Wednesday, February 28, 2018

Summary Judgment Denied in Lackawanna Slip and Fall Case

In his recent decision in the case of Santiago v. Wegmans Food Markets, Inc., No. 16-CV-1529 (C.P. Lacka. Co. Feb. 2, 2018 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a property owner’s Motion for Summary Judgment in a slip and fall action.

According to the Opinion, the Plaintiff was an employee of an independent contractor that was retained by the property owner to provide janitorial services.   The Plaintiff was allegedly injured in a slip and fall event on the premises.  

The Defendant-owner filed a Motion for Summary Judgment on the basis that it allegedly owned no duty of care to the employee of the independent contractor.  The landowner Defendant argued that a landowner who retains an independent contractor cannot be vicariously liable for the negligence of an independent contractor or its employees.  

However, Judge Nealon denied the Motion for Summary Judgment under the “retained control” exception to that theory of non-liability.  Under the exception, a property owner who entrusts work to an independent contractor remains subject to liability if its contract with the independent contractor grants the landowner control over the manner, method, and operative details of the independent contractor’s work.  

Judge Nealon found that there were issues of fact in this regard that required the court to deny the Motion for Summary Judgment filed.  

Anyone wishing to read this Opinion may click this LINK.



Monday, February 26, 2018

Superior Court Finds Trial Court Abused Discretion in Not Granting Continuance To Allow Party To Secure New Expert

In the case of Rutyna v. Schweers, No. 895 WDA 2016 (Pa. Super. Jan. 4, 2018 en banc) (Op. by Lazaurs, J.) (Olson, J., concurring), the Pennsylvania Superior Court reversed the entry of summary judgment and ruled that the trial court abused its discretion in denying the Plaintiff a continuance where, through no fault of the Plaintiffs, the Plaintiff’s expert was suddenly unable to testify less than three (3) weeks before trial. 

This case involved a legal malpractice action related to an underlying medical malpractice action.

In reviewing the issue presented, the Superior Court referenced Pa.R.C.P. 216 for allowable grounds for a continuance and also reviewed the factors typically considered with such requests, including whether there was prejudice to the opposing party by the delay, whether the opposing party was willing to continue the case, and the complexities involved in presenting the case.  Op. at p. 10-11 and fn. 12

The court ultimately found that, given the history of the case, the Plaintiffs were left with insufficient time to obtain a new expert.  

In its Opinion, the Superior Court emphasized that, while the swift resolution of cases is a "linchpin of judicial economy," is not an end in and of itself. Op. p. 18.

The Rutyna decision 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.   

Friday, February 23, 2018

Measure of Damages for Commercial Tort of Breach of Fiduciary Duty in Financial Conversion Case

In the case of Arvonio v. PNC Fiinancial Services Group, Inc., No. 11 CV 478 (C.P. Lacka. Co. Feb. 14, 2018 Nealon, J.), the court reviewed a case involving commercial torts including breach of a fiduciary duty in a financial conversion case.

More specifically, the court addressed a motion in limine filed by a defendant seeking a court ruling on the proper measure of damages in an action filed by debtors/mortgagors against their investment management company alleging breach of contract and fiduciary duties for allegedly liquidating the Plaintiff's investment management accounts without the Plaintiff's authorization to do so.

Judge Terrrence R. Nealon of the Lackawanna Court of Common Pleas held that 42 Pa.C.S.A. Section 8335 set forth the proper measure of damages as being the difference between the proceeds of the wrongful conversion of the Plaintiff's investments and the higher value that the property may have reached within a "reasonable time" after the owner received notice of the conversion.

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

Pennsylvania Supreme Court Reviews Collateral Order Doctrine for Appeals

Roadblock to the Appellate Ladder

Tort Talkers may recall prior posts on the Lebanon County case of Shearer v. Hafer pertaining to whether a Plaintiff is entitle to have a representative present during portions of a neuropsychological IME. 

The Tort Talk post on the Superior Court's decision in this case can be viewed HERE.  The post on the trial court's decision can be viewed HERE.  Concisely, the Superior Court affirmed the trial court's order allowing a representative of the Plaintiff to be present during the preliminary interview phase of the neuropsychological evaluation, but not during the standardized testing portion of the evaluation.

Now comes the Pennsylvania Supreme Court decision recently handed down in this case on January 18, 2018 ruling that the Pennsylvania Superior Court erred in even considering the issue on appeal as the trial court's order was not an appealable order as of right under Pa.R.A.P. 313 where the trial court order only met one of the three prongs of the collateral order doctrine.  As such, the Superior Court's decision on the issue was vacated.

The Majority Opinion of the Court in Shearer v. Hafer, No. 93 MAP 2016 (Pa. Jan. 18, 2018), written by Justice Todd, can be viewed HERE.

Justice Wecht's Concurring Opinion can be viewed HERE.

Justice Mundy's Dissenting Opinion can be viewed HERE.

This Opinion may be a good one to consult if you have a question on whether a trial court order is appealable under the collateral order doctrine under Pa.R.A.P. 313. 

The Pennsylvania Supreme Court reaffirmed the rule of law that the collateral order doctrine is to be narrowly construed and that each of the three prongs to allow for an appeal must be clearly present.

The three prongs of the collateral order doctrine as set forth under Pa.R.A.P. 313(b) are:

(1) the order is separable from and collateral to the main cause of action

(2) the right involved in the order is too important to be denied review by the appellate court, and

(3) the question presented is such that if review is postponed until the final judgment of the case, the claim will be irreparably lost.




Mock Trial Jurors Needed for Final Trial in Lackawanna County District Tournament




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

In Lackawanna County, Attorneys are still needed to fill the Jury Box for the Finals of the Lackawanna County Mock Trial Competition.   

These kids put hours and hours of preparation into their presentations.  It would be great for them if they could present their cases to a full Jury Box.  

If you can spare your time and expertise, it would be greatly appreciated if you could please volunteer to help the Competition by serving as a Juror.


LACKAWANNA COUNTY
MOCK TRIAL COMPETITION

Jurors needed for Final Round


Wednesday, February 28, 2018
William J. Nealon Federal Courthouse


6:00 p.m.


To Sign Up to Serve as a Juror
Contact

  LBA at 570-969-9161 
or

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


Thursday, February 22, 2018

Punitive Damages Claim Allowed to Proceed in Trucking Accident Case

In the case of Gaffin v. Walker, No. 7974-CV-2017 (C.P. Monroe Co. Jan. 30, 2018 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas overruled a trucking Defendant’s Preliminary Objections to a Plaintiff’s Complaint with respect to punitive damages alleged based upon a rear-end motor vehicle accident.  

The defense contended that the case involved a simple rear-end collision sounding in ordinary negligence.  

In response, the Plaintiff asserted that the subject accident involved a tractor trailer rear-ending the Plaintiff’s flatbed truck.  The Plaintiff also alleged that the Defendant violated portions of the Federal Motor Carrier Safety Regulations.  

Judge David J. Williamson
Monroe County
 
After reviewing the current status of Pennsylvania law pertaining to punitive damages and allegations of recklessness, the court found that the Plaintiff alleged sufficient facts to allow the punitive damages claim to proceed beyond the pleadings stage.   The court cited to other cases in which punitive damages claims were allowed to proceed where a Plaintiff alleges violation of state and federal statutes pertaining to commercial vehicle driving.  

The court also noted that punitive damages could be awarded under the Plaintiff’s allegations of vicarious liability in addition to the allegations of direct conduct. 

Anyone wishing to review this Opinion may click this LINK.
 

I send thanks to Attorney John P. Finnerty, Esquire of the Moosic, Pennsylvania office of Dougherty, Leventhal & Price, LLP for bringing this case to my attention.   

Allegations of Recklessness and Punitive Damages Allowed to Proceed in Trucking Accident Case



In the Schuylkill County Court of Common Pleas case of Rosencrance v. Smith, No. S-1535-2017 (C.P. Schuylkill Co. Jan. 19, 2018 Domalakes, J.), the court denied a Defendant's Preliminary Objections to allegations of recklessness and the request for punitive damages in a rear end trucking accident case.

This matter arose out of a chain reaction accident in a construction area on Interstate 81 during which the Defendant tractor trailer driver allegedly rear-ended a vehicle, causing several additional rear end impacts up ahead, including to the Plaintiff's vehicle.

After reviewing the current status of Pennsylvania law on punitive damages, the court found that the allegations in the Plaintiff's Complaint were sufficient to allow such claims to proceed beyond the pleadings stage.  

More specifically, the Plaintiff averred that the Defendant tractor trailer failed to operate his vehicle at a safe and prudent speed in that he was unable to stop his vehicle without rear ending the vehicles ahead, that he failed to apply his brakes in time, failed to stop within the assured clear distance ahead, followed too closely, and violated several provisions of the Motor Vehicle Code.

In the end, the court denied the Defendant's Preliminary Objections to the Plaintiff's Complaint.

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

I send thanks to Attorney Stephen J. Fendler of Fendler Law Offices in Kingston, PA for bringing this decision to my attention.


Wednesday, February 21, 2018

Supreme Court Reverses Law and Rules that PennDOT Not Immune From Suit For Negligent Installation of Guiderail




In the case of Cagey v. PennDOT, No. 36 WAP 2016 (Pa. Feb. 21, 2018)(Maj. Op. by Donohue, J.), handed down by the Pennsylvania Supreme Court yesterday, the Court expressly overruled Fagen and its progeny and held that PennDOT is only immune when it fails to install a guardrail.  The Court held that when PennDOT installs a guardrail, sovereign immunity is waived if the agency’s negligent installation and design creates a dangerous condition that causes or contributes to an accident. 
Although there are two Concurring Opinions, it appears that all of the Justices agreed on the ultimate holding of the case set forth above. 
Anyone wishing to review the Majority Opinion written by Justice Christine Donohue may click this LINK.
The Concurring Opinion written by Chief Justice Thomas G. Saylor can be viewed HERE.
The Concurring Opinion written by Justice David Wecht can be viewd HERE.
I send thanks to Attorney Scott Cooper for bringing this decision to my attention.
 

Choice of Law Analysis Reviewed by Western Federal District Court of Pennsylvania


In the case of Alley v. MTD Products, Inc., No. 3: 17-CV-3 (W.D. Pa. Dec. 20, 2017 Gibson, J.), the court denied summary judgment filed by the Defendant in this products liability case involving alleged injuries from a snowblower. 

This decision is also notable for its Choice of Law analysis in terms of whether Ohio law or Pennsylvania law should be applied.  In the end, the court found that Pennsylvania law should be applied under the analysis.

In its decision, the court ruled that, where a product manufactured in another state injures a Pennsylvania resident who bought and used the product in Pennsylvania, the law of Pennsylvania will be applied to the personal injury case.   The court found that Pennsylvania’s contacts and interests are stronger than those of the state where the product is merely manufactured.  

Anyone wishing to review this decision may click this LINK.


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

Source of image: www.fleximize.com

Tuesday, February 20, 2018

Pennsylvania Eastern District Federal Court Rules That New Stacking Forms Required Whenever Higher Limits of UM/UIM Benefits Purchased (Mem. Op.)

In the case of Barnard v. The Travelers Home and Marine Ins. Co., No. 17-00290 (E.D. Pa. Feb. 5, 2018 McHugh, J.) (Mem. Op.), the court addressed the issue of whether a carrier was required to obtain an additional written waiver of stacking of UIM benefits where the insured had signed a waiver of stacked benefits when the policy was originally issued but, two (2) years later, sought to purchase a higher level of UIM benefits.  

According to the Opinion, the UIM benefits originally purchased were in the amount of $50,000.00 and stacking was rejected on two (2) vehicles.   When the insured later secured increased UIM limits, a new rejection of stacking form was never secured.  

In his Memorandum Opinion, Judge McHugh held that a new rejection of stacking form was required when the UIM benefits were increased since, under the judge’s review of the applicable statutes, a carrier is required to secure a rejection of stacking from the insured whenever higher UIM policy limits are purchased.  

Anyone wishing to review this decision may click this LINK.


I send thanks to Attorney Scott B. Cooper of the Harrisburg, Pennsylvania law offices of Schmidt Kramer, P.C. for bringing this case to my attention.    





Monday, February 19, 2018

Class Two Insured Not Permitted to Stack UIM Limits Under Employer's Fleet Policy

Tort Talkers may recall the prior blog post on the case of Selective Insurance of South Carolina v. Koons-Gill, No. 13-CV-6415 (C.P. Lacka. Co. Dec. 14, 2016 Nealon, J.), in which Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a decision in this declaratory judgment action on the issue of whether an employee of ambulance service company, who was injured in a work-related accident while occupying her employer’s ambulance, may stack the underinsured motorists coverage limits for the six (6) ambulance vehicles that were insured under the employer’s commercial business automobile insurance policy.

After reviewing the matter, Judge Nealon ruled that, based upon the clear and unambiguous language of the employer’s policy as applied to the stipulated set of facts presented by the parties, the employee was found to be a “class two” insured who was not entitled to stack the UIM coverage limits for the six (6) ambulances that were insured under the employer’s commercial policy.  

Accordingly, the court entered a verdict in this declaratory judgment action finding that the UIM coverage limit governing the employer’s claim to be single UIM coverage limit applicable to the ambulance that the employee was occupying at the time of her injury.  

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

By way of update, it is noted that this decision was recently affirmed on appeal in a non-precedential Opinion by the Pennsylvania Superior Court issued on February 13, 2018 under Superior Court Docket No. 163 MDA 210.  The Superior Court's non-precedential Opinion may be viewed HERE.

Tincher Decision Revisited by Pennsylvania Superior Court

The courts of Pennsylvania continue attempt to move forward in the post-Tincher world of products liability cases, including in the actual Tincher case.

On remand from the Pennsylvania Supreme Court, the trial judge in the actual Tincher case denied any relief to the defense. 

However, the trial court’s denial of the Defendant’s motion for post-trial relief has been reversed by the Pennsylvania Superior Court in its February 16, 2018 decision in Tincher v. Omega Flex, Inc., No. 1285 EDA 2016, 2018 Pa. Super. 33 (Pa. Super. Feb. 16, 2018 Lazarus, J., Platt, J., Strassburger, J.)(Op. by Lazarus, J.).   The Pennsylvania Superior Court particularly found fault with the trial court’s jury instructions with respect to standards for finding a "defect" and a new trial was ordered in light of the extensive changes that the Tincher Supreme Court decision made to Pennsylvania product liability law.

Notably, the Superior Court noted that the trial court’s jury instructions which relied, in part, on the law of the prior case of Azzarello v. Black Brothers, Inc., 391 A.2d 1020 (Pa. 1978), were “incorrect.”  Op. at p. 18.

The Superior Court in this Tincher opinion noted that “[t]he charge thus contained all of the product liability law under Azzarello that the Supreme Court has now disapproved, including a definition equating a defective product with one that “leaves the suppliers’ control lacking any element necessary to make it safe for its intended use,” and a declaration that a manufacturer “is really a guarantor of [a product’s] safety” but not “an insurer of [that] safety.”  Op. at p. 18.

The Superior Court, in no uncertain terms, emphasized that “[t]he Supreme Court has now overruled Azzarello and determined that this statement of product liability law was incorrect. The trial court’s jury charge, therefore, was erroneous.”  Op at p. 18.

The Tincher Superior Court went on to state, “Here, the trial court gave a charge on a determinative issue that failed to conform to the applicable law, as stated in Tincher.  We conclude, therefore, that the charge amounted to fundamental error.”  Op. at p. 20.

The court also noted, “[T]he trial court gave a charge under law that the Supreme Court has explicitly overruled in this very case. Such a charge would appear to be a paradigm example of fundamental error.”  Op. at p. 23.  The appellate court emphasized that the provision of an incorrect definition of a "defect" in conflict with the standards on the same set forth in Tincher required the granting of a new trial.

In the end, the Superior Court found that “[t]he trial court had no authority to deny a new trial on the basis of its own speculation about what the jury would do under the Supreme Court’s new formulation of the law.”  Op. at p. 27.  It further noted that “[t]he trial court’s declaration that the new legal reformulation resulting from the Supreme Court’s thorough and extensive decision … can cause no change to the verdict undervalues the importance of the Supreme Court’s decision.”  Op at p. 27.

The appellate court ultimately found that given that the jury instructions were incorrect under the new Tincher analysis, a new trial was required to be ordered.

The Superior Court otherwise confirmed that under the new Tincher analysis enunciated by the Pennsylvania Supreme Court, “only the fact-finder – in this case, the jury – may determine whether a product is defective.”  Op. at p. 28.

Anyone wishing to review the Pennsylvania Superior Court’s decision in Tincher may click this LINK.


Commentary:  In this new decision, the Superior Court makes clear that the Azzarello analysis and, therefore, any jury charge based upon that case, has been expressly “disapproved” by the Pennsylvania Supreme Court.  Accordingly, it appears that the Pennsylvania Standard Suggested Jury Instruction issued after the Supreme Court’s decision in Tincher purporting to restore the Azzarello formulation may be inconsistent with the new standards set down in Tincher.
Tort Talkers may recall that a committee of attorneys affiliated with the Pennsylvania Defense Institute formulated  alternative post-Tincher standard jury instructions that are represented to be consistent with the new analysis adopted by the Pennsylvania Supreme Court in Tincher.  A Link to these proposed jury instructions can be found HERE. 

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

Friday, February 16, 2018

Motion to Coordinate Post-Koken Actions Pending In Separate Counties Into One County Granted

In his recent decision in the case of Grimes v. Velez, No. 2016-CV-4071 (C.P. Lacka. Co. Jan. 22, 2018 Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas granted a Plaintiff’s Motion to Coordinate separate motor vehicle accident litigations filed in separate counties.   The court granted the motion under Pa. R.C.P. 213.1.  

By way of background, the entire case against the tortfeasor Defendant and the Plaintiff’s own UIM carrier initially began under a single Complaint filed in the Lackawanna County Court of Common Pleas.   However, the UIM carrier succeeded on Preliminary Objections to the Complaint on the basis that venue was improper in Lackawanna County under a forum selection clause.  The UIM portion of the case was therefore carved out and transferred to Monroe County.  

Through an error by the Lackawanna County Prothonotary, the entire case was transferred to Monroe County.   At that point, the Plaintiff filed a Motion to Consolidate the matters in Monroe County.   The Monroe County court denied the Plaintiff’s motion based upon a lack of jurisdiction over Defendant Velez given the mistake by the Lackawanna County Prothonotary in also transferring that part of the case.  The Monroe County Court directed that the tort claim against the tortfeasor defendant be transferred back to Lackawanna County.

Thereafter, the Plaintiff filed the subject Motion to Coordinate pursuant to Pa. R.C.P. 213.1 seeking a transfer of the tort claim back to Monroe County. 


Judge James A. Gibbons
Lackawanna County
 
In his decision, Judge Gibbons noted that the claims against the tortfeasor Defendant and the UIM carrier arose from the same occurrence, i.e., the same motor vehicle accident.   The court noted that this factor alone served as a basis for granting the coordination motion.   The court additionally noted that common questions of law or fact existed as well.  

On the issue of the convenience of parties, the Lackawanna County Court recognized that litigation in Monroe County would involve roughly one (1) hour of travel from Lackawanna County.

The ruling in favor of coordination was also compelled by the notion that only one trial should take place on the questions presented as they all arose out of the same accident.   The court additionally noted that it was likely that all of the witnesses and parties called to testify with respect to the tort action would also be called to testify with respect to the UIM action.  

Judge Gibbons rejected the tortfeasor’s Defendant’s claims of prejudice and unreasonable delay if he was required to defend the case in Monroe County.  

Lastly, the court found that the interest of judicial economy and the prevention of duplicative or inconsistent Orders weighed in favor of coordinating and transferring to Lackawanna County to the Monroe County case.  

For these reasons, the court granted the Plaintiff’s Motion for Coordination under Pa. R.C.P. 213.1.  


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

Mock Trial Jurors Needed for Semi-Final Round




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

In Lackawanna County, Attorneys are still needed to fill the Jury Boxes at the Lackawanna County Mock Trial Competition.   

These kids put hours and hours of preparation into their presentations.  It would be great for them if they could present their cases to a full Jury Box.  

If you can spare your time and expertise, it would be greatly appreciated if you could please volunteer to help the Competition by serving as a Juror.


LACKAWANNA COUNTY
MOCK TRIAL COMPETITION

Jurors needed for Semi-Final Round


Tuesday, February 20, 2018
Lackwanna County Court House

6:00 p.m.


To Sign Up to Serve as a Juror
Contact

  LBA at 570-969-9161 
or

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

Thursday, February 15, 2018

ERISA Plan Precluded From Pursuing Recovery From Third Party Settlement Due to Delay



In the case of Carpenter Technology Corp. v. Weida, 2018 W.L. 398297 (E.D. Pa. Jan. 11, 2018 Stengel, C.J.) (Mem. Op.), the court granted a Defendant’s Motion to Dismiss the Plaintiff’s action for equitable relief to enforce the terms and preserve the assets of an Employee Welfare Benefit Plan under the terms of the Employee Retirement Income Security Act (ERISA).  

The court explained that the Plaintiff, Carpenter Technology Corporation Health & Welfare Plan was a self-funded Employee Welfare Benefit Plan.   The plan contained a provision to fulfill ERISA’s requirement that such a plan be established and maintained by a written plan document.  That document contained an expressed provision indicating that Plan participants must fully reimburse the Plan from payments received from a settlement of personal injury claims against third parties.  

By way of further background, the Defendant in this matter was injured in a car accident. The Plan paid medical benefits on the injured party’s behalf.   The injured party filed suit against the tortfeasor and settled that action.  

The Plan then filed this suit asserting that the injured party was in possession of funds that belonged to the Plan and, through this lawsuit, the Plan was attempting to compel the injured party to reimburse the plan from the settlement proceeds.  

The Plan was seeking (1) an Order imposing a constructive trust and/or equitable lien in favor of the Plan against any settlement funds or any property into which the settlement funds had been converted by the injured party; (2) an Order enjoining the injured party from dissipating any of these settlement funds until the Plan’s rights could be adjudicated; (3) an Order enjoining the injured party from transferring or disposing of the settlement funds; and/or reasonable attorney’s fees and costs.  

In response, the injured party Defendant/Plan beneficiary filed the subject motion to dismiss which was granted by the court.  

In granting the Motion to Dismiss, the court noted that the ERISA Plan waited approximately nine (9) months after receiving notice from the injured party’s personal injury attorney of the pending third party settlement distribution before the Plan ever filed this Complaint for equitable relief.  

The Court also noted that, although the language of the Plan entitled the Plaintiff to relief, by the time the Plaintiff had filed this Complaint, the settlement proceeds, which had been deposited into a joint marital account, had already been dissipated.   The court additionally noted that, generally speaking, a joint property is protected from creditors for an individual spouse’s debt.  

Anyone wishing to review a copy of this decision may click this LINK.  The accompanying Order may be viewed HERE.

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

Wednesday, February 14, 2018

Update on Gallatin v. Garguilo Text Sender Liability Case

A recent update was provided on the Lawrence County case of Gallatin v. Gargiulo (C.P. Lawrence Co., 2016 Hodge, J.), in which that trial court allowed a lawsuit to proceed beyond the pleadings stage against a man who had texted a driver who was involved in a fatal accident allegedly at the time she received the text sent.

In the recent update, reference was made to reports that the court had since dismissed the claims asserted against the sender of the text.

Further investigation has confirmed that the case against the sender of the text was dismissed by Stipulation by the Plaintiff shortly before a Motion for Summary Judgment on the issue was to be argued to the court.  Defense counsel was prepared to argue that the Plaintiff failed to produce facts that the sender of the text knew that the recipient was driving at the time the text was sent.

ARTICLE: SPREAD A LITTLE LOVE


In honor of Valentine's Day, I figured I would re-run the below article of mine that previously appeared in the January 25, 2010 edition of the Pennsylvania Law Weekly,(c) 2009 Incisive Media US Properties, LLC (now known as American Law Media) as well as here on Tort Talk:


Spread A Little Love:

Being pleasant and considerate is part of being a professional

By Daniel E.Cummins
Special to the Law Weekly
DanCummins@comcast.net


The New Year is still in its early stages and, less than one month in, it's not too late to renew those resolutions you may have already broken.

With Valentine's Day approaching, consider the following ways to resolve to spread a little love in and out of your practice in the month of February and beyond:

Express Appreciation to Your Staff
Day in and day out your staff shows up to type your verbose and, at times, pompous-sounding legal dictation, replete with legalese and, at times, even Latin. Did you ever stop and wonder what they ever did in life to deserve the fate of listening to this drivel?

Daily expressions of gratitude towards your staff are warranted, for without them, your office could not function. Throw out a "nice job," "thanks for keeping up with the dictation," or "I appreciate you taking the initiative on that." Always say "please" and "thank you."

Return Phone Calls
It's rude not to return phone calls, even to those we'd rather not deal with. If you owe a return phone call that you are dreading, return it even if it means leaving a voice mail after hours in the hopes of not reaching the recipient. In the alternative, respond in writing if possible. Remember, every communication brings you one step closer to the end of that case and the end of dealing with that frustratingly aggravating attorney or client.

Show Interest in Others
See the person behind your opposing counsel -- and I don't mean their client. Take an interest in them. Ask about their family, their hobbies, their vacations or their life outside of work.

Be complimentary to others. One way is to make it a habit of complimenting other people's neckties where warranted. More often than not the person wearing the tie spent time picking it out and will appreciate it being noticed. It's probably best, however, not to point out the speck of mustard on the tie.

Be Considerate About Technology
Be considerate in communicating with others and ignore your cell phone or Blackberry when conversing. Answering your cell phone or constantly looking at your Blackberry while someone is talking to you is rude and signals that you are not interested in what they have to say. Why should they then have any interest in you or what you have to say?

Whatever is coming through to you on your portable device will still be there when your in-person conversation is over. Improve your interpersonal dealings with others by giving them your undivided attention.

Smile
In Dale Carnegie's classic book "How to Win Friends and Influence People," recommended here as an annual assignment for enjoyment and self-improvement, it is suggested that you greet everyone you contact with a smile. It shows you are friendly, welcomes and relaxes the recipient and opens them up to accepting the information you have to present to them.

Grant Professional Courtesies
Grant professional courtesies to others on a routine basis, as recommended by the Pennsylvania Bar Association's Rules on Professionalism. Remember, what goes around, comes around. Routinely sending out good karma may come back to you two-fold in the future when you most need it.

Show Gratitude to Your Spouse
Show some appreciation to your spouse or significant other for living with the demands of your chosen profession and for putting up with your jealous mistress (or gentleman caller), The Law. Take him or her out to dinner unexpectedly. Stay home on a Saturday. Throw in a little humor -- maybe even show your spouse some deference by beginning requests with, "May it please the spouse."

Think about the total energy, dedication and attention you put into trial preparation. When not bogged down by a trial or a deadline, refocus that energy and dedication on your family and friends. Aren't they just as worthy, if not more so, of that type of attention from you?

Take Care of Yourself
Take pains to make yourself more "lovable" (well -- we're lawyers -- let's try for "likeable") by purposefully getting away from the practice of law, whether it be on vacation or simply "me" time with friends and family. Exercise away the frustrations of the practice of law. Play hooky and take a "mental health" day and do something you enjoy that maybe you haven't done in years. Read good prose for enjoyment's sake. It may even serve to help your own writing abilities.

Efforts to escape and focus on yourself on occasion, along with the other good habits noted above, can only result in easing the stress of this profession, make you a more enjoyable person to be around and may even serve to increase your productivity as an attorney. •


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley, Comerford, & Cummins. Cummins' civil litigation blog, "Tort Talk," may be viewed at http://www.torttalk.com/.  

Cummins is also available to serve as a Mediator through Cummins Mediation Services (www.cumminsmediationservices.com).

Tuesday, February 13, 2018

Superior Court Confirms that Fair Share Act Applies in Products Liability Cases

In the Asbestos litigation case of Roverano v. John Crane, Inc., et al., No. 2837 EDA 2017 (Pa.Super. Dec. 27, 2017), the Pennsylvania Supreme Court clarified that the Fair Share Act applies to products liability cases.

The court rejected arguments that the rule for apportioning liability amongst co-defendants did not apply in the context of strict liability cases.  The Superior Court remanded the case back to the trial court for a decision on how fault should actually be distributed amongst the parties.

A copy of the Superior Court's per curiam decision may be viewed HERE.

(Per curiam means "by the court," i.e. a unanimous decision by the court that does not identify the author but presents the decision as a court's opinion in the name of the court as opposed to a specific judge.  (I had to Google this definition to remind myself what per curiam meant)).

Judge Solano's Concurring and Dissenting Opinion can be viewed HERE.

Friday, February 9, 2018

MOCK TRIAL JURORS NEEDED - CAN YOU HELP?




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

Locally, Attorneys are still needed to fill the Jury Boxes at the Lackawanna County Mock Trial Competition in the state and federal courthouses in Scranton, PA.   

These kids put hours and hours of preparation into their presentations.  It would be great for them if they could present their cases to a full Jury Box.  

If you can spare your time and expertise, it would be greatly appreciated if you could please volunteer to help the Competition by serving as a Juror.


LACKAWANNA COUNTY
MOCK TRIAL COMPETITION

Jurors needed for Round II

Tuesday, February 13, 2018

6:00 p.m.


To Sign Up to Serve as a Juror
Contact

  LBA at 570-969-9161 
or

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

Thursday, February 8, 2018

Judge Gelb Addresses Issue of Apparent First Impression Relative to Umbrella Policy

In the case of Charles v. USAA, No. 7106 - CV - 2016 (C.P. Luz. Co. March 3, 2017 Gelb, J.), Judge Lesa Gelb of the Luzerne County Court of Common Pleas ruled in favor of the carrier in a declaratory judgment action filed by a Plaintiff seeking a decision regarding the applicability of a personal umbrella policy to wrongful death claims arising out of a motor vehicle accident as asserted by the children of decedent, Janice Lewis, against her husband (deceased), the owner of the policy.

According to the Opinion, the decedent, Janice Lewis, was a passenger in a vehicle driven by her husband, Kenneth Lewis, when that vehicle was involved in an accident with another vehicle.  Both Janice and Kenneth Lewis were fatally injured in the accident.

At the time of his death, Kenneth Lewis was insured by USAA  through automobile, homeowners, and personal umbrella insurance policies.  The Plaintiffs submitted various claims to USAA for consideration.

USAA agreed to tender the limits under the automobile insurance policy.

However, USAA advised that it would not extend benefits for the death of Janice Lewis under the personal umbrella policy of Kenneth Lewis.  The carrier pointed to an Exclusion in the umbrella policy for the bodily or personal injury of any insured under the policy.  The Plaintiffs argued that none of the wrongful death beneficiaries were "insureds" under the umbrella policy and that they were, therefore, not subject to the Exclusion and should be entitled to recover under that policy.

The issue came before the court on cross motions for summary judgment.

After reviewing applicable Pennsylvania law concerning the construction of insurance policy contracts as applied to the provisions at issue in this case, Judge Gelb ruled that the language of the umbrella policy, including the definition of "bodily injury" and the relevant Exclusion against recovery by insureds, when reviewed in conjunction with the nature of the Pennsylvania Wrongful Death Statute, compelled her decision to uphold the carrier's denial of coverage.

More specifically, the court noted that the covered bodily injury in this case, as per the policy provisions, is that of the decedent, Janice Lewis, who was an insured under the umbrella policy.  Therefore, under the clear and unambiguous language of the umbrella policy, the Exclusion against coverage for bodily injury incurred by an insured was applicable to preclude coverage under the facts presented.

Judge Lesa Gelb
Luzerne County
Judge Gelb also noted that, under Pennsylvania law, while a wrongful death action is not derivative of the decedent's rights, it is derivative of the decedent's injuries.  Accordingly, the court reiterated that it followed that, as the wrongful death action in this matter arose out of a bodily injury occurring to an insured, coverage for the same under the umbrella policy was precluded by the Exclusion noted.

The court also dealt with an apparent issue of first impression raised by the Plaintiffs.  The Plaintiffs alleged that the Lewis's children suffered emotional harm resulting from their mother's death, which is a recoverable element of damages pursuant to the Wrongful Death Statute, which claim allegedly should serve to trigger coverage under the umbrella policy.

However, Judge Gelb noted that the Plaintiffs did not allege any physical injury to the children from which the emotional harm allegedly manifested.  It was emphasized that the protections of the umbrella policy required a physical injury in order to trigger coverage and the only physical injury or injuries at issue in this case were those of the deceased mother, who as an insured, was excluded from coverage under the personal umbrella policy.

As such, the court granted the carrier's motion for summary judgment and denied the Plaintiff's motion for summary judgment.

Anyone wishing to review this decision by Judge Gelb may click this LINK.

Wednesday, February 7, 2018

Supplemental Deposition of Med Mal Defendant Allowed On Limited Basis


In the medical malpractice case of Venosh v. Henzes, No. 11 - CV - 3058 (C.P. Lacka. Co. Jan. 18, 2018 Nealon, J.), the Lackawanna County Court of Common Pleas granted in part and denied in part a Plaintiff's motion to compel relative to requested additional discovery responses from, and a supplemental deposition of, a defendant doctor.

In this case, the Plaintiff attempted to secure the additional deposition of the doctor after the Plaintiff had certified the case for trial under a certification that all discovery had been completed.  The Plaintiff wished to depose the doctor on a written statement he had made to a health insurer relative ot an internal quality-of-care review of the treatment provided to the Plaintiff.

The court allowed the deposition but circumscribed the scope of the questioning to a very narrow issue.  The court noted that no prejudice was established relative to the additional discovery, particularly since the trial date was still nine months into the future.

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

Monday, February 5, 2018

Pennsylvania Supreme Court to Address Attorney-Client Privilege/Attorney Work Product Doctrine Issues

On January 30, 2018, the Pennsylvania Supreme Court issued a per curiam Order agreeing to hear the appeal on the case of BouSamra v. Excela Health, No. 318 WAL 2017 (Pa. Jan. 30, 2018), to hear argument on the issue of whether a law firm’s sending of pre-litigation emails to a public relations firm serves to waive the attorney work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, to qualify as a privileged person.  

Tort Talkers may recall that the Pennsylvania Superior Court previously determined in this case that emails involving an internal investigation that were sent by a hospital’s attorney to a public relations firm were not barred from discovery under the attorney-client privilege or the work-product doctrine.  Here is a LINK to the Tort Talk blog post on that decision.

Anyone wishing to review a copy of the Pennsylvania Supreme Court's Order granting the appeal may click this LINK.


Source:  “Justices to Eye Discoverability of Emails Between Hospital Counsel and PR Firm” by Max Mitchell of The Legal Intelligencer (Feb. 1, 2018).   

Can You Help Out As Juror for the High School Mock Trial Program?




The High School Mock Trial Competition is continuing 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.  I am hoping to generate interest and support in this proposal from Attorney Organizations and members of the Bar all around the Commonwealth.

Locally, Attorneys are still needed to fill the Jury Boxes at the Lackawanna County Mock Trial Competition in the state and federal courthouses in Scranton, PA.   I note that there were, on average, only 3-4 Jurors in the box at each of the six trials that took place last week.

These kids put hours and hours of preparation into their presentations.  It would be great for them if they could present their cases to a full Jury Box.  If you can spare your time and expertise, it would be greatly appreciated if you could please volunteer to help the Competition by serving as a Juror.
 

 
LACKAWANNA COUNTY
MOCK TRIAL COMPETITION
 

 

Jurors needed for Round II
Wednesday, February 7, 2018

6:00 p.m.


To Sign Up to Serve as a Juror
 
Contact

  LBA at 570-969-9161 
or

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



Jurors Will Also Be Needed in Additional Rounds Next Week