Sunday, May 31, 2009

Pennsylvania Supreme Court Grants Petition for Appeal to Address Two Important Strict Product Liability Issues

I thank James Beck, Esquire of the Philadelphia office of the Dechert, LLP law firm for advising me of the Pennsylvania Supreme Court's May 27, 2009 Order granting a Petition for Allowance of Appeal in the case of Schmidt v. Boardman Company, et al., 2009 WL 1471119 (Pa. 2009). I note that Attorney Beck is the co-writer of an excellent legal blog entitled Drug and Device Law found at I invite you to check out his blog.

In the Schmidt case, various plaintiffs filed strict products liability claims against successor corporations that purchased the assets of the original manufacturer of an allegedly defective fire truck that was involved in an accident that injured a number of persons.

More specifically, as the fire truck was responding to a call, unbeknownst to the firemen, there was a fire hose dangling from the side of the truck. Along the way the nozzle of the fire hose ran under a parked car, became taut when it got caught. The force was so great that it lifted the parked car as the nozzle broke free. The nozzle then careened like a missile and struck three plaintiffs standing nearby, killing one of them. Some additional plaintiffs, who did not sustain any physical injuries from this accident, brought emotional distress claims under a theory that they were bystanders who witnessed injuries to their close relatives.

After a jury found the fire department 50 percent liable and the successor corporations (who purchased the assets of the original manufacturer of the fire truck) 50 percent liable under an approximately $4.5 million dollar verdict, the successor corporations filed an appeal to the Superior Court.

At the Superior Court level, the court acknowledged the general rule that, with respect to successor liability, when one company sells or transfers all of its assets to another company, the purchasing or receiving company is not responsible for the debts and liabilities of the selling company simply because it acquired the seller's property. See Schmidt v. Boardman Company, et al., 958 A.2d 498, 504 (Pa.Super. 2008).

However, the Superior Court upheld the trial court's application of the product line exception to the rule of successor non-liability under which exception the plaintiff may recover from the successor if a number of factors are proven that essentially work together to show that the successor corporation acquires all or substantially all of the assets of the original company and continues essentially the same manufacturing operation as the selling company that originally made the product. Id. at 504-505.

The Superior Court also rejected the successor corporation's appellate argument that the recoveries allowed on the claims for infliction of emotional distress at the trial level should not have been allowed because the underlying tort alleged was under a strict product liability theory and not a negligence theory. The corporation more specifically argued that the emotional distress plaintiffs had not alleged or established any physical injury and that, in the absence of any physical injury, Pennsylvania law does not permit a recovery for emotional distress damages under a theory of strict product liability.

The Superior Court found this argument to be devoid of merit. The Court noted that the courts of Pennsylvania have long abandoned the "impact rule" previously required for a plaintiff to recover under an emotional distress claim. Id. at 518. The Superior Court noted that the law has been extended to allow for a bystander to recover so long as there is a close personal relationship between the physically injured party and the bystander who witnessed the injury.

In rejecting the defendant's argument, the Superior Court emphasized that the law has always focused on the nature of the relationship between the victim of the injury and the bystander rather than the type of the underlying tort. In this case, both the trial court and the Superior Court felt that under the horrific facts of a mother struck by the same projectile that killed her daughter after which the mother watched "her daughter's life drain from her body," the emotional distress sustained "is the inescapable byproduct of any underlying tort which caused the injury and thus, should be compensated." Id. at 519 [emphasis added]. This same analysis was applied to the other emotional distress plaintiff who witnessed the severe physical injuries sustained by her sister.

As such, the Superior Court affirmed the rulings of the trial court in favor of the plaintiffs. Now the successor corporation defendants' appeal to Supreme Court has been granted. In its May 27, 2009 Order, the Supreme Court noted that the following issues would be considered:

(1) Whether the plaintiff must prove a physical injury in order to be entitled to recover under a strict product liability theory?

(2) Whether the product-line exception to the general rule against successor liability should be a part of Pennsylvania's strict product liability jurisprudence?

(3) If the product line exception is recognized as part of Pennsylvania's strict product liability jurisprudence, whether the exception should be formulated to strictly require proof of the following before successor liability can be imposed: (1) the successor corporation purchased all or substantially all of the assets of the manufacturer of the product at issue; (2) the successor undertook essentially the same manufacturing operation as the manufacturer of the product alleged to have caused the plaintiff's injuries and then continued to manufacture the same product line; and (3) the transaction between the successor and the manufacturer of the product at issue caused the destruction of the plaintiff's remedies against the manufacturer?

The parties were also ordered by the Supreme Court to address whether the second issue noted above has been waived.

Given the strong wording of the Superior Court's opinion and the compelling rationale that both the trial court and Superior Court offered in support of their respective decisions, it would appear likely that the Supreme Court will affirm the decisions of the lower courts on these issues (assuming they have not been deemed to have been waived).

Thursday, May 28, 2009

Pennsylvania Association For Justice Puts On Excellent Seminar at the 27th Annual Pennsylvania Automobile Law Program in Philadelphia

Yesterday (May 27, 2009), I attended excellent presentations on the current status of Pennsylvania automobile law at the 27th Annual Pennsylvania Automobile Law Seminar put on by the Pennsylvania Association of Justice.

Attorney Leonard Sloane did a great job as the moderator, keeping the program moving and providing his own insight on the many topics covered.

The following is a recap of some of the highlights of the seminar.

Update of First Party, Third Party Liability, Limited Tort, and Coverage Issues

Attorney David Lutz's thorough recap of the case updates confirmed that there were not too many earth-shattering opinions handed down recently. Many of the cases reviewed were the ones that have been summarized in previous posts to this blog, such as the excess insurance case of Kropa v. Gateway Ford case and others.

Attorney Lisa Woodburn provided some nice tips on the inter-play between workers comp law and the auto law arena. Also, Frank J. Wesner, Jr. Esquire took part in discussion of the updates in bad faith law.

Later in the seminar, Attorney Lutz also provided tips or reminders to improve one's trial performance and results, which are always good to hear. Here are the ten tips covered and suggested to keep in mind:

1. Failure to clearly develop a powerful theme.

2. Failure to file appropriate motions in limine.

3. Failure to use a legal assistant during voir dire (to assist you in writing down juror's answers and info).

4. Failure to ask open-ended questions and follow-up questions during voir dire.

5. Failure to use demonstrative exhibits during opening statement.

6. Failure to properly prepare Plaintiff for cross-examination.

7. Failure to properly prepare treating doctor's testimony concerning causation and prognosis opinions.

8. Failure to use the internet for cross-examination of the Defendant witnesses, especially the defense expert witnesses.

9. Failure during closing argument to clearly convey that "the goal is money."

10. Failure to have a legal assistant properly conduct a jury debriefing after a verdict.

Update on Subrogation

Jason E. Matzus, Esquire from Pittsburgh presented his update on subrogation issues. If a passion is needed to become and expert on this topic and bring it to life during a seminar, this guy has it.

Of particular note, were his written materials and presentation on the impending Medicare Set-Aside issue. Attorney Lutz reviewed the Medicare, Medicaid and SCHIP Extension Act of 2007 which is to become effective on July 1, 2009. This Act, which is apparently directed at the liability industry and not plaintiff's attorneys, has the bar up in a tizzy about whether or not Medicare Set-Asides, common in worker's compensation cases, will be required in third party liability cases.

The purpose of the Medicare Set-Aside provision is to ensure that the primary payers (liability carriers) bear the cost of future medical expenses so that Medicare does not have to pay them down the road. The provision works by requiring that money be set aside from a settlement and be kept at the ready for the payment of future medical expenses. The Act also provides for hefty penalties if the provisions are not followed.

In his presentation and materials, Attorney Lutz explains while there is a growing movement to expand this program of Set-Asides from the worker's comp arena to the litigation arena, it is currently only a rare occurence in Pennsylvania that the issue is raised in the litigation context. However, if Medicare's budgetary problems continue, it is anticipated that the Set-Asides may become a mandatory requirement in third party matters.

Currently, it does not appear to Attorney Lutz that there are any express requirements that Plaintiff's attorneys create any Medicare Set-Aside plans (MSAs) to date. As long as a liability settlement does not specifically delineate some of the monies to future medical care, then no amount of the settlement would appear to be covered by Medicare's efforts to recover for future medical expenses.

Attorney Lutz cautiously concludes, however, that since we are proceeding in "unchartered waters" in the absence of any specific guidance from the applicable law, there is no "safe harbor" course of conduct currently established for litigants to avoid Medicare's reach on this issue.

Update on Bad Faith Law

The hot topic in the bad faith arena is the settlement of a class action lawsuit out of the Miller County trial court in Arkansas involving UM/UIM policies under Allstate and CNA auto policies. The case involved allegations that, between January 1, 1994 and February 19,2009, those companies underpaid claimants by using computer programs such as Colossus, Claims Outcome Advisor, and/or Injury IQ to evaluate cases. Despite settling the suit, the carriers denied that they underpaid claims and asserted that their use of these computer programs was proper.

More detailed information on this settlement, and whether a claim you previously concluded may be covered by it, can be found at

James Ronca, Esquire on 18 Wheels and 2 Wheels--Some insights into non-automobile vehicle cases

The always energetic and entertaining Attorney James Ronca provided some nice, informative samples on conducting depositions in trucking accident cases. He also provided primers on how to handle and approach bicycle accident cases and motorcycle accident cases. Many great tips were gathered from his presentation.

Koken Update, UM/UIM Update

The case updates in the Koken area confirmed that there have not been any more recent significant cases handed down recently other than those cases reviewed in the blogs noted below, particularly with respect to the trial courts allowing UIM and third party cases to proceed in a consolidated fashion under one caption under the rationale of judicial economy.

During this portion of the program, noted Plaintiff's attorney Scott Cooper and noted defense attorney James Haggerty faced off with varying points on the important UM/UIM cases over the past year or two, such as the Sackett cases, the Generette case, and others. As these two attorneys were personally involved in the cases discussed, they were able to to an excellent job explaining the ins and outs of how these cases came to be as well as the implications of those decisions on future UM/UIM cases in a readily understandable way.

A highlight of the Koken portion of the program was a presentation by Judge Robert Colville of the Allegheny County Court of Common Pleas and Plaintiff's attorney Sean Carmody who worked one of state's first post-Koken-like cases. The defense counsel was unable to make it to the discussion.

The UM claim that they tried before a jury involved an out-of-state State Farm policy that did not have an arbitration clause.

The judge noted that he viewed the case as a contract dispute between a carrier and its insured, with the case having many tort concepts to consider. With the agreement of counsel, the court openly and honestly explained to the jury the nature of the contract dispute between the claimant and State Farm Insurance Company as a defendant. The court advised the jury that the carrier had a duty to provide the coverage or benefits available under the insurance policy where warranted.

During voir dire, defense counsel was permitted to ask basis questions such as whether the jurors had ever had a claim against a carrier and whether their experience was good or bad.

Plaintiff's attorney was allowed to present a theory of the case during the opening statement of corporate vs. the little guy, insurance company vs. the little insured, etc., as well as argue the claimant's position that he had paid an premium for these UM benefits and that the claimant felt that he was entitled to an award under the circumstances presented in this case involving a DUI tortfeasor. Plaintiff's counsel noted that the defense counsel took pains to separate State Farm from the DUI tortfeasor (who was not present at the trial).

Plaintiff's counsel noted that the defense went through the trial with an empty chair and the claims rep in the back of the courtroom. Plaintiff's counsel only called the claims rep as a witness for a brief and limited purpose during trial.

The issue of the declarations page, or other information on the available limits, did not come into play given the plaintiff's counsel's strategy of not offering that info to the jury in order to avoid any potential preconceived notions as to the value based upon the coverage.

I believe it was indicated that the verdict came back in the high six figures range, but that would have to be confirmed.

All in all, it was a very informative day with six CLE credits in the bank, followed by a few innings of the Phillies at the Citizen's Bank Stadium under a perfect night for baseball.

Monday, May 25, 2009

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.

Wednesday, May 20, 2009

Unofficial 2009 Judicial Primary Election Results

Lackawanna County

After the primary vote on one judicial seat, Margaret Bisignani-Moyle took the Democratic nomination and Frank Castellano took the Republican spot. Both are long-time assistant district attorneys with little civil litigation experience during their careers of fighting crime. President Judge Harhut has not indicated what types of cases the new Lackawanna County Judge will focus on, but it is clear that another civil court judge is needed as the trial date backlog is up to a year to 18 months to get a trial date in this county.

Luzerne County

In Luzerne County 17 candidates were running for two spots. District Magistrate William Amesbury took the top spot on the Democratic side with Tina Polachek-Gartley coming in second. On the Republican side, Richard Hughes took the top spot and the cross-filed William Amesbury came in second. One local news article has indicated that Judge Amesbury's dual nomination effectively matches Attorney Hughes against Attorney Gartley in the November 3 general election.

Monroe County

Dickinson Law School grad, Jennifer Harlacher Sibum, secured both the Democratic and Republican spots in the primary for Monroe County Judge.

Wyoming/Sullivan County

Attorney Russell Shurtlef secured both the Democratic and Republican top spots in the primary for common pleas court judge in Wyoming/Sullivan County, taking over the spot long and held by retiring from the bench Judge Brendan Vanston.

Tuesday, May 19, 2009

In Case of First Impression, Superior Court Holds Plaintiff May Withdraw Rule 1311.1 Stipulated Cap on Damages

Dolan v. Fissell, 2009 WL 1165394 (Pa.Super. May 1, 2009)

In a case of first impression, the Pennsylvania Superior Court ruled that a stipulation entered into by the parties under Pa.R.C.P. 1311.1 limiting a plaintiff's maximum damages to $25,000 can be withdrawn by the plaintiff at the discretion of the court in certain circumstances.

Rule 1311.1 provides that, in a trial on appeal from an arbitration award, the plaintiff may enter into a stipulation to cap his or her damages at $25,000 in exchange for an agreement that the plaintiff may proceed to trial on expert reports in lieu of their testimony. The purpose of the Rule is to allow the plaintiff to avoid high expert witness fees in smaller cases. The Rule does not state whether or when such a stipulation can be withdrawn.

In the Dolan case, the plaintiff was injured in a car accident and eventually received an arbitration award in the amount of $28,220.00, from which the defendant filed an appeal. The plaintiff then filed a Rule 1311.1 stipulation to the court limiting her jury trial damages to $25,000 thereby allowing her to proceed on expert reports as opposed to testimony, thereby saving the plaintiff substantial costs at trial.

Plaintiff's counsel thereafter sought to withdraw the stipulation on the grounds that he was unaware that an approximately $8,200.00 property damage claim would have to be considered to be within the $25,000 cap. The trial court allowed the stipulation to be withdrawn over the defendants objection. The jury eventually whacked the defendant with a verdict in favor of the plaintiff in the amount of $434,757.25. The defendant appealed on the primary grounds that the trial court erred in allowing the withdrawal of the stipulation.

On appeal, the Superior Court unanimously held that the trial court had the discretion to allow the plaintiff to withdraw the Rule 1311.1 stipulated cap on damages for good cause and provided that there was no substantial prejudice to the defendant. In this case, there was no prejudice to the defendant present as the trial court had continued the trial twice, in part, to provide the defense with an opportunity to fully prepare its case in light of the changed circumstances.

Monday, May 18, 2009

A Look Ahead: President Obama Expresses Thoughts on Selection Criteria for Next United States Supreme Court Justice

The article below, by Charles Babington of the Associated Press and copied from the May 18, 2009 Times Leader newspaper from Wilkes-Barre, outlines President Obama's philosophy in terms of choosing the next United States Supreme Court Justice to replace Justice Souter. It looks like, after years of a rightward direction, the pendulum of the Court's decisions may start swaying more to the left someday down the line.

May 18

‘Empathy’ in judge divisive:
GOP senators interpret Obama’s comments on high court nominee as code for activist, partisan jurist.

by CHARLES BABINGTON Associated Press Writer

WASHINGTON — As a senator, Barack Obama said President George W. Bush’s Supreme Court nominees John Roberts and Sam Alito were clearly qualified. He voted against them anyway.

In a series of votes and speeches more than three years ago, Obama strongly defended a senator’s right to oppose high court nominees because of their philosophical and political views, not just on the narrower grounds of character and temperament.

Republican senators might cite Obama’s actions if they decide to make a serious stand against the current president’s eventual choice to replace retiring Justice David Souter.

But conservatives will find less comfort in the more important details of Obama’s comments from 2005 to 2007 about the Supreme Court. That’s when he outlined the type of justice he wants: someone with a heart as well as brains, who empathizes with the downtrodden and is wary of the establishment’s power.

Obama used almost exactly the same language this month. “I will seek someone who understands that justice isn’t about some abstract legal theory,” he said. He wants someone with “that quality of empathy, of understanding and identifying with people’s hopes and struggles.”

Such language worries many conservatives.

If a justice relies on empathy, then “politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law,” GOP Sen. Orrin Hatch of Utah said recently on ABC’s “This Week.”

The key question for nominees is will they be “fair to the rich, the poor, the weak, the strong, the sick, the disabled?” asked Hatch, a longtime member of the Senate Judiciary Committee, which reviews Supreme Court nominations.

As a senator, Obama said he felt Bush’s nominees were too quick to side with the rich and powerful.

Roberts, now chief justice, was qualified and talented enough for the court, then-Illinois. Sen. Obama said in a September 2005 speech. But Roberts, he said, “has far more often used his formidable skills on behalf of the strong in opposition to the weak.”

The young senator said he probably would have no trouble with Roberts’ rulings in 95 percent of the high court’s cases. But “what matters on the Supreme Court is those 5 percent of cases that are truly difficult,” when “legal process alone” will not suffice, Obama added.

“That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy,” he said. “In those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

Hatch said that emphasis on a nominee’s “politics, feelings and preferences” raises red flags. “Those are all code words for an activist judge, who is going to, you know, be partisan on the bench,” Hatch said.

Obama and his fellow Senate Democrats were in the minority in 2005, and some liberal groups implored them to try to block Roberts with a delaying tactic known as a filibuster. Obama called the idea “a quixotic fight” that he would not support.

Four months later, however, he joined a futile Democratic effort to block Alito’s confirmation with a filibuster.

“I have no doubt that Judge Alito has the training and qualifications necessary to serve,” Obama said in a January 2006 speech in the Senate chamber. But he said he was “deeply troubled” because Alito as a federal judge “consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American’s individual rights.”

As a presidential candidate, Obama continued to stress the plight of people who lacked advantages when dealing with powerful people and institutions.

In November 2007, he said the Supreme Court should “protect people who may be vulnerable in the political process: the outsider, the minority, those who are vulnerable, those who don’t have a lot of clout.”

“If we can find people who have life experience, and they understand what it means to be on the outside, what it means to have the system not work for them, that’s the kind of person I want on the Supreme Court,” he said.

At a different campaign appearance that year, Obama said: “We need somebody who’s got the heart to recognize, the empathy to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”

Because there are only 40 GOP senators today, Republicans have little chance of blocking Obama’s eventual nominee. That hasn’t stopped conservative groups from urging senators to sharply question the judicial philosophies of the president and his nominee.

For example, the Committee for Justice says on its Web site: “The next Supreme Court nominee must be asked whether they share the president’s decidedly activist view that judges should consider, not just the law and facts, but also empathy for certain classes of people, including African-Americans, the poor, gays, and the disabled.”

The commentary in other articles on the topic of the next selection mainly predict that the nominee will be a woman, particularly since President Bush replaced Sandra Day O'Connor with a man, Justice Alito. It is also anticipated that the nominee will be relatively young so that they could spend a decent amount of time on the Court in the hopes that they would counter the decisions of the relatively youthful Chief Justice Roberts and Justice Alito.

Thursday, May 14, 2009

Recent Cases of Note From Around the Commonwealth

According to the May 11, 2009 Pennsylvania Law Weekly, the following cases were the most frequently requested from the Law Weekly's Pennsylvania Instant Case Service (PICS) last week. See 32 PLW 521 (May 11, 2009). Copies of the opinions can be secured from the Law Weekly by calling 1-800-276-PICS and providing the PICS numbers indicated.

Minto v. J.B. Hunt Transport, Inc., PICS Case No. 09-0650(Pa. Super. April 17, 2009)
Klein, J.; Gantman, J. concurring (10 pages).

Superior Court held that the rule pertaining to the exclusivity of a workers' compensation recovery for an employee's injuries, did not bar an employee’s claims that his employer's destruction of evidence impeded his products liability claims against the manufacturer of a truck he was driving.

Schaub v. Trainer’s Inn, PICS Case No. 09-0598 (C.P. Carbon Feb. 17, 2009)
Nanovic, J. (19 pages).

An excellent analysis of the proximate causation/foreseeability issue in negligence cases. A bar’s serving of liquor to a visibly intoxicated underage patron was found not to be the proximate cause of that patron’s excessive violence in a fight outside the bar in which the patron beat another to death with a baseball bat.

Wilmington Steel Processing Co. v. Citisteel USA, Inc., PICS Case No. 09-0456 (C.P. Philadelphia, Commerce Program (Jan. 27, 2009)
Abramson, J. (15 pages).

Analysis of claim for tortious interference with existing and prospective contracts.

Berrier v. Simplicity Manufacturing, Inc., PICS Case No. 09-0692 (3d Cir. April 21, 2009)
McKee, J. (73 pages).

The Third Circuit predicted that, under certain circumstances, the Pennsylvania Supreme Court would adopt Restatement (Third) of Torts, §§ 1 and 2 and thereby allow bystanders to pursue a cause of action in strict liability.

Medallis v. Northeast Land Development, LLC, PICS Case No. 09-0494 (C.P. Lackawanna Dec. 4, 2008)
Minora, J. (14 pages).

Lackawanna County Court of Common Pleas Judge Carmen Minora held that a developer can be found liable for storm water runoff even where his water runoff system met minimal regulatory requirements.

Anyone aware of any other trial court opinions on post-Koken issues?

Following up on the most recent post below in which it is noted that, in the absence of any appellate decisions to date, the trial courts of Pennsylvania will have to rely upon each other for guidance in handling the novel post-Koken issues, I am wondering if anyone has had any trial court opinions issued in a post-Koken UIM/UM case.

If so, I would ask if you could please post a comment (click on the word "comment" below), and note the case name, court of common pleas and judge involved, docket number, attorneys involved, basic facts of the case, a description of the court's decision and, if available, any citation.

Also, if you are in possession of a post-Koken decisions that have not been published, I would appreciate it if you would please send me a copy and I will see if there is a way I can post it on this blog.

As noted in the articles cited in the previous post, the only way this law area of law is going to be developed in a consistent fashion so as to enable counsel to approach, handle and offer legal advice on these issues with any certainty is if we get a sense as to how the trial courts are ruling through a review of their opinions. Thanks to anyone offering information in this regard.

Wednesday, May 13, 2009

Superior Court Quashes Chance to Review its first Post-Koken case

In its recent April 15, 2009 opinion in Gunn v. Auotomobile Ins. Co. of Hartford, 2009 WL 1001029 (Pa.Super. 2009), the Superior Court refused an opportunity to address a post-Koken UIM case for the first time on the grounds that the appeal before them had to be quashed given that the trial court order appealed from was not a collateral order that was subject to a permissible appeal.

In the underlying case, the Plaintiff was pursuing a combined UIM claim and bad faith claim under a single caption in a post-Koken case where the Plaintiff's UIM policy called for a lawsuit to pursue that claim as opposed to an arbitration.

Allegheny Court of Common Pleas Judge R. Stanton Wettick Jr. implicitly held in his related trial court opinion in this matter that underinsured motorist coverage and separate bad faith claims may be consolidated under one caption but that courts faced with such joined claims should have the UIM case decided first by a jury followed by a bench trial on the bad faith claim. In the trial court's opinion, found at Gunn v. Automobile Insurance Co. of Hartford, PICS Case No. 08-1266 (C.P. Allegheny July 25, 2008), Wettick denied Hartford's motion to stay discovery related to the bad faith claim until the plaintiff's UIM claim could be decided.

In essence, the court ruled that a piecemeal approach of the various claims arising out of a single motor vehicle accident would not be tolerated by the already overburdened state trial court system.

In quashing the appeal, the Superior Court in Gunn acknowledge the carrier's argument that the appeal should be heard in light of the fact that "the insurance industry is pervasively dropping the mandatory arbitration clause from the standard insurance policy" and, as a result, "the courts in the Commonwealth of Pennsylvania are very likely to be inundated with cases in which insureds who have yet to demonstrate any entitlement to [UIM] benefits, will join their UIM claim with statutory bad faith claims."

Yet, in weighing this public policy argument against the cost to the Superior Court in having to undertake piecemeal reviews of non-final orders from the trial courts, the Court felt that the public policy argument was not sufficiently compelling enough to tip the balance in favor of allowing this appeal to go forward. As such, the Court entered an Order quashing the appeal for this reasons and for various other related reasons noted in the opinion.

It therefore appears that the trial courts will have to continue to work, without appellate guidance, in their efforts to address the novel issues arising in these post-Koken cases currently working their way through the system.

For a more detailed discussion of the issues faced by the trial courts in this regard, please see my Pennsylvania Law Weekly article from October of 2008 entitled "Here Comes Hurricane Koken" and my follow-up November of 2008 Pennsylvania Law Weekly article "Nothing to Fear But Fear Itself: Prior decisions in consolidated cases provide guidance for post-Koken issues."

Other articles of mine may also be found by clicking on their title in the JDSupra box on the right side of this blog or by visiting my profile at

Lessons from the Godfather Trilogy

The following article of mine, which first appeared in the August 29, 2005 Pennsylvania Law Weekly, applies famous quotes from the Godfather movies as golden nuggets of practical advice for lawyers in their handling of cases. I thought I would give it another run here given the previous enthusiastic response to the article and the later CLE seminar I gave on a few occasions on the same topic. Hope you enjoy it.

What I Learned From the Corleone Family:
Lawyers can find universal principles and practical advice in The Godfather films

By Daniel E. Cummins, Special to the Law Weekly

Few movies are as revered or have reached the iconic status in American culture as the movies that make up The Godfather trilogy. Obviously, the brilliant acting by numerous icons of American cinema and Francis Ford Coppola's direction play the major part in achieving that status. But perhaps even more appealing is the writing, which has generated many lines that can be considered not only quotable but also, in a broader sense, universal principles of life.

These universal principles are applicable to all walks of life from the mob underworld to our noblest of professions and can provide practical instruction to all who are open to such advice. An application of some of these universal principles to the practice of law offers some sound advice and instruction.

"It's not personal, Sonny. It's strictly business." Michael to Sonny in The Godfather

There may be nothing more important to the practice of law than the principle that decisions to be made should never be motivated by personal or emotional animus, but rather should always be the result of a sound, objective, business-like decision-making process. All too often, attorneys take the actions and adverse positions of opposing counsel personally and retaliate without first thinking through and formulating an appropriate response on an objective basis and in accordance with the law and facts of the case.

The practice of law has unfortunately deteriorated to the absurd and reprehensible extent that formal written rules of civility are apparently required in an effort to maintain order between counsel. It is questionable as to whether any other profession has or requires that basic rules of civility and courtesy be formally acknowledged or, worse yet, put in writing. A reason that such written rules may have become necessary for attorneys is that counsel are indeed ethically required to be zealous advocates for their client's causes of action, which, in turn, can unfortunately invite emotions and personal animosity into the decision-making process and in dealings with opposing counsel. The key, of course, is to rise above such personal issues and emotions and keep handling matters in a strictly business-like manner.

Litigating attorneys should also never take on the emotional trappings of their clients and should never let their personal opinions of opposing counsel or the quality of that attorney's case get in the way of an objective application of the law to the facts of the case presented. In the big picture, attorneys are the representatives of their respective clients who are engaged in a dispute that cannot be resolved amicably. The pros and cons of a case cannot be properly and professionally evaluated if one's judgment is clouded by emotionally charged and negative feelings toward another attorney, that attorney's client, or that attorney's case or argument. Accordingly, if you find yourself unable to separate yourself from an emotional opinion of the case, it may be wise to run the case by another attorney or, even better, a lay person for a fresh and objective viewpoint.

It is particularly important to remain objective when evaluating cases for settlement purposes and in engaging in settlement negotiations. Emotions have no place during settlement negotiations but can run high and get in the way of an objective evaluation of a case's range of value. Ultimately, in all cases, it's not personal, it's strictly business.

"Never hate your enemies – it affects your judgment." Michael to Vincent in The Godfather, Part III

A corollary to the general rule that negative emotions should have no place in the litigation process is that one should never allow matters to get personal with the opposition. When one allows their emotions to intrude into their dealings with opposing counsel, the ability to evaluate any and all issues that arise is clouded by such negative feelings.

As difficult as it may be, one must attempt to disassociate and cut out any negative feelings or animosity (even when such emotions may be warranted under the circumstances) toward opposing counsel, an opposing client, a judge or whomever one is dealing with. Only then can a proper evaluation and handling of the issue or case be completed.

For example, some attorneys may feel they are being personally attacked when they are presented with a motion to compel discovery responses. Obviously, in cases where there are no objections at issue, it must be considered that the motion may be warranted as such a motion would not have been necessary if the discovery responses had been timely produced. Consideration should also be given as to whether the attorney filing the motion was compelled to do so by a superior in his or her firm or by the client.

In terms of the attorney filing a discovery motion, it is obviously always good practice whenever possible to send a warning letter to opposing counsel of the intention to file a discovery motion at least 20 to 30 days ahead of time so as to allow time for the response to be produced. It is also good practice to agree to select another day to present the motion if the date selected is not good for the opposing counsel. In the end, all efforts should be made to resolve the discovery issue before burdening the court with petty and tangential issues to decide.

With all issues presented by a case, although sometimes easier said than done, one should not allow an emotional viewpoint to cloud one's evaluation of the case presented. This is not to say that an attorney shouldn't be passionate or should refrain from forcefully presenting her position on the case at hand. The key, rather, is to attempt to prevent any clouding of judgment by an emotional response to the case whether it be a positive or negative response. After all, remember what happened to Sonny Corleone when he allowed his emotions to cloud his judgment and get the best of him.

"Keep your friends close, but your enemies closer." Michael to Pentangeli in The Godfather, Part II

No advice may be as difficult to heed than the caution to keep your enemies or adversaries close. Unfortunately, there are some adversaries in the practice of law who thrive on petty confrontation and routinely taking matters to a personal, negative and vexatious level. Such attorneys seem to enjoy attempting to push the buttons of opposing counsel and disrupting the normally smooth handling of cases. While there is no place in the practice of law for such boorish behavior, there is usually no recourse against the same, and one must be prepared to deal with such attorneys effectively in order to provide his clients with the representation they are entitled to.

Fortunately, these types of attorneys are the exception and not the norm. It is best to remember that typically these troublesome attorneys are lacking in an important quality of some sort, whether it be of some personal nature or an inability or unwillingness to do the work required by the case, including but not limited to researching and understanding the applicable law and rules of procedure. Perhaps out of an unconscious fear or some feeling of inadequacy, such attorneys may be compelled to lash out and attempt to compensate in negative ways designed to deflect attention from these deficiencies by engaging in personal attacks or making the litigation process unnecessarily difficult. While the inherent notion of self-preservation compels us to steer clear of such attorneys wherever possible, we inevitably have to deal with them when a case calls upon us to do so.

One way to deal with such "enemies," or all adversaries for that matter, is to keep them close. This can best be accomplished by knowing the facts and the law of the case better than your adversary does. To get a quick initial grasp of the law of a case, one can turn to the Pennsylvania Law Encyclopedia. In terms of an analysis of almost all substantive and procedural issues that may arise in civil litigation, there is no better resource than Stephen Feldman's The Pennsylvania Trial Guide. Cases on point with yours may be found in the more specific Negligence Instant Case Finder by Glenn A. Troutman. Furthermore, in automobile accident and insurance litigation, one can quickly secure an understanding of the applicable law from a review of Milford Meyer's Pennsylvania Vehicle Negligence and Pennsylvania Motor Vehicle Insurance 2d., by James R. Ronca, Leonard A. Sloane, David L. Lutz and Timothy A. Shollenberger, and edited by Bill Mabius.

In terms of the Rules of Civil Procedure and forms related thereto, there are no better resources than Goodrich-Amram 2d Procedural Rules Service With Forms and Dunlap-Hannah Pennsylvania Forms.

By having a full understanding of the facts and knowing the applicable law and rules of procedure at the commencement of a case, one can more effectively control a vexatious opposing counsel and move the case forward to its inevitable conclusion, whatever that may be. It is important to also remember that a case can only move forward by keeping opposing counsel close with continued communication.

As aggravating as opposing counsel may become in such dealings, it is best to remain in control of your own emotions and hit them with kindness, good humor and rational explanations supporting your position. Always confirm everything in writing with these types of attorneys as a further method to keep them under control. Again, a positive way to view such a difficult situation is to remember that each communication will move the parties one step closer to the eventual resolution of the case, at which point you will no longer have to deal with that attorney.

Thus, as enjoyable as the practice of law may be with your colleagues, the real challenge of the profession is to see your client's case through to its desired and just end by keeping your adversaries close and under control.

"Fredo, you're my older brother and I love you. But don't ever take sides, with anyone, against the family again. Ever." Michael to Fredo in The Godfather

The Rules of Professional Conduct require counsel to put their client's interests above all others in accordance with the law. An obvious principle, as expressed by Michael Corleone to his brother Fredo, is that one should never take actions or positions detrimental to the interests of the client unless, of course, you are ethically required to do so. Additionally, although the opposing case or client may be sympathetic, attorneys are ethically bound to put such emotions aside and to evaluate cases on an objective basis in the best interests of their own client. Expressions of doubt and/or a lack of confidence shown by an attorney in his or her own client's theory of the case or argument can be damaging and, at times, fatal.

A consequential benefit of an unwavering loyalty, confidence, and belief in your client and his or her cause of action is credibility in the eyes of opposing counsel, the judge, and/or the jury. If an attorney does not publicly and convincingly exhibit his or her own belief in the client's case, no one else will. Credibility of the attorney and of the case presented will also be enhanced by raising and explaining away any weaknesses of the case as opposed to attempting to hide or ignore the same.

Furthermore, part of fully representing your own client is placing yourself in the shoes of opposing counsel and immersing yourself into the facts of the case and the theory of the case from the other side's perspective. Unless and until you do so, you cannot fully appreciate the strengths and weaknesses of your own case.

Accordingly, when preparing your client for a deposition or trial testimony, you should submit the client to a possible cross-examination in an effort to prepare him or her for the same. While preparing for any oral argument for the court, one should first prepare the argument for your own client, and then compose the argument for the opposition. Only by doing so, can one see and address the problems and weak points in your own argument. Additionally, at oral argument (and at closing argument at trial), it is wise to end your argument by advising the judge of the opposing arguments that you anticipate will be made and then explain to the judge why such arguments should be rejected. In doing so, you will raise your credibility by showing that you are not steadfastly and blindly presenting only your side of the case, but rather presenting both sides of the case and attempting to convince the court or jury why your client's position is the fair and just position.

"I'm gonna make him an offer he can't refuse." Don Corleone to Johnny Fontaine in The Godfather

In terms of settlement negotiations, it may be said that you can not sell something to someone they do not want to buy. When negotiating with opposing counsel, one should again put themselves in the position of that opposing counsel or client and attempt to frame any settlement offers in the best light from that perspective.

For example, the value of settling a case now as opposed to after many more months of litigation or awaiting an opening in the court's schedule for a settlement conference or trial can be emphasized. The benefit of settling sooner in terms of interest on the settlement money or the effect on the potential for delay damages can be raised. Where the parties are engaged in a non-binding mediation and have reached an impasse, perhaps the offering of paying for the mediator's services by one party can spark further discussions to an ultimate resolution. By thinking of settlement from the other party's perspective and being creative and positive in framing your settlement offers, one may be able to effectuate a settlement of a case within one's range of value.

In trying to settle a case, it must be remembered that emotions have no place in negotiations. If at all possible, check any emotions generated by the case or your interactions with the opposition prior to entering into any settlement negotiations. All attempts should be made by both parties to participate in the settlement discussions in the most objective and business-like manner possible.

Attorneys should also take steps to control their clients and attempt to convince their clients to also put their emotions aside and to view the case in a business-like manner and in accordance with the attorney's advice as to the value of the case. Your client's reasonable and fair settlement position should be established prior to commencing negotiations and, if you are not able to reach a resolution on your terms, the parties should simply move on to the next step in the litigation process. One way or another, the case will inevitably conclude at some point.

"I have always believed helping your fellow man is profitable in every sense, personally and bottom line." Michael to reporters in The Godfather, Part III

Although Michael Corleone may have issued this statement with a sense of irony, it cannot be denied that helping your fellow man is indeed profitable in every sense. In addition to assisting all of our clients with their legal matters, an attorney may also profit on a personal level by taking on a pro bono case within the scope of their expertise wherever possible. Typically, an attorney may have their name placed on a list in the county's pro bono office with an identification of that attorney's area of expertise. In most cases, the pro bono office may call an attorney when a matter comes within that attorney's area of practice and the attorney may consider whether or not to take such a case after a conflicts check. Obviously, the handling of a pro bono case is not only looked upon favorably by all, but is also personally gratifying.

Equally gratifying is the participation in and completion of volunteer activities in the community. There is never a lack of opportunities to do so whether such volunteer participation be needed by the Young Lawyers' Division of your county bar, your church, your town, or any other entity.

In addition to the altruistic reasons in support of volunteering in the community, such activities have the consequent benefit as a source of networking and advertisement. By participating in charitable activities, one can come to know many different people as well as have your name or your firm's name disseminated to the public in a positive light. Participation in such activities may also go a long way in slowly but surely improving the always tarnished public image of attorneys.

Ultimately, by participating in volunteer activities and helping your fellow man, one can obtain a great sense of accomplishment and personal fulfillment comparable to none.

"[A] man who doesn't spend time with his family can never be a real man." Don Corleone to Johnny Fontaine in The Godfather

While the demands and pressure to bill an exorbitant number of required hours or to spend many hours developing plaintiff's cases is great in the practice of law, there is no opportunity to replace missed moments with one's family. Many an experienced attorney with grown children have lamented the times they missed when their children were infants and toddlers and the times they could not make a little league game or recital all because they were so engrossed with the practice of law. Life is short and there are no second chances to recover such priceless moments.

Whenever possible, a balance between work and life outside of work should be sought and encouraged. An attorney who spends most or all of his waking hours in the practice of law runs the significant risk of becoming a one dimensional person and ultimately burning out. It can be said that attorneys who develop their life outside of the practice of law, particularly with their families, but also in terms of their hobbies, recreational activities, and in exploring creative outlets, are more apt to have a higher productivity level when it comes to work.

Obviously, the practice of law is an extremely stressful 24/7 profession. Some attorneys proudly (and sadly) boast that they rarely take time off from work. Such an attitude may prove counter-productive in the end. Spending and enjoying more time with one's family will tend to serve as a release from the pressures of work and lessen one's overall stress level which, in the end, results in a more healthy lifestyle overall. A more healthy lifestyle, in turn, may render you a more productive and efficient attorney. In the end, all aspects of your life both in and out of work will benefit.


An understanding and application of the universal principles enunciated by the great characters in The Godfather Trilogy to one's practice can improve one's abilities and may also serve to ease the stress generated by the profession. All in all, with the practice of law as demanding as it is in and of itself, an effort should be made by attorneys to deal with each other in an objective and professional manner without descending into personal animosity and attacks. Ideally, we should treat others as we desire to be treated and should maintain positive arguments supported by the law and facts of the case as opposed to attempting to pursue or defend a claim through negative and emotionally charged tactics or personal attacks. In the words of Clemenza from The Godfather, we should metaphorically, "Leave the gun. Take the cannoli." In the end, by leaving behind a negative or personal handling of a file and instead taking positive business-like approach to all cases, the practice of law as a whole will benefit.

This article is reprinted here, with permission, from the August 29, 2005 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

Tuesday, May 12, 2009

Third Circuit Addresses Sackett UIM Stacking Waiver Form Issue

In an opinion handed down today, May 12, 2009, in the case of State Auto Insurance v. Pro Design, No. 08-3006, the Third Circuit Court of Appeals considered the question of whether new UIM stacking waiver forms must be completed each time an insured adds a vehicle to what was originally a single vehicle policy.

In this case, State Auto Insurance Company filed suit seeking declaratory judgment that insured, who had signed waiver of intra-policy stacking at time he purchased single-vehicle insurance policy, was not entitled to stacking of underinsured motorist (UIM) coverage for accident occurring after additional vehicles were added to policy. The carrier filed a motion for summary judgment.

The District Court, James M. Munley, J., had ruled in favor of the insured, holding that addition of more vehicles to what had been single-vehicle policy was a purchase of multi-vehicle policy that required insurer to obtain waiver of intra-policy stacking. 559 F.Supp.2d 540 (M.D.Pa. 2008).

The Third Circuit reversed and remanded with instructions that summary judgment be entered in favor of the insurance carrier instead. In doing so, the Third Circuit predicted that the Pennsylvania Supreme Court would follow its 2007 Sackett v. Nationwide (Sackett II) decision, holding that the initial stacking waiver remains valid even with the addition of vehicles to a single vehicle policy. See Sackett v. Nationwide Mutual Insurance Co. (Sackett II), 940 A.2d 329, 331 (Pa. 2007).

Upcoming Continental Breakfast and Discussion with Dean Loren Prescott re Status of Wilkes Law School

On Thursday, May 21, 2009, at 8 a.m. - 9 a.m., the Association of Women Lawyers of Lackawanna County will be hosting a continental breakfast and discussion with Dean Loren Prescott of the Wilkes Law School Initiative. The event is open to the public and Dean Prescott is expected to discuss the plans and current status of the new Wilkes Law School.

The event is set to take place on the 5th floor of the University of Scranton's Brennan Hall in the Casey Conference Room. It has been requested that you RSVP to if you plan on attending.

I plan on attending this event and, if I am able to do so, I will provide information in a future post as to what was discussed.

Questionnaires Completed by Luzerne County Judicial Candidates Posted by Pennsylvania Bar Association

According to an article in the May 18, 2009 Pennsylvania Bar News, the Pennsylvania Bar Association recently contacted all seventeen judicial candidates in Luzerne County and requested that they fill out a questionnaire gathering biographical information. The completed questionnaires have been posted online for anyone to review at

Saturday, May 9, 2009

Case of note from most recent blue advance sheets for Atlantic Second Reporter

Bole v. Erie Insurance Exchange, 967 A.2d 1017 (Pa.Super. 2009).

HOLDING: Firefighter was actively engaged in a rescue at the time of his injury-causing motor vehicle accident, so as to support the application of the rescue doctrine and entitle him to recover underinsured motorists benefits.

This underinsured (UIM) arbitration case involved a volunteer firefighter who was seriously injured in his own automobile accident while en route to respond to another major motor vehicle accident elsewhere.

The firefighter pursued a UIM claim against his own carrier, Erie Insurance. The arbitration panel hearing the case accepted Erie's argument that the firefighter was not entitled to an award because his claim did not fall within the parameters of the rarely invoked "rescue doctrine."

The Erie County Court of Common Pleas then upheld the decision of the arbitration panel when it denied the firefighter's petition to modify the arbitrator's decision. The firefighter then appealed to the Superior Court which, in this 2-1 decision reversed the trial court's decision and remanded the matter for further proceedings.

In this decision, the majority opinion explains that the "rescue doctrine" was initially adopted over 100 years ago by the Pennsylvania Supreme Court in the 1900 decision of Corbin v. City of Philadelphia, 195 Pa. 461, 45 A. 1070 (Pa. 1900). In order to recover under this doctrine, the rescuer need only show that his acts were reasonably appropriate and performed in the exercise of ordinary care. See Bell v. Irace, 619 A.2d 365, 369 (Pa.Super. 1993); Pachesky v. Gates, 510 A.2d 776 (Pa.Super. 1986).

Noting that it did not have a transcript of the underlying UIM arbitration proceedings, the Bole court indicated that, while it may very well be the case that the facts did not support the application of the rescue doctrine, on the basis of the facts known, the Superior Court disagreed with the panel's decision that the firefighter was not actively engaged in a rescue at the time of his injury.

In so ruling, the court noted that the rationale of the rescue doctrine was to free a person who is injured while undertaking a rescue from the narrow standards of legal, proximate, or factual cause. The Bole court explained that the doctrine only applies when the person being rescued was legitimately perceived to be in risk of death or serious bodily injury.

Here, the firefighter had been dispatched to respond to a call that a car had rolled over and its occupants were trapped. This, the court felt, was indeed an emergency situation that risked death or serious bodily injury for the persons being rescued and thereby encouraged a rescue by another. Under the doctrine, until it was determined that the emergency had passed and there were no such risks present, the person going to the rescue should be considered to be actively engaged in a rescue in the context of the doctrine.

The Superior Court rejected Erie's argument that the firefighter's own accident was too attenuated to be considered to have been an active part of the rescue. Also rejected was the argument that the fireman's rule, which precluded recovery for "professional" rescuers in similar situations.

The case was remanded back down for further proceedings consistent with the opinion, including a requirement that the panel consider the additional factor of whether the fireman acted reasonably and with due caution when responding to the emergency.

In his dissenting opinion, Judge Fitzgerald agreed with the majority's decision that the fireman's rule did not apply but felt that the majority opinion unnecessarily expanded the definition of a "rescue" under the doctrine. As such, Judge Fitzgerald "reluctantly" concluded that, in his opinion, the firefighter failed to prove the applicability of the rescue doctrine.

Thursday, May 7, 2009

Interesting Upcoming CLE Courses

Pennsylvania Defense Institute CLE Program

Day at the Races: Key Insurance Law Issues for Claims Representatives
May 13, 2009
Hollywood Casino at Penn National Race Course
Grantville, Pennsylvania

PDI will host a program for insurance claim representatives and defense counsel on May 13, 2009 at the Hollywood Casino at Penn National Race Course in Grantville, PA. The "Day at the Races: Key Insurance Law Issues for Claim Representatives and Defense Counsel" offers a general session on identifying and satisfying liens in injury cases, an update of auto law in the post-Koken world, and a session on challenges for in-house insurance counsel. Three CLE credits are offered. Claims professionals are welcome and encouraged to attend. The program will be followed by a reception for the central Pennsylvania judiciary. Contact PDI for registration information. See for more information.

August 27, 2009
Mohegan Sun Casino
Wilkes-Barre/Scranton, Pennsylvania

PDI is also putting together a CLE program to take place on the afternoon of Thursday, August 27, 2009 at the Mohegan Sun Casino in Wilkes-Barre/Scranton, Pennsylvania. Topics and presenters are currently being considered. I hope to be one of the presenters at this seminar. Claims professionals are welcome and encouraged to attend. This program will also be followed by a reception with the Northeastern Pennsylvania judiciary. More information to follow as it comes out.

I plan on attending the below Annual Auto Law Update by the Pennsylvania Association for Justice in Philadelphia on May 27th. I'm turning it into a road trip with a couple of buddies and topping the all-day CLE off with a 7:05 p.m. Phillies game against the Florida Marlins. I'm missing Harry Kalas ("Here's the 3-2 pitch, swing and a long drive to DEEP left field, that ball is outta' here-homerun Michael Jack Schmidt!! That one got outta here in a hurry, Whitey.").

Pennsylvania Association for Justice

27th Annual Auto Law Update
Pennsylvania Convention Center, 1101 Arch Street, Philadelphia, PA
8:50 am - 4:45 pm
6 Substantive CLE Credits

First and Third Party Liability and Coverage Issues, Subrogation, Bad Faith, UM/UIM and Arbitration or Trial of UM/UIM after IFP v. Koken

Hot topics including significant issues which affect liability and damages in your auto case, including workers’ compensation issues, Medicare Set-Asides, Social Security offsets, C&R agreements, and workers’compensation DME’s

Statute of limitations and notice requirements in third party cases, UM/UIM claims, death cases, and municipal cases

18 wheels and 2 Wheels: Some insights into non-automobile vehicle cases - The most current techniques to analyze and handle accidents

Faculty: Hon. Robert Colville and Trial Lawyers - Sean Carmody, Scott Cooper, James Haggerty, David Lutz, Jason Matzus, Tim Riley, Frank Wesner, Jr., and Lisa M. B. Woodburn

Location: Pennsylvania Convention Center, 1101 Arch Street, Philadelphia, PA

An Old David Letterman Top Ten List Pertaining to Lawyers

I came across the following Top Ten List pertaining to attorneys while searching the Internet for video clips to include in a CLE presentation. Pretty funny.

The Late Show with David Letterman
Wednesday, June 03, 1998 Top Ten List

Top Ten Signs You've Hired a Bad Lawyer

10. Begins every sentence with "Well, as Ally McBeal once said...."

9. He keeps citing the legal case of Godzilla vs. Mothra.

8. Just before your trial starts he whispers, "The judge is the one with the little hammer, right?"

7. He thinks he'll win your case, "because there's a first time for everything."

6. He once failed to get a conviction of O. J. Simpson.

5. Whenever he says, "Your Honor" he makes those little quotation marks in the air.

4. Sign in front of law office reads "Practicing Law Since 2:45."

3. Begins by telling jury, "You all look like you should be on Jerry Springer."

2. Giggles every time he hears the word "briefs."

1. His phone number: 1-600-SHYSTER.

Wednesday, May 6, 2009

Continuing Consolidation of Post-Koken Cases

It has now been about four years since the Pennsylvania Supreme Court handed down its decision in the case of Insurance Federation of Pennsylvania v. Commonwealth, Department of Insurance (Koken), 889 A.2d 550 (Pa. 2005), holding that automobile insurance carriers were not required to include arbitration clauses in their policies for the resolution of underinsured and uninsured motorists claims.

Some carriers that have altered the language of their arbitration clauses to require the consent of both parties to submit the case to arbitration include AMICA, GEICO, Allstate, Harleysville, and Progressive. Carriers that appear to have totally eliminated the arbitration clause altogether include Nationwide, Erie, Liberty Mutual, Donegal, Keystone, and USAA, requiring claims against those carriers to be resolved by way of a lawsuit. State Farm has changed its arbitration clause to specifically mandate that all underinsured and uninsured motorist claims be resolved by way of a lawsuit filed in the court of common pleas.

Now as these cases involving many different types of claims that can arise out of a single car accident (third party, UIM, UM, first party benefits claims, bad faith, etc.) begin to work their way through the court system in Pennsylvania, many novel issues are arising and causing great uncertainty for the courts and the bar.

At least one issue has been clarified. Based on numerous decisions by various courts of common pleas in different counties, it can be safely stated that the trial courts will favor, and allow to stand, the consolidation of UIM claims with any bad faith claims against the involved insurance company along with any claims against the individual defendants who actually caused the accident, all under one lawsuit.

A number of the cases addressing this issue of consolidation of claims have come out of the Lackawanna County and Allegheny County Courts Court of Common Pleas. In Lackawanna County, Judge Carmen Minora allowed for the consolidation of a Koken-type case under Rule 213 in Decker v. Nationwide Insurance Co., 83 Pa.D.&C.4th 375 (2007). Senior Judge Harold A. Thomson, Jr., then sitting in Lackawanna County, offered a similar opinion in the case of Moyer v. Harrigan and Erie Ins. Exchange, No. 1684-CV-2008 (2008). Judge Robert Mazzoni also allowed for a UIM claim to proceed in a consolidated fashion with a bad faith claim in Augustine v. Erie Ins. Exchange,2006-CV-416 (2008).

Similarly, in Allegheny County, consolidation of various first party and third party claims has been approved by Judge Eugene B. Strassburger in Collins v. Zieler and State Farm, No. G.D. 08-014817 (2008) and Judge R. Stanton Wettick in the case of Gunn v. Automobile Ins. Co. of Hartford, PICS No. 08-1266 (2008).

These cases were reviewed in detail in my prior columns that appeared in the Pennsylvania Law Weekly entitled “Here Comes Hurricane Koken,” 31 PLW 1165 (October 27, 2008), and the 2008 year-end review of auto cases in “Negligence is in the Air…and on the Road,” 31 PLW 1380 (December 22, 2008).

Generally speaking, a review of the above cases indicated that the trial courts of Pennsylvania would be allowing for the joinder of these separate claims under Pa.R.C.P. 2229(b) (“Permissive joinder”) or Pa.R.C.P. 213 (“Consolidation….”). The underlying rationale is that since these post-Koken claims arise out of the same “transaction or occurrence,” i.e. the same motor vehicle accident and involve similar factual and legal issues, they should be consolidated under one lawsuit. It also appeared from these cases that the overriding principle of judicial economy, i.e. how the already overburdened trial courts would need to handle the impending glut of these new types of claims, would be an additional driving force influencing the courts’ decisions in the post-Koken cases.

More recently, on April 1, 2009, Judge Gregory H. Chelak of the Pike County Court of Common Pleas, issued a three page Order that reads like an opinion in the case of Jannone v. McCooey and State Farm, 2320-2008-Civil in which he joined the growing number of decisions allowing for the consolidation of the multiple claims available in a post-Koken automobile accident case.

In Jannone, the Plaintiff was involved in a motor vehicle accident in a school parking lot on February 15, 2008. At the time, the Plaintiff was covered by a post-Koken automobile insurance policy issued by State Farm. As noted above, that carrier had done away with the UIM arbitration clause and instead required the filing of a lawsuit for the pursuit of a UIM claim.

As such, the Plaintiff filed suit against the third party tortfeasor and State Farm as the UIM carrier under as single caption in the Pike County Court of Common Pleas. The third party tortfeasor, not wanting to be lumped in the same case with an insurance company in front of a jury, filed preliminary objections.

Judge Chelak quickly dismissed the defendant tortfeasor’s first assertion that the claims asserted against her should be dismissed in that they were “misjoined” with those claims asserted against the UIM carrier. Noting that there did “not appear to be any controlling appellate case law specifically addressing whether claims against a tortfeasor and UIM insurer may be joined in the same cause of action pursuant to Rule 2229(b),” Judge Chelak stated that the joinder of the claims would be allowed to stand under that Rule as the court was satisfied that the causes of actions against the defendant tortfeasor and State Farm arose out of the same occurrence of a single motor vehicle accident and involved similar factual questions. In denying this preliminary objection,, the Jannone court also alluded to the overriding principle of judicial economy and noted that the joinder of these claims would save judicial resources and avoid delays and expenses to the litigants.

Judge Chelak also rejected the alternative argument of the defendant tortfeasor that the claims against her should be dismissed because trying them along with the Plaintiff’s claims against State Farm would be unduly prejudicial as it would require the introduction into evidence of her own insurance policy.

In support of her argument, the defendant tortfeasor cited to Pennsylvania Rule of Evidence 411 which provides that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.”

Judge Chelak used Pa.R.E. 411 to instead support his decision to deny this preliminary objection. Judge Chelak found that, under the scenario presented in this Koken case, the defendant tortfeasor’s insurance policy would be relevant for the separate purpose of showing of State Farm’s liability, since State Farm’s UIM liability was dependent upon the amount of the defendant tortfeasor’s liability coverage. Note that it is settled law under Pennsylvania law, the UIM carrier is entitled to a credit in the amount of the tortfeasor’s liability policy before the UIM carrier has to pay out under its own policy.

According to Judge Chelak, it therefore followed that the defendant tortfeasor’s policy was “not inadmissible pursuant to Pa.R.E. 411” and, as such, he denied the defendant tortfeasor’s preliminary objection that it was unduly prejudicial to allow for this joinder of claims.

With this new area of law developing it is important that the courts and the bar attempt to publicize post-Koken decisions whenever possible. Surely, there have been other similar orders and opinions addressing important post-Koken issues handed down by other courts of common pleas across Pennsylvania that have gone unpublished or have not been otherwise publicized for the benefit of the bar. Perhaps the courts and counsel can bring these cases to the attention of others by submitting copies of the opinions to statewide organizations such as the Pennsylvania Bar Association (PBA), the Pennsylvania Association for the Advancement of Justice (PAAJ), and the Pennsylvania Defense Institute (PDI). In this way, the common law associated with post-Koken cases can be developed in a more uniform and consistent fashion under the doctrine of stare decisis.

Monday, May 4, 2009

An Update on Pike County Jury Verdicts

I recently began recieving copies of the Pike County (Pennsylvania) Legal Journal, a weekly publication pertaining to matters in that county located in the Northeastern corner of the state where Pennsylvania meets up with New York and New Jersey. Among the items reported on are jury verdicts. I have summarized the information on those recent verdicts for you below.

Please note that it is my intention periodically update you on the reportings of these Pike County verdicts as part our ongoing efforts to keep you apprised on how juries are evaluating claims in this rural county that has a continuing influx of former New York and New Jersey residents. Perhaps a knowledge of Pike County jury verdicts in civil litigation matters may assist you in coming to a proper evaluation of claims arising in that county and the other surrounding rural counties in that area.

To my knowledge, none of the other surrounding counties provide this information in their legal journals. Should that change, I will include that additional information in later updates.

In the meantime, I will reach out to the writers of the legal journals of Lackawanna and Luzerne Counties to see if there is any interest in providing such information on a regular basis. I will also suggest to the writers of the Pike County Journal that it may be helpful to provide the attorney information so that attorneys can contact them for more detailed information or even to send a note of congratulations (or sympathy!).

The information secured on the recent Pike County verdicts is, as follows:

(Updated 5/4/09)

No. 202-08-Civil
Verdict Recorded 4/17/09
The Plaintiff sought damages for injuries sustained in a motor vehicle collision which occurred in Milford, Pennsylvania. The Defendant stipulated that his own negligence caused the collision, but disputed the allegation that the collision was a factual cause of the Plaintiff ’s injuries. Specifically, the Defendant argued that the Plaintiff suffered from a pre-existing condition. Following a two-day jury trial, the jury found in favor of the Defendant.
Presiding Judge: Hon. Gregory H. Chelak, J.

No. 1304-06-Civil
Verdict Recorded 4/7/09
Plaintiffs filed a negligence action against Resorts USA d/b/a Fernwood Hotel for a slip and fall that occurred in December of 2005 on the walkway leading to one of the resort buildings. After checking in at the hotel, the Plaintiff drove to the building his family was assigned. While walking around the building, the Plaintiff slipped and fell on ice on the sidewalk. As a result of this slip and fall, the Plaintiff sustained a broke ankle and underwent two surgeries to repair it.

Following a two day jury trial, the jury found for the Plaintiff. More specifically, the jury concluded that the Plaintiff was 40% negligent and that the hotel was 60% negligent in causing the Plaintiff’s injuries. Without consideration of, or a reduction for the attributed percentage of causal negligence, the jury awarded the Plaintiff, $12,378.28 in medical expenses and only $2,500.00 for pain and suffering for a total award of $14,878.28.
Presiding Judge: Hon. Gregory H. Chelak, J.

Welcome to My Blog

Monday, May 4, 2009

Please allow me to introduce myself. I am a partner in the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins. I have about 15 years of experience, most of it in the insurance defense field. I have focused my practice on defending motor vehicle accident liability cases and UIM/UM arbitration matters along with premises liability and products liability cases. I am also routinely summoned by clients to handle matters involving insurance coverage questions and insurance subrogation claims.

I have also published many articles that have appeared in the Pennsylvania Law Weekly, the Pennsylvania Bar Quarterly, the Pennsylvania Lawyer magazine, and the Northeast Pennsylvania Business Journal. These numerous articles have analyzed and predicted trends in a wide variety of areas of civil litigation law and have also provided practice tips for fellow members of the bar.

More recently, at the request of the editors of the Pennsylvania Law Weekly, a statewide legal news publication, I became a regularly contributing columnist on civil litigation issues. Several of these articles have been recognized at the statewide Schnader Print Media Awards for their excellence in legal journalism.

Simply put, as a former English major at Villanova University who nurtured his love for the law and crafted his legal writing skills at the Dickinson School of Law in Carlisle, Pennsylvania, I enjoy analyzing and writing about trends in the law.

After reading many articles about the increasing number of attorneys blogging on the internet and seeing only a few which deal specifically with Pennsylvania civil litigation law, I thought I would take a crack at blogging as a complement to my column that regularly appears in the Pennsylvania Law Weekly (

The purpose of my blog will be to highlight trends and note important decisions in Pennsylvania civil litigation law. I may also periodically attempt to offer practice tips from my own experiences over the past 15 years of practicing. Through this blog I may also be able to bring to the attention of others little heard developments or verdicts occurring in the courts in the counties that make up Northeastern Pennsylvania.

As recommended in the articles on lawyer blogging, I will attempt to update the blog and review the site for questions and commentary several times a week whenever possible.

It is my hope that you will find this blog not only informative but entertaining at times. Thank you for taking the time to visit my blog. I hope you find it worthy of returning to on occasion for civil litigation updates.