Tort Talk: Updates and Trends in Pennsylvania Civil Litigation Law

Judge Mazzoni of Lackawanna County Addresses Notice Requirement in UM Case

2013-05-14T16:20:00.000-04:00

In his recent April 5, 2013 decision in the case of State Farm Mutual Automobile Insurance Company v. Roshan, No. 2010-Civil-3105 (C.P. Lacka. Co. 2013 Mazzoni, J.), Judge Robert A. Mazzoni entered a verdict in favor of Plaintiff, State Farm, in a nonjury proceeding concerning a declaratory judgment action involving a claim for automobile insurance benefits with regards to a “miss and run accident.”

Judge Robert A. Mazzoni
Lackawanna County

The issue before the court was whether the Defendant injured party complied with the notice requirements of the MVFRL 75 Pa. C.S.A. §1702 concerning an accident with “an unidentified motor vehicle.”

Judge Mazzoni found, based upon the record before the court, that the Defendant injured party failed to report the accident to “the police or proper governmental authority” within thirty (30) days as required under §1702. As such, a non-jury verdict in favor of State Farm was entered by the court.

Anyone desiring a copy of this Opinion may click this LINK.

Judge Nealon of Lackawanna County Addresses Proper Pleading of a Complaint

2013-05-14T16:19:00.000-04:00

In his recent decision in the case of Rogers v. Thomas, No. 2012 - CV - 1464 (C.P. Lacka. Co. May 10, 2013 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas entered a demurrer on claims asserted against a parent for the alleged shooting of another by an adult child. The court dismissed that claim after finding that there was no evidence to show that the parent had any control over the gun used in the alleged shooting.

Judge Nealon's Opinion is also interesting for the analysis of the current law on a variety of issues pertinent to the proper pleading of a Complaint in a civil litigation, including such issues as:

Erroneous Pleading of Punitive Damages Claim as Independent Cause of Action;
Striking of Impertinent Matters in Complaint;
Sustaining Objections to repeated use of nonspecific term "Defendants" in allegations of the Complaint against multiple Defendants, without specifying which allegations applied to what defendants.

Anyone wishing to review Judge Nealon's Opinion in the Rogers case may click this LINK.

Judge Zulick of Monroe County Denies Punitive Damages Based Upon Cell Phone Use in Unique Case

2013-05-13T09:41:00.003-04:00

Segway Device

In the case of Platukis v. Pocono Segway Tours, LLC, PICS Case No. 13-0967 (C.P. Monroe Co. April 8, 2013 Zulick, J.), Judge Arthur Zulick of the Monroe County Court of Common Pleas ruled that allegations in a Complaint simply asserting that a Defendant was using a cell phone while operating a "motor vehicle," in this case a Segway, did not give rise to the state of mind necessary to find that the Defendant acted recklessly and, as such, Preliminary Objections to the punitive damages claims were granted.

This matter arises out of an incident that occurred when the Plaintiff was taking part in a Segway tour provided by the Defendant. While driving her Segway, the Plaintiff was involved in a collision with another Segway. The person on the other Segway was using his cell phone and allegedly operating the Segway at an excessive rate of speed. The Plaintiff filed suit against the Defendants and alleged punitive damages against the Segway operator and the tour operator.

The Defendants filed Preliminary Objections seeking to strike the punitive damages Complaint.

The trial court noted that, since the Plaintiff did not allege that the other Segway driver had any “evil motive,” the Plaintiff were required to allege that the Co-Defendants Segway driver’s actions were outrageous and that such outrageous behavior was due to his reckless behavior. Reviewing the Complaint in a light most favorable to the Plaintiff, the court found that the Plaintiff did not allege facts sufficient to support the punitive damages claim.

I do not have a copy of this decision. Anyone desiring a copy of this decision may contact the Pennsylvania Law Weekly Instant Case Service at 1-800-276-7427 and provide the above noted PICS Case No. and pay a small fee.

Source: Pennsylvania Law Weekly Digest of Recent Opinions (April 30, 2013).

Plaintiff Permitted to Consolidate Two Separate Motor Vehicle Accident Lawsuits Under Pa.R.C.P. 213

2013-05-12T19:40:00.003-04:00

Judge R. Stanton Wettick of the Allegheny County Court of Common Pleas recently allowed the consolidation of two entirely separate motor vehicle accident lawsuits by a same Plaintiff in the case of Jackson v. Drew, No. GD-12-008737 (C.P. Allegheny April 24, 2013 Wettick, J.).

Judge R. Stanton Wettick
Allegheny County

According to Judge Wettick's Opinion, the Plaintiff was involved in two separate car accidents in Allegheny County. The Plaintiff asserted that the second accident aggravated his same injuries from the first accident. The Plaintiff filed separate suits against the drivers. Both suits were filed in Allegheny County.

Thereafter, the Plaintiff filed a motion under Pennsylvania Rule of Civil Procedure 213 to consolidate the cases alleging a concern that both defendants in the cases would try to blame the other for any of the injuries asserted.

Judge Wettick granted the motion and consolidated the cases under the rationale that both accidents arose out of a common question of law, i.e., that the common question of fact as to what injuries were caused by which accident.

In his Opinion, Judge Wettick distinguished the separate standards applicable to permissive joinder of separate claims under Pa.R.C.P. 2229.

Anyone desiring a copy of this decision may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA firm of Schmidt Kramer for bringing this case to my attention.

Commentary:

For a similar result under Pa.R.C.P. 213, see Scoggins v. Hardy, 10 Pa.D.&C.4th 64 (C.P. York 1991).

For a contrary analysis under an application of the permissive joinder rules under Pa.R.C.P. 2229 pertaining to Complaints, see Kalker v. Moyer, 921 A.2d 21 (Pa.Super. 2007); Alper v. Yellow Cab Co., 12 Pa.D.&C.3d 355 (C.P. Phila. Co. 1979).

From the above, it appears that, although two separate accidents can not be pled in the same Complaint under Pa.R.C.P. 2229, in certain circumstances, trial courts may use their discretion to consolidate matters under Pa.R.C.P. 213.

Research Tools on Tort Talk

2013-05-09T21:13:00.000-04:00

Most Tort Talkers receive their Tort Talk info by way of email. If you have ever had the situation where you thought "I know I've seen a recent case on Tort Talk on this issue," this blog post is for you.

Tort Talk is not only a way to get updates on new cases and trends, it can also serve a a kickstart to your research if you actually go to the Tort Talk site at www.TortTalk.com. On the site itself there are a number of research tools (http://www.TortTalk.com/) to help you find the case or cases or article you are looking for.

Note that Tort Talk is NOT an exhaustive legal research site--you should always supplement your research on your issue presented elsewhere to ensure that you have a thorough review of the area of law in question.

Here are the Tools available on Tort Talk:

Search This Blog Box

The Search This Blog Box in the upper right hand column of the site allows readers to type in search terms or key words to look for posts on that particular topic. By typing in your search term in the white box (delay damages, limited tort, slip and fall, or a case name, etc.), you will be sent to a page that will list each Tort Talk post that covers that topic. You can then click on each post that comes up to read further.

Post-Koken Scorecard
You can always access the Post-Koken Scorecard to check on the status of decisions in your county on Post-Koken issues by looking and scrolling down the far right hand column of the blog and clicking on the date under the Label "Post-Koken Scorecard."

Facebook Discovery Scorecard

You can always access the Facebook Discovery Scorecard to check on the status of Pennsylvania decisions on Facebook Discovery issues by looking and scrolling down the far right hand column of the blog and clicking on the date under the Label "Facebook Discovery Scorecard."

Labels

Also down on the right hand column of the blog is a section called "Labels," which is another tool that you can use to find cases or articles on a specific topic. By clicking on the Label that's specific to your research ("Bad Faith," "Limited Tort," etc.) you will be sent to a page that list each and every Tort Talk post that touches upon that topic. You can then click on each title to read further.

My Published Articles

Down in the middle of the right hand column of the blog is also a box under the Label "My Published Articles" in which are listed some of the most recently published articles of mine that have been posted online at the www.JDSupra.com website. If you are looking for older articles you can always click on the JDSupra box to go to that site where a full listing of the articles can be accessed and searched.

I note that the Pennsylvania Law Weekly does not allow me to post my articles on the JDSupra site is it is a competitor. However, I am permitted to post my Law Weekly articles on Tort Talk which I have done since I started the blog. You can find those articles by typing in key words or terms into the Search this Blog box. Please also feel free to email me directly for a copy of any of my articles that you may be looking for(dancummins@comcast.net).

Links

Last but certainly not least, down on the right hand column is a list of "Links" I have created to other sites, including my Firm's website and other online professional profiles that I have created along with links to some other legal and non-legal-related websites that may be of interest.

Thanks again for reading Tort Talk and thanks to all who have provided tips on breaking news and cases of note. I am grateful for your interest and support. If I should be able to you help out in any way, please do not hesitate to contact me at dancummins@comcast.net.

Registration Open for Lackawanna Pro Bono's June 3, 2013 Golf Tournament

2013-05-09T21:08:00.004-04:00

Registration Open for Pennsylvania Defense Institute's Annual Meeting at Bedford Springs Resort (July 18-19, 2013)

2013-05-09T21:07:00.001-04:00

Omni Bedford Springs Resort
Bedford Springs, PA

Click this LINK to go to the Registration Form for the PDI Annual Meeting set to take place at the Bedford Springs Resort in Bedford Springs, PA on July 18-19, 2013.

The PDI has arranged for a full slate of CLE opportunities, great speakers, and resort activities, including but not limited to golf.

Eastern District Federal Court Dismisses UIM Bad Faith Claim

2013-05-07T08:15:00.002-04:00

In a recent memorandum Opinion, the Eastern District Federal Court of Pennsylvania in Clark v. Progressive Advanced Insurance Company, No. 12-6174 (E.D. Pa. April 26, 2013 Ludwig, J.) dismissed a bad faith claim in an underinsured (UIM) motorists case.

This case involved a bad faith claim filed under Section 8371 of the Pennsylvania Judicial Code and was essentially based upon the Plaintiff's claim of an inadequate offer by the insurance company in a UIM case. There were $300,000 in UIM limits available and Progressive made a settlement offer of $18,578.00.

After reviewing the record before it, the court determined that the facts pled were not sufficient to support a bad faith claim in this context. Accordingly, the claim was dismissed without prejudice.

Anyone wishing to review this Opinion in Clark v. Progressive may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer and Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Philadelphia County Court of Common Pleas Upholds Allstate Forum Selection Clause in UM Case

2013-05-07T08:14:00.000-04:00

The Philadelphia Court of Common Pleas upheld Allstate Insurance Company’s “forum selection clause in the court’s recent Order without Opinion in the case of Motta v. Allstate Ins. Co., March Term 2013, NO. 0839 (C.P. Phila. Co. April 22, 2013)

In this Post-Koken uninsured motorist (UM) matter, the Allstate declarations page listed the named insured’s address as being in located in Berks County. The accident occurred in Philadelphia County.

Allstate responded to the Complaint filed in Philadelphia County with Preliminary Objections in the form of a motion to transfer venue.

As noted, the court issued an Order sustaining Allstate’s Preliminary Objections and transferring venue to Berks County.

Anyone wishing to review this one line Order only decision in Motta may click HERE.

I send thanks to Attorney Ken Goodman of the Reading law firm of Rabenold, Koestel & Scheidt for bringing this case to my attention.

Registration Open for Lackawanna Pro Bono's Golf Tournament

2013-05-03T11:03:00.002-04:00

Tort Talk Expo 2013 a Success - THANKS!

2013-05-02T12:43:00.001-04:00

The Tort Talk Expo 2013 that took place on April 18, 2013 at the Mohegan Sun Casino was a well-attended program with over 75 attendees, which included claims professionals, plaintiff's counsel, and defense counsel.

I provided an Auto Law/Post-Koken Update which was followed by a Civil Litigation Update presented by Malcolm MacGregor, Esq. and Michael McDonald, Esq. of the Scranton law firm of McDonald & MacGregor.

Dr. John Kline, a physiatrist with Northeastern Rehabilitation Associates presented on Shoulder and Knee injuries.

The Program concluded with a "View from the Bench" program moderated by Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price and presided over by Judge Carmen Minora of the Lackawanna County Court of Common Pleas and Judge Michael Vough of the Luzerne County Court of Common Pleas.

The CLE seminar was then followed by a Cocktail Reception at the Breaker's Lounge in the Mohegan Sun Casino.

I send great thanks to all of the presenters, table vendors, and advertisers who helped make the program a success. Thanks also to all of the attendees who took time out of their busy schedules to attend the event. I really appreciate it.

Anyone desiring a copy of the written materials from the Tort Talk Expo 2013 may click this LINK. This volume, containing in excess of 100 pages contains an Auto Law Update and a Civil Litigation Update written by myself along with Dr. Kline's powerpoint presentation on his Shoulders and Knees program.

Intoxication Evidence Precluded Where Evidence Lacking

2013-04-30T09:55:00.000-04:00

In the Lycoming County Court of Common Pleas case of Jacobs v. Bilbay, No. 11-00, 118 (C.P. Lycoming Jan. 25, 2013 Gray, J.), Judge Richard A. Gray addressed a Defendant's motion in limine in an auto accident case involving punitive damages claims based upon alleged intoxication of the Defendant and the Defendant's fleeing of the scene of the accident.

The Defendant filed a motion in limine to preclude the Plaintiff from presenting evidence of alcohol because liability was admitted and there was no evidence of intoxication.

The trial court granted the motion in limine and precluded the Plaintiff from presenting evidence of Defendant's alleged intoxication and fleeing the scene of the collision . The court reasoned that the mere pleading of intoxication and careless and/or reckless conduct does not mean that the Plaintiff can automatically introduce such evidence at trial.

According to the Opinion, the only evidence in the record of possible intoxication was that: (1) the defendant allegedly drank two beers before the collision, (2) the accident occurred at 2 a.m., and (3) the plaintiff was scared.

The court found that this evidence was insufficient proof of intoxication since there was no sufficient corroborating evidence to establish the requisite degree of intoxication. For example, the plaintiff failed to offer blood alcohol evidence, witness testimony as to alcohol on breath, slurred speech, or stumbling, etc., with respect to the defendant.

Judge Gray also ruled that mere evidence of the Defendant's fleeing of the scene of the accident did not create a jury issue on the punitive damages claim, in and of itself, as the Defendant allegedly did not realize that she had struck plaintiff.

The court also noted that evidence of a Defendant's not stopping for an accident was not admissible for alleged impeachment purposes in this case since such evidence had little or no probative value and was extremely prejudicial where the Defendant admitted liability.

Anyone desiring a copy of this decision may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg law office of Schmidt Kramer for bringing this case to my attention.

Judge Nealon of Lackawanna County Addresses Facebook Discovery Issue

2013-04-23T22:08:00.000-04:00

Judge Terrence R. Nealon of the Lackwanna County Court of Common Pleas has weighed in on the Facebook Discovery question as a case of first impression in the matter of Brogan v. Rosenn, Jenkins & Greenwald, No. 08 - CV - 6048 (C.P. Lackawanna County 2013 Nealon, J.).

In this matter, the Plaintiff was seeking the Facebook login name, user name, and password of a deponent witness who happened to be a paralegal in a defendant insurance company's claims department. According to the opinion another insurance company witness testified that he had communicated via Facebook with that paralegal regarding depositions in the matter. The carrier refused to release the paralegal's login info, user name, or password. The Plaintiff filed a discovery motion to compel that information.

Judge Terrence R. Nealon
Lackawanna County

In a thorough and detailed Opinion outlining the current status of the law on Facebook Discovery (and in which the court cited to Tort Talk in footnote three!), Judge Nealon denied the Motion.

Judge Nealon ruled that, in order to obtain discovery of private information on social media sites the seeker of the information must, at the very least, show that the information sought is relevant to the case at hand. One way to do that is to show that the publicly available information on the site at issue reveals information pertinent to the matter and arguably calls the claims or defenses at issue in the suit into question.

Judge Nealon also held that social media discovery requests must be properly framed so that only relevant and non-privileged information is sought and produced.

In this matter, the Court found that the plaintiffs had not established the relevance of the information on the paralegal's private Facebook pages such that the demand for the paralegal's disclosure of the user name and password was overly intrusive and would cause unreasonable embarrassment and burden to the paralegal in violation of the Pennsylvania Rules of Civil Procedure pertaining to discovery. As such, the motion to compel was denied.

Commentary:

Judge Nealon's Opinion is another example of the courts applying the same ol' rules of discovery to a new set of circumstances.

The court in Brogan basically concluded that all of these new forms of digital technology (i.e., computer generated animations as demonstrative evidence, text messages, Facebook discovery, Twitter etc.) should be evaluated under the same, long-standing rules applicable to more conventional forms of paper discovery and evidence. As Judge Nealon noted on p. 15 of his Opinion, "To that extent, the resolution of social media discovery disputes pursuant to existing Rules of Procedure is simply new wine in an old bottle."

It is noted that Judge Nealon's ruling differs from other Pennsylvania decisions in that he held that a discovery request for production of the account holder's username and password for unfettered access to the user's private information, as opposed to the actual production of photos, etc. posted on a social networking site, is too broad, overly intrusive and not stated with the "reasonable particularity" required by the Pennsylvania discovery rules. In this regard, Judge Nealon utilized an analogy of a party having a right to demand production of a relevant photo, but not being entitled to inspect every photo album that someone may possess in the hopes of uncovering a relevant photo.

By requiring the social media discovery request to be submitted with reasonable particularity, the court was seeking to prevent "fishing expeditions" that are frowned upon by the Rules and decisions.

Anyone wishing to review Judge Nealon's Opinion in Brogan may click HERE.

Check out the updated Facebook Discovery Scorecard HERE. Note that you can see the various Facebook Discovery decisions from around the Commonwealth of Pennsylvania by clicking on the case names on the Tort TalkFacebook Discovery Scorecard. That Scorecard, along with the Post-Koken Scorecard is always freely accessible by going to the Tort Talk blog at www.TortTalk.com and scrolling down the right hand column.

Pennsylvania Superior Court Addresses Statute of Limitations for UIM Claim

2013-04-22T10:56:00.003-04:00

Tort Talkers may recall that I previously reported on the Montgomery County Court of Common Pleas decision in Hopkins v. Erie Insurance Company regarding the analysis of a statute of limitations argument in a UIM case. See THIS POST for more background on the case and issue presented.

Pennsylvania Superior Court affirmed the lower court decision last Friday, April 19, 2013 in Hopkins v. Erie Insurance Company, 2013 Pa.Super. 90, 35 EDA 2012 (Pa.Super. 2013 Gantman, Allen, and Ott, JJ.)(Opinion by Allen, J.)(Concurrence by Gantman, J.).

The Superior Court held that a UIM cause of action accrues when the third party case settled and not when the contract was allegedly breached when Erie denied the claim. In so ruling ,the Superior Court followed the reasoning of the united States Court of Appeals of the Third Circuit in State Farm v. Rosenthal, 484 F.3d 251 (3d Cir. 2007).

Ultimately, the Superior Court held that "the four-year statute of limitations on underinsured motorist claims begins to run when the insured settles with, or secures a judgment against, the underinsured owner or operator."

The court also found that there was no error in the trial court declining to equitably toll the statute of limitations.

Anyone wishing to view the Opinion may click this link:

http://www.pacourts.us/assets/opinions/Superior/out/A08027_13.pdf

I send thanks to Attorney Joe Walsh of Walsh Pancio in Lansdale, PA, Attorney Scott Cooper of Schmidt Kramer in Harrisburg, PA, and Attorney Paul Oven of the Moosic law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Judge Nealon Addresses Applicable Statute of Limitations in Defamation/Tortious Interference Claim Based Upon Same Statements

2013-04-21T19:08:00.000-04:00

In his recent decision in the case of Pittsman v. Dr. David Perrone, No. 11-CV-1235 (C.P. Lacka. Co. April 11, 2013 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a defendant's motion for summary judgment based upon the expiration of the applicable statute of limitations in a combined defamation and tortious interference with business relations lawsuit.

The defense argued that defamation claims are governed by a one year statute of limitation under 42 Pa.C.S.A. Section 5523(1) and that, since the tortious interference with business relations was based upon the same allegedly defamatory statements, that separate claim should also be found to be time-barred under the facts presented.

Judge Nealon held that when a plaintiff's tortious interference with business relations claim is predicated upon the same defamatory statements and actions serving as the basis for the plaintiff's defamation claim, both causes of action are governed by the one year statute of limitations rather than the tortious interference claim being subject to a two year limitations period.

Anyone wishing to review Judge Nealon's decision in Pittsman may click this LINK.

Does Deletion of Facebook Profile Equal Spoliation of Evidence?

2013-04-17T21:14:00.000-04:00

According to a recent March 29, 2013 New Jersey Law Journal article by Mary Pat Gallagher entitled "Party's Deletion of Facebook Page Ruled Spoliation of Evidence," New Jersey Federal U.S. Magistrate Judge Steven Mannion sanctioned a personal injury plaintiff under the spoliation doctrine in the case of Gatto v. United Airlines, 10-CV-1090 (D.N.J. 2013) for deleting his Facebook page during a pending case.

According to the article, the plaintiff was a baggage handler at JFK Airport in New York City who was injured at an accident at work when struck by a set of mobile stairs. The article reported that the plaintiff deleted his Facebook account while the defendants were trying to access it during the course of discovery.

The article reported that the judge ruled that the plaintiff "had a duty to preserve his Facebook account at the time it was deactivated and deleted" and that the defense would be prejudiced by the destruction of this loss of the evidence.

The judge declined a request for attorney's fees and ruled that the appropriate sanction under the circumstances would be an adverse inference jury instruction, i.e., an instruction to the jury essentially that the jury may infer that, if this evidence was available, it would have been detrimental to the plaintiff's claims.

Here is a LINK to the Gatto decision online.

Commentary: The Gatto decision represents yet another example of courts applying the same old rules to new circumstances. While there is a lot of uncertainty with novel issues being raised in areas such as Facebook Discovery and even in the Post-Koken context, the courts confirm time and time again that the same Rules of Civil Procedure and Discovery will simply be applied to these new questions in a straightforward manner. Realizing this may assist litigants in predicting how such issues may play out if raised.

Judge Burke of Luzerne County Grants Summary Judgment in Premises Liability Case

2013-04-17T21:11:00.002-04:00

Hon. Thomas F. Burke, Jr.
Luzerne County President Judge

In his recent Opinion in the case of Purdy v. Downs Racing, L.P. d/b/a Mohegan Sun at Pocono Downs, No. 15369-C of 2010 (C.P. Luz. Co. Dec. 4, 2012 Burke, P.J.), President Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas granted summary judgment in favor of the Defendant in a premises liability case arising out of an alleged slip and fall.

In this matter, the Plaintiff alleged that she slipped and fell while located on the premises owned and maintained by the Mohegan Sun Casino. The Plaintiff allegedly slipped and fell on a puddle of clear liquid approximately 12 inches in size.

After discovery, the defense filed a Motion for Summary Judgment asserting that the Plaintiff had failed to meet her burden of proof on the issues presented.   More specifically, there was allegedly no evidence to establish how the puddle was created or how long it had existed prior to the Plaintiff’s fall. As such, the defense asserted that there was no evidence of any actual or constructive notice on the part of the Defendant of any allegedly dangerous condition.   The court agreed.

In his Opinion, Judge Burke confirmed that there was no evidence presented by the Plaintiff as to how long the puddle existed prior to the incident.

The court also stated that the Plaintiff’s allegation that the puddle consisted of residual cleaning solution that had leaked from a carpet cleaning machine stored in a housekeeping closet near where she fell was nothing more than speculation. The court noted that, while the liquid the Plaintiff allegedly fell on was clear, evidence was presented that the solution that the machine used was tinted.   There was also no evidence of any history of leaks with respect to the brand new machine.

Judge Burke held that, without any evidence that the equipment stored in the closet caused the puddle in question, the Plaintiff’s allegations were without support in the records and the Plaintiff was therefore unable to establish a breach of a legal duty.

Judge Burke noted that the record before the court “at best demonstrated the mere existence of a harmful condition in a Defendant’s premises and the mere happening of an accident due to such a condition, which does not evidence a breach of the duty of the Defendant’s duty of care or raises a presumption of negligence.”   Accordingly, summary judgment was entered in favor of the Defendant.

Anyone wishing to review Judge Burke's decision in the Purdy case may contact me at dancummins@comcast.net.

Judge Minora of Lackawanna County Provides Lessons on Proper Pleading of Punitive Damages in Auto Accident Case

2013-04-17T21:10:00.004-04:00

Hon. Carmen D. Minora
Lackawanna County

In his recent decision in the case of Calhoun v. Burns, No. 12-CV-2915 (C.P. Lacka. Co. Feb. 26, 2013 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed various Preliminary Objections filed by the Defendants to a Plaintiffs’ Complaint in an auto accident matter.

By way of background, this matter involves a motor vehicle accident in which all Plaintiffs were passengers in a bus that was involved in a motor vehicle accident.

After reviewing the Complaint and the challenges set forth in the Preliminary Objections, the Court ruled that all allegations as to recklessness, wanton, gross, and willful misconduct were to be stricken from the Plaintiff’s Complaint. The Court did note that if discovery later revealed facts supporting such allegations, the Plaintiff would have the right to seek to amend and reinsert such language after which the Defendants would again have the right to object if warranted.   In his Opinion in this Calhoun case, Judge Minora provides a thorough overview of the law applicable to this type of pleading.

The Court also sustained the Defendants’ Preliminary Objections as to generalized allegations of negligence where certain paragraphs in the Plaintiffs’ Complaint did not contain factual averments sufficiently specific enough to put the Defendants on notice of the particular allegations of negligence asserted against them.

The Court also struck punitive damages language from the Plaintiffs’ Complaint given that no facts were alleged to set forth the essential factual circumstances under which punitive damages would be permitted under Pennsylvania law.

Anyone desiring a copy of this case may contact me at dancummins@comcast.net.

U.S. Supreme Court Addresses Important Reimbursement of Liens Question

2013-04-17T10:29:00.003-04:00

The United States Supreme Court has issued an important ERISA lien decision in a case it acquired out of the Third Circuit Court of Appeals. The case is viewed as a defeat by those in the Plaintiff's bar in terms of liens owed in third party personal injury matters.

Here is a LINK to the SCOTUS Blog's write up on the case, including a link to the actual Opinion.

Walk-ins Welcome at Tort Talk Expo 2013 CLE Seminar

2013-04-17T10:23:00.000-04:00

The Tort Talk Expo 2013 CLE Seminar is set to take place tomorrow, Thursday, April 18, 2013 in the Seasons Ballroom (same place as last year) at the Mohegan Sun Casino beginning with Registration at 12:30 pm.

Walk-ins are welcome. Please bring check made out to "Tort Talk" (I do not have credit card capabilities).

Medical Expenses Resulting From Out-of-State Car Accident Ruled Not Recoverable Under PA Law

2013-04-14T14:19:00.001-04:00

An issue in personal injury civil litigation matters with minimal appellate guidance is the question of whether medical expenses incurred by a Pennsylvania resident injured in an out-of-state accident are recoverable in a Pennsylvania lawsuit.

That question was addressed by the U.S. Federal Court for the Eastern District of Pennsylvania in its recent memorandum opinion in the case of Reinert v. Nationwide Ins. Co., 2013 WL 1311097 (E.D. Pa. April 1, 2013 Stengel, J.) (mem.).

The Reinert case involved a Pennsylvania resident/insured who had been injured in an automobile accident that occurred in North Carolina accident.

The court ruled that under the appropriate conflicts of laws analysis, Pennsylvania substantive tort law would be applied. Under such law (75 Pa.C.S.A. Section 1720, 1722), the court ruled that evidence of the plaintiff's medicals and lost wages that were paid by plaintiff's first party auto insurer are not admissible.

The Reinert Opinion can be reviewed HERE. The Court's accompanying Order can be viewed HERE.

I send thanks to Attorney Bill Mabius of the Pennsylvania Association For Justice for bringing this case to my attention.

NEXT THURSDAY: TORT TALK EXPO 2013 CLE SEMINAR

2013-04-12T10:04:00.001-04:00

Please consider registering for fast-approaching April 18, 2013 TORT TALK EXPO 2013 CLE SEMINAR at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.

WALK-INS ARE WELCOME (Check or cash only).

CLICK HERE FOR REGISTRATION FORM

NOTE: ADDITION TO LIST OF PRESENTERS: ATTORNEY PAUL OVEN of the Moosic, PA office of Dougherty, Leventhal & Price has been added as the Moderator for the View from the Bench portion of the program with Judge Minora and Judge Vough.

Still Time to Register for Next Tuesday's 15th Annual Personal Injury Potpourri in Philadelphia

2013-04-11T08:52:00.003-04:00

Unfortunately, I will now not be able to attend and present at next Tuesday's excellent CLE program being put on by Harris Bock, Esq. and The Dispute Resolution Institute entitled:

The 15th Annual Personal Injury Potpourri

This CLE event, which is annually one of the best in the Commonwealth, is set to take place on April 16, 2013 at the Philadelphia Convention Center in Philadelphia, PA. With attendance already at over 400+ the event will also prove to be a great networking opportunity.

Here are the details along with this LINK to the Register Online page.

Pennsylvania Supreme Court Denies Appeal in Smith v. Rohrbaugh Case

2013-04-10T11:37:00.000-04:00

Attached is a copy of the Order issued earlier this week by the Pennsylvania Supreme Court in which that Court denied the Petition for Allowance of Appeal in the case Smith v. Rohrbaugh in which an en banc panel of the Pennsylvania Superior Court overruled Pusl v. Means, 982 A.2d 550 (Pa. Super. Sept 23, 2009), petition for allowance of appeal denied, 991 A.2d 313 (Pa. 2010).

In Pusl, a three judge panel of the Superior Court allowed the molding of a third party verdict downward to reflect the previous underinsured motorist settlement secured by a plaintiff for the same accident.

The en banc court in Smith v. Rohrbach held that the Pusl holding was incorrect and therefore reversed a trial court order which had followed Pusl and molded a third party verdict to zero.

As such, Pusl is now considered officially no longer good law and Smith is the precedent on that particular issue. Here is a link to the Supreme Court Order:

http://www.pacourts.us/assets/opinions/Supreme/out/845MAL2012.pdf

I send thanks to Attorney Scott Cooper of the Harrisburg law office of Schmidt Kramer and Attorney Paul Oven of the Moosic office of Dougherty, Leventhal & Price for publicizing this decision.

REGISTRATION NOW OPEN FOR PDI ANNUAL MEETING AT BEDFORD SPRINGS RESORT (July 18-19,2013)

2013-04-09T08:24:00.002-04:00

Click this LINK to go to the Registration Form for the PDI Annual Meeting set to take place at the Bedford Springs Resort in Bedford Springs, PA on July 18-19, 2013. The PDI has arranged for a full slate of CLE opportunities, great speakers, and resort activities, including but not limited to golf. Hope to see you there.