This is a “heads-up” for your Pike County cases from Tort Talk. As a former law clerk in the Pike County Court of Common Pleas for now Senior Judge Harold A. Thomson, Jr., I like to follow the court's decisions that come out of that county in the very Northeastern corner of Pennsylvania where my career began.
The Pike County Court of Common Pleas has recently issued a number of decisions, including Oliver v. Mazarul, No. 1374-2010-Civil (Pike Co. 2011, Chelak), in which both current Judges, President Judge Joseph Kameen and Judge Gregory Chelak, have indicated that the Pike County Court of Common Pleas has an “established policy of, in general, granting Preliminary Objections to untimely Preliminary Objections.”
The court has noted that Pa. R.C.P. 1026(a) requires Preliminary Objections to be filed within twenty (20) days of the service of a Complaint. When a party files a Preliminary Objections after the deadline, that party bears the burden of demonstrating just cause for the delay in filing the objections. The Court has cited Gale v. Mercy Medical Center, 698 A.2d 647 (Pa. Super. 1997) to support its strict stance on this issue.
Accordingly, if you intend to file Preliminary Objections in Pike County, you better get them filed within twenty (20) days of the Complaint or it will likely be summarily dismissed as untimely unless you can show a just cause for the delay.
Showing posts with label Judge Chelak. Show all posts
Showing posts with label Judge Chelak. Show all posts
Friday, February 11, 2011
Thursday, September 16, 2010
Superior Court Reverses Trial Court's Grant of Summary Judgment Based Upon Trivial Defect Doctrine in Trip and Fall Case
You may recall that I previously reported on the Pike County Court of Common Pleas Decision on granting summary judgment to the Defendant under the trivial defect doctrine in the case of Melchiorre v. Lord's Valley Xtra Mart back in June of 2009.
That decision was appealed by the Plaintiff and, on September 8, 2010, the Pennsylvania Superior Court handed down its “non-precedential decision” reversing the trial court granting of summary judgment in a 2 to 1 decision. See Melchiorre v. Lourdes Valley Xtra Mart, No. 2038 E.D.A. 2009 (Pa. Super. Sept. 8, 2010, Gantman, Shogan, and Mundy, J.J.) (Gantman, J., dissenting).
In its non-precedential opinion, the Superior Court quoted extensively from the case Mull v. Ickes, 994 A.2d 1137 (Pa. Super. 2010) for the law surrounding trivial defects.
The Superior Court's Opinion reminds us that Melchiorre involved a plaintiff who tripped on the lip of a concrete pad that was surrounded by asphalt at a gas station. The trial court in Pike County had ruled that, based upon its review of the record and the photographs, “the one inch deviation is clearly trivial, and that, as a matter of law, [the defendants] were not negligent for permitting its existence.”
The Superior Court disagreed and noted that, its review of the records, in a light most favorable to the non-moving Plaintiff, compelled the conclusion “that the defect in this matter was not so trivial as to authorize summary judgment as a matter of law.”
The Superior Court noted that the deviation between the concrete pad and the surrounding asphalt, as depicted in the photographs, reflected that the 1-inch variation was not consistent around the concrete pad, but rather, the difference between the asphalt and concrete in other areas of the concrete pad may have been more or less than one inch at different places. Accordingly, the Superior Court found that the evidence established “that the defect was not obviously trivial as there is no definite or mathematical rule that determines when a defect is trivial.”
Finding that the evidence was sufficient to establish genuine issues of material fact that must be resolved by a jury, the Superior Court reversed the entry of summary judgment and remanded the case back to the Pike County Court of Common Pleas for further proceedings. As noted, Superior Court Judge Gantman dissented from this decision without any opinion.
I thank the prevailing plaintiff’s attorney, Gene Goldenziel of the Scranton law firm of Needle, Goldenziel, & Pascale, for forwarding this unpublished decision to my attention.
Anyone desiring a copy of this opinion, may contact me at dancummins@comcast.net.
That decision was appealed by the Plaintiff and, on September 8, 2010, the Pennsylvania Superior Court handed down its “non-precedential decision” reversing the trial court granting of summary judgment in a 2 to 1 decision. See Melchiorre v. Lourdes Valley Xtra Mart, No. 2038 E.D.A. 2009 (Pa. Super. Sept. 8, 2010, Gantman, Shogan, and Mundy, J.J.) (Gantman, J., dissenting).
In its non-precedential opinion, the Superior Court quoted extensively from the case Mull v. Ickes, 994 A.2d 1137 (Pa. Super. 2010) for the law surrounding trivial defects.
The Superior Court's Opinion reminds us that Melchiorre involved a plaintiff who tripped on the lip of a concrete pad that was surrounded by asphalt at a gas station. The trial court in Pike County had ruled that, based upon its review of the record and the photographs, “the one inch deviation is clearly trivial, and that, as a matter of law, [the defendants] were not negligent for permitting its existence.”
The Superior Court disagreed and noted that, its review of the records, in a light most favorable to the non-moving Plaintiff, compelled the conclusion “that the defect in this matter was not so trivial as to authorize summary judgment as a matter of law.”
The Superior Court noted that the deviation between the concrete pad and the surrounding asphalt, as depicted in the photographs, reflected that the 1-inch variation was not consistent around the concrete pad, but rather, the difference between the asphalt and concrete in other areas of the concrete pad may have been more or less than one inch at different places. Accordingly, the Superior Court found that the evidence established “that the defect was not obviously trivial as there is no definite or mathematical rule that determines when a defect is trivial.”
Finding that the evidence was sufficient to establish genuine issues of material fact that must be resolved by a jury, the Superior Court reversed the entry of summary judgment and remanded the case back to the Pike County Court of Common Pleas for further proceedings. As noted, Superior Court Judge Gantman dissented from this decision without any opinion.
I thank the prevailing plaintiff’s attorney, Gene Goldenziel of the Scranton law firm of Needle, Goldenziel, & Pascale, for forwarding this unpublished decision to my attention.
Anyone desiring a copy of this opinion, may contact me at dancummins@comcast.net.
Tuesday, September 7, 2010
Grant of New Trial Affirmed in Pike County Trip and Fall Case
A recent non-precedential decision by the Pennsylvania Superior Court in the trip and fall case of Stefanelli v. Birchwood Lakes Community Association, 1444 EDA 2009 (Pa.Super. Aug. 10, 2010) is significant for the fact that prior automobile accident decisions were utilized by the court to support the granting of a new trial for a plaintiff in a case where a defense verdict was entered after the jury found negligence but no factual cause even though all of the medical experts agreed that the Plaintiff sustained an injury as a result of the incident.
The case went up on appeal from the granting of a new trial by Pike County Court of Common Pleas Judge Gregory Chelak found that the jury's verdict "was so contrary to the evidence as to shock one's sense of justice."
More specifically, the Judge noted that the agreement of the medical experts for each side that the Plaintiff sustained some form of injury as a result of the incident combined with the jury's finding of negligence resulted in the trial court ruling that the jury's additional finding of no factual cause as being against the weight of the evidence.
As such, Judge Chelak granted the Plaintiff a new trial. On appeal, the Superior Court affirmed in this non-precedential Opinion.
Anyone desiring a copy of the Superior Court's Opinion in Stefanelli v. Birchwood Lakes may contact me at dancummins@comcast.net.
I thank the prevailing Plaintiff's attorney, James Conaboy Esquire of the Scranton law firm of Abrahamsen, Conaboy and Abrahamsen for forwarding this decision to my attention.
The case went up on appeal from the granting of a new trial by Pike County Court of Common Pleas Judge Gregory Chelak found that the jury's verdict "was so contrary to the evidence as to shock one's sense of justice."
More specifically, the Judge noted that the agreement of the medical experts for each side that the Plaintiff sustained some form of injury as a result of the incident combined with the jury's finding of negligence resulted in the trial court ruling that the jury's additional finding of no factual cause as being against the weight of the evidence.
As such, Judge Chelak granted the Plaintiff a new trial. On appeal, the Superior Court affirmed in this non-precedential Opinion.
Anyone desiring a copy of the Superior Court's Opinion in Stefanelli v. Birchwood Lakes may contact me at dancummins@comcast.net.
I thank the prevailing Plaintiff's attorney, James Conaboy Esquire of the Scranton law firm of Abrahamsen, Conaboy and Abrahamsen for forwarding this decision to my attention.
Wednesday, January 20, 2010
Punitive Damages for Cell Phone Use During Car Accident?
In an Opinion and Order dated January 14, 2010, in the case of Linehan v. Jaludi, No. 1865-2008-Civil (Pike Co. Jan. 14, 2010), Judge Gregory H. Chelak of the Pike County Court of Common Pleas addressed the issue of whether a plaintiff may pursue a claim for punitive damages on the basis that the defendant was jabbering away on cell phone to the point of distraction at the time of the accident.
In this case, the plaintiff was a police officer whose vehicle was stopped on the side of the road with the cruiser's flashing lights activated. Another vehicle was stopped in front of the plaintiff's police car. The defendant, while driving and allegedly talking on her cell phone, allegedly drifted off the roadway and collided with the police car while the plaintiff police officer was inside of the car, resulting in alleged injuries to the plaintiff.
The plaintiff police officer later filed a negligence Complaint in which a punitive damages claim was asserted, in part, on the basis of the defendant using a cell phone at the time of the accident. The defendant filed preliminary objections.
Judge Chelak of the Pike County Court of Common Pleas sustained the defendant's preliminary objections and granted the motion to strike the claim for punitive damages. It was held that the allegations of the Complaint that the defendant was so distracted by her cell phone conversation that she crashed into the plaintiff's police car with its flashing lights were insufficient, in and of themselves, to support the punitive damages claim.
However, citing the case of Pennington v. King, slip copy, 2009 WL 415718, 2009 U.S. Dist. LEXIS 12779 at 21 (E.D.Pa. 2009, Pratter, J.) as offering support for a punitive damages claim base upon a driver being distracted by cell phone use, the Pike County Court noted that, if discovery turned out to confirm the cell phone use and distraction, by way of cell phone records or otherwise, the plaintiff would have the right to seek to amend the Complaint in an effort to support the possibility of restating the punitive damages claim pursuant to Rule 1033.
I thank Attorney Paul Oven from the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this case to my attention.
Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.
In this case, the plaintiff was a police officer whose vehicle was stopped on the side of the road with the cruiser's flashing lights activated. Another vehicle was stopped in front of the plaintiff's police car. The defendant, while driving and allegedly talking on her cell phone, allegedly drifted off the roadway and collided with the police car while the plaintiff police officer was inside of the car, resulting in alleged injuries to the plaintiff.
The plaintiff police officer later filed a negligence Complaint in which a punitive damages claim was asserted, in part, on the basis of the defendant using a cell phone at the time of the accident. The defendant filed preliminary objections.
Judge Chelak of the Pike County Court of Common Pleas sustained the defendant's preliminary objections and granted the motion to strike the claim for punitive damages. It was held that the allegations of the Complaint that the defendant was so distracted by her cell phone conversation that she crashed into the plaintiff's police car with its flashing lights were insufficient, in and of themselves, to support the punitive damages claim.
However, citing the case of Pennington v. King, slip copy, 2009 WL 415718, 2009 U.S. Dist. LEXIS 12779 at 21 (E.D.Pa. 2009, Pratter, J.) as offering support for a punitive damages claim base upon a driver being distracted by cell phone use, the Pike County Court noted that, if discovery turned out to confirm the cell phone use and distraction, by way of cell phone records or otherwise, the plaintiff would have the right to seek to amend the Complaint in an effort to support the possibility of restating the punitive damages claim pursuant to Rule 1033.
I thank Attorney Paul Oven from the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this case to my attention.
Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.
Monday, November 2, 2009
Latest Pennsylvania Law Weekly Article - "You'd Better Watch Your Step"
My latest article, entitled "You'd Better Watch Your Step: Premises liability defendants are having a banner year in Pennsylvania courts," appeared in the Pennsylvania Law Weekly last week. The article reviewed a number of defense-oriented decisions from across the Commonwealth of Pennsylvania in premises liability cases.
That article, as well as other articles of mine, can be viewed under my profile on JDSupra at http://www.jdsupra.com/profile/danielcummins.
This particular article on the premises liability cases can be found by clicking this link: http://www.jdsupra.com/post/documentViewer.aspx?fid=792bd369-89d3-4aff-9d68-2a4be9ee0c20.
Also, continuing the trend of recent cases in favor of Defendant landowners, the Beaver County Court of Common Pleas issued an opinion in Orlowski v. Magg’s, Inc., PICS Case No. 09-1822(C.P. Beaver Oct. 27, 2009, Kwidis, J.) granting summary judgment in favor of a bowling alley in a trip and fall case.
Relying upon the rule that a person has a duty to look where he or she is walking and see that which is obvious, the court granted summary judgment to the defendant in a case where a plaintiff tripped over the step separating the bowling alley floor from the bathroom floor, which was slightly higher.
The court was impressed by the fact that the step was painted bright yellow against the dark carpet of the bowling alley floor and the beige ceramic tile bathroom floor. Also there was a "Watch Your Step" sign posted outside of the restroom. Furthermore, during her deposition, the plaintiff admitted that she was not watching where she was going.
Judge Kwidis of the Beaver County Court of Common Pleas found that the plaintiff had a duty to watch where she was going and that the landowner had no duty is owed to protect invitees from open and obvious dangers. He also relied upon the Pennsylvania cases holding that a mere difference in elevation or doorstops were not deemed to be dangerous conditions.
A copy of this case can be secured from the Pennsylvania Law Weekly for a small fee by calling 1-800-276-7427 and giving the above PICS number.
My firm and I continue to handle premises liability cases (as well as auto accident matters) all across Northeastern Pennsylvania. Please feel free to contact me at dancummins@comcast.net should I be able to assist you in any regard with such matters.
That article, as well as other articles of mine, can be viewed under my profile on JDSupra at http://www.jdsupra.com/profile/danielcummins.
This particular article on the premises liability cases can be found by clicking this link: http://www.jdsupra.com/post/documentViewer.aspx?fid=792bd369-89d3-4aff-9d68-2a4be9ee0c20.
Also, continuing the trend of recent cases in favor of Defendant landowners, the Beaver County Court of Common Pleas issued an opinion in Orlowski v. Magg’s, Inc., PICS Case No. 09-1822(C.P. Beaver Oct. 27, 2009, Kwidis, J.) granting summary judgment in favor of a bowling alley in a trip and fall case.
Relying upon the rule that a person has a duty to look where he or she is walking and see that which is obvious, the court granted summary judgment to the defendant in a case where a plaintiff tripped over the step separating the bowling alley floor from the bathroom floor, which was slightly higher.
The court was impressed by the fact that the step was painted bright yellow against the dark carpet of the bowling alley floor and the beige ceramic tile bathroom floor. Also there was a "Watch Your Step" sign posted outside of the restroom. Furthermore, during her deposition, the plaintiff admitted that she was not watching where she was going.
Judge Kwidis of the Beaver County Court of Common Pleas found that the plaintiff had a duty to watch where she was going and that the landowner had no duty is owed to protect invitees from open and obvious dangers. He also relied upon the Pennsylvania cases holding that a mere difference in elevation or doorstops were not deemed to be dangerous conditions.
A copy of this case can be secured from the Pennsylvania Law Weekly for a small fee by calling 1-800-276-7427 and giving the above PICS number.
My firm and I continue to handle premises liability cases (as well as auto accident matters) all across Northeastern Pennsylvania. Please feel free to contact me at dancummins@comcast.net should I be able to assist you in any regard with such matters.
Thursday, August 6, 2009
Latest Compilation of Post-Koken Cases
The following is a list of post-Koken cases that I have come across or have been made aware of over time. It is by no means intended to be an exhaustive list of these types of decisions to date and there may very well be other opinions out there.
All of the opinions and orders noted below have been generated from trial courts across the Commonwealth. I am unaware of any appellate decisions having been handed down yet in this area.
I would be interested in being notified of any other post-Koken cases you may be aware of so that they can be publicized and a consistent common law can be generated in this area.
If any one needs a copy of any of the opinions or orders listed below, please do not hesitate to contact me. I also invite anyone needing any other assistance with a post-Koken case pending in Northeastern Pennsylvania to please contact me to discuss the matter. I can be reached at dancummins@comcast.net.
The post-Koken cases that I am aware of to date are, as follows:
Decker v. Nationwide Ins. Co., 2005-Civil-1863//2006-Civil 2119 (Lacka. Co. March 4, 2008)(Minora, J.)(consolidation permitted of bad faith action against UIM carrier and declaratory judgment action regarding coverage).
Gunn v. Auto. Ins. Co. of Hartford, Conn., GD07-Civil-002888 (Alleg. Co. July 25, 2008)(Wettick, J.)(Bad faith claim and UIM claim allowed to proceed together).
Augustine v. Erie Ins. Exchange, 2006-Civil-416 (Lacka. Co. August 1, 2008)(Mazzoni, J.)(Motion to sever bad faith claim from UIM claim denied).
Collins v. Zeiler and State Farm, GD08-Civil-014817 (Alleg. Co. October 22, 2008)(Strassburger, J.)(Preliminary objection seeking to sever claims denied.).
Moyer v. Harrigan and Erie Ins. Exchange, 2008-Civil-1684 (Lacka. Co. October 24, 2008)(Thomson, J. visiting judge)(Consolidation of UIM claim and claim against tortfeasor permitted).
Jannone v. McCooey and State Farm, 2320-2008-Civil (Pike Co. April 1, 2009)(Chelak, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes).
Serulneck v. Kilian and Allstate, 2008-Civil-2859 (Lehigh Co. April 7, 2009)(McGinley, J.)(Motion of tortfeasor defendant for severance of claims against him from UIM claims under one caption denied.).
Six v. Phillips and Nationwide Ins. Co., 12227-Civil-2008 (Beaver Co. June 30, 2009)(Kwidis, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes.).
Glushefski v. Sadowski and Erie Ins. Exchange, 1189-Civil-2009 (Luz. Co. July 24, 2009)(Burke, J.)(Preliminary objection by tortfeasor defendant seeking to sever third party claim from consolidated UIM claim overruled).
All of the opinions and orders noted below have been generated from trial courts across the Commonwealth. I am unaware of any appellate decisions having been handed down yet in this area.
I would be interested in being notified of any other post-Koken cases you may be aware of so that they can be publicized and a consistent common law can be generated in this area.
If any one needs a copy of any of the opinions or orders listed below, please do not hesitate to contact me. I also invite anyone needing any other assistance with a post-Koken case pending in Northeastern Pennsylvania to please contact me to discuss the matter. I can be reached at dancummins@comcast.net.
The post-Koken cases that I am aware of to date are, as follows:
Decker v. Nationwide Ins. Co., 2005-Civil-1863//2006-Civil 2119 (Lacka. Co. March 4, 2008)(Minora, J.)(consolidation permitted of bad faith action against UIM carrier and declaratory judgment action regarding coverage).
Gunn v. Auto. Ins. Co. of Hartford, Conn., GD07-Civil-002888 (Alleg. Co. July 25, 2008)(Wettick, J.)(Bad faith claim and UIM claim allowed to proceed together).
Augustine v. Erie Ins. Exchange, 2006-Civil-416 (Lacka. Co. August 1, 2008)(Mazzoni, J.)(Motion to sever bad faith claim from UIM claim denied).
Collins v. Zeiler and State Farm, GD08-Civil-014817 (Alleg. Co. October 22, 2008)(Strassburger, J.)(Preliminary objection seeking to sever claims denied.).
Moyer v. Harrigan and Erie Ins. Exchange, 2008-Civil-1684 (Lacka. Co. October 24, 2008)(Thomson, J. visiting judge)(Consolidation of UIM claim and claim against tortfeasor permitted).
Jannone v. McCooey and State Farm, 2320-2008-Civil (Pike Co. April 1, 2009)(Chelak, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes).
Serulneck v. Kilian and Allstate, 2008-Civil-2859 (Lehigh Co. April 7, 2009)(McGinley, J.)(Motion of tortfeasor defendant for severance of claims against him from UIM claims under one caption denied.).
Six v. Phillips and Nationwide Ins. Co., 12227-Civil-2008 (Beaver Co. June 30, 2009)(Kwidis, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes.).
Glushefski v. Sadowski and Erie Ins. Exchange, 1189-Civil-2009 (Luz. Co. July 24, 2009)(Burke, J.)(Preliminary objection by tortfeasor defendant seeking to sever third party claim from consolidated UIM claim overruled).
Wednesday, July 22, 2009
Summary Judgment for Defense in Pike County Trip and Fall Case
On June 19, 2009, Judge Gregory H. Chelak of the Pike County Court of Common Pleas issued an opinion granting summary judgment in favor of the defense in a case involving a plaintiff who tripped and fell allegedly due to the raised edge of a concrete pad at a gas station being a mere one inch above the surrounding asphalt. Melchiorre v. Lords Valley Xtra Mart, No. 1358-2006-Civil (June 19, 2009).
Relying upon, Rocklin v. Hartmann, No. 248-2003-Civil (June 22, 2006) aff'd No. 1673 EDA 2006 (Pa.Super. Feb. 13, 2007), a prior Pike County decision in favor of the defense in a case involving a 1.5 inch elevation, Judge Chelak held that, under the "trivial defect" doctrine, the one inch discrepancy involved in the case at hand was "so trivial that, as a matter of law, Defendants were not negligent in permitting it to exist." The court based its decision, in part, on photographs of the defect supplied in the motion for summary judgment materials.
In so ruling, Judge Chelak rejected the Plaintiff's argument that the trivial nature of the defect should be disregarded on account of the fact that the Defendants had notice of the defect prior to the incident. Judge Chelak held that "[p]ursuant to the trivial defect doctrine, the existence of such defects does not give rise to a negligence claim, with or without notice."
The Plaintiffs filed an appeal on July 1, 2009 and the case is currently pending before the Superior Court of Pennsylvania.
Relying upon, Rocklin v. Hartmann, No. 248-2003-Civil (June 22, 2006) aff'd No. 1673 EDA 2006 (Pa.Super. Feb. 13, 2007), a prior Pike County decision in favor of the defense in a case involving a 1.5 inch elevation, Judge Chelak held that, under the "trivial defect" doctrine, the one inch discrepancy involved in the case at hand was "so trivial that, as a matter of law, Defendants were not negligent in permitting it to exist." The court based its decision, in part, on photographs of the defect supplied in the motion for summary judgment materials.
In so ruling, Judge Chelak rejected the Plaintiff's argument that the trivial nature of the defect should be disregarded on account of the fact that the Defendants had notice of the defect prior to the incident. Judge Chelak held that "[p]ursuant to the trivial defect doctrine, the existence of such defects does not give rise to a negligence claim, with or without notice."
The Plaintiffs filed an appeal on July 1, 2009 and the case is currently pending before the Superior Court of Pennsylvania.
Wednesday, May 6, 2009
Continuing Consolidation of Post-Koken Cases
It has now been about four years since the Pennsylvania Supreme Court handed down its decision in the case of Insurance Federation of Pennsylvania v. Commonwealth, Department of Insurance (Koken), 889 A.2d 550 (Pa. 2005), holding that automobile insurance carriers were not required to include arbitration clauses in their policies for the resolution of underinsured and uninsured motorists claims.
Some carriers that have altered the language of their arbitration clauses to require the consent of both parties to submit the case to arbitration include AMICA, GEICO, Allstate, Harleysville, and Progressive. Carriers that appear to have totally eliminated the arbitration clause altogether include Nationwide, Erie, Liberty Mutual, Donegal, Keystone, and USAA, requiring claims against those carriers to be resolved by way of a lawsuit. State Farm has changed its arbitration clause to specifically mandate that all underinsured and uninsured motorist claims be resolved by way of a lawsuit filed in the court of common pleas.
Now as these cases involving many different types of claims that can arise out of a single car accident (third party, UIM, UM, first party benefits claims, bad faith, etc.) begin to work their way through the court system in Pennsylvania, many novel issues are arising and causing great uncertainty for the courts and the bar.
At least one issue has been clarified. Based on numerous decisions by various courts of common pleas in different counties, it can be safely stated that the trial courts will favor, and allow to stand, the consolidation of UIM claims with any bad faith claims against the involved insurance company along with any claims against the individual defendants who actually caused the accident, all under one lawsuit.
A number of the cases addressing this issue of consolidation of claims have come out of the Lackawanna County and Allegheny County Courts Court of Common Pleas. In Lackawanna County, Judge Carmen Minora allowed for the consolidation of a Koken-type case under Rule 213 in Decker v. Nationwide Insurance Co., 83 Pa.D.&C.4th 375 (2007). Senior Judge Harold A. Thomson, Jr., then sitting in Lackawanna County, offered a similar opinion in the case of Moyer v. Harrigan and Erie Ins. Exchange, No. 1684-CV-2008 (2008). Judge Robert Mazzoni also allowed for a UIM claim to proceed in a consolidated fashion with a bad faith claim in Augustine v. Erie Ins. Exchange,2006-CV-416 (2008).
Similarly, in Allegheny County, consolidation of various first party and third party claims has been approved by Judge Eugene B. Strassburger in Collins v. Zieler and State Farm, No. G.D. 08-014817 (2008) and Judge R. Stanton Wettick in the case of Gunn v. Automobile Ins. Co. of Hartford, PICS No. 08-1266 (2008).
These cases were reviewed in detail in my prior columns that appeared in the Pennsylvania Law Weekly entitled “Here Comes Hurricane Koken,” 31 PLW 1165 (October 27, 2008), and the 2008 year-end review of auto cases in “Negligence is in the Air…and on the Road,” 31 PLW 1380 (December 22, 2008).
Generally speaking, a review of the above cases indicated that the trial courts of Pennsylvania would be allowing for the joinder of these separate claims under Pa.R.C.P. 2229(b) (“Permissive joinder”) or Pa.R.C.P. 213 (“Consolidation….”). The underlying rationale is that since these post-Koken claims arise out of the same “transaction or occurrence,” i.e. the same motor vehicle accident and involve similar factual and legal issues, they should be consolidated under one lawsuit. It also appeared from these cases that the overriding principle of judicial economy, i.e. how the already overburdened trial courts would need to handle the impending glut of these new types of claims, would be an additional driving force influencing the courts’ decisions in the post-Koken cases.
More recently, on April 1, 2009, Judge Gregory H. Chelak of the Pike County Court of Common Pleas, issued a three page Order that reads like an opinion in the case of Jannone v. McCooey and State Farm, 2320-2008-Civil in which he joined the growing number of decisions allowing for the consolidation of the multiple claims available in a post-Koken automobile accident case.
In Jannone, the Plaintiff was involved in a motor vehicle accident in a school parking lot on February 15, 2008. At the time, the Plaintiff was covered by a post-Koken automobile insurance policy issued by State Farm. As noted above, that carrier had done away with the UIM arbitration clause and instead required the filing of a lawsuit for the pursuit of a UIM claim.
As such, the Plaintiff filed suit against the third party tortfeasor and State Farm as the UIM carrier under as single caption in the Pike County Court of Common Pleas. The third party tortfeasor, not wanting to be lumped in the same case with an insurance company in front of a jury, filed preliminary objections.
Judge Chelak quickly dismissed the defendant tortfeasor’s first assertion that the claims asserted against her should be dismissed in that they were “misjoined” with those claims asserted against the UIM carrier. Noting that there did “not appear to be any controlling appellate case law specifically addressing whether claims against a tortfeasor and UIM insurer may be joined in the same cause of action pursuant to Rule 2229(b),” Judge Chelak stated that the joinder of the claims would be allowed to stand under that Rule as the court was satisfied that the causes of actions against the defendant tortfeasor and State Farm arose out of the same occurrence of a single motor vehicle accident and involved similar factual questions. In denying this preliminary objection,, the Jannone court also alluded to the overriding principle of judicial economy and noted that the joinder of these claims would save judicial resources and avoid delays and expenses to the litigants.
Judge Chelak also rejected the alternative argument of the defendant tortfeasor that the claims against her should be dismissed because trying them along with the Plaintiff’s claims against State Farm would be unduly prejudicial as it would require the introduction into evidence of her own insurance policy.
In support of her argument, the defendant tortfeasor cited to Pennsylvania Rule of Evidence 411 which provides that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.”
Judge Chelak used Pa.R.E. 411 to instead support his decision to deny this preliminary objection. Judge Chelak found that, under the scenario presented in this Koken case, the defendant tortfeasor’s insurance policy would be relevant for the separate purpose of showing of State Farm’s liability, since State Farm’s UIM liability was dependent upon the amount of the defendant tortfeasor’s liability coverage. Note that it is settled law under Pennsylvania law, the UIM carrier is entitled to a credit in the amount of the tortfeasor’s liability policy before the UIM carrier has to pay out under its own policy.
According to Judge Chelak, it therefore followed that the defendant tortfeasor’s policy was “not inadmissible pursuant to Pa.R.E. 411” and, as such, he denied the defendant tortfeasor’s preliminary objection that it was unduly prejudicial to allow for this joinder of claims.
With this new area of law developing it is important that the courts and the bar attempt to publicize post-Koken decisions whenever possible. Surely, there have been other similar orders and opinions addressing important post-Koken issues handed down by other courts of common pleas across Pennsylvania that have gone unpublished or have not been otherwise publicized for the benefit of the bar. Perhaps the courts and counsel can bring these cases to the attention of others by submitting copies of the opinions to statewide organizations such as the Pennsylvania Bar Association (PBA), the Pennsylvania Association for the Advancement of Justice (PAAJ), and the Pennsylvania Defense Institute (PDI). In this way, the common law associated with post-Koken cases can be developed in a more uniform and consistent fashion under the doctrine of stare decisis.
Some carriers that have altered the language of their arbitration clauses to require the consent of both parties to submit the case to arbitration include AMICA, GEICO, Allstate, Harleysville, and Progressive. Carriers that appear to have totally eliminated the arbitration clause altogether include Nationwide, Erie, Liberty Mutual, Donegal, Keystone, and USAA, requiring claims against those carriers to be resolved by way of a lawsuit. State Farm has changed its arbitration clause to specifically mandate that all underinsured and uninsured motorist claims be resolved by way of a lawsuit filed in the court of common pleas.
Now as these cases involving many different types of claims that can arise out of a single car accident (third party, UIM, UM, first party benefits claims, bad faith, etc.) begin to work their way through the court system in Pennsylvania, many novel issues are arising and causing great uncertainty for the courts and the bar.
At least one issue has been clarified. Based on numerous decisions by various courts of common pleas in different counties, it can be safely stated that the trial courts will favor, and allow to stand, the consolidation of UIM claims with any bad faith claims against the involved insurance company along with any claims against the individual defendants who actually caused the accident, all under one lawsuit.
A number of the cases addressing this issue of consolidation of claims have come out of the Lackawanna County and Allegheny County Courts Court of Common Pleas. In Lackawanna County, Judge Carmen Minora allowed for the consolidation of a Koken-type case under Rule 213 in Decker v. Nationwide Insurance Co., 83 Pa.D.&C.4th 375 (2007). Senior Judge Harold A. Thomson, Jr., then sitting in Lackawanna County, offered a similar opinion in the case of Moyer v. Harrigan and Erie Ins. Exchange, No. 1684-CV-2008 (2008). Judge Robert Mazzoni also allowed for a UIM claim to proceed in a consolidated fashion with a bad faith claim in Augustine v. Erie Ins. Exchange,2006-CV-416 (2008).
Similarly, in Allegheny County, consolidation of various first party and third party claims has been approved by Judge Eugene B. Strassburger in Collins v. Zieler and State Farm, No. G.D. 08-014817 (2008) and Judge R. Stanton Wettick in the case of Gunn v. Automobile Ins. Co. of Hartford, PICS No. 08-1266 (2008).
These cases were reviewed in detail in my prior columns that appeared in the Pennsylvania Law Weekly entitled “Here Comes Hurricane Koken,” 31 PLW 1165 (October 27, 2008), and the 2008 year-end review of auto cases in “Negligence is in the Air…and on the Road,” 31 PLW 1380 (December 22, 2008).
Generally speaking, a review of the above cases indicated that the trial courts of Pennsylvania would be allowing for the joinder of these separate claims under Pa.R.C.P. 2229(b) (“Permissive joinder”) or Pa.R.C.P. 213 (“Consolidation….”). The underlying rationale is that since these post-Koken claims arise out of the same “transaction or occurrence,” i.e. the same motor vehicle accident and involve similar factual and legal issues, they should be consolidated under one lawsuit. It also appeared from these cases that the overriding principle of judicial economy, i.e. how the already overburdened trial courts would need to handle the impending glut of these new types of claims, would be an additional driving force influencing the courts’ decisions in the post-Koken cases.
More recently, on April 1, 2009, Judge Gregory H. Chelak of the Pike County Court of Common Pleas, issued a three page Order that reads like an opinion in the case of Jannone v. McCooey and State Farm, 2320-2008-Civil in which he joined the growing number of decisions allowing for the consolidation of the multiple claims available in a post-Koken automobile accident case.
In Jannone, the Plaintiff was involved in a motor vehicle accident in a school parking lot on February 15, 2008. At the time, the Plaintiff was covered by a post-Koken automobile insurance policy issued by State Farm. As noted above, that carrier had done away with the UIM arbitration clause and instead required the filing of a lawsuit for the pursuit of a UIM claim.
As such, the Plaintiff filed suit against the third party tortfeasor and State Farm as the UIM carrier under as single caption in the Pike County Court of Common Pleas. The third party tortfeasor, not wanting to be lumped in the same case with an insurance company in front of a jury, filed preliminary objections.
Judge Chelak quickly dismissed the defendant tortfeasor’s first assertion that the claims asserted against her should be dismissed in that they were “misjoined” with those claims asserted against the UIM carrier. Noting that there did “not appear to be any controlling appellate case law specifically addressing whether claims against a tortfeasor and UIM insurer may be joined in the same cause of action pursuant to Rule 2229(b),” Judge Chelak stated that the joinder of the claims would be allowed to stand under that Rule as the court was satisfied that the causes of actions against the defendant tortfeasor and State Farm arose out of the same occurrence of a single motor vehicle accident and involved similar factual questions. In denying this preliminary objection,, the Jannone court also alluded to the overriding principle of judicial economy and noted that the joinder of these claims would save judicial resources and avoid delays and expenses to the litigants.
Judge Chelak also rejected the alternative argument of the defendant tortfeasor that the claims against her should be dismissed because trying them along with the Plaintiff’s claims against State Farm would be unduly prejudicial as it would require the introduction into evidence of her own insurance policy.
In support of her argument, the defendant tortfeasor cited to Pennsylvania Rule of Evidence 411 which provides that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.”
Judge Chelak used Pa.R.E. 411 to instead support his decision to deny this preliminary objection. Judge Chelak found that, under the scenario presented in this Koken case, the defendant tortfeasor’s insurance policy would be relevant for the separate purpose of showing of State Farm’s liability, since State Farm’s UIM liability was dependent upon the amount of the defendant tortfeasor’s liability coverage. Note that it is settled law under Pennsylvania law, the UIM carrier is entitled to a credit in the amount of the tortfeasor’s liability policy before the UIM carrier has to pay out under its own policy.
According to Judge Chelak, it therefore followed that the defendant tortfeasor’s policy was “not inadmissible pursuant to Pa.R.E. 411” and, as such, he denied the defendant tortfeasor’s preliminary objection that it was unduly prejudicial to allow for this joinder of claims.
With this new area of law developing it is important that the courts and the bar attempt to publicize post-Koken decisions whenever possible. Surely, there have been other similar orders and opinions addressing important post-Koken issues handed down by other courts of common pleas across Pennsylvania that have gone unpublished or have not been otherwise publicized for the benefit of the bar. Perhaps the courts and counsel can bring these cases to the attention of others by submitting copies of the opinions to statewide organizations such as the Pennsylvania Bar Association (PBA), the Pennsylvania Association for the Advancement of Justice (PAAJ), and the Pennsylvania Defense Institute (PDI). In this way, the common law associated with post-Koken cases can be developed in a more uniform and consistent fashion under the doctrine of stare decisis.
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