Jacklin Romeo, Susan S. Rine, and Debra Snyder Miller v. Antero Resources Corporation (Justice Walker, dissenting)

IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT CAROLEEN JAKMIAN, : No. 266 EAL 2024 : Petitioner : Petition for Allowance of Appeal : from the Unpublished : Memorandum Opinion and Order v. : of the Commonwealth Court at No. : 665 CD 2023 (Covey, Wojcik, : Ceisler, JJ.), entered on July 16, CITY OF PHILADELPHIA AND : 2024, affirming the Lower Court SOUTHEASTERN PENNSYLVANIA : Order of the Philadelphia County TRANSPORTATION AUTHORITY, : Court of Common Pleas at No. : 201001469 (Schulman, J.), entered Respondents : on June 12, 2023 : CONCURRING STATEMENT JUSTICE DOUGHERTY FILED: June 11, 2025 The petitioner in this case suffered injuries on a Philadelphia street after the front tire of her bicycle became stuck in a SEPTA trolley track that has been out of use since 1992. She filed a civil complaint alleging the “trolley track is an artificial condition, affixed to Commonwealth real estate, that inherently . . . constitute[s] a dangerous condition” within the meaning of the real estate exception to the Sovereign Immunity Act. Petition for Allowance of Appeal at 23, citing 42 Pa.C.S. §8522(b)(4) (explaining that “sovereign immunity shall not be raised to claims for damages caused by . . . [a] dangerous condition of Commonwealth agency real estate”). However, the trial court granted SEPTA’s motion for nonsuit before the case reached the jury. According to the court, “the existence of the real estate itself cannot be the dangerous condition; rather there must be evidence that some derivative condition of the real estate created a dangerous condition.” Trial Court Op., 8/3/23, at 7, citing Snyder v. Harmon, 562 A.2d 307 (Pa. 1989). The court further reasoned that “[u]nless a condition is so plainly dangerous that a lay person can come to that conclusion by merely observing the condition, expert testimony is needed to explain why the condition is defective.” Id. at 9; see id at 10 (noting petitioner “failed to show how a trolley rail would be an obvious danger such that expert testimony was not needed to prove that it was, in fact, dangerous”). Respectfully, I question whether these conclusions accurately reflect the law. First, our decision in Snyder does not support the trial court’s statement that “the real estate itself cannot be the dangerous condition[.]” Id. at 7. In fact, it suggests the exact opposite. In Snyder, we explained the “unambiguous language of Section 8522(b)(4) . . . indicate[s] that a dangerous condition must derive, originate from or have as its source the Commonwealth realty.” 562 A.2d at 311. We certainly did not hold that real estate — or, more accurately, an artificial condition (like a trolley track) affixed to Commonwealth agency real estate (like a highway) — cannot itself pose a dangerous condition as understood by Section 8522(b)(4).1 On the contrary, it is settled that “the Commonwealth may not raise the defense of sovereign immunity when a plaintiff alleges, for example, that . . . an object on Commonwealth realty was the result of a defect in the 1 At trial, petitioner elicited testimony that SEPTA is responsible for the trolley tracks in question, as well as the space “between the rails and 18 inches outside of the rails.” N.T. Trial, 2/6/23, at 140-41; see also N.T. Trial, 2/7/23, at 8, 10-11 (same). Thus, as I see it, the relevant “real estate” includes the portion of the highway over which SEPTA has assumed control. See id. at 148 (explaining “SEPTA’s right-of-way area shall mean the portions of the right-of-way in which the railway tracks owned and operat[ed] by SEPTA are located including the rails and ties, and the space between the rails, and for 18 inches on each side of the rails”). Surely, the tracks themselves constitute “Commonwealth- owned real property,” 42 Pa.C.S. §8522(b)(4), and “[i]t is a well settled tenet of property law that whatever is annexed to the land becomes land.” Cagey v. Commonwealth, 179 A.3d 458, 464 (Pa. 2018). But this does not change the fact that the statute also deems as real estate “highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5) [(relating to potholes, sinkholes or other similar conditions create

IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT CAROLEEN JAKMIAN, : No. 266 EAL 2024 : Petitioner : : Petition for Allowance of Appeal : from the Order of the v. : Commonwealth Court : : CITY OF PHILADELPHIA AND : SOUTHEASTERN PENNSYLVANIA : TRANSPORTATION AUTHORITY, : : Respondents : ORDER PER CURIAM AND NOW, this 11th day of June, 2025, the Petition for Allowance of Appeal is DENIED. Justice Dougherty files a concurring statement.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 2025 Term FILED _____________________ June 11, 2025 released at 3:00 p.m. C. CASEY FORBES, CLERK No. 23-589 SUPREME COURT OF APPEALS OF WEST VIRGINIA _____________________ JACKLIN ROMEO, SUSAN S. RINE, and DEBRA SNYDER MILLER, Plaintiffs Below, Petitioners, v. ANTERO RESOURCES CORPORATION, Defendant Below, Respondent. ___________________________________________________________ Certified Questions from the United States District Court for the Northern District of West Virginia The Honorable Thomas S. Kleeh, Chief Judge Civil Action No. 1:17-CV-88-TSK-MJA CERTIFIED QUESTIONS ANSWERED _________________________________________________________ Rehearing Granted: December 31, 2024 Submitted Upon Rehearing: April 22, 2025 Filed: June 11, 2025 George A. Barton, Esq. W. Henry Lawrence, Esq. Barton and Burrows, LLC Amy M. Smith, Esq. Mission, Kansas Lauren K. Turner, Esq. Steptoe & Johnson PLLC L. Lee Javins II Esq. Bridgeport, West Virginia Taylor M. Norman, Esq. Bailey, Javins & Carter, L.C. Elbert Lin, Esq. Charleston, West Virginia Hunton Andrews Kurth LLP Richmond, Virginia Howard M. Persinger, III Daniel T. Donovan, Esq. Persinger & Persinger, L.C. Kirkland & Ellis LLP Charleston, West Virginia Washington, D.C. Counsel for Petitioners Counsel for Respondent CHIEF JUSTICE WOOTON delivered the Opinion of the Court. JUSTICE ARMSTEAD, deeming himself disqualified, did not participate in the decision of this case. JUDGE HARDY, sitting by designation. JUSTICE WALKER dissents and reserves the right to file a separate opinion. JUSTICE BUNN dissents and reserves the right to file a separate opinion.  SYLLABUS BY THE COURT 1. “‘“A de novo standard is applied by this court in addressing the legal issues presented by a [sic] certified questions from a federal district or appellate court.” Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998).’ Syllabus Point 2, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).” Syl. Pt. 1, Harper v. Jackson Hewitt, Inc., 227 W. Va. 142, 706 S.E.2d 63 (2010). 2. “If an oil and gas lease provides for a royalty based on proceeds received by the lessee, unless the lease provides otherwise, the lessee must bear all costs incurred in exploring for, producing, marketing, and transporting the product to the point of sale.” Syl. Pt. 4, Wellman v. Energy Res., Inc., 210 W. Va. 200, 557 S.E.2d 254 (2001). 3. Except as may be specifically provided by the parties’ agreement, where an oil and gas lease contains an express or implied duty to market, the requirements of Wellman v. Energy Resources, Inc., 210 W. Va. 200, 557 S.E.2d 254 (2001), and Estate of Tawney v. Columbia Natural Resources, L.L.C., 219 W. Va. 266, 633 S.E.2d 22 (2006), extend to the point of sale, not just to the point of marketability or to the first available market. 4. Except as may be specifically provided by the parties’ agreement, royalties are payable to the mineral owner/lessor not only from the producer/lessee’s sale of wet gas i and residue gas but also from the lessee’s sale of any byproducts of the wet gas such as natural gas liquids. 5. “‘The general rule as to oil and gas leases is that such contracts will generally be liberally construed in favor of the lessor, and strictly as against the lessee.’ Syllabus Point 1, Martin v. Consolidated Coal & Oil Corp., 101 W.Va. 721, 133 S.E. 626 (1926).” Syl. Pt. 7, Est. of Tawney, 219 W. Va. 266, 633 S.E.2d 22 (2006). 6. “‘The question as to whether a contract is ambiguous is a questio

No. 23-569, Camden-Clark Memorial Hospital Corporation; Camden-Clark Health Services Inc.; West Virginia United Health System, Inc. d/b/a West Virginia University Health System; and West Virginia University Hospitals, Inc. v. Marietta Area Healthcare, Inc.; Marietta Memorial Hospital; and Marietta HealthCare Physicians,FILED Inc. June 11, 2025 released at 3:00 p.m. C. CASEY FORBES, CLERK BUNN, Justice, concurring in part and dissenting in part: SUPREME COURT OF APPEALS OF WEST VIRGINIA I concur with the majority’s answers to the first and second questions certified to this Court from the United States District Court for the Northern District of West Virginia, which recognize a cause of action for negligent supervision and define its elements. Yet, I dissent to the remainder of the majority’s opinion, which unnecessarily answers the district court’s third certified question and ultimately holds that intentional or reckless torts can form the basis for a negligent supervision claim. In answering the second certified question, the majority sets forth straightforward, easily applied elements of negligent supervision, making the majority’s answer to the third certified question unnecessary and superfluous. Likewise, the majority’s addition of a new syllabus point relating to the third certified question is unwarranted. Furthermore, while I concur in the majority’s determination of negligent supervision’s elements, I write separately to caution that negligent supervision is, in essence, a narrow subset of ordinary negligence, requiring the case-by-case factual analysis applicable to all negligence claims. I further emphasize that the factual circumstances in which an employer may be held liable to a plaintiff for negligent supervision, when the employee’s intentional tort caused the plaintiff harm, are likely quite rare. 1  A brief factual recitation and the underlying proceedings is helpful to provide context to my analysis. The respondents, the plaintiffs in the underlying action in federal court, alleged in relevant part1 that the petitioners, defendants in the underlying action, negligently failed to supervise their employees “in the pursuit and assistance in the pursuit” of a separate qui tam action against the respondents. In that negligent supervision count, respondents also asserted that the “initiation and pursuit of the qui tam action and the federal investigation consisted of tortious conduct.” The district court deferred ruling on the petitioners’ motion to dismiss the negligent supervision count and instead certified questions asking this Court whether negligent supervision is a cause of action in West Virginia, to set forth the elements of negligent supervision, and to determine whether a negligent supervision claim survives if the employee engages in an intentional or reckless tort. A. The Majority Erred By Answering Question Three The district court’s third certified question asks “[c]an intentional or reckless torts committed by an employee form the basis for a claim for negligent supervision against the employer?” I would have declined to answer this question, as the answer is unnecessary for the district court’s analysis in the underlying case given the Court’s answer to the second certified question. This Court recently explained, in City of Huntington v. AmerisourceBergen Drug Corp., that a “certified question’s purpose is to ‘determine [the] 1 These allegations are taken from the Second Amended Complaint, the operative complaint in the case pending before the district court. 2 legal correctness’ of certain issues that are ‘critical’ to ‘determine the final outcome of a case.’” ___ W. Va. ___, ___, ___ S.E.2d. ___, ___, 2025 WL 1367333, at *6 (W. Va. May 12, 2025) (quoting Bass v. Coltelli, 192 W. Va. 516, 520, 453 S.E.2d 350, 354 (1994), superseded by statute, W. Va. Code § 58-5-2, as recognized by Smith v. Consol. Pub. Ret. Bd., 222 W. Va. 345, 664 S.E.2d 686 (2008)) (discussing certification of questions by a state court). This Court further held that when answering a certified question from a federal court, “the legal issue must substantially control the case.” Syl. pt. 2, in part, id. The majority’s answer to district court’s third question disregards those restrictions. The majority, in answering the second certified question, provides the district court enou

FILED No. 24-27, Elaine Neidig, individually and on behalf of all others similarly situated v. Valley Health System June 10, 2025 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK ARMSTEAD, Justice, dissenting: SUPREME COURT OF APPEALS OF WEST VIRGINIA The West Virginia Medical Professional Liability Act, West Virginia Code §§ 55-7B-1 – 12 (“MPLA”), is, by design, a broad and encompassing measure designed to govern civil actions arising from the provision, or failure to provide, adequate health care services to our citizens. The majority’s opinion in this case improperly limits the scope and coverage of the MPLA. Accordingly, I dissent from the majority’s answer to the certified question from the United States Court of Appeals for the Fourth Circuit because I believe that, by following the majority’s opinion, a plaintiff may avoid application of the MPLA by utilizing artful pleading, a result that has previously been soundly rejected by this Court. Ms. Neidig creatively couches her claims as unfair and deceptive acts and practices pursuant to the West Virginia Consumer Credit Protection Act (W. Va. Code §§ 46A-6-101 – 110), breach of contract, and unjust enrichment. What the majority opinion fails to recognize is that the petitioner’s unfair and deceptive acts and practices, breach of contract, and unjust enrichment claims are all based upon a deviation from the standard of care for a mammogram. In other words, Ms. Nedig will, essentially, have to establish a medical negligence claim in order to prevail. The majority incorrectly centers its attention, not upon the nature of the petitioner’s factual allegations, but upon her characterization of the type of damages she seeks. Additionally, the petitioner’s breach of contract claim is an anchor claim that falls within the terms of the MPLA. As such, I firmly believe that the 1 United States District Court for the Northern District of West Virginia was correct in its decision that the petitioner’s claims fall squarely within the scope of the MPLA. Because the MPLA applies to this case and the allegations in the petitioner’s complaint fall outside the one-year statute of limitations governing the MPLA, the petitioner’s complaint should be dismissed. Accordingly, I would answer the Fourth Circuit’s original certified question in the affirmative. As noted by both the majority and Justice Walker’s concurrence, for the MPLA to apply, a cause of action must fall within the Act’s definitions of “medical professional liability” and “health care.” Under the Act, “medical professional liability” is defined broadly to mean: [A]ny liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient. It also means other claims that may be contemporaneous to or related to the alleged tort or breach of contract or otherwise provided, all in the context of rendering health care services. Id. § 55-7B-2(i) (emphasis added). The Legislature has defined the term “injury” to mean “injury or death to a patient arising or resulting from the rendering of or failure to render health care.” Id. § 55-7B-2(h). Finally, “health care,” is defined, in relevant part, as: Any act, service or treatment performed or furnished, or which should have been performed or furnished, by any health care provider or person supervised by or acting under the direction of a health care provider or licensed professional for, 2  to, or on behalf of a patient during the patient’s medical care, treatment or confinement, including, but not limited to, staffing, medical transport, custodial care, or basic care, infection control, positioning, hydration, nutrition, and similar patient services. Id. § 55-7B-2(e)(2). We have stated that a health care claim is the necessary anchor from which MPLA application flows: The “health care” claim is the “anchor;” it gets you in the door of MPLA application to allow for inclusion of claims that are “contemporaneous to or related to” that claim, but still must be in the overall context of rendering health care se