Tuesday, January 30, 2018


The High School Mock Trial Competition is heating up in counties across the Commonwealth.  Please consider serving as a Juror to score the high school students competing in the tournament as attorneys and witnesses. 

For more details on the benefits of participating as a Juror in the competition please see my recent Pennsylvania Lawyer Magazine article on the topic at this LINK.  I am beginning the process of working with the Young Lawyers Division of the Pennsylvania Bar Association to draft a recommendation to the Board to urge the Pennsylvania Supreme Court and the CLE Board to consider allowing a CLE credit or credits for participation as a Juror.  The hope is that this will become a reality in future years.

Locally, the Lackawanna County Mock Trial Competition gets underway tonight at 6 pm in the state and federal courthouses in Scranton, PA.   Jurors are still needed to fill the Jury boxes.

To Sign Up to Serve as a Juror

  LBA at 570-969-9161 

Ryan P. Campbell, Esq. at HRLaw04@gmail.com  


- Round 1 - 

 Tuesday, January 30 at 6:00 p.m.

6 Trials

(3) William J. Nealon Federal Courthouse

(3) Lackawanna County Court of Common Pleas


Jurors also needed for Round II
Wednesday, February 7, 2018
6:00 p.m.

Magistrate Judge Carlson of Federal Middle District Offers Up Guiding Principles for Social Media Discovery

In the case of Landau v. Lamas, 3:15 – CV - 1327 (M.D. Pa. Dec. 15, 2017 Carlson, M.J.)(Mem. Op.), Federal Magistrate Judge Carlson discussed "Guiding Principles" for social media discovery under the general mandates of F.R.C.P. 26 pertaining to permitted discovery efforts. 

This case arises out of a Section 1983 civil rights suit by a prison inmate.

According to the Opinion, the Plaintiff motioned to compel what the court described as "extremely intrusive inquiry" into the Defendant's social media pages. 

The Court denied the motion to compel to the extent the motion sought "wholesale access to electronic social media.”  However, the Court allowed the Plaintiff to attempt to craft more specifically tailored discovery requests.

The Court also directed the defense to preserve all social media content from the relevant time period and to make inquiries regarding any social media that may have been deleted.  The defense was also told to voluntarily produce relevant social media content in accordance with the requirements of F.R.C.P. 26.  The defense was also ordered to specify what content was being withheld and to state why it was being withheld.

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

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

Monday, January 29, 2018

Amazon.com Found Not to Be A "Seller" for Purposes of Pennsylvania Strict Liability Claim (UPDATE: Reversed on Appeal)

In the case of Oberdorf v. Amazon.com, Inc., No. 4: 16-CV-01127 (M.D. Pa. Dec. 21, 2017 Brann, J.) Judge Matthew W. Brann of the Middle District Federal Court of Pennsylvania granted summary judgment in favor of the Defendant after finding that an online marketer, such as Amazon.com, is not liable for defects in products purchased through its website from third party vendors.  

The case arose out of an incident during which the Plaintiff was injured when a retractable leash she was using while walking her dog allegedly malfunction, snapped back, and caused permanent injury to the Plaintiff's eye.

The court generally noted that the online marketer is not a seller of third-party products as required by §402A of the Restatement (Second) of Torts.  

Rather, the court found that the Amazon.com website was a merely a means of marketing products by a third party seller who chose what products to market and how.   The court noted that, due to the enormous number of third party sellers and their products, the Defendant, Amazon.com, was not in a position to pass upon the quality of the innumerable products available on its website.  

Rather, the Amazon Marketplace was deemed by the court as a sort of newspaper classified ad section that puts potential consumers in touch with sellers.

As such, given that the court found that Amazon.com is not a seller in the context of Section 402A, the Plaintiff's strict liability claims asserted against this online marketer were dismissed.

Judge Brann's Opinion in Oberdorf can be viewed at this LINK.  The Court's accompanying Order can be viewed HERE.

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

UPDATE:  On July 3, 2019, the Third Circuit Court of Appeal reversed this decision in an Opinion issued under docket No. 18-1041.  Type "Oberdorf" into the Search Box to access the Tort Talk blog post on that decision along with a Link to the Third Circuit's Opinion.

UPDATE:  According to a September 23, 2020 article in the Pennsylvania Law Weekly, this case was settled and, therefore, the Pennsylvania Supreme Court would not be addressing the question presented.

Wednesday, January 24, 2018

Punitive Damages Claim Allowed to Proceed in Cell Phone Use Car Accident Case

Another Northampton County Court of Common Pleas case allowing claims for punitive damages to proceed beyond the preliminary objections stage in a case where the Plaintiff was rear ended by a defendant in an auto accident case during which the defendant was allegedly talking and/or texting on a cell phone while operating his vehicle at an excessive rate of speed.

To view this case of Lopez v. Wilson, 59 Northampton 812 (C.P. Northampt. Co. 2017 Murray, J.), click this LINK.

In this decision from the early part of last year (2017), the court provides a nice summary of the early cases on this particular issue.

Source: "Court Summaries" by Timothy L. Clawges in The Pennsylvania Bar News Vol. 28 No. 1 (Jan. 1, 2018).

Tuesday, January 23, 2018

ARTICLE: The Benefits of Participation in the Mock Trial Competition

Here is a LINK to my recent article in the January/February 2018 edition of The Pennsylvania Lawyer magazine entitled "The Benefits of Participation in the Mock Trial Competition."

The article touts the benefits of offering your time and expertise to this excellent program for high school students run by Young Lawyer Divisions all across the Commonwealth of Pennsylvania.

Hoping you might consider helping out the program by volunteering your time as a juror in a local mock trial competition in your county.  As noted in the article, you may be surprise by how much you can learn simply by sitting in the jury box and watching a simulated trial play out before.  Perhaps most enlightening is the fact that an effective Opening Statement and a forceful Closing Argument can be presented within the confines of a mandatory five minute time limit.

The educational benefits of participating as a juror in the mock trial program are so great that the CLE Board should consider revising its guidelines or bylaws to allow for at least one substantive credit per year per attorney for participation as a juror.  Surely, more is learned by an attorney actively participating as a mock trial juror than by passively sitting and watching a CLE video.

Participation in the mock trial program as a juror or otherwise is a great way to give back to the community and serves to mentor some of those high school students who may make up the next generation of the bar.

The local Lackawanna County Mock Trial Competition gets underway a week from today on January 30, 2018 -- please consider contacting the Bar Association to volunteer your time as a juror.

Friday, January 19, 2018

Writing Tips

I came across the below good tips for writing and, finding them amusing, thought I would share them with you here on Tort Talk:

Tuesday, January 16, 2018

A Primer on Complaint Drafting by the Superior Court

In the case of Bouchon v. Citizen Care, Inc., 2017 Pa. Super. 379 (Pa. Super. Dec. 6, 2017 Stabile, Olson, Strassburger, J.J.) (Op. by Stabile, J.), the Pennsylvania Superior Court provided lessons on the proper drafting of a Complaint in a civil litigation matter.  

Among the tips provided by the Superior Court in this decision is that a Plaintiff must plead claims separately against each Defendant.   The court noted that only claims against jointly liable Defendants may be pled together under certain circumstances.  The court noted that pleadings claims against separate and distinct Defendants together makes it impossible for each Defendant to properly respond.   As such, the court noted that multiple use of “and/or” and references to “Defendants” globally  render the Complaint unanswerable and are, therefore, improper.  

The court also noted that a Plaintiff is required to denominate the claims as wrongful death claims or survival actions in the Complaint.    The court noted that the nature of each claim must be specifically identified under Pa. R.C.P. 1019.  Moreover, wrongful death and survival actions are required to be labeled as such under Pa. R.C.P. 1020.  

The court additionally noted that wrongful death and survival actions must be brought by a personal representative of the deceased, and not merely by a statutory beneficiary.  

The court otherwise noted that claims of negligence, corporate negligence, and vicarious liability are separate causes of action.   It was additionally noted that “Damages” is not a proper separate cause of action.  

In the end, the court did provide the Plaintiff with another opportunity to amend and refile their Complaint.   

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

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

Friday, January 12, 2018

Plaintiff's Motion to Remand Post-Koken Claim Back To State Court Denied

In his recent decision in the case of Hagan v. Leon, No. 3:17-cv-2155 (M.D. Pa. Jan. 3, 2018 Mariani, J.) (Mem. Op. Judge Robert D. Mariani of the Federal Middle District Court of Pennsylvania), the court denied a Plaintiff’s Motion to Remand his post-Koken claims back to the state court.  

Judge Robert D. Mariani
M.D. Pa.
In this matter, the Plaintiff sued the alleged third party tortfeasor Defendants on a negligence claim and his own carrier, Progressive, for underinsured motorist benefits.

The Plaintiff had previously released the tortfeasor Defendants in exchange for a payment of $15,000.00 along with an agreement to refuse any consent to removal that may be sought if the UIM carrier attempted to remove the case to federal court.  

Thereafter, Progressive filed a Notice of Removal to which the Plaintiff responded with a Motion to Remand.   The Plaintiffs asserted that the Notice of Removal failed to allege citizenship of all parties at the time the Complaint was filed and further asserted that not all Defendants had consented to the removal as required by the removal statute.  

On the same day that the Plaintiffs’ Motion to Remand was filed, Progressive amended its Notice of Removal to include allegations of the citizenship of all of the parties at the time the Complaint was filed.  

After reviewing the matter, the court found that both of the Plaintiffs’ arguments lacked merit and, therefore, denied the Plaintiff’s Motion to Remand.  

Judge Mariani more specifically noted that Progressive’s Amended Notice of Removal clearly stated that, at the time the Plaintiffs’ Complaint was filed, the Plaintiffs were citizens of Pennsylvania and the tortfeasor Defendants were citizens of New Jersey and the UIM carrier Defendant was a citizen of Ohio.   Accordingly, the court found that, even if Progressive’s original Notice of Removal was deficient, the defect was cured by the amendment.

Turning to the Plaintiffs’ second argument, the court reviewed the procedure for removing a civil case to federal court under 28 U.S.C. §1446.  The court noted that this code provision has been construed to require that, when there is more than one (1) Defendant, all must join in the removal petition.   However, the court noted a recognized  exception that provided that the unanimity rule may be disregard where (1) a non-joining party is an unknown or nominal party; or (2) where a defendant has been fraudulently joined.  

The court noted that nominal parties are generally those  parties without any real interest in the litigation.

Here, the court noted that the tortfeasor Defendants had been released from the matter by way of a settlement agreement.  Accordingly, the court found that the tortfeasors had no real remaining interest in the litigation and, therefore, were, consequently, nominal parties from whom consent was no longer required to support a removal of a state court litigation to federal court.  

In so ruling, Judge Mariani stated that it did not appear that the Third Circuit Court of Appeals had ever considered a similar fact pattern prior to this decision.  However, the court noted that similar rulings have been issued by the Fifth Circuit Court of Appeals and the Eighth Circuit Court of Appeals granting remands under analogous facts.   As such, the Plaintiff’s Motion to Remand was denied.  

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


Wednesday, January 10, 2018

Statute of Limitations As Compared to Statute of Repose

In its recent decision in the case of Dubose v. Quinlan, No. 22 EAP 2016 (Pa. Nov. 22, 2017) (Op. by Mundy, J.)(Baer, J., Concurring and Dissenting)(Saylor, C.J., Dissenting), the Pennsylvania Supreme Court reviewed the differences between the statute of limitations and a statute of repose in the context of a medical malpractice case.  

Concisely, the court found that statute of limitations create a time limit for bringing suit, based upon the date the claim accrued.  In contrast, statutes of repose may limit when suits may be brought, not on the basis of an accrual of a claim, but from some other cut-off date.  

The court noted that only statutes of limitation are subject to equitable tolling under Pennsylvania law.  

This decision is also notable in its holding that the statute of limitations for both wrongful death and survival claims in a medical malpractice case is two (2) years from the date of death.  

The court also noted that the MCARE Act modified the applicable statue of limitations in medical malpractice cases such that, in wrongful death actions arising out of a medical malpractice claim, the claim only accrues at death, not from earlier injuries.   The court found that, as the more specific statute on the issue presented, the MCARE provisions prevailed over the general tort statute of limitations.  

Anyone wishing to review the Majority Opinion may click this LINK.

Justice Baer's Concurring and Dissenting Opinion can be viewed HERE.

Chief Justice Saylor's Dissenting Opinion can be viewed HERE.

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

Links To Forms Under Public Access Policy Corrected

I believe I have corrected the LINKS to the "Confidential Information Form" and the "Confidential Document Form" under the AOPC's Public Access Policy that were contained in the recent Tort Talk blog post confirming that the policy is now in effect.

I apologize for any inconvenience.

Here is a LINK to go back to that Tort Talk post.

Don't forget that all court filings should now include the following certification:

"I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania:  Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents."

I had originally planned to file a separate piece of paper with a that certification under a caption but have changed my mind to simply add the certification right above the signature line of every document I file with the court.

Monday, January 8, 2018

IN EFFECT NOW: The Public Access Policy of the Unified Judicial System of Pennsylvania

Effective today, January 8, 2018, the Public Access Policy of the Unified Judicial System of Pennsylvania will require attorneys to file a certification, with every document filed with the court, that confirms that sensitive, private, and/or confidential information has been redacted from the document.

The certification that shall accompany each filing is required to be in substantially the following form:

"I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania:  Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents."

Also, if confidential information is contained within the court filing, or in documents attached to the court filing, other documents noted below will have to be filed as well.

Here is a LINK to the Public Access Policy of the Unified Judicial System of Pennsylvania:  Case Records of the Appellate and Trial Courts.

Here is a LINK to the "Explanatory Report" on the Public Access Policy of the Unified Judicial System of Pennsylvania.

Here is a LINK to the Confidential Information Form which shall be filed whenever a party is required to submit documents or filings containing confidential information with the court filing.

Here is a LINK to a Confidential Document Form which is required to be filed whenever documents attached to the filing contain confidential information that should be shielded from the public.

Wednesday, January 3, 2018

Judge Nealon of Lackawanna County Weighs in on Severance, Stay, and Bifurcation of Post-Koken Bad Faith Claims

In the case of Fertig v. Kelley, No. 16 - CV - 4801 (C.P. Lacka. Co. Dec. 29, 2017 Nealon, J.), Judge Terrence R. Nealon denied a UIM carrier's motion to sever and stay bad faith claims in a Post-Koken matter but held that the bad faith claims would be later bifurcated for trial.

Judge Nealon issued a thorough Opinion that outlined the current status of the splits of authority in the Pennsylvania state and federal courts on the issue of bifurcating and staying a bad faith claim in a Post-Koken lawsuit that also contains third party negligence and UIM breach of contract claims.  

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon confirmed that, to date, no state appellate court has addressed this issue.

The court in Fertig cited to issues of judicial economy in deciding to deny the motion to sever and stay the bad faith claims during the discovery phase of the litigation.  The court directed that any discovery disputes on the bad faith claim could be addressed through motions practice.

In ruling that the bad faith claims would be bifurcated for purposes of trial, Judge Nealon elected to follow the procedure first espoused by Allegheny County Court of Common Pleas Judge R. Stanton Wettick in the cases of Gunn and Wutz

Under that procedure, the trial of the third party negligence claims and UIM claims would go first before the jury, and would then be immediately followed by a bench trial on the bad faith claims. 

Under this procedure, once the jury retires to the deliberation room on the third party and UIM claims, the UIM defendant would be required to turn over additional unredacted discoverable materials from the carrier's file that may have been properly withheld during the pendency of the UIM claim (i.e., information on the carrier's evaluation of the claims, etc.).   The Plaintiff would then have the option of proceeding directly into the bench trial on the bad faith claims or requesting a continuance to digest the information produced.

Anyone wishing to review this decision may click this LINK.

Commentary:  As stated, there remains a split of authority on this issue of severance (and staying) and/or bifurcation of various types of claims in Post-Koken auto accident matters.  A comprehensive list of the cases can be viewed on the Tort Talk Post-Koken Scorecard, which can always be accessed down the right hand column of the blog at www.TortTalk.com.  Here is a quick LINK to the Scorecard for your easy reference.


I welcome the opportunity to assist you in settling your case through CUMMINS MEDIATION SERVICES in the year ahead.

To schedule a Mediation, please contact me at dancummins@comcast.net or at 570-346-0745.

Resume and fee schedule available upon request.

Tuesday, January 2, 2018


Most Tort Talkers receive their Tort Talk info by way of email. If you are not already an email subscriber to Tort Talk and would like to become one (it's FREE!), please go to Tort Talk at www.TortTalk.com and insert your email address into the Email Subscription box in the upper right hand corner of the blog and follow the instructions to complete the process.

Once you are up and running, you will automatically receive the updated posts added to Tort Talk (1-3 per week) on notable cases and trends in Pennsylvania Civil Litigation Law.

Tort Talk is not only a way to get updates on new cases and trends, it can also serve to kickstart your research if you actually go to the Tort Talk site at www.TortTalk.com. On the site itself there are a number of research tools to help you find the case(s) or article(s) you are looking for.

Note that Tort Talk is NOT an exhaustive legal research site--you should always supplement your research on your issue presented elsewhere to ensure that you have a thorough review of the area of law in question.  Also, any case you find should be Shepardized to see if there has been any more recent, adverse rulings.

Here are the Tools available on Tort Talk:

Search This Blog Box

The "Search This Blog" Box in the upper right hand column of the site allows readers to type in search terms or key words to look for posts on that particular topic. By typing in your search term in the white box (delay damages, limited tort, slip and fall, or a case name, etc.), you will be sent to a page that will list each Tort Talk post that covers that topic. You can then click on each post that comes up to read further.

Post-Koken Scorecard

You can always access the Post-Koken Scorecard to check on the status of decisions in your county on Post-Koken issues by looking and scrolling down the far right hand column of the blog and clicking on the date under the Label "Post-Koken Scorecard."

Facebook Discovery Scorecard

You can always access the Facebook Discovery Scorecard to check on the status of Pennsylvania decisions on Facebook Discovery issues by looking and scrolling down the far right hand column of the blog and clicking on the date under the Label "Facebook Discovery Scorecard."


Also further down on the right hand column of the blog is a section called "Labels," which is another tool that you can use to find cases or articles on a specific topic.  The topics, or Labels, are listed in alphabetical order.  By clicking on the Label that's specific to your research ("Bad Faith," "Limited Tort," "Future Medical Expenses," etc.) you will be sent to a page that list each and every Tort Talk post that touches upon that topic. You can then click on each blog post title to read further.

My Published Articles

Down in the middle of the right hand column of the blog is also a box under the Label "My Published Articles" in which are listed some of the most recently published articles of mine that have been posted online at the www.JDSupra.com website. If you are looking for older articles you can always click on the JDSupra box to go to that site where a full listing of the articles can be accessed and searched.

I note that the Pennsylvania Law Weekly does not allow me to post my articles on the JDSupra site as that site is considered a competitor. However, I am permitted to post my Law Weekly articles on Tort Talk which I have done since I started the blog. You can find those articles by typing in key words or terms into the Search this Blog box. Please also feel free to email me directly for a copy of any of my articles that you may be looking for(dancummins@comcast.net).


Last but certainly not least, down on the right hand column is a list of "Links" I have created to other sites, including my Firm's website and other online professional profiles that I have created along with links to some other legal and non-legal-related websites that may be of interest.

Thanks again for reading Tort Talk and thanks to all who have provided tips on breaking news and cases of note. I am grateful for your interest and support.  Please feel free to send me a copy of any notable decisions you may generate in your practice for possible highlighting here on Tort Talk.

If I should be able to you help out in any way, please do not hesitate to contact me at dancummins@comcast.net.