Monday, April 24, 2017

Opinion Addressing the Quantity Part of the Quantity/Quality Test for Proper Venue Against a Business Entity

In the case of Dildine v. Western Alliance Emergency Services, No. 2016-CV-2335 (C.P. Lacka. Co. April 19, 2017 Nealon, J.), the court addressed the "quantity" part of the quantity/quality test for determining whether a corporation regularly conducted business in a particular county for proper venue purposes.

In this case a Bradford County resident filed suit in Lackawanna County against a Bradford County ambulance driver and his Bradford County employer for injuries allegedly arising out of a Bradford County motor vehicle accident.

The Defendants file Preliminary Objections challenging venue.  In response, the Plaintiffs asserted that the Defendant employer regularly conducted business in Lackawanna County such that venue would be proper against all Defendants under the venue rules found at Pa.R.C.P. 1006 and 2179.

Judge Nealon cited to the precedent holding that, to support a finding that a business regularly conducted business in a particular county for venue purposes, the quantity of that entity's activities in the desired county must be "so continuous and sufficient to be general or habitual."

Applying the venue rules to the case before him, Judge Nealon found that the Defendant employer's activities in Lackawanna County were not sufficient to support the filing of the lawsuit in Lackawanna County.

As such, the Defendant's Preliminary Objections were sustained and the case was transferred to Bradford County with the costs of the transfer ordered to be borne by the Plaintiff.

Anyone wishing to review this decision may click this LINK.

Saturday, April 22, 2017


REMINDER:  This Wednesday, April 26, 2017, is Administrative Professionals (Secretary's) Day. A show of gratitude towards those who assist us in our day-to-day work will likely be greatly appreciated.

Friday, April 21, 2017

Motion to Sever and Stay Bad Faith Claim Denied in Fayette County Case

In a recent March 23, 2017 Order only out of the Court of Common Pleas of Fayette County in the case of Rimel v. Mutual Benefit Insurance Company and State Farm Mutual Automobile Insurance Company, No. 2450 of 2016, G.D., (C.P. Fayette Co. March 23, 2017 Cordaro, J.),Judge Linda R. Cordaro denied the Motion of Defendant, Mutual Benefit Insurance Company, to Sever and Stay a Bad Faith Claim.  

Anyone wishing to secure a copy of this Order may contact me at   Again, this decision is by Order only and without any Opinion.  

I send thanks to Attorney Brad D. Trust of the Pittsburgh, PA law office of Edgar Snyder & Associates, LLC, for bringing this Order to my attention.

Bifurcation of Coverage and Bad Faith Issues Denied in Eastern District Case

In the case of Eizen Fineberg & McCarthy, P.C. v. Ironshore Specialty Ins. Co., No. 16-2461 (E.D. Pa. Dec. 7, 2016 Slomsky, J.), the court denied a carrier’s Motion to Bifurcate the insured’s bad faith claim from a coverage claim. 

The carrier argued that the bad faith claims were dependent upon a finding of a breach of contract and that it would impose unnecessary discovery burdens on the parties in a case that could be resolved through a finding of no coverage (and, therefore, no bad faith).  

The court refused to find that the insured’s bad faith was dependent upon the carrier’s coverage claim.   The court noted that there could be other bases for the claim for bad faith.   The court also noted that judicial economy would be served by litigating the two (2) claims together.  

Anyone wishing to review this case may click this LINK.
I send thanks to Attorney Lee Applebaum of the law firm of Fineman Krekstein & Harris and the writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention. 

Wednesday, April 19, 2017

Superior Court Addresses Post-Tincher Issues

In its recent decision in the case of Renninger v. A&R Machine Shop, 1896 WDA 2015 (Pa.Super. April 11, 2017 Lazarus, Stabile, Strassburger, J.J.)(Op. by Stabile), the Pennsylvania Superior Court upheld a defense verdict in one of the first Post-Tincher product liability cases to go up the appellate laddert.

In its Opinion, the court rejected a plaintiff’s narrow reading of the Tincher, writing, as follows:
“Appellants take a very narrow reading of Tincher, seemingly concluding that it overruled Azzarello but did little else.  Even a cursory reading of Tincher belies that argument. . . .  The Tincher Court did anticipate that its holding would have significant ripple effects to be addressed case by case as they arise.”

The Superior Court also noted that, after Tincher, it did not consider itself bound by pre-Tincher precedent:
“Ordinarily, this Court is bound by Supreme Court precedent, as well as the published decisions of prior en banc and three-judge panels of this Court. In the wake of Tincher, however, the bench and bar must assess the Tincher opinion’s implications for a large body of post-Azzarello and pre-Tincher case law.”

Anyone wishing to review this decision may click this LINK. 

I send thanks to Attorney James Beck of the Philadelphia Office of the Reed Smith law firm for bringing this case to my attention.

Pennsylvania Superior Court Rules that Insomnia is Not a Serious Injury in Limited Tort Context

In the case of Vetter v. Miller, 2017 Pa. Super. 64 (Pa. Super. March 10, 2017) (Ransom, J., Ford Elliot, P.J.E., Stephens, P.J.E.) (Op. by Ransom, J.), the court affirmed the trial court's decision that a Plaintiff's insomnia did not amount to a serious impairment of a body function for a limited tort Plaintiff under the facts presented.  

This decision was also notable for the Pennsylvania Superior Court’s analysis of what types of motor vehicle accident related criminal charges may be admissible in a subsequent civil case.   The court noted that all motor vehicle code violations are not of equal gravity.  

For example, the court noted that, while evidence of a conviction of driving while intoxicated may be admissible if supported by ample evidence of intoxication, a guilty plea of driving with a suspended license was only a summary offense that should not have been admitted in the court below.

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

I send thanks to Attorney James A. Beck from the Philadelphia office of the Reid Smith law firm for bringing this decision to my attention.  

Tuesday, April 18, 2017

Third Circuit Rules on Authentication and Admissibility of Facebook Chats

In a recent decision in the case United States v. Browne, 834 F.3d 403 (3d Cir. 2016 Fisher, Krause, Roth, J.J.)(Op. by Krause, J.), addressed the proper authentication and admissibility of social media posts.  The case involved an appeal of a  criminal case from the U.S. Virgin Islands.  Although this decision arises out of a criminal case, the rationale regarding the authentication and admissibility of Facebook chats may prove useful in the context of a civil litigation matter.

The 3rd circuit rejected the government's argument that pursuant to F.R.E. 902(11) the contents of "chats" exchanged over Facebook were "self-authenticating" as business records when accompanied by a certificate from Facebook's records custodian.   The court more specifically ruled that the “chats” on Facebook were not business records under FRE 803(6) and thus could not be self-authenticated under FRE 902(11). 

The court nonetheless affirmed the appellant's conviction finding the trial record reflected more than sufficient extrinsic evidence to link the Appellant to the chats and thereby satisfy the government's authentication burden under a FRE 901 analysis.

Anyone wishing to review this decision, may click this LINK.

I send a thanks to Brian J. Murren, a law clerk with the Camp Hill, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.