Superior Court Reverses Trial Court Dismissal of a Matter as a Discovery Sanction

In its non-precedential decision in the case of Spigelmire v. Lehnhoff’s Landscaping, No. 1456 MDA 2024 (Pa. Super. July 1, 2025 Bowes, J., Olson, J., and Stabile, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court overruled a trial court decision dismissing a personal injury case as a sanction for the Plaintiff’s discovery violations.

This case arose out of a slip and fall incident.

The Superior Court held that, while Plaintiff’s conduct was improper, that misconduct did not warrant as extreme consequence as a dismissal of the case.

During the course of the matter, one of the Defendants secured an Order compelling the Plaintiffs to produce records. When the Plaintiff still did not respond to the discovery requests thereafter, that Defendant filed a Motion for Sanctions. When Plaintiff’s counsel failed to appear at the sanctions hearing, the court ordered that the case be dismissed with prejudice.

Several days later, the Plaintiff requested the trial court to reconsider the dismissal, claiming that the Plaintiff missed the discovery deadline and the hearing on the Motion for Sanctions because her attorney failed to proper record and communicate the dates. The court denied the Motion for Reconsideration and the Plaintiff appealed. 

As noted, the Superior Court reversed, finding that the trial court abused its discretion in dismissing the matter.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.

Source: Article “Cases’ Dismissal Was Too Extreme Sanction For Plaintiff’s Discovery Violations, Pa. Appeals Court Says,” By Aleeza Furman of The Legal Intelligencer (July 2, 2025).

Source of image: Photo by Elena Mozhvilo on www.pexels.com.

Superior Court Rules, For First Time, that Gist of the Action Doctrine Does Not Apply To Support Dismissal of a Breach of Contract Claim

In the case of Swatt v. Nottingham Village, 2025 Pa. Super. 138 (Pa. Super. July 2, 2025) (en banc) (Op. by Kunselman, J.), a Pennsylvania Superior Court en banc panel addressed the issue of whether the gist of the action doctrine applies to contract actions.

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

A central issue in the case was to be decided by the court is whether the gist of the action doctrine applied to breach of contract action.

Typically, under the gist of the action doctrine, courts have held that negligence claims cannot be pursued based on facts that confirm that the gist of the action actually involves a breach of contract claim.

In this case, the Superior Court was addressing the opposite situation, that is, whether the gist of the action doctrine prevents a Plaintiff from proceeding on a breach of contract claim that is actually based upon facts that give rise to a negligence claim.

Despite a number of prior cases confirming that the gist of the action doctrine does apply in breach of contract cases, this en banc panel of the Superior Court, after completing an exhaustive review of the gist of the action doctrine concluded that the doctrine does not apply to breach of contact actions.

Rather, the court noted that, under any set of facts, Plaintiff could make claims for both negligence and breach of contact where warranted.

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

The Concurring Opinion by President Judge Lazarus may be viewed HERE.

The Concurring Opinion by Judge Stabile may be viewed HERE.

The Concurring Opinion by Judge King may be viewed HERE.

Source of image: Photo by Andrea Piacquadio on www.pexels.com.

Philadelphia Trial Court Transfer Venue of Case to Wayne County

In the case of M.O. v. Lavco, LLC, No. 240800817 (C.P. Phila. Co. May 5, 2025 Anders, J.), the Philadelphia County Court of Common Pleas issued a Rule 1925 Opinion requesting the Superior Court to affirm its Order sustaining the Defendant’s Preliminary Objections to venue only and transferring the case to Wayne County.

According to the Opinion, this case arose out of a negligence claim asserted against a summer camp for children located in Wayne County, Pennsylvania. The details of the underlying incident were not provided in the Opinion.

The Defendant filed Preliminary Objections arguing that venue for the action was not proper in Philadelphia County.

After the parties completed discovery under venue issue, the court sustained the Preliminary Objections.

The court noted that, although the Defendant advertised itself to Philadelphia County residents, no Philadelphia County residents had attended the camp between 2020 and 2022, one child had done so in 2023, and two children had done so in 2024.

It was additionally noted that an organization based in Philadelphia County had paid funds to the Defendant to facility the attendance of dozens of campers at the Wayne County camp.

The court sustained the Preliminary Objections to venue and ordered that the case be transferred to Wayne County. The court noted that the Defendant’s registered office and principle place of business were not located in Philadelphia County, but rather, was located in Wayne County. The court otherwise found that the Defendant camp did not regularly conduct business in Philadelphia County.

It was additionally noted that the cause of action arose in Wayne County.

The court otherwise found that the quality and quantity of the Defendant’s contacts with Philadelphia County did not rise to the necessary level to subject the Defendant to venue in Philadelphia County.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (July 2, 2025).

Article: The Appellate Ladder Looks Inviting For Plaintiffs

The below article of mine appeared in the July 24, 2025 edition of the Pennsylvania Law Weekly and is republished here with permission.

Expert Opinion

The Appellate Ladder Looks Inviting for Plaintiffs


July 24, 2025

By

Daniel E. Cummins

Recent decisions from the Pennsylvania Supreme confirm that plaintiffs continue to a pendulum shift in their favor. Over the past year, the Pennsylvania Supreme Court was beginning to show signs of moderation relative to their previous line of trailblazing decisions that overturned years of precedent in a plaintiff-favorable manner.

However, with its recent decisions, the Pennsylvania Supreme Court has again expanded the rights of injured parties to recover and have even telegraphed to the plaintiffs bar how to secure additional victories in the future.

Recent Decisions by Pa. Supreme Court to Expand Ability to Recover

For nearly the past decade, the Pennsylvania Supreme Court has issued one decision after another in favor of plaintiffs' causes. The plaintiffs bar has been repeatedly successful in convincing the court to overturn decades-long precedent that previously favored defendants.

For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Pennsylvania Supreme Court overruled the then-12-year-old Pennsylvania Commonwealth Court decision in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa. Cmwlth. 2006), to hold that PennDOT should only be immune from suit in guide rail claims in limited circumstances. Prior to Cagey, PennDOT was largely protected from any liability exposure relative to accidents involving guide rails. This decision expanded the ability of parties injured in highway accidents to include PennDOT in the lawsuit in the effort to seek an additional compensation.

In 2018, the Pennsylvania Supreme Court also expanded the ability of injured parties to seek recoveries by handing down another significant reversal of long-standing precedent. In the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Supreme Court liberalized the ability of injured parties to seek recoveries from governmental agencies.

The Supreme Court in Balentine overturned 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1). This ruling expanded the number of cases that would therefore fall within the scope of the exception to immunity. In other words, the ruling by the Pennsylvania Supreme Court allows more injured parties to seek a recovery against negligent governmental agencies.

A recent example of the Pennsylvania Supreme Court actually going too far in overturning long-standing defense-favorable precedent can be seen in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019). In Gallagher, the Pennsylvania Supreme Court overturned 20 years of precedent and held that the household exclusion found under automobile insurance policies was completely unenforceable as a matter of law across the board.

The Pennsylvania Supreme Court reiterated its plaintiffs-friendly stance on the household exclusion in the case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021). In Donovan, the court reaffirmed its previous decision in Gallagher v. GEICO and again held that plaintiffs need not worry about the household exclusion provision as it was invalid and, therefore, unenforceable.

The Gallagher decision threw the lower state and federal courts into a tizzy of conflicting decisions on whether the household exclusion should still be found to be enforceable under different factual scenarios.

Thereafter, without overtly acknowledging that the Gallagher decision went too far, the Pennsylvania Supreme Court walked back Gallagher’s complete eradication of the enforceability of the household exclusion in the case of Erie Insurance Exchange v. Mione, 289 A.3d 524 (Pa. 2023). In Mione, the Pennsylvania Supreme Court limited the Gallagher decision to its facts and agreed that the household exclusion did indeed remain valid and enforceable in at least certain circumstances.

The Pennsylvania Supreme Court also recently expanded the right of injured parties to recover in arbitration matters. In 2022, the court promulgated a new Rule that amended Pennsylvania Rule of Civil Procedure 1311.1, which applies to appeals from courthouse arbitration proceedings. Under the new Rule 1311.1, the Pennsylvania Supreme Court increased the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration award.

Under the old rule, that limit was set at $25,000. Under the new rule, the maximum limit has been changed to “an amount equal to the jurisdictional limit for compulsory arbitration of the judicial district in which the action was filed.” In most counties in Pennsylvania, the arbitration jurisdictional limit is $50,000. As such, the Pennsylvania Supreme Court essentially doubled the amount of money injured parties can potentially recover at trials following an appeal from an arbitration.

Recent Decisions That Limited Certain Defenses

In recent years, in addition to expanding avenues of recoveries for injured parties, the Pennsylvania Supreme Court has also benefited plaintiffs by limiting the scope of a wide variety of defenses in civil litigation matters.

In the case of Graham v. Check, 243 A.3d 153 (Pa. 2020), the plaintiffs were successful in convincing the Pennsylvania Supreme Court to limit the application of the sudden emergency doctrine. With this decision by the Pennsylvania Supreme Court, it is likely that the application of the sudden emergency doctrine will no longer be automatically applied in dart-out pedestrian cases, particularly where a plaintiff darts out within a crosswalk.

The Pennsylvania Supreme Court has also limited venue defenses by liberalizing the rules governing where a plaintiff may file their lawsuit.

In another the limitation of venue defenses, the Pennsylvania Supreme Court, in the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021), the Pennsylvania Supreme Court ruled that, given that the internet is available essentially everywhere, an internet defamation case may be filed anywhere in Pennsylvania, thereby allowing the plaintiffs to file such claims in the most liberal courts in Pennsylvania if they deem that appropriate.

Back in 2022, the Pennsylvania Supreme Court undid a 20-year-old Rule of Civil Procedure and approved plaintiffs-favorable amendments to the medical malpractice venue rules. Under the new medical malpractice litigation venue rules, plaintiffs now have wider options in terms of where they can file their medical malpractice lawsuits.

Hints at Moderation

In three recent decisions, all of which were expected to result in plaintiffs-favorable rulings, the Pennsylvania Supreme Court somewhat surprisingly went the other way.

As noted above, in the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Pennsylvania Supreme Court limited its previous decision in Gallagher v. GEICO on the household exclusion to the facts of that case. The court in Mione instead held that the household exclusion could still be enforced under limited circumstances.

Another example of a recent Pennsylvania Supreme Court decision that seemed to signal moderation was the case of first impression of Franks v. State Farm Mutual Automobile Insurance, ___ A.3d ___ No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.). In Franks, the court addressed issues of the stacking of UIM coverage in the automobile insurance personal injury actions. The court ruled that an insurance company is not required to secure another written waiver of stacked coverage from an insured in certain circumstances and rejected the plaintiff’s argument to the contrary.

Also, in a 2024 decision that was surprising to some, the Pennsylvania Supreme Court upheld the continuing validity of the regular use exclusion in the case of Rush v. Erie Insurance Exchange, ___ A.3d ___, 77 MAP 2023 (Pa. 2024).

Not So Fast

Despite hints at moderation, other recent cases again confirm that the overall orientation of the Pennsylvania Supreme Court is to favor plaintiff’s causes in most civil litigation matters.

This is confirmed, in part, by the court’s decision in the case of Brown v. City of Oil City, 294 A.3d 413 (Pa. 2023). With this decision, the Pennsylvania Supreme Court greatly expanded the ability of plaintiffs to bring lawsuits against construction contractors for personal injuries sustained at a construction site. The court in Brown allowed such claims to be brought even if the contractor had completed his or her work on the property years before.

Also, in its recent decision in the case of Steets v. Celebration Fireworks (Workers' Compensation Appeals Board), No. 3 MAP 2024 (Pa. May 30, 2025), the Pennsylvania Supreme Court overturned decades of precedent regarding whether specific loss benefits are payable after an employee’s death from causes related to a work injury. In this decision, the Supreme Court created new law and cleared the way for the estates of those individuals who died from work-related injuries to collect specific loss benefits.

Then, just last month, in the case of Jakmian v. City of Philadelphia, No. 266 EAL 2024 (Pa. June 11, 2025), the Pennsylvania Supreme Court denied an allowance of an appeal in a civil litigation matter, but Justice Kevin Dougherty issued a concurring opinion that invited plaintiffs to attempt to bring issues regarding the analysis of an exception to sovereign immunity back up the appellate ladder again so that the court could properly review the law on this topic.

In Jakmian, the plaintiff suffered injuries on a Philadelphia street after the front tire of her bicycle became stuck in a SEPTA trolley track that had been out of use for decades. The claims presented raised issues related to applicability of the real estate exception to the Sovereign Immunity Act.

In his concurring opinion, Dougherty seemed to signal that, if the issue were properly before the court, he would have ruled in a fashion that favored the injured party. However, he felt “constrained to agree that an allowance of an appeal is not warranted here.” Yet, Dougherty also wrote “nevertheless, I note my future willingness to explore the issues implicated herein if they arise in a more appropriate case.”

In the end, a review of recent jurisprudence in Pennsylvania confirms that the Pennsylvania Supreme Court is not only routinely ruling in favor of plaintiff’s causes but also seemingly inviting the plaintiffs bar to bring more issues up the appellate ladder for the court to consider. Now’s the time for the plaintiffs bar to get whatever important issues they can up to the Supreme Court as often as they can so as to make “good” law. Now is also the time for the defense bar and the carriers to resolve as many of those cases before they reach the Pennsylvania Supreme Court so as to avoid the creation of “bad” law.

Daniel E. Cummins is the managing attorney at Cummins Law where he focuses his practice on motor vehicle and trucking liability cases, products liability matters, and premises liability cases. He also serves as a mediator for the Federal Middle District Court and for Cummins Mediation. He is additionally the sole creator and writer of the Tort Talk Blog at www.TortTalkcom.

Reprinted with permission from the July 24, 2025 edition of the "The Pennsylvania Law Weekly © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Trial Court Requests Appellate Court To Affirm Denial of Petition For Relief From Entry of Judgment of Non Pros

In the case of Dennis v. E&I Ventures, LLC, May Term 2024, No. 2811 (C.P. Phila. Co. Jan. 22, 2025 Coyle, J.), the court issued a Rule 1925 Opinion addressed to the Commonwealth Court requesting that the appellate court affirm the trial court’s denial of the Petition for Relief from Judgment of Non Pros that had been entered against the Plaintiff.

This matter arose out of claims related to alleged personal injuries sustained by the Plaintiff during her prior tenancy in a property allegedly under the control of one or more of the Defendants that were sued.

After the Plaintiff did not move the action forward, one of the Defendants secured an entry of judgment non pros by default.

According to the Opinion, the trial court held that its Order should be affirmed where the Plaintiff’s petition was untimely, lacked the required signature of the Plaintiff as the petitioning party, failed to state a meritorious claim, and resulted in unnecessary and prejudicial delay to the Defendants.

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

Source:  "The Legal Intelligencer Common Pleas Case Alert," www.law.com (June 11, 2025).

Court Dismisses Case Based Upon Limitation of Actions Provisions in Insurance Policies

In the case of Sciacca Service Center v. Certain Underwriters at Lloyd’s London, No. 2023-CV-20559 (C.P.. Mont. Co. May 15, 2025 Saltz, J.), the court issued a Rule 1925 Opinion requesting the Superior Court affirm the trial court’s decision in granting judgment on the pleadings in favor of the Defendant insurance companies under a limitation of actions provision that was contained in the policy. 

This matter arose out of claims by an insured for recovery under two (2) separate insurance policies for storm damage to the insured’s property.

Based upon the record before it, the court determined that the Plaintiff’s lawsuit was barred by the suit limitation provision  contained in each of the policies at issue. 

As such, the trial court granted judgment on the pleadings in favor of the Defendant insurance companies and, in this Opinion, requested the Superior Court to affirm that trial court decision.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (June 11, 2025).

Commonwealth Court Rejects Plaintiffs Efforts to Place the Actions of SEPTA Officials As Being Outside of the Protections of Sovereign Immunity

In the case of White v. McGill, No. 186 C.D. 2024 (Pa. Cmwlth. June 30, 2025 Fizzano Cannon, J., Wolf, J., and Leadbetter, S.J.) (Op. by Fizzano Cannon, J.), the Commonwealth Court reversed a trial court’s Orders following a trial and remanded the case back to the trial court for a substantial molding downward of the verdict.

In this case, the appellate court cut a $4.65 million dollar bus crash verdict by 90% and reduced the award to $485,000.

According to the Opinion, this case arose out of an incident during which a mother and her son were struck by a SEPTA bus while walking across the street. The Plaintiffs alleged that the accident, which resulted in fatal injuries to the mother and injuries to the son, was caused by the bus driver’s negligence.  The Plaintiffs also claimed negligence on the part of SEPTA officers who allegedly allowed the continued use of an allegedly dangerous mirror system on the buses that created blind spots for its drivers.

The Plaintiffs otherwise contended that their claims against the officers of SEPTA were not subject to the sovereign immunity that would ordinarily limit the agency’s civil liability.

The appellate court rejected the Plaintiff’s argument that SEPTA and its officers had acted outside the scope of their statutory authority and were, therefore, not entitled to a protections usually afforded to state agencies under Pennsylvania’s Sovereign Immunity Act.

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

Source: Article – “Philadelphia Appeals Court Slashes $4.65M Bus Crash Verdict By 90% By Aleza Furman of The Legal Intelligencer (July 1, 2025).

Source of image:  Photo by Nellie Adamyan on www.unsplash.com.

Court Allows Allegation that Plaintiff Suffered "Other Injuries, The Extent of Which is Not Yet Known" To Stand

In the case of Brooks v. Shandor, No. 2024-CV-5771 (C.P. Wash. Co. July 2, 2025 Lucas, J.), the court addressed Preliminary Objections in a motor vehicle accident case in which the Defendant objected to a paragraph in the Plaintiff’s Amended Complaint in which the Plaintiff claimed to have suffered “other injuries, the extent of which is not yet known.”

The Defendant filed Preliminary Objections to that allegation under Pa. R.C.P. 1028(a)(3), asserting that the allegation lacked the requisite specificity required by the Pennsylvania Rules of Civil Procedure.

The court noted that, to determine if an allegation in a pleading contains the appropriate specificity, the court is required to look not only at the particular allegation at issue, but also that allegation in the context of the other allegations of the Complaint.

Here, the court ruled that, considering the Amended Complaint in its entirety, the Plaintiff was found to have adequately complied with the pleading rules.

More specifically, the court noted that the Plaintiff had detailed specific allegations of negligence and also alleged that the Defendant’s negligence caused multiple physical injuries to several identified body parts. The Plaintiff additionally detailed subjective symptoms of those injuries along with objective signs of those injuries.

The court otherwise noted that, under Pa. R.C.P. 1019(a), a Plaintiff need not plead evidentiary facts. The court also noted that Pa. R.C.P. 1019 does not require that injuries be pled specifically. Rather, claims for physical injuries, medical expenses, and lost wages are permitted to be pled generally.

The trial court otherwise noted that discovery and pre-trial statement requirements will protect the Defendant from being ambushed by any claims of a new injury at the time of trial. The Defendant was noted to have the right to inquire as to the specific nature and extent of the Plaintiff’s alleged injuries during the course of the discovery in the case. The court also noted that, in her eventual pre-trial statement, the Plaintiff will be required, under the local rules of court, to provide a “specific description of her damages” along with a copy of all medical expert reports.

The court otherwise noted that, to the extent the Plaintiff fails to comply with these requirements, the Defendant may, at that point, seek to preclude the presentation of any non-disclosed evidence of an injury at trial.

For these reasons, the trial court overruled the Defendant’s Preliminary Objections.

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


I send thanks to Attorney Danielle M. Deklewa of the Pittsburgh, PA law firm of Ainsman Levine, LLC, for bringing this case to my attention.

Court Rules That Expert Testimony Not Required To Establish Defendant's Duty to Provide a Safe Workplace

In the case of Chirdon v. 3M Company, Inc., No. G.D. 22-16244 (C.P. Allegh. Co. March 24, 2025 Kline, J.), the trial court denied the Defendant’s post-trial motions in an alleged unsafe workplace trial involving allegations of asbestos exposure to a boilermaker.

According to the Opinion, the jury awarded $2.3 million dollars in compensatory damages and $1.5 million dollars in punitive damages against the Defendant employer.

In this Rule 1925 Opinion, by the trial court, the court addressed defenses raised with regard to statute of repose, the method in which the concept of outrageous conduct may be admitted into evidence at trial, issues regarding the bifurcation of the liability and punitive damages phases of the trial and challenges by the defense to the Plaintiff’s failure to utilize an expert to explain OSHA violations.

Notably the trial court rule that expert testimony was not required to establish the Defendant's duty to provide a safe workplace.  Rather, the court ruled that the duty to provide a safe workplace, as well as the applicable OSHA regulations were within the understanding of ordinary jurors.

Overall, the trial court ruled that the Defendant failed to meet the standard of review for a judgment notwithstanding the verdict or for a new trial.  As such, the Defendant's post-trial motions were denied.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Ken Behrend of the Behrend Law Group, LLC located in Pittsburgh, Pennsylvania for bringing this case to my attention.

Source of image:  Photo by Sylvia Brazzoduro from www.unsplash.com.

ARTICLE: TAKE ME OUT TO THE BALLGAME: Little League Tips for Big League Lawyers

As we get ready for baseball's All-Star game tonight, here's an article of mine that appeared in the May 25, 2010 edition of the Pennsylvania Law Weekly. 

Take Me Out to the Ballgame
Little League tips for big league lawyers

By
Daniel E. Cummins
Pennsylvania Law Weekly/The Legal Intelligencer
May 25, 2010


It's that time of year again — Little League baseball is starting up for boys and girls.

The smell of hotdogs and Cracker Jacks permeates the air, while spent sunflower seed shells crunch underfoot on the dusty floor of the dugout.

For kids, it's a time for new uniforms, cleats and friends. For parents, on the other hand, it can be a time for more laundry, over-the-top coaches hellbent on winning and some equally overbearing fellow parents. As Yogi Berra said, "Little League baseball is a very good thing because it keeps the parents off the streets."

In any event, it's a time for great memories.

During one "quick" two-and-a-half hour long Little League baseball game, it became clear that a lot of the coaching shouted by the managers and others could also be applied to improve one's game in the practice of law.

'Let's Warm Up and Stretch'

Warming up and stretching in baseball prevents injuries. Doing the same before any court appearances may prevent damage to the client's case.

Whether it be the simplest of oral arguments on a slam dunk motion to compel, a direct examination, a cross-examination or an opening statement or a closing argument, all can benefit from a warm up by, at the very least, outlining the presentation on paper.

The more involved court presentations can be improved by a practice run-through in front of another person.

Like pre-game calisthenics or drills, going over such important presentations out loud, in a repetitive fashion, can assist one in committing the same to memory and tweaking it where necessary.

Even better, taking a lap with the presentation in front of another attorney or a lay person can result in tips on ways to improve upon the questioning of a witness or an address to the jury.

'Keep Your Eye on the Ball'

It is said that one of the hardest things to do in all of sports is to hit a pitched baseball. In fact, the "Splendid Splinter," Ted Williams, one of baseball's greatest hitters, said, "The hardest thing to do in baseball is to hit a round baseball with a round bat, squarely."

Analogously, one of the hardest things to do in the practice of law is to keep your eye on the ball when an opposing counsel is throwing all kinds of purposefully distracting maneuvers your way.

The best way to stay focused in this regard is to not take matters personally and to not stoop to the opponent's level in angry retaliation.

Wherever possible, ignore the shenanigans being put forth by opposing counsel and stay the course on your theory of the case. Keep your eye on the ball. Your client will be better off for it.

'Hustle!'

Everyone's always required to run in baseball. The coaches are always shouting, "Hustle," "Move," "Chase it down," "Run it out," "Run it in!"

Hustling in the practice of law includes quickly answering correspondence, promptly responding to discovery and motions, and staying ahead of opposing counsel's tactics. This will allow one's case to move in a quicker and smoother fashion, hopefully toward the desired result.

The key is to honor your client's case by continually hustling and not loafing, all the way to the conclusion of the matter. As Yogi Berra said, "The game isn't over until it's over."

'Eddie! Run to First Base ... Not Third!'

Learning the fundamentals and the rules of the game in T-ball lays the foundation for a good ballplayer later.

Former St. Louis Cardinals manager Whitey Herzog advised: "Fundamentals are the most valuable tools a player can possess. Bunt the ball into the ground. Hit the cutoff man. Take the extra base. Learn the fundamentals."

The same applies in the practice of law, which is founded on rules and fundamental concepts.
As such, in addition to staying on top of new caselaw, a quick read-through of the Pennsylvania Rules of Civil Procedure on a periodic basis, even once a year, is recommended. This will not only refresh your memory of certain rules, and loopholes, but you may also surprise yourself by learning something new.

'Keep Your Butt Down!'

Perhaps nothing irks a coach more than seeing a ground ball go through the legs of an infielder who failed to get his butt down and his glove in the grass.

Something that falls through the cracks in the practice of law may unfortunately bring you much more trouble than an exasperated sigh and a big roll of the eyes from a coach.

To prevent such problems, it helps to regularly look ahead on the calendar, not only to the next week, but over the next 30 days to be reminded as to what's coming up. If the time permits, start a draft of that brief now that's due 30 days out.

It would also be beneficial to stay on top of the mail and phone calls by attempting, whenever possible, to return such communications on the spot and certainly no later than 24 hours after receipt. Once incoming letters and phone calls get older than 24 hours they are more likely to be forgotten, especially with the onslaught of more letters and phone calls received by a fortunately busy attorney.

Staying on top of the calendar and these communications will prevent things from going through the wickets and will make it less likely that you will be charged with an error.

'Cover All the Bases!'

A good baseball coach teaches his players to cover all of the bases on any hit ball.

If the coaching is good, the players are trained so that the first baseman covers first, the second baseman or shortstop go to the bag at second and the third baseman covers third at the crack of the bat. Although such coverage of the bases is usually wasted energy, there is always the potential that this maneuver will come in handy and may even secure an out or save a victory for the team.

Therein lies the pressure of the practice of law — the need to cover all of the bases all of the time. In addition to staying on top of incoming communications as noted above, another way to cover all the bases is to stay on top of the law.

New developments in the law can be committed to memory not only by reading updates but by actively typing case summaries and citations to a running list on a file on your computer.

Whether it be by reading the case digest section of the Pennsylvania Law Weekly, the blue advance sheets of the Atlantic Second Report, or other sources of updates, knowing the latest cases in your field of practice will always keep you ahead of the competition.

'You Never Argue With the Umpire!'

While it may have been socially acceptable in 1977 for Billy Martin to kick dirt all over an umpire's shoes and for Tommy Lasorda to get in an ump's face and say things like "%#@&*!%#@&*%," such is not the norm any more in baseball.

Nor is it in the practice of law, although the legal drama shows on TV these days may continually tempt young lawyers into believing it is acceptable to be flippant and disrespectful toward judges.

Candor, respect, and deference remain the rule in the courtroom and should be honored at all times.

So as much as you may want to go all Earl Weaver on a judge and his or her decision (which is probably the correct decision anyway), it's probably best to leave things unsaid or take it up on appeal.

'You'll Get 'Em Next Time.'

In baseball, failure is not the end of the world — it's expected. Strikeouts and errors happen all the time. Mediocre catcher and great baseball announcer, Bob Uecker, once proudly stated, "I led the league in 'Go get 'em next time.'"

The key in Little League to keeping young ballplayers coming back for more, despite errors or strikeouts, is repeated encouragement.

Noting that perfection is not the goal in baseball, Ted Williams stated, "Baseball is the only field of endeavor where a man can succeed three times out of 10 and be considered a good performer."

While attorneys should strive for better than a .300 average in terms of successes, a lawyer obviously can't win every motion or every case. But what counsel can do is keep their head up, learn from the losses, and move forward in search for a better result the next time around. To quote Babe Ruth, one of baseball's all-time greatest homerun hitters, "Don't let the fear of striking out hold you back."

'Line Up to Shake Hands!'

Last but not least, don't forget to line up at the end of every "game," whether you win or lose, to shake hands with your opponent and say, 'Good game.'

And so while you're out there in the game of law, enjoy it while you're in it, for as the great baseball announcer Vin Scully once said, "It's a mere moment in a man's life between the All-Star game and the Old-Timer's game."

Daniel E. Cummins is the managing attorney at Cummins Law where he focuses his practice on motor vehicle and trucking liability cases, products liability matters, and premises liability cases. He also serves as a mediator for the Federal Middle District Court and for Cummins Mediation in these types of cases. He is additionally the sole creator and writer of the Tort Talk Blog at www.TortTalkcom.


Reprinted with permission from the June 4, 2025 edition of the "The Pennsylvania Law Weekly © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Source of image:  Photo by Mick Haupt from www.unsplash.com.

Federal Court Rejects Complaint Containing Shotgun Pleading Against All Defendants

In the case of Comer v. American Transmission Systems, Inc., No. 23-1464 (W.D. Pa. May 29, 2025 Hardy, J.), the court granted a Defendant’s Motion to Dismiss where the Plaintiff engaged in improper shotgun pleading in a Complaint.

In this matter, the Complaint contained multiple counts that each adopted all of the allegations of all preceding Counts.  The Complaint also asserted multiple claims against multiple Defendants without specifying which of the Defendants were more specifically responsible for which alleged acts or omissions. The court found that the Complaint did not allow for an understanding as to which claims were brought against which of the Defendants.

In its decision, the court separately reaffirmed the Pennsylvania law that holds that a Defendant hiring an independent contractor is not liable for the injuries sustained by that independent contractor’s employees from conditions that were equally obvious to the independent contractor and its employees.

Here, on the liability issues pled, the court found that the allegations in the Complaint did not establish any superior knowledge on the part of the Defendant at issue, any peculiar risk, or any retained control. Rather, the court found the allegations to be legal conclusion not supported by any specific facts.

Lastly, the court affirmed the general rule of law that, given that the Plaintiff’s estate had obtained a worker’s compensation recovery, the estate was not permitted to sue the decedent’s employer in tort.

The court did allow the Plaintiff an opportunity to file a more specific Amended Complaint.

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 Wesley Tingey on www.unsplash.com.

Court Denies Defendant's Motion to Dismiss Based on Forum Non Conveniens Doctrine in a Case Involving a Plaintiff from a Foreign Country

In the case of Charles v. QVC, Inc., No. 24-6703 (E.D. Pa. June 10, 2025 Savage, J.), the court denied a Motion to Dismiss based on the doctrine of forum non conveniens in a case involving a jurisdictional and/or venue issues in a case involving a Plaintiff who was a resident of a foreign country and who was injured in her home country of Trinidad.

This matter arose out of an incident during which a pressure cooker that the Plaintiff had purchased exploded while the Plaintiff was using it.    

The foreign Plaintiff brought suit in the Eastern District of Pennsylvania on a products liability claim relative to a product made in America. Even though the product was not manufactured in Pennsylvania, the Pennsylvania based employee made media representations about the product by marketing it from its Pennsylvania studios. The court additionally noted that one of the Defendants had a principal place of business in Pennsylvania.

The court noted that, although the Plaintiff’s foreign country was an adequate forum for the litigation of his personal injury matter, a foreign Plaintiff can support her choice of forum by making a strong showing of convenience.

The court in this matter noted that the connection of this matter to Pennsylvania established the convenience element in this matter.

More specifically, the court noted that none of the evidence located in the Plaintiff’s home country was critical for the litigation of the claim.

The court additionally noted that, as for the witnesses based in the United States within the Defendants’ control, it would be significantly more convenient for those witnesses to travel to a trial in the United States rather than going abroad to a foreign country.

Notably, the court also emphasized, on the issue of convenience, that the depositions of any relevant witnesses could be conducted remotely.

The court also found that the completion of a trial in the United States would be more convenient to all of the parties interested.

Lastly, the court emphasized that Pennsylvania has an interest in the safety of products introduced into the stream of commerce from Pennsylvania.

The court in this matter ruled, after careful consideration of the private and public interest factors, that litigating this case in the Eastern District of Pennsylvania would not result in oppression and vexation to the defendants out of all proportion to the Plaintiff's convenience. As such, the court denied the Defendant's motion to dismiss this action on forum non conveniens grounds.

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.

Eastern District Court Transfers Tioga County MVA Case to Middle District Court Under Doctrine of Forum Non Conveniens

In the case of Woodward v. General Motors, LLC, No. 2:25-CV-00605-JDW (E.D. Pa. June 6, 2025 Wolson, J.), the Eastern Federal District Court in Philadelphia granted a Motion to Transfer the case to the Middle District Court under the doctrine of forum non conveniens.

In this case, the Plaintiff's decedent's fatal motor vehicle accident involved occurred in rural Tioga County, which is located in the Middle District Court's jurisdiction.  In part the Plaintiff's estate stated a crashworthiness products liability claim.

The court noted that, while the Plaintiff would prefer to litigate the case in the Eastern District, all other relevant factors favored the transfer of the case to the district where the accident happened.

The court additionally noted that any claims sounding in product liability are deemed to arise where the product was utilized and where the injury occurred.

In this matter, the court noted that the site of the accident, the relevant evidence, and the important witnesses were all located outside of the Eastern District.

As such, the Court granted General Motors' motion to transfer the case.  

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.

Source of image:  Photo from Pennsylvanians for Modern Courts website.

Decision Drives Home Importance of Preserving Objections and Issues for Appeal

In its non-precedential decision in the case of Munoz v. Children’s Hospital of Phila., 1388 EDA 2024 (Pa. Super. May 27, 2025 Stevens, P.J.E., Panella, P.J.E., and Lane, J.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s denial of post-trial motions following a medical malpractice verdict in the amount of over $11.5 million dollars in favor of the Plaintiff.

Of note, the court ruled that a prior waiver of a preservation of an issue cannot be overcome by the trial court later addressing a waived issue in response to post-trial motions.

In this matter, the court ruled that, even though the Defendant hospital had not physically taken over the care of the decedent, who was still at a different facility, the Defendant hospital had funtionally done so by instructing the other facility’s staff on treatment measures. The Superior Court found that this was sufficient to create an assumed duty under the Restatement (Second) of Torts §323.

The weight of the evidence claimed was found to have been waived by the defense by the failure of the defense to specifically identify the challenges to the weight of the evidence in the Defendant’s Rule 1925(b) statement.

The Superior Court additionally noted that, relative to the Plaintiffs’ emotional outbursts during the course of the trial, the Defendant neither asked for a curative instruction or a mistrial.  As such, that issue was deemed to have been waived as well.

Lastly, the court on appeal ruled that the $14 million dollar verdict was not excessive under the facts presented.

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.

Commentary:  This decision reminds one of the importance of making sure all issues for appeal are preserved on the record.  

Issues that one wishes to take up on appeal should be repeatedly preserved during the pre-trial course of the matter and again at trial and again during the post-trial proceedings wherever possible and even if the issues were previously preserved.  Repeatedly confirm on the record, at every stage of the matter, that objections are continuing and that issues are being preserved for appeal.  

Don't worry about irking the trial court judge with repeated statements of a preservation of an issue for appeal by objection or otherwise.  Just keep going to bat for your client.

Keep in mind that trial court judges and appellate court judges will proactively look for opportunities to rule that an issue has been waived as part of their effort to avoid having to address an issue which may, in the end, require a matter to be tried all over again.

An attorney owes it to his or her client, and to herself or himself (in an effort to avoid any claims of legal malpractice), to repeatedly state on the record at every stage of the proceeding that you are preserving an objection or an issue for appeal so that there can be no finding by any judge that the issue has been waived. 

BRING YOUR CASE TO A CLOSE WITH CUMMINS MEDIATION

     BRING YOUR CASE TO A CLOSE

DANIEL E. CUMMINS, ESQ.

570-319-5899

dancummins@CumminsLaw.net

Contact CUMMINS MEDIATION SERVICES to set up your Mediation to bring your case to a close.

Who better to get an insurance company to increase their award

than the writer of Tort Talk and

an insurance defense attorney trusted by carriers to get them out of trouble?

HERE'S A SAMPLING OF JUST SOME OF THE FIRMS

WHO PREVIOUSLY SECURED SETTLEMENTS AT MEDIATIONS WITH CUMMINS MEDIATION SERVICES:

HOURIGAN, KLUGER & QUINN

LENAHAN & DEMPSEY

ABRAHAMSEN, CONABOY & ABRAHAMSEN

POWELL LAW

CEFALO & ASSOCIATES

LAW OFFICES OF JAMES D. FAMIGLIO

FOLEY LAW FIRM

NEEDLE LAW

OSTROFF GODSHALL

FISHER & FISHER

BLAKE & WALSH

CAPUTO & MARRIOTTI

HAGGERTY, HINTON & COSGROVE

SLUSSER LAW

VINSKO & ASSOCIATES

BISCONTINI LAW FIRM

MECADON LAW

LAW OFFICES OF LEO JACKSON

SOBO & SOBO

MARKS O'NEILL, O'BRIEN, DOHERTY & KELLY

RAWLE & HENDERSON

POST & SCHELL

SWARTZ CAMPBELL

BENNETT BRICKLIN & SALTZBURG

CIPRIANI & WERNER

MINTZER SAROWITZ, ZERIS, LEDVA & MEYERS

SHAY, SANTEE, KELHART & DESCHLER, LLC

McCORMICK & PRIORE

THOMAS, THOMAS & HAFER

SCANLON, HOWLEY & DOHERTY

MARGOLIS EDELSTEIN

MARSHALL DENNEHEY

ELLIOTT GREENLEAF

COLEMAN LAW OFFICES

PennDOT

SELECTIVE INSURANCE IN-HOUSE COUNSEL OFFICE

NATIONWIDE INSURANCE IN-HOUSE COUNSEL

TRAVELERS INSURANCE IN-HOUSE COUNSEL

Local Rule Adopted in Monroe County Regarding Submission of Exhibits at Hearings and Trials (Effective Today, July 1, 2025)

Here is a LINK to the new Monroe County Local Rule of Administration 5103, entitled “Custody of Exhibits. Special Provisions,” which goes into effect today, July 1, 2025.

This rule requires lawyers to put the exhibits that they intend to introduce during their hearing or trial on a USB flash drive.

The attorney presenting the exhibits will then either display the exhibit up on a screen in the courtroom, or provide paper copies of exhibits as duplicates of what is on the flash drive.

In any event, under the rule, the flash drive will be the exhibit that is introduced.

Under the rule, the presiding judge may waive the flash drive submission requirement for good cause shown.

It is noted that the rule has technical requirements for the maximum size of each file on the drive, that being 50 MB.

The rule also requires lawyers to save each exhibit as a separate file on the flash drive.

If an exhibit exceeds the 50 MB limit, it has to be split up.

The rule also requires that the flash drive have a separate file for an index of exhibits.

The rule otherwise specifies what audio, video, documents and photograph files must be used.

It has been reported that the rationale for the rule is that, on appeal, the record before the trial court will be transmitted electronically to the appellate court. Absent the use of the above procedure, any paper exhibits would have to be digitized by court staff before the record could go up on appeal, which puts a burden on the courthouse workers, especially when there is a large trial record.

It has been noted that the court is also trying to reduce paper storage in the courthouse.

Again, this rule goes into effect on July 1, 2025.

Note also that a similar local rule is already in effect in the Lackawanna County Court of Common Pleas.