Superior Court Upholds Admission of Evidence of Plaintiff's Consumption of Alcohol in Pedestrian Accident Case

In the case of Moffitt v. Miller, No. 8 EDA 2023 (Pa. Super. Sept. 18, 2023, Pelligrini, J., Bowes, J., and Stabile, J.) (Op. by Pelligrini, J.), the Pennsylvania Superior Court affirmed a lower court’s denial of Plaintiff’s post-trial motions in a case involving a pedestrian Plaintiff who was struck by a motor vehicle.

The court found that the low verdict and the 50/50 negligence apportionment by the jury were not against the weight of the evidence.

One of the issues that the Plaintiff challenged was the admission of testimony regarding the Plaintiff's consumption of alcohol before the accident.  The appellate court found that evidence of the Plaintiff pedestrian’s high blood alcohol level at the time of the accident was properly admitted by the court below. 

The Superior Court noted that the evidence was supported by competent expert testimony that the Plaintiff’s judgement would be impaired. Additionally, there was witness testimony that the Plaintiff smelled of alcohol at or around the time of the incident. The court noted that the exclusion of this evidence would have deprived the jury of relevant evidence to consider in its decision.

The court also found that the Defendant’s alcohol expert was competent to testify based upon the expert’s several decades of experience of treating alcoholics.

In another notable ruling, the Superior court ruled that evidence established that the Plaintiff had attempted to cross the street in a mid-block area and outside of any crosswalk. As such, the court found that the Plaintiff's requested “unmarked crosswalk” instruction was properly denied.

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

Carrier Prevails With Court's Dismissal of COVID-19 Business Interruption Claim

In the case of Brandywine Valley Premier Hospitality Group v. Fireman’s Fund Ins. Co., No. 2:22-CV-02221-GEKP (E.D. Pa. Aug. 7, 2023 Pratter, J.), the court ruled that a hotel/restaurant owner was not entitled to property insurance coverage where coverage was predicated on direct physical damage or loss and where the shutdowns required by the COVID-19 pandemic did not amount to any physical damage or loss to the property.

As such, the court granted an insurance company’s Motion to Dismiss

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. 14, 2023).

Pennsylvania's Consent to Jurisdiction By Registering To Do Business In Pennsylvania Valid, But Subject To Continuing Attacks

Tort Talkers may recall the case of Mallory v. Norfolk Southern Railway in which the United States Supreme Court addressed the validity of Pennsylvania's consent by registration statute.  Under that statute, corporations and companies that register to do business in Pennsylvania thereby consent to subject themselves to jurisdiction in Pennsylvania state courts for lawsuits, even if the underlying accident occurred elsewhere.

A majority of U.S. justices upheld the validity of the statute, determining that it does not violate due process violations, and remanded the case back to Pennsylvania.  Yet, commentators note that the language of a Concurring Opinion by Justice Alito may spur Defendants to continue to attack the statute.

Under a recent Order, the Pennsylvania Supreme Court punted and remanded the issue all the way back down to the trial court for consideration, thereby rejecting the Defendants' attempt at a fast-tracked review by the Commonwealth's highest Court on continuing challenges to the question of whether or not Pennsylvania's consent by registration statute violates the U.S. Constitution.

Anyone wishing to review the Pennsylvania Supreme Court's Order in this regard may click this LINK.

Presently, the statute providing that a corporation's registration to do business in Pennsylvania thereby subjects that corporation to Pennsylvania state court jurisdiction over personal injury lawsuits remains valid but subject to continuing attacks.

Source of image:  Photo by Jackie Hope on www.unsplash.com.

Federal Court Finds Spoliation of Video Surveillance of Slip and Fall in Store

In the case of Heagy v. Burlington Stores, Inc., No. 2:20-CV-02447-CMR (E.D. Pa. Sept. 6, 2023 Rufe, J.), the court denied a motion against a Defendant store that was based, in part, on the Defendant store’s alleged spoliation of video surveillance evidence regarding the subject slip and fall incident.

According to the Opinion, on the day of the incident, a cleaning crew was cleaning the floors earlier that morning, as a result of which there was a wet mat near the entrance area.

About ten (10) minutes before the Plaintiff entered the store, the store employee nearly slipped and fell in the area. The Plaintiff then entered the store and slipped and fell on the tile floor after stepping from the mat, which the parties agreed was soaking wet.

Thereafter, the Plaintiff contacted a lawyer and, two (2) weeks after the fall, that attorney sent Burlington a letter confirming his representation of the Plaintiff and requesting the preservation of security/surveillance video of the incident. The Plaintiff’s attorney requested that the entire unedited video be preserved as recorded for a period of twenty-four (24) hours before and twenty-four (24) hours after the subject incident.

A few days thereafter, the adjuster for Burlington’s third party administrator contacted Plaintiffs’ counsel and stated that the store cannot produce forty-eight (48) hours of footage, but that the footage would be preserved.

According to the Opinion, two (2) days before that communication, the adjuster had submitted a request to Burlington to save video from thirty (30) minutes before the incident to thirty (30) minutes after the incident.

Ultimately, Burlington’s loss prevention associate preserved the footage only of the customer, which amounted to three (3) minutes prior to the fall and seventeen (17) minutes after the fall.

In this regard, the court was addressing a Motion for Summary Judgment by Burlington relative to the Plaintiff’s punitive damages claims along with Motion for Summary Judgment by the subcontractor Defendants who argued that Burlington’s negligence was an intervening and superseding cause of the Plaintiff’s fall and that Burlington’s spoliation of evidence warranty summary judgment in favor of the subcontractor Defendants.

The court denied all motions so that the issues could be addressed later in terms of what spoliation sanctions were warranted.

The court found that Burlington’s action of only preserving only a very limited amount of the video evidence constituted spoliation as there was no basis to conclude that Burlington’s failure to preserve the pertinent video evidence was the result of any inadvertence, routine practice, or accident. The court noted that the evidence in the record demonstrated that Burlington spoliated the pertinent video evidence for the purpose of undermining the integrity of the litigation and that Burlington could not now benefit from its own misconduct.

The court found that the Burlington spoliation did not require a dismissal of the claims against the subcontractor. The court also noted that the finding of the entitlement to a spoliation adverse inference or an award of litigation expenses was premature at the present juncture of the case. Accordingly, all arguments regarding spoliation sanctions were denied without prejudice. The court granted the party’s leave to file appropriate Motions for Sanctions.

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


Source: Article - “Major Slip-Up: Pa. Judge Rules Burlington Destroyed Relevant Evidence in Slip-and-Fall Suit, But Holds Off on Sanctions,” By: Riley Brennan of the Pennsylvania Law Weekly (Sept. 8, 2023).

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Summary Judgment Denied in Slip and Fall Case After Plaintiff Produced Expert Report Asserting that Floor Mat Was Dangerous

In the case of Perry v. Sam’s East, Inc., No. 1:21-CV-00301-SPB (W.D. Pa. Aug. 17, 2022 Baxter, J.), the court denied a Defendant store’s Motion for Summary Judgment in a slip and fall case after finding that genuine issues of material fact existed regarding whether the danger was known and obvious to the Plaintiff,  The court found that this question remained to be decided by the jury.

In this case, the Plaintiff alleged that the store was negligent for not having a slip resistant mat on the floor in a pedestrian walkway. The Plaintiff produced expert evidence in support of the claims presented.

The Plaintiff’s expert concluded that the Plaintiff fell as a result of an allegedly dangerous unsecured, loose mat in a foreseeable pedestrian walkway.

The court found that there is genuine issues of material fact to be decided by the jury. As such, the Motion for Summary Judgment is denied.

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

Source: Article - “Court Rejects Sam’s Club’s Motion to Nix Slip-and-Fall Case, Citing Questions of Whether Danger was ‘Known and Obvious,” By Riley Brennan of the Pennsylvania Law Weekly (Aug. 21, 2023).

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Third Circuit Allows Case To Proceed On College Tuition Refunds Due To COVID-19 Required Virtual Clasess

In the case of Hickey v. University of Pittsburgh, No. 21-2016 (3d. Cir. Aug. 11, 2023), the Third Circuit Court of Appeals held that a district court erred in part in dismissing students’ complaint for a refund of tuition and fees after their university transition to fully remote instruction in response to the COVID-19 pandemic.

The court found that the students have plausibly alleged that they had an implied contract for on-campus schooling in exchange for their tuitions and fees.

The district court Order was affirmed in part and reversed in part and remanded in part.

Anyone wishing to review a copy of this decision may click this LINK.  See the Court's related Order HERE.

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

Jury's Zero Verdict Upheld Even Though Defense Medical Expert Conceded Evidence of Alleged Injury

In the case of Derry v. Blackman, No. 3:21-CV-01744 (M.D. Pa. June 30, 2023 Mehalchick, J.), the court ruled that a jury’s zero verdict in a conceded liability case was not against the weight of the evidence.

In this matter, the Plaintiff filed a motion for a new trial.  The Federal Court addressed the motion under the standards set forth in F.R.C.P. 59.  Federal Magistrate Judge Karoline Mehalchick, who has been nominated to assume a position as a Federal Judge in the Middle District of Pennsylvania, wrote a thoroughly researched Opinion on the current status of Pennsylvania law regarding the validity of zero verdicts handed down by juries in Pennsylvania.

The court emphasized that the record in the case confirm that the existence, severity and alleged cause of the Plaintiff’s alleged injuries were all disputed.

Judge Mehalchick reiterated the rule of law that a jury is free to decide which side’s witnesses are credible.

The court also noted the general rule of law that, even if a jury found that a Plaintiff did actually suffer some pain or discomfort as a result of an accident, the jury could conclude that the injuries were not significant enough to warrant compensation.

In the end, the court found that the jury's verdict did not result in a miscarriage of justice and that the verdict did not cry out to be overturned as shocking the judicial conscience.   

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.

Just Because A Document is in the Cloud Doesn't Make it Accessible in Discovery

In the case of Edenfield v. ECM Energy Services, Inc., No. 999 MDA 2022 (Pa. Super. Aug. 1, 2023 Bowes, J., Lazarus, J., and Stevens, P.J.E.) (Op. by Bowes, J.), the Pennsylvania Superior Court reviewed a notable discovery issue and concluded that, despite the accessibility of electronic records stored by a party on the so-called cloud, state courts cannot order companies to compel documents stored on the cloud unless those companies have a sufficient link to Pennsylvania.

In this Opinion, the Pennsylvania Superior Court was presented with the question of whether electronic records stored in the cloud, without an established physical location in Pennsylvania, were located within Pennsylvania for purposes of Title 15 solely by virtue of being theoretically accessible from Pennsylvania.

In ruling that the documents did not have to be produced, the Pennsylvania Superior Court upheld a decision out of the Lycoming County Court of Common Pleas in which that court had denied a Petition to Compel Inspection of Corporate Books and Records of a Party. 

The Superior Court noted that, to rule otherwise, would permit the courts to compel any business utilizing Quick Books or similar services to have to produce records in Pennsylvania despite the fact that there was no other connection to the Commonwealth of Pennsylvania. The Superior Court stated that such a result was not contemplated by the law at issue.

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


Source: Article: “Despite Accessibility, Storing Corporate Records in the Cloud Does not Create Pa. Jurisdiction, Superior Court Rules.” By: Riley Brennan. Pennsylvania Law Weekly (Aug. 2, 2023).

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Pennsylvania Supreme Court Addresses Issues of Contribution And Indemnity in a Med Mal Case

In the case of McLaughlin v. Nahata, No. 7 WAP 2022 (Pa. July 28, 2023) (Op. by Brobson, J.), the Pennsylvania Supreme Court addressed the issue of whether, as a matter of law, the hospital could seek contribution and/or indemnity from a dialysis clinic for negligence allegedly committed by the doctor employees of the dialysis clinic.

The trial court and the Superior Court had both concluded that, although the judicial principles for contribution and indemnity did not apply cleanly to these particular circumstances, equitable principles of law permitted the hospitals to seek both contribution and indemnity from the dialysis clinic.

In a unanimous decision, the Pennsylvania Supreme Court found that a hospital and a dialysis clinic were determined to be vicariously liable for the negligence of the doctors involved in this matter.  The Court also ruled that Pennsylvania law permitted the hospitals to seek contribution from the dialysis clinic. However, the court was evenly divided on the question as to whether the hospital could also seek indemnification from the dialysis clinic.

Given the decision on contribution and the inability to reach a decision on the indemnity issue, the Superior Court decision was affirmed on those questions.

Anyone wishing to review a copy of this decision may click this LINK and the related Order HERE.

Source: “Justia Daily Opinion Summaries” Pennsylvania Law Weekly (July 29, 2023).

Attempt to Extend Medical Malpractice Liability to a Landlord of a Nursing Home Rejected

In the case of Drake v. Schwartz, No. 2019 - 07345-PL (C.P. Chester Co. Dec. 12, 2022 Binder, J.), an interesting and innovative theory of liability in a medical malpractice case was attempted by a plaintiff but rejected by the court.

In this case, the court granted the Motion for Summary Judgment filed by the Defendant, who was the owner and out-of-possession landlord of a property leased to a nursing home. 

The landowner Defendant had been brought into this nursing home negligence case under a theory that one of the dangerous conditions that caused the patient’s injuries was a condition of severe understaffing at the nursing home that was caused, in part, by financial hardships imposed on the tenant nursing home by its lease agreement with the landlord.

The trial court noted that the issue presented was one of first impression. In its filings, the Plaintiffs acknowledged that they had no authority for extending a landlord’s control over a dangerous condition to a lease that was allegedly unduly economically burdensome to a tenant.

The court declined to create a new avenue for liability against the out-of-possession landlord based solely on a tenant’s invitee alleging that the tenant’s lease was overly costly or burdensome.

As such, the Defendants’ 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 (Aug. 22, 2023).

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Leash That Puppy: Violation of Dog Law Amounts To Negligence Per Se, But Plaintiff Must Still Prove Causation

In the case of Goodell v. Stroble, No. 22-00906 (C.P. Lyc. Co. July 26, 2023 Carlucci, J.), the court granted in part and denied in part a Plaintiff’s Motion for Summary Judgment in a dog bite case.

According to the Opinion, the Defendant dog owner attended an estate sale. The subject incident occurred when the Defendant was putting her purchases in her vehicle and her dog jumped out of the vehicle and allegedly attacked the nearby Plaintiff.

The Plaintiff filed a Motion for Summary Judgment arguing that the Defendant’s failure to restrain her dog on a leash or within the vehicle violated the Dog Law, making the Defendant negligent as a matter of law on a negligence per se basis.

While the court agreed that Pennsylvania law requires owners to control their dogs and that a deliberate violation of the Dog Law does constitute negligence per se, claims of absolute liability as a result can still be defended if a Defendant provides an appropriate defense.

In this regard, the court noted that there still remained the crucial question as to whether or not the dog owner’s negligence was the proximate cause of the Plaintiff’s injuries. The court explained that proximate cause refers to a direct link between a Defendant’s actions and a Plaintiff’s harm.

The court emphasized that the question of proximate cause generally remains a question to be decided by a jury.

As such, the court granted the Plaintiff’s Motion for Summary Judgment in part and denied it in part. More specifically, the court ruled that the Defendant’s conduct in this case was negligent per se under the Dog Law violation. However, the motion was denied in part on the question of proximate causation.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 15, 2023).

Source of image:  Photo by Blue Bird on www.pexels.com.

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Motion for Summary Judgment Based on Spoliation Argument Denied

In the case of Hein v. Master Builders Solution Admixtures U.S., LLC, No. 21-1116 (W.D. Pa. June 22, 2023 Hardy, J.), the court denied a Defendant’s Motion for Summary Judgment based upon a spoliation of evidence argument.

In this case, the court found that the record revealed that the Plaintiff had removed all of the allegedly defective building product from the property and had disposed of that product, except for one (1) bucket of material that was then later lost. All of this occurred before the Plaintiff gave the Defendant notice or opportunity to inspect.

As a result, the Defendant claimed that it was now impossible to determine if the Defendant had manufactured the now missing product.

The court noted that, although two (2) elements of spoliation were established, i.e., control of the evidence and relevance, there was no evidence revealed, to date, to conclusively establish the remaining two (2) factors, i.e., the actual withholding of evidence and the foreseeability that the evidence was discoverable.

According to the court, it was the Plaintiff’s claim that, at the time of the removal and the disposal of the product in question, the Plaintiff was not contemplating the lawsuit. The Plaintiff additionally claimed to have left one (1) bucket of the product with the buyers of the property after notifying the Defendant of the claim. The court noted that what had happened to that last bucket thereafter was not clear.

The court denied the Defendant's Motion for Summary Judgment based upon spoliation but allowed the Defendant to renew its argument after a full record was developed in the case.

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.

Source of image:  Photo by Lucas Van Oort on www.unsplash.com.

Information Not Subject To Discovery in Pennsylvania Simply Because It Is Stored Up In The Cloud

In the case of Edenfield v. ECM Energy Services, Inc., No. 999 MDA 2022 (Pa. Super. Aug. 1, 2023 Bowes, J., Lazarus, J., and Stevens, P.J.E.) (Op. by Bowes, J.), the Pennsylvania Superior Court reviewed a notable discovery issue and concluded that, despite the accessibility of electronic records stored by a party on the so-called Cloud, state courts cannot compel companies to documents stored on the Cloud unless those companies have a sufficient link to Pennsylvania.

In this Opinion, the Pennsylvania Superior Court was presented with the question of whether electronic records stored in the Cloud by a company without any established physical location in Pennsylvania, were located within Pennsylvania for purposes of Title 15 solely by virtue of being theoretically accessible from Pennsylvania.

In ruling that the documents did not have to be produced, the Pennsylvania Superior Court upheld a decision out of the Lycoming County Court of Common Pleas in which that court had denied a Petition to Compel Inspection of Corporate Books and Records of an entity. 

The Superior Court noted that to rule otherwise would, for example, permit the courts to compel any business utilizing Quick Books or similar services to have to produce records in Pennsylvania simply because those records were stored in the Cloud and despite the fact that there was no other connection between that company and the Commonwealth of Pennsylvania. The court stated that such a result was not contemplated by the law at issue.

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

Source: Article: “Despite Accessibility, Storing Corporate Records in the Cloud Does not Create Pa. Jurisdiction, Superior Court Rules.” By: Riley Brennan. Pennsylvania Law Weekly (Aug. 2, 2023).

Company That Charged For Work Event At Which Alcohol Was Served Can't Be Held Liable Under Social Host Liability Theory

In the case of Klar v. Dairy Farmers of America, Inc., No. 29 WAP 2022 (Pa. Aug. 22, 2023 Wecht, J.), the Pennsylvania Supreme Court revisited precedents from over a half of a century that have imposed civil liability arising from the provision of alcohol to visibly intoxicated persons with respect to persons and entities licensed to engage in the commercial sale of alcohol while those precedents have also limited the liability of non-licensees and “social hosts.”

In this matter, Pennsylvania Supreme Court affirmed the decisions of the lower courts that held that an organization which hosted an event at which alcohol was provided, but which organization was not a liquor licensee, could not be held liable for injuries caused by a guest who had become intoxicated at the event and was later involved in a motor vehicle accident.

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

Source: Article - “Company That Charged For Work Event Can’t Be Held Liable for Guest’s Drunken Driving, Says Pa. High Court, By: Riley Brennan of the Pennsylvania Law Weekly (Aug. 24, 2023).

Plaintiff Cannot Sue Tortfeasor's Liability Carrier

In the case of Nails v. Amguard Ins. Co., No. 3-23-CV-00557 (M.D. Pa. July 10, 2023 Carlson, M.J.), the court granted a Defendant’s Motion to Dismiss in a case involving a pro se Plaintiff who was involved in a motor vehicle accident after which she sued not only the alleged tortfeasor but also the tortfeasor's liability insurance carrier.

The court ruled that Pennsylvania law does not permit a tort Plaintiff to maintain a direct cause of action against the alleged tortfeasor’s insurance carrier.  Magistrate Judge Carlson, quoting Holovich v. Progressive Specialty Ins. Co., 600 F. Supp. 3d 572, 579 (E.D. Pa. 2022), wrote:

“It is well-settled that under Pennsylvania law, an injured party has no right to directly sue the insurer of an alleged tortfeasor unless a provision of the policy or a statute create such a right.” Apalucci v. Agora Syndicate, Inc., 145 F.3d 630, 632 (3d Cir. 1998) (citations omitted); see also Vella v. State Farm Mut. Auto. Ins. Co., Civ. No. 1:17-CV-1900, 2018 WL 1907335, at *2 (M.D. Pa. Apr. 23, 2018) (“In Pennsylvania, it is well-settled law that a third-party claimant cannot bring a cause of action for bad faith against an alleged tortfeasor's liability insurer.  (citing Strutz v. State Farm Mut. Ins. Co., 415 Pa.Super. 371, 609 A.2d 569, 570–71 (1992) and Brown v. Candelora, 708 A.2d 104, 108 (Pa. Commw. 1998))).

*     *     *     *     *     *

Simply put, “absent a permissive statute or policy provision, a tort claimant cannot maintain a direct action against the insurance company.” Mallalieu-Golder Ins. Agency, Inc. v. Exec. Risk Indem., Inc., 254 F. Supp. 2d 521, 525 (M.D. Pa. 2003)."

Judge Carlson went on to note in the Nails case that "[g]iven this settled tenet of Pennsylvania law, Nails may not maintain a direct action against Amguard based upon the alleged negligence of one of its policyholders."

Rather, the Plaintiff may only legally sue the tortfeasor. In this regard, the Plaintiff can rely upon the tortfeasor’s insurance company to satisfy its contractual obligation to pay the claim against the insured tortfeasor.

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.

Can You Keep That Engagement Ring?

In the case of Campbell v. Tang, No. 1006 EDA 2022 (Pa. Super. July 13, 2023 King, J., Sullivan, J., and Stevens, P.J.E.) (Op. by Sullivan, J.), the Pennsylvania Superior Court ruled that a party who broke off a wedding engagement was not required to return engagement jewelry because the party who had proposed marriage was still in a valid marriage at all times during the parties’ dating relationship and engagement.

The court stated that, under these facts, the wedding engagement at issue was void ab initio, thereby rending the gift an unconditional gift.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 1, 2023).

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BEWARE: Petition To Open Judgment Non Pros Must Be Filed Before Any Appeal To Preserve Issues

Oops!

In the case of Reilly v. Bristol Twp., No. 2019-08757 (C.P. Bucks Co. June 30, 2023 Corr, J.), the trial court judge issued a Rule 1925 Opinion in which he requested the Superior Court to dismiss a Plaintiff’s appeal of a civil litigation which a non pros default judgment was entered against the Plaintiff and the Plaintiff failed to preserve any issues for appeal when he filed an appeal from the entry of the judgment of non pros rather than filing a Petition to Open and/or Strike the Default Judgment under Pa. R.C.P. 3051.

According to the Opinion, a Plaintiff police officer sued the Defendant township regarding various employment issues.

During the course of the litigation, the trial court granted a Defendant’s request for the entry of judgment of non pros due to the Plaintiff’s failure to proceed with the case with reasonable promptitude.

The Plaintiff then filed an appeal.

The trial court held that the Plaintiff’s appeal had to be dismissed given that the Plaintiff failed to file a Petition for Relief from the judgment of non pros under Pa. R.C.P. 3051. 

According to the trial court, that Rule, and case law construing that Rule, directly addresses the means of obtaining relief from an entry of a judgment of non pros. The Court noted that, according to the Explanatory Note of the Rule, a Plaintiff must file a Petition for relief from the judgment of non pros to the trial court rather than filing an appeal to the appellate court. 

The trial court ruled that, where the Plaintiff erroneously filed an appeal, the Plaintiff failed to preserve any of the issues regarding the entry of the judgment. As such, the trial court requested the Superior Court to dismiss the Plaintiff’s appeal.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 1, 2023).

Insurance Bad Faith Claim Allowed to Proceed

In the case of Moravia Motorcycle, Inc. v. Allstate Insurance Company, No. 2:21-CV-01274-PLD (W.D. Pa. July 24, 2023 Dodge, M.J.), a federal magistrate judge dismissed a Defendant insurance company’s Motion to Dismiss Plaintiffs’ Breach of Contract and Bad Faith Action over a denial of coverage for water damage to a motorhome.

The court found that the carrier failed to show that the loss was excluded under the policy. 

The carrier also did not demonstrate that there were undisputed facts that would preclude the Plaintiff from proceeding on the bad faith claim asserted. Rather, the Plaintiff argued that the carrier’s handling of the claim was less than complete and was, to some extent, unreasonably delayed.

The court additionally noted that the Plaintiff faulted the carrier for allegedly failing to advise the Plaintiffs, in writing, of the denial of the claim. It was also noted that the carrier allegedly did not provide the Plaintiff with the reasons for the denial.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 10, 2023).

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Plaintiff Granted Leave to Amend To Try To Plead Punitive Damages in a Dog Bite Case

In the case of Jennings v. Lycoming County SPCA, No. CV23-00512 (C.P. Lyc. Co. July 20, 2023 Carlucci, J.), the court struck a Plaintiff’s claim for punitive damages in a dog bite but allowed the Plaintiff the right to amend.

According to the Opinion, the Plaintiff was in the lobby of a local SPCA when she was allegedly attacked by a Terrier named “Peanut.” 

The Plaintiff alleged that the dog had been previously adopted by a family, but returned to the SPCA, after biting a child in that family. The Plaintiff also alleged that the dog previously bit a SPCA employee and that, therefore, the SPCA had actual knowledge that the dog was dangerous.

In his Opinion, Judge Carlucci noted that he was not satisfied that the facts alleged in the Plaintiff's Amended Complaint were sufficient to show that the Defendant's conduct demonstrated a reckless indifference to the interests of others.  However, as noted, the Court granted the Plaintiff leave to try again in another Amended Complaint.    

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 15, 2023).

Photo by Victor Grabarczyk on www.unsplash.com.

Wife Found to Be Bound By New Husband's Previous Execution of Stacking Waivers on UIM Policy

In the case of Golik v. Erie Insurance Exchange, No. 1110 WDA 2022 (Pa. Super. Aug. 7, 2023 Murray, J., McLaughlin, J. and Pellegrini, J.) (Op. by Murray, J.), the Pennsylvania Superior Court vacated a judgment entered by the trial court in favor of the Plaintiff on an issue involving the stacking of UIM benefits relative to a motor vehicle accident case.

According to the Opinion, the Plaintiff-wife joined her husband’s existing automobile insurance policy a year after the couple’s marriage in 2004. The husband had signed stacking waivers once previously in 1998 and again, subsequently, in 2004.

The Plaintiff-wife testified that she did not recall ever seeing or discussing any stacking waivers.

The Plaintiff-wife claimed that she was entitled to stacked benefits because she never signed or even heard about any stacking waivers relative to the insurance policy in question.

The trial court sided with the Plaintiff’s argument, holding that the signature of the policy’s first named insured alone was not enough to allow for a full execution of a waiver of stacked coverage. The trial court ruled that the carrier was required to provide each named insured with a chance to waive stacked coverage. In so ruling, the trial court did concede that there was no binding precedent addressing the issue presented.

On appeal, the Pennsylvania Superior Court determined that, although there was no case law on point, past rulings had suggested that a named insured, even when subsequently added to a policy, is presumed to have known about available options and is bound by the first named insured’s election of a lesser coverage, unless the insured takes affirmative steps to try to change the coverage.

Based upon the evidence in this case, the Superior Court ruled that the Plaintiff-wife had constructive knowledge of the waiver and was bound by her husband’s signature.

The Pennsylvania Superior Court further held that the plain language of §1738 of the Motor Vehicle Financial Responsibility Law only required notice to be provided to the named insured who purchased the policy.

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

Source: Article: “Pa. Superior Court Vacates $100K Award of Stacked UM/UIM Coverage for Woman Whose Husband Signed Waiver” By: Elisa Furman. Pennsylvania Law Weekly (Aug. 8, 2023).

Third Circuit: No Attorney Fees Allowed on Remand of a Case To State Court Except in Limited Circumstances

In the case of Medical Associates of Erie v. Zaycowsky, No. 22-1402 (3d. Cir. Aug. 9, 2023 Hardiman, J., Porter, J., and Fisher, J.), the United States Court of Appeals for the Third Circuit concluded that federal district courts lacked the authority to award attorney’s fees under 28 U.S.C. §1447(c) when a case has been properly removed from state court but subsequently remanded based upon a forum selection clause. 

The Third Circuit noted that §1447(c) instead only allows for an award of attorney fees in cases involving a remand where the removal to federal court failed to meet the statutory requirements, or where the court lacked subject matter jurisdiction over the removed case. 

In other words, the authority of a district court to offer a remedy for alleged abuses of the removal procedure is limited.

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

Source: Article: “3rd Cir. Clarifies When District Courts Can Award Attorney Fees on Remand” By Riley Brennan of the Pennsylvania Law Weekly (Aug. 11, 2023).

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Motion for Summary Judgment on Punitive Damages Claims Denied in a Trucking Accident Case

In the case of Capie v. Lobao, No. 3:21-CV-00829-KM (M.D. Pa. Aug. 4, 2023 Mehalchick, M.J.), Federal Magistrate Judge Karoline Mehalchick of the Federal Middle District Court of Pennsylvania denied the Defendant trucking company’s Motion for Summary Judgment on the issue of punitive damages.

According to the Opinion, this case involves a truck driver who allegedly failed to get out and look prior to reversing his tractor trailer on a public roadway and, as a result, allegedly struck the Plaintiff. The Plaintiff had amended the Complaint to add a claim for punitive damages after completing the deposition of the driver.

At the deposition, the driver admitted that his decision to reverse his vehicle while knowing that there could possibly have been a vehicle behind him could be viewed as reckless conduct.

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


I send thanks to Attorney Jamie Anzalone and Attorney Kelly Ciravalo for bringing this decision to my attention.

Court Addresses Social Host Liability Issues For Homeowners Where Minor Allegedly Drank Alcohol in the Home and Was then Injured

Homeowner, Frank The Tank, Incurs Social Host Liability

In the case of Szydlowski v. Pusz, No. 5649-CV-2020 (C.P. Monroe Co. July 12, 2023), the court granted in part and denied in part a Motion for Summary Judgment in a case involving allegations of social host liability against homeowners for allegedly furnishing alcohol to a minor in their home.

According to the Opinion, the Plaintiff was 19 years of age when he allegedly drank two (2) alcoholic beverages while attending a party at the Defendants’ home.  In this context, under Pennsylvania law, anyone under the drinking age of 21 is considered to be a "minor."

In terms of the subject accident, another adult at the party allegedly lost control of a ATV and crashed into the Plaintiff, causing him injuries.

The Plaintiff sued and included the homeowners as Defendants on a claim of negligence, alleging that he was unable to evade the ATV because of the effects of the alcohol he had consumed at the Defendants’ home.

In this matter, the Defendant homeowners maintained that they did not agree to, or plan, an underage drinking party. However, the Plaintiff noted that a State Trooper who had investigated the accident had testified that every person attending the party was drinking.

The court held that parents who hold a party that includes minor guests and knowingly allow them to consume any amount of alcohol are subject to potential social host liability.

The court additionally noted that the separate issue of whether a minor became intoxicated as a result of drinking alcohol in the home goes to the question of causation, not liability.

Judge Zulick stated that a minor Plaintiff need not prove that the Defendant homeowners specifically served him alcohol in order to impose social host liability against those Defendants. However, there must be evidence that the homeowners did more than simply have alcohol present in their home.

The court otherwise indicated that homeowner Defendants who knowingly allow their premises to be generally used for the purpose of serving alcohol to minors is sufficient evidence for the imposition of liability, even though the alcohol may have been provided by someone other than the homeowner.

With the Defendants' Motion before the Court, the central question was whether the homeowner Defendants knowingly served alcohol to the minor Plaintiff. The court found that there were material questions of fact in this regard and that, as such, the homeowner Defendants were not entitled to summary judgment. As such, this part of the Defendants’ Motion was denied.

However, the court did grant the Defendants’ Motion for Summary Judgment relative to the Plaintiff’s punitive damages claims.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 1, 2023).

Source of video:  Old Schoool by the Montecito Picture Company (2003)

Pennsylvania Supreme Court To Possibly Cure Epidemic of COVID-19 Business Interruption Coverage Cases

According to a recent July 14, 2023 article in the Pennsylvania Law Weekly entitled “Pa. Supreme Court Agrees to Hear Arguments in Two Diverging COVID-19 Business Interruption Cases,” by Marianna Wharry, the Pennsylvania Supreme Court has granted allocator to hear arguments in the case of MacMiles v. Erie Insurance Exchange and the case of Ungarean v. CNA and Valley Forge Insurance. 

In these two (2) cases, the Pennsylvania Superior Court reached opposite conclusions regarding whether insureds should be allowed business interruption insurance coverage for losses stemming from the COVID-19 pandemic.

The Tort Talk Blog post on the MacMiles case can be viewed HERE.  The Tort Talk Blog post on the Ungarean case can be viewed HERE


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

COVID-19 Pandemic Time of Court Closures Is Not To Be Subtracted From Delay Damages Calculation

In the case of Lynch v. Ducasse, No. 3:18-CV-2044 (M.D. Pa. July 25, 2023 Mariani, J.), the court granted a Plaintiff’s Motion for Delay Damages in a civil litigation matter arising out of injuries the Plaintiff allegedly suffered from the Defendant possession and discharge of handgun.

After the return of a multi-million dollar jury verdict, the Plaintiff asserted that he was entitled to delay damages from September of 2019 through June of 2023.

The Defendant challenged the Plaintiff’s calculation and argued that, due to the COVID-19 pandemic and the resulting suspension of proceedings in the court, the 472 days during which jury trials were “prohibited” during the pandemic had to be excluded from the delay damages calculation.

Judge Mariani found that the Defendant’s argument was not supported by the language of Pa. R.C.P. 238 or Pennsylvania case law.  In so ruling, Judge Mariani cited to the case of Getting v. Mark Sales & Leasing, 274 A.3d 1251 (Pa. Super. 2022) and other cases relying upon the Getting decision, in which the Pennsylvania state courts have repeatedly ruled that the time of court closures during the COVID-19 pandemic are not to be excluded from the delay damages calculation.

The rationale, according to the Getting decision, is that the delay damages Rule is not just about time but about making a Plaintiff whole relative to the injuries and damages sustained.     

As such, the court granted in this Lynch case granted the Plaintiff’s Motion for Delay Damages.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 8, 2023).

Avoid any Delay Damages issues by bringing your case to a close.

Call or Email to Schedule Your Mediation:

DanCummins@CumminsLaw.net

(570) 319-5899

Selected Again To Appear in The Best Lawyers In America Directory

Proud to note that the selection to appear in the 2024 edition of the national directory, The Best Lawyers in America, under the category of Personal Injury - Defense.

As one of only a few insurance defense attorneys in all of northeastern and central Pennsylvania to earn this distinction, it is noted that this is a recognition has been earned every year over the past 8 years dating back to 2015.

The Best Lawyers in America directory has been regarded by lawyers and the public for more than 40 years as the most credible measure of legal integrity and excellence in the United States.  Inclusion in the direction is based upon a comprehensive peer-review survey.  Lawyers are not permitted to pay a fee to be included in this directory.

Sending much gratitude and many thanks to clients, fellow attorneys, friends, and my wife and family for their great support.

Sad to See......

Trickett Hall

Sad To See.....

It was announced recently that The Dickinson School of Law is being merged again with Penn State Law.

When I graduated from The Dickinson School of Law in 1993 it was an independent law school, that is, one of the oldest independent law schools in the nation, and was a great, small, intimate place for the intensive study of the law.  What set it apart was that it was a small, independent law school in a small town with little distractions and where nearly everyone knew nearly everyone else there.  In other words, ideal conditions to study the law.

Then in 1997, there was a merger with Penn State and, not long thereafter, there was a movement by Penn State to emphasize the law school that was built at State College over the Law School that had been in Carlisle for over 100 years, which movement was detrimental to the continuing viability of The Dickinson School of Law in Carlisle, PA.

Penn State also remodeled the Law School in Carlisle such that the grounds and the buildings, other than the exterior of the main building, looked nothing like when I went to school there. When I walked through the remodeled school it was looked and felt so different it was as if I never even went there.

Even the red and white colors of the Dickinson School of Law were replaced with the blue and white colors of Penn State.

Thereafter, I was happy and hopeful to see thatThe Dickinson School of Law eventually push back against its lesser status as compared to the law school in State College.  The Dickinson School of Law separated from Penn State law but remained affiliated.  After that, The Dickinson School of Law in Carlisle began to outrank the law school at State College in the rankings.

Now the schools are merging back together.

Sad to see.

It's the end of The Dickinson School of Law (again) as we knew it.

The indications that the Law School in Carlisle is safe ring hollow as that's what the alumni were told the last time around the merger happened.

Please note that I have no complaints with Penn State and wish that institution well.

Just a sense of sadness on the loss of the Law School that I went to and knew. The Dickinson School of Law School as many knew it is no more.

Dickinson Law alumni can at least take solace in the fact that Fay's Country Kitchen is still open a few blocks away.

The Curtilage

Case Dismissed Due to Statute of Limitations Defense

In the case of O’Hearn v. Wells Fargo Home Mortgage, Inc., No. 2013-CV-7170 (C.P. Lack. Co. Aug. 4, 2023 Nealon, J.), the court granted a Defendant’s Motion for Summary Judgment based upon a statute of limitations defense.

According to the Opinion, this matter involved a case in which the Plaintiffs’ father passed away back in 2004 and his estate defaulted on his mortgage on his property.  At some point thereafter, the Defendant bank filed a mortgage foreclosure action against the estate and locked up the deceased father’s residence in an apparent attempt to secure and protect that property.

Upon gaining access to the mortgage property five (5) years later on June 14, 2009, the Plaintiffs discovered that the residence had been vandalized by intruders who had damaged the property and stole or destroyed personal property contained in the file.

The Plaintiffs filed suit against the bank on December 20, 2013 asserting various claims for waste, conversion, misrepresentation, and negligent infliction of emotional distress based upon the banks allegedly failure to properly secure their deceased father’s residence and protect the contents.

Relying upon the Plaintiff’s deposition testimony and the record before the court, the bank filed a Motion for Summary Judgment asserting, in part, a statute of limitations defense.

Judge Nealon confirmed that the claims presented by the Plaintiff were indeed subject to a two (2) year statue of limitations which began to run when the Plaintiff’s discovered their alleged losses and damages back on June 14, 2009.

Since the Plaintiffs did not commence their lawsuit within the two (2) year statute of limitations, the court found that the claims presented were barred.

As such, the Motion for Summary Judgment filed by the Defendant was granted.


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

Denial of COVID-19 Business Losses Claim Upheld

In the case of URBN US Retail LLC v. Zurich Am. Ins. Co., No. 21-4807 (E.D. Pa. June 28, 2023 Diamond J.), the court granted a Defendant carrier’s Motion to Dismiss a COVID-19 coverage action brought by the insured.

In this matter, the Plaintiff brought a lawsuit for coverage for COVID-19 losses stemming from the closing of its stores and the adding of safety facilities.

The court found that the Plaintiff failed to show the “direct physical loss or damage” required by the policy language in order to trigger coverage.

The court additionally noted that the contamination exclusion provision served to bar coverage as well.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 20, 2023).

Pennsylvania Superior Court Reinstates Med Mal Claim That Had Been Dismissed Due to Service of Process Issues [Non-Precedential Decision]

In the case of Harrigan v. Forsythe, No. 1421 MDA 2021 (Pa. Super. June 30, 2023 Bowes, J., McCaffery, J., and Stevens, P.J.E.) (Mem. Op. by McCaffery, J.) [Non-precedential decision], the Pennsylvania Superior Court reinstated a medical malpractice claim that was dismissed by a trial court judge because the Plaintiff had failed to properly serve the Defendant either in a timely manner or through the use of a Sheriff.

In this split decision, the Superior Court majority, led by Judge Daniel McCaffery (who is currently running for Pennsylvania Supreme Court) agreed that, although the Plaintiff had properly failed to give notice to the defense about the case under the Rules pertaining to service, it was Judge McCaffery’s Opinion that Pennsylvania Courts have moved away from a “rigid compliance requirement” or a “mechanical approach” to the notice to the Defendant of the filing of a lawsuit, so long as the Plaintiffs make a good faith effort to notify Defendants of the legal action.

In his dissenting Opinion, Judge Correale Stevens stated that the majority’s holding went too far. Judge Stevens stated, “while I agree with the Majority that the rules should be interpreted ‘liberally,’ such liberal interpretation should not lead to a complete nullification of the rules.” 

In this case, the Plaintiff had served original process through the use of a private process server as opposed to a Sheriff. Also, that attempt at service was outside the two year statute of limitations. 

The trial court had sustained Preliminary Objections and dismissed the case after finding that the Plaintiff failed to produce any evidence showing that she fulfilled her legal duty to make a good faith effort to serve the Complaint.

Judge McCaffery noted that the Plaintiff had filed her Complaint within the two (2) year statute of limitations, had filed a Motion to Admit her Out-of-State Attorney, and also hired a private process server to complete service. 

Accordingly, Judge McCaffery found that the Plaintiff had provided actual, albeit defective, notice to the Defendant when she employed a private process server as opposed to the Sheriff.  Judge McCaffery pointed out that the Defendants do not allege that they never received the Complaint from the private process service. 

As such, Judge McCaffery stated that it was undeniable that the Defendants had been put on notice of the impending lawsuit and that, as such, they did not suffer any unfair surprise or prejudice.

As noted, the Superior Court reinstated this medical malpractice action that had been dismissed by the trial court.

Anyone wishing to review a copy of this decision may click this LINK.  Judge Stevens Dissenting Opinion can be viewed HERE.


Source: Article - “Pa. Superior Court Stresses Liberal Application of Service Rules in Reinstating Med Mal Lawsuit,” By Max Mitchell The Legal Intelligencer (July 5, 2023).

Pennsylvania Supreme Court Addresses Standard for Determining Constitutionality of Punitive Damages Awards

In its recent Pro-Plaintiff decision in the case of Bert Company v. Turk, No. 13 WAP 2022 (Pa. July 19, 2023) (Op. by Donohue, J.) [Numerous Concurring Opinions written by numerous Justices], the Pennsylvania Supreme Court considered United States Supreme Court precedent in addressing the constitutionality of an award of punitive damages by a civil jury in Pennsylvania. 

More specifically, the court addressed the ratio calculation, that is, the appropriate ratio calculation measuring the relationship between the amount of punitive damages awarded against multiple Defendants who are found to be joint tortfeasors, and the compensatory damages awarded.

The court noted that the ratio is one of the considerations utilized in assessing whether an award of punitive damages is unconstitutionally excessive.

This matter arose out of a business dispute in which the Plaintiffs claimed that the Defendants had poached employees from the Plaintiff’s business as an attempt to harm the Plaintiff’s business.

The jury awarded 11.2 times as many dollars for punitive damages as it did for compensatory damages. More specifically, the jury’s verdict awarded $250,000.00 in compensatory damages as well as a total of $2.8 million dollars in punitive damages. The jury split the damages between the four (4) Defendants.

The Defendants based their 11.2 ratio on the cumulative punitive damages against all four (4) Defendants. The Pennsylvania Supreme Court determined that this was an incorrect calculation.

In its decision, the Pennsylvania Supreme Court noted that the Pennsylvania Superior Court calculated a punitive to compensatory damages ratio using a per-Defendant approach, as calculated by the trial court, rather than a per-judgment approach.

In its own decision, the Pennsylvania Supreme Court generally endorsed the per-Defendant approach as being consistent with federal constitutional principles that require consideration of a Defendant’s due process rights.

The Pennsylvania Supreme Court additionally concluded that, under the facts and circumstances of this case, it was appropriate to consider the potential harm that was likely to occur from the concerted conduct of the Defendants when determining whether the measure of punishment was both reasonable and proportionate. 

As such, the Pennsylvania Supreme Court affirmed the Order of the Superior Court.

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

Source: Article - “Pa. High Court Adopts Per-Defendant Calculation of Punitive - To - Compensatory Damages Ratio.” By Aleeza Furman of the Pennsylvania Law Weekly (July 19, 2023).

Based on this decision by the Pennsylvania Supreme Court, some commentators have noted that the ability of defendants to challenge the amount of punitive damages awarded, and other commentators have indicated that, now, "the sky's the limit" in terms of the amount of punitive damages that Plaintiffs can recover in a personal injury case.  See "'Sky's The Limit':  Pa. Justices' Punitive Damages Ruling Creates Uncertainty for Defendants." By Aleeza Furman of the Pennsylvania Law Weekly (July 24, 2019).