Plaintiff Permitted to Proceed With Allegations of Recklessness At Pleadings Stage in a MVA Case

In the case of Morrisey v. Beamer, No. C-48-CV-2023-00333 (C.P. North. Co. Nov. 28, 2023 Beltrami, J.), the court overruled a Defendant’s Preliminary Objections asserted in a motor vehicle accident case relative to the claims of recklessness.

In so ruling, the court relied upon the Pennsylvania Superior Court decision in the case of Monroe v. CBH2O, LP, 286 A.3d 785 (Pa. Super. 2022), in which that court noted that a claim of recklessness is permitted at the pleadings stage whenever a claim of negligence is asserted given that, under Pa. R.C.P. 1019(b) provides that claims regarding the “conditions of mind may be averred generally.”

The court noted that the Defendant retained the right to move for partial summary judgment on the issue of recklessness at the close of discovery if such allegations were not supported by the facts.

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

Judge Nealon Addresses Procedural and Substantive Complaint Issues Regarding a Complaint in Med Mal Case

In the case of Healey v. Scranton Hospital Company, LLC, No. 23-CV-1793 (C.P. Lacka. Co. Nov. 20, 2023 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed various Preliminary Objections filed by Defendants in a medical malpractice case.

In part, the hospital Defendant filed Preliminary Objections in the nature of a demurrer to the Plaintiff’s vicarious liability claims for failing to identify its alleged agents by name and failing to specify their agency authority.

The hospital Defendant also filed Preliminary Objections against the Plaintiff’s corporate negligence claims for (1) neglecting to allege its notice of the claimed institutional deficiencies, and (2) asserting the corporate liability claims against it and a Co-Defendant LLC in the same Count in the Complaint.

Also at issue in this case was a demurrer filed by the hospitalist and the LLC employer to the vicarious liability and corporate negligence claim asserted against those parties. 

Those Defendants also sought to strike the Plaintiff’s allegations of gross negligence as well as allegations against “Defendants” as asserted in lump sum fashion in certain paragraphs without clarifying which particular Defendant is being referenced, among other issues.

The Court issued the following decisions in this Opinion.    

Judge Nealon noted that, since it is not necessary for a Plaintiff to establish a right to recover on a vicarious liability claim based upon the negligence of a specifically named employee, the demurrers to the Plaintiff’s vicarious liability claims premised on the conduct of unnamed agents was overruled.

The court otherwise also ruled that, while the Plaintiffs had alleged a viable claim for corporate liability against the hospital and the LLC employer, the Plaintiff had failed to state a cognizable corporate negligence claim against the individual hospitalist Defendant for institutional negligence.  As such, the corporate liability claim against the hospitalist was dismissed.

The court additionally sustained the Preliminary Objections regarding the combined allegations asserted in single pleadings against multiple Defendants..  The court ruled that the corporate liability claims against the hospital and the LLC employer were required to be alleged in self-sufficient separate Counts under separate, distinct headings in the Complaint in order to comport with Pa. R.C.P. 1019(a) and 1020(a).

The court additionally ruled that, pursuant to 40 P.S. §1303.505(b) and (c), the Plaintiff’s allegations of “gross” negligence were immaterial to the Plaintiff’s malpractice burden of proof and, as such, would be stricken as impertinent matter in accordance with Pa. R.C.P. 1028(a)(2).

The court otherwise noted that blanket references to “Defendants” in lump sum fashion in certain paragraphs in the Complaint were improper.

The Plaintiff was afforded an opportunity to amend the Complaint to correct these errors and other errors identified above.

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

Superior Court Upholds Defense Verdict Reached By Jury After 14 Minutes in Med Mal Case

In the case of Corey v. Wilkes-Barre Hospital Co., LLC, No. 507 MDA 2021 (Pa. Super. Dec. 11, 2023 en banc) (Op. by King, J.) (Olson, J. Concurring) (Kunselman, J. Dissenting), the Pennsylvania Superior Court addressed numerous issues in a medical malpractice claim in which a nonsuit, in part, had been granted and in which issues were raised with regard to the verdict slip and the short length of time that the jury deliberated before announcing its defense verdict.

With respect to the Plaintiff’s post-trial challenges in regards to the identity of the parties on the verdict slip, it was noted that the trial court had confirmed that Plaintiff’s counsel failed to object to the verdict slip when the trial court had provided an opportunity to the attorneys, immediately prior to the slip being provided to the jurors, to note any objections. The trial court had indicated that, when asked if counsel was satisfied with the verdict slip, Plaintiff’s counsel answered in the affirmative.

On appeal, the Plaintiff had also complained that the jury returned a verdict within only fourteen (14) minutes after the case had been given to the jury for a decision. The Plaintiff argued that the Plaintiff did not believe that the short conference by the jury resulting the verdict should had been considered “deliberations.”

The appellate court disagreed and rejected the Plaintiff’s request that the case be remanded to the trial court for an evidentiary hearing to determine whether an improper outside influence, or other misconduct, influenced the jury’s deliberation. The appellate court found that the trial court had correctly determined that the Plaintiff failed to offer any good reason to justify further inquiry into the validity of the verdict.

Anyone wishing to review a copy of this decision may click this LINK.  The Concurring Opinion by Judge Olson can be viewed HERE.  The Dissenting Opinion by Judge Kunselman can be viewed HERE.


Source: Article – “Rejecting Verdict Slip and Jury Deliberation Challenges, Superior Court Affirms Nonsuit for Northeast PA Hospital” By Riley Brennan of the Pennsylvania Law Weekly (Dec. 12, 2023).

THE 2023 TORT TALK TOP TEN

THE 2023 TORT TALK TOP 10

10. Service of Process


There were many decisions handed down over the past year by trial and appellate court judges confirming that a case will be dismissed if a plaintiff does not make good faith efforts to complete service of original process on the actual defendant in the matter in accordance with the case of Lamp v. Heyman and its progeny. To access a number of these decisions as summarized on the Tort Talk Blog (www.TortTalk.com), use this Link: http://www.torttalk.com/search/label/Service%20of%20Process

9. COVID-19 Pandemic Coverage Issues Persists


Over the summer, the Pennsylvania Supreme Court issued an Order granting 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 cases, the Superior Court reached opposite conclusions regarding whether insureds should be allowed business interruption insurance coverage for losses stemming from the COVID-19 pandemic. It remains to be seen which way the Court will go.


To review the Tort Talk post on COVID-19 business interruption coverage cases, click this LINK.

8. Household Exclusions

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

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


To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

7. Consent To Jurisdiction By Registering to do Business


In June of 2023, the Pennsylvania Supreme Court was overturned by the United States Supreme Court in the case of Mallory v. Norfolk Southern Railway Co., ___ U.S.___ (June 27, 2023) in a 4-1-4 plurality decision.

In Mallory, the United States Supreme Court upheld the Pennsylvania law requiring out-of-state companies that register to do business in Pennsylvania to agree to submit to jurisdiction in Pennsylvania courts on “any cause of action” filed against the company, even when the alleged injury occurred outside of Pennsylvania. The lower decision by the Pennsylvania Supreme Court was vacated and remanded.

Under a more recent Order, the Pennsylvania Supreme Court then punted on the issue and remanded the issue all the way back down to the trial court for consideration

To review the Tort Talk post on this case, click this LINK



6. Social Host Liability


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 held that an organization hosting 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.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

5. Workers Compensation – Employer Immunity


In the case of Franczyk v. Home Depot, Inc., No. 11 WAP 2022 (Pa. April 19, 2023) (Op. by Wecht, J.) (Todd, C.J, concurring), the Pennsylvania Supreme Court addressed immunity provided to employers in personal injury civil litigation matters given the employer’s exposure to worker’s compensation recoveries. The Pennsylvania Supreme Court confirmed that the worker’s compensation system is a compromise that, in exchange for a no-fault insurance system, employers are granted immunity from tort liability for workplace injuries. The court reiterated that, where worker’s compensation is available, such compensation is the exclusive remedy for an injured party against their employer.

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

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.


4. Stacking Waiver Forms


In the case of Franks v. State Farm Mut. Auto. Ins. Co., No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.), the court ruled that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived through a waiver form executed by the insured, did not require the insurance carrier to secure a renewed expressed waiver of stacked coverage under §1738(c).

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

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.



3. The Dying Doctrine of Forum Non Conveniens


In the case of Brooks v. Griffy, No. 22-CV-3250 (C.P. Lacka. Co. Oct. 18, 2023 Nealon, J.), Judge Terrance R. Nealon of the Lackawanna County Court of Common Pleas addressed a Petition for Transfer under the doctrine of forum non conveniens and denied the same.

In his Opinion, Judge Nealon addressed the current status of the law regarding this doctrine and noted that the law had been chipped away at by recent decisions calling into question the continued validity of the arguments made under this doctrine, especially in light of the need to show that the jurisdiction chosen by the Plaintiff was oppressive and vexatious.

The court pointed to the continued use of advanced communication technologies in litigation matters, such as Zoom, has served to substantially lessen any burdens or hardships that may be associated with participating in any given litigation at any location.

As such, the Defendant’s Motion to Transfer the case to Montgomery County based upon the doctrine of forum non conveniens was denied.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK

2. Test for Proper Venue Revised


In the case of Hangey v. Husqvarna, No. 14 EAP 2022 (Pa. Nov. 22, 2023), the Pennsylvania Supreme Court held that a defendant company’s percentage of sales, in of itself, is no longer sufficient to determine whether or not a company has sufficient business in a particular jurisdiction for venue purposes. Accordingly, under yet another plaintiff-friendly decision by the Pennsylvania Supreme Court, a business that only derives a small portion of its revenue from a particular county in Pennsylvania may still be sued in that county.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

1. Punitive Damages

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 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.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

What to watch for in 2024:

Keep an eye out for a decision from the Pennsylvania Supreme Court on the viability of the Regular Use Exclusion in the case of Rush v. Erie Insurance Exchange.

The Pennsylvania Supreme Court is also expected to issue a decision providing guidance for COVID-19 Business Interruption coverage cases.

Superior Court Finds No Duty Owed By Methadone Clinic to Public At Large Where Client Allegedly Drove Intoxicated and Caused Injury

In the case of Ritz v. Ramsay, No. 1024 WDA 2022 (Pa. Super. Nov. 14, 2023 Bender, P.J.E., Stabile, J., and Pellegrini, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court ruled that the trial court properly dismissed and executor’s action against medical center parties that allegedly gave methadone to a driver of a car who allegedly then killed the decedent in a Christmas Eve, 2016 motor vehicle accident.  The decedent was out for a run when he was hit and killed.  

The Superior Court found that the trial court did not err in declining to impose a duty of care on the medical center parties, particularly where there was no relationship between the decedent and the medical center parties.

According to the Opinion, the decedent was struck by a car and killed after the driver, who was a patient at the Defendant medical center’s methadone clinic, had allegedly received a larger than normal dose of methadone on the day of the accident.

The records show that the driver’s post-accident blood and urine samples also showed the presence of marijuana and alprazolam in addition to the methadone.

According to the Opinion, the medical center parties were alleged to have been aware, based upon prior blood tests, that the driver repeatedly used non-prescription anti-anxiety drugs and marijuana during the course of his methadone treatment, which conduct was in violation of the directives of the methadone center.

The Plaintiffs asserted that the medical center parties knew or should have known that given the driver a larger than normal dose of methadone posed an unreasonable risk to the public. As such, the Plaintiff sued for negligence under the wrongful death statute.

The Pennsylvania Superior Court noted that there were no allegations that the medical center parties knew that the driver drove while intoxicated as a result of his ingesting of other substances along with his methadone.  As such, the appellate court agreed that the foreseeability of this tragedy was too remote to impose a duty under Pennsylvania law.

The appellate court additionally noted that imposing liability in this regard would not serve the public interest in view of the lack of foreseeability and given the strong public interest in the rehabilitation of users of elicit drugs through, in part, methadone clinics.

The Superior Court also ruled that the trial court was within its discretion not to allow the Plaintiff the right to amend given that, under the facts, circumstances, and the law of this case, any effort at filing an Amended Complaint would have been futile.

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


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

Trial Court Provides Instruction on Scope of Ability of Deponent's Attorney To Properly Interject at a Deposition

In the case of Early Bird Carwash, Inc. v. Piermattei, No.  (C.P. Lyc. Co. Sept. 18, 2023 Linhardt, J.), the court granted in part and denied in part discovery motions filed by both parties in a legal malpractice action.

Of note, the court granted the Plaintiffs’ Motion to Reconvene a Deposition after defense counsel was found to have obdurately and acrimoniously interrupted Plaintiffs’ attorney’s initial attempt at a deposition by way of the defense counsel engaging in continual, repeated objections that were found to be meant to obstruct the course of the deposition.

The court noted that a deposition is meant to be a question-and-answer conversation between the deposing attorney and the witness.

With that in mind, the court noted that the deposing lawyer is entitled to pursue a chosen line of questioning without improper interjections by the witness’s attorney.

Judge Linhardt noted that an attorney for the deposition witness should not act as an intermediary by interpreting questions, deciding which questions the witness should answer, and/or by helping the witness to formulate answers.

In this matter, the court found that the attorney for the Defendants repeatedly and continuously interrupted the deposition testimony by interposing objections, instructing the witness not to answer questions, and otherwise providing commentary on the questions presented and the exhibits being utilized.

The court admonished that the defense attorney’s clear intent was to prevent Plaintiffs’ attorney from pursing his line of inquiry and the deposition from taking its natural course.

The court found that the conduct of defense counsel was obdurate but not necessarily acrimonious, and that defense counsel’s conduct ultimately prejudiced the Plaintiffs by repeatedly and unnecessarily interrupting the deposition.

Accordingly, the court directed that the Defendants submit to a repeat deposition. Defense counsel was ordered to bear the cost of the same. The court also ordered the Defendants should present one or more witnesses properly prepared to answer questions on the designated topics. Additionally, counsel for the Defendant was told to keep interjections to a minimum. The court did decline to issue an award of attorney’s fees as a sanction.

In another Order in this decision, the court ordered the Defendant to provide responses to the Plaintiffs’ requests for discovery of an electronic records, or to explain the unavailability of the associated electronic storage media.

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


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

Plaintiff's Failure to Present Sufficient Evidence of Notice in a Slip and Fall Case Leads to Entry of Summary Judgment

In the case of Livshitz v. Designer Brands, Inc., No. 22-CV-3355 (E.D. Pa. Nov. 14, 2023 Murphy, J.), the court granted summary judgment in a slip and fall case after finding that the Plaintiff failed to present any evidence to suggest that the landowner had actual or constructive notice of an allegedly dangerous condition.

The court noted that allegations of a lack of inspections by the landowner do not amount to affirmative evidence on the issue of notice.

The court noted that, while a Defendant may have failed to follow company procedures may be evidence of a breach of a duty, there must first be a duty of care owed and, according to this court, a duty of care requires actual or constructive notice of an allegedly dangerous condition.  Given that no evidence of notice was presented, summary judgment was granted.

This decision is also notable in that court rejected the Plaintiff’s allegations of video tape spoliation as being irrelevant because there was no evidence that there were any surveillance cameras inside the restroom stall where the Plaintiff allegedly fell.

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


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

Source of Image:  Photo by Galen Crout on www.unsplash.com.

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Summary Judgment Granted in Slip and Fall Case - No Notice Proven

In the case of Smalis v. Home Depot U.S.A., Inc., No. 20-CV-1235 (W.D. Pa. Dec. 7, 2023 Hardy, J.), the court granted summary judgment in a slip and fall case. The court noted that the record did not have any evidence to suggest that the landowner had actual or constructive notice of an alleged spill.

In this decision, the court noted that a property owner has no duty to constantly monitor the premises and seek out any possible dangers.

In this case, the Plaintiff failed to produce evidence of the alleged duration of the alleged spill. The court noted that, even if the cleaning times were disputed, there was still no affirmative evidence as to how long any alleged spill allegedly existed.

As stated, the court granted summary judgment in favor of the landowner.


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.

Motion to Remand Granted After Allegation of Fraudulent Joinder Was Rejected by Federal Court

In the case Harris v. Miller’s Ale House, Inc., No. 23-CV-03349 (E.D. Pa. Nov. 13, 2023 Baylson, J.), the federal court granted a motion to remand a slip and fall case back to state court where the Plaintiff was found to have asserted valid claims against a store manager who resided in the same jurisdiction of the Plaintiff thereby defeating diversity of the parties necessary for federal court jurisdiction.

This case arose out of a slip and fall. The Plaintiff sued Miller’s Ale House, Inc. along with the manager on duty at the time of the Plaintiff’s incident.

The Plaintiff and the manager of the Ale House were both residents of Pennsylvania.

After the Defendant removed the case the federal court, the Defendant conceded that the manager was a resident of the same jurisdiction as the Plaintiff but argued that his joinder was fraudulent because of his involvement in the case simply arose from the course and scope of his employment with the landowner Defendant.

The Plaintiff moved to remand the case back to state court. The court granted the Plaintiff’s Motion to Remand after finding that the Defendants failed to meet their burden of proof with respect to the allegation of a fraudulent joinder. In this regard, the federal court found that negligence claims asserted against a manager of a retail establishment arising out of a slip and all incident were colorable under Pennsylvania law.

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 (Nov. 28, 2023).

CORRECTED LINK To Yesterday's Post On Delay Damages Case

Yesterday's Tort Talk post was on the case of Sewell v. Riordon Materials Corp., Nov. Term 2018, No. 01642 (C.P. Phila. Co. Aug. 7, 2023 Kennedy, J.), in which the trial court issued a Rule 1925 Opinion addressing issues of delay damages following a motor vehicle accident trial and requested the Superior Court to reverse the trial court's decision in this regard.

Here is a corrected LINK  to that case so that you can review the same.  

Apologies for any confusion or consternation caused.

Trial Court Requests a Reversal of its own Decision on Motion for Delay Damages

In the case of Sewell v. Riordon Materials Corp., Nov. Term 2018, No. 01642 (C.P. Phila. Co. Aug. 7, 2023 Kennedy, J.), the trial court issued a Rule 1925 Opinion addressing issues of delay damages following a motor vehicle accident trial.

To its credit in this case, the trial court issued a Rule 1925 Opinion confirming that it had erred in originally denying the Plaintiff’s Motion for Delay Damages and that, after a review, it was the opinion of the trial court that the proper decision would have been to have granted the motion.

It is noted that the proper rule number for the delay damages rule is Pa. R.C.P. 238.

In any event, the trial court noted that, under subsection (b) of the applicable rule, there are two (2) instances where time for calculating delay damages should be excluded, that being where a Defendant made a written offer that has complied with the requirements of the rule and where the Plaintiff caused the delay of the trial.

Here, the trial court indicated that it had erred in denying the Plaintiff’s Motion for Delay Damages because neither of the exceptions applied.

Notably, the court noted that, when the defense counsel issued the settlement offers, neither of the emails presenting the offers contained the express clause required by the delay damages rule confirming that the offers would continue for at least ninety (90) days or until the commencement of trial.

The trial court also noted that, given that the jury’s award exceeded the settlement offer of the Defendant by more than 125%, that exception did not apply as well.

With regards to allegations by the defense that the Plaintiff caused the delay of the trial by, in part, relying upon arguments relative to the COVID-19 pandemic, the trial court noted that the appellate courts of Pennsylvania have held that, although the COVID-19 pandemic obviously impacted the case and prolonged the case due to a judicial emergency, such delays in that regard are not to be held against the Plaintiff relative to a claim or Motion for Delay Damages.

The court also rejected the defense attempt to blame some of the delays on the request by the Plaintiff’s attorney for a new trial date due to conflicts. The court rejected this argument and noted that the scheduling of a trial is set by the court regardless of any such claims of conflicts and that a movement of the trial in that regard would not be held against the Plaintiff.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 29, 2023).

Source of image:  Photo by John Guccione on www.pexels.com.

Pennsylvania Supreme Court Addresses No Felony Conviction Rule In Terms of Personal Injury Lawsuits

In the case of DiNardo v. Kohler, No. 22 EAP 2022 (Pa. Nov. 22, 2023)(Maj. Op. by Todd, C.J.)(Dougherty, J., Concurring), the Pennsylvania Supreme Court addressed the “no felony conviction recovery” rule and, in the process, affirmed an Order of the Superior Court barring a medical malpractice claim presented on behalf of a Plaintiff who pleaded guilty to four (4) courts of first degree murder of others.

According to the Opinion, the Plaintiff, who allegedly suffered from various mental health issues, confessed to killing four (4) individuals and pled guilty to first degree murder.

Thereafter, that Plaintiff filed a Complaint against his treating psychiatrist and his healthcare providers, alleging that his criminal conduct was the result of his psychiatrist’s grossly negligent treatment. The Plaintiff sought compensatory damages along with indemnification for the judgment levied against him by his victims’ families, along with counsel fees.

The Pennsylvania Supreme Court noted that the “No Felony Conviction Recovery” rule prohibits an individual from benefiting or profiting, via the civil laws, from his own criminal conduct.

After a review of the case before it, the Pennsylvania Supreme Court affirmed the Order of the Superior Court finding that the rule barred the Plaintiff’s medical malpractice claim presented in this case.

Anyone wishing to review a copy of this decision may click this LINK.  Justice Dougherty's Concurring Opinion can be viewed at this LINK.

Source of image:  Photo by Kindle Media on www.pexels.com.

Pennsylvania Supreme Court Reviews Coordination of Actions Rule in Context of COVID-19 Coverage Cases

In the case of HTR Restaurants v. Erie Insurance, No. 21 WAP 2022 (Pa. Dec. 8, 2023) (Op. by Wecht, J.), the Pennsylvania Supreme Court addressed Pa. R.C.P. 213.1, which allows for the coordination of actions pending in different counties that involve a common question of law fact with respect to COVID-19 business interruption coverage cases.

In this matter, the various Plaintiff-businesses that had pursued coverage claims moved for the coordination of all statewide litigation, including potential future filings.

In reviewing Rule 213.1, the Pennsylvania Supreme Court noted that the term “pending” in the rule clearly refers to the coordination of cases that have already been filed and should not be read to include future cases that are imminent or impending and that have not yet been filed.

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

Superior Court Affirms Trial Court's Denial of Defendant's Petition to Open a Default Judgment

In the case of Jacks Auto Parts Sales, Inc. v. MJ Auto Body and Repair, LLC, No. 1946 EDA 2022 (Pa. Super. Oct. 30, 2023 Olson, J., Nichols, J., and McLaughlin, J.) (Op. by Nichols, J.), the Pennsylvania Superior Court affirmed a trial court’s Order denying a Defendant’s Petition to Open a Default Judgment.

The Pennsylvania Superior Court ruled that the trial court had properly denied the Motion to Open a Default Judgment where the moving party failed to show evidence establishing that the person who accepted service of process at the moving party’s place business was not an employee or agent authorized to accept service.

The court further found that the Defendants had failed to present evidence showing that opening the default judgment was equitably justified. More specifically, the court noted that there was no evidence provided regarding what happened to the alleged service of process documentation after it was received at the Defendant’s place of business. 

Accordingly, the court ruled that the trial court did not abuse its discretion in declining an open default judgment due to the Defendants’ untimeliness in filing their Motion to Open the Default Judgment.

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

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

Federal Court Addresses Potential Liability of a Broker in a Trucking Accident Case

In the case of Allen v. Foxway Transportation, Inc., No. 4:21-CV-00156-MWB (M.D. Pa. Dec. 7, 2023 Brann, C.J.), the court issued a decision in a fatal trucking accident case holding that, under the facts presented in this case, a broker was not liable for the actions of the motor carrier or its driver both of which had been retained to deliver a shipment. However, the court that a material dispute existed on whether the broker had negligently entrusted the motor carrier with a shipment at issue.

As such, the cross-Motions for Summary Judgement by the injured party and the broker were granted in part and denied in part.

Chief Judge Matthew W. Brann’s Opinion is notable, in part, due to his review of Federal Middle District Court Local Rule 56.1 which governs the filing of a short and concise Statement of Material Facts in support of a Motion for Summary Judgment relative to facts that the moving party contends there are no genuine issues to be tried. 

In his Opinion, Chief Judge Brann provided guidance on how such Statements of Material Fact in support of a Motion for Summary Judgment should be written and how the non-moving party should properly respond to the same.

Relative to the substantive issues as to whether, under the facts of this case, the broker could be vicarious liable for the actions of the motor carrier and its driver, Chief Judge Brann reviewed Pennsylvania law regarding vicarious liability and the factors necessary to show a master-servant relationship in support of the same.

After applying those factors to the case presented, the court found that the broker in this case was not liable for the actions of the motor carrier.

The court otherwise found that the Plaintiff had failed to establish support for the allegations that Gateway had been involved in a “joint venture” with the motor carrier. As such, the broker’s Motion for Summary Judgment on this issue was granted.

However, as noted above, the court noted that the issues of negligent entrustment remained in dispute.

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

Source of image:  Photo by Josiah Farrow on www.unsplash.com.

Superior Court Rejects Unlicensed Driver Exclusion In Context of First Party Benefits Claims

In the case of Nationwide Prop. and Cas. Ins. Co. v. Castaneda, No. 1030 MDA 2022 (Pa. Super Dec. 5, 2023 Panella, P.J., Bender, P.J.E., McCaffery, J.) (Op. by Panella, P.J.), the Pennsylvania Superior Court held that automobile insurance carriers must provide mandated first party benefits and that such mandated benefits could not be the subject of the exclusions found under 75 Pa. C.S.A. §1718, including the unlicensed driver exclusion.

In this case, the injured party was operating her mother’s Nationwide insured vehicle when that vehicle was rear-ended.

Although the injured party was a permissive user of his mother’s vehicle, the injured party driver did not have a valid driver’s license at the time of the accident.

The Nationwide Insurance policy had an exclusion for first party medical benefits that applied if the injured party did not have a valid driver’s license and was neither a named insured nor a resident relative of the named insured.

In this case, because the injured party did not have a valid driver’s license, Nationwide denied the claim.

The injured party challenged the validity of the exclusion and argued that first party medical benefits were mandatory under the Pennsylvania Motor Vehicle Financial Responsibility Law.

Nationwide filed a declaratory judgment action seeking a judicial declaration that it did not have to pay the benefits under an application of the exclusion. The trial court ruled in favor of Nationwide and the injured party appealed.

On appeal, the Pennsylvania Superior Court ruled that no “unlicensed driver” exclusion was not valid in this context of first party benefits coverage which is mandated under the MVFRL.

As such, the Pennsylvania Superior Court held that the injured party was entitled to coverage for her medical expenses claims unless one of the limited exclusions allowed under §1718 applied to the claim.  The Court noted that the unlicensed driver exclusion was not listed among the limited exclusions to such coverage under §1718.   The trial court decision was therefore reversed.

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


I send thanks to Attorney Dale Larrimore of the Philadelphia law firm of Larrimore and Farnish, LLP for brining this case to my attention.

Pennsylvania Superior Court Remands Case After Finding that Testimonies of Defense Experts Were Improperly Limited By Trial Court

In the case of Bell v. O’Neill, No. 2393 EDA 2022 (Pa. Super. Nov. 16, 2023 Bowes, J., Stabile, J., Pellegrini, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court vacated a jury’s $1 million dollar verdict in favor of a Plaintiff in a motor vehicle accident matter after concluding that the defense expert witnesses were improperly precluded from testifying during the trial.

More specifically, the Superior court noted that the trial court should have allowed two (2) of the defense experts, an orthopedic surgeon, and a biomedical engineer, to testify on causation issues.

The court noted that, just as the Plaintiff’s medical expert was permitted offer opinions that the motor vehicle accident caused the Plaintiff’s alleged injuries despite minor damages to the vehicles, the defense expert should have been allowed to rebut the argument that the alleged small force involved in the accident was sufficient to have caused the extent of the injuries the Plaintiff claimed to have suffered.

The Superior Court remanded the case for a new trial on causation and damages.

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


Source: Article – “Court Nixes $1M Rear-End Collision Verdict Over Improperly Excluded Experts,” By Riley Brennan of the Pennsylvania Law Weekly (Nov. 28, 2023).

HOLIDAY GIFT FROM TORT TALK

Here is the LINK to a complimentary copy of the 162 paged 2023 Tort Talk Civil Litigation Update booklet that was created Daniel E. Cummins, Esq. for use at recent year-end Bench Bar Conferences. 

The 2023 Tort Talk Civil Litigation Update is a compilation of the most notable Tort Talk posts over the past year or so and is offered here free of charge for the readers of Tort Talk.

If you wish to review the actual Opinion of any of the cases summarized in the Tort Talk 2023 Civil Litigation Update, please simply go to www.TortTalk.com and type the case name, or the name of the Plaintiff, into the SEARCH BOX near the upper right hand corner of the blog (not the top box, the second from the top box).  That will take you to the Tort Talk post on that case, in which there should be a LINK to the actual Opinion.

I note that the PBI sells its annual Civil Litigation Update Booklet for approximately $69.00!  The Tort Talk Civil Litigation Update Booklet is FREE.

As such, to the extent you may have a desire to pay it forward in another way this holiday season, I would politely propose considering making a donation to a charity or a non-profit organization of your choice, or to Lackawanna Pro Bono or The Children's Advocacy Center, or otherwise choose to send out some act or acts of kindness this holiday season and beyond.

Thanks for reading Tort Talk and and thank you for providing me with notable cases to highlight here on Tort Talk.  All is much appreciated.

HAPPY HOLIDAYS!

Federal Court Applies Abstention Doctrine To Declaratory Judgment Action

In the case of Assoc. Ind. Ins. Co., Inc. v. 101 West Lehigh, LLC, No. 2:23-CV-03736-CFK (E.D. Pa. Oct. 31, 2023 Kenney, J.), the Motion of a necessary party/Defendant to dismiss a declaratory judgment action was denied.

The underlying matter involved a fatal shooting incident at a gas station. The Plaintiff insurance company filed a declaratory judgment action on the issue of the duty to defend or indemnify certain Defendants involved in the underlying case.

The Plaintiff insurance company included the estate of the deceased individual as a necessary party Defendant.

That necessary party Defendant filed a Motion to Dismiss pursuant to the abstention doctrine. The necessary party Defendant argued that the coverage action should be dismissed in light of the federal court’s limited discretionary authority to review insurance coverage issues where there was a pending state court proceeding that did not implicate federal interest.

This motion was denied. The federal court initially noted that it had subject matter jurisdiction based upon the diversity and the amount in controversy.

Because the federal action involve a request for declaratory relief only and involved a question of insurance coverage, the court addressed the issue of its abstention authority under the analysis set forth in Reifer v. Westport Ins. Corp., 751 F.3d 129 (3d. Cir. 2014) and State Auto Ins. Co. v. Summy, 234 F.3d 131 (3d. Cir. 2000).

Applying the factors required by those decisions, the federal court in this case initially confirmed that there was no parallel state proceeding because the state court action as focused on the issue of liability while this federal court action involved coverage questions. The federal court noted that the absence of a parallel state court proceeding favored the federal court’s exercise of its jurisdiction.

The court in this case additionally found that the application of the remaining factors weighed in favor of the federal court retaining jurisdiction over the declaratory judgment action. As such, the Motion to Dismiss was denied.

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


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

ARTICLE: A Mixed Bag: Plaintiffs and Defendants Score Victories in Law Changes in 2023

The below article of mine providing a year-end review of the notable cases and trends in Pennsylvania civil litigation law appeared in the December 7, 2023 edition of the Pennsylvania Law Weekly:


A Mixed Bag: Plaintiffs and Defendants Score Victories in Law Changes in 2023

Pennsylvania Law Weekly
December 07, 2023

By Daniel E. Cummins

Daniel E. Cummins
Cummins Law
www.TortTalk.com

Here’s a look at the notable trends and decisions in Pennsylvania civil litigation law over the past year along with a review of anticipated decisions to keep an eye out for in the year ahead.

Consent to Jurisdiction by Registration to Do Business

Over the past year, the Pennsylvania Supreme Court was overturned by the U.S. Supreme Court in the case of Mallory v. Norfolk Southern Railway, ___ U.S.___ (June 27, 2023) in a 4-1-4 plurality decision involving the validity of Pennsylvania’s “consent by registration” statute.

In Mallory, the U.S. Supreme Court upheld the Pennsylvania law requiring out-of-state companies that register to do business in Pennsylvania to agree to submit to jurisdiction in Pennsylvania courts on any cause of action filed against the company, even when the alleged injury occurred outside of Pennsylvania. The lower decision by the Pennsylvania Supreme Court was vacated and remanded.

The Pennsylvania Supreme Court thereafter punted on the issue under an order issued on Aug. 29, 2023, and remanded the question presented all the way back down to the trial court for consideration. 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.

Test for Proper Venue Revised

Just last month the Pennsylvania Supreme Court continued its penchant for changing the law in a plaintiff-friendly way by revising the test for determining proper venue by rejecting the “percentage of revenue” venue defense.

In the case of Hangey v. Husqvarna, No. 14 EAP 2022 (Pa. Nov. 22, 2023), the court determined that venue was proper in Philadelphia County even though the only 0.005% of the defendant company’s national revenue was derived from that county. As such, the Pennsylvania Supreme Court held that a defendant company’s percentage of sales is no longer sufficient, in and of itself, to determine whether or not a company has sufficient business in a particular jurisdiction for purposes of proper venue.

Accordingly, under yet another plaintiff-friendly decision by the Pennsylvania Supreme Court, a business that only derives a small portion of its revenue from a particular county in Pennsylvania may still be sued in that county. This decision is expected to keep many more civil litigation matters in Philadelphia County.

The Dying Doctrine of Forum Non Conveniens

Over the past year a number of decisions have been handed down by the trial and appellate courts of Pennsylvania that call into question the continuing vitality of the doctrine of forum non conveniens. These numerous decisions are thoroughly researched and reviewed by Judge Terrence R. Nealon in his recent opinion in the case of Brooks v. Griffy, No. 22-CV-3250 (C.P. Lacka. Co. Oct. 18, 2023 Nealon, J.).

While a plaintiff’s choice of forum for a particular lawsuit is given great weight under Pennsylvania law, a defendant does have avenues to challenge the same. One such way is by the filing of a motion to transfer venue under the doctrine of forum non conveniens under Pa.R.C.P. 1006(d)(1).

Although the term forum non conveniens is Latin for “an inconvenient forum,” in order to prevail under such a motion to transfer, a defendant cannot simply show that the venue selected by the plaintiff is inconvenient, but rather must show that the forum vexatious and oppressive from the vantage point of the defendant and the involved witnesses.

In the case of Brooks v. Griffey, a plaintiff from Chester County, Pennsylvania, who was involved in an accident with a Lancaster County tractor-trailer driver in a Montgomery County accident, filed a lawsuit against the driver and his employer, which maintained its principal place of business in Idaho and had a single facility in Lancaster County, Pennsylvania, in the Lackawanna County Common Pleas Court.

The defendant driver and his employer filed a forum non conveniens motion seeking to transfer the case to Montgomery County pursuant to Pa. R.C.P. 1006(d)(1).

In his opinion, Nealon addressed the current status of the law regarding this doctrine and noted that the law had been chipped away at by recent decisions calling into question the continued validity of the arguments made under this doctrine, especially in light of the need to show that the jurisdiction chosen by the plaintiff was oppressive and vexatious.

Notably, Nealon, who presides in what is still apparently the only county Court of Common Pleas in Pennsylvania with an innovative local rule on the use of advanced communications technology (ACT) in court proceedings, pointed to the continued use of ACT in litigation matters as lessening the burdens of the participants. The court noted that the use of ACT, such as Zoom for depositions and minor court conferences, has served to substantially lessen any hardships that may be associated with participating in any given litigation at any location.

Nealon noted that the affidavits in support of the petition filed by the defendant did not support the granting of the motion. The court found that the defendants had not established that the defendants chosen forum was oppressive or vexatious. As such, the defendant’s motion to transfer the case to Montgomery County based upon the doctrine of forum non conveniens was denied.

Social Host Liability

Over the past year, the Pennsylvania Supreme Court considered the extent to which a host of an event at which alcohol is served may be held liable for the actions of an intoxicated guest, particularly when that intoxicated guest is an employee of the host.

In the case of Klar v. Dairy Farmers of America, 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 taverns licensed to engage in the commercial sale of alcohol, as compared against those same precedents that have limited the liability of social hosts.

In this Klar case, the Pennsylvania Supreme Court, in a defense-friendly decision, affirmed the decisions of the lower courts that held that an organization hosting 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.

COVID Issues Persists

In 2023, the COVID-19 pandemic fallout continued in the form of ongoing insurance coverage litigation involving business interruption coverage policies, virus exclusions and related issues.

Over the summer, the Pennsylvania Supreme Court issued an order granting 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 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.

For those handling COVID-19 business interruption coverage issues, the Pennsylvania Supreme Court’s decisions in these matters is highly anticipated and will determine whether such claims for coverage are valid, thereby possibly ending the epidemic of these types of coverage cases.

Punitive Damages

In a pro-plaintiff decision in the case of Bert Co. v. Turk, No. 13 WAP 2022 (Pa. July 19, 2023), the Pennsylvania Supreme Court considered U.S. Supreme Court precedent in addressing the constitutionality of an award of punitive damages by a civil jury in Pennsylvania.

In the Bert case, the court reviewed the appropriate ratio calculation to be used by the courts to measure the relationship between the amount of punitive damages awarded against multiple defendants. The court declined to create a bright-line rule to determine when punitive damages are to be considered to be unconstitutionally excessive.

In this case, the jury had awarded $250,000 in compensatory damages as well as a total of $2.8 million dollars in punitive damages. The defendants asserted that this award went against U.S. Supreme Court precedent holding that punitive damages generally should not exceed 10 times the amount of a compensatory damages award.

The Pennsylvania Supreme Court determined that the defendants’ approach was an incorrect calculation. The Pennsylvania Supreme Court generally endorsed the per-defendant analysis of the ratio, instead of a per-judgment analysis, as being consistent with federal constitutional principles that require consideration of each defendant’s due process rights relative to the entry of punitive damages. According to a July 24 article by Pennsylvania Law Weekly litigation reporter, Aleeza Furman, titled “‘Sky’s the Limit’: Pa. Justices’ Punitive Damages Rulings Creates Uncertainty for Defendants,” commentators on the plaintiffs side of the bar view this decision as upholding the goals of punitive damages. In contrast, members of the defense bar noted that this decision opened a new door for unrestrained punitive damages awards while, at the same time, limiting the types of challenges a defendant can assert against such an award.

Stacking Waiver Forms

In what was considered to be a case of first impression, in Franks v. State Farm Mutual Automobile Insurance, No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.), the Pennsylvania Supreme Court issued a defense-favorable decision in holding that that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived through a waiver form executed by the insured, did not require the insurance carrier to secure a renewed expressed waiver of stacked coverage under Section 1738(c).

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

 
Household Exclusions

In the case of Erie Insurance Exchange v. Mione, No. 89 MAP 2021 (Pa. Feb. 15, 2023) (Op. by Wecht, J.), without admitting to the same, the Pennsylvania Supreme Court did an about face on the issue of the enforceability of household vehicle exclusions in automobile insurance policies. Whereas the Pennsylvania Supreme Court previously ruled in its decision of Gallagher v. GEICO that household exclusions are unenforceable across the board, in this more recent Mione decision from earlier this year, the court has now held that household exclusions do remain enforceable under Pennsylvania law in certain circumstances.

In its previous 2019 decision in the case of Gallagher, which was repeatedly described in the Law Weekly as resulting in a ‘seismic” change in the law, the Pennsylvania Supreme Court wrote “we hold that the household vehicle exclusion violates the MVFRL; therefore, these exclusions are unenforceable as a matter of law.” See Gallagher v. GEICO, 201 A.3d 131, 138 (2019). That unfortunate and flawed decision led to an unnecessary four years of upheaval and expensive litigation in this area of the law.

Although the Pennsylvania Supreme Court in the previous case of Gallagher v. Geico, and again in the case of Donovan v. State Farm, attempted to eradicate the household exclusion across the board, in this decision of Erie Insurance Exchange v. Mione, the Pennsylvania Supreme Court did an about face and distinguished and limited its previous decision in Gallagher v. GEICO and instead affirmed the lower court decision that the household exclusion was valid and enforceable.

In this Mione decision, Justice David Wecht noted that the court “reiterates today that the holding in Gallagher was based upon the unique facts before the court in that case, and that the decision there should be construed narrowly.”

 
Service of Process

There were many decisions handed down over the past year by trial and appellate court judges confirming that a case will be dismissed if a plaintiff does not make good faith efforts to complete service of original process on the actual defendant in the matter in accordance with the case of Lamp v. Heyman and its progeny. To access a number of these decisions as summarized on the Tort Talk Blog (www.TortTalk.com), use this link: https://rb.gy/4t5nrk.

Statutory Caps

In the case of Freilich v. SEPTA, No. 327 C.D. 2022 (Pa. Cmwlth. July 6, 2023) [opinion not reported], the Pennsylvania Commonwealth Court rejected a plaintiff’s challenge to Pennsylvania’s liability caps for state agencies, such as SEPTA and PennDOT. In so ruling, the appellate court upheld a trial court order reducing a $7 million stipulated jury verdict entered by a jury against SEPTA to the $250,000.00 statutory liability cap required by Pennsylvania law under 42 Pa.C.S.A. Section 8528(b).

Indications are that plaintiffs’ attorney plans to appeal the case up to the Pennsylvania Supreme Court. It remains to be seen whether the Plaintiff-oriented Pennsylvania Supreme Court will continue its judicial activism in favor of plaintiff’s causes by changing the established law or will instead make a rare showing of judicial restraint and hold that any changes to this law should come from the legislative branch of the Pennsylvania government.

Fair Share Act

Trial courts continue to split on the validity and enforceability of the dicta in the decision of Spencer v. Johnson, 249 A.3d 529 (Pa.Super. 2021), which decision contains superfluous commentary indicating that the Fair Share Act may not apply in cases where the plaintiff is an innocent victim of an accident and not contributorily negligent. This issue can routinely come into play, for example, in medical malpractice cases where a plaintiff is under anesthesia or where a plaintiff is a guest passenger in a motor vehicle that is in an accident.

This past year, in the case of Ace v. Ace, No. 6242-CIVIL-2020 (C.P. Monroe Co. Jan. 12, 2023), Judge David J. Williamson issued an opinion in a nonjury trial arising out of a shooting incident. The court addressed the import of the dicta in the Spencer v. Johnson decision relative to the applicability of the Fair Share Act in a case in which no liability is assessed to a plaintiff.

Williamson then noted that “there has been a lot of confusion recently as to whether or not defendants are subject to joint and several liability for a judgment, regardless of their proportionate share of liability.” After reviewing the history of the Comparative Negligence Act and the Fair Share Act, Williamson asserted that “It makes more sense that the legislature would have enacted this measure in all cases of multiple defendants, even where the plaintiff has no contributory negligence.”

That being said, Williamson went on to review the contrary result noted in the dicta put forth by the Pennsylvania Superior Court in its Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021) decision. Williamson noted that the rationale of the Spencer court regarding Fair Share Act “appears as dicta in the Superior Court’s decision, as it was not the direct holding” of the Superior Court.

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

In contrast, another trial court judge found no fault with the validity of the Spencer v. Johnson decision. In the case of Tucchi v. Carroll, No. CV-2018-1794 (C.P. Northumb. Co. Jan. 24, 2023), a trial court judge ruled that, pursuant to Spencer v. Johnson, 249 A.3d 529, 559 (Pa. Super. 2021), that the Fair Share Act was inapplicable given that the minor plaintiff in this matter was not found to be contributorily negligent by the jury or, in other words, was an innocent plaintiff. In a footnote in his order, the judge noted that the Spencer decision “was a precedential holding of the Superior Court after an analysis of the Fair Share Act, and not “dicta” as contended by” the defendant.”

What to Watch for in 2024

As noted above, looking ahead to 2024, litigators are anticipating how the Pennsylvania Supreme Court will rule on the issue of coverage under business interruption policies as applied to the government ordered closures of businesses during the COVID-19 pandemic.

Auto accident litigators are anticipating a decision from the Pennsylvania Supreme Court on the validity of the regular use exclusion found in automobile insurance policies. Keep an eye out for a decision in the high court in the case of Rush v. Erie Insurance Exchange.

In terms of any other anticipated events in 2024, it is noted that on May 4, 2024, the Tort Talk blog, found at www.TortTalk.com and which is utilized by civil litigators as a resource for streamlined legal research on a wide variety of civil litigation topics, will celebrate 15 years of providing free updates on the law to both the bar and the bench.

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

Punitive Damages Claims and Direct Liability Claims Against a Trucking Company Dismissed

In the case of Villagran v. Freightbull, Inc., No. 22-CV-2159 (E.D. Pa. Oct. 12, 2023 McHugh, J.), the court dismissed a Plaintiff’s claim for punitive damages after finding that the Plaintiff did not present any evidence to satisfy Pennsylvania’s high standards for punitive damages.

This matter involved a fatal trucking accident.  The Plaintiff asserted both direct and vicarious liability claims against the company that employed the trucker.

The trucking company filed a motion for summary judgment relative to the punitive damages claims and the claims of direct liability asserted against the company relative to allegations of negligent hiring and supervision.

The trucking company noted that, if the punitive damages claim was dismissed then the direct claims of liability should be dismissed as well because, in the absence of punitive damages claims, the evidence to prove direct liability was both unnecessary and prejudicial.  

The court reiterated the settled law that an entitlement to punitive damages requires that conduct go beyond any type of negligence and instead include intentional, reckless, or malicious conduct. The law also required that the Defendant have a subjective appreciation of the relevant risk.

The court additionally noted that any conduct supporting a claim for punitive damages must have a role in causing the Plaintiff’s injuries.  Factually irrelevant conduct is not enough to support a claim for punitive damages.

In this regard, the court found that, there was nothing in the record to suggest that a Defendant’s safety director’s lack of qualification was usually for a family business or was otherwise egregious.

In this case, the court noted that the alleged failure to train the driver was factually irrelevant, since trip planning had nothing to do with the accident.

It was additionally noted that a videotape of the accident refuted the Plaintiff’s claim that the Defendant’s driver did not stop at the intersection. It was noted that the video also revealed no other basis for punitive damages.

The court otherwise ruled that a majority blanket rule barring direct negligent driver hiring and supervision claims where vicarious liability is admitted and punitive damages are not at issue was too extreme of a position. The court noted that rejecting such claims only when evidence would be excessively prejudicial under F.R.E. 303 is preferable.

In this case, the direct claims of liability were dismissed as the evidence would be unduly prejudicial to the Defendant. The court found that evidence of direct corporate negligence was minimal, peripheral, and factually unrelated to the subject accident in this matter.

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


I thank Attorney James A. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Quoted in Recent Pennsylvania Law Weekly Article on Pennsylvania Supreme Court Decision in Hangey v. Husqvarna Regarding Proper Venue

'A Titanic Decision': Pa. Supreme Court's Ruling Makes Venue Challenges Harder

Daniel Cummins, managing partner of Cummins Law, called the ruling, “another victory for the plaintiff bar at the appellate court level in Pennsylvania.”

November 29, 2023 at 06:23 PM


By Aleeza Furman

Litigation Reporter

Pennsylvania Law Weekly


What You Need to Know

The Pennsylvania Supreme Court recently held that business that only derives a small portion of its revenue from a particular county may still be sued there.

The ruling makes it harder for defendants to challenge plaintiffs' choice of venue.

Defendants must now look to other factors in addition to percentage of revenue to support their challenges.

Corporate defendants have one less way to escape being sued in Philadelphia thanks to a recent ruling from the Pennsylvania Supreme Court.



The justices’ Nov. 22 decision in Hangey v. Husqvarna rejected a commonly used venue challenge, leaving plaintiffs with better odds of keeping their lawsuits where they want them.

“This is really a titanic decision in terms of venue in Pennsylvania,” said Saltz Mongeluzzi Bendesky’s Robert Mongeluzzi, who represented plaintiffs Ronald and Rosemary Hangey in the case.

The high court held that more than just a percentage of revenue is necessary to establish that the company does not perform sufficient business in a particular county to be sued there. The court ruled that if a company maintains a “constant physical presence” in a forum county and acts to further its interests there, its activities can be considered regular business.

“That means if there is an authorized dealer: game, set, match. It’s over as a matter of law,” Mongeluzzi said. He added that the analysis in the opinion established that the question of whether or not a business regularly conducted business somewhere is about the act of selling rather than a percentage of sales.

The attorney for defendant Husqvarna Professional Products, Dickie, McCamey & Chilcote shareholder Frederick Bode III, said the defendants were “disappointed with the outcome.”

Marshall Dennehey partner Michael Salvati, who was not involved in the case, said the ruling creates a significant hurdle for defendants who are challenging the venue.

Salvati and others said the percentage of revenue had been a frequently used argument for why a case should be transferred.

Salvati said the companies that stand to be the most impacted by Hangey are national or global companies that could previously argue that only a small fraction of their total sales came from a particular county.

According to Salvati, the percentage was “a factor that had previously been almost dispositive” but is now “lessened in importance.” He said the percentage of revenue remains a relevant factor, but defendants must now meet a higher standard, looking to elements such as a business’ physical presence in a county.

Anapol Weiss partner Kila Baldwin, who is not involved in the case, said that while Hangey supports a more case-by-case analysis, she expects defense lawyers will try to find other numerical tools to define regular business, such as hours a store is open or the number of employees.

But for now, she said, “it gives less ground for the defendants to argue forum shopping or venue shopping.”

‘Another Victory for the Plaintiff Bar’

Daniel Cummins, managing partner of Cummins Law, called the ruling, “another victory for the plaintiff bar at the appellate court level in Pennsylvania.”

But, as a defense attorney, Cummins isn’t celebrating the outcome.

“It’s becoming more difficult for a defendant to prevail on a petition to transfer cases to a different county,” he said.

Cummins noted that plaintiffs have also come out on top in a string of recent cases dealing with forum-related issues.

In the past year and change, the Superior Court rejected defendants’ bids to escape Philadelphia as an inconvenient forum in three different precedential rulings—two of which are currently being challenged by defendants.

Cummins said the recent trend in appellate rulings is likely to drive up caseloads in forums preferred by plaintiffs.

“One might wonder if there might come a day where every case is in Philadelphia County,” he said.

But Saltz Mongeluzzi’s Ara Avrigian, who represented the Hangeys alongside Mongeluzzi and solo practitioner Howard Bashman, contended there is nothing “untoward” about bringing a case in the Philadelphia Court of Common Pleas. Avrigian said parties are drawn to the court for its efficiency and high-quality judges.

And Bashman said the high court’s Hangey ruling also benefits companies who are filing suit.

“This decision is not just something that helps injured people,” Bashman added. “It’s something that helps all plaintiffs.”

Reprinted with permission from the [November 29, 2023 edition of the Pennsylvania Law Weekly] © 2023 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.