Monday, May 10, 2021

Judge Leeson of Eastern District Court Confirms No Direct Claim of Liability Against Trucking Company Recognized in Certain Cases

In the case of Carson v. Tucker, No. 5:20-CV-00399 (E.D. Pa. March 30, 2021 Leeson, J.), Judge Joseph F. Leeson, Jr. of the Eastern District Federal Court granted a Defendant trucking company’s Partial Motion for Summary Judgment.

This case arose out of a motor vehicle accident involving two (2) tractor trailers.

In the Motion before the court, the trucking Defendant’s Motion for Partial Summary Judgment was being considered in a case where the Plaintiff filed negligence claims including both vicarious liability and direct liability claims. 

The trucking Defendants sought summary judgment only on the direct liability claims.

Judge Joseph F. Leeson, Jr. 
E.D. Pa.

Judge Leeson noted that, under Pennsylvania law, in addition to vicarious liability for that actions of its employees, a corporation may also be subject to direct liability for a negligent entrustment, instruction, supervision, monitoring and hiring of its employees. 

However, Judge Leeson noted that, under the standard “nearly universally adopted” by federal district courts applying Pennsylvania law, a Plaintiff’s direct liability claim against the Defendant driver’s trucking company employer could not survive where the employer had admitted an agency relationship with the driver and where the Plaintiff did not have a viable claim for punitive damages. 

The court found that the Plaintiff’s claim of direct liability against the trucking company therefore failed as a matter of law under the circumstances presented in this case.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 15, 2021).

Friday, May 7, 2021

Judge Nealon Addresses Issues of Proper Venue for a Med Mal Case

The Lackawanna County Court of Common Pleas

In the case of Champi v. Geisinger Wyoming Valley Medical Center, No. 19-CV-1780 (C.P. Lacka. Co. April 14, 2021 Nealon, J.), the court addressed issues regarding proper venue in a medical malpractice action.

According to the Opinion, the Plaintiffs filed this medical malpractice action against a Lackawanna County hospital as well as a Luzerne County hospital alleging negligent care at the different hospitals from the different counties.

The court noted that, under Pa. R.C.P. 1006(a)(1) and (c)(2), it is provided that a malpractice case may be brought in a county where the cause of action arose and that an action asserting joint and several liability against multiple Defendants may be filed in any county where venue may be laid against any Defendant. Under this rationale, venue was noted to have been proper in Lackawanna County at the time this suit was commenced.

In this matter, following the completion of discovery and the production of expert reports, the Plaintiffs voluntarily discontinued their malpractice claims against the Lackawanna County hospital three (3) months prior to trial and that hospital was dismissed as a named Defendant.

In response, the Luzerne County hospital filed a Petition seeking to transfer venue to Luzerne County on the basis that venue was no longer proper in Lackawanna County. In the alternative, that Luzerne County hospital filed a Petition to Transfer Venue to Luzerne County under forum non conveniens grounds under Pa. R.C.P. 1006(d)(1).

Judge Nealon noted that the questions of improper venue was determined by the identity of the parties at the time the case is initiated. For that reason, the court noted that a venue challenge is waived unless it is raised by Preliminary Objections. In this case, since venue was proper in Lackawanna County at the time the case was initiated, the court found that venue remain proper despite the voluntary dismissal of the only Lackawanna County Defendant.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon otherwise that, any concern or allegation that the Plaintiff may have initially included an uninvolved healthcare provider as a named Defendant in order to secure proper venue in a particular or desired forum is adequately addressed by the Certificate of Merit requirements which were designed to confirm that the claims filed were of arguable merit.

On the issue of the petition to the court to transfer the case under the forum non conveniens doctrine, after applying the standard of review in that regard, the court noted that there is only a 20 mile distance between the Lackawanna County Courthouse and the Luzerne County Courthouse and that, given the fact that the trial was scheduled to commence in less than three (3) weeks following the filing of the motion, the court found that the Luzerne County hospital had not satisfied its burden of demonstrating that the Plaintiffs’ chosen venue was oppressive or vexatious to that hospital.

As such, the Petitions filed by the Luzerne County hospital were denied.

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

Motion to Reinstate Punitive Damages in a Med Mal Case on the Eve of Trial Denied

In the case of Keyes v. Abington Manor, No. 16-CV-3024 (C.P. Lacka. Co. March 26, 2021 Nealon, J.), the court issued a detailed Order deciding a Plaintiff’s Motion to Amend a Complaint in order to reinstate a claim for punitive damages in this medical professional liability action which was scheduled to commence trial ten (10) days after the motion was filed.

The case involved claims of professional negligence against a skilled nursing facility.

Earlier in the same case, the same court (but different judge) had sustained Preliminary Objections to the Plaintiff’s claims for punitive damages. However, in that Court Order it was indicated that, if after the completion of discovery there was evidence that warranted punitive damages, the Plaintiff could file a motion to amend the Complaint to include such claims.

After reviewing the law of Pennsylvania as well as the MCARE Act regarding punitive damages, the court noted that the Defendants would have to be chargeable with willful, wanton, or reckless conduct in order for punitive damages to apply. After reviewing the record before the court, the court did not find such evidence to support these types of claims.

As the court found that the record did not contain sufficient evidence to demonstrate a triable issue in order to submit the punitive damages claim to a jury, the Plaintiff’s Motion seeking to amend the Complaint to reinstate claims for punitive damages was denied.

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

Thursday, May 6, 2021

Please Consider Registering for Lackawanna Pro Bono Golf Tournament


Fitness Club's Exculpatory Clause Upheld to Defeat Plaintiff's Personal Injury Claim

In the case of Cifarelli v. RKKB Capital Partners Corp., No. 9626-CV-2019 (C.P. Monroe Co. March 1, 2021 Zulick, J.), the court granted a Defendant fitness facility’s Motion for Summary Judgment in a matter in which a Plaintiff fell while using a treadmill.

According to the Opinion, the Plaintiff was using a treadmill when the treadmill mat slipped off its track, causing the Plaintiff to fall and suffer injuries.   

The Plaintiff filed suit against the gym. In its Answer and New Matter, the gym raised a defense of a release. 

According to the Opinion, the Plaintiff had signed a membership agreement in which she agreed to release the fitness center from liability for injuries she suffered on the premises due to negligence.   

Judge Arthur K. Zulick 
Monroe County

Judge Zulick noted that, in a number of cases involving fitness club agreements, the Pennsylvania appellate courts have consistently held that exculpatory provisions violate public policy only when they involved a matter of interest to the public or the state.   The court cited examples such as cases involving employer/employee relationships, public utilities, common carriers, and hospital. 

The court noted that the Plaintiff had signed a membership agreement for a gym or health club.  The court noted that the Plaintiff was free to refuse to sign the release and to look elsewhere for fitness activities.   

By signing the agreement, the Plaintiff agreed that she understood that she was giving up important legal rights and that the contract would be a full release of liability for injury.   

The court also rejected the Plaintiff’s attempt to get around the release by arguing reckless conduct.   While the court agreed that and attempt in a release to avoid liability for reckless conduct is not enforcement as a violation of public policy in Pennsylvania, the case at hand did not contain facts supporting a claim of reckless conduct.  

As such, the Defendant’s Motion for Summary Judgment was granted.   

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 23, 2021). 

I also send thanks to Attorney Daniel D. Stofko of the Scranton, PA office of Margolis Edelstein for bringing this case to my attention.



(570) 319-5899

Court Addresses Applicability of Mediation Privilege (42 Pa.C.S.A. Section 5949)

Did you know that there was a provision in the Judicial Code codifying the rule that information exchanged at mediations should be treated as confidential by all parties involved?

In the case of Lee & Associates v. Conewago Industrial Park Associates, No. 2018-00757 Civil (C.P. Cumb. Co. Feb. 8, 2021 Peck, J.), the court addressed the concept of a mediation privilege in the context of a Motion to Compel Discovery filed by a Plaintiff in a civil action in which a commercial realtor was suing a landowner for commissions allegedly earned in connection with the sale of two (2) lots owned by the Defendant.   

In this case, the Plaintiff’s attorney sought the discovery of documents signed by persons where not parties to a mediation.   

Under the mediation privilege, all communications and documents shared during a mediation are considered to be privileged from disclosure outside of the mediation proceedings.  See 42 Pa. C.S.A. Section 5949.

The court ruled that the mediation privilege did not apply to the case at hand. As such, the Defendant was compelled to provide discovery with respect to the commissions at issue.   

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

I send thanks to Attorney Thomas E. Brenner of the Harrisburg, Pennsylvania law firm of Caldwell & Kearns, P.C. for bringing this case to my attention.  

Wednesday, May 5, 2021

Dead Man's Rule Reviewed By Pennsylvania Superior Court

In its latest pronouncement on the Dead Man’s Act, 42 Pa. C.S.A.  §5930, the Pennsylvania Superior Court, in the case of In re estate of Cerullo, 2020 Pa Super 2007 (Pa. Super. Feb. 25, 2021 Stabile, J., Nichols, J., Colins, J.) ( Op. by Stabile, J.), found that the Act precluded testimony by a spouse and several witnesses in an evidentiary hearing on an objection to a first and final account of an estate.  The court went on to rule that, without such testimony, there is insufficient evidence to support a claim of a gift made by the deceiving.  

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

Source:  “Court summaries,” by Timothy L. Clawges of the  Pennsylvania Bar News (April 5, 2021).