Superior Court Upholds Right to Jury Trial and Rejects Arbitration Clause Relative to Contract Plaintiff Entered Into on Defendant's Website

In the case of Duffy v. Tatum, No. 483 EDA 2025 (Pa. Super. March 3, 2026 Lazarus, P.J., Panella, P.J.E., and Sullivan, J.) (Op. by Panella, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s Order overruling a Defendant’s Preliminary Objections under which the Defendant asserted that a Plaintiff had waived the right to a jury trial by way of an agreement entered into via the Defendant's website.

According to the Opinion, the Plaintiff had proceeded to the Defendant’s website to book services provided by the Defendant moving company.

On that website, the customer was required to check off a box accepting the Defendant’s terms of services. The customer had the ability to click on an underlined phrase that would take the customer to the Defendant’s Terms of Service by way of a hyperlink. 

On that hyperlink, if the customer accessed it, one of the provisions that would be seen in the language on that page would be an ADR clause for the resolution of any disputes that arose between the parties by way of mediation followed by an arbitration, as opposed to by way of an opportunity for a jury trial in a court of law.

In this matter, the trial court found that the Defendant’s website did not provide a reasonably obvious notice of its Terms of Service to the Defendant’s customers prior to the customer’s purchasing the services offered by the company.  As such, the trial court ruled that the customer had never agreed to waive his constitutional right to a jury trial. As noted, on appeal, the Pennsylvania Superior Court affirmed the trial court’s decision in this regard.

The Superior Court framed the central issue before it as involving “an overarching question of whether a person should be deprived of their constitutional right to a jury trial when they ostensibly enter into an arbitration agreement through hyperlinked Terms of Service on a website that the person never clicked on, viewed, or read.” See Op. at p. 6.

In so ruling, the Pennsylvania Superior Court referred to its prior decisions on this issue in which the court had held that the Pennsylvania State Constitution provides its citizens with the greater protections afforded by the right to a jury trial.

The Superior Court otherwise noted that the “copious use of contracts with restrictive arbitration agreements causes concern, particularly in the context of internet contracts like the one at issue here, where the parties are frequently of unequal bargaining power and one party may be unaware of the significant rights they are waiving simply by using a website to make a purchase or retain services.” See Op. at p. 8.

President Judge Emeritus Panella noted in his Opinion that, in recognition of this reality, Pennsylvania courts have taken a small step towards righting the wrongs of arbitration agreements with respect to wrongful death actions involving negligent nursing center facilities. The court otherwise noted that there is still a need for greater scrutiny regarding a person’s waiver of their constitutional right to a jury trial when it comes to these types of arbitration agreements in other scenarios as well. 

Judge Panella stated that “[t]his need is imperative when there is no genuine effort to inform a purchaser of the terms of the contract before they click on a link or box that purports to generate their agreement to a contract, as the case” was in this matter. See Op. at p. 9.

The court went on to note that it found that it is imperative that, in the context of civil litigation matters, that a person be fully informed of their constitutional right to a jury trial and of the effect of waiving that right. Accordingly, the court held that it is essential that any waiver of the right to a jury trial must be clearly described and evidenced such that the person waiving the right fully understands the right that they are giving up by agreeing to enter into the contract.

In light of its holding that the constitutional right to a jury trial in Pennsylvania should be afforded the greatest protection possibly by the courts of Pennsylvania, the court in this Duffy case enunciated a “strict burden of proof [that its] necessary to demonstrate a person’s unambiguous manifestation of assent to arbitration.” See Op. at p. 15.

More specifically, the court noted that this strict burden of proof necessary to demonstrate a person unambiguous assent to arbitration requires (1) an explicit statement on the registration website and application screens that a consumer is waiving their right to a jury trial when then the person agrees to the seller’s Terms of Service and the registration cannot be completed until the person is fully informed of that waiver, and (2) when the agreements are available for viewing after a user has clicked on a hyperlink, the waiver should be not hidden in the middle of the document, but rather, should appear prominently in bold, capitalized text. See Op. at p. 15.

The court additionally noted that the word “arbitration” must also be clearly defined within the arbitration agreement in addition to being prominently displayed in the language of the contract. See Op. at p. 16.

In the end, in this case, where the customer here never clicked on the Terms of Service and, therefore, never saw the Terms of Service, the court ruled the customer did not unambiguously assent or agree to give up his or her rights to a jury trial in favor of arbitration. 

The Superior Court also ruled that, where the website did not provide a reasonably obvious notice of its Terms of Service, there was no meeting of the minds on a contractual basis relative to the issue of arbitration for the resolution of any disputes. 

As such, the Pennsylvania Superior Court affirmed the lower court's decision and found that the trial court did not err in overruling the Defendant company’s Preliminary Objections on the issues presented.

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


Source: Article – “Pa. Superior Court Rules Company’s Terms Didn’t Waive Customer’s Right to Jury Trial” By Tristin Hoffman of The Legal Intelligencer (March 6, 2026).


I also send thanks to Attorney Thomas F. Foley, III of the Foley Law Firm in Scranton, Pennsylvania for making sure that I saw this decision as well.

Source of image:  Photo by Vojtech Okenka on www.pexels.com.

Motion For Summary Judgment Denied in Zipline Accident Case

In the case of Witkowski v. Hellerick’s Family Farm, Inc., No. 230900999 (C.P. Phila. Co. Sept. 18, 2025), the trial court issued a Rule 1925 Opinion requesting the Superior Court to affirm its decision denying a Motion for Summary Judgment in a premises liability case.

According to the Opinion, this matter arises out of a fatal accident that occurred when the Plaintiff died after experiencing difficulties on a zipline course at the Defendant’s farm.

Prior to the incident, the Plaintiff has signed liability waivers acknowledging the risks involved in the activity.

After the accident, the Plaintiff filed a negligence suit in which recklessness was alleged as well.

The Defendant farm moved for summary judgment arguing that the signed waivers and the Agritourism Activity Protection Act shielded the Defendants from liability.

According to the Opinion, the Agritourism Activity Protection Act limits liability for agritourism providers unless gross negligence or recklessness is proven.

The court found that issues of fact with regards to whether the Defendant’s conduct constituted gross negligence or recklessness, which would negate the protections of the waivers and the act existed in the case presented. As such, the court noted that the issues should be permitted to proceed to a jury.

The trial court otherwise noted that the appeal should be dismissed on procedural grounds as its order did not meet the criteria for an appealable Order under Pennsylvania law given that the Order at issue was not a final Order.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 8, 2026).

Plaintiff Wins Denial of Summary Judgment Motion Without Even Filing a Response

 

In the case of Dunkel v. Dallago, No. S-1335-CV-2022 (C.P. Schuly. Co. Sept. 5, 2025 Burke, J.), the court denied a Defendant’s Motion for Summary Judgment in a motor vehicle accident case in which the Defendant asserted that it should be granted summary judgment in light of the Plaintiff’s failure to produce any expert medical testimony on the issues of causation.  

The Plaintiff, who was represented by counsel, failed to file any response whatsoever to the Motion for Summary Judgment. The court still denied the Motion for Summary Judgment after finding that it had the discretion to excuse this failure and otherwise rule upon the Motion.

According to the Opinion, this matter arose out of a motor vehicle accident as a result of which the Plaintiff alleged personal injuries.

Relative to the defense argument that it was entitled to judgment as a matter of law given the Plaintiff’s failure to produce expert medical testimony to support the Plaintiff’s burden of proof on causation, the court referenced the exception to the law generally requiring such expert testimony. The court noted that, under that exception, where there is an obvious causal relationship between an accident and an injury, the requirement of expert testimony may be excused. The court noted that an obvious causal relationship can be found to exist where the injuries are either an “immediate and direct” or the “natural and probable” of the alleged negligent act.

The court found that there remained factual issues in this regard supported the court's denial of the request for the entry of summary judgment.

Although the Plaintiff never filed a Response to the Motion, the court also went on to note that there were other genuine issues of material fact presented in the case.  The court noted that the Plaintiff claimed that the Defendant was negligent and the Defendant not only denied negligence in its pleadings but also asserted contributory negligence against the Plaintiff. The court also noted sua sponte that there were other issues likely to be raised at the time of trial, including the speed of the Defendant’s vehicle, whether the Defendant was distracted at the time of the accident, and whether the Defendant pled guilty to any criminal charges in connection with the accident.

Anyone wishing to review a copy of the Court’s Opinion granting summary judgment in favor of a Plaintiff who did not file any Response to the Motion may click this LINK.

Source of image:  www.urbandictionary.com.

Liability for Skiing Accident Found to be Barred by Signed Waiver and Under the Skier's Responsibility Act

The case of Lin v. Shawnee Mountain Ski Resort, No. 4031-CV-2022 (C.P. Monroe Co. Dec. 11, 2024 Williamson, J.), the court granted the Defendant ski resort’s Motion for Summary Judgment in a case arising out of a skiing accident at the resort.

According to the Opinion, the Plaintiff was relatively a novice at skiing.  As part of the ski rental process at the resort, the Plaintiff executed a release or waiver document.

After some time on the “bunny slope,” the Plaintiff and her friend went to ski on other trails on the mountain. 

At some point during the day, when coming down one of the other trails, the Plaintiff came all the way down the hill and was unable to slow or stop allegedly due to icy conditions and missed crashing into the ski racks situated outside of the lodge but skied into the lodge itself. The Plaintiff, who was wearing a helmet, went head first through a glass window of the lodge. 

The Plaintiff alleges that, as a result of the collision, she suffered a broken pelvis and multiple stomach lacerations which have resulted in considerable scarring.

The Plaintiff sued on various theories of negligence. In part, the Plaintiff alleged that the lodge was located too close to the bottom of the trail, that the Defendants failed to provide some sort of stopping mechanism in front of the ski racks in the lodge, and that the Defendants should have installed safety glass in the lodge's windows. The Plaintiff additionally alleged that the trail she came down was mislabeled as a easier or beginner's slope.

The Defendants filed a Motion for Summary Judgment asserting that the Plaintiff’s inability to stop and result an accident where inherent risks of skiing which is deemed to be an assumed risk under the Pennsylvania Skier’s Responsibility Act.

In the alternative, the Defendants alleged that the Plaintiff's claims were barred by the release that the Plaintiff signed at the time she rented the ski equipment.

The Defendants also requested summary judgment on the punitive damages claims asserted.

Judge David J. Williamson of the Monroe County Court of Common Pleas granted the Defendants’ Motion for Summary Judgment, holding in pertinent part, that the Plaintiff’s negligence claims were barred by both the Skier’s Responsibility Act and the liability waiver that the Plaintiff had signed before commencing her skiing activities.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 29, 2025).

ARTICLE: A CAUTIONARY LESSON TO AVOID WAIVER OF ISSUES RAISED AT TRIAL

The below article of mine was published in the Summer of 2024 edition of the Civil Litigation Update (Vol. 27, No. 3) put out by the PBA Civil Litigation Section and is republished here with permission.

A CAUTIONARY LESSON TO AVOID A WAIVER OF ISSUES  RAISED AT TRIAL


By


Daniel E. Cummins, Esq.


A recent decision out of the Philadelphia County Court of Common Pleas serves as a cautionary lesson that, if heeded, will avoid a waiver of issues on appeal in a civil litigation matter.

Not All Pre-Trial Objections Are Preserved

In the case of Wingate v. McGrath, April Term 2019, No. 04637 (C.P. Phila. Co. March 28, 2024 Powell, S.J.), the trial court found that the plaintiffs in this motor vehicle accident litigation had waived their objections to the testimony of the defendant’s medical expert witness by failing to restate the objections that were previously raised plaintiff’s pre-trial motion in limine until after that expert for the defense had testified at trial.

A copy of the Wingate decision can be secured on the author’s Tort Talk blog by going to www.TortTalk.com and typing “Wingate '' into the Search box near the upper right hand corner of the home page of the blog.

According to the Opinion, during the discovery phase of this personal injury litigation, the defendant produced reports from a medical expert who offered an opinion that the plaintiff’s back problems were unrelated to the accident.

As the case approached trial, the plaintiff filed a motion in limine seeking to exclude the defendant’s expert from testifying. At that point, the trial court issued an Order deferring a decision on the pre-trial motion until the time of trial.

However, at trial, the plaintiff did not restate the issues raised in their motion in limine until after the jury had heard the testimony from the defendant’s medical expert. The case proceeded to a verdict and the defense prevailed.

Thereafter, post-trial motions were filed by the plaintiff. In its initial ruling on the post-trial motions, the trial court ruled in part that it had committed error by failing to conduct an analysis of the admissibility of the defense expert’s opinions before the presentation of that testimony at trial.

However, in its later Rule 1925 Opinion further reviewing this issue, the trial court reversed its own decision. The trial court in Wingate stated that “[t]he reason this Court failed to conduct the analysis required…prior to the start of [the defense expert’s] testimony is not because this Court was derelict in its duty; rather, this Court failed to conduct the…analysis because Plaintiffs failed to renew the issue prior to the presentation of [the defense expert’s] testimony at trial.”

In so ruling the court in Wingate relied upon the Pennsylvania Superior Court decision in the case of Blumer v. Ford Motor Co., 20 A.3d 1222 (Pa. Super. 2011), appeal denied 49 A.3d 441 (Pa. 2012). In Blumer, the Superior Court had ruled that “if the trial court defers ruling on a motion in limine until trial, the party that brought the motion must renew the objection at trial or the issue will be deemed waived on appeal.”

As a result, in its Rule 1925 Opinion addressed to the Superior Court, the trial court in Wingate requested the Superior Court to reverse the trial court’s previous decision to grant the plaintiffs a new trial.

The Lesson

The Wingate is just one of many examples of judges seeking to find a waiver of an issue that has been presented for appellate review.

Surely, the filing of pre-trial written motions in limine should ordinarily be sufficient to deem an issue as preserved for appeal. However, if a decision on the motion is deferred by the Court until the time of trial, it is only fair that the burden of making sure a decision on that motion is secured before the issue occurs at trial be placed upon the party who filed that motion.  That party is in the better position to remember to make sure the issue is decided as opposed to the judge with hundreds and hundreds of cases on her or his docket and who is presented with many other issues at the very trial taking place.

The lesson for litigators to recall here is that trial court and appellate court judges are trained to actively look, as a matter of first instance, for waivers of issues as a matter of course in the review of matters before them. Finding a waiver not only allows a judge to avoid additional work, but also serves an important purpose as another way for a judge to preserve a result such that a case does not have to be tried a second time.

Accordingly, litigators should view it as a challenge to raise and re-raise objections as many times as possible so as to make it free and clear from any doubt that the issue has been preserved for further review.

The Wingate decision confirms that issues raised in pre-trial motions that have been deferred for a decision until the time of trial must be raised again. Yet, even if a pre-trial motion limine was decided prior to trial, out of an abundance of caution, the trial attorney should reiterate any rulings therefrom on the record at trial prior to jury selection in order to emphasize favorable rulings or to confirm the plan to appeal adverse rulings. If such pre-trial issues dealt with the testimony of a particular witness, the objections should be restated again prior to the commencement of the testimony of that witness.

Closer to the end of any trial, out of an abundance of caution and with the possibility of irking the judge, a trial attorney should confirm on the record both before closing arguments, and again during that time after the presentation of the jury instructions and before the jury is excused to deliberate, that any and all verbal and written pre-trial and trial objections and issues raised are preserved for appeal.

In the end, the represented client is entitled to have their attorney go above and beyond in the effort to prevail in the case, including with respect to preserving all objections as to how the case has proceeded.

Daniel E. Cummins, Esquire is the managing partner of the Clarks Summit, PA law firm of Cummins Law. Attorney Cummins is a trial attorney who focuses on insurance defense matters.  Attorney Cummins was also one of the Attorney Advisors for the 2024 National Champion High School Mock Trial Team from Abington Heights High School (Clarks Summit, PA), a team that also won the Pennyslvania State Title three out of the last four years. 

Issues in Motion in Limine Deferred By Court Until Trial Must Be Formally Raised Again At Trial

In the case of Wingate v. McGrath, April Term 2019, No. 04637 (C.P. Phila. Co. March 28, 2024 Powell, S.J.), the trial court issued a Rule 1925 Opinion addressed to the Superior Court and requested the Superior Court to reverse the trial court’s previous decision to grant the Plaintiffs a new trial.  

The trial court made this request in this Opinion after the trial court revisited the issue and found that the Plaintiffs had waived their objections to the Defendant’s medical expert witness by failing to renew the issues raised in the Plaintiff’s Pre-Trial Motion In Limine until after that expert for the defense had testified at trial.

According to the Opinion, this case arose out of a motor vehicle accident matter. During discovery, the Defendant produced reports from medical expert who offered an opinion that the Plaintiff’s back pain complaints were unrelated to the accident.

Prior to trial, the Plaintiff filed a Motion In Limine to preclude the Defendant’s expert from testifying. The trial court issued an Order indicating that the motion would be decided at the time of trial. 

However, at trial, the Plaintiff did not restate the issues raised in their Motion In Limine until after the jury had heard the testimony from the Defendant’s medical expert. 

The jury entered a defense verdict.

Although the trial court had initially granted the Plaintiff a new trial after the entry of the defense verdict, in the post-trial proceedings, the trial court ruled in this Rule 1925 Opinion for the Superior Court's review that, under Pennsylvania law, where a decision on a Motion In Limine is deferred by the trial court until the time of trial, a party who presented such a motion is obligated to restate the issues raised at trial in order to have them formally addressed by the trial court.   According to the law cited by this trial court, the failure to re-raise the Motion in Limine issues in a timely fashion at trial results in a waiver of those issues. 

In this regard, the trial court cited to the Pennsylvania Superior Court decision in the case of Blumer v. Ford Motor Co., 20 A.3d 1222, 1223 (Pa. Super. 2011).

As such, in this Rule 1925 Opinion, the trial court requested the Superior Court to reverse the trial court Order that granted the Plaintiff a new trial.

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


Source: “The Legal Intelligencer Common Pleas Case Alert,” Law.com (June 26, 2024).

Case Dismissed Due To Untimely Filed Amended Complaint Being Found to Be a Legal Nullity

In the non-precedential decision by the Pennsylvania Superior Court in the case of Tabb v. Thomas, No. 72 EDA 2022 (Pa. Super. March 2, 2023 Panella, P.J., Stabile, J. and King, J.) (Mem. Op. by Panella, P.J.), the Pennsylvania Superior Court addressed the ability of a Plaintiff to file an Amended Complaint after the time allowable for the same has expired. 

In this case, which arose out of a slip and fall matter, the Plaintiff started the lawsuit with a Writ of Summons and then filed a Complaint. The Defendant responded with Preliminary Objections. When the Plaintiff did not reply to the Preliminary Objections, the court sustained the same and dismissed the Plaintiff’s Complaint.

Thereafter, without leave of court, or agreement or consent of the Defendant, the Plaintiff filed an Amended Complaint raising essentially the same claims. The Defendant again filed Preliminary Objections raising the same issues as raised before and adding an argument that Amended Complaint was untimely filed and that the Plaintiff had failed to seek the leave of court or the Defendant’s agreement prior to the filing of the Amended Complaint.

In response, the Plaintiff filed a Second Amended Complaint, again without the permission of the trial court or the agreement of the Defendant. The Defendant responded with Preliminary Objections again.

Thereafter, the Plaintiff filed a Third Amended Complaint, again without the permission of the trial court or the agreement of the Defendant. The Defendant raised the same arguments in his Preliminary Objections, again asserting that the Plaintiff had failed to seek leave of court or the Defendant’s agreement to file the additional Amended Complaint. 

The trial court sustained the Defendant’s Preliminary Objections in this regard, finding that the Plaintiff had failed to seek leave of court or the agreement of the Defendant to file the Amended Complaint. The court also held that the Amended Complaints were void and should be stricken. As such, the case was dismissed by the trial court with prejudice. The Plaintiff then filed this appeal.

On appeal, the Pennsylvania Superior Court affirmed the dismissal of the case by the trial court.

The Superior Court rejected arguments by the Plaintiff that what was before the court were mere technical errors that the Plaintiff should not be punished for due to his counsel’s failure to strictly adhere to the court rules. 

The Superior Court also rejected an argument by the Plaintiff that amendments to allegations in a Complaint must be liberally allowed to secure a speedy determination of the action. 

The Superior Court additionally rejected the Plaintiff’s arguments that the Amended Complaint should be allowed as the Defendant did not suffer any prejudice given that the Defendant was aware of the claims presented.

The trial court additionally rejected the Plaintiff’s separate argument that, even though the trial court struck the various Amended Complaints, the original Writ of Summons remained valid such that the Plaintiffs should be allowed to further litigate the Writ.

In so ruling, the Pennsylvania Superior Court confirmed that a Plaintiff has an automatic right to amend the Complaint within twenty (20) days of the filing of a Defendant’s Preliminary Objections as per Pa. R.C.P. 1028(c)(1).

The Superior Court also noted that, if the Amended Complaint is not filed within twenty (20) days, the Plaintiff must obtain either the Defendant’s consent or leave of court to file an Amended Complaint under the mandate of Pa. R.C.P. 1033(a).

In this matter, the Pennsylvania Superior Court held that, given that the Plaintiff did not ever request leave of court to file an Amended Complaint nor the consent of the Defendant to do the same, the Plaintiffs later filed Amended Complaint was a legal nullity.

The court rejected the Plaintiff’s argument that the trial court had and an obligation to sua sponte allow an amendment of the Complaint.

Given the Plaintiff’s failures, the Superior Court in Tabb agreed with the trial court's ruling and upheld the finding that that the Plaintiff had waived his claims under the circumstances presented. 

Given that the Plaintiff is found to have waived his claims, the appellate court affirmed the trial court’s dismissal of the case with prejudice.

Although the Tabb decision was listed as non-precedential, the Superior Court cited to the Pennsylvania Rules of Civil Procedure and precedential appellate court decisions on point to support its decision in this matter.    

Anyone wishing to review this non-precedential decision of the Pennsylvania Superior Court in the case of Tabb v. Thomas may click this LINK.

Source: “Pennsylvania Civil Law Case Alerts Issued by Fastcase.com.” (March 4, 2023).

Source of image:  Photo by Jon fabrikasimf on www.freepik.com.

Judge Mannion of Federal Middle District Addresses Motion for Summary Judgment in a Skiing Accident Case

In the case of Mattei v. Tuthill Corp., No. 3:19-CV-2196 (M.D. Pa. Feb. 28, 2023 Mannion, J.), the court denied a Defendant’s Motion for Summary Judgment in a case arising out of a skiing accident. 

As noted by Judge Malachy E. Mannion at the outset of his Opinion, this case raised questions as to the inherent risks of downhill skiing, the enforceability of releases on lift tickets, and the legal sufficiency of the facts alleged by the Plaintiff relative to the Defendant's alleged gross negligence and recklessness.

The court reviewed the terms of the Pennsylvania Skier's Responsibility Act and ruled that the “no duty” rule relieving ski resorts of liability under the Act for common and inherent risk attendant with skiing was in dispute in this matter because it was unclear as to whether the Plaintiff was skiing on or off a designated trail at the Blue Mountain Resort in the Poconos.  

Judge Malachy E. Mannion additionally noted that there was other conflicting evidence as to whether the hazard at issue was perceptible to skiers.

The court found that whether a certain danger is perceptible to skiers is generally relevant to the question of whether that risk is inherent to downhill skiing.

The court additionally found that the Defendant had not proven that the Plaintiff’s negligence claims were barred by the exculpatory release contained on the back of the lift ticket.

Judge Mannion noted that, in this case, the lift ticket was an exemplar. There was no other proof offered beyond a disputed inference that the Plaintiff actually received a lift ticket.

Given that the court also found that there were genuine issues of material fact relative to the Defendant’s alleged gross negligence and recklessness involving an alleged conscious disregard of the risk of harm allegedly posed by an alleged five foot ditch on the ski trail, summary judgment was denied.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE


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

Source of image:  Photo by Mati Mango on www.pexels.com.

Pennsylvania Supreme Court Now Says That Household Exclusions Can Be Valid and Enforceable

In the case of Erie Ins. Exchange v. Mione, No. 89 MAP 2021 (Pa. Feb. 15, 2023) (Op. by Wecht, J.), the court addressed the enforceability of two (2) household vehicle exclusions in a pair of automobile insurance policies.  In the end, whereas the Pennsylvania Supreme Court previously ruled that household exclusions are unenforceable, that Court has now held that household exclusions do remain enforceable under Pennsylvania law in certain circumstances.

In its previous decision in the case of Gallagher, the Pennsylvania Supreme Court wrote “we hold that the household vehicle exclusion violates the MVFRL; therefore, these exclusions are unenforceable as a matter of law.”  Gallagher v. GEICO Indem. Co., 650 Pa. 600, 613, 201 A.3d 131, 138 (2019).

According to the Pennsylvania Supreme Court in this Mione decision, the courts below had held that the household exclusions were valid and enforceable and had cited to the Supreme Court’s previous decision in the case of Eichelman v. Nationwide Ins. Co., 711 A.2d 1006 (Pa. 1998).   

In this Mione case, the insureds contended that the lower courts had erred in applying Eichelman and argued that the Pennsylvania Supreme Court sub silentio overruled that decision in the Pennsylvania Supreme Court’s decision in Gallagher v. Geico, 201 A.3d 131 (Pa. 2019).   

Although the Pennsylvania Supreme Court in the previous case of Gallagher v. Geico, and again in the case of Donovan v. State Farm, attempted to eradicate the household exclusion across the board, in this decision of Erie Ins. Exchange v. Mione, the Pennsylvania Supreme Court rejected the insured’s arguments, distinguished its previous decision in Gallagher v. Geico and affirmed the lower court decisions that the household exclusions were valid and enforceable. 

In this Erie Ins. Exchange v. Mione case, Erie had asserted that the Gallagher decision as factually distinguishable because the insureds had waived UM/UIM coverage on the insured’s motorcycle policy, whereas the insured in Gallagher did not waive coverage.

The Pennsylvania Supreme Court in this Mione case accepted that argument and noted that the insureds in this case were not attempting to stack anything between the various automobile insurance policies available.   

The Pennsylvania Supreme Court in Mione noted that the insureds had not yet received any UIM benefits but that the insured’s theory was that one or both of the household policies that possessed could provide them with UIM coverage in the first instance as opposed to in conjunction with another policy.   The Pennsylvania Supreme Court found that the “problem” with that argument is that the policies at issue had valid household exclusions which, under the facts of this case, the Pennsylvania Supreme Court found, in a 6-0 decision, did not conflict with the MVFRL.   

In other words, unlike as was found in the Gallagher decision, the household exclusions in this Mione case did not act as de facto waiver of stacking.   In other words, because the insureds in this case were not attempting to stack UIM benefits from the other household policies on top of the UIM benefits from their motorcycle policy, the rules for waiving stacking in writing found under 75 Pa. C.S.A. §1738, which were the basis for the court’s decision in Gallagher, were not implicated.  See Op. at 9-10.   

Although, as confirmed above, the Pennsylvania Supreme Court decision in Gallagher attempted to phrase that decision as eradicating the household exclusion across the board and never limited the decision to the facts before the Court in that matter, in this Mione decision, Justice Wecht noted that the Court “reiterate[s] today that the holding in Gallagher was based upon the unique facts before [the court] in that case, and that the decision there should be construed narrowly.”  See Op. at 10.   [Bracket inserted here].

Although the Pennsylvania Supreme Court stated otherwise in the Gallagher decision, Justice Wecht also stated in the Mione decision that the Pennsylvania Supreme Court “continue[s] to reject the view that household vehicle exclusions are ipso facto unenforceable.”  See Op. at 12.   

In the end, the Pennsylvania Supreme Court in Mione ultimately concluded that the lower courts correctly distinguished the Gallagher decision from the facts in this case and correctly enforced the household exclusions contained in the insured’s automobile insurance policies.   

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

Source of image: Photo by Andrea Piacquadio on www.pexels.com.

Issues of Fact Preclude Entry of Summary Judgment in Case of Slip and Fall Sustained by Ice Skater

In the case of Murphy v. Pines, No. 3:20-CV-00320 (M.D. Pa. Nov. 21, 2022 Saporito, M.J.), the court denied summary judgment after finding genuine issues of material fact existed on whether the Plaintiff, an experienced skater, was entitled to a recovery when she slipped and fell while skating on ice.  The court noted that the Plaintiff had never before skated on synthetic ice.   

In his Opinion, Judge Joseph F. Saporito, Jr., noted that, while falling while ice skating is an inherent risk of that activity, the risks of alleged damaged surfaces are not.  The court found that the issue of assumption of the risk was for the jury to decide under the conflicting facts presented in this case.   

The court also addressed the “no duty” rule.  While the court noted that the “no duty” rule precludes liability for injuries from risk that are common, frequent, expected, and inherent in a sporting activity, and while that rule can apply when the assumption of the risk doctrine does not, the court found that issues of fact in this case prevented the entry of summary judgment in favor of the Defendant.

Judge Joseph F. Saporito, Jr.
M.D. Pa.

Judge Saporito additionally addressed separate arguments raised relative to the scope and impact of the release that was signed by the Plaintiff prior to engaging in the ice skating activity at the facility.  

The court noted that the release language was boilerplate and was only located on a rental receipt.  The language was not conspicuous and was never explained to the Plaintiff or even brought to the Plaintiff’s attention.   As such, given these issues, the court ruled that the issue of whether the Release was effective to preclude a recovery would be left for the jury’s consideration. 

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. 

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

Pennsylvania Supreme Court Rules Bike Race Exculpatory Release Invalid as to Municipality's Liability

In the case of Degliomini v. City of Philadelphia, No. 5 EAP 2020 (Pa. June 22, 2021) (Majority Op. by Doughterty, J.), Pennsylvania Supreme Court, in a 4-3 decision reversed a Commonwealth Court decision and ruled that an exculpatory release signed by a participant in a charity bike ride through the City of Philadelphia did not serve to immunize the city for allegedly breaching its duty to repair and maintain the public streets. 

According to the Opinion, this incident arose out of a twenty mile bike ride through the streets of Philadelphia. The injured party allegedly crashed into an unmarked and unbarricaded sink hole and was severely injured as a result.

Pennsylvania Supreme Court ruled that, because the release signed by the injured party would allow the city to give itself immunity for the claims presented, the release was found to prohibit what the Tort Claims Act expressly allowed and would impermissibly achieve for the city what Pennsylvania law plainly prohibited.

The Court ruled that the definitive policy to remove the shield of immunity for a municipality’s negligence in the maintenance or repair of dangerous street conditions for which a municipality has proper notice could not be set aside and rendered unenforceable by a contract between individuals. 

As such, the Majority of the Supreme Court found that the release at issue was invalid in this case because it contravened public policy.

Anyone wishing to review a copy of the Majority's decision may click this LINK.  The Dissenting Opinion by Chief Justice Baer can be viewed HERE.


Source: Article: “Pa. Justices: Release Can’t Shield Phila. From Suit Over Cyclist’s Crash,” Pennsylvania Law Weekly (June 29, 2021).

Source of image:  Photo by Quino Al on unsplash.com

Fitness Club's Exculpatory Clause Upheld to Defeat Plaintiff's Personal Injury Claim

In the case of Cifarelli v. RKKB Capital Partners Corp., No. 9626-CV-2019 (C.P. Monroe Co. March 1, 2021 Zulick, J.), the court granted a Defendant fitness facility’s Motion for Summary Judgment in a matter in which a Plaintiff fell while using a treadmill.

According to the Opinion, the Plaintiff was using a treadmill when the treadmill mat slipped off its track, causing the Plaintiff to fall and suffer injuries.   

The Plaintiff filed suit against the gym. In its Answer and New Matter, the gym raised a defense of a release. 

According to the Opinion, the Plaintiff had signed a membership agreement in which she agreed to release the fitness center from liability for injuries she suffered on the premises due to negligence.   

Judge Zulick noted that, in a number of cases involving fitness club agreements, the Pennsylvania appellate courts have consistently held that exculpatory provisions violate public policy only when they involved a matter of interest to the public or the state.   The court cited examples such as cases involving employer/employee relationships, public utilities, common carriers, and hospital. 

The court noted that the Plaintiff had signed a membership agreement for a gym or health club.  The court noted that the Plaintiff was free to refuse to sign the release and to look elsewhere for fitness activities.   

By signing the agreement, the Plaintiff agreed that she understood that she was giving up important legal rights and that the contract would be a full release of liability for injury.   

The court also rejected the Plaintiff’s attempt to get around the release by arguing reckless conduct.   While the court agreed that an attempt in a release to avoid liability for reckless conduct is not enforcement as a violation of public policy in Pennsylvania, the case at hand did not contain facts supporting a claim of reckless conduct.  

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

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 23, 2021). 

I also send thanks to Attorney Daniel D. Stofko of the Scranton, PA office of Margolis Edelstein for bringing this case to my attention.

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Filing Entry of Appearance and Demand for Jury Trial in Federal Court Does Not Result in Waiver of Service of Process Defenses

In the federal court case of Orner v. International Laboratories, Inc., No. 1:20-CV-00449 (M.D. Pa. Nov. 16, 2020 Wilson, J.), the court denied a Motion to Dismiss.

Notably, the court ruled that the filing of an Entry of Appearance and a Demand for a Jury Trial does not waive objections that a Defendant may have to any issues surrounding service of process.

In any event, the court found that the service of process in this matter was successful. 

This decision is also notable for the court's rulling that a Plaintiff may serve the Defendant with the original state court process even after the Defendant had removed the action to federal court.

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 Reid Smith law firm for bringing this case to my attention.

Make Sure You Preserve Objections At Video Deposition of Doctor For Trial

In the case of Talmadge v. Ervin, No. 1070 MDA 2019 (Pa. Super. July 28, 2020 Stabile, J., Lazarus, J., and Stevens, P.J.E.) (Op. by Stabile, J.), the court reversed a Plaintiff’s Post-Trial Motions after the entry of a verdict in favor of the defense in a medical malpractice case. 

This Opinion offers a cautionary tale on asserting objections at trial depositions of experts. 

The Superior Court ruled that the Plaintiffs should have been allowed to introduce a hearsay document at trial concerning the amount of a drug that the decedent had taken because the defense counsel did not make a sufficient objection to that document at the trial deposition where the document was introduced. It was noted that the parties did not enter into any stipulation at the deposition to reserve any objections until the time of trial. 

The court noted that, since the amount of the drug that the decedent had taken was an important issue in the case, the exclusion of that evidence could not have been harmless error. 

The court referred the case back for a retrial and noted that the Defendant may reassert the hearsay objection at the retrial. 

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.

Jurisdictional Issue Found To Have Been Waived

In the case of Murray v. Am. LaFrance, LLC., No. 2020 Pa. Super. 149 (Pa. Super. June 25, 2020) (Op. by Bowes, J.), the Pennsylvania Superior Court that the Plaintiffs had waived the effort to establish general personal jurisdiction over a Defendant based upon the Defendant’s registration as a foreign corporation in Pennsylvania.  

The appellate Court found that the Plaintiff failed to raise the issue in response to the Defendant’s Preliminary Objections on the issues presented. 

This matter arose out of claims by the Plaintiff against a foreign corporation for negligence and strict products liability under claims that the Plaintiff suffered injuries due to excessive sound exposure from fire engine sirens that the Defendant company, which was a Delaware company, had manufactured in Illinois, which was where its principal place of business was located. 

The Defendant filed Preliminary Objections to personal jurisdiction and submitted documents to show that only four (4) of its employees resided in Pennsylvania and that only 3.5% of its total sales in 2015 were made to Pennsylvania buyers. 

The trial court had sustained the Preliminary Objections and dismissed the claim after finding that the foreign corporation’s alleged contacts with Pennsylvania were not so continuous and symptomatic to support the exercise of general personal jurisdiction. 

On appeal, the Plaintiffs argued that general personal jurisdiction over the Defendant was proper given the Defendant’s registration as a foreign corporation in Pennsylvania. However, given that the Plaintiff had failed to raise this issue at the trial court level, the Pennsylvania Superior Court affirmed the trial court’s ruling on the separate basis that the issues presented had not been preserved for appeal. 

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

Source: “Digest of Recent Cases.” Pennsylvania Law Weekly (July 6, 2020).

Important Issue of Jurisdiction Found To Have Been Waived

In the case of Murray v. American LaFrance, 2020 Pa. Super. 149 (Pa. Super. June 25, 2020) (en banc) (Op. by Bowes, J.), the en banc Pennsylvania Superior Court addressed whether Pennsylvania has general personal jurisdiction over a Delaware company with its principal place of business in Illinois exclusively due to the Defendant’s 1969 registration with the Pennsylvania Department of State as a foreign corporation pursuant to 15 Pa. C.S.A. §411(a). 

The en banc panel ruled that the Plaintiff failed to properly preserve this issue of jurisdiction before the trial court and, as such, the en banc panel found that the issue was not preserved. 

This was a case that many were watching to determine the validity of the argument that the 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. Based on this decision, litigants will have to await another day for the issues to be decided.

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

Source: “Waiver Issue Sinks Dispute Over Whether Pa.’s Registration Law Establishes Jurisdiction” by Max Mitchell, Pennsylvania Law Weekly (June 25, 2020).

Computer Glitch With Jury Questionnaires Leads Court to Overturn $800,000 Jury Verdict

In the case of Escalante v. State Farm, No. 3746-Civil-2018 (C.P. Monroe Co. June 2, 2020 Sibum, .J), the trial court vacated an $800,000.00 verdict in favor of the Plaintiff in a UIM case after finding that a computer glitch may have affected jury questionnaires that the attorneys used to select the jury. 

According to the Opinion, the glitch was not detected until after the jury handling the Escalante case handed down their verdict. The court noted that the potentially problematic jury questionnaires were destroyed in accordance with state law and there was no way to tell how severely the court’s computer glitch may have affected the trial. As such, the court rejected the Plaintiff’s argument that the verdict should be allowed to stand, in part, because the defense did not raise the issue in a timely fashion.

The Opinion noted that this was a court wide issue that also affected other matters, including leading to three (3) mistrials in criminal cases.

The glitch involved a transcription error that occurred when the court upgraded from Windows 7 to Windows 10 before the trial term. The glitch made it such that corresponding questions and answers on the jury’s questionnaire would appear out of alignment when printed.

According to the Opinion, the defense had filed post-trial motions prior to the court being notified of the computer glitch. Thereafter, during an argument session on the post-trial motions, the court advised the parties about the glitch and allowed for additional briefing.

Shortly thereafter, the defense filed a second post-trial motion, citing the jury selection error. Part of the Plaintiffs’ argument was that State Farm should have raised the issue earlier as the glitch, and the three (3) criminal court mistrials had been reported in the local media.

As noted, Judge Sibum rejected the Plaintiff’s waiver argument. The court found that it would further the interests of “fundamental fairness” for the court to consider all of the defense post-trial motions.

The court also rejected the Plaintiff’s argument that any jury selection questionnaire issues should be considered to have been waived since the defense was given an opportunity to ask any questions at voir dire that would have revealed any problems with the jurors.'s 

The court ruled that a jury questionnaire are intended to be a tool for the court and the parties to facilitate and expedite the voir dire process. To accept the Plaintiff’s argument would render the purpose of juror questionnaires “pointless.” As such, this argument was not accepted by the court.

In the end, the trial court ordered this UIM matter to be retried.

In an article by Max Mitchell from the Pennsylvania Law Weekly, entitled “Court Axes $800K UIM Verdict After Computer Glitch Affects Juror Questioning,” which is the source of the tip on this case, the Plaintiffs were noted to voice an intention to appeal the trial court's decision to the Superior Court and, if necessary, to the Supreme Court of Pennsylvania.

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

UPDATE:  In a non-precedential decision issued on August 26, 2021, the Pennsylvania Superior Court affirmed the lower court's decision.  That Superior Court decision can be viewed HERE.

Skiing Accident Case Survives Summary Judgment

In the case of Kozlowski v. JFBB Ski Areas, Inc., No. 3:18-cv-353 (M.D. Pa. Dec. 12, 2019 Mariani, J.), the court addressed a Motion for Summary Judgment filed on behalf of a Defendant in a case arising out of a skiing accident that occurred at the Big Boulder Ski Resort. The Plaintiff filed a Complaint alleging a claim of negligence and a count in gross negligence/recklessness.

In his Complaint, the Plaintiff alleged that he was skiing at Big Boulder ski resort and, as it came to an intersection of trails, he followed tracks which led to an embankment at the edge of a catwalk. The Plaintiff additionally alleged that, as he skied down the embankment, he suddenly and unexpectedly collided with partially exposed snowmaking pipes which alleged could not be seen from a reasonable safe distance in the area where he was skiing. The Plaintiff alleges injuries as a result.

Before the court was a Motion for Summary Judgment by the Defendant asserting that the Plaintiff’s claims were barred by the Pennsylvania Skier’s Responsibility Act, the common law construing that act, and the release found on Big Boulder’s ski lift ticket.

The court denied the motion on various grounds.

Relative to the defense claim that the Plaintiff’s negligence count was barred by the assumption of risk doctrine as bound under the Skier’s Responsibility Act, the court noted that the Defendant had not established, as a matter of law, that the risk at issue (colliding with hidden snowmaking pipes) is inherent in the sport of downhill skiing.

On the claims of gross negligence and/or recklessness, the court decided that judgment could not be entered on the current record as the case was not entirely free from doubt. As such, the court allowed this issue to go to the jury. 

Relative to the validity of the Release language contained on the Big Boulder lift ticket, the court noted that, since it had ruled that the question of gross negligence and/or recklessness could not be determined that this stayed the proceeding, the validity of the lift ticket release provision, and whether it applied to claims of gross negligence and recklessness, also could not be determined on the current record before the court. 

For these reasons, the court denied the Motion for Summary Judgment filed by the Defendant.

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

Pennsylvania Supreme Court Holds That Exculpatory Release Invalid as to Claims of Gross Negligence and Recklessness

The Pennsylvania Supreme Court affirmed the Pennsylvania Superior Court’s decision and ruled in the case of Feleccia v. Lackawanna College, 75 MAP 2017 (Pa. Aug. 20, 2019)(Op. by Dougherty, J.)(Wecht, J., Concurring and Dissenting)(Saylor, J., Concurring and Dissenting), that a waiver of liability in a release form is unenforceable with regards to claims of gross negligence and recklessness.

The case arose out of injuries sustained by two university football players during practice.

More specific to the facts at hand before it, the Court held that a university had a special relationship with its student athletes such that the university "had a duty to provide duly licensed athletic trainers for the purpose of rendering treatment to its student athletes participating in athletic events."

The Majority Opinion by Justice can be viewed HERE

Justice Wecht's Concurring and Dissenting Opinion can be viewed at this LINK.

Chief Justice Saylor's Concurring and Dissenting Opinion can be viewed HERE.


I send thanks to Attorney Paul Oven of the Moosic, PA office of the law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Trial Court Rules that Appellate Issues Waived

In the case of U-Save Auto Rental of Lansdale, Inc. v. Highline Auto. Group, No. 2016-CV-06620  (C.P. Montg. Co. April 23, 2019 Rogers, J.), the trial court wrote a Rule 1925 Opinion for the appellate court asserting that the trial court’s decision that the Defendant had waived all issues on appeal should be upheld.  

This matter arose out of a breach of contract case involving a business consultation contract.   

In this matter, the Defendant failed to file a post-trial motion after a bench trial.   The court noted that the failure to file a post-trial motion under Pa.R.C.P. 227.1 generally resulted in a waiver of all issues on appeal.  

The trial court additionally noted that the Defendant failed to file a Concise Statement of Errors Complained of on Appeal in a timely fashion.   The court noted that, absent any applicable exception to the general rule, the failure to comply with the requirements of Pa.R.A.P. 1925(b), pertaining to the requirement to file Concise Statement of Errors on Appeal when ordered to do so by the court also resulted in an automatic waiver of all issues on appeal.  

In its Rule 1925 Opinion, the trial court urged the appellate court to quash the Defendants’ appeal.  

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

Source:  “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 21, 2019).