Monday, July 22, 2024

Trial Courts Are Not Rubber Stamps When It Comes To Requests to Seal a Settlement

No Rubber Stamps

In the case of Moore v. JB Hunt Transport, Inc., No. 2024-CV-3773 (C.P. Lacka. Co. July 10, 2024 Nealon, J.), the court addressed the novel issue of a request by a Plaintiff’s attorney to seal the amount of a settlement in light to the alleged effect of that settlement on the potential settlement of companion cases.

This case arose out of a fatal motor vehicle collision.  According to the Opinion, several individuals were injured during the course of the accident. 

With regard to this request to seal the judicial record, the counsel for the settling Plaintiff noted that the parties had agreed that the records regarding the settlement should be sealed. The Plaintiff in this case also was requesting a sealing of the record in order to ensure that members of the public, who could potentially be jurors in the cases brought by the other injured parties, could be shielded from information regarding the settlement amount in this particular case. 

At the time of the argument and hearing on the issues presented, the settling Plaintiff’s attorney also argued that the public disclosure of the amount of the settling parties’ settlement could complicate the potential resolution of the claims being asserted by other claimants as a result of the subject accident.

In this Opinion, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the standard of review for a court faced with a Motion to Seal a Settlement in a personal injury matter.

Judge Nealon noted that to warrant the sealing of public judicial records reflecting the terms and the amount of a settlement, a party requesting the same must demonstrate that the interest in secrecy outweighs a well-settled presumption in favor of public access to judicial records. In order to satisfy a burden of proof in this regard, a party must establish that public access must be prohibited by the court in order to prevent “a clearly defined and serious injury.”

Judge Nealon noted that the sealing of court records is not a perfunctory judicial task that is automatically granted by the agreement of the parties or at the request of a party.  Rather, a sealing of court records is instead only permitted after an informed analysis of the issues presented and approval granted the court in compliance with precedent on the issue.

Here, the court found that the Plaintiff’s stated reasons in support of the request to seal the settlement did not establish the requisite “good cause” for sealing the court record to avoid a “clearly defined and serous injury.” The court also found that the Plaintiff’s stated reasons in support of its request for a sealing of the settlement did not warrant the granting of the court-sanctioned secrecy of the parties’ settlement filings and the records of the state funded judicial system.

As such, the Plaintiff’s request to seal the judicial record was denied.

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

Friday, July 19, 2024

Issues in Motion in Limine Deferred By Court Until Trial Must Be Formally Raised Again At Trial


In the case of Wingate v. McGrath, April Term 2019, No. 04637 (C.P. Phila. Co. March 28, 2024 Powell, S.J.), the trial court issued a Rule 1925 Opinion addressed to the Superior Court and requested the Superior Court to reverse the trial court’s previous decision to grant the Plaintiffs a new trial.  

The trial court made this request in this Opinion after the trial court revisited the issue and found that the Plaintiffs had waived their objections to the Defendant’s medical expert witness by failing to renew the issues raised in the Plaintiff’s Pre-Trial Motion In Limine until after that expert for the defense had testified at trial.

According to the Opinion, this case arose out of a motor vehicle accident matter. During discovery, the Defendant produced reports from medical expert who offered an opinion that the Plaintiff’s back pain complaints were unrelated to the accident.

Prior to trial, the Plaintiff filed a Motion In Limine to preclude the Defendant’s expert from testifying. The trial court issued an Order indicating that the motion would be decided at the time of trial. 

However, at trial, the Plaintiff did not restate the issues raised in their Motion In Limine until after the jury had heard the testimony from the Defendant’s medical expert. 

The jury entered a defense verdict.

Although the trial court had initially granted the Plaintiff a new trial after the entry of the defense verdict, in the post-trial proceedings, the trial court ruled in this Rule 1925 Opinion for the Superior Court's review that, under Pennsylvania law, where a decision on a Motion In Limine is deferred by the trial court until the time of trial, a party who presented such a motion is obligated to restate the issues raised at trial in order to have them formally addressed by the trial court.   According to the law cited by this trial court, the failure to re-raise the Motion in Limine issues in a timely fashion at trial results in a waiver of those issues. 

In this regard, the trial court cited to the Pennsylvania Superior Court decision in the case of Blumer v. Ford Motor Co., 20 A.3d 1222, 1223 (Pa. Super. 2011).

As such, in this Rule 1925 Opinion, the trial court requested the Superior Court to reverse the trial court Order that granted the Plaintiff a new trial.

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


Source: “The Legal Intelligencer Common Pleas Case Alert,” Law.com (June 26, 2024).

Wednesday, July 17, 2024

Superior Court Affirms Grant of New Trial Based On Counsel Persistently Asking Questions About Inadmissible Matters



In the Non-Precedential decision by the Pennsylvania Superior Court in the case of Lopez v. Crown Equipment Corp., No. 3146 EDA 2022 (Pa. Super. May 21, 2024 Dubow, J., McLaughlin, J. and King, J.) (Op. by Dubow, J.), the Court affirmed a trial court’s granting of a new trial to a Plaintiff after a verdict was entered for a Defendant in a products liability case.

On appeal, the Superior Court noted that the defense counsel’s persistent questions about matters that were inadmissible in this strict liability matter served to prejudice the Plaintiff, thus requiring a new trial.

The Superior Court noted that the trial court judge was in the best position to observe how a trial is being conducted and to determine whether statements by counsel or a witness could have a prejudicial effect on the jury.

Anyone wishing to review a copy of this Non-Precedential 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.

Tuesday, July 16, 2024

Judge Hertzberg of Allegheny County Rules That Act 6 Reductions Need Not Be Applied to Expenses for Treatment by Out-of-State Doctor


In the case of Yurek v. Bower, No. GD18012387 (C.P. Allegh. Co. July 3, 2024 Hertzberg, J.), the trial court issued a Rule 1925 Opinion following a motor vehicle accident and, as part of the post-trial issues presented, considered whether medical bills related to treatment provided to the Plaintiff by an out-of-state doctor are subject to reduction under Act 6 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. Section 1797.

According to the Opinion, following the subject accident, the Plaintiff underwent a cervical spine fusion surgery which was performed in Florida.

The case eventually went to trial and, as part of the verdict, the jury awarded $150,000.00 in past medical expenses, most of which was related to the cost of the surgical treatment that took place in Florida.

During the post-trial proceedings, one of the issues raised was the trial court’s refusal to reduce the amount of the past medical expenses award any more than down to the figure of $148,000.00.  This amount was the specific amount that was presented in evidence as to the actual cost of the surgery. 

The defense asserted that the trial court erred in denying the defense motion to mold the jury’s $150,000.00 past medical expenses award down to $9,882.00 under an application of Act 6, 75 Pa. C.S.A. §1797(a), of the Pennsylvania Motor Vehicle Financial Responsibility Law.

Section 1797 of the Pennsylvania Motor Vehicle Financial Responsibility Law allows for a recovery of medical bills at up to 110% of what Medicare would pay a provider for the same service.

According to the Opinion, at trial, Judge Hertzberg allowed the Plaintiff to introduce medical bills into evidence before they were reduced under the MVFRL.  The court noted at trial that it would allow for and consider any post-trial motions to mold any medical expenses award.   The court stated that it took this approach based upon the Superior Court’s decision in the case of Pittsburgh Neurosurgery Associates v. Danner which allowed for awards involving these types of bills to be presented at trial in full, subject to being molded in a post-trial proceeding.

In this Yurek case, the court emphasized that, during trial, the treating doctor from Florida testified that he was not licensed in Pennsylvania and that he did not perform any medical work in Pennsylvania. 

There was testimony that there were allegedly no doctors in Pittsburgh who would do the type of cervical spine fusion surgery that the Florida doctor performed on the Plaintiff in Florida. The doctor also testified that he charged $120,000.00 for performing the surgery.  An additional $28,000 was charged by the surgical center.  As such, the total expenses for the treatment performed in Florida was $148,000.

At trial, the Plaintiff also testified as to her belief that no other doctors in Pennsylvania would perform the type of surgery at issue. 

In his decision, Judge Hertzberg noted that his review of the evidence led him to conclude that, at least $148,000.00 of the $150,000.00 award of past medical expenses was related to the treatment provided by the Florida doctor. 

The judge agreed with the Plaintiff’s argument that because the Florida doctor was not a Pennsylvania licensed provider, the expenses related to the treatment provided by that out-of-state doctor was not subject to reduction under Act 6 of the Motor Vehicle Financial Responsibility Law.

Judge Hertzberg reasoned that the express language of “cost containment” provision in the MVFRL, which is applicable to medical expenses in a motor vehicle accident case, “twice references medical bill amounts ‘applicable in this Commonwealth under the Medicare program.’" 

Judge Hertzberg noted that this language also signaled to him that the statute’s application was limited to only apply to Pennsylvania licensed providers.  

In so ruling, Judge Hertzberg also reviewed a regulation regarding the act that was issued by the insurance department. Those regulations, found at 31 Pa. Code §69.11 state, in pertinent part, that the cost containment or payment limitation provisions apply to care rendered by Pennsylvania licensed providers.  

As such, Judge Hertzberg used this additional analysis to find that Act 6 reductions did not apply to the care rendered by the doctor at issue in this case where the doctor at issue was not a Pennsylvania licensed provider, where the treatment did not take place in Pennsylvania, and where the treatment rendered was not available in Pennsylvania.

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

Source: Article – “Motor Vehicle Law Doesn’t Require Reduction of Medical Bills For Procedure That Wasn’t Available in PA., Judge Rules,” By Riley Brennan of the Pennsylvania Law Weekly (July 9, 2024).


Monday, July 15, 2024

No Loss of Consortium Claims Recognized for Injury to Pets


In the case of Witters v. Smith, No. 1:23-CV-1441 (M.D. Pa. June 10, 2024 Connor, J.), the court granted in part and denied in part a Motion to Dismiss in a case involving claims of intentional and negligent infliction of emotional distress relative to the shooting of the Plaintiff's dog.

In this matter, the only injury claimed was to the Plaintiff’s dog.  In this case, members of the Pennsylvania Board of Probation and Parole allegedly entered the Plaintiff's backyard without their permission and shot their pet dog.  The Plaintiff's pursued various claims.

The court ruled the Pennsylvania law requires that both intentional and negligent infliction of emotional distress claims require that the Defendant caused some physical harm to the Plaintiffs.  Here, no physical harm to the Plaintiffs was alleged.

The court additionally ruled that the law of loss of consortium claims does not extend to the loss or injury to pets of a plaintiff.

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

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

Source of image:  Photo by Charles Deluvio on www.pexels.com.  

Monroe County Judge Awards Dog Attack Plaintiff Over $500,000 After Entry of Default Judgment

Monroe County Court of Common Pleas

In the case of Porter v. Voelkl, No. 2341-CV-2022 (C.P. Monroe Co. April 26, 2024 Zulick, J.), the court entered an award of damages in a dog bite case in favor of the Plaintiff after the Plaintiff had secured a default judgment against the dog’s owners.

Based upon the evidence presented, the court awarded the Plaintiff $502,400.00.

According to the Opinion, the Plaintiff had been knocked to the ground and injured when a loose dog attacked the Plaintiff’s dog in the parking lot of the Plaintiff's veterinarian.  As the dog fight occurred, the leash of one of the dogs wrapped around the Plaintiff and the Plaintiff was dragged around the parking lot by the leash.  The Plaintiff suffered injuries to his knee and shoulder.

The Plaintiff sought treatment for injuries to his knee and shoulder, including physical therapy, surgery and other treatment modalities. The Plaintiff also presented claims for economic damages.

After the trial, the court entered an award in favor of the Plaintiff consisting of $200,000.00 for pain and suffering, $64,800.00 for loss of earnings or earning capacity, and $237,600.00 for loss of future earnings or earning capacity.

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


Source: “The Legal Intelligencer Common Pleas Case Alert,” Law.com (June 26, 2024).

Thursday, July 11, 2024

Issues of Fact Preclude Summary Judgment in Case of Fall Through Porch Railing


In the case of Rockey v. Stearns, No. CV-2022-00791 (C.P. Lyc. Co. Feb. 29, 2024 Carlucci, J.), the court denied a Defendant’s Motion for Summary Judgment in a case where a Plaintiff allegedly fell off of a porch when the railing broke loose from a structural post and collapsed.

The court denied the Motion for Summary Judgment after finding that there were genuine issues of material fact to be considered by a jury.

More specifically, the court noted that the fact that the railing collaposed allegedly under only a light load, and given the condition of the railing as described by the Plaintiffs, there was support in the records that a jury could find that the railing was in a defective condition.

The court also noted that, the fact that the railing had been repaired earlier, and that the homeowner had owned the home for forty (40) years, supported a possible conclusion by a jury that the homeowner had either actual or constructive notice of the allegedly defective condition of the railing.

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

Source: Law.com, “The Legal Intelligencer Common Pleas Case Alert” (June 5, 2024).




Tuesday, July 9, 2024

Eastern District Court Finds Spoliation of Evidence Relative to Failure To Preserve Video After Plaintiff's Attorney Requested Preservation


In the case of Peronace v. City of Philadelphia, No. 2:23-CV-03943-KSM (E.D. Pa. April 16, 2024 Marston, J.), the court denied the city’s Motion for Summary Judgment in a prisoner’s rights case involving Monell issues.

According to the Opinion, the Plaintiff alleged that he had sustained multiple seizures while incarcerated and that the correctional officers delayed in providing him with medical assistance.

As part of this decision, the court addressed a Motion for Sanctions filed by the Plaintiff under an allegation that the prison officials intentionally failed to preserve video footage from outside of the prisoner’s cell.

The court reviewed this motion under F.R.C.P. 37(e) and found that, because the city should have known to preserve the video footage after receiving correspondence from an attorney for the Plaintiff to do so, and because there was no evidence that the city took any such steps, let alone reasonable steps to preserve the video footage, the court found that the videos were spoliated.

In terms of what sanction to impose, the court reviewed the factors set out under Rule 37(e) and ruled that, since it found that the city intentionally allowed relevant video footage to be overwritten by the video surveillance system, and considering the prejudice to the Plaintiff, the court fashioned a sanction and ruled that a jury may be instructed that the Defendant intentionally failed to preserve the disputed video evidence and that, therefore, the jury may presume that the lost video footage was unfavorable to the Defendant.

In a different portion of this Opinion, the court denied the city Defendant’s Motion for Summary Judgment after finding that issues of fact and testimonial differences existed on the case presented.

However, after finding that the Plaintiff did not submit evidence of any custom or policy of correctional officers violating inmates’ constitutional rights in the ways that the officers allegedly violated Plaintiff’s rights in this case, the court found that the city could not be held liable under the policy or custom prong of Monell. However, the court did find that the case against the city based upon an alleged failure of the city to supervise its correctional officers could proceed.

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


I send thanks to Attorney Jeffrey D. Schmidt of the Feasterville, PA law firm of Rovner, Allen, Rovner, Zimmerman and Schmidt for bringing this case to my attention.

Judge Mariani of Federal Middle District Court Addresses Trucking Accident Liability Issues


In the case of Galovich v. Morrissette, No. 3:21-CV-1523 (M.D. Pa. June 12, 2024 Mariani, J.), the court granted a partial summary judgment in a motor vehicle accident case that involved an accident between two tractor trailers on a highway.

The court noted that the Defendant’s filed Statement of Undisputed Facts presented in this case was deemed admitted due to the Plaintiff’s failure to file a response to the same as required by the local rules of court despite being put on notice of the need to file such a response.

The court otherwise ruled that there was no evidence to support the Plaintiffs’ punitive damages claim. The court noted that punitive damages are an “extreme remedy” that is only available in the most exceptional cases.

Here, the court found that there was no evidence to suggest that the Defendant driver had any subjective appreciation that anything he did was dangerous.

The court noted that a claimed violation of a traffic statute is not relevant to a driver’s subjective state of mind in assessing a claim for punitive damages.

The court additionally noted that the lack of any evidence to support punitive damages claims also barred any attempt by the Plaintiff to impose punitive damages vicariously on the driver’s employer.

The court additionally stated that an employer could not be held directly liable for punitive damages in any event.

The court also noted that a plaintiff cannot pursue a claim against an employer for negligent entrustment, hiring, supervision, or training when the employer admits that its employee was acting within the scope of employment when the accident occurred.

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

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


Source of image:  Photo by Brian Stalter on www.pexels.com.

Monday, July 8, 2024

Trial Court Requests Superior Court To Reverse Trial Court's Own Venue Ruling


In the case of Martinez v. Elsner Engineering Works, Inc., No. 230102505 (C.P. Phila. Co. Feb. 15, 2024 Anders, J.), the trial court issued a Rule 1925 Opinion in which it requested the Superior Court to reverse the trial court’s previous ruling that sustained a Defendant’s Preliminary Objections as to venue and transferred the case from Philadelphia County to York County. 

The trial court noted that, in this case, the Plaintiff sued multiple Defendants in Philadelphia County for personal injuries allegedly caused by a defective industrial product/equipment.

The Plaintiff’s Complaint alleged that one (1) Defendant designed, manufactured and sold the industrial equipment in Philadelphia County and that another Defendant was a successor-in-interest to the manufacturer.

The successor-in-interest Defendant filed Preliminary Objections and asserted that Philaelphia County was an improper venue.  In its original decision, the trial court agreed and ordered that the case be transferred to York County.

With this Opinion, the trial court concluded that, upon further review of the matter, its Order should be reversed and that Philadelphia should be found to be a proper venue for the case because a transaction or occurrence took place in Philadelphia County out of which the Plaintiff’s cause of action arose. More specifically, the Plaintiff had alleged that the original equipment manufacturer had defectively designed, manufactured, and sold the disputed equipment in Philadelphia County.

The trial court noted that it had reviewed additional case law authority that offered guidance as to whether proper venue in a particular county existed based upon business activity of a predecessor corporation of a current defendant in a matter. In that regard, the court found that a predecessor corporation’s activities could be attributed to its successor for purposes of a determination of proper jurisdiction.

As such, the trial court was now concluding that Philadelphia County was a proper venue in light of the Plaintiff’s allegations that the Defendant at issue was a successor-in-interest of the original equipment manufacturer.  The trial court, therefore, requested the Superior Court it reverse the trial court's prior decision.

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


Source: Law.com, “The Legal Intelligencer Common Pleas Case Alert” (June 5, 2024).

Source of image: Photo by Nick Fewings on www.pexels.com.

Wednesday, July 3, 2024

Trial Court Transfers Case Out of Philadelphia Under Doctrine of Forum Non Conveniens


In the case of Van Horn v. The Giant Company, No. 220303215 (C.P. Phila. Co. Nov. 13, 2023 Carpenter, J.), the court filed a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s Order granting the Defendant’s Motion to Transfer Venue on this slip and fall case from Philadelphia County to Montgomery County.

The Plaintiff filed suit after the Plaintiff fell at the Defendant’s store which was located in Montgomery Township. The Defendant filed a Motion to Transfer the case to the Montgomery Court of Common Pleas.

The Plaintiff failed to appear at the argument and the court granted the motion. A Motion for Reconsideration filed by the Plaintiff was denied.

The Plaintiff then filed a Notice to Appeal asserting that the trial court erred when it granted the Defendant’s Motion to Transfer Venue pursuant to the doctrine of forum non conveniens.

The court stated that the record before it revealed that only connection of this case to Philadelphia was that the Defendant, Giant, operated some supermarket stores in Philadelphia.

The Defendant submitted to the court some sworn affidavits from material witnesses confirming the difficulty in time commitment in terms of traveling to Philadelphia for trial.

The court found that the evidence clearly established that the hardship for the moving Defendants was more than a mere inconvenience and that there was no substantial relationship to any activities, events, or transactions in Philadelphia County.

As such, the trial court asked the Superior Court to affirm its Order transferring the case to Montgomery County under the doctrine of forum non conveniens.

Anyone wishing to review this decision may click this LINK.

Source: The Legal Intelligencer Common Pleas Case Alert” Law.com (June 12, 2024).



Trial Court Grants Preliminary Objections Asserting Improper Venue in Philadelphia County


In the case of Smith v. Rodriguez, No. 220602304 (C.P. Phila. Co. Nov. 14, 2023 Carpenter, J.), the court sustained Preliminary Objections raising improper venue and, as a result, transferred this Philadelphia County case to Northampton County.

In this Rule 1925 Opinion addressed to the Superior Court, the trial court requested an affirmance of its trial court Order sustaining the Preliminary Objections to improper venue.

The trial court reviewed the evidence and found that the Defendant’s conduct of coordinating shipments via the Philadelphia Airport or the Philadelphia Seaport was insufficient to meet the test of proper venue for Philadelphia County pursuant to Pa. R.C.P. 2179.

The court stated that there was no evidence in the record to support a finding that the Defendant did business in Philadelphia that was regular, continuous, and habitual.

The court found that venue was proper as to all Defendants in Northampton County. Given that the Plaintiff did not request another county as an alternative venue, the case was ordered to be transferred to Northampton County.

In this Rule 1925 Opinion, the trial court requested the Superior Court to affirm the trial court’s Opinion.

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

Source: The Legal Intelligencer Common Pleas Case Alert” Law.com (June 12, 2024).


Source of image:  Photo by Nick Fewings on www.unsplash.com.

Monday, July 1, 2024

Photos From Abington Heights National High School Mock Trial Champions' Trip to Meet the President

Back on Memorial Day, the National Champion High School Mock Trial Team from Abington Heights High School traveled to Washington D.C. on invitation to have breakfast in the White House with the President.  

With the Team being a bunch of kids from the Scranton area who made their name nationally by winning the National Championship in Wilmington, Delaware, it was only fitting that their next stop would be the White House.

Following the breakfast, each member of the team got to shake hands and say hello to President Biden himself, followed by a tour of the White House.  The President also asked his staff to show the team the Oval Office.

Congratulations once again to a great bunch of students from the Abington Heights High School in Clarks Summit, PA (including my son, Christopher).

Team Photo with the President


Team Photo in the Oval Office


Team Photo at the President's Podium

Court Addresses Proper Method of Serving Out-of-State Defendants


In the case of Morgan v. Compton, No. CV-22-01100 (C.P. Lyc. Co. Carlucci, J.), the court found that a pro se Defendant satisfied the three prongs required to open a default judgment entered against him on a Plaintiff’s Complaint for personal injuries.

According to the Complaint, the parties were formerly in a romantic relationship. With regards to that relationship, the Plaintiff filed a three (3) Count Complaint alleging various personal injury allegations against the Defendant, who resided in California.

The court confirmed that the Plaintiff mailed the Complaint to the Defendant by certified mail but the certified mail was returned marked “unclaimed.”

The Plaintiff then mailed the Complaint to the Defendant by regular mail, which was not returned.

Thereafter, the Plaintiff mailed the Defendant a Notice of Intention to take a Default Judgment by first class mail and certified mail. The certified mail envelope was returned as unclaimed.

No responsive pleading was filed by the Defendant thereafter. A default judgment was then entered.

When the Plaintiff requested a trial on damages, the Defendant attended a conference by telephone and advised the court that he intended to defend the case.

Thereafter, the Defendant filed a Petition to Open the Default Judgment and the court held a hearing by Zoom. The Defendant claimed that he mailed a written response to the Complaint but that filing did not appear in the court file.

Judge Carlucci ruled that Pa. R.C.P. 4003 and 4004 governed service by mail on out-of-state parties. Under those Rules, if service by mail is returned as unclaimed, then the Plaintiff must make service by another means that does not include ordinary mail.

The court found that, at the time the default judgment was entered, the court lacked jurisdiction over the Defendant due to a lack of any completion of service of process.

The court also found that the Defendant had promptly filed a Petition to Open a Default Judgment, had explained the reasons for the delay due to the improper service, and had alleged not only a defense of improper service under Rule 403 but had also denied the allegations in the Complaint.

As such, the court granted the Defendant’s Petition to Open the Default Judgment and the ordered the Defendant to file an Answer within twenty (20) days.

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


Source: Law.com, “The Legal Intelligencer Common Pleas Case Alert” (May 22, 2024).

Source of image:  Photo by Abstrakt XXcelence studios on www.pexels.com.

Thursday, June 27, 2024

Crashworthiness Test Applied to Golf Cart in Accident Case


In the case of Suisi v. JH Global Services, Inc., No. 10604-2015, C.A. (C.P. Lawr. Co. Jan. 23, 2024 Hodge, J.), the court addressed issues arising out of injuries sustained by a Plaintiff during a golf cart accident.

According to the Opinion, the golf cart was designed by Defendant, JH Global, and sold to a licensed dealer. Prior to its sale, the golf cart was modified by the dealer with a lift kit designed and sold by another Defendant.

In this matter, the court addressed a Motion for Summary Judgment filed by the manufacturer of the golf cart. 

According to the Opinion, the accident occurred when the Plaintiff was driving the golf cart on a roadway when the components of the steering mechanism, which were altered by the lift kit, failed.  The Plaintiff crashed and the Plaintiff was thrown approximately thirty (30) feet from the golf cart.

The Defendant filed a Motion for Summary Judgment on the grounds that there was allegedly no support for a claim against JH Global as the designer of product that was impermissibly altered by a dealer and where the designer’s original parts were not the parts that failed during the course of the accident.

The Plaintiffs also subsequently filed a Motion for Summary Judgment asserting that the record should demonstrate that the Defendants should have had knowledge that their carts were being modified and sold by their dealers that the Defendant designer did not adequately monitor and reprimand those actions, and that there was no sufficient warning within the warranty itself to convey the dangerous potential results of those modifications. The Plaintiff additionally asserted that the design of the cart invited modifications without appropriate safety mechanisms.

The court applied a 3-factor test for a defective design claim: whether a product could be designed to be safer, whether a design failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner, and if the designed caused the injury, whether the Plaintiff could demonstrate that a challenged feature outweighs the risk inherent in the design.

The court also applied the crash worthiness of a motor vehicle test to the golf cart as a matter of first impression. 

In this regard, the court noted that the crash worthiness of a motor vehicle test required the Plaintiff to prove (1) that the design was defective and that an alternative, safer and practical design existed and could have been incorporated at that time, (2) the injuries the Plaintiff would have received had the alternative design been used, and (3) what injuries were attributable to the defective design.

Here, the court found that the Plaintiff could not identify or offer an available alternative cart design that would have prevented the Plaintiff’s injuries. The alleged defect was that the cart enabled modifications that it was constructed to handle. The court noted that he Defendant’s warranty instructions said that the cart should not be modified.

The court found that a design that permitted modification of a catastrophically flawed lift kit was unintended and unforeseeable. As such, the court found that the Defendant was not responsible for manfuracturing each golf cart to withstand modifications and noted that the Defendant made a golf cart with additional safety measures when it is lifted, but the original purchaser did not buy that model.

As such, the court found that the design defects alleged by the Plaintiff were without merit.

On the claim of an inadequate warning of the possible consequences of modifying the golf cart, the court stated that the Plaintiff was required to provide proof that the lack of warning rendered the cart unreasonably dangerous and that it was approximate cause of the injury. The court denied summary judgment on the failure to warn claim, finding that this claim presented issues to be resolved by the jury.

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


Source: Law.com: “The Legal Intelligencer Common Pleas Case Alert” (May 8, 2024).\

Source of image:  Photo by Cristina Ann Costello from www.Pexels.com.


Pro Se Plaintiff Allowed Right To Amend Claims


In the case of Raynor v. Comcast Corp., No. 24-1842 (E.D. Pa. May 6, 2024 Kearney, J.), the court addressed jurisdictional issues in a case filed by a pro se Virginia citizen who recently came to believe that he is God.

The Plaintiff swore that the 1998 film The Price of Egypt was the story of his life and that movie producers made the film without his permission. The Plaintiff sued Comcast Corporation and a movie studio under civil rights, copyright infringement and right to privacy claims.

The court found that the Plaintiff’s Complaint was deficient in many respects but allowed the Plaintiff leave of court to attempt an Amended Complaint to pled a basis for subject matter jurisdiction. The court also noted that, if the Plaintiff wishes to pursue a claim under civil rights law, more facts were required.

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

I send thanks to Attorney Walt McClatchy of the Philadelphia law firm of McClatchy Law for bringing this case to my attention.

Wednesday, June 26, 2024

Demurrers to Medical Malpractice Complaint Overruled


In the case of Polanco v. Lehigh Valley Health Network, Inc., No. 2023-CV-1001 (C.P. Lacka. Co. June 7, 2024 Nealon, J.), the court addressed various Preliminary Objections filed in a medical malpractice case.

This case involved a case brought by the parents of a child reportedly suffering from cerebral palsy and brain damage due to alleged medical malpractice by various Defendants.

The Defendants filed Preliminary Objections on various grounds including a demurrer to the parents’ vicarious liability claims, allegations of reckless conduct, and claims for punitive damages.

The hospital Defendant also raised challenges to the legal sufficiency of the parent’s vicarious liability claim due to the parents’ failure to identify the hospital’s agents by name and to specify their agency authority.

All of the Preliminary Objections asserted by the various Defendants were overruled by the court.

Generally speaking, the court found that the Plaintiff had alleged specific facts to support the claims presented. The court also found that the factual allegations in the Complaint clearly informed the various Defendants of the claims being asserted, summarize the key facts supporting those claims, and furnished adequate notice so as to enable the Defendant to file a responsive pleading.

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

Issues of Fact Results In Reversal of Entry of Summary Judgment in Medical Malpractice Case


In the case of Azaravich v. Wilkes-Barre Hospital Company, LLC, No. 44 MDA 2023 (Pa. Super. June 5, 2024 Lazarus, J., Nichols, J., and Stevens, J.) (Op. by Nichols, J.), the court reversed a summary judgment that was entered by the trial court by the Plaintiff in a medical malpractice case involving a suicide by the Plaintiff’s decedent.

According to the Opinion, the Plaintiff decedent was taken to the Wilkes-Barre General Hospital where he checked himself into the emergency room after calling the police and expressing suicidal thoughts. After evaluations by different medical providers, the decedent, during which one of which interactions, the decedent indicated that he did not have any intent to harm himself, and that he wanted outpatient treatment, the decedent was released. Unfortunately, two (2) days later, the decedent committed suicide.

The decedent’s estate filed claims for medical negligence against the Defendant hospital and other medical providers.

At the summary judgment stage at the trial court level, the court had granted the Defendants’ Motion for Summary Judgment and denied the Plaintiff’s Cross Motion for Summary Judgment.

On appeal, the Pennsylvania Superior Court noted that issues of fact existed on the claims presented such that the case should have been allowed to proceed to a jury.

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


Source: Article – “Superior Court Revives Medical Negligence Suit Against Wilkes-Barre General Hospital Following Discharged Patient’s Suicide,” By Riley Brennan of the Legal Intelligencer (www.law.com June 7, 2024).

Monday, June 24, 2024

Applicability of Jerk and Jolt Doctrine Addressed by Court


In the case of Thomas v. SEPTA, June Term, 2020 No. 1431 (C.P. Phila. Co. Feb. 7, 2024 Powell, Jr., J.), the court addressed the applicability of the “jerk and jolt” doctrine in a case involving a Plaintiff who fell on a SEPTA bus when the bus stopped abruptly and her leg was caught in a baby stroller that was in the aisle.

The court generally noted the jerk and jolt doctrine applies as an exception to sovereign immunity when an individual testifies that they were injured when a car or bus jerked suddenly or violently. Under this doctrine, the Plaintiff must show that the jerk or jolt had an extraordinarily disturbing effect on other passengers or that the manner or occurrence of the accident or its effect on the Plaintiff inherently established the unusual or extraordinary character of the jerk or jolt.

In this Rule 1925 Opinion addressed to the Superior Court, the trial court stated that, in this case, the Plaintiff testified that the stroller caused her to fall after the bus driver slammed on the brakes and the Plaintiff’s foot got caught in the stroller.

The trial court concluded that the jerk and jolt doctrine did not apply and that it was up to the jury to otherwise decide if SEPTA was negligent in deciding whether the bus was safe to operate with the aisle obstructed.

In its Rule 1925 Opinion, the trial court requested the Commonwealth Court to affirm its decision that the jerk and jolt doctrine did not apply and that the trial court had not abused its discretion in denying SEPTA’s Motions for Judgment Notwithstanding the Verdict entered by the jury.

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


Source: Law.com: “The Legal Intelligencer Common Pleas Alert” (May 15, 2024).




Friday, June 21, 2024

Plaintiff's Claim of Two Impacts Helps To Defeat Summary Judgment Motion in Chain Reaction Accident Case


In the case of Akbar v. Glover, No. 10572-CV-2023 (C.P. Erie Co. May 22, 2024 Ridge, J.), the court denied a Motion for Summary Judgment filed by a Defendant driver that was the last car at the end of a chain reaction accident.

According to the Opinion, the Plaintiff was rear-ended by Defendant in the car behind the Plaintiff. 

The second Defendant then came along and rear-ended the first Defendant. 

The Plaintiff alleged a chain reaction and asserted that the first Defendant was caused to hit the rear of the Plaintiff’s vehicle a second time after that first Defendant was rear-ended by the second Defendant. Both Defendants were named in the lawsuit.

The second Defendant filed a Motion for Summary Judgment asserting that the Plaintiff did not show a prima facie case of that Defendant’s negligence. 

The second Defendant asserted that the Plaintiff admitted that he did not see the second Defendant's vehicle before the impact and that, therefore, the Plaintiff could not establish that there was a second collision with her vehicle caused by the second Defendant. That Defendant asserted that the fact that the Plaintiff allegedly “experienced” an alleged second impact was not enough.

The court denied the second Defendant's Motion for Summary Judgment. 

In doing so, the court pointed to the Plaintiff’s statement that she felt two (2) impacts. 

Moreover, the court noted that the first Defendant testified that there was no definitely no second impact caused solely by that first Defendant.

The record before the Court also showed that the second Defendant admitted that they did not know whether the collision with the first Defendant had caused the second impact with the Plaintiff's vehicle.

Finding that there were issues of fact to be decided by a jury, the judge denied the Motion for Summary Judgment.

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

I send thanks to Attorney Brandon R. Keller of the Pittsburgh law firm of Ainsman Levine, LLC for bringing this case to my attention.


Source of image:  Photo by Burak the Weekender on www.pexels.com.

Thursday, June 20, 2024

Federal Court UIM Bad Faith Claim Dismissed Where Plaintiff Did Not Plead Sufficient Facts


In the case of Hampton v. Progressive Insurance Company, 2:24-CV-01011-MAK (E.D. Pa. May 21, 2024 Kearney, J.), the court granted a Motion to Dismiss a Plaintiff’s bad faith claims and claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Law in a UIM case.

According to the Opinion, the Plaintiff secured the $15,000.00 liability limits from the third party tortfeasor and then pursued this UIM claim.

After the UIM carrier offered $1,000.00 in settlement, the Plaintiff filed a breach of contract action that included claims for statutory bad faith and unfair trade practices claims.

The court ruled that the Plaintiff’s bad faith claim failed where the Plaintiff failed to plead sufficient facts alleging any unreasonable conduct by the carrier or any facts that would support an inference of unreasonableness with respect to the carrier’s settlement offer.

The court otherwise stated that the Plaintiff failed to identify specific actual omissions by the Defendant carrier that were unreasonable or indicative of bad faith. Rather, the Plaintiff only made conclusory allegations that the Defendant’s settlement offer below is UIM policy limits demonstrated bad faith. The court stated that the Plaintiff did not pled any specific facts with regards to how the Defendant carrier evaluated the UIM claim or any facts that would support an inference that the $1,000.00 settlement offer was unreasonable.

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


Source: Law.com, “The Legal Intelligencer Federal Case Alert” (June 13, 2024).


Source of image:   Photo by Mikhail Nilov on www.pexels.com.

Federal Court Rules that Plaintiff Must Plausibly Identify the Seller of the Product in the Complaint


In the case of McKnight v. Amazon.Com Inc., No. 23-1449 (E.D. Pa. May 14, 2024 Pratter, J.), the court granted in part and denied in part a Motion to Dismiss.

The case arose out of a claim that the Plaintiff allegedly suffered injuries from using a mole cream on his scalp.

The late Judge Pratter noted that, in reading the Plaintiff's Complaint, the Plaintiff purchased the mole removal cream from Amazon.com or, if not Amazon, then Wal-Mart, or Target, or eBay.  

In this products liability case, the court found that the Plaintiff could not validly allege that he bought the same item from four (4) different manufacturers.

The court found that the claims against the lead Defendant were barely plausible since the Complaint alleged that various Defendants delivered the product.

As to the other three (3) alleged sellers, the court found that no proper facts were pled. The court stated that an allegation of “more likely than not” is not an allegation of a fact.

The federal district court reaffirmed the rule of products liability cases that a Plaintiff must identify the maker of the allegedly defective product in the pleadings.  Any alternative pleadings must still meet the general plausibility standards.

This decision is also notable for the fact that the court ruled that Pennsylvania law does not recognize a duty to recall or retrofit products. As such, the recall-related allegations in the Complaint were stricken.

In this decision, the federal court also noted that there is no separate cause of action for recklessness under Pennsylvania law.  The Complaint included a claim of "Negligence and Recklessness."  The Court noted that there is no cause of action for Recklessness in and of itself under Pennsylvania law.

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

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

Federal Court Strikes Affirmative Defenses Having No Basis in Fact



In the case of DeSandies v. Encore Group (YSA), LLC, No. 2:24-CV-01044-JDW (E.D. Pa. April 19, 2024 Wolson, J.), the court addressed affirmative defenses filed by a Defendant in a federal court matter and determined that a Rule 11 sanction was appropriate given that certain defenses asserted by a defense counsel were not supported by the facts of the case.

According to the Opinion, the Defendant filed an Answer that included an affirmative defense relative to an allegation regarding the statute of limitations which the court deemed to be invalid on its face on the basis of the pleadings of the parties. 

After the Defendant chose not to amend but instead defend its Answer and Affirmative Defenses, the court rejected the defense position and imposed a Rule 11 sanction, striking all of the Defendant’s affirmative defenses from its Answer but otherwise allowing the defense the ability to seek leave of court to amend its affirmative defenses for which the defense had a good faith basis.

This case arose out of allegations under the American for Disability Act. The Defendant’s Answer included ten (10) affirmative defenses, one of which was a statute of limitations defense.

The court reviewed the pleadings and concluded that the assertion of a statute of limitations defense was merely a prophylactic allegation rather than being validly based upon some claim by Plaintiff that was barred by the statute of limitations.

The court ordered the Defendant to either file an Amended Answer in which it would only assert those defenses for which it had a good faith basis or to otherwise file a Memorandum explaining why its Answer should be not stricken as in violation of F.R.C.P. 11(b).  As noted, the Defendant elected to defend its Answer rather than amend.

Thereafter, the court concluded that the Defendant’s affirmative defense on the statute of limitations was patently unmeritorious or frivolous and thereby warranted the imposition of sanctions.

The Defendant claimed that discovery could later support the defense of the statute of limitations that the Defendant therefore desired to preserve its defense in its pleadings.

The court rejected that reasoning, observing that Rule 11 does not countenance the assertion of affirmative defense based on what another party might assert in the future, either as to claims or testimony.

The court stated that, if the Defendant concluded that the Plaintiff eventually took some action that changed the scope of the claim presented, then the Defendant’s remedy would be to seek leave of court to amend its Answer to assert a new affirmative defense at that later date. The court otherwise reaffirmed its decision that it was not an option to assert affirmative defenses initially in a prophylactic fashion with no factual basis for doing so.

In the end, the court determined that the improper assertion of the affirmative defenses warranted the imposition of sanctions because such practice unnecessarily expand discovery and made it more difficult to resolve cases. Judge Wolson also noted that, just as a Plaintiff was not entitled to assert claims that lacked any basis, a Defendant may not assert affirmative defenses that lacked any basis.

The court deemed that the appropriate sanction would be to strike all of the Defendant’s asserted affirmative defenses, without prejudice to the Defendant’s ability to seek leave court to amend its Answer to include affirmative defenses for which the defense had a good faith basis.

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


Source: Law.com: “The Legal Intelligencer Federal Case Alert” (May 16, 2024).

Tuesday, June 18, 2024

Pennsylvania Supreme Court Addresses The Client Exception to Pa.R.C.P. 4003.6 Regarding Discovery Sought From a Treating Physician



In the case of Mertis v. Oh, No. 31 MAP 2023 (Pa. June 18, 2024)(Op. By Mundy, J.), the Pennsylvania Supreme Court had previously granted allowance of appeal to consider the application of Pennsylvania Rule of Civil Procedure 4003.6, which provides:

Rule 4003.6. Discovery of Treating Physician

Information may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter. This rule shall not prevent an attorney from obtaining information from

(1) the attorney’s client,

(2) an employee of the attorney’s client, or

(3) an ostensible employee of the attorney’s client.

In this case, the Court was tasked with determining whether the first exception to Rule 4003.6 (client exception) permits an attorney to obtain information outside the discovery process from one of the plaintiff’s nonparty treating physicians, who becomes the attorney’s client after another attorney in the same law firm became previously engaged to represent a named defendant physician in the same medical malpractice action.

The Court concluded that Rule 4003.6 precludes a law firm representing a defendant treating physician from obtaining information outside the discovery process from a nonparty treating physician by subsequently entering into an attorney-client relationship with the nonparty treating physician, we affirm the Superior Court.

Anyone wishing to review the Majority Opinion may be viewed at this LINK.  The Concurring Opinion may be viewed at this LINK.


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

Pennsylvania Bar Association and Philadelphia Bar Association Issue a Joint Formal Opinion on the Use of Artificial Intelligence (AI) in the Legal Profession

Here is a LINK to a Joint Formal Opinion issued by the Pennsylvania Bar Association and the Philadelphia Bar Association on May 22, 2024 regarding advice on the use of Artificial Intelligence (AI) in the legal profession.

The Opinion itself notes that it is "advisory only" and is not binding on the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court.  The Opinion further notes that the Opinion only carries such weight as an appropriate reviewing authority may choose to give it.

Generally speaking, the Opinion recommends that attorneys be aware of, and competent with, the use of AI in the legal profession.  The Opinion recommends that those in the legal profession check the veracity of all information generated through the use of AI, including citations to legal authority.  The Opinion also cautions that client confidentiality should be protected at all times.

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

Jurisdiction and Venue Issues Addressed in Insurance Coverage Action


In the case of Franko v. USAA, No. 2023-CV-1996 (C.P. Lacka. Co. May 31, 2024 Nealon, J.), the court addressed a coverage action relative to the theft of an allegedly covered vehicle. After the carrier denied coverage, the insured filed a lawsuit for breach of contract and bad faith liability.

The carrier filed Preliminary Objections asserting a lack of subject matter jurisdiction due to the policy’s form selection clause that limited legal actions to a court and county and state where the covered person resided at the time of the of the accident. The carrier also filed a Preliminary Objection asserting lack of personal jurisdiction based upon the allegations of the Complaint. Also asserted were improper venue objections along with a legal insufficiency of the bad faith claim.

Judge Nealon ruled that the policy’s form selection clause was inapplicable under the language of the policy given that the Plaintiff’s “comprehensive loss” claim arose from the deliberate “theft” of his vehicle, rather than an unintentional “accident.”

The court additionally ruled that, by obtaining a certificate of authority to conduct insurance business in Pennsylvania, the carrier had voluntarily consented to general personal jurisdiction in Pennsylvania.

The court additionally found that the allegations of the Complaint, and the exhibits attached thereto, stated a cognizable bad faith claim against the carrier.

With regards to the venue issue, the court directed the parties to conduct venue discovery and to resubmit the challenge to the court for a decision thereafter.

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

Judgment on the Pleadings Granted Based on Expiration of Statute of Limitations


In the case of Leventry v. Vrabel, No. 23-CV-3022 (C.P. Cambria Co. May 13, 2024 en banc), the court granted a Defendant’s Motion for Judgment on the Pleadings in a fall down case.

According to the Opinion, the Plaintiff was cutting a tree branch on the Defendant’s property when he fell approximately thirty (30) feet from a ladder. The Plaintiff alleged that his injuries were caused by negligence by the Defendant.

After the pleadings were closed, the Defendant filed a Motion for Judgment on the Pleadings arguing that the applicable two (2) year statute of limitations had expired and that the Plaintiff’s claim was thereby time barred.

According to the record before the court, it was undisputed that the Plaintiff missed the deadline set by the statute of limitations for a personal injury claim based on negligence by one (1) day.

Plaintiff’s counsel noted that the delay was the result of mailing out the Complaint to Cambria County Prothonotary too close to the deadline.

Given that the Plaintiff did not file the lawsuit within the statue of limitations, the court granted the Motion for Judgment on the Pleadings.

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

I send thanks to Attorney Michael T. Della Vecchia of the Law Office of Mezzanote, Hasson & Sichok for bringing this decision to my attention.

Thursday, June 13, 2024

Motion To Amend to Add Claims of Recklessness/Punitive Damages Due to Truck Driver Using Headset Denied


In the case of Legions v. Abdurasulov, No. 4545-CV-2022 (C.P. Monroe Co. March 8, 2024 Williamson, J.), the court denied a Plaintiff’s Motion to Amend his Amended Complaint to reinstate a claim for punitive damages and allegations of recklessness and reckless indifference.

According to the Opinion, this matter arose out of a motor vehicle accident involving a tractor trailer. 

The court had previously ruled that allegations of reckless conduct pled the Plaintiff in earlier versions of the Complaint did not meet the minimal pleading requirement to sustain a cause of action for punitive damages. In this Opinion, it was indicated that the parties had completed certain aspects of discovery and the Plaintiff was attempting to have the claims of recklessness and the claims for punitive damages reinstated.

The Plaintiff asserted that dashcam footage from the Defendant tractor trailer’s truck allegedly showed that the Defendant truck driver had failed to stop for an adequate amount of time at a red light and also that the truck driver was allegedly distracted by speaking, via a headset in his right ear, to someone on the phone at the time of the accident.

The court agreed with the Defendant that the issues raised by the Plaintiff with regards to whether or not the truck driver had stopped or did not stop long enough at a red light had been previously rejected as being reckless conduct rising to the level of punitive damages.

As such, with this Opinion, the court addressed the issue of whether the Defendant tractor trailer driver acted recklessly by using a headset to speak with someone while driving.

After reviewing the law regarding punitive damages generally along with certain cases addressing the issue of whether a claim of punitive damages is appropriate when a driver is speaking on telephone at the time of the accident, the court ruled that the Plaintiff’s Motion to Reinstate the Claims of Recklessness and Punitive Damages would be denied. The court ruled that, under the facts of this case, driving a tractor trailer while speaking through a headset did not rise to the level of “willful, wanton, or reckless” conduct so as to allow an amendment of the pleadings as requested.

The court ruled that the evidence revealed that the driver was using a hands-free earpiece in his right ear, which device did not obstruct his view while driving. It was emphasized that the truck driver did not even have his hands on a cell phone at the time of the accident. The court otherwise ruled that the act of simply talking while driving at the time of an accident does not rise to the level of reckless conduct.

Accordingly, the court ruled that the Plaintiff’s claim for punitive damages is not supported by the evidence gathered during discovery. Accordingly, the motion was denied.

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

Source of image:  Photo by Brett Jordan on www.unsplash.com.

Kickball Injury Claims Against School Kicked Out of Court

In the case of Turner v. Lower Merion School District, No. 657 C.D. 2023 (Pa.Cmwlth. May 10, 2024 Wojcik, J., Wallace, J., Leavitt, S.J.)(Op. by Wallace, J.), the court affirmed the trial court’s decision in a personal injury case arising out of a kickball game at a school.   

The Commonwealth Court held that the Plaintiff’s lawsuit did not fall within the real property exception to governmental immunity where the Plaintiff’s claims stemmed from an injury caused by personalty rather than realty. More specifically, the case involved a temporary kickball base that was not affixed to the ground and which slid out from under the high school student during a physical education class.   


As such, the Commonwealth Court affirmed the trial court's entry of a judgment on the pleadings in favor of the Defendant based upon governmental immunity and kicked the case out of court.


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


Source:  Law.com, “The Legal Intelligencer State Appellate Case Alert” (May 29, 2024)

Gist of the Action Doctrine Applied to Sustain Preliminary Objections


In the case of Spiritrust Lutheran v. Wagman Constr., Inc., No. 572 MDA 2022 (Pa. Super. April 23, 2024 Stabile, J., Dubow, J. and McCaffery, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court addressed issues surrounding Preliminary Objections raising, in part, the gist of the action doctrine.

With regards the validity of Amended Complaints, the Superior Court reaffirmed that, once an Amended Complaint is filed, the original Complaint becomes a nullity and is considered null and void.

The court also reaffirmed the rule that matters not raised in Preliminary Objections may not be considered by the trial court sua sponte.

With respect to the gist of the action doctrine, the Pennsylvania Superior Court reaffirmed that this doctrine precludes Plaintiff from recasting ordinary breach of contract claims as tort claims. More specifically, the Plaintiff is not permitted to pursue a claim of negligence where the alleged duty breached by the Defendant arises from the parties’ contract.

Here, the court ruled that, since the Plaintiff’s negligence claim repeated as the basis for negligence the same averments alleging a breach of contract, the negligence claims were properly barred by the gist of the action doctrine.

The court also noted that the services allegedly negligently performed by the Defendant were those provided in the parties’ contract.

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


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

Tuesday, June 11, 2024

Demurrer Asserted by Officers/Agents of Corporate Defendants Denied in Premises Liability Action



In the case of Bell v. S.W. Krauss, LLC, No. 2023-CV-1578 (C.P. Lacka. Co. May 1, 2024 Gibbons, J.), the court issued an Opinion in which, in part, overruled Preliminary Objections against individual Defendants who affiliated with a corporate Defendant in a personal injury matter.

According to the Opinion, the case arose out of an incident during which a Plaintiff was at a nightclub establishment in the early morning hours as a result of which she was allegedly hit by a stray bullet while she was allegedly located in the parking lot allegedly due to a dispute in the parking lot on the premises.

The Plaintiff sued various corporate entities as well as certain individuals who allegedly had relationships with those corporate entities.

The individual Defendants filed Preliminary Objections seeking to be dismissed by virtue of a demurrer.

Certain of the individual Defendants asserted that they were entitled to be dismissed because the Plaintiff’s Complaint failed to assert that those Defendants had acted with “misfeasance,” which is a requirement for negligence actions against corporate officers and agents.

Judge James A. Gibbons
Lackawanna County


Judge Gibbons reviewed the law in this regard and noted that, in general, an officer or agent of a corporation who takes no part in the commission of an alleged tort committed by the corporation is not individually liable to third parties for such a tort. 

However, an officer or agent of the corporation may be held liable tort under a “participation theory,” which states that the participating individual is subject to liability as an actor, not as an owner or officer. In order to impose liability under a participation theory under Pennsylvania law, a Plaintiff must establish that the individual officer or agent engaged in misfeasance rather than mere non-feasance.

The court agreed with the Plaintiff’s argument that the Complaint sufficiently pled a negligence cause of action against the individual Defendants as possessors of the property where the Plaintiff was injured, although not necessarily as corporate officers or agents.  As such, the individual Defendants demurrers were overruled.

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