Welcome News Regarding Citation to Unpublished Decisions Marked As Non-Precedential By Pennsylvania Superior Court

Pursuant to amendments to Pa.R.A.P. 126, effective May 1, 2019 and going forward, judges and litigators will be permitted to cite to all Pennsylvania Superior Court memorandum opinions as persuasive precedent on the issues presented. 

As the amendments to Pa.R.A.P. 126 are not retroactive, previous memoranda opinions issued by the Pennsylvania Superior Court still cannot be cited as precedential. 

As such it is important to remember to look at the date of any unpublished Superior Court opinions and to make sure that the date of the opinion is on or after May 1, 2019 in order to determine if it can be cited as a supporting legal authority.

The Rule provides that, if such an unpublished, non-precedential decision is cited, the litigator “shall” include a parenthetical immediately following the citation indicating the value of the decision, i.e., that it was an unpublished decision that was marked non-precedential.  See Pa.R.A.P. 126(a).

The exact language for that parenthetical was not provided in the amended Rule but elsewhere in the Rule it is indicated that non-precedential decisions “may be cited for their persuasive value.”  See Pa.R.A.P. 126(b)(2).

The Rule also mandates that litigators “shall” attach to the filing a copy of any unpublished, non-precedential decisions cited within the filing.  Pa.R.A.P. 126(a).

Under the Commentary to the Rule, it is indicated that litigators are encouraged to also cite to the Westlaw and/or Lexis citation for any unpublished opinions that are cited. 

The Commentary additionally notes that opinions of the appellate courts are all posted online at http://www.pacourts.us.   That website has search and filtering options to utilize in searching for relevant decisions of the appellate courts.

Commonwealth Court rules regarding citation to its unpublished opinions, which has been allowed by that court since as far back as 2008, were also formally adopted in these amendments and were not changed in any way.

The Commentary to the amended Pa.R.A.P. 126 also offers some interesting points.

For example, the Commentary confirms that litigators and courts need only to cite to the national reporters and that parallel citations to local reporters are not required.  That is, litigators need only to list the A., A.2d or A.3d citations and not the parallel Pa. or Pa. Super. citations as well.

Also, the Commentary notes that litigators are encouraged to cite to the specific pages in any decisions cited that are relevant to the legal point put forth.

Anyone wishing to review the amended Pa.R.A.P. 126 may click this LINK.

I send thanks to Attorney Jim Beck of the Philadelphia office of the Reed Smith law firm for bringing this notable development to my attention. 

Standards For Meeting $75,000 Requirement To Remove Case to Federal Court

In the case of Hutchinson v. State Farm Fire & Cas. Co., No. 18-CV-2588 (E.D. Pa. Jan. 28, 2019 Goldberg, J.), Judge Mitchell S. Goldberg set out useful examples and principles regarding the removal of statutory bad faith claims to the federal court.  

Essential issue in this regard is the degree of certainty required to measure claims made against the federal court jurisdictional requirement that a case has a value of at least $75,000.00.   What follows are some of the examples and principles identified by the court:

1. The sum at issue is determined relative the time the Petition to Remove the Matter Federal Court is filed.

2.  The courts do not look at the low end of an open-ended claim. To the contrary, the test is “a reasonable reading of the value of the rights being litigated.” 

3.  Punitive damages and attorneys’ fees may be considered in statutory bad faith cases.

4. There is no recovery cap on the punitive damages that attorneys’ fees available under the bad faith statute. (However, the attorneys’ fees must reasonable and the U.S. Supreme has placed limits on punitive damages to conform to due process of law requirements).

5.  In a bad faith case, the “amount in controversy exceeds the $75,000.00 threshold where a Plaintiff is able to recover a specified amount of damages, plus punitive damages and attorneys’ fees…”

In this case, where the Plaintiff’s claim was for specified damages of $24,711.11 plus punitive damages was found to meet the $75,000.00 jurisdictional threshold.  

The court otherwise noted that, in contrast, a failure of a Plaintiff to plead specified unpaid benefit amounts in a bad faith claim works against a decision to allow for the removal of the case to federal court.  

The court noted as examples two (2) cases in which the action was remanded where a Plaintiff pled lost benefits in “an amount not in excess of $50,000.00” and punitive damages “not in excess of $50,000.00.”

It is noted that, in this Hutchinson case, although the $75,000.00 jurisdictional threshold was found to have been met, the court still remanded the action back to state court because the removal was untimely.  As such, the carrier’s efforts to remove the case to federal court were denied.   

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

I send thanks to Attorney Lee Applebaum of the Philadelphia law offices of Fineman, Krekstein & Harris for bringing this case to my attention.  Please be sure to check out Attorney Applebaum’s excellent blog entitled the Pennsylvania and New Jersey Insurance Bad Faith Case Law blog. 

Can You Help By Serving as a Mock Trial Juror?

Below are the dates for the Mock Trial Competition in LACKAWANNA COUNTY and information on how to register to serve as a Juror.  Many attorneys are needed to fill many Jury Boxes on these last few dates for the Competition in Lackawanna County.  Can you help?

Trial Dates:

Semi-Finals

Tuesday, March 5, 2019 at 6:00 p.m.

Finals

Thursday, March 7, 2019 at 6:00 p.m.

Locations to be determined 
Either Lackawanna County Court of Common Pleas 
or
William J. Nealon Federal Courthouse in Scranton

Please contact Ryan Campbell, Esq. at

hrlaw04@gmail.com

or

Katie Munley, Esq. at knealon@munley.com 

To Volunteer or for more information.

Mock Trial Jurors Needed For Final Rounds of Competition

Below are the dates for the Mock Trial Competition in LACKAWANNA COUNTY and information on how to register to serve as a Juror.  Many attorneys are needed to fill many Jury Boxes on these last few dates for the Competition in Lackawanna County.  Can you help?

Trial Dates:

Semi-Finals

Tuesday, March 5, 2019 at 6:00 p.m.

Finals

Thursday, March 7, 2019 at 6:00 p.m.

Locations to be determined 
Either Lackawanna County Court of Common Pleas 
or
William J. Nealon Federal Courthouse in Scranton

Please contact Ryan Campbell, Esq. at

hrlaw04@gmail.com

or

Katie Munley, Esq. at knealon@munley.com 

To Volunteer or for more information.

Third Circuit Court of Appeals Affirms Judgment in Favor of Ski Resort (Not Precedential)

In the case of Vu v. Ski Liberty Operating Corp., No. 18-1769 (3d Cir. Feb. 12, 2019 Chagares, Bibas, Sanchez, JJ.) (Op. by Chagares, J.)(Listed as "Not Precedential"), the court entered judgment in favor of a Defendant in a skiing accident case. 

The court ruled that, under the Skier’s Responsibility Act, ski resorts have no duty to protect skiers from the inherent risk of the sport.   The court noted that losing control and skiing off the side of a trail is an inherent risk of skiing.  Under the law, inherent risk need not be natural conditions on the ski slope.  

The court otherwise found that the Plaintiff failed to identify any particular industry standard that the Defendants violated.

As such, the court affirmed the entry of judgment in favor of the defense.  

Anyone wishing to review a copy of this case 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.  Attorney Beck is also the writer of the excellent Drug and Device Law blog which can be viewed HERE,

Reckless Allegations and Punitive Damages Claims Allowed to Proceed Against Tractor Trailer Defendant

In the case of Kuehner v. Abdulqader, No. 2018-CV-4215 (C.P. Lacka. Co. Feb. 15, 2019 Nealon, J.), the court addressed Preliminary Objections filed by a trucking Defendant seeking the dismissal of allegations of “gross, wanton, and reckless conduct” along with the accompanying claims for punitive damages as set forth in the Plaintiff’s Complaint.  

After reviewing the standard of review for a demurrer, the court ruled that the Defendant’s Preliminary Objections were overruled.

The court noted that the Plaintiff asserted that she was operating a vehicle and making a left hand turn when the Defendant tractor trailer driver drove his vehicle into the Plaintiff’s lane of travel and caused the injury and allegedly serious personal injuries to the Plaintiff.   

Among the more specific allegations asserted by the Plaintiff in support of claims of gross, wanton, and reckless conduct included allegations that the tractor trailer driver was operating his vehicle when he was so fatigued so as to make it unsafe for him to operate his vehicle in violation of federal code provisions, operating his vehicle in excess of the applicable hours of service allowed under the federal code, and operating his vehicle in conscious disregard of his fatigued condition.

The Plaintiff also alleged that the tractor trailer driver was reckless by failing to document his travel in daily logs as required by law, including the Federal Motor Carrier Safety Regulations, and failure to observe proper rest and driving intervals as required by the same law.   

Reviewing the Complaint as a whole and in the light most favorable to the Plaintiff, the court overruled the Preliminary Objection asserted in the nature of a demurrer.   

The court noted that the defense retained the right to revisit the issue after the conclusion of discovery by way of a Motion for Summary Judgment.  

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

I send thanks to Attorney Kevin Conaboy for bringing this decision to my attention.  

Reckless Conduct Allegations and Punitive Damages Claims Allowed to Proceed in DUI Civil Litigation

In the case of Santiago v. Yates, No. 2018-CV-4504 (C.P. Lacka. Co. Feb. 14, 2019 Nealon, J.), the court reviewed various Preliminary Objections filed by a Defendant in a motor vehicle accident case.  

In particular, the Defendant filed Preliminary Objections against the Plaintiff’s allegations of the Defendant’s alleged reckless operation of his vehicle while under the influence of alcohol and a controlled substance along with the Plaintiff’s request for punitive damages.   

The Plaintiff additionally alleged that she was not bound by her Limited Tort selection and instead was entitled to Full Tort coverage under an exception to the rule pertaining to a conviction of the defendant driver for driving under the influence of alcohol and/or a controlled substance.  

The Defendant demurred to the claim for punitive damages on the grounds of legal insufficiency.   The Defendant also requested a dismissal of the Plaintiff’s allegations of recklessness due to an alleged lack of factual support for those allegations. 

The Defendant also moved to strike any references to the Defendant’s driving under the influence of alcohol and a controlled substance on the basis that those allegations allegedly contained “scandalous and impertinent matter.”

Judge Terrence R. Nealon
Lackawanna County

In denying these Preliminary Objections, Judge Nealon noted that the Pennsylvania appellate and trial courts have “uniformly recognized the viability of a punitive damages claim against a motorist who causes an accident and personal injury while driving under the influence of alcohol or a controlled substance.   Reviewing and accepting the Plaintiff’s allegations as true in this matter as required by the standard of review, the court denied the Defendant’s various Preliminary Objections.  

The court also noted that the allegations of driving under the influence assumed a greater significance in this case given that the Defendant’s conviction in the criminal courts transformed the Plaintiff’s Limited Tort status to Full Tort status under the applicable law.  

As such, the court additionally rejected the claim that the allegations at issue amounted to scandalous and impertinent allegations.   To the contrary, the court found that the allegations pertaining to the Defendant’s driving under the influence were sufficient to support the Plaintiff’s claims for punitive damages based upon the Defendant’s alleged reckless conduct.  

As stated, the Defendant’s Preliminary Objections were overruled in their entirety. 

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