Judge Nealon of Lackawanna County Reviews the Law on Wrongful Discharge Claim Under Medical Marijuana Act

In the case of Mauger v. Scranton Hospital Company, LLC, No. 2023-CV-2381 (C.P. Lacka. Co. Aug. 5, 2026 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a detailed Opinion outlining the law surrounding a cause of action for wrongful discharge as a tort claim.

This matter arose out a situation involving a hospital nurse who filed suit against his former hospital employer asserting a single cause of action for wrongful discharge.

Judge Nealon's Opinion provides a thorough review of the law regarding an employee's use of medical marijuana any impact of the need for such medication on that person's employment status. 

The Plaintiff cited to the Medical Marijuana Act, which, in part, prohibits an employer from discharging or otherwise discriminating or retaliating against an employee based upon the employee’s status as a certified medical marijuana user. The Plaintiff alleged that he was terminated by the hospital based upon a drug screen test that was positive for marijuana that was due to his prescribed use of medical marijuana.

The Plaintiff was later reinstated by the hospital following the filing of a union grievance. However, the Plaintiff subsequent resigned from his position allegedly due to the constant micromanagement and correction by a supervisor.  The Plaintiff later filed suit for wrongful discharge.

The issues in this matter came before the court on a Motion for Summary Judgment filed by the hospital.

Given the presence of various issues of fact before the court, the hospital’s Motion for Summary Judgment was denied with respect to the nurse’s wrongful discharge claim.

However, the court did grant the hospital’s Motion for Summary Judgment relative to claims of a hostile work environment, and relative to claims of constructive discharge.

The court otherwise also granted the hospital's Motion for Summary Judgment relative to the nurse’s claims for punitive damages and for counsel fees.

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

Source of image:  Photo by Budding on www.unsplash.com.

Court Addresses Various Breach of Contract and Bad Faith Allegations in a First Party Medical Benefits Case

In the case of Castellani v. Travelers Ins. Co., No. 2025-CV-3425 (C.P. Lacka. Co. May 18, 2026 Nealon, J.), the court addressed various issues raised in a claim for breach of contract and bad faith in a first party medical benefits case.

The Plaintiff basically asserted that the insurance company had allegedly fraudulently induced her to purchase medical expense benefits coverage that it allegedly never truly intended to provide. 

The Plaintiff also asserted that the carrier unjustifiably initiated numerous peer reviews by allegedly biased medical professionals in order to allegedly manufacturer a sham basis upon which to deny coverage for allegedly reasonable and necessary treatment.

In additional to suing the carrier for breach of contract and bad faith, the Plaintiff also sued the individual claims representative as well.

The carrier filed Preliminary Objections relative to the Plaintiff’s demand for counsel fees under §1716 and §1798 of the Motor Vehicle Financial Responsibility Law. 

The carrier also filed Preliminary Objections against the bad faith claim.

The claims representative also filed a demurrer on the claims against that party.

Challenges were also made against the claims under the UTPCPL.

The court granted the demurrer asserted by the claims adjuster after finding that the Plaintiff was not able to demonstrate a duty of care owed to the claims adjuster to the insured so as to expose the adjuster to individual tort liability.

The court otherwise found that the Plaintiff had stated a valid cause of action against the carrier for bad faith. The court also found that the claims were not barred by the gist of the action doctrine. The court additionally found that the economic loss doctrine did not preclude the tort claims asserted by the Plaintiff.

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

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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).

Court Rules That Seasoned Federal Middle District Attorneys Can Expect Hourly Rates of $375 Per Hour For Attorney's Fees Requests

In the case of Holmes v. American Homepatient, Inc., No. 4:21-CV-01683 (M.D. Pa. Jan. 28, 2025 Brann, C.J.), the court granted, in part, a Plaintiff’s Motions for Attorney’s Fees Under 42 U.S.C. §1988.

In his decision, Chief Judge Brann reviewed a Plaintiff’s law firm’s request for $2.45 Million Dollars in attorney’s fees and allowed for such fees but cut down the amount requested to just over $250,000.00. In coming to amount of fees awarded, the court reduced the hourly rates pled and the hours logged.

This attorney’s fees request came after the Plaintiff prevailed in a hostile work environment case against her former employer. According to the below cited article on this case, while the Plaintiff had originally secured a verdict that included $20 million dollars in punitive damages and $500,000.00 in compensatory damages, in another, previous decision rendered in this case, the court subsequently reduced that verdict to $1 million dollars.

After reviewing attorney's fees awards in the Federal Middle District Court of Pennsylvania for the past five (5) years, Chief Judge Matthew W. Brann determined in this matter that the district court regularly awarded attorney fee rates ranging from $100.00 to $375.00 depending upon skill, experience, the complexity of the case, and other factors.

Chief Judge Matthew W. Brann
M.D.Pa.

In this case, finding that the Plaintiff’s lead attorneys, who have been practicing for twenty-eight (28) years and twenty-four (24) years respectively, the court awarded those attorneys hourly rates of $375.00 per hour. The lesser involved attorneys with lesser experience were awarded hourly rates of $300.00 per hour and $250.00 per hour. The court also reduced the paralegal hourly rates down to $150.00 per hour and $115.00 per hour, based upon the factors noted.

The court otherwise cut down purported travel time and other hours of work on post-trial motions. Chief Judge Brann noted that many of the post-trial motions were not complex and did not propose novel questions.

The court also agreed with the Defendant’s argument that, overall, the fees requested should be slashed by 5% because of the Plaintiffs’ attorneys’ use of quarter-hour and half-hour increments for billing.

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


Source: Article – “Judge Tanks Prevailing Pittsburgh Attorneys’ $2.45M Fee Request to $250K,” by Riley Brennan, The Legal Intelligencer (Jan. 29, 2025).

Source of top image:  Photo by Towfiqu Barbhuiya on www.pexels.com.

$892.50 Ruled a Reasonable Hourly Rate For an Attorney With More than 25 Years Experience

In the case of Donofrio v. IKEA, No. 2:19-CV-01286-AB (E.D. Pa. July 22, 2024 Brody, J.), the court ordered a Defendant to pay on a sanctions motion filed over allegations of spoliation of evidence due to the Defendant’s failure to implement litigation holds to preserve emails and other documentation pertinent to the case.

In this decision, the court awarded $566,296.89 in fees against IKEA for the alleged spoliation of evidence.

According to the Opinion, various Plaintiff’s attorneys representing parties in the case had requested sanctions at an hourly rate of $960.00 per hour for one (1) attorney, $900.00 per hour for another attorney, and $860.00 per hour for another attorney.

IKEA had requested the court to set the hourly rate at no more than $715.00 per hour for the Plaintiff’s attorneys.

For support of its attorney’s fee award, this court cited to the U.S. Court of Appeals for the Third Circuit’s Endorsement of the Fee Schedule promulgated by Community Legal Services of Philadelphia. According to a 2023 Fee Schedule under that promulgation, an hourly rate of $735-$850 was set for attorneys with more than 25 years of experience. For attorneys with experience between 21 and 25 years, the schedule listed a range of $630-$715 per hour. 

In its decision in this case, the court adjusted these numbers upwards by 5% to account for inflation which resulted in hour rates of $771.75 and $892.50 for attorneys with 25 years or more of experience, and $661.50-$750.75 for attorneys with 21-25 years of experience.

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


Source: Article – “Pa. Federal Judge Orders Ogletree Client IKEA To Pay Over $560K For Spoliation Of Evidence.” By Riley Brennan. Pennsylvania Law Weekly (July 24, 2024).

$725 Per Hour Ruled A Reasonable Hourly Rate for Attorney with 30 Years of Experience

In the case of Wexler v. Hawkins, No. 2:19-CV-05760-CMR (E.D. Pa. July 25, 2024 Rufe, J.), a federal district court judge ruled that a solo practitioner’s hourly rate of $725.00 per hour for legal work was reasonable in a case arising out of claims of malicious prosecution allegations against two (2) Philadelphia police officers.

After a successful result at trial, the Plaintiff’s attorney filed a Motion for Attorney’s Fees and Costs. The fees requested equated to $725.00 per hour for this Plaintiff’s attorney who had a background of having practiced for nearly thirty (30) years.

The defense raised objections to the hours reported by the Plaintiff’s attorney. The court largely disagreed with the defense’s objections and only reduced the request for attorney’s fees a bit.

On one of the objections, the court found that the Plaintiff’s attorney’s recording of a total of 16.5 hours working on a twenty-seven (27) page Complaint in which ten (10) federal and state civil causes of actions were asserted, which included legal research, meetings with client and review of other documents was not unreasonable or excessive.

With regards to the objection by the defense that the Plaintiff’s attorney claimed fourteen (14) hours of work preparing the Petition for Attorney’s Fees, the court reduced those hours by 50% to seven (7) hours.

According to the Opinion, the Plaintiff’s attorney’s paralegal was also awarded a total of $15,437.50 in fees, for 123.5 hours at an hourly rate of $125.00.

In so ruling on these attorney's fees and paralegal fees, the court referenced the fee schedule promulgated by Community Legal Services of Philadelphia.

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


Source: Article – “Judge Awards Philadelphia Attorney $263,356.25 In Fees at $725.00 An Hour, Reduces Total Award for Erroneous Entries” By Riley Brennan. Pennsylvania Law Weekly (July 29, 2024).

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

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

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

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

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

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

Photo by Sora Shimazaki on www.pexels.com.

PA Superior Court Rules That 75 Pa.C.S.A. Sections 1716 and 1718 Do Not Support Award of Attorney's Fees in Peer Review Cases

In the case of Turnpaugh Chiropractic Health & Wellness Cr., P.C. v. Erie Ins. Exch., No. 1448 MDA 2021 (Pa. Super. June 8, 2023 Stevens, P.J.E., Bowes, J., McCaffery, J.) (Op. by Stevens, P.J.E.)(Bowes, J, Concurring), the Pennsylvania Superior Court affirmed in part and denied in part a trial court’s entry of judgment in favor of a chiropractor in a first party peer review case.   

In this case, the insurance company appealed a judgment in favor of the chiropractor and an award of attorney’s fees. 

According to the Opinion, the insurance company had repriced the chiropractor’s invoices and referred the chiropractor’s bills to a peer review. 

The Superior Court found that the trial court had erred in allowing the chiropractor’s expert to testify on matters outside the scope of an expert report.

In what may be a case of first impression, the Superior Court additionally found that the trial court had erred in awarding the chiropractor attorney’s fees under §1716 and §1798 because there was no statutory authorization for an award of attorney’s fees when an insurance company invokes the peer review process.   

Anyone wishing to review a copy of this decision may click this LINK. The Concurring Opinion by Judge Bowes can be read HERE.

I thank attorney Candace Edgar of the Camp Hill, PA office of Margolis Edelstein for bringing this case to my attention.

Source of image: Photo by Kenny Eliason on www.unsplash.com.

Superior Court Affirms That Statute of Limitations Defense Can Be Reviewed Under Preliminary Objections (PO's) Where No PO's Filed to PO's (Non-Precedential)

In the case of Weisberg v. Bansley, No. 695 MDA 2021 (Pa. Super. Feb. 14, 2023 Bowes, J., King, J., and Stevens, P.J.E.) (Op. by King, J.) (non-precedential), the Pennsylvania Superior Court affirmed a ruling by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in which the trial court sustained Preliminary Objections filed by various Defendants that resulted in the dismissal of the Plaintiff’s Dragonetti Act claims in a dispute between parties over an alleged claims of wrongful use of civil procedures that arose out an earlier legal malpractice suit.

In this case, relative to the statute of limitations defense raised by the Defendants’ Preliminary Objections, the court noted that, generally, a statute of limitations defense is more properly raised as a new matter and not Preliminary Objections. 

However, the Court confirmed that where a Plaintiff fails to file Preliminary Objections to strike a Preliminary Objection based upon a statue of limitations, the trial court may address the issues presented relative to a statute of limitations defense. As such, the Superior Court found that the trial court did not err when it addressed the merits of the statute of limitations issues presented in this case.

The Superior Court also found that the trial court’s calculation of time relative to the statute of limitations defense was also proper.


Anyone wishing to review this non-precedential Opinion from the Pennsylvania Superior Court may click this LINK.

Claims of Gross Negligence Allowed to Proceed in Tractor Trailer Accident Case

In the case of Dragone v. Pew, No. 2:22-CV-00236-GJP (E.D. Pa. Aug. 15, 2022 Pappert, J.), the court denied a Defendant’s Motion to Dismiss but granted, in part, a Motion to Strike in a case involving a motor vehicle accident in which the Plaintiff asserted claims of gross negligence.   

According to the Opinion, the court found that a claim of gross negligence was adequately pled by the Plaintiff where the Plaintiff alleged that the driver operated an overloaded truck at an excessive speed on a busy Schuylkill Expressway and failed to apply the brakes in time prior to the accident despite observing brake lights ahead.   

The court additionally held that the Plaintiff had alleged sufficient facts to move forward with a punitive damages claim where the Plaintiff alleged that the Defendant driver and his employer knew that their conduct posed a risk of harm to others and consciously disregarded those risks.   

However, the court struck the allegations requesting exemplary damages as those allegations were synonymous with the claims of punitive damages.  The court also struck the claim for attorney’s fees as there was no legal basis for the same.   

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

 

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Sept. 8, 2022).   

Doctrine of Forum Non Conveniens Reviewed In Dispute Between Two Plaintiff's Law Firms Over a Substantial Fee

In the case of Fellerman & Ciarimboli Law, PC v. Joseph L. Messa, Jr., & Associates, No. 21-CV-4654 (C.P. Lacka. Co. April 14, 2022 Nealon, J.), the court addressed issues under the doctrine of forum non conveniens.

According to the Opinion, the personal injury law firm Plaintiff in this matter, which maintains offices in Delaware County, Lackawanna County, Luzerne County, Philadelphia County, and New Jersey, commenced a declaratory judgment action against a Philadelphia personal injury law firm seeking a determination regarding the proper method for calculating the Philadelphia firm’s share of attorney’s fees of a little over $2 million dollars that relative to a civil litigation matter.

The counsel fees in dispute were generated from a wrongful death lawsuit that was filed and litigated in Philadelphia County and defended by Philadelphia area attorneys. The underlying case arose from the death of a Philadelphia resident in a Philadelphia accident. The court also noted that the counsel fees were approved by a Philadelphia County judge.

It was also noted that, with regards to the attorney’s fees at issue, the Philadelphia law firm had instituted a separate action against the Plaintiff law firm in Philadelphia County asserting breach of contract, breach of fiduciary duty, unjust enrichment, and other claims.

In this Lackawanna County declaratory judgment case filed by the Plaintiff law firm, the Defendant Philadelphia law firm filed a Petition pursuant to Pa. R.C.P. 1006(d)(1) seeking to transfer venue in this declaratory judgment action to the Court of Common Pleas of Philadelphia County on forum non conveniens grounds.

After reviewing the record before him, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas determined that the records contained sufficient proof that the continued litigation of this declaratory judgment action in Lackawanna County would be unduly burdensome for the Philadelphia law firm and the anticipated witnesses. The court noted that no material witness or any relevant evidence was located in Lackawanna County and that Philadelphia County would provide easier access to the witnesses and other sources of proof.

Based upon the totality of the circumstances, the court found that Lackawanna County is an oppressive forum for the adjudication of this case. As such, the court granted the Petition to Transfer Venue and transferred the case to Philadelphia County.

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

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

ADR Provision in Trampoline Park's Participation Agreement Upheld But Not Provision for Attorney's Fees

In the case of Wearing v. Lyon Tamer, LLC, d/b/a Defy Scranton, No. 20-CV-233 (C.P. Lacka. Co. Jan. 24, 2022 Nealon, J.), the court addressed the validity of an alternative dispute resolution clause contained in a participation agreement signed by the Plaintiff’s mother when the Plaintiff went to the Defendant’s trampoline park.

According to the Opinion, the Plaintiff filed this negligence action against a trampoline park operator for injuries suffered by the Plaintiff while using a trampoline as a minor allegedly without any supervision or oversight.

The Defendant trampoline park operator filed Preliminary Objections. 

With the Preliminary Objections, the Defendant sought to stay this litigation and compel the Plaintiff to submit to mediation and non-binding arbitration in compliance with the participation agreement executed by the Plaintiff’s mother as a condition for the minor to enter and use the trampoline park. 

The Defendant also sought to recover counsel fees and costs under a separate provision in the participation agreement which allowed the Defendant to recover such damages “to the extent permitted by law” in seeking to enforce the mediation and non-binding arbitration provision.

Judge Terrence R. Nealon
Lackawanna County

After reviewing the law of Pennsylvania regarding such agreements and applying the law to the terms of the participation agreement before him, Judge Nealon granted the Preliminary Objections seeking a stay of the tort action given that there was a valid agreement of the parties to participate in alternative dispute resolution. 

However, the court denied the request for attorneys’ fees and costs after finding that the provision in the participation agreement in this regard was unreasonably favorable to the trampoline park operator whose customers had no meaningful choice regarding the acceptance of that provision. The court found that that provision was unenforceable in this regard only due to this procedural and substantive unconscionability.

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

Source:  Photo by Matheus Costa on www.unsplash.com.

Request For Attorney Fees Rejected Relative to Declaratory Judgment Action

In the case of Atain v. Ins. Co. v. Kaz Tire, Inc., No. CV-21-3651 (E.D. Pa. Nov. 16, 2021 Kearney, J.), the court denied an insured’s request for attorney’s fees under the Declaratory Judgment Act in federal court after the insured obtained summary judgment in its favor in a declaratory judgment action regarding coverage under a policy.

The court noted that, under the Declaratory Judgment Act, an insured was compelled to bring a declaratory judgment action to establish the carrier’s duty to defend an action brought by a third party may recover attorney’s fees incurred in the declaratory judgment action if the carrier has refused to defend the action in bad faith.

The court, based upon the record before it, did not find that the carrier’s initial denial of coverage was in bad faith or was otherwise frivolous. As such, the request for the payment of fees and costs in this action in which it appeared to the court that the carrier had properly sought declaratory relief, was denied.

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

I send thanks to Attorney Lee Applebaum of the Philadelphia office of Fineman, Krekstein & Harris for bringing this case to my attention. Attorney Applebaum is the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog which can viewed HERE.

Source of image:  photo by Karolina Grabowska from www.pexels.com.

Federal Court Allows For Attorney's Fees to Plaintiff's Attorney on a Contingency By Figuring Out an Hourly Rate

In the case of King v. Alpha Sigma Tau Nat’l Found. Inc., No. $:20-CV-00778 (M.D. Pa. Dec. 1, 2020 Brann, J.), the court ruled that 28 U.S.C. §1447(c) allowed the Plaintiffs to recover attorney’s fees in a federal court action even when the Plaintiffs were represented on a contingency. 

The court awarded attorney’s fees to the Plaintiff after remanding a case to the state court that the Defendants were found to have improperly removed to the federal court.

This matter arose out of allegations that the Plaintiff’s college age son died during a fraternity rush party.

The court rejected the Defendant’s argument that the language of the statute limited attorney’s fee awards to only those fees that were actually incurred by a party. The Defendants had argued that, since none of the fees were technically charged to the Plaintiff, who was represented on a contingency, the Plaintiff was excluded from recovering any attorney’s fees under the statute. As noted, the court disagreed and pointed to other circuit court decisions allowing Plaintiff to recover attorney’s fees even when they were represented on a contingency.

Notably, the court also reviewed other decisions within the Middle District of Pennsylvania and came to a determination that the reasonable hourly rate for an attorney in this forum, and more particularly in the Williamsport, Pennsylvania area, range from $180.00 to $325.00 per hour, depending upon the skill, expertise, and experience of the attorney working on the case at hand.

In the end, $11,377.75 in attorney’s fees was awarded, as well as additional compensation for money spent on an expert.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 17, 2020).

Award of Attorney's Fees Granted Under 42 Pa.C.S.A. Section 2503

In the case of Mariotti v. Mariotti Building Products, Inc., No. 12-CV-545 (C.P. Lacka. Co. July 23, 2020 Nealon, J.), the court addressed a Motion for Sanctions and a request for the defense for the recovery of counsel fees under 42 Pa. C.S.A. §2503 in a business dispute matter.

The court noted that, under §2503(7) of the Judicial Code, the court has the discretion to award attorney’s fees “as a sanction against another participant for dilatory, obdurate, vexatious conduct during the pendency of a matter.”

It was also noted that, under §2503(9) of the Judicial Code, a court may award attorney’s fees against any party whose conduct was “arbitrary, vexatious, or in bad faith.”

After reviewing the definitions of all of the terms identified in the above Judicial Code provisions, the court found that the Plaintiff’s conduct during the course of the litigation warranted the entry of an award of attorney’s fees. As such, the defense motion in this regard was granted and a hearing was set up for a later date to determine the amount of such award.

This Opinion offers insight on the rarely addressed provisions of the sections noted in terms of request for attorney’s fees based upon improper conduct by an opposing party during the course of a litigation.

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

Claims for Treble Damages and Attorney's Fees Dismissed in PRO Case

In the case of Stoner v. Erie Ins. Exchange, No. 2019 - CV -6978 (C.P. Dauphin Co. June 11, 2020 Cherry, J.), the court granted the carrier’s motion for partial judgment on the pleadings and dismissed a Plaintiff’s claims for treble damages and attorney’s fees in a PRO case.

According to the Opinion, this matter involved a PRO case filed by a chiropractor in Dauphin County. The chiropractor sought the payment of its medical fees from this First Party carrier after the medical benefits were stopped following a peer review. The chiropractor asserted that the peer review process was improperly instituted by the carrier. The Complaint also sought attorney’s fees and treble damages. 

The carrier filed a Partial Motion for Judgment on the Pleadings seeking to dismiss the claims for attorney’s fees and treble damages. The carrier asserted that, as a matter of law, a plaintiff cannot recover treble damages or attorney’s fees based upon the carrier’s decision to implement the peer review process.

The Plaintiff claimed, in part, that such damages were recoverable because he was seeking them based upon the carrier’s conduct before the PRO referral. 

The trial court judge in this Stoner case reviewed other cases on the issues presented and, despite the fact that another judge of the same Dauphin County Bench had previously ruled differently, decided to grant the carrier’s motion and thereby dismissed the claims for treble damages and attorney’s fees.

Anyone wishing to review this decision may click this LINK

I send thanks to Attorney Candace N. Edgar of the Camp Hill, PA office of Margolis Edelstein for bringing this case to my attention.

Judge Williamson of Monroe County Rejects Request for Attorney's Fees in Trip and Fall Matter

In the case of Ezro v. Buck, LP, No. 5279-CV-2019 (C.P. Monroe Co. Oct. 25, 2019 Williamson, J.), the court denied a demurrer asserted by the Defendants in this negligence slip and fall case. However, the court did sustain Preliminary Objections regarding the existence of an agency relationship as well as with respect to the Plaintiff’s claim for attorney fees.

The court granted the Plaintiff leave to file an Amended Complaint to more specifically list Defendants under an agency relationship.

Relative to the claim for attorney’s fees in this trip and fall matter, Judge David J. Williamson confirmed that the American Rule applied in Pennsylvania and generally holds that attorney’s fees are recoverable unless specifically provided by statute or by clear agreement of the parties. No such authorization for an attorney’s fee award was found in this case.

The court did otherwise note that the Plaintiff was entitled to pursue delay damages under Pa. R.C.P. 238(a)(1) and that a decision on the appropriateness of such damages would be reserved until after a verdict has been entered.

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Dec. 3, 2019).

Issues of Fact Preclude Summary Judgment in Fall Down Steps; But Claims for Attorneys Fees Dismissed

In his recent decision in the decision of Gordner v. McIntosh, No. 2017-CV-6468 (C.P. Lacka. Co. July 9, 2018 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied Defendant owners’ Preliminary Objections to the Plaintiff’s Complaint, including a demurrer to the Plaintiff’s negligence cause of action stated in this slip and fall case. 

In addressing the demurrer to the Complaint, the court provided a detailed description of the current status of Pennsylvania law pertaining to slip and fall matters.   In reviewing that law, the court noted that, although there are Pennsylvania cases that stand for the proposition that mere evidence of a highly polished floor, standing alone, is sufficient to sustain a negligence claim, other cases confirm that the manner in which the polish or wax was applied and maintained could give rise to a cause of action for negligence in slip and fall matters.  

The court found that the Plaintiff stated a valid cause of action when the Plaintiff alleged that the landowners’ high gloss treatment of their hardwood stairs amounted to a negligent creation and maintenance of a hazardous condition. The Plaintiff had additionally alleged that the Defendants had failed to provide adequate lighting for the slippery stairs and/or to warn all invitees of the hazardous condition of the stairs.  

The Plaintiffs additionally asserted in the Complaint that one owner stated after the fall that “[w]e usually tell people these stairs are slippery.”  

The court found that, accepting the Plaintiff’s allegations as true as required by the standard of review for a demurrer, the Plaintiff’s Complaint stated a cognizable negligence claim.  

 

The court in this matter otherwise sustained the landowner Defendants’ demurrer to the Plaintiffs’ claim for attorney’s fees given that the Complaint failed to reference any statutory, contractual, or decisional basis for the claim for counsel fees.   As such, the court found that any claim for counsel fees in this tort action is insufficient as a matter of law.  Accordingly, the demurrer to the claim for counsel fees was sustained.

The court also struck the Plaintiff’s specific claims for dollar amounts for eight (8) separate categories of damages as being improper.   Rather, the court noted that a prayer for relief should only indicate whether or not the Plaintiff is demanding compensatory damages in excess of or below the compulsory arbitration limit in the county.  

In the end, the court sustained some of the Defendants’ Preliminary Objections and overruled others.  

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

If you need assistance in resolving your premises liability case by way of a Mediation, please do not hesitate to contact me should I be able to help you bring your case to a close.  Resume and fee schedule available on request.  Thanks.

Pennsylvania Supreme Court Affirms Award of Quantum Meruit Damages in Attorney's Fees Dispute

In the case of Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., No. 7 WAP 2017 (Pa. March 6, 2018 Dougherty, J.), the Pennsylvania Supreme Court ruled that the Superior Court erred in reversing a trial court’s award of quantum meruit damages to a predecessor law firm because the successor counsel received and retained a benefit from predecessor counsel’s work, thereby entitling the predecessor counsel to some payment.  

This matter arose out of a wrongful death lawsuit following a motor vehicle accident.  

The Supreme Court found, in part, that the predecessor counsel had conferred a benefit upon both the client and the successor counsel who later concluded the matter.   It was noted that the predecessor’s work on the litigation contributed towards the settlement eventually negotiated by the successor firm and that the predecessor firm was not paid for that work. 

As such, the court ruled that the predecessor counsel could recover damages in quantum meruit.   The court noted that the circumstances of this case established that the successor counsel received and retained the benefit from the predecessor counsel such that it would be unjust if the predecessor counsel was not provided with some payment.  

Anyone wishing to read this case may click this LINK.

Source:  “Digest of Recent Cases.”  Pennsylvania Law Weekly (March 20, 2018).  

Pennsylvania Supreme Court Rules on Propriety of Attorney's Fees in First Party Benefits Litigation Matters

Tort Talkers may recall that previous summaries of the various court decisions in the case of Doctor’s Choice Physical Medicine and Rehabilitation Center, P.C. v. Travelers Personal Insurance Company, addressing attorney’s fees awarded in a first party benefits peer review process litigation, had been repeatedly reviewed here.

Update: In a December 21, 2015 decision by the Pennsylvania Supreme Court at 146 MAP 2014, the Court addressed the issue of the availability of attorney’s fee awards against insurance companies that have revoked peer review provisions of the Motor Vehicle Financial Responsibility Law.

By way of background, after a bench trial at the trial court level, the Court of Common Pleas entered a verdict in favor of the medical provider, which, initially included an award of attorney’s fees of approximately $39,000.00.  On a later motion, the trial court struck the award of attorney's fees in this context.

On appeal, the Pennsylvania Superior Court reversed the trial court's decision to strike the fee award.

In the latest decision in the case, the Pennsylvania Supreme Court has reversed the Superior Court. In so ruling, the Supreme Court noted that it "remains cognizant of the short comings of the peer-review regime." However, the court left changes to the peer review process to be considered by the Legislature and declined to deviate from the court’s conventional statutory interpretation of the peer review statute at issue.  

Anyone wishing to secure more detail on this decision may click this LINK.


I send thanks to Attorney Tom McDonnell of the Pittsburgh law firm of Summers McDonnell for bringing this decision to my attention.

To review the Tort Talk blog posts on the Superior Court's earlier decision and the trial court's initial decision in this case, please go to Tort Talk at www.TortTalk.com and type in "Doctor's Choice" in the Search Box in the upper right hand column of the blog.