Friday, January 29, 2010

Summary Judgment Secured in Declaratory Judgment Action On Proper Cancellation of Auto Policy for Non-Payment of Premium

I am hoping you won't mind me tooting my own horn a little on this blog of mine.

I recently secured a summary judgment decision in favor of my insurance company client in a declaratory judgment action on the issue of coverage in the case of Safe Auto Ins. Co. v. Soto, No. S-1361-2009 (Schuylkill Co., Jan. 26, 2010, Stine, J.).

This matter arose out of a motor vehicle accident that occurred on December 23, 2006 in Schuylkill County, Pennsylvania after which the Plaintiff filed a lawsuit against the Safe Auto insureds. The carrier denied coverage in light of the fact that, seven (7) months before the accident, the insurance company had cancelled the policy due to the insured’s failure to pay the premium.

The declaratory judgment action was filed against the insured defendants and the plaintiffs from the underlying action. This declaratory judgment action was opposed by the injured party plaintiff. However, when the tortfeasor defendants from the underlying matter, i.e. the named insured on the policy who failed to pay the premium and her permissive user of the vehicle, failed to respond to the Complaint, a default judgment was secured against those underlying defendants in this companion declaratory judgment action.

Thereafter, the motion for summary judgment was filed, which was opposed by the injured party plaintiff. Documentation required to satisfy the requirement of Pennsylvania law of showing that the proper notices had been mailed to the insured prior to the cancellation of the policy was gathered and presented as part of the motion. It was also established that there were no attempts by the insured to reinstate the policy at any time prior to the accident.

The injured party plaintiff attempted to argue that there were issues of fact and additional discovery that had to be completed before the court should address the motion for summary judgment. In granting the summary judgment the Schuylkill County Court of Common Pleas rejected the injured party’s arguments that there remained issues as to whether the carrier complied with Pennsylvania law in cancelling the policy, whether payments were made, and whether the insured had made any efforts to reinstate the policy.

The court accepted the defense argument that, under Pennsylvania law, the carrier was not required to show that the insured actually received the cancellation notices. Rather, all that was required here, as shown, was that the cancellation notices were issued to the address provided by the insured, which raised a presumption that the notices were received. The court also found the insureds’ failures to respond to the Complaint and the motion for summary judgment to constitute judicial admissions of the claims made by the carrier that proper notices had been provided. As such, it followed that no other party could dispute these claims.

Accordingly, a judicial declaration was secured for the carrier that it need not defend or indemnify the insureds in the underlying motor vehicle accident lawsuit brought by the injured party.

Anyone desiring a copy of this Opinion and Order may contact me at

The facts of each case are different. No specific results are implied for future cases. Descriptions of awards in previous cases are no guarantee of future results and should not create any expectations that my firm or I can achieve similar results in another case.

Thanks to the Creator of Holden Caulfield

J.D. Salinger, the author of The Catcher in the Rye, along with a great compilation of short stories called Nine Stories, as well as a few other published works, passed away on January 27, 2010. As a fan and a former English major I wanted to make mention of it. Not sure why. He probably would think I was a big ol' phony for doing so.

Anyway, here's some great qoutes from The Catcher in the Rye to remember him by:

If you really want to hear about it, the first thing you'll probably want to know is where I was born and what my lousy childhood was like, and how my parents were occupied and all before they had me, and all that David Copperfield kind of crap, but I don't feel like going into it, if you want to know the truth.
The Catcher in the Rye
Holden Caulfield in Chapter 1, opening words of book

I live in New York, and I was thinking about the lagoon in Central Park, down near Central Park South. I was wondering if it would be frozen over when I got home, and if it was, where did the ducks go? I was wondering where the ducks went when the lagoon got all icy and frozen over. I wondered if some guy came in a truck and took them away to a zoo or something. Or if they just flew away.
The Catcher in the Rye
Holden Caulfield in Chapter 1

What really knocks me out is a book, when you're all done reading it, you wished the author that wrote it was a terrific friend of yours and you could call him up on the phone whenever you felt like it.
The Catcher in the Rye
Holden Caulfield in Chapter 3

You could also hear old Ackley snoring. Right through the goddam shower curtains you could hear him. he has sinus trouble and he couldn't breathe too hot when he was asleep. That guy had just about everything. Sinus trouble, pimples, lousy teeth, halitosis, crumby fingernails. You had to feel a little sorry for that crazy sonuvabitch.
The Catcher in the Rye
Holden Caulfield in Chapter 5

"Would you care for a cigarette?" I asked her.
She looked all around. "I don't believe this is a smoker, Rudolf," she said. Rudolf. That killed me.
The Catcher in the Rye
Holden Caulfield in Chapter 8

She was terrific to hold hands with. Most girls, if you hold hands with them, their goddam hand dies on you, or else they think they have to keep moving their hands all the time, as if they were afraid they'd bore you or something. Jane was different. We'd get into a goddam movie or something, and right away we'd start holding hands, and we won't quite till the movie was over. And without changing the position or making a deal out of it. You never even worried, with Jane, whether your hand was sweaty or not. All you knew was, you were happy. You really were.
The Catcher in the Rye
Holden Caulfield in Chapter 11

'You know that song, "If a body catch a body comin' through the rye"?...'
'It's "If a body meet a body coming through the rye"!' old Phoebe said. "It's a poem. By Robert Burns."
The Catcher in the Rye
Holden Caulfield and Phoebe in Chapter 22

Anyway, I keep picturing all these little kids playing some game in this big field of rye and all. Thousands of little kids, and nobody's around - nobody big, I mean - except me. And I'm standing on the edge of some crazy cliff. What I have to do, I have to catch everybody if they start to go over the cliff - I mean if they're running and they don't look where they're going I have to come out from somewhere and catch them. That's all I do all day. I'd just be the catcher in the rye and all. I know it's crazy, but that's the only thing I'd really like to be.
The Catcher in the Rye
Holden Caulfield in Chapter 22

That's the nice thing about carrousels, they always play the same songs.
The Catcher in the Rye
Holden Caulfield in Chapter 25

All the kids kept trying to grab for the gold ring, and so was old Phoebe, and I was sort of afraid she'd fall off the goddam horse, but I didn't say anything or do anything. The thing with kids is, if they want to grab for the gold ring, you have to let them do it, and not say anything. If they fall off, they fall off, but it's bad if you say anything to them.
The Catcher in the Rye
Holden Caulfield in Chapter 25

Don't ever tell anybody anything. If you do, you start missing everybody.
The Catcher in the Rye
Holden Caulfield in Chapter 26, closing words of book

Third Circuit Court of Appeals Addresses Invasion of Privacy Suit Against Google Maps

On January 28, 2010, the Third Circuit Court of Appeals issued an Opinion that allowed a Pittsburgh couple's lawsuit to proceed against Google under allegations that agents of the internet company trespassed upon the couple's private property and posted photographs thereby secured of their home and swimming pool on the "street view" portion of Google Maps.

In Boring v. Google Inc., No. 09-2350 (3rd Cir. Jan. 28, 2010)(marked "Not Precedential" by the Court), the plaintiffs claimed that their 1,000-foot private driveway was clearly marked with a "No Trespassing" sign. Nevertheless, a Google driver allegedly disregarded the sign and entered their property in a vehicle equipped with a panoramic camera to take the photos that were uploaded onto Google Maps.

The suit was originally filed in the Allegheny County Court of Common Pleas but was removed to federal court by Google. There, a Western District Court Judge granted Google's motion to dismiss the case in which invasion of privacy, negligence, unjust enrichment, and trespass claims were asserted.

On appeal, the Third Circuit upheld most of the District Judge's dismissal but reversed the dismissal of the trespass claim. The trespass claim was remanded to the District Court for further proceedings.

A copy of the Third Circuit's Opinion can be viewed at

Source: Shannon P. Duffy. Article: "Third Circuit Oks Homeowners' Trespass Suit Against Google," The Legal Intelligencer, (Jan. 29, 2010).

Thursday, January 28, 2010

Joseph Cosgrove Sworn in as New Judge in Luzerne County

Attorney Joseph Cosgrove, 52, was sworn in as a new Judge on the Luzerne County Court of Common Pleas on January 28, 2009. He was in private practice since 1982 and appears to have focused his practice on the defense of criminal matters.

Judge Cosgrove is filling out former Judge Mark Ciavarella's term and is allowed to remain on the bench until that term ends in January of 2012. As such, Judge Cosgrove will essentially hold his position in all of 2010 and 2011.

The Luzerne County Court of Common Pleas still remains three (3) judges shy of its full complement of jurists. The seats of former judges Michael Toole (resigned after fraud charges filed), Peter Paul Olszewski (lost bid for retention in recent elections), and Ann Lokuta (removed by Judicial Conduct Board) remain open.

Monday, January 25, 2010

New Westlaw Citation for Recent Post-Koken Case: Mergert v. Stambaugh

I recently reported on the January 15, 2010 Opinion and Order in the post-Koken case of Megert v. Stambaugh, Erie Ins. Co., and The Hartford, No. 2009-S-1416 (Adams Co., Jan. 15, 2010, Kuhn, P.J.), in which President Judge John D. Kuhn of the Adams County Court of Common Pleas ruled in favor of the severance of the third party claims against the tortfeasor from the UIM claims asserted against the two separate levels of UIM carriers.

The new Westlaw citation for that case is 2010 WL 231525.

Thanks to Attorney James Beck of the Dechert Law Firm in Philaldelphia for securing this citation from Westlaw. I invite you to check out his blog, entitled Drug and Device Law, at

Saturday, January 23, 2010

Household Exclusion Upheld in Lackawanna County

Lackawanna County Court of Common Pleas Judge Carmen Minora recently issued a decision upholding the validity of a family vehicle/household exclusion in an automobile policy in the case of Steinetz v. Allstate Property & Casualty Ins. Co., PICS Case No. 09-2121 (Lacka. Co. Dec. 23, 2009, Minora, J.). A copy of this case can be secured for a small fee by calling the Pennsylvania Law Weekly's Instant Case Service at 1-800-276-7427 and giving the above PICS Case Number.

The household exclusion generally applies to the situation where an injured party resides in a household where there are multiple vehicles that are covered by different insurance companies. The exclusion basically states that, if the injured party is hurt while in one of the vehicles of the household, while the injured party can recover UIM benefits under the policy of that vehicle, the injured party is generally not entitled to also go after the coverage that may be available from the different carriers covering the other vehicles in the household.

In the Steinetz case, the plaintiff lived with his father as was injured while in his father's vehicle. As a resident relative under the father's policy, the plaintiff was entitled to, and did, recover benefits under the automobile insurance coverage for that vehicle.

At the time of the accident, the plaintiff also owned his own vehicle that had his own separate insurance coverage under a different insurance policy. The plaintiff turned to the carrier that sold him that separate policy in an effort to recover more UIM benefits. That carrier denied the claim under the family vehicle/household exclusion.

After the denial, the plaintiff then filed a lawsuit against that carrier for breach of contract and other claims. Faced with the plaintiff's motion for judgment on the pleadings and the defendant's motion for summary judgment, Judge Minora followed the recent line of appellate cases and upheld the exclusion and ruled in favor of the defense on each of the motions filed. Similar to the repeated rejection of the argument by the appellate courts, Judge Minora likewise rejected the plaintiff's argument that the exclusion was against public policy.

Source: Pennsylvania Law Weekly--Case Digests--January 25, 2010.

Thursday, January 21, 2010

Post-Koken Update: Adams County Court of Common Pleas Rules in Favor of Severance of Claims

In a January 15, 2010 Opinion and Order in the post-Koken case of Megert v. Stambaugh, Erie Ins. Co., and The Hartford, No. 2009-S-1416 (Adams Co., Jan. 15, 2010, Kuhn, P.J.), President Judge John D. Kuhn of the Adams County Court of Common Pleas ruled in favor of the severance of the third party claims against the tortfeasor from the UIM claims asserted against the two separate levels of UIM carriers.

In his Opinion, Judge Kuhn, apparently aware of at least some of the other cases previously handed down across the Commonwealth on this issue, chose to compare and contrast the rationale of the Pike County Court of Common Pleas in the case of Jannone v. McCooey and State Farm,2009 WL 18862 (Pike Co. 2009, Chelak, J.) (in favor of consolidation) and the decision of the Butler County Court of Common Pleas in the case of Baptiste v. Strobel and State Farm Mut. Auto. Ins. Co., 2009 WL 3793590, A.D. 09-11444 (Butler Co. Nov. 5, 2009, Horan, J)(in favor of severance).

In doing so, the Adams County President Judge sided with and adopted the minority rule stated in the Baptiste case in favor of severing such claims primarily on the grounds that the claims of negligence against the tortfeasor were misjoined with the contract claims against the UIM carriers in violation of Pa.R.C.P. 2229 and should therefore be severed under Pa.R.C.P. 213.

Judge Kuhn also felt that severing these claims would be consistent with the prior analogous appellate decision of Stokes v. Loyal Order of Moose Lodge #696, 466 A.2d 1341 (Pa. 1983). That case involved a plaintiff who pursued a negligence claim for injuries resulting from a chair collapsing under the plaintiff. The defendant in that matter attempted to join his own insurance carrier as an additional defendant, alleging a breach of contract action for failing to defend and indemnify him. Finding that the negligence claim and the breach of contract claim did not arise out of the same transaction or occurrence, the Supreme Court in Stokes did not allow the joinder.

President Judge Kuhn also noted that his decision to sever was also consistent with his own prior decision in the case of Michaleski v. National Indemnity Co., et al.,2009-SU-1529 (Adams Co., Dec. 22, 2009, Kuhn, P.J.). In Michaleski, Judge Kuhn again relied upon the Stokes decision to find that a plaintiff had improperly joined a motor vehicle negligence claim with the plaintiff's declaratory judgment action against the plaintiff's own insurance company.

As he did in the prior case of Michaleski, Judge Kuhn again rationalized in the Megert case that, although the claims arose out of the same car accident, the facts and the law relevant to the negligence claim and the contract claim against the carrier would be "very different" and can not be said to have arisen out of the same transaction or occurrence.

The Judge further noted that "[a]lthough there is clearly case law from other jurisdictions to support Plaintiffs' arguments [in favor of consolidation of post-Koken cases], this issue has not been conclusively decided by the appellate court in Pennsylvania." As noted, Judge Kuhn believed that "the better reasoned decision is to grant Defendant's preliminary objection" and to sever the cases.

As additional support for his decision, President Judge Kuhn also agreed with the Baptiste reasoning that the claims should be severed so as to avoid the undue prejudice to the tortfeasor defendant that may result from the introduction of insurance issues in a negligence trial. He felt that any probative value of the evidence of insurance in these matters would be outweighed by the unfair prejudice to the tortfeasor defendant in violation of the Rules of Evidence.

Accordingly, the Adams County Court granted the tortfeasor Defendant's preliminary objections to the joinder of the claims and also granted the Defendant's motion to sever.

With this update, there are now at least nineteen (19) cases across the Commonwealth in favor of consolidation of post-Koken claims. Those cases arise out of Lackawanna County, Luzerne County, Pike County, Lehigh County, Dauphin County, Beaver County, Philadelphia County, and Allegheny County.

There are now at least four (4) cases in favor of severance, with those decisions coming out of Adams County, Butler County, and York County.

I invite you to click on the "POST-KOKEN SCORECARD" down on the right-hand column of this blog to review summaries of these court decisions. Note that the review is not meant to be exhaustive; it only contains those cases I have uncovered or have been made aware of to date.

I would appreciate being advised of any other cases you may be aware of in this area so that the cases can be publicized and a consistent common law be created someday.

It also remains my hope that some trial court judge somewhere across the Commonwealth will allow one of these consolidation vs. severance Post-Koken cases to go up on an interlocutory appeal by permission so that the appellate courts can address the split of authority and provide guidance to the bar on how to handle these cases in the future.

Anyone desiring a copy of the Megert v. Stambaugh, Erie, and The Hartford decision, as well as Judge Kuhn's other referenced decision of Michaleski v. National Indemnity Co. may contact me at

I thank Attorney Candace N. Edgar of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie, & Skeel, P.C. for bringing this case to my attention.

Wednesday, January 20, 2010

Punitive Damages for Cell Phone Use During Car Accident?

In an Opinion and Order dated January 14, 2010, in the case of Linehan v. Jaludi, No. 1865-2008-Civil (Pike Co. Jan. 14, 2010), Judge Gregory H. Chelak of the Pike County Court of Common Pleas addressed the issue of whether a plaintiff may pursue a claim for punitive damages on the basis that the defendant was jabbering away on cell phone to the point of distraction at the time of the accident.

In this case, the plaintiff was a police officer whose vehicle was stopped on the side of the road with the cruiser's flashing lights activated. Another vehicle was stopped in front of the plaintiff's police car. The defendant, while driving and allegedly talking on her cell phone, allegedly drifted off the roadway and collided with the police car while the plaintiff police officer was inside of the car, resulting in alleged injuries to the plaintiff.

The plaintiff police officer later filed a negligence Complaint in which a punitive damages claim was asserted, in part, on the basis of the defendant using a cell phone at the time of the accident. The defendant filed preliminary objections.

Judge Chelak of the Pike County Court of Common Pleas sustained the defendant's preliminary objections and granted the motion to strike the claim for punitive damages. It was held that the allegations of the Complaint that the defendant was so distracted by her cell phone conversation that she crashed into the plaintiff's police car with its flashing lights were insufficient, in and of themselves, to support the punitive damages claim.

However, citing the case of Pennington v. King, slip copy, 2009 WL 415718, 2009 U.S. Dist. LEXIS 12779 at 21 (E.D.Pa. 2009, Pratter, J.) as offering support for a punitive damages claim base upon a driver being distracted by cell phone use, the Pike County Court noted that, if discovery turned out to confirm the cell phone use and distraction, by way of cell phone records or otherwise, the plaintiff would have the right to seek to amend the Complaint in an effort to support the possibility of restating the punitive damages claim pursuant to Rule 1033.

I thank Attorney Paul Oven from the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Anyone desiring a copy of this Opinion may contact me at

Monday, January 18, 2010

Luzerne County Can't Catch a Break

As reported in the January 18, 2010 Times Leader, Senior Judge Charles Joseph Rehkamp, who has recently been helping out with the backlog of cases in Luzerne County, was arrested on Sunday on assault and harassment charges in an alleged domestic dispute with his wife. Seems like the Luzerne County judicial system can't catch a break with the news that comes out of it. For more info on the story, please click on this link:

Like A Light Bulb Over My Head

I recently had an enlightening moment, almost like when a light bulb pops on over a character's head in a cartoon, while reading the attorney "self-help" book I had recently received as a gift, Making Your Case: The Art of Persuading Judges by Supreme Court Justice Antonin Scalia and legal writing expert Bryan A. Garner. This book offers great tips to improve your brief writing and oral argument presentation skills and I highly recommend it.

One of quite a few enlightening moments that occurred while reading this book revolved around a lesson in writing the Question Presented section of a brief. I, like most lawyers, had been trained to write the question presented by a case in a single, often run-on sentence, which as the authors noted often turns into "a muddle" which causes the reader to "forget the question by the time we reach the question mark."

Justice Scalia and Mr. Garner note that instead of a Question Presented like this:

Whether there was a violation of the OSHA rule requiring every incident-investigation report to contain a list of factors that contributed to the incident, when the investigation report on the June 2002 explosion at the Vespante plant listed the contributing factors in an attachment to the report entitled "Contributing Factors," as opposed to including them in the body of the report?

The authors note that a better way to present the question would be to break the issue down into sentences like this:

OSHA rules require every incident-investigation report to contain a list of factors that contributed to the incident. The report on the June 2002 explosion at the Vespante plant listed the contributing factors not in the body of the report but in an attachment entitled "Contributing Factors." Did the report thereby violate OSHA rules?

In the above example instead of one 62-word sentence, you have three sentences averaging just 18 words. The information is presented in a clear and tight manner such that even readers unfamiliar with this area of law can easily understand the issue raised by the case.

Concisely, with regards to writing this section of a brief, the authors assert that the better strategy is indeed to break up the question presented into separate sentences that all total no more than 75 words or so at the most. The first couple of sentences or so should be designed to follow a chronological order telling the story in miniature fashion, followed by the pointed question that emerges from that story.

Perhaps a way to ease yourself into this new way of writing the issue presented may be to continue, at least initially, to write out the question the old-fashioned run-on sentence way and then go back and edit down to two to three sentences followed by the pointed question.

I think this new format of the Question Presented is excellent advice and I note that, if it's not only acceptable to, but highly recommended by, Justice Scalia, I would hope that the writing of issues presented in this fashion would be well-received and appreciated by Judges reading our briefs.

Friday, January 15, 2010

Another Post-Koken Decision Out of Lackawanna County Uncovered

I have been advised of another post-Koken decision out of Lackawanna County in favor of third party claims and UIM claims proceeding in a consolidated fashion to trial. In a November 5, 2009 Order (without Opinion), Senior Judge Harold A. Thomson, Jr., Specially Presiding, denied Preliminary Objections seeking, in part, a severance of the claims in the case of Nehme v. Erie Insurance and Osborne, 2009-CV-4982 (Lacka. Co. Nov. 5, 2009).

I thank Attorney Paul Oven of the Moosic, PA office of Dougherty, Leventhal & Price for bringing this case to my attention.

This decision in Nehme is consistent with what has become the majority rule in the trial court decisions on this issue across the Commonwealth. It is also consistent with the other following post-Koken decisions out of Lackawanna County:

Decker v. Nationwide Ins. Co., 2008 WL 6653069, 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). See also Decker v. Nationwide, 2007 WL 6853118 (Lacka. Co. 2007).

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).

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).

Anyone needing a copy of any of the above decisions may contact me at

I invite you to click on the Post-Koken Scorecard in the right hand column of this blog to view a number of othe post-Koken cases uncovered from around the Commonwealth.

Election to the Executive Committee of the Lackawanna Bar Association

I am happy to announce that I was elected to the Executive Committee of the Lackawanna County Bar Association at last night's Annual Membership Meeting. I thank those members of the Bar who voted for me and, as a new member of the Board of Directors of the Association, I look forward to assisting this year's Lackawanna County Bar Association President, Gerard M. Karam, Esquire during his term in office.

Thursday, January 14, 2010

Defense Verdict Upheld in Icy Slip and Fall Case

In the recent case of Tucker v. Bensalem Twp. School Dist., 2009 WL 4877767 (Dec. 17, 2009)(Leavitt, J., Kelley, S.J., Flaherty, S.J.), the Commonwealth Court of Pennsylvania sustained a defense verdict in favor of a school district in a parking lot slip and fall accident involving black ice.

This case only involved claims of negligent failure to maintain the parking lot and did not involve any allegations of a negligent design of the lot.

The appellate court agreed with the trial court's findings that the jury properly concluded that the Plaintiff failed to establish a cause of action for negligence. The Commonwealth Court noted that a property owner is not required to keep his parking lot free from ice at all times, as climatic conditions would make doing so impossible. The Court further stated that there is no liability under the law where, as here, the situation involved a generally slippery condition from recent and ongoing precipitation.

Also, in order for a person to recover for injuries sustained in a fall on ice, they must prove that there was a dangerous condition due to ridges or elevations which were created by a defendant's negligence, or which were allowed to remain for an unreasonable length of time, i.e. they must meet the Hills and Ridges Doctrine. Here, the Plaintiff only alleged and offered proof of clear and smooth black ice that was repeatedly and generally forming on the ground at or about the time of the incident. In the Opinion, it was noted that the local roads and parking lots were all icy and slippery due to the weather.

Testimony further revealed that the parking lot had been plowed and salted before the incident. The Court found that, based upon the disputed evidence presented by both sides, the jury was free to conclude that the plowing and salting of the lot was not negligently completed under the circumstances.

Rather, according to the decision, "the jury had substantial evidence to conclude, as it obviously did, that [the Plaintiff] fell because of the slippery surface caused by bad weather in the nature of a generally icy condition rather than the negligence of the School District. The verdict is consistent with the applicable law."

As such, the Commonwealth Court affirmed the decision of the Bucks County Court of Common Pleas to deny the motion for a new trial filed by the Plaintiff.

Those not having access to this Opinion on Westlaw, may view it at:

Commonwealth Court Rejects Negligence Per Se Argument in Auto Accident Case

In the recent case of Behney v. Bolich, 2009 WL 4877762 (Pa.Cmwlth. Dec. 18, 2009), the Commonwealth of Pennsylvania upheld a defense verdict in a case where the Defendant had lost control of her vehicle due to ice on the roadway and fishtailed into the oncoming lane of travel, colliding with the Plaintiff's vehicle.

This decision addresses an appeal from the trial court's denial of the Plaintiff's motion for post-trial relief in which the Plaintiff asserted, in part, that the trial court should have found the Defendant to be negligent per se, thereby allowing the case to proceed to the jury on the damages issues alone. The Plaintiff asserted that the Defendant was negligent per se in terms of excessive speed above the posted speed limit, driving on the wrong side of the road, and failing to pass a vehicle on the right.

The Defendant disputed at trial the allegations that she was speeding or driving too fast for the conditions. Rather, she asserted that she was traveling along in a reasonable and safe fashion at the speed limit when she suddenly, unexpectedly, and unfortunately encountered ice in a dip in the roadway. Other witnesses, including another driver and the police officer, confirmed the presence of the ice on the road.

The Commonwealth Court noted that, although there was no question that the Defendant's vehicle crossed into the northbound lane, the Defendant claimed that the accident was due to the presence of ice and slush on the road that caused her to lose control of her car. In addition, the issues of whether the Defendant violated the Vehicle Code by speeding, driving too fast for road conditions or passing improperly at the time of the accident were disputed.

Accordingly, the Commonwealth Court agreed that the issue of whether the Defendant's negligence was a cause of the accident was for the jury to decide. As such, it was held that the trial court did not err in refusing to direct a verdict in the Plaintiff's favor.

It is also noted that, in this case, the appellate court upheld the non-suit that was entered against PennDOT on the grounds that there was no evidence that PennDOT had prior notice of the icy conditions such that they should have remedied the situation at some point before the accident occurred.

For those of you who may not have access to Westlaw, this Opinion can also be viewed at

Wednesday, January 13, 2010

Amicus Curiae Position Argued Before Superior Court on behalf of Pennsylvania Defense Institute

On January 12, 2010, I traveled to Philadelphia to present and argue the amicus curiae position of the Pennsylvania Defense Institute in the case of Gormley v. Edgar.

The issue presented was whether the Philadelphia County Court of Common Pleas correctly ruled that the defense should be entitled to discovery of a pre-accident mental health consultation medical record pertaining to a plaintiff who had pled emotional distress claims as a result of a motor vehicle accident.

The Plaintiff argued that they were only pleading ordinary emotional distress claims attendant with a personal injury action. The defense counsel, fellow PDI member, Beth Carter, Esquire, and I argued that, once the Plaintiff put her mental health condition in issue in the case with claims of severe, disabling and indefinitely continuing mental distress and anguish, the discovery of the pre-accident record should be allowed.

The Superior Court panel, consisting of Judge Gantman, Judge Bowes, and Senior Judge Kelly took the matter under advisement. Their decision is anticipated in the near future. I will keep you advised on this matter.

Saturday, January 9, 2010

Year-End Review Article on Important Updates and Trends in Auto Law

(This second part of a two-part article appeared in the January 4, 2010 edition of the Pennsylvania Law Weekly. The first part of the article reviewed the important cases and trends in the general civil litigation context. That first part of the article can be viewed here by going down the right-hand column of this blog to the Latest Documents box powered by, where all of my articles are listed, and clicking on the article entitled "A Wild Ride.")

(Also, for more recent updates on post-Koken cases, please click on the Label for "Koken.")

In The Driver's Seat

Post-Koken decision making dominated the field of auto insurance law in 2009

By Daniel E. Cummins
Special to the Law Weekly

Editor's note: Last of two parts.

If 2009 is any indicator, it will remain a challenging task to stay on top of automobile litigation law and, at times, difficult to predict how the courts will rule on the myriad of issues continually arising in the novel area of post-Koken cases.

For the uninitiated, the state Supreme Court's landmark decision in Insurance Federation of Pennsylvania v. Koken, 801 A.2d at 624 (Pa. 2005), changed the realm of auto insurance litigation by ending the requirement that claims over uninsured/underinsured motorist coverage be resolved through arbitration.


In 2009, post-Koken automobile accident cases continued to move slowly through the system as both plaintiff's counsel and defense counsel cautiously maneuvered through the uncharted waters presented by these novel cases.

One early issue that appeared to be solidified last year by decisions out of Allegheny County and Lackawanna County was that UM/UIM claims can proceed in a consolidated fashion under one lawsuit with the claim against the third-party tortfeasor under Pa.R.C.P. 213, given that both claims arise out of the same occurrence.

The established trend of trial courts allowing for the consolidation of third-party claims and UIM claims largely continued in 2009 with a number of additional trial court decisions.

In Pike County, Judge Gregory H. Chelak issued an opinion in Jannone v. McCooey and State Farm, 2009 WL 2418862 (C.P. Pike April 1, 2009), denying the tortfeasor's preliminary objection to the joinder of a third-party claim and a UIM claim under one caption. Chelak also ruled, in dicta, that evidence of insurance could potentially come into evidence during the later trial of that matter for limited purposes.

In Serulneck v. Kilian and Allstate, 2008-Civil-285 (C.P. Lehigh April 7, 2009), Judge Carol K. McGinley denied the tortfeasor defendant's motion to sever the claims against him from the UIM claims that were filed by the plaintiff under one caption.

Judge C. Gus Kwidis of the Beaver County Court of Common Pleas followed suit in Six v. Phillips and Nationwide Ins. Co., 2009 WL 2418861 (C.P. Beaver June 30, 2009), with his decision denying the preliminary objection by the tortfeasor to the joinder of a third-party claim and a UIM claim in one lawsuit. Similar to Chelak's ruling in Jannone, Kwidis also stated, in dicta, that evidence of insurance may come into evidence at trial for limited purposes.

Judge Thomas Burke of the Luzerne County Court of Common Pleas ruled in Glushefski v. Sadowski and Erie Ins. Exchange, 1189-Civil-2009 (C.P. Luzerne July 24, 2009), that the preliminary objection filed by a tortfeasor defendant seeking to sever a third party claim from a consolidated UIM claim should be overruled.

In the case of Gingrich v. Esurance and Graci, No. 08795 CV 2009 (C.P. Dauphin Nov. 2, 2009), the third party tortfeasor filed preliminary objections to a complaint that joined the third party and the UIM causes of action under one caption. Dauphin County Judge Todd Hoover issued a one-line order denying the preliminary objections on Nov. 2, thereby allowing the claims to proceed in a consolidated fashion.

It appears that an overriding factor in essentially all of the above decisions was that the consolidation of these claims would further the interests of judicial economy by promoting streamlined, as opposed to piecemeal, litigation.

However, more recently, in an opinion and order issued in Baptiste v. Strobel and State Farm, A.D. 09-11444 (C.P. Butler Nov. 5, 2009), Judge Marilyn J. Horan revealed there is room for disagreement on the consolidation issue.

Horan rejected the judicial economy argument as being outweighed by the undue prejudice to the tortfeasor given the possible introduction of UIM insurance issues in these combined cases. Horan therefore granted the misjoinder of causes of action preliminary objection filed by State Farm, the UIM carrier. Horan not only ruled that the UIM claim was to be severed from the third party claim, but also ruled that the UIM claim should be stayed pending the resolution of the underlying negligence claim.

To date, there have not been any appellate court opinions on this consolidation issue. It is unlikely that any such appellate decisions will be forthcoming in the near future as these issues are not readily appealable at such early stages of the litigation. As such, Pennsylvania litigators will have to continue to rely upon the various trial court opinions, and the reasoning contained therein, to advocate their positions.

Forum Selection

The Superior Court issued an opinion upholding Liberty Mutual Insurance Group's forum selection clause in the post-Koken case of O'Hara v. The First Liberty Ins. Corp., PICS Case No. 09-1884 (Pa. Super. Nov. 9, 2009) Kelly, J. (9 pages).

In this case, Delaware County plaintiffs were injured in a Delaware County accident but filed suit in Philadelphia County for breach of contract and loss of consortium after Liberty denied their UIM claim.

Liberty Mutual's policy had a forum selection clause mandating that, if suit were filed by the insured, the suit "must be brought in a court of competent jurisdiction in the county and state of your legal domicile at the time of the accident." Accordingly, Liberty Mutual filed preliminary objections asserting improper venue.

The trial court sustained the preliminary objections and transferred the case to Delaware County. Affirming this decision on appeal, the Superior Court found the clause to be clear and unambiguous and summarily rejected the plaintiffs' public policy arguments.

Offsetting Benefits

The Pennsylvania Superior Court handed down a monumental UIM decision in the case of Pusl v. Means, 2009 WL 3065089 (Pa. Super. Sept. 23, 2009).

In the opinion written by Judge Zoran A. Popovich, the Superior Court held that where a plaintiff first obtains a UIM recovery prior to the conclusion of her suit against the third-party defendant tortfeasor, the third-party defendant is entitled to have any verdict entered against him reduced by a credit or set-off in the amount of the UIM benefits previously secured by the plaintiff.

More specifically, the plaintiff in Pusl had recovered $75,000 in UIM policy limits under his own automobile insurance policy from State Farm in a settlement prior to the completion of the trial against the tortfeasor defendant.

At the later trial against the defendant tortfeasor, the jury entered a verdict in favor of the plaintiff in the amount of $100,000. In post-trial motions, the defense requested a molding of the verdict to $25,000 after the application of a credit or set-off of the $75,000 in UIM benefits previously received by the plaintiff. The trial court granted the defendant's request and, on appeal, the Superior Court affirmed.

In so ruling, the Superior Court weighed two conflicting public policies: the recognized public policy against double recoveries by plaintiffs; and the policy that a tortfeasor should be liable for the all of damages caused as a result of his negligence.

The court in Pusl noted that the first public policy, against double recoveries, was essentially codified in 75 Pa.C.S.A. Section 1722, "Preclusion of recovering required benefits." The court noted that Section 1722 "was obviously designed" to refer to first party benefits under the Motor Vehicle Financial Responsibility Law and to prevent a double recovery of those benefits.

The plaintiff's UIM benefits were found to "fall within Section 1722's first-party benefits because the UIM benefit was paid to her from her personal insurance policy with State Farm."

Therefore, according to the Pusl court, the plaintiff's receipt of both the full jury award from the defendants and the pre-trial UIM settlement with State Farm would constitute a "double recovery" that the MVFRL was specifically designed to prevent.

The court disagreed with the plaintiff's argument, in part, that the reduction of the verdict amount violated the second noted public policy requiring a tortfeasor defendant to pay for all of the damages he or she caused. The court reasoned that the tortfeasor's liability was not lessened or reduced by the offset at all, because State Farm, as the carrier that paid out the UIM benefits, still had the right to pursue a subrogation claim against the defendant and thereby require that defendant to pay back the $75,000 in UIM benefits. Thus, according to this opinion, the second public policy was not violated by the molding of the verdict.

Prior to the Pusl opinion, the issue of molding a plaintiff's jury award to reflect the pre-trial receipt of UIM benefits had only been addressed in the Delaware County Court of Common Pleas opinion in Shankweiler v. Regan, 60 Pa.D&C.4th 20 (2002). That opinion, previously ignored by some as an anomaly or even erroneous, was actually cited with approval by the
Superior Court in Pusl.

The plaintiff in Pusl has since petitioned the Pennsylvania Supreme Court to accept an appeal and the defendant has filed an opposition to that petition. To date, the Supreme Court has not indicated whether it will hear the issue.

Negligent Entrustment

In the case of Carra-Cielski v. Scrimalli, PICS Case No. 09-1650, 2006-C-2735 (C.P. Lackawanna Aug. 18, 2009), Lackawanna County Court of Common Pleas Judge Carmen Minora seemed to expand the ambit of a negligent entrustment claim.

In his opinion, Minora acknowledged that the state Supreme Court has limited the theory of negligent entrustment to specific and narrow situations where the owner of a vehicle knew or should have known that, when permission was given to the driver, the driver was not in a condition to operate the vehicle.

However, Minora appeared to expand that rule of law under the facts of this case by allowing the claim of negligent entrustment to continue beyond the summary judgment stage on the grounds that defendant-driver was the grandson of the defendant-owner and was known to have a history, over two years leading up to the accident, of engaging in repeated incidents of underage drinking.

It was also noted that, on at least one occasion prior to the subject accident, the defendant-driver had even been found to have been drinking and driving the subject vehicle.

As such, Minora ruled that the repeated conduct of the defendant-driver arguably demanded greater vigilance, supervision and control by the defendant-owner over the vehicle that he owned. Accordingly, the court felt that a jury could conclude that the defendant-owner knew or should have known that the defendant-driver "could become incompetent to drive his motor vehicle."

The court found that the defendant-owner's willful blindness to his grandson's repeated illegal activities meant that the plaintiff could possibly prove to a jury the necessary elements constituting the cause of action of negligent entrustment. As such, the court felt that it was premature to dismiss that cause of action at that summary judgment stage of the case.

Crashes at Work

The state Supreme Court granted a petition for allowance of appeal from the Commonwealth Court decision in Heller v. Pennsylvania League of Cities and Municipalities, 950 A.2d 362 (Pa.Cmwlth. 2008), to address the issue of whether the court should find improper an exclusion in the defendant's policy that provided that any person receiving workers' compensation benefits was ineligible to receive UIM/UM motorist benefits for the same incident.

According to the Commonwealth Court's decision, the case involved a declaratory judgment complaint that was brought against a municipal insurer seeking a ruling that the exclusion at issue violated public policy. The underlying claim involved a police officer who had been injured in a motor vehicle accident during the course of his employment and who had consequently received workers' compensation benefits

The Commonwealth Court, in a decision authored by Judge James Gardner Colins, held that the policy's exclusion of UIM benefits where workers' compensation benefits were available to the claimant was not void as against public policy. It remains to be seen how the Supreme Court will decide this important issue.

Household Exclusion

The state Supreme Court issued its decision June 22 in Erie Insurance v. Baker, 2009 WL 1741756 (Pa. 2009). In a 4-3 decision, the court again upheld a UIM carrier's "household exclusion."

The case involved an injured party who was operating his motorcycle, which was insured for UIM coverage by Universal Underwriters at the time of the 1999 accident. The injured party initially settled with the third party tortfeasor and secured the limits of the Universal Underwriter's UIM coverage that covered his own motorcycle.

The injured party then sought to stack UIM coverage from a policy he had with Erie Insurance that covered his other three vehicles, but not the motorcycle he was riding at the time of the accident. That Erie Insurance policy had stacking affiliated with the available UIM coverage on the other three vehicles.

After receiving the claim for UIM benefits from the motorcyclist, Erie filed a declaratory judgment action asserting that it did not owe UIM benefits to the injured party in light of the "household exclusion" in its policy. This exclusion essentially provided that there was no UIM coverage available to the injured party under the Erie policy for incidents in which the insured was injured while occupying another motor vehicle owned by the insured, but not covered under the Erie policy.

The injured party attempted a "novel" argument to the Supreme Court -- that the household exclusion violated Section 1738 of the Motor Vehicle Financial Responsibility Law, pertaining to "stacking of uninsured and underinsured benefits and option to waive," in that the exclusion prevented the injured party from stacking his Erie UIM benefits when he elected and paid for such stacked UIM benefits.

The majority in the Pennsylvania Supreme Court decision -- Justices Jane Cutler Greenspan, J. Michael Eakin and Thomas G. Saylor and Chief Justice Ronald D. Castille -- held that the exclusion was a valid and unambiguous preclusion of coverage for risks that Erie had not accounted for when it determined the premium to be paid by the injured party.

Simply put, Erie was not required to pay out UIM benefits for a vehicle that was not covered under the Erie policy. The court also noted that the "application of the household exclusion in this case does not involve 'stacking' at all."

As such, Baker is yet another example of the Supreme Court upholding the validity of the "household exclusion" in automobile insurance policies. This policy exclusion has been upheld by the Supreme Court as valid and enforceable time and time again in cases including Prudential Prop. & Cas. Ins. Co. v. Colbert, 813 A.2d 747 (Pa. 2002); Eichelman v.. Nationwide Ins. Co., 711 A.2d 1006 (Pa. 1998). In Paylor v. Hartford Ins. Co., 640 A.2d 1234 (Pa.1994) the court upheld a similar "family car exclusion."

Seat Belt Defense

In June, the Superior Court reversed a decision by Judge Harold A. Thomson Jr. of the Pike County Court of Common Pleas that allowed for limited use of the seat belt defense in Gaudio v. Ford Motor Co., PICS Case 09-0927 (June 1, 2009) Donohue, J.; Fitzgerald, S.J., dissenting (61 pages). Although this case is a products liability case alleging a defective airbag system, it is reviewed here given that this decision, if upheld, could have had a far reaching effect on automobile accident litigation.

By way of background, the Seat Belt Statute, 75 Pa.C.S. § 4581, precludes any reference in a civil claim to the fact that the injured party was not using a seatbelt at the time of an accident.

Gaudio involved a decedent found in a ditch after a presumably single car motor vehicle accident. The air bag was deployed and the decedent was not wearing a seatbelt. It was alleged by the plaintiffs that the decedent was killed by a defective air bag system.

At trial, Thomson allowed the defense to introduce evidence that the decedent was not wearing a seat belt. Such evidence was offered by the defense not for the purpose of showing that the decedent was contributorily negligent, but rather, as part of the effort in this products liability case to show that the air bag system was not defective.

However, Thomson's decision was overruled by the Superior Court in a 2-1 decision. Despite a strong dissent by Judge James J. Fitzgerald, adopting the trial court's reasoning, the majority chose to uphold the seemingly airtight statutory prohibition against the use of the seatbelt defense in civil litigation matters, much to the relief of the plaintiffs bar across Pennsylvania.

Looking Ahead

Going into 2010, it appears that the issues in the novel post-Koken cases will remain a concern for litigators across the state. How the trial courts will handle the various post-Koken issues in the absence of appellate guidance remains to be seen. Presumably, as they have done to date, the trial courts will attempt to utilize the doctrine of stare decisis and rule on the issues in a fashion similar to what has been done in other similarly consolidated matters.

As stated previously in this column, it is incumbent upon the members of both sides of the automobile litigation bar to publicize these decisions and opinions so that a consistent common law can be developed for use in future cases. •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. Cummins' civil litigation blog, "Tort Talk," may be viewed at

This article originally appeared in the January 4, 2010 edition of the Pennsylvania Law Weekly, a statewide legal news publication.(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.

Friday, January 8, 2010

Another Post-Koken Luzerne County Decision in Favor of Consolidation of Claims

On December 29, 2009, Judge David W. Lupas of the Luzerne County Court of Common Pleas issued an Order in the post-Koken case of Doran v. Williams, Price, and Nationwide, No. 7792-CV-2009 (Luz. Co. Dec. 29, 2009) denying preliminary objections by the tortfeasor defendants as well as by Nationwide as the UIM carrier, both of which sets of preliminary objections had argued in part for the severance of the third party liability claims from the underinsured motorists (UIM) claims. As such, all claims were allowed to proceed in a consolidated fashion.

This Luzerne County decision is consistent with the prior Luzerne County Order without opinion by Judge Burke in the case of 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; case allowed to proceed in a consolidated fashion).

I have a copy of the both of these Luzerne County decisions if anyone needs them. I note, however, that each are only simple Orders denying the preliminary objections without any rationale or supporting Opinion.

Thanks to Attorney Robert Goodman of the Scranton office of the law firm of Forry Ullman for bringing the Doran case to my attention.

Directed Verdict Entered in Favor of Hospital Defendants in Luzerne County Med Mal Case

Recently, on Friday, December 18, 2009, Judge Thomas F. Burke, Jr., trial court judge in the Luzerne County Court of Common Pleas, entered a directed verdict in favor of the hospital defendants in the case of Williamson v. Robert Yamulla, M.D., Eugene Stish, M.D., Greater Hazleton Health Alliance d/b/a Hazleton General Hospital, and Hazleton General Hospital, No. 3896-CV-2004 (Luz. Co. Dec. 18,2009).

According to the transcript of the trial proceedings on this aspect of the case, Judge Burke, who is now the President Judge of Luzerne County, ruled that the plaintiff failed to meet the requirements of the ostensible agency doctrine by failing tie the individual doctor defendants to the hospital defendants in order that liability would attach to the hospital defendants.

Judge Burke found that the testimony established that the plaintiff had extensive prior individualized treatment with the doctor defendants unrelated to the hospital defendants. The Judge also noted that there was "no indication whatsoever" that the hospital defendants had held out the doctors as being agents of the hospital with regards to the treatment in question. Accordingly, the Judge ruled that, no reasonable person could be justified in believing that the care in question was provided by the hospital or its agents.

As such, the hospital defendants were dismissed from this matter by way of a directed verdict at the close of the Defendants' case at trial.

Thanks to Attorney Tim Holland, counsel for the hospital defendants, for bringing this case to my attention. Attorney Holland may be contacted at his Wilkes-Barre, PA law firm of Holland, Brady & Grabowski for any additional information on this case.

Tuesday, January 5, 2010

Court of Judicial Discipline Upholds its Removal of Judge Lokuta

In a 4-3 vote, the Court of Judicial Discipline on Monday, January 4, 2010 issued an Order upholding its decision to remove Lokuta from office. The majority held that it did not believe that any after discovered evidence, including evidence concerning former Judges Conahan and Ciavarella required the Court to reverse its prior decision.

For more details, I provide you to the link to an article by in the Times Leader for your review: Note that the article itself provides a link to the Opinion of the Court of Judicial Discipline as well.

Congratulations to Judge William J. Nealon - Celebrating 50 years on the Bench

Congratulations to Federal District Judge William J. Nealon who today celebrates an amazing 50 years as a Judge of the United States District Court for the Middle District of Pennsylvania. It was 50 years ago today that Judge Nealon was sworn in as a member of the Bench of that Court.

In other Northeastern Pennsylvania Judicial news, Judge Margie Bisignani-Moyle was sworn in yesterday as a member of the Lackawanna County Court of Common Pleas. She is expected to start her judicial career in the family division of the court.

Yesterday also saw Judge Tina Polachek-Gartley and Judge William Amesbury sworn in as members of the Luzerne County Court of Common Pleas.

Monday, January 4, 2010

Re-argument Denied by Superior Court in Post-Koken Forum Selection Clause Case

I received word from one of the amicus defense attorneys involved in the case of O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 2009 WL 3720649, 2009 Pa.Super. 214 (November 9, 2009, Judges Freedberg, Cleland and Kelly) that the Superior Court issued an Order on December 30, 2009 denying the O'Hara's request for re-argument before an en banc panel.

You may recall that O'Hara was a post-Koken case in which the Superior Court upheld UIM carrier's forum selection clause requiring UIM lawsuit to be brought in the county of the insured's legal domicile at the time of the accident.

Thanks to Attorney Tom McDonnell of the Pittsburgh office of the law firm of Summers, McDonnell, Hudock, Guthrie & Skeel for bringing this Order to my attention.

Saturday, January 2, 2010


(Published in Pennsylvania Law Weekly Monday, December 28, 2009)

A Wild Ride
A multitude of landmark decisions in civil law make 2009 a year to remember

Special to the Law Weekly

Editor's note: First of two parts.

As the wild legal ride of 2009 winds down, the time has come to take a look back at some of the notable events and decisions handed down over the past year across the commonwealth of Pennsylvania.

In the first part of a two-part article, we take a look at the many changes in the law brought on by cases across the spectrum of civil litigation matters outside of the auto law context. Part two of this article, next week, will cover the important auto law cases of 2009.


A number of new appellate court judges were selected in the November general elections. Superior Court Judge Jane Orie-Melvin, the Republican candidate, defeated fellow Superior Court Judge Jack Panella, a Democrat, for the open Pennsylvania Supreme Court seat.

Winners at the Superior Court level included Judge Judy Olson from Allegheny County, Judge Paula Ott from Chester County, Judge Anne Lazarus from Philadelphia County, and Sallie Mundy, a private attorney from Tioga County. The two open seats on the Commonwealth Court were won by private practice attorneys Kevin Brobson from Harrisburg and Patricia McCullough from Pittsburgh.

In other state judicial election news, Luzerne County voters elected not to retain Judge Peter Paul Olszewski Jr. for a second 10-year term on the trial court bench. Receiving only 44.5 percent of the "yes" vote, he may have fallen victim to the ongoing negative publicity surrounding the judicial scandal involving former Judges Michael T. Conahan and Mark A. Ciavarella Jr. Meanwhile, the other Luzerne County judge up for retention, Thomas F. Burke Jr., received 61.6 percent of the "yes" vote, thereby retaining his position.

In the Federal Court system, Pennsylvania Middle District Judge Thomas I. Vanaskie and New Jersey District Judge Joseph A. Greenaway were tapped by President Obama as nominees to fill open seats on the 3rd U.S. Circuit Court of Appeals. Their nominations are still pending and are expected to be approved.

It is anticipated that Obama may finally move ahead in 2010 with appointments for the many vacancies currently existing on the federal bench, including in Pennsylvania.


In my Oct. 26 article, "You'd Better Watch Your Step," I noted 2009 was a banner year for premises liability defendants in Pennsylvania.

In the U.S. District Court for the Eastern District of Pennsylvania, two separate decisions were handed down by judges granting summary judgment in favor of store owner defendants under a notice defense, i.e., that the plaintiff failed to show that the store owners had actual or constructive notice of the conditions that allegedly caused the plaintiffs to fall. Significantly, in both Hower v. Wal-Mart Stores, Inc., 2009 WL 1688474 (E.D. Pa. June 16, 2009, Surrick, J.) and Murray v. Dollar Tree Stores, 2009, WL 2902323 (E.D. Pa. Sept. 10, 2009 Kelly, S.J.), the Eastern District judges also rejected the plaintiff's efforts to attach liability by arguing that the stores negligently failed to follow their own established inspection procedures. Both courts noted that such evidence still did not serve to establish how long the slippery substances were on the floor prior to the time the plaintiffs encountered them.

Also this year, Judge Gregory H. Chelak of the Pike County Court of Common Pleas utilized the "trivial defect doctrine" to grant summary judgment in favor of a gas station owner in Melchiorre v. Lords Valley Xtra, 2009 WL 2430339 (C.P. Pike June 19, 2009). In Melchiorre, the plaintiff tripped and fell allegedly because of the raised edge of a concrete pad at a gas station being a mere one inch above the surrounding asphalt. Significantly, Chelak noted that, under the doctrine, the defendant possessor of land bore no liability for such a minimal condition even though the defendant had prior notice of that defect.

The trend continues. Just last month Judge C. Gus Kwidis of the Beaver County Court of Common Pleas granted summary judgment to a defendant bowling in a claim brought by a plaintiff who tripped and fell while entering a bathroom at a bowling alley. In Orlowski v. Magg's Inc., PICS Case No. 09-1822 (C.P. Beaver, Oct. 27, 2009), the court noted that the step into the bathroom was painted bright yellow, which sharply contrasted with the surrounding floor.

Also noted was a "Watch Your Step" sign outside of the bathroom. It was additionally emphasized that the plaintiff admitted that she was not watching where she was walking at the time she fell. The court held that there is no liability for open and obvious dangers and also stated that the plaintiff had a duty to look where she was walking and see that which was obvious.

The continuing validity of the assumption of risk doctrine under Pennsylvania jurisprudence remained uncertain in 2009.

The Commonwealth Court utilized the doctrine in two separate cases, Cochrane v. Kopko, 2009 WL 1531646, PICS Case No. 09-0956 (Pa. Commw. June 3, 2009) and Vinikoor v. Pedal Pennsylvania Inc., 2009 WL 1544267, PICS Case No. 09-0948 (Pa. Commw. June 4, 2009) to grant summary judgment in favor of a defendant.

In Cochrane, the Commonwealth Court barred an inmate from recovery, noting that he assumed the risk of injury when he left himself open to "the mercy of gravity" and fell from his top bunk bed while reaching for his cell door from that position. In Vinikoor, the court found that a plaintiff assumed the risk of hitting a pothole while riding a bike on a course mapped out by the defendant bike tour organizer.

On the other hand, the Pennsylvania Superior Court continued to seriously question whether the assumption of risk doctrine remained a valid defense in the case of Ziedman v. Fisher, 2009 WL 2462563 (Pa. Super. Aug. 13, 2009). In that case, the court described the validity of the defense as being in doubt and chose instead to apply general negligence principles to a case involving a plaintiff injured by an errant shot on a golf course.

This ongoing split of authority on the issue brings to mind former Pennsylvania Supreme Court Justice Stephen A. Zappala's statement more than 15 years ago in the case of Howell v. Clyde, 620 A.2d 1107 (Pa. 1993): "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."

In what some commentators are touting as the first time in 20 years that the Pennsylvania Supreme Court will address the issue of negligent infliction of emotional distress and the physical injury requirement, the court granted allocatur on the following question in an appeal of the Superior Court decision in Toney v. Chester County Hospital, 961 A.2d 192 (Pa. Super. 2008):

"Whether the Superior Court erred in finding a cause of action for negligent infliction of emotional distress exists where emotional distress results from the negligent breach of a contractual or fiduciary duty, absent a physical impact or injury."

According to the Superior Court opinion in Toney, the case involved a mother who gave birth to a son with profound physical deformities after the mother had been previously told that an ultrasound revealed no fetal abnormalities. The plaintiff-mother was awake and coherent during the delivery and was immediately horrified when she saw the totally unexpected and severe abnormalities of her baby as he was born.

The mother brought professional negligence action against the doctor who performed and read the pelvic ultrasound examination, the hospital where doctor was on staff, a radiological services provider and the university where the doctor was a faculty member.

A key issue in the case, which the Supreme Court will address, is whether a physical impact is necessary to support a claim of negligent infliction of emotional distress particularly where, as here, it is based upon a theory of a breach of a fiduciary duty, i.e., the agreed upon duty of the defendants to provide medical care to the plaintiff.

In 2009, the Supreme Court also agreed to hear another important negligent infliction of emotional distress issue when it handed down its May 27, 2009, order granting allocatur in Schmidt v. Boardman Company, 2009 WL 1471119 (Pa. 2009).

An issue in the Schmidt case is whether a negligence claim, specifically a claim for negligent infliction of emotional distress, could be brought in a products liability case.

As noted below, the Supreme Court recently chose not to address a broader version of this issue in Bugosh v. I.U. North America.


In the products liability case of Bugosh v. I.U. North America, 2009 WL 1663998, PICS Case No. 09-1010 (Pa. June 17, 2009), the Supreme Court declined an opportunity to settle the important issue of whether negligence concepts should be introduced into the strict liability doctrine currently employed under Pennsylvania law.

In this asbestos case, the defense wished to introduce concepts of foreseeability into the issue of whether it violated any duty to warn given that it was not allegedly foreseeable, at the time, that the plaintiff could be injured as a result of the defendant's alleged acts or omissions.

In a one-line order, the Pennsylvania Supreme Court dismissed the appeal as "improvidently granted."

However, Justice Thomas G. Saylor and Chief Justice Ronald D. Castille dissented from the majority and wrote that "adjustments [to the state's current products liability law] are long overdue."

According to Saylor, "the court should no longer say negligence concepts have no place in 'strict-liability' doctrine in Pennsylvania, when this simply is not accurate in our tort scheme, or in any scheme purporting to recognize that manufacturers and distributors are not outright insurers for all harm involving their products."

Saylor also stated that the "reality is that necessary modernization of the law of Pennsylvania has been suppressed for so long by the no-negligence-in-strict-liability mantra that we are essentially thirty years behind." It appears that the dissent will have to await another case to review this issue again.

In another recent products case, Barnish v. KWI Building Co., 2009 WL 3161492 (Pa. Oct. 2, 2009), the Supreme Court did unanimously clarify the burden of proof on a malfunction theory claim in a products liability action. This case revolved around an alleged malfunctioning of a spark detection device that was designed to detect sparks along a conveyor belt system through the use of multiple sensors.

The plaintiffs alleged that the sensors were defective in a strict products liability claim. However, the plaintiffs were unable to present direct evidence of a defect in the sensors because the sensors were lost after the explosion. Therefore, the plaintiffs attempted to proceed under a malfunction theory. Under this theory, the law allowed the plaintiff to proceed on circumstantial evidence.

However, the Supreme Court ruled that the plaintiff had failed to present sufficient circumstantial evidence to get beyond a summary judgment motion. More specifically, the Supreme Court noted that although the plaintiffs presented evidence of a malfunction and expert testimony that the injuries resulted from the malfunction, the plaintiffs' failed to present required evidence, circumstantial or direct, that the product was defective at the time it left the manufacturer's control.

Commentators have viewed this decision as reinforcing the malfunction theory as a valid basis for recovery in a products case and as providing clarity on the burden of proof on such a claim, particularly at the summary judgment stage.

In the Superior Court opinion in Pringle v. Rapaport, 2009 WL 2710221, PICS Case No. 09-1436 (Pa. Super. Aug. 31, 2009), the court held that the previously accepted "error of judgment" jury instruction is inappropriate in a medical malpractice case.

This medical malpractice claim arose out of a situation during which the plaintiff's baby allegedly suffered nerve damage to his brachial plexus, leading to paralysis of his right arm, allegedly as a result of the doctor's maneuvers during the delivery.

At trial, all experts agreed the procedure was acceptable, the decision to use it appropriate in the circumstances and that the proper amount of force to apply when using the procedure was a learned skill. All of the experts further agreed that it turned out in hindsight that the amount of force used here was too much. Yet, the experts disagreed on whether, overall, the delivery was negligently performed.

At the close of the case, the trial court gave an "error of judgment" jury instruction, stating that "physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake in judgment." The jury returned a defense verdict.

On appeal, the Superior Court acknowledged that there had been earlier decisions suggesting an "error of judgment" defense or instruction was appropriate. However, the court also stated that issues were confusing and that there were inconsistent rulings from its own panels in the past. Accordingly, the Pringle court held that such an instruction should now be deemed inappropriate.

The Superior Court in Pringle explained the instruction wrongly suggested to the jury that a physician is not culpable for negligent exercise of judgment. The court further faulted the instruction for injecting a subjective element into the objective test of standard of care. As such, the defense verdict was reversed and the case was remanded for further proceedings.


The Supreme Court took the rare step of overturning one of its own prior decisions and ruled in Freed v. Geisinger Medical Center, 971 A.2d 1202 (Pa. 2009), that nurses should not be precluded from offering medical opinions when testifying as experts in a civil trial.

The plaintiff in Freed sued various medical institutions alleging that the nursing staffs at the facilities were negligent in preventing and treating his bedsores. At trial, the plaintiff presented a registered nurse as his expert witness to testify regarding the relevant nursing standard of care and to offer her medical opinion on the causation issue.

The trial court sustained the defendants' objections to the nurse offering her medical opinion on the grounds that she was not a medical doctor. The trial court would go on to grant a compulsory nonsuit in favor of the defendants when the plaintiff failed to offer any other medical testimony on the causation issue.

The Supreme Court in Freed held that its prior decision in Flanagan v. Labe, 690 A.2d 183 (Pa. 1997) must be overruled "to the extent it prohibits an otherwise competent and properly qualified nurse from giving expert opinion regarding medical causation."

However, in footnote 8 of its opinion, the Freed court acknowledged that its decision to overrule Flanagan may only have limited impact given the legislative enactment of the MCARE Act, effective since 2002. That act mandates that, in medical professional liability lawsuits, only doctors may serve as experts against other doctors.

Yet, the Freed court noted that its decision may allow nurses to testify as experts in cases that did not involve medical professional liability actions against physicians, such as cases against non-physician health care providers or other like professional liability actions. The court suggested that nurses may also be permitted to testify as experts in criminal cases.

In an opinion filed Oct. 7 in the case of White v. Behlke, OB-GYN Consultants, LTD., No. 03-CV-2663 (C.P. Lackawanna 2009), Judge Terrence Nealon addressed the novel issue of the amount of the appellate security/supersedeas bond that must be filed by a defendant and/or the defendant's insurer when the jury verdict far exceeds the total amount of the available insurance coverage.

According to Nealon, the question presented appeared to be a matter of first impression in Pennsylvania and there was no reported decisional precedent found on this issue in Pennsylvania prior to this opinion.

The case involved the proper amount of bond on appeal in a case where medical malpractice defendants had been hit with a $20 million verdict that ballooned to $27 million once delay damages were added.

Nealon noted that a party filing an appeal may obtain an automatic supersedeas against an execution on that judgment "upon the filing with the clerk of the lower court an appropriate security in the amount of 120 percent of the amount found due by the lower court and remaining unpaid."

Whereas the plaintiffs were seeking the payment of a security based upon the amount of the verdict, the defendants were seeking a reduction of that amount as allowed under Pa.R.C.P. 1731(h).

Ultimately, Nealon reviewed case law from other jurisdictions and held that the defendant hospital was only required to post bond in the neighborhood of its available policy limits given that the terms of that insurance policy obligated the insurer to furnish a bond in an amount not to exceed its policy limits and its proportionate share of any delay damages awarded.

This year-end review confirms that there have been substantial changes in 2009, both on the bench and in terms of the law emanating from the bench.

It is anticipated that, in 2010, there will be continuing additions to the bench, by way of appointment, in Luzerne County as well as in the Federal District Courts across the state.

As noted above, there also appears to be a number of cases up on appeal before the Supreme Court into next year that could continue to alter the course of Pennsylvania jurisprudence in civil litigation matters as this first decade of the new century comes to a close. •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. Cummins' civil litigation blog, "Tort Talk," may be viewed at

This article originally appeared in the November 30, 2009 edition of the Pennsylvania Law Weekly, a statewide legal news publication.(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.

12 Dumbest Driving Laws

For your reading enjoyment, I pass along this link to a somewhat humorous 10/17/08 article by Holly Rizzo entitled "Well, Ticket My Funny Bone," outlining silly driving laws from around the nation: