Thursday, July 28, 2022

Personal Injury Claim Based on COVID-19 Exposure Allowed to Proceed

In the case of Stiver v. Senior Health Care Solutions, LLC, No. 21-CV-842 (C.P. Lacka. Co. July 8, 2022 Nealon, J.), the court addressed various issues arising out of a COVID-19 personal injury claim.

In this matter, a nursing home employee, who claimed to have contracted work-related COVID-19 that allegedly caused permanent pulmonary and cardiac damage and required inpatient hospitalization, filed a corporate liability lawsuit against the owner and operator of the facility which allegedly declined to follow federal agency guidelines for the prevention and mitigation of the COVID-19 virus.

The Defendant owner/operator filed Preliminary Objections. 

In part, the Defendant asserted that it was immune from suit as the Plaintiff’s “statutory employer” under §302(a) of the Worker’s Compensation Act, 77 P.S. §46, or based upon the common law “borrowed employee” doctrine.

The court found that issues of fact prevented it from fully deciding whether the Defendant was entitled to such tort immunity. Accordingly, that argument was overruled without prejudice to the Defendant’s right to raise the issue again at this summary judgment stage of the litigation.

The Defendant owner/operator also filed a demurrer to the Plaintiff’s corporate negligence claim on the basis that the Defendant allegedly did not owe any duty of care to the Plaintiff.

Judge Nealon noted that, since the Plaintiff alleged that the Defendant owner/operator had breached its duty to formulate and implement adequate safety procedures and policies and to provide a safe work environment, this demurrer was denied.

The Defendant requested, pursuant to Pa. R.C.P. 1006(d)(1), a transfer of venue to the Cumberland County Court of Common Pleas based upon forum non conveniens grounds.

The court noted that, given that the Defendant has not submitted any affidavit from any prospective witness, or some other form of evidence, establishing that Lackawanna County is a vexatious or oppressive forum, the Defendant had not satisfied its heavy burden of proof warranting a transfer of venue from the Plaintiff’s chosen forum. As such, this petition seeking a transfer of venue under Rule 1006(d)(1) was denied.

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

Wednesday, July 27, 2022

Plaintiff's Failure To Uphold His End of The Bargain In An Insurance Contract Results in Dismissal of His Bad Faith Case

In the case of Guerrier v. State Farm, No. 19-2435 (E.D. Pa. June 6, 2022 Pratter, J.) (Mem. Op.), the court granted the carrier’s Motion for Summary Judgment and found that State Farm did not act in bad faith by instituting a subrogation action against its insured when the insured failed to notify the carrier about an auto accident and failed to respond to the carrier’s request for information seeking to confirm the insured’s liability coverage.  In light of this ruling the plaintiff's case was dismissed.

Judge Gene E.K. Pratter of the Eastern Federal District Court of Pennsylvania opened her Opinion by aptly stating that "[a] contract is a legal instrument designed to ensure each party holds up his end of the bargain.  When one party fails to do so, he cannot expect the other party to pick up his slack and then blame that other party for failing to do so."

Here, the Plaintiff-insured was found to have failed to uphold his end of the bargain and, as such, his case was dismissed by the court.

As noted, this matter arose out of a motor vehicle accident. At the time, the Plaintiff in this matter was insured by State Farm, although he was driving a loaner vehicle while his insured vehicle was being repaired. The carrier covering the loaner vehicle had denied coverage.

The court confirmed that, under the terms of the State Farm policy, the Plaintiff was required to give the carrier notice of the accident “as soon as reasonably possible.” The Plaintiff did not report the accident to State Farm.

However, the occupants of the other vehicle, which was also insured by State Farm did file a claim. State Farm then contacted the Plaintiff in this coverage case to confirm whether he had auto liability coverage but the Plaintiff failed to respond. As a result, State Farm initiated subrogation proceeds for the benefits it paid to the occupants of the other vehicle, and the carrier ultimately obtained a default judgment. The Plaintiff later learned of the default judgment when he was denied a renewal of his driver’s license due to nonpayment of the judgment.

The Plaintiff then filed this action for breach of contract and bad faith and other claims. The Plaintiff argued that State Farm had the information it needed to know that he was one of the companies insureds when the occupants of the other vehicle filed their insurance claim.

In this case, the court granted State Farm’s Motion for Summary Judgment. The court found that no reasonable jury could conclude that State Farm acted in bad faith.

Rather, the court held that the Plaintiff breach his obligation under the insurance policy to notify State Farm about the accident as soon as practicable.

The court also found that State Farm acted reasonably under the circumstances by contacting the Plaintiff to confirm his insurance coverage. When the Plaintiff failed to respond, State Farm assumed that he was uninsured and proceeded accordingly.

Moreover, the court noted that, once the Plaintiff did contact State Farm, the carrier promptly investigated the situation and then discontinued the subrogation action after confirming that the Plaintiff’s loaner vehicle qualified as a substitute vehicle under his policy.

Based on these findings, the court granted State Farm's motion for summary judgment and dismissed the Plaintiff's case.    

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 (July 5, 2022).

Source of image:  Photo by Pedro de Silva on

Tuesday, July 26, 2022


Sending thanks to the Wilkes-Barre Law Library Association for having me present my CLE "Golf Lessons: Tips on Professionalism and the Ethical Practice of Law" on Friday at the Association's Summer Outing/Golf Tournament at Fox Hill Country Club.

Also sending out a special thanks to Joe Cardoni, JP Cardoni, and Leah Kane at Exhibit A ( for helping me to put together the Powerpoint presentation and their help with the playback of the presentation.

I highly recommend Exhibit A for all of your trial presentation needs and for your video deposition and Zoom needs.

Monday, July 25, 2022

With Regards to An Insurance Policy's Definition of 'Residency,' Court Rules That An Insured May Have More Than One Residence

In the case of Isenberg v. State Farm Fire & Cas. Co., No. 21-CV-1147 (W.D. Pa. May 27, 2022 Schwab, J.) (Mem. Op.), the court addressed issues of insurance coverage in the context of a house fire.

In this case, the carrier asserted that it was entitled to summary judgment because the Plaintiff was not using the house as a residence at the time of the fire.

According to the facts of the case, the Plaintiff had purchased the house in 2018, and continued to live in her apartment during the renovations at the house, which renovations turned out to the more extensive than anticipated. Then, in 2020, a fire destroyed the home. The Plaintiff filed a claim under her homeowner’s policy.

The carrier rescinded the policy, alleging that the Plaintiff was not using the house as a residence.

The Plaintiff filed suit in state court and the carrier removed the case to federal court. After discovery was completed, the Defendant carrier moved for summary judgment.

As noted, the carrier asserted that was not using the property as a residence at the time of the fire. The insurance company additionally argued that a person could only have one “residence.”

The court ruled in favor of the Plaintiff.  In part, the court found that Pennsylvania courts and federal courts applying Pennsylvania law had agreed that a person was not limited to only being able to have one residence.

Rather, the case law suggested that residency was a question of physical fact and not the policyholder’s intention.

In this case, the record before the court revealed that the Plaintiff was physically present at house on an almost daily basis. There was also evidence that she had meals there, slept at the house on occasion, and had personal belongings in the house during the course of the renovations.

As such, the carrier’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 (June 14, 2022).

Source of image:  Photo by Jeffrey Czum on

Friday, July 22, 2022

Medical Malpractice Claim Against Defendant Doctor Dismissed For Lack of Timely Service of Process

In the case of Frye v. Wellspan Health, No. 20-SU-1116 (C.P. Adams Co. Feb. 4, 2022 George, P.J.), the trial court granted a Defendant’s Preliminary Objections to a Plaintiff’s medical malpractice Complaint on the basis that the Plaintiff failed to effectuate proper service on that particular Defendant.

According to the Opinion, the Plaintiff filed a medical malpractice action against a medical doctor who performed a procedure placing a spinal stimulator on the Plaintiff’s thoracic spine. The Plaintiff also sued the medical facility and other Defendants.  

The Complaint was filed just five (5) days before the expiration of the statute of limitations.

According to the record before the court, the medical doctor was not an employee of the hospital where the procedure was performed but rather, was an independent contractor.  The Plaintiff served the hospital and the remaining individual Defendants but not the medical doctor who performed the actual procedure. 

After nearly nine (9) months into litigation, the doctor at issue received word from his insurance company about the lawsuit but otherwise alleged that he never was served with a copy of the Complaint.  He also asserted that he never authorized anyone else to accept service on his behalf.

The Plaintiff’s argued that they believed that the doctor was properly served when they served the hospital with the Complaint.

The Defendant doctor at issue filed Preliminary Objections asserting that he was not properly served until approximately 9 ½ months after the expiration of the applicable statute of limitations.

After applying the law of the Pennsylvania Supreme Court ruling in the case of Lamp v. Heyman, 366 A.2d 822 (Pa. 1976), and its progeny, the court found that the Plaintiff had not acted diligently to meet the Plaintiff’s requirement of making a good faith effort to complete service of process upon the Defendant. 

More specifically, the court found that the Plaintiff did not make a good faith effort to investigate the doctor’s service address. Also, although the doctor had not responded to any of pleadings for approximately nine (9) months, the Plaintiffs made no effort to investigate whether that Defendant had actually received the Complaint.

As such, the trial court dismissed the Plaintiff’s medical malpractice Complaint against that Defendant doctor with prejudice.

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

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

Source of image: Photo by Ekaterina Bolovtsova from

Thursday, July 21, 2022

Split of Authority on Propriety of Allegations of Recklessness Continues

In the case of Meshinski v. Zim, No. 2022-CV-0434 (C.P. Luz. Co. June 27, 2022 Pierantoni, J.), the court sustained a Defendant’s Preliminary Objections asserted against the Plaintiff’s allegations of recklessness in the Plaintiff’s Complaint in this standard motor vehicle accident case.

The Order was issued without Opinion.

The court struck the allegations of recklessness from the Plaintiff’s Complaint and dismissed the same without prejudice.

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

There remains a split of authority on this issue, not only in Luzerne County, but also across the Commonwealth of Pennsylvania.  

It appears that a strong majority trial courts across Pennsylvania reject the notion that allegations of recklessness can be pled with reckless abandon in any personal injury case whatsoever regardless of the facts presented.  

Those courts in the majority on this issue instead follow the rule of law and the doctrine of stare decisis, as confirmed in numerous Pennsylvania appellate court decisions, that Pennsylvania is a fact-pleading jurisdiction such that sufficient supporting facts must be pled before a claim of recklessness should be allowed to stand. 

Tuesday, July 19, 2022

Split of Authority Continues in Luzerne County On Proper Pleading of Recklessness in Personal Injury Actions

In the case of Markiewicz v. Avanti of Drums, Inc., No. 2022-CV-03926 (C.P. Luz. Co. July 12, 2022 Gelb, J.), by Order only, Judge Lesa Gelb of the Luzerne County Court of Common Pleas denied Preliminary Objections filed by Defendants against allegations of recklessness contained in the Plaintiff's Complaint in a premises liability case.   

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

Presently there is a split of authority within the Luzerne County Court of Common Pleas on this issue with some Judges ruling that allegations of recklessness must be supported by allegations of sufficient facts in the Complaint, and other Judges holding that claims of recklessness can be pled with reckless abandon regardless of the facts pled.

Click this LINK to view other Tort Talk posts on decisions in this regard from around the Commonwealth of Pennsylvania.

Here is a LINK to my article on the issue that was published in the PBA Quarterly earlier this year in January of 2022.

Law Passed Regarding Peer-To-Peer Carshare Rentals and Insurance Requirements

 In a new law passed by the Pennsylvania Legislature, effective immediately, new insurance ground rules were set for peer-to-peer carshare rentals.

The law defines "Peer-to-peer carsharing" as "[t]he authorized use of a vehicle by an individual other than the vehicle's owner through a peer-to-peer carsharing program.  The term does not include a rental car obtained through a rental car company."

The law outlines the insurance coverage requirements for companies engaging in peer-to-peer carsharing, and mandates an additional layer of insurance so that injured third parties won't be left uninsured if a car owner's policy includes execeptions for livery (for-hire vehicles) activities or business activities.

It appears that, under the law, insurers are allowed to exclude coverage to an insured in the event the insured rents a peer-to-peer car, such that the renter would have to utilize the insurance coverage secured by the peer-to-peer carshare company, which coverage is permitted to be provided at the minimum levels required by the Motor Vehicle Code.

The Bill can be viewed at this LINK.

Source: Article - "'Last-Minute' Amendment Establishes New Law for Peer-to-Peer Car Rentals, Catches Litigators Off Guard" by Max Mitchell of the Pennsylvania Law Weekly (July 18, 2022).

Source of image:  Photo by Why Kei on

Arbitration Provision In Nursing Home Agreement Found To Be Unconscionable and Unenforceable

In the case of Kohlman v. Grane Health Care Company, No. 103 WDA 2021 (Pa. Super. July 5, 2022 Kunselman, J., King, J., and Collins, J.) (Op. by Collins, J.), the court affirmed a trial court’s overruling Preliminary Objections asserted by various Defendants that sought to compel arbitration of the claims asserted against them by the Plaintiffs.

This case arose out of medical malpractice claims related to treatment secured by the Plaintiff at a skilled nursing home.

The court noted that, in connection with her admission to the nursing home, the Plaintiff's decedent had signed a number of documents including an arbitration agreement.

After the Plaintiffs filed suit in the Court of Common Pleas, the Defendants filed Preliminary Objections seeking to compel arbitration. The trial court overruled the Defendant’s Preliminary Objections and this appeal resulted.

The appellate court agreed with the trial court that the terms of the arbitration agreement were unconscionable.

The court affirmed despite noting that both Pennsylvania and federal law impose a strong public policy in favor of enforcing arbitration agreements. 

The court also acknowledged that the enforcement of an arbitration agreement may be denied only where the party opposing arbitration proves that a contract defense that applies equally to non-arbitration contracts serves to invalidate the agreement to arbitrate.  In this matter, the contract defense of unconscionability of the contract terms was raised.

The Superior Court noted that, to invalidate or bar enforcement of a contract based on unconscionability, the party challenging the contract must show both an absence of meaningful choice, also referred to as procedural unconscionability, and that the contract terms that are unreasonably favorable to the other party, known as substantive unconscionability. 

The Superior Court additionally noted that procedural and substantive unconscionability are assessed under a sliding/scale approach, with a lesser degree of substantive unconscionability required where the procedural unconscionability is very high.

In this Kohlman case, the appellate court agreed with the trial court findings that the arbitration agreement was procedurally unconscionable because the decedent was in pain and was medicated at the time she signed the arbitration agreement, the decedent was alone when she was asked to sign the arbitration agreement, the decedent had no opportunity to read the arbitration agreement and was not given a copy to review prior to her signing the same, and where the provisions of the agreement were not otherwise fully read or explained to the decedent. The court therefore ruled that the process by which the decedent’s signature was obtained on the arbitration agreement denied the decedent a meaningful choice and, therefore, the arbitration agreement was found to be procedurally unconscionable.

The appellate court also agreed with the trial court finding that, on the issue of substantive unconscionability, the provision in the agreement requiring that the decedent pay one half of the cost of any arbitration, including one half of the arbitrator’s fees, was substantively unconscionable because it imposed additional expenses for bringing a claim that the decedent would not have to bear in a court action. The appellate court agreed that this term of the agreement unreasonably favored the nursing home and, therefore, was sufficient to satisfy the requirement of showing substantive unconscionability, particularly where, as here, the record, according to the appellate court, established that the decedent was not given full information regarding her choices or any opportunity to inform herself of what she was signing.

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

Source: “Article “Nursing Home Can’t Enforce ‘Unconscionable’ Arbitration Clause and Wrongful Death Suit, P.A. Appeals Court Rules,” by Aleeza Furman. Pennsylvania Law Weekly (July 6, 2022).

Monday, July 18, 2022

Need a CLE Credit? Pesenting This Friday


Chester County Trial Court Grants Motion to Bifurcate and Stay a Bad Faith Claim

In the case of Windon Country Homes Condo. Ass’n, Inc. v. The Netherlands Ins. Co., No. 2021-01545-MJ (C.P. Chester Co. March 14, 2022 Sommer, J.), the court issued a detailed Order in which it granted a Defendant carrier’s Motion to Sever the Plaintiff’s Breach of Contract Claims from the remaining claims of fraud and bad faith. The court also stayed all discovery in connection with the Plaintiff’s bad faith and common law fraud claims until the resolution of the claim for breach of contract.

In its detailed Order, the court did not appear to provide the facts of the case.

After reviewing Pa. R.C.P. 213(b) regarding the standards for severance of claims, the court considered the case to one where bifurcation was appropriate. In this regard, the court noted that, if the carrier prevailed on the breach of contract claim, discovery on the remaining issues would not be required.

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

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

Wednesday, July 13, 2022

Court Addresses Circumstances Under Which A Deponent May Properly Assert Fifth Amendment Right Against Self-Incrimination

In the case of Sweet v. The City of Williamsport, No. 20-CV-00512 (C.P. Lyc. Co. June 27, 2022 Linhardt, J.), the court addressed the circumstances under which a civil litigant may properly assert his or her Fifth Amendment rights against self-incrimination at a deposition.

According to the Opinion, this case arose out of a fatal motor vehicle accident.

When the opposing parties requested the deposition of the Defendant driver, counsel for the Defendant driver advised opposing counsel that the Defendant driver would be asserting his Fifth Amendment rights against self-incrimination relative to any questions regarding the facts of the accident.

The opposing parties challenged the ability of the Defendant driver to assert his right against self-incrimination at the deposition, in part, due to the fact that the Defendant driver had already been previously convicted of several summary traffic offenses arising out of the subject incident and that the provisions of 18 Pa. C.S.A. §110(1)(ii) would bar future prosecutions against the Defendant driver thereby vitiating the Defendant driver’s need to assert his Fifth Amendment rights at the deposition.

The opposing parties filed a motion to compel the Defendant driver to attend a deposition and to answer the questions that would be presented relative to the accident.    

In its Opinion, the court affirmed that, under §110, in most cases, a past conviction would bar a future prosecution based upon the same conduct or arising from the same criminal episode. The court noted that the Pennsylvania Supreme Court had recently confirmed that this rule applies even when the previous conviction was for traffic summaries rather than misdemeanors or felonies.

However, it was acknowledged by the court that there was an exception that allowed further prosections for situations in which evidence in support of an additional offense was not known to the prosecuting officer at the time of the commencement of the first criminal trial.

In this matter, the Defendant driver voiced a concern about the possibility of his being prosecuted for new charges arising out of the subject accident if his testimony at a deposition revealed evidence that would support new offenses not previously known by the prosecuting officer at the time of his trial on traffic summaries.

In that regard, the question became whether the Defendant driver had a reasonable basis to fear self-incrimination. In assessing this question, the court in this case noted that the Pennsylvania Supreme Court has stated that “for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of the circumstances that the witness is mistaken in the apprehension of self-incrimination."

The court concluded that the Defendant driver in this case did have a reasonable fear of self-incrimination and, as such, could not be compelled to testify at the deposition in the case without retaining the right to assert his Fifth Amendment rights. 

More specifically, the court noted that the prosecutor could interpret deposition testimony by the Defendant driver to show possible recklessness in the Defendant driver’s actions which could support additional criminal offenses in a matter where the prosecutor may have only been aware of conduct amounting to carelessness before the deposition was completed.

In its Opinion, the court emphasized that the Defendant driver need not establish what he might testify to at a deposition, and that the court could not obviously compel the Defendant driver to explain the factual basis of his fear of self-incrimination, as such a compulsion would pervert the Fifth Amendment right against self-incrimination. Rather, the court allowed the Defendant driver in this case to explain why, at least theoretically, his fear of self-incrimination was reasonable in an effort to establish that it is not “perfectly clear” that the Defendant driver was “mistaken in his apprehension of self-incrimination….”

After a review of the submitted arguments, the court ruled that the Defendant driver could not be compelled to complete a deposition at which he was not entitled to assert his Fifth Amended rights against self-incrimination. 

However, the court also noted that the parties were exploring the possibility of the Defendant driver securing an immunity agreement from the prosecutor at issue.

It was confirmed by the court that, if the Defendant driver secured an immunity agreement from the district attorney, the Defendant driver would have no further fear of future prosecution based upon any deposition testimony in which case the Defendant driver would be compelled to attend the deposition and not be permitted to assert his Fifth Amendment rights against self-incrimination.

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

Monday, July 11, 2022

Claim For Negligent Infliction of Emotional Distress Dismissed Where Plaintiffs' Distress Arose Later, Long After the Physical Impact

In the case of Russell v. Educ. Comm’n For Foreign Med. Graduates, No. 2:18-CV-05629-JDW (E.D. Pa. May 19, 2022 Wolson, J.) (Mem. Op.), the court addressed a unique issue with regard to a claim for negligent infliction of emotional distress in a medical malpractice setting.

This case involved a class of plaintiffs who had received treatment from an individual who had allegedly used fraudulent documents to assert that he was a medical doctor who had completed all of the requirements to practice medicine. This person had been certified by the Defendant commission as a valid doctor.

The Plaintiffs in the class had received treatment from the individual between 2012 and 2016.

Thereafter, the Plaintiffs learned about the individual’s identity in 2017 and 2018.

The Plaintiffs filed suit against the Defendant commission who had incorrectly certified the individual as a valid member of the medical profession. In that Complaint, the Plaintiffs asserted claims for negligent infliction of emotional distress as a part of a class action involving numerous Plaintiffs.

The court in this matter confirmed that Pennsylvania Supreme Court had not addressed the particular issue, that is, whether Plaintiffs could raise a negligent infliction of emotional distress claim when they learned new information about some previous event.

The court in this Russell case stated that, under Pennsylvania law, Plaintiffs had been limited in their ability to pursue negligent infliction of emotional distress claims given that the court had required Plaintiff to suffer physical impact, be in a zone of danger, observe a tortious physical injury to a close relative, or to cases where the Defendant had a special contractual or fiduciary duty owed to the Plaintiff. 

The court additionally noted that the only cases that had relaxed the requirements that the emotional distress at issue be contemporaneous with a physical impact were those cases involving an exposure to disease.

In this Russell case, the Plaintiff alleged that they suffered physical impacts when they received medical treatment from the individual.

However, the court noted that the emotional distress did not accompany that impact. Rather, the alleged emotional distress arose later when the Plaintiffs learned about the individual’s arrest and about his background. The court additionally noted that, between the physical impact and the gathering of the knowledge about the individual’s arrest and background, there was no ongoing threat or risk that caused any of the Plaintiffs’ distress.

Rather, the alleged emotional distress of the Plaintiffs was a product of their re-conceiving their memories in light of the new information gathered.

Judge Wolson in this Russell case predicted that the Pennsylvania Supreme Court would not recognize a negligent infliction of emotional distress claim under these types of facts. The court noted that, while the Plaintiffs' alleged emotional trauma was real, the Pennsylvania Supreme Court had repeatedly made clear that not everyone who experiences an emotional trauma has a legal remedy under Pennsylvania law.

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 (June 7, 2022).

Thursday, July 7, 2022

Federal Court Keeps Case in Federal Court After Plaintiff Joins Defendants In Apparent Attempt to Destroy Diversity

In the case of Testa v. Broomall Operating Company, L.P., No. 2:21-CV-05148-KSM (E.D. Pa. May 26, 2022 Marston, J.), the court addressed a Defendant’s Motion to Strike a Plaintiff’s Amended Complaint and a Plaintiff’s Motion to Remand the Case to State Court in a matter arising out of a rehabilitation and nursing home negligence case.

According to the Opinion, it was alleged that the Plaintiff’s decedent passed away after contracting COVID-19 at the facility.

After the suit was filed, the Defendants removed the action to federal court on the grounds of diversity and federal question jurisdiction.

Thereafter, the Plaintiff amended her Complaint as of right and clarified that she was not bringing claims under a Federal act and the Plaintiff additionally added the claims of negligence and wrongful death against individual Defendants. The individual Defendants were residents of Pennsylvania and thereby defeated complete diversity.

In response, the Defendants moved to strike the Amended Complaint. The Plaintiff opposed the motion and moved to remand the case back to state court.

The Defendants argued that the joinder of the individual Defendants was impermissible. 

The court exercised its power to review the joinder under F.R.C.P. 21. The court additionally applied federal law and found that, based upon the timing of the filings and Plaintiff’s counsel’s concessions at oral argument, it appeared to the court that the Plaintiff was aware of the identity of the added individual Defendants at the time the case was initiated. 

The court additionally stated that the lack of any “John Doe” Defendants in the original Complaint made it more likely that the individual Defendants were added for the purpose of destroying diversity. 

It was additionally noted that an email Plaintiff’s counsel sent to defense counsel shortly before amending the Complaint supported that theory.

The court additionally restated that the Plaintiff waited over three (3) months from the time she allegedly learned of the individual Defendants’ identities to name them as parties to the action. It was also noted that the Plaintiff did not offer up any legitimate justification for the delay in the joinder.

The court was also influenced by the fact that the Plaintiff would not be prejudice by the absence of the individual Defendants from the lawsuit.

As such, the court found that the applicable factors to be considered weighed in favor of striking the joinder. Accordingly, the court struck the claims brought against the individual Defendants, which restored the complete diversity in the case.

Given that there was complete diversity in the case, the court denied the Plaintiff’s Motion to Remand the case to state court.

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

Wednesday, July 6, 2022

Pennsylvania Superior Court Addresses Standard of Review For Opening of Judgment Non Pros (Non-Precedential)

In the case of Mark v. McCarthy, No. 991 EDA 2021 (Pa. Super. June 8, 2022 Dubow, J., McLaughlin, J., and King, J.) (Mem Op. by Dubow, J.) (non-precedential), the Pennsylvania Superior Court reversed a trial court’s denial of a Defendant’s Motion to Open a Judgment of Non Pros after finding that the trial court’s reasoning that the Plaintiff’s estate failed to act with diligence was untenable in a case where the the trial court based its decision, in part, on the grounds that the estate did not make Rules absolute within two (2) days. 

In this case, it appeared that the Plaintiff needed pre-Complaint discovery to survive a demurrer and filed multiple motions in an attempt to avoid entry of a judgment of non pros.

According to the Opinion, the estate argued, in part, that because the Defendant had concealed assets of the estate, the estate could not file a Complaint without first conducting pre-Complaint discovery.

In this non-precedential decision, the Pennsylvania Superior Court provided a nice update on the Rules applicable to the entry of judgment non pros and efforts to open the same.

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

I send thanks to Attorney Elizabeth Anderson of Anderson Law Office in Hawley, Pennsylvania for bringing this case to my attention.

Tuesday, July 5, 2022

Punitive Damages Claims Based Upon Cell Phone Use By Bus Driver Allowed to Proceed to Jury

In the case of Brown v. White, No. 2:21-CV-01387-KSM (E.D. Pa. May 25, 2022 Marston, J.), the court denied a Partial Motion for Summary Judgment seeking the dismissal of claims of punitive damages in a bus accident case.

According to the Opinion, this matter involved a Plaintiff passenger who filed suit against a Greyhound bus driver and his employers alleging, in part, that the driver was reckless in using his cell phone while driving a bus on an overnight trip with 22 passengers.

The record before the court also indicated that, while the Plaintiff slept for most of the trip, she allegedly woke up twice when the bus veered onto rumble strips on the edge of the road. She was also allegedly awoken again at 4:45 a.m. when the bus rear-ended a tractor trailer. It was alleged that the tractor trailer was illuminated and clearly visible but that the bus driver allegedly did not see the tractor trailer until immediately before impact. It was also asserted that the bus was traveling at 72 mph at the time.

In its Opinion, the court noted that, under Pennsylvania law, punitive damages are an extreme remedy that may be awarded only when a Plaintiff has established that a Defendant has acted in any outrageous fashion due to either the Defendant’s evil motive or his or her reckless indifference to the rights of others. The court further noted that a Defendant acts recklessly where his or her conduct creates an unreasonable risk of physical harm to another and such risk is substantially greater than that which is necessary to make his or her conduct negligent.

Judge Marston noted in her Opinion that, while cell phone usage while driving, without more, is typically insufficient to support a finding of recklessness, courts applying Pennsylvania law have held that cell phone usage may rise to the level of recklessness where aggravating factors render the cell phone usage particularly egregious.

In this case, the court found that a reasonable jury could find that the bus driver was using his cell phone while driving. The court noted that a dash cam video from ten (10) seconds before the accident appeared to show a glowing light in the bus driver’s lap near his left hand, which a reasonable jury could understand to be from a cell phone.

The court additionally noted that the bus driver’s cell phone records showed that he used a substantial amount of data in the three (3) hour window around the accident.

The court additionally emphasized that the bus driver was driving a large bus with twenty-two (22) passengers on an overnight trip and that the bus driver was driving a fast as the bus could possibly go, that the bus driver was possibly driving with one (1) hand on the steering wheel. The court also pointed to evidence that the bus driver never tapped the brakes prior to the subject rear-end collision.

The court noted that there were several aggravating factors present in the case that could render the bus driver’s cell phone usage particularly egregious. As such, since the court found that a reasonable jury could find that the bus driver was reckless under the circumstances, the court refused to dismiss the Plaintiff’s punitive damages claims by way of this partial Motion for Summary Judgment.

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

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

Source of image:


Friday, July 1, 2022

New Monetary Limit for Rule 1311.1 Appeals From Arbitrations Goes Into Effect Today

In an Order that goes into effect today, July 1, 2022, the Pennsylvania Supreme Court has put into place a new rule amending Pennsylvania Rule of Civil Procedure 1311.1 to change the maximum limit of what a plaintiff may elect as the value of damages that they can recover in a trial on appeal from an arbitration award.

Under the old rule, that limit was set at $25,000.

Under the new rule, the maximum limit has been changed to "an amount equal to the jurisdictional limit for compulsory arbitration of the judicial district in which the action was filed."

While different judicial districts have differing jurisdictional limits for arbitration, that limit is capped at a maximum $50,000 under Section 7361 of the Judicial Code.

Research should be completed to confirm the jurisdictional limit in which the case is pending to determine the maximum amount that a plaintiff can claim at a jury trial in a case on appeal from an arbitration award as those limits can be different depending upon which County Court the case is pending in.

The Pennsylvania Supreme Court's Order approving this amendment to the Rule can be viewed HERE.   The amended Rule 1311.1 can be viewed HERE.

Source:  Article:  "New Arb Appeal Awards Rule Aims to Reduce Apparent Defense Bias." by Aleeza Furman of the Pennsylvania Law Weekly (May 31, 2022).

Source of image:  Photo by Sasun Bughdarvan on