Friday, July 19, 2024

Issues in Motion in Limine Deferred By Court Until Trial Must Be Formally Raised Again At Trial


In the case of Wingate v. McGrath, April Term 2019, No. 04637 (C.P. Phila. Co. March 28, 2024 Powell, S.J.), the trial court issued a Rule 1925 Opinion addressed to the Superior Court and requested the Superior Court to reverse the trial court’s previous decision to grant the Plaintiffs a new trial.  

The trial court made this request in this Opinion after the trial court revisited the issue and found that the Plaintiffs had waived their objections to the Defendant’s medical expert witness by failing to renew the issues raised in the Plaintiff’s Pre-Trial Motion In Limine until after that expert for the defense had testified at trial.

According to the Opinion, this case arose out of a motor vehicle accident matter. During discovery, the Defendant produced reports from medical expert who offered an opinion that the Plaintiff’s back pain complaints were unrelated to the accident.

Prior to trial, the Plaintiff filed a Motion In Limine to preclude the Defendant’s expert from testifying. The trial court issued an Order indicating that the motion would be decided at the time of trial. 

However, at trial, the Plaintiff did not restate the issues raised in their Motion In Limine until after the jury had heard the testimony from the Defendant’s medical expert. 

The jury entered a defense verdict.

Although the trial court had initially granted the Plaintiff a new trial after the entry of the defense verdict, in the post-trial proceedings, the trial court ruled in this Rule 1925 Opinion for the Superior Court's review that, under Pennsylvania law, where a decision on a Motion In Limine is deferred by the trial court until the time of trial, a party who presented such a motion is obligated to restate the issues raised at trial in order to have them formally addressed by the trial court.   According to the law cited by this trial court, the failure to re-raise the Motion in Limine issues in a timely fashion at trial results in a waiver of those issues. 

In this regard, the trial court cited to the Pennsylvania Superior Court decision in the case of Blumer v. Ford Motor Co., 20 A.3d 1222, 1223 (Pa. Super. 2011).

As such, in this Rule 1925 Opinion, the trial court requested the Superior Court to reverse the trial court Order that granted the Plaintiff a new trial.

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


Source: “The Legal Intelligencer Common Pleas Case Alert,” Law.com (June 26, 2024).

Wednesday, July 17, 2024

Superior Court Affirms Grant of New Trial Based On Counsel Persistently Asking Questions About Inadmissible Matters



In the Non-Precedential decision by the Pennsylvania Superior Court in the case of Lopez v. Crown Equipment Corp., No. 3146 EDA 2022 (Pa. Super. May 21, 2024 Dubow, J., McLaughlin, J. and King, J.) (Op. by Dubow, J.), the Court affirmed a trial court’s granting of a new trial to a Plaintiff after a verdict was entered for a Defendant in a products liability case.

On appeal, the Superior Court noted that the defense counsel’s persistent questions about matters that were inadmissible in this strict liability matter served to prejudice the Plaintiff, thus requiring a new trial.

The Superior Court noted that the trial court judge was in the best position to observe how a trial is being conducted and to determine whether statements by counsel or a witness could have a prejudicial effect on the jury.

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.

Tuesday, July 16, 2024

Judge Hertzberg of Allegheny County Rules That Act 6 Reductions Need Not Be Applied to Expenses for Treatment by Out-of-State Doctor


In the case of Yurek v. Bower, No. GD18012387 (C.P. Allegh. Co. July 3, 2024 Hertzberg, J.), the trial court issued a Rule 1925 Opinion following a motor vehicle accident and, as part of the post-trial issues presented, considered whether medical bills related to treatment provided to the Plaintiff by an out-of-state doctor are subject to reduction under Act 6 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. Section 1797.

According to the Opinion, following the subject accident, the Plaintiff underwent a cervical spine fusion surgery which was performed in Florida.

The case eventually went to trial and, as part of the verdict, the jury awarded $150,000.00 in past medical expenses, most of which was related to the cost of the surgical treatment that took place in Florida.

During the post-trial proceedings, one of the issues raised was the trial court’s refusal to reduce the amount of the past medical expenses award any more than down to the figure of $148,000.00.  This amount was the specific amount that was presented in evidence as to the actual cost of the surgery. 

The defense asserted that the trial court erred in denying the defense motion to mold the jury’s $150,000.00 past medical expenses award down to $9,882.00 under an application of Act 6, 75 Pa. C.S.A. §1797(a), of the Pennsylvania Motor Vehicle Financial Responsibility Law.

Section 1797 of the Pennsylvania Motor Vehicle Financial Responsibility Law allows for a recovery of medical bills at up to 110% of what Medicare would pay a provider for the same service.

According to the Opinion, at trial, Judge Hertzberg allowed the Plaintiff to introduce medical bills into evidence before they were reduced under the MVFRL.  The court noted at trial that it would allow for and consider any post-trial motions to mold any medical expenses award.   The court stated that it took this approach based upon the Superior Court’s decision in the case of Pittsburgh Neurosurgery Associates v. Danner which allowed for awards involving these types of bills to be presented at trial in full, subject to being molded in a post-trial proceeding.

In this Yurek case, the court emphasized that, during trial, the treating doctor from Florida testified that he was not licensed in Pennsylvania and that he did not perform any medical work in Pennsylvania. 

There was testimony that there were allegedly no doctors in Pittsburgh who would do the type of cervical spine fusion surgery that the Florida doctor performed on the Plaintiff in Florida. The doctor also testified that he charged $120,000.00 for performing the surgery.  An additional $28,000 was charged by the surgical center.  As such, the total expenses for the treatment performed in Florida was $148,000.

At trial, the Plaintiff also testified as to her belief that no other doctors in Pennsylvania would perform the type of surgery at issue. 

In his decision, Judge Hertzberg noted that his review of the evidence led him to conclude that, at least $148,000.00 of the $150,000.00 award of past medical expenses was related to the treatment provided by the Florida doctor. 

The judge agreed with the Plaintiff’s argument that because the Florida doctor was not a Pennsylvania licensed provider, the expenses related to the treatment provided by that out-of-state doctor was not subject to reduction under Act 6 of the Motor Vehicle Financial Responsibility Law.

Judge Hertzberg reasoned that the express language of “cost containment” provision in the MVFRL, which is applicable to medical expenses in a motor vehicle accident case, “twice references medical bill amounts ‘applicable in this Commonwealth under the Medicare program.’" 

Judge Hertzberg noted that this language also signaled to him that the statute’s application was limited to only apply to Pennsylvania licensed providers.  

In so ruling, Judge Hertzberg also reviewed a regulation regarding the act that was issued by the insurance department. Those regulations, found at 31 Pa. Code §69.11 state, in pertinent part, that the cost containment or payment limitation provisions apply to care rendered by Pennsylvania licensed providers.  

As such, Judge Hertzberg used this additional analysis to find that Act 6 reductions did not apply to the care rendered by the doctor at issue in this case where the doctor at issue was not a Pennsylvania licensed provider, where the treatment did not take place in Pennsylvania, and where the treatment rendered was not available in Pennsylvania.

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

Source: Article – “Motor Vehicle Law Doesn’t Require Reduction of Medical Bills For Procedure That Wasn’t Available in PA., Judge Rules,” By Riley Brennan of the Pennsylvania Law Weekly (July 9, 2024).


Monday, July 15, 2024

No Loss of Consortium Claims Recognized for Injury to Pets


In the case of Witters v. Smith, No. 1:23-CV-1441 (M.D. Pa. June 10, 2024 Connor, J.), the court granted in part and denied in part a Motion to Dismiss in a case involving claims of intentional and negligent infliction of emotional distress relative to the shooting of the Plaintiff's dog.

In this matter, the only injury claimed was to the Plaintiff’s dog.  In this case, members of the Pennsylvania Board of Probation and Parole allegedly entered the Plaintiff's backyard without their permission and shot their pet dog.  The Plaintiff's pursued various claims.

The court ruled the Pennsylvania law requires that both intentional and negligent infliction of emotional distress claims require that the Defendant caused some physical harm to the Plaintiffs.  Here, no physical harm to the Plaintiffs was alleged.

The court additionally ruled that the law of loss of consortium claims does not extend to the loss or injury to pets of a plaintiff.

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.

Source of image:  Photo by Charles Deluvio on www.pexels.com.  

Monroe County Judge Awards Dog Attack Plaintiff Over $500,000 After Entry of Default Judgment

Monroe County Court of Common Pleas

In the case of Porter v. Voelkl, No. 2341-CV-2022 (C.P. Monroe Co. April 26, 2024 Zulick, J.), the court entered an award of damages in a dog bite case in favor of the Plaintiff after the Plaintiff had secured a default judgment against the dog’s owners.

Based upon the evidence presented, the court awarded the Plaintiff $502,400.00.

According to the Opinion, the Plaintiff had been knocked to the ground and injured when a loose dog attacked the Plaintiff’s dog in the parking lot of the Plaintiff's veterinarian.  As the dog fight occurred, the leash of one of the dogs wrapped around the Plaintiff and the Plaintiff was dragged around the parking lot by the leash.  The Plaintiff suffered injuries to his knee and shoulder.

The Plaintiff sought treatment for injuries to his knee and shoulder, including physical therapy, surgery and other treatment modalities. The Plaintiff also presented claims for economic damages.

After the trial, the court entered an award in favor of the Plaintiff consisting of $200,000.00 for pain and suffering, $64,800.00 for loss of earnings or earning capacity, and $237,600.00 for loss of future earnings or earning capacity.

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


Source: “The Legal Intelligencer Common Pleas Case Alert,” Law.com (June 26, 2024).

Thursday, July 11, 2024

Issues of Fact Preclude Summary Judgment in Case of Fall Through Porch Railing


In the case of Rockey v. Stearns, No. CV-2022-00791 (C.P. Lyc. Co. Feb. 29, 2024 Carlucci, J.), the court denied a Defendant’s Motion for Summary Judgment in a case where a Plaintiff allegedly fell off of a porch when the railing broke loose from a structural post and collapsed.

The court denied the Motion for Summary Judgment after finding that there were genuine issues of material fact to be considered by a jury.

More specifically, the court noted that the fact that the railing collaposed allegedly under only a light load, and given the condition of the railing as described by the Plaintiffs, there was support in the records that a jury could find that the railing was in a defective condition.

The court also noted that, the fact that the railing had been repaired earlier, and that the homeowner had owned the home for forty (40) years, supported a possible conclusion by a jury that the homeowner had either actual or constructive notice of the allegedly defective condition of the railing.

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

Source: Law.com, “The Legal Intelligencer Common Pleas Case Alert” (June 5, 2024).




Tuesday, July 9, 2024

Eastern District Court Finds Spoliation of Evidence Relative to Failure To Preserve Video After Plaintiff's Attorney Requested Preservation


In the case of Peronace v. City of Philadelphia, No. 2:23-CV-03943-KSM (E.D. Pa. April 16, 2024 Marston, J.), the court denied the city’s Motion for Summary Judgment in a prisoner’s rights case involving Monell issues.

According to the Opinion, the Plaintiff alleged that he had sustained multiple seizures while incarcerated and that the correctional officers delayed in providing him with medical assistance.

As part of this decision, the court addressed a Motion for Sanctions filed by the Plaintiff under an allegation that the prison officials intentionally failed to preserve video footage from outside of the prisoner’s cell.

The court reviewed this motion under F.R.C.P. 37(e) and found that, because the city should have known to preserve the video footage after receiving correspondence from an attorney for the Plaintiff to do so, and because there was no evidence that the city took any such steps, let alone reasonable steps to preserve the video footage, the court found that the videos were spoliated.

In terms of what sanction to impose, the court reviewed the factors set out under Rule 37(e) and ruled that, since it found that the city intentionally allowed relevant video footage to be overwritten by the video surveillance system, and considering the prejudice to the Plaintiff, the court fashioned a sanction and ruled that a jury may be instructed that the Defendant intentionally failed to preserve the disputed video evidence and that, therefore, the jury may presume that the lost video footage was unfavorable to the Defendant.

In a different portion of this Opinion, the court denied the city Defendant’s Motion for Summary Judgment after finding that issues of fact and testimonial differences existed on the case presented.

However, after finding that the Plaintiff did not submit evidence of any custom or policy of correctional officers violating inmates’ constitutional rights in the ways that the officers allegedly violated Plaintiff’s rights in this case, the court found that the city could not be held liable under the policy or custom prong of Monell. However, the court did find that the case against the city based upon an alleged failure of the city to supervise its correctional officers could proceed.

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


I send thanks to Attorney Jeffrey D. Schmidt of the Feasterville, PA law firm of Rovner, Allen, Rovner, Zimmerman and Schmidt for bringing this case to my attention.

Judge Mariani of Federal Middle District Court Addresses Trucking Accident Liability Issues


In the case of Galovich v. Morrissette, No. 3:21-CV-1523 (M.D. Pa. June 12, 2024 Mariani, J.), the court granted a partial summary judgment in a motor vehicle accident case that involved an accident between two tractor trailers on a highway.

The court noted that the Defendant’s filed Statement of Undisputed Facts presented in this case was deemed admitted due to the Plaintiff’s failure to file a response to the same as required by the local rules of court despite being put on notice of the need to file such a response.

The court otherwise ruled that there was no evidence to support the Plaintiffs’ punitive damages claim. The court noted that punitive damages are an “extreme remedy” that is only available in the most exceptional cases.

Here, the court found that there was no evidence to suggest that the Defendant driver had any subjective appreciation that anything he did was dangerous.

The court noted that a claimed violation of a traffic statute is not relevant to a driver’s subjective state of mind in assessing a claim for punitive damages.

The court additionally noted that the lack of any evidence to support punitive damages claims also barred any attempt by the Plaintiff to impose punitive damages vicariously on the driver’s employer.

The court additionally stated that an employer could not be held directly liable for punitive damages in any event.

The court also noted that a plaintiff cannot pursue a claim against an employer for negligent entrustment, hiring, supervision, or training when the employer admits that its employee was acting within the scope of employment when the accident occurred.

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.


Source of image:  Photo by Brian Stalter on www.pexels.com.

Monday, July 8, 2024

Trial Court Requests Superior Court To Reverse Trial Court's Own Venue Ruling


In the case of Martinez v. Elsner Engineering Works, Inc., No. 230102505 (C.P. Phila. Co. Feb. 15, 2024 Anders, J.), the trial court issued a Rule 1925 Opinion in which it requested the Superior Court to reverse the trial court’s previous ruling that sustained a Defendant’s Preliminary Objections as to venue and transferred the case from Philadelphia County to York County. 

The trial court noted that, in this case, the Plaintiff sued multiple Defendants in Philadelphia County for personal injuries allegedly caused by a defective industrial product/equipment.

The Plaintiff’s Complaint alleged that one (1) Defendant designed, manufactured and sold the industrial equipment in Philadelphia County and that another Defendant was a successor-in-interest to the manufacturer.

The successor-in-interest Defendant filed Preliminary Objections and asserted that Philaelphia County was an improper venue.  In its original decision, the trial court agreed and ordered that the case be transferred to York County.

With this Opinion, the trial court concluded that, upon further review of the matter, its Order should be reversed and that Philadelphia should be found to be a proper venue for the case because a transaction or occurrence took place in Philadelphia County out of which the Plaintiff’s cause of action arose. More specifically, the Plaintiff had alleged that the original equipment manufacturer had defectively designed, manufactured, and sold the disputed equipment in Philadelphia County.

The trial court noted that it had reviewed additional case law authority that offered guidance as to whether proper venue in a particular county existed based upon business activity of a predecessor corporation of a current defendant in a matter. In that regard, the court found that a predecessor corporation’s activities could be attributed to its successor for purposes of a determination of proper jurisdiction.

As such, the trial court was now concluding that Philadelphia County was a proper venue in light of the Plaintiff’s allegations that the Defendant at issue was a successor-in-interest of the original equipment manufacturer.  The trial court, therefore, requested the Superior Court it reverse the trial court's prior decision.

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


Source: Law.com, “The Legal Intelligencer Common Pleas Case Alert” (June 5, 2024).

Source of image: Photo by Nick Fewings on www.pexels.com.

Wednesday, July 3, 2024

Trial Court Transfers Case Out of Philadelphia Under Doctrine of Forum Non Conveniens


In the case of Van Horn v. The Giant Company, No. 220303215 (C.P. Phila. Co. Nov. 13, 2023 Carpenter, J.), the court filed a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s Order granting the Defendant’s Motion to Transfer Venue on this slip and fall case from Philadelphia County to Montgomery County.

The Plaintiff filed suit after the Plaintiff fell at the Defendant’s store which was located in Montgomery Township. The Defendant filed a Motion to Transfer the case to the Montgomery Court of Common Pleas.

The Plaintiff failed to appear at the argument and the court granted the motion. A Motion for Reconsideration filed by the Plaintiff was denied.

The Plaintiff then filed a Notice to Appeal asserting that the trial court erred when it granted the Defendant’s Motion to Transfer Venue pursuant to the doctrine of forum non conveniens.

The court stated that the record before it revealed that only connection of this case to Philadelphia was that the Defendant, Giant, operated some supermarket stores in Philadelphia.

The Defendant submitted to the court some sworn affidavits from material witnesses confirming the difficulty in time commitment in terms of traveling to Philadelphia for trial.

The court found that the evidence clearly established that the hardship for the moving Defendants was more than a mere inconvenience and that there was no substantial relationship to any activities, events, or transactions in Philadelphia County.

As such, the trial court asked the Superior Court to affirm its Order transferring the case to Montgomery County under the doctrine of forum non conveniens.

Anyone wishing to review this decision may click this LINK.

Source: The Legal Intelligencer Common Pleas Case Alert” Law.com (June 12, 2024).



Trial Court Grants Preliminary Objections Asserting Improper Venue in Philadelphia County


In the case of Smith v. Rodriguez, No. 220602304 (C.P. Phila. Co. Nov. 14, 2023 Carpenter, J.), the court sustained Preliminary Objections raising improper venue and, as a result, transferred this Philadelphia County case to Northampton County.

In this Rule 1925 Opinion addressed to the Superior Court, the trial court requested an affirmance of its trial court Order sustaining the Preliminary Objections to improper venue.

The trial court reviewed the evidence and found that the Defendant’s conduct of coordinating shipments via the Philadelphia Airport or the Philadelphia Seaport was insufficient to meet the test of proper venue for Philadelphia County pursuant to Pa. R.C.P. 2179.

The court stated that there was no evidence in the record to support a finding that the Defendant did business in Philadelphia that was regular, continuous, and habitual.

The court found that venue was proper as to all Defendants in Northampton County. Given that the Plaintiff did not request another county as an alternative venue, the case was ordered to be transferred to Northampton County.

In this Rule 1925 Opinion, the trial court requested the Superior Court to affirm the trial court’s Opinion.

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

Source: The Legal Intelligencer Common Pleas Case Alert” Law.com (June 12, 2024).


Source of image:  Photo by Nick Fewings on www.unsplash.com.

Monday, July 1, 2024

Photos From Abington Heights National High School Mock Trial Champions' Trip to Meet the President

Back on Memorial Day, the National Champion High School Mock Trial Team from Abington Heights High School traveled to Washington D.C. on invitation to have breakfast in the White House with the President.  

With the Team being a bunch of kids from the Scranton area who made their name nationally by winning the National Championship in Wilmington, Delaware, it was only fitting that their next stop would be the White House.

Following the breakfast, each member of the team got to shake hands and say hello to President Biden himself, followed by a tour of the White House.  The President also asked his staff to show the team the Oval Office.

Congratulations once again to a great bunch of students from the Abington Heights High School in Clarks Summit, PA (including my son, Christopher).

Team Photo with the President


Team Photo in the Oval Office


Team Photo at the President's Podium

Court Addresses Proper Method of Serving Out-of-State Defendants


In the case of Morgan v. Compton, No. CV-22-01100 (C.P. Lyc. Co. Carlucci, J.), the court found that a pro se Defendant satisfied the three prongs required to open a default judgment entered against him on a Plaintiff’s Complaint for personal injuries.

According to the Complaint, the parties were formerly in a romantic relationship. With regards to that relationship, the Plaintiff filed a three (3) Count Complaint alleging various personal injury allegations against the Defendant, who resided in California.

The court confirmed that the Plaintiff mailed the Complaint to the Defendant by certified mail but the certified mail was returned marked “unclaimed.”

The Plaintiff then mailed the Complaint to the Defendant by regular mail, which was not returned.

Thereafter, the Plaintiff mailed the Defendant a Notice of Intention to take a Default Judgment by first class mail and certified mail. The certified mail envelope was returned as unclaimed.

No responsive pleading was filed by the Defendant thereafter. A default judgment was then entered.

When the Plaintiff requested a trial on damages, the Defendant attended a conference by telephone and advised the court that he intended to defend the case.

Thereafter, the Defendant filed a Petition to Open the Default Judgment and the court held a hearing by Zoom. The Defendant claimed that he mailed a written response to the Complaint but that filing did not appear in the court file.

Judge Carlucci ruled that Pa. R.C.P. 4003 and 4004 governed service by mail on out-of-state parties. Under those Rules, if service by mail is returned as unclaimed, then the Plaintiff must make service by another means that does not include ordinary mail.

The court found that, at the time the default judgment was entered, the court lacked jurisdiction over the Defendant due to a lack of any completion of service of process.

The court also found that the Defendant had promptly filed a Petition to Open a Default Judgment, had explained the reasons for the delay due to the improper service, and had alleged not only a defense of improper service under Rule 403 but had also denied the allegations in the Complaint.

As such, the court granted the Defendant’s Petition to Open the Default Judgment and the ordered the Defendant to file an Answer within twenty (20) days.

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


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

Source of image:  Photo by Abstrakt XXcelence studios on www.pexels.com.