Wednesday, November 30, 2011

Bad Faith Discovery Decision out of Eastern District

In the recent case of Platt v. Fireman's Fund Ins. Co., 2011 WL 5598359 (E.D.Pa. Nov. 16, 2011) (mem.), Senior Judge Buckwalter of the Eastern District Federal Court of Pennsylvania ruled that claims manuals and other materials used to process plaintiff's claims may be relevant to the bad faith counts against a carrier. 

In this matter, the plaintiff was suing the defendant carrier for insurance benefits and for bad faith.  As part of her discovery efforts, the plaintiff requested the production of claims manuals.

After reviewing the law of the Federal Rules of Civil Procedure on the question presented, the court ordered the defendant  to produce any material pertaining to instructions and procedures for adjusting claims which were given to adjusters who worked on plaintiff's claim.  The Plaintiff was ordered to keep such information confidential.
I send thanks to Attorney William Mabius of the Pennsylvania Association for Justice for bringing this cse to my attention.

Here is a link to the Opinion:

Here is a link to the accompanying Order:

Tuesday, November 29, 2011

Pennsylvania Supreme Court Rules No Cause of Action for Negligent Spoliation

In its November 23, 2011 decision in the case of first impression of Pyeritz v. Commonwealth, No. 9 WAP 2009  (Pa. 2011), the Pennsylvania Supreme Court held that Pennsylvania law does not recognize a cause of action for negligent spoliation of evidence.

This case arose out of a hunting accident during which the plaintiff's decedent allegedly fell from a hunting stand that was located about 15 feet up in a tree.  When the decedent was found, a broken nylon strap that apparently held him in the tree was also retrieved.  The pieces of nylon strap were retained by the police who then later destroyed the evidence despite requests from Plaintiff's counsel that the evidence be retained.

The Plaintiff eventually filed suit against the products manufacturers and eventually settled that case for $200,000. 

The Plaintiffs then also sued the Pennsylvania State Police under a theory of negligent spoliation of evidence.  The Fayette County Court of Common Pleas entered summary judgment in favor of the Defendant Pennsylvania State Police and the Commonwealth Court affirmed.
At the Supreme Court level, the justices unanimously upheld the Commonwealth Court's ruling that a plaintiff cannot sue a third party under a negligence theory for mishandling or destroying evidence.

Justices J. Michael Eakin and Debra Todd wrote separate concurring opinions, but joined in the result.

Justice McCaffery's Majority Opinion may be viewed here.

Justice Eakin's Concurring Opinion may be viewed here.

Justice Todd's Concurring Opinion may be viewed here 

Source:  "Justices: No Cause of Action for Negligent Spoliation in Pa. by Zack Needles of the The Legal Intelligencer (Nov. 29, 2011).

Monday, November 28, 2011

Fraudulent Concealment Claim Addressed in Lackawanna County Court of Common Pleas

In an Opinion that he handed down on November 7, 2011, in the case of Ruby v. Southwest Credit Systems, L.P., No. 11 - CV - 3462  (C.P. Lack. Co. Nov. 7, 2011 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the parameters of a claim claim for fraudulent concealment.

In this case, the Plaintiff sued Southwest Credit Systems, L.P. for alleged violations of the Telephone Consumer Protection Act on the grounds that the Defendant repeatedly called his cell phone via an automatic dialing device.

The Defendant, Southwest Credit Systems, filed an Answer to the Complaint along with a Counterclaim for "Fraud-Intentional Non-Disclosure."  The Defendant admitted that it made a number of calls to a cell phone number provided to it by a debtor but that when the Defendant spoke to the Plaintiff on the phone, the Plaintiff did not advise the Defendant that he was not the person who owed money on the account.  As such, the Defendant asserted that the Plaintiff, by virtue of his failure to advise the Defendant that they had the wrong number or person, was precluded from recovering under the terms of the Telephone Consumer Protection Act.

Due to this non-disclosure by the Plaintiff, the Defendant also sought in its Counterclaim to recover its defense costs under an allegation of fraud on the part of the Plaintiff.  The Defendant asserted that the Plaintiff had intentionally misled the Defendant and that the Defendant relied upon the alleged misrepresentation by the Plaintiff.  The allegations in the pleadings were that the Plaintiff simply asked the name of the caller and hung up on the Defendant.

The case came before the court on preliminary objections in the nature of a demurrer filed by the Plaintiff to the fraud Counterclaim asserted by the Defendant.  The Plaintiff asserted that mere silence on his part can not be actionable under Pennsylvania law as fraudulent activity unless the silent party has a duty to speak.

This Opinion provides a detailed review of the law pertaining to civil fraud, fraudulent misrepresentations, and fraudulent concealment claims.

After a review of this law, the Defendant's Counterclaim was ultimately dismissed by Judge Nealon based upon his finding that, although the deliberate concealment of a material fact can constitute fraud under Pennsylvania law, mere silence cannot support a fraud claim unless the party had a duty to speak.

Since there was no statutory, contractual or common law basis to support any claim that the Plaintiff had a duty to speak in this case and advise the Defendant that they were calling the wrong person, Judge Nealon  dismissed the counterclaim for fraud in this action.

Anyone desiring a copy of this case may contact me at

Year End Review Article: AUTO LAW

Stop and Ask for Directions: Cases and Trends

Continuing Changes in Auto Law Arena in 2011 Result in Uncertainties


Daniel E. Cummins

The Pennsylvania Law Weekly

November 22, 2011

The year 2011 brought on a lot of changes in the auto law context such that litigators in this field may wish that they had a GPS to navigate through all of the nuances of the issues presented. What follows is a Mapquest of sorts outlining the important cases and trends of the past year in this area of the law.

Consolidation vs. Severance in Post-Koken Cases

Over the past year, there continued to be a growing split in the road of authority in the trial courts across the commonwealth in terms of whether post- Koken lawsuits, involving negligence claims against the third party tortfeasor and contract claims against the UIM carrier, should be allowed to proceed in a consolidated fashion or not.

Currently, there are at least 15 county courts of common pleas in favor of the consolidation of cases and at least 16 county trial courts in favor of the severance of post- Koken claims. To date, there still has not been any case that has gone up and provided appellate guidance on how to handle this issue.

On April 8, in the case of Bingham v. Poswistilo, Judge Terrence R. Nealon of the Lackawanna County Common Pleas Court issued the most thorough opinion to date on the issue of consolidation versus severance of third-party claims and UIM claims in post- Koken matters.

Concisely, Nealon held in Bingham that tort and UIM claims can be joined under Rule 2229(b) since (1) the tortfeasor and UIM insurer may be "separately" liable to the plaintiff, that is, the tortfeasor up to the liability coverage limits and the UIM carrier for any amount in excess of the liability coverage, (2) both claims arise out of the same occurrence and (3) both claims involve common questions of fact or law affecting the liabilities of the tortfeasor and UIM insurer.

After reviewing the split of authority on the issue of consolidation versus severance of claims from around the Commonwealth, as well as the split of authority on the issue in his own county of Lackawanna, Nealon came down on the side of allowing for the consolidation of such claims, largely as a promotion of judicial economy in the discovery processes.

At the preliminary objections stage of the matter, the Bingham court felt that the better approach was to leave the cases consolidated for at least discovery purposes as a matter of judicial economy and to lessen the burden and expenses on the parties and the court.

As for the evidentiary issue(s) involving insurance that may come into play when a consolidated case of a third-party claim and a UIM claim reaches trial, Nealon concluded that issue was a later matter to be determined by way of a motion for bifurcation of the trial presented to the presiding trial judge rather than a matter to be decided at the preliminary objections stage.

On June 10, Lackawanna County Judge Robert A. Mazzoni followed Nealon's decision in Bingham with his own decision in a case where I represented the UIM carrier, Richards v. McPhillips.

A detour in this case separating it from the normal route of taken by post- Koken cases on the consolidation versus severance issue was that there were punitive damages allegations asserted against the third party tortfeasor based upon the allegation that the tortfeasor was operating his vehicle under the influence of heroin and/or was otherwise impaired.

In Richards, Mazzoni ruled the case should remain consolidated for purposes of discovery as a matter of judicial economy. With regards to the punitive damages issue, the court felt that the claims against the tortfeasor and the UIM carrier were separate and distinct and, "[i]n in carefully managed trial, the trial judge can minimize and/or eliminate the potential for prejudice or confusion" against the UIM carrier with respect to the punitive damages claims asserted against the co-defendant tortfeasor."

However, as did Nealon in his prior decision, Mazzoni stated, although the case was kept consolidated for discovery purposes, he would leave the door open for the presentation of motion for bifurcation of the third party negligence claims and the UIM claims at the time of trial.

Proper Venue in Post-Koken Cases

Two years ago, the Pennsylvania Superior Court upheld the UIM carrier's forum selection clause requiring a post- Koken UIM lawsuit to be brought in the county of the insured's legal domicile at the time of the accident in the case of O'Hara v. The First Liberty Ins. Corp.

While the O'Hara decision served to answer the question of proper venue in a post- Koken case where the UIM carrier's policy contained a forum selection clause dictating where the venue should be, an open issue remained as to proper venue in post-Koken cases where there was no forum selection clause found in the UIM policy at issue.

That open question was answered this past year on July 25 when the state Superior Court handed down its opinion in the post- Koken case of Sehl v. Neff. For full disclosure purposes, I note that I wrote the amicus curiae brief for the Pennsylvania Defense Institute in this matter.

In this post- Koken venue case in which the UIM policy did not have a forum selection clause, the plaintiff filed suit in Philadelphia County even though the tortfeasor defendant did not reside and was not served in Philadelphia County and even though the accident did not occur in Philadelphia County.

The plaintiff argued that since the defendant UIM carrier could be sued in any county in Pennsylvania under the venue rule of Pa.R.C.P. 1006 and 2179 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. The Superior Court rejected this notion.

In so ruling, the Superior Court also disagreed with 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 proper venue in cases where the UIM carrier's policy did not have a forum selection clause would be proper in the county where the defendant tortfeasor could be served, where the defendant tortfeasor resided, or where the accident occurred as venue against the UIM carrier was also proper in those counties as well.

Household Exclusion Upheld, Again

On April 28, the Pennsylvania Supreme Court handed down a 3-3 plurality decision, with Justice Joan Orie Melvin having recused herself from the matter, in the household exclusion case of Geico v. Ayers, which decision served to affirm the Superior Court's ruling that an insured was barred by the exclusion from collecting stacked UIM benefits to compensate him for injuries sustained in a motor vehicle accident.

In this matter, the Geico insured had two motorcycles and two pickup trucks on separate policies.

Litigators were anxious to see how the high court would rule in Geico v. Ayers, a case the Supreme Court accepted to address whether an insurance company can deny inter-policy stacking to an insured who has all of his or her vehicles insured through the same company on separate policies but had not waived stacking.

The plaintiff, who was involved in an accident while on one of the motorcycles, was denied UIM benefits under the separate policy insuring the pickup trucks. Geico cited the household exclusion in support of the denial of benefits.

The household exclusion basically states that the insurance company that issued the policy does not have to provide coverage for accidents involving another vehicle in the insured's household; the vehicle is covered by another, different insurance company.

The plaintiff has argued that the exclusion was invalid in this matter since Geico insured all the vehicles but had required the injured party put the motorcycles on a separate policy. Stated otherwise, the injured party apparently would have kept all of the vehicles on a single policy for stacking purposes if permitted to do so.

The trial court had agreed with the injured party's argument and invalidated the exclusion. The Superior Court reversed in a memorandum decision. The Supreme Court's plurality opinion serves to affirm and uphold Superior Court's decision upholding the carrier's application of the household exclusion to deny stacked UIM benefits in this context.

UIM Worker's Compensation Exclusion Voided

In the case of Heller v. Pennsylvania League of Cities and Municipalities, a 2-1 Commonwealth Court panel previously ruled that a person receiving workers' compensation benefits may be subject to a workers' compensation exclusion and was thereby precluded from also recovering underinsured motorist benefits for a work-related car accident. This decision was recently reversed by the state Supreme Court under Heller.

The Heller case involved a police officer who had been injured in a motor vehicle accident during the course of his employment and received workers' compensation benefits.

In response to a declaratory judgment action on the issue of coverage, the majority of the Supreme Court basically ruled in Heller that, although the workers' compensation exclusion in the employer's liability policy did not violate any express provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law or the Workers' Compensation Act, the "workers' compensation exclusion in an employer-sponsored insurance policy violates public policy and is, therefore, unenforceable."

More specifically, the majority found that to enforce the exclusion would render the purchased coverage illusory. In a strong dissent, Justice Thomas Saylor cautioned against the judicial rewriting of insurance contracts and noted that the striking of clear contractual provisions should be the exception rather than the rule lest the floodgates be opened based upon public policy arguments. Saylor suggests that these types of issues should be left for the legislature or administrative agencies to struggle with.

No UIM Benefits where Workers' Compensation Applies

While a specific workers' compensation exclusion was voided in Heller where the exclusion appeared in an employer's UIM policy, a challenge against an injured party's ability to recover both UIM was upheld last year in the separate context involving an injured employee's personal automobile insurance policy.

In the case of Erie Ins. Exchange v. Conley, the Superior Court affirmed a trial court decision by Allegheny County Court of Common Pleas Judge Alan D. Hertzberg in which the trial court ruled in favor of the carrier's denial of an injured party's claim for UIM benefits where the injured party had previously received workers' compensation benefits for the same injury.

Interestingly, Nealon issued his own decision on the same issue on the same day as Hertzberg's decision — and with the same result — in the case of Petrochko v. Nationwide.

In granting the motion for summary judgment in favor of the UIM carrier, Nealon noted that the issue presented had not been previously addressed by any appellate court in Pennsylvania.

Hertzberg's decision went up the appellate latter first and was affirmed by the Superior Court. Nealon's decision in Petrochko on this issue was also recently affirmed by the Superior Court in a nonprecedential opinion in which the appellate court basically adopted Nealon's opinion.

These courts all held that where an injured party was entitled to recover workers' compensation benefits as a result of the subject accident, that injured party could not also recover UIM benefits under the provisions of the UIM policy.

More specifically, the courts relied upon Pennsylvania law and the provisions of the insurance policies at issue that limited UIM coverage to insureds who "are legally entitled to recover damages" from the underinsured tortfeasor.

Since the third party tortfeasor in this case was immune from negligence liability to the injured party who was hurt during the scope and course of his employment under an application of the exclusive remedy provision of the Workers' Compensation Act, the injured party was not legally entitled to recover compensatory damages from the underinsured tortfeasor. Accordingly, it follows that no UIM coverage could be had under these circumstances.

Both Nealon and Hertzberg did note 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.

Regular Use Exclusion Upheld and Clarified

In its decision in Williams v. Geico, the state Supreme Court affirmed the lower courts' decisions that the "regular use" exclusion contained in a personal automobile insurance policy was valid to preclude payment of underinsured motorist benefits to a police officer injured in the course of employment while operating a police vehicle.

In Williams, the injured party police officer was injured in a car accident on the job and presented a UIM claim to his own personal insurance carrier, Geico, because the Pennsylvania State Police did not carry UM/UIM coverage on its vehicles.

Geico applied the "regular use" exclusion under its policy to deny coverage. In this case, the injured party police officer was challenging that exclusion and Geico's denial.

In denying coverage, the Supreme Court relied upon the all-American adage that you can't get something for nothing. In other words, since the police officer did not pay a premium to Geico for any UIM coverage on the police car he was driving at the time of the accident, the officer could not recover UIM benefits for injuries sustained as a result of an accident involving the police vehicle under that Geico policy that separately covered his personal vehicle.

The decision by the Supreme Court obviously has a major impact on all first responders, from police officers, EMTs and firefighters, who may all be driving out there without any UIM coverage under the current status of the law. With the Pennsylvania courts being unwilling or unable to remedy this situation, it remains to be seen whether the legislature will act on this issue.

Liability of PennDOT for Highway Defects

On Jan. 19, the Commonwealth Court issued an opinion in the case of Brown v. PennDOT, in which the court addressed the issue of sovereign immunity for PennDOT in an automobile accident case in which there were allegations that PennDOT was liable for failing to install rumble strips along a curved portion of the roadway where the injured party left the road and was involved in an accident.

The case is noteworthy in that the Commonwealth Court agreed with the plaintiff's position that rumble strips, where they have been installed, must be considered part of the road.

However, in favor of PennDOT, the court also found that where rumble strips had not been installed, as was the case in this matter, the absence of rumble strips did not create a defect of the highway, and PennDOT had no duty to install them.

The Brown decision can be read in conjunction with the Commonwealth Court's recent decision in the case of Lambert v. Katz, with regards to the liability of PennDOT for conditions on highways.

In Lambert,  the Commonwealth Court held that, since the shoulder of roads are not considered portions of "roadways" lanes for travel, the condition of the shoulder of a road or the lack of a shoulder, cannot constitute a dangerous condition of highway for which PennDOT can be found liable.

Limited Tort

Two widely publicized trial court defense favorable limited tort decisions came down over the past year.

On Feb. 2, Judge Linda Wallach Miller of the Monroe County Common Pleas Court entered a summary judgment in favor of the defendants in the limited tort case of Stout v. Deleo.

The Stout case involved a plaintiff who lost control of his vehicle on an icy roadway and then was struck by another vehicle. The plaintiff alleged injuries to his shoulder, neck and back. He also noted symptoms down his right arm.

According to Miller's opinion, the plaintiff did not go to the emergency room and did not begin to treat until he visited his family doctor a few days after the accident. The treatment thereafter was minimal and the plaintiff only took over-the-counter Motrin on occasion for his symptoms. Miller also noted that the plaintiff only missed three shifts of work as a police officer but was otherwise able to complete his job duties after the accident.

The court was unimpressed with the plaintiff's claims of limitations in his ability to complete recreational activities and his claims of sleep disturbance from his ongoing pain symptoms. In the end, summary judgment was entered and the case was dismissed.

In the separate limited tort case of Phillipi v. Carey, Judge Gary P. Caruso of the Westmoreland County Common Pleas Court granted summary judgment in favor the defendant.

According to the opinion, the court found that the plaintiff's injuries were not serious where strain injuries to the neck and back were alleged along with some type of shock and nervous disorder as a result of the accident.

The court noted that, although the plaintiff offered evidence that his standing and walking abilities were affected, there is no evidence of any restrictions as a result of the injuries. Accordingly, the defendants were granted summary judgment as the court found that no reasonable minds on a jury could differ that the plaintiff had not sustained a "serious injury" as that term is defined in this context.

In the coming year, trends to watch for in the auto law context include the continuing development of the post- Koken common law, the increasing utilization of social media discovery efforts by litigators and the impact of the new Fair Share Act.

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

Friday, November 25, 2011


The Pennsylvania Defense Institute


The Northeastern Pennsylvania Trial Lawyers Association

are hosting a

Holiday Happy Hour
Wednesday November 30, 2011
5:30pm to 7:30pm


Bar Louie

Mohegan Sun at Pocono Downs
Wilkes-Barre, PA

Members of NEPATLA or PDI: Free

Non-Members/Guests: $25

(Payments can be sent to Cindy Serge, Esq. at the Perry Law Firm, Scranton)
(Also Can Pay at the Door)

(Make check payable to "Pennsylvania Defense Institute")


Wednesday, November 23, 2011

Barrick v. Holy Spirit Hospital Reversed by En Banc Panel of Superior Court

On November 23, 2011, an en banc panel of the Pennsylvania Superior Court issued a 38 paged Opinion that serves to overturn the trial court's decision to allow one party to review written communications by the opposing party to the opposing party's expert in the case of Barrick v. Holy Spirit Hospital, 1856 MDA 2009 (Pa. Super. Nov. 23, 2011)(8-1 Opinion by Mundy, J.)(Bowes, J. concurring and dissenting).

The trial court's decision was overturned even though the Plaintiff's attorney admitted in this matter that his written communications to the Plaintiff's medical expert were specifically designed to address the expert's formulation of his expert report for trial and even though the trial court judge had found, after an in camera inspection of the written communications that such communications could have "materially impacted" the expert's formulation of his expert report.

I wrote the amicus curiae briefs on behalf of the Pennsylvania Defense Institute in this matter.

For a review of the trial court's decision and the original decision of the Pennsylvania Superior Court in Barrick in favor of the disclosure of such communications, type "Barrick" in the Search Box in the upper right hand corner of the blog (

The en banc Barrick Opinion can be viewed online here.  What follows is a synopsis of the decision.

In the just released en banc decision, the Superior Court falls in line with the recent amendments to the Federal Rules of Discovery that protect from disclosure communications from attorneys to their retained experts.

In Barrick, the Pennsylvania Superior Court shifted gears from the previous decisions issued in this case and focused on the mechanism by which the defense sought out information from the Plaintiff's expert/treating physician, i.e. by way of a subpoena to the treating physician for a copy of his file.  This issue was barely addressed in the previous filings and Opinions on the question presented.

The en banc Barrick Court ruled that the proper way to secure additional, detailed information from a party's expert, above and beyond the expert's report and curriculum vitae, and other than by way of Interrogatories as permitted under the Pennsylvania Rule of Civil Procedure 4003.5(a)(1), was to show cause to the court for the need for such additional information by way of motion.

The Court held that the defendant's subpoena to the treating doctor/expert for his file was beyond the scope of Pa.R.C.P. 4003.5 in that the defendant had not first shown cause to support this request for additional information from the opposing party's expert.

The Superior Court in Barrick also found that the communications from the attorney to the expert were generally protected under the attorney work product doctrine as those communications contained mental impressions, conclusions, legal analysis etc. of the attorney which were all protected from disclosure under Pa.R.C.P. 4003.3.

In her concurring and dissenting opinion, Judge Bowes agreed with the majority's finding that "Pa.R.C.P. 4003.5, which defines the permissible methods and scope of the expert witness discovery, precludes the use of a subpoena directed to the expert to obtain documents in the expert's file."

Judge Bowes dissented from the majority's Opinion that Pa.R.C.P. 4003.3 "affords blanket work-product protection to all communications vis-a-vis the attorney and his expert.

The Barrick decision essentially returns the method of expert discovery in Pennsylvania state courts back to the way it always was before this case went up the appellate ladder.  However, it appears that there may be additional ramifications.

Under the Barrick decision, does it now follow that whenever the defense wishes to subpoena the file of a plaintiff's doctor(s), the defense will have to file a motion under Pa.R.C.P. 4003.5 to show cause in support of the request for the production of such documents?

Will that scenario serve to flood the courts with largely unnecessary discovery motions that may also require the court's to conduct in camera reviews of the innumerable files that will be produced in this process assuming the motion is granted?

Also, Barrick appears to read that the long-standing practice of attorneys requesting to review the file of the opposing party's expert after the conclusion of the direct examination of the expert at trial or at a trial video deposition, and before the cross-examination, can be objected to as not required or permissible. 

At the very least, the attorney offering up the expert as a witness may arguably remove any letters from the attorney to the expert from the expert's file before the opposing party is permitted to review the remaining documents in the file.

Perhaps the most troubling aspect of the Barrick decision is that, now that there seems to be a blanket protection against the production of attorney letters to experts, what's to stop the unscrupulous attorney from tampering with the overall goal of civil litigation--the search for the truth on the claims and defenses presented--by way of influencing, or even telling, the expert what to put in his report and testimony for trial.

What are your thoughts?  There's a "Comment" button below if you'd like to note your take on this decision.



To all the readers of Tort Talk I say thanks very much!.  Thanks also to those who have provided me with tips on important cases and those who have sent me copies of notable trial court decisions from around the Commonwealth.  Thanks also to those of you who have taken the time to vote for Tort Talk as requested on occasion.  I am grateful and appreciate your help in keeping the Tort Talk blog relevant.

Thanks and Happy Thanksgiving to you and yours,

Monday, November 21, 2011

Statute of Limitations Defense Upheld Where Wrong Defendant Identified in Complaint

In his recent decision in the case of Craig v. Liberty Mutual Fire & Automobile Ins. Co., No. 11 - CV - 3894 (C.P. Lacka. Co. Nov. 3, 2011Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a statute of limitations issue in the context of a pro se plaintiff in an automobile accident case who sued the tortfeasor's liability insurer rather than the tortfeasor himself.

According to the Opinion, after the two year statute of limitations had expired, the plaintiff sought to amend her original handwritten Complaint to change the named defendant's identity from the insurer to the insured, i.e. the defendant tortfeasor driver.

Although the tortfeasor was referenced by name in the body of the original Complaint, he was not identified as a defendant nor was he ever served with process before the statute expired.  Judge Nealon cited to numerous cases upholding the principle of law that, generally speaking, a new and distinct party can not be joined in a lawsuit after the expiration of the applicable statute of limitations.

This case is also noteworthy for its recitation, with supporting citations, of the basic principle of law that you can not sue a tortfeasor's carrier for the negligent acts committed by the tortfeasor.  As such, this case may be one to have in hand for the recurring issue in District Magistrate civil litigation matters where a pro se claimant sues the defendant's carrier as opposed to the defendant tortfeasor.

Based upon the above, the court in Craig granted the defendant's preliminary objections and dismissed the case.

Anyone desiring a copy of the court's detailed Order in Craig v. Liberty Mutual may contact me at

Important ERISA Reimbursement Decision from Third Circuit

In its recent November 16, 2011 decision in the case of U.S. Airways v. McCutchen, ___ F.3d ___,  2011 WL 5557411 (3d Cir. 2011Sloviter, Fuentes, and Vanaskie, JJ.)(Opinion by Fuentes, J.), the U.S. Court of Appeals for the Third Circuit just held that an insurer is not entitled to 100 percent reimbursement of paid medical expenses when an injured employee has recovered only a fraction of his damages from a third party. 

Commentators have noted that, with this decision, the Third Circuit became the first court in the country to place clear limits on employer-based insurers' ability to recover medical expenses from injury victims.

The plaintiff in U.S. Airways v. McCutchen was a mechanic for U.S. Airways who sustained serious injuries as result of a head-on collision that allegedly left him permanently disabled.

 U.S. Airways' health  insurer paid about $67,000 for the plaintiffs medical expenses.  The plaintiff thereafter recovered only a portion of his total alleged damages from third parties, including the driver who caused the accident.  The health insurer did not make any request for repayment during the pendency of the litigation.

Then a plaintiff's attorney's nightmare came true when the health insurer turned around and sued the injured party for all of the money the health insurer had paid out for the injured party's medical treatment, i.e., the carrier sought an ERISA reimbursement.

U.S. Airways' health insurance plan relied on contract language to argue that it was entitled to all of its money regardless of how much the plaintiff had recovered from third parties.   The health insurance plan refused a request to reduce its claim by the amount of attorney's fees and costs involved.

The Third Circuit rejected the health insurer's position under equitable principles of law and remanded the case back to the Federal District Court level for a further hearing on the appropriate amount of the reimbursement in light of this decision.

The U.S. Airways v. McCutchen decision can be viewed at this link:

I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer and Attorney Stephen Seach of the Drums, PA law firm of The Law Offices of Stephen Seach for bringing  this case to my attention.

Sunday, November 20, 2011

Latest Post-Koken Decision Out of Erie County Creates Split of Authority

Back in 2010, in the case of Jordan v. White, Gonzales, and Erie Insurance Exchange, No. 15540-Civil-2009 (Erie Co. October 28, 2010, Garhart, J.), the Erie County Court of Common Pleas denied Preliminary Objections filed by the UIM/UM carrier seeking severance.  The Court did state that it would entertain a motion to sever at the time of trial, if desired by the parties.  Thus, it appeared that Erie County fell on the side of those counties in favor of the consolidation of post-Koken negligence and UIM claims under one lawsuitj, at least through the discovery phase of a case.

Now a split of authority appears to have arisen in Erie County with Judge Shad Connelly of the Erie County Court of Common Pleas recently issuing the latest post-Koken severance versus consolidation claim out of that county in the case of Brown v. Haas and State Farm, No. 11658 - 2011 (C.P. Erie Oct. 31, 2011 Connelly, J.).

In Brown, Judge Connelly granted the preliminary objections filed by the tortfeasor defendant seeking a severance of the negligence and UIM claims on the basis that the tortfeasor would be prejudiced by the introduction of evidence of insurance in violation of Pennsylvania law.  The defense also argued that the claims did not arise out of the same "occurrence" in that one action was in negligence and the other in contract. 

Judge Connelly provides a nice review of some of the cases involved in the split of authority on this issue across the Commonwealth but does not mention the prior Erie County decision in Jordan noted above.

Judge Connelly also granted State Farm's preliminary objections seeking to have the Bad Faith claim stricken.  The court found that the Plaintiff had not pled sufficient facts to proceed on a Bad Faith claim where there were no facts pled to show that State Farm's denial of UIM benefits was frivolous or without a reasonable basis (State Farm denied UIM benefits under an argument that the Plaintiff was greater than 50% liable for the accident).

The Court noted that the Plaintiff had only pled that State Farm had denied UIM benefits after an allegedly imprudent investigations--facts that the court found were not sufficient to support a Bad Faith claim under Pennsylvania law.

The prevailing defense attorney for the tortfeasor was Joanna K. Budde, Esq. of the Erie, PA law firm of Knox, McLaughlin, Gomall & Sennett and the prevailing defense attorney for State Farm was Daniel K. Rivetti of the Pittsburgh law firm of Robb Leonard Mulvihill, LLP.  I send thanks to Attorney Mark A. Martini of Robb Leonard Mulvihill and Attorney William C. Wagner of the Erie, PA law firm of Marnen Mioduszewski Bordonaro Wagner & Sinnott, LLC for bringing this case to my attention.

Anyone desiring a copy of the decision in Brown v. Haas and State Farm may contact me at

Don't forget you can always access the Post-Koken Scorecard on the blog ( by scrolling down the right hand column and clicking on the date under the label "Post-Koken Scorecard."  That link will take you to a page where I have compiled all of the cases I have seen to date on a variety of post-Koken issues. 

Note that the list of cases on the Post-Koken Scorecard is not exhaustive and there may be other decisions out there that I have not seen--but the listing of cases is certainly thorough and could be an asset to your legal research in this area.  In fact, the Post-Koken Scorecard has been cited in Briefs filed with the courts as well as in some trial court opinions as a resource.

Thursday, November 17, 2011

Latest Trial Court Allowing Discovery of Facebook Material

Judge Richard J. Walsh of the Franklin County Court of Common Pleas is the latest Pennsylvania trial court judge to allow a defendant to view a plaintiff's Facebook page as part of discovery in a personal injury civil litigation matter.

In Largent v. Reed, No. 2009-1823 (C.P. Franklin Co. Nov. 7, 2011 Walsh, J.) Judge Walsh issued an excellently written opinion outlining the current status of the law and coming down in favor of disclosure of the information requested.

This case arose out of a motor vehicle accident.  When the defense requested access to the plaintiff's Facebook page, the plaintiff refused.  The defense filed a motion to compel.

After reviewing the pertinent law both outside and inside the Commonwealth, Judge Walsh ruled that the information was discoverable as being relevant and not privileged.  The court also rejected the plaintiff's contention that the discovery request was overbroad, would cause unreasonable embarrassment, or unreasonable annoyance.

The Court ordered the plaintiff to provide the defense with the necessary login information to enable the defense to view the plaintiff's Facebook profile for 21 days from the date of the court's Order.  The plaintiff was granted permission to change her Facebook password thereafter to prevent further access to the profile.

The prevailing defense attorneys in this case were Attorneys Donald L. Carmelite and Allison Domday from the Harriburg office of Marshall, Dennehey, Warner, Coleman & Googin.

Anyone desiring a copy of the case of Largent v. Reed may contact me at

To view other Tort Talk posts on the topic of social media civil litigation issues, click here.

Important Auto Law Legislative Update

On November 14, 2011, Senate Bill 1339 was introduced in the Pennsylvania General Assembly. Below is a link to a copy of the Bill. Under this bill, the minimum required auto liability insurance in Pennsylvania would be increased from the current $15,000/$30,000 to $30,000/$60,000:

It is my understanding that the Insurance Federation of Pennsylvania opposes the bill. The Pennsylvania Defense Institute is currently developing its position should the bill move forward in the legislative process.

I will try to keep you advised on this piece of legislation.

Former Judge Conahan Ends Up in Florida Prison

Here's a link to a November 17, 2011 article by Dave Janoski in the Citizen's Voice reporting on former Judge Conahan landing in a federal prison near Orlando, Florida:


Northeast Pennsylvania Trial Lawyers Association


The Pennsylvania Defense Institute

are hosting a

Holiday Happy Hour

Wednesday November 30, 2011
5:30pm to 7:30pm

Bar Louie

Mohegan Sun at Pocono Downs
Wilkes-Barre, PA

RSVP by November 25
 Cindy Serge, Esq.

Members of NEPATLA or PDI: Free

Non-Members/Guests: $25

Tort Talk Nominated As One of Top 25 Tort Law Blogs in the United States

Hello. It's me again asking for more votes for Tort Talk in a top legal blog category. Hope you don't mind.

Tort Talk was recently selected by LexisNexis, thanks to your votes (Thank You Very Much), as one of the Top Insurance Law Blogs in the United States in 2011.

Yesterday, LexisNexis notified me that Tort Talk ( has also been nominated as a candidate for the honor of being named one of the Top 25 Tort Law Blogs in the United States (Thanks also to those of you who have submitted a nomination vote in this category).

LexisNexis Litigation Resource Center 2011 Top 50 Tort Blogs

Below are excerpts from the email I received from LexisNexis regarding information on how to vote. I believe you can also click on the above box to get to the voting page:

"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 25 Tort Blogs of 2011, featured on the Litigation Resource Community.

We are inviting tort 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 Litigation Resource Community.

Each comment is counted as a vote toward the supported blog. 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 Litigation Resource Community for free. The comment box is at the very bottom of the blog nomination page. The comment period for nominations ends on Nov. 17, 2011. We will then post the Top 25 Tort Blogs of 2011. Thereafter, our community will vote to choose the Top Blog through a Zoomerang survey."

Yep, you read that correctly, the deadline for nominations to ensure Tort Talk ends up in the Top 25 ends on November 17, 2011, i.e. today as you are reading this emailed post. If you have a few moments to spare today and you are willing to submit a comment as a vote for Tort Talk as a Top Tort Law Blog, I would greatly appreciate it.

Thanks for your time and consideration.

Wednesday, November 16, 2011


Below is a copy of my year end review article on general civil litigation cases and trends over the past year of 2011.  This article was published in this week's Pennsylvania Law Weekly.

Over the next month or so, I will share my year end articles reviewing the important cases and trends in the Auto Law context and the Bad Faith context.

Rule Changes Alter State Civil Litigation Landscape

Daniel E. Cummins

Pennsylvania Law Weekly

November 15, 2011

In civil litigation, this has been a year of big changes and shifts in how personal injury matters are to be played out in Pennsylvania courts. A seismic shift in the state's civil litigation landscape was felt on June 28 when state Gov. Tom Corbett signed into law the Fair Share Act, drastically changing the joint and several liability of defendants in civil litigation matters.

Another important rule change for state civil litigation matters came when the state Supreme Court passed amendments Pa.R.C.P. 212.3, 212.5 and 212.6, pertaining to pre-trial conferences and settlement conferences. There have also been some major substantive changes in Pennsylvania civil litigation law.

Under the prior joint and several liability law, a defendant who was found responsible for only one percent of the liability for an injury or economic loss could be required to pay the entire 100 percent of the damages owed to the injured party.

Under the Fair Share Act, Pennsylvania now joins about 40 other states that require defendants in personal injury matters to pay only the proportion of the degree of fault assessed to them by a jury. For example, if a defendant is found 25 percent liable by a jury, that defendant is only required to pay 25 percent of the verdict, i.e., his or her "fair share" of the damages.

Note that this new law applies to causes of action that "accrue on or after the effective date," — June 28, 2011. As such, all causes of action arising before this date will still proceed under the old joint and several liability rule.

Pennsylvania's Fair Share Act also provides, with certain limited exceptions, where the defendant's liability for the damage or loss is assessed by a jury at 60 percent or more, that defendant can still be held jointly liable, i.e. responsible for the full amount of damages regardless of their percentage of fault.

Of note in the January rule changes to pretrial and settlement conferences is the new provision to Rule 212.3 that provides that "[a] court may require, pursuant to a court order, various parties to attend a pretrial conference, including an insurance or similar representative, who has authority to negotiate and settle the case."

The rule goes on to state that, if the pretrial conference is set up without any court order regarding the attendance of an insurance representative with settlement authority, such a person is still required by the terms of the rule to attend the conference in person "or be promptly available by phone."

The 3rd Circuit Applies Third Restatement of Torts to Products Cases

On July 12, the 3rd U.S. Circuit Court of Appeals issued an important decision in the products liability case of Covel v. Bell Sports Inc. In Covel, the 3rd Circuit affirmed the U.S. Eastern District Court's application of the Third Restatement of Torts and negligence concepts to claims of injuries allegedly caused by a defective product.

In so ruling the court reaffirmed its prediction from the case of Berrier v. Simplicity Manufacturing Inc., 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 continuing with the current utilization of strict liability 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 as opposed to the strict liability theory of law espoused by the Restatement (Second) of Torts.

Under the old restatement, defendants in products liability cases could be held strictly liable to parties injured by unreasonably dangerous products, even if the defendant exercised reasonable care in the manufacturing, distribution or sale of the product. Under that analysis, negligence principles (duty of care, breach of standard of care, causation) do not come into play. Usually, the plaintiff includes a separate and distinct negligence claim in the complaint against the defendants.

Under the Third Restatement , defective products are defined under standards that incorporate negligence concepts such as foreseeable risk and care into the definition of defective.

This change basically means that a risk-utility balancing test, which is a negligence concept, would be utilized in the determination of whether or not a product is defective. Under this new analysis, defendants in products liability cases will not be strictly liable for defective products regardless of fault; rather, the liability test will be less stringent, which is a change in the law that favors the defense in these types of cases.

As noted, this decision currently only applies to Pennsylvania federal court matters. It remains to be seen how the Pennsylvania Supreme Court will address the issue if faced with it in the future.

Error of Judgment Defense Banned in Medical Malpractice Cases

The Pennsylvania Superior Court recently ruled in the medical malpractice case of Passarello v. Grumbine 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.

Under the "error in judgment" defense, the courts would instruct jurors at trial that "physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake in judgment."

The prior Superior Court decision in which this defense was first found to be invalid was the Superior Court case of Pringle v. Rappaport. In that case, the Superior Court reviewed the history of the error in judgment rule and held that it was no longer valid in Pennsylvania due to its inconsistency with the "standard of care" analysis utilized in medical malpractice cases.

In the more recent decision of Passarello, the Superior Court held that its previous ruling in Pringle could be applied retroactively but only in those cases where the final judgment of the verdict had not been entered before the 2009 filing date of the Pringle decision. The Passarello court noted in its opinion that it felt that the number of prior cases that may arise as a result of this retroactive application of the rule of law would be limited and not open the floodgates to numerous new appeals.

Medicare/Medicaid Liens and Settlements

Another recent trend in civil litigation matters is the increasing concern of addressing Medicare liens asserted by the federal government against personal injury settlements and verdicts.

Late last year, in the case of Zaleppa v. Seiwell, the Superior Court upheld a plaintiff's argument that a defendant's statutory obligation to reimburse Medicare was separate and distinct from Medicare's statutory right of reimbursement and that nothing under federal law or any provision of the Medicare Secondary Payer Act "expressly authorizes a primary plan to assert Medicare's right to reimbursement as a pre-emptive means of guarding against its own risk of liability."

In other words, defendants and liability carriers in personal injury matters did not have a right to demand that certain steps be taken by a plaintiff to ensure that a Medicare lien was satisfied out of the monies paid to the plaintiff. Rather, the Medicare Secondary Payer Act expressly provides that only the U.S. government, and not any private entity, such as a tortfeasor defendant or liability insurance company, may pursue the rights of the government in this regard.

Since the issuance of the Zaleppa, a few trial court decisions have come down over the past year expanding on this issue.

In both the Cambria County case of Vincent v. Buck, and the Monroe County case of Dailey-Console v. Barnwell, the trial court judges relied upon the Zaleppa case to support a granting of a plaintiff's motion to compel a defendant to pay a settlement over the defendants' objection that Medicare lien issues were not yet resolved. In both decisions, the trial courts emphasized that there was nothing in the releases entered into between the parties that entitled the defense to insist that certain measures be taken by the plaintiff to ensure that the Medicare lien was addressed prior to the issuance of the settlement check.

Pursuit of Dept. of Public Welfare Liens Upheld

While the issues pertaining to Medicare liens and settlements were clarified in 2011, longstanding procedures regarding the recovery of Pennsylvania Department of Public Welfare Medicaid liens were upheld as valid by the 3rd Circuit U.S. Court of Appeals in June. The decision came in a 59-page opinion in Tristani v. Richman.

The 3rd Circuit noted that the U.S. Supreme Court, in the case of Arkansas Department of Health and Human Services v. Ahlborn, assumed, without deciding, that such liens, when limited to the portion of a settlement or judgment constituting reimbursement for medical costs are an implied exception to the federal law that prohibits states from imposing liens on the property of Medicaid beneficiaries.

The 3rd Circuit in the Tristani case was tasked with the job of deciding "whether these liens in fact constitute such an exception." More specifically, the issue for the court to decide was "whether state agencies responsible for administering the Medicaid program have the authority to assert such liens and, if so, whether Pennsylvania's statutory framework is consistent with the Supreme Court's decision in Ahlborn."

The ultimate decision in Tristani was that its "examination of the text, structure, history and purpose of the Social Security Act leads [the 3rd U.S. Circuit Court of Appeals] to conclude that liens limited to medical costs are not prohibited by the anti-lien and anti-recovery provisions of the act." Accordingly, court upheld Pennsylvania's longstanding practice of allowing for such Medicaid liens to be recovered by the Pennsylvania Department of Public Welfare in civil litigation matters.

Social Media Discovery

Another emerging trend in Pennsylvania personal injury matters is increasing litigation over the extent to which one party may gain access to information on an opposing party's social networking sites such as Facebook or MySpace. The trend of the initial trial court decisions in this regard has been to allow such discovery.

One of the initial, if not the first, decisions handed down on this issue came back in September 2010 when President Judge John H. Foradora of the Jefferson County Common Pleas Court ruled in McMillen v. Hummingbird Speedway Inc. that Facebook postings were discoverable and ordered the plaintiff to provide his username and password to the defense in order that the information may be accessed.

The McMillen decision was followed by Northumberland County case Zimmerman v. Weis Markets Inc. Common Pleas Court Judge Charles H. Saylor wrote, "This court agrees with the rationale of the opinion in McMillen, authorizing access for the reasons that no privilege exists in Pennsylvania for information posted in the nonpublic sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal."

A similar ruling was also handed down by the U.S. District Court for the Middle District of Pennsylvania in the case of Offenback v. L.M. Bowman Inc. In Offenback, Magistrate Judge Martin C. Carlson granted the defendant's request for access to the plaintiff's Facebook page under Fed.R.C.P. 26(b)(1). The court conducted an in camera review of the plaintiff's Facebook page as part of the court's analysis and found that the information contained on the site should be indeed discoverable as relevant to an evaluation of the plaintiff's damages claims.

One contrary trial court decision in this area was handed down in Bucks County case Piccolo v. Paterson. In a one paragraph order, the court denied a defendant's motion to compel the plaintiff to allow the defense access to the plaintiff's Facebook page.

At issue in the Piccolo case was a scarring injury. Prior to the defendant's request for access to the plaintiff's Facebook page, the plaintiff had already provided the defense with a great number of photographs pertaining to the scarring injury claim. The court apparently found that the defendant's desire to access even more photos of the plaintiff on her Facebook page was cumulative and unnecessary.

Authentication of Text Messages At Trial

Sometimes, updates to the practice of civil litigation law can come from criminal court decisions. Such was the case with the recent criminal court appellate decision, Commonwealth v. Koch, described as a case of first impression. In Koch, the Superior Court ruled that text messages were not admissible in court unless they were properly authenticated.

In Koch, a criminal defendant's cellphone had been seized by the police during a search warrant. The text messages discovered on the phone were transcribed, offered at trial by the prosecutor and allowed into evidence by the trial court judge over the defendant's objections.

On appeal, the Superior Court found that the text messages were not properly authenticated and, therefore, should not have been admitted. The criminal conviction was overturned.

In the decision, the court noted that "electronic writings typically show their source, so they can be authenticated by contents in the same way a communication by postal mail can be authenticated."

Pointing to the rules of evidence on the proper authentication of evidence at trial, Pa.R.E. 901-902, the Superior Court held that there must at least be "[c]ircumstantial evidence, which tends to corroborate the identity of the sender," of the text message before that evidence may be considered authenticated and admitted.

This emerging authentication issue could obviously also come into play in civil litigation matters with respect to authenticating text messages offered into evidence. Such authentication will also likely be required for Twitter postings and e-mails as well as evidence in the form of the commentary and photos found on social media sites such as Facebook, MySpace, LinkedIn and Google Plus, to name a few.

The Future of Expert Discovery

Revisions to Rule 26 of the Federal Rules of Civil Procedure took effect on Dec. 1, 2010, resulting in a significant change in the long-standing Federal Court procedure regarding the discovery of expert witness reports.

Relying upon the work-product doctrine, Rule 26 now no longer requires full discovery of draft expert reports or broad disclosure of any communications between trial counsel and the expert, all of which was previously required since the rule's last revision back in 1993. Still permitted is the full discovery of the expert's final opinion and of the facts or data used to support the opinions.

Both the plaintiff's bar and the defense bar are keeping an eye on a highly anticipated decision by the Superior Court on the same issue in the case of Barrick v. Holy Spirit Hospital. That case revolves around the all-important issue of whether one party is entitled to discovery of correspondence written by opposing counsel to the opposing party's expert for trial.

The trial court originally ruled that such communications by the plaintiff's attorney to the plaintiff's expert were discoverable. On appeal, the original Superior Court panel affirmed.

Thereafter, the Superior Court granted the plaintiff's motion for reargument before an en banc panel and, in doing so, withdrew the Superior Court's affirming decision.

On April 5, the en banc panel heard reargument of the Barrick case and the case has remained under advisement ever since. For full disclosure purposes, I note that I assisted the defense in this matter by way of an amicus brief sponsored by the Pennsylvania Defense Institute.

The court's decision in Barrick will serve clarify the interplay between Pa.R.C.P. 4003.3 and 4003.5 — the balance between the protections of the attorney work product doctrine and the discoverability of the bases for an expert's opinion could have a major impact in how litigating attorneys communicate with their respective experts during the course of a lawsuit.

It is also noted that, earlier this year, the Pennsylvania Supreme Court Civil Procedural Rules Committee published a draft of its Proposed Recommendation No. 248, seeking to amend Pa.R.C.P. 4003.5, which pertains to expert discovery.

This proposed recommendation intends to bring state court practice more in line with new federal practice noted above. Significantly, it expressly prohibits the discovery of any kind of communications between any attorney and his or her expert.

It remains to be seen whether this issue of expert discovery will be resolved by way of the Barrick decision or a revision to the Rules of Civil Procedure or a combination of both. •

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

Pennsylvania Supreme Court to Address Delay Damages Issue From Post-Koken Case

Tort Talkers may recall that I previously reported on the Pennsylvania Superior Court decision in the post-Koken case of Marlette v. State Farm Mut. Automobile Ins. Co. and Jordan in which the issue was whether the delay damages calculation should be based upon the higher jury verdict or the lower figure that resulted after the verdict was molded down by the court to the amount of the available UIM limits.  That post can be viewed here.

In this case, the jury entered an award of $550,000 in favor of the injured party plaintiff and $150,000 in favor of the plaintiff's spouse on the loss of consortium claim.  In a post-verdict ruling the trial court molded the award downward to the available UIM policy limits of $250,000.

The Allegheny County trial court had also molded the verdict downward even further to $233,306.98, reflecting a credit due to State Farm by virtue of a previous payment made by the carrier in the amount of $16,693.02.

The plaintiffs requested delay damages on the $550,000 portion of the jury's verdict (the parties agreed that delay damages are not permitted with respect to loss of consortium claims under Pennsylvania law).  State Farm argued that the plaintiffs were not entitled to any delay damages because State Farm was only responsible to pay up to the UIM limits under the provision of the policy.

The trial court disagreed with both parties and awarded delay damages on the reduced figure of $233,30698.  The delay damages that were awarded did push the final verdict amount up to a number that was above the $250,000 UIM policy limits number.

On appeal, the Pennsylvania Superior Court held that the delay damages should have been calculated on the jury's verdict amount, i.e., $550,000.  The appellate court also ruled that the Plaintiffs could recover monies from the carrier over and above the UIM policy limits number.

The Superior Court's decision in Marlette v. State Farm and Jordan may be viewed online by clicking this link:

Now, under an Order dated November 7, 2011, the Pennsylvania Supreme Court has agreed to accept the appeal and will decide this issue after oral argument which still remains to be scheduled.  I will keep an eye out on this important case and will post any updates I come across.

Source:  "Justices Take Up Case on Molded Verdict Delay Damages" by Gina Passarella Pennsylvania Law Weekly (34 PLW 1043)(Nov. 15, 2011).

Tuesday, November 15, 2011

Third Circuit Court of Appeals Adopts "Later Served" Rule for Federal Removal Statute

The Third Circuit Court of Appeals recently address the issue of the proper timing of the filing of a Notice of Removal of a case from state court to federal court in a multi-defendant lawsuit.

Under Section 1446(a) of the U.S. Code, "a defendant or defendants" seeking removal to federal court are required to file a notice of removal.

Section 1446(b) of the Code requires that the notice of removal to be filed within 30 days "after receipt by the defendant" of the plaintiff's initial pleading or summons.

In cases involving multiple defendants, the question arises in terms of when does the time to remove the case to federal court expire.  The Third Circuit Court of Appeals recently answered that question by adopting what is known as the "later served" rule in the case of Delalla v. Hanover Insurance, ___ F.3d ___ (3d Cir. Oct. 12, 2011 Slovitzer, Nygaard, Smith, J.)(Opinion by Smith, J.).

According to the opinion in Delalla four federal courts of appeals across the nation have adopted a "later-served rule," which construes §1446(b) to give each and every defendant 30 days from the date that particular defendant was served to file a notice of removal.

The Fourth and Fifth Circuits, meanwhile, have adopted a "first-served rule" which requires the notice to be filed within 30 days of the date on which the first defendant was served.

In this case, the Third Circuit Court of Appeals adopted the "later-served rule" as the more reasonable and just approach to the issue.

Anyone desiring to review this opinion may find it online here:

Source:  "Case Digest" Pennsylvania Law Weekly (11/8/11).

FBI Searches Files in Lackawanna County Court of Common Pleas

Here's a link to a November 15, 2011 article by Borys Krawczeniuk in the Citizen's Voice regarding the FBI searching the files in the Lackawanna County Court Administrator's Office.  According to the article, the search warrant was issued as part of an investigation into a program that provides lawyers for children in family court cases.

Here's the link to the article:

Conahan and Toole No Longer Have Law Licenses

Here is a link to a November 15, 2011 article in the Times Leader confirming that former Judge Michael Toole's law license has been suspended and that former Judge Michael Conahan relinquished his law license.  Former Judge Mark Ciavarella is officially listed as retired:

Meanwhile other local reports indicate that former Judge Conahan has been moved from the Philadelphia Detention Center where he has been housed since his sentencing.  According to the Federal Bureau of Prison, Conahan is listed as "in transit."  It is anticipated that future news reports will reveal where he has been transferred to in order to serve out his sentence.

Monday, November 14, 2011


I am pleased to report that Tort Talk ( has been selected by LexisNexis as one of the 2011 Top Blogs for Insurance Law across the entire United States!

Selections were made by the LexisNexis Insurance Law Community staff in consultation with the Insurance Law Community Advisory Board members.

LexisNexis had this to write about the blogs selected:  "The Top Blogs contain some of the best writing out there on insurance law. They contain a wealth of information for the insurance law community with timely news items, practical information, expert analysis, practice tips, frequent postings, and helpful links to other sites. These blogsites demonstrate how bloggers can impact the world of insurance law. You can read the full announcement and list of honorees here."

I say THANK YOU VERY MUCH!! to all who voted for Tort Talk.  I appreciate it very much.

Sunday, November 13, 2011

Superior Court Again Rules No UIM Benefits Where Worker's Comp Applies

Judge Terrence Nealon's decision in the case of Petrochko v. Nationwide, No. 07 CV 7113 (C.P. Lacka. Co. Aug. 27, 2010, Nealon, J.), has been affirmed by the Superior Court.

In Petrochko, Judge Nealon ruled in favor of the UIM carrier with a finding of no coverage for UIM benefits under a personal automobile insurance policy where the injured party had been injured on the job and received worker's compensation benefits.  The decision was affirmed in a non-precedential decision issued by the Pennsylvania Superior Court under docket number 1605 MDA 2010 (Pa. Super. Nov. 10, 2011 Panella, Lazarus, and Ott, JJ.).

The Tort Talk blog post on Judge Nealon's decision can be read here.

The Superior Court's decision in Petrochko basically adopted and cited Judge Nealon's well-reasoned trial court Opinion.  The appellate court's opinion is non-precedential and does not offer up any rationale by the Superior Court and so is probably not one that would be of any benefit to readers--but if you wish to receive a copy please let me know at

Note that the same issue exact was addressed in a published Opinion by the Pennsylvania Superior Court in the case of Erie Ins. Exch. v. Conley, ___ A.3d ___,  2011 WL 3129388 (Pa. Super. 2011 Panella, Shogan, and Colville, JJ.), in which the Superior Court affirmed a decision by Judge Hertzberg of the Allegheny County Court of Common Pleas.  That Opinion can be read here.

The basic rationale of all of these decisions the respective Opinions was aptly set forth 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 also 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.


Liens & Subrogation CLE
Hilton Scranton

9:00 am - 1:30 pm

3 Substantive & 1 Ethics CLE Credit

Topics to be discussed include Special Needs Trust, Federal Liens, Medicare Liens, DPW Legislation, Workers' Compensation Liens, and more.

Faculty: Malcolm L. MacGregor, Esq.; Neil T. O'Donnell, Esq.; Scott C. Cooper, Esq.; Dennis C. McAndrews, Esq.; Roger Roggenbaum, CSSC; Thomas Patrick Cummings, Esq; Donald C. Ligorio, Esq.

(I am not speaking at this seminar--just helping to spread the word via this post).


Hilton Scranton
100 Adams Avenue
Scranton, PA 18503

Click here to register online or call 215.546-6451.
The same day, November 30, 2011, the NEPATLA and the PDI are teaming up to sponsor the
5:30 pm to 7:30 pm
Bar Louie
Mohegan Sun Casino
Wilkes-Barre, PA

November 30, 2011

Friday, November 11, 2011

Civil Litigation/Auto Law Update 2011 CLE Written Materials

I presented a continuing legal education program at yesterday's Luzerne County (Pennsylvania) Bench Bar Conference on the topic of Civil Litigation Update 2011. 

Anyone desiring a free copy of the written materials (66 pages) I drafted for this program, as well as for the Auto Law Update program, may contact me at

Any insurance carriers who may wish me to present an hour-long powerpoint Update seminar to their claims professionals may contact me at the same email address.

Thursday, November 10, 2011

Texting While Driving Banned in Pennsylvania

On Wednesday, Governor Corbett signed into law a prohibition against texting while driving.  The new law, which does not go into effect until four months from now, bans sending, reading, or writing a text-based message from a wireless phone, personal digital assistant, smart phone, portable or mobile computer, or other similar devices

The law further provides that texting while driving will be a primary offense in Pennsylvania, meaning a police officer can pull a driver over for this reason alone.  The offense will carry a potential $50 fine.

According to an Associated Press article on the topic, prior to the passage of this law, provisions pertaining to bans on the use of cellphones by drivers without hands-free devices were taken out.  The article goes on to note that those cellphone ban provisions may be addressed in later legislation.

Source of photo:

Wednesday, November 9, 2011

Eastern District Federal Court Addresses Statute of Limitations For UM Claims

In the recent case of Liberty Mutual Fire Ins. Co. v. Weisbaum, No. 10-3869 (E.D. Pa. 2011 Schiller, J.), Judge Berle M. Schiller handed down a decision on the rarely seen statute of limitations issue with respect to an uninsured (UM) motorists benefits claim.

In this matter, Liberty Mutual filed a declaratory judgment action seeking a declaration that the claimant was not entitled to UM coverage because the claimant failed to bring his claim before the statute of limitations expired.

The court reaffirmed principle that "[u]nder Pennsylvania law, a UM claim is subject to the four-year statute of limitations for contract claims."  In this regard, the court cited State Farm Mut. Auto. Ins. Co. v. Rosenthal, 484 F.3d 251 (3d Cir. 2007), Boyle v. State Farm Mut. Auto. Ins. Co., 456 A.2d 156, 160-162 (Pa. Super. 1983), and 42 Pa.C.S.A. Section 5525(a)(8).

The court in Liberty Mutual v. Weisbaum also stated that "[a] UM claim accrues when the insured:  (1) is involved in a motor vehicle accident, (2) is injured in the accident, and (3) knows or reasonably should have known of the uninsured status of the owner or operator of the other vehicle involved in the accident." (Citing Clark v. State Farm Mut. Auto. Ins. Co., 599 A.2d 1001, 1005 (Pa. Super.  1991).

In his Opinion, Judge Schiller noted that  the statute of limitations can be officially tolled by the filing of a Petition to Compel Arbitration (citing Boyle, 456 A.2d 162-163).

Interestingly, Judge Schiller stated that the appointment of arbitrators by the parties was not sufficient to automatically toll the statute of limitations (citing with "see" signal Walker v. Providence Ins. Co., Civ. A. No. 97-7455, 1998 WL 195652, at *3 (E.D. Pa. March 31, 1998)(holding that appointment of arbitrator did not toll statute of limitations on underinsured motorist claim)[other citation omitted].

The court separately found that the statute could be tolled where the carrier "fraudulently or deceptively lulled" the insured into inaction on the claim presented.  No such fraud or deception was found to exist in this matter.  Rather, the court found that the facts presented established that the carrier actively sought information from the insured on the UM claim presented and received little cooperation in response.

In ruling in favor of the carrier on the statute of limitations argument in this matter, the court also rejected the claimant's argument of the tolling of the statute of limitations based upon an implied contract to arbitrate as there was no authority to support such an argument.

Anyone desiring a copy of this decision in Liberty Mutual v. Weisbaum, may contact me at

Source:  "Case Digests."  Pennsylvania Law Weekly

Judge Mazzoni and Judge Geroulo Retained in Lackawanna County

Voters in Lackawanna County voted to retain Judge Robert A. Mazzoni, 63, and Judge Vito P. Geroulo, 64, on the bench.

The mandatory retirement age for Common Pleas judges is 70. That means neither Judge Geroulo nor Judge Mazzoni will be able to serve out a 10-year term as a full-time judge.  They can take senior status and continue working part-time after the age of 70.

Photo: Lackawanna County Courthouse
Source of Photo:

A NEW ERA DAWNS: Luzerne County Has Six New Judges (And a New D.A.)

Here is a link to an article in today's Times Leader by Sheena Delazio outlining the Luzerne County Judicial elections yesterday:

According to the unofficial results, the six new Luzerne County Judges, in order of top vote-getters, are:

Jennifer Rogers

Fred Peirantoni

Joseph Sklarosky, Jr.

Michael Vough

Dick Hughes

Lesa Gelb

According to the article, 'Hughes, 50, of Mountain Top, and Vough, 47, of West Pittston, are both longtime assistant district attorneys with their own private practices in which they concentrate on civil law.'

The article states that "Sklarosky, 42, of Mountain Top, has worked as a part-time assistant public defender and also has his own private practice."

The article additionally notes that 'Pierantoni, 53, of Dupont, has served for the past 20 years as a magisterial district judge in Pittston, while Gelb, 50, and Rogers, 44, have primarily worked as civil litigators, focusing on complex cases."

It is also noted that, in a stunning upset, incumbent District Attorney Jackie Carroll Musto, who had over 20 years experience as a prosecutor, apparently became another victim of the Luzerne County judicial scandal.   Stephanie Salavantis, who is only two years out of law school and who has never prosecuted a criminal case, prevailed in the election for District Attorney.

Photo:  Luzerne County Courthouse
Source of Photo:

Lehigh County Court of Common Pleas Orders Bifurcation of Post-Koken Case at Trial Stage

In the Lehigh County Court of Common Pleas post-Koken case of Purta v. Blower and Erie Ins. Exch., No. 2010-C-2515 (C.P. Lehigh Co. Sept. 20, 2011 Reibman, J.), the Honorable Edward D. Reibman addressed the seemingly novel issue presented by a Motion to Severance filed by the UIM carrier Defendant to bifurcate jointly filed third party and underinsured motorist (UIM) claims into separate trials.

In a detailed Order, Judge Reibman granted the UIM carrier's Motion for Severance and ordered that the case proceed to trial with only the Plaintiffs and Defendant tortfeasor being involved in the first trial.

Judge Reibman held that "pursuant to the criteria set forth in Pa.R.C.P. 213(b), and so as to avoid confusion of the threshold issues of alleged liability and damages caused by the Defendant Blower as the tortfeasor, the claims against Erie will be severed and addressed in a subsequent trial if necessary."

I have also been informed that a review of the docket indicates that the jury did not award any damages to the plaintiff in the trial against the third party tortfeasor.  Accordingly, the UIM claim is moot unless the verdict set aside or reversed on appeal.

Thus, it appears that another argument in favor of the bifurcation of post-Koken claims at trial is one of judicial economy in that the bifurcation of the claims, with the third party negligence case going first, not only streamlines that trial, but may also render a second trial on the UIM claim moot depending on the results of the first trial.

Anyone desiring a copy of this detailed Order in the case of Purta v. Blower and Erie Ins. may contact me at

I send thanks to Scott Cooper, Esq. of the Harrisburg law firm of Schmidt Kramer for brining this case to my attention.

Tuesday, November 8, 2011

New Jury Verdict Roundup Launched on Blog

I have been advised of a New Jury Verdict Roundup Launched on Blog.  This FREE weekly feature will cover the latest news in personal injury awards.  Click the link below for more information, including how to have any verdicts, plaintiff or defense, you generate listed in this news source:

Clarification on Recurring Issue of Challenges to Late Joinder of Additional Defendants

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently issued an Opinion on a recurring issue in the case of  Chelland v. Siegfried v. Solomon, No. 2010 - CV - 6113 (C.P. Lacka. Co. Nov. 1, 2011 Nealon, J.), which involved an additional defendant's challenge to an original defendant's untimely joinder of the additional defendant.

The additional defendant primarily argued that the defendant had not provided reasonable justification or excuse for its delay of several months in seeking to join the additional defendant.

Judge Nealon pointed out that Pa.R.C.P. 2253 was amended in 2005 and now only permits the plaintiff to raise the "reasonable justification for delay" objection, whereas all parties (plaintiff and additional defendants) may still object on the ground of prejudice.

Thus, it appears that an assertion by an additional defendant that there was no "reasonable justification" to explain away the original defendant's late joinder is no longer valid.  Rather, the additional defendant must show the more difficult element of prejudice in order to prevail on a preliminary objection to a late joinder.

Anyone desiring a copy of Judge Nealon's detailed Opinion on this issue in the case of Chelland v. Siegfried v. Solomon may contact me at