Thursday, July 2, 2015

Judge Minora Reviews Current Status of At Will Employment Law

Facing an Employment At Will situation?  Click HERE for a thorough Opinion by Judge Carmen D. Minora in the case of Krutulis v. Community Medical Center, No. 2009 - CV - 1474 (C.P. Lacka. Co. June 4, 2015 Minora, J.), for the current status of Pennsylvania law on this issue (including the public policy exception to the rule).

In this matter, Judge Minora granted summary judgment in favor of an employer-hospital and against an employee-nurse-plaintiff relative to the discharge of the nurse from her employment.

In the end, the law remains that an at-will employee may be discharged for any reason or no reason.

Wednesday, July 1, 2015

Registration Open for Tort Talk Expo 2015


Thursday, September 24, 2015

Mohegan Sun Casino and Hotel

Wilkes-Barre, PA 

(3 Substantive, 1 Ethics Credit)

Door Prizes - Vendor Giveaways - Raffle Prizes 
[Registration 11:30 am - 12 noon]


12:00 pm - 1:00 pm - "LESSONS FROM FORREST GUMP"


by Daniel E.  Cummins, Esq. FOLEY, COMERFORD & CUMMINS 


1:00 pm - 2:00 pm – CIVIL LITIGATION UPDATE

by Melissa A. Scartelli, Esq. SCARTELLI AND OLSZEWSKI 


BREAK 2:00 pm – 2:15 pm


  2:15 pm - 3:15 pm - MEDICAL HOUR

 Dr. Sheryl Oleski – Low Back Pain Overview



BREAK 3:15 pm – 3:30 pm


 3:30 pm - 4:30 pm - VIEW FROM THE BENCH

Ethical Considerations for Settlement Conferences
and Other Dealings with the Court



Judith Price, Esq.  Dougherty, Leventhal & Price



  Pennsylvania Superior Judge Court Judge Christine Donohue

Luzerne County Judge Lesa Gelb

Lackawanna County Judge Margie Bisignani-Moyle

U.S. Federal Middle District Magistrate Judge Karoline Mehalchick






To Register, visit and click on registration link

or mail check made out to "Tort Talk" and form below to:


Daniel E. Cummins, Esq.

 Foley, Comerford & Cummins

507 Linden Street, Suite 700 
Scranton, PA 18503


Cost: $195 Attorneys; $25 Claims Representatives


NAME: ___________________________________________________


FIRM/COMPANY: _________________________________________

EMAIL: ___________________________________________________

Judge Mariani Reviews Propriety Award of Meds and Wages in a Premises Liability Personal Injury Case

In Wright v. Cacciutti, 3:12-cv-1682 (M.D. Pa. June 11, 2015 Mariani, J.), Judge Robert D. Mariani ruled on post-trial motions in a premises liability personal injury case and covered several important damages issues.

The court ruled that, under the Moorehead line of cases, the jury's award for past and future medical expenses could not be upheld given that the plaintiff had failed to establish the reasonable value of such expenses at trial.  The court noted that the plaintiff failed to offer either evidence of the actual cost of any past medical expenses, or proof of the reasonableness of those expenses.   As such, the jury's award in this regard was rejected as being impermissibly based upon pure speculation.

This Wright decision is also notable for the court's striking of the jury's award of damages for future medical care.  In this matter, the plaintiff did not introduce any evidence of the cost of future medical treatment, or expert testimony as to the necessity of any future medical care.  Judge Mariani noted that the issue of whether or not future medical care is necessary under the circumstances requires expert testimony in order to present this type of claim to a jury.  

Judge Mariani also upheld the settled rule that a plaintiff's own testimony is sufficient to support a claim for lost income, and may be used by the jury to infer an amount of future lost income.  

Anyone wishing to review this decision by Judge Mariani, may click this LINK.

I send thanks to Attorney Jim Beck of the Philadelphia office of Reed Smith.  Attorney Beck is the creator of the excellent Drug and Device Law Blog which can be viewed HERE.


Monday, June 29, 2015

Motion to Sever Post-Koken UIM/Bad Faith Claims Denied in Philadelphia County Case

In the case of Kiszlo v. Erie Insurance Exchange, No. 2355, October Term 2014 (C.P. Phila. Co. March 30, 2015 Rau, J.), the court denied the UIM carrier’s Motion to Sever the UIM and bad faith claims.

In her Order, Judge Rau provided that “[t]he same judge who presides over the UIM trial will also decide the bad faith claim immediately after the UIM jury trial.   Any evidence that is not relevant to the UIM claim but that is relevant to the bad faith claim may be presented to the judge following the UIM claim.   In all other respects, the claims will be proceed on a parallel track.”  

Anyone desiring a copy of this decision may click this LINK

 I send thanks to Attorney Jay Fulmer in Philadelphia for providing me with a copy of this decision.   



Thursday, June 25, 2015

Trial Court Addresses Questionnaires/Pain Diagrams for IMEs

The Dauphin County Court of Common Pleas recently addressed the issue of whether a Plaintiff is required to fill out a questionnaire and/or a pain diagram relative to an IME in the case of Maguire v. Liberty Mut. Group, No. 2014-CV-1036 (C.P. Dauph. Co. June 1, 2015 Bratton, J.).

In this motor vehicle accident matter, the Plaintiff was set up for an IME and the IME vendor company sent an IME Questionnaire and a MVA and Pain Diagram form to be filled out by the Plaintiff prior to the IME.  The Plaintiff objected to these documents as impermissible discovery sent by a non-party.  The defense asserted that these documents were a normal part of a physical examination by a physician and were permitted under Pa.R.C.P. 4010.  The issue was then brought before the court for resolution.

Reviewing the wording of Rule 4010, Judge Bratton noted that the Rule provides that "oral interrogation" of the person to be examined is allowed on issues germane to the claims of damages presented.  Based on this plain wording of Rule 4010 and the absence of any rule allowing a non-party to propound discovery in a litigation, the court sustained the Plaintiff's objections to the pre-IME documentation at issue.

Anyone wishing to secure a copy of this Maguire decision by Judge Bratton may contact me at

I send thanks to the prevailing Plaintiff's Attorney Robert Claraval of the Harrisburg, PA law firm of Claraval & Claraval for forwarding a copy of this decision to my attention.

Tuesday, June 23, 2015

Scope of Employer's Liability Exclusion in Commercial General Liability Policy Narrowed by PA Supreme Court

The Pennsylvania Supreme Court recently issued a notable decision in the case of Mutual Benefit Ins. Co. v. Politsopoulos, 60 MAP 2014 (Pa. May 26, 2015) in which the Court essentially eviscerated the scope of the employer's liability exclusion found in most commercial general liability insurance policies as applied to additional insureds.

The decision applies to the following typical fact scenario:  Company A owns a property and leases it to Company B to run a store on the premises.  The lease requires Company B--the store--to add Company A--the owner--as an additional insured under the store's commercial general policy.

An employee of Company B--the store--is hurt on the job in a slip and fall.  The employee cannot sue the store for personal injury under the store's immunity under the framework of applicable worker's compensation law.

Accordingly, the injured store employee instead sues Company A--the owner of the premises for a recovery over and above any worker's compensation benefits secured.

When the suit is served on Company A--the owner--that party will send the claim over to the commercial general liability carrier and request a defense.  Prior to the Pennsylvania Supreme Court case noted above, most commercial general liability carriers took the position that the employer's liability exclusions in the commercial general liability policy supported a denial of liability coverage not only to the store that obtained the policy but also to Company A--the owner.

Here, in the Mutual Benefit Ins. Co. v. Politsopoulos case, the Pennsylvania Supreme Court ruled that the “employer’s liability” exclusion in a restaurant’s umbrella commercial liability policy did not preclude coverage for a negligence suit brought by a restaurant employee against the policy’s “additional insureds,” who were the owners of the property on which the restaurant conducted its business.

The Court ruled that the exclusion, which provided that the policy barred coverage for injuries to employees of “the insured,” was ambiguous.  Accordingly, under general principles of contract construction applicable in Pennsylvania, the ambiguity was construed against the commercial general liability carrier and the exclusion was more narrowly construed as applying only to claims asserted by employees of “the insured” against whom the claim was directed.  The court held that because the property owners in this case were not the underlying plaintiff’s employers, the exclusion did not apply.
The Majority Opinion written by Chief Justice Saylor can be read online HERE

The Concurring Opinion by Justice Eakin can be viewed HERE.
Notably, commentators have indicated that this decision would be applicable to any type of contractual arrangement where one party agrees to list another as an additional insured in a commercial liability policy, which are typical in construction and vendor contracts as well.
I send thanks to Attorney Richard Fine of the Scranton, PA law firm of Fine & Wyatt for bringing this case to my attention.

Monday, June 22, 2015

Current Status of Law on Negligent Infliction of Emotional Distress Reviewed by Western District Federal Court

In the case of Rapchak v. Freightliner Custom Chassis Corp., 2:13-cv-1307 W.D. Pa. June 10, 2015 McVerry, J.), the court addressed the current status of the Pennsylvania law relative to negligent infliction of emotional distress claims.

In this matter, the decedent was working under his motorhome in his driveway by lying on his back while the vehicle was lifted up.  While the decedent was in this position, his mother came out of the home and said goodbye as she was leaving to visit a car show with a friend.  While the decedent's mother was away from the home, the motorhome came down on the decedent's chest and suffocated him to death. 

When the mother came home later that day she eventually found the decedent under the motorhome with his legs sticking out.

The Plaintiff-mother later filed suit and included a claim for negligent infliction of emotional distress.

The Rapchak court granted partial summary judgment, finding that a plaintiff cannot recover for negligent infliction of emotional distress where she did not contemporaneously observe the accident that resulted in the decedent's death.  

The court's decision, which provides a nice recitation of the current status of the bystander theory of recovery under the claim of negligent infliction of emotional distress can be viewed online HERE.

I send thanks to Attorney Jim Beck of the Philadelphia office of Reed Smith.  Attorney Beck is the creator of the excellent Drug and Device Law Blog which can be viewed HERE.