Friday, October 29, 2021

Court Addresses Proper Venue for a Corporate Defendant


In the case of Schultz v. Plough, No. 10524 (C.P. Lawr. Co. Aug. 5, 2021 Cox, J.), in addressing Preliminary Objections raising the issue of proper venue for the action, the court found that the Plaintiff alleged sufficient facts to show that a corporate Defendant regularly conducted business in Lawrence County as per Pa. R.C.P. 2179(a).

This matter arose out of a multi-vehicle accident that also involved damages to utility poles and personal injuries to people involved in the accident.

The Defendants argued that none of the parties resided or maintained a principle place of business within Lawrence County. The Defendant also asserted that the events associated with the claims raised by the Plaintiff occurred in a different county, that being Crawford County.

After reviewing the record before it, the court noted that the Defendant maintained communication liens, utility poles, and other hardware within Lawrence County.

The Plaintiff had also argued that the Defendant was the sole communications provider for parts of Lawrence County and also advertised in Lawrence County.

The court noted that, under Pa. R.C.P. 2179(a), allowed an action against the corporate Defendant to be pled in a county where the corporate Defendant regularly conducted business. The court reviewed the record and found that the corporation performed acts of sufficient quality and quantity to establish venue within Lawrence County.

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


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

Source of image:  Photo by Caleb Ruiter on Unsplash.com.

Test For Proper Venue for Corporate Defendants Addressed by Court



In the case of Dibble v. Page Transp. Inc., Sept. Term 2020, No. 060 (C.P. Phila. Co. May 19, 2021 New, J.), the court issued a Rule 1925 Opinion recommending that the Pennsylvania Superior Court affirmed its Order sustaining Preliminary Objections to venue in a motor vehicle accident case.

According to the Opinion, the Plaintiffs were involved in a motor vehicle accident in New York. The Defendant driver, was a resident of Pennsylvania.  The tractor trailer company Defendants were from New York, one of which had registered business offices in Harrisburg, Pennsylvania.

The lawsuit was filed in Philadelphia County.

The court noted that, under the test set forth in the case of Purcell v. Bryn Mawr Hospital, 579 A.2d 1282 (Pa. 1990), the Plaintiffs failed to demonstrate that any of the Defendants named in this lawsuit had either the requisite quantity or quality of business contacts in Philadelphia County to be considered to have had “regular” contacts with that jurisdiction.

The court noted that the record confirmed that none of the Defendants had any contacts in Philadelphia County and that the drivers of the company never traveled through Philadelphia rarely carried loads through Pennsylvania.

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


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

Thursday, October 28, 2021

Please Consider Attending Virtual Lackawanna Pro Bono Gala on November 11, 2021


For more information about Lackawanna Pro Bono's Virtual Fundraising Gala and to purchase tickets and/or sponsorships, please click HERE.



 

Court Addresses Standards For Withdrawal As Counsel of Record in a Civil Matter


In the case of Fisher v. Correctional Care, Inc., No. 14-CV-4778 (C.P. Lacka. Co. Aug. 1, 2021 Nealon, J.), the court granted a defense attorney’s Petition for Leave to Withdraw as Counsel in a civil litigation matter.

It was noted that the Defendant party did not file an Answer to its attorney’s Petition for Leave to Withdraw as Counsel nor did any representative for the Defendant appear at the hearing.

Judge Terrence R. Nealon revealed of the Lackawanna County Court of Common Pleas reviewed the law regarding withdraw as counsel from a civil litigation matter and granted the Petition.

Judge Terrence R. Nealon
Lackawanna County

The court noted that the defense attorney had asserted that the defense firm was not being paid for its legal services rendered and that the client had insisted on pursuing a defense that counsel considered repugnant, which resulted in irreconcilable differences between counsel and client.

The court noted that Rule 1.16(b) of the Rules of Professional Conduct allowed a lawyer to request to withdraw from representation of a client if a client either insists on taking an action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement and/or where the representation would result in an unreasonable financial burden on the lawyer, or other good cause.

While the court additionally noted that a Petition to Withdraw as Counsel may be denied if it will result in prejudice to a party, there was no prejudice found in this case.

 The court found that the defense firm had offered sufficient grounds to withdraw as counsel and that there was no prejudice.  Accordingly, defense counsel's Petition to Withdraw was granted.

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


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


Source of image:  Photo by Wesley Tingey on Unsplash.com.

Denial of Defense of Sovereign Immunity Immediately Appealable

In the case of Brooks v. Ewing Cole, Inc., No. 4 EAP 2021 (Pa. Sept. 22, 2021)(Op. by Mundy, J,), the Pennsylvania Supreme Court ruled that a claim of sovereign immunity was immediately appealable under the collateral order doctrine given that sovereign immunity was a complete production from suit, not just liability for damages.   

The court noted that the benefit of the immunity provided to a government agency would be irreparably lost if that entity were forced to litigate all the way through to a final judgment and then seek appellate review on its immunity claim.   


As such, the Pennsylvania Supreme Court ruled that a trial court order denying summary judgment on the issue of sovereign immunity was immediately appealable as a collateral Order.


Anyone wishing to review this decision may click this LINK.

Source: "Digests of Recent Opinions." Pennsylvania Law Weekly (Oct. 19, 2021).

Wednesday, October 27, 2021

Eastern Federal District Court Dismisses COVID-19 Business Interruption Claim

In the case of Fuel Univ. City, LLC v. Allied Ins. Co. of Am., No. 2:20-cv-04478-CMR, (E.D. Pa. Sept. 9, 2021 Rufe, J.), the Eastern District Federal Court ruled that a business was not entitled to business interruption coverage for losses incurred during shutdown orders issued by the government in response to the COVID-19 pandemic.

According to the Opinion, the Plaintiff, Fuel University City, LLC, owned and operated a delicatessen that was covered by an “all-risk” commercial insurance policy.   

The court noted that, under the insurance policy at issue, coverage was only available for losses incurred for a direct physical loss or damage to the covered property, and the pandemic had caused no such specific damages.   

Based upon this ruling, the court granted the Defendant’s Motion to Dismiss.   




COVID-19 Business Interruption Coverage Claim Dismissed


In the case of Penn Asian Senior Serv. v. Selective Ins. Co.,  No. 20-4919 (E.D. Pa. Sept. 30, 2021 Pratter, J.), the court granted an insurance company’s Motion to Dismiss a Plaintiff’s business interruption coverage action under its property insurance policy relative to the COVID-19 pandemic closures.

According to the Opinion, the Plaintiff filed a declaratory judgment action seeking coverage under its property insurance policy for operating expenses incurred while its adult daycare center was closed due to COVID-19 orders.

The court found that the Plaintiff did not show any evidence of a physical loss of the premises.

The court additionally stated that the civil authority provision did not apply under the circumstances presented.

The virus exclusion in the policy was also found to preclude coverage.

As such, the court granted the carrier’s Motion to Dismiss.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 21, 2021).

Business Interruption Coverage and Bad Faith Claims Dismissed



In the case of Round Guys Brewing Co. v. Cincinnati Ins. Co., No. CV-20-6252 (E.D. Pa. Sept. 22, 2021 Sanchez, J.), the court found that no coverage was due in this COVID-19 business loss coverage case.

After finding no coverage due, the court also dismissed the Plaintiff’s claim for bad faith after noting that the carrier’s position in denying coverage in this case was widely supported by the case law. As such, the court noted that the carrier’s denial of coverage in this business interruption coverage case was reasonable and that the Plaintiff had failed to adequately plead the elements of a bad faith claim.

Anyone wishing to review a copy of this decision may click this LINK.  The companion 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 New Jersey Insurance Bad Faith Case Law blog for bringing this case to my attention.

COVID-19 Business Interruption Coverage Claim Dismissed


In the case of Infinity Real Estate, LLC v. Travelers Excess & Surplus Lines Co., No. 2:20-CV-06398-CMR (E.D. Pa. Sept. 13, 2021 Rufe, J.), the court granted a Defendant’s Motion to Dismiss in a business interruption coverage case related to the COVID-19 pandemic. 

The Plaintiff asserted that it suffered a loss of rental income when its commercial tenants were forced to shut down or limit operations in response to government orders issued during the COVID-19 pandemic. The Plaintiff filed a claim with the Defendant carrier, who denied coverage. The Plaintiff then filed suit.

The court agreed with the Defendant’s Motion to Dismiss after ruling that, under the policy, the Plaintiff was only entitled to coverage for loss of business or rental income caused by physical loss of property or by civil authority orders.

The court noted that, although the COVID-19 shutdown Orders were issued by a civil authority, the court noted that the Orders were motivated by the pandemic, meaning that the Plaintiff’s loss of income was caused at least indirectly by a virus. The court otherwise noted that the policy contained a virus exclusion, which was applicable in this matter.

The court in this matter also ruled that the COVID-19 shutdown Orders did not cause a direct physical loss of the Plaintiff’s properties, which was required under the policy for coverage to be implicated.

As noted, the court granted the Defendant’s Motion to Dismiss.

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


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


Source of image:  Photo by Tim Mossholder from Pexels.com.

Monday, October 25, 2021

Consider Attending CLE by Tort Talk This Friday (Encore Presentation)







PDI LUNCH TIME WEBINAR (non-members welcome)

REGISTER NOW!!!

FRIDAY, OCTOBER 29, 2021@ 12:00 P.M.

“Back to School: A Civil Litigation Update from Tort Talk”

PRESENTED BY: DANIEL E. CUMMINS, ESQUIRE, CUMMINS LAW, CUMMINS MEDIATION and TORT TALK







ASSISTING IN PRESENTATION :  JP CARDONI of  EXHIBIT A
















Do not miss this PDI Lunch Time Webinar presented by the publisher of Tort Talk, Daniel E. Cummins, Esquire, of Cummins Law, Cummins Mediation and Tort Talk. Dan will be assisted in the presentation by JP Cardoni of Exhibit A. 

This is a one hour CLE designed to provide the audience with a summary and analysis of the important cases handed down in Pennsylvania over the past year or so in personal injury civil litigation matters. Important decisions will be covered on the topics of Pleadings, Discovery, Expert Discovery, Trial Issues, Evidentiary Issues, Post-Kokan cases, Auto Law Update, General Liability, Premises Liability, Medical Malpractice, Legal Malpractice, and Products Liability. Practice Tips will be provided based upon the cases 

Written materials consisting of at least 100 pages of summaries of the important cases of the past year will be provided to the attendees. Do not miss this important and enlightening presentation.



REGISTRATION AND PAYMENT METHODS:



_______ Complete Form and mail with check (if applicable) payable to “PDI” to: Pennsylvania Defense Institute, P.O. Box 6099, Harrisburg, PA 17112 and e-mail Registration to cwasilefski@padefense.org or lgamby@padefense.org.



_______ Register online https://us06web.zoom.us/webinar/register/WN_6nqKJwHUTdyKESaf4tlF4g and mail a check (if applicable) payable to “PDI” at Pennsylvania Defense Institute, P.O. Box 6099, Harrisburg, PA 17112.



_______ Go to PDI website: www.padefense.org and register using for provided on Events Page and pay via PayPal.



Upon receipt of Registration and Fee, Registrant will receive information for joining Webinar and required submission following Webinar via e-mail.


(Please note that this is the same presentation that was recently presented to the Luzerne, Lackawanna and Wayne County Bar Associations.  If you attended those presentations, you cannot obtain CLE credit if you attend this same presentation again as per the CLE Rules).

Regular Use Exclusion Ruled Unenforceable by Pennsylvania Superior Court


 In a case appellate first impression of Rush v. Erie Insurance Exchange, No. 1443 EDA 2020 (Pa. Super. Oct. 22, 2021 Bender, P.J.E., Dubow, J., and Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a Northampton County Court of Common Pleas decision in a declaratory judgment action and held that the Regular Use Exclusion found in motor vehicle policies is unenforceable because it violates the Motor Vehicle Financial Responsibility Law (MVFRL).

The Regular Use Exclusion typically holds that a carrier need not provide UM or UIM coverage to a person who, unbeknownst to the carrier, is driving a vehicle that is regularly available for the use of that person.

In this Rush case, a police officer was injured while driving a police car that was regularly available for his use.

Outside of work, the Plaintiff police officer owned three vehicles at home which were covered by Erie Insurance.  The police officer had one Erie policy on one of the vehicles and another Erie policy that provided for stacked UIM coverage on the other two personal vehicles.

After securing a recovery against the drivers of the other vehicles in the accident, the police officer turned to Erie Insurance for UIM coverage under his personal vehicles.

Erie responded by asserting that the Regular Use Exclusion precluded coverage under the Erie Insurance policies because the police car that the Plaintiff was driving at the time of the accident was a vehicle that was regularly available for the Plaintiff's use.

The court noted that, absent the Regular Use Exclusion, there was no dispute that the Plaintiff police officer would have been entitled to the requested UIM coverage.

More specifically, the Plaintiff was injured in a car accident, he was legally entitled to recover from the underinsured tortfeasors, and Erie had never obtained a 75 Pa.C.S.A. Section 1731 written waiver or rejection of UIM coverage from the Plaintiff (rather, the Plaintiff had chosen to purchase stacked UIM coverage).

In ruling that the Regular Use Exclusion was unenforceable, the Superior Court agreed with the trial court's decision that the Regular Use Exclusion impermissibly limits the scope of UIM coverage required by Section 1731 by precluding coverage if an insured is injured while using a motor vehicle that the insured regularly uses but does not own.  

The Superior Court found that the Regular Use Exclusion conflicted with the broad language of Section 1731(c), which requires that UIM coverage to be afforded where an insured sustains injuries arising out of the "use of a motor vehicle."  See Op. at p. 7 [Emphasis in Opinion].

In other words, the Regular Use Exclusion was found by the courts in Rush to impermissibly limit Section 1731(c)'s mandate in favor of coverage to only those situations where an insured was injured in an accident involving a vehicle owned by the insured or only occasionally used by an insured.

Given that, in the eyes of the Rush Court, the Regular Use Exclusion conflicted with the clear and unambiguous language of Section 1731, the Exclusion was ruled unenforceable.

The Superior Court noted that, while it was affirming the trial court's decision, the Superior Court was doing so under a different rationale.  For a review of the trial court's decision which was based, in part, on an application of the rationale from the Gallagher v. GEICO Household Exclusion decsion as well as on an application of 75 Pa.C.S.A. 1734, please click this LINK to get to that Tort Talk post (which also has a Link to that trial court opinion).

Anyone wishing to review a copy of the Pennsylvania Superior Court's decision in Rush may click this LINK.

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

Source of image:  Photo by Ekaterina Bolovtsova from Pexels.com.


Friday, October 22, 2021

Tickets Still Available -- 13th Annual Lackawanna Pro Bono Gala


For more information about Lackawanna Pro Bono's Virtual Fundraising Gala and to purchase tickets and/or sponsorships, please click HERE.





 

Court Compels Deposition of Defendant Over Defendant's Covid-19 Pandemic Fears


In the case of Espinosa v. Luthercare, No. 2019-CV-02130 (C.P. Leb. Co. July 28, 2021 Charles, J.), Judge Bradford H. Charles of the Lebanon County Court of Common Pleas issued a decision ordering a witness to give a videotape deposition testimony without a mask but while sitting in a room without anyone else present. The court granted the Motion to Compel at issue filed by a Plaintiff against a Defendant in a professional negligence action against a doctor and a nursing facility in which it was alleged that the decedent’s death was allegedly caused by the Defendants’ failure to evaluate and treat the decedent.

In this matter, the Plaintiff sought the Defendant doctor’s deposition.

The Defendant doctor asserted that he should be permitted to wear a mask due to concerns over COVID-19 during the deposition.

The Plaintiff argued that the Defendant should not be allowed to wear a mask but that the Plaintiff would agree to videotaping the Defendant’s deposition such that the Defendant’s doctor would be the only person in the room.

In rendering his decision, Judge Charles reviewed the Pennsylvania case law that stressed the importance of the fact-finder in being able to assess the demeanor of the witness.

The court additionally noted that witnesses in its courtroom had never been allowed to wear masks while testifying during the pandemic, noting it was the court’s belief that the fact-finder should be able to see the witnesses clearly as they testify.

The court noted that the facial expressions of a witness contribute to the overall demeanor of the witness and that the demeanor of the witness was a touch stone of any credibility assessment.

As noted above, the court, while noting the seriousness of the COVID-19 concerns, found that the proposed process of having the witness unmasked and in a room by himself would reduce the risk of infection to almost a de minimus level.

Under the discretion granted to trial court judges to manage the discovery process, the court crafted an Order compelling the unmasked, videotape deposition of the Defendant.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 21, 2021).

Source of above image:  Photo by Anshu A on Unsplash.com.
 


dancummins@CumminsLaw.net
(570) 319-5899

Thursday, October 21, 2021

Motion for Summary Judgment Denied in Slip and Fall Case


In the case of Yearwood v. Mountain Valley Orthopedics, No. 10812-CV-2014 (C.P. Monroe Co. July 15, 2021 Higgins, Jr., J.), the court found genuine issues of material fact existed in a slip and fall case such that a Defendant’s Motion for Summary Judgment was denied.

In this matter, the Plaintiff alleged that he slipped and fell on the premises occupied by Mountain Valley Orthopedics.

While the Defendants asserted that they could not be held liable under Pennsylvania law as the Plaintiff slipped and fell during the course of an ongoing snowstorm, the Plaintiff’s countered with the argument that the cause of the icy patch upon which the Plaintiff fell was frozen water runoff from an overhead metal canopy.

The court noted that deposition testimony in the matter showed that runoff was a common problem at the premises. As such, the court noted that there was a genuine issue of material fact as to whether the icy patch was form by runoff, was the product of a premise snowstorm, or was the product of the snowstorm that was occurring on the same day of the incident.

The court also found issues of material fact with regards to the Defendants raising the Choice of Ways Doctrine. The court noted that the Plaintiff testified that he did not perceive the risk of the icy patch as it was covered by snow at the time of the incident. As such, the court found that issue of fact regarding the Plaintiff’s awareness of any risk barred the entry of summary judgment.

Finally, the court noted that there were issues of material fact relative to whether or not the Hills and Ridges Doctrine should be applied since there were issues of fact about the cause of the icy patch and whether the runoff from the canopy constituted a defect. For this additional reason, the Defendant’s Motion for Summary Judgment was denied.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 28, 2021).

Source of image:  Photo by Damian McCoig on Unsplash.com.


LOOKING TO TRY TO SETTLE YOUR SLIP OR TRIP AND FALL CASE

BRING YOUR CASE TO A CLOSE BEFORE THE END OF THE YEAR


dancummins@Cumminslaw.net
(570) 319-5899

Wednesday, October 20, 2021

Informed Consent Claim Dismissed Due to Lack of Expert Testimony


In the case of Bilinski v. Wills Eye Hospital, No. 2:16-CV-02728-GJP (E.D. Pa. Sept. 1, 2021 Pappert, J.), the court ruled a Plaintiff’s failure to produce expert medical testimony in support of a battery claim arising from lack of informed consent was fatal to the claims presented in that regard. 

However, the court otherwise noted that the Plaintiff was not required to produce expert medical testimony relative to an emotional distress claim as jurors could evaluate the emotional harm allegedly inflicted upon the Plaintiff due to the Plaintiff’s allegedly being subjected to a medical procedure against his will.

According to the Opinion, the Plaintiff reported to an eye surgeon for an evaluation to be fitted with cataract lenses. The Plaintiff alleged that the doctor evaluated both of the Plaintiff’s eyes but did not prescribe glasses.  Instead, the doctor allegedly grabbed the Plaintiff by the shirt telling him that he needed laser treatment immediately because his eyes were going to blow up.  The doctor then allegedly looked up at the ceiling and laughed. 

The Plaintiff alleged that the doctor physically grabbed the Plaintiff and led him to another room where a laser procedure was performed on the Plaintiff’s right eye. The Plaintiff alleged that the doctor, who was a surgery fellow, had not consulted with any attending physician and had completed the procedure without supervision and without the Plaintiff’s consent. All of these allegations were denied by the defense.

As noted, the court granted in part and denied in part the Defendants’ Motion to Dismiss. The court agreed with the Defendants that the Plaintiff’s failure to retain a medical expert was fatal to some of the claims presented.

The court also ruled that there was a genuine factual dispute as to whether or not the Plaintiff had consented to the laser procedure.

The court additionally noted that, while the Plaintiff was required to have produced expert medical testimony to prove that he sustained physical harm and suffering due to the alleged medical battery, the Plaintiff did not need an expert to support his claim for emotional distress as, in the court’s eyes, jurors could understand the emotional trauma of being subjected to a medical procedure without consent. As such, the Plaintiff’s emotional trauma claim was allowed to proceed.

The court otherwise ruled that the Plaintiff did need to produce an expert to support his lack of informed consent claim in order that the jury may be educated on what would constitute informed consent in a medical setting.

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


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

Source of image:  Photo by David Travis on Unsplash.com

Tuesday, October 19, 2021

LINK to Copy of J.C. v. Horizon Medical Corp. Decision From Yesterday's Post Regarding Statute of Limitations in Sex Abuse Civil Claims

In the case of J.C. v. Horizon Medical Corp., No. 20-CV-1222 (C.P. Lacka. Co. Oct. 8, 2021 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a number of issues relating to sex abuse claims in a civil litigation matter.

According to the Opinion, an allergist allegedly sexually abused a student in his medical practice office.

After Section 5533(b)(2) of the Judicial Code, 42 Pa. C.S.A., was amended effective November 26, 2019, to extend the applicable statute of limitations to the Plaintiff’s 30th birthday, the student filed a Complaint against the allergist and his corporate employer.

The corporate employer filed a demurrer asserting that the student’s claims were time barred since the statute of limitations period that was extended by the amendment go the law should only apply to the individual perpetrators and not their employers. The employer also argued that the amendment to the loss could not be applied retroactively to revive her lapsed claim.

Judge Nealon disagreed and noted that the plain language of §5533, and its legislative history, supported the conclusion that the expanded statute of limitations period was intended to apply not only to the individual offenders, but also their alleged institutional enablers and principals.

The court otherwise ruled on other issues that the Plaintiff’s allegations in support of her fraud and punitive damages claims were sufficiently specific to provide the allergist and his employer with adequate notice of the claims against which they must defend.

Judge Nealon also noted that allegations in the Plaintiff’s Complaint regarding alleged issues between the allergist and another student were relevant to the issue of whether the employer knew or should have known of the necessity for greater supervision and monitoring of the doctor. As such, Judge Nealon denied the argument that such allegations constituted scandalous or impertinent matter and allowed those allegations to proceed.

In the end, the court overruled all of the Preliminary Objections asserted.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Robert T. Moran of the Moran Law Group, LLC in Scranton, PA for bringing this case to my attention.

Source of image:  Photo by Edgar Moran on Unsplash.com.

Court Finds Extension of Statute of Limitations in Sex Abuse Civil Cases Also Applies to Related Employers of Perpetrators


In the case of J.C. v. Horizon Medical Corp., No. 20-CV-1222 (C.P. Lacka. Co. Oct. 8, 2021 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a number of issues relating to sex abuse claims in a civil litigation matter.

According to the Opinion, an allergist allegedly sexually abused a student in his medical practice office.

After Section 5533(b)(2) of the Judicial Code, 42 Pa. C.S.A., was amended effective November 26, 2019, to extend the applicable statute of limitations to the Plaintiff’s 30th birthday, the student filed a Complaint against the allergist and his corporate employer.

The corporate employer filed a demurrer asserting that the student’s claims were time barred since the statute of limitations period that was extended by the amendment go the law should only apply to the individual perpetrators and not their employers. The employer also argued that the amendment to the loss could not be applied retroactively to revive her lapsed claim.

Judge Nealon disagreed and noted that the plain language of §5533, and its legislative history, supported the conclusion that the expanded statute of limitations period was intended to apply not only to the individual offenders, but also their alleged institutional enablers and principals.

The court otherwise ruled on other issues that the Plaintiff’s allegations in support of her fraud and punitive damages claims were sufficiently specific to provide the allergist and his employer with adequate notice of the claims against which they must defend.

Judge Nealon also noted that allegations in the Plaintiff’s Complaint regarding alleged issues between the allergist and another student were relevant to the issue of whether the employer knew or should have known of the necessity for greater supervision and monitoring of the doctor. As such, Judge Nealon denied the argument that such allegations constituted scandalous or impertinent matter and allowed those allegations to proceed.

In the end, the court overruled all of the Preliminary Objections asserted.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Robert T. Moran of the Moran Law Group, LLC in Scranton, PA for bringing this case to my attention.

Source of image:  Photo by Edgar Moran on Unsplash.com.

Monday, October 18, 2021

Court Dismisses UIM Bad Faith Claims Based Upon Disagreements Over Value of the Claim



In the case of DeLuca v. United Financial Cas. Co., No. 3:19-CV-01661 (M.D. Pa. Sept. 22, 2021 Wilson, J.), the court granted summary judgment to the carrier in this uninsured motorist bad faith claim where the claim was based, in part, on the fact that the settlement offer was a small fraction of the demand.

The court ruled that the record before it only revealed a valuation dispute. The court additionally noted that the records confirmed that the insurance company had conducted a detailed and timely investigation into the claims presented before making its settlement offers, whatever the size of the offers were during the course of the matter.

According to the Opinion, the UM policy had a $300,000.00 limit, which was demanded. During the course of the matter, the carrier offered a small fraction of that amount to settle, while stating that its investigation was ongoing.

The record revealed that the carrier had initially offered the Plaintiff $7,500.00 to settle the UM claim based upon the information secured as of that time. After considering that offer, the insured demanded the policy limits, which demand the carrier reviewed. After a subsequent discussion, the insured then lowered her demand to $100,000.00. However, a month later, the demand was raised back to $300,000.00.

The carrier continued to negotiate and offered $9,000.00 which was rejected. Thereafter, additional medical records were produced, which were reviewed by the carrier, resulting in an increase of the settlement offer to $11,500.00. The Plaintiff’s demand remained at the $300,000.00 policy limits.

Thereafter, additional medical care was completed and medical records were provided to the carrier. The carrier reviewed those additional records. There were no additional demands before suit was filed.

Judge Wilson noted that the Third Circuit and the Middle Federal District Court of Pennsylvania have made clear that disagreements over the value of an insured’s claim and failing to merely offer the policy limits does not equate to bad faith, without more, on the part of the carrier. In the end, Judge Wilson found that the Plaintiff had not provided any evidence that would cause the court to find that the carrier did not have a reasonable basis for denying the benefits claimed.

After reviewing the current status of bad faith law in Pennsylvania, the court granted summary judgment.

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

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

Federal Court Dismisses Bad Faith Claims Asserted Directly Against to Claims Adjusters in a UIM Case


In the case of Holohan v. Mid-Century Ins. Co., No. CV 20-6903 (E.D. Pa. Sept. 27, 2021 Tucker, J.), the court denied bad faith claims asserted by a Plaintiff against two (2) automobile insurance adjusters. Other bad faith claims asserted against the carrier were allowed to proceed.

According to the Opinion, this case involved claims against an automobile insurance carrier regarding two (2) distinct motor vehicle accidents. The insured husband alleged personal injuries as a result of a first accident that were exacerbated in a second accident. The Plaintiff alleged that he was underpaid on the first loss for medical benefits and asserted that his UIM claim was mishandled relative to the second accident.

The Plaintiff brought various claims for breach of contract and bad faith as well as claims under the Unfair Trade Practices and Consumer Protection Law against the two (2) individual claims representatives.

The Defendant carrier filed a Motion to Dismiss the claims against it as well as the individual claims representatives.

The court found that the claims against the individual adjusters failed after finding that, while insurance adjusters have a duty to their principals and should conduct investigations in a proper manner, this duty does not create a contractual obligation between the adjuster and the insured. Rather, only the principal, that is, the insurance company, could have such contractual liability.

The court dismissed the claims against the individual adjusters for these reasons and given that there were no facts pled by the Complaint to support any claims of deceptive or fraudulent conduct under the Unfair Trade Practices and Consumer Protection Law.

The court did allow the statutory bad faith claims asserted against the carrier to proceed after finding that the Plaintiff had stated sufficient factual allegations in support of the same. In particular, the Plaintiff alleged, in part, that the carrier and one of the adjusters conducted seven (7) peer reviews with respect to the Plaintiff’s treatment in an effort to challenge causation and deny benefits.

The court otherwise dismissed the Plaintiff’s common law bad faith claims after finding that those claims were subsumed in the breach of contract claims.

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


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

Source of image:  Photo by Adolfo Felix on Unsplash.com.

Friday, October 15, 2021

Please Consider Attending These Upcoming CLEs

 Below is a listing of upcoming virtual and live CLEs that I am participating in as a presenter.  Should you need CLE credits, I am hoping you might consider these CLEs.


October 22 - 10 a.m. - Wayne County Bench Bar Conference (LIVE ATTENDANCE ONLY, BUT MY PRESENTATION WILL BE ZOOMED IN TO THE EVENT)

"Back to School With Tort Talk:  A Civil Litigation Update" (encore presentation)

A review of the notable civil litigation decisions from around the Commonwealth of Pennsylvania as highlighted on the Tort Talk blog presented by Daniel E. Cummins of Cummins Law.

This LIVE CLE will take place at Tick Toc's On the Terrace, 760 Terrace Street, Honesdale, PA.  Although this all day CLE is a live event my presentation at 10 a.m. will be via Zoom as I am presenting at the Lackawnna Bench Bar Conference in Scranton on the same day.

Non-members are invited and welcome to attend.  The cost to attend is $50.  The price includes a light breakfast, lunch and the CLE credits.

To review the full Agenda of courses for this event and/or to register, please email the Chairman of the Wayne County Bench Bar, Attorney Joseph Rydzewski at joerr@poconolawyers.net.  Payment must be made when you arrive at the CLE.  



October 22 - Lackawanna County Bench Bar Conference (VIRTUAL)

"Best Litigation Practices in the Covid Era"

Tips for improving your practice while utilizing advanced commuication technology such as Zoom. Presented by Daniel E. Cummins of Cummins Law, Paul Oven of Dougherty, Leventhal & Price, and JP Cardoni and Leah Kane of Exhibit A. Program to be Moderated by Thomas P. Cummings of Dougherty, Leventhal & Price.

Free to Lackawanna County Bar Members.

Please contact Kaitlin McDonough of the Bar Association at kmcdonough@lackawannabar.org to register.  Must register by Friday, October 15, 2021.


October 29 - Pennsylvania Defense Institute (Non-members welcome)(VIRTUAL)

"Back to School With Tort Talk:  A Civil Litigation Update" (encore presentation)

A review of the notable civil litigation decisions from around the Commonwealth of Pennsylvania as highlighted on the Tort Talk blog presented by Daniel E. Cummins of Cummins Law.

Free for PDI Members

Non-Members welcome and invited to attend; Fee for Non-Members is $35.00.


REGISTRATION AND PAYMENT METHODS:

Complete Form and mail with check (if applicable) payable to “PDI” to: Pennsylvania Defense Institute, P.O. Box 6099, Harrisburg, PA 17112 and e-mail Registration to cwasilefski@padefense.org or lgamby@padefense.org.

Register online https://us06web.zoom.us/webinar/register/WN_6nqKJwHUTdyKESaf4tlF4g and mail a check (if applicable) payable to “PDI” at Pennsylvania Defense Institute, P.O. Box 6099, Harrisburg, PA 17112.

Go to PDI website: www.padefense.org and register using for provided on Events Page and pay via PayPal.

Upon receipt of Registration and Fee, Registrant will receive information for joining Webinar and required submission following Webinar via e-mail.


November 4 - 1:15 p.m. - Luzerne County Bench Bar Conference (LIVE)

"Using Social Media as a Weapon for the Plaintiff and the Defendant"

Attorney Daniel E. Cummins of Cummins Law and Attorney Jamie Anzalone of Anzalone Law will co-present and provide an overview of the law of Pennsylvania regarding the discoverability and admissibility of social media evidence in civil litigation matters.  The presenters will also review how social media evidence has been used for the benefit of Plaintiffs and Defendants at trial.

The Fee to register for Wilkes-Barre Law Library Association Members is $49 if paid by October 26th.  After that date the Fee is $69.00.

Non-members welcome and invited to attend.  Fee for Non-Members is $100 if paid by October 26th..  After October 26th, that fee for non-members jumps to $125.

You can register for this CLE through the Bar Association's website HERE.







Time To Schedule Your Year-End Mediation


SCHEDULE YOUR END-OF-THE YEAR MEDIATION NOW

BRING YOUR CASE TO A CLOSE


 

CALL (570) 319-5899

or

EMAIL dancummins@Cumminslaw.net

Thursday, October 14, 2021

Trial Court Addresses Peer Review Privilege Claimed by Hospital


In the case of Limprevel v. Children’s Hospital of Philadelphia, No. 18082309 (C.P. Phila. Co. July 19, 2021 Foglietta, J.), the court found that a Defendant hospital failed to demonstrate that documents identified in its privileged log in this medical malpractice case were protected under the Peer Review Protection Act where the evidence illustrated that those documents were not in fact produced for a peer review.

In this Rule 1925 Opinion, the trial court recommended that the Superior Court affirm its Discovery Order.

According to the Opinion, this medical malpractice case arose out of an outbreak of an adenovirus in the neonatal intensive care unit in the Children’s Hospital of Philadelphia in 2016. The hospital medical director began an investigation into the outbreak. 

In this case, the Plaintiff sought certain discovery from the hospital, including materials relative to the notice provided to the medical director after receiving notification of the outbreak. 

The trial court ordered the hospital to produce certain documents and unredacted versions of other documents. The hospital filed this appeal, which prompted this Rule 1925 Opinion by the trial court. 

As stated, the court ruled that the documents at issue were discoverable because the hospital had failed to establish that the documents at issue were created for purposes of a peer review. As such, the court found that the peer review privilege did not apply.

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


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


Source of image:  Photo by Karolina Grabowska on Unsplash.com.

Notable Pennsylvania Supreme Court Decision on Scope of Peer Review Privilege (From August, 2021)


In the case of Leadbitter v. Keystone Anesthesia Consultants, No. 19 WAP 2020 (Pa. Aug. 17, 2021)(Op. by Saylor, J.)(Wecht, J., Concurring), the Pennsylvania Supreme Court issued a long-awaited decision relative to the scope of the Peer Review Protection Act.

In its decision, the court held that a hospital’s credentials committee qualified as a “review committee” for purposes of the Peer Review Protection Act to the extent it undertook peer reviews.

The Pennsylvania Supreme Court additionally held that the Federal Healthcare Quality and Improvement Act of 1986 protected from disclosure the responses provided by the National Practitioner Databank to queries submitted to it, regardless of any contrary state law.

This matter arose out of a medical malpractice action. The Plaintiff sought the credentialing file of a certain doctor.  The Plaintiff was seeking this information to support their claim that the hospital’s credentialing was inadequate and allegedly led to the injuries sustained by the Plaintiff during surgery.

During the course of discovery, the hospital, while providing portions of the credentialing file, refused to disclose certain documents that contained evaluations prepared by other practitioners of the Defendant doctor’s performance, as well as responses to queries submitted to the National Practitioner Databank.

After the Plaintiffs filed a Motion to Compel in this regard, these issues worked their way up the appellate ladder to the Pennsylvania Supreme Court’s decision summarized here.

The majority Opinion in the Pennsylvania Supreme Court Ledbitter noted that the Peer Review Protection Act privilege only applies to a “review committee,” which is a committee engaging in peer review. However, the Pennsylvania Supreme Court agreed with the hospital that a credentials committee is a “review committee” to the extent that it reviewed the quality and efficiency of care provided by a healthcare practitioner.

On the Federal Healthcare Quality and Improvement Act issues, the Pennsylvania Supreme Court found that the language of the statute and the purpose of the statute supported the hospital’s position that responses to the queries submitted to the National Practitioner Databank are privileged and that federal privilege trumps state law that would otherwise permit disclosure of that information.

Anyone wishing to review a copy of the Majority Opinion for this decision may click this LINK.  The Concurring Opinion by Justice Wecht can be viewed HERE.


I send thanks to Attorney Laura A. Endler, counsel for the Geisinger Health System, for bringing this case to my attention.


Source of image:  Photo by Hush Naidoo on Unsplash.com.

Wednesday, October 13, 2021

Please Consider Supporting a Good Cause -- Tickets on Sale Now


For more information about Lackawanna Pro Bono's Virtual Fundraising Gala and to purchase tickets and/or sponsorships, please click HERE.




Tuesday, October 12, 2021

Superior Court Upholds Transfer of Venue Under Doctrine of Forum Non Conveniens

Headed Back to Reading


In the case of Doe v. Bright Horizons Children’s Center, LLC, No. 1733 EDA 2020 (Pa. Super. Sept 10, 2021 Bowes, J. and Musmanno, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court affirmed a trial court’s granting of a request to transfer a case under the doctrine of forum non conveniens.

The Plaintiffs had filed suit in Philadelphia County on claims that their child had allegedly been abused at a daycare center located in Reading, Berks County, Pennsylvania.  

After reviewing the record before the court, the appellate court agreed that all relevant actions took place in Berks County over a two (2) year period. The court additionally noted that none of the parties or witnesses were located in Philadelphia where the case was filed.

The court otherwise noted that, given the logistical issues that a Philadelphia trial would entail, the trial court did not abuse its discretion in transferring venue.

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.

Monday, October 11, 2021

Upcoming CLE Presentations

 

Below is a listing of upcoming virtual and live CLEs that I am participating in as a presenter.  Should you need CLE credits, I am hoping you might consider these CLEs.


October 22 - 10 a.m. - Wayne County Bench Bar Conference (LIVE ATTENDANCE ONLY, BUT MY PRESENTATION WILL BE ZOOMED IN TO THE EVENT)

"Back to School With Tort Talk:  A Civil Litigation Update" (encore presentation)

A review of the notable civil litigation decisions from around the Commonwealth of Pennsylvania as highlighted on the Tort Talk blog presented by Daniel E. Cummins of Cummins Law.

This LIVE CLE will take place at Tick Toc's On the Terrace, 760 Terrace Street, Honesdale, PA.  Although this all day CLE is a live event my presentation at 10 a.m. will be via Zoom as I am presenting at the Lackawnna Bench Bar Conference in Scranton on the same day.

Non-members are invited and welcome to attend.  The cost to attend is $50.  The price includes a light breakfast, lunch and the CLE credits.

To review the full Agenda of courses for this event and/or to register, please email the Chairman of the Wayne County Bench Bar, Attorney Joseph Rydzewski at joerr@poconolawyers.net.  Payment must be made when you arrive at the CLE.  


October 22 - Lackawanna County Bench Bar Conference (VIRTUAL)

"Best Litigation Practices in the Covid Era"

Tips for improving your practice while utilizing advanced commuication technology such as Zoom. Presented by Daniel E. Cummins of Cummins Law, Paul Oven of Dougherty, Leventhal & Price, and JP Cardoni and Leah Kane of Exhibit A. Program to be Moderated by Thomas P. Cummings of Dougherty, Leventhal & Price.  This particular presentation of the Bench Bar will be at 2:15 p.m.

Free to Lackawanna County Bar Members.

Please contact Kaitlin McDonough of the Bar Association at kmcdonough@lackawannabar.org to register.  Must register by Friday, October 15, 2021.


October 29 - Noon - Pennsylvania Defense Institute (Non-members welcome)(VIRTUAL)

"Back to School With Tort Talk:  A Civil Litigation Update" (encore presentation)

A review of the notable civil litigation decisions from around the Commonwealth of Pennsylvania as highlighted on the Tort Talk blog presented by Daniel E. Cummins of Cummins Law.

Free for PDI Members

Non-Members welcome and invited to attend; Fee for Non-Members is $35.00.


REGISTRATION AND PAYMENT METHODS:

Complete Form and mail with check (if applicable) payable to “PDI” to: Pennsylvania Defense Institute, P.O. Box 6099, Harrisburg, PA 17112 and e-mail Registration to cwasilefski@padefense.org or lgamby@padefense.org.

Register online https://us06web.zoom.us/webinar/register/WN_6nqKJwHUTdyKESaf4tlF4g and mail a check (if applicable) payable to “PDI” at Pennsylvania Defense Institute, P.O. Box 6099, Harrisburg, PA 17112.

Go to PDI website: www.padefense.org and register using for provided on Events Page and pay via PayPal.

Upon receipt of Registration and Fee, Registrant will receive information for joining Webinar and required submission following Webinar via e-mail.


November 4 - Luzerne County Bench Bar Conference (LIVE)

"Using Social Media as a Weapon for the Plaintiff and the Defendant"

Attorney Daniel E. Cummins of Cummins Law and Attorney Jamie Anzalone of Anzalone Law will co-present and provide an overview of the law of Pennsylvania regarding the discoverability and admissibility of social media evidence in civil litigation matters.  The presenters will also review how social media evidence has been used for the benefit of Plaintiffs and Defendants at trial.  This particular presentation will be at 1:15 p.m.

The Fee to register for Wilkes-Barre Law Library Association Members is $49 if paid by October 26th.  After that date the Fee is $69.00.

Non-members welcome and invited to attend.  Fee for Non-Members is $100 if paid by October 26th..  After October 26th, that fee for non-members jumps to $125.

You can register for this CLE through the Bar Association's website HERE.






Friday, October 8, 2021

Latest Stacking Case from Pennsylvania Superior Court


In the case of Franks v. State Farm Mut. Auto. Ins. Co., No. 2784 EDA 2019 (Pa. Super. Sept. 24, 2021) (en banc) (Op. by Lazarus, J.) (dissenting Op. by McCaffery, J.), a majority of an en banc Pennsylvania Superior Court panel reversed a prior three (3) judge Pennsylvania Superior Court’s panel’s decision and held that the removal of a vehicle from a policy does not constitute a purchase of coverage that requires the insured to be provided the opportunity to wave stacking in writing at the time of that removal of the vehicle.

After providing a detailed review of Pennsylvania jurisprudence on the issue of stacking under the trilogy of Sackett cases, all of which involved the issue of adding or replacing vehicles on auto insurance policies, the Court in this Franks case noted that there did not appear to be any prior decisions covering the facts of this case which involved the removal of a vehicle from a multi-vehicle policy.

In the end, the Court in this case found that the deletion of a vehicle from the policy could not be viewed in any way as a "purchase" of coverage as that term is utilized under 75 Pa.C.S.A. Section 1738 so as to trigger any need to secure new written stacking waivers.

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


I send thanks to Attorney Thomas Helbig for bringing this case to my attention via an email blast to all of his contacts.

Source of image:  Photo by James Sutton on Unsplash.com.

Thursday, October 7, 2021

UM Bad Faith Claim Regarding Disagreement Over Value of Claim Dismissed


In the case of Brown v. LM Gen. Ins. Co., No. 21-2134 (E.D. Pa. Aug. 24, 2021 Pratter, J.), the court granted a Defendant carrier’s Motion to Dismiss a Plaintiff’s bad faith claim in a UM matter after finding that the Plaintiff could not sustain a bad faith claim against the insurance company where the allegations in her Amended Complaint boiled down to a disagreement between the parties over the amount of a settlement for uninsured motorist benefits.

In this matter, the Plaintiff had alleged that the carrier, among other things, failed to conduct a medical evaluation, review the Plaintiff’s medical records, or otherwise invest the claims presented prior to offering a settlement. The Plaintiff also claimed that the carrier was dilatory in its claims handling practices when it allegedly mispresented that it would resolve the claim and then continuously and endlessly requested documentation before ignoring that documentation.

The defense argued that the Plaintiff had simply recycled the same allegations as in the initial pleading. The carrier also asserted that the Amended Complaint again came down to a claim by the Plaintiff that, because the carrier allegedly failed to offer an amount to which the Plaintiff believed she was entitled, the carrier allegedly acted in bad faith. The carrier also emphasized that there was a serious dispute in this case as to whether or not the Plaintiff was even entitled to coverage under the applicable policy.

After reviewing the current status of Pennsylvania law regarding bad faith claims, the court found that, although the Plaintiff’s Amended Complaint listed thirty-eight (38) ways in which Liberty Mutual allegedly acted in bad faith, the list was a list of conclusions, not facts. The court found that there were no details offered by the Plaintiff that would describe or was supposedly unfair about the process.

Relative to the claim that the carrier acted in a dilatory fashion, the court noted that the Plaintiff failed to meet her requirement of asserting specific facts to support that allegation such as the number of months between a demand and a settlement offer. 

The court noted that, in the end, the Amended Complaint simply reflected a disagreement between the parties over the amount of an appropriate settlement of the claims presented. The court reiterated a well-settled law that an insured must do more than allege an allegedly “low-ball” offer.

The court also emphasized that “a policy limit- -as its name suggests- -is the theoretical maximum that an insured could recover. ‘It is not the de fecto value of a claim.’” See Op. at p. 5.

Given that the Plaintiff had failed to support her claim for bad faith with facts, this claim was dismissed with prejudice.

The court also addressed the carrier’s Motion to Strike all references in the Plaintiff’s Complaint that the carrier’s conduct was reckless, wanton, and willful relative to the declaratory judgment and breach of contract claims.

The court found that, in order to prevail on a Motion to Strike allegations, the allegations must not only be unrelated to the claim presented but the moving party must show how the moving party will be prejudiced if the allegations are allowed to remain in the pleadings.

Given that the carrier failed to explain how it will be prejudiced in this matter if the challenged allegations are not stricken, the court denied the Motion to Strike. The court also noted that a bald assertion that the carrier acted willfully or recklessly is only a legal conclusion that the court need not accept as true.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 17, 2021).

Wednesday, October 6, 2021

Motion For Summary Judgment Entered in Favor of PennDOT in Pothole Case



In the case of Teixeira v. Com. of Penna., Dept. of Transp., No. 7917-CIVIL-2019 (C.P. Monroe Co. Aug. 5, 2021 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted the Defendant’s Motion for Summary Judgment in a matter involving a motorcycle accident.

The Plaintiff motorcyclist alleges that he hit a large pothole on Interstate Route 80 in Monroe County as a result of which he crashed and sustained multiple injuries.

The court noted that the issue before it concerned the pothole exception to the sovereign immunity allowed under the Political Subdivision Tort Claims Act, 42 Pa. C.S.A. §8522(b)(5). The Commonwealth of Pennsylvania asserted that it was protected from civil suits based in tort under the doctrine of sovereign immunity unless one of the ten narrow exceptions to the law apply. As noted, the Plaintiff was arguing the potholes and other dangerous conditions exception to the Act.

The court noted that a Plaintiff seeking to utilize this exception must prove that there was sufficient prior written notice provided to the Commonwealth of Pennsylvania of the allegedly dangerous condition.

Here, the court accepted PennDOT’s argument that the Plaintiff failed to show that there was actual written notice provided to PennDOT of the pothole in question. 

The court noted that, while the record revealed that various complaints were called in by members of the public and reduced to writing by the PennDOT call center, those complaints identified problems with Route 80 in general and varied widely in terms of complaints with respect to the area where potholes existed. 

The court additionally noted that nothing was submitted in actual writing by the actual complainants themselves to PennDOT. 

The court additionally confirmed that none of the complaints identified in the records reference the exact pothole that was involved in this accident. Nor were any of the complaints specific to the mile marker at the location of the accident. Rather, the complaints were generally applied to Route 80 which stretches at least 20 miles through Monroe County.

As such the court found no genuine issue of material fact was presented in this case on the question at issue of whether any actual notice of the pothole in question was provided to PennDOT prior to the subject incident. As such, the court granted PennDOT’s Motion for Summary Judgment.


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

Tuesday, October 5, 2021

Please Consider Attending 13th Annual Virtual Fundraising Gala

 



Motion To Bifurcate Lackawanna County Post-Koken Trial Denied


In the case of Nebesky v. Pagnotti, No. 2019-CV-3170 (C.P. Lacka. Co. Sept 15, 2021 Gibbons, J.), the court addressed a Motion to Bifurcate the Trial in this post-Koken automobile accident litigation. After reviewing Pa. R.C.P. 213(b) and after noting that the parties had cited two (2) court decisions at the trial court level from around the Commonwealth, this court chose to deny the Motion to Bifurcate.

Judge Gibbons noted that he believed that the attorneys involved would be able to outline their respective positions on the third party negligence claims and the UIM breach of contract claims to the jury in such a way as to avoid any confusion or prejudice. The court additionally felt that any potential prejudice to the third party Defendant in having an insurance company as a Co-Defendant could be rooted out in Voir Dire.

Judge James A. Gibbons
Lackawanna County

The Court also noted that the jury would be properly instructed on the law applicable to the negligence claims as well as the breach of contract claims.

Judge Gibbons also noted that he wished to remain consistent with the prior decisions out of Lackawanna County denying Motions to Bifurcate in post-Koken matters.


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