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.

Vehicle Exception to Commonwealth Immunity Reviewed by Commonwealth Court

In the case of Brown-Boyd v. SEPTA, No. 1167 C.D. 2022 (Pa. Cmwlth. July 15, 2024 Wojcik, J., Wallace, J., Leavitt, S.J.) (Op. by Wallace, J.), the Commonwealth Court affirmed the trial court’s decision denying SEPTA's Motion for Summary Judgment which was based on an argument that SEPTA was immune from suit under the Political Subdivision Tort Claims Act.  

In this case, the Plaintiff prevailed in convincing both the trial court, and the Commonwealth Court on appeal, that the facts implicated the vehicle exception to the immunity provided by the Act.

The vehicle exception to the general rule of immunity for municipal defendants provides that a Commonwealth entity may be found liable for acts resulting in damages caused by the "operation of any motor vehicle in the possession of a Commonwealth party."  See 42 Pa.C.S.A. Section 8522(b)(1).

The appellate court here affirmed the trial court's finding that the defendant bus driver was “operating” a bus for purposes of the motor vehicle exception of the sovereign immunity statute when the bus driver stopped to allow the Plaintiff to exit and allegedly refused to lower the bus’s handicap ramp which allegedly resulted in the Plaintiff falling and being injured. 

The appellate court noted that, under established case law, the “operation” of a motor vehicle covers more than simply moving the vehicle. Instead, this term also covers a variety of activities as well as the decision-making processes related to moving a vehicle.

The court primarily relied upon the plain language of the statute and the Pennsylvania Supreme Court’s discussion of the statute in the case of Balentine v. Chester Water Auth., 191 A.3d 799 (Pa. 2018). 

The court noted that, under this legal authority, the “operation” of a vehicle under this exception would include both acts and failures to act, including the Defendant bus driver’s allegedly failure in this case to lower the handicap ramp for the benefit of the Plaintiff.  In the end, the court found that the Defendant bus driver was “operating” the bus when the bus driver stopped to allow the Plaintiff to exit and allegedly refused to lower the handicap ramp.

As such, the appellate court concluded that the trial court did not err in denying the Defendants’ summary judgment motion pursuant to the vehicle exception to the sovereign immunity law.

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


Source: “The Legal Intelligencer State Appellate Case Alert,” ww.Law.com (July 31, 2024).

ARTICLE: Pa. High Court Shows Continuing Signs of Moderation With Regular Use Exclusion Holding

The below article of mine was published by the Pennsylvania Law Weekly on February 29, 2024 and is republished here with permission.

Daniel E. Cummins
Cummins Law

Pa. High Court Shows Continuing Signs of Moderation With Regular Use Exclusion Holding

February 29, 2024

By Daniel E. Cummins 

On Jan. 29, the Pennsylvania Supreme Court issued its long-awaited and much anticipated decision in the regular use exclusion case of Rush v. Erie Insurance Exchange, No. 77 MAP 2022 (Pa. Jan. 29, 2024)(Maj. Op. by Donohue, J.)(Concurring Op. by Wecht, J.) and, in doing so, seemed to signal a possible continuing movement away from its previous penchant for advancing plaintiffs’ causes in personal injury matters and toward a more reasoned, moderate approach to civil litigation questions of law.

Over the past five years or so, the Pennsylvania Supreme Court had handed down decision after decision, along with important civil litigation rule changes, that all largely advanced plaintiffs’ abilities to recover more and more compensation in a wider variety of circumstances.

More specifically, the Pennsylvania Supreme Court allowed for more liberal venue Rules of Civil Procedure for medical malpractice actions and also issued rules allowing for increased recoveries on appeals from personal injury arbitration proceedings. The court additionally issued decisions that seemed to relax venue rules for internet-based defamation claims (Fox v. Smith) and other types of personal injury claims. The Pennsylvania Supreme Court also issued decisions that expanded the plaintiff’s ability to recover from governmental entities (Cagey v. PennDOT and Balentine v. Chester Water Authority) and automobile insurance carriers (Gallagher v. Geico).

More recently, however, in 2023 the Supreme Court began to show signs of moderation with its decisions in the civil litigation arena. In the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Pennsylvania Supreme Court, without acknowledging that it was doing so, stepped significantly back from its previous effort in the Gallagher v. Geico case to eradicate the household exclusion found in automobile insurance policies as void and unenforceable across the board. In Mione, the court 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 another recent decision evidencing moderation on the part of the court, in the case of first impression of Franks v. State Farm Mutual Automobile Insurance, 292 A.3d 866 (Pa. April 19, 2023) (Op. by Mundy, J.), the court issued a decision that favored insurance carriers by ruling 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).

Now, with its January, 2024 decision in the case of Rush, the Pennsylvania Supreme Court has ruled that, as presented in this case, the regular use exclusion contained in motor vehicle insurance policies does not violate the express language of Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL).

The plaintiff in Rush was a police officer who was injured in a motor vehicle accident while driving his police vehicle at work. The plaintiff recovered the liability limits from the tortfeasor’s policy as well as the UIM limits that were available on the police vehicle.  

The plaintiff then sought to obtain additional recoveries from the Erie Insurance policies that covered his personal vehicles at home. Erie Insurance relied upon a regular use exclusion contained in the policy that covered the plaintiff’s personal vehicles to deny coverage on the additional UIM claim.

The trial court and the Pennsylvania Superior Court had ruled, in part, that the regular use exclusion violated the provisions of the MVFRL, and in particular, the terms of 75 Pa.C.S.A. Section 1731.  

More specifically, the lower courts had held that the regular use exclusion conflicted with the language of Section 1731′s mandate requiring the provision of UIM coverage to insureds in that the exclusion limited the scope of the coverage provided by Section 1731 by precluding coverage if an insured is injured while using a motor vehicle that the insured regularly used but did not own.

As noted, in its Rush decision, the Pennsylvania Supreme Court reversed the lower courts’ decisions and upheld the validity and enforceability of the regular use exclusion.

In so ruling, unlike what it did in its Gallagher v. Geico decision on the validity of the household exclusion, the Pennsylvania Supreme Court pointed to prior decisions it had rendered in which it had repeatedly upheld the validity of the regular use exclusion. The court found the plaintiff’s arguments in this Rush case to be a mere recitation of at least one of the same arguments that had been previously rejected by the court in its prior decisions relative to the validity of the regular use exclusion.

The Pennsylvania Supreme Court rejected the plaintiff’s argument that the MVFRL required that UIM coverage must be provided in all circumstances regardless of which vehicle the injured party was located in at the time of the accident. The court noted that, to accept such an argument would render all exclusions invalid.  

The Supreme Court also rejected the plaintiff’s reliance upon the Pennsylvania Supreme Court’s decision in Gallagher v. Geico for the proposition that the regular use exclusion should be eradicated across the board just as the household exclusion had been eradicated in Gallagher as a allowing for a de facto waiver of stacked coverage when the MVFRL instead required the carrier to secure a written waiver of coverage from its insureds.

In this Rush v. Erie Insurance Exchange case, the Pennsylvania Supreme Court confirmed that it had previously clarified and narrowly limited its Gallagher decision in its more recent decision in the case of Erie Insurance Exchange v. Mione.  

Here, in Rush v. Erie Insurance Exchange, the Supreme Court ruled that “if the MVFRL does not require that UIM coverage follow the insured in all circumstances, then the MVFRL cannot be read to prohibit exclusions from UIM coverage.” As such, the court ruled that the terms of the UIM insurance contract between the parties still controlled relative to the scope of the UIM coverage available, or not available, and that, therefore, the regular use exclusion remained enforceable.  

The language utilized by the Pennsylvania Supreme Court seemed to indicate that it had heard the criticisms of some commentators regarding the apparent judicial activism of the court in favor of the plaintiff’s causes to the point where the court was arguably enacting changes in the law that would ordinarily come from the legislative branch of the court. In specifically holding that the regular use exclusion remained a permissible limitation of UIM coverage within the language of the MVFRL, the Pennsylvania Supreme Court wrote in Rush that, “with … no justification to allow this court to depart from decades of established law” that civil litigators had relied upon, the court held that it would maintain its continued course on this issue “unless and until the General Assembly or the insurance department acts in a way that would suggest we do otherwise.” 

Ultimately, contrary to its previous penchant to chart new avenues of recovery for injured plaintiffs regardless of established judicial precedent on the books for decades, the Pennsylvania Supreme Court implicitly acknowledged the continuing validity of the doctrine of stare decisis by stating that it was “bound by our prior decisions” to overrule the lower court decisions and hold that the regular use exclusion remained valid and enforceable.

Having previously shown a willingness to make startling changes in the status quo of civil litigation jurisprudence, but now showing signs of moderation, it will be interesting to see where the Pennsylvania Supreme Court goes from here in its handling of personal injury civil litigation 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.

Reprinted with permission from the February 29, 2024 edition of 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.

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.

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.

Judge Zulick of Monroe County Interprets Law of Balentine Decision

In the case of Martinez v. Swain, No. 9383-CV-2019 (C.P. Monroe Co. Feb. 6, 2020 Zulick, J.), Judge Arthur K. Zulick of the Monroe County Court of Common Pleas issued one of the first decisions since the previous Pennsylvania Supreme Court holding in the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), regarding the governmental immunity afforded to municipalities and the issue of an exception applying to the “operation of a vehicle.”

 In this matter, the Complaint alleged that the Plaintiff was struck by another vehicle while she was crossing the street to gain excess to a passenger bus, which had stopped in an area outside of a destinated bus stop.

The Defendant bus company filed Preliminary Objections asserting that, since it was not the bus that hit the Plaintiff, but rather another vehicle, the ‘operation of the bus’ was not the cause of the Plaintiff’s alleged injuries and, therefore, the alleged conduct on the part of the municipality that ran the bus route could not fall within the exception to governmental immunity.

The Plaintiff argued that, by stopping the bus and inviting the Plaintiff to get onto the bus would fit with in the scope of newly defined ‘operation of a vehicle’ under the Balentine decision issued by the Pennsylvania Supreme Court, which overruled the thirty (30) years of precedent in issuing that decision.

Judge Zulick followed the rule of the Balentine case and overruled the Preliminary Objections under the facts presented since the bus driver knew, or should have known, that the Plaintiff would try to gain access to the bus, that stopping the bus in such an area would allegedly place the Plaintiff in a danger being struck be oncoming traffic, and given that the Plaintiff allegedly would not discover moving vehicles on the road as she attempting to cross the street to get to the bus.

Anyone wishing to review Judge Zulick’s detailed Order, without Opinion, may click this LINK.

I send thanks to Attorney Michael J. McKarski of the Bethlehem, Pennsylvania law office of Edward J. McKarski for bringing this case to my attention.

Quoted in Article About Analysis of Recent Pennsylvania Supreme Court Decisions

Here is a reprint of a December 23, 2019 article by Max Mitchell of the Pennsylvania Law Weekly in which he called me for some thoughts on the impact of recent Pennsylvania Supreme Court decisions on important civil litigation issues.

Drifting Away From Precedent?: Some See Pa. Supreme Court Upending Established Case Law
By Max Mitchell | Pennsylvania Law Weekly 

December 23, 2019

At the beginning of 2019, Pennsylvania Supreme Court Justice David Wecht issued an opinion in the closely watched case Gallagher v. Geico in which he decried what he saw as the court “upending … well-established precedent” and supplanting its own judgment over that of the legislature.

It was not the only time the justice sparred with the other members of the court about their perceived departures from precedent, and in late October, he distanced himself again from the court’s ruling in another high-profile case—this time in Yanakos v. UPMC—saying that the majority’s standard for reviewing the issue was “contrary to our precedent” and “encroach[ed]” on the legislature.

Wecht’s words serve to highlight what some court watchers have observed as the current make-up of the court’s willingness to reconsider, and in some cases diverge from, longstanding precedent. Although some legal observers dispute why and the degree to which the court has scrapped precedent compared to other iterations of the high court, attorneys who monitor the body largely agree the court has not been shy about looking at issues in a new light.

According to Scranton-based insurance defense attorney Daniel Cummins of Foley, Comerford & Cummins, the past few years have marked a “new era” of the court.

“The Supreme Court has become like a snowplow truck, clearing precedent off the highway of Pennsylvania law and dropping salt as it passes by to melt away any remnants of the law as we knew it,” Cummins said, specifically regarding the Gallagher decision.

According to Cummins, that ruling was the latest in a line of cases overturning precedent that included 2018′s Balentine v. Chester Water Authority, which expanded the exception to governmental immunity by holding that involuntary movement of a vehicle constituted an “operation,” and Cagey v. PennDOT, in which the court limited the Pennsylvania Department of Transportation’s immunity from suits involving guardrails.

After the justices ruled in Yanakos, Cummins said that was another example of the court diverging from longstanding precedent.

“That’s going to change the course of Pennsylvania law going forward. It’s certainly a shift compared to decisions in the past,” Cummins said.

Although the fact that the high court has reconsidered precedent numerous times in the past few years is clear from a review of the body’s output, not all agree that the current iteration of the court is any more willing to diverge from precedent than the court had when other justices sat on the bench.

“This is something that supreme courts do as times and circumstances and their personnel change,” Marshall Dennehey Warner Coleman & Goggin attorney John Hare said.

Hare likened the body to the U.S. Supreme Court, which sparked its own debate about precedent in 2019 after overturning precedent in cases involving property rights and sovereign immunity, among other things.

Lamb McErlane attorney Maureen McBride also said she did not think the court was overturning precedent more frequently than prior versions of the court. Although she said the court appeared to have expanded the law in some areas, she said that was due to the court more broadly interpreting the law.

“I don’t think the court is overturning existing case law, as much as it is reading more broadly into things like the Constitution,” McBride said.

The justices’ November decision in Yanakos, which struck down the MCARE statute of repose as violating the Pennsylvania Constitution’s guarantee of open access to the courts, is a clear example of the court broadly applying the Constitution’s remedies clause to make a shift in the law.

Cummins, however, said the several decisions that went against precedent expanded liability for defendants and opened new avenues for plaintiffs to recover—rulings, he said, that could force the defense bar to adjust their tactics.

“I think now that we’re seeing this, it makes defendants reluctant to bring issues all the way up to the Supreme Court, and instead to resolve cases before it gets to that point,” he said. “On the flip side, it would appear that the plaintiffs bar is trying to bring everything they can up to the Supreme Court with its current bench.”

Schmidt Kramer attorney Scott Cooper, who was a leading attorney on Gallagher, disputed the notion that the court was simply favoring one side over another, and said the court has been more strictly interpreting the law—at least when it comes to the Motor Vehicle Financial Responsibility Law.

Cooper said that, when it comes to auto insurance cases, for years courts have been following precedent that was not based on an interpretation of the law, but was rather an outgrowth of cases that arose through bad facts.

“Bad facts make bad law,” he said. “We finally have a court that is looking at the law and applying it.”

In Gallagher, the justices ruled 5-2 that the household vehicle exclusions cannot be used to bar injured claimants from recovering stacked coverage. Breaking with decades of precedent, the justices said the exclusions acted as a “de facto waiver” of stacked coverage.

In footnotes in the majority opinion, Justice Max Baer said the decision breaks with the Supreme Court’s 2011 holding in Government Employees Insurance v. Ayers, and the 2009 decision in Erie Insurance Exchange v. Baker. However, Baer said the court’s holding did not go against principals of stare decisis because the court split evenly in Ayers and the holding in Baker was a plurality decision.

Cooper, a former president of the Pennsylvania Association for Justice, said that, although the high court may be trimming back some precedential decisions, its focus remains on the Pennsylvania Constitution.

“What the Supreme Court’s saying is, ‘whether this was the intent or not; whether this was said or not said, there’s nothing we can do about it. The Constitution is the Constitution,’” Cooper said. “They’re applying the law. The highest law.”


Copyright 2019. ALM Media Properties, LLC. All rights preserved.

ARTICLE: 'Sayles' Decision by Pa. Supreme Court Illustrates Continued Judicial Activism

The below article appeared in the December 5, 2019 edition of the Pennsylvania Law Weekly and is republished here with permission.


'Sayles' Decision by Pa. Supreme Court Illustrates Continued Judicial Activism

By Daniel E. Cummins | December 05, 2019
Daniel E. Cummins.


Over the past several years, the plaintiffs bar made an organized push to support various candidates running for seats on the Pennsylvania Supreme Court, with many of those candidates winning their elections. Now, over the past year or so, with the new make-up of the Pennsylvania Supreme Court containing several new members that are shoving the pendulum to the opposite direction, the plaintiffs bar has been pushing cases up the appellate ladder in a determined and organized effort to alter the course of Pennsylvania jurisprudence.

For example, in Cagey v. Pennsylvania Department of Transportation (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, Department of Transportation, 946 A.2d 1123 (Pa.Cmwlth. 2006), and held that PennDOT is now only immune from suit in guiderail claims in limited circumstances, thereby allowing the plaintiffs to bring more actions against PENNDOT in auto accident cases.

In another recent stunning reversal, the new 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, 191 A.3d 799 (Pa. Aug. 21, 2018 Mundy, J.).

Then, earlier this year, in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019), the increasingly liberal, judicially activist Pennsylvania Supreme Court shook up the automobile accident litigation world by eradicating the household exclusion not only in the case before it, but across the board. This exclusion that had been routinely upheld for decades by various prior court decisions with some of those decisions even coming from the Supreme Court, was history.

Indeed, even Justice David Wecht, in his dissenting opinion issued in the Sayles case reviewed below, has framed the Supreme Court’s recent jurisprudence, particularly in motor vehicle accident cases, as evidencing “freewheeling and unwarranted invocation of ‘public policy’” to change and rewrite long-standing law.

The Liberal Judicial Activist Trend Continues

Now comes the recent Supreme Court decision in the combined matters of Sayles v. Allstate/Scott v. Travelers, No. 58 MAP 2018 (Pa. Nov. 20, 2019)(Op. by Todd, J.). This case involved the practice of automobile insurance companies requesting insureds to attend first-party personal injury protection (PIP) medical exams as allowed by the terms of the insurance policy. The Supreme Court’s decision in Sayles eradicates this practice in a manner that favors plaintiffs and allegedly injured parties.

The plaintiffs in Sayles argued that such policy terms that allowed carriers to repeatedly require its insureds to submit to an exam or exams at the request of the carrier irreconcilably conflicted with 75 Pa.C.S.A. Section 1796 of the MVFRL, which is titled “Mental or physical examination of a person.” That law basically provides that, whenever a person’s medical condition is at issue in circumstances as applicable to PIP claims and other identified matters, the court may order that person to attend a medical examination “upon motion for good cause shown.”

The plaintiffs bar attempted to paint a picture that the IME practice was being abused by the carriers by alleged repeated referrals of insureds for medical exams, by allegedly selecting doctors favorable to carriers, and in other ways.

The plaintiff’s argument in Sayles was that the policy provisions in automobile insurance policies allowing a carrier to refer an insured to a medical exam to test the validity of the insured’s need for ongoing treatment violated the wording of Section 1796 which required insurers to file a motion with the court and to demonstrate good cause in order to compel a PIP exam. The plaintiffs also emphasized that, even when good cause is shown for such an exam, it is the court and not the insurer who should select the doctor to complete the exam.

It should come as no surprise that the current Supreme Court (except the dissenting Wecht) in Sayles accepted the plaintiff’s argument and rejected the long-standing practice of PIP insurers compelling its insureds to attend a PIP independent medical examinations on the basis of policy provisions. The Supreme Court ruled that insurers must, instead, file a petition with the court and demonstrate good cause. Also, the court ruled that it will now be a trial court judge who will select the medical examiner and not the carrier.

In footnote 11, the majority of the Supreme Court dismissively rejected the notion that its decision in Sayles would result in any great number motions being filed in this regard in the trial courts. The Supreme Court noted that Section 1796 has been on the books for years and has never generated much motions practice. What the court does not acknowledge in this footnote is that motions practice was never required in the context of PIP medical expense claims before as automobile insurance policies all contained the agreement between the carriers and their insureds that the carriers could refer the plaintiffs to exams without the necessity of the carrier filing a motion with the court.

Now that plaintiffs attorneys are armed with the Sayles decision, there is no doubt that they will, in many cases, balk at allowing their clients to be referred to medical examinations unless the carrier files a motion with the court. Forcing a motions practice will allow the plaintiffs to exert some control over the selection of the doctor and the parameters and conditions of the exam.

It can therefore be anticipated that the practice of PIP carriers referring its insureds to medical exams to test the validity of the need for treatment will be changed from one in which the already overburdened trial courts did not have any such motions or litigation whatsoever to address in this regard to one where they will likely be flooded with many motions filed and dickered over by fighting attorneys and parties in petty fashion.

Even worse, the Supreme Court, in its haste to rewrite the law and change long-standing practice for the benefit of plaintiffs in Sayles, did not provide any guidance to the trial courts regarding how to select an appropriate doctor to complete the examination or what parameters or conditions should be imposed upon the examination.

In the end, the plaintiffs’bar convinced the Supreme Court to take what was a molehill of nonissue and to turn it into a mountain of anticipated litigation without any trail to follow up its steep terrain to nowhere but trouble.

Impetus for a Class Action Suit?

It appears that a main impetus behind the effort to get this issue before the Supreme Court and to secure the ruling that was secured was to open the door for a class action lawsuit by the plaintiffs against various carriers who have, in the past, referred their insureds to medical examinations as per the previous insurance policy provisions and without filing any motion with a court as had been the long-standing practice for decades. Within days, if not hours of the issuance of the Sayles decision, a push was being made by the plaintiffs bar to generate potential plaintiffs for such a class action.

However, in a rare instance of restraint, the Supreme Court declined to state whether its decision should apply only prospectively or retroactively and left that issue for another day. As such, the Sayles decision opened the door for a potential class action lawsuit but did not pave the way (yet).
Taking Steps Backwards

The Pennsylvania Supreme Court’s decision in Sayles appears to be of little moment with respect to PIP IMEs themselves as it was a rare event that an insured is sent for multiple independent medical examinations in the PIP context, which appears to have been the main complaint of those that pushed the issue.

The unfortunate detriment of the Sayles decision is that validly injured plaintiffs may now be delayed in continuing their treatment with the uncertainty of whether coverage for their medical expenses will continue given the need to now first proceed through motions practice to secure an eventual court order to determine whether a carrier’s request for a medical exam is appropriate.

Although the plaintiffs bar may have taken a step forward in its effort to generate a class action lawsuit in search of a lucrative recovery, injured plaintiffs themselves have been forced to take a step backwards in their pursuit of treatment for their injuries. Even worse, innocent Pennsylvanians everywhere face the prospect of increased automobile insurance premiums as a result given the new costs that will be attendant with the additional litigation that will now be required for the first time by the Sayles decision.


Daniel E. Cummins is a partner in the Scranton law firm of Cummins Law where he focuses his practice in automobile accident litigation matters.

THE 2018 TORT TALK TOP 10

Here is the 2018 Tort Talk Top Ten--an annual listing of notable cases and important trends in Pennsylvania civil litigation law over the past year as highlighted in Tort Talk blog posts:

10.  FEDERAL COURT JURISDICTION ISSUES

Trending over the past year were a number of notable Pennsylvania federal court decisions handed down reviewing the issue of jurisdiction over foreign or out of state Defendants.

A common thread in a number of the decisions was an agreement that, if a foreign business had registered to do business in Pennsylvania, that minimal contact in and of itself was sufficient to allow for jurisdiction over that defendant.  See Mendoza v. Electrolux Home Products, Inc., No. 4:17-CV-02028 (M.D.Pa. 2018 Brann, J.).

In a number of other decisions, the federal courts addressed whether jurisdiction could be had under a stream of commerce theory.  For example in Wylam v. Trader Joe's Co., No. 3:16-CV- 2112 (M.D.Pa. 2018 Mariani, J.), the court noted that neither a single sale directed at the forum state nor the fact that the Defendant's products were carried by national retailers was sufficient to establish jurisdiction.

9.  PROPERLY PLEADING BAD FAITH COMPLAINTS

In 2018, federal court bad faith Complaints were getting bounced left and right for being rife with conclusory allegations lacking sufficient factual support. 

Decisions in the Western District, Eastern District and the Middle District tasked plaintiffs with the need to offer facts to support claims of poor claims handling, delays in payment, and lack of investigations by carriers.  Lucky for the plaintiffs, in most cases leave to amend was granted.

A number of those cases can be accessed at this LINK.

8.  UM/UIM STATUTE OF LIMITATIONS

Judge James M. Munley of the Federal Middle District Court of Pennsylvania denied the carrier’s Motion for Summary Judgment on a UIM statute of limitations defense in the case of Legos v. Travelers Cas. Ins. Co., No. 3:16-CV-1917 (M.D. Pa. Oct. 11, 2018 Munley, J.), by holding that the statute of limitations for a UIM is four (4) years from the date of a breach of the automobile insurance contract and not the date of the third party settlement.  The breach of contract was noted to be the carrier's denial of the request, or settlement demand, for payment of UIM benefits.

In so ruling, the court referenced the Pennsylvania Supreme Court case of Erie Ins. Exch. v. Bristol, 174 A.3d 578 (Pa. 2017), in which it was held that the statute of limitations in an uninsured (UM) motorist case does not begin to run until there is an alleged breach of the insurance contract, i.e., the denial of a claim or a refusal to arbitrate.

 The Legos decision can be viewed HERE.

Some argue that these cases serve to eradicate the statute of limitations in UM/UIM cases by basing the start of the statute of limitations upon the alleged breach of the auto insurance contract by the carrier.  When filing such Complaints, Plaintiffs typically allege that auto insurance carriers breach the contract by not paying the Plaintiff's request for UM or UIM benefits.  

As the argument goes, every time a carrier declines to pay a Plaintiff's settlement demand, another breach occurs which causes the running of the statute of limitations to start again (and again and again and again, every time a demand is rejected). Look for the defense bar to challenge this issue in the future.

7.  AIN'T NO LIABILITY IF IT'S STILL SNOWING

A number of decisions handed down over the past year confirmed that there is no liability under the Hills and Ridges Doctrine if a person slips and falls during the course of a snowstorm.

In the case of Collins v. Phila. Sub. Devel., No. 2018 Pa. Super. 17 (Pa. Super. Jan. 31, 2018 Panella, J., Olson, J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.), the court affirmed the entry of summary judgment in favor of a premises liability Defendant under the Hills and Ridges Doctrine where the evidence before the trial court confirmed that the winter storm, described in the record as a blizzard, was still active at the time of the Plaintiff's alleged slip and fall on ice and/or snow.

The Collins decision is also notable for the court's ruling that the Defendant's alleged failure to pretreat a walking surface was not a basis upon which to impose liability under Pennsylvania law.

Another case from the past year along these lines was the case of Bless v. Pocono Mountain Recovery Center, LLC., No. 8167 - CV - 2016 (C.P. Monroe Co. May 17, 2018 Zulick, J.).  

In Bless, which is noted to be the most viewed case of 2018 on the Pennsylvania Law Weekly's Instant Case Service, Judge Arthur L. Zulick, of the Monroe County Court of Common Pleas granted the Defendants’ Motion for Summary Judgment based upon the hills and ridges doctrine in a case where the record contained evidence that the Plaintiff's fall occurred right after a recent snowfall which caused slippery conditions. 

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

6.  EXPERT TESTIMONY IN MED MAL CASES

In the case of Gintoff v. Thomas, No. 2016-CV-2155 (C.P. Lacka. Co. May 4, 2018 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a Defendant hospital’s Motion for Summary Judgment in a medical malpractice case given the Plaintiff’s failure to support the claims against that Defendant with expert opinion testimony on those particular claims.  

This decision was the fourth most viewed case on the The Pennsylvania Law Weekly's Instant Case Service  in 2018.

In Gintoff, the court found that the Plaintiff's medical expert report, which only addressed the care provided by the defendant doctor, lacked sufficient expert opinion to establish a prima facie case for vicarious liability or corporate negligence on the part of the defendant hospital.

As such summary granted was entered in favor of the hospital.  Anyone wishing to review a copy of this decision by Judge Nealon may click this LINK.

5.  SOCIAL MEDIA DECISIONS

Notable social media discovery and evidentiary decisions continued to trend over the past year.

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.

Both the trial court and the appellate court in Mangel 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 cell phone text messages.

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.

In terms of social media discovery decisions, 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.

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.

After reviewing the record before the court, the court in Allen 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.

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 even downloaded from that page.

4.  CELL PHONE USE - PUNITIVE DAMAGES

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 cell phone.

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 Manning court concluded that the mere use of a cell phone absent additional indicia of recklessness was not enough to sustain a claim for punitive damages.  This decision can be viewed at this LINK.

3.  NON-PRECEDENTIAL OPINIONS

Over the past year, the Pennsylvania Superior Court has continued to hand down important decisions that are marked as "Non-Precedential" by that Court, rendering the decisions to be of minimal or no persuasive value going forward.

One rationale voiced at CLE seminars for marking the decisions as "Non-precedential" is that the Superior Court writes hundreds and hundreds of opinions every year.  Huh?

With all the room in the  online world for continuing publications of everything in this Digital Age, including numerous court decisions, the hope is that the Pennsylvania Superior Court begins to publish all of its decisions so as to render them precedential and, therefore, useful.

The Superior Court internal rules or customs pertaining to marking Opinions as "Non-precedential" are as necessary as its old, repealed rules that use to make litigators waste time needlessly looking up and citing to both the "A.2d" citation and the "Pa.Super." citation to cases back in the day.  Here's to hoping that a change is coming in 2019.  

3. (Tie)  THE DAWN OF UBER LITIGATION

In what may be the first reported Pennsylvania decision in an Uber personal injury litigation matter, the court in Fusco v. Uber Technologies, PICS No. 18-0944  (E.D. Pa. July 27, 2018 Goldberg, J.)(Mem. Op.), 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.

In this matter, when the Uber driver arrived to pick up the plaintiff, the driver refused to take the plaintiff to his requested destination as it was too far. The plaintiff, apparently knowing the rules that Uber imposes on its drivers to honor the customer's request to be taken to a certain destination, 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.

Anyone wishing to review this memorandum decision may click this LINK.  The companion Order can be viewed HERE.

And so, with the dawn of the age of Uber and Lyft litigation arising, it may be wise to read up on any case law you see in this regard.  Please email me a copy of any decisions you see to be posted here on Tort Talk so that all can benefit from this knowledge.

For an article by myself and Steve Kopko, Esquire on the law pertaining to required insurance in Uber and Lyft cases, click HERE.

2.  12 YEARS OF PRECEDENT OVERTURNED

Twelve (12) years of precedent was overturned by the Pennsylvania Supreme Court in the case of Cagey v. PennDOT, 179 A.3d 458 (Pa. Feb. 21, 2018) (Maj. Op. by Donohue, J.)(Saylor, C.J., Concurring) (Wecht, J., Concurring), thereby exposing PennDOT to more litigation relative to accidents involving guiderails along Pennsylvania state roadways.

In Cagey, the court expressly overruled the long-followed 12-year-old Commonwealth Court decision in Fagan v. PennDOT, 946 A.2d 1123 (Pa. Cmwlth. 2006), along with its progeny, which had previously held that PennDOT is immune from liability in guiderail cases.  With the Cagey decision from the Pennsylvania Supreme Court handed down earlier this year, PennDOT is now only immune when it fails to install a guide rail.

The Pennsylvania Supreme Court otherwise held in the Cagey case that when PennDOT has previously installed a guide rail, sovereign immunity is waived if the agency’s negligent installation and design created a dangerous condition that causes or contributes to an accident.

 Although there are two concurring opinions in the Cagey decision, it appears that all of the justices agreed on the ultimate holding of the case.

With this reversal of many years of legal authority that protected PennDOT from liability pertaining to guide rail claims, it is expected that there will be a dramatic increase in litigation for the government in defending accidents that involve alleged issues with a guiderail.

Anyone wishing to review the Majority Opinion written by Justice Christine Donohue may click this LINK.

The Concurring Opinion written by Chief Justice Thomas G. Saylor can be viewed HERE.

The Concurring Opinion written by Justice David Wecht can be viewd HERE.

1.  30 YEARS OF PRECEDENT OVERTURNED

In a monumental reversal in the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. Aug. 21, 2018 Mundy, J.) (Justices Todd, Dougherty, and Wecht joined in the majority Opinion) (Baer, J., concurring) (Saylor, dissenting, J.), the Pennsylvania Supreme Court overturned 30 years of precedent by holding that the involuntary movement of a vehicle can constitute the 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).

The plaintiff’s decedent in Balentine was a contractor working at a site just off the side of a roadway.  The Plaintiff was fatally injured when one car struck a parked car that was running and propelled that parked car into the pedestrian plaintiff. 

The parked car was government inspector's car which gave rise to claims being pursued against governmental agencies that are generally protected with immunity under the Tort Claims Act.  One exception to the immunity provisions is the motor vehicle exception, for accidents involving government motor vehicles in operation.

In this case, the appellate ladder, the majority of the Pennsylvania Supreme Court reviewed the law behind the Tort Claims Act and decided to overturn 30 years of precedent by holding 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.

The Majority Opinion of the Court in Balentine can be viewed HERE.

Justice Baer's Concurring Opinion can be viewed HERE.

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

The Pennsylvania Supreme Court's decision in Balentine was recently followed by Judge Julia K. Munley in the Lackawanna County case of Sands v. Hamilton, No. 2013-CV-55 (C.P. Lacka. Co. Nov. 5, 2018 Munley, J.).

In Sands, the court addressed a defendant municipal bus company’s Motions In Limine seeking to preclude evidence and testimony related to negligent supervision, negligent training, and negligent retention of the bus driver.  The defense was asserting that such evidence was irrelevant given that such evidence did not relate to the central issue of whether the “operation” of the motor vehicle at issue fell under an exception to the governmental immunity provided under42 Pa. C.S.A. §8542(b)(1). 

Based in part upon the Balentine decision, the court denied the motion in limine and allowed the evidence in at trial. 

Anyone wishing to review this decision online may click this LINK.

HONORABLE MENTIONS:

POST-KOKEN LITIGATION

Splits of authority continue to abound on many issues in Post-Koken Litigation in the continuing absence of much needed appellate guidance.  Hopefully, the Superior Court will get a chance to decide some of these issues this year and issue published decisions to provide valuable precedent for the courts below.

TINCHER REVISITED

The Pennsylvania Superior Court had another chance to view the issues in Tincher as that case continued its ride up and down the appellate ladder.  In this latest decision, the court again confirm that the Azzarello decision is no longer good products liability law.  Yet, the plaintiff's and the defense bar continue to battle over proper language for jury instructions.

Anyone wishing to review the Pennsylvania Superior Court’s decision in Tincher may click this LINK.

JUDGES SHOULD BE ON THE BENCH FOR VOIR DIRE

In the case of Trigg v. Children’s Hospital of Pittsburgh, No. 2018 Pa. Super. 129 (Pa. Super. May 14, 2018 Kunselmen, Olson, J.J.; Bowes, J., concurring) (Op. by Kunselmen, J.), the Pennsylvania Superior Court noted that, if trial court judges want the benefit of a favorable standard of review on appeal, they better be on the bench during voir dire in order that they may assess a juror's demeanor in person when deciding whether or not to strike a juror for cause.

Anyone wishing to review a copy of this decision may click this LINK.  Judge Bowes's Concurring Opinion can be viewed HERE.  

A STEP FORWARD FOR CLE/CJE CREDITS FOR MOCK TRIAL PARTICIPATION

Both the Board of Governors and the House of Delegates of the Pennsylvania Bar Association have adopted a Report and Recommendation with regards to submitting a request to the Pennsylvania Supreme Court to issue a new rule allowing attorneys to earn up to 2 CLE credits a year, and judges up to 2 CJE credits a year, for their participation in the annual Mock Trial Competition. 

With this adoption of the Report and Recommendation, it is now the official position of the Pennsylvania Bar Association to submit a request - on behalf of all Pennsylvania lawyers - that the Pennsylvania Supreme Court change the Rules of Continuing Education to allow for two CLE and two CJE credits for mock trial participation.   That request has been submitted.

Here's to hoping the Supreme Court grants the request and thereby provides great assistance to a great program that helps high school and college students all across the Commonwealth of Pennsylvania by increasing the number of attorneys and judges who will be more willing to volunteer their time.


ALSO TRENDING IN 2018 - SHAMELESS PLUGS

In 2018, Cummins Mediation Services was launched and began to provide mediation services to assist in bringing all types of personal injury civil litigation matters to a close with much success.  

Should you wish to mediate a case in the year ahead, please do not hesitate to contact me at dancummins@comcast.net or 570-346-0745 to request a CV or a proposed fee schedule.