Monday, September 30, 2019

Trial Court Rules that New Matter Defenses Must Be Supported by Factual Allegations




In the case of Mayernick v. Pattie, No. 2019-GN-1434 (C.P. Blair Co. Aug. 23, 2019 Doyle, J.), the court sustained certain Preliminary Objections filed by a Plaintiff to New Matter defenses asserted by a Defendant in a case arising out of a motor vehicle accident.  

The Plaintiff alleged that the Defendants failed to plead with sufficient specificity the affirmative defenses raised in their New Matter, including defenses with respect to the statute of limitations, allegations of intervening superseding causes of the alleged damages, claims that the Plaintiff failed to mitigate her damages, and claims that the Plaintiff may have selected the Limited Tort Option.  

The Plaintiff asserted that the Pennsylvania Rules of Civil Procedure require fact pleading even with respect to New Matter defenses and that the lack of specificity subjected the Plaintiff to possible unfair surprise at trial. 

After reviewing the Pennsylvania Rules of Civil Procedure 1019(a), the court noted that general, boilerplate allegations without specific factual averments averred in support of such allegations supported the sustaining of the Preliminary Objections to the New Matter pled in this case.  

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

I send thanks to Attorney Paul T. Oven of the Moosic, Pennsylvania law office of Dougherty, Leventhal & Price for bringing this decision to my attention. 




Friday, September 27, 2019

Hills and Ridges Doctrine Protects Snow Removal Contractor From Liability


In the non-precedential case of Hare v. Zaffino, No. 1349 WDA 2018 (Pa. Super. Aug. 28, 2019 Bender, J., Dubow, J., and Ford Elliot, P.J.E.) (Op. by Dubow, J.), the Pennsylvania Superior Court affirmed a trial court’s Opinion that the hills and ridges doctrine shielded a snow removal company from liability.  

According to the Opinion, the Plaintiff fell after slipping in 5-6 inches of snow in an unplowed area of an industrial complex that had contracted the Defendant’s company to clear the snow. 

The Opinion noted that record confirmed that it was still snowing at the time of the incident.  

Under the hills and ridges doctrine, the Plaintiff might prove that the snow had accumulated in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians, and that the property owner had notice, either actual or constructive, or that condition, and that it was that dangerous accumulation of snow or ice that caused the Plaintiff to fall.  

The Plaintiff argued that, under the applicable contract, the snow removal contractor had an increased duty of care that rendered the hills and ridges doctrine inapplicable.

The court found that the snow removal agreement did not impose any general duty upon the snow removal contractor and that the hills and ridges doctrine therefore applied.  

The Court also rejected the Plaintiff's contention that the hills and ridges doctrine did not apply to the snow removal contractor because he was not the owner of the land where the Plaintiff fell.

As noted, the court found that summary judgment was appropriate under that doctrine.

If anyone wishes to review a copy of this Decision may click this LINK.

Source: Article: “Court: ‘Hills and Ridges’ Doctrine Shields Snow Removal Company from Suit” by P.J. D’Annunzio of the Pennsylvania Law Weekly (Sept. 3, 2019).

Thursday, September 26, 2019

Judge Nealon Addresses Application of Statute of Limitations Discovery Rule in Med Mal Action


In the case of Monahan v. Reedy, No. 2015-CV-6698 (C.P. Lacka. Co. Sept. 12, 2019 Nealon, J.), the court addressed the application of the statute of limitations discovery rule in the context of a medical malpractice action.  

According to the Opinion, this matter involved a medical malpractice action in which the Plaintiff alleged that the Defendant doctor damaged the female Plaintiff’s ureter during surgery, which gradually led to permanent damage to the Plaintiff’s left kidney such that the kidney had to be surgically removed four (4) years after the original alleged negligence.  

The Defendants filed Motions for Summary Judgment seeking the dismissal of the suit on the ground the lawsuit was barred by the statute of limitations based upon the application of the discovery rule which required that a plaintiff file this personal injury action within two (2) years of the date that the plaintiff knew, or in the exercise of reasonable diligence should have known, that he or she had been injured and that the injury had been caused by the doctor’s negligence.   

The court note that, reviewing the records in light most favorable to the Plaintiff as required by the summary judgment standard of review, the facts revealed that the Plaintiff did not experience any immediate or continuous signs of ureteral injury following the initial surgery and that, as she progressively developed symptoms indicative of such an injury and diminished kidney function through 2012, she was advised by her doctors that the problems were “probably hormonal.”  

After a CT scan was completed three (3) years after the original surgery, which revealed a ureteral obstruction and swelling of the kidney, that interpreting radiologist indicated that these findings could be related to the original surgery.   The Plaintiff provided the CT scan report to her doctor who informed her that the CT scans were unrelated to the surgery and were instead related to other medical conditions.  

The court noted that, prior to the filing of this suit, no other healthcare providers who treated the Plaintiff ever suggested that the Plaintiff’s symptoms or the need for a kidney removal was related to the original surgery.   

Based upon these facts, the court found that there were issues of fact as to whether the Plaintiffs, in the exercise of reasonable diligence, should have ascertained more than two (2) years prior to initiating this lawsuit that the Plaintiff had been the victim of negligence.  As such, the Motions for Summary Judgment were denied.  


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


Lackawanna Pro Bono Fundraising Gala Set for October 18, 2019


Tuesday, September 24, 2019

Plaintiff's Vehicle Need Not Have Been Actually Impacted by Defendant's Vehicle To State A Valid Claim of Negligence in Chain Reaction Accident


In the case of Sutcliffe v. Bernese, No. 4:19-cv-00317 (M.D. Pa. Aug. 12, 2019 Brann, J.), Judge Matthew W. Brann, denied a defendant’s Motion to Dismiss in a multi-vehicle accident case.  The court ruled that liability in a multi-vehicle accident situation does not require that the plaintiff’s vehicle have actually been impacted by the Defendant’s vehicle. 

In this matter, it was asserted by the defendant tractor trailer driver that his actions did not factually cause the plaintiff’s alleged injuries in this multi-vehicle accident during which numerous vehicles hit the plaintiff’s vehicle.   This particular defendant asserted that, because his tractor-trailer never came into contact with the plaintiff’s vehicle, that defendant could not be found to be a factual cause of the plaintiff’s injuries or damages.  

Judge Matthew W. Brann
M.D. Pa.
However, Judge Brann found that the Complaint alleged sufficient facts to state a claim that, but for this tractor-trailer’s alleged negligent collision with another tractor-trailer, the plaintiff would not have traveled into the left lane to avoid that collision, resulting in the subsequent collision with her vehicle by the other defendants.  

Given that the court felt that the plaintiff had pled sufficient facts both on factual and proximate causation issues, this Motion to Dismiss was denied. 

The Memorandum Opinion issued by Judge Brann can be viewed at this LINK.  The Court's companion Order can be viewed HERE.

Thursday, September 19, 2019

ARTICLE: "Trial Court Erred in Refusing to Give Adverse Inference Instruction After Videotape Lost"


Here is a LINK to an article of mine entitled "Trial Court Erred in Refusing to Give Adverse Inference Instruction After Videotape Lost" which was recently published in the Civil Litigation Update Vol. 22, No. 3 (Summer 2019) issued by the Civil Litigation Section of the Pennsylvania Bar Association.

The article analyzes the Pennsylvania Superior Court's latest analysis of the law surrounding spoliation of evidence as set forth in the Court's recent decision in the case of Marshall v. Brown's IA, LLC (June 19, 2019). 

The Brown case involved a slip and fall case in which the Defendant Supermarket failed to produce the entirety of a surveillance tape that depicted the Plaintiff's incident.


Tuesday, September 17, 2019

Lancaster County Court of Common Pleas Applies Gallagher v. GEICO Retroactively


In the Court of Common Pleas of Lancaster County case of Rutt v. Donegal, No. CI-19-02544 (C.P. Lanc. Co. Sept. 16, 2019 Brown, J.), the court addressed the application of the Pennsylvania Supreme Court’s decision in Gallagher v. GEICO, which addressed the validity of the Household Exclusion in automobile insurance policies. 

According to the Opinion, the Plaintiff was involved in a motor vehicle accident while riding on a motorcycle that was covered by a carrier other than Donegal.

The Plaintiff recovered damages from the liability policy possessed by the tortfeasor as well as under the policy that covered his own motorcycle.  The Plaintiff then turned to Donegal for additional UIM coverage under a Donegal policy that covered another vehicle in the Plaintiff’s household. 
Donegal denied the claim under its Household Exclusion contained in its policy.

The Plaintiff responded by filing suit.  Donegal filed Preliminary Objections in the nature of a demurrer, asserting that the Gallagher decision could not be applied retroactively to apply to this case. 

The court in Rutt ruled that the Gallagher decision applied retroactively and applied a rationale similar to that voiced by the Eastern District Court in its decision in Butta v. GEICO.  In so ruling, the Rutt court also read the Gallagher decision in an expansive fashion, rejecting the effort by Donegal to limit Gallagher to its facts involving separate policies that were issued by the same carrier.

Anyone wising to review this decision may click this LINK.

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

UIM Bad Faith Claim Denied Due To Conclusory Allegations


In the case of Peters v. Geico, No. 19-CV-1119 (M.D. Pa. Aug. 14, 2019 Caputo, J.), the court dismissed a Plaintiff’s UIM bad faith claim after finding numerous allegations in support of this theory of recovery to be conclusory.  

In completing his analysis, the court stripped away the conclusory allegations in the Complaint to determine whether the bad faith claim was plausible under federal pleadings standards.   Once the court stripped away the conclusory allegations, the bad faith claim was simply based upon the facts that there was an accident, a tortfeasor’s willingness to pay the policy limits, and insured’s written demand for UIM benefits supported by a medical report, followed by a UIM carrier’s failure to settle.  

The court noted that these facts, alone, did not support a claim for bad faith which requires proof of an unreasonable denial of benefits in a knowing or reckless fashion by the carrier with the knowledge that its denial of benefits was unreasonable.  

The court did allow the Plaintiff to amend the Complaint but cautioned that the Amended Complaint would be required to set forth facts and not merely conclusory allegations in support of the bad faith claim.

Anyone wishing to review a copy of this decision by Judge Caputo in the Middle District may click this LINK.

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein, & Harris for bringing this decision to my attention.   Check out Attorney Applebaum's Pennsylvania and New Jersey Insurance Bad Faith Blog for the latest notable bad faith cases.

Preliminary Objections Sustained Where Only Conclusory Allegations Set Forth in Dram Shop Action


In the case of Shultz v. Barnes, No. 18-CV-1308 (C.P. Lyc. Co. July 19, 2019 Linhardt, J.), the court sustained several Preliminary Objections filed by a Defendant in a liquor liability motor vehicle accident case given that the Plaintiff failed to allege sufficient facts to support various claims. 

According to the Opinion, the Plaintiff was the administrator of the estate of a decedent who was killed in a motor vehicle accident caused by a tortfeasor driver. The Plaintiff alleged that the tortfeasor driver was driving a motor vehicle under the influence of alcohol. 

In addition to suing the driver, the Complaint also identified the company that operated the bar where the tortfeasor driver was drinking prior to the accident as a defendant in this case. The owner and president of that bar was also listed as a defendant.  

 The Defendants filed various Preliminary Objections to the Complaint.  

The court sustained the Defendants’ Preliminary Objections to the count in the Complaint alleging a violation of the Dram Shop Act.  

The defense had argued that the Plaintiff had only provided conclusory allegations that the Defendants knew that the tortfeasor driver was visibly intoxicated while he was at the bar.   The court granted these Preliminary Objections and noted that it was not sufficient for a Plaintiff to simply allege that alcoholic beverages were served to patrons in order to support a Dram Shop action.  

The court noted that the Plaintiff failed to assert any facts regarding the physical appearance of the tortfeasor Defendant driver in terms of whether he was visibly intoxicated or not while he was served at the bar.   Although this Preliminary Objection was sustained, the Plaintiff was granted an opportunity to file an Amended Complaint.  

Relative to the Preliminary Objections filed by the individual Defendant, the court found that the Plaintiff failed to allege sufficient facts to pierce the corporate veil.   Again, the Plaintiff was granted an opportunity to file an Amended Complaint in this regard.  

The court also sustained Preliminary Objections to the Plaintiff’s wrongful death claim given that that claim was brought not only on the Plaintiff’s behalf but also on behalf of entities who were allegedly entitled to damages for reasonable hospital, nursing, and medical expenses, as well as funeral expenses, burial expenses and other losses.  The court noted that, under the Rules of Civil Procedure, such allegations were improper in a wrongful death claim.  As such, the Preliminary Objections in this regard were sustained.   Again, the Plaintiff was granted leave to file an Amended Complaint.

Lastly, the court also sustained Preliminary Objections to the allegations of recklessness and the claims for punitive damages under a finding that the Plaintiff failed to allege sufficient facts to support these allegations.   The court noted that, should discovery later reveal facts supporting an award of punitive damages on separate claims, the Plaintiff would be allowed to seek an amendment at that time.   

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (August 27, 2019).    

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 Pleas, 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.