Wednesday, September 30, 2015

Judgement Non Pros Granted in Monroe County Case Relative to Delays in Prosecuting Claim

In his recent decision in the case of Moll v. Reinhart and Rusk, PICS Case No. 15-1336 (C.P. Monroe Co. May 11, 2015 Williams, J.), Judge David J.Williamson granted a Defendant’s request for the entry of a judgment non pros in a case where nearly four (4) years passed between the filing of a Writ of Summons and the filing of a Complaint without any compelling reason for the delay being provided to the Court. Judge Williamson found that this amounted to a lack of due diligence on the part of the Plaintiff and, therefore, the Defendant’s Motion to Dismiss For Lack of Prosecution was granted.

This matter arose out of a fall from a work place ladder.

The Writ of Summons was filed the day before the expiration of the applicable statute of limitations and was timely served on one (1) of the Defendants. Another Defendant was not served until approximately two (2) years later with Writ. Although the Writ was filed in August of 2012, the Complaint was not filed until June of 2014.

Judge David J. Williamson
Monroe County
The Court noted that, in the interim, the only witness to the accident passed away. This, according to the Court, amounted to prejudice to all of the Defendants.

Anyone desiring a copy of this decision by the Court may contact the Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427.

Source: "Digest of Recent Cases" Pennsylvania Law Weekly "September 1, 2015"

Wednesday, September 23, 2015

Summary Judgment Granted in Schuylkill County Slip or Trip and Fall Case

In the case of Homa v. ZKG Realty, LLC., No. S-216-2013 (C.P. Schuylkill Co. July 29, 2015 Goodman, J.), the Court granted a Defendant’s Motion for Summary Judgment in a slip and fall case in the matter where the Plaintiff fell outside her doctor’s office.

According to the Opinion, the Plaintiff, who was eight (8) months pregnant with twins at the time, left her OB-GYN doctor’s office, stepped off the sidewalk and onto a grassy area to walk the direct route to her parking space when she slipped, tripped, stumbled, or fell by an allegedly dangerous condition caused by the negligence of the Defendant.

The Plaintiff’s Complaint asserted that the sidewalk abruptly ended without extending to the parking space and that patients were not warned or prevented from walking over the grassy area between the ending of the sidewalk and the beginning to the parking area. The Complaint also asserted that the Defendant’s negligent in failing to regularly inspect the sidewalk and the pathway.

The defense requested summary judgment for two (2) reasons. First, they asserted that the Plaintiff was unable to identify the cause of her fall and, therefore, could not meet her burden of proof. The Defendants noted that the Plaintiff admitted at her deposition that she did not know what caused her to fall. The Defendant’s secondary argument was that, if a dangerous condition did cause the Plaintiff’s fall, such condition was open and obvious to the Plaintiff.

In the end, after reviewing the current status of premises liability law in Pennsylvania, Judge Goodman ruled that the Plaintiff failed to meet her burden of proof by admitting several times during her deposition that she did not know what caused her to fall. Since the Plaintiff was unable to identify the cause of her fall, the court found that the Plaintiff could not sustain the burden of proof as to causation.

Moreover, even if the Plaintiff was caused to fall by wet or muddy grass, the Plaintiff did not identify that condition as the dangerous condition that the Defendants had an obligation to discover or remedy. The Court also noted that the Plaintiff had not established that the Defendants had a duty to inspect for mud or wet grass on a non-paved area on the premises.

Accordingly, summary judgment was entered in favor of the defense.

Anyone wishing to review a copy of this decision may click this LINK.

Monday, September 21, 2015

Federal Western District Court Upholds UIM Rejection Form

The case of Watson v. American National Prop. and Cas. Ins. Co., No. 2:15-CV-00888 (W.D.Pa. Sept. 11, 2015 Schwab, J.), involved a class action matter based upon an on alleged invalid UIM/UM rejection form.  

Concisely, the plaintiffs claimed that Rejection of UIM form was invalid because the second line of the form contained the word “Motorist” was added.  The form in policy read as follows: 

By signing this waiver I am rejecting Underinsured Motorist Coverage under this policy, for myself and all relatives residing in my household.

Underinsured Motorist Coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have enough insurance to pay all losses and damages. I knowingly and voluntarily reject this coverage.

The form required by the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. Section 173, does not contain the word Motorist in the second sentence.

According to the Opinion, the Third Circuit had previously decided a case with exactly the same addition to the form, and concluded that it was a clarifying word and therefore did not invalidate the form.  Judge Schwab concluded that, since the language in Third Circuit case was identical to the language at issue in this case, he would follow the Third Circuit’s decision and, as such, dismissed this case. 

Anyone wishing to review this Opinion, may click this LINK.

I send thanks to Attorney Sheila M. Burke of the Pittsburgh law firm of Burke Cromer Cremonese, LLC for bringing this case to my attention.

Thursday, September 17, 2015

Order of Applying Comparative Negligence Percentage Followed By Liability Credit in Post-Koken Auto Verdict

In the case of Pusey v. Allstate Insurance Company, PICS Case No. 15-1258 (C.P. Delaware Co. May 21, 2015 Green, J.), the Court addressed the proper procedure for applying credits and comparative negligence in an underinsured motorist trial.

According to a summary of the Opinion, this matter arose out an incident during which a minor was struck by a vehicle while the minor was riding his bicycle.

Prior to trial, the tortfeasor’s carrier tendered its $25,000.00 policy limits to the Plaintiff. The Plaintiff then brought suit against the UIM carrier for underinsured motorist coverage.

After a trial, the jury awarded the Plaintiff $58,600.00. However, the jury also attributed 41% of the negligence to the minor Plaintiff.

When a dispute arose over how to apply the credit for the tortfeasor’s limits and the comparative negligence percentage, the court ruled that the comparative negligence percentage should be applied first, and then followed by the application of the credit owed from the tortfeasor’s liability limits.

This matter was apparently going up on appeal as it appeared that the trial court’s opinion was a Rule 1925 Opinion. Anyone wishing to review a copy of this decision may contact the Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and pay a small fee.

Source: "Digest of Recent Opinions," Pennsylvania Law Weekly (August 18, 2015).

Tuesday, September 15, 2015

Judge Brann of Middle District Applies Tincher in Recent Products Liability Case

In his recent decision in the case of Fassett v. Sears Holdings, No. 4:15-cv-00941 (M.D. Pa. Aug. 28, 2015, Brann, J.), United States District Judge Matthew W. Brann granted in part and denied in part various Motions to Dismiss filed by separate Defendants Sears and Kohler Co. in a products liability case involving a Plaintiff allegedly injured when his riding lawnmower allegedly exploded and caused personal injuries.

The Court found that many of the claims were sufficiently pled and ruled that other issues should be allowed to proceed into the discovery phase of the matter.

The Court did grant a Motion to Dismiss the Plaintiff’s wife’s claim for negligent infliction of emotional distress given that the Plaintiff-wife did not actual witness her husband being injured, but rather arrived at the scene after the fact while medics were attending to the Plaintiff.

In the case, the Plaintiffs alleged that the lawnmower defectively designed, manufactured, and sold in a dangerous or hazardous condition and in the manner that did not include adequate safety devices. The Plaintiff alleged that an explosion with the lawnmower occurred during routine use of the machine and that the Defendants knew or should have known that it was possible for the machine to explode and catch fire. In the Complaint, the Plaintiff asserted allegations of negligence, strict liability for design defect, breach of warranty, gross negligence, recklessness, and other claims.

Judge Matthew W. Brann
Judge Brann denied the Defendant’s Motion to Dismiss the punitive damages claims indicating that the Plaintiffs had alleged that the lawnmower was sold by the Defendants despite the Defendant’s alleged knowledge of its dangers. The Court stated that this issue should be allowed to be reviewed and developed through discovery.

The Court did grant the Defendant’s Motion to Dismiss the Breach of Implied Warranty Claims under a statute of limitations argument.

Notably, Judge Brann also cited to the Pennsylvania Supreme Court’s recent decision in the Tincher v. Omega Flex in allowing the strict liability claims asserted against Defendant Kohler to proceed into the discovery phase.

Anyone wishing to review this Opinion by Judge Brann may click this LINK.

I send thanks to Attorney Kenneth T. Newman of the Pittsburgh office of Thomas, Thomas & Hafer for bringing this decision to my attention.

Friday, September 11, 2015

Trial Court Reaffirms Ruling Allowing Plaintiff's Attorney At Neuropsychological IME; But Court Also Allows for Immediate Appeal of Issue

In the case of Romagnoli v. Westmoreland Reg. Hosp., No. 1514 of 2011 (C.P. Westmoreland, Aug. 26, 2015 Marsili, J.) Judge Anthony G. Marsili denied a Defendant's Motion for Reconsideration of a prior Order entered in the same case allowing Plaintiff to have counsel or representative present at independent neuropsychological examination.  The court also reaffirmed its prior decision to allow the Plaintiff to make an audio or stenographic recording of examination.

However, noting the split of authority on the issue, the Romagnoli court granted the defense an immediate right of appeal to have the appellate court address the question presented.

Anyone wishing to review the court's decision in Romagnoli may click this LINK.

I send thanks to Attorney Patrick J. Loughren of the Pittsburgh law office of Loughren, Loughren & Loughren, P.C. for bringing this decision to my attention.

Wednesday, September 9, 2015

Important Voir Dire Issues Revisited by Pennsylvania Superior Court

Jury selection issues were again reviewed by the Pennsylvania Appellate Courts in the case of Shinal v. Toms, No. 1714 MDA 2014, 2015 Pa. Super. 178 (Pa. Super. Aug. 25, 2015 Allen, J., Lazarus, J., and Platt, J.)(Opinion by Platt, J.). According to the Court’s Opinion in this medical malpractice case, the Plaintiffs filed an appeal following a defense verdict of no liability on the issue of informed consent. Among the challenges on appeal was the Plaintiff’s challenge to the denial of their Motion to Strike certain prospective jurors for cause. 

The Opinion noted that, at an initial trial in February of 2013, the trial court and the parties attempted unsuccessfully to impanel a jury. According to the Opinion, the trial court was unable to impanel a jury as too many of the prospective jurors were dismissed because they were either employed or treated or insured by one of the Defendant medical entities (Geisinger). As such, the trial was continued to a later date.

In the interim, the Geisinger Defendants were dismissed by way of summary judgment, and a Dr. Toms was the only remaining Defendant when the case came back to trial for a second round of jury selection.

According to Superior Court’s Opinion in this Shinal case, the trial court had endeavored to implement what the trial court perceived to the principles enunciated in the case of Cordes v. Assocs. of Internal Medicine, 87 A.3d 829, 833-34 (Pa. Super. 2014) (en banc) (plurality opinion), appeal denied, 102 A.3d 986 (Pa. 2014).

In this regard, during voir dire, the Plaintiffs were permitted to question each prospective juror whether they were an employee of any Geisinger entity, or if a relative was employed by a Geisinger entity, and whether or not those persons (the jurors) perceived themselves to be employed by the same company as the remaining Defendant, Dr. Toms, who was affiliated with Geisinger. If the jurors responded affirmatively, the jurors were asked if they believed or perceived that a verdict against Dr. Toms would have a negative financial impact on their employer.

The Superior Court also permitted the Plaintiff to ask the jurors if they, or a relative, had ever been treated as a patient at Geisinger and, if so, whether they received a favorable result with that treatment.

The Superior Court also noted that the trial court allowed the jurors to be questioned overall on whether they could render a fair and impartial verdict in the case presented. According to the Opinion, all of the prospect jurors indicated they could be fair and impartial.

On appeal, the Plaintiff raised issued with respect to four (4) prospective jurors. In the Shinal Opinion, the Pennsylvania Superior Court reviewed the issues raised with respect to each of these jurors, all of whom had previously worked, or continued to work, for a Geisinger entity in one capacity or other.

The Shinal court noted that none of these jurors at issue knew the Defendant, Dr. Toms, personally, had worked with him, or had been treated by him.

The trial court had denied Plaintiff’s Motion to Dismiss these four (4) jurors. The Plaintiff ended up using four (4) of their peremptories challenges and excluded those prospective jurors from the jury.

On appeal, the Plaintiffs argued, in part, among several issues, that the trial court erred in not striking the jurors at issue for cause, thereby requiring the Plaintiff utilize their peremptory challenges which they could have arguably used to strike other jurors.

The Shinal court disagreed with the Plaintiff’s contentions that the trial court had erred in this regard. In so ruling, the Shinal court set forth the well-settled standard of review of a court’s decision not to strike a potential juror for cause. This can be reviewed at page 13-15 of the Superior Court’s Opinion which can be read at the link below.

Concisely, the Superior Court in Shinal found no evidence to support a claim that any direct relationship existed between the Defendant, Dr. Toms, and the prospective jurors.

The court also rejected the Plaintiff’s contention that the prospective jurors should have been stricken because of an indirect relationship with the Defendant, Dr. Toms through the jurors’ own relationship with the Geisinger entity.

In ruling in this regard, the Pennsylvania Superior Court noted that both the Plaintiff and the trial court relied heavily upon the Cordes Opinion. However, the court in Shinal stated that "Cordes is a plurality opinion" and that "[a] plurality opinion is not binding precedent." See Shinal at p. 15.

Overall, the Shinal court found that its independent review of the record confirmed that none of the challenged prospective jurors had such a close relationship with participants in the litigation on which prejudice should have been presumed. The Shinal court rejected any reliance on Cordes in an attempt to expand the range of relationships from which prejudice must be presumed in the context of jury selection.

The Shinal court reiterated the principle of law that it is the trial court judge who is in the best position to assess the credibility of a juror and determine if that juror is able to render a fair and impartial verdict.

Accordingly, the Shinal court rejected this portion of the Plaintiff’s appeal from the trial as the appellate court found no evidence that any of the prospective jurors had any direct close relationship with any of the parties or that they should have been stricken for cause as being presumptively prejudiced, biased, or impartial.

Anyone wishing to review this decision, may click this LINK.

UPDATE:  The Pennsylvania Supreme Court reversed the Superior Court's decision in this case at 162 A.3d 429 (Pa. 2017).

Wednesday, September 2, 2015

Tort Talk Selected to Compete in The Expert Institute's Best Legal Blog Contest -- Please Vote for Tort Talk

I write to say thank you to those who nominated the Tort Talk blog ( as I have been notified that Tort Talk has been selected from more than 2,000 nominees to be one of only 250 blogs chosen to compete in The Expert Institute's Best Legal Blog Contest!

Now the voting segment of the competition is under way, where Tort Talk will compete for rank with the other legal blogs in the competition.
Here is a Link to use to please cast your vote for Tort Talk if you are willing to do so:
Thanks again for your support for Tort Talk--I truly appreciate it!

Dan Cummins

Tuesday, September 1, 2015

Summary Judgment Granted in Monroe County Slip and Fall Case

In his recent decision in the case of Zangenberg v. Weis Markets, Inc., PICS Case No. 15-1185 (C.P. Monroe Co. April 1, 2015 Higgins, J.), Judge Stephen M. Higgins of the Monroe County Court of Common Pleas granted Defendant Weis’ Motion for Summary Judgment in a slip and fall case.

According to a summary of the Opinion, the Plaintiff slipped and fell in the store due to alleged slippery conditions and/or a wax build up on the floor that amounted to an allegedly dangerous condition.

The Defendant store filed a Motion for Summary Judgment claiming that the Plaintiff failed to produce any evidence that the store had actual or constructive notice of the alleged condition.

The Court found that the Plaintiff did not produce any evidence that the application of wax on the floor created a dangerous condition that was so obvious as to amount of evidence which an inference of negligence would arise.

Rather, the Court noted that the Plaintiff only produced the testimony of her daughter who stated that there was a black skid mark on the floor.  However, the record also established that Plaintiff’s daughter was not present at the time the Plaintiff fell and could not identify the mark as coming from the Plaintiff’s shoe.  Further, the daughter did not further examine the floor.

Moreover, there was evidence in the record that a Weis employee testified that she was present when the Plaintiff fell and, after assisting the Plaintiff up, the employee looked at the area and did not see anything on the floor.

The facts of the case also confirm that the Plaintiff admitted that she did not remember looking at the ground prior to her fall. The Plaintiff had no evidence of any debris on the floor. Rather, the Plaintiff stated the floor was very slippery but that she did notice any water, oil, grease, or foreign substance on the floor immediately after her fall. Moreover, the Plaintiff did not notice anything on her hands, clothing, or her shoes which could have led her to conclusion of what caused her to fall.

Finding no actual or constructive notice established by the Plaintiff, the court granted the Defendant’s Motion for Summary Judgment in this slip and fall case.

If you wish to review this Opinion, you may contact the Instant Case Service at the Pennsylvania Law Weekly at 1-800-276-7427, provide the above PICS Case No., and pay and pay a small fee.

Source: "Digest of Recent Opinions," Pennsylvania Law Weekly (August 4, 2015).