Friday, December 27, 2013


The below article of mine was originally published in the December 17, 2013 edition of the Pennsylvania Law Weekly and is republished here with permission by American Law Media.  All rights reserved.

Courts Apply Same Old Rules to New Issues in 2013

Daniel E. Cummins
Pennsylvania Law Weekly
December 17, 2013
In 2013, many novel civil litigation issues came before the trial and appellate courts of Pennsylvania for decision. Some of these issues were resolved and some were left open for another day, but one key trend that emerged was courts wrestling with technological advances like social media, cellphones and GPS devices in the legal spectrum. In the end, it made for another interesting year of Pennsylvania jurisprudence.

Post-Koken Auto Litigation

In the case of Stepanovich v. McGraw and State Farm Insurance, PICS Case No. 13-2987 (Pa.Super. Oct. 15, 2013), the state Superior Court found no due process violation by the trial court's decision to allow the post-Koken trial involving a tortfeasor defendant and an underinsured motorist carrier defendant to proceed before a jury without any mention of the UIM carrier as a party defendant.

The Stepanovich court ruled that even accepting for purposes of argument that the plaintiff may have been entitled to inform the jury of State Farm's participation in the trial as a defendant, the plaintiff was still not entitled to a new trial, as there was no legal support for a finding of a due process violation that was per se prejudicial.

Another 2013 decision that came down the other way is U.S. District Judge James M. Munley of the Middle District of Pennsylvania's decision in the case of Noone v. Progressive Direct Insurance, No. 3:12cv1675 (M.D.Pa. May 28, 2013). In Noone, Munley ruled that all insurance information should be allowed in a post-Koken case so as to have a jury fully informed on all of the liability and damages issues presented.

Facebook Discovery

In 2013, Lackawanna County Court of Common Pleas Judge Terrence R. Nealon weighed in on the issue of Facebook discovery in the matter of Brogan v. Rosenn, Jenkins & Greenwald, PICS Case No. 13-2734 (C.P. Lackawanna County 2013).

In Brogan, the plaintiff was seeking the Facebook log-in username and password of a witness. Nealon essentially held that social media discovery requests must be properly framed so that only relevant and nonprivileged information is sought and produced. Nealon more specifically ruled that in order to obtain discovery of private information on social media sites, the seeker of such information must, at the very least, show that the information sought is relevant to the case at hand.

According to Brogan, one way to meet this requirement is by showing that the publicly available information on the website at issue reveals information pertinent to the matter and arguably calls the claims or defenses at issue in the suit into question.

The court in Brogan found that the plaintiffs had not met this test. Consequently, the demand for the disclosure of the Facebook username and password was found to be overly intrusive and would cause unreasonable embarrassment. As such, the motion to compel was denied.

Similarly, in the 2013 case of Hoy v. Holmes, PICS Case No. 13-0448, 107 Sch.L.R. 19 (C.P. Schuylkill Co. 2013), Schuylkill County Court of Common Pleas Judge John E. Domalakes denied a defendant's motion to compel access to a plaintiff's social media sites, including Facebook. The Hoy case involved a motor-vehicle accident case. The court denied the motion to compel after finding that there was no factual predicate shown that relevant information might be discovered on the private pages of the plaintiff's Facebook page.

Another interesting Facebook discovery case came out of Lancaster County this year in the form of Perrone v. Lancaster Regional Medical Center, No. CI -11-14933 (C.P. Lanc. Co. 2013). In Perrone, Lancaster County Court of Common Pleas Judge James P. Cullen handled a Facebook discovery dispute by ordering the parties to hire a neutral forensic computer expert to determine whether photos and videos on the plaintiff's Facebook page were posted before or after a slip-and-fall incident in order to determine whether or not such information was discoverable.

It is generally noted that the above cases are really only examples of the trial courts essentially applying the same old rules of discovery to a new set of circumstances. In other words, the courts have basically been concluding that all of these new forms of digital technology should be evaluated under the same long-standing rules applicable to more conventional forms of paper discovery and evidence. As Nealon noted in his opinion in Brogan, "To that extent, the resolution of social media discovery disputes pursuant to existing Rules of Procedure is simply new wine in an old bottle."

Cellphone Use in Auto Cases

The novel issue of whether punitive damages claims are appropriate in a case containing allegations that a motor-vehicle accident was caused by a defendant distracted by the use of a mobile device continued to create a split of authority in 2013.

In the case of Platukis v. Pocono Segway Tours, PICS Case No. 13-0967 (C.P. Monroe Co. April 8, 2013), Monroe County Court of Common Pleas Judge Arthur L. Zulick ruled that allegations in a complaint simply asserting that a defendant was using a cellphone while operating a motor vehicle, which in this case was a two-wheeled stand-up Segway device, did not give rise to the state of mind of an evil motive, or outrageous conduct, necessary to find that the defendant acted recklessly. As such, Zulick granted the defendant's preliminary objections and dismissed the punitive damages claims asserted.

In contrast, over in the federal court, a punitive damages claim was permitted in this context. In his August decision in the case of Scott v. Burke, 2013 U.S. Dist. Lexis 123432 (W.D. Pa. 2013), U.S. District Judge Mark R. Hornak of the Western District of Pennsylvania granted a plaintiff's motion to amend the complaint to add a punitive damages claim based upon a defendant tractor-trailer driver's alleged cellphone use at the time of a fatal motor-vehicle accident.

In the case of Rockwell v. Knott, PICS Case No. 13-2468 (C.P. Lacka. Co. Aug. 13, 2013), Nealon addressed an issue of first impression of whether a punitive damages claim may be pursued in an auto accident case against a defendant driver on the basis that the defendant was distracted by looking down at a global position system (GPS) on a smartphone at the time of the accident. While Nealon generally noted in his opinion that looking away from the road at a GPS on a smartphone to the point of distraction could arguably amount to reckless conduct to support a punitive damages claim, the record before the court in this particular matter failed to contain any evidence to support such a claim.

As such, the defendant's motion for partial summary judgment on the punitive damages claim was granted by the court.

Premises Liability

Over the past year, several trial court judges have noted the continuing viability of the assumption of risk doctrine in premises liability cases.

In his decision in the case of Burley v. University City Science Center, PICS Case No. 13-1424 (C.P. Phila. 2013), Philadelphia Court of Common Pleas Judge Allen L. Tereshko ruled that the plaintiff assumed the risk of an obvious danger when she knowingly walked across an icy patch in a parking garage. Tereshko stated the obvious in his opinion by noting that common knowledge dictates that ice is slippery and that to walk over an icy patch is to risk falling and suffering injuries.

Summary judgment was also granted in a Lackawanna County assumption-of-the-risk case, Rovinsky v. Lourdesmont, No. 2011-CV-2304 (C.P. Lacka. 2013). In this case, Senior Judge Peter O'Brien reviewed the doctrine in the context of a slip-and-fall case that arose out of a cafeteria food fight.

Relying primarily on the assumption-of-risk case of Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983), O'Brien granted summary judgment in favor of the defendant in Rovinsky after emphasizing that the plaintiff's testimony established that she was aware of the danger and nevertheless chose to voluntarily proceed through the danger.

Bad Faith

Another interesting issue over the past year or so has been whether or not expert witnesses are required in order to prove or defend against bad-faith allegations asserted against an insurance company.

In his May 31 decision in Schifino v. Geico, PICS Case No. 13-1330 (W.D. Pa. May 31, 2013), U.S. District Judge Terrence F. McVerry of the Western District of Pennsylvania granted the motions in limine filed by both parties in this regard and precluded the use of expert witnesses in an insurance bad-faith lawsuit as being unnecessary.

In Schifino, McVerry relied upon the case of Smith v. Allstate Insurance, 912 F.Supp.2d 242 (W.D. Pa. 2012), in holding that issues of alleged insurance bad faith reviewed by the expert witnesses were neither complex nor scientific, and, therefore, did not require specialized skill or knowledge by a jury to understand. Accordingly, such expert testimony was found to be unnecessary and was thereby precluded.

Looking to 2014

As is typically the case with the law, the resolution of some issues in 2013 created other issues to be reviewed in the future. Accordingly, it is anticipated that many of the same or similar issues that kept the courts and civil litigators busy this past year will continue into the next. 

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

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