THE 2020 TORT TALK TOP TEN

             

Here is the 2020 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.

If you wish to view the actual Tort Talk post on any of the following cases or topics, or the actual Opinion, please go to TortTalk.com and type the name of the Plaintiff in the case in the Search Box in the upper right hand corner of the blog.  There should be a Link to the actual Opinion within the blog post itself.

10.    Trial Judges Should Stay on the Bench for Voir Dire

The Pennsylvania Supreme Court was positioned to answer the question of whether it was proper for a trial court judge to leave the bench for jury selection in its decision in the case of Trigg v. Children's Hospital of Pittsburgh of UPMC, No. 3 WAP 2019 (Pa. April 22, 2019) (Op. by Todd, J.)(Donohue, J., Concurring)(Wecht, J., Concurring).  

However, in its decision, the Pennsylvania Supreme Court found that the issue had not been preserved for appeal and that the Superior Court had, therefore, improperly addressed the merits of the question presented.

While the Court found that the issue had been waived, several of the Justices wrote Concurring Opinions voicing their thoughts that a trial court judge should remain on the bench during the course of voir dire.

9.    Validity of Reservation of Rights Letters

In the case of Selective Way Ins. Co. v. MAK Services, 232 A.3d 672 (Pa. Super. April 24, 2020) (Bowes, J., Shogan, J., Strassburger, J.) (Op. by Bowes, J.)(Dissenting Op. by Strassburger, J.), the Pennsylvania Superior Court issued an important decision pertaining to the validity of reservation of rights letters issued by liability insurance carriers.

The court emphasized that, in order for a reservation of rights letter to be valid, it must be issued in a timely fashion and it must clearly state the reasons under the policy for the reservation of rights or for the challenge to coverage.  The court also noted that a best practice may be for the insurance company to send the reservation of rights on multiple occasions as the case evolves.

The court noted that, if a carrier fails to meet these recommendations with respect to a reservation of rights letter, the carrier may be estopped from denying coverage in the end.

8.    Still no Appellate Guidance for Post-Koken Cases

The original Post-Koken decision was handed down back in 2005 allowing automobile insurance companies to replace their arbitration clauses with the requirement that UM and UIM claims instead be pursued in a court of law.  Yet, since that time, essentially the only appellate court decision of note handed down was the Stepanovich v. McGraw decision by the Pennsylvania Superior Court back in 2013 in which that court suggested that it was permissible to conduct a trial of the claims against the tortfeasor and the UIM carrier before the same jury (the Pennsylvania Supreme Court inexplicably denied allocatur in the case).

To date, there remain splits of authority all across the Commonwealth of Pennsylvania on a wide variety of Post-Koken issues in terms of pleadings, discovery, and trial.  These varying county decisions can always be viewed on the Post-Koken Scorecard by scrolling down the right hand side of the Tort Talk blog and clicking on the date under "Post-Koken Scorecard."

7.    Courts Address Standards for Sealing a Settlement Agreement

In the case of A.A. v. Glicken, No. 2020 Pa. Super. 197 (Pa. Super. Aug. 14, 2020 Olson, J., Dubow, J., and McLaughlin, J.) (Op. by Olson, J.), the court upheld a Luzerne County trial judge’s decision not to seal a settlement agreement in a minor’s medical malpractice lawsuit. 

In so ruling, the appellate court rejected the Defendants’ argument that not sealing the settlement agreement would have a chilling effect on future settlements and would go against the parties’ interests in privacy. The appellate court found no abuse of discretion by the trial court in denying the Motion to Seal. 

The Superior Court also ruled that the Defendants did not overcome the common law presumption of openness in courts and the Defendant did not meet their burden of showing good cause for sealing the record. 

This issue was also addressed by Judge Terrence R. Nealon of Lackawanna County in the case of Moses Taylor Foundation v. Coverys, No. 19-CV-7423 (C.P. Lacka. Co. May 8, 2020 Nealon, J.), the court addressed a hospital's request to seal the record in a bad faith litigation. 

In the end, the court found that the secrecy interests cited by the hospital and the trust do not supersede the presumption in favor of open access to the judicial records so as to justify a court-sanctioned closure of the record.

6.    Split of Authority on Allegations of Recklessness

In 2020, the split of authority on the propriety of allegations of recklessness continued.  

Some more liberal trial court judges allowed allegations of recklessness to be pled with reckless abandon in any case whatsoever regardless of the facts presented under a rationale that an allegation of recklessness is an averment of a state of the mind and such averments are allowed to be generally pled under Pa.R.C.P. 1019.

Another line of courts emphasized that Pennsylvania is a fact-pleading stated and limited allegations of recklessness to those cases where outrageous facts were present.

Most Plaintiffs attorneys avoid any delays in the forward movement of their cases that may be caused by Preliminary Objections by agreeing to stipulate the claims of recklessness out where they are challenged so long as the Plaintiff retains the option to motion the claims back in if discovery reveals facts sufficient to support a punitive damages claim.

5.    Pennsylvania Superior Court Adopts Test for Staying a Civil Lawsuit While Criminal Charges are Pending against Defendant

In a case of first impression, the Pennsylvania Superior Court has ruled in Keesee v. Dougherty, 230 A.3d 1128 (Pa. Super. March 16, 2020 Bowes, J., Olson, J., Stabile, J.)(Op. by Olson, J.), that a trial court judge must reconsider her refusal to stay a civil lawsuit while a companion criminal case is pending.

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

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

4.    Pennsylvania Supreme Court Upholds Artful Pleading to Avoid Liability Exclusion

In Erie Insurance Exchange v. Moore, No. 20 WAP 2018 (Pa. April 22, 2020)(Op. by Dougherty, J.)(Dissenting Op. by Mundy, L), the Court allowed artful pleading of negligence by a Plaintiff in a shooting case to avoid exclusions in a liability policy and thereby implicate a carrier’s duty to defend the matter.

This case arose out of the tortfeasor's shooting of the Plaintiff.  The Plaintiff asserted in his Complaint that the shooter had negligently, carelessly and recklessly caused the weapon to be fired.  The Court read the facts to indicate that the shooter had intended to shoot another person and, when the Plaintiff had intervened, the Plaintiff was shot by mistake during the scuffle with the shooter.

3.     Regular Use Exclusion is Under Attack

Over the past two years, the Plaintiff's bar has been successful in attacking the validity of the Household Exclusion in automobile insurance policies.

Energized, the Plaintiff's bar has now set its sights on attacking the Regular Use Exclusion using essentially the same argument that was utilized in the Gallagher v. GEICO case, i.e., that the exclusion acts as an improper de facto waiver of stacked coverage when the MVFRL requires that carriers secure written waivers of stacked coverage from its insureds.

While these attacks initially have not met with success, the Plaintiff's bar scored a chink in the armor with a victory in the Northampton County Common Pleas Court case of Rush v. Erie Insurance Exchange, No. C-48-CV–2919-01979 (C.P. Northampt. Co. June 29, 2019 Baratta, J.). In Rush, Judge Stephen G. Baratta of the Northampton County Common Pleas Court granted partial summary judgment to the injured party plaintiffs after holding, as a matter of first impression by any court in Pennsylvania, that Erie’s regular use exclusion was invalid under the MVFRL.

The recent cases on this issue can be viewed by going to www.TortTalk.com and scrolling down the right hand column until you get to the "Labels."  In alphabetical order under that, click on the label for "Regular Exclusion" to get to the Tort Talk blog posts on those cases.

Also, here is a LINK to my September 10, 2020 Pennsylvania Law Weekly article on the topic entitled "Can the Regular-Use Exclusion Withstand an Attack from the Plaintiffs Bar?"

2.   Lower Courts Continue to Debate Scope of Gallagher v. GEICO Household Exclusion Decision

In 2019, the Pennsylvania Supreme Court attempted to eradicate the Household Exclusion found in automobile insurance policies as an improper de facto waiver of stacked coverage.

In 2020, lower courts struggled with the application of the Gallagher v. GEICO decision to different factual scenarios than that presented in the case decided by the Pennsylvania Supreme Court.

While the Federal District Court judges largely followed the Gallagher v. GEICO decision as eradicating the Household Exclusion, several state court judges upheld the continuing validity of the Household Exclusion based upon the cases before them having different facts than those at issue in the Gallagher v. GEICO decision.

However, just last month, in the case of Erie Insurance Exchange v. Petrie, No. 261 EDA 2020 (Pa. Super. Nov. 18, 2020 Pellegrini, J., Nichols, J., Kunselman, J.)(Op. By Kunselman, J.), a panel of Pennsylvania Superior Court Judges held that the Gallagher v. GEICO decision was not limited to its facts and should be read as invalidating the Household Exclusion.

The recent cases on this issue can be viewed by going to www.TortTalk.com and scrolling down the right hand column until you get to the "Labels."  In alphabetical order under that, click on the label for "Household Exclusion" to get to the Tort Talk blog posts on those cases.

1.    COVID-19 Pandemic Impacts Civil Litigation in Pennsylvania (and across the world)

With the rise of the COVID-19 Pandemic in March of 2020, the courts shut down except for essential matters through September of 2020.  By then, most courts in Pennsylvania began to try to complete jury trials until the second surge compelled most courts to shut down trials again in December of 2020.  It remains to be seen when trials will get back on track in 2021.

The COVID-19 Pandemic also forced attorneys and judges to adapt and to adopt virtual meetings in order to keep cases moving forward.  The use of virtual meetings for depositions and court appointments became the norm, possibly impacting how cases will be handled in the future when the Pandemic goes away.

It is also anticipated that the impact of the Pandemic will be felt in the future in terms of a dip in claims given that there was a stay-at-home Order in effect in Pennsylvania for about two months in the Spring of 2020.

Pennsylvania Supreme Court Finds That Issue of Whether It Is Proper For a Trial Court Judge To Leave The Bench During Jury Selection Was Not Preserved

Tort Talkers may recall that we have been waiting for the Pennsylvania Supreme Court to voice its opinion on the propriety of the practice of some trial court judges choosing to leave the bench during jury selection and allowing the litigating attorneys to conduct voir dire on their own.

The Pennsylvania Supreme Court was positioned to answer this question in its decision in the case of Trigg v. Children's Hospital of Pittsburgh of UPMC, No. 3 WAP 2019 (Pa. April 22, 2019) (Op. by Todd, J.)(Donohue, J., Concurring)(Wecht, J., Concurring).  However, in its decision issued yesterday, the Court found that the issue had not been preserved for appeal and that the Superior Court had, therefore, improperly addressed the merits of the question presented.  (The Tort Talk Blog post on the Superior Court's decision, along with other posts pertaining to this Trigg decision, can be viewed HERE).

Note however that, in their Concurring Opinions, Justice Donohue and Justice Wecht expressed their misgivings with regards to any practice whereby a trial court judge would leave the bench during the jury selection proceedings.

Justice Wecht also provides some cogent advice in his Concurring Opinion with regards to properly stating objections at appropriate times, creating and preserving objections on the record before trial and at trial, and even the merits of making objections that an attorney knows will be overruled if only to preserve the issue on appeal.

While most of the Majority Opinion focuses on the law of waiver of objections and not so much on the merits of the question of whether it is proper for a trial court judge to leave the bench during voir dire, both Concurring Opinions are worth reading relative to the jury selection question.

To read the Majority Opinion, please click HERE.

To read Justice Donohue's Concurring Opinion, please click HERE.

To read Justice Wecht's Concurring Opinion, please click HERE.


Commentary:  Now that it has been brought to the Supreme Court's decision that there is a practice in some trial courts around the Commonwealth of Pennsylvania where trial judges leave the bench during jury selection, and now that some of the Justices have vocalized their disdain for the practice, it remains to be seen if the Court will now effectuate a change in the Pennsylvania Rules of Civil Procedure to mandate that trial court judges remain on the bench for the entirety of voir dire.

If such changes are to be made, perhaps the Court would also consider mandating, through an amendment to the Rules, that a Court Reporter also be required to transcribe the entirety of voir dire.  Oftentimes, there is pressure on litigants from the trial court to agree to forgo the need for a court reporter to record the voir dire.

There is no question that it is a better practice to have a court reporter take down what is happening in voir dire as it happens as opposed to having no court reporter present and then later summoning a court reporter and attempting to rehash what happened with respect to an objection previously raised during voir dire.

ARTICLE: Judgeless Jury Selections: A Troublesome Trend

Here is a LINK to an article of mine that has been published in the March/April 2020 edition of The Pennsylvania Lawyer Magazine entitled "Judgeless Jury Selections:  A Troublesome Trend."

The article analyzes the relatively recent troublesome trend of judges routinely leaving the bench during jury selection after giving a short speech to the jurors about the trial process and then allowing the attorneys to conduct voir dire by themselves.

A number of cases that have gone up on appeal over issues surrounding the fact that the trial judge left the bench for voir dire.  In one such case, the Pennsylvania Superior Court recommended that trial court judges should remain on the bench.  In another case, the Pennsylvania Superior Court noted that it is not required that the trial court judge remain on the bench for voir dire but that, if the judge left the bench during that process, a different standard of review would have to be utilized on appeal to address any issues raised with respect to jury selection. 

This issue is now poised to be decided by the Pennsylvania Supreme Court in the Trigg case, which is currently pending before that Court.  The parties in that case argued the issues presented back on October 19, 2019 and await a decision.

The article reviews a number of reasons in favor of trial court judges remaining on the bench during the course of jury selection in order that certain appellate issues could be avoided as a result.

I send thanks to Patricia Graybill, the Editor of The Pennsylvania Law Weekly, for agreeing to publish this piece.

Pennsylvania Superior Court Addresses Standards For a Proper Voir Dire Proceeding

Is a judge required to be on the bench during jury selection?

In the case of Smith v. Cordero, 2019 Pa. Super. 340 (Pa. Super. Nov. 15, 2019) (Op. by McLaughlin, J.), the Superior Court ruled that a trial court erred in denying an estate’s Motion to Strike Two Jurors in a medical malpractice case where the jury selection was conducted by a court clerk and where the jurors had where the jurors had expressed the view that medical malpractice lawsuits had affected the cost and availability of medical services. In light of this ruling, the judgment in the underlying case was vacated.

Interestingly, the Superior Court noted that the previous decision in the case of Trigg v. Children’s Hospital of Pittsburgh, 187 A.3d 1013 (Pa. Super. 2018), appeal granted, 201 A.3d 145 (Pa. 2019) did not serve to impose a requirement that a judge be present during voir dire, but rather, only merely addressed the applicable appellate standard of review on a jury selection issue where a judge did not participate in the voir dire.

The court did find that the Trigg appellate standard of review applied in this matter. Under that standard of review, the court ruled as stated.

The Superior Court in this Smith case noted that, while the two (2) jurors at issue stated that they could still follow the judge’s instructions and be fair and impartial, the trial court judge was not present to hear the jurors’ tone of voice or to address their demeanor when they provided this information. As such, the Superior Court found that the trial court judge could not know whether the jurors could really be fair and impartial.

Given that the jurors’ answers expressed the “slightest ground of prejudice” required for their dismissal from the jury pool, the appellate court stated that the trial court should have granted the motions to strike the jurors for cause.

As such, while it appears that a trial court judge may not be required to be on the bench at the time of jury selection, the Pennsylvania Superior Court has again strongly suggested that it is the better practice for a judge to be present during voir dire to assess the demeanor and testimony of a potential juror when that juror is first questioned regarding his or her ability to be fair and impartial to with respect to the parties involved.

As noted in the Trigg citation above, this issue may be addressed by the Pennsylvania Supreme Court in the near future.

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Dec. 3, 2019).

Pennsylvania Supreme Court To Review Case In Which Question of Presence of Trial Court Judges At Jury Selection is Implicated

Tort Talkers may recall the buzz caused by the Pennsylvania Superior Court's decision 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.), in which that Court noted that a trial court judge should sit in on, and preside over, jury selection, in order to be able to apply a certain standard of review on appeal.

As a status update on this case, it is noted that, in an Order handed down on January 23, 2019, the Pennsylvania Supreme Court recently granted allocatur on the appeal of this case.

In its one-page order granting allocatur, the Supreme Court agreed to hear argument on three issues:

“a. Whether the Superior Court’s decision conflicted with the jurisprudence of this Honorable Court and other Superior Court decisions by failing to apply the ‘palpable error’ abuse of discretion standard of review and properly defer to the trial court?

b. Whether the Superior Court’s holding directly conflicts with Shinal v. Toms, 162 A.3d 429 (Pa. 2017), which requires the denial of a strike for cause of a prospective juror when the prospective juror is willing and able to eliminate influences and render a verdict according to the evidence?

c. Whether the Superior Court improperly considered arguments regarding juror demeanor when those arguments were waived?”

Anyone wishing to review the Supreme Court's Order may click this LINK.

 

It remains to be seen to what extent the Pennsylvania Supreme Court will comment on the presence of a trial court judge at jury selection.

Here's a LINK to the Tort Talk post on the Superior Court's decision in the Trigg case.  That post contains a Link to the actual decision by the Pennsylvania Superior Court.  The Superior Court was pretty strong in its suggestion that a trial court judge should be present for jury selection.

What do you think?

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.

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

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

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

By Daniel E. Cummins
December 18, 2018

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

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

Dramatic Pennsylvania Supreme Court Decisions

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

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

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

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

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

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

No More Voir Dire Without a Judge Present

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

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

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

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

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

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

Social Media Decisions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Future Shows Up as Your Ride

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

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

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

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

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

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

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

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

Can You Hear Me Now?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Looking Ahead to 2019

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

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

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

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

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