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.

Civil Litigant Permitted to Assert Fifth Amendment Right Against Self-Incrimination in a Personal Injury Case

In the case of Whitcher v. Zimmerman, No. 2022-C-0339 (C.P. Leh. Co. Oct. 25, 2022 Varricchio, J.), the court issued a detailed Order denying a Plaintiff’s Motion to Compel and upholding a Defendant’s right to assert his Fifth Amendment privilege against self-incrimination.

According to the Order, this case involved a motor vehicle accident with possible allegations of driving under the influence. The Defendant driver had previously pled guilty to the charge of careless driving in connection with the accident.

The Plaintiff asserted that, as such, the Defendant driver could not face any further criminal charges.

In response, the Defendant driver asserted that it was certainly possible for him to face additional criminal charges related to the accident based upon any newly discovered or disclosed evidence that could come out during the course of discovery during this civil litigation matter.

In ruling on the Motion, the court noted that the statute governing when a subsequent prosecution is barred by a former prosecution for a different offense, contains certain exceptions.  One exception was when the offense of which the Defendant was formerly convicted or acquitted was a summary offense or a summary traffic offense.

Given this set of facts, the court applied the applicable standard of review and noted that it was not “perfectly clear” that the Defendant driver would not possibly face additional criminal charges related to the accident based upon his provision of information in discovery. 

As such, the court found that the Defendant driver’s assertion of the Fifth Amendment right against self-incrimination was reasonable. Therefore, the court denied the Plaintiff’s Motion to Compel the Defendant driver to respond to certain discovery requests.

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

Source of image:  Photo by Anthony Garand on www.unsplash.com.

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.

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.

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 Brann of Federal Middle District Issues Opinion Addressing Motions to Dismiss and/or Stay in College Hazing Case

In the case of Piazza v. Young, No. 4:19-cv-00128 (M.D. Pa. Aug. 27, 2019 Brann, J.), the court addressed various Motions to Dismiss and Motions to Stay in a civil lawsuit arising out of the fatal injuries sustained by a student at Penn State allegedly as a result of hazing activities in a fraternity.  The court granted the motions in part and denied the motions in part.  

Of note, with respect to those fraternity brothers Defendants who were under the age of 21, the court allowed the claims of the Plaintiff to proceed against those underaged Defendants under the Plaintiff’s theory of recovery to hold the Defendants liable for breaching an alleged protective duty that the Defendants, as fraternity members, allegedly owed to the Plaintiff’s son, a fraternity pledge. 

Judge Matthew W. Brann
M.D. Pa.

In this regard, Judge Brann refused to apply the Pennsylvania Supreme Court’s decision in the case of Kapres v. Heller, 640 A.2d 888 (Pa. 1994) in as an expansive manner as requested by those moving Defendants who were under the age of 21.   Under the Kapres case, the Pennsylvania Supreme Court generally ruled that individuals under the age of 21 cannot be held liable under the social host doctrine to a guest or third party injured on the premises relative to the service of  alcohol. 

The court in this Piazza case refused to read the Kapres case as immunizing the fraternity Defendants in this case from alleged liability for their otherwise allegedly wrongful conduct that involved the provision of alcohol.   See Op. at 16-18.  The court also noted that an expansive reading of the Kapres decision in the context of this case would not serve to further the social utility of the Pennsylvania statutes against hazing activities.

However, the court did otherwise note that the Plaintiff’s separate claim for negligence per se relative to the service of alcohol asserted against the fraternity Defendants who were under the age of 21 should be dismissed under the rationale of the Kapres case.  

This Opinion is also notable for the court’s review of the law pertaining to allegations of breach and causation, hazing allegations, allegations of civil conspiracy and claims of battery and intentional infliction of emotional distress.  

The court ruled that those defendants who acted to aid plaintiff after his accident can be liable under Restatement §§323, 324A for negligently failing to seek professional medical help.  However, the court found that other defendants who did not act to aid the Plaintiff could not be found to be liable for failing to render any aid as there is no cognizable duty under these facts to rescue in the first place.

Judge Brann also found that a negligence per se claim based upon an alleged violation of Pennsylvania’s anti-hazing statute is a viable claim. 

The Plaintiff’s intentional infliction of emotional distress claim was dismissed under the rationale that an alleged attempted cover up of the incident did not amount to an intent to inflict emotional distress on anyone.

The court additionally denied the Motion to Dismiss the claims of punitive damages asserted in this matter.   The court noted that it has routinely declined to dismiss punitive damages demands at the Motion to Dismiss stage of the case and prior to discovery.  

Judge Brann also addressed separate Motions to Stay filed by several Defendants who have been criminally charged arising out of the same incident.  

On this issue, the court reviewed the six (6) factors required under the case of Barker v. Kane, 49 F.Supp. 3^rd 521, 525-26 (M.D. Pa. 2016) and granted this in part and denied it in part.   Essentially, the court denied the request to stay the matter but crafted the remedy that entitles certain Defendants to exercise their right against self-incrimination.   The court noted that certain Defendants would not be required to  answer any pleadings or discovery or participate in any depositions that would implicate their Fifth Amendment Right against self-incrimination by engaging in such pleadings and discovery.  

Anyone wishing to review this decision by Judge Brann may click this LINK.

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.

Summary Judgment Denied on Vicarious Liability Issues in Shooting Case

In his recent Opinion in the case of Rogers v. Thomas, No. 12-CV-1464 (C.P. Lacka. Co. July 18, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied Motion for Summary Judgment in a shooting case on issues of whether or not a father and the father’s sporting goods business was vicarious liable for a shooting death caused by the father’s son as a result of a fatal shooting.  

The court found issues of fact precluding the entry of summary judgment against the father and/or the sporting goods business Defendants.  

This Opinion provides a thorough review of the law pertaining to vicarious liability for criminal acts of third persons in the employment of others.  

The Opinion also reviews the parameters under which information gathered a deposition in which the shooter Defendant repeatedly asserted his Fifth Amendment privilege against self-incrimination in support of a Motion for Summary Judgment.  

Anyone wishing to review this decision by Judge Nealon may click this LINK.

Link To Judge Mazzoni's Opinion on Privilege Against Self-Incrimination At Depositions

Earlier this week, a synopsis was provided for the case of Hilburn v. Jones, 2012-CV-6401 (C.P. Lacka. Co. Aug. 4, 2014 Mazzoni, J.), in which Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas reversed a decision by the Lackawanna County Special Trial Master regarding the issue of whether or not a deponent had the right to assert the privilege against self-incrimination at a deposition.   Judge Mazzoni reviewed the law in this regard and opined that the defendant did not have a reasonable basis to claim the privilege at a deposition.

Click HERE to view that Tort Talk post.

I have since secured a copy of that Hilburn decision which can be viewed online HERE.

Judge Mazzoni of Lackawanna County Addresses Privilege Against Self-Incrimination At Depositions

In his recent Opinion in the case of Hilburn v. Jones, 2012-CV-6401 (C.P. Lacka. Co. Aug. 4, 2014 Mazzoni, J.), Judge Robert A. Mazzoni reversed a decision by the Lackawanna County Special Trial Master regarding the issue of whether or not a deponent had the right to assert the privilege against self-incrimination at a deposition.  

 

According to the Opinion, the case involved personal injury claims arising out of a fall by the Plaintiff on the Defendant’s premises.

 

The Defendant wished to depose the Plaintiff’s “ex-husband” regarding calls that the ex-husband allegedly made to the insurance company after the accident, in which he stated that the Plaintiff actually fell at her own home.

 



Judge Robert A. Mazzoni
Lackawanna County

At the deposition of the Plaintiff’s ex-husband, the deponent appeared with counsel and refused to answer any questions, asserting a privilege against self-incrimination under the Fifth Amendment of the Pennsylvania Constitution.  

 

The Defendant presented a Motion to Compel to the Lackawanna County Court of Common Pleas Special Discovery Master, which was denied.  

On appeal, Judge Mazzoni found that the deponent did not have a valid and reasonable basis for the exercise of the privilege against self-incrimination.    Accordingly, the court ruled that the Defendants were entitled to conduct another deposition to inquire as to the circumstances surrounding the deponent’s alleged statements, his knowledge of the Plaintiff’s alleged fall, her alleged injuries, and any other related matters.  

To view this Opinion online, click HERE.