The Beginning of the End? Pennsylvania Supreme Court Agrees to Address Whether the Gist of the Action Doctrine Remains Valid Law

According to a July 14, 2026 article by Riley Brennan in The Legal Intelligencer entitled "Pa. High Court to Revisit 'Gist of the Action' Doctrine for Legal Malpractice Cases, the Pennsylvania Supreme Court has agreed to address the ongoing validity of the doctrine in the case of Poteat v. Asteak.

Pennsylvania Supreme Court

As Tort Talkers may recall, my son, Daniel, Jr. (now about to enter his third year at Virginia Law where he is an Articles Editor on the Virginia Law Review) and I recently published a timely article in the April, 2026 edition of the Pennsylvania Bar Association Quarterly entitled "The Rise and Fall of the Gist of the Action Doctrine," in which the history of the doctrine was analyzed and and predictions were made regarding possible further developments in the law with respect to the doctrine.

We again thank Professor Emeritus Robert E. Rains of the Dickinson School of Law and Editor of the Quarterly for selecting this article for publication and for his excellent editorial assistance.

Here is the prediction from the end of the article with regards to the future of the gist of the action doctrine:

Thus, Swatt and Poteat appear to herald the beginning of the end of the gist of the action doctrine as a defense in Pennsylvania civil litigation matters. If and when the Pennsylvania Supreme Court has another opportunity to consider the validity of the gist of the action doctrine, it can be reasonably anticipated that the Supreme Court will finally swat the remaining mist of this doctrine into oblivion as contrary to the Pennsylvania Rules of Civil Procedure. Moreover, most of the current Justices on the Pennsylvania Supreme Court will also likely see the purpose of the gist of the action doctrine in maintaining the conceptual differences between tort and contract actions as less important than allowing injured parties to explore all potential theories of recovery available under the law.

With the anticipated downfall of the gist of the action doctrine, negligence and breach of contract will no longer be viewed as causes of action encompassing different types of wrongs that have to be kept apart. Rather, these types of claims will be viewed as parts of a menu of numerous options from which plaintiffs may select when deciding how to proceed with a lawsuit, including the option of proceeding with both types of claims in a single lawsuit. The anticipated total eradication of the defense of the gist of the action doctrine will therefore serve to expand the avenues of recovery for injured parties in Pennsylvania. However, until such time that the Pennsylvania Supreme Court again addresses the viability of the gist of the action doctrine and provides clarity and guidance, the courts and members of the bar will be left to grapple with implications of the Superior Court’s recent decisions on the doctrine.

To view the entire article, please click this LINK to the Tort Talk post on the article and then click the Link within that post to view the article.

U.S. Supreme Court Decision Ruling that Delaware Rule Requiring Certificate of Merit for Professional Liability Claims Has Implications In Pennsylvania Matters

In the United State Supreme Court case of Berk v. Choy, No. 24-440 (U.S. Jan. 20, 2026) (Op. by Barrett, J.), the United States Supreme Court held that a Delaware law requiring a Plaintiff suing for medical malpractice to provide an affidavit from a medical professional attesting to the merit of the claims presented in the law suit conflicts with valid Federal Rule of Civil Procedure and, as such, does not apply in federal court proceedings.

According to commentators, this United States Supreme Court decision can be read as establishing that Pennsylvania's requirements for a Certificate of Merit in professional negligence in state court matters would not apply in the federal courts of Pennsylvania.

As such, these commentators have suggested that, in those cases where a plaintiff can establish diversity jurisdiction in order to get into federal court, those plaintiffs may opt to proceed in federal court where they need not secure and produce a Certificate or Merit before proceeding with a professional negligence claim, such as a medical malpractice claim or a legal malpractice claim.   

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

I send thanks to Attorney Thomas J. Foley, III of the Foley Law Firm in Scranton, PA for bringing this decision to my attention.

Source of image:  Photo by Fine Photographics on www.pexels.com.

Attorney's Sexual Misconduct Towards a Client Found to Constitute Viable Basis for Legal Malpractice Claim

In the case of J.C. v. Fanucci & Kolcharno, No. 2022-CV-3490 (C.P. Lacka. Co. Feb. 4, 2025 Nealon, J.), the court addressed various Preliminary Objections filed in a case where a client sued her former attorney and his law firm for wanton and reckless legal malpractice, intentional infliction of emotional distress, breach of fiduciary duty, along with claims for vicarious liability, negligent hiring, supervision, and retention relative to claims that an attorney at the law firm pressured and extorted the client to engage in sexual activity with him as a condition of his continued representation of the client relative to criminal court matters. 

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas, in a 56 page Opinion, held, in part, that an attorney’s sexual misconduct toward a client constituted a viable basis for a legal malpractice action.

The court rejected the defense claims that the Plaintiff would need to have alleged that she had been found innocent in her underlying criminal matter in order to pursue legal malpractice claims against her attorney. The court rejected that argument, in part, because the Plaintiff did not claim that she had been wrongfully convicted relative to the underlying matter.

In this decision, the court overruled the attorney’s Preliminary Objections to the Plaintiff’s claim of malpractice, breach of fiduciary duty, and with regard to the claims of intentional infliction of emotional distress.

The court additionally overruled objections by the Defendant attorney’s law firm with respect to the Plaintiff’s claims against the firm for vicarious liability and negligent hiring.

The court additionally allowed the Plaintiff to proceed with the claims of recklessness and punitive damages. In ruling in this regard, the court cited, in part, to a Pennsylvania Bar Quarterly article by Daniel E. Cummins that provided an overview of recent Pennsylvania jurisprudence on the viability of claims of recklessness in personal injury matters based on claims of negligence.

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

Legal Malpractice Claim Found to be Barred By Statute of Limitations

In the case of Am. Mushroom Coop. v. Saul Ewing Arnstein & Lehr, LLP, No. March Term, 2020 No. 02211 (C.P. Phila. Co. Aug. 17, 2022 Padilla, J.), the court issued a Rule 1925 Opinion requesting that the Pennsylvania Superior Court affirm the trial court's previous Order granting a Defendant’s Motion for Judgment on the Pleadings in a legal malpractice claim.

The court found that the claims presented by the Plaintiff in this action were barred by the statute of limitations.

After reviewing the record before it, the court held that the Plaintiffs’ malpractice claims were time-barred since the Plaintiff first knew or should have known that they had been allegedly injured by allegedly erroneously legal advice back in 2004.

The case revolved around the Plaintiff’s execution of a consent judgment in a Department of Justice investigation of the business practices of the Plaintiff that were purportedly based upon the same legal advice.

As noted, the court found that the Plaintiff’s claims were time-barred and entered judgment on the pleadings in favor of the Defendant law firm.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 29, 2022).

Motion To Dismiss Granted in Legal Malpractice Claim

In the Nupson v. Schnader Harrison Segal & Lewis, LLP, No. 18-2505 (E.D. Pa. Sept. 30, 2022 Alejandro, J.), the court addressed the statute of limitations in a legal malpractice claim.

In this matter, the court found that the Plaintiff was on notice of her legal malpractice claims by the time her new attorney indicated that the Plaintiff had been allegedly harmed by the Defendants’ prior conduct and where Plaintiff had filed litigation asserting claims arising from that alleged conduct. In light of these facts in the record, the court found that the Plaintiff’s later legal malpractice claim was untimely.

As such, the Defendant law firm’s Motion to Dismiss was granted.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 20, 2022).

Source of image:  Photo by Melinda Gimpel on www.unsplash.com.
 

Supreme Court of Pennsylvania Allows Legal Malpractice Claim Based Upon Scope of a Release to Proceed

In the case of Khalil v. Williams, No. 24 EAP 2021 (Pa. July 20, 2022) (Maj. Op. by Todd), the Pennsylvania Supreme Court addressed the issue of whether the Plaintiff’s legal malpractice claims against her former attorneys were barred under the Pennsylvania Supreme Court’s previous decision in the case of Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 587 A.2d 1346 (Pa. 1991), which held that a Plaintiff could not sue his or her attorney on the basis of the adequacy of a settlement to which the Plaintiff had agreed, unless the Plaintiff alleged that the settlement was the result of fraud.

After reviewing the record on appeal before it in this case, the Pennsylvania Supreme Court ruled that the Plaintiff’s Complaint demonstrated that the Plaintiff was not merely challenging the amount of her settlement, but rather was alleging that the attorneys provided incorrect legal advice regarding the scope and effect of the Release presented by the insurance carrier. As such, the Pennsylvania Supreme Court held that the prohibition set forth in the Muhammad case on legal malpractice lawsuits based upon the adequacy of settlements was not implicated by the record in this case.

Anyone wishing to review a copy of the Majority Opinion by Justice Todd for this decision may click this LINK.

The Concurring Opinion by Justice Wecht may be viewed HERE.

The Concurring Opinion by Justice Mundy may be viewed HERE.

Source of image:  Photo by Andrea Piacquadio from www.pexels.com.

THE 2021 TORT TALK TOP TEN

10.  Regular Use Exclusion

In a case of appellate first impression of Rush v. Erie Insurance Exchange, No. 1443 EDA 2020 (Pa. Super. Oct. 22, 2021), the Pennsylvania Superior Court affirmed a Northampton County Common Pleas Court decision in a declaratory judgment action and held that the regular use exclusion found in motor vehicle policies is unenforceable because it violates the Motor Vehicle Financial Responsibility Law (MVFRL). This issue appears to be on its way up to the Pennsylvania Supreme Court.

Click HERE to view the Tort Talk Blog post on this case.


9.  Attorney Malpractice

In the case of Clark v. Stover, 242 A.3d 1253 (Pa. Dec. 20, 2020), the Pennsylvania Supreme Court adopted the "occurrence rule" for attorney malpractice cases and held that the statute of limitations in a legal malpractice claim begins to run when the alleged malpractice occurs.

The court rejected the "continuous representation rule" which holds that the statute of limitations in a legal malpractice claim would begin to run when the legal representation was concluded.

Please click HERE to view the Tort Talk Blog post on this case.



8.   COVID-19 Business Interruption Coverage Cases

Over the past year, many state and federal trial court judges grappled with coverage actions concerning whether the COVID-19 related governmental orders requiring businesses to close their doors supported Business Interruption coverage claims. There were mixed results, but a majority of the court decisions favored the insurance carriers with findings that the coverage provisions were not implicated and/or that exclusionary language within the policies were implicated.

To review Tort Talk Blog posts on these types of cases, please click HERE.



7.  Sudden Emergency Doctrine Still Valid in PA

In the case of Graham v. Check, 243 A.3d 153 (Pa. Dec. 22, 2020)(Op. By Wecht, J.), the Pennsylvania Supreme Court reaffirmed the continuing validity of the sudden emergency doctrine for motor vehicle accident matters in Pennsylvania. However, the Supreme Court cautioned that the application should not be automatic and depends on appropriate facts being present for the doctrine to apply.

The Tort Talk Blog post on this decision can be viewed at this LINK.

My Pennsylvania Law Weekly article analyzing the impact of the Graham v. Check decision can be viewed HERE.



6.  Medical Malpractice

In the case of Leadbitter v. Keystone Anesthesia Consultants, 256 A.3d 1164 (Pa. 2021), much to the surprise of many, the Pennsylvania Supreme Court issued a defense-favorable decision and held that Peer review "proceedings" or "records" were not discoverable under the Pennsylvania Peer Review Protection Act.

To view the Tort Talk Blog post on this case, please click this LINK.



5.   Internet-Based Defamation Claims Can Be Filed Anywhere

In the case of Fox v. Smith, No. 39 EAP 2019 (Pa. Nov. 17, 2021) (Op. by Saylor, J.), the Pennsylvania Supreme Court addressed whether the standards governing the selection of an appropriate venue of litigating libel or defamation claims grounded on newspaper publications should also be applied to causes of action premised upon internet-based publications.

The Court ultimately ruled that internet-based defamation claims can be filed anywhere the defamatory statements were viewed and understood as defamatory.

The Tort Talk Blog post on this case can be viewed LINK.



4.  Allegations of Recklessness

Over the past year, trial court judges across Pennsylvania, and some even in the same county, have split over the types of factual allegations that may or may not be necessary to support an allegation that a tortfeasor defendant acted recklessly during the course of a personal injury-causing event.

Some more liberal trial court judges allow for allegations of recklessness to be pled with reckless abandon and allow such allegations in any case whatsoever, regardless of the underlying facts involved. These judges rely upon dicta from one appellate court decision along with a tortured reading of the law to conclude that, since an allegation of recklessness is an allegation as to a defendant's state of mind and since allegations as to a party's state of mind may be generally pled under Pa.R.C.P. 1019, then it must be that allegations of recklessness may also be generally pled.

A majority of other trial court judges follow the long-standing maxim espoused in numerous Pennsylvania appellate court decisions that Pennsylvania is a fact-pleading state and that, therefore, allegations of outrageous facts are necessary to state a claim of recklessness to thereby potentially open the door to a punitive damages claim.

Look for my article in the upcoming January edition of the Pennsylvania Bar Quarterly outlining both sides of this issue and noting that further appellate guidance is needed to put the issue to rest.

To view at least 63 Tort Talk Blog posts on cases involving allegations of recklessness, please click this LINK.



3.  Household Exclusion Finally Dead?

In 2020 and 2021, there remained questions as to whether the Household Exclusion was still a valid exclusion after the Pennsylvania Supreme Court's decision in Gallagher v. GEICO.

Then in the 2021 case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. Aug. 17, 2021), the Pennsylvania Supreme Court again answered questions on issues surrounding inter-policy stacking and the household exclusion.

After finding that the stacking waiver form at issue in this case was invalid as applied to inter-policy stacking claims, the Pennsylvania Supreme Court went on to rule that the policy’s household exclusion was also unenforceable absent a valid written waiver of inter-policy stacking, because the language of that exclusion was incompatible with stacking. In this regard, the court cited to its previous decision in the case of Craley v. State Farm Fire and Casualty, 895 A.2d 530 (Pa. 2006).

The court in Donovan also reiterated its previous decision in Gallagher v. GEICO and again ruled that the household exclusion provision is invalid since it acted as a de facto waiver of stacking, when Pennsylvania law requires the carrier to secure a written waiver of stacked coverage to be secured from an insured.



2.  Spencer v. Johnson (The Fair Share Act)

The Fair Share Act was passed ten years ago in 2011 and changed the law of Pennsylvania to hold that each Defendant should only have to pay its own percentage of responsibility for causing an injury (unless a Defendant is found to be 60% or more responsible, in which case that Defendant could be made to pay the entire verdict).

For the last decade, there has not been any significant dispute or litigation over the application of that Act.

Then comes along the decision in Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), in which the Pennsylvania Superior Court raised the question of whether the Fair Share Act applies to those cases where there is an innocent Plaintiff who bears no percentage of responsibility for the happening of the accident.

Here is a LINK to the Tort Talk post on this case.

Here is a LINK to my Pennsylvania Law Weekly article on this case.

The question has become whether, under the wording of the Fair Share Act, should an innocent Plaintiff be allowed to argue that the Fair Share Act does not apply such that he or she should therefore be able to recover the entire verdict against any Defendant, even if that Defendant is found to only be 1% responsible.

The analysis of this question in Spencer v. Johnson appears to be dicta and the result of an Advisory Opinion (only 2 of 3 Superior Court Judges on the panel participated in the decision) and, as such, this important question appears to remain to be finally answered by another appellate court.  But the tone has been set.



1.  The Continuing Impact of the COVID-19 Pandemic on the court system and practice of law

While the hope in 2021 was that the COVID-19 Pandemic would wane, it unfortunately did not. As such, Zoom depositions and court arguments remained the norm and trials proceeded under social distancing safety protocols.

Court officials at all levels have begun to talk about amending the various Rules of Court to address the ongoing use of Advanced Communication Technology (ACT) going forward and even after the Pandemic ends.







Trends to Watch in 2022:

-Continuing use of Advanced Communication Technology to keep civil litigation matters moving forward.

-Continuing disputes over the application of the Fair Share Act in cases where there is an innocent Plaintiff (i.e., a guest passenger plaintiff, a plaintiff hit in a crosswalk, a plaintiff under anesthesia).

-Continuing split of authority over whether outrageous factual allegations are required to state a claim of recklessness in a personal injury Complaint.

-Continuing use of alternative dispute resolution services to resolve matters outside of the courtroom, including by way of Zoom Arbitrations and Zoom Mediations.

Bring Your Case To A Close in 2022

(570) 319-5899

dancummins@CumminsLaw.net

ARTICLE: Plaintiffs Have Another Banner Year in Civil Litigation, Part 2: General Civil Litigation

Below is a copy of an article of mine that was recently published in the Pennsylvania Law Weekly.  It is republished here with permission.

Plaintiffs Have Another Banner Year in Civil Litigation, Part 2: General Civil Litigation

By Daniel E. Cummins | December 16, 2021

Daniel E. Cummins, Clarks Summit firm Cummins Law. Courtesy photo



The year 2021 proved to be another banner year for the plaintiffs bar in terms of securing important civil litigation court decisions that favor plaintiffs’ causes, some of which overturned decades of precedent going the other way. The concerted, and admirable, effort of the plaintiffs bar in continually fighting their good fight and in banding together to support certain judicial candidates to ensure that they make it up onto the bench continues to pay off in spades and in settlements. In essence, as confirmed by the decisions reviewed below, where there is a will, there is indeed a way.

This first part of the article, which previously appeared in this paper, reviewed the important decisions and trends in the automobile insurance law arena over the past year. This second part of the article will review the notable decisions in the area of general civil litigation law.

Fair Share Act

The Pennsylvania Superior Court recently issued another notable plaintiff-friendly decision in 2021, this one with respect to the Fair Share Act. Although wordy and filled with dicta, the decision foreshadows ongoing litigation on the parameters of the act after a decade of relative quiet since the Fair Share Act was passed.

In the case of Spencer v. Johnson, 2021 Pa. Super. 48 (Pa. Super. March 18, 2021), a plaintiff pedestrian alleged personal injuries as a result of being struck by a vehicle operated by an individual who was driving his wife’s company car while allegedly under the influence of alcohol.

The jury handed down a verdict in favor of the plaintiff in the amount that was just shy of $13 million dollars. The jury assessed comparative negligence among three defendants and found that the plaintiff-pedestrian was innocent.

The appellate court accepted the plaintiff’s argument that the wife’s negligence should be imputed to the company’s negligence because the wife-employee was acting within the scope and course of her employment with the company relative to the accident. The Superior Court reversed and remanded the case to the trial court for further proceedings with regard to a molding of the verdict with regards to adding the percentage of responsibility assessed to the wife with that assessed to the defendant company, the sum of which amounted to a figure of more than 60%. Under the Fair Share Act, the plaintiff was therefore permitted to secure the entire verdict from the deep pocket defendant company.

The Superior Court also went on to note that, “assuming arguendo,” the company was not vicariously liable for the action of the wife and those defendants were instead required to be treated separately, the Fair Share Act would not have applied because the act only applies to cases in which comparative negligence has also been assessed to the plaintiff as well.

The plaintiffs bar has read this portion of the opinion to suggest that, where there is no finding of comparative negligence on a plaintiff, the Fair Share Act does not apply and the case reverts back to the old joint and several law under which a plaintiff could recover the entire verdict against any defendant even if that defendant was only found to be 1% responsible.

In contrast, the defense bar has asserted that this part of the Spencer v. Johnson Opinion appears to be dicta and should only be considered to be more in the form of an advisory opinion by the Superior Court on the scope and reach of the Fair Share Act given that one judge on the Superior Court panel sat out of the decision.

Look for the applicability of the Fair Share Act to remain a hot issue in the years to come.

Attorney Malpractice

In addition to being plaintiff-friendly in 2021, the Pennsylvania Supreme Court was also attorney-friendly over the past year or so. In the attorney malpractice case of Clark v. Stover, 242 A.3d 1253 (Pa. Dec. 22, 2020), the Pennsylvania Supreme Court was requested by the plaintiff to adopt the continuous representation rule, which is applicable in a number of other jurisdictions, to toll the statute of limitations.

Under the continuous representation rule, the applicable statute of limitations would not begin to run until the date on which the defendants’ representation was terminated.

In a decision that benefits attorneys, the court refused to adopt the continuous representation rule and instead held that the occurrence rule would be followed in Pennsylvania. The “occurrence rule,” holds that the statutory period commences upon the happening of the alleged breach of duty by the attorney.

As such, the statute of limitations may begin to run earlier in the underlying case, depending upon when the breach occurs. This may lead to some malpractice plaintiffs finding that their malpractice claims against their attorneys have become time barred by the time the plaintiff decides to take action.

Medical Malpractice

In addition to issuing a notable decision in the arena of attorney malpractice claims, the Pennsylvania Supreme Court also weighed in on issues arising in medical malpractice matters over the past year.

The pendulum has shifted so far to the plaintiffs’ side in terms of their recent successes in the courts on important civil litigation questions of law that a decision by the Pennsylvania Supreme Court that went against the wishes of the plaintiffs bar came as a surprise to many.

In the case of Leadbitter v. Keystone Anesthesia Consultants, No. 19 WAP 2020 (Pa. Aug. 17, 2021), the Pennsylvania Supreme Court issued a long-awaited decision relative to the scope of the Peer Review Protection Act in medical malpractice matters. The central question before the court was the extent to which a defendant doctor’s credentialing file was subject to discovery.

The court in Leadbitter noted that the privilege from discovery afforded by the Peer Review Protection Act only applies to a “review committee,” which is a committee engaging in peer review. However, the Pennsylvania Supreme Court agreed with the hospital’s argument that a credentials committee is a “review committee” for purposes of the Peer Review Protection Act to the extent that it reviewed the quality and efficiency of care provided by a healthcare practitioner.

The Pennsylvania Supreme Court additionally held that the Federal Healthcare Quality and Improvement Act of 1986 protected from disclosure the responses provided by the National Practitioner Data Bank to queries submitted to it.

On the basis of this ruling, the court held that the hospital’s credentialing file for one of the defendant doctors was protected from discovery by the above two acts. This decision has been viewed as a win for medical malpractice defendants and hospitals conducting credentialing activities as it allows those parties to secure candid feedback from physician peers on their colleague’s performance, quality and safety without fear that such feedback would have to be produced in discovery.

Covid-19 Business Interruption Coverage Claims

Over the past two years there has continued to be a number of business interruption coverage actions being pursued by businesses that were forced to close due to governmental COVID-19 pandemic orders.

Most of the court decisions in this regard have found that no coverage is warranted under the applicable business insurance policies as such policies only provided coverage for losses incurred for a direct physical loss or damage to the covered property, and the pandemic had caused no such specific physical damages. See e.g., Penn Asian Senior Services v. Selective Insurance, No. 20-4919 (E.D. Pa. Sept. 30, 2021 Pratter, J.).

The courts have also routinely rejected arguments for coverage based upon the civil authority coverage provisions under the policies. The courts have generally noted that, although the COVID-19 shutdown orders were issued by a civil authority, those shutdown orders were motivated by the pandemic, meaning that the plaintiff’s loss of income was at least indirectly caused by a virus for which coverage was otherwise excluded. See Star Buick v. Sentry Insurance, No. 5:20-CV-03023 (E.D. Pa. May 26, 2021 Leeson, J.).

More specifically, a number of state and federal courts have also found that business interruption coverage was precluded by the application of virus exclusions contained in the policies. See Infinity Real Estate v. Travelers Excess & Surplus Lines, No. 2:20-CV-06398-CMR (E.D. Pa. Sept. 13, 2021 Rufe, J.)

Isolated successes have been realized in this area of the law by businesses whose policies do not have a virus exclusion. In Brown’s Gym v. The Cincinnati Insurance, No. 20-CV-3113 (C.P. Lacka. Co. July 13, 2021 Nealon, J.), the court noted that the policy at issue did not have a virus exclusion that would serve to preclude coverage.

The court in Brown’s Gym also found that the business in this case had alleged that the COVID-19 virus was actually found to be present on its premises. Judge Terrence R. Nealon of the Lackawanna County Common Pleas Court noted that, under a “physical contamination” theory recognized in Pennsylvania, invisible sources such as ammonia fumes, e-coli bacteria, carbon monoxide, gas vapors, lead intrusion, odor from cat urine, or methamphetamine cooking, which made a covered premises unusable, unsafe, or unfit for its intended use have been found to be conditions that could constitute “physical loss of damage” under the terms of a commercial insurance policy.

Nealon went on to opine that, in the wake of the coronavirus pandemic and the related government closure orders, “better reasoned decisions” from across the country have applied the physical contamination theory to implicate business interruption insurance coverage where the insured asserts that the COVID-19 virus was actually present on the covered property, and thereby caused the insured premises to become uninhabitable, inaccessible, or unduly dangerous to use as a result.

Accordingly, based upon the plaintiff’s allegations in the Brown’s Gym case asserting the continuous presence of the COVID-19 virus on its property that allegedly rendered the property unsafe, inaccessible and unfit for its intended use, the court found that the business had sufficiently alleged a “direct physical loss of damage” to its property under the “physical contamination” theory to proceed forward on its business interruption coverage claim.

Nealon also ruled in a similar fashion in his more recent decision in the case of SWB Yankees v. CNA Financial, No. 20-CV-0155 (C.P. Lacka. Co. Aug. 4, 2021 Nealon, J.).

It is anticipated that the COVID-19 virus will continue to make its presence known in these types of coverage disputes in the years ahead with varying results, depending upon the policy language at issue in any given case.

Conclusion

As the above review of the highlights (and lowlights) from the past year in civil litigation shows, the pendulum has certainly swung in favor of the plaintiffs bar in terms of court decisions. Plaintiffs attorneys will likely continue to push their important issues up the appellate ladder in the hopes of continued success in these plaintiff-friendly times. On the defense side, in addition to continuing to litigate many of these important issues, the defense bar may be wise to also increase efforts to effectuate changes in the law through the Legislature as a means to counter the adverse rulings in the court system.

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.

Copyright 2021. ALM Media Properties, LLC. All rights reserved.

Occurrence Rule under Statute of Limitations Applied in Legal Malpractice Suit

In the case of Keystone Custom Homes, Inc. v. Appel & Yost, LLP, No. 2015-07661-PL (C.P. Chester Co. Dec. 18, 2020 Tunnell, J.), the court, sitting without a jury, ruled in favor of the Defendant law firm in a legal malpractice claim.

Of note, the court found that the Plaintiff’s legal malpractice claim, in which it was alleged that the Defendants negligently prepared a public offering statement for them, was barred under the occurrence rule as the statute of limitations period had begun to run upon the happening of the alleged breach of duty, that is, when the Defendant prepared and provided them with an allegedly erroneous public offering statement back in 2007.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 4, 2021).

Pennsylvania Supreme Court Declines to Adopt Continuous Representation Rule for Attorney Malpractice Claims

In the case of Clark v. Stover, No. 2 MAP 2020 (Pa. Dec. 22, 2020) (Op. by Saylor, J.), the Pennsylvania Supreme Court was requested by the Plaintiff to adopt the continuous representation rule, which is applicable in a number of other jurisdiction, to toll the statute of limitations in this professional liability action based upon alleged attorney malpractice. In the end, the court denied the Plaintiff’s request that the Court adopt this rule. 

The Court reasoned that the statute of limitations are legislative in nature and that any change in the law should come from the general assembly.

At the trial court level of this case, the court found that the Plaintiffs in this legal malpractice claim were aware of the alleged negligence for more than four (4) years before they filed their malpractice suit. As such, the lower court found that the claims were time-barred by the two (2) year statute of limitations applicable to negligence claims as well as the four (4) years statute of limitations applicable to any contract claim.

At the Superior Court level, that court had enforced the “occurrence rule,” which holds that the statutory period commences upon the happening of the alleged breach of duty, which amounts to either a duty of care under the negligence doctrine or, any duty from an agreement for purposes of contract law. The Superior Court had refused the Plaintiffs’ request that that court adopt a continuous representation rule, under which the applicable statute of limitations would not begin to run until the date on which the Defendants’ representation was terminated.

As noted, the Pennsylvania Supreme Court rejected the request that it adopt the continuous representation rule.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 5, 2021).

Court Finds No Jurisdiction Over Legal Malpractice Claims

In the case of Dakota Oil Processing, LLC v. Hayes, No. 2018-10444-CT (C.P. Chester Co. April 16, 2020 Tunnell, J.), the court dismissed the Plaintiff’s legal malpractice Complaint after finding that neither general nor specific personal jurisdiction existed over the Defendants.

According to the Opinion, the Plaintiff was a limited liability company formed to develop and operate a crude oil refinery in North Dakota. In order to raise money in this endeavor, the Plaintiff entered into a collateral transaction loan with a venture financing firm. After the Plaintiff allegedly lost a $2.5 million dollar escrow payment, it filed this lawsuit for legal malpractice. 

The court noted that, generally speaking, it could exercise personal jurisdiction over a Defendant based upon either general jurisdiction or more specific, case-linked jurisdiction. 

Under the rules pertaining to general jurisdiction, a party can be sued in any state court for any claim regardless of where the underlying actions of the claim occurred where a Defendant can be found to be “at home” in the forum state. Under issues pertaining to specific jurisdiction, a party could be hailed into court on issues deriving from or connecting with the very controversy that established jurisdiction.

The court noted that one Defendant was a resident of Virginia and did not consent to jurisdiction in Pennsylvania. Another Defendant was a partnership formed in another state and which had also not consented to personal jurisdiction in Pennsylvania. The court ruled that none of the Defendants at issue were registered to do business in Pennsylvania and did not carry on any continuous or systematic part of its business in Pennsylvania. As such, no general personal jurisdiction was found. 

Under the issues of specific personal jurisdiction, the court found that no Defendants had purposefully availed themselves of the privilege of conducting business within Pennsylvania or purposefully directed its conduct in Pennsylvania. The court also noted that, the Plaintiff’s claims did not arise out of or relate to any activities by the Defendant within Pennsylvania. Lastly, the court also noted that, in order for jurisdiction to be fair and reasonable, a finding of jurisdiction must not offend traditional notions of fair play and substantial justice. 

The court found that the contacts relied upon by the Plaintiff in an effort to establish specific jurisdiction were very minimal and consisted only of limited email and telephone contacts, none of which communications had anything to do with the Plaintiff’s claims. 

As such, the court found that there was neither general nor specific personal jurisdiction to be exercised over the moving Defendants. Accordingly, the Preliminary Objections seeking the dismissal of the Complaint with prejudice were sustained. 

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 1, 2020).

Should you need an attorney to serve as an expert witness in your legal malpractice case, either on the plaintiff's side or the defense side, please do not hesitate to contact me at dancummins@CumminsLaw.net or at 570-319-5899.

The Long Arm of the Law Hales NY Attorney Into Court in Pennsylvania

In the legal malpractice case of Rock v. Russo, No. 7605-CV-2019 (C.P. Monroe Co. March 6, 2020 Zulick, J.), the court addressed issues pertaining to jurisdiction over a non-resident under the long-arm statute and based upon minimum contacts by the Defendant attorney in Pennsylvania. 

According to the Opinion, the New York attorney was representing the Plaintiff in a personal injury matter arising out of an incident that occurred in Pennsylvania. 

The attorney allegedly initially represented the Plaintiff and pursued the claim but then allegedly advised the Plaintiff that he was terminating his representation. According to the Plaintiff, the New York attorney allegedly mistakenly advised her on the applicable statute of limitation and, as a result, the Plaintiff was barred from pursuing her claim.

The Plaintiff filed this legal malpractice suit. The Defendant responded with Preliminary Objections to the Complaint, arguing, in part, that the court could not execute jurisdiction over the New York attorney or his firm because the Defendant did not have sufficient minimum contacts with Pennsylvania. 

While the court noted that the Defendants had demonstrated that there had been no continuous and systematic business contacts by the firm within Pennsylvania, the court still found that the Defendants availed themselves to the foreign state and established minimum contact to support in personam jurisdiction by undertaking the representation of a client who had been injured in Pennsylvania. As such, the Defendant’s Preliminary Objections were overruled. 

Anyone wishing to review this decision may click this LINK.   

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 12, 2020).

Should you need an attorney to serve as an expert witness in your legal malpractice case, either on the plaintiff's side or the defense side, please do not hesitate to contact me at dancummins@CumminsLaw.net or at 570-319-5899.