Court Upholds Assault and Battery Exclusion in Liability Policy Related To Shooting Incident

In the case of The Farmers Fire Ins. Co. v. S.W. Krauss, LLC, No. 2023-CV-5087 (C.P. Lacka. Co. May 12, 2025 Gibbons, J.), the court granted a liability carrier’s Motion for Judgment on the Pleadings based upon an assault battery exclusion contained in the subject policy relative to a shooting incident that occurred on the insured’s premises.

According to the Opinion, this matter involved an injured party who suffered a gunshot wound after gunfire was exchanged between unidentified individuals who were engaged in an dispute.

President Judge James A. Gibbons
Lackawanna County

The carrier for the landowner filed a declaratory judgment action and asserted that coverage was barred under the assault and battery exclusion contained in the policy. After reviewing the policy as compared to the facts alleged in the underlying civil litigation Complaint, the trial court here agreed and granted the carrier’s Motion for Judgment on the Pleadings.

The trial court also rejected the injured party’s efforts to create issues of fact based upon affirmative defenses raised in the injured party’s New Matter responses to the declaratory judgment Complaint. In this regard, the trial court noted that there were boilerplate allegations in the New Matter pleadings and no factual allegations in support of the same.

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

Trial Court Reaffirms that Plaintiffs May Plead Recklessness With Reckless Abandon

In the case of Kafley v. Breneiser, No. 24-CV-3508 (C.P. Lacka. Co. April 24, 2025 Gibbons, J.), the court overruled Preliminary Objections filed by the Defendant to claims of recklessness asserted in a rear-end motor vehicle accident case. 

President Judge James A. Gibbons
Lackawanna County

In this decision, President Judge James A. Gibbons of the Lackawanna County Court of Common Pleas confirmed the current status of the law that allows Plaintiffs to plead recklessness in any given case so long as allegations of negligence are likewise asserted. 

In this regard, the court relied upon the Pennsylvania Superior Court decision of Monroe v. CBH2O, LP, 286 A.3d 785, 799 (Pa. Super. 2022).

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

Allegations of Recklessness And Punitive Damages Allowed to Proceed in MVA Case

In the case of Defreitas v. Arnstorf, No. 2023-CV-2022 (C.P. Lacka. Co. July 1, 2024 Gibbons, J.), the court denied a Defendant’s Preliminary Objections in the form of a demurrer asserted against the Plaintiff’s claim for punitive damages in a motor vehicle accident case.   

In its Opinion, the court reviewed Pennsylvania law regarding allegations of recklessness and claims for punitive damages viewed the claims together in deciding to overrule the Preliminary Objections that, according to the Opinion, were filed against the punitive damages claim.   

After reviewing the law, the court noted that the Plaintiff had asserted a valid claim for punitive damages where the Complaint generally alleged that the Defendant driver acted with deliberate and reckless disregard when the Defendant driver, among other things, failed to control her vehicle, failed to apply her brakes a sufficient time prior to the accident to avoid striking the Plaintiff’s vehicle, failed to take proper evasive action, failed to travel at a safe speed, and failed to stop at a red light.  The court noted that the Complaint additionally alleged that the Defendant driver acted recklessly when she drove a vehicle knowing that her driver’s license had been previously suspended due to a DUI. 

The court additionally overruled the Preliminary Objections by the Defendant owner to the claim of punitive damages after finding that the Complaint pled that the Defendant owner acted with the same deliberate and reckless disregard when she permitted the Defendant to use her vehicle despite knowing, or having reason to know, that the Defendant driver’s license had been suspended due to a DUI.   

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

Demurrer Asserted by Officers/Agents of Corporate Defendants Denied in Premises Liability Action

In the case of Bell v. S.W. Krauss, LLC, No. 2023-CV-1578 (C.P. Lacka. Co. May 1, 2024 Gibbons, J.), the court issued an Opinion in which, in part, overruled Preliminary Objections against individual Defendants who affiliated with a corporate Defendant in a personal injury matter.

According to the Opinion, the case arose out of an incident during which a Plaintiff was at a nightclub establishment in the early morning hours as a result of which she was allegedly hit by a stray bullet while she was allegedly located in the parking lot allegedly due to a dispute in the parking lot on the premises.

The Plaintiff sued various corporate entities as well as certain individuals who allegedly had relationships with those corporate entities.

The individual Defendants filed Preliminary Objections seeking to be dismissed by virtue of a demurrer.

Certain of the individual Defendants asserted that they were entitled to be dismissed because the Plaintiff’s Complaint failed to assert that those Defendants had acted with “misfeasance,” which is a requirement for negligence actions against corporate officers and agents.

Judge James A. Gibbons
Lackawanna County

Judge Gibbons reviewed the law in this regard and noted that, in general, an officer or agent of a corporation who takes no part in the commission of an alleged tort committed by the corporation is not individually liable to third parties for such a tort. 

However, an officer or agent of the corporation may be held liable tort under a “participation theory,” which states that the participating individual is subject to liability as an actor, not as an owner or officer. In order to impose liability under a participation theory under Pennsylvania law, a Plaintiff must establish that the individual officer or agent engaged in misfeasance rather than mere non-feasance.

The court agreed with the Plaintiff’s argument that the Complaint sufficiently pled a negligence cause of action against the individual Defendants as possessors of the property where the Plaintiff was injured, although not necessarily as corporate officers or agents.  As such, the individual Defendants demurrers were overruled.

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

Lackawanna County Continues With the Minority Rule of Allowing the Pleading of Recklessness in Every Case Regardless of Facts

In the case of Mangieri v. Chen, No. 22-CV-3149 (C.P. Lacka. Co. Oct. 18, 2022, Gibbons, J.), the court denied Preliminary Objections filed by a tortfeasor Defendant challenging the Plaintiff’s allegations of recklessness and for punitive damages in a rear-end accident matter.

The court noted that, in this rear-end accident matter, the Plaintiff alleged that the tortfeasor Defendant operated his vehicle in an outrageous, careless, and reckless manner. The Plaintiff also sought punitive damages.

The tortfeasor filed Preliminary Objections asserting that the Plaintiff’s allegations of reckless, willful and wanton conduct were baseless legal conclusions lacking any factual support.

Judge Gibbons followed the trend in Lackawanna County by ruling that recklessness is a state of mind which can be averred generally under Pa. R.C.P. 1019(b) such that the Plaintiff’s claims for punitive damages were allowed to proceed. In so ruling, the court again referred to the case of Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010).

In concluding his Opinion, Judge Gibbons confirmed that the tortfeasor Defendant would have the opportunity to revisit this argument at a later time of the case at the summary judgment stage. However, in the context of the Preliminary Objections, the same were overruled and the Plaintiff’s Complaint was allowed to proceed.

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

ARTICLE: PLEADING FOR CLARITY: Appellate Guidance Needed To Settle The Issue Of The Proper Pleading of Recklessness in Personal Injury Matters

Here is a LINK to my article entitled "PLEADING FOR CLARITY: Appellate Guidance Needed To Settle The Issue Of The Proper Pleading of Recklessness In Personal Injury Matters" which was just published in the January 2022 edition of The Pennsylvania Bar Association Quarterly.

Note that the article contains a detailed Scorecard of decisions handed down by the various county courts of common pleas all across the Commonwealth of Pennsylvania in recent years, which may prove helpful for your research on this issue, depending upon which county you are litigating the issue.

I send thanks to Professor Robert Rains, the Editor of the PBA Quarterly for his excellent editing of the article into a better article and for selecting this piece for publication.

Also thanking Phyllis Pilla for her editorial assistance with the article as well.

Anyone desiring a copy of any of the cases referenced in the article may contact me at dancummins@CumminsLaw.net.

ARTICLE: Plaintiffs Have Another Banner Year in Civil Litigation, Part 1

The below article of mine was published by the Pennsylvania Law Weekly on December 9, 2021 and is republished here with permission.  Part II is forthcoming.

Plaintiffs Have Another Banner Year in Civil Litigation, Part 1

By Daniel E. Cummins | December 09, 2021

Daniel E. Cummins, Clarks Summit firm Cummins Law. Courtesy photo

Where There Is a Will, There Is a Way

The year 2021 proved to be another banner year for the plaintiffs bar in terms of securing  important civil litigation court decisions that favor plaintiffs’ causes, some of which overturned decades of precedent going the other way. The concerted, and admirable, effort of the plaintiffs bar in continually fighting their good fight and in banding together to support certain judicial candidates to ensure that they make it up onto the bench continues to pay off in spades and in settlements. In essence, as confirmed by the decisions reviewed in this two-part article, where there is a will, there is indeed a way.

This first part of the article will review important decisions and trends in the automobile insurance law arena over the past year, and the forthcoming second part of the article will review the notable decisions in the area of general civil litigation law.

Household Exclusion

Back in 2019, the plaintiffs bar finally prevailed, after decades of effort, in convincing the Pennsylvania Supreme Court to rule that the household exclusion, found in automobile insurance policies, was invalid and unenforceable. The Pennsylvania Supreme Court ruled in this fashion in Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019), and confirmed the shift of the pendulum toward plaintiff’s causes.

The Pennsylvania Supreme Court fashioned its decision in Gallagher v. GEICO as eradicating the household exclusion across the board.  While federal court judges addressing the validity of the household exclusion thereafter largely followed the Pennsylvania Supreme Court’s mandate, some state court appellate and trial judges limited the Gallagher v. GEICO decision to its facts and noted that the household exclusion remained valid and enforceable in certain circumstances.

This year, the Pennsylvania Supreme Court had an opportunity to revisit the household exclusion again in the case of Donovan v. State Farm Mutual Automobile Insurance, 2021 Pa. Lexis 3394 (Pa. Aug. 17, 2021). In Donovan, the Pennsylvania Supreme Court answered questions certified to it by the U.S. Court of Appeals for the Third Circuit on issues surrounding inter-policy stacking and the household exclusion.

After finding that the stacking waiver form at issue in this case was invalid as applied to inter-policy stacking claims, the Pennsylvania Supreme Court went on to rule that the policy’s household exclusion was also unenforceable absent a valid written waiver of inter-policy stacking, because the language of that exclusion was incompatible with stacking. In this regard, the court cited to its previous decision in the case of Craley v. State Farm Fire and Casualty, 895 A.2d 530 (Pa. 2006).

The court in Donovan also reiterated its previous decision in Gallagher v. GEICO and again ruled that the household exclusion provision is invalid since it acted as a de facto waiver of stacking, when Pennsylvania law requires the carrier to secure a written waiver of stacked coverage to be secured from an insured.

It remains to be seen whether the federal courts and the lower state courts will now all fall in line and find that the household exclusion is invalid regardless of the facts presented.

Regular Use Exclusion

In a case of appellate first impression of Rush v. Erie Insurance Exchange, No. 1443 EDA 2020 (Pa. Super. Oct. 22, 2021), the Pennsylvania Superior Court affirmed a Northampton County Common Pleas Court decision in a declaratory judgment action and held that the regular use exclusion found in motor vehicle policies is unenforceable because it violates the motor vehicle financial responsibility law (MVFRL).

The regular use exclusion typically holds that a carrier need not provide UM or UIM coverage to a person who, unbeknownst to the carrier, is driving a vehicle that is regularly available for the use of that person and which vehicle is not covered under that carrier’s policy.

In this Rush case, a police officer was injured while driving a police car that was regularly available for his use. After securing a recovery against the drivers of the other vehicles in the accident, the police officer turned to his own personal automobile policies for UIM coverage.

Erie responded by asserting that the Regular Use Exclusion precluded coverage under the Erie Insurance policies.

In ruling that the regular use exclusion was unenforceable, the Superior Court found that the regular use exclusion impermissibly limits the scope of UIM coverage required by Section 1731 by precluding coverage if an insured is injured while using a motor vehicle that the insured regularly uses but does not own. Interestingly, this affirmance was based upon a different reasoning than the trial court that had instead relied upon the improper de facto waiver analysis set forth in the Gallagher v. GEICO household exclusion decision noted above.

Sudden Emergency Doctrine

In the case of Graham v. Check, 243 A.3d 153 (Pa. Dec. 22, 2020)(Op. By Wecht, J.), the Pennsylvania Supreme Court favored another plaintiff’s viewpoint when it addressed the standards for when the sudden emergency defense should be applied in a motor vehicle accident case.

In the majority opinion, it was reaffirmed that the burden of supporting the application of the sudden emergency doctrine lies with the party asserting it. Also reaffirmed was the rule that, if the emergency could have been avoided by the exercise of reasonable care, the doctrine should not be applied or included in the instructions to the jury.

The court then turned to the application of the sudden emergency doctrine in cases where a plaintiff was crossing the street within a crosswalk and is hit by an approaching motorist. In this regard, the court acknowledged that “since the advent of the automobile, Pennsylvania law has also imposed a heightened standard of care upon drivers to exercise particular vigilance when it is reasonably foreseeable that a pedestrian will cross their path, particularly at intersections.”  Accordingly, the court found that the application of the sudden emergency doctrine is to be “counterposed” against the “bedrock principle that a driver bears a heightened duty relative to pedestrians crossing at intersections.

In this pedestrian versus motor vehicle accident case of Graham v. Check, the Pennsylvania Supreme Court found that the trial court in this case erred in instructing the jury on the sudden emergency doctrine as the evidence in the case failed to lay a foundation for the provision of that instruction to the jury. 

In light of this decision by the Pennsylvania Supreme Court it is likely that the application of the sudden emergency doctrine will no longer be automatic in dart-out pedestrian cases, particularly in the case of a pedestrian who is within a crosswalk at the time of an incident.

Allegations of Recklessness

In recent years, there has been an increase in plaintiffs regularly pleading allegations of recklessness in personal injury cases, even in the absence of outrageous facts and circumstances.  

This has given rise to a split of authority among the trial court judges with regards to whether or not to grant preliminary objections asserted by civil litigation defendants to such claims. There are even some splits of authority on this issue within some of the same county courts.

One line of state court judges holds fast to the longstanding maxim that Pennsylvania is a fact-pleading state and that, therefore, claims of recklessness in personal injury matters must be supported by allegations of facts of an outrageous nature in order to be pursued. See Hilferding v. Zinn, No. 2020-SU-002187 (C.P. York Co. March 5, 2021 Flannelly, J.)  

These judges typically cite to the case of Ammlung v. City of Chester, 302 A.2d 491 (Pa. Super. 1973), in support of their decisions. Research has revealed decisions from at least 18 different county courts of common pleas that have ruled that plaintiffs must support claims of recklessness with sufficient outrageous facts or risk having that claim dismissed. 

Another line of state court judges in at least 9 different county common pleas courts have gone the other way and have ruled that claims of recklessness can be pleaded with reckless abandon in any personal injury case whatsoever, regardless of the facts presented. See e.g. Clauss-Walton v. Gulbin, No. 20-CV-4860 (C.P. Lacka. Co. May 21, 2021 Nealon, J.); Benedict v. Giombolini, No. 21-CV-1134 (C.P. Lacka. Co. Aug. 18, 2021 Gibbons, J.).  

These judges allowing claims of recklessness in any case whatsoever rely upon the case of Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010).  In Archibald v. Kemble, the Superior Court noted in language that is arguably dicta, that a claim of recklessness on the part of a defendant amounts to an averment regarding the state of mind of a defendant at the time of an accident and that, under express provisions of Pa.R.C.P. 1019(b), such averments as to the state of mind of a party may be generally pleaded in a personal injury complaint.  

While the cases of Ammlung and Archibald have provided mixed signals from the appellate courts on this issue, in its most recent pronouncement, the Pennsylvania Superior Court, in the personal injury case of Valentino v. Philadelphia Triathlon, 150 A.3d 483, 488-489 (Pa. Super. 2016), affirmed a trial court’s sustaining of a defendant’s preliminary objections seeking to strike allegations of reckless conduct, outrageous acts and gross negligence in a case where the appellate court agreed that the facts pleaded in the underlying complaint were insufficient to support those types of claims.

Despite Valentino, this issue trended in 2021 and is expected to result in continued litigation in the years ahead until further appellate guidance is provided.

Advanced Communications Technology (ACT) Here to Stay

Over the past two years, the COVID-19 pandemic has also changed the face of civil litigation in Pennsylvania with the use of Advanced Communications Technology (ACT), such as Zoom, as the new normal. It appears that ACT is here to stay.

In fact, the Lackawanna County Common Pleas Court, through the efforts of Judge Terrence R. Nealon and the Lackawanna Bar Association civil rules committee, is poised to become the first county court to adopt a new local rule on the scope and parameters for continued use of ACT in that court. The new local rule has been written and awaits approval from higher on up in the Pennsylvania court system.

It remains to be seen if any amendments or additions will be made to the statewide Pennsylvania Rules of Civil Procedure regarding the extent to which ACT may continue to be used at all levels of the court system once the pandemic hopefully subsides.

Conclusion

As the above review of the highlights (and lowlights) from the past year in civil litigation shows, the pendulum has certainly swung in favor of the plaintiffs bar in terms of court decisions.  Plaintiff’s attorneys will likely continue to push their important issues up the appellate ladder in the hopes of continued success in these plaintiff-friendly times. On the defense side, in addition to continuing to litigate many of these important issues, the defense bar may be wise to also increase efforts to effectuate changes in the law through the Legislature as a means to counter the adverse rulings in the court system.

In Part 2 of this article, set to appear in next week’s edition of the Pennsylvania Law Weekly, the top cases over the past year in the general civil litigation context will be reviewed.

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

Copyright 2021. ALM Media Properties, LLC. All rights reserved.

Motion To Bifurcate Lackawanna County Post-Koken Trial Denied

In the case of Nebesky v. Pagnotti, No. 2019-CV-3170 (C.P. Lacka. Co. Sept 15, 2021 Gibbons, J.), the court addressed a Motion to Bifurcate the Trial in this post-Koken automobile accident litigation. After reviewing Pa. R.C.P. 213(b) and after noting that the parties had cited two (2) court decisions at the trial court level from around the Commonwealth, this court chose to deny the Motion to Bifurcate.

Judge Gibbons noted that he believed that the attorneys involved would be able to outline their respective positions on the third party negligence claims and the UIM breach of contract claims to the jury in such a way as to avoid any confusion or prejudice. The court additionally felt that any potential prejudice to the third party Defendant in having an insurance company as a Co-Defendant could be rooted out in Voir Dire.

Judge James A. Gibbons
Lackawanna County

The Court also noted that the jury would be properly instructed on the law applicable to the negligence claims as well as the breach of contract claims.

Judge Gibbons also noted that he wished to remain consistent with the prior decisions out of Lackawanna County denying Motions to Bifurcate in post-Koken matters.


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

Recent Recklessness Decisions of Note

There continues to be a split of authority in the state trial court’s across the Commonwealth of Pennsylvania relative to the issue of whether a claim for recklessness in a personal injury case must be supported by specific averments of outrageous facts or whether such a claim can be generally pled in any case whatsoever regardless of the facts presented.

According to my research, which has been included in a proposed article submitted for possible pulication in the January of 2022 edition of the Pennsylvania Bar Association Quarterly, at least 18 county courts have ruled that while a claim of recklessness may be generally stated in a Complaint such allegations must still be supported by a sufficient set of outrageous facts in order to proceed.  The research also reveals that only at least 9 county courts have ruled that a claim of recklessness may be stated in in any case whatsoever regardless of the facts alleged.  It is also noted that there are some splits of authority within certain counties.

In its most recent decision on the issue, the Pennsylvania Superior Court affirmed a trial court's granting of preliminary objections asserted against claims of recklessness where it was found that the Plaintiff had only alleged facts in support of a negligence claim and not any facts to show any outrageous behavior on the part of the defendant.  See Valentino v. Philadelphia Triathlon, LLC, 150 A.3d 483, 488-489 (Pa.Super. 2016).   Notably, in Valentino, the Pennsylvania Superior Court did not even reference the dicta from Archibald v. Kemble as being of any moment on the question presented.

Below are some additional trial court decisions that have come to light:


Ulshafer v. Roth, No. S-711-21 (C.P. Schuyl. Co. Aug. 30, 2021 Miller, J.) (In an Order only, the court sustained a Defendant’s Preliminary Objections against allegations of recklessness in a motor vehicle accident case after the defense asserted that the Complaint did not have sufficient allegations of outrageous facts to support such claims.) (It is noted that Attorney Stephen T. Kopko of Cummins Law was defense counsel in this matter.) Click HERE to view this Court Order.

 

 

Fermin v. Sanchez, No. 1235-CV-2021 (C.P. Monroe Co. June 15, 2021 Zulick, J.) (By Order only, the court denied Defendant’s Preliminary Objections to recklessness and held that, pursuant to Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009), recklessness is a state of mind which may be averred generally in a Complaint.) Click HERE to view this Court Order.


Benedict v. Giombolini, No. 21-CV-1134 (C.P. Lacka. Co. Aug. 18, 2021 Gibbons, J.) (Court overruled Defendant’s Preliminary Objections asserted against allegations of recklessness in a rear-end motor vehicle accident case; court relies upon Archibald v. Kemble for the proposition that an allegation of recklessness is an allegation as to a party’s state of mind which may be pled generally.) Click HERE to view this Court Opinion.


Heisler v. Harvey, No. 2021-CV-0-0273 (C.P. Leb. Co. Aug. 25, 2021, Jones, J.) (The court overruled a Defendant’s Preliminary Objections asserted against allegations of recklessness in a head-on motor vehicle accident case; the court relied upon, in part, Pa.R.C.P. 1019(b). The court found that the Preliminary Objections stage was too early in the matter to rule out a claim for punitive damages when the question of whether conduct is reckless or outrageous is one that is better left for after the close of discovery; as such, the court found that the Defendants attempt to rule out a punitive damages claim by requesting the court to strike language from the Complaint was premature. Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Kevin P. Foley of the Foley Law Firm in Scranton for providing me with copies of the Fermin, Benedict, and Heisler cases.




Maloney v. Murray, No. 2020-SU-000629 (C.P. York Nov. 9, 2020 Menges, J.)(The court overruled a defendant’s Preliminary Objections in a car accident case after finding that the facts asserted by the plaintiff in the Complaint were sufficient to provide the defendant with appropriate notice to defend a cause of action for recklessness.). Anyone wishing to review this case may click this LINK.

I send thanks to Attorney Carrie McConnell of the Harrisburg, PA office of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this Maloney case to my attention.




Oathout v. Masonic Temple Assoc., No. 10892 - 2020 (C.P. Erie Co. July 15, 2020 Ridge, J.)(The court overruled a defendant’s Preliminary Objections in a slip and fall case after finding that the facts asserted by the plaintiff in the Complaint were sufficient to support recklessness claims.).
Anyone wishing to review this case may click this LINK.


I send thanks to Attorney Bruce L. Decker, Jr., of the Erie, PA office of MacDonald, Illig, Jones & Britton, LLP for bringing this Oathout case to my attention.

Source of image:   Photo by Brendan Church on Unsplash.com.

Summary Judgment Denied in Football Sidelines Injury Case

In the case of Cantafio v. Valley View School District, No. 2018-CV-2991 (C.P. Lacka. Co. May 13, 2021 Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas addressed a Motion for Summary Judgment filed by the Defendant, Valley View School District, in a case in which the Plaintiff's decedent was standing along the sidelines of a high school football game and was hit by players who spilled onto the sidelines during a play, which caused the decedent to be propelled backwards, as a result of which he ultimately fell backwards and struck his head on an asphalt surface which bordered the playing field. 

The decedent unfortunately suffered injuries which ultimately resulted in his death approximately ten (10) days later. The decedent’s son was on the stand with the decedent’s grandson and witnessed the incident.

The Defendant, Valley View School District, offered several reasons in support of its Motion for Summary Judgment. The school district argued that, as a political subdivision, it was entitled to immunity under the Political Subdivision Tort Claims Act. 

The school district Defendant also asserted that it was entitled to judgment under the law of the no-duty doctrine. 

The Defendant additionally asserted that it was entitled to summary judgment under assumption of risk doctrine and/or that the Plaintiff had failed to establish that the Defendant was negligent as a matter of law. 

On the claims asserted by the decedent's son, the Defendant argued that the Plaintiff had failed to put forth facts sufficient to support a cause of action for negligent infliction of emotional distress.

The court addressed each of these arguments in term and denied all of them.  In the end, the school district’s Motion for Summary Judgment was denied.

In his Opinion, Judge Gibbons provides a thorough update on the current status of the law surrounding the no-duty doctrine and the immunity provided under the Political Subdivision Tort Claims Act.

Judge Gibbons also confirmed that the assumption of risk doctrine remains a valid defense under Pennsylvania law. After outlining the elements of that defense, the court found that the Defendant had not offered sufficient proof to compel the application of that doctrine. The court emphasized that there remains a “reluctance under Pennsylvania law to find that the assumption of the risk applicable unless it is quite clear that the specific risk that occasioned injury was both fully appreciated and voluntarily accepted.” [citation omitted] [emphasis in original citation deleted here]

With regard to the claim for negligent infliction of emotional distress asserted on behalf of the decedent’s son, the court outlined the current elements of that law and found that issues of act prevented the entry of summary judgment.


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

Theory of "Wave-on Liability" in Car Accident Case Allowed to Proceed to Jury

In the case of McLaughlin v. Caban, No. 2017-CV-5303 (C.P. Lacka. Co. June 24, 2020 Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas addressed a Motion for Summary Judgment filed by a Defendant driver in a motor vehicle accident case in which the Defendant driver asserted that there was no causal connection between her actions and the subject accident based upon this Defendant allegedly waved to the Plaintiff to proceed out of a parking lot at which point there was an accident between the Plaintiff's vehicle and a third vehicle. 

The court noted that the Plaintiff’s claim against the Defendant filing the Motion for Summary Judgment was based on a theory of “wave-on liability.” The Plaintiff alleged that the waving Defendant’s negligence included failing to confirm that the roadway was clear before indicating to the Plaintiff to proceed, failing to warn the Plaintiff of any oncoming traffic, and improperly waving another driver to proceed into the roadway when it was not safe to proceed. 

The Defendant who waved the Plaintiff to proceed filed a Motion for Summary Judgment arguing that the Plaintiff’s theory of liability failed because the Plaintiff’s deposition testimony confirmed that the Plaintiff interpreted the Defendant’s wave to mean only that the Defendant who waved would stop to allow the Plaintiff to proceed out of the parking lot and did not signify anything else. In other words, the Defendant who waved asserted in the motion that the Plaintiff never relied upon the Defendant’s waving as an indication that no other traffic was approaching. 

Judge Gibbons reviewed the law in Pennsylvania on the liability of a signaling motorist under §324A of the Restatement (Second) of Torts (1965) and the case law thereunder. That section of the Restatement is entitled “Liability to Third Person for Negligent Performance of Undertaking” basically holds that one who assumes the act, even gratuitously, may thereby become subject to the duty of acting carefully. 

The court noted the central issue in this context is for the jury to determine the meaning of the signal in question. The court noted that it is the duty of the jury to determine if the signally driver’s action was something other than a mere courtesy or a yielding of the right-of-way based upon the facts alleged. Where issues in this regard are in dispute, the case must be left for the juror’s consideration. 

Judge Gibbons also noted that a court could find that a causal connection between the signal and the injury does not exist at the summary judgment stage only where it is clearly and unequivocally stated that the Defendant waver’s signal was interpreted only to mean that that Defendant would remain stopped so that the other driver could proceed and that the Plaintiff never relied upon the signal as an indication that no other traffic was approaching. 

Here, the court reviewed the testimony of the parties and found that issues of fact remained on the questions presented. As such, the court denied the Motion for Summary Judgment and allowed the issue to proceed to trial. 

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

ARTICLE: "Split of Authority Dominates Issue of Proper Claims of Recklessness"

The below article of mine appeared in the Pennsylvania Law Weekly online on July 9, 2020 and in print on July 14, 2020 and is reprinted here with permission.

Split of Authority Dominates Issue of Proper Claims of Recklessness

By Daniel E. Cummins | July 09, 2020

Daniel E. Cummins of Cummins Law.

A recent trend in Pennsylvania civil litigation matters involves the inclusion of claims of recklessness by plaintiffs in all types of cases and regardless of the facts presented.

The trend has risen to the level such that one of the first things any attentive insurance defense attorney does with every new assignment to defend is to review the complaint to determine whether claims of recklessness are included in the complaint. This increasing trend of plaintiffs including claims of recklessness in personal injury complaints has resulted in more and more preliminary objections being filed. The trial court decisions that have come down on these preliminary objections has led to a split of authority on the propriety of recklessness claims under Pennsylvania law.

Recklessness Has Its Place

There is no question that the law allows for claims of recklessness to be included in complaints for cases involving outrageous facts that would also support a claim for punitive damages. For example, claims of recklessness are routinely upheld in cases involving accidents and injuries arising resulting from tortfeasors driving under the influence, tractor trailer drivers driving in a distracted fashion or with respect to dog owners who own dogs who have bitten before.

Issues with respect to claims of recklessness arise when a plaintiff casually include such claims in seemingly form complaints filed after run-of-the-mill motor vehicle accidents or a routine trip-and-fall matter having no outrageous facts or egregious conduct.

The danger of allowing claims for recklessness to remain in a Complaint for the defense is that it opens the door for the Plaintiff to later add or pursue punitive damages which would not be covered by a Defendant’s insurance. To not challenge such improper claims could subject the tortfeasor to personal financial exposure and the defense attorney to a malpractice claim.

As such, most defense counsel will approach plaintiffs counsel seeking a stipulation on the withdrawal of claims of recklessness with the plaintiff reserving the right to file a motion to reinstate the claims if discovery later reveals facts to support the claims. Most plaintiffs attorneys will agree to the stipulation to avoid the delays attendant with fighting preliminary objections.

Where a stipulation can not be reached, preliminary objections will be typically filed which has given rise to the split of authority on the issue that currently exists in Pennsylvania. The two lines of court decisions are reviewed below.

One Line: Claim of Recklessness Must Be Supported by Outrageous Facts

Under one line of cases, the trial courts of Pennsylvania have held that claims of recklessness should be routinely dismissed in cases where the facts only support a claim of negligence and do not rise to the level of outrageous necessary to support a claim for punitive damages.

In a decision handed down just recently on June 26, Judge David J. Williamson of the Monroe County Common Pleas Court confirmed in the case of Farina v. Emerson, PICS Case No. 20-0563, that a claim of recklessness cannot proceed unless it is supported by facts alleging outrageous conduct on the part of a defendant. In Farina, the court found that a plaintiff failed to allege sufficient facts to support a claim of recklessness to proceed against a dog owner in a dog bite case. As such, that claim was summarily dismissed as improper.

Williams previously ruled in a similar fashion in his prior decision in the case of Vella v. Henderson, No. 873-CV-2019 (C.P. Monroe Co. 2019), in which he granted a defendant’s preliminary objections in part, with respect to the plaintiff’s claims of recklessness in a standard rear-end motor vehicle accident. The court granted these preliminary objections after finding that the complaint filed by the plaintiff did not contain any actual allegations to support any claims that the defendant either purposefully caused the accident or willfully ignored the likelihood of a substantial risk in this rear-end accident case.

Rather, the plaintiff had simply alleged that the defendant operated a motor vehicle at a high rate of speed, failed to reduce his speed to avoid a collision, failed to maintain a proper lookout, failed to maintain a safe distance, and failed to otherwise use due care in the operation of his vehicle. Williamson found that these types of allegations amounted to nothing more than claims of negligence. As such, the court ordered that the recklessness language in the complaint be stricken.

Along the same lines, Judge Jennifer R. Slevtold of the Northampton County Common Pleas Court also sustained preliminary objections filed by a defendant in the motor vehicle accident in the case of Wasilow v. Allen, No. C-48-CV-2016-00633 (C.P. North. Co. 2016).

In Wasilow, the plaintiff generally alleged that the collision occurred as a result of the defendant’s carelessness, negligence and recklessness. The plaintiff more specifically alleged that the defendant failed to have his vehicle under proper control, failed to observe other vehicles on the road, failed to keep a reasonable lookout, failed to operate his vehicle in accordance with traffic conditions and that the defendant was operating his vehicle closer than was reasonable under the circumstances involved in this rear-end accident matter.

The court found that these types of allegations did not rise to the level of recklessness or support any claim for punitive damages. As such, the defendant’s preliminary objections were sustained and the plaintiff’s allegations of recklessness, reckless conduct, as well as the plaintiff’s request for punitive damages, were all stricken from the complaint.

In another decision out of Northampton County, Judge Anthony S. Beltrami, also sustained preliminary objections by the defendant in the standard motor vehicle accident case of Roma v. Finney, PICS Case No. 15-0641 (C.P. North. Co. 2015). In Roma, the plaintiff alleged negligence and recklessness on the part of the defendant in this rear-end motor vehicle accident case. Notably, the plaintiff did not also include a request for punitive damages in the complaint.

The court in Roma ruled that, as there were no facts pleaded in the complaint to support claims of recklessness and given that no claim for punitive damages was asserted, the preliminary objections were granted. The court further found that the allegations of recklessness were deemed to be immaterial to proving a cause of action of negligence.

The decisions in this line of cases therefore impose a requirement that any claim of recklessness must be supported by appropriate facts alleged in the complaint or risk being stricken or dismissed.

Second Line: Claims of Recklessness Are Allowed in Every Case

A second line of more liberal Pennsylvania trial courts have instead chosen to follow the Pennsylvania Superior Court’s decision in the case of Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010) to support the notion that “recklessness” is a state of mind that can be generally pleaded in any complaint whatsoever regardless of the facts presented.

Notably, the Archibald case did not come before the Pennsylvania Superior Court on any pleadings issues; rather, at issue was a resolution of summary judgment issues in a personal injury case, including the general question of whether recklessness is a type of a standard of care relative to a claim of negligence. As such, any comments by the Archibald court on the more specific issue of properly pleading recklessness in a complaint were arguably dicta.

Also, at the outset of its opinion, the court in Archibald emphasized that the “crux” of its decision was on “the standard of care to be applied” under the facts of that personal injury case, i.e., not on any pleadings issues. The Archibald court went onto deny the summary judgment motion and, in so ruling, noted that its decision on the issue of the standard of care for recklessness should not be read to allow a claim of recklessness to rise to the level of a separate tort that must be pleaded within the applicable statute of limitations.

The Superior Court in Archibald further commented that, under Pa. R.C.P. 1019(b), “an example of a condition of the mind that may be averred generally is ‘wanton conduct’ and that “because recklessness is also known as ‘wanton and willful misconduct,’ ‘recklessness’ is a condition of the mind that may be averred generally.” Those trial courts in the second line of cases that have relied upon this language in Archibald to rule that recklessness can be pleaded in any case whatsoever regardless of the facts. See Wolff v. Taylor, No. 19-CV-4988 (C.P. Lacka. Co. 2020 Nealon, J.).

In Wolff, the plaintiff’s claims of recklessness were allowed to proceed beyond the pleadings stage based upon allegations that the defendant-driver ran a red light and failed to keep a proper lookout at the time the collision occurred. The court did note that the defense retained the right to revisit the issue at the conclusion of discovery by way of a motion for summary judgment.

Judge James A. Gibbons, also of the Lackawanna County Common Pleas Court, followed this reasoning in his own decision in the case of Nebesky v. Pagnotti, No. 2019-CV-3170 (C.P. Lacka. Co. 2019). In Nebesky, Gibbons denied a defendant’s preliminary objections filed against recklessness allegations in this regard in a case involving a standard motor vehicle accident involving a pedestrian plaintiff. Similar to Nealon, Gibbons also noted that a defendant retained the right to revisit the validity of the claims of recklessness by way of a motion for summary judgment once discovery had been completed.

Proving how troublesome this issue of pleading is, not only is there a split of authority across the commonwealth on this issue, but there is even also a split of authority on the issue within the Northampton County Common Pleas Court. Despite the two above-referenced decisions out of Northampton County rejecting claims of recklessness in the absence of facts to support the same, Judge Samuel P. Murray of the same court allowed such claims of recklessness to proceed in the case of Speight v. Schlacter, No. C-48-CV-2019-6973 (C.P. North. Co. 2020).

In that Speight, Murray followed those cases that rely upon the Pennsylvania Superior Court decision in Archbald under the rationale supported by Pa. R.C.P. 1019(b). In allowing the claims of recklessness to proceed as a generally allowed pleading, the court in this matter also emphasized that the plaintiff had not asserted any claim for punitive damages in the complaint. See also Doyle v. Dianna, No. C-48-CV-2013-810 (C.P. North. Co. 2013 Baratta, J.).

How Will a Particular Court Rule?

When a defendant files preliminary objections to allegations of recklessness, a demurrer is typically asserted. In this regard, the defense argues that the complaint does not contain sufficient facts to support a claim of recklessness. The issue comes down to whether the trial court will review the complaint to see if there are sufficient outrageous facts pleaded in the complaint to support the claim, or will the trial court simply decide that claims of recklessness can be pleaded in any case regardless of the facts alleged.

While appellate guidance would prove helpful on this issue, such guidance may be hard to come by. It does not appear that this issue from the context of the pleadings stage of the case is not immediately appealable. As such, it may be some time before the appellate courts will have an opportunity to address this issue and settle it once and for all. In the meantime, the issue of a proper pleading of recklessness may depend on what county court the issue is raised and, in some counties, may be dependent upon which particular trial court judge will decide the question.



Daniel E. Cummins is a partner in the Scranton law firm of Cummins Law where he focuses his practice in automobile accident litigation matters as well as premises liability and products liability cases. Contact him at dancummins@cumminslaw.net.

Judge Gibbons Addresses Multiple Issues With Respect to Injury Sustained On Sidelines of Football Game

In the case of Cantafio v. Valley View School District, No. 2018-CV-2991 (C.P. Lacka. Co. May 29, 2020, Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas addressed several different issues in a wrongful death and survival action arising from an accident that occurred during a high school football game.

According to the Opinion, a play spilled onto the sideline, as a result of which the adult Plaintiff, who was standing along the sidelines as a team statistician, was struck and caused to fall backwards and land violently on a nearby asphalt surface. The Plaintiff sustained ultimately fatal injuries.

The decedent’s estate filed suit alleging negligence in the design and construction of the high school football stadium. The Plaintiff’s also asserted claims of negligent infliction of emotional distress, wrongful death, and a survival action against multiple Defendants. The original Defendants joined in certain Additional Defendants.

The court was faced with various Preliminary Objections raised by the Defendants with respect to both the Complaint and the Joinder Complaint.

Of note, the court addressed the Defendant high school’s Preliminary Objection asserting that he Plaintiff’s Complaint should be dismissed because the Plaintiff did not provide written notice of the incident to the school district within six (6) months of the incident was required by the law for claims of against the school. The court overruled this objection since the high school admitted that, although formal notice was not provided by the Plaintiff, the school was obviously aware of, and had actual notice of, the incident giving rise to the lawsuit. As such, this case was held to fall under an exception to the six (6) month requirement under the statute since the high school had actual notice of the event.

The court also rejected the high school’s claim that the Plaintiffs’ Complaint should be dismissed under the “No Duty” doctrine given that the decedent knowingly exposed himself to foreseeable injuries which could result from standing on the sideline of a football field, a few feet from where the game was taken place.

While the court noted that the “No Duty” rule provides that a Defendant owes no duty of care to warn, protect, or ensure against risk which are “common, frequent and expected” and “inherent” in an activity, the court overruled this Preliminary Objection after concluding that the risk faced by the Plaintiff, which was the risk of death as a result of a collision with players, which caused the Plaintiff to strike his head on an asphalt curb located near the field of play, was not a risk that could be considered to be common, frequent, or expected to be inherent in the game of football.

The court also overruled the high school’s Preliminary Objection asserting that the school was immune from liability under the Political Subdivision Tort Claims Act as a local agency as defined by the act. The court stated that a Preliminary Objection is a procedurally improper effort to claim immunity as such claims must be raised under a responsive pleading as “new matter” given that immunity is an affirmative defense under Pa. R.C.P. 1030.

On yet another separate issue addressed in this Opinion, Judge Gibbons also followed the rule in Lackawanna County with respect to claims of recklessness by denying the Preliminary Objections asserted by the Defendant to such claims after finding that, under Pa. R.C.P. 1019, allegations of recklessness, as an allegation pertaining to the state of mind of the actor, can be pled generally.

The court also denied Preliminary Objections to the Plaintiffs’ claim for negligent infliction of emotional distress based upon the fact that the decedent’s son was in the audience at the football game and observed his father’s accident. The court overruled the Preliminary Objections in this regard after finding that the Plaintiff pled sufficient facts to move forward on that claim.

The court also overruled various Preliminary Objections filed by the Additional Defendants after finding that the Joinder Complaints had pled sufficient facts to support the claims of contribution and/or indemnity.

The court also rejected Preliminary Objections by one (1) Defendant who had asserted that it was entitled to have the claims against it arbitrated under an arbitration agreement entered into by that Defendant with the high school Defendant. The court overruled this position after finding that the arbitration agreement was unenforceable in this action where the underlying dispute involved several entities that were not a party to the agreement.

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


I send thanks to Attorney Harry McGrath of the Kingston, Pennsylvania law firm of Fellerman & Ciarimboli for bringing this decision to my attention.

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.