THE 2025 TORT TALK TOP TEN

THE 2025 TORT TALK TOP 10

10. “Farcical” Fad of Allegations of Recklessness Continues

Despite the well-settled law since the Pennsylvania Rules of Civil Procedure first went into effect 78 years ago on January 1, 1947 establishing that Pennsylvania is a fact-pleading state when it comes to pleadings, the trial courts of Pennsylvania have continued to allow plaintiffs to plead recklessness in every case regardless of the facts. Click this LINK to see the many recent Tort Talk blog posts on this topic.

These trial court rulings allowing such pleading are based on a reading of Pa.R.C.P. 1019(b) as found in the errant Pennsylvania Superior Court decision in the case of Monroe v. CB H20 LP, 286 A.3d 785 (Pa. Super. 2022) (en banc). Judge Victor P. Stabile noted in his Dissenting Opinion in that case that the Majority’s decision was based on “farcical” reasoning. Monroe, 286 A.3d at 830 (Dissenting Opinion).This ‘farcical’ fad of allowing plaintiffs to plead recklessness with reckless abandon regardless of the facts of the case continued in 2025 in the Pennsylvania state courts.

While the state trial court judges from all around the Commonwealth continued to routinely allow claims of recklessness in every case, at least one federal district court judge over the past year ruled to the contrary. In McKinney v. GM, LLC, No. 1:24-CV-00140-SPB (W.D. Pa. Aug. 28, 2025), Judge Susan Paradise Baxter of the Western District Federal Court granted a partial Motion to Dismiss claims of punitive damages after finding that the Plaintiff failed to plead sufficient facts to support a punitive damages claim. The court noted well established rule of law in Pennsylvania that allegations of recklessness that could support a punitive damages claim must involve more than claims of ordinary negligence.

The Tort Talk blog post on the McKinney case can be viewed HERE.

9. Nearly 200 Year Old Gist of the Action Doctrine Ruled Invalid

The gist of the action doctrine generally holds that an injured party can not plead both a negligence cause of action and a breach of contract cause of action in the same lawsuit. The purpose of the doctrine was to maintain the difference between the two theories of liability in civil litigation matters.

In the case of Swatt v. Nottingham Village, 324 A.3d 23 (Pa. Super. July 2, 2025) (en banc) (Op. by Kunselman, J.), an en banc panel of the Pennsylvania Superior Court boldly ruled that the gist of the action doctrine, which has been essentially recognized in English and American jurisprudence for over 200 years, was no longer valid.

The Tort Talk blog post on the Swatt case can be viewed at this LINK.

The court essentially ruled in Swatt that the law has always recognized an injured parties right to choose and pursue either theory of liability, that is, a negligence theory of liability or a breach of contract theory, and that, under the Pennsylvania Rules of Civil Procedure, injured parties are permitted to plead their theories of liability in the alternative under a single personal injury Complaint.

The Superior Court’s decision in Swatt, which was handed down in July of this year, was followed by another Superior Court panel in a December 11, 2025 decision in the case of Poteat v. Asteak, ___ A.3d ___, 729 EDA 2023 (Pa. Super. 2025). The Tort Talk post on this case can be reviewed HERE.

Keep an eye out in 2026 for an upcoming article on this topic written by myself and my son, Daniel E. Cummins, Jr., a second year student at Virginia Law School, to be published this upcoming spring in the Pennsylvania Bar Association Quarterly.


8. Test to Show Good Cause for IME

In Verba v. Erie Insurance Exchange, 326 A.3d 973 (Pa. Super. 2024 ), the Pennsylvania Superior Court held that the requirement of good cause set forth in Rule 4010 regarding requests for medical examinations (IMEs) in civil litigation matters is designed to protect parties against an unwarranted invasion of their privacy and to preclude the use of such a medical examination for improper purposes.

The court in Verba ruled that good cause can exist to support a request for an IME in a pending litigation if there is a controversy, or a dispute between the parties, regarding the validity of the plaintiff’s injury claims.

The Tort Talk post on the Verba can be viewed HERE.


7. New Jury Selection Rule Goes Into Effect

On April 1, 2025, the new Pa.R.C.P 220.3 went into effect requiring trial court judges to be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement.


6. Archaic Local Rules Overruled

In the case of Scheibe v. Woodloch Resort, No. 1478 EDA 2024 (Pa. Super. May 20, 2025), Superior Court issued a decision that invalidated the archaic local rule of the Pike County Court of Common Pleas that required original signatures on all filings with the Court. As such, going forward electronic signatures may be utilized on documents being filed in Pike County.

The Tort Talk blog post on the Scheibe case can be viewed at this LINK.

Over this past year, the Superior Court struck down another archaic local rule in its decision in the case of Biros v. U Lock, Inc., No. 113 WDA 2024 (Pa. Super. Aug. 1, 2025). In Biros, the appellate court found that Westmoreland County’s archaic requirement that notices of appeal could only be filed in person or by mail was such a local rule. Accordingly, the appellate court ruled that the appellant’s initial filing was properly and timely filed and was sufficient to initiate the appeal.

The Tort Talk blog post on the Biros case can be viewed HERE.


5. Arbitration Clauses and Children

In the case of Shultz v. Skyzone, No. 25 EAP 2023 (Pa. Sept. 25, 2025) (Op. by Donohue, J.), a case that involved the claims brought on behalf of several minors who were injured at trampoline parks operated by Skyzone, the Pennsylvania Supreme Court held that a parent who signs an Arbitration Agreement cannot bind a non-signing spouse or a minor child to the terms of that agreement.

The Supreme Court held that parents lacked the authority to bind a minor to an agreement to arbitrate, as this would deprive the minor of judicial protections and oversight designed to safeguard their interests. As noted, the Pennsylvania Supreme Court also held that a parent who signs an Arbitration Agreement cannot bind a non-signing parent, or minor child, to its terms.

The Tort Talk blog post on this Pennsylvania Supreme Court case can be viewed HERE.

The Pennsylvania Supreme Court handed down the same decision on the same date in the consolidated case of Santiago v. Philly Trampoline Park, No. 24 EAP 2023 (Pa. Sept. 25, 2025) (Op. by Donohue, J.).


4. Statutory Employer Doctrine Upheld

In the case of Yoder v. McCarty Construction, 43 MAP (Pa. Oct. 23, 2025), the Pennsylvania Supreme Court reaffirmed the validity of the statutory employer doctrine under the Worker’s Compensation Act and rejected arguments from the plaintiff seeking to abolish this doctrine.

The Supreme Court reaffirmed the law behind the statutory employer doctrine that has been in effect in Pennsylvania since 1930 as enunciated in the case of McDonald v. Levinson Steel Co., 153 A. 424, 426 (Pa. 1930).

That long-standing law provides that, under Section 203 of the Workers’ Compensation Act (Act), 77 P.S. § 462, a general contractor that hires a subcontractor to perform work on a jobsite is deemed to be an “employer” of employees of the subcontractor in certain circumstances. In those instances where the subcontractor does not make payment, the general contractor will be considered liable for the worker’s compensation payments.

In exchange for this imposition of secondary liability on the general contractor, the Act’s statutory employer provision in Section 203 of the Act, 77 P.S. § 52, extends to a general contractor the same tort immunity afforded to the subcontractor of the injured worker in any third party lawsuit arising out of the same accident.

In this Yoder case, the Pennsylvania Supreme Court rejected arguments by the Plaintiff that the statutory employer doctrine should be rejected and/or that the immunity afforded to employers under the doctrine should be deemed to be waivable in certain circumstances.

The Tort Talk blog post on the Yoder case can be viewed HERE.


3. New Cell Phone Law

While texting while driving has been banned in Pennsylvania since 2012, in June of this year, a new law went into effect on June 5, 2025 that banned any and all cell phone use while driving on the roads of Pennsylvania. Under certain exceptions noted in the law, a driver may use a cell phone for emergency purposes. A driver may also use a mobile device if they pull off to the side of the road and stop where a vehicle may safely remain in a stopped position.

The law, known as “Paul Miller’s Law,” went into effect on June 5, 2025 and made it illegal to use a cell phone in your hands in any way while driving. The law even prohibits these activities even when one is stopped at a red light or in a traffic jam.

Under the language of the law, it appears that an overhead bluetooth system can be used to make calls as long as one uses the buttons on the steering wheel and the dash and not by way of the cell phone in your hand while driving.

For the next year through June of 2026, the penalty for a violation will be a written warning. Starting June 5, 2026, the penalty will be a summary offense with a $50 fine, plus court costs and other fees. Moreover, if a driver is convicted of both vehicular homicide and driving while distracted, they may be sentenced up to an additional five years in prison.


2. Doctrine of Forum Non Conveniens Clarified

Over the past year, the Pennsylvania Supreme Court provided clarity on the test to be applied in reviewing a Petition to Transfer Venue under the doctrine of forum non conveniens in the case of Tranter v. Z & D Tour, Inc., No. 32 EAP 2024 (Pa. Sept. 25, 2025) (Op. by Wecht, J.).

The Supreme Court of Pennsylvania that the Superior Court’s imposition of a “key witness” requirement in the analysis was inconsistent with Pennsylvania precedent on the issue of the type of evidence required to secure a transfer of a matter under the doctrine of forum non conveniens.

The Supreme Court otherwise clarified that a party seeking a transfer of a matter under the doctrine of forum non conveniens must identify the burdened witnesses and provide a general statement of their respective testimony. The Supreme Court confirmed that the petitioner need not show that the testimony of the witnesses is “critical” or “necessary” to the defense.

The Tort Talk blog post on this notable Pennsylvania Supreme Court decision can be viewed HERE.


1. Artificial Intelligence

In the year 2025, courts and litigators found a steady rise in the use of artificial intelligence (AI) in many aspects of the law. AI platforms have begun to be used to assist in the evaluation of cases and also with respect to legal research and brief writing.

Near the end of this year, the Pennsylvania Supreme Court issued its “Interim Policy On The Use Of Generative Artificial Intelligence By Judicial Officers And Court Personnel." This policy is designed to serve as an interim policy to guide judges and court personnel who desire to use artificial intelligence (AI) in their day-to-day work. This policy allows for judges and court personnel to utilize AI for summarizing documents, conducting preliminary legal research, and drafting initial versions of documents.

As noted in the August 14, 2025 Pennsylvania Law Weekly article entitled “AI and Its Proper Use in the Practice of Law” by Daniel E. Cummins and Ursinus College Computer Science major, Michael Cummins, a number of lawyers in Pennsylvania and across the country have been sanctioned for submitting fake legal citations, known as hallucinations, as a result of utilizing AI platforms for legal research and the writing of briefs and not checking the accuracy of such citations.


The “AI Hallucinations Cases Database” maintained by Damien Charlotin, an attorney in France, confirms that attorneys all over the world have been getting in trouble for filing motions and briefs with courts that contain fake, AI generated citations and information. According to that database, which can be viewed at this LINK, as of December of 2025, there were at least four (4) reported decisions handed down in Pennsylvania in which attorneys were in trouble in this regard.

It is anticipated that, in the near future, the Pennsylvania Supreme Court may also come out with rules to guide attorneys on the proper use of AI in the practice of law relative to any filings with the state courts.

In the Pennsylvania federal courts, Judge Karoline Mehalchick of the Federal Middle District Court has been leading the way by crafting a civil practice order that is issued in all of her matters that requires attorneys to identify any AI-created portions of their court filings and to certify to the court that any citations contained therein have been checked for accuracy.



New Book To Consider Purchasing To Improve Your Practice of Law

Last but not least, it is noted that, over the past year, the Pennsylvania Bar Institute (PBI) published an e-book entitled Raising the Bar: A Practical Guide to the Practice of Law written by Daniel E. Cummins. 

The book compiles articles written by the author over the past 25 years providing practice and professionalism tips for lawyers and judges.. The book is designed to provide lawyers, whether they be new or experienced, with tips and reminders on how to improve their day-to-day practice of law and efforts at a work-life balance.

New Rule Requiring Judges To Be In Courtroom For Jury Selection Goes Into Effect

The Pennsylvania Supreme Court's amendment of the Pennsylvania Rules of Civil Procedure to include a mandate that a trial court judge be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement goes into effect today, April 1, 2025.

This Rule can be found under Pa. R.C.P. 220.3 and can be seen at this LINK.

Here is a LINK to my article on this topic that appeared in the Pennsylvania Lawyer magazine five years ago in a March/April 2020 edition of the magazine.  The article reviews the jurisprudence on the issue back then, which jurisprudence has since led to the current amendment to the Pennsylvania Rules of Civil Procedure regarding voir dire.  The article also reviews the benefits of having a Judge stay on the bench during voir dire, especially for the prospective members of the jury.

Source of image:  Photo by Nothing Ahead on www.pexels.com.

Upcoming Rule Change (Effective April 1, 2025) Mandates that Trial Court Judges Sit in on Jury Selection

No More Leaving Jurors Alone with the Attorneys (unless agreed)

On January 7, 2025, the Pennsylvania Supreme Court approved a change to the Pennsylvania Rules of Civil Procedure to include a mandate that a trial court judge be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement. This rule is set to take effect on April 1, 2025 and can be found under Pa. R.C.P. 220.3.

A copy of the changes to the Rule can be seen at this LINK.

Source: Article – “Phila. Court System Pushed To Adapt As Justices Greenlight Changes to Pa.’s Civil Jury Selection Rules” By: Aleeza Furman of the Pennsylvania Law Weekly (Jan. 8, 2025).

THE 2020 TORT TALK TOP TEN

             

Here is the 2020 Tort Talk Top Ten--an annual listing of notable cases and important trends in Pennsylvania civil litigation law over the past year as highlighted in Tort Talk blog posts.

If you wish to view the actual Tort Talk post on any of the following cases or topics, or the actual Opinion, please go to TortTalk.com and type the name of the Plaintiff in the case in the Search Box in the upper right hand corner of the blog.  There should be a Link to the actual Opinion within the blog post itself.

10.    Trial Judges Should Stay on the Bench for Voir Dire

The Pennsylvania Supreme Court was positioned to answer the question of whether it was proper for a trial court judge to leave the bench for jury selection in its decision in the case of Trigg v. Children's Hospital of Pittsburgh of UPMC, No. 3 WAP 2019 (Pa. April 22, 2019) (Op. by Todd, J.)(Donohue, J., Concurring)(Wecht, J., Concurring).  

However, in its decision, the Pennsylvania Supreme Court found that the issue had not been preserved for appeal and that the Superior Court had, therefore, improperly addressed the merits of the question presented.

While the Court found that the issue had been waived, several of the Justices wrote Concurring Opinions voicing their thoughts that a trial court judge should remain on the bench during the course of voir dire.

9.    Validity of Reservation of Rights Letters

In the case of Selective Way Ins. Co. v. MAK Services, 232 A.3d 672 (Pa. Super. April 24, 2020) (Bowes, J., Shogan, J., Strassburger, J.) (Op. by Bowes, J.)(Dissenting Op. by Strassburger, J.), the Pennsylvania Superior Court issued an important decision pertaining to the validity of reservation of rights letters issued by liability insurance carriers.

The court emphasized that, in order for a reservation of rights letter to be valid, it must be issued in a timely fashion and it must clearly state the reasons under the policy for the reservation of rights or for the challenge to coverage.  The court also noted that a best practice may be for the insurance company to send the reservation of rights on multiple occasions as the case evolves.

The court noted that, if a carrier fails to meet these recommendations with respect to a reservation of rights letter, the carrier may be estopped from denying coverage in the end.

8.    Still no Appellate Guidance for Post-Koken Cases

The original Post-Koken decision was handed down back in 2005 allowing automobile insurance companies to replace their arbitration clauses with the requirement that UM and UIM claims instead be pursued in a court of law.  Yet, since that time, essentially the only appellate court decision of note handed down was the Stepanovich v. McGraw decision by the Pennsylvania Superior Court back in 2013 in which that court suggested that it was permissible to conduct a trial of the claims against the tortfeasor and the UIM carrier before the same jury (the Pennsylvania Supreme Court inexplicably denied allocatur in the case).

To date, there remain splits of authority all across the Commonwealth of Pennsylvania on a wide variety of Post-Koken issues in terms of pleadings, discovery, and trial.  These varying county decisions can always be viewed on the Post-Koken Scorecard by scrolling down the right hand side of the Tort Talk blog and clicking on the date under "Post-Koken Scorecard."

7.    Courts Address Standards for Sealing a Settlement Agreement

In the case of A.A. v. Glicken, No. 2020 Pa. Super. 197 (Pa. Super. Aug. 14, 2020 Olson, J., Dubow, J., and McLaughlin, J.) (Op. by Olson, J.), the court upheld a Luzerne County trial judge’s decision not to seal a settlement agreement in a minor’s medical malpractice lawsuit. 

In so ruling, the appellate court rejected the Defendants’ argument that not sealing the settlement agreement would have a chilling effect on future settlements and would go against the parties’ interests in privacy. The appellate court found no abuse of discretion by the trial court in denying the Motion to Seal. 

The Superior Court also ruled that the Defendants did not overcome the common law presumption of openness in courts and the Defendant did not meet their burden of showing good cause for sealing the record. 

This issue was also addressed by Judge Terrence R. Nealon of Lackawanna County in the case of Moses Taylor Foundation v. Coverys, No. 19-CV-7423 (C.P. Lacka. Co. May 8, 2020 Nealon, J.), the court addressed a hospital's request to seal the record in a bad faith litigation. 

In the end, the court found that the secrecy interests cited by the hospital and the trust do not supersede the presumption in favor of open access to the judicial records so as to justify a court-sanctioned closure of the record.

6.    Split of Authority on Allegations of Recklessness

In 2020, the split of authority on the propriety of allegations of recklessness continued.  

Some more liberal trial court judges allowed allegations of recklessness to be pled with reckless abandon in any case whatsoever regardless of the facts presented under a rationale that an allegation of recklessness is an averment of a state of the mind and such averments are allowed to be generally pled under Pa.R.C.P. 1019.

Another line of courts emphasized that Pennsylvania is a fact-pleading stated and limited allegations of recklessness to those cases where outrageous facts were present.

Most Plaintiffs attorneys avoid any delays in the forward movement of their cases that may be caused by Preliminary Objections by agreeing to stipulate the claims of recklessness out where they are challenged so long as the Plaintiff retains the option to motion the claims back in if discovery reveals facts sufficient to support a punitive damages claim.

5.    Pennsylvania Superior Court Adopts Test for Staying a Civil Lawsuit While Criminal Charges are Pending against Defendant

In a case of first impression, the Pennsylvania Superior Court has ruled in Keesee v. Dougherty, 230 A.3d 1128 (Pa. Super. March 16, 2020 Bowes, J., Olson, J., Stabile, J.)(Op. by Olson, J.), that a trial court judge must reconsider her refusal to stay a civil lawsuit while a companion criminal case is pending.

The lawsuit in this matter was brought by a nonunion electrical contractor against an indicted union boss and other defendants.

With its ruling the Pennsylvania Superior Court adopted the six-factor test established by the federal courts for determining whether to stay a civil case pending resolution of a related criminal matter.  The court cited to the federal case of In re Adelphia Communications, No. 02-1781, 2003 WL 22358819 (E.D. Pa. 2003).

4.    Pennsylvania Supreme Court Upholds Artful Pleading to Avoid Liability Exclusion

In Erie Insurance Exchange v. Moore, No. 20 WAP 2018 (Pa. April 22, 2020)(Op. by Dougherty, J.)(Dissenting Op. by Mundy, L), the Court allowed artful pleading of negligence by a Plaintiff in a shooting case to avoid exclusions in a liability policy and thereby implicate a carrier’s duty to defend the matter.

This case arose out of the tortfeasor's shooting of the Plaintiff.  The Plaintiff asserted in his Complaint that the shooter had negligently, carelessly and recklessly caused the weapon to be fired.  The Court read the facts to indicate that the shooter had intended to shoot another person and, when the Plaintiff had intervened, the Plaintiff was shot by mistake during the scuffle with the shooter.

3.     Regular Use Exclusion is Under Attack

Over the past two years, the Plaintiff's bar has been successful in attacking the validity of the Household Exclusion in automobile insurance policies.

Energized, the Plaintiff's bar has now set its sights on attacking the Regular Use Exclusion using essentially the same argument that was utilized in the Gallagher v. GEICO case, i.e., that the exclusion acts as an improper de facto waiver of stacked coverage when the MVFRL requires that carriers secure written waivers of stacked coverage from its insureds.

While these attacks initially have not met with success, the Plaintiff's bar scored a chink in the armor with a victory in the Northampton County Common Pleas Court case of Rush v. Erie Insurance Exchange, No. C-48-CV–2919-01979 (C.P. Northampt. Co. June 29, 2019 Baratta, J.). In Rush, Judge Stephen G. Baratta of the Northampton County Common Pleas Court granted partial summary judgment to the injured party plaintiffs after holding, as a matter of first impression by any court in Pennsylvania, that Erie’s regular use exclusion was invalid under the MVFRL.

The recent cases on this issue can be viewed by going to www.TortTalk.com and scrolling down the right hand column until you get to the "Labels."  In alphabetical order under that, click on the label for "Regular Exclusion" to get to the Tort Talk blog posts on those cases.

Also, here is a LINK to my September 10, 2020 Pennsylvania Law Weekly article on the topic entitled "Can the Regular-Use Exclusion Withstand an Attack from the Plaintiffs Bar?"

2.   Lower Courts Continue to Debate Scope of Gallagher v. GEICO Household Exclusion Decision

In 2019, the Pennsylvania Supreme Court attempted to eradicate the Household Exclusion found in automobile insurance policies as an improper de facto waiver of stacked coverage.

In 2020, lower courts struggled with the application of the Gallagher v. GEICO decision to different factual scenarios than that presented in the case decided by the Pennsylvania Supreme Court.

While the Federal District Court judges largely followed the Gallagher v. GEICO decision as eradicating the Household Exclusion, several state court judges upheld the continuing validity of the Household Exclusion based upon the cases before them having different facts than those at issue in the Gallagher v. GEICO decision.

However, just last month, in the case of Erie Insurance Exchange v. Petrie, No. 261 EDA 2020 (Pa. Super. Nov. 18, 2020 Pellegrini, J., Nichols, J., Kunselman, J.)(Op. By Kunselman, J.), a panel of Pennsylvania Superior Court Judges held that the Gallagher v. GEICO decision was not limited to its facts and should be read as invalidating the Household Exclusion.

The recent cases on this issue can be viewed by going to www.TortTalk.com and scrolling down the right hand column until you get to the "Labels."  In alphabetical order under that, click on the label for "Household Exclusion" to get to the Tort Talk blog posts on those cases.

1.    COVID-19 Pandemic Impacts Civil Litigation in Pennsylvania (and across the world)

With the rise of the COVID-19 Pandemic in March of 2020, the courts shut down except for essential matters through September of 2020.  By then, most courts in Pennsylvania began to try to complete jury trials until the second surge compelled most courts to shut down trials again in December of 2020.  It remains to be seen when trials will get back on track in 2021.

The COVID-19 Pandemic also forced attorneys and judges to adapt and to adopt virtual meetings in order to keep cases moving forward.  The use of virtual meetings for depositions and court appointments became the norm, possibly impacting how cases will be handled in the future when the Pandemic goes away.

It is also anticipated that the impact of the Pandemic will be felt in the future in terms of a dip in claims given that there was a stay-at-home Order in effect in Pennsylvania for about two months in the Spring of 2020.

Right of Attorneys To Strike Jurors in Lackawanna County Civil Trials Potentially Eliminated By Pennsylvania Supreme Court Order

 

The Pennsylvania Supreme Court has granted an Application from the Lackawanna County Court of Common Pleas to suspend or modify Pa.R.C.P. 221 and issued an Order on November 4, 2020 allowing the trial court judges to limit, or even eliminate, any peremptory challenges by parties in civil litigation lawsuits in Lackawanna County.

This Application was apparently submitted due to difficulties in getting jurors to appear in court in response to juror summonses during the Covid-19 pandemic.

In the Order, the Pennsylvania Supreme Court noted that any interested parties could have filed an objection to the same by November 12, 2020, a mere eight (8) days after the Order was entered.  I note that I only became aware of the Order yesterday and share it here now.

Anyone wishing to review this Order may click this LINK.

Commentary:

It appears that litigants proceeding to Trial in Lackawanna County potentially have no say in the makeup of their juries other than to request that some jurors be stricken for cause.  It also appears that there is no remedy available given that any appeals on this particular issue could ultimately be decided by the very Pennsylvania Supreme Court that issued the ill-advised Order allowing this in the first place.

Members of both the Plaintiff's bar and the Defense bar should work together to right this wrong.  Every citizen in Pennsylvania has a state and national Constitutional right to a jury trial and within that right is the right to take an active part in the selection of a fair and impartial jury.

Jury Trial By Zoom Takes Place in Texas -- More to Come?

Here's a LINK to a news article by Nate Raymond entitled "Texas Tries a Pandemic First:  A Jury Trial by Zoom" which was posted on Reuters.com telling the story of what may have been the first jury trial in America by Zoom.  The summary trial, which was non-binding, involved an insurance dispute and took place in Texas.

The article also notes that other jurisdictions in America are moving towards allowing for jury selection to take place remotely if that procedure is agreed to by the parties.

Here's a LINK to another article on the same case providing more interesting details on the proceedings.  That article, entitled "Juror Walks Off to Take a Phone Call as Texas Tests First Jury Trial Via Zoom," appeared on Law.com and was written by Angela Morris

Is this the wave of the future?

Pennsylvania Supreme Court Finds That Issue of Whether It Is Proper For a Trial Court Judge To Leave The Bench During Jury Selection Was Not Preserved

Tort Talkers may recall that we have been waiting for the Pennsylvania Supreme Court to voice its opinion on the propriety of the practice of some trial court judges choosing to leave the bench during jury selection and allowing the litigating attorneys to conduct voir dire on their own.

The Pennsylvania Supreme Court was positioned to answer this question in its decision in the case of Trigg v. Children's Hospital of Pittsburgh of UPMC, No. 3 WAP 2019 (Pa. April 22, 2019) (Op. by Todd, J.)(Donohue, J., Concurring)(Wecht, J., Concurring).  However, in its decision issued yesterday, the Court found that the issue had not been preserved for appeal and that the Superior Court had, therefore, improperly addressed the merits of the question presented.  (The Tort Talk Blog post on the Superior Court's decision, along with other posts pertaining to this Trigg decision, can be viewed HERE).

Note however that, in their Concurring Opinions, Justice Donohue and Justice Wecht expressed their misgivings with regards to any practice whereby a trial court judge would leave the bench during the jury selection proceedings.

Justice Wecht also provides some cogent advice in his Concurring Opinion with regards to properly stating objections at appropriate times, creating and preserving objections on the record before trial and at trial, and even the merits of making objections that an attorney knows will be overruled if only to preserve the issue on appeal.

While most of the Majority Opinion focuses on the law of waiver of objections and not so much on the merits of the question of whether it is proper for a trial court judge to leave the bench during voir dire, both Concurring Opinions are worth reading relative to the jury selection question.

To read the Majority Opinion, please click HERE.

To read Justice Donohue's Concurring Opinion, please click HERE.

To read Justice Wecht's Concurring Opinion, please click HERE.


Commentary:  Now that it has been brought to the Supreme Court's decision that there is a practice in some trial courts around the Commonwealth of Pennsylvania where trial judges leave the bench during jury selection, and now that some of the Justices have vocalized their disdain for the practice, it remains to be seen if the Court will now effectuate a change in the Pennsylvania Rules of Civil Procedure to mandate that trial court judges remain on the bench for the entirety of voir dire.

If such changes are to be made, perhaps the Court would also consider mandating, through an amendment to the Rules, that a Court Reporter also be required to transcribe the entirety of voir dire.  Oftentimes, there is pressure on litigants from the trial court to agree to forgo the need for a court reporter to record the voir dire.

There is no question that it is a better practice to have a court reporter take down what is happening in voir dire as it happens as opposed to having no court reporter present and then later summoning a court reporter and attempting to rehash what happened with respect to an objection previously raised during voir dire.

ARTICLE: Judgeless Jury Selections: A Troublesome Trend

Here is a LINK to an article of mine that has been published in the March/April 2020 edition of The Pennsylvania Lawyer Magazine entitled "Judgeless Jury Selections:  A Troublesome Trend."

The article analyzes the relatively recent troublesome trend of judges routinely leaving the bench during jury selection after giving a short speech to the jurors about the trial process and then allowing the attorneys to conduct voir dire by themselves.

A number of cases that have gone up on appeal over issues surrounding the fact that the trial judge left the bench for voir dire.  In one such case, the Pennsylvania Superior Court recommended that trial court judges should remain on the bench.  In another case, the Pennsylvania Superior Court noted that it is not required that the trial court judge remain on the bench for voir dire but that, if the judge left the bench during that process, a different standard of review would have to be utilized on appeal to address any issues raised with respect to jury selection. 

This issue is now poised to be decided by the Pennsylvania Supreme Court in the Trigg case, which is currently pending before that Court.  The parties in that case argued the issues presented back on October 19, 2019 and await a decision.

The article reviews a number of reasons in favor of trial court judges remaining on the bench during the course of jury selection in order that certain appellate issues could be avoided as a result.

I send thanks to Patricia Graybill, the Editor of The Pennsylvania Law Weekly, for agreeing to publish this piece.

Pennsylvania Superior Court Addresses Standards For a Proper Voir Dire Proceeding

Is a judge required to be on the bench during jury selection?

In the case of Smith v. Cordero, 2019 Pa. Super. 340 (Pa. Super. Nov. 15, 2019) (Op. by McLaughlin, J.), the Superior Court ruled that a trial court erred in denying an estate’s Motion to Strike Two Jurors in a medical malpractice case where the jury selection was conducted by a court clerk and where the jurors had where the jurors had expressed the view that medical malpractice lawsuits had affected the cost and availability of medical services. In light of this ruling, the judgment in the underlying case was vacated.

Interestingly, the Superior Court noted that the previous decision in the case of Trigg v. Children’s Hospital of Pittsburgh, 187 A.3d 1013 (Pa. Super. 2018), appeal granted, 201 A.3d 145 (Pa. 2019) did not serve to impose a requirement that a judge be present during voir dire, but rather, only merely addressed the applicable appellate standard of review on a jury selection issue where a judge did not participate in the voir dire.

The court did find that the Trigg appellate standard of review applied in this matter. Under that standard of review, the court ruled as stated.

The Superior Court in this Smith case noted that, while the two (2) jurors at issue stated that they could still follow the judge’s instructions and be fair and impartial, the trial court judge was not present to hear the jurors’ tone of voice or to address their demeanor when they provided this information. As such, the Superior Court found that the trial court judge could not know whether the jurors could really be fair and impartial.

Given that the jurors’ answers expressed the “slightest ground of prejudice” required for their dismissal from the jury pool, the appellate court stated that the trial court should have granted the motions to strike the jurors for cause.

As such, while it appears that a trial court judge may not be required to be on the bench at the time of jury selection, the Pennsylvania Superior Court has again strongly suggested that it is the better practice for a judge to be present during voir dire to assess the demeanor and testimony of a potential juror when that juror is first questioned regarding his or her ability to be fair and impartial to with respect to the parties involved.

As noted in the Trigg citation above, this issue may be addressed by the Pennsylvania Supreme Court in the near future.

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

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

Pennsylvania Supreme Court To Review Case In Which Question of Presence of Trial Court Judges At Jury Selection is Implicated

Tort Talkers may recall the buzz caused by the Pennsylvania Superior Court's decision in the case of Trigg v. Children's Hospital of Pittsburgh, No. 2018 Pa. Super. 129 (Pa. Super. May 14, 2018 Kunselmen, Olson, J.J.; Bowes, J., concurring) (Op. by Kunselmen, J.), in which that Court noted that a trial court judge should sit in on, and preside over, jury selection, in order to be able to apply a certain standard of review on appeal.

As a status update on this case, it is noted that, in an Order handed down on January 23, 2019, the Pennsylvania Supreme Court recently granted allocatur on the appeal of this case.

In its one-page order granting allocatur, the Supreme Court agreed to hear argument on three issues:

“a. Whether the Superior Court’s decision conflicted with the jurisprudence of this Honorable Court and other Superior Court decisions by failing to apply the ‘palpable error’ abuse of discretion standard of review and properly defer to the trial court?

b. Whether the Superior Court’s holding directly conflicts with Shinal v. Toms, 162 A.3d 429 (Pa. 2017), which requires the denial of a strike for cause of a prospective juror when the prospective juror is willing and able to eliminate influences and render a verdict according to the evidence?

c. Whether the Superior Court improperly considered arguments regarding juror demeanor when those arguments were waived?”

Anyone wishing to review the Supreme Court's Order may click this LINK.

 

It remains to be seen to what extent the Pennsylvania Supreme Court will comment on the presence of a trial court judge at jury selection.

Here's a LINK to the Tort Talk post on the Superior Court's decision in the Trigg case.  That post contains a Link to the actual decision by the Pennsylvania Superior Court.  The Superior Court was pretty strong in its suggestion that a trial court judge should be present for jury selection.

What do you think?

ARTICLE: The Uncommon Law of 2018: Reversals of Precedent and Splits of Authority Dominate

This article of mine was recently published in the December 18, 2018 edition of the Pennsylvania Law Weekly and is republished here with permission.

The Uncommon Law of 2018: Reversals of Precedent and Splits of Authority Dominate

By Daniel E. Cummins
December 18, 2018

These are invigorating times for those engaged in the study and practice of law in Pennsylvania.

Over the past year there have been dramatic reversals of long-standing law by a newly activist Pennsylvania Supreme Court. There have been clarifications of recurring civil litigation issues by both the Superior Court and Commonwealth Court. There has also been a continuing development of a new common law by the Pennsylvania state and federal trial courts grappling with novel questions in the absence of appellate guidance in post-Koken matters and with respect to social media discovery and evidentiary disputes. Keeping apprised of these dramatic changes and developments is more important than ever.

Dramatic Pennsylvania Supreme Court Decisions

Over the past year the Pennsylvania Supreme Court made its presence known with its new brand of judicial activism evidenced in several civil litigation decisions that have created new avenues for plaintiffs to seek additional compensation and which will likely trigger more litigation in the future.

In Cagey v. PennDOT, 179 A.3d 458 (Pa. Feb. 21, 2018), the Pennsylvania Supreme Court expressly overruled the long-followed 12-year-old Commonwealth Court decision in Fagan v. Commonwealth, DOT, 946 A.2d 1123 (Pa.Cmwlth. 2006), and held that PennDOT is now only immune from suit in guiderail claims in limited circumstances. Under the prior Fagandecision there was essentially no liability on any claims against PennDOT relative to guiderails in motor vehicle accident matters.

Now, under the Pennsylvania Supreme Court decision in the Cagey case, when PennDOT has installed a guiderail, sovereign immunity is waived if it is established by the plaintiff that the agency’s negligent installation and design created a dangerous condition that caused or contributed to the happening of a motor vehicle accident.  A dramatic increase of lawsuits against PennDOT on this theory of recovery is anticipated.

In another stunning reversal, the Pennsylvania Supreme Court overturned 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1).

In the case of Balentine v. Chester Water Authority, No. 119 MAP 2016 (Pa. Aug. 21, 2018 Mundy, J.), the plaintiff’s decedent was working as a contractor hired to rehabilitate a section of a water distribution system. At the time of the accident, the decedent was working just off to the side of a roadway. A government inspector pulled up to the scene and parked his car and left it running. The decedent-contractor was unfortunately killed when a third car struck the parked government inspector’s car and propelled that stationary vehicle into the decedent.

The majority of the Pennsylvania Supreme Court reviewed the law behind the Tort Claims Act and held that movement of a vehicle, whether voluntary or involuntary, is not required by the statutory language of the vehicle liability exception in order for that exception to apply. As stated, in  so ruling, the court eradicated 30 years of precedent on the issue in one fell swoop. This decision is also expected to give rise to an increase in lawsuits on this theory of recovery.

No More Voir Dire Without a Judge Present

The Pennsylvania Superior Court also handed down a number of notable decisions over the past year. The case of Trigg v. Children’s Hospital of Pittsburgh, 187 A.3d 1013 (Pa. Super. May 14, 2018), has already changed how jury selection will work in the trial courts across the Commonwealth. In Trigg, the Pennsylvania Superior Court reversed a trial court’s denial of post-trial motions in a medical malpractice case regarding, in part, jury selection issues.

According to the opinion, in certain trials in Allegheny County, only a court clerk presides over voir dire. Any issues raised during jury selection would require the litigants and the clerk to go to another office to meet with the judge for a decision on whether to strike a juror. As such, the trial court judge would not have any first-hand perception of a juror’s demeanor in response to questions posed by the attorneys during jury selection.

The Superior Court in Trigg ruled that, given the fact that that first-hand perception of a juror’s demeanor is the basis for a palpable error deference standard of review on appeal for voir dire issues, decisions on jury strikes made by judges who do not attend jury selection should not be afforded that type of deference by the Superior Court.

The appellate court ruled in this fashion after noting that the alleged demeanor of a prospective juror cannot be reconstructed after the fact by attorneys attempting to relay the same to the formerly absent trial judge.  The Superior Court ruled that “a judge personally witnessing the original voir dire is essential, because it justifies our—and the losing party’s—faith in the trial court’s rulings on challenges for cause.”

The Superior Court’s decision in Trigg is in line with the Pennsylvania Supreme Court’s jury selection decision last year in the case of Shinal v. Toms, 162 A.3d 429 (Pa. 2017). In Shinal, the Pennsylvania Supreme Court ruled that whether a juror is to be stricken during voir dire is dependent upon the trial judge’s assessment of the juror’s demeanor and the juror’s answers to the questions posed regarding whether the juror is capable of putting aside any biases so as to serve in a fair and impartial manner.

Going forward, it is anticipated that this line of decisions will keep trial court judges on the bench during voir dire so as to avoid any jury selection objections being upheld on appeal.

Social Media Decisions

Notable social media discovery and evidentiary decisions were handed down over the past year.

In Kelter v. Flanagan, PICS Case No. 18-0266, No. 286-Civil-2017 (C.P. Monroe Co. Feb. 19, 2018 Williamson, J.), Judge David J. Williamson granted a defendant’s motion to compel a plaintiff to provide the defense counsel with the plaintiff’s Instagram account log-in information.

The court ruled in this fashion given that the defense had made a predicate showing that the public pages on the plaintiff’s profile showed that more information may be found on the private pages of the same profile.

In addition to granting the defense limited access to the private pages of the site for discovery purposes, the also court ordered that the defense not share that information with anyone not related to the case. The court’s order also directed that the Plaintiff not remove or delete any content from that account in the meantime.

A contrary result was handed down in the Northampton County Court of Common Pleas ruling in Allen v. Sands Bethworks Gaming, No. C-0048-CV-2017-2279 (C.P. North. Co. Aug. 6, 2018 Dally, J.).

This case arose out of the plaintiff’s alleged slip-and-fall in a bathroom at the Sands Casino in Bethlehem, Pennsylvania.

During the course of discovery, the plaintiff provided limited information in response to social media interrogatories seeking information regarding her online activity. The plaintiff confirmed in her responses that she used Facebook and Twitter but declined to provide any more detailed information other than to confirm that nothing had been deleted from her accounts since the date of the incident.

The defense responded with a motion to compel for more information, including information from the private portions of the plaintiff’s social media profiles.

In his detailed opinion, Northampton County Judge Craig A. Dally provided an excellent overview of the general rules of discovery pertinent to this issue as well as a review of the previous social media discovery decisions that have been handed down not only by various county courts of common pleas but also courts from other jurisdictions. No Pennsylvania appellate court decision was referenced by the Allen court as there is apparently still no appellate guidance to date.

In his opinion, Dally noted that the defendant had pointed out discrepancies between the plaintiff’s deposition testimony regarding her alleged limitations from her alleged accident-related injuries and photos available for review on the public pages of the plaintiff’s Facebook profile depicting the plaintiff engaging in certain activities.

Nevertheless, after reviewing the record before the court, Dally still ruled that the defense had failed to establish the factual predicate of showing sufficient information on the plaintiff’s public pages to allow for discovery of information on the plaintiff’s private pages.

In a footnote, the court also emphasized that such a factual predicate must be established with respect to each separate social media site the defendant wishes to access further.

Dally additionally noted that, in any event, he “would be disinclined to follow the line of Common Pleas cases that have granted parties carte blanche access to another party’s social medial account by requiring the responding party to  to turn over their username and password, as requested by the defendant in this case.” The court found that such access would be overly intrusive, would cause unreasonable embarrassment and burden, and represented a discovery request that was not properly tailored with reasonable particularly as required by the Rules of Civil Procedure pertaining to discovery efforts. In light of the above reasoning, the defendant’s motion to compel was denied.

The above cases show that a decision on the discoverability of social media information can be dependent upon the personal assessment of the evidence by a particular trial court judge.

It is anticipated that when faced with the issue, the appellate courts will apply a similar method of allowing for social media discovery, i.e., requiring a predicate showing of information on the public pages of a profile that lend support to an assertion that discovery of the private pages should be allowed as well. But perhaps the appellate courts will apply more concrete parameters of the analysis so that the litigants can predict with greater confidence how a trial court judge may be required to rule upon the issue.

For a comprehensive compilation of social media discovery decisions, one can freely access the Facebook Discovery Scorecard on the Tort Talk blog. Many of the decisions handed down to date can be viewed and downloaded from that page.

Although there has been no appellate guidance in Pennsylvania on the issue of the discoverability of social media information, the appellate courts have weighed in on the issue of the admissibility of social media evidence at trial, albeit in the criminal court context.

Earlier this year, in the case of Commonwealth v. Mangel, 181 A.3d 1154 (Pa. Super. 2018), the Pennsylvania Superior Court ruled that social media posts are inadmissible in criminal cases unless prosecutors can present evidence of who actually authored the commentary, that is, unless the evidence is authenticated under Pa.R.E. 901.

The court ruled in this fashion after noting that social media accounts can be easily hacked or faked. In so ruling, the court affirmed an Erie County trial court decision denying a prosecutor’s motion in limine seeking to introduce into evidence Facebook posts and messages allegedly authored by the defendant.

Both the trial court and the appellate court found that merely presenting evidence that the posts and messages came from a social media account bearing the defendant’s name was not enough to allow the evidence in. The court noted that Facebook posts and messages must instead be authenticated under Pa.R.E. 901 in a manner similar to how text messages and email messages are authenticated. The Superior Court in Mangel relied on its own 2011 decision in Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705 (Pa. 2014), which dealt with the admissibility and authentication of cellphone text messages.

In the 2018 Commonwealth v. Mangel case, the court noted that the Koch court had previously held that “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.” The Mangel court ruled, in a case of first impression, that the same analysis should apply to social media posts in the criminal court context.

It can be expected that a similar ruling will also be handed down in the context of a civil litigation matter should that issue come before the trial or appellate courts.

The Future Shows Up as Your Ride

Sometimes the future, like an Uber ride, arrives sooner than you expect. One of the first Pennsylvania court decisions in a personal injury matter involving an Uber ride was handed down this year.

In the case of Fusco v. Uber Technologies, PICS No. 18-0944  (E.D. Pa. July 27, 2018 Goldberg, J.)(Mem. Op.), the court conditionally granted Uber’s motion to dismiss the plaintiff’s negligent hiring, retention and supervision claims in a case of an Uber driver who allegedly attacked the plaintiff-customer.

By way of background, the plaintiff had attended a party Philadelphia and then contacted Uber for a ride to his home in New Jersey.

According to the opinion, the Uber app conceals the customer’s destination until the start of a booked trip. Accordingly, when a driver arrives to pick up the plaintiff, he does not know the plaintiff’s destination. The app is apparently set up in this way so as to the prevent drivers from declining routes they deem to be less profitable or less desirable. According to the opinion, Uber does not allow drivers to refuse a trip after learning of a customer’s destination.

In this matter, when the Uber driver arrived, he refused to take the plaintiff to his home in southern New Jersey. The plaintiff, apparently knowing the rules that Uber imposes on its drivers, remained seated in the car and repeated his request to be brought home. At that point, the driver dragged the plaintiff out of the car, kicked and beat him, leaving the plaintiff unconscious and bleeding.

The plaintiff later filed this suit against Uber asserting a negligent hiring claim, fraud and misrepresentation claims and vicarious liability claims.

According to the opinion, the court had originally granted Uber’s motion to dismiss on the negligent hiring and related claims given that there was no record of any alleged instances of past misconduct by the offending driver.

The court noted, however, that, after the plaintiff filed his complaint, news outlets in the area reported that the driver involved in the incident had a prior criminal conviction. In light of this development, the court granted the plaintiff leave to amend his complaint as to these claims.  Accordingly, the claim against Uber was allowed to proceed.

Can You Hear Me Now?

In 2018, the law continued to trend with respect to the issue of the availability of punitive damages in claims involving drivers involved in accidents while using their cellphones.

Under Pennsylvania’s Anti-Texting Law, 75 Pa.C.S.A. Section 3316, it is provided that no driver shall use a handheld device to send, read or write a text while the vehicle is in motion. Noncommercial drivers are otherwise still currently allowed to use their cellphones to make and receive calls while driving.

As for commercial drivers, Pennsylvania’s Distracted Driving Law, 75 Pa.C.S.A. Section 1622, makes it illegal for commercial drivers to use handheld devices in any fashion, except in emergency situations. That law also provides that it is illegal for an employer to permit or require a commercial driver to use a handheld device while driving, except in emergency situations.

With the continuing absence of any appellate authority on the issue to date, the trial courts of Pennsylvania have developed a common law on the issue of whether punitive damages are a viable part of an auto accident claim involving cell phone use by a defendant driver.

In the Cumberland County case of Manning v. Barber, No. 17-7915 Civil (C.P. Cumb. Co. 2018), preliminary objections were granted and a plaintiff’s punitive damages claim was dismissed in a case in which the plaintiff alleged that the defendant driver was texting while driving.

According to the opinion, the plaintiff’s vehicle was stopped at a red light with another vehicle stopped behind it. The plaintiff alleged that the defendant failed to stop for the traffic light and rear-ended the second vehicle, causing it to strike to the rear of the plaintiff’s vehicle. The plaintiff additionally alleged that, at the time of the accident, the defendant was not looking at the roadway because she was distracted while looking at and texting on her cellphone.

After reviewing the general law pertaining to punitive damages, the court confirmed that there remains “a lack of Pennsylvania appellate case law in the context of distracted driving cases where the tortfeasor is distracted by the use of a cellular phone at the time of the accident.”

The court did note that there were a number of trial court decisions from across Pennsylvania regarding claims for punitive damages in cellphone cases. Based upon these trial court decisions, the Manning court concluded that the mere use of a cellphone absent additional indicia of recklessness was not enough to sustain a claim for punitive damages.

In reviewing the plaintiff’s complaint, the note noted that the plaintiff simply pleaded boilerplate allegations that the defendant was inattentive and going too fast. The court in Manning found that these allegations only amounted to a classic claim of negligence, and not recklessness.

The court in Manning additionally rejected the plaintiff’s presentation of a policy-based argument that texting while driving should constitute per se recklessness. The court stated that, while this argument maybe considered by a future appellate court, in the absence of any such appellate guidance to date, the Manning court declined to accept the plaintiff’s argument in this regard.

The Manning decision is consistent with other prior trial court cellphone decisions requiring additional aggravating facts over and above mere cellphone use in order for a court to allow for a punitive damages claim to proceed. Such aggravating factors in other decisions in which punitive damages were allowed to proceed have included the fact that the defendant is driving a large commercial vehicle, excessive speed on the part of any driver, heavy traffic in the area, looking down or intoxication.

It remains to be seen whether 2019 will bring us an appellate decision on the issue of cellphone use and punitive damages claims in the auto law context.

Still in Need of Appellate Guidance for Post-’Koken’ Cases

There were no appellate decisions handed down in 2018 in the separate auto law context of post-Koken matters.

The only published appellate decision to date remains the Pennsylvania Superior Court’s decision from five years ago in Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa. Super. 2013) appeal denied 89 A.3d 1286 (Pa. 2014). In that case, the Superior Court approached the question of whether an insurance company defendant should be identified as a party to a jury in a post-Koken trial but, unfortunately, did not provide a definitive holding on that issue.  Incredibly, the Pennsylvania Supreme Court declined to hear that appeal thereby missing a rare opportunity to dole out much needed guidance on novel issues of law.

Ever since, the trial courts of Pennsylvania continue to struggle with post-Koken issues. According to the post-Koken Scorecard on the Tort Talk blog, which has been compiling post-Koken decisions over the past decade, there are splits of authority among, and sometimes within, the county courts across the commonwealth on many different important questions of law pertaining to pleadings, discovery, evidentiary and trial issues.

For example, in terms of whether post-Koken claims not containing a bad faith claim should be consolidated or severed in terms of the third-party allegations against the defendant driver and the breach of contract claim for UIM benefits, at least 24 county courts favor the pretrial consolidation of such cases, while at least 23 favor the severance of these types of cases.

In terms of those post-Koken cases in which a bad faith claim is also alleged, there are at least 10 county courts that deny motions to sever and stay the bad faith claims, while at least 19 other county courts have ruled in favor of granting motions to sever and stay discovery on the bad faith claims.

The majority trend in the Pennsylvania federal courts, regardless of whether a bad faith claim has been pleaded, has been in favor of the consolidation of post-Koken claims through the life of the litigation.

Looking Ahead to 2019

It is expected that the above trending areas of law will continue to grab the headlines in 2019.

Perhaps one of the most important decisions to watch for in 2019 will be the Pennsylvania Supreme Court’s ruling in Roverano v. Crane, No. 58 EAL 2018 (Pa. July 31, 2018). In Roverano, the Pennsylvania Supreme Court is expected to address the issue of first impression involving the question of whether the Pennsylvania Superior Court misinterpreted the Fair Share Act in terms of apportioning liability among defendants in the context of this products liability case. That decision could have an impact across all types of civil litigation matters involving multiple defendants.

At the Superior Court level, the hope is that that court will publish any decisions in these trending areas of law as opposed to releasing them as nonprecedential decisions. In this day and age of digital information there should not be any concern with respect to filling too many casebooks—those books are (unfortunately) falling by the wayside. As appellate guidance is desired by both civil litigators and the bench on these emerging areas of concern, such decisions should all be published as a matter of course.

The hope also remains that if the Pennsylvania Supreme Court has an opportunity to review any of the above issues on appeal that it will grant certiorari and also provide the much-needed appellate guidance in these important areas of the law.

Daniel E. Cummins is a partner with the Scranton law firm of Foley, Comerford & Cummins. He focuses his practice on the defense of auto accident, premises liability and products liability matters.  His Tort Talk Blog can be viewed at www.TortTalk.com.