New Lackawanna County Local Rule Regarding Assignment of Medical Professional Liability Actions and Protracted Actions; Amendments to Local Rules on Discovery Motions

The Lackawanna County Courthouse
Scranton, PA

The Lackawanna County Local Rules have been amended to allow for the assignment of Medical Professional Liability Actions and Protracted Cases to a particular judge on a rotating basis upon the filing of a Complaint.  The new Rule was drafted by Judge Terrence R. Nealon, reviewed by the LBA Civil Rules Committee, and adopted by an Order of Court signed by President Judge Thomas J. Munley.

Changes were also made to the Discovery Motions Court Local Rules and, as of January 1, 2016, Judge Carmen D. Minora will serve as the Discovery Motions Court Judge in place of the old practice of a Special Trial Master presiding over discovery motions.

The new/amended Local Rules shall be come effective 30 days after their publication in the Pennsylvania Bulletin.

The Rule can be reviewed at this LINK.

New Version of Lackawanna County Local Rules Effective January 5, 2015

A new version of the Lackawanna County Local Rules of Civil Procedure was adopted on November 18, 2014.  All previous versions of the rules were repealed.  

These changes will be effective on January 5, 2015, i.e., TODAY..

A copy of the Rules can be viewed online HERE.

This document has not adopted any new rules. 

 

Rather, it is a compilation of all the individual rules that have been adopted and/or amended since the last compilation was adopted back in 2004.

NOTE:  It should be recognized that Lackawanna County Attorney Dana Zlotucha, law clerk to the Hon. Robert A. Mazzoni, took on the laboring oar (working with Deputy Court Administrator Jeff McLane) on this project to locate, gather, confirm, and edit all of the variations of the Local Rules, along with the recent amendments to the Rules, to come up with the finished product. 

The draft was also reviewed and approved by both the Civil Rules Committee of the Lackawanna County Bar Association before being reviewed and approved again by the Judges of the Lackawanna County Court of Common Pleas.
 

 

The Lackawanna County Courthouse

 

Judge Minora of Lackawanna County Holds That the Law is Not an Ass

  

In his recent August 27, 2013 decision, in the case of White v. The Medical Protective Company, et.al., No. 2010-CV-7058 (C.P. Lacka. Co. Aug. 27, 2013 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas disagreed with Charles Dickens' assessment above in an Opinion addressing a discovery dispute in a medical malpractice action.  

 

According to the Opinion, the discovery dispute arose from an underlying case involving alleged medical malpractice in the delivery and birth of a minor Plaintiff.   That 2003 lawsuit went on to a jury verdict on November 17, 2008 in favor of the Plaintiff in the amount of $20,500,000.00.   That verdict was modified to include delay damages, which increased the verdict to the amount of $27,352,195.21.   This verdict was later affirmed by the Pennsylvania Superior Court.  

 

According to the Opinion, the size of the verdict far surpassed the insurance coverages of the Defendants.  Accordingly, the Defendants assigned their potential causes of action against their insurers and their counsel to the Plaintiff which gave rise to the instant lawsuit before Judge Minora.  

 

Judge Carmen D. Minora
Lackawanna County

Before the Court on this Opinion were disputed Orders issued by the Lackawanna County Special Trial Master.   The specific issue before Judge Minora was the Plaintiff’s Motion to Strike on Procedural Grounds the Defendant’s appeal of the decisions of the Special Trial Master on certain discovery issues.  The particular issue before Judge Minora was whether the Defendant’s appeal was properly filed or was procedurally fatally deficient.

 

The Plaintiff’s argument was that, in order to properly appeal an Order of the Special Trial Master in Lackawanna County, the appellant must present an appeal motion to the designated motions court judge under Lackawanna County Local Rule of Civil Procedure 206.4(c) together with proof of payment of the appropriate fee.  

 

After reviewing Lackawanna County Local Rule 206.4(c) along with Lackawanna County Local Rule 4000.1(b), Judge Minora agreed that the Plaintiff correctly stated the prescribed procedure.  

 

Lackawanna County Local Rule 4000.1(b) provides that “An Order of the Special Trial Master may be appealed de novo by presentation of an appeal motion to the designated Motion Court Judge in accordance with Lacka. Co. R.C.P. 206.4(c) together with proof of payment to the Clerk of Judicial Records of an appeal cost in an amount to be set by the Court from time to time.  The appeal motion shall be filed within ten (10) days of the Order of the Special Trial Master and shall be considered by the Court pursuant to Lacka. Co. R.C.P. 4000.  

 

Judge Minora also stated that, under Lackawanna County Local Rule 206.4(c) as incorporated by reference in Lackawanna County Rule 4000.0(b), one seeking to obtain a Rule to Show Cause in such an appeal must present a Petition to the Motions Court pursuant to Lackawanna County Local Rule 208.3(a) requires the moving party to serve all counsel with a copy of the Motion or Petition that will be presented advising them of a date certain when the presentation will take place and provide, at a minimum, three (3) business days of notice prior to that presentation.  

 

While the Court stated that the Plaintiff’s arguments and positions appeared to be correct, the Court disagreed with the conclusion proposed by the Plaintiff that the appeal was dead and could not be revived. 

 

In reaching this conclusion, Judge Minora noted that it was the Defendant’s contention that they have proceeded in good faith on the appeal but were relying upon an outdated version of the Lackawanna County Local Rules of Civil Procedure that was posted on the Lackawanna County official website.   Judge Minora reviewed the Rules on the website and found it to be an older version that read differently from the current version that was actually in effect, particularly with respect to Local Rule 4001.1.   

 

The Defendants also argued that, in addition to proceeding in good faith, they had, in any event, timely filed their motions on the appeal and paid the appropriate filing fees.  

 

Thus, as stated, the issue before Judge Minora of whether or not the procedural defect resulting from the Defendant’s reliance upon the old Rule was fatal to the appeals.   The Opinion of the court confirmed that it was uncontested by the Plaintiff that the Defendant’s appeals were timely and that all appropriate fees were paid.  

 

Judge Minora additionally stated that the only prejudice to the Plaintiff’s claims presented would be the need to proceed through the appeals process if the Court ruled in favor of the Defendant.  

 

After reviewing the applicable law, including Pa. R.C.P.  126, entitled "Liberal Construction in Application of Rules," the Court overruled the Plaintiff’s Motion to Strike the Appeals and asserted that the “Plaintiff ha[d] clearly elevated process over substance and overstated the consequences of Defendant’s predicament.”  

 

Under Pa. R.C.P. 126, which Judge Minora construed to also apply to to local rules, it is stated that the Rules of Civil Procedure “shall be liberally construed.”   The rule also states that the “Court at every stage of such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.”  

 

Judge Minora concluded his Opinion with a Dickensian reference by stating that “[c]ontrary to Charles Dickens, the law is not an ass.” [Emphasis in Opinion at p. 12].  

 

Judge Minora further stated that “the trial of a lawsuit is not a sporting event where the substantive legal issues are subordinated to the rule of the game.”  He additionally noted that “procedural rules are not ends in themselves, but means whereby justice as expressed in legal principles is administered; they are not to be exalted to the status of substantive objectives requiring rigid adherence.”  

 

Accordingly, Judge Minora ruled that “the Court should not be astute in enforcing technicalities to defect apparently meritorious claims.”   Ultimately, the Court denied the Plaintiff’s Motion to Strike the Appeal of the Defendants from the Orders of the Special Trial Master. 

 

Anyone wishing to review this interesting Opinion issued by Judge Minora in the case of White v. The Medical Protective, et.al. may click this LINK. 

 

 

ADDITIONAL NOTE:

The Civil Rules Committee of the Lackawanna County Bar Association is currently in the process of reviewing the various Lackawanna County Local Rules in a concerted and purposeful effort to come up with a correct and current version of the same.  

 

Once this process is completed, it is anticipated that the updated version of the Lackawanna County Local Rules will be made publicly available on either the Lackawanna County’s website and/or the Lackawanna Bar Association’s website.  

 

If possible, I will also establish a Link to the Lackawanna County Local Rules from Tort Talk as well.

 





District Magistrate Judge James Gibbons Wins Both Primaries for Lackawanna County Court of Common Pleas Judge

District Magisterial Judge James Gibbons, 55, prevailed in both the Democratic and Republican primary elections for the open Lackawanna County Court of Common Pleas Judge position.

The spot on the bench opened up when Judge Chester Harhut took senior status and then moved to part-time status upon reaching the mandatory retirement age.

District Magistrate
James Gibbons

Judge Gibbons is a University of Scranton graduate and a Seton Hall Law School graduate. 

Over the course of his career, he has worked in the U.S. Attorney's Office before going into practice.  More recently, he gained greater prominence as a local district magistrate judge and, in private practice, as a Mediator/Arbitrator for the resolution of a wide variety of civil litigation matters.  He also previously served on a statewide commission to study and offer recommendations on the Luzerne County juvenile justice system issues that existed a few years back.

District Magistrate Gibbons now moves ahead to the general election in November with no opposition for the position.

Another Recent Defense Verdict

Here is an excerpt of an October 23, 2012 Pennsylvania Law Weekly write-up by Ben Present on a recent defense verdict of mine secured earlier this month in a Lackawanna County Court of Common Pleas motor vehicle accident matter:



Lackawanna County Courthouse

Jury Sides With Defendant in Disputed Collision

Eisbacher v. Davidson Defense Verdict

*******

Date of Verdict: October 5.

Court and Case No.: Lackawanna County Court of Common Pleas NO. 10-CV-3348.

Judge: Judge Robert A. Mazzoni.

Type of Action: Personal injury.

Injuries: Cervical sprain, lumbar sprain, and a left knee injury.

********

Defense Counsel: Daniel E. Cummins, Foley, Comerford & Cummins, Scranton, Pa.

Plaintiffs Experts:  Dr. Hans P. Olsen IV, orthopedic surgery, Wilkes-Barre, Pa.; Fran Terry, vocationalist, Clarks Summit, Pa.

Defense Experts: Dr. Thomas A. Allardyce, orthopedic surgery, Wilkes-Barre, Pa.; Dr. Jasen Walker, vocationalist, Valley Forge, Pa.

Comment: A Lackawanna County jury has sided with a defendant after both [an independent witness] and the woman suing him alleged the [Defendant] ran a red light in their Halloween collision four years ago.

Defense attorney Daniel E. Cummins said the case turned on several inconsistencies between plaintiff Jessica Eisbacher's deposition testimony and her statements to the jury. ********

*******

According to pretrial pleadings, Eisbacher v. Davidson was a "classic 'he said vs. she said' scenario."

According to the court filings, Eisbacher crashed into Davidson in the middle of an intersection in Scranton.

But during the four-day trial, Cummins said, he caught [the Plaintiff] giving several inconsistent statements, which the attorney thought turned the case. First, in her deposition testimony, Eisbacher said she didn't look both ways before she entered the intersection. In a pretrial mediation memorandum filed by Davidson, the defendant argued that because Eisbacher stated she looked straight ahead, she violated state law requiring drivers to be aware of their surroundings.

But "come trial time, she said, 'I looked both ways and didn't see anything,'" Cummins said.

At her deposition, Eisbacher said she was going 20 miles per hour, which Davidson questioned in pretrial court filings given the damage to each vehicle.

Eisbacher's attorney, Michael J. Pisanchyn Jr., was not available for comment.

Davidson was the chief financial officer of a local Goodwill Industries company at the time of accident, according to Cummins, and was driving back from making a bank deposit for work.

********

Eisbacher's insurer, Geico Indemnity Co., was a silent defendant, meaning the insurance company would not appear or be mentioned at trial. However, if the jury had sided with the plaintiff, she could possibly collect the [$15,000] in [UIM] limits for which her policy allowed.

Davidson's insurer, State Farm, offered to settle for $10,000.

According to a joint pretrial order, the plaintiff's case rested on the theory that it was Davidson, in fact, who blew the red light. Eisbacher said she had an independent eyewitness to back it up.

According to Cummins, he polled the jury in open court immediately before they were dismissed.

The jury was unanimous that Davidson was negligent and was 11-1 on whether the plaintiff was negligent, Cummins said.

However, on comparative negligence, the jury was 10-2 that the plaintiff shouldered 60 percent of the blame while Davidson held 40 percent.

Cummins said he spoke with one member of the jury after the verdict who said the crux of their debate was over negligence.

The jury was out for four-and-a-half hours.

FBI Searches Files in Lackawanna County Court of Common Pleas

Here's a link to a November 15, 2011 article by Borys Krawczeniuk in the Citizen's Voice regarding the FBI searching the files in the Lackawanna County Court Administrator's Office.  According to the article, the search warrant was issued as part of an investigation into a program that provides lawyers for children in family court cases.

Here's the link to the article:  http://citizensvoice.com/news/fbi-searches-lackawanna-county-court-administrator-s-office-1.1232501#axzz1dpSKjuJ6

Judge Mazzoni and Judge Geroulo Retained in Lackawanna County

Voters in Lackawanna County voted to retain Judge Robert A. Mazzoni, 63, and Judge Vito P. Geroulo, 64, on the bench.

The mandatory retirement age for Common Pleas judges is 70. That means neither Judge Geroulo nor Judge Mazzoni will be able to serve out a 10-year term as a full-time judge.  They can take senior status and continue working part-time after the age of 70.


Photo: Lackawanna County Courthouse
Source of Photo:  lackawannacounty.org

Judge Terrence Nealon of Lackawanna County Addresses Propriety of Punitive Damages Claims in Med Mal Context

On March 31, 2011, Judge Terrence R. Nealon issued an Opinion in the medical malpractice case of Lasavage v. Smith, et.al., No. 10-CV-2183 (Lacka. Co. March 31, 2011 Nealon, J.), pertaining to Preliminary Objections filed by Defendant against allegations of “reckless,” “outrageous, wanton and grossly indifferent conduct” and “reckless indifference to the rights of Plaintiff’s decedent” as contained in the Complaint. Essentially, the Defendants filed Preliminary Objections against the claim for punitive damages in the Plaintiff’s Complaint.

In his ruling, Judge Nealon overruled the Preliminary Objections filed in this regard by one of the individual Defendants but sustained the objections filed by the Defendant, Scranton Heart Institute, P.C. to the allegations of reckless indifference and any vicarious liability claim for punitive damages asserted against that Defendant.
In so ruling, Judge Nealon noted that the recovery of punitive damages in medical malpractice litigation is governed by §505 of the Medical Care Availability and Reduction of Error (MCare Act), 40 Pa. C.S. §1303.505.

Judge Nealon emphasized that the medical malpractice statute provide that a healthcare provider maybe vicariously liable for the reckless conduct of its doctors/agents only if the principal (a) knows of the wrongful conduct and (b) nevertheless allows it to occur and/or continue.

Judge Nealon stated that “[b]y virtue of this heightened standard of proof for vicarious liability “a patient must now aver and establish that the healthcare principal was cognizant of the agent’s willful, wanton or recklessly indifferent treatment and allow that conduct to proceed unabated.” [citations omitted] [emphasis in original].

Anyone desiring a copy of this Opinion by Judge Nealon the Lasavage case may contact me at dancummins@comcast.net.

Med Mal Jury Verdict Out of Lackawanna County

Here's a link to an April 7, 2011 article in the Scranton Times Tribune regarding a sizeable jury verdict entered by a Lackawanna County jury in a medical malpractice case: 

http://thetimes-tribune.com/news/scranton-law-firm-wins-550-000-medical-malpractice-case-1.1129283#axzz1Is9XDAe4

Lackawanna County Judge Chester T. Harhut To Take Senior Status

Judge Chester T. Harhut has advised that he will be moving to senior status on the Lackawanna County Court of Common Pleas at the end of 2011. This will create a vacancy on the Lackawanna County bench beginning 2012.

Here is a link to the story in an article by Boris Krawczeniuk in today's Times-Tribune in Scranton. Note that this article was written just before the Judge announced his decision. As noted above, he has decided to go to senior status: http://thetimes-tribune.com/news/judge-harhut-considers-taking-senior-status-1.1095776#axzz1CFgDQUmI

Million Dollar Jury Verdict Entered in Lackawanna County Trial

Here's a link to a November 10, 2010 article in Scranton's Times-Tribune reporting on a million dollar jury verdict in a Lackawanna County Court of Common Pleas automobile accident personal injury case earlier this week:

http://thetimes-tribune.com/news/jury-awards-1-1-million-to-gouldsboro-woman-hurt-in-car-crash-1.1061920

Pennsylvania Superior Court Upholds Multi-Million Dollar Medical Malpractice Verdict out of Lackawanna County

The Pennsylvania Superior Court has upheld a $27.3 million verdict from a Lackawanna County medical malpractice case that involved a baby who developed a brain injury and a diagnosis of cerebral palsy as a result of complications during the birth.

In an unpublished decision, the Superior Court dismissed the issues raised on appeal by the defendants, doctor Richard Behlke of OB-GYN Consultants Ltd. and Community Medical Center. Behlke was found 60 percent liable for the plaintiff's injuries and the medical center was found 40 percent liable.

According to an October 19, 2010 article by Gina Passarella in the Pennsylvania Law Weekly, the Community Medical Center settled its portion of the award and only Dr. Behlke and his practice pursued the appeal. In the interim, Behlke has reportedly assigned his rights to the Whites who just recently initiated a bad faith claim against his insurer.

Drop in Local Medical Malpractice Filings

I recently reported on the drop in the number of medical malpractice case filings across the Commonwealth of Pennsylvania by 42 percent as determined by the Administrative Office of Pennsylvania Courts. A recent article by Erin L. Nissley in the May 17, 2010 edition of Scranton's The Times Tribune reported on the numbers locally.

According to that article, Lackawanna County's medical malpractice lawsuits have dropped 53 percent over the past eight years. More specifically, in 2009 there were 33 medical malpractice matters filed compared to 71 such cases in the year 2000.

The article also reports that only three medical malpractice cases went to trial last year in Lackawanna County, with only one of those cases resulting in a verdict for a plaintiff.

Between January of 2000 and July of 2003, 27 such cases went to trial with only 3 verdicts in favor of the plaintiff.

The article indicated that the neighboring counties of Luzerne and Wayne have seen an increase in such filings since the year 2000. However, most of the counties across the Commonwealth have seen drops in the number of filings similar to that seen in Lackawanna County.

Commentators have noted that the reduction in the number of medical malpractice lawsuits may be attributable to (1) the new requirement plaintiffs secure a Certificate of Merit from a medical professional to support the potential validity of the claim presented, and (2) the requirement that the cases can only be filed in the county where the malpractice took place.

Updates in the Medical Malpractice Arena

Lackawanna County Jury Verdict

According to an article by staff writer Joe McDonald in the April 21, 2010 Scranton Times, on Monday, April 19, 2010, a Lackawanna County jury returned a verdict in the amount of $1.2 million dollars in favor of a plaintiff in a medical malpractice case against the Tyler Memorial Hospital physicians Daniel Costner and Jeffrey Lubin. Plaintiffs alleged that the Defendants were negligent in the death of Michael Scarpa, a 55-year-old retired Long Island railroad worker.

Mr. Scarpa died two days after he was sent home from the hospital emergency room, where he had complained of chest pains and vomiting for three days. He was allegedly advised to take cough medicine, rest and see his family doctor in two days. A later autopsy revealed that the Plaintiff had an ulcerated esophagus. The cause of death was noted to be sepsis, or blood poisoning, caused by a perforated esophagus that allowed food to enter into his pleural cavity.

The jury found that the hospital was 40 percent responsible, Dr. Lubin was 30 percent responsible and Dr. Coster was ruled to have been 20 percent responsible. The jury also found that the Plaintiff's decedent was 10 percent responsible.

The Plaintiffs were represented by Attorney Matthew A. Cartwright and Robert W. Munley, III, of the Scranton law firm of Munley, Munley & Cartwright. The presiding judge was Judge Carmen Minora.

It was indicated in the article that delay damages may increase the verdict to closer to $1.9 million dollars.

To review the Scranton Times article and more details on the case, click here: http://thetimes-tribune.com/news/jury-awards-widow-1-2-million-in-scranton-malpractice-trial-1.738278.


Recent Pennsylvania Supreme Court Decision

Back on March 25, 2010, the Pennsylvania Supreme Court issued a decision, written by Justice Seamus P. McCaffery, in the case of Vicari v. Spiegel, 989 A.2d 1277 (Pa. 2010) in which it held that, pursuant to Section 512 of the Medical Care Availability and Reduction of Error Act, 40 Pa.C.S. 1303.512, an expert may be permitted to testify at trial in a medical malpractice case even though the testifying expert is board certified in a different field from the defendant doctor and even though the expert practices in a subspecialty different from the specialty of the defendant doctor.

The Court noted that the relatedness of one field of medicine to another for purposes of expert testimony must be assessed on a case-by-case basis with respect to the specific care at issue.

In this case, the Plaintiff's decedent died from tongue cancer. Among the defendants sued was a otolaryngologist, who managed the decedent's care, as well as a radiation oncologist. At issue was whether the Plaintiff could proceed to the jury on the testimony of an expert medical oncologist. The Supreme Court ruled that the Plaintiff's expert testimony was sufficient even though the Plaintiff's expert had a different board certification and was not of the same specialty as the defendant doctors.

A copy of this majority opinion can be reviewed by clicking this link: http://www.courts.state.pa.us/OpPosting/Supreme/out/J-94AB-2009mo.pdf.

Justice Castille's Concurring Opinion (joined by Justice Baer): http://www.courts.state.pa.us/OpPosting/Supreme/out/J-94AB-2009co1.pdf.

Justice Saylor's Concurring Opinion (joined by Justice Eakin): http://www.courts.state.pa.us/OpPosting/Supreme/out/J-94AB-2009co2.pdf.

Recent Decisions of Note out of Lackawanna County

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently issued two notable opinions.


Florimonte v. Scranton Laminated Label, Inc., No. 08-CV-1569 (Lacka. Co. March 15, 2010 Nealon, J.)


In the case of Florimonte v. Scranton Laminated Label, Inc., et al., Judge Nealon presided over a non-jury civil trial pertaining to claims of gender discrimination, retaliatory discharge, and sexual harassment/hostile working environment in violation of the federal Civil Rights Act and the Pennsylvania Human Relations Act.

The Plaintiff was an "at-will" employee of Scranton Label. The evidence revealed employees at the company, including the Plaintiff used profanity of a non-sexual nature at work when customers were not around. The evidence also showed that at least two male employees generated as much as 9 or 10 times more business on their industrial accounts compared to the smaller boutique business accounts that the Plaintiff chose to devote her efforts to.

Also noted in the Opinion were allegations by the Plaintiff wrote a letter to her employer containing complaints about co-workers and asserting that she believed that representatives of Scranton Label had installed surveillance or recording devices in her company vehicle and at her desk with the assistance of the FBI. The employees at Scranton Label alleged to be involved in this all denied the allegations as absurd. To be sure, the Defendant had a State Trooper, with the Plaintiff present, sweep the car for listening devices and none were found. An independent inspection of the vehicle secured by the Plaintiff also failed to unveil any listening devices in the car. The Plaintiff declined the employer's offer to have her desk and office check out as well.

Shortly thereafter, the employer issued a letter to the Plaintiff terminating her from employment "due to the bizarre behavior you have exhibited over the past week toward my employees and me" and "expressed hope [that] you seek the medical attention that you desparately need."

The Opinion noted the new employees who followed in the Plaintiff's position at Scranton Label were able to generate much more money in sales than the Plaintiff had. The Court also rejected the Plaintiffs' claims with respect to the listening devices, which was admittedly the basis of her claims of harassment, as incredible.

In his Opinion, Judge Nealon provided a thorough analysis of the current state of the law on the burden of proof on claims of gender discrimination, sexual harassment/hostile work environment, and retaliatory discharge.

After analyzing the law and reviewing all of the facts presented, Judge Nealon concluded his Opinion with the entry of a March 15, 2010 non-jury verdict in favor of Defendants, Scranton Laminated Label, Inc., et al.




Scranton Times, LP v. Entercom Wilkes Barre Scranton, LLC and John Gasper, No. 10-CV-2439 (Lacka. Co. April 10, 2010 Nealon, J.)


In Scranton Times LP v. Entercom Wilkes Barre Scranton, et al., Judge Nealon addressed the motion for a preliminary injunction filed by the Scranton Times seeking to enjoin a radio personality and his current employer from utilizing the ex-employee's professional name and any fictional characters, comedic material or artistic product that the radio personality developed and published during his former employment under the Scranton Times.

The radio personality involved is John Gasper, whose "stage name" was John Webster. For the past 25 years Gasper was part of the Daniels & Webster due on the Rock 107 morning show, a local radio fixture in Northeastern Pennsylvania. Recently, Mr. Gasper announced his resignation from his position at Rock 107 and his intention to accept employment with another radio station. In this matter, the former employer sought to enjoin Gasper from using the name "John Webster" and any of the the comedic material in his new position.

After providing an analysis of the standard of review for the issuance of a preliminary injunction as well as the law on the standard of review on preliminary injunctions, construction of employment contracts, and state and federal trademark claims, the Court granted in part and denied part the motion for the preliminary injunction.

More specifically, in his April 10, 2010 Order attached to the Opinion, Judge Nealon denied the motion seeking to enjoin Mr. Gasper from using the name "John Webster" in the future, but granted the motion to enjoin the use of the comedic materials and characters developed during the previous employment.




Anyone desiring a copy of these Opinions may contact me at dancummins@comcast.net.

Household Exclusion Upheld in Lackawanna County

Lackawanna County Court of Common Pleas Judge Carmen Minora recently issued a decision upholding the validity of a family vehicle/household exclusion in an automobile policy in the case of Steinetz v. Allstate Property & Casualty Ins. Co., PICS Case No. 09-2121 (Lacka. Co. Dec. 23, 2009, Minora, J.). A copy of this case can be secured for a small fee by calling the Pennsylvania Law Weekly's Instant Case Service at 1-800-276-7427 and giving the above PICS Case Number.

The household exclusion generally applies to the situation where an injured party resides in a household where there are multiple vehicles that are covered by different insurance companies. The exclusion basically states that, if the injured party is hurt while in one of the vehicles of the household, while the injured party can recover UIM benefits under the policy of that vehicle, the injured party is generally not entitled to also go after the coverage that may be available from the different carriers covering the other vehicles in the household.

In the Steinetz case, the plaintiff lived with his father as was injured while in his father's vehicle. As a resident relative under the father's policy, the plaintiff was entitled to, and did, recover benefits under the automobile insurance coverage for that vehicle.

At the time of the accident, the plaintiff also owned his own vehicle that had his own separate insurance coverage under a different insurance policy. The plaintiff turned to the carrier that sold him that separate policy in an effort to recover more UIM benefits. That carrier denied the claim under the family vehicle/household exclusion.

After the denial, the plaintiff then filed a lawsuit against that carrier for breach of contract and other claims. Faced with the plaintiff's motion for judgment on the pleadings and the defendant's motion for summary judgment, Judge Minora followed the recent line of appellate cases and upheld the exclusion and ruled in favor of the defense on each of the motions filed. Similar to the repeated rejection of the argument by the appellate courts, Judge Minora likewise rejected the plaintiff's argument that the exclusion was against public policy.

Source: Pennsylvania Law Weekly--Case Digests--January 25, 2010.

Election to the Executive Committee of the Lackawanna Bar Association

I am happy to announce that I was elected to the Executive Committee of the Lackawanna County Bar Association at last night's Annual Membership Meeting. I thank those members of the Bar who voted for me and, as a new member of the Board of Directors of the Association, I look forward to assisting this year's Lackawanna County Bar Association President, Gerard M. Karam, Esquire during his term in office.

Congratulations to Judge William J. Nealon - Celebrating 50 years on the Bench

Congratulations to Federal District Judge William J. Nealon who today celebrates an amazing 50 years as a Judge of the United States District Court for the Middle District of Pennsylvania. It was 50 years ago today that Judge Nealon was sworn in as a member of the Bench of that Court.


In other Northeastern Pennsylvania Judicial news, Judge Margie Bisignani-Moyle was sworn in yesterday as a member of the Lackawanna County Court of Common Pleas. She is expected to start her judicial career in the family division of the court.

Yesterday also saw Judge Tina Polachek-Gartley and Judge William Amesbury sworn in as members of the Luzerne County Court of Common Pleas.

Judicial Election Results Across Northeastern Pennsylvania

The Judicial Election results from across Northeastern Pennsylvania brought some surprises in some spots and met expectations in other areas.

Luzerne County

In Luzerne County, the voters elected not to retain Judge Peter Paul Olszewski, Jr. for a second 10 year term as he fell victim to the ongoing negative publicity surrounding the scandal involving former Judges Michael T. Conahan and Mark A. Ciavarella. A candidate for judicial retention is required to receive 50 percent yes votes; Judge Olsewski only secured 44.5 percent of the vote.

Meanwhile, the other Luzerne County Judge up for retention, Judge Thomas F. Burke, Jr., received 61.6 percent "yes" votes and was thereby retained to another ten year term.

In terms of new Judges being elected to the bench in Luzerne County, William Amesbury and Tina Polacheck-Gartley prevailed.

With the loss of Olszewski from the bench, there are three open seats--Olszewski's seat to be vacated in January, the seat vacated by former Judge Ciavarella, and the seat that is being held open while Judge Lokuta continues her fight in the Court of Judicial Discipline.

Hopefully, the Pennsylvania Legislature and the Governor will work swiftly to allow for an appointment to fill at least two of those seats so that the Luzerne County court system can continue to make forward steps to restoring confidence and moving its caseload ahead. I note that, currently, the trial backlog in that county is over a year.

Lackawanna County

In neighboring Lackawanna County, Judge Terrence R. Nealon and Judge Michael J. Barrasse, easily secured the necessary "yes" vote for each of them to be retained for another 10 year term.

In terms of the election to fill the open spot on the Lackawanna County Bench, Margie Bisignani-Moyle easily defeated her opponent.

The word is that Judge Bisignani-Moyle will begin her term in the family court. This is unfortunate as the civil division could use another judge to help ease the current trial backlog which, as in Luzerne County, is over a year. However, situations and positions change and, given her experience in the criminal courts (she's a former assistant district attorney) and in civil matters, perhaps Judge Bisignani-Moyle could someday go on to substantially serve in those arenas as well.

Wyoming/Sullivan Counties

District Judge Russell Shurtleff won the election for Judge of Wyoming/Sullivan Counties (one judge covers both counties). He is replacing retiring Judge Brendan Vanston.

Monroe County

In Monroe County, Judge Maggie Worthington easily secured the necessary "yes" vote to be retained for another 10 year terms as a court of common pleas judge.

Also, Jennifer Harlacher Sibum, running unopposed after having secured a victory on both sides, Republican and Democrat, in the primary, was elected to the Court of Common Pleas. Judge Sibum will be replacing retiring Judge Jerome Cheslock.

Carbon County

Palmerton attorney Steve Serfass was elected Carbon County's third judge in yesterday's election.

Northampton County

Previously appointed Judge Leonard Zito, District Judge Michael Koury, Jr., and state lawmaker Craig Dally were elected to the bench in Northampton County.


Other Judicial Elections

According to this morning's local newspapers, Republican Joan Orie Melvin has defeated Democrat Jack Panella in the election for a new Supreme Court Judge. Judge Melvin's win restores a one-seat majority for the GOP on that bench.

In the Commonwealth Court of Pennsylvania, Pittsburgh lawyer Patricia McCullough and Harrisburg lawyer Kevin Brobson were victorious.

In the Pennsylvania Superior Court, as of this morning it was being reported that Allegheny County Judge Judy Olsen and Tioga County lawyer Sallie Mundy both prevailed. However, elections for two other seats on that bench were too close to call.


For more background on the winning Judges, I suggest going to their individual campaign websites. Anyone desiring any additional information, please feel free to contact me and I can tell you what I know of the background of some of these candidates that I have worked with before.

Expert Testimony on Fibromyalgia Allowed In Lackawanna County

In my preparations for my upcoming 2009 Civil Litigation Update presentation for the Lackawanna County Bench Bar Conference (Oct. 9th at the Scranton Hilton), I was advised of the following recent trial court opinion by Judge Terrence R. Nealon out of the Lackawanna County Court of Common Pleas.

I recently profiled the July 7, 2009 opinion issued by Judge Michael A. George of the Adams County Court of Common Pleas, George v. Frederick, (Adams Co., July 7, 2009), in which he showed that the trial courts of Pennsylvania are continuing to struggle with the issue of whether or not expert testimony should be allowed to support a plaintiff's effort to link his or her alleged fibromyalgia condition to the traumatic event at issue in the case.

In the George case, the Judge could not even issue an opinion on the issue based on what he had before him, but rather, ordered the parties to provide him with more information and articles from the general medical community on the methodology associated with a fibromyalgia diagnosis to assist the court in determining whether such information should be accepted.

In Lackawanna County, back on January 9, 2009, Judge Terrence R. Nealon issued an opinion in the case of Crossman v. Delisi, 2009 WL 221941 (Lacka Co. 2009) in which he denied a Defendant's Motion in Limine seeking to preclude the Plaintiff's medical expert, Dr. Scott K. Epstein, a physiatrist, from testifying that the Plaintiff's fibromyalgia symptoms were related to the motor vehicle accident at issue.

According to the opinion, Dr. Epstein remained firm in this opinion during the cross-examination of his videotaped deposition. Judge Nealon also considered the contrary testimony of the defense medical expert, orthopedic surgeon, Dr. Thomas Allardyce, who questioned any conclusion that fibromyalgia has been definitively linked to trauma.

Judge Nealon applied the test of admissibility set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) as required by the Pennsylvania Supreme Court decision in Blum v. Merrell Dow Pharmaceuticals, Inc., 764 A.2d 1, 4 (Pa. 2000). Under Frye, novel scientific evidence is admissible if the methodology that underlies the expert's conclusion has gained general acceptance in the relevant scientific community.

Relying upon Dr. Epstein's allegation that a majority of the medical literature recognizes that fibromyalgia may be caused by trauma, as well as relying upon the court's own independent research into articles stating the same as cited in other cases, Judge Nealon held that "[a]ssuming arguendo that Dr. Epstein used a particular methodology in formulating his opinion regarding the cause of the plaintiff's fibromyalgia, the expert testimony submitted for our review and the relevant medical literature discovered during our own research,...reflect that it has gained the requisite level of acceptance in the medical community."

As such, the Defendant's Motion in Limine was denied and the Plaintiff was permitted to present Dr. Epstein's testimony that the Plaintiff's fibromyalgia was related, or caused, by the motor vehicle accident in question.

Several years ago, back in April of 2005, I issued an article exploring this very topic and suggesting, at least back at that time, there was no general agreement in the medical community that fibromyalgia can result from trauma so as to support the admissibility of such testimony. That article, entitled "Fibromyalgia as a Diagnosis in Personal Injury Cases," may be viewed by clicking on the title to this post.