I was recently interviewed by Bruce Kaufman for his article on the Bloomberg Law Website entitled "Texting and Driving May Soon Cost You." The article analyzes the rise of punitive damages claims in driving while texting cases around the nation. Mr. Kaufman interviewed me regarding this issue in Pennsylvania.
If you are interested, here is a LINK to his article.
Friday, April 20, 2018
Thursday, April 19, 2018
Appeal of Denial of Motion to Disqualify a Court Appointed Neutral Quashed
In the case of Haviland v. Kline & Specter, No. 1791 EDA 2017 (Pa. Super. March
22, 2018 Murray, J., McLaughlin, J., and Stevens, J.) (Op. by Murray, J.), the
Pennsylvania Superior Court addressed the rules of pertaining to permissible
appeals from the trial court. In this particular case, the question was whether
a trial court’s denial of a motion to disqualify a court appointed neutral
arbitrator was appealable. The court
ruled that it was not and, therefore, he appeal was quashed.
This matter arose out of a dispute between law firms over
fees. In the trial court proceedings,
the court appointed a neutral arbitrator to hear the matter. One of the parties involved filed a motion
to disqualify that arbitrator. After
the trial court denied the motion to disqualify the neutral arbitrator, the
case was appealed.
A main portion of this court’s Opinion dealt with whether
the trial court’s denial of the motion to disqualify the arbitrator was
appealable as a non-final order. In
this regard, the Superior Court stated that it was unable to locate any case
directly on point. However, the court concluded that the case law addressing
the interlocutory nature of pre-trial recusals of trial court judges to be
persuasive and instructive.
The court held that “an order denying a motion seeking the
recusal or disqualification of an arbitrator, as with an order denying the
recusal of a trial judge, is not a final order or an interlocutory order
appealable as of right or as a collateral order.
Given that the Superior Court found that the trial court’s
Order denying a party’s motion to disqualify an arbitrator is not a final order
or an interlocutory order appealable as of right or as a collateral order, the
Superior Court quashed this appeal as it, therefore, did not have jurisdiction
to the merits of the issue presented.
Anyone wishing to read this case may click this LINK.
Monday, April 16, 2018
Judge Nealon Addresses "Regularly Conducting Business Element" of Improper Venue Challenge
The intersection of quality and quantity in the context of an improper venue challenge was recently addressed by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Espinosa v. J & J Limousine Service, No. 18-CV-0302 (C.P. Lacka. Co. Feb. 26, 2018 Nealon, J.).
In addressing the quantity and quality of contacts by a Defendant in a particular county, the court in Espinosa found that venue in this personal injury matter was improper in Lackawanna County where the Defendant conducted less than 1% of its commercial activities within the county. As such, Judge Nealon transferred the case to Lehigh County where the accident occurred, which was also the county in which the Plaintiffs resided and where the Defendant regularly conducted business.
According to the Opinion, the Defendant operated a passenger van which transported the Plaintiff to a park in Lehigh County. While the parties were in Lehigh County, the door of the passenger van allegedly swung open, which caused one of the Plaintiffs to fall forward and allegedly sustain personal injuries.
The record before the court confirmed that the Defendant's principal place of business was in Lehigh County.
The Defendants filed a Preliminary Objection asserting improper venue in Lackawanna County and asserted that the only connection with that county was that the Plaintiffs’ attorney’s law office was located in that county.
In response, the Plaintiff pointed to the Defendant’s website which advertised that its services included multiple locations within Lackawanna County. However, the court noted that other information presented in the record before the court revealed that the work by the Defendant within Lackawanna County was substantially less than 1% of the Defendant’s annual transportation business.
The court accepted the Defendant’s arguments that its contacts within Lackawanna County did not occur with sufficient frequencies to satisfy the quantity component of the venue standard. The court’s review of case law did not reveal any case where a court had found that the venue standard was met where Defendant’s contacts within a county were less than 1% of the total revenues.
Accordingly, Judge Nealon ruled that the Defendant’s business activities in Lackawanna County were not sufficiently continuous or habitual to quality as to “regularly conducting business” in Lackawanna County.
The Defendant’s Preliminary Objections were sustained and the case was transferred to Lehigh County.
Anyone wishing to review this Opinion by Judge Nealon may click this LINK.
To review other Tort Talk posts on cases applying the Quantity vs. Quality Test for proper venue, click this LINK.
Friday, April 13, 2018
ARTICLE: Authentication in the Digital Age: In Recent Cases, Old and New Collide
This article of mine appeared in the April 10, 2018 edition of the Pennsylvania Law Weekly and is republished here with permission.
Authentication in the Digital Age:
In Recent Cases, Old and New Collide
By Daniel E. Cummins | April 05, 2018

As they say, “The more things change, the more they remain the same.” And so it is with the changing forms of evidence in the digital age including various types of electronic messages and a wide variety of social media platforms designed for the exchange of information, photos and videos. But what has not changed are the long-standing and staid Rules of Evidence applicable to all forms of evidence.
The old and the new are colliding in recent cases in which the state and federal courts of Pennsylvania have addressed the novel issues of how different forms of digital evidence are to be authenticated before such evidence may be ruled admissible in a court of law.
While the seminal decisions laying down the requirement and parameters of the authentication of digital evidence have all come out of the criminal court context, it can be anticipated that identical rulings will be handed down in the civil litigation context as well in the future.
Rule of Evidence 901
Under Pa.R.E. 901(a), which is consistent with its counterpart Federal Rule of Evidence, it is provided that “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”The rule goes on to give specific examples of how different types of evidence may potentially be authenticated. Currently, there is no specific example provided with respect to the new situation of social media or digital evidence. Perhaps there is a need for an amendment of Rule 901 in this regard in light of the recent case law on the issue.
According to the commentary under Pa.R.E. 901, “the authentication or identification requirement may be expressed as follows: When a party offers evidence contending either expressly or impliedly that the evidence is connected with a person, place, thing, or event, the party must provide evidence sufficient to support a finding of the contended connection,” see Pa.R.E. 901, Commentary, citing Commonwealth v. Hudson, 414 A.2d 1381 (1980); Commonwealth v. Pollock, 606 A.2d 500 (1992).
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Recent decisions handed down in Pennsylvania have begun to confirm that the mandates of Rule 901 apply to all forms of electronic and social media messages.
A Case of First Impression
In a 2005 decision issued during the dawn of the digital age, the Pennsylvania Superior Court addressed, for the first time, the issue of authentication of evidence of instant messages in a criminal court matter in the case of In the Interest of F.P., a minor, 878 A.2d 91 (Pa.Super. 2005).In the case of F.P., the Superior Court rejected the argument that instant messages, which were the precursor to emails and text messages, are inherently unreliable because of their relative anonymity and the occasional difficulty connecting a message with its author given that any person could be using the computer from which the message originated (assuming that person had the appropriate password).
The court in F.P. noted that these issues were no different from letters or other paper documentary evidence that could be forged or denied by the alleged writer. While the court in F.P. acknowledged that, “unless the purported author is actually witnessed sending the email, there is always the possibility it is not from whom it claims, … the same uncertainties exist with traditional written documents.” For example, a “signature can be forged; a letter can be typed on another’s typewriter; distinct letterhead stationary can be copied or stolen.”
The court reiterated its belief that that email messages and similar forms of electronic communication could be properly authenticated within the existing framework of Pa.R.E. 901 and Pennsylvania case law and without the need for the creation of new rules or law for this new form of evidence.
As such, the court in the F.P. case held that, like documentary evidence, electronic messages could be properly authenticated within the framework set forth under Pa.R.E. 901.
The F.P. case laid out the framework for authenticating digital evidence by first reaffirming the basic principle that the admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion.
It was additionally noted that, like paper evidence, evidence of paperless electronic messages could also be authenticated by either direct proof or by circumstantial evidence. The court noted that, under Pa.R.E. 901, such direct evidence in support of authentication could be in the form of testimony of a witness with personal knowledge that the evidence is what the proponent claims it to be.
The court also held that proof of any circumstances which will support a finding that the writing is genuine can also suffice in court to authenticate the writing.
In the F.P. case, the court pointed to circumstantial evidence relating the content of the messages to prior statements and actions by the alleged sender. The court also was influenced to allow the evidence of the text message as it appeared that the alleged sender sent the message given that he used his own first name in the message sent.
Accordingly, the court in F.P. found that the evidence of the instant messages had been properly authenticated and were, therefore, properly admitted into evidence.
Another Case of First Impression
Six years later, another case of first impression, this time pertaining to text messages, was handed down in the matter of Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705 (Pa. 2014). The split affirmance by the Supreme Court leaves the Superior Court decision in Koch as good law.Koch involved an appeal by a criminal defendant from a Cumberland County conviction for drug offenses based, in part, on evidence from text messages allegedly sent by the defendant. On appeal, the defendant challenged the admissibility of the evidence of text messages on the basis of lack of authentication.
The Pennsylvania Superior Court in Koch ruled that text messages were not admissible unless they were properly authenticated, i.e., unless there was evidence presented that the messages did indeed come from the alleged sender.
The defendant in the criminal case asserted that there was no evidence to establish that she had sent any of the drug transaction-related text messages. She also asserted that it had not been established that the drug transaction-related texts received on the phone were specifically directed to her. Moreover, the defendant offered evidence that her cellphone was also allegedly being used by someone else at the time the messages were sent.
On appeal, the Superior Court found that the text messages were not properly authenticated and, therefore, should not have been admitted into evidence during the course of the trial. The criminal conviction was overturned.
As support for its ruling, the Superior Court in Koch pointed to the above-noted Pennsylvania Superior Court decision in In the Interest of F.P., a minor, 878 A.2d 91 (Pa.Super. 2005) pertaining to instant messages.
The Superior Court in Koch agreed with the analysis of the F.P. case that electronic messages could be authenticated in the same manner that paper evidence was authenticated. The court in Koch noted that “electronic writings typically show their source, so they can be authenticated by contents in the same way a communication by postal mail can be authenticated.” However, the Koch court cautioned that, while text messages and emails can almost always be electronically traced back to their source cellphone or computer, the sender of such messages is not always thereby automatically identified. In other words, particular cellphones and computers can arguably be utilized by anyone at anytime to send the messages.
The Superior Court in Koch reviewed similar decisions from around the United States and noted that, “in the majority of courts to have considered the question, the mere fact that an email bears a particular e-mail address is inadequate to authenticate the identity of the author; typically, courts demand additional evidence.”
As such, the Superior Court held that there must also be “circumstantial evidence, which tends to corroborate the identity of the sender,” before an electronic message may be authenticated and admitted.
Ultimately, the court found that the trial court abused its discretion in admitting the text messages where the cellphone’s physical proximity to the defendant at the time of her arrest had no probative value with regard to whether she authored the messages.
The Koch requirements for authentication of a criminal defendant’s text messages were followed in the more recent case of Commonwealth v. Mosley, 114 A.3d 1072, 1082 (Pa. Super, 2015). In Mosely, the court found that there was no evidence, direct or circumstantial, clearly proving that the defendant was the author of the drug-related text messages, or any corroborating witness testimony regarding authenticity of the messages. Consequently, the court in Mosely held that the trial court erred in determining that the drug-related texts were properly authenticated.
In Commonwealth v. Murray, 174 A.3d 1147 (Pa.Super., 2017), the Superior Court affirmed a trial court finding that text messages had been properly authenticated. The Murray court noted that ‘the trial court determined that the text messages in question were properly authenticated based on the contextual clues in the messages and the fact that [the officer] retrieved the phone from Murray’s person.”
A similar ruling pertaining to the authenticity of a text message was also handed down in the case of Commonwealth v. Woods, No. 1324 MDA 2013 (Pa. Super.,2014)(unpublished, nonprecedential).
A Third Case of First Impression
In a very recent March 15 decision in Commonwealth v. Mangel, No. 2018 Pa. Super. 57, the Pennsylvania Superior Court ruled, for the first time in state court, that social media posts are inadmissible in criminal cases unless prosecutors can present evidence of who actually authored the posts. That is, the evidence was inadmissible unless it was properly authenticated.The court in Mangel supported its requirement of authentication by noting that, in this day and age, social media accounts can be easily hacked or even entirely faked.
The Mangel court affirmed an Erie County trial court decision denying a prosecutor’s motion in limine seeking to introduce into evidence Facebook posts and messages allegedly authored by the defendant.
Judge John L. Musmanno wrote in Mangel that “authenticating social media evidence is to be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing of its relevance and authenticity.”
Consistent with the rulings in the Koch and F.P. decisions, both the trial court and the appellate court in Mangel found that merely presenting evidence that the posts and messages came from a particular social media account bearing the defendant’s name was not enough to rule the evidence admissible. Citing to the F.P. and Koch decisions, the Mangel court noted that these types of Facebook posts and messages must instead be authenticated under Pa.R.E. 901 in a manner similar to the authentication of text messages and instant messages.
The Superior Court also relied upon a prior U.S. Court of Appeals for the Third Circuit decision requiring authentication of Facebook posts in the case of United States v. Browne, 834 F.3d 403 (3d Cir. 2016).
The Third Circuit rejected the government’s argument that pursuant to F.R.E. 902(11) the contents of the “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 Browne court nonetheless affirmed the appellant’s conviction after finding that the trial record reflected more than sufficient extrinsic evidence to link the defendant to the chats and thereby satisfied the government’s authentication burden under a F.R.E. 901 analysis.
Anticipated impact in civil matters
While all of the above cases pertaining to the authentication of various types of electronic messages arose in the criminal law context, it is safe to predict that identical rulings will be handed down when these issues are raised in a state court or federal court civil litigation matter. The Rules of Evidence pertaining to authentication of evidence are the same regardless of in which type court and which type of litigation the issue arises.It can be anticipated that this issue of authentication will continue to reoccur not only with respect to authenticating emails and text messages but also tweets, along with commentary, photos, and videos on social media sites such as Facebook, Youtube, Linkedin, Snapchat, Instagram and any other social media platforms that may come into existence.
When planning to rely upon these forms of digital evidence, litigators, prosecutors, and criminal defense attorneys should be prepared to produce the related direct or circumstantial evidence necessary to authenticate the electronic evidence at issue, or risk not being able to utilize the evidence at all.
Daniel E. Cummins is a partner with the Scranton law firm of Foley, Comerford & Cummins. He focuses his practice on the defense of auto accident, premises liability and products liability matters. His Tort Talk Blog can be viewed at www.TortTalk.com.
Thursday, April 12, 2018
Personal Jurisdiction on Out-of-State Entity Not Established by Presence of Subsidiary Company in Pennsylvania
Federal court personal jurisdiction issues were reviewed in
the case of Esposito v. Las Vegas Sands
Corp., No. 17 - CV - 2936 (E.D. Pa. Feb. 21, 2018 Surrick, J.).
In this Esposito decision, the court dismissed a non-resident Plaintiff’s slip and fall claims against a non-resident Defendant for lack of personal jurisdiction. The Plaintiff allegedly fell at the Venetian Hotel in Las Vegas, Nevada.
The court found that the fact that the non-resident Defendant also operated a separately incorporated Pennsylvania subsidiary, which was the Sands Bethlehem Casino in Bethlehem, Pennsylvania, did not expose that Defendant to personal jurisdiction in Pennsylvania for out-of-state claims not involving any activity of that subsidiary.
The court noted that, under Pennsylvania law, a parent corporation does not carry on “a continuous and systematic” business through separately incorporated subsidiaries.
The court also found that the out-of-state Defendant was not subject to general jurisdiction because Pennsylvania was neither the state of that Defendant’s incorporation nor the location of that Defendant’s principal place of business.
The court ultimately ruled that this matter would be transferred to the place where the accident happened.
Anyone wishing to review a copy of this decision may click this LINK.
In this Esposito decision, the court dismissed a non-resident Plaintiff’s slip and fall claims against a non-resident Defendant for lack of personal jurisdiction. The Plaintiff allegedly fell at the Venetian Hotel in Las Vegas, Nevada.
The court found that the fact that the non-resident Defendant also operated a separately incorporated Pennsylvania subsidiary, which was the Sands Bethlehem Casino in Bethlehem, Pennsylvania, did not expose that Defendant to personal jurisdiction in Pennsylvania for out-of-state claims not involving any activity of that subsidiary.
The court noted that, under Pennsylvania law, a parent corporation does not carry on “a continuous and systematic” business through separately incorporated subsidiaries.
The court also found that the out-of-state Defendant was not subject to general jurisdiction because Pennsylvania was neither the state of that Defendant’s incorporation nor the location of that Defendant’s principal place of business.
The court ultimately ruled that this matter would be transferred to the place where the accident happened.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to Attorney James M. Beck of the Reed Smith
law firm in Philadelphia for bringing this case to my attention.
Tuesday, April 10, 2018
$21 Million Dollar Bad Faith Award Erased by Pennsylvania Superior Court
In its decision in the case of Berg v. Nationwide Mut. Ins. Co., Inc.,
No. 713 MDA 2015 (Pa. Super. April 9, 2018 Ott, Stabile, J.J., and Stevens,
P.J.E.) (Op. by Stabile, J.) (dissenting Op. by Stevens, P.J.E.), the Pennsylvania
Superior Court vacated a $21 million dollar judgment entered by a Berks County trial
court judge and remanded the case for the entry of judgment in favor of the
carrier in a property damage bad faith cause of action.
As noted in the Opinion, this case has been up and down the
appellate ladder over the past two decades.
This matter arose out of a property damage claim relative to the
insured’s Jeep Grand Cherokee.
According to the Opinion, this bad faith suit initially
began with the filing of a Writ of Summons back in January of 1998, over twenty
(20) years ago.
The insured's Jeep Grand Cherokee was allegedly damaged in a
motor vehicle accident as a result of which there were no personal
injuries.
The Plaintiffs’ causes of action against the carrier
included breach of contract, negligence, fraud, conspiracy, violations of the
Unfair Trade Practices and Consumer Protection Law (UTPCPL), and insurance bad
faith.
Back in 2004, the case proceeded to a jury trial and the
jury entered a verdict in favor of the Defendants on all causes of action
except the catch all provision of the UTPCPL.
The jury awarded the Plaintiff $1,925.00 in damages against one
Defendant and $295.00 against the carrier Defendant for the UTPCPL
violation.
Thereafter, a second phase of the trial began in the form of
a bench trial on the UTPCPL treble damages and bad faith. That bench trial was in 2007 and resulted in
a directed verdict in favor of the carrier.
That result was appealed and the case went to the Supreme Court before
being remanded back to the trial court for another bad faith trial.
The second bad faith bench trial took place in approximately
June of 2014 before Judge Jeffrey K. Sprecher.
Judge Sprecher issued a verdict in favor of the Plaintiffs on their bad
faith claim and ordered the carrier to pay $18 million in punitive damages and
$3 million dollars in attorney’s fees.
This bench trial verdict is the subject of the appeal in the
above cited latest decision in the Berg
case and, as stated, resulted in the Superior Court vacating that $21 million
dollar bench trial verdict and entering judgment in favor of the carrier under
the standard of review applicable to non-jury cases.
In the Pennsylvania Superior Court’s detailed 61 page
Opinion, the appellate court reviewed the current status of bad faith law in
Pennsylvania and affirmed that clear and convincing evidence of bad faith
conduct on the part of the carrier is required to support such a claim.
The Berg court
restated the basic law that “[I]n order to recover in a bad faith action, the
Plaintiff must present clear and convincing evidence (1) that the insurer did
not have a reasonable basis for denying benefits under the policy and (2) that
the insurer knew or recklessness disregarded its lack of a reasonable
basis.” See Berg at p. 10 [citation omitted.].
Here, the appellate court found many of the factual findings
of the trial court were not supported by the record presented.
In Berg, the basic
issue raised by the Plaintiff was that the carrier allegedly acted in bad faith
by repairing the Plaintiff’s Jeep rather than declaring the Jeep a total loss
and compensating Plaintiffs for its value at the time of the loss. The insured also asserted that faulty repairs
were made to the Jeep and that the carrier should have been aware of such
faulty repair work.
The appellate court found that neither the Plaintiff nor the
trial court had cited any legal authority supporting the conclusion that a
carrier’s duty of good faith and fair dealing requires an inspection of repairs
prior to returning a vehicle to an insured.
The court noted that, even if there were such a duty recognized under
Pennsylvania law, the evidence in this case did not rise above a showing of
negligence, and, therefore, the evidence did not support a finding of bad faith
by clear and convincing evidence.
Relative to the trial court’s findings of bad faith, the
appellate court noted that it had the authority to reverse such findings when
the trial court’s “critical factual findings are either unsupported by the
record or do not rise to the level of bad faith.” See
Berg at p. 38 [citations omitted] .
The Superior Court went on, at length, to describe the trial
court’s findings as being devoid of merit at times and in reliance upon facts
and opinions outside of the record at other times.
The appellate court also faulted the trial court to the
extent that the trial court based its findings of bad faith upon alleged
discovery violations by the carrier during the course of the litigation. The
court noted that a trial court’s findings of bad faith based upon discovery
violations amounted to a clear error. See Berg at p. 48.
The appellate court in Berg
noted that, while it is true that a finding of bad faith under §8371 may be
based upon an insurer’s conduct before, during, or after litigation, the courts
of Pennsylvania have refused to recognize that a carrier’s discovery practices
constitute grounds for a bad faith claim under §8371, absent the use of
discovery to conduct an improper investigation. Berg
at p. 48-49 [citations omitted].
The Superior Court in
Berg explained that §8371 is designed
to provide a remedy for alleged bad faith conduct by a carrier in its capacity
as an insurer for breach of its fiduciary duty to an insured by virtue of the
parties’ insurance policy, and not as a legal adversary in a lawsuit filed
against it by an insured. Berg at p. 49. The court went on to note that discovery violations
are to be separately governed under the
exclusive provisions of the Pennsylvania Rules of Civil Procedure. Id.
The appellate court also rejected the trial’s findings of
bad faith on the basis of allegations that the carrier allegedly hoped to
overwhelm Plaintiffs with its superior resources and that the carrier had allegedly
adopted a scorched earth policy towards this litigation. Id.
at 50. The appellate court found that
there was no basis in the record to support this finding by the trial court
judge.
The appellate court also found that the trial had
incorrectly found that the carrier had engaged in bad faith on the basis of
evidence of the extended length of this litigation. In this regard, the Superior Court in Berg stated that “Plaintiffs had the
right to prosecute their case zealously within the bounds of the law, just as
[the carrier] had the right to defend itself if it believed its personnel did
not act in bad faith. We cannot
arbitrarily impose a limit on the time and resources an insurer spends in
defending a bad faith action.” Berg at p. 52.
As stated, in the end, the Superior Court in Berg vacated the judgment of the trial
court primarily because of the appellate court’s finding that the record did
not support many of the trial court’s critical findings of fact. The Superior Court in Berg felt that it had no choice but to vacate the trial court’s
judgment after an exhaustive review of the record before the appellate
court.
In concluding its Opinion, the majority in Berg disagreed with the dissenting
judge’s assertion that the majority was improperly substituting its own
findings for those of the trial court under the applicable standard of
review. The appellate court reiterated
that the “trial court engaged in a limited and highly selective analysis of the
facts and drew the most malignant possible inferences from the facts it chose
to consider” all of which, in the eyes of the Superior Court supported a
vacation of the verdict. Berg at p. 60.
Anyone wishing to review the Majority Opinion in Berg may click this LINK
The Dissenting Opinion can be viewed HERE.
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