Friday, January 30, 2015

Judge Williamson of Monroe County Follows Rule of Consolidation for Post-Koken Negligence/UIM Claims

Another Monroe County decision in favor of consolidation of Post-Koken negligence/UIM claims was recently handed down by Judge David J. Williamson in the case of Cahill v. Fritz and Hartford Ins. Co., No. 7056-CV-2014 (C.P. Monroe Co. Jan. 16, 2015 Williamson, J.).

This automobile accident matter involved claims of negligence and a request for punitive damages against the defendant driver combined with a UIM claim against the Plaintiff's automobile insurance carrier.

The defendant driver was charged with a DUI which led the Plaintiff to plead for punitive damages.  As such, the defendant UIM carrier filed Preliminary Objections seeking a severance of claims in an effort to avoid the potential end result of being at the same trial with that defendant driver and an angry jury.

Judge David J. Williamson
Monroe County
In denying the UIM carrier's preliminary objections requesting a severance of claims based upon a misjoinder of causes of actions argument, Judge Williamson referred to a prior decision by his fellow Monroe County judge, the Hon. Arthur Zulick in the case of Cocuzza v. Castro, No. 406-CV-2012 (C.P. Monroe 2012).  The court found that all claims presented arose out of the same accident and, therefore, could be joined in one action.

As for the argument by the UIM carrier that it would be prejudiced at trial due to the defendant driver's alleged DUI status and the punitive damages claim, Judge Williamson did note that issue of whether the case should be bifurcated for trial purposes could be presented to the court at the conclusion of discovery. 

But for now, at the preliminary objections stage, Judge Williamson found that the case should remain consolidated for discovery purposes in the interests of judicial economy.

Anyone wishing to secure a copy of Judge Williamson's Opinion in the Cahill case may contact me at dancummins@comcast.com.

I send thanks to the prevailing Plaintiff's attorney, Kevin Conaboy, Esq., of the Scranton, PA law firm of Abrahamsen, Conaboy & Abrahamsen for bringing a copy of this decision to my attention.

I also note that the Post-Koken Scorecard has been updated with this decision.


Commentary:  While the Monroe County Court of Common Pleas has repeatedly ruled in favor of the consolidation of Post-Koken negligence and UIM claims, the same court has also repeated ruled in favor of the severance of Post-Koken combined UIM and bad faith claims. 

The relevant decisions in this regard can be found on the Post-Koken Scorecard.

Judge Zulick of Monroe County Reaffirms Pennsylvania Social Host Liability

In his recent decision in the case of Cicardo v. Mangual, No. 7668-CV-2010 (C.P. Monroe Co. Jan. 22, 2015 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas reaffirmed the law in Pennsylvania that one minor (i.e., a person under 21 in this context) cannot be liable as a social host to another minor in a case involving a motor vehicle accident allegedly arising out of a Defendant driver driving under the influence after having left house parties at which alcohol was served.  

According to the Opinion, the Defendant driver was 17 years of age at the time of the accident.  

The court noted that the law concerning social host liability as it relates to minors is settled in Pennsylvania.  

More specifically, while adults have no duty as social host to another adult, the Pennsylvania Supreme Court held in Congini by Congini v. Portersville Valve Co., 470 A.2d 515 (Pa. 1983), that an adult social host may be liable for furnishing alcohol to a minor. 

Thereafter, in Kapres v. Heller, 640 A.2d 888 (Pa. Super. 1994), the Pennsylvania Supreme Court held that a minor cannot be liable as a social host to another minor.  

In the case before Judge Zulick in Cicardo , the minor Defendants who allegedly provided alcohol to the then 17 year old Defendant driver were both 20 years of age at the time of the collision.  

Judge Arthur L. Zulick
Monroe County
Judge Zulick rejected the Plaintiff’s argument that there should be a distinction between minors age 17 and younger, and minors between the ages of 18 and 21.  The Plaintiff argued that, even if there is no social host liability between minors, that rule should apply only to similarly situated individuals and that, in this case, individuals under the age of 18 and individuals between the ages of 18 and 21 were not similarly situated.  

Judge Zulick noted that the holding in Kapres did not distinguish between minors under 18 and minors under 21.   He additionally noted that the statutory language in 18 Pa. C.S.A. §6310.1 (selling or furnishing liquor or malt or brewed beverages to minors) likewise did not differentiate between minors’ ages.  

Rather, Judge Zulick reiterated that the “bright line rule established in Kapres is that ‘one minor does not owe a duty to another minor regarding the furnishing or consumption of alcohol.'”   Quoting Kapres, 612 A.2d at 891.    

As there were no issues of material fact presented in this matter, and given that all of the individuals involved were minors, Judge Zulick the minor Defendant social hosts were not liable under Pennsylvania law for allegedly serving alcohol to the minor Defendant driver on the evening of the subject motor vehicle accident.  
 

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

Wednesday, January 28, 2015

Corporate Defendant Protected By Good Samaritan Civil Immunity Law




In the recent Philadelphia County Court of Common Pleas decision in the case of Kromferd v. Sugarhouse HSP Gaming LP, PICS Case No. 14-2015 (C.P. Phila. Co. Dec. 9, 2014 Massiah – Jackson, J.), the court ruled that a Defendant casino’s duty of care to a customer who fell ill was solely to provide first aid and summon medical assistance.   As such, the Defendants demurrer to the Plaintiff’s Complaint was sustained, in part, with prejudice.  

According to a summary of the Opinion, when the Plaintiff collapsed at the Sugarhouse Casino in Philadelphia, employees of the casino commenced first aid on the Plaintiff while waiting for the paramedics to arrive.   The fire department rescue personal eventually arrived and transported the Plaintiff to the hospital where he later passed away.  

The Plaintiff filed suit alleging that the Defendant casino and its employees breached their duty of care in failing to swiftly and adequately begin resuscitation efforts and/or summoning other employees who could render proper assistance, among other allegations.  

The trial court ruled that, in Pennsylvania, the Restatement (Second) of Torts §314(A) has been adopted, outlining the duties owed by a defendant possessor of land to its patrons on premises open to the public.

The trial court rejected Plaintiff’s allegations that the Defendant’s employees failed to begin or perform resuscitation or to use an AED device.  

The trial court in Kromferd ruled that the Defendant’s duty to the Plaintiff was solely to provide basic first aid and to summon medical assistance.  

The trial court also ruled that the Defendant, even though it was a corporate Defendant, was statutorily immune under the Pennsylvania Good Samaritan Civil Immunity Law, which statutes grants immunity to “any person” who renders emergency care to another.  
As noted, the demurrer filed by the Defendant was sustained in part with prejudice.  

I do not have a copy of this decision.  Anyone wishing to secure a copy of this decision may call the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and provide the above-noted PICS Case No. and pay a small fee. 

Source: "Case Digests" Pennsylvania Law Weekly (December 23, 2014).  


 

Monday, January 26, 2015

Appeal of MSJ Order Quashed in Consolidated Case Where Not All Defendants Dismissed


In the recent Superior Court case of Malanchuk v. Tsimura, 2014 Pa. Super. 277, 1379 EDA 2012 (Dec. 17, 2014 Ford Elliot, P.J.E.), an en banc Court ruled in this construction accident personal injury case that the Plaintiff could not take an appeal from a Summary Judgment against a single Defendant when that negligence case was consolidated with a negligence case against another action where the other Defendant did not receive a Summary Judgment.


The court rejected the Plaintiff's argument that, although the separate claims against the separate Defendants were consolidated, the entry of summary judgments against one Defendant but not the other should be viewed as separate final Orders from the trial court capable of being appealed.


Rather the Malanchuk Court ruled that the Order appealed from was interlocutory in nature as the Order did not dispose of all parties or all claims.  The Plaintiff did not follow the required procedures to seek permission to file an appeal from an interlocutory Order.  As such the appeal was quashed.

I send thanks to the prevailing attorney Robert Horn of Connors Law in Exton, PA for bringing this case to my attention.

Anyone wishing to review this case may click this LINK.



Source of Image: xenonnet.blogspot.com

Friday, January 23, 2015

Eastern District Federal Court Dismisses Auto Insurance Bad Faith Claims

In its recent memorandum decision in the case of Mozzo v. Progressive Ins. Co., No. 14-5752 (E.D. Pa. Jan. 5, 2015 Buckwalter, S.J.) (mem.), the Federal District Court for the Eastern District of Pennsylvania dismissed a plaintiff’s auto insurance bad faith claims and granted the right to amend but stayed any bad faith discovery in the meantime.

In Mozzo, the Plaintiff insured sued his auto carrier alleging bad faith and breach of contract claims.

The court ruled that mere allegations that Plaintiff insured complied with investigation requests, that the auto insurer arbitrarily and capriciously failed to honor its contractual obligations, that plaintiff sustained and continues to sustain damages, and that the auto insurer has acted in bad faith, are insufficient to support a bad faith claim under Pennsylvania law.  The court more specifically found that the plaintiff failed to set forth cogent facts as to the Defendant auto insurer's actions, let alone any factual support of alleged acts or omissions from which the court could even infer a proper bad faith claim.

As such, the Plaintiff's bad faith claim was dismissed.  However, the court did grant the Plaintiff leave to amend.

Moreover, the court ruled that, given that the bad faith claim was dismissed, the request for attorney fees is not available and, as such, that claim was also dismissed.

Last but not least, the court further noted that the Plaintiff was not entitled to bad faith discovery until he sets forth some facts upon which the court could plausibly infer the existence of a bad faith claim.



 

New Rules Regarding Allowable Fees Issued by Medical Providers for Copying Medical Records

I received the below information by email from MCS (www.themcsgroup.com), a subpoena/records acquisition/deposition vendor that I utilize in my practice.  As the info may impact many in terms of costs of securing copies of medical files from medical providers, I thought I would pass it along verbatim:


Effective January 1, 2015, the Commonwealth of Pennsylvania has adjusted the fees for copying medical records at all health care institutions within the state. The new rules are as follows:
 
1. Flat fees apply to amounts that may be charged by a health care facility or health care provider when copying medical charts or records either:
 
(a)  for the purpose of supporting any claim or appeal under the Social Security Act or any Federal or State financial needs based program
 
(b)  for a district attorney.
 
2. An insurer shall not be required to pay for copies of medical records required to validate medical services for which reimbursement is sought under an insurance contract, except as provided in:
 
(a)  the Workers' Compensation Act and the regulations promulgated thereunder
 
(b)  75 Pa.C.S. Chapter 17 (relating to Motor Vehicle Financial Responsibility Law) and the regulations promulgated thereunder
 
(c)  a contract between an insurer and any other party.
    
The charges listed in this advisory do not apply to an X-ray film or any other portion of a medical record which is not susceptible to photostatic reproduction.
   
The Secretary of Health is also directed to make a similar adjustment to the flat fee which may be charged by a health care facility or health care provider for the expense of reproducing medical charts or records where the request is:

(a)  for the purpose of supporting a claim or appeal under the Social Security Act or any Federal or State financial needs based benefit program
 
(b)  made by a district attorney.
    
The Secretary of Health bases these adjustments on the most recent changes in the Consumer Price Index reported annually by the Bureau of Labor Statistics of the United States Department of Labor.
   
For 2015, the following fees may be charged by a health care facility or health care provider for production of records in response to subpoena or request:

Search & Retrieval of Records Flat Fee
$21.69
Amount charged per page for pages 1-20
$1.46
Amount charged per page for pages 21-60
$1.08
Amount charged per page for pages 61-end
$0.36
Amount charged per page for microfilm copies
$2.16
     
These fees will apply for paper copies or reproductions on electronic media whether the records are stored on paper or in electronic format.

Note: In addition to the amounts listed above, charges may also be assessed for the actual cost of postage, shipping and delivery of the requested records.



For more information please contact

Alyson Gabel

1.800.473.5003 ext. 8135

Wednesday, January 21, 2015

Superior Court Begrudgingly Applies Statute of Limitations Discovery Rule in Limited Tort Context

In its decision from earlier this week in the case of Varner-Mort v. Kapfhammer, No. 261 WDA 2014, 2015 Pa. Super. 14 (Pa. Super. Jan. 21, 2015 Ford Elliott, P.J.E, Allen, and Strassburger, J.J.)(Op. by Strassburger), the Pennsylvania Superior Court addressed the application of the discovery rule in the context of a limited tort case.  In the end, the court reversed a trial court's entry of summary judgment in favor of a defendant.

This matter arose out of a motor vehicle accident that occurred on May 6, 2009.  There was no dispute that the Plaintiffs were covered by the Limited Tort Election.

Over two years later, on June 27, 2011, the husband and wife Plaintiffs filed their negligence personal injury/loss of consortium Complaint. 

In his Answer and New Matter, the Defendant asserted a statute of limitations defense.  The defense later filed a motion for summary judgment alleging, in part, that medical records produced in discovery confirmed that the Plaintiff sought out medical treatment on the date of the accident and was diagnosed with injuries.  The injuries were initially diagnosed as a back sprain with paresthesia (numbness and tingling) to the lower extremity. 

Accordingly, it was the defense position that the injured party Plaintiff was aware of her alleged car accident-related injuries from the date of the subject accident.   The defense also noted that the records confirmed that the Plaintiff continued to treat for low back complaints up through 2011. 

As such, it was the defense position that, pursuant to the applicable two year statute of limitations, the Plaintiffs were required to file their claim by May 6, 2011.  The defense contended that, since the Complaint was not filed until June of 2011, the Plaintiffs' claims were barred by the statute of limitations.

Given the application of the limited tort election, the Plaintiffs countered with the creative argument that, under the discovery rule, the statute of limitations should not be deemed to begin to run until the injured party Plaintiff discovered that she sustained a "serious injury" as a result of the accident.  In this regard, the Plaintiffs argued that the injured party did not have an MRI until August of 2009.  Accordingly, there was an alleged genuine issue of material fact as to when the Plaintiff discovered that she sustained a "serious injury" such that the motion for summary judgment should be rejected and the case allowed to proceed to a jury.

Whereas the trial court in Blair County rejected the Plaintiffs' argument and granted summary judgment on the statute of limitations issue, the Pennsylvania Superior Court accepted this argument of the Plaintiffs and overruled the trial court.

In so ruling the Varner-Mort relied upon the prior similar case of Walls v. Scheckler, 700 A.2d 532 (Pa. Super. 1997), which addressed the same issue and came to the same result, i.e.,  the statute of limitations in limited tort case should be deemed to start to run when a Plaintiff is aware that he or she may have sustained a "serious injury."

The Walls court reasoned that "Since, under the provisions of [Section 1705, the limited tort statute], a limited tort plaintiff does not have a valid cause of action unless and until an injury rises to the level of a 'serious injury,' and since the statute of limitations period does not ordinarily begin to run until a cause of action accrues, we conclude that the statute of limitations period cannot begin to run on a limited tort plaintiff until he knows or reasonably should know that he has sustained the requisite serious injury."  Walls, 700 A.2d at 533-534.

Apples and Oranges

Notably, the Judges deciding this Varner-Mort case stated that, while they were bound to follow the Walls decision as binding precedent, the Varner-Mort majority viewed the Walls decision as being "just plain wrong."  Varner-Mort at p. 7.  The Varner-Mort majority would have preferred to follow the discovery rule in its ordinary application.

This was particularly so given that, regardless of the Plaintiff's tort status, the Plaintiff was still entitled to pursue a claim economic damages, such as wage losses or medical expenses, even if the Plaintiff failed to show that she sustained a serious injury.  The Varner-Mort majority failed to see why a limited tort plaintiff should be treated any differently in terms of the statute of limitations beginning to run when the Plaintiff was aware of her physical injury from the accident at the scene or when it was diagnosed in the emergency room on the day of the accident.

Nevertheless, the Varner-Mort court obviously reluctantly applied the law as stated in the Walls case and ruled that genuine issues of material fact existed as to when the Plaintiff would have been aware that she sustained a serious injury such that the trial court's entry of summary judgment would be reversed and the case remanded for further proceedings.

Anyone wishing to review this Opinion may click this LINK.

President Judge Kate Ford-Elliott's Concurring Opinion can be viewed HERE.  In her Concurring Opinion, President Judge Ford-Elliott noted her agreement with the result and distanced herself from the statement that the Walls decision was wrongly decided.


For Kramer's take on the "statue" of limitations, click on the photo below:



 
Source of Video:  Seinfeld

Tuesday, January 20, 2015

Summary Judgment Entered in Carbon County Trip and Fall Case

In his recent September 30, 2014 decision in the case of Rochow v. Neast, No. 12-CV-0737 (C.P. Carbon Co. Sept. 20, 2014 Serfass, J.), Judge Steven R. Serfass, of the Carbon County Court of Common Pleas, granted summary judgment to a Defendant property owner in a trip and fall case involving a hole in steps on the premises.  

In this matter, the evidence before the court on summary judgment revealed that the Plaintiff had visited the Defendant’s property between 20-52 times prior to her fall.   Moreover, the Plaintiff had previously used the subject steps between 40-104 times.  She admittedly noticed the subject hole on the steps on the first time she visited the property.   The Plaintiff also admitted in her deposition that she understood that there was the potential for “some sort of accident” if she did not watch while she was going while on those steps.  

The Plaintiff additionally admitted at her deposition to observing the subject hole on the steps while entering the Defendant’s property on the day of her fall.  She also admitted that, while coming down the steps at the time of her fall, she was zippering her jacket and not looking down at the steps.  

The Plaintiff argued in her Brief in Opposition to the Defendant’s Motion for Summary Judgment that, while she acknowledged being aware of the hole on the steps and that she might possibly be injured, there was no evidence that she knew of the actual risk involved, i.e., suffering multiple fractures.  

Although the court’s Order in this matter granting the Defendant’s Motion for Summary Judgment was by Order, Judge Serfass did include a detailed footnote outlining the rationale for his Opinion.  

In granting the Motion for Summary Judgment, Judge Serfass relied primarily on the Restatement (Second) of Torts §342 which provides that a possessor of land is subject to liability for physical harm to a licensee caused by a condition on the land only if:  

(a)        the possessor knows or has reason to know if the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or      realize the danger;

 (b)        he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved; and,

(c)        the licensee does not know or have reason to know the condition and the risk involved.  

 
As noted above, the Plaintiff was attempting to maneuver around the Motion for Summary Judgment by asserting that neither she nor the possessor of land were aware of the specific risk involved.  

Relying upon Pennsylvania Superior Court precedent, Judge Serfass stated that “the fact that Plaintiff argues that she was not aware of the severity of the potential injuries that could be sustained as a result of falling from “Defendant’s steps is of no consequence in determining whether she has satisfied the third element of §342.”

Here, the Plaintiff admitted that she knew of the existence of the hole from the first time she visited the premises and that she knew she could potentially fall if she did not pay attention to where she was stepping.   Judge Serfass noted that precedent supported his conclusion that where a Plaintiff admits to knowing the potential risk associated with the conditions on the Defendant’s property, the requirements of the Restatement (Second) of Torts §342 were satisfied.  

Stated otherwise, “although Plaintiff may not have known that she would have sustained the exact injuries she ultimately did, she knew that the condition of the steps posed a danger of causing one to fall.”  

On this basis, the court granted the summary judgment Motion filed by the Defendant, finding that the Plaintiff could not satisfy the third element of §342 noted above.  

It is noted that the prevailing defense attorney in this matter was Attorney Chris Carling, in-house counsel in the Moosic, Lackawanna County, Pennsylvania office of Travelers Insurance Company.  


Anyone wishing to review this trip and fall decision of Rochow v. Neast out of Carbon County may click this LINK.

Monday, January 19, 2015

Corrected Link to Pennsylvania Law Weekly Article on Products Liability Issue



Here's the CORRECTED LINK to a Pennsylvania Law Weekly article by Lizzy McLellan (a great name for a reporter) entitled "Citing Tincher, Lackawanna Judge Upholds $5.9M Verdict."  The verdict was secured by Attorneys James Mundy and Bruce Zero of the Scranton, Lackawanna County, PA law firm of Powell Law. 

The article outlines Judge Gibbons' Opinion in the Cancelleri case, which appears to be one of the first, if not the first, trial court decision to tackle the new products liability analysis outlined by the Pennsylvania Supreme Court in the Tincher v. Omega Flex case.  A Tort Talk post on the Cancelleri decision can be viewed HERE [and there is a Link to Judge Gibbons' Opinion in that post.

If you are not able to view the above article at the Link provided, please email me at dancummins@comcast.net and I will send you a copy.

Judge Gibbons' Products Liability Opinion (Applying Tincher) Highlighted in Pennsylvania Law Weekly



Here's a LINK to a Pennsylvania Law Weekly article by Lizzy McLellan (a great name for a reporter) entitled "Citing Tincher, Lackawanna Judge Upholds $5.9M Verdict."  The verdict was secured by Attorneys James Mundy and Bruce Zero of the Scranton, Lackawanna County, PA law firm of Powell Law. 

The article outlines Judge Gibbons' Opinion in the Cancelleri case, which appears to be one of the first, if not the first, trial court decision to tackle the new products liability analysis outlined by the Pennsylvania Supreme Court in the Tincher v. Omega Flex case.  A Tort Talk post on the Cancelleri decision can be viewed HERE [and there is a Link to Judge Gibbons' Opinion in that post.

If you are not able to view the above article at the Link provided, please email me at dancummins@comcast.net and I will send you a copy.

All Scorecards on Tort Talk Updated


 
TORT TALK SCORECARDS UPDATED
 
 


The Post-Koken Scorecard has been updated.  This Scorecard lists important cases uncovered on a variety of issues in the new form of UIM and third party lawsuits in auto accident cases.  It is periodically updated with new cases and always freely accessible.  Click this LINK to view the Post-Koken Scorecard.


The Facebook Scorecard has been updated (No new or recent cases to report).  This Scorecard lists important cases found on the issue of the discoverability of social media information on a party or a witness to a personal injury litigation.  This Scorecard is also periodically updated with new cases and is equally always freely accessible.  Click this LINK to view the Facebook Discovery Scorecard.


The Products Liability Restatement Scorecard has also been updated.  This Scorecard lists important cases on the debate of whether the Restatement (Second) of Torts or the Restatement (Third) should apply in Pennsylvania Products Liability cases.  That debate was recently settled (for the time being) by the Pennsylvania Supreme Court's decision in Tincher v. Omega Flex.  At least one Post-Tincher case has been uncovered to date.  This Scorecard will be periodically updated with new cases and is always freely accessible.  Click HERE to view the Products Liability Restatement Scorecard.


Please note that these Scorecards can also always be viewed by going to the Tort Talk blog at www.TortTalk.com and scrolling down the right hand column and clicking on the date noted under each Scorecard.


I welcome your sending copies of any Opinions or Orders that may fall under any of the topics noted above to be included in the Scorecard as a way to keep the bar apprised of the latest developments in these new areas of Pennsylvania Common Law.

As such, please do not hesitate to forward a copy of any new Post-Koken auto law decisions on any issue, any Facebook/social media discovery decisions, or any Post-Tincher products liability Opinions or Orders.  I can be reached at dancummins@comcast.net.

Thank you very much.




Wednesday, January 14, 2015

Judge Minora of Lackawanna County Addresses Statute of Limitations and Discovery Rule in Medical Malpractice Case

In his recent December 23, 2014 Opinion in the case of Peoples v. Philbin, No. 2010-CV-6623 (C.P. Lacka. Co. 2014 Minora, J.), Judge Carmen D. Minora granted certain Defendants a judgment on the pleadings based upon the expiration of the statute of limitations in a medical malpractice case.  

By way of background, this medical malpractice case alleges a failure to timely detect or diagnose the presence of Hodgkin’s Lymphoma.   The Plaintiff filed an original Writ of Summons naming two (2) Defendants and, later, filed Amended Complaints to join two (2) more Defendants after the statute of limitations expired.    

Judge Carmen D. Minora
Lackawanna County
The Defendants who were joined later in the action filed a Motion for Judgment on the Pleadings asserting that the Plaintiff did not file her claim against those particular Defendants within the two (2) year statute of limitations and further argued that, given that the Plaintiff had joined those Defendants more than four (4) years after her diagnosis, the discovery rule was inapplicable to toll the statute of limitations.  

In his Opinion, Judge Minora reviewed the relevant law.  Under Pennsylvania, a cause of action for negligence accrues when the Plaintiff could have first maintained the action to a successful conclusion.   Stated otherwise, in a suit to recover damages for personal injuries, the right to sue generally arises when the injury is inflicted.  

Once a cause of action has accrued and the statute of limitations period has run, an injured party is barred under Pennsylvania law from bringing his action.   Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005).  

As noted by Judge Minora, the Pennsylvania Supreme Court in Checcio emphasized that statute of limitations “are designed to effectuate three (3) purposes:  (1) preservation of evidence; (2) the right of potential defendants to repose; and (3) administrative efficiency and convenience.”   Baselice v. Franciscan Friars Assumption BVM Province, Inc., 379 A.2d 270, 275-276 (Pa. Super. 2005).  

Under the above law, the court found that the actions against the later joined Defendants were barred by the applicable two (2) year statute of limitations.  


With regard to the Plaintiff’s argument to extend the statute of limitations under the discovery rule, the court noted that the purpose of the discovery rule is to exclude from the running of the statute of limitations that period of time during which a party who has suffered an injury is reasonably unaware that he has been injured, in order that that party may essentially have the same rights as those who have suffered a known injury.  

When the discovery rule applies, the statute of limitations does not commence the run at the instant   Rather, the statute is tolled, and does not begin to run until the injured party discovers, or reasonably should have discovered, that he or she has been injured and that his injury has been caused by another party’s acts or omissions.  
the right to bring suit arises, i.e., when the injury occurs.

Judge Minora noted that, while the questions as to when a party’s injury and its cause were discovered or discoverable is typically for a jury, under the circumstances of this matter, where even the discovery period does not sufficiently toll the statute, the court is able to rule, as a matter of law whether the statute of limitations has run on a claim presented. 

More specifically, given that the later joined Defendants were not joined until four (4) years after the discovery of the Plaintiff’s actual condition, (i.e. not within two years of the discovery of the injury), the discovery rule was found not to require a different result.   As such, the court granted the later joined Defendants’ Motion for Judgment on the Pleadings.
 

Anyone desiring a copy of this decision, may contact me at dancummins@comcast.net.
 
Source of gavel/stopwatch imagewww.lexisnexis.com
 

 

Bad Faith Claim Allowed to Proceed Based in Part Upon Negligence Claims Asserted Against Carrier

In Selmek v. State Farm Fire &Cas. Co., No. 14-388, 2014 U.S. Dist. LEXIS 162294 (W.D. Pa. Nov. 20, 2014 Fischer, J.), the court allowed a bad faith claim to proceed beyond the pleadings stage in a case involving a homeowner's policy.

In Selmek, the adjuster requested the insured to assist in the inspection of a damage roof and with the protecting of the roof from further damage.  In the process, the insured fell through the roof and was injured.

The insured brought claims for negligence and bad faith. 

The Court found that the insurer had a contractual duty of good faith to inform the insured that, under the policy, the insurer had the right to pay for a third party contractor to take on these sorts of risks in securing the property.  The insured alleged that the carrier improperly had the insured take on these tasks so as to allegedly save money by not hiring a contractor, as required under the policy. 

The court found such allegations to sufficiently state a statutory bad faith claim.

If you wish to read this Opinion in Selmek, please click this LINK
I send thanks to the writers of the excellent PENNSYLVANIA AND NEW JERSEY INSURANCE BAD FAITH CASE LAW BLOG, which can be viewed HERE, for bringing this case to my attention.
 

 

Tuesday, January 13, 2015

Lackawanna County Judge James A. Gibbons' Post-Tincher Decision Highlighted on Westlaw Journal Blog

Here's a LINK to the Westlaw Journal Blog's highlighting of the recent decision by Lackawanna County Judge James A. Gibbons in the case of Cancelleri v. Ford Motor Co., representing one of the first Post-Tincher trial court decisions in Pennsylvania applying the new products liability analysis enunciated by the Pennsylvania Supreme Court.

The excellent Westlaw Journal Blog can always be accessed at:

 

 


Lackawanna County Post-Koken Decision Denying Severance and Stay of Bad Faith Claim





In a recent December 3, 2014 Order without opinion, Senior Judge John L. Braxton, sitting in Lackawanna County, denied a UIM carrier's motion to sever a bad faith claim and stay bad faith discovery in the Post-Koken matter of Golin v. Baggetta and The Travelers Home and Marine Ins. Co., 2014 CV 1839 (C.P. Lacka. Co. Dec. 3, 2014 Braxton, S.J.).

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

I send thanks to Attorney Shane McGrady of the West Pittston law firm of Cefalo & Associates for forwarding this matter to my attention.

 

Monday, January 12, 2015

Pennsylvania Supreme Court Splits on Authentication of Text Messages Ruling [In Criminal Court Context]

Tort Talkers may recall prior posts and articles here on the case of Commonwealth v. Koch, a criminal court decision on the issue of authentication of text messages in a criminal court case.  That case was noted to have possible implications on the authentication of electronic forms of evidence in the civil litigation context.  [For more, please go to www.TortTalk.com and type "Koch" into the Search Box near the upper right hand corner of the blog to bring up the prior posts on this case/issue].

A December 30, 2014 evenly split 3-3 decision by the Pennsylvania Supreme Court in the case of Commonwealth v. Koch, No. 45 MAP 2012 (Pa. 2014) means the Superior Court's decision applying the authentication law under Pa.R.E. 901 applies to electronic evidence and that circumstantial evidence can be utilized to meet the test.

While another split decision by the Commonwealth's highest court on an issue of importance is disappointing, that decision, along with the Superior Court's decision in the same case, suggests that the same old evidentiary Rules will be held to apply to this new form of evidence.  Such an analysis would likely be extended to Facebook profile evidence and other social media evidence.

To view the Per Curiam Affirmance by the Evenly Split Supreme Court, click HERE.

To view the Concurring Opinion by Chief Justice Castille, click HERE.

To view the Dissenting Opinion by Justice Saylor, click HERE.

To view the Dissenting Opinion by Justice Eakin, click HERE.



Source:  Article by Lizzy McLellan and Max Mitchell, "Supreme Court Splits on Privacy and Authentication Tech Issues."  The Legal Intelligencer (Jan. 13, 2015).

Sunday, January 11, 2015

Lackawanna County Judge James A. Gibbons May Be First Trial Court Judge to Apply Revised Pennsylvania Products Liability Law

In what may be one of the first trial court opinions to apply the new products liability analysis enunciated in the Pennsylvania Supreme Court recent decision in Tincher v. Omega Flex, Lackawanna County Court of Common Pleas Judge James A. Gibbons rejected a Defendant's Motion for a New Trial and/or a Judgment Notwithstanding the Verdict in the case of Cancelleri v. Ford Motor Co., No. 2011-CV-6060 (C.P. Lacka. Co. Jan. 9, 2015 Gibbons, J.).

The Cancelleri case involved claims that the airbag/restraint system in the Plaintiff's vehicle was defectively designed in that the driver's side airbag failed to deploy in the subject car accident. 

Ford primarily argued that it was entitled to a Judgment NOV because there was not enough evidence to sustain the Plaintiff's claims pertaining to crashworthiness and malfunction theories.  In addition to a myriad of other issues raised, the defense also asserted that the court failed to apply the Restatement (Third) of Torts analysis for products liability matters in Pennsylvania.

As Tort Talkers may recall, the Pennsylvania Supreme Court, in its recent November 19, 2014 Opinion in Tincher, rejected the Restatement (Third) analysis and advocated a continued use of the Restatement (Second) of Torts standard.  For the Tort Talk blog post on the Tincher decision, along with a link to the Supreme Court's 128 page Opinion, click HERE.

In his Opinion in Cancelleri, Judge Gibbons conducted a detailed analysis of the meandering Tincher decision and outlined a concise recitation of the new burden of proof required to be met by plaintiffs in products cases.  Applying this analysis to the trial record led Judge Gibbons to deny the post-trial motions filed by the defense.  The court also granted the Plaintiff's motion for delay damages, which brought the total award in favor of the Plaintiffs to an amount in excess of $6.2 million dollars.

An appeal is anticipated in the Cancelleri v. Ford Motor Co. case.  This raises the chance that the issue of the Restatement (Second) vs. (Third) analysis may be revisited by the Pennsylvania Supreme Court and perhaps not until after the time two new Justices would have been elected to the Commonwealth's highest Court.

Anyone wishing to read Judge Gibbons' 60 paged Opinion in Cancelleri v. Ford Motor Co. may click this LINK.

The prevailing plaintiff's attorneys were James F. Mundy and Bruce S. Zero of the Scranton, PA office of Powell Law.

Thursday, January 8, 2015

Pennsylvania Supreme Court Agrees to Address Important First Party Benefits/Attorney's Fees Issue




On December 31, 2014, the Pennsylvania Supreme Court granted Travelers' Insurance Company’s Petition for Allowance of Appeal in the first party benefits peer review case of Doctor’s Choice Physical Medicine & Rehabilitation Center, P.C. (LaSelva), v. Travelers Personal Ins. Co., No. 512 MAL 2014 (Pa. 2014).  The Court framed the issues to be reviewed as follows:  

"(1) Whether the Superior Court improperly interpreted § 1797 of the MVFRL,the Supreme Court case of Herd Chiropractic v. State Farm, and its own case of Levine v. Travelers, to allow attorneys’ fees even when an insurer has utilized the peer review process? 

(2) Whether the Superior Court improperly interpreted and misapplied §1797(b)(4) by holding that the insurer must oversee the statutory compliance of peer review organizations with 31 Pa.Code § 69.53(e)?"

As such, this eventual Pennsylvania Supreme Court decision will serve to clarify the issue of – whether a plaintiff can get attorney’s fees if a peer review process utilized by a carrier is found to be statutorily non-compliant.
 
For more background on this case, click this LINK to the Tort Talk post summarizing the trial court's opinion.
 
To view the Pennsylvania Supreme Court's Order granting this appeal, click HERE.
 

I send thanks to Attorney Brigid Q. Alford of the Camp Hill, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this news to my attention.

Family Doctor Barred From Offering Opinion Regarding Treatment Rendered by Spine Specialist

A plaintiff's attempt to have a family doctor testify as to the necessity of the plaintiff's laser spinal surgeries following a motor vehicle accident was rejected in a recent decision by Judge Karen Shreeves-Johns of the Philadelphia County Court of Common Pleas in the case of Lee v. Bernard, PICS Case No. 14-1985 (C.P. Phila. Co. Nov. 19, 2014 Shreeves-John).

In so ruling the court rejected the plaintiff's argument that "all medical doctors are qualified to testify concerning medical subjects and it is for the jury to determine the weight to be given to the expert testimony."

Judge Shreeves-Johns wrote in her Opinion that. "Simply put, an expert must demonstrate some knowledge of the specific subject matter upon which he promises to express an opinion."

The Court went on with the following statement:  "The reasonableness and necessity of a patient receiving highly complex spinal surgery is a matter of specialized knowledge which is not typically embodied within the knowledge or education of a general family practitioner and therefore was not within the ken of plaintiffs' expert...."

The judge also noted that the doctor who performed the surgeries was certainly a specialist in the field and the plaintiffs could have called him to testify about the need for the surgeries.

Copies of Lee v. Bernard, PICS No. 14-1985, are available by calling the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly at 800-276-PICS to order at a small fee. Source:  Article by

Gina Passarella entitled "Family Doc Can't Testify to Need for Specialized Surgery," from The Legal Intelligencer (Dec. 15, 2014).



Monday, January 5, 2015

New Year's Resolution: Always Request that the Court Reporter Take Everything Down At Trial

In its recent "Non-precedential" Memorandum decision in the case of Cornelius v. Menio, No. 1382 EDA 2013 (Pa. Super. Nov. 10, 2014 Bowes, J., Ott, J. and Jenkins, J.) (Mem. by Ott, J.), the Pennsylvania Superior Court upheld a defense verdict in favor a doctor in a medical malpractice case over objections and arguments from the Plaintiff’s counsel that several of the jurors were allegedly close to the Defendant doctor.  

This Opinion is also notable for the fact that the Superior Court ruled that the trial court did not err in failing to record sidebars or motions to strike jurors for cause during voir dire where neither Plaintiff’s counsel nor defense counsel requested that a court reporter record the proceedings and where both counsel failed to object to any alleged failure by the court to record the same. 

Accordingly, the Plaintiff’s complaint with regards to the failure of the court to have the court reporter take down certain portions of the voir dire was considered to be waived.  

The Superior Court further rejected the Plaintiff’s argument that the trial court had the ultimate responsibility for ensuring that an adequate record for appellate review was created.  The Superior Court noted that the rules of court contain no requirements for the recording of sidebar conferences.

The Superior Court's non-precedential decision in the case of Cornelius v. Menio can be viewed HERE.  


Commentary:  So the next time a trial court judge hesitates at your desire to have a court reporter take down something to record it for possible appellate purposes, this is a ["Non-precedential"] case to politely note to the court as supporting your efforts to protect your client's appellate rights (not to mention your right to engage in some CYA).


New Version of Lackawanna County Local Rules Effective January 5, 2015



A new version of the Lackawanna County Local Rules of Civil Procedure was adopted on November 18, 2014.  All previous versions of the rules were repealed.  

These changes will be effective on January 5, 2015, i.e., TODAY..

A copy of the Rules can be viewed online HERE.

This document has not adopted any new rules. 
 
Rather, it is a compilation of all the individual rules that have been adopted and/or amended since the last compilation was adopted back in 2004.

NOTE:  It should be recognized that Lackawanna County Attorney Dana Zlotucha, law clerk to the Hon. Robert A. Mazzoni, took on the laboring oar (working with Deputy Court Administrator Jeff McLane) on this project to locate, gather, confirm, and edit all of the variations of the Local Rules, along with the recent amendments to the Rules, to come up with the finished product. 

The draft was also reviewed and approved by both the Civil Rules Committee of the Lackawanna County Bar Association before being reviewed and approved again by the Judges of the Lackawanna County Court of Common Pleas.
 
 
The Lackawanna County Courthouse