Article: The Appellate Ladder Looks Inviting For Plaintiffs

The below article of mine appeared in the July 24, 2025 edition of the Pennsylvania Law Weekly and is republished here with permission.

Expert Opinion

The Appellate Ladder Looks Inviting for Plaintiffs


July 24, 2025

By

Daniel E. Cummins

Recent decisions from the Pennsylvania Supreme confirm that plaintiffs continue to a pendulum shift in their favor. Over the past year, the Pennsylvania Supreme Court was beginning to show signs of moderation relative to their previous line of trailblazing decisions that overturned years of precedent in a plaintiff-favorable manner.

However, with its recent decisions, the Pennsylvania Supreme Court has again expanded the rights of injured parties to recover and have even telegraphed to the plaintiffs bar how to secure additional victories in the future.

Recent Decisions by Pa. Supreme Court to Expand Ability to Recover

For nearly the past decade, the Pennsylvania Supreme Court has issued one decision after another in favor of plaintiffs' causes. The plaintiffs bar has been repeatedly successful in convincing the court to overturn decades-long precedent that previously favored defendants.

For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Pennsylvania Supreme Court overruled the then-12-year-old Pennsylvania Commonwealth Court decision in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa. Cmwlth. 2006), to hold that PennDOT should only be immune from suit in guide rail claims in limited circumstances. Prior to Cagey, PennDOT was largely protected from any liability exposure relative to accidents involving guide rails. This decision expanded the ability of parties injured in highway accidents to include PennDOT in the lawsuit in the effort to seek an additional compensation.

In 2018, the Pennsylvania Supreme Court also expanded the ability of injured parties to seek recoveries by handing down another significant reversal of long-standing precedent. In the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Supreme Court liberalized the ability of injured parties to seek recoveries from governmental agencies.

The Supreme Court in Balentine overturned 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1). This ruling expanded the number of cases that would therefore fall within the scope of the exception to immunity. In other words, the ruling by the Pennsylvania Supreme Court allows more injured parties to seek a recovery against negligent governmental agencies.

A recent example of the Pennsylvania Supreme Court actually going too far in overturning long-standing defense-favorable precedent can be seen in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019). In Gallagher, the Pennsylvania Supreme Court overturned 20 years of precedent and held that the household exclusion found under automobile insurance policies was completely unenforceable as a matter of law across the board.

The Pennsylvania Supreme Court reiterated its plaintiffs-friendly stance on the household exclusion in the case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021). In Donovan, the court reaffirmed its previous decision in Gallagher v. GEICO and again held that plaintiffs need not worry about the household exclusion provision as it was invalid and, therefore, unenforceable.

The Gallagher decision threw the lower state and federal courts into a tizzy of conflicting decisions on whether the household exclusion should still be found to be enforceable under different factual scenarios.

Thereafter, without overtly acknowledging that the Gallagher decision went too far, the Pennsylvania Supreme Court walked back Gallagher’s complete eradication of the enforceability of the household exclusion in the case of Erie Insurance Exchange v. Mione, 289 A.3d 524 (Pa. 2023). In Mione, the Pennsylvania Supreme Court limited the Gallagher decision to its facts and agreed that the household exclusion did indeed remain valid and enforceable in at least certain circumstances.

The Pennsylvania Supreme Court also recently expanded the right of injured parties to recover in arbitration matters. In 2022, the court promulgated a new Rule that amended Pennsylvania Rule of Civil Procedure 1311.1, which applies to appeals from courthouse arbitration proceedings. Under the new Rule 1311.1, the Pennsylvania Supreme Court increased the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration award.

Under the old rule, that limit was set at $25,000. Under the new rule, the maximum limit has been changed to “an amount equal to the jurisdictional limit for compulsory arbitration of the judicial district in which the action was filed.” In most counties in Pennsylvania, the arbitration jurisdictional limit is $50,000. As such, the Pennsylvania Supreme Court essentially doubled the amount of money injured parties can potentially recover at trials following an appeal from an arbitration.

Recent Decisions That Limited Certain Defenses

In recent years, in addition to expanding avenues of recoveries for injured parties, the Pennsylvania Supreme Court has also benefited plaintiffs by limiting the scope of a wide variety of defenses in civil litigation matters.

In the case of Graham v. Check, 243 A.3d 153 (Pa. 2020), the plaintiffs were successful in convincing the Pennsylvania Supreme Court to limit the application of the sudden emergency doctrine. With this decision by the Pennsylvania Supreme Court, it is likely that the application of the sudden emergency doctrine will no longer be automatically applied in dart-out pedestrian cases, particularly where a plaintiff darts out within a crosswalk.

The Pennsylvania Supreme Court has also limited venue defenses by liberalizing the rules governing where a plaintiff may file their lawsuit.

In another the limitation of venue defenses, the Pennsylvania Supreme Court, in the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021), the Pennsylvania Supreme Court ruled that, given that the internet is available essentially everywhere, an internet defamation case may be filed anywhere in Pennsylvania, thereby allowing the plaintiffs to file such claims in the most liberal courts in Pennsylvania if they deem that appropriate.

Back in 2022, the Pennsylvania Supreme Court undid a 20-year-old Rule of Civil Procedure and approved plaintiffs-favorable amendments to the medical malpractice venue rules. Under the new medical malpractice litigation venue rules, plaintiffs now have wider options in terms of where they can file their medical malpractice lawsuits.

Hints at Moderation

In three recent decisions, all of which were expected to result in plaintiffs-favorable rulings, the Pennsylvania Supreme Court somewhat surprisingly went the other way.

As noted above, in the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Pennsylvania Supreme Court limited its previous decision in Gallagher v. GEICO on the household exclusion to the facts of that case. The court in Mione instead held that the household exclusion could still be enforced under limited circumstances.

Another example of a recent Pennsylvania Supreme Court decision that seemed to signal moderation was the case of first impression of Franks v. State Farm Mutual Automobile Insurance, ___ A.3d ___ No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.). In Franks, the court addressed issues of the stacking of UIM coverage in the automobile insurance personal injury actions. The court ruled that an insurance company is not required to secure another written waiver of stacked coverage from an insured in certain circumstances and rejected the plaintiff’s argument to the contrary.

Also, in a 2024 decision that was surprising to some, the Pennsylvania Supreme Court upheld the continuing validity of the regular use exclusion in the case of Rush v. Erie Insurance Exchange, ___ A.3d ___, 77 MAP 2023 (Pa. 2024).

Not So Fast

Despite hints at moderation, other recent cases again confirm that the overall orientation of the Pennsylvania Supreme Court is to favor plaintiff’s causes in most civil litigation matters.

This is confirmed, in part, by the court’s decision in the case of Brown v. City of Oil City, 294 A.3d 413 (Pa. 2023). With this decision, the Pennsylvania Supreme Court greatly expanded the ability of plaintiffs to bring lawsuits against construction contractors for personal injuries sustained at a construction site. The court in Brown allowed such claims to be brought even if the contractor had completed his or her work on the property years before.

Also, in its recent decision in the case of Steets v. Celebration Fireworks (Workers' Compensation Appeals Board), No. 3 MAP 2024 (Pa. May 30, 2025), the Pennsylvania Supreme Court overturned decades of precedent regarding whether specific loss benefits are payable after an employee’s death from causes related to a work injury. In this decision, the Supreme Court created new law and cleared the way for the estates of those individuals who died from work-related injuries to collect specific loss benefits.

Then, just last month, in the case of Jakmian v. City of Philadelphia, No. 266 EAL 2024 (Pa. June 11, 2025), the Pennsylvania Supreme Court denied an allowance of an appeal in a civil litigation matter, but Justice Kevin Dougherty issued a concurring opinion that invited plaintiffs to attempt to bring issues regarding the analysis of an exception to sovereign immunity back up the appellate ladder again so that the court could properly review the law on this topic.

In Jakmian, the plaintiff suffered injuries on a Philadelphia street after the front tire of her bicycle became stuck in a SEPTA trolley track that had been out of use for decades. The claims presented raised issues related to applicability of the real estate exception to the Sovereign Immunity Act.

In his concurring opinion, Dougherty seemed to signal that, if the issue were properly before the court, he would have ruled in a fashion that favored the injured party. However, he felt “constrained to agree that an allowance of an appeal is not warranted here.” Yet, Dougherty also wrote “nevertheless, I note my future willingness to explore the issues implicated herein if they arise in a more appropriate case.”

In the end, a review of recent jurisprudence in Pennsylvania confirms that the Pennsylvania Supreme Court is not only routinely ruling in favor of plaintiff’s causes but also seemingly inviting the plaintiffs bar to bring more issues up the appellate ladder for the court to consider. Now’s the time for the plaintiffs bar to get whatever important issues they can up to the Supreme Court as often as they can so as to make “good” law. Now is also the time for the defense bar and the carriers to resolve as many of those cases before they reach the Pennsylvania Supreme Court so as to avoid the creation of “bad” law.

Daniel E. Cummins is the managing attorney at Cummins Law where he focuses his practice on motor vehicle and trucking liability cases, products liability matters, and premises liability cases. He also serves as a mediator for the Federal Middle District Court and for Cummins Mediation. He is additionally the sole creator and writer of the Tort Talk Blog at www.TortTalkcom.

Reprinted with permission from the July 24, 2025 edition of the "The Pennsylvania Law Weekly © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Is There Liability Against PennDOT if a Tree Falls on a Passing Motorist?

In the case of Schmidt v. Pennsylvania Dept. of Transp., No. 33 C.D. 2023 (Pa. Cmwlth. Oct. 11, 2024 Jubelirer, P.J., Dumas, J., and Wolf, J.) (Op. by Dumas, J.), the Pennsylvania Commonwealth Court reversed a trial court Order and remanded the case with instructions that summary judgment be entered in favor of PennDOT based upon sovereign immunity. 

According to the Opinion, the subject accident involved a Plaintiff who sustained fatal injuries after the branch of a large tree, which was overhanging the roadway, fell and crushed his vehicle as the Plaintiff drove by.

According to the Opinion, the tree was planted on property owned by the Southeastern Pennsylvania Transportation Authority. The court noted that, although the branches of the tree extended over the road and PennDOT’s right-of-way, the base of the tree was located outside of PennDOT’s right-of-way.

Accordingly, the appellate court found that PennDOT was entitled to sovereign immunity under claims against it where the tree did not derive, originate from, or have as its source any PennDOT real estate.

The court held that the case therefore did not fall under the real estate exception to the sovereign immunity allowed for under the Sovereign Immunity Act, 42 Pa. C.S.A. §8501-8564.

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


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (Nov. 5, 2024).

Source of image:  Photo by Efrem Efre on www.pexels.com.

Pennsylvania Supreme Court To Review the Continuing Validity of Statutory Cap On Damages Allowed Against State Agencies

The Pennsylvania Supreme Court has agreed to review a challenge by a Plaintiff to the $250,0000 statutory cap on damages allowed against state agencies.

The Court will hear the appeal in the case of Freilich v. SEPTA.  Here is a LINK to previous Tort Talk posts covering the Freilich case.

The lower courts in this case have rejected the challenge to the statutory caps but have expressed concerns about the fairness of the cap.

Source:  "Pa. High Court Agrees to Take Up Challenge to State Damages Cap" by Aleeza Furman of The Legal Intelligencer  (March 11, 2024).

Appellate Court Addresses Liability Issues Relative to Placement of Bus Stop In Pedestrian Injury Case

Bus Stop

In the case of Essington v. Monroe Co. Trans. Auth., No. 1081 C.D. 2022 (Pa. Cmwlth. July 11, 2023 McCullough, J., Dumas, J., and Wallace, J.) (Op. by McCullough, J.), the Commonwealth Court of Pennsylvania affirmed in part and reversed in part and remanded in part a trial court decision regarding the liability of certain Defendants in a case where a pedestrian was struck by a motorist after exiting from a bus at a bus stop near a residential development.

The appellate court held that, although the trial court properly ruled that PennDOT and the residential development had no control over safety conditions of a local transit authority’s bus stop, the trial court erred in granting the local transit authority summary judgment where there were allegations that the transit authority’s driver’s use of high beams allegedly blinded the other driver who struck the decedent.

The appellate court otherwise affirmed the entry of summary judgment in favor of PennDOT and the residential homeowner’s association.

The trial court had ruled that PennDOT was not liable because the real estate exception did not apply to policies or activities such as designing state roads.

The trial court had ruled that the homeowner’s association was not liable because it had no control over the bus stops and owed no duty to permit the transit authority buses to enter the development.

Anyone wishing to review a copy of this decision may click this LINK.  To view the Court's September 23, 2023 Order changing its July 11, 2023 Opinion on the case from a Memorandum Opinion to an Opinion that shall be reported, please click HERE.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 19, 2023).

Commonwealth Court Rejects Challenge to Pennsylvania's Liability Damages Caps for State Agencies

In the case of Freilich v. SEPTA, No. 327 C.D. 2022 (Pa. Cmwlth. July 6, 2023 Wojcik, J., Wallace, J., Leadbetter, S.J.) (Mem. Op. by Wojcik, J.) [Opinion not reported], The Pennsylvania Commonwealth Court rejected a Plaintiff’s challenge to Pennsylvania’s liability caps for state agencies.

In so ruling, the appellate court upheld a trial court Order reducing a $7 million stipulated jury verdict entered by a jury against SEPTA to the $250,000.00 liability cap required by Pennsylvania law.

In its Opinion, the Commonwealth Court held that it was bound by Pennsylvania Supreme Court precedent and thereby compelled to affirm the trial court’s Order molding the verdict to conform with the statutory caps under 42 Pa.C.S.A. §8528(b).

In an article on the issue, it was indicated that plaintiffs’ attorney plans to appeal the case up to the Pennsylvania Supreme Court.

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


Source: Article - “Appellate Judges Reject Challenge to Pennsylvania State Damages Cap” by Aleeza Furman. Pennsylvania Law Weekly (July 6, 2023).

Article: Pennsylvania Supreme Court Shows Teasing Signs of Moderation

This article of mine was recently published in the Pennsylvania Law Weekly and is republished here with permission.

Pennsylvania Supreme Court Shows Teasing Signs of Moderation


June 01, 2023


By Daniel E. Cummins | June 01, 2023 at 11:34 AM

Over the past five years or so, the Pennsylvania Supreme Court has been issuing one decision after another, along with civil litigation rule changes, most, if not all of which, have greatly favored personal injury plaintiffs’ causes.

With these plaintiff-friendly decisions and rule changes handed down by the Supreme Court, there appeared to be no end in sight to the ability of the plaintiffs bar to continue to score drastic changes in the law in favor of efforts to secure compensation for injured parties.

However, as noted below, a couple of recent decisions by the Pennsylvania Supreme Court have tempered this sense of futility for some.

The Pendulum Shift in Favor of Plaintiffs

Over the past several years, the great number of plaintiff-friendly decisions and rule changes issued by the Supreme Court has caused the pendulum of change in Pennsylvania civil litigation precedent to swing so far in favor of plaintiffs that it seems that celebrating plaintiffs attorneys should be ducking so as not to get hit by that pendulum as the good times roll on.

One result of these plaintiff-friendly decisions by the Supreme Court has been that injured parties have realized even wider avenues to secure money in civil litigation matters. Another result is that plaintiffs have been emboldened in their settlement postures with the confidence that, under the current climate, if any legal issues in their case have to go up the appellate ladder to the Supreme Court, the plaintiff will more than likely prevail.

In terms of plaintiff-favorable rule changes in personal injury civil litigation matters, the Supreme Court has expanded the Rules of Civil Procedure relative to the proper venue for medical malpractice actions. This, as expected, has led to an increase of the filings of such cases in Philadelphia County as compared to before.

Another plaintiff-friendly change in the venue rules was handed down by the Supreme Court by way of its decision in the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021). In the Fox decision, the plaintiff was successful in persuading the Supreme Court to rule that internet-based defamation claims can be filed in any county where the defamatory statements were viewed and understood as defamatory.

In another rule change, the Pennsylvania Supreme Court upped the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration proceeding.

Other recent plaintiff-friendly decisions by the Supreme Court have been described as resulting in “seismic” changes in decades-long Pennsylvania precedent. For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Supreme Court to overrule long-standing precedent that limited the liability exposure of PennDOT in personal injury matters. In Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Supreme Court again assisted the plaintiffs bar in generating additional potential lawsuits by overturning 30 years of precedent that had previously upheld governmental immunity in personal injury matters in a more expansive way.

Also, in almost gleeful language in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019), the Supreme Court overruled the 20 years of precedent that had previously and repeatedly upheld the validity of the household exclusion in the UIM context of personal injury automobile accident matter. As noted below, in a more recent decision on the validity of the household exclusion, that plaintiff-friendly ruling in Gallagher was found to be so inappropriately expansive in its effort to eradicate that exclusion across the board that even the high court acknowledged that it had to draw back on Gallagher a bit.

A Return to Moderation?

In two recent decisions, both of which were expected to result in plaintiff-favorable rulings, the Supreme Court surprised some with opinions that were not plaintiff-friendly.

In the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Supreme Court, without acknowledging that it had attempted to eradicate the household exclusion in UIM cases across the board in the Gallagher v. Geico case, rejected the argument by the plaintiff that the Gallagher decision should be read as having served to invalidate the exclusion in all cases in Pennsylvania. In Mione, the court instead wrote, “We reiterate today that the holding in Gallagher was based upon the unique facts before us in that case, and that the decision there should be construed narrowly.”

The court instead confirmed in the Mione decision that the Supreme Court “continues to reject the view that household vehicle exclusions are ipso facto unenforceable.”

This decision came as a welcome surprise to some and a hopeful harbinger that the court was stepping away from its penchant for decisions that resulted in seismic, plaintiff-friendly changes to long-standing precedent in Pennsylvania law.

In the other example of a recent Supreme Court decision that seemed to indicate that the court may be signaling a return to more balanced application of long-standing law, the court addressed issues of the stacking of UIM coverage in automobile insurance personal injury actions.

In the case of first impression of Franks v. State Farm Mutual Automobile Insurance, No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.), the court ruled that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived through a waiver form executed by the insured, did not require the insurance carrier to secure another written waiver of stacked coverage from the insured under Section 1738(c).

The basic rationale of the court was that Section 1738 requires insurance companies to secure a new written waiver of UIM coverage whenever an insurance policy is purchased. Here, there was a change made to an existing policy. No new policy was purchased. As such, the court found there was no requirement under a plain application of the applicable law for the insurance company to secure a new waiver form.

Might the above decisions by the plaintiff-friendly Pennsylvania Supreme Court be a signal that the pendulum had finally reached its apex and was going to start its descent back toward moderation relative to issues in personal injury civil litigation matters?

Not So Fast

On the heels of the above recent decisions indicating a possible step back toward at least moderate decisions in personal injury civil litigation matters, the Pennsylvania Supreme Court then recently issued yet another very plaintiff-friendly decision in the case of Brown v. City of Oil City, No. 6 WAP 2022 (Pa. May 16, 2023) (Op. by Todd C.J.)(Mundy, J., Dissenting). With this decision, the Supreme Court greatly expanded the ability of plaintiffs to bring lawsuits against construction contractors for personal injuries sustained on a property by allowing such claims to be brought even if the contractor had completed his work on the property years before.

In Brown, the plaintiff allegedly tripped and fell on deteriorated sections of concrete steps outside of a library, which steps had been replaced by a contractor years before the incident. The plaintiff sued the owner of the library as well as the contractors who performed work on the exterior stairs to the library.

The case went up the appellate ladder and the Pennsylvania Supreme Court addressed the scope of Section 385 of the Restatement (Second) of Torts, which is titled “Persons Creating Artificial Conditions on Land on Behalf of Possessor, Physical Harm Caused After Work Has Been Accepted.”

The issue before the court was whether Section 385 imposed liability upon a contractor to a plaintiff whenever the contractor, during the course of his or her work for a possessor of land, creates a dangerous condition on the land that injures the plaintiff, even though, at the time of the injury, the contractor was no longer in possession of the land, and the possessor of the land was aware of the dangerous condition.

After reviewing the law, the Supreme Court concluded that a contractor may indeed be subjected to liability to plaintiffs under Section 385 under such circumstances. Obviously, this decision is another one in which the Supreme Court once again increased the number of parties plaintiffs may sue and widened the scope of possible monetary recoveries for injured-party plaintiffs.

So You’re Saying There’s a Chance?

One benefit of the two recent moderate decisions issued by the Pennsylvania Supreme Court in the Mione case and the Franks case is that those decisions give rise to some uncertainty, however minimal, as to which way the Pennsylvania Supreme Court may rule on a personal injury civil litigation issue before it. While it appears that the Supreme Court will likely remain plaintiff-friendly for the foreseeable future, the two recent decisions in which the defense argument prevailed serves to restore some faith in a belief that a plaintiff-favorable decision on any given issue before the court may not be automatic.

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.

Alleged Negligence Regarding Pedestrian Crossing Sign Found to Fall Within Real Estate Exception to Sovereign Immunity

In the case of Estate of Patterson v. Rockefeller Group Int. Inc., No. 2022-CV-0060 (C.P. Leh. Co. Aug. 22, 2022 Johnson, P.J.), the court found that a Plaintiff’s wrongful death claim against PennDOT was not barred by the sovereign immunity doctrine where the Plaintiff alleged that an artificial condition in the form of an allegedly non-functioning pedestrian crossing sign along a highway that was allegedly under the control of PennDOT was the cause of the Plaintiff’s injuries.

The Preliminary Objections filed by PennDOT in his case were denied in part and sustained in part.

The Plaintiff alleged that the decedent was struck and killed by a motor vehicle while crossing an intersection on a street undergoing a road-widening project. The Plaintiff alleged that the decedent was crossing the road in an area that PennDOT was responsible for and in which the pedestrian crossing sign had inoperable flashing yellow lights that were covered.

In response to PennDOT’s efforts to have the case dismissed under the Sovereign Immunity Act, the court found that the Plaintiff’s allegations of a breach of the Defendant’s duty to properly maintain a pedestrian crossing sign was an action in negligence that satisfied the first prong for defeating the Defendant’s assertion of sovereign immunity, i.e., the statement of a valid cause of action for negligence.

The court found that the second prong under the Sovereign Immunity Act required the Plaintiff to establish that the negligent act complained of fell within any of ten (10) exceptions to sovereign immunity.

Among its claims, the Plaintiff alleged that the Defendant PennDOT installed an item as part of its real estate, namely a pedestrian crossing sign adjacent to a public highway, in a manner that created a hazardous condition.

The court found that this allegation was sufficient to invoke the real estate exception to sovereign immunity. As such, the court found that the Plaintiff had stated a valid cause of action which was not subject to dismissal.

PennDOT also asserted that the Plaintiff’s claims of recklessness and willful indifference should be stricken because the Sovereign Immunity Act only allowed claims for negligence in certain circumstances.

The court found that the Defendant was correct in arguing that the Plaintiff’s claims are recklessness and willful indifference were legally invalid. Under the express terms the Sovereign Immunity Act, sovereign immunity is only waived in actions against the Commonwealth for damages arising out of negligent acts.

The court also reviewed the remainder of the Plaintiff’s allegations which allege various failures to act on the part of PennDOT. The court found that those claims were barred as it was well-established that claims against the Commonwealth based upon a failure to act are barred by the sovereign immunity doctrine.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 11, 2023).

Source of image:  Photo by Lukas Hartman on www.pexels.com.

Real Estate Exception to Immunity to PennDOT Applied in Case Where Tree Fell on Passing Motorist

In the case of Schmidt v. Penn. Dep’t. of Transp., No. 2019-CV-12057 (C.P. Montg. Co. Feb. 27, 2023 Saltz, J.), the court denied a Motion to Dismiss filed by PennDOT in a case involving a tree that fell upon a passing vehicle on a Commonwealth owned road.

PennDOT filed a Motion to Dismiss asserting sovereign immunity.

The court reviewed the real estate exception to sovereign immunity cases involving fallen trees.

The court noted that, while the Commonwealth of Pennsylvania is generally immune from suit, the Pennsylvania legislature had waived that immunity in certain limited instances as outlined in 42 Pa. C.S.A. §8522(b).  The exception applicable in this case applied to alleged dangerous conditions on the Commonwealth’s real estate, highways, and sidewalks.

In this matter, the court found that the applicability of the real estate exception depending not on the characteristics of the portion of the tree that constituted the dangerous condition, but on the location of that portion of the tree with respect to the Commonwealth’s property.

The court determined that the Plaintiff had properly asserted that the tree fell within the Defendant’s right-of-way.  As such, the court rejected PennDOT’s argument that the exception did not apply because only a portion of the tree fell within that right-of-way.

The court additionally noted that the Plaintiff’s evidence presented to date, which included expert testimony, implicated the real estate exception to the sovereign immunity afforded to the Commonwealth of Pennsylvania in this case.

As such, the Defendant’s Motion for Summary Judgment was denied.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 21, 2023).

Court Rules That PennDOT May Not Release Medical Records Relied Upon By PennDOT to Decide Whether to Authorize an Indiviual to Be Licensed to Drive

In the case of Puricelli v. Com., Dept. of Transp., No. 42 M.D. 2022 (Pa. Cmwlth. Jan. 4, 2023) (Op. by Wallace, J.), the Commonwealth Court sustained Preliminary Objections filed by PennDOT in opposition to a matter involving a request by a Plaintiff injured in a motor vehicle accident case for the release of medical records PennDOT had obtained as part of the decision-making process of determining whether or not the Defendant driver should be authorized to be licensed in Pennsylvania to operate a motor vehicle.

According to the Opinion, the Defendant driver had secured an injury to his eye and the Plaintiff was attempting to determine if PennDOT had authorized the Defendant driver to be operating his vehicle at the time of the accident.

The court noted that, by statute, information received by the Department of Transportation for purposes of determining the competency of automobile drivers “shall be confidential and shall be used solely for the purpose of determining the qualifications of any person to drive a motor vehicle.” The statute additionally sets forth that such information cannot be “used as evidence in any civil or criminal trial.”

As such, the Commonwealth court ruled that the Plaintiff’s automobile accident victim was not permitted to obtain the medical records from PennDOT even though the Defendant driver had consented to the production of that information. The court noted that consent is not an exception to statutory mandates of confidentiality.

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

ARTICLE: Pa. Supreme Court Decisions and Rule Changes Continue to Favor Plaintiff's Causes

This article of mine was recently published in the Pennsylvania Law Weekly on January 19, 2023 and is republished here with permission.

Pa. Supreme Court Decisions and Rule Changes Continue to Favor Plaintiff's Causes


By Daniel E. Cummins | January 19, 2023


For over the past five years or so, the plaintiffs bar has realized one important victory after another at the Pennsylvania Supreme Court level in terms of plaintiffs-friendly precedent and rule changes.

Like a well-oiled machine, after putting forth a sustained and organized effort to help to secure their favored candidates an election to the Pennsylvania Supreme Court, the plaintiffs bar has followed up by litigating issues important to plaintiffs up the appellate ladder to what has become the promised land for them in terms of repeated victories on issues important to injured parties.

With the pendulum of judicial thought at the Pennsylvania Supreme Court level having swung so far in the plaintiffs favor, it appears that the sky’s the limit for the plaintiffs bar to continue to alter the legal landscape in Pennsylvania for the benefit of injured parties for the foreseeable future, all of which is much to the dismay and chagrin of members of the defense bar.

Repeatedly Overturning Decades-Long Precedent

While the defense bar has realized some recent victories at the Pennsylvania Supreme Court level in terms of the overturning the scope of the long-arm jurisdiction statute, the limitation of discovery of peer review records in medical malpractice cases, and the limitation of attorney malpractice cases by the court’s adoption of the “occurrence” rule of liability, those victories have been blips on the radar as compared to the wealth of victories secured by plaintiffs. With this Pennsylvania Supreme Court and its judicial perspective, the plaintiffs bar has been repeatedly successful in convincing the court to overturn decades-long precedent that previously favored defendants.

For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Pennsylvania Supreme Court to overrule the long-followed and then 12-year-old Pennsylvania Commonwealth Court decision in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa.Cmwlth. 2006), to hold that PennDOT should only be immune from suit in guide rail claims in limited circumstances. Under the prior Fagan decision there was essentially no liability on any claims against PennDOT relative to claims of negligence with respect to guide rails in state highway motor vehicle accident matters.

Ever since the Pennsylvania Supreme Court decision in the Cagey case, when PennDOT has installed a guide rail, sovereign immunity is waived if it is established by the plaintiff that the agency’s negligent installation and design created a dangerous condition that caused or contributed to the happening of a motor vehicle accident. This decision by the Pennsylvania Supreme Court kicked the door wide open for plaintiffs to again sue PennDOT in personal injury matters. While this decision is favorable for plaintiffs, the concern is that it will also continue to contribute to the ongoing increases of taxes and toll rates in order to pay for these additional personal injury lawsuits and awards against PennDOT.

In another reversal from a few years ago in the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Pennsylvania Supreme Court again assisted the plaintiffs bar in generating additional potential lawsuits by overturning 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1).

In Balentine, the plaintiff’s decedent was working as a contractor on a water system project just off to the side of a roadway. A government inspector pulled up to the scene and parked his car and left it running. A third car struck the parked, stationary government inspector’s car and propelled that stationary vehicle into the decedent, resulting in fatal injuries.

The majority of the Pennsylvania Supreme Court reviewed the law behind the Tort Claims Act and held that movement of a vehicle, whether voluntary or involuntary, is not required by the statutory language of the vehicle liability exception in order for that exception to apply. With this ruling in favor of the plaintiff, the Pennsylvania Supreme Court eradicated 30 years of precedent going the other way and thereby exposed governmental agencies to additional litigation and liability, the costs of which will likely be passed on to citizens in the form of higher taxes.

As another example, in 2019, the plaintiffs bar finally realized success at the Pennsylvania Supreme Court level in their sustained efforts to overturn the household exclusion found in automobile insurance policies. After 20 years of failed attempts to secure a decision finding that the exclusion was invalid and therefore unenforceable, the plaintiffs bar finally prevailed in convincing this Pennsylvania Supreme Court to issue a stunning decision to overturn that long-standing precedent in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019).

In an opinion with language that was seemingly hostile toward the insurance industry, the Pennsylvania Supreme Court did not limit its decision to the facts of the case before it, but rather, in a plaintiffs-friendly fashion attempted to set up its decision in Gallagher v. GEICO as entirely eradicating the household exclusion across the board.

While federal court judges addressing the validity of the household exclusion ever since Gallagher have largely followed the Pennsylvania Supreme Court’s mandate in favor of plaintiffs in this regard, some state court appellate and trial judges have limited the Gallagher v. GEICO decision to its facts and have noted that the household exclusion still remains valid and enforceable in certain circumstances.

Yet, the Pennsylvania Supreme Court has since reiterated its plaintiffs-friendly stance in the case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021), by reaffirming its previous decision in Gallagher v. GEICO and again ruling that plaintiffs need not worry about the household exclusion provision as it is invalid and, therefore, unenforceable. Whether other state and federal courts will follow this effort at the complete eradication of the exclusion or will, again, limit the Pennsylvania Supreme Court’s decision(s) to its facts, remains to be seen.

Sudden Emergency Doctrine

The plaintiffs bar rolled on to other areas of the law with additional successes at the Supreme Court level. With the case of Graham v. Check, 243 A.3d 153 (Pa. 2020), the plaintiffs convinced the Pennsylvania Supreme Court to somewhat limit the application of the sudden emergency rule in a manner that favors plaintiffs.

Under the long-standing sudden emergency doctrine, a defendant motorist is required to use an honest judgment in response to being faced with a sudden emergency on the roadway, such as a pedestrian negligently darting out from an area of safety and running out into the path of an oncoming vehicle without looking.

In Graham, which involved a pedestrian who was struck by the defendant motorist while the pedestrian was within a crosswalk, the Pennsylvania Supreme Court found that the trial court in this case erred in instructing the jury on the sudden emergency doctrine. The court stated that the evidence in the case failed to lay a foundation for the provision of that instruction to the jury.

In light of this plaintiffs-favorable decision by the Pennsylvania Supreme Court, it is likely that the application of the sudden emergency doctrine will no longer be automatically applied in dart-out pedestrian cases, particularly in the case of a pedestrian who was within a crosswalk at the time of an incident. As such, with this decision, the plaintiffs bar has been successful in securing a limitation of the application of this defense in motor vehicle accident matters.

Forum Shopping by Plaintiffs Permitted

In addition to limiting the defenses of tortfeasors and expanding the types of claims plaintiffs may seek a monetary recovery for, the plaintiffs bar has also been successful in convincing the Pennsylvania Supreme Court to repeatedly expand opportunities for plaintiffs to shop for the best forum to obtain the most liberal recovery possible.

In the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021), the plaintiffs bar was successful in litigating the issue of proper venue in internet defamation cases and convinced the Pennsylvania Supreme Court to rule that internet-based defamation claims can be filed anywhere that the defamatory statements were viewed and understood as defamatory.

Since the internet is anywhere and everywhere, it appears that, under this ruling by the Pennsylvania Supreme Court, an internet defamation case may be filed anywhere in Pennsylvania, thereby allowing the plaintiffs to file in the most liberal courts in Pennsylvania, if desired.

As noted below, the Pennsylvania Supreme Court also supported the expansion of the plaintiffs’ ability to engage in forum shopping sprees in medical malpractice cases.

Plaintiffs-Friendly Rule Changes

In addition to securing the above-referenced plaintiffs-friendly decision on venue from the Pennsylvania Supreme Court, the plaintiffs bar has also had great success in convincing the Court to issue changes to long-standing Pennsylvania Rules of Civil Procedure on venue.

Under a Pennsylvania Supreme Court Order recently issued on Aug. 25, 2022, the court approved plaintiffs-favorable amendments to the medical malpractice venue rules. Under the new medical malpractice litigation venue rules, that went into effect on Jan. 1, plaintiffs will now be able to go on potentially lucrative forum shopping trips in terms of where they file their medical malpractice lawsuits.

These amendments undo a 20 year old Rule of Civil Procedure. Under the old rule, plaintiffs were required in medical malpractice cases to sue their medical providers in the counties where the treatment was completed.

Under the new rules, plaintiffs will be allowed to sue providers in any of the counties where the providers regularly do business or have significant contacts. With medical systems advertising on television and on the internet all across the commonwealth of Pennsylvania and also having satellite offices in many areas, the Pennsylvania Supreme Court has opened the door for Plaintiffs to choose to file their medical malpractice claims in courts that are considered to have the most liberal, plaintiffs-friendly jurors.

Commentators have noted a concern that this Rule change may result in higher insurance premiums for medical providers, which may lead or force some doctors to leave the commonwealth to practice medicine elsewhere. There is also a concern that medical provider defendants who may not be responsible will be added to lawsuits for the sole purpose of triggering jurisdiction in a liberal venue. Another concern is that the Philadelphia County and Allegheny County Courts of Common Pleas will now again face a deluge of medical malpractice cases involving treatment that was performed elsewhere.

The Supreme Court of Pennsylvania has also recently approved other plaintiffs-friendly changes to the Pennsylvania Rules of Civil Procedure. In an order that went into effect on July 1, 2022, the Pennsylvania Supreme Court put into place a new rule amending Pennsylvania Rule of Civil Procedure 1311.1, which applies to appeals from courthouse arbitration proceedings.

Under the new Rule 1311.1, the Pennsylvania Supreme Court upped the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration award.

Under the old rule, that limit was set at $25,000. Under the new rule, the maximum limit has been changed to “an amount equal to the jurisdictional limit for compulsory arbitration of the judicial district in which the action was filed.” While different judicial districts have differing jurisdictional limits for arbitration, most counties have their limit is capped at a maximum $50,000 under Section 7361 of the Judicial Code.

The Sky’s the Limit

With this Pennsylvania Supreme Court, it appears that the sky’s the limit for the plaintiffs bar to try to effectuate additional changes in Pennsylvania law for the benefit of plaintiffs.

What other decades long-standing precedent and rules that may be changed by the Pennsylvania Supreme Court for the benefit of plaintiffs remains to be seen. The plaintiffs bar has raised challenges to the Fair Share Act in terms of whether it should be applied to innocent plaintiffs who bear no contributory negligence with regards to the happening of an accident. The plaintiffs bar also has their sights set on overturning the regular use exclusion found in motor vehicle policies and that issue is currently pending before the Pennsylvania Supreme Court.

Relative to the current makeup and judicial perspective of the Pennsylvania Supreme Court, there certainly has never been a better time to be a plaintiff or a plaintiffs lawyer in Pennsylvania. Only time will tell what additional expansions of the avenues of recovery for injured parties and what limitations on defenses the plaintiffs bar will be able to accomplish and realize at the Supreme Court level while the pendulum remains so far over on their side of the bar.


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.

Sovereign Immunity Supports Summary Judgment In Favor Of PennDOT Relative to Claims Regarding Placement of a Bus Stop

In the case of Essington v. Monroe County Transit Auth., No. 5117-CV-2020 (C.P. Monroe Co. Aug. 15, 2022 Williamson, J.), the court granted the Motion for Summary Judgment filed by the Defendant, PennDOT, in a case involving a pedestrian Plaintiff who had exited a bus and was struck while crossing the roadway under nighttime conditions.

The Plaintiff alleged that PennDOT was negligent by allowing a dangerous condition to occur on its property, i.e., the roadway. More specifically, the Plaintiff alleged that PennDOT was negligent in the planning, designing, controlling, locating, and designation of a bus stop on a state road in a manner that created dangerous conditions.

The Plaintiff also faulted PennDOT for failing to erect signs, lights, guardrails, bus shelters, crosswalks, or other features to protect disembarking bus passengers.

In granting the Motion for Summary Judgment, the court relied upon the Sovereign Immunity Act under 42 Pa. C.S.A. §8522(b). 

The court found that none of the exceptions under that Act were applicable to the case presented. The court emphasized that, in order for liability to attach to PennDOT, a dangerous condition must derive, originate, or have its source that the Commonwealth realty. This is also known as the real estate exception to Sovereign Immunity.

Judge David J. Williamson noted that the Plaintiff’s allegations did not implicate any alleged defects on the land itself. The court noted that, had PennDOT installed the items noted by the Plaintiff, and those items were defective in some manner, then PennDOT could be held liable. However, under Pennsylvania law, the failure to install the items noted by the Plaintiff did not implicate an exception to the immunity afforded the governmental agency under Pennsylvania law.

The court additionally noted that where the Co-Defendant, Monroe County Transit Authority, chose to have a bus stop was not a material defect of the real estate itself and was not a condition created by PennDOT. 

Rather, the Co-Defendant, Monroe County Transit Authority, was the entity that chose where to have their bus stops. The court noted that the Plaintiff did not produce any evidence that PennDOT played any part in the decision to allow the bus stop in the area or any evidence that the business was a dangerous condition of the real estate itself.

The court also rejected the Plaintiff’s argument that PennDOT was negligent for allowing the bus stop to exist and in failing to take steps to inspect, discover, or correct any defects, or to ensure that the real estate was safe for its regular and intended use as a bus stop. The court ruled that the real property exception to the Sovereign Immunity Act only applies to a dangerous condition of Commonwealth real estate and not to negligent policies or activities regarding real estate. The court noted that a failure to inspect has been previously ruled in Pennsylvania to be a policy or an activity which is not within the real estate exception to the immunity statute.

The court also noted that the intended use of the road was as a roadway for vehicular traffic and not for the placement of bus stops. As such, any allegations by the Plaintiff regarding a lack of lighting, narrow shoulders, or safe pedestrian accommodations such as crosswalks, sidewalks, or pedestrian crossing signs, were found not to relate to the design of the roadway itself or to its use as a roadway. As such, those allegations did not serve to defeat PennDOT’s Motion for Summary Judgment. In sum, the court found that the Plaintiff’s expert had not offered any opinion that the roadway itself as designed, caused the accident.

For all of these reasons, and others, the court granted summary judgment in favor of PennDOT.

Anyone wishing to review this decision may click this LINK    


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 3, 2022).

Motorcycle Accident Case Against PennDOT Regarding Pothole Allowed to Proceed

In the case of Texeira v. Commonwealth Dept. of Transp., No. 997 C.D. 2021 (Pa. Cmwlth. Aug. 30, 2022 McCullough, J.), the Commonwealth Court found that a trial court erred in finding that PennDOT has sovereign immunity in the Plaintiff’s negligence lawsuit over his motorcycle accident that was allegedly caused by a pothole.

The appellate court found that the trial court erred in granting summary judgment because the Plaintiff’s complaints to PennDOT about road conditions were not in writing and there were material issues of fact as to whether the customer service records were sufficiently to provide notice to PennDOT.

There were also issues of fact as to whether or not the potholes were patched prior to the accident.

The case was reversed and remanded to the trial court for further proceedings.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 27, 2022).

Source of image:  Photo by Ian Taylor on www.pexels.com.

Commonwealth Court Rules, In Case First Impression, That a Private Sector Defendant Can Rely Upon Venue Statutory Argument Typically Reserved to PENNDOT

In the case of first impression of Kim v. Com. of Pa., Dept. of Transp., No. 7 CD 2020 (Pa. Cmwlth. Feb. 9, 2022 Wojcik, J., Cannon, J., and Ceisler, J.) (Op. by Wojcik, J.), the Commonwealth Court held that private sector Defendants in a personal injury suit may seek a new venue under a section of the Sovereign Immunity Act despite the State Agency Co-Defendant’s objections to the requested transfer of venue.

According to the Opinion, the Plaintiffs were injured in a single car accident that occurred in Delaware County. 

In addition to suing PennDOT, which maintained the area of the road in question, the Plaintiff also sued private contractors who worked on the construction of the road as well as the Delaware County resident who owned the property where the accident occurred. The Plaintiffs filed suit in Philadelphia.

According to the Opinion, the Pennsylvania Department of Transportation, as a Defendant in this case, had earlier waived its right to venue protections under the law as part of that Defendant’s settlement with the Plaintiffs. 

 As a result of that agreement, PennDOT even joined the Plaintiffs in arguing against the venue Preliminary Objections filed by the Defendants and asserted that the private sector Defendants could not utilize §8523(a) of the Judicial Code in support of their argument.

According to the Opinion, §8523(a) of the Judicial Code establishes that state entities may only be sued in the county where either the incident at issue occurred or where that state agency entity is located.

The issue in this case was whether, in a suit against both state and private Defendants, the right to object to venue under that section only rested with the state entity.

In a decision of first impression, the Commonwealth Court ruled that, under the facts and circumstances of this case, a private sector Defendant could also rely upon §8523(a) of the Judicial Code to challenge the venue issue as well.

The court rejected the argument by the Plaintiffs and PennDOT that, under the Pennsylvania Rules of Civil Procedure 1006, which governs non-state venue objections, the private Defendants could not raise objections to venue. It was otherwise indicated in the Opinion that one of the Defendants later joined in the suit conducted business within Philadelphia County.

The Commonwealth Court noted that, although the private Defendants could not have raised objections to venue under Rule 1006, the court found that they could still raise objections under §8523(a).  The Commonwealth Court emphasized that there was no language under Section 8523(a) that placed any limitations as to which party could raise such venue arguments.

The court remanded the case back to the trial court where the private Defendants would be permitted to argue for a change in venue.

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


Source: Article-“Appeals Court: Private-Sector Co-Defendants May Seek Venue Change Under State Protection Provision.” Pennsylvania Law Weekly (Feb. 10, 2022).

Source of Image:  Photo by Trev Adams from www.Pexels.com.

Discovery Rule Found Inapplicable in Case of Dismissal of Claim Against PennDOT on Statute of Limitations Grounds

In its non-precedential decision in the case of Rupert v. Campus Crafts, Inc., No. 90 C.D. 2020 (Pa. Cmwlth. Oct. 27, 2021 Jubelirer, Jr., Wojcik, J., and Leadbetter, S.J.) (Op. by Wojcik, J.) (Not Reported/Not Precedential), the Pennsylvania Commonwealth court held that the trial court below had properly determined that the discovery rule did not apply in a Plaintiff’s lawsuit over an automobile accident. The court therefore granted the Defendants’ Motions for Judgment on the Pleadings because the applicable statute of limitations had expired.

This matter arose out of a motor vehicle accident.  As part of the claim, the Plaintiff asserted that PennDOT was negligent in the placement of mirrors on the roadway.  Following the accident, the Plaintiff retained accident reconstruction experts to analyze the claim and in an effort to see if such a claim should be included in the Complaint. 

On appeal in this matter, the Plaintiff asserted that his counsel had acted reasonably and diligently in developing the claim and that, as such, the Discovery Rule was applicable and that the issue of the applicability of the Discovery Rule should have been allowed to proceed to the jury.

As noted above, the Commonwealth Court disagreed and affirmed the dismissal of the action on the basis of the statute of limitations defense.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 16, 2021).

Proper Venue for Cases Involving PennDOT As Party Defendant

In the case of Koshinski v. Johnson, PennDOT, et al., No. 2019-CV-1278 (C.P. Lacka. Co. Feb. 20, 2020 Nealon, J.), the court sustained Preliminary Objections asserting improper venue in a motor vehicle accident case involving PennDOT.

According to the Opinion, the Plaintiff, a Dauphin County resident, who was involved in a motor vehicle accident that occurred in Schuylkill County, filed a personal injury action in Lackawanna County against multiple Defendants, including the Pennsylvania Department of Transportation (PennDOT).

PennDOT filed Preliminary Objections asserting that Lackawanna County was an improper venue under Pennsylvania law.

The court agreed and noted that, based upon 42 Pa. C.S.A. §8523(a) and 37 Pa. Code §111.4(c), the state agency and its employee may only be sued in the county where (1) the cause of action arose, (2) the agency maintains its principal office, or (3) the Commonwealth party’s local office is located for the county in which the cause of action arose.

Judge Nealon, who wrote the Opinion, noted that these possible areas of proper venue for a Commonwealth defendant took precedence even in those cases where, as here, the Plaintiff has asserted joint and several liability against multiple Defendants.

As such, the court sustained the Preliminary Objections filed by PennDOT asserting improper venue and ordered that the action be transferred to Schuylkill County pursuant to Pa.R.C.P. 1006(e), with the cost associated with the transfer to be borne by the Plaintiff.

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

Application of Sudden Emergency Rule Upheld; Also, Evidence of Post-Accident Alterations of Road by PennDOT Not Admissible

In the case of Mitchell v. Milburn, No. 344 C.D. 2017 (Pa. Cmwlth. Dec. 6, 2018 McCullough, Leavitt, and Cannon, J.) (Op. by McCullough, J.), the court ruled that the sudden emergency doctrine is an absolute defense to an allegation of negligence and is available to any Defendant who suddenly and unexpectedly finds himself or herself confronted with a perilous situation that permits no opportunity to assess the danger and respond appropriately.

The Plaintiff sued the two other drivers involved in the accident and also sued PennDOT apparently relative to the design of the intersection. 

The Plaintiff settled on a joint tort basis with the rear ending Defendant prior to trial for an unspecified amount, with the agreement being that that Defendant would remain on the verdict slip for purposes of apportioning the percentages of liability amongst the parties.  The other driver Defendant secured a non-suit under the facts presented.

The jury entered a $2.3 million dollar verdict in favor of the Plaintiff and assessed 100% of the liability on the rear-ending Defendant who had settled out prior to trial. 

The Plaintiff filed post-trial motions relative to the entry of a non-suit in favor of the driver-Defendant and relative to the trial court's refusal to allow into evidence the fact that PennDOT altered the intersection after this accident.

The court ruled that the Plaintiff’s version of the accident that she was hit from behind and shoved to the Defendant’s oncoming traffic lane established a sudden emergency as a matter of law from the perspective of the Defendant approaching in the oncoming lane.  

When reviewing the trial court's entry of a non-suit in favor of the oncoming Defendant-driver, the Commonwealth Court additionally relied upon the well-settled rule of law that a mere happening of an accident is not evidence of negligence.  

Also of note in this decision is the Commonwealth Court’s ruling that Defendant PennDOT’s subsequent alteration of the intersection was inadmissible in the case as evidence of a subsequent remedial measure.  

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

I send thanks to Attorney James M. Beck of the Philadelphia offices of Reed Smith law firm for bringing this case to my attention. 

ARTICLE: The Uncommon Law of 2018: Reversals of Precedent and Splits of Authority Dominate

This article of mine was recently published in the December 18, 2018 edition of the Pennsylvania Law Weekly and is republished here with permission.

The Uncommon Law of 2018: Reversals of Precedent and Splits of Authority Dominate

By Daniel E. Cummins
December 18, 2018

These are invigorating times for those engaged in the study and practice of law in Pennsylvania.

Over the past year there have been dramatic reversals of long-standing law by a newly activist Pennsylvania Supreme Court. There have been clarifications of recurring civil litigation issues by both the Superior Court and Commonwealth Court. There has also been a continuing development of a new common law by the Pennsylvania state and federal trial courts grappling with novel questions in the absence of appellate guidance in post-Koken matters and with respect to social media discovery and evidentiary disputes. Keeping apprised of these dramatic changes and developments is more important than ever.

Dramatic Pennsylvania Supreme Court Decisions

Over the past year the Pennsylvania Supreme Court made its presence known with its new brand of judicial activism evidenced in several civil litigation decisions that have created new avenues for plaintiffs to seek additional compensation and which will likely trigger more litigation in the future.

In Cagey v. PennDOT, 179 A.3d 458 (Pa. Feb. 21, 2018), the Pennsylvania Supreme Court expressly overruled the long-followed 12-year-old Commonwealth Court decision in Fagan v. Commonwealth, DOT, 946 A.2d 1123 (Pa.Cmwlth. 2006), and held that PennDOT is now only immune from suit in guiderail claims in limited circumstances. Under the prior Fagandecision there was essentially no liability on any claims against PennDOT relative to guiderails in motor vehicle accident matters.

Now, under the Pennsylvania Supreme Court decision in the Cagey case, when PennDOT has installed a guiderail, sovereign immunity is waived if it is established by the plaintiff that the agency’s negligent installation and design created a dangerous condition that caused or contributed to the happening of a motor vehicle accident.  A dramatic increase of lawsuits against PennDOT on this theory of recovery is anticipated.

In another stunning reversal, the Pennsylvania Supreme Court overturned 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1).

In the case of Balentine v. Chester Water Authority, No. 119 MAP 2016 (Pa. Aug. 21, 2018 Mundy, J.), the plaintiff’s decedent was working as a contractor hired to rehabilitate a section of a water distribution system. At the time of the accident, the decedent was working just off to the side of a roadway. A government inspector pulled up to the scene and parked his car and left it running. The decedent-contractor was unfortunately killed when a third car struck the parked government inspector’s car and propelled that stationary vehicle into the decedent.

The majority of the Pennsylvania Supreme Court reviewed the law behind the Tort Claims Act and held that movement of a vehicle, whether voluntary or involuntary, is not required by the statutory language of the vehicle liability exception in order for that exception to apply. As stated, in  so ruling, the court eradicated 30 years of precedent on the issue in one fell swoop. This decision is also expected to give rise to an increase in lawsuits on this theory of recovery.

No More Voir Dire Without a Judge Present

The Pennsylvania Superior Court also handed down a number of notable decisions over the past year. The case of Trigg v. Children’s Hospital of Pittsburgh, 187 A.3d 1013 (Pa. Super. May 14, 2018), has already changed how jury selection will work in the trial courts across the Commonwealth. In Trigg, the Pennsylvania Superior Court reversed a trial court’s denial of post-trial motions in a medical malpractice case regarding, in part, jury selection issues.

According to the opinion, in certain trials in Allegheny County, only a court clerk presides over voir dire. Any issues raised during jury selection would require the litigants and the clerk to go to another office to meet with the judge for a decision on whether to strike a juror. As such, the trial court judge would not have any first-hand perception of a juror’s demeanor in response to questions posed by the attorneys during jury selection.

The Superior Court in Trigg ruled that, given the fact that that first-hand perception of a juror’s demeanor is the basis for a palpable error deference standard of review on appeal for voir dire issues, decisions on jury strikes made by judges who do not attend jury selection should not be afforded that type of deference by the Superior Court.

The appellate court ruled in this fashion after noting that the alleged demeanor of a prospective juror cannot be reconstructed after the fact by attorneys attempting to relay the same to the formerly absent trial judge.  The Superior Court ruled that “a judge personally witnessing the original voir dire is essential, because it justifies our—and the losing party’s—faith in the trial court’s rulings on challenges for cause.”

The Superior Court’s decision in Trigg is in line with the Pennsylvania Supreme Court’s jury selection decision last year in the case of Shinal v. Toms, 162 A.3d 429 (Pa. 2017). In Shinal, the Pennsylvania Supreme Court ruled that whether a juror is to be stricken during voir dire is dependent upon the trial judge’s assessment of the juror’s demeanor and the juror’s answers to the questions posed regarding whether the juror is capable of putting aside any biases so as to serve in a fair and impartial manner.

Going forward, it is anticipated that this line of decisions will keep trial court judges on the bench during voir dire so as to avoid any jury selection objections being upheld on appeal.

Social Media Decisions

Notable social media discovery and evidentiary decisions were handed down over the past year.

In Kelter v. Flanagan, PICS Case No. 18-0266, No. 286-Civil-2017 (C.P. Monroe Co. Feb. 19, 2018 Williamson, J.), Judge David J. Williamson granted a defendant’s motion to compel a plaintiff to provide the defense counsel with the plaintiff’s Instagram account log-in information.

The court ruled in this fashion given that the defense had made a predicate showing that the public pages on the plaintiff’s profile showed that more information may be found on the private pages of the same profile.

In addition to granting the defense limited access to the private pages of the site for discovery purposes, the also court ordered that the defense not share that information with anyone not related to the case. The court’s order also directed that the Plaintiff not remove or delete any content from that account in the meantime.

A contrary result was handed down in the Northampton County Court of Common Pleas ruling in Allen v. Sands Bethworks Gaming, No. C-0048-CV-2017-2279 (C.P. North. Co. Aug. 6, 2018 Dally, J.).

This case arose out of the plaintiff’s alleged slip-and-fall in a bathroom at the Sands Casino in Bethlehem, Pennsylvania.

During the course of discovery, the plaintiff provided limited information in response to social media interrogatories seeking information regarding her online activity. The plaintiff confirmed in her responses that she used Facebook and Twitter but declined to provide any more detailed information other than to confirm that nothing had been deleted from her accounts since the date of the incident.

The defense responded with a motion to compel for more information, including information from the private portions of the plaintiff’s social media profiles.

In his detailed opinion, Northampton County Judge Craig A. Dally provided an excellent overview of the general rules of discovery pertinent to this issue as well as a review of the previous social media discovery decisions that have been handed down not only by various county courts of common pleas but also courts from other jurisdictions. No Pennsylvania appellate court decision was referenced by the Allen court as there is apparently still no appellate guidance to date.

In his opinion, Dally noted that the defendant had pointed out discrepancies between the plaintiff’s deposition testimony regarding her alleged limitations from her alleged accident-related injuries and photos available for review on the public pages of the plaintiff’s Facebook profile depicting the plaintiff engaging in certain activities.

Nevertheless, after reviewing the record before the court, Dally still ruled that the defense had failed to establish the factual predicate of showing sufficient information on the plaintiff’s public pages to allow for discovery of information on the plaintiff’s private pages.

In a footnote, the court also emphasized that such a factual predicate must be established with respect to each separate social media site the defendant wishes to access further.

Dally additionally noted that, in any event, he “would be disinclined to follow the line of Common Pleas cases that have granted parties carte blanche access to another party’s social medial account by requiring the responding party to  to turn over their username and password, as requested by the defendant in this case.” The court found that such access would be overly intrusive, would cause unreasonable embarrassment and burden, and represented a discovery request that was not properly tailored with reasonable particularly as required by the Rules of Civil Procedure pertaining to discovery efforts. In light of the above reasoning, the defendant’s motion to compel was denied.

The above cases show that a decision on the discoverability of social media information can be dependent upon the personal assessment of the evidence by a particular trial court judge.

It is anticipated that when faced with the issue, the appellate courts will apply a similar method of allowing for social media discovery, i.e., requiring a predicate showing of information on the public pages of a profile that lend support to an assertion that discovery of the private pages should be allowed as well. But perhaps the appellate courts will apply more concrete parameters of the analysis so that the litigants can predict with greater confidence how a trial court judge may be required to rule upon the issue.

For a comprehensive compilation of social media discovery decisions, one can freely access the Facebook Discovery Scorecard on the Tort Talk blog. Many of the decisions handed down to date can be viewed and downloaded from that page.

Although there has been no appellate guidance in Pennsylvania on the issue of the discoverability of social media information, the appellate courts have weighed in on the issue of the admissibility of social media evidence at trial, albeit in the criminal court context.

Earlier this year, in the case of Commonwealth v. Mangel, 181 A.3d 1154 (Pa. Super. 2018), the Pennsylvania Superior Court ruled that social media posts are inadmissible in criminal cases unless prosecutors can present evidence of who actually authored the commentary, that is, unless the evidence is authenticated under Pa.R.E. 901.

The court ruled in this fashion after noting that social media accounts can be easily hacked or faked. In so ruling, the court affirmed an Erie County trial court decision denying a prosecutor’s motion in limine seeking to introduce into evidence Facebook posts and messages allegedly authored by the defendant.

Both the trial court and the appellate court found that merely presenting evidence that the posts and messages came from a social media account bearing the defendant’s name was not enough to allow the evidence in. The court noted that Facebook posts and messages must instead be authenticated under Pa.R.E. 901 in a manner similar to how text messages and email messages are authenticated. The Superior Court in Mangel relied on its own 2011 decision in Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705 (Pa. 2014), which dealt with the admissibility and authentication of cellphone text messages.

In the 2018 Commonwealth v. Mangel case, the court noted that the Koch court had previously held that “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.” The Mangel court ruled, in a case of first impression, that the same analysis should apply to social media posts in the criminal court context.

It can be expected that a similar ruling will also be handed down in the context of a civil litigation matter should that issue come before the trial or appellate courts.

The Future Shows Up as Your Ride

Sometimes the future, like an Uber ride, arrives sooner than you expect. One of the first Pennsylvania court decisions in a personal injury matter involving an Uber ride was handed down this year.

In the case of Fusco v. Uber Technologies, PICS No. 18-0944  (E.D. Pa. July 27, 2018 Goldberg, J.)(Mem. Op.), the court conditionally granted Uber’s motion to dismiss the plaintiff’s negligent hiring, retention and supervision claims in a case of an Uber driver who allegedly attacked the plaintiff-customer.

By way of background, the plaintiff had attended a party Philadelphia and then contacted Uber for a ride to his home in New Jersey.

According to the opinion, the Uber app conceals the customer’s destination until the start of a booked trip. Accordingly, when a driver arrives to pick up the plaintiff, he does not know the plaintiff’s destination. The app is apparently set up in this way so as to the prevent drivers from declining routes they deem to be less profitable or less desirable. According to the opinion, Uber does not allow drivers to refuse a trip after learning of a customer’s destination.

In this matter, when the Uber driver arrived, he refused to take the plaintiff to his home in southern New Jersey. The plaintiff, apparently knowing the rules that Uber imposes on its drivers, remained seated in the car and repeated his request to be brought home. At that point, the driver dragged the plaintiff out of the car, kicked and beat him, leaving the plaintiff unconscious and bleeding.

The plaintiff later filed this suit against Uber asserting a negligent hiring claim, fraud and misrepresentation claims and vicarious liability claims.

According to the opinion, the court had originally granted Uber’s motion to dismiss on the negligent hiring and related claims given that there was no record of any alleged instances of past misconduct by the offending driver.

The court noted, however, that, after the plaintiff filed his complaint, news outlets in the area reported that the driver involved in the incident had a prior criminal conviction. In light of this development, the court granted the plaintiff leave to amend his complaint as to these claims.  Accordingly, the claim against Uber was allowed to proceed.

Can You Hear Me Now?

In 2018, the law continued to trend with respect to the issue of the availability of punitive damages in claims involving drivers involved in accidents while using their cellphones.

Under Pennsylvania’s Anti-Texting Law, 75 Pa.C.S.A. Section 3316, it is provided that no driver shall use a handheld device to send, read or write a text while the vehicle is in motion. Noncommercial drivers are otherwise still currently allowed to use their cellphones to make and receive calls while driving.

As for commercial drivers, Pennsylvania’s Distracted Driving Law, 75 Pa.C.S.A. Section 1622, makes it illegal for commercial drivers to use handheld devices in any fashion, except in emergency situations. That law also provides that it is illegal for an employer to permit or require a commercial driver to use a handheld device while driving, except in emergency situations.

With the continuing absence of any appellate authority on the issue to date, the trial courts of Pennsylvania have developed a common law on the issue of whether punitive damages are a viable part of an auto accident claim involving cell phone use by a defendant driver.

In the Cumberland County case of Manning v. Barber, No. 17-7915 Civil (C.P. Cumb. Co. 2018), preliminary objections were granted and a plaintiff’s punitive damages claim was dismissed in a case in which the plaintiff alleged that the defendant driver was texting while driving.

According to the opinion, the plaintiff’s vehicle was stopped at a red light with another vehicle stopped behind it. The plaintiff alleged that the defendant failed to stop for the traffic light and rear-ended the second vehicle, causing it to strike to the rear of the plaintiff’s vehicle. The plaintiff additionally alleged that, at the time of the accident, the defendant was not looking at the roadway because she was distracted while looking at and texting on her cellphone.

After reviewing the general law pertaining to punitive damages, the court confirmed that there remains “a lack of Pennsylvania appellate case law in the context of distracted driving cases where the tortfeasor is distracted by the use of a cellular phone at the time of the accident.”

The court did note that there were a number of trial court decisions from across Pennsylvania regarding claims for punitive damages in cellphone cases. Based upon these trial court decisions, the Manning court concluded that the mere use of a cellphone absent additional indicia of recklessness was not enough to sustain a claim for punitive damages.

In reviewing the plaintiff’s complaint, the note noted that the plaintiff simply pleaded boilerplate allegations that the defendant was inattentive and going too fast. The court in Manning found that these allegations only amounted to a classic claim of negligence, and not recklessness.

The court in Manning additionally rejected the plaintiff’s presentation of a policy-based argument that texting while driving should constitute per se recklessness. The court stated that, while this argument maybe considered by a future appellate court, in the absence of any such appellate guidance to date, the Manning court declined to accept the plaintiff’s argument in this regard.

The Manning decision is consistent with other prior trial court cellphone decisions requiring additional aggravating facts over and above mere cellphone use in order for a court to allow for a punitive damages claim to proceed. Such aggravating factors in other decisions in which punitive damages were allowed to proceed have included the fact that the defendant is driving a large commercial vehicle, excessive speed on the part of any driver, heavy traffic in the area, looking down or intoxication.

It remains to be seen whether 2019 will bring us an appellate decision on the issue of cellphone use and punitive damages claims in the auto law context.

Still in Need of Appellate Guidance for Post-’Koken’ Cases

There were no appellate decisions handed down in 2018 in the separate auto law context of post-Koken matters.

The only published appellate decision to date remains the Pennsylvania Superior Court’s decision from five years ago in Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa. Super. 2013) appeal denied 89 A.3d 1286 (Pa. 2014). In that case, the Superior Court approached the question of whether an insurance company defendant should be identified as a party to a jury in a post-Koken trial but, unfortunately, did not provide a definitive holding on that issue.  Incredibly, the Pennsylvania Supreme Court declined to hear that appeal thereby missing a rare opportunity to dole out much needed guidance on novel issues of law.

Ever since, the trial courts of Pennsylvania continue to struggle with post-Koken issues. According to the post-Koken Scorecard on the Tort Talk blog, which has been compiling post-Koken decisions over the past decade, there are splits of authority among, and sometimes within, the county courts across the commonwealth on many different important questions of law pertaining to pleadings, discovery, evidentiary and trial issues.

For example, in terms of whether post-Koken claims not containing a bad faith claim should be consolidated or severed in terms of the third-party allegations against the defendant driver and the breach of contract claim for UIM benefits, at least 24 county courts favor the pretrial consolidation of such cases, while at least 23 favor the severance of these types of cases.

In terms of those post-Koken cases in which a bad faith claim is also alleged, there are at least 10 county courts that deny motions to sever and stay the bad faith claims, while at least 19 other county courts have ruled in favor of granting motions to sever and stay discovery on the bad faith claims.

The majority trend in the Pennsylvania federal courts, regardless of whether a bad faith claim has been pleaded, has been in favor of the consolidation of post-Koken claims through the life of the litigation.

Looking Ahead to 2019

It is expected that the above trending areas of law will continue to grab the headlines in 2019.

Perhaps one of the most important decisions to watch for in 2019 will be the Pennsylvania Supreme Court’s ruling in Roverano v. Crane, No. 58 EAL 2018 (Pa. July 31, 2018). In Roverano, the Pennsylvania Supreme Court is expected to address the issue of first impression involving the question of whether the Pennsylvania Superior Court misinterpreted the Fair Share Act in terms of apportioning liability among defendants in the context of this products liability case. That decision could have an impact across all types of civil litigation matters involving multiple defendants.

At the Superior Court level, the hope is that that court will publish any decisions in these trending areas of law as opposed to releasing them as nonprecedential decisions. In this day and age of digital information there should not be any concern with respect to filling too many casebooks—those books are (unfortunately) falling by the wayside. As appellate guidance is desired by both civil litigators and the bench on these emerging areas of concern, such decisions should all be published as a matter of course.

The hope also remains that if the Pennsylvania Supreme Court has an opportunity to review any of the above issues on appeal that it will grant certiorari and also provide the much-needed appellate guidance in these important areas of the law.

Daniel E. Cummins is a partner with the Scranton law firm of Foley, Comerford & Cummins. He focuses his practice on the defense of auto accident, premises liability and products liability matters.  His Tort Talk Blog can be viewed at www.TortTalk.com.