Tuesday, April 30, 2013

Intoxication Evidence Precluded Where Evidence Lacking

In the Lycoming County Court of Common Pleas case of Jacobs v. Bilbay, No. 11-00, 118 (C.P. Lycoming Jan. 25, 2013 Gray, J.), Judge Richard A. Gray addressed a Defendant's motion in limine in an auto accident case involving punitive damages claims based upon alleged intoxication of the Defendant and the Defendant's fleeing of the scene of the accident. 

The Defendant filed a motion in limine to preclude the Plaintiff from presenting evidence of alcohol because liability was admitted and there was no evidence of intoxication.

The trial court granted the motion in limine and precluded the Plaintiff from presenting evidence of Defendant's alleged intoxication and fleeing the scene of the collision .  The court reasoned that the mere pleading of intoxication and careless and/or reckless conduct does not mean that the Plaintiff can automatically introduce such evidence at trial. 

According to the Opinion, the only evidence in the record of possible intoxication was that:  (1) the defendant allegedly drank two beers before the collision,  (2) the accident occurred at 2 a.m., and (3) the plaintiff was scared. 

The court found that this evidence was insufficient proof of intoxication since there was no sufficient corroborating evidence to establish the requisite degree of intoxication.  For example, the plaintiff failed to offer blood alcohol evidence, witness testimony as to alcohol on breath, slurred speech, or stumbling, etc., with respect to the defendant.  

Judge Gray also ruled that mere evidence of the Defendant's fleeing of the scene of the accident did not create a jury issue on the punitive damages claim, in and of itself, as the Defendant allegedly did not realize that she had struck plaintiff. 

The court also noted that evidence of a Defendant's not stopping for an accident was not admissible for alleged impeachment purposes in this case since such evidence had little or no probative value and was extremely prejudicial where the Defendant admitted liability.

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

I send thanks to Attorney Scott Cooper of the Harrisburg law office of Schmidt Kramer for bringing this case to my attention.

Tuesday, April 23, 2013

Judge Nealon of Lackawanna County Addresses Facebook Discovery Issue

Judge Terrence R. Nealon of the Lackwanna County Court of Common Pleas has weighed in on the Facebook Discovery question as a case of first impression in the matter of Brogan v. Rosenn, Jenkins & Greenwald, No. 08 - CV - 6048 (C.P. Lackawanna County 2013 Nealon, J.).

In this matter, the Plaintiff was seeking the Facebook login name, user name, and password of a deponent witness who happened to be a paralegal in a defendant insurance company's claims department.  According to the opinion another insurance company witness testified that he had communicated via Facebook with that paralegal regarding depositions in the matter.  The carrier refused to release the paralegal's login info, user name, or password.  The Plaintiff filed a discovery motion to compel that information.

Judge Terrence R. Nealon
Lackawanna County
In a thorough and detailed Opinion outlining the current status of the law on Facebook Discovery (and in which the court cited to Tort Talk in footnote three!), Judge Nealon denied the Motion.

Judge Nealon ruled that, in order to obtain discovery of private information on social media sites the seeker of the information must, at the very least, show that the information sought is relevant to the case at hand.  One way to do that is to show that the publicly available information on the site at issue reveals information pertinent to the matter and arguably calls the claims or defenses at issue in the suit into question.

Judge Nealon also held that social media discovery requests must be properly framed so that only relevant and non-privileged information is sought and produced.

In this matter, the Court found that the plaintiffs had not established the relevance of the information on the paralegal's private Facebook pages such that the demand for the paralegal's disclosure of the user name and password was overly intrusive and would cause unreasonable embarrassment and burden to the paralegal in violation of the Pennsylvania Rules of Civil Procedure pertaining to discovery.  As such, the motion to compel was denied.


Judge Nealon's Opinion is another example of the courts applying the same ol' rules of discovery to a new set of circumstances.

The court in Brogan basically concluded that all of these new forms of digital technology (i.e., computer generated animations as demonstrative evidence, text messages, Facebook discovery, Twitter etc.) should be evaluated under the same, long-standing rules applicable to more conventional forms of paper discovery and evidence.  As Judge Nealon noted on p. 15 of his Opinion, "To that extent, the resolution of social media discovery disputes pursuant to existing Rules of Procedure is simply new wine in an old bottle."

It is noted that Judge Nealon's ruling differs from other Pennsylvania decisions in that he held that a discovery request for production of the account holder's username and password for unfettered access to the user's private information, as opposed to the actual production of photos, etc. posted on a social networking site, is too broad, overly intrusive and not stated with the "reasonable particularity" required by the Pennsylvania discovery rules.  In this regard, Judge Nealon utilized an analogy of  a party having a right to demand production of a relevant photo, but not being entitled to inspect every photo album that someone may possess in the hopes of uncovering a relevant photo.

By requiring the social media discovery request to be submitted with reasonable particularity, the court was seeking to prevent "fishing expeditions" that are frowned upon by the Rules and decisions.

Anyone wishing to review Judge Nealon's Opinion in Brogan may click HERE.

Check out the updated Facebook Discovery Scorecard HERE.  Note that you can see the various Facebook Discovery decisions from around the Commonwealth of Pennsylvania by clicking on the case names on the Tort TalkFacebook Discovery Scorecard.  That Scorecard, along with the Post-Koken Scorecard is always freely accessible by going to the Tort Talk blog at www.TortTalk.com and scrolling down the right hand column.

Monday, April 22, 2013

Pennsylvania Superior Court Addresses Statute of Limitations for UIM Claim

Tort Talkers may recall that I previously reported on the Montgomery County Court of Common Pleas decision in Hopkins v. Erie Insurance Company regarding the analysis of a statute of limitations argument in a UIM case.  See THIS POST for more background on the case and issue presented.

Pennsylvania Superior Court affirmed the lower court decision last Friday, April 19, 2013 in Hopkins v. Erie Insurance Company, 2013 Pa.Super. 90, 35 EDA 2012 (Pa.Super. 2013 Gantman, Allen, and Ott, JJ.)(Opinion by Allen, J.)(Concurrence by Gantman, J.).

The Superior Court held that a UIM cause of action accrues when the third party case settled and not when the contract was allegedly breached when Erie denied the claim. In so ruling ,the Superior Court followed the reasoning of the united States Court of Appeals of the Third Circuit in State Farm v. Rosenthal, 484 F.3d 251 (3d Cir. 2007).

Ultimately, the Superior Court held that "the four-year statute of limitations on underinsured motorist claims begins to run when the insured settles with, or secures a judgment against, the underinsured owner or operator."

The court also found that there was no error in the trial court declining to equitably toll the statute of limitations.

Anyone wishing to view the Opinion may click this link:


I send thanks to Attorney Joe Walsh of Walsh Pancio in Lansdale, PA, Attorney Scott Cooper of Schmidt Kramer in Harrisburg, PA, and Attorney Paul Oven of the Moosic law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Sunday, April 21, 2013

Judge Nealon Addresses Applicable Statute of Limitations in Defamation/Tortious Interference Claim Based Upon Same Statements

In his recent decision in the case of Pittsman v. Dr. David Perrone, No. 11-CV-1235 (C.P. Lacka. Co. April 11, 2013 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a defendant's motion for summary judgment based upon the expiration of the applicable statute of limitations in a combined defamation and tortious interference with business relations lawsuit.

The defense argued that defamation claims are governed by a one year statute of limitation under 42 Pa.C.S.A. Section 5523(1) and that, since the tortious interference with business relations was based upon the same allegedly defamatory statements, that separate claim should also be found to be time-barred under the facts presented.

Judge Nealon held that when a plaintiff's tortious interference with business relations claim is predicated upon the same defamatory statements and actions serving as the basis for the plaintiff's defamation claim, both causes of action are governed by the one year statute of limitations rather than the tortious interference claim being subject to a two year limitations period. 

Anyone wishing to review Judge Nealon's decision in Pittsman may click this LINK.

Wednesday, April 17, 2013

Does Deletion of Facebook Profile Equal Spoliation of Evidence?

According to a recent March 29, 2013 New Jersey Law Journal article by Mary Pat Gallagher entitled "Party's Deletion of Facebook Page Ruled Spoliation of Evidence," New Jersey Federal U.S. Magistrate Judge Steven Mannion sanctioned a personal injury plaintiff under the spoliation doctrine in the case of Gatto v. United Airlines, 10-CV-1090 (D.N.J. 2013) for deleting his Facebook page during a pending case.

According to the article, the plaintiff was a baggage handler at JFK Airport in New York City who was injured at an accident at work when struck by a set of mobile stairs.  The article reported that the plaintiff deleted his Facebook account while the defendants were trying to access it during the course of discovery.

The article reported that the judge ruled that the plaintiff "had a duty to preserve his Facebook account at the time it was deactivated and deleted" and that the defense would be prejudiced by the destruction of this loss of the evidence.

The judge declined a request for attorney's fees and ruled that the appropriate sanction under the circumstances would be an adverse inference jury instruction, i.e., an instruction to the jury essentially that the jury may infer that, if this evidence was available, it would have been detrimental to the plaintiff's claims. 

Here is a LINK to the Gatto decision online.

CommentaryThe Gatto decision represents yet another example of courts applying the same old rules to new circumstances.  While there is a lot of uncertainty with novel issues being raised in areas such as Facebook Discovery and even in the Post-Koken context, the courts confirm time and time again that the same Rules of Civil Procedure and Discovery will simply be applied to these new questions in a straightforward manner.  Realizing this may assist litigants in predicting how such issues may play out if raised.

Judge Burke of Luzerne County Grants Summary Judgment in Premises Liability Case

Hon. Thomas F. Burke, Jr.
Luzerne County President Judge
In his recent Opinion in the case of Purdy v. Downs Racing, L.P. d/b/a Mohegan Sun at Pocono Downs, No. 15369-C of 2010 (C.P. Luz. Co. Dec. 4, 2012 Burke, P.J.), President Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas granted summary judgment in favor of the Defendant in a premises liability case arising out of an alleged slip and fall.  

In this matter, the Plaintiff alleged that she slipped and fell while located on the premises owned and maintained by the Mohegan Sun Casino.  The Plaintiff allegedly slipped and fell on a puddle of clear liquid approximately 12 inches in size.  

After discovery, the defense filed a Motion for Summary Judgment asserting that the Plaintiff had failed to meet her burden of proof on the issues presented.   More specifically, there was allegedly no evidence to establish how the puddle was created or how long it had existed prior to the Plaintiff’s fall.  As such, the defense asserted that there was no evidence of any actual or constructive notice on the part of the Defendant of any allegedly dangerous condition.   The court agreed. 

In his Opinion, Judge Burke confirmed that there was no evidence presented by the Plaintiff as to how long the puddle existed prior to the incident.  

The court also stated that the Plaintiff’s allegation that the puddle consisted of residual cleaning solution that had leaked from a carpet cleaning machine stored in a housekeeping closet near where she fell was nothing more than speculation.  The court noted that, while the liquid the Plaintiff allegedly fell on was clear, evidence was presented that the solution that the machine used was tinted.   There was also no evidence of any history of leaks with respect to the brand new machine.

Judge Burke held that, without any evidence that the equipment stored in the closet caused the puddle in question, the Plaintiff’s allegations were without support in the records and the Plaintiff was therefore unable to establish a breach of a legal duty.  

Judge Burke noted that the record before the court “at best demonstrated the mere existence of a harmful condition in a Defendant’s premises and the mere happening of an accident due to such a condition, which does not evidence a breach of the duty of the Defendant’s duty of care or raises a presumption of negligence.”   Accordingly, summary judgment was entered in favor of the Defendant.

Anyone wishing to review Judge Burke's decision in the Purdy case may contact me at dancummins@comcast.net.

Judge Minora of Lackawanna County Provides Lessons on Proper Pleading of Punitive Damages in Auto Accident Case

Hon. Carmen D. Minora
Lackawanna County
In his recent decision in the case of Calhoun v. Burns, No. 12-CV-2915 (C.P. Lacka. Co. Feb. 26, 2013 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed various Preliminary Objections filed by the Defendants to a Plaintiffs’ Complaint in an auto accident matter. 

By way of background, this matter involves a motor vehicle accident in which all Plaintiffs were passengers in a bus that was involved in a motor vehicle accident.  

After reviewing the Complaint and the challenges set forth in the Preliminary Objections, the Court ruled that all allegations as to recklessness, wanton, gross, and willful misconduct were to be stricken from the Plaintiff’s Complaint.  The Court did note that if discovery later revealed facts supporting such allegations, the Plaintiff would have the right to seek to amend and reinsert such language after which the Defendants would again have the right to object if warranted.   In his Opinion in this Calhoun case, Judge Minora provides a thorough overview of the law applicable to this type of pleading.  

The Court also sustained the Defendants’ Preliminary Objections as to generalized allegations of negligence where certain paragraphs in the Plaintiffs’ Complaint did not contain factual averments sufficiently specific enough to put the Defendants on notice of the particular allegations of negligence asserted against them.  

The Court also struck punitive damages language from the Plaintiffs’ Complaint given that no facts were alleged to set forth the essential factual circumstances under which punitive damages would be permitted under Pennsylvania law.  

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

U.S. Supreme Court Addresses Important Reimbursement of Liens Question

The United States Supreme Court has issued an important ERISA lien decision in a case it acquired out of the Third Circuit Court of Appeals.  The case is viewed as a defeat by those in the Plaintiff's bar in terms of liens owed in third party personal injury matters. 

Here is a LINK to the SCOTUS Blog's write up on the case, including a link to the actual Opinion.

Walk-ins Welcome at Tort Talk Expo 2013 CLE Seminar

The Tort Talk Expo 2013 CLE Seminar is set to take place tomorrow, Thursday, April 18, 2013 in the Seasons Ballroom (same place as last year) at the Mohegan Sun Casino beginning with Registration at 12:30 pm. 

Walk-ins are welcome.  Please bring check made out to "Tort Talk" (I do not have credit card capabilities).

Sunday, April 14, 2013

Medical Expenses Resulting From Out-of-State Car Accident Ruled Not Recoverable Under PA Law

An issue in personal injury civil litigation matters with minimal appellate guidance is the question of whether medical expenses incurred by a Pennsylvania resident injured in an out-of-state accident are recoverable in a Pennsylvania lawsuit.

That question was addressed by the U.S. Federal Court for the Eastern District of Pennsylvania in its recent memorandum opinion in the case of Reinert v. Nationwide Ins. Co., 2013 WL 1311097 (E.D. Pa. April 1, 2013 Stengel, J.) (mem.).

The Reinert case involved a Pennsylvania resident/insured who had been injured in an automobile accident that occurred in North Carolina accident.

The court ruled that under the appropriate conflicts of laws analysis, Pennsylvania substantive tort law would be applied.  Under such law (75 Pa.C.S.A. Section 1720, 1722), the court ruled that evidence of the plaintiff's medicals and lost wages that were paid by plaintiff's first party auto insurer are not admissible.

The Reinert  Opinion can be reviewed HERE.  The Court's accompanying Order can be viewed HERE.

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

Friday, April 12, 2013


Please consider registering for fast-approaching April 18, 2013 TORT TALK EXPO 2013 CLE SEMINAR at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania. 
WALK-INS ARE WELCOME (Check or cash only).

NOTE:  ADDITION TO LIST OF PRESENTERS: ATTORNEY PAUL OVEN of the Moosic, PA office of Dougherty, Leventhal & Price has been added as the Moderator for the View from the Bench portion of the program with Judge Minora and Judge Vough.

Thursday, April 11, 2013

Still Time to Register for Next Tuesday's 15th Annual Personal Injury Potpourri in Philadelphia

Unfortunately, I will now not be able to attend and present at next Tuesday's excellent CLE program being put on by Harris Bock, Esq. and The Dispute Resolution Institute entitled:

The 15th Annual Personal Injury Potpourri

This CLE event, which is annually one of the best in the Commonwealth, is set to take place on April 16, 2013 at the Philadelphia Convention Center in Philadelphia, PA.  With attendance already at over 400+ the event will also prove to be a great networking opportunity. 

Here are the details along with this LINK to the Register Online page.

Wednesday, April 10, 2013

Pennsylvania Supreme Court Denies Appeal in Smith v. Rohrbaugh Case

Attached is a copy of the Order issued earlier this week by the Pennsylvania Supreme Court in which that Court denied the Petition for Allowance of Appeal in the case Smith v. Rohrbaugh in which an en banc panel of the Pennsylvania Superior Court overruled Pusl v. Means, 982 A.2d 550 (Pa. Super. Sept 23, 2009), petition for allowance of appeal denied, 991 A.2d 313 (Pa. 2010).

In Pusl, a three judge panel of the Superior Court allowed the molding of a third party verdict downward to reflect the previous underinsured motorist settlement secured by a plaintiff for the same accident.

The en banc court in Smith v. Rohrbach  held that the Pusl holding was incorrect and therefore reversed a trial court order which had followed Pusl and molded a third party verdict to zero.

As such, Pusl is now considered officially no longer good law and Smith is the precedent on that particular issue.  Here is a link to the Supreme Court Order:


I send thanks to Attorney Scott Cooper of the Harrisburg law office of Schmidt Kramer and Attorney Paul Oven of the Moosic office of Dougherty, Leventhal & Price for publicizing this decision.

Tuesday, April 9, 2013


Click this LINK to go to the Registration Form for the PDI Annual Meeting set to take place at the Bedford Springs Resort in Bedford Springs, PA on July 18-19, 2013.  The PDI has arranged for a full slate of CLE opportunities, great speakers, and resort activities, including but not limited to golf.  Hope to see you there.

Sunday, April 7, 2013


Here is a LINK to a video presentation I did recently with Pennsylvania Law Weekly/The Legal Intelligencer reporter Ben Present on the issues regarding Twitter evidence in Civil Litigation matters.

To date, neither I nor the writers at the Pennsylvania Law Weekly have seen a Pennsylvania court decision on Twitter discovery or evidence in civil litigation matters.  I would be interested in being advised about any Pennsylvania cases anyone may be aware of pertaining to discovery and admissibility issues with respect to Twitter and Tweets. 

I would also be interested in hearing about any Facebook decisions you may be aware of that may not already be on the FACEBOOK DISCOVERY SCORECARD. 

Please contact me at dancummins@comcast.net if you have any info on the above.


Thursday, April 4, 2013


Please consider registering for fast-approaching April 18, 2013 TORT TALK EXPO 2013 CLE SEMINAR at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.


Tuesday, April 2, 2013

Allegations of Recklessness Upheld in York County Case

In her recent Opinion and Order in the case of Stout v. Loux, No. 2012-SU-2832-89 (C.P. York Co. March 5, 2013 Cook, J.), Judge Maria Musti Cook addressed Preliminary Objections filed by a Defendant against claims of reckless conduct in a Plaintiff’s Complaint arising out of a motor vehicle accident matter.  

By way of background, this matter arose out of an accident that occurred when the Plaintiff was working on a car in the pit area of the Susquehanna Speedway Park and was struck by a Sprint car driven by one of the Defendants.   The Plaintiffs filed a Complaint alleging negligence, gross negligence, and reckless conduct.   One of the Defendants filed Preliminary Objections to the claims for gross negligence and reckless conduct.  

In her decision, Judge Cook rejected the Defendant’s claim that there is no cause of action for “gross negligence.”   The court also rejected the Defendant’s argument that the Plaintiff’s Complaint failed to state a cause of action for recklessness as a matter of law.  

Although the defense argued that there was no recognize separate cause of action for gross negligence or any degrees of negligence, Judge Cook cited a number of cases in which Pennsylvania courts have at least recognized gross negligence as a theory or standard of care, if not as a separate cause of action.  Accordingly, the Defendant’s Preliminary Objections in this regard were overruled.

Judge Cook also noted that the Pennsylvania Supreme Court has defined recklessness as being separate from negligence by stating that “recklessness requires conscious action or inaction which creates a substantial risk of harms to others, whereas negligence suggest unconscious inadvertence.”   Tayar v. Camelback Ski Corp. Inc., 47 A.3d 1190 (Pa. 2012).   In reviewing the Plaintiff’s Complaint, the court found that the Plaintiff’s allegations that the basic elements of cause of action for recklessness.  As such, the Defendant’s Preliminary Objections in this regard were overruled as well.

Anyone desiring a copy of Judge Cook’s decision in the case of Stout v. Loux may contact me at dancummins@comcast.net.

I send thanks to Attorney David Willk of the Williamsport, PA law office of Lepley, Engelman & Yaw, LLC for bringing this case to my attention.

Post-Koken Bad Faith/UIM Decision Out of Schuylkill County

In his recent Schuylkill County Court of Common Pleas Opinion in the Post-Koken case of Barrett v. Pennsylvania Nat'l Mut. Cas. Ins. Co., No. S-1861-2012 (C.P. Schuylkill Co. March 18, 2013 Domalakes, J.), Judge John E. Domalakes granted an insurance carrier defendant's motion to sever a bad faith claim from a UIM claim but refused to stay the bad faith discovery.

The court based its severance decision on Pa.R.C.P. 213(b), which grants the trial courts discretion to sever cases where severance is deemed appropriate.  Here, the court thought that severance would serve the interest of fairness and avoid prejudice to the defendant carrier, particularly where punitive damages were being sought in the bad faith action and such damages were not at issue in the underlying UIM action.

The court refused to stay bad faith discovery efforts as there were protections in place in the event any issues arose in that regard.  The court also felt that, to stay bad faith discovery, would only serve to delay the resolution of the bad faith claim.

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

I send thanks to Attorney Pete Speaker of the Harrisburg office of the Thomas, Thomas & Hafer law firm for bringing this case to my attention.