Friday, January 17, 2020

Issues of Fact Stall Decision on Whether Defendant Employer Protected by Worker's Compensation Immunity Provisions

Source:  Shutterstock

In the case of Ravier v. Gearhart, No. 6676-CV-2017 (C.P. Monroe Co. Nov. 1, 2019 Williamson, J.), the court denied a Motion for Judgment on the Pleadings filed by Additional Defendants in a personal injury action involving a workplace accident.

The Plaintiff filed suit against various Defendants who had joined certain Additional Defendants. The Additional Defendants filed a Motion for Judgment on the Pleadings asserting that they were immune from suit in this personal injury action under the Workers’ Compensation Act as the Plaintiff’s employer at the time of the accident.

The court denied the motion based upon their being issues of fact and uncertainty as to which entity was the Plaintiff’s employer at the time of her accident. The court noted that additional discovery was necessary before it could rule on the Additional Defendants’ claims of immunity.

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

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

Thursday, January 16, 2020

Superior Court Rules That Default Should Have Been Opened Where Defects in Service Noted


In the case of Digital Commc’n Warehouse, Inc. v. Allen Inv., LLC., 2019 Pa. Super. 341 (Pa. Super. Nov. 15, 2019) (Op. by Bender, J.), the Pennsylvania Superior Court ruled that a trial court was obligated to grant a Petition to Open a Default Judgment where the Defendant was found to have offered a valid dispute as to the validity of service of the Complaint. The court noted that improper service would negate the trial court’s jurisdiction over the Defendant.

This matter arose out of a contract dispute. A default judgment was entered when the Defendant did not respond to the Complaint or enter an appearance.

As noted, on appeal, the court accepted the argument that the entry of a default judgment was a nullity because the trial court lacked jurisdiction given that the Plaintiff allegedly failed to properly serve the underlying Complaint.

While the court noted that the Defendant was not entitled to have the judgment stricken under a procedural rationale, the Defendant was entitled to have the judgment opened on an equitable basis for the reasons noted.

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Dec. 3, 2019).

Motion To Remand Denied; Joinder of Store Manager As Non-Diverse Defendant Was Not Frivolous


In the case of Badman v. Wal-Mart Stores, Inc., No. 19-4246(E.D. Pa. Nov. 6, 2019 McHugh, J.), the federal court granted a Motion to Remand the case back to state court.

The federal court rejected the claim by the Defendant that the Plaintiff fraudulently joined a non-diverse party in an effort to defeat diversity jurisdiction. Here, the Plaintiff sued the store manager in addition to Wal-Mart.  The store manager was a resident of Pennsylvania like the Plaintiff.

The court held that store manager may be liable for injuries suffered by an invitee to the store that the manager helped to manage.  The court noted that, while such a claim against the store manager may be found to be weak or invalid, given the potential liability of the store manager under Pennsylvania law, it could not be said that the joinder of the store manager as a party Defendant was frivolous.   As such, a fraudulent joinder in the context of a removal of the case to federal court was not found.

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 Reed Smith law firm for bringing this case to my attention.

Superior Court Affirms Dismissal of Case Due to Service of Process Issues

In the non-precedential case of Phillips v. Triple G Farms, Inc., No. 514 MDA 2019(Pa. Super. Oct. 22, 2019 Nichols, J., Dubow, J., Musmanno, J.) (Op. by Nichols, J.) (non-precedential), the court affirmed summary judgment in favor of the Defendant due to the Plaintiff’s failure to properly complete service of process. 

The court relied upon the line of cases following Lamp v. Heyman

According to the Opinion, the Plaintiff failed to serve the Defendant prior to the expiration of the statute of limitations. 

The court noted that Plaintiff’s counsel sent the Writ of Summons to the county Prothonotary for service but did not further affirmatively check on the status of service of the Writ for over six (6) months. The court found that this failure to ensure notice to the Defendant justified the dismissal of the case. 

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 Reed Smith law firm for bringing this case to my attention.

Tuesday, January 14, 2020

Corrected Link With Complete Copy of Judge Gelb's Decision in Sterba Case

Here is a corrected LINK to a copy of Luzerne County Judge Lesa Gelb's decision in Sterba v. North End Heritage Parking Co-Ops, LLC, No. 2017-074 (C.P. Luz. Co. Gelb, J.), in which the court granted the Motion for Summary Judgment filed by North End Heritage Parking in a slip and fall case involving black ice in a parking lot.

The Tort Talk post came out in this case a couple of days ago but the copy of the Court's decision to which the Link was connected was missing a few pages.  The above Link should have all of the pages.  Sorry for any confusion in this regard.

Chronic Marijuana Use Found Relevant to Claim for Future Earnings But Not on Life Expectancy


In the case of Koch v. Musser, No. 17-613 (C.P. Lycoming Co. Sept. 1, 2019 Linhardt, J.), the court granted in part and denied in part a Plaintiff’s Motion In Limine to preclude a Defendant from offering any evidence of his chronic marijuana use in a civil litigation matter.

The court sustained the motion and precluded the evidence relative to the Plaintiff’s alleged use of marijuana on the date of the incident.

However, the court did find that the Plaintiff’s alleged chronic use of marijuana was relevant and admissible to the issues of his future earning capacity. The court noted that deposition testimony had established that the Plaintiff had lost employment and had difficulty obtaining and maintaining employment due to his chronic marijuana use. It is also noted that his chronic marijuana use could also bar him from certain future employment opportunities.

As such, the court found that the evidence of the Plaintiff’s marijuana use was sufficiently probative on the question of his future earnings so as to be admissible.

 However, the court held that it would exclude the evidence of the Plaintiff’s chronic marijuana use as a fact relevant to his future life expectancy unless expert medical testimony was provided in that regard.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 12, 2019).

Sayles Decision Limited to Pre-Suit Claims by Federal Court Case


In the case of Loughery v. Mid-Century Insurance Co., No. 19-383 (W.D. Pa. Dec 23, 2019 Dodge, Fed. Mag. J.),a Western District Federal Magistrate Judge addressed the issue of the proper procedure for an insurance company to compel compliance by a Plaintiff relative to attending a medical examination under a first party medical benefits claim when a first party benefits case was already in suit. 

Before the Court was a motion by the carrier, pursuant to Federal Rule of Civil Procedure 35, which is entitled “Physical and Mental Examinations,” to compel the Plaintiff to attend a medical exam.

The Plaintiff asserted that, under its recent decision in the case of Sayles v. Allstate Ins. Co., --- A.3d --- (Pa. Nov. 20, 2019), the Pennsylvania Supreme Court established the proper method for scheduling an exam under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) as requiring motions practice and the securing of a court order.

While the court agreed that the Sayles decision may apply to pre-suit requests for medical exams in the first party contest, once a first party lawsuit was filed in Federal Court, then F.R.C.P 35 was to be applied. 

Applying F.R.C.P. 35 to the case before it, the Loughery court found that there was good cause shown by the carrier for the exam.

Anyone wishing to review this decision by Western Federal Magistrate Judge Dodge may click this LINK.
I send thanks to Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this case to my attention.

Monday, January 13, 2020

Judge Williamson of Monroe County Rejects Request for Attorney's Fees in Trip and Fall Matter


In the case of Ezro v. Buck, LP, No. 5279-CV-2019 (C.P. Monroe Co. Oct. 25, 2019 Williamson, J.), the court denied a demurrer asserted by the Defendants in this negligence slip and fall case. However, the court did sustain Preliminary Objections regarding the existence of an agency relationship as well as with respect to the Plaintiff’s claim for attorney fees.

The court granted the Plaintiff leave to file an Amended Complaint to more specifically list Defendants under an agency relationship.

Judge David J. Williamson
Monroe County

Relative to the claim for attorney’s fees in this trip and fall matter, Judge David J. Williamson confirmed that the American Rule applied in Pennsylvania and generally holds that attorney’s fees are recoverable unless specifically provided by statute or by clear agreement of the parties. No such authorization for an attorney’s fee award was found in this case.

The court did otherwise note that the Plaintiff was entitled to pursue delay damages under Pa. R.C.P. 238(a)(1) and that a decision on the appropriateness of such damages would be reserved until after a verdict has been entered.

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Dec. 3, 2019).

Judge Gelb of Luzerne County Enters Summary Judgment in Black Ice Slip and Fall Case

Black ice


In the case of Sterba v. North End Heritage Parking Co-Ops, LLC, No. 2017-074 (C.P. Luz. Co. Gelb, J.), the court granted the Motion for Summary Judgment filed by North End Heritage Parking in a slip and fall case involving black ice in a parking lot.

According to the Opinion, snow squalls had occurred earlier in the day of the accident. By the time the Plaintiff got to the parking lot in question later than evening, her car did not skid or encounter any ice or snow. Additionally, the Plaintiff admitted that she did not see any ice or snow on the ground when she got out of her vehicle. 

After slipping and falling, the Plaintiff discovered a patch of black ice under her. She had to slide herself back two (2) arm lengths off of the icy area in order to be able to stand. 

The Plaintiff admitted that she did not know how long the patch of ice was on the parking lot surface before she fell. 

The record otherwise indicated that the snow that had fallen earlier in the day had been plowed and pushed against the back of the lot. 

The record also noted that the patches of black ice were concentrated towards drains in the back of the parking lot as melting snow from earlier in the day had moved towards the drains and the water had refroze. 

After reviewing the current status of Pennsylvania law regarding the duties owed by a possessor of land, the court held that, given that there was no evidence of the length of time in which the icy patches had existed prior to the Plaintiff’s fall, the Plaintiff could not sustain their burden of proof.
Judge Lesa Gelb
Luzerne County
In a footnote, Judge Gelb notably indicated that “[i]ce is more akin to a transitory spill than to a semi-permanent condition of land because it can develop suddenly and even melt in a short period of time depending on environmental conditions.” 

In light of this finding, the court stated that it was “inconsequential to the issue of constructive notice that Plaintiff saw the black ice immediately after her fall as no one saw the ice prior to the fall and the duration of its existence in the parking lot cannot be determined on this record.” See fn. 2. 

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

I send thanks to Attorney William P. Cech of the Wilkes-Barre, PA law offices of Robert T. Panowicz & Associates for bringing this case to my attention.

Summary Judgment Granted in Fall on Ice Case


In the case of Sanchez v. Snowshoe Condo. Ass’n, Inc., No. 9276-Civil-2015 (C.P. Monroe Co. Sept. 19, 2019 Williamson, J.), the court granted summary judgment in favor of a Defendant in a slip and fall case where the Plaintiff failed to establish how the icy condition was created or how the Defendant could have had actual or constructive knowledge of the condition.

According to the Opinion, the Plaintiff lived at a property located within the Defendant’s condominium association.

At approximately 6:00 a.m. on a December morning, the Plaintiff left her home to take her dog for a walk. When she returned to her unit approximately 15 minutes later, the Plaintiff slipped and fell on an icy spot on a bottom step leading into her unit.

Judge David J. Williamson
Monroe County

Judge Williamson cited to Pennsylvania law that confirmed that property owners were not required to keep the premises completely free of snow and ice at all times. Rather, under the hills and ridges doctrine, owners were not liable when there were generally slippery conditions and where the ice and/or snow had not yet accumulated into unreasonable ridges or elevations. Rather, the law only requires that a property owner act within a reasonable time, after notice, to remove snow and ice when it presents as a dangerous condition.

In this matter, both the Plaintiff and her daughter testified that they did not know when or how the ice had formed. The Plaintiff also admitted that she did not notice the ice the night before or even when she had left her home to begin to take a walk with her dogs. The court also noted that her fall occurred while it was still dark outside.

In the record before the court there were weather reports that showed that no precipitation had fallen on the date in question. The court found that, given the lack of precipitation, it was unclear how a Defendant landowner would have known about the alleged formation of any ice.

Judge Williamson stated that there was no other evidence to indicate that the icy condition had existed for such a long period of time that the Defendant knew about it or should have known about it. At most, it appeared that the condition may have existed for a few hours between the sunset and sunrise. The court held that this was not a reasonable time frame in which to expect a Defendant to locate and correct an allegedly icy condition.

Based upon the above, the court granted the Defendant’s Motion for Summary Judgment after finding that the Plaintiff had failed to establish a prima facie case of negligent in terms of how the alleged icy condition occurred or how the Defendant could have known about it.

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).



Friday, January 10, 2020

PLEASE SAVE THE DATES TO VOLUNTEER FOR THE LACKAWANNA COUNTY MOCK TRIAL COMPETITION





Low But Reasonable Offer Does Not Amount to Bad Faith in UIM Context


In the case of Rau v. Allstate Fire & Cas. Ins. Co., No. 19-1078 (3d Cir. Nov. 27, 2019 Chagares, J., Jordan, J., Restrepo, J.), the Third Circuit Court of Appeals affirmed the entry of summary judgment in favor of the carrier on a bad faith in a case presided over by Federal Middle District Judge Robert D. Mariani at the trial court level. 

In this UIM case, the third party tortfeasor had paid $95,000.00 out of a $100,000.00 liability policy.

The UIM carrier initially made an offer of $10,000.00 to settle the UIM claim. The Plaintiff had demanded the full $200,000.00 UIM policy limits and filed suit when her demand was not met.

During the course of the matter, the carrier increased its offer to $50,000.00. 

The parties agreed to a high/low arbitration with the high parameter being the $200,000.00 policy limits and a low parameter being $10,000.00. The arbitrator found that the total claim was worth $306,345.00 and calculated the carrier’s responsibility under the UIM policy to be $160,786.78.
In its Opinion, the Third Circuit confirmed the rule of law that a “low but reasonable estimate of the insured’s losses” does not amount to per se bad faith. The court additionally noted the rule of law that alleged negligence or bad judgment on the part of a carrier will not support a bad faith claim.

Reviewing the record before it, the Third Circuit found that the trial court had properly found that, based upon the undisputed facts in the record, the carrier has a reasonable basis for contesting the insured’s UIM claim. More specifically, the record revealed that, a large portion of the Plaintiff’s evaluation of her claim was attributable to an alleged potential future surgery. 

It was also noted that an independent medical examination disputed the Plaintiff’s claim that she would need that future surgery.
Robert D. Mariani
M.D.Pa.
The record also showed that the Plaintiff had additional health coverage that would defray the cost of the alleged need for future surgery. It was also noted in the Opinion that the carrier believed that the Plaintiff was exaggerating her symptoms during her deposition that was completed in the underlying UIM litigation.

Viewing the record as a whole, the Court of Appeals agreed that the Plaintiff could not demonstrate the absence of a reasonable basis on the part of the carrier to deny the UIM benefits. As such, Judge Mariani's entry of summary judgment for the carrier was upheld.

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


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

Unsettled Issues of State Law Pertaining to UIM Claim Leads Federal Court to Remand Case Back to State Court



In the case of Sherer v. Federated Mut. Ins. Co., No. 19-2530 (E.D. Pa. Oct. 22, 2019) (Mem. Op. by DuBois, J.), the court granted a Plaintiff’s Motion to Remand his UIM breach of contract action back to the state court.

This matter arose out of a motor vehicle accident. The Plaintiff secured the liability limits from the other driver and then sought UIM benefits under his employer’s policy

The UIM carrier denied coverage because the employer had allegedly properly waived UIM coverage.

The Plaintiff sued in state court asserting that the rejection of UIM protection by the employer failed to comply with Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL), that the denial of UIM benefits violated the MVFRL, and that the failure of the carrier or the employer to notify the Plaintiff of the waiver of coverage violated the MVFRL.

The Defendant removed the action to federal court and the Plaintiffs filed a Motion to Remand the case to state court.

The court found that the claims raised in this matter involved unsettled issues of state law that were peculiarly within the purview of the Pennsylvania state court system. As such, the court granted the Motion to Remand.

Anyone wishing to review a copy of this case may click this LINK.  The companion Order can be viewed HERE.


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

Thursday, January 9, 2020

ARTICLE: YEAR-END REVIEW: ANOTHER YEAR OF NOTABLE DECISIONS IN Pa.

This article recently appeared in the January 2, 2020 edition of the Pennsylvania Law Weekly and is reprinted here with permission.  Images have been added here that were not in the original article.

My year-end review article covering the top cases and trends in Auto Law matters is forthcoming.



Year-End Review: Another Year of Notable Decisions in Pa.

By Daniel E. Cummins | January 02, 2020 at 10:24 AM


Daniel E. Cummins
CUMMINS LAW
















A number of notable decisions were handed down over the past year by the various courts of Pennsylvania on general civil litigation issues not involving motor vehicle accident matters. Here is a sampling of decisions of note from 2019.

Attorney Work Product Doctrine











In BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2019), the Pennsylvania Supreme Court provided its latest review of the attorney work product doctrine. The court addressed the issue of whether a law firm’s pre-litigation emails sent to a public relations firm served to waive the attorney work product doctrine. 

The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner that significantly increased the likelihood that an adversary or anticipated adversary would obtain it. This matter was remanded back to the trial court for an application of the newly articulated work product waiver analysis.

Premises Liability










Decisions handed down in 2019 served to continue the trend of courts ruling that plaintiffs cannot recover for injuries resulting from slip-and-fall events that occur while it is still snowing. 

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

According to the opinion, the plaintiff slipped and fell while leaving the property while snow and freezing rain was falling.

In reviewing the defendant’s motion for summary judgment, the court in Rosatti cited to Collins v. Philadelphia Suburban Development, 179 A.3d 69, 75 (Pa. Super. 2018), and 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.” 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. As such, summary judgment was granted.

In the case of Beauford v. Second Nature Landscaping & Construction, No. 20 16-CV-8925 (C.P. Del. Co. Nov. 19, 2018 Green, J.), the court also cited to the Collins case and held that a defendant landowner was not liable for alleged injuries suffered by a plaintiff in a slip and fall event that occurred during an active storm since the defendant had no obligation under Pennsylvania law to correct the conditions until a reasonable time after the storm ended. 

Service of Process
In 2019, there was a plethora of cases that were dismissed due to a plaintiff’s failure to properly or timely complete service of original process.
The latest appellate court review of the application of the Lamp v. Heyman line of cases can be found in Sawyers v. Davis, 2019 Pa. Super. 219 (Pa. Super. Oct. 22, 2019). In Sawyers, 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. 

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 U.S. Post Office. However, the post office did supply tracking documentation that confirmed delivery of the letter. Also produced 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 technical defects at issue in this case did not warrant the dismissal of the action, particularly where it was clear that the defendant had notice of the suit and no prejudice was found.

Bad Faith

Over the past year, one recurring bad faith issue reviewed by the federal courts involved the proper pleading of a bad faith claim against an insurance company. The Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog written by Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris is an excellent resource to find the latest cases on a wide variety of bad faith issues.

One case from 2019 that involved proper pleadings in a bad faith complaint was the case of Rosenthal v. American States Insurance, No. 1:18-cv-01755 2019, M.D. Pa. March 26, 2019 Kane, J.). In Rosenthal, the court dismissed a bad faith count in a UIM case but allowed the plaintiff leave to file an amended complaint. 

Generally speaking, the court in Rosenthal noted that failing to plead descriptions of what a carrier actually did or failed to do, or why they did it, can be fatal to a bad faith claim under the Federal Rules of Civil Procedure. 

Judge Yvette Kane additionally held that identifying the difference between a demand and an offer alone cannot serve as the basis for claim for bad faith, absent allegations that the carrier acted unreasonably and in bad faith by making the lower offer. 

As noted, despite the many faults found with the complaint, as is typical, the court in Rosenthal allowed a second bite at the apple by granting the plaintiff leave to file an amended complaint. Other cases from the past year show that the federal courts are not wont to allow more than two attempts to file a properly pleaded bad faith complaint.

For example, in the case of Moran v. USAA, No. 3:18-cv-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.), the court had previously dismissed a plaintiff’s bad faith claim without prejudice and leave to amend to correct certain issues with the complaint. However, when challenges were again made to the amended complaint that was filed, the court dismissed the action

Judge A. Richard Caputo
M.D.Pa.
In Moran, the court noted that the only additional pleadings added to the original complaint were facts that possibly supported the plaintiff’s evaluation of the claims presented, but no new facts were added to support the allegation that the carrier’s settlement offer was allegedly unreasonable. Nor were any new facts to show how the carrier allegedly knew or recklessness disregarded the fact that its offer was unreasonable. Further leave to amend the Complaint was not granted. 






Fraternities

Last year also gave rise to a number of decisions in cases involving personal injuries at fraternities.

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

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

A motion to dismiss was also addressed in the federal court case of Piazza v. Young, No. 4:19-CV-00128 (M.D. Pa. Aug. 27, 2019 Brann, J.), which arose out of fatal injuries allegedly sustained by a student at Pennsylvania State University allegedly as a result of hazing activities in a fraternity. The court granted the motions in part and denied the motions in part. 

Judge Matthew W. Brann
M.D.Pa.
Of note, with respect to those fraternity brothers defendants who were under the age of 21, the court allowed the claims of the plaintiff to proceed against those underaged defendants under the plaintiff’s theory of recovery to hold the defendants liable for breaching an alleged protective duty that the defendants, as fraternity members, allegedly owed to the plaintiff’s son, a fraternity pledge.

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

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

Products Liability

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

The court in Davis noted that, although the plaintiff argued that the trial court judge should not have instructed the jury on both tests, Pennsylvania law under Tincher allowed jury instructions on both tests where evidence was presented by the defense at trial regarding the same. According to the opinion, the defense put in evidence that, according to the trial court and the appellate court, put the risk-utility test at issue in this crashworthiness case.

Medical Malpractice

Typically, a medical malpractice action is governed by a two-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 the Medical Care Availability and Reduction of Error Act’s (MCARE) statute of repose, medical malpractice actions must be brought within seven years of alleged medical malpractice.

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

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.

Medical Marijuana

With the recent allowance of medical marijuana in Pennsylvania, a number of legal issues can be expected to arise. One area of civil litigation will involve whether a person’s use of medical marijuana can impact her status as an employee at work.

In a case of first impression called Palmiter v. Commonwealth Health Systems, No. 19-CV-1315 (C.P. Lacka. Co. Nov. 22, 2019), Judge Terrence R. Nealon addressed preliminary objections filed by employers in this employment litigation raising the issue of whether 35 P.S. Section 2103(b)(1) of the Medical Marijuana Act (MMA), which states that “no 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 due to the employee’s prescribed use of medical marijuana while not working in her place of employment.

The defendants filed preliminary objections to the complaint and asserted that the Department of Health had the exclusive authority to enforce the MMA’s provisions such that the employee’s sole remedy for her termination was to seek the assessment of a civil penalty by the Department of Health.

After his review of the law, Nealon held that there was nothing the MMA or related regulations that vests the Department of Health, or any other state agency, with the authority to enforce the act against private employers. 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 had violated 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 Section 2103(b)(1).

It remains to be seen how the allowance of the use of medical marijuana will continue to give rise to civil litigation issues going forward.

Looking Ahead












The Supreme Court of Pennsylvania has granted allocatur in the case of Bourgeois v. Snow Time, No. 768 MAL 2018 (Pa. June 25, 2019) involving a snow tubing accident. Notably, the court will address the duties owed by a snow tubing facility (previously established in Tayar v. Camelback), and whether evidence of industry standards is required to sustain a cause of action in recklessness or gross negligence.

Another future decision to watch out for will be the Pennsylvania Superior Court’s decision in the case of Fisher v. Erie Insurance Exchange, No. 1597 WDA 2018, in which the court will address whether documentation in a defense attorney’s file regarding the evaluation of a UM/UIM case is protected from discovery by the attorney-client privilege and the attorney work product doctrine.



Daniel E. Cummins is a partner in the Scranton area law firm of Cummins Law where he focuses his practice in automobile accident, premises liability, and products liability litigation matters.  He also provides mediation services through Cummins Mediation Services.

Wednesday, January 8, 2020

Summary Judgment Granted in Slip and Fall Where Plaintiff Cannot Prove Dangerous Condition and/or Notice



In the case of Biggs v. Sam’s East, Inc., No. 18-945(W.D. Pa. Oct. 24, 2019 Pupo Lenihan, J.), the court granted summary judgment in favor of a Defendant store after the Plaintiff failed to produce sufficient evidence that the Defendant had actual notice or constructive notice of an allegedly slippery condition on the floor of the premises that allegedly caused the Plaintiff to fall.

According to the Opinion, the Plaintiff was sitting at a table in a cafĂ© in the store when she noticed an elderly woman at an adjacent table fall. The Plaintiff did not know the cause of the woman’s fall and did not recall seeing anything around her seating area.

The Plaintiff got up from her seat to assist the elderly woman and the Plaintiff fell as she walked towards that person.

The Plaintiff testified that she did not notice the floor in front of her prior to her fall. The Plaintiff alleged that the floor was slippery and that, after the incident, she noticed that her pant leg felt damp. However, she did not identify any foreign substance on the floor.

The court entered summary judgment agreeing with the defense position that the Plaintiff failed to establish the presence of a dangerous condition and failed to establish that the Defendant had any notice of any allegedly dangerous condition.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 12, 2019).


If you need assistance bringing your premises liability case to a close, please consider arranging for a mediation with Cummins Mediation Services.  Please contact me at dancummins@CumminsLaw.net to schedule your Mediation.



Summary Judgment Denied in Fall Down Off of Fitting Platform in Store

Here's a Recipe for Disaster:

-Two high heels

-Pants that require hemming

-One Fitting Platform



In the case of Dorfmiester v. Nordstrom, Inc., No. 19-1958 (E.D. Pa. Nov. 21, 2019 Savage, U.S.D.J.), the court denied a Defendant’s Motion for Summary Judgment in a premises liability case where the court found issues of fact as to whether or not the tripping hazard was known or obvious to the Plaintiff and/or whether the Defendant’s employees knew or should have known of the risk of injury.

According to the Opinion, the Plaintiff frequently shopped at the Nordstrom store and often had clothes fitted or altered, during which she was required to step on and off a fitting platform similar to the one involved in the subject incident.

On the date of the incident, the Plaintiff stepped onto the fitting platform. She was wearing pants that were touching the floor and required hemming.

The Plaintiff alleged that an employee instructed the Plaintiff to step back to get a better look at the pant length. However, the Plaintiff’s heel became tangled in the fabric of the pant leg, causing the Plaintiff to fall and fracture her ankle.

The Plaintiff filed suit alleging that the store and its employees were negligent in failing to warn the Plaintiff of the tripping hazard posed by an unhemmed pant leg and in failing to assist her on the fitting platform.

The defense filed a Motion for Summary Judgment arguing that it had no duty to warn of or guard the Plaintiff from an obvious danger.

The court denied summary judgment finding genuine issues of material fact. The court noted that, although the defense asserted that the risk of stepping off of the platform in unhemmed pants while wearing heels was obvious to the Plaintiff in that she failed to exercise reasonable care and judgment for her own safety, a triable issue of fact was found as to whether the danger was known or obvious given the Plaintiff’s allegation that she was acting at the direction of the Defendant’s employee when she fell.

The court ruled that it was for the jury to decide whether the employee’s instructions to the Plaintiff created a false sense of security that interfered with the Plaintiff’s ability to appreciate the dangers of stepping down from the platform.

The court further ruled that there was an issue of fact as to whether the Defendant’s employees should have anticipated the danger to the Plaintiff given that the employees admitted that they did not think the pant length posed a tripping hazard and that the Plaintiff had never requested help in stepping down from the platform.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 10, 2019).

Tuesday, January 7, 2020

Punitive Damages Claim Allowed to Proceed Against Medical Corporation in Med Mal Case


In the case of Garvey v. Adamo, No. 19-CV-1893 (C.P. Lacka. Co. Dec. 17, 2019 Nealon, J.), the court addressed the issue of vicarious liability of a healthcare provider for punitive damages. 

According to the Opinion, the Plaintiff in this matter instituted a medical malpractice action against his former treating physician, that doctor’s medical partners, and their professional corporation, under allegations that the doctor prescribed opioids to the Plaintiff in excessive amounts, causing the Plaintiff to become drug-dependent and require treatment for an opioid addiction. 

The Plaintiff alleged in the Complaint that the doctor’s professional corporation and his partners knew, or had reason to know, of the doctor’s improper administration of opioids, which actually cumulated in the doctor’s guilty plea in a criminal case. 

Judge Terrence R. Nealon
Lackawanna County
Before the court were Preliminary Objections filed by the professional corporation seeking to dismiss the punitive damages claim pursuant to §505(b) of the Medical Care Availability and Reduction of Error (MCARE) Act. 

Judge Nealon ruled that, under §505(c) of the MCARE Act, a healthcare provider may be vicarious liability for punitive damages only if it was aware of the agent’s reckless conduct and allowed it to occur. 

Judge Nealon wrote, as he has done in the cases involving motor vehicle accidents that, although recklessness is a condition on the mind that may be averred generally under Pa. R.C.P. 1019(b), in this case the Plaintiff had alleged that the professional corporation “had actual notice” of its doctor’s unconscionable administration of opioids and still “allowed the conduct” by the doctor to continue. Based on these allegations, the court overruled the corporation’s demurrer to the punitive damages claim. 

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

I send thanks to Attorney Jonathan Comitz of the Wilkes-Barre, PA law firm of Comitz Law Firm, LLC for bringing this case to my attention. 

Motion To Bifurcate Coverage Question From Post-Koken UM Case Granted in Part and Denied in Part in Lackawanna County

In the Post-Koken UM case of Caridad v. Caridad, No. 2014-CV-6070 (C.P. Lacka. Co. Nov. 19, 2019 Bisignani-Moyle, J.), Judge Margie Bisignani-Moyle of the Lackawanna County Court of Common Pleas addressed a defendant carrier's motion to bifurcate a trial.

In this case, the defendant carrier was asserting as a defense in this breach of contract UM claim that there was no coverage due to the Plaintiff because the Plaintiff was not a resident of the insured's household at the time of the accident. 

In addition to arguing that bifurcation was not warranted under the case presented and would not support the interests of judicial economy, the Plaintiff argued that a  separate declaratory judgment action on the issue of coverage had not been filed and that, therefore, the coverage action was not in issue in this matter.

The defense countered with the argument that there was no breach of contract as there was no coverage under the policy in the first place.

Judge Margie Bisignani-Moyle
Lackawanna County
The Court granted the motion to bifurcate in part and denied it in part.  The court granted the motion to bifurcate to the extent that the court ruled that the issue of residency and coverage would be addressed first.  Although the defense asserted that the coverage question was one of law for the court to decide, the court initially ruled that the coverage question would go to the jury.  The Court appeared to rule in this fashion as there were factual issues on the question of residency to be resolved.

Anyone wishing to review the Court's Order without Opinion may click this LINK.

Postscript:  At a more recent court conference after this Order was issued, the Court agreed to decide the coverage issue after securing and agreement of counsel for the Court to decide that issue.  However, the entire case settled before the bench trial on the coverage issue took place.

Monday, January 6, 2020

Judge Nealon of Lackawanna County Addresses Proper Scope of Deposition Questions to a Medical Malpractice Defendant Doctor


Should a Defendant physician in a medical malpractice case be required to answer questions regarding the standard of care applicable to the treatment she or he provided?

That was the issue decided by Judge Terrence R. Nealon in the case of Howarth-Gadomski v. Henzes, No. 18-CV-2585 (C.P. Lacka. Co. Nov. 27, 2019 Nealon, J.).

According to the Opinion, a Defendant physician’s attorney refused to permit the physician to answer questions at a deposition seeking the doctor’s medical opinions, including those related to the applicable standard of care.

The Plaintiff filed a motion seeking to compel the doctor to answer those questions during a second deposition.

In opposition, the Defendant physician asserted that he cannot be compelled “to testify against himself,” and asserted that the Plaintiff must present their own expert testimony to address the standard of care.

The Plaintiff countered the argument that, under Pa. R.C.P. 4003.1(c), it is not a ground for objection to any discovery inquiry that the information sought involves an opinion.

The court ruled that no Pennsylvania statute, rule, or appellate authority entitles a medical malpractice Defendant/deponent to refuse to answer questions soliciting medical opinions, including those regarding the standard of care.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon noted that the explanatory comments to the Rules of Civil Procedure 4003.1, 4003.5, along with Pennsylvania case law, support the proposition that a party deponent may not object to deposition questions on the basis that they seek opinion testimony. Those rules also confirm that a Defendant-physician need not author a pre-trial expert report since any Plaintiff may discover that party’s opinions at a deposition.

As such, the court in this matter granted the Plaintiff’s Motion to Compel the Defendant physician to attend a second deposition. The court also ordered the Defendant physician to answer medical opinion and standard of care questions.

The court did note that, during the second deposition, defense counsel may direct the Defendant-physician not to answer a specific question only if that instruction is necessary to assert and protect a recognized privileged, to enforce and evidentiary limitation established by any earlier court rulings in this case, or to present a Motion for a Protective Order based on the grounds allowed under Pa. R.C.P. 4012(a).

In this decision, the court also noted that, if the Defendant-physician and his attorney chose to discuss the subject matter of this malpractice care during any recess of the deposition, the questioning attorney may discover whether such a conversation occurred, but may not further question the deponent concerning the contents of that discussion.

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

Pennsylvania Superior Court Addresses Standards For a Proper Voir Dire Proceeding


Is a judge required to be on the bench during jury selection?

In the case of Smith v. Cordero, 2019 Pa. Super. 340 (Pa. Super. Nov. 15, 2019) (Op. by McLaughlin, J.), the Superior Court ruled that a trial court erred in denying an estate’s Motion to Strike Two Jurors in a medical malpractice case where the jury selection was conducted by a court clerk and where the jurors had where the jurors had expressed the view that medical malpractice lawsuits had affected the cost and availability of medical services. In light of this ruling, the judgment in the underlying case was vacated.

Interestingly, the Superior Court noted that the previous decision in the case of Trigg v. Children’s Hospital of Pittsburgh, 187 A.3d 1013 (Pa. Super. 2018), appeal granted, 201 A.3d 145 (Pa. 2019) did not serve to impose a requirement that a judge be present during voir dire, but rather, only merely addressed the applicable appellate standard of review on a jury selection issue where a judge did not participate in the voir dire.

The court did find that the Trigg appellate standard of review applied in this matter. Under that standard of review, the court ruled as stated.

The Superior Court in this Smith case noted that, while the two (2) jurors at issue stated that they could still follow the judge’s instructions and be fair and impartial, the trial court judge was not present to hear the jurors’ tone of voice or to address their demeanor when they provided this information. As such, the Superior Court found that the trial court judge could not know whether the jurors could really be fair and impartial.

Given that the jurors’ answers expressed the “slightest ground of prejudice” required for their dismissal from the jury pool, the appellate court stated that the trial court should have granted the motions to strike the jurors for cause.

As such, while it appears that a trial court judge may not be required to be on the bench at the time of jury selection, the Pennsylvania Superior Court has again strongly suggested that it is the better practice for a judge to be present during voir dire to assess the demeanor and testimony of a potential juror when that juror is first questioned regarding his or her ability to be fair and impartial to with respect to the parties involved.

As noted in the Trigg citation above, this issue may be addressed by the Pennsylvania Supreme Court in the near future.

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Dec. 3, 2019).

Court Addresses Liability of Medical Facilities in Med Mal Context


In the case of Williams v. Vigder, No. 11050-CV-2019 (C.P. Beaver Co. Nov. 7, 2019 Ross, J.), the court addressed Preliminary Objections filed against claims of corporate negligence asserted against a medical facility, along with other issues in a medical malpractice matter.

In this case, Plaintiffs filed corporate negligence claims against two medical facilities, one of which appeared to be a hospital. The Defendants asserted that the doctrine of corporate negligence is not applicable to hospitals or like entities which play a role in the administration of total health for their patients.

The court denied this position put forth by the Defendant for Preliminary Objections purposes in light of the more recent pronouncement of the Pennsylvania Supreme Court in Scampone v. Highland Park Care Center, LLC, 57 A.3d 583 (Pa. 2012).

The court in this Williams case noted that the Pennsylvania Supreme Court in the Scampone case stated “that a Defendant is not categorically exempt from liability simply because appellate decisional law has not specifically addressed a theory of liability in a particular context.” Scampone at 599.

The court in Williams noted that “[t]he Scampone court specifically held that entities, such as nursing homes (and by inference hospitals and other like groups (health care providers)) should not be held to be “categorically immune from direct liability claims.” Id. at 600.

Given that doubt existed as to whether the demurrer to the corporate negligence claim should be sustained in this matter, the court overruled the Preliminary Objections filed by the Defendants in the Williams case.

In this case, this Williams case, court also allowed the Plaintiff’s claim for negligent infliction of emotional distress to proceed under facts alleged that the Plaintiffs allegedly experience great emotional shock after being advised of concern by the medical providers for their unborn child’s life after previously being advised that the mother’s labor was proceeding without incident. In overruling this Preliminary Objection, the Williams court cited to the case of Toney v. Chester County Hospital, 961 A.2d 192 (Pa. Super. 2008).

Lastly, the court also overruled the Defendant’s Preliminary Objections against the Plaintiff’s claim for punitive damages after finding that the Plaintiff’s allegations contained in their Complaint were sufficient to allow that claim to proceed.

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

I send thanks to Attorney Michael Foley of the Foley Law Firm in Scranton, Pennsylvania for bringing this case to my attention.

Friday, January 3, 2020

Choice of Ways Doctrine Helps Convince Court To Deny Summary Judgment in a Fall Down Case


In the case of Ruddick v. Calandra, No. 4572-CV-2018 (C.P. Monroe Co. Oct. 21, 2019 Williamson, J.), the court found that issues of fact prevented the entry of summary judgment in a fall down case.

According to the Opinion, as the Plaintiff was leaving the home of the Defendant, the Plaintiff turned to respond to a person who had called to her. The Plaintiff then stepped off a paved walkway and fell into a depression in the ground, allegedly sustaining injuries as a result.

The defense filed a Motion for Summary Judgment asserting that the Plaintiff failed to provide any evidence of a dangerous condition on the property or that the Defendants had acted negligently. The defense also asserted that the Plaintiff had elected to step off of the walkway and onto the grass, thereby implicating the “change of ways” rule.

The court found issues of fact that prevented the entry of judgment in favor of the defense. More specifically, the evidence revealed that the Defendants admitted that a soft depression formed in their yard when it rained. As such, there was an issue of whether or not weather conditions created a defect in the yard and whether that defect was the cause of the Plaintiff’s injuries. The court thought that these issues should be left for the jury.

Judge David J. Williamson
Monroe County

Judge Williamson additionally ruled that the contributory negligence issues related to the Plaintiff stepping off of the path was also a jury question.

In this regard, the defense raised the "Choice of Ways" Doctrine which holds that where a person has a choice of ways, one of which is perfectly safe, and one which is attendant with risk and dangers, and that person voluntarily chooses the dangerous way, that person is contributorily negligent and cannot recover.

There was a question as to whether the Plaintiff made a voluntary “choice of ways” in this case as both Defendants admitted that he walkway upon which the Plaintiff was located was very narrow.

The court denied the Defendants’ Motion for Summary Judgment and allowed the issues to proceed to a jury.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 10, 2019).


Should you need any assistance bringing your premises liability case to a close, please do not hesitate to contact me to set up a mediation through Cummins Mediation Services.  I can be reached at 570-319-5899 or at dancummins@CumminsLaw.net.  Thank you.



Another Federal Middle District Court Decision Denying a Post-Koken Motion to Sever and Stay a Bad Faith Claim


Intertwined

In the case of Ferguson v. USAA, No. 1:19-CV-401 (M.D. Pa. Dec. 5, 2019 Rambo, J.), the Federal Middle District Court determined that a bad faith claim could proceed independently of a breach of contact claim, even if the breach of contact claim failed. 

In its decision, the Ferguson court also denied the carrier’s Motion to Sever the bad faith claim and stay bad faith discovery. 

In so ruling, the court noted that, even if the claims of breach of contract and bad faith are distinct, they are “significantly intertwined from a practical perspective,” including the fact that both claims involved discovery on the injuries alleged on what efforts the carrier completed to investigate the claims asserted. 

This court found that attempting to separate the breach of bad faith claims and stay discovery on the bad faith claims “would potentially create a discovery mess, requiring truncated depositions, Interrogatories, and Request for Production of Documents, only to have them all re-started following the conclusion of the first leg.” The court found that this risk of judicial inefficiency warranted a denial of the Motion to Sever and Stay the Bad Faith Claim. 

The court additionally rejected the Defendant’s request to sever and stay the bad faith claim as a request that “at root, [asks] the court to manipulate this case’s procedural framework in a way that will make litigation convenient for insurers, which the court will not do.” 

The court acknowledged that legitimate attorney/client privilege and work product issues could arise if the claims were allowed to proceed in conjunction. The court noted that the party’s interests issues by way of a Motions for Protective Order filed by the defense and/or Motion to Compel filed by the Plaintiff. 

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

Thursday, January 2, 2020

Pennsylvania Supreme Court Denies Appeal From Superior Court's Affirmance of Judge Nealon's Entry of Summary Judgment in Slip and Fall Case


Tort Talkers may recall that , on June 21, 2018, there was a Tort Talk post regarding Judge Terrence R. Nealon’s entry of summary judgment in favor of the defendant in the slip and fall case of Wasnetsky v. Quinn’s Market, as well as another Tort Talk post on April 23, 2019, confirming that the Superior Court affirmed that decision.

As a further update, it is noted that, yesterday, January 2, 2020, the Pennsylvania Supreme Court denied plaintiff's petition for allowance of appeal.  Here is a LINK to the Supreme Court's Order in this regard.

This decision is notable for the fact that the trial court entered summary judgment after finding that the liability experts offered by the Plaintiff failed to offer concrete evidence as to what type of substance was allegedly on the floor of the supermarket that allegedly caused the Plaintiff to fall and suffer fatal head injuries.  The court held that, to allow the case to proceed, would have only served to allow for impermissible conjecture on the part of the jury on the causation issues.

To view the prior posts on this case, please go to Tort Talk at www.TortTalk.com and type the Plaintiff’s name into the Search Box in the upper right hand corner of the blog.



Res Ipsa Loquitur Doctrine Could Be Applied Regarding Foreign Object in Food



In the case of Watkins v. Gwaltney of Smithfield, Ltd., No. 3:2016-CV-02049 (M.D. Pa. Nov. 6, 2019 Mariani, J.), the court denied a motion for summary judgment filed by the defense in a case in which the Plaintiff alleges that he sustained fractured teeth and a cut tongue as a result of biting into a hot dog that contained a sharp metal blade.

Of note is that the court ruled that the doctrine of Res ipsa loquitur properly applies to a case involving the alleged presence of a metal knife blade in a hotdog.

The court noted that the Plaintiff testified that he did not do anything that could have introduced the blade into the hot dog. The court found that this adequately excluded other factors and allowed the doctrine Res ipsa loquitor to be applied.

Judge Robert D. Mariani
M.D. Pa.
Judge Mariani additionally ruled that the Defendant’s evidence that the Defendant did not use this type of blade in their production of hot dogs served to challenge the Plaintiff’s credibility and was an issue for the jury to decide, as opposed to be grounds for the entry of summary judgment.

On another unrelated issue in this case, the court ruled that, where the Plaintiff sought no discovery in this case, the Plaintiff could not seek discovery sanctions to bar Defendant’s witnesses for non-disclosure of information during the course of discovery.

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 Reed Smith law firm for bringing this case to my attention.

PTSD May Constitute a "Bodily Injury" For a Claim for First Party Benefits


In the case of Evans v. Travelers Ins. Co., 2019 Pa. Super. 353 (Pa. Super. Dec. 4, 2019 Panella, P.J., Stevens, P.J.E., and Kunselman, J.), held that an insured who suffers from post-traumatic stress disorder may be covered under first party medical benefits following a motor vehicle accident under an analysis that such an injury constitutes a “bodily injury” under the policy when the disorder is accompanied by physical manifestations.

The automobile insurance policy at issue allowed the Plaintiff to pursue first party medical benefits if she sustained a bodily injury as a result of a motor vehicle accident.
The medical expenses allowed under this provision included expense related to care for psychological services. Bodily injury was defined as an illness, disease or death.
The carrier attempted to argue that the Plaintiff's PTSD was not a "bodily injury." As noted, this argument was rejected, particularly where, as here, the were issues of fact as to whether the Plaintiff had physical symptoms as a result of her PTSD.
Anyone wishing to review a copy of this decision may click this LINK.

Wednesday, January 1, 2020

Claim for Recklessness Rejected in Monroe County Rear End Accident Case


In the case of Vella v. Henderson, No. 873-CV-2019 (C.P. Monroe Co. Oct. 30, 2019 Williamson, J.), the court granted a Defendant’s Preliminary Objections against the Plaintiff’s Complaint on several grounds in a motor vehicle accident case. The Plaintiff was allowed to file an Amended Complaint.

On one issue, the Defendant argued that the Plaintiffs failed to properly plead a claim for punitive damages based upon allegations of recklessness.

The court granted this Preliminary Objections after finding that the Complaint did not contain any allegations that the Defendant either purposefully caused or willfully ignored the likelihood of a substantial risk in this rear-end accident case.

According to the Opinion, the Plaintiff alleged that the Defendant operated a motor vehicle at a high rate of speed, failed to reduce his speed to avoid a collision, failed to maintain a proper lookout, failed to maintain a safe distance, and failed to use due care in operating his motor vehicle.

The court noted that these allegations constituted nothing more than regular negligence. As such, the court ordered that the recklessness language in the Complaint be stricken.

The court otherwise noted that the Plaintiff’s Complaint was also too vague to allow the defense to mount an opposition to the case where the Plaintiff failed to identify which body parts were injured in the accident. Although the court noted that the description of injuries did not have to be detailed, the nature of the injuries was found to be insufficiently described in this Complaint.

The court also sustained a Preliminary Objection to the Complaint given that the Plaintiff did not verify the Complaint. Rather, the Plaintiffs’ attorney had signed the verification instead.

The court found that the Plaintiff had had a lengthy time to file their Complaint and did not provide any explanation for the improper verification.

As stated, the court did allow the Plaintiff to file an Amended Complaint.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 10, 2019).