Thursday, September 30, 2010

Plaintiff Files Petition for Reargument En Banc in Barrick v. Holy Spirit Hospital

Plaintiff's counsel has filed a Petition with the Superior Court for Reargument en banc in the case of Barrick v. Holy Spirit Hospital.

You may recall that this was the case in which the Superior Court held that Plaintiff's counsel must turn over their letters to their medical experts in discovery. For more details to the Superior Court's original decision, click this link to my former blog post on the matter:

http://www.torttalk.com/2010/09/amicus-curiae-position-advocated-for.html

I will keep you advised as to whether the Plaintiff's Petition for Reargument en banc is granted.

Ciavarella Re-Indicted In Luzerne County Judicial Scandal Case

According to a September 29, 2010 article in the Legal Intelligencer by Leo Strupczewski entitled "Grand Jury Re-Indicts Ciavarella in Luzerne County Fraud Case," in response to the recent United States Supreme Court decision overruling the honest services fraud statute, a federal grand jury has handed down a superseding indictment against former Luzerne County Common Pleas Judge Mark A. Ciavarella Jr.

Under the new indictment and with the removal of the honest services charges and certain tax fraud charges, the number of charges against the former Luzerne County judge has been reduced from 48 to 39.

The new indictment still charges Ciavarella with fraud, racketeering, money laundering, and tax violations. The indictment further alleges that Ciavarella received "millions of dollars in illegal payments," along with fellow former Luzerne County Common Pleas Judge Michael T. Conahan.

The indictment seeks forfeiture of more than $2.8 million, which was allegedly the amount of money generated as a result of the judges' criminal activity.

On a related note, although he has previously pled guilty, former Judge Conahan has yet to have his sentencing date set.


Here's a link to a Times Leader article on this developing story:

http://www.timesleader.com/news/Ciavarella_facing_new_indictment_09-29-2010.html

Monday, September 27, 2010

Pennsylvania House Bill 2246 Pulled From Consideration by Pennsylvania Legislature

House Bill 2246, a bill that would have, in part, allowed the arguing of specific dollar amounts for non-economic damages to the jury in automobile accident matters has been pulled by Senate leadership from consideration, effectively killing the bill.

The Pennsylvania Defense Institute was part of a coalition of insurance and business groups opposed to the bill.

Montgomery County Bar Association CLE Seminar Later Today (9/28/10)

Avoiding Appellate Pitfalls for the Trial Lawyer

A CLE Opportunity Presented by the Montgomery Bar Association Trial Lawyers Section

On September 28, 2010, please consider joining the Montgomery Bar Association's Trial Lawyers Section and a very distinguished panel of appellate judges, former judges, and appellate experts for an informative discussion of the many appellate and waiver pitfalls awaiting the unsuspecting trial lawyer.

Take advantage of the astute observations of our illustrious panel, including:

- The Hon. Jane Cutler Greenspan, former Justice, Pennsylvania Supreme Court

- The Hon. Susan Peikes Gantman, Judge, Pennsylvania Superior Court

- The Hon. Anne E. Lazarus, Judge, Superior Court of Pennsylvania

- Karen Reid Bramblett, Prothonotary, Superior Court of Pennsylvania

- Leonard R. Blazick, Esq., Assistant Chief Staff Attorney, Central Legal Staff, Superior Court of Pennsylvania

- Alicia Hickok, Esq., Assistant Counsel to the PA Supreme Court's Appellate Rules Committee

Moderator: Joseph P. Walsh, Esq., Walsh Pancio, LLC



And, enjoy a wine & cheese reception with panel members immediately following the presentation.


Register online at: http://www.montgomerybar.org/events/event.php?eventID=3240&tab=calAll


Details below.


CLE Seminar - Avoiding Appellate Pitfalls for Trial Lawyers

Tuesday, September 28, 2010
3:00 pm to 5:15 pm
MBA CLE Room

LESSONS FROM THE GODFATHER Article Available in PDF Form

Should anyone desire a copy, I now have a copy of my "Lessons From the Godfather" article as it appeared in the Defense Research Institute's For the Defense magazine in PDF form. If interested, shoot me an email at dancummins@comcast.net and I will send a copy. Thanks.

Thursday, September 23, 2010

How To Register for Upcoming Telephone CLE Seminar on the Barrick v. Holy Spirit Decision

As previously reported here, on Sept. 16th, the state Superior Court issued a decision in Barrick v. Holy Spirit Hospital, et al. regarding the disclosure of medical records. In a 15-page opinion written by Judge Olson, the court held that either side is allowed discovery of written communications/correspondence to his/her expert witness. This applies to both plaintiffs or defendants. In this case, the defense was seeking the plaintiff lawyer’s communications to the plaintiff expert and it was ordered disclosed.

The Pennsylvania Association for Justice is holding a one-hour, one CLE credit, phone seminar on Oct. 19, 2010 from Noon to 1 p.m. to address the implications of this decision. I am participating as a presenter, presumably based upon the fact that I participated in the matter as the proponent of the amicus curiae position of the Pennsylvania Defense Institute.

To register, call 215 546-6451 or click here:
http://eseries.pajustice.org/source/Events/Event.cfm?Event=EW101910

Wednesday, September 22, 2010

Petition for Re-Argument in Sacket III Denied by Superior Court

Yesterday, September 22, 2010, the Superior Court denied Nationwide's Motion for Reargument/Reconsideration in Sackett v. Nationwide (Sackett III).

The opinion in Sackett III held that the trial court correctly decided on remand that a vehicle was not added under a newly/after acquired vehicle clause in an insurance policy and that the insurer therefore should have had the insured sign a new rejection of stacking form in order for non-stacking to apply when adding an additional car to a two car policy.

It remains to be seen whether the carrier will attempt to bring this matter up to the Pennsylvania Supreme Court.

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

Sunday, September 19, 2010

HOPE TO SEE YOU AT THE PENNSYLVANIA DEFENSE INSTITUTE'S ANNUAL CONFERENCE

Omni Bedford Springs Resort


42ND PENNSYLVANIA DEFENSE INSTITUTE ANNUAL CONFERENCE

September 30, 2010 - October 1, 2010


GREAT SEMINAR


AND


GREAT OPPORTUNITY TO NETWORK

WITH CLAIMS PROFESSIONALS AND

INSURANCE DEFENSE COUNSEL

CONTINUING LEGAL EDUCATION SEMINARS:

21st Century Lawsuit
“The Electronic Revolution in the Courtroom”

• E-Discovery - Current Law and “Nuts and Bolts”
• The Electronic Courtroom
• Technology and Engineering Courtroom Presentations
• Other Electronic Advancements in Case Management

GREAT LOCATION

BEDFORD SPRINGS RESORT & SPA
Bedford, Pennsylvania

For more information and a registration form, contact

David Cole, Executive Director of the Pennsylvania Defense Institute, by email
at

coled01@padefense.org



HOPE TO SEE YOU THERE!

Friday, September 17, 2010

New Westlaw Citations for Recent UM/UIM - Worker's Compensation Decisions

I recently reported on decisions by Lackawanna County Judge Terrence Nealon and Allegheny County Judge Alan Hertzberg both holding that there can be no UIM or UM recovery were the injured party is injured at work by another co-worker or by the employer. Here are the new Westlaw citations for those decisions:


Erie Ins. Exchange v. Conley, 2010 WL 3455532 (Alleg. Co. 2010 Hertzberg, J.)

Petrochko v. Nationwide Mut. Ins. Co., 2010 WL 3540125 (Lacka. Co. 2010 Nealon, J.)

Upcoming Telephone CLE Seminar on the Barrick v. Holy Spirit Decision

I have been invited to be a presenter during an upcoming telephone seminar being put on by the Pennsylvania Association for Justice on the Superior Court's recent decision in Barrick v. Holy Spirit Hospital, in which the court held that letters from counsel to medical experts are discoverable. I am assigned to give the defense perspective on the issue.

The telephone seminar is currently set to take place on October 19, 2010 from 12 noon - 1 p.m. More details to follow.....

A New Twist in a Post-Koken Case

Tort Talkers may recall that I reported on the Philadelphia County Post-Koken proper venue case of Thomas v. Titan Auto Ins. Co., and Nationwide, et al., March Term 2010, No. 03050 (Phila. Co. May 10, 2010 Tereshko, J.). Here's the link to that July of 2010 blog post: http://www.torttalk.com/2010/07/couple-more-post-koken-cases-brought-to.html.

The case was transferred by the court from Philadelphia County to Montgomery County under Pa. R.C.P. 1006 (pertaining to proper venue) as the place of the accident was in Montgomery County and the Plaintiffs and the individual Defendants all resided in Montgomery County at the time of the motor vehicle accident. The Plaintiff had attempted to file in Philadelphia County under the argument that the insurance carriers did business in that jurisdiction, thereby allegedly giving rise to proper venue. The decision to transfer was not based upon any forum selection clause as I have been informed that the Nationwide policy does not contain any form selection clause.

That case is going up on appeal and, on September 16, 2010, Judge Tereshko issued his Rule 1925 Opinion, explaining the rationale for his decision and revealing a surprising twist.

In the court's original Order dated May 10, 2010, the trial judge "ordered that this matter is transferred to Montgomery County." Judge Tereshko further ordered that the uninsured motorist claims asserted in Counts V and VI of the Complaint (against Titan/Nationwide) were "severed and will be tried separately."

It is my understanding that both the defense counsel and the plaintiff's counsel read the original Order to mean that the entire matter was transferred out of Philadelphia and over to Montgomery County.

However, in the court's Rule 1925 Opinion, the Judge ruled that ONLY the third party liability case against the tortfeasors should be transferred to Montgomery County.

Judge Tereshko upheld his severance of the claims but ruled that the uninsured motorist claims against Titan/Nationwide, although severed from the third party case, would stay in Philadelphia County as that was a proper venue for claims against those defendants.

Judge Tereshko's Opinion is also of note in that he agrees that Post-Koken third party cases and UM/UIM claims should not be tried together in part because the introduction of "insurance" issues into the jury trial violate Pennsylvania Rule of Evidence 411 and would be unduly prejudicial to the tortfeasor defendant under the relevancy test found under Pennsylvania Rule of Evidence 403.

The Judge also rejected the Plaintiff's argument that the claims should be allowed to stay together under the Joinder Rules found in Pa.R.C.P. 2229 that allow claims arising out of the same transaction or occurrence to be joined together in a single lawsuit. Judge Tereshko viewed the third party claims as being grounded in negligence and the uninsured motorist claims being grounded in contract law and cited a line of non-Post-Koken cases to support his conclusion that a joinder of these claims would be inappropriate.

Anyone desiring a copy of Judge Tereshko's Rule 1925 Opinion and/or his original May 10, 2010 Order may contact me at dancummins@comcast.net.

Recent Cases Relevant to Defenses to Consumer Protection Claims

To the extent you may be interested, here's a link to a blog posting on the Drug and Device Law Blog by Attorney James Beck of the Philadelphia office of the Dechert LLP law firm. The post is Pennsylvania specific and includes factual information relevant to defenses to consumer protection claims that's hard to find:


http://druganddevicelaw.blogspot.com/2010/09/more-spherical-error-this-time-in.html

Thursday, September 16, 2010

AMICUS CURIAE POSITION ADVOCATED FOR PENNSYLVANIA DEFENSE INSTITUTE PREVAILS AT SUPERIOR COURT LEVEL

I am happy to report that the amicus curiae brief and oral argument I presented on behalf of the Pennsylvania Defense Institute in the case of first impression of Barrick v. Holy Spirit Hospital has prevailed in the Superior Court as confirmed by the Court's Opinion handed down yesterday. The prevailing defense attorney is Attorney Stephanie L. Hersperger of the Harrisburg, PA office of Thomas, Thomas & Hafer.

The appeal involved the novel expert discovery issue of whether a plaintiff's treating doctor/medical expert witness for trial should be required to produce letters and e-mails the doctor received from the plaintiff's attorney dealing, in part, with how the expert should frame his opinion.

This issue was raised through the actions of the Plaintiff's attorney in the matter. The Plaintiff's attorney wrote letters and emails to the Plaintiff's medical provider that admittedly addressed the strategy of how the doctor should frame his expert report. When the defense pursued the production of those letters in discovery by way of a subpoena for the doctor's file, Plaintiff's counsel objected.

The trial court allowed for the discovery, and it was the Plaintiff's attorney who appealed the matter up to the Superior Court.

On September 16, 2010 the Superior Court issued an Opinion affirming the trial court's decision in Barrick v. Holy Spirit Hospital, 2010 Pa.Super. 170 (Pa.Super. Sept. 16, 2010, Musmanno, Lazarus, Olson, J.)(Opinion by Olson, J.).

Noting that it was faced with a case of first impression, the Superior Court rejected the Plaintiff's contention that the letters and emails at issue were protected by the attorney work product doctrine. Rather, the court found that it was "compelled to find that if an expert witness is being called to advance a party's case-in-chief, the expert's opinion and testimony may be impacted by correspondence and communications with the party's counsel; therefore, the attorney's work product doctrine must yield to discovery of those communications."

In so ruling, the Superior Court adopted a bright line rule in favor of the production of such written communications to a trial expert by counsel. The Court stated that litigants are entitled to discover whether an expert's opinions are his own or a mere parroting of what he or she was told by counsel. The Court further warned that, since the attorney work product doctrine is not an absolute privilege against disclosure, counsel took a risk in communicating as he did with the expert.

It is noted, parenthetically, that the Superior Court favorably pointed to prior trial court decisions on this issue by Lackawanna County Court of Common Pleas Judge Carmen D. Minora in Shambach v. Fike, 82 Pa.D.&C. 4th 535 (Lacka. Co. 2006) and Pike County Court of Common Pleas Judge Harold A. Thomson, Jr. in Pavlak v. Dyer, 59 Pa.D.&C. 4th 353 (Pike Co. 2003).

Obviously, this decision will impact defense counsel and their communications with independent medical examination (IME) experts as well. But seasoned defense counsel have long known to keep such letters neutral with the understanding that they may have to be produced in discovery. Now, with Barrick v. Holy Spirit Hospital, there is no question that plaintiff's counsel will likewise have to produce their correspondence to plaintiff's medical experts for trial as well.

Here's a link to the Superior Court's Opinion in Barrick v. Holy Spirit Hospital:

http://www.aopc.org/OpPosting/Superior/out/a20042_10.pdf


If you have any questions or comments you can click on "comments" at the bottom of this post or contact me at dancummins@comcast.net.

Superior Court Reverses Trial Court's Grant of Summary Judgment Based Upon Trivial Defect Doctrine in Trip and Fall Case

You may recall that I previously reported on the Pike County Court of Common Pleas Decision on granting summary judgment to the Defendant under the trivial defect doctrine in the case of Melchiorre v. Lord's Valley Xtra Mart back in June of 2009.

That decision was appealed by the Plaintiff and, on September 8, 2010, the Pennsylvania Superior Court handed down its “non-precedential decision” reversing the trial court granting of summary judgment in a 2 to 1 decision. See Melchiorre v. Lourdes Valley Xtra Mart, No. 2038 E.D.A. 2009 (Pa. Super. Sept. 8, 2010, Gantman, Shogan, and Mundy, J.J.) (Gantman, J., dissenting).

In its non-precedential opinion, the Superior Court quoted extensively from the case Mull v. Ickes, 994 A.2d 1137 (Pa. Super. 2010) for the law surrounding trivial defects.

The Superior Court's Opinion reminds us that Melchiorre involved a plaintiff who tripped on the lip of a concrete pad that was surrounded by asphalt at a gas station. The trial court in Pike County had ruled that, based upon its review of the record and the photographs, “the one inch deviation is clearly trivial, and that, as a matter of law, [the defendants] were not negligent for permitting its existence.”

The Superior Court disagreed and noted that, its review of the records, in a light most favorable to the non-moving Plaintiff, compelled the conclusion “that the defect in this matter was not so trivial as to authorize summary judgment as a matter of law.”

The Superior Court noted that the deviation between the concrete pad and the surrounding asphalt, as depicted in the photographs, reflected that the 1-inch variation was not consistent around the concrete pad, but rather, the difference between the asphalt and concrete in other areas of the concrete pad may have been more or less than one inch at different places. Accordingly, the Superior Court found that the evidence established “that the defect was not obviously trivial as there is no definite or mathematical rule that determines when a defect is trivial.”

Finding that the evidence was sufficient to establish genuine issues of material fact that must be resolved by a jury, the Superior Court reversed the entry of summary judgment and remanded the case back to the Pike County Court of Common Pleas for further proceedings. As noted, Superior Court Judge Gantman dissented from this decision without any opinion.

I thank the prevailing plaintiff’s attorney, Gene Goldenziel of the Scranton law firm of Needle, Goldenziel, & Pascale, for forwarding this unpublished decision to my attention.

Anyone desiring a copy of this opinion, may contact me at dancummins@comcast.net.

Recent Post-Koken Decision on Venue From Judge Van Jura in Luzerne County

Judge Joseph Van Jura of the Luzerne County Court of Common Pleas recently issued an August 16, 2010 Order in the post-Koken case of Wissinger v. Brady, Laubach, and State Farm, No. 3792-CIVIL-2010 (Luz. Co. Aug. 16, 2010, Van Jura, J.), granting the Preliminary Objections of a third party defendant asserting improper venue under Pa. R.C.P. 1006.

The plaintiff involved in this matter was from Northumberland County. The accident occurred in Northumberland County. The tortfeasor defendants were from Montour County.

Generally speaking, proper venue for a car accident case is in the county where the accident occurred or where the defendants reside or were served.

Although the plaintiff was apparently arguing that suit could be filed in Luzerne County on account of the fact that State Farm did business in that county, the third party tortfeasor argued that there was no joint and several liability between the third party defendant and the UIM carrier to support venue in Luzerne County.

As noted, Judge Van Jura granted the tortfeasor defendant's preliminary objections and ordered the case transferred to Northumberland County. Plaintiff’s counsel has filed a Notice of Appeal from this decision. Perhaps a Rule 1925 opinion may be forthcoming from the trial court.

I thank the prevailing defense attorney, Aaron Decker from the Plains, Pennsylvania office of Snyder & Associates, in-house counsel for Nationwide, for forwarding this Order to my attention.

Anyone desiring a copy of this Order may contact me at dancummins@comcast.net.

I will add this case to the post-Koken scorecard in short order - - I invite you to check out the post-Koken scorecard by scrolling down the right hand column and clicking on the date noted under “Post-Koken scorecard.”

Appropriate Appeal Period for Motion to Vacate and/or Modify in a UM/UIM Case

In the case of Bentivegna v. State Farm Mutual Automobile Insurance Company, No. 2009-CIVIL-4423 (Cambria Co. Sept. 7, 2010, Fleming, J.), the trial court addressed the applicable time period for seeking judicial review on a Motion to Vacate and/or Modify an uninsured motorist (UM) award.

Interestingly, in this decision, the trial court found that the 30-day period for seeking judicial review found in the Uniform Arbitration Act of 1980 supersedes the Arbitration Act of 1927’s 90-day period, even where the policy called for arbitration pursuant to the Act of 1927. In so ruling, the trial court noted that the Act of 1927 was repealed by the Uniform Arbitration Act of 1980.

That repeal reduced the limitations period from 90 days to 30 days. 42 Pa. C.S.A. §7315. Judge Fleming noted that, despite an agreement in the policy to arbitrate a dispute under the Act of 1927, the limitations period for arbitration appeals is 30 days under the law because parties cannot contractually extend a statutory limitations period. [numerous citations omitted.]


I thank the prevailing defense attorney, Thomas MacDonald of the Pittsburgh law firm of Summers, MacDonald, Hudock, Guthrie & Skeel for bringing this case to my attention.

Anyone desiring a copy of this opinion may contact me at dancummins@comcast.net.

Tuesday, September 14, 2010

ABA JOURNAL COMPILING LIST OF THE 100 BEST LEGAL BLOGS

I received an email indicating the the ABA Journal is compiling a list of the 100 Best Legal Blogs. Here's a link to the form to cast your vote if you are interested in doing so:



http://www.abajournal.com/blawgs/blawg100_submit/



Thanks.

Sunday, September 12, 2010

LESSONS FROM THE GODFATHER


My article, "Lessons From the Godfather: Universal Principles and Practical Advice," was published in the September 2010 edition of For the Defense, a monthly magazine issued by the Defense Research Institute, an international group comprised of insurance claims professionals and civil litigation defense attorneys. The magazine is sent out to the thousands of members of the group all around the world.

This article, which previously appeared in slightly different form in the August 29, 2005 edition of the Pennsylvania Law Weekly, takes famous quotes from the Godfather movies and applies them to the practice of law. In 2006, the article earned me a First Place Award in the Schnader Print Media Awards in the Weekly Newspapers category.

To view the article for your hopefully reading enjoyment, please scroll down the right hand column of the blog until you get to "My Published Articles" and click on "Lessons From the Godfather: Universal Principles and Practical Advice" in the JDSupra Box.
The above images were secured from the free site http://www.blingcheese.com.

Tuesday, September 7, 2010

Grant of New Trial Affirmed in Pike County Trip and Fall Case

A recent non-precedential decision by the Pennsylvania Superior Court in the trip and fall case of Stefanelli v. Birchwood Lakes Community Association, 1444 EDA 2009 (Pa.Super. Aug. 10, 2010) is significant for the fact that prior automobile accident decisions were utilized by the court to support the granting of a new trial for a plaintiff in a case where a defense verdict was entered after the jury found negligence but no factual cause even though all of the medical experts agreed that the Plaintiff sustained an injury as a result of the incident.

The case went up on appeal from the granting of a new trial by Pike County Court of Common Pleas Judge Gregory Chelak found that the jury's verdict "was so contrary to the evidence as to shock one's sense of justice."

More specifically, the Judge noted that the agreement of the medical experts for each side that the Plaintiff sustained some form of injury as a result of the incident combined with the jury's finding of negligence resulted in the trial court ruling that the jury's additional finding of no factual cause as being against the weight of the evidence.

As such, Judge Chelak granted the Plaintiff a new trial. On appeal, the Superior Court affirmed in this non-precedential Opinion.

Anyone desiring a copy of the Superior Court's Opinion in Stefanelli v. Birchwood Lakes may contact me at dancummins@comcast.net.

I thank the prevailing Plaintiff's attorney, James Conaboy Esquire of the Scranton law firm of Abrahamsen, Conaboy and Abrahamsen for forwarding this decision to my attention.

Recent Slip and Fall Cases of Note

Vazquez v. Wal-Mart Stores, Inc., PICS Case No. 10-2688 E.D. Pa. (August 5, 2010, Pollak, J.)

Wal-Mart’s Motion for Summary Judgment on Plaintiff’s slip and fall Complaint was denied by Judge Pollak of the Eastern District Federal Court where Plaintiff offered sufficient evidence for a jury to define that Defendant created a dangerous condition that lead to the fall and/or had notice of it.

In this case, the Plaintiff slipped and fell on a puddle of liquid bubbles that a child had pulled on the floor in an area near the self-check out registers.

A Wal-Mart surveillance system video showed that an unsupervised child pulled the liquid out on the floor less than two minutes before the Plaintiff fell.

The Court noted that Wal-Mart had constructive notice of the danger because the child had interacted with an “impulse” display near the registered designed to entice children to pick up merchandise. The Court also noted that the video showed the child sliding around in the spill before the incident occurred such that the store could have had notice to clean up the area before the Plaintiff’s incident occurred.


Cater v. Starbucks Corp., PICS Case No. 10-2689 (E.D. Pa. August 10, 2010, Pollak, J.)

The Defendant Starbuck’s Motion for Summary Judgment on the Plaintiff’s slip and fall claim was denied by Judge Pollak of the Eastern District Federal Court because reasonable minds could differ on whether or not the Plaintiff had a reasonable alternative to patronizing the store and/or crossing the parking lot to help another injured patron who had previously slipped and fallen on ice.

At the time of the Plaintiff’s fall, the Plaintiff and her husband had stopped to help another patron who had slipped and fallen in the parking lot area. The Plaintiff fell when she went to retrieve items from the other patron’s car.

The Court rejected Starbuck’s argument that summary judgment was appropriate because the Plaintiff assumed the risk of falling on the icy parking lot and had safe alternative to crossing the lot, including the alternative of choosing not to go to the Starbuck’s store at all.

In this matter, the Court concluded that a jury could possibly find that the Plaintiff did not have any alternative to crossing the Starbuck’s parking lot. The Court noted that the reasonable minds could disagree on whether it is a viable alternative to stop frequenting business all together on days following winter storms. The judge also noted that reasonable minds could consider that the Plaintiff did not have any alternative but to help this injured person who had previously slipped and fallen in the parking lot.


Caucci v. Chelsea Pocono Holdings, LLC, PICS Case No. 10-2682 (Monroe Co.,
June 23, 2010, Miller, J.)

This case involves a slip and fall on a patch of ice in a parking lot at a shopping center. In this matter, the snow plow contractor filed a Motion for Summary Judgment arguing that it did not have any duty to maintain the property in a safe condition. While Plaintiffs did not oppose this Motion, other Defendants did.

The facts revealed that the snow removal contractor entered into an agreement that it would not begin snow plowing or snow removal unless specifically requested to do so by the owners of the premises. Under the agreement, upon completion of the snow removal, the premises owner was to inspect the job completed. The facts also reveal that the Defendant snow removal contractor was not permitted to perform any snow removal operations without the explicit authorization of the owner of the premises.

In her decision, Monroe County Judge Linda Wallach Miller noted that 13 days had passed between the time the snow removal contractor was on site for snow removal and the time the Plaintiff fell.

The snow removal contractor argued that it did not have any duty to perform any ongoing maintenance under the contract. The snow removal contractor also asserted that they did not owe any duty to the Plaintiff at the time the Plaintiff fell.

The Defendant landowner contended that the snow removal contractor only performed spot checks upon completion of the its snow plowing and that the snow plow contractor failed to remove all of the snow as required by the agreement between the parties.

Judge Miller ruled that the landowner Defendants did not present any evidence that the Defendants owed a duty to the Plaintiff at the time of the incident. The Court noted that the landowner, and not the snow removal contractor, was primarily responsible for overseeing the snow removal on the property. Additionally, it was the landowner’s responsibility to inspect the job completed before allowing the snow removal contractor to leave the job site.

Based upon these findings, Judge Miller of the Monroe County Court of Common Pleas granted summary judgment in favor of the snow removal contractor.


Source: 8/24/10 "Case Digests" from Pennsylvania Law Weekly. Copies of these cases may be secured for a small fee by calling the Pennsylvania Law Weekly's Instant Case Service at 1-800-276-7427.

Saturday, September 4, 2010

A Litigation Tip from TORT TALK

Here's a litigation tip/reminder from Tort Talk:



The Pennsylvania Rules of Evidence differentiate between the proper scope of cross-examination for non-party witnesses versus party witnesses.

Section 611(b) of the Pennsylvania Rules of Evidence provides, in pertinent part, as follows:

(b) Scope of cross-examination. Cross-examination of a witness other than a party in a civil case should be limited to the subject matter of the direct examination and matters affecting credibility; however, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. A party witness in a civil case may be cross-examined by an adverse party on any matter relevant to any issue in the case, including credibility, unless the court, in the interest of justice, limits the cross-examination with respect to matters not testified to on direct examination.

Thus, under Pa.R.E. 611(b), the scope of cross-examination of a party plaintiff or defendant witness is not necessarily bound by the extent, content, or scope of the direct examination, but rather, can be much broader unless limited by the court in its discretion.

Friday, September 3, 2010

REMEMBER: There's North Jersey and Then There's South Jersey



Here's a link to an article from the ABA Journal regarding a lawyer suing under the allegations that all those shenanigans going on in North Jersey in Jersey Shore with Snooki and all the gang constitute a criminal enterprise:






10 Tips to Bolster Attorneys' Well-Being by Dan Bowling, Esquire


I came across the below article by Dan Bowling, Esquire and thought it to be worthy of sharing in the hopes it may help somebody out.


There's No Crying in Law: 10 Tips to Bolster Attorneys' Well-Being

by


Dan Bowling


The Legal Intelligencer
September 01, 2010


Being a "happiness guru" is hard work. My years as a labor lawyer battling Teamsters were easy in comparison. So was fighting my way up the corporate ladder at Coca-Cola Enterprises. But since I started working with Martin Seligman of the University of Pennsylvania, the world-famous expert on the science of well-being, things have gotten really tough. All people want from me now is the secret to happiness.

My lawyer friends sometimes ridicule me about my new vocation. ("Hey, are we playing golf today or searching for truth and meaning?") But they also want to learn about well-being. So do a growing number of law schools, law firms and legal departments.

The demand for answers — I would say cries for help, but everybody knows there's no crying in law — is enormous. Everyone wants to know if happiness and law can coexist.

They have good reason for asking. Lawyers, as a group, are more likely to suffer from depression and anxiety, alcoholism and drug abuse, and a host of other psychological and emotional disorders than any other occupational group. These facts seems unfathomable, given the relatively high social standing, affluence and educational attainment of lawyers — factors that correlate with well-being in most careers. But the facts, as we like to say, are the facts.

So, at the risk of sounding trite while compressing centuries of thought and research into a list, here are 10 ideas for greater well-being in law.

1. Play to Your Strengths
.


The research is overwhelming that you are happiest when you use your strengths and personality in your work. If you are a happy-go-lucky extrovert, try to avoid spending 10 years doing discovery requests.

2. Choose Optimism.


Although happiness is partly genetic, it is partly of our own choosing. The good news is that optimism can be learned. Start by challenging your own thoughts. Pessimists develop negative thinking patterns, such as believing that a bad outcome is a career ender. Optimists perceive every setback as temporary.

3. Keep Perspective.


The universe doesn't revolve around you and your worries. If you aren't in the top half of your class, it's not the end of the world, although it might seem like it when first-year grades come out. If you don't make partner, life will go on.

4. Keep Moving — Literally.


Don't fight evolution. Your DNA comes from those early humans who could outrun prehistoric predators. The sit-around types became dinner and didn't pass on their genes. Take frequent breaks and walk around. Get some air and sunlight. Sure, take a file with you so you can keep working, but move around.

5. Be Sociable.


The famed positive psychologist Chris Peterson, teacher of the year at the University of Michigan, defines happiness as follows: "Other people matter." Pay attention to your old buddies from school, your family, the person next door. Go to reunions. Or at least happy hour every now and then.

6. Practice Gratitude.


And thank those friends of yours. Studies show that people who express gratitude to others, and have a sense of thankfulness for the good things in life, experience much higher levels of well-being than those who don't.

7. Be Resilient.


At Penn, we are working with the U.S. Army to teach soldiers resilience techniques to cope with the stresses caused by never-ending deployments into a war zone. As with #2 above, the techniques involve developing thinking patterns to help navigate through life's inevitable challenges. Most of the items on this list are taken directly from the training being done with the military.

8. Pause/Meditate.


Stop! Right now. Focus on what you are doing. Block everything else out in your mind other than this present moment. Take a deep breath. And another. Relax. There is abundant evidence that a few moments of mindfulness, or simple meditation, during the workday bring significant health and happiness benefits.

9. Keep a Sense of Humor.


And work around people who do. Humans are biologically programmed for fun and play. I am not talking about Nerf football in the hallway, but try to lighten up a bit. I once had a job where laughing — I kid you not — was frowned upon as being unprofessional. I quit.

10. Make Law a Calling — or Get Out.

There is work, and there are callings. The happiest people find both at the same place. If you are moved by helping your client solve thorny legal issues, or sense you are fighting for a cause larger than yourself, you are in a calling. And I bet you love being a lawyer. If you hate it, get out. Follow Melville's advice and go to sea. Buy a bar in the islands. Or bus tables there until you have enough money to buy it. Do anything, but don't stay in a job you hate.

But I am a pragmatist and a realist. If you are saddled with debt, desperate to find a job, or feeling stuck in a high-paying position because of a mortgage and private school for the kids, a list like this sounds glib. But I challenge you to try at least one or two of these interventions and send me an e-mail letting me know if they helped a bit.


This article originally appeared on "The Careerist," a blog affiliated with The Legal. I saw it in the September 1, 2010 online edition of The Legal Intelligencer as well and cite to that as my source. To read more articles of interest to in-house counsel, visit www.thelegalintelligencer.com and click on In-House under Firms & Lawyers. •


Dan Bowling holds faculty appointments at Duke Law School and in the University of Pennsylvania’s graduate program in positive psychology. Formerly head of global human resources for Coca-Cola Enterprises, he now advises institutions about employee well-being. He can be reached at bowling@law.duke.edu.

I thank Attorney Dan Bowling for granting me permission to republish his excellent article here.


I also note that I added above photo by Francesco Marino from http://www.freedigitialphotos.net/. The web address for Francesco Marino's online profile is:
Image: Francesco Marino / FreeDigitalPhotos.net

Thursday, September 2, 2010

Add Another Case to the String Cite of Federal Court Cases Declining Jurisdiction on Insurance Coverage Questions

My partner, Timothy E. Foley, Esquire prevailed on a Motion to Dismiss for an insured defendant in the Federal Middle District Court Case of Founders Ins. Co. v. Garofalo, No. 03:10-CV-1114 (M.D.Pa. Aug. 30, 2010, Conaboy, J.) in which Judge Conaboy was convinced by a long string cite of similar decisions to decline to exercise his discretionary jurisdiction over an insurance coverage question posed by the Plaintiff carrier.

The underlying case involved a fatal car accident. The tortfeasor driver was allegedly intoxicated and the underlying suit was against that driver and the bar that allegedly served alcohol to the driver. The tortfeasor driver also happened to be the president of the corporation that owned the bar (i.e. he allegedly served himself). The carrier at issue, Founders Insurance Company, covered both the defendant driver and the corporation that owned the bar.

In this Federal Court declaratory judgment action, the carrier sought a judicial declaration that it need not provide a defense or coverage under the circumstances presented. The insureds filed a motion to dismiss.

Without reaching the merits of the declaratory judgment action, Judge Conaboy relied upon a string cite of cases presented by Attorney Tim Foley all standing for the proposition that the Federal Court had the discretion to decline to hear such cases as the Complaint did not involve any federal question and dealt strictly with contract interpretation under well settled Pennsylvania law. In the face of this overwhelming precedent, Judge Conaboy declined to take jurisdiction over the case and granted the motion to dismiss.

This decision adds another notch to the string cite of cases in this regard and furthers the notion that the Federal Courts are not interested in addressing these issues where they do not have to. An analysis of the other similar cases, and their impact on Post-Koken cases can be seen in my Pennsylvania Law Weekly article "Here Comes Hurricane Koken" 31 PLW 1165 (Oct. 27, 2008), which can b read by clicking on this link: http://www.jdsupra.com/post/documentViewer.aspx?fid=ef090f48-d1fa-4e1c-8569-3538ec1fd556.

Anyone desiring a copy of the case of Founders Ins. Co. v. Garofalo may contact me at dancummins@comcast.net

Another Trial Court Decision Upholding Denial of UIM Claim Under Exclusivity Provision of Worker's Compensation Act (Judge Terrence Nealon)

In my last posting on Tort Talk, I publicized Judge Hertzberg's decision in the Allegheny County case of Erie Ins. Exchange v. Conley, No. GD 09-21471 (Alleg. Co. Aug. 27, 2010, Hertzberg, J.), in which the court granted a motion for judgment on the pleadings in favor of the carrier in a post-Koken lawsuit for UIM benefits on the basis that the exclusivity provision of the Worker's Compensation Act.

Yesterday, I also learned that Judge Terrence Nealon issued his own decision on the same issue on the same day--and with the same result--in the case of Petrochko v. Nationwide, No. 07 CV 7113 (Lacka. Co. Aug. 27, 2010, Nealon, J.). In granting the motion for summary judgment in favor of the UIM carrier, Judge Nealon noted that the issue presented had not been previously addressed by any appellate court in Pennsylvania.

In Petrochko, the injured party was struck by a vehicle operated by her co-worker while both individuals were within the scope and course of their employment. The injured party obtained worker's compensation benefits and then turned to her own personal automobile insurance policy with Nationwide in an effort to secure an additional recovery for her personal injuries.

Judge Nealon's analysis of the issue presented led him to conclude that the exclusivity provision of the Worker's Compensation Act precluded a claim for UIM benefits where the party that injured the Plaintiff was the Plaintiff’s employer (or co-employee). The court held that worker’s compensation benefits were the exclusive remedy for such injured parties.

The basic rationale of both Judge Nealon and Judge Hertzberg in their respective Opinions was aptly put by Judge Nealon in Petrochko, as follows:


"Pennsylvania law and the insurance policy at issue limit UIM coverage to insureds who “are legally entitled to recover damages” from the underinsured tortfeasor. Since the negligent motorist in this case is immune from negligence liability to the insured employee due to the exclusive remedy provision of the Workers’ Compensation Act, the employee is not entitled to recover compensatory damages from the underinsured tortfeasor. As such, the employee is ineligible to collect UIM benefits under 75 Pa. C.S. §1731(c) and the applicable policy."


Both Judge Nealon and Judge Hertzberg have noted in their respective decisions that, where the tortfeasor is a third party not associated with the injured party's employment, UM/UIM benefits may be pursued under appropriate circumstances.

Anyone desiring a copy of Judge Nealon's decision in Petrochko v. Nationwide or Judge Hertzberg's decision in Erie Ins. Exchange v. Conley may contact me at dancummins@comcast.net.


As an aside, I note that this blog post truly shows the beauty of Tort Talk--a quick publication of two important decisions from trial courts on opposite ends of the Commonwealth within days of them being handed down.