Court Addresses Requirements to Secure Class Certification

In the case McNair v. Pennsylvania-American Water Co., NO. 2024-CV-5834 (C.P. Lacka. Co. July 21, 2026 Nealon, J.), the court addressed a Motion seeking certification of a class comprised of property owners and/or residents of a lake community with respect to claims asserted against a water utility company regarding allegations of public and private nuisance related to the utility allegedly providing water containing excessive levels of manganese for several years.

The court reviewed the law of class certifications under Pa. R.C.P. 1702(2) and 1708(a)(1), and denied the Motion given that the property owners were not able to establish that common questions of law or fact predominate over the multitude of individual issues presented.

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

Source of image:  Photo by Steven A. Johnson on www.pexels.com.

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.

Post-Trial Rulings By Trial Court in MVA Case Affirmed on Appeal

In their non-precedential decision in the case of Major v. Five Star Equipment, Inc., No. 735 MDA 2025 (Pa. Super. June 30, 2026 Panella, P.J.E., King, J., and Lane, J.) (Mem. Op. by King, J.), the Pennsylvania Superior Court affirmed the post-trial rulings issued by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas related to a motor vehicle versus pedestrian accident case.

According to the Opinion, at a bifurcated trial, the jury attributed 75% of the responsibility for the happening of the accident to the Plaintiff and 25% to the Defendant.

On appeal, the Plaintiff challenged portions of the verdict slip and related jury instructions. The Plaintiff also asserted that the trial court had erred prior to trial in granting partial summary judgment on behalf of the Defendant and dismissing the Plaintiff’s claim for recklessness and in excluding post-accident evidence regarding the Defendant driver’s competence. The Plaintiff also argued that the trial court abused its discretion in bifurcating the trial.

Here, the court had bifurcated the trial based upon the fact that, after the parties were given a trial date with a certain number of trial days based on what the parties had advised the Court as to how much trial time was needed, the parties listed additional witnesses which led the court to conclude that it was highly unlikely that the parties would finish the trial within the allocated time period requested. As such, the court bifurcated the trial to avoid unnecessary cost and to facilitate the interests of judicial economy. The trial was bifurcated into liability and damages phases.

The appellate court rejected the Plaintiff’s argument that they were entitled to a new trial on the basis that the trial court had incorrectly bifurcated the case. The appellate court emphasized that the decision whether or not to bifurcate a case is entrusted to the broad discretion of the trial court, which is considered to be in the best position to evaluate the necessity for bifurcation.

Here, after consultation with the parties, the trial court had scheduled five (5) days for trial based upon the parties estimation as to the amount of time they believed the trial would take. Later, at a pre-trial conference, the parties then indicated that they intended to call eleven (11) lay witnesses and nine (9) expert witnesses to testify. The parties further estimated that one of the four days scheduled for trial would be taken up by the jury selection process, the court’s introductory instructions, and counsel’s opening statements.

The trial court had determined that it was highly unlikely that the remaining four (4) days of trial would be sufficient time for all of their testimony, closing arguments, jury instructions and deliberations. The trial court had expressed a concern that it would be forced to declare a mistrial if the trial is not completed within the allotted time. The appellate court agreed with the trial court’s conclusion that the interest of judicial economy and conveniens supported the bifurcation of the case. The appellate court was not swayed by the Plaintiff’s argument that the trial actually ended up only taking three (3) days to complete.

On appeal, the appellate court otherwise agreed with the trial court that the Plaintiff had waived her claim of error with regards to the Verdict slip.  The appellate court otherwise agreed with the trial court that separate questions as to each theory of negligence asserted against the Defendant company were unnecessary given that the trial court’s jury instructions specified and explained all of the theories of negligence involved in the case. The appellate court found that the trial court had repeatedly instructed the jury that, if they found negligence on any of the grounds described during the jury instructions, the jury must find that the Defendant company was negligent.

With regards to the trial court having issued a partial summary judgment against the Plaintiff’s claims of recklessness, the appellate court reviewed the law of punitive damages and, after a review of the trial record, found that the Plaintiff failed to produce any evidence to support the claims of recklessness. As such, the appellate court stated that the trial court did not err in dismissing the Plaintiff’s punitive damages claims whether in terms of the direct actions of the Defendant company or on the basis of vicarious liability.

Based upon the above reasons, the appellate court affirmed all of the trial court’s post-trial rulings.

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

To view the Tort Talk post on Judge Nealon's trial court Opinion and for access to a Link to that Opinion, please click HERE.

Claims Regarding Duty to Provide Safe Drinking Water Flow Through Summary Judgment Motion

In the case of McNair v. Pennsylvania-America Water Co., No. 2024-CV-5834 (C.P. Lacka. Co. June 11, 2026 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Motion for Summary Judgment filed by a water company in a class action suit by residents of a Monroe County lake community in which the Plaintiffs had asserted claims of public nuisance under the safe drinking water statute, private nuisance, and breach of implied contract for failing to provide clean, safe, and reliable water surface to their company.

According to the Opinion, the Plaintiffs asserted that the drinking water supplied by the utility company was chronically tainted with excessive levels of manganese that adversely affected the color, case, smell, and safety of the water.

The utility company filed a Motion for Summary Judgment on several grounds.

Relative to the request for the dismissal of certain nuisance claims based upon the statute of limitations, the court ruled that there were issues of fact under the discovery rule to the statute of limitations that prevented the entry of summary judgment in that regard.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon also found that the record before the court confirmed that the Plaintiff’s claims for breach of the utility’s implied duty to provide safe drinking water should be allowed to proceed to the jury.

Relative to the utility’s argument that the Plaintiff’s claims failed due to the Plaintiff’s failure to exhaust their administrative remedies, the court found that the doctrine of exhaustion of administrative remedies only applies where the available administrative remedy is adequate and complete with respect to the alleged harm sustained and the specific relief requested. 

Here, the court found that, given that the resident’s public nuisance claims sought to recover compensatory and punitive damages for the diminution of the value of their property, the loss of the use and enjoyment of the land, and the inconvenience, discomfort and annoyance that they have endured, the circumstances did not meet the elements of the doctrine given that the appropriate state administrative agency had no authority to award damages. 

As such, the court found that residents were not required to first exhaust their available administrative procedures before filing suit in a court of law.

In the end, the court denied the utility’s Motion for Summary Judgment.

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

Source of top image:  Photo by Wallace Chuck on www.pexels.com.

Medical Malpractice Case Transferred Under Doctrine of Forum Non Conveniens

In the case of Gearhart v. Geisinger Health, No. 2025-CV-44 (C.P. Lacka. Co. June 5, 2026 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted the Defendants’ Motion to Transfer Venue of this case from Lackawanna County to Mifflin County under the doctrine of forum non conveniens.  

According to the Opinion in this medical malpractice case, Mifflin County Plaintiffs commenced a suit against a Mifflin County podiatrist and nurse practitioner, a Union County physician assistant, a Mifflin County hospital, and their employer and corporate parent, which were both headquartered in Montour County. 

After reviewing the evidence presented to the court, Judge Nealon noted that a trial of this matter in Lackawanna County, which is more than 130 miles from the sites of the primary treatment locations and associated evidence would be unduly burdensome for the individual Defendants and would impose considerable hardships relating to their professional and family responsibilities.  

The court also held that Mifflin County would provide far easier access to material witnesses possessing pertinent information and other sources of proof regarding the claimed negligence and damages.  

Accordingly, based upon a totality of the circumstances, the court found Lackawanna County was an oppressive forum for the continued litigation of the malpractice action.  Consequently, the court granted the Defendants’ Motion to Transfer the Case to the Court of Common Pleas of Mifflin County under Pa. R.C.P. 1006(d)(1).  

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

Article: Remedies for Late Payment of Settlement Funds

The below article of mine recently appeared in the June 18, 2026 edition of the Pennsylvania Law Weekly and is republished here with permission.

Remedies for Late Payment of Settlement Funds

June 18, 2026

By

Daniel E. Cummins


In most instances, once a civil litigation matter is settled, the defendant’s liability insurance carrier promptly issues payment. In this regard, the carrier has an interest in both protecting its insured in this regard and in closing out another file. However, in rare instances, a settlement payment may be delayed for an inordinate period of time for one reason or another.

When a settlement payment is delayed, plaintiffs have options to compel the production of the settlement payment or to secure sanctions against the defendant relative to the delay. Most settlement agreements themselves outline when payment is due. And, whether or not there is such a provision in a release regarding the timing of a payment, plaintiffs also have the benefit of the mandate under Pa.R.C.P. 229.1, which requires that the settlement payment be “delivered … within 20 calendar days from the defendant’s receipt of an executed release.”

In terms of the status of Pennsylvania law in this regard, it is often said by many that, if one needs a thorough overview of the current status of a particular area of the law, one should look for a decision on the issue written by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas. This advice holds true with Nealon’s recent opinion in the case of Hill v. Riverside Healthcare and Rehabilitation Center, No. 2023-CV-3399 (C.P. Lacka. Co. May 22, 2026 Nealon, J.), in which Nealon addressed the topic of remedies available to a plaintiff under Pa.R.C.P. 229.1 where a defendant fails to produce a settlement payment in a timely fashion after the receipt of an executed release.

According to the opinion, this matter involved a professional liability action against the health care and rehab center. The plaintiff’s decedent’s had been a patient at the defendant’s facility. The defendant facility owner at issue in this case eventually became insolvent and filed for bankruptcy.

During the course of this litigation, the parties agreed to participate in a settlement conference with a private mediator. Prior to the mediation, the defendant’s attorney confirmed in writing that the parent and affiliate entities of the defendant were insolvent and in bankruptcy proceedings. Defense counsel also confirmed that, as such, the defendant would not be able to satisfy the first $75,000 of any settlement as that represented the amount of the defendant’s deductible, but that any obligation above that amount would be covered by the defendant’s liability insurance policy.

As a result of the mediation, the parties reached a settlement agreement for a net payment of $175,000. The total amount of the party’s settlement was actually $250,000 but the plaintiff agreed to waive the defendant’s payment of its $75,000 deductible. The net settlement payment of $175,000 was to be paid entirely by the defendant’s liability insurance carrier.

The court’s opinion emphasized that the insurance company’s adjuster had agreed to the settlement without any indication of any coverage issues existing between the defendant and its insurance company.

After the settlement, the plaintiff proceeded to court on a petition for court approval of the settlement in this death case. The court granted the Plaintiff’s petition and approved the settlement. The parties then executed the settlement agreement.

Plaintiff’s counsel then sent the signed release, the court order approving the settlement and other closing documents to the defendant’s counsel and requested the settlement payment.

In his opinion in this Hill case, Nealon emphasized that noticeably absent from the settlement agreement was any indication or even a suggestion that a coverage issue may exist between the defendant and its insurance company. Nor was there any reference that any such coverage issue needed to be resolved before the plaintiff would receive the settlement payment.

Thereafter, when plaintiff’s counsel wrote for the status of the settlement check, defense counsel indicated that there was some issue that the adjuster had to work out. Again, there was no reference made to any insurance coverage issues.

The opinion of the court noted facts that showed that the plaintiff’s attorney showed great patience and was more than accommodating in his repeated efforts to secure the production of the settlement check over the next several months. After several months then went by with no production of the settlement check, counsel for the plaintiff filed a motion under Pa.R.C.P. 229.1 relative to the defendant’s failure to produce the settlement check in a timely fashion after the production of the executed release.

Judge Nealon reviewed Pennsylvania Rule of Civil Procedure 229.1 which governs the prompt delivery of settlement funds within 20 days of the receipt of an executed release by the defendant.

The rule otherwise provides that, if court approval of the settlement is required, the mandated 20-day time period under Rule 229.1 does not become operative until the settlement is so approved.

Nealon noted that, under Rule 229.1, if a defendant fails to timely deliver settlement funds, a plaintiff has the right to seek either of two remedies. First, a plaintiff can seek to invalidate the settlement agreement and request that the matter return to the trial list. Second, a plaintiff can seek certain sanctions against the defendant.

The court in Hill noted that, if the plaintiff opt to pursue sanctions against the defendant, Rule 229.1(e) directs the plaintiff to file an affidavit “attesting to nonpayment,” and to submit six items for the court’s review with the affidavit. Among the documents to be submitted with the affidavit are a copy of “any document evidencing the terms of the settlement agreement,” a copy of “the executed release,” a copy of “a receipt reflecting delivery of the executed release,” a certification by counsel “the applicable interest rate,” and “that the affidavit and accompanying documents have been served on the attorneys for all interested parties.” Lastly, also attached to the affidavit should be “the form of order prescribed by subdivision (h)” of Pa.R.C.P. 229.1 for execution by the court.

Nealon additionally noted that the type of sanctions allowed in this instance are spelled out under Pa.R.C.P. 229.1. More specifically, under Rule 229.1(g), if the court determines that a defendant has failed to deliver the settlement funds within 20 days and there is no material dispute as to the terms of the settlement or the terms of the release, the court “shall impose sanctions in the form of interests calculated at the rate equal to the prime rate as listed in the First Edition of the Wall Street Journal published for each calendar year for which interest is awarded, plus 1%, not compounded, running from the 21st day to the date of delivery of the settlement funds, together with reasonable attorney fees incurred in the preparation of the affidavit.”

Nealon otherwise ruled in the Hill case that the fact that the insurance company’s noncompliance with the payment requirement may be attributable to a post-settlement assertion of a potential coverage issue did not warrant the denial of the plaintiff’s request for sanctions relative to the failure of the carrier to produce the settlement check within 20 days of the production of the executed release.
Conclusion

The Hill decision written by Judge Nealon provides thorough guidance on the steps to take in securing sanctions relative to a late payment of settlement funds required by an executed release.

As evidenced by plaintiff’s counsel’s actions in the Hill case, it is advisable for the plaintiff to show some patience while repeatedly requesting, in writing, the settlement payment once the mandated 20-day time period has expired for the timely production of the check. By showing some patience and creating a written record of repeated requests for the production of the check, the plaintiff will be able to bolster their request for sanctions as opposed to the case where a plaintiff runs to the courthouse on a motion for sanctions on the 21st day after the release was received by the defense counsel.

Daniel E. Cummins is the managing partner at Cummins Law in Clarks Summit, Pennsylvania. Contact him at dancummins@cumminslaw.net.




Reprinted with permission from the June 18, 2026 edition of the "The Pennsylvania Law Weekly © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Court Gives Detailed Opinion on Sanctions Applicable to Late Payment of Settlement Funds

In the case of Hill v. Riverside Healthcare and Rehabilitation Center, No. 2023-CV-3399 (C.P. Lacka. Co. May 22, 2026 Nealon, J.), the Lackawanna County Court of Common Pleas addressed a Petition filed by a Plaintiff seeking to impose sanctions against a Defendant under Pa. R.C.P. 229.1 for failing to deliver settlement funds in a timely fashion after an executed Release was produced by the Plaintiff.

According to the Opinion, this matter involved a professional liability action against a healthcare and rehab center.

In this matter, the Defendant facility owner at issue in this case eventually became insolvent and filed for bankruptcy.

During the course of this litigation, the parties agreed to participate in a settlement conference with a private mediator. Prior to the mediation, the Defendant’s attorney confirmed in writing that the parent and affiliate entities of the Defendant were insolvent and/or in bankruptcy proceedings and confirmed that the Defendant would not be able to satisfy the first $75,000.00 of any settlement but that any obligation thereafter would be covered by insurance.

After a mediation, the parties reached a settlement agreement for a net payment of $175,000.00. The total amount of the party’s settlement was actually $250,000.00 but the Plaintiff agreed to waive the Defendant’s payment of its $75,000.00 deductible with a net settlement payment of $175,000.00 to be funded entirely by the Defendant's insurance carrier.

The court’s Opinion in this matter emphasized that the insurance company’s adjuster agreed to the settlement without any indication of any coverage issue between the actual Defendant and its insurance company.

Thereafter, in this death case, the court granted the Plaintiff’s Petition for Court Approval of the Settlement. 

The Plaintiff then executed the settlement agreement and sent the signed Release, the court Order approving the settlement, and other closing documents to the Defendant’s counsel and requested payment.

The court point out that noticeably absent from the settlement agreement was any indication, or even a suggestion, that a coverage issue may exist between the Defendant and its insurance company or that any such coverage issue needed to be resolved before the Plaintiff would receive the settlement payment. 

After the closing documents were produced and the settlement check was not forthcoming, Plaintiff’s counsel wrote for the status of the settlement check.  Defense counsel indicated that there was some issue that the adjuster had to work out. There was no reference made to any insurance coverage issue during that interaction.

After several months then went by with no production of the settlement check, counsel for the Plaintiff filed the Motion at issue.

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed Pennsylvania Rule of Civil Procedure 229.1 which governs the prompt delivery of settlement funds within twenty (20) days of the receipt of an executed Release by the Defendant. 

The Rule otherwise provides that, if court approval of the settlement is required, then the 20 day deadline under Rule 229.1 does not begin to run until the settlement is so approved.

Judge Nealon noted that, under Rule 229.1, if the Defendant fails to timely deliver settlement funds, the Plaintiff has the right to seek one of two possible remedies. First, a Plaintiff can seek to invalidate the settlement agreement and allow the matter to return to the trial list. Second, the Plaintiff can seek sanctions against the Defendant.

The court noted that, if a plaintiff opts to pursue sanctions against a defendant, Rule 229.1(e) directs the Plaintiff to (1) file an affidavit “attesting to non-payment,” to submit copies of “any document evidencing the terms of the settlement agreement,” and/or “the executed Release,” and “a receipt reflecting delivery of the executed Release,” (2) file certifications by counsel “of the applicable interest rate,” and “that the affidavit and accompanying documents have been served on the attorneys for all interested parties,” and (3) file “the form of order prescribed by subdivision (h)” for execution by the court.

The court also noted that under Rule 229.1(g), if the court determines that the Defendant has failed to deliver the settlement funds within twenty (20) days and there is no material dispute as to the terms of the settlement or the terms of the Release, the court “shall impose sanctions in the form of interests calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which interest is awarded, plus one (1) percent, not compounded, running from the 21st day after the production of the executed Release to the date of delivery of the settlement funds, together with reasonable attorneys’ fees incurred in the preparation of the affidavit.

The court otherwise ruled that the fact that the insurance company’s noncompliance with the payment requirement may be attributable to a post-settlement assertion of a potential coverage issue did not warrant the denial of the Plaintiff’s request for sanctions.  Accordingly, the court granted the Plaintiff’s Motion and awarded sanctions pursuant to Rule 229.1.

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

Source of image:  Photo by kaboom pics on www.pexels.com.

Trial Court Rules that Plaintiff's Medical Malpractice Experts are Competent to Testify on Causation

In the case of Kenny v. Lackawanna Health and Rehab Center, No. 2021-CV-1360 (C.P. Lacka. Co. May 28, 2026 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed various Motions in Limine filed by a Defendant in a medical malpractice case.

The Defendants filed a Motion In Limine seeking to bar the decedent’s treating orthopedic surgeon and the Plaintiff’s skilled nursing care and nursing home administration expert from expressing opinions regarding the cause of the Defendant’s hip fracture.

The Defendant more specifically asserted that the decedent’s treating orthopedic surgeon failed to state his medical causation opinion with the requisite degree of medical certainty in his pre-trial reports. 

After reviewing the record before him, the court ruled that a review of all of the reports issued by the orthopedic surgeon confirmed that the doctor had articulated his medical causation opinion with the requisite degree of medical certainty. The court noted that any objection regarding the particular terminology used by the expert in his reports went to the weight of the evidence rather than the admissibility of the expert testimony. As such, this Motion In Limine was denied.

With regards to the Plaintiff’s nursing expert and the defense argument that this expert should be precluded from testifying regarding causation on the grounds that the expert lacked the required education, training or experience in orthopedics, the court noted that the most recent law in Pennsylvania is that a registered nurse is competent to testify concerning the relevant nursing standard of care as well as on the issue of medical causation. Accordingly, the court overruled the Defendant’s argument that the nursing expert is incompetent to testify as to causation.

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

Plaintiff Found To Have Made Good Faith Efforts To Complete Service of Process in Medical Malpractice Case

In the case of Francis v. Xu, No. 2025-CV-3745 (C.P. Lacka. Co. April 16, 2026 Nealon, J.), the court addressed Preliminary Objections filed by a Defendant-physician in a medical malpractice matter seeking to dismiss the claims asserted against the physician on the grounds that the Plaintiffs failed to effectuate service of original process in a timely fashion or with good faith upon the Defendant-physician prior to the expiration of the two (2) year statute of limitations. 

Judge Terrence R. Nealon, writing for the Lackawanna County Court of Common Pleas, agreed that, in order to toll the statute of limitations, a plaintiff must indeed make a good faith effort to timely serve initial process on a Defendant. The court also agreed that, if a plaintiff fails to do so, the lawsuit is subject to dismissal where either (a) the plaintiff has demonstrated an intent to stall the judicial machinery, or (b) the plaintiff’s failure to comply with the Rules regarding service of original process has prejudiced the defendant.

After reviewing the record before him, Judge Nealon found that the Plaintiff in this matter made repeated attempts to serve the Defendant at issue at multiple locations while expeditiously and repeatedly reinstating the Complaint along the way.

Accordingly, the court found that service of process upon the Defendant physician resulted from the Plaintiff’s repeated efforts to diligently and timely serve the doctor. The court also found that the Defendant doctor did not identify any prejudice that she allegedly suffered due to any delay in serving initial process.

As such, the doctor’s Preliminary Objections asserting untimely service of original process were overruled.

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

Appellate Court Upholds Ruling That Contracts Regarding Gambling Debts Are Void

In its non-precedential decision in the case of Dhaduk v. Patel, No. 576 MDA 2025 (Pa. Super. March 16, 2026 Kunselman, J., McLaughlin, J., and Lane, J.) (Mem. Op. by McLaughlin, J.), the Pennsylvania Superior Court sustained a trial court decision by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granting demurrers against a Plaintiff’s claims 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 alleged that the neurologist agreed to play blackjack on behalf of the internist with the express understanding that the internist would be responsible for any resultant gambling losses suffered by the neurologist in the process.

The Plaintiffs claim 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 black jack.

The Defendant internist filed demurrers against the Plaintiff’s claim of breach of contract, promissory estoppel, fraud, and unjust enrichment.

The Superior Court agreed with the trial court’s decision that a Pennsylvania statute held that gambling debts between private individuals were uncollectable and that any related contracts regarding gambling are void. The Superior Court upheld Judge Nealon’s ruling and agreed that Pennsylvania law precluded the recovery of the debt.

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


Source: Article – “Court: Pair Can’t Recoup $700K Loan Friend Used For Gambling,” By Jim Lockwood of The Scranton Times (March 20, 2026).

Source of image:  Photo by Dusan Kipic on www.unsplash.com.  

Judge Nealon of Lackawanna County Rules in Favor of Consolidation of Post-Koken UIM and Third Party Claims

Lackawanna County Courthouse

On the heels of Lackawanna County Judge Mark Powell's decision in favor of the consolidation of claims in Post-Koken automobile accident cases that was summarized in yeasterday's Tort Talk Blog post comes the decision of Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Bello v. Smith and Progressive Ins. Co., No. 2024-CV-6105 (C.P. Lacka. Co. March 6, 2026 Nealon, J.).

In Bello, Judge Nealon addressed Preliminary Objections filed by a UIM carrier in a post-Koken matter involving combined third party claims against a tortfeasor and UIM claims against the Plaintiff’s own insurance carrier. This case also involved the additional fact that the tortfeasor Defendant was allegedly operating his vehicle under the influence at the time of the accident.

The UIM carrier filed Preliminary Objections under Pa. R.C.P. 1028(a)(5) asserting the “misjoinder of a cause of action,” and arguing that the tort and UIM claims should be severed for pre-trial and trial purposes.

Here, Judge Terrence R. Nealon, of the Lackawanna County Court of Common Pleas reviewed the current status of Pennsylvania law on issue of the joinder of third party tortfeasor claims and UIM claims under a single caption, much of which prior case law was developed through his own judicial Opinions, to come to conclusion that the Preliminary Objections should be denied and the cases allowed to proceed, at least through the pleadings and discovery phases, in a consolidated basis.

Of note, the Court also referenced, on multiple occasions, the Pennsylvania Bar Quarterly article written by Daniel E. Cummins entitled "Hurricane Koken Rages On:  Uncertainty Continues in Motor Vehicle Accident Litigation In The Stormy Post-Koken Era," 90 Pa. B.A.Q., 108, 111 & n. 15-19 (July 2019). 

Judge Terrence R. Nealon
Lackawanna County 

In support of this decision, Judge Nealon noted that the damages that might be recoverable both the tortfeasor and the UIM carrier present common questions of law and fact and involve the same evidence and issues.

One additional issue involved in this matter was the fact that there were claims for punitive damages asserted against the tortfeasor Defendant due to the DUI allegations and other allegations.  The court acknowledged would be irrelevant to the compensatory damages determination given that the UIM coverage barred the recovery of any punitive damages under that policy.

Relative to the allegations that the tortfeasor Defendant was operating his vehicle while under the influence of alcohol and controlled substances, the court noted that such evidence “could unfairly prejudice the UIM insurer by inflaming the jurors’ emotions and influence the compensatory damages award.”

Judge Nealon noted that, while, in such instances, bifurcation of the compensatory damages and punitive damages claims for trial may be warranted, that decision should be left to be made later by the assigned trial judge after discovery has been completed and the case has been certified for trial.

However, after review copious case law in support of the same, the court ruled that, in the meantime, no legitimate basis existed for severing the tort and UIM claims for purposes of discovery and pre-trial matters.

Accordingly, the court overruled the UIM carrier’s Preliminary Objection asserting a misjoinder of a cause of action under Rule 1028(a)(5).  With this decision, the court denied the request to sever the tort claim from the UIM claims.

Judge Nealon did note that his decision was without prejudice to the right of any Defendant to later seek a bifurcation of the claims for compensatory damages and punitive damages for trial.

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

Link to Copy of Hagedorn Decision Reviewed in Yesterday's Tort Talk Post.

Yesterday's Tort Talk blog post reviewed the case of Hagedorn v. Rick’s Backhoe Service, Inc., No. 2018-CV-3723 (C.P. Lacka. Co. Jan. 9, 2026 Nealon, J.), which involved a decision on a Motion for Bifurcation.  The Link to the post was not complete.

Here is the LINK to the above decision.  Sorry for any inconvenience.

Thank you for reading Tort Talk.

Motion To Bifurcate Motor Vehicle Accident Lawsuit Involving Bad Injuries Denied

In the case of Hagedorn v. Rick’s Backhoe Service, Inc., No. 2018-CV-3723 (C.P. Lacka. Co. Jan. 9, 2026 Nealon, J.), the court denied a Defendant’s Motion to Bifurcate the liability and damages issues presented in a motor vehicle accident case.

According to the Opinion, this matter arose out of a motor vehicle accident during which the Plaintiff was operating a motorcycle.  The Plaintiff and the Defendant driver allegedly engaged in road rage in a construction zone and that, during the interaction, the Defendant driver negligently and recklessly struck the Plaintiff’s motorcycle, resulting in the accident.

In seeking to bifurcate the liability and damages issues presented, the Defendants asserted that they were proceeding on a strong liability defense. 

The Defendants also asserted that, given the severity of the injuries sustained by the Plaintiff, there was a strong likelihood that the jury’s decision on liability would be tainted by sympathy for the Plaintiff if the jury was to hear the damages evidence and the severity of the damages alleged. 

The defense further argued that the bifurcation would expedite the action by allowing for a clear presentation of the negligence issues to the jury without confusing the issues relative to the injuries and damages claims presented.

In opposition, the Plaintiff asserted, in part, that the testimony of the treating physicians would explain, in part, the mechanics of the Plaintiff’s injuries which could also provide relevant context on how the collision actually occurred and what the forces involved were. The Plaintiff additionally asserted that a bifurcation of the trial would not serve the interests of judicial economy as it would cause a lengthier trial and additional expenses.

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the Motion to Bifurcate under the standard of review set forth in Pa. R.C.P. 213(b). 

In reviewing the law, Judge Nealon noted that appellate decisions indicated that cases should only be bifurcated where the separation of the issues would facilitate the orderly presentation of evidence and would support judicial economy. Bifurcation is typically only granted where the issues of liability and damages are “totally independent.” See Op. at 4 [citation omitted].

Here, the court found that bifurcation of the trial would not promote convenience or judicial economy. The court additionally found that the issues of liability and damages were not totally independent from one another based upon the information in the record before the court.

Judge Terrence R. Nealon
Lackawanna Co.

In this regard, Judge Nealon noted that the Plaintiff indicated that his treating physicians would testify regarding the mechanics of his injuries, which could provide context regarding the dynamics of the impact, which could bear on the issue of how the accident occurred. Judge Nealon also noted that proof of that nature indicates that certain evidence on liability and damages is intermingled. 

The court also noted that the defense had not established that bifurcation was necessary to actually avoid prejudice. In terms of any concern that the jury might be sympathetic towards the Plaintiff due to the nature of the Plaintiff’s injuries, the court noted that the jury would be furnished with instructions from the court admonishing the jury that they should not allow sympathy or emotion to influence their deliberations or verdict.

Judge Nealon additionally cited to Pennsylvania Supreme Court precedent confirming that the courts may assume that juries will follow judicial instructions faithfully.

Based upon its review of the matter, the court found that bifurcation of the liability and damages issues into separate trials pursuant to Pa. R.C.P. 213(b) was not proper in this matter. Accordingly, the Motion was denied.

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

Civil Trial Stayed Pending Resolution of Companion Criminal Case

In the case of Estate of Dugan v. Hotton, No. 2023-CV-4957 (C.P. Lacka. Co. Jan. 6, 2026 Nealon, J.), the court granted a Defendant’s Motion to Stay a civil jury trial in a wrongful death action arising out of a motor vehicle accident pending the resolution of the Defendant’s companion criminal court proceedings under charges of driving under the influence.

In so ruling, the court reviewed the applicable six-factor balancing test adopted by the Pennsylvania Superior Court in the case of Kessee v. Dougherty, 230 A.3d 1128 (Pa. Super. 2020). After reviewing those 6-factors, the court deemed it appropriate to enter the stay.

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas, who decided this issue, handed down a very detailed Opinion outlining the current status of the law in this regard.

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

Defense counsel in this case is Daniel E. Cummins, Esq.

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

Effort To Dismiss Case Due To Service of Process Issues Fails Procedurally and Substantively

In the case of Howey v. O’Leary, No. 2024-CV-5227 (C.P. Lacka. Co. Dec. 15, 2025 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a Defendant’s Motion for Judgment on the Pleadings based upon service of process issues. According to the Opinion, this matter arose out of a motor vehicle accident.

In the Complaint, the Plaintiff alleged that the Defendant resided at a certain address. The Sheriff’s Department served the Complaint on the Defendant’s father at the address pled in the Plaintiff’s Complaint.

Thereafter, the Defendant did not file any Preliminary Objections asserting improper service of a Complaint. Nor did the Defendant file a responsive pleading raising the statute of limitations as an affirmative defense under Pa. R.C.P. 1030(a).

Rather, before the pleadings were closed, the Defendant filed a Motion for Judgment on the pleadings in which she asserted that she did not reside at the address pled in the Complaint when the Complaint was served.

In response, the Plaintiff asserted that the Defendant’s address was identified on the Defendant’s driver’s license, vehicle registration, and insurance paperwork as being the correct address. 

Judge Terrence R. Nealon
Lackawanna County Court of Common Pleas

In addresssing the matter before him, Judge Nealon initially noted that Pennsylvania law requires that any alleged defects in service of process must be raised by way of Preliminary Objections. The court additionally noted that a party who fails to object to service of process by way of Preliminary Objections waives the issue. As such, the court found that the Defendant waived the issues regarding service of process by proceeding with a Motion for Judgment on the Pleadings.

Judge Nealon went on to note that, even if the Defendant’s claim of a failure to complete proper service of process was considered, the defense's request for relief would be denied in any event.

First of all, the court noted that the pleadings were not closed and, as such, the filing of a Motion for Judgment on the Pleadings was improper. 

The court additionally noted that the Defendant failed to satisfy the standard of review of showing that there were no disputed issues of fact and that the Defendant was entitled to judgment as a matter of law.
Here, there was as dispute between the parties as to where the Defendant resided.

For all of these reasons, the court denied the Defendant’s Motion for Judgment on the Pleadings and directed that the Defendant file a responsive pleading to the Complaint.

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

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

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

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

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

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

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

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

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

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

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

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Summary Judgment Denied in Supermarket Parking Lot Pothole Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Defendants filed Preliminary Objections asserting improper venue. 

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

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

Judge Terrence R. Nealon
Lackawanna County

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

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

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

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

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

Trial Court Relies on Deliberative Process Privilege To Quash Subpoenas

In the case of Helring v. Scranton Police Pension Board, No. 2024-CV-771 (C.P. Lacka. Co. Aug. 11, 2025 Nealon, J.), the court entered a detailed Order granting a Defendant’s Motion to Quash subpoenas addressed to certain witnesses.

According to the Order, this matter involves a former Scranton Police Officer, whose disability pension was revoked following his federal felony conviction for knowingly stealing federal funds from the City of Scranton.

The former police officer filed this local agency appeal and, in anticipation of a hearing, served subpoenas upon members of the Police Pension Board seeking to compel their attendance at a hearing to testify regarding the standards they applied in the discretionary decision-making process that resulted in the revocation of the Plaintiff’s disability pension.

In response to the Motion to Quash, the court granted the same after confirming that the proposed subjects of inquiry identified by the Plaintiff were protected from disclosure by the “deliberative process privilege” which applies in cases involving governmental agencies.

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