Friday, December 30, 2011






(570) 346-0745

Thursday, December 29, 2011

Judge Van Jura of Luzerne County Addresses No Duty Rule in Baseball Injury Case

In his recent decision in the case of DeAngelo v. Little League International, No. 6296 of 2008 (C.P. Luz. Dec. 16, 2011 Van Jura, J.), Judge Joseph Van Jura of the Luzerne County Court of Common Pleas addressed the “no duty” rule in a case involving an assistant baseball coach being struck in the face by an overthrown baseball during a post-game practice.

According to the opinion, a little league baseball game was stopped, by virtue of the “10 run rule” (or “mercy rule”), which dictates that, at the end of any inning after the 4th inning, if one team has a lead of 10 runs or more, the manager of the losing team must concede victory to the opponent and the game is then ended.

After the game was completed, the teams apparently agreed to continue playing for additional practice purposes. During the post-game practicing, the Plaintiff was injured when he was standing near first base and a short stop over threw the first basement and struck the Plaintiff on the right side of his head, causing serious injuries, including right eye blindness.

After the case proceeded to discovery, the Defendant, Little League Baseball Incorporated and Hazle Township Little League filed a Motion for Summary Judgment under the “no duty” rule. According to the opinion, the Defendants asserted that the “no duty” rule applied under the circumstances.

Judge Van Jura conducted a detailed analysis of the “no duty” rule which serves to “eliminate any duty of care to warn, protect, or ensure against risks which are ‘common, frequent, expected’ and ‘inherent’ in an activity voluntarily undertaken by a prospective Plaintiff.” [citations omitted]. The court noted that, if it is determined that the no-duty rule is applicable to a negligence claim, the Plaintiff is unable to proceed.

Judge Van Jura stated that it while it appeared that the no-duty rule would apply if this occurrence took place during the actual game, the issue before the court was “whether the no-duty rule would be properly applicable to the two independently simultaneously occurring “practices” on the same field, by the two different teams.”

Judge Van Jura stated that Pennsylvania law has made it clear that the injury need not occur during the actual conduct of a game for recovery to be barred by the “no duty rule.”

After reviewing the law in greater detail, including the number of decisions arising out of baseball games, professional and otherwise, the court concluded that the “no duty” rule barred the Plaintiff’s recovery under the facts presented. Accordingly, the court granted the Defendants’ Motion for Summary Judgment and dismissed the Plaintiff’s Complaint.

Anyone desiring a copy of this interesting opinion by Judge Van Jura in the DeAngelo case may contact me at

Tuesday, December 27, 2011

Petition for Allowance of an Appeal to the Pennsylvania Supreme Court Filed in Barrick v. Holy Spirit Case

The Defendant has filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court in the expert discovery case of Barrick v. Holy Spirit Hospital.

Tort Talkers may recall that, on November 23, 2011, an en banc panel of the Pennsylvania Superior Court issued an Opinion in this case that served to provide blanket protection to litigating attorneys against having to disclose the content of the letters and emails they send to their trial experts on how the expert should write his report.

In the Petition for Allowance of Appeal, the Defendant challenged the Pennsylvania Superior Court's finding that the Plaintiff had not waived the issue presented even though the Plaintiff had offered up a voluntary, executed waiver of any objection to the subpoena originally sent to the Plaintiff's doctor for his file contents.  The Court found that the Plaintiff's claim of privilege was preserved for appeal regardless.

The Defendant also appealed in Barrick on the basis that the "Superior Court's interpretation of Pa.R.C.P. No. 4003.3 improperly provides absolute work product protection to all communications between a party's counsel and their trial expert."

I will report on whether or not this appeal is accepted for review by the Pennsylvania Supreme Court as soon as I hear any news in that regard.

The 2011 Tort Talk Top 10


As another year comes to an end, here's a look back at some of the top cases and trends of the year in the 2011 TORT TALK TOP 10.  Each selection is linked to the post(s) from over the past year where you can read more info on the selected Top 10 topic:

10.  Changes to the Federal Removal Statute

This one is recent. President Obama recently signed into law the Federal Courts Jurisdiction and Venue Clarification Act of 2011.  As part of the Act, certain changes and clarifications were made with regards to the procedures for the removal of state court actions to federal court.  Just when you think you have the old procedures figured out, they go and change things on you.  Here is a link to the Tort Talk post that refers you to an excellent post by the Drug and Device Law Blog providing a nice summary of the changes along with a link to the legislation.

9.  Recovery of Medicaid Liens Upheld

In 2011, the long-standing procedures regarding the recovery of Pennsylvania Department of Public Welfare Medicaid liens were upheld as valid by the United States Court of Appeals for the Third Circuit on June 29, 2011 in its fifty-nine (59) paged decision in the case of Tristani v. Richman, 652 F.3d 360 (3rd Cir. 2011 Hardiman, J.).  To view more information on this topic, click here and here.

8.  Settlements and Medicare Liens

In both the Cambria County case of Vincent v. Buck, No. 2011-CV-456 (Cambria Co., April 4, 2011, Swope, S.J.), and the Monroe County case of Dailey-Console v. Barnwell, PICS Case No. 11-1115 (Monroe Co. May 18, 2011, Zulick, J.), 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.  Both cases rely upon last year's Superior Court decision in the case of Zaleppa v. Seiwell, 9 A.3d 632 (Pa. Super. 2010).  Seems like both plaintiff and defense counsel are happy with these decisions.  For more, read thisthis, and this.

7.  Covell v. Bell Sports Inc.

On July 12, 2011, the U.S. Third Circuit Court of Appeals issued an important decision in the products liability case of Covell v. Bell Sports, Inc., 651 F.3d 357 (3d Cir. 2011 Aldisert, J.).  In Covell, the Third Circuit affirmed the Eastern District Court's application of the Third Restatement of Torts and negligence concepts to claims of injuries allegedly caused by a defective product.  Better get to the library and brush up on the Third Restatement.  To read more on Covell, go to this link.

6.  Williams v. GEICO

In its decision in Williams v. GEICO, 2011 WL 4953433 (Pa. Oct. 19, 2011 Orie Melvin, J.), the Pennsylvania 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 (“UIM”) benefits to a police officer injured in the course of employment while operating a police vehicle.  This decision basically leaves first responders without UIM coverage in certain, common situations.  Might see some legislation on this with respect to first responders in the future.  To read more on this decision, click here.

5.  GEICO v. Ayers

On April 28, 2011, the Pennsylvania Supreme Court handed down a 3-3 plurality decision, with Justice Orie Melvin having recused herself from the matter, in the household exclusion case of GEICO v. Ayers, 18 A.3d 1093 (Pa. 2011) 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 under a case involving a plaintiff who had insured multiple vehicles through one insurance company but on separate policies.  For more on this decision, click here.

4.  Sehl v. Neff

On July 25, 2011, the Pennsylvania Superior Court handed down its opinion in the Post-Koken case of Sehl v. Neff, 26 A.3d 1130 (Pa. Super. 2011), in which the court found proper venue in cases where the UIM carrier’s policy did not have a forum selection clause would be 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.  In other words, the court rejected the plaintiff's contention that, since the UIM carrier defendant conducted business in all of the counties of the Commonwealth, venue of this action was likewise proper in any county of the Commonwealth.  This opinion therefore effectively prevents rampant and widespread forum shopping with respect to Post-Koken cases.  Click here to read more on this case.

3.  Social Media Discovery

A slew of trial court opinions continue to come down on the issue of Social Media Discovery, particularly on the topic of whether personal injury defendants are entitled to view the private pages of a plaintiff's Facebook pages.  A split of authority has developed and, hopefully, an appellate court will be given an opportunity in 2012 to address the issue of whether such disclosures should be allowed under the liberal Rules of Civil Procedure pertaining to discovery.  To review Social Media Discovery posts from over the past year, scroll through the listing of related blog posts at this link here.

2.  Barrick v. Holy Spirit Hospital

On November 23, 2011, an en banc panel of the Pennsylvania Superior Court issued an Opinion that served to provide blanket protection to litigating attorneys against having to disclose the content of the letters and emails they send to their trial experts on how the expert should write his report.  And that's a good thing?!  A Petition for Allowance of an Appeal to the Pennsylvania Supreme Court has been filed.  To read more on this case, click here, here, here, here, and here

1.  The Fair Share Act

The biggest event in the civil litigation arena over the past year occurred when the Pennsylvania Legislature passed the Fair Share Act on June28, 2011 (remember that date--the Act only applies to causes of action accruing on that date and forward).  Now all really is fair in love and war.  Click here to read more.

I am sure I left out some cases or trends that should have been included and perhaps included some that you may not think worthy.  In any event, I hope you enjoy this list and you are left with a sense of some of the more important topics of civil litigation from 2011.

A DELVE INTO 2012 -- Article on Anticipated Changes in Civil Litigation in 2012 and Beyond

The following article of mine, which predicts expected changes in civil litigation law in 2012, appeared last week in the December 20, 2011 edition of the Pennsylvania Law Weekly.

A Year of Change for Civil Litigation

Wave of Legislation, Case Law Is Poised to Alter the Environment for Tort Cases in 2012


Daniel E. Cummins

Pennsylvania Law Weekly

December 20, 2011

My past few columns have provided year-end reviews on the topics of general civil litigation, automobile accident law and bad-faith litigation. This week, I venture to look into the future to give an overview of anticipated changes that can be expected to occur in the civil litigation arena over the next year or so.


A number of legislative changes that would impact civil litigation matters are anticipated for 2012.

According to a Nov. 29 article in The Legal Intelligencer headlined "State Legislator Eyes Changes to Jurisdiction Instead of Venue" by Amaris Elliott-Engel, there is a movement underway in the Pennsylvania legislature to change the venue rules applicable to Pennsylvania personal injury matters through a change in the law pertaining to appropriate jurisdiction by the trial courts over civil litigation matters.

Currently, under the venue rules found at Pa.R.C.P. 1006, a civil litigation defendant can be sued in the county where the underlying incident occurred, where the defendant resides, or where the defendant may be served with original process of the lawsuit.

Elliott-Engel reported state Rep. Bryan Cutler, R-Lancaster, is proposing legislation on proper jurisdiction that would add the plaintiff's county of residence to the current list of counties approved as proper venue.

One giant obstacle in the way of the passage of this potential legislation is the fact that the Pennsylvania Constitution vests the authority to create the rules for the civil litigation system solely to the Pennsylvania Supreme Court. Nevertheless, this potential legislation on jurisdiction over civil litigation matters is one to keep an eye on.

Other civil litigation related legislation that may be considered by the Pennsylvania General Assembly over the next year concerns minimum personal automobile insurance liability limits.

The current minimum liability limits for personal automobile insurance policies were first put in place approximately 30 years ago in the 1970s.

On Nov. 14, SB 1339 was introduced in the General Assembly. Under this bill, the minimum required automobile liability insurance for personal vehicles in Pennsylvania would be increased from the current amounts of $15,000/$30,000 to $30,000/$60,000. After being introduced earlier this year, the bill was quickly pulled but is expected to be addressed again in 2012.

Other legislation was actually passed over the past year that will have an impact in the automobile accident litigation arena in 2012 and beyond.

In November, Gov. Tom Corbett signed into law a prohibition against texting while driving. The new law, which will go into effect during the early part of 2012, bans sending, reading or writing a text-based message from a wireless phone, personal digital assistant, smartphone, 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.

Social Media Discovery

Over the past year or so, there have been a handful of trial court decisions issued on social media discovery issues. Thus far, it appears that the majority of those few cases that have come down to date have ruled in favor of allowing for the discovery of the parties' Facebook and MySpace pages and the like.

Those state court cases in favor of allowing discovery of social media information include McMillen v. Hummingbird Speedway out of Jefferson County, Zimmerman v. Weis Markets out of Northumberland County and Largent v. Reed out of Franklin County. Discovery of a plaintiff's Facebook information has also been allowed in the federal Middle District Court decision of Offenback v. L.M. Bowman Inc.

Discovery in this regard was not allowed in the Bucks County case of Piccolo v. Paterson where the court apparently reviewed the request for additional photos of the plaintiff's scarring injury as cumulative where the plaintiff had already provided the defense with numerous other such photos in discovery.

Just recently, discovery of information on a plaintiff's personal and business-related Facebook and MySpace pages was not allowed in the Luzerne County Court of Common Pleas case of Kalinowski v. Kirschenheiter and National Indemnity Co.

The Kalinowski case arose out of a motor vehicle accident. During the plaintiff's deposition, the defense learned that the plaintiff had Facebook and MySpace pages both on a personal basis and separately with respect to a bar he owned and operated. At the deposition, the plaintiff refused to disclose his login information or otherwise agree to allow the defense to view the nonpublic portions of his Web pages.

Following the deposition, the defense made another request for access to the plaintiff's Facebook and MySpace pages and, when that information was not forthcoming, filed a motion to compel along with a motion for an order directing the plaintiff to preserve the contents of the Web pages.

The plaintiff opposed the motion to compel arguing that the defense was seeking additional information on tangential issues and as part of an effort to embarrass the plaintiff. The plaintiff also argued that compelling him to grant access to his Web pages would compromise his privacy interests. The plaintiff additionally noted that the request for access to his business-related Web pages was irrelevant given that the plaintiff was not pursuing any wage loss claims. Finally, the plaintiff asserted that the defense had already discovered information from the publicly available portions of the Facebook and MySpace pages.

In his order without opinion, Luzerne County Common Pleas Court Judge Joseph Van Jura denied the defense motion to compel without prejudice, apparently leaving the door open for the issue to be revisited. The court also granted the defense motion to preserve and ordered the plaintiff not to delete any of the content on the websites.

With this growing split of authority on social media discovery issues, it can be reasonably anticipated that this issue will continue to trouble the trial courts across Pennsylvania in 2012. If we are lucky, perhaps this issue will make it up the appellate ladder over the next year so as to provide the courts and litigants with some guidance on how these types of discovery requests should be handled.

Expert Discovery

On Nov. 23, an en banc panel of the Pennsylvania Superior Court issued an opinion that served to overturn the trial court's decision to allow one party to review written communications sent by the opposing counsel to the opposing party's expert in the case of Barrick v. Holy Spirit Hospital. For the purposes of full disclosure, I note that I wrote the amicus curiae briefs on behalf of the Pennsylvania Defense Institute in this matter.

The en banc Superior Court's decision in Barrick serves to clarify how that court views the interplay between Pa.R.C.P. 4003.3 and 4003.5 — that is, the balance between the protections of the attorney work-product doctrine and the discoverability of the bases for an expert's opinion. In its most recent decision, the Barrick court provided blanket protection to litigating attorneys in terms of the content of the letters and e-mails they send to their trial experts in anticipation of the trial.

As of the writing of this article, it still remains to be seen whether the Barrick decision will be appealed up to the Pennsylvania Supreme Court.

In any event, the Supreme Court may address the issue by way of an amendment to the Pennsylvania Rules of Civil Procedure.

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. Significantly, the proposed amendment, like the recent Barrick decision, expressly prohibits the discovery of any kind of communications between any attorney and his or her client's expert.

This proposed recommendation, if adopted, will have the effect of bringing the state court practice more in line with new federal practice that went into play about a year ago.

Revisions to Rule 26 of the Federal Rules of Civil Procedure, which took effect about a year ago on Dec. 1, 2010, resulted in a significant change in the long-standing federal court procedure regarding the discovery of expert witness reports.

Relying upon the work-product doctrine, Federal Rule of Civil Procedure 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.

It remains to be seen whether additional court decisions or rule changes on this important expert discovery issue will take place in 2012.

Post-Koken Litigation

With many of the novel post- Koken automobile accident line of cases now moving beyond the pleadings and discovery phases and reaching the trial stage, it is anticipated that a number of decisions on trial-related issues will be handed down over the next year by the courts of common pleas across the Commonwealth.

Among those recurring issues will be whether the negligence claims asserted against the defendant driver should be bifurcated into a separate trial from the trial on the companion breach of contract claims asserted against the plaintiff's underinsured motorists insurance carrier.

At least one such decision was handed down on this issue in the Lehigh County Common Pleas Court post- Koken case of Purta v. Blower and Erie Insurance Exchange.  In Purta, Judge Edward D. Reibman addressed a motion to severance filed by the UIM carrier defendant to bifurcate the jointly filed third party and underinsured motorist claims into separate trials.

In a detailed order, Reibman granted the UIM carrier's motion for severance and ordered that the case proceed to a first trial on the negligence claims presented with only the plaintiffs and defendant tortfeasor being involved. That trial would be followed, if necessary, by a second trial of the plaintiff's case against the UIM carrier on the breach of contract claim.

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."

It is noted that this bifurcation issue is also currently pending in two cases in the Lackawanna County Common Pleas Court. One case, Eisbacher v. Davidson and Geico, is pending before Judge Robert A. Mazzoni, and the other case, Isles v. Smith and Erie Ins. Exchange, is currently before Judge Carmen D. Minora.

As these and other cases make it through the trial stage and beyond in 2012, the trial courts and litigators can hopefully anticipate that a variety of these novel post-Koken issues will finally reach the Pennsylvania Superior Court for long-awaited appellate guidance.

Author's note: I plan to touch upon all of these topics at the CLE seminar sponsored by my blog Tort Talk (, the Tort Talk Expo 2012 [on May 3, 2012 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.].

Interesting Coverage Decision on Multi-Million Dollar Case Out of Montgomery County

In the case of OneBeacon Ins. Co. v. William A. Graham Co., et al., No. 2009 - 41636 (C.P. Montg. Co. Dec. 14, 2011 Ott, J.), Montgomery County Judge Stanley R. Ott ruled that an insurance broker and its employee are not entitled to indemnity under their "advertising injury" coverage for a multi-million dollar judgment entered against them in a federal copyright infringement suit.

This decision is notable for its thorough recitation on the law of contract construction and the duty to defend and/or indemnify.  The Opinion is also interesting in that the Judge chooses to break out a Webster's Collegiate Dictionary for the determination of the ordinary meanings of pertinent words left undefined in the insurance policy at issue.

Anyone desiring a copy of the OneBeacon Ins. Co. v. William A. Graham Co., et al. case may contact me at

I send thanks to Attorney Andrew L. Braunfeld of the Conshohocken law firm of Masterson Braunfeld LLP for bringing this case to my attention.

Excellent Post by Drug and Device Law on New Federal Removal Statute

Here's a link to an excellent post put up last week on the Drug and Device Law Blog pertaining to the recently passed Federal Courts Jurisdiction and Venue Clarification Act of 2011 a part of which completely rewrites the federal removal statute found at 28 U.S.C. 1441(b):

Many new and important changes to the removal statute are outlined in the above post, including changes to the procedure of removal of cases involving multiple defendants from state court to federal court, timing issues, and other important topics.

I send thanks to Attorney James Beck of the Philadelphia office of  Dechert LLP and the main writer of the Drug and Device Law Blog for allowing me to link to this enlightening post on the new federal court removal statute.

Thursday, December 22, 2011

Pennsylvania Supreme Court Decides Important Property Damage Subrogation Issue

In what they termed a case of first impression, the Pennsylvania Supreme Court issued a decison on December 21, 2011 in the case of Jones v. Nationwide, No. 61 EAP 2010 (Pa. Dec. 21, 2011)(Majority Opinion by Baer, J.)(Eakin, J., concurring), affirming the practice of property damage carriers returning deductibles to insureds on a "pro rata" basis after a subrogation recovery against a third party tortfeasor.

The court rejected the plaintiff insured's contention that this practice violate the "made whole" doctrine which according to the plaintiff required that she receive her whole deductible back.  The Pennsylvania Supreme Court ruled that the "made whole" doctrine did not apply to the collision coverage at issue in this case.  Accordingly, the court dismissed the insured's class action.

The Majority Opinion (Baer, Castille, Saylor, Todd, McCaffery, Orie Melvin, JJ) can be viewed here.

The Concurring Opinion by Justice Eakin, agreeing with the Majority's holding but reaching it on different grounds, can be viewed here.

I send thanks to Attorney Will Sylianteng of the Philadlephia office of Bennett, Bricklin & Saltzburg for bringing this case to my attention.

Tuesday, December 20, 2011






Daniel E. Cummins
Foley, Cognetti, Comerford, Cimini & Cummins
The Scranton Electric Building
Suite 700
507 Linden Street
Scranton, PA 18510
(570) 346-0745

Another Facebook Discovery Case Out of Franklin County

Tort Talkers may recall that, a few weeks ago, I reported on the Franklin Court of Common Pleas Facebook discovery case of Largent v. Reed, 2009 – Civil – 1823 (Nov. 7, 2011) in which Judge Richard J. Walsh of that court directed a plaintiff to allow access to his Facebook page to defense counsel in a personal injury case.

Now, more recently, in another Franklin County Court of Common Pleas Facebook case entitled Arcq v. Fields, No. 2008 – Civil – 2430 (C.P. Franklin Co. Dec. 7, 2011 Herman, J.), Judge Douglas W. Herman of that court denied a defendant access to a plaintiff’s Facebook page in a personal injury case.

The court noted that the difference in the more recent Arcq case was that the defense admittedly had no good faith basis to rest such a motion to compel upon where the defense offered up no support for the contention that the plaintiff’s private Facebook pages contained information relevant to this litigation.

More specifically, the Arcq court stated that there was still a question as to whether or not the plaintiff even had a Facebook page or other social media pages. The court also emphasized that the defendant in this case had not established that it had even viewed any public pages of any alleged Facebook page for the plaintiff containing any information relevant to the litigation.

As such, the court denied the defendant’s motion to compel as a foundation for a request for a court order in this regard had not been established.

Anyone desiring a copy of the Arcq v. Fields case may contact me at

To view the other previous Tort Talk posts on Social Media discovery issues, click here.

I send thanks to Ben Present, a writer with The Legal Intelligencer/Pennsylvania Law Weekly for tipping me off on this case by way of his December 20, 2011 article "Plaintiffs Score a Pair of Wins in Social Media Decisions." (The other "win" he discussed was Luzerne County Judge Van Jura's opinion in the Kalinowski v. Kirschenheiter case.).

Sunday, December 18, 2011

Recklessness Allegations Dismissed in Federal Court Premises Liability Case

In the recent United States District Court for the Eastern District of Pennsylvania decision of Smith v. Marshalls, No. 11-5121 (E.D. Pa. Sept. 21, 2011 Bartle, J.), the court granted a store Defendant’s Motion to Dismiss claims of recklessness and punitive damages in a case in which a Plaintiff was allegedly injured by the store’s employee who pushed a cart into another cart which struck the Plaintiff and caused her to fall.

Accepting all of the facts pled in the Complaint as true as required by the standard of review, the court found that the facts alleged were insufficient to show recklessness on the part of the Defendant’s employee or any conduct warranting punitive damages.

In this case, the Plaintiff had alleged that the department store Defendant failed to have warning systems on carts used by employees, failed to provide an adequate space to accommodate employees, carts, and customers in the aisles of the store, and failed to post warnings to advise customers to look out for carts despite the fact that the store allegedly had knowledge that other customers had previously been injured by carts.

Finding these allegations insufficient to support claims of reckless conduct and/or punitive damages, the court granted the store Defendant’s Motion to Dismiss such claims.

For other decisions on this issue, check out this Tort Talk post.

Anyone desiring a copy of this Opinion in the case of Smith v. Marshalls may contact me at

Thursday, December 15, 2011

2011 Year-end Review Article on Bad Faith Cases

The following article of mine was published in the December 13, 2011 edition of the Pennsylvania Law Weekly.

Bad-Faith Decisions in Auto Law Context Abound in 2011


Daniel E. Cummins

The Legal Intelligencer/ Pennsylvania Law Weekly

December 13, 2011

Over the past year or so there were a great number of notable bad-faith decisions handed down by the various courts of Pennsylvania. Here's a review and analysis of the most significant ones. As you will see, a number of them came were handed down by federal courts.

Handling of UM Claims

The most comprehensive bad-faith decision in the auto law context over the past year was issued by Senior U.S. District Court Judge Maurice B. Cohill Jr. of the Western District of Pennsylvania in the case of Wisinski v. American Commerce Group Inc.

In a decision that reads as a thorough primer on the handling of uninsured motorists claims, the court outlined the alleged missteps by the carrier in the handling of the underlying uninsured motorist benefits claim. The carrier at one point incorrectly represented to its insured that the limits were only $50,000 but later corrected that to note the available limits were actually $100,000. The court also faulted the carrier for initially refusing to arbitrate the claim despite clear arbitration language in the policy.

The court also noted that UM carrier initially offered only $7,798 to settle this matter involving allegedly significant injuries. As the case proceeded, the carrier eventually coughed up its $100,000 limits. Then, in settlement, the carrier presented the claimant with a release that contained language requiring the plaintiff release any bad-faith claims against the carrier. Plaintiffs counsel would not agree to such language and secured a revised release.

In his decision, Cohill found, by clear and convincing evidence, that the insurer had acted in bad faith toward its insured. The court's ruling left for a jury decision only the issue of the amount of damages the plaintiff was entitled to under the circumstances presented.

In another notable bad-faith decision from the past year, Judge Carmen D. Minora issued a decision in the Lackawanna County Court of Common Pleas case of Struble v. Erie Insurance Exchange, allowing a bad-faith claim in an uninsured motorist case to proceed beyond the pleadings stage.

In this case, Erie denied coverage in response to the plaintiff's claims for uninsured motorist benefits. Minora noted that since the plaintiff had established both that UM/UIM coverage had been requested by the plaintiff during the application process, and that Erie could not produce any signed waivers of that requested coverage, it was a viable allegation by the plaintiff that any provisions in the subject Erie contract to the contrary were void as against law and public policy and should be reformed to reflect UIM coverage.

Given that punitive damages are an allowable remedy under the bad-faith statute, the court also denied the demurrer to that claim.

In terms of delays in handling UIM claims, the U.S. District Court for the Eastern District of Pennsylvania found that a 42-month delay between the claimant's demand for UIM arbitration and the issuance of the UIM carrier's settlement check was not bad faith in the case of Thomer v. Allstate.

The Thomer court held that, in order for a delay in responding on the part of the carrier to be considered bad faith under the bad-faith statute, 42 Pa.C.S.A., Section 8371, the claimant must show that (1) the delay was attributable to the carrier, (2) the insurer had no reasonable basis for the actions it took that resulted in the delay, and (3) the carrier knew or recklessly disregarded the fact that it had no reasonable basis to deny payment.

Here, some of the delays were attributable to the claimant and conflicting medical records supported the carrier's process of evaluating the claim. As such, the court granted summary judgment in favor of the carrier on the bad-faith claims presented.

Handling of UIM Claims

U.S. District Court Judge A. Richard Caputo for the Middle District of Pennsylvania granted summary judgment in favor of Progressive Casualty Insurance Co. in the post- Koken bad-faith case of Calestini v. Progressive Insurance Co.

In this decision, Caputo granted summary judgment in favor of the carrier on the bad-faith claim after finding that "the plaintiff has failed to bring forth clear and convincing evidence of bad faith on the part of the defendant in handling plaintiff's UIM claims."

The court rejected the plaintiff's allegation that the UIM carrier failed to expeditiously evaluate the claims presented. The court noted that the carrier's actions in this matter of desiring to conduct additional discovery on the causation issues in this case involving a plaintiff with an extensive medical history was supported by the opinion of the defense medical expert who raised questions as to the causation and extent of injuries issues. For these reasons, the court granted summary judgment in favor of the carrier on the bad-faith claim.

The latest opinion from the state Superior Court in the context of UIM bad-faith litigation is the case of Rhodes v. USAA Casualty Insurance Co.

This matter involved discovery issues raised in a bad-faith case based upon an underlying UIM claim pursued by an injured party against USAA with regard to a motor vehicle accident that occurred in July 2000.

In Rhodes, the injured party asserted a total value on the claim presented was $235,000. The third-party carrier had already tendered its $35,000 liability limits and another UIM carrier had tendered its limits of $15,000.

Based upon the total value he placed on the claim, the injured party offered to settle with USAA for $175,000. In response, USAA offered $5,000 to settle. The injured party claimed that this offer was not made in good faith and requested arbitration. According to the opinion, at some point thereafter, USAA eventually did agree to settle the claim for $175,000 in December 2003.

The injured party later filed suit against USAA for breach of contract for allegedly failing to act in good faith in the handling of the UIM claim.

In its decision in Rhodes, the state Superior Court addressed a discovery issue involving the efforts by USAA to secure the plaintiff's attorney's files relevant to the claim presented by the plaintiff against the other UIM carrier relevant to the same accident and claims of injury. The question of "reverse bad faith" was raised by the carrier in terms of the plaintiff's provision of discovery on the claims presented.

The trial court in Rhodes had touched upon the notion of "reverse bad faith" in its decision on the issue by noting that "[i]n the context of a bad faith insurance claim, the conduct of the plaintiffs and the possibility that their actions constituted bad faith is relevant because the possibility exists that the defendant acted in reliance on information provided to it by the plaintiffs that was inaccurate as a result of bad faith on the plaintiffs' part." Under this rationale, the trial court granted USAA's motion to compel the discovery desired. This appeal followed.

The Superior Court reversed and emphasized that there were no allegations of bad faith or lack of cooperation asserted with regards to the conduct of the insured asserted in this matter. Accordingly, the appellate court found that the only issue was the reasonableness of USAA's settlement offers and whether it acted in bad faith in refusing to meet the injured party's settlement demand sooner.

As such, the court rejected USAA's attempt to "turn the tables" and shift the focus to the injured party's conduct. The Rhodes court ultimately ruled that USAA failed to demonstrate how the files of the plaintiff's attorney in the related UIM litigation would be relevant to this bad-faith litigation. Consequently, the trial court order compelling discovery of the file of injured party's attorney regarding the related UIM claim was reversed.

Insurance Applications

In the case of Grassetti v. Property and Casualty Insurance Co. of Hartford, U.S. District Court Judge James M. Munley of the Middle District of Pennsylvania held that a policyholder who signed a form rejecting uninsured motorist coverage could move forward with his bad-faith claim on an allegation that the insurer failed to use language specified by state law on the UM rejection form.

The plaintiff was allegedly injured as a result of a May 2007 hit-and-run motor vehicle accident. Coverage was denied by the uninsured motorist carrier on the grounds that the injured party had rejected UM coverage during the application process.

In his bad-faith action against the carrier, the injured party argued that the carrier had acted unreasonably in denying coverage. The injured party essentially asserted that the UM rejection form was invalid because it did not strictly comply with the requirements of Pennsylvania's Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. Section 1731(b), pertaining to the content of the rejection of coverage form.

The carrier's form was found to deviate from the statutorily required language in one respect. The carrier's form referred to "Uninsured Motorists Coverage," while the statutory language referred only to "Uninsured Coverage."

Munley held that, in reading the complaint in a light most favorable to the plaintiff, it appeared that the plaintiff had adequately pled a cause of action under Pennsylvania's bad-faith statute, 42 Pa.C.S.   § 8371, given that Section 1731(c)(1) of the MVFRL requires strict compliance waiver language of Section 1731(b) and given that the plaintiff had adequately asserted in the complaint that the defendants withheld payment upon a claim without a reasonable basis and that defendants did so knowing they did not have a reasonable basis.

Post-Koken Bad-Faith Claims

Over the past year, a dichotomy has arisen between the Pennsylvania state courts and the federal courts in terms of how post- Koken cases involving bad-faith claims will be handled.

In his decision in the cases of Gunn v. Automobile Insurance Co. of Hartford, Conn., Allegheny County Common Pleas Court Judge R. Stanton Wettick Jr. had outlined a framework that has been followed by a number of other trial courts as the proper way to proceed for the handling of the discovery and trial issues in state court post- Koken consolidated claims involving UM/UIM and bad-faith claims.

Under Wettick's framework, no discovery on the bad-faith claims would be permitted until the conclusion of the trial in the UM or UIM claims. Furthermore, the UM or UIM claims would be tried first in front of a jury and, once the jury came back with its verdict on those claims, the bad-faith discovery would be turned over to the plaintiff and the court would proceed directly into the nonjury bad-faith trial with the same trial judge presiding over that matter. Wettick did note that the plaintiff could request a continuance of the nonjury bad-faith trial if the plaintiff needed time to study the carrier's bad-faith discovery responses.

In the decision of Craker v. State Farm, U.S. District Court Chief Judge Gary L. Lancaster of the Western District of Pennsylvania addressed a discovery-based motion to sever and stay filed by the UIM carrier. In ruling, without specifically referencing the same, the federal court held that it was not going to follow the discovery timetable created by Wettick in terms of the bad-faith portion of the post- Koken claim presented.

In this matter, the plaintiff sought bad-faith discovery during the pendency of both the UIM claim and the bad-faith claim in this post- Koken consolidated matter. The UIM carrier, State Farm, refused to participate in such discovery under the assertion that it did not need to respond to bad-faith discovery requests until the UIM claim was resolved.

The plaintiff filed a motion to compel State Farm to respond to the bad-faith discovery requests. State Farm argued that it would be irreparably prejudiced if it were forced to produce its UIM claims file, including the mental impressions, conclusions and opinions of the handling claims representative, in response to these discovery requests while the UIM claim was still pending. As an additional defense to the plaintiff's motion to compel, State Farm filed a motion to sever and stay the bad-faith claim.

The Craker court denied the motion to sever and stay the bad-faith claim and also granted the motion to compel filed by the plaintiff seeking discovery relevant to the bad-faith claim. Lancaster did deny a portion of the plaintiff's motion to compel as to waiver of the attorney-client privilege as he found that the parties had not provided the court with sufficient facts to decide that issue.

On the severance issue, Lancaster noted that although the parties argued in their briefs as to whether or not the UIM claim and the bad-faith claim should be tried together, bifurcation of the trial was not the "real question" being presented to the court. Rather, the court viewed the issue presented as to whether or not State Farm was entitled to "phased discovery" as requested (i.e. no bad-faith discovery until the UIM claim was completed).

Lancaster stated that, even if he decided to bifurcate the trial, he would not have necessarily ruled in favor of a phased discovery plan.

The court noted that phased discovery is permissible under F.R.C.P. 26(f)(3(B) if requested. In this case, the parties had noted in their pretrial submissions to the court that discovery was not anticipated to be completed in phases. The court found that State Farm's stated intention in its pretrial submissions that they planned to object to any bad-faith discovery to be "inconsequential" in the face of the other agreement of the parties that discovery would not be completed in phases.

Lancaster also noted that, based upon the parties' pretrial submissions, the court had entered a discovery order with a single deadline for discovery. It was also pointed out by the court that State Farm's motion to sever and stay, which was being viewed by the court as a motion for phased discovery, was filed 12 days beyond the discovery deadline and was, therefore, untimely.

Lancaster, nevertheless, reviewed the merits of the motion to sever and stay the bad-faith claim and found that it would be inappropriate to postpone discovery on the bad-faith claim until the UIM claim was resolved as that would delay the entire resolution of the matter.

The court noted that, if the cases were severed and stayed, a new set of discovery deadlines after the completion of the UIM portion of the case would be required. Additionally, the court was troubled by the fact that, in such a scenario, not only would the resolution of the entire matter be delayed but the same jury that decided the UIM claim could not be used to secure an "advisory verdict" on the bad-faith claim.

Lancaster additionally found that proceeding as requested by State Farm would not foster the interests of judicial economy. The court also went on to reject a number of other arguments put forth by State Farm in favor of the severance of claims.

As noted, the Craker decision is contrary to state court decisions from around the Commonwealth, including decisions from Wettick on how to handle discovery in combined UIM and bad-faith cases. In his opinion, Lancaster did not cite any state court decisions but did note that, although State Farm apparently cited such decisions, State Farm was the party that removed the case from the Court of Common Pleas and its different set of rules and had therefore subjected itself to the Federal Rules of Civil Procedure as they would be applied in the Western District.

In denying State Farm's motion with respect to the discovery issues, the court in Craker did note that State Farm would again have the opportunity to request a severance, or bifurcation, of the bad-faith claim from the UIM claim at the time of trial.

Remedies Permitted

In the case of Simmons v. Nationwide Mutual Fire Insurance Co., U.S. District Court Judge Terrence F. McVerry for the Western District of Pennsylvania addressed the remedies available to claimants in bad-faith actions. The case of Simmons involved an insured who sued his carrier based upon the carrier's refusal to pay on a claim based upon a theft of a number of the insured's tools.

The carrier in this case challenged the insured's demand for compensatory damages as part of his recovery. Reviewing the current status of bad-faith law in Pennsylvania, while the Simmons court agreed that a claim for compensatory damages was not recognized under the bad-faith statute, 42 Pa.C.S.A. § 8371, such a claim could be made under the common law theory of contractual bad faith.

Stated otherwise, the court held that, in Pennsylvania, a duty of good faith and fair dealing is implicit in an insurance contract. It therefore follows that, in addition to a statutory bad-faith claim, a plaintiff may bring a cause of action for breach of the contractual duty of good faith and fair dealing in the insurance context, which would permit an insured to recover compensatory damages for a carrier's failure to act in good faith.

Ultimately, the Simmons court found that the plaintiff was permitted to pursue on the remedies allowed by the bad-faith statute and the additional remedies for bad faith that may arise under a standard breach of contract action.

It is anticipated that a number of new bad-faith decisions will come down in 2012 as the first of a number of post- Koken automobile accident cases make it through the system to trial.

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

Tuesday, December 13, 2011

The Citizen's Voice Wins Re-Trial of Defamation Case Previously Presided Over by Ciavarella

On December 8, 2011, Judge Joseph Van Jura of the Luzerne County Court of Common Pleas issued a detailed 39 paged Opinion outlining his decision in favor of the Citizen's Voice in re-trial of a local businessman's defamation lawsuit.

The case of Joseph v. The Scranton Times, et al., No. 3816 - C of 2002 (C.P. Luz. Co. Dec. 8, 2011 Van Jura, J.) was the same matter that the newspaper previously alleged was fixed during the first trial by now-jailed county judge Mark A. Ciavarella.  The first trial had resulted in a $3.5 million dollar verdict in favor of the Plaintiff before being overturned on appeal.

Anyone desiring a copy of Judge Van Jura's Opinion, which contains a detailed analysis of the current status of defamation law and the available damages under such a claim in Pennsylvania, may contact me at

Pennsylvania Supreme Court Upholds Right to Immediate Appeals of Claims of Privilege

In the case of Commonwealth v. Harris, 8 EAP 2009 (Pa. Nov. 23, 2011)(Opinion by McCaffery, J.), the Pennsylvania Supreme Court ruled that trial court orders overruling claims of privilege and requiring disclosure of privileged and confidential materials are immediately appealable.

The disclosures at issue in this capital criminal court case revolved around the psychiatrist/client privilege as well as the attorney client privilege.

The implication in the civil litigation arena is that claims of privilege against the disclosure of requested discovery will still be deemed immediately appealable under the collateral order rule found at Pa.R.A.P. 313.

The majority Opinion can be reviewed here.

Justice Saylor's concurring Opinion can be reviewed here.

Source:  Article "Pennsylvania High Court Allows Immediate Privilege Appeals" by Ben Present in the December 13, 2011 Legal Intelligencer.

Pennsylvania Supreme Court Rules on How to Handle Personal Injury Settlement Proceeds in Divorce Action

In the divorce case of Focht v. Focht, 51 MAP 2010 (Pa. Nov. 23, 2011)(Opinion by McCaffery), the Pennsylvania Supreme Court reviewed the proper handling, in a divorce matter, of personal injury settlement proceeds secured by one spouse.

The Supreme Court overruled the Superior Court's finding that, since the parties had separated prior to the settlement of the case, the settlement proceeds should not be considered marital property in the divorce action.

The Supreme Court disagreed and noted that where, as here, a cause of action accrued after the date of marriage and before the date of final separation, then any subsequent settlement proceeds are to be considered marital property subject to equitable distribution, regardless of when the settlement occurred.

Justice McCaffery's Majority Opinion can be viewed here.

Justice Saylor's Concurring Opinion can be viewed here.

I send thanks to Attorney Walt McClatchy of the Philadelphia law firm of McClatchy and Associates for bringing this case to my attention.  I also note as a source the "Case Digests" of the December 6, 2011 edition of The Pennsylvania Law Weekly.

Monday, December 12, 2011

Special Needs Trusts Anyone?

Here's a topic that's over my head--Special Needs Trusts.

In his recent November 23, 2011 Opinion in the case of Watkins v. Baron, No. 10  - CV - 3161 (C.P. Lacka. Co. Nov. 23, 2011 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas tackled the topic when he addressed a request by a personal injury Plaintiff for the court's approval of her creation of an "Irrevocable Special Needs Trust" to hold her settlement proceeds as a way of preserving the Plaintiff's right to continue to separately receive her public assistance benefits, including Social Security Disability Benefits and Pennsylvania Department of Welfare Medicaid benefits.

The Plaintiff proposed that the Special Needs Trust would be funded by her settlement proceeds and would serve as a vehicle to supplement her receipt of the other noted benefits.

The Plaintiff provided documentation to the court that confirmed that the Social Security Administration and the Pennsylvania Department of Public Welfare did not have any objections to the creation of this trust.

After reviewing the law supporting the creation these types of Trusts, Judge Nealon granted the Plaintiff's motion and approved the creation of the Special Needs Trust. 

This case may be a good one to have in a situation where the amicable resolution of a personal injury matter may be held up by a Plaintiff's fear of impacting his or her ability to receive other benefits.  Anyone desiring a copy of this decision may contact me at

I thank Attorney Brian Urban of the Pottsville law firm of The Law Offices of Anthony Urban for bringing this case to my attention.

Sunday, December 11, 2011

2012 Edition of the Pennsylvania Trial Advocacy Handbook Now Available

The 2012 edition of the Pennsylvania Trial Advocacy Handbook, for which I serve as the writer of the Annual Supplement, is now available.
If you are interested in purchasing a copy of this treatise, please contact the publisher, George T. Bisel Company, Inc., at 1-800-247-3526 or go online at  For full disclosure purposes, I note that I do earn a royalty based upon book sales.


Breach of Contract/Bad Faith Auto Claim Dismissed by Federal Court

In a recent decision by the United States District Court for the Eastern District of Pennsylvania in the case of Caserta v. GEICO, No. 11-3537 (E.D. Pa. Sept. 29, 2011 McLaughlin, J.), the court dismissed the Claimant’s breach of contract and bad faith claim following the carrier’s denial of her claim arising out of a hit-and-run accident involving the Plaintiff and her boyfriend.

More specifically, on the night of the accident, the Plaintiff and her boyfriend were walking along the shoulder of a road when an unidentified vehicle struck them both and fled the scene. The boyfriend sustained fatal injuries as a result of the accident and the Plaintiff-girlfriend sustained minor physical injuries and emotional distress.

The Plaintiff-girlfriend presented an uninsured motorist claim to GECIO, her own carrier. GEICO denied coverage on the grounds that the claim presented was not covered under the policy.
Thereafter, the Plaintiff-girlfriend commenced this lawsuit. This issue came before the Court on a Motion for Judgment on the Pleadings filed by Defendant GEICO asserting that the Plaintiff was not covered under the policy issued to the girlfriend’s boyfriend’s mother.

The Plaintiff contended that she was entitled to benefits under the boyfriend’s mother’s policy with GEICO under the definition of insured which was defined as “any person who is entitled to recover damages because of bodily injuries sustained by an insured….” The Plaintiff girlfriend contended that she was entitled to recover for physical injuries and emotional distress suffered because of the bodily injuries sustained by her boyfriend, who was an insured under the policy.

The court disagreed and found that the language of the policy clearly provided the Plaintiff could only recover for damages suffered because of bodily injury sustained by the insured. The court found that the Plaintiff did not suffer damages because of the injuries sustained by her boyfriend. The girlfriend was found to have sustained harm at the same time as her boyfriend but her injuries were found not to be causally related to her boyfriend’s injuries.

The court also rejected the Plaintiff-girlfriend’s claim under the theory of negligent infliction of emotional distress on a bystander theory. The court found that, under Pennsylvania law, the close relationship between the parties require to support this bystander theory has not been extended to include boyfriends and girlfriends.

As such, based upon the case presented, the court granted the Motion for Judgment on the Pleadings filed by the insurance carrier.

Thursday, December 8, 2011

Date Set for TORT TALK EXPO 2012 (CLE Seminar)

I have secured a date to put on the TORT TALK EXPO 2012 CLE seminar.  The three credit hour seminar will take place on Thursday, May 3, 2012 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.

I will present a Civil Litigation Update/Auto Law Update for the first credit hour.

I am also making arrangements for the second credit hour to consist of a presentation by a noted board certified radiologist who will take the audience through the significance of a variety of types of diagnostic studies commonly seen in personal injury matters.

The third credit hour will be presided over by a prestigious panel of judges unlike one ever seen before in Northeastern Pennsylvania. Stay tuned for more details.

The seminar will be followed by a Cocktail Reception at which attendees from the legal industry, the insurance industry, and members of the state and federal judiciary from all around the Northeastern Pennsylvania region can mingle and digest the information learned.

Wednesday, December 7, 2011

Third Circuit Addresses Standard of Review//Right to De Novo Trial from UIM Proceeding

In the case of Harleysville Ins. Co. v. Cerciello, No. 10-4197 (3d Cir. 2011 Sloviter, Fuentes, and Fisher, J.J.)(Opinion by Fisher), the Third Circuit Court of Appeals reviewed a dispute between the parties over the language in a commercial policy pertaining to the right to appeal from a UIM arbitration.

After an arbitration of the matter in which the Plaintiff was granted an award, the carrier attempted to reject the arbitration award and invoke the trial demand contained in the policy.  The carrier argued that the policy  provided both parties the right to demand a trial after an arbitration.

Applying Pennsylvania law, the Third Circuit reviewed the issues presented and concluded that the parties  were precluded from contracting for a de novo trial in contravention to the standard of review of arbitration awards afforded to parties of an arbitration proceeding under the law.  The court additionally held, in any event, that the carrier had failed to follow the proper procedures in a timely fashion to secure its right to a further trial on the matter.

Anyone desiring a copy of this decision in the case of Harleysville Ins. Co. v. Cerciello may contact me at

Commonwealth Court Addresses Actual Notice Requirement Under the Sovereign Immunity Act

The Pennsylvania Commonwealth Court recently addressed the parametersof the written notice provision under the Sovereign Immunity Act, 42 Pa.C.S.A. Section 8522(b)(5), in the case of  Walthour v. PennDOT, No. 390 C.D. 2011 (Pa.Cmwlth. Nov. 17, 2011 McGinley, Cohn Jubelirer, Friedman, JJ.)(Opinion by Cohn Jubelirer).

In this case, a plaintiff was injured when the motorcycle she was a passenger on hit a pothole and causing her to be ejected from the bike and sustain personal injuries.  The Plaintiff sued PennDOT under an allegation that that Commonwealth Department had prior notice of the dangerous condition of the road and failed to fix it.

PennDOT eventually filed a Motion for Summary Judgment on the grounds that there was no evidence that the Department had prior, actual knowledge of the pothole as alleged.  PennDOT argued that, although it had received a letter from a State Senator regarding the condition of the subject roadway, that letter did not reference potholes.

The Allegheny County trial court previously granted PennDOT's motion for summary judgment.  On appeal, the Commonwealth Court found material facts to be in dispute and vacated the trial court's granting of a defendant's motion for summary judgment.

More specifically, the appellate court ruled that it was for a jury to decide whether the letter from the State Senator to PennDOT regarding overall condition of a particular portion of a state roadway, without specifically referencing the pothole in question, satisfied the written notice provision of the Sovereign Immunity Act, 42 Pa.C.S.A. 8522(b)(5).

The Commonwealth Court's Opinion in Walthour can be viewed here.

I send thanks to Attorney William Mabius of the Pennsylvania Association for Justice for bringing this case to my attention.

Sunday, December 4, 2011

Judge Van Jura of Luzerne County Bucks the Trend on Facebook Discovery in a Facts-Specific Case

Judge Joseph Van Jura recently bucked the trend of trial courts allowing discovery of a Plaintiff's Facebook page by denying a defendant's motion to compel in the facts-specific case of Kalinowski v. Kirschenheiter and National Indemn. Co., No. 6779 of 2010 (C.P. Luz. Co.   2011 Van Jura, J.).

The Kalinowski case arises out of a motor vehicle accident.  During the Plaintiff's deposition, the defense learned that the Plaintiff had Facebook and MySpace pages both on a personal basis and separately with respect to a bar he owned and operated.  At the deposition, the Plaintiff refused to disclose his login information or otherwise agree to allow the defense to view the non-public portions of his web pages.

Following the deposition, the defense made another request for access to the Plaintiff's Facebook and MySpace pages and, when that information was not forthcoming, filed a motion to compel along with a motion for an order directing the Plaintiff to preserve the contents of the web pages.

The Plaintiff opposed the motion to compel arguing that that the defense was seeking additional information on tangential issues and as part of an effort to embarrass the Plaintiff.  The Plaintiff also argued that compelling him to grant access to his web pages would compromise his privacy interests.  The Plaintiff also noted that the request for access to his business-related web pages was irrelevant given that the Plaintiff was not pursuing any wage loss claims.  Finally, the Plaintiff additionally asserted that the defense had already discovered information from the publicly available portions of the Facebook and MySpace pages.

In his Order without Opinion, Judge Van Jura denied the defense motion to compel "without prejudice," apparently leaving the door open for the issue to be revisited.  The court also granted the defense motion to preserve and ordered the Plaintiff not to delete any of the content on the subject websites.

Anyone desiring a copy of the Court's Order, the carrier Defendant's motion to compel, the carrier Defendant's motion to preserve, and the Plaintiff's Brief in opposition filed in this matter may contact me at

I send thanks to Attorney Ann Farias of the O'Donnell Law Offices in Kingston, PA for advising me this decision.

Thursday, December 1, 2011


I am pleased to announce that I was notified today by LexisNexis that Tort Talk has been selected as one of the Top 25 Torts Law Blogs in the nation!

Voting now begins to select the No. 1 Torts Law Blog.  Voting will be allowed between now and December 12, 2011.  I listed the link below where you can go to vote for Tort Talk if you are willing and able to do so. 

If you have found this blog to be helpful to you in your practice, have learned from the updates and articles, have obtained copies of cases noted, or have otherwise found this blog to be beneficial in any way, I am hopeful that you might be willing to take a few moments to cast a vote for Tort Talk.

I appreciate your previous votes and thank you in advance for another vote if you deem this blog worthy of such.

Below is the notice I received from LexisNexis along with the link to the page where you can vote:

I am pleased to announce that your blog has been selected as one of the LexisNexis Top 25 Torts Law Blogs of 2011! You can read the full announcement and list of honorees here. This article announcing the winners has gone live. As you’ll note, voting for THE top blog has begun, and will last until Friday, Dec. 10, at midnight ET.

The Top 25 group includes some of the best talent in the blogosphere and creates an invaluable content aggregate for all segments of the Torts Law practice. Most good blogs provide frequent posts on timely topics, but the authors in this year’s collective take their blogs to a different level by providing insightful commentary that demonstrates how blogs can—and do—impact and influence the world of business and corporate law.

Click HERE to go to the page for more information on how to VOTE.