Wednesday, January 31, 2024

Sudden Emergency Doctrine Not Applicable in Every Pedestrian Case

In the case of Olar v. Bennett, No. 703 WDA 2022 (Pa. Super. Dec. 29, 2023 Bender, P.J.E., Lazarus, J., and Kunselman, J.) (Op. by Lazarus, J.), the Pennsylvania Superior Court ruled that a trial court committed error at trial by giving the Defendant’s requested sudden emergency jury instruction and requested driver’s duty of care instruction in a case where the Defendant driver struck pedestrians.

The Superior Court ruled that the evidence did not support a determination that the Defendant was confronted with a sudden and unforeseeable occurrence.

According to the Opinion, the pedestrian Plaintiffs had left a party at approximately 11:30 p.m. at night and were crossing a two-lane road that was lit with streetlight to return to a parking lot and their car when the Defendant’s minivan struck them as they were crossing the road.

According to the Opinion, the Defendant driver testified that he had a clear view of the road in front of him, was going 20-25 mph in a 25 mph zone, and that he did not see the Plaintiffs until he hit them. The Defendant tested negative for any drugs or alcohol.

The Plaintiffs presented an expert accident reconstructionist who testified that the Plaintiffs would have been visible at a distance of nearly 300 feet. The expert also testified that, even if the Defendant were traveling at a higher speed of 30 mph, he still could have been able to stop his vehicle prior to striking the Plaintiffs if he had been paying attention.

Moreover, the sole eyewitness to the accident testified that he saw the Plaintiffs enter the road at a slow pace, that is, the Plantiffs did not dart out, and that he did not hear any horns, skidding or screeching tires before the Plaintiffs were hit.

The Superior Court noted that a driver’s duty of vigilance and attentiveness was required just as much during daylight, if not more, at night.

The Superior Court held that it was error for the trial court to give the requested sudden emergency instruction as night driving was not an emergency and given that a driver had a duty to adjust his or her speed based upon road conditions and visibility so as to ensure his ability to react to foreseeable events.

It was additionally emphasized that this was not a “dart out” case in terms of the actions of the Plaintiffs.

The appellate court found that the trial court’s failure to instruct the jury on the driver’s duty of care precluded a clarification of a material issue in the case for the jury.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 16, 2024).

Source of image:  Photo by Hooman R. on

Monday, January 29, 2024

Pennsylvania Supreme Court Upholds Validity of Regular Use Exclusion

On January 29, 2024, the Pennsylvania Supreme Court issued its long-awaited, 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.).

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.  

The Plaintiff recovered the liability limits from the tortfeasor's policy and the UIM limits 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 to deny coverage on the UIM claim.

The trial court and the 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 of the provision of UIM coverage to insureds by limiting 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 uses but does not own.

As noted, in its decision, the Pennsylvania Supreme Court reversed the lower courts' decisions and upheld the validity and enforceability of the Regular Use Exclusion.

In so ruling, the Pennsylvania Supreme Court pointed to prior decisions it had rendered repeatedly upholding the validity of the Regular Use Exclusion.  The Court found the Plaintiff's arguments in this case to be a mere recitation of at least one of the same arguments that had been previously rejected by the Court relative to the validity of the Regular Use Exclusion.

The Supreme Court rejected the Plaintiff's argument 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 rejected this argument.

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 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 clarified and narrowly limited its Gallagher decision in its more recent decision in the case of Erie Insurance Exchange v. MioneSee Op. at p. 31-32.  In Mione, the Court had confirmed that the Household Exclusion remained valid and applicable except possibly in cases where the insured was attempting to stack coverage under 75 Pa.C.S.A. Section 1738.

Here, in Rush v. Erie Insurance Exchange, the Supreme Court ruled that "[i]f 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."  See Op. at p. 36.  

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.  Id.

The Supreme Court in Rush also specifically held that the Regular Use Exclusion remained a permissible limitation of UIM coverage within the language of the MVFRL and that, "[w]ith decades of reliance by insureds and insurers, and no justification to allow this Court to depart from decades of established law," the Court 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."  Id. at p. 36-37.

Ultimately, the Supreme Court overruled the lower court decisions and held that the Regular Use Exclusion remained valid and enforceable.

Anyone wishing to review the Majority's Opinion may click this LINK.  Justice Wecht's Concurring Opinion can be viewed HERE.

Source of image:  Photo by d koi on

Court Addresses Issues Arising From Accident Between Rider Mower and Passing Motorist

In the case of Barrick v. Koontz, No. 2019-SU-001700 (C.P. York Co. Jan 8, 2024 Vedder, J.), the court granted summary judgment in favor of the Defendants in a case involving a collision between a Plaintiff on a rider lawnmower and a truck that was passing on the roadway.

According to the Opinion, the Plaintiff-husband, who was on the lawnmower, did not have any memory of the accident and the Plaintiff-wife was not present to witness the accident. The only individuals with any memories of the crash were the Defendant driver and a motorist who was traveling in another vehicle behind the Defendant’s vehicle.

The record also confirmed that the Plaintiff admitted in the case that, as the Defendant driver was driving his truck past the Plaintiff’s property, the Plaintiff’s lawnmower came off a bank and from behind a bush on the property and entered the roadway.

In his Opinion, Judge Vedder addressed multiple issues on the liability question as presented by both sides of the case, including issues regarding the law of negligence, duties owed when entering roadways, expert issues, the last clear chance doctrine, the assured clear distance ahead rule and the mere happening of an accident rule. In the end, the court found that the Plaintiff failed to produce evidence to establish a prima facie case of negligence against the Defendants, specifically with respect to the alleged breach of any duty.

As noted, the court entered summary judgement in favor of the Defendant motorist.    

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

I send thanks to Attorney Stephen M. Hickey of the York, PA law firm of Griffith, Lerman, Lutz & Scheib for bringing this case to my attention.

Mock Trial Jurors Needed for Wednesday


Friday, January 26, 2024

Tort Talk Has Surpassed 4,000 Blog Posts


Tort Talk has posted its 4,000th Blog post since beginning in May of 2009.  

Thank you to all the Tort Talkers for the continuing tips on important new decisions and for your readership.

Will try to keep 'em coming.

Wednesday, January 24, 2024

Defendant's Motion for Sanctions Regarding Inability To Complete Autopsy Denied by Court

In the case of Estate of Eddy v. Saber Healthcare Group, LLC, No. 2022-CV-1553 (C.P. Dec. 15, 2023 Nealon, J.), the court addressed a motion by medical malpractice Defendant for spoliation sanctions. In this case, the decedent’s son filed a wrongful death lawsuit against a nursing care facility alleging that his mother fell and suffered blunt forced trauma to her head due to the facilities negligence, which negligence result in the decedent’s death nine (9) days after that injury. The Plaintiff also alleged that the facility misrepresented that the decedent died from “end-stage dementia” rather than blunt force trauma.

The son maintained that the facility never advised him of his mother’s fall down event and/or head injury prior to her death and that, upon viewing his mother’s head wound and bandaging at the funeral home, which did not correlate with the cause of death explanation provided by the facility, the son contacted an attorney who recommended that the son have an autopsy completed, which was done.

The forensic pathologist who completed the autopsy authored a report identifying blunt force trauma of the head, dehydration, and malnutrition as pathological diagnoses. The decedent was then cremated shortly thereafter.

During the course of this litigation, certain Defendants filed the Motion for Spoliation Sanctions seeking to have the case dismissed with prejudice or, in the alternative, to preclude any autopsy evidence and to have an adverse inference instruction issued based upon the son’s alleged deliberate spoliation of evidence by way of cremating his mother’s body which thereby deprived the facility of its own opportunity to conduct its own autopsy.

After reviewing the record before him, Judge Nealon noted that a litigant has a duty to preserve relevant evidence if that party knows that litigation is pending or likely and it is foreseeable that spoliation of that evidence will prejudice the opposing party.

Here, the court found that the wrongful death claim against the facility did not become likely until the forensic pathologist authored the autopsy report in March of 2021, almost two (2) months after the mother’s body had been cremated.

The court noted that no evidence was offered during the evidentiary hearing on the motion which suggested that the son or his attorney knew of the forensic pathologist’s autopsy conclusions when the mother’s body was cremated.

It was additionally noted that credible evidence was presented at the hearing which established that the facility had opportunities to examine and inspect the mother’s body and head injuries, or arguably to request an autopsy, before it released the decedent’s body the funeral home after the facility had certified that the decedent had died from “end-stage dementia.”

Judge Nealon otherwise noted that there also remained other relative evidence available to the defendant facility to dispute or otherwise challenge the son’s claim that his mother instead died from blunt force trauma to the head, dehydration, and malnutrition.

Therefore, after consideration of the alleged degree of fault on the part of the son and his attorney in connection with the spoliation of the decedent’s corpse, the extent of any alleged resulting prejudice to the defendant facility, and the facility’s alleged ability to use other existing evidence to remedy any claimed disadvantage, the Motion for Spoliation Sanctions was denied.

Judge Nealon additionally ruled that the facility would be permitted to present evidence at trial pertaining to the spoliation of the evidence at issue so that the jury may assess that evidence whatever weight the jury deem it was entitled to receive.

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

Looking To Bring a Case to a Close?


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Tuesday, January 23, 2024

Notable Superior Court Decision Granting Preliminary Objections on Venue Issues in a Philadelphia County Case

Philadelphia Skyline

In the case of Watson v. Baby Trend, No. 2356 EDA 2022 (Pa. Super. Jan. 12, 2024 Stabile, J., Dubow, J., and Sullivan, J.) (Op. by Dubow, J.), the court affirmed a trial court’s sustaining of a Defendant’s Preliminary Objections to venue and the transfer of the case from Philadelphia County to Bucks County in a products liability case.

According to the Opinion, the Plaintiffs’ infant daughter died allegedly due to asphyxiation while sleeping in a car seat manufactured by Baby Trend.

The Plaintiffs had purchased the car seat from Babies R Us.

The Defendant at issue, Baby Trend, was a California based corporation with no registered offices in Pennsylvania.

The Plaintiffs reside in Bucks County and the incident occurred in Bucks County.

According to the Opinion, the Defendant, Baby Trend, had no physical presence or authorized dealer in Philadelphia County.

In attempting to keep the case in Philadelphia County, the Plaintiff argued that Baby Trend regularly conducted business in Philadelphia County because it derived 5% of its gross national sales from the city. That calculation by the Plaintiff included sales conducted through big-box retailers, which made up the vast majority of the California Defendant’s business.

The Superior Court ruled, however, that big-box sales should not be included in the calculation of a company’s business within a given county. The court ruled that, once the Defendant in this case sold its product to big-box retailers, it had no control over where the retailers sold the products. Accordingly, the Superior Court noted that, in such circumstances, it is the big-box retailer, and not the Defendant at issue, who was engaged in the act of selling the product to the customers.

According to the Opinion, with the big-box revenue removed from the calculation, the Defendant at issue was noted to only derive 0.0018% of its total sales from Philadelphia.

The court ruled that the Defendant’s minimal direct website sales to consumers in Philadelphia County was de minimis and purely incidental.

Accordingly, the Superior Court affirmed the trial court’s findings that the Defendant’s lack of significant sales in Philadelphia County, combined with the Defendant’s lack of physical presence within the city, supported the Defendant’s argument that the Philadelphia Court of Common Pleas was an inappropriate venue for the case.

As such, the trial court’s ruling that sustained the Defendant’s Preliminary Objections and transferred the case to Bucks County was affirmed.

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

Source: Article – “Superior Court Ruling Gives Businesses Post-‘Hangey’ Path to Challenge Venue,” By Aleeza Furman of the Pennsylvania Law Weekly (Jan. 16, 2024).

Court Grants Plaintiff What He Paid For In UIM Coverage Question Case

In the case of Erie Insurance Exchange v. Eachus, 2023 Pa. Super. 264 (Pa. Super. Dec. 12, 2023 Panella, P. J., Dubow, J., Sullivan, J.)(Sullivan, J.), the court affirmed the entry of summary judgment in favor of the insurance company in a case involving a dispute over the insured’s entitlement to certain uninsured and underinsured motorist benefits.

More specifically, the insured was asserting an entitlement to higher uninsured and underinsured motorist benefits under the policy even though the insured requested lower limits in signed documentation provided to the carrier.

The court affirmed the entry of summary judgment from the lower court and found that the insured had specifically requested and executed forms providing for lower uninsured and underinsured benefits. The court also noted that the Plaintiff paid a lower premium for the lower benefits as further evidence of the insured’s acceptance of the coverage provided.

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

Source “Court Summaries” by Timothy L. Clawges in the Pennsylvania Bar News (Jan. 15, 2024).

Monday, January 22, 2024

Homeowner's Insurance Bad Faith Claim Dismissed

In the case of Qin v. Travelers Personal Ins. Co., No. 2:22-CV-03264-KNS (E.D. Pa. Dec. 15, 2023 Scott, J.), the court granted a Defendant carrier’s Motion to Dismiss a Plaintiff’s bad faith claim based upon the homeowner insurance carrier Defendant’s refusal to cover a loss because the property in question had been vacant for more than sixty (60) days prior to the date of the loss.

The court found that the Complaint lacked factual allegations to support the bad faith claim.

This case involved issues arising under a homeowner’s insurance policy.  The Plaintiff alleged that tenants had damaged a property that he owned.

The court found that the Plaintiff did not allege any facts to support a claim of bad faith and only made conclusory allegations. The court otherwise held that the allegations in the Complaint failed to satisfy the two prongs necessary to establish a bad faith claim, that being that the Defendant allegedly lacked a reasonable basis for denying benefits under the policy and that the carrier knew or recklessly disregarded its lack of a reasonable basis in denying the claim.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 5, 2024).

Source of image:  Photo by Tierra Mallorca on

Thursday, January 18, 2024

Judgment of Non Pros Entered Against Plaintiff Due to Lengthy Lack of Docket Activity

In the case of Garcia v. PPL Electric Utilities, No. 2015-CV-6565 (C.P. Lacka. Co. Dec. 19, 2023 Nealon, J.), the court granted a Defendant’s Petition for the Entry of Judgment of Non Pros against a Plaintiff due to the Plaintiff’s failure to prosecute the case.

The court noted that there was eighty-seven (87) months of docket inactivity in this case. 

Also, during the prolonged time that there was no docket activity, one of the named Plaintiffs died without being deposed, the Defendants only employees with knowledge of the alleged event had retired, and a key non-party witness had allegedly lost all memory of the subject incident that occurred back in 2013.

Judge Terrence R. Nealon
Lackawanna County

After reviewing the case before him, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas applied the law related to request for the entry of a judgment non pros and found that the record established that the Plaintiffs had failed to exercise due diligence in litigating the case with reasonable promptitude, that no legitimate reason existed in ordinate delay, and that the Defendant had suffered a substantial diminution in its ability to defend the case due to the death of a party, the retirement of former employees who originally possessed relevant knowledge, and the loss of a memory by a crucial witness relative to events that occurred a decade ago.

As such, the Defendan's Petition for the Entry of a Judgment of Non Pros was granted.

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

Wednesday, January 17, 2024

Court Rules That But For Plaintiff Approaching and Petting Dog Uninvited, She Never Would Have Gotten Hurt

In the case of Hendrix v. Freemer, No. A.D. 53 of 2022 (C.P. Forest Co. Oct. 27, 2023 Skerda, P.J.), the court granted summary judgment in a dog bite case.

According to the Opinion, the Defendants brought their dog "Oliver," a King Charles Spaniel, to a market village and had their dog on a leash. The Plaintiff came up to pet the dog and, when the Plaintiff squatted down in front of the dog, the dog bit the Plaintiff on the face. It was noted that the Plaintiff did not ask the permission of the dog owners to pet the dog.

The court ruled that, had the Plaintiff not approached the dog uninvited and attempted to pet the dog after squatting down, the Plaintiff never would have been injured.  The court stated otherwise that the reason the Plaintiff got hurt is because she chose to approach the dog, without permission or ample notice to the dog owners, and because she chose to squat down and get close to the dog.  

The court reviewed the law of Pennsylvania that requires a Plaintiff to prove that the dog owner knew or should have known of the possible dangerous or vicious propensities of the dog, and found that the Plaintiff did not produce any evidence to meet the elements of the cause of action in this case.

As such, summary judgment was granted.

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

I send thanks to Attorney William Wagner of the Erie, PA law firm of Marnen, Mioduszewski, Bordonaro, Wagner & Sinnott, LLC for bringing this case to my attention.

(570) 319-5899

Tuesday, January 16, 2024

That Time of Year Again: Mock Trial Volunteers Needed to Fill Jury Boxes


Watch Your Step -- Step Down from Raised Restaurant Table Ruled an Open and Obvious Condition -- Summary Judgment Granted

In the case of O’Meara v. Texas Roadhouse, No. C-0048-CV-2022-752 (C.P. North. Co. Dec. 21, 2023 Sletvold, J.), the court granted a Motion for Summary Judgment filed by Texas Roadhouse in a slip and fall case.

The Plaintiff alleged that she was caused to slip and fall at the restaurant as she was stepping away from her table which was up on a raised floor.

After reviewing the record before the court, which included confirmation that the Plaintiff had, minutes before her fall, observed the step in question, ascended into the booth, and then noticed a warning sign on the table about the raised area. The court also noted that, during her deposition, the Plaintiff admitted that, if she had looked down as she was leaving the booth, she would have noticed the step.

Applying the law on premises liability in Pennsylvania, the court ruled that the unobscured raised threshold to the table was an open and obvious condition and that a reasonably diligent invitee would have noticed the same. As such, the court found that the Defendant owed no duty to the Plaintiff with respect to this open and obvious condition. Accordingly, summary judgment was granted in favor of the Defendant.

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

I send thanks to Attorney Jennifer G. Shorr of the Philadelphia office of Weber Gallagher for bringing this case to my attention.

Source of Image:  Texas Roadhouse Facebook Page.

Friday, January 12, 2024

2024 Addendum to Explanatory Comment to Delay Damages Rule

Here is a LINK to the 2024 Addendum to the Explanatory Comment issued by the Pennsylvania Supreme Court regarding the calculation of delay damages under Pa.R.C.P. 238 in a personal injury civil litigation matter.

Source of image:  Photo by John Guccione on

Bad Faith Action in Fire Loss Insurance Coverage Case Dismissed

In the case of Mohanan v. Liberty Mut. Pers. Ins. Co., No. 2:22-CV-02956-RBS (E.D. Pa. Nov. 20, 2023 Surrick, J.), the court granted a Defendant insurance company’s Motion to Dismiss the Plaintiffs’ claims of violations of the Pennsylvania Unfair Trade Practices & Consumers Protection Law, negligence, and bad faith relative to coverage questions related to the alleged smoke damage to a property.

The court found that the Plaintiff’s had failed to establish any deceptive conduct on the part of the carrier in terms of the carrier’s investigation and handling of the claim. The court also found that the Plaintiff had failed to produce any evidence of any act or omission by the carrier in terms of any alleged misrepresentations of the coverage available.

The court in this case otherwise ruled that the Plaintiff’s negligence claim was barred by the gist of the action doctrine in this breach of contract case.

The court otherwise found that the Plaintiff had not pled any facts to explain why the carrier’s investigation was unreasonable.

The court additionally rejected the Plaintiff’s claim that the carrier had a special relationship with the Plaintiffs simply by virtue of the fact that the Plaintiffs had purchased an insurance policy. As such, the Plaintiff’s claim of a heightened duty of care owed to the Plaintiff was rejected.

The court additionally noted that the parties had agreed that various references to treble damages, the request for attorneys’ fees, and the request for punitive damages and consequential damages should be stricken from Complaint as improper.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 14, 2023).

Wednesday, January 10, 2024

Summary Judgment Granted Where No Evidence Presented That Dog Owners Knew of Dangerous Propensities of Dog (Or That Dog Had Any)

In the case non-precedential decision by the Pennsylvania Superior Court in the case of Warner v. Cummings, No. 463 WDA 2023 (Pa. Super. Dec. 1, 2023 Bender, P.J.E., McCaffery, J., and Stevens, P.J.E.) (Mem. Op. by McCaffery, J.), the court affirmed a summary judgment entered in favor of a dog owner in a dog bite case.

At the lower court level, the court had entered summary judgment in favor of the dog owner after finding that there was no evidence that the Defendant dog owners had any knowledge that there dog allegedly had prior vicious propensities.

In so ruling, the trial court had rejected the Plaintiff’s argument, without citation to authority, that the type of dog involved in this case, that is, Akita dogs, are a dangerous, aggressive, territorially breed such that owners should have a heightened knowledge of danger.

Here, the appellate court agreed with the trial court that the record lacked any evidence that the Defendant had knowledge of the dog’s alleged vicious tendencies prior to the alleged incident. In so ruling, the appellate court also ruled that the Plaintiff did not cite to any expert or objective evidence to support her theories with respect to the dog in question.

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

I send thanks to Attorney Thomas McDonnell and Attorney Kasey Cahill from the law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.



 (570) 319-5899

Monday, January 8, 2024

Federal Court Denies Motion To Remand To State Court, But Grants Motion To Transfer Venue

In the case of Farmington Cas. Co. v. HP Inc., No. 2:23-CV-01022-KBH (E.D. Pa. Nov. 21, 2023 Hodge, J.), the court addressed a Motion to Remand and venue issues in a fire loss subrogation claim by an insurance company.

In this case, the court declined to remand the case back to the state court given that there was diversity of the parties and the Defendant’s reference to a state court action involving other parties did not compel a decision that the case be remanded. In other words, the Plaintiff’s efforts to rely upon non-parties, who were involved in the related state court action, did not support the request for a remand in this federal court case in terms of an allegation of lack of diversity of jurisdiction.

In denying the Motion to Remand, the court further held that it could not consider discretionary factors like arguments of judicial economy in evaluating whether or not a case should be remanded.

The Eastern District Federal Court otherwise ruled that the case would be transferred to the Middle District Court of Pennsylvania given that that was where the fire occurred and where the homeowners had purchased the alleged computer that allegedly caused the fire and where the Plaintiff’s daughter, who was the executrix of the Plaintiff’s estate resided.

The court additionally noted that only one (1) corporate witness and none of the expert witnesses resided in the Eastern District, which offered further support of a transfer of the case to the Middle District.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 14, 2023).

Thursday, January 4, 2024

Court Addresses Retained Control Doctrine in Workplace Accident Case

In the case of Covanta v. D’Amico, Nov. Term 2019, No. 01334 (C.P. Phila. Co. June 22, 2023 Bright, J.), a trial court issued a Rule 1925 Opinion regarding its denial of post-trial motions in a third party liability case arising out of a workplace accident.

Of note, among the sixteen (16) claims of error addressed by the trial court were issues regarding whether a landowner Defendant who engages an independent contractor to perform work on the landowner’s property is liable for injuries to the independent contractor’s employees. In this regard, the trial court reviewed the doctrine of retained control.

After reviewing the record before it, the court found that the evidence established that the landowner did indeed regain control over the project which resulted in the Plaintiff’s injuries. In this regard, the court pointed to the landowner’s long-term history of control over the contractor’s various projects, the terms of the contract with the contractor, and the events involved in the subject incident.

The court pointed to the Restatement (Second) of Torts relative to the retained control exception to non-liability of a landowner who engages in independent contractor who has employee injured on the job.

Under the retained control exception, one who entrusts work to an independent contractor, but who retains control of any part of the work, remains subject to potential liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. 

 The court noted that this central issue to be determined in this regard is whether the employer/landowner retained control of the means and the methods of the work to be completed. In other words, did the employer/landowner successfully delegate the duty to the independent contractor to complete the entire job, or did the employer/landowner retain certain authority over the job.

As noted, the trial court had denied post-trial motions in this case.  

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

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

Superior Court Addresses Applicability of Immunity Afforded To Third Party Defendants In Work Injury Cases

In the case of Brown v. Gaydos, No. 1132 WDA 2021 (Pa. Super. Dec. 7, 2023 en banc) (Op. by McCaffery, J.)(Stabile, J., Dissenting), the Pennsylvania Superior Court addressed issues regarding whether or not a Defendant was statutorily immune from liability under Pennsylvania’s Workers’ Compensation Act as the Plaintiff’s employer or co-employee under the facts presented.

According to the Opinion, the Plaintiff sued the Defendant individual for injuries that the Plaintiff sustained while operating a skid loader that the Defendant owned.

At the time of the accident, the Plaintiff was an employee of a company which the Defendant partly owned.

According to the Opinion, the Plaintiff had previously made a successful claim for workers’ compensation from the company that both men worked for at the time of the incident. The Plaintiff then filed a civil lawsuit alleging that the individual Defendant failed to properly maintain the skid loader or train the Plaintiff on how to use the device.

The Defendant filed a Motion for Summary Judgment alleging that he was immune to the personal injury lawsuit under the Workers’ Compensation Act because he was the Plaintiff’s co-employee at the same company.

The court noted that the under the Workers’ Compensation At, employees who received workers’ compensation benefit generally may not sue their employers or co-employees for work-related injuries. Relative to protections afforded to co-employees, a co-employee may secure immunity for negligent actions that caused a Plaintiff’s injuries while the co-employee and the Plaintiff were “in the same employ.”

In this case, the Plaintiff argued that he was suing the Defendant in his capacity as the owner of the skid loader, not as a co-employee and, therefore, the Defendant was not immune from suit.

The majority of the Superior Court ruled in this matter that there were genuine issues of material facts regarding the ownership and the use of the skid loader. The majority ruled that the Plaintiff’s claim with respect to the co-employee immunity issue hinged on whether or not the Plaintiff had been working in the course of his duties as an employee of the employer company at the time of the accident.

Anyone wishing to review a copy of this decision may click this LINK.  Judge Stabile's Dissenting Opinion can be viewed HERE.

Source: Article - “Workers’ Comp Immunity May Not Shield Construction Company Owner From Job Site Injury Suit, Appeals Court Rules” by Aleza Furman of Pennsylvania Law Weekly (Dec. 8, 2023).

Source of image:  Photo by Silvia Brazzoduro on

Wednesday, January 3, 2024

Pennsylvania Supreme Court Rules that Evidence of a Product's Compliance With Industry Safety Standards Is Not Admissible in a Strict Liability Design Defect Case

In another notable victory for the Plaintiff's bar at the Pennsylvania Supreme Court level, that Court, in the case of Sullivan v. Werner Co., No. 18 EAP (Pa. Dec. 22, 2003) (Op. by Mundy, J.), addressed the issue of whether evidence of a product’s compliance with industry and government safety standards is admissible in a strict liability case following the Pennsylvania Supreme Court’s previous decision in the case of Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014).

The Pennsylvania Supreme Court ruled that such compliance evidence is inadmissible in this context. 

This case arose out of a collapse of a mobile scaffold. The Plaintiff’s complained that the scaffold was defectively designed.

In the case below, the trial court granted a Plaintiff’s Motion to Preclude the Defendants from adding into evidence any industry or governmental standards with regards to the scaffolding. After a verdict was entered in favor of the Plaintiff, this appeal followed and went up the appellate ladder.

In the Sullivan case, the Pennsylvania Supreme Court concluded that evidence of a product’s compliance with governmental regulations or industry standards is inadmissible in a strict liability design defect case to show that a product is not defective under the risk-utility theory because such evidence goes to the reasonableness of the manufacturer's conduct in making its design choice, not to the issue of whether the product was defectively designed.

Anyone wishing to review a copy of the Majority Opinion in this decision may click this LINK.

The Concurring Opinion by Justice Donohue can be viewed HERE.

The Dissenting Opinion by Chief Justice Todd can be viewed HERE.

I send thanks to Attorney Kenneth T. Newman of the Pittsburgh office of Thomas Thomas & Hafer for bringing this case to my attention.

Source of image:  Photo by Darya Sannikova on

Once Appeal is Filed Trial Court Loses Jurisdiction Over the Case

In its non-precedential decision in the case of Grady v. Nelson, No. 2115 EDA 2021 (Pa. Super. Nov. 20, 2023 Stabile, J., Dubow, J., Pellegrini, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court reaffirmed the rule of appellate procedure that, once a case goes up on appeal, the trial court loses jurisdiction to take further action until the case is remanded.

The Superior Court more specifically noted that the effort by the defense counsel to place a case on a trial list before the pleadings were even closed and any opportunity was allowed to conduct pre-trial proceedings as allowed under the Rules of Civil Procedure was improper. The court noted that it was improper for counsel for seek a trial listing while the appeal was pending given that the lower court did not have any jurisdiction to proceed further in the matter, subject to certain exceptions which were not applicable in this case.

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

Source: Article – “Court Scolds Counsel for Pursuing Case in Both Common Pleas, Appellate Systems” By Riley Brennan of the Pennsylvania Law Weekly (Nov. 28, 2023).

Tuesday, January 2, 2024



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