Sunday, March 31, 2019

SAVE THE DATE: June 10, 2019 Lackawanna Pro Bono Golf Tournament at Elmhurst Country Club



Pike County Joins Majority of Trial Courts in Favor of Severance/Bifurcation of Bad Faith Post-Koken Claims


In a detailed Order recently entered in the Post-Koken case of Hansen v. Fucetola and NJM Ins. Co., 1079-2014-Civil (C.P. Pike Co. Feb. 26, 2019 Chelak, J.), Judge Gregory H. Chelak of the Pike County Court of Common Pleas granted a UIM carrier's Motion to Sever and Stay the Plaintiff's Bad Faith Claim From the Plaintiff's Breach of Contract Claim.

The court relied upon Pa.R.C.P. 213(b), which grants the trial court power to bifurcate or sever matters, and ruled that severance was the most prudent action under the circumstances presented in this case. 

In this regard, the court noted that the failure to sever the bad faith claim could prejudice the UIM carrier in front of a jury in the carrier's defense of the breach of contract UIM claim.  The court also found that there would be no prejudice to the Plaintiff in granting the severance of the bad faith claim. 

Judge Gregory H. Chelak
Pike County
Judge Chelak additionally noted that the granting of the severance motion would advance the interests of judicial economy and foster a more efficient and speedy resolution of the underlying claims presented.  In the court's opinion, the UIM claim would be able to be resolve or concluded more promptly if the bad faith claim was severed.

Notably, Judge Chelak's Order not only results in the severance of the claims for purposes of discovery but also specifically holds that the bad faith claim was bifurcated for purposes of any eventual trial.  An additional rationale for his ruling was that the bifurcation of the bad faith claim from the trial on the third party and UIM claims would avoid confusion on the part of the jury.

Judge Chelak concluded his Order by mandating that all discovery on the bad faith claim was stayed pending the resolution of the third party negligence and UIM claims.

Anyone wishing to review Judge Chelak's detailed Order in the Hansen case may click this LINK.

Commentary:  As there still remains no appellate guidance on the issue of severance/bifurcation of bad faith claims in Post-Koken matters, and/or whether bad faith discovery should be stayed pending the resolution of the companion UIM claim, there continues to be a split of authority.  With the above decision, Pike County lands on the majority side of those county courts that favor severance, bifurcation and stay Orders relative to bad faith claims.

This case will be added to the list of decisions noted on the Tort Talk Post-Koken Scorecard which can be viewed HERE.

According to the Post-Koken Scorecard, twice as many county courts favor the severance of bad faith claims (21) when compared to those county courts (10) that elect to keep the claims consolidated.

Pennsylvania Supreme Court Grants Allocatur in Berg v. Nationwide Case


The bad faith case of Berg v. Nationwide, No. 569 MAL 2018 (Pa. March 29, 2019) is a case that began back in 1998.  After a trial court entered a $21 million dollar award against the carrier, the case has since gone up and down the appellate ladder over the past two decades.

In the latest chapter of this case, the Pennsylvania Supreme Court recently granted allocatur to hear the case and decide whether the Pennsylvania Superior Court erred in its 2018 decision to reverse the award in favor of the insured.  The Supreme Court's Order outlining the questions accepted on appeal can be viewed HERE.

If you are interested in reading summary of the prior decisions in the Berg case, check out this detailed post from the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog written by Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris.  That post can be viewed HERE.

Friday, March 29, 2019

Need Help Bringing Your Case to a Close?



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.

Thursday, March 28, 2019

Split of Authority Continues on Consolidation vs. Severance/Bifurcation of Post-Koken Claims


 
In the case of Ali v. Erie Insurance Company, No. 2017-CV-03544 (C.P. Dauph. Co. March 1, 2019 Cherry, J.), the court denied a Plaintiff’s Motion to Consolidate a third party negligence claim with a companion UIM claim in a post-Koken motor vehicle accident matter.  
 
In his detailed Order, Judge John F. Cherry of the Dauphin County Court of Common Pleas held that the “consolidation of these matter[s] would not serve the interests of judicial efficiency, but rather, create confusion to the jury.”  
 
The court additionally noted that the cases involved “separate and distinct causes of action” against the two (2) types of Defendants, that is, a negligence claim for bodily injury against the Defendant driver and owner and a separate contract claim against the UIM carrier.  
 
Anyone wishing to review a copy of this detailed Order may click this LINK.

 
I send thanks to Attorney John A. Statler of the Lemoyne, Pa law firm of Johnson, Duffie, Stewart & Weidner for bringing this case to my attention.  

Wednesday, March 27, 2019

Discovery Sanctions Result in Dismissal of Case


In the case of Rivera v. The City of Reading, No. 16-4957 (C.P. Berks Co. Jan. 8, 2019 Rawley, J.), Judge Timothy J. Rawley of the Berks County Court of Common Pleas issued a Rule 1925 Opinion in support of his decision to dismiss the Plaintiff’s case as a discovery sanction given the Plaintiff’s repeated failures to engage in the discovery process.   

Judge Rawley noted that the dismissal of the case followed multiple Motions to Compel and for Sanctions, as well as a prior Order of Court specifically warning the Plaintiff of severe sanctions for continued noncompliance.  

According to the Opinion, this case arose out of a fatal motor vehicle accident.   The Plaintiff followed a wrongful death and survival action alleging that the City was responsible for a large pothole on a city street.  

In his Opinion, Judge Rawley outlined the various discovery violations by the Plaintiff particularly relative to the Plaintiff’s failure to appear at depositions and in other respects.  

Judge Rawley noted that, generally speaking, the imposition of sanctions for a party’s failure to comply with discovery is subject to the discretion of the trial court as is the severity of this sanctions imposed.  

After reviewing the several factors to be considered in a sanctions motion, which included (1) the nature and the severity of the discovery violation, (2) the defaulting party’s willfulness or bad faith, (3) the prejudice to the opposing parties, (4) the ability to cure the prejudice, and, (5) the importance of the precluded evidence in light of the failure to comply, the trial court stated that the entry of a dismissal order was appropriate.   Judge Rawley noted that the Plaintiff’s discovery violations were severe, prolonged, and repeated.  

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

I send thanks to Attorney Barrie B. Gehrlein of the Wyomissing, PA law office of Johnson Duffie, Stewart & Weidner for bringing this case to my attention.  

Tuesday, March 26, 2019

Judge Nealon Provides a Primer on the Doctrine of Forum Non Conveniens

The Clash on the Forum Non Conveniens Doctrine


In the case of Cox v. Advanced Auto Parts, No. 17-CV-2380 (C.P. Lacka. Co. Feb. 28, 2019 Nealon, J.), the court denied a Defendant landowner’s Petition to Transfer this matter to York County under the doctrine of forum non conveniens in this Lackawanna County premises liability matter.  
 
In support of the Petition, the Defendant submitted the Affidavits of its two (2) managers who asserted that it would be a “great hardship” for them to travel more than 100 miles to the Lackawanna County Courthouse to testify at trial. 
 
The Plaintiff, a resident of Bucks County, argued that a transfer of venue was not appropriate since his only remaining direct claim is against the Defendants, which operated four (4) stores in Lackawanna County.  
 
As the court found that the Defendant had not established that the Plaintiff’s chosen forum is vexatious or oppressive, the Petition was denied.
 
Judge Nealon’s Opinion provides a nice overview on the current status of the law pertaining to Petitions to Transfer under the doctrine of forum non conveniens. 
 
This decision can be viewed at this LINK.

Case Transferred Out of Philadelphia Under Doctrine of Forum Non Conveniens


In the case of Powers v. Verizon Pennsylvania, LLC., August Term, 2017, No. 1977 (C.P. Phila. Co. Dec. 24, 2018 Robins New, J.), the court issued a Rule 1925 Opinion in which it opined that it had properly granted the Petition of the Defendant to Transfer Venue based upon the doctrine of forum non conveniens under Pa.R.C.P. 1006(d)(1).  

Although this matter was filed in Philadelphia County, it arose out of a trip and fall event that had occurred in Bucks County, Pennsylvania.

After reviewing current appellate precedent on the issue presented, the court found that the Petition to Transfer should be granted.  The court more specifically found that the Defendant had sustained its burden of demonstrating that the Plaintiff’s chosen forum in Philadelphia Country was oppressive, because the accident occurred in a neighboring county, none of the parties lived in the original forum, and given that all of the fact witnesses lived in other counties. 

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Feb. 26, 2019).  

Monday, March 25, 2019

Summary Judgment Granted to Tenant Store Where Plaintiff Fell on Common Sidewalk


In the case Monti v. Pet Supplies Plus, LLC, No. 8681-CV-2015 (C.P. Monroe Co. Dec. 28, 2018 Harlacher Sibum, J.), the court granted summary judgment in favor of a retail store tenant in a slip and fall action where the Plaintiff fell in an area of a retail establishment comprised of common areas.

At the time of the Plaintiff's trip and fall, the Plaintiff was exiting the store when the wheel of her walker allegedly became lodged in a dip in the sidewalk.  The court found under the facts presented that sole liability for the exterior sidewalks on the leased property rested with the landlord.   

Judge Jennifer Harlacher Sibum
Monroe County

In so ruling, Judge Harlacher Sibum relied upon the Pennsylvania Supreme Court decision in Leary v. Lawrence Sales Corp., in which that court laid down the principle of law that “[w]here the owner of real estate leases various parties thereof to several tenants, but retains possession and control of the common passage-ways aisles which are to be used by business invitees of the various tenants, the obligation of keeping the common aisles safe for the business invitees is imposed upon the landlord and not upon the tenants, in the absence of a contrary provision in the lease or leases.” 

In this Monti case before Judge Harlacher Sibum, the court noted that under the lease, the tenant and its customers were granted the privilege to use the common areas.  However, the lease provided that the landlord retained certain duties including maintaining those common areas of the leased property.  

Based upon this unambiguous language in the lease and the lack of any applicable lease provision to the contrary, and the application of the precedent in the Leary case, the court ruled that the landlord had sole liability for the exterior sidewalks on the leased property.  As such, the tenant was granted summary judgment on the premises liability issues presented.   

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 5, 2019). 

Another Court Rules No Liability For Slip and Fall That Occurs While Precipitation Still Falling

It's still snowing!

In the case of Rosatti v. McKinney  Properties, Inc., No. 2017-0022 (C.P. Centre Co. Jan. 22, 2019 Grine, J.), the court entered summary judgment in favor of a Defendant and owner under the Hills and Ridges Doctrine.  

According to the Opinion, when the Plaintiff arrived at the property at around 4:00 p.m., freezing rain was falling outside.   A few hours later, when the Plaintiff decided to leave the premises at around 7:00 p.m., it was snowing with freezing rain.   The Plaintiff slipped and fell while leaving the property.  

The Defendant filed a Motion for Summary Judgment under the Hills and Ridges Doctrine.   After reviewing the factors at issue under that doctrine, which required the Plaintiff to show that the snow and ice had accumulated on the walkway in ridges or elevations in such size and character as to unreasonably obstruct travel and constitute a danger to pedestrian traveling thereon, the court entered summary judgment.  

Judge Grine also emphasized that under the prevailing case law “[A] landowner has no obligation to correct the conditions until a reasonable time after the winter storm has ended.”  Collins v. Phila. Sub. Dev. Corp., 179 A.3d 69, 75 (Pa. Super. 2018) (emphasis added in Rosatti).  

The court additionally noted that “[a] property owner does not have a duty to clear ice or snow from walkways as soon as it forms or falls.   Citing with “see” signal, Tucker v. Bensalem Twp. School District, 987 A.2d 198, 203 (Pa. Cmwlth. 2009).  


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

Friday, March 22, 2019

Negligent Infliction of Emotional Distress Claim Allowed to Proceed in Medical Malpractice Claim


In the case of Murga v. Lehigh Valley Physicians Group, No. 2016-C-1691 (C.P. Leh. Co. Nov. 26, 2018 Johnson, J.), the court found that the Defendants were not entitled to summary judgment on the Plaintiff’s claim for negligent infliction of emotional distress because the Plaintiff sought relief under multiple plausible theories and given that the case for summary judgment was not free and clear from doubt.  

In this matter, the Plaintiff alleged a medical malpractice claim against the Defendants for negligent infliction of emotional distress in connection with a miscarriage that the Plaintiff had suffered.  

The Defendants moved for a partial summary judgment, arguing that the Plaintiff’s negligent infliction of emotional distress claim failed because her alleged emotional injuries were not foreseeable and given that the Plaintiff allegedly did not observe a discrete traumatic event contemporaneously with the Defendants’ alleged negligence.   The Defendants also argued that a buffer of time and space existed in connection with the Plaintiff’s miscarriage and the delivery of her deceased fetus.  

In response, the Plaintiff argued that her claim for negligent infliction of emotional distress was appropriate under multiple theories of recovery, including a duty of care arising from a special relationship, under the physical impact theory, as well as under the bystander theory.  

The court denied summary judgment finding that it was not free and clear from doubt that the Defendants were entitled to the same.   The court cited to numerous Pennsylvania cases which permitted recovery for negligent infliction of emotional distress under the various theories asserted by the Plaintiff under similar circumstances.   

As such, the Motion for Partial Summary Judgment filed by the Defendants was denied.  

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Feb. 26, 2019).  


Alleged Low-Ball UIM Offer Not Per Se Bad Faith



In the cases of Clarke v. Liberty Mutual Insurance Company, 3:18-CV-1925 (M.D. Pa. Feb. 11, 2019 Caputo, J.), and Moran v. USAA, No. 3:18-CV-2085 (M.D. Pa. Dec. 12, 2018Caputo, J.), the court again addressed Motions to Dismiss Bad Faith Claims and granted the same, thereby dismissing these cases with prejudice.  It is noted that the Complaints in these two (2) cases were previously dismissed by Judge Caputo without prejudice and the Plaintiff was granted leave to amend.   In these most recent decisions, the cases are ended by the court’s decision in favor of dismissal.  

In the case of Clarke v. Liberty Mutual Insurance Company, the court noted that a discrepancy between the alleged damages and the carrier’s evaluation alone does not amount to bad faith.   More specifically, the Plaintiffs alleged that, since the Plaintiff’s medical bills totaled over $39,000.00 and given that the Plaintiff may require additional injections in the future, the Defendant carrier was alleged to have engaged in bad faith in concluding that the claim fell within the $15,000.00 third party settlement.  

The court followed previous decisions in which it had been held that alleged “low-ball” offers alone cannot support a claim for bad faith.  Rather, a Plaintiff must allege factual allegations to show why the alleged “low-ball” offer was actually unreasonable and how the carrier knew or recklessly disregarded the fact that it was unreasonable.  

Finding that such claims were not made in the Clarke case, the court granted the Motion to Dismiss.  

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

The Moran decision can be viewed HERE


I send thanks to Attorney Brigid Q. Alford of the Camp Hill, Pennsylvania office of Marshall, Dennehey, Warner, Coleman and Goggin for bringing this case to my attention.   

Wednesday, March 20, 2019

Appeal Quashed Where Summary Judgment Entered In Favor of Less Than All Defendants


In the case of Massaro v. Tincher Constr., 2019 Pa. Super 44 (Pa. Super. Feb. 19, 2019 Bender, P.J.E., Nichols, J., Stevens, P.J.E.), the Pennsylvania Superior Court addressed the propriety of an appeal from an Order entering summary judgment for less than all of the Defendants.  

The court ruled that an appeal from an Order entering summary judgment for one (1) Defendant but not other Defendants was not immediately appealable under the Pennsylvania Rules of Appellate Procedure.   The court also noted that, since no request for permission to appeal had been submitted to either the trial court or the appellate court, the appeal from the summary judgment order was quashed.  

The Majority Opinion of the Superior Court by Judge Nichols can be viewed HERE.

The Dissenting Opinion by President Judge Emeritus Bender can be viewed HERE.

 
Source:  “Court Summaries” by Timothy L. Clawges Pennsylvania Bar News (March 18, 2019).  




Preliminary Objections Granted Based Upon Failure to Complete Service Prior To Expiration of Statute of Limitations

In the case of Gussom v. Teagle, April Term, 2018, No. 03821 (C.P. Phila. Co. Jan. 3, 2019 Patrick, J.), the court granted a Defendant’s Preliminary Objections seeking the dismissal of a Plaintiff’s Complaint for failure to complete service before the expiration of the statute of limitations.  

This matter arose out of a motor vehicle accident that occurred on July 26, 2016.   The Plaintiff filed a Complaint against the Defendant on April 26, 2018.   The Plaintiff was unable to complete service at the Defendant’s last known address in Philadelphia.  According to the Affidavit of Non-Service, the occupant of the last known address for the Defendant stated that the Defendant had relocated to Virginia.  

Several months later on August 22, 2018, which was after the expiration of the statute of limitations, the Plaintiff filed a Praecipe to Reinstate the Complaint. The defense responded with Preliminary Objections to the Complaint filed in September of 2018.  

The Plaintiff did not respond to the Preliminary Objections. Instead the Plaintiff filed another Praecipe to Reinstate the Complaint in September of 2018.

The court sustained the Defendant’s Preliminary Objections in October of 2018, dismissing the Plaintiff’s Complaint in its entirety.   Two days later, the Plaintiff filed a Motion for Reconsideration which was also denied.  

The court reviewed Pennsylvania law requiring a good faith effort to complete service once an action was commenced.   The court found, in its sound discretion, that, under the facts presented, the Plaintiff’s inaction demonstrated and intent to stall the judicial machinery that the Plaintiff had set in motion.  

More specifically, the court pointed to the fact that, after the Plaintiff’s unsuccessful attempt to serve the Defendant at his last known address, there were no further efforts by the Plaintiff to locate and serve the Defendant.   The court also faulted the Plaintiff for not attempting to serve the Defendant by alternative means.   The court additionally noted that the two (2) Praecipes to Reinstate the matter were not filed timely.   

The court also pointed out that the Plaintiff did not file an Affidavit of the eventual completion of service until after the court had already sustained the Defendant’s Preliminary Objections.   The court found that, overall, the Plaintiff had failed to act in good faith in the efforts to complete service.  

The court also rejected the Plaintiff’s Motion for Reconsideration as no new facts or evidence were presented that would excuse the Plaintiff’s lack of a good faith effort to complete service on the Defendant prior to the expiration of the statue of limitations. 

Anyone wishing to review this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 29, 2019).

Monday, March 18, 2019

Scope of Allowable Bad Faith Discovery Limited by Western District Federal Court of Pennsylvania


In the case of Horvath v. Globe Life & Accident Ins. Co., No. 3:18-CV-84 (W.D. Pa. Feb. 28, 2019 Gibson, J.), the court denied a Plaintiff’s Motion to Compel a Defendant carrier in a bad faith claim to identify all bad faith suits in which it was involved over the preceding ten (10) years.  

In denying this Motion to Compel by the Plaintiff, the court essentially ruled that the other, prior bad faith claims were irrelevant to the case at hand.   Judge Gibson found that there was no close “connection between other bad faith claims against Defendant and the issue of materiality here, particularly considering the myriad of potential factual differences between other claims and the present claim, including different types of policies, unique policy language, the application of different states’ law, [and] varying circumstances surrounding the bad faith allegations…..” 

Judge Gibson additionally noted that “the general rule [is] that courts in the Third Circuit ‘disfavor the discovery of similar claims evidenced in bad faith cases.’”  

The court additionally denied this Motion to Compel evidence of ten (10) years of prior bad faith actions as overbroad and unduly burdensome given that there was no geographic limit, no limit to the type of insurance policy at issue, no valid explanation as to why a ten (10) year period was required or why a shorter period would be inadequate.  

Anyone wishing to review this decision may click this LINK.  


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

Lehigh County Trial Court Refuses to Open Default Judgment


In the case of Cruz v. The Midwives & Assoc., Inc., No. 2017-C-3103 (C.P. Leh. Co. Dec. 3, 2018 Johnson, J.), the court ruled that the Defendants were not entitled to open a default judgment where their failure to timely file a responsive pleading was not excusable.   

In this matter, after the filing and service of a Writ of Summons and a Complaint, the Defendants failed to file a responsive pleading.   The Plaintiff then issued a 10-Day Notice of Intent to Enter a Default and, when the Defendant did not file any pleading, the Plaintiff entered a default judgment.  

The court noted that the Defendant did not file a Petition to Open a Default Judgment until twelve (12) days later.  

The court noted that, under Pa.R.C.P. 237.3(b)(2), if a Petition to Open a Default Judgment is filed within ten (10) days after the entry of the default judgment, the court “shall” open the judgment if the proposed Answer states a meritorious defense. 

Where, as here, a Petition to Open a Default Judgment is filed more than ten (10) days after the entry of a default judgment, the court will only exercise its discretion to open the judgment if (1) the petition has been promptly filed, (2) a meritorious defense has been shown, and (3) the failure to appear or respond can be excused.   

Here, the court found that Defendants’ Petition to Open the Judgment was promptly filed and that a meritorious defense had been stated.  

However, the court determined that the Defendants’ failure to file an Answer could be not excused under the circumstances presented.   Here, the Defendant admitted that they were aware that they were not covered by insurance at the time of the subject incident such that the Defendant knew that no insurance company would provide it with an attorney.   The court also noted that the Defendant did not take any action even after receiving the 10-Day Notice.   It was indicated that the Defendants only sought out legal counsel after the default was entered.  

As such, the court found that the circumstances of this case did not amount to any mere oversight or an unintentional omission to act.   Rather, the Defendants were found to have received multiple notices informing them of their obligation to participate in the case and the consequences for failing to do so.  Despite these notices, the Defendants did not act or file an Answer to the Complaint.  

As there was no reasonable excuse or explanation provided by the Defendants for failing to respond to the Complaint, the court denied the Defendants’ Petition to Open the Default Judgment.  

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Feb. 26, 2019).  

Thursday, March 14, 2019

Judge A. Richard Caputo of Federal Middle District Court of Pennsylvania Addresses Proper Pleading of Bad Faith Claims in Two Separate Decisions

In the cases of Clarke v. Liberty Mutual Insurance Company, No. 3:18-CV-1925 (M.D. Pa. Feb. 11, 2019 Caputo, J.), and Moran v. USAA, No. 3:18-CV-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.), the court again addressed refiled Motions to Dismiss Bad Faith Claims and granted the same, thereby dismissing these cases with prejudice.  It is noted that the Complaints in these two (2) cases were previously dismissed by Judge Caputo without prejudice and the Plaintiff was granted leave to amend.   In these most recent decisions, the cases were both ended by the court’s decision in favor of dismissal.  

In the case of Clarke v. Liberty Mutual Insurance Company, the court confirmed that a discrepancy between the alleged damages and the carrier’s evaluation alone does not amount to bad faith.   

More specifically, the Plaintiffs alleged that, since the Plaintiff’s medical bills totaled over $39,000.00 and given that the Plaintiff may require additional injections in the future, the Defendant carrier was alleged to have engaged in bad faith in concluding that the claim fell within the $15,000.00 third party settlement.  

The court followed previous decisions in which it had been held that alleged “low-ball” offers alone cannot support a claim for bad faith.  Rather, a Plaintiff must allege factual allegations to show why the alleged “low-ball” offer was actually unreasonable and how the carrier knew or recklessly disregarded the fact that it was unreasonable.  

Finding that such claims were not made in the Clarke case, the court granted the Motion to Dismiss.  

A similar ruling was entered by Judge Caputo in the Moran v. USAA case where he again found that a discrepancy in the evaluation of the claim alone does not get around the issue of the Plaintiff pleading a bad faith claim in a conclusory fashion.  

Anyone wishing to review a copy of the Clarke decisions may click this LINK.\

The Moran decision can be viewed HERE.

I send thanks to Attorney Brigid Q. Alford of the Camp Hill, Pennsylvania office of Marshall, Dennehey, Warner, Coleman and Goggin for bringing this case to my attention.  

Wednesday, March 13, 2019

Negligent Entrustment and Punitive Damages Claims In Case of Driver With Only a Learner's Permit (Cell Phone Use Also Alleged)


In the case of Robinson v. Marett, No. 10672 of 2018, C.A. (C.P. Lawrence Co. Dec. 20, 2018 Motto, P.J.), the court overruled the Defendants’ Preliminary Objections regarding issues of negligent entrustment and punitive damages in a motor vehicle accident case.  

The Defendants’ preliminarily objected to the Plaintiff’s Complaint asserting that the claim for negligent entrustment was legally insufficient because there was no evidence to establish that the driver was incompetent to operate the vehicle when it was entrusted to him by the owner of the vehicle.   

The Plaintiffs had alleged that the owner had allowed the driver to operate the vehicle when the driver only had a learner’s permit and was not supervised by an adult family member.   The Complaint additionally asserted that the driver was distracted by his use of a cell phone or other electronic device, was operating the vehicle at a high rate of speed, and was following the vehicle ahead too closely.  

The court ruled that these allegations were sufficient to support a claim for negligent entrustment because, under these circumstances alleged, the owner should have known the risk to others by allowing an unlicensed and unsupervised driver to operate the vehicle.  

The Defendant driver and owner had asserted that the driver had a driver’s license at the time of the accident such that the negligent entrustment claims should be rejected.  However, the court noted that this argument required the court to consider facts that were not contained within the Complaint, which was impermissible when deciding Preliminary Objections. The court noted that the Defendants could make this argument again by way of a summary judgment motion but reiterated that such an argument could not be the basis for allowing a Preliminary Objection.  

The Defendants additionally asserted that the Plaintiff’s allegations of recklessness should be stricken as scandalous or impertinent, because the Plaintiffs had no basis for recovering punitive damages under the facts alleged.  

The court rejected this argument after finding that the Plaintiffs had alleged sufficient facts from which a jury could conclude that the driver acted outrageously. These allegations indicated that the driver was not properly licensed and was not being attentive to other vehicles on the roadway at the time of the accident.  

As such, the Defendants’ Preliminary Objections were overruled and the Plaintiff's negligent entrustment claims were allowed to proceed.  

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Feb. 26, 2019).

Tuesday, March 12, 2019

Additional Cases for Facebook Discovery Scorecard


I was recently made aware of the below older Facebook Discovery/Admissibility cases

These cases have been added to the Facebook Discovery Scorecard on the Tort Talk Blog and which can always be freely accessed by going to www.TortTalk.com, scrolling down the right hand column and clicking on the date below the title "Facebook Discovery Scorecard."

One of the benefits of the Facebook Discovery Scorecard is that you can click on the case names on the Scorecard to be linked to the actual Opinions or Orders.  I have set up the below cases in the same regard, i.e., you can click on the case name to go to the decision online.

The cases are, as follows:

Hanna v. Giant Eagle, Inc.2016 U.S. Dist. LEXIS 107253 (W.D. Pa. 2016 Mitchell, J.)(Court precludes unfettered access to Plaintiff's social medial account).


Bryant v. Wilkes-Barre Hosp. Co., LLC, 2016 LEXIS 87103 (M.D. Pa. 2016 Mannion, J)(Court allows admission of Facebook posts to challenge Plaintiff's credibility at trial).


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

Monday, March 11, 2019

Mere Registration by a Business in Pennsylvania Sufficient to Establish Jurisdiction


In the case of Youse v. Johnson & Johnson, No. 18-3578 (E.D. Pa. Jan. 16, 2019 Baylson, J.), the court denied a Motion to Remand and denied a Motion to Dismiss filed by a Defendant on jurisdictional grounds.  

The court ruled that general jurisdiction by consent may be established where a Defendant’s only contact with Pennsylvania is the Defendant's registration within the state to do business.  

Judge Baylson noted that, until the United States Supreme Court or the Third Circuit Court of Appeals addresses the issues of general jurisdiction by consent or registration, he was bound by existing Third Circuit precedent to deny the motions at issue.  

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

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


Thursday, March 7, 2019

Call For Mock Trial Jurors for the Regional Finals - To be Held March 12th 6 pm in Monroe County Courthouse


The Mock Trial Competition in northeastern Pennsylvania is looking for volunteers for the Mock Trial Regional Competition being held on Tuesday March 12, 2019 at 6:00 PM in the Monroe County Courthouse in Stroudsburg, PA.

The winner of the Lackawanna County Mock Trial Competition will take on the winner of the Poconos Mock Trial Competition.

The Finals of the Lackawanna Mock Trial Competition is tonight at the Federal Courthouse in Scranton, PA.  Contact the Lackawanna Bar Association if you wish to serve as a juror.

If you would like to volunteer for the Regional Final at the Monroe County Court house set for next Tuesday, March 12th, please confirm with Ms. Perkins below no later than Monday March 11, 2019 at 2:00 PM:

Mecca Perkins
Event Coordinator/Administration Assistant
Monroe County Bar Association
913 Main Street
Stroudsburg PA 18360
570.424.7288
Fax: 570.424.8234