Thursday, November 29, 2012

Assumption of Risk Defense Still Viable in Pennsylvania

In its recent decision in the case of Longwell v. Giordano, 2012 Pa.Super 245 (Pa.Super. Nov. 8, 2012)(Bender, Donohue, and Strassburger, J.J.)(Opinion by Strassburger, J.), the Pennsylvania Superior Court refused a plaintiff's request to abolish the assumption of risk doctrine.  The court noted that the abolition of a recognized doctrine was not within the purview of the Superior Court's authority.

However, the Longwell court did go on to reverse a Lawrence County trial court's entry of summary judgment in favor of a defendant in a trip and fall case.  The defense asserted that the Plaintiff had assumed the risk of danger in walking along a driveway under pitch black night time conditions when the Plaintiff knew that the driveway had a slight drop off. 

The Superior Court reviewed the record and found that, while the Plaintiff was aware of the dangers presented, the Plaintiff proceeded cautiously and took measures to protect himself but still unfortunately fell.  Thus, the Court believed that there were issues of fact to be decided by a jury.  As such, the entry of summary judgment in favor of the defense was reversed.

In so ruling the court also noted that, under the different test of liability found under the Restatement (Second) of Torts, Section 360, applicable in a case of a lessee versus a landlord for personal injuries in a slip and fall matter, a landlord remains liable to injuries sustained by a tenant in a common area of the premises controlled by the landlord even if the tenant was aware of an allegedly defective condition.  As such, the assumption of risk defense is limited by Section 360 of the Restatement (Second) of Torts in this landlord-tenant context.

Anyone desiring a copy of this decision may click this LINK.

Luzerne County Local Rule Streamlines Motion to Compel Discovery Process

The following reminder of a recent new Luzerne County Local Rule pertaining to, and streamlining, Motions to Compel Discovery was highlighted in the Luzerne Register:


208.3(b) Alternative Procedures

Cite Rule as: Luz. Co. R.Civ.P.208.3(b)

A Motion to Compel Answers to Interrogatories and/or Responses to Request For Production of Documents, where no objections have been filed, shall be submitted to the Motions Judge along with a proposed Order requiring the opposing party to provide full and complete answers within thirty (30) days or suffer such sanctions as the Court deems necessary.

Notice of Intention to Present the Motion to Compel must be provided to all parties of record not less than three (3) business days prior to the date of presentation and must be attached to the Motion. A brief in support of the Motion shall not be required.

Adopted: 05/15/2012

Effective: 08/15/2012

Wednesday, November 28, 2012

Superior Court Addresses Parameters of Warranty of Habitability

In what some are calling a case of first impression, the Pennsylvania Superior Court ruled in its November 5, 2012 Opinion in the matter of Conway v. Cutler Group, Inc., 2012 Pa. Super 242 (Pa. Super 2012 Musmanno, Mundy, J.J., and McEwan, P.J.E.)(Opinion by Mundy, J.), that home buyers who are not the original owners, purchasers, or users of a home may still bring an implied warranty of habitability claim against the builder of the premises if defects are discovered.

The Superior Court panel unanimously rejected the trial court’s decision which had dismissed the Plaintiff’s claim in this regard against the builder on the basis that there was no privity of contract.

The Superior Court ruled that, because the doctrine of implied warranty of habitability applies to “defects which would not be apparent to the ordinary purchaser as a result of a reasonable inspection,” the issue of whether or not the current home owner was the original purchaser or not was “immaterial.”

The court also noted that a “second or subsequent purchaser is entitled to the same assurances as the original purchaser that the home the builder has constructed is habitable for human living.” This is particularly so because, as noted by the court, “the builder is the party with the ‘necessary expertise’ that the initial purchaser does not possess” in terms of finding latent defects.

The Conway court otherwise indicated that, under the implied warranty of habitability cause of action, the homeowner must still show that the “…alleged defect is latent, attributable to the builder’s design or construction, and affects habitability.” The court also noted that “all homeowners must still bring their claims within the 12-year period set out by the statute of repose.”

Anyone desiring a copy of this decision may click this LINK.

Source of

Pennsylvania Supreme Court Allows for Direct Corporate Liability in Nursing Home Case

The Pennsylvania Supreme Court recently handed down a decision on November 21, 2012 in the the nursing home case of Scampone v. Highland Park Care Center, No. 16 WAP 2011 (Pa. 2012)(Opinion by Castille, C.J.) in which the court held that both nursing home facilities and their parent corporations were subject to potential direct liability in negligence claims.

The issue before the Supreme Court was whether the corporate negligence theory applied to a skilled nursing facility and the healthcare company responsible for its operations.

By way of background, at trial, the lower court refused to allow the corporate parent to be held liable, but allowed the case against the facility itself to go forward.

The Superior Court reversed the finding as to no liability for the parent corporation, sent the case back to trial, and noted that the trial court may consider not only compensatory but also punitive damages. The appeal then went up to the Pennsylvania Supreme Court.

Upon review of the case, the Supreme Court held in Scampone that a nursing home and affiliated entities are indeed subject to potential direct liability for negligence where the requisite resident-entity relationship exists to establish that the entity owes the resident a duty of care. Accordingly, the Court affirmed the Superior Court in part, but for reasons that differed from the Superior Court, and remanded the case back to that court for further proceedings.

Therefore, under this decision, not only the nursing home facilities, but also their parent corporations, may be held directly liable for inadequate care and for deliberate misdeeds at the facilities.

This Opinion contains a detailed analysis of the difference between direct corporate liability and vicarious liability which obviously could serve to apply in other negligence cases involving corporations, such as medical malpractice, premises liability, or trucking cases, for example.

The Scampone decision can be viewed online HERE.

I send thanks to Attorney Paul Oven of the Moosic, PA law office of Dougherty, Leventhal & Price for bringing this case to my attention.

Tuesday, November 27, 2012

Monroe County Post-Koken Consolidation vs. Severance Issue Uncovered

In an Order handed down back on July 11, 2012 in the case of Cocuzza v. Castro, No. 406-Civil-2012 (C.P. Monroe Co. July 11, 2012 Zulick, J.), Judge Arthur L. Zulick came down on the side of consolidation of claims in terms of post-Koken matters when the Court denied the UIM carrier’s Preliminary Objections.

Judge Arthur L. Zulick
Monroe County
In his Opinion, Judge Zulick confirmed that there was no appellate decision on the issue presented of consolidation versus severance as of that date (and as of this date for that matter). The Court also noted that there was a split of authority and an arguable majority rule in favor of bifurcation at that point in time of July of 2012 when this Cocuzza decision was handed down.

However, Judge Zulick found that allowing the case to proceed through discovery in a consolidated fashion would save judicial resources and avoid unnecessary delay and expenses to the parties. Accordingly, Judge Zulick ruled in favor of consolidation and noted that his “decision is without prejudice to any party bringing an appropriate Motion to Sever or Bifurcate after discovery is complete and the case is ready to proceed to trial.”

This is the only reported decision I have come across to date out of Monroe County. If anyone is in possession of any other cases out of that county, or any other county that has not yet been reported here on Tort Talk, I would appreciate it if you could please let me know and provide me with a copy of the decision.  In this way, we can all work together to stay apprised as to the lastest status of the decisions on these novel Post-Koken issues.

Anyone desiring a copy of this decision of Cocuzza v. Castro may contact me at

Pennsylvania Supreme Court Products Liability Decision of Note

What follows is a Guest Post by the writers of the excellent DRUG AND DEVICE LAW BLOG on the Pennsylvania Supreme Court products liability decision of note handed down earlier this week.  Unfortunately, the Court did not decide the Restatement (Second) vs. (Third) issue:

The Pennsylvania Supreme Court decided a product liability case yesterday: Reott v. Asia Trend, Inc., Nos. 27-30 WAP 2011, slip op. (Pa. Nov. 26, 2012). First of all – no, Reott did not answer, or even mention, the foundational Restatement (Second) vs. Restatement (Third) question, since the case: (1) involved only a manufacturing defect (missing stitching), as to which both restatements agree strict liability should apply, and (2) the element of product defect was not even at issue, since a directed verdict on manufacturing defect had been entered and not appealed. Actually, the point about no mention is not exactly right, since Justice Saylor’s concurring opinion made clear that as to other types of “defects” that question remains open.

The second thing to note about Reott, from our perspective, is that its holdings about plaintiff conduct and causation issues are relevant to prescription medical product cases mostly by analogy because in Hahn v. Richter, 673 A.2d 888 (Pa. 1996), the same court barred strict liability (at least for design and warning – manufacturing defect claims are uncertain) in cases involving such products. But there are occasional manufacturing defect cases involving prescription drugs, and principles of sole causation and superseding cause are also found in negligence, so Reott is worth a look, particularly by Pennsylvania practitioners.

Reott involved that most non-prescription sort of product – a tree stand. If you don’t hunt, then that product name probably doesn’t do much for you either. A tree stand is just what it sounds like, a collapsible platform placed in a tree as a location from which hunters can watch for game (usually, but not always deer). To fit around the tree, a tree stand has a locking strap. The plaintiff, an experienced hunter, had devised his own method to take the slack out of a locking strap so that the tree stand wouldn’t wiggle. In the words of the court:

[W]hile bear hugging the tree, [plaintiff] raised himself on his toes and came down on the platform. According to [plaintiff], this self- taught maneuver, known as “setting the stand,” is used to secure the stand firmly in the tree by taking any slack out of the locking strap. [Plaintiff][ had performed this maneuver, in his estimation, hundreds of times on other stands.

Reott, slip op. at 3-4. Unfortunately, this time the locking strap (with the undisputed manufacturing defect) “broke, and [plaintiff] fell to the ground.” Id. at 4. Even more unfortunately, plaintiff was 25 feet up in the tree when that happened.

With the manufacturing defect not seriously disputed (plaintiff owned a second tree stand of the same make and presumably an expert compared the two and found the missing stitching), the issue at trial was causation. As far as we can tell, the plaintiff’s practice of slamming his weight down on the newly placed stand to force the slack out of the strap was something he devised and was not recommended by the manufacturer or anybody else. How, then, did the plaintiff’s conduct affect causation?

Well, in Pennsylvania strict liability, the mere comparative negligence of the plaintiff isn’t a defense/admissible evidence. However, under a series of lower court decisions, a plaintiff’s “highly reckless” conduct can be the “sole cause” of an accident and is admissible. Thus, under these decisions, a jury gets to hear about a plaintiff’s Darwin Award-worthy conduct. Daddona v. Thind, 891 A.2d 786, 810-11 (Pa. Commw. 2006) (failure to use available safety device, among several other things); Coffey v. Minwax Co., 764 A.2d 616, 621 (Pa. Super. 2000) (use of electricity in presence of inflammable fumes); Frey v. Harley Davidson Motor Co., 734 A.2d 1, 6-8 (Pa. Super. 1999) (driving without lights at night); Madonna v. Harley Davidson, Inc., 708 A.2d 507, 508-09 (Pa. Super. 1998) (driving while intoxicated); Gallagher v. Ing, 532 A.2d 1179, 1182 (Pa. Super. 1987) (same); Foley v. Clark Equipment Co., 523 A.2d 379, 394 (Pa. Super. 1987) (failure to watch where plaintiff was driving); Keirs v. Weber National Stores, Inc., 507 A.2d 406, 409 (Pa. Super. 1986) (not changing out of gasoline-soaked clothing); Gottfried v. American Can Co., 489 A.2d 222, 227 (Pa. Super. 1985) (sticking hand without looking into jagged container); Bascelli v. Randy, Inc., 488 A.2d 1110, 1114 (Pa. Super. 1985) (speeding in excess of 100 m.p.h.); Moyer v. United Dominion Industries, Inc., 473 F.3d 532, 542-45 (3d Cir. 2007) (gross failure to maintain product) (applying Pennsylvania law); Wilson v. Vermont Castings, Inc., 170 F.3d 391, 395-96 (3d Cir. 1999) (failure to read owner’s manual; standing near open flame in loose clothing) (applying Pennsylvania law).

The Supreme Court had never considered whether the “highly reckless” exception to the exclusion of a plaintiff’s contributory fault existed at all, much less how to apply it. In Reott, the majority recognized the exception and held that, like related defenses (assumption of the risk, superseding cause) it was an affirmative defense available to defendants in strict liability actions:

[W]e hold that a defendant in a §402A action must plead and prove, as an affirmative defense, that the plaintiff acted in a highly reckless manner, if such conduct is asserted. . . . [H]ighly reckless conduct is that which occurs when the plaintiff would have been injured despite the curing of any alleged defect, or is so extraordinary and unforeseeable as to constitute a superseding cause. . . . [B]ecause highly reckless conduct, by its very nature, is that which is essentially unforeseeable and outrageous, if it truly exists in a case, it must be the cause of the injuries sustained. . . . [S]hould such an affirmative defense be pursued, the burden of proof is on the defendant to show that the highly reckless conduct was the sole or superseding cause of the injuries sustained.

Reottslip op. 21-22 (various things omitted). The intermediate court had held that, because there was no evidence that the plaintiff’s conduct would have collapsed a non-defective tree stand, the defense should not have gone to the jury. Id. at 7. The Supreme Court, without re-examining the evidence, affirmed after concluding that the Superior Court more or less got the standard correct. Id. at 22.

So what about it?

First, we’re somewhat relieved. This quasi-superseding cause standard is pretty rigorous, but we were not at all sure that the Supreme Court – short of adopting the Third Restatement − would allow in any evidence that could otherwise be characterized as “contributory fault.” Earlier courts, with different justices, probably would not have done so. So, to get the “highly reckless” exception formally recognized by the Supreme Court is something of a defense win (even if the defendant in this particular case lost).

What else?

Defendants need to make sure to plead the exception (it apparently doesn’t fall within Rule 1030(b)), which as the court noted, can be pleaded in the alternative. Slip op. at 20. Importantly, there is no requirement, in establishing the defense, that the plaintiff be aware of any product defect. Id. at 15 (“assumption of the risk involves knowledge of the product’s defect where highly reckless conduct does not”). So the general takeaway is that if the plaintiff’s conduct was stupid enough that it can be presented as a “sole cause,” the jury gets to know about it.

In the case of a defectively manufactured drug or device (arguably subject to the same rules), what kind of plaintiff conduct could qualify? Looking at the cases above, we’d say that patient non-compliance – ignoring doctor’s orders, including those to watch for specific adverse effects – would fit. So would, in the case of an OTC product, ignoring instructions (such as dosing/frequency of use) would also fall within this rubric. Using someone else’s prescription, or using a drug in an illegal fashion (often seen in cases involving painkillers) would also seem to qualify. Physician misuse – ignoring a contraindication – would be in the same ballpark. Finally, there are cases of simple stupidity, standing on a wheelchair, or the weird Hawaii case where the doctor substituted a screw driver for a spinal rod, that (like the 100 m.p.h. plaintiff in Bascelli) that a jury could find sole cause.

Anyway, so while Reott could have been better, is also could have been worse. There is no blanket rule in Pennsylvania strict liability that precludes jury consideration of a plaintiff’s improper conduct. Rather, such conduct is admissible as long as it creates a jury submissible case that the plaintiff caused his/her own injuries.


Posted By Bexis to Drug and Device Law at 11/27/2012 10:05:00 AM

Monday, November 26, 2012

Tort Talk Selected by ABA Law Journal as One of Top 100 Best Law Blogs in the U.S.

I am pleased to announce that the Editors of the ABA Journal announced today that they have selected Tort Talk (  as one of the top 100 best blogs in the nation for a legal audience.

This December 2012 edition of the ABA Journal containing the Blawg 100 List can be read online HERE.

I send out my sincere thanks and great gratitude to all of you who took the time to vote to get Tort Talk onto this list.  I also thank all of you who continue to provide me with tips and cases to help keep Tort Talk worthwhile and current.

Now that the editors have made their picks, the ABA Journal is asking readers to weigh in and vote on their favorites in each of the 6th Annual Blawg 100's 15 categories.  Please consider clicking HERE to register and vote. Voting ends at close of business on Dec. 21, 2012.

Thanks again!  I really appreciate it.

Attention DSL Grads: Consider Joining The Friends of the Dickinson School of Law" Movement

After posting yesterday's write-up on the status of Penn State's change of position from a plan to consolidate all first year students at the State College campus of the Law School to a new plan involving the maintaining of the original Carlisle campus as part of a dual campus Law School, I received a lot of positive feedback from other Dickinson Law Alumni.  All of the feedback was against any movement by Penn State to shift the focus away from the Carlisle campus any more than it already has been.
In addition to positive feedback in favor of maintaining the Carlisle campus of the Dickinson School of Law, I also received an email from Shandra Kisailus a current third-year law student at the Carlisle campus, who advised me that a group has been created by concerned students, alumni and community members called "The Friends of the Dickinson School of Law."
I have agreed to support this group and would encourage other DSL alumni to consider doing the same so that our voices in favor of the original, Carlisle campus of the Dickinson School of Law can be heard loud and clear.  Below is an excerpt of the email, along with a copy of the Position Statement by the group that I received from Ms. Kisailus, who gave me her permission to reprint it.
I am hoping other DSL alumni interested in the preservation of the Carlisle campus of the Dickinson School of Law will also agree to join this group and support its efforts.  Please contact Ms. Kisailus at her contact info below for more information. 
What follows is Ms. Kisailus' email to me and the Position Statement of The Friends of the Dickinson School of Law:  
My name is Shandra Kisailus and I am a third-year law student at the Dickinson School of Law. I attend the Carlisle campus. I am a subscribing member of your Tort Talk blog and enjoy the truly educational posts. However, the reason I am emailing you is related to your post about the attempt by Penn State to consolidate all first-year law students at the State College Campus.
I, along with other concerned students, alumni, and community members, have formed a group aimed at promoting an open dialogue regarding the various proposals presented by Dean McConnaughay. We call the group "Friends of the Dickinson School of Law". Upon receiving details of the first proposal from the dean (to consolidate first-year classes at State College), we gathered our group to discuss the ramifications of the plan on the greater Carlisle community and voiced our disapproval of the plan in a Position Statement, which I have attached for your review. Now that it appears that the first plan will be foregone in favor of a new proposal (two separately accredited law schools under the Penn State Dickinson School of Law name), Friends of Dickinson will continue to meet to actively investigate and discuss this new proposal and to seek to effectively guide the transition process, if necessary.

My purpose in contacting you is to make you aware of the existence of the Friends of Dickinson and ask you to please spread the word of our group in the legal community of Northeast Pennsylvania. As a native of Wilkes-Barre, I took the initiative to send copies of our position statement to various alumni in Luzerne and Lackawanna counties. Anything you can do to let others know of our group would only help us to achieve our goal of promoting the history and future prosperity of the Carlisle campus. Additionally, if you are so moved by your dedication to your alma mater, you can sign our position statement as a supporting signatory. As you have said, Dickinson was the oldest independent law school in Pennsylvania and it would truly be a shame to see its tremendous history lost. Please feel free to contact me for more information about our group, any of the dean's proposals, or to add your name to the signatory list of Friends of Dickinson.


Shandra S. Kisailus

Juris Doctor Candidate 2013
Dickinson School of Law
The Pennsylvania State University
Student Work Editor, The Pennsylvania State University Journal of Law and International Affairs
Vice President, Speaker's Trust Fund
Co-Chair, Mock Trial Committee
p: 717-701-8186 or 570-592-5598

Uncertainty Continues with Products Liability Standard

In a recent decision, Judge Arthur J. Schwab of the Western District of Pennsylvania, ruled in the case of Konold v. Superior International Industries, 2012 WL 5381700 (W.D. Pa. Oct. 31, 2012 Schwab, J.), that the Restatement (Second) should be applied in products liability cases since, despite an opportunity to adopt the Restatement (Third) in the case of Beard v. Johnson & Johnson, the Pennsylvania Supreme Court declined to do so.

In Konold, Judge Schwab noted that here remains a sharp split among the federal courts, and more particularly, the judges that make up the Western District Federal Court of Pennsylvania, on whether the Restatement (Second) of Torts or the Restatement (Third) of Torts applies in strict product liability actions.

Those Western District decisions ruling that the Restatement (Second) should be applied include Schif v. Hurwitz, 2012 WL 1828035 (W.D.Pa. May 18, 2012 Schwab, J.) and Gross v. Stryker Corp., 858 F.Supp.2d. 466, 479–80 (W.D.Pa.2012 Fischer, J.).

The recent Western District federal court decisions that instead state that the Restatement (Third) should be applied included Zollars v. Troy–Built, LLC, 2012 WL 4922689 (W.D.Pa. Oct.16, 2012 Ambrose, J.) and Lynn ex rel Lynn v. Yamaha Golf–Car Co., ––– F .Supp.2d. ––––, 2012 WL 3544774 (W.D.Pa. Aug.16, 2012 Hornak, J.) and Spowal v. ITW Food Equip. Group LLC, 2012 U.S. Dist. LEXIS 47614 (W.D.Pa. Apr. 4, 2012) (Cohill, J.).

As such, there remains a split of authority in the federal courts as to which Restatement of Torts should be utilized in the products liability context. This issue is important given that the Restatement (Second) of Torts calls for more narrow negligence principles to be utilized in this context.

In contrast, the Restatement (Third) decreases the emphasis upon the concepts of “intended use” and “intended user” along with placing a greater emphasis on the doctrine of “reasonable foreseeability” all of which arguably allows for a wider class of parties to recover against a manufacturer of a defective product under a more lenient test of liability.

The hope remains that this issue will come back before the Pennsylvania Supreme Court soon for a clarifying opinion.  The trouble there is that the Pennsylvania Supreme Court is currently working with only a slate of six Justices given Justice Orie Melvin's suspension from the bench.  If such a case should reach the Court again with a less than full complement of judges, the result could be a 3-3 split which will leave the issue unsettled.

Sunday, November 25, 2012

Uniform Interstate Deposition and Discovery Act

Pennsylvania has adopted the Uniform Interstate Deposition and Discovery Act, which act was originally drafted by the National Conference of Commissioners on uniform state laws.

The point of this legislation is to minimize the process for out-of-state counsel who want to conduct discovery in Pennsylvania.

The new law provides that a litigant from another state would have to submit a subpoena to the Pennsylvania Prothonotary in the jurisdiction in which the subject of the subpoena resides, works, or regular transact business in person. Once the subpoena is served, the subject of the subpoena retains the right to apply to court for Orders to modify or quash the subpoena issued by the out-of-state litigant.

Googling this topic also reveals that the same act is possibly under consideration in New Jersey as well.

Obviously, the adoption of the Uniform Interstate Deposition and Discovery Act in both Pennsylvania and New Jersey would help to streamline and make discovery efforts more efficient and cost-effective on both sides of the Delaware River.

2012 Edition of the Pennsylvania Trial Advocacy Handbook and Supplement Now Available

The 2012 edition of the Pennsylvania Trial Advocacy Handbook, for which I serve as the writer of the Annual Supplement, is now available for purchase.

If you are interested in purchasing a copy of this treatise, please contact the publisher, George T. Bisel Company, Inc., at 1-800-247-3526 or go online at

For full disclosure purposes, I note that I do earn a small royalty based upon book sales.


Penn State Drops Efforts to Move All First Year Dickinson Law Students to State College Campus

I am happy to report that, due to pressure against the move proposed by Penn State to consolidate first-year Dickinson School of Law students at the State College University Park campus, Penn State University now instead plans to pursue the alternative plan of entirely separate accreditations for the two-campus law school.

According to newspaper reports and an email from the dean, the dean of the Law School issued a statement stating that "The Dickinson School of Law will remain a single academic unit of Penn State, but each of our campuses will develop and implement separate identities, separate admissions policies, and separate educational programs, similar to Rutgers Law-Newark and Rutgers Law-Camden, or Arkansas Law-Fayetteville and Arkansas Law-Little Rock."

According to other information disclosed by the dean, the transition would take place over the next several years, while approval from the American Bar Association of the separate accreditations is secured. Students would begin to receive separate degrees from either Penn State Dickinson in Carlisle or Penn State Dickinson in University Park after 2015.

While I normally try to keep my own opinions out of Tort Talk I am compelled to note that I am glad to see that the consolidation plans did not go through if only for the thought that it may keep the Dickinson School of Law in Carlisle alive. I am proud to have graduated from what was the oldest independent law school in the nation before it became affiliated with Penn State. There is a lot of history with the Dickinson School of Law and that should be honored, preserved, and kept alive.

Tuesday, November 20, 2012


Taking a moment to say thanks for reading Tort Talk and for supporting the blog with your contributions and tips on important cases and trends in Pennsylvania Civil Litigation Law.  I appreciate and am grateful for your readership and friendship.

I hope you and your family have a HAPPY THANKSGIVING HOLIDAY.



Vanderhoff v. Harleysville To Be Revisited by Pennsylvania Supreme Court

Tort Talkers may recall my previous reportings on the case of Vanderoff v. Harleysville Insurance Company where the central issue was what constituted “actual prejudice” in the context of the prejudice to an uninsured motorist carrier resulting from a Claimant’s late reporting of a phantom vehicle having been involved in the subject accident.

In 2010, the Pennsylvania Supreme Court previously addressed this issue and found that a carrier could not deny uninsured motorist benefits unless it established prejudice from an insurer’s failure to report a “phantom vehicle.” See Vanderoff v. Harleysville Ins. Co., 997 A.2d 328 (Pa. 2010). The case was remanded back to the trial court for further proceedings consistent with that decision.

In Vanderoff, the subject accident was allegedly reported to law enforcement officials within thirty(30) days of the accident as required by the policy language. However, the insurance company itself allegedly did not receive notice of the accident until about eight (8) months after the accident.

In its previous ruling, the Pennsylvania Supreme Court found that, since the accident was reported to law enforcement officials within thirty (30) day requirement, the case will be remanded back to the trial court to determine whether or not the insurance company could establish prejudice from its later receipt of notice.

On remand, the Luzerne County Court of Common Pleas ruled, after hearing on the matter, that the delay in notifying the carrier, in and of itself, did not amount to prejudice sufficient to support the carrier’s denial of coverage. As such, the trial court judge held on remand that the Plaintiff’s UM claim was not barred by the untimely notice. Vanderoff v. Harleysville Ins. Co., 5611 of 2003 (Luz. Co. 2010, Wetzel, J.).

Thereafter, the case went back up the appellate ladder to the Pennsylvania Superior Court which reversed the trial court’s decision in this regard and found that the insurance company was indeed prejudice by the insured’s failure to timely notify the carrier that a phantom vehicle had been involved in the accident before filing the claim for uninsured motorist benefits.

I have now been advised that this issue is again proceeding back up to the Pennsylvania Supreme Court. In an Order dated November 14, 2012, Pennsylvania Supreme Court granted the Petition for Allowance for Appeal and defined the issues in that Order as involving the following:

(1) What constitutes “actual prejudice” to relieve and insurance company of its obligation to pay insurance benefits to an insured?

(2) Should “actual prejudice” involve proof by an insurance carrier that it suffered a real material impairment of its ability to investigation and defend an uninsured claim?

(3) What constitutes a reasonable basis for a trial court finding that prejudice exists in a late report of a phantom vehicle?

A copy of the Supreme Court’s Order may be viewed HERE.

I send thanks for the Plaintiff’s attorney in this matter, Brian Corcoran, Esquire of Kingston, Pennsylvania for bringing this development to my attention.

Monday, November 19, 2012

Pennsylvania Superior Court Limits Scope of Discovery on Defendant Doctor's Prior Surgeries

In its recent decision in the case of Buckman v. Verazin, 2012 Pa. Super 216 (Pa. Super Oct. 5, 2012 Stevens, P.J., Bender, J. and Gantman, J.) (Opinion by Bender, J.), the Pennsylvania Superior Court reversed a discovery order issued by the trial court in a medical malpractice case pertaining to the production of prior records regarding similar surgeries performed by a defendant surgeon.

This medical malpractice action against the medical providers arose after treatment in the form of a surgery identified as a sigmoid colectomy and colostomy. During the deposition of the surgeon, the surgeon described tailoring the surgery to the Plaintiff’s particular physique.

After that deposition, the Plaintiffs served additional written discovery upon the Defendant’s requesting additional information and any and all medical records pertaining to prior similar surgery performed by the same surgeon in the five (5) years before the Plaintiff’s surgery. The Defendants objected to this written discovery request. The Plaintiffs responded with a Motion to Compel and this issue worked its way up to the Superior Court.

The Plaintiffs argued that the five (5) prior years of surgical records were necessary to determine the surgeon’s experience with the specific procedure at issue as well as his technique in performing the surgery given the Plaintiff’s allegations that the surgeon’s technique was negligent. The Plaintiffs also argued that all of the surgeon’s surgical records from the very date of the Plaintiff’s surgery should be discoverable to establish a time line of events for the surgeon for that particular day.

The defense countered that the requested information was highly embarrassing, privileged, protected from discovery by federal and state law, the records were not probative of any negligence theory asserted against the surgeon, and the records did not support the Plaintiff’s efforts to impeach the surgeon. Other Defendants raised the issue of physician/patient privilege and violations of the other patients' rights to privacy.

The Superior Court initially noted that the Order involving discovery was not a final Order and was, therefore, not appealable. However, the Superior Court deemed the Order to be appealable in this scenario as a collateral Order under Pa. R.A.P. 313(b).

After reviewing the pertinent law on the issues presented, the Pennsylvania Superior Court ultimately ruled that the request for information related to third party who had not given their consent was an improper request for confidential information that was not relevant to the instant negligence claims.

The court also found that actions taken by the surgeon when operating on other patients was not probative of what his actions were when caring for the Plaintiff in this matter.

The Court also noted that, to the extent the Plaintiffs were seeking the other operative reports in order to impeach the Defendant surgeon, the Court noted that impeachment could be accomplished by other, less intrusive means such as through the testimony of another doctor or by way of questions asked to the physician himself about his prior cases.

The Court in this matter additionally found that the Plaintiff collateral evidentiary interest was outweighed by the need for confidentiality of the records of third parties who had not given their consent and who had a right to privacy with respect to their medical records.

Accordingly, the Pennsylvania Superior Court reversed the trial court’s granting of the Plaintiff’s Motion to Compel.

Anyone desiring a copy of this decision may contact me at

I send thanks to William Acquilino, Esq. of the Perry Law Firm in Scranton, Pennsylvania for advising me of this decision.

YEAR -END ARTICLE: A Look at 2012's Trends in Auto Law

A Look at 2012's Trends in Auto Law


Pennsylvania Law Weekly
November 13, 2012

In this first of a two-part column, I delve into the top civil litigation decisions and trends of 2012. This first column will review the developments in the auto law arena and will be followed by a second column analyzing the important cases and trends in general civil litigation matters.

A look back over the past year reveals many significant changes in the law along with further anticipated developments to come in the near future. But, first, a review of the past year's notable changes in the auto law context.

Pusl Overturned

Without a doubt, the most talked-about auto law opinion to come down over the past year was the Pennsylvania Superior Court's September 28 decision in the case of Smith v. Rohrbaugh, No. 91 MDA 2010, 2012 Pa. Super. 208 (Pa.Super. Sept. 28, 2012 Stevens, P.J., Bender, J., Panella, J., Donohue, J., Allen, J., Mundy, J., Olsen, J., Ott, J., and Wecht, J.) (Opinion by Ott, J.), in which that court took the rare step of reversing one of its notable earlier holdings.

In Smith v. Rohrbaugh, the Superior Court held that its previous decision in the case of Pusl v. Means, 982 A.2d 550 (Pa.Super. 2009), was wrongly decided and therefore overruled.

In Pusl, the Superior Court held that, where a plaintiff first obtained an underinsured (UIM) benefits recovery in a motor vehicle accident case from his or her own automobile insurance company, the defendant tortfeasor in the third-party liability lawsuit was entitled to a credit against the verdict up to the UIM amounts already received by the plaintiff.

The rationale behind this ruling was to prevent a double recovery by the plaintiff in violation of Pennsylvania's Motor Vehicle Financial Responsibility Law.

When the prior Pusl decision came down in 2009, it caused quite a stir and many litigators on both sides of the bar questioned the validity of the decision. As the auto litigation bar was anxiously awaiting a review of the Pusl case by the Pennsylvania Supreme Court, that court surprised many by denying allocatur, thereby leaving the Superior Court's decision as the rule of the land.

In the recent Smith v. Rohrbaugh case, the trial court applied a Pusl UIM credit against a jury's verdict entered against the tortfeasor defendant driver.

The plaintiff objected to this credit and appealed.

On appeal, the Superior Court in Smith noted that Pusl had been based, in part, upon the Superior Court's prior decision in the case of Tannenbaum v. Nationwide Ins., 919 A.2d 267 (Pa.Super. 2007), which pertained to the recovery of first-party benefits. However, the Superior Court decision in Tannenbaum had since been overruled by the Pennsylvania Supreme Court. Thus, a rationale underpinning the Superior Court's separate ruling in Pusl was eradicated.

In Smith, the Superior Court stated that the court in Pusl had correctly decided that a section of the Motor Vehicle Financial Responsibility Law, i.e., 75 Pa.C.S.A. Section 1722, prevented a double recovery of first-party benefits in motor vehicle accident matters. The court noted that UIM benefits are generally and colloquially considered to be first-party benefits because they come from the first-party carrier.

However, the Smith court found that the Pusl decision incorrectly equated UIM benefits with the type of first-party benefits that are specifically defined in the MVFRL by the legislature. Based upon a finding that the reasoning in Pusl was incorrect, it was held in Smith that the Pusl court had also incorrectly concluded that the Section 1722 prohibition against a double recovery of first-party benefits applied to UIM payments. The court found that to rule otherwise would represent an impermissible rewriting of the MVFRL.

As such, the Pusl credit no longer exists and it appears that a plaintiff may now, if desired, secure UIM benefits prior to proceeding on a claim against the third-party tortfeasor on the liability side.

It remains to be seen whether this case will be appealed up to the Pennsylvania Supreme Court and, if so, whether that court will grant allocatur to hear the appeal this time.

On the Praecipe of Guidance

As analyzed in my recent article, "Hurricane Koken Turns To Sea," (Pennsylvania Law Weekly, September 18), Pennsylvania auto law jurisprudence also currently appears poised to provide much-needed appellate guidance in another area. It is anticipated that the appellate courts will soon have a chance to weigh in on a variety of novel post-Koken issues that litigators and judges have struggled with over the past few years.

It has now been nearly seven years since the automobile accident litigation landscape was forever changed by the monumental Pennsylvania Supreme Court decision in the case of Insurance Federation of Pennsylvania v. Commonwealth, Department of Insurance (Koken), 889 A.2d 550 (Pa. 2005).

In that decision, the state Supreme Court held that automobile insurance carriers were not required to include arbitration clauses in their policies for the resolution of underinsured and uninsured motorist claims. Most carriers rid their policies of arbitration clauses, thereby requiring UIM claims, for the first time, to proceed through the court system like any other matter. This gave rise to a wide variety of difficult, novel post-Koken issues at the pleadings, discovery and trial stages.

To date, other than the issue of proper venue, the appellate courts have not had an opportunity to squarely address any novel post-Koken issue of note. Among the most troubling of those issues are the questions of consolidation versus severance of UIM and third-party claims under a single caption, the order of allowable discovery when bad-faith allegations are asserted, requests for the bifurcation of the trial of third-party and UIM claims, and the permissibility of references to "insurance" at trial.

A number of these novel post-Koken cases are now getting through to jury verdicts and are beginning to climb the appellate ladder, where a poised Superior Court awaits a chance to tackle this fast-approaching onslaught of issues.

As noted, one of the main post-Koken issues the trial courts across the state have struggled to address involves the proper handling of the mentioning of "insurance," or the identification of the insurance carrier defendant at trial.

A recent post-Koken trial order in this regard was issued by Luzerne County Court of Common Pleas Judge Michael T. Vough in the case of Borthwick v. Webb, No. 2735-Civil-2010 (C.P. Luz. Co. Sept. 7, 2012 Vough, J.). In that post-Koken matter, the case was set to proceed to trial against both the tortfeasor defendant driver and the UIM carrier.

The UIM carrier filed a motion with the court requesting that the case proceed with the trial as a tort action and allowing GEICO to be a silent defendant and precluding all evidence of insurance during the course of the trial.

In response, Vough took a middle position and ruled that the "plaintiff is limited to informing the jury that he had an underinsured policy with defendant GEICO Insurance Co. There shall be no other evidence presented to the jury regarding insurance." Vough otherwise ordered that GEICO was to appear in the case as a named defendant and an active participant.

This very issue is coming before the Pennsylvania Superior Court in the separate Allegheny County case entitled Stepanovich v. McGraw and State Farm Ins., GD 10-16523 (C.P. Allegh. Co. July 31, 2012 O'Reilly, J.).

Judge Timothy P. O'Reilly addressed issues raised in a motion for a new trial following a post-Koken combined trial of the third party and the UIM claims. According to reports on this matter, the insurance company defendant fully participated in the trial, but was not identified to the jury.

O'Reilly's order granted a new trial to the plaintiffs in light of the failure to identify the UIM carrier at the trial. O'Reilly held, in part, that it was a denial of due process not to identify the insurance company at a post-Koken trial.

The Stepanovich case is now pending before the Pennsylvania Superior Court and is one to watch. This case represents one of the first opportunities that a Pennsylvania appellate court will have to squarely address this important, recurring issue from post-Koken cases. Auto law litigators hope that many other cases will also follow up the appellate ladder in the near future to clarify and streamline the many novel issues of contention.

Dot Your I's and Cross Your T's

The appellate courts of Pennsylvania did provide guidance on a number of recurring coverage issues over the past year.

In its recent decision in the case of Jones v. Unitrin Auto and Home Insurance, No. 397 W.D.A. 2011 (Pa. Super. Feb. 6, 2012 Musmanno, Alan and Mundy J.J.), (Opinion by Mundy, J.) (Alan J. dissenting), the Superior Court held that insurance carriers must strictly comply with the mandates for the form utilized for an insured's rejection of UIM benefits during an application for automobile insurance.

The question presented in this case involved whether inclusion of additional language by the UIM carrier on its UIM rejection form contained in the insured's application, over and above the mandated language, failed to specifically comply with the statutory requirements and therefore rendered the rejection void. Specific requirements for the language of a rejection of underinsured motorist benefits form are set forth under 75 Pa. C.S. §1731.

According to the court in Jones, the carrier's UIM rejection form included all of the language mandated by §1731(c), (c.1).

However, the form also included an additional sentence that was not in the statutory form.

With no case law on point, the Jones court analyzed other decisions surrounding this issue, such as decisions addressing a carrier's omission of certain words from the required form, American Intern. Ins. v. Vaxmonsky, 916 A.2d 1106 (Pa. Super. 2006), and the Pennsylvania Supreme Court decision regarding whether the mandated form had to appear alone on a single page (it does not), Winslow-Quattlebaum v. Maryland Ins. Group, 752 A.2d 878 (Pa. Super. 2000).

Noting that the other prior analogous decisions have required that the subject form "specifically comply" with the requirements of §1731(c), the Superior Court in this Jones case found that by adding a sentence to the form between the required language and the signature line, the Unitrin UIM rejection form did not "specifically comply" with §1731(c) as required by §1731 (c.1) and was, therefore, void.

It is noted that U.S. District Senior Judge Edmund V. Ludwig of the Eastern District of Pennsylvania relied upon Jones in ruling in Robinson v. Travelers Indemnity Co. of America, 2012 WL 677007 (E.D. Pa. Feb. 29, 2012), that the addition of even a single word to the mandated language rendered the rejection form void. In Robinson, the carrier had changed the waiver by simply adding the word "motorists" into the phrase "underinsured coverage" in the mandated language.

Thus, there can be no question that strict compliance with the statutory mandates for UM/UIM rejection forms is required.

Credit to UIM Carrier Upheld (Again)

According to another appellate decision handed down in 2012, there is also no question that UIM carriers remain entitled to a credit in the amount of the tortfeasor's liability limits.

The case of Irving v. Progressive Specialty Ins., No. 11-7594, 2012 WL 2912309 (E.D.Pa. July 17, 2012 McLaughlin), represents the latest in the long line of Pennsylvania court decisions upholding exhaustion clauses in the UIM portion of insurance policies as entitling the UIM carrier to a credit for the liability limits of the tortfeasor(s) in motor vehicle accident matters.

Ever since at least the 1995 case of Boyle v. Erie Ins., 656 A.2d 941 (Pa.Super. 1995), the rule in Pennsylvania has been that, in order to pursue a UIM claim, the plaintiff need not fully exhaust the tortfeasor's liability limits but must instead give the UIM carrier a credit for the full amount of the available liability limits.

In Irving, the plaintiff sued the driver of the vehicle that struck his vehicle and also sued another driver who had allegedly "waved" the first defendant to proceed. The plaintiff settled his claim with the first defendant who struck his vehicle. That settlement was for $15,000.

The plaintiff put Progressive Insurance on notice of a UIM claim. At that time, the remaining third-party litigation was still pending against the defendant who had allegedly waved the first defendant to proceed. Progressive asserted that it was entitled to a credit in the amount of the $15,000 limits of the first tortfeasor as well as the $300,000 in liability limits covering the waving defendant. The plaintiff disagreed and filed this declaratory judgment action.

The Irving court provided a nice summary of the line of Pennsylvania state and federal decisions upholding exhaustion clauses. After reviewing the language of the exhaustion clause at issue in this matter, the court ruled that Progressive was indeed entitled to a credit in the amount of both defendants' liability limits, i.e., $315,000 as opposed to only $15,000.

Regular use exclusion upheld (Again and again and again)

Over the past year, the Superior Court rebuffed several attempts by the plaintiffs bar to overturn the regular use exclusion, which upholds the all-American principle that "you can't get something for nothing." The regular use exclusion typically comes into play where an injured party is injured in an accident while operating a vehicle that was not covered under the insurance policy that the injured party has made a claim against. The exclusion basically works to prevent an insurance company from being subjected to an additional risk of coverage for a vehicle for which the insurance company did not receive a premium or intend to insure.

Earlier this year, the Superior Court also upheld a non-owned, regularly used vehicles exclusion in its nonprecedential decision in the case of Erie Insurance v. Soroka, No. 1086 M.D.A. 2011 (Pa. Super. March 8, 2012 Gantman, Allen, and Mundy, J.J.) (Memorandum by Mundy, J.).

In its September 25 decision in the case of Adamitis v. Erie Insurance Exchange, No. 893 EDA 2010 (Pa. Super. Sept. 25, 2012 Stevens, P.J., Lazarus, J. and Colville, J.) (Opinion by Stevens, P.J.), the Superior Court revisited the regular use exclusion issue and again affirmed the validity and enforceability of that exclusion in an underinsured motorist coverage benefits case involving alleged injuries sustained by the claimant while driving at work.

By way of background, this matter arises out of a motor vehicle accident that occurred when the injured party was working as a bus driver. While working in the course and scope of his employment, the plaintiff was involved in a motor vehicle accident with an allegedly underinsured motorist.

After resolving his third-party liability claims against the tortfeasor defendant, the injured party sought UIM coverage under his own personal automobile policy with Erie Insurance.

Under the regular use exclusion clause, it was provided that Erie need not provide UM/UIM coverage "for bodily injury to you or a resident arising from the use of a 'non-owned motor vehicle or a non-owned miscellaneous vehicle which is regularly used by you or a resident, but not insured for uninsured or underinsured motorists coverage under the policy.'"

Based upon the evidence presented, the trial court found that the claimant did indeed receive the notice of the addition of the regular use exclusion to the Erie policy. This finding was affirmed on appeal and, after applying the language of the regular use exclusion to the facts of the case, the Superior Court also upheld the trial court's decision in favor of Erie Insurance. In so ruling, the appellate court additionally rejected public policy arguments offered up against the validity of the exclusion.

In its more recent October 18 decision in the case of Rother v. Erie Insurance Exchange, No. 1770 MDA 2011, 2012 Pa. Super. 228 (Pa. Super. Oct. 18, 2012 Bowes, Ott, and Straussburger, JJ.) (Opinion by Bowes, J.), the Superior Court again upheld the validity of the regularly used, non-owned vehicle exclusion. The more central question in the Rother case was the parameters of the test to determine if the use of a vehicle was "regular."

In Rother, the claimant was injured in a motor vehicle accident at which time the plaintiff resided with his mother. The vehicle in which the claimant was located at the time of the accident was separately owned by his father, who resided elsewhere. The father restricted the claimant's use of this vehicle only for work or emergency purposes. The claimant had only begun to drive the vehicle to and from work a short period of time before the subject accident occurred.

The injured party secured a recovery from the tortfeasor and then sought UIM coverage under his mother's automobile insurance policy with Erie Insurance as a resident relative insured under that policy. Erie denied coverage pursuant to the regular use exclusion in the policy.

The essential question in this case was whether the plaintiff was "regularly" using the subject vehicle in a way contemplated by the exclusion. The Pennsylvania Superior Court thoroughly reviewed the law pertaining to the test for regular use, i.e., "whether the use is regular or habitual," and found that the use of the vehicle was indeed regular under the facts of this case.

The Superior Court noted that the claimant did routinely and habitually use the vehicle within the scope of his father's permission to go to and from work four days per week. Despite the use being restricted, the court still found this type of use to be regular within the meaning of the exclusion.

The court in Rother further stated that the application of the regular use exclusion to these facts did not violate any public policy grounds. To the contrary, the court found that the regular use exclusion has been repeatedly upheld on policy grounds, as that exclusion generally promotes the cost-containment policy under the MVFRL.

Looking Down the Road

In the coming year, trends to watch for in the auto law context include the continuing development of the post-Koken common law at the appellate level. Also anticipated in the year ahead is Pennsylvania Supreme Court guidance on the discoverability of communications between counsel and expert witnesses. More on that to come in the second part of this column. •

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

Thursday, November 15, 2012

Argument Held On Ciavarella Appeal

According to local news reports, former Luzerne County Judge Ciavarella's appeal came before the Third Circuit Court of Appeals recently in oral argument.  Here is link to a November 15, 2012 newspaper report out of the Scranton Times-Tribune:

Wednesday, November 14, 2012

Post-Koken Scorecard Updated

I have updated the POST-KOKEN SCORECARD to include the number of new decisions uncovered since July, 2012. 

The updated Post-Koken Scorecard can be viewed HERE.

You can also always access the Tort Talk Post-Koken Scorecard (as well as the Tort Talk Facebook Discovery Scorecard) by going to the Tort Talk site at and scrolling down the right hand side of the blog and then clicking on the dates noted under the Scorecard titles.

Hoping you can please continue to provide me with tips and cases regarding new Post-Koken decisions and Facebook decisions so we can all try to stay on top of these developing areas of civil litigation law.

Tuesday, November 13, 2012

Judge Amesbury of Luzerne County Addresses Post-Koken Bad Faith Discovery

In a November 6, 2012 detailed Order, Judge William H. Amesbury addressed an insurance carrier's motion to sever and stay bad faith discovery in the Post-Koken UM/Bad Faith combined claim of Schuckers v. Penn National, No. 9080 - CV - 2011 (C.P. Luz. Co. Nov. 6, 2012 Amesbury, J.)

Judge William H. Amesbury
Luzerne County
In so ruling, Judge Amesbury cited Gunn v. Automobile Ins. Cos. of Hartford, 971 A.2d 505 (Pa.Super. 2009) for the proposition that, since the trial of the UM claim would be by jury and the trial of the bad faith claim would be by a bench trial (under state law), there is a severance of the claims for trial purposes by operation of law.

In terms of discovery on the UM and Bad Faith claims, Judge Amesbury took a page out of the playbook recommended by Judge Wettick in the trial decision in Gunn, supra., and held that, since there was a bad faith claim presented, the carrier's values and its opinions and conclusions on the strengths and weaknesses of the uninsured motorist claim would not be disclosed in an unredacted form until after jury deliberations begin on that initial claim. Judge Amesbury also noted that, at that point, the Plaintiff could request a stay of the trial of bad faith claim if time was needed to review the carrier's file and develop the case further.

I send thanks to Attorney Stephen Fendler of the Kingston, PA office of Fendler & Associates, P.C. for advising me of this decision.

Anyone desiring a copy of this Order in Schuckers v. Penn National may contact me at

Judge Nealon Addresses Discoverability of Plaintiff's Prior Alcohol Abuse and Mental Health Records

In his recent November 1, 2012 Opinion in the case of Ferguson v. Ghigiarelli, No. 2011-CV-6033 (C.P. Lacka. Co. Nov. 1, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the discoverability of a Plaintiff’s records related to his alcohol abuse and mental health treatment in a medical malpractice matter.

The Plaintiff contended that his alcohol abuse treatment records were protected from discovery by §108 of the Drug and Alcohol Abuse Control Act, 71 P.S. §1690.108. The Plaintiff also asserted that his mental health records were not discoverable due to the psychiatrist-patient privilege set forth in 42 Pa. C.S. §5944.

Judge Terrence R. Nealon
Lackawanna County
Relying, in part, upon the case of Kraus v. Taylor, 710 A.2d 1142 (Pa. Super. 1998), appeal dismissed, 743 A.2d 451 (Pa. 2000), Judge Nealon held that a Plaintiff impliedly waives the statutory protection afforded to drug and alcohol treatment records by filing a personal injury lawsuit claiming a permanent injury and thereby placing the Plaintiff’s life expectancy at issue.

With respect to the separate mental health records, the Court in Ferguson concluded that the Plaintiff did not similarly waive the psychiatrist-patient privilege by generally alleging “mental and emotional anguish” as elements of the pain and suffering claim. The Court noted that the Plaintiff did not specifically make any claim for damages in this matter for anxiety, severe emotional trauma requiring treatment, or some other specifically recognized mental disorder.

Accordingly, Judge Nealon held that the alcohol abuse treatment records were discoverable but that the mental health treatment records were not under the facts of this case.

Anyone desiring a copy of this Opinion may contact me at

Optional E-Filing Now Allowed in Pennsylvania Supreme Court

According to a November 13, 2012 article entitled "Pennsylvania Supreme Court Starts Optional E-Filing" by Amaris Elliott-Engel of The Legal Intelligencer, the Pennsylvania Supreme Court started to allow optional e-filings last week.  The article also notes that e-filing may also start in the Pennsylvania Superior Court and Commonwealth Court at some point in 2013.

Here is a link to the Pennsylvania Supreme Court Order issued back on October 24, 2012 allowing for the electronic filing of appellate documents as of November 1, 2012:

Source of image:

Monday, November 12, 2012


Northeast Pennsylvania Trial Lawyers Association


The Pennsylvania Defense Institute

are hosting a

Holiday Happy Hour

Wednesday November 14, 2012

5:00pm to 7:00pm



Mohegan Sun Casino at Pocono Downs

Wilkes-Barre, PA

Please RSVP to David Cole


Members of NEPATLA or PDI: FREE

Non-Members/Guests: $25


Contact Dave Cole above for details and to register

Thursday, November 8, 2012

Subpoenas To IME Vendor Companies Upheld in Luzerne County

Luzerne County Courthouse
Two recent discovery orders out of the Luzerne County Court of Common Pleas upheld a Plaintiff’s Motion for Enforcement of a Subpoena sent by the Plaintiff to an IME vendor company for a copy of their file pertinent to the cases presented.

In each of the Orders, the Court ordered the IME vendor company to comply with the Plaintiff’s subpoena to produce the information requested.

However, the Orders did provide that correspondence and content referencing communications by and between defense counsel and the IME vendor was excluded from the Order of production (presumably in deference to the current status of the law under Barrick v. Holy Spirit Hospital, which is currently pending before the Pennsylvania Supreme Court).

Those cases involving these Orders, without any opinion, were issued in the following cases:

Dunsmuir v. Tredennick and State Farm, No. 12077-Civil-2010 (C.P. Luz. Co. Nov. 22, 2012 Hughes, J.)

Polacheck v. Mullay, No. 12657-Civil-2009 (C.P. Luz. Co. Aug. 17, 2012 Gelb, J.)

I send thanks for the prevailing attorney, Ann O. Farias of the Kingston, Pennsylvania O’Donnell Law Offices for forwarding these Orders to my attention.

Anyone desiring a copy of these Orders (no Opinion) may contact me at

Summary Judgment for Defendant Denied in Store Slip and Fall Case

In the case of Siffel v. Best Buy, No. 11-3713 (E.D. Pa. Oct. 3, 2012), the court denied a Defendant’s Motion for Summary Judgment in a department store slip and fall case.

In this matter, the Plaintiff allegedly slipped on an advertising circular which was allegedly located on the floor of the store.

The court denied the Motion for Summary Judgment based upon issues of fact after the Plaintiff produced evidence to create a factual question as to whether the condition of advertising circulars on the floor was “pervasive and obnoxious.”  The record before the court established that three employees saw the brochures on the floor near where the Plaintiff fell. Evidence was also produced that another employee explained that the brochures would typically fall onto the floor. Yet another employee recalled prior customer complaints of debris littering the store floor.

Based upon the record before the court, summary judgment in favor of the defendant store was denied.

I do not have a copy of this case.

Source: “Court Summaries” by Timothy L. Clawges in the November 5, 2012 Pennsylvania Bar News.

Source of image(unrelated to this matter):

Wednesday, November 7, 2012


Northeast Pennsylvania Trial Lawyers Association


The Pennsylvania Defense Institute

are hosting a

Holiday Happy Hour

Wednesday November 14, 2012

5:00pm to 7:00pm



Mohegan Sun Casino at Pocono Downs

Wilkes-Barre, PA

Please RSVP
to David Cole


Members of NEPATLA or PDI: FREE

Non-Members/Guests: $25

Contact Dave Cole above for details and to register