Superior Court Finds Trial Court Erred in Granting Dismissal For Service of Process Issues

In the case of Chappell v. Powell, No. 253 WDA 2023 (Pa. Super. Sept. 29, 2023 Bender, P.J.E., Lazarus, J., and Kunselman, J.) (Op. by Lazarus, J.), the court addressed a decision of a trial court sustaining a Defendant’s Preliminary Objections and dismissal of a Plaintiff’s Complaint in a motor vehicle accident case due to the Plaintiff’s failure to make good faith efforts to complete service.

After a review of the issues before it, the Superior Court reversed the decision of the trial court.

In its decision, the Superior Court found that the trial court erred in dismissing the Complaint due to a finding a lack of diligent efforts at service of process given that such a decision effectively contradicted the trial court’s prior implicit finding of good faith effort and due diligence when the trial court separately granted the Plaintiff’s Motion for Alternative Service.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 17, 2023).

Pleading of Federal Regulations In Trucking Case Does Not Create Federal Issue In Terms of Removal Statute

In the case of Caeser v. Greentree Transportation Co., No. 2:23-CV-03005-GAM (E.D. Pa. Sept. 13, 2023 McHugh, J.), the court addressed a Plaintiff’s Motion to Remand a fatal trucking accident case from federal court back to state court.

In the Plaintiff's Complaint, the Plaintiff cited multiple violations of regulations promulgating by the Federal Motor Carrier Safety Administration, the US Department of Transportation, and the Federal Highway Administration.

The Defendant asserted that these allegations created a federal issue thereby making this case removable pursuant to 28 U.S.C. §1331.

The federal court disagreed and granted the Plaintiff’s Motion to Remand the case back to the state court.

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 (Oct. 6, 2023).

Source of image: Photo by Jim Wilson from www.unsplash.com

Federal Court Punts On Declaratory Judgment Action Involving Insurance Coverage Questions

Ray Guy
Legendary Raiders Punter

In the case of Mesa Underwriters Spec. Ins. Co. v. Alisha Real Estate, LLC, No. 2:23-CV-01281-GJP (E.D. Pa. Sept. 7, 2023 Pappert, J.), the court granted a Defendant commercial property owner’s Motion to Dismiss or Stay the Carrier’s Federal Declaratory Judgment Action.

In this declaratory judgment action, the carrier was asserting that it had no duty to defend or indemnify a Defendant in the underlying state court personal injury action.

This federal court exercised its discretion under the Declaratory Judgment Act to decline jurisdiction where the relevant parties were all parties to the state court action and to litigate the coverage issues in the state Court of Common Pleas.

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 (Oct. 6, 2023).

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Issues of Fact Allow Strict Liability Case Involving Ladder to Proceed Forward

In the case of Kallok v. Wing Enterprises, Inc., No. 2:21-CV-00805-PLD (W.D. Pa. Sept. 19, 2023 Dodge, M.J.), a federal magistrate judge denied a Defendant’s Motion for Summary Judgment in a Plaintiff’s strict liability, negligence and breach of warranty action over a collapsed ladder.

The court found that the Plaintiff’s liability expert’s testimony was sufficiently reliable and created genuine issues of material fact as to whether or not the ladder was defective at the time of sale, whether the Defendant’s quality control procedures met the expected standard of care, and as to how the ladder was set up.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 5, 2023).

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Preliminary Objections Against Allegations of Recklessness Denied in Lackawanna County

In the case of Nasser v. Megivern, No. 2022-CV-4261 (C.P. Lacka. Co. Sept. 12, 2023 Nealon, J.), the court issued a detailed Order without Opinion overruling the Defendant’s Preliminary Objections asserted against the Plaintiff’s allegations of recklessness in a standard run-of-the-mill motor vehicle accident case.

The court relied upon the case of Monroe v. CBH20, LP, 286 A.3d 785, 799-800 & n.6 (Pa. Super. 2022) (en banc); Archibald v. Kimble, 971 A.2d 513, 519 (Pa. Super. 2009), app. denied, 989 A.2d 914 (Pa. 2010), along with a string cite of Lackawanna County cases.

Anyone wishing to review a copy of this Order without Opinion may click this LINK.

Superior Court Addresses Discoverability of Root Cause Analysis Documents in a Medical Malpractice Case

In the case of Ford-Bey v. Professional Anesthesia Services, No. 162 EDA 2022 (Pa. Super. Sept. 12, 2023 King, J., Sullivan, J., and Stevens, P.J.E.) (Op. by Sullivan, J.), the Pennsylvania Superior Court affirmed a trial court’s discovery Order requiring a hospital to produce documents to the Plaintiff in a medical malpractice action.

According to the Opinion, this medical malpractice matter arose out of complications following a wrist surgery. The Plaintiff’s decedent eventually passed away.

During discovery, the Plaintiff requested from the hospital all data and documents from a root cause analysis that was completed following this treatment. The hospital objected based on privilege and the Plaintiff moved to strike the objections.

The hospital asserted that the materials from the root cause analysis arose out of the hospital’s performance of its MCARE obligations and that §311(a) of MCARE protected such materials from disclosures in a civil lawsuit. In support of its claim of confidentiality, the hospital provided the trial court with a copy of its Sentinel Event Policy for review. The policy established the procedures for the hospital relative to the reporting of a “Sentinel Event” and provides that the hospital will conduct a root cause analysis to determine the basic, causal factors that led to the event.  The purpose of the root cause analysis was to result in an action or improvement plan and may also result in corrective actions managed through the hospital officials.

After a review of the matter, the trial court struck the hospital’s objections and ordered the hospital to produce certain documents related to the root cause analysis that was completed. The hospital then appealed.

On appeal, the Pennsylvania Superior Court affirmed.

Initially, the court reviewed whether it had jurisdiction to decide this appeal. The court decided that it could address the merits of the claims presented.

Relative to the discoverability of the documents at issue, the court noted that Pennsylvania law imposes a shifting burden of proof in disputes when deciding whether to compel the disclosures or materials over a claim of any privilege. 

More specifically, a party asserting a privilege must initially produce facts to properly invoke the privilege. Once the privilege is properly invoked, the parties seeking disclosure bears the burden of showing that the disclosures should be compelled either because the privilege has been waived or because an exception to the privilege applies. If the party asserting the privilege produces insufficient facts to invoke the privilege, then the burden will not shift to the party seeking disclosure.

Here, it was the hospital’s claim that the trial court erred in compelling the disclosure because the evidence from its policy and the depositions of the hospital officials established that MCARE protected the documents at issue relative to the root cause analysis investigation of the Plaintiff’s treatment. The hospital argued that §311(a) confidentiality provision only requires that documents, materials, or information created or prepared by a hospital official arise out of a Patient Safety Committee’s or a Governing Board’s duties to review matters under §310(b) of the MCARE Act. The hospital asserted that the documents at issue were a manifestation of information that was solely prepared or created for the purpose of compliance with the MCARE Act.

In affirming the trial court’s rejection of the hospital’s claim of privilege, the Pennsylvania Superior Court affirmed the trial court’s reliance on the Opinion of Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Venosh v. Henzes, 31 Pa. D.&C. 5th 411, 2013 WL 9593953 (C.P. Lacka. Co. Nealon, J.), aff’d, 105 A.3d 788 (Pa. Super. 2014) (Unpublished Memorandum).

In finding that §311(a) did not protect the hospital’s notes from disclosure in this matter, the Superior Court found in this Ford-Bey case that the Sentinel Event Policy relied upon by the hospital was not an implementation of the investigation or reporting requirements of MCARE. The court noted that the hospital’s policy did not even refer to MCARE and did not require the hospital’s Patient Safety Committee to receive reports from an investigation. Moreover, the hospital’s policy only called for the hospital’s Governing Board’s involvement in only limited circumstances.

The trial court in this matter additionally emphasized that the hospital did not establish that its Patient Safety Committee or Governing Board had in fact reviewed the documents from the root cause analysis in this matter.

The appellate court, again citing Venosh, concluded that, absent proof that a Patient Safety Committee or a Governing Board review the notes at issue, the confidentiality provisions of §311(a) did not apply.

The Pennsylvania Superior Court concurred with the trial court’s conclusion that §311(a) did not protect the hospital from having to disclose the notes at issue. The appellate court agreed that the hospital failed to produce evidence to demonstrate that the hospital official solely prepared or created her notes for the purpose of complying with MCARE. The court agreed with the trial court that the hospital did not present any clear evidence that the Sentinel event’s policy implemented the special requirement of an MCARE-required safety plan or that the Department of Health approved the Sentinel event policy as an MCARE-required safety plan.

In the end, the appellate court found no error of law or abuse of discretion in the trial court’s ruling that the hospital’s Sentinel event policy was not an implementation of the investigation or reporting requirements of MCARE or the trial court’s decision that the hospital was required to produce the documents in question in discovery.

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

Superior Court Addresses Business Interruption Coverage Case Related to Pandemic Closures

In the case of The Scranton Club v. Tuscarora Wayne Insurance Company, No. 238 MDA 2021 (Pa. Super. Sept. 12, 2023 Panella, P.J., Olson, J., and Kunselman, J.) (Op. by Kunselman, J.) (non-precedential)(Olson, J., Concurring), the Pennsylvania Superior Court affirmed in part and reversed in part a trial court’s decision sustaining Preliminary Objections filed by Tuscarora Wayne Mutual Group, Inc. regarding business interruption coverage issues arising out of the COVID-19 pandemic governmental closings of businesses.

In this matter, the Scranton Club was seeking a declaration that its insurance policy provided coverage for the losses sustained, including business income, during the pandemic.

In the time since the trial court’s decision was handed down, the Pennsylvania Superior Court held in the case of Ungarean v. CNA that the mere loss of the ability to use one’s property could constitute “direct physical loss of damage” to the property for purposes of business interruption insurance claims based upon governmental required closures during the pandemic.

It is parenthetically noted that, on July 13, 2023, the Pennsylvania Supreme Court granted a Petition for Allowance of Appeal in the Ungarean case, as well as another COVID-19 business interruption case with a contrary result, in order to decide the split of authority on that coverage issue.

In this case involving the Scranton Club, the Majority of the Superior Court panel affirmed the trial court’s rulings regarding the Virus Exclusion. In that regard, the trial court had denied the carrier’s request to dismiss the case as a matter of law based upon the Virus Exclusion in the policy since the Exclusion did not contain anti-concurrent causation language and, instead, used wording that required the application of an efficient proximate cause or concurrent causation standard. In this regard, the trial court found that the causation issued had to be decided by the jury rather than by the court as a matter of law.

The appellate court in this case involving the Scranton Club also affirmed the trial court’s ruling regarding the civil authority coverage. The trial court had ruled that coverage was not available to the insured under the civil authority coverage since that the required government closures due to the damage condition of neighboring properties, not the insured’s property.

However, based upon the Superior Court’s previous decision in Ungarean, the Superior Court reversed the trial court’s holding on the “direct physical loss of damage” issue. 

The trial court had held that there was no business income or building damage coverage based upon that policy provision due to the Scranton Club’s failure to allege any physical loss or damage to its property and its allegation that the virus was never present on the property.  As noted, the trial court had issued its decision based upon precedent that existed at the time that supported the trial court’s decision, with precedent has since changed.

In this case involving the Scranton Club, the Pennsylvania Superior Court re-affirmed its majority ruling in the Ungarean case that a loss of use could constitute “direct physical loss or damage” to property. As noted, this issue is set to be decided by the Pennsylvania Supreme Court.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.  The Concurring Opinion by Judge Olson can be found HERE.

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Trial Court Rules That Claim of Recklessness Must Be Supported By Facts (Monroe v. CBH2O Decision Not Cited)

In the case of Keefer v. Basinger, No. 68 of 2023 G.D. (Fay. Co. May 17, 2023 Cordaro, J.), the court addressed Preliminary Objections asserted by a Defendant against allegations of recklessness and punitive damages claims asserted in a case involving a pedestrian who was struck by a vehicle.

Relative to the punitive damages claims, the court confirmed that, under Pennsylvania law, punitive damages can only be awarded in cases where a Defendant’s conduct is deemed to be outrageous or demonstrates willful, wanton, or reckless behavior.

The court found that the facts presented in the Complaint, which included allegations of the Defendant driving at an unsafe speed and failing to apply the brakes in times, did not meet the threshold for punitive damages.  Rather, such claims were found to only rise to the level of ordinary negligence.  As such, the Defendant’s Preliminary Objections in this regards sustained.

On the separate issues raised with respect to the allegations of recklessness, the trial court in Fayette County noted that Pennsylvania follows a fact-pleading approach, meaning that a Plaintiff is required by the Pennsylvania Rules of Civil Procedure and Pennsylvania law to allege essential facts to support their claims presented.

Judge Cordaro noted that, while the Plaintiff argued in favor of a right to plead recklessness in general under Pennsylvania law, the court found that, in Fayette County, specific facts must be pled to support recklessness.

In this case, because the Plaintiff only alleged that the Defendant allegedly illegally drove at an unsafe speed, failed to exercise proper control of her vehicle, and failed to adequately apply the brakes in time to avoid a collision with the pedestrian Plaintiff, the court found that the Plaintiff’s allegations did not meet the standard for reckless behavior. 

As such, the court sustained the Defendant’s Preliminary Objections in this regard.

The court permitted the Plaintiff thirty (30) days to amend the Complaint.

Notably, this decision in Keefer v. Basinger was handed down long after the Pennsylvania Superior Court's decision in Monroe v. CBH2O, LP, 286 A.3d 785 (Pa. Super. Nov. 21, 2022)(en banc)(per curiam), in which an en banc panel of Superior Court Judges ruled that allegations of recklessness may be pled generally so long as a plaintiff also specifically alleges facts to state a prima facie claim for the tort of negligence (but see the cogent dissenting opinions issued by Judge Stabile and Judge Bender in support of the argument that, given that Pennsylvania is a fact-pleading state, outrageous facts must be pled to support a claim of recklessness).  

The Monroe decision was not cited or mentioned in this Keefer v. Basinger decision.  The court noted in its decision that the Plaintiff argued at oral argument that there was no appellate decision on the issue of recklessness.  The date of oral argument was not noted in the opinion.  The Plaintiff instead relied upon a review of the trial court decisions existing at the time.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 19, 2023).

Source of image:  Photo by Leeloo thefirst on www.pexels.com.

Court Dismisses Complaint Due To Lack of Timely Service

In the case of Vargas v. United Modular Enter. LLC, No. 2022-05051 (C.P. Bucks Co. June 30, 2023 McMaster, J.), the Plaintiff filed an appeal challenging the trial court’s Order sustaining Preliminary Objections raised by the Defendants with regards to the Plaintiff’s failure to properly complete service of a Complaint.

The court trial court determined that the Plaintiff had failed to prove that he had made good faith efforts to timely serve the Defendants and, in this Rule 1925 Opinion, recommended that the Superior Court affirm the trial court's Order.

According to the Opinion, this case arose out of a motor vehicle accident.

The Plaintiff filed a Complaint eight (8) days before the statute of limitations expired but did not attempt service until well past the thirty (30) day requirement.

The trial court reviewed the case of Lamp v. Heyman and its progeny. The court emphasized the importance of a plaintiff demonstrating good faith efforts to serve the Complaint within the required time frame.

Here, the trial court found that there is no concrete evidence produced by the Plaintiff showing that good faith efforts were made to complete service in a timely fashion. According to the Opinion, it did not appear that the Plaintiff attempted to even initiate service attempts over the five (5) months after he filed the original Complaint.

Given that the statute of limitations had effectively expired before proper service was accomplished, the court requested the Superior Court to affirm its Order sustaining of the Defendant’s Preliminary Objections.

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


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

Case Dismissed Due To Lack of Good Faith Effort to Complete Service

In the case of Wakefield v. Wal-Mart Stores East, LP, No. 10201-CV-2023 (C.P. Beaver Co. Aug. 10, 2023 Ross, J.), the court granted summary judgment in favor of a Defendant after finding that a Plaintiff could not satisfy the requirements of Lamp v. Heyman merely by providing a copy of the Complaint to a private attorney who had represented the Defendant in other cases in the past.

The court noted that such informal procedures do not assure that the Defendant will receive actual notice of the lawsuit. The court also more specifically noted that the private attorney who was provided with a copy of the Complaint was neither an employee nor an agent of the Defendant. Furthermore, that attorney did not otherwise agree to accept service on behalf of the Defendant.

The court in this matter found that such informal actions in an attempt to complete service did not represent a good faith effort to complete service.

The court additionally held that, under the current status of Pennsylvania law, in the absence of a good faith effort to complete service upon a Defendant, there is no need to consider whether or not the Defendant was prejudiced due to the failure to complete service in a timely fashion before the case could be dismissed.

The court additionally stated that failing to make a good faith attempt at service need not go so far as to constitute bad faith in order to run afoul of the statute of limitations.

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.

A Good Time For a Good Cause

Appellate Court Addresses Liability Issues Relative to Placement of Bus Stop In Pedestrian Injury Case

Bus Stop

In the case of Essington v. Monroe Co. Trans. Auth., No. 1081 C.D. 2022 (Pa. Cmwlth. July 11, 2023 McCullough, J., Dumas, J., and Wallace, J.) (Op. by McCullough, J.), the Commonwealth Court of Pennsylvania affirmed in part and reversed in part and remanded in part a trial court decision regarding the liability of certain Defendants in a case where a pedestrian was struck by a motorist after exiting from a bus at a bus stop near a residential development.

The appellate court held that, although the trial court properly ruled that PennDOT and the residential development had no control over safety conditions of a local transit authority’s bus stop, the trial court erred in granting the local transit authority summary judgment where there were allegations that the transit authority’s driver’s use of high beams allegedly blinded the other driver who struck the decedent.

The appellate court otherwise affirmed the entry of summary judgment in favor of PennDOT and the residential homeowner’s association.

The trial court had ruled that PennDOT was not liable because the real estate exception did not apply to policies or activities such as designing state roads.

The trial court had ruled that the homeowner’s association was not liable because it had no control over the bus stops and owed no duty to permit the transit authority buses to enter the development.

Anyone wishing to review a copy of this decision may click this LINK.  To view the Court's September 23, 2023 Order changing its July 11, 2023 Opinion on the case from a Memorandum Opinion to an Opinion that shall be reported, please click HERE.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 19, 2023).

Premises Liability Claim Against An Out-of-Possession Landlord Allowed To Proceed

In the case of Poplawski v. Jiunta, No. 3338 CIVIL 2023 (C.P. Monroe Co. Aug. 28, 2023 Williamson, J.), the court denied a Defendant’s Preliminary Objections to a Plaintiff’s Complaint in which the Plaintiff alleged that he was injured when a large mirror fell on him in a business leased from the Defendant landowner.

The Defendant asserted that, as an out-of-possession landlord Defendant, the Plaintiff had failed to state a cause of action against that particular Defendant.

The court noted that a Complaint must not only give notice of a claim but also summarize the essential facts at issue. 

In this case, the Complaint alleged that the Defendant was the owner of the building where the Plaintiff was a customer, that a defect existed on the property in the form of an allegedly improperly secured mirror, and that the Plaintiff suffered injury when the mirror fell. 

The court found that these factual allegations were sufficiently specific to assert a negligence cause of action against the Defendant landlord.

Judge David J. Williamson
Monroe County

While Judge David J. Williamson of the Monroe County Court of Common Pleas noted that, as a general rule, a landlord out-of-possession is not liable for injuries on a lease premises unless certain exceptions applied, he could not sustain the landlord Defendant’s Preliminary Objections in this case. The court found that it remained unclear as to whether or not any of the exceptions to the rule applied. 

As such, the court allowed the case to proceed into discovery so that there could be a determination if there were any additional facts to clarify the Defendant’s role and potential responsibility.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 19, 2023).

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

Third Circuit Rules that Federal Tort Claims Act Does Not Incorporate Certificate of Merit Requirements

In the case of Wilson v. U.S., No. 22-1940 (3d Cir. Aug. 21 2023 Chagares, C.J., Bibas, J., and Matey, J.) (Op. by Chagares, C.J.), the Third Circuit Court of Appeals ruled that a district court erred in granting summary judgment to the government based upon the failure of a pro se prisoner to produce an expert report in a medical malpractice action.

The court ruled that the Federal Tort Claims Act did not incorporate the Certificate of Merit requirement found under Pa. R.C.P. 1042.3.

The appellate court also noted that the pro se prisoner Plaintiff did not otherwise have an adequate opportunity to seek out an expert or to conduct discovery due to his circumstances as an inmate during the COVID-19 pandemic.

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


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

Summary Judgment In Favor of Ambulance Company Upheld [Non-Precedential]

In the non-precedential decision in the case of Fry v. Montrose Minute Men, Inc., No. 50-MDA-2022 (Pa. Super. July 28, 2023 Dubow, J., McLaughlin, J., and Collins, J.) (Op. by Collins, J.) [non-precedential], the Pennsylvania Superior Court sustained the entry of summary judgment entered in favor of a Defendant ambulance company in a case in which a Plaintiff alleged negligence and gross negligence against the ambulance crew members after the Plaintiff decedent passed away. 

The appellate court confirmed the lower court’s decision that the Defendant employees, acting in their capacities as a paramedics and EMTs did not demonstrate gross negligence or willful misconduct. As such, those employees, and by extension, the ambulance crew company, were absolved of any potential liability given the language of the Emergency Medical Services System Act (EMSSA), 35 Pa. C.S.A. §8101, et. seq.

Under the EMSSA it is provided that “[n]o EMS agency, EMS agency medical director or EMS provider who in good faith attempts to render or facilitate emergency medical care authorized by this chapter shall be liable for civil damages as a result of an act or omission, absent a showing of gross negligence or willful misconduct.”

As noted, the appellate court affirmed the entry of summary judgment in favor of the Defendants.

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


I send thanks to Attorney Ryan McBride of the Scranton office of Weber Gallagher for bringing this case to my attention.