Plaintiff's Claims For Tortious Interference with a Dead Body Kept Alive

In the case of McGee v. Bowser, No. 838 EDA 2023 (Pa. Super. Dec. 30, 2024 Olson, J., Sullivan, J., and Bender, J.)(Op. by Olson, J.), the Superior Court affirmed in part and reversed in part a trial court’s sustaining of Preliminary Objections in a case involving a Plaintiff’s decedent being moved from his original gravesite without consent.

According to the Opinion, the Plaintiff pled that the Defendant’s conspired to move the decedent from his original gravesite without consent or notice. The Plaintiff also alleged that the disinterment permit had been improperly granted.

Reviewing the claims before it, the appellate court ruled that the Plaintiff had indeed stated a valid claim for tortious interference with a dead body under the elements noted in the Restatement §868.

However, the court found that the Plaintiff’s intentional infliction of emotional distress claim failed. The court noted that such a claim requires that a Plaintiff be present when the tort occurred.

However, the appellate court did allow the Plaintiff’s negligent infliction of emotional distress claim brought against the cemetery for breach of fiduciary duty to proceed given that that claim did not require a contemporaneous observation.

Relative to a civil conspiracy claim asserted by the Plaintiff, the court confirmed that a civil conspiracy claim is a derivative claim and that, given that some of the Plaintiff’s other substantive claims were reinstated, the civil conspiracy claim would likewise be allowed to proceed.

On the issue of the Plaintiff’s claim for punitive damages, the appellate court noted that such damages are permitted on a lesser standard of outrageousness in cases involving the mistreatment of corpses.

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 Scott Rodgerson on www.unsplash.com.

The Dangers of Store Checkout Lines

In the case of Kovalev v. Wal-Mart, Inc., No. 2:2022-CV-1217 (E.D. Pa. Oct. 11, 2022 Quinones Alejandro, J.), the court granted a F.R.C.P. 12(b)(6)Motion to Dismiss in part and denied it in part in a premises liability case.

According to the Opinion, the Plaintiff was allegedly injured when he was standing in a checkout line and a customer behind him started hitting the Plaintiff with her shopping cart while shouting "move the line."  The Plaintiff alleged, in part, that, even though security personnel had the ability to observe the incident via real-time surveillance in a security room several feet away, no one came to the aid of the Plaintiff at the time of the incident.    

After suit was initiated, the Defendant store filed a Rule 12(b)(6) Motion to Dismiss on various grounds.

The Plaintiff's claims against Wal-Mart for assault and battery were dismissed given the lack of any facts to support any allegations that the store intentionally harmed the Plaintiff.  Nor were there any facts to support an allegation that Wal-Mart was liable for the intentional acts of another patron in the store.

The court found that the Plaintiff’s claim that the store was negligent in failing to have sufficient security to prevent its customers from assaulting other customers did state a valid cause of action.  Here, the Plaintiff alleged that he was a business invitee of the store and that the store was negligent in protecting him from the intentional or criminal acts of a third person within the store.

However, the court also found that a negligence duty to provide security within a commercial establishment does not create a special relationship that would support a separate claim for negligent infliction of emotional distress. The court noted that such relationships exist only in extremely limited circumstances.

The court dismissed the Plaintiff's separate claim for "gross negligence" after finding that there is no separate cause of action for gross negligence recognized under Pennsylvania law.  

The court additionally found that negligence per se is not an independent cause of action.

In contrast, the court in this matter additionally ruled that there is civil cause of action recognized in Pennsylvania for recklessn endangerment. 

The court also ruled that, absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act. The court also found that a negligence claim is not an intentional or criminal act that could support a separate civil conspiracy claim.

Lastly, the court also found that physical and emotional injuries do not support a cause of action under the Unfair Trade Practices & Consumer Protection Law, as that cause of action is limited to losses of money or property.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's compantion 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.

Proper Jurisdiction for Social Media Defamation Claim Reviewed

In the case of Gorman v. Shpetrik, No. 2:20-CV-04759-CMR (E.D. Pa. March 10, 2022 Rufe, J.), the court addressed jurisdiction issues, and other issues, arising out of a claim of defamation related to online post and tweets that allegedly damaged the Plaintiff’s reputation.

With regard to the jurisdiction issue, the court found that the defendant allegedly directed allegedly defamatory messages to a person within the jurisdiction, with the intent to damage the reputation of another person also in that jurisdiction.  The court found that the defendant had therefore been involved in activity expressly directed at the jurisdiction such that the exercise of personal jurisdiction was proper over the case presented.

Relative to a statute of limitations issues raised by one of the Defendants, the court noted that the limitations period began to run when defamatory material was published.

The court also noted that the Plaintiff’s lack of knowledge as to the Defendant’s identity could not support an application of the discovery rule under the facts presented in this case. 

However, the court found that the Plaintiff had sufficiently pled a claim of fraudulent concealment by alleging that the Defendant had provided false information when registering on the social media platforms on which the allegedly defamatory material was allegedly published. As such, the court allowed discovery on this issue before making a determination as to whether the doctrine of fraudulent concealment could serve to toll the statute of limitations on some of the Plaintiff’s claims in this matter.

The court additionally dismissed the Plaintiff’s claims of intentional infliction of emotional distress after finding that this claim failed because the Plaintiff had not alleged any physical injury connected to or caused by the Plaintiff’s alleged emotional distress.

The court also found that the Plaintiff’s claims for civil conspiracy failed because the Plaintiff had not alleged that all members of the purported conspiracy shared a common purpose, but rather, merely alleged that they took acts that furthered the alleged purpose of the conspiracy.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 6, 2022).

Preliminary Objections Overruled in Clergy Abuse Personal Injury Case

In the case of Patchkoski v. Diocese of Scranton, No. 2019-CV-5061 (C.P. Lacka. Co. June 12, 2020 Bisignani-Moyle, J.), the court addressed several Preliminary Objections to a personal injury Complaint arising out of claims of clergy abuse.

According to the Opinion, the Plaintiff filed the Complaint against various Defendants relative to allegations of clergy abuse within the Diocese and an “alleged cover-up” of the same by the Diocese, all of which resulted in personal injuries to the Plaintiff.

The Defendants filed various demurrers to the different claims asserted, including claims of Conspiracy, Fraud, Constructive Fraud, and for Punitive Damages. The Defendants also asserted that the Plaintiff’s claims failed due to the failure of the Plaintiff to have standing to bring the claim and due to the Plaintiff’s failure to add the Vatican as an indispensable party.

In the end, the Court denied all of the demurrers asserted and also found that the Plaintiff had standing to pursue the claim.

The Court also held that the Vatican was not an indispensable party that was required to be joined in this matter. The Court noted that, although the Plaintiff mentioned the complicity of the Vatican in the Complaint, there was no allegation that the Vatican caused the Plaintiff’s alleged injuries.

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

I send thanks to Attorney Christopher Quinn of the Kingston, PA law firm of Hourigan, Kluger & Quinn for bringing this case to my attention.

Latest Appellate Decision on Defamation-Type Claims

In the case of Meyers v. Certified Guar. Co. LLC, 2019 Pa. Super. 316 (Pa. Super. Oct. 18, 2019 Murray, J., Strassburger, J., and Pelligrini, J.) (Op. by Pellegrini, J.), the Pennsylvania Superior Court ruled that a trial court erred in dismissing a Plaintiff’s claim for defamation and related torts.

According to the Opinion, the Plaintiffs were in the profession of restoring comic books and the Defendant company graded and certified comic books for valuation purposes.

This decision is notable as providing the Pennsylvania Superior Court’s latest review on Pennsylvania law pertaining to claims such as defamation, false light, tortious interference with a contract, and civil conspiracy claims.

The decision is also notable in that Pennsylvania Superior Court held that Pennsylvania did not recognize the assumption of risk doctrine as a defense to a false light claim.

In the end, the Superior Court ruled that the trial court erred in granting summary judgment on the defamation claims presented as there was evidence of communications by the Defendant that were disclosed to third parties.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 5, 2019).

Judge Brann of Federal Middle District Issues Opinion Addressing Motions to Dismiss and/or Stay in College Hazing Case

In the case of Piazza v. Young, No. 4:19-cv-00128 (M.D. Pa. Aug. 27, 2019 Brann, J.), the court addressed various Motions to Dismiss and Motions to Stay in a civil lawsuit arising out of the fatal injuries sustained by a student at Penn State allegedly as a result of hazing activities in a fraternity.  The court granted the motions in part and denied the motions in part.  

Of note, with respect to those fraternity brothers Defendants who were under the age of 21, the court allowed the claims of the Plaintiff to proceed against those underaged Defendants under the Plaintiff’s theory of recovery to hold the Defendants liable for breaching an alleged protective duty that the Defendants, as fraternity members, allegedly owed to the Plaintiff’s son, a fraternity pledge. 

Judge Matthew W. Brann
M.D. Pa.

In this regard, Judge Brann refused to apply the Pennsylvania Supreme Court’s decision in the case of Kapres v. Heller, 640 A.2d 888 (Pa. 1994) in as an expansive manner as requested by those moving Defendants who were under the age of 21.   Under the Kapres case, the Pennsylvania Supreme Court generally ruled that individuals under the age of 21 cannot be held liable under the social host doctrine to a guest or third party injured on the premises relative to the service of  alcohol. 

The court in this Piazza case refused to read the Kapres case as immunizing the fraternity Defendants in this case from alleged liability for their otherwise allegedly wrongful conduct that involved the provision of alcohol.   See Op. at 16-18.  The court also noted that an expansive reading of the Kapres decision in the context of this case would not serve to further the social utility of the Pennsylvania statutes against hazing activities.

However, the court did otherwise note that the Plaintiff’s separate claim for negligence per se relative to the service of alcohol asserted against the fraternity Defendants who were under the age of 21 should be dismissed under the rationale of the Kapres case.  

This Opinion is also notable for the court’s review of the law pertaining to allegations of breach and causation, hazing allegations, allegations of civil conspiracy and claims of battery and intentional infliction of emotional distress.  

The court ruled that those defendants who acted to aid plaintiff after his accident can be liable under Restatement §§323, 324A for negligently failing to seek professional medical help.  However, the court found that other defendants who did not act to aid the Plaintiff could not be found to be liable for failing to render any aid as there is no cognizable duty under these facts to rescue in the first place.

Judge Brann also found that a negligence per se claim based upon an alleged violation of Pennsylvania’s anti-hazing statute is a viable claim. 

The Plaintiff’s intentional infliction of emotional distress claim was dismissed under the rationale that an alleged attempted cover up of the incident did not amount to an intent to inflict emotional distress on anyone.

The court additionally denied the Motion to Dismiss the claims of punitive damages asserted in this matter.   The court noted that it has routinely declined to dismiss punitive damages demands at the Motion to Dismiss stage of the case and prior to discovery.  

Judge Brann also addressed separate Motions to Stay filed by several Defendants who have been criminally charged arising out of the same incident.  

On this issue, the court reviewed the six (6) factors required under the case of Barker v. Kane, 49 F.Supp. 3^rd 521, 525-26 (M.D. Pa. 2016) and granted this in part and denied it in part.   Essentially, the court denied the request to stay the matter but crafted the remedy that entitles certain Defendants to exercise their right against self-incrimination.   The court noted that certain Defendants would not be required to  answer any pleadings or discovery or participate in any depositions that would implicate their Fifth Amendment Right against self-incrimination by engaging in such pleadings and discovery.  

Anyone wishing to review this decision by Judge Brann may click this LINK.