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”, (March 20, 2024).

Source of image: Photo by Tima Miroshnichenko on

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


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,” (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

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

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 (, which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law.  He can be reached at

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

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.

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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

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.