Pennsylvania Superior Court's Latest Take on the Attorney Work Product Doctrine

In the case of Estate of Paterno v. NCAA, 2017 Pa. Super. 247 (Pa. Super. July 25, 2017 Stabile, Panella, Dubow, J.J.) (Op. by Stabile, J.), the Pennsylvania Superior Court addressed the attorney work product doctrine.  

 

In a decision which affirmed in part and reversed in part the lower court’s decision, the appellate court ruled that the discovery of non-verbatim attorney notes and memoranda concerning interviews should not have been allowed by the lower court.  

 

The Superior Court noted that such items, including attorney summaries, are totally protected by the attorney work product privilege.   The court more specifically stated that the attorney work product is protected as long as the items involve attorney conclusions and mental impressions, whether or not such paperwork was prepared in anticipation of litigation.

 

In its decision, the court also noted that the protections of the attorney work product doctrine are broader under state law then federal law in this respect. 

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

 

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

 

Pennsylvania Superior Court's Latest Take on Lamp v. Heyman Service of Process Issues (Non-Precedential)

In its recent non-precedential decision in the case of Nicolas v. Zolner, No. 1261 MDA 2016 (Pa. Super. Aug. 15, 2017 Moulton, Solano & Musmanno, J.J.) (Mem. Op. by Musmanno, J.), the court provided its latest take on the Lamp v. Heyman line of cases pertaining to proper service of original process in a civil litigation matter.  

 

In this case, the court affirmed the trial court’s granting of the Defendant’s Preliminary Objections where the Plaintiff did not make any good faith effort to complete service of original process until approximately 2 ½ years after the expiration of the statute of limitations.  

 

In so ruling, the appellate court agreed with the trial court’s rejection of the Plaintiff’s arguments that the Plaintiff’s attorney’s dealings with the Defendant’s liability carrier put the Defendant on actual notice of the litigation.   The court found that this argument to be “without merit.”   The court additionally noted that communications between the Plaintiff and a Defendant’s carrier cannot serve as a substitute for actual service of process under the Rules of Civil Procedure.  

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

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

Nomination Period Open for 2017 Best Legal Blog Contest Run by the Expert Institute

If you are interested, here is a LINK to the webpage to nominate blogs for the 2017 Best Legal Blog Contest put on by the Expert Institute.

Pennsylvania Supreme Court to Address Impact of Facebook Posts on Discovery Rule Related to Statute of Limitations

In the case of Nicolaou v. Martin, No. 58 MAL 2017 (Pa. Aug. 18, 2017), the Pennsylvania Supreme Court has issued an Order agreeing to hear the appeal of a woman whose case against medical providers over an alleged misdiagnosis of her Lyme disease was dismissed partly because of Facebook posts indicated that she knew that she suffered from the disease years before filing the suit.  

 

The court has agreed to more specifically address the issue of whether the Plaintiff’s claims met an exception to the discovery rule related to the statute of limitations where the Plaintiff “did not and was financially unable to, confirm [the Defendant’s] negligent misdiagnosis until final medical testing confirmed she had Lyme disease.”  

 

Here is a LINK to the Pennsylvania Supreme Court's Order.

 

A split Pennsylvania Superior Court panel previously ruled that the Plaintiff’s claims were barred by the two (2) year statute of limitations.  

 

Source:  Article: “Pa. Justices Agree to Eye Facebook Post’s Impact on Discovery Rule By Max Mitchell of The Legal Intelligencer (Aug. 21, 2017).  

PA Superior Court Finds Attorney Client Privilege Waived With Regards to Communications With Outside Public Relations Firm

In the case of BouSamra v. Excela Health, 2017 Pa. Super. 235 (Pa. Super. July 19, 2017 Bowes, Stabile, Musmanno, J.J.) (Op. by Bowes, J.), the Pennsylvania Superior Court affirmed the trial court's ruling that a defendant corporation waived the attorney-client privilege by forwarding attorney correspondence to an outside public relations firm since 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.  

Anyone wishing to review this decision may click this LINK.

Source: "Digest of Recent Opinions." Pennsylvania Law Weekly (August 22, 2017).

For a review of a prior decision by the Pennsylvania Superior Court in the same case on the same issue click this LINK to go to that Tort Talk post.

Post-Koken Decision Out of Armstrong County in Favor of Consolidation of Claims -- Court Notes Still No Clear Appellate Precedent on this Issue

In a case of apparent first impression in Armstrong County, the court in the Post-Koken case of Stennett v. Religa and Erie Ins. Exchange, No. 2017-0491-Civil (C.P. Armstrong Co. July 24, 2017 Panchik, J.) denied a tortfeasor defendant's efforts to sever the tort claims asserted against him from the breach of contract UIM claims asserted against the carrier defendant.

In so ruling, the Stennett court noted that "there is no clear appellate precedent in Pennsylvania governing whether tort and insurance breach of contract claims, both arising out of a single accident, should proceed together."

The court ruled that the claim would proceed together in this matter through discovery without prejudice to the parties' right to seek a severance or bifurcation at the time of trial.

Anyone wishing to review a copy of this Memorandum and Order in the case of Stennett may click this LINK.

I send thanks to Attorney David M. Landay from Pittsburgh, PA law for bringing this case to my attention.

TORT TALK PRACTICE TIP

BE REDUNDANT IN STATING YOUR LEGAL POSITION IN BRIEFS

While redundancy in particular word use is to be avoided in brief writing, every effort should be made to repeatedly state the validity of your legal ­position supporting the relief requested.

The first and last sentence of each ­subsection of your brief should contain the legal conclusion that supports your ­client's position. 

Brief writers will often start with a statement of the applicable rule of law but never fully apply the facts of the matter to that law. Or they will apply the facts to the law but not write that next, most important, concluding sentence tying it all together by stating that the law supports the client's position such that the ­relief requested should be granted.

So be sure to end each section of the brief with a sentence set forth in an active voice stating that this part of your legal argument should be accepted as valid by the court under the law provided. 

Repeatedly end each section of the brief with a respectful statement that the motion at issue should therefore be granted or denied, whatever the case may be.

Twombly/Iqbal Standards Applied to Dismiss Bad Faith Complaint

In the recent Eastern Federal District Court of Pennsylvania case of Jones v. Allstate, No. 17-00648 (E.D. Pa. June 19, 2017 Pappert, J.), the Court applied the mandates of Twombly/Iqbal in granting the carrier's motion to dismiss the Plaintiff's bad faith claim filed against Allstate in a motor vehicle accident case.  The Plaintiff was granted leave to amend.

Quoting colorful language from the Iqbal case, the court noted that, while a Federal Court Complaint need not provide detailed facts, it must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation."

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


I send thanks to Attorney Kristin H. Jones of the Philadelphia office of Pepper Hamilton, LLP for bringing this decision to my attention.

Pennsylvania Supreme Court Agrees to Hear Household Exclusion and Stacking Issues Case

In the case of Gallagher v. Geico Indemnity, No. 87 WAL 2017 (Pa. Aug. 8, 2017), the Pennsylvania Supreme Court granted an appeal to address issues pertaining to a household exclusion and stacking issues.  The Court's Order granting the appeal reads, as follows:

AND NOW, this 8th day of August, 2017, the Petition for Allowance of Appeal is GRANTED. The issues, as stated by the Petitioner, are:

(1) Whether the "household vehicle exclusion" violates Section 1738 of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) where GEICO issued all household policies and unilaterally decided to issue two separate policies, when the insured desired stacking, elected stacking, paid additional premiums for stacking and never knowingly waived stacking of underinsured motorist benefits?

(2) Whether the "household vehicle exclusion" impermissibly narrows or conflicts with the statutory mandates of the Pennsylvania Motor Vehicle Financial Responsibility Law and the evidence of record is that GEICO was fully aware of the risks of insuring a motorcycle in the same household as other family vehicles but unilaterally decided to write a separate motorcycle policy?

 

 

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

Landlord Secures Summary Judgment In Slip and Fall Case Where Court Found Duties Owed by Tenant

In a recent decision by the Pennsylvania Commonwealth Court in the case of Stuski v. Philadelphia Auth. 4 Indev., No. 1979 C.D. 2016 (Pa. Cmwlth. May 25, 2017 Covey, J.), summary judgment was affirmed in favor of a landlord Defendant in a slip and fall matter.  

The court ruled that the tenant and not the landlord had the duty to remove snow and ice from the premises where the tenant had exclusive control over the premises where the slip and fall occurred.  The court additionally noted that the tenant was obligated under the lease to perform snow and ice removal and had taken actual responsibility for that task.  

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

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

 

Source:  “Digest of Recent Opinions,” Pennsylvania Law Weekly (June 20, 2017).  

 

TORT TALK PRACTICE TIP

AT TRIAL, KEEP A SEPARATE PAD TO RECORD OBJECTIONS


To ease the review of the file for appellate purposes after the trial is completed, keep a separate yellow pad listing all objections you have asserted and lost.

Prior to trial, start that list with any summary judgment issues or pre-trial motion in limine issues you may have lost.

During the course of the trial, each time you lose an objection, make some quick, concise note of it on the pad to help you to recall all such issues after trial as you determine which ones are worthy of taking up the appellate ladder.

Liability Case Allowed To Proceed Against Defendant Who Filed Chapter 7 Bankruptcy - PART II

Tort Talkers may recall a recent post on the Bankruptcy Court case of In re Betty L. Morris addressing the ability of a Plaintiff to move a personal injury case forward against a tortfeasor who is in bankruptcy where the Plaintiff agrees to limit the recovery to the amount of the liability limits available.  That Tort Talk post can be viewed via this LINK.

Anyone wishing to review the companion state court decision in that case along the same lines may click HERE.

I send thanks to Attorney Scott E. Diamond of the Philadelphia, Pennsylvania law firm of Sacks Weston Diamond, LLC for bringing this case to my attention. 

Court Rules That Rejection of UIM Coverage Forms Not Required Where Vehicle Not Insured for Liability

In the case of Baldridge v. Amica Mut. Ins. Co., No. 2:17-cv-00273-AJS (W.D. Pa. June 30, 2017 Schwab, J.), the Federal Western District Court of Pennsylvania addressed the issue of whether underinsured motorist coverage was available to the Plaintiff for stacking purposes on one of his four personal vehicles which the Defendant insured.  

According to the Opinion, there was no dispute that the Defendant insurance company insured the four (4) personal vehicles of the Plaintiff.  There was also no dispute that the Plaintiff had UIM coverage in the amount of $300,000.00 on three of the four personal vehicles.  

The question before the court was whether the Plaintiff was entitled to UIM coverage on the fourth vehicle, which was noted to be a Mustang.  The more specific question for the court to resolve was whether the Plaintiff had UIM coverage in the amount of $900,000.00 ($300,000.00 multiplied by three vehicles) or $1.2 million dollars ($300,000.00 multiplied by four vehicles).  

The carrier asserted that, because it never provided liability coverage on the Plaintiff’s Mustang, the carrier was never required to also offer the Plaintiff’s UIM coverage on that vehicle.  

The Defendant carrier produced a portion of the insurance policy it issued to the Plaintiff which confirmed that the Mustang was “not covered” for liability.   Rather, that vehicle was covered only for damage to the Mustang for accidents other than collision loss.  

After a review of the waiver/rejection of UIM coverage statutes found at 75 Pa. C.S.A. §1731 and §1734, the court agreed with the carrier’s position and found that, because the Mustang was not insured for liability purposes, the Defendant carrier was never required to offer UIM benefits on that vehicle.   As such, no signed waiver of UIM benefits with respect to the Mustang was required by law.  

Accordingly, the court ruled in favor of the Defendant carrier on the motion presented.  

Anyone wishing to review this decision may click this LINK.


I send thanks to Attorney Joseph Hudock of the Pittsburgh, Pennsylvania law firm of Summers McDonnell, Hudak & Guthrie, P.C., for bringing this case to my attention.