Friday, April 29, 2016

REGISTRATION FORM FOR LACKAWANNA PRO BONO GOLF TOURNAMENT



The Lackawanna Pro Bono Golf Tournament is set for June 10, 2016 at the Blue Ridge Trail Golf Club in Mountaintop, Pennsylvania with a shotgun start at 12:30 p.m.

The Golf Tournament will be preceded by a CLE program and Lunch at 11 a.m. that I will present
Daniel E. Cummins
CLE presenter
 
entitled "Golf Lessons: Tips for Professionalism and the Ethical Practice of Law."  I will utilize video clips in a hopefully entertainingly quick hour-long ethics credit CLE that will touch on a variety of ethical rules as well as the PBA's Working Rules of Professionalism.

If you are not a golfer, you can attend the CLE and Lunch at a lesser price and still thereby support Lackawanna Pro Bono.

Please consider supporting Lackawanna Pro Bono, Inc. at this event.

Here is a LINK to the Registration form to participate in the Golf Tournament and/or the CLE program.










Thursday, April 28, 2016

Summary Judgment Granted Where Plaintiff Did Not Identify Correct Driver in Car Accident Suit

In the Delaware County Court of Common Please case of Moore v. Gilligan, PICS Case No. 16-0357 (C.P. Del. Co. Dec. 9, 2015  Green, J.), the court approved summary judgment in favor of a Defendant in a case where the Plaintiff did not identify the correct Defendant driver involved in the accident.  

The court in this decision ruled that the official note to Rule 1029(c) did not require a Defendant to specifically deny that he was the driver involved in the subject accident.  The Defendant had denied the Plaintiff’s allegation that he was the driver by simply indicating that he was without information or knowledge to form a belief as to the truth of the allegations.  The Defendant otherwise specifically denied that the answering Defendant was in anyway negligent.   Moreover, the court found no evidence that the named Defendant concealed the driver’s identity.  

The court granted summary judgment in favor of the Defendant even though the motion was filed prior to the close of discovery.  

In his Answers to the discovery, the Defendant asserted that his niece was the driver involved and that he had no personal involvement in the accident.  

 
Anyone wishing to review a copy of this case may contact the Pennsylvania Law Weekly’s Instant Case Service by calling 1-800-276-7427 and provide the above PICS Case No. and pay a small fee.  

 

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (March 20, 2016).


 

Wednesday, April 27, 2016

Federal Court Rules that Tincher Decision Did Not Change Daubert Test for Admissibility of Expert Testimony

In a recent decision out of the Federal Eastern District Court of Pennsylvania in the case of DeJesus v. Knight Industries &Associates, No. 10-07434 (E.D. Pa. April 18, 2016 Pappert, J.), the court granted a Daubert motion pertaining to a Plaintiff’s expert in a products liability case involving a Plaintiff who was allegedly injured as a result of an allegedly defective lift table in a Harley Davidson manufacturing plant.  The allegedly defective lift table was manufactured by Knight Industries.  

In its decision, the court noted that the Pennsylvania Supreme Court case of Tincher altered Pennsylvania law in products liability cases by returning the “unreasonably dangerous” question to the jury.  The court also noted that Tincher changed Pennsylvania law by rejecting the per se  elimination of negligence concepts from strict liability law.  To the contrary, the court stated that both prongs of Tincher’s composite risk/utility and consumer expectation tests are ordinarily to be decided by the jury.  

The Tincher decision was also found to have rejected the theory of defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders the product unsafe for its intended use.  

However, the federal district court stated that the Tincher decision did not affect its prior exclusion of the Plaintiff’s expert testimony in this matter because the Tincher decision did not affect the law pertaining to the Daubert analysis and that law’s prohibition of speculative and unreliable expert testimony.  

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

I send thanks to Attorney James Beck of the Philadelphia office of Reid Smith and the writer of the notable legal blog, The Drug and Device Law Blog.    


 

Judge Williamson of Monroe County Denies Summary Judgment in Slip and Fall Case

In the case of Pagano v. RP Hoffman Excavating, PICS Case No. 16-0358 (C.P. Monroe Co. Dec. 21, 2015 Williamson, J.), the court denied a Motion for Summary Judgment in a slip and fall case involving ice in a parking lot.  

The court found that questions of fact regarding the Defendant’s duty to plow under its snow removal contract rendered summary judgment inappropriate.

The court also found that there were questions of fact as to whether the ice in the parking lot had accumulated from natural causes such that summary judgment was precluded under the Hills and Ridges doctrine.   In this regard, the court noted, in part, that there did not appear to be generally icy conditions in the area.  The Hills and Ridges doctrine was noted not to apply to issues involving localized ice because it would be comparatively easy for a property owner to alleviate a localized ice condition.  

Anyone wishing to review a copy of this case may contact the Pennsylvania Law Weekly’s Instant Case Service by calling 1-800-276-7427 and provide the above PICS Case No. and pay a small fee.  

 
Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (March 20, 2016).


 

 

Monday, April 25, 2016

New Susquehanna County Court of Common Pleas Local Rule of Note

It appears that the days of having to drive to Montrose, PA to file a discovery motion in the Susquehanna County Court of Common Pleas are a thing of the past.

Click HERE to view the new local rules issued by the court effective March 16, 2016 in this regard.

REMEMBER TO SAY THANKS: Administrative Professionals Day is April 27th

 
 

Thursday, April 21, 2016

Judge Zulick of Monroe County Addresses Service of Process Issues




In the service of process case of Ramos v. Rogosich, PICS Case No. 16-0363 (C.P. Monroe Co. Dec. 10, 2015 Zulick, J.), the court denied a Defendant’s Preliminary Objections and found that the Plaintiff had made a good faith effort to obtain service on the Defendant in a slip and fall case.

According to the Opinion, the Plaintiff was allegedly injured in a slip and fall on October 13, 2009. 

The Plaintiffs filed a Writ of Summons on October 5, 2011, which was shortly before the expiration of the statute of limitations.  The Plaintiffs attempted to serve the Defendant through the Sheriff’s office but was unsuccessful.  The Plaintiffs asserted that the address they provided to the Sheriff was the same address that the Plaintiffs used to mail rent checks to the Defendants during their tenancy on the premise. 

Several months later, the Plaintiff reissued the Writ on March 21, 2012.   No Return of Service of the Writ was filed by the Plaintiffs until the Plaintiff’s attorney filed an Affidavit of Service on June 22, 2015, which included a return receipt signed by the Defendant dated March 23, 2012, which was two (2) days after the Writ was reissued.    

The court found that the Plaintiffs made valid investigations in an effort to locate the Defendants and, as such, a good faith effort was found and the Preliminary Objections were denied.  

Anyone wishing to review a copy of this decision may contact me at dancummins@comcast.net.
 

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (March 20, 2016)

Source of imagewww.servingpapers.com


 

Tuesday, April 19, 2016

Western Federal District Court Reviews Whether UIM Carrier Allowed an Offset on Wage Loss Claim by Social Security Benefits Paid to Plaintiff



In a recent decision out of the U.S. District Court for the Western District of Pennsylvania, the court denied a UIM carrier’s Motion for Partial Summary Judgment in a breach of contract and bad faith case in which the carrier was seeking an offset under 75 Pa. C.S.A. §1722 of the Motor Vehicle Financial Responsibility Law for Social Security Disability benefits received by the Plaintiff. 

In the case of Smith v. Progressive Specialty Insurance, No. 2:15-CV-528 (W.D. Pa. Feb. 17, 2016 McVerry), the court rejected the UIM carrier’s “novel theory that, under Tannenbaum, any award to Plaintiff for lost wages must be reduced to the extent that she received Social Security disability benefits. 

The Smith v. Progressive case arose out of an incident during which a pedestrian Plaintiff was struck by a motorist in a supermarket parking lot.   The Plaintiff alleged serious injuries and an inability to work.  The Plaintiff applied for and received Social Security Disability Benefits that totaled $1,174.00 per month.  

With respect to this litigation, the Plaintiff brought an underinsured motorist claim against Progressive Insurance for damages, including lost wages.  

With its Motion for Partial Summary Judgment, Progressive argued that the Plaintiff was precluded from recovering UIM benefits for lost wages in the amount of the Social Security benefits that the Plaintiff was receiving.  The Plaintiff countered with an argument that the disability benefits were a collateral source that could not be utilized to reduce the UIM benefits that she was owed under the policy.  

In his decision, Judge McVerry reminded the reader that, in Tannenbaum v. Nationwide Ins., 992 A.2d 859 (Pa. 2010), Pennsylvania Supreme Court ruled that income loss benefits are subject to an offset if they fall under §1722’s definition of “‘any program, group contract or any other arrangement for payment of benefits.’”   Judge McVerry noted that, in Tannenbaum, the court was faced with the issue of whether Social Security Disability benefits qualify as a group, program, or arrangement under §1722.  

Judge McVerry noted that, in the Tannenbaum decision, the Pennsylvania Supreme Court reviewed the previous Pennsylvania Superior Court decision in the case of Browne v. Nationwide Mutual Insurance, 674 A.2d 1127 (Pa. Super. 1996) in which that court held that Social Security Disability Benefits did not fall within the purview of §1720 and 1722 of the Motor Vehicle Financial Responsibility Law because such Social Security Disability Benefits were never subject to subrogation.   It was also noted that the Browne court explained that the Pennsylvania legislature could have specifically named disability benefits as falling within the §1722 preclusion.  McVerry noted that, instead, as the Superior Court indicated in Browne, §1722 was designed to refer only to benefits that are specifically recoverable as first-party benefits under the MVFRL.  

Judge McVerry went on to note in this Smith v. Progressive case that Tannenbaum did not expressly diavow this rationale.   Moreover, Judge McVerry indicated that the Tannenbaum court otherwise disapproved of the Browne court’s holding that, where benefits were paid for or earned by an insured through his employment, there should be no offset.

Based upon this review of the law, Judge McVerry denied the UIM carrier’s Motion for Partial Summary Judgment and rejected the UIM carrier’s novel theory that, under Tannenbaum, any award to the Plaintiff for lost wages must be reduced to the extent that a Plaintiff received Social Security Disability Benefits. 

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

Source:  Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog which can be viewed HERE.

Monday, April 18, 2016

Cooper Interrogatories Addressed to Plaintiff's Treating Physician Reconsidered By Judge Mazzoni of Lackawanna County

Tort Talkers may recall that I recently posted on the case of Mina v. Hua Mei, Inc., 2012-CV-7781 (C.P. Lacka. Co. 2016 Mazzoni, J.) HERE in which Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas ruled that a Plaintiff's treating doctor could be compelled to respond to Cooper Interrogatories seeking bias information, including financial information relative to the experts medical-legal activities.

UPDATE:  On April 14, 2016, the trial court in Mina issued a detailed Order granting the Plaintiff's Motion for Reconsideration and reversing its original decision.  Relying, in part, on an affidavit from Plaintiff's counsel that the Plaintiff's attorney had no prior relationship with the expert.

Senior Judge Robert A. Mazzoni
Lackawanna County
 
Judge Mazzoni noted that, upon further consideration of the matter, the threshold test mandated by Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006) of showing that the Plaintiff's treating physician was a "professional witness" had not been met by the defense.  Accordingly, the court found that it would not be appropriate to allow for the more intrusive Cooper Interrogatories to be submitted to that expert.

In so ruling, Judge Mazzoni confirmed that treating physicians are not exempt from being submitted to Cooper Interrogatories in an appropriate case.  Judge Mazzoni stated that "[t]he application of Pa.R.C.P. 4003.5 and relevant case law do not carve out exceptions for treating physicians nor do they exclusively apply to independently retained medical experts.  The Rule and relevant case law cited in this Court's initial Order are party neutral make no distinction whether the non-party expert is retained by the Plaintiff or the Defendant."

Anyone wishing to review Judge Mazzoni's latest Order in this case can click this LINK

Judge Mazzoni's original decision can be viewed HERE.

I send thanks to Atttorney Melissa J. Foley of the Scranton, PA law office of Jill Miller & Associates, P.C., for bringing this case to my attention.

Friday, April 15, 2016

SAVE THE DATE: JUNE 10, 2016 - LACKWANNA PRO BONO GOLF TOURNAMENT



The Lackawanna Pro Bono Golf Tournament is set for June 10, 2016 at the Blue Ridge Trail Golf Club in Mountaintop, Pennsylvania with a shotgun start at 12:30 p.m.

The Golf Tournament will be preceded by a CLE program and Lunch at 11 a.m. that I will present entitled "Golf Lessons: Tips for Professionalism and the Ethical Practice of Law."  I will utilize video clips in a hopefully entertainingly quick hour-long ethics credit CLE that will touch on a variety of ethical rules as well as the PBA's Working Rules of Professionalism.

If you are not a golfer, you can attend the CLE and Lunch at a lesser price.

Please consider supporting Lackawanna Pro Bono, Inc. at this event.

Here is a LINK to the Registration form.

Post-Koken/Peer Review Bad Faith Claims Addressed by Judge Williamson of Monroe County

In his recent decision in the case of Dehoyos v. GEICO, PICS Case No. 16-0260 (C.P. Monroe Co. Dec. 23, 2015 Williamson, J.), the court addressed a Defendant UIM carrier’s Motion to Dismiss Bad Faith Claims.  

In this matter, the Plaintiff pursued a bad faith claim based upon two (2) different theories.   Under the first theory, the Plaintiff alleged a bad faith denial of the Plaintiff’s claim for UIM benefits.   Secondly, the Plaintiff asserted a theory of bad faith based upon the carrier’s denial of the Plaintiff’s claim for first party motorist benefits.  

In this matter, the court had previously granted the UIM carrier’s request for a judgment on the pleadings with respect to the Plaintiff’s UIM motorist benefits claim.   With this latest decision, the court accepted the argument of the carrier that, given that the underlying underinsured motorist benefits claim had been dismissed, the Plaintiff’s claim for bad faith based upon the denial of the UIM benefits should likewise be dismissed.  

The UIM carrier also moved to dismiss the Plaintiff’s claims for bad faith for nonpayment of first party medical benefits pursuant to the case of Herd Chiropractic Clinic C.P. v. State Farm Mut. Auto. Ins. Co.  

The court noted that, in Herd, the Pennsylvania Supreme Court held that an insurer could not be held liable for bad faith in the context of a breach of contract action stemming from a denial of an insured’s first party medical benefits claim where a peer review had been performed and the peer review determined that the treatment was not medically necessary or reasonable.  

Judge Williamson noted that, in the case before him, UIM carrier had conducted a peer review which found that certain previous and future pain management treatment was reasonable and necessary.   The Plaintiff asserted, in part, in this matter, that the first party benefits carrier had acted in bad faith by routinely denying payment of bills, including a bill from the pain management provider that should have been paid according to the peer review.  

Judge Williamson denied the UIM carrier’s Motion for Partial Summary Judgment as to the bad faith claim regarding the first party benefits given that discovery on the issues presented was not completed and given that there were still facts in dispute under the discovery completed to date.  

More specifically, Judge Williamson noted that the Herd decision was applicable to a peer review performed for a particular provider.   In the matter before Judge Williamson, there were issues with respect to medical benefits payment relative to several different providers and that there was no evidence of any peer review having been completed with respect to certain other providers.   Accordingly, there were disputes about bills paid or not paid or paid after significant delay which bills had not been subjected to a peer review.   Judge Williamson felt that further discovery might clarify these issues.   

Moreover, Judge Williamson found, in part, that the Herd decision was not applicable to the case before him because the peer review had found that certain medical bills and treatment relative to the Plaintiff’s treatment with the pain management specialist were reasonable and necessary.  

The court also found factual disputes given that there is deposition testimony from the claims adjuster acknowledging that she had denied payment for a bill from that pain management provider in error when those bills had been approved by the peer review.  

Judge Williamson also rejected the defense argument that, since these first party benefits carrier had ultimately paid the disputed bills, summary judgment was not warranted.  The court rejected this argument because the Plaintiff had alleged that the delay in payment cased harm.   Judge Williamson felt that this was a factual dispute that should be left to be decided by the jury.   

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

Source:  “Case Digest.”  Pennsylvania Law Weekly (March 8, 2016). 

 

Law of Negligent Entrustment Reviewed by Judge Zulick of Monroe County


For a recent case on the law of negligent entrustment in Pennsylvania, see Judge Arthur Zulick’s Opinion in the case of Waldron v. McHugh, PICS Case No. 16-0296 (C.P. Monroe Co. Nov. 19, 2015 Zulick, J.).  In his Opinion, Judge Arthur L. Zulick found that the car owner was not liable for injuries arising out of an accident based upon a theory of negligent entrustment.

In this matter, the vehicle was owned by grandparents who had given permission to their grandson to drive the vehicle.  At the time of the accident, the vehicle was actually being driven by the grandson’s live-in girlfriend. 

According to the court’s Opinion, the grandparent did not give the girlfriend permission to use the vehicle.   At the time of the accident, the grandson had possession of the grandparent’s vehicle as his vehicle was in the shop.   On the night in question, the girlfriend used the grandparent’s vehicle to go to the grocery store when the collision occurred.   This was the first time that the girlfriend had driven the vehicle.   It was alleged that she drove the vehicle with the permission of her live-in boyfriend.  

The Plaintiff asserted that the grandparents had granted very general permission to use the vehicle to their children and their grandchildren, allegedly including permission for them to allow others to drive the vehicle without further notice to the grandparent.   The Plaintiff further argued that the jury could infer that the grandparent intended that the same permission granted to the grandson extended to the girlfriend.

The court found no evidence to support these allegations.   After reviewing the law of negligent entrustment, the court also noted that the Plaintiff failed to present evidence to meet the other elements of a claim for negligence entrustment.  

Anyone wishing to review a copy of this decision may email me at dancummins@comcast.net. 

Source:  “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 15, 2016).

 

Thursday, April 14, 2016

Article by Judge Wallitsch on Medical Malpractice ADR Proceedings


Here is a LINK to an April 9, 2016 article in The Legal Intelligencer written by noted
Judge Thomas A. Wallitsch
ADR Options, Inc.
 
Mediator/Arbitrator Judge Thomas A. Wallitsch of ADR Options, Inc. providing tips for success at mediations and arbitrations in the medical malpractice setting. 

Please email me at dancummins@comcast.net if you are unable to access the article via the Link provided.

Third Circuit Upholds Summary Judgment On Bad Faith Claim in Favor of Carrier in UIM Context (Non-Precedential)



In the case of Shaffer v. State Farm Mutual Automobile Insurance Company, No. 15-1196 (3d. Cir. March 10, 2016 Jordon, McKie, Vanaski, J.J.) (Not Precedential), the Third Circuit Court of Appeals affirmed the trial court’s summary judgment ruling in favor of the UIM carrier on the Plaintiff’s claim that the carrier had acted in bad faith in handling the UIM claim.   The Third Circuit agreed with the trial court that, viewing the record in a light most favorable to the Plaintiff, no reasonable juror could conclude that there was “clear and convincing” evidence that the carrier acted in bad faith.  

During the lower court proceedings in this matter, when the district court granted summary judgment in favor of the carrier on the bad faith claim, the separate breach of contract claim eventually proceeded to trial and the jury awarded the Plaintiffs a verdict.   The Plaintiff then appealed the summary judgment ruling in favor of the carrier on the issue of bad faith.  
In reviewing the Plaintiff’s claims regarding a delay between the demand for UIM benefits and the insurer’s determination of whether or not to pay a claim, the Third Circuit agreed with the trial court that a delay, in and of itself, does not necessarily constitute bad faith.   The appellate court noted that, rather than focusing solely on the length of the delay, the courts addressing bad faith issues have considered “the degree to which a Defendant insurer knew that it had no basis to deny the claim[].”   The Third Circuit went on to note that, “[i]f delay is attributable to the need to investigate further or even to simple negligence, bad faith has not been shown.”    

In its Opinion, the Third Circuit noted that the Plaintiff did not present any evidence to support their claims that the carrier’s insistence on obtaining a complete medical file was undertaken purposefully to delay the resolution of the claim. 

The court also rejected the Plaintiff’s argument that State Farm retained a consultant position to review the claim as a pretext to deny the claim without a reasonable foundation.   The court noted that, although the carrier’s management of the claim may have been flawed, the Plaintiffs failed to present evidence that the carrier’s delay or intentions were anything other than an attempt to further investigate the Plaintiff’s medical history to determine the value of the UIM claim.  

The Third Circuit also rejected the Plaintiff’s argument that the fact that the Plaintiff later received a substantial jury verdict discredited the carrier’s medical expert and thereby supported a conclusion that the carrier acted in bad faith.   The court noted that a jury’s later determination regarding the credibility of the carrier’s medical review did not affect the reasonableness of the carrier’s earlier reliance upon that review.  

The court also noted that the fact that the UIM carrier’s settlement offer was much lower than the amount the jury ultimately awarded would also not necessarily affect the reasonableness of the carrier’s reliance upon the medical review in making that settlement offer.  

The Third Circuit Court of Appeals also rejected the Plaintiff’s claim that the carrier acted in bad faith by questioning the causal relationship of Plaintiff’s medical condition to the motor vehicle accident even though the same carrier did not do so when it paid all medical expenses under the first party benefits coverage following the accident.   In this regard, the Plaintiff admitted that the inconsistency between the how the claims were handled was, in and of itself, not sufficient to show bad faith.  

The court also rejected the Plaintiff’s argument that the carrier’s bad faith was evidenced by its assertion in the UIM case that the Plaintiff was partially responsible for the accident.  The court found this argument to be “meritless.”   There was no evidence provided that the carrier considered this defense in a frivolous attempt to limit its liability for UIM benefits.  

The appellate court also found no error in the district court’s alleged ignoring the Plaintiff’s insurance expert’s report on the issue of bad faith.   The appellate court noted that the expert review provided legal conclusions without adding any additional facts and, therefore, providing no factual evidence to support a claim of bad faith.  

For these reasons, the appellate court affirmed the trial court’s grant of summary judgment in favor of the UIM carrier on the bad faith issue in this non-precedential Opinion.  

 Anyone wishing to review this Opinion may click this LINK.

 I send thanks to the writers of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention.   
 

Wednesday, April 13, 2016

Commonwealth Court of Pennsylvania Addresses Liability for Dangerous Road Conditions



In its recent decision in the case of Angell v. Dereno, Case No. 458 C.D. 2015 (Pa. Cmwlth. March 10, 2016 Leavitt, J.), the Commonwealth Court ruled that the trial court erred in granting summary judgment in favor of municipalities for failure to correct a dangerous road condition. 

According to the Opinion, this matter involves a motor vehicle accident between a motorcycle and a truck.    The accident occurred at an intersection that was located at the top of a hill which was set up in such a way that the vehicles were unable to see oncoming traffic until reaching the crest of a hill.

The Commonwealth court found issues of fact required that the case be allowed to proceed to a jury.  The court also rejected the municipalities’ argument that they could not be held liable in light of the Defendant driver’s failure to stay within his lane.   Such an argument could only prevail where the road was reasonable safe for its intended use and there was expert opinion testimony in this matter asserting otherwise.

The appellate court also ruled that the trial court erred in finding that the Plaintiff failed to present sufficient evidence that the municipalities had actual or constructive notice of the roadway’s condition.  

A copy of this decision can be viewed online HERE.
 
 
Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (March 20, 2016)

 

Tuesday, April 12, 2016

Vote on Question of Raising Judicial Retirement Age Moved to November


Here is a LINK to an April 12, 2016 Legal Intelligencer article by Ben Seal entitled "Vote on Judicial Retirement Age Delayed" which confirms that the Pennsylvania Legislature has voted to move the public vote on this issue from the April, 2016 primary date to the General Election date in November, 2016.

The reasons behind the delaying of the vote appears to be two-fold.  The legislators appear to want to fine tune the question set to appear on the ballot to make it more consistent with the proposed constitutional amendment on the retirement age for judges and to make the language of the question clearer to the voters.

Also, it has been noted that many Pennsylvania voters are not registered as Democrats or Republicans and, as such, those voters may be unaware that they have the right to vote in the primary election in any event relative to the ballot question on the required judicial retirement age.

Accordingly, as of now, the ballot question will appear on the November 8, 2016 ballot for the General Election.

Distracted Driving Law Apparently Moving Forward in Pennsylvania Legislature



Here is a LINK to an article in today's Times-Tribune in Scranton by Robert Swift entitled "Push Continues For Distracted Driving Bill."

The article notes that it is currently illegal in Pennsylvania for drivers to text while driving.  It is also currently illegal in Pennsylvania for drivers to wear headphones or earphones while their vehicle is in motion.

The legislation at issue seeks to outlaw making calls from hand-held devices while driving.

Monday, April 11, 2016

Trespasser vs. Licensee Issue in Trip and Fall Case Left for Jury to Decide


In the premises liability slip and fall case of Heuring v. Ringmaker, PICS Case No. 16-0297 (C.P. Monroe Co. Nov. 16, 2015 Harlacher Sibum, J.), the court addressed duties owed to a trespasser and/or a licensee in a trip and fall case.  

According to the Opinion, this matter arose out a slip and fall and the Defendant asserted that the Plaintiff was a trespasser on the premises at the time of the incident.   According to the Opinion, the lease allowed the landlord to elect to treat a tenant as a trespasser, tenant by sufferance or as a holdover tenant in the event that the tenant remains in possession after a lease expiration.  

When a Plaintiff failed to vacate the premises at the end of a lease, the landlord began proceedings to have the Plaintiff vacate the premises.   During the course of these proceedings, the Plaintiff slipped and fell while on the premises.  

An issue arose over whether or not the landlord consented for the Plaintiff to remain in possession of the premises during the course of the eviction proceedings.   As such, the issue is whether or not the Plaintiff was a trespasser or a licensee at the time of the incident.  


Judge Jennifer Harlacher Sibum
Monroe County
 
Judge Harlacher Sibum ruled that the question presented was a jury issue and required a factual determination as to whether or not consent was given for the Plaintiff to remain on the premises up to the time of the slip and fall incident.  
The court also found in favor of the Plaintiff on the Defendant’s claims that the Plaintiff.t failed to allege willful and wanton conduct in the Complaint.  The court found that such allegations were within the allegations of negligence and recklessness pled by the Plaintiff.

Overall, the court denied the Defendant landlord’s Motion for Summary Judgment on the issues presented.  

Anyone wishing to review a copy of this decision may email me at dancummins@comcast.net.
   

 

Source:  “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 15, 2016).

 

Thursday, April 7, 2016

Vicarious Liability Claim Based on Negligence of Unnamed Hospital Agents Allowed


In the case of Walker v. Scranton Hospital Company, LLC, No. 2015-Civil-5103 (C.P. Lacka. Co. March 16, 2016 Nealon, J.), the court addressed Preliminary Objections in a wrongful death medical malpractice action alleging a failure to timely diagnose and properly treat a ruptured abdominal aortic aneurysm.  

The Defendant-hospital filed Preliminary Objections seeking to strike the Plaintiff’s vicarious liability claim premised upon the negligence of unnamed agents, challenging certain allegations in the Complaint on the grounds of lack of sufficient specificity, and with respect to a demurrer to the Plaintiff’s corporate liability claim.  

In his Opinion, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied the hospital’s Motion to Strike the vicarious liability claim based upon the negligence of unidentified agents after noting that the Pennsylvania Superior Court recently concluded an another matter that a principal may be vicarious liable for the negligence of agents who are unnamed within a Complaint or referred to as a unit.   The rationale behind this ruling is that the identities of the hospital’s agents who were involved with the decedent’s care should be reflected in the hospital’s own records and should, therefore, be known to the hospital.  

Judge Nealon also ruled that two (2) negligence allegations for “failing to use due care under the circumstances” and “failing to employ appropriate methods of quality assurance” were stricken for lack of sufficient specificity.   The court otherwise denied the hospital’s Preliminary Objections with respect to other allegations in the Complaint.  

Judge Nealon also ruled that, given that the Plaintiff stated a cognizable cause of action for the hospital’s alleged breach of its corporate duties to hire component physicians and implement adequate policies and procedures, the demurrer filed by the hospital Defendant as to the Plaintiff’s corporate liability claim was overruled.  


Anyone wishing to review a copy of this decision by Judge Nealon in the case of Walker v. Scranton Hospital Company may contact me at dancummins@comcast.net.
 
 

Wednesday, April 6, 2016

Summary Judgment for Defense Reversed in Dog Bite Case

In the case of Franciscus v. Sevdik, No. 1699 WDA 2014, 2016 Pa. Super. 52 (Pa. Super. Feb. 29, 2016 Bowes, J.), the Pennsylvania Superior Court ruled that the trial court erred in entering summary judgment in favor of a Defendant pet-sitter in a dog bite case.  

According to the Opinion, the Defendant pet-sitting company was walking an owner’s pitbull when the dog bit the Plaintiff’s daughter, who had asked to pet the dog.   The trial court had granted summary judgment in favor of the pet-sitting Defendants after finding that there was no evidence from which it could be inferred that the company had any knowledge of the dog’s dangerous propensities.  

The Superior Court disagreed and found that there was sufficient evidence to reasonable infer that the pet-sitting Defendants were aware of the dog’s dangerous propensities.   In so ruling, the Superior Court initially noted the law that a dangerous propensities in a dog was not limited to viciousness but, more generally, to a propensity for the dog to injure a person, whether the dog’s attack was motivated by viciousness or playfulness.  

In this matter, the court noted that the owner of the dog had filled out a form for the pet-sitting Defendant in which the owner advised that the dog be walked with a muzzle and not be walked down routes where the dog would encounter other dogs or children.   The dog did not have a muzzle on at the time of the incident and the pet-sitting company allowed the child to approach the dog at the time of the incident.

As such, the entry of summary judgment by the trial court was reversed.  

The court in Franciscus went on to note that, given that it had already resolved the issue before it, it did not need to reach the issue of whether or the trial court erred in refusing to take judicial notice of the dangerous propensities of pitbulls in general.   The Superior Court did note that Pennsylvania law did not distinguish between breeds of dog as having any particular dangerous propensities per se.   The court noted that, under Pennsylvania law, the breed of dog involved typically only comes into play after it is established that the dog at issue had already exhibited dangerous behavior.  

 The Pennsylvania Superior Court also noted that Pennsylvania courts had specifically declined to adopt the proposition of the Restatement of Torts that there be strict liability for an owner of a dog already determined to be dangerous based upon a previous incident.  

 
Anyone wishing to review this decision may click this Link.

 
Source:  “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 15, 2016).


 


 

Monday, April 4, 2016

Link to Judge Nealon's Decision in Brink v. Malik Corrected

The Link to yesterday's reference to Lackawanna County Judge Terrence R. Nealon's discovery decision in the case of Brink v. Mallik has been corrected.  Here is the corrected LINK for your easy reference.

I apologize for any confusion.

Thank you.

GO NOVA!


General Rules of Discovery Reviewed by Judge Nealon of Lackawanna County


In his recent March 7, 2016 discovery decision in the case of Brink v. Mallik, No. 2013-CV-1314 (C.P. Lacka. Co. March 7, 2016 Nealon, J.), Judge Terrence R. Nealon addressed discovery issues in a wrongful death action alleging psychiatric malpractice that allegedly resulted in the suicide of the Plaintiff’s decedent while he was a patient in the Behavioral Health Unit at a hospital.  

Judge Terrence R. Nealon
Lackawanna County
 
Although this case involves a medical malpractice action, the discovery rulings issued by Judge Nealon in this detailed Opinion could apply generally in any civil litigation matter.  

At issue in this case was the discoverability of two (2) letters authored by an employee of the Defendant hospital and a separate “Notice of Determination” issued by the Pennsylvania Department of Labor and Industry, office of Unemployment Compensation Benefits with respect to that employee.   This matter came before Judge Nealon on an appeal from a decision by the discovery master (Henry Burke, Esquire) in the Lackawanna County Court of Common Pleas.  

In his decision, Judge Nealon provided a detailed analysis of the general rules for discovery applicable to any civil litigation matter.  

The issue arose when the Plaintiff filed a Motion to Compel personnel files of employees at Marian Community Hospital.  Following an in camera review of the pertinent personnel files, the discovery master concluded that certain materials were discoverable and other documents were “protected by the peer review privilege.”  

Among the record that the discovery master found discoverable included an employee’s letter of resignation from employment and an additional letter from the employee, as well as the “Notice of Determination” from Department of Labor and Industry.   According the Opinion, the letters authored by the employee related, in  part, to her difficulties with working with a particular per diem co-worker in the Behavior Health Unit along with other issues.   The Notice of Determination document pertained to that employee’s recovery of benefits under the unemployment compensation law.  

The hospital contended that these documents were not relevant, and therefore, no discoverable to the underlying issues presented in the case.   More specifically, the hospital maintained that the documents at issue did not suggest in any way that the employee’s health impeded her ability to perform her job.   The hospital argued that the request for these documents were simply a fishing expedition aimed at obtaining confidential information from a former hospital employee in the hopes that the documents may contain information useful to the Plaintiff’s case.  

In response, Plaintiff noted the involvement of the employee with the initial intake and assessment to the decedent shortly before the subject incident.   The Plaintiff also noted that, immediately following the incident, the hospital was subjected to an unannounced Complaint investigation conducted by the Pennsylvania Department of Health and that the employee at issue resigned within a month of that investigation.   In the alternative, the Plaintiff also asserted that the records may reveal that the employee was suffering from a physical or mental illness that impeded her ability to provide proper care and that the documents may also disclose what knowledge the hospital had regarding that alleged condition.  

Judge Nealon reviewed the issues under the general rules of civil procedure pertaining to discovery found at 4003.1 et. seq.   The court noted the important principle that the relevant standard applicable to “[t]he relevant standard applicable to discovery is broader and more flexible than the relevant standard used at trial for the admission of evidence.”   See Op. at 7 [citations omitted].

Judge Nealon also noted that, under Pa. R.C.P. 4012(a), the trial court was granted broad authority to direct the terms and conditions of allowable discovery.   Judge Nealon utilized this rule to order the parties to conduct additional discovery with respect to issues related to the documents in question and to come back before the court at a later time with that discovery to assist the court in rendering its overall decision as to whether or these documents would prove to be discoverable under the Pennsylvania Rules of Civil Procedure.    

A copy of this Opinion can be viewed at this LINK.
 

Friday, April 1, 2016

Claims Reps Mental Impressions, Conclusions and Opinions Protected from Discovery in Dauphin County Post-Koken Decision

 
The Dauphin County Court of Common Pleas recently handed down a discovery decision in the Post-Koken case of Castellano v. Erie Insurance Exchange, No. 2014-CV-9647 (C.P. Dauph. Co. March 23, 2016, Bratton,  J.).

In this case, the Plaintiff sought discovery of unredacted claim notes including the adjuster’s mental impressions, conclusions, evaluations, opinions and strategy.  The Plaintiff argued that she was entitled to know how the insurance carrier “evaluated” her UIM claim.

After reviewing briefs from both parties, hearing argument on the issue and studying the proposed redactions by Erie Insurance in an in camera review, Judge Bruce Bratton issued an Order without Opinion found that the redactions were appropriate and prevented the plaintiff from discovering any additional unredacted claim notes.

Anyone wishing to secure a copy of this Order may contact me at dancummins@comcast.net.

I send thanks to Attorney John Statler of the Lemoyne, PA law office of Johnson, Duffie, Stewart & Weidner for bringing this case to my attention.

Deposition of a UIM Claims Rep in a Luzerne County Post-Koken Case Allowed

The Luzerne County Court of Common Pleas
 
In his recent March 9, 2016 Order without opinion in the case of Cairl v. Chiogna and Nationwide, No. 2015-CV-08159 (C.P. Luz. Co. March 9, 2016 Burke, J.), Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas granted a Plaintiff's motion to compel the deposition of a UIM carrier's claims representative in a Post-Koken case.  The court did circumscribe the parameters of the deposition in the Order by noting, for example, that the Plaintiff could not inquire into privileged areas such as the mental impressions, conclusions or opinions of the representative regarding the merit or value of a claim or defense.

Anyone wishing to review a copy of this Order may contact me at dancummins@comcast.net.

I send thanks to Attorney Neil O'Donnell of the O'Donnell Law Offices for bringing this decision to my attention.

Commentary:   This decision of Judge Burke is notable in that Judge Burke had twice previously denied Motions to Compel Depositions of Claims Representatives in context of post-Koken cases by Order only.   See e.g. Garret v. Griffin, No. 17274-Civil-2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.); Krzynefski v. Bish, No. 16643-Civil-2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.).  

Also, there are other Luzerne County Court of Common Pleas decisions allowing for claims representative depositions in post-Koken matters, including a decision by Judge William H. Amesbury in the case of Paulewicz v. State Farm, No. 10655-Civil-2009 (C.P. Luz. Co. Feb. 1, 2010 Amesbury, J.), as well as the decision of Boyle v. Progressive, No. 8815-Civil-2014 (C.P. Luz. Co. Nov. 3, 2015 Amesbury, J.).