drafts are a large and growing payment mechanism. One member of the automated payment industry, Telephone Check Payment Systems (“TCPS”), commented in the telemarketing rulemaking that nine of the current twenty demand draft service bureaus process approximately 38,000 demand drafts weekly, totaling over five million dollars for over 700 business clients throughout the country.(8) Accelerated Payment Systems (“APS”) stated at the Commission’s rulemaking workshop in April 1995, that it processes half a billion dollars a year through demand drafts.(9) The vast majority of these transactions are not tainted by fraud. So the lesson the Commission staff learned during the telemarketing rulemaking proceeding, was that it was not the payment method itself that was the problem; rather, the problem was a lack of uniform industry standards, ineffective dispute resolution methods, and consumers’ lack of awareness that their bank accounts could be debited without their written authorization.
In demand draft transactions, consumers are largely unprotected, in marked contrast to credit card transactions, where consumers are protected nationwide against unauthorized or incorrect charges by the Fair Credit Billing Act (“FCBA”).(10) The FCBA creates a mechanism for consumers to dispute charges before they pay, and requires the creditor to investigate a consumer’s dispute. Moreover, under the FCBA a consumer can only be liable for up to $50 for unauthorized charges. By contrast, in the case of demand drafts, there is no legally mandated dispute mechanism, and no limit on liability. Disputes are governed by state law, specifically, state laws that follow the Uniform Commercial Code (“UCC”). The UCC requires that checks or drafts be signed, but unbeknownst to many consumers, the signature need not take any particular form,(11) and the authority to sign can be granted orally.(12) The UCC’s liberal definition of what constitutes a signature creates a problem of proof for a consumer who is victimized by demand draft fraud. Under the UCC, a consumer can only recover money from his or her bank if the consumer can persuade the bank that he or she did not in fact authorize the demand draft in the first place.(13) When a consumer disputes an unauthorized demand draft to his or her checking account, banks often take the position that the mere fact that the consumer’s bank account number is on the draft shows that the consumer gave authority for the draft.(14) Indeed, banks may hold consumers responsible for fraudulent demand drafts because of the consumers’ negligence in giving out their checking account numbers.(15) Although some banks may refund consumers’ money in some instances, it is largely consumers who must bear monetary losses related to demand draft fraud, losses that many consumers cannot afford. As noted by the Federal Reserve Bank of San Francisco in a comment submitted during the Telemarketing Sales Rulemaking proceeding, any protection under the UCC for consumers victimized by demand draft fraud is largely illusory.
It is with this background and knowledge that the Commission has taken various actions to limit demand draft fraud. In adopting certain provisions of the Telemarketing Sales Rule that require consumers’ express verifiable authorizations for demand drafts in telemarketing transactions, the Commission has addressed the problem of nonexistent demand draft industry standards by establishing such standards, at least in the telemarketing context. The Commission has taken and will continue to take a strong enforcement stance against demand draft fraud under the Telemarketing Sales Rule,(16) and, where appropriate, will bring actions under Section 5 of the FTC Act against fraudulent users of the automated payment system that are not covered by the Rule.(17) Additionally, the Commission has taken the lead in establishing a broad consumer education campaign to help consumers learn about and therefore protect themselves against demand draft fraud.
The Rule also reaches individuals and organizations who do not themselves telemarket to consumers but who generate and process demand drafts for those who do. Who are these processors of demand drafts? Generally, if a seller or telemarketer does not generate demand drafts on its own, it uses what is known as a service bureau. In this context, a service bureau is a third party processor who takes bank account information provided by a merchant and, through a computerized system, generates the actual demand draft document based on that information. A service bureau will then forward the demand draft to the merchant, who will deposit the demand draft into the merchant’s bank account for processing in the same manner as a conventional check. Demand draft service bureaus, unlike sellers or telemarketers, are not subject directly to the Rule’s demand draft requirements because they are not themselves engaged in selling goods or services through telemarketing. However, because service bureaus may provide substantial assistance to a seller or telemarketer in connection with a telemarketing transaction, they are covered by the Rule’s “assisting and facilitating” provision.
Under the Rule, a third party can be held liable as an assister or facilitator if the third party substantially assists a seller or telemarketer and knows or consciously avoids knowing that the seller or telemarketer is violating the Rule.(25) Therefore, if a service bureau knows or consciously avoids knowing that a merchant or telemarketer is not obtaining verifiable authorizations before submitting consumers’ checking account information for debiting -- or indeed, that the seller or telemarketer is engaging in any other activity that violates the Rule -- that processor may itself be in violation of the Rule and may be liable for civil penalties or the equitable remedies applicable under the Rule. The Commission is optimistic that the Telemarketing Sales Rule will prove to be a potent weapon to discourage demand draft fraud in telemarketing transactions.
Additionally, the Commission believes that consumers will now have the ability to support their claims to banks in the case of unauthorized demand drafts. In many cases banks have interpreted the presence of a consumer’s checking account number on a demand draft as proof of the consumer’s authorization. Before adoption of the Telemarketing Sales Rule, a consumer had few means at his or her disposal to enable the consumer to prove to a bank that a demand draft alleged to be unauthorized was in fact unauthorized. In the context of a telemarketing transaction, the Rule shifts the onus of proving that a demand draft is authorized to the merchant submitting the demand draft. Now, in that context a consumer can insist that his or her bank request that the merchant produce the consumer’s verifiable authorization. Under the Rule, the merchant must provide proof of authorization to the bank upon request. If that merchant cannot or does not provide the bank with the consumer’s verifiable authorization, the merchant is in violation of the Rule. Moreover, in such a situation, the consumer also has solid grounds to support his or her claim that the consumer's account was debited without the consumer’s authorization. Because the Rule enhances the ability of banks to determine whether a demand draft has a consumer’s authorization in connection with a telemarketing transaction, consumers may be more likely to succeed in obtaining refunds from banks for unauthorized demand drafts.
Although the Rule has only been in effect since December 31, 1995, the Commission has already established its commitment to enforce compliance with the Rule’s demand draft requirements. On March 12, 1996, the Commission filed an enforcement action in the District Court for the Northern District of Georgia against a cluster of allegedly fraudulent sellers of magazine subscriptions who had used demand drafts in violation of Rule.(26) This was the first action filed under the Rule, but it certainly won’t be the last. The Commission intends to continue to take quick enforcement action against fraudulent actors who use demand drafts in violation of the Rule and is already working closely with state law enforcement agencies who will bring these actions as well. Under the Telemarketing and Consumer Fraud and Abuse Prevention Act each state Attorney General and the District of Columbia can enforce the Telemarketing Sales Rule in federal court and obtain nationwide injunctions and redress for their citizens.(27) This means that now there are an additional fifty-one cops on the nationwide telemarketing fraud beat. The Commission anticipates that this innovative enforcement scheme will be a strong new weapon in the arsenal against demand draft fraud and telemarketing fraud in general. The Commission will also continue to use its authority under Section 5 of the FTC Act to bring federal district court cases against companies and individuals that engage in demand draft fraud in non-telemarketing contexts.
In addition to regulation and enforcement actions, the Commission is targeting demand draft fraud through consumer education. It is clear from the Commission’s own learning experience about demand drafts that, for the most part, consumers are not aware that money can be taken from their checking accounts without their written authorization. Because of this lack of knowledge, many consumers fall prey to demand draft fraud by failing to protect their checking account information -- even though these same consumers might never dream of giving out their credit card numbers to strangers. Ultimately, consumers are the first line of defense against any fraud. Thus, the Commission believes it is crucial to supplement its strong enforcement presence in this area with consumer education. Consumers must be armed with knowledge of the fraud and how to avoid it if they are to protect themselves effectively.
In support of its consumer education goals, the Commission’s Bureau of Consumer Protection has formed the Partnership for Consumer Education. The Partnership is a cooperative effort among federal agencies, private industry, and consumer groups, to provide effective and coherent educational campaigns against fraud on a much broader scale than would be possible for any member acting alone. As its first goal, the Partnership is developing and implementing consumer education campaigns against telemarketing fraud. The Partnership campaigns supplement the Commission’s own educational materials produced by the Commission’s Office of Consumer and Business Education.
Members of the automated payment industry were at the forefront in launching the Partnership’s first educational campaign against demand draft fraud. Since March 19, five of the largest industry members have been providing consumers with information that consumers can use to protect themselves against demand draft fraud.(28) We estimate that in the first month of this campaign, over 1.5 million consumers will receive this information. The Commission and the Partnership will continue to inform consumers that they must protect their bank account information.
Consumers can protect themselves and their bank accounts by never disclosing their checking account information to anyone they do not know or for any purpose other than to pay for a purchase through direct debiting of their accounts. Consumers need to know that the only purpose for which anyone ever requests them to disclose their checking account numbers is to deduct funds from their accounts. When this information is requested, consumers can be sure that the company is not legitimate if it misrepresents that the information is for any other purpose. Legitimate companies that use demand drafts as a payment method fully disclose the terms of the sale and the payment method, including their purpose in asking for bank account information, and that the information will be used to obtain payment for goods or services by debiting funds from consumers’ checking accounts.
Victims of demand draft fraud will likely be unable to stop payment on the draft unless they become aware of the fraud and contact their banks immediately after divulging their account information. Nevertheless, consumers should complain to their banks immediately upon learning of any demand draft against their checking accounts that they have not authorized or that is inconsistent in any way with any authorization they have given to any seller to obtain payment by means of a demand draft. They should insist that the bank require proof from the seller that the demand draft was appropriately authorized, and insist that the demand be dishonored if such proof is not forthcoming. Finally, consumers should report incidents of misrepresentation or fraud regarding demand drafts to their state Attorney General. Consumer complaints are an invaluable tool in identifying appropriate targets for enforcement action. To maximize the effectiveness of this tool, the FTC also urges consumers to report any type of telemarketing complaint, including those involving demand drafts, to the telemarketing fraud hotline operated by the National Fraud Information Center (NFIC), a project of the National Consumer League. NFIC compiles complaint information received through its hotline and enters it on a daily basis into the computerized telemarketing complaint database jointly maintained by the FTC and the National Association of Attorneys General. Over one hundred federal, state and local law enforcement agencies use this database to help in identifying overall trends in telemarketing fraud as well as individual operators that are likely candidates for prosecution or other law enforcement action. By reporting demand draft fraud to the NFIC hotline, consumers greatly enhance the ability of the Commission and other law enforcement agencies to take action.
The Commission recognizes that demand draft fraud is a serious problem and has attempted to address this problem within the scope of its jurisdiction. The Commission believes it has provided a strong tool in the Telemarketing Sales Rule to curb its fraudulent use in telemarketing. The Commission will continue to take a leading role in enforcing the Rule against demand draft fraud as well as attacking such fraud with other enforcement actions that are not covered under the Rule. The Commission also will continue to take the lead in educating consumers about how they can protect themselves and their checking accounts.
The Commission is pleased to provide this information to the Committee and welcomes the opportunity to provide any further assistance.
(1)The views expressed in this statement represent the views of the Commission. However, my response to any questions you may have are my own and do not necessarily reflect the Commission’s views or the views of any individual Commissioner.
(2)15 U.S.C. § 41 et seq.
(3)See, e.g., FTC v. Universal Credit Corp., No. SA CV 96-114 LHM (EEx)(C.D. Calif. filed Feb. 7, 1996)(alleging, among other things, demand draft fraud).
(5)See Section 5(a)(2) of the FTC Act, 15 U.S.C. § 45(a)(2).
(6)In just two cases that the Commission recently filed, out of potential consumer injury totalling twenty-four million dollars, injury resulting from demand draft fraud could exceed over 12 million dollars. See FTC v. Diversified Mktg. Serv. Corp., No. 96-388 (W.D. Okla. filed Mar. 13, 1996)(consumer injury estimated at approximately twenty million dollars with significant percentage caused by demand draft fraud); FTC v. Windward Mktg., Ltd., et al., No. 96-CV-0615-FMH (N.D. Ga. filed Mar. 12, 1996)(consumer injury estimated at approximately four million dollars, almost all attributable to demand draft fraud).
(11)See, e.g., UCC §§ 1-201(39), 3-401(2), 3-403(1) (1990).
(12)See, e.g., UCC §§ 1-201(43), 3-401 (1990).
(13)See UCC §§ 4-401, 4-406 (1990).
(14) See UCC § 3-407(3) (1990).
(15)See UCC § 3-406 (1990); FTC’s Statement of Basis and Purpose to the Telemarketing Sales Rule, 60 Fed. Reg. 43,850 (1995)(discussing Federal Reserve Bank of San Francisco Comment).
(17)See 15 U.S.C. § 41 et seq.
(24)See The Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. § 6105 (providing that any person who violates the Rule shall be subject to the penalties provided under the FTC Act, 15 U.S.C. § 41 et seq.) and § 6103(a) (providing that state officials may obtain damages, restitution, or other compensation on behalf of residents of such State for violations of the Rule).
(26)FTC v. Windward Mktg., Ltd., et al., No. 96-CV-0615-FMH (N.D. Ga. filed Mar. 12, 1996)(TRO and asset freeze issued Apr. 3, 1996).
(28)These companies include: Accelerated Payment Systems, Check/Debit, Autoscribe, Intell-A-Check, and QuickCard Systems, Inc. Although Autoscribe recently terminated its business, its clients have been absorbed by the other listed companies and will continue to receive educational messages through those companies.


This case presents an alternative theory of liability which relaxes the requirements of proximate cause. Although the Pennsylvania court ultimately rejects the theory here, it raises issues of what should happen when there are so many defendants and so much harm that it’s nearly impossible to actually identify which defendant actually caused the harm.
8547 Pa. 224, 65 USLW 2579, Prod.Liab.Rep.
[547 Pa. 227] Lawrence R. Cohan, Philadelphia, Colleen M. Hickey, Collegeville, for appellants.
Thomas M. Kittredge, James D. Pagliaro, Philadelphia, for Lead Industries Assoc., Inc.
Timothy S. Hardy, Kirsten K. Robbins, Washington, DC, Ellen Rogoff, Philadelphia, for NL Industries, Inc.
Christopher N. Santoro, Philadelphia, for Joseph and Francis Fillion.
William H. Kinkead, III, Blue Bell, for George W. Keehfus, Jr.
John E. Iole, Charles H. Moellenberg, Jr., Pittsburgh, John P. Penders, Philadelphia, Paul M. Pohl, Pittsburgh, for Sherwin Williams.
Michael J. Sweeney, Pittsburgh, for E.I. Du Pont de Nemours & Co.
James R. Miller, Pittsburgh, for PPG/DuPont/Pratt & Lambert.
Mary E. Kohart, Julia Ann Matheson, Philadelphia, for SCM Corp. & The Glidden Co.
Robert C. Heim, Mary A. McLaughlin, Philadelphia, for Atlantic Richfield Company.
[547 Pa. 228] Edwin L. Kleet, for Amicus Curiae Pa. Chamber of Business and Industry.
Darrell M. Zaslow, Philadelphia, for Amicus Curiae Homeowner's Assoc. of Phila.
K. W. James Rochow, Harrisburg, for Amicus Curiae Alliance to End Childhood Lead Poisoning.
Denise Baker, Philadelphia, for Amicus Curiae Phila. Housing Authority.
Martin Greitzer, Philadelphia, for Amicus - Pa. Trial Lawyers Assoc.
Arthur H. Bryant, Philadelphia, for Amicus Curiae Trial Lawyers for Public Justice.
George D. Gould, Philadelphia, for Amicus Curiae Tenants' Action Group Community Legal Services.
Edward W. Madeira, Jr., James M. Beck, Philadelphia, Hugh F. Young, Jr., for Amicus Curiae Product Liability Advisory Council, Inc.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.
This is an appeal by allowance from the order of the Superior Court, affirming the entry of summary judgment by the Court of Common Pleas of Philadelphia County. For the reasons that follow, we now affirm.
On March 17, 1992, Skipworth filed an action through her legal guardian, Williams, and her co-legal guardian and mother, Ernestine Richardson (collectively referred to as "Appellants") against several manufacturers of lead pigment ("the pigment manufacturers") and their alleged successors as well as a trade association, Lead Industries Association, Inc. ("LIA"). 1 Appellants alleged that Skipworth suffered physical and neuropsychological injuries as a result of lead poisoning from the lead paint in her home. Appellants stipulated that they could not identify the manufacturer of the lead pigment which Skipworth ingested, and admitted that they could not identify when such pigment was made, sold, or applied to her home. Appellants, however, alleged that they had identified and joined in this action substantially all of the manufacturers of lead pigment used in residential house paint from 1870 until production of lead pigment ceased in 1977. Appellants thus proceeded against the pigment manufacturers and LIA (collectively referred to as "Appellees") by invoking theories of collective liability, namely market share liability, alternate liability, conspiracy, and concert of action.
Appellees filed a motion for summary judgment. The trial court granted Appellees' motion for summary judgment as to all counts of Appellants' complaint.
The Superior Court affirmed. In discussing Appellants' contention that market share liability is a viable theory of recovery in Pennsylvania, the Superior Court noted that neither this court nor the legislature had adopted market share liability as a theory of recovery in products liability actions. 445 Pa.Super. 610, 617, 665 A.2d 1288, 1292. Indicating that such an extensive policy shift as adopting market share liability was not for an intermediate appellate court to make, the Superior Court declined to award Appellants relief on this issue. The Superior Court then determined that Appellees [547 Pa. 230] were also entitled to judgment as a matter of law as to Appellants' remaining claims of alternate liability, conspiracy and concert of action. Appellants subsequently filed a petition for allowance of appeal from this determination, and we granted allocatur. We now affirm.
In reviewing whether a trial court's award of summary judgment was appropriate in a case, we view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 144-145, 615 A.2d 303, 304 (1992). Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Pa.R.C.P. No. 1035. As all of the issues in this case present questions of law, our scope of review is plenary. See Phillips v. A-Best Products Co., 542 Pa. 124, 130, 665 A.2d 1167, 1170 (1995).
The Sindell court concluded that the plaintiff need not identify which particular manufacturer made the DES ingested by her mother, and held that the manufacturers of the product identical to the one which harmed plaintiff were liable in shares proportional to their share of the market at the time plaintiff's mother ingested the drug, regardless of actual causation. Id. at 612, 607 P.2d at 937, 163 Cal.Rptr. at 145. The Sindell court stated that market share liability is appropriate where the following factors are present: all the named defendants are potential tortfeasors; the allegedly harmful products are identical and share the same defective qualities (or were "fungible"); the plaintiff is unable to identify which defendant caused her injury through no fault of her own; and, substantially all of the manufacturers which created the defective products during the relevant time are named as defendants. Id. at 611-612, 607 P.2d at 936-937, 163 Cal.Rptr. at 144-145. The rationale for adopting this theory was that "each manufacturer's liability would approximate its responsibility for the injuries caused by its own products." Id. at 612, 607 P.2d at 937, 163 Cal.Rptr. at 145.
Pennsylvania, on the other hand, follows the general rule that a plaintiff, in order to recover, must establish that a particular defendant's negligence was the proximate cause of her injuries. See Cuthbert v. City of Philadelphia, 417 Pa. 610, 614, 209 A.2d 261, 263 (1965) (proximate causation is the "vitally important link" necessary to impose tort liability). [547 Pa. 232] Adoption of the market share liability theory would result in a significant departure from this rule. 4 Although we realize that there may arise a situation which would compel us to depart from our time-tested general rule, such a situation is not presented by the matter sub judice. Application of market share liability to lead paint cases such as this one would lead to a distortion of liability which would be so gross as to make determinations of culpability arbitrary and unfair.
The extent to which liability would be contorted in a lead pigment case were market share liability to be applied is brought into sharp focus when the facts presented by this case are compared with the situation presented by a typical DES case, which is the type of case for which this theory was created. Such a comparison has revealed to us two major factors which compel us to conclude that adoption of market share liability in the context of a lead pigment case would unacceptably distort liability. First, the relevant time period in question is far more extensive than the relevant time period in a DES case. In this case, Appellants cannot identify any particular application, or applications, of lead paint which have caused Skipworth's health problems. Thus, they "pinpoint"
The difficulty in applying market share liability where such an expansive relevant time period as one hundred years is at issue is that entities who could not have been the producers of the lead paint which injured Skipworth would almost assuredly be held liable. Over the one hundred year period at issue, several of the pigment manufacturers entered and left the lead paint market. R.R. at 336a-349a; 578a-579a. Thus, application [547 Pa. 233] of the market share theory to this situation would virtually ensure that certain pigment manufacturers would be held liable where they could not possibly have been a potential tortfeasor; therefore, the first prong of the Sindell test would not be met.
The second factor which persuades us that adoption of market share liability here would be inappropriate is that lead paint, as opposed to DES, is not a fungible product. All DES used for treatment of pregnant women was manufactured according to an identical formula and presented an identical risk of harm. Sindell, 26 Cal.3d at 611, 607 P.2d at 936, 163 Cal.Rptr. at 144. In contrast, it is undisputed that lead pigments had different chemical formulations, contained different amounts of lead, and differed in potential toxicity. R.R. at 313a-314a; 332a-333a.
Appellants contend that "whether all of the lead pigment [the pigment manufacturers] manufactured was exactly the same, in every respect, [is] irrelevant...." We do not see this problem being so easily dismissed. Uncontested evidence shows that differing formulae of lead paint result in differing levels of bioavailability 5 of the lead. R.R. at 313a-314a. Because of differences in bioavailability, a child who ingests dust or chips of lead paint containing equal amounts of lead "derived from two lead paints will not generally develop equal elevation in internal lead level from the two paints. Rather, more highly bioavailable lead has a greater impact than lead in less bioavailable form." R.R. at 314a-315a (emphasis in the original). Thus, differing formulae of lead paint has a direct bearing on how much damage a lead paint manufacturer's product would cause.
Contrary to Appellants' bald assertion that this is an irrelevant consideration, it is actually fatal to their claim that application of market share liability to these defendants would [547 Pa. 234] be appropriate. Market share liability is grounded on the premise that it ensures that "each manufacturer's liability would approximate its responsibility for the injuries caused by its own products." Sindell, 26 Cal.3d at 612, 607 P.2d at 937, 163 Cal.Rptr. at 145. Yet, in this case, apportioning liability based upon a manufacturer defendant's share of the market (even if it were possible to obtain an accurate statistic considering the lengthy relevant time period at question) would not serve to approximate that defendant's responsibility for injuries caused by its lead paint. For example, a manufacturer whose lead product had a lower bioavailability than average would have caused less damage than its market share would indicate. Thus, application of market share liability to such a manufacturer would impose on it disproportionately high share of the damages awarded.
As we find that application of market share liability to lead paint cases would grotesquely distort liability, we decline to apply it in this case.
The theory of alternative liability dictates that tortfeasors who act in concert will be held jointly and severally liable for the plaintiff's injury unless the tortfeasors are able to prove that they have not caused the harm. The leading case on this doctrine was Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). In Summers, the plaintiff was struck by pellets shot from one of the two defendants' guns. Plaintiff could not establish which of the defendants had actually injured him, but could prove that both had acted negligently. The California [547 Pa. 235] Supreme Court held that where the evidence showed that the two defendants negligently shot at about the same time and that the pellets from one of their guns struck the plaintiff, the burden of proving which defendants' shot struck the plaintiff shifted to the defendants; the court further held that in the absence of further evidence, judgment could be properly entered against both defendants. Id. at 86-88, 199 P.2d at 4-5.
We adopted this theory of liability in Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707 (1970). In Snoparsky, several stones were thrown at plaintiff by the defendants. Only one stone, however, struck and injured the plaintiff. The plaintiff in Snoparsky was allowed to proceed under alternative liability because the tortious conduct of defendant was simultaneous and identical, and the plaintiff joined all potential tortfeasors as defendants. See id.; see also Sommers v. Hessler, 227 Pa.Super. 41, 323 A.2d 17 (1974).
The trial court correctly concluded that alternate liability theory is inapplicable to the matter sub judice. First, Appellees did not act simultaneously in producing the lead paint. Over the one hundred year period at issue, several of the named Appellees entered and left the lead paint market. R.R. at 336a-349a; 578a579a. Second, it is uncontroverted that Appellants have failed to join all entities which manufactured lead paint over the one hundred year period, R.R. 336a-349a, and therefore have failed to join all potential tortfeasors.
The next issue is whether the trial court correctly entered summary judgment in favor of Appellees on Appellants' civil conspiracy claim. In order to state a cause of action for civil conspiracy, a plaintiff must show "that two or more persons combined or agreed with intent to do an unlawful act or to do an otherwise lawful act by unlawful means. Proof of malice, i.e., an intent to injure, is essential in proof of a conspiracy." Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 211, 412 A.2d 466, 472 (1979) (citations omitted). Thus, in order to withstand summary judgment on this claim, Appellants must have produced evidence which would establish that [547 Pa. 236] Appellees acted in concert to commit an unlawful act or do a lawful act by unlawful means, and that they acted with malice.
Appellants have failed to introduce evidence which would support their cause of action for civil conspiracy. First, Appellants have failed to introduce evidence that Appellees were acting in concert. Second, Appellants have also failed to demonstrate malice on the part of Appellees.
The final question for this court to review is whether the trial court properly entered summary judgment in favor of Appellees on Appellants' concert of action claim. This theory provides in pertinent part that "[f]or harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him...." Restatement (Second) of Torts, § 876.
We find that Appellants failed to establish that they had a cause of action for concert of action as they are unable to identify the manufacturer of any of the lead pigment found at Skipworth's residence that was ingested by her and allegedly caused her injuries. As they are unable to identify any one of the lead pigment manufacturers as the wrongdoer, we therefore hold that the trial court correctly entered summary judgment on the concert of action claim.
[547 Pa. 237] For the reasons set forth herein, the order of the Superior Court is affirmed.
1 Appellants also sued the owner and manager of the property within which Skipworth resides as well as the City of Philadelphia's Department of Health. These other defendants are not parties in this appeal.
2 We note that one of the Appellees, the Sherwin-Williams Company ("Sherwin-Williams"), has asserted that we need not address the market share liability issue because the materials upon which Appellants rely for their market share liability argument are inadmissible and therefore their claim cannot survive summary judgment on this basis alone. Sherwin-Williams asserts that several reports filed by Appellants as affidavits are inadmissible because these reports were unsworn. See Pa.R.C.P. No. 76, "affidavit". The exhibits to which Sherwin-Williams points are the reports and letters of Barach & Company, Dr. Henretig, Dr. Golinkoff, Dr. Smith, and Environmental Protection Inspection, Inc.
After exhaustive review of the record, however, we have found no indication that Sherwin-Williams raised this issue prior to raising it on appeal to this court. Therefore, we conclude that this issue has been waived. See Pa.R.A.P. 302(a).
3 It would appear that this theory emanated from an article written by a law student. See Comment, DES and a Proposed Theory of Enterprise Liability, 46 Fordham L.Rev. 963 (1978).
4 Even courts from other jurisdictions which have adopted this theory have recognized that it is a significant modification of or deviation from the traditional theories of causation. Sindell, 26 Cal.3d at 610, 607 P.2d at 936, 163 Cal.Rptr. at 144; Martin v. Abbott Laboratories, 102 Wash.2d 581, 602, 689 P.2d 368, 381 (1984).
5 The term "bioavailability" refers to "the extent to which the lead is in a form which is easily internalized by the body, i.e., the extent to which it is in a form which can be physiologically transported through the lungs, gastrointestinal tract, skin, etc. and absorbed into the bloodstream...." R.R. at 313a-314a.