Thursday, April 9, 2020

Recent Post-Koken Decisions Out of Berks County Favor Plaintiffs


I was recently notified of two (2) Orders issued last year overruling Preliminary Objections in post-Koken Berks County cases seeking to dismiss or sever UIM claims from third party claims in matters in which no bad faith was alleged. Both decisions were issued by Judge Timothy J. Rowley.

The one (1) decision was in the case of Snyder v. Spang and Erie Insurance Exchange, No. 19-05048 (C.P. Berks Co. July 26, 2019 Rowley, J.). 

Anyone wishing to review a copy of this Order click this LINK.

The other decision was issued in the case of Franco v. Walter and Erie Insurance Exchange, No. 19-15873 (C.P. Berks Co. Oct. 7, 2019 Rowley, J.). 

Anyone wishing to review a copy of this Order click this LINK.

I send thanks to Attorney Barrie B. Gehrlein of the Wyomissing, PA law office of Johnson, Duffy, Stewart & Weidner for bringing this case to my attention.



Consider Cummins Law For Defense of Post-Koken Auto Accident Matters in Northeastern Pennsylvania



The Attorneys at CUMMINS LAW defend Post-Koken motor vehicle accident matters in all Counties all across Northeastern Pennsylvania.

We pledge to deliver our legal services in the most prompt, efficient and responsive manner possible.

Attorney Cummins is the only insurance defense attorney in all of northeastern Pennsylvania to be selected to appear in The Best Lawyers in America Directory under the category of Personal Injury - Defense.   

He is also AV-Rated by the Martindale-Hubbell Directory and is a past recipient of the Pennsylvania Defense Institute's "Distinguished Defense Counsel of the Year Award."

Call or write today to discuss the defense of your claim:
Phone:  570-319-5899
Email: dancummins@CumminsLaw.net


www.CUMMINSLAW.net







Tuesday, April 7, 2020

A Three Row Jury Box: Harebrained Idea or a Necessity in a Post-Covid-19 World?


In response to a request for suggestions for ways the Bar and the Bench can navigate the Covid-19 situation, I noted the following.  I still can't tell if it is a harebrained idea or potentially the wave of the future.

One suggestion of mine, with respect to jury trials, was that a third row be added to the jury box, even if that third row is on the outside front of the jury box.  This would enable the 12 jurors and two alternates could spread out more and perhaps sit essentially every other seat.

The third row could at least be on the outside and in front of the box until the jury box wall could me moved outward by a construction contractor so that all 3 rows could be in the box.

Now that you see it, it doesn't look so out of the ordinary.

In the alternative, perhaps in at least civil cases, the requirement that a jury consist of 12 people and two alternates could be reduced to 6 people and 2 alternates.  In this way, the 6 jurors could spread out in the jury box to sit every other seat so has to engage in continued social distancing in the post-Covid-19 world.

Harebrained ideas or the wave of the future?

What do you think?

Recklessness and Punitive Damages Claims Allowed to Proceed in Tractor Trailer vs. Pedestrian Accident


In the case of Molina v. Timmons, No. 1:19-CV-01707 (M.D. Pa. April 2, 2020 Rambo, J.), the court denied a Defendant’s Motion to Dismiss and Strike relative to claims of recklessness and for punitive damages in a case involving a tractor trailer versus pedestrian accident.

According to the Opinion, the Defendant truck driver was allegedly backing up in a rapid fashion near an area that was used for unloading and loading materials when that driver knocked the pedestrian Plaintiff to the ground and ran over the Plaintiff’s midsection with the two right rear axles of the tractor trailer.

The Plaintiff included allegations of recklessness and request for punitive damages in the filed Complaint. The Motion before the court involved the Defendant’s Motion to Dismiss and/or Strike these claims.

The case was originally filed in Luzerne County but removed to the federal court. As such, the Defendant’s motion was decided under Federal Rule of Civil Procedure 12(b)(6).

After reviewing the Complaint, the court in this matter found that the Complaint adequately alleged reckless conduct. The court noted that the Plaintiff alleged that the Defendant tractor trailer driver backed his truck up at an alleged continuous high rate of speed without checking his mirrors, narrowly missing another vehicle, striking and knocking over the Plaintiff with the back end of his trailer, and continuing to drive in reverse over the Plaintiff’s body.

The court found that, accepting these allegations as true and drawing all reasonable inferences in favor of the Plaintiff as required by the standard of review, these allegations sufficiently pled that the Defendant driver knew or should have known that his actions posed a high degree of risk of harm to others and that he nevertheless acted indifferently to those risks.

The court also found, under the same rationale, that the Complaint sufficiently asserted a claim for punitive damages that could move forward in the case.

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

I send thanks to Attorney Clancy Boyland and Attorney Hannah Molitoris of the Philadelphia office of the Morgan & Morgan law firm for bringing this case to my attention.

Building Inspector Found to Be Immune From Claims of Negligence


In the case of Brown v. Taylor Construction and Demolition, No. 13-CV-2727 (C.P. Lacka. Co. April 2, 2020 Nealon, J.), the court addressed a request from a building official for a finding of immunity from claims liability relative to residential construction work.

According to the Opinion, residential property owners, who allegedly suffer damage as a result of negligent construction work by a contractor, filed suit against the contractor and the entity that was hired to act as the borough’s building construction code official to perform inspections and to grant approvals for construction activities upon request by the contractor. 

The Plaintiffs alleged that the contractor completed substandard work without requesting any inspection or obtaining the proper approvals of the work completed. 

The Plaintiffs separately asserted that the building official was allegedly negligent in conducting inspections and in failing to issue stop work orders.

The case came before the court by way of a Motion for Summary Judgment filed by the building official. The building official asserted that he was immune from liability under the International Residential Code and the Political Subdivision Tort Claims Act. 

Judge Nealon noted that, under the International Residential Code, a building construction code official is immune from liability for any act or omission in the discharge of his or her official duties for the borough which occurred while acting “in good faith and without malice.” 

The court noted that, in this matter, the records lacked any evidence to support a claim that the borough construction code official acted with any malice or bad faith. 

Accordingly, the court held that it was free and clear from doubt that the building construction code official was entitled to judgment as a matter of law. As such, summary judgment was granted.

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




Monday, April 6, 2020

Judge Zulick of Monroe County Addresses Issues of Jurisdiction Over Out-of-State Law Firm in Pennsylvania Malpractice Claim


Preliminary Objections by a NY defendant firm contesting jurisdiction in a legal malpractice case were denied in the matter of Rock v. Russo, No. 7605-CV-2019 (C.P. Monroe Co. March 6, 2020 Zulick, J.).

The Plaintiff brought this legal malpractice case arising out of an injury which occurred at the Kalahari Resorts Pocono Hotel on December 25, 2015.

The Plaintiff, a NY resident, retained NY counsel to pursue her claim. The defendant firm represented the Plaintiff but eventually wrote to the Plaintiff in October of 2017 terminating the representation and allegedly advising the Plaintiff in that letter that she had three years from the date of the incident to file suit.

The Plaintiff alleges that she relied upon that letter and believed that she had three years to file suit.  The Plaintiff did not file suit within two years of the date of the accident.

The Plaintiff brought this suit for legal malpractice and Defendants filed Preliminary Objections contesting personal jurisdiction, arguing that they did not have minimum contacts with PA, since they lived in NY, practice in NY, were not licensed to practice in PA, and given that the firm did not do any business in the state.

After reviewing the current status of the law on personal jurisdiction, Judge Zulick agreed that the Defendants' contacts with Pennsylvania were not significant and that, as a result, there was no support for a finding of general jurisdiction over the Defendants.

Judge Arthur L. Zulick
Monroe County

However, on the issue of specific jurisdiction, which required the application of Pennsylvania's Long-Arm Statute and the Due Process Clause of the Constitution.  Under that analysis, specific jurisdiction can be found if a defendant's tortious acts or omissions cause harm in Pennsylvania.  The Court found that the Plaintiff's loss of her right to sue was sufficient to satisfy Pennsylvania's Long-Arm statute.

Under the second part of the analysis, Judge Zulick also found that exercising jurisdiction over the case would also not run afoul of the Due Process Clause of the U.S. Constitution.  The Court found that the Defendant firm engaged in minimum contacts with Pennsylvania and purposely availed itself in the Commonwealth of Pennsylvania by seeking to represent a Plaintiff for pecuniary gain in a personal injury matter that arose in Pennsylvania.

In light of this analysis, the Court overruled the Prelminary Objections and ordered the Defendants to file their Answer to the Complaint.

Anyone wishing to review this case may click this LINK.

I send thanks to Attorney Rusty Allen of the Law Offices of W. Austin Allen, II, P.C. of Warminster, PA for bringing this case to my attention.

Sloan Kettering Hospital (NY) Haled Into Court in Philadelphia


In the case of Estate of Albert v. Thomas Jefferson Univ. Hospital, Inc., June Term, No. 1122 (C.P. Phila. Co. Jan. 31, 2020 Massiah-Jackson, J.), the court ruled that it had personal jurisdiction over an out-of-state Defendant after finding that the Defendant had sufficient minimum contacts with Pennsylvania such that the Defendant could have reasonably anticipated being sued in Pennsylvania.

This matter arose out of a medical malpractice action against Sloan Kettering Hospital, which is located in New York. 

The Plaintiff’s Complaint alleged corporate negligence and vicarious liability claims against multiple Defendants with regards to their actions in providing the decedent, David Albert, with allegedly false information about his medical imaging results. The case involved the results of an MRI which the decedent had completed in New York. At all relevant times, the decedent was a resident of Pennsylvania. 

Defendant Sloan Kettering moved for summary judgment arguing that the court did not have personal jurisdiction over it. That Defendant asserted that the Plaintiff had failed to establish any action taken by Sloan Kettering or its agents that caused harm to the decedent in Pennsylvania. 

The Plaintiff responded by arguing that negligent claims involved injuries that occurred while the decedent was present in Pennsylvania. The Plaintiff stated that Sloan Kettering contacted the decedent in Pennsylvania and allegedly provided him with false information about his MRI results. Sloan Kettering then allegedly failed to timely forward those imaging results to the decedent’s physicians, who were located in Pennsylvania. The Plaintiff also alleged that Sloan Kettering promised to coordinate the decedent’s care but that it had failed to communicate with his medical providers who were located in Pennsylvania. The Plaintiff alleged that these steps, and others, allegedly resulted in harm to the decedent in Pennsylvania. 

The court noted that due process law permits specific jurisdiction over a defendant to be found where a defendant engaged in numerous contacts with a forum state. 

The court noted that Sloan Kettering had promoted a treatment program and had promised the decedent and his family to coordinate his care and monitor his medical services. The court also noted that Sloan Kettering had engaged in national marketing and recruitment for its clinical trials, including activities in Lehigh Valley, Pennsylvania. 

The court in this matter found that specific jurisdiction over the Defendant hospital was established based upon the hospital’s extensive contacts with Pennsylvania. After finding that the Plaintiff had met its burden of establishing that the hospital allegedly caused harm to the decedent in Pennsylvania its acts and omissions, the court concluded that Sloan Kettering should have reasonably anticipated being called into court in Pennsylvania. 

As such, the hospital’s Motion for Summary Judgment on jurisdictional issues was denied. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 10, 2020).