Wednesday, June 30, 2021

Judge Munley of Lackawanna County Addresses Standard for Scandalous and Impertinent Matter in a Complaint

 In the case of Janiszewski v. Millville Mut. Ins. Co., No. 2021-CV-839 (June 2, 2021 Munley, J.), the court addressed Preliminary Objections filed by a Defendant in an insurance bad faith action in which the Defendants sought to strike internet reviews of the Defendant insurance company from the Complaint as scandalous and impertinent matter.   

After reviewing the record before the court in this property damage homeowner’s insurance claim, and applying the law relative to efforts to strike allegedly scandalous and impertinent information, the court denied the Defendant’s Preliminary Objections.   

In so ruling, the court cited to precedent confirming that, “[t]o be scandalous and impertinent, the allegations must be immaterial and inappropriate to the proof of the cause of action.”  See Op. at p. 4.

The court noted that, whereas here, the allegations in the Plaintiff’s Complaint are material, relevant, and supportive of the Plaintiff’s causes of action and where a Defendant cannot affirmatively show prejudice by the inclusion of the allegations, the allegations should not be stricken as scandalous or impertinent. 

As stated, the Preliminary Objections were denied here where the negative internet reviews that were referenced in the Complaint were related to denial of claims by the carrier, which the court felt would be material and pertinent to the Plaintiff’s bad faith causes of action contained in the Complaint at issue in this case.   

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

Source of Image: Photo by Andrew Neel on

Monday, June 28, 2021

Third Circuit Court of Appeals Addresses Section 1983 Civil Rights Issues (Non-Precedential)

TortTalkers may recall a previous Tort Talk post on the case of Cost v. Borough of Dickson City, under which Judge Malachy Mannion of the Federal Middle District Court of Pennsylvania granted in part and denied in part summary judgment in favor of a municipality and Defendant police officers in the §1983 Civil Rights litigation. In a case arising out of a police response to a domestic disturbance.

As an update on that matter, under a decision marked as “Not Precedential” and dated June 3, 2021, the United States Court of Appeals for the Third District affirmed the trial court’s entry of summary judgment for the Defendants.

Anyone wishing to review a copy of this case, which contains a summary of the current status of the law in civil litigation matters alleging violations of the Fourth Amendment under 42 U.S.C. §1983 and state law, may click this LINK.

I send thanks to Attorney Patrick J. Murphy of the Scranton office of the Bardsley, Benedict and Scholden LLP law firm for bringing this to my attention.

Source of image:  Bill Oxford on Unsplash.  

Friday, June 25, 2021

Pennsylvania Superior Court Addresses Collateral Estoppel With Respect to Prior Criminal Conviction

In the case of Rogers v. Thomas, No. 2021 Pa. Super. 93 (Pa. Super. May 11, 2021) (Op. by McLaughlin, J.) (Stabile, J., concurring and dissenting), the court found that, in a wrongful death shooting civil litigation that took place after the shooter was previously convicted in a criminal case, that the trial court erred in permitting a jury to determine whether or not the shooter Defendant was negligent since had already been criminally convicted of voluntary manslaughter.

The court ruled that the shooter Defendant was collaterally estopped from re-litigating his liability where there was a criminal conviction in place from a prior criminal trial. The court ruled that the previous criminal conviction prevented the Defendant from denying, in a subsequent civil case, things that were necessarily proven in the criminal case, absent extraordinary circumstances.

However, the court disagreed with the Plaintiff’s argument that the Defendant’s criminal conviction also established that Co-Defendants that were related to the shooter were also negligent. Rather, the court found that the Plaintiff were required to prove additional facts beyond the shooter Defendant’s negligence to show that the other Co-Defendants were potentially liable.

The court also disagreed with the Plaintiff’s argument that the trial court had erred in allowing the jury to determine comparative negligence in terms of the shooting victim. The court agreed with the trial court that these issues had not been litigated in the criminal trial.

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

The Concurring and Dissenting Opinion by Judge Stabile can be viewed HERE.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 1, 2021).

Source of image:  Tingley Injury Law Firm via Unsplash.

Wednesday, June 23, 2021

Statute of Limitations Argument Can Be Made By Preliminary Objections In Some Cases

In the case of Weisberg v. Bansley, No. 20-CV-4432 (C.P. Lacka. Co. May 20, 2021 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed Preliminary Objections in a convoluted civil litigation, which Preliminary Objections were based, in part, upon a statute of limitations defense.

The court noted that this matter began as an ejectment action in 2006 and had since spawned three (3) additional lawsuits, with the current lawsuit being an action claiming wrongful use of civil proceedings that were instituted in an earlier lawsuit asserting wrongful use of civil proceedings.

In the pending case, a lawyer sued his ex-client, that client’s former attorneys, and the attorney who represented the ex-client’s former lawyer in the prior action alleging wrongful use of civil proceeding.

The Defendants filed Preliminary Objections asserting that the current case was barred by the statute of limitations since it was not commenced within two (2) years of the date that the prior lawsuit under the Dragonetti Act was voluntarily discontinued with prejudice as to all parties.

The Plaintiff countered with the argument that the current lawsuit was timely filed and that the discovery rule operated to extend the statute of limitations period.

After reviewing the records before him, Judge Nealon found that it was free and clear from doubt that the underlying Dragonetti action was voluntarily discontinued as to all parties “with prejudice” more than two (2) years and twenty-six (26) days before the current action was commenced.

Judge Nealon also noted that the question of whether a voluntary Discontinuance under Rule 229 constitutes a final termination for purposes of the question presented in this case depended upon whether the Discontinuance was with prejudice or without prejudice and whether it was a global Discontinuance as to all parties, as opposed to a mere dismissal of less than all Defendants. The court cited other case law confirming that, when an action is voluntarily discontinued with prejudice, the resulting dismissal with prejudice finalizes the parties’ rights as would a judgment on the merits and binds the parties with the same force and effect as if a final decree had been rendered after a full hearing on the merits.

In contrast, if a matter is voluntarily discontinued without prejudice, the Plaintiff is at liberty to commence, pursuant to Pa. R.C.P. 231(a), a second action based upon the same cause of action, provided that the statute of limitations had not expired. See Op. at 16.

The court also addressed the fact that the statute of limitations defense was raised in this matter by way of Preliminary Objections as opposed to by way of an Answer and New Matter, which is ordinarily the correct way to assert such a defense. 

The court reviewed the law confirming that, where the statute of limitations defense is clear on the face of the pleadings and the record and where a Plaintiff did not file Preliminary Objections to the Defendants’ assertion of that affirmative defense by way of Preliminary Objections rather than New Matter, the merits of a statute of limitations defense could be addressed by the court.

As more than two (2) years had passed since the previous litigation at issue had been terminated, the court found that the current lawsuit was clearly time-barred. As such, the Defendants’ Preliminary Objections in the nature of a demurrer based upon the expiration of the statute of limitations was sustained.

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

Source of image:  Photo by Nathan Dumlao on

Monday, June 21, 2021

Tort Talk Has Moved From Feedburner to For Email Subscriptions


I sent out a Tort Talk blog post recently advising that there was going to be a change in the Email Subscription service for Tort Talk.

To allay any concerns you may have, I wanted to confirm to you that, due to the fact that Feedburner was phasing out its Email Subscription service, I have switched to as the new Email Subscription service for Tort Talk.

If you wish to continue to receive the Tort Talk please click where indicated on the email you should have initially received from referencing this change -- that was a valid email request.

If you cannot find that email, you can always go to and sign up as an email subscriber in the Email Subscription box in the upper right hand corner of the blog.

Thank you for reading Tort Talk.

Claim of Ostensible Agency Allowed to Proceed to Jury in Med Mal Case

In the case of Cicchella v. Jaditz, No. 19-CV-4086 (C.P. Lacka. Co. May 26, 2021 Nealon, J.), the court denied a hospital’s Motion for Summary Judgment seeking to dismiss the Plaintiff’s claim against it asserting ostensible agency and liability for the negligence of its treating doctor and assisting nurse practitioner. 

The hospital asserted that the evidence was insufficient as a matter of law to establish ostensible agency under §516 of the Medical Care Availability and Reduction of Error (MCARE) Act for the claimed negligence that allegedly occurred only on an outpatient basis after the decedent had been discharged from the hospital.

The Plaintiff countered with the argument that her medical expert had pointed to negligence by the treating doctor that began in the hospital setting at which point that treating provider appeared to be the hospital’s agent. The Plaintiff also asserted that the alleged negligence continued thereafter on an outpatient basis. It was the Plaintiff’s argument that the question of the existence of an ostensible agency relationship should be left to the jury.

After reviewing §516 of the MCARE Act, under which the standards by which a hospital may be held vicariously liable for the negligence of an independent contractor physician based upon ostensible agency, and applying those standards to the record before the court, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas found that there was evidence upon which a jury could conclude that the treating medical provider at issue was an agent of the hospital at the time the treatment was provided. The court also noted that the Plaintiff’s medical expert for trial would offer testimony in support of this allegation.

Overall, the court found that, viewing the record in the light most favorable to the Plaintiff under the required Motion for Summary Judgment standard of review, it could not be stated, as a matter of law, that a reasonably prudent person in the decedent’s position would not have been warranted in believing that the allegedly negligent care by the medical provider at issue was being furnished by the hospital’s agent, or that the hospital did not advertise or represent that medical provider’s care as being rendered by its agent. As such, the hospital’s Motion for Summary Judgment was denied.

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

Source of image:  Photo by Karolina Grabowska from

Thursday, June 17, 2021

Negligence Per Se and Punitive Damages Claims Allowed to Proceed in Dog Bite Case Based on Violation of The Rabies Act

In the case of Philips v. Horvath, No. 536-CV-2021 (C.P. Monroe Co. May 14, 2021 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas address Preliminary Objections filed by a Defendant against a Plaintiff dog bite Complaint on the issues of punitive damages.

The Plaintiff alleged that he was attacked by the Defendant’s dog, as a result of which the Plaintiff had to seek out treatment, including receiving six (6) rabies injections.

The Defendants filed Preliminary Objections, in part, against the Plaintiff’s claims of negligence per se based upon an allegation that the facts confirmed a violation of the Pennsylvania Rabies Control Act. The Defendant filed a Preliminary Objection stating that this claims should be dismissed on the basis that the Plaintiffs failed to allege an injury that was proximately related to that alleged violation of that Act.

The Defendants claimed that the Plaintiff has failed to show that the failure on the part of the Plaintiff to vaccinate their dog from rabies resulted in injuries to the Plaintiff. The Plaintiff countered with the argument that part of the alleged injuries sustained involving the Plaintiff having received rabies shots as a result of the bite, which resulted in thousands of dollars’ worth of medical records as well as emotional distress related to the fear of contracting rabies.

Judge Williamson sided with the Plaintiff. The court found that the Plaintiff was not arguing that the dog bite itself was negligence per se but rather the failure to the Defendants to vaccinate the dog and with respect to the separate injuries that resulted to the Plaintiff in addition to the dog bite itself. 

More specifically, the Plaintiff not only alleged that he sustained a laceration from the bite by the Defendants’ dog, but also had to receive a total of six (6) injections in order to be sure that he would not contract rabies. The Plaintiff additionally claims a monetary loss due to the medical bills required to be paid for those injections. The court also reiterated the Plaintiff alleged emotional damages due to the fear that he might contract rabies.

Judge Williamson noted that the Plaintiff was not arguing that ‘but for the Defendants’ failure to follow the act he would not have been bitten,’ but rather, the Plaintiff was arguing that 'but for the Act not be followed by the Defendants, the Plaintiff would not have had to receive six (6) injections to prevent a possible rabies exposure, sustain a monetary loss associated with those injections, and would not have sustained emotional distress from having to worry about contracting rabies.'

As such, the court denied Defendants’ Preliminary Objections.

Notably, the court also found that the facts alleged were sufficient to support the Plaintiff’s claims for punitive damages. The court found facts in the Complaint that supported claims of an outrageous act and/or recklessness.

In particular, the court noted that the Plaintiff alleged that the incident occurred due to the Defendants’ failure to restrain their pit bull or to close him in another room in order to guarantee the safety of the Plaintiff. The court also noted that the Defendants had failed throughout the dog’s entire life to get it vaccinated for rabies. Judge Williamson additionally noted that the record revealed that the Defendants had direct knowledge that the dog was not vaccinated as they had secured the dog as a puppy and was informed at that time that the dog needed to be vaccinated but the Defendants failed to do so.

The court found that the nature of these alleged acts or omissions could be construed as a reckless disregard for the safety of others and could be considered outrageous in the context of a claim for punitive damages.

As such, the Defendants’ demurrer asserted against the punitive damages claim was overruled.

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

I send thanks to Attorney Thomas J. Newell of Newell Law for bringing this case to my attention.



(570)  319-5899

Wednesday, June 16, 2021

Vendor For Email Subscription Service For Tort Talk Being Changed -- No Action Required On Your Part


I have been notified that Feedburner, the vendor that has provided the email subscription services for many years for Tort Talk, is being phased out.

With the help of an IT specialist, I have researched other email subscription vendors and have chosen to continue the email subscription service with a company called

Within the next week or so, the emails saved under the Feedburner system will be migrated over to the system and I am told that the emailed Tort Talk blog posts will continue to flow out as if no change ever happened.

No action is required on your part.

Presently there are about two emails already set to go out each week over the next few weeks, if not a few more.

Should you go a straight work week without receiving a Tort Talk blog post update by email, please let me know and I will check for any issues that may need to be worked out on my side.

Thank you for reading Tort Talk.

Constitutionality of Punitive - Compensatory Damages Ratios Explored by Pennsylvania Superior Court

In the case of The Bert Co. v. Turk, No. 817 WDA 2019 (Pa. Super. May 5, 2021) (Op. by Kunselman, J.) (Collins, J., dissenting), the Pennsylvania Superior Court, in addressing an issue of first impression, rejected a Defendant’s claim that a $2.8 million dollar punitive damages award violated due process as the Pennsylvania Superior Court was persuaded by precedent that the computation of damages ratios on challenges to punitive damages awards in a multi-Defendant case should be on a per-Defendant basis, rather than by aggregating all compensatory and punitive damages on a per-judgment basis.

The Pennsylvania Superior Court additionally ruled that the United States Supreme Court had not established any bright-line ratio which a punitive damages award cannot exceed. As such, the court rejected the proposition that a punitive damages award was per se unconstitutional merely because it was over eleven (11) times greater than the compensatory damages awarded.

Anyone wishing to review the 94 page Majority Opinion may click this LINK.

The Dissenting Opinion can be viewed HERE.

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

Source of image: (Karolina Grabowska)

Monday, June 14, 2021

Lackawanna County Court of Common Pleas Again Rules that Recklessness May Be Pled in Any Case

In the case of Clauss-Walton v. Gulbin, No. 20-CV-4860 (C.P. Lacka. Co. May 21, 2021 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued another decision that continues the uniformity of decisions out of this county ruling that a Plaintiff may assert claims of recklessness in any personal injury litigation whatsoever.

The court again relied upon the case of Archibald v. Kemble, 971 A.2d 513, 517 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010), under which it was held that allegations of recklessness may be made in any case as a general averment of a state of mind.

In this case, the Plaintiff alleged that an elderly Defendant driver recklessly chose to drive despite the fact that she had a urinary tract infection that had progressed to the point where the Defendant was rendered unconscious during the course of her trip. The Plaintiff alleges that, as a result of passing out while operating her motor vehicle, the Defendant crossed the yellow line and struck the Plaintiff’s vehicle in a head-on fashion.

In her Complaint, the Plaintiff alleged that the Defendant acted in a reckless manner. The Plaintiff also made a claim for punitive damages.

The Defendant filed a demurrer to the Plaintiff’s claims of recklessness and for punitive damages.

As noted above, based upon, in part, the Archibald case, the court denied the demurrer and allowed the claims to go forward. The court did note that, following the completion of discovery, the Defendant could revisit legal sufficiency of the punitive damages claims by way of a Motion for Summary Judgment.

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

Bad Faith Claim Based Upon Delay in Full Payment Dismissed; Right to File Amended Complaint Allowed

In the case of Elansari v. The First Liberty Ins. Corp., No. 2:20-CV-5901-JDW (E.D. Pa. May 6, 2021 Wolson, J.), the court granted a Defendant’s Motion to Dismiss a Plaintiff’s Amended Complaint for bad faith but allowed the Plaintiff to file yet another Amended Complaint.

According to the Opinion, the Plaintiff alleged a breach of contract where the carrier subsequently paid a disputed amount of total liability and lost income coverage. The Plaintiff complained that the carrier failed to make full payment within a certain timeframe and asserted that he suffered damages due to that delay.

The Opinion indicated that the carrier first issued a check to the Plaintiff for approximately $3,700.00 and advised him that it would not pay additional compensation. However, after the Plaintiff filed suit, the carrier then issued an additional payment for another $1,089.00.

The court granted the carrier’s Motion to Dismiss after finding that the Plaintiff’s claim that the carrier had breached the insurance contract by not paying the additional amount failed because the carrier had since sent the Plaintiff a check for that amount in dispute.

The court also found that the Plaintiff failed to establish that the carrier had any contractual or legal duty to process his claims within a certain timeframe or that the Plaintiff had suffered any compensable damages as a result of any purported delay.

The court additionally noted, in this bad faith case, the Plaintiff's claims that the carrier’s purported delay in processing the additional payment failed in that that alleged delay appeared from the record before the court to be the result of negligence rather than any recklessness or bad faith.

Neverthless, the Plaintiff was still granted the right to file an Amended Complaint.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 27, 2021).

Friday, June 11, 2021

Applications Being Accepted for Federal Middle District Judgeship Opening

Senators Casey and Toomey recently announced that they are soliciting applications to fill a Federal Middle District Judge position.  If you are interested, here is the LINK June 8, 2021 Press Release which contains more information on how to apply.  The deadline for applications is July 8, 2021.

Thursday, June 10, 2021

Court Rules That Reasonableness Standard of Hills and Ridges Doctrine Also Applies When Snow Falls From a Roof

In the case of Sylvester v. Alvin Ziegler Snow Removal, No. 2933-CV-2019 (C.P. Monroe Co. April 6, 2021 Zulick, J.), the court granted Defendants’ Motion for Summary Judgment in a slip and fall case after finding that the Defendants’ failure to remove snow from roof tops during an ongoing snowstorm was not unreasonable.   According to the Opinion, the Plaintiff was allegedly injured by snow falling off of a roof as he was leaving his place of employment.  

The record before the court indicated that the Defendants had entered into a contract with the owner of the property to remove snow from the premises.   

The Plaintiff filed suit in this matter alleging negligence against the Defendants for failing to clear snow from the roof. The Plaintiff was allegedly injured as he was leaving a building and snow that had accumulated on a roof during a severe snowstorm had fallen upon the Plaintiff.

The Defendants moved for summary judgment.   

The Plaintiff asserted that the hills and ridges doctrine, which afforded a landlord a reasonable amount of time to remove dangerous conditions caused by ice and snow, applied to walkways and not to snow falling on a roof.   

The court rejected this argument and found that the same reasonableness standard found under the doctrine applied whether the snow to be removed was on the ground or on the roof.   

The court also emphasized that this winter event involved a major snowstorm that dropped more than 20 inches of snow and had even made the roadways impassable.   The court rejected the Plaintiff’s argument that the Defendants should have worked longer to remove snow from the rooftops during this severe and ongoing snowstorm in order to prevent injury to the Plaintiff.

As noted above, summary judgment was granted in favor of the Defendants.   

Anyone wishing to review this decision may click this LINK.

Tuesday, June 8, 2021

Occurrence Rule under Statute of Limitations Applied in Legal Malpractice Suit

In the case of Keystone Custom Homes, Inc. v. Appel & Yost, LLP, No. 2015-07661-PL (C.P. Chester Co. Dec. 18, 2020 Tunnell, J.), the court, sitting without a jury, ruled in favor of the Defendant law firm in a legal malpractice claim.

Of note, the court found that the Plaintiff’s legal malpractice claim, in which it was alleged that the Defendants negligently prepared a public offering statement for them, was barred under the occurrence rule as the statute of limitations period had begun to run upon the happening of the alleged breach of duty, that is, when the Defendant prepared and provided them with an allegedly erroneous public offering statement back in 2007.

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

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

Friday, June 4, 2021



(570) 319-5899

Pennsylvania Superior Court Affirms Granting of New Trial in Zero Award for Pain and Suffering Where Medical Expenses Awarded

In the case of Mazzie v. Lehigh Valley Hospital-Muhlenberg, No. 473 EDA 2020 (Pa. Super. April 16, 2021 Kunselman, J., Nichols, J., and Pellegrini, J.) (Op. by Nichols, J.), the court ruled that a trial court did not abuse its discretion in granting a Plaintiff a new trial limited to damages in her medical malpractice action after finding that the liability issues were fairly determined and were not intertwined with the damages issues.

The case arose out of a medical malpractice action following a laparoscopic surgery to repair multiple hernias. After the surgery, the Plaintiff allegedly suffered septic shock and required additional surgeries and treatment to safe her life.

The appellate court also found that the trial court had correctly granted the Plaintiff a new trial on damages for pain and suffering even though the jury entered a verdict for $0 on the Plaintiff’s non-economic damages claims. The court found that there was significant testimony and evidence to confirm the Plaintiff’s alleged pain and suffering to the point that the Plaintiff almost died following the treatment.

In another notable part of this opinion, the Court reviewed the validity of an expert's opinion where the expert did not use the words "to a reasonable degree of medical certainty" during his or her testimony.  The Court found that, viewing the expert's testimony as a whole, the testimony was sufficiently certain even though the magic words were not used.    

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

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

Wednesday, June 2, 2021

Claims of Recklessness Dismissed in Garden Variety Rear End Accident Case

In the case of Castronuovo v. Schwartz, No. C-48-CV-2021-00660 (C.P. Northampt. Co. April 27, 2021 Baratta, J.), Judge Stephen G. Baratta of the Northampton County Court of Common Pleas sustained a Defendant’s Preliminary Objections with regards to allegations of recklessness asserted by a Plaintiff in a motor vehicle accident case. The Plaintiff was granted leave to amend.

According to the Opinion, this matter arose out of a rear-end motor vehicle accident. The defense asserted that the allegations in the Plaintiff’s Complaint contain facts that only amounted to ordinary negligence and did not make the threshold of outrageous, wanton, or reckless conduct necessary to support allegations of recklessness.

The court agreed and noted that the Plaintiff had alleged a “garden variety” rear-end collision. See Op. at p. 5.

In response, the Plaintiff asserted that the allegations were sufficiently specific to support a claim of recklessness. In support of this position, the Plaintiff relied upon Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010), for the proposition that recklessness is also known as willful and wanton misconduct and, as such, recklessness is a condition of the mind that may be averred generally pursuant to Pa. R.C.P. 1019(b).

Judge Baratta stated that the Plaintiff’s reliance upon Archibald was misplaced. The court emphasized that, in Archibald, the Pennsylvania Superior Court had vacated summary judgment in favor of the Defendant after finding that, even though the Plaintiff’s Complaint did not specifically alleged reckless, the Complaint did assert a factual predicate supporting a claim of recklessness, including allegations of intentional acts on the part of the Defendant. Judge Baratta stated that the Archibald court held that the Plaintiff did allege very specific facts which supported the claims of recklessness, and that, even though the Complaint sounded in general negligence, the court in Archibald noted that recklessness is a specific category of negligence.

Overall, Judge Baratta read the Archibald decision to hold that “recklessness must be pleaded by facts which support the claim, facts which establish wanton and willful conduct, facts beyond mere negligence, and facts indicating a state of mind that ‘is so far from a proper state of mind.’” Judge Baratta stated that “[c]learly, general negligence cannot establish recklessness” under Pennsylvania law. See Op. at 7.

Judge Baratta additionally rejected the Plaintiff’s claims that allegations of recklessness should be allowed so as to preclude a comparative negligence defense by the Defendant if reckless, wanton, or willful misconduct is found by the jury. The court rejected this theory by the Plaintiff by noting that the Plaintiff still must pled the facts to support allegations of wanton or willful misconduct before being able to assert claims of recklessness in a Complaint. Judge Baratta went on to state that “[c]learly, a common automobile accident, in which only balled, general negligence claims are raised, cannot support an allegation of recklessness.” See Op. at 8.

For these reasons, the court sustained a Defendant’s Preliminary Objections against the Plaintiff’s allegations of recklessness in this garden variety rear-end motor vehicle accident case. The court did allow the Plaintiff an opportunity to file an Amended Complaint if there are any additional facts to be pled to “correct this pleading defect.” However, if no Amended Complaint is filed by the Plaintiff, the allegations of recklessness will be considered to have been stricken with prejudice by operation of law.

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

I send thanks to Attorney Wendy R.S. O’Connor of the Allentown, PA office of Marshall Dennehey for bringing this case to my attention.