Wednesday, November 20, 2019

Pennsylvania Superior Court Rules that Gallagher v. GEICO Household Exclusion Decision Applies Retroactively


The Superior Court’s recent decision in the case of Kline v. Travelers, No. 104 MDA 2019 (Pa. Super. 2019 McLaughlin, J., Ford Elliott, P.J.E., Gantman, P.J.E.)(Op. By Gantman, P.J.E.), involved both the Sackett stacking issue as well as the issue of the retroactive effect of the Pennsylvania’s eradication of the household exclusion in the Gallagher v. GEICO decision.

The trial court had ruled in favor of the insured on the Sackett issue but against the insured on the household exclusion issue.. Travelers appealed the Sackett issue, and the insured appealed the household exclusion issue.

In this Kline case, the Superior Court found in favor of the insured on both issues, vacated the lower court's decision and remanded the case for further proceedings.

The case involved issues surrounding whether the Plaintiff-insured was entitled to stack his UIM coverage on two vehicles that had been added to his policy prior to the accident where the carrier did not secure new waiver of stacking forms from him.  Another issue was whether the Plaintiff-insured was able to further stack coverage under a policy separately issued to his mother.  As such, there were inter-policy and intra-policy stacking questions at issue in this case.

With regards to the Plaintiff-insured's own policy, the Court in Kline ruled that prior precedent under the Bumbarger supported its decision that the Plaintiff should be permitted to stack the coverages under his own policy.

Relative to the Household Exclusion and the retroactive effect of the Gallagher decision, the Court in Kline ruled that, as a general rule, appellate courts are required to apply the law as it exists as of the time of appellate review before the court.  After applying the law of Gallagher, the court in Kline ruled that the Gallagher case rendered the Household Exclusion invalid such that the Plaintiff-insured could pursue stacked coverage that included the coverage under his mother's policy.

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

Sending thanks to Attorney Scott B. Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this case to my attention.

Zero Verdict for Pain and Suffering Upheld Even Though Medical Expenses Awarded


In the case of Rabuh v. Hoobrajh, No. 3:17-CV-15 (W.D. Pa. Sept. 19, 2019 Gibson, J.), the court affirmed a verdict in favor of the Plaintiff in which a jury did not enter an award to the Plaintiff for pain and suffering damages even though it awarded medical expenses.

The court in Rabuh confirmed that a jury need not award pain and suffering damages every time it awards medical expenses. Rather, a jury, under Pennsylvania law, is free to reject the Plaintiff’s testimony on pain and suffering as a credibility determination.

The record before the court confirms that there were both credibility problems for the Plaintiff and also that the Plaintiff had a pre-existing condition that was put into evidence.

This decision is also notable in that the court denied an untimely Motion for Delay Damages after applying the ten (10) day deadline for such motions under Pa. R.C.P. 238.

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

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

Tuesday, November 19, 2019

Default Judgment Opened Where Petition to Open Filed Within 10 Days


In the case of Guptill v. Fortune Foreclosure, LLC, No. 10101 of 2018, C.A. (C.P. Lawrence Co. Sept. 3, 2019 Motto, J.), the court granted a Defendant’s Petition to Open a Default Judgment in a real estate transaction dispute matter.

In opening the default judgment, the court emphasized that the Defendants filed their Petition to Open within the ten (10) day period set forth in Pa. R.C.P. 237.3(b).  The Court noted that, under that Rule and the Explanatory Comment related thereto, the law presumes that a petition to open a default judgment filed within the ten (10) day period is deemed to be both timely and with a reasonable explanation or legitimate excuse for the inactivity or delay involved.

The court also found that the Defendant had presented meritorious defenses in their proposed Answer and New Matter which, if proven at trial, would justify relief for the defense from the claims made.

Accordingly, the Petition to Open the Default Judgment was granted.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 1, 2019).

Petition to Open a Default Judgment Denied


In the case of Sea-Z, LLC v. Filipone, No. 2017-08304 (C.P. Montg. Co. Aug. 22, 2019 Saltz, J.), the court denied a Defendant’s Petition to Open a Default Judgment in a case involving litigation over the terms of a lease.

According to the Opinion, the Plaintiff obtained a default judgment against the Defendants for failing to respond to the Complaint. The Defendants later filed a Petition to Open the Default Judgment after they found out about the litigation through a Writ of Execution. 

In support of their Petition to Open the Judgment, the Defendants submitted a proposed Answer. 

The court denied the Petition to Open the Default Judgment after the Defendants failed to offer any explanation as to why they failed to file an Answer to the Complaint in a timely fashion in the first place. 

The court also noted that the Petition failed in that the Defendants had failed to establish a meritorious defense to the Complaint through their proposed Answer to the Complaint.

The court noted that, while the Answer denied certain allegations pertaining to the Lease at issue, nothing in the proposed Answer denied the allegations surrounding the alleged failure of the Defendant to make payments and/or with respect to other alleged breaches of the Lease.

In this regard, the court found that the Defendants listing of a number of affirmative defenses was not sufficient because the Defendants did not offer any factual allegations in support of those defenses. 

In the end, the court denied the Petition to Open the Default Judgment. 

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


Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Sept. 24, 2019).

Monday, November 18, 2019

Summary Judgment Granted in Movie Theater Slip and Fall Matter


In the case of Elliot v. Cinemark USA, Inc., 5550-CV-2017 (C.P. Monroe Co. Oct. 4, 2019 Williamson, J.), the court entered summary judgment in favor of a movie theater in a slip and fall matter after finding that the Plaintiff did not establish that the Defendant had actual or constructive notice of the existence of a dangerous condition.

According to the Opinion, the Plaintiff went to the Defendant’s theater in the early afternoon hours to see a movie. While walking near a self-serve condiment station in the lobby, the Plaintiff slipped and fell. The Plaintiff alleged that she slipped and fell on a spill of popcorn butter.

 According to the evidence in the case, the Defendant admitted that the self-serve condiment area was known to become messy quickly such that it was the theater’s policy to clean the area every thirty (30) minutes. The Plaintiff alleged that this policy was in adequate.

The Plaintiff had testified that the floor was wet and greasy when she fell. Another witness testified to the existence of a couple of drops of some substance, about the size of a quarter, approximately three (3) feet from the counter.

The Defendant’s employees testified that they performed the required half-hour checks at the condiment station. The Defendant also provided documentation to show that the various cleaning tasks had been completed that afternoon.

Based upon the record before the court, the judge ruled that the Plaintiff did not establish that the Defendant had any actual or constructive notice of any dangerous condition. As such, summary judgment was entered in favor of the theater.

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

Source: “Digest of Recent Opinions.” The Pennsylvania Law Weekly (Oct. 22, 2019).

I send thanks to Attorney Stephanie Hersperger and Attorney Megan Zei, of the Harrisburg office of the law firm of Pion, Nerone, Girman, Winslow & Smith, P.C. for bringing this case to my attention.

Preliminary Injunction Seeking to Preclude Doctor From Working Under Covenant Not To Compete Denied


In the case of Geisinger Clinic v. Michael J. Rogan, M.D., No. 2019-CV-433 (C.P. Lacka. Co. Nov. 7, 2019 Mazzoni, S.J.), the court denied the Plaintiff’s Petition for a Preliminary Injunction seeking to enjoin the Defendant doctor from practicing medicine within a 25 mile radius based upon a restrictive covenant contained in a practice agreement between the two parties.

The court reviewed the law of restrictive covenants in this and ruled that, while there was no ambiguity in the language of the contract, the court was also required to determine whether the enforcement of the restrictive covenant would compromise the ability of the public to obtain timely and adequate medical care.

The court ruled that enforcing the restrictive covenant would have prevented the public from timely access to healthcare with the Defendant doctor. The court also emphasized that the Defendant doctor was the only physician in the area who was board certified in child abuse pediatric, which experience was utilized by the Defendant as a Medical Director for the Children’s Advocacy Center of Northeastern Pennsylvania. The court also noted that the Defendant doctor also provided medical services to special needs children at St. Joseph’s Center.

The court noted that precluding the Defendant doctor from serving either of those organizations in and of itself would be tantamount to depriving the communities of Northeastern Pennsylvania of a desperately needed service.

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


I send thanks to the prevailing attorneys, Sal Cognetti, Jr., and attorney Sarah Lloyd of the Scranton law firm of Cognetti & Cimini for bringing this decision to my attention.

Friday, November 15, 2019

Latest Appellate Decision on Defamation-Type Claims


In the case of Meyers v. Certified Guar. Co. LLC, 2019 Pa. Super. 316 (Pa. Super. Oct. 18, 2019 Murray, J., Strassburger, J., and Pelligrini, J.) (Op. by Pellegrini, J.), the Pennsylvania Superior Court ruled that a trial court erred in dismissing a Plaintiff’s claim for defamation and related torts.

According to the Opinion, the Plaintiffs were in the profession of restoring comic books and the Defendant company graded and certified comic books for valuation purposes.

This decision is notable as providing the Pennsylvania Superior Court’s latest review on Pennsylvania law pertaining to claims such as defamation, false light, tortious interference with a contract, and civil conspiracy claims.

The decision is also notable in that Pennsylvania Superior Court held that Pennsylvania did not recognize the assumption of risk doctrine as a defense to a false light claim.

In the end, the Superior Court ruled that the trial court erred in granting summary judgment on the defamation claims presented as there was evidence of communications by the Defendant that were disclosed to third parties.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 5, 2019).