Friday, January 19, 2018

Writing Tips

I came across the below good tips for writing and, finding them amusing, thought I would share them with you here on Tort Talk:

Tuesday, January 16, 2018

A Primer on Complaint Drafting by the Superior Court

In the case of Bouchon v. Citizen Care, Inc., 2017 Pa. Super. 379 (Pa. Super. Dec. 6, 2017 Stabile, Olson, Strassburger, J.J.) (Op. by Stabile, J.), the Pennsylvania Superior Court provided lessons on the proper drafting of a Complaint in a civil litigation matter.  

Among the tips provided by the Superior Court in this decision is that a Plaintiff must plead claims separately against each Defendant.   The court noted that only claims against jointly liable Defendants may be pled together under certain circumstances.  The court noted that pleadings claims against separate and distinct Defendants together makes it impossible for each Defendant to properly respond.   As such, the court noted that multiple use of “and/or” and references to “Defendants” globally  render the Complaint unanswerable and are, therefore, improper.  

The court also noted that a Plaintiff is required to denominate the claims as wrongful death claims or survival actions in the Complaint.    The court noted that the nature of each claim must be specifically identified under Pa. R.C.P. 1019.  Moreover, wrongful death and survival actions are required to be labeled as such under Pa. R.C.P. 1020.  

The court additionally noted that wrongful death and survival actions must be brought by a personal representative of the deceased, and not merely by a statutory beneficiary.  

The court otherwise noted that claims of negligence, corporate negligence, and vicarious liability are separate causes of action.   It was additionally noted that “Damages” is not a proper separate cause of action.  

In the end, the court did provide the Plaintiff with another opportunity to amend and refile their Complaint.   

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

I send thanks to Attorney James M. Beck, of the Philadelphia office of Reed Smith for bringing this case to my attention.  

Friday, January 12, 2018

Plaintiff's Motion to Remand Post-Koken Claim Back To State Court Denied

In his recent decision in the case of Hagan v. Leon, No. 3:17-cv-2155 (M.D. Pa. Jan. 3, 2018 Mariani, J.) (Mem. Op. Judge Robert D. Mariani of the Federal Middle District Court of Pennsylvania), the court denied a Plaintiff’s Motion to Remand his post-Koken claims back to the state court.  

Judge Robert D. Mariani
M.D. Pa.
In this matter, the Plaintiff sued the alleged third party tortfeasor Defendants on a negligence claim and his own carrier, Progressive, for underinsured motorist benefits.

The Plaintiff had previously released the tortfeasor Defendants in exchange for a payment of $15,000.00 along with an agreement to refuse any consent to removal that may be sought if the UIM carrier attempted to remove the case to federal court.  

Thereafter, Progressive filed a Notice of Removal to which the Plaintiff responded with a Motion to Remand.   The Plaintiffs asserted that the Notice of Removal failed to allege citizenship of all parties at the time the Complaint was filed and further asserted that not all Defendants had consented to the removal as required by the removal statute.  

On the same day that the Plaintiffs’ Motion to Remand was filed, Progressive amended its Notice of Removal to include allegations of the citizenship of all of the parties at the time the Complaint was filed.  

After reviewing the matter, the court found that both of the Plaintiffs’ arguments lacked merit and, therefore, denied the Plaintiff’s Motion to Remand.  

Judge Mariani more specifically noted that Progressive’s Amended Notice of Removal clearly stated that, at the time the Plaintiffs’ Complaint was filed, the Plaintiffs were citizens of Pennsylvania and the tortfeasor Defendants were citizens of New Jersey and the UIM carrier Defendant was a citizen of Ohio.   Accordingly, the court found that, even if Progressive’s original Notice of Removal was deficient, the defect was cured by the amendment.

Turning to the Plaintiffs’ second argument, the court reviewed the procedure for removing a civil case to federal court under 28 U.S.C. §1446.  The court noted that this code provision has been construed to require that, when there is more than one (1) Defendant, all must join in the removal petition.   However, the court noted a recognized  exception that provided that the unanimity rule may be disregard where (1) a non-joining party is an unknown or nominal party; or (2) where a defendant has been fraudulently joined.  

The court noted that nominal parties are generally those  parties without any real interest in the litigation.

Here, the court noted that the tortfeasor Defendants had been released from the matter by way of a settlement agreement.  Accordingly, the court found that the tortfeasors had no real remaining interest in the litigation and, therefore, were, consequently, nominal parties from whom consent was no longer required to support a removal of a state court litigation to federal court.  

In so ruling, Judge Mariani stated that it did not appear that the Third Circuit Court of Appeals had ever considered a similar fact pattern prior to this decision.  However, the court noted that similar rulings have been issued by the Fifth Circuit Court of Appeals and the Eighth Circuit Court of Appeals granting remands under analogous facts.   As such, the Plaintiff’s Motion to Remand was denied.  

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


Wednesday, January 10, 2018

Statute of Limitations As Compared to Statute of Repose

In its recent decision in the case of Dubose v. Quinlan, No. 22 EAP 2016 (Pa. Nov. 22, 2017) (Op. by Mundy, J.)(Baer, J., Concurring and Dissenting)(Saylor, C.J., Dissenting), the Pennsylvania Supreme Court reviewed the differences between the statute of limitations and a statute of repose in the context of a medical malpractice case.  

Concisely, the court found that statute of limitations create a time limit for bringing suit, based upon the date the claim accrued.  In contrast, statutes of repose may limit when suits may be brought, not on the basis of an accrual of a claim, but from some other cut-off date.  

The court noted that only statutes of limitation are subject to equitable tolling under Pennsylvania law.  

This decision is also notable in its holding that the statute of limitations for both wrongful death and survival claims in a medical malpractice case is two (2) years from the date of death.  

The court also noted that the MCARE Act modified the applicable statue of limitations in medical malpractice cases such that, in wrongful death actions arising out of a medical malpractice claim, the claim only accrues at death, not from earlier injuries.   The court found that, as the more specific statute on the issue presented, the MCARE provisions prevailed over the general tort statute of limitations.  

Anyone wishing to review the Majority Opinion may click this LINK.

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

Chief Justice Saylor's Dissenting Opinion can be viewed HERE.

I send thanks to Attorney James M. Beck, of the Philadelphia office of Reed Smith for bringing this case to my attention.  

Links To Forms Under Public Access Policy Corrected

I believe I have corrected the LINKS to the "Confidential Information Form" and the "Confidential Document Form" under the AOPC's Public Access Policy that were contained in the recent Tort Talk blog post confirming that the policy is now in effect.

I apologize for any inconvenience.

Here is a LINK to go back to that Tort Talk post.

Don't forget that all court filings should now include the following certification:

"I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania:  Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents."

I had originally planned to file a separate piece of paper with a that certification under a caption but have changed my mind to simply add the certification right above the signature line of every document I file with the court.

Monday, January 8, 2018

IN EFFECT NOW: The Public Access Policy of the Unified Judicial System of Pennsylvania

Effective today, January 8, 2018, the Public Access Policy of the Unified Judicial System of Pennsylvania will require attorneys to file a certification, with every document filed with the court, that confirms that sensitive, private, and/or confidential information has been redacted from the document.

The certification that shall accompany each filing is required to be in substantially the following form:

"I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania:  Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents."

Also, if confidential information is contained within the court filing, or in documents attached to the court filing, other documents noted below will have to be filed as well.

Here is a LINK to the Public Access Policy of the Unified Judicial System of Pennsylvania:  Case Records of the Appellate and Trial Courts.

Here is a LINK to the "Explanatory Report" on the Public Access Policy of the Unified Judicial System of Pennsylvania.

Here is a LINK to the Confidential Information Form which shall be filed whenever a party is required to submit documents or filings containing confidential information with the court filing.

Here is a LINK to a Confidential Document Form which is required to be filed whenever documents attached to the filing contain confidential information that should be shielded from the public.

Wednesday, January 3, 2018

Judge Nealon of Lackawanna County Weighs in on Severance, Stay, and Bifurcation of Post-Koken Bad Faith Claims

In the case of Fertig v. Kelley, No. 16 - CV - 4801 (C.P. Lacka. Co. Dec. 29, 2017 Nealon, J.), Judge Terrence R. Nealon denied a UIM carrier's motion to sever and stay bad faith claims in a Post-Koken matter but held that the bad faith claims would be later bifurcated for trial.

Judge Nealon issued a thorough Opinion that outlined the current status of the splits of authority in the Pennsylvania state and federal courts on the issue of bifurcating and staying a bad faith claim in a Post-Koken lawsuit that also contains third party negligence and UIM breach of contract claims.  

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon confirmed that, to date, no state appellate court has addressed this issue.

The court in Fertig cited to issues of judicial economy in deciding to deny the motion to sever and stay the bad faith claims during the discovery phase of the litigation.  The court directed that any discovery disputes on the bad faith claim could be addressed through motions practice.

In ruling that the bad faith claims would be bifurcated for purposes of trial, Judge Nealon elected to follow the procedure first espoused by Allegheny County Court of Common Pleas Judge R. Stanton Wettick in the cases of Gunn and Wutz

Under that procedure, the trial of the third party negligence claims and UIM claims would go first before the jury, and would then be immediately followed by a bench trial on the bad faith claims. 

Under this procedure, once the jury retires to the deliberation room on the third party and UIM claims, the UIM defendant would be required to turn over additional unredacted discoverable materials from the carrier's file that may have been properly withheld during the pendency of the UIM claim (i.e., information on the carrier's evaluation of the claims, etc.).   The Plaintiff would then have the option of proceeding directly into the bench trial on the bad faith claims or requesting a continuance to digest the information produced.

Anyone wishing to review this decision may click this LINK.

Commentary:  As stated, there remains a split of authority on this issue of severance (and staying) and/or bifurcation of various types of claims in Post-Koken auto accident matters.  A comprehensive list of the cases can be viewed on the Tort Talk Post-Koken Scorecard, which can always be accessed down the right hand column of the blog at  Here is a quick LINK to the Scorecard for your easy reference.