Civil Trial Stayed Pending Resolution of Companion Criminal Case

In the case of Estate of Dugan v. Hotton, No. 2023-CV-4957 (C.P. Lacka. Co. Jan. 6, 2026 Nealon, J.), the court granted a Defendant’s Motion to Stay a civil jury trial in a wrongful death action arising out of a motor vehicle accident pending the resolution of the Defendant’s companion criminal court proceedings under charges of driving under the influence.

In so ruling, the court reviewed the applicable six-factor balancing test adopted by the Pennsylvania Superior Court in the case of Kessee v. Dougherty, 230 A.3d 1128 (Pa. Super. 2020). After reviewing those 6-factors, the court deemed it appropriate to enter the stay.

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas, who decided this issue, handed down a very detailed Opinion outlining the current status of the law in this regard.

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

Defense counsel in this case is Daniel E. Cummins, Esq.

Source of image: Photo by Cottonbro Studios on www.pexels.com.

Court Declines to Lift Stay in Civil Matter Due to Pending Criminal Case

In the case of Piazza v. Young, No. 4:19-CV-00180 (M.D. Pa. Feb. 14, 2023 Brann, C.J.), the court denied a Plaintiff’s Motion to Lift an Existing Discovery Stay Order in a case in which certain Defendants had secured a stay of any discovery due to a pending parallel criminal action.

In reviewing the Motion, the court addressed the following factors:

1. The extent to which the issues in the civil and criminal cases overlapped;

2. The status of the criminal proceedings, including whether any Defendants have been
indicted;

3. The Plaintiff’s interests in expeditious civil proceedings weighed alongside the prejudice
to the Plaintiff caused by the delay;

4. The burden on the Defendants;

5. The interest of the court; and,

6. The public interests

In reviewing these factors, the court noted that the civil and criminal cases were identical in this matter arising out of an alleged fraternity hazing claims. The court also noted that the civil court would not penalize the Plaintiffs for any delays that may be caused by the criminal proceedings. For example, the court indicated that discovery deadlines could be extended if the criminal proceedings were not resolved by the time the deadlines expired.

The court additionally noted that the Defendants indicated that, should discovery be allowed to proceed, the Defendants would likely assert their Fifth Amendment rights against self-incrimination, which could lead to further discovery disputes.

The court also noted that, given the overlap between the civil case and the ongoing criminal actions, requiring the Defendants to proceed with discovery in the civil case and sit for depositions would create a real risk of undue prejudice for the Defendants.

Based upon an application of the factors to the case presented, the court denied the Motion to Lift the Stay.

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

Federal Court Judge Requires Citation To Statutes Referenced in Complaint

In the case of Fuhrman v. Mawyer, No. 1:21-CV-02024 (M.D. Pa. June 28, 2022 Kane, J.), the court declined to dismiss a punitive damages claim where the record revealed that the Defendant tractor trailer driver was facing pending criminal charges of homicide by vehicle and careless driving.

The court found that the Plaintiff had sufficiently pled that the Defendants’ actions leading to the fatal accident at issue constituted a reckless disregard of the substantial risk of a serious injury.  The Plaintiff alleged, in part, that the tractor trailer driver ran a red light while driving through town and struck the Plaintiff's vehicle, resulting in fatal injuries to the Plaintiff.

The Court noted that, while the Plaintiff had pled in the Complaint the many violations that made up the charges against the Defendant driver, the Plaintiff had not pled as to whether the Defendant driver had been formally charged.  The Court noted that it had the power to look outside of the Complaint to review documents of public record.  In doing so, the Court confirmed that the Defendant had been formally charged criminally.

Given the facts pled in the Complaint and the information gathered by the Court from a review of public records, the Court held that it would be premature to dismiss the punitive damages claims at the pleadings stage.

The court did otherwise grant in part and deny in part the Defendant’s Motion for a More Definite Statement under F.R.C.P. 12(e). 

More specifically, as to the subparagraphs of the Complaint that alleged that a Defendant breached a law or regulation, the court held that the Plaintiff should cite to the specific statute, ordinance, regulation, or rule that the Defendant was alleged to have violated.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 21, 2022).

Court Addresses Circumstances Under Which A Deponent May Properly Assert Fifth Amendment Right Against Self-Incrimination

In the case of Sweet v. The City of Williamsport, No. 20-CV-00512 (C.P. Lyc. Co. June 27, 2022 Linhardt, J.), the court addressed the circumstances under which a civil litigant may properly assert his or her Fifth Amendment rights against self-incrimination at a deposition.

According to the Opinion, this case arose out of a fatal motor vehicle accident.

When the opposing parties requested the deposition of the Defendant driver, counsel for the Defendant driver advised opposing counsel that the Defendant driver would be asserting his Fifth Amendment rights against self-incrimination relative to any questions regarding the facts of the accident.

The opposing parties challenged the ability of the Defendant driver to assert his right against self-incrimination at the deposition, in part, due to the fact that the Defendant driver had already been previously convicted of several summary traffic offenses arising out of the subject incident and that the provisions of 18 Pa. C.S.A. §110(1)(ii) would bar future prosecutions against the Defendant driver thereby vitiating the Defendant driver’s need to assert his Fifth Amendment rights at the deposition.

The opposing parties filed a motion to compel the Defendant driver to attend a deposition and to answer the questions that would be presented relative to the accident.    

In its Opinion, the court affirmed that, under §110, in most cases, a past conviction would bar a future prosecution based upon the same conduct or arising from the same criminal episode. The court noted that the Pennsylvania Supreme Court had recently confirmed that this rule applies even when the previous conviction was for traffic summaries rather than misdemeanors or felonies.

However, it was acknowledged by the court that there was an exception that allowed further prosections for situations in which evidence in support of an additional offense was not known to the prosecuting officer at the time of the commencement of the first criminal trial.

In this matter, the Defendant driver voiced a concern about the possibility of his being prosecuted for new charges arising out of the subject accident if his testimony at a deposition revealed evidence that would support new offenses not previously known by the prosecuting officer at the time of his trial on traffic summaries.

In that regard, the question became whether the Defendant driver had a reasonable basis to fear self-incrimination. In assessing this question, the court in this case noted that the Pennsylvania Supreme Court has stated that “for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of the circumstances that the witness is mistaken in the apprehension of self-incrimination."

The court concluded that the Defendant driver in this case did have a reasonable fear of self-incrimination and, as such, could not be compelled to testify at the deposition in the case without retaining the right to assert his Fifth Amendment rights. 

More specifically, the court noted that the prosecutor could interpret deposition testimony by the Defendant driver to show possible recklessness in the Defendant driver’s actions which could support additional criminal offenses in a matter where the prosecutor may have only been aware of conduct amounting to carelessness before the deposition was completed.

In its Opinion, the court emphasized that the Defendant driver need not establish what he might testify to at a deposition, and that the court could not obviously compel the Defendant driver to explain the factual basis of his fear of self-incrimination, as such a compulsion would pervert the Fifth Amendment right against self-incrimination. Rather, the court allowed the Defendant driver in this case to explain why, at least theoretically, his fear of self-incrimination was reasonable in an effort to establish that it is not “perfectly clear” that the Defendant driver was “mistaken in his apprehension of self-incrimination….”

After a review of the submitted arguments, the court ruled that the Defendant driver could not be compelled to complete a deposition at which he was not entitled to assert his Fifth Amended rights against self-incrimination. 

However, the court also noted that the parties were exploring the possibility of the Defendant driver securing an immunity agreement from the prosecutor at issue.

It was confirmed by the court that, if the Defendant driver secured an immunity agreement from the district attorney, the Defendant driver would have no further fear of future prosecution based upon any deposition testimony in which case the Defendant driver would be compelled to attend the deposition and not be permitted to assert his Fifth Amendment rights against self-incrimination.

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

Motion to Stay Civil Case Pending Resolution of Criminal Case Granted

A Motion to Stay a civil matter pending the resolution of a criminal investigation and charges was granted in the Federal Middle District court case of Doe v. City of Scranton, No. 3:20-490 (M.D. Pa. March 18, 2021 Mannion, J.).

According to the Opinion, the Defendant allegedly used his position as a police officer to coerce sex from woman he used as confidential informants in drug cases he was investigating.

This civil case is proceeding while the companion criminal charges are being investigated.  The court noted that there is an alleged expectation that criminal charges will be filed against the Defendant.

Based upon the court’s review of the Motion to Stay and related materials, Judge Mannion granted the motion and the case was stayed.

The court noted that, in federal court, the decision to stay a case is within the sound discretion of the trial court judge.  Judge Mannion went on to review the six factors to be considered and, in the end, allowed for the stay of the civil matter as requested by the Defendant.

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

ARTICLE: Shutdown Makes for a Quiet year in Civil Litigation

Here is a copy of my December 10, 2020 Year-End review article published in The Pennsylvania Law Weekly on civil litigation developments in Pennsylvania over the past year.  It is republished here with permission.

My Year-End article on developments in Motor Vehicle Accident Law is forthcoming.


Shutdown Makes for a Quiet Year in Civil Litigation

By Daniel E. Cummins | December 10, 2020

  Daniel E. Cummins of Cummins Law.


While 2020 was a year in a pandemic and political upheaval, things were relatively calm in terms of any notable civil litigation decisions. The biggest news of the year was that courts were not conducting trials which gave judges more time to issue notable decisions, some of which are outlined below.
COVID-19 Stops Civil Litigation Trials

In 2020, the rise of COVID-19 pandemic shut down the court system in March. Generally speaking, the courts were almost entirely shut down for two months before gradually opening over the summer with virtual online proceedings. Then by September, the courts began to hold trials again in courtrooms outfitted with plexiglass and jurors spread out between the jury box and the gallery in an effort to maintain social distancing. It remains to be seen how the COVID-19 pandemic will influence jury awards.

Stay of Civil Litigation Matters Pending Result of Criminal Case

In a case of first impression handed down in March in the matter of Keesee v. Dougherty, 230 A.3d 1128 (Pa. Super. March 16, 2020), the Pennsylvania Superior Court confirmed the standards that a trial court judge must consider with respect to a request by a defendant to stay a civil lawsuit while a companion criminal case is pending.

The lawsuit in this matter was brought by a nonunion electrical contractor against an indicted union boss and other defendants.

With its ruling the Pennsylvania Superior Court adopted the six-factor test previously established by the federal courts in the case of In re Adelphia Communications, No. 02-1781, (E.D. Pa. 2003), for determining whether to stay a civil case pending resolution of a related criminal matter.

Going forward, under Keesee, the six factors to be addressed by a trial court in determining whether to stay a civil case pending the resolution of a companion criminal case included the extent to which the issues in the civil and criminal cases overlap, the status of the criminal proceedings and whether any defendants have been indicted, the plaintiff’s interests in an expeditious civil proceeding weighed against the prejudice to the plaintiff caused by the delay, the burden on the defendants, the interests of the court, and the public interests.

What Happens in Pennsylvania, Stays in Pennsylvania

One of the most active areas of Pennsylvania law over the past year was on the issue of personal jurisdiction in Pennsylvania over foreign defendants.

Just recently, the judicially activist Pennsylvania Supreme Court advanced its agenda of helping plaintiff’s causes by expanding the ambit of jurisdiction over foreign defendants and opening the door even wider to hauling more potentially liable parties into Pennsylvania personal injury matters. In the case of Hammons v. Ethicon, 7 EAP 2019 (Pa. Oct. 21, 2020) (Op. by Baer, J.), the Pennsylvania Supreme Court reviewed jurisdictional issues in a pelvic mesh products liability case. In the end, the court affirmed the entry of a judgment in favor of the plaintiffs over foreign defendants who had raised issues of jurisdictional.

The Hammons case presented a law school essay type of jurisdictional challenge in a matter involving a lawsuit filed in Pennsylvania by an Indiana resident who had a surgical procedure performed in Indiana and who alleged injuries from an implanted pelvic mesh that was manufactured by New Jersey corporate defendants.

The Pennsylvania Supreme Court provided a detailed summary of the current status of the law pertaining to personal jurisdiction that was noted to be in a state of flux. The court reviewed several notable U.S. Supreme Court opinions, the most recent of which was in the case of Bristol-Myers Squibb v. Superior Court of California, San Francisco County, 137 S. Ct. 1773 (2107). According to legal commentators, the Bristol-Myers decision by the Supreme Court was deemed to be a defense-friendly decision.

Concisely, after the Bristol-Myers case, the following three elements must be met in order for specific personal jurisdiction to lie over a defendant. First, a defendant must have purposefully conducted activities within the forum state, or must have purposefully directed its conduct towards the forum state. Second, the plaintiff’s claim must have arisen out of or relate to the defendant’s activities in the forum state or directed toward the forum state. Third, a finding of jurisdiction over the defendant must be found by the court to be fair and reasonable.

In Hammons, the Pennsylvania Supreme Court diverged from the law set down by the U.S. Supreme Court in Bristol-Meyers by rejecting the defense’s arguments that, under Bristol-Myers, the jurisdictional analysis should focus on the jurisdiction’s connection to each of the plaintiff’s individual claims. Instead, the 6-1 Majority in Hammons, with Chief Justice Thomas G. Saylor dissenting, ruled that the focus should remain on the defendant’s conduct.

In the end, the court found that the defendant’s suit-related contacts justified jurisdiction in that the particular defendant supervised the design and manufacturing process of its product in Pennsylvania in collaboration with a Pennsylvania company. The court additionally noted that this particular defendant also worked with a Pennsylvania physician in developing and marketing the product. In favoring the plaintiffs’ position, the Pennsylvania Supreme Court rejected a more narrow jurisdiction analysis set down by none other than the U.S. Supreme Court as such a contrary view “could unnecessarily restrict access to justice for plaintiffs.”

Split of Authority on Another Jurisdiction Issue

In terms of jurisdictional issues in the federal courts of Pennsylvania, it appears that a split of authority has arisen between the federal district courts of Pennsylvania as to whether or not Pennsylvania’s long arm statute imposing general jurisdiction upon any foreign corporation registering to do business in Pennsylvania is constitutional.

On the one side, we have the case of Kraus v. Alcatel-Lucent, 441 F.Supp.3d 68 (E.D. Pa. Feb. 27, 2020 Savage, J.), in which the court ruled that Pennsylvania’s long-arm statute, which allows for general jurisdiction on any foreign corporation registering to do business in Pennsylvania, is constitutional.

The case of Weigold v. Ford Motor, No. 20-2141 (E.D. Pa. Sept. 9, 2020 Savage, J.) represents another decision in which a court held that a foreign company’s registration to do business in Pennsylvania also represents a valid consent to general personal jurisdiction over that company in lawsuits filed in Pennsylvania.

In contrast, in the case of Reynolds v. Turning Point Holding, No. 2:19-CV-01935-JDW (E.D. Pa. Feb. 26, 2020 Wolson, J.), the court granted a motion to dismiss for lack of personal jurisdiction after finding, in part, that Pennsylvania’s statutory scheme requiring foreign corporations to consent to general personal jurisdiction in Pennsylvania by virtue of registering to do business in Pennsylvania violates the due process clause of the U.S, Constitution.

According to this opinion, the defendant franchiser involved in this matter did not have any significant contacts with Pennsylvania and the store where the plaintiff was alleged injured was a separately maintained corporation. The court in Reynolds specifically ruled that the defendant’s registration as a foreign corporation to do business in Pennsylvania was insufficient to subject it to general personal jurisdiction.

Over the past year, this important issue was also watched the state court arena. The case of Murray v. American LaFrance, 2020 Pa. Super. 149 (Pa. Super. June 25, 2020) (en banc) (Op. by Bowes, J.), was viewed as the case in which would determine the validity of the argument that Pennsylvania’s business registration law was, in and of itself, sufficient to establish jurisdiction over an out-of-state company where that company has registered with the state to do business in Pennsylvania.

However, the en banc panel of the Superior Court ruled that the plaintiff had failed to properly preserve this issue of jurisdiction before the trial court and, as such, the court found that the issue was not preserved. As a result, litigants will have to await another day for this important and unsettled issue to be decided in Pennsylvania.

Products Liability

In 2020, the Pennsylvania Supreme Court was poised to decide whether Amazon.com could be sued in a products liability action in Pennsylvania as a “seller” of a defective product.

The Pennsylvania Supreme Court agreed to accept that issue for review as certified to its attention by the U.S. Court of Appeals for the Third Circuit in the case of Oberdorf v. Amazon.com, No. 41 EM 2020 (Pa. 2020).

In the case of Oberdorf v. Amazon.com, No. 18-1041 (3d Cir. July 3, 2019), the Third Circuit had reversed the lower court and held that Amazon.com may be sued as a “seller” in products liability cases.

The case arose out of an incident during which the plaintiff was injured when a retractable leash she was using while walking her dog allegedly malfunctioned, snapped back, and caused permanent injury to the plaintiff’s eye.

It was more recently reported that this case was settled before the Pennsylvania Supreme Court could issue a decision on the question. As such, practitioners will have to wait for another day to hear from the Pennsylvania Supreme Court on whether Amazon can be sued in products liability claims here in Pennsylvania.

Medical Malpractice

The validity of the doctrine of res ipsa loquitur in medical malpractice matters was reaffirmed in a couple of cases over the past year. In the case Lageman v. Zepp, 237 A.3d 1098 (Pa. Super. 2020), the Pennsylvania Superior Court found that a trial court had erred in failing to charge the jury on the doctrine of res ipsa loquitur. The court found that, with the help of expert opinion, plaintiff had established all three elements of the res ipsa loquitur doctrine in connection with the defendant’s performance of the medical procedure at issue.

The Pennsylvania Superior Court emphasized that, while the doctrine of res ipsa loquitur is usually associated with events that are within the common knowledge of laypersons and not requiring any expert testimony, the application of the doctrine is not foreclosed where the plaintiff also presents a medical expert offering evidence of other specific negligent conduct.

In another res ipsa loquitur case, Snyder v. Scranton Hospital, No. 19-CV-83 (C.P. Lacka. Co. Aug. 28, 2020 Nealon, J.), the court denied the defendants’ motions for partial summary judgment in which it was asserted that the plaintiff should not be permitted to rely upon the doctrine of res ipsa loquitur in support of the claims presented.

According to the opinion, the plaintiff underwent ear surgery but allegedly awoke with a severe left ulnar nerve neuropathy injury as a result of a compression injury allegedly due to the medical providers’ failure to properly position, protect and assess the plaintiff’s left arm while he was unconscious during the surgery.

The plaintiff produced expert opinion evidence that such an injury does not happen during an ear surgery in the absence of negligence on the part of the medical providers. The plaintiff asserted that that expert evidence also served to eliminate other potential causes of the injury. The defense produced its own expert testimony in support of claims that the plaintiff ‘s injury was indeed the result of other unrelated causes.

The court denied the motion given that there was a dispute between the experts as to whether the doctrine of res ipsa loquitur should be applied. In the end, that issue was left for the jury to decide.

Looking Ahead

In the year ahead, the courts will continue to navigate the coronavirus pandemic in terms of holding trials. However, it is expected that the trial courts and the appellate courts will continue to churn out notable decisions on a wide variety of civil litigation issues, including with respect to jurisdiction, proper venue, and in a wide variety of premises liability, products liability and medical malpractice matters.

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

ARTICLE: Criminally Charged Defendants Face Additional Hurdles in Companion Civil Lawsuits

Criminally Charged Defendants Face Additional Hurdles in Companion Civil Lawsuits

By Daniel E. Cummins | April 16, 2020

Pennsylvania Law Weekly

Daniel E. Cummins of Cummins Law.

Oftentimes, when a personal injury claim arises out of an underlying accident that involves criminal conduct by a tortfeasor defendant, there will be a criminal case proceeding against the defendant while the plaintiff is also simultaneously pursuing her or his civil lawsuit. This could arise, for example, where a motor vehicle accident emerges out of a DUI, where a student is injured in a hazing incident at a fraternity, or when a person is injured in an assault and battery.

In such cases, a defendant faced with criminal charges while the civil lawsuit is ongoing will usually file a motion with the civil court requesting that the civil case be stayed pending the resolution of the criminal case.

The concern for the defendant in such situations is that his exercise of the constitutionally protected right against self-incrimination under the Fifth Amendment to both the Pennsylvania and U.S. Constitutions may be in danger if the defendant is forced to answer interrogatories or undergo a deposition regarding the facts of the underlying matter.

Until recently, there was no set standard of review for civil trial court judges to rely upon in order to decide such motions to stay in the state courts of Pennsylvania.

A Foreshadowing of Appellate Precedent
In a prescient decision back in 2016 in the case of Liu v. Pi Delta PSI Fraternity, 302-CV-2015 (C.P. Monroe Co. 2016), Judge Arthur L. Zulick of the Monroe County Common Pleas Court reviewed the law surrounding a motion to stay a civil litigation matter pending the disposition of criminal charges asserted against the defendants in a companion case.

The Lui case arose out of fatal injuries sustained by the plaintiff’s decedent allegedly as a result of hazing incidents with a fraternity. During the pendency of this civil litigation matter, criminal charges were also proceeding against certain defendants.

After the plaintiffs served discovery on the defendants, certain defendants filed a motion seeking to stay the civil litigation matter pending the disposition of their criminal charges. One basis for the motion was that the defendants asserted that they would be forced to choose between waiving their constitutional privilege against self-incrimination and also would risk information being used against them in the subject criminal cases.

In his decision, Zulick reviewed the Fifth Amendment and Article 1, Section 9 of the Pennsylvania Constitution regarding the privilege against self-incrimination and its application in civil litigation matters.

Zulick found that the question of whether to stay all or part of a civil proceeding because of a pending criminal prosecution required a balancing of the various interests of the parties. Zulick noted that, while the Pennsylvania appellate courts had not yet adopted a specific balancing test to be applied in these situations, the federal courts had. In the Liu case, Zulick relied upon the factors noted in the case of In re Adelphia, (E.D. Pa. 2003). After applying these factors to the case before him, Zulick issued a split decision, granting the motion to stay in part but allowing other parts of discovery to proceed as well.

While Zulick was relying upon the six-factor test developed in the Pennsylvania federal courts, other Pennsylvania state trial court judges were apparently relying upon a variety of different standards of review to decide whether to grant a civil defendant a stay of a plaintiff’s personal injury lawsuit pending the results of a companion criminal court case against the defendant. The question of whether to grant a motion to stay in these circumstances was in need of appellate guidance with respect to a uniform way for state trial courts to address such motions.

An Appellate Case of First Impression

That appellate guidance arrived in March of this year, when the Pennsylvania Superior Court, in a case of first impression at the state court appellate level, adopted the same six-factor test in the case of Keesee v. Dougherty, 2020 Pa. Super. 64 (Pa. Super. March 16, 2020 Bowes, J., Olson, J., Stabile, J.) (Op. by Olson, J.). In so ruling, the Superior Court also cited to the federal case of In re Adelphia Communications, No. 02-1781 (E.D. Pa. 2003).

Under the precedent of the recent Keesee case, the six factors that are now to be addressed by a trial court in determining whether to stay a civil case pending the resolution of a companion criminal case include the following: the extent to which the issues in the civil and criminal cases overlap, the status of the criminal proceedings and whether any defendants have been indicted, the plaintiff’s interests in an expeditious civil proceeding weighed against the prejudice to the plaintiff caused by the delay, the burden on the defendants, the interests of the court, and the public interests at issue.

The personal injury lawsuit in the Keesee case was brought by a nonunion electrical contractor against an indicted union boss and other defendants after the plaintiff was allegedly physically assaulted after the plaintiff secured a contract on a townhome project and refused to join the union. The defendants’ motion to stay, which asserted there were companion ongoing criminal investigations, was denied by the trial court. According to the Superior Court in Keesee, the trial court correctly referred to the six-factor test developed in the case of In re Adelphia Communications but had only reviewed the first of the six factors in its analysis.

The Superior Court remanded the case back to the trial court level with instructions to the trial court to conduct another review of the defendants’ motion to stay under the entire six-factor test.

While indicted defendants are considered innocent until proven guilty, in the past, trial courts have generally declined to completely stay a companion civil case. In the interests of judicial economy and of allowing injured party plaintiffs to move their cases forward toward compensation for the injuries alleged, the trial courts have sometimes attempted to craft a remedy that allows the case to proceed while, at the same time offering some protections for the defendant’s right against self-incrimination.

For example, in a multidefendant case, a trial court may allow the entire case to proceed against all defendants, but grant the defendant who is facing criminal charges a reprieve against answering interrogatories about the underlying accident or undergoing a deposition.

However, in cases where there is only one defendant, experience tells that most trial courts will deny the stay motion and allow the civil plaintiff’s case to proceed forward. The rationale for supporting an injured party’s right to compensation for injuries over a tortfeasor’s constitutionally protected right against self-incrimination is often couched in the language of several of the factors ultimately adopted by the Keesee court. What is usually not said, but which is likely true and perhaps rightfully so, is that trial courts do not look kindly upon tortfeasors who are alleged to have engaged in criminal actions that resulted in injury to others.

When a civil defendant’s motion to stay a civil lawsuit is denied, that defendant must resort to asserting his or her Fifth Amendment right against self-incrimination in response to any interrogatories or deposition questions. Questions may arise on whether or when a defendant may assert that right in a civil litigation matter.

Not Everyone Can Assert the Fifth

In cases where a defendant’s motion to stay a civil case due to a pending criminal case also proceeding at the same time is denied, the defendant has the option of pleading the Fifth Amendment in response to interrogatories and deposition questions about the facts of the underlying accident. The problem for the defendant in this regard is that “the court in a civil case may draw any adverse inference which is reasonable from the assertion of the privilege” against self-incrimination, as in Crozer-Chester Medical Center v. May, 531 A.2d 2, 6 (Pa. Super. 1987), appeal dismissed, 550 A.2d 196 (Pa. 1988).

The state courts of Pennsylvania have ruled that, obviously, a claim against self-incrimination cannot be claimed by a defendant when he has already passed through the criminal cases and has pleaded guilty or has been convicted. See Rogers v. Thomas, (C.P. Lacka. Co. 2015 Nealon, J.) citing with “see” signal Commonwealth v. Melvin, 103 A.3d 1, 51 (Pa. Super. 2014).

A question arises as to what extent a defendant may properly assert the privilege against self-incrimination in a civil matter when criminal charges have not yet been filed.

In the Pennsylvania Supreme Court case of Commonwealth v. Saranchak, 866 A.2d 292 (Pa. 2005), the court set down the standard for trial courts to apply when determining whether a Fifth Amendment privilege has been properly invoked. The court noted that, when a witness pleads the Fifth, “‘it is always for the court to judge if the silence is justified, and an illusory claim should be rejected,’” quoting Commonwealth v. Carrera, 227 A.2d 627 (Pa. 1967).

The Supreme Court further noted that “for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answer demanded by the question presented to the witness cannot possibly have such a tendency.”

As such, it appears that under this standard the trial courts would err on the side of allowing the witness to assert such an important privilege. In fact, the Pennsylvania Supreme Court cautioned in the Carrera and Saranchak cases that “if an individual possesses reasonable cause to apprehend danger of prosecution, “it is not necessary that a real danger of prosecution exist to justify the exercise of the privilege against self-incrimination.”

In the event that a motion to stay a civil matter pending the results of a companion criminal case is denied, and the defendant goes on to assert the Fifth in response to any interrogatories or deposition questions, the plaintiff will be entitled to argue an adverse inference as well as receive a jury instruction in that regard. With that instruction, a jury will be permitted to infer that, had the defendant answered questions as to how the plaintiff’s injury occurred, the information provided by the defendant would have likely favored the plaintiff’s case.

As such, in the end, while criminal defendants may be considered to be innocent until proven guilty, they also run the substantial risk of being found negligent before being proven guilty.



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

Superior Court Adopts Test For Staying a Civil Lawsuit While Criminal Charges Pending

In a case of first impression, the Pennsylvania Superior Court has ruled in Keesee v. Dougherty, 2020 Pa. Super. 64 (Pa. Super. March 16, 2020 Bowes, J., Olson, J., Stabile, J.)(Op. by Olson, J.), that a trial court judge must reconsider her refusal to stay a civil lawsuit while a companion criminal case is pending.

The lawsuit in this matter was brought by a nonunion electrical contractor against an indicted union boss and other defendants.

With its ruling the Pennsylvania Superior Court adopted the six-factor test established by the federal courts for determining whether to stay a civil case pending resolution of a related criminal matter.  The court cited to the federal case of In re Adelphia Communications, No. 02-1781, 2003 WL 22358819 (E.D. Pa. 2003).

The six factors to be addressed by a trial court in determining whether to stay a civil case pending the resolution of a companion criminal case are, as follows:

1.         The extent to which the issues in the civil and criminal cases overlap

2.          The status of the criminal proceedings and whether any Defendants have been indicted  

3.         The Plaintiff’s interests in an expeditious civil proceeding weighed against the prejudice to the Plaintiff caused by the delay

4.         The burden on the Defendants

5.         The interests of the court

6.         The public interests

In Keesee v. Dougherty, a three-judge Superior Court panel unanimously reversed a decision by the trial court judge who denied the defendants’ motion to stay the proceedings.  The Superior Court remanded the case for further consideration.

The Keesee decision is also notable for the Superior Court's analysis and application of the collateral order doctrine to allow the review of this appeal in the first place.

Anyone wishing to review this decision may click this LINK.


Source:  Article: "Judge Ordered to Reconsider Motion to Stay Civil Suit Against 'Johnny Doc' Pending Criminal Case" by Zack Needles of The Legal Intelligencer (March 18, 2020).

Judge Zulick Weighs Plaintiff's Right to Ongoing Discovery Against Defendants Facing Criminal Charges in Companion Case

In his recent decision in the case of Liu v. Pi Delta PSI Fraternity, Inc., 302-CV-2015 (C.P. Monroe Co. Aug. 22, 2016 Zulick, J.), Judge Arthur L. Zulick reviewed the law surrounding a Motion to Stay a civil litigation matter pending the disposition of criminal charges asserted against the Defendants in a companion case.  

This matter arose out of fatal injuries sustained by the Plaintiff’s decedent allegedly as a result of hazing incidents with a fraternity.

During the pendency of this civil litigation matter, criminal charges were also proceeding against certain Defendants.  

After the Plaintiffs served discovery on the Defendants, certain Defendants filed a motion seeking to stay the civil litigation matter pending the disposition of their criminal charges.   One basis for the motion was that the Defendants asserted that they would be forced to choose between waiving their constitutional privilege against self-incrimination and also would risk information being used against them in the subject criminal cases.  

Judge Arthur L. Zulick
Monroe County

In his decision, Judge Zulick reviewed the Fifth Amendment and Article 1, Section 9 of the Pennsylvania Constitution regarding the privilege against self-incrimination and its application in civil litigation matters.  

Judge Zulick also found that the question of whether to stay all or part of a civil proceeding because of a pending criminal prosecution requires a balancing of the various interests of the parties.   Judge Zulick noted that, while the Pennsylvania Appellate Courts have not adopted a specific balancing test to be applied in these situations, the federal courts have.   The court cited the factors noted in the case of In Re Adelphia, 2003 WL 22358819 (E.D. Pa. May 13, 2013).

The court applied the following factors in this Lui case:

1.         The extent to which the issues in the civil and criminal cases overlap

2.          The status of the criminal proceedings and whether any Defendants have been indicted  

3.         The Plaintiff’s interests in an expeditious civil proceeding weighed against the prejudice to the Plaintiff caused by the delay

4.         The burden on the Defendants

5.         The interests of the court

6.         The public interests

After applying these factors to the case before him, Judge Zulick issued a split decision, granting the Motion to Stay in part but allowing other parts of discovery to proceed as well.  

Anyone wishing to review Judge Zulick's decision in the Lui case may click this LINK.