Federal Court Rejects Complaint Containing Shotgun Pleading Against All Defendants

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

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

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

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

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

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

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


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

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

Superior Court Addresses Applicability of Immunity Afforded To Third Party Defendants In Work Injury Cases

In the case of Brown v. Gaydos, No. 1132 WDA 2021 (Pa. Super. Dec. 7, 2023 en banc) (Op. by McCaffery, J.)(Stabile, J., Dissenting), the Pennsylvania Superior Court addressed issues regarding whether or not a Defendant was statutorily immune from liability under Pennsylvania’s Workers’ Compensation Act as the Plaintiff’s employer or co-employee under the facts presented.

According to the Opinion, the Plaintiff sued the Defendant individual for injuries that the Plaintiff sustained while operating a skid loader that the Defendant owned.

At the time of the accident, the Plaintiff was an employee of a company which the Defendant partly owned.

According to the Opinion, the Plaintiff had previously made a successful claim for workers’ compensation from the company that both men worked for at the time of the incident. The Plaintiff then filed a civil lawsuit alleging that the individual Defendant failed to properly maintain the skid loader or train the Plaintiff on how to use the device.

The Defendant filed a Motion for Summary Judgment alleging that he was immune to the personal injury lawsuit under the Workers’ Compensation Act because he was the Plaintiff’s co-employee at the same company.

The court noted that, under the Workers’ Compensation Act, employees who received workers’ compensation benefit generally may not sue their employers or co-employees for work-related injuries. Relative to protections afforded to co-employees, a co-employee may secure immunity for negligent actions that caused a Plaintiff’s injuries while the co-employee and the Plaintiff were “in the same employ.”

In this case, the Plaintiff argued that he was suing the Defendant in his capacity as the owner of the skid loader, not as a co-employee and, therefore, the Defendant was not immune from suit.

The majority of the Superior Court ruled in this matter that there were genuine issues of material facts regarding the ownership and the use of the skid loader. The majority ruled that the Plaintiff’s claim with respect to the co-employee immunity issue hinged on whether or not the Plaintiff had been working in the course of his duties as an employee of the employer company at the time of the accident.

Anyone wishing to review a copy of this decision may click this LINK.  Judge Stabile's Dissenting Opinion can be viewed HERE.


Source: Article - “Workers’ Comp Immunity May Not Shield Construction Company Owner From Job Site Injury Suit, Appeals Court Rules” by Aleza Furman of Pennsylvania Law Weekly (Dec. 8, 2023).

Source of image:  Photo by Silvia Brazzoduro on www.unsplash.com.

Pennsylvania Supreme Court Upholds Immunity of an Employer Where Plaintiff Claims Covered By Worker's Compensation

In the case of Franczyk v. Home Depot, Inc., No. 11 WAP 2022 (Pa. April 19, 2023) (Op. by Wecht, J.) (Todd, C.J, concurring), the court addressed immunity provided to employers in personal injury civil litigation matters given the employer’s exposure to worker’s compensation recoveries.

The Pennsylvania Supreme Court confirmed that the worker’s compensation system is a compromise that, in exchange for a no-fault insurance system, employers are granted immunity from tort liability for workplace injuries.

The court reiterated that, where worker’s compensation is available, such compensation is the exclusive remedy for an injured party against their employer.

The worker’s compensation statute precludes virtually any sort of negligence claim against the employer “on account” a physical injury that occurs in a workplace.

In this matter, the court found that a Plaintiff could not sue his employer for allegedly failing to investigate a dog bite that occurred at the place of employment and thereby obstructing the Plaintiff’s ability to bring a claim against the customer who owned the dog.

The court found that the plain language of the exclusivity clause under the Worker’s Compensation Act barred this action.  None of the exceptions were found to apply.

The court otherwise noted that employers have no general duty to protect and preserve the interests of their employees relative to a possible personal injury action.

Given that the Plaintiff in this matter was seeking a recovery of the same damages from the same injury that occurred in a workplace, the claim was found to be precluded from the Worker’s Compensation Act.

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


I send thanks to Attorney James M. Beck of the Reed Smith law firm in Philadelphia for bringing this case to my attention.

Defendant Township Found Not to Be a Joint Tortfeasor With Co-Defendant Given Township's Immunity from Suit

In the case of Owens v. Huffman, No. 10612 of 2021, C.A. (C.P. Lawr. Co. July 8, 2022 Motto, P.J.), the court ruled that a Defendant Township was not a joint tortfeasor with its Co-Defendants in this lawsuit involving alleged property damages related to septic system issues.

The Court ruled that the Township was not a joint tortfeasor with the Co-Defendants due to the Township’s standing as a governmental agency and concomitant immunity.

As such, the court ruled that the Co-Defendants could not recover on or pursue a claim of indemnity or contribution from the Township. In light of this ruling, the courts sustained a Defendant Townships Preliminary Objections in this case involving damages claims arising out of issues with a septic system on the property involved.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 30, 2022).

Personal Injury Claim By Family Claiming Worker Died From COVID-19 Virus Contracted At Work Dismissed Under Worker's Compensation Act

In the case of Barker v. Tyson Foods, Inc., No. 21-223 (E.D. Pa. Dec. 6, 2021 Diamond, J.), the court ruled that a claim that an employer willfully or wantonly exposed its employees to the COVID-19 virus was insufficient to overcome the exclusivity provisions of the Worker’s Compensation Act.  As such, the Defendant’s Motion to Dismiss was granted.

In this matter, the Plaintiff’s decedent passed away allegedly due to complications from the COVID-19 virus.

The Plaintiff alleged that the decedent’s employer caused the decedent’s wrongful death by failing to implement any safety measures after the outbreak of the COVID-19 pandemic. The Plaintiff also asserted that the Defendant allegedly maintained a work-while-sick policy.

The federal court granted the Defendant’s Motion to Dismiss after finding, in part, that the Plaintiff’s claims were barred by the Pennsylvania Worker’s Compensation Act.

The court more specifically held that willful or wanton disregard for employee safety was insufficient to overcome the exclusivity provisions of the Act.

Instead, the court noted that an employee could fall outside of the Worker’s Compensation Act only upon a showing that an employer’s fraudulent misrepresentation caused an aggravation of a pre-existing injury. In this case, the court found that the Plaintiff’s allegations did not amount to any showing that any alleged wrongful conduct on the part of the employer caused any aggravation of any pre-existing conditions of the Plaintiff’s decedent.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 21, 2021).

Denial of Defense of Sovereign Immunity Immediately Appealable

In the case of Brooks v. Ewing Cole, Inc., No. 4 EAP 2021 (Pa. Sept. 22, 2021)(Op. by Mundy, J,), the Pennsylvania Supreme Court ruled that a claim of sovereign immunity was immediately appealable under the collateral order doctrine given that sovereign immunity was a complete production from suit, not just liability for damages.   

The court noted that the benefit of the immunity provided to a government agency would be irreparably lost if that entity were forced to litigate all the way through to a final judgment and then seek appellate review on its immunity claim.   

As such, the Pennsylvania Supreme Court ruled that a trial court order denying summary judgment on the issue of sovereign immunity was immediately appealable as a collateral Order.

Anyone wishing to review this decision may click this LINK.

Source: "Digests of Recent Opinions." Pennsylvania Law Weekly (Oct. 19, 2021).

Borrowed Servant Doctrine Applied to Support Entry of Summary Judgment in Favor of Employer

In the case of Solomon v. FedEx Supply Chain, Inc., No. 1:17-CV-02385 (M.D. Pa. Jan. 14, 2020 Rambo, J), Judge Sylvia H. Rambo addressed the current status of Pennsylvania law on the borrowed servant doctrine.

According to the Opinion, this personal injury case arose out of a forklift accident that occurred within the scope of the Plaintiff’s employment.

At the time of the accident, the Plaintiff was a contractual employee for an employment agency and was assigned to work as a forklift operator and order picker at a FedEx Distribution Center.

Under the contract between the temporary employment agency and FedEx, FedEx was responsible for, among other things, training, supervising, and instructing staffing personnel, as well as for maintaining a safe workplace. The contract also provided that FedEx retained direction and control over the staffing personnel as it determined in its sole discretion to be appropriate, including the right to accept, reject, and remove staffing personnel.

Under the agreement, the employment agency was solely responsible for selecting, hiring, disciplining, reviewing, evaluating, and terminating personnel, as well as for paying the worker’s wages and maintaining the benefits.

The Plaintiff was injured on his first day of work at the FedEx Distribution Center after undergoing training in the morning and being assigned to shadow another FedEx employee. During that first day of work, the Plaintiff was operating a standup forklift when he collided with a parked forklift and allegedly sustained injuries as a result.

The Plaintiff sued FedEx following this incident.

FedEx eventually filed a Motion for Summary Judgment requesting the dismissal of the Plaintiff’s claims for negligence on the basis that FedEx was Solomon’s statutory employer and was therefore immune from suit under the Pennsylvania Workers’ Compensation Act.

The court noted that, generally speaking, employees who are injured at work are limited to compensation available to them under the Workers’ Compensation Act and cannot separately sue their employers for personal injury.

The court noted that this immunity provided by the Workers’ Compensation Act extends from the direct employer as well as to other entities that may have “borrowed” the employee and if the latter exercises sufficient control over the employee.

Under the borrowed servant doctrine, the “crucial test” in determining whether a worker furnished by one person to another becomes the employee of the person to whom he is loaned is whether the worker passes under the latter’s right of control with regards not only to the work to be done but also to the manner of performing it.

A borrowed employee in this regard is considered to a statutory employee and the borrowing employer is considered to a statutory employer.

The court noted that, if there are issues of fact on the issue of whether a defendant is a statutory employer, the question is usually one to be decided by a jury.   However, where the material facts are not in dispute the question can be properly the subject of a Motion for Summary Judgment.

After applying the law to the facts before her, Judge Rambo concluded that FedEx was the Plaintiff’s statutory employer pursuant to the borrowed servant doctrine. Accordingly, the court found that FedEx was entitled to immunity under the Pennsylvania Workers’ Compensation Act to any personal injury suit. As such, FedEx’s Motion for Summary Judgment was granted.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Richard B. Wickersham, Jr., of the Philadelphia office of Post & Schell, P.C. for bringing this case to my attention.

Issues of Fact Stall Decision on Whether Defendant Employer Protected by Worker's Compensation Immunity Provisions

In the case of Ravier v. Gearhart, No. 6676-CV-2017 (C.P. Monroe Co. Nov. 1, 2019 Williamson, J.), the court denied a Motion for Judgment on the Pleadings filed by Additional Defendants in a personal injury action involving a workplace accident.

The Plaintiff filed suit against various Defendants who had joined certain Additional Defendants. The Additional Defendants filed a Motion for Judgment on the Pleadings asserting that they were immune from suit in this personal injury action under the Workers’ Compensation Act as the Plaintiff’s employer at the time of the accident.

The court denied the motion based upon their being issues of fact and uncertainty as to which entity was the Plaintiff’s employer at the time of her accident. The court noted that additional discovery was necessary before it could rule on the Additional Defendants’ claims of immunity.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 26, 2019).

Pennsylvania Superior Court Applies Intricacies of Limited Immunity Provision of the Mental Health Procedures Act in a Med Mal Case

In the case of Dean v. Bowling Green-Brandywine, No. 963 MDA 2017 (Pa. Super. July 2, 2018 Gantman, P.J., Panella, J., and Dubow, J.)(Op. by Panella, J.), the Pennsylvania Superior Court addressed the issue of whether a trial court properly entered a nonsuit against the Plaintiff under an application of the limited immunity provision of the Mental Health Procedures Act (MHPA).

Ultimately, the Superior Court affirmed the entry of the nonsuit in favor of some Defendants but not others in the matter.

The court noted that the limited immunity provision of the Act is intended to limit the criminal and civil liability of those charged with treating the mentally ill.  Under the Act, those engaged in treating mentally ill individuals "under the act" cannot be held liable absent "willful misconduct or gross negligence."

The court generally noted that the Act applies to the "voluntary inpatient treatment of mentally ill persons."  Prior to this decision, the term "mentally ill persons" had not been defined by the Act or case law.

According to the Opinion, the case involved a twenty-three year old individual who voluntarily applied to a treatment facility to address his addiction to pain medications he had been taking as prescribed for injuries following an ATV accident.  Less than ten days after his admission, the individual was found unresponsive on the floor of his room in the treatment center.  He subsequently passed away.

Thereafter, a medical malpractice suit was filed against several Defendants, some of whom pled the limited immunity provision of the MHPA as a defense.  During the course of trial, the remaining Defendants requested, and were granted, permission to add that defense to their pleadings.

At the close of the Plaintiff's case, the trial court granted a nonsuit in favor of all of the Defendants, finding that the Plaintiff had failed to show evidence of willful misconduct or gross negligence on the part of the Defendants and that, as such, the Defendants were entitled to the protections of the limited immunity provision.

In its Opinion, the Superior Court affirmed that the limited immunity provision was an affirmative defense ("immunity from suit") that has to be pled as an affirmative defense in a defendant's pleadings.

The appellate court reviewed the entry of the nonsuit with regards to each specific Defendant, finding that some Defendants were indeed entitled to a nonsuit, and others were not.  A critical question in this case was whether the treatment of the decedent's addiction amounted to a treatment of a mental illness with respect to each particular Defendant.

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

I sent thanks to Attorney Cynthia L. Brennan of the Berwyn, PA law office of Post & Post for bringing this case to my attention.

Scope of Employer's Liability Exclusion in Commercial General Liability Policy Narrowed by PA Supreme Court

The Pennsylvania Supreme Court recently issued a notable decision in the case of Mutual Benefit Ins. Co. v. Politsopoulos, 60 MAP 2014 (Pa. May 26, 2015) in which the Court essentially eviscerated the scope of the employer's liability exclusion found in most commercial general liability insurance policies as applied to additional insureds.

The decision applies to the following typical fact scenario:  Company A owns a property and leases it to Company B to run a store on the premises.  The lease requires Company B--the store--to add Company A--the owner--as an additional insured under the store's commercial general policy.

An employee of Company B--the store--is hurt on the job in a slip and fall.  The employee cannot sue the store for personal injury under the store's immunity under the framework of applicable worker's compensation law.

Accordingly, the injured store employee instead sues Company A--the owner of the premises for a recovery over and above any worker's compensation benefits secured.

When the suit is served on Company A--the owner--that party will send the claim over to the commercial general liability carrier and request a defense.  Prior to the Pennsylvania Supreme Court case noted above, most commercial general liability carriers took the position that the employer's liability exclusions in the commercial general liability policy supported a denial of liability coverage not only to the store that obtained the policy but also to Company A--the owner.

Here, in the Mutual Benefit Ins. Co. v. Politsopoulos case, the Pennsylvania Supreme Court ruled that the “employer’s liability” exclusion in a restaurant’s umbrella commercial liability policy did not preclude coverage for a negligence suit brought by a restaurant employee against the policy’s “additional insureds,” who were the owners of the property on which the restaurant conducted its business.

The Court ruled that the exclusion, which provided that the policy barred coverage for injuries to employees of “the insured,” was ambiguous.  Accordingly, under general principles of contract construction applicable in Pennsylvania, the ambiguity was construed against the commercial general liability carrier and the exclusion was more narrowly construed as applying only to claims asserted by employees of “the insured” against whom the claim was directed.  The court held that because the property owners in this case were not the underlying plaintiff’s employers, the exclusion did not apply.

The Majority Opinion written by Chief Justice Saylor can be read online HERE. 

The Concurring Opinion by Justice Eakin can be viewed HERE.

Notably, commentators have indicated that this decision would be applicable to any type of contractual arrangement where one party agrees to list another as an additional insured in a commercial liability policy, which are typical in construction and vendor contracts as well.

I send thanks to Attorney Richard Fine of the Scranton, PA law firm of Fine & Wyatt for bringing this case to my attention.

Pennsylvania Supreme Court Addresses Scope of Statutory Employer Immunity

In its recent decision in the case of Patton v. Worthington Associates, Inc., 2014 WL 1236499 (Pa. March 26, 2014) (Opinion by Saylor, J.) (concurring Opinion followed by Baer, J.), the Pennsylvania Supreme Court held that neither a subcontractor nor a subcontractor’s sole shareholder was an “independent contractor” relative to the statutory employer provisions of the Workers’ Compensation Act. 

 

By way of background, a subcontractor in this matter brought a negligence action against the general contractor to recover for injuries alleged sustained at a work site from a 14 foot fall.  

 

After a trial in the Bucks County Court of Common Pleas, the trial court entered judgment on the verdict in favor of the Plaintiffs and denied the general contractor’s Motion for Judgment Notwithstanding the Verdict (JNOV).   The general contractor appealed the Supreme Court ruled as noted above.  

 

The Pennsylvania Supreme Court noted that, pursuant to the Workers’ Compensation Act, general contractors are deemed to bear secondary liability for the payment of workers’ compensation benefits to injured workers employed by their subcontractors and, in this sense, general contractors are considered to be “Statutory Employers” relative to workers’ compensation liability, even though they are not common-law employers of the subcontractor’s employees.

 

Accordingly, the court went on to note that such Statutory Employers, including general contractors, could enjoy a measure of immunity from liability under the Workers’ Compensation Act for tort claims pertaining to work-related injuries.  

 

The Supreme Court went on to note that the governing law should have been applied by the trial court at the summary judgment stage before this case ever reached a trial in which the jury ruled in favor of the Plaintiff.  

 

In light of this decision in the case of Patton v. Worthington Associates, many general contractor and subcontractor Defendants in construction cases where a construction worker has been injured on the job have been amending their Answer and New Matter, or in federal court, their Answer and Affirmative Defenses, to include the statutory employer defense in order to preserve that defense to be raised at the Motion for Summary Judgment stage of the case.  

 

Anyone wishing to review a copy of Justice Saylor's majority opinion in the case of Patton v. Worthington Associates, Inc., may click this LINK.  Justice Baer's concurring opinion may be viewed HERE.  

Judge Nealon of Lackawanna County Finds No Waiver of Immunity by Employer Through Indemnification Clause

In his recent February 25, 2014 Opinion and Order, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of an employer's waiver of tort immunity by way of an indemnification clause in a contract in the case of Fritz v. Versacold Logistics, LLC, et al., No. 2012 - CV - 700 (Lacka. Co. Feb. 25, 2014 Nealon, J.).

In this premises liability slip and fall personal injury matter, a commercial landowner defendant joined its trucking company contractor as an additional defendant based upon an indemnification clause in their motor carrier transportation contract.

The additional defendant trucking company filed a motion for summary judgment arguing that it was immune from liability on the grounds that the plaintiff was its employee at the time of the subject incident and had received worker's compensation benefits from the additional defendant's worker's compensation carrier.  The additional defendant trucking company also asserted the indemnification clause in the contract did not contain language that was specific enough to avoid the immunity afforded to the trucking company under the Worker's Compensation Act.

The commercial landowner countered the additional defendant's motion for summary judgment with an argument that there were issues of fact as to the identity of the plaintiff's employer, as well as by arguing that the indemnification provision in the parties' contract enabled the landowner to seek contribution or indemnity from the trucking company.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon granted the additional defendant trucking company's motion for summary judgment after finding that judicial admissions in the landowner's pleadings had established that the plaintiff was indeed an employee of the trucking company. 

The court also reviewed the law on the validity of indemnification clauses and found that the language in the clause at issue in this matter did not satisfy the requirements under the Worker's Compensation Act to allow for a waiver of the immunity afforded by that Act.  More specifically, the contract language of the clause at issue did not expressly refer to tort claims by the additional defendant's employees resulting from the landowner defendant's negligence.



Anyone wishing to review Judge Nealon's Opinion in the Fritz case may click this LINK.

For other decisions by Judge Nealon on the validity of an indemnification clause, click HERE and HERE.


Source of image:  www.appraiseractive.com

Specificity Needed in Indemnification Agreement to Waive Employer Immunity in Personal Injury Litigation

In his recent decision in the case of Genevich v. TSE Inc., No. 09 - CV - 5119 (C.P. Lacka. Co. May 17, 2013 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of the specificity required in an indemnification agreement to waive employer immunity in a personal injury litigation.

In Genevich, a laborer who was injured in a construction site accident filed a personal injury suit against the project’s general contractor.  The general contractor joined the laborer’s employer based upon an indemnification clause contained in its subcontractor agreement. 

The employer filed a motion for summary judgment in which the employer of the injured party asserted that the indemnification provision in the subcontractor agreement was insufficient to waive its tort immunity under the Worker’s Compensation Act so as to make employer liable for indemnification or contribution for injuries suffered by its employee. 

After reviewing the record before it, the court ruled that since the indemnification clause did not expressly state that the subcontractor agreed to indemnify the general contractor from liability for the general contractor’s own negligence which resulted in harm to the subcontractor’s employees, the clause lacked the specificity required by 77 P.S. §481(b) for the subcontractor to waive its employer immunity under the Worker’s Compensation Act. 

Accordingly, since the subcontractor cannot be liable for indemnification or contribution under the facts and the indemnification clause presented in this case, the court granted the employer's motion for summary judgment.

Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

Commonwealth Court Addresses Actual Notice Requirement Under the Sovereign Immunity Act

The Pennsylvania Commonwealth Court recently addressed the parametersof the written notice provision under the Sovereign Immunity Act, 42 Pa.C.S.A. Section 8522(b)(5), in the case of  Walthour v. PennDOT, No. 390 C.D. 2011 (Pa.Cmwlth. Nov. 17, 2011 McGinley, Cohn Jubelirer, Friedman, JJ.)(Opinion by Cohn Jubelirer).

In this case, a plaintiff was injured when the motorcycle she was a passenger on hit a pothole and causing her to be ejected from the bike and sustain personal injuries.  The Plaintiff sued PennDOT under an allegation that that Commonwealth Department had prior notice of the dangerous condition of the road and failed to fix it.

PennDOT eventually filed a Motion for Summary Judgment on the grounds that there was no evidence that the Department had prior, actual knowledge of the pothole as alleged.  PennDOT argued that, although it had received a letter from a State Senator regarding the condition of the subject roadway, that letter did not reference potholes.

The Allegheny County trial court previously granted PennDOT's motion for summary judgment.  On appeal, the Commonwealth Court found material facts to be in dispute and vacated the trial court's granting of a defendant's motion for summary judgment.

More specifically, the appellate court ruled that it was for a jury to decide whether the letter from the State Senator to PennDOT regarding overall condition of a particular portion of a state roadway, without specifically referencing the pothole in question, satisfied the written notice provision of the Sovereign Immunity Act, 42 Pa.C.S.A. 8522(b)(5).

The Commonwealth Court's Opinion in Walthour can be viewed here.

I send thanks to Attorney William Mabius of the Pennsylvania Association for Justice for bringing this case to my attention.

Municipality Immune From Suit Involving Car Accident Caused by Black Ice on Roadway

In its July 18, 2011 decision in the case of Page v. City of Philadelphia, 2011 WL 2749671, No. 1542 C.D. 2010 (Pa.Cmwlth. July 18, 2011, McGinley, Brobson, Friedman, J.J.)(Opinion by Friedman, S.J.), the Commonwealth Court of Pennsylvania affirmed the entry of a summary judgment in favor of municipality defendants against a claim that the subject car accident was caused by black ice.

The Plaintiffs had claimed that the black ice developed on the roadway by the melting an re-freezing of improperly removed snow and ice.  The Court found that real estate exception and the streets exception to sovereign immunity and governmental immunity were inapplicable because the ice did not derive or originate from the roadway and because the ice was not caused by an improper design or inherent defect of the street itself.

The Opinion in Page v. City of Philadelphia can be viewed online here.

Judge Amesbury of Luzerne County Addresses Municipal Tort Claims Act

In his July 5, 2011 Order and Opinion in the case of Vannucchi v. Marquis, No. 1136 of 2008 and No. 5136 of 2008 (Luz. Co. July 5, 2011, Amesbury, J.), Judge Amesbury ruled upon a Municipal Tort Claims Act case and allowed the case to proceed beyond the summary judgment stage against a towing company, a local police department, and local police officers.


By way of background, this matter arose out of an incident during which a police officer pulled over a motorist on a motorcycle and ultimately made a decision that the motorcycle should be impounded. When the flatbed tow truck operator arrived at the scene, the police officers turned over the keys to the motorcycle to the tow truck operator. The police officers then left the scene.

Thereafter, as the flat bed tow truck operator had loaded the motorcycle onto the flatbed and was talking to the motorcycle operator in the street, a drunk driver came by and struck and killed the motorcycle operator.

In his decision, Judge Amesbury denied the private towing company Defendant’s request to amend the pleadings to assert the defense of governmental immunity based upon an allegation that this was a police tow as a opposed to a private tow. The Court found that such an amendment would be futile as against a positive rule of law in that the tow company could not be considered a governmental entity under the facts presented.

The Court also denied the Motion for Summary Judgment filed by the police department and the local police officers. The Court found that the Plaintiff’s allegations that the failure of the police to use their patrol vehicle as a safety barrier at the scene of the accident as well as the failure of the police to control the scene by the use of flares and/or traffic control devices were negligent allegations that should proceed to a jury for consideration.

Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.

Summary Judgment Secured in Slip and Fall Case Against Municipality in Lackawanna County

My partner, Timothy E. Foley, Esquire and myself were successful in securing a summary judgment for the defense in the slip and fall case of Gerrity v. The City of Scranton, No. 07 CV 6476 (Lacka. Co. March 17, 2010 Leete, S.J.).

The Plaintiff alleged injuries as a result of allegedly slipping and falling on ice and/or snow that had accumulated in the area of a depressed or sub-grade manhole cover on a City of Scranton alleyway.

The defense argued that, under Pennsylvania law, municipalities were not liable and/or enjoyed immunity from liability for injuries caused by naturally accumulated ice or snow on city streets under the Political Subdivision Tort Claims Act. It was additionally asserted that the immunity afforded to the City was not defeated by the application of the Streets Exception of the statute. Lastly, the defense asserted that, regardless, the Plaintiff was unable to prove any actual or constructive notice on the part of the City of any allegedly dangerous condition of the snow or ice on the roadways.

Specially Presiding Senior Judge John Leete, of Potter County, presided over this argument. In his Opinion and Order he found, as a matter of first impression and viewing the evidence in a light most favorable to the Plaintiff, that the Plaintiff's fall was potentially caused, in part, by the uneven surface created by the below-grade manhole cover which was part "of," rather than merely located on, the street. He further noted that "[a]ny snow accumulating therein could thus be seen as being exacerbated by an artificial condition sufficient to fall under the 'streets' exception."

However, Judge Leete went on to find that the Plaintiff failed to sustain his burden of showing any actual or constructive notice of any such allegedly dangerous condition so as to warrant a submission of the case to a jury. As such, summary judgment was entered in favor of Defendant, The City of Scranton.


Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net