BEWARE: Petition To Open Judgment Non Pros Must Be Filed Before Any Appeal To Preserve Issues

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In the case of Reilly v. Bristol Twp., No. 2019-08757 (C.P. Bucks Co. June 30, 2023 Corr, J.), the trial court judge issued a Rule 1925 Opinion in which he requested the Superior Court to dismiss a Plaintiff’s appeal of a civil litigation which a non pros default judgment was entered against the Plaintiff and the Plaintiff failed to preserve any issues for appeal when he filed an appeal from the entry of the judgment of non pros rather than filing a Petition to Open and/or Strike the Default Judgment under Pa. R.C.P. 3051.

According to the Opinion, a Plaintiff police officer sued the Defendant township regarding various employment issues.

During the course of the litigation, the trial court granted a Defendant’s request for the entry of judgment of non pros due to the Plaintiff’s failure to proceed with the case with reasonable promptitude.

The Plaintiff then filed an appeal.

The trial court held that the Plaintiff’s appeal had to be dismissed given that the Plaintiff failed to file a Petition for Relief from the judgment of non pros under Pa. R.C.P. 3051. 

According to the trial court, that Rule, and case law construing that Rule, directly addresses the means of obtaining relief from an entry of a judgment of non pros. The Court noted that, according to the Explanatory Note of the Rule, a Plaintiff must file a Petition for relief from the judgment of non pros to the trial court rather than filing an appeal to the appellate court. 

The trial court ruled that, where the Plaintiff erroneously filed an appeal, the Plaintiff failed to preserve any of the issues regarding the entry of the judgment. As such, the trial court requested the Superior Court to dismiss the Plaintiff’s appeal.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 1, 2023).

Insurance Bad Faith Claim Allowed to Proceed

In the case of Moravia Motorcycle, Inc. v. Allstate Insurance Company, No. 2:21-CV-01274-PLD (W.D. Pa. July 24, 2023 Dodge, M.J.), a federal magistrate judge dismissed a Defendant insurance company’s Motion to Dismiss Plaintiffs’ Breach of Contract and Bad Faith Action over a denial of coverage for water damage to a motorhome.

The court found that the carrier failed to show that the loss was excluded under the policy. 

The carrier also did not demonstrate that there were undisputed facts that would preclude the Plaintiff from proceeding on the bad faith claim asserted. Rather, the Plaintiff argued that the carrier’s handling of the claim was less than complete and was, to some extent, unreasonably delayed.

The court additionally noted that the Plaintiff faulted the carrier for allegedly failing to advise the Plaintiffs, in writing, of the denial of the claim. It was also noted that the carrier allegedly did not provide the Plaintiff with the reasons for the denial.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 10, 2023).

Photo by Rob Hayman on www.unsplash.com.

SAVE THE DATE: Lackawanna Pro Bono Fundraising Gala - November 9, 2023

 

Plaintiff Granted Leave to Amend To Try To Plead Punitive Damages in a Dog Bite Case

In the case of Jennings v. Lycoming County SPCA, No. CV23-00512 (C.P. Lyc. Co. July 20, 2023 Carlucci, J.), the court struck a Plaintiff’s claim for punitive damages in a dog bite but allowed the Plaintiff the right to amend.

According to the Opinion, the Plaintiff was in the lobby of a local SPCA when she was allegedly attacked by a Terrier named “Peanut.” 

The Plaintiff alleged that the dog had been previously adopted by a family, but returned to the SPCA, after biting a child in that family. The Plaintiff also alleged that the dog previously bit a SPCA employee and that, therefore, the SPCA had actual knowledge that the dog was dangerous.

In his Opinion, Judge Carlucci noted that he was not satisfied that the facts alleged in the Plaintiff's Amended Complaint were sufficient to show that the Defendant's conduct demonstrated a reckless indifference to the interests of others.  However, as noted, the Court granted the Plaintiff leave to try again in another Amended Complaint.    

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 15, 2023).

Photo by Victor Grabarczyk on www.unsplash.com.

Wife Found to Be Bound By New Husband's Previous Execution of Stacking Waivers on UIM Policy

In the case of Golik v. Erie Insurance Exchange, No. 1110 WDA 2022 (Pa. Super. Aug. 7, 2023 Murray, J., McLaughlin, J. and Pellegrini, J.) (Op. by Murray, J.), the Pennsylvania Superior Court vacated a judgment entered by the trial court in favor of the Plaintiff on an issue involving the stacking of UIM benefits relative to a motor vehicle accident case.

According to the Opinion, the Plaintiff-wife joined her husband’s existing automobile insurance policy a year after the couple’s marriage in 2004. The husband had signed stacking waivers once previously in 1998 and again, subsequently, in 2004.

The Plaintiff-wife testified that she did not recall ever seeing or discussing any stacking waivers.

The Plaintiff-wife claimed that she was entitled to stacked benefits because she never signed or even heard about any stacking waivers relative to the insurance policy in question.

The trial court sided with the Plaintiff’s argument, holding that the signature of the policy’s first named insured alone was not enough to allow for a full execution of a waiver of stacked coverage. The trial court ruled that the carrier was required to provide each named insured with a chance to waive stacked coverage. In so ruling, the trial court did concede that there was no binding precedent addressing the issue presented.

On appeal, the Pennsylvania Superior Court determined that, although there was no case law on point, past rulings had suggested that a named insured, even when subsequently added to a policy, is presumed to have known about available options and is bound by the first named insured’s election of a lesser coverage, unless the insured takes affirmative steps to try to change the coverage.

Based upon the evidence in this case, the Superior Court ruled that the Plaintiff-wife had constructive knowledge of the waiver and was bound by her husband’s signature.

The Pennsylvania Superior Court further held that the plain language of §1738 of the Motor Vehicle Financial Responsibility Law only required notice to be provided to the named insured who purchased the policy.

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

Source: Article: “Pa. Superior Court Vacates $100K Award of Stacked UM/UIM Coverage for Woman Whose Husband Signed Waiver” By: Elisa Furman. Pennsylvania Law Weekly (Aug. 8, 2023).

Third Circuit: No Attorney Fees Allowed on Remand of a Case To State Court Except in Limited Circumstances

In the case of Medical Associates of Erie v. Zaycowsky, No. 22-1402 (3d. Cir. Aug. 9, 2023 Hardiman, J., Porter, J., and Fisher, J.), the United States Court of Appeals for the Third Circuit concluded that federal district courts lacked the authority to award attorney’s fees under 28 U.S.C. §1447(c) when a case has been properly removed from state court but subsequently remanded based upon a forum selection clause. 

The Third Circuit noted that §1447(c) instead only allows for an award of attorney fees in cases involving a remand where the removal to federal court failed to meet the statutory requirements, or where the court lacked subject matter jurisdiction over the removed case. 

In other words, the authority of a district court to offer a remedy for alleged abuses of the removal procedure is limited.

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

Source: Article: “3rd Cir. Clarifies When District Courts Can Award Attorney Fees on Remand” By Riley Brennan of the Pennsylvania Law Weekly (Aug. 11, 2023).

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Motion for Summary Judgment on Punitive Damages Claims Denied in a Trucking Accident Case

In the case of Capie v. Lobao, No. 3:21-CV-00829-KM (M.D. Pa. Aug. 4, 2023 Mehalchick, M.J.), Federal Magistrate Judge Karoline Mehalchick of the Federal Middle District Court of Pennsylvania denied the Defendant trucking company’s Motion for Summary Judgment on the issue of punitive damages.

According to the Opinion, this case involves a truck driver who allegedly failed to get out and look prior to reversing his tractor trailer on a public roadway and, as a result, allegedly struck the Plaintiff. The Plaintiff had amended the Complaint to add a claim for punitive damages after completing the deposition of the driver.

At the deposition, the driver admitted that his decision to reverse his vehicle while knowing that there could possibly have been a vehicle behind him could be viewed as reckless conduct.

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


I send thanks to Attorney Jamie Anzalone and Attorney Kelly Ciravalo for bringing this decision to my attention.