Thursday, September 29, 2011

Powell Sentencing Set for November 4th

Here is a link to a September 29, 2011 article from Dave Janoski in the Citizen's Voice regarding the November 4, 2011 sentencing date set for Attorney Robert Powell relative to his involvement in the Luzerne County matters:

Defense Verdict After 7 Week Trial in Federal Middle District (Wilkes-Barre)

Here's a link to a September 29, 2011 article by Terri Morgan-Besecker in the Times Leader reporting on a defense verdict in a large personal injury premises liability claim (over $20 million in damages claimed) after a seven (7) week trial in the Federal Middle District Court located in Wilkes-Barre, Pennsylvania:

Monday, September 26, 2011

Ejected and Rejected: Household Exclusion Upheld in Motorcycle Accident Case

Tort Talkers may recall that I previously reported on the household exclusion case of Allstate v. Hymes, in which Judge O'Brien of the Allegheny County Court of Common Pleas ruled that the Court agreed with Allstate that the clear and unambiguous language of the household exclusion applicable to that case barred the injured party’s UIM claim. 

The claimant in that case was a motorcyclist, who was injured when he was thrown from his motorcycle during the course of an accident.  The claimant made the novel argument that provisions of the Allstate policy were not implicated and should therefore not apply because he was not "on" his motorcycle at the time he was injured; rather, the motorcyclist was allegedly not injured until he impacted 20 feet away from his motorcycle.  More details on the case and the issues presented can be viewed at this prior Tort Talk posting on the trial court's decision:

Recently, on September 13, 2011, the Pennsylvania Superior Court issued an Opinion in which they affirmed the trial court's decision.  See Allstate v. Hymes, 2011 WL 4036094 (Pa.Super. Sept. 13, 2011 Panella, Shogan, Colville, JJ.)(Opinion by Panella, J.)(Dissent by Colville, J.).

The Superior Court reviewed the law of contract/policy of insurance construction and agreed with the trial court's decision that the clear and unambiguous language of the Household Exclusion served to preclude coverage under the facts presented.

The Superior Court's Opinion in Allstate v. Hymes can be viewed here.

Friday, September 23, 2011

Former Luzerne County Judge Michael T. Conahan Sentenced to 17.5 Years in Prison

On Friday, September 23, 2011, former Luzerne County President Judge Michael T. Conahan, 59, was sentenced by Federal Middle District Court Judge Edwin M. Kosik to 210 months, or 17.5 years,  in federal prison for his part in the Luzerne County judicial scandal.  Conahan pled guilty to his crimes and received a sentence of almost 10 years less than co-Defendant, former Luzerne County Judge Mark A. Ciavarella.
Kosik additionally ordered Conahan to pay more than $874,000 in restitution, along with other fines. Judge Kosik also recommended that Conahan be sent to a prison in Delray Beach, Florida "not for convenience" but so that his family can be in close proximity
Before the sentence was handed down, Conahan sat as he read a prepared statement accepting responsibility for his actions and apologizing to all of those he harmed.  He told the court, "...the system was not corrupt.  I was corrupt."
Here's a link to a September 23, 2011 article from the Times Leader on Conahan's sentencing:

Thursday, September 22, 2011


I received the below email from LexisNexis advising me that Tort Talk ( has been nominated as a candidate for the LexisNexis Top 50 Insurance Law Blogs of 2011.

A comment period has opened and the LexisNexis representatives will give great weight to the commentary in favor of the nominees.  If you are willing and able, it is my hope that you will please consider offering commentary in favor of Tort Talk for this nomination. 

Here is the description LexisNexis gave for Tort Talk:

Tort Talk

Published by Daniel E. Cummins

This blog provides updates, trends and thoughts about Pennsylvania Civil Litigation Law. It's a nice mix of good writing, interesting topics and practical information for the insurance defense crowd.

Below is a copy of the email I recieved and information on how to offer up comments. 

Thanks for reading Tort Talk and thanks for your time and consideration with respect to this request:

Dear Daniel:

Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry. I’m pleased to notify you that your blog is one of the nominated candidates for the LexisNexis Top 50 Insurance Law Blogs of 2011, featured on the LexisNexis Insurance Law Community.

We are inviting Insurance law practitioners to comment on our list of nominees. If you’d like to request that readers support your nomination, please ask them to comment on the announcement post on our LexisNexis Insurance Law Community.

To submit a comment, visitors need to log on to their free LexisNexis Communities account. If you haven’t previously registered, you can do so on the Insurance Law Community Insurance Law Community for free. The comment box is at the very bottom of the blog nomination page. The comment period for nominations ends on October 7, 2011. Our Matthew Bender Insurance editors and our Insurance Law Advisory Board will then give strong consideration to the comments received when they review all of the nominees and select the Top 50 Insurance Law Blogs of 2011 next month.

Congratulations on your nomination, and good luck!

Very truly yours,


Ted Zwayer
Community Manager, Insurance Law Community
Legal & Professional

Wednesday, September 21, 2011

Judge Terrence Nealon of Lackawanna County Allows Slip and Fall Case to Proceed Based Upon Circumstantial Evidence of Constructive Notice

In his September 15, 2011 Opinion in the Lackawanna County slip and fall case of Filippova v. Community Bank and Trust Co., No. 2009 - Civil - 6184 (C.P. Lacka. Co. Sept. 15, 2011 Nealon, J.), Judge Terrence Nealon discussed the recurring issue of the sufficiency of circumstantial evidence of a property owner's constructive notice of the presence of a dangerous condition (i.e., water on the floor).

This matter involved a personal injury suit brought against a bank based upon a slip and fall allegedly as a result of water on the tile floor of a bank lobby.  In his Opinion, Judge Nealon provides a thorough analysis of the law of actual and constructive notice of defective conditions in premise liability slip and fall matters.

The Opinion also more specifically reviews how circumstantial proof of constructive notice can be particularly challenging with indoor falls on water since "[u]nlike produce which may change in composition or color as it remains on a floor surface for an extended period, water evaporates with the passage of time."  The Opinion goes on to analyze the decisional precedent on constructive notice, which authority dates as far back as the 1950s and 1960s.

In response to the Defendant's motion for summary judgment based upon the lack of any actual or constructive notice of any allegedly dangerous condition on the bank lobby floor in the form of melted snow or water, the Court reviewed the matter in a light most favorable to the Plaintiff as required by the standard of review.

The Court noted that there was no dispute that the Plaintiff slipped and fell in the lobby.  Although the Plaintiff admittedly could not state how long the water was located on the lobby floor, she did offer evidence of the official weather reports confirming that snow and freezing rain fell over the 24 hours leading up to the event.  Evidence was also produced by the Plaintiff that the Bank's representatives admitted that they were aware that wet floors caused customer falls and that the bank placed "Caution" signs and extra carpet mats in the lobby when needed.

Based on this evidence, the Plaintiff contended that it was a jury question to determine whether, during the winter months in Northeastern Pennsylvania, a business owner should have appreciated and remedied the risk to business invitees when wet weather outside was likely to be tracked inside and onto a tile floor, which conditions the business owner should have also known would likely cause a hazardous condition to business invitees.

In his decision, Judge Nealon emphasized that the Plaintiff noticed, after her fall, that the water on the lobby floor was allegedly spread over a wide area all around the area of her fall.  Accepting this as true under the applicable standard of review and keeping in mind the highest duty of care owed by the business owner to business invitees, Judge Nealon found that there were triable issues of fact as to whether or not the bank had constructive notice of the water on the floor under the facts presented.

The Court also found that the testimony relating to the bank's safety practices, including putting out "Caution" signs in times of bad weather along with extra carpeting, also created genuine triable issues of fact on the breach of a duty of care issue sufficient to deny the Defendant's motion for summary judgment. 

Anyone desiring a copy of Judge Nealon's Opinion in the case of Filippova v. Community Bank and Trust Company may contact me at

Check Out New AttorneyFee Website

A legal startup website called AttorneyFee launched this week. AttorneyFee is a comparison engine that enables consumers to instantly compare attorney fees from from hundreds of local attorneys at once.  The site also syncs up with attorneys’ calendars, giving consumers the ability to gauge lawyers’ availability and request appointments without making a single phone call. The service is completely free for both attorneys and consumers. The site went live on September 15th in 20 cities across America with prices from nearly 20,000 attorneys. AttorneyFee hopes to continue to expand across America.

For full disclosure purposes I note that AttorneyFee agreed to post a link to Tort Talk on its site in exchange for this posting.

Monday, September 19, 2011

Superior Court Allows Retroactive Application of Ban Against 'Error in Judgment' Defense in Medical Malpractice Cases

According to a September 19, 2011 article entitled "'Error In Judgment' Defense Ban Applies Retroactively" by Gina Passarella in The Legal Intelligencer, the Pennsylvania Superior Court recently ruled in the medical malpractice case of Passarello v. Grumbine,  2011 WL 3963587 (Pa.Super. Sept. 9, 2011 Ford Elliott, Bender, Strassburger, J.)(opinion by Bender, J.), that its earlier ruling banning medical malpractice defendants from relying on an "error in judgment" defense at trial can be applied retroactively in certain cases.

The prior decision referenced in which this ruling was first handed down was the Superior Court case of Pringle v. Rappaport, 980 A.2d 159 (Pa.Super. 2009), alloc. denied, 987 A.2d 162 (Pa. 2009).  In Pringle, the Pennsylvania Superior Court reviewed the history of the error in judgment rule and ruled that it was no longer valid in Pennsylvania due to its inconsistency with the 'standard of care' analysis utilized in medical malpractice cases.

Here's a link to a prior Tort Talk post on the Pringle v. Rappaport decision:

In the recent decision of Passarello, the Superior Court held that its prior ruling in Pringle would only apply retroactively to those cases where the final judgment of the verdict had not been entered before the 2009 filing date of the Pringle decision.  The Court noted in its opinion that the number of prior cases that may arise as a result of this retroactive application of the rule of law is also limited by the fact that parties would have been required to preserved their challenge to the error in judgment rule through an objection at a prior trial.  If that was not done, then those cases would apparently not be heard on appeal in this regard.

Here is a link to the Passarello decision online:

Source of photo: 
Image: winnond /

Friday, September 16, 2011

Judge Terrence Nealon of Lackawanna County Addresses Typical Objections to Pleadings in Auto Accident Complaint

In an Opinion handed down last Friday in the case of Freethy v. Goike, No. 2011 - CV - 530 (C.P. Lacka. Co. Sept. 9, 2011 Nealon, J), Lackawanna County Court of Common Pleas Judge Terrence Nealon addressed recurring issues that typically arise in the form of preliminary objections to a complaint filed in auto accident cases.

More specifically, in this case the Defendant objected to the Plaintiff's Complaint based on Connor, asserting that the Plaintiff had not cited the specific sections of the Vehicle Code that the Defendant had allegedly violated 

Judge Nealon primarily relied upon the decision in Com., Dept. of Transportation v. Shipley Humble Oil Company, 370 A.2d 438, 440 (Pa.Cmwlth. 1977) to overrule the preliminary objections in this regard.  That decision states that specific statute provisions need not be identified so long as the plaintiff avers facts that bring the claim within the statute.

The Defendant in the Freethy case also objected to the Plaintiff's allegations of wanton and reckless conduct, asserting that such allegations lacked factual support.  According to the Opinion, this matter involved a high speed accident in a construction zone.
Judge Nealon  pointed to  Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009), app. denied, 605 Pa. 678, 989 A.2d 914 (2010) in support of his holding that that wanton and reckless conduct are conditions of the mind that may be averred generally under Pa.R.C.P. 1019.  Accordingly, these preliminary objections were overruled as well.
Anyone desiring a copy of Judge Nealon's Opinion in Freethy v. Goike may contact me at

Update on Luzerne County Matters

Former Luzerne County Judge Mark Ciavarella has been transferred and settled into a medium security federal prison in Illinois.  Here's a link to an article on that topic by Terrie Morgan-Besecker in the September 14, 2011 Times Leader:

Former Luzerne County Judge Michael Toole is being housed in a minimum security prison in Minnesota.  Here is a link to a May of 2011 Citizen's Voice article on that topic:

Former Judge Michael Conahan is scheduled to be sentenced next Friday, September 23, 2011.  No sentencing date for former attorney Robert Powell has been scheduled yet.

Tuesday, September 13, 2011

Judge Terrence Nealon of Lackawanna County Addresses Competency of Expert Opinions and Propriety of Hypothetical Questions

It's not often that I post a write-up of a criminal court opinion but, on occasion, those opinions can contain nuggets of law useful in the civil litigation context.

For example, on pages 21-27 of Lackawanna County Judge Terrence R. Nealon's September 9, 2011 Opinion in the vile first degree murder case of Commonwealth v. Blakey, No. 2008 - Criminal - 982 (C.P. Lacka. Sept. 9, 2011, Nealon, J.), there is a discussion of the degree of certainty required for expert opinions and the evidentiary support needed to present hypothetical questions to experts at trial.

The issues centered around the prosecution's calling of a medical witness to testify on the cause of death.  That doctor noted in his testimony that his opinion was to a reasonable degree of medical certainty but, at one point, couched his opinion in terms of "most probably."

In his Opinion, Judge Nealon provides a nice recitation of the law pertaining to the certainty required of expert opinions and reconfirmed the notions that expert opinions should be reviewed in their entirety and that experts are not required to use "magic words" to render the opinion competent and admissible.

More specifically, Judge Nealon held that the fact "that an expert may have used less definitive language does not render his entire opinion speculative if at some time during his testimony he expressed his opinion with reasonable certainty.”  Vicari, 936 A.2d at 510 (quoting Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa. Super. 2004), app. denied, 584 Pa. 698, 882 A.2d 1004 (2005))."

In terms of the use of hypothetical questions to experts during trial testimony, Judge Nealon noted that the propriety of such questions remains within the discretion of the court.  He also reviewed the types of underlying facts that are acceptable within these types of questions.

Anyone desiring a copy of Judge Nealon's Opinion in the case of Commonwealth v. Blakey can contact me at

Thursday, September 8, 2011

Justice Antonin Scalia to Give Keynote Address At Centennial Celebration of Duquesne Law School

I have been requested to pass along the following invitation:

Dean Ken Gormley and Duquesne University School of Law cordially invite all members of the Luzerne County Bar Association and the Lackawanna County Bar Association to attend a keynote address by Justice Antonin Scalia, United States Supreme Court, in celebration of the 100th anniversary of Duquesne Law School's founding.

Justice Scalia's historic Centennial address will take place at the A.J. Palumbo Center on the Duquesne Campus on Saturday, September 24, 2011 at 2:00 p.m.

There is no charge for members of the Luzerne or Lackawanna County Bar Association or their guests.

Justice Scalia's keynote speech, commemorating the Law School's Centennial, will be followed by a brief tribute to Justice Scalia on the occasion of the 25th anniversary of his own appointment to the Supreme Court.

To register for this historic event in the life of the legal profession and the organized bar in Western Pennsylvania, kindly register by clicking on the below link:

Cumberland County Case in Favor of Severance of Post-Koken Claims

In the first Post-Koken decision (by Order only) on the issue of consolidation vs. severance of claims I have come across out of Cumberland County, Judge M.L. Ebert, Jr. has come down in favor of the severance of claims.

In Henry v. Amin and Westfield Ins. Co., No. 11-4881 Civil (C.P. Cumberland Sept. 1, 2011 Ebert, J.), the Plaintiff had combined a negligence claim against the tortfeasor with a breach of contract claim against the UIM carrier.  There was no bad faith claim presented.

Judge Ebert granted the tortfeasor's preliminary objections to the Complaint and Ordered that the claims be severed.  The court specifically directed the Plaintiff to file a separate Complaint for the UIM claim.

In his Order, Judge Ebert also directed that the Complaint against the tortfeasor for negligence would be tried first followed by a trial on the Complaint against the UIM carrier for UIM benefits. 

According to a review of the Post-Koken Scorecard here on, the Cumberland County decision tips the scales ever so slightly with arguably at least 16 counties across the Commonwealth in favor of severance and 15 counties in favor of consolidation.  To date, there still has not been any appellate decision handed down on this issue.

The Post-Koken Scorecard can always be accessed by scrolling down the right hand column of the blog and clicking on the date listed under the label "Post-Koken Scorecard."

Anyone desiring a copy of Judge Ebert's Order in the case of Henry v. Amin and Westfield Ins. Co. may contact me at

I thank the prevailing defense attorney, Donald L. Carmelite, Esq. of the Harrisburg Office of Marshall, Dennehey, Warner, Coleman & Goggin, for forwarding this decision to my attention.

Wednesday, September 7, 2011

Former Luzerne County Judge Mark Ciavarella Transferred to Oklahoma Federal Prison

According to a September 8, 2011 article by Dave Janoski in Scranton's Times Tribune, former Luzerne County Judge Mark Ciavarella has been moved from a Philadelphia detention center to a federal prison transfer center in Oklahoma City, Oklahoma.  The article notes that he will be transferred from that center to another federal prison at some point.  Ciavarella was sentenced last month to 28 years in prison.

Here's a link to the Times Tribune article:

Monday, September 5, 2011

Pennsylvania Superior Court Addresses Peer Review Issue

In the case of Herd Chiropractic v. State Farm, 2011 PA Super. 178 (Pa.Super. Aug. 23, 2011 Panella, Lazarus, and Ott, JJ.)(Opinion by Lazarus, J.), the Pennsylvania Superior Court affirmed a Dauphin County trial court decision that an insurance company may be still be liable for attorney’s fees under the First Party Medical Benefits Statute, 75 Pa.C.S. § 1797, even when the carrier properly invokes the peer review process.

In Herd Chiropractic v. State Farm, the medical provider provided various chiropractic services to a State Farm insured. State Farm requested a peer review to assess the reasonableness and necessity of the treatment. The peer review doctor opined that the treatment rendered by the chiropractor beyond a certain date was not reasonable and necessary. Accordingly, State Farm advised the chiropractor that it would not be paying for any additional treatment.

The chiropractor filed suit in the Court of Common Pleas of Dauphin County, Pennsylvania under Section 1797 of the MVFRL demanding payment of the unpaid chiropractic bills plus attorney’s fees and treble damages.

The matter proceeded to trial non-jury before the Honorable Bruce Bratton in July 2009. In December 2009, Judge Bratton found in favor of the chiropractor and awarded it $1,380.68 in compensatory damages for the outstanding amount of the bills, plus 1 % interest.

The trial court initially denied the chiropractor’s request for attorney’s fees and treble damages. But the chiropractor moved for reconsideration and the trial court reversed itself and ended up awarding attorney’s fees of $27,047.50 to the chiropractor despite finding that “State Farm complied in all material respects with Act 6’s requirements in conducting a peer review of [the] billings at issue.”

State Farm appealed and the Superior Court affirmed. In its Opinion, the Superior Court found no error in the trial court’s decision that State Farm had properly adhered to the peer review procedure.

However, the Superior Court also agreed with the trial court’s decision that, although the carrier adhered to proper procedure, that did not preclude an award of attorney’s fees where the court determined that the care provided was indeed medically necessary.

The Superior Court's decision can be viewed online HERE.