SAVE THE DATE - PDI/NEPATLA HOLIDAY HAPPY HOUR ON NOV. 30TH AT MOHEGAN SUN CASINO

Northeast Pennsylvania Trial Lawyers Association

and

The Pennsylvania Defense Institute

are hosting a

Holiday Happy Hour

Wednesday November 30, 2011

5:30pm to 7:30pm

at

Bar Louie

Mohegan Sun at Pocono Downs

Wilkes-Barre, PA

RSVP by November 25

to Cindy Serge

570-344-6323

cindy@theperrylawfirm.com

Members of NEPATLA or PDI: Free

Non-Members/Guests: $25

A Tip On How To Handle Requests For Admissions

TIP:  You don't have to admit or deny any Request for Admission that calls for you to admit or deny a conclusion of law--rather, you can state an objection based upon the case below.


In the recent case of Estate of John W. Borst v. Edward Stover Sr. Testamentary Trust,  2011 WL 4963100 (Pa. Super. October 19, 2011, Donohue, J.), the Pennsylvania Superior Court addressed the proper use of Requests for Admissions in civil litigation matters.

In this matter, which arose out of a land dispute, one party failed to timely respond to Requests for Admissions submitted by the opposing party under Pa. R.C.P. 4014. As such, these Requests for Admissions were deemed admitted under Pennsylvania 4014(b).

The party that served the Requests for Admissions followed up with a Motion for Summary Judgment based upon the opposing party’s “admissions.” The trial court granted summary judgment and an appeal was filed.

On appeal, the Superior Court agreed that the Requests for Admissions submitted were beyond the permissible scope of Pa. R.C.P. 4014(a) in that they called for the responding party to admit matters that constituted legal conclusions.  The Court noted that these "admissions" should not have been considered by the trial court. This case therefore stands for the proposition that Requests for Admissions must call for matters of fact rather than legal opinions and conclusions of law.

The Court additionally stated that “Withdrawal of admissions should be granted where upholding the admissions would practically eliminate any presentation of the merits of the case; where withdrawal would prevent manifest injustice; and where the parties who obtain the admissions fail to prove that withdrawal would result in prejudice to that party.”

Finding that the Requests for Admissions at issue in this matter involved conclusions of law beyond the permissible scope of Pa. R.C.P. 4014, the Superior Court ruled that the trial court’s entry of a summary judgment based upon those “admissions” was improper.

Accordingly, any Requests for Admissions that can be read as calling for an admission of legalities or conclusions of law can be denied in the Response to the Requests for Admissions with a citation to this case.

The Opinion in Estate of John W. Borst can be viewed online HERE.

Source: “Case Digest, Pennsylvania Law Weekly (Tuesday November 1, 2011).

Powell Gets 18 Months at Sentencing

Here is a link to a November 5, 2011 article from the Times Leader by Terrie Morgan-Besecker outlining the sentence handed down by Federal Middle District Court Judge Edwin Kosik on November 4, 2011 to former attorney Robert Powell for his guilty plea conviction for his role in the Luzerne County matters:

http://www.timesleader.com/news/It_rsquo_s_18_months_for_Powell_11-05-2011.html?searchterm=Powell

Powell, 53, was sentenced to 18 months in prison and fined $60,000.  He was ordered to present himself to prison at the end of this month to begin his sentence.


Here is a link to the letter Powell wrote to Judge Kosik prior to sentencing:

http://www.timesleader.com/news/Powell_rsquo_s_letter_to_the_judge_11-05-2011.html?searchterm=Powell

Hoping You Might Be Willing to Nominate Tort Talk for Lexis/Nexis Top Tort Blog Recognition.

I saw this message on the Lexis/Nexis site.  I am hoping you might consider Tort Talk to be worthy of this recognition as a Top Tort Law Blog.  This is different from the previous Lexis/Nexis recognition, which was for top Insurance Law Blogs.

Thanks for your time and consideration in this regard.

Nominate Your Favorite Blogs For Top Tort Blog Honors


Posted by LexisNexis Litigation Resource Community StaffChange Author: *

External URL:
http://www.lexisnexis.com/community/litigationresourcecenter/blogs/litigationblog/archive/2011/10/27/nominate-your-favorite-blogs-for-top-tort-blog-honors.aspx

Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry. This year, we've expanded Top Blogs to our Litigation Resource Community, and we are asking your help to select the Top 25 Tort Blogs. We've been fortunate to host the content of a number of distinguished legal professionals who have shared their insights and expertise with our Community, and through the process of seeking what we consider to be "top blogs," we have discovered many more.

The Top Tort Blogs campaign on the LexisNexis Litigation Resource Community will move ahead in several phases. We'll start by taking nominations during a comment period that starts today and ends on Nov. 17. We've gathered a group of initial nominees, which are listed below, and we welcome our Community members to make additional nominations and support their favorite blogs. We'll select the top 25 based on our review of the sites and comments from our Community members. After we announce the Top 25 Tort Blog honorees, we'll ask our Community to vote for the Top Tort Blog of the Year.

To "talk up" or nominate your favorite Tort Blog, you'll need to be a registered Community member and be logged in. If you haven't previously registered, follow this link. Registration is free! Once you are logged in, scroll all the way to the very bottom of this page to the comment box.

Add a comment in the box at the bottom of the page to vote or nominate your favorite blog, and that's it! If you are having problems with the registration or voting process, please contact us at Gregg.lawson@lexisnexis.com  I'm the Communities Manager, and I want to make sure that everyone gets to vote!

Superior Court Affirms Finding of Improper Venue in Philadelphia County Personal Injury Case

In the recent Pennsylvania Superior Court decision of Schultz v. MMI Products, Inc., et al.,   (Pa.Super. Oct. 21, 2011 Bowes, Allen, Platt, JJ.)(Opinion by Platt, S.J.), the Court affirmed the bouncing of a case filed in Philadelphia County to Lehigh County under an argument of improper venue.

This case arose out of a construction site accident that occurred in Lehigh County.

The plaintiff appeared to assert that the basis for venue in Philadelphia was the allegation that the defendant(s) “regularly conducted  business” in Philadelphia County.  The defendant introduced evidence via affidavit that only .8 and 1.3 % of their business was in Philadelphia.

The Opinion provides a detailed analysis of the applicable law on the venue rules found under Pa.R.C.P. 1006 and 2179. 

Although this issue is essentially the same issue as addressed by the Superior Court in its recent Post-Koken decision in Sehl v. Neff, that decision was not cited in this Opinion in the Schultz case.  In Sehl, the Superior Court rejected the contention that a plaintiff could pursue a post-Koken auto accident case in any county they wanted on the grounds that the insurance company defendant regularly conducted business in every county of the Commonwealth.

Anyone desiring a copy of the Schultz v. MMI Products decision (or the Sehl v. Neff decision) may contact me at dancummins@comcast.net.

I thank Attorney Suzanne Tighe of the Scranton, PA office of Swartz Campbell for bringing this decision to my attention.

Social Host Liability Case Out of Erie County

In the Erie County trial court case of Boyd v. Miller, 11321 - Civil - 2011 (C.P. Erie. Co. Oct. 28, 2011 Connelly, J.), the court addressed preliminary objections to a Complaint filed against a social host who provided marijuana to a guest, both of whom were under age 21.

The guest thereafter allegedly caused an accident while driving impaired resulting in alleged injuries to the plaintiff.

In response to the preliminary objections filed by the homeowner social host defendants the Court found that the plaintiff had stated a negligence cause of action based upon a violation of the Controlled Substance Act and also the Restatement (Second) Torts Section 876 (acting in concert).

In so ruling, the court rejected the Defendant host's argument that this case should be treated like an underage drinking case, and since both host and driver were underage, there should not be liability on the host under the current status of Pennsylvania law on that issue (which holds that there is no liability for a social host who provides alcohol to a guest who later gets into an accident--cases cited in the Opinion).

 Court disagreed finding that the cases cited were limited to the provision of alcohol given how the Pennsylvania Legislature has elected to treat drug offenses differently from alcohol offenses, i.e. as being "more egregious" offenses.

As such, the Court dismissed the claims asserting liability based upon the furnishing of alcohol to the guest, but overruled the preliminary objections to the allegations pertaining to the provision of controlled substances to the guest.

Anyone desiring a copy of this decision in Boyd v. Miller may contact me at dancummins@comcast.net.

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

Medical Event Defense Upheld in Monroe County Car Accident Case

A medical event defense was successfully asserted in a motor vehicle accident matter by the defendant in the Monroe County Court of Common Pleas case of Maness v. Hock, No. 3444-Civil-2010 (C.P. Monroe Co. September 19, 2011 Miller, J.).

In Maness, the defendant filed a motion for summary judgment asserting a medical event defense and arguing that, because the defendant suffered a first epileptic seizure immediately prior to the subject accident, which was not foreseeable, the plaintiff was unable to establish a viable cause of action for negligence.

Judge Linda Wallach Miller of the Monroe County Court of Common Pleas issued a detailed opinion reviewing the defendant’s motion.  After reviewing all of the evidence, the Court found that the defendant’s medical records, including an expert report by a board certified neurologist offered by the defense, all served to confirmed that the defendant had indeed suffered a first, unforeseeable epileptic seizure at the time of the motor vehicle accident.

Noting that the Court could not find any case law directly on point, and relying in part upon a decision from an appellate court in Maryland, Judge Miller held that the competent and unrebutted medical evidence presented in this case established that the defendant suffered an unforeseeable seizure that resulted in the defendant’s car colliding with the Plaintiff’s car. In reaching this decision, Judge Miller noted that, had the defendant had prior seizures and drove with that knowledge, reasonable minds may have been able to infer negligence.

However, under the facts presented in this case, the court found that the Plaintiff failed to establish a cause of action for negligence. As such, summary judgment was entered in favor of the defense.

Anyone desiring a copy of this opinion in Maness v. Hock may contact me at dancummins@comcast.net.