Thursday, May 26, 2022

Summary Judgment Denied for Issues of Fact In Wal-Mart Trip and Fall Case



In the case of Noga v. Wal-Mart Stores East, L.P., No. 10170 of 2019, C.A. (C.P. Lawr. Co. March 24, 2022 Hodge, J.), the court denied a Defendant store’s Motion for Summary Judgment in a trip and fall case.

The Defendant filed a Motion for Summary Judgment asserting that Plaintiff was speculating as to the cause of the Plaintiff’s fall in that the Plaintiff had allegedly not provided any evidence that any alleged defect in the sidewalk was the cause of her fall.

The court found that the Defendant was not entitled to summary judgment as there was sufficient evidence in the records, including a store manager’s deposition testimony regarding an alleged crack in the sidewalk where the Plaintiff fell, for a jury to conclude that the crack in the pavement was the cause of the Plaintiff’s fall.

As such, 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 (May 10, 2022).

Wednesday, May 25, 2022

Pennsylvania Superior Court Upholds Trial Court's Denial of a Defendant's Petition to Open a Default Judgment After Entry of $23 Million Dollar Verdict


In the case of Roy v. Rue, No. 1598 EDA 2021 (Pa. Super. April 12, 2022 Lazarus, J., Kunselman, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s denial of a Defendant’s Petition to Open and Strike a Default Judgment entered against him by the Plaintiff.

This lawsuit arose out of a fight that occurred at a restaurant that resulted in eventually fatal injuries to the Plaintiff’s decedent. The Plaintiff filed suit against a restaurant and the assailant. The issues in this case pertain to the entry of a default judgment against the assailant.

The restaurant defendant settled out of the case.    

The case eventually went to trial on damages and a verdict was entered against the assailant in an amount in excess of $23 million dollars.

Thereafter, the assailant filed a Petition to Open the Default Judgment. The assailant asserted that he was incarcerated when the trial court held the assessment of damages trial and that he did not appear because he allegedly did not have notice of the trial. The court noted that the docket confirmed that the Prothonotary provided notice to the Defendant of the trial at the Defendant’s home address, at which time the Defendant was in prison.

The Defendant additionally asserted that he was not provided with service of the original process. 

The Defendant also argued that he acted promptly once he learned of the default judgment and that he allegedly had a meritorious defense to the claims in the lawsuit, that being that the Defendant allegedly acted in self-defense.

The Pennsylvania Superior Court ruled that the trial court properly denied the Defendant’s Petition to Open or Strike the Default Judgment where the Defendant failed to show any defects with regards to the return of service of the Complaint, with regards to the 10-Day Notice of Intent to File a Default Judgment, or with respect to the Notice regarding the trial date on the assessment of damages. 

The court additionally found that the Defendant’s Petition was not timely filed.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 26, 2022).


Friday, May 20, 2022

Court Addresses Forum Selection Clause in a Post-Koken UIM Case As Well As the Validity of Allegations of Recklessness



In the case of Coello v. Fitzgerald and Erie Insurance Exchange, No. 7019-CV-2021 (C.P. Monroe Co. Feb. 11, 2022 Zulick, J.), the court addressed issued of proper venue in a post-Koken motor vehicle accident litigation. 

Relative to the Preliminary Objections filed by the UIM carrier Defendant asserting improper venue, the court noted that, although venue is proper in Monroe County under Pa. R.C.P. 2179, which allows for an injured party to bring a civil action against an insurance company/ corporation in a county where that company or corporation regularly conducts business, in this matter, Erie Insurance was relying upon a forum selection clause in the parties’ insurance contract.

Under that forum selection clause, the parties agreed that any suit to enforce the terms of the policy would be filed in the county of the Plaintiff’s legal domicile at the time the suit was filed. The record in this case confirmed that the Plaintiff alleged in his Complaint that he resided in Scranton, Lackawanna County.

The court upheld the forum selection clause and carved out the UIM case and transferred that portion of the case to Lackawanna County but kept the Plaintiff's case against the tortfeasor in Monroe County.

As such, the UIM carrier Defendant’s Preliminary Objections with regards to venue was sustained.

In so ruling, the court found that the Plaintiff’s argument that it would be unreasonable to put him to the expense of securing a medical expert for two (2) separate trials did not outweigh the contract provision on venue.

Judge Arthur L. Zulick
Monroe County



In his Opinion, Judge Arthur L. Zulick of the Monroe County Court of Common Pleas also addressed the tortfeasor Defendant’s demurrer against the Plaintiff’s claims against punitive damages. The tortfeasor Defendant asserted that the Plaintiff failed to allege sufficient facts to support such a claim and that the Plaintiff had only merely alleged that a motor vehicle collision had occurred.

Relative to the allegations of recklessness, Judge Zulick referred to Rule of Civil Procedure 1019(b), which provides that conditions of the mind may be averred generally. The court noted that, under the case of Archbald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009), an allegation of recklessness is an allegation as to a condition of the mind which could be averred generally.

As such, the court denied the Defendant’s demurrer to the Plaintiff’s claim for punitive damages and noted that such a decision should be left to the jury in terms of whether the Plaintiff’s case met the burden of proof in this regard.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 12, 2022).


Tuesday, May 17, 2022

UM Bad Faith Claim Dismissed Where No Breach of Contract Claim Present



In the case of Nye v. State Farm Mut. Auto. Ins. Co., No. 3:21-CV-01029 (M.D. Pa. March 30, 2022 Wilson, J.), the court addressed a Motion to Dismiss an uninsured motorist claim and bad faith claim.

With regard to the Plaintiff’s pleading of a claim for uninsured motorists benefits in the Complaint, the defense moved to dismiss given that the Plaintiff had failed to plead the identity of the tortfeasor driver and/or whether that driver was in fact uninsured.

The court found that there was sufficient information from which the Plaintiff could have made this determination and included it in the Complaint. As such, this portion of the Motion to Dismiss was granted but the Plaintiff was allowed leave to amend the Complaint to add the missing details.

With regards to the bad faith claim, the court first observed that there must be some predicate claim against the insurance policy even if the bad faith claim is a distinct claim. More specifically, the court stated that “there must be a predicate contract claim in order for a §8371 claim to proceed.” 

The court also noted that, while the predicate claim need not be tried together with the §8371 claim, the predicate cause of action must be ripe in order for a bad faith claim under §8371 to be recognized.

Given that the court had dismissed the breach of contract claim relative to the uninsured motorist claim due to the insufficiency of the pleading on that claim, the court found that the predicate cause of action otherwise required to accompany the §8371 bad faith claim was missing.

As such, the bad faith claim was also dismissed but without prejudice, in light of the court allowing the Plaintiff the right to file an Amended Complaint relative to the breach of contract claim.

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


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

Pennsylvania Superior Court Addresses UIM Coverage Issues Regarding Discrepancies In the Policy Documents



In the case of Hartford Fire Ins. Co. v. Davis, No. 310 MDA 2021 (Pa. Super. May 9, 2022 Olson, J, Kunselman, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court overturned a trial court’s entry of summary judgment in favor of a carrier in a UIM arbitration matter on issues of whether or not the subject automobile insurance policy had certain UIM coverages available.

This case arose out of a motor vehicle accident that occurred back in 2005. The Plaintiff was injured while operating a vehicle owned by his employer.

The vehicle operated by the Plaintiff was insured by Hartford under a commercial automobile insurance policy. During the annual renewals of the policy up through the time of the Plaintiff’s accident, it has been the practice of the insurance company to obtain a UIM coverage rejection form for each policy term renewal. However, the carrier failed to do so for the policy in question.

At the time of the subject accident, a Pennsylvania UIM coverage endorsement was appended to the subject policy although the policy did not specify any limit of UIM coverage for Pennsylvania.

In entering summary judgment, the trial court found that the UIM policy issued by Hartford for the subject year of the accident did not specify a limit of UIM coverage for Pennsylvania and that, therefore, the coverage limit was $0 and the Pennsylvania UIM endorsement attached to the policy was a nullity. The trial court further held that the employer as effectively waived UIM coverage in Pennsylvania by executing a rejection of UIM protection form a few years before the accident.

On appeal, the Pennsylvania Superior Court found that the trial court erred in finding that the subject policy of insurance issued by the Hartford did not provide for UIM coverage at the time of the accident despite the fact that a UIM coverage endorsement was attached to the policy. The Pennsylvania Superior Court also agreed with the Plaintiff that the trial court had erred in concluding that the rejection of UIM protection form executed by the employer prior to the accident was applicable to the subject policy.

The Superior Court based its decision, in part, on 75 Pa. C.S.A. §1731, which mandates that an insurance company issuing a policy in the Commonwealth of Pennsylvania must provide UM/UIM coverage equal to the bodily injury liability coverage, unless the insured validly rejects UM/UIM coverage or validly requests lower limits pursuant to §1734.

Accordingly, where, as here, the subject policy of insurance provided $2 million dollars in liability coverage at the time of the accident, absent a valid and specific rejection of UIM coverage, the court found that the Pennsylvania UIM coverage limit in this case would also be $2 million dollars. Elsewhere in the Opinion, it was indicated that the Plaintiff had previously secured an Arbitration Award in excess of $2 million dollars on the case presented.

The trial court’s decision was vacated and the case was remanded for additional proceedings consistent with this Opinion.

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


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


Monday, May 16, 2022

Bad Faith Claim Allowed to Proceed On A Homeowner's Claim From a Fire Loss


In the case of Jaworowski v. Erie Ins. Co., No. 4250-Civil-2020 (C.P. Monroe Co. March 30, 2022 Williamson, J.), the court denied a Motion to Dismiss a Plaintiff’s bad faith claim against the carrier.

This matter arose under a homeowner's policy relative to an alleged fire loss.

According to the Opinion, the carrier claimed that it had legitimate grounds to deny the Plaintiff coverage based upon a lack of residency. The court noted that the evidence in the record made the issue of the Plaintiff’s claimed residency questionable but not free from all doubt.

As such, the court denied the Defendant’s Motion for Partial Summary Judgment.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 10, 2022).

Source of Image:  Photo by Maxim Tajer on www.unsplash.com.

Thursday, May 12, 2022

Trial Court Directs Defense Forensic Economist Expert To Issue An Amended Expert Report To Comport With Law on Damages or Be Precluded From Testifying At Trial


In the case of Van Auken v. Saud, No. 20-CV-4717 (C.P. Lacka. Co. April 29, 2022 Nealon, J.), the court addressed several Motion In Limine issues in a medical malpractice action.

This medical malpractice action arose out of a claim against an emergency room physician who allegedly failed to diagnose and treat a minor’s aortic dissection which caused the minor’s death one day later.

The Plaintiff’s filed a wrongful death action seeking damages for their own losses and, in that regard, the parents advanced a claim for the pecuniary value of the services that the decedent would have provided to them. In the survival action, the decedent’s estate sought to recover damages for the decedent’s loss of her future earnings, minus her personal maintenance expenses, during her estimated work life expectancy.

The Plaintiffs filed a Motion In Limine against the opinion of the Defendants Forensic Economists in that the expert excluded health insurance from the fringe benefits calculations for the decedent’s loss of future earnings based upon a rationale that the decedent’s family members did not lose health insurance as a result of the minor’s death. 

The Plaintiffs also objected to the defense forensic economist expert’s inclusion of transportation cost and personal care products and services cost in the estimation of the decedent’s personal maintenance expenses to be deducted against the decedent’s loss of future earnings. The Plaintiffs asserted that Pennsylvania law does not recognize those types of cost as components of a decedent’s personal maintenance expenses.

In addressing this Motion In Limine, the court found that the defense economist expert fundamentally misconstrued the damages recoverable under the Wrongful Death and Survival Act and, as such, the court directed the Defendant’s expert to issue an amended report that complies with Pennsylvania law by including health insurance benefits in the fringe benefits estimation and by excluding the cost for transportation and personal care products and services from the personal maintenance expenses computation. The court held that, if the Defendant failed to submit such an amended report, the expert would be precluded from testifying at trial.

On a separate Motion In Limine filed by the Plaintiffs, the Plaintiffs asserted that the defense medical liability expert witness who expressed opinions regarding the complexities of the treatment involved and the difficulty in recognizing an aortic dissection in pediatric patients, did not opined that any physician complied with or deviated from the applicable standard of care. As such, the Plaintiffs asserted that the medical liability expert witnesses opinions were not relevant to the issues presented.

The court rejected this Motion In Limine filed by the Plaintiff after finding that the opinions expressed and the observations made by the defense pediatric cardiothoracic surgeon were relevant to the medical issues to be considered by the jury. The court also found that this expert possessed the requisite qualification to testify on those medical issues presented. As such, the Plaintiff’s Motion In Limine in this regard was denied.


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




Court Reaffirms The Rule That A Plaintiff Cannot Sue a Tortfeasor's Liability Carrier For Bad Faith


In the case of Gitelman v. Wilkinson, No. 2:21-CV-1696 (W.D. Pa. March 24, 2022 Stickman, J.), the court confirmed that a Plaintiff has no standing to sue a tortfeasor Defendant’s carrier for bad faith.

In this matter, the Plaintiff had settled her personal injury case and the tortfeasor Defendant’s carrier issued a settlement check for over $100,000.00. The Plaintiff never deposited the check and took the position that she was defrauded and that she was entitled to more money from her own carrier and from the Defendant’s carrier.

The Plaintiff filed a bad faith claim against the tortfeasor Defendant’s carrier on the basis that that insurance company owed her a duty of good faith and fair dealing.

The court granted the Motion to Dismiss this claim and, citing the Pennsylvania Superior Court case of Strutz v. State Farm, 609 A.2d 569 (Pa. Super. 1992), confirmed that a tortfeasor’s carrier owes no duty of good faith in dealing to third party Plaintiffs.

Accordingly, the court found that the Plaintiff in this matter was found not to have any standing to sue the tortfeasor’s carrier for bad faith.

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

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

Tuesday, May 10, 2022

Proper Jurisdiction for Social Media Defamation Claim Reviewed


In the case of Gorman v. Shpetrik, No. 2:20-CV-04759-CMR (E.D. Pa. March 10, 2022 Rufe, J.), the court addressed jurisdiction issues, and other issues, arising out of a claim of defamation related to online post and tweets that allegedly damaged the Plaintiff’s reputation.

With regard to the jurisdiction issue, the court found that the defendant allegedly directed allegedly defamatory messages to a person within the jurisdiction, with the intent to damage the reputation of another person also in that jurisdiction.  The court found that the defendant had therefore been involved in activity expressly directed at the jurisdiction such that the exercise of personal jurisdiction was proper over the case presented.

Relative to a statute of limitations issues raised by one of the Defendants, the court noted that the limitations period began to run when defamatory material was published.

The court also noted that the Plaintiff’s lack of knowledge as to the Defendant’s identity could not support an application of the discovery rule under the facts presented in this case. 

However, the court found that the Plaintiff had sufficiently pled a claim of fraudulent concealment by alleging that the Defendant had provided false information when registering on the social media platforms on which the allegedly defamatory material was allegedly published. As such, the court allowed discovery on this issue before making a determination as to whether the doctrine of fraudulent concealment could serve to toll the statute of limitations on some of the Plaintiff’s claims in this matter.

The court additionally dismissed the Plaintiff’s claims of intentional infliction of emotional distress after finding that this claim failed because the Plaintiff had not alleged any physical injury connected to or caused by the Plaintiff’s alleged emotional distress.

The court also found that the Plaintiff’s claims for civil conspiracy failed because the Plaintiff had not alleged that all members of the purported conspiracy shared a common purpose, but rather, merely alleged that they took acts that furthered the alleged purpose of the conspiracy.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 6, 2022).

Monday, May 9, 2022

Motion To Dismiss Punitive Damages Claim Granted Where Evidence of Recklessness Was Lacking in "Run-of-the-Mill Intersectional Collision" Case



In the case of Barbarevech v. Tomlinson, No. 18-CV-4821 (C.P. Lacka. Co. March 25, 2022 Nealon, J.), the court addressed a Motion for Partial Summary Judgment filed by a Defendant in a motor vehicle accident case seeking to dismiss punitive damages asserted against the Defendant on the ground that the evidence presented by the Plaintiff was insufficient as a matter of law to sustain the Plaintiff’s claims of recklessness.

The employer Defendant also sought to dismiss the Plaintiffs’ direct liability claim for negligent hiring, training, and supervision of the employee under an argument that the employer’s admission that the employee was acting within the scope of her employment at the time of the accident.

Relative to the punitive damages claims, after noting that there was no evidence in the record that the Defendant driver was speeding, driving while impaired or distracted by cell phone use, or otherwise engaged in unreasonable conduct manifesting a conscious disregard of a known or obvious risk posing a high probability of harm to others, the court granted the Defendant's Motion to Dismiss the claim for punitive damages.

The court additionally noted that, based upon the facts of this “run-of-the-mill intersectional collision,” the Plaintiffs’ expert was not permitted to express a legal opinion that the Defendant driver was chargeable with “reckless indifference” as defined by Pennsylvania law, particularly since the record did not contain an adequate basis in fact for that opinion.

The court also rejected the Plaintiffs’ attempt to assert that the Defendant employer’s post-accident investigation of the collision did not cause or contribute to the accident or the harm that the Plaintiff had suffered and, as such, could not serve as a basis for the Plaintiff’s punitive damages claims. Judge Nealon otherwise stated that there was no other evidence in the record that the Defendant employer acted in a willful, wanton, or reckless manner.

As such, the Motion to Dismiss the Punitive Damages Claim was granted.

On the separate claim of direct employer liability for the alleged negligence in selecting, training, and supervising employees and their activities, the court allowed this claim to proceed after finding that Pennsylvania case law provides that a Plaintiff may pursue such a claim against an employer on theories of direct and vicarious liability, either at the same time or alternately, and Plaintiffs need not surround a direct liability claim against the employer if the employer acknowledges an agency relationship with the employee. As such, the employer’s Motion for Partial Summary Judgment with regards to the independent claim for negligent hiring, training, and supervision was denied.

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

Have You Registered for the Lackawanna Pro Bono Golf Tournament (or just the CLE and Lunch)?

 


Friday, May 6, 2022

Another Court Rules That the Time Courts Were Closed Due to COVID-19 Pandemic Are Not To Be Deducted From the Delay Damages Computation



In the case of Yoder v. McCarthy Construction, Inc., May Term 2018, No. 0769 (C.P. Phila. Co. Feb. 10, 2022 Foglietta, J.), the trial court issued Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s rulings during the course of a personal injury trial that resulted in a $5 million dollar verdict of the Plaintiff.

Of note, the court rejected the Defendant’s assertion that the trial court erred in awarding delay damages for the period that the court was closed due to the COVID-19 pandemic. 

The court ruled that the plain language of Rule 238 indicates that delay damages are appropriate due to the delay that is not the fault of any party. The court found that a court closure due to a pandemic falls within this definition. 

The court additionally noted that the trial court’s closure during the pandemic “did not prevent defense counsel from picking up the telephone, scheduling a Zoom hearing, or sending a text message to opposing counsel indicating the desire to make an offer to settle this case.” See Op. at 11. 

The trial court judge indicated that the court’s closure could have served as an encouragement to the parties to settle and that, the fact that it did not, did not entitle the Defendant to a reward when the underlying purpose of delay damages is to discourage dilatory conduct.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 19, 2022).

Liquor Liability Exclusion Found Not To Apply Against a Multi-Claim Complaint



In the case of AIX Specialty Ins. Co. v. American Legion Department of Pennsylvania, No. 2:21-CV-023380-MAK (E.D. Pa. March 14, 2022 Kearney, J.), the court addressed a declaratory judgment action regarding coverage potentially owed to an American Legion relative to an underlying personal injury claim filed by a Plaintiff who was injured by a gun shot wound in an American Legion after the assailant was allegedly served alcohol while that assailant was allegedly visibly intoxicated.

After the court’s review of the liquor liability exclusion contained in the policy and determined that certain claims asserted by the Plaintiff could potentially fall within such coverages allowed by the policy, the court found that the exclusion at issue did not apply in this matter involving a multi-claim complaint.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 6, 2022).

Thursday, May 5, 2022

Allegations of Recklessness Allowed to Proceed in Lackawanna County Case



In the case of Koloras v. Dollar Tree Stores, Inc., No. 21-CV-2700 (C.P. Lacka. Co. April 19, 2022 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas continued the trend in Lackawanna County of allowing personal injury cases to proceed with allegations of recklessness regardless of the facts alleged.

In his Opinion, Judge Nealon notes that facts are not required to support claims of recklessness and/or punitive damages in any Complaint because those claims do not amount to causes of action and, are instead, claims that are derivative of other causes of action.

The court noted that the fact pleading requirements set forth under Rule 1019(a) only apply to the allegation of “a cause of action or defense.” In this Koloras case, the court ruled that under Pa. R.C.P. 1019(b), allegations of recklessness should be considered an allegation of a state of mind of a party to the action which, according to this court, may be pled generally under Pa. R.C.P. 1019(b).  In so ruling, the Lackawanna County Court of Common Pleas relied, in part, the case of Archibald v. Kemble, 971 A.2d 513, 517 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010).

While the court does refer to other trial court decisions that have sustained Preliminary Objections to punitive damages claims by finding that a Complaint lacked sufficient factual averments supporting claims of willful, wanton, or reckless conduct as set forth, this court declined to follow those cases.

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

I send thanks to Attorney Michael J. Sowinski, II, Esquire of the Wilkes-Barre, PA law office of Rosenn, Jenkins & Greenwald, LLP for bringing this case to my attention.

Have You Registered for the Lackawanna Pro Bono Golf Tournament (or just the CLE and Lunch)?

 


Wednesday, May 4, 2022

HAPPY BIRTHDAY TORT TALK!!

 



Happy Birthday Tort Talk!

Tort Talk was started 13 years ago on May 4, 2009.

With over 2,000 email subscribers and 3,500 blog posts to date, and now going on over 3.3 million views, Tort Talk is still going strong.

Thank you for your tips on notable cases and for your readership.







Source of image: Photo by designecologist on www.pexels.com.


Tuesday, May 3, 2022

Summary Judgment Granted In Favor of Store Where One Customer Accidentally Hit Another With a Shopping Cart


In the case of Glidewell v. Giant Food Stores, Inc., No. 335-CV-2018 (C.P. Col. Co. Feb. 15, 2022 Norton, J.), the court granted a Defendant’s Motion for Summary Judgment in a supermarket premises liability case.

In so ruling, the court found that there were no genuine issues of any material facts in the record to demonstrate that the Defendant supermarket’s actions or inactions were a substantial factor in bringing about the injuries the Plaintiff alleged suffered when another patron allegedly hit the Plaintiff accidentally with a shopping cart while the two (2) individuals were standing in a check out line.

The court noted that the Plaintiff did not have any expert reports to suggest that a long line of shopping carts or individuals in the cash register area was a dangerous condition in a supermarket check out area. 

There was also evidence presented in the record that there were several witnesses who indicated that there was sufficient room for the person who struck the Plaintiff with the shopping cart to navigate her shopping cart around where the Plaintiff was standing at the time of the incident.

As noted, based upon the record before the court, summary judgment was granted in favor of the store.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 12, 2022).

Source of image:  Photo by Eduardo Soares on www.unsplash.com.

Plaintiff Failed To Establish Jurisdiction Over German Division of BMW


In the case of Mahurin v. BMW of North America, LLC, No. 2:20-CV-01351 (W.D. Pa. March 18, 2021 Hardy, J.), the court found that the Plaintiff had failed to establish jurisdiction over the Defendant, BMW, and as such, the Plaintiff’s claims against that Defendant were dismissed in this products liability action. 

According to the Complaint, the Plaintiff was involved in a motor vehicle accident. The Plaintiff alleged that the airbag released sharp metal fragments that penetrated his neck and chest area and caused additional injury. The Plaintiff sued BMW for products liability, negligence, and breach of warranty.

The Plaintiff asserted that BMW, a German company, was the parent company of another BMW entity, a Delaware limited liability company with a principle place of business in New Jersey. That Defendant filed a Motion to Dismiss for lack of personal jurisdiction.

The court granted the Motion after finding that the Plaintiff failed to sustain his burden to establish specific personal jurisdiction. The court generally noted that the Plaintiff failed to show any purposeful availment of the Defendant in terms of activity and Pennsylvania.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 6, 2022).


Source of image:  Photo by Artiom Vallat on www.unsplash.com.

Friday, April 29, 2022

Plaintiff Must Separate Out Claims Against Separate Defendants in a Complaint


In the case of Gowden v. Com., Pa. Dept. of Transp., No. 21-CV-3046 (C.P. Lacka. Co. March 31, 2022 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed Preliminary Objections filed by Defendants challenging the specificity of an Amended Complaint in a case involving a motor vehicle accident that was allegedly caused, in part, due to loose gravel and other materials resulting from the work on the roadway.

Judge Nealon sustained the Defendant’s Preliminary Objections against the Plaintiff’s general use of the term “Defendants” throughout the Complaint without identifying which named Defendants were being accused of which acts of negligence. The court noted that, in the Amended Complaint at issue, the only change the Plaintiff made from the general, lump sum allegations against all “Defendants” in the Amended Complaint was to simply insert the names of the Defendant after the terms “Defendants” in the challenged paragraphs. This the court again found was insufficient to put the defense on notice as to which Defendant was being accused of which act of negligence.

As such, the court sustained the Preliminary Objections to the Plaintiff’s only negligence count in the Amended Complaint given that that pleading attempted to assert a single negligence claim against all four (4) Defendants based on the same exact conduct in violation of the Pennsylvania Rules of Civil Procedure.

The court granted the Plaintiff a “final opportunity to sufficiently identify each cause of action being advanced against named Defendant in a separate count.” The court noted that, the failure of the Plaintiff to do so in the next Amended Complaint would result in a dismissal of claims.


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


Source:  Photo by Ujesh Krishnan on www.unsplash.com.

Thursday, April 28, 2022

Dog Bite Case Allowed To Go Beyond Summary Judgment Stage


In the case of Wentz v. Blakeslee, No. 2646-CV-2020 (C.P. Monroe Co. Feb. 7, 2022 Williamson, J.), the court denied a Motion for Summary Judgment in an alleged dog bite case given the presence of material issues of fact.

According to the Opinion, the Plaintiffs and their minor son were guests at the home of a friend. While playing outside, the minor and other children went over to a neighboring residence to say goodbye to a dog that they knew. Apparently, the dog was ill and was set to be put down the next day.

The Plaintiff alleged that, when the minor went into the room where the dog was resting, the dog allegedly attacked and bit the child after he touched the dog.

In response to the Defendant’s Motion for Summary Judgment, the court found that there were material issues of fact regarding whether the Defendant had prior knowledge of his dog’s alleged dangerous propensities, whether the minor Plaintiff provoked the dog, and whether the Defendant could have done anything to prevent the child from having contact with the dog.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 15, 2022).

Photo by Andrew Neel on www.pexels.com.

Defendant Given Another Chance to Allege More Factually Specific New Matter Defenses


In the case of J.C.F., a minor v. Brenneman, No. 2021-SU-001714 (C.P. York Co. March 4, 2022 Strong, J.), a court addressed Preliminary Objections filed by a Plaintiff against a Defendant’s Amended Answer and New Matter. According to the Opinion, this matter involved an alleged dog bite incident.

In the Plaintiff’s Preliminary Objections to the Defendant’s New Matter, the Plaintiff alleged a lack of factual specificity in violation of the Rules of Civil Procedure as well as a lack of legal sufficiency.

The Plaintiff attacked the allegations in the Defendant’s New Matter in which the Defendants had asserted that the Plaintiff’s injuries and/or damages may have been caused in whole or in part by the Plaintiff’s own conduct when the Plaintiff had interacted with the dog.  The Plaintiff also attacked allegations by the Defendant that the Plaintiff may have assumed the risk of injuries and/or that the Plaintiff failed to mitigate any alleged injuries by not following medical advice.

After reviewing the pleadings, the court found that the Defendants failed to provide sufficient factual specificity in support of the defenses raised in the Defendant's New Matter. The court noted that the conclusory paragraphs asserted by the Defendant did not enable the Plaintiff to prepare their case in opposition to the defenses raised.

In striking the new matter allegations regarding contributory negligence and assumption of the risk, the court noted that, under Pa. R.C.P. 1030(b), it is provided that the affirmative defenses of assumption of the risk and contributory negligence need not be pled.  As such, the court noted that the Defendant did not need to restate these claims in any amended pleading but that, if they chose to do so, the Defendants were required to fully conform to the requirement under Pa. R.C.P. 1019(a) of providing sufficient factual specificity in support of such pleadings.

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


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

Wednesday, April 27, 2022

Res Ipsa Loquitur Doctrine Applied to Allow Motor Vehicle Incident Case to Proceed



In the case of Houck v. WLX, LLC, No. 3:19-CV-275 (M.D. Pa. March 10, 2022 Mariani, J.), the court denied summary judgment after finding that a Plaintiff had created enough of a record in a circumstantial case as to the justify the application of the res ipsa loquitur doctrine in a case where an item allegedly fell off a Defendant’s truck, bounced, and went through the windshield of the Plaintiff’s decedent’s vehicle with fatal results.

The court noted that, although there were no witnesses, the facts of the case, viewed in a manner most favorable to the Plaintiff as required by the applicable standard of review, established that an item from the Defendant’s truck could have possibly fallen off of the truck, bounced on the roadway, and ended up through the windshield of the decedent.

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


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

Have You Registered for the Lackawanna Pro Bono Golf Tournament (or just the CLE and Lunch)?


 

Tuesday, April 26, 2022

Validity of Part of Pennsylvania's Long-Arm Statute Going Up to the U.S. Supreme Court for Consideration


The United States Supreme Court has agreed to consider arguments in the Pennsylvania case of Mallory v. Norfolk Southern Railway about the constitutionality of Pennsylvania’s law requiring out-of-state companies and corporations to submit to jurisdiction in Pennsylvania as a requirement when registering to do business in the Commonwealth.

The Pennsylvania Supreme Court ruled that this law was unconstitutional late last year, finding that it violated due process principles.

The Tort Talk post on the Pennsylvania Supreme Court's decision in the Mallory case, along with a Link to that decision, can be viewed HERE.

Source:  Article - "SCOTUS Takes Up Appeal Over Pa.'s Jurisdiction By Business Registration Law" by Max Mitchell of the Pennsylvania Law Weekly (April 25, 2022).

Source of image:  Photo by Brad Weaver on www.unsplash.com.

Exculpatory Clause in Fitness Center's Membership Agreement Upheld


In the case of Milshteyn v. Fitness International, LLC, 2022 Pa. Super. 30 (Pa. Super. Feb. 18, 2022 Panella, P.J., Kunselman, J., and Stevens, P.J.E.) (Op. by Panella, P.J.), the Pennsylvania Superior Court found that the trial court properly granted summary judgment to a fitness facility in a Plaintiffs’ slip and fall action where the membership agreement signed by the Plaintiff was not found to be a contract of adhesion.

The court also found that the release in the agreement clearly foreclosed the Plaintiff from proceeding on the claim presented.

The court additionally found that the Plaintiffs’ claim for gross negligence found in an Amended Complaint constituted a wholly distinct claim from the claim presented in the original Complaint. The court noted that the Plaintiffs had attempted to add a claim of gross negligence after the expiration of the applicable statute of limitations in an effort to get around the release in the membership agreement given that a claim for gross negligence would not have been barred by the membership agreement. As such, the court stated that, in this context, the Plaintiff’s claims for gross negligence should be deemed to constitute a new cause of action.

As such, the appellate court affirmed the trial court’s entry of summary judgment.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 8, 2022).


Photo by Max Vakhtbovych from www.pexels.com.

Monday, April 25, 2022

REMEMBER: Administrative Assistant's Day is This Wednesday

 


NOTE TO SELF.......

This Wednesday, April 27th is ADMINISTRATIVE PROFESSIONALS DAY.

Don't forget to take care of those co-workers who help to make it all happen and help to make you look good!


Photo by Aaron Burden from www.unsplash.com.


Plaintiff's Bad Faith Claim Found To Be Barred by Two Year Statute of Limitations


In the case of Dana Mining Co. of PA v. Brickstreet Mut. Ins. Co., No. 2:21-CV-00700 (W.D. Pa. March 9, 2020 Colville, J.), the Western District Federal Court addressed bad faith issues and the statute of limitations related thereto.

According to the Opinion, in this matter, the carrier refused to defend or indemnify its insured against an underlying tort lawsuit. The insured then sought declaratory relief and claimed a breach of contract and bad faith.

The carrier filed a Motion to Dismiss the bad faith claim on statute of limitations grounds.

In this matter, the carrier had denied coverage in May of 2017. The insured instituted a bad faith claim in April of 2021.

The court in this matter confirmed that the statute of limitations for bad faith claims under 42 Pa. C.S.A. §8371 is two (2) years.

The court additionally confirmed that the statute of limitations for claims of §8371 bad faith begins to run when the Plaintiff’s right to institute and maintain a lawsuit for bad faith arises. The court reiterated the rule that a lack of knowledge, mistake, or misunderstanding does not serve to toll the running of the statute of limitations.

The court more specifically noted that a bad faith claim can arise when a carrier definitively denies coverage and puts the insured on notice of the same.

Judge Colville noted that an insured cannot avoid the limitations period by asserting that a continuing refusal to cover was a separate act of bad faith. He referred to the law that repeated or continuing denials of coverage do not constitute separate acts of bad faith given rise to a new statutory period of time.

While the court did observe that there was case law in support of a proposition that, if a carrier subsequently denies coverage after the insured brings to the attention of the carrier “new evidence,” this may constitute a separate and independent injury that can trigger a new limitations period.

However, in this case, the court found that there were no allegations that the insured presented the carrier with any new facts or evidence regarding the underlying claim such that the carrier should have reconsidered its denial. As such, no new limitations period was found to have been triggered. As such, the case was dismissed.

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 New Jersey Insurance Bad Faith Case Law blog.

Photo by Jordan Benton on www.pexels.com.

UIM Bad Faith Claim Allowed to Proceed; UTPCPL Claim Dismissed


In the case of Wingrove v. Nationwide Prop. & Cas. Ins. Co., No. 2:21-CV-00940 (W.D. Pa. March 28, 2022 Colville, J.), the court found that a Plaintiff adequately pled a UIM bad faith claim regarding claims handling issues and an alleged delay in payment. However, the Court dismissed claims that were brought by the Plaintiff under the Unfair Trade Practices and Consumer Protection Law (UTPCPL) as well as under the Pennsylvania Motor Vehicle Financial Responsibility Law.

According to the Opinion, the insured brought bad faith claims regarding the carrier’s failure to pay UIM benefits and wage loss benefits. The carrier filed a Motion to Dismiss in this federal court matter.

After reviewing the Complaint, the court found that the Complaint described in sufficient detail the facts that described the who, what, where, when, and how questions with regard to alleged bad faith conduct.

More specifically, the court found that the Plaintiff had alleged facts in support of claims of a lack of any investigation or evaluation, alleged repeated failures on the part of the carrier to communicate with the Plaintiff’s counsel despite Plaintiff’s counsel’s attempt to contact the carrier, and also alleged an unexplained delay of seven (7) months between the Plaintiff’s demand and the carrier’s offer. The court found that these allegations were sufficient to allow the bad faith claim to proceed.

The court otherwise dismissed the Plaintiff’s UTPCPL claims after finding that that law did not apply to claims handling, but only to conduct prior to the entry of an insurance agreement. The court noted that the allegations all involved claims handling issues and not the sale of an insurance policy.

The court also agreed that the claims raised by the Plaintiff under 75 Pa. C.S.A. §1716 of the Motor Vehicle Financial Responsibility Law, which addressed first party benefits issues, did not apply to UIM claims. As such, those claims were dismissed as well.

The court otherwise refused to strike references to a fiduciary duty as set forth in the Complaint. In this regard, the court found that the Plaintiff had not specifically asserted any claim for a breach of a fiduciary duty and that there was, therefore, no need for the drastic action of striking allegations sounding in that regard from the case at that early stage of the case.

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


I send thanks to Attorney Lee Applebaum of the Philadelphia law office of Fineman Krekstein and Harris, and also the writer of the Pennsylvania New Jersey Insurance Bad Faith Case Law blog for bringing this case to my attention.  Click HERE to view Lee's Blog.

Friday, April 22, 2022

No Jurisdiction Found Over Out-of-State Contractor in Construction Litigation Case


In the case of Bean Sprouts LLC v. Life Cycle Const. Serv., LLC, No. 1467 EDA 2021 (Pa. Super. Feb. 17, 2022 Panella, P.J., Dubow, J., McCaffery, J.) (Op. by Panella, P.J.), the Pennsylvania Superior Court held that the trial court did not err when it found that the Defendant did not have the requisite minimum contacts with Pennsylvania for the trial court to exercise jurisdiction.

According to the Opinion, this case arose out of a construction contract dispute.

The Plaintiff was a construction and excavating company and the Defendant was a contractor engaged in construction projects throughout the country.

The Plaintiff filed a breach of contract action in Pennsylvania. The Defendant contractor filed Preliminary Objections asserting that it did not have the requisite minimum contacts with Pennsylvania such that a Pennsylvania court could not exercise personal jurisdiction over the Defendant.

The trial court sustained the Preliminary Objections and the appellate court affirmed.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 8, 2022).

Photo by skitterphoto on www.pexels.com.

No Duty to Defend or Indemnify Found Relative to Alleged Faulty Workmanship in a Home Construction Case


In the case of Main St. Am. Assurance Co. v. Conolly Contractors, Inc., No. 2:19-CV-04241-JHS (E.D. Pa. Feb. 28, 2022 Slomsky, J.), the court granted the carrier’s Motion for Judgment on the Pleadings in its declaratory judgment action.

The issue in this case is whether the carrier had a duty to defend and indemnify a contractor or builder who was sued by homeowners for alleged home construction defects.

The court found that the carrier had no duty to defend and indemnify because the homeowners’ claims of faulty workmanship did not allege that the property damage was caused by an “occurrence” as required by the contractor’s policy of insurance.

The court additionally found that the builder was not listed as an additional insured under the contractor’s policies.

As such, the carrier’s Motion for Judgment on the Pleadings in this declaratory judgment was granted.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 24, 2022).

Thursday, April 21, 2022

It's Alive, It's Alive!! -- The Pennsylvania Superior Court Upholds the Household Exclusion as Enforceable (Currently Listed as "Non-Precedential")

Yesterday, the Pennsylvania Superior Court held in Erie Ins. Exch. v. Colebank, No. 1244 WDA 2021 (Pa. Super. April 20, 2022 Bender, P.J.E., Lazarus, J., McCaffery, J.)(Op. by McCaffery, J.), a decision which the Court listed as a Non-Precedential decision, that a household exclusion was enforceable in a situation where a claimant was injured while driving a vehicle on which all UIM coverage had been rejected.

In the Colebank case, the claimant was injured while driving a vehicle insured by State Farm. Notably, the claimant had rejected all UIM coverage on the State Farm policy.

After an accident with an allegedly underinsured driver, the claimant made a claim for stacked UIM coverage under his parents’ separate Erie Insurance policy.

Coverage was denied by Erie Insurance on the basis of the household exclusion contained within the Erie Insurance policy.  Erie asserted that the Gallagher v. GEICO case was not controlling because the claimant had knowingly rejected UIM coverage under his own State Farm policy and, therefore, the issue of stacking was not in play.

The claimant argued that the claimant’s rejection of stacking under the State Farm motorcycle policy was irrelevant as to the issue of whether he was entitled to stacked coverage under the Erie policy.  The claimant asserted that he was still entitled to stacked coverage under the terms of the Erie policy possessed by his parents as he was a resident relative.  The claimant also argued that the household exclusion was contrary to the mandates of the MVFRL and was, therefore, void and unenforceable.

The court disagreed. The Pennsylvania Superior Court ruled that enforcing the household exclusion in the parents’ policy was consistent with the legislative intent of MVFRL and with Gallagher because such enforcement will have the effect of holding the claimant to his voluntary choice of coverage or a lack thereof. 

Moreover, the Pennsylvania Superior Court ruled that, because the claimant had rejected UIM coverage on his motorcycle policy, “Gallagher is not applicable and did not invalidate the household exclusion.”  Rather, the Court found that, where the injured party did not purchase stacked coverage under his own policy, he did not have the requisite coverage on which to stack the UIM coverages under his parents' separte household policies.  

Notably, the Superior Court noted that this analysis "is consistent with the MVFRL as the [claimant] voluntarily chose not to purchase UIM coverage in his automobile policy, and in return received reduced insurance premiums."  See Op. at p. 25.

Anyone wishing to review this decision may click this LINK.


I send thanks to Attorney Benjamin P. Novak, Esq. from the Lancaster, PA office of Fowler, Hirtzel, McNulty & Spaulding, LLP, for bringing this notable decision to my attention.

Source of image:  Photo by Andrea Piacquadio on www.pexels.com.

Wednesday, April 20, 2022

If No Coverage Under Policy, Then No Bad Faith


In the case of Walker v. Foremost Ins. Co., No. CV-20-4966 (E.D. Pa. March 2, 2022 McHugh, J.), the court followed prior precedent in granting summary judgment on a bad faith claim after finding that there was no coverage due on the policy in question.

According to the Opinion, this case arose out of an incident during which a homeowner’s fallen tree damaged her neighbor’s property.

The neighbor and the neighbor’s carrier sued for damages.

The homeowner’s carrier asserted that its policy did not provide liability coverage for the claim at issue.

The neighbor filed for breach of contract and bad faith.

After finding that no coverage was due under the policy and granting the homeowner’s carrier’s Motion for Summary Judgment on the breach of contract claim, the court likewise granted the summary judgment on the bad faith claim indicating that, since there was no coverage due under the policy, “by definition, the insurer had a reasonable basis to deny the benefits.”

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


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


Photo by Castorly Stock on www.pexels.com.

Bad Faith and UTPCPL Claims Dismissed in Damage to Motorhome Case



In the case of Moravia Motorcycle, Inc. v. Allstate Insurance Company, No. 2:21-CV-01274-PLD (W.D. Pa. March 3, 2022 Dodge, M.J.), a federal magistrate district court judge for the Western Federal District Court of Pennsylvania issued a Memorandum Opinion in an insurance bad faith case.

According to the Opinion, the Plaintiffs owned a motorhome that sustained storm damage when a tree fell on top of the motorhome, which allowed rainwater and other moisture to penetrate the motorhome and cause damage to the interior and the Plaintiffs’ property located inside.

The Plaintiffs asserted that they were advised that the policy would provide coverage for this type of loss. When they notified Allstate of the damages, Allstate refused to provide coverage. The Plaintiff sued for a breach of contract, bad faith, and for treble damage under the Unfair Trade Practices and Consumer Protection Law.

After reviewing the facts before it, and applying the relevant law, the court granted Allstate’s Motion to Dismiss the Plaintiff’s claims of negligence and bad faith without prejudice. The court also granted Allstate’s Motion to Dismiss with prejudice relative to the claims under the Unfair Trade Practices and Consumer Protection Law.

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


I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

Monday, April 18, 2022

Doctrine of Forum Non Conveniens Reviewed In Dispute Between Two Plaintiff's Law Firms Over a Substantial Fee


In the case of Fellerman & Ciarimboli Law, PC v. Joseph L. Messa, Jr., & Associates, No. 21-CV-4654 (C.P. Lacka. Co. April 14, 2022 Nealon, J.), the court addressed issues under the doctrine of forum non conveniens.

According to the Opinion, the personal injury law firm Plaintiff in this matter, which maintains offices in Delaware County, Lackawanna County, Luzerne County, Philadelphia County, and New Jersey, commenced a declaratory judgment action against a Philadelphia personal injury law firm seeking a determination regarding the proper method for calculating the Philadelphia firm’s share of attorney’s fees of a little over $2 million dollars that relative to a civil litigation matter.

The counsel fees in dispute were generated from a wrongful death lawsuit that was filed and litigated in Philadelphia County and defended by Philadelphia area attorneys. The underlying case arose from the death of a Philadelphia resident in a Philadelphia accident. The court also noted that the counsel fees were approved by a Philadelphia County judge.

It was also noted that, with regards to the attorney’s fees at issue, the Philadelphia law firm had instituted a separate action against the Plaintiff law firm in Philadelphia County asserting breach of contract, breach of fiduciary duty, unjust enrichment, and other claims.

In this Lackawanna County declaratory judgment case filed by the Plaintiff law firm, the Defendant Philadelphia law firm filed a Petition pursuant to Pa. R.C.P. 1006(d)(1) seeking to transfer venue in this declaratory judgment action to the Court of Common Pleas of Philadelphia County on forum non conveniens grounds.

After reviewing the record before him, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas determined that the records contained sufficient proof that the continued litigation of this declaratory judgment action in Lackawanna County would be unduly burdensome for the Philadelphia law firm and the anticipated witnesses. The court noted that no material witness or any relevant evidence was located in Lackawanna County and that Philadelphia County would provide easier access to the witnesses and other sources of proof.

Based upon the totality of the circumstances, the court found that Lackawanna County is an oppressive forum for the adjudication of this case. As such, the court granted the Petition to Transfer Venue and transferred the case to Philadelphia County.

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

Source of image:  Photo by gratisography on www.pexels.com.

Evidence of 20 Year Old Crimini Falsi Conviction Precluded


In the case of Lett v. SEPTA, No. 2:19-CV-03170-KSM (E.D. Pa. Feb. 10, 2022 Marston, J.), the court issued an evidentiary ruling regarding a prior criminal conviction of a Plaintiff in a disability discrimination lawsuit that the Plaintiff filed against his former employer.

The Plaintiff filed a Motion In Limine to preclude the Defendants from introducing evidence at trial regarding the Plaintiff’s 20 year old fraud convictions. The Plaintiff asserted that the probative value of this evidence was outweighed by the prejudicial effect of the conviction due to their age.

The court granted the Plaintiff’s Motion In Limine. 

Judge Marston noted that, while a criminal conviction involving a dishonest act or false statement could be admitted to attack a witness’ credibility, if the conviction occurred more than ten (10) years ago, the admitting party must prove that its probative value substantially outweighed any prejudice effect.

The court emphasized that the Plaintiff’s criminal convictions occurred twenty (20) years ago.

The court found that, while the Plaintiff’s convictions were indeed probative of the Plaintiff’s character for truthfulness because fraud crimes implied dishonesty, the court ruled that the age of the conviction meant that their probative value did not outweigh the risk of prejudice.

As such, the Plaintiff’s Motion was granted and the evidence precluded.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 10, 2022).


Photo by Michael Forsch on www.pexels.com.

Have You Registered for the Lackawanna Pro Bono Golf Tournament (or just the CLE and Lunch)?