Covid-19 Related Claims Against College Allowed to Proceed

In the case of Dantone v. Kings College, No. 3:23-CV-1365 (M.D. Pa. Aug. 29, 2024 Munley, J.), the court ruled that Pennsylvania’s prohibition against claims for educational malpractice did not bar the Plaintiff’s COVID-related claims against the Defendant university for converting from in-person to on-line education to the alleged detriment to the Plaintiff.

The court noted that the Plaintiff did not claim that the education was inadequate, but that an in-person college experience was essential to the enrollment bargain.

The court also allowed the Plaintiff to plead unjust enrichment claims at this initial stage of the litigation even though Pennsylvania precludes unjust enrichment claims between parties whose relationship is governed by either an express or implied contract.  The court noted that, under the Rules of Civil Procedure, a Plaintiff is entitled to plead in the alternative.

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


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

Pennsylvania Supreme Court Reverses and Rules in Favor of Insurance Carrier in Covid-19 Business Interruption Coverage Case

In the case of Ungarean v. CNA, No. 12 WAP 2023 (Pa. Sept. 26, 2024) (Op. by Brobson, J.), the court addressed issues regarding business interruption coverage in the context of the COVID-19 pandemic.

This case involved a class action that was led by a dental practice which had purchased a commercial property insurance policy from an insurance company, which policy was intended to cover business-related losses.

After the court mandated closures as a result of the COVID-19 pandemic, the insured filed a claim under the policy, which was denied by the insurance company on the grounds that there was no physical damage to the property.

The trial court had granted summary judgment in favor of the insureds. The trial court had interpreted the policy language to include loss of use of the property as a form of “direct physical loss.”

That trial court decision was affirmed by the Superior Court who also found the policy language at issue was ambiguous and should be construed in favor of the insured.

However, the Pennsylvania Supreme Court reversed the Superior Court’s decision.

The Pennsylvania Supreme Court held that the policy language was unambiguous and required a physical alteration to the insured’s property for the coverage to apply.

The court ruled that the economic losses sustained by the insured due to the government shutdown did not meet this requirement.

As such, the Supreme Court ruled that the insured was not entitled to coverage under the policy. The case was remanded to the Superior Court with instructions for summary judgment to be entered in favor of the insurance company.

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


I send thanks to Attorney Scott B. Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.

Federal District Court Confirms that Fraudulent Misjoinder Doctrine Not Adopted in Third Circuit Relative to Remand Analysis

In the case of Ashworth v. Eurofins Donor & Product Testing, Inc., No. 23-1958 (E.D. Pa. Aug. 29, 2024 Schmehl, J.), the court granted a Motion to Remand and denied a Motion to Dismiss. In this case, the Plaintiff brought products liability claims against a diverse product manufacturer Defendant and medical malpractice claims against a non-diverse implantation surgeon.

The court ruled that remand was appropriate because the doctrine of fraudulent misjoinder is not recognized in the Third Circuit Court. The court noted that the elements of the doctrine were too unsettled to be adopted in this federal court.

As such, the Court ultimately ruled that a remand of this matter to the state court was proper.  

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


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

Court Dismisses Claims of Negligent Hiring and Supervision, as well as Negligent Entrustment, Against Lyft

In the case of Henry v. Marcelin, No. 24-1891 (E.D. Pa. Sept. 25, 2024 Arteaga, J.), a judge in the Eastern District Federal Court of Pennsylvania granted the Defendant rideshare comapany’s Motion for Partial Judgment on the Pleadings in a personal injury case arising out of a motor vehicle collision.

According to the Opinion, the Plaintiff was a passenger that was involved in a motor vehicle accident that involved a rideshare vehicle.

Among her claims, the Plaintiff alleged that the Defendant, rideshare company (Lyft), was responsible on theories of negligent hiring and negligent entrustment. The Defendant rideshare company sought a partial judgment on the pleadings, arguing that the Plaintiff’s claim alleging negligent hiring, retention, training, and supervision, along with a claim for negligent entrustment, failed to state a claim within relief could be granted.

The court granted the rideshare defendant’s motion after finding that the Plaintiff failed to identify any past misconduct by the driver of the rideshare vehicle that would have put a reasonable employer on notice of an employee’s propensity for dangerous activities. The court also noted that there were no allegations offered by the Plaintiff to support an inference that the Defendant rideshare company knew that its driver was allegedly unqualified.

The court declined to recognize a genuine duty to investigate on the rideshare company’s part.

Accordingly, the court dismissed the Plaintiff’s claims of negligent hiring and related claims. 

The court also dismissed the claims for negligent entrustment. These claims were dismissed without prejudice and with leave granted to the Plaintiff to amend on the chance that the Plaintiff might be able to allege facts sufficient to state a claim upon which relief could be granted.

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


Source “Digest of Recent Opinions.” www.Law.com (Pennsylvania Law Weekly) (Oct. 11, 2024).

Judge Mehalchick of Federal Middle District Addresses Definition of Resident Relative

In the case of Barna v. Progressive Ins. Co., No. 3:22-CV-01845-KM (M.D. Pa. Sept. 11, 2024 Mehalchick, J.), the court addressed a summary judgment filed by Defendant, State Farm, in a UIM case.

The Plaintiff claimed that State Farm wrongfully denied underinsured benefits that he was allegedly entitled to under his parents’ insurance policies.

According to the Opinion, the Plaintiff was involved in a motor vehicle accident while driving his father’s vehicle.

Due to the alleged severity of the Plaintiff’s injuries, the Plaintiff alleged that the liability coverage available to the at-fault driver and the coverage available on the vehicle that the Plaintiff was driving were insufficient to cover the Plaintiff’s damages. As such, the Plaintiff was also seeking to recover UIM benefits under policies issued to his stepfather and his mother, all of which policies were issued by State Farm.

A central issue in this case is whether the injured party was a “resident relative” under either policy issued by State Farm to the Plaintiff’s stepfather or his mother.

In her thorough Opinion, Judge Mehalchick reviewed the various definitions of the word “resident.” Judge Mehalchick also referred to Third Circuit precedent in which that court referred to Webster’s New Collegiate Dictionary to define that a person lives in a location as a resident when they occupy a home on a permanent basis.

Judge Mehalchick also noted that the federal courts have held that, if a resident relative moves out of an insured’s home, they lose the residency status, unless they move back to live with the insured under the policy on a full-time basis. 

The court noted that a “resident relative” who moves out of an insured’s home loses resident relative status except in limited circumstances, such is when the person leaves the home to go to school or on an extended vacation. 

After reviewing the record before her relative to the injured party’s association with his parents’ residence, the court found that no reasonable juror could find that the injured party had lived at his stepfather’s and mother’s residence as of the time of the incident. Accordingly, the injured party was found not to be a resident relative under the State Farm policies at issue. As such, State Farm’s Motion for Summary Judgment was granted.

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

Save the Date: November 14, 2024 - Lackawanna Pro Bono Gala

 

Upcoming Changes to the Pennsylvania Rules of Appellate Procedure

According to content in a recent edition of the Pennsylvania Bulletin, there are some changes to the Pennsylvania Rules of Appellate Procedure set to go into effect in January of 2025.

The Rule changes can be viewed at this LINK.

Federal District Court Addresses Jurisdictional Issues and also References Fair Share Act

In the case of Tanibajeva v. Skytop Lodge Corp., No. 3:23-CV-01846 (M.D. Pa. Sept. 3, 2024 Mehalchick, J.), the court granted in part and denied in part a Motion to Dismiss on jurisdictional issues in a case involving a zipline accident at a resort in the Poconos.

The court noted that the Plaintiff would be allowed to complete discovery in order to determine proper jurisdiction. 

Judge Mehalchick noted that, while a single shipment of a product who Pennsylvania is ordinarily not enough to confer specific personal jurisdiction, discovery in this case might reveal more significant contacts.

The court also noted that stream of commerce is not a valid jurisdictional theory. 

The court otherwise found that the Defendant in this case did not have regular and systemic Pennsylvania business.

However, the court found that the Plaintiff’s position on the jurisdiction issue was not frivolous. Accordingly, as noted, the court allowed for jurisdictional discovery to be completed.

In this Opinion, Judge Mehalchick also addressed the applicability of the Fair Share Act. 

The court noted its assessment that, under recent Pennsylvania case law, the Fair Share Act does not apply unless the Plaintiff’s potential comparative negligence is at issue. Accordingly, the court found that the allegations of joint and several liability by the Plaintiff were proper in this case. Judge Mehalchick also stated that, based upon her review of the Complaint, there did not appear to be a basis for an argument of comparative negligence.

The court also ruled that Pennsylvania law does not recognize a separate cause of action for willful and wanton misconduct or reckless indifference.

Judge Mehalchick also found the Plaintiff’s express warranty claims failed to plead that the Plaintiff purchased any product from the Defendants.  As such, that claim was dismissed.

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.

Philadelphia County Case Transferred To Delaware Under Doctrine of Forum Non Conveniens

In the case of Gravenor-Reutter v. Acme Markets, Inc., June Term, 2023 No. 2390 (C.P. Phila. Co. April 9, 2024 Bright, J.), the court issued a Rule 1925 Opinion to the Superior Court outlining the reasons in support of the trial court’s granting of the Defendant’s Motion to Dismiss this Philadelphia County case based upon the doctrine of forum non conveniens regarding the slip and fall event that occurred at an Acme in the State of Delaware.

The trial court noted that its Order dismissing the matter should be affirmed where the accident at issue occurred in Delaware, where the Defendant had merely minimal contacts in Pennsylvania, and where Delaware was a viable alternative forum for the Plaintiff’s lawsuit.

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


Source: “The Legal Intelligencer Weekly Case Alert” www.Law.com (Aug. 29, 2024).

Court Precludes Discovery From Grand Rounds Conference by Peer Review Committee in Med Mal Case

In the case of Houwelingen v. Milton S. Hershey Medical Center, No. 1:22-CV-01388 (M.D. Pa. Aug. 21, 2024 Wilson, J.), the court denied a Motion to Compel in the medical malpractice case.

At issue was the discoverability of a PowerPoint presentation from a grand round conference.

According to the Opinion, a grand round conference involves patient-specific presentations at a medical facility which include the retrospective review of the care those patients received. Grand round presentations are used to evaluate the quality and efficiency of the healthcare those patients received and also review how to improve such treatment.

The court ruled after, an in camera review, that the Defendant hospital’s grand rounds PowerPoint presentation was protected from discovery under Pennsylvania Peer Review Protection Act.

In so ruling, the court noted that protected peer review committees need not specifically have the words “peer review” in their title, nor must they limit themselves to solely conducting peer review functions, in order to secure the protections of the act.

The court noted that the patient discussion portions of the grand rounds presentations involved professional healthcare providers assessing and critiquing the care provided by other such professionals.

The court also noted that the fact that the participants in the meeting received continuing medical education credits did not preclude a finding that the information sought in discovery was afforded the protection of Peer Review Act.

Anyone wishing to review this decision may click this LINK.

Trial Court Refuses To Allow Defense Counsel to Attend Neuropsychological IME

In the case of Healey v. Scranton Hospital Company, LLC, No. 2023-CV-1793 (C.P. Lacka. Co. Oct. 2, 2024 Nealon, J.), Judge Nealon ruled, in a medical malpractice case that a defense attorney is not permitted to attend a neuropsychological examination that the defense had scheduled for a Plaintiff.

The court found that Pa. R.C.P. 4010, regarding physical and mental examinations in civil litigation matters, only grants the Plaintiff’s counsel the right to attend such an examination of the Plaintiff.

Judge Nealon noted that, “if the Supreme Court of Pennsylvania deemed it appropriate or necessary for defense counsel to have a corresponding right to attend a Rule 4010 examination, it could have stated so” in the Rule.

Given that Rule 4010 does not reference any right for a defense counsel to attend a medical examinatin set up for litigation purposes, Judge Nealon denied the defense motion in which the defense sought permission to attend the examination.

In his Opinion, Judge Nealon also cautioned that it would be inappropriate for a plaintiff's attorney interferes with the examination or obstructs the doctor's interview of the plaintiff, sanctions could be warranted.  The Judge also cautioned that, if the plaintiff's attorney acted inappropriately at the examination, the plaintiff's attorney even ran the risk of being disqualified from continuing as counsel for the plaintiff based upon the advocate-witness rule in Rule 3.7 of the Rules of Professional Conduct.

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

I send thanks to Attorney Bruce Zero of the Scranton, PA law firm of Powell, Zero & Mundy for bringing this case to my attention.

Save the Date: November 14, 2024 - Lackawanna Pro Bono Gala

 

LINK For the Third Circuit's Decision on Household Exclusion in Mid-Century Ins. Co. v. Werley

 One of yesterday's Tort Talk blog posts was on the case of Mid-Century Ins. Co. v. Werley, No. 23-1822 (3d. Cir. Sept. 5, 2024 Krause, J., Chung, J., and Randell J.) (Op. by Rendell, J.), the Third Circuit Court of Appeals upheld the application of a household exclusion in a UIM case.  

The Link was not set up on that post -- the Link has been corrected below.  Judge Marjorie Rendell's name was incorrectly spelled and that has been corrected as well.

Here is the LINK to that decision.

Apologies for any confusion or consternation caused by these errors.

Excellent Overview on the Law on the Validity of Household Exclusion Provided by Third Circuit

In the case of Mid-Century Ins. Co. v. Werley, No. 23-1822 (3d. Cir. Sept. 5, 2024 Krause, J., Chung, J., and Randell J.) (Op. by Rendell, J.), the Third Circuit Court of Appeals upheld the application of a household exclusion in a UIM case.

In this Opinion, Judge Marjorie Rendell provides a thorough and excellent overview of the applicable law under Pennsylvania’s Motor Vehicle Financial Responsibility Law with regards to the availability of underinsured motor vehicle coverage and the process for rejecting the same and with regards to the stacking of such coverage.

In this case, a 15 year old Plaintiff, who did not have a driver’s license, was operating

 his family’s uninsured dirt bike offroad with several friends on private property. Another driver struck the Plaintiff while that other driver was driving a Jeep.

The driver of the Jeep paid out to the injured party the bodily injury limits available under that driver’s liability policy. The Plaintiff then sought UIM coverage under his parent’s own household automobile insurance policies. The family had two (2) such policies.

The court noted that intra-policy stacking had been validly rejected by the family. However, it was indicated that the family could not waive inter-policy stacking because one of the policies was a multi-vehicle policy that insured multiple vehicles.

The multi-vehicle policy contained a household vehicle exclusion. Under the family’s second household automobile insurance policy there was also a household exclusion but the carrier had determined that, under the separate and different language of that exclusion, that exclusion did not serve to exclude coverage.

As such, the carrier paid out UIM benefits under one of its policies but denied coverage under the second policy by virtue of the household exclusion.

In its Opinion, the Third Circuit provided a thorough overview of the recent Pennsylvania jurisprudence on the law of the validity of the household exclusion, including such cases as the Gallagher and Donovan cases in which there was a discussion regarding household exclusions, at times, acting as de facto stacking waivers and violations of 75 Pa. C.S.A. §1738.

The court noted that a crucial distinguishable fact involved in the case before it, as compared to the facts in the Gallagher and Donovan cases was that, in the case before it, the injured party was driving an uninsured dirt bike whereas in the Gallagher and Donovan cases, the injured parties were operating insured motorcycles.

The Third Circuit additionally noted that the Pennsylvania Supreme Court has cautioned that the Gallagher case “should be construed narrowly.” [citations omitted] See Op. at 15. The Third Circuit predicted that the Pennsylvania Supreme Court would conclude that the collective logic of the previous cases of Gallagher, Donovan, Eichelman, and Mione is that a household vehicle exclusion is only valid if, (1) a policy insureds the vehicle involved in the accident, (2) that policy provides UIM coverage on that vehicle, and (3) the household vehicle exclusion of a second policy sought to stack on top of the first policy would exclude UIM coverage for that vehicle. See Op. at 20.

Since the first condition was not satisfied in this case, the court found that the household vehicle exclusion was valid and forceable.

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


I send thanks to Attorney Candace Edgar of the Camphill, PA office of Marshall Dennehey for bringing this case to my attention.

Carrier Faulted For Improperly Denying Stacked UIM Coverage

In the case of McGuire v. Nationwide Affinity Ins. Co., No. 2:23-CV-1347-NR (W.D. Pa. Sept. 11, 2024 Ranjam, J.), the Western District Court addressed stacking issues relative to a UIM claim.

The parties agreed that the insured on the policy, who was the father of the injured party, had waived stacking coverage on that policy.

However, the injured party argued that the waiver at issue had applied to an earlier policy, and not the policy that he sought coverage under for the subject accident.

Nationwide disagreed and asserted that the operative policy was merely a “renewal” of the prior policy to which the stacking waiver already applied.

After comparing the two (2) policies, the court concluded that the operative policy of insurance was not a “renewal” policy.  Accordingly, the court granted Plaintiff’s Motion for Summary Judgment and held that Nationwide had breached its contract by denying stacking based on his father’s prior waiver.

Given that the Plaintiff had effectively withdrawn his bad faith claim, the court granted Nationwide’s Motion relative to that claim only.

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

I send thanks to Attorney Anthony Gianetti of the Pittsburgh office of Swartz Culleton, P.C., for bringing this case to my attention.

Summary Judgment Granted Based on Open and Obvious Doctrine Regarding Accident Involving Pothole

In the case of Holmes v. 746 Union Development, LLC, No. 2021-C-1461 (C.P. Leh. Co. Sept. _ 2023 Cohen, J.), the various Defendants filed a Motion for Summary Judgment after the Plaintiff fell from her electronic personal mobility device/scooter when she hit a pothole while attempting to cross a street in Allentown.

The court granted the Defendant’s Motion filed by the Defendant City.  In his decision in this matter

Judge Zachary J. Cohen
Lehigh County

Judge Zachary J. Cohen of the Lehigh County Court of Common Pleas held that the Plaintiff could not recover as a matter of law where she admitted in her deposition testimony that she was not watching where she was going as she attempted to cross the street in her mobility scooter.

The court additionally noted that the record revealed that, if the Plaintiff had been watching where she was going, she would have seen and avoided the obvious pothole in the road.

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


Source: “The Legal Intelligencer Weekly Case Alert” www.Law.com (Aug. 29, 2024).

Summary Judgment Affirmed in Black Ice Case Where Plaintiff Could Not Confirm That She Was Caused To Fall By Ice

In a decision marked "Non-precedential" [Why mark any decision non-precedential?!] in the case of Bywater v. Conemugh Mem. Med. Ctr., No. 1072 WDA 2023 (Pa. Super. Aug. 5, 2024 Kunselman, J., Murray, J., and McLaughlin, J.) (Op. by Kunselman, J.), the Pennsylvania Superior Court addressed the liability of a Defendant landowner in a black ice case.

According to the Opinion, at the time of the incident, in a medical center’s parking lot, the Plaintiff slipped and fell against her car when she stepped out of her vehicle. The Plaintiff then perceived that her clothes were wet. However, at her deposition, she did not testify that she saw or felt any ice in the area where she allegedly slipped.

According to the Opinion, no precipitation had recently fallen. There was snow on the ground and the sidewalks were salted. Temperatures had remained below freezing during the week leading up to the incident.

The reproduced record before the Court revealed that, at her deposition, the Plaintiff stated that she looked around and “there was nothing there.” As to why she believed that ice was involved, the Plaintiff stated that, “...[b]ecause you can’t see black ice. Why else would I fall?”

The Superior Court affirmed the entry of summary judgment in favor of the Defendant landowner given that the case established that the Plaintiff only assumed that she slipped on ice, which she never actually saw or detected.

The appellate court also noted that there was no other witness to confirm whether or not any black ice was involved in the incident.

The Pennsylvania Superior Court in affirming summary judgment noted that, “[s]imply stated if [the Plaintiff] could not see the ice that she allegedly fell upon, neither could anyone working for the medical center. If the medical center’s staff could not see the ice, then the medical center neither knew nor should have known that a dangerous, icy condition existed in its parking lot on the morning [the Plaintiff’s] fall.”

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

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

Source of image:  Photo by Egor Kamelev on www.pexels.com.

Medical Malpractice Plaintiff Must Show Systemic Negligence to Support a Corporate Negligence Claim in a Med Mal Case

In the non-precedential decision in the case of Wandell v. Robert Packer Hospital, No. 1532 MDA 2023 (Pa. Super. Aug. 7, 2024 Stevens, P.J.E., Olson, J., and Kunselman, J.)(Mem. Op. by Stevens, P.J.E.), the court affirmed the entry of summary judgment in favor of a Defendant hospital in a medical malpractice case.

The Superior Court noted that hospital corporate negligence is limited to instances in which a Plaintiff demonstrates systemic negligence.

The court additionally noted that, except in obvious cases that are within a layperson’s general understanding, a Plaintiff must present expert testimony establishing the generally excepted standard of care in a medical malpractice case along with the healthcare provider’s breach of duty.

More specifically with respect to this case, the court agreed with the trial court that the fact that a nurse left a room during the course of treatment did not automatically establish a hospital’s negligence. The court noted that medical issues regarding the standard of care and whether the nursing staff deviated from the standard of care required expert reports. 

In this case, the court noted that the Plaintiff had failed to offer any expert testimony relative to the applicable standard of care. As such, the entry of summary judgment by the trial court was affirmed.

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 law firm in Philadelphia for bringing this case to my attention.

Plaintiff's Med Mal Experts Permitted to Testify But Scope of Testimony Somewhat Curtailed

In the case of Rotella v. Community Medical Center, No. 2022-CV-3943 (C.P. Lacka. Co. Sept. 5, 2024 Nealon, J.), the court addressed motions seeking to preclude defense expert witness in a medical malpractice case.

According to the Opinion, the Plaintiffs filed a Motion In Limine seeking to preclude the testimony of various expert witnesses for the defense on several grounds.

First, the Plaintiff asserted that the experts do not satisfy the competency requirements as set forth in Section 512 of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 Pa. C.S.A. §1303.512.

The Plaintiffs additionally asserted that the testimony of the multiple defense experts concerning causation was needlessly cumulative.

Third, the Plaintiff asserted that two (2) of the experts discussed irrelevant and unfairly prejudicial information in their Pre-Trial Reports regarding unrelated medical condition.

After his review of the record before him, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas ruled that, based upon the expert reports and the CVs submitted, the defense experts at issue were found to possess the necessary qualifications to address the medical causation issues.

Judge Nealon additionally found that the opinions of the various defense experts were from different medical specialties and distinct clinical perspectives and, as such, constituted corroborative, rather than needlessly cumulative evidence.

As to the third issue, Judge Nealon granted the Plaintiff’s Motion In Limine and found that, since the infectious disease care provided to the male Plaintiff was not a subject of the Plaintiffs’ negligence claims, the defense infectious disease expert would be precluded from offering opinions that the infectious disease treatment in the matter complied with the standard of care.

Judge Nealon additionally ruled that, given that the COVID-19 pandemic did not affect the care involved in this case or otherwise impact the applicable standard of care, the defense corporate liability expert would be barred from mentioning “hospitals across the country were be inundated with patients who were victims of the COVID pandemic” at the time of the male Plaintiff’s hospitalization.

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

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Presenting At This Week's Monroe County Bench Bar Conference

 

Monroe County Bench Bar Conference

Friday, October 4, 2024

Northampton Community College-Pocono Campus

Click here for a list of sessions* and presenters. *Schedule subject to change.

[Daniel E. Cummins and Paul T. Oven presenting 2024 Civil Litigation Update]

If you wish to register to attend the Monroe County Bench Bar Conference set for this Friday, October 4, 2024, please click this LINK.

If you choose not to register/pay on-line, email Paige at info2@monroebar.org with attendee name(s). Checks may be mailed to MCBA, 913 Main Street, Stroudsburg PA 18360 or call MCBA to pay via credit card over the phone.

Non-members are welcome to attend.  

Non-members may use the below contact information for any questions on how to register

Questions? Please call 570.424.7288 or email MCBA.

Attorney-Client Privilege Did Not Attach With Ploy Of Routing Documents Through an Attorney

In the case of HU.S. v. CVS ealth Corp., No. 2:16-CV-01582-GAM (E.D. Pa. Aug. 15, 2024 McHugh, J.), the court addressed the applicability of the attorney-client privilege asserted against discovery requests in a civil litigation matter involving an action against the retail pharmacy chain.

After reviewing the documents in question and concluding that a majority of the communications did not relate to any legal advice or questions that required the information to be identified as privileged, the court granted Plaintiff’s Motion to Compel the production of the documents in question.

According to the Opinion, the documents at issue, involve business communications over CVS’ shipping processes.

The court noted that the broad claim of attorney client privilege asserted by the Defendant was not proper in this case given that such protections are not automatically provided simply because documents may be routed through an attorney. The court reiterated that the documents at issue did not contain or reflect legal advice or request for legal advice and did not provide any indication that they were prepared in anticipation of litigation of any kind.

Judge McHugh noted that the “ploy” of using an attorney as an intermediary with another party for what is clearly an exchange of business information should not be endorsed by a court to serve as a means for a party to assert the attorney client privilege.

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

Source: “Article – Federal Judge Rejects CVS’ Attorney-Client Privilege Claims, Orders Retailer To Turn Over Communications In Qui Tam Action,” By Riley Brennan The Legal Intelligencer (Aug. 15, 2024).

Jurisdiction Found to Exist in Pennsylvania Due to Multiple Contacts With Pennsylvania

In the case of Duvall v. Ryder Truck Rental, Inc., No. 24-1920 (E.D. Pa. Aug. 9, 2024 McHugh, J.), the court denied a Defendant’s Motion to Dismiss on jurisdictional issues.  

The case involved alleged injuries sustained by the Plaintiff when a lift gate on a Ryder truck collapsed.

The Defendant's moved to dismissed the case principally on the grounds that the accident happened in Maryland.

The court noted that, even though the accident in question happened in another state, specific personal jurisdiction existed.   In this regard, the court noted that the Plaintiff’s employer had leased the truck at issue from the Defendant in Pennsylvania. 

It was also noted that the record revealed that the alleged negligent maintenance of the truck, which was allegedly a cause of the accident, occurred in Pennsylvania.   

The court additionally noted that the Plaintiff was a Pennsylvania resident and received worker’s compensation benefits from a Pennsylvania employer.

Based on these reasons, the Court denied the motion to dismiss.

Anyone wishing to review this decision may click this LINK.

Superior Court Rules That Seat Belt Evidence Can't Be Considered Where Plaintiff Took Seat Belt Off Just Before Accident

In a non-precedential decision in the case of Lucykanish v. Flurer, No. 541 EDA 2024 (Pa. Super. Aug. 30, 2024 Murray, J., Lane, J. and Stabile, J.)(Op. by Murray, J.)(Stabile, J., concurring, the Superior Court noted that it felt compelled to reverse the entry of summary judgment in a motor vehicle accident case in which the Plaintiff alleged negligence on the part of the driver for stopping quickly at a point in time after the Plaintiff had removed a seat belt to retrieve a cell phone from the floor of the vehicle.

The court ruled that Pennsylvania’s seat belt law 75 Pa. C.S.A. §4581(e) generally prohibits evidence of seat belt non-use as being used to show contributory negligence on the part of an injured party.

After reviewing the trial court's decision in which summary judgment was granted on the basis, in part, that no negligence on the part of the defendant-driver was shown to be the cause of the Plaintiff's alleged injuries where the Plaintiff had taken their seat belt off before the Defendant driver had stopped short due to a situation on the roadway ahead, the Superior Court noted that the trial court's reliance on the fact that the Plaintiff was not seat belted was an improper consideration.  The Court noted that reference to that evidence should have been excluded from the analysis.

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 Ryo Kawasaki on www.unsplash.com.

Corrected Link For Judge Nealon's Hills and Ridges Decision in White v. Nesbeth Case

Here is the corrected LINK for the case highlighted in the September 27, 2024 Tort Talk post on Judge Terrence R. Nealon's hills and ridges decision in the White v. Nesbeth case.

Apologies for any confusion or consternation caused by the incompleted Link in the original post.

Summary Judgment Granted in Lackawanna County Slip and Fall Case

In the case of White v. Nesbeth, No. 2022-CV-2147 (C.P. Lacka. Co. Sept. 17, 2024 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted summary judgment in favor of a Defendant homeowner under the hills and ridges doctrine in a slip and fall case.  The Opinion provides an excellent, thoroughly researched overview of the current status of the hills and ridges doctrine in Pennsylvania.

According to the Opinion, the Plaintiff, who was considered to be an invitee, and who was making a Door Dash delivery to the Defendants’ residence during an ongoing storm of “freezing rain and sleet,” allegedly slipped and fell on the homeowner’s sidewalk.

According to the record before the court, the Plaintiff’s deposition testimony acknowledged the existence of persistent freezing precipitation falling at the time of the incident. The Plaintiff additionally conceded that he did not observe or feel “any kind of an accumulation.” The Plaintiff additionally confirmed that he did not “notice anything” on the sidewalk.

After the completion of discovery, the Defendants filed a Motion for Summary Judgment relying upon the hills and ridges doctrine.

The Plaintiff responded by arguing that, since the landowner applied rock salt to the sidewalk approximately forty-five (45) minutes before the Plaintiff arrived, the hills and ridges doctrine was in applicable due to “human intervention” which allegedly altered the “natural accumulation” that was falling at the time.

In granting summary judgment, Judge Nealon noted that there was no dispute that general slippery conditions prevailed at the time of the incident as a result of a continuous winter event and precipitation.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon also emphasized that no party or witness had identified or specifically described the condition upon which the Plaintiff allegedly fell.

In his Opinion, Judge Nealon pointed to appellate case law holding that a landowner is not obligated to salt their sidewalk while winter precipitation remains in progress.  He also ruled that, in any event, since the record lacked any evidence that the application of rock salt somehow created dangerous condition or increased the natural hazards of the existing ice, the hills and ridges doctrine still applied and governed the negligence claim presented.

Judge Nealon ultimately held that, even when the record is examined in the light most favorable to the Plaintiff as required by the applicable motion for summary judgment standard of review, the evidence presented was insufficient to establish a prima facie cause of action under the hills and ridges doctrine.

Accordingly, summary judgment was entered in favor of the homeowner.

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

Judge Nealon Provides Thorough Review of Current Status of Law on Proper and Timely Service of Process

In his recent detailed decision in the case of Potts v. Notariani, No. 2022-CV-1161 (C.P. Lacka. Co., Sept. 19, 2024 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas provided a thorough analysis of the current status of the law applicable to the requests for dismissals of civil litigation matters due to a Plaintiff's failure to complete service in a timely fashion.

In this case involving a pro se prisoner Plaintiff, the record confirmed that the Plaintiff did not follow the Rules of Civil Procedure for the completion of service of original process.  Service had not been completed over the 30 months since the lawsuit was filed.

As such, Judge Nealon ruled that the Court had no jurisdiction over the matter and the case was therefore dismissed.

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

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Motion To Dismiss Personal Injury Claims Against Lyft Denied

In the case of Doe v. Lyft, Inc., No. 2:23-cv-03990-KSM (E.D. Pa. July 19, 2024 Marston, J.), the court addressed a Motion to Dismiss filed by a transportation network company, Lyft, Inc., and its former driver in connection with an alleged sexual assault committed by the driver.  The court granted the Motion to Dismiss but allowed the Plaintiff the right to amend.  

In part, the court held that the Plaintiff failed to allege an actionable claim for negligent supervision where she alleged, for the first time in opposition to the Defendant’s Motion to Dismiss, that its driver was the subject of four prior passenger complaints.  The court allowed the Plaintiff leave to file an Amended Complaint to more specifically plead the negligent supervision claim.  

The court also found that the Plaintiff’s negligent undertaking claim failed for two reasons. First, the court found that the Plaintiff failed to allege that the Defendant undertook to protect her from its ride share driver.  While the Plaintiff seemed to link the Defendant’s provision of ride share services with a duty to protect her from harm as a rider, the Plaintiff did not allege a “specific undertaking” by the Defendant in that regard.  

Additionally, the court found that, even if the Defendant allegedly undertook a duty to protect the Plaintiff, the Plaintiff failed to state a claim for negligent undertaking because she asserted only that the Defendant should have provided additional safety features on its platform, not that it implemented its existing scheme negligently.  

Accordingly, the court dismissed the Plaintiff’s negligent undertaking claim.  However, this claim was dismissed without prejudice to the Plaintiff’s right to file an Amended Complaint.

The Plaintiff’s separate negligent misrepresentation claim broadly alleged that the Defendant falsely advertised itself as a safe rideshare option.  The court dismissed this part of the claim after finding that, to the extent the Plaintiff did allegedly identify actionable statements by the Defendant in its marketing materials, the Plaintiff still failed to plead facts suggesting that these statements were false and, as such, the Plaintiff had not stated a valid claim of negligent misrepresentation.  Although the court dismissed this claim as well, the Plaintiff was again allowed an opportunity to file an Amended Complaint.

The court also dismissed the Plaintiff’s claim for punitive damages, without prejudice.  The court allowed the Plaintiff the opportunity to replead those allegations should she have facts to support the same. 

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,” www.Law.com (Aug. 9, 2024). 

Source of above image: Photo by Thought Catalog on www.unsplash.com.

Pennsylvania Superior Court Provides Ruling on Stacked UIM Coverage Issues

In the case of Baclit v. Sloan, No. 793 WDA 2023 (Pa Super. Aug. 16, 2024 Lazarus, P.J., Panella, P.J.E., and Beck, J.) (Op. by Beck, J.), the Pennsylvania Superior Court addressed an issue regarding UIM stacking and coverage in a case it labeled as a one of first impression.

The Plaintiff sustained injuries while aiding another driver who had been involved in a single car accident. The driver who had been involved in an accident had crashed into a retaining wall of a bridge.

The Plaintiff, who had been driving a vehicle owned by his mother, had stopped and gotten out of his vehicle to provide assistance.  While the Good Samaritan Plaintiff was assisting the injured driver of the other vehicle, the Plaintiff fell from the bridge retaining wall and suffered injuries that resulted in his death.

The liability carrier for the driver who had crashed into the bridge tendered its $100,000.00 limits to the Plaintiff’s estate.

The Plaintiff’s estate also recovered the UIM benefits available under the vehicle he was operating which was owned by his mother.

At the time of the incident, the Plaintiff’s decedent was also insured by Progressive relative to his separate motorcycle, which policy included $15,000.00 in UIM coverage. Progressive paid those limits in accordance with the terms of that policy.

At the time of his death, the Plaintiff’s decedent was also the owner of a trucking business. Under that trucking business, there was a commercial automobile insurance policy under which the company was the named insured and the Plaintiff's decedent was designated as a driver.

There was no waiver of stacking signed by the deceased under that policy. The decedent had paid the premiums for stacking.

Under the facts of this case, the insurance company  that covered the decedent's business had charged a premium for stacking when there was just one (1) vehicle on the policy.  That carrier then denied that stacking applied.  The Plaintiff asserted that this position by the carrier should have been viewed as an improper de facto waiver of stacking.

Both the trial court and the Superior Court cited to the Pennsylvania Supreme Court of Gallagher v. Geico and emphasized that the Plaintiff's decedent paid increased premiums to obtain stacked UIM benefits under the policy and, as such, reasonably expected to receive those benefits.

Here the Superior Court reasoned that, unless the Plaintiff's decedent was a named insured under the policy, that carrier’s limited definition who can constitute an “insured’ for purposes of collecting stacked UIM benefits under this single vehicle business automobile insurance policy would violate the Motor Vehicle Financial Responsibility Law. The court found that this was so given that the carrier, based on its argument, would be asserting a waiver of stacking despite the premium charged and paid, without having secured any signed waiver of such stacking coverage of the injured party.

Ultimately, the Pennsylvania Superior Court ruled that the decedent was an insured under the policy and was entitled to stacked UIM coverage.

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


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

Court Chides Parties' Post-Trial Submissions in Medical Malpractice Case

In the case of Melendez v. Mo, Aug. Term 2018, No. 01939 (C.P. Phila. Co. Oct. 2, 2023 Levin, J.), a court addressed post-trial motions in a medical malpractice case.

In its decision, the court noted, at the outset, that it was surprised by the parties’ post-trial submissions in terms of the quality of the same. The court noted that the Defendants’ post-trial motion was a scattershot, stream of consciousness list of complaints with no discernable order or plan. The court also noted that the Defendants’ post-trial brief in support of its post-trial motion appeared disconnected from the post-trial motion itself, never referring to the motion or any of the various arguments. The court noted that some of the Defendant’s arguments from the brief were waived as they were not even mentioned in the motion itself.

With respect to the Plaintiffs’ responsive brief, the court also found this submission to be rambling in failing to address many of the issues raised by the Defendant at any meaningful length, if at all.

The court noted that it was unaware of a sanction that might apply where a non-moving party failed to address the majority of a moving party’s issues in a court ordered brief but that if such a sanction existed, it would have applied in this case. See Op. at 16-19.

In the end, the court found that the issues raised in the Defendants’ post-trial motions in this case involving an $18 million dollar verdict were either waived or without merit.

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


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

Allegations of Recklessness Continue to Be Upheld

In the case of Celli v. Endless Mountain Extended Care, LLC, No. 2023-CV-5141 (C.P. Lacka. Co. Sept. 12, 2024 Nealon, J.), the court addressed various issues regarding the pleadings in a trip and fall case.

According to the Opinion, a Lackawanna County Plaintiff was undergoing in-patient treatment at a Wyoming County facility when he fractured his ankle during recreational activities on the Plaintiff’s sports field.

The court addressed various Preliminary Objections filed by the Defendant clinic and the Defendant landowner.

With regard to one of the Preliminary Objections, the court denied the objection to the allegations of recklessness and continued to trend of cases holding that recklessness can be pled in any case where negligence is alleged.  Judge Nealon again referenced the rationale that, given that recklessness is an allegation as to a state of mind, under Pa.R.C.P. 1019 and appellate precedent reviewing the same, allegations of recklessness are permitted to be generally pled under Pa. R.C.P. 1019.  

As part of its analysis of this issue, the court pointed, in part, to the article entitled "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).

The court also separately allowed the claims of punitive damages to proceed after finding that sufficient facts were pled to support that claim..

Judge Terrence R. Nealon
Lackawanna County

With regards to other issues raised, the court found that, given that the patient had charged the owner of the premises with misfeasance for personally participating in the tortious activity, the Plaintiff did not need to pierce the clinic’s corporate veil in order to sue the owner. 

Rather, the court found that the Plaintiff may instead impose the individual liability on the owner under a participation theory where it is alleged that the owner of the premises allegedly directed the drilling and digging of the various holes in that field as part of a proposed facility expansion.  It was also noted that the landowner had also encouraged the clinic’s patient to participate in recreational activities on that field even though the owner knew that other patients had been previously injured due to the numerous holes the field that were allegedly concealed by overgrown grass.

Lastly, the trial court rejected any venue challenge by the Defendants after finding that the venue in Lackawanna County was proper as to the owner given that the owner resided in Lackawanna County and was served with original process in Lackawanna County.  Judge Nealon also reasoned the venue was proper as to all Defendants where the patient was asserting joint and several liability against the clinic and the owner. Accordingly, the court found that the venue was proper as against both Defendants under Pa. R.C.P. 1006(c).

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

Case Dismissed For Lack of Activity Where Plaintiff Did Not Document Any Steps To Complete Service

In the case of Villacreses v. Kalahari Resorts, No. 4259-CV-2023 (C.P. Monroe Co. April 17, 2024 Zulick, J.), the court granted the Defendants’ Preliminary Objections against the Plaintiff’s failure to timely serve original process and also due to the fact that the statute of limitations had expired.

According to the Opinion, the case involved a slip and fall that occurred on August 1, 2021.

The Complaint was filed on July 12, 2023 but was not served on the Defendants with in the thirty (30) days required by Pa. R.C.P. 401(a).

Approximately three (3) months later on October 11, 2023, the Complaint was reinstated. The reinstated Complaint was served on the Defendants on October 23, 2023 and on another set of Defendants on November 1, 2023. The Defendants then filed the Preliminary Objections at issue.

In its decision, the court noted that, in the Plaintiff’s Response to the Preliminary Objections, the Plaintiff did not provide any further information about her efforts to obtain service. Nor did the Plaintiff request a hearing to present evidence on her efforts to make service. Nor did the Plaintiffs submit any documentary evidence or depositions on the issue.

Although the Plaintiffs asserted in their response that they did make efforts, the court noted that the court’s docket did not reflect any action on the Plaintiffs’ part from the date of the filing of the Complaint in July of 2023 until a Praecipe to Reinstate was filed in October of 2023, three months later.

Judge Zulick noted that, based upon the recent Supreme Court precedent, including the Gussom decision, where the evidentiary burden is placed upon the Plaintiff to show a good faith effort to complete service and where the law states that “proof” is required, the Plaintiff cannot rely upon a docket that shows no activity or a response to Preliminary Objections that does not detail any good faith effort to complete service.  Judge Zulick also noted that a Plaintiff cannot rely upon statements in a Brief in opposition to the Preliminary Objections. 

The court noted that, in this case, similar to the facts in the Gussom case, an attempt at service was timely made by the Sheriff, but the Plaintiff allowed 3 ½ months to then go by from that point with no further activity.

Judge Zulick reiterated that the Supreme Court made clear in Gussom that a Plaintiff’s attorney must make a record of the good faith attempts that have been completed to obtain service.  Given that no such record was created in this matter, the court sustained the Preliminary Objections based upon a lack of timely service and dismissed the Complaint.

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