Tuesday, February 28, 2023

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


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

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

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

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 7, 2023).

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

Monday, February 27, 2023

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



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

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

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

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

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

4. The burden on the Defendants;

5. The interest of the court; and,

6. The public interests

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

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

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

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

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

Friday, February 24, 2023

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


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

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

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

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


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

Thursday, February 23, 2023

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Judge Nealon of Lackawanna County Again Upholds Right of Plaintiffs To Plead Recklessness in Every Case


In the case of Brooks v. Griffy, No. 22-CV-3250 (C.P. Lacka. Co. Feb. 3, 2023 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas continued to trend in this county of overruling Preliminary Objections filed by Defendants against claims of recklessness in personal injury lawsuits, only this time, the court had the additional support to rely upon of the recent Pennsylvania Superior Court decision of Monroe v. CBH20, LP, 286 A.3d 785 (Pa. Super. 2022) (en banc).

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon ruled that, based upon an application of Pa. R.C.P. 1019(b), the separate Superior Court in Archibald v. Kimble, and the more recent Superior Court decision in Monroe, that the Plaintiff’s general allegations of wanton, willful, and reckless conduct, along with the Plaintiff’s related demand for punitive damages, was not subject to a dismissal under Preliminary Objections filed pursuant to Pa. R.C.P. 1028(a)(4).

However, the court did note that a claim for punitive damages should not be set out as a separate Count in a Complaint as it is an element of damages and not a separate cause of action.  As such, the court dismissed a Count in the Plaintiff’s Complaint, in which punitive damages were separately pled as a separate Count, as being procedurally improper. The court allowed the Plaintiff to file an Amended Complaint to otherwise properly list the punitive damages claim in the Complaint.

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

Wednesday, February 22, 2023

Third Circuit Court of Appeals Affirms Denials of Coverage in Covid-19 Business Loss Matters



In the case of Wilson v. USI Ins. Serv., LLC, No. 20-3124 (3d Cir. Jan. 6, 2023) (Op. by Chagres, C.J.), the court, in a consolidated appeal, found that the district courts properly found for the insurance companies in Plaintiff businesses’ actions for coverage for COVID-19 business losses under commercial property insurance policies.

The rationale behind the decisions, in part, was that the Plaintiffs did not suffer a “physical loss of or damage to” property.

Because the Court made the above initial finding it felt that it did not need to address the arguments raised by the carriers relative to any Virus Exclusions contained in the policies.    

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 24, 2023).

Monday, February 20, 2023

Court Addresses Admissibility of Allegedly Cumulative Expert Testimony in Medical Malpractice Case




In the case of Evans v. Lavallee, No. CV 20-00879 (C.P. Lyc. Co. 2022 Carlucci, J.), the court granted in part and denied in part a Plaintiff’s Motion In Limine relative to the testimony of defense medical expert in a medical malpractice case.

According to the Opinion, this matter arose out of an accident during which the Plaintiff sustained burns when oxygen was allegedly caused to ignite, resulting in burns to the Plaintiff during the course of a surgery.    

The Plaintiffs argued that the expert testimony of the expert in question should be precluded because the expert report was provided after the deadline for experts had expired, because the expert was not of an appropriate specialty, and because the expert testimony would be cumulative or duplicative with the testimony of other defense experts.

The court ruled that, in the event the expert is found to be competent at trial, the expert would be allowed to testify in his field of plastic surgery. 

However, the court noted that, unless the Defendants established a need at trial for testimony from this plastic surgeon expert on the separate subject of the operating room standard of care for an anesthesiologist, the plastic surgeon expert testimony would be precluded as cumulative given that the Defendants had other experts to testify in that regard.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 7, 2023).


Friday, February 17, 2023

Punitive Damages Claims Scratched Out of Bedbugs Case


In the case of Skillman v. Patel, No. CV-22-00444 (C.P. Lyc. Co. Dec. 19, 2022 Linhardt, J.), Judge Eric R. Linhardt of the Lycoming Court of Common Pleas sustained a Defendant’s Preliminary Objections filed against punitive damages claims in a case against an owner of a motel under a claim of infestation of the Plaintiff’s motel room with bed bugs. According to the Opinion, the Plaintiff had stayed at the hotel for twelve (12) days and began experiencing symptoms from the alleged issue with bed bugs.

Relative to the punitive damages claims, the Defendant asserted that the facts pled by the Plaintiff in the Complaint only rose to the level of negligence, which the Defendant asserted was insufficient to support a claim for punitive damages.

While the Plaintiff agreed that a plaintiff must allege evidence that goes beyond a mere showing of negligence in order to proceed on a punitive damages claim, the Plaintiff asserted that trial courts should generally not dismiss claims for punitive damages at the Preliminary Objections stage, but rather, allow for discovery on the issues presented.

The trial court emphasized that Pennsylvania is a fact-pleading state and that, therefore, in order to proceed on a punitive damages claims, a plaintiff must aver that a defendant’s conduct was outrageous or was intentional, willful, wanton, or reckless.  Judge Linhardt noted that, where such allegations are missing, a Complaint is legally insufficient relative to a claim for punitive damages.

The court rejected the Plaintiff’s argument that punitive damages claims should generally be allowed to proceed into discovery. 

The court noted that the applicable pleading requirements are set forth in Pa. R.C.P. 1017-1034 of the Pennsylvania Rules of Civil Procedure. Judge Linhardt stated that, if it were improper for a court to assess the adequacy of punitive damages claims prior to discovery, then Pennsylvania’s pleading requirements set forth in the above rules would effectively cease to apply to such claims. 

The court stated the Plaintiff had provided no legal authority in support of its position that punitive damages claims should not be assessed at the pleadings stage. 

Turning the merits of the argument, the court noted that the Plaintiff did not plead facts sufficient to support any conclusion that the Defendants’ alleged conduct went beyond mere negligence. Finding that no outrageous conduct was asserted by the Plaintiff in the Complaint, the court sustained the Defendant's demurrer to the punitive damages claims.

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


I send thanks to Attorney Gerald Connor of the Scranton, Pennsylvania office of the Margolis Edelstein law firm for bringing this case my attention.

Source of image:  Photo by Zulian Firmansyah on www.unsplash.com.

Wednesday, February 15, 2023

Pennsylvania Supreme Court Now Says That Household Exclusions Can Be Valid and Enforceable

In the case of Erie Ins. Exchange v. Mione, No. 89 MAP 2021 (Pa. Feb. 15, 2023) (Op. by Wecht, J.), the court addressed the enforceability of two (2) household vehicle exclusions in a pair of automobile insurance policies.  In the end, whereas the Pennsylvania Supreme Court previously ruled that household exclusions are unenforceable, that Court has now held that household exclusions do remain enforceable under Pennsylvania law in certain circumstances.

In its previous decision in the case of Gallagher, the Pennsylvania Supreme Court wrote “we hold that the household vehicle exclusion violates the MVFRL; therefore, these exclusions are unenforceable as a matter of law.”  Gallagher v. GEICO Indem. Co., 650 Pa. 600, 613, 201 A.3d 131, 138 (2019).


According to the Pennsylvania Supreme Court in this Mione decision, the courts below had held that the household exclusions were valid and enforceable and had cited to the Supreme Court’s previous decision in the case of Eichelman v. Nationwide Ins. Co., 711 A.2d 1006 (Pa. 1998).   


In this Mione case, the insureds contended that the lower courts had erred in applying Eichelman and argued that the Pennsylvania Supreme Court sub silentio overruled that decision in the Pennsylvania Supreme Court’s decision in Gallagher v. Geico, 201 A.3d 131 (Pa. 2019).   


Although the Pennsylvania Supreme Court in the previous case of Gallagher v. Geico, and again in the case of Donovan v. State Farm, attempted to eradicate the household exclusion across the board, in this decision of Erie Ins. Exchange v. Mione, the Pennsylvania Supreme Court rejected the insured’s arguments, distinguished its previous decision in Gallagher v. Geico and affirmed the lower court decisions that the household exclusions were valid and enforceable. 


In this Erie Ins. Exchange v. Mione case, Erie had asserted that the Gallagher decision as factually distinguishable because the insureds had waived UM/UIM coverage on the insured’s motorcycle policy, whereas the insured in Gallagher did not waive coverage.


The Pennsylvania Supreme Court in this Mione case accepted that argument and noted that the insureds in this case were not attempting to stack anything between the various automobile insurance policies available.   


The Pennsylvania Supreme Court in Mione noted that the insureds had not yet received any UIM benefits but that the insured’s theory was that one or both of the household policies that possessed could provide them with UIM coverage in the first instance as opposed to in conjunction with another policy.   The Pennsylvania Supreme Court found that the “problem” with that argument is that the policies at issue had valid household exclusions which, under the facts of this case, the Pennsylvania Supreme Court found, in a 6-0 decision, did not conflict with the MVFRL.   


In other words, unlike as was found in the Gallagher decision, the household exclusions in this Mione case did not act as de facto waiver of stacking.   In other words, because the insureds in this case were not attempting to stack UIM benefits from the other household policies on top of the UIM benefits from their motorcycle policy, the rules for waiving stacking in writing found under 75 Pa. C.S.A. §1738, which were the basis for the court’s decision in Gallagher, were not implicated.  See Op. at 9-10.   


Although, as confirmed above, the Pennsylvania Supreme Court decision in Gallagher attempted to phrase that decision as eradicating the household exclusion across the board and never limited the decision to the facts before the Court in that matter, in this Mione decision, Justice Wecht noted that the Court “reiterate[s] today that the holding in Gallagher was based upon the unique facts before [the court] in that case, and that the decision there should be construed narrowly.”  See Op. at 10.   [Bracket inserted here].


Although the Pennsylvania Supreme Court stated otherwise in the Gallagher decision, Justice Wecht also stated in the Mione decision that the Pennsylvania Supreme Court “continue[s] to reject the view that household vehicle exclusions are ipso facto unenforceable.”  See Op. at 12.   


In the end, the Pennsylvania Supreme Court in Mione ultimately concluded that the lower courts correctly distinguished the Gallagher decision from the facts in this case and correctly enforced the household exclusions contained in the insured’s automobile insurance policies.   


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


Source of image: Photo by Andrea Piacquadio on www.pexels.com.


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Monday, February 13, 2023

Issues of Fact Preclude Summary Judgment In Uninsured Motorist Case on Question of Whether Hit And Run Accident Was Reported to Police


In the case of Smart v. Allstate Ins. Co., No. 2:21-CV-03910-WB (E.D. Pa. Jan. 12, 2023 Beetlestone, J.), the court denied the carrier’s Motion for Partial Summary Judgment relative to the Plaintiff’s breach of contract claims in this uninsured motorist hit and run accident case.

According to the Opinion, Allstate was seeking summary judgment on the grounds that the Plaintiff had not confirmed that he had notified both Allstate and the police about this hit and run accident immediately following the same.

According to the Opinion, while the Plaintiff and his attorney initially indicated that the accident was not reported to the police, thereafter, the Plaintiff clarified his response to indicate that the police were called immediately after the incident but did not respond.

The court denied the Motion for Partial Summary Judgment filed by the insurance company after finding that credibility issues relative to the Plaintiff rendered the questions presented to represent disputed issues to be decided by a jury.

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


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

Thursday, February 9, 2023

PLEASE CONSIDER VOLUNTEERING AS A MOCK TRIAL JUROR IN LACKAWANNA COUNTY COMPETITION

 



Issue of an Alleged Open and Obvious Danger in a Premises Liability Case Allowed to Proceed to Jury

In the case of Pusateri v. Wal-Mart East, LP, No. 21-1137 (W.D. Pa. Dec. 20, 2022 Kelly, M.J.), the court denied a Defendant store’s Motion for Summary Judgment in a trip and fall case.

According to the Opinion, the Plaintiff was shopping in a Wal-Mart store during which the Plaintiff walked four (4) times passed a partially empty black pallet that held large screen televisions. The Plaintiff alleged that she did not remember the presence of the pallet during each pass, but conceded that nothing blocked her view of the pallet.

After her fourth pass, a store employee entered the aisle with a top stock shopping cart that was loaded.

In order to avoid the stock cart and permit it to pass, the Plaintiff backed up and tripped on the base of the protruding pallet that was behind her. The Plaintiff alleged injuries as a result.

The Federal Magistrate Judge that decided this case noted that, while a store owner owes no duty to invitees for an obvious danger that is avoidable by the exercise of ordinary care, the court found that the issue of whether the hazard in question was open and obvious is a question for the jury. In this case, the court also noted that the Plaintiff may have been distracted by the Defendant employee’s actions.

Given the issues of fact presented, the court denied the Motion for Summary Judgment.

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.

Tuesday, February 7, 2023

Summary Judgment Denied In Case Where Plaintiff Injured by Falling Books in a Bookstore

In the case of McConn v. Dollar General, No. 2:CV-01177-MJH (W.D. Pa. Dec. 19, 2022 Horan, J.), the court denied summary judgment in a case in which the Plaintiff alleged personal injuries as a result of books falling on her at a Dollar General store. 

The Plaintiff alleged that she was attempting to remove a book entitled Duct Tape Mania from the center of a bookcase. 

The Plaintiff testified that the shelf was jammed with books and that, when she tugged on the book she wanted, the vertical rack at the end of the shelf became dislodged and books fell upon her, allegedly injuring her.

The Defendant filed a Motion for Summary Judgment asserting that the Plaintiff had not raised any issues of material fact on whether the store either created the condition that allegedly caused the jammed books on the bookshelf or that the store had prior notice of the condition.

The court denied summary judgment after finding that the Plaintiff had presented sufficient evidence such that a reasonable jury could find that Dollar General had either created the condition that allegedly resulted in jammed books on the bookshelf and/or that the Dollar General allegedly had notice of that condition.

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

Expert Precluded By Court Due to Lack of Sufficient Qualifications to Testify on the Issues Presented

In the case of McConn v. Dollar General Corporation, No. 2:-21-CV-01177-MJH (W.D. Pa. Dec. 19, 2022 Horan, J.), the court addressed a Defendant’s Motion under Daubert to preclude the opinion testimony of the Plaintiff’s purported retail safety expert in a case in which the Plaintiff was allegedly injured when a number of books allegedly fell upon her after she removed a jammed book from the bookshelf.

The court granted the F.R.E. 702 Motion in this case after finding that the Plaintiff’s expert lacked any relevant qualifications to testify as to issues of retail safety.

The court noted that the proposed expert of the Plaintiff had no academic background, no former training, and no retail work experience in the last fifty (50) years.

The court noted that the fact that the expert had reviewed the store’s manuals could not create expertise.

The court also noted that the expert failed to identify any industry standards with the shelving of books at a retail store. The “standards” referenced in the expert report were neither industry standards nor the Defendant store’s standards.

In the end, the court found that claimed experience by an expert does not make testimony admissible where the testimony lacks any independent indicia of reliability.

The court also noted that the bases that the expert cited for his opinion were contradicted by the facts of 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.

Friday, February 3, 2023

Superior Court Affirms Entry of Judgment Against a Negligent Spoliation of Evidence Claim Cloaked As A Promissory Estoppel Claim

 In the case of Erie Ins. Exch. v. United Services Auto. Assoc., 2022 Pa. Super. 207 (Pa. Super. Dec. 6, 2022 Olson, J., Colins, J., Dubow, J.) (Op. by Colins, J.), the Pennsylvania Superior Court ruled that there is no recognized cause of action in Pennsylvania for negligent spoliation of evidence.

In this matter, in which involved fire damage claims and the right to conduct an investigation as to the cause of a fire, the court granted summary judgment for the Defendant on a promissory estoppel claim which claim was brought in an effort to recover damages for the negligent spoliation based upon an agreement to indefinitely preserve evidence.   


The Superior Court affirmed the trial court's finding that the promissory estoppel claim was essentially disguised as a negligent spoliation of evidence cause of action. Since such claims are not recognized in Pennsylvania, the Court affirmed the entry of judgment against this promissory estoppel claim.


While a Link to the decision was previously provided in this post, this post was updated once that Opinion was withdrawn by the Court in light of the fact that the case was moving on to an en banc consideration.


Source:  “Court Summaries.”  by Timothy L. Clawges in the Pennsylvania Bar News (Jan. 2, 2023).


UPDATE: This decision was withdrawn by the Superior Court under an Order dated February 9, 2023 when it granted a reargument en banc.


I send thanks to Attorney Brook T. Dirlam of the Pittsburgh, PA office of Thomas, Thomas & Hafer for letting me know this update.


Wednesday, February 1, 2023

LUZERNE COUNTY LOOKING FOR VOLUNTEERS TO SERVE AS A MOCK TRIAL JUROR



VOLUNTEERS NEEDED TO SERVE AS JURORS IN 
LUZERNE COUNTY

 

Court Rules That PennDOT May Not Release Medical Records Relied Upon By PennDOT to Decide Whether to Authorize an Indiviual to Be Licensed to Drive


In the case of Puricelli v. Com., Dept. of Transp., No. 42 M.D. 2022 (Pa. Cmwlth. Jan. 4, 2023) (Op. by Wallace, J.), the Commonwealth Court sustained Preliminary Objections filed by PennDOT in opposition to a matter involving a request by a Plaintiff injured in a motor vehicle accident case for the release of medical records PennDOT had obtained as part of the decision-making process of determining whether or not the Defendant driver should be authorized to be licensed in Pennsylvania to operate a motor vehicle.

According to the Opinion, the Defendant driver had secured an injury to his eye and the Plaintiff was attempting to determine if PennDOT had authorized the Defendant driver to be operating his vehicle at the time of the accident.

The court noted that, by statute, information received by the Department of Transportation for purposes of determining the competency of automobile drivers “shall be confidential and shall be used solely for the purpose of determining the qualifications of any person to drive a motor vehicle.” The statute additionally sets forth that such information cannot be “used as evidence in any civil or criminal trial.”

As such, the Commonwealth court ruled that the Plaintiff’s automobile accident victim was not permitted to obtain the medical records from PennDOT even though the Defendant driver had consented to the production of that information. The court noted that consent is not an exception to statutory mandates of confidentiality.

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.