Thursday, August 31, 2023

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


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

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

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

The Plaintiff then filed an appeal.

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

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

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

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

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

Wednesday, August 30, 2023

Insurance Bad Faith Claim Allowed to Proceed

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

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

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

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

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

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

Photo by Rob Hayman on

Monday, August 28, 2023

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

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

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

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

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

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

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

Photo by Victor Grabarczyk on

Friday, August 25, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo by Sora Shimazaki on

Wednesday, August 23, 2023

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

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

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

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

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

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

Tuesday, August 22, 2023

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

Homeowner, Frank The Tank, Incurs Social Host Liability

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, August 21, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Call or Email to Schedule Your Mediation:

(570) 319-5899

Thursday, August 17, 2023

Selected Again To Appear in The Best Lawyers In America Directory

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

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

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

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

Sad to See......

Trickett Hall

Sad To See.....

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

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

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

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

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

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

Now the schools are merging back together.

Sad to see.

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

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

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

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

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

The Curtilage

Case Dismissed Due to Statute of Limitations Defense

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

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

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

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

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

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

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

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

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

Tuesday, August 15, 2023

Denial of COVID-19 Business Losses Claim Upheld

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

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

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

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

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

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

Wednesday, August 9, 2023

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

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

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

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

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

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

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

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

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

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

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

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

Monday, August 7, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is Uber's Arbitration Clause Enforceable?

In the case of Chilutti v. Uber Technologies, Inc., No. 1023 EDA 2021 (Pa. Super. July 19, 2023 en banc) (Op. by McCaffery, J.)(Stabile, J., Dissenting), a split Pennsylvania Superior Court ruled that the Plaintiffs were not bound by arbitration agreement that was contained within a set of hyper linked “terms and conditions” on a website or a smart phone application that they never clicked upon, viewed, or read.  

Such "terms and conditions" contained an arbitration clause relative to any personal injury claims.

In ruling that a plaintiff is not bound by the arbitration clause under the facts and circumstances at issue in this case, a majority of the Pennsylvania Superior Court en banc panel upheld a Plaintiff’s constitutional right to a jury trial in a personal injury matter. 

This case is the first before a Pennsylvania appellate court to examine the waiver of a right to a jury trial in an online agreement.

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

Source: Article - “Split Pa. Superior Court Rules Uber’s Arbitration Clause is Unenforceable” by Aleeza Furman Pennsylvania Law Weekly (July 21, 2023).

Source of image:  Photo by Austin Distel from

Wednesday, August 2, 2023

Court Precludes Evidence of Prior Slip and Falls At Premises Liability Trial

In the case of Kunsman v. Wawa, Inc., No. 2017-23859 (C.P. Montg. Co. June 2, 2023 Saltz, J.), the court issued a Rule 1925 Opinion requesting that the Superior Court affirm the verdict in favor of the Defendant in a slip and fall case.

According to the Opinion, the Plaintiff allegedly slipped and fell on a yellow-painted surface in the parking area at the Defendant’s store.

One of the issues on appeal was the trial court’s ruling on the Defendant’s Pre-Trial Motion In Limine to prevent the Plaintiffs from offering evidence of prior lawsuits or claims against the Defendant. The subject of that motion was a list of fourteen (14) prior claims, each of which involved in a slip and fall accident on yellow traffic paint, which information was provided to the Plaintiff by the Defendant in discovery.

During depositions, the Defendant’s Senior General Liability Specialist indicated that only one (1) of the fourteen (14) claims was at the same store where the Plaintiff fell.

In the end, the trial court authorized the admission of the evidence of that particular claim, but not the others.

In this Opinion, the court noted that the Plaintiff did not sustain their burden of proving that the claims of the other prior incidents on the list, other than the incident that occurred at the same store, were “sufficiently similar” under the “sufficiently similar circumstances” test.   The trial court requested the Superior Court to affirm its decision in this regard.

Another issue in this case was the Plaintiff’s objections to the jury instructions relative to the failure of the Defendant to produce any video footage of the subject incident.

At trial, the assistant general manager of the store testified that he sent to the Defendant’s corporate headquarters surveillance video camera recordings that he thought had captured the accident.

However, the store’s general manager then testified that there were no cameras in a place that had a view of the site of the incident.

Prior to trial, the court had directed the Defendant to provide the Plaintiff with all videos from the date of the accident taken at any location at the store.

The Defendant did so and none of the videos included the site of the accident.

At trial, the Plaintiff requested that the jury be provided Suggested Standard Jury Instructions §5.60, addressing spoliation of evidence. The trial court denied that request and instead instructed the jury under §5.30, regarding the failure to produce evidence.

As noted above, in the end, the jury found that the Defendant store was not negligent.

As part of its appeal, the Plaintiff stated that the trial court erred by instructing the jury on the failure to produce evidence standard rather than the spoliation of evidence jury instruction.

The trial court noted that the Plaintiff’s argument in this regard should not be upheld as the jury instruction on the failure to produce evidence was substantially the same as the instruction regarding spoliation of evidence. The court stated that the Plaintiff did not demonstrate any prejudice from the use of the instruction actually provided to the court. The court also noted that it was within its discretion in deciding which instruction to use. 

Here, in light of the conflicting evidence about the existence of any applicable video recording, the court noted that the jury was properly allowed to draw an adverse inference if it found that the Defendant had possessed a video but had not produced it.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 4, 2023).