Coming Soon: Live Audio of United States Supreme Court Oral Arguments

In case you are interested, for the first time in history, on May 4, C-SPAN will have LIVE audio of the U.S. Supreme Courts oral argument.  C-SPAN's coverage will begin at 10am ET on C-SPAN, C-SPAN.org and on the free C-SPAN Radio App.

All Supreme Court oral arguments throughout the month of May will be LIVE on the C-SPAN Networks. Monday's oral argument is Patent and Trademark Office v. Booking.com B.V., Docket number 19-46.

https://www.c-span.org/video/?471182-1/supreme-court-oral-argument-patent-trademark-office-v-bookingcom

Judge Minora of Lackawanna County Addresses Proper Scope of Requests for Admissions

In the case of Hand v. DiMauro, No. 2015-CV-4470 (C.P. Lacka. Co. Dec. 12, 2019 Minora, J.), the court addressed the propriety of Requests for Admissions served by a Defendant upon a Plaintiff in a motor vehicle accident case.

At issue before the court in this case were Requests for Admissions served by the defense upon the Plaintiff which essentially sought admissions from the Plaintiff that she had multiple physical ailments that predated the subject accident. 

The Plaintiff objected to these requests, asserting that they improperly sought conclusions of law which were beyond the permissible scope of Requests for Admissions under the Pennsylvania Rules of Civil Procedure. 

In his Opinion, Judge Minora reviewed the law surrounding Requests for Admissions which are permitted under Pa. R.C.P. 4014. 

Judge Minora noted that, in the context of discovery, the relevancy of information sought is more widely considered by the courts when compared to the admissibility of evidence at trial. 

The court ruled that the Defendants’ request for discovery concerning the Plaintiff’s prior medical condition is “plainly relevant.”

Judge Minora went on to find that the subject Requests for Admissions were also within Rule 4014’s directive that a Request for Admissions seek the truth of any matters within the scope of discovery allowed by Rules 4003.1 through 4003.5. As such, the court overruled the Plaintiff’s objections to the Requests for Admissions at issue. 

However, rather than accepting the Defendant’s demand that the court consider the Plaintiffs’ invalid objections to be admissions to the Requests submitted. Rather, as a remedy, the court directed the Plaintiff to answer the Requests for Admissions within a certain period of time. 

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

Summary Judgment in a Limited Tort Case Upheld on Appeal

In non-precedential decision in the case of Francisco v. Ludwig, No. 689 MDA 2019 (Pa. Super. March 25, 2020 Lazarus, J., Stabile, J., and Dubow, J.) (Mem. Op. by Lazarus, J.) (non-precedential), the court affirmed the entry of summary judgment by the trial court in favor of a Defendant who was involved in a nine (9) vehicle chain reaction collision. 

The summary judgment motion is based, in part, on the fact that the Plaintiff had failed to timely respond to the moving Defendant’s New Matter and Request for Admissions such that all averments and requests contained therein were deemed admitted. The Plaintiff did eventually file a Reply to the New Matter and Responses to the Request for Admissions. 

After finding that the Plaintiffs’ Reply and Responses were untimely, the court deemed the pertinent factual issues to be admitted and, as a result, granted the summary judgment motion and dismissed the Plaintiff’s case. On appeal, this decision was affirmed by the Superior Court. 

The court noted that the Plaintiff’s procedural missteps in the case, included the waiver of certain issues on this appeal, could not be saved by an application of Pa. R.C.P. 126 which calls for the liberal construction of the Rules of Civil Procedure. 

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

I send thanks to Attorney Walter A. McClatchy, Jr., of the Philadelphia law firm of Walter A. McClatchy, Jr. & Associates, for bringing this case to my attention. 

ARTICLE: Criminally Charged Defendants Face Additional Hurdles in Companion Civil Lawsuits

Criminally Charged Defendants Face Additional Hurdles in Companion Civil Lawsuits

By Daniel E. Cummins | April 16, 2020

Pennsylvania Law Weekly

Daniel E. Cummins of Cummins Law.

Oftentimes, when a personal injury claim arises out of an underlying accident that involves criminal conduct by a tortfeasor defendant, there will be a criminal case proceeding against the defendant while the plaintiff is also simultaneously pursuing her or his civil lawsuit. This could arise, for example, where a motor vehicle accident emerges out of a DUI, where a student is injured in a hazing incident at a fraternity, or when a person is injured in an assault and battery.

In such cases, a defendant faced with criminal charges while the civil lawsuit is ongoing will usually file a motion with the civil court requesting that the civil case be stayed pending the resolution of the criminal case.

The concern for the defendant in such situations is that his exercise of the constitutionally protected right against self-incrimination under the Fifth Amendment to both the Pennsylvania and U.S. Constitutions may be in danger if the defendant is forced to answer interrogatories or undergo a deposition regarding the facts of the underlying matter.

Until recently, there was no set standard of review for civil trial court judges to rely upon in order to decide such motions to stay in the state courts of Pennsylvania.

A Foreshadowing of Appellate Precedent
In a prescient decision back in 2016 in the case of Liu v. Pi Delta PSI Fraternity, 302-CV-2015 (C.P. Monroe Co. 2016), Judge Arthur L. Zulick of the Monroe County Common Pleas Court reviewed the law surrounding a motion to stay a civil litigation matter pending the disposition of criminal charges asserted against the defendants in a companion case.

The Lui case arose out of fatal injuries sustained by the plaintiff’s decedent allegedly as a result of hazing incidents with a fraternity. During the pendency of this civil litigation matter, criminal charges were also proceeding against certain defendants.

After the plaintiffs served discovery on the defendants, certain defendants filed a motion seeking to stay the civil litigation matter pending the disposition of their criminal charges. One basis for the motion was that the defendants asserted that they would be forced to choose between waiving their constitutional privilege against self-incrimination and also would risk information being used against them in the subject criminal cases.

In his decision, Zulick reviewed the Fifth Amendment and Article 1, Section 9 of the Pennsylvania Constitution regarding the privilege against self-incrimination and its application in civil litigation matters.

Zulick found that the question of whether to stay all or part of a civil proceeding because of a pending criminal prosecution required a balancing of the various interests of the parties. Zulick noted that, while the Pennsylvania appellate courts had not yet adopted a specific balancing test to be applied in these situations, the federal courts had. In the Liu case, Zulick relied upon the factors noted in the case of In re Adelphia, (E.D. Pa. 2003). After applying these factors to the case before him, Zulick issued a split decision, granting the motion to stay in part but allowing other parts of discovery to proceed as well.

While Zulick was relying upon the six-factor test developed in the Pennsylvania federal courts, other Pennsylvania state trial court judges were apparently relying upon a variety of different standards of review to decide whether to grant a civil defendant a stay of a plaintiff’s personal injury lawsuit pending the results of a companion criminal court case against the defendant. The question of whether to grant a motion to stay in these circumstances was in need of appellate guidance with respect to a uniform way for state trial courts to address such motions.

An Appellate Case of First Impression

That appellate guidance arrived in March of this year, when the Pennsylvania Superior Court, in a case of first impression at the state court appellate level, adopted the same six-factor test in the case of Keesee v. Dougherty, 2020 Pa. Super. 64 (Pa. Super. March 16, 2020 Bowes, J., Olson, J., Stabile, J.) (Op. by Olson, J.). In so ruling, the Superior Court also cited to the federal case of In re Adelphia Communications, No. 02-1781 (E.D. Pa. 2003).

Under the precedent of the recent Keesee case, the six factors that are now to be addressed by a trial court in determining whether to stay a civil case pending the resolution of a companion criminal case include the following: the extent to which the issues in the civil and criminal cases overlap, the status of the criminal proceedings and whether any defendants have been indicted, the plaintiff’s interests in an expeditious civil proceeding weighed against the prejudice to the plaintiff caused by the delay, the burden on the defendants, the interests of the court, and the public interests at issue.

The personal injury lawsuit in the Keesee case was brought by a nonunion electrical contractor against an indicted union boss and other defendants after the plaintiff was allegedly physically assaulted after the plaintiff secured a contract on a townhome project and refused to join the union. The defendants’ motion to stay, which asserted there were companion ongoing criminal investigations, was denied by the trial court. According to the Superior Court in Keesee, the trial court correctly referred to the six-factor test developed in the case of In re Adelphia Communications but had only reviewed the first of the six factors in its analysis.

The Superior Court remanded the case back to the trial court level with instructions to the trial court to conduct another review of the defendants’ motion to stay under the entire six-factor test.

While indicted defendants are considered innocent until proven guilty, in the past, trial courts have generally declined to completely stay a companion civil case. In the interests of judicial economy and of allowing injured party plaintiffs to move their cases forward toward compensation for the injuries alleged, the trial courts have sometimes attempted to craft a remedy that allows the case to proceed while, at the same time offering some protections for the defendant’s right against self-incrimination.

For example, in a multidefendant case, a trial court may allow the entire case to proceed against all defendants, but grant the defendant who is facing criminal charges a reprieve against answering interrogatories about the underlying accident or undergoing a deposition.

However, in cases where there is only one defendant, experience tells that most trial courts will deny the stay motion and allow the civil plaintiff’s case to proceed forward. The rationale for supporting an injured party’s right to compensation for injuries over a tortfeasor’s constitutionally protected right against self-incrimination is often couched in the language of several of the factors ultimately adopted by the Keesee court. What is usually not said, but which is likely true and perhaps rightfully so, is that trial courts do not look kindly upon tortfeasors who are alleged to have engaged in criminal actions that resulted in injury to others.

When a civil defendant’s motion to stay a civil lawsuit is denied, that defendant must resort to asserting his or her Fifth Amendment right against self-incrimination in response to any interrogatories or deposition questions. Questions may arise on whether or when a defendant may assert that right in a civil litigation matter.

Not Everyone Can Assert the Fifth

In cases where a defendant’s motion to stay a civil case due to a pending criminal case also proceeding at the same time is denied, the defendant has the option of pleading the Fifth Amendment in response to interrogatories and deposition questions about the facts of the underlying accident. The problem for the defendant in this regard is that “the court in a civil case may draw any adverse inference which is reasonable from the assertion of the privilege” against self-incrimination, as in Crozer-Chester Medical Center v. May, 531 A.2d 2, 6 (Pa. Super. 1987), appeal dismissed, 550 A.2d 196 (Pa. 1988).

The state courts of Pennsylvania have ruled that, obviously, a claim against self-incrimination cannot be claimed by a defendant when he has already passed through the criminal cases and has pleaded guilty or has been convicted. See Rogers v. Thomas, (C.P. Lacka. Co. 2015 Nealon, J.) citing with “see” signal Commonwealth v. Melvin, 103 A.3d 1, 51 (Pa. Super. 2014).

A question arises as to what extent a defendant may properly assert the privilege against self-incrimination in a civil matter when criminal charges have not yet been filed.

In the Pennsylvania Supreme Court case of Commonwealth v. Saranchak, 866 A.2d 292 (Pa. 2005), the court set down the standard for trial courts to apply when determining whether a Fifth Amendment privilege has been properly invoked. The court noted that, when a witness pleads the Fifth, “‘it is always for the court to judge if the silence is justified, and an illusory claim should be rejected,’” quoting Commonwealth v. Carrera, 227 A.2d 627 (Pa. 1967).

The Supreme Court further noted that “for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answer demanded by the question presented to the witness cannot possibly have such a tendency.”

As such, it appears that under this standard the trial courts would err on the side of allowing the witness to assert such an important privilege. In fact, the Pennsylvania Supreme Court cautioned in the Carrera and Saranchak cases that “if an individual possesses reasonable cause to apprehend danger of prosecution, “it is not necessary that a real danger of prosecution exist to justify the exercise of the privilege against self-incrimination.”

In the event that a motion to stay a civil matter pending the results of a companion criminal case is denied, and the defendant goes on to assert the Fifth in response to any interrogatories or deposition questions, the plaintiff will be entitled to argue an adverse inference as well as receive a jury instruction in that regard. With that instruction, a jury will be permitted to infer that, had the defendant answered questions as to how the plaintiff’s injury occurred, the information provided by the defendant would have likely favored the plaintiff’s case.

As such, in the end, while criminal defendants may be considered to be innocent until proven guilty, they also run the substantial risk of being found negligent before being proven guilty.



Daniel E. Cummins is a partner in the Scranton law firm of Cummins Law where he focuses his practice in automobile accident litigation matters. Contact him at dancummins@cumminslaw.net.

Borrowed Servant Doctrine Applied to Dismiss Claim

In the case of Sardina-Garcia v. Brownsville Marine Prod., LLC, No, 1254 WDA 2019(Pa. Super. March 13, 2020, Bender, P.J.E., Bowes, J., Pellegrini, J.) (Op. by Pellegrini, J.), the Superior Court found that the trial court had properly ruled that the Plaintiff was a “borrowed servant” under the Longshore and Harbor Workers’ Compensation Act. As a result, the Plaintiff’s claim was dismissed.

The Plaintiff had received workers' compensation benefits but then sued his employer for an unsafe work space.

More specifically, the Superior Court agreed that the Defendant had control over the Plaintiff’s work, that the Plaintiff was performing only the Defendant’s work on a daily basis, that the employment was over a significant length of time with the Plaintiff acquiescing to the working conditions, and where the Defendant furnished the place of employment.

Anyone wishing to review a copy of this latest analysis of the Pennsylvania Superior Court on the borrowed servant doctrine may click this LINK.

Motion for Discovery Sanctions Denied -- A Party Can't Produce What Does Not Exist

In the case of Ebersole v. Schofield, No. 13-CV-2129 (C.P. Lacka. Co. April 13, 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a Motion for Discovery Sanctions in a commercial litigation case.

After being convinced by the Plaintiff that the Plaintiff had produced all responsive materials in his possession and had further offered executed authorizations for the Defendant to obtain other records, the court found that the defense had not established grounds for the granting of the Motion for Sanctions. 

The court noted that it was convinced that the documents identified and demanded by the Defendant simply do not exist. As such, the court held that a party cannot be sanctioned for failing to produce non-existent materials. 

In the end, the Motion for Discovery Sanctions was denied. 

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

Superior Rejects Trial Court's Allowance of Provisional 'Attorneys' Eyes Only" Review of Privileged Documents in Discovery

In the business dispute civil litigation case of CLL Academy Inc. v. Academy House Council et al., No. 446 EDA 2019 (Pa. Super. April 6, 2020 Bowes, J. Olson, J., Ford Elliott, P. J.E.)(Op. by Bowes, J.), the court issued a decision that, as precedent, serves to bar trial judges from allowing opposing counsel to view potentially privileged documents when holding hearings to determine if those materials should be released when sought in discovery.

The Superior Court's decision overruled a Philadelphia County trial judge's order that a defendant be required to provide a plaintiff with documents to review on a provisional "attorneys' eyes only" basis as the two sides hammered out a dispute over whether or not the material was shielded by work product protections.

The Superior Court ruled that such a designation would be incompatible with Pennsylvania civil procedure and law regarding the attorney-client privilege and work product protections.

The Superior Court found the 'attorneys' eyes only' procedure allowed by the trial court "to be wholly inconsistent with the in camera review sanctioned by our rules of civil procedure for evaluating claims of privilege."

Anyone wishing to review this decision may click this LINK.

Superior Court Provides Important Lessons Regarding Reservation of Rights Letters

In the case of Selective Way Ins. Co. v. MAK Services, No. 1289 EDA 2019 (Pa. Super. April 24, 2020) (Bowes, J., Shogan, J., Strassburger, J.) (Op. by Bowes, J.)(Dissenting Op. by Strassburger, J.), the Pennsylvania Superior Court issued an important decision pertaining to the validity of reservation of rights letters issued by liability insurance carriers.

According to the Opinion, the insured in this matter was a snow and ice removal contractor. The carrier at issue had issued a policy to this insured which had an exclusion for snow and ice removal coverage. 

In an underlying matter, the insured snow removal contractor was sued for a slip and fall event that allegedly occurred in an allegedly icy parking lot. 

According to the Opinion, even though the carrier had the exclusion for snow and ice removal activities contained in its policy, the carrier did not expressly reference that exclusion in its reservation rights letter that was initially issued to its insureds after the claim arose. 

Rather, the carrier defended the case for approximately eighteen (18) months before specifically raising the exclusion, for the first time, in a Declaratory Judgment Complaint.  In that Declaratory Judgment Complaint, the carrier requested a declaration from the court that it had no duty to defend or indemnify its insured under the case presented as applied to the policy language. 

The insured filed a counterclaim asking for a defense and coverage and also asserted claims for bad faith and fraud. Notably, the insured also included a request that the court declare that the carrier was "estopped" from ceasing its representation and indemnification of the insured in the underlying slip and fall lawsuit. 

At the trial court level, a ruling was issued that the language in the reservation of rights letter that was issued by the carrier was sufficient to preserve the carrier’s right to assert the snow and ice exclusion eighteen (18) months later even though that exclusion was not specifically referenced or quoted in the letter. The trial court had granted summary judgment in favor of the carrier on all counts in the declaratory judgment action. On appeal, the Superior Court reversed.

In so ruling, the Pennsylvania Superior Court reviewed certain general principles of law relative to the validity of reservation of rights letters. 

For example, the Pennsylvania Superior Court confirmed that “Pennsylvania law does not require an insurance company to list every potential defense to coverage in its reservation of rights letter.”  However, the Court did note that there was some recent case law that suggested that some level of specificity is necessary in this regard. 

The Superior Court also confirmed that an insurance company may “choose to send multiple reservation of rights letters during the evolution of case as a best practice.” 

The appellate court also confirmed that, even where a carrier “assumed the duty to defend, the [carrier] can simultaneously challenge whether the claim is covered under the insurance policy, even if the underlying case settles.”

The Superior Court also confirmed that “[a]n insurer’s defense of the insured, therefore, does not waive the insurer’s claims that a policy exclusion applies.” 

Yet, the appellate court also confirmed that a carrier is “required to provide timely and sufficient notice of any such reservation of rights to the insured....” 

Overall, the Court noted that a reservation of rights letter must “(1) be submitted in a timely fashion, and (2) ‘fairly inform the insured of the insured’s position’ in order to preserve an insured’s assertion of policy exclusions once a defense of the insured has been mounted.” 

The appellate court otherwise noted that a carrier “preserves defenses via a reservation of rights ‘[i]f its investigation is conducted with reasonable dispatch and its disclaimer is made with promptness upon the discovery of the facts....’” 

Stated otherwise, the Pennsylvania Superior Court noted that a carrier “cannot delay its decision and refrain from giving notice to the insured until such time has elapsed that [the insured’s] rights in relation to the accident are prejudiced or may become so…..” 

Notably, the Court additionally held that, where a carrier “fails to clearly communicate a reservation of rights to an insured, prejudice may fairly be presumed.” 

The Pennsylvania Superior Court went on to rule that a carrier will not be estopped from setting up the defense that the insured’s loss was not covered by the insurance policy, even if the carrier participates in the defense of the action against the insured, “if the [carrier] gives timely notice to the insured that it has not waived the benefit of its defense under the policy.” 

The Pennsylvania Superior Court cautioned, however, that, “to be effective, [a reservation of rights] must be communicated to the insured.” 

That reservation of rights must also “fairly inform the insured’s position and must be timely, although delay in given notice must be excused where it is traceable to the [carrier’s] lack of actual or constructive knowledge of the available defense.” 

The Superior Court also cited to Supreme Court precedent for the proposition that “[w]hen an insurance company or its representatives is notified of loss occurring under an indemnity policy, it becomes its duty immediately to investigate all of the facts in connection with the supposed loss as well as any possible defense on the policy. It cannot play fast and loose, taking a chance in the hope of winning, and, if the results are adverse, take advantage of a defect in the policy. The insured loses substantial rights when he surrenders, as he must, to the insurance carrier the conduct of the case.” 

The Pennsylvania Superior Court also confirmed that “insurance carriers may be estopped from asserting a policy exclusion where it has ‘lulled the insured into a sense of security to his detriment.’”  

In this case, it was noted that the carrier has issued the reservation of rights letter within three (3) weeks of the lawsuit filed against the insured, and before any defense was assigned. As such, the Superior Court found that the reservation of rights letter was timely in this case. 

However, the Superior Court found that the content of the reservation of rights letter, which did not reference the particular exclusion at issue, did not fairly inform the insured of the carrier’s position. The Superior Court faulted the carrier for using “boilerplate language” in its reservation of rights letter without reference to the particular exclusion the carrier wished to rely upon. 

The Superior Court reiterated that, while carriers do not have the list every potential defense in a reservation of rights letter, the trend of recent case law suggested that some level of specificity is necessary and, therefore, required. 

The Pennsylvania Superior Court was careful to note that “[t]he lack of specificity in [the carrier’s] reserve of rights letter is not determinative, in and of itself.   The Court emphasized that it was "not announcing some new paradigm by which Pennsylvania insurance companies must prophylactically raise all potential coverage defenses in order to preserve them."

Here, the carrier had the policy language in hand along with actual knowledge of the nature of the claim, but still waited eighteen (18) months before specifically raising the exclusion. This, the Pennsylvania Superior Court found, was insufficient. Because the insured was allegedly presumably prejudiced as a result, the court found that the carrier was estopped from asserting the exclusion.  As stated, the trial court's decision in favor of the carrier was reversed and the case was remanded for further proceedings.

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

The Dissenting Opinion by Judge Strassburger can be viewed HERE.  Judge Strassburger was of the opinion that the prejudice in this context should not be presumed, but that the insured should be required to prove prejudice relative to the reservation of rights letter.

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

Artful Pleading Allowed To Trigger Liability Coverage

In Erie Insurance Exchange v. Moore, No. 20 WAP 2018 (Pa. April 22, 2020)(Op. by Dougherty, J.)(Dissenting Op. by Mundy, J.), the Court allowed artful pleading of negligence by a Plaintiff in a shooting case to trigger a carrier’s duty to defend the matter.

In this case, the liability carrier sought a declaration that it did not have to defend or indemnify the estate of Harold McCutcheon Jr., who was the alleged shooter in an underlying tragic string of events involving a murder-suicide and injuries to a third person.

With regards to the previous decisions by the lower courts in this matter, a three-judge Superior Court panel had reversed a Washington County trial judge’s decision and had unanimously ruled that, because the injured third person alleged in the Complaint filed in the underlying matter that the shooting was "accidental," the events fit the definition of “occurrence” in the homeowner’s policy that the alleged shooter had with the liability carrier. 

The language in the policy at issue defined an 'occurrence' as “an accident including continuous or repeated exposure to the same general harmful conditions.”

According to the Opinion, the injured Plaintiff alleged in his Complaint that the alleged shooter had left a note outlining his intention to kill his ex-wife and then commit suicide. 

The Plaintiff further alleged that, after the alleged shooter allegedly shot his ex-wife at her house, there was a knock at the front door. The Plaintiff was that person who was knocking on the door.

The Opinion also notes that the Plaintiff had been dating the ex-wife in the time leading up to the incident.

The ex-husband, who was the alleged shooter, pulled the Plaintiff into the house where a fight ensued during which the Plaintiff was shot in the face by the ex-husband. The alleged shooter then shot himself.

In his lawsuit against the shooter, the Plaintiff alleged that the alleged shooter had "negligently, carelessly, and recklessly caused the weapon to be fired." 

Justice Kevin Dougherty, writing for the majority, compared the allegations in the Plaintiff’s Complaint against the policy language and rejected Erie’s contention that McCutcheon’s conduct was deliberate and therefore not covered by the policy. As such, the Court’s ruling resulted in a finding that the carrier had a duty to defend the claims against the alleged shooter and, therefore, possibly a duty to indemnify the Plaintiff for his injuries from this shooting event.

Justice Dougherty wrote, “Contrary to Erie’s view, this surprise encounter with [the Plaintiff] was not part of the insured’s other intentional conduct for purposes of insurance coverage, and in fact, [the Plaintiff] does not seek damages for a fistfight or shoving match,” 

Justice Dougherty also wrote that “[The Plaintiff’s] lawsuit seeks damages for being shot by the insured. Had the policy’s exclusion expressly stated coverage would not apply to incidents involving firearms, or during the commission of a crime, then perhaps there would be no duty to defend the underlying claims by [the Plaintiff]. But the policy does not say this. Instead, it excludes from coverage bodily injury ‘expected or intended’ by the insured, and to the extent this language is ambiguous in the presently alleged factual context, it must be construed in favor of coverage.”

Dougherty was joined by Justices Max Baer, Christine Donohue and David Wecht.

The three Justices on the Supreme Court that could not agree with the Majority’s decision included Chief Justice Thomas Saylor, Justice Debra Todd, and Justice Sallie Updyke Mundy.

In her Dissenting Opinion, Justice Mundy, joined by Chief Justice Saylor and Justice Todd, contended that “the discharge of a weapon during a physical altercation initiated by the insured, while the insured is holding a firearm, is the type of harm specifically excluded under the policy.”

“In my view, artful pleadings cannot form the basis of imposing a duty to defend,” Mundy said. “As the discharge of the firearm under the circumstances alleged in the [Plaintiff’s] complaint does not carry with it the degree of fortuity or unexpectedness necessary to constitute an accidental occurrence, I cannot agree Erie is obligated to afford coverage under the terms of the insurance policies.”

Anyone wishing to review the Majority Opinion in this case may click this LINK.

The Dissenting Opinion can be viewed HERE.

Source: Article - “Deeply Split High Court Says Insurer Must Cover Accidental Shooting During Murder-Suicide” by Zack Needles of the Pennsylvania Law Weekly (April 23, 2020)

Pennsylvania Supreme Court Finds That Issue of Whether It Is Proper For a Trial Court Judge To Leave The Bench During Jury Selection Was Not Preserved

Tort Talkers may recall that we have been waiting for the Pennsylvania Supreme Court to voice its opinion on the propriety of the practice of some trial court judges choosing to leave the bench during jury selection and allowing the litigating attorneys to conduct voir dire on their own.

The Pennsylvania Supreme Court was positioned to answer this question in its decision in the case of Trigg v. Children's Hospital of Pittsburgh of UPMC, No. 3 WAP 2019 (Pa. April 22, 2019) (Op. by Todd, J.)(Donohue, J., Concurring)(Wecht, J., Concurring).  However, in its decision issued yesterday, the Court found that the issue had not been preserved for appeal and that the Superior Court had, therefore, improperly addressed the merits of the question presented.  (The Tort Talk Blog post on the Superior Court's decision, along with other posts pertaining to this Trigg decision, can be viewed HERE).

Note however that, in their Concurring Opinions, Justice Donohue and Justice Wecht expressed their misgivings with regards to any practice whereby a trial court judge would leave the bench during the jury selection proceedings.

Justice Wecht also provides some cogent advice in his Concurring Opinion with regards to properly stating objections at appropriate times, creating and preserving objections on the record before trial and at trial, and even the merits of making objections that an attorney knows will be overruled if only to preserve the issue on appeal.

While most of the Majority Opinion focuses on the law of waiver of objections and not so much on the merits of the question of whether it is proper for a trial court judge to leave the bench during voir dire, both Concurring Opinions are worth reading relative to the jury selection question.

To read the Majority Opinion, please click HERE.

To read Justice Donohue's Concurring Opinion, please click HERE.

To read Justice Wecht's Concurring Opinion, please click HERE.


Commentary:  Now that it has been brought to the Supreme Court's decision that there is a practice in some trial courts around the Commonwealth of Pennsylvania where trial judges leave the bench during jury selection, and now that some of the Justices have vocalized their disdain for the practice, it remains to be seen if the Court will now effectuate a change in the Pennsylvania Rules of Civil Procedure to mandate that trial court judges remain on the bench for the entirety of voir dire.

If such changes are to be made, perhaps the Court would also consider mandating, through an amendment to the Rules, that a Court Reporter also be required to transcribe the entirety of voir dire.  Oftentimes, there is pressure on litigants from the trial court to agree to forgo the need for a court reporter to record the voir dire.

There is no question that it is a better practice to have a court reporter take down what is happening in voir dire as it happens as opposed to having no court reporter present and then later summoning a court reporter and attempting to rehash what happened with respect to an objection previously raised during voir dire.

Opening of Cummins Law Office Highlighted in Local Newspaper

Here is a LINK to an article published in today's Abington Suburban (from the Clarks Summit, PA area) touting the recent opening of the Cummins Law office.  I send thanks to the editor, Elizabeth Baumeister, for running this story.

Another Court Rules: No Coverage, No Bad Faith

In the case of NVR, Inc. v. Mutual Benefit Ins. Co., No. 2:19-cv-26-NR (W.D. Pa. March 13, 2020 Ranjan, J.), the court issued another decision in which it was held that, if there is no coverage under a policy, there can be no bad faith as well.

The insured, NVR, was a company that developed and built homes.  When a number of landslides in western Pennsylvania damaged a number of homes, NVR was sued by the homeowners.  NVR filed this lawsuit against the carrier seeking coverage and a defense under insurance policies issued to an engineering company and under which NVR was listed as an additional insured.  However, the coverage under the policy to additional insureds was found to be limited.

In this matter, the court determined that there was no coverage due to NVR as an additional insured and, as such, ruled against NVR on its breach of contract and declaratory judgment claims. The court then ruled that the bad faith claims also failed as a result.

As to the additional insured’s statutory bad faith claim, the court more specifically noted that, where there is no duty to defend, there can be no statutory bad faith claim against the carrier.

NVR attempted to avoid a total dismissal by asserting that it still had a valid common law bad faith claim to pursue.

However, the court noted that the only common law bad faith cause of action available in Pennsylvania arises out of claims pertaining to the insurance contract itself.  The court noted that where, as here, a contract claim is found to be invalid, then the common law bad faith claim must also be dismissed as well.

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

I send thanks to Attorney Lee Applebaum, the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention. Attorney Applebaum is with the Philadelphia law firm of Fineman, Krekstein & Harris.

Summary Judgment Granted to UIM Carrier in Bad Faith Claim

In the case of Bernstein v. Geico Cas. Co., No. 19-1899 (E.D. Pa. March 19, 2020 Robreno, J.), the court granted a carrier’s summary judgment in an UIM bad faith claim that involved allegations of a delayed investigation and a delayed settlement payment.

According to the Opinion, it was the Plaintiff’s argument that the carrier acted unreasonably in taking fifteen (15) months to make a settlement offer.

The court noted that, although bad faith can be proven through unreasonable delays in paying a claim, “‘a long period of time between demand and settlement does not, on its own, necessarily constitute bad faith.’”

The court noted that, if the carrier’s delay is tied to its need for further investigation, there may not be a valid bad faith claim based upon the delay.

The court also noted that any reasonable basis to deny coverage defeats a bad faith claim and that consultation with counsel can establish a reasonable basis for the carrier’s action.

Judge Robreno also reaffirmed the general rule of law that simple negligence or poor judgment on the part of the carrier also does not make out a bad faith case.

The court additionally noted that “[a]n insurer who investigates legitimate questions of insurance coverage is not acting in bad faith, and no insurer is required ‘to submerge its own interest in order that the insured’s interests may be made paramount.’”

In granting the carrier’s Motion for Summary Judgment, the court also emphasized that, during its investigation, the carrier had “repeatedly asked… for additional medical documentation, repeatedly communicated with Plaintiffs’ Counsel, and provided updates on the progress of the investigation.” 

As such, the court found that, even viewing the case in the required light most favorable to the Plaintiffs, “no reasonable jury could find by clear and convincing evidence that Defendant lacked any reasonable basis in its investigation.”  As such, the carrier's summary judgment motion was granted.

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 be sure to check out Attorney Applebaum’s excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog for continuing updates in this area of law.

Excellent Analysis on New Trend of Declaratory Judgment Actions Regarding Business Interruption Coverage Relative to Covid-19 Shutdowns

Here is a LINK to a blog post written by Attorney Lee Applebaum of the Philadelphia law office of Fineman, Krekstein & Harris for his excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog providing an analysis of the latest trend of declaratory judgment actions by or against insurance carriers on the issue of whether business interruption coverage applies to Covid-19 shutdowns of small businesses.

I send thanks to Attorney Applebaum for this excellent analysis.

It is noted that the attorneys at the insurance defense firm of Cummins Law are available to defend carriers in such claims in the northeastern Pennsylvania region.  Contact Dan Cummins at dancummins@comcast.net or at 570-319-5899.

Summary Judgment Denied in Slip and Fall Case Where Questions Abound Regarding Preservation of Video Evidence From Store

In the slip and fall case of Charoff v. Marmaxx Operating, No. 18-4712  (E.D.Pa. April 7, 2020 Jones, J.), the court ruled that the Plaintiff was entitled to an adverse inference during motion for summary judgment proceedings due to TJMaxx's inability to produce video surveillance involved in the matter.  The court also denied the Defendant store's Motion for Summary Judgment.

According to the Opinion, the Plaintiff had previously contacted the store's carrier and requested that the video evidence be preserved.  The evidence before the court was that the standard practice was that the carrier would then contact the store to request that any videos be preserved.

The Defendant argued that there was no video surveillance as the location where the Plaintiff allegedly fell was allegedly in a "blind spot."  

Given the issues of fact raised, the court denied the motion for summary judgment.

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

Source: Article: "Judge Comes Down on TJMaxx for Allegedly Destroying Evidence in Injury Case" in the Pennsylvania Law Weekly by P.J. D'Annunzio (April 8, 2020).

Quoted in Pennsylvania Law Weekly Regarding Efforts By Pennsylvania Attorneys To Push Cases Forward

Here is a LINK to an article by Max Mitchell that appeared in yesterday's online edition of the Pennsylvania Law Weekly entitled "'A New Normal' Frustrations, Solutions, Workarounds Emerge as Pa. Attorneys Consider Long-Term Shutdowns" in which Max Mitchell reached out for quotes from attorneys around the Commonwealth on efforts to keep civil litigation matters moving forward.  I send thanks to Max Mitchell for reaching out.

Judge Minora of Lackawanna County Addresses Several Notable Discovery Issues Including Permissible Scope of Vocational Assessment

In the case of Barbarevech v. Tomlinson, No. 18-CV-4821 (C.P. Lacka. Co. Nov. 14, 2019 Minora, J.), Senior Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed several notable discovery issues arising out of a motor vehicle accident matter.

On one issue, the Plaintiff sought sanctions against the Defendant due to the Defendant’s failure to provide full and complete discovery responses following a previous Motion to Compel Order issued by the court.

According to the Opinion, the defense counsel noted that he had informally responded to the discovery requests at issue following the entry of that Order and asserted that the Plaintiff’s Motion for Sanctions filed on the basis that formal supplemental responses were not provided was, in essence, exalting form over substance.

While the court appreciated defense counsel’s position, the court nevertheless determined that the Defendant should have filed formal responses to the written discovery requests at issue after an Order to compel had been entered by the Court. However, Judge Minora chose not to impose sanctions as to the court found the failure to comply formally with the directive of the Court under the circumstances presented in this case which confirmed that the lack of compliance by defense counsel was unintentional in nature and not designed to be an affront to the Court. The defense was directed to provide formal supplemental discovery responses.

In this decision, the court also addressed the proper parameters of a vocational evaluation of the Plaintiff sought by the Defendants.

According to the Opinion, the Plaintiffs objected to the proposed length of the evaluation, which was to include an interview followed by standardize testing, all of which would take approximately 4-5 hours in duration.

Plaintiff’s counsel also were seeking an Order compelling the evaluation to take place in either Lackawanna County or Luzerne County.

The Plaintiffs also sought to limit the type of questioning by the vocational expert and to prevent the expert from performing any type of psychological testing.

The Plaintiff also requested the right to have counsel or representative present during the entirety of the examination.

Judge Minora relied upon his own previous decision in the case of Dellavalle v. USAA, 2017-CV-4688 (C.P. Lacka. Co. 2019 Minora, J.), in which the court laid out a framework for a proper neuropsychological independent medical examination. The court found that the evaluation requested by the vocational expert in this matter was sufficiently analogous to the neuropsychological IME requested in the Dellavalle case so as to allow the court to rely upon that prior decision for guidance.

As he has ruled in previous matters,with respect to the location of the IME, Judge Minora noted that traveling any distance, especially where the physical condition of the commuter may be impaired, was an annoyance and possibly a burden. In this matter, the court found that the burden associated with traveling from northeastern Pennsylvania to Valley Forge, Pennsylvania for the vocational evaluation was  “unreasonable” so as to warrant the entry of a Protective Order under Pa. R.C.P. 4012.

The court ruled that the Defendants having chosen the vocational expert from out of the area as an expert should bear the reasonable expenses related thereto. The court also noted that the vocational expert could travel to Luzerne or Lackawanna County and find a place to complete the examination of the Plaintiff. The Court ordered the cooperation of the parties in this regard and ordered the defense to reimburse the Plaintiff for any reasonable costs that may be incurred by the Plaintiff as a result.

With regard to the conduct and duration of the IME, Judge Minora noted that he would “refrain from micromanaging at this stage of the proceedings [the vocational expert’s] customary evaluation processes.” See Op. at 6.

Judge Minora declined to limit in any significant manner the duration of the subject evaluation as he found nothing inherently unreasonable in the anticipated length of the proposed vocational assessment. However, the court was hesitant to allow the length of time to be open ended and, as such, ordered that the evaluation could not exceed 4 ½ hours in duration.

With regard to the presence of the Plaintiff’s attorney or representative during the vocational review, the court rejected the Plaintiff’s request to have a representative present during the entirety of the evaluation. Rather, the court ruled that under Rule 4010(a)(4)(i) allows the representative to be present only during the interview portion of the evaluation, but not during any part of the testing portion.

Lastly, the court denied the Plaintiff’s Motion to Designate the Defense Vocational Expert as a Professional Witness. The Plaintiff pursued this motion under the case of Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006).

Judge Minora found the Cooper case to be distinguishable and, therefore, dismissed the Plaintiff’s Motion as premature and as an improper attempt to seek from the court a declaratory judgment on the expert’s designation as a professional witness at this stage of the litigation. This decision was entered without prejudice to the Plaintiff’s right to properly present this issue to the trial judge via a Motion in Limine.

The court in this case distinguished Cooper on the grounds that, in the Cooper, case the Plaintiff had first served the written discovery seeking bias information from the expert after which the Defendants objected and the case became before that court by way of a Motion for a Protective Order. In this case, the Plaintiffs had not yet served any discovery requests upon the vocational expert or with respect to the vocational expert and was instead looking for the court to “green light their ability to do so.”

Judge Minora noted that, while such an inquiry by the Plaintiff of the vocational expert may, in the end, be proper, Judge Minora felt that it was not the role of the court to give the Plaintiffs permission to do so at that stage of the litigation.

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


Commentary:  Judge Minora's decision in this Barbarevich case highlights the difficulty presented by the Cooper v. Schoffstall case in that that case allows for certain additional discovery to be conducted with respect to the potential financial bias of an expert if it is established that the expert is a "professional witness" but the Court in Cooper did not provide any test or standards by which to make that determination.

Supermarket's Motion for Summary Judgment Denied in Trip and Fall Case

In the case of Jenkins v. Krenitsky’s Supermarket Corp., No. 17-CV-1489 (C.P. Lacka. Co. April 15, 2020 Nealon, J.), the court denied a supermarket’s Motion for Summary Judgment in a trip and fall case. 

According to the Opinion, a supermarket customer filed this premises liability lawsuit against the supermarket after she fell upon stepping into a parking lot pothole that was located close to the front entrance and sidewalk to the store. 

The Court emphasized that, during her deposition, the Plaintiff described the pothole as “a big hole” that was “pretty wide” and “about two feet long” and deep enough that she “could fee [her] ankles stuck in the hole.” 

Based upon this testimony, the court stated that there were issues of fact with respect to the Defendant’s claim that the pothole amounted to a trivial defect. 

The court also denied the store’s Motion for Summary Judgment based upon issues of fact as to whether the store acted reasonably to protect its customers where there was evidence that revealed that the supermarket did not have any policies governing periodic inspections of his premises, had not charged any of its employees with the duty of inspecting the premises for any dangerous condition, and where the store could not state when its parking lot had last been inspection prior to the fall in question. 

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

CONTACT CUMMINS MEDIATION SERVICES TO SCHEDULE MEDIATION FOR YOUR PREMISES LIABILITY CASE

Have a trip or slip and fall case that is ready to be mediated?

Please consider bringing your case to a close with the assistance of Cummins Mediation Services.

Remote Mediations being conducted at no extra cost to the participants.

Fee Schedule and Resume available upon request.  Contact Dan Cummins at dancummins@CumminsLaw.net or call 570-319-5899.

Thank you.

CUMMINS LAW DEFENDS PREMISES LIABILITY MATTERS ALL ACROSS NORTHEASTERN PENNSYLVANIA

The Attorneys at CUMMINS LAW defend Premises Liability matters in all Counties all across Northeastern Pennsylvania.

We pledge to deliver our legal services in the most prompt, efficient and responsive manner possible.

Attorney Cummins is the only insurance defense attorney in all of northeastern Pennsylvania to be selected to appear in The Best Lawyers in America Directory under the category of Personal Injury Defense.   He is also AV-Rated by the Martindale-Hubbell Directory and is a past recipient of the Pennsylvania Defense Institute's "Distinguished Defense Counsel of the Year Award."

Call or write to Dan Cummins today to discuss the defense of your claim:

Phone: 570-319-5899

Email: dancummins@CumminsLaw.net

Notes Written by Defendant in Med Mal Case in Anticipation for Deposition Not Protected From Disclosure

In the case of Ford-Bey v. Professional Anesthesia Services of M.A., LLC, 2020 Pa. Super. 42 (Pa. Super. Feb. 20, 2020 Bowes, J., Olson, J., Ford Elliot, P.J.E.) (Op. by Bowes, J.), the court granted a Plaintiff’s Motion to Compel the disclosure of notes written by a medical personnel defendant on a relevant medical chart in a medical malpractice matter.

The court noted that annotations made on a relevant medical chart by the Defendant at the suggestion of his attorney did not amount to any privileged or confidential information. 

The court reiterated the rule of law that the party asserting the attorney-client privilege bears the burden of establishing that the privilege attaches.

The court found that the privilege did not attach here where the notes by the client were not made for the defense attorney’s use and were not even shown to the attorney. As such, the court found that these notes were not communications between a client and that person‘s attorney that could be deemed to be privileged. 

The court also rejected any notion that the notes made by the Defendant were protected by the attorney work product doctrine.  The court ruled in this fashion given that the only mental impressions contained in the notes were those of the Defendant himself.   The court ruled that mental impressions of a client are not automatically protected from disclosure under the attorney work product doctrine. 

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

Court Addresses Evidentiary Privileges Under MCARE Act In Med Mal Case

In the case of DelGuercio v. Tio, No. 19-CV-3604 (C.P. Lacka. Co. March 26, 2020 Nealon, J.), the court issued a Rule 1925(a) Order in support of its decision directing a Defendant hospital in this medical malpractice action to submit two (2) event reports and a patient safety report for an in camera review in order to facilitate a determination as to whether those materials are protected from discovery by the Patient Safety and Quality Improvement Act of 2005 and the Peer Review Protection Act of the Medical Care Availability and Reduction of Error Act (MCARE). 

The court noted that the hospital, as the party asserting evidentiary privileges under these Acts, had the burden of establishing that the discovery of the reports at issue was prohibited by those statutes. The court noted that the limited submissions by the Defendant hospital raised a series of unanswered questions regarding the applicability of the claimed privileges. 

As such, rather than grant the Plaintiffs’ Motion to Compel, the court directed the hospital to submit the disputed reports for an in camera review in an effort to resolve the unsettled issues. 

Rather than complying with this directive, the Defendant hospital filed an appeal and the court issued this Rule 1925 Opinion in support of its finding that it was not an abuse of discretion for the trial court to have ordered the in camera review under the circumstances.

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

Motion To Have Household Exclusion Issue Certified For Appeal in Federal Court Denied

Tort Talkers may recall the case of Stockdale v. Allstate, No. 19-845 (E.D. Pa. April 8, 2020 Beetlestone, J.), in which an Eastern Federal District Court Judge upheld and applied the Gallagher v. GEICO decision by the Pennyslvania Supreme Court pertaining to the Household Exclusion.  Most courts, but not all, consider the Gallagher v. GEICO decision as having eradicated the Household Exclusion in all factual scenarios.

As an update to the Stockdale case it is noted that Judge Beetlestone issued another decision in that case, this one denying the carrier's Motion under F.R.C.P. 54(b) to have the Gallagher v. GEICO Household Exclusion issue certified to go up to the Third Circuit for appellate review.

The denial allows the effort by the plaintiff to proceed on a class action on behalf of insureds who had their claims previously denied under the Household Exclusion to go forward.

The decision is also notable for the Courts analysis under F.R.C.P. 54 in terms of attempting to have issues certified to be a final judgment worthy of an interlocutory appeal in the Federal Court system.

Anyone wishing to review the Court's Opinion may click this LINK.  The companion Order denying the Motion can be viewed HERE.

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

Is It An Arbitration Award or Not?

In the case of Martinez v. Nationwide Ins. Co., No. 18-2972 (E.D. Pa. Feb. 18, 2020 Perkin, U.S.M.J.), the court denied a carrier’s Motion for Summary Judgment in a UIM claim where there were issues of fact over whether the ADR proceedings resulted in a settlement recommendation or a binding arbitration award for less than the tortfeasor’s limits.

According to the Opinion, the Plaintiff proceeded in the third party auto accident matter to an alternative dispute resolution proceeding which resulted in an arbitrator entering a finding in favor of the Plaintiff for $22,500.00 after which the Plaintiff’s lawsuit was subsequently marked as settled, discontinued and ended.

Thereafter, the Plaintiff’s attorney responded to the carrier’s inquiries about the status of the arbitration of the third party matter. After receiving the arbitrator’s award, the Plaintiff’s counsel notified the carrier of the “settlement” via a Dailey-Sands letter with a request that the UIM carrier either approve the “settlement” or tender the amount of the “settlement” to preserve its subrogation rights.

The carrier filed a Motion for Summary Judgment in this matter asserting that the Plaintiff had received a binding arbitration award for less than the third party tortfeasor’s limits such that there was no valid UIM claim.

In this matter, the Federal Magistrate Judge found that there were issues to be resolved that prevented the entry of summary judgment.

The court agreed with the Plaintiff that the ADR proceedings merely resulted in a non-binding settlement recommendation from an arbitrator. The court noted that the arbitrator’s document used terms such as “recommendation” and “recommend” rather than language indicating that the arbitration award document was meant to be a binding arbitration award on the Plaintiff. 

The court additionally noted that, if the document was determined to be a settlement recommendation, then there would be no final judgment that would preclude the Plaintiff from litigating her damages under the doctrine of collateral estoppel.

Anyone wishing to review a copy of this decision may click this LINK.  The Order related to this Opinion can be found HERE.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 3, 2020).

Split of Authority in Pennsylvania Federal District Courts on General Jurisdiction Issue

It appears that a dispute has arisen between the Federal District Courts of Pennsylvania as to whether or not Pennsylvania's long arm statute imposing general jurisdiction upon any foreign corporation registering to do business in Pennsylvania is constitutional.

In the case of Kraus v. Alcatel-Lucent, No. 18-2119 (E.D. Pa. Feb. 27, 2020 Savage, J.), the court ruled that Pennsylvania’s long-arm statute, which allows for general jurisdiction on any foreign corporation registering to do business in Pennsylvania, is constitutional. 

On the basis of this ruling, the court in Kraus denied a Defendant’s Motion to Dismiss for lack of personal jurisdiction.

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

In contrast, in the case of Reynolds v. Turning Point Holding Co., No. 2:19-CV-01935-JDW (E.D. Pa. Feb. 26, 2020 Wolson, J.), the court granted a Motion to Dismiss for lack of personal jurisdiction after finding, in part, that Pennsylvania’s statutory scheme requiring foreign corporations to consent to general personal jurisdiction in Pennsylvania by virtue of registering to do business in Pennsylvania violates the Due Process Clause of the United States Constitution. 

According to this Opinion, the Defendant franchiser involved in this matter did not have any significant contacts with Pennsylvania and the store where the Plaintiff was alleged injured was a separately maintained corporation.

The court in Reynolds ruled that the Defendant’s registration as a foreign corporation to do business in Pennsylvania was insufficient to subject it to general personal jurisdiction. 

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

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

Verdict Overturned As Excessive

The non-precedential decision of Kimble v. Laser Spine Institute, No. 617 EDA 2019 (Pa. Super. April 9, 2020 Nichols, J., Murray, J., and Colins, J.) (Mem. Op. by Murray, J.)(Nichols, J., Dissenting), arose out of a case in which a $10 million dollar verdict was entered in a medical malpractice matter.  The Pennsylvania Superior Court remanded the case for a new trial on the issue of damages based upon a finding that the verdict may have been excessive under the case presented.

The appellate court faulted the trial court for allegedly not fully examining the evidence in the record against the applicable shocks the consciousness standard of review.

Significantly, the appellate court also appeared to overturn the verdict below, in part, based upon a finding that the reversal was appropriate after comparing the verdict in this case to verdicts in other cases.

The decision is also noteworthy in its reaffirmation that trial court judges and appellate court judges will look for and rely upon waivers of appellate issues in order to preserve the validity trial court rulings during the course of a trial.

For example, this case provides the valuable lesson that counsel should not only submit proposed points for charge but should also seek out concrete rulings from the trial court on whether or not the trial court judge is granting or denying such proposed points for charge.

In this case, propose points for charges were submitted but the trial court generally noted that it only used standard suggested jury instructions.  No ruling was requested or made on certain proposed points for charge that were submitted for the court's review.  On appeal, any issues raised with respect to these proposed points for charge were found to have been waived as there was no concrete trial court decision granting or denying these proposed points.

In another example of the court looking for and finding a waiver of certain issues on appeal, this decision is additionally notable for the lesson it provides that, in order to confirm the right to pursue a motion for a judgment notwithstanding the verdict at the conclusion of a trial, a defendant should (1) submit a proposed point for charge for a binding instruction in favor of the defense, (2) move for a non-suit at the close of the Plaintiff's case, and (3) move for a directed verdict at the close of the entire case in order to pursue a motion for a judgment notwithstanding the verdict.

Anyone wishing to review this decision may click this LINK.

Source:  Article - "Pa. Appeals Court Slashes Award;  Finds Jury Went Too Far With $10 Million Dollar Verdict" by Max Mitchell in the Pennsylvania Law Weekly (April 9, 2020).

Lackawanna County Court of Common Pleas Issues Encouraging Order For Litigants

Here is a LINK to an April 13, 2020 Order issued out of the Lackawanna County Court of Common Pleas in which that Court, similar to other County Courts, confirms that it is open for business and is encouraging litigants to keep their cases moving forward.

A similar Order was also recently issued in Luzerne County.

Formal Opinion: "Ethical Obligations For Lawyers Working Remotely"

Here is a LINK an April 10, 2020 Formal Opinion issued by the Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility relative to "Ethical Obligations For Lawyers Working Remotely."

The Opinion emphasizes the need to protect client confidentiality, for attorneys to exhibit competence with practicing law virtually, and with respect to attorneys treating one another civilly in this new era of the practice.

Business Interruption Insurance Coverage Claims on the Rise

Here is a LINK to a recent article from The National Law Review entitled "Covid-19 Coverage Litigation Escalates" in which notes the anticipated rise in declaratory judgment actions on the issue of whether business interruption coverage should apply to business closures caused by Covid-19 closure orders from the government.  These actions are also being combined with breach of contract and bad faith claims.

CUMMINS LAW is available to defend carriers in such claims in northeastern Pennsylvania.  Contact Dan Cummins at dancummins@CumminsLaw.net to review the issues presented.

The Case of the Missing Email

In the case of Live Face On Web, LLC v. Merchants Insurance Group, No. 2:19-CV-00528-JDW (E.D. Pa. April 1, 2020 Wolfson, J.), the court addressed cross motions for summary judgment on claims involving request for declaratory judgment, breach of contract, statutory bad faith, negligence, and vicarious liability law.

This case was filed under allegations that an insured requested that a vehicle be added to an insurance policy and that the insurance agent failed to notify the carrier of the same. According to the Opinion, the insurance agent denied ever receiving the emailed request from the insured to add the vehicle.  The Court opened the Opinion by call this "the case of the missing email."

The claims against the carrier in this matter included claims of bad faith violations of the Unfair Insurance Practices Act and vicarious liability with regards to the insurance agent’s alleged negligence.

The court granted summary judgment on all claims except for the negligence claim. Notably, Judge Wolfson reaffirmed the rule of law that there is no private right of action against the carrier under the Unfair Insurance Practices Act.

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

I send thanks to Attorney Brigid Q. Alford of the Camp Hill, PA office of Marshall Dennehey for bringing this case to my attention.

Recent Post-Koken Decisions Out of Berks County Favor Plaintiffs

I was recently notified of two (2) Orders issued last year overruling Preliminary Objections in post-Koken Berks County cases seeking to dismiss or sever UIM claims from third party claims in matters in which no bad faith was alleged. Both decisions were issued by Judge Timothy J. Rowley.

The one (1) decision was in the case of Snyder v. Spang and Erie Insurance Exchange, No. 19-05048 (C.P. Berks Co. July 26, 2019 Rowley, J.). 

Anyone wishing to review a copy of this Order click this LINK.

The other decision was issued in the case of Franco v. Walter and Erie Insurance Exchange, No. 19-15873 (C.P. Berks Co. Oct. 7, 2019 Rowley, J.). 

Anyone wishing to review a copy of this Order click this LINK.

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

Consider Cummins Law For Defense of Post-Koken Auto Accident Matters in Northeastern Pennsylvania

The Attorneys at CUMMINS LAW defend Post-Koken motor vehicle accident matters in all Counties all across Northeastern Pennsylvania.

We pledge to deliver our legal services in the most prompt, efficient and responsive manner possible.

Attorney Cummins is the only insurance defense attorney in all of northeastern Pennsylvania to be selected to appear in The Best Lawyers in America Directory under the category of Personal Injury - Defense.   

He is also AV-Rated by the Martindale-Hubbell Directory and is a past recipient of the Pennsylvania Defense Institute's "Distinguished Defense Counsel of the Year Award."

Call or write today to discuss the defense of your claim:
Phone:  570-319-5899
Email: dancummins@CumminsLaw.net

A Three Row Jury Box: Harebrained Idea or a Necessity in a Post-Covid-19 World?

In response to a request for suggestions for ways the Bar and the Bench can navigate the Covid-19 situation, I noted the following.  I still can't tell if it is a harebrained idea or potentially the wave of the future.

One suggestion of mine, with respect to jury trials, was that a third row be added to the jury box, even if that third row is on the outside front of the jury box.  This would enable the 12 jurors and two alternates could spread out more and perhaps sit essentially every other seat.

The third row could at least be on the outside and in front of the box until the jury box wall could me moved outward by a construction contractor so that all 3 rows could be in the box.


In the alternative, perhaps in at least civil cases, the requirement that a jury consist of 12 people and two alternates could be reduced to 6 people and 2 alternates.  In this way, the 6 jurors could spread out in the jury box to sit every other seat so has to engage in continued social distancing in the post-Covid-19 world.

Harebrained ideas or the wave of the future?

What do you think?

Recklessness and Punitive Damages Claims Allowed to Proceed in Tractor Trailer vs. Pedestrian Accident

In the case of Molina v. Timmons, No. 1:19-CV-01707 (M.D. Pa. April 2, 2020 Rambo, J.), the court denied a Defendant’s Motion to Dismiss and Strike relative to claims of recklessness and for punitive damages in a case involving a tractor trailer versus pedestrian accident.

According to the Opinion, the Defendant truck driver was allegedly backing up in a rapid fashion near an area that was used for unloading and loading materials when that driver knocked the pedestrian Plaintiff to the ground and ran over the Plaintiff’s midsection with the two right rear axles of the tractor trailer.

The Plaintiff included allegations of recklessness and request for punitive damages in the filed Complaint. The Motion before the court involved the Defendant’s Motion to Dismiss and/or Strike these claims.

The case was originally filed in Luzerne County but removed to the federal court. As such, the Defendant’s motion was decided under Federal Rule of Civil Procedure 12(b)(6).

After reviewing the Complaint, the court in this matter found that the Complaint adequately alleged reckless conduct. The court noted that the Plaintiff alleged that the Defendant tractor trailer driver backed his truck up at an alleged continuous high rate of speed without checking his mirrors, narrowly missing another vehicle, striking and knocking over the Plaintiff with the back end of his trailer, and continuing to drive in reverse over the Plaintiff’s body.

The court found that, accepting these allegations as true and drawing all reasonable inferences in favor of the Plaintiff as required by the standard of review, these allegations sufficiently pled that the Defendant driver knew or should have known that his actions posed a high degree of risk of harm to others and that he nevertheless acted indifferently to those risks.

The court also found, under the same rationale, that the Complaint sufficiently asserted a claim for punitive damages that could move forward in the case.

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

I send thanks to Attorney Clancy Boyland and Attorney Hannah Molitoris of the Philadelphia office of the Morgan & Morgan law firm for bringing this case to my attention.

Building Inspector Found to Be Immune From Claims of Negligence

In the case of Brown v. Taylor Construction and Demolition, No. 13-CV-2727 (C.P. Lacka. Co. April 2, 2020 Nealon, J.), the court addressed a request from a building official for a finding of immunity from claims liability relative to residential construction work.

According to the Opinion, residential property owners, who allegedly suffer damage as a result of negligent construction work by a contractor, filed suit against the contractor and the entity that was hired to act as the borough’s building construction code official to perform inspections and to grant approvals for construction activities upon request by the contractor. 

The Plaintiffs alleged that the contractor completed substandard work without requesting any inspection or obtaining the proper approvals of the work completed. 

The Plaintiffs separately asserted that the building official was allegedly negligent in conducting inspections and in failing to issue stop work orders.

The case came before the court by way of a Motion for Summary Judgment filed by the building official. The building official asserted that he was immune from liability under the International Residential Code and the Political Subdivision Tort Claims Act. 

Judge Nealon noted that, under the International Residential Code, a building construction code official is immune from liability for any act or omission in the discharge of his or her official duties for the borough which occurred while acting “in good faith and without malice.” 

The court noted that, in this matter, the records lacked any evidence to support a claim that the borough construction code official acted with any malice or bad faith. 

Accordingly, the court held that it was free and clear from doubt that the building construction code official was entitled to judgment as a matter of law. As such, summary judgment was granted.

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

Judge Zulick of Monroe County Addresses Issues of Jurisdiction Over Out-of-State Law Firm in Pennsylvania Malpractice Claim

Preliminary Objections by a NY defendant firm contesting jurisdiction in a legal malpractice case were denied in the matter of Rock v. Russo, No. 7605-CV-2019 (C.P. Monroe Co. March 6, 2020 Zulick, J.).

The Plaintiff brought this legal malpractice case arising out of an injury which occurred at the Kalahari Resorts Pocono Hotel on December 25, 2015.

The Plaintiff, a NY resident, retained NY counsel to pursue her claim. The defendant firm represented the Plaintiff but eventually wrote to the Plaintiff in October of 2017 terminating the representation and allegedly advising the Plaintiff in that letter that she had three years from the date of the incident to file suit.

The Plaintiff alleges that she relied upon that letter and believed that she had three years to file suit.  The Plaintiff did not file suit within two years of the date of the accident.

The Plaintiff brought this suit for legal malpractice and Defendants filed Preliminary Objections contesting personal jurisdiction, arguing that they did not have minimum contacts with PA, since they lived in NY, practice in NY, were not licensed to practice in PA, and given that the firm did not do any business in the state.

After reviewing the current status of the law on personal jurisdiction, Judge Zulick agreed that the Defendants' contacts with Pennsylvania were not significant and that, as a result, there was no support for a finding of general jurisdiction over the Defendants.

However, on the issue of specific jurisdiction, which required the application of Pennsylvania's Long-Arm Statute and the Due Process Clause of the Constitution.  Under that analysis, specific jurisdiction can be found if a defendant's tortious acts or omissions cause harm in Pennsylvania.  The Court found that the Plaintiff's loss of her right to sue was sufficient to satisfy Pennsylvania's Long-Arm statute.

Under the second part of the analysis, Judge Zulick also found that exercising jurisdiction over the case would also not run afoul of the Due Process Clause of the U.S. Constitution.  The Court found that the Defendant firm engaged in minimum contacts with Pennsylvania and purposely availed itself in the Commonwealth of Pennsylvania by seeking to represent a Plaintiff for pecuniary gain in a personal injury matter that arose in Pennsylvania.

In light of this analysis, the Court overruled the Prelminary Objections and ordered the Defendants to file their Answer to the Complaint.

Anyone wishing to review this case may click this LINK.

I send thanks to Attorney Rusty Allen of the Law Offices of W. Austin Allen, II, P.C. of Warminster, PA for bringing this case to my attention.

Sloan Kettering Hospital (NY) Haled Into Court in Philadelphia

In the case of Estate of Albert v. Thomas Jefferson Univ. Hospital, Inc., June Term, No. 1122 (C.P. Phila. Co. Jan. 31, 2020 Massiah-Jackson, J.), the court ruled that it had personal jurisdiction over an out-of-state Defendant after finding that the Defendant had sufficient minimum contacts with Pennsylvania such that the Defendant could have reasonably anticipated being sued in Pennsylvania.

This matter arose out of a medical malpractice action against Sloan Kettering Hospital, which is located in New York. 

The Plaintiff’s Complaint alleged corporate negligence and vicarious liability claims against multiple Defendants with regards to their actions in providing the decedent, David Albert, with allegedly false information about his medical imaging results. The case involved the results of an MRI which the decedent had completed in New York. At all relevant times, the decedent was a resident of Pennsylvania. 

Defendant Sloan Kettering moved for summary judgment arguing that the court did not have personal jurisdiction over it. That Defendant asserted that the Plaintiff had failed to establish any action taken by Sloan Kettering or its agents that caused harm to the decedent in Pennsylvania. 

The Plaintiff responded by arguing that negligent claims involved injuries that occurred while the decedent was present in Pennsylvania. The Plaintiff stated that Sloan Kettering contacted the decedent in Pennsylvania and allegedly provided him with false information about his MRI results. Sloan Kettering then allegedly failed to timely forward those imaging results to the decedent’s physicians, who were located in Pennsylvania. The Plaintiff also alleged that Sloan Kettering promised to coordinate the decedent’s care but that it had failed to communicate with his medical providers who were located in Pennsylvania. The Plaintiff alleged that these steps, and others, allegedly resulted in harm to the decedent in Pennsylvania. 

The court noted that due process law permits specific jurisdiction over a defendant to be found where a defendant engaged in numerous contacts with a forum state. 

The court noted that Sloan Kettering had promoted a treatment program and had promised the decedent and his family to coordinate his care and monitor his medical services. The court also noted that Sloan Kettering had engaged in national marketing and recruitment for its clinical trials, including activities in Lehigh Valley, Pennsylvania. 

The court in this matter found that specific jurisdiction over the Defendant hospital was established based upon the hospital’s extensive contacts with Pennsylvania. After finding that the Plaintiff had met its burden of establishing that the hospital allegedly caused harm to the decedent in Pennsylvania its acts and omissions, the court concluded that Sloan Kettering should have reasonably anticipated being called into court in Pennsylvania. 

As such, the hospital’s Motion for Summary Judgment on jurisdictional issues was denied. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 10, 2020).

Appeal From a Default Dismissed Where Plaintiff Did Not First File Petition To Open or Strike Default

In the case of Cardona v. Buchanan, 2020 Pa. Super. 55 (Pa. Super. March 9, 2020 Olson, J., Nichols, J., Stabile, J.) (Op. by Stabile, J.), the court found that where a trial court entered a judgment of non pros due to a Plaintiff’s failure to prosecute her suit and the Plaintiff thereafter failed to file a Petition to Open the Judgment before appealing, the Plaintiff waived the single issue raised on appeal. 

This matter arose out of a slip and fall incident that occurred in 2005. The Plaintiff began the lawsuit by way of a Writ of Summons in 2007. She thereafter filed a Complaint in November of 2009. 

Nine (9) years later, in November of 2018, the Defendant filed a Motion to Dismiss the action for lack of prosecution. That motion is granted and the case was dismissed with prejudice. The Plaintiff then filed an appeal to the Superior Court without first filing a Petition to Open the Judgment. 

On appeal, the Superior Court found that the Plaintiff waived her objection to the non pros order by failing to file a Petition to Open. The court cited to Pa. R.C.P. 3051 which provides that relief from a judgment of non pros shall be sought by way of a Petition to Strike or Open the Judgment. The court also noted that Rule 3051 mandates that a Plaintiff file the Petition to Open with the trial court before appealing to the appellate court. 

The Superior Court further noted that, since Petitions to Open Default Judgments of Non Pros are mandatory, any appeal related to a judgment of non pros should be made not from the judgment itself but rather from a denial of a Petition to Open or Strike that Judgment.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 25, 2020).

Summary Judgment Denied in Limited Tort Case

In the case of Braniff v. Hartjei, No. 11022-CV-2017 (C.P. Lawrence Co. Aug. 12, 2019 Cox, J.), the court denied a Motion for Partial Summary Judgment based upon the Plaintiff’s election of the Limited Tort option.

After reviewing the law of the case of Washington v. Baxter, the court in this Braniff case noted that the Plaintiff alleged that the accident caused bulging discs and a radiculopathy with respect to her cervical spine. It was noted that the Plaintiff’s cervical spine range of motion decreased following the accident. The Plaintiff additionally complained that she could no longer sit or stand for prolonged periods of time.

The Plaintiff also asserted that her ability to ride in a car was hampered. She additionally noted that her ability to perform the duties of her job, which required her to train other people, was limited.

At her deposition, the Plaintiff also noted that she had difficulty performing her household chores, such as doing the laundry. She additionally testified to having to give up some of her recreational activities.

The court also noted that the Plaintiff was continuing to receive treatment for her injuries from the accident and that surgery was a possibility in her future.

In denying the Defendant’s limited tort Motion for Summary Judgment, the court emphasized that the focus of the inquiry was not on the injuries themselves, but on how the injuries affected the Plaintiff’s bodily functions. The court additionally reaffirmed the rule of law that any alleged impairments did not have to be permanent in order to be considered serious in the context of a limited tort case.

As the court found that reasonable minds could differ on the issue of whether the Plaintiff had sustained a serious injury or a substantial body impairment as a result of the accident, the Motion for Summary Judgment was denied.

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


Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Feb. 11, 2020).

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