Friday, July 21, 2017

Judge Nealon of Lackawanna County Addresses Coverage Issues in a Declaratory Judgment Action

In the case of Penn National Ins. Co. v. Kapinus, No. 2016 - CV - 3379 (C.P. Lacka. Co. July 12, 2017 Nealon, J.), Judge Terrence R. Nealon sustained in part and denied in part an insured's Preliminary Objections in a declaratory judgment action on coverage.

In this matter a commercial insurance carrier who issued a liability policy to business owned by the father of a personal injury plaintiff filed a declaratory judgment seeking a judicial declaration that it need not provide coverage on the son's claims given that the father misrepresented information as to whether his son had worked for the father's business in the past.

In his preliminary objections, the son asserted that material misrepresentations in this context must relate to the application for insurance and not to alleged fraud in the later prosecution of a claim. Judge Nealon disagreed with this assertion and denied the preliminary objections in this regard.

The court did sustain the son's preliminary objections that asserted the the duty to cooperate under the policy only pertained to the defense of the underlying matter and not with respect to the carrier's efforts to gather information with respect to a decision to deny coverage under the policy.

Anyone wishing to review this opinion by Judge Nealon in the Kapinus case may email me at

Copy of Facebook Decision in Clapsadle Case Secured

A copy of the Facebook Discovery decision in the case of Clapsadle v. Barkman, No. 2015-1896 (C.P. Franklin Co. Sept. 15, 2016) has been secured and has been added to the Facebook Discovery Scorecard on Tort Talk.

The decision can be accessed online HERE.

I send thanks to Attorney Matthew S. Crosby of the Harrisburg, PA law firm of Handler, Henning & Rosenberg, LLP for providing me with a copy of this decision.

The Facebook Discovery Scorecard can always be accessed by going to and scrolling down the right hand column and clicking on the date noted under "Facebook Discovery Scorecard."  There are Links to all of the Facebook decisions noted on that Scorecard. 

Here is a shortcut LINK to the Facebook Discovery Scorecard for your easy reference.

Thursday, July 20, 2017

Link To Interesting Article on the Evolution of Self-Driven Vehicles To Date

The advent of self-driven vehicles appears to be upon as as the technology continues to be developed.

Here is a LINK to an interesting article written by noted liability expert Steven M. Schorr and Joseph R. Fowler entitled "Self-Driven:  The Path Towards Autonomous Vehicles."  In this article, Mr. Schorr and Mr. Fowler provide a history of the evolution of motor vehicles towards the eventual introduction of self-driving vehicles to the public.

According to the article, the technology still needs to be developed substantially further before truly autonomous vehicle will be set loose on the roadways.

But there may come some day when auto law practitioners and the courts in Pennsylvania will have to grapple with new legal issues that may arise out of motor vehicle accidents involving autonomous vehicles.  These issues may include the liability of the person "operating" such vehicle as well as potentially products liability issues with respect to the technology involved.

Wednesday, July 19, 2017

Pennsylvania Superior Court Rules that Punitive Damages Claim May Not Be Added After Expiration of Statute of Limitations Where Such Claim Amounts to New Cause of Action

In the case of Wilson v U.S. Security Associates, No. 2017 Pa. Super. 226 (Pa. Super. July 18, 2017 Dubow, J., Ransom, J., Platt, J.)(Op. by Platt, J.), the Superior Court granted a defendants' motion seeking judgment notwithstanding the verdict with regard to the punitive damages award under a rationale that the trial court improperly allowed the Plaintiff to reinstate a punitive damages claim after the expiration of the statute of limitations.

In so ruling, the Pennsylvania Superior Court overturned a $38.5 million punitive damages verdict awarded to the families of two employees who were killed by a disgruntled co-worker in a factory shooting.
According to the Opinion, the plaintiffs initially sought punitive damages, but later the parties entered a stipulation for the withdrawal of the punitive damages claim.  Thereafter, the plaintiffs secured new counsel and, during the course of the trial of the matter and after the statute of limitations had expired, the plaintiffs were permitted by the trial court to reintroduce and pursue the punitive damages claim.
On appeal, the plaintiffs argued that the reintroduction of the punitive damages claims merely amounted to an amendment to the ad damnum clause outlining the damages, rather than the identification of a separate cause of action.
The Superior Court panel disagreed and ruled that the trial court erred in allowing the plaintiffs to reintroduce the claim for punitive damages after the statute of limitations had expired.   The Superior Court treated the withdrawal of the punitive damages claims as being analogous to the voluntary withdrawal of a suit, which action does not serve to toll the statute of limitations. The Court also noted in footnote 27 that allowing the punitive damages claim to proceed mid-trial was also prejudicial to the defendant.

Anyone wishing to review this Opinion online may click this LINK.

Discovery of Private Portions of Plaintiff's Facebook Profile Denied

Another Facebook Discovery decision has been uncovered.  In the case of Clapsadle v. Barkman, No. 2015-1896 (C.P. Franklin Co. Sept. 15, 2016), the court denied a defendant's motion to compel plaintiff to answer interrogatories regarding the content of the plaintiff's private portions of his Facebook profile after finding that the information contained on the public pages did not support an argument that relevant information would be revealed from a review of the private pages.

The court did order a hearing to address issues of spoliation after finding that the plaintiff violated a prior court order that specifically directed the plaintiff not to delete or erase any information on the profile.

I do not have a copy of this decision.  If anyone has access to this decision and is willing to email a copy to me I will upload it online and advise as to its availability in a future Tort Talk post.

Source: Course Material from PAAJ's 2017 Annual Auto Law Update CLE.

Tuesday, July 11, 2017

Summary Judgment Granted in Monroe County Supermarket Slip and Fall Case

In the case of Baboolal v. Bracey's Mt. Pocono, Inc, No. 8464 CIVIL 2015 (C.P. Monroe Co. Feb. 27, 2017 Williamson, J.), the Monroe County Court of Common Pleas granted summary judgment in favor of a Defendant supermarket in a case where a  Plaintiff allegedly slipped and fell due to a grape and/or moisture on the floor.  

The Plaintiff alleged that he was caused to fall when her shopping cart slid due to moisture on the floor, causing her to fall to her knees and allegedly sustain injuries.  

The court found that there was no evidence of an actual constructive notice on the part of the Defendant store of these conditions.  

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

 Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (May 23, 2017). 

Summary Judgment Denied in Monroe County Premises Liability Case

In the case of Brown v. Stroud Mall, No. 7599 CIVIL 2013 (C.P. Monroe Co. Aug. 23, 2016 Sibum, J.), the Plaintiff alleged injuries as a result of her foot becoming entangled in what appeared to be a wire strung across a hall of a local mall.   The Plaintiff filed a Complaint for negligence.

The defense filed a Motion for Summary Judgment arguing that the Plaintiff had not established a duty owed to the Plaintiff and/or that the Plaintiff had failed to show actual constructive notice on the wire on the part of the Defendants.  

The Defendants argued that the presence of security staff patrolling the area within an hour of the Plaintiff’s encounter with the wire supported their argument that the wire did not exist for such a period of time that it could have been corrected through the exercise of reasonable care.  

The court denied the Motion for Summary Judgment indicating that the question of whether a landowner had constructive notice of a dangerous condition was an issue to be left to the jury to decide where reasonable minds could differ on the issue.  

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

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (May 23, 2017).