Thursday, April 22, 2021

Court Allows for Jurisdiction in Pennsylvania Over Connecticut-Based Company Based, in part, On Website Activity



In the case of D&S Auto Sales v. Commercial Sales & Marketing, No. 19-CV-7494 (C.P. Lacka. Co. Feb. 19, 2021 Nealon, J.), the court ruled that a Connecticut-based auto dealership can be sued in Pennsylvania because its website specifically targeted consumers from Pennsylvania and actively pursued their business.

After reviewing the record before him, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas found that enough buyer-seller activity occurred on the Defendant’s interactive website to establish general jurisdiction to allow the case to move forward in Pennsylvania.

Judge Terrence R. Nealon
Lackawanna County 

In his decision, Judge Nealon noted that a number of activities occurred over the interactive website as opposed to visitors to the site just gathering information, including customers scheduling vehicle maintenance, requesting parts to be ordered, checking availability of vehicles, and inquiring about pricing.

The Court found that this level of interaction activity sufficient to form a basis for general jurisdiction over the Defendant.


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

Pennsylvania Superior Court Allows for Statute of Limitations Issue to be Addressed by way of Preliminary Objections


In the case of Sayers v. Heritage Valley Medical Group, Inc., No. 405 WDA 2020 (PA Super March 15, 2021, Bowes, J. Olson, J. and Musmanno, J.) (Op by Olson, J.), The Pennsylvania Superior Court found that the trial court property dismissed a Plaintiff’s medical malpractice action on statute of limitations grounds even though the Defendants raised the issues by way of Preliminary Objections instead of through their New Matter.

According to the opinion, there were delays in reissuing and completing the service on the writ of summons.

One of the Defendants asserted a statute of limitations defense by way of Preliminary Objections. The Plaintiffs filed a Preliminary Objection to the Defendant’s Preliminary Objections. The main argument put forth by the Plaintiffs was that a statute of limitations defense must be raised in a New Matter.

After finding that the record clearly established that the writ of summons filed by the Plaintiff failed to toll the status of limitations, the trial court either elected to address the status of limitations defense in the interest of judicial economy and dismiss the Complaint.

The Pennsylvania Superior Court stated that generally speaking, a statute of limitations defenses is indeed properly raised in a New Matter and not in Preliminary Objections. 

However, the court noted that there is an exception to the rules that permits the trial court to address in affirmative defense on the merits when it has been brief, argued, considered, by the trial court, and if it is apparent from the record that, if the affirmative defense were properly raised in a New Matter, the Defendant party would have the right to assert the issue in a Motion for Judgment on the Pleadings.

Pennsylvania Superior Court also stated that the affirmative defense may be raised by Preliminary Objections were it is established under phase of a Complaint that the same is of merit or where the Plaintiff failed to object to this procedural irregularity, i.e. by failing to file Preliminary Objections to improper Preliminary Objections asserted by the Defendant.

In this case, the court found that there is no evidence or information that the Writ that was filed by the Plaintiff was ever delivered to the Sheriff's Department for service.  Nor was there any other evidence to show a good faith effort on part of the Plaintiff to complete service. 

As such, the appellate court found that it was proper for the trial court to have addressed the statute of limitations issue. The appellate court also affirmed the entry of the Order of the trial court sustaining the Defendant's Preliminary Objections and dismissing the Complaint.


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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 30, 2021).

Wednesday, April 21, 2021

Report of Consulting Firm Retained By Defendant After Industrial Accident Ruled Discoverable


In the case of Vimelson v. Johnson Mathey, Inc., 2021 Pa. Super. 20 (Pa. Super. Feb. 17, 2021 Bender, P.J.E., Lazarus J., Stevens, P.J.E.) (Op. by Lazarus, J.), the Pennsylvania Superior Court affirmed the trial court’s decision that a Defendants’ consulting firm's report, which was prepared after an employee died in an industrial accident, was discoverable because the consulting firm was not hired, and their report was not prepared, in anticipation of litigation. 

According to the Opinion, after the decedent fell to his death while working at a plant, the Defendants retained a consulting firm five (5) days after the event to conduct a site safety investigation and determine the cause of the accident.

During the course of discovery, the Plaintiff became aware of the report and filed a Motion to Compel to secure the same. The Defendants argued that the report was prepared in anticipation of litigation and was, therefore, privileged. The Defendants asserted that the consulting firm was a non-testifying expert consultant and no exceptional circumstances existed to entitle the Plaintiff to access to the report.

The Plaintiff responded by arguing that it was the Defendants, and not the Defendant’s attorneys, who had hired the consulting firm. The Plaintiffs also asserted that the report by the consulting firm had not been prepared in anticipation of litigation.

The Defendants had also filed a Motion for a Protective Order in response to the Motion to Compel.

As noted, the Superior Court affirmed the trial court’s ruling that the report was discoverable.  The trial court had agreed that the consulting firm had not been retained in anticipation of litigation.  The appellate court agreed that it appeared from the record that the consulting firm had been retained for a business purpose, that is, to find the cause of the accident and to enable the Defendant to implement changes to prevent such accidents from reoccurring in the future.

The court ruled that the fact that litigation may have been foreseen did not, in and of itself, support a ruling that the discovery should be precluded.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 2, 2021).





Monday, April 19, 2021

Court Excuses Delays Related to COVID-19 Pandemic With Respect to Completion of Service of Process



In the case of Pasquariello v. Manwiller, No. C-48-CV-2020-00607 (C.P. North. Co. Jan. 11, 2021 Murray, J.), the court denied a Defendant’s Preliminary Objections against the Plaintiff’s Complaint in which the Defendants asserted a lack of personal jurisdiction based upon untimely service.

The court rejected the Defendant’s contention that the Plaintiffs had stalled the legal machinery that they had set in motion by way of the filing of the lawsuit. Rather, the court found that the Plaintiffs had made a good faith effort to complete service.

The court emphasized that, when the Plaintiff filed a Writ of Summons, the Plaintiffs sent a copy of the Writ to the claims adjuster for the Defendant’s carrier and inquired whether the carrier would accept service in order to avoid expenses to the Defendants (and the Plaintiffs). This request was rejected by the carrier.

The court also noted that, around the time of this request, the COVID-19 pandemic shut down the normal operations of the Sheriff’s Departments throughout the Commonwealth of Pennsylvania.

The record confirmed that the Plaintiff had reissued the Writ of Summons as soon as the local Sheriff’s Office reopened.

The court found that the delay in service was due to the pandemic and not because the Plaintiff had stalled the legal machinery that had been set in motion.

It was noted, however, that the Plaintiff had failed to complete service within the time allowed. As such, in its decision, the court required the Plaintiff to file a Praecipe to Reinstate the Writ and to serve the Defendants within thirty (30) days from the date of the reinstatement.

The court also addressed other Preliminary Objections in this case.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 23, 2021).

Friday, April 16, 2021

U.S. Supreme Court Latest Pronouncement on Personal Jurisdiction Over Out-of-State Defendants In a Products Liability Case


United States Supreme Court

The United States Supreme Court recently issued a notable decision in the case of Ford Motor Co. v. Montana Eighth Judicial District Court, No. 19-368 (U.S. March 25, 2021), in which the Court affirmed a decision finding the existence of personal jurisdiction over products liability claims by an in-state plaintiff for in-state injuries against an out-of-state defendant.

Defendant Ford had sought to extend the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), which rejected personal jurisdiction over claims by out-of-state plaintiffs against out-of-state defendants for out-of-state injuries.

Ford asserted that, under the Bristol-Myers analysis, specific jurisdiction requiresd a “causal link” between the defendant’s forum contacts and the plaintiff’s claims, which was not present in this Ford case because the cars involved in the accidents were not designed, manufactured, or first sold in-state.

The five-justice majority disagreed.  The majority rejected a strict causal link standard and distinguishing the forum-shopping circumstances of Bristol-Myers from the claims in Ford by in-state plaintiffs for in-state injuries. The majority held that the Court’s specific jurisdiction standard includes suits that sufficiently “relate to” a defendant’s forum contacts, even in the absence of a causal link.

Applying this standard to the two cases before it, the majority held that Ford’s activities in Montana and Minnesota, including marketing, selling, and servicing the same models of cars at issue in the cases, enticed residents to purchase Ford cars and, as such, were sufficiently related to the plaintiffs’ claims to create specific jurisdiction over their suits. The Court held: “Ford had systematically served a market in Montana and Minnesota for the very vehicles that the plaintiffs allege malfunctioned and injured them in those States. So there is a strong ‘relationship among the defendant, the forum, and the litigation,’—the ‘essential foundation’ of specific jurisdiction.”

Commentators have noted that now, following the Ford decision, it appears that a defendant’s showing that a plaintiff’s claim does not arise out of or is not causally linked to the defendant’s conduct in the forum state may not be enough to prevail on a defense argument that a court lacks personal jurisdiction if a plaintiff can show that the claim sufficiently “relates to” the defendant’s conduct in the state.

Commentators have also noted that the Bristol-Myers analysis still also stands.  Those commentators have asserted that the Ford decision does not disturb the U.S. Supreme Court’s previous rejection in Bristol-Myers of specific jurisdiction over claims by non-resident plaintiffs against a non-resident company whose product allegedly injured the plaintiffs. 

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Dale Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP for bringing this decision to my attention.

Thursday, April 15, 2021

Pennsylvania Superior Court Addresses Claims of Corporate Negligence in a Medical Malpractice Case

 

In the case Ruff v. York Hospital, 2021 Pa. Super. 39 (Pa. Super. March 11, 2021 Shogan, J., Stabile, J., and Murray, J.) (Op. by. Shogan, J.), the court affirmed the lower court's denial of a Plaintiff’s post-trial motions in a medical malpractice case in which a defense verdict was entered. In so ruling, the Pennsylvania Superior Court touched upon a number of different issues pertinent to medical malpractice cases.

The Superior Court emphasized that, in the context of a medical malpractice case, corporate negligence is a doctrine under which a hospital owes a direct duty to its patients to ensure their safety and well-being while the patients are in the hospital.

The Court noted that, in order to establish a claim of corporate negligence, the Plaintiff must show that the hospital had actual or constructive knowledge of the alleged defect or procedures that allegedly created the harm. The court noted that corporate negligence typically involves claims of systemic negligence in the actions and procedures of the hospital itself, rather than any individual acts of its employees.

The Court otherwise ruled that a hospital’s oversight duty does not require that the hospital direct or override a physician’s clinical judgment in any given case.

The Superior Court also found that the jury instructions utilized the trial court on corporate negligence, which conformed to the Suggested Standard Jury Instruction, were adequate.

On an evidentiary issue, the Superior Court ruled that the Plaintiff’s expert was properly allowed to reference a learned treatise as support for the expert’s opinions, but that the Plaintiff was properly precluded by the trial court from placing the learned treatise itself into evidence.

The Superior Court also found that the Plaintiff’s expert was properly precluded by the trial court from offering any opinion that the Defendant’s conduct was reckless. The Superior Court noted that, whether conduct was reckless was to be determined by the jury and was not a proper subject of expert testimony. In this regard, the court noted that expert witnesses are not permitted to render legal opinions and may not offer opinions on whether conduct complied with the law.

As stated, overall, the appellate court affirmed the trial court’s denial of the Plaintiff’s post-trial motions.

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


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

Wednesday, April 14, 2021

TORT TALK TIP

 


REMEMBER:  A week from today (i.e., April 21st) is Administrative Professional's Day.  Don't forget to thank those in your office who make your life easier.

Tuesday, April 13, 2021

Eastern District Court in Philadelphia Transfers Wal-Mart Slip and Fall Case to Middle District Court

In the case of Darrup v. Wal-Mart Stores East, LP, No. 2:20-CV-05450-JDW(E.D. Pa. Feb. 18, 2021 Wolson, J.), the court granted a Defendant store’s Motion to Transfer the Case from the Eastern District Federal Court in Philadelphia to the Middle District Court of Pennsylvania.

Judge Joshua D. Wolson began his Opinion by writing, "Philadelphia has much to recommend it. World class cuisine. Great universities. Gritty. But one thing that Philadelphia, and the Eastern District of Pennsylvania as a whole, lacks is any connection to this case."  See Op. at p. 1.

Judge Wolson noted that, in this case, the Plaintiff was "channel[ing] her inner W.C. Fields and argues she'd rather be in Philadelphia."  See Op. at p. 1.

According to the Opinion, the Plaintiff resided in Northumberland County and was alleging personal injuries as a result of a slip and fall that had allegedly occurred at a Wal-Mart store located in Northumberland County.  By the time the lawsuit was filed, the Plaintiff lived in Arizona and asserted that it would be more convenient for her to have to travel to Philadelphia for the litigation as opposed to a courthourse located in the Middle District of Pennsylvania.

The court found that everything about this case happened in the Middle District of Pennsylvania except for the Plaintiff filing suit in the Eastern District Court in Philadelphia.

The court noted that all of the relevant witnesses were located within the Middle District of Pennsylvania.

The court stated that, when a Plaintiff’s choice of forum has little or no connection to the operative facts of the case and, where the Plaintiff lives outside of the chosen forum, that Plaintiff’s choice of forum should receive little weight.

As stated, the court granted a Motion to Transfer the case up to the Middle District of Pennsylvania.

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

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


Pennsylvania Superior Court Reverses Trial Court Decision to Transfer Venue of a Products Liability Case Out of Philadelphia County


In the case of Hangey v. Husqvarna Professional Products, Inc., No. 3296 EDA 2017 (Pa. Super. March 8, 2021) (en banc), the court reversed the trial court’s granting of Preliminary Objections on venue issues.

The court found that it was an abuse of discretion to change venue out of Philadelphia based solely on the Defendant conducting only de minimis business in that county.

The Superior Court noted that “regular” conduct of business does not mean “principal,” and a Defendant may perform acts regularly even though such acts are only a small part of its total activities.

On the venue question, the courts must determine whether the evidence, including the scope of the Defendant’s business, established that a Defendant’s contacts with the venue satisfied the quantity prong of the quality/quantity test.

The Pennsylvania Superior Court noted that the number and dollar figure of sales by the Defendant in Philadelphia, and the fact that the Defendant has an authorized dealer in Philadelphia to sell its products, is relevant to the determination of whether its contacts with Philadelphia satisfy the “quantity” prong of the venue analysis. The court additionally stated that he percentage of sales of a corporation in a venue is only one factor to be considered under this analysis.

Anyone wishing to review a copy of this Majority Opinion of this decision may click this LINK.  The Dissenting Opinion by Judge Stabile can be viewed HERE


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

Friday, April 9, 2021

Cummins Mediation Services Can Help Bring Your Case to a Close

 

(570) 319-5899

DanCummins@CumminsLaw.net

Federal Court Addresses Validity of Direct Claims of Liability Asserted Against Trucking Company


In the case of Miller v. M.H. Malueg Trucking, Co., LLC, No. 2:20-CV-00413-RJC (W.D. Pa. March 8, 2021 Colville, J.), the court granted a Defendant trucking company’s Motion to Dismiss a Plaintiff’s direct negligence claim against the trucking company arising out of a motor vehicle accident after the court found that the Plaintiff had conceded that she had not pled facts sufficient to support a claim for punitive damages that could serve as the predicate for a direct negligence claim against that trucking company.

The court noted that the parties had previously filed a Stipulation agreeing that the Defendant driver was an agent of the Defendant trucking company.

The Plaintiff had alleged in her Complaint that the Defendant trucking company was vicariously liable for the driver’s negligence and was also liable for negligent hiring, training, monitoring, and supervising the driver, for failing to ensure PennDOT regulations were followed, and was also negligent for failing to maintain a proper driver safety program for its drivers.

The Defendant moved to dismiss all direct claims of liability and did not move to dismiss the vicarious liability count.

Citing the case of Sterner v. Titus Transp., 2013 WL 6506591 (M.D. Pa. 2013)[other citations omitted], the court held in this Miller case that the claims of direct corporate negligence was subject to dismissal when the agency relationship was admitted and when the Plaintiff had not pled a basis for punitive damages.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 25, 2021).

Wednesday, April 7, 2021

Jurisdiction Challenge Rejected Given that Defendant Company Was Registered in Pennsylvania as of the Date the Claim Was Filed


In the exposure to asbestos case of Data v. AO Smith Corp., No. 2:19-CV-00879-CRE (W.D. Pa. Feb. 11, 2021 Eddy, Mag. J.), a federal magistrate judge issued a Report and Recommendation it which it was recommended that the District Court deny a Defendant’s Motion to Dismiss the case based upon jurisdictional arguments.

The court ruled that Pennsylvania’s statute imposes general jurisdiction on all companies registering to do business in Pennsylvania is constitutional.

Notably, the court ruled that jurisdiction exists over a Defendant even for causes of action that arose prior to Defendant's registration in Pennsylvania as a foreign company so long as the corporation is so registered as of the time the lawsuit is filed.

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


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

Friday, April 2, 2021

Snow/Ice is Not On/Of Real Estate for Real Estate Exception to Sovereign Immunity to Apply


Judgment was entered in favor of the Defendant in the case of Temple v. Housing Auth. of City of Meadville, No. AD 2020-243 (C.P. Crawford, Co. March 18, 2021 St. John, S.J.), which involved a slip and fall incident due to wintry conditions on the property of the Housing Authority of the City of Meadville. 

The Plaintiff allegedly fell on a driveway in her aunt’s housing complex due to snow that had allegedly come upon the driveway after being blown there by a snowblower operated by an employee of the Defendant.

The Housing Authority moved for summary judgment on the grounds that, as a Commonwealth of Pennsylvania agency, it had immunity from any tort claims under the Sovereign Immunity Act.

The Court emphasized within the opinion that the Plaintiff had conceded that the Housing Authority qualified as a Commonwealth entity and that the Sovereign Immunity Act, 42 Pa.C.S.A. Section 8521, et seq., applied.

The Plaintiff attempted to have this case read as falling under the real estate exception to immunity for the Defendant.

The Court analyzed the “on/of” distinction  under the real estate exception under the Sovereign Immunity Act as it related to snow and ice that had accumulated on the Housing Authority’s property. 

The Court noted that the case law of Pennsylvania has not interpreted the language of the Act regarding a “dangerous condition of Commonwealth agency real estate” to include substances, like ice or snow, that were merely lying on the real estate. The Court noted that the inapplicability of the real estate exception was the same even if the snow came upon the surface by being thrown there by a snowblower operated by an employee.

Ultimately, the Court determined the Plaintiff offered no facts that could prove that the snow and ice derived, originated from, or had the Commonwealth realty as its source.  Accordingly, the real estate exception to the immunity provided by the Act was found not to be implicated by the facts of the accident.

As a result, the Court ruled the Plaintiff’s claims and evidence were insufficient to abrogate the Housing Authority’s immunity under the Sovereign Immunity act.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Brian J. Murren and Attorney Jon McAnney of the Lemoyne, PA law firm of Tucker Arensberg, P.C. for bringing this case to my attention.

Save The Date: Lackawanna Pro Bono Golf Tournament


 

Wednesday, March 31, 2021

A Primer on Attorney Conduct At Depositions



A hotly debated issue in medical malpractice litigation over the past decade has been whether a defendant-physician can (1) refuse to answer standard of care questions or medical opinion questions or respond to requests to conduct a retrospective review of his/her own care so long as [s]he agrees not to testify as to those matters at trial (Allegheny County Judge R. Stanton Wettick (ret.) approach) or (2) can be compelled to answer deposition inquiries regarding standard of care, medical opinion, and/or retrospective review of care (Lackawanna County Judge Terrence R. Nealon approach).

In an Opinion issued earlier this week in the medical malpractice case of Lau v. Allegheny Health Network, G.D. 18 - 011924 (C.P. Allegh. Co. March 30, 2021 Ignelzi, J.), the Motions Court Judge in Allegheny County, Judge Phillip Ignelzi, abrogated the Judge Wettick approach for Allegheny County moving forward and adopted Judge Nealon’s approach as enunciated in Karim v. Reedy, 53 Pa. D. & C.5th 335 (Lacka. Co. 2016)(click this LINK to view that case) and Howarth-Gadomski v. Henzes, 2019 WL 6354235 (Lacka. Co. 2019)(click this LINK to view that case).

Judge Ignelzi held in Lau that defendant-physicians must now answer questions regarding standard of care, medical opinion, and/or retrospective review of care during their discovery depositions.

The decision is also notable for its instruction on the proper conduct of counsel during discovery, including at depositions. Judge Ignelzi frowned upon speaking objections and instructions by counsel to a witness not to answer a question.

The Court in Lau noted that an attorney should not instruct a witness not to answer a deposition question “unless counsel has objected on the ground that the answer is protected by privilege or a limitation on evidence directed by the Court.” See Op. at p. 33.

Judge Ignelzi adopted Lackawanna County Local Rule of Civil Procedure 4007.1(a), that states that counsel making an objection at a deposition shall state the word “objection,” and briefly state the legal basis for the objection without argument. See Op. at p. 30.

The Court also provides guidance on what types of deposition questions can be properly the subject of “objections to the form of the question,” and confirms that if such objections are not made during the course of a deposition, such objections to the form are considered to be waived under Pa.R.C.P. 4016(c).

More specifically, the Court found that deposition questions that are properly the subject to objections to the form of the question include “compound questions, questions that are ambiguous, unintelligible, misstatements of evidence or testimony, argumentative, assuming facts not in evidence, calling for speculation and deponent answers that are non-responsive.” See Op. at p. 29-30.

Anyone wishing to review this decision may click this LINK.

Motion to Stay Civil Case Pending Resolution of Criminal Case Granted


A Motion to Stay a civil matter pending the resolution of a criminal investigation and charges was granted in the Federal Middle District court case of Doe v. City of Scranton, No. 3:20-490 (M.D. Pa. March 18, 2021 Mannion, J.).

According to the Opinion, the Defendant allegedly used his position as a police officer to coerce sex from woman he used as confidential informants in drug cases he was investigating.

This civil case is proceeding while the companion criminal charges are being investigated.  The court noted that there is an alleged expectation that criminal charges will be filed against the Defendant.

Based upon the court’s review of the Motion to Stay and related materials, Judge Mannion granted the motion and the case was stayed.

The court noted that, in federal court, the decision to stay a case is within the sound discretion of the trial court judge.  Judge Mannion went on to review the six factors to be considered and, in the end, allowed for the stay of the civil matter as requested by the Defendant.

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

Tuesday, March 30, 2021

ABINGTON HEIGHTS HIGH SCHOOL MOCK TRIAL TEAM WINS STATE CHAMPIONSHIP

THE ABINGTON HEIGHTS HIGH SCHOOL MOCK TRIAL TEAM (from Clarks Summit, PA) WON STATE CHAMPIONSHIP LAST NIGHT!!



(See video below of the announcement of the State Champion)

So proud of all the bright, respectful, determined students that made up this team.  So impressed with the dedication of their Teacher Coach Len Romanski.  I helped out as the team's Attorney Advisor.  The team was undefeated throughout the competition, going 9-0.

Thank you to Principal Andrew Snyder and Abington Heights High School for promoting the Mock Trial Program.

Sending great thanks also to the Young Lawyers Division of the Pennsylvania Bar Association for running a great virtual 2021 Mock Trial Season and to all of the volunteers who served as Judges and Jurors throughout the competition. Also send thanks to the Lackawanna Bar Association for running a great District Competition and the Monroe Bar Association for running a great Regional Competition.



Here is a list of team members of the 2021 State Champion Abington Heights High School Mock Trial Team:

Seniors: Noelle Prisco,  Eric Schuster,  Julia LaCoe, Maddie Lucas, Evan Pallis

Juniors: Adam Tinkelman, Aiden Snyder

Sophomores: Faith Bennett, Michael Cummins, Reenad Khan, Chloe Levasseur

Freshmen: Maddie Herold, Dane Huggler, Aidan Lam, William Newton, Thomas Russini, Noor Rutty

Here's a LINK the March 30, 2021 article from the Scranton Times on the Win.  That's my son, Michael Cummins, in the center of the photo with the grey mask on.  Proud to note that he excelled during the Competition, winning a Best Witness Award six (6) times in six Trials.

Pennsylvania Superior Court Reviews Admissibility of Expert Testimony Based Upon Methodology Behind Opinion



The Pennsylvania Superior Court recently issued a notable decision regarding the admissibility of expert testimony in the case of In the Interest of: M.R., a minor, 2021 Pa. Super. 30 (Pa. Super. March 1, 2021 Bender, P.J.E., Olson, J., and King, J.) (Op. by Bender, J.).

Although this is not a tort case, and involves issues regarding child abuse, the law regarding the admissibility of expert opinions set forth in this decision would likely also apply in civil litigation matters.

At issue in this case was whether the trial court erred and abused its discretion by admitting the testimony of the parents’ expert witness who offered an opinion that metabolic bone disease of infancy (also known as temporary brittle bone disease) was the cause of the twin children’s multiple fractures and not any abuse.

In reviewing the issue of admissibility of the expert’s opinion, the court reviewed Pennsylvania Rule of Evidence 702 and the case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

The court noted that, under Pennsylvania Rule of Evidence 702, which controls the admissibility of expert testimony, one of the requirements for the admission of an expert’s opinion is that the expert’s methodology is generally accepted in the relevant field. This is commonly referred to as the Frye test.

The court noted that the Frye test is limited to an inquiry into whether the methodologies by which the scientist had reached his or her conclusions have been generally accepted in the scientific community. 

The court noted that this test restricts the admission of scientific evidence to that evidence that has resulted from scientific research which has been deemed to be generally recognized as sound research as opposed to the “fanciful creations of a renegade researcher.” [citation omitted].   However, the test is not so restrictive that it does not allow for a scientist to testify as to new conclusions which have emerged during the course of properly conducted research.

Under this test, the proponent of the admission of expert scientific evidence bears the burden of establishing all of the elements supporting its admission, including the general acceptance of a methodology that has actually been employed in the relevant scientific community.

The Pennsylvania Superior Court emphasized that the law of Pennsylvania is that the question of whether a methodology is generally accepted in the relevant scientific community is a determination that is to be made based upon the testimony of scientists in that community and not upon any alleged scientific expertise of the trial court judge. Rather, the Frye test assures that judges will be guided by scientists when assessing the reliability of a scientific method.

As such, under the analysis to be applied in determining whether to admit an expert's opinion, it is the trial court’s function to ensure that the expert has applied a generally accepted scientific methodology to reach his or her scientific conclusions. To fulfill this function, the trial court must be guided by scientists in the relevant field, including the experts retained the parties in the case and any other evidence of general acceptance presented by the parties.  For example, a reference to the methodology in textbooks, scientific publications, studies, statistics, expert testimony, or in other judicial opinions on the issue, or a combination of these sources, can support the admission of an opinion.

The Superior Court cautioned that the trial court may consider only whether the expert applied methodology generally accepted in the relevant field, and the trial court may not go further and attempt to determine whether or not it agrees with the expert’s application of those methodologies and/or whether the expert’s conclusions have sufficient factual support.  Rather, those questions are for a jury to decide.

In setting forth this law, the Pennsylvania Superior Court in this case quoted extensively from the recent Pennsylvania Supreme Court decision in the case of Walsh Estate of Walsh v. BASF Corp., 234 A.3d 446, 456 (Pa. 2020).

In the end, the Pennsylvania Superior Court found that the trial court had abused its discretion by admitting the testimony of the expert in this child abuse case.

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


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

Monday, March 29, 2021

Post-Trial Motions Denied in Lackawanna County Fatal Boating Accident Case

 
In the case of Loomis v. Bomba, No. 18-CV-930 (C.P. Lacka. Co. March 12, 2021 Nealon, J.), the court addressed a number of post-trial motions filed by a Plaintiff after a defense verdict was entered in a boating fatality litigation.

In the end, after review of the record before it, the court noted that, as the ultimate triers of fact and the judges of credibility, the jury was free to accept or reject the witnesses presented.  The jury’s verdict was found to be not so contrary to the evidence as to shock one’s sense of justice.

With regards to the Plaintiff’s objection that the investigating State Trooper allegedly violated the hearsay rule by referring to a statement that he obtained from a non-testifying witness, the court found that the Trooper’s reference to this statement was permitted to explain his course of conduct in the investigation, rather than any admission of hearsay statement for the truth of the matter asserted. The judge additionally emphasized that he had provided the jury with a cautionary instruction advising the jury that the statement could only be considered for the limited purpose for which it was admitted.

Judge Nealon also rejected any contention by the Plaintiff that his jury instructions were deficient in the court’s failure to charge the jury based upon certain information from a handbook published by the Pennsylvania Fish and Boat Commission. The court noted that the jury was provided by appropriate instructions regarding a boat operator’s duties of care under the Fish and Boat Code as well as under the regulations promulgated by the Fish and Boat Commission. Judge Nealon otherwise noted that the jury instruction charged, as a whole, was not inadequate, unclear, misleading, or confusion. He also noted that the instructions did not omit any basic or fundamental principals of law.

Anyone wishing to review this Opinion may click this LINK.

Friday, March 26, 2021

PLEASE SAVE THE DATE -- JUNE 14, 2021

 


Employer Running Golf Tournament Found to Be Social Host Under Dram Shop Claim (Not Liable)


In the case of Klar v. Dairy Farmers of America, Inc., No. 10863 of 2015 (C.P. Lawr. Co. Jan. 15, 2021 Cox, J.), the court issued a Rule 1925 Opinion for appellate purposes with regards to the trial court’s granting of a Motion for Judgment on the Pleadings against the Plaintiff and in favor of an employer in a case in which the court ruled that an employer who collects contributions for a social event was still considered to a social host with respect to any liability claims under the Dram Shop Act. Based upon this ruling, the trial court dismissed the Plaintiff’s negligence claims against the employer.

According to the Opinion, the Pennsylvania was injured in a motor vehicle accident when the vehicle operated by the Defendant driver struck the Plaintiff’s motorcycle.

The Defendant driver was an employee of Dairy Farmers of America. That employer had sponsored a golf outing and encouraged its employees to attend. The employees made a monetary contribution to offset the cost of the greens fees, food, and alcohol. After collecting the contributions from the employees, the employer paid for the event in its entirety.

The Plaintiff alleged that, at the event, the Defendant driver consumed an amount of alcohol that raised his blood alcohol level beyond the legal limit. The Defendant driver then proceeded to drive and was involved in the accident with the Plaintiff.

The Plaintiff sued the Defendant driver as well as his employer under negligence claims. The employer filed a Motion for Judgment on the Pleadings arguing that it was not liable under the Dram Shop Act because it was a social host.

In this matter, the court followed Pennsylvania law in which other courts had declined to impose liability on non-licensed person who furnished alcohol to individuals for no renumeration. The court ruled that, in order for the Plaintiff to hold the employer liable in this situation, the Plaintiff was required to show that the employer was a person “selling” liquor.

Here, the court noted that the alcohol expense was only a portion of the expenses that the employer paid for the gold event.

While the court recognized that, under case law pertaining to the collective purchase of alcohol, social hosts could be employers or other entities as well as individuals. The court noted that, under Pennsylvania law, social host status did not disappear because the furnishing of alcohol was collective rather than gratuitous.

However, in this matter, the court held that the payment of a fee to defer the costs of the gold outing, with alcohol being only an incidental part of the fee and without any other evidence of the commercial sale of liquor, did not support a claim for either common law negligence or negligence per se against the employer.

As such, in this Rule 1925 Opinion, the trial court requested that the appellate court uphold the trial court’s decision dismissing the Plaintiff's negligence claim against the employer.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 3, 2021).

Thursday, March 25, 2021

Pennsylvania Supreme Court's Latest Pronouncement on Service of Process Issues



In the case of Gussom v. Teagle, No. 12 EAP 2020 (Pa. March 25, 2021)(Maj. Op. by Baer, J.)(Wecht, J., Dissenting), the Pennsylvania Supreme Court addressed the Lamp v. Heyman line of cases regarding the completion of service of original process. This issue was last addressed by the Pennsylvania Supreme Court in the McCreesh case back 16 years ago back in 2005. Notably, Justice Max Baer had also issued the McCreesh decision.

In this new decision in Gussom, the Court reviewed the long line of precedent on the issue of whether a lawsuit should be dismissed due to a plaintiff’s failure to engage in a good faith effort to complete service and thereby demonstrating an intent to stall the judicial machinery he or she had initiated.

In Gussom, the Superior Court affirmed a trial court order that dismissed a plaintiff’s Complaint based upon a plaintiff’s failure to timely serve her Complaint and the case was dismissed despite the fact that the plaintiff’s actions did not amount to intentional conduct. See Op. at p. 2.

The Pennsylvania Supreme Court affirmed the rulings of the Superior Court and the trial court thereby dismissing the plaintiff's complaint with prejudice. In so ruling, the Pennsylvania Supreme Court confirmed that the standard of review in this context did not require a finding of intent on the part of the plaintiff or prejudice to the defendant under the analysis develop through Lamp v. Heyman and its progeny.

The standard set out by the Pennsylvania Supreme Court in Gussom is that a plaintiff must make a good faith effort to diligently and timely serve original process upon a defendant. If plaintiff puts forth credible evidence that they made this attempt, then the requirement is fulfilled. “If a plaintiff does not present such evidence, then she has failed to satisfy her evidentiary burden, regardless of whether her actions (or inaction) were intentional, unintentional or otherwise.” See Op. at p. 17.

The Gussom Court held that “a trial court has the discretion to dismiss a complaint when a plaintiff fails to offer proof that she diligently attempted to serve process on a defendant in a timely manner and there is no evidence to indicate that the defendant had actual notice of the commencement of the action in the relevant time frame, regardless of whether the plaintiff acted or failed to act intentionally.” See Op. at p. 3.

The dissent, written by Justice David N. Wecht, would have overturned the Superior Court’s ruling. The dissent felt that the standard should be intent based and should also require the defendant to show prejudice.

The Majority Opinion in Gussom can be viewed HERE.  The Dissenting Opinion can be viewed HERE.


I send thanks to Attorney Joseph B Mayers of the Mayers Firm, LLC in Plymouth Meeting, PA for bringing this case to my attention.
 

Carrier's Denial of Claim for Business Interruption Coverage Upheld



In the case Isaac’s At Spring Ridge, LLP v. MMG Ins. Co., No. CI-20-03613 (C.P. Lanc. Co. March 2, 2021 Sponaugle, J.), the court issued an Order granting the carrier’s Motion for Judgment on the Pleadings in a coverage action arising out of the Plaintiff’s claim of business income losses under an all-risk commercial property policy involving a restaurant that was forced to modify, but not close, its operation due to the Commonwealth’s COVID-19 Orders.

In so ruling, the court relied, in part, upon a virus exclusion contained in the policy.

The court also found that the civil authority coverage requirements under the policy were not met.

The court also noted that the Plaintiff did not suffer any direct physical loss or damage to its premises in order to meet the requirements of another policy provider for coverage.

Anyone wishing to review this detailed Order without Opinion issued by the Court may click this LINK.


I send thanks to Attorney Peter J. Speaker of the Harrisburg, PA office of the law firm of Thomas, Thomas & Hafer, LLP for bringing this case to my attention.

Tuesday, March 23, 2021

Corrected Link to Fair Share Act Decision by the Pennsylvania Superior Court


Here is a corrected LINK to the Fair Share Act decision highlighted in yesterday's Tort Talk blog post, that being the case of Spencer v. Johnson, 2021 Pa. Super. 48 (Pa. Super. March 18, 2021 Panella, P.J., McLaughlin, J., McCaffery, J.)(Op. by Panella, P.J.).

I apologize for any confusion or consternation.





The Pennsylvania Superior Court Issues a Largely Advisory Opinion on the Fair Share Act


Navigating the Fair Share Act


The Pennsylvania Superior Court recently issued a notable decision with respect to the Fair Share Act. Although wordy and filled with dicta, and  the decision warrants a read-through for its review of the Act.

In the case of Spencer v. Johnson, 2021 Pa. Super. 48 (Pa. Super. March 18, 2021 Panella, P.J., McLaughlin, J., McCaffery, J.)(Op. by Panella, P.J.), a plaintiff pedestrian alleged personal injuries as a result of being struck by a vehicle operated by an individual who was driving his wife's company car while allegedly under the influence of alcohol.

In the Complaint, the plaintiff alleged negligence by the driver and various negligent entrustment type claims against the defendant driver's wife and the company that owned the car.

The jury handed down a verdict in favor of the Plaintiff in the amount that was just shy of $13 million dollars. The jury assessed comparative negligence, as follows:

Defendant driver: 36%

Wife: 19%

Company: 45%

With regards to the application of the Fair Share Act, the court held that the Defendant Company that owned the company car that the Defendant driver was driving was jointly and severally liable for the entire award because the 19% liability of the wife should be added to the 45% of the company under a vicarious liability theory, which put the Company at a percentage over the 60% limit of the Fair Share Act for holding a defendant jointly and severally liable.

In other words, the appellate court accepted the Plaintiff's argument that the wife's negligence should be imputed to the Company's negligence because the wife-employee was acting within the scope and course of her employment with the Company at the time of the accident. As such, the Court accepted the Plaintiff's argument that the Company should be held to be vicariously liable for the wife's alleged negligence. The Superior Court reversed and remanded the case to the trial court for further proceedings with regard to a molding of the verdict.

The Superior Court also went on to note that, assuming for the sake of argument, that the Company was not vicariously liable for the action of the wife and those defendants were instead required to be treated separately, the Fair Share Act would not have applied because the Act only applies to cases in which the plaintiff’s comparative negligence is an issue in the case. See Op. beginning on p. 48.  

Some read this portion of the Opinion to suggest that, where there is no finding of comparative negligence on the Plaintiff, the Fair Share Act does not apply and the case reverts back to the old joint and several law under which a Plaintiff could recover the verdict against any defendants that are jointly and severally liable regardless of their percentage of liability assessed by the jury, i.e., a return to the days where a defendant could be made to pay the entire verdict even if that defendant was only found to be 1% responsible.

This part of the Opinion appears to be dicta and may be considered to be more in the form of an advisory opinion by the Superior Court on the scope and reach of the Fair Share Act.  Regardless, the Court has voiced an opinion on this issue that may be heeded by other courts in the future at least as guidance on the question presented.

Anyone wishing to review this decision may click this LINK.


I send thanks to Attorney Peter J. Faben of the Lancaster, PA law firm of Barley Snyder for bringing this case to my attention.

Volunteers Needed -- Will You Help (From the Comfort of Your Own Home)?

 

I am passing along the below email message I received from the Pennsylvania Bar Association. Please consider volunteering. I have modified the message a bit for emphasis. Thank you very much.


On behalf of the Pennsylvania Bar Association Young Lawyers Division, it is our pleasure to invite you to participate in the 2021 Statewide High School Mock Trial Competition. Like everything in our society, this year’s competition has been affected by the COVID-19 global health pandemic. To comply with social distancing requirements, the Mock Trial Executive Committee and volunteers across the state have operated this year’s competition virtually, providing students with some sense of normalcy has been a priority of ours throughout these crazy times. This year’s state championships will also take place virtually, via Zoom.

Now celebrating its 38th year, the Statewide Mock Trial Competition continues to thrive. What began with a few schools in the Philadelphia area has bloomed into a flourishing program involving over 300 teams and 3,000 high school students from across the Commonwealth. Students competing in the program work together, embracing the teamwork ideal, and prepare and try a legal case in court. Meanwhile, they hone their public speaking skills and learn valuable lessons about our legal system from the many volunteer lawyers participating in the competition. The State Competition will see the top 16 teams from around the state competing for the championship. This year’s State Champion earns the honor of competing virtually in the National Championships in Indiana later this spring.

The championship weekend begins with Rounds 1 and 2 on Friday, March 26 at 1:30 p.m. and 5:30 p.m. Round 3 is scheduled for Saturday, March 27 at 8:30 a.m. Because we have invited 16 teams this year, rather than our usual 14, we have also scheduled a potential playoff round for 1:00 p.m. on Saturday. This year’s Final Round is scheduled for Tuesday, March 30, 2021, at 4:30 p.m.

To SIGN UP TO SERVE AS A JUROR in this virtual event, please click Judging Panel Volunteer Form to submit your offer to serve and to note your availability.

Law related education programs – such as this – help prepare a future generation of our society. These programs not only showcase the importance of our judicial system, but also the role our profession plays in our society. On behalf of countless high school students across the Commonwealth, as well as the Young Lawyers that tirelessly work on this competition, we thank you for your time.
 

Monday, March 22, 2021

I Survived Picking a Jury In Person (And It Wasn't That Bad)

 


On Friday, March 19, 2021, I participated in a live, in-person jury selection while we are still in the midst of a (hopefully receding) COVID-19 pandemic.

The case was pending in the Luzerne County Court of Common Pleas.  I represented an out-of-possession landlord defendant in a dog bite case involving a dog that was not owned by the tenant on the lease and which dog bite did not even occur on the rental property.  Rather, the dog bite occurred a block away from the rental property.  The Plaintiff sued my client, the tenant, and also sued the tenant's son and the son's girlfriend who was listed on the dog license as the owner of the dog in question.  The Plaintiff was attempting to allege that the tenant's son and the dog lived at the rental property even though his mother, who was the tenant, denied this allegation.  But I digress.

Although the case was pending in the Luzerne County Court of Common Pleas, the jury selection actually took place at the beautiful new Jewish Community Center in Kingston, PA.  This Center is just down the same road where the law firm of Hourigan, Kluger & Quinn is located.  The Center is so new it did not even come up on my GPS which was one more thing to add to my anxiety as I drove down to Luzerne County in an effort to find out where my first live trial in over a year would begin.

If you have to pick a jury there, please call me and I will tell you how to get there if you are not sure.

In the time leading up to this trial, I was anxious and continually cursed at the thought at having to go through what would have been a 4-5 day trial.  Yet, as you will read, it all turned out to be fine.

Judge Lesa Gelb

At conferences prior to trial, the presiding judge, Judge Lesa Gelb, assured myself and Plaintiff's Attorneys, Katie Nealon and Ciarra DeNaples of Munley Law, that all pandemic safety precautions would be in place.  In addition to having jury selection in a separate larger space, Judge Gelb explained that the jurors would be spread out through the Courtroom in both the jury box and the gallery.

Cameras and TVs would be used in the courtroom to make sure that all jurors could easily see and hear the witnesses.  At least two of the witnesses were also going to be allowed to testify via Zoom from their homes due to their fears of attending trial in person given their own health issues or the fact that they cared for elderly family members.

Prior to trial, counsel was also given a sheet that listed COVID-19 related protocols that would be followed in terms of the presentation of exhibits at trial.  The Court encourage counsel to present as many of the exhibits as possible up on the big screen as opposed to by way of paper exchanges.  Another protocol required counsel to bring at least 12 copies of a particular exhibit if the exhibit was going to be produced to the jury so that one document would not have to be passed down through 12 people.

As stated, the jury selection proceedings took place offsite.  

On the morning of jury selection, everyone who came into the Jewish Community Center had to have a mask on and everyone had their temperature taken.

The voir dire took place in a large ballroom within the Center.  In that large ballroom there were counsel tables spread out along the long side of the room.  Between those tables, on a low elevated platform was a table for the Judge.  Next to that raised table, but on the floor was a table for the court reporter to work from.  All of these referenced tables, i.e., for the attorneys, the Judge, and the court reporter, were all in a row.

Spread out through the rest of the room in perpendicular fashion from the row of tables were 10 rows of 4 chairs for the jurors to sit in.  Each chair had a piece of paper with a large print number on it that they could raise when they had a response to any of the voir dire questions.

What was noticably missing were microphones.  For a hearing impaired person like myself who wears hearing aids and who reads lips to help him hear, the addition of microphones would be a welcome addition to voir dire proceedings in this setting in which people are spread out across a large area and their mouths are covered by masks.

As they arrived at the Center, the jurors were checked in out in the foyer and allowed to enter the room one at a time.  They came into the ballroom their numerical order, 1 through 40, and were immediately directed to their seat.  The process was orderly and well done by the courthouse staff and the sheriff's deputies.  The jurors seemed nervous, but not scared.

Although everyone was 6 feet part, it was still a bit leery to be in a room with over 50 other people present.

Prior to voir dire starting, the court held a conference of attorneys to address any objections with regards to the proposed voir dire questions.  This was done in an effort to make the voir dire more efficient.

Also, in part to avoid counsel having to move about the room when asking follow up questions, the court noted that the attorneys involved could ask the typical first round of questions of voir dire to the jurors.  The court and counsel would then mark down all of the positive responses based on which jurors held up their numbered card that they each had at their chair when they arrived.  After the first round of questions were asked by the Judge, Plaintiff's Counsel, and defense counsel, would retired to a smaller conference room and each juror who had answered positively would then be summoned to that side room to meet with the Judge and counsel for the follow-up "can you be fair and impartial" questions regarding all of the original questions they answered affirmatively.

Judge Gelb started the proceedings by giving great thanks to the jurors for appearing in response to their juror summons.  I was not privy to whether there were people who summoned but did not show up.  Judge Gelb also did her best to make sure the jurors were comfortable and felt safe.

The initial questioning went off without a hitch and then the Judge and counsel retired to the side conference room which was large as well and in which all could spread out a bit.  The Court and counsel got through more questioning of approximately three jurors before settlement talks commenced that resulted in a resolution of the case.

The Court and Counsel then all went back into the ballroom where the jurors were waiting and Judge Gelb announced that the case had been settled and then proceeded to again give great thanks to the jurors for showing up to honor their duty to serve as jurors.  Judge Gelb noted to the jurors that they were great Patriots in helping our jury system to work under still trying conditions.

The jurors were then asked to leave in an orderly and spread out fashion which they did.

And so, the lesson appears to be that, while the thought of having to go back into the courtrooms may give rise to anxious feelings, the Court and its staff and the Sheriff's Department, at least in Luzerne County, are doing all that they can to make sure that it is a safe and orderly event.

If anyone would like further feedback or information in this regard, please do not hesitate to contact me at dancummins@CumminsLaw.net

Validity of Household Exclusion Upheld in Third Circuit Court of Appeals Decision (Non-Precedential)


In a non-precedential decision that goes against the effort of the Pennsylvania Supreme Court in Gallagher v. GEICO across the board, the Third Circuit Court of Appeals issued a decision on Thursday in the case of Dunleavy v. Mid-Century Ins. Co., No. 10-2100 (3d Cir. March 18, 2021 Shwarz, J., Matey, J., Traxler, J.)(Op. by Shwarz, J.), in which the Third Circuit Court of Appeals held that the household exclusion was enforceable where it did not operate as an implied waiver of stacking.

The Court noted that its decision was marked as not precedential because it was not an Opinion of the full Third Circuit Court of Appeals.

In that case, the injured parties were riding a motorcycle, and were involved in an accident with an allegedly underinsured vehicle.

The motorcycle was insured by Progressive, but UIM coverage had been rejected outright.

Therefore, the claimants made a claim for UIM coverage under their separate personal automobile insurance policy issued by Mid-Century Insurance Company, which policy did not include the motorcycle on the schedule of covered vehicles.

The carrier denied the claim on the basis of the household exclusion contained in that policy.

The Third Circuit held that the household exclusion unambiguously excluded UIM coverage in this case.

The Court in Dunleavy noted in footnote 3 that the Plaintiff's reliance upon the Gallagher decision was "misplaced" as the issues in this case did not involve stacking, but rather involved issues of whether coverage should be allowed under a particular policy.  

The Court instead relied upon Eichelman v. Nationwide Ins. Co., 711 A.2d 1006 (Pa. 1998), to support its conclusion. 

More specifically, the Third Circuit stated in this Dunleavy case that, because UIM coverage had been waived on the policy covering the motorcycle, there was no UIM coverage upon which to “stack” the UIM coverage from the Mid-Century policy. Therefore, the Third Circuit ruled that since this case did not involve stacking, the matter was, therefore, distinguishable from Gallagher.

The Court also emphasized that the fact that the Plaintiff had not paid any premium for the coverage that was sought also supported the application of the exclusion.

As such, the Third Circuit in Dunleavy affirmed the District Court’s decision granting of the carrier’s Motion for Judgment on the Pleadings based upon a finding that the household exclusion in the carrier’s policy served to preclude coverage under the facts presented.

Anyone wishing to review the Third Circuit Court of Appeals non-precedential decision in the Dunleavy case may click this LINK.


I send thanks to a number of attorneys who brought this case to my attention. I send thanks to Attorney Benjamin P. Novak of the Lancaster, PA office of Fowler, Hirtzel, McNulty & Spaulding, LLP.  I also thank Attorney Patricia A. Monahan from the Pittsburgh office of Marshall Dennehey for noting this case to me.  I also send thanks in the same regards to Attorney Sara Richman of the Philadelphia law firm of Troutman Pepper for bringing this case to my attention.


Commentary:

Anyone wishing to review the Tort Talk Blog post on the Pennsylvania Supreme Court's previous decision in Gallagher v. GEICO, along with a link to that decision, can be viewed at this LINK.  The judicially activist Pennsylvania Supreme Court attempted to eradicate the household exclusion, which the Court asserted was "buried in an amendment" to the policy.

This decision in the Dunleavy by the Third Circuit Court of Appeals is yet another post-Gallagher decision that finds that the household exclusion remains valid in many factual scenarios despite the efforts of the Pennsylvania Supreme Court in Gallagher to render the exclusion unenforceable in any scenario.  See this LINK for some of those other household exclusion cases that chip away at the extent of the Gallagher decision and serve to limit the decision to its facts just as the Pennsylvania Supreme Court should have done under settled principles of standards of appellate review.

For additional issues with the Majority's decision in Gallagher, look no further than Justice David N. Wecht's cogent Dissenting Opinion in that decision.

Turning back to the Third Circuit's decision in Dunleavy, in its reference to the fact that the injured parties did not pay a premium for the extra coverage that they were seeking as constituting further support for the application of the household exclusion, the Dunleavy Court was also supporting the age old adage that you can't get something for nothing.  In other words, if the injured party did not pay a premium for the type of additional UIM coverage they are seeking, then they should not be able to recover it. 

The Pennsylvania Supreme Court has another opportunity to review the issues presented by the household exclusion in the case of Donovan v. State Farm.  It remains to be seen how they will rule in that case.





Thursday, March 18, 2021

Allegations of Recklessness Stricken From Complaint Regarding Head-On Collision



In the case of Hilferding v. Zinn, No. 2020-SU-002187 (C.P. York Co. March 5, 2021 Flannelly, J.), the court sustained in part and overruled in part the Defendant’s Preliminary Objections to a Plaintiff’s Complaint in a motor vehicle accident case.

Notably, the court sustained a Defendant’s objections the Plaintiff’s claims of recklessness or wantonness stated in the Complaint.

According to the Opinion, this matter arose out a tragic motor vehicle accident. In their Complaint, the Plaintiffs asserted that the injuries and damages sustained by the Plaintiff were the result of negligent, careless, wanton, and reckless manner in which the Defendant driver operated her motor vehicle. 

The Defendant filed Preliminary Objections, in part, arguing that the Plaintiff had failed to sufficiently pled a claim for wantonness or recklessness.

In the Complaint, the Plaintiff alleged that the Defendant driver left her lane of travel and struck the Plaintiff’s vehicle in a head-on fashion. There were no allegations of cell phone use or other aggravating factors set forth in the Plaintiff’s Complaint.

The Plaintiff asserted that they should be permitted to pled recklessness because, if they prevailed on this claim at trial, then the Defendant would be barred from raising the affirmative defense of contributory negligence at trial. The Plaintiffs also asserted that, under Pennsylvania law, although they were required to pled material facts in a Complaint, they should be allowed to generally plead allegations of intent, knowledge, and conditions of the mind. The Plaintiff contended that an allegation of recklessness is an allegation that the Defendant acted with recklessness indifference to the rights of others and, therefore, as an allegation of a condition of the mind, was allowed to be pled generally.

The Plaintiffs additionally asserted that, by failing to keep control of her car in order to stay in her own lane of travel, the Defendant driver created a high degree of risk of physical harm to another which, in the mind of the Plaintiff, constituted reckless behavior.

After reviewing Pennsylvania law regarding the standard for reckless conduct, the court noted that the standard required the Plaintiff to make a showing that goes beyond an allegation of negligence or even gross negligence.

Here, the Plaintiff alleged that the Defendant driver left her lane of travel, entered the Plaintiff’s lane of travel, and struck the Plaintiff’s vehicle in a head-on fashion due to the Defendant’s failure to keep alert and maintain a proper watch for the presence of other vehicles.  

The Court held that allegations that the Defendant driver failed to stay within her lane of travel while traveling at an unsafe speed did not rise to the level of recklessness or wantonness. Rather, these allegations were found only to constitute a showing of ordinary negligence.

As such, the court granted the Defendant’s Preliminary Objections to the Plaintiff’s allegations of wanton and reckless conduct. However, the Plaintiff was granted the right to amend the Complaint if the Plaintiff desired to attempt to state a valid claim of recklessness in an Amended Complaint.

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


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

Wednesday, March 17, 2021

Volunteers Needed for 2021 Statewide High School Mock Trial Competition (To Be Held Virtually on March 26, 27, and 30th )


I am passing along the below email message I received from the Pennsylvania Bar Association. Please consider volunteering. I have modified the message a bit for emphasis. Thank you very much.


On behalf of the Pennsylvania Bar Association Young Lawyers Division, it is our pleasure to invite you to participate in the 2021 Statewide High School Mock Trial Competition. Like everything in our society, this year’s competition has been affected by the COVID-19 global health pandemic. To comply with social distancing requirements, the Mock Trial Executive Committee and volunteers across the state have operated this year’s competition virtually, providing students with some sense of normalcy has been a priority of ours throughout these crazy times. This year’s state championships will also take place virtually, via Zoom.

Now celebrating its 38th year, the Statewide Mock Trial Competition continues to thrive. What began with a few schools in the Philadelphia area has bloomed into a flourishing program involving over 300 teams and 3,000 high school students from across the Commonwealth. Students competing in the program work together, embracing the teamwork ideal, and prepare and try a legal case in court. Meanwhile, they hone their public speaking skills and learn valuable lessons about our legal system from the many volunteer lawyers participating in the competition. The State Competition will see the top 16 teams from around the state competing for the championship. This year’s State Champion earns the honor of competing virtually in the National Championships in Indiana later this spring.

The championship weekend begins with Rounds 1 and 2 on Friday, March 26 at 1:30 p.m. and 5:30 p.m. Round 3 is scheduled for Saturday, March 27 at 8:30 a.m. Because we have invited 16 teams this year, rather than our usual 14, we have also scheduled a potential playoff round for 1:00 p.m. on Saturday. This year’s Final Round is scheduled for Tuesday, March 30, 2021, at 4:30 p.m.

To SIGN UP TO SERVE AS A JUROR in this virtual event, please click Judging Panel Volunteer Form to submit your offer to serve and to note your availability.

Law related education programs – such as this – help prepare a future generation of our society. These programs not only showcase the importance of our judicial system, but also the role our profession plays in our society. On behalf of countless high school students across the Commonwealth, as well as the Young Lawyers that tirelessly work on this competition, we thank you for your time.
 

SAVE THE DATE -- JUNE 14, 2021 -- LACKAWANNA PRO BONO GOLF TOURNAMENT


 

Tuesday, March 16, 2021

Constitutional Challenge to Medical Malpractice Venue Rules Rejected


In the case of Dockery v. Thomas Jefferson University Hospitals, Inc., No. 611 EDA 2020 (Pa. Super. Feb. 22, 2021 Kunselman, J., Nicholas, J., and Pellegrini, J.) (Op. by Kunselman, J.), the Pennsylvania Superior Court ruled that an Equal Protection challenge to the medical malpractice venue statute failed where the Plaintiff failed to demonstrate that the Legislature and the courts lacked any legitimate interest in restricting venue in medical malpractice matters to the county where the cause of action arose.

According to the Opinion, the Plaintiff filed her Complaint in Philadelphia County even though the underlying alleged conduct had occurred in Delaware County. 

The Defendants filed Preliminary Objections and the case came before the court. The Plaintiff responded to the Preliminary Objections by asserting that the statute and the rules regarding venue were unconstitutional.

The trial court had rejected the Plaintiff’s argument and sustained the Preliminary Objections and transferred the case to Delaware County.  As noted, on appeal, the Pennsylvania Superior Court affirmed the trial court’s decision in this matter.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 9, 2021).

Insured Loses Fight for Coverage for a Fight

In the case of State Farm Fire and Cas. Co. v. Simone, No. 2:20-CV-00908-RJC (W.D.P. Jan. 28,2021 Colville, J.) County Court addressed a Motion for Judgment on the Pleadings filed by the liability insurance company seeking a declaratory judgment that the carrier did not have a duty to defend or indemnify the defendant with respect to allegations set forth in an underlying complaint arising out of an altercation during which the insured punched the injured party after they bumped into one another on a walkway at a crowded concert. 

After comparing the allegations in the Plaintiff’s complaint against the terms of the policy in question, the court ruled that the allegations in the complaint described a willful physical assault and an intentional tort for which there was no coverage under the policy. 


As such, the carrier’s motion for judgment on the pleadings was granted.


Anyone wishing to review this decision may click this LINK.