Friday, March 16, 2018



Whenever possible try to be specific in your writing.  Being more specific brings clarity to your writing.

When describing people in your briefs or letters, it helps the reader to follow your train of thought when you use a person's name regularly in conjunction with repeated references to them as "the Plaintiff" or "the Defendant," as opposed to pronouns such as he, she, his, or her, etc.

For example, rather than saying "the injured party," periodically refer to "the Plaintiff, John Smith."  Instead of repeating a general reference to "the tortfeasor," or "the liable party," refer to the "Defendant, Jane Jones" or if there is only one defendant, simply reference "the Defendant."

In appellate briefs, an argument may be easier to follow if "Plaintiff" or "Defendant" is used as opposed to "Appellant" or "Appellee."  Some recommend that "Appellant" or "Appellee" never be used.  The use of "Appellant" or "Appellee" disrupts the flow of the reader's reading of the brief as they may have to look back up earlier in the brief for a reminder as to which party filed the appeal at issue.

During one of your multiple edits of a brief or letter, it may pay to focus one of those edits on skimming through the written product to specifically look for pronouns and asking if that sentence can be made more clear by the insertion of a more specific identification of a person in the place of a she, he, his, or her designation.

Being more specific in your writing will foster clarity in your letters and briefs and will enable your audience to easily understand your summary or argument.

Thursday, March 15, 2018

Post-Koken Scorecard and Facebook Discovery Scorecard Updated on Tort Talk Blog

Both the Tort Talk Post-Koken Scorecard and the Tort Talk Facebook Discovery Scorecard were recently updated.  To view, click on the Scorecard titles in the previous sentence.

The Post-Koken Scorecard and the Facebook Discovery Scorecard are also always freely accessible by going to and scrolling down the right hand column of the blog and clicking on the dates noted under "Post-Koken Scorecard" and "Facebook Discovery Scorecard."

I ask that Tort Talkers please continue to forward to my attention a copy of any Orders or Opinions you may generate on Post-Koken or Facebook Discovery issues in order that these Scorecards may be continually updated for the benefit of all

There is still a dearth of appellate cases on these areas of the law and, until appellate decisions are handed down, the resolution of these issues will handled on a county-by-county basis depending upon how the trial court judges of a particular county have previously decided (and there are still some splits of authority within certain counties on certain issues).

Thank you for reading Tort Talk and supporting the blog with your submissions.

Wednesday, March 14, 2018

Pennsylvania Superior Court Addresses Standards for Applying Doctrine of Forum Non Conveniens

In the case of Moody v. Lehigh Valley Hospital-Cedar Crest, No. 3580 EDA 2016 (Pa. Super. Jan. 18, 2018 Bowes, J. Lazarus, J. and Blatt, J.) (Op. by Bowes, J.), the Superior Court found that the trial court applied the wrong legal standard in applying the doctrine of Forum Non Conveniens.  

This Opinion provides a nice overview of the current status of the law supporting doctrine of Forum Non Conveniens.  

The court in Moody held that multiple medical malpractice Defendants may be sued in any county where venue is proper against any one Defendant, subject to the doctrine of Forum Non Conveniens.

Here, the court found that the claims asserted by the Plaintiff against one Philadelphia Defendant were not fabricated such that the claims against the Defendant in the Plaintiff’s chosen venue were not incidental or tangential.  

The court otherwise noted that the fact that all but one of the Defendants were in a different county was not controlling on the issues presented. 

The Superior Court additionally noted that the trial should not have decided the Motion for Transfer of Venue under the doctrine of Forum Non Conveniens without allowing additional discovery to be secured from most of the Defendants.  

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 the law firm of Reed Smith for bringing this case to my attention. 

Proper Venue in a Medical Malpractice Claim

In the case of Kellock v. Wilkes-Barre Hospital Company, LLC, No. 17-CV-4655 (C.P. Lacka. Co. Feb. 20, 2018 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed Preliminary Objections filed by hospital Defendants in a medical malpractice action in which the Defendants asserted improper venue of the case. 

According to the Opinion, the hospital Defendants were relying upon Pa. R.C.P. 1006(a.1), which provides that a medical professional liability action may be brought “only in a county in which the cause of action arose.” 

The Defendant hospitals asserted that, according to the allegations of the Plaintiff’s Complaint, the negligent acts and/or omissions occurred in Luzerne County and that Lackawanna County, where this case was filed, only had tangential or peripheral contact with the tort claims.  

The court reviewed the allegations before it and noted that the Plaintiff’s Complaint asserted negligent acts against the Luzerne County healthcare professionals with regards to the birth of the Plaintiff’s child.   However, the Plaintiffs also alleged that, after their newborn was transferred to the Lackawanna County hospital within 4 ½ hours of birth, the Lackawanna County medical professionals also allegedly deviated from the standard of care pertaining to the additional treatment provided.  

Based upon the allegations in the Plaintiff’s Complaint, Judge Nealon found that negligent healthcare services were allegedly also furnished in Lackawanna County such that the malpractice cause of action against the Lackawanna County hospital arose in the form of Lackawanna County. 

The court went on to note that, pursuant to Pa. R.C.P. 1006(c)(2), provides that an action seeking to enforce joint and several liability against multiple Defendants may be brought in any county in which venue is proper against any one Defendant.  

Accordingly, the court ruled that, since venue was proper in Lackawanna County as to the Lackawanna County Defendants, and given that the Plaintiffs have asserted joint and several liability against the Luzerne County and Lackawanna County Defendants, venue was found to be proper in Lackawanna County for all Defendants under the rules stated above.   

Consequently, the court overruled the Defendants’ Preliminary Objections asserting improper venue. 

 Anyone wishing to review this case may click this LINK.

Monday, March 12, 2018

Mock Trial Jurors Needed for Regional Finals

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 in Northeastern Pennsylvania, Attorneys are still needed to fill the Jury Box for the Finals of the Regional 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.


Jurors needed for Final Round

Wednesday, March 14, 2018
William J. Nealon Federal Courthouse

6:00 p.m.

To Sign Up to Serve as a Juror

  LBA at 570-969-9161 

Jennifer Menichini

Superior Court Affiims That Discovery Rule Does Not Extend Statute of Limitations in Wrongful Death/Survival Actions (Non-Precedential)

Tort Talkers may recall the prior Tort Talk post on the decision of Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Estate of Marsh v. Lizza, No. 2106-CV-2812 (C.P. Lacka. Co. March 1, 2017 Nealon, J.) in which the court granted Preliminary Objections of a Defendant in a case where a Plaintiff attempted to substitute another party in a reissued Writ of Summons without the consent of the opposing parties or court and beyond the applicable statute of limitations in this wrongful death and survival action.  

As an update, it is noted that the Pennsylvania Superior Court has affirmed the trial court’s decision in a non-precedential Opinion under the caption of Marsh v. Lizza, No. 532 MDA 2017 (Pa. Super. Feb. 13, 2018 Olson, J., Dubow, J., and Strasberger, J.) (Non-Precedential Mem. Op. by Olson, J.).

Notably, in affirming the trial court’s decision, the Pennsylvania Superior Court agreed that the 2-year statute of limitations applicable to wrongful death and survival actions under 42 Pa. C.S.A. §5524(2) may not be extended by the discovery rule, and that the latest date on which the statue of limitations begins to run for wrongful death and survival claims is the date of the decedent’s death.  

Accordingly, the Superior Court found that, as a matter of law, the trial court properly sustained a Defendant’s Preliminary Objections and struck the Complaint.  

 Anyone wishing to review the Pennsylvania Superior Court's Non-Precedential Decision in this case may click this LINK.

Friday, March 9, 2018

Punitive Damages Claim Allowed to Proceed Where Tractor Trailer Driver Allegedly Fell Asleep At Wheel

In his recent decision in the case of Delamarter v. Couglar and Cargo Transporters, Inc., No. 3:16-CV-665 (M.D. Pa. July 21, 2016 Munley, J.), Judge James M. Munley of the United States District Court of the Middle District of Pennsylvania granted in part and denied a Defendant’s Motion For Summary Judgment relative to a Plaintiffs’ punitive damages claims in a trucking accident case.  The court also denied the Defendant's Motion to Bifurcate the trial with respect to the punitive damages claims.  

According to the Opinion, the Plaintiff alleged that the Defendants negligently operated a tractor trailer during which the Defendant driver allegedly fell asleep at the wheel and, therefore, failed to slow down or stop in anticipation of the traffic ahead.   The rear end accident occurred on interstate highway. 

The court noted that, at the time of the accident, there was ongoing construction on the interstate highway that reduced the highway to a single lane.   The Plaintiff had stopped in the construction zone due to an earlier, unrelated accident.  The Defendant tractor trailer driver allegedly fell asleep at the wheel and struck the rear of the Plaintiff’s vehicle during the course of the accident.  

The Plaintiff alleged that the tractor trailer driver acted recklessly by driving while fatigued and while falling asleep, which allegedly amounted to outrageous conduct on the part of the tractor trailer driver.   The Plaintiff further asserted that the tractor trailer driver’s reckless conduct violated various federal and state statutes.   

In reviewing the record, the court pointed to facts brought to light during discovery that raised issues of fact as to whether the Defendant acted recklessly.  In particular, the court noted that there were facts discovered that could support the Plaintiff's argument that the Defendant tractor trailer driver was fatigued, had possibly fallen asleep at the wheel immediately before the accident, and that the tractor trailer driver appreciated the risk posed to others on the highway by his driving in a fatigued state. 

Accordingly, the court found that such issues of material fact were sufficient to allow the claims for punitive damages to proceed against the tractor trailer driver.  

Judge Munley also ruled that the Defendant tractor trailer driver's employer could be held vicariously liable for punitive damages if the tractor trailer driver was hit with such damages by the jury.

However, the court granted the Defendant's Motion for Summary Judgment with regards to the Plaintiff's direct claim against the tractor trailer driver's employer for punitive damages.  The court ruled that there was no evidence presented to establish that the employer knew, or should have known, that its tractor trailer driver would drive in a fatigued state at the time the accident occurred.

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

Judge Munley's prior decision on similar issues in the case at the Motion to Dismiss stage can be viewed in this TORT TALK Blog Post, which also contains a Link to that prior decision.

I send thanks to Attorney James J. Conaboy of the Scranton law firm of Abrahamsen, Conaboy and Abrahamsen for bringing this case to my attention.  

Thursday, March 8, 2018

Punitive Damages Claims Allowed to Proceed Based Upon Distracted Driving Due to Cell Phone Use

In the case of Hilliard v. Panezich, No. 1988 of 2015 (C.P. Lawrence Co. Dec. 1, 2017 Cox, J.), the court denied a Defendant’s Motion for Partial Summary Judgment filed by a Defendant in an automobile accident case where the Plaintiff alleged that the Defendant was driving under the influence of marijuana and was also engaged in distracting driving due to looking down at his cell phone on his lap at the time of the accident.  

The court noted that the record before it contained evidence of recklessness including lab results indicated intoxication of the Defendant, the Defendant’s admission of a pattern of driving after smoking marijuana in the past, that the Defendant was traveling at 50 mph in a 45 mph speed limit zone, that the Defendant failed to observe a stop sign, and that the Defendant had looked at his phone on his lap to change music at the time of the accident.

In his decision, Judge Cox noted that Pennsylvania appellate courts have not yet addressed the issue of what standards allow for punitive damages claims to be raised in conjunction with fact patterns involving distracted driving and cellular phones.  

Judge Cox went on to review a number of state and federal trial court decisions from across the Commonwealth of Pennsylvania which have indicated that additional allegations of recklessness beyond mere cell phone use may be required to allow a punitive damages claim to proceed beyond the summary judgment stage.   As noted above, the court also noted the above additional factors raised in this particular case to allow the punitive damages claim to move forward.  

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

Source: “Digest of Recent Cases,” Pennsylvania Law Weekly (January 9, 2018).

Tuesday, March 6, 2018

Pennsylvania Superior Court Rules That Failure to Pretreat a Surface Prior to Winter Storm Is Not a Basis to Impose Liability in a Slip and Fall Case

A Blizzard in Progress

In the case of Collins v. Phila. Sub. Devel., No. 2018 Pa. Super. 17 (Pa. Super. Jan. 31, 2018 Panella, J., Olson, J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.), the court affirmed the entry of summary judgment in favor of a premises liability Defendant under the Hills and Ridges Doctrine where the evidence before the trial court confirmed that the winter storm, described in the record as a blizzard, was still active a the time of the Plaintiff's alleged slip and fall on ice and/or snow.

According to the Opinion, there was even a video of the Plaintiff's slip and fall in which it could be seen that it was still snowing at the time of the incident.  The trial court had concluded that no reasonable person viewing the video could conclude that the weather conditions at the time of the fall were anything other than a blizzard.

As generally slippery conditions were being created at the time of the Plaintiff's fall, the Superior Court agreed with the trial court's decision that the Hills and Ridges Doctrine defeated the Plaintiff's claim.

The decision is also notable for the court's ruling that the Defendant's alleged failure to pretreat a walking surface was not a basis upon which to impose liability under Pennsylvania law.

The court rejected the Plaintiff's efforts to assert that, under an exception to the Hills and Ridges Doctrine, the dangerous condition was created by the negligence of the landowner in failing to pretreat the surface with ice melt products prior to the anticipated storm.  The court found that this theory did not fall within the neglect of the defendant exception to the Hills and Ridges Doctrine.

The Collins referenced a prior Superior Court decision noting that there is no duty imposed to salt an area during a snowstorm or even immediately thereafter;  rather, the landowner is entitled to a reasonable time to take action.  See Op. at p. 12-13.  As such, the court found that Pennsylvania law does not impose any duty on landowners to pretreat surfaces in anticipation of an impending winter storm.

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

Source:  "Court Summaries" by Timothy Clawges in the Pennsylvania Bar News Vol. 28, No. 4 (Feb. 19, 2018)


I welcome the opportunity to assist you in settling your case through CUMMINS MEDIATION SERVICES (

I am pleased to report that the handful of mediations that I have handled since the beginning of this year have all resulted in settlements.  Please let me know if I may assist you in bringing your case to a close.

To schedule a Mediation, please contact me at or at 570-346-0745.

Resume and fee schedule available upon request.

Friday, March 2, 2018

Judge Mannion of Federal Middle District Court Addresses Punitive Damages Claims in Products Liability Context

In the case of Dyvex Industries, Inc. v. Agilex Flavors & Fragrances, Inc., No. 12 - CV - 0979 (M.D. Pa. Feb. 12, 2018 Mannion, J.), Judge Malachy E. Mannion of the Federal Middle District Court of Pennsylvania addressed the current status of punitive damages law in the context of a products liability case. Ultimately, the court found that the Plaintiff failed to plead facts sufficient to support a claim for punitive damages under the case presented.  

Generally speaking, the court noted that Plaintiff law requires conduct on the part of a Defendant that is so outrageous as to demonstrate willful, wanton, or reckless conduct.   The law also requires that a subjective appreciation of the risk of danger is also necessary to support such a claim.  

In this case, the court found that, since the moving Defendant did not retain any control over any aspect of the manufacturing of the subject product, that Defendant could not be found to have had the requisite culpable mental state to support a claim of punitive damages against the Defendant.  The court also noted that the record revealed that this Defendant was in compliance with all applicable regulations.  
Judge Malachy E. Mannion
M.D. Pa.
Judge Mannion otherwise noted that entering the law does not allow for punitive damages under a claim of a breach of contract.  

Ultimately, the court found that the evidence revealed that, at most, the moving Defendant’s conduct amounted to negligence, which is insufficient to support a claim for punitive damages as a matter of law.  

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 the law firm of Reed Smith for bringing this case to my attention.