Friday, December 13, 2019

ARTICLE: 'Tis the Season to Be Civil: Lessons from 'A Christmas Story'

The below article of mine recently appeared in the November/December, 2014 edition of the Pennsylvania Lawyer Magazine and is republished here with permission.  Hope you enjoy it:

'Tis the Season to Be Civil
Lessons from 'A Christmas Story'

by Daniel E. Cummins


It’s almost that time of year again — almost Christmas Day and 24 straight hours of the movie "A Christmas Story," with little Ralphie Parker calling viewers back to their childhoods, provoking memories of the timeless, indelible and universal experiences of the holiday season.

Ralphie, narrating in his adult voice: "Christmas was on its way. … Lovely, beautiful, glorious Christmas, upon which the entire kid year revolved!" That great time of the year has come again, when, as Ralphie puts it, "We [plunge] into the cornucopia, quivering with desire and the ecstasy of unbridled avarice."

In addition to glorifying the holiday season, the movie is a gift of life lessons, some of which can even be applied to the practice of law.

* * *

Mr. Parker, reading the side of the box containing the prize he’s won: " ‘Fra-gi-ley.’ That must be Italian." Mrs. Parker: "I think that says ‘Fragile’." Mr. Parker: "Oh, yeah."

Trying to use new words in your vocabulary can cause embarrassment when more common words will suffice (um, I mean, when more common words will do). While the practice of law is filled with
Latin terms and legalese, and while some lawyers think they are fancy people who have to use fancy words just because they have a law degree, no normal person would use "heretofore" or "aforementioned" in a spoken sentence.

Speaking normally, avoiding legalese and Latin, and knowing the words you are reading or saying to others will help you to connect with a jury and, in your overall practice of law, take you further in successful interactions with others, be they jury, clients, opposing counsel or the court.

* * *

Ralphie, narrating as an adult: "My father worked in profanity the way other artists might work in oils or clay. It was his true medium."

Although the thought of using profanity in the law is often enticing, this quote does not advocate the use of such language, other than in unleashing a tirade within your mind against a vexatious opposing counsel or a cantankerous judge who has chastised or embarrassed you, just to get that anger and stress out of your system.

This quote is also offered to suggest that it pays to find a niche in a particular practice area and become a master at it. With all the loopholes and trapdoors present in the many different areas of the law, an attorney’s stress level can be reduced by sticking to fewer areas of practice in which to excel. Increasing one’s reputation in fewer areas of the law should lead to more referrals from other attorneys who dare not dabble in your area of expertise.

* * *

Ralphie, narrating as an adult: "Getting ready to go to school was like getting ready for extended deep-sea diving."

It’s a funny scene in the movie when Ralphie’s mom gets Randy, Ralphie’s younger brother, ready to go out in the cold Cleveland weather by using the universal tactic of all mothers: tugging on layers of socks, pants, shirts, coats, hats, gloves and scarves to the point that the poor kid can’t speak clearly or move his muffled arms and legs.

Layering can have a positive effect in trial preparation. Layers and layers of preparation should be applied to ensure that you know a file inside and out before you enter the courtroom. In order to make the matter properly fit your theory, each layer of your case, from opening to closing, should be neatly organized, one layer on top of the other in an orderly fashion, so the case will flow at trial. Just be sure to keep your case presentation to the salient points necessary to stay with the jury. Overdoing the layers will only serve to hamper your flexibility and muffle your message.

* * *

Ralphie: "Scut Farkus! What a rotten name. … There he stood, between us and the alley. Scut Farkus staring out at us with his yellow eyes. He had yellow eyes! So help me, God, yellow eyes."

Scut Farkus
There’s at least one in every county — a Scut Farkus-like attorney who gets off on bullying his or her way through the litigation process outside the presence of the authority figure of the court.

Unfortunately, these bullies usually train their associate attorneys to practice in the same unsavory manner, much in the way toady sidekick Grover Dill serves Scut Farkus in the movie. And so the cycle regrettably continues, as these bully attorneys abuse the rules of civility without fear of repercussions from any ethics board or judge. The Rules of Professional Conduct have no teeth in regulating civility among lawyers, and judges often ignore the consternation caused by bullying and unreasonable attorneys, not wanting to be bothered with the tedium of maintaining decorum among the attorneys inside or outside of their courtrooms. In the end, ignoring the misconduct of these attorneys ultimately reflects poorly on these particular courts.

But, as Scut Farkus learns the hard way, sometimes what goes around comes around, and, hopefully, the bully attorneys will get their due one way or the other down the line.

As noted below, "A Christmas Story" teaches us that there are at least two ways to deal with a bully.

* * *

Ralphie, narrating as an adult, describing his brother’s encounter with the bullies: "Randy lay there like a slug. It was his only defense."

As Randy lay there, the attention of Scut Farkus was fortunately diverted elsewhere. Similarly, it may pay to lie low for a day or two after first receiving a bullying voicemail, email or letter from an unreasonable and emotionally ugly opposing counsel. Bullying attorneys usually have several needless fights going on at once and it may pay not to engage immediately in response. If a response is necessary, prepare a calm, cool and collected letter to be sent by snail mail, extending the cooling-off period even longer.

More often, however, a slug-like response to such bullying is not appropriate, and standing up to the bully to protect a client’s interest is a more appropriate response.

* * *

Ralphie, narrating as an adult, describing a different kind of reaction to an encounter with the bullies: "I have since heard of people under extreme duress speaking in strange tongues. I became conscious that a steady torrent of obscenities and swearing of all kinds was pouring out of me as I screamed."
While physically pummeling or verbally going up one side and down the other of a bullying opposing attorney is (unfortunately) frowned upon in our noble profession, some bullying cannot be allowed to
go unopposed.

Unreasonable opposing attorneys usually seek out and relish verbal skirmishes as a way to compensate for and distract from their sad fears of the inferiority of their own skills, not to mention their likely lack of self-esteem and confidence.

Rather than engaging the blustery rhetoric of a totally unreasonable attorney on the phone or in person, it may be more advisable to deal with such bullying barristers at arm’s length in written confirming letters or emails to lock them into place on a particular issue and thereby prevent them from slithering out of commitments or advances made in the litigation.

Moreover, if it becomes necessary, such attorneys will usually wilt in the face of the threat of court intervention by way of a motion to compel or otherwise. One can only hope that a judge repeatedly faced with needless issues caused by a bullying attorney will someday put that attorney in his or her rightful place so the unnecessary, uncivil conduct stops.

In the end, the key is not to succumb to the jeering dares, taunts or tactics of a bullying attorney by reacting in a way that you may regret later.

* * *


Flick: "Are you kidding? Stick my tongue to that stupid pole? That’s dumb." Schwartz: "That’s ‘cause you know it’ll stick!" Flick: "You’re full of it." Schwartz: "Oh yeah?" Flick: "Yeah!" Schwartz: "Well I double-dog dare ya!" Ralphie, narrating as an adult: "Now it was serious. A double-dog dare. What else was there but a ‘triple dare you’? And finally, the coup de grace of all dares, the sinister triple-dog dare." Schwartz: "I triple-dog dare ya!" Ralphie, narrating as an adult: "Schwartz created a slight breach of etiquette by skipping the triple dare and going right for the throat!"


Just as etiquette is to be followed during the height of a playground challenge, so should etiquette be followed in the heat of a legal battle. For example, rather than skipping over professional courtesies and slapping an opponent with a discovery motion to compel on the 31st day, start with a polite "dare" to opposing counsel that his or her not answering discovery within another 30 days will provoke a motion to compel. When that time runs out, maybe even hit the opponent with a "double-dog dare" thereafter by way of a second letter noting that you will have no choice but to proceed with the motion if the responses are not promptly produced.

At later proceedings in the litigation, such as at trial, be up-front and forthright with opposing counsel regarding your plan of action, and hopefully expect the same courtesy in return. For example, let opposing counsel know your planned order of witnesses and what exhibits you intend to use.

In the end, when going toe-to-toe with opposing counsel in discovery or at trial, listen to your gut instinct and refrain from succumbing to the pressures of "dares" or tactics that might take your case in the wrong direction.

* * *

Mr. Parker: "It’s a major award." Swede: "A major award? Shucks, I wouldn’t have known that. It looks like a lamp." Mr. Parker: "Is is a lamp, you nincompoop. But it’s a major award. I won it." Swede: "Damn, hell, you say you won it?" Mr. Parker: "Yeah. Mind power, Swede, mind power."

A Major Award
The leg-lamp award in "A Christmas Story" is arguably one of the most iconic and recognizable movie props of all time. The lesson here is to remember that perceptions matter in life and in the practice of law. The movie shows that if such a ridiculous object can be viewed as a mere lamp by one person and yet a "major award" by another, there is always the chance that a skillful presentation of a weak legal argument or theory of a case may pass muster and even be accepted by others if you truly believe that what you are arguing for is the proper perception of the matter.

* * *

Just about everyone other than Ralphie: "You’ll shoot your eye out kid!"

In "A Christmas Story," the one present 9-year-old Ralphie desires most is a Red Ryder BB gun, but he is repeatedly rebuffed in this quest with the above quote from his mother, his teacher and even Santa Claus. In the end, however, Ralphie’s old man comes through with the gift on that glorious Christmas morning.

There’s no real lesson here for the legal world, rather only a hope that the holidays bring to all the gift of childlike joy, excitement and enjoyment of this wonderful season of the year.

Daniel E. Cummins is a partner in the Clarks Summit, PA law firm of Cummins Law with more than 20 years of insurance defense experience.  He focuses his practice on motor vehicle accident cases, UM/UIM matters, insurance coverage issues, and premises liability and productsliability cases.  Attorney Cummins is also available as a Mediator under Cummins Mediation Services.  He is also the sole creator and writer of the Tort Talk Blog at

Source of Images and Quotes:  A Christmas Story (1983).

Thursday, December 12, 2019

A HOLIDAY GIFT FROM TORT TALK: Complimentary Copy of the Tort Talk 2019 Civil Litigation Update Booklet

Here is a LINK to a complimentary copy of the 138 page Tort Talk 2019 Civil Litigation Update booklet that I created for use at the recent Luzerne Bench Bar Conference as well as for the Lackawanna County Bench Bar Conference.  (The PBI sells its Civil Litigation Update Booklet for $69.00!  The Tort Talk Civil Litigation Update Booklet is FREE.).

The Tort Talk 2019 Civil Litigation Update was created from the Tort Talk posts pertaining to notable decisions handed down over the past year or so and, as noted, is offered here free of charge for the readers of Tort Talk.

To the extent you may have a desire to pay it forward as they say, I would politely propose considering making a small donation to the Children's Advocacy Center in Scranton, your local Pro Bono/Legal Aid Office, or perhaps another charity of your choice in this Season of Giving.

The Children's Advocacy Center in Scranton is a private non-profitable charitable organization whose mission is to provide services in the assessment and treatment in abuse and neglect case involving children.  The Children's Advocacy Center is located at 1710 Mulberry Street, Scranton, PA 18510.  Here is a LINK to their website. 

Thanks for reading Tort Talk and and thank you for providing me with notable cases to highlight here on Tort Talk.  All is much appreciated.

I wish you Warm and Happy Holidays for you and your family.


Tuesday, December 10, 2019

Amendment Allowed Where Simply to Correct Name of Party (And Not To Add a New Party)

In the case of Thom v. CDM Auto Sales, 2019 Pa. Super. 315 (Pa. Super. Oct. 18, 2019 Olson, J., Strassburger, J., Stabile, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court ruled that the trial court abused its discretion in denying the Plaintiff’s Motion to Correct the Name of the Defendant Auto Sales Company in the caption and in the body of default judgment paperwork.

The court noted that the Plaintiff had failed to include “LLC” in the name of the Defendant in the pleadings and in the default judgment paperwork. The court ruled that there was no question that the Plaintiff had sued the right business entity but had just failed to use the proper LLC designation.

The appellate court additionally found that the Defendants did not claim or demonstrate any prejudice or surprise. It was additionally noted that the Defendants had participated in the proceedings by filing an Answer as well as a Petition to Open the Default Judgment.

The Superior Court also rejected the trial court’s ruling that Rule 1033 requests for amendments did not apply to judgments. Rather, the court noted that the rule did apply to allow for amendments of the entry of judgments where the amendment is made to simply correct the name of a party (and not to add a new party) if the amendment was made within 90 days of the expiration of the applicable statute of limitations.

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

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

Friday, December 6, 2019

Court Rules that Where Carrier Has Paid the Benefits, There Can Be No Breach of Contract

Carriers May Investigate Red Flags

In the case of Merrone v. Allstate Vehicles & Property Ins. Co., No. 3:18-cv-193 (W.D. Pa. Oct. 21, 2019 Gibson, J.), the court granted summary judgment in favor of the carrier in a bad faith action based primarily on allegations by a Plaintiff that there was no evidence to support the carrier’s lengthy investigation in an alleged arson case. 

According to the Opinion, after the Plaintiff’s house burned down, the carrier conducted a lengthy, detailed and wide-ranging arson investigation before ultimately paying the full benefits under the policy. 

The Plaintiff brought a breach of contact action for the delay payment and bad faith claim alleging that there was no evidence to support the investigation. As noted, summary judgment was granted on both claims. 

The court indicated that, “where the insurance company has paid the benefits under the policy, the insured cannot maintain an action for breach of contract.” 

The court otherwise held that payment by the carrier “negates any breach of contract action” where the carrier has paid the full policy limits and where there is no other evidence of failure to compensate. 

On the bad faith claim, the court held that an insurer can conduct investigations of questionable claims without acting in bad faith. The court found that there were red flags present in this case that were sufficient to warrant the carrier’s detailed investigation into the claims presented. 

The court in Merrone additionally held that while a payment delay can be the basis for bad faith, or a factor in a bad faith claim, the delay in and of itself might not constitute bad faith. Moreover, the court emphasized that, in order to proceed on a claim of bad faith based upon a delay in payment, an insured must produce clear and convincing evidence to establish that the carrier knew that its delay of payment was baseless. 

The record before this court established that the carrier reasonably believed that there were potential grounds to deny the Plaintiff’s claim which warranted the further investigation that was completed. 

The court also merely found that the carrier had a reasonable basis to conduct its investigation, to reasonably pursue all avenues of that investigation as new information arose, and to continue to investigate until it decided to pay the claim after the matter was fully investigated.

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

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

Tuesday, December 3, 2019

Allegations of Recklessness Allowed to Stand Based Upon Cell Phone Use While Driving

In the case of Henderson v. Palmer, No. 10035 of 2019, C.A. (C.P. Lawrence Co. Oct. 7, 2019 Cox, J.), the court denied a Defendant’s Preliminary Objections to the Plaintiff’s claims of reckless conduct based upon a Defendant driver allegedly using a cell phone and/or texting, and/or using “some other electronic device or for other reasons, in direct violation of applicable law.”

This matter arose out of a motor vehicle accident that occurred when the Plaintiff’s vehicle was rear-ended by the Defendant’s vehicle.

The court in Henderson reviewed decisions from Oklahoma and Delaware involving a Defendant’s use of a cell phone during the course of an accident. After reviewing those cases, the court in Henderson found that allegations asserting that the Defendant was using a cell phone while driving and was otherwise distracted from observing the roadway while operating a vehicle at a high rate of speed were sufficient to permit allegations of recklessness to survive Preliminary Objections.

However, the court granted the Defendant’s Preliminary Objections to the Plaintiff’s negligence per se allegations given that the Plaintiff failed to provide any factual allegations demonstrating any conduct to establish the violation of the statutes alleged.

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

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

Monday, December 2, 2019

Case of First Impression Decided by Judge Nealon on Medical Marijuana Issue in Civil Litigation Context

Addressing a case of first impression in the case of Palmiter v. Commonwealth Health Systems, Inc., No. 19-CV-1315 (C.P. Lacka. Co. Nov. 22, 2019 Nealon, J.), Judge Terrence R. Nealon reviewed Preliminary Objections filed by employers in this employment litigation raising a novel issue that has not yet been addressed by any state or federal court in Pennsylvania, that being the question of whether §2103(b)(1) of the Medical Marijuana Act (“MMA”), 35 Pa. S. §10231.2103(b)(1), which states that “[n]o employer may discharge… or otherwise discriminate or retaliate against an employee…solely on the basis of such employee’s status of an individual who is certified to use medical marijuana” creates a private cause of action for a medical assistant who was terminated by her health care employers for prescribed use of medical marijuana while not working in her place of employment.

The Defendants noted that the Department of Health has the exclusive authority to enforce the MMA’s provisions such that the employee’s sole remedy for her termination should be to seek the assessment of a civil penalty by the Department of Health.

Judge Terrence R. Nealon
Lackawanna County
After his review of the law, Judge Nealon held that there was nothing the MMA or any related regulations that vests the Department of Health, or any other state agency, with the authority to enforce the Act against private employers that have not chosen to voluntarily take part in the program.

The court also noted that the anti-discrimination provisions in the act would be rendered meaningless if an aggrieved employee could not pursue a private cause of action and seek to recover compensatory damages from an employer that violates the MMA.

As such, the court recognized an implied right of action under the act and, therefore, denied the employers’ demurrer to the employee’s private cause of action based upon §2103(b)(1).

In other decisions of note in this case, Judge Nealon did sustain demurrers to claims for invasion of privacy/intrusion on seclusion based upon the employee’s contention that her employers discovered the identity of her treating physician from their review of her medical records.

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

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