Thursday, April 29, 2010

Ex-Luzerne County Common Pleas Judge Michael T. Conahan Pleads Guilty - Again

In what may be the beginning of the end of at least part of this travesty, Ex-Luzerne County Court of Common Pleas Judge Michael T. Conahan has again pled guilty to fraud charges in Federal Court on Thursday, April 29, 2010. His previous guilty plea agreement had been rejected by Federal Middle District Judge Edwin M. Kosik.

According to an April 29th article by Terrie Morgan-Besecker in the Times Leader, Conahan signed a plea agreement under which he will plead guilty to a single count of racketeering conspiracy. All other charges in the 48 count indictment previously filed against the former judge, which included bribery, extortion, mail fraud, and honest services fraud, will be dismissed.

According to an April 29th article in the Legal Intelligencer by Hank Grezlak and Leo Strupczewski, the racketeering conspiracy charge pled to carries a maximum penalty of 20 years in prison and a fine of up to $250,000. The article also noted that absent from the 21-page agreement is any minimum sentencing requirement or sentencing recommendation from the U.S. Attorney's Office. Instead, the agreement outlines that any sentence is to be "determined by the court."

The plea deal does call for Conahan to forgo any opposition to a forfeiture action and to surrender his law license.

Also absent from the written plea agreement is a cooperation clause. To date, it does not appear that Conahan will be testifying against fellow ex-Luzerne County Court of Common Pleas Judge Mark A. Ciavarella who has not pled guilty and who, through his attorney, maintains his innocence of the charges levied against him.

Click here to view the Conahan plea agreement:
http://media.timesleader.com/documents/Conahan_Plea_Agreement.pdf

Pennsylvania Supreme Court Finally Hands Down Tannebaum Decision

On April 28, 2010, the Pennsylvania Supreme Court finally handed down its long awaited decision in the case of Tannenbaum v. Nationwide, No. 100 MAP 2007 (Pa. 2010).

Tannenbaum involved a doctor who was severely injured in a motor vehicle accident. Following the accident, he secured social security disability benefits, along with disability benefits from a group plan offered by his former employer-hospital, and additional benefits under two personal disability policies.

The doctor sued the tortfeasor and settled. He then turned to Nationwide for UIM benefits. A dispute arose between the parties as to whether or not Nationwide was entitled to an offset in the amount of the disability benefits against the wage loss claims being presented by the injured party.

In an Opinion authored by Justice Saylor, the Court held that §1722 of Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL) precluded the plaintiff from pleading, proving and recovering as damages in an underinsured motorist claim any items of income loss otherwise paid by the disability insurer.

In this case of first impression, the Court confirmed that MVFRL was designed to eliminate the collateral source rule in auto cases, thus preventing the plaintiff from receiving a double recovery with respect to income loss.

As such, the Court overruled the Superior Court and held that Nationwide was indeed entitled to an offset in the amount of the disability benefits previously received by the injured party.


Justice Saylor's Opinion may be viewed at: http://www.courts.state.pa.us/OpPosting/Supreme/out/J-62-2008mo.pdf

A Dissent was filed by Justice Todd may be viewed at: http://www.courts.state.pa.us/OpPosting/Supreme/out/J-62-2008do.pdf

Wednesday, April 28, 2010

Superior Court Clarifies Waiver of Privilege in Mental Health/Emotional Distress Claims

I am happy to provide the link to the Superior Court’s April 26, 2010 Opinion in favor of the defense in the case of Gormley v. Edgar in which fellow Pennsylvania Defense Institute member Beth Carter, Esquire, of Bennett, Bricklin and Saltzburg, was defense counsel and in which I participated by way of an Amicus Brief drafted and filed on behalf of the Pennsylvania Defense Institute. The Opinion can be viewed at:

http://www.courts.state.pa.us/OpPosting/Superior/out/A01013_10.pdf


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, anguish and anxiety, the discovery of the pre-accident record should be allowed.

The Superior Court panel, consisting of Judge Gantman, Judge Bowes, and Senior Judge Kelly ruled that, where the Plaintiff made allegations in the Complaint that she sustained “anxiety” as a result of the accident, which is a recognized mental health disorder, the Plaintiff put her mental health status at issue. As such, the Superior Court found that the trial court properly ruled that the defense was entitled to discovery of medical records pertaining to the Plaintiff’s pre-accident mental health treatment records.

In the Opinion, the Superior Court did note that that general averments of shock, mental anguish and humiliation, which are routinely recoverable damages for non-economic loss in Pennsylvania, are not sufficient to place a Plaintiff’s mental condition at issue or cause a waiver any privilege against the production of mental health records.


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.

Tuesday, April 27, 2010

Tips on the Practice of Law From Ferris Bueller

I offer this article of mine from the April 27, 2010 Pennsylvania Law Weekly for your reading enjoyment:

DANKE SCHOEN, FERRIS BUELLER:
Enlightening thoughts for lawyers – from a teen epic hero


by

Daniel E. Cummins, Esquire

The recent telecast of the Academy Awards Ceremony, with its tribute to the late movie director John Hughes, brought back to mind many of the teen epic movies of the 1980s along with their famous characters. Perhaps none of these characters were as unforgettable as Ferris Bueller, played perfectly by Matthew Broderick, in Ferris Bueller’s Day Off, released in 1986.

For those who are not of the 80s teen generation or who are otherwise unfamiliar, this film followed a day in the life of high school senior Ferris Bueller, who decided to skip school and, instead, spend a beautiful spring day in downtown Chicago. Accompanied by his girlfriend and his best friend Cameron Frye, Ferris creatively avoids his school’s Dean of Students, his resentful sister, and his parents throughout the day. During the film, Ferris Bueller occasionally turns to the camera and explains to the audience his techniques and thoughts.

Some of those humorously enlightening thoughts of Ferris Bueller, as set forth below, could serve to assist in easing a few of the burdens of the law profession.

How could I possibly be expected to handle school on a day like this?

In the opening scenes of Ferris Bueller’s Day Off, Ferris awakes to clear blue skies with wispy clouds and bright sunshine—it’s a beautiful 70 degree spring day in Chicago. Ferris asks the above question and gets to work on his plan to get out of having to go to school.

How often have you heard another lawyer exclaim what a beautiful day it is outside and lament that he or she is “stuck in here” doing work?

While it may not always be feasible to “pull a Ferris” and take advantage of all of a beautiful sunshiny day, perhaps lunch could be had at a nice outside spot followed by a leisurely stroll around the awaking greenery of spring to get some fresh air and clear your head for an hour or so.

On those rare occasions when an sudden, splendid day coincides with a lull in the calendar, see if you can take the day as a way to rejuvenate on a “mental health” day, spend time with family, or (keeping the boss happy) take a client out to the golf course.

They bought it. Incredible. One of the worst performances of my career, and they never doubted it for a second.

This is Ferris’ comment after he succeeds in persuading his parents that he is too ill that morning to be sent off to school. The lesson of course is not that fakery is good—rather, this comment shows that we can sometimes surprise ourselves with how persuasive we can be at times.

In trial, the key to being persuasive is to believe in one’s own objective in the trial and the theory of the case being presented to reach that objective. If the attorney does not entirely believe in the case presented the jury’s radar will certainly pick up on that lack of confidence and may reject it themselves.

An excellent tool to assist the attorney in persuasively presenting a theory of the case is the use of demonstrative evidence and, in this day and age, the use of PowerPoint presentations. A lawyer presenting his case at trial via repeated use of computer powered graphics versus a “talking head” attorney without exhibits is sure to have the upper hand in terms of persuasiveness with a jury.

As the fictional attorney Billy Flynn explains his trial strategy in the song “Razzle Dazzle” in the musical Chicago: “Give ‘em the old razzle dazzle…/Give ‘em an act with lots of flash in it / Then the reaction will be passionate….”

So razzle dazzle them at trial and your client may benefit even if he or she does not have the better evidence to present.

Do you realize that if we played by the rules right now we'd be in gym?

As he sets off and goes through with a day of playing hooky with his girlfriend and his best friend Cameron, Ferris becomes increasingly frustrated with how nervous and uptight his friend Cameron is about getting caught and utters this comment.

Attorneys are born to follow rules and the thought of not following the rules is repugnant. However, there may be times when taking calculated risks and throwing caution to wind may be in the best interest of a client while still playing within the rules and the law applicable to the case presented.

Taking the time to try to think outside of the box or do the unexpected could be the difference. For Ferris, this thinking led to the vast difference of him being at a Chicago Cubs day game catching a foul ball as opposed to being in gym class being forced to climb up a rope or something. In an attorney’s case, thinking outside of the box and taking risks on dispositive motions or at trial could be the substantial difference between winning a case or losing the case.

Not that I condone fascism, or any -ism for that matter. -Ism's in my opinion are not good. A person should not believe in an -ism, he should believe in himself. I quote John Lennon, "I don't believe in Beatles, I just believe in me." Good point there.

Believe in yourself and what you do and no one can doubt you or your motives. Enough said.


Cameron: Ferris, my father loves this car more than life itself.
Ferris: A man with priorities so far out of whack doesn’t deserve such a fine automobile.

This conversation takes place in the garage in Cameron’s parent’s house as the two teenagers look at Cameron’s father’s mint condition shiny red antique 1961 Ferrari GT California. With this comment young Ferris is wise beyond his years.

Sometimes the 24-7 relentlessness of the practice of law makes it is easy to lose sight of what’s important both in your practice and outside of your practice. Stopping on occasion to re-evaluate one’s status in life and re-prioritizing never hurts.

Maybe it will even help your outlook on life to take a moment to actually write down what is important to YOU in the grand scheme of your life and in terms of your goals both in and out of work. Then, don’t just push that paper aside, but make it a priority to put those thoughts into action--today, not tomorrow.

Life moves pretty fast. You don't stop and look around once in a while, you could miss it.

Ferris looks right into the camera and hits you with this comment. So simply put and so true.

The law is really only one piece of our short lives. A balance between work and life outside of work should not only be sought but encouraged. Devoting all of one’s energies to the practice of law to the detriment of one’s family, social, or recreational life could lead to a burn out, not to mention great regret.

There’s no slowing down life and it seems the older we get the quicker it goes. So take moments to stop. Just stop. Look around. See what you see in your life and seize and enjoy the moments of your life.

Channeling a good portion of one’s time and energies instead to those important aspects of life outside of work may ultimately have the benefit of making one a happier person and therefore a more productive and less stressed lawyer.

Conclusion

I end this article as Ferris Bueller ended his movie as the last credits rolled up the screen: "You're still here? It's over! Go home! Go!"

Monday, April 26, 2010

Excellent Legal Writing Tips

Here's a link to a post on a blog called "The Lawyerist" which provides an itemized list of excellent tips to help improve legal writing as provided by noted expert Bryan Garner: http://www.linkedin.com/news?viewArticle=&articleID=124108622&gid=63909&articleURL=http%3A%2F%2Flawyerist.com%2F10-legal-writing-tips-from-bryan-garner%2F&urlhash=1NYD&trk=news_discuss

I also highly recommend Garner's book with Justice Scalia called Making Your Case: The Art of Persuading Judges. This book not only provides writing tips but also oral argument tips.

Thursday, April 22, 2010

Appointment of Judge Thomas I. Vanaskie to Third Circuit Court of Appeals Confirmed

Yesterday, April 21, 2010, the United States Senate confirmed President Obama's appointment of Pennsylvania Middle District Federal Court Judge Thomas I. Vanaskie, 56, to the United States Third Circuit Court of Appeals. Judge Vanaskie is a graduate of Lycoming College and the Dickinson School of Law. After many years in private practice, he has served as a Judge in the Middle District over the past 16 years.

Judge Vanaskie's confirmation gives the Third Circuit Court of Appeals a full slate of 14 judges, but leaves the Federal Courthouse in Scranton with no full-time judge. The local federal court judges, Judge William J. Nealon, Judge Richard P. Conaboy, Judge Edwin M. Kosik, Judge James M. Munley, and Judge A. Richard Caputo, have all reached the mandatory retirement age of 70 and are supposed to work as part-time senior judges.

According to an April 22, 2010 article in Scranton's The Times-Tribune, Senator Bob Casey has advised that a panel appointed to recommend candidates for the Federal Bench in the Middle District have finished their assignment. Apparently, Senator Bob Casey and Senator Arlen Specter are now in the process of going through the panel's recommendations to determine which names to suggest to President Obama in the nomination process.

Sources:

"Vanaskie Confirmed," by Borys Krawczeniuk in the April 22, 2010 The Times-Tribune.
(http://thetimes-tribune.com/news/shamokin-native-vanaskie-ascends-to-federal-appeals-court-bench-1.739558);

"Confirmation of Vanaskie Gives 3d Circuit Full Complement," by Shannon P. Duffy in the April 22, 2010 Legal Intelligencer. (http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202448456886&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20AM%20Legal%20Alert&cn=TLI_AM_LegalAlert_20100422&kw=Confirmation%20of%20Vanaskie%20Gives%203rd%20Circuit%20Full%20Complement&hbxlogin=1).

Wednesday, April 21, 2010

Updates in the Medical Malpractice Arena

Lackawanna County Jury Verdict

According to an article by staff writer Joe McDonald in the April 21, 2010 Scranton Times, on Monday, April 19, 2010, a Lackawanna County jury returned a verdict in the amount of $1.2 million dollars in favor of a plaintiff in a medical malpractice case against the Tyler Memorial Hospital physicians Daniel Costner and Jeffrey Lubin. Plaintiffs alleged that the Defendants were negligent in the death of Michael Scarpa, a 55-year-old retired Long Island railroad worker.

Mr. Scarpa died two days after he was sent home from the hospital emergency room, where he had complained of chest pains and vomiting for three days. He was allegedly advised to take cough medicine, rest and see his family doctor in two days. A later autopsy revealed that the Plaintiff had an ulcerated esophagus. The cause of death was noted to be sepsis, or blood poisoning, caused by a perforated esophagus that allowed food to enter into his pleural cavity.

The jury found that the hospital was 40 percent responsible, Dr. Lubin was 30 percent responsible and Dr. Coster was ruled to have been 20 percent responsible. The jury also found that the Plaintiff's decedent was 10 percent responsible.

The Plaintiffs were represented by Attorney Matthew A. Cartwright and Robert W. Munley, III, of the Scranton law firm of Munley, Munley & Cartwright. The presiding judge was Judge Carmen Minora.

It was indicated in the article that delay damages may increase the verdict to closer to $1.9 million dollars.

To review the Scranton Times article and more details on the case, click here: http://thetimes-tribune.com/news/jury-awards-widow-1-2-million-in-scranton-malpractice-trial-1.738278.


Recent Pennsylvania Supreme Court Decision

Back on March 25, 2010, the Pennsylvania Supreme Court issued a decision, written by Justice Seamus P. McCaffery, in the case of Vicari v. Spiegel, 989 A.2d 1277 (Pa. 2010) in which it held that, pursuant to Section 512 of the Medical Care Availability and Reduction of Error Act, 40 Pa.C.S. 1303.512, an expert may be permitted to testify at trial in a medical malpractice case even though the testifying expert is board certified in a different field from the defendant doctor and even though the expert practices in a subspecialty different from the specialty of the defendant doctor.

The Court noted that the relatedness of one field of medicine to another for purposes of expert testimony must be assessed on a case-by-case basis with respect to the specific care at issue.

In this case, the Plaintiff's decedent died from tongue cancer. Among the defendants sued was a otolaryngologist, who managed the decedent's care, as well as a radiation oncologist. At issue was whether the Plaintiff could proceed to the jury on the testimony of an expert medical oncologist. The Supreme Court ruled that the Plaintiff's expert testimony was sufficient even though the Plaintiff's expert had a different board certification and was not of the same specialty as the defendant doctors.

A copy of this majority opinion can be reviewed by clicking this link: http://www.courts.state.pa.us/OpPosting/Supreme/out/J-94AB-2009mo.pdf.

Justice Castille's Concurring Opinion (joined by Justice Baer): http://www.courts.state.pa.us/OpPosting/Supreme/out/J-94AB-2009co1.pdf.

Justice Saylor's Concurring Opinion (joined by Justice Eakin): http://www.courts.state.pa.us/OpPosting/Supreme/out/J-94AB-2009co2.pdf.

Tuesday, April 20, 2010

New Cover Sheet For Civil Actions

According to the April 19, 2010 edition of the Pennsylvania Bar News, a new cover sheet for civil action Complaints is being introduced and required by the Pennsylvania Supreme Court to assist in the tracking of cases filed in the courts of common pleas.

On February 25, 2010, the Pennsylvania Supreme Court issued an order revising the Rules of Civil Procedure to require the filing of the new civil cover sheets beginning on May 25, 2010. Cases covered by this new rule include property disputes, property damage cases, medical malpractice claims, and zoning and tax assessment appeals, along with other types of cases.

The Supreme Court Order can be viewed at: http://www.pacourts.us/OpPosting/Supreme/out/521civ.attach.pdf.

The form for the new cover sheet can be found at
http://www.pacourts.us/NR/rdonlyres/F0D81C59-2E56-4BB2-9A1F-CD0D48E1D48A/0/CoverSheetCPCivilFilings_100226.pdf.

Update on Cell Phone Bans

Attorney Christopher M. Reeser of the Harrisburg office of Marshall, Dennehey, Warner, Coleman & Goggin advised that Harrisburg is one of the other cities which passed a law banning cell phone use while driving.

However, it was reported that a local district magistrate judge ruled the law unconstitutional in the case before him based upon lack of notice to motorists entering the city. It does not appear that that ruling had any ongoing effect on the continuing validity of the ban in Harrisburg. Rather, the impact of that decision appeared to be limited only to that one case.

For more info, click on this link to the news article on the topic:
http://www.pennlive.com/midstate/index.ssf/2010/04/man_acquitted_in_first_challen.html

I thank Attorney Reeser for sending this info my way on Harrisburg.


Also Attorney Richard B. "Bruce" Wickersham, Jr. of the Philadelphia office of Post & Schell advised that Philadelphia is another Pennsylvania city that has banned the use of cell phones while driving. See : http://www.nbcphiladelphia.com/news/local-beat/Nutter-Signing-Philadelphia-Cell-Phone-Ban-.html.

I thank Attorney Wickersham for his assist in this regard.

Continuing to Keep You Out of Trouble....

I saw an article in the April 18, 2010 Scranton Sunday Times by staff writer Matthew Harris advising that a ban on hand-held cell phone use went into effect in the city of Wilkes-Barre, Pennsylvania, effective last Sunday the 18th.

The article notes that Wilkes-Barre is the fourth Pennsylvania city to pass such a law. I know Allentown is another such city, but I am not sure of the others.

Note that violating this law is considered a primary offense which means a cop can pull you over for this offense alone. Eventually there will be $75 fines issued but there is apparently a grace period under the law that runs from April 18th through June 30th during which violators will only be given a warning.

Hands-free devices are still allowed to be used but you could still be pulled over for handling the cell phone while driving, such as when you are dialing a number, etc. The recommendation is that you pull over and stop whenever a handling of the cell phone is required.

Sunday, April 18, 2010

Tort Talk Not Only Informs, It Keeps You Out of Trouble

Tort Talk not only informs, it keeps you out of trouble.

REMEMBER: This Wednesday, April 21st, is Administrative Professionals ("Secretary's") Day. Showing a little appreciation will probably be greatly appreciated by those who assist us in our day-to-day activities at work.

Friday, April 16, 2010

The Troubles Continue in Luzerne County

According to an April 16, 2010 Times Leader article, Luzerne County Clerk of Courts, Robert Reilly, was charged by the U.S. Attorney's office with soliciting and receiving bribes, and gratuities, in his official capacity.

According to a one page criminal complaint, Luzerne County received federal assistance in excess of $10,000 during each calendar year beginning 2005 until 2009. In or about 2007, Reilly allegedly did "corruptly solicit, demand, accept and agree to accept a thing of value, that is money, from a person, intending to be influenced and rewarded in connection with a transaction and series of transactions involving $5,000 or more."

More specifically, Reilly was charged with demanding 10 percent kickbacks over five to seven times, totalling $1500, from a contractor in exchange for the contractor securing work in the Courthouse.

For more information, see the Times Leader article at http://www.timesleader.com/news/Bribery-charge-filed-against-Clerk-of-Courts-Robert-Reilly-.html

Wednesday, April 14, 2010

Recent Decisions of Note out of Lackawanna County

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently issued two notable opinions.


Florimonte v. Scranton Laminated Label, Inc., No. 08-CV-1569 (Lacka. Co. March 15, 2010 Nealon, J.)


In the case of Florimonte v. Scranton Laminated Label, Inc., et al., Judge Nealon presided over a non-jury civil trial pertaining to claims of gender discrimination, retaliatory discharge, and sexual harassment/hostile working environment in violation of the federal Civil Rights Act and the Pennsylvania Human Relations Act.

The Plaintiff was an "at-will" employee of Scranton Label. The evidence revealed employees at the company, including the Plaintiff used profanity of a non-sexual nature at work when customers were not around. The evidence also showed that at least two male employees generated as much as 9 or 10 times more business on their industrial accounts compared to the smaller boutique business accounts that the Plaintiff chose to devote her efforts to.

Also noted in the Opinion were allegations by the Plaintiff wrote a letter to her employer containing complaints about co-workers and asserting that she believed that representatives of Scranton Label had installed surveillance or recording devices in her company vehicle and at her desk with the assistance of the FBI. The employees at Scranton Label alleged to be involved in this all denied the allegations as absurd. To be sure, the Defendant had a State Trooper, with the Plaintiff present, sweep the car for listening devices and none were found. An independent inspection of the vehicle secured by the Plaintiff also failed to unveil any listening devices in the car. The Plaintiff declined the employer's offer to have her desk and office check out as well.

Shortly thereafter, the employer issued a letter to the Plaintiff terminating her from employment "due to the bizarre behavior you have exhibited over the past week toward my employees and me" and "expressed hope [that] you seek the medical attention that you desparately need."

The Opinion noted the new employees who followed in the Plaintiff's position at Scranton Label were able to generate much more money in sales than the Plaintiff had. The Court also rejected the Plaintiffs' claims with respect to the listening devices, which was admittedly the basis of her claims of harassment, as incredible.

In his Opinion, Judge Nealon provided a thorough analysis of the current state of the law on the burden of proof on claims of gender discrimination, sexual harassment/hostile work environment, and retaliatory discharge.

After analyzing the law and reviewing all of the facts presented, Judge Nealon concluded his Opinion with the entry of a March 15, 2010 non-jury verdict in favor of Defendants, Scranton Laminated Label, Inc., et al.




Scranton Times, LP v. Entercom Wilkes Barre Scranton, LLC and John Gasper, No. 10-CV-2439 (Lacka. Co. April 10, 2010 Nealon, J.)


In Scranton Times LP v. Entercom Wilkes Barre Scranton, et al., Judge Nealon addressed the motion for a preliminary injunction filed by the Scranton Times seeking to enjoin a radio personality and his current employer from utilizing the ex-employee's professional name and any fictional characters, comedic material or artistic product that the radio personality developed and published during his former employment under the Scranton Times.

The radio personality involved is John Gasper, whose "stage name" was John Webster. For the past 25 years Gasper was part of the Daniels & Webster due on the Rock 107 morning show, a local radio fixture in Northeastern Pennsylvania. Recently, Mr. Gasper announced his resignation from his position at Rock 107 and his intention to accept employment with another radio station. In this matter, the former employer sought to enjoin Gasper from using the name "John Webster" and any of the the comedic material in his new position.

After providing an analysis of the standard of review for the issuance of a preliminary injunction as well as the law on the standard of review on preliminary injunctions, construction of employment contracts, and state and federal trademark claims, the Court granted in part and denied part the motion for the preliminary injunction.

More specifically, in his April 10, 2010 Order attached to the Opinion, Judge Nealon denied the motion seeking to enjoin Mr. Gasper from using the name "John Webster" in the future, but granted the motion to enjoin the use of the comedic materials and characters developed during the previous employment.




Anyone desiring a copy of these Opinions may contact me at dancummins@comcast.net.

Tuesday, April 13, 2010

Judge William J. Nealon Profiled in Vanity Fair

Here's a link to an article in Vanity Fair magazine, or at least their website, praising Pennsylvania Middle District Federal Court Judge William J. Nealon and comparing his judicial qualities and temperament to that of Justice John Paul Stevens, who recently announced his intention to retire from the United States Supreme Court---very impressive: http://www.vanityfair.com/online/daily/2010/04/an-older-wiser-generation-of-judges.html.

Pennsylvania Supreme Court Hears Argument In Two Important UIM Cases

In two separate matters — one on April 13th and one on April 14th — the Pennsylvania Supreme Court will hear arguments regarding two important issues in underinsured motorist (UIM) cases: (1) whether those eligible for workers' compensation benefits may also collect underinsured motorist benefits and (2) whether underinsured motorist coverage on a police officer's personal vehicle can be extended to a police vehicle when the cop's law enforcement agency does not provide such insurance.

In Heller v. Pennsylvania League of Cities and Municipalities, a 2-1 Superior Court panel previously ruled that a person receiving workers' compensation benefits may be subject to an insurance exclusion and thereby from also recovering underinsured motorist benefits.

Superior Court Judge James Gardner Colins wrote for majority in Heller and held that the legal precedent relied upon by the injured party did not squarely address the issue at hand. The Superior Court further stated that the Pennsylvania Supreme Court has never considered whether its previous ruling on the issue still applies, given amendments have been made to the Motor Vehicle Financial Responsibility Law.

Now, with the Heller case, the Pennsylvania Supreme Court is presented with another opportunity to clarify the workers' compensation issue.

In the separate matter of Williams v. GEICO, the injured party police officer was injured in a car accident on the job and presented a UIM claim to his own personal insurance carrier, GEICO because the Pennsylvania State Police did not carry UM/UIM coverage on its vehicles. GEICO applied the "regular use" exclusion under its policy to deny coverage. In this case, the injured party is challenging that exclusion and GEICO's denial.

The decision by the Supreme Court could have a major impact on all first responders, from police officers, EMTs, and firefighters, who may all be driving out there without any UIM coverage under the current status of the law.



Source: "Beer Sales, UIM Issues Highlight Arguments Session in Pittsburgh" by Leo Strupczewski in the April 13, 2010 edition of The Legal Intelligencer.

Monday, April 12, 2010

February 2010 Bar Exam Results Announced

The Pennsylvania Board of Law Examiners announced on April 9th that, of the 607 people who took the Pennsylvania Bar Exam in February of 2010, only 342 passed. That is a 56% pass rate.

Sunday, April 11, 2010

Justice Stevens to Retire From United States Supreme Court

By now you have surely heard that Justice John Paul Stevens, appointed to the Supreme Court in 1975 by President Gerald Ford, sent a letter to the White House on Friday morning announcing his intention to retire from the United States Supreme Court when it concludes its business over this upcoming summer. To read Justice Stevens' letter to the President, click this link (a short note, but still pretty neat to see): http://graphics8.nytimes.com/packages/pdf/us/20100409-JohnPaulStevens-Letter.pdf.

President Obama now has a rare opportunity to make back-to-back nominations to the Court. Whereas during the Reagan and Bush years, there were appointments of Justices with a decidedly conservative bent, it is anticipated by the commentators that President Obama will continue his efforts to create a Bench where the pendulum shifts to left of center.

In an oft-repeated quote issued during his campaign for the Presidency pertaining to the selection of judges, Obama stated, "We need somebody who's got the heart, the empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I am going to be selecting my judges."

After Justice Stevens' announcement of his planned retirement, President Obama has been quoted as saying he would look for a candidate who possessed what he described as qualities similar to that of Justice Stevens: “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people.”

According to the news articles, the President may be considering up to ten candidates, but that three have emerged as front-runners: Merrick B. Garland, 58, a federal appeals court judge in Washington, D.C., Elena Kagan, 49, the solicitor general and former Harvard Dean, and Diane P. Wood, 59, a federal appeals judge and former fellow law professor of President Obama at the University of Chicago.

Source: Sheryl Gay Stolberg and Gary Savage. "Stevens' Retirement is Political Test for Obama." New York Times article (4/10/10).

Friday, April 9, 2010

Professional Announcement - Writing for the Pennsylvania Trial Advocacy Handbook

I have been retained by the George T. Bisel Company, Inc., a publisher of Pennsylvania legal treatises, to be the new writer of the annual supplement for the Pennsylvania Trial Advocacy Handbook.

This book was originally written by Milford J. Meyer, J.D., LL.D. (dec'd) and the supplement was written for the past many years by Arthur S. Zanan, M.L.S., J.D., out of Montgomery County. Attorney Zanan has passed the torch to me in terms of the Pennsylvania Trial Advocacy Handbook, but plans to keep up his efforts with respect to supplementing the other Pennsylvania legal treatises he writes for every year.

I thank Attorney Zanan for sending this opportunity my way and I thank Anthony J. DiGoia, Esquire, the Editor in Chief at Bisel for allowing me to tackle this new venture.

GOLFERS NEEDED FOR A GOOD CAUSE - SATURDAY, MAY 8TH GOLF TOURNAMENT

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 (ex. $100 hole sponsorships available) or wishing to golf in the Tournament may contact me at dancummins@comcast.net for a Registration Form.

For full disclosure purposes, I note that my son is a second grade student at the school.

Thursday, April 8, 2010

Ex-Superior Court Judge's Fraud Conviction Upheld

According to an April 8, 2010 Associated Press release, the United States Third Circuit Court of Appeals has upheld the insurance fraud conviction and 46-month prison sentence of former Pennsylvania Superior Court Judge, Michael Joyce.

The three-judge panel from the Third Circuit Court of Appeals found that a jury could reasonably infer that the defendant meant to defraud Erie Insurance on the personal injury claims presented because of the defendant's "numerous exaggerations and misstatements" about neck and back injuries he allegedly suffered in an August 2001 automobile accident.

According to the article, the former judge was convicted of mail fraud and money laundering in 2008 and sentenced in March of 2009 for collecting $440,000 in an allegedly low-speed accident during which his vehicle was rear-ended. The 61-year-old former judge has been serving his sentence during the appeal.

Wednesday, April 7, 2010

Lackawanna County Judge Terrence Nealon Addresses Declaratory Judgment Issues

In his recent March 29, 2010 Opinion and Order issued in the case of C.S. Individually, and as parent and Natural Guardian of M.S., a minor, et al. v. Colony Insurance Company, et al, No. 05 CV 569 (Consolidated) (Lacka. Co. 2010 Nealon, J.), Lackawanna County Court of Common Pleas Judge Terrence Nealon succinctly set forth the law pertaining to declaratory judgment actions and the rationale supporting the refusal of courts to give advisory opinions in such cases.

In M.L. v. Colony Insurance Company, four juveniles filed tort actions naming the Juvenile Rehabilitation Services, Inc. ("JRS") as a defendant. It was alleged in the underlying action that the juveniles sustained various personal injuries as result of being placed into the foster care of a man who was a transvestite who impersonated himself as a female who was purportedly married to another man at the time of the foster care placements. While the juveniles were in the individual defendant's foster care, they were sexually abused in a graphic manner. The foster parent eventually pleaded guilty to a number of sexual offenses and was sent to prison.

The juveniles sued JRS under the primary allegations that the defendant failed to conduct proper background checks and, after placement, failed to conduct periodic reviews and inspections to ensure the safety of the minors.

JRS was covered by a primary liability policy as well as an excess liability policy. Under the primary liability policy issued by Colony Insurance Company, there was medical incident coverage with $1 million per claim/$3 million per incident limits and a separate sexual abuse coverage with a $100,000 per claim/$100,000 per incident limit.

The juvenile Plaintiffs filed a declaratory judgment action seeking an adjudication that the facts of the case fell under the higher liability coverage. In this case before Judge Nealon, the juvenile Plaintiffs had filed a certificate of trial readiness in the declaratory judgment action while the underlying third party litigation was still pending and had not yet been tried.

The Defendant primary liability carrier motioned to Judge Nealon to strike the certificate of readiness, arguing that the scope of the duty to indemnify under the policy could not be properly determined until the underlying tort actions had been decided by a jury. More particularly, the carrier argued that the declaratory judgment action on the issue of the applicable coverage could not be decided until a jury in the underlying third party matter issued a verdict on whether the juveniles' injuries were caused solely by the sexual abuse or by the other alleged actions of JRS.

After thoroughly reviewing the law of declaratory judgments and the prohibition against advisory opinions in such cases, Judge Nealon ruled that any declaration by the court on the carrier's duty to indemnify would be premature and merely advisory prior to the resolution of the tort lawsuit against JRS. As such, Judge Nealon granted the carrier's motion to strike the juvenile Plaintiffs trial certification of the declaratory judgment actions without prejudice to the Plaintiffs' right to re-certify the case after the disposition of the underlying lawsuit.

Anyone desiring a copy of Judge Nealon's Opinion and Order may contact me at dancummins@comcast.net.

Postponement of Medicare Secondary Payer Mandatory Reporting Until Jan. 1, 2011.

According to an April 5, 2010 online article by an Attorney Kathy Donovan for Claims magazine, the Centers for Medicare and Medicaid Services (CMS) recently announced that the planned April 1, 2010 implementation of the Medicare Secondary Payer Mandatory Reporting (MSP) has been pushed back to January 1, 2011.

It was indicated that this postponement of the pending federal reporting requirement enables insurance companies the opportunity to learn more about the process and prepare for the implementation of the statutory changes.

According to the article, the delay only affects non-group health plan insurers (NGHP), which are defined in the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA) as being an “applicable plan” for liability insurance (including self-insurance), no-fault insurance, and workers’ compensation insurance. Included in this group are liability carriers who are dealing with an injured party who may be a Medicare beneficiary

The article further notes that, the implementation of the statutory requirements was delayed, in part, address the insurance industry's need for additional guidance on the applicably requirements and the procedures.

In addition to reviewing some revisions that are anticipated in a Congressional Bill entitled the Medicare Secondary Payer Enhancement Act of 2010, Attorney Donovan notes in her article that up-to-date information about the clarification of existing requirements and guidelines and available assistance can be accessed on the CMS site.

Attorney Donovan's complete article can be viewed by clicking on this link: http://www.claimsmag.com/Exclusives/2010/4/Pages/Medicare-Claim-Reporting-Delay-Provides-Opportunities-for-Casualty-Insurers.aspx.

SAVE THE DATE - FRIDAY, MAY 28th - NEPTLA FAMILY NIGHT AT THE BALL GAME

Family Night at the Ball Game

Presented by
Northeast Pennsylvania Trial Lawyers Association

Friday May 28, 2010
Scranton/Wilkes-Barre Yankees
v.
Syracuse Chiefs


Luxury Box
Buffet Dinner beginning at 6:00 PM
Beer and soft drinks provided


Game starts at 7:05 PM
Post-Game Fireworks

Adults -- $20.00
Children under 12 -- $12.00
Children under six are free!!

For ticket information or questions please contact:


Dan Cummins
Foley, Cognetti, Comerford, Cimini, & Cummins
507 Linden Street, Suite 700
Scranton, PA 18503
(570) 346-0745
dancummins@comcast.net

Please make checks payable to “Northeastern Pennsylvania
Trial Lawyers Association” and send to Dan Cummins

Recent Settlement in Northeastern Pennsylvania Trucking Accident Case

The following settlement in a Northeastern Pennsylvania trucking accident case was recently reported in the Legal Intelligencer and the Pennsylvania Law Weekly.

Case name:
HELEN and ANTHONY GROSEK, JR. v. PANTHER II TRANSPORTATION, INC., PANTHER EXPEDITED SERVICES, INC. and ANTHONY L. SANDERS a/k/a TONY L. SANDERS

Court name & docket number:
United States District Court for the Middle District of Pennsylvania
No. 3:CV 1592

Judge:
James Munley

Attorneys:

For Plaintiffs: Richard A. Russo, Esquire and Andrew Bigda, Esquire of Rosenn, Jenkins & Greenwald in (Wilkes-Barre)

For Defendants: Thomas Kuzmick and Valerie Kellner of Rawle & Henderson (Philadelphia)

Insurance carrier: Zurich Insurance

Facts:

In May of 2007, a tractor trailer allegedly failed to stop for a red traffic light at a four way intersection, allegedly resulting in a collision with a car driven by a retired 83 year old woman. The primary injuries alleged were a traumatic brain injury and numerous broken bones.

The truck driver denied running a red light, and claimed that his traffic light changed to yellow as he was about to enter the intersection. Plaintiffs alleged that the truck driver was reckless and negligent for failing to stop at a red traffic signal, and the trucking company was vicariously liable for the driver's conduct.

In addition to a claim for compensatory damages, the suit included a claim against the trucking company for vicarious punitive damages due to the driver’s alleged reckless indifference to the safety of others as a result of his never having braked for an obvious red light.

Plaintiffs’ Experts:
Dr. W. Fred Hess (orthopedic surgeon), Danville, PA
Dr. Jonathan P. Hosey (neurologist), Danville, PA
Mona G. Yudkoff (life care planner), Bala Cynwyd, PA
Christina Kelly (trucking expert), Indianapolis, IN
Lance E. Robson (professional engineer), Eagle’s Mere, PA
Dr. Jonathan A. Cunitz (financial expert for punitive damages) Westport, CT

Defendants’ Experts:Dr. Thomas DiBenedetto (orthopedic surgeon), Allentown, PA
Dr. Richard Bennett (neurologist), Philadelphia, PA
Hugh Galbreath: (trucking expert), Morristown, IN
Suzanne Salmon (life care planner), Philadelphia, PA

Result: The case settled at trial for $3 million after opening statements were made to the jury.

Monday, April 5, 2010

A Weekend in Our Nation's Capital

I am going to digress from the ordinary topics of Tort Talk to tell you a little about a great Easter Weekend trip I took to Washington, D.C. with my family. The trip reminded me of the important place attorneys have in our Nation's history and rejuvenated in me a sense that we are indeed a part of a noble profession that is an integral part of shaping society as we know it.

The weather was incredible and the Cherry Blossoms were blooming. Although we were told that the city was flooded with hundreds of thousands of tourists, the sites are so spread out that it didn't really seem overcrowded.

We enjoyed the usual but awe-inspiring sites such as the Capitol Building, the Washington Monument, and the Lincoln Memorial. Seeing the Vietnam Veterans Memorial and Arlington National Cemetery gave us a chance to explain to our boys the importance of what others had previously done for us so that we can enjoy the freedoms that we do on a daily basis. A tour guide explained to us that the Arlington National Cemetery may be nearing capacity in a few years, particularly in light of the ongoing Iraq and Afghanistan conflicts, which was sad to hear--made everything seem more real.

On another day, we went to see the Supreme Court Building, pictured below. Spent time explaining to my boys that this was the home to the highest Court in the land. They lost interest when I went into a discussion of judicial activism versus strict constructionism.






I had a sense or a feeling of the awesome power of things in Washington when we saw Marine One, the President's helicopter, fly overhead towards the White House. Don't know if the President was on it but it was cool to see.

We also got to see original documents in the National Archives that started this legal business of ours, including the Declaration of Independence, the United States Constitution, and the Bill of Rights. Simply incredible to see the real documents from which all other laws emanate.

I had a somewhat difficult but enjoyable time trying to explain the significance of the documents to my boys and their ongoing impact on society over 200 years since they were drafted (primarily by lawyers). Again, the trip and explaining things to my kids was a great reminder of the importance of the law and the nobility of our profession.

My family and I topped off the weekend by participating in the Annual Easter Egg Roll on Easter Monday on the White House grounds! Prior to our trip, we put in for the lottery to get tickets for this event. We read that over 270,000 applications were submitted for tickets from all around the country. My family and I were just a few of the 30,000 people who were awarded tickets. Unbelievable.

We were let onto the White House grounds, under heavy security, in five time-separated groups of about 6,000 people at a time. We were allowed two hours to mill about the various activities offered. The grounds of the White House are so sprawling that it again did not seem to be overcrowded.

We participated in the Easter Egg Roll which has been going on every Easter since the late 1800s and so we were a part of history. We also visited various arts and crafts exhibits and enjoyed the entertainment provided. There were some teeny-bopper acts that I was not familiar with, the movie star Reese Witherspoon was doing storybook time, and we also saw the cast of the TV show "Glee" put on a half hour show.

We were not fortunate to see the President or the First Lady during our time on the grounds. But we did get to wander about on the lawn up to about only 20-30 yards from the main building of the White House and we were only about 150 yards away from where the Oval Office was situated. I couldn't believe it--truly a memory my family and I will remember forever.

How many people can say they wandered the White House grounds this close to the White House itself?











Thursday, April 1, 2010

Update Regarding Reporting of Recent Defense Verdict in Columbia County Medical Malpractice Case

Here is an update in regard to article about defense verdict in case of Kowalski vs Bloomsburg Hospital and Dr. Meloy out of Columbia County. It was learned from public sources that the case against Hospital was discontinued for reasons that are confidential and that the plaintiffs proceeded with the case at trial only against the physician defendant. No evidence was introduced by the Plaintiffs against the Hospital Defendant at trial but the verdict slip required the jury to assess the negligence claims against both Defendants for comparative negligence purposes.