Thursday, February 25, 2021

Failure to Meet Six Month Notice Requirement under PSTCA Not Always Fatal to the Case

In the case of Ohler v. Fayette County Area Voc.-Tech Sch., No. 135 of 2019 G.D. (C.P. Fayette Co. April 27, 2020 Cordaro, J.), the court denied a school’s Motion for Judgment on the Pleadings in a personal injury matter in which the school asserted immunity under the Political Subdivision Tort Claims Act.

According to the Opinion, the Plaintiff was exiting a school bathroom when the door closed on her finger and severed the tip. The Plaintiff filed a lawsuit against the Defendant for her injuries and damages.

The Defendant filed a Motion on the Judgment on the Pleadings asserting that it was entitled to immunity under the Political Subdivision Tort Claims Act.

The court noted that immunity would be denied to a local agency such that a school district where there was negligence that made the government-owned property unsafe for the activities for which it was regularly used, for which it was intended to be used, or for a use that could be reasonably foreseen.

The court also noted that, under the Political Subdivision Claims Act, 42 Pa. C.S.A §8542, there was an exception to the general immunity rule for real property in possession of a local agency.

In this case, the court noted that, under the Act, personal property could become a part of the realty at the school, which would then trigger the immunity exception. As the court noted that it was unclear from the pleading whether the bathroom door was personal property or a fixture, the court held that the Motion for Judgment on the Pleadings was without merit in this respect.

The court also rejected the Defendant’s contention that the Plaintiff’s notification letter to the Defendant was outside the six-month statute of limitations stated in 42 Pa. C.S.A. §5522.

Although the record confirmed that the Plaintiff’s notification letter was outside of the six (6) month window, the court noted that the Defendant, in its motion had ignored a part of the statute.

The court confirmed that, under 42 Pa. C.S.A. §5522(a)(3), a failure to provide a timely tort claims notice was not necessarily fatal to the action if the government unit had actual or constructive notice of the event or injury.

In this matter, the Plaintiff alleged that teachers, the school nurse, and other school personnel attended to the Plaintiff on the day of her injury. As such, the court found that the Defendant school had constructive notice such that the six-month limitation under the Act did not apply.

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

Source: “Digest of Recent Opinions.” Pennsylvania Weekly Law (Jan. 12, 2021).

Tuesday, February 23, 2021

Eastern Federal District Magistrate Judge Bifurcates and Stays Bad Faith Claim in Post-Koken Case

In the case of Gramaglia-Parent v. Travelers Home & Marine Ins. Co., No. 20-3480 (E.D. Pa. Dec. 22, 2020 Rice, M.J.) (Mem. Op.), the court granted a Motion by the Defendant insurance company to bifurcate the Plaintiff’s breach of contract and bad faith claims regarding coverage for injuries in an automobile accident.

The court additionally found that trying the breach of contract claim first would result in efficiency and judicial economy.

The court additionally stayed any discovery under bad faith claim.

The court reasoned that trying the breach of contract claim before the bad faith claim would narrow the issues to be decided in the bad faith matter.

As stated, the Motion to Bifurcate was granted to further the interests of judicial economy.

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

Source: “Digest of Recent Opinions.” Pennsylvania Weekly Law (Jan. 12, 2021).

Monday, February 22, 2021

Pennsylvania Supreme Court Addresses Doctrines of Res Judicata As Well As Collateral Estoppel

In the case of In Re: Appeal of the Coatesville Area School District, No. 7 MAP 2020 (Pa. Jan. 20, 2021) (Op. by Saylor, C.J.), the court addressed the current status of the law in Pennsylvania regarding res judicata and the collateral estoppel doctrine in a case involving a tax appeal. 

Although this case involved a tax appeal, it is likely that the court’s pronouncement on the current status of the law regarding these doctrines would apply in all civil matters.

Under this decision, the court ruled that the Coatesville Areas School District should not have been barred from a merits resolution of its appeal of a tax assessment on the bases of res judicata (claim preclusion) and collateral estoppel (issue preclusion).  

In its decision, the court again confirmed that the doctrine of collateral estoppel focuses on issues rather than claims, whereas the res judicata doctrine more appropriately applies to the preclusion against relitigating entire claims a second time.   In the end, the Majority felt that the application of the doctrines was not warranted in this case.

Anyone wishing to review a copy of the Majority's decision may click this LINK. Justice Wecht's Dissenting Opinion can be viewed HERE. (The Dissenting Opinion also sets out the law nicely with respect to these doctrines).

Source: Article – “Pa Justices Define Contours of Res Judicata and Collateral Estoppel Doctrines, “ by P.J. D’Annunzio Pennsylvania Law Weekly (Jan. 22, 2021). 

Friday, February 19, 2021

Lackawanna County Mock Trial Finals Approaching -- Jurors Needed Please (It's Virtual!)


Reformation of a UIM Policy Found to Also Include the Addition of a Forum Selection Clause

In the case of Matthews v. Erie Insurance Group, 2021 Pa. Super. 6 (Pa. Super. Jan. 12, 2021 Bender, P.J.E., Lazarus, J., and Stevens, P.J.E.) (Op. by Bender, P.J.E.), the court addressed issues of venue in a UIM case.   

According to the Opinion, the Plaintiff was injured in a motor vehicle accident while operating a vehicle insured by the carrier under a policy issued to a construction company.   

The injured party filed suit for UIM coverage under the Erie policy under an argument that the construction company had never validly rejected UIM coverage.  

The carrier filed Preliminary Objections to venue seeking to transfer the case from Philadelphia County to Bucks County.  Those Preliminary Objections were sustained in the trial court and the case was transferred. 

The trial court had ruled that the reformation of the insurance policy to provide UIM coverage must also include the forum selection clause that would have accompanied the policy if it had been properly issued.  

On appeal, the injured party argued that Erie should not be entitled to a forum selection clause that was not included in the original policy and which had been reformed by the court.   The injured party attempted to argue that the reformation should only be with respect to a provision of UIM benefits and should not be expanded to include additional contract provisions such as a forum selection clause.   

The Pennsylvania Superior Court rejected the injured party’s argument and affirmed the trial court’s Order.   The appellate court agreed with the carrier’s position that the injured party’s position would afford greater rights to those insureds that did not select UIM coverage as compared to those customers who did select UIM coverage and, therefore, would be subject to the forum selection clause in the carrier’s UIM coverage provisions.  

The court further found that, if the injured party argues that he is entitled to UIM coverage, it would be just and fair that he should also be subject to the forum selection clause asserted with that coverage. 

Accordingly, the court affirmed the trial court and found that the trial court did not abuse its discretion in applying the terms of a forum selection clause in transferring the case to Bucks County.  

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

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Jan. 26, 2021).  

No Coverage -- No Bad Faith

In the case of Berkley Specialty Ins. Co. v. Masterforce Constr. Corp., No. 4:19-CV-01162 (M.D. Pa. Jan. 26, 2021 Brann, J.), the court ruled that, there can be no valid bad faith allegations against a carrier where no coverage is due, or where coverage is a close question based upon unsettled law.

In this decision, the court addressed a split of authority based upon Pennsylvania Superior Court precedent and Third Circuit Court of Appeal precedent on whether coverage is required to be provided for damages flowing from faulty workmanship in construction cases, even if the faulty workmanship itself is not covered.

Judge Brann relied upon Third Circuit precedent emphasizing that all reasonably foreseeable damages resulting from faulty workmanship do not constitute an “occurrence” whether that is damage to the product being constructed or damages to the property beyond the scope of the construction contract resulting from that faulty workmanship.

The court held that no coverage was due to replace a roof in this matter that had allegedly been improperly constructed. The court additionally found that there was no coverage due to areas of the roof damage that was outside the scope of the contracted roof work, which also had to be replaced as a result of the allegedly faulty construction, as these third party property damages were reasonably foreseeable.

As such, the court granted judgment on the pleadings in favor of the insurer as to coverage.

On the insured’s bad faith claim, the court also granted judgment on the pleadings after observing that the carrier had properly denied benefits and, therefore, the carrier had a reasonable basis for the denial of the benefits, which confirmed that the insured could not prove bad faith. The court additionally held that, where a carrier has no duty to indemnify, or where the duty to indemnify is debatable, it cannot be said that the carrier had no reasonable basis to deny the benefits in question. As such, the bad faith claim was dismissed for this additional reason as well.

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

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman Krekstein & Harris and the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog for bringing this case to my attention.  That blog can be viewed HERE.

Thursday, February 18, 2021

Summary Judgment Motions Addressed in Snow Slip and Fall Case

In the case of Snair v. Speedway, LLC, No. 1:18-CV-00376-CCW (W.D. Pa. Jan. 19, 2021 Wiegand, J.), the court granted in part and denied in part motions for summary judgment filed by a gas station, a snow removal service company, and that company’s subcontractor in a Plaintiff’s action for an alleged slip and fall event that allegedly occurred in a gas station parking lot matter.

The court found that there were genuine issues of material fact as to any constructive notice on the part of the gas station.

The court also found that there were genuine issues of material fact as to whether or not the snow removal service company owed any duty to the Plaintiff. Moreover, the court found that the subcontractor was not liable for indemnity or contribution under its contract.

According to the Opinion, the Plaintiff slipped and fell at the gas station while refueling his truck.

The Defendant gas station had contracted with the snow removal service company to provide snow and ice removal services at the gas station. That snow removal service company had contracted with a Defendant subcontractor to complete the plowing the salting.

The Plaintiff argued in opposition to the Motion for Summary Judgment that, since the snow and ice were under a canopy and was dirty, a jury could infer that the snow had been present for a significant period of time such that the gas station owner should have cleared the same. The Plaintiff also presented evidence that station employees were supposed to check for snow and ice around the pumps throughout the day and there was no evidence that any inspection had been performed from one day to the next leading up to the incident. As stated, the court found issues of material fact with respect to the potential liability for the gas station company and allowed that claim to proceed to a jury.

The court also found issues of fact regarding the Defendants argument that the “choice of ways doctrine” barred recovery for the Plaintiff. The court noted that there were issues of material fact as to whether the Plaintiff failed to avoid an obvious hazard and also chose a dangerous route over a safe route.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 4, 2021).

Tuesday, February 16, 2021

Judge Leeson Addresses Validity of Section 1983 Excessive Force Civil Rights Allegations

To the extent you may have an excessive force civil rights cause of action, you may be interested in the recent Opinion issued by Eastern District Federal Court Judge Joseph F. Leeson, Jr., in the case of Wright v. Whitehall Township, No. 5:20-CV-02664 (E.D. Pa. Jan. 12, 2021 Leeson, J.).

According to the Opinion, this civil rights action stems from an altercation between police officers and a group of teenagers attending a high school basketball game. After a melee between the teenagers and the officers, the Plaintiffs filed various Section 1983 civil rights claims, including claims of excessive force, retaliation, deliberately indifference policies, practices, customs, training and supervision, along with claims of state-created danger-substantive due process claims, conspiracy to violate civil rights claims, and violation of equal rights claims.

After reviewing the various Motions to Dismiss filed by various Defendants, the court dismissed many of the claims but allowed the Plaintiff to file an Amended Complaint.

Anyone wishing to review a copy of this decision for the latest on the law in excessive force civil rights claims may click this LINK.

I send thanks to Attorney W. Christian Moffitt of the Blue Bell, PA office of the Fox Rothschild, LLP law firm for sending this decision to my attention.

Sunday, February 14, 2021

Mixed Signals on How Juror Attitudes Have been Impacted by the COVID-19 Pandemic

Here is a LINK to one columnist's references to research and thoughts on how the COVID-19 pandemic may affect jury attitudes in the future.

In her article entitled "How will the 'Anthony Faucci effect' influence jurors?" by Debra Cassens Weiss published on the ABA Journal's website recently on February 4, 2021, the author notes conflicting signals on how jurors may rule in personal injury cases as jury trials open back up across the country.

In the end, while some trends may emerge in juror attitudes, it appears that proceeding to verdict will remain rife with uncertainty.

Thursday, February 11, 2021


I will be presenting a TORT TALK TOP 10 presentation at the below Zoom  Civil Litigation Update CLE set for February 19th at Noon.  Hoping you might please consider registering.


Wednesday, February 10, 2021

Virus Exclusion Defeats COVID-19 Business Interruption Coverage Claims

In the case of Newchops Rest. Comcast LLC v. Admiral Indem. Co., No. 20-1949 (E.D. Pa. Dec. 17, 2020 Savage, J.), the court addressed insurance coverage issues relative to alleged business losses by the Plaintiff’s restaurants due to COVID-19 closures.

According to the Opinion, the Defendant carrier had issued to the Plaintiff multiple commercial lines insurance policies that provided property, business income, extra expenses, and other coverages.

After the city in which the Plaintiff’s restaurants were located ordered the closure of all non-essential businesses due to the COVID-19 pandemic, the Plaintiff closed their restaurants to comply with the order.

At some point thereafter, the Plaintiffs filed a declaratory judgment action seeking a judicial declaration that their business losses were covered under the insurance policies. The case came to a head when the carrier filed a Motion for Judgment on the Pleadings.

The court ruled that the Plaintiffs had failed to state a claim for coverage under the civil authority or business income provisions of the Defendant carrier’s policy. The court found that the Plaintiff did not allege any losses caused by a “covered cause of loss.”

The court additionally ruled that, even if the Plaintiffs had alleged losses caused by a “covered cause of loss,” the Plaintiff’s claims for coverage were precluded by the virus exclusion contained in the policy. The court stated that the lack of a specific reference to a pandemic in the policy language did not render the policy provision ambiguous.

As such, the court granted the carrier’s Motion for Judgment on the Pleadings.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 5, 2021).

Tuesday, February 9, 2021

Willing To Help Out the Lackawanna County Mock Trial Competition (Virtual)


ARTICLE: The Defense of the Sudden Emergency Doctrine in Pa.

This article of mine was published on February 4, 2021 by the Pennsylvania Law Weekly and is republished here with permission.

The Defense of the Sudden Emergency Doctrine in Pa.

By Daniel E. Cummins | February 04, 2021

Daniel E. Cummins of Cummins Law.

In its recent decision in the case of Graham v. Check, No. 42 WAP 2019 (Pa. Dec. 22, 2020)(Op. By Wecht, J.), the Pennsylvania Supreme Court provided guidance for when a jury should be instructed on the still viable sudden emergency doctrine in a motor vehicle accident case.

While some commentators darted out in front of the decision to sound the death knell for the doctrine in Pennsylvania, a fair reading of the Graham decision shows otherwise.

Validity of the Doctrine Reaffirmed

In his majority opinion in Graham v. Check, Justice David Wecht upheld the continuing validity of the sudden emergency doctrine by reaffirming that Pennsylvania law “recognizes that sometimes injurious accidents are not caused by carelessness, but because events conspire to create a situation so urgent and unexpected that the person alleged to be blameworthy had little or no practical opportunity to avert the harm.”

Wecht confirmed that when the evidence in a case suggests that a motorist was faced with a sudden emergency, “the presiding judge may instruct a jury that, should it determine that such an emergency contributed to the accident, it should assess the defendant’s performance commensurately.”

While further reviewing the continuing validity of the doctrine over multiple pages of commentary in his majority opinion, Wecht also reaffirmed that the burden of supporting the application of the sudden emergency doctrine lies with the party asserting it. Also reaffirmed was the rule that, if the emergency could have been avoided by the exercise of reasonable care by the motorist, then the doctrine should not be applied and instructed to the jury.

The sudden emergency doctrine has been on the books in Pennsylvania and applied in a wide variety of negligence cases over at least the past 137 years. See Brown v. French, 104 Pa. 604, 604 (1884) (Sudden emergency doctrine applied to the case of a captain of a steamer on the Ohio river suddenly faced with a person attempting to cross the river on a skiff immediately before the fatal impact). Now, in its decision handed down at the end of 2020, the majority in the Graham v. Check decision leaves no question that the sudden emergency doctrine remains valid law in Pennsylvania to be applied and argued in future cases where supported by the facts presented.

Court Limits Application of Doctrine in Crosswalk Cases

Although the court reaffirmed the sudden emergency doctrine as a valid topic of jury instruction in motor vehicle accident cases where a driver is faced with a sudden and unexpected emergency immediately prior to an accident, in Graham, the application of the doctrine was limited under the very specific circumstances at issue in that case, that being where a pedestrian plaintiff, wearing dark clothing under dark conditions, suddenly darts out in front of a motorist while the plaintiff is within a crosswalk.

In this regard, Wecht also acknowledged that “since the advent of the automobile, Pennsylvania law has also imposed a heightened standard of care upon drivers to exercise particular vigilance when it is reasonably foreseeable that a pedestrian will cross their path, particularly at intersections.” In his opinion, Wecht reiterated that, under the specific facts at issue in this case, the application of the sudden emergency doctrine is “counterposed” against the “bedrock principle that a driver bears a heightened duty relative to pedestrians crossing at intersections.

In this pedestrian versus motor vehicle accident case of Graham v. Check, the Pennsylvania Supreme Court found that the trial court in this case erred in instructing the jury on the sudden emergency doctrine as evidence of darkness, an obstructed view for the motorist, and a lack of evidence of any overtly careless behavior and the fact that the pedestrian abruptly appeared in front of the driver moments before the impact all still did not serve to lay a proper foundation for the provision of that instruction to the jury due to the fact that a motorist has a heightened duty under Pennsylvania law to be on the lookout for pedestrians whenever approaching a crosswalk at an intersection.
It’s a Doctrine Not a Defense

As noted, some commentators, and even two dissenting justices in the Graham v. Check decision have attempted to portray the majority decision in Graham as holding that the sudden emergency doctrine is no longer a viable defense in Pennsylvania. A fair and proper reading of the majority’s opinion does not support this forced portrayal.

Granted, Wecht noted in his majority opinion in Graham that the sudden emergency doctrine “should not be understood as a ‘defense’ in the common sense, and the majority finds it ill-advised to use the word ‘defense’ in sudden emergency jury instructions in future cases, notwithstanding that the term features in the current suggested standard jury instruction.”

Wecht went on to explain that “properly understood, the doctrine of sudden emergency does not offer a defense,” but rather should be viewed as “one among the panoply of surrounding circumstances that a jury must take into account in assessing the reasonableness of each party’s actions or omissions” in a given accident. In other words, in terms of simple semantics and correct terminology, the Pennsylvania Supreme Court has held that the sudden emergency doctrine should not be called a “defense,” but still remains a valid doctrine that a trial judge can instruct a jury upon in a negligence case where the facts lay a foundation for the provision of the instruction.

As such, after Graham, the courts below and the litigating attorneys should consider the application of the sudden emergency doctrine to be more narrow in the context of a case of a pedestrian struck while in a crosswalk given the motorist’s heightened duty of care in such situations. Otherwise, judges and attorneys remain free, as they have for nearly the past 140 years in Pennsylvania, to continue to apply, instruct upon and/or argue the law of sudden emergency doctrine in terms of a defense against a negligence action—just don’t call it a “defense” anymore.

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 (, which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at

Monday, February 8, 2021

Pennsylvania Superior Court Offers Lessons on Hearsay Exception (Statements Made for Medical Diagnosis and Treatment)

In the case of Adams v. Rising Son Med. Ctr., No. 2020 Pa. Super. 298 (Pa. Super. Dec. 29, 2020) (Op. by Bowes, J.), the court addressed the applicability of the medical treatment hearsay exception found under Pa. R.E. 803(4).

This matter arose out of a medical malpractice action. At issue was the Plaintiff’s argument that the trial court had erred in precluding the Plaintiff from testifying as to what the Plaintiff’s decedent told medical providers in the emergency room regarding her family history of deep vein thrombosis.  This case involved an allegation that the medical providers failed to diagnose the Plaintiff’s own deep vein thrombosis which allegedly caused or increased the decedent’s risk of death due to a pulmonary embolism.

While the Plaintiff conceded that such testimony was hearsay, they argued that the testimony by the Plaintiff regarding what her deceased family member had told the medical providers was admissible under the hearsay exception for statements made for purposes of diagnosis and treatment.

The Defendants argued at the trial court level that a statement made for purposes of medical treatment qualifies for the hearsay exception under Pa. R.E. 803(4) only if it is proffered by a healthcare provider.

The Superior Court disagreed. The Superior Court noted that there were only two (2) requirements for a hearsay statement to come within the exception set forth at Pa. R.E. 803(4). First, the declarant must take the statement for purposes of receiving medical treatment. Second, the statement must be necessary and proper for the diagnosis and treatment.

The Pennsylvania Superior Court found no legal support for the defense argument that only a healthcare provider can testify as to statements made for purposes of medical treatment or any requirement for corroboration before the proffered statement is admissible.

The Superior Court additionally reasoned that this exception to the hearsay rule was created because statements made for the purpose of receiving medical treatment are typically stated in circumstances where the reliability of the declarant’s out-of-court statement is inherently trustworthy and where there is little motive to fabricate any information.

In the end, the Superior Court found that the trial court erred in excluding such testimony and that the exclusion of this testimony was highly prejudicial to the Plaintiff.  As such, the Pennsylvania Superior Court ruled that the Plaintiff was granted a new trial.

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

Source: “Digest of Recent Opinions.” Pennsylvania Weekly Law (Jan. 12, 2021).

Friday, February 5, 2021


At a Mediation, the goal is to settle, not to win.

And, remember, you and your client can win by settling.

(570) 319-5899

Thursday, February 4, 2021

Allegheny County Court of Common Pleas Addresses Stacking Issues

In the case of Thiry v. LM General Ins. Co., No. GD18-0143 (C.P. Allegh. Co. Dec. 30, 2020 Connolly, J.), the court addressed issues with respect to UIM stacking.

According to the Opinion, the Plaintiff’s father purchased automobile insurance coverage from the carrier in 2012 and, as part of the application process, signed appropriate UM/UIM coverage forms. As part of the forms executed, the Plaintiff’s father waived stacked limits of UIM coverage for himself and members of his household. At that time, three (3) vehicles were insured under the policy.

That policy was renewed for the three (3) original vehicles on two (2) subsequent occasions. Non-stacking endorsements were issued at each renewal.

Then, in March of 2015, the family purchased a fourth vehicle that was added to the policy. An amended Declarations page was issued listing four (4) vehicles, as well as an identification card for the new vehicle. However, no other paperwork was issued at that time.

The policy, which now covered four (4) vehicles was again renewed in September of 2015.

Almost a year later, in August of 2016, the Plaintiff was involved in a motor vehicle accident while riding as a passenger in a U-Haul vehicle being driven by a friend.

The Plaintiff collected the liability limits of the driver’s personal policy and the UIM limits from the U-Haul’s insurer.

The Plaintiff then sought UIM coverage from the Defendant carrier in this matter, arguing that he was a resident relative under his father’s policy.

The UIM carrier that provided coverage under the father’s policy paid the Plaintiff the non-stacked UIM limits of $250,000.00 but refused to agree to stacked coverage for the other remaining three (3) vehicles under that policy.

The Plaintiff filed this coverage action, claiming that he was entitled to stacked UIM coverage because the addition of the fourth vehicle on the policy represented a new purchase of insurance and that, therefore, a new waiver of stacking was required in order for the carrier to take the position it was asserting in this matter.

After his analysis of the facts and the current status of Pennsylvania law, the court ruled that the policy should be read to provide stacked limits on all four (4) vehicles, thereby entitling the Plaintiff to pursue additional UIM benefits under the policy. In so ruling, this court reviewed the appellate court’s decisions in Sackett I, Sackett II, and Sackett III.

The court ruled that, under these Sackett decisions and other on point state court decision compel the conclusion that a new stacking waiver was required under the facts presented in this case. As such, the court found that the Plaintiff was entitled to stacked UIM benefits under the policy in question.

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

I send thanks to Attorney John A. Biedrzycki of the Pittsburgh, PA office of Biedrzycki Law Office for bringing this case to my attention.

Wednesday, February 3, 2021

Disability Discrimination Claim Based Upon Plaintiff's Use of Medical Marijuana Rejected


In the case of Palmiter v. Commonwealth Health System, Inc., No. 20-CV-2544 (C.P. Lacka. Co. Nov. 10, 2020 Nealon, J.), an employment litigation based upon a claim of disability discrimination, the court ruled that, since the Plaintiff’s allegation that she was a patient who was authorized by the state to use medical marijuana for certain medical conditions failed to amount to an allegation that she had a “disability” under the Pennsylvania Human Relations Act, the Plaintiff was found unable to state a claim for employment discrimination in violation of the Act. 

As such, the court sustained the Preliminary Objections asserted by the defense. 

The court found that it was free and clear from any doubt, based upon the fact alleged in the Complaint, that the Plaintiff could not establish the requisite disability under the PHRA. As such, the Complaint was dismissed.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 5, 2021).

UPDATE: Judge Nealon's decision was affirmed on appeal.  The appellate court opinion can be found at Palmiter v. Scranton Quincy Clinic Co., No. 498 MDA 2020 (Pa. Super. Aug. 10, 2021 Dubow, J., Bowes, J., Stevens, P.J.E.) (Op. by Bowes, J.).

In a case of first impression upon appeal, the Pennsylvania Superior Court ruled that an employee fired for their status as a certified medical marijuana user may sue for wrongful termination. The court noted that the Plaintiff could pursue a claim for wrongful discharge under the Medical Marijuana Act after her hospital employer discharged her for a positive drug test.

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

Tuesday, February 2, 2021



Court Rules That Vehicle Caused To Suddenly Stop in Traffic Could Potentially Be Liable to Operator of Vehicle that Rear Ended the Stopped Vehicle

In the case of Cleveland Brothers Equipment Co., Inc. v. Vorobey, No. 4:19-CV-01708 (M.D.Pa. 2020 Brann, J.), the court addressed whether the sudden stoppage of a vehicle ahead on the roadway, which is followed by a rear-end collision, can result in liability on the stopping vehicle.

In reviewing the Motion for Summary Judgment in this case, the court reviewed the facts of a multi-vehicle accident. According to the Opinion, there was an earlier accident on the opposite side of the highway, as a result of which, some debris allegedly spilled over into the other side of the highway, causing traffic to stop or slow on that side of the highway.  A tractor trailer driver came to a stop in the stopped traffic and, shortly thereafter, several vehicles were allegedly rear-ended by another commercial vehicle.

The Defendant tractor trailer driver who had stopped ahead was the party who filed a Motion for Summary Judgment in this matter asserting that the operator of rear-ending vehicle who asserted liability claims against the stopped tractor trailer driver could not establish liability on the stopped vehicle.

Judge Brann indicated that the issues of liability presented was one to be decided by a jury. The court also noted that “sudden stoppage of a vehicle on the roadway…may create factual issues surrounding the proximate cause of an accident involving rear-end collision behind the stopped vehicle.” 

The court in this regard cited to the cases of Doland v. Berrios, 2014 WL 3809962 at *3 (M.D. Pa. 2014) and Gensemer v. Williams, 419 F.2d 1361, 1362 (3d. Cir. 1970) in support of its decision. 

As such, the court denied the Motion for Summary Judgment and allowed the issues to proceed to the jury.

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

Source of images: Stanley Nguma on

Monday, February 1, 2021

Volunteer Jurors Needed For Second Round of Lackawanna Mock Trial Competition


Law of Nuisance Applied to Noisy Rooster

Thank God there are lawyers to settle important disputes.

In the case of Batchelor v. Schwartz, No. 2018-08910-IR (C.P. Chester Co. June 15, 2020 Tunnell, J.), the court ruled that the crowing of a Defendant’s rooster caused significant harm to a person of normal sensibility such that the Plaintiffs were granted a judgment in their favor on a nuisance claim.

According to the Opinion, the Plaintiffs and the Defendant lived near each other in a residential neighborhood. The Defendant had a backyard farm that included chickens, a rooster, and other farm animals.

The Plaintiffs filed this nuisance claim, asserting that the Defendant’s rooster made loud, repetitive noises which kept the Plaintiffs, their family members, and guest awake at night. One of the Plaintiffs had even sought help for sleep disorders.

The court reaffirmed Pennsylvania law on nuisance claims. A nuisance can be found under Pennsylvania law where a personal engages in an unreasonable use of property which results in some type of injury to another person’s legitimate enjoyment of their own property. The test is whether or not the Defendant’s activity caused significant harm to a person of normal or reasonable sensibilities.

The court found that the prolonged situation involved in this case was significantly harmful and constituted an unlawful invasion of the Plaintiff’s right to enjoy their property.

The court’s decision was based, in part, on medical evidence presented relating to one of the Plaintiffs, testimony regarding sleep disturbances to others due to the rooster, and the court’s own review of audio evidence of the noise caused by the rooster’s crowing which was noted to be quite loud even inside the Plaintiffs’ home.

In ruling for the Plaintiffs, the court ordered the Defendant to abate the nuisance by placing the rooster in a barn overnight.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 5, 2021).

Source of image: