Last Day Lackawanna Bar Association Members To Register For This Friday's Bench Bar Conference

 

Lessons From The Godfather CLE Rescheduled for December 2, 2022

  

LESSONS FROM THE GODFATHER

An entertaining one hour ethics CLE that takes famous quotes from the movies that make up The Godfather Trilogy and applies them to the practice of law.

by

Daniel E. Cummins, Esq.

CUMMINS LAW

FRIDAY, DECEMBER 2, 2022

Noon to 1 p.m.

(1 Ethics CLE)

Live in the Presidents' Room in the Law Library in the Luzerne County Court House

and also 

via ZOOM

Technology Assistance to be provided by

CLE is Free for W-BLLA Members

$35.00 for Non-Members

TO REGISTER GO TO www.Luzernecountybar.com

(When registering, please be sure to provide your name and Attorney ID Number)

All payments must be received 48 hours in advance of the program

To pay by check:  Please mail check payable to the 

"Wilkes-Barre Law and Library Association."

Mail to the Law Library at: 

W-BLLA

Room 23

200 North River Street

Wilkes-Barre, PA 18711

If you have any questions, please call Gail Kopiak at

(570) 822-6712 or email Gail at 

Gail.Kopiak@luzernecounty.org

Court Finds No Liability Against Property Owners Assocation Relative to Location of Bus Stop

Judge David J. Williamson of the Monroe County Court of Common Pleas recently addressed the liability of homeowners associations in the case of Essington v. Monroe Co. Transit Auth., No. 5117-CV-2020 (C.P. Monroe Co. Aug. 15, 2022).

In Essington, the plaintiff’s decedent was fatally injured when he was hit by an oncoming car at night after exiting a bus at a bus stop that was located just outside of the residential gated community known as the Pocono Country Place Property Owners Association. 

The plaintiff asserted that the property owners association was negligent for failing to ensure that the bus stop located outside of their gated community was safe and/or for not allowing the buses to come inside the gated community to drop off passengers.

The court granted summary judgment in favor of the property owners association after finding that the property owners association had no control over the bus company’s selection and location of its bus stops and that, therefore, the property owners association owed no duty to the plaintiff’s decedent in this regard. 

The court additionally confirmed that there was no evidence in the record that the property owners association encouraged or endorsed its residents to use the bus system, let alone to use it at any particular stop.

Anyone wishing to review this decision may click this LINK.

Source:  "Digest of Recent Decisions. Pennsylvania Law Weekly (Oct. 3, 2022).

Source of image:  Photo by Darren Viollet on www.pexels.com.

LACKAWANNA COUNTY BAR MEMBERS: PLEASE CONSIDER SIGNING UP TO ATTEND NOVEMBER 4 BENCH BAR CONFERENCE

 

Motorcycle Accident Case Against PennDOT Regarding Pothole Allowed to Proceed

In the case of Texeira v. Commonwealth Dept. of Transp., No. 997 C.D. 2021 (Pa. Cmwlth. Aug. 30, 2022 McCullough, J.), the Commonwealth Court found that a trial court erred in finding that PennDOT has sovereign immunity in the Plaintiff’s negligence lawsuit over his motorcycle accident that was allegedly caused by a pothole.

The appellate court found that the trial court erred in granting summary judgment because the Plaintiff’s complaints to PennDOT about road conditions were not in writing and there were material issues of fact as to whether the customer service records were sufficiently to provide notice to PennDOT.

There were also issues of fact as to whether or not the potholes were patched prior to the accident.

The case was reversed and remanded to the trial court for further proceedings.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 27, 2022).

Source of image:  Photo by Ian Taylor on www.pexels.com.

Still Time To Sponsor Lackawanna Pro Bono Fundraising Gala Or To Register to Attend (Live or via Zoom)

 

Slip and Fall Case Against Store Dismissed, But Allowed To Proceed Against Realty Company

In the case of Pukanecz v. Target Corp., No. 5:22-CV-00327 (E.D. Pa. Sept. 1, 2022 Leeson, J.), the court granted a Defendant store’s Motion for Summary Judgment in a slip and fall case but denied a similar Motion filed by a realty company.

According to the Opinion, Plaintiff slipped in the store parking lot.

The Plaintiff sued the store, a realty company whose subsidiary owned the shopping center where the store was located. That subsidiary had contracted with a snow and ice removal contractor.

In this case, the Defendant store and the realty company moved for summary judgment.

The court found that no reasonable jury could find that the store had a duty to maintain the parking lot. More specifically, the terms of the store’s lease agreement required the landlord to maintain, repair, and operate the common elements, which were defined to include all parking areas.

The realty company argued that it did not own the property and was not liable for events that occurred on it. The realty company attempted to assert that any ownership liability lay with the subsidiary to whom the property was deeded. The Plaintiff countered with an argument that the realty company was directly liable for virtue of its direct involvement with an operation of the property.

The court found that there were genuine issues of material fact as to liability in this regard. As support for this finding, the court noted, in part, that the contract for the snow and ice removal referred, in multiple instances, to both the realty company as well as the subsidiary. That contract also required the snow removal company to indemnify the realty company against certain losses.

As such, the Court granted the Defendant store's Motion for Summary Judgment, finding that the store itself owed no duty to the Plaintiff.  Accordingly, Target was dismissed from the 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 (Sept. 27, 2022).

Source of above image:  Photo by Joshua on www.pexels.com.

Need a Mediator to Help Bring Your Trip or Slip and Fall 

Case to a Close?

DanCummins@CumminsLaw.net

(570) 591- 3969

Summary Judgment Granted In Slip and Fall Case Where Ice Storm Was Still Ongoing At The Time The Plaintiff Fell

In the case of Nunez v. Johnson & Johnson Consumer, Inc., No. 1093-CV-2022 (C.P. Monroe Co. Aug. 15, 2022 Williamson, J.), the court granted the Motions for Summary Judgment filed by Defendants in a slip and fall premises liability matter.

According to the Opinion, the Plaintiff was employed as a security guard at a warehouse facility. As the Plaintiff arrived for work one day, he slipped and fell in the parking lot.

The records before the court revealed that, on the day of the December 17, 2019 incident, it had been raining throughout the day with periods of freezing rain. The weather records before the court indicated that there was precipitation falling in the area from just after midnight that day until at least 2:34 p.m. later that same day, that is, until about forty (40) minutes after the Plaintiff had fallen at 1:50 p.m.

The court additionally noted that the Plaintiff confirmed during his deposition testimony that there had been icy rain falling that day before he left home for work and that such precipitation continued when he drove to work. The Plaintiff further acknowledged that, when he arrived at work and fell, the icy rain was still falling.

It was additionally noted that the snow removal contractor Defendant was still on site performing snow and ice removal services when the Plaintiff fell.

The court also noted that the Plaintiff reported that, when he arrived at the facility, he slipped and fell as he exited his vehicle. He then continued to slip while trying to get up and had to crawl to another vehicle that was parked in front of his vehicle to pull himself up from the ground. The Plaintiff then admittedly continued to slip on the icy ground as he walked to the building where he worked. The Plaintiff described that the entire area was icy, not just an isolated area by his vehicle.

The court noted that not all of the icy conditions that were still being created could be reasonably addressed prior to the time the Plaintiff had encountered those conditions.  As such, the court entered summary judgment in favor of both the landowner Defendant and the snow removal contractor Defendant based, in part, upon the fact that there was an ongoing winter weather event still occurring generally throughout the area at the time the Plaintiff fell. 

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 27, 2022).

Source of image:  Photo by Egor Kamelev on www.pexels.com.

Court Upholds Employer's Rejection Of UIM Coverage in a Case Where Employee Sought UIM Benefits

In the Grenell v. Zurich American Ins. Co., No. 2:21-CV-36 (W.D. Pa. Sept. 22, 2022 Cercone, J.), the court addressed challenges to UM and UIM rejection forms.

According to the Opinion, the Plaintiff was involved in a motor vehicle accident in August of 2019.

The Plaintiff settled with the tortfeasor for the liability limits and then secured UIM benefits from his own insurance company, which was the Agency Insurance Company.

The Plaintiff thereafter sought additional UIM benefits on the vehicle that he was operating at the time of the accident and which vehicle was provided to him by his employer. That vehicle was covered under an automobile insurance policy issued by Zurich American Insurance Company.

The record before the court confirmed that the Plaintiff was permitted to use the vehicle for business and personal use. The record also confirmed that the Plaintiff paid taxes on the benefits he received from the personal use of the vehicle.

According to the Opinion, the employer had rejected UIM coverage on the vehicle.

The Plaintiff challenged the validity of this UIM rejection under an argument that he was never notified of the rejection.

Cross Motions for Summary Judgment were filed.

The court held that the UIM rejection form was valid and enforceable. The court noted that the waiver was executed by someone with authority at the employer’s office to reject the coverage on behalf of the employer. As such, the court rejected the Plaintiffs’ arguments in opposition.

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


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

Please Consider Sponsoring or Attending (Live or via Zoom) the Lackawanna Pro Bono Fundraising Gala

Court Confirms Import of Judicial Admissions in Civil Litigation Matters

In the case of Powell v. Dominick, No. 22-CV-2753 (C.P. Lacka. Co. Aug. 10, 2022 Nealon, J.) entered a notable holding in a dispute between parties regarding proceedings during the course of efforts to secure preliminary injunction.

In this matter, the Plaintiff, Mark Powell, who is the Lackawanna County District Attorney, filed a declaratory judgment action in which he sought, in part, a declaratory judgment and injunctive relief relative to a county commissioner’s alleged attempt to excess and retrieve emails from the Lackawanna County District Attorney’s office on a certain issue.

Of note, the court noted that the commissioner Defendant asserted that she made a good faith effort to save time, taxpayer money, and frustration to resolve the litigation by submitting a Stipulation to the District Attorney. With that Stipulation, the commissioner attached her Reply Brief.

The court in this matter noted that “statements of fact by one party in pleadings, stipulations, testimony, and the like, made for that party’s benefit, are termed judicial admissions and are binding on that party.” See Op. at p. 3. The court noted that, based upon certain factual representation, the commissioner made in her Brief and Stipulation, which were filed of record, the court found that she had conclusively admitted to certain facts pertinent to the case presented.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 27, 2022).

Pennsylvania Supreme Court Applies General Verdict Rule to Uphold Verdict In Favor of Plaintiff

In the case of Estate of Cowher v. Kodali, No. 77 MAP 2021 (Pa. Sept. 29, 2022) (Op. by Dougherty, J.), the Pennsylvania Supreme Court reviewed waiver issues with respect to an appeal from the entry of a jury verdict.

According to the Opinion, the jury in this medical malpractice case awarded the Plaintiff a lump sum amount of damages under the Pennsylvania Survival Act and did not itemize the amount of pain and suffering damages or other components of its lump sum award.

During the course of the appellate history in this case, the Pennsylvania Superior Court had granted certain Defendants a new trial on the survival damages based upon those Defendants' claims that the admission of the Plaintiff’s expert testimony on the pain suffering issues was erroneous.

The issue before the Pennsylvania Supreme Court was whether the Defendants had waived their right to a new trial under the general verdict rule.

According to the Opinion, the general verdict rule applies and mandates a finding of a waiver of issues for appeal when a general verdict rests upon both valid and invalid grounds, and the appellant challenging the verdict failed to request a special verdict slip at trial that would have clarified the basis of the verdict.

In this case, the Pennsylvania Supreme Court concluded that those circumstances existed in this case and, as such, the Pennsylvania Supreme Court held, under the general verdict rule, that the Defendants had waived their request for a new trial. As such, the Superior Court’s Order for a new trial was reversed.

Anyone wishing to review a copy of this decision may click this LINK.  The Concurring and Dissenting Opinion by Justice Mundy can be viewed HERE.


Source: “Daily Opinion Summaries” from www.justia.com

Arbitration Clause From Uber Not Enforceable Where Plaintiff Did Not Click On It -- Right to Jury Trial Upheld

In the case of Chilutti v. Uber Technologies, Inc., No. 1023 EDA 2021 (Pa. Super. Oct. 12, 2022 Stabile, J., Dubow, J., McCaffery, J.)(Maj. Op. by McCaffery, J.(Dissenting Op. by Stabile, J.), the Court held that an arbitration agreement offered by the Defendant via a set of hyperlinked “terms and conditions” on a website or smartphone app that was never clicked on, viewed or read by the Plaintiff was not enforceable against the Plaintiff.

The Plaintiff was wheelchair bound and injured while riding in a car provided by Uber on his way home from a medical appointment.

The Plaintiff filed a negligence claim in the court of common pleas but Uber argued that the case was subject to a mandatory arbitration agreement found in the hyperlinked terms and conditions.

The trial court upheld the arbitration agreement as being applicable and granted Uber’s motion to compel arbitration.

Emphasizing the importance of the constitutional right to a jury trial, the Superior Court reversed and held that the arbitration agreement could not be asserted against the Plaintiff as the Plaintiff had not affirmatively agreed to the arbitration clause. The appellate court instead found that the injured party could invoke his constitutional right to a jury trial.

In so, ruling the Superior Court also issued a new standard of review to be applied to the question of whether or not a party had unambiguously manifested an intent to assent to an arbitration clause. See Op. at p. 30-31.

Anyone wishing to review this interesting decision and the dissent may click this LINK.


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

Court Relies Upon Doctrine of Forum Non Conveniens To Send a Case to Another State

In the case of Nwachan v. HomeGoods, Inc., July Term 2020, No. 2269 (C.P. Phila. Co. July 19, 2022 Shreeves-Johns, J.), the court issued a Rule 1925 Opinion to support its denial of a Motion for Reconsideration/Appeal relative to the court's previous granting of a Motion for Transfer of a Case from Pennsylvania to Delaware Under the Doctrine of Forum Non Conveniens.

The court held that the Motion to Transfer Under the Doctrine of Forum Non Conveniens had originally been properly granted due to the fact that the product at issue in this products liability case was purchased in Delaware and given that the Defendant company was also incorporated in Delaware.

The court additionally stated that Delaware was the appropriate forum due to the fact that relevant sources of proof were located in that state, where a Delaware Court would provide a more sufficient mechanism to compel discovery, and where all of the transactions and occurrences giving rise to the litigation had occurred in Delaware.

The court also noted that a Delaware state court was better positioned to apply its own laws and had a greater interest in hearing a case involving its own citizens.  

As such, this Philadelphia County Court of Common Pleas held that it did not commit an abuse of discretion in dismissing the matter under the doctrine of forum non conveniens. The trial court requested that the appellate court to dismiss the appeal as a result.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 27, 2022).

PLEASE NOTE: Lessons From The Godfather CLE Set For This Friday Has To Be Rescheduled

  

LESSONS FROM THE GODFATHER CLE 

TO BE RESCHEDULED

I am not swimming with the fishes.

I am unfortunately under the weather this week 

(Not Covid) and one of my symptoms is laryngitis!

My apologies for the inconvenience.

We will work to get this CLE rescheduled to take place within the next 30 days.

Thank you.

Application of Doctrine of Forum Non Conveniens Supports Transfer of Case (Non-Precedential)

In the case of McGuinness v. Elite Crete Systems, Inc., No.  1176 EDA 2021 (Pa. Super. Sept. 14, 2022 Sullivan, J., Nickels, J., Pellegrini, J.) (Op. by Sullivan, J.)(Non-Precedential), the Pennsylvania Superior Court affirmed a trial court’s granting of a Motion for Transfer of Venue under the doctrine of forum non conveniens.

According to the Opinion, this matter arose out of an explosion that occurred in Pittsburgh. The Plaintiff filed suit in Philadelphia.

In affirming the lower court’s decision, the appellate court stated that the cause of action had no relationship to Philadelphia County and all of the evidence and witnesses were located in Alleghany County.

The appellate court additionally noted that, to show the oppressiveness of the forum improperly chosen by the Plaintiff, a Defendant need not show near-draconian consequences from a trial in that chosen forum of the Plaintiff. Rather, a Defendant may establish that a Plaintiff’s chosen forum for a lawsuit is oppressive by showing that a trial in another county would provide easier access to witnesses and other sources of proof.

The appellate court viewed the doctrine of forum non conveniens as a necessary counterbalance to forum shopping by Plaintiffs.

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


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

 

Superior Court Affirms Application of Doctrine of Forum Non Conveniens (Non-Precedential)

In the case of Kendall v. Ford Motor Co., No. 2274 EDA 2021(Pa. Super. Aug. 31, 2022 McLaughlin, J., Bowes, J., and Stabile, J.) (Op. by McLaughlin, J.)(Non-Precedential), the court affirmed a lower court's transfer of venue based upon the doctrine of forum non conveniens.

The court ruled that the lower court had properly transferred this motor vehicle accident case from Philadelphia County to Bucks County.

It was noted that neither party resided in Philadelphia. None of the witnesses were located in Philadelphia. Additionally, the defense had provided Affidavits establishing witness hardships, as well as threats to the  compromised health of the individual Defendants if the case was kept in Philadelphia.

The court additionally noted that, while the travel time between the two (2) counties alone may be viewed as merely inconvenient to the Defendants, venue in Bucks County would make it easier for the parties to access both lay and professional witnesses as well as the site of the accident.

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


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

Please Consider Attending or Sponsoring Lackawanna Pro Bono Gala

 

Still Time To Register for Ethics CLE Set For A Week From Today (Attend Live or via ZOOM)

 

LESSONS FROM THE GODFATHER

An entertaining one hour ethics CLE that takes famous quotes from the movies that make up The Godfather Trilogy and applies them to the practice of law.

by

Daniel E. Cummins, Esq.

CUMMINS LAW

FRIDAY, OCTOBER 14, 2022

Noon to 1 p.m.

(1 Ethics CLE)

Live in the Presidents' Room in the Law Library in the Luzerne County Court House

and also 

via ZOOM

Technology Assistance to be provided by

CLE is Free for W-BLLA Members

$35.00 for Non-Members

TO REGISTER GO TO www.Luzernecountybar.com

(When registering, please be sure to provide your name and Attorney ID Number)

All payments must be received 48 hours in advance of the program

To pay by check:  Please mail check payable to the 

"Wilkes-Barre Law and Library Association."

Mail to the Law Library at: 

W-BLLA

Room 23

200 North River Street

Wilkes-Barre, PA 18711

If you have any questions, please call Gail Kopiak at

(570) 822-6712 or email Gail at 

Gail.Kopiak@luzernecounty.org

Court Rules That Misconduct by Defense Expert and Incredible Testimony By That Expert Was Harmless Under the Totality of Circumstances

In the case of McManus v. Walgreens Co., No. 21-CV-2285 (E.D. Pa. Aug. 30, 2022 Kenney, J.), the court denied the Plaintiff’s request for a new trial in a premises liability case that ended in a verdict for the Defendant.

According to the Opinion, there was misconduct by the prevailing defense counsel in surreptitiously having his expert conduct an on-site experiment, and hiding that information from plaintiff's counsel until it was revealed at trial. Although the court agreed that this was misconduct, the court found that the misconduct was harmless under the circumstances presented at trial.

More specifically, the court noted that, immediately after this information was revealed to the jury, it was objected to and the testimony was stricken.

Moreover, the jury was instructed to disregard this information. The court noted that jurors are presumed to obey instruction to disregard information presented at trial when so directed by the court. This presumption can only be overcome by circumstances indicating that the wrongfully admitted material was so overwhelmingly significant that the jury could not possibly disregard it.

The trial court judge additionally noted in his Opinion that this incident with the expert testimony was only a minor part of a lengthy trial.

The court additionally found that it was not an abuse of the discretion of the court to allow the remainder of that expert’s testimony to stand despite the expert’s mendacity. The court additionally noted that, in any event, every issue that the expert testified to was already on the record and the subject of multiple defense witnesses’ testimony.

In another notable decision out of this case, the trial court found that the admission of evidence of the lack of prior similar incidents was proper given that an adequate foundation was laid for the admission of this evidence.

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 of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Claims Against Nursing Home Related to Contracting Covid-19 Allowed to Proceed

In the case of Testa v. Broomall Operating Co., L.P., No. 21-5148-KSM (E.D. Pa. Aug. 18, 2022 Marston, J.), the court denied a Defendant’s Motion to Dismiss a Plaintiff executrix’s lawsuit over her mother’s death that allegedly resulted from contracting COVID-19 while residing at the Defendant’s nursing and rehabilitation facility.

The court found that the Defendant was not shielded from liability by the Public Readiness and Emergency Preparedness Act, or the Pennsylvania Emergency Management Services Code.

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


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

READY TO BRING THAT CASE TO A CLOSE BEFORE THE END OF THE YEAR?

(570)-319-5899

dancummins@CumminsLaw.net

COMPILATION OF THE ARTICLES ON THE SPENCER v. JOHNSON DEBATE REGARDING THE SCOPE OF THE FAIR SHARE ACT

A series of articles were recently published in The Pennsylvania Law Weekly on the debate over the issues of (1) whether a portion the Pennsylvania Superior Court's decision in Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021) on the scope of the Fair Share Act amounted to dicta and, (2) whether the Fair Share Act applied in cases which involved an innocent Plaintiff, i.e., a Plaintiff who is a guest passenger in a car in an accident, a Plaintiff who is subjected to medical malpractice while under anesthesia, etc.

Those articles are, as follows:

"Dicta, Dicta, Dicta:  Innocent Victim Plaintiffs and the Fair Share Act (Part 1)" by Daniel E. Cummins.  Pennsylvania Law Weekly (July 21, 2022).

"Dicta, Dicta, Dicta:  Innocent Victim Plaintiffs and the Fair Share Act (Part 2)" by Daniel E. Cummins.  Pennsylvania Law Weekly (August 4, 2022).

"Why 'Spencer v. Johnson' Is Precedential and Proper Statutory Construction" by Scott B. Cooper and Leonard A. Sloane.  Pennsylvania Law Weekly (September 8, 2022).

"A Measured Response:  Flawed Dicta on Fair Share Act in 'Spencer' Should be Rejected" by Daniel E. Cummins.  Pennsylvania Law Weekly (September 29, 2022).

These articles provide an overview of the arguments that may be presented by Plaintiffs and Defendants on the questions presented.

For your review and with the permission of the Pennsylvania Law Weekly, I have compiled these articles in the chronoligical order of their publication dates at this LINK.

Source of image:  Photo by Sora Shimazaki on www.pexels.com.