Superior Court Affirms Trial Court's Dismissal of Case Under Doctrine of Forum Non Conveniens

In its non-precedential decision in the case of Gravenor-Reuter v. Acme Markets, Inc., No. 580 EDA 2024 (Pa. Super. March 11, 2025 Dubow, J., King, J., and Sullivan, J.) (Op. by Dubow, J.), the Pennsylvania Superior Court affirmed a trial court’s dismissal of a case under the doctrine of forum non conveniens.

According to the Opinion, this matter involved Plaintiffs, who are residents of Delaware, from bringing a lawsuit in Philadelphia County regarding a slip and fall incident that happened in Delaware. The court also noted that the Plaintiff’s medical care occurred in Delaware.

The Pennsylvania Superior Court noted that Delaware is an available alternative forum for the Plaintiffs in this matter. The court also ruled that the Plaintiff’s choice of forum received less deference when the Plaintiff had chosen forum that is foreign to where the case can be brought.

In this matter, the court noted that the Plaintiff offered no evidence that any corporate decisions made by the Defendant, which was headquartered elsewhere in Pennsylvania, played any role in the incident that lead to the Plaintiff’s alleged injuries.

The Pennsylvania Superior Court ultimately ruled that the trial court’s decision dismissing the case under the doctrine of forum non conveniens was not an abuse of discretion.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.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 Reed Smith office in Philadelphia for brining this case to my attention.

Tort Talk as a Research Tool

 

Most Tort Talkers receive their Tort Talk info by way of email. If you are not already an email subscriber to Tort Talk and would like to become one (it's FREE), please go to Tort Talk at www.TortTalk.com and insert your email address into the Email Subscription box in the upper right hand corner of the blog and follow the instructions to complete the process.

Once you are up and running, you will automatically receive the updated posts added to Tort Talk (an average of 2-3 per week) on notable cases and trends in Pennsylvania Civil Litigation Law.

In addition to Tort Talk being a way to get free continuing updates on notable new cases and trends, it can also serve to kickstart your legal research in a streamlined fashion if you actually go to the Tort Talk site at www.TortTalk.com.  

On the site itself there are a number of research tools to help you find the case(s) or article(s) you are looking for.

Please note that Tort Talk is NOT an exhaustive legal research site--you should always supplement your research on your issue(s) presented elsewhere to ensure that you have a thorough review of the area of law in question.  Also, any case you find should be "Shepardized" to see if there has been any more recent, adverse (or favorable) rulings.

Here are the research tools available on Tort Talk that you can use to kickstart and streamline your research:


Search This Blog Box

The "Search This Blog" Box in the upper right hand column of the site allows readers to type in search terms or key words to look for posts on that particular topic. 

By typing in your search term in the white box (terms like, "delay damages," "limited tort," "slip and fall," or a case name, etc.), you will be sent to a page that will list each Tort Talk post that covers that topic. You can then click on a Link within each post that comes up in order to read the actual decision of the court.   

If the blog post does not have a Link to the decision but instead notes that you can email me for a copy, please do not hesitate to send me an email to request a copy of the decision.

Post-Koken Scorecard

You can always access the Post-Koken Scorecard to check on the status of decisions in your county on Post-Koken issues by scrolling down the right hand column of the blog and clicking on the date under the Label "Post-Koken Scorecard."


Facebook Discovery Scorecard

You can always access the Facebook Discovery Scorecard to check on the status of Pennsylvania decisions on Facebook Discovery issues by scrolling down the right hand column of the blog and clicking on the date under the Label "Facebook Discovery Scorecard."


Labels

Further down on the right hand column of the Tort Talk blog is a section called "Labels," which is another tool that you can use to find cases or articles on a specific topic.  

The topics, or Labels, are listed in alphabetical order.  

By clicking on the Label that's specific to your research ("Bad Faith," "Limited Tort," "Future Medical Expenses," etc.) you will be sent to a page that list each and every Tort Talk post that touches upon that topic.

Published Articles

If you type the word "Article" in the Search Box on the upper right hand corner of the blog, you will get to a number of different articles on various civil litigation issues.

You can get more specific in your search for an article as well, such as typing "Article recklessness," and that will bring you to an article on that topic.


Links

Last but certainly not least, down on the right hand column is a list of "Links" I have created to other sites, including my Firm's website and other online professional profiles that I have created along with links to some other legal and non-legal-related websites that may be of interest.



Thanks again for reading Tort Talk and thanks to all who have provided tips on breaking news and cases of note. I am grateful for your interest and support of the Tort Talk Blog.  Please feel free to send me a copy of any notable decisions you may generate in your practice for possible highlighting here on Tort Talk.

If I should be able to you help out in any way with respect to research on Tort Talk, or in any other way, please do not hesitate to contact me at dancummins@CumminsLaw.net or at 570-591-3969.  

LACKAWANNA PRO BONO'S GOLF TOURNAMENT (AND CLE)

 

How To Correct The Wrong Name of a Party As Listed in a Writ of Summons

 In the case of Surefire Dividend Capture, L.P. v. The PNC Fin. Serv. Group, Inc., No. 1222 WDA 2023 (Pa. Super. March 10, 2025 Olson, J., Murray, J., and Bender, P.J.E.) (Op. by Olson, J.), the Superior Court vacated a trial court’s Order permitting an amendment to a Writ of Summons to change the name of the Defendant. The court concluded that, Pa. R.C.P. 1033, by its expressed terms, applied only to pleadings and a Writ of Summons was not a pleading under Pennsylvania Rules of Civil Procedure 1017.

According to the Opinion, the Plaintiffs began a lawsuit against certain Defendants. Thereafter, the Plaintiffs filed a Motion to Amend pursuant to Pa. R.C.P. 1033 to amend their Writ of Summons to correct the name of one of the Defendants.

Rule 1033(a) provides, in pertinent part, that “[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of the party, or otherwise amend the pleading.”

In this case, the court emphasized that the Plaintiffs had not yet filed a Complaint.

The Defendants opposed the motion claiming that the rule did not allow a party to amend a Writ of Summons and thereby add an entirely new party as a Defendant.

The Superior Court ruled the pertinent Pennsylvania Rules of Civil Procedure and concluded that a Writ of Summons is not a pleading.

The court also noted that Rule 1033 was amended in 2014 such that it no longer allowed, and could no longer be construed to permit, the correction of the name of a party in a Writ of Summons.

The Superior Court noted that the Plaintiff’s objective could be accomplished under Pa. R.C.P. 229 by discontinuing the current action and beginning a new lawsuit. The court also noted that, under Pa. R.C.P. 1033, the Plaintiff could amend the caption of a later pleading by agreement of the party or by leave of court. It was also noted that the Plaintiff could, under Pa. R.C.P. 2232, seek leaving of court for an Order to join a Defendant.

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


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (March 25, 2025).

Source of image:  Photo by Poppy Thomas Hill on www.pexels.com.

Judge Nealon of Lackawanna County Reviews the Current Status of the Law in Pennsylvania on Proper, Timely Service of Process

In the case of Doherty v. Burnham, No. 2024-CV-3829 (C.P. Lacka. Co. March 24, 2025 Nealon, J.), the court denied a Defendant’s Preliminary Objections in the nature of a demurrer seeking to dismiss a premises liability action on the grounds that the Plaintiffs failed to effectuate service of original process prior to the expiration of the applicable statute of limitations.

According to the Opinion, this matter arises out of a slip and fall event that occurred on July 3, 2022. The Plaintiffs commenced this lawsuit by filing a Writ of Summons on June 11, 2024, which was about a month before the statute of limitations expired.

The Plaintiff delivered the original process to the Lackawanna County Sheriff to be served. The Sheriff filed a Return of Service indicating that he was unable to serve the Defendant at the address provided given that the Defendant no longer resided at that address.

At that point, the Plaintiff’s attorney immediately undertook efforts to locate the Defendant’s current address. Once the Plaintiff’s attorney discovered the new address for the Defendant, Plaintiff's counsel reissued the Writ of Summons and re-delivered the Writ to the Sheriff for service. This Defendant was then served on August 21, 2024.

In the Preliminary Objections, the Defendants asserted that the Plaintiff failed to serve the Defendant within the thirty (30) day time period required by the Rules of Civil Procedure and given that service of process was not completed until after the expiration of the statute of limitations. The court noted that, in this case, forty-nine (49) days had passed between the expiration of the statute of limitations and the date service was completed.

The Plaintiffs countered with the argument that they exercise diligent efforts to complete service of process. The Plaintiffs also noted that they properly reissued the Writ of Summons and had additionally notified the Defendant’s carrier of the commencement of the suit by Writ.

In his Opinion, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas provide a thorough recitation of the current status of Pennsylvania law relative to the proper completion of service of original process.

After reviewing that law and applying the same to the facts before him, Judge Nealon ruled that the Plaintiffs had presented evidence that they had diligently attempted to complete service in a timely fashion and that the Plaintiff did not engage in any conduct evincing any intent to stall the judicial machinery the Plaintiff had put in place by filing suit.

As such, the Defendant’s Preliminary Objections were overruled.

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


Source: “Scranton Judge’s Ruling Clarifies Efforts Plaintiffs Must Undergo To Serve Defendants on Time,” By Aleeza Furman of The Legal Intelligencer (March 25, 2025).

HEADS UP!! THIS WEDNESDAY, APRIL 23, IS ADMINISTRATIVE PROFESSIONALS DAY

 

This Wednesday, April 23, is Administrative Professionals Day, day to celebrate and say thanks to those who help us to keep it all together and moving forward.

Source of image:  Photo by George Dolgikh on www.pexels.com.

Federal Court Addresses Whether Nationwide's "One Product" Policy is a New Policy or a Renewal Policy

In the case of McGuire v. Nationwide Aff. Ins. Co. of America, No. 2:23-CV-01347-NR (W.D. Pa. March 6, 2025 Ranjam, J.), the court denied the carrier’s Motion for Reconsideration of the court’s previous decision relative to a UM/UIM coverage issue.

With this decision denying the carrier’s Motion for Reconsideration, the court maintained its previous position on whether Nationwide’s “One Product” policy was a new policy or a renewal of a prior policy.

In the court’s eyes, several of the “clarifications” in the One Product policy amounted to changes that reduced the amount of coverage from the prior policy. In light of this, the court ruled that the One Product policy could not be considered to be a “renewal” policy.

Rather, the court found that the purchase of a One Product policy amounted to the purchase of a new policy and that, therefore, under Pennsylvania law, Nationwide was required, as with any other purchase of UM or UIM coverage, to provide its insureds with a new stacking waiver form to execute under 75 Pa. C.S.A. §1738(c).

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

I send thanks to Attorney Scott Cooper of the Harrisburg law firm Schmidt Kramer for bringing this decision to my attention.

UPCOMING CLE FOR YOUR CONSIDERATION

 I thank Harris Bock for inviting me to present at his famous annual CLE this year.

I will be presenting an update on notable court decisions and trends in Pennsylvania personal injury litigation matters over the past year or so as highlighted on my Tort Talk Blog (www.TortTalk.com).

Need CLE credits?

Please consider registering for this seminar at which you can attend via Zoom on April 24, 2025.  The spots for live, in-person attendance have been sold out.

Thanks for considering -- hope to see you there.

 

GOLF TOURNAMENT AND/OR CLE -- PLEASE SUPPORT LACKAWNNA PRO BONO

 

Zero Verdict For Pain and Suffering Sent Back Down For a New Trial

In its non-precedential decision in the case of Banasiak v. Robinson, No. 2041 EDA 2023 (Pa. Super. Feb. 24, 2025 Olson, J., Dubow, J., and Lane, J.) (Op. by Olson, J.), the Superior Court sent a zero verdict case back down the appellate ladder for a new trial.

According to the Opinion, the Plaintiff was run over by the Defendant’s truck and eventually had to have a leg amputated.

At trial, a jury awarded the Plaintiff his medical expenses but award zero for pain and suffering.

The appellate court ruled that the zero award for pain and suffering was against the weight of the evidence. The court also found that the zero award to the Plaintiff’s wife for loss of consortium was likewise against the weight of the evidence.

Here, the court confirmed that the Defendant did not offer any expert evidence contesting the causation of the Plaintiff’s injury. The Superior Court also reiterated the rule of law that a jury cannot disregard an obvious injury.

The court found that there was no reasonable basis for the jury to believe either that the Plaintiff did not suffer pain or that the Plaintiff's pain was not caused by the Defendant’s negligence.

As such, the case was remanded to the trial court for a new trial.

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 Reed Smith office in Philadelphia for bringing this case to my attention.

Court Rejects Summary Judgment For Open and Obvious Condition in Trip and Fall Case

In the case of Knepp v. Wal-Mart Stores East, L.P., No. 3:22-CV-144 (W.D. Pa. Feb. 28, 2025 Fischer, J.), the court denied a Motion for Summary Judgment in a case in which the Defendant relied upon the open and obvious doctrine relative to a trip and fall incident.

According to the Opinion, this matter arose out of an incident during which the Plaintiff tripped over a pallet corner that was protruding out from a watermelon display.  The Plaintiff offered a liability expert who offered an opinion that the store's placement of the watermelon display in a store aisle with the corner of the pallet protruding out violated OSHA standards to keep walkways clear.  The expert also opined that the display created a tripping hazard for customers and employees alike.   

In denying the summary judgment motion, the court ruled that, even assuming that the condition that caused the Plaintiff to trip was open and obvious, summary judgment was denied in this case where a jury could decide that the Defendant was negligent because the Defendant had reason to expect that a business invitee could be distracted, could fail to discover, and/or could fail to remember what was obvious and, could thereby fail to protect himself or herself.

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


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

Source of image:  Photo by Bo Cho on www.pexels.com.

UPCOMING CLE TO CONSIDER

 I thank Harris Bock for inviting me to present at his famous annual CLE this year.

I will be presenting an update on notable court decisions and trends in Pennsylvania personal injury litigation matters over the past year or so as highlighted on my Tort Talk Blog (www.TortTalk.com).

Need CLE credits?

Please consider registering for this seminar at which you can attend via Zoom on April 24, 2025.  The spots for live, in-person attendance have been sold out.

Thanks for considering -- hope to see you there.

 

Allegations of Recklessness Allowed to Stand in a Complaint

In the case of Lupin v. Evans Delivery Co., Inc., No. 3159-CV-2024 (C.P. Monroe Co. Jan. 21, 2025 C. Daniel Higgins, Jr., J.), the court overruled a Defendant’s Preliminary Objections against allegations of recklessness in a civil litigation matter.

The court reviewed the current status of the law and noted that, under Pa. R.C.P. 1019(b), allegations regarding malice, intent, knowledge, and other conditions of the mind may be generally alleged.

This court also noted that the Superior Court has concluded that allegations of wanton conduct is a condition of the mind that may be alleged generally. This court also noted that the Superior Court had held that, because allegations of recklessness are synonymous with allegations of wanton and willful misconduct, allegations of recklessness may also be alleged generally.

As such, the court overruled the Defendant’s Preliminary Objections.

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

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

DON'T FORGET TO REGISTER FOR THE LACKAWANNA PRO BONO GOLF TOURNAMENT

 

Court Addresses Admissibility of Expert Testimony Under the Federal Employer's Liability Act

In the case of Lindsay v. Delaware and Hudson Railway Co., Inc., No. 2019-CV-3949 (C.P. Lacka. Co. March 3, 2025 Nealon, J.), the court addressed a pre-trial Motion In Limine filed by the Defendants seeking to preclude the opinions of a Plaintiff’s medical expert in a personal injury claim arising out of the Federal Employer’s Liability Act. The Defendants contended that the Plaintiff’s medical expert’s causation opinions were inadmissible since they were based upon methodologies that were not generally accepted in the relevant scientific community.

After reviewing the expert’s report and noting that the expert had a section of his report entitled “Methodology” in which the doctor described the methodologies he utilized in formulating his general causation and specific causation opinions, the court denied the Defendant’s Motion In Limine.

The court note that the materials submitted for the court’s review confirm that the Plaintiff’s medical expert based his causation opinions upon his knowledge, experience, and training in internal medicine, oncology, and hematology, the review of the Plaintiff’s medical records and deposition testimony, the Defendant’s discovery responses, other expert reports, along with the application of the generally accepted methodologies for general causation and specific causation.

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

Source of image: Photo by Todd Trapani on www.pexels.com.

MEDIATION SUCCESS TIP FROM CUMMINS MEDIATION SERVICES

 

 TIP TO IMPROVE CHANCES 

FOR SUCCESS AT MEDIATION:

PROVIDE YOUR MEDIATION SUBMISSIONS TO YOUR OPPONENT --- DON'T KEEP THEM CONFIDENTIAL

YOUR MATERIALS GIVE YOUR OPPONENT AMMUNITION TO GET CLIENT/CLAIMS REP TO CHANGE THEIR POSITION 

Court Addresses Admissibility of Expert Opinions

In the case of Twigg v. Varsity Brands Holding Co., No. 4:23-CV-00067 (M.D. Pa. March 7, 2025 Brann, C.J.), the court provided the latest pronouncement on the Rules of Admissibility for an expert witness under Federal Rule of Evidence 702.

This products liability case arose out of an accident during which a baseball coach was struck by a batted ball that went through an L-screen net while he was pitching batting practice.

In his decision in this case Chief Judge Matthew W. Brann granted in part and denied in part Rule 702 motions regarding experts in the case. In so ruling, the court noted the following principles of law.

An expert’s lack of technical background does not render an expert unqualified where that expert has sufficient practical experience.

The court also ruled that an expert need not have familiarity with a product in order to evaluate the adequacy of a manufacturer’s testing protocols.

The court also noted that an expert may rely solely upon material provided to the expert by counsel. However, that expert is not permitted to rely upon material that has not been disclosed to the opposing party.

The court also reaffirmed the rule that an expert may not testify about matters outside the scope of their opinions.

The court also noted that experts may assume the truth of the contested facts asserted by the parties who hired them. The weight of such opinions depends on how the jury ultimately views the underlying facts.

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 Reed Smith office in Philadelphia for bringing this case to my attention.

Federal Court Remands Case To State Court After Finding Diversity Jurisdiction Defeated by Joinder of Store Manager as a Defendant

In the case of Jones v. Wal-Mart Stores East, LP, No. 2:24-CV-05521-KNS (E.D. Pa. Feb. 4, 2025 Scott, J.), the court granted a Plaintiff’s Motion to Remand this case from federal court back to the Philadelphia Court of Common Pleas.

According to the Opinion, this case arose out a trip and fall case that occurred at a Wal-Mart store.

The Plaintiff filed the lawsuit in the Philadelphia Court of Common Pleas. The Plaintiff sued Wal-Mart and the store manager.

Wal-Mart removed the case to federal court asserting that the store manager Defendant was fraudulently joined and that, therefore, the requirements for a federal diversity jurisdiction were satisfied.

The federal court disagreed and held that remand was required where complete diversity jurisdiction did not exist in light of the fact that the Plaintiff had asserted a valid negligence claims against an individual store manger who, like the Plaintiff, was a Pennsylvania citizen.

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


Source: The Legal Intelligencer Federal Case Alert, www.Law.com (March 7, 2025).

Court Finds That Arbitration Agreement on a Website Was Invalid as it Was Not Conspicuously Noted

In the case of W.W. v. Allegheny Health Network, No. 2:23-CV-01163-CCW (W.D. Pa. Feb. 27, 2025 Wiegand, J.), the court denied a Defendant’s Motion to Compel Arbitration of the Plaintiff’s claims after finding that the Arbitration Agreement, which was contained in a document that could be accessed through a link to the Defendant’s website, was not sufficiently conspicuous enough to put the Plaintiff on notice that the Plaintiff was agreeing to Arbitration.

According to the Opinion, in this matter, the Plaintiff alleged that Alleghany Health Network unlawfully collected confidential health information from users to visited the Defendant’s website and then disclosed the visitor’s information to third parties in violation of federal and state law.

In response to the Complaint filed, the Defendant moved to compel Arbitration pursuant to the Arbitration Agreement appearing in the network’s Terms of Service, a link to which appeared on the Defendant’s website.

The court determined that the Arbitration Agreement was not valid because the Plaintiff did not have actual or constructive notice of the agreement.

The Defendant had contended that the continued use of the website by visitors constituted acceptance of the terms of service contained in the link on the website.

According to the Opinion, the Plaintiff denied ever seeing the terms at issue or clicking the link to the terms of the Arbitration Agreement. As such, the Plaintiff asserted that there was no valid contract because he was never aware of the Arbitration Agreement since he never read, reviewed, or opened the Terms of Service.

In ruling in favor of the Plaintiff, the court noted that the Defendant’s Terms of Service do not require or allow users to ‘signed’ the Terms of Service, thereby calling into question whether or to the Plaintiff ever saw the Terms of Service at issue. The court additionally found that the link itself to the Terms of Service was not sufficiently conspicuous.

The court also noted that the Defendant failed to have an “explicit textual notice” informing visitors to the site that the continued use of the website constituted acceptance of the terms. Here, visitors to the website had to scroll past numerous sections of content to even reach a footer that contained the link to the terms of service. Once a visitor got to that area of the website, the link at issue was one of over forty other links in the footer. As such, the court found that the link at issue and/or the Terms of Service themselves, were not reasonably conspicuous.

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

Source: Article – “Arbitration Agreement Linked On Healthcare Website Isn’t Binding, Fed. Judge Rules,” By Riley Brennan of the Pennsylvania Law Weekly (Feb. 28, 2025).

Source of image:  Photo by Christin Hume on www.unsplash.com.

PLEASE CONSIDER REGISTERING TO ATTEND THIS UPCOMING CLE LIVE OR VIRTUALLY

 I thank Harris Bock for inviting me to present at his famous annual CLE this year.

I will be presenting an update on notable court decisions and trends in Pennsylvania personal injury litigation matters over the past year or so as highlighted on my Tort Talk Blog (www.TortTalk.com).

Need CLE credits?

Please consider registering for this seminar at which you can attend via Zoom or live and in-person in Philadelphia on April 24, 2025.

Thanks for considering -- hope to see you there.

 

Medical Battery Claim Dismissed From Medical Malpractice Case

In the case of Herr v. Myers, No. 30007 of 2023, C.A. (C.P. Lawr. Co. Dec. 4, 2024 Hodge, J.), the court sustained various Preliminary Objections asserted by medical malpractice Defendants.

In this case, the Plaintiff sued certain medical providers under a claim of medical battery arising from post-surgical home health care. According to the Plaintiff, a registered nurse removed his post-surgical wound vac contrary to the instructions of his physicians. The Plaintiff alleged that this removal of the post-surgical wound vac caused complications that required additional treatment and surgery.

The Plaintiff sued the registered nurse and her employer for negligence in medical battery. The Defendants responded with Preliminary Objections, asserting in part, that the Plaintiff’s claims for medical battery was legally insufficient because the Medical Care Availability and Reduction of Error Act (MCARE Act) did not provide a cause of action for medical battery against nurses, who are not responsible for obtaining informed consent. The Defendants also objected to the Plaintiff’s claim for punitive damages.

The court agreed that a nurse is excluded from the definition of a “healthcare provider” who must obtain a patient’s informed consent under both the common law and the MCARE Act.

However, the court noted that the removal of a wound vac did not constitute a surgical procedure and that the wound vac was not classified as a surgical device.

The court also noted that the Defendant healthcare provider who removed the wound vac was a registered nurse rather than a physician or a surgeon and that the registered nurse was, therefore, not required to obtain informed consent when providing routine medical treatment.

Accordingly, the court sustained the Defendants’ Preliminary Objections regarding Plaintiff’s claim for medical battery and struck this claim from the Complaint.

The court also found that the Plaintiff’s claims for punitive damages were legal insufficient as the Plaintiff’s Complaint only stated facts sufficient to assert a claim of negligence. The court found that the alleged facts were not sufficient to demonstrate a level of recklessness necessary to support an award of punitive damages. As such, the punitive damages claims was also stricken.

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


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

You've Got To Know When To Hold 'Em, Know When to Fold 'Em

In the case of Dhaduk v. Patel, No. 2024-CV-5196 (C.P. Lacka. Co. March 31, 2025 Nealon, J.), the court granted demurrers against a Plaintiff’s claim in a case arising out of a neurologist and his wife who sued an internist seeking to recover $700,000.00 for gambling losses that allegedly occurred at a Florida casino.

The Plaintiffs allege that the neurologist agreed to play blackjack on behalf of the internist with the express understanding that the internist would be responsible for any resulting gambling losses suffered by the neurologist in the process. The Plaintiffs claimed that the internist had not reimbursed the neurologist for $200,000.00 for chips that the neurologist purchased and lost and for an additional $500,000.00 that the neurologist obtained from his casino line of credit and ultimately lost playing blackjack.

According to the Opinion, the Defendant doctor filed demurrers to the Plaintiff's claims of breach of contract, promissory estoppel, fraud, and unjust enrichment. 

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a lengthy Opinion outlining the current status of the law on these types of claims in the context of request for payment of gambling indebtedness.

Judge Nealon noted that, unlike other states with comparable statutes barring the collection of gambling debts and voiding any contracts for the payment of gambling indebtedness, the Pennsylvania legislature has never amended the Pennsylvania prohibitory statute in order to restrict its debt collection ban to illegal gambling or to create an exception for debts resulting from lawful gambling activities. 

Judge Nealon confirmed that the law in Pennsylvania remains that gambling debts between private individuals are uncollectible and that any related contracts regarding gambling are void.

As such, based upon the plain language of the applicable Pennsylvania statute, as well as a review of Florida’s corresponding statute, the court ruled that the Defendant could not be found liable in this case. Accordingly, the Defendant’s demurrers to all of the claims asserted by the Plaintiff were sustained.

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

Source of image: Photo by Anna Shvets on www.pexels.com.

New Rule Requiring Judges To Be In Courtroom For Jury Selection Goes Into Effect

The Pennsylvania Supreme Court's amendment of the Pennsylvania Rules of Civil Procedure to include a mandate that a trial court judge be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement goes into effect today, April 1, 2025.

This Rule can be found under Pa. R.C.P. 220.3 and can be seen at this LINK.

Here is a LINK to my article on this topic that appeared in the Pennsylvania Lawyer magazine five years ago in a March/April 2020 edition of the magazine.  The article reviews the jurisprudence on the issue back then, which jurisprudence has since led to the current amendment to the Pennsylvania Rules of Civil Procedure regarding voir dire.  The article also reviews the benefits of having a Judge stay on the bench during voir dire, especially for the prospective members of the jury.

Source of image:  Photo by Nothing Ahead on www.pexels.com.

PLEASE SAVE THE DATE FOR THE LACKAWANNA PRO BONO GOLF TOURNAMENT (AND MY CLE AT THE SAME)

 

Allegations of Recklessness Allowed to Stand in a Complaint

In the case of Johnson v. Parderlikes, No. 5920-CV-2023 (C.P. Monroe Co. Jan. 21, 2025 C. Daniel Higgins, Jr., J.), the court overruled a Defendant’s Preliminary Objections against allegations of recklessness in a civil litigation matter.

The court reviewed the current status of the law and noted that, under Pa. R.C.P. 1019(b), allegations regarding malice, intent, knowledge, and other conditions of the mind may be generally alleged.

This court also noted that the Superior Court has concluded that allegations of wanton conduct is a condition of the mind that may be alleged generally. This court also noted that the Superior Court had held that, because allegations of recklessness are synonymous with allegations of wanton and willful misconduct, allegations of recklessness may also be alleged generally.

As such, the court overruled the Defendant’s Preliminary Objections.

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

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

Organizer of Sports Tournament Who Required Attendees To Stay At a Hotel Dismissed as a Defendant in Premises Liability Case

In the case of E.Z. v. JSKLD Hospitality Enterprise, LLC, No. 2-23-CV-835-RJC (W.D. Pa. March 14, 2025 Colville, J.), a federal district court granted a Motion to for Judgment on the Pleadings in favor of a certain Defendant sued by a Plaintiff in a premises liability case.

In this matter, the Plaintiff sued the owner of the hotel where the accident happened along with a Defendant entity that ran ice hockey tournaments and who required the participants in the tournament to stay at the hotel.

The entity that ran the ice hockey tournaments filed a Motion for Judgment on the Pleadings seeking to be dismissed on the grounds that it had no duty to maintain the premises where the accident happened.   

In this matter, the district court reaffirmed the general rule of law that premises liability does not extend to parties who are not in control of the relevant premises. Rather, the premises liability is focused on the relationship between the individual or entity in control of the premises and the business invitee who ventured on the premises.

The court ruled that the Plaintiffs cannot impute a premises liability duty upon a third-party who is not affiliated with the property.

More specifically, the court ruled that the fact that the organizer of the tournament merely place a hotel on an approved list for the attendees of the tournament did not impose a duty on the organizer of the tournament to inspect that hotel. Furthermore, any such alleged duties were entirely duplicative of the duties already imposed upon the hotel operator itself.

The court offered the additional rationale in support of its Motion to Dismiss by asserting that extending duties to persons without control over the property has no social utility and would, instead, reduce the safety incentives for the actual property owner.

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


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

Co-Owner of Premises Not an Indispensable Party to a Slip and Fall Lawsuit Where that Co-Owner Does Not Exercise Control Over the Premises

In the case of Simone v. Alam, No. 35 MAP 2024 (Pa. March 20, 2025) (Op. by Mundy, J.), the Pennsylvania Supreme Court, in a slip and fall concluded that a tenant in common who did not exercise possession or control over the property is not an indispensable party in a premises liability action.

According to the Opinion, the Plaintiff was a resident in a multi-tenant building, who slipped and fell on ice in a common area.

The Plaintiff sued the owner of the premises and asserted that he was responsible for the common areas.

The trial court had dismissed the Plaintiff’s Complaint for failure to join an indispensable party, that being the owner’s brother, who was a co-owner of the property. The trial court had held that all co-owners must be joined in a premises liability action. The Superior Court affirmed.

As noted above, the Pennsylvania Supreme Court reversed. The Supreme Court found that liability in premises liability cases is based upon possession and control, not mere ownership. The court noted that, since the record revealed that the owner who was sued was the sole manager who controlled the property, the owner’s brother was not an indispensable party under the circumstances.

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


I thank the Plaintiff’s attorney, Jacqueline Morgan, as well as Michael W. Landis, of the same law firm of Lowenthal & Abrams, P.C. in Bala Cynwyd, PA for brining this case to my attention.

Court Rejects Forum Non Conveniens Argument Relative to Claims Arising Out of a Stay at a Mexican Resort

In the case of Dent v. Amresorts, L.P., No. 2:24-CV-06354-MAK (E.D. Pa. Jan. 31, 2025 Kearney, J.), the court addressed a Motion to Dismiss a wrongful death claim arising out of a Plaintiff’s death at an all-inclusive resort in Mexico. The Plaintiffs sued the United States owners and managers of the all-inclusive resort for their negligence in ensuring the safety of their guest.

According to the Opinion, prior to traveling to the all-inclusive resort in Mexico owned and operated by the American Defendants, the Plaintiffs allegedly contacted the resort to inquire about its medical services. According to the Plaintiffs, the resort represented that it had a doctor available 24-hours a day, an ambulance located on site, and a staff that was certified in CPR. The resort also claimed that it was located thirty (30) minutes away from the cities of Cancun and Playa del Carmen.

While visiting the resort, the Plaintiff’s husband began to complain of chest pains and requested aspirin. The Plaintiff went to the resort’s clinic and was notified by the on-site physician that the resort did not have any aspirin. The physician went to the Plaintiff’s room and diagnosed the husband as suffering a heart attack. The physician arranged for an ambulance that arrived thirty (30) minutes later.

The ambulance then took the Plaintiff’s husband to a private hospital an hour away.

Then, the hospital staff at that hospital demanded that the Plaintiff pay $3,000.00 for her husband to even enter the hospital. The hospital then demanded $41,000.00 to provide medical care and refused to treat the Plaintiff’s husband until that amount was paid. That hospital also refused to transfer the Plaintiff’s husband to a public hospital.

While trying to arrange a wire transfer for the $41,000.00, the Plaintiff’s husband passed away.

The hospital in Mexico then refused to release the Plaintiff’s husband’s body until the Plaintiff paid the $41,000.00 that was demanded. According to the Opinion, that Mexico hospital later billed the Plaintiff’s health insurance company over a $100,000.00 for services that was not performed.

The Plaintiff sued the American Defendants in this case for negligent medical assistance. The Plaintiff more specifically alleged that the Defendants negligently failed to have aspirin or an ambulance on site and negligently transported her husband to a private hospital further away from the public hospitals that were presumably located in Cancun or Playa de Carmen.

The Plaintiffs asserted that the American Defendants knew or should have known that the private hospital would charge guests exorbitant fees before agreeing to render medical care. There were further allegations that the American Defendants profited by sending guests to the hospital that the Plaintiff’s husband was sent to.

The Defendant filed a Motion to Dismiss and asserted that the Plaintiff had failed to name necessary parties, including hotel manager, the on-site physician, the ambulance company, the EMTs, and the private hospital and its staff.

The Defendants further sought to dismiss the case under a forum non conveniens argument, arguing that the case would be more appropriately heard in Mexico.

The court denied that the Defendants’ Motion to Dismiss and found that the Plaintiff did not fail to join indispensable parties. The court found that the parties suggested by the named Defendants were not necessary to resolve the Plaintiff’s claims and that the Defendants did not provide any explanation as to why those other proposed Defendants would be required to be a part of this case.

The court additionally emphasized that the Plaintiff was not alleging a medical negligence claim but rather, was focusing on an alleged managerial and supervisory negligence claims unrelated to the private hospital’s medical care.

The court further held that the Defendants had failed to show why the case should be dismissed under the doctrine of forum non conveniens. The court found that the Defendants did not demonstrate the availability of an alternative forum as they had not shown that they were subject to service of process in Mexico or that they would consent to settle service.

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


Source: The Legal Intelligencer Federal Case Alert, www.Law.com (Feb. 20, 2025).

Superior Court Addresses When Auto Insurance Carrier Must Present Insured With New UIM Coverage Selection Forms

In the case of Goodville Mut. Cas. Co. v. McNear, No. 861 MDA 2023 (Pa. Super. Feb. 26, 2025 Nichols, J., King, J., and Sullivan, J.), the court affirmed a trial court decision that an insurance company was not obligated to obtain new UIM coverage selection forms whenever an insured added vehicles to their policy.

According to the Opinion, back in 2012, the insured initially signed an election form for less than full UIM coverage. More specifically, the insured selected benefits of $50,000.00 per person, $100,000.00 per accident stacked across three (3) vehicles covered by the policy.

The insured then renewed their policy ever six (6) months and, between 2012 and 2018, the added and removed vehicles, with policy covering as many as four (4) and as few as two (2) vehicles.

The carrier did not obtain new limited UIM election forms whenever the insureds added vehicles to the policy. The court also noted that the insureds never affirmatively requested any changes to their benefits.

By the year 2018, the insured’s policy again covered three (3) vehicles. In 2018, one of the insureds was involved in an accident.

The insureds covered the policy limits from the tortfeasor’s vehicle. The insured then filed a UIM claim. The carrier paid the UIM benefits of $50,000.00 stacked on the three (3) vehicles covered on the policy.

The insured disputed the amount paid and asserted that the addition of vehicles to their policy constituted “new purchases” coverage which required the carrier to obtain new UIM elections each time. The Plaintiffs attempted to assert that, because the carrier failed to obtain new UIM election forms, the carrier should be forced to pay full UIM benefits up to the bodily injury limits of their policy, i.e., $250,000.00 stacked across three (3) vehicles, or $750,000.00.

The carrier rejected that claim and commenced this declaratory judgment action. 

As noted, the Superior Court affirmed the trial court’s decision rejecting the Plaintiff’s arguments. The Pennsylvania Superior Court noted that 75 Pa. C.S.A. §1734 requires only that the carrier “issue” UIM coverage in the amount selected by a named insured in writing signed by a named insured.

The court also noted that 75 Pa. C.S.A. §1791 permits the carrier to rely upon the elections and notices regarding the availability of UIM benefits at the time of the application for original coverage.

Here, because it was undisputed that the insured had completed a “sign-down” form selecting limited UIM coverage, and given that neither named insured on the policy affirmatively reflected any change, in writing, to the UIM coverage, and given that the insureds did not object to any alleged defects in the §1791 notices they received at the time the insured applied for the coverage, the appellate court ruled that the original “sign-down” form remained effective at the time the Plaintiff was involved in the subject accident.

The court additionally noted that, pursuant to §1791, the insurance company was under no obligation to provide additional notices regarding the limited UIM benefits the insured had originally selected. In the end, the court ruled that, once the insured elected limited UIM benefits when applying for the original policy, the insurance company was entitled to presume that the insured selection remained effective until affirmatively changed by a named insured.

Accordingly, the Superior Court affirmed the entry of a declaratory judgment in favor of the carrier.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (March 18, 2025).

PLEASE SAVE THE DATE -- UPCOMING CLE PRESENTED BY HARRIS BOCK, ESQ. AND DISPUTE RESOLUTION INSTITUTE

 I thank Harris Bock for inviting me to present at his famous annual CLE this year.

I will be presenting an update on notable court decisions and trends in Pennsylvania personal injury litigation matters over the past year or so as highlighted on my Tort Talk Blog (www.TortTalk.com).

Need CLE credits?

Please consider registering for this seminar at which you can attend via Zoom or live and in-person in Philadelphia on April 24, 2025.

Thanks for considering -- hope to see you there.

 

Federal Court Addresses Jurisdiction Over Claims of Defamation Over the Internet

In the case of Rhodes v. Azeff, No. 2:22-CV-00101-WSH (W.D. Pa. Jan. 29, 2025 Hardy, J.), the court addressed issues of personal jurisdiction that were based upon alleged defamatory statements that were published online.

In this case, the court granted a Defendant’s Motion to Dismiss this case for lack of personal jurisdiction and also granted the Motion to Dismiss the counterclaims.

In this decision, the court provided an excellent overview as to the standard of review relative to the issue of personal jurisdiction over a Defendant.

The court reiterated Third Circuit law that publishing statements on the internet does not subject the author to personal jurisdiction anywhere in the world from which a user could access the internet.

The court noted that an out-of-state person does not expressly target Pennsylvania nearly by publishing statements on the internet that are accessible from Pennsylvania.

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


I send thanks to Attorney Thomas McDonnell of the Pittsburgh office of the Summers, McDonnell, Hudak, Guthrie & Rauch, P.C. law firm for bringing this case to my attention.

Federal Court Addresses Section 1983 and Whistleblower Law Issues in Employment Law Case

In the case of Krug v. Bloomsburg University, No. 4:18-CV-1669 (M.D. Pa. March 11, 2025 Wilson, J.), the court denied the Defendant’s Motion for Judgment as a matter of law and a new trial following the entry of a verdict in favor of the Plaintiff in a §1983, Title VII, Title IX, Whistleblower Law and PHRC case.

According to the Opinion, the Plaintiff, a former Bloomburg University Dean, brought a lawsuit claiming that he faced retaliation and was fired for helping an administrative assistant file a sexual harassment report against another employee of the school. The Plaintiff prevailed at trial and the motions at issue followed.

After reviewing the pertinent law, Judge Wilson denied the motions.

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


I send thanks to Attorney Barry Dyller, Esquire of the Wilkes-Barre, PA law firm of Dyller & Solomon, LLC for bringing this case to my attention.

Pennsylvania Supreme Court Rules that NJ Transit is Entitled to Sovereign Immunity

In the case of Galette v. New Jersey Transit, No. 4 EAP 2024 (Pa. March 12, 2025) (Op. by Brobson, J.), the Pennsylvania Supreme Court addressed a denial of a Motion to Dismiss filed by Defendant, New Jersey Transit, based upon a claim of interstate sovereign immunity.

According to the Opinion, the Plaintiff commenced a lawsuit against certain Defendants that included New Jersey Transit in the Court of Common Pleas of Philadelphia County.

The Plaintiff alleged that he was injured when a vehicle he was in was struck by a New Jersey Transit vehicle during an accident that occurred in Philadelphia.

After the lawsuit was filed, New Jersey Transit, as an instrumentality of the State of New Jersey, filed a Motion to Dismiss the suit and invoked interstate sovereign immunity.

The trial court denied the motion. On appeal to the Superior Court, the Superior Court affirmed the trial court’s decision after finding that New Jersey Transit was not instrumentality or arm of the State of New Jersey and, therefore, was not entitled to sovereign immunity protections.

The Pennsylvania Supreme Court reversed and found that New Jersey Transit was indeed an arm of the State of New Jersey and, therefore, an instrumentality of that state. The court noted the statutory classification of New Jersey Transit as an instrumentality of the State of New Jersey, the degree of control that the state exercised over New Jersey transit, and the Defendant’s core function of providing public transportation, which is a governmental function.

The case was remanded for further proceedings.

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


I send thanks to Attorney Michael Cognetti and Kristin Mutzig for bringing this case to my attention.

SAVE THE DATE FOR THE LACKAWANNA PRO BONO GOLF TOURNAMENT (AND MY CLE AT THE SAME)

 

Court Addresses Proper Pleading of Negligent Entrustment Claim in a Motor Vehicle Accident Case

In the case of Uslu v. Evans, No. 24-CV-5482 (E.D. Pa. Jan. 31, 2025 Sitarski, Mag. J.), the court granted a Motion to Dismiss a negligent entrustment claim in a motor vehicle accident case.

In this case, the court provided a thorough review of the current status of the law on the proper pleading of a negligent entrustment claim.   

The court noted that a Plaintiff may not assume that any entrustment of a vehicle was negligent. Rather, a Complaint must allege specific facts showing that, at the time the vehicle was entrusted to the driver, the Defendant vehicle owner knew, or reasonably should have known, that the driver was incapable of safely operating the vehicle or was otherwise unlikely to do so.

The court found that the allegations in the Plaintiff’s Complaint in this case were generic. The court otherwise noted that whether or not a Defendant concedes vicarious liability for negligent entrustment has nothing to do with whether the claim was properly pled.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order in the case 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.

Source of image:  Photo by Thirdman on www.pexels.com.

NEED CLE CREDITS? CHECK OUT THIS UPCOMING EVENT (LIVE AND VIRTUAL)

I thank Harris Bock for inviting me to present at his famous annual CLE this year.

I will be presenting an update on notable court decisions and trends in Pennsylvania personal injury litigation matters over the past year or so as highlighted on my Tort Talk Blog (www.TortTalk.com).

Need CLE credits?

Please consider registering for this seminar at which you can attend via Zoom or live and in-person in Philadelphia on April 24, 2025.

Thanks for considering -- hope to see you there.

 

Link To Decision Corrected for Yesterday's Post: Court Rules that Plaintiff Can't Wing It In Terms of Expert Testimony

The Link to the court decision in yesterday's post has been fixed.  Sorry about that error.  You can view yesterday's Tort Talk post here at this LINK and click the corrected Link to the case therein.

Thanks for reading Tort Talk.

Court Rules That Plaintiff Can't Wing It In Terms of Expert Testimony

In the case of Boruch v. Catty Corner Neighborhood Pub & Pie, 2025 Pa. D. & C. Dec. Lexis 6 (C.P. Leh. Co. Jan. 2, 2025 Reichley, J.), the court granted summary judgment in an alleged food poisoning case involving Buffalo Wings.

In this case, the court noted that the Plaintiff’s expert’s report only addressed the fact of the happening of the alleged food poisoning and did not contain a causation opinion linking the Plaintiff’s illness to the Plaintiff’s consuming the Defendant’s food.

The court recognized that, absent an obvious causal relationship, a personal injury Plaintiff must have expert testimony to establish causation. 

The court generally agreed that such an obvious relationship can arise from an immediate and direct injury or as a natural probable result following alleged negligence.

However, the court found that becoming ill several hours after consuming food is not such a relationship of cause and effect as noted above. Here, the court noted that the causal connection would require guesswork and/or conjecture on the part of a jury.

Given the failures of the Plaintiff’s expert report, summary judgment was granted.

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 Sergio Arreola on www.pexels.com.

Court Denies Carrier's Motion For Summary Judgment on Residency Issue in Fire Loss Coverage Claim

In the case of Jackson v. Spinnaker Ins. Co., No. 2:22-CV-012244-NBF (W.D. Pa. Jan. 28, 2025 Fischer, J.), the court addressed a Motion for Summary Judgment filed by the defendant insurance carrier against claim for breach of contract and bad faith asserted by the Plaintiff relative to an homeowner’s policy and a fire loss. The court granted the defense motion as to the Plaintiff’s claim of bad faith but otherwise denied the motion.

The central question in this case was whether the Defendant insurance company had wrongfully refused to pay coverage for losses sustained by the Plaintiff’s after the Plaintiff's property was damaged in a fire.

The Defendant carrier had denied coverage on the grounds that the property was not the Plaintiff’s “residence,” and that the policy was void due to the Plaintiff’s material misrepresentation during the defense investigation. 

More specifically, the carrier asserted that the carrier falsely represented that the property was his primary residence and that it was not vacant and unoccupied. The Defendant carrier noted that the property lacked any electricity of sewer service.

The court denied the Motion for Summary Judgment on the breach of contract claims after finding, in part, that the policy in question did not restrict coverage to the Plaintiff’s primary residence. Rather, the court found that the policy expressly insured the identified property.

The court held that there was an issue of material fact as to whether or not the property was the Plaintiff’s residence. The Plaintiff had noted that he was sporadically sleeping at the property while completing renovations.

The court also found that the Defendant carrier had failed to establish that the Plaintiff made any statements regarding his residence at the property with knowledge of their alleged falsity or under an alleged deliberate intent to deceive.

The court otherwise denied the Defendant carrier’s Motion for Summary Judgment on the bad faith claim after finding that the Defendant had a reasonable basis for denying coverage.

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


Source: The Legal Intelligencer Federal Case Alert, www.Law.com (Feb. 20, 2025).

Source of image:  Photo by Andrew Gaines on www.unsplash.com.