A Continuing Trend of Claims Representative Depositions Being Allowed in Luzerne County

Luzerne County Courthouse

In each of the following three (3) Orders (without Opinion) out of the Luzerne County Court of Common Pleas, the court ruled that the claims representatives handling the case for the Defendant’s liability carrier was required to attend a deposition requested by Plaintiff’s counsel. 

However, the court did note that the Plaintiff would be precluded from questioning the claims representative as to the claims representative’s mental impressions, conclusions, or opinions respecting the value or merit of any claim, any defense thereto, or respecting strategy or tactics with respect to any claim or defense:


The court Order in Ehrmanntraut v. People’s Security Bank and Trust Co., No. 4995-CV-2020 (C.P. Luz Co. Nov. 15, 2021 Hughes, J.), may be viewed at this LINK.


The court Order in Harenza v. House, No. 2019-CV-10883 (C.P. Luz Co. Dec. 2, 2021 Pierantoni, J.), may be viewed at this LINK.


The court Order in Stochla v. Fenner, No. 2019-CV-11607 (C.P. Luz. Co. May 26, 2022 Polachek-Gartley, J.), may be viewed at this LINK.

Failure to Produce Object that Allegedly Caused Injury Results in Summary Judgment

In the case of Swartwood v. Denny’s Restaurant, No. 9983 of 2016 (C.P. Luz. Co. Nov. 21, 2018 Polachek-Gartley, J.), the court granted the Defendant’s Motion for Summary Judgment in a case where the Plaintiff alleged that he suffered severe dental injuries and damages from a foreign substance or particle that was in his breakfast that he had purchased from the Defendant.  

According to the record before the court, the Plaintiff indicated that he was eating breakfast with his son when he felt something in his mouth that felt like hard plastic.   The Plaintiff asked his son to look into his mouth what it was but his son was unable to see anything.

The Plaintiff then went to the bathroom and saw that a tooth was hanging.   The Plaintiff left Denny’s and went immediately to a dentist for treatment.

The Plaintiff did not know what happened to the alleged piece of plastic and opined that he may have swallowed it or spit it out.   The Plaintiff also asserted that he did not have any problems swallowing it or possibly later passing it.  

The court additionally noted that the Plaintiff could not describe what color the object was and had only testified that it felt like a little, hard chip.   The Plaintiff additionally admitted that he was not able to isolate the piece of plastic in his mouth with his tongue.  

The court also noted that the Plaintiff did not tell anyone at Denny’s about the broken tooth before he left the restaurant.   It was also confirmed that his son did not tell anyone.   After the Plaintiff went to the dentist and his tooth was repaired, he then returned to Denny’s in order to explain what happened.  

The defense filed a Motion for Summary Judgment asserting that the Plaintiff failed to meet his burden of proof of negligence due to the Plaintiff’s failure to produce the piece of plastic or the foreign object alleged to have been in the food.  

In granting the Motion for Summary Judgment, the court noted that the Plaintiff not only failed to produce the foreign object for inspection, but the Plaintiff never even saw the item himself and was unable to describe it with any particularity.   

Judge Tina Polachek-Gartley
Luzerne County
 

Judge Polachek-Gartley noted that the Superior Court has held that permitting claims of potentially defective products to proceed where the consumer throws the product away after an accident would encourage false claims and would make the defense of the same more difficult and would potentially put a Plaintiff in a position of deciding whether to keep the item based upon whether that retention of the product would help or hurt the Plaintiff’s case.  

The trial court in this Swartwood case found that the Defendant was prejudiced by the fact that the object cannot be examined and given that the defense had no opportunity to address whether or not this piece of plastic or foreign body originated from its own kitchen or was a product from the food supplier. 

The court additionally noted that the Defendant did to present any medical evidence or records that connected the object to the broken tooth.

There was no evidence that a foreign substance or object likely caused the tooth injury.   Nor was any circumstantial evidence presented in this regard. Given that the facts placed on record by the Plaintiff were found to be insufficient to make out a prima facie cause of action for negligence against the Defendant, the court found that there was no issue to be submitted to the jury and, therefore, the Defendant’s Motion for Summary Judgment was granted.  

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

I send thanks to Attorney Ann O. Farias of the Plains, Pennsylvania branch of the Law Offices of Lester G. Weinraub/Nationwide In-house for bringing this case to my attention. 

Judge Polachek-Gartley of Luzerne County Sustains Preliminary Objections to Punitive Damages Claims in Trucking Accident Case

In the case of Coleman v. TonyHaas et.al., No. 12529 of 2016 (C.P. Luz. Co. April 28, 2017 Polachek-Gartley, J.), the court sustained the Defendants’ Preliminary Objections to the Plaintiff’s claims for punitive damages in a trucking accident case.  

The accident was alleged to have occurred when a tractor trailer moved from the right lane into the left lane and struck the Plaintiff’s vehicle.  

Reviewing the allegations of the Plaintiff’s Complaint, the court found that, at most, the Plaintiff’s allegations gave rise to a claim for negligence and did not support the claims for punitive damages.  

Anyone wishing to read this Opinion online may click HERE.

I send thanks to Attorney John A. Statler of the Lemoyne, Pennsylvania office of Johnson, Duffie, Stewart & Weidner for bringing this case to my attention.  

Judge Polachek-Gartley of Luzerne County Denies UIM Carrier's Preliminary Objections in Post-Koken Case Involving an Alleged DUI Tortfeasor Defendant

In a recent Order without Opinion in the case of Baldinucci v. Purcell and State Farm Mut. Auto. Ins. Co., No. 2015-Civil-7972 (C.P. Luz. Co. Dec. 18, 2015 Polachek-Gartley, J.), Judge Tina Polachek-Gartley of the Luzerne County Court of Common Pleas denied Preliminary Objections filed by the UIM carrier Defendant asserting a misjoinder of the Plaintiff’s tort and UIM breach of contract claims in a case where the tortfeasor Defendant driver was alleged to have been driving under the influence at the time of the accident.  

Anyone desiring a copy of this Order without Opinion may email me at dancummins@comcast.net.

I send thanks to the prevailing Plaintiff’s attorney, Michael A. O’Donnell of the O’Donnell Law Offices in Kingston, Pennsylvania for providing me with a copy of this Order.