SAVE THE DATE: Lackawanna Pro Bono Fundraising Gala - November 29, 2023

 

Jury's Zero Verdict Upheld

In the case of Derry v. Blackman, No. 3:21-CV-01744 (M.D. Pa. June 30, 2023 Mehalchick, J.), the court ruled that a jury’s zero verdict in a conceded liability case was not against the weight of the evidence.

The court emphasized that the record in the case confirm that the existence, severity and alleged cause of the Plaintiff’s alleged injuries were all disputed.

Judge Mehalchick reiterated the rule of law that a jury is free to decide which side’s witnesses are credible.

The court also noted the general rule of law that, even if a jury found that a Plaintiff did actually suffer some pain or discomfort as a result of an accident, the jury could conclude that the injuries were not significant enough to warrant compensation.

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.

Pennsylvania Supreme Court Addresses Issues of Indemnification and Contribution in Context of Medical Malpractice Claim

In the case of McLaughlin v. Nahata, No. 7 WAP 2022 (Pa. July 28, 2023) (Op. by Brobson, J.)(Wecht, J., Concurring), the Pennsylvania Supreme Court, in a unanimous decision, found that a hospital and a dialysis clinic were determined to be vicariously liable for the negligence of the doctors, and Pennsylvania law permitted the hospital to seek contribution from the dialysis clinic.
However, the Court was evenly divided on the question as to whether the hospital could also seek indemnification from the dialysis clinic.

Given the decision on contribution and the inability to reach a decision on the indemnity issue, the Superior Court decision was affirmed.

In this case, the issue presented to the court was whether, as a matter of law, the hospital could seek contribution and/or indemnity from a dialysis clinic for negligence allegedly committed by the doctor employees of the dialysis clinic.

The trial court and the Superior Court had both previously concluded that, although the judicial principles for contribution and indemnity did not apply cleanly to these particular circumstances, equitable principles of law permitted the hospitals to seek both contribution and indemnity from the dialysis clinic. As noted above, the Supreme Court agreed on the issue of indemnification but split on the issue of contribution.

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


Justice Wecht's Concurring Opinion can be viewed HERE.


The Supreme Court's Per Curiam Order can be viewed HERE.

Source: “Justia Daily Opinion Summaries” Pennsylvania Law Weekly (July 29, 2023).

Source of image:  Photo by Camilo Jiminez on www.unsplash.com.

Court Finds Medical Malpractice Claim To Be Barred By Statute of Limitations

In the case of Swart v. UPMC Pinnacle Hospital, No. 2020-CV-10091 MM (C.P. Dauph. Co. May 3, 2023 McNally, J.), the Plaintiff appealed a trial court Order which dismissed her medical malpractice Complaint based upon the application of the statute of limitations.

According to the Opinion, the Plaintiff alleged medical negligence relative to hip replacement surgeries. The Plaintiff asserted that the doctor utilized prosthetics that were too short during each of the Plaintiff’s surgeries, causing a painful limp. The Plaintiff also alleged that she consulted a different doctor, who performed a third surgery, and concluded that the prosthetics that the Defendant had implanted were too short and made the Plaintiff’s legs uneven.

In this matter, there was a dispute between the parties as to when the Plaintiff’s cause of action arose.

The Defendants asserted that the latest date that the Plaintiff’s cause of action could have accrued was around July of 2018 when the Plaintiff obtained a third opinion confirming that her hip replacement surgery caused her to have a shorter right leg and corresponding pain.

The Plaintiffs asserted that the discovery rule should be applied such that the accrual of the cause of action would not be until after the third surgery was completed in October of 2018 when the first doctor’s alleged negligence was allegedly confirmed.

The trial court considered the discovery rule and concluded that the Plaintiff’s cause of action accrued no later than July of 2018 as evidenced by the record and the Plaintiff’s own deposition testimony. 

More specifically, the record indicated that the Plaintiff was, at that point, aware of significant harm and a causal connection between the harm and the doctor’s actions, even though the Plaintiff did not have complete knowledge of the injury’s full extent or precise cause of the same. 

The court confirmed that the Plaintiff testified at her deposition with admissions that she knew by July of 2018 that she was suffering pain, leg length discrepancy, and physical limitations after the second surgery and that she believed that the doctor’s surgeries were responsible.

Accordingly, since the Plaintiff filed suit beyond the two (2) year statute of limitations, the court ruled in favor of the Defendants and dismissed the Complaint.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 22, 2023).

Source of image:  Photo by Anna Shvets on www.pexels.com.

Claims of Recklessness And Punitive Damages Allowed To Proceed in Trucking Accident Case Where Outrageous Facts Pled

In the case of Guy v. Eliwa, No. 4:23-CV-00472 (M.D. Pa. Sept. 11, 2023 Brann, C.J.), Chief Judge Matthew W. Brann of the Federal Middle District Court for the Middle District of Pennsylvania reviewed the propriety of claims of recklessness in civil litigation matters in the context of a federal court personal injury suit.

According to the Opinion, this case arose out of a three (3) vehicle accident on Interstate 80 that involved three (3) tractor trailers. Two (2) tractor trailers were involved in an accident on the highway and then struck the Plaintiff’s parked tractor trailer.

One of the Defendant tractor trailer drivers fled the scene of the accident without attempting to stop or render aid. That driver was subsequently charged with accidents involving death or personal injury, disregarding the traffic lane, accident involving property damage, failure to stop and give information and render aid, careless driving, and recklessly endangering another person.

The Plaintiff sued the tractor trailer drivers and their employers. In the Complaint, the Plaintiff asserted various allegations of recklessness.

The Defendants filed various motions against the Complaint.

In contrast to the more stringent state court Rules of Civil Procedure requiring fact-pleading in Pennsylvania, under the Federal Rules of Civil Procedure, notice pleading is all that is required.  

Relative to the Plaintiff’s claims for punitive damages, the court in this case noted that the Plaintiff cited to Pennsylvania case law explaining that the procedural rules allow a Plaintiff to pled gross negligence and recklessness generally.

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

Judge Brann noted that this would mean that a Plaintiff need only allege that a Defendant was “reckless” for punitive damages claims to survive a Motion to Dismiss, so long as the underlying negligence claim also survives.

In reviewing this area of the law, Judge Brann noted that there is a split of authority amongst the Pennsylvania state courts on this point. In noting the split of authority, Judge Brann cited to “Pleading For Clarity: Appellate Guidance Needed to Settle the Issue of the Proper Pleading of Recklessness in Personal Injury Matters” by Daniel E. Cummins, 93 PA Bar Ass’n Q.32 (2022).

Judge Brann noted that “even in Pennsylvania courts which permit recklessness to be averred generally at the Motion to Dismiss stage, the record must ultimately support a finding of recklessness beyond merely claiming recklessness generally. See Op. at 12 citing Monroe v. CBH20, LP, 286 A.3d 785, 780 (Pa. Super. 2022).

In this case, Judge Brann applied Federal Rule of Procedure 9(b). The court noted that Rule 9(b) mirrors Pennsylvania Rules of Civil Procedure 1019(b) by stating that “[m]alice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.”

With respect to the separate issue of allegations in support of a claim for punitive damages, the court noted that a Plaintiff is required to show that the Defendant had a state of mind such that the Defendant had to be an outrageous manner due to other an evil motive or a reckless indifference to the rights of others.

The court stated that, in order to show reckless indifference sufficient to support a claim for punitive damages, the Plaintiff must present evidence to establish that a Defendant had a subjective appreciation of the risk of harm to which the Plaintiff was exposed and that the Defendant acted, or failed to act, in conscious disregard of that risk.

Judge Brann stated that this means that recklessness - - like negligence - - is a legal standard, with components relating to a Defendant’s conduct and a Defendant’s state of mind. The court noted that Rule 9(b) only pertains to the Defendant’s state of mind.

Accordingly, Judge Brann held that a federal court may dismiss a completely bald allegation of “recklessness” as conclusory when a Plaintiff is requesting punitive damages. However, he emphasized that a federal court is not compelled to dismiss such a claim. 

Reviewing the law of the Third Circuit, Judge Brann found that the weight of authority in the Third Circuit has prompted most courts in the District, including the federal courts of the Middle District, to employ the trial court’s wide discretion in preserving recklessness claims at the Motion to Dismiss stage and allowing such claims to proceed into discovery.

Judge Brann continued by stating that the courts in the Middle District have more specifically stated that, because the question of whether punitive damages are proper often turns on the Defendants’ state of mind, this question frequently cannot be resolved on the pleadings alone but must await the development of the full factual record at trial.  As such, such claims are generally allowed to proceed beyond the pleadings stage.

Turning to the allegations asserted by the Plaintiff in this case, Judge Brann found that the Plaintiff had actually alleged outrageous facts to show evidence of reckless indifference on the part of the Defendant in any event so as to allow the claim to proceed into discovery. More specifically, the court noted that flight from the scene of an automobile accident, without attempting to stop or render aid, certainly demonstrates a degree of reckless indifference possibly justifying the application of punitive damages.

Judge Brann’s decision in this case is otherwise notable for his addressing various issues with regards to trucking accident cases, including the requirement of the Plaintiff to cite to specific statutes and laws and regulations in the Complaint when making claims of violations of the same.

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 Hannah Molitoris of the Philadelphia office of the Morgan & Morgan law firm for bringing this case to my attention.

Allegations of Recklessness and Implicit Punitive Damages Claim Allowed to Proceed In Federal Trucking Accident Case

In the case of Shank v. Hanover Intermodal Transport Inc., No. 1:23-CV-01080 (M.D. Pa. Aug. 22, 2023 Kane, J.), the court denied a Defendants’ Motion to Dismiss Plaintiff’s punitive damages claims pled in a motor vehicle accident.

The court found that the Plaintiff’s allegations plausibly supported a punitive damages remedy at this early stage of the litigation.

According to Opinion, the Plaintiff alleged that he slowed down for a truck that was turning into a driveway in front of him at which point another truck driver rear-ended the Plaintiff’s vehicle.

The Plaintiff asserted negligence claims against the truck driver and the truck company and alleged outrageous conduct in terms of the Defendants’ allegedly willfully and recklessly ignoring the safety hazards of driving a commercial vehicle in an unsafe manner and driving a vehicle in a substandard condition for interstate travel.

The Plaintiff additionality alleged that the truck company failed to properly trail its driver, failed to properly equip or maintain trucks, failed to monitor its driver performance, and was negligent in terms of hiring and retaining drivers, and/or in otherwise allegedly violating commercial motor vehicle regulations.

The Plaintiff additionally averred that the Defendant driver “consciously” drove the truck at a high rate of speed under the circumstances and also violated Federal Motor Carrier Safety Regulations.

The court denied the Defendant’s Motion to Dismiss the Plaintiff’s implicit demand for punitive damages and the allegations of recklessness, gross negligence, and/or willful misconduct as be a premature request at this pleading stage of the litigation.

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

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

Source of image:  Photo by Esteban Zapata on www.unsplash.com.

Superior Court Upholds Admission of Evidence of Plaintiff's Consumption of Alcohol in Pedestrian Accident Case

In the case of Moffitt v. Miller, No. 8 EDA 2023 (Pa. Super. Sept. 18, 2023, Pelligrini, J., Bowes, J., and Stabile, J.) (Op. by Pelligrini, J.), the Pennsylvania Superior Court affirmed a lower court’s denial of Plaintiff’s post-trial motions in a case involving a pedestrian Plaintiff who was struck by a motor vehicle.

The court found that the low verdict and the 50/50 negligence apportionment by the jury were not against the weight of the evidence.

One of the issues that the Plaintiff challenged was the admission of testimony regarding the Plaintiff's consumption of alcohol before the accident.  The appellate court found that evidence of the Plaintiff pedestrian’s high blood alcohol level at the time of the accident was properly admitted by the court below. 

The Superior Court noted that the evidence was supported by competent expert testimony that the Plaintiff’s judgement would be impaired. Additionally, there was witness testimony that the Plaintiff smelled of alcohol at or around the time of the incident. The court noted that the exclusion of this evidence would have deprived the jury of relevant evidence to consider in its decision.

The court also found that the Defendant’s alcohol expert was competent to testify based upon the expert’s several decades of experience of treating alcoholics.

In another notable ruling, the Superior court ruled that evidence established that the Plaintiff had attempted to cross the street in a mid-block area and outside of any crosswalk. As such, the court found that the Plaintiff's requested “unmarked crosswalk” instruction was properly denied.

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 Reed Smith law firm for bringing this case to my attention.

Carrier Prevails With Court's Dismissal of COVID-19 Business Interruption Claim

In the case of Brandywine Valley Premier Hospitality Group v. Fireman’s Fund Ins. Co., No. 2:22-CV-02221-GEKP (E.D. Pa. Aug. 7, 2023 Pratter, J.), the court ruled that a hotel/restaurant owner was not entitled to property insurance coverage where coverage was predicated on direct physical damage or loss and where the shutdowns required by the COVID-19 pandemic did not amount to any physical damage or loss to the property.

As such, the court granted an insurance company’s Motion to Dismiss

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 (Sept. 14, 2023).

Pennsylvania's Consent to Jurisdiction By Registering To Do Business In Pennsylvania Valid, But Subject To Continuing Attacks

Tort Talkers may recall the case of Mallory v. Norfolk Southern Railway in which the United States Supreme Court addressed the validity of Pennsylvania's consent by registration statute.  Under that statute, corporations and companies that register to do business in Pennsylvania thereby consent to subject themselves to jurisdiction in Pennsylvania state courts for lawsuits, even if the underlying accident occurred elsewhere.

A majority of U.S. justices upheld the validity of the statute, determining that it does not violate due process violations, and remanded the case back to Pennsylvania.  Yet, commentators note that the language of a Concurring Opinion by Justice Alito may spur Defendants to continue to attack the statute.

Under a recent Order, the Pennsylvania Supreme Court punted and remanded the issue all the way back down to the trial court for consideration, thereby rejecting the Defendants' attempt at a fast-tracked review by the Commonwealth's highest Court on continuing challenges to the question of whether or not Pennsylvania's consent by registration statute violates the U.S. Constitution.

Anyone wishing to review the Pennsylvania Supreme Court's Order in this regard may click this LINK.

Presently, the statute providing that a corporation's registration to do business in Pennsylvania thereby subjects that corporation to Pennsylvania state court jurisdiction over personal injury lawsuits remains valid but subject to continuing attacks.

Source of image:  Photo by Jackie Hope on www.unsplash.com.

Federal Court Finds Spoliation of Video Surveillance of Slip and Fall in Store

In the case of Heagy v. Burlington Stores, Inc., No. 2:20-CV-02447-CMR (E.D. Pa. Sept. 6, 2023 Rufe, J.), the court denied a motion against a Defendant store that was based, in part, on the Defendant store’s alleged spoliation of video surveillance evidence regarding the subject slip and fall incident.

According to the Opinion, on the day of the incident, a cleaning crew was cleaning the floors earlier that morning, as a result of which there was a wet mat near the entrance area.

About ten (10) minutes before the Plaintiff entered the store, the store employee nearly slipped and fell in the area. The Plaintiff then entered the store and slipped and fell on the tile floor after stepping from the mat, which the parties agreed was soaking wet.

Thereafter, the Plaintiff contacted a lawyer and, two (2) weeks after the fall, that attorney sent Burlington a letter confirming his representation of the Plaintiff and requesting the preservation of security/surveillance video of the incident. The Plaintiff’s attorney requested that the entire unedited video be preserved as recorded for a period of twenty-four (24) hours before and twenty-four (24) hours after the subject incident.

A few days thereafter, the adjuster for Burlington’s third party administrator contacted Plaintiffs’ counsel and stated that the store cannot produce forty-eight (48) hours of footage, but that the footage would be preserved.

According to the Opinion, two (2) days before that communication, the adjuster had submitted a request to Burlington to save video from thirty (30) minutes before the incident to thirty (30) minutes after the incident.

Ultimately, Burlington’s loss prevention associate preserved the footage only of the customer, which amounted to three (3) minutes prior to the fall and seventeen (17) minutes after the fall.

In this regard, the court was addressing a Motion for Summary Judgment by Burlington relative to the Plaintiff’s punitive damages claims along with Motion for Summary Judgment by the subcontractor Defendants who argued that Burlington’s negligence was an intervening and superseding cause of the Plaintiff’s fall and that Burlington’s spoliation of evidence warranty summary judgment in favor of the subcontractor Defendants.

The court denied all motions so that the issues could be addressed later in terms of what spoliation sanctions were warranted.

The court found that Burlington’s action of only preserving only a very limited amount of the video evidence constituted spoliation as there was no basis to conclude that Burlington’s failure to preserve the pertinent video evidence was the result of any inadvertence, routine practice, or accident. The court noted that the evidence in the record demonstrated that Burlington spoliated the pertinent video evidence for the purpose of undermining the integrity of the litigation and that Burlington could not now benefit from its own misconduct.

The court found that the Burlington spoliation did not require a dismissal of the claims against the subcontractor. The court also noted that the finding of the entitlement to a spoliation adverse inference or an award of litigation expenses was premature at the present juncture of the case. Accordingly, all arguments regarding spoliation sanctions were denied without prejudice. The court granted the party’s leave to file appropriate Motions for Sanctions.

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


Source: Article - “Major Slip-Up: Pa. Judge Rules Burlington Destroyed Relevant Evidence in Slip-and-Fall Suit, But Holds Off on Sanctions,” By: Riley Brennan of the Pennsylvania Law Weekly (Sept. 8, 2023).

Source of image:  Photo by Alex Knight on www.unsplash.com.

Summary Judgment Denied in Slip and Fall Case After Plaintiff Produced Expert Report Asserting that Floor Mat Was Dangerous

In the case of Perry v. Sam’s East, Inc., No. 1:21-CV-00301-SPB (W.D. Pa. Aug. 17, 2022 Baxter, J.), the court denied a Defendant store’s Motion for Summary Judgment in a slip and fall case after finding that genuine issues of material fact existed regarding whether the danger was known and obvious to the Plaintiff,  The court found that this question remained to be decided by the jury.

In this case, the Plaintiff alleged that the store was negligent for not having a slip resistant mat on the floor in a pedestrian walkway. The Plaintiff produced expert evidence in support of the claims presented.

The Plaintiff’s expert concluded that the Plaintiff fell as a result of an allegedly dangerous unsecured, loose mat in a foreseeable pedestrian walkway.

The court found that there is genuine issues of material fact to be decided by the jury. As such, the Motion for Summary Judgment is denied.

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

Source: Article - “Court Rejects Sam’s Club’s Motion to Nix Slip-and-Fall Case, Citing Questions of Whether Danger was ‘Known and Obvious,” By Riley Brennan of the Pennsylvania Law Weekly (Aug. 21, 2023).

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Third Circuit Allows Case To Proceed On College Tuition Refunds Due To COVID-19 Required Virtual Clasess

In the case of Hickey v. University of Pittsburgh, No. 21-2016 (3d. Cir. Aug. 11, 2023), the Third Circuit Court of Appeals held that a district court erred in part in dismissing students’ complaint for a refund of tuition and fees after their university transition to fully remote instruction in response to the COVID-19 pandemic.

The court found that the students have plausibly alleged that they had an implied contract for on-campus schooling in exchange for their tuitions and fees.

The district court Order was affirmed in part and reversed in part and remanded in part.

Anyone wishing to review a copy of this decision may click this LINK.  See the Court's related Order HERE.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 14, 2023).

Jury's Zero Verdict Upheld Even Though Defense Medical Expert Conceded Evidence of Alleged Injury

In the case of Derry v. Blackman, No. 3:21-CV-01744 (M.D. Pa. June 30, 2023 Mehalchick, Mag. J.), the court ruled that a jury’s zero verdict in a conceded liability case was not against the weight of the evidence.

In this matter, the Plaintiff filed a motion for a new trial.  The Federal Court addressed the motion under the standards set forth in F.R.C.P. 59.  Federal Magistrate Judge Karoline Mehalchick, who has been nominated to assume a position as a Federal Judge in the Middle District of Pennsylvania, wrote a thoroughly researched Opinion on the current status of Pennsylvania law regarding the validity of zero verdicts handed down by juries in Pennsylvania.

The court emphasized that the record in the case confirm that the existence, severity and alleged cause of the Plaintiff’s alleged injuries were all disputed.

Federal Magistrate Judge Mehalchick reiterated the rule of law that a jury is free to decide which side’s witnesses are credible.

The court also noted the general rule of law that, even if a jury found that a Plaintiff did actually suffer some pain or discomfort as a result of an accident, the jury could conclude that the injuries were not significant enough to warrant compensation.

In the end, the court found that the jury's verdict did not result in a miscarriage of justice and that the verdict did not cry out to be overturned as shocking the judicial conscience.   

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.

Just Because A Document is in the Cloud Doesn't Make it Accessible in Discovery

In the case of Edenfield v. ECM Energy Services, Inc., No. 999 MDA 2022 (Pa. Super. Aug. 1, 2023 Bowes, J., Lazarus, J., and Stevens, P.J.E.) (Op. by Bowes, J.), the Pennsylvania Superior Court reviewed a notable discovery issue and concluded that, despite the accessibility of electronic records stored by a party on the so-called cloud, state courts cannot order companies to compel documents stored on the cloud unless those companies have a sufficient link to Pennsylvania.

In this Opinion, the Pennsylvania Superior Court was presented with the question of whether electronic records stored in the cloud, without an established physical location in Pennsylvania, were located within Pennsylvania for purposes of Title 15 solely by virtue of being theoretically accessible from Pennsylvania.

In ruling that the documents did not have to be produced, the Pennsylvania Superior Court upheld a decision out of the Lycoming County Court of Common Pleas in which that court had denied a Petition to Compel Inspection of Corporate Books and Records of a Party. 

The Superior Court noted that, to rule otherwise, would permit the courts to compel any business utilizing Quick Books or similar services to have to produce records in Pennsylvania despite the fact that there was no other connection to the Commonwealth of Pennsylvania. The Superior Court stated that such a result was not contemplated by the law at issue.

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


Source: Article: “Despite Accessibility, Storing Corporate Records in the Cloud Does not Create Pa. Jurisdiction, Superior Court Rules.” By: Riley Brennan. Pennsylvania Law Weekly (Aug. 2, 2023).

Source of image:  Photo by Miguel Pedroso on www.pexels.com.

SAVE THE DATE: Lackawanna Pro Bono Fundraising Gala - November 9, 2023

 

Pennsylvania Supreme Court Addresses Issues of Contribution And Indemnity in a Med Mal Case

In the case of McLaughlin v. Nahata, No. 7 WAP 2022 (Pa. July 28, 2023) (Op. by Brobson, J.), the Pennsylvania Supreme Court addressed the issue of whether, as a matter of law, the hospital could seek contribution and/or indemnity from a dialysis clinic for negligence allegedly committed by the doctor employees of the dialysis clinic.

The trial court and the Superior Court had both concluded that, although the judicial principles for contribution and indemnity did not apply cleanly to these particular circumstances, equitable principles of law permitted the hospitals to seek both contribution and indemnity from the dialysis clinic.

In a unanimous decision, the Pennsylvania Supreme Court found that a hospital and a dialysis clinic were determined to be vicariously liable for the negligence of the doctors involved in this matter.  The Court also ruled that Pennsylvania law permitted the hospitals to seek contribution from the dialysis clinic. However, the court was evenly divided on the question as to whether the hospital could also seek indemnification from the dialysis clinic.

Given the decision on contribution and the inability to reach a decision on the indemnity issue, the Superior Court decision was affirmed on those questions.

Anyone wishing to review a copy of this decision may click this LINK and the related Order HERE.

Source: “Justia Daily Opinion Summaries” Pennsylvania Law Weekly (July 29, 2023).

Attempt to Extend Medical Malpractice Liability to a Landlord of a Nursing Home Rejected

In the case of Drake v. Schwartz, No. 2019 - 07345-PL (C.P. Chester Co. Dec. 12, 2022 Binder, J.), an interesting and innovative theory of liability in a medical malpractice case was attempted by a plaintiff but rejected by the court.

In this case, the court granted the Motion for Summary Judgment filed by the Defendant, who was the owner and out-of-possession landlord of a property leased to a nursing home. 

The landowner Defendant had been brought into this nursing home negligence case under a theory that one of the dangerous conditions that caused the patient’s injuries was a condition of severe understaffing at the nursing home that was caused, in part, by financial hardships imposed on the tenant nursing home by its lease agreement with the landlord.

The trial court noted that the issue presented was one of first impression. In its filings, the Plaintiffs acknowledged that they had no authority for extending a landlord’s control over a dangerous condition to a lease that was allegedly unduly economically burdensome to a tenant.

The court declined to create a new avenue for liability against the out-of-possession landlord based solely on a tenant’s invitee alleging that the tenant’s lease was overly costly or burdensome.

As such, the Defendants’ Motion for Summary Judgment was granted.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 22, 2023).

Source of image:  Photo by RDNE Stock Project on www.pexels.com.

Leash That Puppy: Violation of Dog Law Amounts To Negligence Per Se, But Plaintiff Must Still Prove Causation

In the case of Goodell v. Stroble, No. 22-00906 (C.P. Lyc. Co. July 26, 2023 Carlucci, J.), the court granted in part and denied in part a Plaintiff’s Motion for Summary Judgment in a dog bite case.

According to the Opinion, the Defendant dog owner attended an estate sale. The subject incident occurred when the Defendant was putting her purchases in her vehicle and her dog jumped out of the vehicle and allegedly attacked the nearby Plaintiff.

The Plaintiff filed a Motion for Summary Judgment arguing that the Defendant’s failure to restrain her dog on a leash or within the vehicle violated the Dog Law, making the Defendant negligent as a matter of law on a negligence per se basis.

While the court agreed that Pennsylvania law requires owners to control their dogs and that a deliberate violation of the Dog Law does constitute negligence per se, claims of absolute liability as a result can still be defended if a Defendant provides an appropriate defense.

In this regard, the court noted that there still remained the crucial question as to whether or not the dog owner’s negligence was the proximate cause of the Plaintiff’s injuries. The court explained that proximate cause refers to a direct link between a Defendant’s actions and a Plaintiff’s harm.

The court emphasized that the question of proximate cause generally remains a question to be decided by a jury.

As such, the court granted the Plaintiff’s Motion for Summary Judgment in part and denied it in part. More specifically, the court ruled that the Defendant’s conduct in this case was negligent per se under the Dog Law violation. However, the motion was denied in part on the question of proximate causation.

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

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

Source of image:  Photo by Blue Bird on www.pexels.com.

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Motion for Summary Judgment Based on Spoliation Argument Denied

In the case of Hein v. Master Builders Solution Admixtures U.S., LLC, No. 21-1116 (W.D. Pa. June 22, 2023 Hardy, J.), the court denied a Defendant’s Motion for Summary Judgment based upon a spoliation of evidence argument.

In this case, the court found that the record revealed that the Plaintiff had removed all of the allegedly defective building product from the property and had disposed of that product, except for one (1) bucket of material that was then later lost. All of this occurred before the Plaintiff gave the Defendant notice or opportunity to inspect.

As a result, the Defendant claimed that it was now impossible to determine if the Defendant had manufactured the now missing product.

The court noted that, although two (2) elements of spoliation were established, i.e., control of the evidence and relevance, there was no evidence revealed, to date, to conclusively establish the remaining two (2) factors, i.e., the actual withholding of evidence and the foreseeability that the evidence was discoverable.

According to the court, it was the Plaintiff’s claim that, at the time of the removal and the disposal of the product in question, the Plaintiff was not contemplating the lawsuit. The Plaintiff additionally claimed to have left one (1) bucket of the product with the buyers of the property after notifying the Defendant of the claim. The court noted that what had happened to that last bucket thereafter was not clear.

The court denied the Defendant's Motion for Summary Judgment based upon spoliation but allowed the Defendant to renew its argument after a full record was developed in 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.

Source of image:  Photo by Lucas Van Oort on www.unsplash.com.

Information Not Subject To Discovery in Pennsylvania Simply Because It Is Stored Up In The Cloud

In the case of Edenfield v. ECM Energy Services, Inc., No. 999 MDA 2022 (Pa. Super. Aug. 1, 2023 Bowes, J., Lazarus, J., and Stevens, P.J.E.) (Op. by Bowes, J.), the Pennsylvania Superior Court reviewed a notable discovery issue and concluded that, despite the accessibility of electronic records stored by a party on the so-called Cloud, state courts cannot compel companies to documents stored on the Cloud unless those companies have a sufficient link to Pennsylvania.

In this Opinion, the Pennsylvania Superior Court was presented with the question of whether electronic records stored in the Cloud by a company without any established physical location in Pennsylvania, were located within Pennsylvania for purposes of Title 15 solely by virtue of being theoretically accessible from Pennsylvania.

In ruling that the documents did not have to be produced, the Pennsylvania Superior Court upheld a decision out of the Lycoming County Court of Common Pleas in which that court had denied a Petition to Compel Inspection of Corporate Books and Records of an entity. 

The Superior Court noted that to rule otherwise would, for example, permit the courts to compel any business utilizing Quick Books or similar services to have to produce records in Pennsylvania simply because those records were stored in the Cloud and despite the fact that there was no other connection between that company and the Commonwealth of Pennsylvania. The court stated that such a result was not contemplated by the law at issue.

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

Source: Article: “Despite Accessibility, Storing Corporate Records in the Cloud Does not Create Pa. Jurisdiction, Superior Court Rules.” By: Riley Brennan. Pennsylvania Law Weekly (Aug. 2, 2023).

Company That Charged For Work Event At Which Alcohol Was Served Can't Be Held Liable Under Social Host Liability Theory

In the case of Klar v. Dairy Farmers of America, Inc., No. 29 WAP 2022 (Pa. Aug. 22, 2023 Wecht, J.), the Pennsylvania Supreme Court revisited precedents from over a half of a century that have imposed civil liability arising from the provision of alcohol to visibly intoxicated persons with respect to persons and entities licensed to engage in the commercial sale of alcohol while those precedents have also limited the liability of non-licensees and “social hosts.”

In this matter, Pennsylvania Supreme Court affirmed the decisions of the lower courts that held that an organization which hosted an event at which alcohol was provided, but which organization was not a liquor licensee, could not be held liable for injuries caused by a guest who had become intoxicated at the event and was later involved in a motor vehicle accident.

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

Source: Article - “Company That Charged For Work Event Can’t Be Held Liable for Guest’s Drunken Driving, Says Pa. High Court, By: Riley Brennan of the Pennsylvania Law Weekly (Aug. 24, 2023).

Plaintiff Cannot Sue Tortfeasor's Liability Carrier

In the case of Nails v. Amguard Ins. Co., No. 3-23-CV-00557 (M.D. Pa. July 10, 2023 Carlson, M.J.), the court granted a Defendant’s Motion to Dismiss in a case involving a pro se Plaintiff who was involved in a motor vehicle accident after which she sued not only the alleged tortfeasor but also the tortfeasor's liability insurance carrier.

The court ruled that Pennsylvania law does not permit a tort Plaintiff to maintain a direct cause of action against the alleged tortfeasor’s insurance carrier.  Magistrate Judge Carlson, quoting Holovich v. Progressive Specialty Ins. Co., 600 F. Supp. 3d 572, 579 (E.D. Pa. 2022), wrote:

“It is well-settled that under Pennsylvania law, an injured party has no right to directly sue the insurer of an alleged tortfeasor unless a provision of the policy or a statute create such a right.” Apalucci v. Agora Syndicate, Inc., 145 F.3d 630, 632 (3d Cir. 1998) (citations omitted); see also Vella v. State Farm Mut. Auto. Ins. Co., Civ. No. 1:17-CV-1900, 2018 WL 1907335, at *2 (M.D. Pa. Apr. 23, 2018) (“In Pennsylvania, it is well-settled law that a third-party claimant cannot bring a cause of action for bad faith against an alleged tortfeasor's liability insurer.  (citing Strutz v. State Farm Mut. Ins. Co., 415 Pa.Super. 371, 609 A.2d 569, 570–71 (1992) and Brown v. Candelora, 708 A.2d 104, 108 (Pa. Commw. 1998))).

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Simply put, “absent a permissive statute or policy provision, a tort claimant cannot maintain a direct action against the insurance company.” Mallalieu-Golder Ins. Agency, Inc. v. Exec. Risk Indem., Inc., 254 F. Supp. 2d 521, 525 (M.D. Pa. 2003)."

Judge Carlson went on to note in the Nails case that "[g]iven this settled tenet of Pennsylvania law, Nails may not maintain a direct action against Amguard based upon the alleged negligence of one of its policyholders."

Rather, the Plaintiff may only legally sue the tortfeasor. In this regard, the Plaintiff can rely upon the tortfeasor’s insurance company to satisfy its contractual obligation to pay the claim against the insured tortfeasor.

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.

Can You Keep That Engagement Ring?

In the case of Campbell v. Tang, No. 1006 EDA 2022 (Pa. Super. July 13, 2023 King, J., Sullivan, J., and Stevens, P.J.E.) (Op. by Sullivan, J.), the Pennsylvania Superior Court ruled that a party who broke off a wedding engagement was not required to return engagement jewelry because the party who had proposed marriage was still in a valid marriage at all times during the parties’ dating relationship and engagement.

The court stated that, under these facts, the wedding engagement at issue was void ab initio, thereby rending the gift an unconditional gift.

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 image:  Photo by Pixabay on www.Pexels.com.