Trial Court Gives Lessons on Medical Malpractice Complaint Drafting

In the case of Dawes v. The Williamsport Home, No. 2025-CV-00381 (C.P. Lyc. Co. June 6, 2025 Carlucci, J.), the court granted in part and denied in part Preliminary Objections filed against a Plaintiff’s claim in a medical malpractice case arising out of alleged negligent care regarding the Plaintiff’s thoracic surgical wound.

According to the Opinion, the court denied the Defendant’s demurrer to the Plaintiffs’ claim for punitive damages but still directed the Plaintiff to file an Amended Complaint which either deletes any claim for punitive damages or sets forth sufficient material allegations in support of the same.

Relative to any claims against any agents or employees of the medical Defendants the court directed that the Plaintiff’s Amended Complaint should limit allegations regarding the acts or omissions by a Defendant or its agent or employees to that conduct that the Plaintiff contends was a substantial factor in causing the Plaintiff’s injuries. In this regard, the court directed the Plaintiff to not include any extraneous allegations not pertinent to the causation issues. 

The court also required the Plaintiff to provide additional factual support and allegations on the claims for corporate liability.

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Source: “The Legal Intelligencer Common Pleas Case Alert,” www.Law.com (Aug. 7, 2025).

No Duty of Care Created by Simply Giving a Thumbs Up To Proceed With Cutting Down a Tree

In the case of Miller v. Kinley, No. 22-00349 (C.P. Lyc. Co. June 18, 2024 Carlucci, J.), the court granted a Defendant summary judgment based on a finding that simply given a Plaintiff a “thumbs up” signal during the course of cutting down a tree did not create a duty of care by that Defendant when the tree that the Plaintiff was cutting fell on the Plaintiff.

In this case, the Plaintiff alleged that the Defendants had granted him permission to cut down trees on their property. The Plaintiff alleged that one Defendant, who had transported the Plaintiff to the property, agreed to assist in the removal of the trees by acting as a spotter and a safety coordinator.

The court noted that the Plaintiff failed to support this allegation with his deposition testimony.

The Defendant at issue filed a Motion for Summary Judgment. The court found that the Defendant was entitled to summary judgment because there was no genuine issue of material fact as to any duty owed by that Defendant to the Plaintiff. The court found that no reasonable jury could find that, by giving the Plaintiff a “thumbs up” signal, that Defendant assumed as duty of care to ensure that the Plaintiff safely cut down the tree and stay out of its way as it fell.

Judge Carlucci noted that, under the common law of Pennsylvania, absent a special relationship between the parties, there is no duty to control the conduct of a third party to protect another from harm.


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Source: “The Legal Intelligencer Common Pleas Case Alert” Law.com (Aug. 22, 2024).

Issues of Fact Preclude Summary Judgment in Case of Fall Through Porch Railing

In the case of Rockey v. Stearns, No. CV-2022-00791 (C.P. Lyc. Co. Feb. 29, 2024 Carlucci, J.), the court denied a Defendant’s Motion for Summary Judgment in a case where a Plaintiff allegedly fell off of a porch when the railing broke loose from a structural post and collapsed.

The court denied the Motion for Summary Judgment after finding that there were genuine issues of material fact to be considered by a jury.

More specifically, the court noted that the fact that the railing collaposed allegedly under only a light load, and given the condition of the railing as described by the Plaintiffs, there was support in the records that a jury could find that the railing was in a defective condition.

The court also noted that, the fact that the railing had been repaired earlier, and that the homeowner had owned the home for forty (40) years, supported a possible conclusion by a jury that the homeowner had either actual or constructive notice of the allegedly defective condition of the railing.

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Source: Law.com, “The Legal Intelligencer Common Pleas Case Alert” (June 5, 2024).

Court Addresses Proper Method of Serving Out-of-State Defendants

In the case of Morgan v. Compton, No. CV-22-01100 (C.P. Lyc. Co. Carlucci, J.), the court found that a pro se Defendant satisfied the three prongs required to open a default judgment entered against him on a Plaintiff’s Complaint for personal injuries.

According to the Complaint, the parties were formerly in a romantic relationship. With regards to that relationship, the Plaintiff filed a three (3) Count Complaint alleging various personal injury allegations against the Defendant, who resided in California.

The court confirmed that the Plaintiff mailed the Complaint to the Defendant by certified mail but the certified mail was returned marked “unclaimed.”

The Plaintiff then mailed the Complaint to the Defendant by regular mail, which was not returned.

Thereafter, the Plaintiff mailed the Defendant a Notice of Intention to take a Default Judgment by first class mail and certified mail. The certified mail envelope was returned as unclaimed.

No responsive pleading was filed by the Defendant thereafter. A default judgment was then entered.

When the Plaintiff requested a trial on damages, the Defendant attended a conference by telephone and advised the court that he intended to defend the case.

Thereafter, the Defendant filed a Petition to Open the Default Judgment and the court held a hearing by Zoom. The Defendant claimed that he mailed a written response to the Complaint but that filing did not appear in the court file.

Judge Carlucci ruled that Pa. R.C.P. 4003 and 4004 governed service by mail on out-of-state parties. Under those Rules, if service by mail is returned as unclaimed, then the Plaintiff must make service by another means that does not include ordinary mail.

The court found that, at the time the default judgment was entered, the court lacked jurisdiction over the Defendant due to a lack of any completion of service of process.

The court also found that the Defendant had promptly filed a Petition to Open a Default Judgment, had explained the reasons for the delay due to the improper service, and had alleged not only a defense of improper service under Rule 403 but had also denied the allegations in the Complaint.

As such, the court granted the Defendant’s Petition to Open the Default Judgment and the ordered the Defendant to file an Answer within twenty (20) days.

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Source: Law.com, “The Legal Intelligencer Common Pleas Case Alert” (May 22, 2024).

Source of image:  Photo by Abstrakt XXcelence studios on www.pexels.com.

Leash That Puppy: Violation of Dog Law Amounts To Negligence Per Se, But Plaintiff Must Still Prove Causation

In the case of Goodell v. Stroble, No. 22-00906 (C.P. Lyc. Co. July 26, 2023 Carlucci, J.), the court granted in part and denied in part a Plaintiff’s Motion for Summary Judgment in a dog bite case.

According to the Opinion, the Defendant dog owner attended an estate sale. The subject incident occurred when the Defendant was putting her purchases in her vehicle and her dog jumped out of the vehicle and allegedly attacked the nearby Plaintiff.

The Plaintiff filed a Motion for Summary Judgment arguing that the Defendant’s failure to restrain her dog on a leash or within the vehicle violated the Dog Law, making the Defendant negligent as a matter of law on a negligence per se basis.

While the court agreed that Pennsylvania law requires owners to control their dogs and that a deliberate violation of the Dog Law does constitute negligence per se, claims of absolute liability as a result can still be defended if a Defendant provides an appropriate defense.

In this regard, the court noted that there still remained the crucial question as to whether or not the dog owner’s negligence was the proximate cause of the Plaintiff’s injuries. The court explained that proximate cause refers to a direct link between a Defendant’s actions and a Plaintiff’s harm.

The court emphasized that the question of proximate cause generally remains a question to be decided by a jury.

As such, the court granted the Plaintiff’s Motion for Summary Judgment in part and denied it in part. More specifically, the court ruled that the Defendant’s conduct in this case was negligent per se under the Dog Law violation. However, the motion was denied in part on the question of proximate causation.

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Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 15, 2023).

Source of image:  Photo by Blue Bird on www.pexels.com.

Plaintiff Granted Leave to Amend To Try To Plead Punitive Damages in a Dog Bite Case

In the case of Jennings v. Lycoming County SPCA, No. CV23-00512 (C.P. Lyc. Co. July 20, 2023 Carlucci, J.), the court struck a Plaintiff’s claim for punitive damages in a dog bite but allowed the Plaintiff the right to amend.

According to the Opinion, the Plaintiff was in the lobby of a local SPCA when she was allegedly attacked by a Terrier named “Peanut.” 

The Plaintiff alleged that the dog had been previously adopted by a family, but returned to the SPCA, after biting a child in that family. The Plaintiff also alleged that the dog previously bit a SPCA employee and that, therefore, the SPCA had actual knowledge that the dog was dangerous.

In his Opinion, Judge Carlucci noted that he was not satisfied that the facts alleged in the Plaintiff's Amended Complaint were sufficient to show that the Defendant's conduct demonstrated a reckless indifference to the interests of others.  However, as noted, the Court granted the Plaintiff leave to try again in another Amended Complaint.    

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 15, 2023).

Photo by Victor Grabarczyk on www.unsplash.com.