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Plaintiff's Attorney and Firm Disqualified Where Attorney Previously Represented Corporate Defendant in Many Matters

In the case of Darrow v. PPL Electric Utilities Corp., No. 236 MDA 2021 (Pa. Super. Dec. 14, 2021 Panella, P.J., Murray, J. and Stevens, P.J.E.) (Op. by Murray, J.)(Stevens, P.J.E., dissenting), the Pennsylvania Superior Court reversed a trial court’s decision on an issue of whether the Plaintiff’s attorney, who formerly represented the Defendant, PPL, while working as a defense counsel at another law firm, should be precluded, as well as the entire Plaintiff’s firm, from representing the Plaintiff due to the prior representation of the Defendant.

According to the Opinion, the Plaintiff allegedly sustained injuries when the vehicle he was operating collided with a utility pole and then came into contact with a downed powerline.

The Plaintiff retained his attorney and the Plaintiff’s law firm. Thereafter, the Defendant filed a Motion to Disqualify the Plaintiff’s attorney and the Plaintiff’s law firm representing the Plaintiff given that the Plaintiff’s attorney had previously and extensively defended the Defendant, PPL, in numerous matters.  The Defendant, PPL, asserted that the attorney allegedly had intermittent knowledge of the inner workings of the Defendant’s operations and litigation strategy. In essence, the Defendant asserted that there was an impermissible conflict of interest under the Pennsylvania Rules of Professional Conduct that implicated not only the Plaintiff’s attorney but the entire Plaintiff’s law firm.

According to the appellate Opinion, the trial court had agreed that the specific Plaintiff’s attorney should be disqualified.  However, the trial court ruled that the Plaintiff’s entire law firm did not have to be disqualified.

The appellate court disagreed on appeal. As such, the appellate court reversed the trial court’s Order and directed the trial court to enter an Order disqualifying the entire Plaintiff’s law firm.

In this regarding, the Superior Court ruled that the Plaintiff’s attorney at issue had had a substantial prior relationship with the Defendant that included the attorney having access to the Defendant’s confidential information regarding its internal operations and litigation strategy. 

The appellate court further found that the Plaintiff’s law firm’s small size weighed in favor of disqualification of the firm as it would be difficult to prevent contact between the attorney at issue and the other attorneys in the Plaintiff’s law firm. The court also noted that the Plaintiff’s attorney at issue had already provided substantial work on the Plaintiff’s case prior to the disqualification.

The appellate court was also influenced to rule in its fashion by the fact that the Plaintiff’s law firm had only implemented a conflicts screening policy after the particular attorney had been disqualified from the case.

Anyone wishing to review a copy of this decision may click this LINK.  The Dissenting Opinion by Judge Stevens can be reviewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 4, 2022).

Source of image:  Photo by GR Stocks on www.unsplash.com.

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No Bad Faith If No Coverage Under UIM Policy

In the case of Miale v. Nationwide Ins. Co. of America, No. 2:21-CV-00702-CCW (W.D. Pa. Dec. 27, 2021 Wiegand, J.), the federal court dismissed a Plaintiff’s UIM bad faith claim given that there was an underlying finding that no coverage existed under the policy at issue such that there was, therefore, no valid breach of contract claim. 

The court noted that there was no coverage under the policy at issue given that the Plaintiff was found to have appropriately waived stacking under that policy.

The court reviewed issues surrounding intra-policy stacking and inter-policy stacking questions.    

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

I send thanks to Attorney Lee Applebaum of the Philadelphia office of Fineman, Krekstein & Harris for bringing this case to my attention. Attorney Applebaum is the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog which can be viewed HERE.

Source of image:   Photo by Kampus Production from www.pexels.com.

Eastern District Court Magistrate Judge Reviews Validity of UM/UIM Stacking Waiver Forms

In the case of Gramaglia-Parent v. Travelers Home & Marine Ins. Co., No. 2:-20-CV-03480-TR (E.D. Pa. Dec. 30, 2021 Rice, Mag. J.), the court ruled that an inter-policy UM/UIM stacking waiver form was not invalid simply because it contained additional language in a separate instruction section that was superfluous to the language required by the Pennsylvania Motor Vehicle Financial Responsibility Law.

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

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 20, 2022).

Personal Injury Claim By Family Claiming Worker Died From COVID-19 Virus Contracted At Work Dismissed Under Worker's Compensation Act

In the case of Barker v. Tyson Foods, Inc., No. 21-223 (E.D. Pa. Dec. 6, 2021 Diamond, J.), the court ruled that a claim that an employer willfully or wantonly exposed its employees to the COVID-19 virus was insufficient to overcome the exclusivity provisions of the Worker’s Compensation Act.  As such, the Defendant’s Motion to Dismiss was granted.

In this matter, the Plaintiff’s decedent passed away allegedly due to complications from the COVID-19 virus.

The Plaintiff alleged that the decedent’s employer caused the decedent’s wrongful death by failing to implement any safety measures after the outbreak of the COVID-19 pandemic. The Plaintiff also asserted that the Defendant allegedly maintained a work-while-sick policy.

The federal court granted the Defendant’s Motion to Dismiss after finding, in part, that the Plaintiff’s claims were barred by the Pennsylvania Worker’s Compensation Act.

The court more specifically held that willful or wanton disregard for employee safety was insufficient to overcome the exclusivity provisions of the Act.

Instead, the court noted that an employee could fall outside of the Worker’s Compensation Act only upon a showing that an employer’s fraudulent misrepresentation caused an aggravation of a pre-existing injury. In this case, the court found that the Plaintiff’s allegations did not amount to any showing that any alleged wrongful conduct on the part of the employer caused any aggravation of any pre-existing conditions of the Plaintiff’s decedent.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 21, 2021).

Pennsylvania Superior Court Addresses Forum Non Conveniens Doctrine [Non-Precedential]

In the case of Green v. CSX Transp., Inc., No. No. 2218 EDA 2020(Pa. Super. Dec. 21, 2021 Collins, J., DuBow, J., and Murray, J.) (Op. by Collins, J.)[Non-Precedential Decision], the Pennsylvania Superior Court found that a Defendant's Motion to Dismiss for forum non conveniens was valid and should have been granted by the trial court.  

According to the Opinion, the Plaintiff, who was a Maryland resident, alleged that he developed cancer from exposure to toxic substances during the course of his employment as a train conductor and brakeman which employment was almost at all of which took place in Maryland.

In its decision, the Pennsylvania Superior Court ruled that it was an abuse of discretion for the trial court to have concluded, based upon the availability of remote deposition procedures and other discovery due to the COVID-19 pandemic, that it was no longer material, for forum non conveniens purposes, as to where the actual litigation would be litigated. 

The court stated that reliance upon modern technology to obviate the need for in-person aspects of litigation and trial has been rejected as a justification to deny a Motion to Dismiss on forum non conveniens grounds.

In this case, the court emphasized that the Plaintiff had not worked in Pennsylvania for more than thirty (30) years. As such, any basis for the litigation being conducted more easily here in Pennsylvania was found to be tenuous, at best. 

The also court found that any connection that the Plaintiff had with Pennsylvania was merely transitory and de minimis, as compared to the obvious and more convenient alternate forum.

It was additionally noted by the court that no Pennsylvania fact witnesses had been identified.

In the end, the Pennsylvania Superior Court ruled that, given the clear viability of another state of an alternate forum for the litigation of this case, the appellate court found that it was an abuse of the discretion by the trial court to find to the contrary.

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


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