Thursday, March 30, 2017

Party May Not Substitute Another Party in a Reissued Writ of Summons Without Consent of Opposing Parties or Leave of Court

In his recent decision in the case of Estate of Marsh v. Lizza, No. 2016-CV-2812 (C.P. Lacka. Co. March 1, 2017 Nealon, J.), Judge Terrance R. Nealon of the Lackawanna County Court of Common Pleas addressed a Plaintiff’s attempt to substitute another party in a reissued Writ of Summons without the consent of the opposing parties or the court.

According to the Opinion, the Plaintiff commenced this wrongful death and survival action against her sister alleging negligent conduct which allegedly caused their mother’s death on July 28, 2013.  

The initial Writ of Summons and the three (3) ensuing reissued Writs of Summons identified the mother’s estate as the named Plaintiff.   Without securing the Defendant’s consent or seeking leave of court, the Plaintiff changed the identity of the named Plaintiff sua sponte on the fourth reissued Writ by substituting himself individually for his mother’s estate.

The Defendant-sister filed Preliminary Objections asserting that a party cannot substitute a different party as the Plaintiff under Pa. R.C.P. 1033 without first obtaining the consent of all parties or leave of court.   The Plaintiff’s sister sought to strike the amended Writ of Summons that was served upon her as well as the Complaint that was subsequently filed.

In reply, the Plaintiff contended that the acceptance and filing of the amended Writ of Summons by the Lackawanna County Clerk of Judicial Records constituted approval by the court under Rule 1033.   The Plaintiff also asserted that the Complaint could substitute a new Plaintiff without the Defendant’s consent or leave of court since the two (2) year statute of limitation period had not yet expired due to the operation of the “discovery rule” which allegedly extended that limitation.  

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon rejected the Plaintiff’s contention and sustained the Defendant’s Preliminary Objections.   In so ruling, the court noted that the Clerk of Judicial Records serves a purely ministerial, administrative role with respect to civil filings and lack the authority to evaluate the merits of a litigant’s pleadings or to decline to accept and process a party’s filing.   Since the Clerk of Judicial Records did not possess or exercise any judicial powers, the court found that the Clerk did not have any authority under any statute or rule of court to grant leave of court to amend the pleadings under Rule 1033 in order to substitute a different named Plaintiff.  

Judge Nealon also ruled that, inasmuch as the two (2) year statute of limitations applicable to wrongful death and survival actions under 42 Pa. C.S.A. §5524(2) may not be extended by the discovery rule, the Plaintiff’s Complaint was filed after the two (2) year statute of limitations had expired such that the Plaintiff was not at liberty to substitute a new party in that pleading absent the consent of all parties or leave of court.  

Accordingly, the court ruled that the amended Writ of Summons and the Complaint filed in this case were both nullities for substituting a different party and, therefore, the Defendant’s Preliminary Objections seeking to strike those pleadings was sustained.  

Anyone wishing to read this Opinion by Judge Nealon may click this LINK.

UPDATE:  Judge Nealon's decision was affirmed by the Pennsylvania Superior Court on February 3, 2018 in a Non-Precedential Decision that can be viewed HERE.

Statute of Limitations Bars Claim Where Plaintiff Sued Wrong Defendant

In a recent non-precedential decision in the case of Adams v. Reese, No. 927 WDA 2016 (Pa. Super. March 7, 2017 Bowes, Olson, and Strassburger, J.J.), the Pennsylvania Superior Court affirmed the entry of summary judgment in favor of a Defendant in a motor vehicle accident matter in which the Plaintiff sued the wrong person as the alleged Defendant driver.  

According to the Opinion, this matter arose out of a motor vehicle accident during which the Defendant’s vehicle was driven by the Reeses’ son, Dane M. Reese.  However, when the Plaintiff’s filed a Complaint, they named as Defendants, David A. Reese (the father) and Karen C. Reese (the mother).   The Complaint stated that David (the father) was the driver and that both David and Karen were negligent in the operation/ownership of the vehicle.  

The Defendants filed an Answer and New Matter asserting that David was not the operator of the vehicle; rather it was the son, Dane, who was not named as a Defendant, who was driving the vehicle at the time of the accident.  

Thereafter, the Plaintiffs filed a Motion to Amend the Complaint pursuant to Pa. R.C.P. 1033.  In their motion, the Plaintiffs alleged that a “typographical error” had mistakenly listed the wrong first name of the driver of the vehicle.   The defense opposed this  motion, asserting that the Plaintiffs were prohibited from amending their Complaint to add a new party after the expiration of the statute of limitations.   This Motion to Amend filed by the Plaintiff was denied by the trial court.

Thereafter, the Defendants filed a Motion for Summary Judgment, which was granted.   This entry of summary judgment was appealed in this non-precedential decision in the Pennsylvania Superior Court.

Citing to the prior precedential case of Saracina v. Cotoia, 208 A.2d 764, 766 (Pa. 1965), the Adams court noted that the Plaintiff listed a completely different person as a Defendant and, therefore, allowing the Complaint to be amended after the statute of limitations had run, would be permitting the Plaintiff to add a new and distinct party beyond the statute of limitations in contravention to Pennsylvania case law.  

The Superior Court stated that, although they were cognizant that the allegations set forth in the Complaint suggested that the Plaintiff did intend to sue the son, i.e., the operator of the vehicle, and not the father, the court in Adams, citing Saracina, 208 A.2d at 766, stated that the case law was clear that, under these very circumstances, an amendment is not permitted.

As such, the court in Adams affirmed the trial court’s entry of summary judgment on the basis of the statute of limitations defense.  

Anyone wishing to review this non-precedential decision by the Superior Court in Adams may click this LINK.

I send thanks to Attorney Paul Oven of the Moosic, Pennsylvania office of Dougherty, Leventhal & Price for bringing this case to my attention.

Tuesday, March 28, 2017

ARTICLE: The 'Mudano' Rule: Conflicting Expert Opinions Often Prove Fatal

The below article of mine appeared in the March 21, 2017 edition of the Pennsylvania Law Weekly and is republished here with permission:
The 'Mudano' Rule: Conflicting Expert Opinions Often Prove Fatal


Daniel E. Cummins, Pennsylvania Law Weekly

March 21, 2017

A plaintiff's personal injury case can go off the rails when the plaintiff's medical experts offer opinions that conflict with one another. This may typically arise where one expert for the plaintiff opines that a particular injury was caused by the subject accident and yet another expert questions whether the injury is indeed related.

Under Pennsylvania Rule of Evidence 702, titled "Testimony by Expert Witnesses," it is provided, that "a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion" if the expert's specialized knowledge is beyond that of a layperson and such knowledge will assist the jury to understand the evidence or determine a fact in issue.

Generally speaking, the admissibility of expert opinion is a matter left largely within the broad discretion of the trial court, as in Bolus v. United Penn Bank, 525 A.2d 1215, 1225 (Pa.Super. 1987).

Where a plaintiff's experts conflict with one another, the plaintiff is likely to be faced with a defense motion in limine seeking to preclude each expert's opinion on the basis that allowing such evidence would only serve to confuse, and not educate, the jury.

Notably, in the separate scenario where the defense produces conflicting expert reports in a civil litigation matter, the defense may still be permitted to proceed with the expert testimony as the defense does not bear the burden of proof at trial. The remedy for the plaintiff in this regard is to point out to the jury the conflicting nature of the opinions of the defense experts in an effort to discredit the defense.

The 'Mudano' Rule

Under what has become known as the Mudano rule, the Pennsylvania Supreme Court in Mudano v. Philadelphia Rapid Transit, 289 Pa. 51, 60, 137 A. 104, 107 (1927), has held that the testimony of a plaintiff's medical experts must be reasonably consistent with one another such that, with respect to the plaintiff's experts, "there must be no absolute contradiction in their essential conclusions." The court further stated that a plaintiff has a "duty to furnish consistent, and not inconsistent, advice—otherwise the jury would be confused rather than instructed."

The Pennsylvania Supreme Court reiterated the Mudano rule in case of Brannan v. Lankenau Hospital, 417 A.2d 196 (Pa. 1980). In Brannan, the court cited Mudano for the proposition "that a plaintiff's case will fail when the testimony of his two expert witnesses is so contradictory that the jury is left with no guidance on the issue, see also Menarde v. Philadelphia Transportation, 103 A.2d 681 (Pa. 1954) (The Pennsylvania Supreme Court applies Mudano rule to the plaintiff's expert reports); see also Halper v. Jewish Family and Children Services of Great of Philadelphia, 963 A.2d 1282, 1287 (Pa. 2009) (The Pennsylvania Supreme Court applies the Mudano rule to the plaintiff's expert reports).

Even if a plaintiff attempts to supplement his discovery responses to only identify one of the two conflicting as the only expert the plaintiff will call at trial, the Mudano rule will be implicated when the defense cross-examines the plaintiff's expert with respect to the separate, contradictory opinion of the plaintiff's other expert.

In such a case, the jury would still be faced with conflicting opinions by two experts from the plaintiff's side of the matter, i.e., the very situation that the Mudano rule holds will cause the plaintiff's case to fail. The defense argument will be that the plaintiff should not be allowed to put the court, the parties, the attorneys and the jurors through the time and expense of the trial by simply choosing to identify one expert and ignoring the contradictory opinions of his or her other expert. Such evidentiary gamesmanship should not be countenanced by the courts where the purpose of a civil trial is get to the truth of the claims and defenses asserted.

Not Applicable to Defense

The courts of Pennsylvania have rejected attempts by plaintiffs to have the Mudano rule applied to defense experts that conflict with one another. The courts have reasoned that the rule should not apply to the defense case because the defense does not bear the burden of proof at trial.

Plaintiffs may cite to the case of Smith v. German, 253 A.2d 107 (Pa. 1959), in support of an argument that the defense must produce consistent evidence in an effort to disprove causation between an accident and a plaintiff's alleged injuries.

However such an argument has been rejected by more recent Pennsylvania appellate court decisions. In Kennedy v. Sell, 816 A.2d 1153, 1159 (Pa. Super. 2003), the Pennsylvania Superior Court stated that its "research indicates that Smith has never been cited in subsequent cases for the proposition that in all cases where a defendant challenges the causation element of a plaintiff's case, that he must produce independent evidence of his own. In fact, we can find no case citing to Smith that applies the case to the defendant. In large part, Smith, as it may apply to a defendant, appears to be an anomaly limited to the facts of that case."

Rather, in personal injury matters, the defense has no burden of proof on the issue of causation and, therefore, the Mudano is inapplicable to the defense evidence. As emphasized by the Pennsylvania Superior Court in the Kennedy case, when there is some evidence of other causes of a plaintiff's alleged injuries, the burden of proving these other causes does not shift to the defense. To the contrary, as confirmed by the Kennedy court, absent special circumstances, a defendant carries no burden of proof in a civil litigation matter.

Stated otherwise, "a defendant may choose to present no evidence and may simply argue that the plaintiff has not met its burden of proof. A jury may find for the defendant in such a situation." The Kennedy court also pointed out that the Smith decision "does not require a defendant ... to present independent medical testimony specifically linking the alleged injuries to another cause."

Moreover, it has otherwise generally been held as a principle of Pennsylvania law that an opinion offered by the party, i.e., the defendant, not having the burden of proof need not be as precise as an opinion offered by the party with the burden of proof, as in Neal v. Lu, 530 A.2d 103, 109-110 (Pa. Super. 1987).

It Comes Down to Sufficiency of Expert Evidence

It has generally been held by the courts of Pennsylvania that the effect of a conflict between the testimony of different experts called by a party is in reality a question of the sufficiency of the evidence.

In the case of conflicting expert opinions presented by a defendant not having the burden of proof, the courts will allow the issue to proceed to the jury for the jury's consideration as to what weight to be applied to such contradictory evidence.

However, conflicting expert opinions on the plaintiff's side of the case will often prove fatal. Such evidence fails to satisfy the plaintiff's burden of proof, renders the plaintiff's case speculative and, if the case were allowed to proceed to verdict, would cause the jury to engage in impermissible guesswork on the important issues presented in the case.

Accordingly, where a plaintiff's experts conflict with one another, the courts will likely preclude such experts under the Mudano rule and then proceed to enter a nonsuit in favor of the defense due to the plaintiff's failure to meet his or her burden of proof on the case presented. •

Special to the Law Weekly 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

Monday, March 27, 2017

No Fiduciary Duty Owed to Insured By Carrier in UM/UIM Context

In a recent decision in the case of Meyers v. Protective Ins. Co., No. 16-1821 (M.D. Pa. Jan. 27, 2017 Caputo, J.), Judge A. Richard Caputo of the Federal Middle District Court of Pennsylvania struck all references in the Plaintiff’s post-Koken Complaint to allegations of a breach of a fiduciary duty. 

The court ruled that, “Under Pennsylvania law, an insurer owes a duty of good faith and fair dealings toward their insureds.  It is well-established, however, that there is no fiduciary duty owed to an insured in the context of an underinsured/uninsured motorist benefits” claim.  

The court also dismissed the Plaintiff’s bad faith claims.   The court found that the allegations of failure to communicate and ignoring communications were unsupported in the Complaint.   Judge Caputo also noted that there was no evidence to support allegations that the carrier had not fairly and objectively evaluated the claim, or that the settlement offer was so inadequate as to constitute bad faith.   

Judge A. Richard Caputo
M.D. Pa.
Judge Caputo additionally noted that there was no evidence to support an allegation of the carrier’s request for four (4) medical examinations was made in bad faith.

Although the bad faith claims were dismissed, the Plaintiff was granted leave to amend if sufficient supporting facts could be pled.  

Anyone wishing to review this case online, may click this LINK.

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman Krekstein & Harris.   Be sure to check out Attorney Applebaum’s Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog HERE.


Monday, March 20, 2017

Eastern District Federal Court Declines to Exercise Jurisdiction Over Sackett Issue That Is Currently Pending Before PA Supreme Court

In the case of Bransfield v. New Jersey Manufacturers Ins. Co., 2017 WL 714036 (E.D. Pa. 2/23/2017) (mem.), the Eastern Federal District Court declined to exercise jurisdiction over an unsettled Sackett-type issue and remanded the case back to state court for a decision.

In Bransfield, the Plaintiffs filed declaratory judgment action in state court asserting that the insurer owed stacked UIM coverage because when the insured/owner added a vehicle to her single-vehicle auto policy, her insurer was required to obtain new UIM coverage forms and new UIM stacking rejection forms.  According to the Opinion, the insured had rejected UM/UIM and stacking prior to the addition of the second vehicle.

The Plaintiff asserted that since the insurer did not secure new UIM coverage forms or new UIM stacking rejection forms, the Plaintiff should be entitled to stacked UIM coverage.

The Bransfield court declined to exercise jurisdiction after finding that, if it did, the court would need to make a threshold determination on an unsettled question of whether the MVFRL requires new UIM rejection forms when new vehicles are added to a policy. 

The court noted that it would have to predict whether stacked UIM is available pursuant to Sackett, which the court noted was an issue before the Pennsylvania Supreme Court in Toner v. The Travelers Home and Marine Ins. Co., 137 A.3d 583(Pa. Super. 2016), appeal granted No. 29 WAP 2016 (Pa. Sept. 8, 2016).  Part of the reason the Bransfield court declined to decide the issue was to avoid a scenario where its decision could end up conflicting with how the Pennsylvania Supreme Court may ultimately rule upon the issue in Toner.

Ultimately, the Branfield court denied the carrier’s request to reconsider the court’s prior Order remanding the matter back to state court.

Anyone wishing to review this unpublished memorandum opinion in Bransfield may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.

UPDATE:  The Toner case refernced above settled just before the Pennsylvania Supreme Court was set to address the stacking issues raised therein.  As such, the Pennsylvania Superior Court's decision in the matter stands.

Friday, March 17, 2017

ARTICLE: A St. Patrick's Day Parade of Proverbs

Here's a "replay" of a previous article of mine in the spirit of St. Patrick's Day:


Daniel E. Cummins

Pennsylvania Law Weekly
March 10, 2008

With the St. Patrick’s Day celebration of all things Irish many famous Irish proverbs come to mind. As the Irish have noted, “Proverbs can not be contradicted.” Applying Irish proverbs to the practice of law can be enlightening for as Irish playwright John Millington Synge once noted, “There is no language like the Irish for soothing and quieting.”

A closed mouth—a wise head.

Although the Irish are known for the gift of gab, they also recognize that sometimes, the less said the better. This can be seen in the practice of law in judicial opinions where judges write concisely in an effort to streamline their opinion on the issues presented and avoid the possibility of inadvertently raising appellate issues.

Litigators may benefit from speaking concisely when addressing the court or a jury. Another Irish instruction is to “Say little, but say it well.” For example, it is often recommended that trial counsel keep objections to a minimum so as not to irk the trial judge or appear as if one is attempting to hide something of importance from a jury. As the Irish also say, “A silent mouth never did any harm.”

Conversely, another wise Irish proverb is that “A loud voice can make even the truth sound foolish.” Bombastic and arrogant presentations by attorneys cause the immediate perception that what is being said is either devoid of merit or, at best, suspect. Efforts at tempering one’s argument in accordance with the applicable law and avoiding personal attacks on opposing counsel will only serve to add credibility to the position being advocated.

A good beginning is half the work.

Whether it be the first words spoken to a judge or jury or the opening sentences of a brief, the beginning of one’s presentation can make or break a case. Overworked judges reading hundreds of briefs and bored jurors will appreciate the fresh notion of arguments that quickly get to the point and remain there.

In terms of oral presentation to a judge or jury, first impressions last forever. The crux of an argument or the theory of the case should comprise the first words out of an attorney’s mouth. A concise description of the dispute presented and why fairness dictates a ruling in favor of one’s client should be forcefully advocated from the get-go.

With brief writing, the typical generic opening paragraphs providing a boring statement of the facts should be eschewed in favor of a more pointed story comprised of the impact facts crucial to the issue presented followed by a concise recitation of the reasons why the court should rule in one’s client’s favor.

The goal of the initial paragraphs of a brief should be to grab the attention of the reader and direct it immediately to the position advocated. Simply put, interesting writing is persuasive writing.

If a rogue deceives me once, shame on him.
If he deceives me twice, shame on me.

Unfortunately, at various times in one’s practice, attorneys have to deal with another attorney that, to use the Irish vernacular, can be described no better terms than as a scoundrel.

When dealing with such attorneys for the first time, one may make a mistake or let their guard down providing an opportunity for the other attorney to take an untoward advantage in the case. But as Irish novelist James Joyce once noted, “Mistakes are the portals of discovery.” Once it is discovered through a mistake that opposing counsel can not be trusted to play by the rules or act with professional courtesy, one can take steps to prevent the situation from occurring again.

It is unfortunate that attorneys can not always rely upon the courts for relief from vexatious and dilatory tactics of a recalcitrant opposing counsel. While such weasel-like attorneys may treat opposing counsel in a reprehensible fashion, they are usually wise enough to appear before the court in the character of Eddie Haskell, the bully from the old Leave It To Beaver television show, who always took on an oily obsequious manner whenever faced with an authority figure in order to stay out of trouble.

Judges have to be even-handed when dealing with such disputes and may not always be in a position to properly address the tactics of such an opposing counsel. One should rest assured, however, that these types of attorneys routinely appear before the court on repetitive and petty issues such that their reputation for vexatiousness becomes engrained and, hopefully acknowledged and punished.

What this Irish proverb suggests is that an attorney should keep negative tactics of a particular opposing counsel in the memory bank and share such information with other attorneys so as to limit the ability of the attorney to engage in improper or unnecessary behavior.

As sung by legendary Irish rocker Bono of U2 in the song “Acrobat,” “Don’t let the bastards grind you down.”

Remember, even if you lose all, keep your good name,
for if you lose that, you are worthless

An oft indicated principle or truth is that an attorney’s word is his bond. The Irish also proverbially quip that “A promise is a debt.” Developing a reputation for being good for one’s word and keeping promises is a virtue that can carry an attorney through his career above all else in terms of relations with the court and opposing counsel.

Without a doubt, a lawyer’s reputation precedes his interactions with all in the practice. When picking up new files, lawyers will typically first look to see who is on the other side and if that person is unknown, efforts will be made to ascertain the reputation of that attorney and how he or she handles cases.

Day in and day out, thoroughness and integrity in preparation and presentation along with punctuality and professional courtesy are the important building blocks of a solid reputation in the practice of law. Adherence to these positive characteristics will not only serve to enhance one’s stature among fellow members of the bar and the judiciary but may also allow one to secure an even more favorable result for one’s client.

If you lie down with dogs, you’ll rise with fleas.

Poor cases are often referred to in the practice as “dogs.” In developing one’s practice, while it may be understandable that an attorney may take on a few cases having difficult liability hurdles or questionable damages, it may be wise for counsel to avoid a proliferation of these cases such that one’s office turns into a dog pound.

Taking on too many troublesome cases can affect one’s reputation and the fleas from the dog cases might not only leech onto the attorney but may even possibly carry over and affect the value of the other more profitable cases in the office. As the great Irish poet William Butler Yeats once wrote, “But was there ever dog that praised his fleas.”

Accordingly, care should be taken in accepting new clients As the Irish also say, “If you put a silk dress on a goat, he is still a goat.” In other words, even the best of attorneys may not have the skills to put the shine on a tarnished case of little or no value. Attorneys may be wise to protect their reputations by refusing such cases in the first instance, or at the very least, referring them out for others to handle.

Never put off til tomorrow what you can do today.

As a catalyst for unnecessary stress, procrastination may be the worse enemy of an attorney. By continually putting off job tasks until the last moment, attorneys may be forced to scramble to complete a work product, such as a brief, and the end result is usually sub-par.

In keeping with the best possible service the client is entitled to by virtue of their entrusting their cause to an attorney, the better practice may be to look ahead to the following months deadlines and, wherever possible, immediately beginning the first drafts of any briefs, discovery requests or responses, or other written materials. In this manner, the work product can be started with sufficient time left to repeatedly revise the work product so as to strive to put out the best effort on behalf of the client.

If you dig a grave for others, you might fall into it yourself.

Stated otherwise, what goes around, comes around. The practice of law as a whole is better served by attorneys who assist one another and provide heads ups to one another of potential pitfalls.

The Rules of Professional Conduct, the Code of Civility and the PBA Working Rules of Professionalism are replete with instructions on professional courtesy. Periodic review of, and adherence to, these rules of professional conduct and courtesy can only serve to improve one’s reputation and benefit the practice as a whole.

Obviously, efforts should always be made to treat others with the respect, kindness and courtesy we would hope for in return. As the Irish also warn, “Be kind to those you meet as you rise, you may pass them again as you fall.”

A light heart lives long.

As overwhelming as the practice of law can be, with files and clients on one’s mind essentially 24 hours a day and seven days a week, it is important to attempt to maintain a balance between one’s work life and one’s life outside of work. The stress of the practice can weigh heavily on the heart over the years.

Directing all of one’s energy towards the practice of law and neglecting other aspects of life outside of the practice can quickly lead to a burnout or a disillusionment with the profession.

The great Irish dramatist George Bernard Shaw was once quoted as saying, “A day’s work is a day’s work, neither more nor less, and the man who does it needs a day’s sustenance, a night’s repose and due leisure, whether he be a painter or ploughman.”

Periodically getting away from the practice of law by vacationing or otherwise for periods of rejuvenation and a rediscovery of one’s sense of self and personal interests will inevitably make life more enjoyable and provide for a fuller existence. An attorney with a more balanced life may have a better physical and mental status and thereby be in a position to better serve his or her clients.

As this old Irish proverb proves, quality time spent with family, reconnecting with old friends, exercising, or engaging in long lost hobbies may not only add life to one’s years but also years to one’s life. May you live as long as you want, and never want as long as you live.

Daniel E. Cummins, Esquire is a partner with the Scranton, Pennsylvania civil litigation firm of Foley, Comerford & Cummins. Attorney Cummins focuses his practice on insurance defense and coverage matters all across Northeastern Pennsylvania.

This article is reprinted here, with permission, from the March 10, 2008 issue of the Pennsylvania Law Weekly (c) 2008 Incisive Media US Properties, LLC, now known as American Law Media. The title of the article in the Pennsylvania Law Weekly was "A Parade of Proverbs." Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

Source of image:

Thursday, March 16, 2017

Pennsylvania Superior Court Addresses Waiver Form and Assumption of Risk Defense in Context of College Football Injuries

In its recent decision in the case of Feleccia v. Lackawanna College, No. 2017 Pa.Super. 44 (Pa.Super. Feb. 24, 2017 Ford Elliott, P.J.E., Shogan, J., and Stevens, P.J.E.)(Op. by Shogan, J.), the Pennsylvania Superior Court 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.

The Superior Court reversed the trial court's entry of summary judgment.  With regards to the waiver form, the appellate court found that issues of fact precluded the entry of summary judgment.  The court noted, in part, that issues of fact on whether the defendants had acted with gross negligence or recklessly under the case presented raised a question of whether the waiver form was sufficient to preclude a finding of liability against the defendants.

The appellate court also recognized the continuing validity of the assumption of risk defense under Pennsylvania law but found that issues of fact precluded the entry of summary judgment under that doctrine as well.

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

I send thanks to Attorney Andrew Motel for bringing this decision to my attention. 

Wednesday, March 15, 2017

Blair County Court of Common Pleas Rules to Sever and Stay Post-Koken Bad Faith Claim

In a recent trial court decision out of the Court of Common Pleas of Blair County in the case of Raia v. Agency Insurance Company of Maryland, Inc., No. 2015- GN-3456 (C.P. Blair Co. Feb. 28, 2017 Doyle, P.J.), the court sustained an insurance company’s Preliminary Objections in a post-Koken matter seeking the severance of the bad faith claim from the breach of contract claim. The court also agreed to stay discovery in the bad faith portion to the case. 

In her Opinion, President Judge Doyle noted that the Koken v. Reliance Ins. Corp., 891 A.2d 704 (Pa. 2005) decision, in which the Pennsylvania Supreme Court held that uninsured and underinsured motorist claims may be presented in the Court of Common Pleas, “has created uncertainty on how to conduct civil actions which involve a claim on a plaintiff’s uninsured or underinsured motorist coverage as well as a claim for bad faith on the part of the insurance company."  

The Raia court also noted that this “uncertainty is further exacerbated through the lack of guidance from the appellate courts, resulting in split authority among the Common Pleas Courts and the Federal District Courts.” 

Generally reviewing decisions from around Commonwealth of Pennsylvania, this court in Raia noted that “the rulings from the State and Federal courts have run the gamut, State courts are much more willing to sever and stay proceedings in some form or fashion, while Federal courts tend to deny these motions and keep the matters consolidated.   However, this is not a hard and fast observation, and judges, both State and Federal, have come out on different sides of this issue.”  

This issue of severing and staying the bad faith portion of a Post-Koken matter appeared to be a case of first impression within Blair County.  

In this decision, the court agreed that there is a potential for substantial prejudice to the insurance company in trying both the UIM and bad faith claim in front of the same jury.  

The court found that it would be difficult to for an average jury, after having listened to issues relating to the bad faith claim and the UIM claim, to disregard evidence presented for the bad faith claim when deciding the UIM claim.   This court felt that, in reality, such evidence would play in the minds of a jury and would likely influence their verdict, even if a limiting jury instruction was provided by the court.  

Accordingly, the court in Raia found that the potential prejudice in trying a UIM claim and a bad faith claim together warranted the severing of the two (2) claims.  

As for the decision to stay discovery on the bad faith claim, this court noted that allowing discovery to proceed on the bad faith claim, would permit the Plaintiff to discover material not relevant to a straightforward UIM claim.  

The court also noted that staying discovery would keep both parties on an equal footing with respect to the UIM claim until the UIM litigation is concluded.  

As such, the court stayed discovery on the bad faith claim until the conclusion of the UIM litigation.  

The court also noted that the interests of judicial economy favored this decision to stay the bad faith claim as UIM discovery was fast, fairly routine, and generally without contention as opposed to the typically contentious nature of bad faith discovery which would serve to slow down and prolong the litigation as the parties file and argue multiple discovery motions.  

Anyone wishing to read this case online may click this LINK.

I send thanks to the prevailing defense attorneys, John W. Croumer and Attorney Paul Grego of the Lancaster, Pennsylvania office of Post & Schell, P.C. for bringing this decision to my attention.  

Tuesday, March 14, 2017

Summary Judgment Denied in Missing Stop Sign Case

In a recent trial court decision in the case of Tesla v. Neshanock Twp., No. 10647 of 2013, C.A. (C.P. Lawrence Co. Jan. 19, 2017 Motto, J.), the court found that a township was not entitled to summary judgment in an auto accident case where the township was found to have had constructive notice that a stop sign was missing prior to the time the accident occurred.  
According to the Opinion, due to the missing stop sign, a vehicle did not stop at the intersection, resulting in the Plaintiff’s vehicle being broadsided in the course of an automobile accident. 
The Plaintiff filed suit, in part, against the township, alleging that the township was negligent in failing to adequate inspect its traffic signs, failing to reinstall or replace the stop sign, failing to position the stop sign so that it would not be knocked down, and failing to install adequate lighting at the intersection.  
When the township claimed sovereign immunity, the Plaintiffs asserted that this case fell under an exception to that immunity law which exception applies if the government entity had actual or constructive notice of the alleged defect.  
According to the court's opinion, there was evidence in this case that the investigating police officer told the Plaintiff’s daughter at the scene of the accident that the stop sign had been missing because it had been knocked over by a truck earlier in the day, that this was a dangerous intersection, and that the police officer regularly patrolled the area.  The court found that the police officer was an agent of the township and, as such, his statements will be admissible.  
The court also found that, once the township had knowledge of the missing stop sign, the need to take steps to protect against this dangerous condition was immediate.   The dangers brought on by a missing stop sign due to the possibility that a driver would not be aware that the intersection was previously controlled by a stop sign was so great that the intersection needed to be protected immediately.  
There was also evidence presented in this case that the missing stop sign was a reoccurring situation at this particular intersection as it was a tight turn for trucks, which had caused multiple vehicles to knock over the stop sign previously. 
In light of all of these findings, including the finding that this was a busy intersection and that the stop sign had been down for a number of hours before the accident, the court found that there was sufficient evidence from which a jury could find that the township had constructive notice of the defect.  Accordingly, the township’s Motion for Summary Judgment was denied.    

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


Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (February 14, 2017).

Friday, March 10, 2017

Congratulations to the Abington Heights High School Mock Trial Team On Advancing to the State Championships

Proudly congratulating the Abington Heights High School Mock Trial Team for winning both the District 1 Championship and then winning the Region 10 Championship last night which allows them to advance onto the State Championships set to take place in Harrisburg, PA on March 24-25, 2017.

During the competition, student teams present and argue both sides of a trial in an actual courtroom before a judge.  In some years the case involves a criminal trial and in other years the case is a civil trial.  The students, who play the roles of lawyers, witnesses, expert witnesses, plaintiffs and defendants, are assisted by teacher coaches and lawyer advisors in preparing for competition. Lawyers and community leaders serve as jurors for the mock trials. The juries determine the winners in each trial based on scoring of the teams' abilities to prepare their cases, present arguments, and follow court rules and procedures.

The Abington Heights High School's Teacher Advisor is Len Romanski, a social studies teacher at the school.  Along with Julie Zaleski, Esquire, Tom Specht, Esquire, Claire Czaykowski, Esquire, I served as one of the Attorney Advisors for the team and highly recommend that others look for local high school teams to assist them in preparing their cases for next year's Mock Trial Competition (teams typically begin practicing near the end of the calendar year for the competitions that start in February every year). 

Serving as an Attorney Advisor is a truly rewarding experience and a great way to give back to the community and to generate good will for the legal profession.  You will likely also find that you learn a thing or two from these young attorneys in terms of coherent, concise case presentation.

Another way to assist the Mock Trial program is to volunteer your time to serve as a juror at one of the trials.  The teams advance based upon their scoring as determined by attorneys who sit on the jury and who evaluate the attorneys on their Opening Statements, Direct Examination, Cross-Examination, handling of objections, and their Closing Arguments.  The student-witnesses are also judged by the jury in terms of their performances as well.  The Mock Trials typically run approximately two hours and so the time commitment is minimal but the rewarding feeling of helping out the program is great.

As stated, encouraging and mentoring potential future lawyers through the Mock Trial program is a great way to pass down the traditions of our profession to the next generation.



As we start to move towards Spring, look ahead several months on your calendar and schedule some time off for yourself later while the coast is clear.

Scheduling vacations, or at least a few long weekends here or there, helps to rejuvenate one’s self and,thereafter, increase productivity.

Although a lawyer can never completely get away from the practice of law, pushing it to the back burner for a day, or several days, and focusing on the other, more important and/or enjoyable aspects of your life can result in your being refreshed upon your return to work.

Wednesday, March 8, 2017

Judge Brann of Middle District Addresses Viability of Claims of Recklessness and Punitive Damages

In a recent decision in the case of Wilson v. TA Operating, LLC, 4:14-CV-00771 (M.D. Pa. Feb. 13, 2017 Brann, J.), Judge Matthew W. Brann of the Middle District Federal Court of Pennsylvania denied a Partial Motion for Summary Judgment and held that allegations of negligent automobile repairs can rise to the level of recklessness required to support a claim for punitive damages.  

The court found that genuine issues of material fact and evidence concerning mechanic training and supervision serve to defeat the Motion for Summary Judgment.

The court also ruled that a principal, such as an employer, can be held vicariously liable for punitive damages if the actions of its agent, or employee, in the course of employment were reckless.   A ratification or direction of the acts by the principal, or employer, is not required for this finding of vicarious liability.  

Here is a LINK to the Court's Order.  Here is a LINK to the Court's supporting Opinion.

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


Monday, March 6, 2017

Superior Court Addresses Propriety of Worker's Compensation Carrier Suing Tortfeasor for Recovery of Lien

In the case of The Hartford Ins. Grp. v. Kamara, No. 976 EDA 2016 (Pa. Super. Feb. 10, 2017 Olson, Solano, Fitzgerald, JJ.)(Op. by Olson, J.), the court ruled that a a workers' compensation carrier could pursue claim against third-party tortfeasors by asserting the claim on behalf of the injured employee to establish the tortfeasors' liability to the injured employee, as opposed to bringing a subrogation claim.

The court rejected the argument by the defendants  that the Complaint should have been dismissed because appellant was attempting to assert subrogation directly against third-party tortfeasors in violation of the Workers' Compensation Act which provided that a right of action against tortfeasors remained in the injured employee such that an employer's/insurer's right of subrogation had to be achieved through an action brought in the name of the injured employee or joined by the injured employee.

The Superior Court held that the worker’s compensation carrier properly brought the action on behalf of the injured employee to establish the tortfeasors' liability to her. The Court reasoned that the Workers' Compensation Act did not require an injured employee to be party to a suit for an employer or insurer to be able to assert its subrogation rights, but merely required the suit to be brought on behalf of or in the name of the injured employee.

Anyone wishing to review this Opinion online may click HERE.


Source:  “Digests of Recent Opinions.” Pennsylvania Law Weekly (Feb. 28, 2017).

Saturday, March 4, 2017



A lot of attorneys glaze over the "Question Presented" section of a brief and, in doing so, miss an opportunity for the court to read their client's argument as set forth in a concise and forceful format that foreshadows the conclusion desired.
It is a waste to simply state in the "Question Presented" that the motion at issue should be granted or denied.

Always begin your "Question Presented" with a phrasing that suggests your position should carry the day. For example, for the movant, the "Question Presented" should be positively phrased as, "Whether the motion of the defendant, John Smith, to compel should be granted where..." and vice versa for the non-moving party.
Then, as concisely as possible, include in the "Question Presented" the pertinent facts of your case as applied to the rule of law in a manner that favors your position. 

In the end, the "Question Presented" should be a detailed statement of your legal position in a question format that suggestively asks whether your position should be accepted by the court. 

Also, take the language in your "Question Presented" and mirror it in the Conclusion section of your brief as very similar, but not identical, restatement of your ­client's position.  In other words, copy your Question Presented into your Conclusion section but change it from a question to a statement in favor of your position and polish it off with a specific statement of the relief requested.

Thursday, March 2, 2017

Allegations of Recklessness and Punitive Damages Claims Stricken from Run-of-the-Mill Auto Accident Case

In her recent decision in the case of Walker v. John H. Helsel Agency, No. 2016-CV-09969 (C.P. Luz. Co. Feb. 22, 2017 Polachek-Gartley, J.), Judge Tina Polachek-Gartley of the Luzerne County Court of Common Pleas sustained Preliminary Objections filed by a Defendant in the nature of a Motion to Strike punitive damages claims and allegations of reckless conduct in a Plaintiff’s Complaint filed in a motor vehicle accident matter.  

The Defendant asserted that the allegations contained in the Plaintiff’s Complaint pertained to a “run-of-the-mill” motor vehicle accident and did not rise to the level of outrageous conduct required under Pennsylvania law to support a claim for reckless conduct or punitive damages.  

After reviewing the current status of Pennsylvania law on punitive damages against the allegations of the Complaint, the court agreed and found a lack of facts to support of allegations of recklessness or reckless conduct as pled in the Complaint.  This matter involved an intersectional motor vehicle accident. 

The court sustained the Defendant’s Preliminary Objections and dismissed the Plaintiff’s punitive damages claims without prejudice.  The court noted that, if additional information was obtained during discovery to support such claims, the Plaintiff would be granted a right to include punitive damages at that time. 
The court otherwise denied other Preliminary Objections filed by the Defendant seeking the removal of allegations in the Complaint pertaining to information from the police report, traffic citations, and insurance coverage.

Anyone wishing to review this decision may click this LINK.

The defense counsel in this matter was Attorney Stephen T. Kopko of the Scranton, PA insurance defense law firm of Foley, Comerford & Cummins.

Wednesday, March 1, 2017

Pennsylvania Superior Court Affirms Preclusion of Portion of Expert Witness's Testimony in Auto Accident Case

In its non-precedential decision in the case of Lingham v. Faison, No. 530 EDA 2016 (Pa. Super. Jan. 11, 2017) (Mem. Op. by Shogan, J.), the Pennsylvania Superior Court ruled that a trial court properly precluded an expert medical witness’s opinion regarding the reasonableness and the necessity of a rhizotomy medical procedure where that expert lacked any particular knowledge of the procedure and could not otherwise identify the standard of care.   Judgment in favor of the defense was affirmed.  
This was a limited tort auto accident matter.  The above issue was raised during the videotaped deposition for trial of the Plaintiff's medical expert  

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


Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Jan. 31, 2017).