Friday, June 21, 2024

Plaintiff's Claim of Two Impacts Helps To Defeat Summary Judgment Motion in Chain Reaction Accident Case


In the case of Akbar v. Glover, No. 10572-CV-2023 (C.P. Erie Co. May 22, 2024 Ridge, J.), the court denied a Motion for Summary Judgment filed by a Defendant driver that was the last car at the end of a chain reaction accident.

According to the Opinion, the Plaintiff was rear-ended by Defendant in the car behind the Plaintiff. 

The second Defendant then came along and rear-ended the first Defendant. 

The Plaintiff alleged a chain reaction and asserted that the first Defendant was caused to hit the rear of the Plaintiff’s vehicle a second time after that first Defendant was rear-ended by the second Defendant. Both Defendants were named in the lawsuit.

The second Defendant filed a Motion for Summary Judgment asserting that the Plaintiff did not show a prima facie case of that Defendant’s negligence. 

The second Defendant asserted that the Plaintiff admitted that he did not see the second Defendant's vehicle before the impact and that, therefore, the Plaintiff could not establish that there was a second collision with her vehicle caused by the second Defendant. That Defendant asserted that the fact that the Plaintiff allegedly “experienced” an alleged second impact was not enough.

The court denied the second Defendant's Motion for Summary Judgment. 

In doing so, the court pointed to the Plaintiff’s statement that she felt two (2) impacts. 

Moreover, the court noted that the first Defendant testified that there was no definitely no second impact caused solely by that first Defendant.

The record before the Court also showed that the second Defendant admitted that they did not know whether the collision with the first Defendant had caused the second impact with the Plaintiff's vehicle.

Finding that there were issues of fact to be decided by a jury, the judge denied the Motion for Summary Judgment.

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

I send thanks to Attorney Brandon R. Keller of the Pittsburgh law firm of Ainsman Levine, LLC for bringing this case to my attention.


Source of image:  Photo by Burak the Weekender on www.pexels.com.

Thursday, June 20, 2024

Federal Court UIM Bad Faith Claim Dismissed Where Plaintiff Did Not Plead Sufficient Facts


In the case of Hampton v. Progressive Insurance Company, 2:24-CV-01011-MAK (E.D. Pa. May 21, 2024 Kearney, J.), the court granted a Motion to Dismiss a Plaintiff’s bad faith claims and claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Law in a UIM case.

According to the Opinion, the Plaintiff secured the $15,000.00 liability limits from the third party tortfeasor and then pursued this UIM claim.

After the UIM carrier offered $1,000.00 in settlement, the Plaintiff filed a breach of contract action that included claims for statutory bad faith and unfair trade practices claims.

The court ruled that the Plaintiff’s bad faith claim failed where the Plaintiff failed to plead sufficient facts alleging any unreasonable conduct by the carrier or any facts that would support an inference of unreasonableness with respect to the carrier’s settlement offer.

The court otherwise stated that the Plaintiff failed to identify specific actual omissions by the Defendant carrier that were unreasonable or indicative of bad faith. Rather, the Plaintiff only made conclusory allegations that the Defendant’s settlement offer below is UIM policy limits demonstrated bad faith. The court stated that the Plaintiff did not pled any specific facts with regards to how the Defendant carrier evaluated the UIM claim or any facts that would support an inference that the $1,000.00 settlement offer was unreasonable.

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


Source: Law.com, “The Legal Intelligencer Federal Case Alert” (June 13, 2024).


Source of image:   Photo by Mikhail Nilov on www.pexels.com.

Federal Court Rules that Plaintiff Must Plausibly Identify the Seller of the Product in the Complaint


In the case of McKnight v. Amazon.Com Inc., No. 23-1449 (E.D. Pa. May 14, 2024 Pratter, J.), the court granted in part and denied in part a Motion to Dismiss.

The case arose out of a claim that the Plaintiff allegedly suffered injuries from using a mole cream on his scalp.

The late Judge Pratter noted that, in reading the Plaintiff's Complaint, the Plaintiff purchased the mole removal cream from Amazon.com or, if not Amazon, then Wal-Mart, or Target, or eBay.  

In this products liability case, the court found that the Plaintiff could not validly allege that he bought the same item from four (4) different manufacturers.

The court found that the claims against the lead Defendant were barely plausible since the Complaint alleged that that various Defendants delivered the product.

As to the other three (3) alleged sellers, the court found that no proper facts were pled. The court stated that an allegation of “more likely than not” is not an allegation of a fact.

The federal district court reaffirmed the rule of products liability cases that a Plaintiff must identify the maker of the allegedly defective product in the pleadings.  Any alternative pleadings must still meet the general plausibility standards.

This decision is also notable for the fact that the court ruled that Pennsylvania law does not recognize a duty to recall or retrofit products. As such, the recall-related allegations in the Complaint were stricken.

In this decision, the federal court also noted that there is no separate cause of action for recklessness under Pennsylvania law.  The Complaint included a claim of "Negligence and Recklessness."  The Court noted that there is no cause of action for Recklessness in and of itself under Pennsylvania law.

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

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

Federal Court Strikes Affirmative Defenses Having No Basis in Fact



In the case of DeSandies v. Encore Group (YSA), LLC, No. 2:24-CV-01044-JDW (E.D. Pa. April 19, 2024 Wolson, J.), the court addressed affirmative defenses filed by a Defendant in a federal court matter and determined that a Rule 11 sanction was appropriate given that certain defenses asserted by a defense counsel were not supported by the facts of the case.

According to the Opinion, the Defendant filed an Answer that included an affirmative defense relative to an allegation regarding the statute of limitations which the court deemed to be invalid on its face on the basis of the pleadings of the parties. 

After the Defendant chose not to amend but instead defend its Answer and Affirmative Defenses, the court rejected the defense position and imposed a Rule 11 sanction, striking all of the Defendant’s affirmative defenses from its Answer but otherwise allowing the defense the ability to seek leave of court to amend its affirmative defenses for which the defense had a good faith basis.

This case arose out of allegations under the American for Disability Act. The Defendant’s Answer included ten (10) affirmative defenses, one of which was a statute of limitations defense.

The court reviewed the pleadings and concluded that the assertion of a statute of limitations defense was merely a prophylactic allegation rather than being validly based upon some claim by Plaintiff that was barred by the statute of limitations.

The court ordered the Defendant to either file an Amended Answer in which it would only assert those defenses for which it had a good faith basis or to otherwise file a Memorandum explaining why its Answer should be not stricken as in violation of F.R.C.P. 11(b).  As noted, the Defendant elected to defend its Answer rather than amend.

Thereafter, the court concluded that the Defendant’s affirmative defense on the statute of limitations was patently unmeritorious or frivolous and thereby warranted the imposition of sanctions.

The Defendant claimed that discovery could later support the defense of the statute of limitations that the Defendant therefore desired to preserve its defense in its pleadings.

The court rejected that reasoning, observing that Rule 11 does not countenance the assertion of affirmative defense based on what another party might assert in the future, either as to claims or testimony.

The court stated that, if the Defendant concluded that the Plaintiff eventually took some action that changed the scope of the claim presented, then the Defendant’s remedy would be to seek leave of court to amend its Answer to assert a new affirmative defense at that later date. The court otherwise reaffirmed its decision that it was not option to assert a affirmative defenses initially in a prophylactic fashion with no factual basis for doing so.

In the end, the court determined that the improper assertion of the affirmative defenses warranted the imposition of sanctions because such practice unnecessarily expand discovery and made it more difficult to resolve cases. Judge Wolson also noted that, just as a Plaintiff was not entitled to assert claims that lacked any basis, a Defendant may not assert affirmative defenses that lacked any basis.

The court deemed that the appropriate sanction would be to strike all of the Defendant’s asserted affirmative defenses, without prejudice to the Defendant’s ability to seek leave court to amend its Answer to include affirmative defenses for which the defense had a good faith basis.

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


Source: Law.com: “The Legal Intelligencer Federal Case Alert” (May 16, 2024).

Tuesday, June 18, 2024

Pennsylvania Supreme Court Addresses The Client Exception to Pa.R.C.P. 4003.6 Regarding Discovery Sought From a Treating Physician



In the case of Mertis v. Oh, No. 31 MAP 2023 (Pa. June 18, 2024)(Op. By Mundy, J.), the Pennsylvania Supreme Court had previously granted allowance of appeal to consider the application of Pennsylvania Rule of Civil Procedure 4003.6, which provides:

Rule 4003.6. Discovery of Treating Physician

Information may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter. This rule shall not prevent an attorney from obtaining information from

(1) the attorney’s client,

(2) an employee of the attorney’s client, or

(3) an ostensible employee of the attorney’s client.

In this case, the Court was tasked with determining whether the first exception to Rule 4003.6 (client exception) permits an attorney to obtain information outside the discovery process from one of the plaintiff’s nonparty treating physicians, who becomes the attorney’s client after another attorney in the same law firm became previously engaged to represent a named defendant physician in the same medical malpractice action.

The Court concluded that Rule 4003.6 precludes a law firm representing a defendant treating physician from obtaining information outside the discovery process from a nonparty treating physician by subsequently entering into an attorney-client relationship with the nonparty treating physician, we affirm the Superior Court.

Anyone wishing to review the Majority Opinion may be viewed at this LINK.  The Concurring Opinion may be viewed at this LINK.


Source of image:  Photo by Pixabay on www.pexels.com.

Pennsylvania Bar Association and Philadelphia Bar Association Issue a Joint Formal Opinion on the Use of Artificial Intelligence (AI) in the Legal Profession

Here is a LINK to a Joint Formal Opinion issued by the Pennsylvania Bar Association and the Philadelphia Bar Association on May 22, 2024 regarding advice on the use of Artificial Intelligence (AI) in the legal profession.

The Opinion itself notes that it is "advisory only" and is not binding on the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court.  The Opinion further notes that the Opinion only carries such weight as an appropriate reviewing authority may choose to give it.

Generally speaking, the Opinion recommends that attorneys be aware of, and competent with, the use of AI in the legal profession.  The Opinion recommends that those in the legal profession check the veracity of all information generated through the use of AI, including citations to legal authority.  The Opinion also cautions that client confidentiality should be protected at all times.

Source of image:  Photo by ThisIsEngineering on www.pexels.com.

Jurisdiction and Venue Issues Addressed in Insurance Coverage Action


In the case of Franko v. USAA, No. 2023-CV-1996 (C.P. Lacka. Co. May 31, 2024 Nealon, J.), the court addressed a coverage action relative to the theft of an allegedly covered vehicle. After the carrier denied coverage, the insured filed a lawsuit for breach of contract and bad faith liability.

The carrier filed Preliminary Objections asserting a lack of subject matter jurisdiction due to the policy’s form selection clause that limited legal actions to a court and county and state where the covered person resided at the time of the of the accident. The carrier also filed a Preliminary Objection asserting lack of personal jurisdiction based upon the allegations of the Complaint. Also asserted were improper venue objections along with a legal insufficiency of the bad faith claim.

Judge Nealon ruled that the policy’s form selection clause was inapplicable under the language of the policy given that the Plaintiff’s “comprehensive loss” claim arose from the deliberate “theft” of his vehicle, rather than an unintentional “accident.”

The court additionally ruled that, by obtaining a certificate of authority to conduct insurance business in Pennsylvania, the carrier had voluntarily consented to general personal jurisdiction in Pennsylvania.

The court additionally found that the allegations of the Complaint, and the exhibits attached thereto, stated a cognizable bad faith claim against the carrier.

With regards to the venue issue, the court directed the parties to conduct venue discovery and to resubmit the challenge to the court for a decision thereafter.

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

Judgment on the Pleadings Granted Based on Expiration of Statute of Limitations


In the case of Leventry v. Vrabel, No. 23-CV-3022 (C.P. Cambria Co. May 13, 2024 en banc), the court granted a Defendant’s Motion for Judgment on the Pleadings in a fall down case.

According to the Opinion, the Plaintiff was cutting a tree branch on the Defendant’s property when he fell approximately thirty (30) feet from a ladder. The Plaintiff alleged that his injuries were caused by negligence by the Defendant.

After the pleadings were closed, the Defendant filed a Motion for Judgment on the Pleadings arguing that the applicable two (2) year statute of limitations had expired and that the Plaintiff’s claim was thereby time barred.

According to the record before the court, it was undisputed that the Plaintiff missed the deadline set by the statute of limitations for a personal injury claim based on negligence by one (1) day.

Plaintiff’s counsel noted that the delay was the result of mailing out the Complaint to Cambria County Prothonotary too close to the deadline.

Given that the Plaintiff did not file the lawsuit within the statue of limitations, the court granted the Motion for Judgment on the Pleadings.

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

I send thanks to Attorney Michael T. Della Vecchia of the Law Office of Mezzanote, Hasson & Sichok for bringing this decision to my attention.

Thursday, June 13, 2024

Motion To Amend to Add Claims of Recklessness/Punitive Damages Due to Truck Driver Using Headset Denied


In the case of Legions v. Abdurasulov, No. 4545-CV-2022 (C.P. Monroe Co. March 8, 2024 Williamson, J.), the court denied a Plaintiff’s Motion to Amend his Amended Complaint to reinstate a claim for punitive damages and allegations of recklessness and reckless indifference.

According to the Opinion, this matter arose out of a motor vehicle accident involving a tractor trailer. 

The court had previously ruled that allegations of reckless conduct pled the Plaintiff in earlier versions of the Complaint did not meet the minimal pleading requirement to sustain a cause of action for punitive damages. In this Opinion, it was indicated that the parties had completed certain aspects of discovery and the Plaintiff was attempting to have the claims of recklessness and the claims for punitive damages reinstated.

The Plaintiff asserted that dashcam footage from the Defendant tractor trailer’s truck allegedly showed that the Defendant truck driver had failed to stop for an adequate amount of time at a red light and also that the truck driver was allegedly distracted by speaking, via a headset in his right ear, to someone on the phone at the time of the accident.

The court agreed with the Defendant that the issues raised by the Plaintiff with regards to whether or not the truck driver had stopped or did not stop long enough at a red light had been previously rejected as being reckless conduct rising to the level of punitive damages.

As such, with this Opinion, the court addressed the issue of whether the Defendant tractor trailer driver acted recklessly by using a headset to speak with someone while driving.

After reviewing the law regarding punitive damages generally along with certain cases addressing the issue of whether a claim of punitive damages is appropriate when a driver is speaking on telephone at the time of the accident, the court ruled that the Plaintiff’s Motion to Reinstate the Claims of Recklessness and Punitive Damages would be denied. The court ruled that, under the facts of this case, driving a tractor trailer while speaking through a headset did not rise to the level of “willful, wanton, or reckless” conduct so as to allow an amendment of the pleadings as requested.

The court ruled that the evidence revealed that the driver was using a hands-free earpiece in his right ear, which device did not obstruct his view while driving. It was emphasized that the truck driver did not even have his hands on a cell phone at the time of the accident. The court otherwise ruled that the act of simply talking while driving at the time of an accident does not rise to the level of reckless conduct.

Accordingly, the court ruled that the Plaintiff’s claim for punitive damages is not supported by the evidence gathered during discovery. Accordingly, the motion was denied.

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

Source of image:  Photo by Brett Jordan on www.unsplash.com.

Kickball Injury Claims Against School Kicked Out of Court

In the case of Turner v. Lower Merion School District, No. 657 C.D. 2023 (Pa.Cmwlth. May 10, 2024 Wojcik, J., Wallace, J., Leavitt, S.J.)(Op. by Wallace, J.), the court affirmed the trial court’s decision in a personal injury case arising out of a kickball game at a school.   

The Commonwealth Court held that the Plaintiff’s lawsuit did not fall within the real property exception to governmental immunity where the Plaintiff’s claims stemmed from an injury caused by personalty rathe than realty. More specifically, the case involved a temporary kickball base that was not affixed to the ground and which slid out from under the high school student during a physical education class.   


As such, the Commonwealth Court affirmed the trial court's entry of a judgment on the pleadings in favor of the Defendant based upon governmental immunity and kicked the case out of court.


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


Source:  Law.com, “The Legal Intelligencer State Appellate Case Alert” (May 29, 2024)

Gist of the Action Doctrine Applied to Sustain Preliminary Objections


In the case of Spiritrust Lutheran v. Wagman Constr., Inc., No. 572 MDA 2022 (Pa. Super. April 23, 2024 Stabile, J., Dubow, J. and McCaffery, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court addressed issues surrounding Preliminary Objections raising, in part, the gist of the action doctrine.

With regards the validity of Amended Complaints, the Superior Court reaffirmed that, once an Amended Complaint is filed, the original Complaint becomes a nullity and is considered null and void.

The court also reaffirmed the rule that matters not raised in Preliminary Objections may not be considered by the trial court sua sponte.

With respect to the gist of the action doctrine, the Pennsylvania Superior Court reaffirmed that this doctrine precludes Plaintiff from recasting ordinary breach of contract claims as tort claims. More specifically, the Plaintiff is not permitted to pursue a claim of negligence where the alleged duty breached by the Defendant arises from the parties’ contract.

Here, the court ruled that, since the Plaintiff’s negligence claim repeated as the basis for negligence the same averments alleging a breach of contract, the negligence claims was properly barred by the gist of the action doctrine.

The court also noted that the services allegedly negligently performed by the Defendant were those provided in the parties’ contract.

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


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

Tuesday, June 11, 2024

Demurrer Asserted by Officers/Agents of Corporate Defendants Denied in Premises Liability Action



In the case of Bell v. S.W. Krauss, LLC, No. 2023-CV-1578 (C.P. Lacka. Co. May 1, 2024 Gibbons, J.), the court issued an Opinion in which, in part, overruled Preliminary Objections against individual Defendants who affiliated with a corporate Defendant in a personal injury matter.

According to the Opinion, the case arose out of an incident during which a Plaintiff was at a nightclub establishment in the early morning hours as a result of which she was allegedly hit by a stray bullet while she was allegedly located in the parking lot allegedly due to a dispute in the parking lot on the premises.

The Plaintiff sued various corporate entities as well as certain individuals who allegedly had relationships with those corporate entities.

The individual Defendants filed Preliminary Objections seeking to be dismissed by virtue of a demurrer.

Certain of the individual Defendants asserted that they were entitled to be dismissed because the Plaintiff’s Complaint failed to assert that those Defendants had acted with “misfeasance,” which is a requirement for negligence actions against corporate officers and agents.

Judge James A. Gibbons
Lackawanna County


Judge Gibbons reviewed the law in this regard and noted that, in general, an officer or agent of a corporation who takes no part in the commission of an alleged tort committed by the corporation is not individually liable to third parties for such a tort. 

However, an officer or agent of the corporation may be held liable tort under a “participation theory,” which states that the participating individual is subject to liability as an actor, not as an owner or officer. In order to impose liability under a participation theory under Pennsylvania law, a Plaintiff must establish that the individual officer or agent engaged in misfeasance rather than mere non-feasance.

The court agreed with the Plaintiff’s argument that the Complaint sufficiently pled a negligence cause of action against the individual Defendants as possessors of the property where the Plaintiff was injured, although not necessarily as corporate officers or agents.  As such, the individual Defendants demurrers were overruled.

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

Thursday, June 6, 2024

Summary Judgment Granted in Favor of Janitorial Service in a Slip and Fall Case Allegedly Involving an Icy Parking Lot


In the case of Robertson v. Harvard Maintenance, Inc., No. 23-1107 (E.D. Pa. April 11, 2024 Padova, J.), the court granted summary judgment in a matter involving a slip and fall on an allegedly icy parking lot.

According to the record before the court, the Defendant janitorial service’s contract was limited to the provision of cleaning services inside the building and did not extend to addressing any outdoor snow or ice.

The court noted that the allegation of a duty is an essential element of cause of action for negligence.

Here, the court found that the Plaintiff failed to establish any duty on the party of the Defendant janitorial service owed to the Plaintiff.  As such, summary judgment was granted.

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

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

Summary Judgment Denied in Premises Liability Case Brought by Jogger in Which Defense Alleged Trivial Defect with Sidewalk

In the case of Jennings v. Garner, No. CV 2021-CV-00391 (C.P. Lyc. Co. Feb. 2, 2024 Carlucci, J.), the court addressed a Defendant’s Motion for Summary Judgment in a case filed by a Plaintiff who had allegedly tripped and fallen on the Defendant’s uneven sidewalk while jogging at night.   

The Defendant asserted that the alleged 2-inch defect in the sidewalk was a trivial defect and that no duty rested upon the Defendant to correct the same.  The Defendant additionally asserted that the Plaintiff assumed a risk of injury by jogging at night.   


The court denied summary judgment after finding that, as a matter of law, a 2-inch defect in the sidewalk was not a trivial defect as asserted by the defense.   


The court additionally noted that the degree of assumption of risk by the Plaintiff was a matter to be resolved by the jury because it was certainly not 100% against the Plaintiff. 


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


SourceThe Legal Intelligencer Common Pleas Case Alert at Law.com (April 17, 2024). 


Source of imaging: Photo by Lara Jameson on www.unsplash.com.



Monday, June 3, 2024

Pennsylvania Supreme Court Upholds Homeowner's Insurance Carrier's Denial of Coverage in a Drug Overdose Case


In the case of Kramer v. Nationwide Insurance, No. 103 MAP 2022 (Pa. April 25, 2024) (Op. by Donohue, J., Dougherty, J., Concurring, Mundy, J., Concurring), the court addressed the scope of a controlled substance abuse exclusion found in a homeowner’s policy.

According to the Opinion, the dispute between the insureds and the homeowner’s carrier arose after a fatal drug overdose of the Plaintiff's decedent within the insured Defendant's home. The family of the decedent sued the homeowners and their son for wrongful death and survival action claims.

The homeowners sought coverage under their insurance policy with Nationwide.  Nationwide denied coverage based upon a controlled substance exclusion in the policy. The homeowners then filed this declaratory judgment action.

The Pennsylvania Supreme Court held that the finding of the Superior Court that the carrier was potentially required to pay out for emotional and mental distress damages was contrary to the unambiguous provisions of the policy and erroneous as a matter of law.

The Pennsylvania Supreme Court concluded that Nationwide had no duty to defend the underlying lawsuit because emotional and mental distress damages in the wrongful death claims were not "bodily injuries" as that term was considered under the policy language at issue.

Anyone wishing to review a copy of this decision may click this LINK.  Justice Dougherty's Concurring Opinion can be viewed HERE.  Justice Mundy's Concurring Opinion can be viewed HERE.


Source of image:  Photo by Tierra Mallorca on www.unsplash.com.