Wednesday, April 26, 2017

CORRECTED LINK For Post-Tincher Case Summarized in Yesterday's Post

Here's a LINK back to yesterday's Tort Talk Blog Post on the Pennsylvania Superior Court's recent non-precedential decision in the Post-Tincher case of Martinez v. American Honda Motor--I understand that the Link to the actual decision may not have been working and I have corrected it.

I apologize for any inconvenience.

Tuesday, April 25, 2017

Superior Court Addresses Post-Tincher Products Liability Issues (Non-Precedential)

In its recent decision in the case of Martinez v. American Honda Motor, No. 445 EDA 2015 (Pa. Super. April 19, 2017 Bender, P.J.E., Dubow, J., Musmanno, J.)(mem. op. by Dubow, J.), the Pennsylvania Superior Court affirmed a Plaintiff’s verdict against Honda Motors in a case that addresses the current status of the Pennsylvania products liability law in the Post-Tincher era.   

Unfortunately, the decision in this unchartered area of strict products liability law is inexplicably listed as "non-precedential."  

One of the issues addressed by the Superior Court was whether the Pennsylvania Supreme Court’s holding in Tincher overruled long-standing precedential decisions which barred evidence of compliance with federal and regulatory standards in products liability cases.   The court in this case of Martinez ruled that the Tincher decision did not overrule prior cases in this regard.  As such, the Pennsylvania Superior Court affirmed the trial court’s decision that such proposed evidence was inadmissible.  

Anyone wishing to review a copy of this non-precedential decision may click this LINK.

I send thanks to Attorney Paul Oven of the Moosic, Pennsylvania law firm of Dougherty, Leventhal & Price, as well as Attorney Bruce Zero of the Scranton, Pennsylvania office of Powell Law, for bringing this case to my attention. 

Centre County Court Confirms That Bad Faith Statute Does Not Apply to Carrier's Conduct in Litigation Process As a Legal Adversary

In the recent decision in the case of Hardy v. Erie Insurance Exchange, No. 2012-CV-2059 (C.P. Centre Co. March 7, 2017, Ruest, J.), the court addressed cross-motions for summary judgment in an automobile accident matter.   The case more specifically centered around property damage claims, medical expenses claims along with related bad faith claims.   The Plaintiff filed an action alleging breach of contract and bad faith.  

Of note, the court allowed the breach of contract action to go forward as genuine issues of material fact remained on that count.   However, the court granted summary judgment to the carrier on the Plaintiff’s claims for bad faith.  

In so ruling, the court noted that, an insurance company is not required to blindly pay each claim without investigation in order to avoid a bad faith lawsuit.  

While the Plaintiffs argued in this matter that the Defendant carrier acted in bad faith by failing to promptly and accurately investigate and handle the claim, the court found that the facts of record indicated that the carrier responded to the claim within a reasonable amount of time.   The court also found that the Defendant carrier was not liable for bad faith under the allegations of violations of the Unfair Insurance Practices Act.  

The court also rejected the Plaintiff’s claims for bad faith under 42 Pa. C.S.A. §8371 on the basis of the Defendant’s allegations during litigation.   The court noted that the appellate courts of Pennsylvania have declined to find that the broad language of §8371 covers a party’s action during discovery as a basis for a bad faith allegation.  

Rather, §8371 has been read by the Pennsylvania appellate courts to only allow for a remedy for bad faith conduct that alleged arises when a carrier is acting as an insurer, not actions by the carrier when acting as a legal adversary in the litigation process.  

Overall, the court granted summary judgment to the carrier on the bad faith claim.  

Anyone wishing to review this decision may click this LINK.

Monday, April 24, 2017

Opinion Addressing the Quantity Part of the Quantity/Quality Test for Proper Venue Against a Business Entity

In the case of Dildine v. Western Alliance Emergency Services, No. 2016-CV-2335 (C.P. Lacka. Co. April 19, 2017 Nealon, J.), the court addressed the "quantity" part of the quantity/quality test for determining whether a corporation regularly conducted business in a particular county for proper venue purposes.

In this case a Bradford County resident filed suit in Lackawanna County against a Bradford County ambulance driver and his Bradford County employer for injuries allegedly arising out of a Bradford County motor vehicle accident.

The Defendants file Preliminary Objections challenging venue.  In response, the Plaintiffs asserted that the Defendant employer regularly conducted business in Lackawanna County such that venue would be proper against all Defendants under the venue rules found at Pa.R.C.P. 1006 and 2179.

Judge Nealon cited to the precedent holding that, to support a finding that a business regularly conducted business in a particular county for venue purposes, the quantity of that entity's activities in the desired county must be "so continuous and sufficient to be general or habitual."

Applying the venue rules to the case before him, Judge Nealon found that the Defendant employer's activities in Lackawanna County were not sufficient to support the filing of the lawsuit in Lackawanna County.

As such, the Defendant's Preliminary Objections were sustained and the case was transferred to Bradford County with the costs of the transfer ordered to be borne by the Plaintiff.

Anyone wishing to review this decision may click this LINK.

Saturday, April 22, 2017


REMINDER:  This Wednesday, April 26, 2017, is Administrative Professionals (Secretary's) Day. A show of gratitude towards those who assist us in our day-to-day work will likely be greatly appreciated.

Friday, April 21, 2017

Motion to Sever and Stay Bad Faith Claim Denied in Fayette County Case

In a recent March 23, 2017 Order only out of the Court of Common Pleas of Fayette County in the case of Rimel v. Mutual Benefit Insurance Company and State Farm Mutual Automobile Insurance Company, No. 2450 of 2016, G.D., (C.P. Fayette Co. March 23, 2017 Cordaro, J.),Judge Linda R. Cordaro denied the Motion of Defendant, Mutual Benefit Insurance Company, to Sever and Stay a Bad Faith Claim.  

Anyone wishing to secure a copy of this Order may contact me at   Again, this decision is by Order only and without any Opinion.  

I send thanks to Attorney Brad D. Trust of the Pittsburgh, PA law office of Edgar Snyder & Associates, LLC, for bringing this Order to my attention.

Bifurcation of Coverage and Bad Faith Issues Denied in Eastern District Case

In the case of Eizen Fineberg & McCarthy, P.C. v. Ironshore Specialty Ins. Co., No. 16-2461 (E.D. Pa. Dec. 7, 2016 Slomsky, J.), the court denied a carrier’s Motion to Bifurcate the insured’s bad faith claim from a coverage claim. 

The carrier argued that the bad faith claims were dependent upon a finding of a breach of contract and that it would impose unnecessary discovery burdens on the parties in a case that could be resolved through a finding of no coverage (and, therefore, no bad faith).  

The court refused to find that the insured’s bad faith was dependent upon the carrier’s coverage claim.   The court noted that there could be other bases for the claim for bad faith.   The court also noted that judicial economy would be served by litigating the two (2) claims together.  

Anyone wishing to review this case may click this LINK.
I send thanks to Attorney Lee Applebaum of the law firm of Fineman Krekstein & Harris and the writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention. 

Wednesday, April 19, 2017

Pennsylvania Superior Court Rules that Insomnia is Not a Serious Injury in Limited Tort Context

In the case of Vetter v. Miller, 2017 Pa. Super. 64 (Pa. Super. March 10, 2017) (Ransom, J., Ford Elliot, P.J.E., Stephens, P.J.E.) (Op. by Ransom, J.), the court affirmed the trial court's decision that a Plaintiff's insomnia did not amount to a serious impairment of a body function for a limited tort Plaintiff under the facts presented.  

This decision was also notable for the Pennsylvania Superior Court’s analysis of what types of motor vehicle accident related criminal charges may be admissible in a subsequent civil case.   The court noted that all motor vehicle code violations are not of equal gravity.  

For example, the court noted that, while evidence of a conviction of driving while intoxicated may be admissible if supported by ample evidence of intoxication, a guilty plea of driving with a suspended license was only a summary offense that should not have been admitted in the court below.

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

I send thanks to Attorney James A. Beck from the Philadelphia office of the Reid Smith law firm for bringing this decision to my attention.  

Superior Court Addresses Post-Tincher Issues

In its recent decision in the case of Renninger v. A&R Machine Shop, 1896 WDA 2015 (Pa.Super. April 11, 2017 Lazarus, Stabile, Strassburger, J.J.)(Op. by Stabile), the Pennsylvania Superior Court upheld a defense verdict in one of the first Post-Tincher product liability cases to go up the appellate laddert.

In its Opinion, the court rejected a plaintiff’s narrow reading of the Tincher, writing, as follows:
“Appellants take a very narrow reading of Tincher, seemingly concluding that it overruled Azzarello but did little else.  Even a cursory reading of Tincher belies that argument. . . .  The Tincher Court did anticipate that its holding would have significant ripple effects to be addressed case by case as they arise.”

The Superior Court also noted that, after Tincher, it did not consider itself bound by pre-Tincher precedent:
“Ordinarily, this Court is bound by Supreme Court precedent, as well as the published decisions of prior en banc and three-judge panels of this Court. In the wake of Tincher, however, the bench and bar must assess the Tincher opinion’s implications for a large body of post-Azzarello and pre-Tincher case law.”

Anyone wishing to review this decision may click this LINK. 

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

Tuesday, April 18, 2017

Third Circuit Rules on Authentication and Admissibility of Facebook Chats

In a recent decision in the case United States v. Browne, 834 F.3d 403 (3d Cir. 2016 Fisher, Krause, Roth, J.J.)(Op. by Krause, J.), addressed the proper authentication and admissibility of social media posts.  The case involved an appeal of a  criminal case from the U.S. Virgin Islands.  Although this decision arises out of a criminal case, the rationale regarding the authentication and admissibility of Facebook chats may prove useful in the context of a civil litigation matter.

The Third Circuit rejected the government's argument that pursuant to F.R.E. 902(11) the contents of "chats" exchanged over Facebook were "self-authenticating" as business records when accompanied by a certificate from Facebook's records custodian.   The court more specifically ruled that the “chats” on Facebook were not business records under FRE 803(6) and thus could not be self-authenticated under FRE 902(11). 

The court nonetheless affirmed the appellant's conviction finding the trial record reflected more than sufficient extrinsic evidence to link the Appellant to the chats and thereby satisfy the government's authentication burden under a FRE 901 analysis.

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

I send a thanks to Brian J. Murren, a law clerk with the Camp Hill, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.

Thursday, April 13, 2017

Pennsylvania Superior Court Addresses Waiver of Attorney-Client and Attorney Work Product Privilege

In the case of BouSamra v. Excela Health, 2017 Pa. Super. 66 (Pa. Super. March 13, 2017 Bowes, Stabile, Musmanno, J.J.) (Op. by Bowes, J.), the Pennsylvania Superior Court affirmed the granting of a motion to compel surrounding a memorandum prepared by counsel for the defendant that was shared with an outside public relations firm.

The court found that the attorney/client privilege for that memorandum was waived when the client shared the Memorandum with the outside public relations firm.  It was noted that the public relations firm was not a part of the team offering legal advice.  

The court also found that the work product protection was waived for the same reason.  

In its opinion, the Pennsylvania Superior Court stated that the waiver doctrine analysis is essentially the same for both the attorney/client privilege and the work product privilege.

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

I send thanks to Attorney James A. Beck from the Philadelphia office of the Reid Smith law firm for bringing this decision to my attention.  

Request for Summary Judgment in Favor of Snow Removal Contractor Denied in Slip and Fall Case

In his recent decision in the case of Reilly v. Main Avenue Realty Development, No. 2015-CV-1250 (C.P. Lacka. Co. Mar. 31, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the liability of a snow removal contractor in a premises liability action arising from an alleged fall on an isolated patch of ice on commercial property.   The court denied the Motion for Summary Judgment filed by the snow removal contractor.  

In doing so, the court made reference to the contract between the snow removal contractor and the premises owner with regards to the required conduct of the snow removal contractor.   The court also noted that a written agreement may always be modified by subsequent conduct of the parties indicating a new or different intent under the contract.  

In this matter, the Plaintiff allegedly fell on an isolated patch of ice that was allegedly created by a dripping overhang near the entrance of a store.  

While the court found that the snow removal contractor was not liable under the contract between the parties to remedy the dripping overhang in the absence of evidence that the snow removal contractor was requested to do so, Judge Nealon found that evidenced in the record indicated that recent trace amounts of snow fall had fallen on the premises which could be found by the jury to have triggered a duty on the part of the snow removal contractor to visit and maintain the premises.  

Accordingly, the court found that a triable issue of fact existed as to whether the snow removal contractor would have observed and treated the ice patch from which the Plaintiff allegedly fell if he had visited the property to address the recent snow fall.  As such, the motion for summary judgment filed on behalf of the snow removal contractor was denied.
Anyone wishing to review this Opinion may click this LINK.


Monday, April 10, 2017

Pennsylvania Superior Court's Latest Take on the Dead Man's Rule

For the Pennsylvania Superior Court’s latest take on the Dead Man’s Statute, 42, Pa. C.S.A. 5930 in the case of Davis v. Wright, 2017 Pa. Super. 48 (Pa. Super. Feb. 27, 2017 Shogan, Ott, J.J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

In this matter, arising out of a fatal motor vehicle accident, the Pennsylvania Superior Court found that Dead Man’s Statute was not waived by the Defendant’s participation in discovery when no depositions or Interrogatories were completed.  

The court additionally noted that this defense under the Dead Man’s Statute did not need to be raised as an affirmative defense in a New Matter pursuant to Pa. R.C.P. 1030 in order to be preserved.  

Moreover, the court otherwise noted that the issues of negligence in this automobile accident case could not be established by the testimony of a police officer who did the accident report but who had no independent recollection of the incident.  

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

Source: “Case Summaries” by Timothy L. Clawges, Pennsylvania Bar News (March 20, 2017).

Friday, April 7, 2017



Good legal writing requires short paragraphs made up of short sentences. 

To shorten sentences, delete extraneous words.  But don’t delete all descriptive words such that your brief becomes a dry, choppy document devoid of feeling or persuasive effect.

Another way to shorten sentences is to ask yourself if that comma in the middle of that long sentence can be replaced with a period.  Usually it can and the reader will benefit from not having to wade through and re-read a run-on sentence to understand the multiple points contained therein.

To shorten paragraphs, make sure you have a good topic sentence and that all following sentences stay within that topic.  If more than one topic is discussed in the paragraph break it down into separate paragraphs.  When you do so, however, remember to make sure there is a good transition sentence at the end of the paragraph in order to create a good flow through all of the paragraphs that builds like a crescendo towards the desired result.

Another good form to utilize persuasive headings and sub-headings to guide the reader through your brief to the desired destination, i.e., the acceptance of your position.


Wednesday, April 5, 2017

Punitive Damages Claim Allowed to Proceed In Auto Accident Case Where FedEx Driver Was Looking at a Tracking Device While Driving

A punitive damages claim based upon use of an electronic tracking device by a FedEx driver while driving was allowed to proceed beyond Preliminary Objections in the Northampton County case of Ramos v. Frasca, No. C-48-CV-2016-1166 (C.P. North. Co. Aug. 5, 2016 Beltrami, J.), handed down back in August of 2016.

In this case, the Plaintiff filed a Complaint alleging that Defendant James Frasca, an employee of Defendant Federal Express Corp. (“FedEx”), was driving a FedEx truck at a high rate of speed while using a handheld electronic tracking device when he crashed into Plaintiff’s vehicle. Plaintiff sought punitive damages in her complaint.

Defendants filed preliminary objections, asserting that Plaintiff’s claim for punitive damages should be stricken.

In overruling the Defendant's Preliminary Objections, the Court noted that this was not a case of an alleged tortfeasor driver simply talking on a cell phone at the time of the accident;  rather, the Plaintiff alleged that the Defendant FedEx driver was actually using and looking at an electronic tracking device while driving.  The Court analogized the case to a previous case in Northampton County in which a request for punitive damages was not stricken when the complaint alleged that the defendant was driving at a high rate of speed while texting on a cellphone.

Accordingly, the Defendant's Preliminary Objections were overruled in this matter as well.

This decision is also notable for the Court's assertion that a punitive damages claim should not be set out as a separate Count in a Complaint as such a claim is simply a part of the general damages alleged.

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

I send thanks to Attorney Ralph Bellafatto of the Bellafatto Law Office in Easton, PA for bringing this decision to my attention.

Monday, April 3, 2017

Enforceability of Written Waiver of Right to Seek Pa.R.C.P. 229.1 Damages Addressed

In the recent case of Markiewicz v. CVS Care Mart, Corp., No. 2014-CV-4043 (C.P. Lacka. Co. March 10, 2017 Nealon, J.), Judge Terrance R. Nealon of the Lackawanna County Court of Common Pleas addressed a Plaintiff’s Motion for Sanctions under Pa. R.C.P. 229.1 relative to a Defendant’s alleged failure to pay settlement funds within the twenty (20) day period required by that Rule.  

According to the Opinion, after the Defendant in this personal injury action failed to pay the settlement funds to the Plaintiff within twenty (20) days of the Defendant’s receipt of the executed Release, the Plaintiff filed a motion under Pa. R.C.P. 229.1 seeking to recover interest and counsel fees from the Defendant.  

The defense asserted that the Plaintiff had agreed in writing to waive the right to seek such additional damages or interest under Rule 229.1.   

However, the Plaintiff asserted that the Defendant subsequently breached the terms of the parties’ settlement agreement by deducting the full amount of the Medicare lien from the Plaintiff’s gross settlement and forwarding those funds directly to the Center for Medicare and Medicaid Services, thereby depriving the Plaintiff of her ability to negotiate the Medicare lien down.  

Judge Nealon confirmed that the Plaintiff expressly waived any claim for additional damages or interests under Pa. R.C.P. 229.1 in the settlement agreement that the Plaintiff executed.   Accordingly, the court ruled that, based upon that clear and unambiguous language, the Plaintiff was unable to recover any such damages available under that rule.  

However, Judge Nealon went on to rule that, if the Defendant’s alleged actions violated the terms of the settlement agreement relative to the Medicare lien, the Plaintiff’s proper remedy was to file a Petition to Enforce the Settlement Agreement to recover any consequential damages for the Defendant’s alleged breach of that agreement. 

Accordingly, the Plaintiff’s Motion for Sanctions under Pa. R.C.P. 229.1 was denied without prejudice to the Plaintiff’s right to file a Petition to Enforce the Settlement Agreement.  

Anyone wishing to review Judge Nealon's decision in this case may click this LINK.