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Trial Court Denies Motion for Summary Judgment That Was Based on Traffic Controls Exception to the Political Subdivision Tort Claims Act

In the case of Haggerty v. City of Philadelphia, No. 230400850 (C.P. Phila. Co. May 27, 2026 Wright, J.), the trial court issued a Rule 1926 Opinion requesting the Superior Court to affirm the trial court’s decision denying the Defendant’s Motion for Summary Judgment under the Political Subdivision Tort Claims Act.

According to the Opinion, this matter involved an accident during which the decedent was operating a motorcycle southbound on Broad Street in Philadelphia when the tortfeasor Defendant exited a parking lot, crossed multiple lanes of traffic and attempted to reach the left-turn lanes on Broad Street and the collision occurred.

The Plaintiff filed suit against the city and the Pennsylvania Department of Transportation. Those Defendants joined in the tortfeasor driver and other Defendants.

After discovery was completed, the City of Philadelphia moved for summary judgment, arguing that the Plaintiff had failed to prove that it had notice of a dangerous traffic-control condition, failed to identify an appropriate remedial measure, and failed to show that PennDOT would accepted any proposed controls at the intersection.

Reviewing the case before it, the trial court found that the Plaintiff had produced enough evidence to create factual disputes relative to all of the arguments raised by the Defendant. The court also noted that the Plaintiff had produced expert evidence in support of the claims presented.

 The trial court asserted in its Rule 1925 Opinion that it properly denied the Defendant’s Motion for Summary Judgment in this motor vehicle accident case because the Plaintiff had produced sufficient evidence to create triable issues of fact under the traffic-control exception to the Political Subdivision Tort Claims Act.

As such, the trial court was requested the Superior Court to affirm the trial court’s denial of the city’s Motion for Summary Judgment.

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 23, 2026).

Source of image:  Photo by Trev W. Adams on www.pexels.com.

Admissibility of Crimen Falsi Evidence

Here is another example of how an appellate court decision in a criminal case may have implications in a civil litigation matter.

In the case of Com. v. Gomery, Nos. 2562 EDA 2025 & 2563 EDA 2025 (Pa. Super. Aug. 27, 2026 Bowes, J., Olson, J. and McLaughlin, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court outlined when a criminal conviction qualifies as crimen falsi under Pennsylvania Rule of Evidence 609.

Under Pennsylvania Rule of Evidence 609, evidence that a witness has been convicted of a crime involving “dishonesty or false statement” may be admitted for purposes of attacking the witness’s credibility.

In its decision in the Gomery case, the Superior Court noted that a prior conviction qualifies as crimen falsi evidence “only if dishonesty or false statement is either: (1) an essential element of the offense; or (2) facilitated its commission.”

The Superior Court further stated that, in determining whether a prior conviction meets this test, “trial courts must address both the elemental aspects of the offense and the conduct of the individual who committed the crime[.]”

In this case, the criminal defendant was charged with attacking another individual.  The victim had a prior criminal history that the defendant wanted to cross-examine on.

The prior offense at issue was the witness's failure to register as a sex offender in violation of Pennsylvania law. The court ruled that, because such an offense may be committed through omission alone and because the underlying facts in this case confirmed that the witness had only engaged in omissive conduct, the prior conviction was found not to be admissible for impeachment purposes under Rule 609.

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


Source: Pa. Super. Blog By Jon Bruno of Bruno Litigation LLC in Pittsburgh, PA (Aug. 31, 2026 blog post).


Source of image:  Photo by Shox Art on www.pexels.com.

Western Federal District Court Holds That E-Commerce Platform (Such as Amazon.com or Wal-Mart.com) Cannot Be Held Liable for Defective Products

In the case of Rimel v. Alabama Janitorial & Paper Supply, LLC, No. 23-CV-2020 (W.D. Pa. Sept. 2, 2026 Stickman, J.), the Federal Western District Court of Pennsylvania addressed the novel issue of whether an e-commerce platform like Amazon or Wal-Mart may be held liable for injuries resulting to a plaintiff from the use of products manufactured and sold by third party vendors that use the platforms to sell their products.

In its Opinion the Rimel Court noted that neither the Third Circuit nor the Pennsylvania Supreme Court had previously ever decided the extent of liability, if any, that an e-commerce platform might have in a products liability action. See Op. at p. 7-8.

In this case, the Court addressed motions for summary judgment filed by various defendants in the matter.

The Plaintiff was a United Postal Service distribution center worker who suffered severe chemical burns when she picked up a bottle of Liquid Fire, which was a drain cleaner, and which was stuck on a conveyor belt.

The bottle of drain cleaner was purchased by a customer in Virigina on Walmart.com from a third-party seller and shipped from a third-party warehouse located in Illinois.

Plaintiff filed suit in product liability and negligence. The Plaintiff's product liability claims were dismissed earlier in the case.

Discovery on the remaining negligence claims confirmed that Walmart, as the e-commerce platform, never had possession of the bottle of Liquid Fire, that it was not the seller, and that Walmart played no role in the shipment of the bottle.

The Western Federal District Court granted summary judgment to various defendants, including Wal-mart.com as the e-commerce platform defendant.

In so ruling the Rimel Court stated that “the Supreme Court of Pennsylvania has never directly addressed whether e-commerce platforms, such as Walmart or Amazon, may be liable for a plaintiff's injuries where, as here, a third-party vendor sells the goods on the website, but stores, packages and ships the products itself.” See Op. at p. 6.

After looking to other federal district courts decisions from around the country on this issue, the Court in Rimel held that Walmart had no duty to the plaintiff.

The Court more specifically stated that “[a]s a general matter, the Court holds that e-commerce platforms, like Walmart here (and Amazon [ ]), do not owe any duty of care relating to products sold by third-party vendors on their websites. See Op. at p. 11.

Rather, in this scenario, e-commerce platforms are viewed by the courts as not being a manufacturer, seller, or shipper of the product. Rather, the e-commerce platform is viewed as only being an online marketplace for third parties to conduct their business. See Op. at p. 11.

The Rimel Court otherwise also noted that "[u]nder Pennsylvania law ‘there is no duty to control the conduct of a third party to protect another from harm.’” See Op. at p. 12.

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

I send thanks to Attorneys Kenneth T. Newman and G. Richard Murphy of the Pittsburgh office of Thomas, Thomas & Hafer for bringing this case to my attention.


Source of image: Photo by Karola G on www.pexels.com.

Judge Best of Monroe County Allows Claims of Recklessness and Punitive Damages To Proceed in Commercial Vehicle Case

In the case of Maro v. Snook, No. 1805-CV-2025 (C.P. Monroe Co. June 15, 2026 Best, J.), Judge Patrick J. Best of the Monroe County Court of Common Pleas overruled a Defendant’s Preliminary Objections challenging a Plaintiff’s claims for punitive damages and challenging allegations of gross, wanton, willful, reckless, indifferent and outrageous behavior in a motor vehicle accident matter.

According to the Opinion, the Plaintiff was stopped in his vehicle in a line of traffic in a construction zone when the Defendant rear-ended the Plaintiff’s vehicle. At the time of the accident, the Defendant was operating a commercial vehicle which was a van that was owned by the company Defendants.

In his Opinion, Judge Best began his discussion by confirming that Pennsylvania is a fact-pleading state. 

The court noted that its review of the Plaintiff’s Complaint revealed at least twenty-five (25) separate acts and/or incidences of failure to act on the part of the Defendant, all of which allegedly constituted breaches of his duty of care owed to the Plaintiff relative to the rear-end accident. 

The court also noted that the Plaintiff had pled facts in support of allegations that the Defendant had violated various sections of the Pennsylvania Motor Vehicle Code including with regards to following too closely, exceeding the speed limit and driving in careless disregard for the safety of others.

Notably, the Plaintiff also alleged in this case that the Defendant was driving and operating a motor vehicle while using an interactive wireless communication device to send, read, or write a text-based communication while the vehicle was in motion in violation of provisions of the Pennsylvania Motor Vehicle Code.

The court additionally emphasized the fact that the Plaintiff had alleged that the Defendant was driving a vehicle at an excessive speed within a construction zone. 

The court noted that other courts have ruled that such conduct can be wanton and reckless where a rear-end collision results. Moreover, in this case, the allegation was that the Defendant was traveling at an excessive speed, within a construction zone, while simultaneously texting. 

The court found that such factual allegations supported the claims of recklessness and the claims for punitive damages. 

Judge Patrick J. Best
Monroe County

Judge Best stated that the “conscious action of propelling a vehicle forward, foot on case pedal with eyes down and not on the road, is particularly egregious and extends beyond mere negligence” such that facts alleged in this regard support claims of punitive damages and recklessness.

The court in this case also found the Superior Court decision in the case of Monroe v. CBH2O LP, 286 A.3d 785, 800 (Pa. Super. 2022) (en banc), in which that appellate court ruled that recklessness can be pled with reckless abandon in any case so long as the Complaint alleges a claim of negligence, as supporting the allowance of claims of recklessness in this case. Judge Best followed the trend of finding that, where negligence is alleged, recklessness may also be generally pled as a “condition of mind” under Pa. R.C.P. 1019(b).

In the end, the court overruled the Defendant’s Preliminary Objections and allowed the claims for punitive damages to proceed against the Defendant driver as well as his Defendant employers.

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 23, 2026).

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Court Addresses Requirements to Secure Class Certification

In the case McNair v. Pennsylvania-American Water Co., NO. 2024-CV-5834 (C.P. Lacka. Co. July 21, 2026 Nealon, J.), the court addressed a Motion seeking certification of a class comprised of property owners and/or residents of a lake community with respect to claims asserted against a water utility company regarding allegations of public and private nuisance related to the utility allegedly providing water containing excessive levels of manganese for several years.

The court reviewed the law of class certifications under Pa. R.C.P. 1702(2) and 1708(a)(1), and denied the Motion given that the property owners were not able to establish that common questions of law or fact predominate over the multitude of individual issues presented.

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

Source of image:  Photo by Steven A. Johnson on www.pexels.com.

ARTICLE: Pa. Rules of Civil Procedure Should be Amended to Allow for Email as a Permissible Means of Communication Across the Board

The below article of mine was recently published in the August 27, 2026 edition of the Pennsylvania Law Weekly.

Pa. Rules of Civil Procedure Should be Amended to Allow for Email as a Permissible Means of Communication Across the Board

August 27, 2026

By

Daniel E. Cummins

Would you believe, in this digital day and age, that Pennsylvania lawyers, if they so desired, can refuse to communicate via email with other lawyers in personal injury lawsuits? That such an attorney could insist that written communications between counsel be by regular mail or fax only? Sounds absurd, doesn't it?

Well, believe it or not, the Pennsylvania Rules of Civil Procedure currently allow attorneys to take such a position and some are doing so.

Generally speaking, the applicable Rules of Civil Procedure in this regard do allow for the service, or communication, of legal papers other than original process by fax machines and emails, but only where the parties have agreed to such communication methods or where an email address and/or fax number was included in the attorney’s provided contact information in an entry of appearance or on prior legal papers filed by that attorney in the matter.

It is rare, but some attorneys, having an apparent fear of technology and just to be irksome, refuse to communicate with opposing counsel via email in civil litigation matters. Instead, they insist that all written communications be made via letters sent by regular mail or by fax.

This issue may also come up in other scenarios. Some attorneys resort to utilizing the applicable rules in this regard as a vexatious weapon when they get cornered in one aspect or another in a case. For example, even after earlier communicating in a case with opposing counsel via email, the nonmoving attorney faced with a motion to compel may assert that the motion should be denied on the basis that the non-moving attorney never agreed to communicate via email. Their silly, but possibly hyper-technically correct argument then becomes that they were never properly served with the motion, or even the discovery requests at issue, because the requests were provided to them via email.

Now that we are more than a quarter of a century into the 21st century, the time has come for a change with respect to the Pennsylvania Rules of Civil Procedure regarding the service of legal documents other than the original process. These rules on the permissible methods service of legal papers have become outdated and result in inefficiency and unnecessary costs.

In a land of paperless law offices, where the overwhelming majority of lawyers and their staff, like the rest of society, use email as the preferred form of communication, the Rules of Civil Procedure should be amended to allow for the use of email as a permitted means of communication.

With email as a quick, valid alternative, the archaic requirement under the rules requiring law firms to use paper for the time-consuming and annoying process of printing out letters in order to send them by fax is just silly. Moreover, a requirement that volumes and volumes of papers be utilized to produce discovery responses, medical records, exhibits, or motions and briefs that can be easily and freely delivered electronically is needlessly time-consuming and costly. The need to buy reams of paper and pay postage to send volumes of paper enclosures when such items can be sent efficiently and free of charge via email is totally unnecessary. The time for change to the rules applicable to service of legal papers has arrived.


Applicable Rules of Civil Procedure

Under Rule of Civil Procedure 440, which is titled “Service of Legal Papers Other Than Original Process,” the service of legal papers other than original process is only by way of hand delivery, regular mail, or facsimile. Notably, that Rule does not allow for communication by way of email. As such, it appears that Pa.R.C.P. 440 has become archaic in this digital age where communications by email have become the norm in all walks of life.

Pennsylvania Rule of Civil Procedure 205.4, which covers the “Electronic Filing and Service of Legal Papers,” touches upon the issue of communications by email.

Under Pa.R.C.P. 205.4(g)(1)(ii), attorneys are allowed to serve documents, other than original process, by fax or email, but only in limited circumstances. That rule provides that email can only be used in civil litigation matters where the parties have agreed to such a communication method or where an email address has been included by the attorneys involved on their entries of appearance or in the contact information included in any prior legal paper filed by the attorneys in the action.

Rules Are Slow to Catch Up With the Times

History shows that the amendments to the Pennsylvania Rules of Civil Procedure typically take a while to catch up with the change in time of the various types of communication that have developed over the years. Take for example, the rise of communication by facsimile machines. Commentators note that the use of facsimile machines came into vogue in the early 1980s.

Yet, although the use of fax machines became common in the early 1980s, the amendments of Pennsylvania Rules of Civil Procedure regarding the service of legal papers other than original process did not allow for the use of facsimile transmission to serve such papers until approximately 1993 in the federal courts and 1998 in the Pennsylvania state courts.

The Federal Rules of Civil Procedure were amended in 1993, which was approximately 13 years after the use of fax machines to communicate became the norm.

It took even longer in the Pennsylvania state courts for the Rules of Civil Procedure to catch up. It was not until Aug 3. 1998, that a specific amendment was made to Pa. R.C.P. 440 to allow for fax communications. At the time of that amendment, service by facsimile transmission became permissible only where the attorneys agreed to utilize that form of communication or where an attorney had provided a fax number in a filed entry of appearance.

Commentators have otherwise noted that the use of email became standard business practice during the 1990s. By the late 1990s, the use of email widely replaced the use of faxes as the commonly utilized form of quick written communications.

However, it was not until several years later until 2001 that the Federal Rules of Civil Procedure were amended to allow for service by electronic means, including email, provided that the recipient gave written consent to such communications in advance.

As the technology evolved, these Federal Rules of Civil Procedure were further amended to authorize electronic service through the court’s electronic/filing system as a uniform national practice. These amendments took place on Dec. 1, 2018, which was nearly 20 years after the use of email seemed to become the norm as a form of communication in the world.

With regards to the even slower evolution of the separate Pennsylvania state Rules of Civil Procedure, those rules were amended to allow for service of papers other than original process by email only if an email address was explicitly included on a prior entry of appearance or legal paper filed in the action by the recipient attorney, or by the written agreement of the parties. As noted above, these allowances were permitted under Pa. R.C.P. 205.4(g), which went into effect on July 1, 1999.

Currently in Pennsylvania, there are only a number of county courts that utilize electronic filing. As such, there is no uniform, statewide allowance for service of legal papers other than original process through county court electronic filing systems.

In fact, some of the county court electronic systems that have been adopted do not even have a mechanism under which an electronically filed document submitted to the court is also automatically served on the parties involved in the action. This leads to uncertainty in the bar as some attorneys assume that, if a county court has electronic filing, there must also be electronic service of any documents filed on all counsel in all instances.

In the end, since it went effective over a quarter of a century ago, Pa.R.C.P. 205.4 has not been amended to allow for email to be freely utilized as a valid form of communication in all civil litigation matters in all instances.

Using the Rules as a Weapon

While almost all attorneys across the commonwealth of Pennsylvania appear to be willing and able to utilize email as a proper means of communication, believe it or not, there are still some holdouts who still inexplicably refuse to utilize email for communications with opposing counsel during the course of the litigation.

There are also other attorneys who resort to using the technicalities in the current Rules of Civil Procedure to assert, after the fact, that they have not been properly served with legal papers or communications in accordance with the Pennsylvania Rules of Civil Procedure because the document was served by email as opposed to being sent via fax or regular mail.

More specifically, such a scenario can arise when an attorney is hit with a motion to compel and is facing trouble or sanctions in light of the same. Such an attorney, in addition to having already failed to comply with the Rules of Civil Procedure in other aspects, may also resort to asserting that they were not properly served with either the discovery requests or the motion to compel at issue because it was served upon them by email.

Some attorneys making this argument do so, even though that attorney may have already otherwise previously communicated by email for every other aspect of the case. Yet, suddenly, when such attorneys are faced with the threat of a motion, all of a sudden, assert that they never agreed to accept email service of documents. They may also point out that they did not include their email address to their contact information listed in any entry of appearance or previous filing they submitted to the court.

Such hyper-technical positions do not further the proper practice of law and the rules should be changed to prevent such arguments.

Time for a Change

Given that the federal courts have a nationwide rule in place that recognizes email as a valid form of communication and a valid form of service of documents other than original process, the Pennsylvania Rules of Civil Procedure should also be amended and updated to allow for the same.

Currently, even though the use of email has become universal in both society and the legal field over the past 25 years, the current wording of the Pennsylvania Rules of Civil Procedure provides that email is a proper form of communication in civil litigation only if the parties agree to the same or if the opposing party had included their email address in their contact information in their entry of appearance or in some other filing with the court.

The Pennsylvania Rules of Civil Procedure should be amended to make it permissible, across the board, for litigating attorneys to communicate with one another via email, including with respect to the service of legal documents other than service of process. In its present form, the wording of the Rule is subject to possible abuse. Perhaps the Civil Rules Committee of the Pennsylvania Supreme Court can review this need for an update to Pa.R.C.P. 205.4 and work towards such a change.

Furthermore, now that email has become the ordinary means of communication in society, there would be no harm caused by such an amendment. Rather, such an amendment would further the interests of efficiency and the reduction of costs in civil litigation matters. It can be easily predicted that, if a survey were to be taken of the members of the Pennsylvania civil litigation Bar on the topic, there would be overwhelming support for an amendment of the rules to allow for the use of email communications as permissible and acceptable.

Last but certainly not least, an amendment to the above Rules of Civil Procedure allowing for the use of email as a valid form of communication in all aspects of civil litigation would make the rules consistent with recent changes in the Pennsylvania Rules of Professional Conduct placing an affirmative duty on all Pennsylvania attorneys to maintain their competence which includes keeping up with the use of technology in the practice of law for the benefit of their clients.

Daniel E. Cummins is the managing partner at Cummins Law in Clarks Summit, Pennsylvania. He is also the sole creator of the Tort Talk blog at www.TortTalk.com.  Contact him at dancummins@cumminslaw.net.

Reprinted with permission from the August 27, 2026 edition of the "The Pennsylvania Law Weekly © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Nursing Home Arbitration Agreement Found To Be Invalid and Unenforceable as Unconscionable

In the case of Blackshear v. Providence Operator, LLC, No. 250102454 (C.P. Phila. Co. May 28, 2026 Carpenter, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s decision overruling a Defendant’s Preliminary Objections in a professional liability action regarding a nursing home negligence case. The Defendants, through Preliminary Objections, sought to transfer this litigation to private litigation pursuant to an ADR agreement signed by the Plaintiff’s decedent when he was admitted to the nursing home.

The trial court ruled that the Arbitration Agreement allegedly signed by the Plaintiff’s decedent was invalid and unenforceable where clear and convincing evidence indicated that the resident lacked the capacity to understand and execute the agreement at the time it was signed.

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 23, 2026).

Source of image:  Photo by Caleb Oquendo on www.pexels.com.

Court Finds Venue Selection Clause in Medical Provider's Agreement Valid

In the case of McCarney v. Hahn, No. 25084681 (C.P. Phila. Co. Jan. 15, 2026 Carpenter, J.), the court issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s decision to transfer venue in this medical malpractice case out of Philadelphia and into Chester County based upon a venue selection agreement in the relevant documents existing between the parties.

The trial court noted that it had found that numerous signed medical provider venue selection agreements were valid and enforceable given that the contracts utilized unambiguous language. The court also found that the circumstances of the signing of the relevant documents did not indicate any unconscionability.

In its Opinion, the court noted that the medical provider had provided a written agreement that was clear and unambiguous. It was noted that the venue selection clause was not buried in the document or obscured. Rather, the venue selection agreement appeared in a short form and was prefaced by a bolded underlined heading that read, “Pennsylvania Patient Only-Venue Agreement.”

The court also noted that the Plaintiff had signed six (6) other agreements also containing venue provisions which were set forth in separate forms under a section entitled “Claims.”

The court rejected the Plaintiff’s argument that she had been provided inadequate notice, that there was no opt-out option, that there was allegedly a lack of mutual assent. 

The court also rejected the Plaintiff’s argument of unconscionability based upon the Plaintiff’s alleged physical and mental condition when she signed the documents, including her alleged infertility problems when she signed one agreement and including the Plaintiff being in labor when she signed one of the other agreements.

The court noted that, while the Plaintiff was in labor when she signed one of the agreements, she had previously signed five (5) identical agreements before that particular document. The court also held that the Plaintiff’s infertility struggles did not establish a legal incapacity, mutual mistake, undue influence, or unconscionability.

The trial court sustained the Defendants’ Preliminary Objections and ordered the case to be transferred to Chester County and directed the Plaintiffs to pay the cost related to the transfer. In this Rule 1925 Opinion, the trial court requested the Superior Court to affirm the trial court’s 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 (July 23, 2026).

Source of image:  Photo by Gabrielle Henderson on www.unsplashcom.

Judge Mannion of Federal Middle District Court Rules in Favor of Consolidated Discovery in Post-Koken UIM Claim

In the case of Alers v. Progressive Preferred Ins. Co., No. 3:25-CV-01371-MEM (M.D. Pa. Aug. 7, 2026 Mannion, J.), Judge Malachy E. Mannion denied a Defendant’s Motion to Sever and Stay Discovery in a post-Koken breach of contract and statutory bad faith case arising out of a motor vehicle accident.

In this case, the Defendant UIM carrier sought to sever and stay all bad faith discovery from the breach of contract claim. The Defendant carrier argued that, through the bad faith claim, the Plaintiff was seeking in discovery the production of privileged information and the carrier’s opinion work product which would prejudice the Defendant carrier in relationship to the ongoing UIM claim.

The court addressed the request for severance under F.R.C.P. 21.

Judge Malachy E. Mannion
Pa. Middle District

In reviewing the applicable factors under this analysis, Judge Mannion found that the claims raised in both the breach of contract claim and the bad faith claim were intertwined. The court also concluded that severance would not promote judicial economy. The court additionally found that there would be no prejudice to the Defendant if the Motion to Severe was denied. 

In terms of any discovery issues with regards to allegedly privileged insurance company documents, the court noted that such concerns could be addressed through incamera review of discovery materials in response to any Motion to Compel rather than through severance or bifurcation or any stay Orders, which would only serve to prolong consideration of various discovery issues.

Overall, the court found that the Defendant carrier had not met its burden in establishing that severance of the claims or stay of discovery with respect to the bad faith claim were warranted. As such, the Defendant’s Motion was denied and this Post-Koken federal court case involving UIM breach of contract and bad faith claims was allowed to proceed through discovery in a consolidated fashion.

Anyone wishing to review this case may click this LINK.


I send thanks to Attorney Jesse B. Hallinan and Attorney Thomas W. Munley of the Scranton law firm of Minora, Krowiak, Munley & Batyko for bringing this case to my attention.

This decision has been added to the Post-Koken Scorecard on the Tort Talk Blog.  The Post-Koken Scorecard is a compilation of many of the Post-Koken decisions handed down by the Pennsylvania state and federal courts since 2009.  The list does not reference all of the cases but is still a comprehensive compilation.

That Scorecard can always be freely accessed by going to www.TortTalk.com, scrolling down the right hand column of the blog to "Post-Koken Scorecard" and clicking on the date under that title.  For now, here is a quick LINK to the Post-Koken Scorecard on the Tort Talk Blog compiled by Daniel E. Cummins, Esquire.

Pennsylvania Supreme Court Addresses the Appeal Period for Appeals From Collateral Orders Where a Motion for Reconsideration Was Filed

In the case of Khalil v. Mary Jane Home Enrichment Center, Inc., No. 16 EAP 2025 (Pa. Aug. 5, 2026) (Op. by Donohue, J.), the Pennsylvania Supreme Court addressed issues relative to the time period within which an appeal may be filed from the entry of a collateral Order where a Motion for Reconsideration had been filed relative to that collateral Order.

The case arose out of a pro se dispute involving a landlord-tenant matter.

During the course of the case, pro bono counsel who had entered an appearance for the pro se tenant withdrew from the case after the completion of an Arbitration.

The tenant later challenged the withdrawal by the pro bono attorney, arguing that the attorney had not obtained leave of court to withdraw.

After a series of Motions, the trial court ultimately granted the pro bono attorney’s Motion to Withdraw as counsel. That amounted to the collateral Order at issue.

Following the entry of that collateral Order, the pro se tenant filed a Motion for Reconsideration which was denied.

The pro se litigant then filed a Notice of Appeal more than thirty (30) days after the entry of the collateral Order that had allowed the attorney to withdraw.

On appeal, the Pennsylvania Superior Court quashed the appeal as untimely. The Superior Court explained that appeals from collateral Orders must be filed within thirty (30) days of the entry of that Order.

The Superior Court also ruled that neither a Motion for Reconsideration nor an Order denying that Motion for Reconsideration tolls or resets the appeal period.

The Superior Court also noted that the Order denying the reconsideration Motion was also not appealable in this case.

Further up the appellate ladder, the Pennsylvania Supreme Court affirmed the rulings of the Superior Court.

The Pennsylvania Supreme Court agreed that a party must file a Notice of Appeal within thirty (30) days from the entry of a collateral Order in order to attempt an appeal. Otherwise, a party must wait until a final Order is entered before any appeal could be filed.

The Pennsylvania Supreme Court additionally confirmed that the filing of a Motion for Reconsideration, or an Order denying that Motion for Reconsideration, does not affect the thirty (30) day deadline within which to attempt to file an appeal from a collateral Order.

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


Source: Justia Daily Opinion Summaries (Aug. 6, 2026).

Named "LAWYER OF THE YEAR" for Insurance Law in Northeastern Pennsylvania By the BEST LAWYERS IN AMERICA Directory

 

Proud to note the notification received yesterday from The Best Lawyers in America Directory confirming that I have been named the 2027 "Lawyer of the Year" for Insurance Law in Northeastern Pennsylvania.

The Directory noted that this is a particularly meaningful distinction in that it is awarded to individual lawyers who recieved the highest overall peer feedback in a specific practice area and geographic region.

The Directory also noted that I will be recognized in the 2027 Edition of The Best Lawyers in America for my work in Insurance Law as well as in Personal Injury Litigation - Defendants.  I am additionally proud to note that this is the 16th year in a row that I have been so recognized in the Directory.

I am grateful for all of my clients who have entrusted their matters to me for handling and I thank all those fellow members of the bar and the judiciary who have pushed me to provide the best legal services possible.

Judge Nealon of Lackawanna County Reviews the Law on Wrongful Discharge Claim Under Medical Marijuana Act

In the case of Mauger v. Scranton Hospital Company, LLC, No. 2023-CV-2381 (C.P. Lacka. Co. Aug. 5, 2026 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a detailed Opinion outlining the law surrounding a cause of action for wrongful discharge as a tort claim.

This matter arose out a situation involving a hospital nurse who filed suit against his former hospital employer asserting a single cause of action for wrongful discharge.

Judge Nealon's Opinion provides a thorough review of the law regarding an employee's use of medical marijuana any impact of the need for such medication on that person's employment status. 

The Plaintiff cited to the Medical Marijuana Act, which, in part, prohibits an employer from discharging or otherwise discriminating or retaliating against an employee based upon the employee’s status as a certified medical marijuana user. The Plaintiff alleged that he was terminated by the hospital based upon a drug screen test that was positive for marijuana that was due to his prescribed use of medical marijuana.

The Plaintiff was later reinstated by the hospital following the filing of a union grievance. However, the Plaintiff subsequent resigned from his position allegedly due to the constant micromanagement and correction by a supervisor.  The Plaintiff later filed suit for wrongful discharge.

The issues in this matter came before the court on a Motion for Summary Judgment filed by the hospital.

Given the presence of various issues of fact before the court, the hospital’s Motion for Summary Judgment was denied with respect to the nurse’s wrongful discharge claim.

However, the court did grant the hospital’s Motion for Summary Judgment relative to claims of a hostile work environment, and relative to claims of constructive discharge.

The court otherwise also granted the hospital's Motion for Summary Judgment relative to the nurse’s claims for punitive damages and for counsel fees.

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

Source of image:  Photo by Budding on www.unsplash.com.

Superior Court Ruling Affects Multi-Million Dollar Jury Verdict

In the case of Newlin v. Vita Healthcare Group, No. 259 EDA 2024 (Pa. Super. Aug. 4, 2026 Olson, J., Dubow, J. & McLaughlin, J.) (Op. by Dubow, J.)(Concurring and Dissenting Op. by McLaughlin, J), the Pennsylvania Superior Court found that a new trial on damages was required in a nursing home death case. The Superior Court’s ruling did away with what remained of a nearly $20 million dollar jury verdict in favor of the Plaintiffs.

In part, the Superior Court ruled that the trial court had erred in its handling of both the $4 million dollar compensatory award and the $5 million punitive damages award.

With regards to the compensatory award, the appellate court ruled that the trial court had erred in agreeing to dismiss two Defendants from the case after the jury’s verdict. According to the Opinion, the jury had not apportioned liability to each Defendant in the verdict slip. The Superior Court noted that the trial court had erred in that the trial court had no basis to determine how much of its award that the jury had intended to apportion to the dismissed Defendant.

Relative to the punitive damages award, the Superior Court ruled, based upon its review of the record, that the Plaintiffs had failed to make a case supporting the punitive damages award.

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

The Concurring and Dissenting Opinion issued by Judge McLaughlin can be viewed at this LINK.


Source: Article – “Pa. Appeals Court Wipes Out Nearly $10M In Damages In Nursing Home Death Suit, Remands For New Trial,” By Riley Brennan of the Legal Intelligencer (Aug. 5, 2026).

Superior Court Finds That Defendant Waived Right to Arbitration by Participating in the Litigation Process

In the case of Estate of Smalling v. 2990 Holme Operating, LLC, No. 2172 EDA 2025 (Pa. Super. June 30, 2026 Lazarus, P.J., Sullivan, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the court affirmed a trial court Order finding that the Defendants had waived the contractual right to compel Arbitration in a wrongful death and survival action by failing to raise a request for Arbitration promptly.

The court also noted that the Defendants had substantially invoked the judicial process by way of participating in the litigation of a lawsuit, including through Preliminary Objections, other pleadings, participating in discovery and also participated in other case management activities before the Defendants sought Arbitration fourteen (14) months into the lawsuit.

As such, the Defendants were found to have waived their contractual right to arbitration.   

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (July 24, 2026).

Source of above image:  Photo by Felix Mittermeier on www. unsplash.com.

Superior Court Affirms Trial Court's Refusal To Open and/or Strike a Default Judgment

In the case of Davis v. Woodbury Financial Services, Inc., No. 804 WDA 2025 (Pa. Super. July 7, 2026 Nichols, J., McLaughlin, J., and Sullivan, J.) (Op. by McLaughlin, J.), the Superior Court affirmed a trial court’s denial of a Petition to Strike and/or Open a Default Judgment in a dispute over the alleged mishandling of retirement funds.

The appellate court held that service by publication pursuant to a trial court Order did not reveal a fatal defect on the face of the record such that the Defendant was not entitled to an opening of a default judgment. 

The appellate court noted that the record supported the trial court’s findings that the Defendant did not act promptly, did not provide a reasonable excuse and did not otherwise assert any additional valid arguments in support of the opening of the default judgment.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (July 24, 2026).

Source of above image:  Photo by Sasun Bughdarya on www.unsplash.com.

Appellate Court Upholds Auto Carrier's Denial of Coverage.

In the non-precedential case of Halstead v. Progressive Specialty Ins. Co., No. 430 MDA 2025 (Pa. Super. July 28, 2026 Bowes, J., Dubow, J., and Neuman, J.) (Mem. Op. by Bowes, J.), the appellate court reversed an Order of the trial court denying the insurance company’s Motion for Summary Judgment in a declaratory judgment action. The appellate court remanded the case for the entry of a declaratory judgment in favor of Progressive.

According to the Opinion, the tortfeasor was driving a motor vehicle that was insured under a policy issued by Kemper Insurance when he rear-ended a vehicle being operated by the Plaintiff and in which the Plaintiff’s wife was a passenger. The Plaintiff-wife tragically died from the injuries sustained in the incident.

Thereafter, the Plaintiff-husband sued the tortfeasor for the Plaintiff-husband’s own injuries and as the estate representative on the claims for his deceased wife.

The Defendant driver requested excess liability insurance coverage from Progressive.

However, Progressive Insurance denied the claim, contending that its policy, which was issued to the tortfeasor’s father, excluded excess coverage for the tortfeasor’s liability to the Plaintiff.

Thereafter, Kemper Insurance tendered its policy limits in settlement.

At that point in time, the tortfeasor Defendant assigned his rights under the policy to the Plaintiff, who then initiated a declaratory judgment action against Progressive seeking a judicial determination that Progressive was required to provide coverage for the claim.

At some point in the litigation, the tortfeasor Defendant died from causes not apparent from the record. The underlying negligence claim was stayed pending the determination of the declaratory judgment action addressing Progressive’s possible duty to provide coverage.

Progressive filed a Motion for Summary Judgment arguing three (3) bases for its entitlement to judgment as a matter of law. First, the carrier claimed that, given that the tortfeasor Defendant had passed way at the time the Plaintiff initiated the declaratory judgment action, it was too late for the Plaintiff to substitute his estate in the caption.

Second, Progressive maintained that the tortfeasor’s assignment of his rights to the Plaintiff was invalid because the insurance policy required Progressive’s written consent to transfer the rights and duties to another person.

Third, Progressive reiterated its claim that coverage was excluded pursuant to the terms of the policy.

The appellate court first addressed the issue of whether the appeal was properly before it. 

In this regard, the appellate court agreed with the carrier’s position that the practical effect of the trial court’s denial of the Motion for Summary Judgment had resolved the entirety of the Plaintiff’s eligibility for declaratory relief. In other words, the appellate court noted that the practical effect of the trial court’s denying Progressive’s Motion for Summary Judgment was to declare that the Plaintiff was entitled to the declaratory relief that was requested.

Given that the trial court’s ruling left no additional issues to be resolved and had the practical effect of deciding the outcome of the case rather than merely narrowing the issues, the appellate court noted that the appeal was properly before it.

On the merits, the appellate court ruled that the tortfeasor Defendant did not meet the definition of a “named insured” under the terms of the policy and the vehicle that the tortfeasor was operating did not fall under the definition of “covered vehicle” under the terms of the policy.

The court otherwise noted that, under the plain terms of the policy and an exclusion, there was no liability coverage for a loss arising from the use of a vehicle that was not listed in the declarations page and that was owned by a relative of the named insured, rather than being owned by the named insured himself, unless the loss was occasioned by the named insured’s use of the relative’s non-covered automobile, which was not the case in this matter.

The appellate court otherwise noted, taken as a whole, it was clear that the intent of the insurance policy was that, for there to be coverage for third-party liability resulting from an automobile that was owned or regularly used by a named insured or a relative of the named insured, the automobile had to be a covered auto that was listed on the declarations page, which was not the case here.

As such, the appellate court held that the trial court erred in declaring that the policy did not exclude coverage for the tortfeasor’s liability to the Plaintiff. As such, the trial court Order denying Progressive’s Motion for Summary Judgment was reversed and the case was remanded for the entry of a declaratory judgment in favor of Progressive on a holding that there was no coverage under the policy.

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

Court Sees Former Prisoner Plaintiff's Civil Rights Claims as Plausible and Allows Them to Proceed Forward

In the case of Walton v. Lackawanna County, No. 3:25-CV-02461-MEM (M.D. Pa. July 7, 2026 Mannion, J.), the court denied a municipality’s Motion to Dismiss a former prisoner Plaintiff’s civil rights claims.

According to the Opinion, the Plaintiff was pursuing §1983 civil rights claims, along with other disability claims, relative to allegations that, during a period of incarceration at the Lackawanna County Prison, the Plaintiff was prevented from securing the small plunger-like devices he allegedly required to remove his scleral contact lenses each day for his condition of keratoconus.  The Plaintiff alleged that, due to the fact that he was allegedly prevented from securing the plunger devices, he could not remove his scleral contact lenses, and suffered injuries to his eyes as a result.

After the filing of the Complaint, the municipality filed a Motion to Dismiss the Plaintiff’s various claims, including claims of municipal liability, deliberate indifference claims, and claims of liability under various disability laws.

After reviewing the record before him and applying the allegations against the standard of review, Federal Court Judge Malachy E. Mannion found that the Plaintiff had stated plausible causes of action in all respects. As such, the Defendant’s Motion was denied and the case was allowed to proceed.

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

Trial Court Rules Appeal Not Permissible From a Denial of a Motion to Recuse

In the case V.M., a minor v. Sattar, No. 2025-CV-01838 (C.P. Montg. Co. April 14, 2026 Saltz, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to find that an interlocutory appeal from an Order denying a Motion for Recusal was not permissible given that the Order at issue was neither final nor otherwise immediately appealable.

In this matter, the Defendant’s Motion for Recusal was, according to the Court, based upon the judge’s prior rulings that were adverse to the party filing the motion for recusal. The Defendant was asserting that the judge had allegedly demonstrated bias against the Defendant in that regard.

In denying the Motion for Recusal, the court further ruled that a hearing on the recusal motion was not necessary because the motion did not present any facts that, if proven, would raise questions regarding the judge’s impartiality. Rather, in this matter, the Defendant’s Motion for Recusal was primarily based on the judge’s prior adverse rulings.

In this Rule 1925 Opinion, the trial court requested the Superior Court to quash the Defendant’s appeal as improper.

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, 2026).

Source of image:  Photo by Katrin Bolovtsova on www.pexels.com.

  

Consolidation Order Vacated on Appeal

In the case of DLP Conemaugh Mem. Medical Center v. Doe, 2026 Pa. Super. 107 (Pa. Super. May 26, 2026 Stabile, J., King, J., Sullivan, J.) (Op. by Stabile, J.), the Superior Court vacated a trial court Order consolidating various actions involving alleged sexual abuse by a Defendant physician, which case involved different Defendants and different alleged assaults over a 16 year period.

The Superior Court vacated a trial court Order of consolidation after finding that there is a danger of prejudice to Defendants and a danger of confusion among the jury. The appellate court noted that, although common questions of law existed in this case, there were no common questions of fact. As such, consolidation was found not to be warranted.

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

Source: “Court Summaries” by Timothy L. Clawges in the Pennsylvania Bar News (July 6, 2026).

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

A Dead End: Paved Pathway in Park is Not a Street Under the Streets Exception to Governmental Immunity

In the case of Gabra v. Borough of Prospect Park, No. 1343 C.D. 2024 (Pa. Cmwlth. June 18, 2026 Covey, J., Tsia, J., and Leavitt, S.J.) (Op. by Covey, J.), the Pennsylvania Commonwealth Court addressed the issue of whether a pathway in a park fell within the Streets Exception to governmental immunity under the Political Subdivision Tort Claims Act.

According to the Opinion, the Plaintiffs filed a negligence Complaint after the Plaintiff’s decedent was struck and killed by a vehicle driven on a pathway in a park. According to the Opinion, the driver of the vehicle purposely drove his truck off of a roadway and into a park.  The road in question ended at a small, paved parking area and then narrowed significantly into a paved asphalt pathway leading to a pavilion and baseball fields.

It was additionally noted that the roadway had “No Outlet” and “No Parking This Side of the Street” signs in the area.

The accident occurred just after the end of the pathway and past the pavilion.

The Plaintiff’s Complaint invoked the Real Property, Utility Service, Streets, and Sidewalks Exceptions to governmental immunity afforded under the Act. Earlier in the litigation, the Real Property and Utility Service Exceptions theories of liability were stricken but the Streets and the Sidewalk theories were allowed to proceed.

On appeal, the appellate court addressed the issue of whether the paved pathway within the park could meet the definition of a street under the Streets Exception. 

In part, the court noted that the pathway was significantly narrower than the roadway that led to it. No evidence was presented by the Plaintiff that the pathway was wider than an alley or lane. 

There was additionally no evidence that the pathway afforded an exit at each end of the pathway   It was noted that the pathway ended just beyond the pavilion in the park. 

Nor was any evidence presented that the pathway was used for travel as a street or that the pathway connected one street to another.  Also, no evidence was presented by the Plaintiff to show that the pathway had been legally laid out or opened as a street.

The court otherwise noted that borough ordinances prohibited vehicular traffic in parks without permission. 

Other testimony showed that the pathway’s primary purpose was for use by employees of the borough and for short-term vehicle loading and unloading by youth clubs. As such, the court noted that the pathway was more akin to a driveway.

After a review of the facts against the applicable law, the Commonwealth Court held that, because the Plaintiffs had failed to establish that the pathway was a street, the court further held that the concrete base around the pavilion could not be deemed to be a sidewalk “within the rights-of-way of streets owned by the local agency” under 42 Pa. C.S.A. §8542(b)(7). 

Accordingly, the appellate court reversed the portions of the trial court Order denying summary judgment relative to the applicability of the Streets and Sidewalk Exceptions to governmental immunity.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (Jul 7, 2026).

Source of image:  Photo by Azgan Mjeshtri on www.unsplash.com.

PA. Supreme Court Rules That Liability Carriers Are Not Automatically Protected From Having To Provide Coverage in Sex Trafficking Cases

In the case of Samsung Fire and Marina v. R.I. Settlement Trust, No. 61 EAP 2024 (Pa. July 21, 2026) (Op. by Donohue, J.)(Wecht, J., Concurring), the Pennsylvania Supreme Court issued an opinion responding to questions presented by a way of a Petition for Certification filed by the United States Court of Appeals for the Third Circuit relative to the ability of insurance carriers to block its insured hotels from receiving from insurance coverage if they are sued over allegations that they allegedly turned a blind eye to sex trafficking activities on hotel premises.

In a unanimous decision, the Pennsylvania Supreme Court rejected efforts by insurance carriers to deny coverage in this regard. The Court held that the fact that Pennsylvania criminalizes sex trafficking activities through its criminal laws does not mean that hotels that profited from the conduct should automatically be barred from seeking insurance coverage for lawsuits that arise out of that conduct.

In so ruling, the Supreme Court reviewed the interplay between the public policy of interpreting insurance contracts broadly to favor coverage, and the policy against requiring carriers to provide coverage when the conduct at issue is so repugnant to society that the provision of insurance coverage for such acts would violate other overriding public policy.

The Court noted that, where Pennsylvania's Human Trafficking Law does not address the issues presented regarding the availability of insurance coverage, the parties should instead look to the insurance contract to resolve any cover disputes.

Accordingly, the Pennsylvania Supreme Court held that “neither an insurer’s duty to defend nor its duty to identify is abrogated on the basis of public policy when the insured is alleged to have enabled or profited from sex trafficking.”

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

Source: “Pa. Supreme Court Removes Insurance Hurdle For Sex Trafficking Survivors Seeking Coverage Stemming From Abuse," by Max Mitchell of The Legal Intelligencer (July 21, 2026).

Carrier Prevails on Declaratory Judgment Action Regarding Validity of Rejection of UIM Coverage By Insured

In the case of Huggins v. Progressive Adv. Ins. Co., No. 965 MDA 2025 (Pa. Super. June 18, 2026 Bowes, J., Dubow, J., and Neuman, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court affirmed a trial court’s dismissal of a Plaintiff’s declaratory judgment action against Progressive in which the Plaintiff had sought UIM benefits.

According to the Opinion, the Plaintiff had a single policy with Progressive Insurance which was a motorcycle insurance policy. The Plaintiff had electronically executed the policy and signed a letter rejecting UIM protection.

After the Plaintiff was involved in a motor vehicle accident while operating his motorcycle, he settled the third party claim against the tortfeasor. He then pursued a UIM claim under his motorcycle policy with Progressive. That claim was denied by Progressive based upon the fact that the Plaintiff had previously signed a letter rejecting UIM coverage.

The Plaintiff filed a declaratory judgment action, asserting an entitlement to UIM coverage. According to the Plaintiff, the rejection was invalid because the form he executed did not include the associated policy number.  The Plaintiff made this argument even though he only had one policy with Progressive.

As noted above, the trial court had ruled in favor of the insurance company. The trial court determined that there was no question that the UIM rejection form pertained to the only policy that the Plaintiff had with Progressive. The trial court found that the Plaintiff had declined UIM coverage in accordance with the provisions set forth in 75 Pa. C.S.A. §1731 of the Motor Vehicle Financial Responsibility Law. The trial court therefore granted summary judgment in favor of Progressive and dismissed the Plaintiff’s Complaint with prejudice.

As noted, on appeal, the Superior Court affirmed.

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


I send thanks to Attorney David Friedman of the King of Prussia office of Forry Ullman for bringing this case to my attention.

Source of image:  Photo by Valentin Sarte on www.pexels.com.

Trial Court Finds No Bad Faith in Carrier's Handling of Regular Use Exclusion Dispute in UIM Case

In the case of Erie Insurance Exchange v. Hallam, No. 2021-CV-7526 (C.P. Wash. Co. June 24, 2026 Lucas, J.), the court granted the carrier’s Motion for Summary Judgment on the Plaintiff’s bad faith claim relative to the regular use exclusion.

At the time of the accident, the Plaintiff was injured while in an accident while driving a salt truck for his employer.  In addition to other recoveries, the Plaintiff sought to recover UIM benefits under an Erie Insurance policy that covered one of his personal vehicles at home.

According to the Opinion, the insurance company commenced this action seeking to enforce the “regular use” exclusion found in its personal automobile insurance policy issued to the Defendant. Erie asserted that the Plaintiff had regular access to a work vehicle,i.e. a vehicle that was not covered under the Erie policy.  The Plaintiff was allegedly injured while driving that work vehicle. As such, Erie was seeking a ruling that it did not have to pay UIM benefits to the insured.

The insured argued that, at the time he made a claim for his personal UIM benefits, Erie knew that its interpretation of its “regular use” exclusion had been rejected by the Pennsylvania Superior Court. More specifically, the Plaintiff argued that, as of that time, the Superior Court had determined in the case of Rush v. Erie Insurance Exchange that Erie’s “regular use” exclusion was invalid and therefore, unenforceable.

The insured otherwise argued that, in any event, he was not regularly using the work vehicle that he was injured in. Rather, he asserted that the use of the work vehicle was incidental. 

As such, the insured asserted a breach of contract a statutory bad faith claim against the carrier in a counterclaim. In response, Erie filed a summary judgment motion.

Erie argued that, further up the appellate ladder, the Pennsylvania Supreme Court had more recently ruled in Rush v. Erie Insurance Exchange that the regular use exclusion was still valid in at least certain circumstances, which circumstances applied in this case.

Erie argued that there can be no bad faith where the carrier correctly applies a policy exclusion.  Erie asserted that, despite conflicting decisions in recent years on the validity of the regular use exclusion, Erie argued that it had reasonably relied upon existing legal precedent on the regular use exclusion to deny UIM benefits to the insured.

The Plaintiff countered by arguing that, at the time Erie denied coverage, the law was that the exclusion was “invalid.” The Plaintiff asserts that Erie had no good faith basis to disregard the Superior Court’s ruling and to deny coverage when it did so in this matter.

In this decision, the trial court noted that, in order to show bad faith on the part of an insurance company, an insured must show that the carrier breached its duty of good faith through some motive of self-interest or ill-will. The court also noted that bad faith must be shown by clear and convincing evidence. The insured must additionally show that the carrier did not have a reasonable basis for denying benefits under the policy, and that the carrier knew or recklessly disregarded its lack of a reasonable basis in denying the claim.

The trial court in this case noted that the carrier had remained in regular communication with the insured regarding the status of the claim. It was also noted that the carrier had informed the insured’s attorney that Erie was requesting a reconsideration of the Rush decision. In light of this, Erie requested that no further action be taken until a decision was made on that request by the appellate courts.

The court also noted that the insured in this case did not go so far as to argue that Erie lacked a bona fide belief that it had a good chance of ultimately succeeding in having the Pennsylvania Supreme Court declare that the “regular use” exclusion was valid under Pennsylvania law.

The court emphasized that, in this case, the insured did not offer any evidence to demonstrate that Erie’s manner in handling the claim was anything other than an attempt to enforce a written exclusion in the contract. 

The court went on to find that, where an insurer has no duty to provide coverage, there can be no bad faith. 

Here, the insured argued that Erie failed to take enough steps to limit the enforceability of the Superior Court decision in Rush while the Supreme Court of Pennsylvania considered whether or not to accept the case for review and then decide the case.  In essence, the insured argued that Erie should have paid him UIM benefits even though Erie had otherwise appealed the Superior Court decision in Rush to the Pennsylvania Supreme Court.

The trial court in this matter found that this fact, alone, did not amount to potentially clear and convincing evidence of a dishonest purpose, a lack of a reasonable basis to deny benefits, or a knowing or reckless disregard of a reasonable basis to deny coverage on the part of the carrier.

The trial court also noted that the Pennsylvania Supreme Court decision in Rush made clear that the Superior Court decision in Rush deviated from well-established precedent that had continually upheld the validity of the regular use exclusion.

Accordingly, the trial court in this case found that the insured did not produce evidence to establish any bad faith on the part of the carrier. As such, Erie’s Motion for Summary Judgment was granted and the Plaintiff’s bad faith clam was dismissed.

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


I send thanks to Attorney Joseph Hudock of the Pittsburgh office of the law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this interesting case to my attention.

Source of image:  Photo by Jay Brand at www.pexels.com.

Trial Court Requests Affirmance of its Order Transferring Venue of a Nursing Home Negligence Case Out of Philadelphia and to Delaware County

In the case of Bennett v. Providence Operator, LLC, No. June Term, 2024, No. 240603252 (C.P. Phila. Co. March 4, 2026 Cohen, J.), the trial court judge issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s finding that venue was improper in this nursing home malpractice case filed in Philadelphia County. The trial court had transferred the case to Delaware County after finding that all relevant conduct occurred at the Defendant’s facility that was located in Delaware County. The court noted that the Defendant only had incidental marketing contacts with Philadelphia County.

As such, the trial court had granted the Defendant’s Preliminary Objections as to improper venue.

The court otherwise emphasized that advertising and solicitation do not constitute conducting business. 

The court additionally noted that any revenue generated from Philadelphia residents at the Defendant’s facility was incidental to the care provided in Delaware County.

The trial court additionally rejected the argument that venue was proper in Philadelphia County given that the pre-admission assessment was conducted while the Plaintiff’s decedent was hospitalized in Philadelphia. The court rejected the argument that this constituted a transaction giving rise to the cause of action. 

Rather, the court found that the claims instead of arose from the care provided at the Defendant’s facility and not from the admission decision itself. In this case, the claims of injury were with respect to a fall down event that the Plaintiff decedent allegedly had at the facility in Delaware County.

As such, the trial court found that all relevant transactions and occurrences took place in Delaware County, where the alleged negligence occurred. 

Accordingly, the trial court urged the Superior Court to affirm the trial court’s finding that venue in Philadelphia County was improper and that the Order transferring the case to Delaware County should be affirmed.

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, 2026).