Legal Malpractice Claim Found to be Barred By Statute of Limitations

In the case of Am. Mushroom Coop. v. Saul Ewing Arnstein & Lehr, LLP, No. March Term, 2020 No. 02211 (C.P. Phila. Co. Aug. 17, 2022 Padilla, J.), the court issued a Rule 1925 Opinion requesting that the Pennsylvania Superior Court affirm the trial court's previous Order granting a Defendant’s Motion for Judgment on the Pleadings in a legal malpractice claim.

The court found that the claims presented by the Plaintiff in this action were barred by the statute of limitations.

After reviewing the record before it, the court held that the Plaintiffs’ malpractice claims were time-barred since the Plaintiff first knew or should have known that they had been allegedly injured by allegedly erroneously legal advice back in 2004.

The case revolved around the Plaintiff’s execution of a consent judgment in a Department of Justice investigation of the business practices of the Plaintiff that were purportedly based upon the same legal advice.

As noted, the court found that the Plaintiff’s claims were time-barred and entered judgment on the pleadings in favor of the Defendant law firm.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 29, 2022).

Court Addresses Ability of Non-Settled Defendant To Have Settled Defendants On the Verdict Slip

In the case of Williams v. Glenmaura Senior Living at Montage, LLC, No. 21-CV-1494 (C.P. Lacka. Co. Nov. 7, 2022 Nealon, J.), the court considered a motion filed by a Defendant doctor for reconsideration of the court’s previous Orders which discontinued the case as to other named Defendants which previous dismissal from the case of those Defendants was based upon those Defendants entering into earlier joint tortfeasor settlement agreements with the Plaintiff.

According to the Opinion, this case arose out of a medical professional liability action against numerous Defendants related to a slip and fall event that occurred on the premises after which the alleged negligent treatment by the medical Defendants allegedly resulted in the death of the Plaintiff.

After reviewing Pennsylvania Rules of Civil Procedure 229 regarding the Discontinuance of actions, the court rejected the moving medical Defendant’s argument that the settled Defendants must remain in the case and on the Verdict Slip.

In this regard, the court found no evidence presented by the moving Defendant that warranted keeping the settling Defendants in the case. Of note, the court stated that there was no valid expert evidence that would be presented by the moving Defendants to keep the settled Defendants in the case. 

The court also noted that the moving Defendants reference to certain standard of care and causation opinions of one of the experts in the case was not admissible as such testimony constituted hearsay. The court reiterated the rule of law that one expert may not act as mere conduit or transmitter of the content of an admissible evidence or other expert opinion where the testifying expert does not bring to bear on it his own expertise or judgment.

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

Federal Court Reviews Five Factor Test for Imposition of Discovery Sanctions

In the case of Garcia v. S&F Logistics, No. 5:21-CV-04062-JMG (E.D. Pa. Oct. 24, 2022 Gallagher, J.), the court granted discovery sanctions against a Defendant in the form of a default judgment of liability against those Defendants where the Defendants had repeatedly failed to respond to discovery requests or appear for depositions despite Court Orders to do so.

According to the Opinion, this case arose out of a trucking accident.

In entering its Order, the court additionally noted that defense counsel had trouble establishing contact with the Defendants.

In the Opinion, the Court reviewed the Federal Court standard of review for the imposition of discovery sanctions, which includes an analysis of five factors set forth in the decision, and also noted that the trial court judge had wide discretion in this regard.    

The court found that the Plaintiff had been materially prejudiced by the Defendants’ discovery violations. Because the court anticipated that there would be no change in the Defendants’ behavior, the court concluded that the most effective sanction would be to bar the Defendants from contesting liability at trial.

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 (Nov. 10, 2022).

Source of image: Photo by Ekaterina Bolovtsova from www.pexels.com.

Court Addresses Proper Damages Recoverable in a Medical Malpractice Action Involving An Older Retired Adult

In the case of Williams v. Glenmaura Senior Living at Montage, LLC, No. 21-CV-1494 (C.P. Lacka. Co. Nov. 4, 2022 Nealon, J.), Judge Terrence R. Nealon addressed the proper damages recoverable and the supporting evidence required in a medical professional liability action involving the death of a retired older adult.

In particular the court addressed this issue in terms of a Plaintiff’s effort to seek to recover damages under the Wrongful Death Act, 42 Pa. C.S.A. §8301, and the Survival Act, 42 Pa. C.S.A. §8302.

After outlining what types of damages are available to be recovered under each of these elements of avenues of damagers,

After reviewing the record before him, the court found that, since the Plaintiff had not produced an expert report to provide the jury with evidence of the effect of productivity and inflation over time, the applicable discount rate required by the law, and the decedent’s personal maintenance cost, for food, clothing, shelter, medical attention, and some recreation, the Plaintiff could not satisfy her burden of proof under the law in order to advance and sustain a claim in the Survival action for the decedent’s loss of earnings or income.

The court further found that the Plaintiff’s intended use of the decedent’s adjusted gross income as the measure of his estate’s recoverable economic damages would erroneously include forms of income that did not arise from the decedent’s intellectual or body laborer and, as such, are not proper items of damages under the Survival Act.

Accordingly, the court ruled that the Defendant’s Motion In Limine to preclude the Plaintiff from pursuing any type of claim for loss of earnings/income at the trial of the case was granted.

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

Court Rejects Carrier's Argument That Sign Down Forms Secured For One Policy Carried Over to Later Policy

In the case of Woloszyn v. Nationwide Prop. & Cas. Ins. Co., No. 10246 of 2022, C.A. (C.P. Lawr. Co. Oct. 6, 2022 Hodge, J.), the court denied a Defendant carrier’s Motion to Dismiss a Plaintiff’s bad faith insurance claim.

In this matter, which arose out of a motor vehicle accident, the Defendant carrier argued that it was not obligated to provide coverage because the carrier had secured a sign down form from the Plaintiff relative to the Plaintiff’s previous policy with the carrier. The carrier noted that the more recent insurance policy provided to the Plaintiff, which was in effect at the time of the accident, was just a rewriting of the previous policy. As such, the carrier asserted that the securing of another sign down form was not required.

The court in this matter disagreed with the carrier's argument and held that, under 75 Pa. C.S.A. §1731, the carrier was required to secure another sign down form and that, therefore, the Defendant’s argument that the old coverage limits transferred to the new policy failed as a matter of law.

The court noted that, while the Defendant carrier argued that the new policy simply assumed the sign-down provision of the Plaintiff’s previous policy, the court noted that the Defendants had failed to produce a signed copy of the previous rejection form indicating that the Plaintiffs understood that they were rejecting underinsured and uninsured motorist coverage.

Based upon these reasons, the court denied the Defendant’s Motion to Dismiss.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 22, 2022).

Summary Judgment Motion Filed by Store Denied In Part In Case Involving Altercation Between Two Customers

In the case of Cimbat v. Old Navy LLC, No. 21-2657 (E.D. Pa. Oct. 31, 2022 Beetlestone, J.), the court ruled that a Defendant’s Motion for Summary Judgment would be denied as to the negligence claims in a premises liability case where the Plaintiff presented issues of fact regarding whether the store had sufficient protection in place for the Plaintiff after she accused another customer of shoplifting.  The summary judgment motion was granted with respect to the claims asserted of Intentional Infliction of Emotional Distress. 

According to the Opinion, the Plaintiff was assaulted by another customer at an Old Navy store after the Plaintiff approached that customer when she observed the customer attempting to shoplift.

Thereafter, the Plaintiff went to a store employee to report to the attempting shoplifting. That employee informed the store manager, after which the accused shoplifting customer when into the fitting room area. The Plaintiff, believing that the issue was being handled, continued to shop.

However, shortly thereafter, the manager later heard the Plaintiff exclaim, “How are you just going to let her take that stuff where I have to pay for it?”

The record also indicated that the Plaintiff was informed by another employee that the accused shoplifting customer was tampering with a price tag gun in the fitting room and also appeared to be under the influence of drugs or alcohol.

Shortly thereafter, the alleged shoplifting customer approached the Plaintiff in the checkout line and spat in her face. The Plaintiff reacted by throwing a punch to get the customer out of her personal space. The alleged shoplifting customer then connected with a punch to the Plaintiff and then began kicking the Plaintiff after she fell to the ground.

In reviewing the Motion for Summary Judgment filed by the Old Navy store, the court granted the Defendant’s Motion relative to the Plaintiff’s claims of intention infliction of emotional distress. The court stated that the record was insufficient to demonstrate that the employees of the store were deliberately indifferent by failing to take further precautions after discovering that the other customer was attempting to shoplift and appear to be under the influence.

However, the court declined to dismiss the Plaintiff’s premises liability negligence claims. The court found that there was no sufficient facts in the records to support a jury finding that the store had failed to exercise reasonable care in protecting the Plaintiff from harm from the accused shoplifter. The court noted that there was evidence that the store employees suspected that the shoplifter was under the influence and thereby posed a risk of starting an altercation. There was also conflicting evidence as to whether or not the employees of the store were trained to handle intoxicated customers or customer-on-customer altercations.

The court rejected the defense contention that the Plaintiff’s own actions, including falsely representing that she was a store employee and swinging a fist at the shoplifter contributed to the assault that the Plaintiff suffered. The court found that these actions by the Plaintiff were too remote in time to conclusively establish that they were a contributing factor to the assault.

As such, overall, the court concluded that the record contained facts that could allow to conclude that the store was negligent in failing to protect the Plaintiff from an assault on the premises of the store.


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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 18, 2022).

Denial of Motion To Transfer Venue Affirmed On Appeal

All in all, they'd rather be in Philadelphia

In the case of Ritchey v. Rutter’s Inc., No. 2219 EDA 2020 (Pa. Super. Oct. 20, 2022 Dubow, J., Pellegrini, J., Lazarus, J.) (Op. by Lazarus, J.), the Pennsylvania Superior Court ruled that a trial court properly denied Defendants’ Motion to Transfer Venue on the basis of the doctrine of forum non conveniens because, although the Defendant showed inconvenience with the venue selected by the Plaintiff, there was no showing of oppressiveness.   

The Pennsylvania Superior Court also found that there was no evidence that the trial court’s decision rose to the level of overriding or misapplying the law.  The Superior Court also found that the trial court’s decision was not manifestly unreasonable. 

According to the Opinion, the Plaintiff resided in Cumberland County and the Defendant Pennsylvania Corporation had its principle place of business place of business in York and regularly conducted business in Philadelphia.   

This case arose out of a motor vehicle accident.  The Plaintiff was treated in Dauphin County, Philadelphia County, and Cumberland County.  The Plaintiff filed suit in Philadelphia.   

Under Pa. R.C.P. 2179, a corporate Defendant may be sued in any county in which it regularly conducts business.   

The Defendant in this matter filed a Motion to Transfer Venue from Philadelphia County to either Cumberland or York County under Pa. R.C.P. 1006(d)(1).   The Defendant attached twenty (20) witness affidavits to its motion confirming that venue in Philadelphia would be a “great hardship.”   

When the trial court denied the Motion to Transfer, the Defendant appealed.  As noted, the per Superior Court upheld the trial court’s decision.   

In upholding the denial of the motion, the appellate court found that the trial court did not abuse its discretion in denying the Motion to Transfer where there is evidence that two (2) eyewitnesses to the accident noted their willingness to travel to Philadelphia to testify where the Plaintiff received three (3) months of medical care in Philadelphia County, and where the Defendants’ affidavits asserting inconvenience amounted to nothing more than a superficial showing of inconvenience.   

Also, with respect to any hardship, the Pennsylvania Superior Court noted that, in this day and age, technology to conduct remote depositions and/or to gather witness statements had become a vital and regular component of pre-trial discovery in civil litigation matters.   

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Nov. 8, 2022).