THE 2025 TORT TALK TOP 10
10. “Farcical” Fad of Allegations of Recklessness Continues
Despite the well-settled law since the Pennsylvania Rules of Civil Procedure first went into effect 78 years ago on January 1, 1947 establishing that Pennsylvania is a fact-pleading state when it comes to pleadings, the trial courts of Pennsylvania have continued to allow plaintiffs to plead recklessness in every case regardless of the facts. Click this LINK to see the many recent Tort Talk blog posts on this topic.
These trial court rulings allowing such pleading are based on a reading of Pa.R.C.P. 1019(b) as found in the errant Pennsylvania Superior Court decision in the case of Monroe v. CB H20 LP, 286 A.3d 785 (Pa. Super. 2022) (en banc). Judge Victor P. Stabile noted in his Dissenting Opinion in that case that the Majority’s decision was based on “farcical” reasoning. Monroe, 286 A.3d at 830 (Dissenting Opinion).This ‘farcical’ fad of allowing plaintiffs to plead recklessness with reckless abandon regardless of the facts of the case continued in 2025 in the Pennsylvania state courts.
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 over the past year ruled to the contrary. In McKinney v. GM, LLC, No. 1:24-CV-00140-SPB (W.D. Pa. Aug. 28, 2025), Judge Susan Paradise Baxter of the Western District Federal Court 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 well established rule of law in Pennsylvania that allegations of recklessness that could support a punitive damages claim must involve more than claims of ordinary negligence.
The Tort Talk blog post on the McKinney case can be viewed HERE.
9. Nearly 200 Year Old Gist of the Action Doctrine Ruled Invalid
The gist of the action doctrine generally holds that an injured party can not plead both a negligence cause of action and a breach of contract cause of action in the same lawsuit. The purpose of the doctrine was to maintain the difference between the two theories of liability in civil litigation matters.
In the case of Swatt v. Nottingham Village, 324 A.3d 23 (Pa. Super. July 2, 2025) (en banc) (Op. by Kunselman, J.), an en banc panel of the Pennsylvania Superior Court boldly ruled that the gist of the action doctrine, which has been essentially recognized in English and American jurisprudence for over 200 years, was no longer valid.
The Tort Talk blog post on the Swatt case can be viewed at this LINK.
The court essentially ruled in Swatt that the law has always recognized an injured parties right to choose and pursue either theory of liability, that is, a negligence theory of liability or a breach of contract theory, and that, under the Pennsylvania Rules of Civil Procedure, injured parties are permitted to plead their theories of liability in the alternative under a single personal injury Complaint.
The Superior Court’s decision in Swatt, which was handed down in July of this year, was followed by another Superior Court panel in a December 11, 2025 decision in the case of Poteat v. Asteak, ___ A.3d ___, 729 EDA 2023 (Pa. Super. 2025). The Tort Talk post on this case can be reviewed HERE.
Keep an eye out in 2026 for an upcoming article on this topic written by myself and my son, Daniel E. Cummins, Jr., a second year student at Virginia Law School, to be published this upcoming spring in the Pennsylvania Bar Association Quarterly.
8. Test to Show Good Cause for IME
In Verba v. Erie Insurance Exchange, 326 A.3d 973 (Pa. Super. 2024 ), the Pennsylvania Superior Court held that the requirement of good cause set forth in Rule 4010 regarding requests for medical examinations (IMEs) in civil litigation matters 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.
The court in Verba ruled that good cause can exist to support a request for an IME in a pending litigation if there is a controversy, or a dispute between the parties, regarding the validity of the plaintiff’s injury claims.
The Tort Talk post on the Verba can be viewed HERE.
7. New Jury Selection Rule Goes Into Effect
On April 1, 2025, the new Pa.R.C.P 220.3 went into effect requiring trial court judges to be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement.
6. Archaic Local Rules Overruled
In the case of Scheibe v. Woodloch Resort, No. 1478 EDA 2024 (Pa. Super. May 20, 2025), Superior Court issued a decision that invalidated the archaic local rule of the Pike County Court of Common Pleas that required original signatures on all filings with the Court. As such, going forward electronic signatures may be utilized on documents being filed in Pike County.
The Tort Talk blog post on the Scheibe case can be viewed at this LINK.
Over this past year, the Superior Court struck down another archaic local rule in its decision in the case of Biros v. U Lock, Inc., No. 113 WDA 2024 (Pa. Super. Aug. 1, 2025). In Biros, 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.
The Tort Talk blog post on the Biros case can be viewed HERE.
5. Arbitration Clauses and Children
In the case of Shultz v. Skyzone, No. 25 EAP 2023 (Pa. Sept. 25, 2025) (Op. by Donohue, J.), a case that involved the claims brought on behalf of several minors who were injured at trampoline parks operated by Skyzone, the Pennsylvania Supreme Court held that a parent who signs an Arbitration Agreement cannot bind a non-signing spouse or a minor child to the terms of that agreement.
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, the Pennsylvania Supreme Court also held that a parent who signs an Arbitration Agreement cannot bind a non-signing parent, or minor child, to its terms.
The Tort Talk blog post on this Pennsylvania Supreme Court case can be viewed HERE.
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.).
4. Statutory Employer Doctrine Upheld
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.
The Supreme Court reaffirmed 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 Co., 153 A. 424, 426 (Pa. 1930).
That long-standing law provides that, under Section 203 of the Workers’ Compensation Act (Act), 77 P.S. § 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. § 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.
In this Yoder case, the Pennsylvania Supreme Court rejected arguments by the Plaintiff that the statutory employer doctrine should be rejected and/or that the immunity afforded to employers under the doctrine should be deemed to be waivable in certain circumstances.
The Tort Talk blog post on the Yoder case can be viewed HERE.
3. New Cell Phone Law
While texting while driving has been banned in Pennsylvania since 2012, in June of this year, a new law went into effect on June 5, 2025 that banned any and all cell phone use while driving on the roads of Pennsylvania. Under certain exceptions noted in the law, a driver may use a cell phone 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 cell phone 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 the cell phone in your hand while driving.
For the next year through June of 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.
2. Doctrine of Forum Non Conveniens Clarified
Over the past 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, Inc., No. 32 EAP 2024 (Pa. Sept. 25, 2025) (Op. by Wecht, J.).
The Supreme Court of Pennsylvania 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.
The Tort Talk blog post on this notable Pennsylvania Supreme Court decision can be viewed HERE.
1. 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 its “Interim Policy On The Use Of Generative Artificial Intelligence By Judicial Officers And Court Personnel." This policy is designed to serve as an interim policy to guide judges and court personnel who desire to use artificial intelligence (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.
As noted in the August 14, 2025 Pennsylvania Law Weekly article entitled “AI and Its Proper Use in the Practice of Law” by Daniel E. Cummins and Ursinus College Computer Science major, 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.
The “AI Hallucinations Cases Database” maintained by Damien Charlotin, an attorney in France, confirms that attorneys all over the world have been getting in trouble for filing motions and briefs with courts that contain fake, AI generated citations and information. According to that database, which can be viewed at this LINK, as of December of 2025, there were at least four (4) reported decisions handed down in Pennsylvania in which attorneys were in trouble in this regard.
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 state courts.
In the Pennsylvania federal courts, Judge Karoline Mehalchick of the Federal Middle District Court 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.
New Book To Consider Purchasing To Improve Your Practice of Law
The gist of the action doctrine generally holds that an injured party can not plead both a negligence cause of action and a breach of contract cause of action in the same lawsuit. The purpose of the doctrine was to maintain the difference between the two theories of liability in civil litigation matters.
In the case of Swatt v. Nottingham Village, 324 A.3d 23 (Pa. Super. July 2, 2025) (en banc) (Op. by Kunselman, J.), an en banc panel of the Pennsylvania Superior Court boldly ruled that the gist of the action doctrine, which has been essentially recognized in English and American jurisprudence for over 200 years, was no longer valid.
The Tort Talk blog post on the Swatt case can be viewed at this LINK.
The court essentially ruled in Swatt that the law has always recognized an injured parties right to choose and pursue either theory of liability, that is, a negligence theory of liability or a breach of contract theory, and that, under the Pennsylvania Rules of Civil Procedure, injured parties are permitted to plead their theories of liability in the alternative under a single personal injury Complaint.
The Superior Court’s decision in Swatt, which was handed down in July of this year, was followed by another Superior Court panel in a December 11, 2025 decision in the case of Poteat v. Asteak, ___ A.3d ___, 729 EDA 2023 (Pa. Super. 2025). The Tort Talk post on this case can be reviewed HERE.
Keep an eye out in 2026 for an upcoming article on this topic written by myself and my son, Daniel E. Cummins, Jr., a second year student at Virginia Law School, to be published this upcoming spring in the Pennsylvania Bar Association Quarterly.
8. Test to Show Good Cause for IME
In Verba v. Erie Insurance Exchange, 326 A.3d 973 (Pa. Super. 2024 ), the Pennsylvania Superior Court held that the requirement of good cause set forth in Rule 4010 regarding requests for medical examinations (IMEs) in civil litigation matters 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.
The court in Verba ruled that good cause can exist to support a request for an IME in a pending litigation if there is a controversy, or a dispute between the parties, regarding the validity of the plaintiff’s injury claims.
The Tort Talk post on the Verba can be viewed HERE.
7. New Jury Selection Rule Goes Into Effect
On April 1, 2025, the new Pa.R.C.P 220.3 went into effect requiring trial court judges to be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement.
6. Archaic Local Rules Overruled
In the case of Scheibe v. Woodloch Resort, No. 1478 EDA 2024 (Pa. Super. May 20, 2025), Superior Court issued a decision that invalidated the archaic local rule of the Pike County Court of Common Pleas that required original signatures on all filings with the Court. As such, going forward electronic signatures may be utilized on documents being filed in Pike County.
The Tort Talk blog post on the Scheibe case can be viewed at this LINK.
Over this past year, the Superior Court struck down another archaic local rule in its decision in the case of Biros v. U Lock, Inc., No. 113 WDA 2024 (Pa. Super. Aug. 1, 2025). In Biros, 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.
The Tort Talk blog post on the Biros case can be viewed HERE.
5. Arbitration Clauses and Children
In the case of Shultz v. Skyzone, No. 25 EAP 2023 (Pa. Sept. 25, 2025) (Op. by Donohue, J.), a case that involved the claims brought on behalf of several minors who were injured at trampoline parks operated by Skyzone, the Pennsylvania Supreme Court held that a parent who signs an Arbitration Agreement cannot bind a non-signing spouse or a minor child to the terms of that agreement.
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, the Pennsylvania Supreme Court also held that a parent who signs an Arbitration Agreement cannot bind a non-signing parent, or minor child, to its terms.
The Tort Talk blog post on this Pennsylvania Supreme Court case can be viewed HERE.
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.).
4. Statutory Employer Doctrine Upheld
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.
The Supreme Court reaffirmed 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 Co., 153 A. 424, 426 (Pa. 1930).
That long-standing law provides that, under Section 203 of the Workers’ Compensation Act (Act), 77 P.S. § 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. § 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.
In this Yoder case, the Pennsylvania Supreme Court rejected arguments by the Plaintiff that the statutory employer doctrine should be rejected and/or that the immunity afforded to employers under the doctrine should be deemed to be waivable in certain circumstances.
The Tort Talk blog post on the Yoder case can be viewed HERE.
3. New Cell Phone Law
While texting while driving has been banned in Pennsylvania since 2012, in June of this year, a new law went into effect on June 5, 2025 that banned any and all cell phone use while driving on the roads of Pennsylvania. Under certain exceptions noted in the law, a driver may use a cell phone 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 cell phone 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 the cell phone in your hand while driving.
For the next year through June of 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.
2. Doctrine of Forum Non Conveniens Clarified
Over the past 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, Inc., No. 32 EAP 2024 (Pa. Sept. 25, 2025) (Op. by Wecht, J.).
The Supreme Court of Pennsylvania 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.
The Tort Talk blog post on this notable Pennsylvania Supreme Court decision can be viewed HERE.
1. 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 its “Interim Policy On The Use Of Generative Artificial Intelligence By Judicial Officers And Court Personnel." This policy is designed to serve as an interim policy to guide judges and court personnel who desire to use artificial intelligence (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.
As noted in the August 14, 2025 Pennsylvania Law Weekly article entitled “AI and Its Proper Use in the Practice of Law” by Daniel E. Cummins and Ursinus College Computer Science major, 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.
The “AI Hallucinations Cases Database” maintained by Damien Charlotin, an attorney in France, confirms that attorneys all over the world have been getting in trouble for filing motions and briefs with courts that contain fake, AI generated citations and information. According to that database, which can be viewed at this LINK, as of December of 2025, there were at least four (4) reported decisions handed down in Pennsylvania in which attorneys were in trouble in this regard.
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 state courts.
In the Pennsylvania federal courts, Judge Karoline Mehalchick of the Federal Middle District Court 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.
New Book To Consider Purchasing To Improve Your Practice of Law
Last but not least, it is noted that, over the past year, the Pennsylvania Bar Institute (PBI) published an e-book entitled Raising the Bar: A Practical Guide to the Practice of Law written by Daniel E. Cummins.
The book compiles articles written by the author over the past 25 years providing practice and professionalism tips for lawyers and judges.. 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.
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