Judge Van Jura of Luzerne County Addresses No Duty Rule in Baseball Injury Case

In his recent decision in the case of DeAngelo v. Little League International, No. 6296 of 2008 (C.P. Luz. Dec. 16, 2011 Van Jura, J.), Judge Joseph Van Jura of the Luzerne County Court of Common Pleas addressed the “no duty” rule in a case involving an assistant baseball coach being struck in the face by an overthrown baseball during a post-game practice.

According to the opinion, a little league baseball game was stopped, by virtue of the “10 run rule” (or “mercy rule”), which dictates that, at the end of any inning after the 4th inning, if one team has a lead of 10 runs or more, the manager of the losing team must concede victory to the opponent and the game is then ended.

After the game was completed, the teams apparently agreed to continue playing for additional practice purposes. During the post-game practicing, the Plaintiff was injured when he was standing near first base and a short stop over threw the first basement and struck the Plaintiff on the right side of his head, causing serious injuries, including right eye blindness.

After the case proceeded to discovery, the Defendant, Little League Baseball Incorporated and Hazle Township Little League filed a Motion for Summary Judgment under the “no duty” rule. According to the opinion, the Defendants asserted that the “no duty” rule applied under the circumstances.

Judge Van Jura conducted a detailed analysis of the “no duty” rule which serves to “eliminate any duty of care to warn, protect, or ensure against risks which are ‘common, frequent, expected’ and ‘inherent’ in an activity voluntarily undertaken by a prospective Plaintiff.” [citations omitted]. The court noted that, if it is determined that the no-duty rule is applicable to a negligence claim, the Plaintiff is unable to proceed.

Judge Van Jura stated that it while it appeared that the no-duty rule would apply if this occurrence took place during the actual game, the issue before the court was “whether the no-duty rule would be properly applicable to the two independently simultaneously occurring “practices” on the same field, by the two different teams.”

Judge Van Jura stated that Pennsylvania law has made it clear that the injury need not occur during the actual conduct of a game for recovery to be barred by the “no duty rule.”

After reviewing the law in greater detail, including the number of decisions arising out of baseball games, professional and otherwise, the court concluded that the “no duty” rule barred the Plaintiff’s recovery under the facts presented. Accordingly, the court granted the Defendants’ Motion for Summary Judgment and dismissed the Plaintiff’s Complaint.

Anyone desiring a copy of this interesting opinion by Judge Van Jura in the DeAngelo case may contact me at dancummins@comcast.net.

The Citizen's Voice Wins Re-Trial of Defamation Case Previously Presided Over by Ciavarella

On December 8, 2011, Judge Joseph Van Jura of the Luzerne County Court of Common Pleas issued a detailed 39 paged Opinion outlining his decision in favor of the Citizen's Voice in re-trial of a local businessman's defamation lawsuit.

The case of Joseph v. The Scranton Times, et al., No. 3816 - C of 2002 (C.P. Luz. Co. Dec. 8, 2011 Van Jura, J.) was the same matter that the newspaper previously alleged was fixed during the first trial by now-jailed county judge Mark A. Ciavarella.  The first trial had resulted in a $3.5 million dollar verdict in favor of the Plaintiff before being overturned on appeal.


Anyone desiring a copy of Judge Van Jura's Opinion, which contains a detailed analysis of the current status of defamation law and the available damages under such a claim in Pennsylvania, may contact me at dancummins@comcast.net.

Judge Van Jura of Luzerne County Bucks the Trend on Facebook Discovery in a Facts-Specific Case

Judge Joseph Van Jura recently bucked the trend of trial courts allowing discovery of a Plaintiff's Facebook page by denying a defendant's motion to compel in the facts-specific case of Kalinowski v. Kirschenheiter and National Indemn. Co., No. 6779 of 2010 (C.P. Luz. Co.   2011 Van Jura, J.).

The Kalinowski case arises out of a motor vehicle accident.  During the Plaintiff's deposition, the defense learned that the Plaintiff had Facebook and MySpace pages both on a personal basis and separately with respect to a bar he owned and operated.  At the deposition, the Plaintiff refused to disclose his login information or otherwise agree to allow the defense to view the non-public portions of his web pages.

Following the deposition, the defense made another request for access to the Plaintiff's Facebook and MySpace pages and, when that information was not forthcoming, filed a motion to compel along with a motion for an order directing the Plaintiff to preserve the contents of the web pages.

The Plaintiff opposed the motion to compel arguing that that the defense was seeking additional information on tangential issues and as part of an effort to embarrass the Plaintiff.  The Plaintiff also argued that compelling him to grant access to his web pages would compromise his privacy interests.  The Plaintiff also noted that the request for access to his business-related web pages was irrelevant given that the Plaintiff was not pursuing any wage loss claims.  Finally, the Plaintiff additionally asserted that the defense had already discovered information from the publicly available portions of the Facebook and MySpace pages.

In his Order without Opinion, Judge Van Jura denied the defense motion to compel "without prejudice," apparently leaving the door open for the issue to be revisited.  The court also granted the defense motion to preserve and ordered the Plaintiff not to delete any of the content on the subject websites.

Anyone desiring a copy of the Court's Order, the carrier Defendant's motion to compel, the carrier Defendant's motion to preserve, and the Plaintiff's Brief in opposition filed in this matter may contact me at dancummins@comcast.net.

I send thanks to Attorney Ann Farias of the O'Donnell Law Offices in Kingston, PA for advising me this decision.

Judge Van Jura of Luzerne County Addresses Motion For Coordination in a Post-Koken Case

I recently reported on Judge Terrence R. Nealon’s Lackawanna County Court of Common Pleas Opinion in the case of Bingham v. Poswistilo Ritz, and Erie Ins., No. 10-CIV-6020 (Lacka. Co., April 8, 2011, Nealon, J), in which Judge Nealon ruled that third party liability claims and UIM claims may be consolidated under one caption in the post-Koken world but in which Judge Nealon also ruled that such claims should be severed in the case before him under venue issues,

At the end of his Opinion in Binghman, Judge Nealon noted that the Court took no position as to whether a plaintiff may attempt to thereafter coordinate a UIM claim in Lackawanna County with the severed tort claims in Lehigh County under the different standards applicable under Pa. R.C.P. 213.1(a)(c), pertaining to “coordination of actions in different counties.”

On the heels of Judge Nealon's opinion, comes a Luzerne County decision by Judge Joseph Van Jura in the case of Orsulak v. Penn National Mutual Cas. Ins. Co. and Penn National Ins., No. 12255-Civil-2010 (Luz. Co., April 12, 2011, Van Jura, J.), addressing the open issue of coordination that was raised by Judge Nealon in the Bingham decision.

Judge Van Jura tackled this very issue in the Orsulak case and set forth the various factors to be considered on a Motion for Coordination/Petition to Transfer Venue that filed by the Defendant carrier pursuant to Pa. R.C.P. 213.1.

Under Pa. R.C.P. 213.1(a), it is provided that “[i]n actions pending in different counties which involve a common question of law or fact or which arise from the same transactions or occurrence, any party, with notice to all other parties, may file a motion requesting the court in which a complaint was first filed to order coordination of the actions. Any party may file an answer to the motion and the court may hold a hearing.”

Pennsylvania Rule of Civil Procedure 213.1(c) sets forth at least six (6) factors to be used by the Court in determining whether to order coordination and to determine which location is appropriate for the coordinated proceedings. Judge Van Jura noted that the “basis for the rule is the avoidance of multiple trials and proceedings in these separate actions and the resultant economy to both the parties and the judicial system.” Orsulak at p. 4.

In addition to reviewing the factors noted under Rule 213.1, Judge Van Jura also noted guidance from the Explanatory Comment to the rule “which explains that the ultimate determination that the Court must make is whether coordination is ‘a fair and efficient method of adjudicating the controversy.’” Id.

In Orsulak, the Plaintiffs’ claims arose from a motor vehicle accident that occurred in Monroe County. The Plaintiffs filed a Writ of Summons in Monroe County against the tortfeasors only.

The case in Monroe County sat dormant with a Writ only filed while the Plaintiffs attempted to resolve their claims with a worker’s compensation carrier and with Penn National as the UIM carrier.

When the claim with the UIM carrier and the worker’s compensation carrier could not be resolved, the Plaintiffs filed a separate Complaint against Penn National as the UIM carrier alleging causes of action for breach of contract (UIM) and bad faith in Luzerne County.

Thereafter, the UIM carrier filed its Motion for Coordination/Petition to Transfer. After applying the six factors under Rule 213.1(c), along with a guidance from the Explanatory Comment, to the case before him, Judge Van Jura ruled that the Motion for Coordination should be granted and that venue in the Luzerne County case should be transferred to Monroe County.

Judge Van Jura noted that Luzerne County had no, or virtually no, connection with, the issues involved, the facts or site of the accident in question, the potential witnesses, or other sources of proof.

Judge Van Jura also noted that the Plaintiffs reside in Northampton County and that their residence was less than 33 driving miles from the Monroe County Courthouse, but over 61 driving miles to the Luzerne County Courthouse.

The court was also influenced by the fact that both the Luzerne County case and the Monroe County case were in their seminal stages and that coordination would, therefore, not result in any unreasonable delay, expense, or prejudice to any party in the action. Judge Van Jura additionally pointed to the benefits of judicial economy that would result from a coordination of the actions together in Monroe County.


Anyone desiring a copy of this Opinion in the case of Orsulak v. Penn National by Judge Van Jura may contact me at dancummins@comcast.net.

Former Ciavarella Case Being Litigated Back in Luzerne County

A case entitled Joseph v. The Scranton Times, No. 3816-Civil-2002 (Luz. Co. Dec. 13, 2010, Van Jura, J.), formerly handled by Mark A. Ciavarella when he was a Luzerne County Judge, is back at the trial court level and is being litigated now in front of Judge Joseph Van Jura.

The Citizens’ Voice matter stems from a verdict Ciavarella entered in favor of Joseph following a non-jury trial in 2006. The case centered on a series of articles the newspaper ran in 2001 regarding searches that were conducted at the home and business of Joseph and William “Billy” D’Elia. Joseph was never charged with any crime in connection with the searches. He filed suit against the newspaper, alleging the articles damaged his reputation.

You may recall that the Pennsylvania Supreme Court previously overturned Ciavarella's $3.5 million defamation verdict against The Citizens’ Voice newspaper and ordered a new trial, ruling there was a “pervasive appearance of impropriety” in how the case was assigned to and handled by former Luzerne County judge Mark Ciavarella.

On remand for a new trial, the case was assigned to Judge Van Jura in Luzerne County. With his December 13, 2010 Opinion and Order, Judge Van Jura addressed an Omnibus Motion for Summary Judgment filed on behalf of all of the Defendants.

After applying the facts to the law on a variety of defamation-type issues, the court granted the Defendants' Motion in part and denied it in part.

Anyone desiring a copy of this Opinion by Judge Van Jura, which contains thorough recitations of the law applicable to defamation actions, may contact me at dancummins@comcast.net.

Judge Van Jura of Luzerne County Weighs in on Permissible Scope of Supplemental Expert Discovery

On October 1, 2010, Judge Joseph Van Jura of the Luzerne County Court of Common Pleas issued an Opinion and Order in the case of Glushefski v. Sadowski and Erie Insurance Exchange, No. 1189-Civil-2009 (Luz. Co. October 1, 2010, Van Jura, J.), in which he ruled upon a Plaintiff’s Motion to Dismiss the objections of the Defendant, Erie Insurance Exchange to various written discovery requests of the Plaintiff seeking to compel the production of bias information on the defense independent medical examination doctor.

By way of background, the Plaintiff sent discovery to Defendant Erie in this Post-Koken case including Interrogatories seeking the number of independent medical examinations performed by the defense IME doctor on behalf of or at the request of Erie Insurance over a four (4) year period and the number of depositions completed by the defense IME doctor on behalf of or at the request of Erie Insurance over a four (4) year period.

The Plaintiff also forwarded a Request for Production of Documents requesting a copy of the transcripts of the depositions of the defense IME doctor in which the doctor testified on behalf of or at the request of Erie Insurance.

Erie objected to these written discovery requests as being beyond the scope of discovery allowed by the Pennsylvania Rules of Civil Procedure. Erie also objected that the requested information would cause unreasonable annoyance, burdensome, and expense to the party Defendant. With regards to the request for transcripts of the depositions of the IME doctor, Erie also asserted that the production of that information would be in violation of the HIPAA regulations.

In his Opinion, Judge Van Jura noted that the essential objection of Defendant Erie Insurance was that the discovery requests exceeded the scope of supplemental expert discovery allowed by the case of Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006), in which case the Pennsylvania Supreme Court applied and interpreted Pa. R.C.P. 4003.5(a)(2).

The judge noted that, in the Cooper case, the Pennsylvania Supreme Court held that the threshold showing to establish “cause” with respect to supplemental expert discovery, relating to potential bias of a non-party expert witness retained for trial preparations, is a showing of “reasonable grounds” to believe that the witness may have entered the “professional witness” category. In Cooper, this initial threshold shown was met by showing that the IME doctor had performed more than 200 IMEs over a few year period.

According to the Cooper decision, once that threshold shown is met, a number of supplemental expert discovery inquiries could be made to the expert witness to cover information, including the amount of income earned by the doctor each year, for up to a three year period.

In his decision in Glushefski, Judge Van Jura rejected Erie’s position that the nature and scope of the Plaintiff’s permissible supplemental expert discovery is limited to the permissible areas of inquiry as set forth in Cooper in the context of this case where the discovery requests were directed to the opposing party as opposed to the opposing party's expert.

The Judge also rejected Erie's contention that Cooper limits the scope of supplemental expert discovery propounded to both a non-party expert retained for trial (as in Cooper) as well as the scope of supplemental expert discovery propounded to a party to the action (as in this matter).

Judge Van Jura noted that supplemental expert Interrogatories directed to a party who hired the expert are not per se governed by the holding in Cooper, but rather, are governed by the permitted general scope of discovery to a party under Pa. R.C.P. 4003.1, as limited by Pa. R.C.P. 4003.2 to 4003.5 and Pa. R.C.P. 4011.

Nevertheless, Judge Van Jura noted that “the balanced and incremental approach to expert discovery, approved by the Court in Cooper, must now, by implication, inform the methodology of supplemental expert discovery directed to a party, as in this case.”

Applying that rationale to the issues before him, and after reviewing other related Rules of Civil Procedure and appellate decisions, Judge Van Jura ruled that the holding in Cooper “can only be reasonably construed to formulate and apply to a procedural model of an incremental and progressively measured approach to supplemental expert discovery so as to provide for relevant and reasonable discovery consistent with the avoidance of unreasonable burden or expense on the part of any party.”

The judge noted that, with the “expert driven” litigation of today, the trial court “must, in its sound discretion, monitor and, where necessary, moderate discovery, particularly in the areas of expert bias, which, while the issue can and should be explored, must not be permitted to expand to an overarching and disproportionately costly and time consuming component of the litigation process.”

In opposition to the Plaintiff’s Motion to Compel, Erie had argued that, in order to fully respond to the Plaintiff’s written discovery requests in this regard, Erie employees would have to manually pull and review tens and thousands of individual files at Erie’s four branch offices to determine if this particular IME doctor has performed an IME and/or given deposition testimony for an Erie insured in the past.

Judge Van Jura ruled that this was too burdensome and that, at this stage of the litigation, Erie would only be required to provide to the Plaintiff the number of IMEs and depositions completed by the IME doctor at the request of Erie over a three year period. However, Erie would not be required to undertake the overly burdensome task of setting forth the case caption and docket number for each case, or the identity of Plaintiff’s counsel in each matter as requested. Judge Van Jura also held that Erie need not produce a copy of the transcripts of the depositions identified.

The judge’s rationale was that, allowing for this type of limited discovery over a three year look back period “would track the philosophy of incremental and leased invasive discovery as approved by the Supreme Court in Cooper.” The judge also noted that this decision would honor the Plaintiffs’ entitlement to inquire into the issue of potential favoritism on the part of the IME doctor and the issue of whether or not the IME doctor had entered into the “professional witness category,” while, at the same time, protecting Erie from unduly intrusive and burdensome discovery obligations in violation of the Pennsylvania Rules of Civil Procedure.

Anyone desiring a copy of Judge Van Jura’s decision in the Luzerne County case of Glushefski v. Sadowski and Erie Insurance Exchange may contact me at dancummins@comcast.net.