Judge Jones of Federal Middle District Addresses Motions to Dismiss in Lawsuit Arising Out of Alleged Sexual Assault on College Campus

In the case of Kennedy v. Gettysburg College, No. 1:19-CV-703 (M.D. Pa. Aug. 6, 2019 Jones, J.), the court granted in part and denied in part Motions to Dismiss filed by various Defendants in a case of alleged sexual assault at a college. 

According to the Opinion, the Plaintiff filed suit against the college alleging causes of action including a violation of Title IX, violation of the Plaintiff’s right to equal protection pursuant to 42 U.S.C. §1983 against the college, sexual assault, sexual abuse, and battery, along with negligent hiring and supervision and other counts. The Complaint also seeks punitive damages against the college and the college’s alumni association. 

The various Defendants, including the college, the alumni association, and the individual Defendant, filed a series of Motions to Dismiss. 

Among other rulings, the court rejected the college’s argument that it could not be responsible for the acts of a student at a party off campus and/or that Title IX does not apply to a non-student (the Plaintiff in this case was visiting her brother at college). 

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

I send thanks to Attorney Charles L. Leone of the law office of Lewis R. Busico in Newtown, Pennsylvania for bringing this case to my attention.

Judge Brann of Federal Middle District Issues Opinion Addressing Motions to Dismiss and/or Stay in College Hazing Case

In the case of Piazza v. Young, No. 4:19-cv-00128 (M.D. Pa. Aug. 27, 2019 Brann, J.), the court addressed various Motions to Dismiss and Motions to Stay in a civil lawsuit arising out of the fatal injuries sustained by a student at Penn State allegedly as a result of hazing activities in a fraternity.  The court granted the motions in part and denied the motions in part.  

Of note, with respect to those fraternity brothers Defendants who were under the age of 21, the court allowed the claims of the Plaintiff to proceed against those underaged Defendants under the Plaintiff’s theory of recovery to hold the Defendants liable for breaching an alleged protective duty that the Defendants, as fraternity members, allegedly owed to the Plaintiff’s son, a fraternity pledge. 

Judge Matthew W. Brann
M.D. Pa.

In this regard, Judge Brann refused to apply the Pennsylvania Supreme Court’s decision in the case of Kapres v. Heller, 640 A.2d 888 (Pa. 1994) in as an expansive manner as requested by those moving Defendants who were under the age of 21.   Under the Kapres case, the Pennsylvania Supreme Court generally ruled that individuals under the age of 21 cannot be held liable under the social host doctrine to a guest or third party injured on the premises relative to the service of  alcohol. 

The court in this Piazza case refused to read the Kapres case as immunizing the fraternity Defendants in this case from alleged liability for their otherwise allegedly wrongful conduct that involved the provision of alcohol.   See Op. at 16-18.  The court also noted that an expansive reading of the Kapres decision in the context of this case would not serve to further the social utility of the Pennsylvania statutes against hazing activities.

However, the court did otherwise note that the Plaintiff’s separate claim for negligence per se relative to the service of alcohol asserted against the fraternity Defendants who were under the age of 21 should be dismissed under the rationale of the Kapres case.  

This Opinion is also notable for the court’s review of the law pertaining to allegations of breach and causation, hazing allegations, allegations of civil conspiracy and claims of battery and intentional infliction of emotional distress.  

The court ruled that those defendants who acted to aid plaintiff after his accident can be liable under Restatement §§323, 324A for negligently failing to seek professional medical help.  However, the court found that other defendants who did not act to aid the Plaintiff could not be found to be liable for failing to render any aid as there is no cognizable duty under these facts to rescue in the first place.

Judge Brann also found that a negligence per se claim based upon an alleged violation of Pennsylvania’s anti-hazing statute is a viable claim. 

The Plaintiff’s intentional infliction of emotional distress claim was dismissed under the rationale that an alleged attempted cover up of the incident did not amount to an intent to inflict emotional distress on anyone.

The court additionally denied the Motion to Dismiss the claims of punitive damages asserted in this matter.   The court noted that it has routinely declined to dismiss punitive damages demands at the Motion to Dismiss stage of the case and prior to discovery.  

Judge Brann also addressed separate Motions to Stay filed by several Defendants who have been criminally charged arising out of the same incident.  

On this issue, the court reviewed the six (6) factors required under the case of Barker v. Kane, 49 F.Supp. 3^rd 521, 525-26 (M.D. Pa. 2016) and granted this in part and denied it in part.   Essentially, the court denied the request to stay the matter but crafted the remedy that entitles certain Defendants to exercise their right against self-incrimination.   The court noted that certain Defendants would not be required to  answer any pleadings or discovery or participate in any depositions that would implicate their Fifth Amendment Right against self-incrimination by engaging in such pleadings and discovery.  

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

Judge Zulick of Monroe County Addresses Services of Process on Out-of-State Defendants

In the case of Pacheco v. Pacheco, No. 5445-CV-2018 (C.P. Monroe Co. July 1, 2019 Zulick, J.), the court dismissed a motor vehicle accident after finding that the Plaintiffs failed to establish that they attempted service upon the Defendants in good faith.  

The court noted that the Defendants resided in another state and the Plaintiffs had attempted to serve them by certified mail.  

The case arose out of a motor vehicle accident that occurred in July of 2016. 

The certified mail return receipt for one (1) Defendant was signed by a person with a different first name and with no last name listed.  The receipts contained no indication that the person who signed the receipt was a person authorized to accept service on behalf of that Defendant. The court noted similar problems with the attempt at service by certified mail upon the other Defendant, again emphasizing there was no indication that the person who signed the receipt was authorized to accept service on behalf of that separate Defendant.

The Defendants eventually filed Preliminary Objections in March of 2019, asserting that serve had not been completed properly.   The court noted that the Plaintiff did eventually make personal service on the Defendants on April 8, 2019. 

The court granted the Preliminary Objections, emphasizing that the certified receipts were signed by an unknown person and that the receipts were unclear as to whether this person, in any event, was an authorized agent capable of accepting service on behalf of either Defendant.  As such, the Plaintiffs were found to have failed in their burden of showing that either of the Defendants or any authorized agents of the Defendants had signed the return receipt.  

Suit was filed a few days before the expiration of the statute of limitations.

Judge Arthur L. Zulick
Monroe Co.

Judge Zulick noted that a Pennsylvania case law on the issue of proper service indicated that compliance with the service rules were generally enforced in a strict fashion, although a few cases did allow for a more flexible approach, particularly where there was evidence that the Defendant had actual notice of the pending lawsuit.   

Judge Zulick distinguished the case before him from those flexible view cases by noting that there was nothing in the records to indicate that the Defendants in this matter had actual notice of  the lawsuit.  

As such, the court concluded that the Plaintiffs had failed to satisfy the good faith element of attempted service.  As noted, the Defendant’s Preliminary Objections were granted and the case dismissed.  

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

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (August 6, 2019). 

In another decision issued on the same date the companion case of Pacheco v. Moore, et al., No. 5475 CV 2018 (C.P. Monroe Co. July 1, 2019 Zulick, J.), Judge Zulick came to a similar result.

The case of Pacheco v. Moore involved a motor vehicle accident that occurred on July 24, 2016. 

The Plaintiff filed Complaint July 20, 2018 and attempted to serve two out-of-state defendants on August 8, 2018 via certified mail. 

The Plaintiff never filed any affidavit of service with respect to either Defendant. 

The out-of-state Defendants filed Preliminary Objections on March 20, 2019 based on improper service. 

In response to the Preliminary Objections, the Plaintiff filed two identical USPS proofs of delivery dated August 8, 2018.  The signatures on both proofs of delivery were identical and illegible. 

Moreover, the tracking receipts for these proofs of delivery merely stated that the Complaints were “left with an individual.”

The Court sustained the Preliminary Objections and held that the return receipts submitted by Plaintiff did not comply with Pa.R.C.P. 405(b) which requires a return of service to include the identity of the person served and any other necessary facts for the Court to determine whether proper service has been made. 

Judge Zulick also applied an analysis under Lamp v. Heyman to conclude that Plaintiff’s course of conduct did not demonstrate a good faith attempt at service of process within the prescribed statute of limitations and and that Plaintiff’s neglect had stalled the progress of the action against the out-of-state Defendants.

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

I send thanks to Attorney Jason A. Statler of the Lemoyne, PA law firm of Johnson, Duffie, Stewart & Weidner for bringing this Pacheco v. Moore decision to my attention.

Motion for Recusal Denied As Untimely

In the case of Philadelphia Cmty. Dev. Cole. v. Isabella, May Term, 2016, No. 04133 (C.P. Phila. Co. March 27, 2019 Powell, J.), the court addressed the current status of the Pennsylvania law surrounding a motion for recusal of a trial court judge.  

In denying the motion, the court noted that the parties seeking their recusal at a pattern of filing recusal motions at the trial level and on appeal, all of which had been previously denied. The court also observed that all of the party’s recusal motions had been filed after the court issued decisions adverse to that party.  

The court generally noted that judges are presumed under Pennsylvania law to be fair and competent.  

It was also noted that a party seeking recusal was required to raise the objection at the earliest possible moment or the issue would be considered time-barred.  

The court otherwise noted that, once a trial in a matter was completed, a party was deemed to have waived the right to have a judge disqualified.  

In cases where after-discovered evidence was involved, the moving party was required to show that the evidence could not have been brought to the attention of the court in the exercise of due diligence and that the existence of the evidence would have compelled a different result.  

In this matter, the party did not submit its Motion for Recusal until more than four (4) months after the trial court had finally decided the matter.   The court concluded that the Motion for Recusal was therefore untimely such that the issues raised were waived.   

The court additionally found that the party failed to meet the requirements regarding after-discovered evidence given that that evidence could have been easily discovered through a simple internet search and presented to the court far sooner.  

Please click this LINK if you wish to read this Opinion.

Punitive Damages Claims Allowed to Proceed in Distracted Driving Case

In the case of Baez v. Rosenberry, No. 19-CV-0131 (C.P. Union  Co. July 31, 2019 Hudock, P.J.), the court overruled Preliminary Objections of a Defendant to allegations of distracting driving, reckless conduct, as well as with respect to a claim for punitive damages.  

According to the Opinion, the mirror of the Defendant’s vehicle struck the pedestrian Plaintiff while the Defendant’s vehicle was passing the Plaintiff as the Plaintiff was walking on the right shoulder of a highway.  

The court allowed the allegations pertaining to reckless conduct and punitive damages to stand after noting that the Complaint portrayed the Defendant as a distracted driver who failed to remain on the road, was fatigued, was traveling too fast for conditions, and who struck a pedestrian.   

Based upon these allegations, the Court noted that it "may infer that Defendant’s vehicle continued to travel forward with the Defendant unaware of the roadway in front of him.”   See Op. at p. 3.  Judge Hudock cited to case law imposing a duty of motorists to look in the direction in which the car is proceeding and to keep the car under proper control so as to avoid dangers to pedestrians and others who may be in front of a motorist on the roadway.  The Court also noted that failure to meet these duties is a flagrant violation of a duty.

Overall, the court found that the allegations at issue were sufficient to support the claims of reckless conduct and to possibly impose punitive damages.   The court emphasized that it was not deciding the merit of the claims presented but only that the Plaintiff had pled sufficient facts which, if proven, would establish a right to relief.  As such, the Preliminary Objections of the Defendant were overruled. 

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

I send thanks to Attorney Scott B. Cooper of the Harrisburg, Pennsylvania law office of Schmidt Kramer for bringing this case to my attention. 

Judge Caputo of Middle District Allows Uninsured Motorist Benefits Bad Faith Claim to Proceed

In the case of Fuentes v. USAA General Ind. Co., No. 19-CV-1111 (M.D. Pa. July 22, 2019 Caputo, J.), the court ruled that a Plaintiff had pled a plausible bad faith claim arising out of an uninsured motorist claim following a fatal auto accident.  

According to the Opinion, the facts of the case allegedly gave rise to a coverage issue on whether the deceased party’s father, who was the owner of the car at issue, had an applicable policy covering the accident given that there was a question of whether the decedent resided with his father at the time of the accident.

The other driver involved in the accident was uninsured. 

Judge A. Richard Caputo
M.D. Pa.

According to the Opinion, the Plaintiff alleged that the carrier had asked for additional information after a demand for uninsured motorist benefits was made under the father’s policy.  The father sent additional information but the carrier thereafter allegedly advised the father to file a Complaint in order that additional discovery could be completed.   The father responded with a lawsuit asserting uninsured motorist claims as well as breach of contract and bad faith claims.  

Before the court in this decision was the carrier’s Motion to Dismiss the bad faith claims on the grounds that the allegations in that regard only amounted to boilerplate conclusory allegations.  

Judge Caputo disagreed and found that the Plaintiff alleged sufficient factual matter to overcome the F.R.C.P. 12(b)(6) Motion to Dismiss.

In so ruling, Judge Caputo referenced the fact that the carrier allegedly told the father to sue the carrier in order that the carrier may gather additional information.   Judge Caputo stated in his Opinion that, “[a]lthough such conduct may ultimately not amount to bad faith, it is plausible, based on the factual assertions in the Complaint that [the carrier] acted in reckless disregard of its obligations under the policy.”  

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

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

Judge Conner of Middle District Grants Bifurcation and Stay of Bad Faith Claims in Property Insurance Case

In the case of McFarland v. Harford Mut. Ins. Co., No. 1:18-cv-1664 (M.D. Pa. July 25, 2019 Conner, J.), the court addressed a Motion to Sever and Stay a bad faith claim in an insurance dispute over property damage caused by the collapse of a retaining wall. 

Judge Conner initially noted in his Opinion that Motions to Sever re governed by Federal Rule of Civil Procedure 21 and that Motions to Bifurcate are governed by Federal Rule of Civil Procedure 42(b).  

The court noted that, unlike bifurcation of claims under Rule 42(b), severance under Rule 21 creates independent action resulting in separate judgments.   The court otherwise noted that severance is appropriate when the claims are “discrete and separate,” that is, each claim is capable of resolution without effect on the other.  

Judge Christopher C. Conner
M.D. Pa.

Judge Conner noted that, while Motions to Sever and Motions to Bifurcate in the federal court are found under separate rules, both are typically decided by reviewing the same factors including the similarity of issues, the type of evidentiary proof required by the claims presented, issues of judicial economy, and whether either party will be unduly prejudice by a separation of the claims presented.  

In his ­Opinion, Judge Conner reviewed a number of state and federal court decisions addressing a Motion to Sever and Stay a bad faith claim from an underlying coverage action.  

In the end, the court in McFarland ruled that the issues in this case underlying the coverage dispute was deemed to be separate and distinct from those issues implicated by the bad faith claim.   The court noted that the breach of contracting for property insurance coverage involved straightforward issues such as causation, damages, and contract interpretation.  

In contrast, the court noted that bad faith claims deal with more “elusive concepts” like motive, internal claims handling practices, and whether the carrier knowingly or recklessly disregard a lack of a reasonable basis for the denial of coverage.  

The court also reaffirmed that a bad faith claim requires a higher evidentiary showing of clear and convincing evidence.  

After also considering other factors, including the interest of judicial economy, the court ruled  that, in addition to agreeing to bifurcate the bad faith claim, the court also ruled to stay discovery on that claim.   The court noted that discovery in the bad faith claim would be stayed until the breach of contract dispute was resolved.  

Judge Conner stated that he was “cognizant that [his] determination runs counter to certain district court decisions in this circuit denying severance or bifurcation of insurance breach of contract and bad faith claims.”  

Nevertheless, the court in McFarland noted that the decision in this regard to order separate discovery and/or trials lies within each court’s broad discretion and must be determined on a case-by-case basis.  

Anyone wishing to review a copy of the Opinion in this decision may click this LINK.  The companion Order can be viewed at this LINK.

I send thanks to Attorney Peter J. Speaker of the Harrisburg, Pennsylvania office of Thomas Thomas & Hafer, LLP for bringing this case to my attention.