Recent Notable Civil Litigation Cases in the State and Federal Courts of Pennsylvania.

The following recent cases of note were highlighted in the Case Digests of the May 25, 2008 Pennsylvania Law Weekly. Copies of the cases summarized below may be secured from the Law Weekly for a small fee by calling 1-800-276-7427 and providing the PICS Nos. noted next to the case citations.

Venue-Forum Non Conveniens-Plaintiff's choice of forum given deference-State Court ruling

Walls v. Phoenix Ins. Co., 2009 WL 1383750 (Pa.Super. May 19,2009)(PICS Case No. 09-0845).

In this case, the insurance company denied a claim by the Plaintiff under her homeowner's policy relative to her home in Monroe County, Pennsylvania. The Plaintiff filed a breach of contract and bad faith action in Philadelphia County, obviously seeking out the more liberal venue. The trial court in Philadelphia transferred the case to Monroe County under the doctrine of forum non conveniens. The Superior Court reveresed in this opinion.

The Superior Court ruled that if a plaintiff chooses a certain forum, the court should not, under the doctrine of forum non conveniens, consider any argument that the forum choice is also allegedly inconvenient for the plaintiff as well. Rather, the Court noted that the plaintiff's choice deserved respect, if not deference.

Ruling that the defendant carrier must show more than inconvenience and further finding that the defendant failed to show that the chosen forum of Philadelphia county was vexatious, the Superior Court reversed the trial court and allowed the case to stay in Philadelphia.


Venue-Transfer-Federal (E.D.Pa.) Court Ruling

Barbera v. Lowe's Home Centers, Inc., 2009 WL 1362608 (E.D.Pa. May 15, 2009)(slip copy, memorandum opinion)(PICS Case No. 09-0830).

Plaintiff sued defendant for negligence in state court. The defendant removed the matter to the Eastern District Federal Court and then filed a Motion to Transfer the case to the Middle District Court under 28 U.S.C. Section 1404(a). This section allows a federal court to transfer the case to another district where the action may have been brought for the convenience of the parties and witnesses.

The Eastern District Court ruled that the defendant clearly demonstrated that venue was proper in the Middle District where the incident happened in the Middle District, the witnesses and evidence would be located in the Middle District, and given that the citizens residing in the area covered by the Middle District Federal Court of Pennsylvania would have more of an interest in the outcome of the litigation. As such, the Motion To Transfer was granted.


Medical Malpractice

Theirfelder v. Wolfert, 2009 WL 1383790 (Pa.Super. May 19, 2009)(PICS Case No. 09-0843).

A Plaintiff-wife, while being treated by a family doctor for anxiety and depression, became involved in a sexual relationship with the doctor. She and her husband later brought a medical malpractice claim alleging negligence on the part of the doctor for allowing the relations to occur. It was emphasized in the Superior Court's opinion that the the family doctor was treating the Plaintiff-wife for emotional problems and that it was alleged in the Plaintiff's Complaint that the sexual activity had allegedly caused the worsening of the Plaintiff-wife's emotional problems.

The Superior Court overruled the trial court's granting of the defendant's preliminary objections asserting a failure to state a cause of action upon which relief may be granted. The trial court based its decision on Long v. Ostroff, 854 A.2d 524 (Pa.Super.2004). Specifically, the trial court granted the preliminary objections based on Long's holding that “a general practitioner's duty of care does not prohibit an extramarital affair with a patient's spouse.”

In this matter, the trial court also believed that although Wolfert's sexual relationship with Wife may have been unethical, it did not violate the law or represent a breach of any professional duty. Accordingly, the trial court held that “the law is clear: it is not a breach of the duty of care when a general practitioner engages in a sexual relationship with a patient.” Id

The Superior Court reversed and held "that a patient does have a cause of action against either a psychiatrist or a general practitioner rendering psychological care, when during the course of treatment the physician has a sexual relationship with the patient that causes the patient's emotional or psychological symptoms to worsen." Therefore, it was found to be error for the trial court to dismiss the Thierfelders' complaint at the preliminary objection phase where all allegations of the Plaintiffs' Complaint had to be accepted as true under the standard of review.

In footnote 6 of its opinion, the Superior Court expressly "declined to extend [its] holding today to encompass a cause of action for spouses, such as Mr. Thierfelder, whether or not they are patients or not of defendant doctors." The Court's decision was noted to speak "only to the actual patients being treated by a defendant doctor with whom he or she is also having a sexual relationship."

The Court also noted, in coming to its conclusion, "that this situation may be different from a case where a general practitioner is rendering only medical care and is not treating the patient for anxiety or other psychological problems." The Superior Court confirmed that it "express[ed] no opinion as to whether there is or is not a cause of action when none of the treatment of the general practitioner is for emotional problems."


Automobile Insurance Cases

Kropa v. Gateway Ford, 2009 WL 1362357 (Pa.Super. May 15, 2009)(PICS Case No. 09-0810).

Gateway Ford had provided loaner vehicle to a Richard Adams. Adams signed a loaner agreement under which Gateway provided the vehicle with Pennsylvania mandated minimum insurance coverage. Adams was involved in motor vehicle accident with a plaintiff. Plaintiff sued Adams. The carrier that issued the policy tendered the $15,000 liability limit but refused to consider Adams to also be covered under Gateway Ford's much larger excess policy. The plaintiff brought a declaratory judgment action on the applicability of the excess coverage.

The Court held that the defendant driver was only entitled to liability coverage under the primary policy and not the excess policy because the "authorized driver" exclusion in the excess policy precluded coverage to any authorized drivers who were operating a covered automobile in accordance with the terms and conditions of a rental agreement with Ford, such as was the case in this matter. As such, the Plaintiff's request for a declaratory judgment in the Plaintiff's favor was denied.


Fleeger v. State Farm Mut. Automobile Ins., 2009 WL 690681 (W.D.Pa. March 16, 2009)(slip copy, memorandum opinion)(PICS Case No. 09-515).

The "regularly used exclusion" was upheld--again. The court found that this exclusion was not in conflict with the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL). The court noted that although the MVFRL requires carriers to offer UM and UIM coverage, it does not define the precise content or extent of such coverage.

It was noted that voiding this exclusion would only serve to frustrate the public policy concern of the increasing costs of automobile insurance as the carriers would be forced to underwrite unknown risks that the carriers had not received premiums for in that, without this exclusion, insureds would be permitted to drive any number of other non-owned vehicles not covered under the carrier's policy and receive gratis UIM coverage on all of those other vehicles by virtue of the fact that the insured had purchased such coverage on his or her own vehicle.

In the end, the court granted summary judgment in favor of State Farm on the coverage issue.