Here is a LINK to an article from today's online edition of the WNEP News website reporting on the Luzerne County Court of Common Pleas utilizing the Mohegan Sun Arena and other facilities to start back up jury trials. (Check out the video of the news story in the Link to hear more details on the process from President Judge Michael T. Vough of the Luzerne County Court of Common Pleas).
The alternative venues are being utilized to select jurors with the trials thereafter taking place back in the courtroom with social distancing measures in place. Some high profile trials will take place completely within the larger alternative venue.
According to the article, jury trials have started back up in Luzerne County under this process and, so far, there has been a good response to the juror summonses sent out to the public.
I send thanks to Attorney Stephen T. Kopko of Cummins Law for bringing this article to my attention.
Below is a copy of my
latest article published in my column in the Pennsylvania Law Weekly
imploring appellate court judges to tackle Post-Koken issues whenever they can
and, when they do so, to publish such Opinions so that much needed appellate
guidance in this area of the law can be developed:
A Plea to the Appellate Courts From
a Post-Koken Litigator
Daniel E. Cummins, The Legal
Intelligencer
Dear Pennsylvania appellate court judges:
This respectful yet cogent plea for appellate guidance in post-Koken
civil litigation matters is prompted by the Pennsylvania Supreme Court's
surprising and disappointing recent denial of the petition to appeal in the
notable case of Stepanovich v. McGraw, PICS Case No. 13-2987 (Pa.Super.
Oct. 15, 2013).
As noted in my recent Pennsylvania Law Weekly article, "Superior Court Leaves
Big Post-Koken Question Unanswered," from Nov. 19, 2013, the Pennsylvania
Superior Court tackled, but did not fully resolve, the all-important issue of
how trials involving third-party defendant drivers and co-defendant underinsured
motorist insurance companies should be handled. With the appeal of that case to
the Supreme Court, the state's highest court was poised to address one of the
most important issues facing the courts and civil litigators in recent times,
but it chose not to.
The denial of the petition for appeal in Stepanovich did nothing to lessen
the void of appellate guidance on the many novel and troublesome issues in the
brave new post-Koken world of automobile accident litigation.
A Missed Opportunity
If it accepted the Stepanovich appeal, the Supreme Court could have finally
determined a number of important post-Koken trial issues at a time when
a tsunami of post-Koken trials are bearing down upon trial courts all
across Pennsylvania. Such issues include whether, in the first instance, the
third-party negligence claim against the alleged tortfeasor should be tried in
the same courtroom and at the same time as the breach of contract case against
the plaintiff's own insurance company for UIM benefits. If so, appellate
guidance could have been garnered on the consequent issue of how to address the
general preclusion against the mentioning of insurance issues in third-party
negligence trials in a case where the co-defendant is an insurance company.
Stepanovich also offered our highest court the opportunity to provide
practical advice to trial court judges on how to conduct a post-Koken
trial where there are typically two defense attorneys, one for the third-party
tortfeasor on the negligence claim and one for the UIM carrier defendant on the
breach of contract claim, double-teaming against a lone plaintiffs counsel.
The struggle with that issue is evident in the Stepanovich case, where the
trial court judge initially allowed the trial to proceed with the
two-against-one scenario without advising the jury why there were two defense
attorneys involved, but then later reversed himself during the post-trial
proceedings following the defense verdict by granting a new trial under the
rationale that the double-teaming of the plaintiff through two openings, two
sets of questioning of witnesses and two closing arguments by the defense was
not fair. Moreover, the Superior Court reversed on this issue but did not
include in its decision concrete practical guidance on how a post-Koken
trial should be handled.
Thus, the hope was that the Supreme Court would step in on the matter and
finally give clarity on the important questions presented. Unfortunately and
inexplicably, the Supreme Court punted, leaving this issue for another day (or
year).
To the extent the Supreme Court punted under the belief that the Stepanovich
issues are not troublesome and recurring ones for trial court judges or civil
litigators, or were not important enough to review, such is not the case.
Moreover, appellate guidance is needed on a number of other novel
post-Koken issues as well.
Appellate Guidance Needed
Needless to say, but apparently still necessary to emphasize, appellate
guidance would be welcomed on any post-Koken issue that should make its
way up the appellate ladder for review.
According to the "Post-Koken Scorecard" on my Tort Talk blog, which
may not be exhaustive but is certainly comprehensive, 19 different county courts
have ruled that post-Koken cases should be allowed to proceed through
the pleadings and discovery phases in a consolidated fashion, while at least 20
other county courts have ruled in favor of the severance of the claims at the
pleadings stages.
Notably, in some counties, such as Philadelphia, Allegheny and
Lackawanna, there is even a split of
authority on this issue among the trial
court judges of the same bench.
A review of the scorecard also confirms that many novel post-Koken
issues have also arisen in the context of the discovery phase of this new form
of civil litigation of automobile accident claims.
Questions abound as to the
extent to which an insurance company's claims file is discoverable, particularly
when bad-faith claims are included in the swirling vortex of issues being
litigated. Trial courts also continue to struggle with motions to quash the
requested depositions of UIM claims representatives and the scope of allowable
questions when such depositions are allowed.
Collateral estoppel has become a hot topic in post-Koken litigation
that, to date, has only been addressed by the state and federal trial courts.
The issue in that regard is whether a plaintiff's participation in a mediation
or binding arbitration on the third-party side of the case collaterally estops
the plaintiff from pursuing a UIM claim where the monetary result of the
third-party litigation came in at less than the tortfeasor's liability limits,
thereby indicating that the tortfeasor was not "underinsured" so as to support
the pursuit of a companion UIM claim.
Even after the Superior Court's decision in Stepanovich, the all-important
issue of whether or not post-Koken trials should be bifurcated into two
separate trials, one against the defendant tortfeasor with no mention of
"insurance," and a separate one against the UIM insurance company defendant,
remains unsettled.
While Stepanovich suggests, but does not hold, that the cases can be tried in
a consolidated fashion, at least two trial courts have ruled in favor of a
bifurcated trial: the Northampton County Court of Common Pleas in Purta v.
Blower, No. 2010-C-2515 (C.P. Lehigh Co. Sept. 20, 2011 Reibman, J.), and
the Allegheny County Court of Common Pleas in Vecchio v. Tunison, No.:
GD11-009690 (C.P. Allegheny Oct. 9, 2012 Folino, J.).
Other trial court judges, such as Judges Michael T. Vough and Lesa S. Gelb of
the Luzerne County Court of Common Pleas and Judge Cyrus P. Dolbin of the
Schuylkill County Court of Common Pleas, who have ruled in several cases that
the cases should proceed to trial in a consolidated fashion are, in the absence
of appellate guidance, still forced to craft appropriate ways to conduct voir
dire, to allow for the admission of evidence of insurance matters, to phrase
jury instructions at a layperson's level, and, overall, determine the extent to
which two defense attorneys should be permitted to gang up against a plaintiff's
case at a post-Koken trial.
Appellate guidance on all of these issues would be beneficial so as to allow
for the more orderly and efficient litigation of post-Koken cases. Such
guidance would negate the need for trial courts to repeatedly visit these issues
as long as appellate decisions are lacking. Moreover, the appellate resolution
of post-Koken issues in a final manner could serve to foster the
settlement of many cases in which litigants face unfavorable prospects of
success in light of such Superior Court or Supreme Court decisions.
Published, Precedential Decisions Welcomed
This is not to say that the appellate courts have not yet tackled troublesome
post-Koken issues. Both the Superior Court and the Supreme Court have
addressed important issues such as proper venue and the extent to which the
delay damages statute can be applied after a post-Koken trial.
And so, appellate court judges, if you have not yet taken up the opportunity
to tackle a post-Koken issue, this is the day and age to do so, for you
will be remembered and thanked for it later. For those of you who have already
taken on such issues, thank you.
Last but certainly not least, it is respectfully requested that when you are
faced with post-Koken issues on appeal, you publish your opinions and
not list them as nonprecedential, which would, of course, eradicate the power of
any guidance the decisions are designed to create.
Daniel E. Cumminsis a partner and civil litigator with
the Scranton, Pa., law firm of Foley Comerford & Cummins. His civil
litigation blog, Tort Talk, may be viewed at www.torttalk.com.
According to an October 21, 2013 Scranton Times Tribune article by Bob Kalinowski entitled "Luzerne County Judges Getting New Assignments," the Luzerne County Court of Common Pleas announced a planned reassignment of judges to be effective come January 1, 2014 for the civil, criminal, juvenile, and family courts.
To the extent, that you may not be able to access the article online (because you have to pay to view, or otherwise), I note that the article reports that Judge Lesa Gelb and Judge Richard Hughes will now focus on civil matters rather than civil and criminal matters as they have in the past. President Judge Thomas F. Burke, Jr. will also continue to handle civil matters.
Judge William H. Amesbury has been appointed as administrator of the juvenile court but will also continue to handle civil matters.
Judge Michael T. Vough will continue to handle criminal and civil matters.
No other judges were identified as being assigned to take part in civil matters after January 1, 2014.
