Court Addresses Circumstances Under Which A Deponent May Properly Assert Fifth Amendment Right Against Self-Incrimination

In the case of Sweet v. The City of Williamsport, No. 20-CV-00512 (C.P. Lyc. Co. June 27, 2022 Linhardt, J.), the court addressed the circumstances under which a civil litigant may properly assert his or her Fifth Amendment rights against self-incrimination at a deposition.

According to the Opinion, this case arose out of a fatal motor vehicle accident.

When the opposing parties requested the deposition of the Defendant driver, counsel for the Defendant driver advised opposing counsel that the Defendant driver would be asserting his Fifth Amendment rights against self-incrimination relative to any questions regarding the facts of the accident.

The opposing parties challenged the ability of the Defendant driver to assert his right against self-incrimination at the deposition, in part, due to the fact that the Defendant driver had already been previously convicted of several summary traffic offenses arising out of the subject incident and that the provisions of 18 Pa. C.S.A. §110(1)(ii) would bar future prosecutions against the Defendant driver thereby vitiating the Defendant driver’s need to assert his Fifth Amendment rights at the deposition.

The opposing parties filed a motion to compel the Defendant driver to attend a deposition and to answer the questions that would be presented relative to the accident.    

In its Opinion, the court affirmed that, under §110, in most cases, a past conviction would bar a future prosecution based upon the same conduct or arising from the same criminal episode. The court noted that the Pennsylvania Supreme Court had recently confirmed that this rule applies even when the previous conviction was for traffic summaries rather than misdemeanors or felonies.

However, it was acknowledged by the court that there was an exception that allowed further prosections for situations in which evidence in support of an additional offense was not known to the prosecuting officer at the time of the commencement of the first criminal trial.

In this matter, the Defendant driver voiced a concern about the possibility of his being prosecuted for new charges arising out of the subject accident if his testimony at a deposition revealed evidence that would support new offenses not previously known by the prosecuting officer at the time of his trial on traffic summaries.

In that regard, the question became whether the Defendant driver had a reasonable basis to fear self-incrimination. In assessing this question, the court in this case noted that the Pennsylvania Supreme Court has stated that “for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of the circumstances that the witness is mistaken in the apprehension of self-incrimination."

The court concluded that the Defendant driver in this case did have a reasonable fear of self-incrimination and, as such, could not be compelled to testify at the deposition in the case without retaining the right to assert his Fifth Amendment rights. 

More specifically, the court noted that the prosecutor could interpret deposition testimony by the Defendant driver to show possible recklessness in the Defendant driver’s actions which could support additional criminal offenses in a matter where the prosecutor may have only been aware of conduct amounting to carelessness before the deposition was completed.

In its Opinion, the court emphasized that the Defendant driver need not establish what he might testify to at a deposition, and that the court could not obviously compel the Defendant driver to explain the factual basis of his fear of self-incrimination, as such a compulsion would pervert the Fifth Amendment right against self-incrimination. Rather, the court allowed the Defendant driver in this case to explain why, at least theoretically, his fear of self-incrimination was reasonable in an effort to establish that it is not “perfectly clear” that the Defendant driver was “mistaken in his apprehension of self-incrimination….”

After a review of the submitted arguments, the court ruled that the Defendant driver could not be compelled to complete a deposition at which he was not entitled to assert his Fifth Amended rights against self-incrimination. 

However, the court also noted that the parties were exploring the possibility of the Defendant driver securing an immunity agreement from the prosecutor at issue.

It was confirmed by the court that, if the Defendant driver secured an immunity agreement from the district attorney, the Defendant driver would have no further fear of future prosecution based upon any deposition testimony in which case the Defendant driver would be compelled to attend the deposition and not be permitted to assert his Fifth Amendment rights against self-incrimination.

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

Claim For Negligent Infliction of Emotional Distress Dismissed Where Plaintiffs' Distress Arose Later, Long After the Physical Impact

In the case of Russell v. Educ. Comm’n For Foreign Med. Graduates, No. 2:18-CV-05629-JDW (E.D. Pa. May 19, 2022 Wolson, J.) (Mem. Op.), the court addressed a unique issue with regard to a claim for negligent infliction of emotional distress in a medical malpractice setting.

This case involved a class of plaintiffs who had received treatment from an individual who had allegedly used fraudulent documents to assert that he was a medical doctor who had completed all of the requirements to practice medicine. This person had been certified by the Defendant commission as a valid doctor.

The Plaintiffs in the class had received treatment from the individual between 2012 and 2016.

Thereafter, the Plaintiffs learned about the individual’s identity in 2017 and 2018.

The Plaintiffs filed suit against the Defendant commission who had incorrectly certified the individual as a valid member of the medical profession. In that Complaint, the Plaintiffs asserted claims for negligent infliction of emotional distress as a part of a class action involving numerous Plaintiffs.

The court in this matter confirmed that Pennsylvania Supreme Court had not addressed the particular issue, that is, whether Plaintiffs could raise a negligent infliction of emotional distress claim when they learned new information about some previous event.

The court in this Russell case stated that, under Pennsylvania law, Plaintiffs had been limited in their ability to pursue negligent infliction of emotional distress claims given that the court had required Plaintiff to suffer physical impact, be in a zone of danger, observe a tortious physical injury to a close relative, or to cases where the Defendant had a special contractual or fiduciary duty owed to the Plaintiff. 

The court additionally noted that the only cases that had relaxed the requirements that the emotional distress at issue be contemporaneous with a physical impact were those cases involving an exposure to disease.

In this Russell case, the Plaintiff alleged that they suffered physical impacts when they received medical treatment from the individual.

However, the court noted that the emotional distress did not accompany that impact. Rather, the alleged emotional distress arose later when the Plaintiffs learned about the individual’s arrest and about his background. The court additionally noted that, between the physical impact and the gathering of the knowledge about the individual’s arrest and background, there was no ongoing threat or risk that caused any of the Plaintiffs’ distress.

Rather, the alleged emotional distress of the Plaintiffs was a product of their re-conceiving their memories in light of the new information gathered.

Judge Wolson in this Russell case predicted that the Pennsylvania Supreme Court would not recognize a negligent infliction of emotional distress claim under these types of facts. The court noted that, while the Plaintiffs' alleged emotional trauma was real, the Pennsylvania Supreme Court had repeatedly made clear that not everyone who experiences an emotional trauma has a legal remedy under Pennsylvania law.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 7, 2022).

Federal Court Keeps Case in Federal Court After Plaintiff Joins Defendants In Apparent Attempt to Destroy Diversity

In the case of Testa v. Broomall Operating Company, L.P., No. 2:21-CV-05148-KSM (E.D. Pa. May 26, 2022 Marston, J.), the court addressed a Defendant’s Motion to Strike a Plaintiff’s Amended Complaint and a Plaintiff’s Motion to Remand the Case to State Court in a matter arising out of a rehabilitation and nursing home negligence case.

According to the Opinion, it was alleged that the Plaintiff’s decedent passed away after contracting COVID-19 at the facility.

After the suit was filed, the Defendants removed the action to federal court on the grounds of diversity and federal question jurisdiction.

Thereafter, the Plaintiff amended her Complaint as of right and clarified that she was not bringing claims under a Federal act and the Plaintiff additionally added the claims of negligence and wrongful death against individual Defendants. The individual Defendants were residents of Pennsylvania and thereby defeated complete diversity.

In response, the Defendants moved to strike the Amended Complaint. The Plaintiff opposed the motion and moved to remand the case back to state court.

The Defendants argued that the joinder of the individual Defendants was impermissible. 

The court exercised its power to review the joinder under F.R.C.P. 21. The court additionally applied federal law and found that, based upon the timing of the filings and Plaintiff’s counsel’s concessions at oral argument, it appeared to the court that the Plaintiff was aware of the identity of the added individual Defendants at the time the case was initiated. 

The court additionally stated that the lack of any “John Doe” Defendants in the original Complaint made it more likely that the individual Defendants were added for the purpose of destroying diversity. 

It was additionally noted that an email Plaintiff’s counsel sent to defense counsel shortly before amending the Complaint supported that theory.

The court additionally restated that the Plaintiff waited over three (3) months from the time she allegedly learned of the individual Defendants’ identities to name them as parties to the action. It was also noted that the Plaintiff did not offer up any legitimate justification for the delay in the joinder.

The court was also influenced by the fact that the Plaintiff would not be prejudice by the absence of the individual Defendants from the lawsuit.

As such, the court found that the applicable factors to be considered weighed in favor of striking the joinder. Accordingly, the court struck the claims brought against the individual Defendants, which restored the complete diversity in the case.

Given that there was complete diversity in the case, the court denied the Plaintiff’s Motion to Remand the case to state court.


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

Pennsylvania Superior Court Addresses Standard of Review For Opening of Judgment Non Pros (Non-Precedential)

In the case of Mark v. McCarthy, No. 991 EDA 2021 (Pa. Super. June 8, 2022 Dubow, J., McLaughlin, J., and King, J.) (Mem Op. by Dubow, J.) (non-precedential), the Pennsylvania Superior Court reversed a trial court’s denial of a Defendant’s Motion to Open a Judgment of Non Pros after finding that the trial court’s reasoning that the Plaintiff’s estate failed to act with diligence was untenable in a case where the the trial court based its decision, in part, on the grounds that the estate did not make Rules absolute within two (2) days. 

In this case, it appeared that the Plaintiff needed pre-Complaint discovery to survive a demurrer and filed multiple motions in an attempt to avoid entry of a judgment of non pros.

According to the Opinion, the estate argued, in part, that because the Defendant had concealed assets of the estate, the estate could not file a Complaint without first conducting pre-Complaint discovery.

In this non-precedential decision, the Pennsylvania Superior Court provided a nice update on the Rules applicable to the entry of judgment non pros and efforts to open the same.

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


I send thanks to Attorney Elizabeth Anderson of Anderson Law Office in Hawley, Pennsylvania for bringing this case to my attention.

Punitive Damages Claims Based Upon Cell Phone Use By Bus Driver Allowed to Proceed to Jury

In the case of Brown v. White, No. 2:21-CV-01387-KSM (E.D. Pa. May 25, 2022 Marston, J.), the court denied a Partial Motion for Summary Judgment seeking the dismissal of claims of punitive damages in a bus accident case.

According to the Opinion, this matter involved a Plaintiff passenger who filed suit against a Greyhound bus driver and his employers alleging, in part, that the driver was reckless in using his cell phone while driving a bus on an overnight trip with 22 passengers.

The record before the court also indicated that, while the Plaintiff slept for most of the trip, she allegedly woke up twice when the bus veered onto rumble strips on the edge of the road. She was also allegedly awoken again at 4:45 a.m. when the bus rear-ended a tractor trailer. It was alleged that the tractor trailer was illuminated and clearly visible but that the bus driver allegedly did not see the tractor trailer until immediately before impact. It was also asserted that the bus was traveling at 72 mph at the time.

In its Opinion, the court noted that, under Pennsylvania law, punitive damages are an extreme remedy that may be awarded only when a Plaintiff has established that a Defendant has acted in any outrageous fashion due to either the Defendant’s evil motive or his or her reckless indifference to the rights of others. The court further noted that a Defendant acts recklessly where his or her conduct creates an unreasonable risk of physical harm to another and such risk is substantially greater than that which is necessary to make his or her conduct negligent.

Judge Marston noted in her Opinion that, while cell phone usage while driving, without more, is typically insufficient to support a finding of recklessness, courts applying Pennsylvania law have held that cell phone usage may rise to the level of recklessness where aggravating factors render the cell phone usage particularly egregious.

In this case, the court found that a reasonable jury could find that the bus driver was using his cell phone while driving. The court noted that a dash cam video from ten (10) seconds before the accident appeared to show a glowing light in the bus driver’s lap near his left hand, which a reasonable jury could understand to be from a cell phone.

The court additionally noted that the bus driver’s cell phone records showed that he used a substantial amount of data in the three (3) hour window around the accident.

The court additionally emphasized that the bus driver was driving a large bus with twenty-two (22) passengers on an overnight trip and that the bus driver was driving a fast as the bus could possibly go, that the bus driver was possibly driving with one (1) hand on the steering wheel. The court also pointed to evidence that the bus driver never tapped the brakes prior to the subject rear-end collision.

The court noted that there were several aggravating factors present in the case that could render the bus driver’s cell phone usage particularly egregious. As such, since the court found that a reasonable jury could find that the bus driver was reckless under the circumstances, the court refused to dismiss the Plaintiff’s punitive damages claims by way of this partial Motion for Summary Judgment.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 24, 2022).

Source of image:  www.pexels.com.

PRESENTING CLE AT UPCOMING WILKES-BARRE LAW LIBRARY ASSOCIATION'S SUMMER OUTING SET FOR JULY 22, 2022

New Monetary Limit for Rule 1311.1 Appeals From Arbitrations Goes Into Effect Today

In an Order that goes into effect today, July 1, 2022, the Pennsylvania Supreme Court has put into place a new rule amending Pennsylvania Rule of Civil Procedure 1311.1 to change the maximum limit of what a plaintiff may elect as the value of damages that they can recover in a 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, that limit is capped at a maximum $50,000 under Section 7361 of the Judicial Code.

Research should be completed to confirm the jurisdictional limit in which the case is pending to determine the maximum amount that a plaintiff can claim at a jury trial in a case on appeal from an arbitration award as those limits can be different depending upon which County Court the case is pending in.

The Pennsylvania Supreme Court's Order approving this amendment to the Rule can be viewed HERE.   The amended Rule 1311.1 can be viewed HERE.

Source:  Article:  "New Arb Appeal Awards Rule Aims to Reduce Apparent Defense Bias." by Aleeza Furman of the Pennsylvania Law Weekly (May 31, 2022).

Source of image:  Photo by Sasun Bughdarvan on www.unsplash.com.