Thursday, July 28, 2011

ARTICLE: Call Me From the Road

Below is a reprint of an article of mine from the July 26, 2011 Pennsylvania Law Weekly in which I update the current status of Pennsylvania law and civil litigation on legislative bans against cell phone use while driving.


Call Me From the Road


Lehigh County decision halts trends on banning cell phone use behind the wheel

By


Daniel E. Cummins


2011-07-26 Pennsylvania Law Weekly

In a 2010 column headlined "Hang Up and Drive: Lawmakers and Courts Tackle the Dangers of Cellular Phone Use by Drivers," I analyzed the current legislative and common law trends related to cell phone use while driving.

At that time, the trend involved various municipalities across the Commonwealth of Pennsylvania passing local ordinances banning or limiting the use of mobile communications devices while driving along with Pennsylvania trial courts considering the allowance of punitive damages claims based upon allegations that a defendant driver was using a cell phone at the time of the accident.

Both the legislative and common law trends appear to have come to a screeching halt with the issuance of a May 4 Lehigh County trial court decision by Judge James T. Anthony in the case of Commonwealth v. Steiner in which the court found that Allentown's local ordinance against cell phone use while driving was invalid.

Legislative Trends

The Pennsylvania General Assembly continues to volley legislation on bans against texting and cell phone while driving back and forth between the House and the Senate.

The state Senate did recently approve legislation in the form of SB 314 that would ban texting and use of handheld cell phones while driving. A June 7 amendment changed that Senate bill calling for primary enforcement for texting and driving, but only secondary enforcement for handheld cell phone use. SB 314 has since moved back to the state House of Representatives for further consideration.

The House had previously signed off on a plan under HB 896 to add a $50 fine for drivers whose traffic violations could be tracked back to a distracted driving behavior, including cell phone use. Police would have to write a ticket for the traffic offense — such as speeding or weaving — before adding on the distracted driving fine. HB 896 has moved on to the Senate for consideration.

While the above bills, as well as other similar legislation, continue to be bandied about by the General Assembly, there is currently no statewide prohibition against texting or cell phone use while driving in Pennsylvania.

In the absence of statewide legislation in this regard, many municipalities across Pennsylvania have moved ahead to enact local ordinances on their own.

Of the larger Pennsylvania cities, driving while texting or talking on a cell phone in hand has been banned in Philadelphia and Harrisburg. In both Philadelphia and Harrisburg, talking on a cell phone in a hands-free fashion is still permissible.

Other places across Pennsylvania like Wilkes-Barre, Carbondale, Erie, Bensalem, Lower Chichester in Delaware County, Plymouth Township in Montgomery County, Conshohocken, Lebanon, Bethlehem and Allentown have likewise banned or limited texting and other cell phone use by drivers in one form or another. There may also be other jurisdictions out there that have also enacted bans or are contemplating passing such legislation.

Common Law Trends

The topic of punishing drivers for cell phone use has also come up in the context of recent trial court opinions in motor vehicle accident cases on the issue of whether or not an injured party plaintiff could pursue punitive damages against a defendant driver who was texting or using a cell phone at the time of an accident.

In his Jan. 14, 2010 decision in Linehan v. Jaludi , Pike County Common Pleas Court Judge Gregory H. Chelak of the Pike County Court of Common Pleas addressed the novel issue of whether a plaintiff may pursue a claim for punitive damages on the basis that the defendant was talking on cell phone allegedly to the point of distraction at the time of a car accident.

The plaintiff in Linehan was a police officer whose police vehicle was stopped on the side of the road with the flashing lights activated. Another vehicle was stopped in front of the plaintiff's police car.

The defendant, while driving and purportedly talking away on her cell phone, allegedly drifted off the roadway and crashed into the police car while the plaintiff police officer was inside of the car, resulting in personal injuries to the plaintiff, according to the opinion.

The plaintiff police officer later filed a negligence complaint in which a punitive damages claim was asserted, in part, on the basis of allegations that the defendant was using a cell phone at the time of the accident. The defendant driver filed preliminary objections to the punitive damages claim.

Chelak sustained the defendant's preliminary objections and granted the motion to strike the claim for punitive damages. It was held that the allegations of the complaint — that the defendant was so distracted by her cell phone conversation that she crashed into the plaintiff's police car with its flashing lights — were insufficient, in and of themselves, to support the punitive damages claim at this initial posture of the case.

However, citing the U.S. District Court for the Eastern District of Pennsylvania case of Pennington v. King , as offering support for a punitive damages claim based upon a driver being distracted by cell phone use, the Pike County court noted that, if discovery turned out to confirm the alleged cell phone use and distraction, by way of cell phone records or otherwise, the plaintiff would have the right to seek to amend the complaint in an effort to support the possibility of restating the punitive damages claim. As one of the defense counsel in that case, I can report that it still remains to be seen if this issue will develop any further in that case.

More recently, Judge Michael E. McCarthy of the Allegheny County Common Pleas Court did allow such a punitive damages claim to go forward beyond the preliminary objections stage in an order he issued without an opinion in the 2010 case Deringer v. Li .

In Deringer , the plaintiff alleged, on information and belief, that the defendant engaged in reckless conduct by using a mobile device at the time he rear-ended the plaintiff's motorcycle which was allegedly stopped to make a left turn.

The defendants filed preliminary objections to the plaintiffs' claim for punitive damages. The defense argued that such conduct only amounted to negligence and did not support any claim for punitive damages. The defendant also argued that, to date, the Pennsylvania legislature has not made cell phone use while operating a car illegal.

In overruling the preliminary objections filed by the defendant, McCarthy did note in his order that "[t]he arguments may be more appropriately raised and addressed by motion for summary judgment."

Such a claim for punitive damages has also been allowed to proceed beyond the preliminary objections stage in the Fayette County Court of Common Pleas case of Hall v. Chritchfield .

A Screeching Halt to the Trends

The validity of the various local law bans, as well as the court decisions allowing for punitive damages, may have all been called into question by a Lehigh County criminal court decision finding the ban enacted by Allentown to be invalid.

In the May 2011 Lehigh County Common Pleas Court case of Steiner , Judge James T. Anthony ruled that an Allentown City ordinance prohibiting the use of a cell phone while operating a motor vehicle was invalid because the state legislature intended that all motor vehicle regulations be uniform throughout the state. Anthony held that the Allentown local ordinance would subject motorists to unreasonable inconsistencies contrary to the purpose of the Vehicle Code.

In the criminal case of Steiner , the defendant was charged with violating the ordinance for using a mobile phone while operating his vehicle. The defendant was found guilty and filed a summary appeal. Following the summary appeal hearing, the defendant filed a motion to dismiss alleging that the ordinance was pre-empted by the Pennsylvania Motor Vehicle Code.

After reviewing the law of pre-emption, Anthony ruled that the Pennsylvania Legislature intended that motor vehicle regulations be uniform throughout the Commonwealth and that local municipalities needed express authorization to enact any ordinances on any matter covered by the Vehicle Code. Thus, for the ordinance at issue to be valid, there must be specific authorization in the Vehicle Code permitting the city of Allentown to enact such an ordinance. The court found that no such authorization existed.

The Lehigh County trial court noted that Section 6109 of the Vehicle Code does provide that its provisions shall not be deemed to prevent local authorities from the reasonable exercise of their police powers. That section provides 23 specific examples of regulations that are presumed to be reasonable in this regard. However, none of the 23 examples authorized the action taken by the city in enacting the ordinance pertaining to the prohibition of cell phone use while driving.

The court also noted that the local ordinance did not provide notice to motorists entering into Allentown that cell phone use was forbidden in that jurisdiction. Anthony stated that "[a] motorist could be utilizing a cell phone while driving in a municipality without a ban and, moments later, be unaware that he was violating the ordinance" while entering Allentown.

Anthony found that exposing drivers to such an inconsistency could not be considered reasonable and was contrary to the intended purpose of the Motor Vehicle Code. As such, the court found Allentown Ordinance 14782 invalid and the defendant's motion to dismiss was granted.

There have been reports of a similar decision by a district magistrate judge out of Harrisburg. A local district magistrate judge in Harrisburg likewise reportedly ruled the local ban against using electronic mobile devices while driving in that city unconstitutional based upon lack of notice to motorists entering that city.

Impact on Future Cases

Perhaps the Steiner decision out of Lehigh County will serve as an impetus to compel the Pennsylvania legislature to finalize and pass a statewide law regarding the use of cell phone or texting devices while driving.

In the meantime, in civil matters where there is an allegation of negligence or claims for punitive damages on the part of any driver involved based upon that driver's alleged use of a cell phone at the time of an accident in violation of a local ordinance, Steiner may serve to ultimately defeat such allegations.

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at www.torttalk.com.

Latest Luzerne County Post-Koken Decision in Favor of Consolidation of Claims

Senior Judge Chester Muroski has issued the latest Luzerne County post-Koken decision in favor of the consolidation of claims in Korona v. Kemler and Mercury Insurance, No. 328 of 2011(Luz. Co. 2011 Muroski, S.J.). The court denied the tortfeasor's Preliminary Objections claiming a misjoinder of actions.  The decision was by Order only.

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

Wednesday, July 27, 2011

Access to Plaintiff's Facebook Page Allowed in Federal Middle District Court Personal Injury Matter

Magistrate Judge Martin C. Carlson of U.S. District Court for the Middle District of Pennsylvania recently reviewed the issue of whether information contained within a party's Facebook account is properly subject to discovery in the case of Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D.Pa. June 22, 2011 Carlson, M.J.)

This matter involved a November of 2008 motor vehicle accident that allegedly resulted in severe injuries for the plaintiff limiting his ability to sit, walk, stand, bend, stoop, push, pull and lift. The plaintiff also specifically claimed that he could not drive for any period of time and was physically limited with regard to riding his bicycle or motorcycle.

In discovery, the defendant requested access to the plaintiff's Facebook page under Fed.R.C.P. 26(b)(1).  The court granted the request of both parties that the court conduct an in camera review of the Facebook page as part of the court's analysis.

After this in camera review of the plaintiff's Facebook account, the court found that much of the information on the page was irrelevant, but that the postings on the page suggesting that plaintiff engaged in certain activities after the car accident were discoverable.

More specifically, the court found that postings showing the plaintiff had taken post-accident motorcycle rides, mule rides and hunting trips were relevant and discoverable in light of plaintiff's claims of functional limitations in this matter.

Anyone desiring a copy of the decision by the U.S. Magistrate Judge (an Order only with explanatory commentary) in Offenback v. L.M. Bowman, Inc. may contact me at dancummins@comcast.net.

Tuesday, July 26, 2011

PLEASE SAVE THE DATE - AUGUST 24, 2011 - PDI/NEPATLA CLE SEMINAR AT MOHEGAN SUN CASINO - WILKES-BARRE, PA

The August 24, 2011 Pennsylvania Defense Institute/Northeastern Pennsylvania Trial Lawyers Association CLE seminar at the Mohegan Sun Casino in Wilkes-Barre, PA is now less than 30 days away.

The program is shaping up to be a nice event at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania where there will be raffle prizes, giveaways by the table vendor companies, and a networking cocktail reception at which Attorney John Aponick and Attorney Tom Foley, Jr. will be honored for their 50 years in the practice of law.

I hope you will consider joining us. Here's the Ad for the seminar:


CIVIL LITIGATION DEVELOPMENTS 2011

CONTINUING LEGAL EDUCATION SEMINAR


Honoring John J. Aponick, Jr. & Thomas J. Foley, Jr.
for their 50 Years in Practice of Law

 
Sponsored by


THE PENNSYLVANIA DEFENSE INSTITUTE

and

THE NORTHEAST PENNSYLVANIA TRIAL LAWYERS ASSOCIATION



MOHEGAN SUN CASINO at POCONO DOWNS

Wednesday August 24, 2010

12:30 p.m. to 4:30 p.m.

2 Substantive & 1 Ethics CLE Credits



Immediately followed by Cocktail Reception at the Mohegan Sun Breakers Lounge



12:30 – 1:00 PM Registration





1:00 – 2:00 PM “TRIAL TIPS FROM THE LEGENDS”

John J. Aponick, Jr., Esq. – Marshall, Dennehey, Warner, Coleman & Goggin
Thomas J. Foley, Jr., Esq. – Foley, McLane, Foley, McDonald & MacGregor, P.C.
Moderator: Paul T. Oven, Esq. – Dougherty, Leventhal & Price

BREAK

2:15 – 2:45 PM “SOCIAL MEDIA DISCOVERY”

Melissa A. Scartelli, Esq. – Scartelli, Distasio & Kowalski, P.C.
Alicia C. Caridi, Esq. – Marshall, Dennehey, Warner, Coleman & Goggin


2:45 – 3:15 PM “CLAIMS REP PET PEEVES”

Daniel E. Cummins, Esq. – Foley, Cognetti, Comerford, Cimini & Cummins
Erin Rowan Meyers, Esq. – Claims Manager, Catholic Health Partners


BREAK


3:30 – 4:30 PM "ETHICAL PRACTICE POINTERS FROM THE BENCH"

Judge Correale F. Stevens – President Judge of Pennsylvania Superior Court
Judge Thomas Blewitt – Middle District Federal Magistrate Judge
Judge Thomas F. Burke, Jr. – President Judge of Luzerne County Court of Common Pleas
Judge Robert A. Mazzoni – Lackawanna County Court of Common Pleas Judge
Moderator: Michael A. Genello, Esq. – Murphy, Piazza & Genello, P.C.

Course Planners:
Matthew P. Keris, Esq. – Marshall, Dennehey, Warner, Coleman & Goggin

Daniel E. Cummins, Esq. – Foley, Cognetti, Comerford, Cimini & Cummins


Cost for the CLE/Happy Hour:

• Program for claim representatives/risk managers $25.00

• Program for paralegals $50.00

• CLE program for lawyers $175.00



For reservations, please print and complete the form below and return to PDI
or e-mail it to coled01@padefense.org.





Name(s)_____________________________________________



Firm/Company_________________________________________




Make checks payable to:


PENNSYLVANIA DEFENSE INSTITUTE
P.O. Box 697, Camp Hill, PA 17001-0697


For more information, contact PDI at 800-734-0737

Monday, July 25, 2011

Pennsylvania Superior Court Enters Decision in Post-Koken Venue Case

On July 25, 2011, the Pennsylvania Superior Court issued its opinion in the Post-Koken case of Sehl v. Neff, No. 3438 EDA 2009 (Pa.Super. July 25, 2011 Olson, Freedburg, Colville, JJ.)(opinion by Freedburg) affirming the trial court decision that venue was improper in Philadelphia.

This is the post-Koken venue case in which the UIM policy did not have a venue selection clause and the Plaintiff filed suit in Philadelphia County even though the tortfeasor Defendant did not reside in Philadelphia County and even though the accident did not occur in Philadelphia County.

The Superior Court rejected the Plaintiff's contention that since the defendant UIM carrier could be sued in any county in Pennsylvania under the venue rule of Pa.R.C.P. 1006 on the basis that the carrier conducted business in every county, venue for the claims against the defendant tortfeasor could also be joined and filed in any county along with that UIM claim.

In so ruling, the Superior Court also rejected the Plaintiff's contention that the defendant driver and the UIM carrier could be considered to be jointly and severally liable under the venue rules so as to support the Plaintiff's effort to sue both parties in a single county of the Plaintiff's choice.  To the contrary, the Superior Court agreed with the trial court's ruling that the tort claims against the defendant driver were separate and distinct from the contract claims against the UIM carrier.

As such, the court found that the exception under Rule 1006(c)(1) could not be relied upon to support the Plaintiff's venue selection in this matter.  That exception allows an action to be brought against all defendants in a county where venue is appropriate for one of the defendants "in an action to enforce a joint or joint and several liability against two or more defendants."

I wrote the amicus curiae brief on behalf of the Pennsylvania Defense Institute in favor of the position that venue is not proper in Philadelphia under the circumstances presented. If you wish to review that Brief, it may be accessed by clicking on the link in the JDSupra.com box down on the right-hand column of this blog.

Congrats to the underlying defense attorney, John McGrath, Esquire of the Philadelphia law office of Palmer & Barr, P.C. for this win.

Click here to view the Pennsylvania Superior Court's decision in Sehl v. Neff online:  http://www.pacourts.us/OpPosting/Superior/out/a13026_11.pdf

Saturday, July 23, 2011

U.S. Federal Middle District Judge Malcolm S. Muir (1914-2011)

Federal Middle District Judge Malcolm S. Muir (96) passed away on Friday, July 22, 2011.  Judge Muir had served on the bench since 1970.

Here's a link to a nice article memorializing Judge Muir that was posted on the Lycoming County County Bar Association site by Attorney Gary Weber of the Williamsport law firm of Mitchell, Mitchell, Gallagher, Weber & Southard, P.C.:  http://www.lycolaw.org/news.asp?id=406

Thursday, July 21, 2011

Judge Amesbury of Luzerne County Addresses Municipal Tort Claims Act

In his July 5, 2011 Order and Opinion in the case of Vannucchi v. Marquis, No. 1136 of 2008 and No. 5136 of 2008 (Luz. Co. July 5, 2011, Amesbury, J.), Judge Amesbury ruled upon a Municipal Tort Claims Act case and allowed the case to proceed beyond the summary judgment stage against a towing company, a local police department, and local police officers.


By way of background, this matter arose out of an incident during which a police officer pulled over a motorist on a motorcycle and ultimately made a decision that the motorcycle should be impounded. When the flatbed tow truck operator arrived at the scene, the police officers turned over the keys to the motorcycle to the tow truck operator. The police officers then left the scene.

Thereafter, as the flat bed tow truck operator had loaded the motorcycle onto the flatbed and was talking to the motorcycle operator in the street, a drunk driver came by and struck and killed the motorcycle operator.

In his decision, Judge Amesbury denied the private towing company Defendant’s request to amend the pleadings to assert the defense of governmental immunity based upon an allegation that this was a police tow as a opposed to a private tow. The Court found that such an amendment would be futile as against a positive rule of law in that the tow company could not be considered a governmental entity under the facts presented.

The Court also denied the Motion for Summary Judgment filed by the police department and the local police officers. The Court found that the Plaintiff’s allegations that the failure of the police to use their patrol vehicle as a safety barrier at the scene of the accident as well as the failure of the police to control the scene by the use of flares and/or traffic control devices were negligent allegations that should proceed to a jury for consideration.

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

Sentencing Hearing Set for Ciavarella

According to a July 21, 2011 article by the Associated Press, a sentencing hearing has been set to take place on August 11, 2011 for former Luzerne County Judge Mark Ciavarella.

Tuesday, July 19, 2011

PLEASE SAVE THE DATE - AUGUST 5, 2011 - CLE AT THE BALLPARK

I am working with the Lackawanna Bar Association to plan and present a one hour CLE seminar set to take place in a luxury box at the local Triple-A minor league stadium for the Scranton/Wilkes-Barre Yankees on Friday, August 5, 2011.

There will be a one hour CLE seminar (1 Substantive CLE Credit) followed by a Yankees game followed by a Friday night fireworks show.

During the CLE, I will be providing a Civil Litigation Update and will also present my article "Little League Tips for Big League Lawyers" in which I use little league coaching tips as tips for the practice of law. The presentation will be replete with video clips to help keep the program moving along.

Hope to see you there. Families are welcome. Here's the Ad for the seminar:

 
CLE AT THE BALLPARK
 
1 SUB CLE Credit
 
“Civil Litigation Update/
Little League Tips for Big League Lawyers”

Friday, August 5, 2011
 
PNC Field
Moosic, PA

CLE - 5:30 p.m. – 6:30 p.m.
 
6:30 dinner and game
 
Post-game Fireworks

 
Presenter:

Daniel E. Cummins, Esq.
Foley, Cognetti, Comerford, Cimini & Cummins
Scranton, PA
 
$25.00 per person includes CLE credit,
dinner, beer/soda, game ticket and fireworks.
 
Families are welcome.

 
To register please contact
 
Cathy Egan @ (570) 969-911 or cegan@the-lba.com

Judge Mazzoni of Lackawanna County Upholds Criminal Acts Exclusion in Homeowner's Policy

In the case of Donegal Mutual Ins. Co. v. Lochner, Lees, et. al., No. 2008-CIV-6100 (Lacka. Co. March 15, 2011, Mazzoni, J.), Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas upheld a criminal acts exclusion found in a Donegal Mutual Insurance Company homeowner’s insurance policy as clearly and unambiguously precluding coverage in this matter.

In this declaratory judgment action on a coverage issue, the underlying lawsuit involved a wrongful death and survival action for the fatal injuries of the decedent, allegedly caused by the son of the Donegal Insurance insureds. The decedent and the son had been involved in a physical altercation which resulted in fatal injuries to the decedent. When the decedent's estate sued the son and other Defendants, coverage was sought by the Defendants under the parent’s homeowner’s insurance policy with Donegal.

In agreeing with Donegal that coverage was indeed precluded by the criminal acts exclusion under the policy, the Court pointed to the fact that the son had pled guilty to involuntary manslaughter.

Anyone desiring a copy of this decision of Donegal v. Lochner may contact me at dancummins@comcast.net.

Sunday, July 17, 2011

Pennsylvania Superior Court Affirms Waiver of Stacking Decision

Tort talkers may recall that I previously reported on the case of Heller v. State Farm, No. 408-2008 (Venango Co. 2010, Boyer, J.), a decision that served to clarify certain issues involving inter-policy stacking in UIM cases.

That original decision was also noted to provide an excellent explanation of the interplay of the Pennsylvania Supreme Court’s decisions on this issue in the Craley and Generette decisions.

For more details on that trial court decision, click this link to that blog post:

http://www.torttalk.com/2010/05/clarifying-opinion-out-of-venango.html.


As an update, I note that on July 13, 2011, the Pennsylvania Superior Court issued a memorandum opinion in Heller v. State Farm, No. 844 WDA 2010 (Pa.Super. July 13, 2011 Panella, Shogun, Colville, JJ) affirming the trial court's decision.

In this case, the Plaintiff was attempting to get around their valid waiver of stacking and the State Farm policy's "other insurance clause" in an effort to realize a greater recovery.  The Superior Court rejected the Plaintiff's arguments on the waiver of stacking issue and ruled in favor of State Farm.

Anyone desiring a copy of this Superior Court Opinion may contact me at dancummins@comcast.net.

I thank the prevailing defense attorney in the Heller case, Attorney Tom McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. for bringing this decision to my attention.

Friday, July 15, 2011

Federal Middle District Judge William J. Nealon to Become Longest Serving Judge in History of Third Circuit

Here is an interview from today's Scranton Times-Tribune celebrating Federal Middle District Judge William J. Nealon's reaching of the milestone (tomorrow) of becoming the longest serving judge in the history of the Third Circuit:

http://thetimes-tribune.com/news/judge-william-j-nealon-hits-another-milestone-1.1175480#axzz1SB2ZIX7q

Federal Middle District Judge Edwin M. Kosik Marks 25 Years on the Bench

Here's a link to a Scranton Times-Tribune article by Steve McConnell and Josh Mrozinski noting Federal Middle District Judge Kosik's reaching 25 years on the bench:  http://thetimes-tribune.com/news/judge-edwin-kosik-marks-25-years-on-federal-bench-today-1.1175733#axzz1SB1otWbP.

Thursday, July 14, 2011

Adverse Inference Allowed as Spoliation Sanction in Pennsylvania Eastern Federal District Slip and Fall Case

In the United States Eastern District Federal Court Decision of Baynes v. Home Depot, U.S.A., Inc., PICS Case No. 11-1158 (E.D. Pa. June 9, 2011, Shiller, J.), the Court granted a Plaintiff’s motion for spoliation sanctions in a case where the Defendant store failed to preserve certain video surveillance footage in a slip and fall case. The Court allowed the Plaintiff the sanction of an adverse inference against the Defendant.

In this case, the Plaintiff allegedly slipped and fell at a Home Depot store as a result of a puddle of liquid on the floor.

The Defendant store admitted that there was a standard procedure for identifying and retaining video regarding slip and fall events that occurred in the store. According to the Opinion, the Plaintiff’s counsel also sent a letter to the store requesting that the video surveillance footage be preserved from four (4) hours before the incident to one (1) hour after the incident.

However, the store preserved and produced only about 20 minutes of footage, beginning less than a minute before the Plaintiff’s accident and continuing through her removal from the store by paramedics.

After reviewing the case presented, and applying Pennsylvania law regarding spoliation sanctions, the Court concluded that the Plaintiff had demonstrated that a spoliation sanction was proper.

The Court noted that there was no dispute that the store’s surveillance system was within the store’s control and that footage of the area of the Plaintiff’s fall was clearly relevant. The Court also noted that it was foreseeable to the Defendant that the video footage would be discoverable if the case proceeded to suit.

According to the court, the store’s conduct in securing employee statements and conducting an internal investigation into the Plaintiff’s fall, including the decision to save a selected portion of the video, indicated that the store was aware that litigation could be imminent.

Although the store retained footage of the Plaintiff’s fall, it apparently disposed of video footage that may have shown how long the substance was present on the floor prior to the Plaintiff’s fall. The Court felt that the store’s failure to retain all but 20 minutes of video from the date of the accident prejudiced the Plaintiff’s case thereby warranting a spoliation inference with respect to the missing portions of the video.

According to the opinion, the Court also went on to find in favor of the Plaintiff on the merits of the case presented and entered an award in the Plaintiff’s favor in the amount of $44,384.00 in damages.


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

Judge Sibum of Monroe County Grants Defendant's Preliminary Objections in Auto Accident Case

In the case of Frailey v. Maranuk, PICS Case No. 11-1147 (Monroe Co., April 11, 2011, Sibum, J.), Judge Jennifer Sibum of the Monroe County Court of Common Pleas granted a Defendant’s Preliminary Objections in a automobile accident case against a Plaintiff’s claim in the Complaint that the Defendant was negligent in “otherwise failing to use reasonable care under the circumstances.”

The Court found that, under Pa. R.C.P. 1019(a), which requires a Plaintiff to state the material facts of a Complaint in a concise and summary form, that the above allegation failed for lack of specificity where the Complaint did not otherwise provide the Defendant with material facts necessary to build the defense against such a claim.


Anyone desiring a copy of this case may contact the Pennsylvania Law Weekly Instant Case Service at 1-800-276-7427, and pay a small fee, to secure a copy of this Opinion.

Tuesday, July 12, 2011

Pennsylvania Middle District Court Allows Products Liability Malfunction Theory Case to Proceed on Circumstantial Evidence

In his Opinion issued in the case of Liberty Mut. Fire Ins. Co. v. Sharp Electronics Corp., 2011 WL 2632880 (M.D.Pa. July 5, 2011, Jones, J.), United States Middle District Judge John E. Jones III allowed a shopping center fire lawsuit to proceed beyond the summary judgment stage in a products liability case where the plaintiff was relying upon circumstantial evidence to support a "malfunction theory" of liability.

Judge Jones ruled that, in addition to solely relying upon circumstantial evidence, the plaintiff's expert would also be permitted to rely upon a process of elimination to prove the existence of an alleged defect.

In this case, it was alleged that a shopping center fire originated out of an electrical defect in a cash register manufactured by the defendant.

Judge Jones ruled that, under Pennsylvania law, the malfunction theory allows a plaintiff to assert a strict product liability claim "based purely on circumstantial evidence in cases where the allegedly defective product has been destroyed or is otherwise unavailable."  In this case, the cash register was destroyed in the fire.

The plaintiffs' expert in this matter opined that the precise cause of the electrical fault in the cash register could not be identified due to the damage sustained by the cash register in the fire.  However, the expert also concluded that the fire must have been caused by an assembly defect because all of the evidence pointed to the defendant's cash register as the origin of the fire. 

Based upon this showing, the court allowed the plaintiff's case to proceed beyond the summary judgment stage.


Source: Article: "Circumstantial Evidence Enough to Argue Product Defect, Judge Says," by Shannon P. Duffy, The Legal Intelligencer (7/12/2011).

Important Products Liability Decision from Third Circuit Court of Appeals

On July 12, 2011, the U.S. Third Circuit Court of Appeals issued an important decision in the case of Covell v. Bell Sports, Inc., No. 10-3860, slip op. (3d Cir. July 12, 2011), affirming the District Court's application of the Third Restatement of Torts and admission of evidence of compliance with industry and governmental standards.

In so ruling the Third Circuit reaffirms its prediction from the case of Berrier v. Simplicity Manufacturing, Inc., 563 F.3d 38 (3d Cir. 2009) cert. denied 130 S.Ct. 553 (2009), that, if faced with the issue, the Pennsylvania Supreme Court would move to applying the Third Restatement's standards in products liability cases as opposed to standards set forth in Section 402A of the Restatement (Second) of Torts (1965). 

It therefore appears that, by virtue of this Opinion, until the Pennsylvania Supreme Court holds otherwise the Third Restatement's "reasonableness"-based form of strict liability will be utilized in federal courts applying Pennsylvania law. 

I thank Attorney C. Scott Toomey of the Radnor, Pennsylvania law firm of Littleton, Joyce, Ughetta, Park & Kelly, LLC for bringing this case to my attention.  Attorney Toomey was one of the attorneys on the prevailing defense side.

I also thank Attorney James Beck of the Drug and Device Law Blog for the heads-up on this case.  Here's a link to his blog post describing the decision: 

http://druganddevicelaw.blogspot.com/2011/07/third-circuit-reaffirms-berrier-third.html

Superior Court Converts Erie Insurance Exchange v. Conley to a Published Opinion

I have been informed that, on July 7, 2011, the Superior Court granted Erie Insurance's Motion to Convert the Pennsylvania Superior Court's Memorandum Opinion in Erie Ins. Exchange v. Conley to a Published Opinion (as per Pa. R.A.P. 3519).  I thank Attorney Suzanne Tighe of the Scranton office of Swartz Campbell for the heads-up in this regard.

In that decision, the Superior Court upheld the trial court decision of Allegheny County Court of Common Pleas Judge Alan Hertzberg denying a claimant's UIM and/or UM claim on the basis of the worker's compensation exclusivity provision where the claimant was injured by his employer during the course and scope of his employment. Here's the more detailed Tort Talk post on that case:

http://www.torttalk.com/2011/06/pennsylvania-superior-court-affirms.html
 
Now that Erie v. Conley has been converted to a published Opinion, it can be cited as valid precedent.  Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

Superior Court to Identify Authors of Unpublished Memorandum Opinions

The Pennsylvania Superior Court has announced that it will start the process of identifying the authors of its unpublished memorandum Opinions.

This move was made, in part, to allow attorneys to learn which Judge wrote the Opinion in the case argued before the court.

Generally speaking, when a Superior Court Opinion does not address a new issue, the author of that opinion can elect to issue the Opinion as a non-precedential, unpublished memorandum Opinion.  Given the thousands of cases the court addresses, it is a fairly common result that the court's Opinion is issued as a Memorandum Opinion.

Note that under Pa.R.A.P. 3519(b), a request can be made to the Superior Court by either the trial court judge or one of the attorneys involved in the matter that the Opinion be changed from a memorandum Opinion to a published Opinion.  According to the Rule, that request should be made within 14 days of the issuance of the Opinion.  The Rule also states that the decision on whether or not to grant the request is solely within the discretion of the Superior Court panel that decided the case.


Source: Article--"Superior Court to Identify Authors of Memorandums," by Ben Present in the 7/12/11 Legal Intelligencer.

Judge Carmen D. Minora of Lackawanna County Denies New Trial in Zero Verdict Case

In his June 21, 2011 Opinion and Order in the case of Anastasi v. Old Forge Borough, No. 2006 - CV - 4569 (Lacka. Co. June 21, 2011, Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas denied the Plaintiff's request for a new trial in a zero verdict case.

This case involved a trip and fall on a borough street.  The primary injury was a ruptured achilles' tendon.

At trial, the jury returned a verdict finding the Borough negligent and the Plaintiff contributorily negligent.  The jury apportioned the liability on a 50-50 basis.  The jury also found both parties' negligence to be a factual cause in causing the Plaintiff's damages.

However, the jury awarded zero ($0) damages for past, present, and future physical pain and suffering and loss of the enjoyment of life's pleasures.  The Plaintiff filed a motion for a new trial limited to damages issues.

After reviewing the applicable law, Judge Minora denied the Plaintiff's Motion and allowed the jury's verdict to stand. 

In his Opinion, Judge Minora provides a thorough analysis of the applicable standard of review for the trial court in this regard.  Anyone desiring a copy of this decision in the Anastasi v. Old Forge Borough case may contact me at dancummins@comcast.net.

Thursday, July 7, 2011

CLE AT THE BALLPARK

I am working with the Lackawanna Bar Association to plan and present a one hour CLE seminar set to take place in a luxury box at the local Triple-A minor league stadium for the Scranton/Wilkes-Barre Yankees on Friday, August 5, 2011. 

There will be a one hour CLE seminar (1 Substantive CLE Credit) followed by a Yankees game followed by a Friday night fireworks show.

During the CLE, I will be providing a Civil Litigation Update and will also present my article "Little League Tips for Big League Lawyers" in which I use little league coaching tips as tips for the practice of law.  The presentation will be replete with video clips to help keep the program moving along.

Hope to see you there.  Families are welcome.  Here's the Ad for the seminar:


CLE AT THE BALLPARK

1 SUB CLE Credit

 
“Civil Litigation Update/
Little League Tips for Big League Lawyers”

 
Friday, August 5, 2011



PNC Field
Moosic, PA
 

CLE - 5:30 p.m. – 6:30 p.m.

 
6:30 dinner and game

Post-game Fireworks


Presenter:
Daniel E. Cummins, Esq.
Foley, Cognetti, Comerford, Cimini & Cummins
Scranton, PA



$25.00 per person includes CLE credit,
dinner, beer/soda, game ticket and fireworks.

Families are welcome.


To register please contact

Cathy Egan @ (570) 969-911 or cegan@the-lba.com.

PLEASE SAVE THE DATE - AUGUST 24, 2011 PDI/NEPATLA CLE SEMINAR AT MOHEGAN SUN CASINO

I am working, along with Attorney Matt Keris of the Moosic, Pennsylvania law office of Marshall, Dennehey, Warner, Coleman & Goggin, to plan an August 24, 2011 CLE seminar at the Mohegan Sun Casino sponsored by the Pennsylvania Defense Institute and the Northeastern Pennsylvania Trial Lawyers Association.

I will also be presenting "Claims Rep Pet Peeves" at this seminar, a compilation of common complaints of insurance claims representatives along with tips for defense counsel and plaintiff's counsel alike to improve their relationship with our counterparts in the insurance industry.

The program is shaping up to be a nice event at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania where there will be door prizes, giveaways by the table vendor companies, and a networking cocktail reception at which Attorney John Aponick and Attorney Tom Foley, Jr. will be honored for their 50 years in the practice of law. 

I hope you will consider joining us.  Here's the Ad for the seminar:


CIVIL LITIGATION DEVELOPMENTS 2011
CONTINUING LEGAL EDUCATION SEMINAR

 

Honoring John J. Aponick, Jr. & Thomas J. Foley, Jr.
for their 50 Years in Practice of Law

Sponsored by

THE PENNSYLVANIA DEFENSE INSTITUTE

and

THE NORTHEAST PENNSYLVANIA TRIAL LAWYERS ASSOCIATION

MOHEGAN SUN CASINO at POCONO DOWNS

Wednesday August 24, 2010

12:30 p.m. to 4:30 p.m.

2 Substantive & 1 Ethics CLE Credits

Immediately followed by Cocktail Reception at the Mohegan Sun Breakers Lounge

12:30 – 1:00 PM Registration


1:00 – 2:00 PM “TRIAL TIPS FROM THE LEGENDS”

John J. Aponick, Jr., Esq. – Marshall, Dennehey, Warner, Coleman & Goggin

Thomas J. Foley, Jr., Esq. – Foley, McLane, Foley, McDonald & MacGregor, P.C.

Moderator: Paul T. Oven, Esq. – Dougherty, Leventhal & Price


BREAK



2:15 – 2:45 PM “SOCIAL MEDIA DISCOVERY”

Melissa A. Scartelli, Esq. – Scartelli, Distasio & Kowalski, P.C.

Alicia C. Caridi, Esq. – Marshall, Dennehey, Warner, Coleman & Goggin



2:45 – 3:15 PM “CLAIMS REP PET PEEVES”

Daniel E. Cummins, Esq. – Foley, Cognetti, Comerford, Cimini & Cummins

Erin Rowan Meyers, Esq. – Claims Manager, Catholic Health Partners


BREAK



3:30 – 4:30 PM “ETHICAL PRACTICE POINTERS FROM THE BENCH
Judge Correale F. Stevens – President Judge of Pennsylvania Superior Court
Judge Thomas Blewitt – Middle District Federal Magistrate Judge
Judge Thomas F. Burke, Jr. – President Judge of Luzerne County Court of Common Pleas
Judge Robert A. Mazzoni – Lackawanna County Court of Common Pleas Judge
Moderator: Michael A. Genello, Esq. – Murphy, Piazza & Genello, P.C.


Course Planners:

Matthew P. Keris, Esq. – Marshall, Dennehey, Warner, Coleman & Goggin

Daniel E. Cummins, Esq. – Foley, Cognetti, Comerford, Cimini & Cummins



Cost for the CLE/Happy Hour:

• Program for claim representatives/risk managers $25.00

• Program for paralegals $50.00

• CLE program for lawyers $175.00


For reservations, please print and complete the form below and return to PDI
or e-mail it to coled01@padefense.org.


Name(s)_____________________________________________


Firm/Company_________________________________________



Make checks payable to:

PENNSYLVANIA DEFENSE INSTITUTE

P.O. Box 697, Camp Hill, PA 17001-0697

For more information, contact PDI at 800-734-0737

PENNSYLVANIA DEFENSE INSTITUTE ANNUAL MEETING - JULY 21-22, 2011

43rd Pennsylvania Defense Institute Annual Conference

 

BEDFORD SPRINGS RESORT

Bedford Springs, Pennsylvania

July 21-22, 2011




GREAT SEMINAR AND MORE!


“Modern Litigation”

• Effect of Social Networking on Litigation

• E-Discovery Law Update

• Current Insurance Fraud Schemes

• Civil Practice, Auto, Products Liability and Med Mal Law Updates

and more…
 
Contact David Cole, Executive Director of the PDI for more info
























Request Sent to Superior Court to Publish Erie v. Conley Decision

I have been informed that, on June 22, 2011, Erie Insurance served a Motion to Convert the Pennsylvania Superior Court's Memorandum Opinion in Erie Ins. Exchange v. Conley to a Published Opinion (as per Pa. R.A.P. 3519).

Tort Talkers may recall that, in that decision, the Superior Court upheld the trial court decision of Allegheny County Court of Common Pleas Judge Alan Hertzberg denying a claimant's UIM and/or UM claim on the basis of the worker's compensation exclusivity provision where the claimant was injured by his employer during the course and scope of his employment.  Here's the more detailed Tort Talk post on that case:

http://www.torttalk.com/2011/06/pennsylvania-superior-court-affirms.html

Good Faith Effort Still Required for Service of Process

In the case of Yafai v. Quire, PICS Case No. 11-1130 (Monroe Co. April 18, 2011, Vican, P.J.), the Court dismissed a Plaintiff’s Complaint, with prejudice, due to the Plaintiff’s failure to establish that they made a good faith effort to serve the original Writ of Summons upon the Defendant.

In this motor vehicle accident matter arising out of an incident that occurred on April 29, 2006, the Plaintiffs filed a Writ of Summons on April 22, 2008. The Sheriff filed an Affidavit of “No Service” on the Writ of Summons on May 7, 2008. The Court noted that there were no entries in the docket indicating that the Plaintiff made any additional attempts to serve the Defendant or that they requested that the Writ of Summons be reissued.

Eventually, counsel for the Defendant entered an appearance in October of 2010 and the Plaintiff followed with the filing of a Complaint on January 14, 2011, which was more than two years after the lawsuit was commenced. The Court also noted that there was no record that the Plaintiff attempted to serve a copy of the Complaint upon the Defendant.

In dismissing the Complaint, the Court found that the Plaintiffs failed to comply with the service requirements as set forth in Pennsylvania Rules of Civil Procedure. The Court was also influenced that the Defendant’s knowledge of the suit did not result from the Plaintiffs’ efforts to effectuate service.
The Court also noted that the Plaintiffs’ course of conduct of “sitting idly by while the clocks ticks away,” stalled the legal machinery they had set in motion with the filing of the Writ of Summons back in April of 2008. The Court therefore determined that the Writ of Summons was no longer effected that tolled the statute of limitations as that document remains effective only if a Plaintiff refrains from conduct that serves to stall the legal action set in motion.

As such, the Defendant’s Preliminary Objections were sustained and the Complaint was dismissed with prejudice.


Anyone desiring a copy of the Yafai decision may contact the Pennsylvania Law Weekly Instant Case Service at 1-800-276-7427, provide the PICS Case No. noted above and pay a small fee to secure a copy.

Tuesday, July 5, 2011

More Pushback on Medicare Lien Issue With Settlements

In the case of Dailey-Console v. Barnwell, PICS Case No. 11-1115 (Monroe Co. May 18, 2011, Zulick, J.), Judge Arthur L. Zulick granted a Plaintiff’s Motion to Compel a Defendant to pay a settlement over the Defendants’ objection that Medicare lien issues were not yet resolved.

This matter arose out of a motor vehicle accident. The parties eventually agreed to settle the claims and the Plaintiffs signed a General Release. However, the Defendants did not tender payment of the settlement because they asserted that a Medicare lien existed that had to be satisfied prior to payment as the Defendants could potentially be liable for the lien.

The Plaintiffs argued that the terms of the Release executed by the parties governed the dispute and that, under the Release, they were entitled to payment of the settlement funds at once. The Court agreed.

Reviewing the Release between the parties, the court noted that, although the Release held the Defendants harmless from payments to third party as specifically stated that the Plaintiffs would be responsible for the satisfaction of any DPW lien from the settlement proceeds, the Release was silent as to any obligation by the Plaintiff to obtain clearance from Medicare.

Since the Court determined that the Release was valid as written and that the terms of the Release did not address any Medicare lien, the Medicare lien issue could not be relied upon as a roadblock to be enforcement of the Release terms, including the payment of the settlement amounts.

In so ruling, the Court pointed to the Pennsylvania Superior Court Decision in Zaleppa v. Seiwell, 9 A.3d 632 (Pa. Super. 2010), in which the Superior Court upheld an argument presented by the Scranton law firm of Lenahan & Dempsey that a defendant’s statutory obligation to reimburse Medicare was distinct from Medicare’s statutory right of reimbursement and that nothing under federal law or any provision of the Medicare Secondary Payor Act, “expressly authorizes a primary plan to assert Medicare’s right to reimbursement as a preemptive means of guarding against its own risk of liability.”

Rather, the Medicare Secondary Payor Act expressly provides that only the United States Government, and not any private entity, may file a lawsuit in which the rights to the government are asserted. For this additional reason, the Monroe County Court of Common Pleas denied the Defendant’s request to hold up the settlement in light of the Medicare issues presented in the Dailey-Console v. Barnwell case.


Anyone desiring a copy of the Dailey-Console v. Barnwell decision may contact the Pennsylvania Law Weekly Instant Case Service at 1-800-276-7427, provide the PICS Case No. noted above and pay a small fee to secure a copy.