As Currently Required, Court Follows the Fad of Allowing Claims of Recklessness Regardless of the Facts Pled

In the case of Tierney v. Miggy’s Corporation Six, No. 3632-CV-2025 (C.P. Monroe Co. Sept. 10, 2025 Zulick, J.), the court overruled a Defendant’s Motion to Strike allegations of recklessness and punitive damages from the Plaintiff’s slip and fall Complaint.

According to the Opinion, the Plaintiff alleged that she slipped and fell on a puddle caused by a leaky air conditioner at the Defendants’ grocery store and sustained injuries as a result. The Plaintiff also claimed, in part, that the puddle in question was caused by the carelessness, recklessness, and negligence of the Defendants. The Plaintiff additionally asserted a claim for punitive damages.

The court followed the current fad of courts allowing general allegations of recklessness to be pled as an allegation of a state mind under Pa. R.C.P. 1019(b). The court noted that the issue of the validity of the claims could be revisited after discovery at the summary judgment stage.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Nov. 20, 2025).

Trial Court Judge Orders Opening of a Snap Default Judgment

In the case of Susquehanna Legal Aid For Adults & Youth v. Winkleman, No. CV-2024-01041 (C.P. Lyc. Co. Sept. 23, 2025 Carlucci, J.), Judge William P. Carlucci of the Lycoming County Court of Common Pleas granted a Plaintiff’s Petition to Open a Defendant’s default judgment filed relative to the Defendant’s counterclaim where the court found that the Defendants had entered a “snap” default judgment.

In ruling upon the Plaintiff’s Petition to Open and/or Strike the default judgment, the court reviewed the standard of review which required the court to determine (1) whether the default was excusable; (2) whether the parties seeking to open the judgment has shown a meritorious defense or claim, and (3) whether the Petition to Open has been promptly filed.

The court also noted that it “sincerely believe[d]” that the Rules of Civil Procedure are not intended to become a “bag of tricks.” See Op. at 5. 

In so noting, the court also referred to Pa. R.C.P. 126 of the Pennsylvania Rules of Civil Procedure that requires the rules to be liberally applied to secure the just, speedy and inexpensive determination of every action. Judge Carlucci noted that, under that rule, a court is, at every stage of the action, permitted to disregard any error or defect of procedure that does not affect the substantive rights of the parties.

Judge William P. Carlucci
Lycoming County 

Judge Carlucci additionally noted that it is the well-settled law of the Commonwealth of Pennsylvania that “snap judgments” are heavily disfavored.

According to the record before the court in this case, forty-one (41) minutes after the Defendants electronically filed their default judgment on their counterclaim against the Plaintiff, the Plaintiff had electronically filed their Preliminary Objections to the Defendants’ counterclaim.

Judge Carlucci noted that, had counsel for the Defendants made any effort to contact counsel for the Plaintiff before taking the default judgment, counsel for the Defendant would have learned that a responsive pleading was only minutes away from being filed.

Based upon the record before the court, the court found that the Petition to Open or Strike was promptly filed and was worthy of being granted. As such, the court opened the default judgment and directed the Plaintiff to file its responsive pleading.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Nov. 6, 2025).

Court Strikes Intentional Infliction of Emotional Distress Claim But Allows Punitive Damages Claim to Proceed In Premises Liability Case

In the case of Abda v. Keystone Klub Keyser Oak, LLC, No. 2024-CV-7649 (C.P. Lacka. Co. Nov. 20, 2025 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas overruled a Preliminary Objection in the nature of a demurrer filed against the Plaintiff’s claim for punitive damages but sustained Preliminary Objections in the nature of a demurrer filed against the Plaintiff’s claims of intentional infliction of emotional distress in a personal injury case.

According to the Opinion, a customer at a skill-based games venue sued the Defendant entertainment lounge for negligence and sued its owner for assault and battery and intentional infliction of emotional distress after the owner allegedly attacked and injured the customer on the premises.

In support of his claim of intentional infliction of emotional distress, the customer alleged that the owner later used his vehicle to cause damage to the grounds of the customer's residence and shouted profanities at the customer’s minor son in the process.

In response to the Complaint, the owner Defendant filed demurrers, including with respect to the Plaintiff’s demand for punitive damages. The Defendant asserted that the Plaintiff failed to allege specific facts to support a finding of willful or wanton misconduct.

The Defendant also filed a demurrer against the claims of intentional infliction of emotional distress.

In his Opinion, Judge Nealon noted that claims of willful or wanton misconduct may be averred generally under Pa. R.C.P. 1019(b).

The court additionally held that a demand for punitive damages is not governed by the “material facts” pleading requirement found under Pa. R.C.P. 1019(a) because a demand for punitive damages does not constitute a “cause of action.” Instead, a demand for punitive damages is viewed merely as an element of damages that is incidental to an underlying cause of action.

Here, where the customer stated a prima facie claim for assault and battery against the owner and had generally alleged willful and wanton misconduct by the owner, the court found support for overruling the demurrer to the claim for punitive damages.

With respect to the claim for intentional infliction of emotional distress, the court found that the Plaintiff’s Complaint did not describe conduct that was so outrageous in nature and extreme in degree so as to exceed all bounds of decency and be regarded as atrocious and utterly intolerable in a civilized society. Accordingly, in the absence of such facts, the court sustained the Defendant’s demurrer to the claim for intentional infliction of emotional distress.

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

Summary Judgment Denied in Supermarket Parking Lot Pothole Case

In the case of Schwab v. Giant Food Stores, No. 2024-CV-3936 (C.P. Lacka. Co. Dec. 2, 2025 Nealon, J.), the court denied summary judgment in a supermarket parking lot slip and fall involving a pothole.

In its responsive pleadings, the supermarket denied liability and also asserted that it did not own or control the parking lot at issue.

In response to the Motion for Summary Judgment, the Plaintiff asserted that discovery was ongoing with respect to the ownership and maintenance of the parking lot at issue.

The court noted that the supermarket Defendant merely alleged in its pleadings and its Motion for Summary Judgment that it did not own or maintain the parking lot. However, the supermarket Defendant did not submit any evidence in support of that allegation.

As such, the court denied the Motion for Summary Judgment based on issues of fact and allowed the case to proceed.

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

Judge Nealon of Lackawanna County Reviews the Standard of Review Applicable to a Motion for Recusal

In the case of Correctional Care, Inc. v. Lackawanna County, PA, No. 2021-CV-3079 (C.P. Lacka. Co. Oct. 10, 2025 Nealon, J.), the trial court set out the standard of review relative to a Petition to the court requesting a recusal of a trial judge or the entire trial bench.

In this case, the provider of healthcare services to correctional facilities filed a lawsuit against the County seeking compensation for monies allegedly owed to the Plaintiff under the parties’ contract.

During summary judgment proceedings, the healthcare provider produced a testimonial affidavit from one of the County judges who served as a prison board member during the relevant time period under the contract. In that affidavit, the County judge made references to facts pertinent to the issues presented under the contract.

Following its production of that affidavit, the healthcare provider filed a Petition requesting a “full bench recusal” based upon the other judge’s status as a potential trial witness. The healthcare provider also sought a change of venue.

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas, who addressed the recusal request, set out the standard of review.  Judge Nealon was not the judge who had provided the above-referenced affidavit.

Judge Nealon noted that a judge faced with a recusal request must first make a conscientious determination of the judge’s ability to assess the case in an impartial manner.

If the judge is satisfied with that subjective self-examination of objectivity, the judge must then consider whether the judge’s continued involvement in the case could reasonably create an appearance of impropriety.

The court referred to other cases in which judges of this particular court had recused themselves from matters in which a colleague was likely to testify.

The court noted that the presiding judge at the trial of this matter would have to determine whether the judge’s proffered testimony is admissible, and if that testimony is admissible, the acceptable scope of the cross-examination of the judge.

In this case, Judge Nealon noted that, although the court believed that it would decide those evidentiary issues impartially and objectively based upon the applicable law, the court’s consideration of the other factors led him to conclude that his proceeding in the matter as the judge when a colleague of his was a witness in the case could create an appearance of impropriety in reasonable minds.

Accordingly, Judge Nealon granted the request to recuse the bench from this case and directed the court administrator to reassign the pending summary judgment motions filed by parties, along with the Motion for a Venue Transfer, to another judge.

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

Source of image:  Photo by Tingey Law Office on www.unsplash.com.

HOLIDAY GIFT FROM TORT TALK: Complimentary Copy of the 2025 Tort Talk Civil Litigation Update

Here is the LINK to a complimentary copy of the 199 paged 2025 Tort Talk Civil Litigation Update booklet that was created Daniel E. Cummins, Esq.   

Tort Talk has been putting out this annual Civil Litigation Update Booklet over the past 14 years since at least 2011, whether it be at the Tort Talk Expos or here on the Blog.

The 2025 Tort Talk Civil Litigation Update is a compilation of the most notable Tort Talk posts over the past year or so and is offered here FREE OF CHARGE as a Holiday gift to all Tort Talkers.

If you wish to review the actual Opinion of any of the cases summarized in the Tort Talk 2025 Civil Litigation Update, please go to www.TortTalk.com and type the case name, or the name of the Plaintiff, into the SEARCH BOX near the upper right hand corner of the blog (not the top box, the second from the top box).  That will take you to the Tort Talk post on that case, in which post there should be a LINK to the actual Opinion.

I note that the PBI sells its annual Civil Litigation Update Booklet for approximately $79.00!  The Tort Talk Civil Litigation Update Booklet is FREE.

As such, to the extent you may have a desire to pay it forward in another way with kindness this Holiday season, I would politely propose that you please consider making a donation to a charity or a non-profit organization of your choice, or to Lackawanna Pro Bono or The Children's Advocacy Center.

Thanks for reading Tort Talk and and thank you for providing me with notable cases to highlight here on Tort Talk.  All is greatly appreciated.

HAPPY HOLIDAYS!

Daniel E. Cummins, Esq.

Cummins Law

Clarks Summit, PA

579-319-5899

dancummins@cumminslaw.net

Source of  top image:  Photo by Thais Araujo on www.pexels.com

Supreme Court Upholds Application of the Immunity Provisions of the Mental Health Procedures Act

In the case of Wunderly v. St. Luke’s Hosp. of Bethlehem, No. 119 MAP 2023 (Pa. Oct. 23, 2025) (Op. by Mundy, J.), the Pennsylvania Supreme Court addressed issues raised in a medical malpractice case under the Mental Health Procedures Act.

In this case, the Plaintiff had filed suit against St. Luke’s Hospital of Bethlehem alleging that the Plaintiff decedent was admitted to St. Luke’s with Stage 1 pressure ulcers on his buttocks and that, during his stay at St. Luke’s he acquired pressured-related skin breakdowns, pressure wounds, and the deterioration of pre-existing pressure wounds, which allegedly caused or contributed to his death.

The trial court had dismissed the Plaintiff’s Complaint after St. Luke’s argued that the decedent was involuntarily admitted to its facility under the Mental Health Procedures Act and that, under the Act, St. Luke’s was immune from liability as the Plaintiff had failed to allege that the medical providers had engaged in willful misconduct or gross negligence that caused the decedent’s death.

The immuity provision of the Mental Health Procedures Act, 50 Pa.C.S.A. Section 7114(a), provides that "[i]n the absence of willful misconduct or gross negligence...a physician...or any other authorized person who participates in a decision that a person be examined or treated under [the MHPA]...shall not be civilly or criminally liable for such decision or for any of its consequences." 

This trial court decision dismissing the case was affirmed by the Superior Court on appeal which found that the decedent was being treated primarily for his mental health after being involuntarily admitted for aggressive behavior related to his dementia. The Superior Court also ruled that the treatment of the Plaintiff’s physical issues was consequence oh the patient's mental health treatment.

Up on the highest rung of the appellate ladder, the Pennsylvania Supreme Court affirmed the Superior Court’s decision and found that treatment for other medical issues consequent with a patient’s mental health treatment or for medical issues that may arise during a patient’s involuntary inpatient admission fell within the scope of treatment entitled to immunity under the Mental Health Procedures Act.

Anyone wishing to review a copy of this decision may click this LINK.  The Dissenting Opinion can be viewed HERE.


Source: The Legal Intelligencer State Appellate Case Alert, (Nov. 11, 2025).

Source of image:  Photo by Ectactics Inc. on www.unsplash.com.

Judge Powell of Lackawanna County Addresses Plethora of Issues Raised in Medical Malpractice Matter

In the case of Doyle v. Keyed, No. 2024-CV-9036 (C.P. Lacka. Co. Oct. 16, 2025 Powell, J.), the court issued a decision denying various Preliminary Objections filed in a medical malpractice action arising out of the death of an infant during a complicated delivery.

Of note, Judge Powell of the Lackawanna County Court of Common Pleas overruled nearly all of the challenges submitted by the Defendants, including a request by Lehigh Valley Hospital-Pocono Defendants’ request to severe their case from the claims against the St. Luke’s Hospital Defendants.

The court additionally rejected one doctor’s claim that he could not be held vicariously liable for actions by the hospital staff that worked under him. The court noted that vicarious liability may attach in a medical malpractice case under the “captain-of-the-ship” doctrine or where the physician exercises actual control over the staff members.

The court noted that, because the Complaint in this matter alleged that the doctor at issue had directed and supervised others during the delivery, those allegations stated a viable theory of vicarious liability.

The court additionally upheld the Plaintiffs’ claims of direct and corporate negligence against various Defendants.

Judge Mark Powell
Lackawanna County

Judge Powell also overruled objections to the claim for punitive damages. The court found that the facts alleged could, if proven, constitute reckless disregard warranting punitive damages.

The court also noted that, given that mental state conditions may be alleged generally under Pa. R.C.P. 1019(b), such claims could survive the pleading stage.

The court also disagreed with the defense argument that childbirth procedures are not surgical acts requiring informed consent. The court noted that the allegations that the doctor failed to discuss surgical alternatives despite risk factors present stated a plausible informed-consent claim.

The court also allowed the Plaintiffs’ claims for negligent infliction of emotional distress to proceed. The court found that the Plaintiff-mother, having suffered a physical impact and having observed her child’s death, and the father, who witnessed the traumatic delivery and aftermath, both fit within the recognized categories of Plaintiffs permitted to pursue negligent infliction of emotional distress claims. In this regard, Judge Powell noted that observation of the results of negligent medical acts can satisfy the contemporaneous observation requirement in a medical malpractice context.

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

Source:  Lackawanna Jurist (Oct. 31, 2025).

Source of image: Photo by Samuel Ramos on www.unsplash.com.

Summary Judgment Denied in Barstool Tip Over Case

In the case of Caskey v. Outback Steakhouse, No. 24-CV-00897 (E.D. Pa. Sept. 22, 2025 Young, J.), the court denied a Defendant’s Motion for Summary Judgment in a customer’s premises liability suit.

The Plaintiff alleged that, while dining at the bar, the barstool he sat upon slid backwards as he leaned forward to eat, causing him to fall and sustain injuries.

The restaurants manager partially captioned the incident by using his phone to record a short video of the restaurant’s surveillance footage. The original surveillance video was not preserved. Also, the barstool involved in the incident was discarded before an expert site inspection could occur.

The Plaintiff provided evidence that there were multiple prior complaints of slippery and wobbly barstools reported to the Defendant’s managers. Moreover, the Plaintiff personally documented a subsequent incident where another barstool slid out from under his wife.

The Plaintiff continued that the Defendant’s failure to inspect the barstools and maintain appropriate facility inspection records reflected a breach of its duty of care owed to its customers as business invitees.

The Defendant filed a Motion for Summary Judgment asserting that there was insufficient evidence of a dangerous condition or of actual or constructive notice of that condition.

The court denied the Motion for Summary Judgment by finding that the Plaintiff had raised genuine issues of material fact regarding whether the barstool was a dangerous condition and on the issue of whether the condition was open and obvious. The court more specifically found that the evidence presented by the Plaintiff, including eyewitness and expert testimony, prior customer complaints, evidence of barstool deterioration, and inconsistences in the Defendant’s record-keeping, all gave rise to factual disputes that were appropriate for resolution by a jury.

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 Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Superior Court Affirms Trial Court Decision Granting Preliminary Objections To Venue

In the its Non-precedential decision in the case of Ojo v. Hanover Foods Corp., No. 2037 EDA 2024 (Pa. Super. Sept. 25, 2025 Panella, J., Nichols, J., and Ford Elliot, P.J.E.) (Op. by Panella, J.), the Pennsylvania Superior Court affirmed a trial court’s sustaining of Preliminary Objections asserting that venue was not proper in Philadelphia County. 

The court in this matter reviewed the record and stated that there was no evidence that the Defendants in this matter regularly conducted business in Philadelphia. The court noted that the Defendant did not have any products in Philadelphia or any physical presence in that County.

The court noted that the mere shipment of raw materials in sealed containers does not constitute conducting business in this context.

The court also ruled that the purchasing of products from Philadelphia suppliers did not constitute doing business in Philadelphia in this context.

Anyone wishing to review a copy of this Non-precedential decision 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.

Federal Court Motion To Transfer Denied

In the case of Bryne v. Terex USA, LLC, No. 2:25-CV-00586-GAM (E.D. Pa. McHugh, J. Oct. 28, 2025), the court denied a Motion by a Defendant to Transfer a case from the Eastern District to the Middle District, where the alleged accident occurred.

In so ruling, the court noted that, under 28 U.S.C. §1404(a), District Courts may transfer a case to another district where venue is proper “for the convenience of parties and witnesses or in the interests of justice.”

The court applied the various factors set forth in the case of Jumara v. State Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir. 1995) to support the denial of the Motion to Transfer.

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


Source: Article – “Fed. Judge Rejects Manufacturer’s Attempt to Move Product Liability Suit to Middle District,” By Riley Brennan of The Legal Intelligencer (Oct. 30, 2025).

Court Finds That Defendant Failed To Produce Evidence in Support of Improper Venue Argument

In the case of Barnowski v. CBRE Global Investors, LLC, No. 2023-CV-2568 (C.P. Lacka. Co. Oct. 2, 2025 Nealon, J.), the court addressed venue issues in a premises liability action.

According to the Opinion, the Plaintiff commenced this premises liability lawsuit against two (2) owners of a property that was located in Montgomery County where the Plaintiff allegedly fell. 

The Plaintiff asserted that venue was proper in Lackawanna County under Pa. R.C.P. 1006(c) and 2179(a)(2) since he alleged joint and several liability and given that one of the Defendants allegedly regularly conducted business in Lackawanna County.

The Defendants filed Preliminary Objections asserting improper venue. 

Given that the Defendant’s Preliminary Objections were not supported by affidavits or evidence, the parties were initially directed to conduct venue-related discovery pursuant to Pa. R.C.P. 1028(c)(2) and to, thereafter, resubmit the issue to the court.

During the course of that discovery, the Defendants produced a corporate designee who testified under oath that she did not know whether the Defendant’s conducted any business in Lackawanna County or owned any property or employed any workers in this county.

Judge Terrence R. Nealon
Lackawanna County

The court noted that the Defendant’s Preliminary Objections asserting improper venue was resubmitted to the court for a decision based upon the limited evidentiary record noted above.

In his decision, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reaffirmed well-settled law of Pennsylvania that a Plaintiff’s choice of forum is entitled to “great weight.” 

The court also noted that the Defendants had the burden of producing evidence to establish that venue was improper in the chosen forum and that a change of venue was warranted.

The court found that the Defendants, despite being afforded a reasonable opportunity to produce evidence to support their improper venue argument, had failed to do so. As such, Judge Nealon ruled that, given that the Plaintiff had asserted joint and several liability against the Defendants, venue is proper as to both Defendants and the Preliminary Objections asserting improper venue with respect to Lackawanna County was overruled.

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


Source: Lackawanna Jurist (Oct. 31, 2025).

Summary Judgment Denied in Case Involving Trip and Fall on Jogging Trail

In the case of Sember v. Lackawanna Heritage Valley Auth., No. 2024-CV-3255 (C.P. Lacka. Co. Oct. 22, 2025 Powell, J.), the court addressed a Motion for Judgment on the Pleadings filed by the Defendants claiming immunity under the Recreational Use of Land and Water Act relative to a trip and fall incident that occurred while the Plaintiff was jogging on the Lackawanna Heritage Trail.

The City of Scranton, which was a Co-Defendant, additionally asserted that it was entitled to immunity under the Political Subdivision Tort Claims Act.

Both Defendants asserted that they were entitled to immunity under the Recreational Use of Land and Water Act given that the trail was on recreational land that was open to the public without charge. 

The Defendants asserted that the Act provided that owners owe no duty to recreational uses to maintain safety or to warn of dangers, including with respect to paved and unpaved trails. The Defendants claimed that the Lackawanna Heritage Valley Authority and the City of Scranton both constituted owners under the Act. 

Here, however, the Plaintiff alleged a man-made hazard, that is, a raised concrete base, and also asserted that the Defendants knew of that condition but failed to repair it or warn the persons entering the land about the condition. 

Judge Mark Powell
Lackawanna County

As such, Judge Mark Powell of the Lackawanna County Court of Common Pleas held that there were issues of fact and that it could not determine from the pleadings alone whether the RULWA applied at this early stage of the litigation.  The court more specifically found that factual development was required to assess whether the condition at issue was part of the trial’s recreational use or an artificial structure beyond the protection of the Act.

Relative to The City’s claim of governmental immunity under the Political Subdivision Tort Claims Act, the City asserted that it was immune because the trail was maintained by the Lackawanna Heritage Valley Authority and was not under The City’s “care, custody, or control.” The City of Scranton also argued that the Plaintiff’s claim did not fall under any of the exceptions to the grant of immunity.

The court found that the record was insufficient to determine the extent of each Defendant's control or whether the defect constituted a dangerous condition of real property that might trigger an exception to immunity. In light of these questions of fact, the court denied the Motion for these additional reasons.

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


Source: Lackawanna Jurist (Oct. 31, 2025).

CORRECTION OF TITLE OF YESTERDAY'S POST

 

The title of yesterday's post indicated that the court in the premises liability case had "granted" the summary judgment motion.  That was incorrect.  As confirmed in the synopsis of the case provided, the court had actually denied the motion for summary judgment.

I think I must have just wanted to see what a title like that would have looked like.

Sorry for any confusion caused.

You may say I'm a Dreamer.....

Imagine by John Lennon

Summary Judgment Denied in Parking Lot Slip and Fall Case

In the case of Shea v. Kalahari Resorts & Conventions – Poconos, No. 3:23-CV-814 (M.D. Pa. Sept. 22, 2025, Mariani, J.), the court denied a Motion for Summary Judgment in a slip and fall matter involving ice and snow on sidewalks.

In this matter Judge Mariani initially overrulled the Defendant's Motion in Limine to preclude the Plaintiff's engineering expert from testifying at trial.

The court also noted that it could not state, from the information in the record, that the winter conditions in the parking lot of the Defendant's premises amounted to an open and obvious condition.   

The court found that there were genuine issues of material fact as to whether or not the hills and ridges doctrine applied. In this regard, the court noted that the storm at issue had ended eleven (11) hours prior to the accident.

Anyone wishing to review a copy of this decision 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.

Court Denies Motion For Summary Judgment in Store Trip and Fall Case

 In the case of Vargas v. Wal-Mart Supercenter, No. 3:22-CV-01642 (M.D. Pa. Oct. 7, 2025 Latella, Mag. J.), the court denied a Defendant’s Motion for Summary Judgment in a premises liability case. 

The Defendant was attempting to rely upon surveillance videotape evidence that showed the Plaintiff's actions at the time of the incident.  The Defendant also asserted that the video confirmed that the conditin that the Plaintiff encountered was open and obvious.

Federal Mag. Judge Leo Latella

Federal Middle District Court Magistrate Judge Leo Latella ruled that the Defendant’s surveillance videotape evidence did not reach the level of an irrefutable physical fact that could support summary judgment in this slip and fall matter.  

With regards to the Defendant’s argument that the interpretation of the video established the assumption of the risk defense as a matter of law, the court noted that it was for the jury to decide whether the Plaintiff’s account of the events leading to the fall down event was believable.  

The court additionally noted that the Defendant should have taken customer distraction into account in maintaining safety on the premises. 

Anyone wishing to review a copy of this decision 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.  

BOOK PUBLISHED: RAISING THE BAR - A Practical Guide to the Practice of Law by Daniel E. Cummins

The Pennsylvania Bar Institute recently published my book entitled Raising the Bar: A Practical Guide to the Practice of Law.  This book has been published as an e-book.

To the extent you may be interested in the same, here is a LINK to the Book cover, the Table of Contents so that you can get a sense of the content, and an excerpt from the article entitled "Lessons from The Godfather."

The book compiles my articles from over the past two decades providing a wide variety of tips and encouragement to help young lawyers and experienced lawyers alike improve their practice of law.

Here is the LINK to the webpage on the PBI's website where the book can be purchased if you are interested.

Thank you for your consideration.

Pennsylvania Supreme Court Reaffirms the Statutory Employer Doctrine

In the case of Yoder v. McCarty Construction, 43 MAP (Pa. Oct. 23, 2025) (Op. by Brobson, J.)(McCaffery, J., concurring), the Pennsylvania Supreme Court reaffirmed the validity of the statutory employer doctrine under the Worker’s Compensation Act and rejected arguments from the Plaintiff seeking to abolish this doctrine.

According to the Opinion, the Plaintiff suffered a workplace injury when he fell through a hole during roofing work. The Plaintiff was an employee of a subcontractor.

The general contractor asserted the defense of statutory employer immunity in the personal injury action arising out of the accident.

The Supreme Court began its decision by reaffirming the law behind the statutory employer doctrine that has been in effect in Pennsylvania since 1930.

That long-standing law provides that, under the Workers’ Compensation Act (Act), a general contractor that hires a subcontractor to perform work on a jobsite is deemed an “employer” that is secondarily liable to the injured employee of the subcontractor for the payment of compensation under the Act, provided that the subcontractor—the one primarily liable—fails to make payment. Section 302(b) of the Act, 77 P.S. § 462.

In exchange for this imposition of secondary liability, the Act’s statutory employer provision in Section 203 of the Act, 77 P.S. § 52, extends to a general contractor the same tort immunity afforded to the subcontractor of the injured worker.

At the Supreme Court level in this Yoder case, the court rejected arguments by the Plaintiff that the statutory employer doctrine should be rejected and/or that such immunity should be deemed to be waivable in certain circumstances. As noted, the Court rejected these arguments and instead reaffirmed that the statutory employer doctrine remains a valid part of Pennsylvania worker’s compensation law.

The case was remanded back to the trial court for further proceedings to determine whether the general contractor satisfied the elements of the five (5) part statutory employer test as formulated back in 1930 in the case of McDonald v. Levinson Steel Co., 153 A. 424, 426 (Pa. 1930).

Anyone wishing to review a copy of this decision may click this LINK.  The Concurring Opinion by Justice McCaffery can be viewed HERE.


I send thanks to Attorney Glen Ricketti of the Philadelphia office of the Margolis Edelstein law firm for bringing this case to my attention.

Summary Judgment Still Entered For Trucker Where GPS Confirmed Speed Contradicts Witness's Testimony on Speed

In the case of Thomas v. Orozco-Pineda, No. 3:24-CV-288 (M.D. Pa. Sept. 30, 2025 Mannion, J.), the court granted a partial Motion for Summary Judgment on a claim for punitive damages in a trucking accident case.

The court noted that the undisputed GPS data in the record established that the Defendant’s driver was not speeding at the time of the accident.

However, the court also noted that a witness testified at a deposition that the tractor trailer driver had been speeding moments before the accident.

Nevertheless, the court found that the witness's testimony did not establish a factual dispute sufficient to defeat the Defendant's summary judgment motion.

The court noted that where one party’s or witnesses’ version of events is blatantly contradicted by the record, such that no reasonable jury could believe it, a court should not accept or adopt that version of the facts for purposes of ruling on a Motion for Summary Judgment.

In addition to the GPS data confirming that the driver was traveling at or around 55 mph in a 65 mph speed limit zone at the time of the accident, the court stated that there was no other credible evidence of speeding.

The court additionally found that the "clean" road conditions did not support the Plaintiffs’ claims that even driving below the speed limit was too fast for the conditions. The court also noted that there was no reduced speed limit in effect at the time the accident occurred.

Accordingly, the court found that, given that there was no credible evidence of speeding on the part of the Defendants, the Plaintiffs had no factual basis for seeking punitive damages.

The court also ruled that, therefore, there was also no vicarious basis for punitive damages against the driver’s employer.

Anyone wishing to review a copy of this decision 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.

Source of image:  Photo by Le Minh on www.pexels.com.

Superior Court Clarifies Calculation of Interest and Attorney Fees in Bad Faith Cases

In the case of DiVincenzo-Gambone v. Erie Insurance, No. 1699 MDA 2024 (Pa. Super. Oct. 17, 2025 Olson, J., Beck, J., Dubow, J.) (Op. by Olson, J.), the Pennsylvania Superior Court clarified how interest and attorney fees should be calculated in bad faith insurance cases. 

In this decision, the appellate court also ruled in favor of the insured who had asserted that the carrier had wrongly withheld part of an Arbitration Award entered on the case presented. 

In this decision, the Superior Court vacated part of the trial court’s judgment by holding that the trial court miscalculated damages under the Pennsylvania bad baith statute when that court awarded compound interest instead of simple interest. 

The court also noted that the trial court had erred by basing attorney’s fees on a contingency rather than the lodestar method. Under the lodestar method, hours spent on a case by an attorney are multiplied by a reasonable hourly rate.

The Superior Court also ruled that interest should be calculated from the date that the underlying insurance claim was made.

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


Source: Article – “Pennsylvania Superior Court Clarifies State’s Bad Faith Law In Precedential Opinion,” By Tristin Hoffman The Legal Intelligencer (Oct. 21, 2025).

Superior Court Reinstates Personal Injury Case That Trial Court Terminated for Lack of Activity

In the case of Eisenhart v. WellSpan Health, No. 1681 MDA 2024 (Pa. Super. Oct. 1, 2025 Bowes, J., Stabile, J., Stevens, P.J.E.) (Op. by Stabile, J.), the Pennsylvania Superior Court reinstated a premises liability case that had been terminated by the trial court for lack of activity.

The Superior Court noted that there was insufficient evidence in the record to establish that notice of a proposed termination that was sent out by the court, or that the termination order itself, was duly served by mail in accordance with Pa. R.C.P. 230.2.

The court noted that the rule is not satisfied when the Prothonotary fails to indicate anywhere in the record that notice was sent in the manner required by Pa. R.C.P. 236(b).

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


Source: “Court Summaries” By Timothy L. Clawges in The Pennsylvania Bar News (Nov. 3, 2025).

TORT TALK PASSES 4,500 MARK

 

4,500 Posts

Tort Talk, which has been in existence 

over the past 16 years since 2009, 

recently published its 4,500th post.

Sending thanks to all the Tort Talkers 

who read and contribute to the blog.

THANK YOU VERY MUCH

Daniel E. Cummins

Cummins Law

Clarks Summit, PA

BOOK PUBLISHED!! -- RAISING THE BAR: A Practical Guide to the Practice of Law -- by Daniel E. Cummins, Esq.

Proud to note that the Pennsylvania Bar Institute (PBI) has published my book entitled Raising the Bar:  A Practical Guide to the Practice of Law.  

The book, which is in e-book format, compiles my articles from over the past two decades on tips to improve your practice of law.

Remember those articles taking themes from The Godfather or Ferris Bueller's Day Off?  How about those articles applying holiday traditions to offer tips to improve your practice?  Or those other articles that simply provided tips to improve your depositions? And don't forget those articles that encourage you to take vacations and to take the time to develop your interests outside the practice of law.

These articles have all been compiled in a single book and can be purchased from the PBI at this LINK.

IT'S THAT TIME OF YEAR THAT CARRIERS ARE LOOKING TO CLOSE FILES --- CONSIDER UTILIZING CUMMINS MEDIATION

 BRING YOUR CASE TO A CLOSE

DANIEL E. CUMMINS, ESQ.

570-319-5899

dancummins@CumminsLaw.net

Contact CUMMINS MEDIATION SERVICES to set up your Mediation to bring your case to a close.

Who better to get an insurance company to increase their award

than the writer of Tort Talk and

an insurance defense attorney trusted by carriers to get them out of trouble?

HERE'S A SAMPLING OF JUST SOME OF THE FIRMS

WHO PREVIOUSLY SECURED SETTLEMENTS AT MEDIATIONS WITH CUMMINS MEDIATION SERVICES:

HOURIGAN, KLUGER & QUINN

LENAHAN & DEMPSEY

ABRAHAMSEN, CONABOY & ABRAHAMSEN

POWELL LAW

CEFALO & ASSOCIATES

LAW OFFICES OF JAMES D. FAMIGLIO

FOLEY LAW FIRM

NEEDLE LAW

OSTROFF GODSHALL

FISHER & FISHER

BLAKE & WALSH

CAPUTO & MARRIOTTI

HAGGERTY, HINTON & COSGROVE

SLUSSER LAW

VINSKO & ASSOCIATES

BISCONTINI LAW FIRM

MECADON LAW

LAW OFFICES OF LEO JACKSON

SOBO & SOBO

MARKS O'NEILL, O'BRIEN, DOHERTY & KELLY

RAWLE & HENDERSON

POST & SCHELL

SWARTZ CAMPBELL

BENNETT BRICKLIN & SALTZBURG

CIPRIANI & WERNER

MINTZER SAROWITZ, ZERIS, LEDVA & MEYERS

SHAY, SANTEE, KELHART & DESCHLER, LLC

McCORMICK & PRIORE

THOMAS, THOMAS & HAFER

SCANLON, HOWLEY & DOHERTY

MARGOLIS EDELSTEIN

MARSHALL DENNEHEY

ELLIOTT GREENLEAF

COLEMAN LAW OFFICES

PennDOT

SELECTIVE INSURANCE IN-HOUSE COUNSEL OFFICE

NATIONWIDE INSURANCE IN-HOUSE COUNSEL

TRAVELERS INSURANCE IN-HOUSE COUNSEL

LACKAWANNA PRO BONO ANNUAL FUNDRAISING GALA -- PLEASE CONSIDER ATTENDING OR SPONORING

Court Rules that Winter Conditions in Parking Lot Were Open and Obvious To Slip and Fall Plaintiff

In the case of Hinton-Hardison v. Kohl’s, Inc., No. 2022-SU-003063 (C.P. York Co. Sept. 22, 2025 Menges, J.), the court granted a Defendant’s Motion for Summary Judgment in a slip and fall case. According to the Opinion, the incident occurred at a Kohl’s department store. Kohl’s had contracted with a snow removal contractor to take care of the property. That snow removal contractor subcontracted the work to a different snow removal contractor.

The subcontractor snow removal company filed the Motion for Summary Judgment. The Defendant asserted that the Plaintiff’s claims were barred by the Plaintiff’s assumption of the risk.

The court agreed.

The court noted that the condition of the ice and/or snow at issue in this case was the type that would be apparent to and recognized by a reasonable person, exercising normal perception, intelligence, and judgment. The court noted that its determination that reasonable minds on a jury could not differ as to the conclusion that the conditions in the parking lot presented as an obvious condition.

As such, the court felt “constrained” to grant the snow removal contractor’s Motion for Summary Judgment.

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

I send thanks to Attorney Jennifer P. Carter of the York, PA law firm of Griffith, Lerman, Lutz & Scheib for bringing this case to my attention.

LACKAWANNA PRO BONO 17TH ANNUAL FUNDRAISING GALA SET FOR NOVEMBER 6TH

 

Court Finds in Favor of Insurance Company in Fire Loss Case

In the case of State Farm Fire & Cas. Co. v. Russell, Feb. Term 2023, No. 0070 (C.P. Phila. Co. June 13, 2025 Garcia, J.), the trial court issued a Rule 1925 Opinion requesting that the Superior Court uphold the trial court’s denial of a Defendant’s post-trial motions in a property damage fire loss subrogation case.

According to the Opinion, the Defendant appealed the trial court’s judgment in favor of a Plaintiff property insurance company in a subrogation action for damages sustained to the insured’s property as a result of a fire.

In this case, the Plaintiff’s insured owned a property adjacent to the Defendant’s property. The Defendant had hired a neighborhood handyman to fix a hole in the roof of the Defendant’s property.

During the repair, a tenant in the Plaintiff’s insured’s property observed individuals on the roof of the Defendant’s property using an open flame while working. Shortly thereafter, the tenant saw smoke coming from the Defendant’s property. The fire department then arrived and extinguished a fire centered around the Defendant’s skylight.

The Defendant acknowledged the existence of the fire, which had resulted in smoke and water damage to the Plaintiff’s insured’s property. The Plaintiff insurance company paid for the property damages sustained by its insured, along with lost rent, and then sought reimbursement from the Defendant through this subrogation action.

In this matter, the trial court found that the Defendant had failed to exercise reasonable care in hiring a competent and careful contractor for work involving significant risk if not skillfully handled, all as articulated by §411 of the Restatement (Second) of Torts.

The court emphasized that the Defendant knew that the handyman was not a qualified roofer, and that the handyman’s lack of skill, necessary precautions, and failure to have proper equipment all increased the risk of a fire during a hazardous roof repair involving an open flame. The evidence otherwise demonstrated that precaution to prevent or minimize fire damage were not taken.

As such, the trial court entered judgment in favor of the Plaintiff insurance company and awarded damages. The Defendant filed a post-trial Motion, arguing lack of evidence regarding negligence. That Motion was denied.

As noted, with this Rule 1925 Opinion, the trial court requested the appellate court to affirm the trial court’s denial of the Defendant’s post-trial Motions.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Sept. 25, 2025).

Trial Court Dismisses Claim of Non-Trepassory Invasion Asserted Against a Defendant in a Fire Loss Case

In the case of Pursell v. DTB Services, LLC, No. 691-CV-2025 (C.P. Monroe Co. Sept. 22, 2025 C. Daniel Higgins, J.), the court sustained certain Preliminary Objections filed by a Defendant in a fire loss case.

According to the Opinion, the Defendant is a company that engages in the business of installing, servicing, and repairing gas fireplaces. The Plaintiffs are homeowners who utilized the Defendant’s services.

The Plaintiffs allege that the Defendants were negligent in providing inspection and repair work on the Plaintiff’s gas fireplace.

More specifically, the Plaintiffs alleged that the Defendant failed to inform the Plaintiffs that the outside vent to the fireplace was low-grade and dangerously close to combustibles. The Plaintiffs also allege that the Defendants did not recommend any urgent corrective action or that the fireplace should not be used.

Thereafter, a fire occurred. The Plaintiffs contended that the fire was the result of combustibles located near the venting system igniting.

In one of the Counts of their Complaint, the Plaintiffs alleged that the Defendants’ acts and/or omissions interfered with the Plaintiffs’ right of peaceful enjoyment of their real property. The Plaintiffs otherwise alleged in that Count that the Defendant committed a non-trespassory invasion of the Plaintiffs’ property by way of the Defendants’ negligent conduct and that the invasion caused the fire. The Defendants filed a Preliminary Objection to this Count asserting that the Plaintiffs failed to plead any facts that could be considered to be an invasion of their privacy.

The court noted that a claim for interference with the right of peaceful enjoyment of one’s real property is based on the private nuisance doctrine. The court noted that this doctrine is governed under Pennsylvania law by §822 of the Restatement (Second) of Torts.

The court noted that, under §822l, liability exists in this regard only if the contested “conduct is the legal cause of an invasion of another’s interests in the private use and enjoyment of any land.” Under the law, such an invasion must be either intentional and unreasonable, or unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions and activities.

The court noted that an “invasion” in this context has been identified under the law as occurring when a Plaintiff’s property interests have been encroached by something that has come onto the property against the Plaintiff’s will.

Here, the court found that the Plaintiff did not assert any facts that would allow for a jury to presume that the Plaintiff did not voluntarily use Defendant’s services and invite them onto to their property for the inspection and/or maintenance of their fireplace.

Accordingly, the court found that, regardless of whether or not the Defendant’s actions at the Plaintiffs’ home were the cause of the fire, such actions did not constitute an invasion as that term is identified by the law. Accordingly, the court sustained the Defendant’s demurrer to this Count of the Plaintiffs’ Complaint.

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


I send thanks to Attorney Richard (Ricky) E. Santee, Esquire of the Bethlehem, PA law firm of Shay, Santee, Kelhart & Deschler, LLC for bringing this case to my attention.

Trial Court Urges Superior Court to Dismiss Plaintiff's Appeal for Failing to File a Concise Statement of Matters Complained of On Appeal

In the case of Becker v. Empire Holdings, LLP, LLC, No. 2024-CV-05339 (C.P. Bucks Co. June 12, 2025 Corr, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to dismiss the Plaintiff’s appeal relative to the trial court’s sustaining of the Defendant’s Preliminary Objections to the Plaintiff’s Complaint.

This case arose out of issues that the Plaintiff had relative to repairs made to the Plaintiff’s Range Rover vehicle.

One of the Preliminary Objections sustained by the court resulted in the dismissal of the Plaintiff’s Complaint for lack of jurisdiction.

In its short Opinion, the trial court noted that the appeal by the Plaintiff should be dismissed because the Plaintiff failed to file his Statement of Matters Complained of on Appeal. The trial court ruled that the Plaintiff had therefore waived all issues for appeal as a result.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Sept. 5, 2025).

SAVE THE DATE FOR A GOOD CAUSE!

 

Court Confirms Bus Operator Has No Obligation To Wait Until Passenger Sits Before Proceeding

In the case of Musser v. Southeastern Pennsylvania Transp. Auth., May Term, 2023, No. 230502736 (C.P. Phila. Co. Jan. 22, 2025 Jacquinto, J.), the trial court issued a Rule 1925 Opinion detailing the reasons for its denial of the Plaintiff’s post-trial motions in a matter involving a Plaintiff who was injured when a SEPTA bus began to move before the Plaintiff had sat down as a result of which the Plaintiff allegedly fell.

The trial court concluded that its judgment should be affirmed where the trial court felt that it did not err in instructing the jury that, under Pennsylvania law, a bus operator has no obligation to wait until boarding passengers are seated before proceeding from a stop.

The jury in this matter concluded that the Plaintiff was 74% negligent, which resulted in a defense verdict.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (June 11, 2025).

Source of image:  Photo by Cottonbro Studio on www.pexels.com.

Punitive Damages Claims Allowed To Proceed in Case Involving Fatal Trucking Accident at a Loading Dock

In the case of Feliciano v. Landstar Inway, Inc., No. 5:24-CV-00668-JMG (E.D. Pa. Aug. 15, 2025 Gallagher, J.), the court denied a trucking Defendant’s Motion for Summary Judgment on the punitive damages claims.

According to the Opinion, this fatality matter arises out of an incident during which the decedent died when he was struck by the Defendant’s truck and pinned against a loading dock at a warehouse. After suit was filed, the Defendant filed a Motion for Summary Judgment the claims for punitive damages. The court allowed the punitive damages claims to move forward after finding that a reasonable jury could find that the Defendant employees acted with deliberate indifference in failing to prevent the accident from happening.

Reviewing the record, the court noted that, although the Defendant truck driver believed that he had fully engaged the brakes of the vehicle just prior to the accident, there was evidence that the Defendant driver did not engage the additional service brake while recognizing that the warning buzzer was going off indicating that the brakes may not have been activated and where that Defendant driver could not see where the Plaintiff was located. The court noted that, under such circumstances, a reasonable person could realize that someone could be significantly hurt in such a scenario. Accordingly, the court denied the Defendant’s Motion for Summary Judgment.

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


Source – Article: “Estate Court Recoup Punitive Damages Following Tractor-Trailer Accident, Judge Rules,” By Riley Brennan of The Pennsylvania Law Weekly (Aug. 19, 2025).

Source of image - Photo by Elevate on www.pexels.com.