Sunday, August 30, 2009

Pennsylvania Superior Court Continues to Question the Ongoing Validity of the Assumption of Risk Doctrine

In the recent case of Zeidman v. Fisher, 2009 WL 2462563 (Pa.Super. August 13, 2009), the Superior Court elected to apply general negligence principles to a claim presented by a plaintiff injured by an errant shot on a golf course. In so ruling, the Superior Court overruled the trial court's decision that the plaintiff's claims were barred by the assumption of risk doctrine, i.e. that the plaintiff assumed the risks associated with playing on a golf course.

In so ruling, this panel of the Superior Court noted that the continuing validity of the doctrines of assumption of the risk and its near-equivalent, the “no-duty” rule, were in doubt. As such, the Superior Court vacated the trial court’s application of those doctrines to grant the defendant's motion for summary judgment. Finding instead issues of fact to exist under the application of general negligence principles, the Superior Court remanded the case back down for further proceedings.

This Zeidman case again illustrates the need for clarification from the Pennsylvania Supreme Court on whether the assumption of risk doctrine should be deemed to be alive and well in Pennsylvania. Hopefully, that clarification will come someday soon.

In the words of Pennsylvania Supreme Court Justice Stephen A. Zappala in his concise dissenting opinion found in Howell v. Clyde, 620 A.2d 1107 (Pa. 1993) over 15 years ago: "Until such time as this Court arrives at a clear-cut majority, we will continually muddy the waters in the sensitive areas of both comparative negligence and the assumption of risk, both of which are cornerstones of the negligence law in this Commonwealth."

Tuesday, August 25, 2009

Luzerne County Update: Ex-Judges Ciavarella and Conahan Withdraw Guilty Pleas

According to an August 25, 2009 front page article in the Scranton Times (www.scrantontimes.com), on Monday, August 24, 2009, Judge Edwin Kosik of the Federal Middle District Court of Pennsylvania formally rejected the requests of Mark A. Ciavarella and Michael T. Conahan for a reconsideration of the Court's prior rejection of the plea agreements entered into by the ex-judges back in January of 2009 that called for a sentence that included 87 months in prison.

As permitted, the ex-judges followed the Court's decision by choosing to withdraw their guilty pleas. The case is now back to square one and it remains to be seen whether plea negotiations will be re-instituted or the cases proceed to trial.

Update on Seatbelt Defense Case

In an August 6, 2009 per curiam Order issued in the case of Gaudio v. Ford Motor Company, the Pennsylvania Superior Court denied a request to hear additional arguments regarding a defendant's right to introduce evidence concerning seat belt usage, or the lack thereof, in products liability cases involving questions about an automobile's crashworthiness.

This Order effectively upholds the Superior Court's 2-1 decision, found at ruling that the trial court should not have allowed any reference to the plaintiff's decedent's failure to wear a seatbelt in a crashworthiness case. Judge James Fitzgerald III dissented on this issue in the prior Superior Court opinion and suggested that the Courts could use guidance from the Pennsylvania Supreme Court on whether any and all evidence pertaining to the lack of seatbelt use should be precluded under all circumstances.

The original 2-1 Superior Court decision can be found on Westlaw at 2009 WL 1530669, and the Pike County trial court opinion by Judge Harold A. Thomson, Jr. can be found at 2007 WL 5077415.

It remains to be seen now whether the defense will appeal this case up to the Pennsylvania Supreme Court.

Monday, August 24, 2009

Westlaw Citations for Recent Cases of Note

I was recently provided with the following Westlaw citations for the below recent cases of note. Thanks to James Beck, Esquire of the Dechert firm in Philadelphia for his efforts in pushing for these cases to be published on Westlaw.

The recent trivial defect premises liability case has been given the following Westlaw citation:

Melchiorre v. Lords Valley Xtra Mart, 2009 WL 2430339 (Pike Co. 2009)


Some of the recent trial court post-Koken opinions have also been given Westlaw citations as well:

Decker v. Nationwide, 2008 WL 6653069 (Lacka. Co. 2008)

Decker v. Nationwide, 2007 WL 6853118 (Lacka. Co. 2007)

Six v. Phillips, 2009 WL 2418861 (Beaver Co. 2009)

Jannone v. McCooey, 2009 WL 2418862 (Pike Co. 2009)

Gunn v. Auto. Ins. Co. of Hartford, 2008 WL 6653070 (Allegh. Co. 2008)

Friday, August 21, 2009

REMINDER: This Thursday, August 27th Civil Litigation CLE Seminar at the Mohegan Sun Casino in Wilkes-Barre, PA

As a reminder, this Thursday, August 27th, an informative civil litigation CLE will be held at the Mohegan Sun Casinos at the Pocono Downs in Wilkes-Barre, Pennsylvania.

I recently did a run-through with casino officials as a last minute preparation for the seminar. The cocktail hour area looks great and there are some nice restaurants to catch dinner after. Visit http://www.poconodowns.com/ to check out the casino.

The seminar is geared to provide updates to plaintiff's counsel, defense counsel, and claims professionals. The details of the seminar and a registration form are set forth below. Hope to see you there:

THE PENNSYLVANIA DEFENSE INSTITUTE
and
NORTHEAST PENNSYLVANIA TRIAL LAWYERS ASSOCIATION

Proudly Present a Continuing Legal Education Program On

“CIVIL LITIGATION DEVELOPMENTS 2009”

at the

MOHEGAN SUN CASINO at POCONO DOWNS
Thursday August 27, 2009
1 p.m. to 5 p.m.
Followed by Cocktail Hour


1:00 – 1:30 PM Registration

1:30 – 2:30 PM “Ethical Considerations in the Insurance Relationship”

Mathew Keris, Esq., Marshall, Dennehey, Moderator
John Aponick, Esq., Marshall, Dennehey
Frank Brier, Esq., Geisinger Legal Services
Carl Gaugliardo, Esq., Selingo & Gaugliardo


2:30 – 2:45 PM Break


2:45 – 3:45 PM Breakout Sessions:

"Civil Litigation Update/ABC's of IME's
Daniel E. Cummins, Esq., Foley, Cognetti, Comerford, Cimini & Cummins

or

“Avoiding Medicare Disasters When Settling Your Case”

James Pocius, Esq., Marshall, Dennehey


3:45 – 4:00 PM Break


4:00 – 5:00 PM Breakout Sessions:

“Auto Law Update”
Robert Panowicz, Esq.

or

“Who Will Be Deciding Your Case: Suggestions for Voir Dire and Jury Selection”
Jill Huntley Taylor, Ph.D.
Director, Dispute Dynamics

2 Substantive & 1 Ethics CLE Credits


The program will be immediately followed by a reception with
the Judiciary serving Northeastern Pennsylvania.

Costs for the events:
• Program for claim representatives/risk managers $25.00
• Program for paralegals $25.00
• CLE program for lawyers $125.00
• Cocktail Reception - an additional $65.00

For reservations, please print and complete the form below and return to PDI or e-mail us at coled01@padefense.org

Name(s)_______________________________________________

_____________________________________________________

Firm/Company__________________________________________

_____________________________________________________

Address_______________________________________________

_____________________________________________________

Make checks payable to:
PENNSYLVANIA DEFENSE INSTITUTE
P.O. Box 697, Camp Hill, PA 17001-0697
For more information, contact PDI at 800-734-0737

Friday, August 14, 2009

Humorous Court Contempt Story

Found this story on ABA website:


Loud Yawn Lands Court Spectator in Jail; 6-Month Sentence Later Reduced

Posted Aug 10, 2009, 09:42 am CDT
By Debra Cassens Weiss

Updated: A spectator in an Illinois courtroom who let out a loud yawn as his cousin was being sentenced for a felony drug charge soon found himself in jail.

Clifton Williams was sentenced to six months in jail for criminal contempt, the Chicago Tribune reports. His cousin was luckier—he received two years’ probation for his offense.

Spokesman Chuck Pelkie of the Will County State's Attorney's office told the Chicago Tribune that the yawn was not a quiet one, according to the prosecutor who observed it. "It was not a simple yawn,” Pelkie said. “It was a loud and boisterous attempt to disrupt the proceedings."

The sentencing judge was Daniel Rozak of Joliet, who has brought more than a third of contempt charges in Will County south of Chicago, even though he is one of 30 judges there, according to the story. Rozak has brought four out of five criminal contempt charges by Will County judges this year.

He is known for running well-managed trials and a strict courtroom, according to the story. Said Joliet defense lawyer David Carlson: "I think he's terrific—he understands how the world works."

Williams doesn’t agree. “I really can't believe I'm in jail," he wrote his family in a letter. "I done set in this [expletive] a week so far for nothing."

Rozak later reversed course and freed Williams after he served three weeks in jail, but not before delivering a short lecture, according to the Associated Press and the Chicago Tribune. Rozak told Williams he wasn't jailed for just yawning. Instead he was punished for making a sound "that was offensive to the court."

Updated on Aug. 14 to include news of Williams' release.


The guy should be glad he didn't break wind.

Thursday, August 13, 2009

REMINDER: Upcoming August 27, 2009 CLE Seminar at Mohegan Sun Casino in Wilkes-Barre Pennsylvania

I will be presenting a civil litigation update/IME law update at an upcoming August 27th CLE to be held at the Mohegan Sun Casinos at the Pocono Downs in Wilkes-Barre, Pennsylvania. Visit http://www.poconodowns.com/ to check out the casino.

The seminar is geared to provide updates to plaintiff's counsel, defense counsel, and claims professionals. The details of the seminar and a registration form are set forth below. Hope to see you there:
THE PENNSYLVANIA DEFENSE INSTITUTE
and
NORTHEAST PENNSYLVANIA TRIAL LAWYERS ASSOCIATION

Proudly Present a Continuing Legal Education Program On
“CIVIL LITIGATION DEVELOPMENTS 2009”

at the
MOHEGAN SUN CASINO at POCONO DOWNS
Thursday August 27, 2009
1 p.m. to 5 p.m.

Followed by Cocktail Hour

1:00 – 1:30 PM Registration

1:30 – 2:30 PM “Ethical Considerations in the Insurance Relationship”
Mathew Keris, Esq., Marshall, Dennehey, Moderator
John Aponick, Esq., Marshall, Dennehey
Frank Brier, Esq., Geisinger Legal Services
Carl Gaugliardo, Esq., Selingo & Gaugliardo

2:30 – 2:45 PM Break

2:45 – 3:45 PM Breakout Sessions:
"Civil Litigation Update/ABC's of IME's
Daniel E. Cummins, Esq., Foley, Cognetti, Comerford, Cimini & Cummins
or

“Avoiding Medicare Disasters When Settling Your Case”
James Pocius, Esq., Marshall, Dennehey

3:45 – 4:00 PM Break
4:00 – 5:00 PM Breakout Sessions:

“Auto Law Update”
Robert Panowicz, Esq.

or

“Who Will Be Deciding Your Case: Suggestions for Voir Dire and Jury Selection”
Jill Huntley Taylor, Ph.D.
Director, Dispute Dynamics

2 Substantive & 1 Ethics CLE Credits


The program will be immediately followed by a reception for
the Judiciary serving Northeastern Pennsylvania

Costs for the events:
• Program for claim representatives/risk managers $25.00
• Program for paralegals $25.00
• CLE program for lawyers $125.00
• Cocktail Reception additional $65.00

For reservations, please print and complete the form below and return to PDI or e-mail us at coled01@padefense.org
Name(s)_______________________________________________

_____________________________________________________

Firm/Company__________________________________________

_____________________________________________________

Address_______________________________________________

_____________________________________________________

Make checks payable to:
PENNSYLVANIA DEFENSE INSTITUTE
P.O. Box 697, Camp Hill, PA 17001-0697
For more information, contact PDI at 800-734-0737

Monday, August 10, 2009

Judge Thomas I. Vanaskie Nominated to Third Circuit Court of Appeals

On Friday, August 8, 2009, President Obama nominated Pennsylvania Middle District Federal Court Judge Thomas I. Vanaskie to serve on the Third Circuit Court of Appeals.

Judge Vanaskie is a graduate of Lycoming College and the Dickinson School of Law. After law school, he clerked for the Honorable William J. Nealon.

After many years in private practice, he was appointed by President Bill Clinton to the Middle District 15 years ago. He went on to serve as the Chief Judge of the Middle District Federal Court from September of 1999 through August of 2006.

With the appointment of Judge Vanaskie to the Third Circuit and another Judge to the Sixth Circuit, President Obama said these two nominees "have displayed exceptional dedication to their communities through their work" and "will be diligent, judicious and esteemed additions" to the courts.

Once Judge Vanaskie secures his seat on the Third Circuit, there will then be three openings on the bench in the Middle District of Pennsylvania. It remains to be seen who will be nominated for those openings.

Friday, August 7, 2009

More Post-Koken Cases From Around the Commonwealth

I thank Katherine Douglas, Esquire, a Dickinson Law grad and current member of the Philadelphia law firm of Bennet, Bricklin & Saltzburg for bringing the following additional post-Koken decisions to my attention. I am working on getting copies of these opinions and/or orders.

Attorney Douglas noted that, consistent with the other previously noted cases on the consolidation of multiple claims issue, the following courts also refused to sever the claims against the tortfeasors from the claims against the carrier:

Richard Hess v. Cosgrove et al, Phila, July Term, 2008, no. 3708;

Kelly Hess v. Dickel, et al., Phila, October Term, 2008, no. 3220;

Fuhrman v. Frye and State Farm, Dauphin, 2008 CV 17687, and

Sellers v. Hindes and State Farm, Dauphin, 2009 CV 1989.

Thursday, August 6, 2009

Latest Compilation of Post-Koken Cases

The following is a list of post-Koken cases that I have come across or have been made aware of over time. It is by no means intended to be an exhaustive list of these types of decisions to date and there may very well be other opinions out there.

All of the opinions and orders noted below have been generated from trial courts across the Commonwealth. I am unaware of any appellate decisions having been handed down yet in this area.

I would be interested in being notified of any other post-Koken cases you may be aware of so that they can be publicized and a consistent common law can be generated in this area.

If any one needs a copy of any of the opinions or orders listed below, please do not hesitate to contact me. I also invite anyone needing any other assistance with a post-Koken case pending in Northeastern Pennsylvania to please contact me to discuss the matter. I can be reached at dancummins@comcast.net.

The post-Koken cases that I am aware of to date are, as follows:

Decker v. Nationwide Ins. Co., 2005-Civil-1863//2006-Civil 2119 (Lacka. Co. March 4, 2008)(Minora, J.)(consolidation permitted of bad faith action against UIM carrier and declaratory judgment action regarding coverage).

Gunn v. Auto. Ins. Co. of Hartford, Conn., GD07-Civil-002888 (Alleg. Co. July 25, 2008)(Wettick, J.)(Bad faith claim and UIM claim allowed to proceed together).

Augustine v. Erie Ins. Exchange, 2006-Civil-416 (Lacka. Co. August 1, 2008)(Mazzoni, J.)(Motion to sever bad faith claim from UIM claim denied).

Collins v. Zeiler and State Farm, GD08-Civil-014817 (Alleg. Co. October 22, 2008)(Strassburger, J.)(Preliminary objection seeking to sever claims denied.).

Moyer v. Harrigan and Erie Ins. Exchange, 2008-Civil-1684 (Lacka. Co. October 24, 2008)(Thomson, J. visiting judge)(Consolidation of UIM claim and claim against tortfeasor permitted).

Jannone v. McCooey and State Farm, 2320-2008-Civil (Pike Co. April 1, 2009)(Chelak, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes).

Serulneck v. Kilian and Allstate, 2008-Civil-2859 (Lehigh Co. April 7, 2009)(McGinley, J.)(Motion of tortfeasor defendant for severance of claims against him from UIM claims under one caption denied.).

Six v. Phillips and Nationwide Ins. Co., 12227-Civil-2008 (Beaver Co. June 30, 2009)(Kwidis, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes.).

Glushefski v. Sadowski and Erie Ins. Exchange, 1189-Civil-2009 (Luz. Co. July 24, 2009)(Burke, J.)(Preliminary objection by tortfeasor defendant seeking to sever third party claim from consolidated UIM claim overruled).

Monday, August 3, 2009

Luzerne County Joins the Lists of Trial Courts Allowing for Consolidation of Third Party and UIM Claims Under a Single Caption

In the case of Glushefski v. Sadowski and Erie Insurance Exchange, No. 1189-Civil-2009, Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas issued a July 29, 2009 Order allowing the consolidation or joinder of a third party motor vehicle accident lawsuit and a companion UIM (underinsured motorist benefits) claim under one caption.

In Glushefski, the third party tortfeasor defendant filed preliminary objections the first of which objected to the Plaintiff's joinder of the tort and UIM claims in a single action. According to Plaintiff's counsel, the first paragraph of the Court’s Order dismissed the preliminary objection challenging this joinder. Although the Court did not write an opinion, there is now precedent that such joinder is permitted in Luzerne County by virtue of this Court Order.

In addition to this Luzerne County Order, I am in possession of a number of other post-Koken trial court opinions from across the Commonwealth of Pennsylvania, all of which have consistently held that lawsuit claims against the tortfeasor defendant may be consolidated with companion UIM claims in cases where the UIM policy calls for a trial as opposed to an arbitration of the UIM claim. To date, there does not appear to be any appellate opinions on the issue.

For more analysis on the post-Koken cases in Pennsylvania, please click on the topic of "Koken" under the LABELS section on the right hand column of this blog

Anyone desiring a copy of this Luzerne County Order, or any other post-Koken trial court opinions and orders in my possession, may contact me at dancummins@comcast.net. I would be happy to email you a copy.

I thank Rick Russo, Esquire, partner in the Wilkes-Barre, PA firm of Rosenn, Jenkins & Greenwald and Plaintiff's counsel in the Glushefski case, for bringing this Order to my attention and providing me a copy of the same.