Judge Williamson of Monroe County Addresses a Novel Issue of Proper Pleading

Which way to plead?

In the case of Windsor-Mount Joy Mut. Ins. Co. as subrogee to the Rights of The Revillas v. Cory Willis Trucking, LLC, No. 006821-CV-2024 (C.P. Monroe Co. Jan. 6, 2026 Williamson, J.), the court addressed a Defendant’s Petition for Leave of Court to File a Third Party Complaint to Join Additional Defendants.

According to the Opinion, this matter involved a bridge collapse allegedly caused by the Defendants while crossing a bridge with a load of stone. The bridge was owned by the Plaintiff insurance company’s insureds and provided access across a creek to the land of the insureds.  The Plaintiff insurance company, as subrogee to the rights of their insureds, brought suit against the Defendants seeking to recoup the damages they paid out for the repair of the bridge.

One issue faced by the court in this regard was the argument by the Plaintiff that the proper method to bring in the insureds as allegedly responsible parties for the damages that were incurred was by way of a counterclaim in the Defendants’ Answer to the Complaint as opposed to the Defendants proceeding by way of a Joinder Complaint to name the insureds as Additional Defendants.

The Plaintiffs in the case were asserting that the insureds, being listed in the caption as being related to the subrogation insurance company Plaintiff, and as otherwise already being involved in the case, could only be subject to a counterclaim and not a Joinder Complaint.

After reviewing the issues, Judge David J. Williamson of the Monroe County Court of Common Pleas found that the insureds were not parties to the suit for purposes of requiring a counterclaim as opposed to a joinder as a third party Defendant. The court noted that the Plaintiff in this matter was the insurance company, which had filed the action as subrogee for the insureds. The court noted that the insurance company’s appearance in the lawsuit did not bring personal jurisdiction of the court over the insureds as parties.

Judge David J. Williamson
Monroe County

Judge Williamson noted that subrogation rights confer the right to proceed against someone else, but it does not mean that the subrogee stands in the shoes of the insured for purposes of claims made against the insured. The court noted that it “makes sense” that the insured must be officially joined as an actual party.

The court additionally noted that the parties in this matter had not cited any case law that would support an argument that, as subrogee, the insureds were automatically a party to the action. The court noted that all counsel seemed to be in agreement that this was novel issue.

Judge Williamson otherwise noted that, in the pleadings, the insureds were not named as the actual party Plaintiff and were repeatedly referred to as the Plaintiff’s insureds.  The court also noted that, throughout the Complaint, the Plaintiff insurance company was listed as being a separate and distinct party from its insureds.

The court also noted that the insureds did not sign any verification to the Complaint.

For these reasons, Judge Williamson ruled that the proper procedure was for the insureds to be brought into the case by way of a Third Party Complaint.

In addressing the timeliness of the Third Party Complaint, the court noted that such Joinder Complaints are permitted as course within sixty (60) days of the filing of the original Complaint. Once the sixty (60) day period expired, the court is required to undertake a balancing test.

After reviewing the record in this matter, the court ruled in favor of allowing for the filing of a Joinder Complaint, particularly where there would be no prejudice to the parties by allowing the same.

In terms of any argument with regards to the statute of limitations, Judge Williamson noted that that issue could be raised in the pleadings that would be filed after the filing of the Joinder Complaint.

As such, the court granted the Petition for Leave of Court of File a Joinder Complaint.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 12, 2026).

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

Claims of Immunity Must Be Pled as New Matter, Not Via Preliminary Objections

In the case of Cullen v. Boomer Flooring, LLC, No. 6009-Civil-2025 (C.P. Monroe Co. July 15, 2025 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas addressed various Preliminary Objections filed in a premises liability case.

According to the Opinion, the Plaintiff was employed by a plumbing subcontractor and was working on a construction site when he fell through holes in the floor that were covered by cardboard and suffered injuries as result.

In this case, one of the Defendants filed Preliminary Objections asserting that, since that Defendant was a statutory employer, it was entitled to immunity for any tort related injuries suffered by a subcontractor’s employees.

The Plaintiff in this matter filed Preliminary Objections to this Defendant’s Preliminary Objections and asserted that any defenses regarding immunity should not be considered during the Preliminary Objections stage and should instead be pled as new matter.

After reviewing Pa. R.C.P. 1030(a) which list all affirmative defenses, including “immunity from suit,” the court agreed with the Plaintiff’s argument and sustained the Plaintiff’s Preliminary Objections to the Defendant’s Preliminary Objections.

The court otherwise reviewed other Preliminary Objections asserted by the Defendants relative to the Plaintiff’s claims of “carelessness and recklessness conduct.” Relying upon the Superior Court decision in the case of Monroe v. CBH2O, LP, 286 A.3d 785 (Pa. Super. 2022), the court allowed the allegations of recklessness to proceed into discovery. As such, the Preliminary Objections asserted by the Defendants in this regard were overruled.

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


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

Source of image:  Photo by Sylvia Brazzoduro on www.pexels.com.

Summary Judgment Granted in Store Bathroom Slip and Fall Case

In the case of Staley v. Price Chopper, No. 3908-CIVIL-2024 (C.P. Monroe Co. Aug. 11, 2025 Williamson, J.), the court granted summary judgment in a slip and fall matter that occurred at a grocery store.

According to the Opinion, the Plaintiff visited a grocery store and went to use the lady’s restroom. While in the restroom, the Plaintiff allegedly slipped on some unknown substance and fell.

After the completion of discovery, the defense filed a Motion for Summary Judgment asserting that the Plaintiff had failed to offer any evidence to show how or when the alleged substance came to be on the floor and/or that the store employees had any actual or constructive notice of the condition.

The court agreed with the defense position. The court noted that the Plaintiff failed to offer any evidence as to what substance allegedly caused her to fall. The Plaintiff admitted that she did not notice any wet spots on the floor before she fell. 

All the Plaintiff could state at her deposition was that she knew there was a liquid on the floot because her clothes were wet after the incident.  However, the record revealed not only that it may have been raining on the day of the accident but also that, when the Plaintiff fell in the bathroom stall area, her arm and hand had gone into the toilet.

The court also noted that, even considering the evidence in the light most favorable to the Plaintiff, the only conclusion is that the Plaintiff allegedly may have slipped on something wet. The court noted that it is not unusual for wet spots to be found in public restrooms, particularly around the toilet area. The court held that, without some indication of what the substance actually was, for example, from a leaking toilet or a spilled hand soap, it was difficult to determine from the record whether the condition that caused the Plaintiff was a long-standing condition as opposed to a transitory one.

In this regard, the court also noted that the Plaintiff failed to provide any evidence as to the length of time that the condition existed or if the Defendant store employees knew or should have known of the alleged condition.

The court also rejected the Plaintiff’s contention that the Defendant should have regularly checked the bathroom during the course of the day. The court noted that the Plaintiff did not produce any evidence in this regarding, including any chart under which employees would check off whether or not they had inspected the bathroom at certain times during day.

The Plaintiff also pointed to surveillance video of the store that shows that no employee entered the restroom for thirty (30) minutes prior to the Plaintiff’s fall. 

The court noted that while the video may show that no one attended to the restroom for thirty (30) minutes before the Plaintiff’s fall, that evidence does not translate to a finding that the Defendant was negligent in not cleaning the restroom that entire day. 

Rather, the court noted that the surveillance video simply showed that the restroom was not checked for thirty (30) minutes before the Plaintiff’s fall. The court held that this did not mean that the Defendant was aware of, or should have been aware of, an alleged dangerous condition that went unattended.

For these reasons, and others noted in the Opinion, the court granted summary judgment to the Defendant store.

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

It is noted that Daniel E. Cummins of Cummins Law was defense counsel in this matter.

Source of image: Photo by Juno Jo on www.unsplash.com.

Summary Judgment Granted in Water Park Ride Under "No-Duty" Rule

In the case of Mantilla v. CMBK Resort Holdings, LLC, No. 5780-Civil-2023 (C.P. Monroe Co. April 25, 2025 Williamson, J.), the court granted a Defendant’s Motion for Summary Judgment in a case in which the Plaintiff alleged injuries from a water park ride during which the raft either flipped or the Plaintiff fell from it, resulting in injuries to the Plaintiff.

After reviewing the applicable law, which included the fact that, generally speaking, purveyors of theaters, amusement parks, or sports facilities have a “no-duty” rule to protect a party from injuries so long as the injuries suffered arose from a risk that was “common, frequent, and expected” of the situation.

The court ruled that, based upon the record before it, the Plaintiff has failed to allege or establish any conduct on the part of the Defendants that was not an inherent risk of utilizing a water slide.

In this matter, the Plaintiff admitted at her deposition that her raft flipped due to a sudden change in the water pressure, causing her to strike her shoulder on the side of the slide itself. The court noted that this is an inherent risk of water slides, where unexpected changes in water flow and the possibility of body parts colliding with the hard surface of the tube.

Given that the Plaintiff failed to show any other evidence of negligence and given that the Defendant had no duty to protect the Plaintiff from the “common, frequent, and expected” dangers of water slides, the court granted summary judgment.

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


Source: “The Legal Intelligencer Common Pleas Case Alert,” www.Law.com (July 10, 2025).

Liability for Skiing Accident Found to be Barred by Signed Waiver and Under the Skier's Responsibility Act

The case of Lin v. Shawnee Mountain Ski Resort, No. 4031-CV-2022 (C.P. Monroe Co. Dec. 11, 2024 Williamson, J.), the court granted the Defendant ski resort’s Motion for Summary Judgment in a case arising out of a skiing accident at the resort.

According to the Opinion, the Plaintiff was relatively a novice at skiing.  As part of the ski rental process at the resort, the Plaintiff executed a release or waiver document.

After some time on the “bunny slope,” the Plaintiff and her friend went to ski on other trails on the mountain. 

At some point during the day, when coming down one of the other trails, the Plaintiff came all the way down the hill and was unable to slow or stop allegedly due to icy conditions and missed crashing into the ski racks situated outside of the lodge but skied into the lodge itself. The Plaintiff, who was wearing a helmet, went head first through a glass window of the lodge. 

The Plaintiff alleges that, as a result of the collision, she suffered a broken pelvis and multiple stomach lacerations which have resulted in considerable scarring.

The Plaintiff sued on various theories of negligence. In part, the Plaintiff alleged that the lodge was located too close to the bottom of the trail, that the Defendants failed to provide some sort of stopping mechanism in front of the ski racks in the lodge, and that the Defendants should have installed safety glass in the lodge's windows. The Plaintiff additionally alleged that the trail she came down was mislabeled as a easier or beginner's slope.

The Defendants filed a Motion for Summary Judgment asserting that the Plaintiff’s inability to stop and result an accident where inherent risks of skiing which is deemed to be an assumed risk under the Pennsylvania Skier’s Responsibility Act.

In the alternative, the Defendants alleged that the Plaintiff's claims were barred by the release that the Plaintiff signed at the time she rented the ski equipment.

The Defendants also requested summary judgment on the punitive damages claims asserted.

Judge David J. Williamson of the Monroe County Court of Common Pleas granted the Defendants’ Motion for Summary Judgment, holding in pertinent part, that the Plaintiff’s negligence claims were barred by both the Skier’s Responsibility Act and the liability waiver that the Plaintiff had signed before commencing her skiing activities.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 29, 2025).

Motion To Amend to Add Claims of Recklessness/Punitive Damages Due to Truck Driver Using Headset Denied

In the case of Legions v. Abdurasulov, No. 4545-CV-2022 (C.P. Monroe Co. March 8, 2024 Williamson, J.), the court denied a Plaintiff’s Motion to Amend his Amended Complaint to reinstate a claim for punitive damages and allegations of recklessness and reckless indifference.

According to the Opinion, this matter arose out of a motor vehicle accident involving a tractor trailer. 

The court had previously ruled that allegations of reckless conduct pled the Plaintiff in earlier versions of the Complaint did not meet the minimal pleading requirement to sustain a cause of action for punitive damages. In this Opinion, it was indicated that the parties had completed certain aspects of discovery and the Plaintiff was attempting to have the claims of recklessness and the claims for punitive damages reinstated.

The Plaintiff asserted that dashcam footage from the Defendant tractor trailer’s truck allegedly showed that the Defendant truck driver had failed to stop for an adequate amount of time at a red light and also that the truck driver was allegedly distracted by speaking, via a headset in his right ear, to someone on the phone at the time of the accident.

The court agreed with the Defendant that the issues raised by the Plaintiff with regards to whether or not the truck driver had stopped or did not stop long enough at a red light had been previously rejected as being reckless conduct rising to the level of punitive damages.

As such, with this Opinion, the court addressed the issue of whether the Defendant tractor trailer driver acted recklessly by using a headset to speak with someone while driving.

After reviewing the law regarding punitive damages generally along with certain cases addressing the issue of whether a claim of punitive damages is appropriate when a driver is speaking on telephone at the time of the accident, the court ruled that the Plaintiff’s Motion to Reinstate the Claims of Recklessness and Punitive Damages would be denied. The court ruled that, under the facts of this case, driving a tractor trailer while speaking through a headset did not rise to the level of “willful, wanton, or reckless” conduct so as to allow an amendment of the pleadings as requested.

The court ruled that the evidence revealed that the driver was using a hands-free earpiece in his right ear, which device did not obstruct his view while driving. It was emphasized that the truck driver did not even have his hands on a cell phone at the time of the accident. The court otherwise ruled that the act of simply talking while driving at the time of an accident does not rise to the level of reckless conduct.

Accordingly, the court ruled that the Plaintiff’s claim for punitive damages is not supported by the evidence gathered during discovery. Accordingly, the motion was denied.

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

Source of image:  Photo by Brett Jordan on www.unsplash.com.

Summary Judgment Denied in an Alleged Black Ice Slip and Fall Case

In the case of Hicks v. DEPG Stroud Associates, No. 0807-CV-2021 (C.P. Monroe Co. April 2, 2024 Williamson, J.), the court denied a Motion for Summary Judgment in a “black ice” slip and fall case.

According to the Opinion, the Plaintiff pursued this slip and fall litigation against a shopping center owner and its snow removal contractor.

According to the Opinion, it had snowed in the area three (3) days before the incident. The weather on the day of the incident was clear. The record before the court indicated that the snow removal contractor had completed snow removal efforts on the day of the last storm but had not returned to the site as of the day of the incident.

The Plaintiff allegedly slipped and fell on a localized patch of black ice that was near a large snow mound that had been plowed into a parking spot. The Plaintiff sustained a primary injury of a broken wrist that required a surgical repair and other treatment.

The Defendants filed a Motion for Summary Judgment asserting that the Defendant was unable to establish that anyone had constructive notice of an alleged transient, isolated patch of black ice. 

The snow removal contractor additionally asserted that there was no causal connection between their work and the Plaintiff’s injuries. 

Judge Williamson noted that, while at first glance, it would appear that the Plaintiff fell on a localized patch of ice that was transient in nature, the deposition of the snow removal contractor’s employee was found to have “complicate[] a seemingly simple matter.” 

The court noted that the contract between the snow removal contractor and the shopping center required that the snow shall be plowed in a workman like manner from all paved areas. 

Accordingly, the court noted that it appeared that the snow removal contractor may have failed to abide by its contractual duties by piling the snow in a paved parking area/parking space. The court pointed to testimony from a representative of the shopping center who testified that it was not appropriate for the snow removal contractor to have piled snow in parking spots. It was also indicated by that representative that the snow removal contractor was never directed to, and never sought permission to, plow snow in the parking spaces. According to that representative, the snow should have instead been plowed into a grassy area outside of the parking lot.

The court noted that the Plaintiff contended that the location of the snow pile made both Defendants allegedly negligent as they should have known that snow melt and refreezing could be a risk for pedestrians in that location.

Given these material issues of fact, the court denied the Motion for Summary Judgment.

The court also addressed the arguments by both Defendants that they did not have any constructive notice that the black ice was present in the parking lot. Judge Williamson noted that black ice cases are not as easily analogous to other constructive notice cases because black ice conditions are very difficult to see as compared to other conditions. The court additionally noted that, under the applicable law, a landowner has the duty to protect an invitee against known dangers and also those dangers which might be discovered with reasonable care.

In this case, the court noted that both Defendants may have lacked constructive notice of any black ice because neither Defendant was regularly visiting the site at the time the Plaintiff fell.

In this regard it was noted by the Court that the snow removal contractor would only come to the premises on an as needed basis and that the Co-Defendant representatives were only sending an individual to check on the site once or twice a month. 

However, the court emphasized that the large snow pile was left on the parking lot surface in a parking space by the Defendants. The court stated that this snow pile would have been an open and obvious condition near the restaurant. It was also noted that the parking lot was sloped such that the snow melt would likely run into the area where other vehicles parked and pedestrians walked as opposed to the snow being kept in a remote location of the parking lot or separately on grass or dirt where it could be kept safely away from pedestrians walking areas.

The court stated that, as such, the Defendants should have been aware that, during winter months, there is a constant threat of melting and refreezing conditions, and that black ice is not a rare occurrence.

In this case, where the experts differed on what was reasonable under the circumstances, the court noted that there were issues of fact that required the case to go to the jury for this additional reason.

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

Source:  Photo by Egor Kamelev from www.pexels.com.

Premises Liability Claim Against An Out-of-Possession Landlord Allowed To Proceed

In the case of Poplawski v. Jiunta, No. 3338 CIVIL 2023 (C.P. Monroe Co. Aug. 28, 2023 Williamson, J.), the court denied a Defendant’s Preliminary Objections to a Plaintiff’s Complaint in which the Plaintiff alleged that he was injured when a large mirror fell on him in a business leased from the Defendant landowner.

The Defendant asserted that, as an out-of-possession landlord Defendant, the Plaintiff had failed to state a cause of action against that particular Defendant.

The court noted that a Complaint must not only give notice of a claim but also summarize the essential facts at issue. 

In this case, the Complaint alleged that the Defendant was the owner of the building where the Plaintiff was a customer, that a defect existed on the property in the form of an allegedly improperly secured mirror, and that the Plaintiff suffered injury when the mirror fell. 

The court found that these factual allegations were sufficiently specific to assert a negligence cause of action against the Defendant landlord.

Judge David J. Williamson
Monroe County

While Judge David J. Williamson of the Monroe County Court of Common Pleas noted that, as a general rule, a landlord out-of-possession is not liable for injuries on a lease premises unless certain exceptions applied, he could not sustain the landlord Defendant’s Preliminary Objections in this case. The court found that it remained unclear as to whether or not any of the exceptions to the rule applied. 

As such, the court allowed the case to proceed into discovery so that there could be a determination if there were any additional facts to clarify the Defendant’s role and potential responsibility.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 19, 2023).

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

Court Denies Preliminary Objections Based on Statute of Limitations Issues Where Plaintiff Made Good Faith Effort to Complete Service

In the case of Rosenwald v. Finkelstein, No. 4813-CV-2022 (C.P. Monroe Co. April 17, 2023 Williamson, J.), the court overruled Preliminary Objections filed by a Defendant to a Plaintiff’s Complaint alleging lack of proper service and the expiration of the statute of limitations.

This case arose out of a motor vehicle accident.

The Plaintiff admitted that they mistakenly attempted to complete service via a process servicer in reliance upon Pa. R.C.P. 400.1, instead of Pa. R.C.P. 400.

The court noted that Pa. R.C.P. 400.1 allows service of original process in the First Judicial District (Philadelphia) by the sheriff or a competent adult.

The court noted that, after realizing their mistake, the Plaintiff promptly filed a Praecipe to Reinstate the Complaint and engaged the local county Sheriff’s Office in Monroe County to make personal service which was completed.

Relative to the Preliminary Objections, the court first noted that the central focus of the Defendant’s Preliminary Objections was the expiration of the statute of limitations. Judge Williamson initially noted that the defense of the expiration of the statute of limitations is an affirmative defense that is not generally properly raised during Preliminary Objections.

Regardless, the court went on to review the merits of the Preliminary Objections. These objections were denied given that the Plaintiffs sought to remedy their error within days of the filing of the Preliminary Objections.

More specifically, the court found that the procedural history in the case did not suggest a course of conduct by the Plaintiff that was meant to stall the action. Rather, the record revealed that the Plaintiff had made a simple mistake and corrected the same promptly. 

The court also noted that the Plaintiffs had informed the Defendant’s insurer of the accident so that the Defendant was able to begin working on the defense of the case. 

As such, the court found that the Defendant did not suffer any harm.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 16, 2023).

Although Noted To Be "Absurd," the "Dicta" of Spencer v. Johnson Regarding the Fair Share Act Applied in a Monroe County Case

In the case of Ace v. Ace, No. 6242-CIVIL-2020 (C.P. Monroe Co. Jan. 12, 2023 Williamson, J.), the court issued an Opinion in a non-jury trial arising out of a shooting incident and following the entry of default judgments against Defendants who did not appear for the trial.  

Of note, the Court addressed the import of the dicta in the Spencer v. Johnson decision relative to the applicability of the Fair Share Act in a case in which no liability is assessed to a Plaintiff.  Although Judge Williamson noted that the "dicta" in the Spencer v. Johnson contained reasoning that seemed "absurd," he apparently felt compelled to apply it to this case.

By way of background, the court noted that default judgments had been previously entered against the Defendants and that neither Defendant appeared at the time of the non-jury trial at which the only issue was the issue of damages.

The court found that the evidence presented confirmed that the Plaintiff had met his burden of proof with regards to causation and damages. As such, the Court in this non-jury trial found it necessary to apportion liability between the two Defendants for the Plaintiff’s injuries.

Liability was apportioned by the Court to both Defendants.  No percentage of liability was assessed to the Plaintiff. 

Judge David J. Williamson
Monroe County CCP

Judge Williamson then noted that "[t]here has been a lot of confusion recently as to whether or not defendants are subject to joint and several liability for a judgment, regardless of their proportionate share of liability.  See Op. at p. 8.

In making this decision, the Court addressed the history of the Comparative Negligence Act and the Fair Share Act.

Judge Williamson noted that, when passed in 2011, the Fair Share Act was thereafter interpreted by many courts as abolishing joint and several liability in most negligence cases such that defendants would only be responsible for their percentage of negligence assessed by the jury except in those instances where the exceptions under the Act were applicable.

The court noted that, with respect to this case, the exceptions which are found at 42 Pa.C.S.A. Section 7102(a.1)(3) applied to one of the defendants in this case relative to that one defendant being found to have engaged in an intentional act and by the fact that that same defendant had been found to be more than 60% liable.

The Court noted, however, that the other Defendant did not fall under any of the exceptions.

Judge Williamson noted that whether subsection (a.1) of the Fair Share Act applied to this case "is now very much in doubt."  See Op. at p. 11.

The Court noted, "The statute heading at 42 Pa.C.S.A. Section 7102 is "Comparative negligence."  This is the legal principal (sic) covering when a plaintiff is at fault in some percentage for their own injuries, together with a defendant or defendants.  The Fair Share Act as enacted addresses the situation of a plaintiff who is contributorily negligent at subsection (a), titled as "General rule."  Subsection (a.1) addresses recovery against multiple defendants and is titled "Recovery against joint defendants; contribution."  Subsection (a.1) makes no mention of a plaintiff's contributory negligence."  See Op. at p. 11.

In this regard, Judge Williamson wrote “The legislative intent, in light of an enactment of the Fair Share Act, appears to re-affirm the general rule regarding the contributory negligence of a Plaintiff, and to add provisions regarding the responsibility for an award as to multiple Defendants. It would seem that subsection (a.1) would apply in all cases, including those where a Plaintiff has some level of fault, or no level of fault at all. Otherwise, it would seem likely that the language of subsection (a.1) would have referenced a contributorily negligent Plaintiff if that subsection only applied in instances of comparative negligence attributed to a Plaintiff. To say the legislature enacted a statute to address what was perceived as an unfair result to a big-pocket Defendant following finding of minimal fault against them for injuries caused by multiple Defendants only in cases where Plaintiff is also contributorily negligent, seems like an absurd result. It makes more sense that the legislature would have enacted this measure in all cases of multiple Defendants, even where the Plaintiff has no contributory negligence.”

That being said, Judge Williamson went on to review the contrary result noted in the dicta put forth by the Pennsylvania Superior Court in its Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021) decision. Judge Williamson noted that the Superior Court in Johnson analyzed the Fair Share Act and concluded that the legislature only intended for the joint and several provisions of subsection (a.1) to apply in cases where a Plaintiff is also found to have been contributorily negligent. Judge Williamson stated that the Superior Court in Spencer reasoned that, in all other cases, joint and several liability applied regardless of the percentage of fault of each Defendant.

In his decision, Judge Williamson noted that the rationale of the Spencer court regarding Fair Share Act “appears as dicta in the Superior Court’s decision, as it was not the direct holding” of the Superior Court.

Judge Williamson also noted that the Spencer decision “was also a panel decision, and not one made by the entire court sitting en banc.” See Op. at 13.

Judge Williamson also noted that the ruling in Spencer was not appealed to the Pennsylvania Supreme Court.

Based upon Judge Williamson’s review of the Spencer decision, he noted his belief that the Superior Court “would rule that joint and several liability applies to all Defendants without limitations of the Fair Share Act, unless the Plaintiff has some amount of contributory negligence assessed against him or her.” Id.  

Despite noting earlier in his decision that the reasoning as contained in the Spencer decision was "absurd," Judge Williamson, apparently feeling compelled to do so, stated that he would “adhere to the dicta stated in Spencer in this particular case, and find joint and several liability without the application of the Fair Share Act as between both Defendants” given that there was no finding of contributory negligence against the Plaintiff in this case.  

In other words, given that there was no contributory negligence assessed against the Plaintiff in this matter, the Fair Share Act was found not to apply, and the Plaintiff was free to collect the entire verdict from either Defendant even though one Defendant had been assessed with 70% liability and the other Defendant was hit with 30% of the liability.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 21, 2023).

ARTICLE: 2022 Year-End Review: Use of Zoom Becomes the Norm, Several Law Changes

 Here is a republication of my year-end review article outlining the important trends and cases from over the past year in Pennsylvania civil Litigation matters.  The article was published in the Pennsylvania Law Weekly on December 22, 2022 and is republished here with permission.

2022 Year-End Review: Use of Zoom Becomes the Norm, Several Law Changes

By Daniel E. Cummins

December 22, 2022, Pennsylvania Law Weekly


As the world came out of this side of the COVID-19 pandemic in 2022 with many changes, so did the practice of law in Pennsylvania. The past year has confirmed, much to the satisfaction of many lawyers, parties, witnesses and judges, that the new widespread use of advanced communication technologies (ACT) like Zoom in litigation matters is here to stay. Moreover, 2022 marked another year of changes in the law that favored plaintiffs in their efforts to secure recovery within the Pennsylvania court systems.

Here’s a look at the notable trends and decisions in Pennsylvania civil litigation law over the past year along with a review of anticipated decisions to keep an eye out for in the year ahead.

Zooming Into the Future

Without question, the use of Zoom for minor court conferences as well as for depositions, at which a witness’s demeanor and credibility can still be assessed, has fostered the interest of judicial economy and has advanced the efficiency of the practice of law as a whole.

While large big city law firms have attempted to push back against this now entrenched and favorable advancement in the practice of law, the loss of hundreds of billable hours from travel time lost due to the increased use of Zoom in civil litigation matters is not a valid reason to go back to the ways of old. Gone are the days of lawyers inefficiently and expensively billing clients for driving to a court an hour each way and then walking 20 minutes each way from a parking garage in order to attend a simple 10 minute court conference.

According to a recent Sept. 27, 2022, article by Aleeza Furman of the Pennsylvania Law Weekly titled “Rules Committees Discontinue Proposals to Expand Remote Tech in Pennsylvania Courtrooms,” in January, five of the Pennsylvania Supreme Court’s eight procedural rules committees had submitted proposals for change to rules of procedure to cover the use of ACT in their respective divisions. Regrettably, the Pennsylvania Supreme Court missed a great opportunity for uniformity across the commonwealth in this regard when all of those proposals were inexplicably discontinued in September. Hopefully, the Pennsylvania Supreme Court will see fit to override that decision and will not stand in the way of the county courts of common pleas in enacting local rules regarding the use of ACT. In 2023, look for the county common pleas courts to attempt to enact their own proposed local rules to codify the permissible scope and parameters of the continued use of Zoom for court proceedings, some of which local rules proposals are already before the Supreme Court for consideration.

Business Interruption Coverage Cases

In 2022, while the pandemic waned business interruption insurance coverage disputes continued to work their way through the court system.

Under the business interruption cases, business owners who had been shut down by governmental closure orders during the COVID-19 pandemic are pursuing business interruption coverage under the insurance policies covering their company for losses sustained as a result.

Insurance company defendants have continued to prevail with their defenses available under their policies. Several courts have ruled that, where the presence or suspected presence of the virus that causes COVID-19 at a business property did not materially alter the property in such a way as to constitute a “direct physical loss of damage,” business owners were not entitled to secure insurance benefits under their business interruption business coverage. See Hirschfeild-Louik v. Cincinnati Insurance, PICS Case No. 22-1259 (W.D. Pa. Oct. 24, 2022 Hornak, J.).

Some of those same courts also found in other cases that the business owners’ requests for coverage under these circumstances were also barred by the plain and unambiguous virus exclusions found in the policies. See In re Erie COVID-19 Business Interruption Protection Insurance Litigation, No. 1:21-mc-1 (W.D. Pa. Oct. 14, 2022 Hornak, J.). It is anticipated that these business interruption coverage cases will work their way through the courts and possibly even up the appellate ladder in 2023.

Lingering Impact of Pandemic on Litigation

In 2022, the COVID-19 pandemic also made its lingering presence known by way of parties seeking to use the pandemic in legal arguments in an effort to secure a favorable decision on a variety of civil litigation issues.

In the case of Bellan v. Penn Presbyterian Medical Center, 271 A.3d 508 (Pa. Super. Feb. 22, 2022), the Pennsylvania Superior Court rejected a plaintiff’s argument that the closure of a defendant’s medical office during the pandemic should have served as an equitable reason to allow a plaintiff more time to complete service in a medical malpractice case. In Bellan, the Superior Court affirmed a trial court’s dismissal of a plaintiff’s medical malpractice complaint with prejudice based upon service of process issues.

In the Bellan case, the record confirmed that the plaintiff did not reinstate the complaint after the initial 30-day period expired and that the plaintiff did not attempt service thereafter until five months later, which additional effort was by improper means. As such, in addition to rejecting the COVID-19-based argument by the plaintiff, the court in Bellan also found that the plaintiff failed to make a good faith effort to complete service.

The defense bar also ran into difficulty in 2022 in attempting to rely upon the pandemic to further a defense favorable argument. In at least two separate decisions over the past year, the courts of Pennsylvania have rejected arguments by defense counsel that the time that the courts were closed due to COVID-19-related judicial closure Orders should be carved out of the delay damages calculations following the entry of a verdict. See Getting v. Mark Sales & Leasing, 274 A.3d 1251 (Pa. Super. 2022); Yoder v. McCarthy Construction, May Term 2018, No. 0769 (C.P. Phila. Co. Feb. 10, 2022 Foglietta, J.).

These courts noted that the delay damages rule found at Pa.R.C.P. 238 is designed to encourage settlement negotiations between the parties. The courts essentially noted that, while the courts may have been closed, which may have resulted in some delays in the matter, nothing prevented the parties from continuing to pick up the phone or emailing one another in a continued effort to attempt to negotiate a settlement in the interim.

These courts reiterated the mandate of Rule 238 that the only time periods that may properly be carved out of the delay damages calculations are those periods of time where the plaintiff was the cause of the delay and where there is a a case under which the plaintiff secures a jury verdict that is no more than 125% a previously submitted settlement offer.

Rule Changes of Note

There were several notable rule changes issued by the Pennsylvania Supreme Court that went into effect over the past year.

On April 1, an amendment to Pa.R.C.P. 223.2, titled “Conduct of the Jury Trial. Juror Note Taking,” became effective. The rule on juror note taking was expanded to allow for jurors to now take notes during the opening statement and closing argument. The new amendments also provide that a trial court judge is no longer able to prohibit juror note taking in trials of less than two days’ duration.

On July 1, another notable rule change went into effect, this one applicable to appeals from courthouse arbitrations. This rule change amended the monetary cap noted under Pa.R.C.P. 1311.1, titled “Procedure on Appeal. Admission of Documentary Evidence.”

Under the old rule, the parties could agree that, on an appeal from a courthouse arbitration, the amount that a jury could award on the case would be up to $25,000 and that the case would proceed primarily on documents in lieu of expert testimony.

Under this new amended Rule 1311.1 handed down by the Pennsylvania Supreme Court, plaintiffs will now have the benefit of higher caps at such arbitrations. The amended rule provides that the monetary limit on arbitration appeals in civil litigation matters is the “amount equal to the jurisdictional limit of the judicial district in which the action was filed.”

Most county courts have a higher jurisdictional limit, typically amounting to $50,000. Going forward, given that there are differing jurisdictional limits in different counties, civil litigators should make a mental note to check the jurisdictional limit applicable to the particular county in which the case is pending before agreeing to a Rule 1311.1 appeal from an arbitration award.

Another plaintiff-friendly rule change that was handed down in 2022 by the Pennsylvania Supreme Court will go into effect on Jan. 1, 2023. On that date, amendments to Pa.R.C.P. 1006, 2130, 2156 and 2179 venue rules will become effective and will allow a medical malpractice plaintiff to file their lawsuit in any county where the medical provider regularly conducts its business or has significant contacts.

Given that, under the old rule, which was in place for the past 20 years, plaintiffs could only bring suit in the county where the medical treatment was completed, this amendment handed down by the Pennsylvania Supreme Court this year greatly expands the plaintiffs’ abilities to engage in favorable forum shopping for their medical malpractice claims.

Lessons in Proper Pleading

Over the past year, several notable decisions were handed down that provide lessons in proper pleading in civil litigation matters.

Lessons in complaint drafting were provided by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Gowden v. Pennsylvania Department of Transportation, No. 21-CV-3046 (C.P. Lacka. Co. March 31, 2022). In Gowden, Nealon confirmed that, under the mandates of Pa.R.C.P. 1019, each defendant is entitled to be separately apprised as to the allegations asserted against that particular defendant. As such, generalized lump sum pleadings in the body of the complaint against “all defendants” were ruled to be improper.

Nealon also held that lumping all of the defendants under a single count of liability in the complaint was improper under Rule 1019. The court held that each defendant is entitled to have the claims asserted against it set forth in separate counts in the complaint for the sake of clarity and in order to be fully apprised of the claims presented.

Another repeatedly presented lesson in proper pleading handed down by the courts over the past year confirmed that, wherever a plaintiff alleges a violation of a statute, ordinance, or regulation, the plaintiff is required to provide the citation to that statute, ordinance, or regulation in the complaint.

In the federal court case of trucking accident case Fuhrman v. Mawyer, No. 1:21-CV-02024 (M.D. Pa. June 28, 2022 Kane, J.), the plaintiff generally alleged violations of Federal Motor Carrier Safety Regulations. The court ruled that where a plaintiff asserts that a defendant violated statute or regulation, the plaintiff should cite to that statute or regulation. Given that the plaintiff’s complaint in this case was deficient in this regard, the court granted the defendant’s F.R.C.P. 12(e) motion for a more definite statement but allowed the plaintiff the right to file an amended complaint to correct the error.

A similar ruling was issued in the state courts. In the premises liability case of Comerford v. Burrier, No. 20-CV-1368 (C.P. Lacka. Co. July 22, 2022 Nealon, J.), the court ruled, under Pa.R.C.P. 1019, that if a plaintiff alleges that a defendant violated a statute or ordinance, then the plaintiff should cite that statute or ordinance in the complaint in order to provide proper notice to the defense of the claims presented. In this case, where that did not occur, preliminary objections were granted and the plaintiff was allowed the right to amend.

In 2022, defendants were also given lessons in pleading drafting. A couple of courts handed down reminders that even new matter pleadings are required to have factual allegations pleaded to support the defenses asserted and to put the plaintiff’s on proper notice of the same. See Philips v. Horvath, No. 536-CV-2021 (C.P. Monroe Co. Oct. 1, 2021 Williamson, J.); J.C.F., a minor v. Brenneman, No. 2021-SU-001714 (C.P. York Co. March 4, 2022 Strong, J.).

In the Philips case, Judge David J. Williamson of Monroe County provided the reminder that a new matter is a pleading and that all pleadings are subject to the mandates of Pa.R.C.P. 1019. One of the mandates of Pa.R.C.P. 1019 is that the “material facts on which a … defense is based shall be stated in a concise and summary form. Williamson confirmed that even new matter pleadings must have a factual specificity that enables the plaintiff to prepare a response to the same and that new matter pleadings that do not meet this mandate may be stricken in the face of preliminary objections filed by a plaintiff.

 
Allegations of Recklessness

Over the course of 2022, the trial courts continued to hand down conflicting decisions, sometimes even within the same county court, on the proper pleading of allegations of recklessness in civil litigation matters. Then, on Nov. 21, the Pennsylvania Superior Court provided much needed appellate guidance on the issue in the case of Monroe v. Camelback Ski Resort, No. 1862 EDA 2019 (Pa. Super. Nov. 21, 2022) (en banc) (per curiam). 

In a split decision, the Pennsylvania Superior Court adopted what appeared to be the rule of law followed by the minority of Pennsylvania trial courts and held that allegations of recklessness are allegations of states of mind and, as mere forms of negligence, such allegations are not to be considered independent causes of action. As such, according to the Majority in this Monroe decision, under Pa. R.C.P. 1019(b), given that allegations of recklessness are considered to be allegations of a state of mind, such allegations can be averred generally and without regard to the sufficiency of the underlying facts averred.

The Pennsylvania Superior Court also stated in footnote 6 that, with regards to the previous split of authority among the trial courts on the issue of the proper pleading of allegations, the decision in this Monroe case should serve to “remove any doubt that, so long as a plaintiff’s complaint specifically alleges facts to state a prima facie claim for the tort of negligence, and also alleges that the defendant acted recklessly, the latter state-of-mind issue may only be resolved as a matter of law after discovery has closed.”

In two separate dissenting opinions in the case, one by President Judge Emeritus John Bender and one by Judge Victor Stabile, the alternative rule was advocated, based upon 50 years of precedent, that a plaintiff should have to plead sufficient facts in order to proceed on a claim for recklessness. However, the point of view, as found in the dissenting opinions, was not adopted by the majority of the judges in the en banc decision in this case.

Therefore, under the rule enunciated by the majority in this Monroe case, a plaintiff may plead recklessness in any case whatsoever with reckless abandon and without regard to the facts presented. The majority suggested that a defendant can revisit the issue of the validity of the recklessness claims by way of a summary judgment motion after discovery has been completed.

Pleading the Fifth at a Deposition

Over the past year a couple of decisions were handed down by trial courts on the important issue of when a tortfeasor defendant can assert his or her Fifth Amendment right against self-incrimination in a personal injury civil litigation matter that arises out of the same conduct for which the tortfeasor may face criminal charges.

In the case of Sweet v. City of Williamsport, No. 20-CV-00512 (C.P. Lyc. Co. June 27, 2022 Linhardt, J.), the author of this article argued that his client should be permitted to assert his Fifth Amendment right against self-incrimination relative to efforts to depose the defendant in a fatal motor vehicle accident case.

The opposing parties asserted that the defendant should not be permitted to assert his right against self-incrimination because the defendant had already been charged with traffic citations and that, in light of the same, the defendant did not face the prospect of further prosecution under 18 Pa.C.S.A. Section 110(1)(ii).

However, in Sweet, the trial court confirmed that there was an exception under the law that allowed for further prosecutions in situations where evidence in support of an additional criminal offense was not known to the prosecuting officer at the time of the filing of the first set of charges against the defendant.

Therefore, since the defendant was found to have a reasonable basis to fear the prospect of self-incrimination by his own deposition testimony, the court found that it was not “perfectly clear” that the defendant was mistaken in this apprehension that he might incriminate himself. Consequently, the court refused to override the defendant’s assertion of his Fifth Amendment privilege and denied the motion to compel the defendant to answer deposition questions about the accident.

The court did go on to note that, if the defendant was able to secure an immunity agreement from the district attorney, then the fear of self-incrimination would be eradicated and that the defendant could then be compelled to answer questions at a later deposition.

This issue and the same result can also be found in the case of Whitcher v. Zimmerman, No. 2022-C-0339 (C.P. Leh. Co. Oct. 25, 2022 Varricchio, J.), in which the alleged tortfeasor defendant was also represented by the law firm of the author of this article.

Enforceability of the Regular Use Exclusion

In two recent cases over the past year or so, the Pennsylvania Superior Court has ruled that the regular use exclusion found in automobile insurance policies is unenforceable as it is in violation of the mandates of Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL). See Rush v. Erie Insurance Exchange, 265 A.3d 794 (Pa. Super. 2021); Jones v. Erie Insurance Exchange, No. 690 WDA 2022 (Pa. Super. Sept. 7, 2022).

The regular use exclusion basically posits that, where an insured has another vehicle regularly available for his or her use that is not covered under the applicable insurance policy, the policy will not provide UM or UIM coverage if the insured is injured while utilizing that other non-covered vehicle. The scenario typically arises where an insured is injured while driving a work vehicle and then seeks to recover UIM benefits provided under a separate personal vehicle owned by the injured party at home.

In the Rush case and the Jones v. Erie Insurance cases the Pennsylvania Superior Court essentially utilized the same rationale that the Pennsylvania Supreme Court utilized in the household exclusion case of Gallagher v. Geico, 201 A.3dd 131 (Pa. 2019). That rationale is that the regular use exclusion was unenforceable in the eyes of these Superior Court judges in that the exclusion, by excluding coverage in certain scenarios, improperly acted as a de facto waiver of UIM coverage when the MVFRL requires insurance companies to secure a knowing and written waiver of UM or UIM coverage from its insureds in order for for the waiver to be valid.

What to Watch for in 2023

There are several notable issues that are set to be decided by the Pennsylvania Supreme Court in 2023.

The above-noted case of Rush v. Erie Insurance on the enforceability of the regular use exclusion is currently pending before Pennsylvania’s highest court.

With respect to the enforceability of the household exclusion, which the Pennsylvania Supreme Court has repeatedly shot down, that issue is back before the high court in the case of Erie Insurance Exchange v. Mione. The primary question in that case is whether the household exclusion remains otherwise valid in those cases where a plaintiff had validly rejected UIM coverage in writing such that the de facto waiver of coverage argument is inapplicable.

Another anticipated decision from the Supreme Court of Pennsylvania involves the issue of whether an employer who holds a social event, such as a golf outing, should be considered to be a social host and thereby afforded the protections afforded under the law when one of the attendees is allegedly involved in a motor vehicle accident while allegedly under the influence. Keep an eye out for the court’s decision on this issue in the case of Klar v. Dairy Farmers of America.

In the upcoming year, in the case of The Bert v. Turk, the Pennsylvania Supreme Court will also address the issue of whether a punitive damages award in a personal injury matter that is many times higher than the compensatory award is constitutionally sound if the allegedly excessive amount of punitive damages is divided up among several tortfeasors.

The Pennsylvania Supreme Court’s decisions in these cases will signal whether the court will remain firmly entrenched in favor of plaintiff’s causes as it has been in recent years or will instead move back more toward the center.


Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

Judge Williamson of Monroe County Finds that Transit Authority Had No Duty Where Plaintiff Assumed Risk of Injury

In another decision out of the case of Essington v. Monroe County Transit Auth., No. 5117-CV-2020 (C.P. Monroe Co. Aug. 15, 2022 Williamson, J.), the court granted the Motion for Summary Judgment filed by the Defendant, Monroe County Transit Authority in a matter where a Plaintiff was injured after exiting a bus at a bus stop and being struck by an oncoming vehicle under nighttime conditions.

According to the Opinion, the Plaintiff alleged that the Defendant, Monroe County Transit Authority, was negligent relative to the selection of the location of the bus stop which was allegedly inherently dangerous.

The court applied the Sovereign Immunity Act, 42 Pa. C.S.A. §8542.

Under the Sovereign Immunity Act, local governmental agencies are not liable for damages unless (1) the damages would be recoverable under common law, and (2) the injury was caused by a negligent act of the local government of its agent that fell within one of the enumerated exceptions to tort immunity. 

One of the exceptions under 42 Pa. C.S.A. §8542(b)(1) includes accidents caused by the operation of any motor vehicle.

The Plaintiff based their claims for a recovery based upon an allegation that the location of the bus stop was dangerous and that the harm to the Plaintiff was a foreseeable risk.

The court agreed that the stopping of the bus at the bus stop for passengers to disembark was part of the operation of the bus that was owned by the governmental agency.

However, the court found that, based upon the evidence presented, the acts or omissions by the Monroe County Transit Authority were not the proximate cause of the decedent’s harm. While the Defendant chose the location of the bus stop, that Defendant was not responsible for the narrow shoulder, the lack of guardrails, sidewalks, lights, bus shelters, or cut-a-ways in the roadway for passengers to the cross the street.

Rather, the road was owned by PennDOT and the Monroe County Transit Authority had no control over the conditions of the roadway.

The court also noted that the record before the court also showed the decedent was wearing dark clothing during this nighttime accident and was also wearing headphones plugged into his phone when he was crossing street. 

As such, the court found that the allegedly defective conditions at the site did not cause the Plaintiff’s death. The court noted that wider shoulders, guardrails, sidewalks, lighting, a bus shelter, or a road cut-a-way would not have protected the decedent from the accident. 

Rather, the court stated, the accident occurred, according to the facts gathered during discovery, because the decedent was distracted and crossed the road in front of an oncoming vehicle under nighttime conditions. The court also noted that there was no evidence that better lighting in the area would have prevented the accident.

The court also agreed with the Defendant, Monroe County Transit Authority, that the bus stop was generally safe. There was no prior notice of any other accidents at the stop or that the bus stop was dangerous in any way.

The court additionally noted that the decedent did not have to get off at this stop. There were a total of five (5) stops in the area where the Plaintiff had disembarked. As such, the court found that the decedent assumed the risk of getting off at this particular stop, when he could have gotten off at other stops. As such, the court found that any duty that the Defendant, Monroe County Transit Authority may have had in this matter was extinguished by the actions of the decedent and his assumption of the risk of his injury.

As such, for these multiple reasons, Judge David J. Williamson of the Monroe County Court of Common Pleas granted the Motion for Summary Judgment filed by the Defendant, Monroe County Transit Authority.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 3, 2022).

Source of image: Photo by Darren Viollet from www.pexels.com.

Summary Judgment Granted in Slip and Fall Case Where Plaintiff Fell on Grass and While It Was Still Snowing

In the case of Mertira v. Camelback Lodge & Indoor Waterpark, No. 2031-Civil-2021 (C.P. Monroe Co. March 30, 2022 Williamson, J.), the court granted the Defendant’s Motion for Summary Judgment in a winter slip and fall case.

In this matter, the Plaintiff alleged that the Defendants were negligent in allowing ice and snow to remain on their property, which allegedly caused the Plaintiff to slip and fall and become injured.

Of note, the court stated that the record confirmed that there was no dispute between the parties that freezing rain and/or snow was falling as the Plaintiff entered the premises, while the Plaintiff and her family dined within the premises, and for several hours even after the Plaintiff fell.

The court also noted that, as the Plaintiff and her family left the restaurant, they chose to walk on a grassy strip and not on a sidewalk or parking lot surface.

After applying the hills and ridges doctrine, the court stated that none of the Plaintiffs or the witnesses identified any hill or ridge formed by ice or snow. The court also reiterated that it was precipitating the entire time that the Plaintiff was on the premises, including several hours after she fell.

The court also emphasized the rule of law that a property owner has no obligation to correct snow and ice conditions until a reasonable time after a winter storm has ended.

The court additionally noted that there is no duty on a property owner to clear snow or ice from grassy areas as they are not intended to be traversed by pedestrians.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 18, 2022).

Source of image:  Photo by Craig Whitehead on www.unsplash.com.

Dog Bite Case Allowed To Go Beyond Summary Judgment Stage

In the case of Wentz v. Blakeslee, No. 2646-CV-2020 (C.P. Monroe Co. Feb. 7, 2022 Williamson, J.), the court denied a Motion for Summary Judgment in an alleged dog bite case given the presence of material issues of fact.

According to the Opinion, the Plaintiffs and their minor son were guests at the home of a friend. While playing outside, the minor and other children went over to a neighboring residence to say goodbye to a dog that they knew. Apparently, the dog was ill and was set to be put down the next day.

The Plaintiff alleged that, when the minor went into the room where the dog was resting, the dog allegedly attacked and bit the child after he touched the dog.

In response to the Defendant’s Motion for Summary Judgment, the court found that there were material issues of fact regarding whether the Defendant had prior knowledge of his dog’s alleged dangerous propensities, whether the minor Plaintiff provoked the dog, and whether the Defendant could have done anything to prevent the child from having contact with the dog.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 15, 2022).

Photo by Andrew Neel on www.pexels.com.

Judge Williamson of Monroe County Addresses Propriety of Claims in Medical Malpractice Complaint

 

In the medical malpractice case of Hyman v. St. Luke’s Hosp., No. 5565-CV-2021 (C.P. Monroe Co. Dec. 16, 2021 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas denied various Preliminary Objections and a Motion to Dismiss filed by the Defendants.

The court held that the Plaintiff’s Complaint which alleged the dates of care, the places that the care was completed, identified several Defendant medical providers by name and also alleged that certain agents of the Defendant hospital and medical group were unknown to Plaintiff but known to Defendant, possessed sufficient specificity to withstand the Defendants’ Preliminary Objections challenging the Complaint.

Judge David J. Williamson
Monroe County

Judge Williamson noted that practical considerations involved with medical malpractice causes of actions weighed against a rigid application of the specificity requirements found under the Pennsylvania Rules of Civil Procedure.

The court additionally held that the Plaintiff’s claim of corporate negligence directed to the Defendant physician group and health network were not subject to a demurrer asserted by the Defendants under Pa. R.C.P. 1028(a)(4).

The Defendants, St. Luke's Physician Group and St. Luke's Health Network, asserted that the corporate negligence claims levied against them failed because the allegations established that the Defendants did not function like a hospital and that these Defendants therefore did not meet the standard for a finding of liability in this respect.

In this regard, the court applied the functional analysis test noted under the cases of Thompson v. Nason, 591 A.2d 703 (Pa. 1991) and Scampone v. Highland Park Care Center, LLC, 570 A.3d 582 (Pa. 2012), and found that the claims asserted by the Plaintiff against these Defendant entities satisfied the types of allegations necessary for a plaintiff to proceed on a corporate negligence claim.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 18, 2022).

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

New Matter Defense Stricken for Lack of Factual Specificity

In the case of Philips v. Horvath, No. 536-CV-2021 (C.P. Monroe Co. Oct. 1, 2021 Williamson, J.), the court found that the Defendant’s Answer and New Matter, which attempted to assert that the Plaintiff’s own contributory negligence was a factor in this dog bite case, failed for lack of specificity where the Defendant did not allege enough facts to put the Plaintiff on notice as to what purported misconduct and/or negligence on the part of the Plaintiff was at issue.

According to the Opinion, the Plaintiff was an Assistant Fire Chief who had responded to a 911 call regarding a potential house fire. When the Plaintiff entered the premises, he was allegedly attacked by a pit bull.

In filing Preliminary Objections to the Defendant’s New Matter allegations, the Plaintiff asserted that the facts alleged in the New Matter only indicated that the Plaintiff had come into contact with the dog but did not put the Plaintiff on notice of any alleged misconduct on the part of the Plaintiff that allegedly caused the dog to attack the Plaintiff.

The court agreed with the Plaintiff that the Defendants’ allegations were not factually sufficient to support claims of contributory negligence.  In so ruling, Judge Williamson emphasized that Pennsylvania is a fact-pleading state under the mandates of Pa.R.C.P. 1019(a).

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 23, 2021).

Source of image:  Photo by Nikola Cedikova on www.pexels.com.

Motion For Summary Judgment Entered in Favor of PennDOT in Pothole Case

In the case of Teixeira v. Com. of Penna., Dept. of Transp., No. 7917-CIVIL-2019 (C.P. Monroe Co. Aug. 5, 2021 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted the Defendant’s Motion for Summary Judgment in a matter involving a motorcycle accident.

The Plaintiff motorcyclist alleges that he hit a large pothole on Interstate Route 80 in Monroe County as a result of which he crashed and sustained multiple injuries.

The court noted that the issue before it concerned the pothole exception to the sovereign immunity allowed under the Political Subdivision Tort Claims Act, 42 Pa. C.S.A. §8522(b)(5). The Commonwealth of Pennsylvania asserted that it was protected from civil suits based in tort under the doctrine of sovereign immunity unless one of the ten narrow exceptions to the law apply. As noted, the Plaintiff was arguing the potholes and other dangerous conditions exception to the Act.

The court noted that a Plaintiff seeking to utilize this exception must prove that there was sufficient prior written notice provided to the Commonwealth of Pennsylvania of the allegedly dangerous condition.

Here, the court accepted PennDOT’s argument that the Plaintiff failed to show that there was actual written notice provided to PennDOT of the pothole in question. 

The court noted that, while the record revealed that various complaints were called in by members of the public and reduced to writing by the PennDOT call center, those complaints identified problems with Route 80 in general and varied widely in terms of complaints with respect to the area where potholes existed. 

The court additionally noted that nothing was submitted in actual writing by the actual complainants themselves to PennDOT. 

The court additionally confirmed that none of the complaints identified in the records reference the exact pothole that was involved in this accident. Nor were any of the complaints specific to the mile marker at the location of the accident. Rather, the complaints were generally applied to Route 80 which stretches at least 20 miles through Monroe County.

As such the court found no genuine issue of material fact was presented in this case on the question at issue of whether any actual notice of the pothole in question was provided to PennDOT prior to the subject incident. As such, the court granted PennDOT’s Motion for Summary Judgment.


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

Summary Judgment Granted in Dog Bite Case Due To Lack of Proof of Prior Vicious Propensities

In the case of MR v. Bunting, No. 6856-CV-2019 (C.P. Monroe Co. June 8, 2021 Williamson, J.), the court granted summary judgment in favor of the Defendants on the Plaintiff’s negligence per se and negligence claims arising out of a dog bite incident. The court also granted summary judgment on the claim for punitive damages.

According to the Opinion that the minor Plaintiff was allegedly bitten by a dog at a birthday party. There was an allegation that, following the incident, the dog owner allegedly told the guardian of the minor that the dog had bitten someone before.

After the case proceeded through discovery, the dog owner filed a Motion for Summary Judgment. 

With regards to the allegations that the dog owner had violated the Pennsylvania Dangerous Dog Law and was, therefore, negligent per se, the court found no evidence in the record that the law had been violated under the facts presented. 

The court noted that the fact that the dog owner allegedly mentioned that the dog had bitten someone in the past was not sufficient in and of itself. Rather, Judge Williamson noted that the evidence had to show that the dog had previously caused severe injury without provocation and that there was no evidence of this in the record.

The court also noted that liability only existed under theory of negligence per se if the owner knew or had reason to know of the animal’s dangerous propensities. Judge Williamson stated that there was no evidence in the record regarding the nature and circumstances of any alleged prior bite.

Although there was evidence that the dog would growl in the past, the record revealed that this behavior was more consistent with play growling, rather than aggressive growling. The court found that the Plaintiff did not provide any evidence that the dog had vicious tendencies.

As such, summary judgment was granted.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 27, 2021).

Source of image (not of the dog in question):  Photo by Karsten Winegeart on unsplash.com.