Monday, February 29, 2016

Federal Middle District Judge Brann Reviews Peculiar Risk Exception in Landowner Slip and Fall Liability Case

Judge Matthew W. Brann of the Pennsylvania Middle District Court recently granted a Defendant's Motion to Dismiss in the slip and fall negligence case of Holt v. Lowe’s Home Centers, LLC, No. 4:15-CV-01728 (M.D. Pa. Feb. 10, 2016).  

In this case, Judge Brann ruled that a Defendant landowner could not be held liable for injuries sustained by an independent contractor’s employee when that employee slipped and fell through a snow covered greenhouse roof that the contractor was hired to clear.  

At the outset of his Opinion, Judge Brann outlined the stricter "plausibility" standard of review for federal court motions to dismiss enunciated by decisions in recent years by the Chief Justice Roberts-led U.S. Supreme Court. 

The court noted that the records confirmed that the contractors retained by Lowe's, one of which designed, manufactured and manufactured greenhouses of the type at issue, obviously knew of the existence of the snow, and also know of the possible structural damage to the area where the Plaintiff fell through the greenhouse roof.  

Judge Matthew W. Brann
M.D. Pa.

Judge Brann reaffirmed that a landowner will not be held vicariously liable for the negligent acts of an independent contractor hired to perform work on the land.  The court rejected the Plaintiff's request for the application of the Peculiar Risk Exception to this general rule of non-liability

The court found that there was no peculiar risk or special danger presented by the facts of this matter.   Judge Brann stated that a snowy roof in winter in Pennsylvania did not amount to a peculiar risk as that term is identified under the law.

Judge Brann also held that it could not be a peculiar risk in that the premises owner did not have any duty to inspect as that duty had been contractually assumed by the contractor.

Judge Brann also supported his decision to dismiss the matter by asserting that the record did not prove causation attributable to Lowe's as the possessor of land.   In this regard, the court noted that the Plaintiff’s injury was caused, in part, by the failure to use safety equipment and that that failure was under the contractor’s responsibility and not the landowners.  

Anyone wishing to review Judge Brann's notable decision in the Holt case may click HERE

I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith Law Firm.   Please be sure to check out Attorney Beck’s excellent blog, the Drug and Device Law Blog.    

Thursday, February 25, 2016

Judge Nealon Addresses Vicarious Liability Based Upon Ostensible Agency Claim In Med Mal Case

In his recent decision in the case of Oscarson v. Moses Taylor Hospital, No. 2013-CV-1523 (C.P. Lacka. Co. Feb. 3, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a Defendant hospital’s Motion for Summary Judgment on the Plaintiff’s ostensible agency theory of liability for an independent contractor physician.  

In this medical malpractice action, the Plaintiff alleged a negligent performance and interpretation of a needle biopsy at the Defendant-hospital by the Defendant-pathologist.   The Plaintiff asserted a claim of a vicarious liability on the hospital.  This claim was based upon the assertion that the independent contractor pathologist was an ostensible agent of the hospital at the time of the biopsy.

The matter came before the court on the hospital Defendants Motion for Summary Judgment.  

Judge Nealon noted that, under 40 P.S. §1303.516, a hospital may be vicariously liable for the negligence of an independent contractor physician based upon ostensible agency if the evidence shows that either (1) a reasonably prudent person in the patient’s position would be justified in believing that the care in question was being rendered by the hospital or its agent, or (2) the care at issue was advertised or otherwise represented to the patient as being rendered by the hospital or its agent. 

Reviewing the records before him, Judge Nealon noted that there was evidence that the Plaintiff was advised by his treating surgeon that he was being referred to the hospital, not any particular pathologist, for the needle biopsy.  Moreover, the Plaintiff was contacted by the hospital’s outpatient department, as opposed to the pathologist’s office, for the scheduling of the biopsy procedure at the hospital.  

The record also established that, prior to the date of the biopsy, the Plaintiff had never met or been treated by the pathologist.  The only care that the Plaintiff received from the pathologist took place at the Defendant-hospital.   Judge Nealon also noted that the pathologist never informed the Plaintiff of his independent contractor status.   The Plaintiff additionally testified during his deposition that he thought that the pathologist was indeed a hospital employee.

As such, viewing the records in a light most favorable to the Plaintiff as the non-moving party as required by the standard of review for motions for summary judgment, Judge Nealon ruled that it could not be declared, as a matter of law, that a reasonably prudent person in the position of the Plaintiff would not have been justified in believing that the needle biopsy was being performed by the hospital’s agent.  As such, the hospital’s Motion for Summary Judgment was denied.  

Anyone wishing to review this case may click this LINK.

Nice Overview of the Law of Tincher Provided in Dauphin County Products Case

In a recent decision in the case of High v. Pennsy Supply, Inc., No. 2013-CV-06181 C.V. (C.P. Dauph. Co. Feb. 18, 2016 Dowling, J.), the court granted summary judgment in favor of the Defendant in a products liability case.  

In this Opinion, Judge Andrew H. Dowling of the Dauphin County Court of Common Pleas provides an excellent synopsis and overview of the Pennsylvania Supreme Court's products liability decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014).  

The Plaintiff’s products liability case alleged that the concrete at issue in the matter was defective because it had a pH in excess of 11.5, and was allegedly capable of causing burns to the skin upon prolonged exposure.

The Defendant moved for summary judgment asserting that Plaintiffs failed to prove a case that wet concrete, which normally has a pH range of 12-13, is an unreasonably dangerous and defective product.  

According to the Opinion, two (2) homeowners ordered concrete from the Defendant for use in a basement crawlspace.   After using the product, the homeowner sustained burn injuries to his hands that allegedly later required skin grafting and resulted in a permanent injury.  

The Court noted that there was no showing by the Plaintiff that the concrete delivery was somehow defective, that it contained a pH outside of the normal range, or that it contained anything unusual.  Rather, it was the Plaintiff’s claim that the concrete itself as a product was in a “defective condition” and created a danger that was unreasonable and unacceptable to the average or ordinary customer.”

In granting summary judgment in favor of the defense, the court in High applied the new standard of review for 402(A) strict liability cases announced in the Pennsylvania Supreme Court decision of Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014).  

According to the court in High, the Supreme Court in Tincher held that the non-delegable duty in a strict liability case is that the “a person or entity engaging in the business of selling a product has a duty to make and/or market the product-which ‘is expected to and does reach its user or consumer without substantial change in the condition in which it is sold’- free from ‘a defective condition unreasonably dangerous to the consumer or [the consumer’s] property.’”  See High at p. 3 quoting Tincher, 104 A.3d at 383.  

The High court also noted that, under Tincher, “[t]o demonstrate a breach of duty in a strict liability matter, a Plaintiff must prove that a seller (manufacturer or distributor) placed on the market a product in a ‘defective condition.’”  High at p. 3-4 quoting Tincher, 104 A.3d at 384.  

The High court also noted that, under Tincher, “the cause of action in strict products liability requires proof, in the alternative, either of the ordinary consumer’s expectations or of the risk-utility of a product.”   High, at p. 4 quoting Tincher, 104 A.3d at 401.   The alternative test, or standard of proof, is a “composite,” i.e., a standard of proof which states the consumer expectations test and the risk-utility test in the alternative.  High at p. 4 citing Tincher, 104 A.3d at 402.  

The High court also noted that, under Tincher, the overall standard of review mandates that “the strict liability cause of action theoretically permits compensation where harm results from risk that are known or foreseeable… and also where harm results from risks annullable at the time of manufacture or sale…...” High at p. 4 quoting Tincher, 104 A.3d at 404-05.

The High court stated that, under Tincher the consumer expectations test defines a “defective condition” as a condition, upon normal use, dangerous beyond the reasonable consumer’s contemplations.  High at p. 4 citing Tincher, 104 A.3d at 387.  

In contrast, the risk-utility test “offers a standard which, in typical common law terms, states that:  a product is in a defective condition if a ‘reasonable person’ would conclude that the probability and seriousness of harm caused by the product outweigh the burden of costs of taking precautions.”  High at p. 4 citing Tincher, 104 A.3d at 389.   The court went on to review the at least seven (7) factors to be considered under the risk-utility test as enunciated in Tincher.   High at p. 4-5 citing Tincher, 104 A.3d at 389-390.  

Turning back to the facts before it, the court in High stated that the Plaintiffs were required to prove a defective condition by showing that a danger was unreasonable and unacceptable to the average or ordinary consumer, or that a reasonable person would conclude that the probability and seriousness of the harm caused by the product outweighed the burden or costs of taking precautions.  High at p. 5.  

After noting that no Pennsylvania court decision was found considering whether concrete is unreasonably dangerous by virtue of its capacity for causing burns while in a liquid state, and after reviewing the law and cases of other jurisdictions, the High court granted summary judgment in favor of the Defendants finding that the Plaintiffs had failed to produce evidence that wet concrete is in a defective condition. 

The court also ruled  that the Plaintiffs failed to show that the danger with wet concrete is unreasonable and unacceptable to the average or ordinary consumer.   To the contrary, the High court found that the dangers associated with wet concrete are well known and are acceptable.  

The court additionally found that the Plaintiffs failed to produce evidence that the seriousness of harm caused by concrete outweighed the burden or costs of taking precautions.  The court stated that concrete obviously is useful and provides utility to the public as whole and, when used with the proper precautions and equipment, it would seem that there would be a very low probability of serious injury.   The court also noted that no evidence was presented by the Plaintiff of the availability of a substitute product that would meet the same needs and would not be as allegedly unsafe.  

The court also noted that there did not appear to be a way to eliminate any unsafe character of the wet cement product without impairing its usefulness or making it too expensive to maintain its utility.   Moreover, the court stated that proper attire and basic safety precautions could have prevented the Plaintiffs’ injury.  

Consequently, the court found that the Plaintiffs had failed to prove that the seriousness of the harm caused by wet concrete outweighs the burden of costs of taking precautions.  As such, the court entered summary judgment in favor of the Defendant.  

A copy of this decision can be viewed by clicking this LINK

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

Monday, February 22, 2016

Judge Nealon Explains Difference Between Preliminary Objections for Improper Venue and Petition for Transfer Under Doctrine of Forum Non Conveniens Where Venue is Proper

In the case of Baltzley v. Bronson, No. 14-CV-5500 (C.P. Lacka. Co. Feb. 4, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Defendant's Preliminary Objections to a Complaint pursuant to Pa. R.C.P. 1028(a)(1) and 1006(e) asserting improper venue in Lackawanna County in a motor vehicle accident case.   Judge Nealon’s Opinion emphasizes the difference between asserting improper venue, which can be raised only by Preliminary Objections, and inconvenient forum challenges, which acknowledged proper venue and can only be raised by petition.   

According to the Opinion, the subject motor vehicle accident occurred in Montrose, Susquehanna County, Pennsylvania.  

The Plaintiff commenced the action by filing a Writ of Summons and serving that initial process upon the Defendant through the Sheriff’s Department of Susquehanna County at the Defendant’s Susquehanna County residence.  

Thereafter, the Plaintiff filed a Complaint in which he identified the Defendant’s residence being in Susquehanna County.  

The Defendant filed timely Preliminary Objections to the Complaint pursuant to 1028(a)(1), asserting that venue was proper only in Susquehanna County since the Defendant resided in Susquehanna County and was served with original process in that county and given that the accident occurred in that county.   In his supporting Brief, the Defendant noted that Rule 1006 states that venue was proper either in the county where a Defendant may be served or in the county where the cause of action arose.  The Defendant also asserted that because no Defendant resided in Lackawanna County and given that the accident did not take place in Lackawanna County, “this action must be transferred to Susquehanna County.”  

The Plaintiff responded to the Preliminary Objections by admitting that the subject accident occurred in Susquehanna County and that the Defendant was served with original process in that county.  However, the Plaintiff contended that the Defendant’s Preliminary Objections should be denied since the Defendant “has failed to show that venue in Lackawanna County would be inconvenient” under Pa. R.C.P. 1006(d)(1).   The Plaintiff further argued that the Defendant has not provided any evidence to the court that Lackawanna County was an inconvenient forum for the parties or witnesses or that the travel to and expenses of litigating in Lackawanna County would be overly burdensome for any party.   For these reasons, the Plaintiff requested that Defendant’s Preliminary Objections be overruled.  

Judge Terrence R. Nealon
Lackawanna County
In his Opinion, Judge Nealon noted that venue for civil actions brought against individuals is controlled by Pa. R.C.P. 1006.   Judge Nealon also explained that, based upon Pennsylvania Supreme Court precedent, “Rule 1006 not only articulates where the plaintiff may bring the action, but also provides three (3) distinct bases upon which a defendant may challenge the plaintiff’s chosen forum:  improper venue by Preliminary Objections, forum non conveniens, and inability to hold a fair and impartial trial.”   See Baltzley at p. 3 [citation omitted].  

Judge Nealon also stated that, pursuant to Pa. R.C.P. 1006(e), improper venue must be raised by Preliminary Objection and, if not so raised, shall be considered to be waived.  

Judge Nealon went on to note that, where venue is proper in a given county, a defendant may, in the alternative, seek a change of venue either on a forum non conveniens grounds or due to the inability to obtain a fair and impartial trial in that particular county.   In such case, under Rule 1006(d)(1), a party may file a petition with the court to transfer the action to another county for the convenience of parties and witnesses.  

The court also explained that a defendant may otherwise request a transfer of venue from a county where the venue is properly laid by establishing to the court that the defendant is unable to receive a fair and impartial jury trial in that forum.   Such a petition can be filed under Rule 1006(d)(2).  

The court emphasized that, in this matter, the Defendant filed Preliminary Objections challenging improper venue, and not a petition asserting forum non conveniens or an inability obtain a fair and impartial trial in Lackawanna County.   As such, the judge noted that issues pertaining to the convenience or expenses to the parties of litigating in Lackawanna County were not relevant.  

The court ruled that the Plaintiff’s admissions in the pleadings confirmed that the Defendant was served in Susquehanna County and that the accident occurred in Susquehanna County.   There was no contention by the Plaintiff that the Defendant could have been served in Lackawanna County or that the accident occurred in Lackawanna County.   Since there is no basis in fact or law for proper venue in Lackawanna County under Rule 1006(a)(1), the court sustained the Defendant’s Preliminary Objection asserting improper venue in Lackawanna County.

Judge Nealon went on to note that under Pa. R.C.P. 1006(e) if a Preliminary Objections to venue is sustained and there is another county of proper venue within Pennsylvania, the action should be transferred to that other county.   Accordingly, Judge Nealon transferred the case to the Court of Common Pleas of Susquehanna County and required, as mandated by Rule 1006(e) that “[t]he costs and fees for transfer and removal of the record shall be paid by the plaintiff.”  

Anyone wishing to review this decision by Judge Nealon in the Baltzley case may click this LINK.

Judge Gray of Lycoming County Addresses Proper Allegations for Dog Bite Complaint

In his recent decision in the dog bite case of Wagner v. Teneyck, No. 15-01783 (C.P. Lycoming Co. Jan. 5, 2016 Gray, J.), Judge Richard A. Gray of the Lycoming County Court of Common Pleas denied in part and sustained in part a Defendant’s various demurrers to a Plaintiff’s Complaint in a dog bite personal injury matter.  

The court found that Complaint contained sufficient allegations for a cause of action for negligence per se for harboring a dangerous dog and failing to keep a dangerous dog under control in violation of Pennsylvania’s Dangerous Dog Law as well as the Borough of Jersey Shore Codes pertaining to dog leash laws.  

The court rejected the Defendant’s objections to the Complaint for failing to specify the provisions of the Pennsylvania Dog Law and/or the Borough of Jersey Shore Codes pertaining to dog leash laws in the content of the Complaint.  

Judge Richard A. Gray
Lycoming Co.
In this regard, Judge Gray noted that Pennsylvania is a fact-pleading jurisdiction  under which the courts are presumed to know the law such that Plaintiffs need only plead facts supporting a cause of action and that the courts will take judicial notice of any statutes involved or implicated by such allegations.   Here, the court found that the Complaint sufficiently pled that the Defendants’ harbored a dangerous dog and failed to either keep the dog within a dwelling or an enclosure or to keep the dog muzzled.  As such, the Defendants’ objections based upon a lack of form or improper form in the Complaint was overruled.  

Judge Gray did sustain the Defendants’ objection asserting that the Complaint failed to specify the alleged special damages at issue.   Judge Gray noted that Pa. R.C.P. 1019(f) required that items of special damages be specifically stated in a Complaint.  

Here, the court noted that the Complaint failed to specify the amount of past medical bills to the extent known as well as the future medical bills anticipated.  Accordingly, the Complaint was found to lack sufficient specificity under Rule 1019(f).   The Defendants’ Preliminary Objection based upon lack of specificity was therefore sustained.  

Judge Gray's Opinion in Wagner can be viewed  HERE.

Thursday, February 18, 2016

Another Luzerne County Post-Koken Decision in Favor of Consolidation During Discovery (But Leaving the Door Ajar for Bifurcation Later at Trial)

In a recent February 11, 2016 Order without Opinion in the case of Rhoades v. Johnson and Erie Insurance Company, No. 9659 - CV - 2015 (C.P. Luz. Co. Feb. 11, 2016 Amesbury, J.), Judge William H. Amesbury of the Luzerne County Court of Common Pleas denied the Defendant UIM carrier's Preliminary Objections/Motion to Sever filed in response to a Post-Koken Complaint.

This matter arose out of a motor vehicle accident during which the Defendant tortfeasor driver was allegedly driving under the influence.

The Defendant UIM carrier filed Preliminary Objections asserting a misjoinder of negligence claims against the alleged tortfeasor and UIM breach of contract claims under a single Complaint.  The carrier combined the Preliminary Objections with a Motion to Sever pursuant to Pa.R.C.P. 213 asserting, in part, that it would be prejudicial for the UIM carrier to have to proceed through the same jury trial with the inflammatory facts associated with a Co-Defendant accused of a DUI and facing punitive damages.

Judge William H. Amesbury
Luzerne County
Following the trend in Luzerne County, Judge Amesbury denied the Preliminary Objections of the UIM carrier Defendant but noted in his Order that "Defendant Erie Insurance Company retains the right to file a Motion to Sever with the Trial Judge."

Anyone desiring a copy of this Order only may contact me at

Commonwealth Court Revisits Duties of a Pedestrian Crossing a Street

In its recent decision in the case of Chaudhuri v. Capital Area Transit, No. 1467 C.D. 2015 (Pa. Cmwlth. Jan. 7, 2016 McCullough, J.), the Pennsylvania Commonwealth Court affirmed the entry of a defense verdict in a motor vehicle versus pedestrian accident and, in doing so, found that the trial court did not err in its jury instructions, particularly with respect to the requirement of law that a pedestrian cross streets at crosswalks. 

This matter arose out of an accident during which the Plaintiff, who was crossing the street as a pedestrian outside of a designated crosswalk, waled behind a public bus and was struck by a second bus.  At trial, the jury returned a verdict finding the Plaintiff to be 75% negligent and the Defendant bus driver 25% negligent.

In post-trial motions and on appeal, the Plaintiff argued that the trial court erred on its instructions to the jury on the legal duty of pedestrians crossing outside of a crosswalk.   The Plaintiff alleged that the trial court’s instruction effectively directed to the jury to find the Plaintiff negligent and that the Plaintiff failed to exercise due care simply because he crossed the street outside of the crosswalk.  The Plaintiff made this argument based upon the trial court’s instruction noting that there was a preference under the law for pedestrians to cross streets at crosswalks.  

The appellate court rejected this argument and found that, viewing the trial court’s instructions to the jury as a whole, the Plaintiff was not prejudiced because the trial court was found to have accurately instructed the jury.  The Commonwealth Court reaffirmed the legal duty of pedestrians crossing outside of a crosswalk to yield to oncoming traffic.  The appellate court noted that the trial court properly read from the applicable statutes,and additionally reminded the jury that they were solely responsible for determining whether or not the Plaintiff was negligent based upon the applicable standard of care.  

The appellate court also specifically found that the trial court’s instructions never informed or instructed the jury that the Plaintiff had violated any statute or that the Plaintiff was contributorily negligent simply because the Plaintiff had decided to cross the street outside of a crosswalk.  

Accordingly, the Commonwealth Court found no error in the trial court’s jury instruction in this regard and chose not to disturb the jury’s verdict on appeal.  

Anyone wishing to read this Opinion, may click HERE.

Tuesday, February 16, 2016

Pennsylvania Defendant's Signing of Green Card Receipt of Complaint By Mail Does Not Negate Improper Service of Original Process

Lackawanna County Court of Common Pleas

In his recent decision in the case of Brown v. Vito, No. 2014-CV-5768 (C.P. Lacka. Co. Jan. 26, 2016 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas granted a Petition to Strike a Default Judgment in a civil litigation matter.  
According to the Opinion, the Plaintiff secured a default judgment against the Defendant in a partnership dispute case where the Plaintiff had alleged a breach of fiduciary duty, fraud, partnership oppression, and a request for account in escrow.   The Plaintiff asserted that the Defendant failed to file a timely answer to the Complaint.   The judgement was entered by the Plaintiff in the amount of $200,000.00.  
The Defendant filed a Petition to Strike the default judgment along with a request for an emergency temporary stay of the Plaintiff’s attorney's plan to execute on the judgment. 
In his decision, the court reviewed the well-settled standard of review for a Petition to Strike a Default Judgment.   Concisely, under that standard of review, a Petition to Strike a Default Judgment may be granted only where a fatal defect or irregularity is apparent on the face of the record.  
After reviewing the record before the court in this matter, Judge Minora found that the Plaintiff failed to follow the Pennsylvania Rules of Civil Procedure pertaining to service of original process which, in this matter, was the Complaint.  
Here, the Plaintiff produced a certified mail receipt with the Defendant’s signature in an effort to show that service was properly made under the Rules.   However, Judge Minora noted that, “[e]ven if  Defendant signed for and received Plaintiff’s Complaint, that does not necessarily make service proper under the Rules.”  
Judge Minora noted that Pa. R.C.P. 403 permits original process to be served by mail if a Rule of Civil Procedure authorizes so under certain limited exceptions.   Otherwise, the general rule, under Pa.R.C.P. 400, is that original service has to be served by a Sheriff.  
Since the court found that it did not appear that any Rule of Civil Procedure permitted original service to be served by mail in this matter, the court found that the Plaintiff failed to comply with the applicable Rules of Civil Procedure.  Accordingly, the court found a fatal defect in the record that supported a striking of the default judgment.  
The court also went on to note additional defects with respect to the Plaintiff’s non-compliance with Pa. R.C.P. 237.1 pertaining to the mandated steps to properly request the entry of a default judgment.   The court found that these defects were fatal defects that likewise supported striking the entry of the default judgment.  


Anyone desiring a copy of this decision may contact me at

Friday, February 12, 2016

In Honor of Lincoln's Birthday

In honor of President Abraham Lincoln's Birthday, I provide this reprint of an article of mine that appeared in the Pennsylvania Law Weekly a few years back:


A Presidents' Day review of practical advice from one of our greatest lawyer-presidents

By Daniel E. Cummins
Special to the Law Weekly

On President's Day – Feb. [15th] this year – we will honor the memory and accomplishments of one of our greatest presidents, Abraham Lincoln. While the myth and legend of this great president has expanded through history, it cannot be forgotten that he began his career as a country lawyer in Illinois.

Over the course of his career as an attorney and during his rise as a politician, Lincoln was famous for his wit and simple, yet compelling, way with words. He uttered many famous quotes, some of which are noted below, that can serve as excellent advice even for today's lawyers practicing nearly 150 years after his untimely death.

Whatever you are, be a good one.

Despite the current negative public perception of lawyers, the practice of law remains one of the noblest of professions. Continuing efforts of all attorneys to do the best they can for their clients and their community not only results in personal fulfillment but also advances the profession as a whole.

Good lawyers are not only strong advocates on behalf of their individual clients but may also serve as pillars of the community through volunteer work and pro bono work. Striving to volunteer one's time in this respect to the community is not only a part of being a good lawyer but also serves to foster a positive view of the profession as a whole.

It should also be kept in mind that we are not just lawyers. We may also be identified as mothers, fathers, friends, musicians, artists, or sports enthusiasts. An effort to be good in all aspects of life results not only in a sense of accomplishment but also makes for a more fulfilling existence. So the next time you find a heads up penny, in addition to the prospect of good luck, think, "Whatever you are, be a good one."

Character is like a tree and reputation like a shadow. The shadow is what we think of it; the tree is the real thing.

As lawyers, our reputations precede us. Having a character made up of integrity, honesty, or punctuality may cast a shadow just as long and deep as the negative shadow cast by one having an opposite character that is exhibited through a lack of integrity or through dilatory and vexatious conduct. There can be no question that one's reputation will set the stage as to how they are dealt with and viewed by others.

In picking up new files and before dealing with an opponent, one's first thought usually turns to the reputation of that other attorney. Many times, if the reputation is not known, it will be sought out by inquiring of others or doing other research in an effort to prepare for handling a file with that opposing counsel. Similarly, in dealings with judges, the "shadow" created by an attorney's reputation will reach the courtroom long before the attorney even stands before the bench on the issue presented.

It is often said that a lawyer's word is his bond. This is more than a cliché, it is a principle, a truth, and should be honored as such. Thoroughness in preparation and presentation along with punctuality and courteousness are also important aspects of creating a positive reputation. Adherence to these qualities will only enhance one's reputation within the bar and allow for better representation of the client.

Accordingly, it is important to constantly remember that every action may help to expand, or alter, our reputations. Consistent with Lincoln's analogy, when a tree is chopped down, it leaves little or no shadow. As hard as it is to develop a strong, favorable reputation, all it takes is one misstep to diminish, or even totally destroy, that reputation.

Give me six hours to chop down a tree and I will spend the first four sharpening the axe.

There is no better lawyer than a fully prepared lawyer. Judges and fellow counsel appreciate nothing more than the prepared lawyer who can streamline and thoroughly, yet concisely, present the client's position. Clients are better served by lawyers who take the time to become fully acquainted with the facts, the law, and the rules of civil procedure before completing whatever legal task lies ahead.

Whether it be the simple presentation of a discovery motion or the participation in a lengthy trial, the more time spent in preparation, the better the finished product will be. Additionally, developing a reputation as a well-prepared attorney will earn you the respect of your colleagues, may add to your credibility and will consequently strengthen whatever position you are advocating on behalf of your client.

Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.

Being in a profession that is adversarial by nature, we often approach issues with a fight in mind as opposed to efforts to reach an amicable resolution. With these words, Lincoln stressed that the role of a lawyer as a counselor is just as important, if not more important, than his or her role as a litigator.

Part of being a good lawyer is persuading clients to put emotions aside. Compromise is much more difficult when egos are involved and when attorneys take on emotional trappings of the client. Efforts at an objective evaluation of the pros and cons of any position will always serve the goal of reaching an amicable resolution of any dispute.

It is also often said that the sign of a good settlement or resolution is that both parties are not entirely happy with the result but the case is still nevertheless finally resolved. As Lincoln stressed, there is plenty of business to go around as we move from one file to the next and so litigation should not be sought out simply for the sake of litigation.

Am I not destroying my enemies when I make friends of them?

Similar to Michael Corleone's later advice in The Godfather, Part II, "Keep your friends close, but your enemies closer," Lincoln long ago recommended similar action to defuse one's opponents. Lincoln's advice goes a step further and advocates reaching out to one's enemies in an effort to appease them. Lincoln followed this advice when he famously filled his Cabinet seats with his political enemies. By doing so, he kept such enemies close and neutralized them by honoring them with prestigious positions of importance within the control of his administration.

In today's practice of law, we are routinely faced with adversarial attorneys we much rather not have to deal with. As difficult as it may be, perhaps it is better method of handling all adversaries by not retaliating in frustration but, wherever possible, greeting such opponents with appeasement or consideration.

Regardless of the shoddy treatment you may be receiving from an adversary, respond as you would wish to be treated. Routinely grant extensions or continuances when requested so long as it is not to the detriment of your client. Voluntarily disclose discovery that such opponents may be entitled to without the necessity of formal discovery requests or motions practice. Promptly return phone calls.

By acting in a non-confrontational manner towards vexatious opponents, it becomes more and more difficult for such adversaries to continue to respond or litigate in a negative fashion. Additionally, if certain issues eventually come to a head and require court intervention, the court would look more favorably upon your efforts towards an amicable resolution of the issue when compared to the petty and negative conduct of your opponent.

Better to remain silent and be thought a fool than to speak out and remove all doubt.

At CLE seminars, we often hear judges on the panel spend their presentations expressing the virtues of brevity and giving examples of less than exemplary arguments or presentations presented by attorneys in court.

Overburdened judges and bored jurors appreciate concise arguments grounded in common sense and ideals of fairness. The old school of thought of reiterating your argument three times in an effort to engrain your position upon the minds of the jurors no longer seems valid in this day and age of the rapid fire receipt and retention of information. Jurors, who are much more intelligent than they are usually given credit for, may become frustrated and develop a negative view towards you and, consequently, your client if you bore them with an unnecessarily repetitive presentation.

Being brief and concise can go a long way in having an impact and leaving a lasting impression upon others. No better example of this can be cited than Lincoln's own brief, concise, yet powerful, Gettysburg Address. Lincoln used less than 300 words delivered in just over two minutes in what has become known as one of the most compelling speeches in American history.

And in the end it's not the years in your life that count. It's the life in your years.

Despite being overburdened with attempting to reunite a country divided by civil war and bloodshed, Lincoln remained close to his wife, doted on his children, and otherwise attempted to live his life to the fullest.

As difficult as it may sometimes be, it should be kept in mind that the practice of law is but one dimension of our short lives. A balance between work and life outside of work should be sought and encouraged. Focusing one's energy entirely on work may cause one to burn out or become disillusioned with the practice. It will also likely result in significant regret at the end of one's life when looking back at all the missed opportunities to enjoy life outside of work with our family and our friends.

Efforts to realize a more healthy and balanced life by spending more quality time with your family and friends, enjoying recreational activities or hobbies, or by developing whatever your potential may be will only serve to add life to your years. Such a well-rounded lifestyle may also result in one becoming a more productive and effective attorney.

President Abraham Lincoln has been rightfully revered as a great orator and a figure who personifies honesty, integrity, and freedom. What better way is there to honor his memory than by recalling the above-noted ideals he pursued and attempting to incorporate them into our everyday lives in a continuing effort to improve the world around us. In this regard, as stressed by Lincoln himself, "Leave nothing for tomorrow which can be done today." •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley, Cognetti, Comerford, Cimini & Cummins ( For more background information on Attorney Cummins, see his online profile at

This article is reprinted here, with permission, from the January 29, 2007 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

Monday, February 8, 2016

Federal Middle District Magistrate Mehalchick Addresses Spoliation of Evidence Issues in Slip and Fall Case

In her recent decision in the case of Mack v. Pilot Travel Centers, LLC, 1:14-CV-00090 (MD Pa. Dec. 22, 2015 Mehalchick, M.J.), Magistrate Judge Karoline Mehalchick denied a Plaintiff’s Motion for Summary Judgment under a rationale, in part, that the Plaintiff was not entitled to a spoliation inference from a Defendant’s failure to preserve store surveillance video tapes.  

The Plaintiff in this matter initially attempted to overcome the Defendant's motion for summary judgment by arguing that the Plaintiff was entitled to the assessment of a spoliation sanction against the defense relative to the surveillance video of the subject incident.

The Plaintiff asserted that, despite an informal policy of the defendant to save twenty minutes of footage when an incident occurred, in this matter, the Defendant only saved a fragmented, less than twenty minute portion of footage.

The court noted that the record before the court confirmed that the video of the incident itself was preserved and saved.   There was no evidence of any actual withholding of suppression of any other evidence.   Judge Mehalchick stated that a spoliation inference requires that there have been an intentional destruction of evidence, which was not found to be present in this matter.  

Nevertheless, the court went on to deny the motion for summary judgment after finding that, even in the absence of a spoliation inference, the Plaintiff had adduced sufficient evidence on the causation issue to allow the Plaintiff's case to proceed to a jury.

Summary judgment on the liability issues was denied where, under the record before the court, the Plaintiff offered evidence that the Plaintiff testified that he saw the water upon which he fell and given that one interpretation of the surveillance video supported the Plaintiff’s version of the incident.   The Plaintiff also presented a liability expert in support of his claims of negligence.  As such, the court found that a jury question was presented.  

Judge Karoline Mehalchick
Judge Mehalchick otherwise indicated that an alleged "pervasive or obvious" recurrent problems on the premises can suffice as evidence of notice on the part of a defendant of an allegedly dangerous condition, particularly where the recurrent conditions allege were present at the time of the incident.  Here, there was evidence that the area of the Plaintiff's fall was a high traffic area and that employees of the landowner were trained to watch for patrons tracking in snow or rain water into the premises in the area in question.  For this additional reason, the defendant's motion for summary judgment was denied.

Anyone wishing to review this decision by Judge Mehalchick may contact me at

Friday, February 5, 2016

Judge Gibbons Grants Summary Judgment Based on Waiver Form and Assumption of Risk in Football Injury Case

With the Super Bowl on the horizon comes the case of first impression of Feleccia v. Lackawanna Coll., No. 12-CV-1960, 2016 WL 409711 (C.P. Lacka. Co. Feb. 2, 2016 Gibbons, J.), in which Judge James A. Gibbons of the Lackawanna County Court of Common Pleas was faced with the issue whether two junior college students who were injured at a preseason football practice were barred from recovering against the college because both signed waivers of liability prior to their injuries.

In a Motion for Summary Judgment, the defendants also raised the issue of whether, as a matter of law, the Plaintiff’s claims were barred by their assumption of the risk of being injured.

Judge James A. Gibbons
Lackawanna County
In his Opinion, Judge Gibbons noted that, while Pennsylvania courts have upheld exculpatory releases for skiing, whitewater rafting, weight lifting, skating, and motorcycling, among other types of activities, no case was found involving collegiate football.

Judge Gibbons nevertheless ruled that neither the applicable law nor the facts of this case required the court to distinguish between the inherently dangerous nature of football and these other types of sporting activities noted.

As such, the court ruled that waivers of liability executed by the students precluded their recovery.

Alternatively, the court also found that the students assumed the risks of their injuries.  As such, similar to the Denzel case recently highlighted here on Tort Talk, a trial court does have the discretion to enter summary judgment on an application of the assumption of risk doctrine where no reasonable minds on a jury could disagree on a conclusion that a plaintiff assumed the risk of incurring his or her injuries. 

Accordingly, summary judgment was entered in the Defendant's favor in this matter.

Anyone wishing to review this Feleccia decision by Judge Gibbons may click this LINK.


Pennsylvania Superior Court Revisits Forum Non Conveniens Doctrine

In its recent decision in the case of Fessler v. Watchtower Bible & Tract Society, Inc., 2015 Pa. Super. 274 (Pa. Super. Dec. 30, 2015 Jenkins, Mundy, Fitzgerald, J.J.)(Op. by Jenkins, J.), the Pennsylvania Superior Court addressed current status of Pennsylvania law on the doctrine of forum non conveniens relative to a matter involving a consolidation of appeals in two separate cases.

The Superior Court noted that conveniens, not the pursuit of verdicts in Plaintiff-friendly venues, is the reason why Plaintiffs have the initial choice of venue.   The court stated that, under Pennsylvania law, the Doctrine of Forum Non Conveniens is a necessary counter balance to the Plaintiff’s first choice in this regard. 

The Superior Court reiterated that, under the Cheeseman and Bratic Pennsylvania Supreme Court decisions a determination of a forum non conveniens motion presented to the court requires a consideration of the totality of the circumstances.  

Generally, the court agreed that the possibility of oppressiveness with regards to the forum selected by the Plaintiff grows with each passing mile that a witness must travel to reach the courthouse.  The Superior Court noted that a need to travel 100 miles nears the level of oppressiveness addressed in the law.  

With respect to one of the cases at issue in this matter, the court noted the York County transfer, while adequately supported in the record, was filed too late as it was filed two weeks before trial.  The court also noted that the request was that the case be transferred to York County which had the largest backlog of civil cases in the Commonwealth which would result in a substantial delay of a trial in a matter that was set to be tried in two weeks at the time the motion was filed.  The court also noted that the motion was filed after the allegedly inconvenience witnesses had already come to the Philadelphia area for their depositions without objection.   With trial already scheduled, the Superior Court thought that it was an abuse of discretion to grant this last minute motion. 

As such, the trial court's transfer of the matter out of the Philadelphia County Court of Common Pleas was reversed in both cases as the Superior Court found that a trial of the matter in Philadelphia County would be, at most, inconvenient, but not oppressive.

Anyone wishing to read this Fessler decision may click this LINK

Summary Judgment Granted In Slip and Fall Case Based Upon Assumption of Risk Defense

In the recent decision of Denzel v. Fed. Cleaning Contractors, Inc., PICS Case No. 16-0056 (C.P. Lehigh Co. Oct. 22, 2015 Varricchio, J.), the Lehigh County Court of Common Pleas ruled that, while Defendant-mall owners and managers owed the Plaintiff a duty to exercise reasonable care to protect the Plaintiff from conditions that were known or discoverable to the Plaintiff, the Plaintiff was found to have assumed the risk of her injury by knowingly and voluntarily walking over the patches of snow and ice.  As such, the court found that Defendants’ duty to the Plaintiff was discharged and that the Plaintiff could not establish negligence.   Accordingly, the Defendants’ Motion for Summary Judgment was granted.  

Tort Talkers may recall that the Pennsylvania Superior Court previously issued a decision on October 9, 2015 in the same case confirming that the trial court may enter summary judgment in favor of a Defendant in a slip and fall case based upon the assumption of risk defense.   To view that Tort Talk entry, click HERE.

 To review the more recent trial court Opinion from October 22, 2015 in the Denzel case, please call the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and provide the above-referenced PICS Case No. and pay a small fee.  

To view other Assumption of Risk decisions, please go to Tort Talk at and scroll all the way down the right hand blue column until you get to the "Labels" section and click on the Label for 'Assumption of Risk.'

Wednesday, February 3, 2016

Judge Nealon of Lackawanna County Grants Request for Discontinuance in Favor of One Defendant in a Case Not Entirely Resolved

In his recent January 19, 2016 Opinion in the case of Lapinski v. Schiowitz, No. 2009-CV-4287 (C.P. Lacka. Co. Jan. 19, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of a Defendant seeking to be dismissed from a lawsuit by way of a Discontinuance when the entire lawsuit has not yet concluded.  

In Lapinski, the Defendant-hospitals in a malpractice action filed Motions for Discontinuance seeking their dismissal as named defendants pursuant to Pa. R.C.P. 229(b)(1).  

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon confirmed that no cross-claims were asserted against the Defendant-hospitals by any Co-Defendant under Pa. R.C.P. 1031.1.   Moreover, no expert report had been produced in the case by any party alleging any liability on the part of the Defendant-hospitals who were seeking dismissal by way of a Discontinuance. 

The court noted that the only claim against the Defendant-hospitals was the Plaintiffs’ original allegation that the Defendant-surgeons were ostensible agents of the Defendant-hospitals such that the hospitals were vicariously liable for the surgeons’ negligence.   When the Plaintiffs chose to abandon that only claim asserted against the Defendant-hospitals, the hospitals sought the dismissal.   The court also noted that the Plaintiff had stipulated in writing their agreement to the dismissal of the Defendant-hospitals. 

The Co-Defendant-surgeons opposed the requested Discontinuances.  As such, the Defendant-hospitals filed the motion at issue.

Judge Nealon ruled that the Defendant-surgeons had no basis to oppose the Discontinuance of this action against the Defendant-hospitals since the surgeons did not assert any cross-claims against the Defendant-hospitals.  The court also ruled that the Defendant-surgeons could not compel the Plaintiff to litigate an ostensible agency claim that the Plaintiffs had elected to withdraw.  

The court also ruled that another judge’s denial of the Defendant-hospitals’ previous Motion for Summary Judgment did not serve to preclude the granting of the Motion to Discontinue at issue.

Accordingly, the court granted the Defendant-hospitals’ Motion for Leave of Court to Discontinue under Rule 229(b)(1) and the Defendant-hospitals were removed as parties from the case. 

Anyone wishing to read this Opinion by Judge Nealon in the Lapinski case may click this LINK.

Commentary:  It would appear that the ruling and reasoning of Judge Nealon in this medical malpractice case could be applied in other types of civil litigation matters where a party Defendant requests a Discontinuance in a multi-Defendant matter where the Plaintiff agrees to forego any claims against that Defendant and where there are no cross-claims asserted by any other Defendant.

Source of image ("Discontinued")

Tuesday, February 2, 2016

Supreme Court to Decide Post-Tincher Issue of Whether "Unreasonably Dangerous" Standard Applies in Failure-To-Warn Cases

In an Order hnaded down by the Pennsylvania Supreme Court dated February 1, 2016 in the case of Vinciguerra v. Bayer Cropscience Inc., 447 EAL 2015 (Pa. Feb. 1, 2016), the Court agreed to address the following Post-Tincher issue in products liability cases:

"Whether, under the Court’s recent decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), a defendant in a strict-liability claim based on a failure-to-warn theory has the right to have a jury determine whether its product was “unreasonably dangerous[?]”

A copy of the Supreme Court's Order can be viewed HERE.

See also Amato v. Bell & Gosset, Clark-Reliance Corp., No. 448 EAL 2015, 2016 WL 381069 (Pa. Feb. 1, 2016) HERE.

I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith for bringing this Order to my attention.  Check out Attorney Beck's excellent Drug and Device Law Blog HERE.

Monday, February 1, 2016

Ability of Parent To Recover Damages In Own Right Where Child Injured In MVA

A common question in automobile accident personal injury matters is to what extent a parent can recover damages in a case where claims are pursued on behalf of a minor Plaintiff. 

This issue was addressed in a recent decision by Lycoming County Court of Common Pleas Judge Richard A. Gray in the case of Ritter v. Makos, No. 14-02653 (C.P. Lycoming Co. Nov. 5, 2015 Gray, J.).

In Ritter, the Plaintiff-mother was driving with the Plaintiff-minor, i.e., her daughter, when they were involved in a motor vehicle collision.  A Complaint was filed for personal injuries to the minor Plaintiff.  The Plaintiff-mother did not sustain any permanent personal injuries.

A separate Complaint was filed on behalf of the Plaintiff-mother for her alleged damages arising out of the same accident.  Included in the Plaintiff-mother's Complaint was a claim for a recovery by the Plaintiff-mother of health care costs expended, or to be expended, out-of-pocket by the mother for treatment for the child up to the child reached the age of 18

A claim for the pecuniary value of any services the child would have provided to her mother during child's minority if the child was not injured was also asserted on behalf of the Plaintiff-mother.

The defense filed Preliminary Objections asserting that the Plaintiff-mother's claims should be dismissed for failure to state a claim upon which relief may be granted. 

The court denied the Preliminary Objections and noted that the defense had only cited to 75 Pa.C.S.A. Section 1722 of Pennsylvania's Motor Vehicle Financial Responsibility Law ("MVFRL"), but no caselaw.

Judge Richard A. Gray
Lycoming County
Judge Gray ruled that the MVFRL did not generally preclude a claim by a parent of a minor child injured in a motor vehicle accident.

The court noted that, under Pennsylvania law, a personal injury to a minor child gives rise to two separate and distinct causes of action.  First, there is a recognized claim for pain and suffering to the child and for losses after the child reaches the age of majority.  Also recognized under Pennsylvania law is a claim by a parent(s) of the injured child for medical expenses and the loss of the minor's services during the minority period of the child's life.

The court noted that, while Section 1722 of the MVFRL precludes double recoveries in auto accident personal injury cases, the claims of the parent and child asserted were separate and distinctly recognized recoverable claims such that no double recovery was involved.

As such, the Preliminary Objections were denied in this regard.

The Preliminary Objections were sustained to the extent the parent was attempting to recover damages for health care expenses and related costs recoverable by the guardian of the minor on the separate claims pursued on behalf of the minor Plaintiff.

Anyone wishing to review this case may click this LINK.

Source:  "Digest of Recent Opinions."  Pennsylvania Law Weekly (Jan. 12, 2016).