Tuesday, January 31, 2023

Sufficient Quantity and Quality of Contacts Found to Render Philadelphia County as a Proper Venue

In the case of Troseth v. Carson Helicopters Holding Co. Inc., March Term, No. 1222 (C.P. Phila. Co. Aug. 24, 2022 Kennedy, J.), the court ruled that venue was proper over all of the Defendants in this matter because one of the Defendants had sufficient quantity and quality of contacts so as to qualify Philadelphia County as a proper venue. The court additionally held that venue was proper for the remaining Defendant under Pa. R.C.P. 1006(c)(1), which states that, where venue is proper for one (1) Defendant, it is proper for all Defendants.

In this matter, the Plaintiff was injured in a helicopter crash.

The Defendants asserted that Philadelphia County was an improper venue for the suit under Pa. R.C.P. 2179, which governs proper venue for corporate Defendants. The Defendant filed Preliminary Objections. The trial court overruled the Preliminary Objections and the Defendants then moved for an appellate certification of the Orders so that they could immediately appeal the ruling to the extent that it involved a substantial venue issue.

As to the quality of contacts, the court noted that the corporate Defendant’s acts within the county must be those acts directly furthering or essential to their corporate objective. In this regard, the court held that the helicopter manufacturer was in the business of manufacturing, refurbishing, and selling helicopters, and had contracts with manufacturers in northern Philadelphia. The court found that these contacts were of sufficient quality relative to the venue question.

With regard to the quantity test, the court noted that a Defendant’s acts must be sufficiently continuous so as to be considered habitual for venue purposes. The court additionally referenced precedent finding that venue was properly established where just 1-2% of a company’s gross sales were located within the venue jurisdiction.

After reviewing the record before it, the court noted that the helicopter manufacturer had specifically contracted with a Philadelphia manufacturer to produce the interior materials and items for helicopters. The court found that this evidence satisfied the quantity prong of the test.

The court also noted that the Defendant helicopter manufacturer also had other contacts in Philadelphia County and used Philadelphia airports to transport their helicopters.

Given that the court found that venue was proper as to the helicopter corporate Defendant, the court noted that, under Pa. R.C.P. 1006, venue was also proper for the other Defendants.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 22, 2022).

Source of image:  Photo by Olly Peters on www.unsplash.com.

Monday, January 30, 2023






Trial Court Refuses to Award Delay Damages Where Repeated Delays Were Caused by Plaintiff

In the case of Tyler v. Hoover, June Term, 2019, No. 06965 (C.P. Phila. Co. Aug. 19, 2022 Hill, J.), the court denied a Plaintiff’s Motion for Delay Damages following a trial in a rear-end accident case and wrote this Rule 1925 Opinion for appellate purposes.

The court, reviewing Rule 238, found that the Plaintiff’s request for delay damages was unwarranted because the Plaintiff’s noncompliance with the discovery rules and Orders of Court had led to certain delays in the matter.  According to the Opinion, the Defendant had to file numerous motions to compel and motions for sanctions relative to written discovery and depositions in order to push the case forward.

The court also emphasized that, even if the delay of the trial had been solely attributable to Defendants, the Plaintiffs in this matter had not provided any other basis to support their formulation of the alleged delay damages. 

As such, because the Plaintiff’s estimation of delay damages was not properly calculated to reflect the lengthy pre-trial history of the case, the court found that it would be “patently unjust” and an abuse of discretion to award delay damages in this matter.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 6, 2022).



Philadelphia Trial Court Grants Petition To Transfer Under Doctrine of Forum Non Conveniens

In the case of Smith v. CMS West, Inc., July Term 2020, No. 02048 (C.P. Phila. Co. Sept. 2, 2022) (Shreeves-Johns, J), the court affirmed a decision granting a Motion to Transfer Venue under Pa. R.C.P. 1006(d)(1) on the grounds that the former venue was oppressive to several of the witnesses who did not reside within the county where the case was filed and which witnesses would have to travel several hours for depositions and the trial.   

This matter arose out of a strict products liablity incident that occurred in Butler County, which is near Pittsburgh.  The Plaintiff filed suit in Philadelphia.

After the trial court denied Preliminary Objections asserting improper venue, certain Defendants filed a joint Petition to Transfer Venue for Forum Non Conveniens seeking to have the matter transferred to Butler County under Pa.R.C.P. 1006(d)(1).

As noted above, the trial court granted this Petition to Transfer. In doing so, the court rejected the Plaintiff’s arguments that the court did not allow the parties to engage in enough discovery related to the issue of venue.  The court noted that the Plaintiffs were allowed to submit several Affidavits to the court regarding the venue selection.   

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Dec. 13, 2022). 

Pennsylvania Supreme Court's New Medical Malpractice Venue Rules Result In Skyrocketing Number of Med Mal Suits in Philadelphia

On January 1, 2023, the new venue Rules of Civil Procedure promulgated by the Pennsylvania Supreme Court went into effect.

Under the old Rules, Plaintiffs had to pursue their medical malpractice claims in one of the counties were the treatment was actually completed.

Under the new plaintiff-friendly Rules issued by the Pennsylvania Supreme Court, Plaintiffs are now allowed to sue their medical providers in any of the counties where the medical provider regularly does business or has significant contacts.  The Tort Talk blog post on that Rule change can be viewed HERE

According to a January 23, 2023 article by Aleeza Furman of the The Legal Intelligencer entitled "20 Days Into New Venue Rule, Phila. Sees Surge of Medical Malpractice Filings," the filings of med mal suits in Philadelphia County are already up an astounding 148% as compared to last years monthly filings of medical malpractice suits.  That article can be viewed HERE.

Friday, January 27, 2023

ARTICLE: Pa. Supreme Court Decisions and Rule Changes Continue to Favor Plaintiff's Causes

This article of mine was recently published in the Pennsylvania Law Weekly on January 19, 2023 and is republished here with permission.

Pa. Supreme Court Decisions and Rule Changes Continue to Favor Plaintiff's Causes

By Daniel E. Cummins | January 19, 2023

For over the past five years or so, the plaintiffs bar has realized one important victory after another at the Pennsylvania Supreme Court level in terms of plaintiffs-friendly precedent and rule changes.

Like a well-oiled machine, after putting forth a sustained and organized effort to help to secure their favored candidates an election to the Pennsylvania Supreme Court, the plaintiffs bar has followed up by litigating issues important to plaintiffs up the appellate ladder to what has become the promised land for them in terms of repeated victories on issues important to injured parties.

With the pendulum of judicial thought at the Pennsylvania Supreme Court level having swung so far in the plaintiffs favor, it appears that the sky’s the limit for the plaintiffs bar to continue to alter the legal landscape in Pennsylvania for the benefit of injured parties for the foreseeable future, all of which is much to the dismay and chagrin of members of the defense bar.

Repeatedly Overturning Decades-Long Precedent

While the defense bar has realized some recent victories at the Pennsylvania Supreme Court level in terms of the overturning the scope of the long-arm jurisdiction statute, the limitation of discovery of peer review records in medical malpractice cases, and the limitation of attorney malpractice cases by the court’s adoption of the “occurrence” rule of liability, those victories have been blips on the radar as compared to the wealth of victories secured by plaintiffs. With this Pennsylvania Supreme Court and its judicial perspective, the plaintiffs bar has been repeatedly successful in convincing the court to overturn decades-long precedent that previously favored defendants.

For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Pennsylvania Supreme Court to overrule the long-followed and then 12-year-old Pennsylvania Commonwealth Court decision in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa.Cmwlth. 2006), to hold that PennDOT should only be immune from suit in guide rail claims in limited circumstances. Under the prior Fagan decision there was essentially no liability on any claims against PennDOT relative to claims of negligence with respect to guide rails in state highway motor vehicle accident matters.

Ever since the Pennsylvania Supreme Court decision in the Cagey case, when PennDOT has installed a guide rail, sovereign immunity is waived if it is established by the plaintiff that the agency’s negligent installation and design created a dangerous condition that caused or contributed to the happening of a motor vehicle accident. This decision by the Pennsylvania Supreme Court kicked the door wide open for plaintiffs to again sue PennDOT in personal injury matters. While this decision is favorable for plaintiffs, the concern is that it will also continue to contribute to the ongoing increases of taxes and toll rates in order to pay for these additional personal injury lawsuits and awards against PennDOT.

In another reversal from a few years ago in the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Pennsylvania Supreme Court again assisted the plaintiffs bar in generating additional potential lawsuits by overturning 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1).

In Balentine, the plaintiff’s decedent was working as a contractor on a water system project just off to the side of a roadway. A government inspector pulled up to the scene and parked his car and left it running. A third car struck the parked, stationary government inspector’s car and propelled that stationary vehicle into the decedent, resulting in fatal injuries.

The majority of the Pennsylvania Supreme Court reviewed the law behind the Tort Claims Act and held that movement of a vehicle, whether voluntary or involuntary, is not required by the statutory language of the vehicle liability exception in order for that exception to apply. With this ruling in favor of the plaintiff, the Pennsylvania Supreme Court eradicated 30 years of precedent going the other way and thereby exposed governmental agencies to additional litigation and liability, the costs of which will likely be passed on to citizens in the form of higher taxes.

As another example, in 2019, the plaintiffs bar finally realized success at the Pennsylvania Supreme Court level in their sustained efforts to overturn the household exclusion found in automobile insurance policies. After 20 years of failed attempts to secure a decision finding that the exclusion was invalid and therefore unenforceable, the plaintiffs bar finally prevailed in convincing this Pennsylvania Supreme Court to issue a stunning decision to overturn that long-standing precedent in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019).

In an opinion with language that was seemingly hostile toward the insurance industry, the Pennsylvania Supreme Court did not limit its decision to the facts of the case before it, but rather, in a plaintiffs-friendly fashion attempted to set up its decision in Gallagher v. GEICO as entirely eradicating the household exclusion across the board.

While federal court judges addressing the validity of the household exclusion ever since Gallagher have largely followed the Pennsylvania Supreme Court’s mandate in favor of plaintiffs in this regard, some state court appellate and trial judges have limited the Gallagher v. GEICO decision to its facts and have noted that the household exclusion still remains valid and enforceable in certain circumstances.

Yet, the Pennsylvania Supreme Court has since reiterated its plaintiffs-friendly stance in the case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021), by reaffirming its previous decision in Gallagher v. GEICO and again ruling that plaintiffs need not worry about the household exclusion provision as it is invalid and, therefore, unenforceable. Whether other state and federal courts will follow this effort at the complete eradication of the exclusion or will, again, limit the Pennsylvania Supreme Court’s decision(s) to its facts, remains to be seen.

Sudden Emergency Doctrine

The plaintiffs bar rolled on to other areas of the law with additional successes at the Supreme Court level. With the case of Graham v. Check, 243 A.3d 153 (Pa. 2020), the plaintiffs convinced the Pennsylvania Supreme Court to somewhat limit the application of the sudden emergency rule in a manner that favors plaintiffs.

Under the long-standing sudden emergency doctrine, a defendant motorist is required to use an honest judgment in response to being faced with a sudden emergency on the roadway, such as a pedestrian negligently darting out from an area of safety and running out into the path of an oncoming vehicle without looking.

In Graham, which involved a pedestrian who was struck by the defendant motorist while the pedestrian was within a crosswalk, the Pennsylvania Supreme Court found that the trial court in this case erred in instructing the jury on the sudden emergency doctrine. The court stated that the evidence in the case failed to lay a foundation for the provision of that instruction to the jury.

In light of this plaintiffs-favorable decision by the Pennsylvania Supreme Court, it is likely that the application of the sudden emergency doctrine will no longer be automatically applied in dart-out pedestrian cases, particularly in the case of a pedestrian who was within a crosswalk at the time of an incident. As such, with this decision, the plaintiffs bar has been successful in securing a limitation of the application of this defense in motor vehicle accident matters.

Forum Shopping by Plaintiffs Permitted

In addition to limiting the defenses of tortfeasors and expanding the types of claims plaintiffs may seek a monetary recovery for, the plaintiffs bar has also been successful in convincing the Pennsylvania Supreme Court to repeatedly expand opportunities for plaintiffs to shop for the best forum to obtain the most liberal recovery possible.

In the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021), the plaintiffs bar was successful in litigating the issue of proper venue in internet defamation cases and convinced the Pennsylvania Supreme Court to rule that internet-based defamation claims can be filed anywhere that the defamatory statements were viewed and understood as defamatory.

Since the internet is anywhere and everywhere, it appears that, under this ruling by the Pennsylvania Supreme Court, an internet defamation case may be filed anywhere in Pennsylvania, thereby allowing the plaintiffs to file in the most liberal courts in Pennsylvania, if desired.

As noted below, the Pennsylvania Supreme Court also supported the expansion of the plaintiffs’ ability to engage in forum shopping sprees in medical malpractice cases.

Plaintiffs-Friendly Rule Changes

In addition to securing the above-referenced plaintiffs-friendly decision on venue from the Pennsylvania Supreme Court, the plaintiffs bar has also had great success in convincing the Court to issue changes to long-standing Pennsylvania Rules of Civil Procedure on venue.

Under a Pennsylvania Supreme Court Order recently issued on Aug. 25, 2022, the court approved plaintiffs-favorable amendments to the medical malpractice venue rules. Under the new medical malpractice litigation venue rules, that went into effect on Jan. 1, plaintiffs will now be able to go on potentially lucrative forum shopping trips in terms of where they file their medical malpractice lawsuits.

These amendments undo a 20 year old Rule of Civil Procedure. Under the old rule, plaintiffs were required in medical malpractice cases to sue their medical providers in the counties where the treatment was completed.

Under the new rules, plaintiffs will be allowed to sue providers in any of the counties where the providers regularly do business or have significant contacts. With medical systems advertising on television and on the internet all across the commonwealth of Pennsylvania and also having satellite offices in many areas, the Pennsylvania Supreme Court has opened the door for Plaintiffs to choose to file their medical malpractice claims in courts that are considered to have the most liberal, plaintiffs-friendly jurors.

Commentators have noted a concern that this Rule change may result in higher insurance premiums for medical providers, which may lead or force some doctors to leave the commonwealth to practice medicine elsewhere. There is also a concern that medical provider defendants who may not be responsible will be added to lawsuits for the sole purpose of triggering jurisdiction in a liberal venue. Another concern is that the Philadelphia County and Allegheny County Courts of Common Pleas will now again face a deluge of medical malpractice cases involving treatment that was performed elsewhere.

The Supreme Court of Pennsylvania has also recently approved other plaintiffs-friendly changes to the Pennsylvania Rules of Civil Procedure. In an order that went into effect on July 1, 2022, the Pennsylvania Supreme Court put into place a new rule amending Pennsylvania Rule of Civil Procedure 1311.1, which applies to appeals from courthouse arbitration proceedings.

Under the new Rule 1311.1, the Pennsylvania Supreme Court upped the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration award.

Under the old rule, that limit was set at $25,000. Under the new rule, the maximum limit has been changed to “an amount equal to the jurisdictional limit for compulsory arbitration of the judicial district in which the action was filed.” While different judicial districts have differing jurisdictional limits for arbitration, most counties have their limit is capped at a maximum $50,000 under Section 7361 of the Judicial Code.

The Sky’s the Limit

With this Pennsylvania Supreme Court, it appears that the sky’s the limit for the plaintiffs bar to try to effectuate additional changes in Pennsylvania law for the benefit of plaintiffs.

What other decades long-standing precedent and rules that may be changed by the Pennsylvania Supreme Court for the benefit of plaintiffs remains to be seen. The plaintiffs bar has raised challenges to the Fair Share Act in terms of whether it should be applied to innocent plaintiffs who bear no contributory negligence with regards to the happening of an accident. The plaintiffs bar also has their sights set on overturning the regular use exclusion found in motor vehicle policies and that issue is currently pending before the Pennsylvania Supreme Court.

Relative to the current makeup and judicial perspective of the Pennsylvania Supreme Court, there certainly has never been a better time to be a plaintiff or a plaintiffs lawyer in Pennsylvania. Only time will tell what additional expansions of the avenues of recovery for injured parties and what limitations on defenses the plaintiffs bar will be able to accomplish and realize at the Supreme Court level while the pendulum remains so far over on their side of the bar.

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

Thursday, January 26, 2023

Lackawanna County Court Denies Motion to Bifurcate a Post-Koken Auto Accident Case

In the case of Ives v. McLain, No. 20-CV-2658 (C.P. Lacka. Co. Jan. 10, 2023 Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas denied a Motion to Bifurcate filed by a third party Defendant in a post-Koken automobile accident litigation.

The tortfeasor Defendant asserted that it would be unfair for him to proceed to trial with a UIM carrier insurance company sitting at the same table as a Co-Defendant. 

The tortfeasor also asserted that the interest of judicial economy would be furthered by bifurcation, particularly if the Plaintiff were to secure a verdict less than the liability limits, which would thereby preclude the need for any trial on the Plaintiff’s UIM claim.

The court reviewed the law under Pa. R.C.P. 213(b) and denied the motion. The court found that all counsel are equipped to outline their respective positions to the jury in such a way to avoid any confusion or prejudice regarding the issues presented in this combined trial.

The court additionally indicated that the lay persons on the jury would be properly instructed by the court on the law applicable to negligence claims as well as breach of contract claims at trial.

As such, the court denied the tortfeasor’s Motion to Bifurcate.

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

As A Matter of First Impression Pennsylvania Superior Court Upholds UIM Limit of Protection Clause

In the case of Erie Ins. Exchange v. Backmeier, No. 323 WDA 2022 (Pa. Super. Dec. 28, 2022 Olson, J., Dubow, J., and Colins, J.) (Op. by Olson, J.), the Pennsylvania Superior Court affirmed a trial court’s granting of Erie Insurance’s Motion for Judgment on the Pleadings and denial of the injured party’s cross-Motion for Judgment on the Pleadings in a case addressing the issue of whether a “limit of protection” clause capping second priority UIM coverage to the highest limit of liability of any signal second priority UIM coverage policy violates the excess coverage requirement of Pennsylvania’s Motor Vehicle Financial Responsibility Law.

In a matter of first impression, the Superior Court panel ruled that a particular limit on the amount of underinsured motorist coverage and insured may recover from multiple policy does not violate Pennsylvania’s MVFRL.

In this case, the insurance policy clause at issue capped the Plaintiff’s total available UIM coverage at the highest limit of a single one of her policies, rather than capping her coverage at the combined limit of the two (2) policies she held.

The court otherwise noted that the stacking waivers that the Plaintiff had signed for each of her automobile insurance policies precluded her from combing the coverage limits of the two (2) separate policies. The court found that, where a Plaintiff knowingly and effectively waived stacking, the type of “limit of protection” clause found in an automobile insurance policy does not violate the excess coverage requirement of the MVFRL.

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

Source: “Pa. Appeals Judges Allow Cap on UIM Insurance Under ‘Limit of Protection’ Clause,” by Aleeza Furman Pennsylvania Law Weekly (Dec. 29, 2022).

Wednesday, January 25, 2023

Bad Faith Claim Dismissed After Court Finds that Coverage Was Excluded Under the Policy

In the case of Cushman & Wakefield of Pa., LLC v. Illinois Nat’l Ins. Program, Oct. Term 2019, No. 885 (C.P. Phila. Co. Oct. 19, 2022 Djerassi, J.), the court granted a Defendant insurance company’s Motion to Dismiss claims for breach of contract and statutory bad faith stemming from the Defendant’s refusal to indemnify Plaintiff’s litigation cost in an action for fraudulent misrepresentation.

Although the Plaintiff argued that the Defendant insurance company had a duty to indemnify the Plaintiff under the policy, the trial court in this matter disagreed and held that the language of the insured’s policy specifically excluded coverage for matters arising out of a Plaintiff’s fraudulent conduct.

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

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

Motion for Partial Summary Judgment Granted in UIM Bad Faith Case

In the case of Solano-Sanchez v. State Farm Mut. Auto. Ins. Co., No. 5:19-CV-04016-DS (E.D. Pa. Dec. 16, 2022 Strawbridge M.J.), the court granted a carrier’s Partial Motion for Summary Judgment in a UIM bad faith case.

In this case, the carrier moved for a partial summary judgment in the Plaintiff’s bad faith and breach of contract claims over allegations that the carrier failed to pay her full benefits under the UIM provisions of the policy.

Reviewing the record before it, the court found that the carrier had a reasonable basis for conducting an investigation, that the carrier acted reasonably throughout the investigation, and that the carrier had a reasonable basis for denying full benefits based upon the results of that investigation.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 5, 2023).

Tuesday, January 24, 2023




Court Rejects Argument That Motion For Summary Judgment Is Premature Where Ample Time For Discovery Had Passed

In the case of Connell v. Zheng, No. 1696 of 2017 G.D. (C.P. Fay. Co. Aug. 15, 2022 Cordaro, J.), the court addressed a summary judgment motion in a food poisoning case filed against a Chinese restaurant.

According to the Opinion, the case involved the death of the Plaintiff’s decedent from complications of an infection caused by a bacteria typically found in shell fish that can be transmitted to humans through consumption of raw or undercooked shell fish. The Plaintiff was suing a Chinese restaurant and others involved for the injuries claimed.

The Motion for Summary Judgment at issue in this case was filed by an Additional Defendant relative to claims asserted by an original Defendant in a Joinder Complaint.

Of note, the original Defendants opposed the motion, in part, on the basis that discovery was still ongoing and that the Motion for Summary Judgment was, therefore, premature.

The court noted that, while an adverse party must be given adequate time to develop the case and that a Motion for Summary Judgment will be found to be premature if filed before the adverse party has completed discovery relevant to the motion in question, “the discovery period cannot extend indefinitely; parties must conduct discovery in a timely way and proceed with due diligence.”  See Op. at XI. [citations omitted].

Referring to the local rules of court, the judge in this matter ruled that ample time had been provided for the completion of relevant discovery. It was also noted that no party had moved for any different deadlines for the completion of discovery. It was additionally indicated by the court that the party opposing the Motion for Summary Judgment had not moved to compel any discovery.

As such, the court found that the parties did have adequate time to prepare and pursue relevant discovery. As such, the court deemed that discovery was complete relative to the motion in question.

In the end, the court found that the Defendants had not brought forward any evidence to support the facts essential to their cause of action against the Additional Defendants. As such, the court entered summary judgment in favor of the Additional Defendant.

Also notable in this decision is the court’s indication that non-binding case law can certainly be considered for its persuasive value.

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

Source: “Case Summaries.” By Timothy L. Clawges PBA News (December 2022).

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

Summary Judgment Granted for Defendant Entity Relative to Negligent Acts by Former Employee of the Defendant

In the case of Doe v. Hand & Stone Franchise Corp., Aug. Term 2019, No. 04964 (C.P. Phila. Co. Sept. 7, 2022 Foglietta, J.), the trial court issued a Rule 1925 Opinion recommending that the Superior Court affirm its Order granting the Defendant’s Motion for Summary Judgment in a case involving alleged sexual assaults by an employee of the franchise.

According to the Opinion, the allegation was that the employee allegedly assaulted three (3) Jane Doe Plaintiffs on separate occasions at his own personal massage business. The court noted that there was no evidence that the alleged assaults occurred at any Hand & Stone franchise. It was also noted that the alleged assailant was not employed by Hand & Stone when the assaults allegedly occurred.

The Defendant moved for summary judgment after finding that Defendants’ general duty of care could not be extended to find that the Defendant's alleged failure to report that a former employee was an alleged sexual predator to the authorities because there was no special relationship between the employer and the Plaintiffs, who were allegedly the predator’s future alleged victims.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 3, 2023).

Monday, January 23, 2023

Volunteer as a Mock Trial Juror and Reap The Benefits of Doing So

The local District High School Mock Trial Competitions are set to commence on January 31, 2023.  Hoping you might please consider serving as a juror or a judge for the competitions which will be going back to live and in-person this year.  The competitions typically start at 6 p.m.

Here is a LINK to my previous article from the Pennsylvania Lawyer magazine that lists the many ways that attorneys can benefit from their participation in the PBA's High School Mock Trial competition as a volunteer Juror or as an Attorney Advisor to a local high school.

Hoping you might please consider volunteering to serve as a Juror and thereby reap the benefits of this participation. 

In these early rounds, more jurors are needed to fill the jury boxes so as to give these students a good sense of a jury trial.  Please do not rely on the thought that others will sign up to volunteer and fill the jury bosxes -- that is not the case as the Mock Trial program here in Lackawanna County and around the Commonwealth of Pennsylvania continually struggles to secure attorney volunteers for the competitions each week.

Please consider registering to volunteer. to help out this excellent program for local high school students who may be considering a career in the law.

And thank you to those attorneys who volunteer year in and year out!



Thursday, January 19, 2023

Motions For Sanctions Are Not Designed to Test The Veracity of a Party's Discovery Responses

In the case of Morel v. Patt, No. 2021-C-0506 (C.P. Leh. Co. July 17, 2022 Caffrey, J.), the court found that the court granted in part and denied in part a Defendant’s Motion for Sanctions raising various alleged discovery violations by a Plaintiff.

In its decisions, the court found in at least one instance the Plaintiff failed to make a good faith effort to identify her treatment providers and to produce related treatment records during the course of discovery.  

As such, the court found that the Defendants were entitled to recover attorney’s fees and expenses incurred in the effort to secure such information.

Otherwise, the Court found that sanctions were not warranted on other claims of discovery violations asserted by the defense.  In this regard, the court noted that the rules of discovery are not designed to allow a motion for sanctions to be utilized to test the veracity of a party's claims of a lack of information or documentation to produce in discovery.  Rather, the rules are designed to compel that parties make good faith efforts to comply with the requirements of discovery.    

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 13, 2022).

Source of image:  Photo by Etkaterina Bolovtsova on www.pexels.com.

Wednesday, January 18, 2023

Summary Judgment Granted in Favor of Carrier in Auto Accident First Party Benefits Case Regarding Issues With an IME

In the case of Loughery v. Mid-Century Ins. Co., No. 2:-19-CV-00383-WSH (W.D. Pa. Dec. 20, 2022 Hardy J.), the court addressed cross Motion for Summary Judgment on a Plaintiff’s claim for statutory bad faith alleging that a Defendant carrier requested an independent medical examination in an auto accident first party benefits case without first obtaining a court order and without good cause.

In denying the Plaintiff’s Motion for Summary Judgment, the court found that the Plaintiff did not show that the Defendant carrier acted unreasonably and in bad faith in failing to pay on the claims presented as there was a split of opinion in the courts as to the validity of the IME clause at issue.

The court also noted that the Defendant carrier’s interpretation of the provision was in accordance with the interpretation of the law as expressed by some of those courts.

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

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

Tuesday, January 17, 2023

Court Grants Preliminary Objections Regarding Jurisdiction Over Foreign Corporation

In the case of Terry v. Aesculap Implant Sys., No. 2018-C-1938 (C.P. Leh. Co. Aug. 8, 2022 Caffrey, J.), the court granted a foreign Defendant’s Motion to Dismiss based upon lack of personal jurisdiction on the basis that the court lacked both general and specific jurisdiction over the Defendant.

This matter arose out of claims by a number of Plaintiffs alleging that a knee implant device had been negligently designed and manufactured by a German company.  According to the Opinion, the knee surgeries at issue actually took place in the State of Texas.

As to general jurisdiction, the court found that the jurisdiction requirements were not met under 42 Pa. C.S.A. §5301(a)(1).  Under that statute, a court in Pennsylvania may exercise general jurisdiction over an individual non-resident Defendant when that Defendant is either present in Pennsylvania when process is served or domicile in Pennsylvania at the time when process is served, or where that Defendant consents to the jurisdiction of the court. Neither of these scenarios were implicated under the facts of this case.

With regards to the issue of specific jurisdiction, the court found that the Defendant lacked sufficient minimum contacts within the State of Pennsylvania.

In the end, the court granted the Preliminary Objections and dismissed a Joinder Complaint for lack of personal jurisdiction.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 13, 2022).

Monday, January 16, 2023

Court Finds That Plaintiff Stated Valid Cause of Action For Negligence Against Adults For Serving Alcohol To Minor in a Fatality Case

In the case of Sheik v. Morgan, No. 10244 of 2022 C.A. (C.P. Lawr. Co. Nov. 30, 2022 Motto, P.J.), the court overruled a Defendant’s Preliminary Objections in part in a case in which the Plaintiffs allege negligence against adult Defendants for allowing or encouraging underage drinking in their homes.

According to the Opinion, the case arose out of an event during which the Plaintiff’s child spent the night at a friend’s house at which she was allegedly allowed to consume alcohol at that home and two (2) other homes that were visited during the course of the evening.  While the minor was at one of the residences, the minor, in an allegedly intoxicated state, allegedly attempted to take steps leading from a garage to a basement when she allegedly fell and allegedly suffered injuries to her head. The minor tragically died from her injuries approximately six (6) days later.

The court found that the facts alleged in the Plaintiff’s Complaint were sufficient to establish a legally cognizable claim for negligence as adults owe a duty of care to minor guests in their home and the adults in this matter allegedly breached that duty by serving alcoholic beverages to minors in any event.

Anyone wishing to review a copy of this decision, which provides a thorough overview of the current status of the law relative to the service of alcohol by adults to minors, may click this LINK.

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


Nursing Home Defendant Found To Have Waived Arbitration By Participating in Lawsuit Proceedings

In the case of Watson v. The Terrace at Chestnut Hill, Sept. Term 2020, No. 00101 (C.P. Phila. Co. Sept. 21, 2022 Shreeves-Johns, J.), the court addressed a Motion to Compel Arbitration in a nursing home case.

The court denied the nursing home’s Motion to Compel Arbitration given that the injured party was found to have waived their right to the arbitration agreement by engaging in the judicial process.

In this regard, the Plaintiffs filed a negligence lawsuit. Approximately nine (9) months after receiving the Complaint, the Defendants filed a Motion to Compel Arbitration, arguing that the arbitration clause in the contract between the parties mandated arbitration.

The court denied the motion on the grounds that the Defendant had waived its right to arbitration by engaging in a judicial process.

In so ruling, the court applied five (5) factors including whether the parties (1) failed to raise the issue of arbitration promptly, (2) engaged in discovery in the litigation, (3) filed pre-trial motions that do not raise the issue of arbitration, (4) waited for adverse rulings on pre-trial motions before asserting arbitration, or (5) waited until the case is ready for trial before a certain arbitration.

In this case, the court faulted the Defendant for not raising the issue of arbitration immediately but waiting until nine (9) months into the litigation, during which time the parties engaged in discovery. The court additionally found that the Defendant’s assertion that the reason for the delay, that is, that the Defendant was simply unaware of the arbitration agreement, was unavailing.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 3, 2023).

Source of image:  Photo by Eduardo Barrios on www.pexels.com.


Hoping you might please consider registering to serve as a Mock Trial juror.  Many jurors are needed for the early rounds.  The Mock Trials will take place in the Federal Courthouse and State Courthouse in Scranton and typically run from about 6 pm to 8:30 pm. 

Friday, January 13, 2023

Federal Court Rules that Contributory Negligence Defense Cannot Be Utilized in a Strict Liability Case

In the Cote v. Schnell Industries, No. 4:18-CV-01440 (M.D. Pa. Nov. 8, 2022 Brann, J.), the court granted in part and denied in part Motions In Limine filed by both the Plaintiff and the Defendant in this strict products liability claim.

More specifically, the court excluded evidence of the Plaintiff’s contributory negligence, recklessness, or assumption of the risk where the product manufacturer Defendant could not show that the alleged product defects contributed in no way whatsoever to the accident and that the victim’s actions were therefore causally connected.

In this regard, Judge Brann noted that a products liability Defendant is not permitted to use contributory negligence concepts to excuse a product's defect or reduce recovery by comparing the fault of the parties in a strict liability case.  The exception is where the accident at issue was solely caused by a Plaintiff's negligence, which was not the case here.  

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 13, 2022).

Wednesday, January 11, 2023

Pennsylvania Superior Court Rules on Issue of Proper Venue in Context of Parent-Subsidiary Entities in Med Mal Case

In the case of Estate of Rita Quigley v. Pottstown Hospital, No. 2022 Pa.Super. 205 (Pa. Super. Dec. 1, 2022 Lazarus, J., Murray, J., McCaffery, J.) (Op. by Lazarus, J.), the Pennsylvania Superior Court ruled that a Montgomery County hospital may be sued in Philadelphia County because its parent company regularly conducted business in the City of Philadelphia.   

According to commentators, little case law exists on this issue of proper venue in the context of parent-subsidiary relationships. Those commentators note that the limited guidance that did exist up to the time of this decision tended to favor the medical Defendants.   

In this case, the Pennsylvania Superior Court reasoned that the parent company, Tower Health, which owned the Defendant, Pottstown hospital, actively controlled subsidiaries located in the City of Philadelphia.  The court found that that relationship was more than a sufficient reason for the lawsuit to be allowed to remain in Philadelphia.   

According to the Pennsylvania Law Weekly article by Alezza Furman cited below, some commentators view this decision as creating a framework for interpreting the relationship between parent and subsidiary companies and the impact of the same on proper venue for civil litigation matters involving such Defendants.   Some commentators believe that this ruling now hinders the ability of parent companies to distance themselves from the action taken by their subsidiaries and that this decision will assist Plaintiffs in forum disputes.  

Note that, on January 1, 2023 a new Pennsylvania Rules of Civil Procedure went into effect that serves to expand the scope of where medical malpractice claims may be filed.   Under that Pennsylvania-friendly rule change issued by the Pennsylvania Supreme Court, Plaintiffs will now be allowed to sue medical providers in any county where the medical provider regularly conducts business or has significant contacts.   

This new rule reverses a 20 year old rule that limited medical malpractice suits to counties where the Plaintiff received the treatment at issue.   

Anyone wishing to review the Quigley decision may click this LINK.

Source:  Article: “Superior Court Sends Lawsuit Against Suburban Hospital Back To Philadelphia,” by Aleeza Furman.  Pennsylvania Law Weekly (Dec. 13, 2022).

Personal Jurisdiction Over Foreign Corporation Found to Exist Based on Actions of the Distributor for the Corporation

In the products liability case of Merino v. Repak, B.V., No. 135 MDA 2022 (Pa. Super. Dec. 6, 2022 Bowes, J., McCaffery, J., and Stevens, P.J.E.) (Op. by McCaffery, J.), a Defendant company operating out of the Netherlands filed an appeal from a trial court Order overruling its Preliminary Objection to personal jurisdiction. The Superior Court affirmed the trial court’s Order.

In so ruling, the Superior Court rejected the Defendant’s arguments that the trial court had erred and abused its discretion when the trial court exercised personal jurisdiction over the foreign company based upon either the Defendant’s independent contacts with the Commonwealth of Pennsylvania or its relationship with a Co-Defendant company.

The Superior Court noted that the trial court properly exercised specific personal jurisdiction over the foreign manufacturer with no minimum contacts of its own within the forum. The court found that, based upon the actions and contacts of the foreign manufacturer’s exclusive distributor, with whom the manufacturer had a close agency relationship, jurisdiction over the foreign manufacturer was warranted.

The Superior Court found that the Co-Defendant distributor had acted as an agent for the foreign manufacturer by selling the manufacturers products to customers in the Commonwealth of Pennsylvania.

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

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

Source of image:  Photo by Elena Mozhvilo at www.unsplash.com.

Superior Court Analyzes Discoverability of Peer Review Documents in Medical Malpractice Case

In the case of Sanders v. Children’s Hosp. of Phila., No. 646 EDA 2021 (Pa. Super. Nov. 22, 2022 Bowes, J., McLaughlin, J., and Stabile, J.) (Op. by Bowes, J.) (McLaughlin, J., concurring/dissenting), the Pennsylvania Superior Court affirmed in part and reversed in part a trial court’s decision relative to a Defendant hospital’s challenges on alleged privileged documents in a Plaintiff’s medical malpractice wrongful death and survival action. The appellate court found that most of the documents and reports at issue were protected from discovery by the Peer Review Protection Act or the Medical Care Availability and Reduction of Error Act (MCARE Act).

According to the Opinion, the court involved twenty three (23) infants at the hospital who had allegedly contracted an adeno-virus in the hospital’s NICU. Testing allegedly revealed the presence of the virus on equipment used for an eye exam and the virus was allegedly transmitted to patients by doctors touching the equipment and then touching the patients.

A doctor who led the investigation into the matter reported to the Patient Safety Committee and held “safety huddles” using powerpoint presentations with members of the Infection Prevention and Control Department and the NICU doctors and nurses. Several conferences were also held by the Defendant medical providers as a result of which a root cause analysis report was created. The investigating doctor also published an abstract and an article about the method of transmission.

The Plaintiff sought documents at issue in discovery.

On appeal, the court ruled that certain documents were admissible and certain documents were privileged. In the opinion, the court provided a nice overview of the application of the Peer Review Protection Act and the Medical Care Availability and Reduction of Error Act.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 13, 2022).  I also send thanks to Attorney Peter Faben of Lancaster, PA for bringing this case to my attention as well.

UPDATE:  In more recent developments in this matter, the Plaintiff filed a Motion for re-argument  en banc, which was granted, causing the above initial decision to be withdrawn.  Thereafter, the case was resolved prior to the on en banc arguments.  As such, the case was concluded without any decision from the full court.  

Monday, January 9, 2023

Federal Court Finds that Relation Back Doctrine Does Not Save Party From Statute of Limitations Argument

In the case of Coleman v. W. Oilfields Supply Co., No. 4:21-CV-00090 (M.D. Pa. Dec. 6, 2022 Brann, J.), the court addressed statute of limitations issues in a trip and fall matter.

In this case, the Plaintiff attempted to secure leave to amend the Complaint to add another Defendant who was allegedly responsible for the condition that allegedly caused the Plaintiff’s trip and fall. That Defendant moved to dismiss the matter filed against it as being barred by the statute of limitations.
Chief Judge Matthew W. Brann 
M.D. Pa.

In response, the Plaintiffs argued that their claims against that new Defendant related back to the claims noted in the original timely filed Complaint.

Judge Brann granted the Motion to Dismiss and agreed with the new Defendant that the Plaintiffs could not rely upon the relation-back doctrine where there was no evidence that the Defendant in question had notice of the action within a 120 days of the date that the action was filed. Nor was there any evidence that the new Defendants should have known that the action would have been filed against it but for a mistake in identity.

The court otherwise found that the new Defendant was not so closely related to the original parties that had been given notice of the action such that notice of the lawsuit could be imputed to the new Defendant through the filing of the original Complaint against the original Defendants.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 22, 2022).

Source of top image:  Photo by Altem Maltsev on www.pexels.com.

Sunday, January 8, 2023

Fly Eagles Fly

In the case of Philadelphia Eagles, LP v. Factory Mut. Ins. Co., No. 2:21-CV-01776-MMB (E.D. Pa. Dec. 15, 2022 Baylson J.), the court denied a carrier’s Motion to Dismiss in a case involving the Philadelphia Eagles seeking coverage from their carriers for financial losses associated with the COVID-19 pandemic and governmental closure orders.  The Eagles had a $1 Billion Dollar policy in this regard.

The carrier moved to dismiss and asserted exclusions in the policies.

The court ruled that, due to the unsettled status of Pennsylvania law on the issues presented, it was appropriate to deny the Motion to Dismiss and to allow discovery limited to the exchange of pertinent documents.

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 (Jan. 5, 2023).

Thursday, January 5, 2023

Issues of Fact Preclude Entry of Summary Judgment in Case of Slip and Fall Sustained by Ice Skater

In the case of Murphy v. Pines, No. 3:20-CV-00320 (M.D. Pa. Nov. 21, 2022 Saporito, M.J.), the court denied summary judgment after finding genuine issues of material fact existed on whether the Plaintiff, an experienced skater, was entitled to a recovery when she slipped and fell while skating on ice.  The court noted that the Plaintiff had never before skated on synthetic ice.   

In his Opinion, Judge Joseph F. Saporito, Jr., noted that, while falling while ice skating is an inherent risk of that activity, the risks of alleged damaged surfaces are not.  The court found that the issue of assumption of the risk was for the jury to decide under the conflicting facts presented in this case.   

The court also addressed the “no duty” rule.  While the court noted that the “no duty” rule precludes liability for injuries from risk that are common, frequent, expected, and inherent in a sporting activity, and while that rule can apply when the assumption of the risk doctrine does not, the court found that issues of fact in this case prevented the entry of summary judgment in favor of the Defendant.

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

Judge Saporito additionally addressed separate arguments raised relative to the scope and impact of the release that was signed by the Plaintiff prior to engaging in the ice skating activity at the facility.  

The court noted that the release language was boilerplate and was only located on a rental receipt.  The language was not conspicuous and was never explained to the Plaintiff or even brought to the Plaintiff’s attention.   As such, given these issues, the court ruled that the issue of whether the Release was effective to preclude a recovery would be left for the jury’s consideration. 

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 top image: Photo by Efrem Efre on www.pexels.com.

Wednesday, January 4, 2023

Third Circuit: Unless An Automobile Insurance Carrier Issues a New Policy, No New UM/UIM Sign Down Forms Are Required

In the case of Geist v. State Farm Mut. Auto. Ins. Co., 49 F.4th 861 (3rd Cir. Sept. 29, 2022 Randel, C.J.), the Third Circuit Court of Appeals addressed the issue of when an automobile insurance carrier may be required to secure updated UM/UIM sign down forms.

In this matter, when the insured had purchased the State Farm policy initially, two (2) vehicles were insured under the policy and the necessary forms were executed. Thereafter, the insured added a third vehicle. At that point in time, the insured did not execute a request for UIM coverage limits below the bodily injury coverage limits.

Thereafter, an insured under the policy was involved in a motor vehicle accident. After settling the tort claim against the Defendant driver, that Plaintiff turned to State Farm for UIM coverage. A dispute arose over the amount of UIM limits available.

The Plaintiff asserted that she should be provided with higher limits because State Farm did not secure a sign down form when another vehicle had been added to the policy. When State Farm disagreed, litigation ensued and eventually resulted in this decision.

The Plaintiff asserted that she was owed higher coverage because State Farm had not followed the requirements of 75 Pa. C.S.A. §1731 and 1734 relative to the forms at issue.

The Third Circuit Court of Appeals, after reviewing the existing case law, ruled that no events in the years prior to the subject motor vehicle accident triggered the obligations under §1731 and 1734 because State Farm had never issued a new policy to the insured. As such, the court found that State Farm was not obligated to seek a new written election for lower UIM coverage limits under the policy.

Rather, the court ruled that the Pennsylvania Motor Vehicle Financial Responsibility Law only required carriers to seek elections of lower UIM coverage limits only when the carriers issue policies. State Farm was found to have satisfied their duties under the law when the secured the forms when the insured had executed the requisite forms when the policy was initially issued.

The court more specifically noted that both §1731 and 1734 expressly state that the requirements contained in those statutes apply, under §1731 when an insurance company is involved in the “delivery or issuance” of a “policy,” and §1734 applied when a carrier “issues a policy.”

The court in Geist went on to note that, once the carrier meets its obligations to secure the UIM sign down forms on a particular policy, the insurance company need not do anymore to fulfill its obligations under §1731 and 1734 during the life of that particular insurance policy.

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

Source of image:  Photo by Olia Danilvoich on www.pexels.com.

Tuesday, January 3, 2023

Federal Middle District Court Addresses Jurisdiction Over Accident That Occurred in Virginia

In the case of Grady v. Rothwell, No. 4:22-CV0-00428 (M.D. Pa. Nov. 8, 2022 Brann, J.), the court addressed issues of personal jurisdiction in a trucking accident case.

According to the Opinion, the Plaintiff’s decedent was killed in a motor vehicle accident that occurred in Virginia.

The Defendant tractor trailer driver was not a resident of Pennsylvania, nor was La-Z-Boy Logistics, which was the company for which the driver was driving.

Judge Brann found that the court lacked personal jurisdiction as there was no evidence or allegation that the corporate Defendant was “at home” in Pennsylvania. Personal jurisdiction was also not found due to the fact that the subject motor vehicle accident occurred outside of Pennsylvania.

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

Judge Brann ruled that the fact that La-Z-Boy did business nationwide, including Pennsylvania, was insufficient, in and of itself, to confer general personal jurisdiction over that party, as there was no allegation that the company had any locations or employees in Pennsylvania.

The court additionally found that there was no basis to assert specific personal jurisdiction as the underlying motor vehicle accident occurred in the State of Virginia.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 1, 2022).

Source of top image:  photo by Josiah Farrow from www.pexels.com.