Allegations of Recklessness Allowed to Stand in a Complaint

In the case of Lupin v. Evans Delivery Co., Inc., No. 3159-CV-2024 (C.P. Monroe Co. Jan. 21, 2025 C. Daniel Higgins, Jr., J.), the court overruled a Defendant’s Preliminary Objections against allegations of recklessness in a civil litigation matter.

The court reviewed the current status of the law and noted that, under Pa. R.C.P. 1019(b), allegations regarding malice, intent, knowledge, and other conditions of the mind may be generally alleged.

This court also noted that the Superior Court has concluded that allegations of wanton conduct is a condition of the mind that may be alleged generally. This court also noted that the Superior Court had held that, because allegations of recklessness are synonymous with allegations of wanton and willful misconduct, allegations of recklessness may also be alleged generally.

As such, the court overruled the Defendant’s Preliminary Objections.

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

Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 20, 2025).

Allegations of Recklessness Allowed to Stand in a Complaint

In the case of Johnson v. Parderlikes, No. 5920-CV-2023 (C.P. Monroe Co. Jan. 21, 2025 C. Daniel Higgins, Jr., J.), the court overruled a Defendant’s Preliminary Objections against allegations of recklessness in a civil litigation matter.

The court reviewed the current status of the law and noted that, under Pa. R.C.P. 1019(b), allegations regarding malice, intent, knowledge, and other conditions of the mind may be generally alleged.

This court also noted that the Superior Court has concluded that allegations of wanton conduct is a condition of the mind that may be alleged generally. This court also noted that the Superior Court had held that, because allegations of recklessness are synonymous with allegations of wanton and willful misconduct, allegations of recklessness may also be alleged generally.

As such, the court overruled the Defendant’s Preliminary Objections.

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

Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 20, 2025).

Court Quashes Subpoena For Records As Too Broad in Scope

In the case of The Cincinnati Ins. Co. v. K&K Fire Protection Enterprises, Inc., No. 6060-CV-2021 (C.P. Monroe. Co. Nov. 20, 2024 C. Daniel Higgins, Jr., J.), the court laid out the law pertinent to a Motion to Quash a Subpoena and related Motions for Protective Orders on records sought by subpoenas.

This case arose out of a fire loss. The Plaintiff claimed that inadequate maintenance by the Defendant was the cause of the fire. 

At issue before the court was a subpoena that the Defendant had issued to another entity seeking maintenance records related to the fire protection systems on the premises.

The entity that was subpoenaed asserted that the records in question no longer existed.

The court denied that entity’s Motion to Quash the subpoena and for a Protective Order as to those records. The court noted that it expected an affidavit from that entity to confirm, under oath, that the records requested no longer existed.

The subpoena at issue also sought additional other records that the court found were not relevant to the claims against the Defendant. The court found that the subpoena requests for those other records were too broad in scope.  As such, the court quashed the subpoena for those records after find that the subpoenas submitted to the entity that was requested to produce the records amounted to unreasonable annoyance embarrassment oppression, burden, or expense.

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


Source: The Legal Intelligencer Common Pleas Case Alert. (Jan. 8, 2025).

Discovery Sanctions Awarded

In the case of Hamilton Law Group P.C. v. Hardenstine, No. 1464-CV2020 (C.P. Monroe Co. Nov. 22, 2024 C. Daniel Higgins, Jr., J.), the court granted a Motion for Discovery Sanctions after the Defendants failed to obey a court Order regarding the production of discoverable documents.

The court found that the Defendants’ continued and willful refusal to supply timely and full responses to discovery, even after being ordered to do so, demonstrated disdain towards the court. The court found that appropriate sanctions were authorized by Pa. R.C.P. 4019(a).

The court reaffirmed the general law of Pennsylvania that the imposition of discovery sanctions is a matter that falls under the broad discretion of a trial court judge. Judge Higgins noted that the factors to be considered were (1) the prejudice endured by the non-offending party and the ability of the opposing party to cure any prejudice; (2) the non-complying party’s willfulness or bad faith in failing to provide the requested discovery, (3) the importance of the excluded evidence in light of the failure to provide discovery, and (4) the number of discovery violations by the defending party.

Here, the court granted the Motion for Sanctions and ordered the Defendants to pay $750.00 in attorneys’ fees to the Plaintiffs’ attorneys. The Defendants were also ordered to provide full and complete Responses to the Request for Production of Documents at issue within thirty (30) days.

The court otherwise noted that, if the Defendants again fail to comply, the Plaintiffs were invited to apply for additional sanctions, including attorney’s fees and, possibly incarceration.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 16, 2025).

Trial Court Addresses John Doe Allegations and Informed Consent Claims in Medical Malpractice Case

In the case of Meisse v. Cohan, No. 1821-CV-2022 (C.P. Monroe. Co. March 24, 2023 Higgins, J.), the court sustained in part and overruled in part Preliminary Objections in a medical malpractice action.

According to the Opinion, Plaintiff’s decedent was treated by the Defendant physician for symptoms related to Crohn’s Disease.

The Defendant physician allegedly prescribed the decedent medicine but allegedly never sought to perform tests to determine if the medication was appropriate for the decedent. The decedent died thereafter, allegedly from liver failure.

The decedent’s estate filed this lawsuit and the Defendant filed Preliminary Objections.

In part, the Defendant objected to the “Doe” designations in the Plaintiff’s Complaint on the grounds that the Plaintiff failed to maintain the action against Doe Defendants in compliance with Pa. R.C.P. 2005(b) because that rule mandates that a factual description of each unknown Defendant be provided, which was not done in this case.

The Plaintiff asserted that the identities of the Doe Defendants could be revealed through discovery.

Although the court noted that the Plaintiff lacked factual descriptions about the Doe Defendants because that information was within the Defendant’s control, the court nevertheless held that that Rule 2005 prohibits the use of a class of Defendants as a placeholder or a catch-all category. As such, these Preliminary Objections of the Defendants were sustained.

The court additionally sustained Preliminary Objections asserted by the Defendant under which it was argued that the Plaintiff failed to adequately plead claims against associated cooperations. The court found that, although the Defendant was on reasonable notice of the claims against them in the periods of treatment, the Plaintiff had still failed to identify the corporations and had, instead, similarly used a catch-all category. As such, these objections were sustained as well.

The court sustained the Defendant’s Preliminary Objection asserted that corporate negligent claims should be pled in a separate count under Pa. R.C.P. 1020(a).

Judge Higgins did overrule the Defendant’s Preliminary Objections to the Plaintiff’s inclusion of a claim of informed consent in the Complaint.

The court noted that Pennsylvania law typically holds that doctors must obtain informed consent prior to performing surgical or operative procedures. However, to maintain a cause of action under 40 P.S §1303.504, Plaintiff must allege a failure arising from one of the following: surgery, anesthesia, the administration of radiation or chemotherapy, the administration of a blood transfusion, the insertion of a surgical device, or the administration of an experimental medication device.

Given that the Plaintiff had referred to experimental treatment in her Brief in Opposition to the Preliminary Objections, the court overruled this objection of the Defendant.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 25, 2023).

ARD Can Be Considered a Prior Conviction in Some Contexts

In the case of Davilla v. Dept. of Transp., No. 4478-CV-2020 (C.P. Monroe Co. June 11, 2021 Higgins, J.), the court denied a licensee’s suspension appeal.

This decision is of note given that the court ruled that the licensee’s prior acceptance into the Accelerated Rehabilitative Disposition (ARD) Program was properly considered to be a prior conviction under the Motor Vehicle Code for purposes of imposing a civil collateral consequence of his conviction.

According to the Opinion, the licensee previously entered into an ARD Program due to a prior DUI.

While the court noted, based upon Pennsylvania precedent, that prior acceptance into an ARD Program could not be considered to be a prior offense in order to increase a criminal penalty against the licensee, this matter involved a civil proceeding.

The court noted that a license suspension is a collateral civil consequence of a criminal conviction. Accordingly, the court found that the licensee’s prior ARD acceptance was considered a prior conviction under the Motor Vehicle Code for purposes of imposing a civil collateral consequence of his conviction.

As such, the court denied the licensee’s license suspension appeal.

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


Source: “Digest of Recent Opinions,” Pennsylvania Law Weekly (July 29, 2021).


Commentary: This decision may raise a question as to whether a DUI Defendant’s acceptance into an ARD Program may count as a criminal conviction for DUI under the Motor Vehicle Code for purposes of determining whether a limited tort Plaintiff falls under an exception to the limited tort rule where the accident involved a DUI Defendant.

Source of image:  Photo by Mathilde Langevin on unsplash.com.

Release Signed by Plaintiff Found to Preclude Other Claims

In the case of Slinger v. Sal-Mart, Inc., No. 9763-CV-2018 (C.P. Monroe Co. Oct. 29, 2020 Higgins, J.), the court found that the unambiguous language of a Release previously executed by the Plaintiff covered potential claims by the Plaintiff against other third parties and, as such, the court granted the third party Defendant’s Motion for Summary Judgment. 

According to the Opinion, the Plaintiff sustained injuries when he was hit by a truck which slid on ice and crushed the Plaintiff against a dumpster. The Defendant landowner, Sal-Mart (not a typo), owned the property where the incident occurred.

The Plaintiff sued Sal-Mart and Sal-Mart joined into the case the driver of the truck that was involved in the accident.

During the course of this matter, Sal-Mart filed a Motion for Summary Judgment asserting that a Release agreement previously entered into by the Plaintiffs and the truck driver barred the Plaintiff from seeking a recovery against Sal-Mart. 

The record confirmed that the Plaintiff had previously executed a Release in favor of the truck driver, as well as their heirs, executors, administrators, agents, assigns, and all other persons, firms or corporations which might be claimed to be liable in exchange for payment of $250,000.00. 

In this matter, the court noted that the Plaintiff did not claim any fraud with respect to the execution of the Release and admitted that he had either read the document himself or had someone else read it to him.

The Plaintiff asserted the existence of a mutual mistake in that both parties to the Release had believed that the Release only applied to the settling parties and not any other potentially liable parties.

The court noted that the clear language of the settlement agreement conflicted with the Plaintiff’s assertion that the Release only applied to the truck driver. 

The court otherwise noted that, the Plaintiff’s deposition testimony indicated that he was aware of the terms of the Release and was under no time pressure to sign it. It was also confirmed that, although the Plaintiff had the opportunity to consult with an attorney prior to signing a Release, he had chosen not to do so.

Given that the court found that the language of the Release was unambiguous in that it not only applied to the truck driver but to anyone else the Plaintiff may have contemplated suing in connection with the accident, the summary judgment motion filed by the Defendant store was granted.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 8, 2020).

Source of image: www.lexisnexis.com

Propriety of Requests for Admissions Reviewed

In the case of Schryver v. Twp of Smithfield, No. 2933-CV-2018 (C.P. Monroe Co. May 21, 2020 Higgins, J.), the court addressed a Defendant’s objections to Requests for Admissions served by a Plaintiff in a negligence action in which the Plaintiff alleged that the Defendant caused damages to the Plaintiffs by allowing storm water to flow onto the Plaintiffs’ property. 

The Defendant initially objected to the Plaintiff’s Requests for Admissions as being too many in number given that the Plaintiff had served 200 such requests. The court rejected this argument as there is no legal authority to support this argument.

However, the court did strike some duplicative Requests for Admissions. 

The court also accepted the defense argument that some of the other Requests for Admissions were objectionable in that they called for legal conclusions in violation of Pennsylvania law, including the case of Brindley v. Woodland Village Restaurant, Inc., 652 A.2d 865, 871 (Pa. Super. 1995). 

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (July 7, 2020).

Summary Judgment Granted in Monroe County Slip and Fall Case

In his recent decision in the case of Zangenberg v. Weis Markets, Inc., PICS Case No. 15-1185 (C.P. Monroe Co. April 1, 2015 Higgins, J.), Judge Stephen M. Higgins of the Monroe County Court of Common Pleas granted Defendant Weis’ Motion for Summary Judgment in a slip and fall case.

According to a summary of the Opinion, the Plaintiff slipped and fell in the store due to alleged slippery conditions and/or a wax build up on the floor that amounted to an allegedly dangerous condition.

The Defendant store filed a Motion for Summary Judgment claiming that the Plaintiff failed to produce any evidence that the store had actual or constructive notice of the alleged condition.

The Court found that the Plaintiff did not produce any evidence that the application of wax on the floor created a dangerous condition that was so obvious as to amount of evidence which an inference of negligence would arise.

Rather, the Court noted that the Plaintiff only produced the testimony of her daughter who stated that there was a black skid mark on the floor.  However, the record also established that Plaintiff’s daughter was not present at the time the Plaintiff fell and could not identify the mark as coming from the Plaintiff’s shoe.  Further, the daughter did not further examine the floor.

Moreover, there was evidence in the record that a Weis employee testified that she was present when the Plaintiff fell and, after assisting the Plaintiff up, the employee looked at the area and did not see anything on the floor.

The facts of the case also confirm that the Plaintiff admitted that she did not remember looking at the ground prior to her fall. The Plaintiff had no evidence of any debris on the floor. Rather, the Plaintiff stated the floor was very slippery but that she did notice any water, oil, grease, or foreign substance on the floor immediately after her fall. Moreover, the Plaintiff did not notice anything on her hands, clothing, or her shoes which could have led her to conclusion of what caused her to fall.

Finding no actual or constructive notice established by the Plaintiff, the court granted the Defendant’s Motion for Summary Judgment in this slip and fall case.

If you wish to review this Opinion, you may contact the Instant Case Service at the Pennsylvania Law Weekly at 1-800-276-7427, provide the above PICS Case No., and pay and pay a small fee.

Source: "Digest of Recent Opinions," Pennsylvania Law Weekly (August 4, 2015).

Summary Judgment Granted in Monroe County Slip and Fall Case (Wax Buildup on Supermarket Floor)

Summary Judgment was granted in a recent Monroe County decision by Judge Stephen M. Higgins in the premises liability case of Zangenberg v. Weis Markets, No. 10500 CV 2012 (C.P. Monroe Co. April 1, 2015 Higgins, J.).

The Plaintiff alleged personal injuries as a result of a slip and fall on the defendant's premises.  The Defendant filed a motion for summary judgment asserting that it had no actual or constructive notice of the alleged dangerous condition.

The Plaintiff asserted that she had met her burden of proof by pointing to issues with the application of wax to the floor of the store and/or with allegations of wax buildup rendering the floor slippery.

Judge Stephen Higgins
Monroe County

Judge Higgins disagreed, noting that that the Plaintiff had not produced evidence to show that an improper application of wax to the floor that created a dangerous condition so obvious as to amount to evidence from which an inference of negligence would arise. 

As an example of a different type of case where summary judgment should be denied, the court pointed to a situation of a wax buildup on a floor such that there was evidence of a skid mark by the heel of a shoe through the wax that raised sides up as if the shoe was sliding through mud.

Here, the court noted that the evidence only involved a black skid mark but there was no other concrete evidence to establish that that skid mark was caused by the Plaintiff's shoe at the time she fell.  After the Plaintiff's fall, neither the Plaintiff nor any store employee saw any evidence on the floor as to what caused the Plaintiff to fall.  The Plaintiff simply testified that it was slippery in the area where she fell.

However, the court saw no evidence that would have raised an inference that the store knew or should have known that the floor was slippery in the time leading up to the Plaintiff's incident.  As such, the defense motion for summary judgment was granted.

Anyone desiring a copy of this decision may click this LINK.

I send thanks to the prevailing defense attorney Meg Kelly, Esquire, of the Moosic, PA office of the Marshall, Dennehey, Warner, Coleman & Goggin law firm.

Northeastern Pennsylvania Jurists Dominate 2014 List of 25 Most Requested Opinions

In follow-up to last week's blog post touting Northeastern Pennsylvania attorneys leading statewide attorney associations (Matt Keris Esq. leading the PDI, Malcolm MacGregor leading the PAAJ, and Francis X. O'Connor leading the PBA), this blog post highlights the fact  that Opinions by several Judges from across Northeastern Pennsylvania dominated the Top 25 Most Requested Opinions from the Pennsylvania Instant Case Service (PICS) offered by the Pennsylvania Law Weekly.

Each year, the PICS service summarizes hundreds and hundreds of decisions.  The service recently publicized the list of the 25 most requested Opinions between August 1, 2013 and July 31, 2014.

Judge Carmen D. Minora
Lackawanna County

Lackawanna County Judge Carmen D. Minora led the way locally with 3 of the Top 25 most requested opinions in 2014.  Monroe County Judge David J. Williamson had 2 decisions on the list.

In terms of the Opinions by Northeastern Pennsylvania jurists in the 2014 Top 25, coming in at No. 2 on the list was a limited tort decision in which summary judgment was granted in by Judge David J. Williamson of Monroe County in the case of Bachman v. Lassell, No. 13 - CV - 0989 (C.P. Monroe Co. April 15, 2014 Williamson, J.).  The Tort Talk blog post on this decision can be viewed HERE.

At No. 3 on the list was  Lackawanna County Judge Carmen D. Minora's decision in the case of Davis v. Fidelity National Insurance, No. 2013 - CV - 2489 (C.P. Lacka. Co. Aug. 15, 2013 Minora, J.), in which the court found that the defendant carrier violated Pennsylvania's bad faith statute along with other statutes pertaining to the prompt resolution of insurance claims.  Click this LINK to view the Tort Talk blog post on this decision--the blog post has a link to the actual Opinion as well.

Judge Terrene R. Nealon
Lackawanna County

Judge Terrence R. Nealon of Lackawanna County had the 8th most requested Opinion from PICS in 2014 with his decision in Venosh v. Henzes, No. 2013 - CV - 2223 (C.P. Lacka. Co. July 17, 2013 Nealon, J.).  In this medical malpractice action, Judge Nealon concluded that two event reports generated by the hospital involved as a result of two surgeries performed at the hospital were not protected from discovery under state and federal laws governing peer reviews and patient safety reporting.

At No. 12 on the Top 25 list was Judge Minora's Opinion in the case of Menard v. Pennymac Loan Services, No. 2013 - CV - 3062 (C.P. Lacka. Co. Oct. 13, 2013 Minora, J.).  With this Opinion, Judge Minora granted summary judgment to a defendant in a quiet title action after finding that the defendants were entitled to enforce the note and mortgage pertaining to the property despite a lost assignment.

Judge Minora's third entry on the Top 25 of 2014 list came in at No. 18 in the form of his decision in the case of Hudak-Bisset v. County of Lackawanna, No. 2014 - CV - 0509 (C.P. Lacka. Co. March 19, 2014 Minora, J.).  In this case, Judge Minora disagreed with a previous line of cases and allowed a Plaintiff to amend a Complaint to add wrongful death and survival action claims against a common carrier defendant where the Plaintiff allegedly committed suicide due to pain and depression suffered as a result of the subject accident.  To review the Tort Talk blog post on this one and secure a Link to the decision online, click HERE.

Judge Arthur L. Zulick
Monroe County

With the 19th most requested opinion in 2014, Judge Arthur L. Zulick of Monroe County addressed the scope of the protections provided by the Peer Review Protection Act in the case of Besecker v. Paul, No. 2013 - CV - 2166 (C.P. Monroe June 7, 2013 Zulick, J.).  In this case, a defendant medical center was found not to have waived all of the protections provided by the act relative to the defendant's conducting a meeting with the plaintiff following his problematic surgery and briefly discussing the results of a peer review.



Judge David J. Williamson
Monroe County

Monroe County Judge David J. Williamson's second entry in the Top 25 was at No. 21 with his decision in the case of Martinez v. Uckele, No. 2014 - CV - 0134 (C.P. Monroe Co. Dec. 9, 2013 Williamson, J.).  In Martinez, Judge Williamson denied a plaintiff's motion for summary judgment on
the issue of liability in a wrongful death proceeding arising out of a case where the defendant had been convicted of involuntary manslaughter.



Judge Stephen G. Baratta
Northampton County

The No. 23 most requested Opinion from last year was issued by Northampton County Judge Stephen G. Baratta in the case of Siegfried v. PennDOT, No. 2014 - CV - 1056 (C.P. Northampton Co. June 24, 2014 Baratta, J.).  In this case, the defendants motions for summary judgment were granted in a personal injury case alleging negligent maintenance of a stretch of road upon which the Plaintiff's decedent was killed.


Rounding out the list of most requested Opinions at No. 25 was a decision by Monroe County Judge Daniel M. Higgins in the case of Rivera v. Jemmott, No. 14 - CV - 0884 (C.P. Monroe Co. May 5, 2014 Higgins, J.).  In that case, Judge Higgins struck allegations from a defendant's Answer and New Matter due to the defendant's failure to assert facts in support of defenses asserted in the New Matter.


Source:  "Most Requested Opinions - 2014" from The Pennsylvania Law Weekly.

Source of Top 25 image:  www.tokeyclub.com