Thursday, June 30, 2011

Recent Post-Koken Decision Out of Allegheny County Court of Common Pleas

Judge Ronald W. Folino of the Allegheny County Court of Common Pleas issued one of the most recent Post-Koken decisions in his June 28, 2011 Order without Opinion in the case of Stepanovich v. McGraw and State Farm, No. GDI10-016523 (Alleg. Co. June 28, 2011, Folino, J.).

This case involved a Plaintiff who sued the tortfeasor for negligence as well as the UIM carrier for UIM benefits and asserted various bad faith claims.  The third party tortfeasor filed preliminary objections seeking a severance of the claims against him from the claims against State Farm.

In his Order on the tortfeasor Defendant's Preliminary Objections, Judge Folino basically combined Judge Strassburger’s holding in Collins v. State Farm with Judge Wettick’s Opinion in Wutz v. State Farm by ruling that the tort and UIM case would proceed to trial first without reference to insurance, and that the bad faith/UTPCPL claims would be presented in a non-jury proceeding immediately thereafter.

Anyone desiring a copy of the Order without Opinion in the case of Stepanovich v. McGraw and State Farm may contact me at dancummins@comcast.net.

I thank Attorney Mark A. Martini of the Pittsburgh law firm of Robb Leonard Mulvihill LLP for forwarding this case to my attention.

Judge Carmen D. Minora of Lackawanna County Allows Discovery of Incident Report in Hospital Trip and Fall Case

Judge Carmen D. Minora recently issued an Opinion on the discoverability of hospital documents, such as an incident report, pertaining to a trip and fall incident in the case of Morgan v. Community Medical Center Healthcare System, No. 2008-CV-4859 (Lacka. Co. June 14, 2011, Minora, J.).

In Morgan, the Plaintiff had previously been in a motorcycle collision and was being treated in the hospital for injuries to his arm and legs. While being treated in the hospital’s emergency department for these injuries, the Plaintiff was given an IV dose of morphine.

At some point thereafter, the Plaintiff exited the emergency room without assistance or wheelchair. He fell on the concrete and struck his head and was re-admitted to the hospital with a head injury.

According to the Opinion, the circumstances under which the Plaintiff exited the hospital involve a major dispute between the parties. The Plaintiff alleges that he was discharged after receiving the IV morphine without any precautions. The Defendant hospital asserts that the Plaintiff demanded to leave the hospital against medical advice and refused a wheelchair when offered.

At issue in this matter was the Plaintiff’s Motion to Compel the Defendant hospital to produce an “Incident Report” prepared by the Defendant related to this event. The Plaintiff initially proceeded before the Lackawanna County Special Trial Master, Richard S. Campagna, who deemed the Incident Report discoverable. The Plaintiff appealed for a De Novo Review of the Special Trial Master’s decision and the case came before Judge Minora.

Judge Minora noted generally that the legal standards of discovery in Pennsylvania are to be liberally and generously construed to prevent surprise and unfairness and to allow a fair trial on the merits. He also noted that, if any conceivable basis exists upon which a discovery request is permissible, a motion to compel such discovery must be granted. Judge Minora additionally noted that, under Pennsylvania law, limitations on the scope of discovery are to be narrowly construed.

Judge Minora first rejected the Defendant hospital’s argument that the disclosure of the incident report was prohibited by Pennsylvania’s Medical Care Availability and Reduction of Error (MCARE) Act.  The Defendant had attempted to assert that, since the document at issue was prepared for the purpose of compliance with the Patient Safety Act, which is contained within the MCARE Act, such documents were not discoverable.

However, Judge Minora noted that the Defendant did not meet its burden of showing that the document was created “solely” for the purpose of compliance with the Patient Safety Act. The incident report was found to arguably have been prepared by the hospital for multiple purposes including insurance, filings, police reports, etc. Since this document may have been produced for multiple purposes other than compliance with the Patient Safety Act, the court found that the document lost its privileged status.

Judge Minora also found that the Defendant Hospital failed to meet its burden of showing that the disclosure of the incident report was prohibited under the Patient Safety and Quality Improvement Act of 2005. Again, it Court found that since there may have been reasons other than creating the document for a patient safety evaluation system in the hospital, the document lost its alleged privilege status, even if the report was ultimately presented to a patient safety organization for patient safety purposes.

As such, reiterating the liberal standards governing discovery and the preference to narrowing construe any limitations thereon, the court found that the incident report was indeed discoverable.

Judge Minora also rejected the Defendant’s requests for permission to file an interlocatory appeal on the issue, finding that the issue did not meet the standard for such an appeal as set forth under 42 Pa. C.S. §702(b).

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

Wednesday, June 29, 2011

Third Circuit Court of Appeals Upholds Department of Public Welfare's Recovery of Medicaid Liens

In its June 29, 2011 fifty-nine (59) paged decision in the case of Tristani v. Richman, No. 09-3537, No. 09-3538 (3rd Cir. June 29, 2011 Sloviter, Hardiman, Pollak, J.) (Opinion by Hardiman) (Pollak, dissenting), the United States Court of Appeals for the Third Circuit upheld the process by which the Pennsylvania Department of Welfare pursues recoveries of its Medicaid liens in civil litigation matters.

The Third Circuit Court of Appeals noted that, for over the past 30 years, where third parties are liable in civil litigation matters for medical expenses paid out through Medicaid, the Pennsylvania Department of Public Welfare has recouped its expenditures by asserting liens against settlements and judgments.

The Third Circuit noted that the United States Supreme Court, in the case of Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268, 280 n.9, 291-92 (2006), 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 Third Circuit Court of Appeals in this Tristani case was faced 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 by the Third Circuit Court in Tristani was that its “examination of the text, structure, history and purpose of the Social Security Act leads [the Third 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, Third Circuit 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.

It is noted that Judge Pollak issued a lengthy dissenting Opinion.


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

I thank Attorney Patrick J. Loughren of the Pittsburgh law firm of Loughren, Loughren & Loughren PC for bringing this decision to my attention.

Tuesday, June 28, 2011

Fair Share Joint and Several Liability Is Now the Law in Pennsylvania

On June 28, 2011, Governor Corbett signed into law SB 1131, commonly known as the Fair Share Act, which pertains to joint and several liability of defendants in civil litigation matters.

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

Under the prior joint and several law, a defendant who was found responsible for only 1 percent of the liability for an injury or economic loss could be held liable to pay 100 percent of the damages owed to the injured party; that is each defendant was "jointly liable" with all others for the full value of the damages.

With the new law, Pennsylvania now joins about 40 other states that have passed various types of reform in which parties are instead "severally liable."  That is, defendants in the reform states pay damages only to the proportion of their degree of fault assessed to them by a jury.  For example, if 25 percent of an injury or loss is found to be the responsibility of a single defendant, that defendant pays only 25 percent of the judgment.

Pennsylvania's Fair Share Act provides that, from this point forward, liability shall be several, and not joint, where the defendant's liability for the damage or loss is less than 60 percent of the total liability of all defendants, except under four exempted circumstances.

Under the new law, a defendant who bears the preponderance of responsibility can still be held jointly liable, i.e. responsible for the full amount of damages regardless of their percentage of fault.  However, parties who bear little or only partial responsibility for an injury or loss could be held to pay no more than their percentage share of the judgment.

The four exemptions from several liability protection are, as follows:

1. A suit including an intentional misrepresentation;

2. A case of intentional tort;

3. A suit concerning the release or threatened release of a hazardous substance under the Hazardous Sites Cleanup Act; or

4. A civil action in which a defendant has violated section 497 of the Liquor Code.

New Lackawanna County Local Rule 4000.2 - Case Management Proposals (Effective Date Not Until July 25, 2011)

The Lackawanna County Court of Common Pleas adopted new Local Rule 4000.2 on June 3, 2011 pursuant to an Order signed by President Judge Thomas J. Munley.  With the publication of the local rule in the PA Bulletin on June 25, 2011, Volume 41 Number 26, the rule will go into effect on Monday July 25, 2011.

Below is a copy of new Lackawanna County Local Rule 4000.2 with its related form:

RULE 4000.2. CASE MANAGEMENT PROPOSAL.


With the exception of medical malpractice cases, and upon closure of the pleadings, the Plaintiff(s) shall complete and forward to all Parties a Case Management Proposal in substantial compliance with Form 8 in the attached appendix. The Case Management Proposal shall set forth proposed deadlines for the completion of discovery, exchange of expert reports, and the filing of dispositive motions.

If the Plaintiff(s) has not received any objections to the Case Management Proposal within fifteen (15) days of mailing, the Plaintiff(s) shall submit the Proposal to the Lackawanna County Discovery Master for approval. If a Party objects to the Proposal, and the Parties are otherwise unable to agree, and upon appropriate notice as outlined in Lacka. Co. R. Civ. P. 208.2(f), the Proposal shall be submitted to the Discovery Master for resolution.

If the Plaintiff(s) shall fail to complete and forward a Case Management Proposal within thirty (30) days of the closure of the pleadings, nothing in this Rule shall preclude an Opposing Party from submitting a Case Management Proposal in compliance with this Rule.

Explanatory Comment

“Closure of the Pleadings” shall mean when all of the Parties have filed a Responsive Pleading in the form of an Answer, and a Reply to New Matter, if any.

Nothing in this Rule shall preclude a Party from seeking an Amendment to the Case Management Schedule upon good cause shown. Nothing shall preclude the Trial Court to Amend the Case Management Schedule upon request of a Party and upon good cause shown.


_____________________________________________________________

FORM 8

                                                  IN THE COURT OF COMMON PLEAS
                                                  OF LACKAWANNA COUNTY

PLAINTIFF

                 -VS-

DEFENDANT                               ________ - CIV. - __________

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::



CASE MANAGEMENT PROPOSAL


Now comes, _____________________, for and on behalf of ________________, and hereby submits for approval the following case management deadlines, pursuant to Lacka. Co. R. Civ. P. :

A. All Discovery shall conclude on or before ____________________;

B. Plaintiff(s) shall exchange with the Defendant(s) all Expert Reports on or before ____________________;

C. Defendant(s) shall exchange with Plaintiff(s) all Expert Reports on or before ____________________;

D. Plaintiff(s) shall exchange with the Defendant(s) all Rebuttal Reports on or before ____________________;

E. Dispositive Motions shall be filed on or before ____________________.




CERTIFICATION


I hereby certify that the aforementioned Proposal has been forwarded to all Parties on _____________________, at least fifteen (15) days have elapsed, and no Party has objected to the Case Management Proposal.

                    ___________________________________
                    (MOVING PARTY)



O R D E R

AND NOW, this ________ day of _______________, 20____, it is hereby ORDERED and DECREED that the aforementioned Proposal is hereby ADOPTED as an Order of Court.

                      ____________________________________
                      JUDGE/DISCOVERY MASTER

Monday, June 27, 2011

New Pennsylvania Joint and Several Liability Law On its Way to Governor's Desk

SB 1131, previously approved by the Pennsylvania Senate, has been passed by the Pennsylvania House  of Representatives by a vote of 116 to 83.  It now proceeds to Governor Corbett's desk where it is likely to be signed into law in the near future.

Below is a link to the bill. The bill takes effect upon the governor's signature and the bill applies to causes of action that "accrue on or after the effective date."

http://ldpc6.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2011&sessInd=0&billBody=S&billTyp=B&billNbr=1131&pn=1389

I send thanks to Tim Bittle of Bigley and Blikle, a government relations services company, for this update.

Another Trial Court Decision Allowing Fibromyalgia Claim to Proceed to a Jury

In the Lehigh County Court of Common Pleas recently joined the growing number of Pennsylvania trial courts allowing a Plaintiff to present expert testimony relating an alleged fibromyalgia condition to a traumatic event.

In the case of Getz v. Bennett, 54 Leh. L. J. 495 (Jan. 31, 2011), the court denied a Defendant’s Motion to Bar a Plaintiff’s Expert’s Opinion that a motor vehicle accident caused the Plaintiff’s fibromyalgia condition.

The court in Getz found that the methodology of the expert was generally accepted in the scientific community. The opinion was also found to be based upon physical and neurological examination of the Plaintiff, her medical history, and the sequence of events leading to the onset of the symptoms. The court also referenced literature linking trauma and fibromyalgia. It appears from the opinion that the court was also influence by the lack of any fibromyalgia symptoms before the subject accident.

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


Here are links to other Tort Talk posts on this issue that show that the emerging trend of the Pennsylvania trial courts is to allow this form of expert testimony on the grounds that the methodology that underlies the expert's conclusion has gained general acceptance in the relevant scientific community:


http://www.torttalk.com/2009/07/trial-courts-continue-to-struggle-with.html

http://www.torttalk.com/2009/09/expert-testimony-on-fibromyalgia.html

http://www.torttalk.com/2010/10/judge-sibum-of-monroe-county-allows-for.html


Here's a link to a prior Pennsylvania Law Weekly article of mine on the topic, entitled "Fibromyalgia as a Diagnosis in Personal Injury Cases":

http://www.jdsupra.com/post/documentViewer.aspx?fid=7b1fc59d-4789-4f9e-be96-f157818c6d80
 
 
Based upon the above, it appears the the overwhelming current trend is that the trial courts have been willing to allow expert opinion linking a plaintiff's alleged fibromyalgia condition to a traumatic event to proceed ahead for a jury's consideration.

Friday, June 24, 2011

Recent Bad Faith Decision Out of Lackawanna County by Judge Minora

On June 14, 2011, Judge Carmen D. Minora, issued one of the latest bad faith decisions in the automobile insurance context in the Lackawanna County case of Struble v. Erie Insurance Exchange, No. 2010-CV-4789 (Lacka. Co. June 14, 2011, Minora, J.).

This opinion arises out of Preliminary Objections asserted by Erie to the Plaintiff’s Complaint for declaratory judgment which sought a judicial declaration that Erie should provide uninsured motorist coverage under the facts presented.

By way of background, in June of 2003, the Plaintiff’s employer, Stone Silo Foods, Inc., secured a commercial non-fleet/fleet auto insurance policy from Erie Insurance Company. The application for insurance named a 1991 Ford van and also provided coverages for hired autos and non-owned autos. Significantly, the application for insurance specifically requested uninsured and underinsured coverages for all vehicles in the amount of $1 million dollars.

Eventually, a policy was issued by Erie to the Plaintiff’s employer. Under an amendment to the declarations page, the policy listed Penske Truck Leasing as an additional insured under the policy for hired and non-owned autos.

The Plaintiff, James Struble, was an officer and an employee of the employer at issue, Stone Silo Foods, Inc. On January 31, 2008, the Plaintiff, James Struble, was operating a refrigerated truck, hired by his employer, Stone Silo Foods, Inc., from Penske Truck Leasing Company.

A phantom vehicle allegedly came into the Plaintiff’s lane, causing the Plaintiff’s vehicle to go off the road and result in an accident. A police report was filed an uninsured motorist claim was timely made to Erie Insurance Company under the Stone Silo Foods, Inc. commercial automobile insurance policy issued by the carrier.

At the time the vehicle was leased by Penske Truck Leasing Company, Stone Silo Foods, Inc. declined liability coverage from the rental company, as such coverage was provided under the Erie Insurance policy.

Defendant Erie denied the Plaintiff’s UM claim stating that there was no uninsured coverage for hired and non-owned autos. When Plaintiff’s counsel requested copies of any waivers of uninsured motorist coverage under the policy, Erie Insurance advised that they had no such waivers to produce.

The Plaintiff thereafter filed a declaratory judgment action seeking a declaration as to the existence of uninsured motorist coverage under the facts presented. Additionally, the Complaint also alleged bad faith under 42 Pa.C.S. Section 8371 along with a request for punitive damages.

Erie responded by filing Preliminary Objections to the Plaintiff’s Complaint. Primarily, Erie asserted a demurrer to the Plaintiff’s bad faith and punitive damages claims. The carrier also objected to the Plaintiff’s failure to join Penske Trucking and Leasing as its insurer, Old Republican Insurance Company, as indispensible parties to the action.

After reviewing the briefs and arguments presented by the parties, Judge Minora issued an Opinion and Order overruling the Preliminary Objections asserted by Erie Insurance Exchange. The Court noted that reviewing the facts plead in the Plaintiff’s Complaint against Pennsylvania bad faith law compelled the conclusion that the Plaintiff had properly stated a bad faith claim.

Concisely, the Plaintiff had alleged that his employer, Stone Silo Foods, Inc. purchased a commercial liability automobile policy from Erie Insurance to coverage one vehicle owned by Stone Silo Foods, Inc., as well as hired autos and non-hired autos. The Plaintiff also alleged that both bodily injury and UM/UIM coverages were requested and purchased in the amount of $1 million dollars. The Plaintiff additionally alleged that he was operating a hired/leased auto covered under the Erie policy when he was injured by an uninsured motorist. The Plaintiff also went on to aver that, when he presented his uninsured motorist claim under the Erie policy, Erie unreasonably denied coverage to its insured.

In his opinion, Judge Minora noted that, under the Pennsylvania Motor Vehicle Code, no motor vehicle liability insurance policy shall be delivered in Pennsylvania unless uninsured motorist and underinsured motorist coverages are offered therein. He emphasized that, while the purchase of UM/UIM coverages are optional, the offering of such coverage in the first place by the carrier is mandatory.

In this case, since there was no dispute that the Plaintiff’s Complaint asserted that Stone Silo Foods, Inc. have purchased motor vehicle liability insurance for hired autos under its policy with Erie and no dispute that the leased vehicle at issue was registered in the State of Pennsylvania, UM/UIM coverages were required to be offered under Pennsylvania law (citing 75 Pa.C.S. §1731(a)).

Furthermore, in addition to the offer of such coverages being mandatory, if the insured was not going to purchase those coverages, the law required a written waiver confirming the rejection of coverage. As noted, Erie failed to produce any waivers in this matter.

Accordingly, the court found that it was arguable under the facts pled that Erie knew or recklessly disregarded its lack of a reasonable basis in denying the claim by either not complying with the original application for insurance or by failing to produce the required waivers of UM/UIM coverages.

Judge Minora noted that since the Plaintiff had established that the Erie insured had requested UM/UIM coverage in that Erie could not produce any sign waivers of the same, it was a viable allegation by the Plaintiff that any provisions in the subject Erie contact were void as against law and public policy and should be reformed to reflect UIM coverage.

Judge Minora went on to state that while discovery may yield further information, the Court could not find that it was clear and free from doubt, as a matter of law, at this Complaint stage, that the Plaintiff had failed to state a cause of action that would sustain a bad faith claim. As such, the demurrer to the bad faith claim was overruled and dismissed.

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

Judge Minora additionally found that the Penske Leasing Company and Old Republican Insurance Company, were not indispensable parties under the facts presented. As such, the Defendant carrier’s Preliminary Objections in this regard were overruled as well.


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

Novel Future Conflicts of Interest Decision issued by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas

In his June 16, 2011 Opinion in the case of Lasavage v. Smith, No. 10 - CV - 2183 (Lacka. Co. June 16, 2011 Nealon, J.), Lackawanna County Judge Terrence R. Nealon addressed conflicts of interest issues involving personal injury firms that represent health care providers on business matters and then later sue their former clients in medical malpractice actions.

The case involved an "advance conflict waiver" that a plaintiff's personal injury law firm had its physician clients sign acknowledging that the law firm may later sue them for medical malpractice if appropriate.

In this matter, visiting Senior Judge Peter O'Brien originally decided that the medical malpractice defendants' motion to disqualify the plaintiff's law firm from handling the case by Order only denying that motion.

The plaintiff's law firm followed up by later filing a motion for sanctions seeking attorney's fees for having to defend against the motion for disqualification previously decided by Judge O'Brien.  The motion for sanctions was assigned to Judge Nealon for decision. In deciding the sanctions motion, Judge Nealon analyzed the parties' arguments concerning both the advance conflict waiver issue and the "substantially related" matters test.

Judge Nealon ruled that although the medical malpractice defendant did not succeed with their disqualification motion, the challenge to the enforceability of the advance conflict waiver was not frivolous, particularly in light of the absence of any Pennsylvania decisional precedent interpreting Comment 22 to Rule of Professional Conduct No. 1.9 governing consents to future conflicts. 

The court also found that there was evidentiary support and a novel legal argument for the proposition that the former and current representations involved “substantially related” subjects due to the plaintiff’s corporate liability claim in this case and the confidential information that plaintiff’s counsel had reportedly acquired when previously creating the medical malpractice defendant's corporation. 

Accordingly, the court denied the plaintiff’s petition for sanctions.

Anyone desiring a copy of Judge Nealon's decision in Lasavage may contact me at dancummins@comcast.net.

Thursday, June 23, 2011

Recent Trial Court Decisions Allowing Punitive Damages in Trucking Cases

In a decision issued back on February 14, 2011, Judge Joseph Cosgrove of the Luzerne County Court of Common Pleas addressed Preliminary Objections to a punitive damages claim contained in the trucking accident case of Overman v. Fraser, et.al., No. 9225-Civ-2010 (Luz. Co. Feb. 14, 2011, Cosgrove, J.).

According to the opinion, at the time of the motor vehicle accident involved in this matter, the Plaintiff was working on traffic lights from the bucket of a construction vehicle parked in a clearly marked construction area. The Defendant truck driver, operating a tractor trailer, came through the construction area and struck the bucket and then the Plaintiff’s vehicle, resulting in injuries to the Plaintiff.

Judge Cosgrove noted that the “essence of Plaintiff’s demand for punitive damages centers on [the truck driver’s] status as a professional driver operating such a substantial vehicle in a way which caused this collision in a construction zone.” The Plaintiff also asserted that the owner of the tractor trailer was responsible for permitting the tractor trailer driver to operate the vehicle when they knew or should have known was unable to do so properly.

Relying upon the Federal Middle District Court decision in the case of Grosek v. Panther Transp., Inc., 2009 W.L. 427, 238 (M.D. Pa. 2009), a case involving similar punitive damages claims, Judge Cosgrove essentially ruled that the involvement of a larger vehicle being operated by a driver with experience and training and safety required the Court to find that the Defendant had not met their “heavy burden” in support of the Preliminary Objections seeking the dismissal of the punitive damages claims.

Another recent, local decision allowing a punitive claim to go forward beyond the Motion for Summary Judgment stage is the November 3, 2010 decision by Judge Carmen D. Minora in the case of Riese v. C&M Sales, Inc., No. 06 CV 6281 (Lacka. Co. Nov. 3, 2010, Minora, J.). In Riese, however, there were more substantial allegations of safety violations and reckless conduct on the part of the Defendant truck driver and Defendant owner of the trucking vehicle involved.



Anyone desiring a copy of the Overman decision by Judge Cosgrove or the Riese decision by Judge Minora may contact me at dancummins@comcast.net.

It Is Still Possible to Have a Case Dismissed for Inactivity (Judgment Non Pros) - Part II

I recently reported on the 11 year old case of Pagnotti v. Louis Pagnotti, Inc., 2000 - CV - 566 (Lacka. Co. June 1, 2011 Minora, J.), in which Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas applied the factors set forth in the Pennsylvania Supreme Court case of Jacobs v. Halloran, 710 A.2d 1098 (Pa. 1998), to grant a defendant's motion for entry of a judgment of non pros due to inactivity in the claim.

Here's a link to complete Tort Talk post on Judge Minora's case:  http://www.torttalk.com/2011/06/it-is-still-possible-to-have-case.html


I note that Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently issued a similar Order, with an explanation of his rationale, granting a non pros judgment in a case my partner, Timothy E. Foley, and I defended entitled Calopha, Inc. d/b/a Servpro of Mountaintop v. Gerald Williams Adjustment Service, No. 2004 - CV - 1700 (Lacka. Co. April 20, 2011 Nealon, J.).

The Calopha case was commenced back in 2004 and involved a claim in which the Plaintiff was seeking payment for remediation work completed by the Plaintiff-company.  In this case there was a gap of six (6) years since the last docket activity. 

Judge Nealon likewise primarily relied upon the tripartite test enunciated in Jacobs v. Halloran case to conclude that the Defendant was entitled to a non pros judgment in light of the inactivity by the Plaintiff in the case.

Anyone desiring a copy of the decisions of Judge Nealon or Judge Minora, or the Petition and Brief for Judgment Non Pros filed by my office, may contact me at dancummins@comcast.net.


(Past successes do not guarantee that similar results will be secured in future cases.  Rather, each case must be handled on its own merits. )

Tuesday, June 21, 2011

Lackawanna County Judge Terrence R. Nealon Rules in Favor of Carrier on Coverage Question

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently handed down a decision granting a declaratory judgment in favor of a carrier on an automobile insurance coverage issue in the case of Safe Auto v. Zater, No. 2009-CV - 5013 (Lacka. Co. June 14, 2011, Nealon, J.).

The coverage dispute in Zater arises from an accident which occurred on October 2, 2008 when a James Manson was operating an Amy Zator’s vehicle and was involved in a multi-vehicle accident. At the time of the accident, Zator was insured by an insurance policy issued by Safe Auto.

According to Judge Nealon's Opinion, the plain language of Safe Auto’s policy excludes liability coverage for any property damage or bodily injury that occurred while Zator’s vehicle was being operated by a resident of her household who was not listed as an additional driver on the declarations page.

The term “resident” is defined in the policy as any person who physically lived in Zator’s household for longer than 14 consecutive days as of the date of the accident. In addition, Safe Auto’s policy also excludes coverage if Zator’s vehicle was being operated without her permission.

Judge Nealon noted that the summary judgment record before him, including the deemed admissions of Zator and Manson to Safe Auto’s requests for admissions, established that Zator and Manson had been residing together continuously for several years. It was also undisputed that Manson was never listed as an additional driver on Safe Auto’s policy at any time prior to the date of the accident. Furthermore, there was no dispute that Manson did not have Zator’s permission to operate her car and that Manson was aware of the fact that he was not permitted to drive Zator’s vehicles.

After providing a thorough summary of the law of contract/insurance policy interpretation, as well as the law pertaining to the duty to defend and/or indemnify, Judge Nealon entered an Order granting the carrier's request for a judicial declaration that it need not provide a defense or indemnification under the facts presented.

Anyone desiring a copy of Judge Nealon's Opinion in the case of Safe Auto v. Zater may contact me at dancummins@comcast.net

Summary Judgment Entered For Landlord in Lackawanna County Trip and Fall Case

Senior Visiting Judge Harold A. Thomson, Jr. sitting in on a Lackawanna County Court of Common Pleas case recently entered a summary judgment in favor of the Defendants in the trip and fall case of Higgins v. Siminski, No. 2006 -CV - 2480 (Lacka. Co. June 8, 2011, Thomson, S.J).

According to the Opinion, the Plaintiff was arrested on the night of the incident for public drunkenness.  After being taken to police headquarters to be issued a citation, the officer(s) transported the Plaintiff home.  The officer(s) assisted the Plaintiff up the outside steps to the second floor door of his apartment.  The Plaintiff fell from the officer's grasp and rolled off second floor landing and hit the asphalt below in a head first fashion.

The Plaintiff claimed that the Defendant landowners/landlords were negligent in their care of the property and breached the implied warranty of habitability.

Judge Thomson found, however, there were no witnesses to the accident, and no expert opinion regarding the condition of the property. Nobody knew exactly how the plaintiff fell, including the plaintiff, because he was in a drunken state when he fell off the second floor of the property.

Because the plaintiff could only speculate as to the cause of the fall, the court reasoned that “there are too many possibilities for explanations in this particular instance, with too much risk of a fact-finder making an assessment of liability on conjecture, rather than fact.”

The court therefore granted summary judgment in favor of the Defendant landowners/landlords on both the negligence and breach of the implied warranty of habitability counts.

The prevailing defense attorney is William Connor, Esq. of the Philadelphia law firm of Christie, Pabarue, Mortenson & Young.  I thank Attorney Matthew Shusterman of the same firm for bringing this case to my attention.

Anyone desiring a copy of Judge Thomson's Opinion in the case of Higgins v. Siminski may contact me at dancummins@comcast.net.

Results of Pennsylvania Senate Vote on Joint and Several Liability Bill

Senate Bill 1131 as amended by the removal of the exceptions which would have retained joint liability for claims for economic damages and claims in which a minor has a beneficial interest was passed by the Senate by a vote of 32 to 18.  The bill heads to the House Judiciary Committee for consideration.

It is anticipated by commentators that the House will approve the Bill as will Governor Corbett when the Bill reaches his desk.  If the House amends the Bill in any way it will have to go back to the Senate for further consideration.

It is anticipated that the House may vote on the Bill this week.

The reprinted bill can be viewed at http://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2011&sessInd=0&billBody=S&billTyp=B&billNbr=1131&pn=1389

Thanks to Tim Bittle of Bigley and Blikle for the update on this legislation.

Monday, June 20, 2011

Pennsylvania Senate Expected to Vote on Joint and Several Liability Bill Today


The Senate is expected to vote today on the issue of joint and several liability in the form of Senate Bill 1131, a bill recently introduced and sponsored by Sen. Stewart Greenleaf.

Senate Bill 1131 eliminates joint liability except in cases in which a defendant is found liable for at least 60 percent of the liability and adds exceptions to the rule that would pertain to economic damages and cases in which a minor has a beneficial interest.

Source of Image: Schoolhouse Rock,, David McCall

Sunday, June 19, 2011

LOOK OUT!! - Claim by Injured Skier Against Reckless Fellow Skier Allowed to Proceed



While there have been a number of recent decisions limiting the rights of injured skiers to recover under Pennsylvania law, it appears that such claims will be allowed to proceed against a fellow skier where the injury results from the reckless acts of that other skier.

In a June 14, 2011 decision, Judge Richard P. Conaboy of the United States District Court for the Middle District of Pennsylvania entered an Opinion and Order in the case of Smith v. Demetria, et al., No. 3:11-CV-773 (M.D.Pa. June 14, 2011, Conaboy, J.) denying the motion to dismiss and allowing the tort and punitive damages claims to go forward in a skiing accident case.

In this matter, the Plaintiff, who was injured while skiing, filed a claim against a snowboarder alleging that the snowboarder was acting recklessly at the time of the incident.  It was alleged that the snowboarder was coming down the hill at approximately 35 mph and made no effort to avoid the Plaintiff prior to the impact.  Punitive damages were claimed.  The snowboarder filed a Rule 12(b)(6) Motion to Dismiss.

In his memorandum, Judge Conaboy held that, under the facts before the court of a skier having been injured by another reckless skier, while the the Skier Responsibility Act may preclude a claim involving a collision between skiers as a result of ordinary negligence, the Act did not preclude claims against someone who skiing abnormally, recklessly, or out of control.

The Court also ruled that the punitive damages claim would be allowed beyond the Rule 12(b)(6) motion to dismiss stage as adequate facts had been alleged to support the filing of a claim for exemplary damages.

I thank the prevailing Plaintiff's Attorney, Stephen Seach, of Seach Law Offices in Drums, PA for bringing this case to my attention.

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



Source of photo:   Image: Salvatore Vuono / FreeDigitalPhotos.net

Friday, June 17, 2011

This Week - June 23, 2011 - Pennsylvania Defense Institute CLE in Pittsburgh

PENNSYLVANIA DEFENSE INSTITUTE

Presents

"Insurance Law Developments 2011"
(3 Substantive CLE Credits)



Sheraton Station Square Hotel
Pittsburgh, Pennsylvania


Thursday, June 23, 2011



1:00 – 1:30 PM Registration


1:30 - 1:50 PM “Tort Reform Update”

Timothy Bittle
Bigley & Blikle


 
1:50 – 2:30 PM “Auto Law Update”

Thomas McDonnell, Esq.
Summers, McDonnell, Hudock, Guthrie & Skeel



2:30 – 3:10 PM “Uninsured/Underinsured Motorist Law Update”

Craig Murphey, Esq.
MacDonald, Illig, Jones & Britton

 

3:10 – 3:25 PM Break



3:25 – 4:05 PM “Insurance Bad Faith Law: Update”

Robert Dapper, Esq.
Dapper, Baldasare, Benson, Behling & Kane

Daniel Rivetti, Esq.
Robb, Leonard & Mulvihill



4:05 – 4:45 PM “Civil Practice & Procedure”

Scott Millhouse, Esq.
Meyer, Darragh, Buckler, Bebenek & Eck

 

Costs for the event:

• CLE program for lawyers $125.00

• All others $25.00



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


Name(s)_____________________________________


___________________________________________



Firm/Company_________________________________


 
____________________________________________


Make checks payable to:

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



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


Thursday, June 16, 2011

Pennsylvania Superior Court Affirms Denial of UIM Claim Based Upon Worker's Compensation Exclusivity Provision

You may recall that I previously reported on the decision of Judge Alan Hertzberg of the Allegheny Court of Common Pleas in the case of Erie Insurance Exchange v. Conley, No. G.D. 09-21471 (Alleg. Co. Aug. 27, 2010, Hertzberg, J.), in which the Court addressed the issue of the permissibility of filing a lawsuit for UIM benefits when the tortfeasor is the Plaintiff’s employer and worker’s compensation benefits were paid to the injured party. That case involved an injured party who was injured while the scope and course of his employment.

Erie denied the claim for uninsured or underinsured motorist benefits and filed a declaratory judgment action. Judge Hertzberg had granted Erie’s Motion for Judgment on the Pleadings and found that Erie had no obligation to provide the injured party with any uninsured or underinsured motorist benefits.

After reviewing the applicable case law, Judge Hertzberg concluded that, where an injured party is injured by his employer or a co-employee with the scope and course of the injured party’s employment, the exclusivity provision of the worker’s compensation law limited the injured party’s recovery to the worker’s compensation benefits and precluded any uninsured or underinsured motorist claims.


UPDATE: On June 9, 2011, the Pennsylvania Superior Court issued a non-precedential memorandum decision affirming Judge Hertzberg’s opinion.

The Superior Court emphasized, as did Judge Hertzberg in the Opinion below, that the UIM policy below provided that UIM coverage would be provided where the "law entitles" the injured party to a recovery. 

Under these facts and the applicability of the Worker's Compensation exclusivity provision, the injured party was not legally entitled to a recovery. 

As such, the carrier's decision to deny coverage was affirmed.


Anyone desiring a copy of the Superior Court’s opinion may contact me at dancummins@comcast.net.

Click here to view a post on Judge Nealon's same decision on the same issue, handed down on the same day as Judge Hertzberg's trial court decision: 

http://www.torttalk.com/2010/09/another-trial-court-decision-upholding.html

Allentown Cell Phone Ban Ruled Invalid by Lehigh County Court of Common Pleas

I am referencing a criminal court decision for the first time on Tort Talk since it could have an impact in automobile accident civil matters in which there are allegations that one of the drivers was using a cell phone at the time of the accident which is the subject of the litigation.

In the Lehigh County case of Commonwealth v. Steiner, PICS Case No. 11-1052 (Lehigh Co. May 4, 2011, Anthony, J.), Judge James T. Anthony ruled that an Allentown City ordinance prohibiting the use of a cell phone while operating a motor vehicle was invalid because the Pennsylvania Legislature intended that motor vehicle regulations be uniform throughout the state and this ordinance would subject motorists to unreasonable inconsistencies contrary to the purpose of the Vehicle Code. Defendant's motion to dismiss granted.

In this criminal matter, the defendant was charged with violating the ordinance for using a mobile phone while operating his vehicle. Defendant was found guilty and filed a summary appeal. Following the summary appeal hearing, defendant filed a motion to dismiss alleging that the ordinance was preempted by the Pennsylvania Vehicle Code.

After reviewing the law of preemption, Judge Anthony ruled that the Legislature intended that motor vehicle regulation be uniform throughout the state and that local municipalities need express authorization to enact any ordinances on matter covered by the Vehicle Code. Thus, for the ordinance at issue to be valid, there must be specific authorization in the Vehicle Code permitting the City of Allentown to enact such an ordinance.

The court noted that Section 6109 of the Vehicle Code provides that its provisions shall not be deemed to prevent local authorities from the reasonable exercise of their police powers. The section then follows with 23 specific examples of regulations that are presumed to be reasonable. None of the 23 examples authorized the action taken by the city in enacting the ordinance at issue.

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

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

As such, in civil matters in which there is an allegation of negligence on the part of any driver involved based upon that driver's alleged use of a cell phone at the time of an accident in violation of a local ordinance, or a claim for punitive damages based upon such facts, this case of Commonwealth v. Steiner may serve to defeat such allegations.

Anyone desiring a copy of any of the above cases may contact the Pennsylvania Law Weekly Instant Case Service at 1-800-276-7427 and provide the PICS Case Number noted and pay a small fee.

Source:  Case Digests in June 14, 2011 Pennsylvania Law Weekly


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


Click here to view my other posts on the issue of cell phone use in auto accident matters: 

http://www.torttalk.com/search/label/Cell%20Phone%20Use

Latest Post-Koken Decision Out of Lackawanna County

On June 10, 2011, Judge Robert A. Mazzoni issued the latest Lackawanna County post-Koken decision on the issue of severance versus consolidation in the case of Richards v. McPhillips and Progressive Insurance Company, 2010-CIV-7020 (Lacka. Co. June 10, 2011, Mazzoni, J.).

A wrinkle in this case separating the facts from previous post-Koken cases on this issue is that there were punitive damages allegations asserted against the third party tortfeasor on the basis that the tortfeasor was operating his vehicle allegedly under the influence of heroin and/or as otherwise impaired.

As defense counsel for Progressive, I asserted the various reasons supporting a finding of a misjoinder of actions and a need for severance as set forth in the various post-Koken cases that have come down before. It was additionally emphasized that Progressive, as the UIM carrier in this matter, would be prejudiced at trial by the danger of an increased verdict from a jury inflamed by the tortfeasor’s allegedly driving under the influence of heroin and/or other substances. Nevertheless, being aware that the majority rule in Lackawanna County was in favor of consolidation, we advised the court that we were not opposed to the case remaining consolidated for discovery purposes and that our focus was primarily on securing a severance of the claims for trial purposes.

In his decision in Richards, Judge Mazzoni provided a nice summary of the case law to date and additionally relied upon Judge Terrence R. Nealon’s recent and thorough decision in this regard in the case of Bingham v. Poswistilo and Erie Insurance, 2010-CIV-6026 (Lacka. Co. April 8, 2011, Nealon, J.), to come to a ruling that this case will remain consolidated for purposes of discovery.

Judge Mazzoni noted in his opinion that the fact that the Plaintiff has alleged a claim for punitive damages against the third party tortfeasor did not require a change the result. The court felt that the claims against the tortfeasor and the UIM carrier are separate and distinct and, “[i]n in carefully managed trial, the Trial Judge can minimize and/or eliminate the potential for prejudice or confusion.”

However, Judge Mazzoni did agree to leave the door open for a bifurcation of the third party negligence claims and the UIM claims at the time of trial. Judge Mazzoni concluded his opinion with the following paragraph:

“It is important to note that this Court shares Judge Nealon’s concern over the scope of decisions in the post Koken cases.  It is important to note that the intent of this Court’s Memorandum and Order is simply to direct and guide the parties through the Pre-Trial stage. This opinion is not intended to strip the trial
judge of his or her discretion. Accordingly, for purposes of trial, this opinion should only be instructive and not binding upon the Trial Judge. This Court will defer to the judgment of the Trial Judge who may avail himself/herself to a variety of options including severance as comprehensively discussed in Judge Nealon’s decision in Bingham.”


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

Tuesday, June 14, 2011

It Is Still Possible to Have a Case Dismissed for Inactivity (Judgment Non Pros)

In the 11 year old case of Pagnotti v. Louis Pagnotti, Inc., 2000 - CV - 566 (Lacka. Co. June 1, 2011 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas applied the factors set forth in the Pennsylvania Supreme Court case of Jacobs v. Halloran, 710 A.2d 1098 (Pa. 1998), to grant a defendant's motion for entry of a judgment of non pros due to inactivity in the claim.

This 11-year-old case was filed in February 2000.  According Judge Minora's Opinion, after some docket activity through August of 2001, there was a three year gap in docket activity through June of 2004. 

A second period of docket activity lasted only three months.  Thereafter, from August 2004 through December 2009, there was no activity in the case.

Later, in March of 2010, the court permitted counsel for plaintiff to withdraw based on plaintiff's lack of payment for legal bills.

In April 2010, defendants filed this motion to dismiss for inactivity and for entry of judgment of non pros. An attorney entered his appearance for plaintiff and filed objections to the request for a dismissal.

The defendants asserted that the plaintiff had failed to diligently prosecute this case, which resulted in prejudice. The defendants argued that for over seven years of the life of the file, there had been no activity of any kind.  It was additionally asserted that the Complaint was based upon events that had occurred between 14 and 21 years ago.

The plaintiff's new attorney argued that any docket inactivity was caused by prior counsel and also made an unsupported allegation that defendants were not prejudiced by the delay.

In May 2010, the court allowed limited discovery on the non pros issue. The court then determined that this "ancient case" had been delayed yet another year and was overly ripe for disposition.

Judge Minora noted that the case of Jacobs v. Halloran , 710 A.2d 1098 (Pa. 1998), established three elements that must be met for a judgment of non pros to be properly entered to terminate an inactive case. First, plaintiff failed to proceed with reasonable diligence.  Second, there was no compelling reason for the delay. Third, plaintiff's delay caused actual prejudice to defendants.

Finding that the defendants met the elements of this test, the court granted defendants' motion for entry of judgment non pros due to inactivity.

Source: Case Digests in June 14, 2011 Pennsylvania Law Weekly


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

Judge Terrence R. Nealon of Lackawanna County Addresses Lay Witness Testimony on Speed, Delay Damages, and An Issue I Bet You've Never Seen Before

In his recent decision in the case of Hodin v. Frekey, No. 2007 - CV - 1504 (Lacka. Co. June 9, 2011 Nealon, J.), Judge Terrence R. Nealon addressed three issues--a standard auto law issue, a second issue so unique John Grisham probably couldn't have come up with it, and a third issue pertaining to a claim for delay damages after a verdict.

The auto law issue concerned the question of whether a plaintiff who introduced lay testimony regarding the defendant's speeding was required to also introduce expert testimony to establish a causal connection between the speed of the defendant's vehicle and the accident. 

On this issue, the defense filed a Motion for Judgment Notwithstanding the Verdict on the causation question.  Judge Nealon denied this post-trial motion and ruled that Plaintiff introduced sufficient lay testimony and circumstantial evidence establishing that defendant’s speeding was a factual cause of the accident.  

The court found that it was therefore unnecessary for the Plaintiff to present expert testimony to establish that causal connection since that causation determination involved a matter within the jurors’ common understanding and experience. 

Therefore, the defendant’s request for JNOV was denied.  This case supports the proposition that properly presented lay witness testimony on the speed of vehicles involved in a motor vehicle accident can be admissible at trial in the absence of related expert testimony.

The other issue involved an issue related to the jury selection process in the case.  According to Judge Nealon's Opinion, after a prospective juror was dismissed from the matter after not having been selected, she thereafter contacted the office of defense counsel in the case near the end of the first day of trial to advise that her daughter was an acquaintance to the Defendant.  The dismissed juror also noted that she herself was actually a witness to the subject accident and could offer information beneficial to the defense on the liability issues.  This information was never disclosed by the prospective juror during the voir dire proceedings.

Accordingly, the defense made a request to add the new witness to the defense's witness list.  Plaintiff's counsel objected on the grounds of late notice and given that the Plaintiff's witnesses had already testified and had been released from their subpoenas to attend trial. The court also noted that Plaintiff's attorney had emphasized information on the liability witnesses known during his opening statement that stated that there were no other witnesses that could speak to the facts of the accident.

At trial, Judge Nealon ruled that the prejudice to the Plaintiff would be insurmountable  if the prospective juror were allowed to testify as a witness.  The court reasoned:

"I can’t think of any greater prejudice for your adversary in this case than to have already opened and told the jury who all the witnesses were and told the jury what those people would say, and then be in a position where we’re down to the final witness in the case and have to suddenly say to the jury “I was wrong,…this other witness surfaced yesterday, and oh, by the way, you might recognize her, she was a member of the jury panel.”

As such, Judge Nealon denied the defense request to call the dismissed juror as a witness and, in this Opinion on the post-trial motions, offered further support for this decision.

Judge Nealon's Opinion is also notable for his pointing out that the Plaintiff's request for Rule 238 Delay Damages would be granted, in part, because the defense never made a written settlement offer prior to trial.  A reading of Rule 238 reveals that a Plaintiff's request for delay damages could be impacted where the defense has made a written offer that comports with the language required in such a written offer by the Rule.


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

Sunday, June 12, 2011

Federal Middle District Allows Bad Faith Claim to Proceed on Basis of Invalid Rejection of UM Form

In the case of Grassetti v. Property & Casualty Insurance Company of Hartford et al., No. 3:10-cv-2068, 2011 WL 1522326 (M.D. Pa. Apr. 20, 2011), Judge James M. Munley held that a policyholder who signed a form rejecting uninsured motorist coverage could move forward with his bad faith claim because 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 of 2007 motor vehicle accident.  As the driver of the other vehicle was never identified, an uninsured motorist claim was pursued by the injured party.  Coverage was denied by the UM 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. § 1731(b), pertaining to the content of the rejection of coverage form.

Citing the rejection form signed by the injured party, the carrier moved to dismiss the bad-faith claim. Generally speaking, under Pennsylvania law, although uninsured motorist coverage is optional, an insured must sign a rejection form that uses language specified in the statute in order to waive such coverage.

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.”

The court noted that 75 Pa.C.S. Section 1731(c)(1) states, in pertinent part, that "[a]ny rejection form that does not specifically comply with this section is void."

The court accepted the Plaintiff's citation of American Int'l Ins. Co. v. Vaxmonsky, 916 A.2d 1106 (Pa.Super.2006), in which the Pennsylvania Superior Court held that an insurer's underinsured motorist (“UIM”) coverage waiver was null and void for failure to comply with Section 1731(c) of the MVFRL.

For purposes of motion to dismiss standard of review at issue in this Grassetti case, the court found Vaxmonsky persuasive on the issue of interpreting the specific compliance requirements of Section 1731(c)(1). 

Judge 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.

I send thanks to Attorney Brian Bevan of the Pittsburgh law firm of DiBella, Geer, McAllister & Best, P.C. for advising me of this recent decision.

Thursday, June 9, 2011

Inspirational Speech by Judge Thomas I. Vanaskie of U.S. Third Circuit Court of Appeals

United States Third Circuit Court of Appeals Judge Thomas I. Vanaskie was the Keynote Speaker at the Lackawanna Bar Association's Interfaith Prayer Service on Friday, May 13, 2011, and his words were inspirational. For those of you not able to attend, below is a copy of Judge Vanaskie's remarks:



Good afternoon. It is an honor to be here with you at the annual Interfaith Prayer Service and to be with my colleagues on the Federal and State Courts for whom I have much admiration.

“Fall in love, stay in love, and it will decide everything. Love will decide what will get you out of bed in the morning, what you will do with your evenings, how you will spend your weekends, what you read, who you know, what breaks your heart and what amazes you with joy and gratitude.” Words of advice, not from Tom Vanaskie, but from Father Pedro Arrupe, and they are indeed sage words. Look at your experiences, from childhood to adulthood, and you will see how love has pervaded your being, from children at play, to teens experiencing first relationships, to marriage, to bringing up children, to your interactions with nieces and nephews, to how you love and are loved by your grandchildren.

And of course, this power of love transcends individual relationships. Those fortunate to be able to pursue a profession or vocation they love do not consider themselves at work. They don’t count the hours or watch the clock, and they are fulfilled by pursuit of their love. Not many, of course, are blessed with the ability to earn a living pursuing something they love, so they turn to other endeavors, whether it is some sport, like running, or perhaps it is tutoring, gardening, cooking, or just taking care of others. They are engaged. They are the opposite of indifference.

There is a line from a movie that strikes me when I think of this subject of the power and meaning of love. An old, grizzly tough guy played by Robert Duvall gives this advice to a young boy. He said that “sometimes the things that may or may not be true are the things a person needs to believe in the most. That people are basically good; that honor, courage, and virtue mean everything; that power and money mean nothing; that good always triumphs over evil;” and then he said, “I want you to remember this, that love…true love never dies.” He concluded that a person should believe in those things because those are the things that are worth believing in.

If you want to do good in this crazy society of ours, you must have those beliefs: that honor, courage, and virtue mean everything, and that people are basically good, and that good always triumphs over evil. America was built upon dreamers with such beliefs. We have had our share of bad and evil people. They are usually the cynics. They prey on vulnerabilities and judge on appearances. They are opinionated and judgmental. But those who share those things that are worth believing in are slow to judge, assist the vulnerable, and are optimists.

In a novel a great friend recommended to me, The Shack, a father whose four year old daughter is abducted, sexually assaulted and murdered without her body being recovered has lost his faith in a benevolent deity. The book is one of redemption of the soul as the dad returns to the shack where it is believed his daughter was murdered ten years after she went missing. There he encounters God, or as this book is written from a Christian perspective, the three persons in one God. The book contains some pearls of wisdom that are agnostic, but reflect this power that love creates. One passage I particularly think is compelling goes as follows, “relationships are never about power…one way to avoid (taking advantage of power) is to choose to limit oneself – to serve. Humans often do this in touching the infirmed and sick, in serving the ones whose minds are left to wander, in relating to the poor, in loving the very old and the very young.”

We see so many examples of love prodding a person to limit himself or herself. Justice Sandra Day O’Connor left the Supreme Court to spend time with her husband, stricken with Alzheimer’s. I saw Ruth Davies limit herself in caring for her daughter, Julia. Indeed, each and every person has at one time or another limited himself or herself as part of a true relationship.

In the words of the God figure in The Shack, “you choose to limit yourself so as to facilitate and honor that relationship. You will even lose a competition to accomplish love. It is not about winning and losing, but about love and respect.”

This limitation of oneself to build enduring relationships shows that we are all, to use a phrase close to the heart of Sondra Myers, interdependent. We have a mutual need for the talents, intellect, and hard work of each other.

Another book I read in the more distant past on the recommendation of my children was the Life of Pi. It approaches the mysteries of life and our existence through the lens of different major religions. But each religion has come to the “realization that the founding principle of existence is what we call love, which works itself out sometimes not clearly, not immediately, but nonetheless ineluctably.”

Ultimately, the work we do in the law must be premised upon those things worth believing in and on love for our fellow human beings. Those who embrace this value system recognize that we are truly interdependent and not independent creatures. And pursuing this approach often necessitates a limitation of oneself. Consider a couple examples, one historical and one current.

In 1797, John Adams, became our nation’s second President and the first of many lawyer-presidents. He was also a courageous defender of those he thought unjustly accused and the man who first penned the famous phrase, “a government of laws and not of men.” But let’s go back to 1770, 27 years before Adams became President and five years before the Revolutionary War began.

Adams was in Boston, already a leader in Massachusetts Colony’s growing resistance to British rule and especially British taxes. By 1770, Boston had about 20,000 residents plus 4,000 British soldiers sent to keep order among those unruly colonists and to collect those taxes. Tensions ran high. Late one cold winter evening, March 5, 1770, protesters gathered downtown, near a small group of soldiers. Things got loud and confusing and suddenly the soldiers shot into the crowd. Five civilians died (the Boston Massacre). The public was incensed. The atmosphere in Boston was poisonous. John Adams’ cousin, Sam Adams, one of the leaders of the Colonists, called the killings a bloody butchery and distributed a print published by Paul Revere vividly portraying the scene as a slaughter of the innocent, an image of British tyranny that would become fixed in the public’s mind.

The soldiers and their leader, Captain Tom Preston, were arrested for murder. But some people called it a riot, not a massacre, saying the soldiers had been threatened and pelted with rocks, snowballs and the like. The following day 34 year old John Adams was asked to defend the soldiers and their captain when they came to trial. No one else would take the case.

Even though John Adams was a leader in the resistance to British rule, he believed these Brits (Preston and his soldiers) deserved a defense, and he gave them a fine one. He won acquittal of the Captain by convincing a jury that the officer had not ordered his troops to fire. He defended the soldiers on grounds of self defense against a mob. Six were acquitted, two others convicted of manslaughter. The trial was the first time a judge used the phrase “reasonable doubt,” a concept our courts later found inherent in the phrase “due process of law.”

Taking their cases was a very unpopular act. During the trial, threats were made on his life and his family. John Adams’ defense in the Boston Massacre trials was a courageous example of adherence to the rule of law and defense of the rights of the accused. It showed his love for justice and, by the way, his Country. Years later, John Adams wrote that this defense, in light of so much public scorn, was one of the finest things he’d ever done for his Country.

That love for justice and adherence to the rule of law is never more important than when advocates represent unpopular clients in times of heated public controversy and times of turmoil.

Many lawyers have volunteered to test the rules of detention of Guantanamo Bay detainees and get the prisoners access to counsel and to some process and some Supreme Court rulings. In fact, of the50 largest law firms in the United Sates, at least 34 have either represented detainees or filed amicus briefs in support of detainees.

Many of these lawyers and their law firms have been attacked by leaders in the other two branches of our government. As an example, a high ranking Pentagon official in 2007, after reciting the names of some of these law firms said, “I think, quite honestly when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”

Many of these same lawyers went to work in the Department of Justice. Members of Congress have questioned whether they should be employed by the Department after their work on behalf of detainees. At an oversight hearing, Attorney General Holder, in April of 2010, was asked by a member of the judiciary committee:

Question: So a very simple yes or no question: would you provide the names of political appointees at the department who have previously represented detainees or advocated on detainee issues?


Holder: With all due respect, Senator, and I know that your request comes from what I will call a good place. Yours was an honorable request. And the hesitance that I had, I think has been borne out by what I have seen. There has been an attempt to take the names of the people who represented Guantanamo detainees and to drag their reputation through the mud. There were reprehensible ads used to question their – in essence to question their patriotism. I’m not going to allow these kids – I’m not going to be part of that effort. And so with all due respect, their names are out there now, and the positions that they hold are out there. That’s all been placed in the public record; I am simply not going to be a part of that effort. I will not allow good decent lawyers who have followed the greatest traditions of American Jurisprudence, done what John Adams, done what our Chief Justice has said is appropriate, I will not allow their reputations to be disparaged. I will not be part of that.


So as you can see, John Adams’ legacy continues to inspire lawyers to this day. The lawyers of today, just as John Adams, are dreamers and believers in those values worth believing in; that the rule of law must predominate in tumultuous times, that virtue, honor and courage are everything, and that the good will ultimately triumph over evil by remaining good.

As former Supreme Court Justice Sandra Day O’Connor warned in the 2004 decision of Hamdi v. Rumsfeld, a case that involved an American citizen who was detained as an enemy combatant, “it is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested, and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”

Lawyers are called to follow in Adams’ footsteps, and it’s not easy. The practice of law is not a popularity contest. Rather, it is a noble profession whose aim is to do what’s right on the evidence and under the law, in spite of popular sentiment at any given time. It can involve great sacrifice, but the costs to the nation and the world, would be far greater were we to lose these ideals. Those of us who have fallen in love with this profession certainly understand that.


Thank you.

Wednesday, June 8, 2011

Choice of Laws Decision Issued by Judge Caputo of Pennsylvania Federal Middle District Court

In the case of Flickinger v. Toys R Us, Inc., No. 3:10-CV-305 (M.D.Pa. May 31, 2011, Caputo, J.), the court provided a detailed Choice of Laws analysis and ultimately concluded that a Pennsylvania Plaintiff's claims filed in a Pennsylvania federal court should be governed by New York law.

The Plaintiff, Mary Beth Flickinger ,claimed that she sustained injuries to her cervical spine when a bin filled with M&Ms fell on her at a Toys R Us store in Times Square, New York City.  The Plaintiff presented a substantial loss of future earning capacity claim as part of the case.

Judge Caputo's decision addresses a number of pre-trial motions in limine and is his opinion is notable with respect to the Plaintiffs’ Motion requesting the Court to apply Pennsylvania law on damages and liability to this case.

As indicated, the Toys R Us store was in NYC and that company was incorporated in Delaware.  According to the Opinion, the Plaintiffs resided and worked in Pennsylvania.  Also, the Plaintiff's medical providers were in Pennsylvania as well.

After presenting a detailed description of the Choice of Laws analysis, Judge Caputo ruled that the more conservative New York damages law should be applied.  Should you have this issue come up, this case may be a good one to kickstart your legal research on the question presented.

The prevailing defense attorneys include Tony Trozzolillo, Dan Stofko, Lauren Dobrowalski, Judy Moses, and Jamie Lenzi of the law firm of Cipriani & Werner.

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

Recent Cases of Note on Various Civil Litigation Issues

In the case of Silver v. Thompson, PICS No. 11-0950 (Pa.Super. May 27, 2011 Lazarus, Bender, Strassburger, JJ.)(Opinion by Lazarus, J.), the Pennsylvania Superior Court reversed a Philadelphia County trial court ruling that venue in Philadelphia was improper when a defendant had been served personally in Philadelphia.

The trial court judge had granted the Defendant's preliminary objections to venue within Philadelphia in a car accident case because the underlying car accident occurred in Bucks County, all the litigants reside in Bucks County and the witnesses are located in Bucks County.  The trial court judge transferred venue to Bucks County.

According to the Opinion, the Defendant had been personally served with the Complaint at her workplace in Philadelphia.

The Superior Court, however, pointed to Pennsylvania Rule of Civil Procedure 1006, which provides that venue is proper in the county in which the individual may be served.  The appellate court also noted that Pennsylvania Rule of Civil Procedure 402(a) allows for an individual to be served by handing a copy to the defendant or by handing a copy at any usual place of business of the defendant.

While the trial court judge had ruled that the Defendant had to be served at her place of business for venue to be proper in Philadelphia, the Superior Court instead found that Rule 402(a) "clearly states that service may be effected by 'handing a copy to the defendant.'"

According to an article on the case by Amaris Elliott-Engel in the June 9, 2011 Legal Intelligencer, the case of Silver v. Thompson was originally issued as an unpublished memorandum April 27, and was then issued as a published opinion May 27.

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In the recent case of Bloomer v. Ford Motor Company, PICS Case No. 11-0854 (Pa. Super. May 6, 2011) Allen, J.; Shogan, J., concurring and dissenting), the Pennsylvania Superior Court addressed the novel issue of the admissibility of remedial measures taken before an accident occurred in products liability cases.

The Bloomer case involved a Plaintiff who was employed as a tow truck driver who was killed while in the process of towing another vehicle when his truck ran over him. The injured party alleged that Ford’s defective design of the parking brake caused it to disengage. A jury eventually entered a verdict in favor of the Plaintiff’s estate in excess of $10 million dollars after the original amount was molded to add delay damages.
On appeal, the Ford Motor Company argued, in part, that the trial court erred in admitting evidence of design changes in the Ford truck’s brake system, claiming that the designed changes were in admissible as subsequent remedial measures.

The Plaintiff Superior Court disagreed and noted that the design changes at issue were contemplated by Ford prior to the Plaintiff’s accident. Although the design changes may have been considered “remedial measures,” the court found that the plain language of Pa. R.E. 407 only restricts the introduction of remedial measures that were made after the subject injury or harm. As such, Pennsylvania Superior Court concluded that changes in design that were devised prior to the subject accident were not barred as a subsequent remedial measure.

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Another case that has been touted as one of the most requested Opinions recently in the Pennsylvania Law Weekly Instant Case Service is the Decision of Touchete v. Weis Markets, Inc., PICS Case No. 11-0713 (Monroe Co., March 3, 2011, Worthington, J.) in which the Monroe County Court of Common Pleas ruled that a Defendant’s Motion for Summary Judgment should be granted under the argument that a Plaintiff assumed the risk of her injury when she knowing and voluntarily walked over snow and ice.  This cases supports the argument that the assumption of risk defense remains alive and well in Pennsylvania.

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In the recent Federal Middle District Court case of M.S. v. Secret Bridge Mil. Acad., No. 1:08-CV-2271 , PICS Case No. 11-0912 (M.D.Pa. May 13, 2011 Carlson, M.J.), Magistrate Judge Carlson ruled that, under the Federal Rules of Civil Procedure 35, the Plaintiff's attorney is not permitted to be present at a psychiatric examination of a minor party in a negligence action filed by parents on behalf of the minor plaintiff.

The Court in M.S. additionally ruled that the parents of the minor could not be compelled to participate in interviews as part of that psychiatric examination of the child.


Here's a link to other posts on Tort Talk regarding psychiatric IME issues: 

http://www.torttalk.com/search/label/Independent%20Psychiatric%20Examinations




Anyone desiring a copy of any of the above cases may contact the Pennsylvania Law Weekly Instant Case Service at 1-800-276-7427 and provide the PICS Case Number noted and pay a small fee.

Source:  Pennsylvania Law Weekly Digests (May 31, 2011)// Legal Intelligencer (June 9, 2011)

Pennsylvania Association For Justice Hosting a Retreat (CLE Seminars) in Philadelphia - June 23-26, 2011

The Pennsylvania Association for Justice is hosting 4 CLE Seminars in Philadelphia at its Annual Retreat on June 23-26, 2011 at The Westin Philadelphia.

These programs are for both plaintiff and defense lawyers and include the following:


--“Ethics 2011”

--“A Conversation with Tom Kline” -- an informal discussion with one of PA’s preeminent lawyers, Tom Kline, on what he has learned over the years

--“Tort Roundtable”—trial lawyers from around the state give a quick update on the latest in ten different areas of practice

--Judge Andrew Napolitano, Senior Judicial Analyst for Fox News, will discuss “Do We Still Have a Constitutions?”


Call the PAJ office at (215) 546-6451 to register today.  You can register for the entire package or separately pick and choose seminars to attend.  Here is a link to the PAJ ad on the event:

http://www.pajustice.org/temp/ts_7021F684-BDB9-505B-D846F009F8F82A347021F694-BDB9-505B-D112EC00972F7A04/3pageRetreatFlyer.pdf

Pennsylvania Defense Institute CLE Seminar - Pittsburgh - June 23, 2011

PENNSYLVANIA DEFENSE INSTITUTE

Presents

“Key Insurance Law Developments 2011”

(3 Substantive CLE Credits)


Sheraton Station Square Hotel

Pittsburgh, Pennsylvania

Thursday, June 23, 2011



1:00 – 1:30 PM Registration


1:30 - 1:50 PM “Tort Reform Update”

Timothy Bittle
Bigley & Blikle


1:50 – 2:30 PM “Auto Law Update”

Thomas McDonnell, Esq.
Summers, McDonnell, Hudock, Guthrie & Skeel



2:30 – 3:10 PM “Uninsured/Underinsured Motorist Law Update”

Craig Murphey, Esq.
MacDonald, Illig, Jones & Britton



3:10 – 3:25 PM Break


 
3:25 – 4:05 PM “Insurance Bad Faith Law: Update”

Robert Dapper, Esq.
Dapper, Baldasare, Benson, Behling & Kane

Daniel Rivetti, Esq.
Robb, Leonard & Mulvihill



4:05 – 4:45 PM “Civil Practice & Procedure”

Scott Millhouse, Esq.
Meyer, Darragh, Buckler, Bebenek & Eck


 
Costs for the event:

• CLE program for lawyers $125.00

• All others $25.00


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

 

Name(s)_____________________________________

___________________________________________


Firm/Company__________________________________

____________________________________________



Make checks payable to:

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


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

Tuesday, June 7, 2011

Article on Discovery of Social Media Information

Tort Talkers may recall that I recently wrote on the first social media discovery decision in Pennsylvania in the McMillen v. Hummingbird Speedway Inc. case out of Jefferson County.  Here's the link to that post:   http://www.torttalk.com/2010/10/article-new-discovery-battlefield.html.   

Below is my recent article from last week's Pennsylvania Law Weekly providing an update on the Pennsylvania trial court decisions that have come down on this issue since.  Anyone needing a copy of the Pennsylvania decisions referenced may contact me at dancummins@comcast.net.


Civil Practice



To Friend or Not to Friend?
Trial courts split on how to handle social media discovery requests

by

Daniel E. Cummins


The Legal Intelligencer/Pennsylvania Law Weekly


May 31, 2011

An emerging issue in Pennsylvania civil litigation personal injury matters is the extent to which one party may gain access to information on an opposing party's social networking site such as Facebook or MySpace.

On the plaintiff's side, an argument can be made that postings on such sites are protected by expectations of privacy. On the defense side, it is asserted that such postings are made with the knowledge that they may not necessarily be private and also that the allowance of such discovery would further the overriding goal of civil trials of searching for the truth on the claims and defenses presented.

A Decision Against Disclosure

According to a May 17 article by Gina Passarella in Pennsylvania Law Weekly , Bucks County Common Pleas Court Judge Albert J. Cepparulo recently issued a one paragraph order in Piccolo v. Paterson, in which he denied a defendant's motion to compel the plaintiff to allow the defense access to the plaintiff's Facebook page.

According to the article, the plaintiff in Piccolo was injured as a result of a motor vehicle accident during which she was hit in the face with the airbag and suffered significant lacerations to her lip and chin. The plaintiff required 95 stitches to her face in the emergency room on the day of the accident and then had scar revision surgery thereafter along with several laser treatments to reduce the scarring. According to the court filings, the plaintiff was permanently scarred on her face.

The article notes that, following the accident, the plaintiff allowed the defense carrier to come to her home about a year after the accident and take a number of photographs of her face.

During the course of this litigation, the plaintiff had also provided the defense with 20 photos of her face that were taken about a week following the accident. Also provided were five photos from the months just before the accident.

The article also states that the plaintiff additionally allowed the defense to take even more pictures at the plaintiff's September 2010 deposition.

In Piccolo, the defendants wanted access to other photos of the plaintiff that the plaintiff had posted of herself on Facebook. At her deposition, the plaintiff was asked about the Facebook account and defense counsel inquired whether could send a "neutral friend request" to the plaintiff so that he could then be granted access to the plaintiff's Facebook postings that the plaintiff testified she made everyday.

The plaintiff denied this request but, according to the defense filings on the motion to compel, indicated that at the deposition that her status updates and pictures were available for public viewing and that she would not make them private.

However, according to the defense filings, when the defense went to the plaintiff's Facebook page, those postings were private and only available to the plaintiff's friends. This prompted the defense attorney to follow up with a letter to the plaintiff's attorney requesting the plaintiff to accept a friend request from the defense. When that was denied, the motion to compel followed.

In support of its argument for access to the Facebook page, the defense cited the September 2010 Jefferson County trial court opinion of McMillen v. Hummingbird Speedway Inc., in which that court held that Facebook postings were discoverable and ordered the plaintiff to provide his username and password to the defense.

In opposition to the motion to compel, the plaintiffs argued that, contrary to the situation in the McMillen case, the defense counsel had only inquired about pictures posted on Facebook and not any textual postings. The plaintiffs also argued that the defense had already been provided with as complete a photographic record of a comparison of the plaintiff's pre-accident condition versus her post-accident condition as the defense could reasonably have a right to expect under the circumstances presented.

After hearing argument on the issue, Cepparulo issued his one-paragraph order in Piccolo denying the motion to compel. According to the article, it did not appear that the defense intended to appeal the decision in Piccolo.

It appears from the article that the focus of the plaintiff's injuries in Piccolo were on her facial scarring injuries as opposed to musculoskeletal injuries and the impact of those injuries on the plaintiff's activities of daily living. As set forth in the article on the case, the judge in Piccolo may have agreed with the plaintiff's contention that the defense request for access for even more photos of the plaintiff's face from her Facebook page was overkill.

A Decision In Favor of Disclosure

This is to be contrasted from the situation in McMillen where there was reason to believe that the plaintiff's Facebook page might offer relevant evidence that would serve to contradict the plaintiff's contentions of limitation in his activities of daily living as a result of his accident-related injuries.

McMillen involved a plaintiff who filed suit to recover damages for personal injuries allegedly caused when a defendant rear-ended the plaintiff's vehicle during a cool down lap following a 2007 stock car race.

During discovery, the defendant Hummingbird Speedway Inc., in its interrogatories inquired if the plaintiff belonged to any social networking computer sites. The defendant also requested the name of the site, the plaintiff's user name, login name, and password.

In this case, the plaintiff belonged to Facebook and MySpace but maintained that his user name and login name information were confidential and should not have to be provided.

In viewing the public portion of the plaintiff's Facebook page, the defendant noted comments evidencing that the plaintiff had gone on a fishing trip and had attended the Daytona 500 race in Florida.

When the plaintiff refused to fully respond to the written discovery requests pertaining to information on social networking sites of the plaintiff, the defendant filed a motion to compel the discovery desired.

The trial court noted that a party may obtain discovery regarding any information that is relevant and not privileged. The plaintiffs requested the court to find the communications shared among one's private friends on a social networking site to be confidential and, therefore, protect it from disclosure. Jefferson County Common Pleas Court President Judge John H. Foradora noted that no binding or persuasive authority was cited by the plaintiff.

Foradora additionally noted that evidentiary privileges are not favored under Pennsylvania law and should be narrowly construed.

The court found that the plaintiff did not satisfy the requirements to support a finding of privilege in this matter. The judge emphasized in his opinion that these communication websites expressly noted the possibility of disclosure.

The court in McMillen therefore found that a person using these sites could not reasonably expect that the communications would remain confidential. As the information contained in the plaintiff's pages may be relevant in proving the truth or falsity of the plaintiff's alleged injuries, the court found that the overriding goal — the search for truth in civil trials — should prevail in favor of the disclosure of information that may not have otherwise been known.

Accordingly, Foradora held that where a person's social networking sites contain information that may be relevant to the claims or defenses presented in a lawsuit, access to those sites during discovery should be freely granted.

As such, Foradora ordered the plaintiff to produce his Facebook and MySpace user names and passwords. The plaintiff was further ordered not to delete or alter any of the information on the accounts.

McMillen Followed

According to a May 24 article by Passarella in The Legal Intelligencer , the Jefferson County decision in McMillen was recently followed by Northumberland County Common Pleas Court Judge Charles H. Saylor in the case of Zimmerman v. Weis Markets Inc.

In Zimmerman, the plaintiff was suing his former employer for pain and suffering, scarring, and wage loss damages after he injured his leg in a forklift accident while working.

At his deposition, the plaintiff testified that he had not worn shorts since his accident because he was embarrassed by the scar on his leg from the accident. However, according to the court's opinion, the plaintiff was depicted in his public MySpace pictures wearing shorts with his scar visible. The plaintiff also posted pictures of himself with his motorcycle and discussed riding motorcycles elsewhere on his social media sites.

The defense filed a motion to compel discovery of the private portions of Zimmerman's Facebook and MySpace pages. In the motion, the defense sought discovery of the plaintiff's passwords, user names and login names. Relying on the Jefferson County decision in McMillen, the defense argued there may be relevant information as to the plaintiff's damages claims on the private portions of those pages.

The plaintiff asserted that his privacy interests outweigh the need to obtain this discovery material from the social networking sites. As an alternative argument, the plaintiff also requested that the court conduct an in camera review of the plaintiff's sites to determine what, if any, information should be produced in discovery.

Saylor rejected the request for an in camera review of the information as creating an undue burden on the court system in this emerging area of the law.

Saylor also decided to follow the ruling in McMillen and 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 non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal."

As such, the defense motion to compel discovery of the plaintiff's social networking sites was granted.

Social Networking Litigation Strategies

Written discovery requests and deposition questions pertaining to a party's social networking activities are becoming the norm in Pennsylvania civil litigation matters. It can be expected that more and more trial court decisions will be generated on this topic to further clarify the parameters of this type of discovery. As can be seen above, the current trend is in favor of the discovery of such information.

Also, as to other litigation strategies in this regard, I have seen recommendations that counsel secure a "litigation hold" court order against an opposing party in a lawsuit in order to prevent that other party from deleting any postings that post-date the subject accident from his or her Facebook page during the pendency of a litigation.

Should it be determined that a party has deleted or changed information on a social networking site after the institution of a lawsuit, it may be that spoliation of evidence issues may also arise. In such scenarios, it may come to be that the party seeking the deleted information may be entitled to an adverse •  inference jury instruction at 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 www.torttalk.com.