Friday, March 27, 2015


Punitive Damages Claim Allowed to Proceed in Lackawanna County Trip and Fall Case

In a recent Order issued by Senior Visiting Judge John Braxton in the case of O'Malley v. Comet Realty Partnership, 2014 CV 5109  (C.P. Lacka. Co. March 11, 2015 Braxton, S.J.), the court denied a Defendant's Preliminary Objections filed in a slip and fall case.

According to information secured on the case, the Plaintiff, as a business invitee,was walking on the sidewalk in the Abington Professional Plaza center in Clarks Summit, Pennsylvania, and was intending on entering a medical lab located in the plaza for a medical procedure.  

While walking on the sidewalk the Plaintiff's foot allegedly became lodged in a crack in the sidewalk, allegedly causing her to twist her left ankle, lose her balance, and land on her right knee.
The Plaintiff averred that the Defendant was allegedly admittedly aware of the condition over the several months leading up to the accident but nevertheless allowed the condition to remain while allegedly waiting for better weather to fix the condition.
The Plaintiff filed suit alleging negligence and punitive damages. The Defendant filed Preliminary Objections to the claim for punitive damages.  As stated, the Plaintiff prevailed after oral argument was held in front of the Judge Braxton.  The Court's decision was by simple Order only.

Anyone desiring a copy of the Court's Order may contact me at
I send thanks to the prevailing Plaintiff's attorneys, Jason J. Mattioli and Thomas W. Munley, both of the Scranton law firm of Minora, Minora, Colbassani, Krowiak, Mattioli & Munley for bringing this case to my attention.

Pennsylvania Superior Court Denies Defendant's Request for New Trial in a Limited Tort Case

In its recent decision in the case of Brown v. Trinidad, 2015 Pa. Super. 46 (Pa. Super. March 9, 2015 Lazarus, Wecht, and Strassburger, J.J.)(Op. by Lazarus, J.)(Concurring Op. by Strassburger, J.), the Pennsylvania Superior Court reviewed the current status of Limited Tort law in Pennsylvania and affirmed a trial court's denial of a defendant's request for a new trial after a Philadelphia County jury awarded a verdict to a Limited Tort plaintiff.

On appeal, the Superior Court noted that the medical evidence presented by the Plaintiff contained references to expert testimony from the Plaintiff's side that the Plaintiff sustained a lumbar spine disc herniation as a result of the subject accident that not only impaired the Plaintiff in his every day activities but also made the Plaintiff more susceptible to the work injury he sustained three months after the accident.  The Plaintiff's evidence also included references to neck and mid-back injuries, pain, and residual limitations.

The court also noted that while the Plaintiff, who was in his mid-twenties, admitted that he did not feel pain on the date of the accident, he quickly developed low back pain in the days that followed the accident.  When the pain allegedly became severe, the Plaintiff sought out treatment.  The Plaintiff advised that he stopped treating approximately four months after the accident after being allegedly advised by his medical providers that his injuries could not be fixed.

The record before the court also confirmed that with regards to substantial impairments, the Plaintiff had testified at trial that he had difficulty playing with his young daughter and that he could no longer run or jump, as compared to prior to the accident when the Plaintiff enjoyed bowling, playing basketball, and ice skating.

As noted, the Pennsylvania Superior Court affirmed the trial court's denial of the Defendant's request for a new trial.

The Majority Opinion in Brown v. Trinidad can be viewed HERE.

For other recent Limited Tort decisions of note from around the Commonwealth, click this LINK.

Tuesday, March 24, 2015

Link To Philadelphia County Court of Common Pleas Sanction Opinion Re: Violation of a Preclusion of Evidence Order for Trial

Here is a LINK to an Opinion out of the Philadelphia County Court of Common Pleas in the case of Sutch v. Roxborough Mem. Hospital, July Term 2009, No. 00901 (Phila. Co. Feb. 3, 2015) in which the court requests the Superior Court to affirm its entry of a substantial sanction of nearly a million dollars against a defense counsel for a violation of the trial court's preclusion order with respect to expert testimony at trial.

Negligence Per Se Doctrine Applied Relative to Maintenance of Smoke Alarms in Fatal Fire Case

In a recent Pike County Court of Common Pleas decision in the case of Tooley v. Mill Rift Inn, Inc., No. 2496-2009 Civil (C.P. Pike Co. Feb. 25, 2015 Kameen, P.J.), President Judge Joseph F. Kameen addressed Motion for Summary Judgments filed by each party in a case arising out of a fatal fire at the Mill Rift Inn in Westfall Township, Pike County, Pennsylvania.   At the time of the incident, the Plaintiff’s decedent resided in the Mill Rift Inn in one of its apartments.  

The issue before the court was whether or not the Plaintiff was entitled to summary judgment under the negligence per se doctrine given the Defendant’s alleged failure to annually inspect the smoke detectors at the Mill Rift Inn in violation of Pennsylvania Code Provisions.

After reviewing the record before the court, Judge Kameen found that the Plaintiff had established that the Defendant’s violation of the applicable law was sufficient to trigger the doctrine of negligence per se.  In his opinion, Judge Kameen set forth the law pertaining to his doctrine and the four (4) elements that a party must meet to establish the application of the negligence per se doctrine.  

Judge Joseph F. Kameen
Pike County
More specifically, the court found that the Defendant’s failure to annual inspect the smoke detectors in the decedent’s apartment and/or to notify her in writing of her own duty to inspect her apartment’s smoke detectors as required by the Pennsylvania Code was indeed a substantial factor in bringing about the Plaintiff’s harms for purposes of the negligence per se analysis.  As such, the Plaintiff’s Motion for Partial Summary Judgment in this regard was granted.  

With regards to the Defendant’s Motion for Summary Judgment which argued, in part, that the Plaintiff was ever a tenant at the Mill Rift Inn, Judge Kameen found that the record established that an oral agreement existed that was sufficient to create a landlord/tenant relationship under Pennsylvania law.   The court found that the verbal agreement with regards to the Plaintiff living in the apartment was sufficient to establish the existence of a month-to-month rental agreement between the parties under Pennsylvania law.  

The court also denied the Defendant’s Motion for Summary Judgment based upon its status as a landlord out of possession.  

First of all, the court noted that there were no support for this argument by the Defendant with respect to the control of the “hard wired” electrical systems on the premises such that the landlord could be considered a landlord out of possession.  

Judge Kameen also noted that, even if the court found that the Defendant was a landlord out of possession, the reserved control exception of the general rule that landlords out of possession are protected from liability was found to apply where the hardwired items such as the smoke detectors were not serviceable by the tenants who lack lawful excess to the main electrical lines in the building.   The court also noted that the Plaintiff had no right of access to the basement where the fuse boxes were located.  

Accordingly, there were no reasonable expectation that the decedent would have been able to repair the smoke detectors in her apartment.   As such, the Defendant’s Motion for Summary Judgment in this regard was denied.  

Judge Kameen did grant the Defendant’s Motion for Summary Judgment on the Plaintiff’s allegations of a breach of implied warranty of habitability as there was no evidence to show that the tenant gave notice to the landlord of any alleged defect or condition such that the landlord had a reasonable opportunity to make the necessary repairs prior to the incident.   Here, there was no evidence that the tenant notified the Defendant of any defects at issue in this case, including the allegedly non-functional smoke detectors.   As such, this claim was stricken under the summary judgment standard. 

I send thanks to Attorney Michael Foley of the Foley Law Firm in Scranton, Pennsylvania for providing me with a copy of this Opinion in the case in which he is the Plaintiff’s counsel.  

 Anyone desiring a copy of this may email me at

Judge Conaboy Circumscribes Proper Bad Faith Claims in UM Context

In his recent decision in the case of Cicon v. State Farm Mutual Automobile Insurance Company, No. 3:14-cv-2187 (M.D. Pa. March 4, 2015 Conaboy, J.), Federal Middle Court Judge Richard P. Conaboy, considered Defendant State Farm’s Motion to Dismiss four counts of a Post-Koken Complaint filed by the Plaintiff, including Bad Faith claims.  

More specifically, State Farm sought a dismissal of a Count of Breach of the Duty of Good Faith and Fair Dealing, a Count for Breach of Contract, a Count of Negligence, and a Count of Vicarious Liability, all asserted against the Uninsured Motorist (UM) Benefits carrier. 

According to the Opinion, this matter arose out of personal injuries allegedly sustained as a result of a motor vehicle accident involving an uninsured vehicle.   Following the accident, the Plaintiff submitted a claim for uninsured motorist benefits.  

Prior to retaining any attorney, the Plaintiff attended an independent medical examination at the request of the carrier and, thereafter, attempted to settle the claim for a period of seven (7) months.  When the settlement discussions failed to be successful, the Plaintiff retained counsel.  

Plaintiffs’ retained counsel made a demand of the $100,000.00 UM limits, and supplied State Farm with additional documentation in support of the claims presented.  Defendant, State Farm responded with a $30,000.00 offer.  

The Plaintiff proceeded to file suit alleging that the offer presented by State Farm was unreasonable and inconsistent with the documentation provided by the Plaintiff in terms of medical treatment and wage loss information.  

With respect to the Defendant’s motion for the dismissal of the Plaintiff’s allegations of a violation of a contractual duty to observe the covenant of good faith and fair dealing, the court noted that the Pennsylvania Supreme Court has held that “there is no cause of action for a breach of the implied duty of good faith and fair dealing in a case for first party insurance benefits, like this one, where an insured is suing his insurer."    See Cicon at p. 5-6 citing D’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 507-10 (1981).   As such, this claim was dismissed by the court. 

Judge Richard P. Conaboy
Federal Middle District
of Pennsylvania
Judge Conaboy allowed the Plaintiff’s Count for Breach of Contract to stand and rejected the defense argument that that Count should be dismissed as being redundant of the claims alleged Counts 1 and 2 in the Complaint for UM benefits and loss of consortium claims, respectively.   Although the court noted that it was inclined to agree that the damages recoverable under all of these claims were seemingly identical and “necessarily limited by the terms of the policy,” the court noted that the claims presented in these three counts were technically separate such that the Breach of Contract claim would be allowed to proceed.  

Judge Conaboy went on to dismiss Count 6 of the Complaint which sounded in Negligence and was based upon an allegation that the Defendant, State Farm, owed a duty of care to the Plaintiff, failed to discharge that duty, and was allegedly therefore liable in tort.  

In this regard, the court accepted the defense argument that the “gist of the action” doctrine operated to preclude the Plaintiffs’ negligence count as an improper attempt to characterize an ordinary breach of contract claim as a tort action.   The court ruled in this fashion despite recognizing the Plaintiffs’ argument that the Supreme Court of Pennsylvania have never adopted the gist of the action doctrine in an insurance coverage dispute context. 

However, Judge Conaboy felt that, after his review of the Superior Court case law, that the Pennsylvania Supreme Court would rule that the Plaintiff’s negligence count should be barred by the gist of the actions doctrine under the circumstances presented if that Court was ever faced with the issue. 

Judge Conaboy also agreed that the Plaintiffs’ allegations of vicarious liability on the part of the Defendant State Farm, based upon the alleged negligent and intentional misconduct of its adjusters, supervisors, and defense counsel, should be dismissed.  

In so ruling, the court noted that the only party in this case was the Defendant and that, as such, the party Defendant could not be vicariously liable for its own conduct.   Judge Conaboy additionally noted that vicarious liability is a creature of tort law, which caused him to reiterate his finding that the gist of the action doctrine required that this case be determined under contract law concepts and not tort law principles.

Overall, the court granted the Defendant’s Motion to Dismiss in part and denied it in part.

Judge Conaboy’s Opinion can be read as supporting an argument by a Defendant carrier that the sole cause of action in a first party case for an alleged breach of good faith is pursuant to 42 Pa. C.S. §8371.  This decision also arguably stands for the proposition that there is no common law cause of action for a breach of the duty of good faith and fair dealing, with its attendant consequential damages, in a first party case.  

I send thanks to the prevailing defense counsel, Attorney Lee Ullman of the Reading, Pennsylvania office of Forry Ullman, for providing me with a copy of this Opinion.

Anyone desiring a copy of this Opinion may contact me at

Monday, March 23, 2015

Extent to Which Expert Witness May be Cross-Examined for Bias Circumscribed by Pennsylvania Superior Court

In Flenke v. Huntington, 2015 Pa. Super. 50, 467 MDA 2014 (March 17, 2015 Stabile, Bowes, Ott J.J.)(Op. by Stabile, J.), the Pennsylvania Superior Court ruled that, while e expert witnesses may be impeached for bias, including frequent work for the same side in litigation, including for insurance carriers, there are limits to such cross-examination.

This case arose out of a motor vehicle accident.  The specific evidentiary issues in this matter centered around the Plaintiff's cross-examination of the defense medical expert.

Under the well-established rule of law that holds that a witness cannot be cross-examined on collateral matters, see J.S. v. Whetzel, 860 A.2d 1112, 1120 (Pa.Super. 2004), the court in Flenke noted that even bias evidence can become too intrusive and collateral. 

In this matter, as is becoming more and more frequent in civil litigation matters ever since the Cooper v. Schoffstall and Feldman v. Ide decisions set down the parameters for gathering discovery on an expert's litigation-related activity and compensation, the jury heard, and plaintiff hammered home during closing argument, the income and litigation-activity bias evidence concerning the defendant’s expert. 

On appeal, the Plaintiff was challenging the trial court's limitations on the use of this type of evidence at trial.  The Superior Court found that the additional income testimony that was excluded, even if error, was cumulative under Pa.R.E. 403 and was, therefore, harmless in the end. 
The Superior court more specifically found that detailed review of the expert’s fifty most recent reports involving other persons would have introduced collateral issues into the case.  As such, this evidence was found to have been properly excluded by the trial court.

The Superior Court also ruled that evidence of the expert’s work for defendant’s "insurance company" was properly excluded as it would have introduced the impermissible topic of insurance into the case. 

In the end, the Superior Court affirmed the trial court's denial of the Plaintiff's request for a new trial.

Anyone wishing to review this notable opinion pertaining to the cross-examination of experts at trial on the issue of bias may click this LINK.

I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith for bringing this case to my attention.  I highly recommend that you check out Attorney Beck's award-winning and nationally recognized blog, the Drug and Device Law Blog, which can be accessed at this LINK.