Friday, April 19, 2024

Summary Judgment Granted in MVA Case Where Plaintiff Had Seat Belt Off and Defendant Driver Stopped Short


In the case of Lucykanish v. Flurer, No. 2545-CV-2022 (C.P. Monroe Co. Feb. 1, 2024 Williamson, J.), Judge David J. Williamson granted summary judgment to a Defendant driver in a motor vehicle accident case in which the Plaintiff was a passenger in that Defendant’s vehicle.

According to the Opinion, the Plaintiff was a rear seat passenger in the Defendant’s truck when another passenger dropped her cell phone in the rear footwell. The Plaintiff removed her seat belt to crawl around in the footwell to look for the phone.

At the same time, another vehicle improperly passed the Defendant’s truck on the right and then cut back into the Defendant’s lane.  In order to avoid a collision, the Defendant forcefully applied the truck’s brakes, which allegedly resulted in the Plaintiff striking her head on the truck’s center console.

After discovery, the Defendant filed a Motion for Summary Judgment arguing that the Plaintiff could not demonstrate that he acted negligently in operating his vehicle and that there was no proximate causation established by the Plaintiff with respect to the Defendant’s actions and the Plaintiff’s alleged injuries.

Judge Williamson granted the Motion for Summary Judgment and held that the Plaintiff failed to demonstrate that the Defendant acted negligently or that any alleged negligence on the part of the Defendant was a proximate cause of the Plaintiff’s injuries.

The court noted that the evidence developed during discovery confirmed that the Defendant braked his truck forcefully in order to avoid a collision with another vehicle that had improperly tried to pass the Defendant on the right and then attempted to cut back into the Defendant’s lane of travel. The court noted that Defendant driver’s actions were meant to protect the entire vehicle from a potentially serious motor vehicle accident. The court found that the Plaintiff’s alleged injury, that occurred while the Plaintiff was crawling around the floor in the back seat area, unrestrained, did not impute negligence to the Defendant when the urgent need unexpectedly arose to hit the brakes in a forceful fashion.

The Plaintiff otherwise attempted to argue that the Defendant was negligence per se by speeding in a construction zone. The court noted that this argument failed because, even if the Defendant had violated the Motor Vehicle Code as alleged by the Plaintiff, the Plaintiff had still failed to show that the Defendant’s alleged speeding was a proximate cause of the injury.

The crux of the Plaintiff’s claim was that the Defendant had braked too hard or too late. The court stated, however, that the force that one applies the brakes of a vehicle is not grounds for a finding of a negligence under circumstances of this case.

Rather, Judge Wiliamson noted that, here, the Plaintiff would have not been injured if she had simply stayed in her seat with her seat belt on. The court noted that the Plaintiff failed to explain why she had to crawl around the footwell of a moving vehicle, let alone one that she would later claim was driving allegedly dangerously fast.

Overall, the court emphasized that the Defendant had acted appropriately under the circumstances in order to avoid an accident. Accordingly, the court agreed with the Defendant that the Plaintiff had failed to prove negligence or that any alleged negligence on the part of the Defendant was the alleged proximate cause of the Plaintiff’s injuries.

As noted, summary judgment was granted and the case was dismissed.

Anyone wishing to review this decision may click this LINK.

Source: “The Legal Intelligencer Common Pleas Case Alert,” at Law.com (April 4, 2024).

Wednesday, April 17, 2024

Judge Nealon Reviews Pennsylvania Law on Class Actions


In the case of Chase v. Kriger Construction, Inc., No. 2021-CV-5174 (C.P. Lacka. Co. Feb. 9, 2024 Nealon, J.)., Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the current status of Pennsylvania law relative to certain aspects of class action.

Among the issues reviewed by the court were a request for a certification of a class action in accordance with the Pennsylvania Rules of Civil Procedure, an approval of a class action settlement, and a ruling on the attorney’s fees allowed.

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

Monday, April 15, 2024

Continuing Violations Doctrine Does Not Save Civil Rights Claim From Statute of Limitations Defense Under Facts Presented


In the case of Sharr v. City of Scranton, No. 3:23-CV-00826-JFS (M.D. Pa. March 13, 2024 Saporito, C.M.J.), Chief Magistrate Judge Joseph F. Saporito, Jr. granted a Motion to Dismiss in a civil rights action brought by three (3) retirees against their former employer, The City of Scranton, relative to issues surrounding their monthly pension benefit payments that were reduced by The City.

The Plaintiffs had presented a claim that The City had violated their Fourteenth Amendment Due Process and Equal Protection Rights and had presented a 42 U.S.C. §1983 civil rights action.

The Defendant, City of Scranton, moved to dismiss the action for failure to state a claim upon which relief may be granted under an argument that the Plaintiffs’ claims were barred by the applicable statute of limitations.

The Plaintiffs attempted to argue that the time within which they could file a lawsuit was extended by the continuing violations doctrine. 

The Plaintiff contended that each reduced monthly pension benefit payment paid by The City constituted another in a series of allegedly continuing unlawful acts, all of which, when taking together, comprised an ongoing continuing practice of allegedly violating the Plaintiffs’ constitutional rights.
Chief Mag. Judge 
Joseph F. Saporito, Jr.
M.D. Pa.

The court reviewed the law of the continuing violation doctrine and found that the Plaintiffs’ arguments did not meet the requirements of that doctrine. 

 The court found that the Plaintiffs’ claims were instead barred by the statute of limitations because the Plaintiffs were aware of their alleged injury at the time the alleged injury occurred well beyond the two (2) state of limitations applicable to civil rights actions.

As such, the court granted the Defendant’s Motion to Dismiss. Moreover, the court dismissed the action without leave to amend as the court found that it was clear from the facts alleged that any attempt to file an Amended Complaint would be futile as a matter of law.

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

Thursday, April 11, 2024

Carrier Permitted to Deny Coverage Due to Non-Permissive Use



In the case of State Farm Mutual Automobile Insurance Company v. Hamilton, No. AD 2020-10 (C.P. Crawf. Co. Feb. 12, 2024 Stevens, J.), the court ruled that State Farm was not required, based upon the facts presented, to provide coverage to a Defendant under the relevant insurance policy for an incident that occurred given that the party at issue was not authorized to be driving the insured’s vehicle on the date of the incident and, therefore, did not qualify as an insured under the liability coverage at issue. 

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

I send thanks to Attorney Joseph Hudock of the Summers McDonnell law firm in Pittsburgh for bringing this case to my attention.

Summary Judgment Denied in an Alleged Black Ice Slip and Fall Case


In the case of Hicks v. DEPG Stroud Associates, No. 0807-CV-2021 (C.P. Monroe Co. April 2, 2024 Williamson, J.), the court denied a Motion for Summary Judgment in a “black ice” slip and fall case.

According to the Opinion, the Plaintiff pursued this slip and fall litigation against a shopping center owner and its snow removal contractor.

According to the Opinion, it had snowed in the area three (3) days before the incident. The weather on the day of the incident was clear. The record before the court indicated that the snow removal contractor had completed snow removal efforts on the day of the last storm but had not returned to the site as of the day of the incident.

The Plaintiff allegedly slipped and fell on a localized patch of black ice that was near a large snow mound that had been plowed into parking spot. The Plaintiff sustained a primary injury of a broken wrist that required a surgical repair and other treatment.

The Defendants filed a Motion for Summary Judgment asserting that the Defendant was unable to establish that anyone had constructive notice of an alleged transient, isolated patch of black ice. 

The snow removal contractor additionally asserted that there was no causal connection between their work and the Plaintiff’s injuries. 

Judge Williamson noted that, while at first glance, it would appear that the Plaintiff fell on a localized patch of ice that was transient in nature, the deposition of the snow removal contractor’s employee was found to have “complicate[] a seemingly simple matter.” 

The court noted that the contract between the snow removal contractor and the shopping center required that the snow shall be plowed in a workman like manner from all paved areas. 

Accordingly, the court noted that it appeared that the snow removal contractor may have failed to abide by its contractual duties by piling the snow in a paved parking area/parking space. The court pointed to testimony from a representative of the shopping center who testified that it was not appropriate for the snow removal contactor to have piled snow in parking spots. It was also indicated by that representative that the snow removal contractor was never directed to, and never sought permission to, plow snow in the parking spaces. According to that representative, the snow should have instead been plowed into a grassy area outside of the parking lot.

The court noted that the Plaintiff contended that the location of the snow pile made both Defendants allegedly negligent as they should have known that snow melt and refreezing could be a risk for pedestrians in that location.

Given these material issues of fact, the court denied the Motion for Summary Judgment.

The court also addressed the arguments by both Defendants that they did not have any constructive notice that the black ice was present in the parking lot. Judge Williamson noted that black ice cases are not as easily analogous to other constructive notice cases because black ice conditions are very difficult to see as compared to other conditions. The court additionally noted that, under the applicable law, a landowner has the duty to protect an invitee against known dangers and also those dangers which might be discovered with reasonable care.

In this case, the court noted that both Defendants may have lacked constructive notice of any black ice because neither Defendant was regularly visiting the site at the time the Plaintiff fell.

In this regard it was noted by the Court that the snow removal contractor would only come to the premises on an as needed basis and that the Co-Defendant representatives were only sending an individual to check on the site once or twice a month. 

However, the court emphasized that the large snow pile was left on the parking lot surface in a parking space by the Defendants. The court stated that this snow pile would have been an open and obvious condition near the restaurant. It was also noted that the parking lot was sloped such that the snow melt would likely run into the area where other vehicles parked and pedestrians walked as opposed to the snow being kept in a remote location of the parking lot or separately on grass or dirt where it could be kept safely away from pedestrians walking areas.

The court stated that, as such, the Defendants should have been aware that, during winter months, there is a constant threat of melting and refreezing conditions, and that black ice is not a rare occurrence.

In this case, where the experts differed on what was reasonable under the circumstances, the court noted that there were issues of fact that required the case to go to the jury for this additional reason.

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

Source:  Photo by Egor Kamelev from www.pexels.com.

Tuesday, April 9, 2024

Chief Magistrate Judge Saporito of Federal Middle District Court Reviews Assumption of Risk Doctrine


In the case of Hazen v. Woodloch Pines Resort, No. 3:21-CV-00174 (M.D. Pa. Feb. 16, 2024 Saporito, C.M.J.) Chief Magistrate Judge Joseph F. Saporito, Jr., of the Federal Middle District Court of Pennsylvania denied a Motion for Summary Judgment by a Defendant resort in a fall down case.

According to the Opinion, the Plaintiff was engaged in a corporate team building activity on an outdoor low ropes challenge course. During one of the challenges, the Plaintiff fell, along with other members of her team, to the ground below.  The Plaintiff allegedly suffered a significant ankle injury, including an ankle dislocation and fracture.

The Defendants filed a Motion for Summary arguing that the Plaintiff’s claims were barred under the assumption of risk doctrine.

Judge Saporito reviewed the current status of the Pennsylvania law on the assumption of risk doctrine. While the court found that it was undisputed that the Plaintiff was generally aware of the risk that she might fall from the balance beam during the activity she was engaged in, the court noted that awareness of a general risk does not amount to awareness of a specific risk under the assumption of the risk doctrine under Pennsylvania law. Here, the court did not find that the potential for serious injury such as a complex ankle fracture and other injuries could have been appreciated under the circumstances presented.

Moreover, the court noted that there is factual dispute as to whether the Plaintiff’s participation in the challenge course was voluntary as that term is defined under the assumption of the risk doctrine. The Plaintiff offered testimony that she felt that her participation in this team building activity was required rather than voluntary.

Accordingly, in light of the issues of fact presented, the court denied the Motion for Summary Judgment.

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 Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source:  Photo by Thomas Couillard from www.unsplash.com.

Thursday, April 4, 2024

Certificate of Merit Requirements Also Apply in Federal Court


In the case of Rightmyer v. Philly Pregnancy Center, P.C., No. 23-1925 (E.D. Pa. March 1, 2024 Quinones Alejandro, J.), the court granted a Defendant’s Motion to Dismiss after finding that the Certificate of Merit requirements for medical malpractice claims in Pennsylvania also apply in federal court.

In this case, the court ruled that a nurse is not qualified to execute a required Pennsylvania Certificate of Merit in a medical malpractice action against a medical doctor.

The court additionally found that the Plaintiff failed to plead a claim for negligence infliction of emotional distress in this case.

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 Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Tuesday, April 2, 2024

Court Upholds Arbitration Agreement in a Nursing Home Malpractice Case



In the case of Dougherty v. Scranton Health Investors, LLC, No. 2014-CV-5245 (C.P. Lacka. Co. Feb. 1, 2024 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed Preliminary Objections filed by the owner and operator of a skilled nursing home facility seeking to compel the Plaintiff to submit this litigation to binding Arbitration pursuant to an Arbitration Agreement.

According to the Opinion, the Plaintiff commenced this survival action against the facility where her mother allegedly fell and suffered a fractured hip. In the lawsuit, the Plaintiff sought to recover damages for the pain and suffering that the mother endured prior to her death due to unrelated conditions.

According to the Opinion, approximately one year before the mother’s admission to the facility, the mother and her daughter executed a Durable Power of Attorney that granted the daughter the express authority to authorize the mother’s admission to such a facility and to execute agreements related to the mother’s care.

Almost two (2) years after the mother’s admission to the facility and pursuant to the authority granted the Durable Power of Attorney, the daughter executed a “Resident Facility Arbitration Agreement” under which it was agreed that any claims against the facility or its employees for negligence or malpractice to binding arbitration and to specifically waive the right to have such claims decided by a judge or a jury.

After the Plaintiff filed this lawsuit, the facility’s owner filed Preliminary Objections seeking to compel the Plaintiffs to submit the matter to binding arbitration. 

Judge Nealon reviewed the law on the issue and ruled that a litigant’s claims are to be submitted to arbitration if a valid agreement to arbitrate exist between the parties and the claims at issue fall within the scope of that agreement. The court noted that, even if a party has not signed an Arbitration Agreement, the party can be compelled to arbitrate under such an agreement based upon the law of agency and contract. The court noted that a valid Durable Power of Attorney constituted a grant of express authority to act as another’s agent.

Here, the court found that the facility’s owner established by a preponderence of the evidence that the mother had granted her daughter the authority to execute the arbitration agreement at issue, and that the survival claims asserted in this lawsuit were within the scope of that arbitration agreement.

Consequently, the court sustained the Defendant’s Preliminary Objections and directed the parties to instead submit the claims at issue to binding arbitration.

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

Friday, March 29, 2024

Defendant's Post-Verdict Request for Damages Denied by Court on Basis Of Defense Counsels' Conduct During Trial



In the case of McManus v. Walgreens Co., Inc., No. 2:21-CV-02285-CFK (E.D. Pa. March 11, 2024 Kenney, J.), Judge Chad Kenney of the Eastern District Court of Pennsylvania denied a Defendant’s post-verdict bill of cost, thereby precluding the Defendants from securing more than $130,000.00 in legal fees.

The court rejected the motion after finding that “evasive” conduct by defense counsel, including allegations that defense counsel misled the court during the course of trial, supported the court’s decision.

According to the Opinion, during the trial the defense expert testified about his findings from a site inpsection.  On cross-examination, it was brought to light that the expert had completed the site visit "sub rosa" (meaning 'in secret') during the first week of trial.

According to the Opinion, the court noted that it had later come to the court’s attention, after the entry of a defense verdict, that the Defendants’ expert witnesses had allegedly lied during his trial testimony when he claimed that the defense attorneys were not aware that the expert had performed that additional site visit relative to his expert testimony.   The court admonished the defense attorneys for not correcting this testimony while the expert witness was on the stand at trial.

Relative to the Motion for Costs presented by the Defendants as the prevailing party, the court noted that it was denying this motion given the defense counsel’s conduct in the trial, finding that the defense counsel “were in flagrant disregard for the Federal Rules of Civil Procedure.”

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 Stephen Scheuerle of the Philadelphia law firm of Hohn & Scheuerle, LLC for bringing this decision to my attention.

Thursday, March 28, 2024

Trial Court Rules That Plaintiff Must Cooperate and Answer IME Doctor's Questions That Are Germane


In the Monroe County case of Nelson v. Wilkins, No. 1381-CV-2022 (C.P. Monroe Co. Jan. 26, 2024 C. Daniel Higgins, Jr., J.), the court granted a Defendant’s Motion to Compel a Plaintiff to provide information to the IME doctor during an independent medical examination of a Plaintiff in a personal injury case arising out of a motor vehicle accident.

According to the decision, the Plaintiff had appeared for an examination but refused to answer the IME doctor’s questions, asserting that the questions were allegedly outside the scope of Pa. R.C.P. 4010 about the occurrence of the accident that lead to the Plaintiff’s alleged injuries.

Judge Higgins noted that the rule provides that the examiner is limited to inquiring regarding the facts of liability germane to the issue of damages. The court found that the Plaintiff’s attorney’s position that the IME doctor should not ask questions regarding the history of the accident that could relate to liability and the Plaintiff’s argument that the doctor could avoid the problem by reviewing depositions, police reports, Interrogatories, and other discovery materials “was untenable” because it placed too high of a burden on the IME doctor.

In granting the Defendant’s Motion to Compel in this regard, the Court ordered that the Plaintiff was required to cooperate and answer the questions of the examining doctor.  The court noted that, under Rule 4010, the Plaintiff could have her counsel or other representative present during the examination.

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


Source: “The Legal Intelligencer Case Alert”, www.LAW.com (March 20, 2024).

Source of image: Photo by Tima Miroshnichenko on www.pexels.com.

Where Defense Medical Expert Does Not Concede Injury, Causation Remains In Dispute


In the case of Dang v. Geico Secure Ins. Co., No. 23-2311 (E.D. Pa. March 14, 2024 Hey, Mag.J.), the court denied a Motion In Limine in an uninsured motorist benefits case.  The Plaintiff sought a ruling from the Court that the subject accident was a factual cause of the Plaintiff's alleged injuries based upon the expert reports submitted by the parties. 

In so ruling, the court held that, where both parties’ experts agree that the Plaintiff has suffered some form of an injury from the Defendant’s conduct, a jury cannot find a total lack of causation. However, this rule does not apply where no injury is conceded by the defense expert.

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 Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Wednesday, March 27, 2024

Case Transferred Under Doctrine of Forum Non Conveniens


In the case of Leone v. Gusick, No. 2023-CV-37 (C.P. Lacka. Co. March 1, 2024 Nealon, J.). The court granted certain defendants motion to transfer a case under the doctrine known as forum non conveniens in a medical malpractice action that was filed in Lackawanna County and which was transferred to Lycoming County by virtue of this decision.

According to the Opinion, the Lycoming County plaintiffs in this case filed this medical malpractice action against Lycoming County and Centre County doctors and their Lycoming County and Montour County employers based upon medical treatment that was provided primarily in Lycoming County and Clinton County, and to a lesser extent in Montour County.

Judge Terrence R. Nealon
Lackawanna County


Judge Nealon ruled that the credible testimony presented during an evidentiary hearing established that the trial of this case in Lackawanna County, which is more than one hundred miles from the sites of the relevant medical treatment and related evidence, would be unduly burdensome for key defense witnesses, and would impose significant hardships on their professional and family responsibilities.

The court additionally found that having the case litigated in Lycoming County would provide easier access as to material witnesses possessing relevant information regarding the medical treatment at issue and the alleged injuries.

As such, based upon the totality of the relevant circumstances, the court found that Lackawanna County was indeed an oppressive forum for the continued litigation of this malpractice action.  

Accordingly, the request submitted by certain defendants to transfer the venue of this case to the Court of Common Pleas of Lycoming County was granted.

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

Tuesday, March 26, 2024

Superior Court Reverses Trial Court Order Transferring Venue


In the case of James v. Wal-Mart Distribution Center, No. 856 EDA 2023 (Pa. Super. Feb. 2, 2024 Dubow, J., McLaughlin, J., King, J.) (Op. by Dubow, J.), the Pennsylvania Superior Court reversed a trial court Order transferring the venue of the action.

The appellate court ruled that the defendants in this matter had failed to identify proposed witnesses and a link to any evidence to be provided by the witnesses relative to the defense's claim of hardship in regards to the Plaintiff's choice of forum and the issue of venue.

Accordingly, the trial court decision was reversed and the case was remanded.

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




Monday, March 25, 2024

ABINGTON HEIGHTS HIGH SCHOOL MOCK TRIAL TEAMS WINS 3RD STATE CHAMPIONSHIP IN 4 YEARS


The Abington Heights High School Mock Trial Team from Clarks Summit, PA won the 2024 Pennsylvania State Championship in Harrisburg, PA on Saturday March 23, 2024.  Judge Jennifer Wilson of the Federal Middle District Court of Pennsylvania was the presiding Judge.

The Team is the 2024 State Champion from among a field of over 262 Teams who competed across the Commonwealth of Pennsylvania.

Incredibly, this is the 3rd State Championship in 4 years for the Abington Heights High School Mock Trial Team. Truly a remarkable accomplishment by a great bunch of students.

The Abington Heights High School Mock Trial Team, in no particular order, is comprised of Zachary Riggall, Serena Mokhtari, Amishi Amit, Ava Shedlauskas, Madeline Herold, Dane Huggler, Ananya Phadke, Ava Whalen, Thomas Russini, William Newton, Aidan Lam, Christopher Cummins, Henry Mahoney, JT Healey, and Nolan Moore.

The Teacher-Coaches are Ms. Jen Tarr and Ms. Amy Kelly.  The Attorney Advisors are Joseph T. (Jody) Healey of Burns White and Daniel E. Cummins of Cummins Law.  The Team's Performance Advisor is Anne Cummins.

The mantra for the 2024 State Champs was "to be humble, to be kind, and to be the hardest working team" in the Competition.  Hopefully, one of the many lessons that was instilled into the students this season was that these qualities can lead to success in their future professional and private lives.

Here is a LINK to the video of Pennsylvania Bar President, Michael McDonald, Esq. of McDonald & MacGregor announcing that the Abington Heights High School Mock Trial Team won the State Championship.

Here is a LINK to the local TV news story from WNEP-16 today highlighting the Team's success!  Here is a LINK another news story on the Championship Mock Trial Team from Abington Heights.

Sending thanks to all of the people the Pennsylvania Bar Association and to all of the members of the Young Lawyers' Divisions across the Commonwealth of Pennsylvania for running this great Competition.  Locally, gratitude is expressed to the Lackawanna Bar Association and the District Coordinator, Mackenzie Wilson, Esq. of Munley Law for all the work and time put toward making the Competition a success.  

Thanks also to all the Judges and lawyers and others who volunteered their time to serve as Judges and jurors.  Hopefully, someday, the Pennsylvania Supreme Court will allow for rule changes so that lawyers and judges can earn CJE and CLE credits for volunteering their time to the Mock Trial competition as is allowed in many other states.  Opening the door to such credits will surely entice more to become involved and thereby fill the jury boxes for these students at their trials.

Now the Abington Heights High School Mock Trial Team will represent Pennsylvania in the Nationals Competition set for this May 3rd and 4th in Wilmington, Delaware.

Go Comets!!


Friday, March 22, 2024

Pennsylvania Superior Court Remands Case to Trial Court For Hearing on Venue Issues


In the case of Mazzuca v. Abreu, No. 1264 EDA 2023 (Pa. Super. Feb. 12, 2024 Stabile, J., Kunselman, J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.), the Pennsylvania Superior Court ruled that the trial court erred in determining that there were no contested issues of fact regarding the issue of proper venue.

The appellate court ruled that a remand was required so that a hearing could be conducted to determine whether venue was proper in Philadelphia based upon the plaintiff’s claim that she served the defendant at the defendant’s “office or usual place of business” pursuant to Pa.R.C.P. 402(a)(2)(iii).

Source “The Legal Intelligencer’s Most Viewed Cases For The Week,” www.Law.com. (March 1, 2024).

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

 


Thursday, March 21, 2024

Federal Court Case Remanded to State Court Based on Untimeliness of the Removal



In the case of Calpin v. The ADT Security Services, Inc., No. 3:2023-CV-1418-JKM (M.D.Pa. Feb. 20, 2024, Munley, J.), the Court remanded the case back to the state court after finding that the defendant’s notice of removal was procedurally defective in that it was untimely.

According to the opinion, this matter arose out of the alleged termination of the plaintiff’s employment while he pursued worker’s compensation benefits.

The plaintiff originally filed suit in the Lackawanna County Court of Common Pleas. Nearly ten months after the filing of the plaintiff’s Complaint, the defendant removed the matter to federal court.

In the matter before the Court on the motion to remand, the defendant asserted that the removal was timely based upon when information was obtained during discovery regarding the amount in controversy. As noted, the plaintiff argued that the defendant removed the matter in an untimely manner.

Judge Julia K. Munley
M.D. Pa.


Judge Julia K. Munley of the Federal Middle District Court of Pennsylvania generally noted that a notice of removal must be filed within thirty days after service of the initial pleading setting forth the claim for relief upon which the action is based. Here, there was no dispute that the defendant filed its notice of removal beyond the thirty day period.

While the Court noted that, under certain circumstances, a defendant may file a notice of removal more than thirty days after the receipt of the initial pleading, here, the Court rejected the defendant’s contention that they did not know that the amount in controversy exceeded $75,000 until information was secured from the plaintiff’s responses to Interrogatories.

The plaintiff asserted that the state court Complaint placed the defendant on notice that the amount in controversy exceeded $75,000. The Court agreed. The Court noted that the plaintiff’s Complaint detailed the underlying economic damages claims and also asserted a punitive damages claim. The Court found that the amounts regarding the plaintiff’s alleged ongoing wage loss claim could be readily calculated and evaluated by the defendant based upon the information provided.

The Court additionally noted that, on the basis of the plaintiff’s alleged punitive damages claims alone as set forth in the state court Complaint, the defendant had the ability to remove the case to federal court when the complaint. was served.

Overall, the Court found that, where the defendant did not remove the case within the thirty day period allowed, the plaintiff’s motion to remand the case to state court was granted.

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


I send thanks to Attorney Michael Foley of the Foley Law Firm in Scranton for bringing this case to my attention.

Tuesday, March 19, 2024

Judge Nealon of Lackawanna County Gives Guidance on Complaint Drafting


In the case of Baigis v. Thomas-Cooper, No. 2023-CV-2324 (C.P. Lacka. Co. Feb. 16, 2024 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas continued the trend of trial courts and appellate courts overruling Preliminary Objections in the form of demurrers to claims of reckless conduct in motor vehicle accident matters where negligence has been alleged.

The rationale of these decisions remains that, under the express terms of Pa. R.C.P. 1019(a), a condition of the mind, such as an allegation of recklessness, may be averred generally in the pleadings.  As such, the demurrer by the Defendant to the claims of recklessness in this Baigis case was overruled.

In reviewing this issue, the court in Baigis referred to the analysis of the prior jurisprudence in this regard as set forth in “Pleading for Clarity: Appellate Guidance Needed to Settle the Issue of the Proper Pleading of Recklessness in Personal Injury Matters,” by Daniel E. Cummins, 93 Pa. B.A.Q. 32 (Jan 2022).

In another part of the decision, the court also overruled the demurrer asserted by the Defendants against a separate claim for punitive damages asserted by the Plaintiff.   While the court overruled the Defendant’s demurrer against the Plaintiff’s claim for punitive damages, the court did sustain an alternative objection to the Plaintiff’s listing of the punitive damages claims as separate counts in the Complaint. 

The court pointed to previous precedent confirming that a request for punitive damages does not constitute a cause of action in and of itself, but rather, is merely an incidental claim relative to a separate cause of action. Judge Nealon also noted that the appellate courts have otherwise stated that “no independent action exists for a claim of punitive damages since punitive damages is only an element of damages.”

This decision is also notable for the fact that the court ruled that since the mere issuance of a summary offense citation to a motorist as a result of a motor vehicle accident is not admissible in a civil action arising out of the same accident, a preliminary objection to the reference in the Complaint to the summary offense citations allegedly issued to the Defendant motorist should be sustained and such allegations stricken as impertinent matter under Pa. R.C.P. 1028(a)(2).

The court otherwise ruled that the Plaintiff’s separate allegations that the Defendant violated certain unidentified statutes, ordinances, or regulations would be sustained under Pa. R.C.P. 1028(a)(3) and Lackawanna County Local Rule 1019. The court did allow the Plaintiff to file an Amended Complaint in which the Plaintiff would have to provide specific citations for any alleged statutes, ordinances, or regulations allegedly violated by the Defendant.

Lastly, the court additionally sustained the Defendant’s Preliminary Objection under rule 1028(a)(3) to the Plaintiff’s bald allegations of actionable conduct “as shall be revealed in discovery.” The court found that these types of allegations were improper under the fact-pleading requirements of the Pennsylvania Rules of Civil Procedure.

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




Federal Court Upholds Timeliness of Removal of UIM Case to Federal Court


In the case of Ward v. Progressive Pref. Ins. Co., No. 2:23-CV-03666-KNS (E.D. Pa. Jan. 19, 2024 Scot, J.), the Eastern Federal District Court denied a Plaintiff’s Motion to Remand this UIM action that the carrier had removed from state court on the basis of diversity jurisdiction.

The Plaintiff had argued that the removal was untimely under 28 U.S.C. §1446(b)(3) because the carrier filed its removal notice more than thirty (30) days after receiving a demand letter showing that the amount if controversy exceeded the $75,000.00 jurisdiction threshold. 

The Plaintiff additionally argued that the case was removed to federal court more than one (1) year after the commencement of the action in violation of 28 U.S.C. §1446(c)(1).

The federal court disagreed and ruled that the removal notice was timely filed under §1446(b) because Progressive removed the action within thirty (30) days of the Complaint, which was the “initial pleading” referred to in the removal statute.

The federal court additionally noted that neither §1446(b)(3) nor the 1-year limitations period under §1446(c)(1) applied to this case.

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


Source: “The Legal Intelligencer Federal Case Alert” (Feb. 22, 2024).

Monday, March 18, 2024

Superior Court Confirms That, At Times, Plaintiff Can Prove Obvious Injuries Without Medical Expert


In a decision marked as "Non-Precedential" in the case of Kent v. Williams, No. 1855 EDA 2023 (Pa. Super. Feb. 13, 2024 Murray, J., Lazarus, J., and Stevens, P.J.E.) (Op. by Murray, J.), the Pennsylvania Superior Court reversed the entry of a nonsuit by a trial court in a fall down case.

According to the Opinion, the Plaintiff fell while on a ladder.  The Plaintiff sued the Defendant for not properly securing the ladder and/or providing a defective ladder.    

In this case, the Superior Court noted that a compulsory nonsuit cannot be entered prior to trial but can be treated as an entry of summary judgment by the trial court on appeal.

The appellate court additionally ruled in this case that a medical expert is not necessary to testify as to those types of injuries that may fall within the common experience and understanding of lay people on a jury, such as certain injuries that may result from a fall-down event where, as here, the Plaintiff fell 15 feet down from a ladder and landed on the surface below and allegedly sustained immediate injuries.

The court otherwise ruled that a personal injury Plaintiff is competent to testify as to his or her pain and suffering.

The appellate court additionally found that the trial court had erred in excluding the Plaintiff’s medical records entirely as hearsay. The Superior Court noted that, while some medical records or portions of records may indeed be hearsay, other portions may contain statements made for medical diagnosis which would fall under an exception to the hearsay rule. The trial court was ordered to consider each medical record individually on remand.

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.


Source of image:  Photo by Raphael Brasileiro on www.pexels.com.

Thursday, March 14, 2024

Multi-Million Dollar Jury Verdict in Construction Case Deconstructed by Superior Court (Non-Precedential)


In the non-precedential case of D’Amico v. Covanta Holding Corp., 692 EDA 2023 (Pa. Super. Feb. 28, 2024 Lazarus, J., Panella, P.J.E., Colins, J.)(Op. by Colins, J.), the Pennsylvania Superior Court ruled that a new trial should be granted in a construction injury case in which the jury had awarded $6.4 million to the Plaintiff.

The Pennsylvania Superior Court held that the trial court’s jury charge improperly omitted an instruction on a key liability issue, rendering the jury instructions misleading and inaccurate.

More specifically, the Superior Court ruled that the trial court’s jury charge completely omitted any instruction on the issue on which the Defendant had sought an instruction, that is, on the issue whether retention of some authority over safety and enforcement of safety requirements can constitute the kind of retention of control sufficient to find liability under Pennsylvania law.  The appellate court found that this omission by the trial court was an error of law on the central liability issue in the case.

As such, the case was remanded for a new trial.

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


Source: “PA. Appeals Court Tosses $6.4 M judgment based on faulty jury instruction,” by Aleeza Furman. Pennsylvania Law Weekly (Feb. 29, 2024)

Wednesday, March 13, 2024

Judge Nealon of Lackawanna County Outlines Law Regarding Use of Admissible Evidence or Demonstratives During Opening Statements


In the case of Webb v. Scranton Quincy Hospital Company, LLC, No. 2021-CV-4073 (Lacka. Co. March 8, 2024 Nealon, J.), Judge Terrence R. Nealon provided a thorough analysis of the law applicable to the reference to admissible evidence during the course of an Opening Statement at a civil litigation trial.

As confirmed by Judge Nealon's Opinion, there is a dearth of precedent on this common issue.  As such, Judge Nealon's Opinion in this Webb v. Scranton Quincy Hospital Company case is likely to become the go-to decision for the applicable law regarding the use of demonstratives during an Opening Statement at a civil litigation trial.

In this medical malpractice case, the Plaintiff filed a Motion In Limine seeking leave of court to utilize admissible excerpts of video tape depositions of unidentified defense witnesses during the course of the Opening Statement to be presented by Plaintiff’s counsel.

Judge Terrence R. Nealon
Lackawanna County


After reviewing the sparse law on the issue, which, generally speaking, allows, under the discretion of the trial court, the reference and showing of admissible evidence during the course of an Opening Statement, Judge Nealon ruled that, since the video deposition testimony of parties, their officers, directors, managing agents, and designated witnesses, and non-party medical witnesses and expert witnesses “may be used against any party” at trial “for any purpose” pursuant to Pa. R.C.P. 4017.1(g) and 4020(a)(2) and (5), “any part or all” of the video depositions of those types of witnesses may be shown to the jury during an opening statement to the extent that those excerpts from the video depositions are admissible at trial.

The court ordered the Plaintiff to identify which portions of what video deposition they intend to utilize during the course of the Opening Statement so that the opposing party could assert any reserved evidentiary objections to those excerpts so that any required rulings may be made prior to the Opening Statement.

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

Commonwealth Court of Pennsylvania Addresses Storm Water Negligence Issues


In the case of Howarth v. Falls Township, No. 447 C.P. 2021 (Pa. Cmwlth. Feb. 14, 2024 Covey, J, Wallace, J., and Leavitt, S.J.) (Op. by Leavitt, S.J.), the Pennsylvania Commonwealth Court reversed trial court’s granting of a Motion for Summary Judgment in a municipal storm water negligence/storm water management statute case.

In this case, arising in Wyoming County, the trial court had granted summary judgment to the township in a case in which the Plaintiff landowner had asserted that the township’s installation of a culvert under a road adjacent to the Plaintiff’s property constituted an alteration of land that triggered the requirements of the Storm Water Management Act.

The Plaintiff additionally asserted on appeal that the trial court had erred in holding that the township’s creation of an artificial channel to discharge water onto his property did not state a common law negligence claim, which is the first step in pursuing any claim under the Political Subdivision Tort Claims Act.

As noted, the appellate court reversed the trial court’s decision in this case.

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

I send thanks to Attorney Joseph G. Price of the Dougherty Leventhal & Price law firm in Moosic, PA for bringing this case to my attention.


Source of image:  Photo by Genaro Servin on www.pexels.com.

Monday, March 11, 2024

Pennsylvania Supreme Court To Review the Continuing Validity of Statutory Cap On Damages Allowed Against State Agencies

The Pennsylvania Supreme Court has agreed to review a challenge by a Plaintiff to the $250,0000 statutory cap on damages allowed against state agencies.

The Court will hear the appeal in the case of Freilich v. SEPTA.  Here is a LINK to previous Tort Talk posts covering the Freilich case.

The lower courts in this case have rejected the challenge to the statutory caps but have expressed concerns about the fairness of the cap.

Source:  "Pa. High Court Agrees to Take Up Challenge to State Damages Cap" by Aleeza Furman of The Legal Intelligencer  (March 11, 2024).

ARTICLE: The Law on Two Wheels: Bicycle Law in Pennsylvania


Here is a LINK to a copy of my article entitled "The Law on Two Wheels:  Bicycle Law in Pennyslvania" which was published as the cover article for the March/April 2024 edition of The Pennsylvania Lawyer magazine which is published by the Pennsylvania Bar Association.

I send thanks to the Editor, Patricia Graybill, for choosing this piece for publication and for selecting it as a cover article for this edition of the magazine.  

Proud to note that this is the 10th article of mine that has been published in The Pennsylvania Lawyer Magazine.  

Overall, I have published over 190 articles in a variety of other legal newspapers, magazines and Law Reviews all covering different civil litigation topics, trends, and tips.  Over the years, I have also created and presented 67 CLE seminars on civil litigation topics and practice tips.







Friday, March 8, 2024

ARTICLE: Pa. High Court Shows Continuing Signs of Moderation With Regular Use Exclusion Holding

The below article of mine was published by the Pennsylvania Law Weekly on February 29, 2024 and is republished here with permission.

Daniel E. Cummins
Cummins Law










Pa. High Court Shows Continuing Signs of Moderation With Regular Use Exclusion Holding

February 29, 2024

By Daniel E. Cummins 

On Jan. 29, the Pennsylvania Supreme Court issued its long-awaited and much anticipated decision in the regular use exclusion case of Rush v. Erie Insurance Exchange, No. 77 MAP 2022 (Pa. Jan. 29, 2024)(Maj. Op. by Donohue, J.)(Concurring Op. by Wecht, J.) and, in doing so, seemed to signal a possible continuing movement away from its previous penchant for advancing plaintiffs’ causes in personal injury matters and toward a more reasoned, moderate approach to civil litigation questions of law.

Over the past five years or so, the Pennsylvania Supreme Court had handed down decision after decision, along with important civil litigation rule changes, that all largely advanced plaintiffs’ abilities to recover more and more compensation in a wider variety of circumstances.

More specifically, the Pennsylvania Supreme Court allowed for more liberal venue Rules of Civil Procedure for medical malpractice actions and also issued rules allowing for increased recoveries on appeals from personal injury arbitration proceedings. The court additionally issued decisions that seemed to relax venue rules for internet-based defamation claims (Fox v. Smith) and other types of personal injury claims. The Pennsylvania Supreme Court also issued decisions that expanded the plaintiff’s ability to recover from governmental entities (Cagey v. PennDOT and Balentine v. Chester Water Authority) and automobile insurance carriers (Gallagher v. Geico).

More recently, however, in 2023 the Supreme Court began to show signs of moderation with its decisions in the civil litigation arena. In the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Pennsylvania Supreme Court, without acknowledging that it was doing so, stepped significantly back from its previous effort in the Gallagher v. Geico case to eradicate the household exclusion found in automobile insurance policies as void and unenforceable across the board. In Mione, the court rejected the argument by the plaintiff that the Gallagher decision should be read as having served to invalidate the exclusion in all cases in Pennsylvania.

In another recent decision evidencing moderation on the part of the court, in the case of first impression of Franks v. State Farm Mutual Automobile Insurance, 292 A.3d 866 (Pa. April 19, 2023) (Op. by Mundy, J.), the court issued a decision that favored insurance carriers by ruling 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 another written waiver of stacked coverage from the insured under Section 1738(c).

Now, with its January, 2024 decision in the case of Rush, the Pennsylvania Supreme Court has ruled that, as presented in this case, the regular use exclusion contained in motor vehicle insurance policies does not violate the express language of Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL).

The plaintiff in Rush was a police officer who was injured in a motor vehicle accident while driving his police vehicle at work. The plaintiff recovered the liability limits from the tortfeasor’s policy as well as the UIM limits that were available on the police vehicle.  

The plaintiff then sought to obtain additional recoveries from the Erie Insurance policies that covered his personal vehicles at home. Erie Insurance relied upon a regular use exclusion contained in the policy that covered the plaintiff’s personal vehicles to deny coverage on the additional UIM claim.

The trial court and the Pennsylvania Superior Court had ruled, in part, that the regular use exclusion violated the provisions of the MVFRL, and in particular, the terms of 75 Pa.C.S.A. Section 1731.  

More specifically, the lower courts had held that the regular use exclusion conflicted with the language of Section 1731′s mandate requiring the provision of UIM coverage to insureds in that the exclusion limited the scope of the coverage provided by Section 1731 by precluding coverage if an insured is injured while using a motor vehicle that the insured regularly used but did not own.

As noted, in its Rush decision, the Pennsylvania Supreme Court reversed the lower courts’ decisions and upheld the validity and enforceability of the regular use exclusion.

In so ruling, unlike what it did in its Gallagher v. Geico decision on the validity of the household exclusion, the Pennsylvania Supreme Court pointed to prior decisions it had rendered in which it had repeatedly upheld the validity of the regular use exclusion. The court found the plaintiff’s arguments in this Rush case to be a mere recitation of at least one of the same arguments that had been previously rejected by the court in its prior decisions relative to the validity of the regular use exclusion.

The Pennsylvania Supreme Court rejected the plaintiff’s argument that the MVFRL required that UIM coverage must be provided in all circumstances regardless of which vehicle the injured party was located in at the time of the accident. The court noted that, to accept such an argument would render all exclusions invalid.  

The Supreme Court also rejected the plaintiff’s reliance upon the Pennsylvania Supreme Court’s decision in Gallagher v. Geico for the proposition that the regular use exclusion should be eradicated across the board just as the household exclusion had been eradicated in Gallagher as a allowing for a de facto waiver of stacked coverage when the MVFRL instead required the carrier to secure a written waiver of coverage from its insureds.

In this Rush v. Erie Insurance Exchange case, the Pennsylvania Supreme Court confirmed that it had previously clarified and narrowly limited its Gallagher decision in its more recent decision in the case of Erie Insurance Exchange v. Mione.  

Here, in Rush v. Erie Insurance Exchange, the Supreme Court ruled that “if the MVFRL does not require that UIM coverage follow the insured in all circumstances, then the MVFRL cannot be read to prohibit exclusions from UIM coverage.” As such, the court ruled that the terms of the UIM insurance contract between the parties still controlled relative to the scope of the UIM coverage available, or not available, and that, therefore, the regular use exclusion remained enforceable.  

The language utilized by the Pennsylvania Supreme Court seemed to indicate that it had heard the criticisms of some commentators regarding the apparent judicial activism of the court in favor of the plaintiff’s causes to the point where the court was arguably enacting changes in the law that would ordinarily come from the legislative branch of the court. In specifically holding that the regular use exclusion remained a permissible limitation of UIM coverage within the language of the MVFRL, the Pennsylvania Supreme Court wrote in Rush that, “with … no justification to allow this court to depart from decades of established law” that civil litigators had relied upon, the court held that it would maintain its continued course on this issue “unless and until the General Assembly or the insurance department acts in a way that would suggest we do otherwise.” 

Ultimately, contrary to its previous penchant to chart new avenues of recovery for injured plaintiffs regardless of established judicial precedent on the books for decades, the Pennsylvania Supreme Court implicitly acknowledged the continuing validity of the doctrine of stare decisis by stating that it was “bound by our prior decisions” to overrule the lower court decisions and hold that the regular use exclusion remained valid and enforceable.

Having previously shown a willingness to make startling changes in the status quo of civil litigation jurisprudence, but now showing signs of moderation, it will be interesting to see where the Pennsylvania Supreme Court goes from here in its handling of personal injury civil litigation matters.


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.


Reprinted with permission from the February 29, 2024 edition of the Pennsylvania Law Weekly. © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Wednesday, March 6, 2024

Congratulations To The Abington Heights High School Mock Trial Team -- Headed Back To States For Third Time in Four Years

Congratulations to the Abington Heights High School Mock Trial Team from Clarks Summit, PA who won their Trial last night at the Regionals to become not only a District Champion but also a Regional Champion in the competition.

The Abington Heights High School Mock Trial Team is now headed back to States for the third time in four years.

The Abington Heights High School Mock Trial Team won back-to-back State Championships in 2021 and 2022 and will try to soar again this year like the Comets they are!

Kudos to their Teacher Coaches, Jennifer Tarr and Amy Kelly, who have led the Team by reminding them at every trial that the Team is expected to be the humblest Team, the most kind Team, and the hardest working Team in the Competition.

*     *     *     *     *     *     *     *

Mock Trial participation teaches students to analyze a given set of facts, to organize a presentation, to communicate effectively and think on their feet, and serves to build the student's self-confidence and public speaking capabilities. That is, the students are learning skills that will assist them in any career path they pursue going forward.

The Competition also helps lawyers and Judges who volunteer for the Competition by serving as Judges and Jurors by reminding all involved that a compelling Opening or Closing can be concisely stated, that objection battles and knowledge of the Rules of Evidence remain important to allow for a fair trial, and to give some lawyers a new perspective of what a trial looks like when that attorney is sitting in the jury box as a juror.

Surely, the learning experience for Judges and lawyers who participate in the Mock Trial Competition supports a revisiting of the proposal that Judges and lawyers should be allowed at least one CJE or CLE credit per year for participating in the Pennsylvania Bar Association's Mock Trial Program.  Such credits are allowed in several other states.

Monday, March 4, 2024

Household Exclusion Upheld and Enforced By Superior Court Where Plaintiff Had Waived Stacking


In the case of Major v. Cruz and State Farm, 2024 Pa. Super. 26 (Pa. Super. Feb. 13, 2024 Bowes, J., Stabile, J., Pellegrini, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court addressed a household exclusion argument in a UIM case.

According to the Opinion, the Plaintiff was injured in a motor vehicle accident and settled the claims against the third party tortfeasor for $15,000.00.

At the time of the accident, the Plaintiff was operating her mother’s vehicle. That vehicle had $15,000.00 in UIM coverage. The Plaintiff secured that amount.

The Plaintiff then sought additional UIM recoveries on her own vehicle which had a $100,000.00 UIM policy limit.

According to the Opinion, the Plaintiff had rejected stacking on her own policy, which only had one (1) vehicle covered under it. State Farm denied the claim on that policy based upon a household exclusion contained within the policy.

The Plaintiff argued that the exclusion was not valid and that, at the very least, the Plaintiff should be allowed to recover $85,000.00 of that UIM coverage under a coordination of benefits provision contained in the same policy.

The Pennsylvania Superior Court held that the household exclusion remained valid in this case because the Plaintiff had rejected stacking under her own policy.

The court also found that, since the waiver of stacking in this case was valid, the Plaintiff could not make a valid challenge to the validity of the household exclusion under the circumstances presented in this case.

The Pennsylvania Superior Court also ruled that the Plaintiff did not have a valid argument for a recovery of the requested $85,000.00 since the coordination of benefits provision as worded in the policy was not implicated in this case.

In the end, the appellate court affirmed the trial court's decision to uphold the application of the household exclusion and the finding that the Plaintiff was not entitled to UIM coverage as a result under the State Farm policy.

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

Source of image:  Photo by Matt Hudson on www.unsplash.com.

Friday, March 1, 2024

Plaintiff's Shot at Kohl's Cash Stays Alive -- Summary Judgment Denied


In the case of Debo v. Kohl’s, Inc., No. 2:21-CV-00811-MJH (W.D. Pa. Feb. 8, 2024 Horan, J.), the court denied summary judgment in a trip and fall case.

According to the Opinion, the Plaintiff had parked in a Kohl's department store parking lot and began to walk to the store.  As she made her way from the parking lot surface and onto an entrance ramp that led to the store, the toe part of her shoe caught on an elevated section of the walking surface, allegedly causing her to fall.   

In so ruling, the court noted that Pennsylvania law does not recognize any bright dividing line between trivial and non-trivial defects on a landowner’s land.

In this case, the court could not say, as a matter of law, that a pavement height differential between one half and one inch was de minimis as asserted by the Defendant store.

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.

Thursday, February 29, 2024

Mock Trial Jurors Needed for Regional Competition To Be Held in Monroe County on March 5, 2024


The PBA/YLD Mock Trial High School REGIONAL FINALS Competition is scheduled for Tuesday, March 5, 2024 live and in-person at the Monroe County Courthouse.

Come see the new portions of the Monroe County Courthouse at this event.

Jurors are needed. If you are available to help, please reach out to Lori@monroebar.org.

Competition will begin promptly at 6:00 PM, with juror arrival requested to be no later than 5:45 PM. Dinner will be available for volunteers at 5:15 PM.

Thank you in advance for your time and continued support for this great program!