Thursday, December 3, 2020





Present a One Hour ZOOM CLE

Friday, December 4, 2020 at Noon


A Holiday Themed Civil Litigation Update

(1 Substantive CLE Credit)

Presented By

Daniel E. Cummins, Esquire
Cummins Law
Clarks Summit, PA


Tuition: $15.00

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Pennsylvania Supreme Court Addresses Standards for Survival and Wrongful Death Claims

In the case of McMichael v. McMichael, No. 50 and 51 WAP 2019 (Pa. Nov. 18, 2020 Todd. J.), the Pennsylvania Supreme Court addressed the issue of whether a trial court abused its discretion in denying a Motion for a New Trial following a jury award of $0 in damages on one of the elements of damages in a wrongful death action. 

According to the Opinion, the Plaintiffs entered in a lease with a Defendant under which the Defendant was to install a natural gas pipeline on the Plaintiff’s property. The lease required that Defendant to hire a company owned by the Plaintiff to perform tree clearing on the property in preparation for the installation of the pipeline.

That landscaping company hired the Plaintiff’s nephew and others to perform the work. While the nephew/decedent was supervising the tree clearing process, he was struck by a tree and fatally injured.

A lawsuit was filed and the case proceeded to trial. The jury ultimately awarded the decedent’s estate $225,000.00 in survival damages, which was reduced to $135,000.00 to reflect the jury’s finding that the decedent was 40% negligent. The court awarded $0 on the wrongful death claim.

Upon review, the Pennsylvania Superior Court concluded that the trial court had erred in denying a new trial with respect to the non-economic damages award. The case was remanded for a new trial limited to the issue of non-economic damages to be potentially awarded to the Plaintiff.

In its decision, the Pennsylvania Supreme Court provides a nice distinction between survival damages and wrongful death damages.

With regards to the jury’s verdict of $0 in damages for the wrongful death claim, the court noted that it was undisputed that the Plaintiff did not present any evidence of medical, funeral, or estate administrative expenses. The court noted that the Plaintiff’s potential recovery in this regard was therefore limited to the loss of the decedent’s services. The court noted that the Plaintiff had produced evidence in this regard in terms of how the decedent performed home repairs, mowed the lawn, did most of the cooking, and drove his wife to work when the weather was bad. 

It was noted, however, that neither the wife nor any economic expert retained, testified as to an estimate as to the value of these contributions or services, or the cost of hiring somebody else to perform these tasks. 

The Pennsylvania Supreme Court noted that, in the absence of any evidence as to the economic value of these contributions, the jury would have been forced to engage in speculation regarding the value of these services. 

As such, the Pennsylvania Supreme Court agreed with the trial court’s denial of any new trial for any economic damages. 

However, as noted, the request for a new trial with respect to the non-economic damages relative to the wife’s loss of her husband of thirty (30) years was granted.

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

Justice Mundy's Concurring and Dissenting Opinion can be viewed HERE.

Justice Dougherty's Dissenting Opinion can be viewed HERE

Wednesday, December 2, 2020

Corrected Link to Slip and Fall Case

Yesterday's Tort Talk referenced the case of Urrutia v. Wal-Mart Stores, Inc., No. 3:18-CV-01254 (M.D. Pa. Oct. 27, 2020 Mariani, J.), the court denied the store’s Motion for Summary Judgment in a slip and fall matter. 

Here is the corrected LINK to the case.  I apologize for any confusion.

Summary Judgment Denied in Federal Court Slip and Fall Case

In the case of Urrutia v. Wal-Mart Stores, Inc., No. 3:18-CV-01254 (M.D. Pa. Oct. 27, 2020 Mariani, J.), the court denied the store’s Motion for Summary Judgment in a slip and fall matter. 

The court found issues of material fact as to whether an alleged green substance on the floor caused the Plaintiff to slip and fall and as to whether the Defendant had constructive knowledge of that alleged dangerous condition in the produce section of the store. 

According to the record before the court, the store manager testified that he had walked by the area where the Plaintiff fell several times in the hour before the Plaintiff’s incident and saw nothing on the floor. 

That same store manager also testified that he was about ten (10) feet away from the Plaintiff when she fell. When he went to assist the Plaintiff, the store manager admittedly saw something on the floor that was green and about the size of a half dollar. 

The court noted that the time period provided by the defense as to when the manager had walked passed the area were too imprecise to establish that the manager had inspected the produce area close enough in time of the Plaintiff’s fall in order to take the issue away from the jury’s consideration on whether the Defendant should be charged with constructive notice. 

The court additionally noted that the manager and an assistant manager failed to identify themselves on any of the video surveillance of the event in such a manner to support the finding that the Defendant store was entitled to summary judgment. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 19, 2020).




(1 Hour of Substantive CLE Distance Learning Credit)

Tuesday, December 15, 2020 -  12:30 p.m.

Created By:   Daniel E. Cummins, Esq. - Moderator and Presenter

Additional Presenters:

Judge Thomas M. Blewitt (ret.)

Richard G. Fine, Esq.

Thomas B. Helbig, Esq.

Lucille Marsh, Esq.

Judge Joseph Van Jura (ret.)

Judge Thomas I. Vanaskie (ret.)

The cost to attend the program is free for PADC members and $45 for non-members.

To register for this program contact the PADC Executive Director David Cole at

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Tuesday, December 1, 2020

Effort To Amend Complaint To Join Defendant Driver After Expiration of Statute of Limitations Denied

In the case of Fick v. Barbon, 12 Berks 280 (C.P. Berks Co. Feb. 14, 2020), the court denied a Plaintiff’s Motion for Leave to File an Amended Complaint to name a new Defendant after the expiration of the statute of limitations. 

According to the Opinion, the Plaintiff named the owner of the vehicle in the Complaint but not the driver of the vehicle involved in the subject accident.

The record before the court confirmed that personal information was exchanged by the parties at the scene of the accident. It was also noted that a police officer was present at the accident. The record therefore convinced the court that the Plaintiff knew or should have known the identity of the driver prior to the expiration of the statute of limitations.

In denying the Plaintiff’s motion for leave of court to join the driver to the matter, the court additionally took into consideration the potential prejudice to the Defendant driver in allowing him to be named to a lawsuit after the expiration of the statute of limitations where that driver was now enrolled in college and where the fact that the suit was filed only against the grandparent of the driver supported a reasonable expectation of the driver that he would not be sued. 

A copy of the trial court's decision could not be located online, but here is a LINK to a copy of the Non-precedential Opinion by the Pennsylvania Superior Court in the same case.  The Superior Court's decision lays out the law in great detail.  Too bad they did not mark such a thorough Opinion as precedential.  But you can still cite to it anyway under the revised Rules.

Source: "Court Summaries” by Timothy L. Clawges of the Pennsylvania Bar News (Nov. 9, 2020).

Monday, November 30, 2020

En Banc Argument Granted in Stacking Case

Tort Talkers may remember a post from over the summer on the of Franks v State Farm Mut. Auto. Ins. Co., 2020 Pa. Super 181 (Pa. Super. July 31, 2020 Lazarus, J., Kunselman, J., McCaffrey, J.)(Op. by McCaffrey, J.), in which the Pennsylvania Superior Court held that, under Sackett I, 75 Pa.C.S.A. Section 1738(c) requires a new stacking waiver whenever the stacked amount of UIM coverage changes — regardless of whether the change is an increase or decrease in the amount of stacked coverage. 

In so ruling the Court, noted that its interpretation of the issue was consistent with the recognized policy of construing the Motor Vehicle Financial Responsibility Law “liberally in favor of the insured” so as to “afford[ ] the injured claimant the greatest possible coverage.”

As an update it is noted that the Pennsylvania Superior Court has withdrawned this decision in favor of a re-argument en banc on the issues presented.  Here is a LINK  to the relevant Order.

Stay tuned for more updates in the future on this latest stacking case.

I send thanks to Attorney Benjamin P. Novak of the Philadelphia office of Fowler, Hirtzel, McNulty & Spaulding, LLP for bringing this update to my attention.