Tuesday, August 9, 2022

Pennsylvania Superior Court Finds that Rejection of UIM Coverage At Inception of Policy Carries Through To Time of Accident


In the case of Koch v. Progressive Direct Ins. Co., No. 1302 MDA 2021 (Pa. Super. Aug. 4, 2022 Bender, P.J.E., Stabile, J., and Stevens, P.J.E.), the Pennsylvania Superior Court reversed a trial court’s Order which both denied the carrier’s Motion for Summary Judgment and granted a Plaintiff’s Motion for Summary Judgment on issues regarding the availability of UIM benefits under the circumstances presented.

According to the Opinion, this matter arose out of a motor vehicle accident during which the Plaintiffs were located on a motorcycle. The third party tortfeasor paid the available liability limits of $15,000.00 to each of the two Plaintiffs. 

At the time of the accident, the Plaintiff’s motorcycle had been covered by a policy which provided bodily injury coverage of $100,000.00 each person and $300,000.00 each accident.  However, uninsured and underinsured motorist coverage had previously been rejected on the policy.

The Plaintiffs presented at demand to the carrier for bodily injury and UIM benefits. Progressive refused to pay the requested UIM benefits based upon its assertion that the Plaintiff had signed a valid waiver form rejecting UIM coverage.

When the carrier denied coverage, the Plaintiff filed a breach of contract action in which action it was requested that the trial court make a determination as to the availability of the UIM coverage.

By way of background, the carrier asserted that the Plaintiff originally rejected UIM coverage at the inception of the policy.  At the time the policy was sold, the carrier was then identified as Progressive Halcyon Insurance Company.  Although Progressive Halcyon changed its name to Progressive Direct thereafter, the Plaintiff maintained his policy with this company for various motorcycles. 

Progressive asserted that the Plaintiff’s rejection of UIM coverage at the inception of the policy remained effective and carried forward through the addition and deletion of different motorcycles to the policy as the Plaintiff never affirmatively changed this designation of rejecting UIM coverage.

The Plaintiff presented evidence of a telephone conversation he had with a representative of Progressive Direct about nine months before the accident during which the Plaintiff sought out information on purchasing additional coverage for his motorcycle. However, during that phone conversation only uninsured motorist coverage was discussed and not underinsured motorist coverage. At the end of the phone call, the Plaintiff added uninsured motorist coverage to his motorcycle policy.

At the trial court level, the trial court found that the Progressive representative had misled the Plaintiff during this phone call and created and incongruous uninsured motorist coverage and underinsured motorist coverage selection process when the representative discussed uninsured protection but failed to advise the Plaintiff of the option of underinsured motorist coverage in response to the Plaintiff’s inquiry about purchasing additional coverage.  As such, the trial court concluded that the Plaintiff had not made a “knowing waiver” of UIM coverage. The trial court therefore found that the rejection of UIM form that the Plaintiff had signed years before during the inception of the policy was void under the Motor Vehicle Financial Responsibility Law. As such, the trial court had determined that there was available UIM coverage under the policy that was in place at the time of the accident.

As noted, the Pennsylvania Superior Court reversed on appeal.

On appeal, with regards to the allegation that the Plaintiff was misled, the appellate court noted that the Plaintiff’s Complaint did not seek to find the carrier liable on a tort theory of misrepresentation, but rather was a Complaint based on a claim of breach of contract.

Moreover, the Plaintiff did not allege that the Progressive representative was negligent or had established a fiduciary relationship with the Plaintiff during the telephone call regarding possible increased insurance coverages. As such, the appellate court limited its review as to whether summary judgment was appropriate in the context of a breach of contract claim.

The Superior Court reviewed §1731 of the Motor Vehicle Financial Responsibility Law, which requires carriers to provide the insured with specific information as to the availability of uninsured and underinsured motorist coverage.  That statute also mandates that a rejection of uninsured and/or underinsured motorist coverage must be confirmed in writing with certain stated language in prominent type and location.  Section 1731 requires carriers to secure this written waiver of coverage in order to confirm a knowing and voluntary rejection of each type of coverage by the insured.

Here, in this case, the appellate court noted that the carrier had produced a valid, signed rejection form from the Plaintiff that complied with §1731. The court noted that the record confirmed that, although the carrier changed its name over the years, that name change did not result in the creation of a new company. It was also noted that the Plaintiff’s policy remained the same throughout the years.

It was also emphasized at the appellate level that the carrier had presented evidence that it had consistently sent the Plaintiff policy renewals which repeatedly advised the Plaintiff that the Plaintiff had rejected UIM coverage.

The Superior Court noted that, in interpreting §1731, the appellate courts of Pennsylvania have held that an insured’s affirmative decision to waive UIM coverage is presumed to be in effect throughout the lifetime of that policy until that decision on coverage is “affirmatively changed” by the insured. See Op. at 13.

The appellate court also emphasized that the language of §1731 specifically provides that any person who completes a valid waiver form rejecting uninsured or underinsured coverage under §1731(b)-(c) is “precluded from claiming liability of any person based upon inadequate information.” Id

Furthermore, the Court also noted that, under §1791 of the Motor Vehicle Financial Responsibility Law, once the mandates of §1731 are met in terms of a valid waiver form, no other notice or rejection shall be required. Id.

In the end, the court found that, based upon Pennsylvania case law and the language of §1731, the UIM rejection forms signed by the Plaintiff at the beginning of the policy remained valid such that the Pennsylvania was not entitled to UIM coverage at the time of the accident. As such, the trial court’s decision was reversed.

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


I send thanks to Attorney David R. Friedman of the King of Prussia office of the Forry Ullman law firm for bringing this case to my attention.

Source of image: Photo by Andrea Piacquadio on www.pexels.com.

Retained Control Theory Used By Court to Deny Landowner's Motion For Summary Judgment in Premises Liability Case


In the case of Miller v. Kinley, No. CV-20-1214 (C.P. Lyc. Co. May 5, 2022 Tira, J.), the court denied a Motion for Summary Judgment filed by Defendant landowners in the case in which a Plaintiff who was hired to cut down a large tree on the property was injured in the process.

According to the Opinion, the Plaintiff alleged, and offered proof, that the Defendant landowners were present at the time of the incident and that they directed the Plaintiff on the manner in which to cut the tree. The Defendants also specifically indicated the area where the tree was to be dropped. It was therefore alleged by the Plaintiffs that the Defendant landowners had retained control of all, or at least, a portion, of the work that the Defendants had requested the Plaintiff to perform.

In his Opinion, Judge Tira referred to the Retained Control Theory found under the Restatement (Second) of Torts §414 to rule that the evidence raised issues of fact that allow the Plaintiff to overcome the Defendant’s Motion for Summary Judgment on the liability issues presented.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 6, 2022).

Source of image:  Photo by Jacky on www.pexels.com.

Monday, August 8, 2022

ARTICLE: Dicta, Dicta, Dicta: Innocent Victim Plaintiffs and the Fair Share Act

 This article of mine was published in two parts in the Pennsylvania Law Weekly in July and August of 2022 and is republished here with permission:



Dicta, Dicta, Dicta: 
Innocent Victim Plaintiffs and the Fair Share Act 




By Daniel E. Cummins | July 21, 2022

Daniel E. Cummins, Clarks Summit firm Cummins Law. Courtesy photo


Part One of the Article (published July 21, 2022)

Since the effective date of the Fair Share Act over a decade ago, the act has been applied in Pennsylvania without much controversy. Then, in dicta found in the Pennsylvania Superior Court’s decision from last year in the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), that court raised, on a seemingly sua sponte basis, the proposition that the Fair Share Act should not apply in cases involving innocent victim plaintiffs.

Examples of cases where a plaintiff may be an innocent victim include cases where a plaintiff is a guest passenger in a vehicle involved in an accident, or cases where a plaintiff struck while walking in the crosswalk with the pedestrian light in his favor, or a in claims involving plaintiffs who are the victims of negligent medical care while under anesthesia. As such, this dicta could come into play in a number of scenarios going forward.

While in English Literature, as per poet Gertrude Stein, “a rose is a rose is a rose,” in the law, at least up until recently, dicta is dicta is dicta. It seems that the unfortunate and troublesome liberalization of the meaning and scope of previously concrete terms and tenets that is becoming more and more common in society in this day and age is spilling over into the jurisprudence of Pennsylvania law, including with regards to the concept of dicta.

In this regard, the notion that the Fair Share Act does not apply when an injured party plaintiff is an innocent victim of the negligence of another seems to be gaining steam in recent several state and federal court decisions despite the fact that this notion is based upon dicta initially espoused in the Spencer decision. More specifically, certain court decisions referencing the Spencer decision have described the Superior Court’s review of the issue in Spencer as something other than dicta, with some of those courts even going so far as to describe that dicta as amounting to a “holding” on the issue of whether the Fair Share Act applies to innocent plaintiffs. This is made more troublesome by the possibility that the dicta in question from the Spencer case was wrongly decided.

The Fair Share Act

Under the “old” rule of joint and several liability that existed before the 2011 effective date of the current Fair Share Act, if any defendant was found to be even only 1% responsible for causing an accident, that defendant could be compelled to pay the entire verdict (and to, thereafter, seek a reimbursement of its overpayment from any other responsible co-defendant). This rule of law applied regardless of whether a plaintiff was an innocent victim or not.

Under the Fair Share Act, found under the amended 42 Pa.C.S.A. Section 7102, it became Pennsylvania law in 2011 that each defendant would instead only be responsible to pay their “fair share,” that is, the percentage of the verdict that a jury had assessed to that defendant.

There were specific exceptions written into the law by the General Assembly. If any one defendant was found to be 60% or more responsible for the happening of an accident, then that defendant would be responsible to pay the entire verdict (and to, thereafter, be able seek a reimbursement of its overpayment from any other responsible co-defendant).

There are also other express exceptions written into the Fair Share Act by the legislature as well, including an exception in cases involving dram shop claims, to name another one.

‘Spencer v. Johnson’

From 2011 forward, the Fair Share Act was applied for a decade without much controversy. That all changed with the Pennsylvania Superior Court’s decision in the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021). In Spencer, an innocent plaintiff pedestrian alleged personal injuries as a result of being struck by a vehicle while the plaintiff was crossing the street within a crosswalk. The case involved three defendants.

The issue on appeal in this case focused on the extent to which a plaintiff could request that the percentages of different defendants could be added together, under theories of vicarious liability, in order that a plaintiff may come up with a combined amount of a 60% percentage of liability that could thereby allow a plaintiff to potentially be in a position to compel a deep pocket defendant to pay the entire verdict under the 60% exception found under the Fair Share Act.

Over the first approximately 26 pages of the Superior Court’s opinion in Spencer, the court accepted the plaintiff’s argument that the employee defendant’s negligence should be imputed to the defendant employer’s negligence because the defendant employee was acting within the scope and course of her employment with the employer at the time of the accident. The Superior Court reversed and remanded the case to the trial court for further proceedings with regard to a molding of the verdict in terms of the percentages of responsibility. The above decision represented the holding of the Spencer court in this case. One would think that, with the issue before the court having been decided, the court’s opinion would end at that point.

But the Pennsylvania Superior Court in Spencer was apparently not finished with its opinion in the case before it. Rather, on a seemingly sua sponte basis, the appellate court went on to note, “assuming arguendo,” that is, assuming for the sake of argument, that a different set of hypothetical facts applied, the court would have gone on to decide additional issues that were not then before the court. In other words, the court was offering up dicta.

More specifically, the court in Spencer raised the hypothetical of a different situation, that being of a defendant employer who was found by the jury not to be vicariously liable for the actions of its employee such that those defendants were instead required to be treated separately. The court in Spencer noted in this dicta, that, under that different scenario (which was not before that court), the Fair Share Act would not have applied because, according to the Spencer court, the Fair Share Act only applied to cases in which the plaintiff’s comparative negligence was an issue in the case, that is, cases where the plaintiff was assessed a percentage of responsibility for causing his own accident. Stated otherwise, in its sua sponte dicta, the court in Spencer stated that the Fair Share Act was not applicable in cases involving innocent plaintiffs.

Is the ‘Spencer’ Dicta Even Valid?

In addition to these additional superfluous statements by the court in Spencer amounting to dicta, questions also remain as to the validity of that court’s notion that the legislature intended that the Fair Share Act not apply to innocent plaintiffs. The Spencer court stated that, in its reading of the history and structure of the Fair Share Act, the court found “no indication that the legislature intended to make universal changes to the concept of joint and several liability” in cases involving innocent plaintiffs.

Yet, there can be no question that the legislature did make universal changes to the concept of joint and several liability with the passage of the Fair Share Act. Prior to the act, any defendant found to be 1% responsible for a plaintiff’s injuries, could be made to pay the entire verdict. After the passage of the Fair Share Act, each defendant, unless they were found to be 60% or more liable, would only have to pay their percentage share of the verdict. The old rule of liability was turned upside down and eradicated across the board by the new Fair Share Act.

Why would the legislature pass a “Fair Share” Act to apply to personal injury matters but still intend to require a defendant found only 1% liable to be unfairly responsible to pay the entire verdict simply because a plaintiff was not found to be negligent?

Also, as noted, the General Assembly wrote several express exceptions into the actual wording of the Fair Share Act. It therefore stands to reason that, if the legislature wanted to carve out another exception applicable to cases involving innocent plaintiffs, the General Assembly would have expressly written such an exception into the Fair Share Act to join the other exception already contained in the act.

The rhetorical question becomes, if the legislature did not expressly write such an exception into the act, is it the place of the courts to do so?

In part two of this article, I will discuss the loose language of dicta and whether change is on the horizon.



Part Two of the Article (published August 4, 2022)


As discussed in part one of this article, since the effective date of the Fair Share Act over a decade ago, the act has been applied in Pennsylvania without much controversy. Then, in dicta found in the Pennsylvania Superior Court’s decision from last year in the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), that court raised, on a seemingly sua sponte basis, the proposition that the Fair Share Act should not apply in cases involving innocent victim plaintiffs.

In this regard, the notion that the Fair Share Act does not apply when an injured party plaintiff is an innocent victim of the negligence of another seems to be gaining steam in recent several state and federal court decisions despite the fact that this notion is based upon dicta initially espoused in the Spencer decision.

In part two of this article, I will discuss the loose language of dicta and whether change is on the horizon.

Loose Language Morphing Dicta Into a ‘Holding’?

Despite the questionable validity of the dicta of the Spencer v. Johnson case in this regard, judges in more recent decisions have referred to the dicta found in Spencer regarding the alleged inapplicability of the Fair Share Act to cases involving innocent plaintiffs as a “holding” of the Spencer court.

In the case of Snyder v. Hunt, 268 A.3d 416 (Table)(Pa.Super. 2021), an unpublished decision, a different panel of the Pennsylvania Superior Court than that in the Spencer case addressed issues raised on appeal from a nonsuit entered in favor of the defendants in a trip-and-fall case.

Of note, on appeal, the Pennsylvania Superior Court remanded the case back down to the trial court for further trial proceedings against certain defendants, some of whom had not appeared for the first trial. With regards to those defendants, the appellate court noted that, under Spencer, since those defendants had not alleged, or offered proof, as to any negligence on the part of the plaintiff, “the Fair Share Act, 42 Pa.C.S.A. Section 7102, [did] not shield them from the common law of joint and several liability under Spencer.”

In this regard, the court in Snyder specifically cited to the Spencer decision and, in a parenthetical attached to that citation, described the Spencer decision as “holding that ‘there is no indication the legislature intended to make universal changes to the concept of joint and several liability outside of cases where a plaintiff has been found to be contributorily negligent.’”

It may never be known if the use of the term “holding” to describe this portion of the Spencer decision was intentional by the Pennsylvania Superior Court in Snyder or, rather, a simple, casual reference to the decision for purposes of including a parenthetical in the citation. Regardless, members of the plaintiff’s bar are sure to continue to pounce on the same in an effort to turn the dicta of the Spencer decision into precedential law going forward.

The possible migration of the dicta at issue in the Spencer case towards a precedential holding has also been exhibited in the recent federal court case of Anderson v. Motorists Mutual Insurance, No. 2:21-CV-00493-CCW (W.D. Pa. June 22, 2022 Wiegand, J.).

A Bold Prediction Based on Dicta

In the Anderson case, the court addressed the issue raised as to the amount of the credit to which the UIM carrier was entitled in a personal injury matter. As part of the analysis the court addressed novel arguments raised under the Fair Share Act.

After the accident, the plaintiffs sued the third party tortfeasor and settled those claims. The plaintiffs then filed a claim for UIM benefits with Motorists Mutual.

Motorists Mutual, as the UIM carrier, denied the plaintiff’s claim on the basis that the value of the claim did not exceed the combined $5.1 million liability limits of the various third party tortfeasors.

In this Anderson case, the plaintiff was seeking a partial summary judgment under an argument that, unless Motorists Mutual could prove that the trucking defendants’ percentage of fault equaled or exceeded 60%, Motorists Mutual should only be entitled to a credit equal only to the amount the plaintiff was legally entitled to recover from the joint tortfeasors, that is, the sum of the lesser amounts actually paid in settlement on the third party side by the operator of the vehicle in which the plaintiff is located and the trucking defendants. The plaintiff asserted that, if the UIM carrier was unable to establish this proof, then the UIM carrier should only be entitled to a credit of the amount paid pursuant to the settlements because the plaintiff would have been unable to recover the full amount of damages from the trucking defendants because the 60% exception to the Pennsylvania Fair Share Act was not met.

The court applied Pennsylvania law and noted that there was no controlling Pennsylvania Supreme Court precedent on the issue of the enforcement of exhaustion clauses concerning UIM benefits. However, it was noted that the Pennsylvania Superior Court had decided a number of cases in this regard, including the case of Boyle v. Erie in which the Superior Court held that a UIM carrier was entitled to the full amount of any liability limits that were available on the third party side.

The plaintiff attempted to assert that the Boyle decision was inapplicable, in part, due to the underlying policy concerns and Boyle being no longer applicable due to the passage of the Pennsylvania Fair Share Act.

The court in this Anderson case held that it did not need to decide whether the Pennsylvania Fair Share Act altered Boyle’s holding. In dicta, the court in Anderson more specifically stated that, even assuming that the enactment of the Pennsylvania Fair Share Act served to alter Boyle’s holding, the plaintiff’s argument still failed because “it is not clear that the Pennsylvania Fair Share Act applies where the plaintiff’s negligence is not in question, as is the case here.”

In this regard, the court in this matter pointed to the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021). The court in this Anderson case stated that, in the Spencer case, the Pennsylvania Superior Court had found, “as an alternative holding,” that for the “Fair Share Act to apply, the plaintiff’s negligence must be an issue in the case.”

The court in Anderson additionally pointed to the above-referenced case of Snyder v. Hunt in support of this proposition as well.

Notably, the court in this Anderson case boldly, and perhaps incorrectly, predicted that, if faced with this issue, “because the decedent’s negligence is not at issue in this case, the Pennsylvania Supreme Court would find that the Fair Share Act does not apply in cases such as this one, where the plaintiff’s negligence is not an issue, and, as a result, that the traditional principles of joint and several liability would control.”

Under this analysis, the court in Anderson held that it did not need to decide whether the Fair Share Act altered Boyle’s holding. The Anderson court went on to find that the language of the exhaustion clause in this case compelled the court to rule that the UIM carrier was indeed entitled to a credit for the full amount of the liability limits available in the underlying third party case.

Is Change on the Horizon, or a Correction?

As noted, the first decade of the life of the Fair Share Act was largely without controversy until the Pennsylvania Superior Court’s sua sponte dicta in the case of Spencer v. Johnson unfortunately came along.

It remains to be seen whether any future court, squarely faced with this issue, would ultimately validate the dicta of the Spencer court or would, instead, leave the legislating to the legislature and rule that, if the General Assembly intended that the Fair Share Act not apply to innocent plaintiffs, then such an exception would have been specifically written into the act.

In the meantime, in light of the controversy created by the dicta in the Spencer v. Johnson decision, litigants and the trial courts are now unfortunately left to struggle over the scope and ambit of the previously clear terms of the Fair Share Act until concrete appellate guidance is otherwise provided.


Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

Friday, August 5, 2022

Court Rules that Party Cannot Be Compelled To Produce That Which They Do Not Possess


In the case of Fost v. Kennedy, No. 5:21-CV-03262-JMG (E.D. Pa. July 11, 2022 Gallagher, J.), the court addressed various discovery issues in response to a Motion to Compel filed in a trucking accident case.

In its decision, the court ruled that a Plaintiff is entitled to timely answers to its punitive damages discovery.

However, the court also noted that a Defendant cannot be compelled to produce documents that do not exist.

The court otherwise found that the Plaintiff’s demand for hundreds of hours of videotape of the employee’s truck driving was denied as being disproportionate.

The court additionally found the Plaintiff’s request for the production of information regarding similar incidents for years predating the hiring of the employee that the Plaintiff’s claims were negligently hired was also disproportionate.

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


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

Wednesday, August 3, 2022

Summary Judgment Granted to Gym and Landlord in Slip and Fall Case


In the case of Rifkin v. Fitness International, LLC, No. 19-CV-5686 // 20-CV-4547 (E.D. Pa. June 15, 2022 Sitarski, J.), the court granted summary judgment in favor of the possessor of land in this slip and fall case.
According to the Opinion, the Plaintiff slipped and fell in the locker room of the gym.

The court found that, based upon the record developed during discovery, that the out-of-possession landlord did not retain control over the premises and/or the area where the Plaintiff fell.   

As such, the court found that the landlord-defendant was entitled to summary judgment.    

 Anyone wishing to review a copy of this decision may click this LINK.  Here is a LINK to the court's companion Order.


In a separate Opinion issued by the same court in the same case on the same date, the court granted summary judgment to the gym, which was the tenant-defendant, as well.

In that decision, the court initially noted that issues of fact on the issue of whether the Plaintiff had signed a waiver form when he joined the gym precluded the entry of summary judgment in favor of the gym in that regard.  

However, the court found that the tenant-defendant was entitled to summary judgment on other grounds.

In its decision, the court stated that, absent any evidence of prior similar incidents in the same location, a Plaintiff cannot establish actual notice on the part of the possessor of land in a slip and fall case.

The court additionally found that the Plaintiff failed in proving any constructive notice in this case where the Plaintiff did not know what caused him to fall, let alone how long any such condition was present.

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 the Reed Smith law firm for bringing this case to my attention.

Source of image: Photo by Ron Lach on www.pexels.com.

Summary Judgment Granted in Trip and Fall Case Due to Lack of Evidence of Actual or Constructive Knowledge


In the case of Hendershot v. Wal-Mart, Inc., No. 5:21-CV-02422-JMG (E.D. Pa. July 11, 2022 Gallagher, J.), the court granted summary judgment in favor of the Defendant in a slip and fall case.
According to the Opinion, the Plaintiff asserted that she tripped and fell on a rolled up mat in the entryway of the Wal-Mart store.  At her deposition the Plaintiff admitted that she could only speculate as to how the mat became in a rolled up state.  The Plaintiff also admitted that she could not testify as to how long the mat had been in that condition before she encountered it.   

The court noted that the record did not establish that the Defendant had any actual or constructive notice of any alleged condition that allegedly caused the Plaintiff to fall. Moreover, the court stated that there was no evidence presented by the Plaintiff that the Defendant was responsible for the alleged condition that allegedly caused the Plaintiff to fall.

The court additionally found that the lack of any evidence that the condition was a recurring one precluded any finding of actual notice on the part of the Defendant. 

It was also emphasized by the Court that the Plaintiff had not presented any evidence of the passage of time that was sufficient to support a claim of constructive notice on the part of the Defendant.

As such, summary judgment was granted in favor of the Defendant.

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 the Reed Smith law firm for bringing this case to my attention.

Monday, August 1, 2022

Opinions or Insults Cannot Support a Defamation Claim



In the case of Durando v. The Trustees of the U. of Penn., No. 21-756 (E.D. Pa. June 17, 2022 Beetlestone, J.), the court granted a Defendant’s Motion for Summary Judgment and dismissed a Plaintiff’s Amended Complaint in a defamation action.

The court ruled that the Plaintiff’s defamation claim failed where the alleged statements at issue constituted non-actionable opinion or hyperbolic insults. The court additionally noted that, based upon the record before the court, the Plaintiff could not prove a reputational injury or a financial loss.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 14, 2022).