Judge Mariani of Federal Middle District Court Reviews Law of Personal Jurisdiction in Federal Court

In the case of Burnside v. Peterbilt Motors Co., 3:17-CV-2121 (M.D. Pa. June 28, 2018 Mariani, J.), the court granted a Defendant’s Motion to Dismiss based upon jurisdictional objections.  

This products liability claim arose out of an incident during which the Plaintiff was injured when a bobtail truck he was using began leaking propane and then caught fire.

Judge Mariani provided a detailed review of the current standards for properly finding jurisdiction over a foreign defendant in a Pennsylvania federal court matter.

In this matter, the court stated that the Plaintiffs did not allege that the Defendant directed any activities to Pennsylvania or sent the product at issue to Pennsylvania.  The court also noted that the Plaintiff did not even allege how the product came to be in Pennsylvania.  

The court ruled that a Plaintiff cannot establish personal jurisdiction over a Defendant through the stream of commerce theory under the facts of this case.  

As such, the court granted the Defendant’s Motion to Dismiss but allowed the Plaintiff to conduct limited jurisdictional discovery before the case was completely dismissed.

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

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

Summary Judgment Denied in Dog Bite Case, But Punitive Damages Claim Dismissed

In the case of Pollack v. Shell, No. 14-CV-8009 (C.P. Lacka. Co. Aug. 7, 2018 Nealon, J.), the court addressed theories of liability asserted against an out-of-possession landlord in a dog bite case involving a pit bull.

Judge Terrence R. Nealon
Lackawanna County

 Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the current status of Pennsylvania law in this regard and noted that, in order for liability to rest against an out-of-possession landlord in this context, a plaintiff must prove that the out-of-possession landlord had actual knowledge of the presence of the animal on the premises and possessed the right to control or remove the animal by retaking the leased premises.

Here, the court found issues of fact prevented the entry of summary judgment on the negligence allegations asserted by the Plaintiff.  The record contained evidence of alleged knowledge on the part of the landlord of prior attacks/bites by the dog along with evidence that the landlord had the right to retake the premises from the tenant and did not do so.

However, the court did grant the Defendant's Motion for Summary Judgment against the punitive damages claims as facts only showed alleged negligence on the part of the landlord.  The record was noted to be devoid of any evidence that the landlord acted in conscious disregard of a known risk or harm to others.

Anyone wishing to review this decision may click this LINK.

Have a dog bite case you are trying to settle?  Please do not hesitate to let me know if I can assist as a Mediator.   Resume and fee schedule available by contacting me at dancummins@comcast.net.

Pennsylvania Superior Court Addresses Duty Of Mental Health Providers to Warn Others of Dangers Posed by Psychiatric Patient Who Threatens

In the case of Maas v. UPMC, 2018 Pa. Super. 195 (Pa. Super. June 29, 2018 Bowes, J., Stabile, J., Ford Elliot, P.J.E.) (Op. by Bowes, J.), the Pennsylvania Superior Court denied a Defendant’s Motion for Summary Judgment involving a case on the duty of  psychiatric treatment providers to warn others of dangers posed by psychiatric patients. 

According to the Opinion, the psychiatric patient threatened to kill “neighbors” and described a sufficiently ascertainable group such that the law imposed a duty upon the treatment providers to warn those persons of the threats.  

 The court noted that a duty to warn exists under these circumstances where the target is identifiable, not just identifiable by name, such that the mental health professionals must use reasonable efforts to identify the potential victims and provide them with warnings.  

In the case, the court noted that the potential group of victims was about 20 people, which was deemed to be manageable of people to warn.  

To review this case, please click HERE. 

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

Jurisdiction Found To Lie In Pennsylvania Over Foreign Corporation

In the case of Webb-Benjamin LLC v. International Rug Group, LLC, 2018 Pa. Super. 187 (Pa. Super. June 28, 2018 Stabile, J., Musmanno, J. and Ford Elliot, P.J.E.) (Op. by Musmanno, J.), the Pennsylvania Superior Court reversed a trial court’s decision sustaining the Preliminary Objections filed by a Connecticut Defendant.  

The Superior Court ruled that the trial court erred in holding that the trial court did not have personal jurisdiction over the Defendant Connecticut company in a breach of contract action because the Defendant registered to do business in Pennsylvania as a foreign association and nothing under 42 Pa. C.S.A. §5301 limited jurisdiction over foreign associations to claims that only occurred after registration.

The Superior Court additionally found that, by registering in Pennsylvania to do business, the Connecticut Defendant consented to general personal jurisdiction.

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

Source:  “Digest of Recent Cases.”  Pennsylvania Law Weekly (July 24, 2018).  


For an excellent analysis on this issue, check out this LINK to an article by Attorney Dale Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP entitled "Personal Jurisdiction Over Out-of-State Corporations After Daimler - What Now?"

Updates, Thoughts and Trends Regarding Pennsylvania Civil Litigation Law by

Northeastern Pennsylvania Insurance Defense Attorney Daniel E. Cummins

Several Notable Decisions by Pennsylvania Superior Court on Civil Litigation Issues Handed Down in a Single Case

In the case of Hammons v. Ethicon, Inc., 2018 Pa. Super. 172 (Pa. Super. June 19, 2018 Ott, J., Stabile, J., Stevens, P.J.E.) (Op. by Stabile, J.), the Pennsylvania Superior Court reviewed several civil litigation issues of interest in this products liability case.   In the end, the court affirmed a judgment in favor of the Plaintiffs on appeal.  

With regards to issues pertaining to personal jurisdiction over Defendants, the court reaffirmed the rule that a Defendant challenging personal jurisdiction has the burden of supporting that objection.   See Op. at 15.

The court provided a detailed summary of the current status of the law pertaining to personal jurisdiction based upon a review of several notable United States Supreme Court Opinions, the most recent of which was in the case of Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, __ U.S. __, 137 S. Ct. 1773 (2107).   Concisely, after the Bristol-Myers case, the following three (3) elements must be met in order for specific personal jurisdiction to lie over a defendant:  

First, a defendant must have purposefully conducted activities within the forum state, or must have purposefully directed its conduct towards the forum state.  

Second, the plaintiff’s claim must arise out of or relate to the defendant’s activities in the forum state or directed towards to the forum state.  

Third, overall, a finding of jurisdiction over the defendant must be fair and reasonable.  

Here, the court found that the Defendant’s suit-related contacts justified jurisdiction in that the particular Defendant supervised the design and manufacturing process of its product in Pennsylvania in collaboration with a Pennsylvania company.  The court additionally noted that this particular Defendant also worked with a Pennsylvania physician in developing and marketing the product which, in this case, was a medical product used to treat prolapsed pelvic organs.  

In another notable decision on a separate issue, the Pennsylvania Superior Court ruled evidence of spoliation may be admitted at trial under principles of relevance and prejudice even where a spoliation-related sanction is not issued by the court.   See Op. at 56.  The court found that evidence of document destruction in this case was highly relevant under the case presented and that the probative value of that evidence outweighed any prejudice to the Defendant.  

In this decision, the court also addressed the Defendant’s Motion for Remittitur, seeking a reduction of the substantial verdict.  Applying Pennsylvania law, the Pennsylvania Superior Court affirmed the trial court’s decision denying the Defendant’s Motion in this regard.

The Superior Court reaffirmed that, under Pennsylvania law, the decision to grant a remittitur depends on whether the award of compensatory damages lies beyond “the uncertain limits of fair and reasonable compensation” or whether the verdict “so shocks the conscience as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption.”  See Op. at 69.  

The Pennsylvania Superior Court in this Hammons case also reaffirmed the law of Pennsylvania that Rule 238, pertaining to the imposition of delay damages, limits the calculation of the delay damages to compensatory damages.   The court stated that, even after amendments to Rule 238 from back in 1988, Rule 238 delay damages are not to be applied to the punitive damages aspects of a jury’s verdict.  

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

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

Pennsylvania Supreme Court Overrules 30 Years of Precedent Pertaining to Motor Vehicle Exception to Governmental Immunity Under Tort Claims Act

In the case of Balentine v. Chester Water Authority, No. 119 MAP 2016 (Pa. Aug. 21, 2018 Mundy, J.) (Justices Todd, Dougherty, and Wecht joined in the majority Opinion) (Baer, J., concurring) (Saylor, dissenting, J.), the Pennsylvania Supreme Court addressed the issue of whether the Commonwealth Court erred in holding that the involuntary movement of a vehicle does not constitute operation of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. §8542(b)(1).   The Supreme Court reversed the Commonwealth Court's decision and, in the process, 30 years of precedent on the issue presented.

By way of background, the Plaintiff's decedent was a contractor hired to rehabilitate a section of a water distribution system.  At the time of the accident, the decedent was working just off to the side of a two lane road.   The decedent was inside a ditch located on the grassy strip between the sidewalk and the curb when an inspector drove up to the work site and parked his vehicle, with the engine running, approximately 10-15 feet from the ditch.  

A few moments later, a vehicle operated by another person struck the inspector's parked vehicle, causing it to move forward.   The parked vehicle struck the decedent was he stood in the ditch, drug him out and pinned him under the vehicle when it came to a stop. The decedent sustained fatal injuries.  

The decedent's estate filed a lawsuit against various Defendants.  Certain governmental Defendants obtained summary judgment from the lower court under an argument that neither the motor vehicle exception nor the traffic control device exception to governmental immunity set forth in the Political Subdivision Tort Claims Act applied.   On appeal, a divided panel of the Commonwealth Court affirmed the trial court's decision.   

At the Commonwealth Court level, that court indicated that, since “no Pennsylvania case law addresses whether involuntary movement of a vehicle constitutes operation for purposes of the governmental immunity exception, this is a matter of first impression.”  

Relying upon the fact that the vehicle at issue was parked at the time of the accident, the majority in the Commonwealth Court considered itself “constrained” to conclude as a matter of law that that vehicle was no longer in operation when the accident occurred.  As such, the Commonwealth Court concluded that the involuntary movement of that vehicle did not constitute ‘operation’ for purposes of the motor vehicle exceptions to governmental immunity.  

Further up on the appellate ladder, after reviewing the law behind the Tort Claims Act, the majority of the Pennsylvania Supreme Court held that movement of a vehicle, whether voluntary or involuntary, is not required by the statutory language of the vehicle liability exception. 

As such, the Supreme Court reversed the decisions of the lower courts and remanded the case back  the trial court.  

In reaching its decision, the Pennsylvania Supreme Court confirmed that the word “operation” was not defined in the Tort Claims Act.   As such, the Supreme Court turned to Black’s Law Dictionary and prior Pennsylvania case law addressing the proper definition of that term in this context.   The majority emphasized that the vehicle liability exception to governmental immunity only referred to “operation,” and not to “motion.”  

With its ruling, the Pennsylvania Supreme Court overturned thirty (30) years of precedent on this particular issue, including numerous prior decisions where the immunity was held to apply in accidents involving vehicles that are stopped or parked.   That is no longer the law under this decision.  

The Pennsylvania Supreme Court ruled, in this case, that “[w]here a government vehicle obstructs a roadway, in whole or in part, we can assume, absent evidence to the contrary, that a government agent operated the vehicle to arrive at that position.”  See Op. 15.  

More specifically with respect to this case, the court found that, if a Plaintiff establishes that his injury was caused by an illegally parked government vehicle, but the movement of the vehicle itself did not cause the injury, the government would not avoid liability simply because the government vehicle was not “in motion” at the time of the injury.  Id. at 15-16.  

The Pennsylvania Supreme Court adopted the definition of an operation of a vehicle voiced by Justice Newman in her Dissenting Opinion in the case of Warrick v. Pro Cor Ambulance, Inc., 739 A.2d 127, 129 (Pa. 1999) (Newman, J. dissenting).  

Justice Newman recognized in that Dissenting Opinion that the operation of a vehicle “reflects a continuum of activity,” which entails “a series of decisions and actions, taken together, which transport the individual from one place to another.   The decisions of where and whether to park, where and whether to turn, whether to engage brake lights, whether to use appropriate signals, whether to turn lights on or off, and the like, are all part of the ‘operation’ of a vehicle.”  Id. at 128. (Newman, J. dissenting). 

The Pennsylvania Supreme Court in this Balentine case adopted Justice Newman’s definition, and found that definition to represent a reasonable standard that comports with the intent of the legislature behind the Tort Claims Act and avoids what the Pennsylvania Supreme Court deemed to be illogical results over the past 30 years of precedent that flowed from the prior emphasis on the need for motion in the previous cases.  

The Majority Opinion of the Court in Balentine can be viewed HERE.

Justice Baer's Concurring Opinion can be viewed HERE.

Chief Justice Saylor's Dissenting Opinion can be viewed HERE.

Another Court Says No Bad Faith Where No Underlying Coverage Under Policy

In the case of Campbell v. State Farm Fire & Cas. Co., No. 2:18-cv-00292 (W.D. Pa. July 18, 2018 Hornak, J.), the court granted a carrier’s Motion to Dismiss a lawsuit filed against the carrier for breach of contract for failing to pay for fire damage to the Plaintiff’s home and for bad faith related to an alleged denial of the claim for coverage without a legal basis to do so.  

The court ruled that the Plaintiff had failed to state a valid cause of action with regards to the breach of contract claim and the coverage issues presented in this fire loss case.  More specifically, the court found that the premises in question did not meet the policy definition of residential premises so as to entitle the insured to coverage under the policy.  

The court noted that, in light of the dismissal of the breach of contract claim after the finding of no coverage under the policy, the Plaintiff’s bad faith claim could not survive in the absence of any coverage under the policy.  As such, Plaintiff’s Complaint as dismissed with prejudice in its entirety.

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

I send thanks to Attorney Lee Applebaum, the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog and of the Philadelphia law firm of Fineman, Krekstein & Harris for bringing this case to my attention. 

Click HERE to check out Attorney Applebaum's bad faith case law Blog.