Thursday, April 28, 2016

Summary Judgment Granted Where Plaintiff Did Not Identify Correct Driver in Car Accident Suit

In the Delaware County Court of Common Please case of Moore v. Gilligan, PICS Case No. 16-0357 (C.P. Del. Co. Dec. 9, 2015  Green, J.), the court approved summary judgment in favor of a Defendant in a case where the Plaintiff did not identify the correct Defendant driver involved in the accident.  

The court in this decision ruled that the official note to Rule 1029(c) did not require a Defendant to specifically deny that he was the driver involved in the subject accident.  The Defendant had denied the Plaintiff’s allegation that he was the driver by simply indicating that he was without information or knowledge to form a belief as to the truth of the allegations.  The Defendant otherwise specifically denied that the answering Defendant was in anyway negligent.   Moreover, the court found no evidence that the named Defendant concealed the driver’s identity.  

The court granted summary judgment in favor of the Defendant even though the motion was filed prior to the close of discovery.  

In his Answers to the discovery, the Defendant asserted that his niece was the driver involved and that he had no personal involvement in the accident.  

Anyone wishing to review a copy of this case may contact the Pennsylvania Law Weekly’s Instant Case Service by calling 1-800-276-7427 and provide the above PICS Case No. and pay a small fee.  


Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (March 20, 2016).


Wednesday, April 27, 2016

Federal Court Rules that Tincher Decision Did Not Change Daubert Test for Admissibility of Expert Testimony

In a recent decision out of the Federal Eastern District Court of Pennsylvania in the case of DeJesus v. Knight Industries &Associates, No. 10-07434 (E.D. Pa. April 18, 2016 Pappert, J.), the court granted a Daubert motion pertaining to a Plaintiff’s expert in a products liability case involving a Plaintiff who was allegedly injured as a result of an allegedly defective lift table in a Harley Davidson manufacturing plant.  The allegedly defective lift table was manufactured by Knight Industries.  

In its decision, the court noted that the Pennsylvania Supreme Court case of Tincher altered Pennsylvania law in products liability cases by returning the “unreasonably dangerous” question to the jury.  The court also noted that Tincher changed Pennsylvania law by rejecting the per se  elimination of negligence concepts from strict liability law.  To the contrary, the court stated that both prongs of Tincher’s composite risk/utility and consumer expectation tests are ordinarily to be decided by the jury.  

The Tincher decision was also found to have rejected the theory of defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders the product unsafe for its intended use.  

However, the federal district court stated that the Tincher decision did not affect its prior exclusion of the Plaintiff’s expert testimony in this matter because the Tincher decision did not affect the law pertaining to the Daubert analysis and that law’s prohibition of speculative and unreliable expert testimony.  

Anyone wishing to review this decision online may click this LINK.

I send thanks to Attorney James Beck of the Philadelphia office of Reid Smith and the writer of the notable legal blog, The Drug and Device Law Blog.    


Judge Williamson of Monroe County Denies Summary Judgment in Slip and Fall Case

In the case of Pagano v. RP Hoffman Excavating, PICS Case No. 16-0358 (C.P. Monroe Co. Dec. 21, 2015 Williamson, J.), the court denied a Motion for Summary Judgment in a slip and fall case involving ice in a parking lot.  

The court found that questions of fact regarding the Defendant’s duty to plow under its snow removal contract rendered summary judgment inappropriate.

The court also found that there were questions of fact as to whether the ice in the parking lot had accumulated from natural causes such that summary judgment was precluded under the Hills and Ridges doctrine.   In this regard, the court noted, in part, that there did not appear to be generally icy conditions in the area.  The Hills and Ridges doctrine was noted not to apply to issues involving localized ice because it would be comparatively easy for a property owner to alleviate a localized ice condition.  

Anyone wishing to review a copy of this case may contact the Pennsylvania Law Weekly’s Instant Case Service by calling 1-800-276-7427 and provide the above PICS Case No. and pay a small fee.  

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (March 20, 2016).



Monday, April 25, 2016

New Susquehanna County Court of Common Pleas Local Rule of Note

It appears that the days of having to drive to Montrose, PA to file a discovery motion in the Susquehanna County Court of Common Pleas are a thing of the past.

Click HERE to view the new local rules issued by the court effective March 16, 2016 in this regard.

REMEMBER TO SAY THANKS: Administrative Professionals Day is April 27th


Thursday, April 21, 2016

Judge Zulick of Monroe County Addresses Service of Process Issues

In the service of process case of Ramos v. Rogosich, PICS Case No. 16-0363 (C.P. Monroe Co. Dec. 10, 2015 Zulick, J.), the court denied a Defendant’s Preliminary Objections and found that the Plaintiff had made a good faith effort to obtain service on the Defendant in a slip and fall case.

According to the Opinion, the Plaintiff was allegedly injured in a slip and fall on October 13, 2009. 

The Plaintiffs filed a Writ of Summons on October 5, 2011, which was shortly before the expiration of the statute of limitations.  The Plaintiffs attempted to serve the Defendant through the Sheriff’s office but was unsuccessful.  The Plaintiffs asserted that the address they provided to the Sheriff was the same address that the Plaintiffs used to mail rent checks to the Defendants during their tenancy on the premise. 

Several months later, the Plaintiff reissued the Writ on March 21, 2012.   No Return of Service of the Writ was filed by the Plaintiffs until the Plaintiff’s attorney filed an Affidavit of Service on June 22, 2015, which included a return receipt signed by the Defendant dated March 23, 2012, which was two (2) days after the Writ was reissued.    

The court found that the Plaintiffs made valid investigations in an effort to locate the Defendants and, as such, a good faith effort was found and the Preliminary Objections were denied.  

Anyone wishing to review a copy of this decision may contact me at

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (March 20, 2016)

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Tuesday, April 19, 2016

Western Federal District Court Reviews Whether UIM Carrier Allowed an Offset on Wage Loss Claim by Social Security Benefits Paid to Plaintiff

In a recent decision out of the U.S. District Court for the Western District of Pennsylvania, the court denied a UIM carrier’s Motion for Partial Summary Judgment in a breach of contract and bad faith case in which the carrier was seeking an offset under 75 Pa. C.S.A. §1722 of the Motor Vehicle Financial Responsibility Law for Social Security Disability benefits received by the Plaintiff. 

In the case of Smith v. Progressive Specialty Insurance, No. 2:15-CV-528 (W.D. Pa. Feb. 17, 2016 McVerry), the court rejected the UIM carrier’s “novel theory that, under Tannenbaum, any award to Plaintiff for lost wages must be reduced to the extent that she received Social Security disability benefits. 

The Smith v. Progressive case arose out of an incident during which a pedestrian Plaintiff was struck by a motorist in a supermarket parking lot.   The Plaintiff alleged serious injuries and an inability to work.  The Plaintiff applied for and received Social Security Disability Benefits that totaled $1,174.00 per month.  

With respect to this litigation, the Plaintiff brought an underinsured motorist claim against Progressive Insurance for damages, including lost wages.  

With its Motion for Partial Summary Judgment, Progressive argued that the Plaintiff was precluded from recovering UIM benefits for lost wages in the amount of the Social Security benefits that the Plaintiff was receiving.  The Plaintiff countered with an argument that the disability benefits were a collateral source that could not be utilized to reduce the UIM benefits that she was owed under the policy.  

In his decision, Judge McVerry reminded the reader that, in Tannenbaum v. Nationwide Ins., 992 A.2d 859 (Pa. 2010), Pennsylvania Supreme Court ruled that income loss benefits are subject to an offset if they fall under §1722’s definition of “‘any program, group contract or any other arrangement for payment of benefits.’”   Judge McVerry noted that, in Tannenbaum, the court was faced with the issue of whether Social Security Disability benefits qualify as a group, program, or arrangement under §1722.  

Judge McVerry noted that, in the Tannenbaum decision, the Pennsylvania Supreme Court reviewed the previous Pennsylvania Superior Court decision in the case of Browne v. Nationwide Mutual Insurance, 674 A.2d 1127 (Pa. Super. 1996) in which that court held that Social Security Disability Benefits did not fall within the purview of §1720 and 1722 of the Motor Vehicle Financial Responsibility Law because such Social Security Disability Benefits were never subject to subrogation.   It was also noted that the Browne court explained that the Pennsylvania legislature could have specifically named disability benefits as falling within the §1722 preclusion.  McVerry noted that, instead, as the Superior Court indicated in Browne, §1722 was designed to refer only to benefits that are specifically recoverable as first-party benefits under the MVFRL.  

Judge McVerry went on to note in this Smith v. Progressive case that Tannenbaum did not expressly diavow this rationale.   Moreover, Judge McVerry indicated that the Tannenbaum court otherwise disapproved of the Browne court’s holding that, where benefits were paid for or earned by an insured through his employment, there should be no offset.

Based upon this review of the law, Judge McVerry denied the UIM carrier’s Motion for Partial Summary Judgment and rejected the UIM carrier’s novel theory that, under Tannenbaum, any award to the Plaintiff for lost wages must be reduced to the extent that a Plaintiff received Social Security Disability Benefits. 

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

Source:  Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog which can be viewed HERE.