Wednesday, March 31, 2010


This article of mine is reprinted here, with permission, from the October 22, 2007 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.

Don’t be upset – use them as a motivator to improve, and discredit their sting



Lawyer jokes are an amusing, sometimes annoying, part of the practice. You’ve heard one, you’ve heard them all. With the negative sting of many of the lawyer jokes, it is easy to wince and give a wan smile while others laugh out loud with forced glee at the telling of such jokes.

Q: What’s the problem with lawyer jokes?

A: Lawyers don’t think they’re funny, and no one else thinks
they’re jokes.

Unfortunately, it is said that jokes in general require some modicum of truth to help make them funny. The act of getting upset at being the brunt of such jokes may lend them credence and may only serve to foster the telling of lawyer jokes. Perhaps a better way to react to lawyer jokes is not to be upset by them, but rather to use them as a motivator to better your practice and thereby contribute to improving the image of attorneys as a whole.

Q: How do you get a group of lawyers to smile for a picture?

A: Just say, “Fees!”

A main complaint by the public with lawyers is the fees charged and the manner in which they are charged. One way to avoid such criticism is to, wherever possible, politely remind the client that the result they seek, or have obtained, may not have been realized without the legal expertise provided.

In other cases where a favorable result for the client is not likely, the better practice may require an attorney to be up front with clients early in the attorney-client relationship about the futility of their claim or defense. This may serve to streamline the case, result in a quicker resolution, and save the client money in the long run, thereby improving the reputation of the attorney in terms of fees saved as a result.

Another way to avoid client complaints regarding the fees charged is to provide detailed, itemized bills that fully describe the services rendered. Clients may also be better served, as well as attorney reputations, if the clients are not unnecessarily double billed in the form of multiple attorneys or staff working on a single task.

Where a dispute arises with the client over attorney charges, it may also be the better practice to immediately attend to client questions about a bill with a willingness to compromise hopefully being present on both sides of the issue. A satisfied client obviously may be a repeat client or a source of other referrals. Therefore, a squabble over a few dollars in a present matter may not be worth the cost of other cases that could be realized in the future.

Another proactive way lawyers may offset the negative public perception regarding attorney fees may be through giving back to the community. Donations to local charities, volunteering time at local fundraisers, and participating in pro bono legal work all serve to display attorneys in a better light.

Q: Did you hear about the lawyer hurt in an accident?

A: An ambulance stopped suddenly.

There is probably no more common complaint against attorneys than their sometimes voracious pursuit of new clients. Yet, in a competitive world with a glut of attorneys, it appears that seeking out clients and attorney advertising is a necessary evil to support one’s practice.

Lawyers are commonly criticized for their rampant and sometimes crass advertisements and commercials. Perhaps a way to blunt such criticism is to instill more creativity into the advertising, maybe even humor, as opposed to the standard commercial of a somber attorney lamenting the woes of personal injuries and his or her ability to make all well again through a lawsuit.

One way to perhaps attract other clients is to include past clients in the advertising praising the positives of their experience with that attorney or firm. In this manner, rather than having the attorney patting himself on the back, the public will be hearing another member of the public speaking favorably of his or her experience.

In any event, attorneys should be mindful of the Rules of Professional Conduct 7.2 and 7.2 regarding “ambulance chasing” or direct contact with potential clients. Generally speaking, direct in-person solicitation of a prospective client by a lawyer is also frowned upon by the disciplinary board and should be avoided.

Q: What do you get when you cross a librarian with a

A: All the information you need, but you can’t understand a word of it.

* * * * * * *

Q: What do you get when you cross the Godfather with a

A: An offer you can’t understand.

Another common complaint about lawyers and legislators is their obstinate refusal to speak in plain, ordinary terms. Lawyers insist on using big words when little words would suffice [uh, when little words would do]. Legal jargon and Latin terms are still routinely used even though they should be avoided wherever possible when dealing with the public.

The problem of some lawyers refusing to utilize plain language has grown to the extent that awards are given out by the Bar when a lawyer is found to have fostered the use of plain English in his practice. So perhaps lawyer jokes in this regard can serve as a reminder to use plain English in our speech and writing whenever possible.

Q: How many lawyers does it take to change a light bulb?

A: None, they’d rather keep their clients in the dark.

Since the dawn of legal practice, clients have complained about the failure of lawyers to keep them apprised as to the status of their case. The problem had apparently more recently become so common that Rule of Professional Conduct 1.4 was promulgated which, in part, requires every attorney to “promptly comply with reasonable requests for information” and to otherwise “keep the client reasonably informed about the status of the matter.”

Perhaps if attorneys strived to keep their clients informed with a call or a letter every thirty to sixty days, there would be one less ‘how many lawyers does it take to change a light bulb’ joke.

Q: “You seem to be in some distress,” the judge said to the witness. “Is anything wrong?”

A: “Well, your Honor,” said the witness, “I swore to tell the truth, the whole truth, and nothing but the truth, but every time I try, some lawyer objects.”

The lesson to take from this joke is to keep objections to a minimum at trial. By objecting only when truly necessary, an attorney may be able to avoid the public perception, by a jury no less, that the attorney is attempting to hide something, or worse yet, is a bully.

To prevent any adverse inferences by the jury to an objection, it may also be wise to give a short explanation for the basis of the objection. Giving this short explanation may not only explain to the jury the valid reason for the objection, but may also be crucial for properly preserving the objection as a basis for an appeal.

It may also be wise, whenever possible, to keep sidebar conferences with the judge to a minimum. Despite the best of instructions to a jury from a judge that sidebar conferences are a necessary part of a trial to deal with tangential issues, a jury will likely always feel that something is being kept from them and will also grow impatient with the delays caused by the conferences. The better practice may be to anticipate issues that may arise and address them with the court before the jury is brought into the room and put into the jury box.

Q: What’s the difference between a good lawyer and a great lawyer?

A: A good lawyer knows the law. A great lawyer knows
the judge.

This joke brings to mind scenes from The Verdict with Paul Newman and Civil Action with John Travolta and Robert Duvall in both of which movies is a pivotal scene in which the underdog lawyer is called into the judge’s chambers only to find the more experienced opposing counsel already in chambers having a friendly ex parte chit-chat with the judge. While friendly and courteous relations are to be encouraged between lawyers and the bench, attorneys and judges should strive to avoid the perception of the public, and of out-of-town attorneys, of any favoritism once the matter gets underway.

Q: How many lawyer jokes are there?

A: Just three, all the rest are true.

Lawyer jokes have unfortunately been an undying breed since the time of Shakespeare. Even up to today, on any given week, Leno or Letterman will unleash a zinger against lawyers to the delight of their audiences. On the internet, a simple Google search will reveal numerous web pages devoted to lawyer jokes.

While such jokes may never become extinct, their impact can be lessened by improved attorney conduct. Unfortunately, lawyers are not always adept at displaying themselves in the best light possible which is in part due to the adversarial and competitive nature of the practice. There will also always be some bad apples who will continue to highlight and foster a negative view of lawyers as a whole.

Yet, continued efforts by all members of the bar to better the image of lawyers through open and plain communication, professional and courteous behavior in the public eye, community service, and the zealous but sensible pursuit of justice on behalf of clients can all only serve to discredit the sting of lawyer jokes.

Daniel E. Cummins, Esquire is an insurance defense/coverage attorney with the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins ( In addition to being a civil litigation columnist for the Pennsylvania Law Weekly, he also writes for his own blog, Tort Talk, which provides updates on Pennsylvania civil litigation and insurance law issues (

Tuesday, March 30, 2010

Recent Defense Verdict in Columbia County Medical Malpractice Case

Last Friday, March 26, 2010, a defense verdict was entered in the Columbia County Court of Common Pleas in the medical malpractice case of Carol Ann Kowalski and Michael Kowalski v. Bloomsburg Hospital and Robert Meloy, M.D., No. 2006-CV-843 MD (Columbia Co.).

Plaintiffs were represented by William Anzalone and Jamie Anzalone of the Anzalone Law firm in Wilkes-Barre, Pennsylvania. The individual doctor defendant was represented by James Doherty, Jr., Esquire and James Doherty, III, Esquire of the Scranton law firm of Scanlon, Howley & Doherty. The presiding Judge was the Honorable Scott W. Naus.

The case involved Plaintiff, Carol Ann Kowalski, who was recovering at the Bloomsburg hospital from a right knee replacement surgery, which took place on June 29, 2005. The surgery was performed by a Dr. Williams who placed the Plaintiff on a patient controlled morphine pump and ambient sleeping pill, as necessary. The patient was under the care of the hospital nursing staff from 10:30 p.m. on 6/29/05 until 7:00 a.m. on 6/30/05. During the course of the evening the patient was given a sleeping pill, pursuant to the surgeon’s order and her monitoring was all normal during the course of the early morning hours.

The Defendant, Dr. Meloy, an internist, was performing rounds on 6/30/05 on behalf of the surgeon Dr, Williams. Dr. Meloy was informed by the nurses that the patient was doing fine, her vitals were normal and that she was resting comfortably after having fallen asleep at 3:00 a.m. Dr. Meloy performed a preliminary evaluation on the patient and confirmed the findings of the nursing staff and then advised be would be back later to do a full physical exam after the patient woke up. Approximately 30 minutes later the patient was found to be in an alleged morphine overdose state.

Plaintiffs alleged that the Plaintiff suffered permanent frontal lobe brain damage from a morphine overdose, which they allege should have been identified in advance by the nursing staff and by Dr. Meloy at the time of his initial evaluation.

The defendant doctor, on the basis of the expert testimony presented, essentially argued that, as a doctor on rounds, it was within a reasonable standard of care for him to rely upon the representations of the nursing staff that cared for the Plaintiff through the night before and to defer a full examination of the patient until she woke up, particularly where there were no signs of distress.

No evidence was entered against the hospital by Plaintiffs at trial. Rather, the Plaintiffs focused their case on the Defendant doctor.

Plaintiffs’ experts:

- Dr. Richard Millman – standard of care for internist – From Rhode Island
- Ronald Burch, M.D., Ph.D (pharmacology)
- Michael Raymond, Ph.D (neuropsychologist)
- John Kline, Jr. , M.D. (physiatrist)
- Mona Yudkoff, RN – life care plan of over $1.5 million

Defense experts

- Gregory Kane, M.D. (internist at Jefferson)
- Wayne E. Dubov, M.D. (physiatrist)

Defense verdict:

Jury was out only approximately 40 minutes before returning with a defense verdict in favor of both Dr. Meloy and the Bloomsburg Hospital.


On Wednesday, August 18, 2010, the Northeastern Pennsylvania Trial Lawyers Association and the Pennsylvania Defense Institute will combine to put on a CLE Seminar at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.

There will be three one hour presentations - an Auto Law/Post-Koken Update, a Bad Faith Update, and an Ethics hour with a panel of Judges. The seminar will be followed by a Happy Hour at the Breakers bar in the casino.

More details to follow at a later date.


The Howard Gardner School for Discovery, a private, non-sectarian pre-school through eighth grade school located in Scranton, Pennsylvania is holding its Annual Golf Tournament on Saturday May 8, 2010 with a 12 noon Registration and a 1:00 p.m. Shotgun Start at the Pine Hills Golf Course located in Taylor, Pennsylvania.

All proceeds generated from this Golf Tournament will be used for school programming and tuition assistance.

Anyone desiring to explore sponsorship/advertising opportunities or wishing to golf in the Tournament may contact me at for a Registration Form.

Monday, March 29, 2010

PennDOT Reports Record Low Number of Highway Deaths in 2009

According to officials from the Pennsylvania Department of Transportation, the number of highway fatalities in Pennsylvania in 2009 dropped to 1,256, the lowest number since record-keeping began in 1928. The previous low number was from 1944. In 2008, the number of highway deaths was 1,468.

Significant decreases were also noted in unrestrained, alcohol-related, and aggressive driving fatalities. PennDOT attributed the reductions, in part, to the increased funding that led to an increase in traffic safety programs and an increase in law enforcement efforts to crack down on impaired and/or aggressive drivers. Another factor may have been the implementation of low-cost safety engineering measures like the rumble strips on shoulders, center line rumble strips, signage improvements, traffic signal improvements and safer utility pole placements.

Other factors may be that drivers were driving less, or slower, with the increased gas prices and the poor state of the economy over the past year or so.

Source: Triple-A North Penn News, March-April, 2010 edition.

Sunday, March 28, 2010

Recent Cases of Note

Harlan v. Pennsylvania State Police et al., PICS Case No. 10-1506 (Lawrence Co. March 4, 2010 Cox, C.J.).

Limited Tort Motion for Summary Judgment denied.

The Plaintiff was injured as a result of being rear-ended by a State Police cruiser that was responding to a call. The Plaintiff alleged injuries to his head, neck, shoulders, arms, hands and back. He missed work over the first three days after the accident.

The Plaintiff eventually underwent a wrist surgery and two shoulder surgeries followed by lengthy sessions of physical therapy. The Plaintiff also missed several months of work following each surgery. He also testified that he was prevented from enjoying his pre-accident activities of archery hunting, fishing, and working on automobiles. He also modified how he drove and the manner in which he did his lawn work.

Viewing the case in the light most favorable to the Plaintiff, the court denied the defendant's limited tort motion for summary judgment and allowed the case to proceed to a jury on the question of whether the Plaintiff sustained a serious injury.

Summerson v. HRI Inc., PICS Case No. 10-1455 (Centre Co. March 9, 2010 Grine, J.).

The trial court granted a defendant's Motion in Limine seeking to preclude a witness to an auto accident, who was a firefighter, from testifying on topics within his expertise as a firefighter and what he had experienced at other accidents.

The Court held that witnesses to a motor vehicle accident may only testify regarding their observations on the day of the accident and may not testify regarding observations of similar scenes on different days.

The Court relied upon Pennsylvania Rule of Evidence 701 and stated, "If the witness is not testifying as an expert, the witness' testimony in the form of opinion or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness, helpful to a clear understanding of the witness' testimony or the determination of a fact issue, and not based on scientific, technical or other specialized knowledge."

Motion in Limine of Defendant granted.

If you desire a copy of these cases, you may secure them for a small fee by calling the Pennsylvania Law Weekly's Instant Case Service (1-800-276-7427) and giving the noted PICS Case Numbers.

Source: "Case Digests" of March 23, 2010 Pennsylvania Law Weekly.

Thursday, March 25, 2010

Local Ordinance Passed In Allentown, PA Banning Hand-Held Devices While Driving

Following up on my recent article "Hang Up and Drive" (, concerning the legalities of the use of cell phone and texting devices while driving, I came across a recent article in the Morning Call, an Allentown newspaper, noting that, as of March 19, 2010, it's a crime to use your hand-held device to make a phone call, text or browse the Web while driving on Allentown's streets.

Under the ordinance, if someone is caught in the act during the first 30 days this ordinance is in effect, only a written warning will be received. Once the grace period ends, violators will face fines of $150 to $300.

The article noted that enforcement of the ban will most likely be in combination with another motor vehicle violation, such as speeding or ignoring a stop sign, but police are prepared to issue single violations for cell-phone use.

Motorists in Allentown may use hands-free devices. However, you may still have to handle your phone while dialing or answering a call, and that could lead to a ticket. City officials recommend pulling over to dial or answer a call.

To view the complete article for more information, go to

Wednesday, March 24, 2010

Conflicting Decisions Out of Philadelphia County on Issue of Proper Venue in Post-Koken Cases

I recently was made aware of two conflicting decisions out of Philadelphia County in post-Koken cases on the issue of proper venue. These cases were distinguishable from the previous post-Koken cases reported on the venue issue in that, in these two new cases, the UIM carrier's policy did not have a forum selection clause delineating where the lawsuit should be filed. The carrier in both cases was State Farm.

To review my recent article in the Pennsylvania Law Weekly analyzing those prior cases that involved the separate venue issue in the context of UIM policies containing a forum selection clause, go to the "JDSupra" box down on the right hand column of this blog and click on the title "Tracking 'Hurricane Koken.'"

In the absence of any agreed upon forum selection between the parties, Rule 1006 governs and generally provides that proper venue is where the accident occurred or where a defendant resides or regularly conducts business.

In the case of Sehl v. Neff and State Farm, May Term 2009 No. 2487 (Phila. Co. Oct. 22, 2009 Allen, J.) both the accident and the residence of the third party tortfeasor were situated in Montgomery County. Nevertheless, the plaintiff filed suit in Philadelphia under an argument that the UIM carrier, State Farm, regularly conducted business in that county.

The Sehl court accepted the tortfeasor defendant's argument that, since the tortfeasor defendant and the UIM carrier were not joint tortfeasors, or were not jointly or severally liable to the plaintiff, then the plaintiff could not compel the tortfeasor defendant to litigate the case in any county where the UIM carrier allegedly could be sued.

Judge granted the tortfeasor defendant's preliminary objections based upon improper venue and ordered the case transferred to Montgomery County.

Plaintiff's counsel has filed an appeal on this issue to the Superior Court and the parties await the Rule 1925 Opinion from the trial court.

In the other Philadelphia County case of Campbell v. Kelly and State Farm, December Term 2009 No. 208 (Phila. Co. March 12, 2010), the similar scenario of involved a Bucks County car accident and a Bucks County resident third party tortfeasor. The plaintiff in that matter also filed the suit in Philadelphia County under the same argument that venue was proper there given that the UIM carrier, State Farm, regularly conducted business in that county.

In this case, the trial court reached an opposite decision and denied the tortfeasor defendant's preliminary objection based upon improper venue. The tortfeasor defendant has filed a motion for reconsideration and has provided the Campbell court with a copy of the Sehl decision to review. Also filed by the defense was a motion seeking permission to file an interlocutory appeal on the issue.

Of course, there may be other venue decisions out there that I am not aware of and the hope is that the attorneys involved in these types of cases will publicize the decisions in order that a consistent common law be created.

Anyone desiring a copy of the above Orders may contact me at

I thank defense counsel John McGrath, Esquire of the law firm of Palmer & Barr, P.C. in Philadelphia for bringing these cases to my attention.

Pennsylvania Supreme Court Rejects Appeal in Pusl v. Means

Here is a link to the March 23, 2010 Order of the Supreme Court denying the Petition for Allowance to Appeal in the case of Pusl v. Means:

Pusl was the case in which the Superior Court held that, where an injured party from an automobile accident secures a UIM recovery first, the third party tortfeasor defendant is entitled to a credit against any verdict entered him or her in the amount of any UIM recovery received by the injured party so as to prevent a double recovery by the injured party at trial.

For example, in Pusl, the plaintiff settled the UIM claim prior to trial for $75,000 and went on to secure a jury verdict of 100,000 against the tortfeasor. Since there was no evidence of whether subrogation was waived by the plaintiff when the UIM claim was resolved, the Superior Court molded the verdict to 25,000.

For further analysis of the Superior Court's decision in Pusl, here is a link to my prior posting summarizing that opinion:

It is anticipated that plaintiff's attorneys will now take the strategy of either accepting an assignment of the UIM subrogation rights for consideration or will refrain from getting consent and waiver of the UIM carrier. Plaintiff's attorneys may also be seeing the Pusl case as an additional reason that one would need to join the third party and UIM carrier in the same case, especially where the same carrier is involved on both sides.

Here's a tip for defense counsel. Although the Superior Court in Pusl indicated it was not required, out of an abundance of caution, it may be wise to plead in the New Matter the entitlement to a credit against the jury verdict in the amount of any UIM award previously secured by the Plaintiff.

This is the language I have been using recently:

"The answering Defendant(s) is/are entitled to a credit or offset in the amount of any uninsured (UM) or underinsured (UIM) settlement, award, or recovery secured by the Plaintiff relative to the same motor vehicle accident that is the subject of this litigation in the above-captioned action."

Tuesday, March 23, 2010

Summary Judgment Secured in Slip and Fall Case Against Municipality in Lackawanna County

My partner, Timothy E. Foley, Esquire and myself were successful in securing a summary judgment for the defense in the slip and fall case of Gerrity v. The City of Scranton, No. 07 CV 6476 (Lacka. Co. March 17, 2010 Leete, S.J.).

The Plaintiff alleged injuries as a result of allegedly slipping and falling on ice and/or snow that had accumulated in the area of a depressed or sub-grade manhole cover on a City of Scranton alleyway.

The defense argued that, under Pennsylvania law, municipalities were not liable and/or enjoyed immunity from liability for injuries caused by naturally accumulated ice or snow on city streets under the Political Subdivision Tort Claims Act. It was additionally asserted that the immunity afforded to the City was not defeated by the application of the Streets Exception of the statute. Lastly, the defense asserted that, regardless, the Plaintiff was unable to prove any actual or constructive notice on the part of the City of any allegedly dangerous condition of the snow or ice on the roadways.

Specially Presiding Senior Judge John Leete, of Potter County, presided over this argument. In his Opinion and Order he found, as a matter of first impression and viewing the evidence in a light most favorable to the Plaintiff, that the Plaintiff's fall was potentially caused, in part, by the uneven surface created by the below-grade manhole cover which was part "of," rather than merely located on, the street. He further noted that "[a]ny snow accumulating therein could thus be seen as being exacerbated by an artificial condition sufficient to fall under the 'streets' exception."

However, Judge Leete went on to find that the Plaintiff failed to sustain his burden of showing any actual or constructive notice of any such allegedly dangerous condition so as to warrant a submission of the case to a jury. As such, summary judgment was entered in favor of Defendant, The City of Scranton.

Anyone desiring a copy of this Opinion may contact me at

New Atlantic Second (A.2d) Reporter Citations For Recent Cases of Note

Here are a few new Atlantic Second (A.2d) Reporter citations for the following recent cases of note:

E.D.B. ex rel. D.B. v. Clair, 987 A.2d 681 (Pa. 2009)(Minor child's tort settlement was subject to State Medicaid lien.).

Erie Ins. Exchange v. Larrimore, 987 A.2d 732 (Pa.Super. 2009)(Insured's application and "Important Notice" information did not qualify as request in writing for reduced UIM coverage.).

Johnson v. Progressive Ins. Co., 987 A.2d 781 (Pa.Super. 2009)(Insurer did not act in bad faith during its processing of its insured's underinsured motorist (UIM) claim.).

BOOK REVIEW: Making Your Case: The Art of Persuading Judges by Justice Antonin Scalia and Bryan A. Garner

This is a reprint of an article that appeared in the March/April 2010 edition of The Pennsylvania Lawyer magazine.


Book Review


Daniel E. Cummins, Esquire

Daniel E. Cummins, Esquire is an insurance defense/coverage attorney with the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins ( He also writes for his own blog, Tort Talk, which provides updates on Pennsylvania civil litigation and insurance law issues (

Making Your Case
The Art of Persuading Judges
By Antonin Scalia and Bryan A. Garner
Thomson/West, 245 pp. $29.95

Who better to provide tips on appellate brief writing and oral argument than Justice Antonin Scalia, a Justice of the United States Supreme Court with nearly 25 years on that Bench? So thought Bryan Garner when he combined with Justice Scalia to create their recently published book, Making Your Case: The Art of Persuading Judges.

Co-author Bryan Garner is no lightweight himself. He is a lawyer and an expert grammarian who, in addition to serving as the editor in chief for Black’s Law Dictionary, has also written several books of his own on legal writing and proper grammar.

The over-riding message of both authors with respect to both brief writing and oral argument is to strive for simplicity in all areas. As they succinctly state, a lawyer’s job is “to make a complex case simple, not a simple case complex.”

In terms of brief writing, the authors exhort the reader to “treasure simplicity” through the use of tight sentences and coherent paragraphs that easily flow into one another. Stylistically, both Scalia and Garner rail against the use of bold typeface and underling of words and citations. The authors also humorously warn against the excessive use of italics, noting that “[c]onstant italicizing gives your brief the tone of an adolescent diary….”

While primarily consistent with each other’s opinions on proper brief writing, Justice Scalia, as he is wont to do, dissented on a few points. For example, while Garner suggests that the use of contractions (can’t, don’t, that’s) may not be entirely improper in a brief and can serve to assist in the flow of a sentence, Justice Scalia, showing his conservative bent, summarily rejects contractions as having no place in proper legal writing.

Justice Scalia also scoffs at Garner’s separate suggestion elsewhere in the book that perhaps legal writing would benefit from citations being taken out of the text and placed instead in footnotes, again to ease the flow of the brief reader’s eyes across the page. Scalia countered by arguing that attorney’s eyes are trained to read through citations in the text.

He also noted that it is important that the signals at the beginning of citations be in the text to show the reader the import of the citation. Justice Scalia made the additional excellent point that the placement of citations in footnotes would frustrate the normal flow of the reading of a brief by causing the reader’s eyes to continually shift back and forth from text to footnotes in an irritating fashion in order to follow the argument.

Having a proper flow was also the underlying theme of the tips provided with respect to oral argument. The authors again emphasized the goal of keeping matters as simple as possible in oral presentations as there is no credit given by the court for eloquence.

Common sense recommendations such as using simple words, avoiding words you do not know how to pronounce, and looking the judge in the eye during argument were provided. The authors also promoted simplicity in recommending that attorneys only come to court with the materials they need so as to avoid any frantic and distracting shuffling of papers during argument.

The authors also give excellent advice on how to structure the order of one’s argument, depending upon whether one represents the appellant or the appellee. Numerous tips are also given on how to prepare for numerous interruptions in the form of comments and questions from the bench. Justice Scalia and Mr. Garner also emphasized the always applicable advice of preparing for argument by viewing the case from your opponent’s perspective in order to cover all possible grounds and weaknesses applicable to one’s own case.

With regards to the oral presentation to the court, Scalia and Garner also strongly urge the reader to voice his or her argument in a firm and positive fashion as if presenting a correct statement of the law and its application to the case at hand as opposed to one’s opinion as to what the decision should be.

Making Your Case by Justice Antonin Scalia and Bryan A. Garner is an excellent resource that has its place on the shelf of every law office library to consult time and again. Written in a “conversational style,” the book is an easy read that, on its surface, consists of detailed lessons and reminders useful for improving one’s written and oral argument skills.

On a deeper level, the book can also be utilized as a motivating tool that can give one the confidence of appearing before any court, at the trial or appellate level, armed with the knowledge that the case is being advocated through brief writing and oral argument in a manner that would be approved by a learned Justice of the United States Supreme Court. Such could be the difference between making your case or not.

Monday, March 22, 2010

New Link To Drug and Device Law Blog Added

I recently added a link from this blog to the Drug and Device Law Blog, written by Attorney James Beck and a few of his fellow attorneys at the Philadelphia office of the law firm of Dechert, LLP.  For future reference, if you scroll down the right hand side of this blog to the list of "Links" you will see the link to the Drug and Device Law to click on whenever you want to check it out.

Attorney Beck has periodically provided me with tips on important new cases that I have publicized here on Tort Talk.  His blog provides excellent updates in his area of the law.  For example, click on this link to view a recent post of his providing an excellent analysis of the recent developments in Pennsylvania products liability law:

Sunday, March 21, 2010

New Post-Koken Case Out of Allegheny County

Judge Gene Strassburger of the Allegheny County Court of Common Pleas issued a March 2, 2010 Opinion and Order severing a third party claim from a UIM claim and Bad Faith claim against the carrier in the case of Wutz v. Smith and State Farm, GD07-021766 (Allegh. Co. March 2, 2010 Strassburger, J.).

In this case, the Court was faced with a joint motion by the Defendants to preclude any mentioning of insurance during the trial of the matter.  The Court was also considering the Plaintiff's motion to sever the claims and the Plaintiff's request to proceed first on the UIM and bad faith claims.

In Wutz, there was a little twist on the ordinary scenario.  The third party tortfeasor was covered by a Progressive Insurance $15,000 liability policy, which was offered in settlement.  Pursuant to the consent to settle clause in the UIM policy, the Plaintiffs sought out State Farm's consent to settle.

The indications were that the Plaintiff was going to accept a settlement with the tortfeasor.  Removing the tortfeasor from the case would take this matter out of the Allegheny County line of cases that held that evidence of "insurance" was not admissible at trial where the tortfeasor was still in the case.

Exercising the option given by the case of Daley-Sand v. West American Ins. Co., 564 A.2d 965 (Pa.Super. 1989), to either consent to the settlement or, instead, pay the settlement amount and be subrogated to the Plaintiff's claim against the tortfeasor, State Farm elected to pay the $15,000 settlement offer to the Plaintiff.  Accordingly, this case now contained State Farm's subrogated claim against the tortfeasor.  State Farm apparently believed that this scenario would implicate the line of cases holding that "insurance" issues were not admissible in these post-Koken trials still involving the tortfeasor.

Judge Strassburger rejected State Farm's position that "insurance" should not be mentioned in these types of trials involving both a tortfeasor and a UIM carrier under an argument that such evidence would prejudice the tortfeasor.  The Judge noted that, in the context of this case, there really was no "live" dispute between the Plaintiff and the tortfeasor given State Farm's action in paying the settlement amount offered by the tortfeasor.

Since there was no longer any live dispute against a tortfeasor in this matter, Judge Strassburger also thought it appropriate to sever the cases and to allow the Plaintiff to proceed on the UIM and bad faith claims first.  The Judge noted that, under the Gunn decision issued by Judge Wettick in Allegheny County, the UIM trial by jury would be first, followed by a non-jury bad faith trial with the same judge.  Judge Strassburger also denied the Defendants' request to keep out references to insurance.

Judge Strassburger noted that State Farm could proceed on its trial against the tortfeasor thereafter if it still desired to do so.

Whew!  This stuff is getting complex!  Please be reminded that I am keeping a Post-Koken Scorecard which you can access by scrolling down the right hand column of this blog and clicking on the reference to the Scorecard.

Anyone desiring a copy of this Wutz v. Smith and State Farm decision may contact me at

Wednesday, March 17, 2010

Pennsylvania Supreme Court Agrees to Hear Important Attorney-Client Privilege Issue - Again

In an Order handed down yesterday, March 16, 2010, the Pennsylvania Supreme Court granted allocatur in the case of Gillard v. AIG Insurance Company, et al., 72 EAL 2008 (Pa. 2010) to address two issues of importance to civil litigators:

(a) Whether the attorney-client privilege applies to communications from the attorney to the client.

(b) Whether the Superior Court erred in holding the attorney-client privilege applies only to confidential communications from the client to the attorney, pursuant to Nationwide Mutual Insurance Company v. Fleming, 924 A.2d 1259 (Pa.Super. 2007).

It will be interesting to see how this one plays out. At first glance, it appears academic that communications from the attorney to the client should also be considered privileged--but you never know.

You may recall that I recently reported here ( that, on January 29, 2010, the Pennsylvania Supreme Court issued a 2-2 per curiam split decision in the attorney-client privilege case of Nationwide Mut. Ins. Co. v. Fleming, 2010 WL 336171, No. 32 WAP 2007 (Pa. 2010). Only four Justices took part in the decision because Justices Debra M. Todd and Seamus McCaffery had to recuse themselves, having sat in on the same case when they were previously on the Superior Court. The Court was also down a Justice at the time this case was considered because of a retirement.

Justices J. Michael Eakin and Max Baer voted to affirm the Superior Court's decision and Justices Saylor and Chief Justice Castille voted to reverse. Under the rules of the Court, the 2-2 split means that the Superior Court decision on the attorney-client privilege issue was affirmed.

The Superior Court in Fleming ruled that the privilege only protects confidential communications from a client to an attorney in connection to the providing of legal services. That is, the Superior Court decision appears to stand for the proposition that the attorney-client privilege only applies to information given to the attorney by the client and not the other way around.

As stated, the split decision of the Supreme Court in Fleming leaves this as the law of the land currently. Let's see what the Gillard Court does with the issue.

Thanks to Attorney James Beck of the Philadelphia office of the Dechert Law Firm for bringing this case to my attention. Check out his Drug and Device Law blog at

"Claims Rep Pet Peeves" Article Republished

My recent article "Claims Rep Pet Peeves" which was originally published on the website for Claims magazine and emailed out to their approximately 9,000 subscribers was recently picked up and republished in the March 2010 edition of the Arizona Insurance Claims Association's AICA Bulletin.

Recent Post-Koken Decision out of Philadelphia in Favor of Severance

In a February 12, 2010 decision out of the Philadelphia County Court of Common Pleas in the case of Dangler v. Robinson and AIU Insurance Company, March Term 2009, No. 4027, Control No. 09-092828 (Phila. Co. 2010 DiVito, J.), Judge Gary F. DiVito issued an Order granting the tortfeasor's preliminary objections, alleging a misjoinder of actions, in a post-Koken case.

The Judge, by Order only and without any Opinion, severed the UIM claim and ordered that it be tried separately from the third party claim.

This decision goes against at least three other Philadelphia County decisions that have denied requests for severance:

Richard Hess v. Cosgrove et al., Phila, July Term, 2008, no. 3708 (request to sever UIM claim and third party claim denied).

Hess v. Dickel, et al., Phila, October Term, 2008, no. 3220 (request to sever UIM claim and third party claim denied).

Zerggen v. Rietman and Nationwide Insurance, No. 0906 o1752 June Term 2009 (Phila. Co. March 3, 2010 McInerney, J.)(Preliminary objections filed by the tortfeasor on a venue argument denied by court; court also denied misjoinder of causes of action preliminary objection--refuses to sever the third-party case from the underinsured motorist claim against Nationwide.

For a listing of how other counties have handled this issue, click on the Post-Koken Scorecard in the right hand column of this blog.

Anyone desiring a copy of the Order may contact me at

Legislature Confirms Two New Judges to Luzerne County Bench

A March 17, 2010 article by Robert Swift in Scranton's The Times-Tribune reports that the Pennsylvania Senate confirmed the appointments of attorneys Joseph Van Jura and Lewis Wetzel to fill two vacancies on the Luzerne County Court of Common Pleas Bench. Both confirmations were by unanimous votes.

Van Jura is taking the spot vacated by former Judge Michael A. Toole who is going to prison and Wetzel will take the spot of former Judge Peter Paul Olszewski, Jr. who lost a retention bid in the last election.

Both new Judges have committed to serve out the interim term through the end of 2011 and have agreed not to run for retention at that time.

I personally disagree with the requirement that these new Judges, including recently appointed and confirmed Joseph Cosgrove, agree not to run for retention when their interim term is up. That's just another example of politics taking over where it shouldn't.

If these gentleman were worthy enough of being appointed, and if they do a good job on the bench, there should be no reason why they should be required to abide by an agreement not to run again. These are the type of high quality people we need to keep on the Bench.

What do you think? Click on "comment" below and let me know.

Conahan and Ciavarella Seek Change of Venue

According to an article by Dave Janoski in the March 17, 2010 edition of Scranton's The Times-Tribune, attorneys for former Luzerne County Judges Michael T. Conahan and Mark A. Ciavarella filed briefs on Tuesday in the federal court in support of their pre-trial motions.

The article noted that one of the motion seeks a change of venue to Delaware under the allegation that there have been over 2200 news accounts on the case since the charges were brought.

It remains to be seen how the court will rule.

Monday, March 15, 2010

Carriers Not Liable for Emergency Responder Costs

On March 5, a three judge panel of the Superior Court ruled in Safe Auto v. Berlin and McKean Hose Company, 2010 WL 760953 (Pa.Super. 2010 Bender, Shogan, Fitzgerald, J.) that an auto insurer has no liability for emergency responder costs.

According to the Opinion, during the course of the rescue, the Hose Company used emergency equipment and supplies including eight flares, two hand lights, four hand tools, one generator, one set of cribbing and a hose truck. The supplies were valued at $1,194.

One week after the rescue, on April 10, 2007, the Hose Company attempted, through Pennsylvania Fire Recovery Services, to obtain reimbursement for that amount from Safe Auto, billing the company for coverage under Berlin's policy.

In the Opinion by Judge John Bender the court affirmed the summary judgment granted by the lower court in favor of the insurer by ruling that the expenditure of emergency equipment and supplies to rescue the claimant in April, 2007, is neither a “loss” nor “property damage” under the policy.

It is noted parenthetically that the Insurance Federation joined the Pennsylvania Defense Institute in an amicus brief supporting Safe Auto.

The Opinion can be viewed online at

One somewhat related issue I have seen is whether the first party benefits carrier, or PIP carrier, has to pay for a life flight or helicopter transport of an injured party from the scene of a motor vehicle accident under the medical benefits coverage. I have seen arguments for and against whether the bill for that service is to be "paid or payable" under the injured party's policy. If it's not "payable" under the PIP coverage, then the Plaintiff can presumably recover the expense at trial.

Has anyone dealt with this issue or seen a case on it? Please let me know--click on "comment" below if you are willing to share your insight. Thanks.

Saturday, March 13, 2010

ARTICLE: A St. Patrick's Day Parade of Proverbs



Daniel E. Cummins

With the St. Patrick’s Day celebration of all things Irish many famous Irish proverbs come to mind. As the Irish have noted, “Proverbs can not be contradicted.” Applying Irish proverbs to the practice of law can be enlightening for as Irish playwright John Millington Synge once noted, “There is no language like the Irish for soothing and quieting.”

A closed mouth—a wise head.

Although the Irish are known for the gift of gab, they also recognize that sometimes, the less said the better. This can be seen in the practice of law in judicial opinions where judges write concisely in an effort to streamline their opinion on the issues presented and avoid the possibility of inadvertently raising appellate issues.

Litigators may benefit from speaking concisely when addressing the court or a jury. Another Irish instruction is to “Say little, but say it well.” For example, it is often recommended that trial counsel keep objections to a minimum so as not to irk the trial judge or appear as if one is attempting to hide something of importance from a jury. As the Irish also say, “A silent mouth never did any harm.”

Conversely, another wise Irish proverb is that “A loud voice can make even the truth sound foolish.” Bombastic and arrogant presentations by attorneys cause the immediate perception that what is being said is either devoid of merit or, at best, suspect. Efforts at tempering one’s argument in accordance with the applicable law and avoiding personal attacks on opposing counsel will only serve to add credibility to the position being advocated.

A good beginning is half the work.

Whether it be the first words spoken to a judge or jury or the opening sentences of a brief, the beginning of one’s presentation can make or break a case. Overworked judges reading hundreds of briefs and bored jurors will appreciate the fresh notion of arguments that quickly get to the point and remain there.

In terms of oral presentation to a judge or jury, first impressions last forever. The crux of an argument or the theory of the case should comprise the first words out of an attorney’s mouth. A concise description of the dispute presented and why fairness dictates a ruling in favor of one’s client should be forcefully advocated from the get-go.

With brief writing, the typical generic opening paragraphs providing a boring statement of the facts should be eschewed in favor of a more pointed story comprised of the impact facts crucial to the issue presented followed by a concise recitation of the reasons why the court should rule in one’s client’s favor.

The goal of the initial paragraphs of a brief should be to grab the attention of the reader and direct it immediately to the position advocated. Simply put, interesting writing is persuasive writing.

If a rogue deceives me once, shame on him.
If he deceives me twice, shame on me.

Unfortunately, at various times in one’s practice, attorneys have to deal with another attorney that, to use the Irish vernacular, can be described no better terms than as a scoundrel.

When dealing with such attorneys for the first time, one may make a mistake or let their guard down providing an opportunity for the other attorney to take an untoward advantage in the case. But as Irish novelist James Joyce once noted, “Mistakes are the portals of discovery.” Once it is discovered through a mistake that opposing counsel can not be trusted to play by the rules or act with professional courtesy, one can take steps to prevent the situation from occurring again.

It is unfortunate that attorneys can not always rely upon the courts for relief from vexatious and dilatory tactics of a recalcitrant opposing counsel. While such weasel-like attorneys may treat opposing counsel in a reprehensible fashion, they are usually wise enough to appear before the court in the character of Eddie Haskell, the bully from the old Leave It To Beaver television show, who always took on an oily obsequious manner whenever faced with an authority figure in order to stay out of trouble.

Judges have to be even-handed when dealing with such disputes and may not always be in a position to properly address the tactics of such an opposing counsel. One should rest assured, however, that these types of attorneys routinely appear before the court on repetitive and petty issues such that their reputation for vexatiousness becomes engrained and, hopefully acknowledged and punished.

What this Irish proverb suggests is that an attorney should keep negative tactics of a particular opposing counsel in the memory bank and share such information with other attorneys so as to limit the ability of the attorney to engage in improper or unnecessary behavior.

As sung by legendary Irish rocker Bono of U2 in the song “Acrobat,” “Don’t let the bastards grind you down.”

Remember, even if you lose all, keep your good name,
for if you lose that, you are worthless

An oft indicated principle or truth is that an attorney’s word is his bond. The Irish also proverbially quip that “A promise is a debt.” Developing a reputation for being good for one’s word and keeping promises is a virtue that can carry an attorney through his career above all else in terms of relations with the court and opposing counsel.

Without a doubt, a lawyer’s reputation precedes his interactions with all in the practice. When picking up new files, lawyers will typically first look to see who is on the other side and if that person is unknown, efforts will be made to ascertain the reputation of that attorney and how he or she handles cases.

Day in and day out, thoroughness and integrity in preparation and presentation along with punctuality and professional courtesy are the important building blocks of a solid reputation in the practice of law. Adherence to these positive characteristics will not only serve to enhance one’s stature among fellow members of the bar and the judiciary but may also allow one to secure an even more favorable result for one’s client.

If you lie down with dogs, you’ll rise with fleas.

Poor cases are often referred to in the practice as “dogs.” In developing one’s practice, while it may be understandable that an attorney may take on a few cases having difficult liability hurdles or questionable damages, it may be wise for counsel to avoid a proliferation of these cases such that one’s office turns into a dog pound.

Taking on too many troublesome cases can affect one’s reputation and the fleas from the dog cases might not only leech onto the attorney but may even possibly carry over and affect the value of the other more profitable cases in the office. As the great Irish poet William Butler Yeats once wrote, “But was there ever dog that praised his fleas.”

Accordingly, care should be taken in accepting new clients As the Irish also say, “If you put a silk dress on a goat, he is still a goat.” In other words, even the best of attorneys may not have the skills to put the shine on a tarnished case of little or no value. Attorneys may be wise to protect their reputations by refusing such cases in the first instance, or at the very least, referring them out for others to handle.

Never put off til tomorrow what you can do today.

As a catalyst for unnecessary stress, procrastination may be the worse enemy of an attorney. By continually putting off job tasks until the last moment, attorneys may be forced to scramble to complete a work product, such as a brief, and the end result is usually sub-par.

In keeping with the best possible service the client is entitled to by virtue of their entrusting their cause to an attorney, the better practice may be to look ahead to the following months deadlines and, wherever possible, immediately beginning the first drafts of any briefs, discovery requests or responses, or other written materials. In this manner, the work product can be started with sufficient time left to repeatedly revise the work product so as to strive to put out the best effort on behalf of the client.

If you dig a grave for others, you might fall into it yourself.

Stated otherwise, what goes around, comes around. The practice of law as a whole is better served by attorneys who assist one another and provide heads ups to one another of potential pitfalls.

The Rules of Professional Conduct, the Code of Civility and the PBA Working Rules of Professionalism are replete with instructions on professional courtesy. Periodic review of, and adherence to, these rules of professional conduct and courtesy can only serve to improve one’s reputation and benefit the practice as a whole.

Obviously, efforts should always be made to treat others with the respect, kindness and courtesy we would hope for in return. As the Irish also warn, “Be kind to those you meet as you rise, you may pass them again as you fall.”

A light heart lives long.

As overwhelming as the practice of law can be, with files and clients on one’s mind essentially 24 hours a day and seven days a week, it is important to attempt to maintain a balance between one’s work life and one’s life outside of work. The stress of the practice can weigh heavily on the heart over the years.

Directing all of one’s energy towards the practice of law and neglecting other aspects of life outside of the practice can quickly lead to a burnout or a disillusionment with the profession.

The great Irish dramatist George Bernard Shaw was once quoted as saying, “A day’s work is a day’s work, neither more nor less, and the man who does it needs a day’s sustenance, a night’s repose and due leisure, whether he be a painter or ploughman.”

Periodically getting away from the practice of law by vacationing or otherwise for periods of rejuvenation and a rediscovery of one’s sense of self and personal interests will inevitably make life more enjoyable and provide for a fuller existence. An attorney with a more balanced life may have a better physical and mental status and thereby be in a position to better serve his or her clients.

As this old Irish proverb proves, quality time spent with family, reconnecting with old friends, exercising, or engaging in long lost hobbies may not only add life to one’s years but also years to one’s life. May you live as long as you want, and never want as long as you live.

Daniel E. Cummins, Esquire is a partner with the Scranton, Pennsylvania civil litigation firm of Foley, Cognetti, Comerford, Cimini & Cummins ( Attorney Cummins focuses his practice on insurance defense and coverage matters all across Northeastern Pennsylvania.

This article is reprinted here, with permission, from the March 10, 2008 issue of the Pennsylvania Law Weekly (c) 2008 Incisive Media US Properties, LLC. The title of the article in the Pennsylvania Law Weekly was "A Parade of Proverbs." Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

$95 Million Dollar Jury Verdict in Lehigh County Against the 'Angel of Death'

On Friday, March 12, 2010, a Lehigh County jury of seven women and five men awarded $95 million to the decedents of eight people that serial killer Charles Cullen, the so-called "Angel of Death," allegedly murdered from 2000 to 2002 while working as a nurse at St. Luke's Hospital in Bethlehem, Pennsylvania. Plaintiffs' attorneys were Mark Altemose and Kelly Rambo.

According to an article by JD Malone in the Bethlehem Area News, the is the first civil judgment against Cullen, who has admitted to killing 29 people and attempting to kill 6 others by administering lethal doses of medication over 16 years at hospitals across the Lehigh Valley and western New Jersey.

Cullen did not participate in the civil trial. He currently is serving a life sentence in New Jersey. According to the article, Cullen has no assets to pay such a monumental verdict. In his criminal trials to date, he qualified for a public defender.

For more info on this case, click on this link to view JD Malone's article in the Bethlehem Area News:

Thanks to William Byrne, Esquire of Hoegen and Associates, located in Wilkes-Barre, PA, for bringing this article to my attention.

Thursday, March 11, 2010

Bad Faith Claim Dismissed From First Party Benefits Suit in Monroe County

In the recent first party case of O'Connor v. Erie Insurance Exchange, No. 8654 CV 2009 (Monroe Co. Feb. 9, 2010 Zulick, J.), Judge Zulick struck a bad faith claim against the carrier finding that, based upon the allegations of the Complaint, the Plaintiff's remedy was limited to those provided for under the provisions of the Motor Vehicle Financial Responsibility Law (MVFRL) pertaining to first party benefits.

The O'Connor case involved a Plaintiff who had been involved in three separate motor vehicle accidents (1995, 1998, and 2000) after all of which she alleged mental health injuries such as depression and a stress disorder.

At the time of each of these accidents, the Plaintiff was covered by an Erie policy that provided first party medical benefits of $100,000 for each accident. The Plaintiff eventually exhausted her medical benefits after the first accident as well as the second accident.

With regards to the third accident, Erie referred the Plaintiff for a psychological independent medical examination (IME) to determine whether the Plaintiff's ongoing treatment for mental health issues was caused by the 2000 accident or one of the previous accidents. Erie argued that it properly used an IME as opposed to the peer review process because the issue on the payment of the medical benefits was causation not the reasonableness of the treatment.

When that IME doctor concluded that the Plaintiff really never recovered from her mental health injuries from the first accident, Erie refused to pay further medical benefits for psychological treatment allegedly related to the third accident in 2000.

The Plaintiff responded by filing a lawsuit for breach of contract and bad faith under 42 Pa.C.S.A. 8371. Erie filed Preliminary Objections in the form of a demurrer to the bad faith claim.

Erie's basic argument was that the bad faith claim should be dismissed because the Plaintiff had a full and complete remedy available under 75 Pa.C.S.A. 1798 of the MVFRL which pertains to an "Unreasonable refusal to pay benefits." Under Section 1798, if it is determined that the carrier acted unreasonably in refusing to pay benefits, the carrier would be compelled to pay the medical expenses, any interest, and a reasonable attorneys fee to the injured party for having to fight the issue.

The Plaintiff apparently pursued a bad faith claim under Section 8371 in part because that statute provides for the additional remedies of additional interest, costs, and punitive damages.

In his opinion, Judge Zulick noted that the Pennsylvania Supreme Court has not yet addressed the issue of whether the MVFRL preempts Section 8371. After reviewing analogous precedent from other state and federal courts in Pennsylvania, Judge Zulick concluded that the Plaintiff's remedies were limited to that provided for in the MVFRL and not the bad faith statute.

Judge Zulick noted the case before him, involving the use of an IME, was slightly different from the issues in the previous precedent in that those prior decisions primarily involved the different peer review process.

Nevertheless, the judge came to the same result that the Plaintiff's remedies were limited to that provided in the specific provisions on the issue in the MVFRL pertaining to first party benefits.

The court emphasized that there were no allegations in the Complaint asserting that the carrier fraudulently corrupted the process by using a "shill" for its independent medical opinion. The suggestion by the court was that such an allegation may have been an allegation that took the case out of the scope of the MVFRL and into the ambit of the bad faith statute. As there were no such allegations, Judge Zulick dismissed the bad faith claim.

I send thanks to Erie's defense attorney Robert Panowicz, Esquire for bringing this case to my attention.

Anyone desiring a copy of O'Connor v. Erie Insurance Exchange may contact me at

I note that Judge Zulick's decision is consistent with a prior decision issued by Judge Carmen Minora out of Lackawanna County in the case of Veltri v. Travelers Commercial Insurance Company, 08-CIVIL-8534 (Lacka. Co. September 2, 2009 Minora, J.) [I do not have a copy of this decision].

In Veltri, the Plaintiff’s vehicle was struck in a rear-end collision by a tractor trailer. The
Plaintiff’s first party motor vehicle insurance carrier was Travelers. Travelers initially paid first party medical and wage loss benefits and then referred the Plaintiff for an IME.

The first IME was favorable to the Plaintiff and, as such, Travelers was compelled to continue paying first party benefits.

Thereafter, Travelers requested a second IME with a new and different physician who issued an opinion that the Plaintiff’s allegedly ongoing conditions were no longer related to the subject accident. Based upon the second IME, Travelers ceased all first party benefits.

Travelers’ decision to terminate first party benefits led to the filing of a breach of contract and bad faith Complaint by the Plaintiff.

Travelers responded with Preliminary Objections to the bad faith count of the Complaint alleging that the general tenants of the bad faith statute at 42 Pa. C.S.A. §8371 are negated by the specific remedies of the MVFRL remedies found at 75 Pa. C.S.A. §1716 and §1798.

Judge Minora denied the Travelers’ Preliminary Objections and rejected the contention that the rules of statutory construction mandate that the punitive provisions for the nonpayment of first party benefits found under the MVFRL negate or trump the general bad faith statute.

Consistent with Judge Zulick's recent decision noted above, the courtin Veltri essentially ruled that where, as here, the Complaint specifically alleges culpable misconduct both within and beyond the coverage of the specific statutes of the MVFRL, then the general bad faith statute at §8371 may additionally apply as well.

Thus, it all comes down to properly pleading separate causes of action in the Complaint. Where that is not done, a dismissal of certain claims may be secured by the carrier.

Sunday, March 7, 2010

Cell Phone Use While Driving: Bringing Attention to Inattentive Drivers

The following article of mine recently appeared in the February 22, 2010 Pennsylvania Law Weekly.

Hang Up and Drive

Lawmakers and courts tackle the hazards of cellular phone use by drivers

Daniel E. Cummins
The Legal Intelligencer
February 22, 2010

A text message exchange between two drivers:


[Translation at end of article].

There has been a great deal of attention paid to the hot topic of cell phone use and texting while driving, particularly among younger drivers. Whether all this talk results in any changes in the law on the topic remains to be seen.


"For your information," the U.S. Department of Transportation on Jan. 26 banned commercial truck drivers and bus drivers from texting while driving. Under the ban, commercial truck and bus drivers who text while driving may be subject to civil or criminal penalties and fines up to $2,750.

On the same day, the state House of Representatives approved legislation by a vote of 189 to 6 that bans the use of hand-held cell phones and texting devices by all motorists while driving. House Bill 2070 also amends Title 75 by making texting by junior drivers — ages 16 to 18 — a primary offense.

The bill makes violating the ban a primary offense in Pennsylvania, meaning that a driver could be pulled over by law enforcement for committing that offense alone. A lesser alternative being considered is making the violations a secondary offense, under which an officer could only enforce the law if the driver was first pulled over for another traffic violation.

The primary offense, as it currently stands in the proposed bill, would carry a $50 fine along with supplemental costs. The fine would be increased to $100 and supplemental costs if the violation occurred in a school zone, an active work zone, a highway safety corridor or in an emergency response zone.

HB 2070 will now move on to the state Senate for consideration. The Senate is likewise reviewing its own proposed legislation focused on younger drivers that would lengthen the time a new driver would have to practice before testing for a driver's license, limiting the number of teens in one vehicle and making the failure to wear a seat belt a primary offense for youths under age 18.

According to a Jan. 31 Scranton Times article by Robert Swift, the paper's Harrisburg bureau chief, the challenge for the legislators will be to merge the amendments dealing with teen drivers with the provisions pertaining to distracted drivers into one acceptable bill that would be approved by the Legislature and signed into law by the governor. Whether or not this can be accomplished remains to be seen.


"Quick Question:" Should a motor vehicle accident plaintiff be allowed to pursue punitive damages on a claim that the defendant driver was on a cell phone or texting at the time of the accident?

The topic of cell phone use by motorists also came up in a Jan. 14, opinion and order in the case of Linehan v. Jaludi. In that case, 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 talking on cell phone allegedly to the point of distraction at the time of a car accident.

The plaintiff in Linehan was a police officer whose police vehicle was stopped on the side of the road with the 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 crashed into the police car while the plaintiff police officer was inside of the car, allegedly resulting in 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.

Chelak 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 at this initial posture of the case.

However, citing the U.S. District Court for the Eastern District of Pennsylvania case Pennington v. King as offering support for a punitive damages claim based 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. It remains to be seen if this issue will develop any further in that case.


"Sorry to say," but it does not appear that legislative or judicial action will have any significant, positive impact on driver behavior in terms of texting or cell phone use. Around the same time the above action was being taken by the Pennsylvania Legislature and courts on the issue of drivers distracted by hand-held communication devices, the Highway Loss Data Institute coincidentally released a new study Jan. 29 on the topic.

According to a Jan. 30 article by Joelle Tesser of The Associated Press, the study finds that state laws banning the use of hand-held devices to make a call or send text-message while driving have not resulted in fewer crashes.

Yet, other studies by the Highway Loss Data Institute, which is affiliated with the insurance industry and the Insurance Institute for Highway Safety, make it clear that driving while texting or using a cell phone is dangerous. One separate study, issued a few years ago by a group of University of Utah psychologists in the June 29, 2006 issue of Human Factors: The Journal of the Human Factors and Ergonomics Society, has gone so far as to find that using a cell phone while driving may be as dangerous as driving under the influence of alcohol.

According to the AP article, one suggested explanation for the failure of the ban on hand-held devices to decrease the number of accidents in states that currently have a ban (California, New York, Connecticut, and the District of Columbia), is that the ban on the use of hand-held devices may have had the opposite effect of actually increasing such dangerous conduct by drivers.

With these findings that government intervention on the issue of distracted drivers and bans on hand-held devices may not have any effect, or may even have a detrimental effect, other commentators, like well-known Philadelphia lawyer-pundit Michael Smerconish, have cautioned against governmental intervention. The fear is the creation of a "slippery slope logic" for banning or punishing cell phone use may easily be extended to bans or punishment related to distractions caused by eating, using a GPS, scanning the radio, adjusting the heat, putting on makeup, or other commonplace attention-grabbers. Smerconish joins the call for alternative solutions to the problem.

As Smerconish pointed out in his Jan. 31 article in The Philadelphia Inquirer, there is a push by the U.S. Department of Transportation upon the wireless industry for the creation of technology whereby these devices are somehow disabled from use while a person is driving. Smerconish also favors the development of these possible technological advances towards the creation of a hands-free device that is somehow safe for use while driving.


"For what it's worth," there has been much recent discussion on this issue in Pennsylvania, but to date, no concrete changes. Whether any of these proposed changes would result in any change in driver behavior in any event remains questionable. For now, it's best to steer clear from these distracted drivers for your own safety.

Translation of text message:

Hi. How are you?
You are funny! Laugh out loud! Tears streaming down my cheeks!....Oh my God! Just got into an accident! Great! Un "freaking" believable! I am okay. Got to go. Bye for now. See you later. I will call you. Best Friends Forever. •

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 February 22, 2010 edition of the Pennsylvania Law Weekly, a statewide legal news publication.(c) 2010 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate.

PennDOT Continues to Enjoy the Protection of Pennsylvania Courts

Two recent cases, one out of the Commonwealth Court and one out of the Berks County Court of Common Pleas, confirm that the Pennsylvania Department of Transportation (PennDOT) continues to enjoy the protection of the court in liability claims arising out of motor vehicle accidents.

In Stein v. Pennsylvania Turnpike Commission, 2010 WL 521156 (Pa. Cmwlth. Feb. 16, 2010 Leavitt, J.), the Commonwealth Court held that the Commonwealth was immune from suit arising out of an accident during which a guiderail end treatment folded back and impaled the driver, causing fatal injuries. The Commonwealth Court affirmed the trial court's judgment in favor of the Pennsylvania Turnpike Commission.

Plaintiff argued that a claim based on the negligent design of the guardrail in question fit within the real estate exception to the Sovereign Immunity Act.

The Stein court rejected this argument noting that, in Dean v. Department of Transportation, 751 A.2d 1130 (Pa. 2000), the Pennsylvania Supreme Court stated that "[a]bsent legislative directive, however, we conclude that the real estate exception does not apply to the failure to install a guardrail."

The Stein court also noted that in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa. Cmwlth. 2008) the Commonwealth Court held that the commonwealth was immune "from suit regarding the design and maintenance of [a] guardrail." The Stein court held that nothing in this case or plaintiff's arguments convinced it to change that holding.

Accordingly, the Commonwealth Court affirmed the trial court entry of judgment in favor of the Pennsylvania Turnpike Commission.

The Stein v. Pennsylvania Turnpike Commission opinion can be viewed online at

Judgment was also entered in favor of the Commonwealth defendant in a recent Berks County case stemming from an accident involving a telephone pole.

In Mayer v. Verizon-Pennsylvania, PICS Case No. 10-1270 (C.P. Berks Jan.22, 2010 Lash, J.), the Berks County Court of Common Pleas held that the Pennsylvania Department of Transportation (PennDOT) enjoyed immunity from a suit raising a claim that its plan for highway utility pole placement was deficient.

In this case, the Plaintiff's decedent lost control on a snowy road of her car and struck a wooden utility pole. Plaintiff sued Verizon-Pennsylvania alleging that the utility pole was negligently placed and managed. Verizon joined PennDOT, alleging that PennDOT analyzed utility pole placement and advised utilities on whether the poles were placed in acceptable locations. Utilities were required to obtain PennDOT approval for pole placement. Thus, Verizon claimed any negligence must be attributed to PennDOT.

The Mayer court rejected Verizon's cross-claim and ruled that such claims did not fall within any of the exceptions to the Sovereign Immunity Act. The "highway exception," in particular, only applies to the breach of a duty to properly design, construct and maintain the paved portions of highways and the berm or shoulder, and does not include the remainder of the right-of-way within PennDOT's control.

The court in Mayer therefore found that the law excluded any claims against PennDOT based on theories that PennDOT allegedly owed duties pertaining to maintaining "clear zones" of safety for drivers on that right-of-way.

With these rulings, the Berks County Court of Common Pleas followed the general rule of no liability for PennDOT and granted summary judgment in favor of PennDOT.

A copy of the Mayer case can be secured for a small fee by calling the Pennsylvania Law Weekly's Instant Case Service (1-800-276-7427) and giving the above noted PICS Case Number.

Source: Case Digests in 3/8/10 Pennsylvania Law Weekly

Friday, March 5, 2010

Tort Talk Reaches Another Milestone - 250 Email Subscribers!

I now have 250 subscribers to Tort Talk!!

Thanks to everyone who has signed up and stayed on. I hope you continue to find this blog informative and maybe even interesting.

As always, if I can help out anyone in any way on any matters you may have, please do not hesitate to contact me at

Thanks again.

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.

Tuesday, March 2, 2010

Recent Cases of Note Highlighted on Pennsylvania Defense Institute Website

The following case was recently highlighted on the Pennsylvania Defense Institute website ( More details on these cases, as provided by Matt Keris, Esquire from the Moosic, PA office of Marshall, Dennehey, Warner, Colemen and Goggin, can be reviewed by visiting that website and clicking on "Case Summaries."

Bowman v. Sunoco, Inc., 986 A.2d 883 (Pa. Super. 2009) (Opinion by Stephens, J.)

The Plaintiff in Bowman raised a negligence claim for injuries she sustained while working as a private security guard on Sunoco property. As a term of her employment, she signed a third party release pertaining to any and all claims she may have against any customer of her employer.

In a case of first impression, the Superior Court ruled that there was no public policy violation in enforcing the release because the release did not affect the employee's workers' compensation rights. In other words, the court ruled that there was "nothing unconscionable about releasing claims against customers for injuries [sustained by the employee] that are already covered by workers' compensation law." Plaintiff's claims were therefore dismissed.

Bad Faith Claim Severed From Post-Koken Lawsuit in Bucks County

On February 16, 2010 Judge Clyde W. Waite of the Bucks County Court of Common Pleas sustained the Preliminary Objections of the UIM carrier requesting that the bad faith claim be severed from the third party claims and the UIM claim all filed under one caption in the case of Hartman v. Schofield and Progressive Insurance Company, 2009 - Civil - 11956 (Bucks Co. Feb. 16, 2010 Waite, J.). The Judge offered this decision in an Order without an Opinion.

Anyone desiring a copy of opinion may contact me at

I thank Robert Dapper, Esquire of the Pittsburgh law firm of Dapper, Baldasare, Benson, Behling & Kane for bringing this case to my attention.

Update on Luzerne County Judicial System Scandal

I offer the following link to an article updating the Luzerne County Judicial System Scandal:

The Times Leader:

Monday, March 1, 2010

Deposition of UIM Claims Rep in a Post-Koken Case

In a case that is already getting much play on the listserve for the Plaintiff's bar, trial court Judge William Amesbury recently issued a February 1, 2010 Order allowing for a limited deposition of a UIM claims representative in the post-Koken case of Paulewicz v. Fronczkewicz, Bryan, and State Farm, 10655-CIVIL-2009 (Luz. Co. Feb. 1, 2010, Amesbury, J.).

In Paulewicz, the Plaintiff brought negligence claims against the third party tortfeasor owner and driver, as well as an underinsured motorist claim against State Farm under one caption. There was no bad faith claim at issue as any such allegations were stipulated out of the case by the parties for the time being.

When Plaintiff's counsel noted a desire to depose the UIM claims representative, the UIM carrier filed a Motion for a Protective Order to preclude the same.

On February 1, 2010, Judge Amesbury issued an Order denying the Motion and allowing for the deposition of the claims rep to go forward. However, the Judge specifically noted that the Plaintiffs were "precluded from deposing" the UIM claims adjuster "as to his mental impressions, conclusions, or opinions respecting the value or merit of the claim, defenses to the claim, or respecting the strategy or tactics in defense of claims by State Farm...."

Anyone desiring a copy of this Order may contact me at

UPDATE (Posted October 21, 2013): In two separate Orders without Opinions issued on October 4, 2013, Luzerne County President Judge Thomas F. Burke, Jr., granted Motions for Protective Orders to preclude the deposition of a UIM claims rep in the cases of Garrett v. Griffin and Erie Ins. Exchange and Krzynefski v. Bish and State Farm.

To view the Tort Talk blog posts on these two more recent decisions out of Luzerne County, click this LINK.