Thursday, December 28, 2023



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 (, use this Link:

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.

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