Trial Court Rules that Sovereign Immunity Law Should Not Apply Retroactively to Grant Immunity to Defendant in Bus Accident Case

In the case of Kim v. New Jersey Transit Corp., June Term, 2024, No. 00380 (C.P. Phila. Co. Aug. 11, 2025 Turner, J.), the trial court issued a Rule 1925 Opinion requesting that the Superior Court affirm the trial court’s Order denying the Motion for Judgment on the Pleadings filed the Defendant, New Jersey Transit Corporation.

According to the Opinion, the case involved a Plaintiff who was injured while she was a passenger on a train owned and operated by the Defendant. The Plaintiff alleges that, as she was exiting the train at Philadelphia’s 30th Street Station, a train door allegedly closed on her, causing her to fall and sustain injuries.

The court denied the Defendant’s Preliminary Objections asserting sovereign immunity. The Defendants followed up that ruling by filing a Motion for Judgment on the Pleading raising the same issues.

The Defendants argued that they were entitled to sovereign immunity under the Superior Court’s decision in Galette v. NJ Transit, 293 A.3d 649, 658 (Pa. Super. 2023).  Under that decision, the Pennsylvania Superior Court had previously ruled that New Jersey Transit Corporation is immune from suit in Pennsylvania under the application of the Eleventh Amendment to the Constitution of the United States.  

The defense also noted that the Pennsylvania Supreme Court had weighed in on the same case and ruled in the same fashion under its decision in Galette v. NJ Transit, 332 A.3d 776 (Pa. 2025). 

The trial court in this case noted that the United States Supreme Court had granted certiorari on July 3, 2025 to review the issues raised in Galette v. NJ Transit. 

In its trial court Opinion in this Kim v. NJ Transit case, the trial court continued to hold that the Defendant was not entitled to sovereign immunity and that the trial court had therefore properly denied Defendants’ Motion for Judgment on the Pleadings. In so ruling, the trial court in this case held that the Galette v. NJ Transit ruling by the Pennsylvania Supreme Court should not apply retroactively to preclude the Plaintiff’s suit on the basis of Eleventh Amendment sovereign immunity.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Nov. 6, 2025).

Superior Court Continues to Rule That The Gist of the Action Doctrine Is No Longer Valid

In the case of Poteat v. Asteak, No. 729 EDA 2023 (Pa. Super. Dec. 11, 2025) (en banc) (Stabile, J., dissenting with Pannella, P.J.E., and King, J., joining), the Pennsylvania Superior Court ruled that the trial court had erred in applying the gist of the action doctrine to dismiss a legal malpractice Complaint.

According to the Opinion, the Plaintiff retained an attorney to defend him in a criminal case. After the Plaintiff was found guilty, he sued his attorney alleging a breach of contract claim.

The appellate court emphasized that, while the Plaintiff asserted that the attorney breached the retainer agreement by failing to provide competent legal services, in the Complaint, the Plaintiff failed to plead any express written promise from the retainer agreement confirming that there was an explicit agreement that the attorney would provide competent legal services.

The Defendant attorney filed a demurrer and asserted that the breach of contract claim filed by the Plaintiff was legally insufficient under the gist of the action doctrine. More specifically, the Defendant asserted that the Plaintiff’s claims sounded in tort and that, since the Plaintiff’s claim was only one in negligence, the applicable statute of limitations barred the claim.

The Defendant attorney additionally argued in his Preliminary Objections that the Plaintiff’s Complaint was legally insufficient in that it was based on alleged implied duties under the contract where Pennsylvania law required a breach of contract claim to be based upon express written promises contained in the contract, which here, was a retainer agreement.

The Plaintiff responded by asserting that a breach of a specific contractual term was not necessary under the law and that general assertions of a breach of a duty were sufficient to support his breach of contract claim.

The trial court sustained the Preliminary Objections by recasting the Plaintiff’s breach of contact claim as a tort claim. The trial court then concluded that the statute of limitation barred that tort claim and, as such, the Complaint was dismissed.

On appeal, the en banc court overruled the trial court’s decision. The Superior Court in Poteat ruled that the trial court erred under the law of the subsequent Superior Court decision in the case of Swatt v. Nottingham, 342 A.3d 23 (Pa. Super. July 2, 2025) (en banc) in which that court overruled the validity of the gist of the action doctrine.  The Tort Talk post on the Swatt case can be viewed HERE.

The Superior Court in Poteat also asserted that an implied duty alone under a contract is sufficient to sustain either a breach of contract action or a claim sounding in tort.

Accordingly, the Poteat court held that the Plaintiff had an enforceable contractual right against his retained attorney based solely on an implied duty of the attorney to represent a client in a manner that comports with professional standards of the legal profession. Stated otherwise, the Superior Court in Poteat asserted that an implied duty, alone, may satisfy the duty element of a claim for a breach of contract for legal services.

As such, the Superior Court overruled the trial court’s decision in this case and, in doing so, continued the erosion of the validity of the gist of the action doctrine in Pennsylvania.

Anyone wishing to review a copy of the Majority Opinion this en banc decision may click this LINK.  The Dissenting Opinion written by Judge Victor F. Stabile and joined by Judge Panella and Judge King can be viewed HERE.

ARTICLE: Out With the Old, In With the New: A Civil Litigation Year-End Review

The below article of mine appeared in the December 11, 2025 edition of the Pennsylvania Law Weekly and is republished here with permission.

Expert Opinion // Civil Procedure

Out With the Old, In With the New: 

A Civil Litigation Year-End Review

By

Daniel E. Cummins

December 11, 2025

Over the past year, there was a steady flow of notable decisions handed down by the various state and federal courts across the Commonwealth of Pennsylvania as another year of civil litigation jurisprudence goes down in the books. Those decisions are reviewed below.

Overall, some old rules have been ousted as no longer viable, and some new rules have been enunciated to guide civil litigation practice going forward.

Readers may secure more details on the decisions summarized below, as well as a copy of the actual court decisions referenced, by going to the Tort Talk Blog and typing the name of the plaintiff into the search box in the upper right-hand corner of the blog.

Good Cause for IME

In a decision that was handed down near the end of the previous year in the case of Verba v. Erie Insurance Exchange, 326 A.3d 973 (Pa. Super. 2024 ), the Pennsylvania Superior Court addressed the standard for determining whether good cause exists to compel the Plaintiff to cooperate with a request for a medical examination under Pa.R.C.P. 4010.

The court noted that the requirement of good cause set forth in Rule 4010 is designed to protect parties against an unwarranted invasion of their privacy and to preclude the use of such a medical examination for improper purposes. Simply put, the court in Verba held that good cause can exist in a pending litigation if there is a controversy, or a dispute between the parties, regarding the validity of the plaintiff’s injury claims.

Allegations of Recklessness

The year 2025 began as 2024 ended—with state trial court judges looking past the fact that Pennsylvania is a fact-pleading state and allowing plaintiffs to plead recklessness and punitive damages claims in complaints with reckless abandon in all personal injury matters regardless of the facts involved. This trend continued throughout this year with trial court judges relying upon the errant Pennsylvania Superior Court decision in the case of Monroe v. CB H20, 286 A.3d 785 (Pa. Super. 2022) (en banc).

While the state trial court judges from all around the commonwealth continued to routinely allow claims of recklessness in every case, at least one federal district court judge said not so fast. In McKinney v. GM, No. 1:24-CV-00140-SPB (W.D. Pa. Aug. 28, 2025), Judge Susan Paradise Baxter of the U.S. District Court for the Western District of Pennsylvania granted a partial motion to dismiss claims of punitive damages after finding that the plaintiff failed to plead sufficient facts to support a punitive damages claim.

The court noted that allegations of recklessness that could support a punitive damages claim must involve more than claims of ordinary negligence. In McKinney, the court found that the products liability complaint contained no factual allegations identifying the nature of the alleged defect, how the defendant allegedly became aware of it, or what actions the defendant failed to take in conscious disregard of that risk.

Baxter, applying Pennsylvania law, emphasized that punitive damages are to be considered an extreme remedy that are not available for conduct arising from mere inadvertence, mistake or errors in judgment. The court found that the complaint in the McKinney case failed to contain any factual allegations that even suggested that the defendant acted with an evil motive or in conscious disregard of a known risk.

Attorney Discipline

The first notable decision handed down by the Pennsylvania Supreme Court over this past year was handed down in February. In the case of Office of Disciplinary Counsel v. Anonymous Attorney, [docket no. withheld by court] (Pa. Feb. 12, 2025), the Pennsylvania Supreme Court clarified the standard of proof for a disciplinary hearing involving allegations of attorney misconduct. The court opted for a higher burden.

According to the opinion, prior to this ruling, the previously accepted standard of proof for disciplinary cases against attorneys was “a preponderance of the evidence through clear and satisfactory evidence.” In this case, the Pennsylvania Supreme Court held that the burden of proof of disciplinary cases going forward should be “clear and convincing evidence.”

In ruling in this fashion, the court noted that “attorney disciplinary proceedings are not civil disputes for money damages, and the public’s and the attorney’s interests are not clearly minimal.” The court otherwise noted that “disciplinary proceedings are not strictly civil nor criminal in nature, but rather have been styled as ‘quasi criminal.’” For these reasons, the court chose to go with a higher burden of proof.

New Jury Selection Rule Goes Into Effect

In April, the new Pa.R.C.P 220.3 went into effect on April 1 requiring trial court judges to be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement. This rule was set to take effect on April 1, 2025, and can be found under Pa. R.C.P. 220.3.

Avenues of Recovery in Worker’s Compensation Cases Expanded

In May of this year, the Pennsylvania Supreme Court overturned decades of precedent with its decision in the case of Steets v. Celebration Fireworks, (Workers' Compensation Appeals Board), 335 A.3d 1076 (Pa. May 30, 2025), in order to allow a new line of worker’s compensation claims to go forward.

In this decision, the Supreme Court created new law and cleared the way for the estates of those individuals who died as a result of work-related injuries to collect benefits related to claims for disfigurement and injury. The court overturned long-standing case law regarding whether specific loss benefits are payable after an employee’s death from causes related to the work injury.

Archaic Local Rule Overruled

In another decision of note from May of this year, the Superior Court struck down a trial court’s local rule.

In the case of Scheibe v. Woodloch Resort, No. 1478 EDA 2024 (Pa. Super. May 20, 2025), the archaic local rule at issue from the Pike County Common Pleas Court required original signatures on all filings with the court, which did not allow for electronic signatures.

In Scheibe, the Pennsylvania Superior Court noted that the trial court had improperly refused to docket paperwork relative to the initial filing of the lawsuit. The prothonotary had rejected the filing because the documents contained only an electronic signature in violation of the local rules that required original signatures.

The appellate court first confirmed that there was no requirement in the Pennsylvania Rules of Civil Procedure for any filing to be hand-signed by a party or their attorney. Rather, the statewide Rules of Civil Procedure contemplated that a “signature” could include a computer-generated signature.

The Superior Court additionally held that, under the Pennsylvania Rules of Civil Procedure, documents mailed to the prothonotary’s office were deemed to be filed when received by that office as a litigant would have no control over when that office would stamp and process the filing. The Superior Court also confirmed that the Pennsylvania Rules of Civil Procedure expressly prohibited the rejection of a filing that complied with the Pennsylvania Rules of Civil Procedure where that filing did not meet the requirements of a local rule.

For all of these reasons, the Superior Court agreed that the complaint was timely filed. In the process, the appellate court struck down the archaic local rule of court.

New Cellphone Law

While texting while driving has been banned in Pennsylvania since 2012, in June of this year, a new law went into effect that banned any and all cellphone use while driving on the roads of Pennsylvania. Under certain exceptions noted in the law, a driver may use a cellphone for emergency purposes. A driver may also use a mobile device if they pull off to the side of the road and stop where a vehicle may safely remain in a stopped position.

The law, known as “Paul Miller’s Law,” went into effect on June 5, 2025, and made it illegal to use a cellphone in your hands in any way while driving. The law even prohibits these activities even when one is stopped at a red light or in a traffic jam. Under the language of the law, it appears that an overhead bluetooth system can be used to make calls as long as one uses the buttons on the steering wheel and the dash and not by way of pushing buttons on the cellphone.

For the next year through June 2026, the penalty for a violation will be a written warning. Starting June 5, 2026, the penalty will be a summary offense with a $50 fine, plus court costs and other fees. Moreover, if a driver is convicted of both vehicular homicide and driving while distracted, they may be sentenced up to an additional five years in prison.

Gist of the Action Doctrine

In July, the Pennsylvania Superior Court addressed the viability of the gist of the action doctrine. Under this doctrine, a negligence claim cannot be recast in a complaint as a breach of contract claim and vice versa.

In the case of Swatt v. Nottingham Village, 2025 Pa. Super. 138 (Pa. Super. July 2, 2025) (en banc) (Op. by Kunselman, J.), an en banc panel of the Pennsylvania Superior Court addressed the issue of whether the gist of the action doctrine should continue to be applied to contract actions as it has been for the past 26 years.

This case arose out of a nursing home malpractice claim. The plaintiff filed claims for both malpractice and breach of contract.

Despite a number of prior cases confirming that the gist of the action doctrine does apply as a defense where a breach of contract claim is added to a negligence claim, this en banc panel of the Superior Court concluded, after completing an exhaustive review of the case law allowing for alternative pleadings, that the gist of the action doctrine should no longer apply to prevent the pleading of an alternative breach of contact claim in a negligence action. Rather, the court noted that, under any set of facts, plaintiff could make claims for both negligence and breach of contact in the alternative wherever warranted.

This ruling eradicating this defense could prove important in those cases where a plaintiff’s negligence claim is potentially barred by the applicable two-year statute of limitations, but where the plaintiff attempts to keep the lawsuit alive by pleading, in the alternative, a breach of contract claim which has a four-year statute of limitations claim.

Another Archaic Local Rule Overruled

In August, the Superior Court struck down another archaic local rule in its decision in the case of Biros v. U Lock, No. 113 WDA 2024 (Pa. Super. Aug. 1, 2025).

In Biros, the Superior Court vacated a trial court order out of the Westmoreland County Common Pleas Court of in which the trial court had denied, with prejudice, an appellant’s motion to file her Pa. R.A.P. 1925(b) concise statement of errors complained of on appeal, nunc pro tunc.

The Superior Court noted that, Pa. R.C.P. 205.4(e)(2) bars any refusal by a trial court of an otherwise compliant pleading for filing based upon a requirement of a local rule pertaining to the electronic filing of legal papers. The appellate court found that Westmoreland County’s archaic requirement that notices of appeal could only be filed in person or by mail was such a local rule. Accordingly, the appellate court ruled that the appellant’s initial filing was properly and timely filed and was sufficient to initiate the appeal.

Doctrine of Forum Non Conveniens Clarified

In September of this year, the Pennsylvania Supreme Court provided clarity on the test to be applied in reviewing a petition to transfer venue under the doctrine of forum non conveniens in the case of Tranter v. Z & D Tour, No. 32 EAP 2024 (Pa. Sept. 25, 2025) (Op. by Wecht, J.).

This matter arose out of a multi-vehicle collision that occurred in Westmoreland County, Pennsylvania involving a passenger bus and commercial vehicles. The crash resulted in five deaths and numerous injuries. The plaintiffs who resided in various locations across the country and abroad, filed personal injury lawsuits in the Philadelphia County Court of Common Pleas against several corporate defendants, all of which conducted business nationwide. The defendants sought to transfer the cases to Westmoreland County under the doctrine of forum non conveniens.

The Supreme Court held that the Superior Court’s imposition of a “key witness” requirement in the analysis was inconsistent with Pennsylvania precedent on the issue of the type of evidence required to secure a transfer of a matter under the doctrine of forum non conveniens.

The Supreme Court otherwise clarified that a party seeking a transfer of a matter under the doctrine of forum non conveniens must identify the burdened witnesses and provide a general statement of their respective testimony. The Supreme Court confirmed that the petitioner need not show that the testimony of the witnesses is “critical” or “necessary” to the defense. As such, the Supreme Court upheld the trial court’s decision to transfer the cases out of Philadelphia County and to Westmoreland County as a proper exercise of the trial court’s discretion.

Arbitration Clauses and Children

On the same day in September that it issued its decision in the Tranter case, the Pennsylvania Supreme Court held that a parent who signs an arbitration agreement cannot bind a nonsigning spouse or a minor child to the terms of that agreement.

The case of Shultz v. Skyzone, No. 25 EAP 2023 (Pa. Sept. 25, 2025) (Op. by Donohue, J.), involved the claims brought on behalf of several minors who were injured at trampoline parks operated by Skyzone in Philadelphia. In each instance, only one parent had signed a “participation agreement, release, and assumption of the risk” on behalf of their child. That agreement contained an arbitration provision waiving the right to sue in court.

After the lawsuits for personal injuries were filed, the defendant filed petitions to compel arbitration, relying upon the signed agreements. The issue was litigated all the way up to the Pennsylvania Supreme Court.

The Supreme Court held that parents lacked the authority to bind a minor to an agreement to arbitrate, as this would deprive the minor of judicial protections and oversight designed to safeguard their interests. As noted above, the Pennsylvania Supreme Court also held that a parent who signs an arbitration agreement cannot bind a nonsigning parent, or minor child, to its terms.

The Pennsylvania Supreme Court handed down the same decision on the same date in the consolidated case of Santiago v. Philly Trampoline Park, No. 24 EAP 2023 (Pa. Sept. 25, 2025) (Op. by Donohue, J.).

Statutory Employer Doctrine Upheld

In October, in the case of Yoder v. McCarty Construction, 43 MAP (Pa. Oct. 23, 2025), the Pennsylvania Supreme Court reaffirmed the validity of the statutory employer doctrine under the Worker’s Compensation Act and rejected arguments from the plaintiff seeking to abolish this doctrine.

According to the opinion, the plaintiff suffered a workplace injury. The plaintiff was an employee of a subcontractor. The general contractor asserted the defense of statutory employer immunity in the personal injury action arising out of the accident.

The Supreme Court began its decision by reaffirming the law behind the statutory employer doctrine that has been in effect in Pennsylvania since 1930 as enunciated in the case of McDonald v. Levinson Steel, 153 A. 424, 426 (Pa. 1930).

That long-standing law provides that, under Section 203 of the Workers’ Compensation Act (Act), 77 P.S. Section 462, a general contractor that hires a subcontractor to perform work on a jobsite is deemed to be an “employer” of employees of the subcontractor in certain circumstances. In those instances where the subcontractor does not make payment, the general contractor will be considered liable for the worker’s compensation payments. In exchange for this imposition of secondary liability on the general contractor, the act’s statutory employer provision in Section 203 of the act, 77 P.S. Section 52, extends to a general contractor the same tort immunity afforded to the subcontractor of the injured worker in any third-party lawsuit arising out of the same accident.

As noted, at the Supreme Court level in this Yoder case, the court rejected arguments by the plaintiff that the statutory employer doctrine should be rejected or that such immunity should be deemed to be waivable in certain circumstances.

Artificial Intelligence

In the year 2025, courts and litigators found a steady rise in the use of artificial intelligence (AI) in many aspects of the law. AI platforms have begun to be used to assist in the evaluation of cases and also with respect to legal research and brief writing.

Near the end of this year, the Pennsylvania Supreme Court issued an interim policy to guide judges and court personnel who desired to use AI in their day-to-day work.

This policy allows for judges and court personnel to utilize AI for summarizing documents, conducting preliminary legal research, and drafting initial versions of documents. These rules, which are compiled under a document entitled the “Interim Policy On The Use Of Generative Artificial Intelligence By Judicial Officers And Court Personnel" was set to go into effect on Dec. 8, 2025.

It is anticipated that, in the near future, the Pennsylvania Supreme Court may also come out with rules to guide attorneys on the proper use of AI in the practice of law relative to any filings with the courts.

In the Pennsylvania federal courts, Judge Karoline Mehalchick of the U.S. District Court for the Middle District of Pennsylvania has been leading the way by crafting a civil practice order that is issued in all of her matters that requires attorneys to identify any AI-created portions of their court filings and to certify to the court that any citations contained therein have been checked for accuracy.

As noted in the Aug. 14, 2025, the Pennsylvania Law Weekly article titled “AI and Its Proper Use in the Practice of Law,” by Daniel E. Cummins and Michael Cummins, a number of lawyers in Pennsylvania and across the country have been sanctioned for submitting fake legal citations, known as hallucinations, as a result of utilizing AI platforms for legal research and the writing of briefs and not checking the accuracy of such citations. Such issues have caused a need for the above rules as well as a rise in continuing legal education courses designed to educate attorneys to be careful in utilizing these emerging technologies.

New Book

Last but not least, it is noted that, over the past year, the Pennsylvania Bar Institute (PBI) published an e-book titled Raising the Bar: A Practical Guide to the Practice of Law, written by Daniel E. Cummins. The book compiles articles written by me over the past 25 years providing practice and professionalism tips for lawyers and judges, many of which articles were originally published right here in the Pennsylvania Law Weekly. The book is designed to provide lawyers, whether they be new or experienced, with tips and reminders on how to improve their day-to-day practice of law and efforts at a work-life balance.

Daniel E. Cummins is the managing partner at Cummins Law in Clarks Summit, Pennsylvania. Contact him at dancummins@cumminslaw.net.

Reprinted with permission from the December 11, 2025 edition of the "The Pennsylvania Law Weekly © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

As Currently Required, Court Follows the Fad of Allowing Claims of Recklessness Regardless of the Facts Pled

In the case of Tierney v. Miggy’s Corporation Six, No. 3632-CV-2025 (C.P. Monroe Co. Sept. 10, 2025 Zulick, J.), the court overruled a Defendant’s Motion to Strike allegations of recklessness and punitive damages from the Plaintiff’s slip and fall Complaint.

According to the Opinion, the Plaintiff alleged that she slipped and fell on a puddle caused by a leaky air conditioner at the Defendants’ grocery store and sustained injuries as a result. The Plaintiff also claimed, in part, that the puddle in question was caused by the carelessness, recklessness, and negligence of the Defendants. The Plaintiff additionally asserted a claim for punitive damages.

The court followed the current fad of courts allowing general allegations of recklessness to be pled as an allegation of a state mind under Pa. R.C.P. 1019(b). The court noted that the issue of the validity of the claims could be revisited after discovery at the summary judgment stage.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Nov. 20, 2025).

Trial Court Judge Orders Opening of a Snap Default Judgment

In the case of Susquehanna Legal Aid For Adults & Youth v. Winkleman, No. CV-2024-01041 (C.P. Lyc. Co. Sept. 23, 2025 Carlucci, J.), Judge William P. Carlucci of the Lycoming County Court of Common Pleas granted a Plaintiff’s Petition to Open a Defendant’s default judgment filed relative to the Defendant’s counterclaim where the court found that the Defendants had entered a “snap” default judgment.

In ruling upon the Plaintiff’s Petition to Open and/or Strike the default judgment, the court reviewed the standard of review which required the court to determine (1) whether the default was excusable; (2) whether the parties seeking to open the judgment has shown a meritorious defense or claim, and (3) whether the Petition to Open has been promptly filed.

The court also noted that it “sincerely believe[d]” that the Rules of Civil Procedure are not intended to become a “bag of tricks.” See Op. at 5. 

In so noting, the court also referred to Pa. R.C.P. 126 of the Pennsylvania Rules of Civil Procedure that requires the rules to be liberally applied to secure the just, speedy and inexpensive determination of every action. Judge Carlucci noted that, under that rule, a court is, at every stage of the action, permitted to disregard any error or defect of procedure that does not affect the substantive rights of the parties.

Judge William P. Carlucci
Lycoming County 

Judge Carlucci additionally noted that it is the well-settled law of the Commonwealth of Pennsylvania that “snap judgments” are heavily disfavored.

According to the record before the court in this case, forty-one (41) minutes after the Defendants electronically filed their default judgment on their counterclaim against the Plaintiff, the Plaintiff had electronically filed their Preliminary Objections to the Defendants’ counterclaim.

Judge Carlucci noted that, had counsel for the Defendants made any effort to contact counsel for the Plaintiff before taking the default judgment, counsel for the Defendant would have learned that a responsive pleading was only minutes away from being filed.

Based upon the record before the court, the court found that the Petition to Open or Strike was promptly filed and was worthy of being granted. As such, the court opened the default judgment and directed the Plaintiff to file its responsive pleading.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Nov. 6, 2025).

Court Strikes Intentional Infliction of Emotional Distress Claim But Allows Punitive Damages Claim to Proceed In Premises Liability Case

In the case of Abda v. Keystone Klub Keyser Oak, LLC, No. 2024-CV-7649 (C.P. Lacka. Co. Nov. 20, 2025 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas overruled a Preliminary Objection in the nature of a demurrer filed against the Plaintiff’s claim for punitive damages but sustained Preliminary Objections in the nature of a demurrer filed against the Plaintiff’s claims of intentional infliction of emotional distress in a personal injury case.

According to the Opinion, a customer at a skill-based games venue sued the Defendant entertainment lounge for negligence and sued its owner for assault and battery and intentional infliction of emotional distress after the owner allegedly attacked and injured the customer on the premises.

In support of his claim of intentional infliction of emotional distress, the customer alleged that the owner later used his vehicle to cause damage to the grounds of the customer's residence and shouted profanities at the customer’s minor son in the process.

In response to the Complaint, the owner Defendant filed demurrers, including with respect to the Plaintiff’s demand for punitive damages. The Defendant asserted that the Plaintiff failed to allege specific facts to support a finding of willful or wanton misconduct.

The Defendant also filed a demurrer against the claims of intentional infliction of emotional distress.

In his Opinion, Judge Nealon noted that claims of willful or wanton misconduct may be averred generally under Pa. R.C.P. 1019(b).

The court additionally held that a demand for punitive damages is not governed by the “material facts” pleading requirement found under Pa. R.C.P. 1019(a) because a demand for punitive damages does not constitute a “cause of action.” Instead, a demand for punitive damages is viewed merely as an element of damages that is incidental to an underlying cause of action.

Here, where the customer stated a prima facie claim for assault and battery against the owner and had generally alleged willful and wanton misconduct by the owner, the court found support for overruling the demurrer to the claim for punitive damages.

With respect to the claim for intentional infliction of emotional distress, the court found that the Plaintiff’s Complaint did not describe conduct that was so outrageous in nature and extreme in degree so as to exceed all bounds of decency and be regarded as atrocious and utterly intolerable in a civilized society. Accordingly, in the absence of such facts, the court sustained the Defendant’s demurrer to the claim for intentional infliction of emotional distress.

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

Summary Judgment Denied in Supermarket Parking Lot Pothole Case

In the case of Schwab v. Giant Food Stores, No. 2024-CV-3936 (C.P. Lacka. Co. Dec. 2, 2025 Nealon, J.), the court denied summary judgment in a supermarket parking lot slip and fall involving a pothole.

In its responsive pleadings, the supermarket denied liability and also asserted that it did not own or control the parking lot at issue.

In response to the Motion for Summary Judgment, the Plaintiff asserted that discovery was ongoing with respect to the ownership and maintenance of the parking lot at issue.

The court noted that the supermarket Defendant merely alleged in its pleadings and its Motion for Summary Judgment that it did not own or maintain the parking lot. However, the supermarket Defendant did not submit any evidence in support of that allegation.

As such, the court denied the Motion for Summary Judgment based on issues of fact and allowed the case to proceed.

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

Judge Nealon of Lackawanna County Reviews the Standard of Review Applicable to a Motion for Recusal

In the case of Correctional Care, Inc. v. Lackawanna County, PA, No. 2021-CV-3079 (C.P. Lacka. Co. Oct. 10, 2025 Nealon, J.), the trial court set out the standard of review relative to a Petition to the court requesting a recusal of a trial judge or the entire trial bench.

In this case, the provider of healthcare services to correctional facilities filed a lawsuit against the County seeking compensation for monies allegedly owed to the Plaintiff under the parties’ contract.

During summary judgment proceedings, the healthcare provider produced a testimonial affidavit from one of the County judges who served as a prison board member during the relevant time period under the contract. In that affidavit, the County judge made references to facts pertinent to the issues presented under the contract.

Following its production of that affidavit, the healthcare provider filed a Petition requesting a “full bench recusal” based upon the other judge’s status as a potential trial witness. The healthcare provider also sought a change of venue.

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas, who addressed the recusal request, set out the standard of review.  Judge Nealon was not the judge who had provided the above-referenced affidavit.

Judge Nealon noted that a judge faced with a recusal request must first make a conscientious determination of the judge’s ability to assess the case in an impartial manner.

If the judge is satisfied with that subjective self-examination of objectivity, the judge must then consider whether the judge’s continued involvement in the case could reasonably create an appearance of impropriety.

The court referred to other cases in which judges of this particular court had recused themselves from matters in which a colleague was likely to testify.

The court noted that the presiding judge at the trial of this matter would have to determine whether the judge’s proffered testimony is admissible, and if that testimony is admissible, the acceptable scope of the cross-examination of the judge.

In this case, Judge Nealon noted that, although the court believed that it would decide those evidentiary issues impartially and objectively based upon the applicable law, the court’s consideration of the other factors led him to conclude that his proceeding in the matter as the judge when a colleague of his was a witness in the case could create an appearance of impropriety in reasonable minds.

Accordingly, Judge Nealon granted the request to recuse the bench from this case and directed the court administrator to reassign the pending summary judgment motions filed by parties, along with the Motion for a Venue Transfer, to another judge.

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

Source of image:  Photo by Tingey Law Office on www.unsplash.com.

HOLIDAY GIFT FROM TORT TALK: Complimentary Copy of the 2025 Tort Talk Civil Litigation Update

Here is the LINK to a complimentary copy of the 199 paged 2025 Tort Talk Civil Litigation Update booklet that was created Daniel E. Cummins, Esq.   

Tort Talk has been putting out this annual Civil Litigation Update Booklet over the past 14 years since at least 2011, whether it be at the Tort Talk Expos or here on the Blog.

The 2025 Tort Talk Civil Litigation Update is a compilation of the most notable Tort Talk posts over the past year or so and is offered here FREE OF CHARGE as a Holiday gift to all Tort Talkers.

If you wish to review the actual Opinion of any of the cases summarized in the Tort Talk 2025 Civil Litigation Update, please go to www.TortTalk.com and type the case name, or the name of the Plaintiff, into the SEARCH BOX near the upper right hand corner of the blog (not the top box, the second from the top box).  That will take you to the Tort Talk post on that case, in which post there should be a LINK to the actual Opinion.

I note that the PBI sells its annual Civil Litigation Update Booklet for approximately $79.00!  The Tort Talk Civil Litigation Update Booklet is FREE.

As such, to the extent you may have a desire to pay it forward in another way with kindness this Holiday season, I would politely propose that you please consider making a donation to a charity or a non-profit organization of your choice, or to Lackawanna Pro Bono or The Children's Advocacy Center.

Thanks for reading Tort Talk and and thank you for providing me with notable cases to highlight here on Tort Talk.  All is greatly appreciated.

HAPPY HOLIDAYS!

Daniel E. Cummins, Esq.

Cummins Law

Clarks Summit, PA

579-319-5899

dancummins@cumminslaw.net

Source of  top image:  Photo by Thais Araujo on www.pexels.com

Supreme Court Upholds Application of the Immunity Provisions of the Mental Health Procedures Act

In the case of Wunderly v. St. Luke’s Hosp. of Bethlehem, No. 119 MAP 2023 (Pa. Oct. 23, 2025) (Op. by Mundy, J.), the Pennsylvania Supreme Court addressed issues raised in a medical malpractice case under the Mental Health Procedures Act.

In this case, the Plaintiff had filed suit against St. Luke’s Hospital of Bethlehem alleging that the Plaintiff decedent was admitted to St. Luke’s with Stage 1 pressure ulcers on his buttocks and that, during his stay at St. Luke’s he acquired pressured-related skin breakdowns, pressure wounds, and the deterioration of pre-existing pressure wounds, which allegedly caused or contributed to his death.

The trial court had dismissed the Plaintiff’s Complaint after St. Luke’s argued that the decedent was involuntarily admitted to its facility under the Mental Health Procedures Act and that, under the Act, St. Luke’s was immune from liability as the Plaintiff had failed to allege that the medical providers had engaged in willful misconduct or gross negligence that caused the decedent’s death.

The immuity provision of the Mental Health Procedures Act, 50 Pa.C.S.A. Section 7114(a), provides that "[i]n the absence of willful misconduct or gross negligence...a physician...or any other authorized person who participates in a decision that a person be examined or treated under [the MHPA]...shall not be civilly or criminally liable for such decision or for any of its consequences." 

This trial court decision dismissing the case was affirmed by the Superior Court on appeal which found that the decedent was being treated primarily for his mental health after being involuntarily admitted for aggressive behavior related to his dementia. The Superior Court also ruled that the treatment of the Plaintiff’s physical issues was consequence oh the patient's mental health treatment.

Up on the highest rung of the appellate ladder, the Pennsylvania Supreme Court affirmed the Superior Court’s decision and found that treatment for other medical issues consequent with a patient’s mental health treatment or for medical issues that may arise during a patient’s involuntary inpatient admission fell within the scope of treatment entitled to immunity under the Mental Health Procedures Act.

Anyone wishing to review a copy of this decision may click this LINK.  The Dissenting Opinion can be viewed HERE.


Source: The Legal Intelligencer State Appellate Case Alert, (Nov. 11, 2025).

Source of image:  Photo by Ectactics Inc. on www.unsplash.com.

Judge Powell of Lackawanna County Addresses Plethora of Issues Raised in Medical Malpractice Matter

In the case of Doyle v. Keyed, No. 2024-CV-9036 (C.P. Lacka. Co. Oct. 16, 2025 Powell, J.), the court issued a decision denying various Preliminary Objections filed in a medical malpractice action arising out of the death of an infant during a complicated delivery.

Of note, Judge Powell of the Lackawanna County Court of Common Pleas overruled nearly all of the challenges submitted by the Defendants, including a request by Lehigh Valley Hospital-Pocono Defendants’ request to severe their case from the claims against the St. Luke’s Hospital Defendants.

The court additionally rejected one doctor’s claim that he could not be held vicariously liable for actions by the hospital staff that worked under him. The court noted that vicarious liability may attach in a medical malpractice case under the “captain-of-the-ship” doctrine or where the physician exercises actual control over the staff members.

The court noted that, because the Complaint in this matter alleged that the doctor at issue had directed and supervised others during the delivery, those allegations stated a viable theory of vicarious liability.

The court additionally upheld the Plaintiffs’ claims of direct and corporate negligence against various Defendants.

Judge Mark Powell
Lackawanna County

Judge Powell also overruled objections to the claim for punitive damages. The court found that the facts alleged could, if proven, constitute reckless disregard warranting punitive damages.

The court also noted that, given that mental state conditions may be alleged generally under Pa. R.C.P. 1019(b), such claims could survive the pleading stage.

The court also disagreed with the defense argument that childbirth procedures are not surgical acts requiring informed consent. The court noted that the allegations that the doctor failed to discuss surgical alternatives despite risk factors present stated a plausible informed-consent claim.

The court also allowed the Plaintiffs’ claims for negligent infliction of emotional distress to proceed. The court found that the Plaintiff-mother, having suffered a physical impact and having observed her child’s death, and the father, who witnessed the traumatic delivery and aftermath, both fit within the recognized categories of Plaintiffs permitted to pursue negligent infliction of emotional distress claims. In this regard, Judge Powell noted that observation of the results of negligent medical acts can satisfy the contemporaneous observation requirement in a medical malpractice context.

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

Source:  Lackawanna Jurist (Oct. 31, 2025).

Source of image: Photo by Samuel Ramos on www.unsplash.com.

Summary Judgment Denied in Barstool Tip Over Case

In the case of Caskey v. Outback Steakhouse, No. 24-CV-00897 (E.D. Pa. Sept. 22, 2025 Young, J.), the court denied a Defendant’s Motion for Summary Judgment in a customer’s premises liability suit.

The Plaintiff alleged that, while dining at the bar, the barstool he sat upon slid backwards as he leaned forward to eat, causing him to fall and sustain injuries.

The restaurants manager partially captioned the incident by using his phone to record a short video of the restaurant’s surveillance footage. The original surveillance video was not preserved. Also, the barstool involved in the incident was discarded before an expert site inspection could occur.

The Plaintiff provided evidence that there were multiple prior complaints of slippery and wobbly barstools reported to the Defendant’s managers. Moreover, the Plaintiff personally documented a subsequent incident where another barstool slid out from under his wife.

The Plaintiff continued that the Defendant’s failure to inspect the barstools and maintain appropriate facility inspection records reflected a breach of its duty of care owed to its customers as business invitees.

The Defendant filed a Motion for Summary Judgment asserting that there was insufficient evidence of a dangerous condition or of actual or constructive notice of that condition.

The court denied the Motion for Summary Judgment by finding that the Plaintiff had raised genuine issues of material fact regarding whether the barstool was a dangerous condition and on the issue of whether the condition was open and obvious. The court more specifically found that the evidence presented by the Plaintiff, including eyewitness and expert testimony, prior customer complaints, evidence of barstool deterioration, and inconsistences in the Defendant’s record-keeping, all gave rise to factual disputes that were appropriate for resolution by a jury.

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 Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Superior Court Affirms Trial Court Decision Granting Preliminary Objections To Venue

In the its Non-precedential decision in the case of Ojo v. Hanover Foods Corp., No. 2037 EDA 2024 (Pa. Super. Sept. 25, 2025 Panella, J., Nichols, J., and Ford Elliot, P.J.E.) (Op. by Panella, J.), the Pennsylvania Superior Court affirmed a trial court’s sustaining of Preliminary Objections asserting that venue was not proper in Philadelphia County. 

The court in this matter reviewed the record and stated that there was no evidence that the Defendants in this matter regularly conducted business in Philadelphia. The court noted that the Defendant did not have any products in Philadelphia or any physical presence in that County.

The court noted that the mere shipment of raw materials in sealed containers does not constitute conducting business in this context.

The court also ruled that the purchasing of products from Philadelphia suppliers did not constitute doing business in Philadelphia in this context.

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.

Federal Court Motion To Transfer Denied

In the case of Bryne v. Terex USA, LLC, No. 2:25-CV-00586-GAM (E.D. Pa. McHugh, J. Oct. 28, 2025), the court denied a Motion by a Defendant to Transfer a case from the Eastern District to the Middle District, where the alleged accident occurred.

In so ruling, the court noted that, under 28 U.S.C. §1404(a), District Courts may transfer a case to another district where venue is proper “for the convenience of parties and witnesses or in the interests of justice.”

The court applied the various factors set forth in the case of Jumara v. State Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir. 1995) to support the denial of the Motion to Transfer.

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


Source: Article – “Fed. Judge Rejects Manufacturer’s Attempt to Move Product Liability Suit to Middle District,” By Riley Brennan of The Legal Intelligencer (Oct. 30, 2025).

Court Finds That Defendant Failed To Produce Evidence in Support of Improper Venue Argument

In the case of Barnowski v. CBRE Global Investors, LLC, No. 2023-CV-2568 (C.P. Lacka. Co. Oct. 2, 2025 Nealon, J.), the court addressed venue issues in a premises liability action.

According to the Opinion, the Plaintiff commenced this premises liability lawsuit against two (2) owners of a property that was located in Montgomery County where the Plaintiff allegedly fell. 

The Plaintiff asserted that venue was proper in Lackawanna County under Pa. R.C.P. 1006(c) and 2179(a)(2) since he alleged joint and several liability and given that one of the Defendants allegedly regularly conducted business in Lackawanna County.

The Defendants filed Preliminary Objections asserting improper venue. 

Given that the Defendant’s Preliminary Objections were not supported by affidavits or evidence, the parties were initially directed to conduct venue-related discovery pursuant to Pa. R.C.P. 1028(c)(2) and to, thereafter, resubmit the issue to the court.

During the course of that discovery, the Defendants produced a corporate designee who testified under oath that she did not know whether the Defendant’s conducted any business in Lackawanna County or owned any property or employed any workers in this county.

Judge Terrence R. Nealon
Lackawanna County

The court noted that the Defendant’s Preliminary Objections asserting improper venue was resubmitted to the court for a decision based upon the limited evidentiary record noted above.

In his decision, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reaffirmed well-settled law of Pennsylvania that a Plaintiff’s choice of forum is entitled to “great weight.” 

The court also noted that the Defendants had the burden of producing evidence to establish that venue was improper in the chosen forum and that a change of venue was warranted.

The court found that the Defendants, despite being afforded a reasonable opportunity to produce evidence to support their improper venue argument, had failed to do so. As such, Judge Nealon ruled that, given that the Plaintiff had asserted joint and several liability against the Defendants, venue is proper as to both Defendants and the Preliminary Objections asserting improper venue with respect to Lackawanna County was overruled.

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


Source: Lackawanna Jurist (Oct. 31, 2025).

Summary Judgment Denied in Case Involving Trip and Fall on Jogging Trail

In the case of Sember v. Lackawanna Heritage Valley Auth., No. 2024-CV-3255 (C.P. Lacka. Co. Oct. 22, 2025 Powell, J.), the court addressed a Motion for Judgment on the Pleadings filed by the Defendants claiming immunity under the Recreational Use of Land and Water Act relative to a trip and fall incident that occurred while the Plaintiff was jogging on the Lackawanna Heritage Trail.

The City of Scranton, which was a Co-Defendant, additionally asserted that it was entitled to immunity under the Political Subdivision Tort Claims Act.

Both Defendants asserted that they were entitled to immunity under the Recreational Use of Land and Water Act given that the trail was on recreational land that was open to the public without charge. 

The Defendants asserted that the Act provided that owners owe no duty to recreational uses to maintain safety or to warn of dangers, including with respect to paved and unpaved trails. The Defendants claimed that the Lackawanna Heritage Valley Authority and the City of Scranton both constituted owners under the Act. 

Here, however, the Plaintiff alleged a man-made hazard, that is, a raised concrete base, and also asserted that the Defendants knew of that condition but failed to repair it or warn the persons entering the land about the condition. 

Judge Mark Powell
Lackawanna County

As such, Judge Mark Powell of the Lackawanna County Court of Common Pleas held that there were issues of fact and that it could not determine from the pleadings alone whether the RULWA applied at this early stage of the litigation.  The court more specifically found that factual development was required to assess whether the condition at issue was part of the trial’s recreational use or an artificial structure beyond the protection of the Act.

Relative to The City’s claim of governmental immunity under the Political Subdivision Tort Claims Act, the City asserted that it was immune because the trail was maintained by the Lackawanna Heritage Valley Authority and was not under The City’s “care, custody, or control.” The City of Scranton also argued that the Plaintiff’s claim did not fall under any of the exceptions to the grant of immunity.

The court found that the record was insufficient to determine the extent of each Defendant's control or whether the defect constituted a dangerous condition of real property that might trigger an exception to immunity. In light of these questions of fact, the court denied the Motion for these additional reasons.

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


Source: Lackawanna Jurist (Oct. 31, 2025).

CORRECTION OF TITLE OF YESTERDAY'S POST

 

The title of yesterday's post indicated that the court in the premises liability case had "granted" the summary judgment motion.  That was incorrect.  As confirmed in the synopsis of the case provided, the court had actually denied the motion for summary judgment.

I think I must have just wanted to see what a title like that would have looked like.

Sorry for any confusion caused.

You may say I'm a Dreamer.....

Imagine by John Lennon

Summary Judgment Denied in Parking Lot Slip and Fall Case

In the case of Shea v. Kalahari Resorts & Conventions – Poconos, No. 3:23-CV-814 (M.D. Pa. Sept. 22, 2025, Mariani, J.), the court denied a Motion for Summary Judgment in a slip and fall matter involving ice and snow on sidewalks.

In this matter Judge Mariani initially overrulled the Defendant's Motion in Limine to preclude the Plaintiff's engineering expert from testifying at trial.

The court also noted that it could not state, from the information in the record, that the winter conditions in the parking lot of the Defendant's premises amounted to an open and obvious condition.   

The court found that there were genuine issues of material fact as to whether or not the hills and ridges doctrine applied. In this regard, the court noted that the storm at issue had ended eleven (11) hours prior to the accident.

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.

Court Denies Motion For Summary Judgment in Store Trip and Fall Case

 In the case of Vargas v. Wal-Mart Supercenter, No. 3:22-CV-01642 (M.D. Pa. Oct. 7, 2025 Latella, Mag. J.), the court denied a Defendant’s Motion for Summary Judgment in a premises liability case. 

The Defendant was attempting to rely upon surveillance videotape evidence that showed the Plaintiff's actions at the time of the incident.  The Defendant also asserted that the video confirmed that the conditin that the Plaintiff encountered was open and obvious.

Federal Mag. Judge Leo Latella

Federal Middle District Court Magistrate Judge Leo Latella ruled that the Defendant’s surveillance videotape evidence did not reach the level of an irrefutable physical fact that could support summary judgment in this slip and fall matter.  

With regards to the Defendant’s argument that the interpretation of the video established the assumption of the risk defense as a matter of law, the court noted that it was for the jury to decide whether the Plaintiff’s account of the events leading to the fall down event was believable.  

The court additionally noted that the Defendant should have taken customer distraction into account in maintaining safety on the premises. 

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.  

BOOK PUBLISHED: RAISING THE BAR - A Practical Guide to the Practice of Law by Daniel E. Cummins

The Pennsylvania Bar Institute recently published my book entitled Raising the Bar: A Practical Guide to the Practice of Law.  This book has been published as an e-book.

To the extent you may be interested in the same, here is a LINK to the Book cover, the Table of Contents so that you can get a sense of the content, and an excerpt from the article entitled "Lessons from The Godfather."

The book compiles my articles from over the past two decades providing a wide variety of tips and encouragement to help young lawyers and experienced lawyers alike improve their practice of law.

Here is the LINK to the webpage on the PBI's website where the book can be purchased if you are interested.

Thank you for your consideration.

Pennsylvania Supreme Court Reaffirms the Statutory Employer Doctrine

In the case of Yoder v. McCarty Construction, 43 MAP (Pa. Oct. 23, 2025) (Op. by Brobson, J.)(McCaffery, J., concurring), the Pennsylvania Supreme Court reaffirmed the validity of the statutory employer doctrine under the Worker’s Compensation Act and rejected arguments from the Plaintiff seeking to abolish this doctrine.

According to the Opinion, the Plaintiff suffered a workplace injury when he fell through a hole during roofing work. The Plaintiff was an employee of a subcontractor.

The general contractor asserted the defense of statutory employer immunity in the personal injury action arising out of the accident.

The Supreme Court began its decision by reaffirming the law behind the statutory employer doctrine that has been in effect in Pennsylvania since 1930.

That long-standing law provides that, under the Workers’ Compensation Act (Act), a general contractor that hires a subcontractor to perform work on a jobsite is deemed an “employer” that is secondarily liable to the injured employee of the subcontractor for the payment of compensation under the Act, provided that the subcontractor—the one primarily liable—fails to make payment. Section 302(b) of the Act, 77 P.S. § 462.

In exchange for this imposition of secondary liability, the Act’s statutory employer provision in Section 203 of the Act, 77 P.S. § 52, extends to a general contractor the same tort immunity afforded to the subcontractor of the injured worker.

At the Supreme Court level in this Yoder case, the court rejected arguments by the Plaintiff that the statutory employer doctrine should be rejected and/or that such immunity should be deemed to be waivable in certain circumstances. As noted, the Court rejected these arguments and instead reaffirmed that the statutory employer doctrine remains a valid part of Pennsylvania worker’s compensation law.

The case was remanded back to the trial court for further proceedings to determine whether the general contractor satisfied the elements of the five (5) part statutory employer test as formulated back in 1930 in the case of McDonald v. Levinson Steel Co., 153 A. 424, 426 (Pa. 1930).

Anyone wishing to review a copy of this decision may click this LINK.  The Concurring Opinion by Justice McCaffery can be viewed HERE.


I send thanks to Attorney Glen Ricketti of the Philadelphia office of the Margolis Edelstein law firm for bringing this case to my attention.

Summary Judgment Still Entered For Trucker Where GPS Confirmed Speed Contradicts Witness's Testimony on Speed

In the case of Thomas v. Orozco-Pineda, No. 3:24-CV-288 (M.D. Pa. Sept. 30, 2025 Mannion, J.), the court granted a partial Motion for Summary Judgment on a claim for punitive damages in a trucking accident case.

The court noted that the undisputed GPS data in the record established that the Defendant’s driver was not speeding at the time of the accident.

However, the court also noted that a witness testified at a deposition that the tractor trailer driver had been speeding moments before the accident.

Nevertheless, the court found that the witness's testimony did not establish a factual dispute sufficient to defeat the Defendant's summary judgment motion.

The court noted that where one party’s or witnesses’ version of events is blatantly contradicted by the record, such that no reasonable jury could believe it, a court should not accept or adopt that version of the facts for purposes of ruling on a Motion for Summary Judgment.

In addition to the GPS data confirming that the driver was traveling at or around 55 mph in a 65 mph speed limit zone at the time of the accident, the court stated that there was no other credible evidence of speeding.

The court additionally found that the "clean" road conditions did not support the Plaintiffs’ claims that even driving below the speed limit was too fast for the conditions. The court also noted that there was no reduced speed limit in effect at the time the accident occurred.

Accordingly, the court found that, given that there was no credible evidence of speeding on the part of the Defendants, the Plaintiffs had no factual basis for seeking punitive damages.

The court also ruled that, therefore, there was also no vicarious basis for punitive damages against the driver’s employer.

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 Le Minh on www.pexels.com.

Superior Court Clarifies Calculation of Interest and Attorney Fees in Bad Faith Cases

In the case of DiVincenzo-Gambone v. Erie Insurance, No. 1699 MDA 2024 (Pa. Super. Oct. 17, 2025 Olson, J., Beck, J., Dubow, J.) (Op. by Olson, J.), the Pennsylvania Superior Court clarified how interest and attorney fees should be calculated in bad faith insurance cases. 

In this decision, the appellate court also ruled in favor of the insured who had asserted that the carrier had wrongly withheld part of an Arbitration Award entered on the case presented. 

In this decision, the Superior Court vacated part of the trial court’s judgment by holding that the trial court miscalculated damages under the Pennsylvania bad baith statute when that court awarded compound interest instead of simple interest. 

The court also noted that the trial court had erred by basing attorney’s fees on a contingency rather than the lodestar method. Under the lodestar method, hours spent on a case by an attorney are multiplied by a reasonable hourly rate.

The Superior Court also ruled that interest should be calculated from the date that the underlying insurance claim was made.

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


Source: Article – “Pennsylvania Superior Court Clarifies State’s Bad Faith Law In Precedential Opinion,” By Tristin Hoffman The Legal Intelligencer (Oct. 21, 2025).