Thursday, October 27, 2016

Preliminary Objections Based on Lack of Timely Service of Process Sustained

In the Berks County case of Wilkinson v. Miller, 108 Berks 312 (C.P. Berks Co. 2016), the court sustained Preliminary Objections in a case where the Writ of Summons was filed before the expiration of the applicable statute of limitations but where the Plaintiff took no action to effectuate service for thirteen (13) months, which time period went well past the expiration of the statute of limitations. 

In dismissing the Complaint, the court found a lack of a good faith effort on the part of the Plaintiff required by Pennsylvania law to serve original process upon the Defendant.

I do not have a copy of this decision but have provided the above citation.  

Source:  "Court Summaries" by Timothy L. Clawges, Pennsylvania Bar News (Sept. 26, 2016).

Tuesday, October 25, 2016

Judge Nealon of Lackawanna County Grants Motion for Coordination of Actions Arising Out of Same Accident But Filed in Separate Counties

In his recent decision in the case of Rogers v. Thomas, No. 12-CV-1464 (C.P. Lacka. Co. Oct. 21, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a Motion to Coordinate two actions filed in two separate counties arising out of the same accident.

Judge Nealon reviewed the Motion for Coordination under the applicable Rule of Civil Procedure, i.e., Pa.R.C.P. 213.1.

The cases involved a shooting incident that occurred in Susquehanna County.  There was one action pending in Susquehanna County and one action pending in the Lackawanna County Court of Common Pleas.

Given that (1) the incident occurred in Susquehanna County, (2) the two cases involved the same theories of liability, (3) each case was supported by the same fact and expert witnesses, (4) Susquehanna County was the most convenient forum for the witnesses and (5) given that there was no connection with Lackawanna County, the court granted the Motion and ordered that the cases be coordinated in Susquehanna County.

Judge Terrence R. Nealon
Lackawanna County

In so ruling, Judge Nealon noted that coordination of these actions would further the Rules goal of avoiding duplication of effort, avoiding multiple trials on the same matter,and avoiding inconsistent judicial decisions and verdicts.

Anyone wishing to review this decision may click this LINK.

Monday, October 24, 2016

Federal Middle District Court Judge James M. Munley Grants Offensive Motion for Summary Judgment Filed by Plaintiff on Liability in Car Accident Case

In the case of Broe v. Manns, No. 3:15-cv-985 (M.D. Pa. Sept. 27, 2016 Munley, J.), Judge James M. Munley of the United States District Court for the Middle District of Pennsylvania granted an offensive Motion for Summary Judgment filed by the Plaintiffs on the issue of liability in a motor vehicle accident case.  

According to the Opinion, this case arose out of a rear-end motor vehicle accident.  

The Plaintiff filed a Complaint alleging negligence and loss of consortium. Thereafter, the Plaintiff moved for partial summary judgment on the issue of liability.  

After reviewing the summary judgment standard of review, the court granted the Plaintiff’s Motion for Partial Summary Judgment on liability.  

The Plaintiff main contention was that the Defendant’s admission that he failed to brake to avoid the Plaintiff’s vehicle constituted negligence per se.  

The Defendant countered with an argument that his admission, given during a deposition, was an insufficient basis upon which to grant summary judgment.   The Defendant also asserted that the sudden emergency doctrine relieved him from liability. 

The court stated that it is well-settled that a violation of the Pennsylvania Motor Vehicle Code constitutes negligence per se.   Relying upon Pennsylvania Motor Vehicle Code provisions, including the assured clear distance ahead statute at 75 Pa. C.S.A. §3361, and noting that the police cited for violating that statute, the court found that the Defendant’s admission in this regard eliminated any genuine issue of material fact.   The court found that the Defendant’s admissions, coupled with the citations for violating the assured clear distance ahead statute, sufficiently established negligence per se.   Since the Defendant had not identified any genuine issues of material fact, the court found that there was no sufficient evidentiary basis upon which a reasonable jury could find in the Defendant’s favor on the liability issue.  

The court also rejected the Defendant’s reliance upon the sudden emergency doctrine noting that, under the applicable law, a person cannot avail himself of the protections of that doctrine if that person was himself driving carelessly.   The court stated that, based upon the Defendant’s citation for violating the motor vehicle code, along with his admissions on the issue of liability, the undisputed evidence before the court was found to establish, at the very least, that the Defendant was driving carelessly.  As such, the court found that the Defendant could not rely upon the sudden emergency doctrine to relieve him from liability.  

As stated, overall, the court granted Plaintiff’s Motion for Partial Summary Judgment on the issue of liability.

Anyone wishing to review a copy of this decision may contact me at

I send thanks to Attorney Michael J. Foley of The Foley Law Firm of Scranton, Pennsylvania for bringing this case to my attention.  

Tuesday, October 18, 2016

Judge Brann Applies Iqbal/Twombly Motion to Dismiss Standard of Review

In the case of Long v. Hartford Life and Accident Insurance Co., No. 4:16-CV-00138 (M.D. Pa. Aug. 29, 2016 Brann, J.), Judge Matthew W. Brann of the Middle District of Pennsylvania thoroughly reviewed the current status of the Iqbal/Twombly standard of review for federal court motions to dismiss in the context of breach of contract and bad faith claims arising out of an insurance dispute.

Judge Matthew W. Brann
M.D. Pa.
The court granted the motion in part and denied it in part.  More specifically, the court found that the Plaintiff had adequately pled a breach of contract claim and a general Section 8371 bad faith claim.

However, the court granted the defendant's motion to dismiss another portion of the Section 8371 bad faith claim, finding that Pennsylvania law does not provide recovery for such a claim based upon alleged violations of the Pennsylvania Unfair Insurance Practices Act.

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

Friday, October 14, 2016

SAVE THE DATE: Lackawanna Pro Bono Gala - October 27, 2016

The Lackawanna Pro Bono Gala is set to take place at the Scranton Cultural Center Ballroom on October 27, 2016 from 6:30 pm - 8:30 pm.  RSVP by October 20, 2016.

Program Book Ad opportunities are available with an Ad deadline of October 13, 2016.

Here is a LINK to more information on the purchase of Ads or Tickets to the event.

Tickets or Ads can also be purchased on the Lackawanna Pro Bono website HERE.

Wednesday, October 12, 2016

Failure To Specify Location of Fall Leads to Summary Judgment

In the case of White v. Seherlis, August Term 2014, No. 2511 (C.P. Phila. Co. July 8, 2016 Sarmina, J.), the court entered summary judgment in favor of a Defendant in a case in which the Plaintiff failed to precisely designate the location where she allegedly slip and fell on an allegedly icy, unshoveled sidewalk.  

The court noted in its Opinion that, at trial, the Plaintiff gave slightly conflicting testimony as to the exact location, which raised questions for the jury as to whether the location of the fall was on the Defendant’s property or the property at some other entity.  Although the jury found the Defendants negligent in general, they ruled that the Plaintiff failed to meet her burden of proving the location.  

In this Opinion, the trial court was recommending to the Superior Court that its findings on the Plaintiff's Post-Trial Motions be upheld on appeal. 

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


Source:   “Instant Case Digest,” Pennsylvania Law Weekly (September 2, 2016).

Tuesday, October 11, 2016

Middle District Federal Magistrate Judge Predicts How Pennsylvania Supreme Court Would Rule on PIP IME Issue

In the case of Scott v. Traveler's Commercial Ins. Co., No. 1:14-CV-00535 (M.D.Pa. Oct. 6, 2016 Schwab, M.J.), Federal Magistrate Judge issued an opinion addressing the interplay between an insurance policy provision requiring an insured to undergo IMEs as often as may be reasonably requested by the carrier and a provision of Pennsylvania's Motor Vehicle Financial Responsibility Law (75 Pa.C.S.A. Section 1796) requiring an insurer to petition the state court with a showing of good cause to obtain an order compelling the insured to undergo an IME.

The federal court noted that this was an issue that had not yet been addressed by the Pennsylvania Supreme Court but was a recurring issue in the courts below.

The issue arose in a First Party medical benefits breach of contract case where the carrier denied coverage on the basis, at least in part, of the insured's refusal to attend an IME.

The Scott court predicted that, if faced with the issue, the Pennsylvania Supreme Court would find that the MVFRL's provision prevails over the conflicting insurance policy provision pertaining to IMEs.  Accordingly, the court granted summary judgment to the insured on the liability aspect of his breach of contract claim.

The Plaintiff's bad faith claim was found to be barred by the statute of limitations.

Anyone wishing to read this opinion in Scott may click this LINK.

I send thanks to Attorney Matthew S. Crosby of the law firm of Handler, Henning & Rosenberg, LLC for bringing this case to my attention.  Attorney Adam Reedy of that office handled the matter.

Monday, October 10, 2016

Pennsylvania Supreme Court Finds that Federal Arbitration Act Trumps State Rule on Bifurcation in Nursing Home Death Case

In the case of Taylor v. Extendicare Health Facilities, Inc., No. 19 WAP 2015 (Pa. Sept. 28, 2016), the Pennsylvania Supreme Court reversed a trial court's decision and the Superior Court's affirmance of the same, where the lower courts both ruled in favor of denying a nursing home's motion to bifurcate the wrongful death and survival actions in a case where the nursing home sought to compel arbitration of the survival claims pursuant to an arbitration agreement.

According to the Opinion, when the decedent entered the nursing home an alternative dispute resolution agreement was signed that called for the arbitration of matters arising regarding the decedent's stay at the facility.  Following the decedent's death, the Plaintiffs instead filed a wrongful death and survival action lawsuit.

The nursing home filed a motion to bifurcate the claims along with a motion to compel arbitration of the survival claims under the arbitration agreement.  The trial court denied the motion to bifurcate under Rule 213(b) and also held that it did not have the authority to compel arbitration under the Federal Arbitration Act.  The Superior Court affirmed.

With this latest decision in the matter, the Pennsylvania Supreme Court reversed and held that the mandates of the Federal Arbitration Act, along with United States Supreme Court precedent, trumped the procedural mechanism found under Pennsylvania Rule of Civil Procedure 213(b). The Majority reluctantly noted that the Federal Arbitration Act mandated that courts enforce arbitration clauses where appropriate.  As such, the decisions of the lower courts were reversed and the matter sent back to the trial court for further proceedings.

The Majority Opinion in Taylor written by Justice David Wecht can be read HERE.

The Concurring Opinion of Chief Justice Saylor, joined by Justice Baer, can be viewed HERE.

Justice Donohue's Dissenting Opinion can be viewed at this LINK.

For other Tort Talk posts on lower court cases on similar nursing home arbitration issues, click HERE

ARTICLE: Presidential Candidates and the Federal Bench's Future

This article of mine appeared in the September 29, 2016 edition of The Legal Intelligencer and is republished here with permission:

Presidential Candidates and the Federal Bench's Future

By Daniel E. Cummins, The Legal Intelligencer

September 29, 2016 

With the election for President of the United States set to take place on Nov. 8, and fast approaching, here's a review of the legal background of the Presidential candidates and their position on the selection of federal court judges and tort reform.

Legal Background of Candidates

To some voters, whether or not a ­candidate has a legal background may be a factor to be considered in selecting the next President.

Democratic Presidential candidate Hillary Clinton is a graduate of Wellesley College—where she majored in political science–and Yale Law School.

While in law school, she served on the editorial board of the Yale Review of Law and Social Action. It was at Yale Law School where Hillary Clinton met her ­husband, Bill Clinton, a fellow student. Hillary Clinton received her juris doctor degree in 1973.

Over the early part of her legal career, Hillary Clinton focused on children's law and family policy. At times in the 1970s, she has worked as a law professor at the University of Arkansas School of Law. By 1979, she was working as a partner in a law firm in Arkansas and worked with that firm until approximately the time her ­husband was elected President in 1992.

Republican Presidential Candidate Donald Trump began college at Fordham University in New York City but ­eventually transferred and obtained a bachelor's degree from the Wharton School of Finance and Commerce of the University of Pennsylvania in 1968.

Trump did not attend law school. While not a lawyer, Trump presumably worked in close proximity with many lawyers over the course of his career in business and real estate ventures.

The Candidates on Selection of Federal Judges

The next President stands to shape the future of federal law and its application by way of the selection of federal court judges to fill many vacancies at all levels of that court.

Perhaps most importantly on the issue of selecting judges to fill the federal bench, the next President will have an opportunity to fill the still vacant seat of the late Justice Antonin Scalia of the U.S. Supreme court. Also, Justice Ruth Bader Ginsburg is currently 83 years old and Justice Stephen Breyer is 78 years old. As such, there may be additional opportunities to nominate other justices to the Supreme Court during the next Presidential term.

The next President will also have an ­opportunity to direct in which way the ideological pendulum will sway for the next generation, either to the left or the right, by filling many lower federal court vacancies with nominees of their choosing and slant.

Earlier this year, Trump released a list of potential U.S. Supreme Court nominees he would consider in an effort to defeat any notion that he would not pick conservative individuals to fill federal court vacancies. In a statement, Trump stated that his short list of nominees was "representative of the kind of constitutional principles I value." The list consisted of six conservative federal ­appeals court judges appointed by President George W. Bush and five conservative state Supreme Court justices appointed by Republican ­governors from across the United States.

Commentators anticipate that if Hillary Clinton is elected President, she will move toward selecting progressive judges to the ­federal bench who will champion the goals of environmentalists, labor unions, and racial justice advocates.

The Candidates on Tort Reform

Unlike recent Presidential elections, the topic of tort reform, or curbing excessive litigation, has not taken ­center stage this time around. Nevertheless, it remains an important consideration in the selection of the next President of the United States.

To date, Trump has not stated any ­concrete position on the topic of tort reform. However, Trump is no stranger to litigation, whether it be as a plaintiff or a defendant, thereby evidencing his belief in the civil justice system as a means to secure justice and remedies. Thus, although tort reform is a favored topic of conservative Republicans, it may be a difficult topic for Trump to push given his own penchant for litigation.

Commentators have noted that, ­historically Hillary Clinton has opposed tort reform efforts. In the past, she has even been in favor of expanding tort law to allow victims of gun violence to sue the gun industry for selling guns to criminals.

Accordingly, it appears that the topic of tort reform will remain off the radar this campaign season and questions remain as to whether it will come to the forefront during the term of the next President, regardless of who is elected.

Be Heard With Your Vote

Whatever one's position may be on the above topics, the most important thing is to exercise one's constitutionally protected right to vote. The Democratic and Republican candidates have strong and ­divergent views on the issues of the day, perhaps the most compelling of which to litigators is the future of the federal bench. A visit to the voting booth on Election Day will allow Pennsylvania litigators to be heard on this all-important topic.

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


Thursday, October 6, 2016

Judge Mannion of Middle District Addresses Scope of Permissible Expert Testimony At Trial

In the case of Dorshimer v. Zonar Systems, Inc., No. 3:13-CV-0553 (M.D. Pa. Aug. 8, 2016 Mannion, J.), Judge Malachy E. Mannion granted a Defendant’s Motion In Limine and ruled that a Plaintiff’s expert would not be permitted to offer opinions that an agency or contractual relationship existed between certain persons involved in the matter.  

Judge Malachy E. Mannion
M.D. Pa.
The court ruled that opinion testimony of these legal questions would not be helpful to the jury and, therefore, such testimony was not admissible under the Federal Rules of Evidence pertaining to expert testimony.   Judge Mannion also noted that there was no showing that  the engineering witness had any expertise in contract or agency law.  

Anyone wishing to review a copy of this Opinion may click this LINK.  The companion Order can be viewed HERE

I send thanks to Attorney James M. Beck of the Philadelphia law firm of Reed Smith for bringing this case to my attention.  


Tuesday, October 4, 2016

A Nice Primer on the Dead Man's Rule

A nice primer on the Dead Man’s Rule is provided by the court in the case of Davis v. Wright, July Term 2015, PICS Case No. 1828 (C.P. Phila. Co. Aug. 2, 2016 Robinson, J.) in which the court recommended its decision granting summary judgment in favor of the Defendants be affirmed on appeal on the basis of the application of the Dead Man’s Rule.

In its Opinion, the court reviewed the parameters of the Dead Man’s Act, 42 Pa. C.S.A. §5930, and also reviewed ways in which that defense could be waived.  

The court found that the defense was not waived in this matter and, instead, applied to support the entry of summary judgment in favor of the Defendants in a car accident case in which the Defendant died. 

The court agreed with the defense position that the Plaintiff witnesses were incompetent as witnesses under the Dead Man’s Act and that, without the testimony of these witnesses, the Plaintiffs were unable to carry of burden of proof of negligence at trial.  

The court also rejected the Plaintiff’s attempt to rely on the testimony of the investigating officer, who was not a witness to the accident.  


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


Source:   “Instant Case Digest,” Pennsylvania Law Weekly (September 2, 2016).


Sunday, October 2, 2016

SAVE THE DATE FOR A WORTHY CAUSE: The Lackawanna Pro Bono Gala - October 27, 2016

The Lackawanna Pro Bono Gala is set to take place at the Scranton Cultural Center Ballroom on October 27, 2016 from 6:30 pm - 8:30 pm.  RSVP by October 20, 2016.

Program Book Ad opportunities are available with an Ad deadline of October 13, 2016.

Here is a LINK to more information on the purchase of Ads or Tickets to the event.

Tickets or Ads can also be purchased on the Lackawanna Pro Bono website HERE.