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 (, which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at

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