Friday, June 30, 2023

Petition To Transfer Based on Doctrine of Forum Non Conveniens Granted


In the case of Mitchell v. Gentry, No. 22-CV-2951 (C.P. Lacka. Co. March 3, 2023 Nealon, J.), the court granted a Petition to Transfer Venue filed by the Defendants in a motor vehicle accident.

According to the Opinion, the Plaintiff was a Lycoming County resident who was injured in a Lycoming County accident.  The records also revealed to the court that all of the Plaintiff’s medical treatment occurred in Lycoming County.

The Defendant driver was a New York motorist and his employer was a company incorporated in the State of New York and which maintained its principal place of business in New York.

The New York Defendants filed a Preliminary Objection asserting improper venue in Lackawanna County since the Defendant motorist could not be served in Lackawanna County, given that the Defendant driver’s employer did not regularly conduct business in Lackawanna County, and given that the cause of the action arose in Lycoming County.

In the alternative, the Defendants filed a Petition to Transfer Venue to Lycoming County under Pa. R.C.P. 1006(d)(1) on the grounds that the litigation and trial of this matter in Lackawanna County would be oppressive to the parties and witnesses.

Based upon the totality of the circumstances, the court found that Lackawanna County was an oppressive forum and, as such, the court granted the Defendant’s Petition to Transfer the case to Lycoming County.

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

Wednesday, June 28, 2023

Pennsylvania Supreme Court Upholds Immunity of an Employer Where Plaintiff Claims Covered By Worker's Compensation


In the case of Franczyk v. Home Depot, Inc., No. 11 WAP 2022 (Pa. April 19, 2023) (Op. by Wecht, J.) (Todd, C.J, concurring), the court addressed immunity provided to employers in personal injury civil litigation matters given the employer’s exposure to worker’s compensation recoveries.

The Pennsylvania Supreme Court confirmed that the worker’s compensation system is a compromise that, in exchange for a no-fault insurance system, employers are granted immunity from tort liability for workplace injuries.

The court reiterated that, where worker’s compensation is available, such compensation is the exclusive remedy for an injured party against their employer.

The worker’s compensation statute precludes virtually any sort of negligence claim against the employer “on account” a physical injury that occurs in a workplace.

In this matter, the court found that a Plaintiff could not sue his employer for allegedly failing to investigate a dog bite that occurred at the place of employment and thereby obstructing the Plaintiff’s ability to bring a claim against the customer who owned the dog.

The court found that the plain language of the exclusivity clause under the Worker’s Compensation Act barred this action.  None of the exceptions were found to apply.

The court otherwise noted that employers have no general duty to protect and preserve the interests of their employees relative to a possible personal injury action.

Given that the Plaintiff in this matter was seeking a recovery of the same damages from the same injury that occurred in a workplace, the claim was found to be precluded from the Worker’s Compensation Act.

Anyone wishing to review a copy of this decision may click this LINK.  The Concurring Opinion by Chief Justice Todd can be viewed HERE.


I send thanks to Attorney James M. Beck of the Reed Smith law firm in Philadelphia for bringing this case to my attention.

Monday, June 26, 2023

Judge Nealon Give Complaint Drafting Tips


In the case of Dolinak v. State Farm Fire & Cas. Co., No. 2021-CV-1643 (C.P. Lacka. Co. June 5, 2023 Nealon J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the Rules of Civil Procedure regarding proper Complaint drafting in a case involving alleged weather-related damages allegedly sustained to the home of a State Farm insured.

Relative to the claims presented, the Plaintiff filed a Complaint against State Farm and State Farm filed Preliminary Objections stating that, based upon the allegations of the Complaint, it was not able to confirm exactly whether the Plaintiff was asserting simply a breach of contract claim and/or a bad faith claim.

Judge Nealon reviewed the pertinent Pennsylvania Rules of Civil Procedure, and the related case law, regarding Complaint drafting.

The court noted that Pa. R.C.P. 1020 provides that a Plaintiff may state in the Complaint more than one cause of action against the same Defendant and that such claims may be pled in the alternative.

However, under the related case law, a Plaintiff is required to present each claim in a self-sufficient separate count within the Complaint, which count is required to include allegations of facts in support of the particular claim asserted and the relief sought.

Here, the court noted that, even reviewing the allegations of Plaintiff’s Complaint as a whole, the Complaint did not provide State Farm with sufficient notice of the claims against which the carrier was required to defend.

As such, the court sustained the Preliminary Objections asserted by the Defendant but allowed the Plaintiff the right to file an Amended Complaint in which the Plaintiff was required to identify the claims asserted and the damages demanded in conformity with the Pennsylvania Rules of Civil Procedure.

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

Federal Court Finds That UIM Bad Faith Claim Was Plausibly Pled


In the case of Perhosky v. State Farm Mut. Auto. Ins. Co., No. 2:23-CV-00025 (W.D. Pa. May 4, 2023 Lenihan, J.), the court denied a Defendant’s carrier’s Motion to Dismiss a Plaintiff’s bad faith claim over the carrier’s alleged failure to pay UIM benefits after the Plaintiff was injured in a motor vehicle accident.

The court found that, based upon the pleadings in the Complaint, the Plaintiff had pled a plausible bad faith claim.

The court noted that the Plaintiff averred that the Defendant carrier failed to provide any explanation for its offer to settle the Plaintiff’s claim for $25,000.00. The Plaintiff also asserted that the carrier did not conduct any investigation and did not refer the Plaintiff to an independent medical examination.

In so ruling, the court rejected the Defendant carrier’s arguments that the Plaintiff did not take into account that the Defendant had factored into its evaluation and liability credit of $100,000.00 from the Plaintiff’s prior settlement with other insurance carriers. 

The court also rejected the Defendant’s argument that the bad faith claim was simply based upon the Plaintiff’s disagreement with the carrier’s evaluation and that the carrier had not yet completed its investigation.

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


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

Friday, June 23, 2023

Summary Judgment Granted In Slip and Fall Case Where Plaintiff's Evidence Was Deficient


In the case of McClure v. Love’s Travel Stops, No. 1:21-CV-00334-YK (M.D. Pa. May 23, 2023 Kane, J.), the court granted the Defendant’s Motion for Summary Judgment in a slip and fall case.

According to the Opinion, a tractor trailer driver pulled his vehicle into the parking lot of a Love’s store to purchase fuel and food. It was not raining at the time.

The Plaintiff entered and exited the store without any problem before the incident. He confirmed that he did not see any type of liquid on the ground where he fell while entering and exiting the store.

After fueling his tractor trailer, the Plaintiff retrieved an empty cup from his truck and returned to the store. Using the same entrance that he had previously used to enter and exit the store, the Plaintiff entered the store and fell.

In this Motion for Summary Judgment, the Defendant asserted that the Plaintiff admitted during his testimony that he did not know what caused him to fall.

The Plaintiff argued that he only did not know the identity of the particular substance that caused him to fall. The Plaintiff maintained that the store manager wiped up a black, foreign substance from the store near the store’s diesel entrance, which was an area away from the area where he fell.

According to his deposition testimony, after he fell, the Plaintiff felt around on the floor with his hands but did not recall seeing anything in the area where he fell. The Plaintiff also testified that he went to the bathroom after he fell and that, when he returned to the location of his fall, he did not recall seeing anything there on the floor.

The store manager also testified that he examined the area where the Plaintiff allegedly fell and found that the floor was not slippery in this location. The store manager also denied cleaning up any black substance off any part of the floor.

The court also noted that the Plaintiff did not have any information or facts to offer in terms to how long any alleged slippery substance was on the floor in the area where he fell prior to the accident or how long the area was allegedly slippery.

Judge Kane reviewed the law of Pennsylvania regarding actual and constructive notice of an allegedly dangerous condition existing on a Defendant’s premises. After reviewing that law in detailed fashion, the court concluded that the Plaintiff failed to produce sufficient evidence of any actual or constructive notice on the part of the Defendant of any allegedly dangerous condition that caused the Plaintiff to fall.

In the end, the court granted summary judgment.

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


I send thanks to Attorney Patrick J. Murphy of the Scranton office of the BBC Law, LLP for bringing this case to my attention.

Summary Judgment Granted in Slip and Fall Case -- Mere Happening of an Incident Does Not Equal Liability


In the case of Harkins v. Three Monkeys Cronydon, Inc., No. 2019-CV-03333 (C.P. Bucks Co. April 18, 2023 McHugh, J.), the court issued a Rule 1925 Opinion to explain its rationale to the Superior Court in terms of its entry of summary judgment in this slip and fall case.

In its Opinion, the trial court emphasized that the existence of a harmful condition and/or the happening of an accident, in and of themselves, do not automatically establish a breach of the landowner’s breach of care.

The court found that the Plaintiff had failed to provide evidence to specifically identify exactly what caused the Plaintiff to fall. It was also noted that the Plaintiff failed to provide evidence that the Defendant knew or should have known about any alleged condition and/or that the Defendant failed to exercise reasonable care to protect invitees from an alleged danger.

With respect to the Plaintiff’s offer of expert testimony on the liability issues, the court noted that the admission of such testimony was at the discretion of the trial court. In this matter, the court found that the Plaintiffs’ expert’s opinion was deficient, and that the opinion offered by the expert was lacking any specialized knowledge beyond that of a layperson. The court also found that the expert failed to provide sufficient scientific authority to support the expert’s opinions.

With regards to the Plaintiff’s claim of spoliation relative to any video surveillance of the incident, the court found that the deletion of video surveillance footage under the Defendant’s standard policy did not constitute spoliation because there was no evidence presented to suggest that the footage that was deleted was relevant in determining the case of the Plaintiff’s fall.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 13, 2023).

Thursday, June 22, 2023

Issues of Fact Prevent Entry of Summary Judgment in Slip and Fall Case


In the case of Spruill v. Dreher Ave. Holdings, No. 6444-CV-2021 (C.P. Monroe Co. April 17, 2023 Zulick, J.), the court denied a property owner’s Motion for Summary Judgment in a slip and fall case after finding that issues of material fact existed as to the cause and location of the ice and whether that condition allegedly caused the Plaintiff to fall.

According to the Opinion, the Plaintiff slipped and fell in her employer’s parking lot after leaving a Christmas party.

After discovery, the Defendant moved for summary judgment, claiming that the hills and ridges doctrine barred the Plaintiff’s claim.

The court noted that the Plaintiff had produced photographs and testimony that ice had accumulated around a drainpipe and then spread across the sidewalk, went over the curb, and ran across the surface of the parking lot.

The court ruled that the hills and ridges doctrine did not preclude liability where an icy condition was allegedly caused by a drainpipe or some other cause like a defective hydrant or water pipe.

Judge Zulick noted that, where a specific, localized patch of ice existed in the area that was otherwise free of ice and snow, the presence of the hills and ridges necessary to support the hills and ridges defense is not established.

The court found that material questions of fact and testimonial differences as to the cause and location of the ice, as well as whether that condition caused the Plaintiff to fall, required the court to deny the Motion for Summary Judgment.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 16, 2023).

Tuesday, June 20, 2023

Federal Court Addresses Motions In Limine Regarding Accident Reconstruction, Biomechanical, and Medical Experts in a MVA Case



In the case of Chebbani v. U.S. Dept. of Agric., No. 5:21-CV-04298-JMG (E.D. Pa. May 1, 2023 Gallagher, J.), the court addressed cross-Motions In Limine filed by Plaintiffs and Defendants in a motor vehicle case to preclude each party’s expert witnesses in this federal court case.

The Plaintiffs filed a Daubert motion seeking to preclude the opinions of the Defendant’s accident reconstruction expert and biomechanical engineering expert.

The Defendant filed a motion to preclude the testimony of a neurologist and pain management doctor who conducted an examination of the Plaintiff.

Relative to the Plaintiff’s motion to preclude the expert opinion of the accident reconstructionist and the biomechanical engineering expert retained by the defense, it was noted that there was an opinion by the defense expert that the Plaintiff’s vehicle was contacted at 2.5 mph and that the Plaintiff’s alleged injuries were, therefore, not consistent with the mechanism of injury.

The Plaintiff challenged the reliability of the experts’ opinions on the grounds that the experts did not conduct a physical examination of the vehicles.

The court denied the Plaintiff’s motions and noted that, the Defendant’s experts were unable to examine the vehicles because they were no longer available by the time the Complaint was filed. It was otherwise noted that the Defendant’s experts were able to examine at least twenty-one (21) other pieces of evidence, including photographs of the vehicles and an analysis of the software that the experts utilized to render their opinions.

The court also found that the biomechanical expert's opinion was supported by citations to pertinent studies.  The court also noted that the biomechanical expert for the defense had properly relied upon the opinion of the accident reconstruction expert who opined that the accident had occurred at a minimum speed.

As such, the Defendant’s experts’ opinions were found to be reliable. Accordingly, the Plaintiff’s motion to preclude those expert opinions was denied.

The Defendant’s motion to preclude the expert opinion of the Plaintiff’s neurologist who had completed an examination of the Plaintiff was granted in part and denied in part.

The court found that the neurologist’s opinions and diagnoses regarding Plaintiff’s alleged injuries were partially admission.

The court confirmed that it would allow the doctor’s opinions that the Plaintiff had suffered post-concussive syndrome and post-traumatic headaches as a result of the accident based upon the doctor’s educational experience, the doctor's review of the records from before and after the accident, the physical examination of the Plaintiff, and the Plaintiff’s history.

However, the court stated that the Plaintiff had failed to show that the doctor’s diagnoses of an ocular motor dysfunction and a left shoulder sprain were reliable given that those conditions were merely mentioned in the Plaintiff’s medical records and that no such symptoms were noted to be present during the doctor’s examination of the Plaintiff.

The court also noted that the doctor’s diagnoses of a cervical sprain/strain injury and myofascial pain was not reliable or admissible where the Plaintiff had been treated for neck pain before the accident and the examining doctor did not review those records.

Accordingly, the court found that the doctor failed to thoroughly consider alternative causes for the diagnosis other than the accident.  As such, the defense motion was granted in part and denied in part.

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 (May 25, 2023).

Monday, June 19, 2023

Fishing Expeditions Not Allowed in Discovery


In the case of Rotella v. Community Medical Center, No. 22-CV-3943 (C.P. Lacka. Co. June 9, 2023 Nealon, J.), the court addressed the proper breadth and scope of subpoenas for a Plaintiff’s prior medical records in a medical malpractice action.

In this case, the Plaintiffs confirmed to the court that they had no objection to the Defendants seeking records regarding the injured Plaintiff’s condition at issue. It was also noted that the Defendants had already secured records on the Plaintiff dating back over twenty (20) years before the treatment which was the subject of this lawsuit.

The Plaintiff challenged additional subpoenas issued by the Defendants that sought any and all records from the time the Plaintiff’s birth for any and all conditions and illnesses.

It was the Plaintiff’s contention that the Defendants did not have good faith basis to request records of this magnitude. The Plaintiffs otherwise indicated that they did not object to any request of discovery for some reasonable prior time period, such as 3-5 years.

After reviewing the Rules of Civil Procedure and related case law on the responsibility of the trial court to oversee discovery between the parties, Judge Nealon noted that it is within the court’s broad discretion to determine the appropriate measures to ensure adequate and prompt discovery of information in a lawsuit. 

The court noted that, generally, discovery is to be liberally allowed with respect to any matter, not privileged, which is relevant to the case being tried. The court also noted that the relevancy standard applicable to discovery is broader than the standard used at trial for the admission of evidence. 

However, the court also noted that discovery requests must be reasonable, which is to be judged based upon the facts and circumstances of the case. The court is granted with authority to prohibit any discovery of matters which has been stated too broadly. Judge Nealon noted that, although discovery is to be liberally allowed as a general rule, “fishing expeditions” are not authorized under the Pennsylvania Rules of Civil Procedure.

Judge Terrence R. Nealon
Lackawanna County 


In colorful language, Judge Nealon noted that, as the court has observed with increasing frequency, “[w]hile a limited degree of ‘fishing’ is to be expected with certain discovery requests, parties are not permitted ‘to fish with a net rather than a hook or a harpoon.’” [citations omitted]. Applying the above law to this case, the court ruled that the subpoena served by the Defendants, as presented, were too broad.

The court did allow the Defendants to request records and materials for the period of ten (10) years prior a relevant date up to the present.

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

Source of top image:  Photo by Chris F on www.pexels.com.




Friday, June 16, 2023

NEW DATE FOR POSTPONED LACKAWANNA COUNTY PRO BONO GOLF TOURNAMENT

 


Article: Pennsylvania Supreme Court Shows Teasing Signs of Moderation


This article of mine was recently published in the Pennsylvania Law Weekly and is republished here with permission.


Pennsylvania Supreme Court Shows Teasing Signs of Moderation


June 01, 2023


By Daniel E. Cummins | June 01, 2023 at 11:34 AM


Over the past five years or so, the Pennsylvania Supreme Court has been issuing one decision after another, along with civil litigation rule changes, most, if not all of which, have greatly favored personal injury plaintiffs’ causes.

With these plaintiff-friendly decisions and rule changes handed down by the Supreme Court, there appeared to be no end in sight to the ability of the plaintiffs bar to continue to score drastic changes in the law in favor of efforts to secure compensation for injured parties.

However, as noted below, a couple of recent decisions by the Pennsylvania Supreme Court have tempered this sense of futility for some.

The Pendulum Shift in Favor of Plaintiffs

Over the past several years, the great number of plaintiff-friendly decisions and rule changes issued by the Supreme Court has caused the pendulum of change in Pennsylvania civil litigation precedent to swing so far in favor of plaintiffs that it seems that celebrating plaintiffs attorneys should be ducking so as not to get hit by that pendulum as the good times roll on.

One result of these plaintiff-friendly decisions by the Supreme Court has been that injured parties have realized even wider avenues to secure money in civil litigation matters. Another result is that plaintiffs have been emboldened in their settlement postures with the confidence that, under the current climate, if any legal issues in their case have to go up the appellate ladder to the Supreme Court, the plaintiff will more than likely prevail.

In terms of plaintiff-favorable rule changes in personal injury civil litigation matters, the Supreme Court has expanded the Rules of Civil Procedure relative to the proper venue for medical malpractice actions. This, as expected, has led to an increase of the filings of such cases in Philadelphia County as compared to before.

Another plaintiff-friendly change in the venue rules was handed down by the Supreme Court by way of its decision in the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021). In the Fox decision, the plaintiff was successful in persuading the Supreme Court to rule that internet-based defamation claims can be filed in any county where the defamatory statements were viewed and understood as defamatory.

In another rule change, 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 proceeding.

Other recent plaintiff-friendly decisions by the Supreme Court have been described as resulting in “seismic” changes in decades-long Pennsylvania precedent. For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Supreme Court to overrule long-standing precedent that limited the liability exposure of PennDOT in personal injury matters. In Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Supreme Court again assisted the plaintiffs bar in generating additional potential lawsuits by overturning 30 years of precedent that had previously upheld governmental immunity in personal injury matters in a more expansive way.

Also, in almost gleeful language in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019), the Supreme Court overruled the 20 years of precedent that had previously and repeatedly upheld the validity of the household exclusion in the UIM context of personal injury automobile accident matter. As noted below, in a more recent decision on the validity of the household exclusion, that plaintiff-friendly ruling in Gallagher was found to be so inappropriately expansive in its effort to eradicate that exclusion across the board that even the high court acknowledged that it had to draw back on Gallagher a bit.

A Return to Moderation?

In two recent decisions, both of which were expected to result in plaintiff-favorable rulings, the Supreme Court surprised some with opinions that were not plaintiff-friendly.

In the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Supreme Court, without acknowledging that it had attempted to eradicate the household exclusion in UIM cases across the board in the Gallagher v. Geico case, rejected the argument by the plaintiff that the Gallagher decision should be read as having served to invalidate the exclusion in all cases in Pennsylvania. In Mione, the court instead wrote, “We reiterate today that the holding in Gallagher was based upon the unique facts before us in that case, and that the decision there should be construed narrowly.”

The court instead confirmed in the Mione decision that the Supreme Court “continues to reject the view that household vehicle exclusions are ipso facto unenforceable.”

This decision came as a welcome surprise to some and a hopeful harbinger that the court was stepping away from its penchant for decisions that resulted in seismic, plaintiff-friendly changes to long-standing precedent in Pennsylvania law.

In the other example of a recent Supreme Court decision that seemed to indicate that the court may be signaling a return to more balanced application of long-standing law, the court addressed issues of the stacking of UIM coverage in automobile insurance personal injury actions.

In the case of first impression of Franks v. State Farm Mutual Automobile Insurance, No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.), the court ruled that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived through a waiver form executed by the insured, did not require the insurance carrier to secure another written waiver of stacked coverage from the insured under Section 1738(c).

The basic rationale of the court was that Section 1738 requires insurance companies to secure a new written waiver of UIM coverage whenever an insurance policy is purchased. Here, there was a change made to an existing policy. No new policy was purchased. As such, the court found there was no requirement under a plain application of the applicable law for the insurance company to secure a new waiver form.

Might the above decisions by the plaintiff-friendly Pennsylvania Supreme Court be a signal that the pendulum had finally reached its apex and was going to start its descent back toward moderation relative to issues in personal injury civil litigation matters?

Not So Fast

On the heels of the above recent decisions indicating a possible step back toward at least moderate decisions in personal injury civil litigation matters, the Pennsylvania Supreme Court then recently issued yet another very plaintiff-friendly decision in the case of Brown v. City of Oil City, No. 6 WAP 2022 (Pa. May 16, 2023) (Op. by Todd C.J.)(Mundy, J., Dissenting). With this decision, the Supreme Court greatly expanded the ability of plaintiffs to bring lawsuits against construction contractors for personal injuries sustained on a property by allowing such claims to be brought even if the contractor had completed his work on the property years before.

In Brown, the plaintiff allegedly tripped and fell on deteriorated sections of concrete steps outside of a library, which steps had been replaced by a contractor years before the incident. The plaintiff sued the owner of the library as well as the contractors who performed work on the exterior stairs to the library.

The case went up the appellate ladder and the Pennsylvania Supreme Court addressed the scope of Section 385 of the Restatement (Second) of Torts, which is titled “Persons Creating Artificial Conditions on Land on Behalf of Possessor, Physical Harm Caused After Work Has Been Accepted.”

The issue before the court was whether Section 385 imposed liability upon a contractor to a plaintiff whenever the contractor, during the course of his or her work for a possessor of land, creates a dangerous condition on the land that injures the plaintiff, even though, at the time of the injury, the contractor was no longer in possession of the land, and the possessor of the land was aware of the dangerous condition.

After reviewing the law, the Supreme Court concluded that a contractor may indeed be subjected to liability to plaintiffs under Section 385 under such circumstances. Obviously, this decision is another one in which the Supreme Court once again increased the number of parties plaintiffs may sue and widened the scope of possible monetary recoveries for injured-party plaintiffs.

So You’re Saying There’s a Chance?

One benefit of the two recent moderate decisions issued by the Pennsylvania Supreme Court in the Mione case and the Franks case is that those decisions give rise to some uncertainty, however minimal, as to which way the Pennsylvania Supreme Court may rule on a personal injury civil litigation issue before it. While it appears that the Supreme Court will likely remain plaintiff-friendly for the foreseeable future, the two recent decisions in which the defense argument prevailed serves to restore some faith in a belief that a plaintiff-favorable decision on any given issue before the court may not be automatic.

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.

Wednesday, June 14, 2023

TORT TALK RANKED AMONG THE TOP 15 TORT LAW BLOGS IN THE ENTIRE WORLD


Just received notice from Feedspot.com that Tort Talk (www.TortTalk.com) has been selected as one of the 15 Best Tort Law Blogs in the World.

Here is a LINK to Feedspots listing of its 15 Best Tort Law Blogs in the World as ranked by traffic, social media followers and freshness.

I send thanks to Feedspot.com for this recognition and I thank all Tort Talkers for reading Tort Talk and providing tips on important cases and decisions.

THANK YOU!!


Court Denies Preliminary Objections Based on Statute of Limitations Issues Where Plaintiff Made Good Faith Effort to Complete Service


In the case of Rosenwald v. Finkelstein, No. 4813-CV-2022 (C.P. Monroe Co. April 17, 2023 Williamson, J.), the court overruled Preliminary Objections filed by a Defendant to a Plaintiff’s Complaint alleging lack of proper service and the expiration of the statute of limitations.

This case arose out of a motor vehicle accident.

The Plaintiff admitted that they mistakenly attempted to complete service via a process servicer in reliance upon Pa. R.C.P. 400.1, instead of Pa. R.C.P. 400.

The court noted that Pa. R.C.P. 400.1 allows service of original process in the First Judicial District (Philadelphia) by the sheriff or a competent adult.

The court noted that, after realizing their mistake, the Plaintiff promptly filed a Praecipe to Reinstate the Complaint and engaged the local county Sheriff’s Office in Monroe County to make personal service which was completed.

Relative to the Preliminary Objections, the court first noted that the central focus of the Defendant’s Preliminary Objections was the expiration of the statute of limitations. Judge Williamson initially noted that the defense of the expiration of the statute of limitations is an affirmative defense that is not generally properly raised during Preliminary Objections.

Regardless, the court went on to review the merits of the Preliminary Objections. These objections were denied given that the Plaintiffs sought to remedy their error within days of the filing of the Preliminary Objections.

More specifically, the court found that the procedural history in the case did not suggest a course of conduct by the Plaintiff that was meant to stall the action. Rather, the record revealed that the Plaintiff had made a simple mistake and corrected the same promptly. 

The court also noted that the Plaintiffs had informed the Defendant’s insurer of the accident so that the Defendant was able to begin working on the defense of the case. 

As such, the court found that the Defendant did not suffer any harm.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 16, 2023).

Tuesday, June 13, 2023

Trial Court Dismisses Case Due to Lack of Proper Service in a Timely Fashion


In the case of Brown v. Gilman, No 21-CV-4724 (C.P. Lack. Co. May 11, 2023 Nealon, J.), the court sustained a Defendant’s Preliminary Objections pursuant to Pa. R.C.P. 1028(a)(1) asserting a lack of proper service of original process within the two-year statute of limitations.

After reviewing the record before him, Judge Nealon noted that this was not a case were a Plaintiff actually served the Defendant with original process by an improper mode of service within the applicable statute of limitations.

Rather, the court found that the conduct of the Plaintiff in this case was akin to the service efforts seen by Plaintiffs in other cases who were unsuccessful with an initial attempt at service, but then made no further efforts to serve a Defendant by reinstating the Complaint or seeking leave of court to use an alternative form of service under Pa. R.C.P. 430. 

Here, the court noted that there was an almost eighteen (18) month period of time between the time that notice was received from the Sheriff that the Defendant was never served with original process before any attempt was made by the Plaintiff to reinstate the Complaint and complete service.

As such, the court found that the Plaintiffs have failed to satisfy their burden of demonstrating that they acted diligently in making a good-faith efforts to timely complete service upon the Defendant with original process and notice of the lawsuit.

Judge Nealon also noted that, under Pennsylvania law, providing notice to the Defendant’s carrier cannot serve as a substitute to actual service upon a Defendant.

The court emphasized that service of process is the mechanism by which a court obtained jurisdiction over a Defendant and, absent proper service, the court does not possess jurisdiction.

As such, the court sustained Defendant’s Preliminary Objections and entered judgment in favor of the Defendant.

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

Source of image:  Photo by Karolina Grabowska on www.pexels.com.

Monday, June 12, 2023

Judge Mannion of Federal Middle District Upholds Regular Use Exclusion in the Third Party Liability Coverage Context


In the case of Burton v. Progressive Adv. Ins. Co., No. 3:21-CV-01522-MEM (M.D. Pa. March 20, 2023 Mannion, J.), the court addressed cross-Motions for Summary Judgment based upon a regular use exclusion.

This matter arose out of a motor vehicle accident. At the time of the accident, the Defendant driver was insured by an automobile insurance policy issued by the Defendant, Progressive Advanced Insurance Company. Under that policy, there was a regular use exclusion that precluded coverage to any insured who was operating a vehicle that was furnished or available for an insured’s regular use but which was not covered under the Progressive policy.

In other words, under that provision, Progressive was precluding coverage for accidents involving a vehicle that was regularly available for the insured's use but for which the insured was not paying Progressive any premiums for any insurance coverage.    

More specifically, on the date of the subject accident, the Defendant driver was driving a vehicle that was owned by her brother and which was not covered under the Progressive policy.

According to the record before court, the Defendant driver had her brother’s permission to be driving his vehicle at the time of the accident because she was having mechanical issues with her own vehicle. The Defendant driver noted that she had been driving her brother’s car for about a month or two before the incident. Other evidence in the case indicated that the Defendant driver was using the vehicle at issue on a daily basis and at her discretion.

Progressive denied coverage on the claims presented under an argument that the vehicle that the Defendant driver was operating was not covered under the Progressive policy and given that the vehicle that the Defendant driver was driving was allegedly furnished and available for her regular use and, therefore, fell under the regular use exclusion.

The Plaintiff cited the case of Rush v. Erie Insurance Exchange and asserted that the regular use exclusion should be deemed to be unenforceable under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL).

The Defendant attempted to distinguish the Rush case and other cases as being distinguishable as UIM cases which reviewed the regular use exclusion under §1731 of the MVFRL, which statute governs the scope of UIM claims.

Judge Mannion noted that this case did not involve a UIM claim and that, therefore, §1731 did not apply. Rather, this case involved a request for liability coverage by the Defendant driver.

The court noted that the Plaintiff was requesting the court to extend the holdings of the Rush case, and another case cited in this Opinion, to cover liability claims as well. Judge Mannion noted that there was no support under Pennsylvania law for the requested extension of the law of those decisions to this fact pattern. As such, the Plaintiff’s Motion for Summary Judgment was denied.

The court also rejected the Plaintiff’s more specific factual arguments that the type of use of the vehicle by the Defendant driver was not regular, but rather, was incidental or temporary while the Defendant driver’s car was being repaired. The court rejected this claim after reiterating that the record before the court established that the Defendant driver had free access to use the car at her discretion over an extended period of time.

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

Thursday, June 8, 2023

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Petition To Transfer Under Doctrine of Forum Non Conveniens Denied


In the case of Russo v. Allstate Indem. Corp., Feb. Term 2022, No. 02004 (C.P. Phila. Co. Feb. 15, 2023 Fletman, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s decision to deny the insurance company’s Petition to Transfer Venue under the Doctrine of Forum Non Conveniens.

The trial court initially ruled that the appeal should be quashed because the Order denying the Petition to Transfer Venue for Forum Non Conveniens is not an appealable Order under the Pennsylvania Rules of Appellate Procedure.

In this regard, the trial court noted that the Order did not dispose of all parties and all claims and did not change venue or transfer the matter to another court.

The trial court stated that, while Orders granting changes in venue are interlocutory Orders that are appealable as of right, Orders denying such petitions were not appealable.

The trial court went on to review the substantive issues presented as well. The trial court stated that it denied the Motion to Transfer Venue where the Defendant had failed to carry its burden of providing detailed information to establish that the Plaintiff’s chosen forum was oppressive or vexatious. In particular, the court noted that the Defendant did not provide any Affidavits from any witnesses who would be inconvenienced.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 16, 2023.).

Tuesday, June 6, 2023

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Community Use of Property Doctrine Utilized to Find that a Plaintiff Was a Licensee in a Premises Liability Case


In the case of Sallum v. The Pennsylvania Conf. Assoc. of Seventh-Day Adventists, No. 2021-CV-00234 (C.P. Lehigh Co. April 13, 2023 Caffrey, J.), the court addressed a Motion for Summary Judgment in a slip and fall case.

One of the central issues addressed by the court was whether or not the Plaintiff was a licensee where he slipped and fell in a parking lot and the Defendant asserted that the Plaintiff was not authorized to park in the parking lot.

According to the record before the court, the Plaintiff was a member of a mosque that had previously occupied the property and had parked his vehicle in the parking lot in the premises for over eight (8) to nine (9) years. After the Defendants in this case purchased the property, the Plaintiff allegedly spoke with two (2) individuals about whether or not he would be permitted to continue to use the parking lot. Those individuals, who allegedly identified themselves as employees of the new owner, allegedly told the Plaintiff that he could continue to park his vehicle in the parking lot.

The Plaintiff estimated that he then continued to park in that lot on hundreds of occasions without anyone telling him that he could not park there.

The Defendants asserted that they had notified the public at large that the parking lot was not available for public parking given that the Defendants had posted a sign indicating that unauthorized vehicles would be towed. It was also indicated by the Defendant that they would periodically use chains and a padlock to secure the entrance to the parking lot.  However, the Defendants also noted that, when they noticed unauthorized vehicles in the lot, they did not take steps to have those vehicles removed.

A witness who lived in the neighborhood testified that everyone in the neighborhood parked in the parking lot without any issue.

On the day of the incident, snow and ice had accumulated in the parking lot. The Plaintiff was able to enter the parking lot because it was not secured by any change or a padlock. The record also revealed that the parking lot was full of vehicles but the Plaintiff was able to find the last open space. As the Plaintiff stepped out of his vehicle, he slipped and fell.

The court denied the Defendant's motion for summary judgment after finding material issues of fact as to whether or not the Plaintiff was a licensee based upon the alleged implied consent of the use of the land by the landowner.

In so ruling, the trial court recognized the notation of “community use of a property” under the Restatement (Second) of Torts §332 as a basis for denying the Motion for Summary Judgment.  Plaintiff’s counsel indicated that, based upon his research, this may be the first Pennsylvania state court in which that rationale was utilized in this context.

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


I send thanks to Attorney Michael J. McKarski of the Bethlehem, PA law firm of Cohen, Feeley, Altemose & Rambo for bringing this case to my attention.


Source of image: Photo by Welhim Esaga on www.pexels.com.

Friday, June 2, 2023

Chief Judge Brann of Middle District Federal Court of PA Provides a Definition for Gross Negligence



In the case of Johnson v. Keane Group Holdings, LLC, No. 4:20-CV-00491 (M.D. Pa. May 3, 2023 Brann, C.J.), the court reviewed the definition of “gross negligence.”

In this matter, the court denied summary judgment in a personal injury case involving a plaintiff who was injured in at a well site in the oil and gas industry.

The court noted that the Defendant’s indemnification agreement excluded liability for “gross negligence.”

Chief Judge Brann noted that the Pennsylvania Supreme Court has never precisely defined the term of “gross negligence.”

The Court found the question before it to involve the issue of whether "gross negligence" requires a finding of recklessness on the part of the defendant.  In the end, Judge Brann ruled that "gross negligence" does not required a finding of recklessness.

Judge Brann noted that the difficulty in defining gross negligence arises from the fact that the terms origin is in statutory law rather than common law, which does not recognize degrees of negligence.

Chief Judge Brann stated that gross negligence does not require the intentional indifference or conscious disregard of risks that defines recklessness.

Accordingly, gross negligence was found to require evidence that an actor’s conduct was an extreme departure from the relevant standard of care. However, evidence that the actor acted recklessly is not required for a finding of gross negligence.

The court denied summary judgment in this case given the issues of fact presented on and found that summary judgment was not appropriate on the issue of whether or not the Defendant was grossly negligent under the circumstances presented.

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

I send thanks to Attorney James M. Beck of the Reed Smith law firm in Philadelphia for bringing this case to my attention.



Thursday, June 1, 2023

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