Monday, August 18, 2014

A Supreme Victory for Residential Homebuilders

In its August 18, 2014 decision in the case of Conway v. Cutler, No. 80 MAP 2013 (Pa. Aug. 18, 2014)(Op. by McCaffery, J.), the Pennsylvania Supreme Court ruled that a subsequent purchaser of residential real estate cannot pursue a contractual claim for implied warranty of habitability as that claim is limited to original homeowners who had a direct contractual relationship with the builder/vendor. 

According to some who practice construction litigation, this case is an enormous victory for residential homebuilders in Pennsylvania who have been subjected to litigation involving water intrusion into stucco clad homes.  In the majority of these cases, the negligence claim is extinguished pursuant to the gist of the action doctrine and there is no express warranty claim for a subsequent purchaser.  Without the implied warranty claim, these remote purchasers are left with no recourse.

I send thanks to Attorney Joe Walsh of the Lansdale, PA law firm of Walsh Pancio for bringing this decision to my attention hot off the presses along with explaining the impact of the same in construction litigation matters.
Anyone wishing to review this case may click this LINK.

Another Trial Court Allows a Plaintiff To Consolidate Entirely Separate Accident Claims

In the case of Swalinski v. Forsythe, 2012-SU-1529-69 (York Co. Aug. 5, 2014), the York County Court of Common Pleas followed the prior decision of Judge Wettick in Jackson v. Drew and allowed a Plaintiff to pursue personal injury claims arising out of two separate motor vehicle accidents in a consolidated fashion.

The accidents involved in Swalinski occurred in the same county about two weeks apart and involved the similar injuries.   The Swalinski court granted a Plaintiff's motion to consolidate two cases involving the same injured Plaintiff against two different tortfeasors. 

Anyone wishing to view this Swalinski decision may click this LINK.

The prevailing Plaintiff's attorney in this matter was Abbie Trone, Esq., of the Harrisburg law firm of Schmidt Kramer.  I send thanks to Attorney Scott Cooper of the same firm for bringing this decision to my attention.

To view the Tort Talk blog post on Judge Wettick's decision on the same issue in the case of Jackson v. Drew along with a link to that case, please click HERE.

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Sunday, August 17, 2014

NOTE TO THOSE SIGNED UP FOR TORT TALK EXPO 2014: New Location for Tort Talk Expo At the Mohegan Sun Casino Hotel

For those of you who have registered for the Friday September 26th Tort Talk Expo 2014 CLE Seminar & Cocktail Reception, please note that the seminar will NOT be in the same downstairs area ballroom as in past years.

Rather, the Seminar will take place in a ballroom known as "THE CONVENTION CENTER" which is located within the NEW  MOHEGAN SUN HOTEL AREA which is adjacent to the casino.

Self-parking is available by turning right at the third Stop sign once you enter the casino complex.  You may also reach valet parking by continuing down that same road further on after you have made that right hand turn at the third Stop Sign.

Also, weather permitting, the Cocktail Reception following the Seminar will be held on an outdoor terrace complete with a fire pit.  If the weather does not permit an outside Cocktail Reception, the Reception will take place in Breakers, as usual.

Seats still remain -- please click HERE to register online or contact me at or 570-346-0745.

Friday, August 15, 2014

PLW Article Reports Limited Tort Lawsuits Are Down

Here is a LINK to a recent Pennsylvania Law Weekly article of note by reporter Max Mitchell on the recent trends relative to limited tort auto accident lawsuits in Pennsylvania.  As you will see, Mr. Mitchell contacted me as part of the story for my recent experiences in this area of the law.

If you are not able to access the article via the Link, please let me know ( and I will email you a copy.

Thursday, August 14, 2014

Third Circuit Court of Appeals Tackles Sacket Waiver of Stacking Issue

In its recent decision in the case of Seiple v. Progressive Northern Ins. Co., No. 13-3213 (3d Cir. June 12, 2014 Fisher, Van Antwerpen, and Tashima, J.)(Op. by Fisher, J.), the Third Circuit Court of Appeals addressed a waiver of stacking clause case under the Sackett anaylsis. 

Ultimately, the dismissal of the claims for stacking benefits by the lower court was affirmed despite the lack of a waiver in a case where the insured signed a waiver of stacking and the vehicle was added in this matter under an after-acquired vehicle endorsement.  

Anyone wishing to try to wrap their head around this obtuse issue may read the Seiple opinion HERE.

Source:  “Court Summaries” by Timothy L. Clawges in the Pennsylvania Bar News (July 21, 2014). 


Tuesday, August 12, 2014

First Party Auto Carriers Held to Have Duty to Reduce Medical Expenses Before Paying

In the notable Lawrence County Court of Common Pleas decision of Pavelko v. Unitrin Direct Auto Ins., No. 11190 of 2012 (C.P. Lawrence June 12, 2014 Cox, J.), Judge Craig Cox overruled a defendant first party auto insurance carrier's preliminary objections allowing an insured to proceed on a claim that the first party carrier's failure to pay reduced medical expense in accordance with Section 1797(a) of the Motor Vehicle Financial Responsibility Law resulted in a premature exhaustion of the insured's first party medical benefits.

The Lawrence County trial court ruled that first party carriers had a duty to follow the law and pay the properly reduced amounts.  In his decision, Judge Cox rejected the carrier's contention that this failure to re-price medical expenses did not amount to a valid cause of action.
Anyone wishing to review this first party decision may click HERE.
I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer for bringing this case to my attention.

Friday, August 8, 2014

Various Tort Talk Scorecards Recently Updated

I have updated the Post-Koken Scorecard, the Facebook Discovery Scorecard, and the Products Liability Restatement Scorecard which can all be found on the Tort Talk webpage and accessed for free any time.

If interested, just go to Tort Talk at and scroll down the right hand column and click on the dates noted under each Scorecard listing to be taken to that particular Scorecard.

September 26, 2014
(3 Substantive, 1 Ethics Credit)

The recent updates on these Scorecards will be covered at the upcoming September 26th Tort Talk Expo 2014, with CLE Seminar and Cocktail Reception, at the Mohegan Sun Casino in Wilkes-Barre, PA.  Click HERE   for the Seminar Agenda and THIS REGISTRATION LINK to Register.  You may also register by emailing me and sending payment to my attention.  Thanks.