Court Reaffirms Rule That Case Cannot Proceed Against a Deceased Defendant

In the case of Carter v. Marchisotto, No. GD 21-844 (C.P. Alleg. Co. May 13, 2024 Hertzberg, J.), the court, in a Rule 1925 Opinion, justified its decision in granting summary judgment in a trip and fall case.

After initially noting that the court’s entry of summary judgment against one of the Defendants did not result in a final Order disposing of all claims and that, therefore, the Plaintiff’s appeal should be quashed, the court still addressed certain other issues raised in the event the Superior Court went on to consider the merits of the appeal.

Of note, the court noted that the Plaintiffs had listed an administratrix of the estate of a deceased Defendant as a party Defendant. However, the defense in the case had shown that no such administratrix had been formally appointed by the court.

Accordingly, the court noted that it had properly dismissed that Defendant, in part, under Pennsylvania law that holds that no dead person can be a party to a lawsuit because a court does not have any jurisdiction until a personal representative is formally substituted in the place of the dead party.

The court noted that it was improper for the Plaintiff to file a case directly against the heirs of the deceased Defendant and avoid the proper procedures for the appointment of a personal representative of the estate and, thereafter, substituting the estate of the deceased Defendant as the party Defendant.

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 4, 2024).

Petition To Transfer Under Doctrine of Forum Non Conveniens Denied

In the case of Russo v. Allstate Indem. Corp., Feb. Term 2022, No. 02004 (C.P. Phila. Co. Feb. 15, 2023 Fletman, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s decision to deny the insurance company’s Petition to Transfer Venue under the Doctrine of Forum Non Conveniens.

The trial court initially ruled that the appeal should be quashed because the Order denying the Petition to Transfer Venue for Forum Non Conveniens is not an appealable Order under the Pennsylvania Rules of Appellate Procedure.

In this regard, the trial court noted that the Order did not dispose of all parties and all claims and did not change venue or transfer the matter to another court.

The trial court stated that, while Orders granting changes in venue are interlocutory Orders that are appealable as of right, Orders denying such petitions were not appealable.

The trial court went on to review the substantive issues presented as well. The trial court stated that it denied the Motion to Transfer Venue where the Defendant had failed to carry its burden of providing detailed information to establish that the Plaintiff’s chosen forum was oppressive or vexatious. In particular, the court noted that the Defendant did not provide any Affidavits from any witnesses who would be inconvenienced.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 16, 2023.).

Pennsylvania Superior Court Reviews Discovery Issues Involving Attorney-Client Privilege and Work Product Doctrine

In the case of Holland v. The Physical Therapy Inst., No. 1515 WDA 2021 (Pa. Super. March 17, 2023 Olson, J., Dubow, J., and Collins, J.), (Op. by Collins, J.) [non-precedential], the court addressed several discovery issues and the issue of whether an appeal from a discovery order is appropriate.

With regard to the ability of a party to appeal from a discovery order, the court noted that, generally, discovery orders are deemed interlocutory and are not immediately appealable, because they do not serve to dispose of the litigation in its entirety. 

Yet, discovery orders that require the disclosure of privilege materials are generally found to be appealable under Pa. R.A.P. 313 where the issue of privilege is separable from the underlying issues presented.

Based upon this rule of law, the court quashed the appeal in part and affirmed it in part and remanded the matter back to the trial court with further instructions.

On the substantive issues, the court noted that the appeal involved a six-part discovery order that required the Defendants to provide documents dealing with financial and investment-related matters as well as communications with counsel in this case involving a breach of contract action.

The Defendants asserted that the lower court erred by not conducting in-camera review of the disputed documents prior to making its ruling. The Defendants additionally asserted that the court committed various errors of law or abuses of discretion in its discovery order.

In this decision, the Pennsylvania Superior Court provided its latest review of the attorney-client privilege and the work product doctrine.

The Superior Court noted that the trial court, in finding that the Defendants had waived the attorney/client and the work-product privileges did not conduct any in-camera review of certain documents, despite having already conducted an in-camera review of other documents.

The court found that a remand was appropriate in light of this ambiguity. On remand, the trial court was directed to ascertain whether the Defendants waived the privileges noted and, to conduct an in-camera review of potentially privilege material before making a determination as to whether the documents at issue were indeed discoverable.

The Superior Court also noted that the trial court, on remand, must unequivocally determine whether allowing for punitive damages-related discovery is appropriate under the circumstances as required by Pa. R.C.P. 4003.7, which relates to discovery of financial information of a Defendant in a punitive damages case.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 20, 2023).

Court Addresses A Number of Notable Trial Issues in a Shooting Case That May Apply In Many Other Types of Civil Litigation Trials

In the case of Rogers v. Thomas, No. 1915 MDA 2018 (Pa. Super. March 2, 2023)(en banc) (Op. by Stabile, J.)(Concurring Op. by Kunselman, J.), the court addressed a number of post-trial issues following a multi-day wrongful death and survival action jury trial arising out of a fatal shooting incident.

Of note, the Pennsylvania Superior Court addressed whether the doctrine of collateral estoppel applied to the shooter’s criminal conviction arising out of the same incident so as to conclusively establish the shooter’s liability in this civil litigation. In the end, the court found that, under the doctrine of collateral estoppel, the shooter’s conviction for voluntary manslaughter conclusively established the facts that were determined in his criminal trial relative to the shootings.  

However, the appellate court in this civil litigation confirmed that the results of the criminal trial did not answer the questions of causation or comparative fault in this personal injury matter.  Rather, those questions remained to be determined in this civil trial before a jury could consider whether or not to award damages. See Op. at 11-12.

In so ruling, the Pennsylvania Superior Court provided a detailed recitation of Pennsylvania precedent on the effect of collateral estoppel upon civil proceedings following a previous criminal conviction.

The court also addressed the issue of whether the concept of comparative negligence applies in cases where a Defendant has engaged in intentional or reckless conduct as was alleged in this matter.

The Pennsylvania Superior Court noted that, “[a]lthough our Supreme Court has not addressed the issue, both this Court and our sister court, the Commonwealth court, have held that the Comparative and Negligence Act does not apply in a situation where a Plaintiff may be guilty of negligence, but a Defendant has acted recklessly.”  See Op. at 22 [citations omitted].

Here, the shooter argued that the Plaintiffs were wrong in arguing that the doctrine of comparative negligence should not have been applied. The shooter argued that there had never been any determination in any court that the conduct of the shooter was found to be “willful, wanton, or reckless.” 

The Superior Court noted that the plain language of the criminal statute pertaining to voluntary manslaughter did not contain any requirement of a finding that a person acted recklessly to be guilty of that crime.

The court went on to note that, even though the shooter may have acted intentionally, there still remained a question as to whether or not the shooter was justified in believing that his actions were in self-defense and, as such, potentially not reckless. 

The court confirmed that a person may have been found to have acted intentionally, but that does not necessarily mean that they also acted recklessly. 

As such, the Superior Court in this Rogers case found that the Plaintiffs were incorrect in asserting that intentional conduct necessarily covers reckless conduct.  See Op. at 23-24.

This decision is also notable in that the court found that the Plaintiffs had waived a number of issues by failing to follow the appellate rules establishing the procedures necessary to preserve issues for appeal.

In one instance, the court found that the Plaintiffs had waived their challenge to the trial court’s previous coordination order in which a Lackawanna County lawsuit was coordinated with a Susquehanna County lawsuit.  In this regard, the Pennsylvania Superior Court noted that the Pennsylvania Rules of Appellate Procedure 311(c) allows a party in a civil action to take an interlocutory appeal as of right from an Order changing venue and/or transferring a case to another court of coordinated jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens.

The court noted that a failure to lodge an interlocutory appeal in this scenario constitutes a waiver in any subsequent appeal of related challenges to decisions by the court.

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

The Concurring Opinion by Judge Kunselman can be viewed HERE.


I send thanks to Attorney Gary Weber of the Williamsport, Pa law firm of Mitchell Gallagher, P.C. for bringing this case to my attention.

Trial Court Opines That Defendant's Appeal From Order Dismissing Defendant's Objections to Jurisdiction Should Be Quashed

In the case Galette v. New Jersey Transit, No. 200800610 (C.P. Phila. Co. May 31, 2022 Crumlish, J.), the trial court filed a Rule 1925 Opinion to the appellate court recommending the dismissal of the Defendant’s appeal from the trial court’s Order dismissing the Defendant’s objections to jurisdiction.

It was the position of the trial court that the Order dismissing the Defendant’s objection to jurisdiction was appealable only under Pa.R.A.P. 311(b) and that the requirements of that Rule had not been met. 

According to the Opinion, this matter arose out of a personal injury action filed by the Plaintiff against the Defendant New Jersey Transit, and another Defendant. According to the lawsuit, the Plaintiff was injured while sitting in a parked vehicle in the City of Philadelphia when that vehicle was allegedly struck by a bus operated by one of NJ Transit’s employees.

The Defendant, NJ Transit, objected to the court’s jurisdiction over it through a Motion to Dismiss. That Motion was denied and NJ Transit filed an appeal, which prompted this Opinion by the court.

The trial court noted that an Order denying a Motion to Dismiss is ordinarily interlocutory and, therefore, not appealable unless expressly made so by statute.

In its Opinion, the court cited to Pa.R.A.P. 311, which lists the interlocutory appeals that may be taken as a right, and Pa.R.A.P. 312, which allows for interlocutory appeals by permission.

Under Pa. R.A.P. 311(b), an appeal is allowed as a right when a trial court’s Order overruled Preliminary Objections to the trial court’s in personam or in rem jurisdiction and either the Plaintiff elected to treat the Order as final or the trial court stated in the Order that a substantial issue of jurisdiction existed.

Given that these requirements were not met, and given that the Defendant, NJ Transit, did not otherwise seek leave of court to file an interlocutory appeal, or request an Order stating that a substantial issue of jurisdiction was presented, the trial court noted that the appeal should be quashed by the Pennsylvania Superior Court.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 7, 2022).

Appeal Dismissed Where Trial Court Order Did Not Dispose of All Claims or All Parties

In the case of D’Angelo v. J.P. Morgan Chase Bank, N.A., No. 2007-0041-40 (C.P. Bucks Co. Oct. 15, 2021 Trauger, J.), the court issued a Rule 1925(a) Opinion in support of its previous Order in this case involving alleged forgeries on mortgages.

The court dismissed the Plaintiffs’ appeal from an Order granting one Defendant's Motion for Summary Judgment as premature. The appeal was dismissed because the subject Order was found not to be a final Order where that Order did not dispose of all claims and/or all parties, and did not otherwise constitute an Order that was appealable under any of the other applicable exceptions or on an interlocutory basis.

The trial court requested that the Superior Court affirmed its decision in this regard.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec.1, 2021).

Appeal Quashed Where Summary Judgment Entered In Favor of Less Than All Defendants

In the case of Massaro v. Tincher Constr., 2019 Pa. Super 44 (Pa. Super. Feb. 19, 2019 Bender, P.J.E., Nichols, J., Stevens, P.J.E.), the Pennsylvania Superior Court addressed the propriety of an appeal from an Order entering summary judgment for less than all of the Defendants.  

The court ruled that an appeal from an Order entering summary judgment for one (1) Defendant but not other Defendants was not immediately appealable under the Pennsylvania Rules of Appellate Procedure.   The court also noted that, since no request for permission to appeal had been submitted to either the trial court or the appellate court, the appeal from the summary judgment order was quashed.  

The Majority Opinion of the Superior Court by Judge Nichols can be viewed HERE.

The Dissenting Opinion by President Judge Emeritus Bender can be viewed HERE.

 

Source:  “Court Summaries” by Timothy L. Clawges Pennsylvania Bar News (March 18, 2019).  

A Primer on Interlocutory Appeals

In the case of DSP II, LP v. Dr. Matt Vegari 2012 Irrevocable Trust, No. 18-CV-517 (C.P. Lacka. Co. Nov. 27, 2018 Nealon, J.), the court ruled that an Order overruling Defendant’s Preliminary Objections as to venue did not constitute an appealable Interlocutory Order.   The court therefore ruled, in its Rule 1925 Opinion, that the Defendant’s appeal should be dismissed. 

Judge Terrence R. Nealon
Lackawanna County

 

The court noted that an appeal from a ruling on the Defendant’s Preliminary Objections constituted an Interlocutory Order and that an appeal of such Order is only permitted “as of right” pursuant to Pa.R.A.P. 311, or if the Defendant had secured permission to appeal the Interlocutory Order under Pa.R.A.P. 312.  

Since the Defendant did not petition for permission to appeal and given that the language required under 42 Pa. C.S.A. §702(b) was not included in the Order, the Defendant was not entitled to appeal the court’s decision on the Preliminary Objections pertaining to venue. As such, in this Rule 1925 Opinion, Judge Nealon concluded that the appeal should be dismissed.

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Dec. 18, 2018)

Appeal of Denial of Motion to Disqualify a Court Appointed Neutral Quashed

In the case of Haviland v. Kline & Specter, No. 1791 EDA 2017 (Pa. Super. March 22, 2018 Murray, J., McLaughlin, J., and Stevens, J.) (Op. by Murray, J.), the Pennsylvania Superior Court addressed the rules of pertaining to permissible appeals from the trial court. In this particular case, the question was whether a trial court’s denial of a motion to disqualify a court appointed neutral arbitrator was appealable.   The court ruled that it was not and, therefore, he appeal was quashed.  

This matter arose out of a dispute between law firms over fees.   In the trial court proceedings, the court appointed a neutral arbitrator to hear the matter.   One of the parties involved filed a motion to disqualify that arbitrator.   After the trial court denied the motion to disqualify the neutral arbitrator, the case was appealed.  

A main portion of this court’s Opinion dealt with whether the trial court’s denial of the motion to disqualify the arbitrator was appealable as a non-final order.   In this regard, the Superior Court stated that it was unable to locate any case directly on point. However, the court concluded that the case law addressing the interlocutory nature of pre-trial recusals of trial court judges to be persuasive and instructive.  

The court held that “an order denying a motion seeking the recusal or disqualification of an arbitrator, as with an order denying the recusal of a trial judge, is not a final order or an interlocutory order appealable as of right or as a collateral order.  

Given that the Superior Court found that the trial court’s Order denying a party’s motion to disqualify an arbitrator is not a final order or an interlocutory order appealable as of right or as a collateral order, the Superior Court quashed this appeal as it, therefore, did not have jurisdiction to the merits of the issue presented. 

Anyone wishing to read this case may click this LINK.

Pennsylvania Supreme Court Reviews Collateral Order Doctrine for Appeals

Tort Talkers may recall prior posts on the Lebanon County case of Shearer v. Hafer pertaining to whether a Plaintiff is entitle to have a representative present during portions of a neuropsychological IME. 

The Tort Talk post on the Superior Court's decision in this case can be viewed HERE.  The post on the trial court's decision can be viewed HERE.  Concisely, the Superior Court affirmed the trial court's order allowing a representative of the Plaintiff to be present during the preliminary interview phase of the neuropsychological evaluation, but not during the standardized testing portion of the evaluation.

Now comes the Pennsylvania Supreme Court decision recently handed down in this case on January 18, 2018 ruling that the Pennsylvania Superior Court erred in even considering the issue on appeal as the trial court's order was not an appealable order as of right under Pa.R.A.P. 313 where the trial court order only met one of the three prongs of the collateral order doctrine.  As such, the Superior Court's decision on the issue was vacated.

The Majority Opinion of the Court in Shearer v. Hafer, No. 93 MAP 2016 (Pa. Jan. 18, 2018), written by Justice Todd, can be viewed HERE.

Justice Wecht's Concurring Opinion can be viewed HERE.

Justice Mundy's Dissenting Opinion can be viewed HERE.

This Opinion may be a good one to consult if you have a question on whether a trial court order is appealable under the collateral order doctrine under Pa.R.A.P. 313. 

The Pennsylvania Supreme Court reaffirmed the rule of law that the collateral order doctrine is to be narrowly construed and that each of the three prongs to allow for an appeal must be clearly present.

The three prongs of the collateral order doctrine as set forth under Pa.R.A.P. 313(b) are:

(1) the order is separable from and collateral to the main cause of action

(2) the right involved in the order is too important to be denied review by the appellate court, and

(3) the question presented is such that if review is postponed until the final judgment of the case, the claim will be irreparably lost.

Superior Court Rules That Any Trial Court Orders on Discovery Privileges Can Go Right Up the Appellate Ladder

In its recent decision in the case of Farrell v. Regola, 2016 Pa. Super. 241 (Pa. Super Nov. 8, 2016 Bowes, Jenkins, J.J.) (Op. by Bowes, J.), the Pennsylvania Superior Court reversed a trial court’s decision on an interlocutory appeal taken from a discovery order.  

The case involved claims of privilege, including the attorney/client privilege and psychologist/patient privilege relative to requested information from a Defendant.  

The court ruled that the ordering of the production of the Defendant’s privileged information, even for the purpose of an in camera review by the trial court, allows for an immediate interlocutory appeal as of right as a collateral order.  

The Superior Court ruled that, if matters are indeed privileged, no one, not even a trial judge, may have access to them.  The Superior Court also ruled that the application of privileges is subject to a de novo review. 

The court went on to note that statements made to a psychologist during the course of therapy are indeed privileged.   The court also noted that this privilege covers statements made to any members of the treatment team, including social workers.  

The court also found that since the Defendant did not initiate the cause of action, the Defendant did not waive the privilege asserted.  

The court otherwise ruled in this matter that a party’s notes taken at a deposition at the direction of counsel, are protected by attorney/client privilege. 

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. 

Electronic Filing of Record on Appeals Now Allowed

The Pennsylvania Supreme Court has issued a November 13, 2015 Order, effective immediately, allowing for the electronic filing, transmission, and/or remand of a record on an appeal.

Here is a LINK to the Order.

Appeal of MSJ Order Quashed in Consolidated Case Where Not All Defendants Dismissed

In the recent Superior Court case of Malanchuk v. Tsimura, 2014 Pa. Super. 277, 1379 EDA 2012 (Dec. 17, 2014 Ford Elliot, P.J.E.), an en banc Court ruled in this construction accident personal injury case that the Plaintiff could not take an appeal from a Summary Judgment against a single Defendant when that negligence case was consolidated with a negligence case against another action where the other Defendant did not receive a Summary Judgment.

The court rejected the Plaintiff's argument that, although the separate claims against the separate Defendants were consolidated, the entry of summary judgments against one Defendant but not the other should be viewed as separate final Orders from the trial court capable of being appealed.

Rather the Malanchuk Court ruled that the Order appealed from was interlocutory in nature as the Order did not dispose of all parties or all claims.  The Plaintiff did not follow the required procedures to seek permission to file an appeal from an interlocutory Order.  As such the appeal was quashed.

I send thanks to the prevailing attorney Robert Horn of Connors Law in Exton, PA for bringing this case to my attention.

Anyone wishing to review this case may click this LINK.



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