Preliminary Objections Based on Lack of Timely Service of Process Sustained

In the Berks County case of Wilkinson v. Miller, 108 Berks 312 (C.P. Berks Co. 2016), the court sustained Preliminary Objections in a case where the Writ of Summons was filed before the expiration of the applicable statute of limitations but where the Plaintiff took no action to effectuate service for thirteen (13) months, which time period went well past the expiration of the statute of limitations. 

In dismissing the Complaint, the court found a lack of a good faith effort on the part of the Plaintiff required by Pennsylvania law to serve original process upon the Defendant.

I do not have a copy of this decision but have provided the above citation.  


Source:  "Court Summaries" by Timothy L. Clawges, Pennsylvania Bar News (Sept. 26, 2016).

Judge Nealon of Lackawanna County Grants Motion for Coordination of Actions Arising Out of Same Accident But Filed in Separate Counties

In his recent decision in the case of Rogers v. Thomas, No. 12-CV-1464 (C.P. Lacka. Co. Oct. 21, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a Motion to Coordinate two actions filed in two separate counties arising out of the same accident.

Judge Nealon reviewed the Motion for Coordination under the applicable Rule of Civil Procedure, i.e., Pa.R.C.P. 213.1.

The cases involved a shooting incident that occurred in Susquehanna County.  There was one action pending in Susquehanna County and one action pending in the Lackawanna County Court of Common Pleas.

Given that (1) the incident occurred in Susquehanna County, (2) the two cases involved the same theories of liability, (3) each case was supported by the same fact and expert witnesses, (4) Susquehanna County was the most convenient forum for the witnesses and (5) given that there was no connection with Lackawanna County, the court granted the Motion and ordered that the cases be coordinated in Susquehanna County.

Judge Terrence R. Nealon
Lackawanna County

In so ruling, Judge Nealon noted that coordination of these actions would further the Rules goal of avoiding duplication of effort, avoiding multiple trials on the same matter,and avoiding inconsistent judicial decisions and verdicts.

Anyone wishing to review this decision may click this LINK.

Federal Middle District Court Judge James M. Munley Grants Offensive Motion for Summary Judgment Filed by Plaintiff on Liability in Car Accident Case

In the case of Broe v. Manns, No. 3:15-cv-985 (M.D. Pa. Sept. 27, 2016 Munley, J.), Judge James M. Munley of the United States District Court for the Middle District of Pennsylvania granted an offensive Motion for Summary Judgment filed by the Plaintiffs on the issue of liability in a motor vehicle accident case.  

According to the Opinion, this case arose out of a rear-end motor vehicle accident.  

The Plaintiff filed a Complaint alleging negligence and loss of consortium. Thereafter, the Plaintiff moved for partial summary judgment on the issue of liability.  

After reviewing the summary judgment standard of review, the court granted the Plaintiff’s Motion for Partial Summary Judgment on liability.  

The Plaintiff main contention was that the Defendant’s admission that he failed to brake to avoid the Plaintiff’s vehicle constituted negligence per se.  

The Defendant countered with an argument that his admission, given during a deposition, was an insufficient basis upon which to grant summary judgment.   The Defendant also asserted that the sudden emergency doctrine relieved him from liability. 

The court stated that it is well-settled that a violation of the Pennsylvania Motor Vehicle Code constitutes negligence per se.   Relying upon Pennsylvania Motor Vehicle Code provisions, including the assured clear distance ahead statute at 75 Pa. C.S.A. §3361, and noting that the police cited for violating that statute, the court found that the Defendant’s admission in this regard eliminated any genuine issue of material fact.   The court found that the Defendant’s admissions, coupled with the citations for violating the assured clear distance ahead statute, sufficiently established negligence per se.   Since the Defendant had not identified any genuine issues of material fact, the court found that there was no sufficient evidentiary basis upon which a reasonable jury could find in the Defendant’s favor on the liability issue.  

The court also rejected the Defendant’s reliance upon the sudden emergency doctrine noting that, under the applicable law, a person cannot avail himself of the protections of that doctrine if that person was himself driving carelessly.   The court stated that, based upon the Defendant’s citation for violating the motor vehicle code, along with his admissions on the issue of liability, the undisputed evidence before the court was found to establish, at the very least, that the Defendant was driving carelessly.  As such, the court found that the Defendant could not rely upon the sudden emergency doctrine to relieve him from liability.  

As stated, overall, the court granted Plaintiff’s Motion for Partial Summary Judgment on the issue of liability.

 

Anyone wishing to review a copy of this decision may contact me at dancummins@comcast.net.

 

I send thanks to Attorney Michael J. Foley of The Foley Law Firm of Scranton, Pennsylvania for bringing this case to my attention.  

 

 

Judge Brann Applies Iqbal/Twombly Motion to Dismiss Standard of Review

In the case of Long v. Hartford Life and Accident Insurance Co., No. 4:16-CV-00138 (M.D. Pa. Aug. 29, 2016 Brann, J.), Judge Matthew W. Brann of the Middle District of Pennsylvania thoroughly reviewed the current status of the Iqbal/Twombly standard of review for federal court motions to dismiss in the context of breach of contract and bad faith claims arising out of an insurance dispute.

Judge Matthew W. Brann
M.D. Pa.

The court granted the motion in part and denied it in part.  More specifically, the court found that the Plaintiff had adequately pled a breach of contract claim and a general Section 8371 bad faith claim.

However, the court granted the defendant's motion to dismiss another portion of the Section 8371 bad faith claim, finding that Pennsylvania law does not provide recovery for such a claim based upon alleged violations of the Pennsylvania Unfair Insurance Practices Act.

Anyone wishing to review this decision by Judge Brann may click this LINK.

SAVE THE DATE: Lackawanna Pro Bono Gala - October 27, 2016

The Lackawanna Pro Bono Gala is set to take place at the Scranton Cultural Center Ballroom on October 27, 2016 from 6:30 pm - 8:30 pm.  RSVP by October 20, 2016.

Program Book Ad opportunities are available with an Ad deadline of October 13, 2016.

Here is a LINK to more information on the purchase of Ads or Tickets to the event.

Tickets or Ads can also be purchased on the Lackawanna Pro Bono website HERE.

Failure To Specify Location of Fall Leads to Summary Judgment

In the case of White v. Seherlis, August Term 2014, No. 2511 (C.P. Phila. Co. July 8, 2016 Sarmina, J.), the court entered summary judgment in favor of a Defendant in a case in which the Plaintiff failed to precisely designate the location where she allegedly slip and fell on an allegedly icy, unshoveled sidewalk.  

The court noted in its Opinion that, at trial, the Plaintiff gave slightly conflicting testimony as to the exact location, which raised questions for the jury as to whether the location of the fall was on the Defendant’s property or the property at some other entity.  Although the jury found the Defendants negligent in general, they ruled that the Plaintiff failed to meet her burden of proving the location.  

In this Opinion, the trial court was recommending to the Superior Court that its findings on the Plaintiff's Post-Trial Motions be upheld on appeal. 

 

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

 

Source:   “Instant Case Digest,” Pennsylvania Law Weekly (September 2, 2016).

Middle District Federal Magistrate Judge Predicts How Pennsylvania Supreme Court Would Rule on PIP IME Issue

In the case of Scott v. Traveler's Commercial Ins. Co., No. 1:14-CV-00535 (M.D.Pa. Oct. 6, 2016 Schwab, M.J.), Federal Magistrate Judge issued an opinion addressing the interplay between an insurance policy provision requiring an insured to undergo IMEs as often as may be reasonably requested by the carrier and a provision of Pennsylvania's Motor Vehicle Financial Responsibility Law (75 Pa.C.S.A. Section 1796) requiring an insurer to petition the state court with a showing of good cause to obtain an order compelling the insured to undergo an IME.

The federal court noted that this was an issue that had not yet been addressed by the Pennsylvania Supreme Court but was a recurring issue in the courts below.

The issue arose in a First Party medical benefits breach of contract case where the carrier denied coverage on the basis, at least in part, of the insured's refusal to attend an IME.

The Scott court predicted that, if faced with the issue, the Pennsylvania Supreme Court would find that the MVFRL's provision prevails over the conflicting insurance policy provision pertaining to IMEs.  Accordingly, the court granted summary judgment to the insured on the liability aspect of his breach of contract claim.

The Plaintiff's bad faith claim was found to be barred by the statute of limitations.


Anyone wishing to read this opinion in Scott may click this LINK.

I send thanks to Attorney Matthew S. Crosby of the law firm of Handler, Henning & Rosenberg, LLC for bringing this case to my attention.  Attorney Adam Reedy of that office handled the matter.