CUMMINS LAW IS HIRING

 

Associate Attorney - Insurance Defense Firm

Clarks Summit, PA

Cummins Law, an Insurance Defense Firm located in Clarks Summit, PA, seeks a full-time associate attorney preferably with 1-3 years experience.  Judicial clerkship experience a plus.  Attorney will be tasked with handling all aspects of the defense of civil litigation matters, with a focus on auto accident and premises liability matters.  Excellent writing, communication, research and analytical skills required.

Cummins Law offers a friendly, fast-paced office environment along with an excellent benefits package, including a 401(k) plan, and medical, dental, and vision coverage.

Interested candidates should submit a cover letter, resume and writing sample along with salary requirements to info@CumminsLaw.net.

Case Dismissed Due To Untimely Filed Amended Complaint Being Found to Be a Legal Nullity

In the non-precedential decision by the Pennsylvania Superior Court in the case of Tabb v. Thomas, No. 72 EDA 2022 (Pa. Super. March 2, 2023 Panella, P.J., Stabile, J. and King, J.) (Mem. Op. by Panella, P.J.), the Pennsylvania Superior Court addressed the ability of a Plaintiff to file an Amended Complaint after the time allowable for the same has expired. 

In this case, which arose out of a slip and fall matter, the Plaintiff started the lawsuit with a Writ of Summons and then filed a Complaint. The Defendant responded with Preliminary Objections. When the Plaintiff did not reply to the Preliminary Objections, the court sustained the same and dismissed the Plaintiff’s Complaint.

Thereafter, without leave of court, or agreement or consent of the Defendant, the Plaintiff filed an Amended Complaint raising essentially the same claims. The Defendant again filed Preliminary Objections raising the same issues as raised before and adding an argument that Amended Complaint was untimely filed and that the Plaintiff had failed to seek the leave of court or the Defendant’s agreement prior to the filing of the Amended Complaint.

In response, the Plaintiff filed a Second Amended Complaint, again without the permission of the trial court or the agreement of the Defendant. The Defendant responded with Preliminary Objections again.

Thereafter, the Plaintiff filed a Third Amended Complaint, again without the permission of the trial court or the agreement of the Defendant. The Defendant raised the same arguments in his Preliminary Objections, again asserting that the Plaintiff had failed to seek leave of court or the Defendant’s agreement to file the additional Amended Complaint. 

The trial court sustained the Defendant’s Preliminary Objections in this regard, finding that the Plaintiff had failed to seek leave of court or the agreement of the Defendant to file the Amended Complaint. The court also held that the Amended Complaints were void and should be stricken. As such, the case was dismissed by the trial court with prejudice. The Plaintiff then filed this appeal.

On appeal, the Pennsylvania Superior Court affirmed the dismissal of the case by the trial court.

The Superior Court rejected arguments by the Plaintiff that what was before the court were mere technical errors that the Plaintiff should not be punished for due to his counsel’s failure to strictly adhere to the court rules. 

The Superior Court also rejected an argument by the Plaintiff that amendments to allegations in a Complaint must be liberally allowed to secure a speedy determination of the action. 

The Superior Court additionally rejected the Plaintiff’s arguments that the Amended Complaint should be allowed as the Defendant did not suffer any prejudice given that the Defendant was aware of the claims presented.

The trial court additionally rejected the Plaintiff’s separate argument that, even though the trial court struck the various Amended Complaints, the original Writ of Summons remained valid such that the Plaintiffs should be allowed to further litigate the Writ.

In so ruling, the Pennsylvania Superior Court confirmed that a Plaintiff has an automatic right to amend the Complaint within twenty (20) days of the filing of a Defendant’s Preliminary Objections as per Pa. R.C.P. 1028(c)(1).

The Superior Court also noted that, if the Amended Complaint is not filed within twenty (20) days, the Plaintiff must obtain either the Defendant’s consent or leave of court to file an Amended Complaint under the mandate of Pa. R.C.P. 1033(a).

In this matter, the Pennsylvania Superior Court held that, given that the Plaintiff did not ever request leave of court to file an Amended Complaint nor the consent of the Defendant to do the same, the Plaintiffs later filed Amended Complaint was a legal nullity.

The court rejected the Plaintiff’s argument that the trial court had and an obligation to sua sponte allow an amendment of the Complaint.

Given the Plaintiff’s failures, the Superior Court in Tabb agreed with the trial court's ruling and upheld the finding that that the Plaintiff had waived his claims under the circumstances presented. 

Given that the Plaintiff is found to have waived his claims, the appellate court affirmed the trial court’s dismissal of the case with prejudice.

Although the Tabb decision was listed as non-precedential, the Superior Court cited to the Pennsylvania Rules of Civil Procedure and precedential appellate court decisions on point to support its decision in this matter.    

Anyone wishing to review this non-precedential decision of the Pennsylvania Superior Court in the case of Tabb v. Thomas may click this LINK.

Source: “Pennsylvania Civil Law Case Alerts Issued by Fastcase.com.” (March 4, 2023).

Source of image:  Photo by Jon fabrikasimf on www.freepik.com.

Pennsylvania Superior Court Reviews Immunity Provisions of Mental Health Procedures Act in Case of Voluntary In-Patient Examinations

In the case of Matos v. Geisinger Medical Center, No. 1189 MDA 2021 (Pa. Super. March 10, 2023 Stabile, J., Bender, P.J.E., Stevens, P.J.E.) (Op. by Stabile, J.), the court, addressing an interlocutory appeal that was allowed by permission, affirmed the trial court's denial of the Defendant's motion for summary judgment in a medical malpractice case involving the application of the Mental Health Procedures Act.

The Superior Court agreed that a Defendant is not absolutely immunized from a Plaintiff’s lawsuit under the Mental Health Procedures Act.

According to the Opinion, in this matter, the Defendants allegedly refused a patient’s attempt to commit himself voluntarily for in-patient treatment and, shortly thereafter, that patient killed his girlfriend, who was the Plaintiff’s decedent.

The court found that the immunity requirements under the Mental Health Procedures Act are different for involuntary and voluntary treatment scenarios.

The Pennsylvania Superior Court ruled that mental health facilities can be liable for the refusal to provide voluntary in-patient examinations and treatment when the refusal amounts to a willful misconduct or gross negligence on the part of the Defendant.

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


I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm.

INTERVIEW: The Status of Zoom In the Courtroom in Pennsylvania

I was recently interviewed by Attorney Matt Doebler of the Pittsburgh, PA law firm of Pribanic & Pribanic on his Youtube Channel known as the Online Litigator. The topic of discussion was "Zoom Court in PA: Where Do We Stand?"

To view the interview in its entirety, please click this LINK.

To the extent you may wish to jump to particular topics that were discussed, I offer up the following more specific Links.

We talked about the types of proceedings that are on the table for Zoom court in Pennsylvania. (To jump straight to this portion of the video, click here.).

We reviewed the current status of efforts to enact a statewide rule on Advanced Communication Technology (ACT) in the courtrooms of Pennsylvania. (To jump straight to this portion of the video, click here.).

We talked about the Lackawanna County local rule concerning Zoom court. (To jump straight to this portion of the video, click here.).

We discussed the fact that, so far, Lackawanna County is the only Pennsylvania jurisdiction to have a local rule on remote court. (To jump straight to this portion of the video, click here.).

We talked about what--exactly--the Lackawanna County local rule says. (To jump straight to this portion of the video, click here.).

We talked about the Lackawanna County local rule serving as a possible model for other jurisdictions to follow in adopting their own local rules. (To jump straight to this portion of the video, click here.).

I discussed the hope that the Pennsylvania Supreme Court will still revisit the issue and pass a statewide rule of civil procedure addressing ACT. (To jump straight to this portion of the video, click here.).

Finally, we talked about the positive response to Zoom court from lawyers and judges in Lackawanna County. (To jump straight to this portion of the video, click here.).


I thank Attorney Matt Doebler of the Pittsburgh, PA law firm of Pribanic & Pribanic for the opportunity to discuss this important topic on his Youtube Channel known at the Online Litigator.

Pribanic & Pribanic is a personal injury firm in Pittsburgh that represents injured parties in cases involving medical malpractice, birth injuries, motor vehicle accidents, products liability, slip or trip and falls, as well as involving workers compensation issues.

I encourage Tort Talkers to check out Attorney Doebler's Youtube Channel at this LINK now and in the future for updates and tips on the practice of law through the use of advanced communication technology (ACT), or Zoom and the like.

Certificate of Merit Report Found To Be Good Enough To Start Case, But Not To Take Case To Trial

In the case of Dodson v. Univ. of Pitts. Med. Ctr., No. CV-19-01803 (C.P. Lyc. Co. Jan. 9, 2023 Linhardt, J.), the court granted a medical malpractice Defendant’s Motion for Summary Judgment after finding that, while a Plaintiff produced a physician’s statement that satisfied the Pennsylvania Rules of Civil Procedure regarding Certificate of Merit given that statement asserted that deviations from some applicable standard of care likely caused the Plaintiff’s injuries, that same statement was found to have failed to establish the elements of the Plaintiff’s medical malpractice claim to a prima facie level to enable the Plaintiff to proceed to a jury trial.

This matter arose out of medical treatment that included surgery which the Plaintiff alleged resulted in a serious infection that required additional surgery. The Plaintiff alleged that the Defendant was negligent in the performance of both procedures, which resulted in a below knee amputation.

The court found that the Plaintiff’s physician’s statement was conclusory, lacking in detail, and was based upon limited medical information. While the Certificate of Merit was challenged earlier in the case, the case was allowed to proceed because the Certificate of Merit asserted some deviation from an applicable standard of care and contained a conclusion that those deviations likely caused the Plaintiff harm.

However, at this later summary judgment stage, the court noted that, in medical malpractice suits, parties are required to produced their expert reports in order to proceed to a trial. In this matter, the Defendant asserted that the Plaintiff failed to produce any expert report other than the above statement that had been provided relative to the Certificate of Merit.

The court agreed and found that the statement provided by the Plaintiff with the Certificate of Merit failed to establish the elements of the Plaintiff’s medical malpractice claim to even a prima facie level.

The court noted that, when it had previously denied the Defendant’s Motion to Strike the Certificate of Merit, the court had foreshadowed in that decision that the Plaintiff had failed to produce any evidence that any particular doctor had violated any duty of care while treating the Plaintiff.

Judge Linhardt otherwise noted that the mere fact of an infection, or of a surgical complication, in and of itself, was insufficient, in and of itself, to establish that negligence had occurred, let alone who was responsible for it.

As such, the Defendant’s Motion for Summary Judgment was granted.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 21, 2023).

Pennsylvania Superior Court Finds That NJ Transit Not Entitled To Sovereign Immunity Relative To Bus Accident in Pennsylvania

In the case of Galette v. N.J. Transit, No. 2210 EDA 2021 (Pa. Super. March 21, 2023 Bowes, J., Lazarus, J., and Olson, J.) (Op. by Bowes, J.), the court addressed whether the New Jersey Transit Corporation was entitled to sovereign immunity from a personal injury motor vehicle accident lawsuit arising out of an accident that occurred in Philadelphia.

The trial court had denied the Motion to Dismiss filed by N.J. Transit based upon an argument that that Defendant was an arm of the State of New Jersey and was protected by the state afforded governmental and sovereign immunities such that the Plaintiff’s Complaint was barred and should be dismissed.

On appeal, the Pennsylvania Superior Court affirmed the trial court's denial of the motion to dismiss..

N.J. Transit had asserted that the case against it should have been dismissed for lack of jurisdiction where N.J. Transit, as a foreign state entity, did not provide consent to be sued in another state and where that Defendant had rightfully asserted its state sovereign immunity protections under the United States Constitution.

After reviewing the history of the legal doctrine of sovereign immunity, which dates back to English common law, and after examining the relevant case law, including United States Supreme Court precedent, the Pennsylvania Superior Court rejected N.J. Transit’s arguments that it should be dismissed from the case.

The Superior Court noted that the issue of sovereign immunity often rises in the context of interstate lawsuits. The court noted that, under the law, it was not automatically incumbent upon one State to recognize the sovereign immunity of another State.

The court also noted that, although the State of New Jersey was not directly named as a Defendant in this suit, well-settled law holds that sovereign immunity does also extend to entities which are agents or instrumentalities of a state such that a lawsuit brought against the entity would, for all practical purposes, be considered to be a suit against the state itself.

As such, the court addressed the issue of whether N.J. Transit was an instrumentality of the State of New Jersey as it alleged.

The Superior Court noted that N.J. Transit relied upon a previous decision out of the Third Circuit Court of Appeals which had previously held that N.J. Transit does indeed qualify as an instrumentality of the State of New Jersey for purposes of sovereign immunity.

However, the Superior Court noted that the holdings of the Third Circuit are not binding upon the Pennsylvania Superior Court.

Turning to Pennsylvania’s own 6-part test on whether sovereign immunity should be applied, the court in this Galette case ultimately found that that test was not dispositive on the question.

As such, the court noted that it was required to address whether allowing N.J. Transit to be sued would thwart the two principal purposes of the Eleventh Amendment, that is, the protection of New Jersey’s dignity as a sovereign State and the protection of New Jersey’s Treasury against involuntary depletion of funds by virtue of lawsuits brought by private persons.

In coming to its ruling, the Pennsylvania Superior Court analogized cases that are brought against SEPTA, or the Southeastern Pennsylvania Transit Authority, in Pennsylvania. 

The court noted that, in such lawsuits, those suits proceed against SEPTA alone, as a wholly independent entity and without the involvement of the Commonwealth of Pennsylvania. As such, the Commonwealth cannot be subject to any Order of Court as a result of such a personal injury suit. Therefore, no right or interests of the Commonwealth would be affected by the outcome of any lawsuit against SEPTA in Pennsylvania courts. Consequently, personal injury lawsuits against SEPTA do not pose any danger that the Commonwealth itself would be involuntarily subject to and controlled by the mandates of the courts, without its consent, at the instance of private parties.

Based upon this analysis, the court in this Galette case found that the particulars of N.J. Transit’s status with respect to the State of New Jersey was similar. N.J. Transit was noted to be a distinct legal entity that is empowered to sue and to be sued in a capacity that is independent from the State of New Jersey.

The court found that there was no risk to the sovereign dignity of the State of New Jersey in permitting a suit against N.J. Transit to proceed. The court also noted that any potential judgment against N.J. Transit would not have any discernible impact on the New Jersey Treasury.

Based upon this analysis, the court found that the Plaintiff’s personal injury lawsuit posed no threat either to the sovereign dignity or the State Treasury of New Jersey. As such, the court concluded that N.J. Transit was not an arm of the State of New Jersey in this context. 

Consequently, the court ruled that N.J. Transit was not entitled to protections of sovereign immunity which it had asserted. Accordingly, the trial court’s denial of N.J. Transit’s Motion to Dismiss was affirmed by the Pennsylvania Superior Court in this Galette case.

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


Source: “Pennsylvania Civil Law Case Alerts,” Fastcase.com as provided by Pennsylvania Bar Association.

Federal Court Allows Amendment To Complaint To Add Punitive Damages Claims in Trucking Accident Case

In the case of Stelzer v. Stewart Logistics, Inc., No. 1:21-CV-02097 (M.D. Pa. March 10, 2023 Kane, J.), the court granted a Plaintiff’s Motion to Amend under F.R.C.P. 15(a) in a trucking accident case to allow the Plaintiff to add a claim for punitive damages after discovery was found to have supported such a claim.

The court held that the punitive damages claim was neither late nor unduly prejudicial. In this regard, the court stated that, the fact that punitive damages are not covered by insurance is not considered to be prejudicial as that term is defined in this context.

The court otherwise found that the Plaintiff’s requested amended allegations of both a subjective appreciation of the risk and an alleged conscious disregard of the risk of danger to others were plausible under the amended facts. More specifically, the Plaintiff was alleging that the Defendant driver allegedly concealed a medical condition, falsified federally required time logs, and ignored lane markings on the road.  As such, allowing the amendment was deemed not to be a futile effort on the part of the Plaintiff.

The court additionally noted that the Defendant driver’s employer could be vicariously liable for punitive damages under the case presented.

The court also ruled that the claim for direct punitive damages against the employer were also plausible on the negligent hiring claim.

As such, the Plaintiff was granted leave to amend his Complaint.    

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 law office of the Reed Smith law firm.

Source of image:  Photo by Brian Stalter on www.unsplash.com.

CUMMINS LAW IS HIRING

Associate Attorney - Insurance Defense Firm

Clarks Summit, PA

Cummins Law, an Insurance Defense Firm located in Clarks Summit, PA, seeks a full-time associate attorney preferably with 1-3 years experience.  Judicial clerkship experience a plus.  Attorney will be tasked with handling all aspects of the defense of civil litigation matters, with a focus on auto accident and premises liability matters.  Excellent writing, communication, research and analytical skills required.

Cummins Law offers a friendly, fast-paced office environment along with an excellent benefits package, including a 401(k) plan, and medical, dental, and vision coverage.

Interested candidates should submit a cover letter, resume and writing sample along with salary requirements to info@CumminsLaw.net.

Court Addresses A Number of Notable Trial Issues in a Shooting Case That May Apply In Many Other Types of Civil Litigation Trials

In the case of Rogers v. Thomas, No. 1915 MDA 2018 (Pa. Super. March 2, 2023)(en banc) (Op. by Stabile, J.)(Concurring Op. by Kunselman, J.), the court addressed a number of post-trial issues following a multi-day wrongful death and survival action jury trial arising out of a fatal shooting incident.

Of note, the Pennsylvania Superior Court addressed whether the doctrine of collateral estoppel applied to the shooter’s criminal conviction arising out of the same incident so as to conclusively establish the shooter’s liability in this civil litigation. In the end, the court found that, under the doctrine of collateral estoppel, the shooter’s conviction for voluntary manslaughter conclusively established the facts that were determined in his criminal trial relative to the shootings.  

However, the appellate court in this civil litigation confirmed that the results of the criminal trial did not answer the questions of causation or comparative fault in this personal injury matter.  Rather, those questions remained to be determined in this civil trial before a jury could consider whether or not to award damages. See Op. at 11-12.

In so ruling, the Pennsylvania Superior Court provided a detailed recitation of Pennsylvania precedent on the effect of collateral estoppel upon civil proceedings following a previous criminal conviction.

The court also addressed the issue of whether the concept of comparative negligence applies in cases where a Defendant has engaged in intentional or reckless conduct as was alleged in this matter.

The Pennsylvania Superior Court noted that, “[a]lthough our Supreme Court has not addressed the issue, both this Court and our sister court, the Commonwealth court, have held that the Comparative and Negligence Act does not apply in a situation where a Plaintiff may be guilty of negligence, but a Defendant has acted recklessly.”  See Op. at 22 [citations omitted].

Here, the shooter argued that the Plaintiffs were wrong in arguing that the doctrine of comparative negligence should not have been applied. The shooter argued that there had never been any determination in any court that the conduct of the shooter was found to be “willful, wanton, or reckless.” 

The Superior Court noted that the plain language of the criminal statute pertaining to voluntary manslaughter did not contain any requirement of a finding that a person acted recklessly to be guilty of that crime.

The court went on to note that, even though the shooter may have acted intentionally, there still remained a question as to whether or not the shooter was justified in believing that his actions were in self-defense and, as such, potentially not reckless. 

The court confirmed that a person may have been found to have acted intentionally, but that does not necessarily mean that they also acted recklessly. 

As such, the Superior Court in this Rogers case found that the Plaintiffs were incorrect in asserting that intentional conduct necessarily covers reckless conduct.  See Op. at 23-24.

This decision is also notable in that the court found that the Plaintiffs had waived a number of issues by failing to follow the appellate rules establishing the procedures necessary to preserve issues for appeal.

In one instance, the court found that the Plaintiffs had waived their challenge to the trial court’s previous coordination order in which a Lackawanna County lawsuit was coordinated with a Susquehanna County lawsuit.  In this regard, the Pennsylvania Superior Court noted that the Pennsylvania Rules of Appellate Procedure 311(c) allows a party in a civil action to take an interlocutory appeal as of right from an Order changing venue and/or transferring a case to another court of coordinated jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens.

The court noted that a failure to lodge an interlocutory appeal in this scenario constitutes a waiver in any subsequent appeal of related challenges to decisions by the court.

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

The Concurring Opinion by Judge Kunselman can be viewed HERE.


I send thanks to Attorney Gary Weber of the Williamsport, Pa law firm of Mitchell Gallagher, P.C. for bringing this case to my attention.

Counsel's Failure to Edit Videotape Deposition of Expert For Trial As Agreed By Parties Found to be Harmless Error

In the case of Bell v. O’Neill, Oct. Term 2019 No. 03845 (C.P. Phila. Co. Nov. 16, 2022 Foglietta, J.), the trial court issued a Rule 1925 Opinion follow the entry of a verdict in favor of the Plaintiff in an automobile accident litigation matter.

The court denied the Defendant’s post-trial motion seeking a new trial and related relief.

In part, the court found that the failure of the Plaintiff to redact video tape deposition testimony of the Plaintiff’s medical expert as agreed to by the parties did not warrant a mistrial.  

In the testimony at issue, the Plaintiff's medical expert stated during his testimony that jurors “can see” with their own eyes the Plaintiff’s injury in the medical imaging.  The court noted that the erroneous playback of this testimony, which was rephrased during the course of the videotaping after an objection was asserted by defense counsel, did not warrant a declaration of a mistrial where other admissible testimony made similar points.

The trial court noted that it had also issued a prompt curative instruction admonishing the jury to disregard the testimony at issue.

The court also found that, if there was an error, it was a harmless error.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 14, 2023).

Source of image:  Photo by Sandi Clarke on www.unsplash.com.

 

In Case of First Impression PA Superior Court Rules That A Parent Cannot Waive Child's Right To Jury Trial

In the case of Santiago v. Philly Trampoline Park, LLC, No. 2615 EDA 2021 (Pa. Super. March 21, 2023 Bowes, J., King, J., and Pellegrini, J.) (Op. by Bowes, J.), the Superior Court addressed an issue of first impression in Pennsylvania in these consolidated appeals, that being whether a parent’s role as natural guardian entitles the parent to bind a minor child to an arbitration agreement and waive that child’s right to seek redress for injuries in a court of law.  

In the consolidated appeal, the Superior Court also addressed whether one spouse's signature on an waiver form could bind the other spouse to be limited to only pursuing a recovery at arbitration.

The appellate court affirmed the lower court rulings that answered this question in the negative and concluded that the claims presented were indeed permitted to head to a jury trial as opposed to arbitration.

Overall, the Pennsylvania Superior Court, after reviewing the law of agency and contract law, concluded that the trial courts had properly ruled that no agreements at issue served to bind the children or the non-signing spouses to resolve their negligence claims in arbitration rather than by way of a personal injury lawsuit in the courts.

More specifically, the Pennsylvania Superior Court agreed with the trial court findings that the trampoline facility had failed to meet its burden to show that the signatory spouses were the agents of the non-signing spouses.

The court additionally held that the parent-child relationship did not empower the signatory parents to waive their minor children’s rights to have their claims resolved in a personal injury lawsuit in a court of law as opposed to arbitration.

As such, the lower court's Orders were affirmed.

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


Source: “Pennsylvania Civil Law Case Alerts,” Fastcase.com as provided by Pennsylvania Bar Association.

Source of image:  Photo by Ben Moses on www.unsplash.com.

Court Rejects Trucking Defendant's Argument That All Claimants Have to Be Joined As Indispensable Parties Due To Limited Funds To Pay All Awards

In the case of Krakowiecki v. Walker, No. 2:22-CV-00518 (W.D. Pa. Feb. 1, 2023 Cercone, S.J.), the Western Federal District Court case addressed a tractor trailer Defendant company’s Motion to Dismiss a Plaintiff’s motor vehicle accident litigation arising out of a multi-vehicle accident on a highway. The Defendant filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(7) and Rule 19 due to the Plaintiff’s alleged failure to join an indispensable party.

In support of its argument, the Defendant argued that, in addition to this litigation, other drivers and/or insurance companies have brought multiple claims against the same tractor trailer Defendant in other lawsuits such that the available funds possessed by the Defendant to satisfy all of the Claimants’ were limited. 

The tractor trailer Defendant argued that adjudicating this particular matter without all such Claimants joined in the same case would impair or impede or otherwise prejudice the ability of the absent parties to protect their interests. The Defendants also asserted that proceeding without the other Claimants being joined into this case would risk multiple, inconsistent duties to pay by the Defendant.

In denying the Defendant’s Motion to Dismiss, the federal court reviewed Rule 19 which covers whether an absent party should be joined to existing litigation.

The court ruled that the Defendant’s claim of potential multiple exposures generated by the different claims and/or the Defendant’s potential inability to satisfy all of the resulting liabilities through the available insurance fails to raise concerns that fall within the scope of Rule 19.

The court also noted that, under the analysis required by Rule 19, there is nothing about the claims of the other alleged Claimants that impairs or impedes the ability to adjudicate the claims or defenses of the Plaintiff and the Defendant identified in this particular lawsuit.

The court went on to the note that the holding that a joinder is compulsory under Rule 19(a) is a necessary predicate to a district court’s discretionary determination under Rule 19(b) that the case must be dismissed because the joinder of the party is not feasible and the party is indispensable to the just resolution of the case.

Here, the court found that the tractor trailer Defendants had not established that any of the other Claimants is a required or necessary party to this particular lawsuit. As a result, none of the other Claimants were found to be an indispensable party. 

Accordingly, the court found no reason to grant the Defendant’s Motion to Dismiss. As such, the motion was denied.

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

I send thanks to Attorney Dale G. Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP for bringing this case to my attention.

Judge Brann Review Rules of Evidence Regarding Admissibility of Evidence and Expert Testimony in a Trucking Accident Matter

In the case of Cleveland Brothers Equip. Co. v. Vorobey, No. 4:19-CV-01708 (M.D. Pa. Feb. 10, 2023 Brann, J.), the court addressed numerous pre-trial Motions in Limine in a contribution action arising out of a trucking accident.

In ruling on the various pre-trial Motions in Limine at issue, Judge Brann provided a detailed recitation as to the current law regarding the general the admissibility of certain evidence at trial.

With regards to one of the issues raised in this case, in which Cleveland Brothers was seeking contribution against a Co-Defendant relative to a Cleveland Brothers’ payment of a settlement in an underlying personal injury matter, the court ruled that evidence regarding a Defendant’s lack of participation in a Mediation that led to the settlement of the underlying action would be excluded as irrelevant to the negligence issues presented in this contribution case. 

The court reasoned that whether and why a party did or did not participate in an underlying legal proceeding had no bearing on whether that party owed a duty of law or breached that duty relative to the underlying motor vehicle accident. The court also noted that the reference to any litigation strategy by the parties in the underlying case was inadmissible as it would likely confuse and distract the jury in this subsequent contribution action.

Chief Judge Matthew W. Brann
M.D. Pa.

In this decision, the court also addressed issues regarding the qualifications and competency of a defense accident reconstruction expert to testify with regards to certain issues relevant to the accident. In his Opinion, Judge Brann set out the applicable law as to the admissibility of an expert witness as an expert in detail.  After reviewing that law, Judge Brann limited the Defendant's accident reconstruction expert’s testimony in certain respects.

The court also addressed whether or to the Defendant in this contribution action could attempt to introduce evidence that the settlement of the underlying personal injury case was allegedly influenced upwards by the fact that punitive damages claims were pled.

Judge Brann found that the Defendant in this contribution case had not developed any factual basis to support a claim that the punitive damages pled in the underlying case did serve to influence the settlement for which Cleveland Brothers was seeking a contribution in this matter.

The court also noted that an affirmative defense, such as the one at issue regarding the punitive damages issue, raised by a Defendant can be dismissed prior to trial for lack of proof. The court found that the Defendant’s proof in this regard was woefully insufficient and, as such, the Defendant was precluded from referencing at the trial of the contribution claims the fact that punitive damages may have been at issue in the underlying personal injury matter.

Relative to the actions of the Defendant truck driver, Judge Brann noted that, since the negligence of that driver was conceded, evidence of that driver’s conviction for traffic violations would be precluded as being more prejudicial then probative under an application of the Federal Rules of Evidence.

Judge Brann also addressed whether or not Cleveland Brothers could proceed with affidavits and/or testimony from the Plaintiff’s attorneys for the original Plaintiffs in the underlying litigation in the effort by Cleveland Brothers to establish that the damages paid in the underlying settlement were reasonable and necessary. 

The court analogized this evidence as being similar to office notes or reports by treating physicians. Judge Brann stated that, in the same way that treating physicians need not submit expert reports concerning their treatment in order to testify at trial, the attorneys for the original Plaintiffs in this same litigation would be permitted to testify as to the fairness of settlement without submitting expert reports under F.R.C.P. 26.

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 in Philadelphia for summarizing this case in his monthly newsletter.  For full disclosure purposes, I note that I represented an Additional Defendant in this case.

Defense Verdict Upheld In Left Turn Motor Vehicle Accident Case (Non-Precedential)

In the case of Wilmer v. Bethman, No. 654 EDA 2022 (Pa. Super. Feb. 21, 2023 Panella, P.J., Bender, P.J.E., and Sullivan, J.) (Op. by Sullivan, J.) (non-precedential), the Pennsylvania Superior Court addressed a Plaintiff’s request a new trial after the jury entered a defense verdict in a case where the Defendant made a left hand turn across the path of the Plaintiff’s vehicle during the course of a motor vehicle accident.

In this decision, the court provided a detailed recitation as to the law applicable in left turn motor vehicle accident cases.

The court also ruled that the trial court did not err when it denied the Plaintiff’s Motion for Judgment Notwithstanding the Verdict and/or when it denied the Plaintiff’s request for a new trial where the Plaintiff did not present evidence as to what the distance was between the two vehicles when the Defendant commenced the left hand turn. 

As such, the Superior Court agreed that the trial evidence was sufficient to permit the jury to conclude that the Defendant acted reasonably and waited until she thought it was safe to proceed and was, therefore, not negligent.

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

Source: “Fastcase Pennsylvania Civil Law Case Alerts Provided Through the Pennsylvania Bar Association” (Feb. 23, 2023).

Source of image:  Photo by Krzysztof Hepner on www.unsplash.com.

Judge Mannion of Federal Middle District Addresses Motion for Summary Judgment in a Skiing Accident Case

In the case of Mattei v. Tuthill Corp., No. 3:19-CV-2196 (M.D. Pa. Feb. 28, 2023 Mannion, J.), the court denied a Defendant’s Motion for Summary Judgment in a case arising out of a skiing accident. 

As noted by Judge Malachy E. Mannion at the outset of his Opinion, this case raised questions as to the inherent risks of downhill skiing, the enforceability of releases on lift tickets, and the legal sufficiency of the facts alleged by the Plaintiff relative to the Defendant's alleged gross negligence and recklessness.

The court reviewed the terms of the Pennsylvania Skier's Responsibility Act and ruled that the “no duty” rule relieving ski resorts of liability under the Act for common and inherent risk attendant with skiing was in dispute in this matter because it was unclear as to whether the Plaintiff was skiing on or off a designated trail at the Blue Mountain Resort in the Poconos.  

Judge Malachy E. Mannion additionally noted that there was other conflicting evidence as to whether the hazard at issue was perceptible to skiers.

The court found that whether a certain danger is perceptible to skiers is generally relevant to the question of whether that risk is inherent to downhill skiing.

The court additionally found that the Defendant had not proven that the Plaintiff’s negligence claims were barred by the exculpatory release contained on the back of the lift ticket.

Judge Mannion noted that, in this case, the lift ticket was an exemplar. There was no other proof offered beyond a disputed inference that the Plaintiff actually received a lift ticket.

Given that the court also found that there were genuine issues of material fact relative to the Defendant’s alleged gross negligence and reckless involving an alleged conscious disregard of the risk of harm allegedly posed by an alleged five foot ditch on the ski trail, summary judgment was denied.

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

Source of image:  Photo by Mati Mango on www.pexels.com.

Judge Nealon of Lackawanna County Addresses Whether Summary Judgment is Appropriate Sanction for Alleged Spoliation

In the case of McClafferty v. Scranton Electric Heating, No. 2019-CIVIL-2216 (C.P. Lacka. Co. Aug. 5, 2023 Nealon, J.), the court addressed issues with regards to the alleged spoliation of evidence.

A carpenter instituted this personal injury action against a subcontractor after he was burned in a fire caused by a gas tank provided by the subcontractor at the work site, and the subcontractor joined the gas tank supplier as an Additional Defendant. 

The gas tank supplier filed a Motion for Summary Judgment seeking to dismiss the joinder action based upon the subcontractor’s alleged spoliation of evidence in failing to preserve the subject gas tank.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon confirmed that, in determining whether a sanction is warranted for the spoliation of evidence, the court shoulder 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 defer future similar conduct. 

The court noted that the first prong, which addresses the fault of the spoliating party, requires consideration of the offending party’s duty or responsibility to preserve the relevant evidence or lack of any such duty. 

Judge Nealon also noted that the destruction of potentially relevant evidence determines whether and what type of sanction should be imposed, not whether spoliation occurred.

Since the subcontractor’s vice-president testified that it was “more than likely” that the gas tank “was returned” to the supplier after the fire, genuine issues of material fact existed as to whether the subcontractor could be characterized as the spoliator of the gas tank. 

The court noted that the entry of summary judgment is the most extreme sanction for spoliation, and, at a minimum, requires proof that the party actually altered or destroyed the evidence, or authorized or directed its destruction or alteration. 

Judge Nealon ultimately ruled that, although the presiding trial judge would later determine whether an adverse inference instruction under Pa. SSJI (Civ) §5.60 (5th Ed.) is warranted under the circumstances presented, at this stage of the matter, the entry of summary judgment as a spoliation sanction was found to be inappropriate by the court.

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

Plaintiff's Personal Injury Claim Dismissed After Plaintiff Presented False Documents and False Testimony To the Court

In the case Brown v. Kimsey, No. 2:22-CV-03441-MAK (E.D. Pa. Feb. 10, 2023 Kearney, J.), the court relied upon the applicable factors identified in the case of Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984), to dismiss an automobile accident personal injury case being pursued by a Plaintiff who was originally represented but who then became a pro se Plaintiff after the attorney withdrew. The case was dismissed based upon the court’s finding that the Plaintiff had presented altered documents and had a friend falsely claim that she was the Plaintiff’s wife in an effort to secure a recovery on a loss of consortium claim.

Judge Kearney started off his Opinion by stating, “Truth-seeking in our adversary system of resolving disputes depends on zealous advocacy of grounded legal arguments based on facts. Facts are facts; they are not theories or hopes. Misrepresentation of facts are not permitted in court. Parties and their lawyers who present knowing false facts to the court cannot recover in the public’s courthouse.”  See Op. at 1.

As part of the support for the dismissal of the claim, the court noted that the Plaintiff sat by during depositions while his female friend lied under oath that she was the Plaintiff’s wife. That friend then repeatedly invoked her Fifth Amendment right against self-incrimination when she realized that the opposing party had uncovered her lies.  Thereafter, the friend, who purported to be the Plaintiff’s wife, quickly dropped her false of loss of consortium claim when the opposing party would not pay her based upon those misrepresentations.

In the end, based upon this evidence, and other evidence, the court dismissed the case after finding that the pro se Plaintiff had committed a fraud upon the court.

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


I send thanks to Attorney Thomas Butler of the Flourtown, PA office of Butler Law for bringing this case to my attention.

Source of image:  Phot by Brett Jordan on www.pexels.com.

Northumberland Court of Common Pleas Judges Cites to Spencer v. Johnson Dicta on Fair Share Act as Not Dicta

Definition of Dicta:

"A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential."

Black's Law Dictionary 1177 (9th ed. 2009).

In the case of Tucchi v. Carroll, No. CV-2018-1794 (C.P. Northumb. Co. Jan. 24, 2023 Saylor, S.J.), a trial court judge addressed a Defendant's post-trial motions following the entry of a jury verdict in favor of the Plaintiff against three (3) Defendants in a personal injury civil litigation matter.

In this case, the moving Defendant argued that the verdict against all three (3) Defendants for the total amount awarded should be stricken under the Fair Share Act.  This position was opposed by the Plaintiff.

In an Order only, Senior Judge Charles H. Saylor, sitting in the Northumberland County Court of Common Pleas, ruled that, pursuant to Spencer v. Johnson, 249 A.3d 529, 559 (Pa. Super. 2021), that the Fair Share Act was inapplicable given that the minor Plaintiff in this matter was not found to be contributorily negligent by the Plaintiff or, in other words, was an innocent Plaintiff.

In a footnote in his Order, the judge noted that the Spencer decision “was a precedential holding of the Superior Court after an analysis of the Fair Share Act, and not “dicta” as contended by Defendant Carroll.”

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

I send thanks to Attorney Stephen A. Seach of the Seach Law Offices in Sugarloaf, PA for bringing this case to my attention.

For more cases and articles regarding the Fair Share Act here on Tort Talk, please click HERE.

Defendant's Request to Amend Pleadings to Add Crossclaims on the Eve of Trial Denied

In the case of Reynolds Iron Works, Inc. v. Lundy Constr., Co. Inc., No. 20-00, 730 (C.P. Lyc. Co. Jan. 25, 2023 Carlucci, J.), the court denied a Defendant’s Motion for Leave to file new crossclaims after finding that the Defendant had waited too long to do so in this case, which was already scheduled for trial.

The court noted that, granting the Defendant’s motion would likely leave to prejudice to the other parties under circumstances in which a continuance also might not serve to remedy that prejudice.

This matte arose out of a civil litigation involving a contractor dispute regarding the money allegedly owed on a subcontract.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 28, 2023).

ARTICLE: The COVID-19 Pandemic and Its Impact on the Law

 

Here is a LINK to my article published in the Pennsylvania Bar Association's March/April 2023 issue of The Pennsylvania Lawyer entitled "The COVID-19 Pandemic and Its Impact on the Law."

The article outlines the changes in Pennsylvania law and litigation as a result of the pandemic, some of which changes appear to be here to stay.

I send thanks to Patricia Graybill, the Editor of The Pennsylvania Lawyer magazine for selecting this article for publication.

Court Addresses Motion To Dismiss Section 1983 Prison Case Regarding Medical Care Issues

In the case of Cyr v. Schuylkill County, No. 3:22-CV-00453 (M.D. Pa. Jan. 30, 2023 Saporito, M.J.), the court denied the Defendant nurse's and prison medical care company’s Motion to Dismiss a claim for an alleged §1983 denial of medical care and failure to intervene action after the Plaintiff's son died in prison of an alleged drug overdose.

The court found that the Plaintiff had adequately pled a denial of medical care and a failure to intervene in the Complaint. The court found that the allegations sufficiently pled a plausible claim against the medical company.

More specifically, after reviewing the Complaint, the court noted that the Plaintiff asserted in the Complaint that the son’s serious medical need was “so obvious” that a layperson could recognize it.

Magistrate Judge Joseph F. Saporito, Jr.
M.D. Pa.

The court additionally found that the Complaint sufficiently alleged deliberate indifference to substantiate a denial of medical care claim.

Judge Saporito also pointed to the fact that the Plaintiff had identified several policies, customs, or practices that the nurses and medical company allegedly violated which allegedly caused the deprivation of the son’s constitutional rights. Those alleged policies included alleged insufficient staffing, failing to train employees on diagnosing intoxicated or overdosing inmates, and not monitoring inmates in need or emergency care.

The court additionally found that the Plaintiff plausibly pled a failure to intervene claim.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 14, 2023).

Bad Faith Claim in UIM Case Dismissed Due To Conclusory Allegations

In the case of Houston v. Geico, No. 1:22-CV-00035-SPB (W.D. Pa. Jan. 27, 2023 Baxter, J.), the court granted a Defendant insurance company’s Motion to Dismiss a Plaintiff’s bad faith claim in a UIM case after finding that the Plaintiff had merely recited conclusory allegations that were insufficient to state a cognizable claim for bad faith.

According to the Opinion, the court had previously dismissed the same count and provided the Plaintiff with a right to file an Amended Complaint.

With this ruling again dismissing the Plaintiff’s bad faith count, no additional right to amend was granted.

According to the Opinion, in an effort to correct the issues with his bad faith claim, the Plaintiff added an allegation that the Defendant carrier had failed to effectively communicate with the Plaintiff during the course of the claim.

The court ruled that the cases that survive a Motion to Dismiss based upon a failure to communicate allegations of repeated attempt to elicit a response from the carrier, which was not found in the Complaint at issue in this case.

As such, the court dismissed the bad faith claim.

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

I send thanks to Attorney Joseph Hudock from the law firm of Summers, McDonnell, Hudock, Guthrie and Rauch for bringing this case to my attention.

Pennsylvania Superior Court Reviews Scope of Statutory Employer Status for General Contractors

In the case of Yoder v. McCarthy Construction, Inc., No. 1605 EDA 2021 (Pa. Super. Jan. 31, 2023 Bender, P.J.E., Panella, P.J., Sullivan, J.) (Op. by Bender, P.J.E.), the court addressed issues of whether or not a Defendant was a worker’s compensation statutory employer and, therefore, immune from any tort liability asserted by the Plaintiff, who was an employee of a subcontractor.

According to the Opinion, the jury in the underlying matter had entered a verdict for over $5.5 million dollars against the Defendant on the personal injury claims presented.

In reviewing the Worker's Compensation Law, 77 Pa.C.S.A. Section 462, the Superior Court noted that general contractors take on secondary liability for the payment of worker's compensation for the employees of any subcontractors.  In the event a subcontractor defaults on securing worker's compensation coverage, then the coverage purchased by the general contractor would apply.  In this regard, the general contractor is considered under the law to be a statutory employer of the subcontractor's employee.

In exchange for this secondary liability taken on by a general contractor under the law, the general contractor is granted immunity from any tort liability arising out of the same incident.   

The court found that, given that the Plaintiff had received worker’s compensation benefits, the Plaintiff was judicially estopped from denying his employee status. The court noted that the record confirmed that the Plaintiff was an employee of the subcontractor at issue, and not an independent contractor.

As such, the Pennsylvania Superior Court ruled that a statutory employer status is not limited to general contractors at a job site.

The court additionally noted that worker’s compensation immunity, including with respect to the issue of whether or not a Defendant is a statutory employer, is a jurisdictional issue that cannot be waived. 

The court additionally noted that whether a Defendant is a statutory employer is a question of law for the court, not a question of fact for the jury.

In the end, the Superior Court found that the Defendant was a statutory employer and was therefore immune form any liability.

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 in Philadelphia for bringing this case to my attention.

Post-Koken Scorecard and Facebook Discovery Scorecard Updated on Tort Talk

 

The Post-Koken Scorecard and the Facebook Discovery Scorecard on Tort Talk have been updated.

To view the Scorecards, please go to www.TortTalk.com and scroll down the right hand column and click on the date noted under the title to the Scorecards.

If you are willing, please forward to my attention a copy of any new judicial Opinions and/or Orders regarding any Post-Koken litigation issues or Facebook/Social Media Discovery issues you may come across for inclusion in the Scorecard.  

Thank you.

Summary Judgment Denied In Case of Passing Motorist Injured By Low Hanging Tree

In the case of Cox v. Cemex, Inc., No. 10132 of 2020, C.A. (C.P. Lawr. Co. Dec. 19, 2022 Motto, P.J.), the court denied the Defendant’s Motion for Summary Judgment in a case in which a Plaintiff, who was a passenger in a vehicle at the time of this accident, was struck in the abdomen by a tree as the vehicle drove by the Defendant's property.  It was alleged that the tree at issue was located on the Defendant’s property and was allegedly protruding over the roadway.

There was evidence in the case that, during the course of the accident, the vehicle in which the Plaintiff was located in was traveling on a curve in the road and that vehicle was allegedly forced to swerve over towards a berm due to an oncoming vehicle.

In addressing the Motion for Summary Judgment at issue, the court held that, while liability can be imposed upon a landowner and a municipality where an object obstructs a roadway and causes injury, in this case, there were genuine issues of material facts regarding whether the tree that injured the Plaintiff was indeed protruding over the roadway from the landowner’s property at the time of the accident. As such, the Defendants’ 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 (Feb. 7, 2023).

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

Court Declines to Lift Stay in Civil Matter Due to Pending Criminal Case

In the case of Piazza v. Young, No. 4:19-CV-00180 (M.D. Pa. Feb. 14, 2023 Brann, C.J.), the court denied a Plaintiff’s Motion to Lift an Existing Discovery Stay Order in a case in which certain Defendants had secured a stay of any discovery due to a pending parallel criminal action.

In reviewing the Motion, the court addressed the following factors:

1. The extent to which the issues in the civil and criminal cases overlapped;

2. The status of the criminal proceedings, including whether any Defendants have been
indicted;

3. The Plaintiff’s interests in expeditious civil proceedings weighed alongside the prejudice
to the Plaintiff caused by the delay;

4. The burden on the Defendants;

5. The interest of the court; and,

6. The public interests

In reviewing these factors, the court noted that the civil and criminal cases were identical in this matter arising out of an alleged fraternity hazing claims. The court also noted that the civil court would not penalize the Plaintiffs for any delays that may be caused by the criminal proceedings. For example, the court indicated that discovery deadlines could be extended if the criminal proceedings were not resolved by the time the deadlines expired.

The court additionally noted that the Defendants indicated that, should discovery be allowed to proceed, the Defendants would likely assert their Fifth Amendment rights against self-incrimination, which could lead to further discovery disputes.

The court also noted that, given the overlap between the civil case and the ongoing criminal actions, requiring the Defendants to proceed with discovery in the civil case and sit for depositions would create a real risk of undue prejudice for the Defendants.

Based upon an application of the factors to the case presented, the court denied the Motion to Lift the Stay.

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

Superior Court Affirms That Statute of Limitations Defense Can Be Reviewed Under Preliminary Objections (PO's) Where No PO's Filed to PO's (Non-Precedential)

In the case of Weisberg v. Bansley, No. 695 MDA 2021 (Pa. Super. Feb. 14, 2023 Bowes, J., King, J., and Stevens, P.J.E.) (Op. by King, J.) (non-precedential), the Pennsylvania Superior Court affirmed a ruling by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in which the trial court sustained Preliminary Objections filed by various Defendants that resulted in the dismissal of the Plaintiff’s Dragonetti Act claims in a dispute between parties over an alleged claims of wrongful use of civil procedures that arose out an earlier legal malpractice suit.

In this case, relative to the statute of limitations defense raised by the Defendants’ Preliminary Objections, the court noted that, generally, a statute of limitations defense is more properly raised as a new matter and not Preliminary Objections. 

However, the Court confirmed that where a Plaintiff fails to file Preliminary Objections to strike a Preliminary Objection based upon a statue of limitations, the trial court may address the issues presented relative to a statute of limitations defense. As such, the Superior Court found that the trial court did not err when it addressed the merits of the statute of limitations issues presented in this case.

The Superior Court also found that the trial court’s calculation of time relative to the statute of limitations defense was also proper.


Anyone wishing to review this non-precedential Opinion from the Pennsylvania Superior Court may click this LINK.

Although Noted To Be "Absurd," the "Dicta" of Spencer v. Johnson Regarding the Fair Share Act Applied in a Monroe County Case

In the case of Ace v. Ace, No. 6242-CIVIL-2020 (C.P. Monroe Co. Jan. 12, 2023 Williamson, J.), the court issued an Opinion in a non-jury trial arising out of a shooting incident and following the entry of default judgments against Defendants who did not appear for the trial.  

Of note, the Court addressed the import of the dicta in the Spencer v. Johnson decision relative to the applicability of the Fair Share Act in a case in which no liability is assessed to a Plaintiff.  Although Judge Williamson noted that the "dicta" in the Spencer v. Johnson contained reasoning that seemed "absurd," he apparently felt compelled to apply it to this case.

By way of background, the court noted that default judgments had been previously entered against the Defendants and that neither Defendant appeared at the time of the non-jury trial at which the only issue was the issue of damages.

The court found that the evidence presented confirmed that the Plaintiff had met his burden of proof with regards to causation and damages. As such, the Court in this non-jury trial found it necessary to apportion liability between the two Defendants for the Plaintiff’s injuries.

Liability was apportioned by the Court to both Defendants.  No percentage of liability was assessed to the Plaintiff. 

Judge David J. Williamson
Monroe County CCP

Judge Williamson then noted that "[t]here has been a lot of confusion recently as to whether or not defendants are subject to joint and several liability for a judgment, regardless of their proportionate share of liability.  See Op. at p. 8.

In making this decision, the Court addressed the history of the Comparative Negligence Act and the Fair Share Act.

Judge Williamson noted that, when passed in 2011, the Fair Share Act was thereafter interpreted by many courts as abolishing joint and several liability in most negligence cases such that defendants would only be responsible for their percentage of negligence assessed by the jury except in those instances where the exceptions under the Act were applicable.

The court noted that, with respect to this case, the exceptions which are found at 42 Pa.C.S.A. Section 7102(a.1)(3) applied to one of the defendants in this case relative to that one defendant being found to have engaged in an intentional act and by the fact that that same defendant had been found to be more than 60% liable.

The Court noted, however, that the other Defendant did not fall under any of the exceptions.

Judge Williamson noted that whether subsection (a.1) of the Fair Share Act applied to this case "is now very much in doubt."  See Op. at p. 11.

The Court noted, "The statute heading at 42 Pa.C.S.A. Section 7102 is "Comparative negligence."  This is the legal principal (sic) covering when a plaintiff is at fault in some percentage for their own injuries, together with a defendant or defendants.  The Fair Share Act as enacted addresses the situation of a plaintiff who is contributorily negligent at subsection (a), titled as "General rule."  Subsection (a.1) addresses recovery against multiple defendants and is titled "Recovery against joint defendants; contribution."  Subsection (a.1) makes no mention of a plaintiff's contributory negligence."  See Op. at p. 11.

In this regard, Judge Williamson wrote “The legislative intent, in light of an enactment of the Fair Share Act, appears to re-affirm the general rule regarding the contributory negligence of a Plaintiff, and to add provisions regarding the responsibility for an award as to multiple Defendants. It would seem that subsection (a.1) would apply in all cases, including those where a Plaintiff has some level of fault, or no level of fault at all. Otherwise, it would seem likely that the language of subsection (a.1) would have referenced a contributorily negligent Plaintiff if that subsection only applied in instances of comparative negligence attributed to a Plaintiff. To say the legislature enacted a statute to address what was perceived as an unfair result to a big-pocket Defendant following finding of minimal fault against them for injuries caused by multiple Defendants only in cases where Plaintiff is also contributorily negligent, seems like an absurd result. It makes more sense that the legislature would have enacted this measure in all cases of multiple Defendants, even where the Plaintiff has no contributory negligence.”

That being said, Judge Williamson went on to review the contrary result noted in the dicta put forth by the Pennsylvania Superior Court in its Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021) decision. Judge Williamson noted that the Superior Court in Johnson analyzed the Fair Share Act and concluded that the legislature only intended for the joint and several provisions of subsection (a.1) to apply in cases where a Plaintiff is also found to have been contributorily negligent. Judge Williamson stated that the Superior Court in Spencer reasoned that, in all other cases, joint and several liability applied regardless of the percentage of fault of each Defendant.

In his decision, Judge Williamson noted that the rationale of the Spencer court regarding Fair Share Act “appears as dicta in the Superior Court’s decision, as it was not the direct holding” of the Superior Court.

Judge Williamson also noted that the Spencer decision “was also a panel decision, and not one made by the entire court sitting en banc.” See Op. at 13.

Judge Williamson also noted that the ruling in Spencer was not appealed to the Pennsylvania Supreme Court.

Based upon Judge Williamson’s review of the Spencer decision, he noted his belief that the Superior Court “would rule that joint and several liability applies to all Defendants without limitations of the Fair Share Act, unless the Plaintiff has some amount of contributory negligence assessed against him or her.” Id.  

Despite noting earlier in his decision that the reasoning as contained in the Spencer decision was "absurd," Judge Williamson, apparently feeling compelled to do so, stated that he would “adhere to the dicta stated in Spencer in this particular case, and find joint and several liability without the application of the Fair Share Act as between both Defendants” given that there was no finding of contributory negligence against the Plaintiff in this case.  

In other words, given that there was no contributory negligence assessed against the Plaintiff in this matter, the Fair Share Act was found not to apply, and the Plaintiff was free to collect the entire verdict from either Defendant even though one Defendant had been assessed with 70% liability and the other Defendant was hit with 30% of the liability.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 21, 2023).