Wednesday, March 3, 2010

Phildelphia County Post-Koken Decision Reconsidered and Reaffirmed

I recently reported on a post-Koken decision that had 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.). On the first time around, Judge Patricia McInerney sustained the preliminary objections filed by the tortfeasor and ordered the case transferred to Chester County on a venue argument and also severed the third-party case from the underinsured motorist claim against Nationwide.

That prior decision was by Order only, without any Opinion. The Plaintiff in Zerggen filed a Motion for Reconsideration. The court vacated its original decision and the parties awaited the Court's reconsideration of the matter

Then on March 3, 2010, Judge McInerney issued her reconsideration Order. In this Order, the Judge ruled upon Defendant Reitman's preliminary objections to the Plaintiff's fourth Amended Complaint.

The Court now ruled that the preliminary objection asserting improper venue was overruled.

The Philadelphia County Court also ruled that the preliminary objection by the tortfeasor defendant on misjoinder of a cause of action was overruled "without prejudice to the Defendants making a motion to sever to be decided by the trial judge or filing a petition pursuant to Pa.R.Civ.P. 1006 (d); otherwise, the Defedants and the causes of action shall remained joined...."

Anyone desiring a copy of this recent Order (without any Opinion) may contact me at

Defense counsel for the tortfeasor is Ronald Marrero Esq. and counsel for Nationwide is Victor M. Verbeke, Esq. I thank Attorney Verbeke for keeping me advised on the progress of this case.

I note that the Zerggen Philadelphia County case was initially in favor of a severance of the claims and was thereby 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.]

With this new decision denying severance, the Zerggen case is now consistent with the previously noted Philadelphia County cases on this issue.

The hope remains that a trial court judge somewhere along the line will 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.

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