Judge Nealon of Lackawanna County Discusses Discovery Sanctions and the Code of Civility

In the case of Barbarevech v. Tomlinson, No. 18-CV-4821 (C.P. Lacka. Co. Oct. 29, 2021 Nealon, J.), Judge Terrence R. Nealon provided lessons on the current law for deciding motions for sanctions on discovery issues and regarding civility amongst counsel.

This matter arose out of a motor vehicle accident. During the course of discovery, a dispute arose over the Defendant’s apparent refusal to respond to discovery requests seeking liability insurance documents.

Despite the trial court issuing multiple Orders compelling the Defendant to respond to various discovery requests, the requested information was allegedly not forthcoming. As such, the Plaintiffs filed a Motion for Sanctions.

In reviewing the Motion for Sanctions, the court reviewed the current status of Pennsylvania law with regards to the imposition of sanctions under Pa. R.C.P. 4019 when a trial court’s discovery Orders are not obeyed.

Judge Nealon noted that, under Pennsylvania law, while the trial court judges are afforded great discretion in fashion and remedies or sanctions for violations of discovery Rules and Orders, the law does require that the court select a punishment that “fits the crime.”

Judge Nealon reviewed the five (5) separate factors that are considered to be a necessary part of the consideration when reviewing a request for sanctions based upon a discovery violation.

Those five (5) factors are:

(1) the nature and severity of the discovery violation;


(2) the defaulting party’s willfulness or bad faith in failing to comply with discovery;


(3) the resulting prejudiced to the other party;


(4) the non-offending party’s ability to cure any prejudice; and,


(5) the number of discovery violations by the non-compliant party.

After applying these factors to the case before him, the judge confirmed that the Defendant had continuously ignored its discovery obligations, willfully disobeyed the discovery Orders of Court, and unnecessarily strained the limited judicial resources by the Defendant’s actions.

As such, the court granted the Plaintiff’s Motion and awarded counsel fees and reasonable expenses in connection with the preparation of the Motion for Sanctions. The court did grant the Defendant the right to contest the reasonableness and necessity of the fees that may be put forth by the Plaintiff.

The court also noted that the conduct at issue in this case was violative of the Pennsylvania Code of Civility’s aspirational provisions advocating civil, respectful, and courteous discourse, and also discouraging acrimonious speech and disparaging personal remarks.


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

Source of image:  Photo by Lukas from Pexels.com.

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Eastern Federal District Court Transfers Trucking Accident Case to State of Georgia Where Accident Happened

In the case of Miller v. Sawa Transp. Inc., No. 2:21-CV-02308-AB (E.D. Pa. Sept. 27, 2021 Brody, J.), the court ruled that proper venue for a motor vehicle accident claim was the federal district where the crashed occurred and not where the injured party received medical treatment. As such, the court granted the Defendant’s Motion to Transfer Venue and sent the case to the state of Georgia. 

According to the Opinion, the Plaintiff was driving a tractor trailer in the state of Georgia when he was rear-ended by a truck operated by the Defendant’s driver, who is also apparently operating a tractor trailer. The Defendant tractor trailer companies were both organized and headquartered in the state of Georgia.

The Plaintiff filed the cause of action in the Eastern Federal District of Pennsylvania, i.e., in Philadelphia. 

The Defendants moved to transfer the case to a federal district court in Georgia, arguing that the Eastern District of Pennsylvania was an improper venue. The Plaintiff opposed the motion by asserting that his medical treatment had occurred in Pennsylvania and that, since liability was not in dispute and the only issue was damages, he should be permitted to keep the case in Pennsylvania.

As noted above, the court rejected the Plaintiff’s arguments and granted the Defendants’ Motion to Transfer.


Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 14, 2021).

Court Allows Discovery of Forgery Based Evidence in Support of Negligent Hiring, Supervision, and Retention Claim in an MVA Case

In the case of Wolo v. Lennon, No. 2019-CV-6855 (C.P. Lacka. Co. Oct. 7, 2021 Minora, S.J.), Senior Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed a Plaintiff’s Motion to Compel what the Plaintiff had dubbed as “forgery based discovery.”

According to the Opinion, this case arose out of a motor vehicle accident involving a Defendant school bus driver. In the Plaintiff’s Complaint, the Plaintiff alleged claims of negligent hiring, supervision and/or retention of the Defendant bus driver by the Defendant bus company.

During the course of discovery, the Plaintiff requested signature exemplars from the Defendant driver and another employee of the busing company based upon a purported suspect appearance of the bus driver’s signature on four (4) separate documents within his employment file.

The court noted that, during the course of discovery, the Defendant bus driver questioned the veracity of his signatures at his deposition and even noted in one (1) instance that his name was misspelled.

The Defendants objected to the discovery by arguing, in part, that this case centered on injuries related to a subject motor vehicle accident and not to forgery issues.

The court noted that the Defendant’s position failed to consider the Plaintiff’s negligent hiring cause of action against the Defendant bus driver. In this regard, the court noted that, in her Complaint, the Plaintiff alleged that the bus company was negligent not only in hiring the bus driver but for failing to train him properly and for allowing him to operate a commercial motor vehicle without the required qualifications.

Judge Minora noted that the documents in the bus driver’s personnel file raised questions as to the authenticity of the bus driver’s signature. Some of these documents purported to certify the bus driver’s receipt from his employer of certain written materials, training documents, and policy documents, the receipt of which by a commercial driver was required by federal regulations. 

The court noted that, arguably, evidence which would show that the bus driver did not receive these materials or that the signatures certifying his receipt of the same were forged, court tend to establish that the bus company was allegedly negligent in its hiring, supervision, and/or retention of the bus driver as an employee.  As such, the discovery was allowed.

While the court did essentially grant the Plaintiff’s Motion to Compel the production of documents with exemplar signatures, the court limited the scope of the number of documents that were required to be produced by the Defendant.

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

I send thanks to Attorney Gerard W. Gaughan of O'Donnell Law in Kingston, PA for bringing this case to my attention.

Source of image:  Photo by Austin Pacheco on Unsplash.com.

COVID-19 Business Interruption Coverage and Bad Faith Claims Dismissed

In the case of Round Guys Brewing Co. v. Cincinnati Ins. Co., No. CV-20-6252 (E.D. Pa. Sept. 22, 2021 Sanchez, J.), the court found that no coverage was due in this COVID-19 business loss coverage case.

After finding no coverage due, the court also dismissed the Plaintiff’s claim for bad faith after noting that the carrier’s position in denying coverage in this case was widely supported by the case law. As such, the court noted that the carrier’s denial of coverage in this business interruption coverage case was reasonable and that the Plaintiff had failed to adequately pled the elements of bad faith.

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

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman Krekstein & Harris and the writer of the excellent Pennsylvania New Jersey Insurance Bad Faith Case Law blog for bringing this case to my attention.

Eastern District Federal Court Dismisses UIM Bad Faith Claim Due to Insufficient Facts

In the case of Kelly v. Progressive Advanced Ins. Co., No. CV 20-5661 (E.D. Pa. Sept. 27, 2021 Jones, II, J.), the court dismissed a UIM bad faith claim after finding that the Plaintiff had failed to plead sufficient facts. The court did grant the Plaintiff leave the amend the Complaint.

At issue were the Plaintiff’s claims of an insufficient claims investigation by the carrier and other poor claims-handling allegations.

While the court emphasized that a bad faith claim against an insurance company can include claims of a lack of investigation, unnecessary or unfounded investigation, failures to communicate with an insured, or failure to properly acknowledge or act upon a claim, as well as other poor claims handling assertions, a Plaintiff cannot merely say that a carrier acted unfairly but instead “must describe with specificity what was unfair.”

Judge Jones additionally noted that a Complaint alleging bad faith must specifically include facts to address who, what, where, when, and how the alleged bad faith conduct occurred. The court reiterated that bare bones bad faith pleadings in the federal district courts of Pennsylvania are routinely dismissed.

Turning the Complaint before it, the court in this Kelly case found that the pleadings by the Plaintiff were inadequate and were devoid of facts necessary to infer a plausible bad faith claim. The court noted that, other than the date of the accident, the Complaint did not contain any references to dates or timespans with regards to allegations that the carrier’s alleged actions were untimely.

The court additionally noted that the Plaintiff’s claims that the carrier’s lack of a thorough claims assessment was unreasonable but that the Plaintiff did not provide any indication as to how these alleged deficiencies were unreasonable.

The Complaint was also found to lack any factual content to suggest that the Defendant carrier lacked a reasonable basis for denying the UIM coverage or that the Defendant knew or recklessly disregarded the lack of any reasonable basis, which is the bad faith standard.

The court therefore granted the Motion to Dismiss filed by the carrier but allowed the Plaintiff the right to amend.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman Krekstein & Harris for bringing this case to my attention. Attorney Applebaum is also the creator of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.

Source of Image:  Photo by Brett Jordan from Pexels.com.

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