Judge Linhardt of Lycoming County Rules that Allegations of Recklessness Must Be Supported By Facts Pled in the Complaint

In the case of Charles v. Martin, No. CV25-00, 974 (C.P. Lyc. Co. Dec. 12, 2025 Linhardt, J.), Judge Eric R. Linhardt of the Lycoming County Court of Common Pleas overruled a Defendant-driver’s Preliminary Objections against allegations of recklessness in a motor vehicle accident case in a matter in which intoxication on the part of the Defendant-driver was alleged.

Notably, in his decision, Judge Linhardt held that, while allegations of recklessness could be pled generally, a plaintiff still also has to plead facts in the Complaint to support such a claim.   

According to the Opinion, this matter arose out of a fatal motor vehicle accident during which it was alleged that the Defendant-driver crossed the center line and was involved in a head-on collision with the decedent’s vehicle.  As noted, included in the Complaint were allegations that the Defendant-driver was intoxicated and under the influence of a controlled substance at the time of the incident.

After the Plaintiff filed a Complaint alleging, in part, that the Defendant driver was negligent, careless and reckless, the Defendant-driver filed Preliminary Objections for a variety of reasons. In part, the Defendant asserted that the Complaint contained non-specific allegations of recklessness which should be stricken or dismissed. The Defendant also requested that the Plaintiffs’ claim for punitive damages also be stricken or dismissed.

After reviewing the current status of Pennsylvania law regarding the pleading of recklessness allegations and claim for punitive damages, the court noted that, while Pennsylvania is a fact-pleading state which requires a Plaintiff to plead the material facts upon which a cause of action is based, notwithstanding this rule, allegations regarding conditions of a tortfeasor’s mind may be alleged generally.

However, in his decision, even after referring to the Superior Court's decision in the case of Monroe v. CBH2O, LP, 286 A.3d 785, 798-99 (Pa. Super. 2022), Judge Linhardt noted that the exception to the general rules of pleading permitting a party’s state of mind to be pled generally does not dispense with the requirement that material facts constituting the conduct of a Defendant must also still be pled. See Op. at 7 citing Ammlung v. City of Chester, 302 A.2d 491, 497-98 (Pa. Super. 1973).

Judge Eric R. Linhardt
Lycoming Co.

Accordingly, Judge Linhardt held that, although a Plaintiff may generally allege that the Defendant- driver acted recklessly, the Plaintiff still “must allege sufficient material facts to support their general allegation and, if the material facts proposed in their Complaint operate to disprove their allegations of recklessness, those allegations must be dismissed.” See Op. at 7 citing with see, e.g. signal, Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1025-26 (Pa. Cmwlth. 2014).

In this case, the court noted that the Plaintiff’s Complaint alleged that the Defendant acted recklessly because he operated a motor vehicle while intoxicated and under the influence of a controlled substance. The Complaint also alleged a number of ways in which the Defendant was reckless by violating several provisions of the Motor Vehicle Code.

Judge Linhardt pointed to case law confirming that the operation of a vehicle while under the influence is sufficient to support allegations that a Defendant driver acted recklessly and may be exposed to an award of punitive damages.

Accordingly, the court found that the Plaintiff had sufficiently pled their allegations of recklessness such that the Preliminary Objections were overruled. 

Judge Linhardt ended his decision by noting that, should facts emerge during discovery calling the Plaintiff’s allegations into question, the Defendant had the right to file an appropriate Motion.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 8, 2026).

Source of image:  Photo by Olia Danilevich on www.pexels.com.

Company That Charged For Work Event At Which Alcohol Was Served Can't Be Held Liable Under Social Host Liability Theory

In the case of Klar v. Dairy Farmers of America, Inc., No. 29 WAP 2022 (Pa. Aug. 22, 2023 Wecht, J.), the Pennsylvania Supreme Court revisited precedents from over a half of a century that have imposed civil liability arising from the provision of alcohol to visibly intoxicated persons with respect to persons and entities licensed to engage in the commercial sale of alcohol while those precedents have also limited the liability of non-licensees and “social hosts.”

In this matter, Pennsylvania Supreme Court affirmed the decisions of the lower courts that held that an organization which hosted an event at which alcohol was provided, but which organization was not a liquor licensee, could not be held liable for injuries caused by a guest who had become intoxicated at the event and was later involved in a motor vehicle accident.

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

Source: Article - “Company That Charged For Work Event Can’t Be Held Liable for Guest’s Drunken Driving, Says Pa. High Court, By: Riley Brennan of the Pennsylvania Law Weekly (Aug. 24, 2023).

Court Addresses Social Host Liability Issues For Homeowners Where Minor Allegedly Drank Alcohol in the Home and Was then Injured

Homeowner, Frank The Tank, Incurs Social Host Liability

In the case of Szydlowski v. Pusz, No. 5649-CV-2020 (C.P. Monroe Co. July 12, 2023), the court granted in part and denied in part a Motion for Summary Judgment in a case involving allegations of social host liability against homeowners for allegedly furnishing alcohol to a minor in their home.

According to the Opinion, the Plaintiff was 19 years of age when he allegedly drank two (2) alcoholic beverages while attending a party at the Defendants’ home.  In this context, under Pennsylvania law, anyone under the drinking age of 21 is considered to be a "minor."

In terms of the subject accident, another adult at the party allegedly lost control of a ATV and crashed into the Plaintiff, causing him injuries.

The Plaintiff sued and included the homeowners as Defendants on a claim of negligence, alleging that he was unable to evade the ATV because of the effects of the alcohol he had consumed at the Defendants’ home.

In this matter, the Defendant homeowners maintained that they did not agree to, or plan, an underage drinking party. However, the Plaintiff noted that a State Trooper who had investigated the accident had testified that every person attending the party was drinking.

The court held that parents who hold a party that includes minor guests and knowingly allow them to consume any amount of alcohol are subject to potential social host liability.

The court additionally noted that the separate issue of whether a minor became intoxicated as a result of drinking alcohol in the home goes to the question of causation, not liability.

Judge Zulick stated that a minor Plaintiff need not prove that the Defendant homeowners specifically served him alcohol in order to impose social host liability against those Defendants. However, there must be evidence that the homeowners did more than simply have alcohol present in their home.

The court otherwise indicated that homeowner Defendants who knowingly allow their premises to be generally used for the purpose of serving alcohol to minors is sufficient evidence for the imposition of liability, even though the alcohol may have been provided by someone other than the homeowner.

With the Defendants' Motion before the Court, the central question was whether the homeowner Defendants knowingly served alcohol to the minor Plaintiff. The court found that there were material questions of fact in this regard and that, as such, the homeowner Defendants were not entitled to summary judgment. As such, this part of the Defendants’ Motion was denied.

However, the court did grant the Defendants’ Motion for Summary Judgment relative to the Plaintiff’s punitive damages claims.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 1, 2023).

Source of video:  Old Schoool by the Montecito Picture Company (2003)

ARTICLE: Auto Decisions in 2019 Show That the Plaintiff's Day Has Come

This article of mine was recently published in The Pennsylvania Law Weekly and is republished here with permission:

Auto Decisions in 2019 Show That the Plaintiff’s Day Has Come

By Daniel E. Cummins | January 30, 2020

The past year was a banner year for the plaintiffs bar in terms of decisions from the Pennsylvania Supreme Court allowing for greater avenues of recovery. As a consequence, the past year will also turn out to be a boon for the auto accident defense bar in terms of more business with the need for further litigation going forward on recurring issues of note. In the end, with the decisions handed down over the past year by the appellate courts in this context, the days of cost containment are fading in the rear view mirror to the detriment of all Pennsylvania drivers who face the prospect of increased automobile insurance premiums down the road ahead.

The plaintiffs bar’s organized effort in past years to get their favored judicial candidates onto the Pennsylvania Supreme Court’s bench is paying off in spades. The now more liberal, judicially activist court has been tossing the doctrine of stare decisis out the window and is instead relying upon soft, amorphous public policy rationales to cut down long-standing precedent and create new law with abandon, and at times, even with a vengeance. With several decisions over the past year, the Supreme Court has rewritten parts of the General Assembly’s Motor Vehicle Financial Responsibility Law (MVFRL) with little regard for the checks and balances put in place by the Pennsylvania Constitution that places the law-making duties solely with the legislature.

The Pennsylvania Supreme Court’s penchant for rewriting Pennsylvania law in the place of the legislature’s duty to do so has advanced so far to the point that even Justice David Wecht has strongly cautioned his counterparts in his increasingly frequent dissenting opinions that the majority’s “freewheeling and unwarranted invocation of ‘public policy,’” particularly in motor vehicle accident cases, “risks an appearance of jurisprudence that is arbitrary, unprincipled and ultimately illegitimate.” See Sayles v. Allstate, No. 58 MAP 2018 (Pa. Nov. 20, 2019).

Indeed, a new era of plaintiff-favorable jurisprudence is emerging in Pennsylvania that will alter how many important aspects of automobile accident claims will be handled in the future.

Seismic Changes in Motor Vehicle Accident Law

The year started off the Pennsylvania Supreme Court’s earthquake of a decision in the case of Gallagher v. Geico, 201 A.3d 131 (Pa. Jan. 23, 2019), in which the court shook up the motor vehicle accident litigation world and held that the household exclusion contained in a Geico policy violated the MVFRL because it served as a “de facto waiver” of stacked coverage. In a stunning example of its judicial activism in favor of plaintiffs causes, the court noted that its decision in Gallagher not only applied to that case, but should also be read to eradicate the household exclusion across the board.

Over the course of the year, the scope of the Gallagher decision was expanded further by other federal and state courts in Pennsylvania. Just recently, in the case of Kline v. Travelers, No. 104 MDA 2019 (Pa. Super. Nov. 19, 2019), the Pennsylvania Superior Court ruled that the Pennsylvania Supreme Court decision in Gallagher should be read to apply retroactively. This decision is important to the plaintiffs bar as it confirms that the already filed class action lawsuit, in which plaintiffs have asserted that they have been wrongfully denied coverage by the application of the household exclusion in prior claims, may proceed forward.

The plaintiffs bar scored yet another victory at the Pennsylvania Supreme Court level with in Sayles. The Sayles case involved the long-standing practice of automobile insurance companies periodically requesting its insureds to attend a medical exam in first party (PIP) medical benefits claims as required by the terms of the insurance policy.

The court, relying in part on alleged public policy concerns, accepted the plaintiffs’ argument in Sayles that such policy terms requiring insureds to submit to an exam or exams at the request of the carrier irreconcilably conflicted with 75 Pa.C.S.A. Section 1796 of the MVFRL, which is titled “mental or physical examination of a person.”

The Pennsylvania Supreme Court, rejected the current practice of PIP insurers requesting its insureds to attend a medical examinations as per the provisions of the insurance policy agreed to by the parties and ruled that insurers must, instead, file a motion with a trial court judge and demonstrate good cause to support the request for the exam. Under this ruling, it will now be a trial court judge who will select the medical examiner and who will also set the parameters of the exam.

In light of the Sayles decision, motor vehicle accident litigators and trial court judges can unfortunately now expect a flood of motions followed by petty litigation over the selection of an appropriate doctor and the parameters of the exam. Unfortunately, in its haste to effectuate this change in the law, the Supreme Court in Sayles failed to provide trial court judges with any guidance on how to decide these more specific issues.

Over the past year, the Pennsylvania Supreme Court did rule in favor of an auto accident law defense position put forth in at least the case of Safe Auto Insurance v. Oriental-Guillermo, 26 MAP 2018 (Pa. Aug. 20, 2019). In this case, the Supreme Court affirmed the Superior Court’s decision upholding the validity of Safe Auto’s unlisted resident driver exclusion.

Under this exclusion, Safe Auto excluded from coverage under its policy those individuals who resided with the Safe Auto insured, but who was not related to the insured and who were not listed on the Safe Auto policy as additional drivers.

The Supreme Court agreed that this insurance contract provision was not ambiguous, did not violate Pennsylvania’s Motor Vehicle Financial Responsibility Law, and did not violate Pennsylvania’s public policy.

Future Medical Expenses Claims in Auto Cases

Another notable appellate decision under Pennsylvania’s Motor Vehicle Financial Responsibility Law was the case of Farese v. Robinson, 2019 Pa. Super. 336 (Pa. Super. Nov. 8, 2019).

In Farese, the Superior Court addressed the somewhat recurring issue of whether a claim for future medical expenses in an automobile accident case must be reduced in accordance with the cost containment provisions found under Act 6, 75 Pa.C.S.A. Section 1797, of the MVFRL.

In this motor vehicle accident case, the jury entered a verdict in excess of $2.5 million, of which $900,000 was an award for future medical expenses. The defendant had objected at trial to the plaintiff being permitted to argue to the jury the total amount of alleged future medical expenses anticipated as a result of the accident, as opposed to the plaintiff being limited to only asserting an Act 6 reduced amount of such expenses.

On appeal, the court in Farese held, in what appears to be the first appellate decision of its kind, that future medical expenses need not be reduced in accordance with Act 6 before being presented to the jury at trial.

As such, in motor vehicle accident cases, plaintiffs will now be allowed to put into evidence the full amount of future medical expenses their experts claim that the plaintiff will allegedly incur if they continue to treat after the litigation is concluded or settled, as opposed to the reduced amounts. This decision did not alter the rule under Act 6 requiring that past medical expenses be reduced.

Intoxication Evidence

In 2019, the Pennsylvania Superior Court provided its latest pronouncement on the admissibility of intoxication evidence in motor vehicle accident cases. In Livingston v. Greyhound Lines, No. 318 EDA 2017 (Pa. Super. April 29, 2019 Colins, J., Lazarus, J., Kunselman, J.) (Op. by Colins, J.), the Superior Court reiterated the rule of law that evidence of alcohol or drug consumption by a person involved in an accident is admissible only where there is evidence that reasonably shows intoxication and unfitness to engage in the activity at issue at the time of the accident.

The Superior Court noted that even an admission by the tortfeasor of admitted alcohol or drug use is subject to being excluded from evidence where the plaintiff fails to present evidence of chemical testing sufficient to show intoxication, or where the Plaintiff fails to present any other evidence of impairment. 

Trends in Auto Law Cases Over the Past Year

It has been over a decade since the Koken decision was handed down and there is still no body of appellate decisions to provide guidance to the trial courts and the bar on how to handle the variety of issues that arise from the pleadings stage to trial in motor vehicle accident cases involving both a tortfeasor defendant and an insurance company co-defendant. The lack of appellate decisions may be due, in large part, to the fact that most of these cases are being resolved through ADR proceedings at the trial level.

A continuing trend to watch in post-Koken matters is whether the trial courts will allow these types of cases that are heading to trial to proceed as a single trial of all claims, or will instead bifurcate these cases into separate trials, with one the trial proceeding against the tortfeasor and a separate trial with a separate jury proceeding against the insurance company providing the UIM benefits. The primary rationale in favor of bifurcation is that the third-party tortfeasor defendant would be protected from having to sit before the jury with an insurance company as a co-defendant and face the inherent prejudice created by such a scenario.

In the absence of any concrete appellate guidance, the trial courts continue to struggle with this issue so much so that the answer to whether any given case will be bifurcated may depend upon in which county court the case is pending, and possibly even which county court judge is deciding the issue.

In one example of a bifurcation decision from the past year, Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas denied a tortfeasor defendant’s motion to bifurcate the trial of third-party negligence claims from the breach of contract and bad-faith claims asserted against the UIM carrier the post-Koken case of Pena v. Van Blargen and State Farm, No. 10185-CV-2016 (C.P. Luz. Co. Oct. 1, 2019).

A listing of some of the various county court decisions on this issue and other notable post-Koken issues can always be freely accessed on the post-Koken scorecard on the Tort Talk blog, which can be found at www.TortTalk.com.

Allegations of Recklessness/Punitive Damages

It has been long held under Pennsylvania law that punitive damages may only be pursued in motor vehicle accident cases involving outrageous facts. In Pennsylvania auto accident cases, punitive damages claims have largely been limited to cases involving DUI drivers, tractor trailer drivers, and, at times, to cases involving drivers who were using a cellphone at the time of an accident. For a recent decision of note in this regard from last year, see Santiago v. Yates, No. 2018-CV-4504 (C.P. Lacka. Co. Feb. 14, 2019 Nealon, J.).

There has recently developed two lines of decisions in Pennsylvania on whether allegations of recklessness should be stricken from complaints filed in ordinary motor vehicle accident cases. One line of Pennsylvania trial courts have ruled that, if there are not sufficient facts pleaded in the complaint to establish the outrageous conduct to support a punitive damages claim, then the allegations of recklessness should be stricken by way of preliminary objections.

The second line of cases, as evidenced in the decision in Nebesky v. Pagnotti, No. 2019-CV-3170 (C.P. Lacka. Co. Aug. 15, 2019 Gibbons, J.), hold that averments of recklessness are allegations pertaining to the state of mind of a defendant that, under the Rules of Civil Procedure, are permitted to be pleaded in a more liberal fashion. Courts ruling in this fashion will typically deny preliminary objections in this regard but also rule that the issue can be revisited at the summary judgment stage.

How a given court will rule on these types of preliminary objections will depend upon in which county the case is pending and how the judges in that county have ruled in the past.

Auto Law Cases to Watch

This article ends where it began. Just as they went after the household exclusion in the Gallagher line of cases, the plaintiffs bar has its sights set on cutting down the validity of the regular use exclusion. That exclusion holds that a carrier need not provide coverage when an insured was involved in an accident while operating a vehicle that was regularly available for the insured’s use but which was not covered under the insurance policy at issue.

The plaintiffs bar has been arguing, in part, that the application of the regular use exclusion also violates the statutory mandates requiring that the carrier secure executed forms for the rejection of stacked UM/UIM coverage from its insureds. Another argument has been made under the same public policy references that have proved successful with the Supreme Court in the past.

The defense bar rebuffed these arguments in the case of Barnhart v. Travelers, No. 2:19-CV-00523-MJH (W.D. Pa. Oct. 28, 2019 Horan, J.). Yet, in the case of Rush v. Erie Insurance Exchange, No. C-48-CV-2019-1979 (C.P. Northampt. Co. Oct. 1, 2019 Baratta, J.), the court accepted the plaintiff’s argument and denied a motion for judgment on the pleadings filed by the carrier with respect to a regular use exclusion.

It is anticipated that the plaintiffs bar may try to push either of these cases (and any other plaintiffs’ causes) up the appellate ladder to secure their desired ruling from the liberal and judicially activist Pennsylvania Supreme Court. It is anticipated that the plaintiffs bar will rely upon public policy arguments given that there are decades of precedent already on the books upholding the regular use exclusion. It remains to be seen in this regard whether the battered and beaten down doctrine of stare decisis will make a comeback or not.



Daniel E. Cummins is a partner in the Scranton law firm of Cummins Law where he focuses his practice in automobile accident litigation matters.

THE 2019 TORT TALK TOP TEN

Here is the Tenth Annual 2019 Tort Talk Top Ten--an annual listing of notable cases and important trends in Pennsylvania civil litigation law over the past year or so as highlighted in Tort Talk blog posts.

If you wish to view the actual Tort Talk post on any of the following cases or topics, or the actual Opinion, please go to TortTalk.com and type the name of the Plaintiff in the case in the Search Box in the upper right hand corner of the blog.  There should be a Link to the actual Opinion within the blog post itself.


10. Palmiter v. Commonwealth Health Systems, Inc., No. 19-CV-1315 (C.P. Lacka. Co. Nov. 22, 2019 Nealon, J.)

In a case of first impression, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of whether the Medical Marijuana Act creates an implied private cause of action or a medical assistant who was terminated by her health care employers for prescribed use of medical marijuana while not working in her place of employment. The court recognized such a cause of action and allowed the claim to proceed.


9. Lack of Appellate Guidance on Post-Koken Issues Continues

Despite the passage of well over a decade of time since the Koken decision was handed down in 2005, there is still a continuing trend of a lack of any concrete appellate guidance on any of the many novel issues created by this form of litigation from the pleadings stage to trial. The lack of appellate guidance is due to the fact that most of the cases in this area of law continue to be resolved by one form of ADR or another. The hope remains that those cases that do go up the appellate ladder will result in published decisions by the Superior Court and grantings of allocatur by the Supreme Court.

Here is a quick LINK to the Post-Koken Scorecard on Tort Talk.


8. Yanakos v. UPMC, No. 10 WAP 2018 (Pa. Oct. 31, 2019)


The Pennsylvania Supreme Court, in a 4-3 decision, ruled in favor of the Plaintiff’s argument that MCARE's statute of repose was unconstitutional. The rationale of the majority Opinion in Yanakos striking down the statute of repose under the MCARE Act was that the statute of repose was not substantially related to a governmental interest as was necessary to uphold the statute. The Court also found that the statute of repose in the MCARE Act violated the Pennsylvania Constitution's guarantee of open access to the Courts.


7. Livingston v. Greyhound Lines, Inc., No. 318 EDA 2017 (Pa. Super. April 29, 2019 Colins, J., Lazarus, J., Kunselman, J.) (Op. by Colins, J.)

In April of 2019, the Pennsylvania Superior Court provided its latest pronouncement on the law on the admissibility of intoxication evidence in civil litigation matters. The Court reiterated the rule of law that evidence of alcohol or drug consumption by a person involved in an accident is admissible only where there is sufficient evidence that reasonably shows intoxication and unfitness to engage in the activity at issue at the time of the accident.


6. Moran v. USAA, No. 3:18-cv-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.)

The court dismissed a Plaintiff’s bad faith claim without prejudice and leave to amend to correct certain issues with the Complaint. This is one of many Federal Court decisions evidencing a continuing trend towards forcing Plaintiffs’ to avoid conclusory allegations in bad faith matters and instead requiring the pleading of specific acts of alleged bad faith.  There were also a number of decisions handed down over the past year that confirmed that the extension of an alleged low ball offer followed by a settlement or an award of a much higher number does not necessarily equate to bad faith -- click HERE to view those Bad Faith - Low Ball Offer cases.


5. Sawyers v. Davis, 2019 Pa. Super. 219 (Pa. Super. Oct. 22, 2019 Bowes, J., Olson, J., Stabile, J.) (Op. by Bowes, J.) (Olson, J, dissenting)

The Pennsylvania Superior Court ruled that a trial court erred in dismissing the Plaintiff’s personal injury action against a defendant motorist for improper service.  Over the past year, a number of decisions have been handed down at both the trial court and appellate level analyzing the application of the Lamp v. Heyman line of cases and their progeny.  Click HERE to view a compilation of those cases.


4. Davis v. Volkswagen, No. 1405 EDA 2018 (Pa. Super. July 19, 2019 Bowes, J., McLaughlin, J., Stabile, J.) (Op. by McLaughlin, J.)(Stabile, J., Concurring)

The Pennsylvania Superior Court held that the Lehigh County Court of Common Pleas did not commit any error in a products liability case when it instructed the jury on both the consumer expectation test and the risk-utility test that the Pennsylvania Supreme Court established in the case of Tincher v. Omega-Flex.  The Superior Court ruled in this fashion even though the Plaintiff only litigated the case under the consumer expectation test. The Court found that, where the defense presented evidence that also implicated the risk-utility test, a jury instruction was warranted in that regard as well.


3. Farese v. Robinson, 2019 Pa. Super. 336 (Pa. Super. Nov. 8, 2019 Lazarus, J., Kunselman, J., Colins, J.)   (Dissenting Op. by Lazarus, J.).

In Farese, the Pennsylvania Superior Court held, in what appears to be the first appellate decision of its kind, that future medical expenses need not be reduced in accordance with Act 6 before being presented to the jury at trial in an auto accident case. This decision did not impact the rule that past medical expenses incurred in motor vehicle accident cases have to be reduced before being presented to a jury.


2. BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2019)

The Pennsylvania Supreme Court offered its latest pronouncement on attorney work product issues in June of 2019. The Court addressed the issue of whether a law firm’s sending of pre-litigation emails to a public relations firm served to waive the attorney work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, in order to qualify as a privileged person under the doctrine. The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner which significantly increased the likelihood that an adversary or anticipated adversary would obtain it.

1. Gallagher v. GEICO, 201 A.3d 131 (Pa. Jan. 23, 2019)

The Pennsylvania Supreme Court held that the Household Exclusion contained in a Geico policy violated the MVFRL was invalid because it served as a “de facto waiver” of stacked coverage. The Court suggested that its decision in Gallagher not only applied to that case, but should also be read to eradicate the Household Exclusion across the board.  While a number of subsequent Federal Court decisions served to expand the scope of the Gallagher decision, at least one more recent trial court decision (Nationwide v. Ryman) has suggested that the Gallagher decision should be limited to its facts.

College Held Not Responsible for Acts of Inebriated Fraternity Member Under Facts Alleged

In the case of Rose v. Vilmatelo, No. 2018-SU-450 (C.P. Adams Co. April 12, 2019 George, J.), the court addressed Preliminary Objections filed by Gettysburg College seeking the dismissal of a Plaintiff’s personal injury claim arising out of allegations that the Plaintiff, a college student, was injured by an allegedly inebriated participant at a fraternity function on campus.  

The Plaintiff alleged that the college was responsible for the acts of its students and that the college breached its duty to supervise the actions of the fraternity.

The court dismissed the Plaintiff’s Complaint against the college based upon the case of Alumni Ass’n v. Sullivan, 572 A.2d 1209 (Pa. 1990) in which it was held that college students were no longer minors, but rather adults who were capable of protecting their own self interests.  As such, under that case, a college was found not to have any duties in loco parentis with respect to its students.  

The trial court in this matter rejected the Plaintiff’s efforts to get around the Sullivan case by way of the Plaintiff’s arguments that (1) the college was allegedly aware that alcohol consumption was a problem on campus, (2) that the college had previously enacted rules requiring fraternities to notify the college administration of any events involving alcohol and, (3) in that the college required the fraternities to have someone oversee conduct at such events.   The Plaintiff alleged that, by enacting these rules, the college had assumed a special duty to control the activities at the event.  

The trial court in this Rose case rejected these arguments and noted that prior case law in Pennsylvania had rejected these types of arguments.   The court noted that, by simply adopting social policies for campus activities, the college did not create an in loco parentis type of duty on the part of the college.   The court found that the college’s social policy and rules were not an assumption of a duty, but rather a policy statement that adult students should be aware of their own behavior and act accordingly.  

The court in this Rose case emphasized that the Plaintiff’s Complaint did not contain any allegations that the college itself was a social host.   

The Complaint also did not allege that representatives of the college were present at this fraternity function or that any college representative assisted in any way in procuring or distributing alcohol to the attendees of the event.

Based upon this rationale, the court sustained the Preliminary Objections asserted by the Defendant, Gettysburg College.  

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 16, 2019). 

Latest Pennsylvania Superior Court Decision on the Admission of Intoxication Evidence in a Personal Injury Matter

In the case of Livingston v. Greyhound Lines, Inc., No. 318 EDA 2017 (Pa. Super. April 29, 2019 Colins, J., Lazarus, J., Kunselman, J.) (Op. by Colins, J.), the court affirmed the entry of a judgment in favor of the Plaintiff following post-trial motions in a motor vehicle accident matter. 

On appeal, the appellate court noted that evidence of alcohol or drug consumption by a person involved in an accident is admissible in a personal injury action only where there is evidence that reasonably shows intoxication and unfitness to engage in the activity at issue at the time of the accident.   

The Superior Court noted that even an admission by the tortfeasor of admitted alcohol or drug use is subject to being excluded from evidence where the Plaintiff fails to present evidence of chemical testing sufficient to show intoxication, or where the Plaintiff fails to present any other evidence of impairment. 

On the issue of punitive damages, the court reiterated a general rule of law that such damages can be awarded against the Defendant only if the Plaintiff shows that the Defendant had a subjective appreciation of the risk of harm to which the Plaintiff was exposed and that the Defendant acted, or failed to act, in conscious disregard of that risk of injury.   The court noted that the fact that a Defendant knew of a possibility of accidents and did not undertake additional safety measures is not sufficient in and of itself to support a claim for punitive damages.  

Conversely, the court also noted that, in a case of a defendant who does not admit to knowledge of a danger, punitive damages may still be pursued where other circumstantial evidence can prove that the defendant had subjective knowledge of the risk of harm.  

In this matter, there is no evidence in the record to show that a corporate defendant consciously disregarded the risk of driver drowsiness. However, the court noted that a corporate defendant can be vicariously liable for the reckless conduct of an employee without proof that the employer’s conduct itself satisfied the standard of punitive damages.  

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.

The 2017 TORT TALK TOP TEN

Here is the annual 2017 Tort Talk Top Ten--an annual listing of notable cases and important trends in Pennsylvania civil litigation law over the past year as highlighted in Tort Talk blog posts:

1.         Elements of a Bad Faith Claim

In its decision in the bad faith case of Rancosky v. Washington Nat'l Ins. Co., No. 28 WAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court, for the first time, considered the elements of a bad faith claim under 42 Pa.C.S.A. Section 8371.

The Supreme Court adopted the two-part test enunciated in the case of Terletsky v. v. Prudential Prop. & Cas. Ins. Co., 649 A.2d 680 (Pa. Super. 1994), which provides that a plaintiff must present clear and convincing evidence of (1) that the carrier did not have a reasonable basis for denying benefits under the policy, and (2) that the carrier knew of or recklessly disregarded its lack of a reasonable basis.

The Pennsylvania Supreme Court went on to confirm that evidence of a motive of self-interest or ill will was not a prerequisite for a Plaintiff to prevail on a statutory bad faith claim. 

The Majority Opinion written by Justice Baer can be reviewed HERE.

Chief Justice Saylor's Concurring Opinion can be viewed HERE.

Justice Wecht's Concurring Opinion can be viewed HERE.

2.         Evidence of Intoxication

In the case of Coughlin v. Massaquoi, No. 32 EAP 2016 (Pa. Sept. 28, 2017), which arose out of a motor vehicle v. pedestrian accident matter, the Pennsylvania Supreme Court declined to adopt a bright-line rule of predicating the admissibility of a person's blood alcohol content (BAC) on the existence of independent corroborating evidence of intoxication.

The Pennsylvania Supreme Court held that the admissibility of BAC evidence remains within the trial court's discretion based upon the general rules of admissibility found in the Pennsylvania Rules of Evidence 401-403, and the trial court's related assessment of whether the evidence establishes the party's unfitness to act in light of the alleged intoxication.

The Court's Majority Opinion, Concurring Opinion, and Dissenting Opinion can be viewed at this LINK.

3.         Attorney-Client Privilege

In the case of BouSamra v. Excela Health, 2017 Pa. Super. 66 (Pa. Super. March 13, 2017 Bowes, Stabile, Musmanno, J.J.) (Op. by Bowes, J.), the Pennsylvania Superior Court affirmed the granting of a motion to compel surrounding a memorandum prepared by counsel for the defendant that was shared with an outside public relations firm.

The court found that the attorney/client privilege for that memorandum was waived when the client shared the Memorandum with the outside public relations firm.  It was noted that the public relations firm was not a part of the team offering legal advice.  

The court also found that the work product protection was waived for the same reason.  

In its opinion, the Pennsylvania Superior Court stated that the waiver doctrine analysis is essentially the same for both the attorney/client privilege and the work product privilege.

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

4.         Use of Powerpoint at Trial

In the case of W.C. v. Janssen Pharmaceuticals, Inc., 2017 Pa. Super. 356 (Pa. Super. Nov. 13, 2017 Panella, Ransom, Fitzgerald, J.J.) (Op. by Panella, J.), the court ruled that allowing counsel to use powerpoint slides as a visual aid during closing argument was not an abuse of discretion by the trial court.   This was particularly so given that the court found that the slides did not misrepresent the evidence presented at trial.

The Superior Court also held that the powerpoint slides were permissible in the Closing Argument even though the slides had not been admitted into evidence.

Notably, the court also held that opposing counsel had no right to review the materials used in an opponent’s closing argument prior to the presentation of the same.  

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

5.         Dead Man’s Rule

The Pennsylvania Superior Court’s provided its latest take on the Dead Man’s Statute, 42, Pa. C.S.A. 5930 in the case of Davis v. Wright, 2017 Pa. Super. 48 (Pa. Super. Feb. 27, 2017 Shogan, Ott, J.J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

In this matter, arising out of a fatal motor vehicle accident, the Pennsylvania Superior Court found that Dead Man’s Statute was not waived by the Defendant’s participation in discovery when no depositions or Interrogatories were completed.  

The court additionally noted that this defense under the Dead Man’s Statute did not need to be raised as an affirmative defense in a New Matter pursuant to Pa. R.C.P. 1030 in order to be preserved.  

Moreover, the court otherwise noted that the issues of negligence in this automobile accident case could not be established by the testimony of a police officer who did the accident report but who had no independent recollection of the incident.   

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

6.         Statute of Limitations for a UM Arbitration Case

In the case of Bristol v. Erie, No. 124 MAP 2016 (Pa. Nov. 22, 2017) (Maj. Op. by Mundy, J.) (Wecht, J., Dissenting) the Pennsylvania Supreme Court held that the statute of limitations in an uninsured motorist case does not begin to run until there is an alleged breach of the insurance contract, i.e., the denial of a claim or a refusal to arbitrate.

 This was a 6-1 decision with Justice David Wecht dissenting on procedural grounds.

The Court delineated the specific issue before it as involving the question of when the statute of limitations begins to runs for a court action in an uninsured (UM) motorist claim arising out of an automobile insurance policy containing an arbitration agreement. 

The Pennsylvania Supreme Court noted that this was an issue of first impression in its Court.

The Bristol decision reverses the Pennsylvania Superior Court's previous ruling in Hopkins v. Erie, which held that the statute of limitations in an uninsured motorist (UM) benefits claim begins to run on the date of the accident.

In its analysis, the Pennsylvania Supreme Court noted that the mandates of Pennsylvania statute of limitations law provide that the statute of limitations begins to run from the time a cause of action accrues or arises. 

The Supreme Court noted that a cause of action in a UM context accrues or arises when a carrier is alleged to have breached its contract of insurance.  The Court more specifically held that an uninsured motorist (UM) claim begins when a carrier denies the claim or refuses to arbitrate.

Given that the carrier had not denied coverage or refused to arbitrate in this particular case, the court ruled that the lower courts had erred in granting summary judgment in favor of the carrier on its statute of limitations argument.

The Majority Opinion from Bristol can be read HERE.

Justice Wecht's Dissenting Opinion can be viewed HERE.

7.         Cell Phone Use in a Motor Vehicle Accident

Another recurring issue in civil litigation matters that continued over the past year is the extent to which cell phone use by a defendant during the course of an accident can support a claim for punitive damages.

In a detailed Order issued by Judge Kimberly J. McFadden of the Northampton County Court of Common Pleas in the case of Figueroa v. Ferraira, No. C-48-CV-2017-833 (C.P. Northampton Co. June 8, 2017 McFadden, J.), the court allowed a claim punitive damages to proceed beyond the Preliminary Objections stage in a case where the Plaintiff alleged that the Defendant rear ended the Plaintiff's vehicle at a red light at an excessive rate of speed and while texting.

The court noted that the defense retained the right to revisit the issue at the summary judgment stage should it be determined that the Plaintiff had not produced evidence in support of this claim.

Anyone wishing to review this decision may click this LINK.

In the Federal Court case  of Knecht v. Balanescu, No. 4:16-CV-00549 (M.D. Pa. Oct. 30, 2017 Mehalchick, Mag. J.), the court held that evidence of a plaintiff’s cell phone use and texting was sufficiently close to the accident as to be admissible at trial.

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

8.         Limited Tort

In its latest review of limited tort law in the case of Vetter v. Miller, 2017 Pa. Super. 64 (Pa. Super. March 10, 2017) (Ransom, J., Ford Elliot, P.J.E., Stephens, P.J.E.) (Op. by Ransom, J.), the Pennsylvania Superior Court affirmed the trial court's decision that a Plaintiff's insomnia did not amount to a serious impairment of a body function for a limited tort Plaintiff under the facts presented.  

This decision was also notable for the Pennsylvania Superior Court’s analysis of what types of motor vehicle accident related criminal charges may be admissible in a subsequent civil case.   The court noted that all motor vehicle code violations are not of equal gravity.  

The court in Vetter more specifically noted that, while evidence of a conviction of driving while intoxicated may be admissible if supported by ample evidence of intoxication, a guilty plea of driving with a suspended license was only a summary offense that should not have been admitted in the court below.

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

9.         Post-Koken Issues

A number of recurring issues in Post-Koken automobile accident matters continued to be litigated across the Commonwealth of Pennsylvania. 

There continues to be an almost equal split of authority amongst the trial courts across Pennsylvania on whether a Post-Koken litigation should be severed or bifurcated into two separate matters, one being the third party negligence action and the second being the breach of contract UIM litigation. 

The trend in the non-bad faith cases appears to be to allow the cases to remain together during the course of discovery but there remains a split of authority on whether the cases should be bifurcated for purposes of trial.

To date, other than the Pennsylvania Superior Court case of Stepanovich v. McGraw and State Farm, which touched upon the issue but did not definitively decide the issue, there has been no appellate guidance on the issue of severance or bifurcation.  The Stepanovich decision suggests, but did not decide, that Post-Koken claims could be tried together. 

Unfortunately, in 2014, the Pennsylvania Supreme Court inexplicably denied allocatur in Stepanovich, thereby squandering a great opportunity to provide the bench and the bar with much needed guidance on important Post-Koken issues.

In Post-Koken cases involving bad faith claims, there is still no appellate guidance on severance or bifurcation and/or stay orders relative to the bad faith claims.  There is a split of authority amongst the trial courts, but the federal courts seem to be trending towards denying motions to sever and stay bad faith claims.

Please check out the Tort Talk Post-Koken Scorecard at this LINK to review the cases in this regard.

10.       Jury Instructions in Post-Tincher Products Liability Cases

Here is a LINK to a set of Products Liability Suggested Standard Jury Instructions drafted by members of the Products Liability Committee of the Pennsylvania Defense Institute and which has been published in the October, 2017 edition of Counterpoint, a PDI publication.   The Committee was led in this regard by William J. Ricci, Esquire, C. Scott Toomey, Esquire, and James M. Beck, Esquire.

These suggested jury instructions were drafted in response to the proposed instructions for products cases issued in the summer of 2016 by the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions.


The debate over proper instructions for products cases arises out of the differing opinions as to the import and analysis of the Tincher v. Omega Flex case.

ARTICLE: Precedent Has a Way of Repeating Itself: A Year-End Review of Cases, Trends

The below article of mine recently appeared in the December 14, 2017 edition of the Pennsylvania Law Weekly and is republished here with permission:

 

Precedent Has a Way of Repeating Itself: A Year-End Review of Cases, Trends
 

By Daniel E. Cummins
Pennsylvania Law Weekly
December 14, 2017

Another year of litigation has come to a close. Given that precedent has a way of repeating itself here’s a look back at notable decisions from the past year.

Elements of Bad Faith Claim

In its decision in the bad faith case of Rancosky v. Washington National Insurance, No. 28 WAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court, for the first time, considered the elements of a bad faith claim under 42 Pa.C.S.A. Section 8371.

In Rancosky, the Supreme Court adopted the two-part test enunciated in the case of Terletsky v. v. Prudential Property & Casualty Insurance, 649 A.2d 680 (Pa. Super. 1994), which provides that a plaintiff must present clear and convincing evidence of: that the carrier did not have a reasonable basis for denying benefits under the policy, and that the carrier knew of or recklessly disregarded its lack of a reasonable basis.

The Pennsylvania Supreme Court went on to note that evidence of a motive of self-interest or ill will was not a prerequisite for a plaintiff to prevail on a statutory bad faith claim.

Dead Man’s Rule

The Pennsylvania Superior Court provided its latest take on the Dead Man’s Statute, 42, Pa. C.S.A. 5930, in the case of Davis v. Wright, 2017 Pa. Super. 48 (Pa. Super. Feb. 27, 2017 Shogan, Ott, J.J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

In this matter, arising out of a fatal motor vehicle accident, the Pennsylvania Superior Court found that Dead Man’s Statute was not waived by the defendant’s participation in discovery when no depositions or Interrogatories were completed.

The court additionally noted that this defense under the Dead Man’s Statute did not need to be raised as an affirmative defense in a new matter pursuant to Pa. R.C.P. 1030 in order to be preserved.

Moreover, the court otherwise noted that the issues of negligence in this automobile accident case could not be established by the testimony of a police officer who did the accident report but who had no independent recollection of the incident.

Evidence of Intoxication

In the case of Coughlin v. Massaquoi, No. 32 EAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court declined to adopt a bright-line rule of predicating the admissibility of a person’s blood alcohol content (BAC) on the existence of independent corroborating evidence of intoxication.

The Coughlin case arose out of a motor vehicle versus pedestrian accident.

The Pennsylvania Supreme Court held that the admissibility of BAC evidence remains within the trial court’s discretion based upon the general rules of admissibility found in the Pennsylvania Rules of Evidence 401-403, and the trial court’s related assessment of whether the evidence establishes the party’s unfitness to act in light of the alleged intoxication.

Use of Powerpoint at Trial

The use of visually stimulating powerpoint exhibits at trial has become the norm in the digital age.

In the case of W.C. v. Janssen Pharmaceuticals, 2017 Pa. Super. 356 (Pa. Super. Nov. 13, 2017, Panella, Ransom, Fitzgerald, J.J.) (Op. by Panella, J.), the court ruled that allowing counsel to use powerpoint slides as a visual aid during closing argument was not an abuse of discretion by the trial court. This was particularly so given that the court found that the slides did not misrepresent the evidence presented at trial.

The Superior Court also held that the powerpoint slides were permissible in the closing argument even though the slides had not been admitted into evidence.

Notably, the court also held that opposing counsel had no right to review the materials used in an opponent’s closing argument prior to the presentation of the same.

Cellphone Use

Another recurring issue in civil litigation matters is the extent to which cellphone use by a defendant during the course of an accident can support a claim for punitive damages.

In a detailed order issued by Judge Kimberly J. McFadden of the Northampton County Court of Common Pleas in the case of Figueroa v. Ferraira, No. C-48-CV-2017-833 (C.P. Northampton Co. June 8, 2017, McFadden, J.), the court allowed a claim punitive damages to proceed beyond the preliminary objections stage in a case where the Plaintiff alleged that the defendant rear-ended the plaintiff’s vehicle at a red light at an excessive rate of speed and while texting.

The court noted that the defense retained the right to revisit the issue at the summary judgment stage should it be determined that the plaintiff had not produced evidence in support of this claim.

Attorney-Client Privilege

The attorney-client privilege and the attorney work product doctrine were both reviewd in the case of BouSamra v. Excela Health, 2017 Pa. Super. 66 (Pa. Super. March 13, 2017, Bowes, Stabile, Musmanno, J.J.) (Op. by Bowes, J.). The Pennsylvania Superior Court affirmed the granting of a motion to compel the production of a memorandum prepared by counsel for the defendant that was shared with an outside public relations firm.

The court found that the attorney-client privilege for that memorandum was waived when the client shared the Memorandum with the outside public relations firm. It was noted that the public relations firm was not a part of the team offering legal advice.

The court also found that the work product protection was waived for the same reason.

In its opinion, the Pennsylvania Superior Court stated that the waiver doctrine analysis is essentially the same for both the attorney-client privilege and the work product privilege.

Limited Tort

In the case of Vetter v. Miller, 2017 Pa. Super. 64 (Pa. Super. March 10, 2017) (Ransom, J., Ford Elliot, P.J.E., Stephens, P.J.E.) (Op. by Ransom, J.), the court affirmed the trial court’s decision that a plaintiff’s insomnia did not amount to a serious impairment of a body function for a limited tort the plaintiff under the facts presented.

This decision was also notable for the Pennsylvania Superior Court’s analysis of what types of motor vehicle accident related criminal charges may be admissible in a subsequent civil case.   The court noted that all motor vehicle code violations are not of equal gravity.

For example, the court noted that, while evidence of a conviction of driving while intoxicated may be admissible if supported by ample evidence of intoxication, a guilty plea of driving with a suspended license was only a summary offense that should not have been admitted in the court below.

Post-Koken Issues

A number of recurring issues in post-Koken automobile accident matters continued to be litigated across the commonwealth of Pennsylvania.

There continues to be an almost equal split of authority amongst the trial courts across Pennsylvania on whether a post-Koken litigation should be severed or bifurcated into two separate matters, one being the third party negligence action and the second being the breach of contract UIM litigation.

The trend in the non-bad faith cases appears to be to allow the cases to remain together during the course of discovery but there remains a split of authority on whether the cases should be bifurcated for purposes of trial.

To date, other than the Pennsylvania Superior Court case of Stepanovich v. McGraw and State Farm, which touched upon the issue but did not definitively decide the issue, there has been no appellate guidance on the issue of severance or bifurcation. The Stepanovich decision suggests, but did not decide, that post-Koken claims could be tried together.

In post-Koken cases involving bad faith claims, there is still no appellate guidance on severance or bifurcation and stay orders relative to the bad faith claims. There is a split of authority among the trial courts, but the federal courts seem to be trending toward denying motions to sever and stay bad faith claims.

A Look Ahead into 2018

As this year comes to an end, there are also important rule changes and potential important decisions to anticipate in 2018.

One decision to keep an eye out for would be the one in the Pennsylvania Supreme Court case of Gallagher v. Geico Indemnity, No. 87 WAL 2017 (Pa. Aug. 8, 2017). The court is expected to address issues pertaining to the validity of household exclusions and stacking issues with respect to automobile insurance policies.

In the case of Nicolaou v. Martin, No. 58 MAL 2017 (Pa. Aug. 18, 2017), the Pennsylvania Supreme Court issued an order agreeing to hear the appeal of a woman whose case against medical providers over an alleged misdiagnosis of her Lyme disease was dismissed partly because of Facebook posts indicated that she knew that she was suffering from the disease for years before filing the suit.

The court has agreed to address the more specific issue of whether the plaintiff’s claims met an exception to the discovery rule related to the statute of limitations where the plaintiff “did not and was financially unable to, confirm [the defendant’s] negligent misdiagnosis until final medical testing confirmed she had Lyme disease.”

A split Pennsylvania Superior Court panel previously ruled in this case that the plaintiff’s claims were barred by the two-year statute of limitations.

Civil litigators should also be aware that the Public Access Policy of the Unified Judicial System of Pennsylvania is about to go into effect and that they may face sanctions if they do not comply with the mandates of this new policy pertaining to the filing of documents with the court.

By way of background, with the Pennsylvania state court systems gradually moving over into the digital age, the Administrative Office of Pennsylvania Courts (AOPC) has taken steps to address the need to protect individuals from identity theft and from disclosure of private information.

Effective Jan. 8, 2018, the Public Access Policy of the Unified Judicial System of Pennsylvania will require attorneys to file a certification, with every document filed with the court, that confirms that sensitive, private, and confidential information has been redacted from the document.

The certification that shall accompany each filing is required to be in substantially the following form: “I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than nonconfidential information and documents.”

Also, if confidential information is contained within the court filing, or in documents attached to the court filing, other certification documents will have to be filed as well. More information on this new policy may be found on the AOPC’s website or at a number of CLE courses being held around the commonwealth.

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.  Attorney Cummins also provides Mediation Services at www.CumminsMediationServices.com. Contact him at dancummins@comcast.net.