Wednesday, November 27, 2019

HAPPY THANKSGIVING



Sending you warm wishes for a Happy Thanksgiving for you and your family.

Thank you for reading and supporting Tort Talk.

With gratitude, 
Dan Cummins

Monday, November 25, 2019

Failure To Provide 6 Month's Notice to Government Defendant Should Be Raised as a New Matter Defense



In the case of Meese v. Slater-Bailey, No. 10342 of 2019, C.A. (C.P. Lawrence Co. Oct. 9, 2019 Motto, J.), the court held that an issue regarding whether a Plaintiff provided six (6) months’ notice to a governmental entity Defendant after the date of an injury regarding the claims presented was an issue that was required to be raised by way of an Answer and New Matter and not Preliminary Objections.

In this case, the Plaintiff was allegedly injured when her vehicle was struck by a school bus.

The Defendant school district filed Preliminary Objections to the Complaint raising the sole issue of whether the Complaint was legally insufficient due to the Plaintiffs’ alleged failure to provide notice to the school district and the Attorney General within six (6) months of the date of injury of the potential claim, as required by 42 Pa. C.S.A. §5522. That statute provides that an injured party must given written notice to the governmental entity Defendant prior to commencing a civil action.

The court ruled that the failure to provide the required §5522 notice was not a jurisdictional defect that could be raised by way of Preliminary Objections, particularly where the Plaintiffs were not required to plead compliance with that statute as an element of any cause of action. Rather, the court noted, the failure of written notice was an affirmative defense that a Defendant should plead in a New Matter under Rule 1030 of the Rules of Civil Procedure.

As such, the court overruled the Defendant’s Preliminary Objection and ordered the Defendant to proceed with the filing of the Answer and New Matter to the Complaint.

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

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

Thursday, November 21, 2019

Pennsylvania Superior Court Finds That Service Was Properly Completed Even Though Green Return Receipt Lost


In the case of Sawyers v. Davis, 2019 Pa. Super. 219 (Pa. Super. Oct. 22, 2019 Bowes, J., Olson, J., Stabile, J.) (Op. by Bowes, J.) (Olson, J, dissenting), the Pennsylvania Superior Court ruled that a trial court erred in dismissing the Plaintiff’s personal injury action against a defendant motorist for improper service.

This case arose out of a motor vehicle accident.

The appellate court found that the Plaintiff had offered sufficient evidence to show that he complied with the requirements of service of process under the Pennsylvania Rules of Civil Procedure. The Superior Court noted that, given that the Plaintiff had met his burden of proof on the issue of service, the burden then shifted to the Defendant driver, who had failed to offer any evidence to refute the Plaintiff’s evidence that service complied with the Rules of Civil Procedure.

The central issue in the matter involved the Plaintiff properly serving an out of state Defendant by way of a certified letter, return receipt requested. According to the Opinion, the green return receipt card was lost by the United States Post Office. However, the Post Office supplied tracking documentation that showed delivery of the letter.  Also produced by the Post Office was a scanned signature of the person who accepted the letter.

There was also additional evidence presented that the Defendant driver, who was a cousin of the Plaintiff, otherwise had notice of the lawsuit.

The appellate court found that the trial court did not view the evidence in a light most favorable to the Plaintiff as the non-moving party when it dismissed the case. The appellate court also viewed the lack of a green return receipt card as a mere technical defect. The Superior Court additionally reiterated that there was evidence that the Defendant had notice of the action.  As such, the trial court's dismissal of the lawsuit was reversed.

Anyone wishing to review a copy of the Majority decision in Sawyers may click this LINK.  The Dissenting Opinion may be viewed HERE.

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

Wednesday, November 20, 2019

Pennsylvania Supreme Court Mandates Motions Practice for First Party PIP Medical Exams


The Plaintiff’s bar scored yet another victory at the Pennsylvania Supreme Court level with decision issued by the court in the combined matters of Sayles v Allstate, No. 58 MAP 2018 (Pa. Nov. 20, 2019)(Op. by Todd, J.) and Scott v Travelers.

The case involved the practice of automobile insurance companies requesting insureds to attend PIP medical exams as may be required by the terms of the insurance policy.

The Plaintiffs argued that such policy terms requiring insureds to submit to an exam or exams at the request of the carrier irreconcilably conflicted with 75 Pa.C.S.A. Section 1796 of the MVFRL, which is entitled “Mental or physical examination of a person."

That law basically provides that, whenever a person’s medical condition is at issue in circumstances as applicable to PIP claims and other identified matters, the court may order that person to attend a medical examination “upon motion for good cause shown.”

The Plaintiff’s argument in Sayles was that Section 1796 required insurers to file a motion with the court and to demonstrate good cause in order to compel a PIP exam and that even when good cause is shown, it is the court and not the insurer who would select the examiner.

The Pennsylvania Supreme Court rejected the current practice of PIP insurers compelling its insureds to attend a PIP independent medical examinations on the basis of policy provisions and ruled that insurers must, instead, file a Petition with the Court and demonstrate good cause. Also, it will now be an independent judge who will select the medical examiner and not the carrier.

The Court declined to state whether its decision should apply only prospectively or retroactively and left that issue for another day.  See fn. 13.

Anyone wishing to review the Majority Opinion by Justice Todd may click this LINK.

Justice Baer's Concurring Opinion can be viewed HERE.

Justice Wecht's Dissenting Opinion can be viewed HERE.

I send thanks to Attorney Scott B. Cooper for bringing this case to my attention.

Commentary:  The Pennsylvania Supreme Court's decision in this regard appears to be of little moment as it is a rare event that an insured is sent for multiple independent medical examinations in the PIP context, which appears to have been the main complaint of those that pushed the issue.

Notably, to the extent that motions practice will now be required for those typical cases where an auto carrier wishes to secure an IME as part of the claims process, the Pennsylvania Supreme Court did not provide any guidance on how the already overburdened trial courts are to deal with the possible onslaught of new litigation that may result in this regard by plaintiffs who insist that the now required motions practice be followed.  Nor was any guidance provided by the Supreme Court to the trial court judges on how to select an appropriate doctor to complete the requested examination and/or what the manner, scope or conditions of the exam should be in any given case.

In the end, it appears that what was a non-issue has now been turned into a monumental problem for the trial courts going forward.

Pennsylvania Superior Court Rules that Gallagher v. GEICO Household Exclusion Decision Applies Retroactively


The Superior Court’s recent decision in the case of Kline v. Travelers, No. 104 MDA 2019 (Pa. Super. 2019 McLaughlin, J., Ford Elliott, P.J.E., Gantman, P.J.E.)(Op. By Gantman, P.J.E.), involved both the Sackett stacking issue as well as the issue of the retroactive effect of the Pennsylvania’s eradication of the household exclusion in the Gallagher v. GEICO decision.

The trial court had ruled in favor of the insured on the Sackett issue but against the insured on the household exclusion issue.. Travelers appealed the Sackett issue, and the insured appealed the household exclusion issue.

In this Kline case, the Superior Court found in favor of the insured on both issues, vacated the lower court's decision and remanded the case for further proceedings.

The case involved issues surrounding whether the Plaintiff-insured was entitled to stack his UIM coverage on two vehicles that had been added to his policy prior to the accident where the carrier did not secure new waiver of stacking forms from him.  Another issue was whether the Plaintiff-insured was able to further stack coverage under a policy separately issued to his mother.  As such, there were inter-policy and intra-policy stacking questions at issue in this case.

With regards to the Plaintiff-insured's own policy, the Court in Kline ruled that prior precedent under the Bumbarger supported its decision that the Plaintiff should be permitted to stack the coverages under his own policy.

Relative to the Household Exclusion and the retroactive effect of the Gallagher decision, the Court in Kline ruled that, as a general rule, appellate courts are required to apply the law as it exists as of the time of appellate review before the court.  After applying the law of Gallagher, the court in Kline ruled that the Gallagher case rendered the Household Exclusion invalid such that the Plaintiff-insured could pursue stacked coverage that included the coverage under his mother's policy.

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

Sending thanks to Attorney Scott B. Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this case to my attention.

Zero Verdict for Pain and Suffering Upheld Even Though Medical Expenses Awarded


In the case of Rabuh v. Hoobrajh, No. 3:17-CV-15 (W.D. Pa. Sept. 19, 2019 Gibson, J.), the court affirmed a verdict in favor of the Plaintiff in which a jury did not enter an award to the Plaintiff for pain and suffering damages even though it awarded medical expenses.

The court in Rabuh confirmed that a jury need not award pain and suffering damages every time it awards medical expenses. Rather, a jury, under Pennsylvania law, is free to reject the Plaintiff’s testimony on pain and suffering as a credibility determination.

The record before the court confirms that there were both credibility problems for the Plaintiff and also that the Plaintiff had a pre-existing condition that was put into evidence.

This decision is also notable in that the court denied an untimely Motion for Delay Damages after applying the ten (10) day deadline for such motions under Pa. R.C.P. 238.

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

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

Tuesday, November 19, 2019

Default Judgment Opened Where Petition to Open Filed Within 10 Days


In the case of Guptill v. Fortune Foreclosure, LLC, No. 10101 of 2018, C.A. (C.P. Lawrence Co. Sept. 3, 2019 Motto, J.), the court granted a Defendant’s Petition to Open a Default Judgment in a real estate transaction dispute matter.

In opening the default judgment, the court emphasized that the Defendants filed their Petition to Open within the ten (10) day period set forth in Pa. R.C.P. 237.3(b).  The Court noted that, under that Rule and the Explanatory Comment related thereto, the law presumes that a petition to open a default judgment filed within the ten (10) day period is deemed to be both timely and with a reasonable explanation or legitimate excuse for the inactivity or delay involved.

The court also found that the Defendant had presented meritorious defenses in their proposed Answer and New Matter which, if proven at trial, would justify relief for the defense from the claims made.

Accordingly, the Petition to Open the Default Judgment was granted.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 1, 2019).

Petition to Open a Default Judgment Denied


In the case of Sea-Z, LLC v. Filipone, No. 2017-08304 (C.P. Montg. Co. Aug. 22, 2019 Saltz, J.), the court denied a Defendant’s Petition to Open a Default Judgment in a case involving litigation over the terms of a lease.

According to the Opinion, the Plaintiff obtained a default judgment against the Defendants for failing to respond to the Complaint. The Defendants later filed a Petition to Open the Default Judgment after they found out about the litigation through a Writ of Execution. 

In support of their Petition to Open the Judgment, the Defendants submitted a proposed Answer. 

The court denied the Petition to Open the Default Judgment after the Defendants failed to offer any explanation as to why they failed to file an Answer to the Complaint in a timely fashion in the first place. 

The court also noted that the Petition failed in that the Defendants had failed to establish a meritorious defense to the Complaint through their proposed Answer to the Complaint.

The court noted that, while the Answer denied certain allegations pertaining to the Lease at issue, nothing in the proposed Answer denied the allegations surrounding the alleged failure of the Defendant to make payments and/or with respect to other alleged breaches of the Lease.

In this regard, the court found that the Defendants listing of a number of affirmative defenses was not sufficient because the Defendants did not offer any factual allegations in support of those defenses. 

In the end, the court denied the Petition to Open the Default Judgment. 

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


Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Sept. 24, 2019).

Monday, November 18, 2019

Summary Judgment Granted in Movie Theater Slip and Fall Matter


In the case of Elliot v. Cinemark USA, Inc., 5550-CV-2017 (C.P. Monroe Co. Oct. 4, 2019 Williamson, J.), the court entered summary judgment in favor of a movie theater in a slip and fall matter after finding that the Plaintiff did not establish that the Defendant had actual or constructive notice of the existence of a dangerous condition.

According to the Opinion, the Plaintiff went to the Defendant’s theater in the early afternoon hours to see a movie. While walking near a self-serve condiment station in the lobby, the Plaintiff slipped and fell. The Plaintiff alleged that she slipped and fell on a spill of popcorn butter.

 According to the evidence in the case, the Defendant admitted that the self-serve condiment area was known to become messy quickly such that it was the theater’s policy to clean the area every thirty (30) minutes. The Plaintiff alleged that this policy was in adequate.

The Plaintiff had testified that the floor was wet and greasy when she fell. Another witness testified to the existence of a couple of drops of some substance, about the size of a quarter, approximately three (3) feet from the counter.

The Defendant’s employees testified that they performed the required half-hour checks at the condiment station. The Defendant also provided documentation to show that the various cleaning tasks had been completed that afternoon.

Based upon the record before the court, the judge ruled that the Plaintiff did not establish that the Defendant had any actual or constructive notice of any dangerous condition. As such, summary judgment was entered in favor of the theater.

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

Source: “Digest of Recent Opinions.” The Pennsylvania Law Weekly (Oct. 22, 2019).

I send thanks to Attorney Stephanie Hersperger and Attorney Megan Zei, of the Harrisburg office of the law firm of Pion, Nerone, Girman, Winslow & Smith, P.C. for bringing this case to my attention.

Preliminary Injunction Seeking to Preclude Doctor From Working Under Covenant Not To Compete Denied


In the case of Geisinger Clinic v. Michael J. Rogan, M.D., No. 2019-CV-433 (C.P. Lacka. Co. Nov. 7, 2019 Mazzoni, S.J.), the court denied the Plaintiff’s Petition for a Preliminary Injunction seeking to enjoin the Defendant doctor from practicing medicine within a 25 mile radius based upon a restrictive covenant contained in a practice agreement between the two parties.

The court reviewed the law of restrictive covenants in this and ruled that, while there was no ambiguity in the language of the contract, the court was also required to determine whether the enforcement of the restrictive covenant would compromise the ability of the public to obtain timely and adequate medical care.

The court ruled that enforcing the restrictive covenant would have prevented the public from timely access to healthcare with the Defendant doctor. The court also emphasized that the Defendant doctor was the only physician in the area who was board certified in child abuse pediatric, which experience was utilized by the Defendant as a Medical Director for the Children’s Advocacy Center of Northeastern Pennsylvania. The court also noted that the Defendant doctor also provided medical services to special needs children at St. Joseph’s Center.

The court noted that precluding the Defendant doctor from serving either of those organizations in and of itself would be tantamount to depriving the communities of Northeastern Pennsylvania of a desperately needed service.

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


I send thanks to the prevailing attorneys, Sal Cognetti, Jr., and attorney Sarah Lloyd of the Scranton law firm of Cognetti & Cimini for bringing this decision to my attention.

Friday, November 15, 2019

Latest Appellate Decision on Defamation-Type Claims


In the case of Meyers v. Certified Guar. Co. LLC, 2019 Pa. Super. 316 (Pa. Super. Oct. 18, 2019 Murray, J., Strassburger, J., and Pelligrini, J.) (Op. by Pellegrini, J.), the Pennsylvania Superior Court ruled that a trial court erred in dismissing a Plaintiff’s claim for defamation and related torts.

According to the Opinion, the Plaintiffs were in the profession of restoring comic books and the Defendant company graded and certified comic books for valuation purposes.

This decision is notable as providing the Pennsylvania Superior Court’s latest review on Pennsylvania law pertaining to claims such as defamation, false light, tortious interference with a contract, and civil conspiracy claims.

The decision is also notable in that Pennsylvania Superior Court held that Pennsylvania did not recognize the assumption of risk doctrine as a defense to a false light claim.

In the end, the Superior Court ruled that the trial court erred in granting summary judgment on the defamation claims presented as there was evidence of communications by the Defendant that were disclosed to third parties.

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


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

Thursday, November 14, 2019

Motion To Amend Allowed in Favor of Allegations of Recklessness and Punitive Damages in MVA Case


As Tort Talkers may recall, there are two (2) lines of cases on whether allegations of recklessness and/or punitive damages should be allowed in a motor vehicle accident cases not involving intoxicated drivers.

One line of cases hold fast to the rule set forth in Pa. R.C.P. 1019 that there must be supporting facts pled for such claims to stand.

The other line of cases more liberally allow for claims of recklessness to proceed in this context as a general allegation that asserts the tortfeasor's state of mind at the time of the accident.

In those cases in which the Preliminary Objections against allegations of recklessness and/or punitive damages are sustained, it is typically provided by the court that the plaintiff may revisit the issue by way of a Motion to Amend should facts be discovered during the course of discovery to support such claims.

In the case of Novajosky v. North Penn Distributors, Inc., No. 17-CV-94 (C.P. Lacka. Co. Oct. 18, 2019 Nealon, J.), the issue of adding claims for punitive damages during the pendency of a case by way of a Motion to Amend the Complaint was considered.

The case of Novajosky involved a Plaintiff who was allegedly injured in an accident when a tractor and a lowboy unloading an excavator allegedly blocked the only clear lane of travel on a roadway and forced the Plaintiff into a snow and ice covered lane, which allegedly caused the Plaintiff to then lose control and crash his vehicle.

The Plaintiff initially filed suit against the commercial driver and his employer. The Plaintiff alleged that those Defendants negligently blocked the roadway when they knew that their actions would force other motorists to drive into the unplowed snow and icy lane of travel. The Plaintiff also asserted that the Defendant did not place, or even possess, emergency reflective triangles, fuses, or other warning devices required by federal and state law.

After the Plaintiff secured evidence in support of these allegations during the course of discovery, including expert reports in which the experts concluded that the Defendant acted recklessly and with conscious disregard for safety of others, the Plaintiff filed a Motion to Amend his Complaint to include a claim for punitive damages.

Judge Nealon noted that the general rule in Pennsylvania was that leave to amend a Complaint should be liberally granted unless the amendment seeks to assert a new cause of action after the statute of limitations has expired, or where the amendment will result in prejudice to an adverse party.

Given that a request for punitive damages does not constitute an independent cause of action and is merely incidental to an underlying claim for damages, and given that the court found that the Plaintiff’s requested amendment in this matter would merely amplify his earlier allegations without asserting a new cause of action beyond the statute of limitations, the amendment was allowed.

The court also found that the commercial Defendants did not identify any resulting prejudice which would support the denial of the Plaintiff’s Motion to Amend.

As such, the Motion to Amend the Complaint to include a claim for punitive damages was granted.

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

I send thanks to Attorney Brian Walsh of the Scranton, PA law firm of Blake & Walsh, LLC for bringing this case to my attention.

Judicial Privilege: Lawyers (Thankfully) Protecting Lawyers


In the case of Doe v. Garabedian, No. 19-1539 (E.D. Pa. Oct. 2, 2019 DuBois, J.), the court granted a Motion to Dismiss after finding that statements by an attorney, during the course of a judicial proceeding, were absolutely privileged under the judicial immunity privilege. As such, the court found that such statements by the attorney could not support an intentional infliction of emotional distress claim.

The court relied upon the judicial privilege, which holds that any statements made by a judge or an attorney, or witnesses, or parties "in the course of or pertinent to any stage of judicial proceedings are absolutely privileged and, therefore, cannot form the basis for liability for defamation."

In this case, the court found that statements made by attorneys in a demand letter prior to the institution of the formal lawsuit were protected under the judicial privilege and, therefore, could not support the Plaintiff's defamation claim.  As such, the case was dismissed.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.

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.

Wednesday, November 13, 2019

Failure to Accede to a UIM Policy Limits Demand Is Not Evidence of Bad Faith In and Of Itself


In the case of Doyle v. Liberty Mutual Ins. Co., No. 19-3460 (E.D. Pa. Oct. 4, 2019 Schiller, J.), the court dismissed a bad faith claim after finding that the pleadings contained in the Plaintiff’s Complaint were insufficient to support such a claim. Leave to amend was allowed.

By way of background, this was a UIM case in which the Plaintiff had settled with the tortfeasor for $15,000.00 and had then demanded the $300,000.00 UIM policy limits from his own carrier. When the UIM carrier refused the Plaintiff’s settlement demand, the Plaintiff filed suit for breach of contract and bad faith.

The court ruled that the Plaintiff’s Complaint failed to allege sufficient facts to support a plausible claim for bad faith. The court noted that the Plaintiff’s conclusory allegations included allegations of the UIM carrier acted in bad faith by “failing to evaluate Plaintiff’s claim objectively and fairly; failing to complete a prompt and thorough investigation of Plaintiff’s claim….[and] unreasonably withholding policy benefits[.]”

The court noted that there were no specific facts pled in the Complaint to support these generalized allegations.

Notably, the court additionally observed “the failure to immediately accede to a demand for the policy limits cannot, without more, amount to bad faith” on the part of a UIM carrier.

As noted, the court allowed the Plaintiff leave to amend the Complaint, “but only if they can plausibly do so.”

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 Fineman, Krekstein & Harris for bringing this case to my attention. Please check out Attorney Applebaum’s excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog for continuing updates on important bad faith cases  That blog can be viewed HERE.






Monday, November 11, 2019

Trivial Defect Doctrine Serves to Defeat Monroe County Trip and Fall Case


In the case of McKenzie v. Wal-Mart, No. 1540-CV-2018 (C.P. Monroe Co. Oct. 18, 2019 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted a Defendant store’s Motion for Summary Judgment in a trip and fall case.

According to the Opinion, during the afternoon hours of October 3, 2017, the Plaintiff was walking from his vehicle to the store when he tripped and fell in the parking lot due to an alleged defect in the seam between the sidewalk and a raised curb. The alleged defect was a gap that was estimated to be somewhere between one and a quarter inches wide, one and a half inches deep, and running the length of the sidewalk.

The defense filed a Motion for Summary Judgment arguing that the Plaintiff was unable to show that there was any defeat to the walking surface or that any alleged defect that was allegedly present was a trivial defect.

In response, the Plaintiff asserted that the triviality of a defect is a question of fact that should be put to the jury.

Judge Williamson pointed to Pennsylvania cases that reviewed the trivial defect doctrine and in which it had been held that an elevation, depression, or irregularity in a sidewalk may be so trivial that the court, as a matter of law, is bound to hold that there is no negligence in permitting it to exist. He also noted that the courts have held that there is no definite or mathematical rule that can be laid down as to the depth or size off a sidewalk depression necessary to give rise to liability on a landowner.

After reviewing prior decisions out of Monroe County involving similar facts, Judge Williamson noted in this McKenzie case that, reviewing the evidence in a light most favorable to the Plaintiff, summary judgment was appropriate as the circumstances surrounding the alleged defect did not rise to support any finding of negligence. The court noted that the gap at issue was clearly visible, not overly large, and appeared to be a part of the design of the sidewalk.

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

I send thanks to attorney Paraskevoula Mamounas, Esquire of the Allentown, Pennsylvania office of Thomas, Thomas & Hafer, LLP for bringing this case to my attention.

Pennsylvania Superior Court Rules that Future Medical Expenses Claims Need Not Be Reduced by Act 6

Cost Containment?

For the first time in a precedential Opinion, the Pennsylvania Superior Court addressed, in the case of Farese v. Robinson, 2019 Pa. Super. 336 (Pa. Super. Nov. 8, 2019 Lazarus, J., Kunselman, J., and Colins, J.)(Op. by Colins, J.), the somewhat recurring issue of whether a claim for future medical expenses in an automobile accident case must be reduced in accordance with the cost containment provisions under Act 6 (75 Pa.C.S.A. Section 1797) of Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL).

In this motor vehicle accident case, the jury entered a verdict in excess of $2.5 million dollars, of which $900,000 was an award for future medical expenses.

In the end, the Court in Farese held that future medical expenses did not need to be reduced in accordance with Act 6 before being presented to the jury.  See p. 21-26 of Opinion.

Although the Pennsylvania Superior Court noted that it came to its decision "pursuant to [its] review of all available writings" or decisions on this issue, the Court did not review the decision by Judge Terrence R. Nealon in the Lackawanna County case of Orzel v. Morgan (in which I was the defense counsel).  Here's a LINK to a 2011 Tort Talk blog post in which the Orzel case was reviewed and analyzed along with the Kansky case out of the Federal Middle District Court of Pennsylvania.  It is questionable at best as to whether the Pennsylvania Superior Court would have reached a different decision in the Farese case even if they had reviewed the same as part of their analysis.

Overall, the Court is Farese concluded that the limitations placed upon medical providers in terms of what they could charge for treatment of motor vehicle accident injuries (i.e., Act 6 reduced amounts) simply did not apply to claims for future medical expenses.

Anyone wishing to review the Farese decision may click this LINK.

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

Thursday, November 7, 2019

Looking to Mediate Your Case? Please Consider CUMMINS MEDIATION SERVICES



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.

No Independent Cause of Action for Spoliation Recognized in Pennsylvania


In the case of Marinkovic v. Battaglia, No. 1:14-CV-49 (W.D. Pa. Sept. 23, 2019 Baxter, J.), the court granted a Motion to Dismiss after confirming that Pennsylvania law does not recognize any independent cause of action for spoliation.  (See Op. at p. 23-29).

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

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

Wednesday, November 6, 2019

Pennsylvania Supreme Court Rules that Medical Malpractice Statute of Repose is Unconstitutional


In the case of Yanakos v. UPMC, No. 10 WAP 2018 (Pa. Oct. 31, 2019) (Op. by Mundy, J.), the Pennsylvania Supreme Court, in a 4-3 decision, ruled that MCARE's statute of repose was unconstitutional.

Typically, a medical malpractice action is governed by a two (2) year statute of limitation.  However, there may be some cases where a Plaintiff does not discover an injury that is allegedly the result of medical negligence within that two year period.  Under MCARE's statute of repose, medical malpractice actions must be brought within seven (7) years of alleged medical malpractice.

The rationale of the majority Opinion in Yanakos striking down the statute of repose under the MCARE Act was that the statute of repose was not substantially related to a governmental interest as was necessary to uphold the statute.  The Court also found that the statute of repose in the MCARE Act violated the Pennsylvania Constitution's guarantee of open access to the Courts.

The majority Opinion in Yanakos can be viewed HERE.

The Opinion of Justice Donohue, concurring in and dissenting from the result, can be viewed at this LINK.

The dissenting Opinion written by Justice Wecht can be viewed HERE.

Source:  Article - "MCARE Statute of Repose is Unconstitutional, Pa. Supreme Court Rules."  Pennsylvania Law Weekly.  By Max Mitchell (October, 31, 2019).

Tuesday, November 5, 2019

Dismissal for Lack of Personal Jurisdiction Over Foreign Corporation


In the case of Finarelli v. Monsanto, Co., No. 3:19-CV-178 (M.D. Pa. Sept. 19, 2019 Mariani, J.), the court granted a Motion to Dismiss on jurisdictional grounds under F.R.C.P. 12(b)(2) against one of the Defendants in this matter.    More specifically, the court ruled that the Plaintiff failed to establish personal jurisdiction over the Defendant, which was an advertising company.

The court rejected the argument that jurisdiction was established by the fact that the advertising company helped to plan a nationwide marketing plan. The court noted that this was not enough to create general jurisdiction everywhere in the country.

The court otherwise noted that a Defendant’s involvement in marketing does not create an exceptional case allowing for the exercise of general jurisdiction outside of the states where the Defendant is “at home.”

Judge Robert D. Mariani
M.D.Pa.
It was additionally held in this matter that interactive websites do not establish jurisdiction everywhere over a particular Defendant.

Judge Mariani's Opinion provides a thorough analysis of the current status of federal law on the issues of specific jurisdiction and general jurisdiction in federal court matters.

Anyone wishing to review a copy of this decision may click this LINK.  A copy of the Court's companion Order can be viewed HERE.

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.

Federal Court Dismisses Case Against LLC On Jurisdictional Grounds


In the case of State Farm Fire & Casualty Co. v. Electrolux Home Products, Inc., No. 19-935 (E.D. Pa. Sept. 25, 2019 Bartle, J.), the court granted a Motion to Dismiss based upon jurisdictional issues in a federal court case.

The court ruled that the citizenship of a limited liability company (an LLC), is determined by the citizenship of the members of the LLC.

The court otherwise noted that an LLC with no members is considered to be stateless and has no citizenship for purposes of diversity jurisdiction.

Here, where the court found that the parties had no diversity of citizenship, the case was dismissed for lack of federal subject matter jurisdiction.

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


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

Monday, November 4, 2019

Regular Use Exclusion Not Defeated by Gallagher v. Geico Analysis


As some auto litigators may be aware, there is a movement afoot in the Plaintiff's bar to try to use the Pennsylvania Supreme Court's decision in Gallagher v. Geico, 201 A.3d 131 (Pa. 2019), in which that court invalidated the Household Exclusion in UM/UIM automobile policies, as a means to attack the Regular Use Exclusion as well.

Under the Regular Use Exclusion, a carrier need not provide coverage to its insured where the insured was involved in an accident while using a vehicle that was regularly available for his or her use.  The rationale is that the carrier did not know of that risk when it assessed its premium to its insured when the insurance policy was sold to the insured. 

Stated otherwise, an insured cannot secure coverage for his or her use of a vehicle regularly available to be driven by that insured if the insured never told the carrier about his or her use of that vehicle and never paid a premium for such coverge.  Simply put, you can't get something (coverage) for nothing (not paying a premium).

One Plaintiff's effort to rely upon the Gallagher v. Geico rationale to defeat a Regular Use Exclusion was rebuffed by the Federal Western District Court of Pennsylvania in the case of Barnhart v. Travelers, No. 2:19-CV-00523-MJH (W.D. Pa. Oct. 28, 2019 Horan, J.).

The Court in Barnhart granted a Defendant carrier's Motion to Dismiss the Plaintiff's Complaint and denied the Plaintiff any right to amend the Complaint as the same would have been futile under the law. 

In this case, the Plaintiff was injured as a result of an accident that occurred while she was a passenger on a motorcycle that was insured by Progressive Insurance.  After the Plaintiff recovered from the tortfeasor, she pursued a UIM claim under a Travelers policy that covered two cars the Plaintiff and her husband owned.

Travelers relied upon the Regular Use Exclusion given that the motorcycle on which the Plaintiff was involved in the accident was regularly available for the Plaintiff's use and was not covered under the Traveler's policy.

The Plaintiff argued that the Regular Use Exclusion was unenforceable under the Gallagher v. Geico analysis.

The Court in Barnhart specifically held that the Pennsylvania Supreme Court's holding in Gallagher "does not extend to invalidate the 'regular use exclusion'" or to overturn caselaw that supports the continued validity of the regular use exclusion.  See Op. at p. 8.

As such, the Defendant carrier's motion to dismiss the Plaintiff's Complaint was granted because the Regular Use Exclusion was found to defeat the Plaintiff's claims.

Anyone wishing to review the Barnhart decision may click this LINK.

I send thanks to Attorneys Brigid Q. Alford and Brooks Foland of the Camp Hill, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.  I also thank Attorney Sara B. Richman Pepper Hamilton, LLC for notifying me of this decision as well.

Lebanon County Court of Common Pleas Extends Gallagher v. Geico Decision to Wider Facts


The Pennsylvania Supreme Court's decision in Gallagher v. Geico, 201 A.3d 131 (Pa. 2019), which served to invalidate the Household Exclusion in automobile insurance policies, was relied upon in a recent Lebanon County case to deny a Defendant carrier's Preliminary Objections.

In the case of Loose v. Pennsylvania National Mutual Insurance, No. 2019-00664 (C.P. Leb. Co., Oct. 23, 2019 Kline, J.), the court denied Penn National’s Preliminary Objection in a case in which a Plaintiff sought to a ruling to find the household exclusion invalid under the Gallagher decision.

In the Loose case, the Plaintiff was injured after being in an accident while on her husband’s Geico insured motorcycle.  The Plaintiff received the underinsured motorist (UIM) coverage on the motorcycle.

The Plaintiff then made a claim on her personal UIM policy with Penn National that had stacked coverage.

Penn National attempted to limit Gallagher to the facts of the case, i.e., efforts to recover UIM coverage under two separate policies that had been issued by the same carrier.  The trial court in Loose rejected the carrier's efforts to limit the scope of the Gallagher case.

Rather , the trial court in Loose held “that Gallagher's conclusion invalidating the Household Vehicle Exclusion as violative of the Motor Vehicle Financial Responsibility Law shall be permissibly extended and applied as precedent to the issue at bar.”

It therefore appears, at least in Lebanon County where the Loose case was handed down, that having different companies providing UIM coverage under a given set of facts does not change the result that the Household Exclusion is invalid as a being violative  exclusion is not valid. The trial court is now following the federal courts on this issue.

Anyone wishing to read the Loose decision may click this LINK.


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


Friday, November 1, 2019

Bicyclists Must Obey the Rules of the Road


In the case of Matthews v. Batroney, No. 2019 Pa.Super. 299 (Pa. Super. Oct. 4, 2019 Murray, J., Strassburger, J., and Pelligrini, J.) (Op. by Murray, J.), the court affirmed the entry of a verdict in favor of a Defendant in a matter in which a Plaintiff bicyclist was injured in a motor vehicle accident.

The court noted that a Plaintiff bicyclist who failed to stop at a stop sign was properly found by the jury to be 70% comparatively negligent.

The court additionally held that the jury was properly charged on statutes regarding the duty of bicyclists to obey traffic laws as well as the duty to stop at stop signs.

The court also found that that, by failing to stop at the stop sign, the Plaintiff forfeited his statutory right-of-way.

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

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