Tuesday, February 9, 2010

Another Recent Post-Koken Decision

A recent post-Koken decision has been handed down in Philadelphia County in the case of Zerggen v. Rietman and Nationwide Insurance, No. 0906 of 1752 June Term 2009 (Phila. Co. Jan. 20, 2010 McInerney, J.). Judge Patricia McInerney sustained the preliminary objections filed by the tortfeasor and transferred the case to Chester County on a venue argument and also severed the third-party case from the underinsured motorist claim against Nationwide.

The decision is by Order only, without any Opinion. Anyone wishing to receive a copy of the Order from Zerggen may contact me at dancummins@comcast.net.

The Plaintiff in Zerggen has filed a Motion for Reconsideration. Perhaps an Opinion will be forthcoming from the court thereafter.

Defense counsel for the tortfeasor is Ronald Marrero Esq. and counsel for Nationwide is Victor M. Verbeke, Esq.

I note that the above Philadelphia County case in favor of a severance of the claims is in conflict with the previous Philadelphia County cases I have seen of Richard Hess v. Cosgrove et al., Phila, July Term, 2008, no. 3708 (request to sever UIM claim and third party claim denied) and Kelly Hess v. Dickel, et al., Phila, October Term, 2008, no. 3220 (request to sever UIM claim and third party claim denied). [I do not have copies of those opinions on hand.]

Thus, in addition to some conflicting decisions from different counties around the Commonwealth on the consolidation (19 decisions) vs. severance (5 decisions) issue, there is now a split of the authority from within the Philadelphia County Court of Common Pleas. All the more reason for some trial court judge to hopefully grant permission for this issue to go up on an interlocutory appeal to the Superior Court so that members of the bar, as well as the trial court judges, can secure some appellate guidance on how to handle this issue.

For more details on the county-by-county handling of this issue by the trial courts, please click on the Post-Koken Scorecard down on the right hand column of this blog.

I thank Attorney Verbeke for bringing the Zerggen case to my attention.

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