Friday, May 24, 2013
Third Circuit Addresses Appeal of Former Luzerne County Judge Mark A. Ciavarella, Jr.
According to a May 24, 2013 article entitled "Third Circuit Keeps Ciavarella Behind Bars" in The Legal Intelligencer by Saranac Hale Spencer, former Luzerne County Court of Common Pleas Judge Mark A. Ciavarella Jr.’s appeal of his 28-year sentence for his involvement in the “kids-for-cash” scandal has been almost entirely rejected by the U.S. Court of Appeals for the Third Circuit.
Thursday, May 23, 2013
Judge Minora of Lackawanna County Addresses Standard to Join Additional Defendant
In his recent decision in the case of Montana v. Oakford Wood Home Owners Assn., No. 2012-CV-236 (C.P. Lacka. Co. 2013 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas granted an original Defendant's Motion for Leave to Join an Additional Defendant. The court's opinion provides a thorough overview of the current status of the law on this particular issue.
The court granted the Defendant's Motion, in part, because there was no potential risk for delay attributable to newly joined parties. The court also found that the Additional Defendant failed to provide any grounds for disallowing its late joinder under Rule 2253(b).
The Court employed the current version of Pa. R.C.P. 2253, which has changed the burden applicable to a defendant who seeks to join an additional defendant beyond the sixty day period prescribed.
The current version of Rule 2253, effective January 6, 2005, deletes the “upon cause shown” requirement, and subsection (b) now merely entitles the plaintiff to object to the belated joinder on the basis that the moving party has failed to demonstrate a “reasonable justification for its delay in commencing joinder proceedings.” Any other party, including the party who is to be joined as an additional defendant, may object only on the grounds of prejudice.
Applying these rules to the circumstances before the court in the Montana case led Judge Minora to grant the motion and allow for the joinder of an additional defendant.
Anyone wishing to review this decision of Judge Minora in the Montana case may click this LINK.
For a Tort Talk synopsis of another decision on this same issue handed down by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas back in 2011 in the case of Chelland v. Siegfried v. Solomon, click HERE.
The court granted the Defendant's Motion, in part, because there was no potential risk for delay attributable to newly joined parties. The court also found that the Additional Defendant failed to provide any grounds for disallowing its late joinder under Rule 2253(b).
The Court employed the current version of Pa. R.C.P. 2253, which has changed the burden applicable to a defendant who seeks to join an additional defendant beyond the sixty day period prescribed.
The current version of Rule 2253, effective January 6, 2005, deletes the “upon cause shown” requirement, and subsection (b) now merely entitles the plaintiff to object to the belated joinder on the basis that the moving party has failed to demonstrate a “reasonable justification for its delay in commencing joinder proceedings.” Any other party, including the party who is to be joined as an additional defendant, may object only on the grounds of prejudice.
Applying these rules to the circumstances before the court in the Montana case led Judge Minora to grant the motion and allow for the joinder of an additional defendant.
Anyone wishing to review this decision of Judge Minora in the Montana case may click this LINK.
For a Tort Talk synopsis of another decision on this same issue handed down by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas back in 2011 in the case of Chelland v. Siegfried v. Solomon, click HERE.
Two More Decisions Addressing Whether Medicare Lien Issues Can Hold Up a Settlement
I recently came across additional decisions in which a trial court addressed the issue of Medicare lien payments possibly holding up the resolution of a civil litigation settlement:
In his 2011 decision in the case of Mackrides v. Marshalls, Marmaxx Operating Corp., No. 11-Civil-6540 (E.D. Pa. April 23, 2013, Joyner, J.), Judge J. Curtis Joyner addressed Medicare issues with regards to a settlement of a slip and fall personal injury suit.
In this decision, the Court addressed a Plaintiff’s Motion to Enforce a Settlement. The Court ruled that the motion would be denied.
In the Opinion, the Court noted that, although the Defendant’s failure to tender a proposed Release or settlement, was dilatory, unreasonable, and bordering on being deemed worthy of sanctions, the motion to enforce the settlement was denied where questions about the settlement terms remained unresolved, including questions pertaining to whether the settlement figure included funds to reimburse Medicare, whether Medicare made payments subject to reimbursement, and whether Medicare had waived any right to reimbursement.
Anyone wishing to review this Mackrides Opinion may click this LINK.
Click HERE to view other Tort Talk posts on Medicare issues, including with respect to settlements of personal injury matters.
In his 2011 decision in the case of Mackrides v. Marshalls, Marmaxx Operating Corp., No. 11-Civil-6540 (E.D. Pa. April 23, 2013, Joyner, J.), Judge J. Curtis Joyner addressed Medicare issues with regards to a settlement of a slip and fall personal injury suit.
In this decision, the Court addressed a Plaintiff’s Motion to Enforce a Settlement. The Court ruled that the motion would be denied.
In the Opinion, the Court noted that, although the Defendant’s failure to tender a proposed Release or settlement, was dilatory, unreasonable, and bordering on being deemed worthy of sanctions, the motion to enforce the settlement was denied where questions about the settlement terms remained unresolved, including questions pertaining to whether the settlement figure included funds to reimburse Medicare, whether Medicare made payments subject to reimbursement, and whether Medicare had waived any right to reimbursement.
Anyone wishing to review this Mackrides Opinion may click this LINK.
The older Northampton July 12, 2011 Dally, J.), is
another example of a trial court decision holding that a settlement of a
personal injury may not be conditioned upon receipt of a final conditional
payment letter from Medicare. That Court
relied upon the Pennsylvania Superior Court decision in Zaleppa v. Siewel, 9 A.3d 632 (Pa.
The Furman decision can be viewed HERE.
Source: “Court Summaries,” Pennsylvania , 2013 ) by Timothy L. Clawges.
Click HERE to view other Tort Talk posts on Medicare issues, including with respect to settlements of personal injury matters.
Wednesday, May 22, 2013
District Magistrate Judge James Gibbons Wins Both Primaries for Lackawanna County Court of Common Pleas Judge
District Magisterial Judge James Gibbons, 55, prevailed in both the Democratic and Republican primary elections for the open Lackawanna County Court of Common Pleas Judge position.
The spot on the bench opened up when Judge Chester Harhut took senior status and then moved to part-time status upon reaching the mandatory retirement age.
Judge Gibbons is a University of Scranton graduate and a Seton Hall Law School graduate.
Over the course of his career, he has worked in the U.S. Attorney's Office before going into practice. More recently, he gained greater prominence as a local district magistrate judge and, in private practice, as a Mediator/Arbitrator for the resolution of a wide variety of civil litigation matters. He also previously served on a statewide commission to study and offer recommendations on the Luzerne County juvenile justice system issues that existed a few years back.
District Magistrate Gibbons now moves ahead to the general election in November with no opposition for the position.
The spot on the bench opened up when Judge Chester Harhut took senior status and then moved to part-time status upon reaching the mandatory retirement age.
 |
| District Magistrate James Gibbons |
Over the course of his career, he has worked in the U.S. Attorney's Office before going into practice. More recently, he gained greater prominence as a local district magistrate judge and, in private practice, as a Mediator/Arbitrator for the resolution of a wide variety of civil litigation matters. He also previously served on a statewide commission to study and offer recommendations on the Luzerne County juvenile justice system issues that existed a few years back.
District Magistrate Gibbons now moves ahead to the general election in November with no opposition for the position.
Monday, May 20, 2013
Novel Facebook Discovery Order Out of Lancaster County
In a recent Lancaster County Court of Common Pleas case of Perrone v. Lancaster Regional Medical Center, No. CI-11-14933 (C.P. Lanc. Co. 2013 Cullen, J.), Judge James P. Cullen crafted a novel method of handling a Facebook Discovery dispute in a civil litigation personal injury case.
This case involved an alleged slip and fall in the defendant hospital allegedly resulting in significant injuries to the Plaintiff. According to a May 20, 2013 Legal Intelligencer article entitled "Judge Orders Parties to Hire Neutral Expert to Probe Facebook," by Ben Present, at the center of this discovery dispute was photographs of the Plaintiff playing in the snow along with a video of the Plaintiff sledding down a hill and tumbling off the sled at the bottom of the hill all the while laughing.
While the defense contended that these photos and the video post-dated the subject accident, the Plaintiff asserted that these items pre-dated the accident.
Judge Cullen granted limited discovery. In his two-page order, Judge Cullen ordered the parties to hire a "neutral forensic computer expert" to analyze the Plaintiff's private Facebook page during the 17-day window in which the Defendants claim the photographs and video arose.
In its Order, the court directed that the neutral expert was to identify all photographs of snow and references to snow on Plaintiff's Facebook page, along with any photos depicting the Plaintiff participating in physical activity during the specified time frame.
The parties were required by the Order to agree upon an expert within seven days of the court's Order. The court also mandated that the discovery be completed within 60 days.
Under the Order, the court directed that the expert was to retain the Plaintiff's Facebook username and password and then download the contents of the Plaintiff's Facebook to a hard drive on which data for the time period at issue was to be isolated.
The cost of this process, including the expert's fees, was to be covered by the Defendants, Lancaster Regional Medical Center and Hospital Housekeeping Systems, as the proponent of the discovery request.
As noted by Ben Present in his article in The Legal Intelligencer this "case appears to be the first matter in which a Pennsylvania judge has ordered the hiring of such an expert to review a party's Facebook information."
Anyone desiring a copy of this decision may click this LINK.
I send thanks to Ben Present of The Legal Intelligencer/Pennsylvania Law Weekly for providing me with a copy of this decision.
I have updated the Tort Talk Facebook Discovery Scorecard with this decision. You can always access the Facebook Discovery Scorecard by going to Tort Talk at www.TortTalk.com and scrolling down the right hand column and clicking on the date noted under "Facebook Discovery Scorecard." Once on that page, you can access the actual Opinions and Orders by clicking on the case names. Here's a quick LINK to the Tort Talk Facebook Discovery Scorecard.
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