Tuesday, October 16, 2018

Non Pros Default Judgment Entered Due to Faulty Certificates of Merit Stricken Due to No Prejudice Arising From Technical Errors

In the medical malpractice case of Leo v. Geisinger Community Medical Center, No. 17-CV-5805 (C.P. Lacka. Co. Oct. Sept. 25, 2018 Nealon, J.), the court granted Plaintiff relief from non pros judgments pursuant to Pa.R.C.P. 3051, pertaining to Certificates of Merit.  

According to the Opinion, this medical malpractice action arose out of allegations pertaining to thyroid surgery and treatment.  

The Plaintiff’s Complaint asserted various malpractice claims and attached a report authored by the Defendant surgeon which arguably contained admissions regarding the alleged surgical and pathological errors.  

The Plaintiff filed Certificates of Merit as to each Defendant but inadvertently failed to check the appropriate boxes on the form to indicate that the Plaintiff possessed expert support for the negligence and vicarious liability claims or, in the alternative, was proceeding based upon the theory of res ipsa loquitur.

The Defendants filed Judgments of Non Pros pursuant to Pa.R.C.P. 1042.7 based upon the Plaintiff’s alleged failure to satisfy the Certificate of Merit requirement contained in Pa.R.C.P. 1042.3.  

When the Plaintiff filed a Petition for Relief from the Non Pros Judgments, the Clerk of Judicial Records struck those judgments. The Defendants responded with the motion at issue seeking to strike the Plaintiff’s Petition and reinstate the non pros judgments.   

After reviewing the law pertaining to relief from non pros judgments, the court noted that the Plaintiff had timely filed the Petition for Relief within nine (9) days of entries of the judgment and the parties’ submissions confirmed that the initial failure to check the indicated boxes on the Certificates of Merit forms was attributed to an oversight or mistake by the secretary for Plaintiff’s counsel during Plaintiff’s counsel’s period of medical incapacity and convalescence.

 The court also noted that, in addition to furnishing a reasonable explanation for the original default, which was subsequently cured by the filing of corrected Certificates of Merit, the Plaintiff had also provided factual support for concluding that her claims against the Defendants were supported by expert testimony and were potentially meritorious in any event.  

Judge Nealon further ruled that, since the defense counsel and the carriers were apprised by the Plaintiff’s theories of liability and the identity of her expert witness prior to the filing of the Plaintiff’s flawed Certificates of Merit, there was no prejudice to the Defendants by virtue of the Plaintiff’s belated filing of a fully compliant Certificate of Merit.   Judge Nealon therefore reasoned that Rule 1042.3’s purpose of eliminating meritless malpractice suits at their inception would not be frustrated by allowing this litigation to proceed.

Accordingly, the court found the Plaintiff was indeed entitled to relief from the non pros judgments pursuant to Pa.R.C.P. 3051.  Consequently, the Defendants’ Motion to Strike the Plaintiff’s Petition for Relief and to Re-enter the Non Pros Judgments was denied.  

Anyone wishing to review this Opinion may click this LINK.


Monday, October 15, 2018


Please call 570-346-0745 or email me at dancummins@comcast.net to schedule your Mediation.

HOPE TO SEE YOU THERE: Presenting Forrest Gump Themed Civil Litigation Update Seminar at Nov. 8, 2018 Luzerne Co. Bench Bar Conference

On November 8, 2018, Daniel E. Cummins of the Scranton law firm of Foley, Comerford & Cummins along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price,  will be presenting a CLE seminar entitled "The Law is Like a Box of Chocolates:  A Forrest Gump Themed Civil Litigation Update" at the Luzerne County Bench Bar Conference at the Mohegan Sun Casino in Wilkes-Barre, PA.

Video clips of famous quotes from the movie Forrest Gump will be used in an effort to make the civil litigation update an entertaining hour for the attendees.

Hope to see you there.

We thank Attorney Jamie Anzalone, the Chair of the Luzerne County Bench Bar Committee and partner of the Anzalone Law Firm for this opportunity to present.

We also thank Joe Cardoni of Exhibit A for assisting us in putting the Powerpoint Presentation together and for be willing to assist us with the playback at the seminar.

Friday, October 12, 2018



One of the best ways to keep your files moving is to answer the regular mail that comes in on the day that it comes in -- as you open your mail, dictate a letter or email in response to the mailing or to the client with a status update.

Give any mailings that provide notice of appointments for your calendar to your assistant with the rule being that the assistant must mark it down on the calendar the same day as opposed to being able to put it aside to do later.

When you run through your mail right away, it's done.  And the case is one step, however small, moved forward and closer to its eventual conclusion, whatever that may be.

As Ben Franklin once said, "Don't put off until tomorrow what you can do today."

Punitive Damages Claims Allowed Against Tractor Trailer Driver Allegedly Using Cell Phone in White Out Conditions


In the case of Ehler v. Old Dominion Freight Line, No. 2018 -00307 (C.P. Lebanon Co. Aug. 30, 2018 Charles, J.), the court denied Preliminary Objections filed by a trucking Defendant against claims of recklessness and punitive damages based upon allegations that the commercial truck driver was allegedly using a cell phone at the time of the accident. 

This matter arose out of a multi-vehicle accident involving 64 vehicles under wintry conditions on a highway.  

After reviewing the general law pertaining to punitive damages, the court also pointed to Pennsylvania’s Distracted Driving Law, 75 Pa. C.S.A. §1622, which prohibited commercial drivers from utilizing hand held mobile devices while driving, except in emergency situations.  

The court otherwise noted that a review of case law from Pennsylvania and other jurisdiction did not provide a clear consensus as to whether the use of a cell phone while driving, in and of itself, constituted recklessness.

However, the court noted that, under the facts before it, driving a commercial truck while using a cell phone was a violation of state law.  

The court additionally noted that the weather involved white out conditions at the time of the accident.   The court included this factor in determining that the Preliminary Objections should be denied on claims of recklessness in terms of using a cell phone while driving a commercial vehicle in white out conditions.  

Although the court denied the Preliminary Objections, it noted that the issue could be subject to further review once discovery was completed on issues presented.  

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (October 2, 2018).

Thursday, October 11, 2018

Assumption of Risk Doctrine Valid and Can Support Entry of Summary Judgment (But Summary Judgment Denied Here)

In his recent decision in the case of Smerdon v. GEICO, No. 4:16-cv-02122 (M.D. Pa. Sept. 21, 2018 Brann, J.), the court granted in part and denied in part a Motion for Summary Judgment filed by Defendant GEICO, and granted a Motion for Partial Summary Judgment by the Plaintiffs in a Post-Koken uninsured motorist matter.

According to the Opinion, the Plaintiff was shopping at a Wal-Mart in Mansfield, Tioga County, Pennsylvania when a robber demanded cash from a customer service employee.   The Plaintiff and several others chased the robber out into the parking lot and towards the robber’s car, which the robber had left running.  

While these individuals scuffled with the robber, the Plaintiff entered the passenger side of the vehicle and attempted to remove the keys from the ignition.  The robber put the vehicle in drive, stepped on the gas, and the Plaintiff was injured by the vehicle as a result.  

As the robber had no car insurance, the Plaintiff pursued an uninsured motorist claim against GEICO.  

Under the GEICO uninsured motorist provisions of the policy, it was provided that the Plaintiff must prove that she was “legally entitled to recover” from the operator of an uninsured motor vehicle in order to recover UM benefits.   

The Plaintiff filed a Complaint against GEICO alleging breach of contract and bad faith.  Under the breach of contract claim, the Plaintiff sought a declaratory judgment requiring GEICO to cover her for uninsured motorist coverage.  The Plaintiff filed a bad faith count seeking damages, arguing that GEICO’s handling of her claim amounted to bad faith under 42 Pa. C.S.A. §8371.   

A main issue before the court was whether the assumption of risk doctrine operated as a total bar to the Plaintiff’s recovery such that she was not "legally entitled to recover" against the uninsured operator of the vehicle that injured her.  

Judge Matthew W. Brann
M.D. Pa.
In his Opinion, Judge Brann reaffirmed the continuing validity of the assumption of risk defense under Pennsylvania law.   The court noted that, “[a]lthough disfavored and narrowly applied, assumption of the risk remains a viable affirmative defense under Pennsylvania law.”   See Op. at p. 7 [citations omitted].

Notably, the court additionally confirmed that summary judgment can be granted on the assumption of risk doctrine as a matter of law.   Id.  

In this regard, Judge Brann stated that, “to grant summary judgment on assumption of the risk as a matter of law, the court must – conclusively and beyond question – find that the Plaintiff was subjectively aware of a specific risk, voluntarily accepted it and acted in spite of that risk, and suffered harm contemplated by that specific risk.”  Id.  citing with “See, e.g.” signal, Zeidman v. Fisher, 980 A.2d 637, 641, Pa. Super. 2009).

Here, the court denied GEICO’s motion and granted the Plaintiff’s motion on the assumption of risk issue.   In this regard, Judge Brann found that there were no facts that demonstrated that the Plaintiff was aware of the particular danger from which she was ultimately injured.  

More specifically, there were no facts to establish that the Plaintiff was specifically aware of the risks that the robber would run her over with his vehicle or otherwise cause her to fall down and strike her head on the pavement.   

The Court noted that awareness of a general risk of harm does not amount to an awareness of a specific risk as required by the assumption of risk doctrine.   

The court also held that, under the assumption of risk doctrine, a court should look at what a Plaintiff actually knew, appreciated, and assumed in terms of the risks, rather than what a Plaintiff should have known under the circumstances.   Here, the court found that there were no facts to demonstrate that the Plaintiff was subjectively aware of the danger that would eventually befall her.  

Judge Brann also found that there were no circumstances where the risk of harm was so obvious with this case in that the Plaintiff implied relieved the robber from exercising due care for the Plaintiff’s safety.   

Accordingly, based upon the above factors, the court concluded that the assumption of risk doctrine did not serve to bar the Plaintiff’s claims.  
The court also added that, to the extent that GEICO questions the reasonableness of the Plaintiff’s actions at trial, that is an inquiry that should be resolved through comparative negligence principles and not assumption of the risk principles.  The court noted that whether the Plaintiff acted reasonably under the circumstances remains an issue for the jury to decide.   

On the separate bad faith claim, GEICO asserted that it did not act in bad faith because it had a reasonable basis to assert the assumption of the risk doctrine as an affirmative defense and given that GEICO did not unreasonably delay the matter in evaluating the case presented.  

After reviewing the law of bad faith under §8371, Judge Brann held that the Plaintiff cannot sustain her burden of proof on the bad faith claim.   The court found that GEICO had a reasonable basis to question coverage because the assumption of risk doctrine remains a valid defense under Pennsylvania law.   

The Court found that the fact that GEICO ultimately erroneously relied upon that doctrine in this case, did not advance the Plaintiff’s bad faith claim because the presence or absence of bad faith does not turn on the legal correctness of the basis for a carrier’s denial of an insured’s claim.   

The court additionally noted that, even if it was assumed that GEICO lacked a reasonable basis to rely upon the assumption of risk doctrine as an affirmative defense, the Plaintiff still failed to present clear and convincing evidence that GEICO knew or recklessly disregarded that lack of a reasonable basis as required by bad faith liability.   

Judge Brann reiterated that, under the bad faith statute, the Plaintiff’s burden of proof is “substantial: ‘Bad faith must be proven by clear and convincing evidence and not merely insinuated.  This heightened standard requires evidence so clear, direct, weighty, and convincing as to enable a clear conviction, without hesitation, about whether or not the Defendants acted in bad faith.’”   [citations omitted].  

The court additionally found that the Plaintiff could not show that GEICO unreasonably delayed in the handling of her claim as the parties communicated with each other over several months in an effort to resolve the case.   Judge Brann also noted that, by the time the Plaintiff filed her Complaint, she had still not produced certain documentation, including the police report, requested by the carrier.   As such, the court found that any delay incurred in GEICO’s resolution of Plaintiff’s claims cannot be construed as unreasonable.  

In the end, the court noted that, because no reasonable jury could find in the Plaintiff’s favor, GEICO’s Motion for Summary Judgment on the bad faith claim was granted. 

Anyone wishing to review a copy of this decision may click this LINK.  Here is a LINK to the companion Order of Court.