Friday, May 31, 2024

Pro Se Prisoner's Civil Rights Claims Related to COVID-19 Vaccine Dismissed

In the case of Jones v. Employees of the DOC of Pa at SCI-Phoenix, No. 2:22-CV-02386-CMR (E.D. Pa. March 22, 2024 Rufe, J.), the Eastern District Federal Court dismissed a prisoner pro se Plaintiff’s §1983 Civil Rights litigation based on allegations related to medical treatment that the Plaintiff received while in prison.

The Plaintiff asserted that he suffered from adverse side effects after he was injected with a COVID-19 vaccine and the needle was allegedly injected too deep and struck a nerve, allegedly resulting in nerve damage. The Plaintiff alleged Eighth Amendment violations.

The Defendants moved to dismiss, which motion was granted.

According to the Opinion, the Plaintiff filed an administrative grievance within the prison prior to pursuing this litigation. In that grievance, he asserted deliberate indifference to the Plaintiff’s medical needs and violation of the Eighth Amendment. The grievance was denied. Thereafter, the Plaintiff filed suit.

The court granted the Defendants’ Motion to Dismiss after finding that the Plaintiff was provided treatment for his alleged symptoms. The court additionally noted that the record did not reveal any indication that the Defendants had intentionally inflicted pain or insisted on treatment that the Defendants allegedly knew would be painful, in effective, or risky.

The court additionally confirmed the well-settled law that disagreements over medical treatment provided to prisoners in prison could not rise to the level of a constitutional violation under the Eighth Amendment.

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” (April 18, 2024).

Source of image:  Photo by Hakan Nural on

Tuesday, May 28, 2024

Western Federal District Court Addresses Viability of Recklessness and Punitive Damages Claims in a Products Case

In the case of C.M. v. American Honda Motor Co., No. 3:23-CV-00119 (W.D. Pa. April 1, 2024 Gibson, J.), the court denied a Defendant’s Motion to Dismiss in a products liability case arising out of a motor vehicle accident.

In so ruling, the court held that allegations of recklessness go to the degree of negligence and do not state claims separate from claims of ordinary negligence under Pennsylvania law.  As such, the court found that these types of recklessness claims are not separate claims that can be separately dismissed under Federal Rule of Civil Procedure 12 where the Plaintiff has pled a valid negligence claim.

The court also separately held that, because the issue of whether punitive damages are appropriate involves factual determinations that are best made with the benefit of completed discovery, the request for a dismissal of punitive damages claims on a Rule 12 Motion to Dismiss is premature.

In any event, the court also found that the Complaint at issue contained sufficient allegations of fact to support the claims of recklessness.

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

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

Friday, May 24, 2024

Summary Judgment Denied in Slip and Fall Case

In the case of Sanner v. Airbnb, Inc., No. 3:22-CV-00274 (M.D. Pa. March 29, 2024 Mehalchick, J.), the court denied a Motion for Summary Judgment in a wintry slip and fall case.

The court found that the hills and ridges doctrine does not apply to a localized patch of ice or to circumstances when the icy condition is allegedly created by human intervention.

In this case, the court found that whether the conditions at issue were due solely to a natural snow accumulation was a disputed fact.

Judge Karoline Mehalchick
M.D. Pa.

The court also found that allegations regarding Plaintiff’s assumption of the risk were also disputed. As such, summary judgment was denied and the case was allowed to proceed.

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

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

Thursday, May 23, 2024

Judge Mannion of Federal Middle District Court Addresses Continuing Validity of the Regular Use Exclusion and Makes Predictions

In the case of Dayton v. The Automobile Insurance Co. of Hartford, CT, No. 3:20-CV-01833-MEM (M.D. Pa. April 23, 2024 Mannion, J.), the court addressed the issue of whether “regular use” exclusion provision in a motor vehicle insurance policy is unenforceable as contrary to Pennsylvania law under a 75 Pa. C.S.A. §1738 analysis.

Judge Mannion predicted that the Pennsylvania Supreme Court would find that the regular use exclusion does not violate §1738 of Pennsylvania’s Motor Vehicle Financial Responsibility Law.

According to the Opinion, this lawsuit arose out of a motor vehicle accident during which the Plaintiff was injured while driving his employer’s truck. 

The Plaintiff sued after he was not allowed to stack his personal automobile coverage limits on top of the separate insurance policy issued by a different insurance company that his employer had for the truck that the Plaintiff had been driving at the time of the accident.

The carrier in this case had denied the Plaintiff’s claim for additional UIM benefits based upon a regular use exclusion which precluded any coverage when injuries were sustained by an insured while occupying a non-insured vehicle that was available for the insured’s regular use.

The court rejected the Plaintiff’s arguments under the Gallagher v. Geico line of cases under which the Plaintiff attempted to argue that the regular use exclusion, like the household exclusion, operates as a impermissible de facto waiver of stacking under certain circumstances.

In addition to noting that the scope of the Gallagher decision had been limited by recent decisions by Pennsylvania Supreme Court, including in the case of Erie Insurance Exchange v. Mione, Judge Mannion also noted that, earlier this year, the Pennsylvania Supreme Court had upheld the regular use exclusion as enforceable in the case of Rush v. Erie Insurance Exchange under a 75 Pa. C.S.A. §1731 analysis.

Judge Malachy E. Mannion
M.D. Pa.

The court noted that the separate §1738 analysis was not addressed in the Rush case. In this regard, Judge Mannion found that the Erie Insurance Exchange v. Mione by the Pennsylvania Supreme Court was instructive and “dictates the prediction that the Pennsylvania Supreme Court would conclude that a regular use exclusion which does not deprive an insured of stacked UIM coverage does not violate §1738.” 

In this case, the court found that the Plaintiff did not have any insurance policy under which §1738 would require stacking of the UIM coverage provided in his personal policy with the insurance company at issue in this case and that, therefore, that policy’s regular use exclusion does not deprive the Plaintiff of stacked coverage and, therefore, did not violate §1738.

Accordingly, the Plaintiff’s arguments that the regular use exclusion violated the MVFRL were rejected by the Court, the regular use exclusion was enforced, and the Defendant carrier was granted summary judgment in this case.

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

Source: Article – “Federal Court Predicts How Pa. Supreme Court will Address Unanswered Question About Regular Use Exclusion.” By Riley Brennan, the Legal Intelligencer (April 26, 2024).

Tuesday, May 21, 2024

Pennsylvania Supreme Court's Latest Pronouncement on Service of Process Issues (And Another Great Dissenting Opinion by Justice Wecht)

In the case of Ferraro v. Patterson-Erie, No. 1 WAP 2023 (Pa. April 25, 2024) (Op. by Donohue, J.), the court addressed a statute of limitations argument related to service of process issues in a slip and fall case.

According to the Opinion, the Plaintiff slipped and fell at a Burger King and, thereafter, filed a negligence lawsuit against the operators of the restaurant.

The Plaintiff filed her Complaint within the two (2) year statute of limitations.

However, the Plaintiff encountered difficulties with serving the Complaint on the Defendants due to issues with the Sheriff’s service and the COVID-19 pandemic.

The Plaintiff eventually served the Complaint through a private process server. She later reinstated the Complaint and then served it through the Sheriff.  However, this service by the Sheriff occurred after the statute of limitations had elapsed.

The Defendants argued that the action was barred by the statute of limitations because the Plaintiff did not make a good faith effort to serve them in a timely manner.

The trial court had denied the Defendants’ Motion for Judgment on the Pleadings in this regard. The Superior Court affirmed the trial court’s decision.

On appeal to the Pennsylvania Supreme Court, the decision of the Superior Court was reversed.

The Pennsylvania Supreme Court held that the Plaintiff failed to meet her burden of demonstrating that she made a good faith effort in diligently and timely serving process on the Defendants.

Accordingly, the Supreme Court found that the Defendants’ informal receipt of actual notice was irrelevant.

The court emphasized that the Plaintiffs are not permitted to opt out of the Rules of Civil Procedure regarding service in order to give notice of the commencement of a lawsuit by way of informal means. The court noted that, if attempts at service of process were viewed as optional for given such notice of the filing of a lawsuit, then no Plaintiff would be required to rely upon the Pennsylvania Rules of Civil Procedure to complete service of process in a proper manner.

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

The Dissenting Opinion by Justice Wecht, in which Justice Mundy joined, can be viewed HERE.  Justice Wecht's Dissenting Opinion provides and excellent and thorough overview of the jurisprudence in Pennsylvania on the service of process law.  Justice Wecht also proposes ways to provide clarity on this area of law going forward.

Source: Daily Opinions Summaries (April 26, 2024).

Pennsylvania Supreme Court Holds that Party Can Secure BOTH Treble Damages AND Punitive Damages in UTPCPL Claim

In the case of Dwyer v. Ameriprise Financial, No. 2 WAP 2023 (Pa. April 25, 2024) (Op. by Wecht, J.)(Brobson, J., Concurring and Dissenting), the Pennsylvania Supreme Court held that a court may, under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), award both punitive damages and treble damages.

This case involved Plaintiffs who sued Ameriprise Financial for negligent and fraudulent misrepresentation relative to a life insurance policy. The Plaintiffs alleged that the carrier misrepresented to them that their quarterly premium payments would remain the same for the life of the policy. In reality, if the Plaintiff’s premium payment had remained the same, the policy allegedly would have lapsed for insufficient funds in 2020.

The trial court found Ameriprise guilty of violating Pennsylvania Unfair Trade Practices and Consumer Protection Law and award compensatory damages. The trial court declined to award treble damages under the UTPCPL under a rationale that such damages would be duplicative of the punitive damages that were awarded by the jury on the common law claims.

The Pennsylvania Superior Court had affirmed this decision.

Going up to the appellate ladder to the Pennsylvania Supreme Court, that Court reversed and held that treble damages under the UTPCPL are a separate remedy available to the Plaintiffs and must be considered by the trial court without regard to a punitive damages award on related common law claims.

The Pennsylvania Supreme Court noted that nullifying the availability of a statutory award because of a common law award is not a permissible exercise of discretion by the trial court.

Accordingly, the Pennsylvania Supreme Court reversed the order of the Superior Court and remanded the case back down to the trial court for reconsideration of the appropriate amount of damages under the UTPCPL.

Anyone wishing to review a copy of the Majority decision written by Justice Wecht may click this LINK.  

Justice Brobson Concurring and Dissenting Opinion can be viewed HERE

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

Source of image::  Photo by Giorgio Trovato on

Monday, May 20, 2024

Plaintiff Cannot Compel a Doctor to Provide a Certificate of Merit if the Doctor Does Not Wish To

In the case of Berk v. Rothman Institute Orthopedic Foundation, No. 23-1437 (E.D. Pa. March 28, 2024 Murphy, J.),  a Plaintiff sued his own doctors who declined to give him a Certificate of Merit to allow the Plaintiff to pursue a medical malpractice claim against other doctors.  The Plaintiff sued the doctors in an effort to compel them to provide him with the Certificate of Merit.

The court granted the doctors' Motion to Dismiss after finding that treating physicians do not owe their patients any fiduciary duty to provide them with a Certificate of Merit that would allow the patient to sue other doctors for medical malpractice.

The rationale for this decision was, in part, the general rule that potential experts may not be compelled to issue expert opinions against their will.

The court otherwise found that there is no valid cause of action for an alleged intentional deprivation of legal recourse for an alleged injury.

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

I thank 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 Sasun Bughdaryn on

Thursday, May 16, 2024

Issues Surrounding a Zero Verdict That Was Never Read Out Loud in Open Court

In the case of Shook v. Lehigh Valley Restaurant Group, Inc., No. 1861 EDA 2023 (Pa. Super. April 4, 2024 Dubow, J., King, J., and Lane, J.) (Op. by Dubow, J.), the court reversed a trial court Order ordering a new trial on damages.

In this case, the Superior Court noted that the jury verdict in the trial below was never actually read out loud in open court before the trial court rejected the zero verdict returned by the jury.  According to the record from the trial court proceedings, the original zero verdict was never announced in court, the jury was not polled and the verdict was not properly recorded. 

As such, the Superior Court found that there was nothing for the trial court to reinstate. Accordingly, the Superior Court noted that a jury verdict that was never read out in open court is not a verdict that could be reinstated by the court.

In the end, the trial court’s ordering of a new trial was reversed and the trial court was instructed to review the issues presented on remand only if the Plaintiff actually preserved the same.

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

I thank Attorney James MBeck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Monday, May 13, 2024

Summary Judgment Motion Denied in Medical Malpractice Case Regarding Alleged Superseding Cause

In the case of Nigon v. Jewel, No. 671 WDA 2023 (Pa. Super. April 9, 2024 Murray, J., Bowes, J., and Kunselman, J.) (Op. by Murray, J.), the court reversed a summary judgment entered by the trial court in a medical malpractice case.

In this case, the court found that the fact that one Defendant doctor was indisputably aware of the decedent’s need for anticoagulation medication, and discussed that with the decedent, is not a superseding cause precluding the liability of a second doctor for an alleged negligent failure to discuss the same issue.

The Superior Court emphasized that the Plaintiff’s experts blamed both doctors for the ultimate failure to provide the alleged required treatment such that causation remained a jury question.

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

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

Friday, May 10, 2024

ARTICLE: Volunteering for Mock Trial Competitions Leads to Real Improvement in Trial Skills

Volunteering for Mock Trial Competitions Leads to Real Improvement in Trial Skills

By Daniel E. Cummins | May 02, 2024 
Pennsylvania Law Weekly

During high school mock trial season, common feedback provided by a number of judges is that the student attorneys and witnesses present their cases better than many real attorneys and witnesses that appear before the court. This often provokes laughter from the laypeople in the audience but nods of understanding and some wincing from the attorneys in the room.

Attorneys are urged to volunteer for high school mock trial competitions as advisers or jurors. Not only is this a great volunteer activity that puts the members of the Pennsylvania Bar in a positive light, but participating attorneys will likely end up improving their own trial presentation skills as a result—a win-win scenario.

As another high school mock trial season comes to a close, here are some reflections on lessons that mock trial students learn that can also be applied by real attorneys to real life trials in order to improve their presentation skills in the courtroom.

Preparation Is Key

The key to any successful presentation of a trial is the completion of extensive preparation and training leading up to trial. As discovery is gathered during the course of a litigation, it should be categorized and reviewed and summarized in order to get a deep understanding of the claims and defenses presented by the parties.

Also, knowing the elements of the causes of action and defenses presented is crucial and serves as an outline of the evidence that must be presented at trial in order for a party to prevail by meeting each and every required element.

Practice, and Then Practice Again

When preparing for a trial, it is important to do run-throughs of direct examinations, potential cross-examinations as well as the opening statement and the closing argument. Running through directs and crosses will bring to light changes that must be made and additions or subtractions that would make the presentation more concise and, therefore, more clear to the jury.

Such repeated practice will also bring to light potential objections that one may face with regards to the evidence to be presented. That way you can study the law behind the objections and the objection responses and be fully prepared to address the same in court, much to the chagrin of your opponent.

Practicing examinations, as well as opening statements and closing arguments, also allows the attorney to make a more effective and compelling presentation to the jury. Doing a run-through of different parts of the case with a layperson will assist in determining which parts of your presentation have to be fine-tuned and simplified for clarity purposes. Such repeated practices also serve to increase the confidence of the attorney in his or her ability to cohesively and simply present the information to a jury at trial.


Themes matter. Themes simplify cases for juries and appeal to a jury’s sense of what is right, fair, and just. Repeating a theme throughout one’s case, clues a jury into the case presented and keeps their interest as the case proceeds.

Accordingly, it is important to have a theme for the opening statement and to carry that theme through the entire case to the closing argument. That means weaving the words of your theme periodically through your direct examination as well as your cross-examination. The theme should not be “forced” into the direct examination or cross-examination questions or your witnesses’ testimonies. Rather, the theme should stem from the most important parts of your case and testimony where it can be naturally inserted into the case.

For example, one theme in a motor vehicle accident case could be: “This case involves a fender bender as a result of which neither fender was bent and no one was hurt.” Repeatedly stating that theme in both the opening and the closing, as well as confirming during the questioning of numerous witnesses that neither fender was bent during the course of the accident will repeatedly drive home the theme to the jury and appeal to their common sense.

Witnesses Preparation Wins Cases

Mock trials are won not only by good attorney performances, but also, and perhaps more so, by excellent performances by witnesses.

A case can turn on the quality of the witnesses presented by one side as compared to the other. Accordingly, witness preparation is vital for success at trial. Completing numerous run-throughs of direct and cross-examinations with witnesses will not only prepare the attorney but also fully prepare the witness to become more comfortable with the information to be provided to the jury. Such practicing will also help the attorney and the witness simplify the information being provided and make the witness more comfortable with the process.

In the end, the attorney and the witness will develop a rhythm that will result in a tight and interesting story for the jury on direct examination. Practicing the anticipated cross will also assist in preparing the witness for possible questions which can help the witness appear more at ease and less defensive.

The Rules of Evidence Matter

While in everyday practice, attorneys give a token appreciation for the application of the Rules of Evidence in any given case, once an attorney walks into the courtroom, the Rules of Evidence matter.

Judges are trained to provide the parties that come before them with a fair trial. The primary way the judges allow for a fair trial is to apply the Rules of Evidence in accordance with the law.

As such, one of the keys to a successful trial is to view the case from the perspective of the opposing party and anticipate objections to the testimony and demonstrative evidence that can be expected to arise. In that way, one can apply these anticipated objections to the Rules of Evidence and prepare to argue the objections before one even enters the courtroom.

Organization Builds Credibility

Having a clean counsel table and organized exhibits matters. The organized attorney is the credible attorney. Organization sends off a signal that the attorney has prepared the case thoroughly and that the attorney respects the jury’s time as compared to opposing counsel who shuffles through many documents looking for a particular exhibit.

Both judges and jurors also appreciate an attorney who knows how to properly introduce a document into evidence. The proper way to introduce a document is to first note an intention to the court of a plan to introduce a document. Next, opposing counsel should be shown the proposed exhibit. Then, a request for permission to approach the witness with the exhibit should be requested.

After approaching the witness and handing the witness the exhibit, the witness should be asked to identify the document. The witness should then be asked if the document is a fair and accurate representation of the proposed evidence.

At that point, the attorney offering up the exhibit should request the court to admit the exhibit. The attorney offering the exhibit into evidence should be prepared to address any objections from the opposing party.

If and when the exhibit is entered, the attorney offering the exhibit should then request the permission of the court to publish the exhibit to the jury. That attorney should have an assistant prepared to either hand out copies of the admitted exhibits to the jury or have a technology assistant pull up the exhibit on the big screen for the jury to review as the questioning of the witness continues.

Visuals Break Up Monotony

In order to break up the monotony of a trial, the use of demonstrative exhibits and documents are highly recommended. In the absence of exhibits, the audience, i.e., the jury, who are typically experiencing an overload of visual information at any given time of any given day, may quickly lose interest. Wherever possible, a jury should be provided with exhibits and visual pieces of evidence to break up the monotony of testimony at a trial so as to keep them interested in your case.

Brevity and Simplicity Win Cases

Brevity and simplicity at trial are possible and can be compelling.

In a high school mock trial competition, a party has only five minutes to present their opening statement and only five minutes to present their closing argument. It is continually amazing how informative and compelling a five-minute opening statement or closing argument can be in any given case.

As attorneys are typically fearful of not presenting every piece of evidence to a jury for fear of leaving something important out, it sometimes feels impossible to do an opening statement or a closing argument in less than 30-40 minutes. However, if repetitive comments are cut out and the opening statement and closing argument are crystalized into a tight, concise, and compelling presentation, less is usually more when it comes to persuading a jury to rule in your favor.

In the opening statement, the jury should be provided with the “story” of the case so as to orient them as to what evidence will be coming. A short and concise description of the anticipated witnesses and their testimony should be provided. Some brief explanation of the burden of proof should be noted. Importantly, all of this information should be framed and driven home by the theme of the case at the beginning and/or the ending of the statement.

In the closing argument, counsel should let it rip by way of a more forceful recitation of the evidence that has been to the jury and how this relates to the applicable law. After the theme is emphasized at the outset of the closing argument, a review of the favorable evidence should be provided in a concise fashion. Near the end of a closing argument, the arguments of the opposing party should be anticipated and flipped on their head as being not worthy of acceptance by the jury. The closing argument should then end with a specific statement as to the relief desired from the jury on behalf of your client.

Courtroom Decorum and Civility Is a Must

Mock trial teaches that courtroom decorum is important and the tradition of respecting the court and the jury should be honored. Civility between opposing counsel is also required.

This means always standing when addressing the court and referring to the judge as “Your Honor.” This means requesting the permission of the court to move about and approach witnesses. This means never arguing directly with opposing counsel and always directing one’s comments to the bench. This also means treating even opposing witnesses with respect. Civility also means approaching opposing counsel following a trial, win or lose, with a show of respect.

Worthy of CLE/CJE Credits

Surely, as confirmed above, participating in a high school or college mock trial competition as an adviser, a judge or a juror is a highly educational experience. The educational value of participation by attorneys and judges in mock trial competitions is, therefore, unquestionably worthy of the granting of CJE/CLE credits. Certainly, attorneys learn more by participating in mock trial competitions than earning credits while passively sitting in front of a video of a prior CLE presentation while reading the newspaper or doing work.

A hope remains that the Pennsylvania Supreme Court will someday allow for an amendment of the rules pertaining to CLE/CJE credits such that credits will be permitted for mock trial participation similar to how such credits are allowed in many other states. In that way, more judges and lawyers will be enticed to volunteer their time and expertise to mock trial competitions for the benefit of high school and college students across the commonwealth of Pennsylvania. Even better, lawyers will be reminded of and educated on trial presentation skills for the benefit of their clients and the overall practice of law.

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  Cummins is also one of the Attorney Advisors for the 2024 National Champion Abington Heights High School (Clarks Summit, PA) Mock Trial Team.

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

Thursday, May 9, 2024

Plaintiff Provided Additional Opportunities To Complete Service

In the case of Chanthanasinh v. LZ Holding Pennsylvania, LLC, No. 1500-CV-2022 (C. P. Monroe Co. April 5, 2024 Zulick, J.), the court denied a Preliminary Objection by a Defendant regarding service of process issues. The court otherwise ordered the Plaintiff to obtain service of the Complaint on the Defendants if that had not yet been accomplished. The court additioanly noted that, if the Plaintiff is unable to complete service within sixty (60) days, the Plaintiff was ordered to file a Motion for Special Service.

This matter arose out of a slip and fall incident.

According to the Opinion, the Plaintiff had attempted service on the owner of the hotel premises through the Sheriff on multiple occasions. However, it was later established during a hearing on the issues presented that the named Defendant in this case was not the owner at the time some individual had accepted service of the process earlier in the case.

In an effort to show diligent efforts to advise the Defendant of the incident in the lawsuit, the Plaintiff offered evidence that he and his family had communicated with representatives of the hotel on multiple occasions regarding the incident and medical bills. It was also noted that Plaintiff’s counsel had sent correspondence, by certified mail, to the hotel manager regarding the incident and the injuries alleged. At the hearing, it was acknowledged that the representatives of the hotel had received counsel’s letter.

It was additionally indicated that Plaintiff’s counsel had corresponded with an insurance company that was allegedly the Defendant’s workers’ compensation carrier, including providing that company with the copy of the Complaint.

The Plaintiff’s counsel also pointed to the multiple efforts to have the Sheriff’s office complete service.

In this case, the court noted that the Defendant has admittedly known for a extended period of time that the Plaintiff had filed suit against them. The court also found that the Plaintiff acted diligently and made good faith efforts to have service completed by the Sheriff’s Department. The court additionally noted that the Plaintiff had properly relied upon a Sheriff’s Affidavit that good service had been obtained.

As such, the court denied the Preliminary Objection based upon lack of proper service and directed the Plaintiff to take additional steps to fully complete service of process.

In another notable part of his Opinion, Judge Zulick addressed the Defendants' argument that the Plaintiff should be made to separate out the claims against the 10 Defendants into separate Counts, one for each Defendant so that the Defendants could respond fully to the claims presented.

Judge Zulick went against the trend of decisions in this regard that typically grant such a request for separate Counts for each Defendant by ruling that, here, that rule did not apply since because the Plaintiff had sued the Defendants jointly, alleging liability jointly, such that separate pleadings or Counts against each Defendant were not necessary.  

The Court noted that, where there is only one cause of action asserted, separate Counts were not necessary.  Here, the Plaintiff alleged negligence as a result of a fall down event and asserted that all of the Defendants were owners of the premises where the accident occurred. 

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

Tuesday, May 7, 2024

Claims of Direct Liability To Plaintiff Asserted in a Joinder Complaint Found to be Barred by the Statute of Limitations

In the case of Brown-Papp v. Phillips, No. 2017-CV-0210 (C.P. Bradford Co. Mach 28, 2024 Beirne, P.J.), the court, following a jury trial, granted an Additional Defendant’s Motion to Vacate/Dismiss the Joinder Complaint filed against the Additional Defendant in a motor vehicle accident case based upon a finding that any effort by the joining party to assert direct claims against the Additional Defendant relative to the Plaintiff's personal injury claims were barred by the applicable statute of limitations.

According to the Opinion, this case arose out a motor vehicle accident. The Plaintiff sued a defendant driver and a UIM carrier. The UIM carrier brought in a second driver allegedly involved in accident as an Additional Defendant in order to assert the credit for the liability insurance limits of that Additional Defendant.

The case proceeded through trial and, during the trial, the Additional Defendant preserved the statute of limitations arguments by way of a pre-trial motion, a Motion for a Nonsuit, and a Motion for a Directed Verdict. The trial court took all of those motions under advisement for a later decision and did not decide them during the course of the trial. 

The jury then entered a verdict finding each Defendant driver to be 50% responsible for the happening of the accident.

In a post-trial motion, the Additional Defendant reiterated the Motion to Vacate/Dismiss any effort by the Plaintiff to recover against the Additional Defendant under a statue of limitations argument. The Additional Defendant asserted that the Plaintiff never filed any direct claim against the Additional Defendant. Moreover, it was established that the UIM carrier had not brought the Additional Defendant into the case until after the statute of limitations had expired. 

In this decision, the court granted the Additional Defendant’s Motion to Vacate/Dismiss on the basis of the application of the statute of limitations.

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

Sunday, May 5, 2024



The Abington Heights High School Mock Trial Team from Clarks Summit, Lackawanna County, Pennsylvania won the National Championship during a Tournament this past weekend in Wilmington, Delaware on May 4, 2024.  There were 48 teams from 46 states.  There were also teams from South Korea and Taipan.

By doing so the Abington Heights High School Mock Trial Team became the first Pennsylvania Team to win the National Title over the approximately 40 years that the national competition has been held.

Across the entire United States of America there were approximately 2,300 high school mock trial teams. 

The Team from Abington Heights has won the Pennsylvania State Championship 3 times out of the last 4 years.  In their past trips to the Nationals, they placed 24th and then 15th.  

This year they handedly won the National Championship.

During the Abington Heights High School Mock Trial Team's Championship drive, they won every ballot (i.e., juror's scorecard) but one during the Pennsylvania State Tournament.  Then, during the National Tournament, they won every ballot during the four trials that got them to the Final Championship Mock Trial victory against Texas at the Nationals.  

The members, teachers and advisors of the 2024 National Champion Abington Heights High School Mock Trial Team from Clarks Summit, Lackawanna, Pennsylvania are:

Madeline Herold

Dane Huggler

Thomas Russini

Will Newton

Serena Mokhtari

Aidan Lam

Zachary Riggall

Joseph T. (JT) Healey

Ava Whalen

Christopher Cummins

Ava Shedlauskas

Nolan Moore

Henry Mahoney

Amishi Amit

Ananya Phadki

The Teacher Coaches for the 2024 National Championship High School Mock Trial Team were Jen Tarr and Amy Kelly.  The Attorney Advisors were Daniel E. Cummins of Cummins Law and Joseph T. (Jody) Healey of Burns White.  The Team's Performance Advisor was Anne Cummins.

The Abington Heights High School Mock Trial Teams shares this National Championship with, and thanks very much, everyone in Pennsylvania who supported them including all of the members involved in Mock Trial in the Pennsylvania Bar Association and in the Lackawanna Bar Association and the Monroe County Bar Association, as well as Lee Ann Munley - Executive Director of the Lackawanna Bar Association and her staff, Mackenzie Wilson, Esq. of Munley Law for her tireless work as the District Coordinator,  Jennifer Menichini, Esq. for her great work for Mock Trial across the Commonwealth.  

The Team also thanks all of the attorneys and Judges who volunteered their time along the way to make the competition a success at the local, state, and national level.

The Team also thanks Paul Kaufman, Esq., Jonathan Grode, Esq., Jonathan Koltash, Esq., and the Pennsylvania Mock Trial Executive Committee for writing and crafting the case materials year in and year out for the Mock Trial Competition.

Friday, May 3, 2024


Happy Birthday Tort Talk!

Tort Talk was started 15 years ago on May 4, 2009.

With nearly 2,000 email subscribers, over 4,000 blog posts, and over 4.2 million views to date, Tort Talk is still going strong.

Thank you for your tips on notable cases and for your readership.

Source of top image:  Photo by Angele Kamp on

Thursday, May 2, 2024

Scope of Statutory Employer Doctrine Reviewed

In the case of Hernandez v. Independence Constructors Corp., No. 1911 EDA 2023 (C.P. Phila. Co. Dec. 19, 2023 Foglietta, J.), the trial court issued a Rule 1925 Opinion in case involving a work-related injury sustained by the Plaintiff in a case where he sued certain entities.

The trial court stated in its Rule 1925 Opinion that its judgment should be affirmed where the Defendant, which subcontracted the Plaintiff’s employer for construction work was not a statutory employer entitled to employer immunity under the Pennsylvania Workers’ Compensation Act.

In this regard, the court stated that it had concluded that the Defendant employer did not meet the second prong of the test set out in the case of McDonald v. Levinson Steel Co., 153 A. 424 (Pa. 1930). More specifically, the Defendant employer did not control the job site where the Plaintiff was injured.

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

Source: “The Legal Intelligencer Common Pleas Case Alert,” (March 27, 2024).