Plaintiff's Failure to Meet Six Month Notice Requirement in Action Against Governmental Agency Excused

In an unpublished Commonwealth Court decision written by Judge Joseph M. Cosgrove in the case of Dacey v. Luzerne County, PA, No. 156 C.D. 2016 (Pa. Cmwlth. Dec. 6, 2016 McCullough, Cosgrove, Pellegrini, J.J.), the Commonwealth Court reversed the trial court's sustaining of the defendant's Preliminary Objections in a trip and fall case filed against a governmental agency.

The trial court sustained the defendant's preliminary objections which asserted that the Plaintiff's failed to comply with the six month notice requirement under 42 Pa.C.S.A. Section 5522(a).

The appellate court noted that there was no dispute that the Plaintiff had failed to provide notice of the claim to the governmental agency within six months of the incident.

Judge Joseph  M. Cosgrove
Pennsylvania Commonwealth Court

However, the appellate court accepted the argument of the Plaintiff, who was a New Jersey resident, that she was unaware of the six month notice requirement and that ignorance of the law could be deemed a reasonable excuse in this context.  The court also found that there was no prejudice sustained by the defendant by the late notice.

As such the trial court's decision was reversed and the matter was remanded for further proceedings.

Anyone wishing to review this unpublished decision by the Commonwealth Court in the Dacey court may contact me at dancummins@comcast.net.


I send thanks to Attorney Jonathan Comitz of the Wilkes-Barre, PA office of Comitz Law Firm LLC for bringing this case to my attention.  Attorney Jeremy Weinstock of that office handled this matter.

Judge Cosgrove of Luzerne County Addresses "Regular Use" Exclusion in Auto Policy

In his June 27, 2011 Opinion in the case of Rother v. Erie Insurance Exchange, No. 14656-Civil-2008 (C.P. Luz. June 27, 2011 Cosgrove, J.) Judge Joseph Cosgrove of the Luzerne County Court of Common Pleas addressed a declaratory judgment action involving the question of the application of a “regular use” exclusion under an Erie Insurance policy.

According to the Opinion, the Plaintiff was injured in a motor vehicle accident on March 3, 2007. At that time, he resided with his mother. The vehicle in which the Plaintiff was located in at the time of the accident was owned by his father, who restricted the Plaintiff's use of this vehicle to work or emergency purposes.

The Opinion notes that, while the Plaintiff was admittedly not driving to or from work when the accident occurred, he claimed that he was on his way to help a friend. While on his way to help a friend, the Plaintiff was involved in the subject accident that was caused by an allegedly intoxicated driver.

The tortfeasor’s carrier tendered the policy limits under the liability policy and the Plaintiff pursued an underinsured motorist claim against the Erie Insurance Exchange policy that was issued to the Plaintiff’s mother.

Judge Cosgrove noted that, while Erie acknowledged that the Plaintiff was otherwise covered by a “resident relative” under his mother’s policy, Erie had denied covered pursuant to the “regular use” exclusion in the policy. That exclusion provided that coverage was inapplicable in the following circumstances:

“Bodily injury to….a resident using a non-owned motor vehicle….which is regularly used by [that] resident, but not insured for Uninsured or Underinsured Motorists Coverage under the policy.”

According to the Opinion, the injured party Plaintiff instituted the declaratory judgment action seeking a judicial declaration that the Erie policy should indeed provide UIM coverage. The case came before Judge Cosgrove by way of Erie Insurance’s Motion for Summary Judgment in which the carrier asserted that the “regular use” exclusion precluded any coverage under the facts presented.

In addressing the summary judgment motion, Judge Cosgrove noted that there was no dispute that the Plaintiff’s use of the vehicle was of the type to which the exclusion of issue applied. He additionally noted that there was no dispute that the subject vehicle was not otherwise insured under the Erie policy issued to the Plaintiff’s mother. Nor was there any question that the Plaintiff resided with his mother.

Rather, the sole issue before the Court was whether the Plaintiff “regularly” used the subject vehicle in a way contemplated by the exclusion.

In his Opinion, Judge Cosgrove reviewed the current status of the regular use exclusion under Pennsylvania law, including a reference to the recent Opinion issued by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Erie Insurance Exchange v. Soroka, No. 09-CIV-1056 (C.P. 2011 Lacka. Co. Nealon, J.). Judge Cosgrove noted that, while it is clear under Pennsylvania law that this “regular use” exclusion is legitimate and not contrary to public policy, the appropriate application of the exclusion was subject to the particular factual situation presented on a case by case basis.

Accordingly, Judge Cosgrove reviewed the facts of the case before him and found that the Plaintiff’s permission to use the subject vehicle was limited by his father such that there were genuine issues of material fact as to whether or not the Plaintiff “regularly” used the vehicle so as to come within the “regular use” exclusion set forth in the Erie Insurance Exchange policy.

As such, Judge Cosgrove denied the carrier’s Motion for Summary Judgment given that he was unable to say, as a matter of law, that the “regular use” restriction at issue precluded coverage under the facts presented.


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

Recent Trial Court Decisions Allowing Punitive Damages in Trucking Cases

In a decision issued back on February 14, 2011, Judge Joseph Cosgrove of the Luzerne County Court of Common Pleas addressed Preliminary Objections to a punitive damages claim contained in the trucking accident case of Overman v. Fraser, et.al., No. 9225-Civ-2010 (Luz. Co. Feb. 14, 2011, Cosgrove, J.).

According to the opinion, at the time of the motor vehicle accident involved in this matter, the Plaintiff was working on traffic lights from the bucket of a construction vehicle parked in a clearly marked construction area. The Defendant truck driver, operating a tractor trailer, came through the construction area and struck the bucket and then the Plaintiff’s vehicle, resulting in injuries to the Plaintiff.

Judge Cosgrove noted that the “essence of Plaintiff’s demand for punitive damages centers on [the truck driver’s] status as a professional driver operating such a substantial vehicle in a way which caused this collision in a construction zone.” The Plaintiff also asserted that the owner of the tractor trailer was responsible for permitting the tractor trailer driver to operate the vehicle when they knew or should have known was unable to do so properly.

Relying upon the Federal Middle District Court decision in the case of Grosek v. Panther Transp., Inc., 2009 W.L. 427, 238 (M.D. Pa. 2009), a case involving similar punitive damages claims, Judge Cosgrove essentially ruled that the involvement of a larger vehicle being operated by a driver with experience and training and safety required the Court to find that the Defendant had not met their “heavy burden” in support of the Preliminary Objections seeking the dismissal of the punitive damages claims.

Another recent, local decision allowing a punitive claim to go forward beyond the Motion for Summary Judgment stage is the November 3, 2010 decision by Judge Carmen D. Minora in the case of Riese v. C&M Sales, Inc., No. 06 CV 6281 (Lacka. Co. Nov. 3, 2010, Minora, J.). In Riese, however, there were more substantial allegations of safety violations and reckless conduct on the part of the Defendant truck driver and Defendant owner of the trucking vehicle involved.



Anyone desiring a copy of the Overman decision by Judge Cosgrove or the Riese decision by Judge Minora may contact me at dancummins@comcast.net.

Validity of a Type of Negligent Infliction of Emotional Distress Claims in Medical Malpractice Matters Called Into Question

An ongoing issue generating some conflicting decisions in the trial courts across the Commonwealth of Pennsylvania in medical malpractice cases concerns the ability of family members to pursue a claim for negligent infliction of emotional distress on the grounds that they had to witness the deterioration and eventual demise of their loves one allegedly as a result of the negligence of a medical provider.

Under the general bystander theory of negligent infliction of emotional distress, the required elements of proof mandate that the claimant (1) must have been at the scene of the incident, (2) must have suffered from a sensory and contemporaneous observance of negligent acts or omissions, and (3) that the claimant must have been closely related to the victim of the negligence.

My partner, Timothy E. Foley, Esquire and myself, along with a number of other defense counsel, were successful in having a demurrer sustained against such a claim in the recent Lackawanna County Court of Common Pleas decision of McHale vs. Community Medical Center, et.al., 2010-Civil-3496 (Lacka. Co. January 7, 2011, Thomson, S.J.).

Before I get into that case, here is some background on the issue presented.

Medical malpractice defendants have challenged these types of negligent infliction of emotion distress claims on several grounds, including by arguing that the slow demise of the decedent prevents a finding of any shocking event necessary to support the claim for negligent infliction of emotional distress. Another argument is that lay people are not able to recognize a professional misjudgment or omission by a doctor to support a showing of a sensory and contemporaneous observance of negligent acts or omissions and a resultant jolting shock to one's mental status or emotional well-being.

Several trial court decisions out of Northeastern Pennsylvania over the past year have evidenced a differing opinion by judges as to the validity of this type of a claim.

Back in April of 2010, Judge Carmen Minora of the Lackawanna County Court of Common Pleas squarely addressed the issue in Ward v. Moses Taylor Hospital, 2010 WL 4357308 (Lacka. Co. 2010 Minora, J.). In Ward, the plaintiff-husband entered the hospital to treat for a partial paralysis condition and, allegedly as a result of negligent treatment, ended up a quadriplegic. The plaintiff's wife asserted a bystander claim for negligent infliction of emotional distress in the Complaint.

Judge Minora was constrained to deny the defendant's preliminary objections to the negligent infliction of emotional distress claim. The court found that plaintiff sufficiently pled her cause of action in accordance with the appellate case law existing at the time.

The court noted that, under a literal application of the elements of this cause of action, a plaintiff would be required to observe that the acts or omissions by the medical providers constituted medical malpractice, realize the medical impact of such negligence on the victim, and suffer emotional shock contemporaneously with that realization. In this regard, Judge Minora pointed to Halliday v. Beltz, 356 Pa. Super. 375, 514 A.2d 906 (1986) and Tackett v. Encke, 353 Pa. Super. 349, 509 A.2d 1310 (1986) as support.

Although Judge Minora noted that an understanding the medical significance of alleged negligent medical acts or omissions required a level of medical knowledge and expertise beyond that possessed by a typical layperson, because the case law did not require such an understanding by the lay person plaintiff, the court was "mandated to suspend [its] common sense" and overrule the Defendants' preliminary objections in the form of a demurrer.

A similar decision was handed down in October of 2010 by Judge Joseph Cosgrove of the Luzerne County Court of Common Pleas in the case of Prushinski et al v. Quilo et al., No. 11704 - Civil - 2009 (Luz. Co., Oct. 12, 2010, Cosgrove, J.).

In Prushinski, the decedent was brought to the hospital for treatment of a condition and eventually died nine days thereafter allegedly as a result of medical negligence. Family members pled negligent infliction of emotional distress claims in the Complaint.

Citing Weaver v. Univ. of Pittsburgh Medical Center, 2008 WL 2942139 (W.D.Pa. 2008), Judge Cosgrove allowed the claim to proceed as the plaintiffs had alleged that they were close family members, had been in the presence of the decedent during his treatment and witnessed his demise, all resulting in emotional injuries.

Judge Cosgrove also ruled that, contrary to the defense contentions, "Plaintiffs need not have recognized at the time of [the decedent's] treatment that Decedent was being subjected to Defendants' negligence."

As noted above, last month, a contrary result was secured by my partner, Timothy E. Foley, Esquire and I, along with the other defense counsel in the McHale case out of Lackawanna County.

In his Order, visiting Senior Judge Harold A. Thomson, Jr., ruled that the Plaintiff’s claims for negligent infliction of emotional distress were “[s]tricken based upon [the Plaintiff’s] failure to state a viable claim under Pennsylvania law."

In this regard, the Court cited to Halliday v. Beltz, 514 A.2d 906 (Pa. Super. 1986). In Halliday, the Pennsylvania Superior Court held that a decedent's husband and daughter who brought medical malpractice action alleging negligent infliction of emotional distress did not meet the personal observation requirements of this cause of action where they never actually viewed any of the allegedly negligent surgery or postoperative emergency remedial measures employed thereafter, though they were present in hospital while procedures were performed.


Anyone desiring a copy of the Order issued in the Ward case or my Brief (to assist in research efforts) may contact me at dancummins@comcast.net

I also have a copy of Judge Cosgrove's decision in the Prushinski case if you need it. Judge Minora's decision in Ward is posted on Westlaw but if you do not have access to that I can get you a copy of that Opinion as well.


NOTE: Past results secured by my firm or I are no guarantee of future results and each case must be handled on its own merits.

Joseph Cosgrove Sworn in as New Judge in Luzerne County

Attorney Joseph Cosgrove, 52, was sworn in as a new Judge on the Luzerne County Court of Common Pleas on January 28, 2009. He was in private practice since 1982 and appears to have focused his practice on the defense of criminal matters.

Judge Cosgrove is filling out former Judge Mark Ciavarella's term and is allowed to remain on the bench until that term ends in January of 2012. As such, Judge Cosgrove will essentially hold his position in all of 2010 and 2011.

The Luzerne County Court of Common Pleas still remains three (3) judges shy of its full complement of jurists. The seats of former judges Michael Toole (resigned after fraud charges filed), Peter Paul Olszewski (lost bid for retention in recent elections), and Ann Lokuta (removed by Judicial Conduct Board) remain open.