Thursday, March 31, 2022

Injured Party Found To Be a Resident Under Policy for UIM Coverage Purposes (Non-Precedential)


In the non-precedential case of Erie Insurance Exchange v. Montesano, No. 262 E.D.A. 2021 (Pa. Super. Feb. 24, 2022 Lazarus, J., Dubow, J., and Pellegrini, J.) (Op. by Lazarus, J.) (Dubow, J, dissenting), the Pennsylvania Superior Court affirmed a trial court’s decision that a Plaintiff insured met the definition of a “resident” as defined by the insurance company’s policy in this UIM coverage litigation.

According to the Opinion, the Plaintiff’s parents had divorced when the Plaintiff was 2 years of age. It was reported that the Plaintiff resided with her father and her stepmother in their Montgomery County home through the Plaintiff’s birth through her graduation from high school in 2013. At times, the Plaintiff would visit her mother in Florida for one (1) month over the summer and for one (1) week every other Christmas.

At the time of the accident, the Plaintiff’s father and stepmother owned three (3) vehicles, all of which were insured under an Erie Insurance policy. Under that policy, the term “resident” was defined as “a person who physically lives with ‘you’ in ‘your’ household on a regular basis.”

The court also noted that, on August 3, 2013, following an argument with her father and stepmother and without the knowledge of her father and stepmother, the Plaintiff left her father’s home and flew to Florida to stay with her mother. The Plaintiff took some clothing, a couple of shoes, deodorant, a toothbrush, toothpaste and underwear with her on the trip to Florida. It was noted that the Plaintiff did not take her computer or any jewelry and did not make any arrangements to have those items shipped to Florida. The court noted that the Plaintiff retained her key to her stepfather’s home and continued to receive mail there.

The Plaintiff then lived in Florida and slept on her mother’s couch for approximately one (1) month. While the Plaintiff was in Florida, she obtained state-issued driver’s license and registered to vote.

Seeking another change of scenery, the Plaintiff then left her mother’s home in September of 2013 to visit her maternal grandparents in Alabama. While in Alabama, the Plaintiff obtained an Alabama-state-issued driver’s license, transferred her voter’s registration, and purchased a new month-to-month cell phone plan through an Alabama service provider. The Plaintiff also obtained a job obtained a job and had her own bedroom in her grandmother’s house.

In December of 2013, the Plaintiff returned to her father’s house in Pennsylvania but stayed at a hotel. However, the Plaintiff did visit her father’s house for dinner and, at that dinner, reconciled with her dad and her stepmother and told them that she “wanted to come back home.” The Plaintiff decided to take her scheduled flight back to Alabama to retrieve her personal items and then return to her father’s home in Pennsylvania sometime in January.

The Plaintiff then returned to Alabama after her short visit to Pennsylvania. She decided to drive back to Florida with her mother after her mother had visited the grandmother in Alabama for the Christmas holidays.

The Plaintiff then planned to fly home to Pennsylvania from Florida on January 8, 2014. However, on the drive to Florida on January 2, 2014, the Plaintiff sustained injuries in a motor vehicle accident in Florida while a passenger in her mother’s minivan.

Following the accident, the Plaintiff presented a claim for UIM benefits under the Erie Insurance policy that was issued to her father in Pennsylvania.

Erie investigated the claim and ultimately concluded that the Plaintiff did not qualify as a “resident” of her father’s Pennsylvania home because she had not been physically living there on a regular basis at the time of the accident.

After a bench trial held at the trial court level, that court found that, “for all intents and purposes [the Plaintiff’s] true and permanent residence” was her father’s home in Pennsylvania. On appeal, the Pennsylvania Superior Court affirmed in this decision.

After reviewing the law of residency in this context, and applying the particular language of the policy at issue in terms of the definition of a resident, the court focused on the fact that the definition in the Erie policy define resident, in part, as involving a person who resided in the insured’s residence “on a regular basis.”

The appellate court agreed with the trial court’s finding that such a phrase indicates a broader coverage for individuals who, with some regularity, have lived and will live with the insured, even though they may have physically dwelled somewhere else at the time of the accident. As such, the court found that the law does not require that the insured be physically living at the residence of the insured at the time of an accident in order to be covered under an insurance policy.

Here, where at the time of the accident, the Plaintiff was found to have lived with her father and stepmother in Pennsylvania on a regular basis, the Plaintiff qualified as a “resident” as defined under the policy and was, therefore, found to be entitled to the benefit of UIM coverage under the policy at issue.

The Court's Non-Precedential majority Opinion can be viewed at this LINK.

Source of image:  Photo by Alex on Unsplash

Wednesday, March 30, 2022

ABINGTON HEIGHTS MOCK TRIAL TEAM FROM LACKAWANNA COUNTY REPEATS AS STATE CHAMPIONS

 


CONGRATULATIONS to the reigning State Champion Abington Heights High School Mock Trial Team from Clarks Summit, Lackawanna County, Pennsylvania for going undefeated in the Pennsylvania Bar Association Young Lawyer's Division's statewide Mock Trial Competition this year and for winning the STATE CHAMPIONSHIP last night FOR THE SECOND YEAR IN A ROW!!

REPEAT STATE CHAMPIONS!!!

So proud of these amazing students!!

The Team now moves on to prepare a new Mock Trial case for the Nationals Competition in May.  Although situated in Kalamazoo, Michigan this year, the Nationals will be held virtually.

Congratulations also to our State Finals opponent St. Joseph's Preparatory School from Philadelphia for a great year as well.

Sending THANKS to Jennifer Menichini Drahus, Esq., Jonathan Koltash, Esq., Jonathan Grode, Esq., and Paul Kaufman, Esq., for their hard work and time on the Mock Trial Competition at the PBA level and to Katie Nealon, Esq., Lee Ann Munley, and Kaitlin McDonough for all of their time and hard work with the Competition at the Lackawanna County level.

Thanks also to all of those individuals across the Commonwealth who served as Jurors and Judges for the competition.  The program cannot work without your generous involvement.

I will continue to work to try to get the Pennsylvania Supreme Court to help this great competition by reversing their CLE Committee's previous rejection of a proposed CLE Rule change to allow for minimal CLE credits for Mock Trial juror and judicial volunteers, like many other states already allow.  Allowing such credits may entice more attorneys and judges to participate in the program for the benefit of high school students all across the state.


Monday, March 28, 2022

Judge Nealon of Lackawanna County Denies Request for Spoliation Sanction Relative to Cell Phone Records


In the case that keeps on giving, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued yet another notable decision in the case of Barbarevech v. Tomlison, No. 18-CV-4821 (C.P. Lacka. Co. March 11, 2022 Nealon, J.). This time, the court addressed a Motion In Limine filed by the Plaintiff for spoliation sanctions in the form of an adverse inference charge and preclusion of testimony and evidence relating to the failure to retain Defendant, Nicole Tomlinson’s cell phone records.

In issuing his decision, Judge Nealon reviewed the current status of the law on spoliation at evidence and the discretion of trial court judges to impose a range of sanctions based upon the circumstances presented.

Citing to the famous spoliation cases of Schroeder v. Com. Dept. of Transp., 710 A.2d 23, 27 (Pa. 1998) citing Schmid v. Milwaukee Elect. Toll Corp., 13 F.3d 76, 79 (3d. Cir. 1994), Judge Nealon noted that, in determining whether a sanction is warranted for the spoliation of evidence, the court should consider: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct.

Interestingly, in footnote 2 of the Opinion, Judge Nealon cited to my article entitled “New Wine In An Old Bottle: The Advent of Social Media Discovery in Pennsylvania Civil Litigation Matters,” 60 Vill. L.Rev. Tolle Lege 31, 44 (2015) for the proposition that parties typically utilize a litigation strategy of securing a ‘litigation hold’ court order against an opposing party in a lawsuit in order to prevent that other party from deleting evidence.

After applying the law of spoliation to the case presented, the court noted that neither of the Defendants at issue ever had custody of the cell phone records in question prior to their destruction. 

It was also emphasized that neither party had obtained or even requested a court order directing that the cell phone records be preserved. 

Nor was there any evidence that the Defendants knew that the cell phone records would be deleted under a retention policy of the cell phone owner’s carrier. 

Moreover, Judge Nealon indicated that, since there was no evidence that the Defendant’s cell phone was in use at the time of the subject accident, and given that there was no eyewitness testimony that the cell phone was being held or used by the cell phone’s owner, the court found that it could not be reasonably concluded that the cell phone’s owner had any affirmative duty to unilaterally contact her cell phone carrier to direct that the carrier preserve her cell phone records.

As such, based upon the record before the court, Judge Nealon found that the Defendant’s could not be characterized as the destroyers of the cell phone records in question. It was also reiterated that neither of the Defendants at issue had any knowledge that the cell phone records would have been deleted. As such, the court ruled that a spoliation sanction was not warranted.

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


Source of Image:  Photo of cell phone by Jonas Lee on Unsplash.com.

Court Allows Impeachment By Prior Criminal Conviction



In the case of Barbarevech v. Tomlinson, No. 18-CV-4821 (C.P. Lacka. Co. March 17, 2022 Nealon, J.), Judge Terrence R.Nealon of the Lackawanna County Court of Common Pleas addressed a pre-trial Motion In Limine seeking to preclude evidence or testimony regarding a witness’ prior arrest, guilty plea, and incarceration.

According to the Opinion, the subject witness was a friend of the Plaintiff and was anticipated as a fact witness at trial. That witness pled guilty in 2018 to stalking.

The Plaintiffs filed a Motion In Limine seeking to preclude the impeachment information on this witness for the Plaintiff by asserting that Pa. R.E. 609(a) permits a witness’ credibility to be attacked with evidence that the witness has been convicted of a crime only if the crime involves “dishonesty or false statement.” The Plaintiff asserted that the witness pled guilty to stalking, which did not constitute a crimen falsi crime.

In response, the defense asserted that the federal stalking statute does encompass allegations of dishonesty. The defense also asserted that the criminal acts that the Defendant pled guilty to also, in fact, involved elements of dishonesty.

Judge Terrence R. Nealon
Lackawanna County


After his review of the applicable law as applied to the facts before the court, Judge Nealon ruled that, while the witness’s cyber stalking offense was not inherently a crimen falsi since neither dishonesty nor a false statement was an essential in stated element of that crime, the court noted that, based upon the “underlying facts” that supported the witness’ conviction under the federal statute involved dishonesty and falsehoods committed by the witness to during the course of his crime.

The court therefore ruled that, since the witness utilized dishonesty and false statements in committing his cyber stalking crime, the underlying facts sustaining his conviction supported the classification of the offense as a crimen falsi offense for purposes of the admissibility of this information to impeach the witness at trial pursuant to Pa. R.E. 609(a).

As such, the Plaintiffs’ Motion In Limine was denied by the court.

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

Thursday, March 24, 2022

50 YEARS AGO TODAY......


It was 50 years ago today, March 24, 1972, that the epic film, The Godfather, was released in American theaters.  The film would go on to be listed as one of the Top 10 movies of all time on many lists.

The following article of mine, which first appeared nearly 17 years ago in the August 29, 2005 edition of the Pennsylvania Law Weekly, applies famous quotes from The Godfather movies as golden nuggets of practical advice for lawyers in their handling of cases. 


What I Learned From the Corleone Family: Lawyers can find universal principles and practical advice in The Godfather films 

By Daniel E. Cummins

Special to the Law Weekly 


Few movies are as revered or have reached the iconic status in American culture as the movies that make up The Godfather trilogy. Obviously, the brilliant acting by numerous icons of American cinema and Francis Ford Coppola's direction play the major part in achieving that status. But perhaps even more appealing is the writing, which has generated many lines that can be considered not only quotable but also, in a broader sense, universal principles of life. 

These universal principles are applicable to all walks of life from the mob underworld to our noblest of professions and can provide practical instruction to all who are open to such advice. An application of some of these universal principles to the practice of law offers some sound advice and instruction. 


"It's not personal, Sonny. It's strictly business." Michael to Sonny in The Godfather 


There may be nothing more important to the practice of law than the principle that decisions to be made should never be motivated by personal or emotional animus, but rather should always be the result of a sound, objective, business-like decision-making process. All too often, attorneys take the actions and adverse positions of opposing counsel personally and retaliate without first thinking through and formulating an appropriate response on an objective basis and in accordance with the law and facts of the case. 

The practice of law has unfortunately deteriorated to the absurd and reprehensible extent that formal written rules of civility are apparently required in an effort to maintain order between counsel. It is questionable as to whether any other profession has or requires that basic rules of civility and courtesy be formally acknowledged or, worse yet, put in writing. A reason that such written rules may have become necessary for attorneys is that counsel are indeed ethically required to be zealous advocates for their client's causes of action, which, in turn, can unfortunately invite emotions and personal animosity into the decision-making process and in dealings with opposing counsel. The key, of course, is to rise above such personal issues and emotions and keep handling matters in a strictly business-like manner. 

Litigating attorneys should also never take on the emotional trappings of their clients and should never let their personal opinions of opposing counsel or the quality of that attorney's case get in the way of an objective application of the law to the facts of the case presented. In the big picture, attorneys are the representatives of their respective clients who are engaged in a dispute that cannot be resolved amicably. The pros and cons of a case cannot be properly and professionally evaluated if one's judgment is clouded by emotionally charged and negative feelings toward another attorney, that attorney's client, or that attorney's case or argument. Accordingly, if you find yourself unable to separate yourself from an emotional opinion of the case, it may be wise to run the case by another attorney or, even better, a lay person for a fresh and objective viewpoint. 

It is particularly important to remain objective when evaluating cases for settlement purposes and in engaging in settlement negotiations. Emotions have no place during settlement negotiations but can run high and get in the way of an objective evaluation of a case's range of value. Ultimately, in all cases, it's not personal, it's strictly business.


"Never hate your enemies – it affects your judgment." Michael to Vincent in The Godfather, Part III 


A corollary to the general rule that negative emotions should have no place in the litigation process is that one should never allow matters to get personal with the opposition. When one allows their emotions to intrude into their dealings with opposing counsel, the ability to evaluate any and all issues that arise is clouded by such negative feelings. 

As difficult as it may be, one must attempt to disassociate and cut out any negative feelings or animosity (even when such emotions may be warranted under the circumstances) toward opposing counsel, an opposing client, a judge or whomever one is dealing with. Only then can a proper evaluation and handling of the issue or case be completed. 

For example, some attorneys may feel they are being personally attacked when they are presented with a motion to compel discovery responses. Obviously, in cases where there are no objections at issue, it must be considered that the motion may be warranted as such a motion would not have been necessary if the discovery responses had been timely produced. Consideration should also be given as to whether the attorney filing the motion was compelled to do so by a superior in his or her firm or by the client. 

In terms of the attorney filing a discovery motion, it is obviously always good practice whenever possible to send a warning letter to opposing counsel of the intention to file a discovery motion at least 20 to 30 days ahead of time so as to allow time for the response to be produced. It is also good practice to agree to select another day to present the motion if the date selected is not good for the opposing counsel. In the end, all efforts should be made to resolve the discovery issue before burdening the court with petty and tangential issues to decide. 

With all issues presented by a case, although sometimes easier said than done, one should not allow an emotional viewpoint to cloud one's evaluation of the case presented. This is not to say that an attorney shouldn't be passionate or should refrain from forcefully presenting her position on the case at hand. The key, rather, is to attempt to prevent any clouding of judgment by an emotional response to the case whether it be a positive or negative response. After all, remember what happened to Sonny Corleone when he allowed his emotions to cloud his judgment and get the best of him. 


"Keep your friends close, but your enemies closer." Michael to Pentangeli in The Godfather, Part II 


No advice may be as difficult to heed than the caution to keep your enemies or adversaries close. Unfortunately, there are some adversaries in the practice of law who thrive on petty confrontation and routinely taking matters to a personal, negative and vexatious level. Such attorneys seem to enjoy attempting to push the buttons of opposing counsel and disrupting the normally smooth handling of cases. While there is no place in the practice of law for such boorish behavior, there is usually no recourse against the same, and one must be prepared to deal with such attorneys effectively in order to provide his clients with the representation they are entitled to. 

Fortunately, these types of attorneys are the exception and not the norm. It is best to remember that typically these troublesome attorneys are lacking in an important quality of some sort, whether it be of some personal nature or an inability or unwillingness to do the work required by the case, including but not limited to researching and understanding the applicable law and rules of procedure. Perhaps out of an unconscious fear or some feeling of inadequacy, such attorneys may be compelled to lash out and attempt to compensate in negative ways designed to deflect attention from these deficiencies by engaging in personal attacks or making the litigation process unnecessarily difficult. While the inherent notion of self-preservation compels us to steer clear of such attorneys wherever possible, we inevitably have to deal with them when a case calls upon us to do so. 

One way to deal with such "enemies," or all adversaries for that matter, is to keep them close. This can best be accomplished by knowing the facts and the law of the case better than your adversary does. To get a quick initial grasp of the law of a case, one can turn to the Pennsylvania Law Encyclopedia. In terms of an analysis of almost all substantive and procedural issues that may arise in civil litigation, there is no better resource than Stephen Feldman's The Pennsylvania Trial Guide. Cases on point with yours may be found in the more specific Negligence Instant Case Finder by Glenn A. Troutman. Furthermore, in automobile accident and insurance litigation, one can quickly secure an understanding of the applicable law from a review of Milford Meyer's Pennsylvania Vehicle Negligence and Pennsylvania Motor Vehicle Insurance 2d., by James R. Ronca, Leonard A. Sloane, David L. Lutz and Timothy A. Shollenberger, and edited by Bill Mabius. 

In terms of the Rules of Civil Procedure and forms related thereto, there are no better resources than Goodrich-Amram 2d Procedural Rules Service With Forms and Dunlap-Hannah Pennsylvania Forms. 

By having a full understanding of the facts and knowing the applicable law and rules of procedure at the commencement of a case, one can more effectively control a vexatious opposing counsel and move the case forward to its inevitable conclusion, whatever that may be. It is important to also remember that a case can only move forward by keeping opposing counsel close with continued communication. 

As aggravating as opposing counsel may become in such dealings, it is best to remain in control of your own emotions and hit them with kindness, good humor and rational explanations supporting your position. Always confirm everything in writing with these types of attorneys as a further method to keep them under control. Again, a positive way to view such a difficult situation is to remember that each communication will move the parties one step closer to the eventual resolution of the case, at which point you will no longer have to deal with that attorney. 

Thus, as enjoyable as the practice of law may be with your colleagues, the real challenge of the profession is to see your client's case through to its desired and just end by keeping your adversaries close and under control. 


"Fredo, you're my older brother and I love you. But don't ever take sides, with anyone, against the family again. Ever." Michael to Fredo in The Godfather 


The Rules of Professional Conduct require counsel to put their client's interests above all others in accordance with the law. An obvious principle, as expressed by Michael Corleone to his brother Fredo, is that one should never take actions or positions detrimental to the interests of the client unless, of course, you are ethically required to do so. Additionally, although the opposing case or client may be sympathetic, attorneys are ethically bound to put such emotions aside and to evaluate cases on an objective basis in the best interests of their own client. Expressions of doubt and/or a lack of confidence shown by an attorney in his or her own client's theory of the case or argument can be damaging and, at times, fatal. 

A consequential benefit of an unwavering loyalty, confidence, and belief in your client and his or her cause of action is credibility in the eyes of opposing counsel, the judge, and/or the jury. If an attorney does not publicly and convincingly exhibit his or her own belief in the client's case, no one else will. Credibility of the attorney and of the case presented will also be enhanced by raising and explaining away any weaknesses of the case as opposed to attempting to hide or ignore the same. 

Furthermore, part of fully representing your own client is placing yourself in the shoes of opposing counsel and immersing yourself into the facts of the case and the theory of the case from the other side's perspective. Unless and until you do so, you cannot fully appreciate the strengths and weaknesses of your own case. 

Accordingly, when preparing your client for a deposition or trial testimony, you should submit the client to a possible cross-examination in an effort to prepare him or her for the same. While preparing for any oral argument for the court, one should first prepare the argument for your own client, and then compose the argument for the opposition. Only by doing so, can one see and address the problems and weak points in your own argument. Additionally, at oral argument (and at closing argument at trial), it is wise to end your argument by advising the judge of the opposing arguments that you anticipate will be made and then explain to the judge why such arguments should be rejected. In doing so, you will raise your credibility by showing that you are not steadfastly and blindly presenting only your side of the case, but rather presenting both sides of the case and attempting to convince the court or jury why your client's position is the fair and just position. 


"I'm gonna make him an offer he can't refuse." Don Corleone to Johnny Fontaine in The Godfather 


In terms of settlement negotiations, it may be said that you can not sell something to someone they do not want to buy. When negotiating with opposing counsel, one should again put themselves in the position of that opposing counsel or client and attempt to frame any settlement offers in the best light from that perspective. 

For example, the value of settling a case now as opposed to after many more months of litigation or awaiting an opening in the court's schedule for a settlement conference or trial can be emphasized. The benefit of settling sooner in terms of interest on the settlement money or the effect on the potential for delay damages can be raised. Where the parties are engaged in a non-binding mediation and have reached an impasse, perhaps the offering of paying for the mediator's services by one party can spark further discussions to an ultimate resolution. By thinking of settlement from the other party's perspective and being creative and positive in framing your settlement offers, one may be able to effectuate a settlement of a case within one's range of value. 

In trying to settle a case, it must be remembered that emotions have no place in negotiations. If at all possible, check any emotions generated by the case or your interactions with the opposition prior to entering into any settlement negotiations. All attempts should be made by both parties to participate in the settlement discussions in the most objective and business-like manner possible. 

Attorneys should also take steps to control their clients and attempt to convince their clients to also put their emotions aside and to view the case in a business-like manner and in accordance with the attorney's advice as to the value of the case. Your client's reasonable and fair settlement position should be established prior to commencing negotiations and, if you are not able to reach a resolution on your terms, the parties should simply move on to the next step in the litigation process. One way or another, the case will inevitably conclude at some point. 


"I have always believed helping your fellow man is profitable in every sense, personally and bottom line." Michael to reporters in The Godfather, Part III 


Although Michael Corleone may have issued this statement with a sense of irony, it cannot be denied that helping your fellow man is indeed profitable in every sense. In addition to assisting all of our clients with their legal matters, an attorney may also profit on a personal level by taking on a pro bono case within the scope of their expertise wherever possible. Typically, an attorney may have their name placed on a list in the county's pro bono office with an identification of that attorney's area of expertise. In most cases, the pro bono office may call an attorney when a matter comes within that attorney's area of practice and the attorney may consider whether or not to take such a case after a conflicts check. Obviously, the handling of a pro bono case is not only looked upon favorably by all, but is also personally gratifying. 

Equally gratifying is the participation in and completion of volunteer activities in the community. There is never a lack of opportunities to do so whether such volunteer participation be needed by the Young Lawyers' Division of your county bar, your church, your town, or any other entity. 

In addition to the altruistic reasons in support of volunteering in the community, such activities have the consequent benefit as a source of networking and advertisement. By participating in charitable activities, one can come to know many different people as well as have your name or your firm's name disseminated to the public in a positive light. Participation in such activities may also go a long way in slowly but surely improving the always tarnished public image of attorneys. 

Ultimately, by participating in volunteer activities and helping your fellow man, one can obtain a great sense of accomplishment and personal fulfillment comparable to none. 


"[A] man who doesn't spend time with his family can never be a real man." Don Corleone to Johnny Fontaine in The Godfather 


While the demands and pressure to bill an exorbitant number of required hours or to spend many hours developing plaintiff's cases is great in the practice of law, there is no opportunity to replace missed moments with one's family. Many an experienced attorney with grown children have lamented the times they missed when their children were infants and toddlers and the times they could not make a little league game or recital all because they were so engrossed with the practice of law. Life is short and there are no second chances to recover such priceless moments. 

Whenever possible, a balance between work and life outside of work should be sought and encouraged. An attorney who spends most or all of his waking hours in the practice of law runs the significant risk of becoming a one dimensional person and ultimately burning out. It can be said that attorneys who develop their life outside of the practice of law, particularly with their families, but also in terms of their hobbies, recreational activities, and in exploring creative outlets, are more apt to have a higher productivity level when it comes to work. 

Obviously, the practice of law is an extremely stressful 24/7 profession. Some attorneys proudly (and sadly) boast that they rarely take time off from work. Such an attitude may prove counter-productive in the end. Spending and enjoying more time with one's family will tend to serve as a release from the pressures of work and lessen one's overall stress level which, in the end, results in a more healthy lifestyle overall. A more healthy lifestyle, in turn, may render you a more productive and efficient attorney. In the end, all aspects of your life both in and out of work will benefit. 


Conclusion 


An understanding and application of the universal principles enunciated by the great characters in The Godfather Trilogy to one's practice can improve one's abilities and may also serve to ease the stress generated by the profession. All in all, with the practice of law as demanding as it is in and of itself, an effort should be made by attorneys to deal with each other in an objective and professional manner without descending into personal animosity and attacks. Ideally, we should treat others as we desire to be treated and should maintain positive arguments supported by the law and facts of the case as opposed to attempting to pursue or defend a claim through negative and emotionally charged tactics or personal attacks. In the words of Clemenza from The Godfather, we should metaphorically, "Leave the gun. Take the cannoli." In the end, by leaving behind a negative or personal handling of a file and instead taking positive business-like approach to all cases, the practice of law as a whole will benefit. 


This article is reprinted here, with permission, from the August 29, 2005 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

Monday, March 21, 2022

Volunteer Jurors Needed for the PBA's High School Mock Trial Statewide Competition Finals Tournament (Virtual)

 


The Pennsylvania Bar Association Young Lawyers Division, is putting out a call for Judges, Attorneys, Claims Professionals, Paralegals, Legal Secretaries, and other interested persons to please consider volunteering your time to serve as a Mock Trial Juror from the comfort of your own home or office for the virtual State Finals Competition taking place later this week.If you are thinking that you do not need to volunteer because others will, please note that the turnout for volunteers this year has been low and the Competition has been very fortunate to have generous individuals who have volunteered to serve more than once so far.Now celebrating its 39th year, the PBA's Statewide Mock Trial Competition is ready for its State Finals Competition.  Over 200 teams and thousands of high school students from across the Commonwealth competing in the program work together, embracing the teamwork ideal, and prepare and try a legal case in court. Meanwhile, they hone their public speaking skills and learn valuable lessons about our legal system from the many volunteer lawyers participating in the competition. The State Finals Competition will see the top 14 teams from around the Commonwealth competing for the Championship. This year's State Champion earns the honor of competing virtually in the National Championship later this spring.Volunteers are needed to join on Zoom for the following competitions:

Round 1 - Thursday, March 24 at 4:30 p.m.
Round 2 - Friday, March 25 at 4:30 p.m.
Round 3 - Saturday, March 26 at 9:00 a.m.
Also scheduled is a potential playoff round for 1:00 p.m. on Saturday, March 26.

State Final Round - Tuesday, March 29 at 5:00 p.m.

Please consider helping the high school students from across the Commonwealth, as well as the Young Lawyers who have tirelessly worked on this competition, by volunteering to serve as a juror on one or more of the above dates and times so that the students can have a great Finals weekend.
TO REGISTER, PLEASE GO TO THIS LINK.Thank you.

Court Enters Judgment on the Pleadings on Promissory Estoppel Claim Based on Claims that Liability Carrier Allegedly Promised to Admit Liability Prior to Suit Being Filed



In a detailed Order, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a Motion for Judgment on the Pleadings relative to a promissory estoppel claim asserted by the Plaintiff in the slip and fall case of McCullon v. Byers, No. 21-CV-3832 (C.P. Lacka. Co. Feb, 9, 2022 Nealon, J.).

In this slip and fall case, the Plaintiff asserted that, prior to the litigation commencing, the alleged tortfeasor Defendant’s liability carrier had allegedly promised to the Plaintiff that the carrier would admit liability for the happening of the Plaintiff’s accident. The Plaintiff asserted that, on the basis of that alleged promise, Plaintiff’s counsel did not conduct any detailed discovery into the liability issues.

In the lawsuit filed against the Defendants, the Plaintiff asserted lump sum allegations against both Defendants, that is, the alleged insured tortfeasor and his liability carrier. 

In Count I, the Plaintiff alleged typical negligence cause of action relative to her allegedly slip and fall event down outside steps of the Defendant’s premises. 

In Count II of the Complaint, the Plaintiff generally alleged a claim of promissory estoppel and asserted that the Defendants should not be permitted to now deny liability based upon the alleged previous promise by the liability carrier not to contest liability.

With respect to this Order, the tortfeasor Defendant had filed a Motion for Judgment on the Pleadings asserting that he himself never made any promises to the Plaintiff and that, as such, the Plaintiff was not able to meet the elements of a claim of promissory estoppel. The tortfeasor Defendant also asserted that, in addition to not making any promises to the Plaintiff in this regard, the tortfeasor Defendant also asserted that he filed an Answer and New Matter not only denying liability but also alleging, in part, that the Plaintiff’s own contributory negligence was the cause of the Plaintiff's alleged injuries and damages.

After reviewing the elements of a cause of action for promissory estoppel, the court ruled in favor of the tortfeasor Defendant and granted a judgment on the pleadings relative to the promissory estoppel claim.

This decision is also notable for the fact that, in footnote 1 of the Order, the court also noted that it is improper to generally allege claims against all Defendants in a Complaint in a lump sum fashion.


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

Friday, March 18, 2022

Court Finds That Plaintiff's Claims Against College May Move Forward


 In the case of Baumbach v. Lafayette College, 2022 Pa. Super. 40 (Pa. Super. March 4, 2022 Panella, P.J. Dubow, J., and McCaffery, J.) (Op. by Dubow, J.), the court addressed whether a college owed a duty to a Plaintiff’s decedent who was struck and killed by a drunk driver while the student was walking along a roadway as she returned to the college from crew practice.

The Plaintiff alleged that the Defendant college and its agents breached a duty of care owed to the Plaintiff’s decedent and also intentionally misrepresented safety threats posed to crew members walking along the road to and from practice.

The trial court had granted the college Defendants’ Motion for Judgment on the Pleadings after finding that the Plaintiff had failed to establish that the college Defendants owed any duty to the Plaintiff’s decedent. The trial court additionally found that the Plaintiffs’ decedent did not justifiably rely upon the college Defendants’ alleged representations regarding the safety of walking or running along the roadway in question.

On appeal, the Pennsylvania Superior Court reversed both trial court findings.

With regards to the duty of care, the Superior Court noted that a party may, through his or her affirmative act, assume a duty to exercise reasonable care in the performance of the conduct. In this matter, the court stated the Plaintiff’s Complaint alleged numerous affirmative actions taken by the college with respect to the safety of the college students at the crew practice facility. As such, the Pennsylvania Superior Court found that the Plaintiffs had alleged sufficient facts to establish a prima facie case that the college Defendants undertook to act for the Plaintiffs’ decedent’s safety.

The Superior Court also ruled that the Plaintiffs also alleged numerous facts to support their intentional misrepresentation claim. 

For example, the court noted that the Plaintiff had alleged that the coaches had misrepresented that the roadway was safe for the team members’ use as pedestrians, while also periodically advising team members to run single-file and to keep an eye out for cars. The Plaintiffs had alleged that the coaches made these representations either knowing that the statements were false or without adequate knowledge about the safety conditions along the roadway while allegedly professing to have such knowledge. 

The Plaintiffs additionally asserted that the coaches knew that there had been a prior fatal pedestrian accident on the same roadway of the vicinity of the boat house the summer before the Plaintiff’s decedent had enrolled at Lafayette College. 

For these reasons, and other reasons, the court found that the Plaintiff’s allegations that the college Defendants’ alleged intentional misrepresentations were properly stated by the Plaintiff to establish a sufficient prima facie claim that the decedent had justifiably relied upon the college Defendants’ representations regarding the safety of the roadway.

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

Source of image:  Photo by Run 4 FFWPU on www.pexels.com.

Federal Court Addresses Daubert Motion Relative to Expert Testimony and Motion for Summary Judgment in Products Case


In the case of DiDonato v. Black & Decker (U.S.), Inc., No. 20-CV-4425-JMY (E.D. Pa. Feb. 9, 2022 Younge, J.), the court denied a Motion for Summary Judgment and a Motion regarding the admissibility of expert testimony under Rule 702 in a products liability case.

According to the Opinion, the Plaintiff was allegedly injured while cleaning a vehicle and using a power buffer/polisher manufactured by the Defendant.  

Relative to the issues raised by the defense with respect to the Plaintiff’s expert testimony, the court found that the Plaintiff’s expert’s testimony about an alternative design was admissible under Rule 702. The court noted that the reliability analysis with respect to an expert testimony looks at the reliability of the methodology as opposed to the conclusions of the expert. To be admissible, the expert’s testimony must also assist the trier of fact in resolving a factual dispute.

The court noted that it is not essential that an expert be able to recreate the facts of the accident. The court reasoned in this case that, while the accident in this case happened quickly while the Plaintiff was allegedly distracted while using the Defendant’s power tool, those facts did not preclude the Plaintiff’s expert from opining on the issue of causation.

In another important ruling, the court noted that experts are allowed to rely upon the testimony of witnesses, even where that testimony is disputed.

The court ultimately found that, since the Plaintiff’s expert’s testimony was admissible, the Plaintiff’s risk/utility theory of a designed defect survived the Motion for Summary Judgment.  However, summary judgment was granted with respect to the Plaintiff's claims of a manufacturing defect, and with regards to the breach of express warranties and failure to warn claims.

The court additionally noted that the extent to which the Plaintiff’s alleged carelessness and alleged failure to follow instructions caused the accident was an issue for the jury to decide.

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


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

Source of image (not the device in question):  Photo by Khunkorn Laowisit from www.pexels.com.

Thursday, March 17, 2022

Abington Heights High School (Clarks Summit, PA) Wins District and Regional Championship -- Moves on to State Finals

 


Congratulations to the Abington Heights High School Mock Trial Team from Clarks Summit, PA for winning the DISTRICT CHAMPIONSHIP last Tuesday and then winning the REGIONAL CHAMPIONSHIP last night in the Pennsylvania Bar Association's statewide High School Mock Trial Competition.

The Abington Heights High School Team will now move on to the State Finals Competition where they will make a run at trying to defend their State Championship Title from last year.  

Abington Heights will be one of 16 Teams in the Finals Competition out of the 205 Teams that started from around the Commonwealth of Pennsylvania that participated in the program this year.


ARTICLE: A St. Patrick's Day Parade of Proverbs

 Here's a "replay" of a previous article of mine in the spirit of St. Patrick's Day:




A St. PATRICK’S DAY PARADE OF PROVERBSby

Daniel E. Cummins

Pennsylvania Law Weekly
March 10, 2008

With the St. Patrick’s Day celebration of all things Irish many famous Irish proverbs come to mind. As the Irish have noted, “Proverbs can not be contradicted.” Applying Irish proverbs to the practice of law can be enlightening for as Irish playwright John Millington Synge once noted, “There is no language like the Irish for soothing and quieting.”


A closed mouth—a wise head.


Although the Irish are known for the gift of gab, they also recognize that sometimes, the less said the better. This can be seen in the practice of law in judicial opinions where judges write concisely in an effort to streamline their opinion on the issues presented and avoid the possibility of inadvertently raising appellate issues.

Litigators may benefit from speaking concisely when addressing the court or a jury. Another Irish instruction is to “Say little, but say it well.” For example, it is often recommended that trial counsel keep objections to a minimum so as not to irk the trial judge or appear as if one is attempting to hide something of importance from a jury. As the Irish also say, “A silent mouth never did any harm.”

Conversely, another wise Irish proverb is that “A loud voice can make even the truth sound foolish.” Bombastic and arrogant presentations by attorneys cause the immediate perception that what is being said is either devoid of merit or, at best, suspect. Efforts at tempering one’s argument in accordance with the applicable law and avoiding personal attacks on opposing counsel will only serve to add credibility to the position being advocated.


A good beginning is half the work.


Whether it be the first words spoken to a judge or jury or the opening sentences of a brief, the beginning of one’s presentation can make or break a case. Overworked judges reading hundreds of briefs and bored jurors will appreciate the fresh notion of arguments that quickly get to the point and remain there.

In terms of oral presentation to a judge or jury, first impressions last forever. The crux of an argument or the theory of the case should comprise the first words out of an attorney’s mouth. A concise description of the dispute presented and why fairness dictates a ruling in favor of one’s client should be forcefully advocated from the get-go.

With brief writing, the typical generic opening paragraphs providing a boring statement of the facts should be eschewed in favor of a more pointed story comprised of the impact facts crucial to the issue presented followed by a concise recitation of the reasons why the court should rule in one’s client’s favor.

The goal of the initial paragraphs of a brief should be to grab the attention of the reader and direct it immediately to the position advocated. Simply put, interesting writing is persuasive writing.


If a rogue deceives me once, shame on him.
If he deceives me twice, shame on me.



Unfortunately, at various times in one’s practice, attorneys have to deal with another attorney that, to use the Irish vernacular, can be described no better terms than as a scoundrel.

When dealing with such attorneys for the first time, one may make a mistake or let their guard down providing an opportunity for the other attorney to take an untoward advantage in the case. But as Irish novelist James Joyce once noted, “Mistakes are the portals of discovery.” Once it is discovered through a mistake that opposing counsel can not be trusted to play by the rules or act with professional courtesy, one can take steps to prevent the situation from occurring again.

It is unfortunate that attorneys can not always rely upon the courts for relief from vexatious and dilatory tactics of a recalcitrant opposing counsel. While such weasel-like attorneys may treat opposing counsel in a reprehensible fashion, they are usually wise enough to appear before the court in the character of Eddie Haskell, the bully from the old Leave It To Beaver television show, who always took on an oily obsequious manner whenever faced with an authority figure in order to stay out of trouble.

Judges have to be even-handed when dealing with such disputes and may not always be in a position to properly address the tactics of such an opposing counsel. One should rest assured, however, that these types of attorneys routinely appear before the court on repetitive and petty issues such that their reputation for vexatiousness becomes engrained and, hopefully acknowledged and punished.

What this Irish proverb suggests is that an attorney should keep negative tactics of a particular opposing counsel in the memory bank and share such information with other attorneys so as to limit the ability of the attorney to engage in improper or unnecessary behavior.

As sung by legendary Irish rocker Bono of U2 in the song “Acrobat,” “Don’t let the bastards grind you down.”


Remember, even if you lose all, keep your good name,
for if you lose that, you are worthless
.



An oft indicated principle or truth is that an attorney’s word is his bond. The Irish also proverbially quip that “A promise is a debt.” Developing a reputation for being good for one’s word and keeping promises is a virtue that can carry an attorney through his career above all else in terms of relations with the court and opposing counsel.

Without a doubt, a lawyer’s reputation precedes his interactions with all in the practice. When picking up new files, lawyers will typically first look to see who is on the other side and if that person is unknown, efforts will be made to ascertain the reputation of that attorney and how he or she handles cases.

Day in and day out, thoroughness and integrity in preparation and presentation along with punctuality and professional courtesy are the important building blocks of a solid reputation in the practice of law. Adherence to these positive characteristics will not only serve to enhance one’s stature among fellow members of the bar and the judiciary but may also allow one to secure an even more favorable result for one’s client.


If you lie down with dogs, you’ll rise with fleas.

Poor cases are often referred to in the practice as “dogs.” In developing one’s practice, while it may be understandable that an attorney may take on a few cases having difficult liability hurdles or questionable damages, it may be wise for counsel to avoid a proliferation of these cases such that one’s office turns into a dog pound.

Taking on too many troublesome cases can affect one’s reputation and the fleas from the dog cases might not only leech onto the attorney but may even possibly carry over and affect the value of the other more profitable cases in the office. As the great Irish poet William Butler Yeats once wrote, “But was there ever dog that praised his fleas.”

Accordingly, care should be taken in accepting new clients As the Irish also say, “If you put a silk dress on a goat, he is still a goat.” In other words, even the best of attorneys may not have the skills to put the shine on a tarnished case of little or no value. Attorneys may be wise to protect their reputations by refusing such cases in the first instance, or at the very least, referring them out for others to handle.


Never put off til tomorrow what you can do today.

As a catalyst for unnecessary stress, procrastination may be the worse enemy of an attorney. By continually putting off job tasks until the last moment, attorneys may be forced to scramble to complete a work product, such as a brief, and the end result is usually sub-par.

In keeping with the best possible service the client is entitled to by virtue of their entrusting their cause to an attorney, the better practice may be to look ahead to the following months deadlines and, wherever possible, immediately beginning the first drafts of any briefs, discovery requests or responses, or other written materials. In this manner, the work product can be started with sufficient time left to repeatedly revise the work product so as to strive to put out the best effort on behalf of the client.


If you dig a grave for others, you might fall into it yourself.

Stated otherwise, what goes around, comes around. The practice of law as a whole is better served by attorneys who assist one another and provide heads ups to one another of potential pitfalls.

The Rules of Professional Conduct, the Code of Civility and the PBA Working Rules of Professionalism are replete with instructions on professional courtesy. Periodic review of, and adherence to, these rules of professional conduct and courtesy can only serve to improve one’s reputation and benefit the practice as a whole.

Obviously, efforts should always be made to treat others with the respect, kindness and courtesy we would hope for in return. As the Irish also warn, “Be kind to those you meet as you rise, you may pass them again as you fall.”


A light heart lives long.


As overwhelming as the practice of law can be, with files and clients on one’s mind essentially 24 hours a day and seven days a week, it is important to attempt to maintain a balance between one’s work life and one’s life outside of work. The stress of the practice can weigh heavily on the heart over the years.

Directing all of one’s energy towards the practice of law and neglecting other aspects of life outside of the practice can quickly lead to a burnout or a disillusionment with the profession.

The great Irish dramatist George Bernard Shaw was once quoted as saying, “A day’s work is a day’s work, neither more nor less, and the man who does it needs a day’s sustenance, a night’s repose and due leisure, whether he be a painter or ploughman.”

Periodically getting away from the practice of law by vacationing or otherwise for periods of rejuvenation and a rediscovery of one’s sense of self and personal interests will inevitably make life more enjoyable and provide for a fuller existence. An attorney with a more balanced life may have a better physical and mental status and thereby be in a position to better serve his or her clients.

As this old Irish proverb proves, quality time spent with family, reconnecting with old friends, exercising, or engaging in long lost hobbies may not only add life to one’s years but also years to one’s life. May you live as long as you want, and never want as long as you live.


Daniel E. Cummins, Esquire is a partner with the Clarks Summit, Pennsylvania civil litigation firm of Cummins Law. Attorney Cummins focuses his practice on insurance defense and coverage matters all across Northeastern and Central Pennsylvania.




This article is reprinted here, with permission, from the March 10, 2008 issue of the Pennsylvania Law Weekly (c) 2008 Incisive Media US Properties, LLC, now known as American Law Media. The title of the article in the Pennsylvania Law Weekly was "A Parade of Proverbs." Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

Source of image:  Photo by Amy Shvets on www.pexels.com.

Monday, March 14, 2022

Jurors Needed for Regional Mock Trial Competition - VIRTUAL

 


Jurors are needed for the Regional Mock Trial Competition that is being held this Wednesday, March 16, 2022 at 6 p.m. virtually.

Individuals from anywhere in Pennsylvania can sign up to serve as jurors and to participate from the comfort of their own office or home.

To sign up, please contact Lori Siegel of the Monroe County Bar Association at info2@monroebar.org.

Please consider volunteering to help this great program.



Storm Damage Claim Dismissed Due to Lack of Prompt Notice to Carrier


In the case of Oneida Plaza, LLC, v. Ohio Security Ins. Co., No. 2:20-CV-04485-AB (E.D. Pa. Jan. 27, 2022 Brody, J.), the court granted an insurance company’s Motion for Summary Judgment in a property owner’s breach of contract claim arising out of storm damage.

According to the Opinion, the insured reported the claim to the carrier approximately eight (8) months after the damage allegedly occurred.

The court in this matter granted the carrier’s Motion for Summary Judgment which was based upon the carrier’s denial of coverage due to the Plaintiff’s failure to promptly report the claim.

The court found that the Plaintiff’s delay of eight (8) months in reporting the claims was unreasonable as a matter of law.

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

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

Source of image:  Photo by Alex Andrews from www.pexels.com.

Court Recognizes Duty of a Drug and Alcohol Treatment Facility to Prevent Drug Overdose of its Patients



In the case of Ramsey v. Salvation Army, No. 21-557 (W.D. Pa. Jan. 14, 2022 Dodge, Mag. J.), a Western District Federal Magistrate judge denied a Motion to Dismiss and found that a Plaintiff had sufficiently stated a claim for negligence in the treatment of the decedent’s drug addiction, even though the decedent ultimately broke the Defendant treatment facilities’s rules against drug use.  The decedent had a fatal overdose.

According to the Opinion, the Plaintiff's decedent had left the facility with two other residents to take drugs.  When they came back to the facility, the Plaintiff's decedent was incoherent and was being assisted into the facility by his friends back to his room.  Along the way, the individuals encountered at least two of the treatment facilities workers who did not intervene.  The next morning, the Plaintiff's decedent was found unresponsive and died later that same day.  

The court found that the Plaintiff had stated a plausible claim that the Defendant drug and alcohol in-patient treatment facility owed a duty to prevent in-patient residents from overdosing.

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

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

Eastern Federal District Court Rules That PA Law Does Not Allow for Strict Liability Claims Against Manufacturers of Medical Devices



In the case of McDonald v. Flowonix Medical, Inc., No. 21-1404 (E.D. Pa. Jan. 25, 2022 Tucker, J.), the court granted in part and denied in part a Motion to Dismiss in a products liability case involving a medical device.  In this case the device was a programmable infusion pump and catheter.

The court in this case found that Pennsylvania law does not allow for strict liability claims against manufacturers of medical devices. The court noted that, under the Restatement (Second) of Torts §402A, comment k applied across the board to bar all strict liability claims against prescription medical products, both drugs and medical devices.  Judge Tucker offered her prediction that, if faced with this issue, the Pennsylvania Supreme Court would extend comment k to prescription medical device cases to find that there is no valid claim for strict liability in that regard.

The court additionally found that the Plaintiff failed to plead any fact to supporting the express warranty claim and also failed to attach any written warranty to the Complaint.

The court additionally found that the claim of a breach of implied warranty was a form of a prohibited strict liability claim under the facts and circumstances presented in this case.

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

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

Friday, March 11, 2022

Daycare and Preschool Loses Bid To Secure Coverage Under Its All-Risk Policy for COVID-19 Losses


In the case of BSD-360, LLC v. Phila. Indem. Ins. Co., No. 20-4719 (E.D. Pa. Jan 13, 2022 Pratter, J.), an insurance carrier’s Motion to Dismiss was granted in a COVID-19 coverage case after the court ruled that the “insured gets what protection he pays for” and found that, while the policy in question covered losses for property damages and contains provisions related to communicable diseases, the Court found that the Plaintiff's claims were not covered.

According to the Opinion, the insured in this case was a daycare and preschool facility.  The court noted that the insured has purchased an “all-risk insurance policy.”

In early 2020, the daycare was forced to suspend operations due to the COVID-19 global pandemic. The insured sought to recovery under its insurance policy and the carrier denied the claim.

When the claim was denied, the insured sued both the insurance company and its insurance broker.

As noted above, the court found that the insured’s claim was not covered under the plain language of the insurance contract.  The Court noted that there was no claim that there was an "outbreak" of a communicable disease on the insured's premises or any "physical loss" of the premises.  As such, the case against the insurance company was dismissed under an application of New Jersey law.

After reviewing the records, the court also found that the Plaintiff had not alleged any negligence on the part of its insurance broker. As such, the broker’s Motion to Dismiss was also granted although this decision was based on an application of Pennsylvania law.

No leave to file an Amended Complaint was granted.

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


I send thanks to Attorney John Gerard Devlin of the Philadelphia law firm of Devlin Associates, P.C. for bringing this case to my attention.


Source of image:  Photo by Magda Ehlers on www.pexels.com.

Tuesday, March 8, 2022

Expert Reports May Not Be Required of Plaintiffs In Cases Where Causation is Obvious


In some personal injury cases, the relationship of a plaintiff's injury to an alleged act may be so obvious that expert testimony on causation may not be necessary.  

Such was the case in the matter of Schweikert v. Eagle, No. 20-4310 (E.D. Pa. Feb. 9, 2022 Goldberg, J.), in which the court denied a Defendant's Motion for Summary Judgment in a motor vehicle accident versus pedestrian case.  The Defendant filed the Motion on the basis that the Plaintiff had not produced an expert report on causation.

According to the Opinion, the pedestrian Plaintiff was allegedly struck by the Defendant's vehicle while the Plaintiff was in a crosswalk at 30th and Chestnut Streets in Philadelphia.  There was no dispute that the Defendant's vehicle struck the Plaintiff.

The Plaintiff was immediately transported to the emergency room where she was treated for complaints of back pain and a fracture to her wrist.  The Plaintiff then went on to continue to treat with various medical providers for complaints of neck pain, back pain and wrist pain and residual limitations.

According to the Opinion, the Defendants filed a motion for summary judgment after the Plaintiff failed to produce an expert report within the Court's deadline.    

In this regard, the court ruled that, while a plaintiff is required in most cases to produce an expert report to prove causation, expert testimony on causation is not always required in personal injury actions.  Rather, under an exception to the general rule, where there is an obvious causal connection between the injury and the alleged negligent act, expert testimony may prove unnecessary.

Here, the Plaintiff alleged physical injuries as a result of being struck the Defendant’s vehicle. The court noted that there was evidence of an obvious causal relationship between the injury and the alleged negligent act.

More specifically, the Plaintiff’s alleged injuries were immediate, the Plaintiff was taken to the hospital complaining of pain, and the injuries sustained were the type that were the natural results of being hit by a vehicle.

The court otherwise noted that the issue of whether the obvious causal connection extended to the Plaintiff’s claim of spinal injuries was a disputed issue of fact to be left to the jury.

With regards to the Plaintiff’s failure to produce an expert report, the court noted that, although the expert report deadline had passed, the Plaintiff could rely upon the testimony of her treating physicians as lay witnesses. The court noted that the Plaintiff had not missed any deadline for describing the substance of such testimony by her treating physicians. The court additionally noted in this federal court case that the Defendants had the opportunity to depose the treating doctors prior to trial as well.

Anyone wishing to review a copy of this decision denying the Defendant's Motion for Summary Judgment may click this LINK.  The Court's companion Order can be read HERE.


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

Source of image:  Photo by Cody Iannom on www.unsplash.com.

Monday, March 7, 2022

Court Rejects Plaintiff's Blaming COVID-19 Pandemic As a Reason for Failing to Complete Good Faith Efforts at Service


In the case of Bellan v. Penn Presbyterian Medical Center, 2022 Pa. Super. 32 (Pa. Super. Feb. 22, 2022 Bender, P.J.E., Murray, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s dismissal of a Plaintiff’s medical malpractice Complaint with prejudice based upon service of process issues.

According to the Opinion, the issue presented to the appellate court was whether the medical provider Defendant being closed for service for several months due to COVID, and, therefore not accepting service of process, equitably provided more time for the Plaintiff to serve the Complaint.  The Plaintiff asserted that these circumstances should be found to allow the Complaint to remain effective despite the fact that the Complaint was not reinstated, where the Plaintiff allegedly previously made a good faith attempt at service and where the medical provider Defendant allegedly suffered no prejudice from the timing of the service.

The court noted that, it was undisputed that the Plaintiff failed to serve the Defendant within thirty (30) days of filing the Complaint and did not attempt to reinstate the Complaint.  

Approximately five (5) months after filing the Complaint, the Plaintiff attempted to serve the Defendant by email. It was emphasized by the Defendant that the Plaintiff never sought to reinstate the Complaint or file any Affidavit of No-Service. As such, the Defendant filed Preliminary Objections regarding lack of service.

The Plaintiff responded by arguing, in part, that the Plaintiff had previously attempted to serve the Defendant at its general counsel’s office but was unsuccessful. According to the Plaintiff, the process server was informed that the workers at the general counsel’s office would not return until after 2020. 

The Plaintiff argued that the Defendant should have had someone left in charge to accept service or provide instructions to those attempting service. The Plaintiff additionally asserted that the Defendant has not suffered prejudice with regards to service.

After providing a detailed analysis of the current status of Pennsylvania law regarding proper service of original process, including the Pennsylvania Supreme Court’s recent decision in the case of Gussom v. Teagle, 247 A.3d 1046 (Pa. 2021), the Pennsylvania Superior Court emphasized that, although the Plaintiff timely commenced the lawsuit, the Plaintiff did not serve the Defendant within the thirty (30) days of filing the Complaint and did not seek to reinstate the Complaint as required by the Rules of Civil Procedure to maintain the validity of the Complaint. [Click this LINK to view the Tort Talk Blog post on the Gussom case and to access a link to that Opinion.].

The court in this Bellan case also emphasized that the record and docket confirmed that the Plaintiff took no action to serve the Defendant until the Plaintiff filed an Affidavit five (5) months after the filing of the Complaint claiming that the Defendant had accepted service via email on a date which was months after the statute of limitations had expired. 

In that email, an associate of the Plaintiff’s law firm contacted the defense counsel and informed them that the Plaintiff had unsuccessfully attempted to personal served the Complaint and inquired whether the Defendant’s attorney would accept the Complaint via the email. The response from a claims administrator at the office of defense counsel was that she was able to accept service by email or, in the alternative, was able to meet the Plaintiff’s process server on Wednesdays. Within an hour of the Plaintiff’s initial email, the claims administrator at the defense attorney’s office confirmed that she had accepted service of the Complaint on behalf of the Defendant.

The Superior Court agreed with the trial court that the record confirmed that the Plaintiff had not made good faith efforts to complete service.

With regards to the Plaintiff’s reference that they had attempted to complete personal service that was unsuccessful when the process server was informed by a front desk security guard at the general counsel’s office that no one would be working in the office until after 2020, the Superior Court found that the Plaintiff failed to explain why the Plaintiff neither filed an Affidavit of No-Service with the trial court or informed the trial court in any way that the Defendant had not been served with the Complaint, all of which was in violation of Pa. R.C.P. 405(a).

The Superior Court otherwise indicated that, after the Plaintiff’s first attempt at service was unsuccessful, the Plaintiff did not offer any evidence that he diligently made efforts to discover on how to serve the Defendant or provide any notice to the Defendant of the lawsuit.

The court otherwise indicated that the Plaintiff also did not seek permission from the trial court to use an alternative method of service pursuant to Pa. R.C.P. 430.

The court noted that the Plaintiff offered no explanation as to why the Plaintiff’s counsel could not have sent the email inquiry regarding service of process months earlier than the five (5) months after the Complaint was served that the email was sent. The court noted that, to the contrary, the Plaintiff’s counsel’s lack of due diligence was apparent in the case and the Plaintiff’s attorney’s “attempt to blame the COVID-19 pandemic as the cause of the lack of timely service is [was] misplaced.”

Moreover, the Superior Court noted that there was no evidence in the record to show that the Plaintiff’s actions gave the actual Defendant actual notice of the filing of the lawsuit in the timely manner. The court emphasized that the courts of Pennsylvania have never modified the Plaintiff’s duty to act diligently to serve notice of the commencement of a lawsuit so as not to undermine the policies that drive the statute of limitations.

Overall, the Superior Court agreed with the trial court that the Plaintiff had failed to produce evidence to show that the Plaintiff’s counsel had acted diligently in making a good faith effort to serve the actual Defendant with notice that the Plaintiff had filed a Complaint.

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

Source of Image:  Photo by Edgar Moran on www.unsplash.com.

Court Dismisses Class Action Seeking Partial Refunds of College Tuitions Relative to COVID-19 Virtual Classes

In the case of Brezinski v. Weidner University, No. 2:20-CV-04939-JMY (E.D. Pa. Jan. 28, 2022 Younge, J.), the court granted a Defendant University’s Motion to Dismiss a class action seeking a partial refund of university tuition due to the school’s switch to online instructions during the COVID-19 pandemic.

The court dismissed this claim where it found that the course materials and syllabi were insufficient to create an expressed contract obligating the university to provide in-person instructions.

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

Anyone wishing to review a copy of this decision may click this https://drive.google.com/file/d/1XiueB90_OMXpyqkVZ9kRqWg15sz546m8/view?usp=sharing.

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

Source of image:  Photo by Alena Darmel from www.pexels.com.

Friday, March 4, 2022

Jurors Needed for Mock Trial District Finals -- Virtual Participation




 

Court Rules that Personal Injury Claims By Parents of a Convicted Criminal Are Barred


In the case of Dinardo v. Kohler, No. 1905 EDA 2020 (Pa. Super. Jan. 26, 2022 Stabile, J., Bowes, J., Musmanno, J.) (Op. by Stabile, J.), the Superior Court reversed in part a lower court’s decision on Preliminary Objections in a case where the parents of a convicted criminal asserted claims against allegedly negligent medical personnel for not preventing their child’s criminal behavior.

The Pennsylvania Superior Court noted that the “no felony conviction recovery rule” is a subpart of the in pari delicto ("in equal part") doctrine, and that the application of this law precluded recovery under the case presented.

The court otherwise noted that the Pennsylvania courts do not assist convicted felons in collecting money damages that would not have occurred absent the criminal conviction.  The Pennsylvania Superior Court further noted that Pennsylvania follows the common law principle that a person should not be permitted to benefit through wrongdoing, particularly through criminal activity. 

As such, Pennsylvania law prevents a Plaintiff from recovering losses which flow from those criminal acts. The court otherwise stated that it would violate public policy to permit a person convicted of a serious crime to collect damages that would not have occurred absent the criminal conviction.

The court additionally noted that a criminal’s emotional distress from being convicted, along with the family’s litigation expenses due to such crimes, are not recoverable under Pennsylvania law.  A Plaintiff’s attempt to call such damages “compensation” is immaterial, since those alleged damages flow from the criminal conduct of the Plaintiff and, therefore, are not recoverable.

The court also noted that there is no medical malpractice exception to the in pari delicto doctrine.

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


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

Source of Images:  Photo by Scott Rodgerson on www.unsplash.com.