Monday, March 20, 2017

Eastern District Federal Court Declines to Exercise Jurisdiction Over Sackett Issue That Is Currently Pending Before PA Supreme Court

In the case of Bransfield v. New Jersey Manufacturers Ins. Co., 2017 WL 714036 (E.D. Pa. 2/23/2017) (mem.), the Eastern Federal District Court declined to exercise jurisdiction over an unsettled Sackett-type issue and remanded the case back to state court for a decision.

In Bransfield, the Plaintiffs filed declaratory judgment action in state court asserting that the insurer owed stacked UIM coverage because when the insured/owner added a vehicle to her single-vehicle auto policy, her insurer was required to obtain new UIM coverage forms and new UIM stacking rejection forms.  According to the Opinion, the insured had rejected UM/UIM and stacking prior to the addition of the second vehicle.

The Plaintiff asserted that since the insurer did not secure new UIM coverage forms or new UIM stacking rejection forms, the Plaintiff should be entitled to stacked UIM coverage.

The Bransfield court declined to exercise jurisdiction after finding that, if it did, the court would need to make a threshold determination on an unsettled question of whether the MVFRL requires new UIM rejection forms when new vehicles are added to a policy. 

The court noted that it would have to predict whether stacked UIM is available pursuant to Sackett, which the court noted was an issue before the Pennsylvania Supreme Court in Toner v. The Travelers Home and Marine Ins. Co., 137 A.3d 583(Pa. Super. 2016), appeal granted No. 29 WAP 2016 (Pa. Sept. 8, 2016).  Part of the reason the Bransfield court declined to decide the issue was to avoid a scenario where its decision could end up conflicting with how the Pennsylvania Supreme Court may ultimately rule upon the issue in Toner.

Ultimately, the Branfield court denied the carrier’s request to reconsider the court’s prior Order remanding the matter back to state court.

Anyone wishing to review this unpublished memorandum opinion in Bransfield may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.

Friday, March 17, 2017

ARTICLE: A St. Patrick's Day Parade of Proverbs

Here's a "replay" of a previous article of mine in the spirit of St. Patrick's Day:


Daniel E. Cummins

Pennsylvania Law Weekly
March 10, 2008

With the St. Patrick’s Day celebration of all things Irish many famous Irish proverbs come to mind. As the Irish have noted, “Proverbs can not be contradicted.” Applying Irish proverbs to the practice of law can be enlightening for as Irish playwright John Millington Synge once noted, “There is no language like the Irish for soothing and quieting.”

A closed mouth—a wise head.

Although the Irish are known for the gift of gab, they also recognize that sometimes, the less said the better. This can be seen in the practice of law in judicial opinions where judges write concisely in an effort to streamline their opinion on the issues presented and avoid the possibility of inadvertently raising appellate issues.

Litigators may benefit from speaking concisely when addressing the court or a jury. Another Irish instruction is to “Say little, but say it well.” For example, it is often recommended that trial counsel keep objections to a minimum so as not to irk the trial judge or appear as if one is attempting to hide something of importance from a jury. As the Irish also say, “A silent mouth never did any harm.”

Conversely, another wise Irish proverb is that “A loud voice can make even the truth sound foolish.” Bombastic and arrogant presentations by attorneys cause the immediate perception that what is being said is either devoid of merit or, at best, suspect. Efforts at tempering one’s argument in accordance with the applicable law and avoiding personal attacks on opposing counsel will only serve to add credibility to the position being advocated.

A good beginning is half the work.

Whether it be the first words spoken to a judge or jury or the opening sentences of a brief, the beginning of one’s presentation can make or break a case. Overworked judges reading hundreds of briefs and bored jurors will appreciate the fresh notion of arguments that quickly get to the point and remain there.

In terms of oral presentation to a judge or jury, first impressions last forever. The crux of an argument or the theory of the case should comprise the first words out of an attorney’s mouth. A concise description of the dispute presented and why fairness dictates a ruling in favor of one’s client should be forcefully advocated from the get-go.

With brief writing, the typical generic opening paragraphs providing a boring statement of the facts should be eschewed in favor of a more pointed story comprised of the impact facts crucial to the issue presented followed by a concise recitation of the reasons why the court should rule in one’s client’s favor.

The goal of the initial paragraphs of a brief should be to grab the attention of the reader and direct it immediately to the position advocated. Simply put, interesting writing is persuasive writing.

If a rogue deceives me once, shame on him.
If he deceives me twice, shame on me.

Unfortunately, at various times in one’s practice, attorneys have to deal with another attorney that, to use the Irish vernacular, can be described no better terms than as a scoundrel.

When dealing with such attorneys for the first time, one may make a mistake or let their guard down providing an opportunity for the other attorney to take an untoward advantage in the case. But as Irish novelist James Joyce once noted, “Mistakes are the portals of discovery.” Once it is discovered through a mistake that opposing counsel can not be trusted to play by the rules or act with professional courtesy, one can take steps to prevent the situation from occurring again.

It is unfortunate that attorneys can not always rely upon the courts for relief from vexatious and dilatory tactics of a recalcitrant opposing counsel. While such weasel-like attorneys may treat opposing counsel in a reprehensible fashion, they are usually wise enough to appear before the court in the character of Eddie Haskell, the bully from the old Leave It To Beaver television show, who always took on an oily obsequious manner whenever faced with an authority figure in order to stay out of trouble.

Judges have to be even-handed when dealing with such disputes and may not always be in a position to properly address the tactics of such an opposing counsel. One should rest assured, however, that these types of attorneys routinely appear before the court on repetitive and petty issues such that their reputation for vexatiousness becomes engrained and, hopefully acknowledged and punished.

What this Irish proverb suggests is that an attorney should keep negative tactics of a particular opposing counsel in the memory bank and share such information with other attorneys so as to limit the ability of the attorney to engage in improper or unnecessary behavior.

As sung by legendary Irish rocker Bono of U2 in the song “Acrobat,” “Don’t let the bastards grind you down.”

Remember, even if you lose all, keep your good name,
for if you lose that, you are worthless

An oft indicated principle or truth is that an attorney’s word is his bond. The Irish also proverbially quip that “A promise is a debt.” Developing a reputation for being good for one’s word and keeping promises is a virtue that can carry an attorney through his career above all else in terms of relations with the court and opposing counsel.

Without a doubt, a lawyer’s reputation precedes his interactions with all in the practice. When picking up new files, lawyers will typically first look to see who is on the other side and if that person is unknown, efforts will be made to ascertain the reputation of that attorney and how he or she handles cases.

Day in and day out, thoroughness and integrity in preparation and presentation along with punctuality and professional courtesy are the important building blocks of a solid reputation in the practice of law. Adherence to these positive characteristics will not only serve to enhance one’s stature among fellow members of the bar and the judiciary but may also allow one to secure an even more favorable result for one’s client.

If you lie down with dogs, you’ll rise with fleas.

Poor cases are often referred to in the practice as “dogs.” In developing one’s practice, while it may be understandable that an attorney may take on a few cases having difficult liability hurdles or questionable damages, it may be wise for counsel to avoid a proliferation of these cases such that one’s office turns into a dog pound.

Taking on too many troublesome cases can affect one’s reputation and the fleas from the dog cases might not only leech onto the attorney but may even possibly carry over and affect the value of the other more profitable cases in the office. As the great Irish poet William Butler Yeats once wrote, “But was there ever dog that praised his fleas.”

Accordingly, care should be taken in accepting new clients As the Irish also say, “If you put a silk dress on a goat, he is still a goat.” In other words, even the best of attorneys may not have the skills to put the shine on a tarnished case of little or no value. Attorneys may be wise to protect their reputations by refusing such cases in the first instance, or at the very least, referring them out for others to handle.

Never put off til tomorrow what you can do today.

As a catalyst for unnecessary stress, procrastination may be the worse enemy of an attorney. By continually putting off job tasks until the last moment, attorneys may be forced to scramble to complete a work product, such as a brief, and the end result is usually sub-par.

In keeping with the best possible service the client is entitled to by virtue of their entrusting their cause to an attorney, the better practice may be to look ahead to the following months deadlines and, wherever possible, immediately beginning the first drafts of any briefs, discovery requests or responses, or other written materials. In this manner, the work product can be started with sufficient time left to repeatedly revise the work product so as to strive to put out the best effort on behalf of the client.

If you dig a grave for others, you might fall into it yourself.

Stated otherwise, what goes around, comes around. The practice of law as a whole is better served by attorneys who assist one another and provide heads ups to one another of potential pitfalls.

The Rules of Professional Conduct, the Code of Civility and the PBA Working Rules of Professionalism are replete with instructions on professional courtesy. Periodic review of, and adherence to, these rules of professional conduct and courtesy can only serve to improve one’s reputation and benefit the practice as a whole.

Obviously, efforts should always be made to treat others with the respect, kindness and courtesy we would hope for in return. As the Irish also warn, “Be kind to those you meet as you rise, you may pass them again as you fall.”

A light heart lives long.

As overwhelming as the practice of law can be, with files and clients on one’s mind essentially 24 hours a day and seven days a week, it is important to attempt to maintain a balance between one’s work life and one’s life outside of work. The stress of the practice can weigh heavily on the heart over the years.

Directing all of one’s energy towards the practice of law and neglecting other aspects of life outside of the practice can quickly lead to a burnout or a disillusionment with the profession.

The great Irish dramatist George Bernard Shaw was once quoted as saying, “A day’s work is a day’s work, neither more nor less, and the man who does it needs a day’s sustenance, a night’s repose and due leisure, whether he be a painter or ploughman.”

Periodically getting away from the practice of law by vacationing or otherwise for periods of rejuvenation and a rediscovery of one’s sense of self and personal interests will inevitably make life more enjoyable and provide for a fuller existence. An attorney with a more balanced life may have a better physical and mental status and thereby be in a position to better serve his or her clients.

As this old Irish proverb proves, quality time spent with family, reconnecting with old friends, exercising, or engaging in long lost hobbies may not only add life to one’s years but also years to one’s life. May you live as long as you want, and never want as long as you live.

Daniel E. Cummins, Esquire is a partner with the Scranton, Pennsylvania civil litigation firm of Foley, Comerford & Cummins. Attorney Cummins focuses his practice on insurance defense and coverage matters all across Northeastern Pennsylvania.

This article is reprinted here, with permission, from the March 10, 2008 issue of the Pennsylvania Law Weekly (c) 2008 Incisive Media US Properties, LLC, now known as American Law Media. The title of the article in the Pennsylvania Law Weekly was "A Parade of Proverbs." Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

Source of image:

Thursday, March 16, 2017

Pennsylvania Superior Court Addresses Waiver Form and Assumption of Risk Defense in Context of College Football Injuries

In its recent decision in the case of Feleccia v. Lackawanna College, No. 2017 Pa.Super. 44 (Pa.Super. Feb. 24, 2017 Ford Elliott, P.J.E., Shogan, J., and Stevens, P.J.E.)(Op. by Shogan, J.), the Pennsylvania Superior Court was faced with the issue whether two junior college students who were injured at a preseason football practice were barred from recovering against the college because both signed waivers of liability prior to their injuries.

The Superior Court reversed the trial court's entry of summary judgment.  With regards to the waiver form, the appellate court found that issues of fact precluded the entry of summary judgment.  The court noted, in part, that issues of fact on whether the defendants had acted with gross negligence or recklessly under the case presented raised a question of whether the waiver form was sufficient to preclude a finding of liability against the defendants.

The appellate court also recognized the continuing validity of the assumption of risk defense under Pennsylvania law but found that issues of fact precluded the entry of summary judgment under that doctrine as well.

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

I send thanks to Attorney Andrew Motel for bringing this decision to my attention. 

Wednesday, March 15, 2017

Blair County Court of Common Pleas Rules to Sever and Stay Post-Koken Bad Faith Claim

In a recent trial court decision out of the Court of Common Pleas of Blair County in the case of Raia v. Agency Insurance Company of Maryland, Inc., No. 2015- GN-3456 (C.P. Blair Co. Feb. 28, 2017 Doyle, P.J.), the court sustained an insurance company’s Preliminary Objections in a post-Koken matter seeking the severance of the bad faith claim from the breach of contract claim. The court also agreed to stay discovery in the bad faith portion to the case. 

In her Opinion, President Judge Doyle noted that the Koken v. Reliance Ins. Corp., 891 A.2d 704 (Pa. 2005) decision, in which the Pennsylvania Supreme Court held that uninsured and underinsured motorist claims may be presented in the Court of Common Pleas, “has created uncertainty on how to conduct civil actions which involve a claim on a plaintiff’s uninsured or underinsured motorist coverage as well as a claim for bad faith on the part of the insurance company."  

The Raia court also noted that this “uncertainty is further exacerbated through the lack of guidance from the appellate courts, resulting in split authority among the Common Pleas Courts and the Federal District Courts.” 

Generally reviewing decisions from around Commonwealth of Pennsylvania, this court in Raia noted that “the rulings from the State and Federal courts have run the gamut, State courts are much more willing to sever and stay proceedings in some form or fashion, while Federal courts tend to deny these motions and keep the matters consolidated.   However, this is not a hard and fast observation, and judges, both State and Federal, have come out on different sides of this issue.”  

This issue of severing and staying the bad faith portion of a Post-Koken matter appeared to be a case of first impression within Blair County.  

In this decision, the court agreed that there is a potential for substantial prejudice to the insurance company in trying both the UIM and bad faith claim in front of the same jury.  

The court found that it would be difficult to for an average jury, after having listened to issues relating to the bad faith claim and the UIM claim, to disregard evidence presented for the bad faith claim when deciding the UIM claim.   This court felt that, in reality, such evidence would play in the minds of a jury and would likely influence their verdict, even if a limiting jury instruction was provided by the court.  

Accordingly, the court in Raia found that the potential prejudice in trying a UIM claim and a bad faith claim together warranted the severing of the two (2) claims.  

As for the decision to stay discovery on the bad faith claim, this court noted that allowing discovery to proceed on the bad faith claim, would permit the Plaintiff to discover material not relevant to a straightforward UIM claim.  

The court also noted that staying discovery would keep both parties on an equal footing with respect to the UIM claim until the UIM litigation is concluded.  

As such, the court stayed discovery on the bad faith claim until the conclusion of the UIM litigation.  

The court also noted that the interests of judicial economy favored this decision to stay the bad faith claim as UIM discovery was fast, fairly routine, and generally without contention as opposed to the typically contentious nature of bad faith discovery which would serve to slow down and prolong the litigation as the parties file and argue multiple discovery motions.  

Anyone wishing to read this case online may click this LINK.

I send thanks to the prevailing defense attorneys, John W. Croumer and Attorney Paul Grego of the Lancaster, Pennsylvania office of Post & Schell, P.C. for bringing this decision to my attention.  

Tuesday, March 14, 2017

Summary Judgment Denied in Missing Stop Sign Case

In a recent trial court decision in the case of Tesla v. Neshanock Twp., No. 10647 of 2013, C.A. (C.P. Lawrence Co. Jan. 19, 2017 Motto, J.), the court found that a township was not entitled to summary judgment in an auto accident case where the township was found to have had constructive notice that a stop sign was missing prior to the time the accident occurred.  
According to the Opinion, due to the missing stop sign, a vehicle did not stop at the intersection, resulting in the Plaintiff’s vehicle being broadsided in the course of an automobile accident. 
The Plaintiff filed suit, in part, against the township, alleging that the township was negligent in failing to adequate inspect its traffic signs, failing to reinstall or replace the stop sign, failing to position the stop sign so that it would not be knocked down, and failing to install adequate lighting at the intersection.  
When the township claimed sovereign immunity, the Plaintiffs asserted that this case fell under an exception to that immunity law which exception applies if the government entity had actual or constructive notice of the alleged defect.  
According to the court's opinion, there was evidence in this case that the investigating police officer told the Plaintiff’s daughter at the scene of the accident that the stop sign had been missing because it had been knocked over by a truck earlier in the day, that this was a dangerous intersection, and that the police officer regularly patrolled the area.  The court found that the police officer was an agent of the township and, as such, his statements will be admissible.  
The court also found that, once the township had knowledge of the missing stop sign, the need to take steps to protect against this dangerous condition was immediate.   The dangers brought on by a missing stop sign due to the possibility that a driver would not be aware that the intersection was previously controlled by a stop sign was so great that the intersection needed to be protected immediately.  
There was also evidence presented in this case that the missing stop sign was a reoccurring situation at this particular intersection as it was a tight turn for trucks, which had caused multiple vehicles to knock over the stop sign previously. 
In light of all of these findings, including the finding that this was a busy intersection and that the stop sign had been down for a number of hours before the accident, the court found that there was sufficient evidence from which a jury could find that the township had constructive notice of the defect.  Accordingly, the township’s Motion for Summary Judgment was denied.    

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


Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (February 14, 2017).

Friday, March 10, 2017

Congratulations to the Abington Heights High School Mock Trial Team On Advancing to the State Championships

Proudly congratulating the Abington Heights High School Mock Trial Team for winning both the District 1 Championship and then winning the Region 10 Championship last night which allows them to advance onto the State Championships set to take place in Harrisburg, PA on March 24-25, 2017.

During the competition, student teams present and argue both sides of a trial in an actual courtroom before a judge.  In some years the case involves a criminal trial and in other years the case is a civil trial.  The students, who play the roles of lawyers, witnesses, expert witnesses, plaintiffs and defendants, are assisted by teacher coaches and lawyer advisors in preparing for competition. Lawyers and community leaders serve as jurors for the mock trials. The juries determine the winners in each trial based on scoring of the teams' abilities to prepare their cases, present arguments, and follow court rules and procedures.

The Abington Heights High School's Teacher Advisor is Len Romanski, a social studies teacher at the school.  Along with Julie Zaleski, Esquire, Tom Specht, Esquire, Claire Czaykowski, Esquire, I served as one of the Attorney Advisors for the team and highly recommend that others look for local high school teams to assist them in preparing their cases for next year's Mock Trial Competition (teams typically begin practicing near the end of the calendar year for the competitions that start in February every year). 

Serving as an Attorney Advisor is a truly rewarding experience and a great way to give back to the community and to generate good will for the legal profession.  You will likely also find that you learn a thing or two from these young attorneys in terms of coherent, concise case presentation.

Another way to assist the Mock Trial program is to volunteer your time to serve as a juror at one of the trials.  The teams advance based upon their scoring as determined by attorneys who sit on the jury and who evaluate the attorneys on their Opening Statements, Direct Examination, Cross-Examination, handling of objections, and their Closing Arguments.  The student-witnesses are also judged by the jury in terms of their performances as well.  The Mock Trials typically run approximately two hours and so the time commitment is minimal but the rewarding feeling of helping out the program is great.

As stated, encouraging and mentoring potential future lawyers through the Mock Trial program is a great way to pass down the traditions of our profession to the next generation.



As we start to move towards Spring, look ahead several months on your calendar and schedule some time off for yourself later while the coast is clear.

Scheduling vacations, or at least a few long weekends here or there, helps to rejuvenate one’s self and,thereafter, increase productivity.

Although a lawyer can never completely get away from the practice of law, pushing it to the back burner for a day, or several days, and focusing on the other, more important and/or enjoyable aspects of your life can result in your being refreshed upon your return to work.