Wednesday, January 26, 2022

Employer Who Furnishes Alcohol At An Employee Event Considered to be a Social Host -- No Liability for Later DUI Accident By Employee


In the case of Klar v. Dairy Farmers of America, Inc., No. 1280 WDA 2020 (Dec. 17, 20221 Pa. Super. Olson, J., Nichols, J., and Musmanno, J.) (Op. by Olson, J.), the Pennsylvania Superior Court affirmed the entry of judgment on the pleadings in favor of the Defendant.

For a summary of the trial court's opinion that was affirmed (and a Link to that decision), please see this Tort Talk Blog post HERE.

The trial court had entered judgment against the Plaintiff and in favor of an employer in a case in which the trial court had ruled that an employer who collects contributions for a social event was still considered to a social host with respect to any liability claims under the Dram Shop Act. Based upon this ruling, the trial court dismissed the Plaintiff’s negligence claims against the employer.

According to the Superior Court's Opinion, the Pennsylvania was injured in a motor vehicle accident when the vehicle operated by the Defendant driver struck the Plaintiff’s motorcycle.

The Defendant driver was an employee of Dairy Farmers of America. That employer had sponsored a golf outing and encouraged its employees to attend. The employees made a monetary contribution to offset the cost of the greens fees, food, and alcohol. After collecting the contributions from the employees, the employer paid for the event in its entirety.

The Plaintiff alleged that, at the event, the Defendant driver consumed an amount of alcohol that raised his blood alcohol level beyond the legal limit. The Defendant driver then proceeded to drive and was involved in the accident with the Plaintiff.

The Plaintiff sued the Defendant driver as well as his employer under negligence claims. The employer filed a Motion for Judgment on the Pleadings arguing that it was not liable under the Dram Shop Act because it was a social host.

The Pennsylvania Superior Court ruled that an employer who furnished alcohol at a sponsored employee social event was not a licensee or other party subject to per se Dram shop liability but was instead a social host who could not be held proximately liable for an employee causing an alleged drunk driving accident.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 4, 2022).


Source of image:  Photo by Steven Shircliff on unsplash.com.

Are You Willing To Help Out as a Mock Trial Juror? (Virtual)

 


Monday, January 24, 2022

The Benefits of Participating in the Mock Trial Competitions as a Juror

 


The local District High School Mock Trial Competitions are set to commence next week on February 1, 2022.  Hoping you might please consider serving as a juror or a judge for the competitions which will be virtual.  The competitions typically start at 6 p.m. and, given that they are being held virtually, you can participate as a juror from the comfort of your own home.

Here is a LINK to the Tort Talk post on my previous article from the Pennsylvania Lawyer magazine that lists the many ways that attorneys can benefit from their participation in the PBA's High School Mock Trial competition as a juror or as an Attorney Advisor to a local high school.

Hoping you might please give the article a read to consider the benefits of this participation. 

Here is a LINK to the Tort Talk post on  my previous article that appeared in the Pennsylvania Law Weekly regarding the efforts to get the Pennsylvania Supreme Court to change the CLE/CJE Rules to allow for attorneys and judges to secure credits for participation in high school Mock Trial competitons as jurors and judges.

To date, those CLE Rules have not changed.  As it stands now, you can still secure CLE credits for taking exercise classes or for an hour of meditation, but not for your participation as a juror or a judge in a Mock Trial competition.  Go figure.  Ridiculous.

Please note that the high school kids who participate in Mock Trial spend hours and hours crafting and practicing their case presentations in the case this year which involves a murder trial.  Hoping you might consider volunteering as a juror so that we can fill the virtual jury boxes for the kids.  Thank you.

To sign up to serve as a juror for the Lackawanna County Mock Trial competition, please email Attorney Katie Nealon at knealon@munley.com or Kaitlyn McDonough at the LBA at kmcdonough@lackawannabar.org.

No Duty on UIM Carrier to Advise Plaintiff of Change in the Law


In the case of Devine v. Geico General Ins. Co., No. 5:21-CV-02679-JMG (E.D. Pa. Jan. 7, 2022 Gallagher, J.), the court addressed claims of breach of contract, breach of the implied covenant of good faith and fair dealing, statutory bad faith claims and claims of a violation of the Unfair Trade Practices and Consumer Protection Law (UTPCPL) in a UIM case in which the household exclusion was relied upon by the carrier.

At issue before the court was a Motion to Dismiss the Complaint filed by the carrier. This motion was largely based on statute of limitation arguments.

The court found that the event triggering the running of the statute of limitations was the original denial of the claim and not a later refusal to pay after a renewed demand was submitted by the Plaintiff.

The court applied the four (4) year statute of limitations on the contract claims, including a breach of the covenant of good faith and fair dealing. The court found that these claims were barred based upon the allegations on the face of the Complaint.

The court also noted that the statutory bad faith claims asserted by the Plaintiff was subject to a two (2) year statute of limitations. As such, those claims were also found to be time-barred.

Relative to the Plaintiff’s bad faith claims, the court found that the Plaintiff had failed to allege any specific facts to support these claims, even if they were not barred by the statute of limitations.

Notably, the Plaintiff also asserted that the carrier had violated the UTPCPL because the carrier allegedly breached a duty to notify the insured that the Pennsylvania Supreme Court had changed the law regarding the household exclusion by way of the Supreme Court’s decision in the case of Gallagher v. Geico.

The court in this Devine case found “no support in Pennsylvania law for such an extraordinary duty” as alleged by the Plaintiff.

Judge Gallagher also noted in the Devine case that the “Courts that have addressed the issue of whether a company has a duty to inform its customers of a change in the law have uniformly held that no such duty exists.”

Given that the court found that any effort to amend their Complaint would be futile, the Complaint in this matter was dismissed with prejudice by the court.

Anyone wishing to review a copy of this decision may click this LINK.  The companion Order can be viewed HERE.

I send thanks to Attorney Lee Applebaum of the Philadelphia law office of Fineman Krekstein & Harris for bringing this case to my attention. Please check out Attorney Applebaum’s excellent blog entitled The Pennsylvania and New Jersey Bad Faith Case Law blog.

Friday, January 21, 2022

ARTICLE: PLEADING FOR CLARITY: Appellate Guidance Needed To Settle The Issue Of The Proper Pleading of Recklessness in Personal Injury Matters


Here is a LINK to my article entitled "PLEADING FOR CLARITY: Appellate Guidance Needed To Settle The Issue Of The Proper Pleading of Recklessness In Personal Injury Matters" which was just published in the January 2022 edition of The Pennsylvania Bar Association Quarterly.

Note that the article contains a detailed Scorecard of decisions handed down by the various county courts of common pleas all across the Commonwealth of Pennsylvania in recent years, which may prove helpful for your research on this issue, depending upon which county you are litigating the issue.

I send thanks to Professor Robert Rains, the Editor of the PBA Quarterly for his excellent editing of the article into a better article and for selecting this piece for publication.

Also thanking Phyllis Pilla for her editorial assistance with the article as well.

Anyone desiring a copy of any of the cases referenced in the article may contact me at dancummins@CumminsLaw.net.


Wednesday, January 19, 2022

Court Finds No Personal Jurisidiction Over Cruise Line Where Plaintiff's Injury Did Not Occur In Pennsylvania


In the case Knox v. Seven Seas Cruises, No. 525, August Term 2020 (C.P. Phila. Co. Aug. 21, 2021 New, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to confirm the trial court’s decision to dismiss the case for lack of personal jurisdiction.

According to the Opinion, the lawsuit between the Plaintiff and the cruise line grew out of a dispute over the Plaintiff’s request for a cash refund. 

The Plaintiffs filed suit in Philadelphia County on the claims presented and asserted that the Pennsylvania trial court had specific jurisdiction because the financial harm that the Plaintiff allegedly suffered related to the cruise line’s contacts in Pennsylvania, specifically, the company’s solicitation of the Plaintiffs’ business.

The cruise line filed Preliminary Objections raising the issue of personal jurisdiction.

The court ruled that, while the Defendant solicited business from Pennsylvania, including the Plaintiffs’ business, the court lacked specific personal jurisdiction over this foreign corporation because the allegedly injury-causing incident involving the Defendant did not occur in this State of Pennsylvania. The court otherwise found that the combination of the Plaintiffs’ Pennsylvania residency and the Defendant’s solicitation of business in Pennsylvania was not sufficient to confer personal jurisdiction over the Defendant.

As such, the trial court requested that the Superior Court affirm its decision on appeal.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 21, 2021).

Tuesday, January 18, 2022

Request For Consolidation of Cases "For All Purposes" Denied Where Each Action Sought Different Remedy


In the case of Montage Mountain Resorts, L.P. v. PA American Water Company, No. 20-CV-4926 (C.P. Lacka. Co. Jan. 7, 2022 Nealon, J.), the court addressed a Motion by the Plaintiff seeking to consolidate two (2) related lawsuits “for all purposes.” This request was opposed by the Defendant.

The courted noted that the Plaintiff ski resort initially commenced a tort action against a water utility company seeking compensatory and punitive damages based upon the utility’s alleged discharge of pellets from its water treatment facility into the reservoir which also served as the water source for the resort’s snowmaking systems. The resort asserted that the improperly released pallets clogged its snowmaking machinery which resulted in substantial repair costs, lost snowmaking capacity, closed ski trails due to inadequate snow, and diminished ski season revenue.

The ski resort later instituted a second action against the utility company under the Clean Streams Law in which the ski resort requested the abatement of an alleged public nuisance allegedly created by the utility company’s alleged discharge or pollution.

Before the court in this case was the ski resort’s Motion to Consolidate its two (2) lawsuits “for all purposes.”

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the Motion under the applicable standards set forth pursuant to Pa. R.C.P. 213(a), regarding consolidation of actions. 

The court noted that matters may be consolidated where they involve common questions of law or fact or arise from the same occurrence. The court found that this standard was met by the allegations in the two (2) lawsuits at issue in this case. The court also noted that consolidation of the matters would reduce the parties’ litigation expenses, would avoid duplicate trials, and would promote judicial economy.

However, the court rejected the request for a “complete consolidation” of the separate actions “for all purposes” as there was not a complete identity of parties, claims, defenses, and issues as required by the law. 

The court also noted that the Plaintiff was seeking different relief in each action in that the first tort action sought a monetary relief from a jury, whereas the second nuisance action sought an abatement remedy from a judge and did not require a finding of negligent fault and which involved different elements of proof.

Given that the claims, defenses, and legal issues in both matters were not identical, the request for a complete consolidation for all purposes was denied.

In the end, the court granted the resort’s request to consolidate the actions for purposes of discovery and trial but noted that each action would retain its separate identity and require its own judgment.

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