Friday, October 30, 2020

ARTICLE: Pennsylvania's Great Dissenter: Justice David N. Wecht

The below article of mine was published in the October 22, 2020 edition of the Pennsylvania Law Weekly and is republished here with permission.  Photos have been added here.


Pennsylvania Supreme Court Justice David N. Wecht

Pennsylvania's Great Dissenter: Justice David N. Wecht

By Daniel E. Cummins | October 22, 2020


On a national level, U.S. Supreme Court Justice John Marshall Harlan was known as “the Great Dissenter” in the history of jurisprudence. Justice Harlan was so designated, in part, given that he was the lone justice to dissent the 1896 decision in the case of Plessy v. Ferguson, one of the Supreme Court’s most notorious and damaging decisions. In arguing against his colleagues’ upholding of the constitutionality of segregation under the doctrine of “separate but equal,” Justice Harlan delivered what would become one of the greatest and most cited dissents in the history of the U.S. Supreme Court.

On a more local level, Justice David N. Wecht, of the Pennsylvania Supreme Court, through a series of pointed and cogent dissenting opinions in which he parted ways from the majority, has established his mark as Pennsylvania’s Great Dissenter. In a number of notable dissenting opinions over the past few years. Wecht has established his allegiance to settled legal precedent and the rule of law and has exhibited his excellent legal analytical skills and writing ability.

Railing Against a Majority ‘Eager’ to Change the Law

One such case evidencing Wecht’s devotion to the rule of law and adherence to the doctrine of stare decisis can be seen in his dissenting opinion in the case of Erie Insuracne Exchange v. Bristol, 174 A.3d 578 (Pa. 2017) (Maj. Op. by Mundy, J.) (Wecht, J., Dissenting). In this case, the Pennsylvania Supreme Court held that the statute of limitations in an uninsured motorist case does not begin to run until there is an alleged breach of the insurance contract, i.e., the denial of a claim or a refusal to arbitrate by the carrier. This was a 6-1 decision with Wecht dissenting on procedural grounds.

The Bristol decision reversed the law set forth in the Pennsylvania Superior Court’s previous ruling in the separate case of Hopkins v. Erie, 65 A.3d 452 (Pa. Super. 2013). In Hopkins, the Superior Court had held that the statute of limitations in an uninsured motorist (UM) benefits claim begins to run on the date of the accident.

By holding under the Bristol case that the statute of limitations instead begins to run at the alleged breach of the UM contract by way of a denial of coverage or a refusal to arbitrate, the majority of the Pennsylvania Supreme Court offered protections to plaintiffs given that, in most cases, the statute of limitations on UM claims would never begin to run as automobile insurance carriers rarely ever deny coverage for UM claims or refuse to arbitrate for fear of exposure to bad faith allegations.

Wecht showed his penchant for proper judicial restraint and dissented from the majority’s opinion in Bristol based upon his conclusion that the issue of when the statute of limitations begins to run on an uninsured motorist claim was not even properly before the Court in that case. He noted that the “apparently eager” majority disregarded that procedural defect and was raring “to overturn more than thirty years of Superior Court precedent.” See Erie Insurance Exchange v. Bristol, 174 A.3d at 590.

Wecht noted in his dissenting opinion in Bristol that, in choosing to address a more expansive issue that was not even before the court, the majority was inexplicably allowing the injured party “to challenge the exact legal principle that he conceded in the lower courts.” Wecht confirmed in his dissenting opinion that a review of the record from the lower courts in this matter confirmed that the injured party “waived the issue that the majority resurrects and resolves on the merits.” Wecht confirmed that the injured party had not only waived the issue but had even conceded the issue in the court below in his response to the summary judgment motion that brought the question before the trial court in the first place. Moreover, Wecht confirmed that the injured party did not even include any arguments in his Superior Court brief regarding the issue of when the statute of limitations commenced.

In his dissent in Bristol, Wecht chastised the eager majority for taking the previous “extraordinary” step in the matter by issuing an order amending the court’s original grant of allocatur in order to adopt a wider question presented on appeal that covered the statute of limitations question exactly as the injured party had framed it, for the first time, in his petition for allowance of appeal.

As noted by Wecht, “Ironically, the issue that Bristol presented in his petition for allowance of Appeal—much like the arguments Bristol made in the courts below—had absolutely nothing to do with the commencement of the applicable statute of limitations.” Yet, according to Wecht, the majority “ventured that it ‘understands’ this issue to encompass a determination of the time at which a cause of action accrues …”

Wecht emphatically noted in his dissent that he did “not share in this creative ‘understanding’” devised by some of the other justices who wanted to review the statute of limitations issue. He further reiterated that, even if it was somehow understood that the question presented before the court could be deemed to cover the issue of when the statute of limitations began to run, the injured party had still failed to preserve the issue for appellate review in any event.

Wecht concluded his blistering dissent in Bristol, with these well-reasoned words to be heeded by the wary:

“For whatever reason, and to my puzzlement, today’s majority is willing to overlook the many procedural defects in this case, even though this court has considered those same defects to be inexcusable in numerous other appeals. Although the majority does not tell us why Bristol’s case warrants such special indulgences, what is clear is that the time has come for this court—either by rule or by decision—to commit to clear standards for determining whether a particular case warrants departure from our ordinary issue preservation doctrines. Absent such standards, the unpreserved issues that the court regularly declines to consider will continue to be indistinguishable from those that we idiosyncratically agree to resolve. In my view, such arbitrary and selective enforcement of our Rules of Appellate Procedure is ill-advised.” See Erie Insurance Exchange v. Bristol, 174 A.3d 578, 592 (2017).

Decrying Encroachments Upon Legislature’s Law-Making Duties

In a number of other cases, Wecht wielded his keyboard to write cogent dissenting opinions that decried the encroachment of the other Justices on the Bench upon the Pennsylvania Legislature’s law-making function.


For example, at the beginning of 2019, Wecht issued a dissenting opinion in the famous Gallagher v. GEICO case in which the majority attempted to eradicate the household exclusion across the board. Wecht decried what he saw as the other justices of the court “upending … well-established precedent” and supplanting its own judgment over that of the Legislature in this area of the law.

The case of Gallagher v. GEICO was not the only time the justice sparred with the other members of the court about their departures from precedent. In an Oct. 31, 2019, dissenting opinion in the case of Yanakos v. UPMC, 218 A.3d 1214 (Pa. 2019), Wecht again distanced himself from the ruling of the majority of the Pennsylvania Supreme Court in another high-profile case involving medical malpractice issues. In that case the majority found the long-standing seven-year statute of repose passed by the Pennsylvania General Assembly was unconstitutional.

In his powerful dissenting opinion, Wecht stated that the majority’s standard for reviewing the issue was “contrary to our precedent” and “encroached” on the legislature. He further noted that he felt compelled to dissent from this decision since “it is not this court’s role to upend duly enacted legislation simply because we might sometimes deem it imperfect or unwise.”

In its more recent decision in the same case of Yanakos v. UPMC, 224 A.3d 1255 (Pa. Jan. 31, 2020), a majority of justices on the Pennsylvania Supreme Court declined to reconsider its original decision in this case from 2019 in which the court struck down the statute of repose thereby allowing a wider avenue of recovery for Plaintiffs in a certain class of medical malpractice claims.

In his dissent to that decision, Wecht again aptly expressed his ardent disagreement with the majority’s refusal to reconsider its decision and wrote that “the filing before us illustrates that the decision in Yanakos was not just incorrect, but was confused as well. Confused about the law. Confused about procedure. Confused about insurance. Confused about the questions presented.”

Wecht also noted that not only did the appeal in Yanakos take on a life of its own after it reached the Pennsylvania Supreme Court but “this [Pennsylvania Supreme Court] breathed new life into it” by expanding the issue before the court. Wecht found that this expansion of the issue by the justices in the majority enabled those justices to address more expansive issues and issue a decision of a wider scope on matters that, in the words of Wecht’s dissent, the plaintiff “had never argued and that the lower courts had never considered.”

Wecht also indicated that he wanted a reconsideration of the decision in Yanakos because the decision by the majority in its Yanakos decision from 2019 ruling that the statute of repose was unconstitutional “ignored precedent, misinterpreted the remedies clause of the Pennsylvania Constitution, and incorrectly adopted (and then misapplied) the intermediate scrutiny test.”

In chastising the majority for refusing to allow for a reconsideration of the issues presented in Yanakos, Wecht went on to write, “Reargument is a fail-safe. It gives an appellate court the opportunity to admit that it made a mistake. This court should have taken advantage of that opportunity today.” For these reasons, Wecht dissented from the decision by the majority in its 2020 decision in Yanakos to preserve their previous decision by denying any reconsideration of the issue.

Taking A Stand Against a Freewheeling Majority

In its 2019 decision in the case of Sayles v. Allstate Insurance, 219 A.3d 1110 (Pa. 2019), the Pennsylvania Supreme Court found that standard language found in automobile insurance policies requiring insureds to attend independent medical examinations (IME) at the request of carriers in the first party medical benefits context conflicted with the law set forth in Pennsylvania’s Motor Vehicle Financial Responsibility Law. The Supreme Court ruled that carriers must instead institute motions practice and petition the trial court for approval of a request to refer an insured to an IME.

Wecht noted in Sayles that, as the applicable law provided at the time, “nothing in the text of the MVFRL mandates that insurers invoke the judicial process in order to arrange for a medical examination of the insured that is authorized through prior contractual agreement.” As such, Wecht stated that he found himself “compelled to dissent.”

In his dissenting opinion in the Sayles case, Wecht noted that the decision by the majority in this case was not one that the Pennsylvania Supreme Court could “adopt and impose by judicial fiat.” Rather, according to Wecht, it was the job of the General Assembly to make such changes to the law and Wecht emphasized that the Pennsylvania Supreme Court was “not empowered to re-write the MVFL in the meantime.”

In this regard, Wecht noted in his dissent Sayles that, as he has explained in previous opinions, he "disagree[s] respectfully with this court’s freewheeling and unwarranted invocation of ‘public policy’ in cases involving the MVFRL.”

Wecht noted that the basic questions presented before the court in the Sayles case was simply whether the insurance policy provisions at issue conflict with the MVFRL and are, therefore, not enforceable. He chastised the majority, noting that the majority’s “framing of that question euphemistically or vaguely as something rooted in “public policy,” rather than statutory interpretation, has created a misperception that jurists posses some inherent lordly authority to displace written agreements based upon our own idiosyncratic conceptions of what strikes us as desirable or undesirable “‘part of policy.’”

He also powerfully stated that the majority’s “resort to this ‘public policy’ device throughout our MVFRL jurisprudence has confused more than it has clarified. More importantly, it risks an appearance of jurisprudence that is arbitrary, unprincipled, and ultimately illegitimate. It should be abandoned.”

It is noted that Wecht had made a similar argument in his dissenting opinion in the case of Gallagher v. Geico, 201 A.3d 131, 142 n. 5 (Pa. 2019) (Wecht, J, Dissenting) in which the Pennsylvania Supreme Court majority attempted to eradicate the household exclusion across the board and well beyond the facts before it. In that dissent, Wecht wrote that the Pennsylvania Supreme Court’s decision in Gallagher was “premised more upon a policy judgment than upon a discernible legal principle.”

At the end of his dissent in the Sayles decision, Wecht noted that the majority’s “novel interpretation of the MVFRL is yet another sign that this court has assumed a quasi-legislative or even legislature-supervising role in the automobile insurance arena.” In the end, Wecht felt that the majority’s decision in Sayles to render IME clauses in automobile insurance policies as unenforceable under public policy arguments “is not a judgment call that this court is authorized, or even well-equipped, to make.”

A review of the above dissenting opinions confirms that Justice Wecht’s reasoning, analysis of the law, and excellent writing ability establishes him as one of the great justices in the history of the Pennsylvania Supreme Court. His decisions, both when he is in the majority of the court and when dissenting, confirm that he understands the role of the court in our society, including with respect to applying the law as it has been made by the Legislature and leaving law-making function to that separate branch of government. Whether he writes a majority opinion or a dissenting opinion, it is highly recommended that his decisions be read for, even if you disagree with his decision, your own writing may be improved by reading his writing.


Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

Thursday, October 29, 2020

Celebrating a Milestone -- 3,000 Tort Talk Blog Posts Since 2009

 


There have now been 3,000 posts to this Tort Talk Blog since its inception back in May of 2009.


Since its inception, the Tort Talk Blog posts have had over 2.7 million views.


I send thanks to all who have supported the blog by sending cases to be highlight on Tort Talk and I thank all of you readers.







Presenting at the Upcoming Luzerne County Bench - Bar Conference Set for November 5th

 

WILKES-BARRE LAW & LIBRARY ASSOCIATION


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TORT TALK




Present another One Hour ZOOM CLE
(as part of the Luzerne Bench-Bar Conference)

Friday, November 5, 2020 at 1:00 pm





ENJOYING THE HOLIDAYS WITH TORT TALK:

A Holiday Themed Civil Litigation Update

(1 Substantive CLE Credit)


Presented By

Daniel E. Cummins, Esquire
of
Cummins Law
Clarks Summit, PA



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HERE IS A LINK TO THE AGENDA FOR THE ENTIRE 
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Wednesday, October 28, 2020

A Middle of The Road Decision on the Split of Authority on Pleading Recklessness

Taking the Middle Road


In the case of Seber v. Kline, No. CI-20-03109 (C.P. Lanc. Co. July 1, 2020 Brown, J.), the court sustained Preliminary Objections filed by a Defendant to allegations of recklessness and also struck a punitive damages claim from the matter in a case involving a motor vehicle accident. 
According to the Opinion, this matter involved a rear-end accident. 

When the Plaintiff filed suit, the Plaintiff included allegations of recklessness in the Complaint and also requested punitive damages as part of the gross negligence/recklessness claim. 

In response, the defense filed Preliminary Objections seeking to strike the allegations of gross negligence and recklessness in this rear-end accident case, as well as seeking to dismiss the claim for punitive damages. 

In his Opinion, Judge Brown cited to the case of Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010) for the proposition that, under Pennsylvania tort law, recklessness is subsumed by and sounds in negligence. Judge Brown noted that the Superior Court in Archibald stated that, “even though we hold [the Plaintiff] must prove [the Defendant] acted recklessly, the cause of action remains, sounding in negligence.” 

Judge Brown also separately acknowledged that recklessness may be pled generally under Pa. R.C.P. 1019(b) as a condition of the mind. 

However, Judge Brown went on to note that there are “Two distinct types of recklessness. The first allows for punitive damages, and the second does not.” 

The court noted that the first type of recklessness, which may support claims of punitive damages, involve cases where the actor knows, or has reason to know of facts which create a high degree of risk of harm to another, and the actor still deliberately proceeds to act, or fails to act, in conscious disregard of, or indifference in that that risk. 

The court in this Seber case noted that the second type of recklessness is “where the actor has such knowledge or reason to know the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so.” 

Judge Brown noted that, although claims of recklessness may be pled generally under the Pennsylvania Rules of Civil Procedure, the words ‘reckless’ ‘indifferent’ ‘willful’ ‘wanton,’ ‘willful misconduct,’ ‘wanton misconduct,’ and other similar words were "legally insufficient to support a demand for punitive damages" under the facts at issue in this case. See Op. at p. 4. 

More specifically, the court ruled that in this matter that the facts alleged by the Plaintiff in a matter involving a standard rear-end accident “are legally insufficient to support a demand for punitive damages.” See Op. at p. 4.  More specifically, Judge Brown ruled that “[e]ven when read in the light most favorable to Plaintiffs, no facts averred in the Complaint point to this being a case of more than mere negligence.” 

The court went on to note that the facts pled do not point to conduct that is malicious, wanton, reckless, willful, oppressive, or outrageous. The court additionally found that the facts stated in the Complaint failed to point to any state of mind that was intentional, reckless, or malicious. 

Rather, the court found that the facts pled in this simple rear-end accident case are the same types of facts used to support a showing of mere negligence only. As such, the court granted the Defendant’s Preliminary Objections to the claims of recklessness, gross negligence, and for punitive damages and struck them from the Complaint without leave to amend.


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


I send thanks to Attorney Kevin T. McGarry of the Lancaster, Pennsylvania office of Post & Schell, P.C. for bringing this case to my attention.

Tuesday, October 27, 2020

Section 1983 Civil Rights Complaint Dismissed Where Court Finds that Probable Cause Existed to Support the Police Officer's Actions


In the case of Raj v. Dickson City Borough, No. 3:17-692 (M.D. Pa. Oct. 14, 2020 Mannion, J.), the court addressed a Motion for Summary Judgment filed by Defendants in a §1983 civil rights action arising out of a traffic stop and a vehicle search that allegedly revealed cocaine in the vehicle. 

The Plaintiff brought §1983 claim for unreasonable search and seizure, false arrest, malicious prosecution, and municipal liability. 

After finding that there was probable cause to arrest the Plaintiff, the court dismissed each of the Plaintiff’s claims under §1983 for unlawful search and seizure, false arrest, malicious prosecution, and for municipal liability. The court noted that, where there was probable cause for the arrest, there was no constitutional violation such that the Plaintiff’s §1983 claims failed as a matter of law. 

The court also noted that there is no evidence presented that the police disregarded the truth in his application for an arrest warrant. Nor was there any evidence of additional information which would have confirmed that there was no probable cause to support the officer's actions. 

Given that there was no lack of probable cause in this matter to support the arrest warrant, the court also granted summary judgment on the Plaintiff’s supplemental state law claims based upon claims of false arrest and malicious prosecution. 

In the end, the court granted summary judgment in favor of the defense on these allegations in the Plaintiff’s Complaint and dismissed the matter. 

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


I send thanks to Attorney Patrick J. Murphy of the Scranton, PA office of Bardsley, Benedict & Scholden, LLP for bringing this case to my attention. 

Judge Crafts Remedy in Coverage Action So that Injured Party is Not Left Out of the Fight


In the case of Crum & Forster Specialty Ins. Co. v. Strong Contractors, Inc., No. 2:19-CV-03519-JD (E.D. Pa. Sept. 18, 2020 DuBois, J.), the court addressed issues surrounding an injured party’s desire to intervene into a declaratory judgment action between a liability carrier and the alleged tortfeasor. 
According to the Opinion, in an underlying state court action, the injured party Plaintiff filed suit against the alleged tortfeasor, Strong Contractors, claiming that the negligence of the tortfeasor in failing to barricade an opening in a floor on a construction site led to the Plaintiff’s injuries. 

The carrier for the alleged tortfeasor filed this federal court action seeking to rescind its policy issued to the alleged tortfeasor on the grounds that the alleged tortfeasor had allegedly misrepresented important information in its application for the insurance coverage. When the alleged tortfeasor failed to appear in the federal court action, the insurance company moved to have a default judgment entered. 

At that time, the injured party Plaintiff filed a Motion to Join the federal court action as a necessary party. 

The federal court agreed with the carrier’s position that the injured parties did not qualify as a necessary party in this federal court declaratory judgment action on coverage given that the injured party only had a financial interest in the outcome of the case, which did not constitute a legally protected interest recognized under Rule 19 governing the intervention into actions by new parties.

The court additionally ruled that the injured party was not entitled to intervene as of right and was not entitled to join the action under a permissive intervention under F.R.C.P. 24, again noting that the injured party’s interests in the outcome of the federal court coverage action was merely economic in nature. 

The court also held that the injured party’s contingent financial interests did not generate common questions of law or fact with the coverage dispute. 

Despite ruling against the injured party’s Motion to Intervene, the federal court ultimately declined to retain its jurisdiction over this coverage action under the Declaratory Judgments Act. 

The court ruled that the intertwined nature between the present coverage action and the injured party’s personal injury against the alleged tortfeasor would make granting a default judgment in favor of the liability carrier an inequitable result. As such, the court noted that, if the carrier were to file its declaratory judgment action in state court, the injured party would have to be joined as an indispensable party. 

The court ruled that it appeared that the carrier had filed suit specifically to avoid having to join the injured party or others to its coverage action. As such, the federal court declined to retain jurisdiction over this matter. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 8, 2020).




Full Agenda for Upcoming Luzerne County Bench-Bar Conference (Non-Members Welcome for small fee)

 


Monday, October 26, 2020

Contacted by National Newsletter for Comments on the Status of Jury Trials and ADR Proceedings in Pennsylvania During the Pandemic

 

Here is a LINK to the October 26, 2020 edition of the Auto Insurance Report, a national newsletter put out weekly by Risk Information, Inc., a company that provides strategic information to the property and casualty insurance inducstry.  The article is republished here with permission.

Ed McMenamin, the author of the article entitled "Pandemic Changes Courtroom Dynamics, Jury Demographics," contacted me for input on the reopening of the courts in terms of jury trials in Pennsylvania and the impact of the pandemic upon the movement of cases towards ADR conclusion instead.

I send thanks to Mr. McMenamin for contacting me in this regard and offer up this article for your review.


Still Time to Register for Holiday Themed Civil Litigation Update

 LACKAWANNA BAR ASSOCIATION




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Present another One Hour ZOOM CLE

Friday, November 13, 2020 at Noon







ENJOYING THE HOLIDAYS WITH TORT TALK:

A Holiday Themed Civil Litigation Update

(1 Substantive CLE Credit)


Presented By

Daniel E. Cummins, Esquire
of
Cummins Law
Clarks Summit, PA




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Eastern District Court Remands Motor Vehicle Accident Insurance Coverage Question Back to State Court



In the case of Gibbons v. Mid-Century Insurance Company, No. 20-3381 (E.D. Pa. Sept. 24, 2020 Kenney, J.), the Court granted a Motion to Remand a motor vehicle accident insurance coverage Declaratory Judgment action that was removed to federal court. 

The case arose out of a car accident where the minor children witnessed their father’s death as the family crossed a street as pedestrians. The insurance dispute focused on the ability of the children to receive coverage for claims of emotional distress. 

After the case was removed to federal court by the carrier, the Plaintiff filed a Motion to Remand and argued that the case should be remanded because the issue involved in the case has not been decided by the Pennsylvania Supreme Court and was based exclusively upon state law. 

The carrier argued that the District Court should exercise jurisdiction because there was no other parallel state court case pending.

The District Court noted that, if it retained jurisdiction, it would need to determine “whether Pennsylvania law or public policy precludes an insurance policy from defining emotional distress injuries suffered by a bystander witnessing the death of a close relation as derivative of the injury sustained by the relation.” 

The District Court noted that the Pennsylvania courts have not reached a well-settled conclusion on the issue. As such, the Court exercised its discretion under the Federal Declaratory Judgment Act and chose to abstain from jurisdiction. Accordingly, the insured’s Motion to Remand was granted.

Anyone wishing to review this decision may click this LINK.

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

Case That Was Removed to Federal Court Is Remanded Back to State Court

 


In the case of Lin v. Mid-Century Ins. Co., No. 20-3876 (E.D. Pa. Sept. 24, 2020 Pappert, J.), the court addressed issues pertaining to removal of a case to Federal Court and remand of the same.

In this case, the court ruled that, in a UIM case in which the Plaintiff alleged herniations and submitted a demand of a $124,500.00, was a case that was removable immediately such that the carrier should not have waited for an Amended Complaint that included punitive damages and bad faith claims, before removing the case. 

The issue before the court was a Plaintiff’s Motion to Remand the case under an argument that the initial removal was untimely under 28 U.S.C. §1446(b), given that the carrier filed its removal notice more than thirty (30) days after it received the Plaintiff’s initial Complaint. 

The carrier had contended that removal was timely because it could not ascertain that the value of the Plaintiff’s claims exceeded the $75,000.00 jurisdiction limit until the Plaintiff had filed its Amended Complaint.

In the end, the court granted the Plaintiff’s Motion to Remand the case to state court. The court noted that the Plaintiff’s Amended Complaint contained the same facts and allegations but added allegations of bad faith. 

The court noted the rules of removal that require a Defendant to file a Notice of Removal within thirty (30) days of receiving the initial pleading setting for the claims in a civil action. 

Where an initial pleading does not state a removable case, a Defendant may file for removal within thirty (30) days of receiving an amended pleading, motion, order, or other paper from which it may be first ascertained that the case is one which is or has become removal. 

Generally speaking, the thirty (30) day period for removal begins to run when a Defendant can reasonably and intelligently conclude from the pleadings or other papers that the amount in controversy exceeds the jurisdictional minimum. 

Here, the court held that the carrier could have reasonably and intelligently concluded that the amount of the controversy exceeded $75,000.00 from a review of the initial Complaint filed by the Plaintiff based upon the nature of the injuries alleged. In that regard, the court noted that the original Complaint asserted that the Plaintiff had sustained cervical disc herniations at multiple levels. The court felt that the alleged injuries, taken together, with injury allegations found in other decisions that have allowed the removal based upon a finding that the injuries alleged could satisfy the amount controversy for diversity jurisdiction, supported the conclusion that the Defendant had the opportunity to remove the case sooner and failed to do so. 

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

I send thanks to Attorney Michael J. Lyon of the Lansdale, Pennsylvania office of Walsh Pancio, LLC for bringing this case to my attention. 

Friday, October 23, 2020

Sponsorships Available for the Lackawanna Pro Bono Virtual Fundraising Gala

 


Claims Allowed To Proceed Against Personal Care Home

Lackawanna County Court of Common Pleas

In the case of Rogowski v. Harrison House Personal Care Home, No. 20-CV-2009 (C.P. Lacka. Co. Sept. 28, 2020 Nealon, J.), the court addressed issues with respect to a duty of care and the application of §323 of the Restatement (Second) of Torts arising out of claims against a personal care home by a resident.
The personal care home resident alleged physical and emotional harm allegedly sustained as a result of assaults by another resident, substandard medical care, and institutional neglect. 

One of the Defendants in this matter filed a demurrer.  That Defendant was the advocacy alliance which was allegedly authorized by the Social Security Administration Act as the resident’s payee for Social Security benefits and manage the same for the resident.  That Defendant asserted that was not liable for any claims of damages on the grounds that the Defendant did not have a duty to protect the resident of the personal care home or any duty to scrutinize the services provided by the personal care home.

The court ruled that, although it was alleged that the personal care home and its owner were aware of serious problems at the home which allegedly increased the risk of harm to the resident, the Plaintiff’s Complaint was found to lack any allegations that the advocacy alliance, as the payee, knew, or should have known, of any issues at the personal care home that could have exposed the resident to possible injury. 

The court also found that the Complaint lacked any factual averments or reasonable inferences that the payee undertook or otherwise assumed any responsibility to monitor or review the quality of care at the home. 

As such, based upon the allegations set forth in the Plaintiff’s Complaint, the court ruled that the representative payee did not owe the resident any common law duty of care upon which to base a negligence claim for physical and emotional harm sustained by the resident at the home. Accordingly, the claims against the payee for non-economic damages was dismissed. 

However, in light of the payee’s fiduciary duties relative to the resident’s Social Security benefits, the demurrer to the “pecuniary loss” claims relating to the advancement of rent and expenditures was overruled.


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


Thursday, October 22, 2020

Pennsylvania Supreme Court Hands Down Decision on Personal Jurisdiction Issues

In the case of Hammons v. Ethicon, Inc., 7 EAP 2019 (Pa. Oct. 21, 2019) (Op. by Baer, J.), the Pennsylvania Supreme Court reviewed jurisdictional issues in a pelvic mesh products liability case.   In the end, the court affirmed a judgment in favor of the Plaintiffs on appeal.  

The case presented a jurisdictional challenge in a matter involving a lawsuit filed in Pennsylvania by an Indiana resident who had a surgical procedure performed in Indiana and who alleged injuries from an implanted pelvic mesh that was manufactured by New Jersey corporate defendants.

With regards to issues pertaining to personal jurisdiction over Defendants, the court reaffirmed the rule that a Defendant challenging personal jurisdiction has the burden of supporting that objection.   

The Court provided a detailed summary of the current status of the law pertaining to personal jurisdiction which was noted to be in a state of flux.  The Court reviewed several notable United States Supreme Court Opinions, the most recent of which was in the case of Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County137 S. Ct. 1773 (2107).   Concisely, after the Bristol-Myers case, the following three (3) elements must be met in order for specific personal jurisdiction to lie over a defendant:  

First, a defendant must have purposefully conducted activities within the forum state, or must have purposefully directed its conduct towards the forum state.  

Second, the plaintiff’s claim must arise out of or relate to the defendant’s activities in the forum state or directed towards the forum state.  

Third, overall, a finding of jurisdiction over the defendant must be fair and reasonable.  

Here, the court found that the Defendant’s suit-related contacts justified jurisdiction in that the particular Defendant supervised the design and manufacturing process of its product in Pennsylvania in collaboration with a Pennsylvania company.  The court additionally noted that this particular Defendant also worked with a Pennsylvania physician in developing and marketing the product which, in this case, was a medical product used to treat prolapsed pelvic organs.  

In other words, the Pennsylvania Supreme Court took a wider, big picture view in its analysis and determined that the case as a whole established ties between the defendant's actions in the forum state and the litigation.  See Op. at p. 36-37.

In favoring the Plaintiffs' position, as it has been wont to do, the Pennsylvania Supreme Court rejected a more narrow analysis of the jurisidictional issue as such a contrary view "could unnecessarily restrict access to justice for plaintiffs."  See Op. at p. 36.

The Majority Opinion of this 6-1 decision can be viewed HERE.

The Concurring Opinion can be viewed HERE.

The Dissenting Opinion can be viewed HERE.

Excellent Program for CLE Credits via Zoom

 

WILKES-BARRE LAW & LIBRARY ASSOCIATION


and 

TORT TALK




Present another One Hour ZOOM CLE
(as part of the Luzerne Bench-Bar Conference)

Friday, November 5, 2020 at 1:00 pm





ENJOYING THE HOLIDAYS WITH TORT TALK:

A Holiday Themed Civil Litigation Update

(1 Substantive CLE Credit)


Presented By

Daniel E. Cummins, Esquire
of
Cummins Law
Clarks Summit, PA



For this CLE Session Enter:
Webinar ID: 817 8425 3290
Passcode: 963162


HERE IS A LINK TO THE AGENDA FOR THE ENTIRE 
LUZERNE COUNTY BENCH BAR CONFERENCE

Free for Luzerne Co. Bar Members; 
Fee for Non-members: $50
(Paid fee gets you access to all courses at Bench Bar -- 3 Substantive, 1 Ethics CLE)
(All fees go to the Bar Association)


MEMBERS OF THE LUZERNE BAR CAN REGISTER HERE.

NON-MEMBERS OF THE LUZERNE BAR CAN REGISTER AND PAY ONLINE HERE


Registrants Will Be Able to Access the Tort Talk 2020 Civil Litigation Update Booklet on the Bar's website.

Minimum requirement for access to this program is a computer, laptop, Ipad, cell phone or telephone.   If you plan to use your cell phone or an Ipad,

you will need to download the Zoom App.





If you have any questions, please call Gail Kopiak at (570) 822-6712.




Technical Support Provided by:




Bring Your Case To a Close with:



(570) 319-5899

dancummins@CumminsLaw.net

Wednesday, October 21, 2020

Verdict For Past Medical Expenses But Not For Pain and Suffering Overturned By Trial Court


In the decision of Mazzie v. Lehigh Valley Hospital-Muhlenberg, No. 2016-C-2523 (C.P. Lehigh Co. Dec. 31, 2019 Varricchio, J.), handed down at the end of last year, the court ruled that the Plaintiffs were entitled to a new trial limited to damages in this medical malpractice case where the jury awarded the Plaintiffs $39,000.00 for past medical expenses but $0 damages for pain and suffering, future medical expenses, and loss of consortium. 

The court ruled that this verdict shocked the court’s conscience such that the court granted the Plaintiffs’ Motion for a New Trial.

According to the Opinion, the case arose out of an alleged medical malpractice related to a surgical procedure. 

The court in this matter cited to the case of Davis v. Mullen, in which that court ruled that a jury’s award of medical expenses without compensation for pain and suffering should not be disturbed where the trial court had a reasonable basis to believe that the jury did not believe that the Plaintiff suffered any pain and suffering or that a pre-existing condition or injury was the sole cause of the alleged pain and suffering. 

In contrast, the court in the Mazzie found that there was no reasonable basis to believe that the Plaintiff did not suffer any pain as a result of the alleged malpractice. The court also found that there was no reasonable basis to believe that a pre-existing condition or injury was the sole cause of the Plaintiff’s alleged pain and suffering. 

As such, the trial court granted a new trial limited to the issue of damages. 

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

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



Tuesday, October 20, 2020

Lehigh County Court Judge Slams Carrier With Million Dollar Bad Faith Verdict


Tort Talkers may recall that, back in January of 2020, the bad faith case of Unterberg v. Mercury Ins. Co., No. 2016-C-806 (C.P. Leh. Co. 2020 Pavlack, J.) was reviewed.  In that decision, the court entered judgment in favor of a Plaintiff and against the carrier on both a breach of contract claim and on a statutory bad faith claim with the bad faith damages to be determined in a separate hearing. 

This case arose out of the carrier’s denial of a theft and/or vandalism claim relative to the insured’s vehicle. 

According to the findings of the court, there was no reason to believe that the insureds had anything to do with the theft or the vandalism of their vehicle. 

After reviewing other issues to support its opinion, the court found that the carrier breached its contract and that the carrier had no basis to deny the claim particularly where employees of the carrier had admitted that the vehicle was vandalized based upon the investigation completed. 

The court also found that the carrier knew or recklessly disregarded its lack of a reasonable basis in denying the claim presented. Accordingly, the court held that the carrier acted in bad faith when it denied the insurance claim of the Plaintiff. 

Anyone wishing to review a copy of that prior January of 2020 decision may click this LINK.

By way of update, on October 15, 2020, the same Judge in the same case entered her decision on the damages aspect of the case.  After reviewing the facts and the current state of Pennsylvania regarding the award of damages in a bad faith case, the court entered an Order awarding the Plaintiff's in excess of $1 million dollars.  Included within that decision was an award of $900,000 in punitive damages.

Anyone wishing to review the Court's detailed Order on the issue of damages, may click this LINK.

I send thanks to Attorney Steven A. Bergstein of the Allentown, PA law firm of Engel, Weiner, Bergstein and Fleischaker for bringing this decision to my attention.

Monday, October 19, 2020

Please Save the Date and Register for Upcoming Zoom CLE

 LACKAWANNA BAR ASSOCIATION




and 


TORT TALK


Present another One Hour ZOOM CLE

Friday, November 13, 2020 at Noon







ENJOYING THE HOLIDAYS WITH TORT TALK:

A Holiday Themed Civil Litigation Update

(1 Substantive CLE Credit)


Presented By

Daniel E. Cummins, Esquire
of
Cummins Law
Clarks Summit, PA




Free for LBA Members; Fee for Non-members: $60.00
(All fees go to the Bar Association)

Registration Limited to First 100 persons to Register

Registrants Will Be Able to Access the Tort Talk 2020 Civil Litigation Update Booklet on the Bar's website.



Contact Kaitlin McDonough at kmcdonough@lackawannabar.org to register whether you are a member or a non-member. 

Payment by non-members due on registration.  After contacting Kaitlin McDonough to register, Non-members are requested to go to www.lackawannabar.org and clicking on the “Payments” button at the top of the website.


Technical Support Provided by:



CLE SPONSORED BY:


Superior Court Upholds Jury's Verdict for Future Medical Expenses in Limited Tort Case Even Though No Serious Injury Found


In the Non-precedential decision in the case of Darwish v. Einspahr, No. 2588-EDA-2019 (Pa. Super. Sept. 24, 2020 Bowes, J., Shogan, J., and Pellegrini, J.) (Mem. Op. by Bowes, J.) [non-precedential], the Pennsylvania Superior Court reversed a trial court decision that had found that the $50,000.00 verdict on future medical expenses in a limited tort motor vehicle accident case was proper even though the jury did not find serious impairment. 

The trial court had vacated and molded the jury verdict in favor of the Plaintiff from an award of $50,000.00 to $0. As noted, on appeal, the Pennsylvania Superior Court vacated that ruling and remanded the case for entry of judgment on the jury’s verdict. 

In its Opinion, the Superior Court affirmed that the jury found that the limited tort Plaintiff did not suffer a serious impairment of body function, but had awarded the Plaintiff $50,000.00 in economic damages to compensate her for future medical expenses. 

Following the trial, the Defendant asserted that the award of future medical expenses should be overturned because the evidence presented to the jury in that regard was speculative and that the jury’s award of such money was against the weight of the evidence, equivocal, and contrary to law. The Defendant also asserted that, since the jury determined that the Plaintiff did not sustain a serious impairment of a bodily function, the jury’s award of future medical expenses was grossly excessive and shocked one’s sense of justice. As noted, the trial court agreed and reduced the verdict to zero. 

In its Opinion on appeal, the Superior Court started with a note that the law favors jury verdicts and restricts trial court judge’s abilities to mold a verdict. 

The Superior Court rejected the trial court’s notation that, since there was no evidence of past medical expenses, the likelihood that the Plaintiff would incur in future medical expenses was “speculative.” The Superior Court noted that, often times, in motor vehicle accident cases, there are no claims for past medical expenses as the same are typically precluded. The court additionally noted that there was considerable evidence in this matter for the jury to conclude that the Plaintiff was injured and would require treatment in the future. 

Also, the Pennsylvania Superior Court noted that the question of whether the Plaintiff sustained a serious impairment of a bodily function was a separate question as to whether or not the Plaintiff had sustained injuries requiring future treatment. The Superior Court again noted that sufficient expert medical evidence was produced by the Plaintiff in support of the future medical expenses claim.

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


It is noted that there are reports that a motion will be filed with the Superior Court to request that this decision be reissued as a precedential decision.

Opportunity for an Ethics CLE Credit at Zoom CLE Set for Tomorrow

 

Here is a LINK to an advertisement for an upcoming Philadelphia Association of Defense Counsel Zoom CLE seminar entitled "Preventing Legal Malpractice and Ethics Complaints in 2020" and set to take place on October 20, 2020 at 12:30 p.m.

The seminar is being presented by Todd C. Scott, VP Risk Management with Minnesota Lawyers Mutual Insurance Company and will be moderated by Attorney Kathleen D. Wilkinson of the Philadelphia office of Wilson Elser.

I note that I am not presenting at this event and am not affiliated with the event.  I have only been asked to post on this event.

Non-members are welcome to attend.

More details on the event and how to register can be found at the above Link.