CUMMINS LAW IS HIRING

 

Associate Attorney - Insurance Defense Firm

Clarks Summit, PA

Cummins Law, an Insurance Defense Firm located in Clarks Summit, PA, seeks a full-time associate attorney preferably with 1-3 years experience.  Judicial clerkship experience a plus.  Attorney will be tasked with handling all aspects of the defense of civil litigation matters, with a focus on auto accident and premises liability matters.  Excellent writing, communication, research and analytical skills required.

Cummins Law offers a friendly, fast-paced office environment along with an excellent benefits package, including a 401(k) plan, and medical, dental, and vision coverage.

Interested candidates should submit a cover letter, resume and writing sample along with salary requirements to info@CumminsLaw.net.

Case Dismissed Due To Untimely Filed Amended Complaint Being Found to Be a Legal Nullity

In the non-precedential decision by the Pennsylvania Superior Court in the case of Tabb v. Thomas, No. 72 EDA 2022 (Pa. Super. March 2, 2023 Panella, P.J., Stabile, J. and King, J.) (Mem. Op. by Panella, P.J.), the Pennsylvania Superior Court addressed the ability of a Plaintiff to file an Amended Complaint after the time allowable for the same has expired. 

In this case, which arose out of a slip and fall matter, the Plaintiff started the lawsuit with a Writ of Summons and then filed a Complaint. The Defendant responded with Preliminary Objections. When the Plaintiff did not reply to the Preliminary Objections, the court sustained the same and dismissed the Plaintiff’s Complaint.

Thereafter, without leave of court, or agreement or consent of the Defendant, the Plaintiff filed an Amended Complaint raising essentially the same claims. The Defendant again filed Preliminary Objections raising the same issues as raised before and adding an argument that Amended Complaint was untimely filed and that the Plaintiff had failed to seek the leave of court or the Defendant’s agreement prior to the filing of the Amended Complaint.

In response, the Plaintiff filed a Second Amended Complaint, again without the permission of the trial court or the agreement of the Defendant. The Defendant responded with Preliminary Objections again.

Thereafter, the Plaintiff filed a Third Amended Complaint, again without the permission of the trial court or the agreement of the Defendant. The Defendant raised the same arguments in his Preliminary Objections, again asserting that the Plaintiff had failed to seek leave of court or the Defendant’s agreement to file the additional Amended Complaint. 

The trial court sustained the Defendant’s Preliminary Objections in this regard, finding that the Plaintiff had failed to seek leave of court or the agreement of the Defendant to file the Amended Complaint. The court also held that the Amended Complaints were void and should be stricken. As such, the case was dismissed by the trial court with prejudice. The Plaintiff then filed this appeal.

On appeal, the Pennsylvania Superior Court affirmed the dismissal of the case by the trial court.

The Superior Court rejected arguments by the Plaintiff that what was before the court were mere technical errors that the Plaintiff should not be punished for due to his counsel’s failure to strictly adhere to the court rules. 

The Superior Court also rejected an argument by the Plaintiff that amendments to allegations in a Complaint must be liberally allowed to secure a speedy determination of the action. 

The Superior Court additionally rejected the Plaintiff’s arguments that the Amended Complaint should be allowed as the Defendant did not suffer any prejudice given that the Defendant was aware of the claims presented.

The trial court additionally rejected the Plaintiff’s separate argument that, even though the trial court struck the various Amended Complaints, the original Writ of Summons remained valid such that the Plaintiffs should be allowed to further litigate the Writ.

In so ruling, the Pennsylvania Superior Court confirmed that a Plaintiff has an automatic right to amend the Complaint within twenty (20) days of the filing of a Defendant’s Preliminary Objections as per Pa. R.C.P. 1028(c)(1).

The Superior Court also noted that, if the Amended Complaint is not filed within twenty (20) days, the Plaintiff must obtain either the Defendant’s consent or leave of court to file an Amended Complaint under the mandate of Pa. R.C.P. 1033(a).

In this matter, the Pennsylvania Superior Court held that, given that the Plaintiff did not ever request leave of court to file an Amended Complaint nor the consent of the Defendant to do the same, the Plaintiffs later filed Amended Complaint was a legal nullity.

The court rejected the Plaintiff’s argument that the trial court had and an obligation to sua sponte allow an amendment of the Complaint.

Given the Plaintiff’s failures, the Superior Court in Tabb agreed with the trial court's ruling and upheld the finding that that the Plaintiff had waived his claims under the circumstances presented. 

Given that the Plaintiff is found to have waived his claims, the appellate court affirmed the trial court’s dismissal of the case with prejudice.

Although the Tabb decision was listed as non-precedential, the Superior Court cited to the Pennsylvania Rules of Civil Procedure and precedential appellate court decisions on point to support its decision in this matter.    

Anyone wishing to review this non-precedential decision of the Pennsylvania Superior Court in the case of Tabb v. Thomas may click this LINK.

Source: “Pennsylvania Civil Law Case Alerts Issued by Fastcase.com.” (March 4, 2023).

Source of image:  Photo by Jon fabrikasimf on www.freepik.com.

Pennsylvania Superior Court Reviews Immunity Provisions of Mental Health Procedures Act in Case of Voluntary In-Patient Examinations

In the case of Matos v. Geisinger Medical Center, No. 1189 MDA 2021 (Pa. Super. March 10, 2023 Stabile, J., Bender, P.J.E., Stevens, P.J.E.) (Op. by Stabile, J.), the court, addressing an interlocutory appeal that was allowed by permission, affirmed the trial court's denial of the Defendant's motion for summary judgment in a medical malpractice case involving the application of the Mental Health Procedures Act.

The Superior Court agreed that a Defendant is not absolutely immunized from a Plaintiff’s lawsuit under the Mental Health Procedures Act.

According to the Opinion, in this matter, the Defendants allegedly refused a patient’s attempt to commit himself voluntarily for in-patient treatment and, shortly thereafter, that patient killed his girlfriend, who was the Plaintiff’s decedent.

The court found that the immunity requirements under the Mental Health Procedures Act are different for involuntary and voluntary treatment scenarios.

The Pennsylvania Superior Court ruled that mental health facilities can be liable for the refusal to provide voluntary in-patient examinations and treatment when the refusal amounts to a willful misconduct or gross negligence on the part of the Defendant.

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


I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm.

INTERVIEW: The Status of Zoom In the Courtroom in Pennsylvania

I was recently interviewed by Attorney Matt Doebler of the Pittsburgh, PA law firm of Pribanic & Pribanic on his Youtube Channel known as the Online Litigator. The topic of discussion was "Zoom Court in PA: Where Do We Stand?"

To view the interview in its entirety, please click this LINK.

To the extent you may wish to jump to particular topics that were discussed, I offer up the following more specific Links.

We talked about the types of proceedings that are on the table for Zoom court in Pennsylvania. (To jump straight to this portion of the video, click here.).

We reviewed the current status of efforts to enact a statewide rule on Advanced Communication Technology (ACT) in the courtrooms of Pennsylvania. (To jump straight to this portion of the video, click here.).

We talked about the Lackawanna County local rule concerning Zoom court. (To jump straight to this portion of the video, click here.).

We discussed the fact that, so far, Lackawanna County is the only Pennsylvania jurisdiction to have a local rule on remote court. (To jump straight to this portion of the video, click here.).

We talked about what--exactly--the Lackawanna County local rule says. (To jump straight to this portion of the video, click here.).

We talked about the Lackawanna County local rule serving as a possible model for other jurisdictions to follow in adopting their own local rules. (To jump straight to this portion of the video, click here.).

I discussed the hope that the Pennsylvania Supreme Court will still revisit the issue and pass a statewide rule of civil procedure addressing ACT. (To jump straight to this portion of the video, click here.).

Finally, we talked about the positive response to Zoom court from lawyers and judges in Lackawanna County. (To jump straight to this portion of the video, click here.).


I thank Attorney Matt Doebler of the Pittsburgh, PA law firm of Pribanic & Pribanic for the opportunity to discuss this important topic on his Youtube Channel known at the Online Litigator.

Pribanic & Pribanic is a personal injury firm in Pittsburgh that represents injured parties in cases involving medical malpractice, birth injuries, motor vehicle accidents, products liability, slip or trip and falls, as well as involving workers compensation issues.

I encourage Tort Talkers to check out Attorney Doebler's Youtube Channel at this LINK now and in the future for updates and tips on the practice of law through the use of advanced communication technology (ACT), or Zoom and the like.

Certificate of Merit Report Found To Be Good Enough To Start Case, But Not To Take Case To Trial

In the case of Dodson v. Univ. of Pitts. Med. Ctr., No. CV-19-01803 (C.P. Lyc. Co. Jan. 9, 2023 Linhardt, J.), the court granted a medical malpractice Defendant’s Motion for Summary Judgment after finding that, while a Plaintiff produced a physician’s statement that satisfied the Pennsylvania Rules of Civil Procedure regarding Certificate of Merit given that statement asserted that deviations from some applicable standard of care likely caused the Plaintiff’s injuries, that same statement was found to have failed to establish the elements of the Plaintiff’s medical malpractice claim to a prima facie level to enable the Plaintiff to proceed to a jury trial.

This matter arose out of medical treatment that included surgery which the Plaintiff alleged resulted in a serious infection that required additional surgery. The Plaintiff alleged that the Defendant was negligent in the performance of both procedures, which resulted in a below knee amputation.

The court found that the Plaintiff’s physician’s statement was conclusory, lacking in detail, and was based upon limited medical information. While the Certificate of Merit was challenged earlier in the case, the case was allowed to proceed because the Certificate of Merit asserted some deviation from an applicable standard of care and contained a conclusion that those deviations likely caused the Plaintiff harm.

However, at this later summary judgment stage, the court noted that, in medical malpractice suits, parties are required to produce their expert reports in order to proceed to a trial. In this matter, the Defendant asserted that the Plaintiff failed to produce any expert report other than the above statement that had been provided relative to the Certificate of Merit.

The court agreed and found that the statement provided by the Plaintiff with the Certificate of Merit failed to establish the elements of the Plaintiff’s medical malpractice claim to even a prima facie level.

The court noted that, when it had previously denied the Defendant’s Motion to Strike the Certificate of Merit, the court had foreshadowed in that decision that the Plaintiff had failed to produce any evidence that any particular doctor had violated any duty of care while treating the Plaintiff.

Judge Linhardt otherwise noted that the mere fact of an infection, or of a surgical complication, in and of itself, was insufficient, in and of itself, to establish that negligence had occurred, let alone who was responsible for it.

As such, the Defendant’s Motion for Summary Judgment was granted.

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


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

Pennsylvania Superior Court Finds That NJ Transit Not Entitled To Sovereign Immunity Relative To Bus Accident in Pennsylvania

In the case of Galette v. N.J. Transit, No. 2210 EDA 2021 (Pa. Super. March 21, 2023 Bowes, J., Lazarus, J., and Olson, J.) (Op. by Bowes, J.), the court addressed whether the New Jersey Transit Corporation was entitled to sovereign immunity from a personal injury motor vehicle accident lawsuit arising out of an accident that occurred in Philadelphia.

The trial court had denied the Motion to Dismiss filed by N.J. Transit based upon an argument that that Defendant was an arm of the State of New Jersey and was protected by the state afforded governmental and sovereign immunities such that the Plaintiff’s Complaint was barred and should be dismissed.

On appeal, the Pennsylvania Superior Court affirmed the trial court's denial of the motion to dismiss.

N.J. Transit had asserted that the case against it should have been dismissed for lack of jurisdiction where N.J. Transit, as a foreign state entity, did not provide consent to be sued in another state and where that Defendant had rightfully asserted its state sovereign immunity protections under the United States Constitution.

After reviewing the history of the legal doctrine of sovereign immunity, which dates back to English common law, and after examining the relevant case law, including United States Supreme Court precedent, the Pennsylvania Superior Court rejected N.J. Transit’s arguments that it should be dismissed from the case.

The Superior Court noted that the issue of sovereign immunity often rises in the context of interstate lawsuits. The court noted that, under the law, it was not automatically incumbent upon one State to recognize the sovereign immunity of another State.

The court also noted that, although the State of New Jersey was not directly named as a Defendant in this suit, well-settled law holds that sovereign immunity does also extend to entities which are agents or instrumentalities of a state such that a lawsuit brought against the entity would, for all practical purposes, be considered to be a suit against the state itself.

As such, the court addressed the issue of whether N.J. Transit was an instrumentality of the State of New Jersey as it alleged.

The Superior Court noted that N.J. Transit relied upon a previous decision out of the Third Circuit Court of Appeals which had previously held that N.J. Transit does indeed qualify as an instrumentality of the State of New Jersey for purposes of sovereign immunity.

However, the Superior Court noted that the holdings of the Third Circuit are not binding upon the Pennsylvania Superior Court.

Turning to Pennsylvania’s own 6-part test on whether sovereign immunity should be applied, the court in this Galette case ultimately found that that test was not dispositive on the question.

As such, the court noted that it was required to address whether allowing N.J. Transit to be sued would thwart the two principal purposes of the Eleventh Amendment, that is, the protection of New Jersey’s dignity as a sovereign State and the protection of New Jersey’s Treasury against involuntary depletion of funds by virtue of lawsuits brought by private persons.

In coming to its ruling, the Pennsylvania Superior Court analogized cases that are brought against SEPTA, or the Southeastern Pennsylvania Transit Authority, in Pennsylvania. 

The court noted that, in such lawsuits, those suits proceed against SEPTA alone, as a wholly independent entity and without the involvement of the Commonwealth of Pennsylvania. As such, the Commonwealth cannot be subject to any Order of Court as a result of such a personal injury suit. Therefore, no right or interests of the Commonwealth would be affected by the outcome of any lawsuit against SEPTA in Pennsylvania courts. Consequently, personal injury lawsuits against SEPTA do not pose any danger that the Commonwealth itself would be involuntarily subject to and controlled by the mandates of the courts, without its consent, at the instance of private parties.

Based upon this analysis, the court in this Galette case found that the particulars of N.J. Transit’s status with respect to the State of New Jersey was similar. N.J. Transit was noted to be a distinct legal entity that is empowered to sue and to be sued in a capacity that is independent from the State of New Jersey.

The court found that there was no risk to the sovereign dignity of the State of New Jersey in permitting a suit against N.J. Transit to proceed. The court also noted that any potential judgment against N.J. Transit would not have any discernible impact on the New Jersey Treasury.

Based upon this analysis, the court found that the Plaintiff’s personal injury lawsuit posed no threat either to the sovereign dignity or the State Treasury of New Jersey. As such, the court concluded that N.J. Transit was not an arm of the State of New Jersey in this context. 

Consequently, the court ruled that N.J. Transit was not entitled to protections of sovereign immunity which it had asserted. Accordingly, the trial court’s denial of N.J. Transit’s Motion to Dismiss was affirmed by the Pennsylvania Superior Court in this Galette case.

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


Source: “Pennsylvania Civil Law Case Alerts,” Fastcase.com as provided by Pennsylvania Bar Association.

Federal Court Allows Amendment To Complaint To Add Punitive Damages Claims in Trucking Accident Case

In the case of Stelzer v. Stewart Logistics, Inc., No. 1:21-CV-02097 (M.D. Pa. March 10, 2023 Kane, J.), the court granted a Plaintiff’s Motion to Amend under F.R.C.P. 15(a) in a trucking accident case to allow the Plaintiff to add a claim for punitive damages after discovery was found to have supported such a claim.

The court held that the punitive damages claim was neither late nor unduly prejudicial. In this regard, the court stated that the fact that punitive damages are not covered by insurance is not considered to be prejudicial as that term is defined in this context.

The court otherwise found that the Plaintiff’s requested amended allegations of both a subjective appreciation of the risk and an alleged conscious disregard of the risk of danger to others were plausible under the amended facts. More specifically, the Plaintiff was alleging that the Defendant driver allegedly concealed a medical condition, falsified federally required time logs, and ignored lane markings on the road.  As such, allowing the amendment was deemed not to be a futile effort on the part of the Plaintiff.

The court additionally noted that the Defendant driver’s employer could be vicariously liable for punitive damages under the case presented.

The court also ruled that the claim for direct punitive damages against the employer were also plausible on the negligent hiring claim.

As such, the Plaintiff was granted leave to amend his Complaint.    

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 James M. Beck of the Philadelphia law office of the Reed Smith law firm.

Source of image:  Photo by Brian Stalter on www.unsplash.com.