Monday, September 16, 2019

Time To Start Trying to Settle Cases Before the End of the Year



Need help bringing your case to a close?  Please consider utilizing CUMMINS MEDIATION SERVICES.

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

Resume and fee schedule available upon request.

Seeing Accident of Loved One on IPhone App Map Does Not Support Negligent Infliction of Emotional Distress Claim


In the case of Jenson v. St. Louis, No. 3:19-cv-00515 (M.D. Pa. Aug. 9, 2019 Munley, J.), the court granted in part and denied in part a Motion to Dismiss a Plaintiff’s negligent infliction of emotional distress claim in a fatal trucking accident matter.  

According to the Opinion, prior to the day of the accident, the decedent would always call his fiance when he arrived at work.  On the day of the accident, when the decedent did not call, his fiance used a smartphone application to locate the decedent's cellular phone.  The application displayed a map that indicated that the phone, and therefore, the decedent, were located at the scene of a crash.

The Plaintiff-fiance alleged in the Complaint that she suffered a direct and immediate shock by this contemporaneous and sensory observance of the fatal collision through her iPhone.

Judge James M. Munley of the Federal Middle District Court found that these facts did not support an allegation of the required contemporaneous perception element of a cause of action for negligent infliction of emotional distress. 

The Court emphasized that the Plaintiff did not witness the accident but only saw a reporting of the accident on her phone after the fact.  This was found to be insufficient to support the element of contemporaneous observance of an accident necessary to support a claim for negligent infliction of emotional distress.  

The court analogized this case to those cases in which this type of claim was dismissed where a plaintiff received a phone call from a hospital indicating that a loved one had been in an accident.

Given his ruling on this aspect of the claim, Judge Munley did not reach the issue of whether this Plaintiff's status as the fiance of the decedent was a close enough relationship to support the requirement under the claim of negligent infliction of emotional distress that one suffer from a contemporaneous observance of an injury to a close relative in order to present such a claim.

The court allowed the remaining claims by other Plaintiffs to proceed, including a claim of punitive damages in a case where a trucker attempted to merge back onto the Northeast Extension of the Pennsylvania Turnpike under dark conditions and with no lights illuminating the sides of the trailer portion of the tractor trailer at the time of the accident.

Anyone wishing to review a copy of this decision may click this LINK.  Here is a LINK to the companion Order.

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


Thursday, September 12, 2019

Third Circuit Holds: No Coverage, No Bad Faith


In the case of 631 M. Broad St. v. Commonwealth Land Title Ins. Co., No. 18-3094 (3d Cir. July 26, 2019 Fuentes, J., McKee, J., and Schwartz, J.), the court affirmed a district court’s entry of summary judgment in favor of a carrier in a title insurance bad faith case.

Notably, after agreeing that there was no coverage obligation and, therefore, no duty to defend under the policy, the third circuit stated, “…since the [D]istrict Court correctly concluded that [the carrier] had no duty to defend, there could be no bad faith claim against [the carrier].”  

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


I send thanks to Attorney Lee Applebaum, the writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law blog and from the Philadelphia law firm of Fineman, Krekstein & Harris for bringing this case to my attention.  



Tuesday, September 10, 2019

SAVE THE DATE: Lackawanna Pro Bono Fundraising Gala - October 18, 2019




Claims of Reckless Conduct Allowed to Proceed in MVA Case Involving Pedestrian





In the case of Nebesky v. Pagnotti, No. 2019-CV-3170 (C.P. Lacka. Co. Aug. 15, 2019 Gibbons, J.), the court addressed Preliminary Objections filed against a civil litigation Complaint in which the Plaintiff alleged allegations of recklessness in addition to allegations of negligence in a motor vehicle accident case involving a pedestrian Plaintiff.

The tortfeasor Defendant filed Preliminary Objections seeking to strike the claims of recklessness that were “sprinkled” throughout the Complaint.   The tortfeasor Defendant asserted that the Plaintiff failed to allege sufficient facts to support claims of reckless conduct which, according to the court, arguably could lay a foundation for later claims for punitive damages.   The court did note that the Complaint did not seek the imposition of punitive damages at this time.  

In response to the Defendant’s demurrer, the court generally noted that claims for punitive damages must be supported by evidence sufficient to establish outrageous conduct and that the Defendant had a subjective appreciation of the risk of harm and that the Defendant acted or failed to act in conscious disregard of that risk.

However, the court also stated that, under Pa. R.C.P. 1019(b), allegations pertaining to “[m]alice, intent, knowledge and other conditions of the mind may be averred generally.”   The court noted that an example of a condition of the mind that may be averred generally involved states of mind associated with wanton conduct.  

Consistent with other decisions out of the Lackawanna County Court of Common Please, Judge Gibbons in this Nebesky case went on to reason that, because recklessness is also known as “wanton willful misconduct,” recklessness is a condition of the mind that may be alleged generally in a Complaint.  

As such, the court denied the Preliminary Objections filed in this regard but noted that the Defendants retained the right to revisit the validity of such claims at the Motion for Summary Judgment stage once discovery has been completed. 

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

Friday, September 6, 2019

ARTICLE: "Litigating the Zero Verdict" by Daniel E. Cummins and Stephen T. Kopko


Here is a LINK to the Pennsylvania Lawyer magazine article written by Daniel E. Cummins and Stephen T. Kopko both of the Scranton insurance defense firm of Foley, Comerford & Cummins entitled "Litigating the Zero Verdict."

The article provides an overview of the propriety or impropriety of zero verdicts by juries under different circumstances in personal injury matters.  The article also reviews the variety of arguments that can be raised by both sides in support of either affirming or overturning such a verdict based upon the facts of the case.

We thank Patricia Graybill, the editor of the Pennsylvania Lawyer magazine for selecting this article for publication.

To review additional zero verdict cases here on Tort Talk, please click HERE.

Wednesday, September 4, 2019

Trial Judge's Reduction of Punitive Damages Award Overturned by Third Circuit Court of Appeals


In the case of Jester v. Hutt, 2019 U.S. App. Lexis 25998 (3d Cir. Aug. 28, 2019 Hardiman, J., Porter, J., Cowen, J.), the Third Circuit Court of Appeals vacated a granting of a motion for remittitur by the trial court that served to substantially reduce an award in favor of the Plaintiff.

According to the Opinion, the trial court had found that an award of $90,000.00 for punitive damages in a defamation case was constitutionally excessive where the jury only awarded $1.00 in actual damages.  The punitive damages award was reduced to $5,500.00.

The Third Circuit overturned the trial court and ruled that the constitutional ratio test for punitive damages does not apply to awards of nominal damages.  Higher ratios between nominal awards and punitive awards are to be expected. 


The Third Circuit reiterated that the touchstone for constitutional scrutiny of punitive damages awards is reasonableness.  The Court in Jester also noted that a comparison to similar cases is an accepted method of judging excessiveness of awards.

The Jester decision may be reviewed HERE.

I send thanks to Attorney James M. Beck, of the Philadelphia office of the Reed Smith law firm and the writer of the excellent Drug and Device Law blog for bringing this case to my attention.



Thursday, August 29, 2019

Judge Jones of Federal Middle District Addresses Motions to Dismiss in Lawsuit Arising Out of Alleged Sexual Assault on College Campus


In the case of Kennedy v. Gettysburg College, No. 1:19-CV-703 (M.D. Pa. Aug. 6, 2019 Jones, J.), the court granted in part and denied in part Motions to Dismiss filed by various Defendants in a case of alleged sexual assault at a college. 

According to the Opinion, the Plaintiff filed suit against the college alleging causes of action including a violation of Title IX, violation of the Plaintiff’s right to equal protection pursuant to 42 U.S.C. §1983 against the college, sexual assault, sexual abuse, and battery, along with negligent hiring and supervision and other counts. The Complaint also seeks punitive damages against the college and the college’s alumni association. 

The various Defendants, including the college, the alumni association, and the individual Defendant, filed a series of Motions to Dismiss. 

Among other rulings, the court rejected the college’s argument that it could not be responsible for the acts of a student at a party off campus and/or that Title IX does not apply to a non-student (the Plaintiff in this case was visiting her brother at college). 

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

I send thanks to Attorney Charles L. Leone of the law office of Lewis R. Busico in Newtown, Pennsylvania for bringing this case to my attention.




Judge Brann of Federal Middle District Issues Opinion Addressing Motions to Dismiss and/or Stay in College Hazing Case



In the case of Piazza v. Young, No. 4:19-cv-00128 (M.D. Pa. Aug. 27, 2019 Brann, J.), the court addressed various Motions to Dismiss and Motions to Stay in a civil lawsuit arising out of the fatal injuries sustained by a student at Penn State allegedly as a result of hazing activities in a fraternity.  The court granted the motions in part and denied the motions in part.  

Of note, with respect to those fraternity brothers Defendants who were under the age of 21, the court allowed the claims of the Plaintiff to proceed against those underaged Defendants under the Plaintiff’s theory of recovery to hold the Defendants liable for breaching an alleged protective duty that the Defendants, as fraternity members, allegedly owed to the Plaintiff’s son, a fraternity pledge. 

Judge Matthew W. Brann
M.D. Pa.
In this regard, Judge Brann refused to apply the Pennsylvania Supreme Court’s decision in the case of Kapres v. Heller, 640 A.2d 888 (Pa. 1994) in as an expansive manner as requested by those moving Defendants who were under the age of 21.   Under the Kapres case, the Pennsylvania Supreme Court generally ruled that individuals under the age of 21 cannot be held liable under the social host doctrine to a guest or third party injured on the premises relative to the service of  alcohol. 

The court in this Piazza case refused to read the Kapres case as immunizing the fraternity Defendants in this case from alleged liability for their otherwise allegedly wrongful conduct that involved the provision of alcohol.   See Op. at 16-18.  The court also noted that an expansive reading of the Kapres decision in the context of this case would not sever to further the social utility of the Pennsylvania statutes against hazing activities.

However, the court did otherwise note that the Plaintiff’s separate claim for negligence per se relative to the service of alcohol asserted against the fraternity Defendants who were under the age of 21 should be dismissed under the rationale Kapres case.  

This Opinion is also notable for the court’s review of the law pertaining to allegations of breach and causation, hazing allegations, allegations of civil conspiracy and claims of battery and intentional infliction of emotional distress.  

The court ruled that those defendants who acted to aid plaintiff after his accident can be liable under Restatement §§323, 324A for negligently failing to seek professional medical help.  However, the court found that other defendants who did not act to aid the Plaintiff could not be found to be liable for failing to render any aid as there is no cognizable duty under these facts to rescue in the first place.

Judge Brann also found that a negligence per se claim based upon an alleged violation of Pennsylvania’s anti-hazing statute is a viable claim. 

The Plaintiff’s intentional infliction of emotional distress claim was dismissed under the rationale that an alleged attempted cover up of the incident did not amount to an intent to inflict emotional distress on anyone.
The court additionally denied the Motion to Dismiss the claims of punitive damages asserted in this matter.   The court noted that it has routinely declined to dismiss punitive damages demands at the Motion to Dismiss stage of the case and prior to discovery.  

Judge Brann also addressed separate Motions to Stay filed by several Defendants who have been criminally charged arising out of the same incident.  

On this issue, the court reviewed the six (6) factors required under the case of Barker v. Kane, 49 F.Supp. 3rd 521, 525-26 (M.D. Pa. 2016) and granted this in part and denied it in part.   Essentially, the court denied the request to stay the matter but crafted the remedy that entitles certain Defendants to exercise their right against self-incrimination.   The court noted that certain Defendants would not be required to  answer any pleadings or discovery or participate in any depositions that would implicate their Fifth Amendment Right against self-incrimination by engaging in such pleadings and discovery.  

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

Judge Zulick of Monroe County Addresses Services of Process on Out-of-State Defendants


In the case of Pacheco v. Pacheco, No. 5445-CV-2018 (C.P. Monroe Co. July 1, 2019 Zulick, J.), the court dismissed a motor vehicle accident after finding that the Plaintiffs failed to establish that they attempted service upon the Defendants in good faith.  

The court noted that the Defendants resided in another state and the Plaintiffs had attempted to serve them by certified mail.  

The case arose out of a motor vehicle accident that occurred in July of 2016. 

The certified mail return receipt for one (1) Defendant was signed by a person with a different first name and with no last name listed.  The receipts contained no indication that the person who signed the receipt was a person authorized to accept service on behalf of that Defendant. The court noted similar problems with the attempt at service by certified mail upon the other Defendant, again emphasizing there was no indication that the person who signed the receipt was authorized to accept service on behalf of that separate Defendant.

The Defendants eventually filed Preliminary Objections in March of 2019, asserting that serve had not been completed properly.   The court noted that the Plaintiff did eventually make personal service on the Defendants on April 8, 2019. 

The court granted the Preliminary Objections, emphasizing that the certified receipts were signed by an unknown person and that the receipts were unclear as to whether this person, in any event, was an authorized agent capable of accepting service on behalf of either Defendant.  As such, the Plaintiffs were found to have failed in their burden of showing that either of the Defendants or any authorized agents of the Defendants had signed the return receipt.  

Suit was filed a few days before the expiration of the statute of limitations.

Judge Arthur L. Zulick
Monroe Co.
Judge Zulick noted that a Pennsylvania case law on the issue of proper service indicated that compliance with the service rules were generally enforced in a strict fashion, although a few cases did allow for a more flexible approach, particularly where there was evidence that the Defendant had actual notice of the pending lawsuit.   

Judge Zulick distinguished the case before him from those flexible view cases by noting that there was nothing in the records to indicate that the Defendants in this matter had actual notice of  the lawsuit.  

As such, the court concluded that the Plaintiffs had failed to satisfy the good faith element of attempted service.  As noted, the Defendant’s Preliminary Objections were granted and the case dismissed.  

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

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (August 6, 2019). 



In another decision issued on the same date the companion case of Pacheco v. Moore, et al., No. 5475 CV 2018 (C.P. Monroe Co. July 1, 2019 Zulick, J.), Judge Zulick came to a similar result.

The case of Pacheco v. Moore involved a motor vehicle accident that occurred on July 24, 2016. 
The Plaintiff filed Complaint July 20, 2018 and attempted to serve two out-of-state defendants on August 8, 2018 via certified mail. 

The Plaintiff never filed any affidavit of service with respect to either Defendant. 

The out-of-state Defendants filed Preliminary Objections on March 20, 2019 based on improper service. 

In response to the Preliminary Objections, the Plaintiff filed two identical USPS proofs of delivery dated August 8, 2018.  The signatures on both proofs of delivery were identical and illegible. 
Moreover, the tracking receipts for these proofs of delivery merely stated that the Complaints were “left with an individual.”

The Court sustained the Preliminary Objections and held that the return receipts submitted by Plaintiff did not comply with Pa.R.C.P. 405(b) which requires a return of service to include the identity of the person served and any other necessary facts for the Court to determine whether proper service has been made. 

Judge Zulick also applied an analysis under Lamp v. Heyman to conclude that Plaintiff’s course of conduct did not demonstrate a good faith attempt at service of process within the prescribed statute of limitations and and that Plaintiff’s neglect had stalled the progress of the action against the out-of-state Defendants.

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


I send thanks to Attorney Jason A. Statler of the Lemoyne, PA law firm of Johnson, Duffie, Stewart & Weidner for bringing this Pacheco v. Moore decision to my attention.

Motion for Recusal Denied As Untimely


In the case of Philadelphia Cmty. Dev. Cole. v. Isabella, May Term, 2016, No. 04133 (C.P. Phila. Co. March 27, 2019 Powell, J.), the court addressed the current status of the Pennsylvania law surrounding a motion for recusal of a trial court judge.  

In denying the motion, the court noted that the parties seeking their recusal at a pattern of filing recusal motions at the trial level and on appeal, all of which had been previously denied. The court also observed that all of the party’s recusal motions had been filed after the court issued decisions adverse to that party.  

The court generally noted that judges are presumed under Pennsylvania law to be fair and competent.  

It was also noted that a party seeking recusal was required to raise the objection at the earliest possible moment or the issue would be considered time-barred.  

The court otherwise noted that, once a trial in a matter was completed, a party was deemed to have waived the right to have a judge disqualified.  

In cases where after-discovered evidence was involved, the moving party was required to show that the evidence could not have been brought to the attention of the court in the exercise of due diligence and that the existence of the evidence would have compelled a different result.  

In this matter, the party did not submit its Motion for Recusal until more than four (4) months after the trial court had finally decided the matter.   The court concluded that the Motion for Recusal was therefore untimely such that the issues raised were waived.   

The court additionally found that the party failed to meet the requirements regarding after-discovered evidence given that that evidence could have been easily discovered through a simple internet search and presented to the court far sooner.  

Please click this LINK if you wish to read this Opinion.

Tuesday, August 27, 2019

Punitive Damages Claims Allowed to Proceed in Distracted Driving Case


In the case of Baez v. Rosenberry, No. 19-CV-0131 (C.P. Union  Co. July 31, 2019 Hudock, P.J.), the court overruled Preliminary Objections of a Defendant to allegations of distracting driving, reckless conduct, as well as with respect to a claim for punitive damages.  

According to the Opinion, the mirror of the Defendant’s vehicle struck the pedestrian Plaintiff while the Defendant’s vehicle was passing the Plaintiff as the Plaintiff was walking on the right shoulder of a highway.  

The court allowed the allegations pertaining to reckless conduct and punitive damages to stand after noting that the Complaint portrayed the Defendant as a distracted driver who failed to remain on the road, was fatigued, was traveling too fast for conditions, and who struck a pedestrian.   

Based upon these allegations, the Court noted that it "may infer that Defendant’s vehicle continued to travel forward with the Defendant unaware of the roadway in front of him.”   See Op. at p. 3.  Judge Hudock cited to case law imposing a duty of motorists to look in the direction in which the car is proceeding and to keep the car under proper control so as to avoid dangers to pedestrians and others who may be in front of a motorist on the roadway.  The Court also noted that failure to meet these duties is a flagrant violation of a duty.

Overall, the court found that the allegations at issue were sufficient to support the claims of reckless conduct and to possibly impose punitive damages.   The court emphasized that it was not deciding the merit of the claims presented but only that the Plaintiff had pled sufficient facts which, if proven, would establish a right to relief.  As such, the Preliminary Objections of the Defendant were overruled. 

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

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

Monday, August 26, 2019

Judge Caputo of Middle District Allows Uninsured Motorist Benefits Bad Faith Claim to Proceed


In the case of Fuentes v. USAA General Ind. Co., No. 19-CV-1111 (M.D. Pa. July 22, 2019 Caputo, J.), the court ruled that a Plaintiff had pled a plausible bad faith claim arising out of an uninsured motorist claim following a fatal auto accident.  

According to the Opinion, the facts of the case allegedly gave rise to a coverage issue on whether the deceased party’s father, who was the owner of the car at issue, had an applicable policy covering the accident given that there was a question of whether the decedent resided with his father at the time of the accident.

The other driver involved in the accident was uninsured. 

Judge A. Richard Caputo
M.D. Pa.
According to the Opinion, the Plaintiff alleged that the carrier had asked for additional information after a demand for uninsured motorist benefits was made under the father’s policy.  The father sent additional information but the carrier thereafter allegedly advised the father to file a Complaint in order that additional discovery could be completed.   The father responded with a lawsuit asserting uninsured motorist claims as well as breach of contract and bad faith claims.  

Before the court in this decision was the carrier’s Motion to Dismiss the bad faith claims on the grounds that the allegations in that regard only amounted to boilerplate conclusory allegations.  

Judge Caputo disagreed and found that the Plaintiff alleged sufficient factual matter to overcome the F.R.C.P. 12(b)(6) Motion to Dismiss.

In so ruling, Judge Caputo referenced the fact that the carrier allegedly told the father to sue the carrier in order that the carrier may gather additional information.   Judge Caputo stated in his Opinion that, “[a]lthough such conduct may ultimately not amount to bad faith, it is plausible, based on the factual assertions in the Complaint that [the carrier] acted in reckless disregard of its obligations under the policy.”  

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

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris for bringing this case to my attention.   Please remember to check out Attorney Applebaum’s excellent and Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.

Judge Conner of Middle District Grants Bifurcation and Stay of Bad Faith Claims in Property Insurance Case

In the case of McFarland v. Harford Mut. Ins. Co., No. 1:18-cv-1664 (M.D. Pa. July 25, 2019 Conner, J.), the court addressed a Motion to Sever and Stay a bad faith claim in an insurance dispute over property damage caused by the collapse of a retaining wall. 

Judge Conner initially noted in his Opinion that Motions to Sever re governed by Federal Rule of Civil Procedure 21 and that Motions to Bifurcate are governed by Federal Rule of Civil Procedure 42(b).  

The court noted that, unlike bifurcation of claims under Rule 42(b), severance under Rule 21 creates independent action resulting in separate judgments.   The court otherwise noted that severance is appropriate when the claims are “discrete and separate,” that is, each claim is capable of resolution without effect on the other.  

Judge Christopher C. Conner
M.D. Pa.
Judge Conner noted that, while Motions to Sever and Motions to Bifurcate in the federal court are found under separate rules, both are typically decided by reviewing the same factors including the similarity of issues, the type of evidentiary proof required by the claims presented, issues of judicial economy, and whether either party will be unduly prejudice by a separation of the claims presented.  

In his ­Opinion, Judge Conner reviewed a number of state and federal court decisions addressing a Motion to Sever and Stay a bad faith claim from an underlying coverage action.  

In the end, the court in McFarland ruled that the issues in this case underlying the coverage dispute was deemed to be separate and distinct from those issues implicated by the bad faith claim.   The court noted that the breach of contracting for property insurance coverage involved straightforward issues such as causation, damages, and contract interpretation.  

In contrast, the court noted that bad faith claims deal with more “elusive concepts” like motive, internal claims handling practices, and whether the carrier knowingly or recklessly disregard a lack of a reasonable basis for the denial of coverage.  

The court also reaffirmed that a bad faith claim requires a higher evidentiary showing of clear and convincing evidence.  

After also considering other factors, including the interest of judicial economy, the court ruled  that, in addition to agreeing to bifurcate the bad faith claim, the court also ruled to stay discovery on that claim.   The court noted that discovery in the bad faith claim would be stayed until the breach of contract dispute was resolved.  

Judge Conner stated that he was “cognizant that [his] determination runs counter to certain district court decisions in this circuit denying severance or bifurcation of insurance breach of contract and bad faith claims.”  

Nevertheless, the court in McFarland noted that the decision in this regard to order separate discovery and/or trials lies within each court’s broad discretion and must be determined on a case-by-case basis.  

Anyone wishing to review a copy of the Opinion in this decision may click this LINK.  The companion Order can be viewed at this LINK.


I send thanks to Attorney Peter J. Speaker of the Harrisburg, Pennsylvania office of Thomas Thomas & Hafer, LLP for bringing this case to my attention. 

Clark v. Beers Court Reverses Itself and Allows Claim of Reckless Conduct to Proceed

A Tort Talk Blog post from last week reviewed the case of Clark v. Beers, No. 2019-GN-1484 (C.P. Blair Co. Aug. 13, 2019 Bernard, P.J.), in which the court granted a Defendant’s Preliminary Objections seeking the dismissal of allegations of recklessness in a motor vehicle versus pedestrian litigation but allowed the Plaintiff leave to amend the Complaint to add additional facts.  Anyone wishing to review a copy of this decision may click this LINK.

As an UPDATE it is noted that the trial court reversed itself when it was presented with a Motion for Reconsideration by the Plaintiff.  As such, the court found that the allegations in the Plaintiff's Complaint could support a claim of recklessness and the claim was therefore allowed to proceed into discovery.  Click HERE to review the Court's Order granting the Plaintiff's Motion for Reconsideration.

Friday, August 23, 2019

Case of First Impression: Ambulance Company Owes Fiduciary Duty to Patients it Transports


In Covolus v. Menist, nO. 281-CV-2019 (C.P. Monroe Co. May 29, 2019 Williamson, J.), a case of first impression, Judge David J. Williamson of the Monroe County Court of Common Pleas held that a fiduciary duty is owed by a business that provides ambulance services to persons that it transports for care.

According to the Opinion, the Plaintiff was being transported by an ambulance company from one hospital to a psychiatric hospital when he was sexually assaulted by an employee of the company in the back of the ambulance.   

The Plaintiff filed suit against the Defendant for intentional infliction of emotional distress and counts of negligent supervision, failure to prevent harm, and negligent infliction of emotional distress.

The Defendant filed Preliminary Objections asserting that no fiduciary duty existed between the company and the Plaintiff.   The court granted in part and denied in part the Preliminary Objections, thereby allowing the case to proceed.  

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 18, 2019). 

Thursday, August 22, 2019

Claims of Reckless Conduct Dismissed Where No Supporting Facts Alleged



In the case of Clark v. Beers, No. 2019-GN-1484 (C.P. Blair Co. Aug. 13, 2019 Bernard, P.J.), the court granted a Defendant’s Preliminary Objections seeking the dismissal of allegations of recklessness in a motor vehicle versus pedestrian litigation but allowed the Plaintiff leave to amend the Complaint to add additional facts.

According to the Opinion, the accident occurred when the Plaintiff was pushing a shopping cart as she exited a market and was walking in the parking lot. The Defendant was backing his vehicle from a parking space and contacted the Plaintiff with the rear of his vehicle, allegedly causing the Plaintiff to fall down and sustain physical injuries.  

In the Complaint, the Plaintiff asserted allegations of “negligent and reckless” conduct. 

The court noted that these allegations were pled “as if they are indistinguishable” and that “[i]t may well be that Plaintiff only means to assert an action in negligence.”   

The court in the Clark case went on to hold that, if the Plaintiff intended to pursue a theory of reckless conduct on the part of the Defendant then specific factual allegations supporting claims beyond mere negligence must be asserted.  

Given that no such facts were pled in this Complaint, the court granted Preliminary Objections seeking the dismissal of the claims of reckless conduct.  However, as noted, the court granted the Plaintiff an opportunity to amend the Complaint to either add specific facts in support of a claim for reckless conduct or to eliminate the reference to reckless conduct from the Complaint altogether.    

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

UPDATE: The trial court reversed itself when it was presented with a Motion for Reconsideration by the Plaintiff.  As such, the court found that the allegations in the Plaintiff's Complaint could support a claim of recklessness and the claim was therefore allowed to proceed into discovery.  Click HERE to review the Court's Order granting the Plaintiff's Motion for Reconsideration.


I send thanks to Attorney Brad E. Haas of the Pittsburgh office of Marshall Dennehey Warner Coleman & Goggin for bringing this decision to my attention.  


Wednesday, August 21, 2019

Court Allowed to Instruct Products Liability Jury on Both Risk-Utility Test and Consumer Expectation Test If Warranted by Evidence


In the case of Davis v. Volkswagen, No. 1405 EDA 2018 (Pa. Super. July 19, 2019 Bowes, J., McLaughlin, J., Stabile, J.) (Op. by McLaughlin, J.)(Stabile, J., Concurring), the Pennsylvania Superior court held that the Lehigh County Court of Common Pleas did not commit any error in a products liability test when it instructed the jury on both the consumer expectation test and the risk-utility test that the Pennsylvania Supreme Court established in the case of Tincher v. Omega-Flex, even though the Plaintiff only litigated the case under the consumer expectation test.  

The court noted that, although the Plaintiff argued that the trial court judge should not have instructed the jury on both tests, Pennsylvania law under Tincher allowed jury instructions on both tests where evidence was presented by the defense at trial regarding the same.  

According to the Opinion, the defense put in evidence that, according to the trial court and the appellate court, put the risk-utility test at issue in this crashworthiness case.  

Anyone wishing to review a copy of the Majoirity Opinion of this non-precedential decision may click this LINK.  The Concurring Opinion can be viewed HERE.

Source: Article - “Superior Court Addresses Post-‘Tincher’ Jury Instructions In Volkswagen Crashworthiness Case” by Max Mitchell in the Pennsylvania Law Weekly (July 31, 2019).   



Tuesday, August 20, 2019

Pennsylvania Supreme Court Holds That Exculpatory Release Invalid as to Claims of Gross Negligence and Recklessness



The Pennsylvania Supreme Court affirmed the Pennsylvania Superior Court’s decision and ruled in the case of Feleccia v. Lackawanna College, 75 MAP 2017 (Pa. Aug. 20, 2019)(Op. by Dougherty, J.)(Wecht, J., Concurring and Dissenting)(Saylor, J., Concurring and Dissenting), that a waiver of liability in a release form is unenforceable with regards to claims of gross negligence and recklessness.

The case arose out of injuries sustained by two university football players during practice.

More specific to the facts at hand before it, the Court held that a university had a special relationship with its student athletes such that the university "had a duty to provide duly licensed athletic trainers for the purpose of rendering treatment to its student athletes participating in athletic events."


The Majority Opinion by Justice can be viewed HERE.

Justice Wecht's Concurring and Dissenting Opinion can be viewed at this LINK.

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


I send thanks to Attorney Paul Oven of the Moosic, PA office of the law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Safe Auto's Unlisted Resident Driver Exclusion Upheld as Valid by Pennsylvania Supreme Court


In the case of Safe Auto Insurance Co. v. Oriental-Guillermo, 26 MAP 2018 (Pa. Aug. 20, 2019)(Op. by Todd, J.)(Wecht, J., Concurring), the Pennsylvania Supreme Court affirmed the Superior Court's decision upholding the validity of Safe Auto's Unlisted Resident Driver Exclusion.

Under this exclusion, Safe Auto excluded from coverage under its policy those individuals who resided with the Safe Auto insured, but who was not related to the insured and who were not listed on the Safe Auto policy as additional drivers.

The Supreme Court agreed that this insurance contract provision was not ambiguous, did not violate Pennsylvania's Motor Vehicle Financial Responsibility Law, and did not violate Pennsylvania's public policy.

To review Justice Todd's Majority Opinion, please click HERE,

To review Justice Wecht's Concurring Opinion, please click HERE.

Monday, August 19, 2019

Borrowed Servant Doctrine Addressed in Slip and Fall Case


In the case of Burrell v. Streamlight, Inc., No. 2016-CV-30144 (C.P. Montg. Co. May 9, 2019 Saltz, J.), the court addressed the borrowed servant doctrine and found that a Plaintiff was a worker who qualified as a borrowed servant such that the Defendant employer was immune from liability in a negligence cause of action because the worker had already received compensation under the Worker’s Compensation Act.

According to the Opinion, the Plaintiff was affiliated with an employment recruiting agency.  That employment agency placed the Plaintiff as a temporary worker at the Defendant’s facility.   After working for a period at that facility, the Plaintiff was injured when he slipped and fell at work.  

The Plaintiff filed suit against the Defendant employer. The Defendant filed an Answer which contained a New Matter defense alleging that the claims by the Plaintiff were barred by the Worker’s Compensation Act.    The Defendant asserted that it was immune from negligence liability because the Plaintiff was either acting as its employee or was a borrowed servant.  

After discovery, the Defendant moved for summary judgment on the issues presented.  

The court noted a general rule that, when a worker sustains an injury at the work place, compensation under the Worker’s Compensation Act was generally the exclusive remedy against the employer for a monetary recovery.  

Under the borrow servant doctrine, workers’ compensation immunity also applied to the true master when the servant had been loaned to another.   The test for determining whether a worker qualified as a borrowed servant was the right of control over the manner of the employee’s work.  

In this case, the court noted that, although the Plaintiff was initially hired by the temp agency, he worked under the control and supervision of the Defendant facility.   The Defendant facility trained the Plaintiff, set us schedule, and set the Plaintiff’s work duties.   In contrast, the temp agency only handled the payroll function, which the court considered to be peripheral.   The court also rejected the Plaintiff’s argument that the specific tasks he was performing at the time of his accident was not within his duties and, therefore, the borrowed servant doctrine should not be applied.    The court noted that there is evidence to the contrary, showing that the Plaintiff was either asked to perform the worker duty at issue or had volunteered to perform it.  

In light of all of the factors presented, the court found that the Plaintiff was indeed a borrowed servant and that the Defendant was therefore immune from liability under the Worker’s Compensation Act.

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

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (June 4, 2019).

Friday, August 16, 2019

Selected to Appear in Best Lawyers in America Under Category of "Personal Injury - Defense"



Proud to note selection to appear in The Best Lawyers in America under the category of “Personal Injury – Defense” as the only civil litigation defense attorney in this category in northeastern Pennsylvania.

Lawyers named to The Best Lawyers in America© publication were recognized by their peers in the legal industry for their professional excellence in 146 practice areas. For the 2020 Edition of The Best Lawyers in America, 8.3 million votes were analyzed, which resulted in the inclusion of more than 62,000 lawyers, or approximately 5% of lawyers in private practice in the United States.

Best Lawyers is the oldest and most respected lawyer ranking service in the world. For almost 40 years, Best Lawyers has assisted those in need of legal services to identify the lawyers best qualified to represent them in distant jurisdictions or unfamiliar specialties. 

Best Lawyers lists are published in leading local, regional, and national publications across
the globe.


Tort Talk Tip: Saying Please and Thank You Will Separate You



The simple act of always saying "Please" and "Thank you" in all of your interactions with any person will separate you from your competitors in business.

Tuesday, August 13, 2019

Trial Court Finds That Regular Use Exclusion Applies to Rental Vehicle Rented by Employer for Employee's Use





In the case of Rawl v. Geico, No. 11435-CV-2018 (C.P. Beaver Co. July 1, 2019 Ross, J.), the court issued an Opinion in a declaratory judgment action instituted by a Plaintiff against Geico Insurance Company in which the Plaintiff sought a judicial declaration on an issue of coverage involving the regular use exclusion under the policy.  

According to the Opinion, the Geico policy contained a regular use exclusion applicable to UIM claims under the policy, which exclusion provided that when an insured is “using a motor vehicle furnished for the regular use of you, your spouse, or a relative who resides in your household, which is not insured under this policy” coverage is excluded.  

The Plaintiff in this matter was involved in a motor vehicle accident that was the fault of a third party tortfeasor.   The Plaintiff secured the liability limits from the tortfeasor and then turned to Geico for UIM coverage.

At the time of the accident, the Plaintiff was occupying a Dodge Ram van which had been rented by his employer, State Industrial Products, from Enterprise Rent-A-Car.   The The plaintiff was using the rental van because his employer’s regular work van was out of service on the date of the accident.  

The rental van was insured by Traveler’s Insurance Company and provided UIM coverage, which the Plaintiff received.  As noted, the Plaintiff then made a claim for additional UIM benefits under his own policy with Geico.  Geico denied the claim based upon the regular use exclusion contained in the Geico policy, asserting that the rental van in question was a temporary substitute vehicle for the Plaintiff’s work van.  

The parties agreed in a joint stipulation of facts that the rental van in question was not a part of the regular fleet of vehicles owned and operated by the Plaintiff’s employer.   It was further agreed that the rental van had been picked up and rented for only one or two days leading up to the subject accident.   It was additionally agreed between the parties that the Plaintiff had not operated that same rental van on any prior occasion for any purpose.  

Based upon the facts before the court, the parties filed cross-Motions for Summary Judgment.  

The defense asserted that the Plaintiff in this matter was operating a rental vehicle which was a replacement for his regularly used company provided vehicle.   The Defendant carrier submitted that this is a distinction without difference with respect to the regular use exclusion since the vehicle in question was available for the Plaintiff’s regular use at the time of the accident.   The carrier asserted that the fact that the Plaintiff may have used the rental vehicle on only one or two occasions prior to the accident was not material. The fact remained, according to the defense, that the vehicle was furnished and available for the Plaintiff’s regular use.  

In contrast, the Plaintiff pointed to the stipulation of the parties confirming that the rental van in question had only been rented for one or two days before the incident and not any extended period of time to qualify as a temporary substitute vehicle under the policy.   The Plaintiff also emphasized that he did not operate the same rental van on any prior occasion for any purpose.   As such, the Plaintiff asserted that the rental van did not fall within the definition of a vehicle furnished for the regular use of the Plaintiff.  

After a review of the positions of both parties in this matter, as well as a summary of the current status of Pennsylvania law on the regular use exclusion, the court noted that the case before it appeared to be one of first impression.  

Based upon his review of several cases involving the regular use exclusion, Judge Ross held that the exclusion applied in this matter to warrant summary judgment in favor of the Defendant insurance company. 

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


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


Several Notable Civil Litigation Trial Issues Addressed By Pennsylvania Superior Court


The Pennsylvania Superior Court addressed several notable recurring civil litigation issues in the case of Nazarak v. Waite, 2019 Pa. Super. 235 (Pa. Super. Aug. 2, 2019 Lazarus, J., Murray, J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

The case arose out of a rear end motor vehicle accident.  The Plaintiff was driving a commercial vehicle and was on the job at the time of the accident.  As such, he received worker's compensation benefits in the form of medical payments and indemnity payments.

The case proceeded through discovery and a trial at which a verdict was entered in favor of the Plaintiff.  On appeal, the Pennsylvania Superior Court affirmed the trial court's denial of the Defendant's post-trial motions.

Among the notable rulings by the Pennsylvania Superior Court were the following:

-Issues regarding the admission of the worker's compensation lien into evidence.

The Pennsylvania Superior Court affirmed the trial court's ruling to allow the Plaintiff to present to the jury the amount of the worker's compensation lien. 

 The Superior Court rejected the defense contention that the admission of the evidence pertaining to the lien violated the collateral source doctrine.  The Court noted that the reasoning behind the doctrine was not implicated in this case because it was the Plaintiff who was introducing the evidence of a prior recovery and not the Defendant.

The Nazarak Court also rejected the defense argument that the admission of the lien amount into evidence and the allowance of a recovery in that regard amounted to a double recovery for the Plaintiff.  The Court confirmed that the Plaintiff was required to pay back the lien amount to the worker's compensation carrier and that, as such, there was no double recovery by the Plaintiff.

The Superior Court also rejected the defense contention that, by allowing into evidence the fact that the Plaintiff had been paid such medical and wage loss benefits, the trial court usurped the function of the jury to decide the issue of causation because such evidence suggested that the Plaintiff's injuries were from the accident.  This contention by the defense was rejected by the Superior Court in this Narzarak decision.

-The Court also rejected the defense argument that it was error for the trial court to have allowed the introduction of the compromise and release document from the worker's compensation case into evidence at trial.  The defense had asserted that this was impermissible evidence of a settlement agreement in violation of 42 Pa.C.S.A. Section 6141.  The Superior Court noted that the Defendants in this case were not parties to that separate worker's compensation settlement agreement and, as such, Section 6141 was not directly implicated.  However, the Superior Court went onto note that while the admission of this evidence may have violated the letter of the law in Section 6141, such an error was not a reversible error where the evidence was only used by the Plaintiff to establish the amount of the lien and not with respect to proving any liability issues (liability was admitted by the defense at trial).


-Issues regarding the presentation of expert testimony.

The Court in Nazarak rejected the defense contention that the Plaintiff's vocational expert was allowed to testify beyond the fair scope of her report.  After reviewing the expert's testimony as compared to the expert's report, the Court rejected this argument.

The Court also rejected the argument by the defense that the Plaintiff had violated the hearsay rule by utilizing the Plaintiff's testifying orthopedic expert report to comment upon the report and opinions of a neuro-radiologist expert who was not called to testify.  The defense contended that this strategy violated the rule of law that prohibited one expert from acting as a mere conduit for the opinion of another expert.  The Nazarak court reviewed the testimony of the testifying orthopedic expert and found that that expert had not merely acted as a conduit for the other expert's opinion, but rather had permissibly referred to and relied upon that other expert's opinions to formulate the orthopedic expert's own opinions on the case presented.


Anyone wishing to review this case may click this LINK.

Friday, August 9, 2019

No Subrogation Allowed Against Third Party Tort Recovery Where Heart and Lung Benefits Were Paid


In the Commonwealth Court case of Kenney v. WCAB (Lower Pottsgrove Twp.), No. 845 C.D. 2018 (Pa. Cmwlth. Aug. 2, 2019)(Op. by Leavitt, P. J.), the Court held that there is no subrogation allowed against a third party tort recovery by a Plaintiff in a motor vehicle accident case when the benefits that were previously paid to the injured Plaintiff by the lienholder were Heart and Lung Benefits.  The Court ruled that this is so even if the benefits are paid out of a Trust.

In so ruling, the Commonwealth Court followed the Pennsylvania Supreme Court's decision in the case of Pennsylvania State Police v. WCAB (Bushta), 183 A.3d 958 (Pa. 2018)(Bushta II).

According to the Opinion, this matter arose out of a work-related car accident when the Plaintiff's police cruiser was struck by another vehicle.

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

I send thanks to Attorney Scott Cooper of the Harrisburg, PA law office of Schmidt Kramer for bringing this decision to my attention.


Wednesday, August 7, 2019

Competency of Medical Expert To Testify In a Specific Area Addressed


Dr. Orin Scrivello, DDS in The Little Shop of Horrors
In the case Phillips v. Gilbert, July Term 2016 No. 02819 (C.P. Phila. Co. June 17, 2019 Lauchman, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s decision that the Plaintiff’s expert in a dental malpractice case, who had never performed a dental implantation procedure during his lengthy career as a dental pathologist, lacked the training, experience, and knowledge necessary to testify regarding the standard of care applicable to the dental implant procedure that had been performed on the Plaintiff by the Defendant.   

The court noted that the Plaintiff’s expert was an oral and maxillofacial pathologist and not an oral and maxillofacial surgeon.  

Given that the court barred the Plaintiff’s expert from testifying, the Plaintiff was found to be unable to establish a prima facie case of negligence.  As such, the trial court granted a compulsory non-suit in favor of the Defendant and denied the Plaintiff’s post-trial motion.   The Plaintiff filed an appeal which prompted this Rule 1925 Opinion by the court.  

In its Opinion, the trial court emphasized that oral and maxillofacial surgeons and pathologists undergo completely different training and performed completely different procedures on patients.  

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 16, 2019). 

Monday, August 5, 2019

PBA QUARTERLY ARTICLE: HURRICANE KOKEN RAGES ON: Uncertainty Continues in Motor Vehicle Accident Litigation in the Stormy Post-Koken Era


Here is a LINK to a recent article of mine that was published in the July, 2019 edition of the Pennsylvania Bar Association Quarterly entitled "Hurricane Koken Rages On:  Uncertainty Continues in Motor Vehicle Accident Litigation in the Stormy Post-Koken Era."

The article provides an overview of the 14 years of jurisprudence in this area of law since the Koken decision was handed down in 2005 allowing UM/UIM carriers to remove arbitration clauses from their policies and instead allowing for these claims to proceed by way of a lawsuit.

To date, there has been only scant appellate guidance on the many novel issues of law presented by this form of automobile accident litigation.  As such, litigators in this arena must still rely upon the common law being created across the Commonwealth of Pennsylvania through trial court decisions on the various issues presented.

In addition to providing an overview of the law as compiled on the Post-Koken Scorecard from the Tort Talk Blog (www.TortTalk.com), the article also encourages litigators to take Post-Koken issues up on appeal, urges the Pennsylvania Superior Court to publicize all of its Post-Koken decisions and not merely list them as non-precedential, and requests that the Pennsylvania Supreme Court consider accepting any and all Post-Koken issues that go all the way up the appellate ladder, all in order to ensure that much needed appellate guidance can be generated for the benefit of both the bench and the bar sooner rather than later.

I thank the editorial board of this publication of the Pennsylvania Bar Association for selecting this article for publication.  I also thank Professor Robert E. Rains, of the Dickinson School of Law, for his excellent editorial input on the article.

Should I be able to assist anyone with any Post-Koken issues from pleadings to discovery to trial, please do not hesitate to contact me.  Please also do not hesitate to contact me for free copies of any cases you find on the Post-Koken Scorecard that may assist you in your own case.

I ask that, should anyone generate a Post-Koken decision (even if only by Order) in any court, that you please consider sending me a copy in order that I may both share that decision with the readers of Tort Talk and also update the Post-Koken Scorecard.

Thank you,

Daniel E. Cummins

Thursday, August 1, 2019

College Held Not Responsible for Acts of Inebriated Fraternity Member Under Facts Alleged

Bluto cheering up Flounder
Animal House (1978)

In the case of Rose v. Vilmatelo, No. 2018-SU-450 (C.P. Adams Co. April 12, 2019 George, J.), the court addressed Preliminary Objections filed by Gettysburg College seeking the dismissal of a Plaintiff’s personal injury claim arising out of allegations that the Plaintiff, a college student, was injured by an allegedly inebriated participant at a fraternity function on campus.  

The Plaintiff alleged that the college was responsible for the acts of its students and that the college breached its duty to supervise the actions of the fraternity.

The court dismissed the Plaintiff’s Complaint against the college based upon the case of Alumni Ass’n v. Sullivan, 572 A.2d 1209 (Pa. 1990) in which it was held that college students were no longer minors, but rather adults who were capable of protecting their own self interests.  As such, under that case, a college was found not to have any duties in loco parentis with respect to its students.  

The trial court in this matter rejected the Plaintiff’s efforts to get around the Sullivan case by way of the Plaintiff’s arguments that (1) the college was allegedly aware that alcohol consumption was a problem on campus, (2) that the college had previously enacted rules requiring fraternities to notify the college administration of any events involving alcohol and, (3) in that the college required the fraternities to have someone oversee conduct at such events.   The Plaintiff alleged that, by enacting these rules, the college had assumed a special duty to control the activities at the event.  

The trial court in this Rose case rejected these arguments and noted that prior case law in Pennsylvania had rejected these types of arguments.   The court noted that, by simply adopting social policies for campus activities, the college did not create an in loco parentis type of duty on the part of the college.   The court found that the college’s social policy and rules were not an assumption of a duty, but rather a policy statement that adult students should be aware of their own behavior and act accordingly.  

The court in this Rose case emphasized that the Plaintiff’s Complaint did not contain any allegations that the college itself was a social host.   

The Complaint also did not allege that representatives of the college were present at this fraternity function or that any college representative assisted in any way in procuring or distributing alcohol to the attendees of the event.

Based upon this rationale, the court sustained the Preliminary Objections asserted by the Defendant, Gettysburg College.  

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 16, 2019).