Tort Talk: Updates and Trends in Pennsylvania Civil Litigation Law

Third Circuit Addresses Appeal of Former Luzerne County Judge Mark A. Ciavarella, Jr.

2013-05-24T15:02:00.001-04:00

According to a May 24, 2013 article entitled "Third Circuit Keeps Ciavarella Behind Bars" in The Legal Intelligencer by Saranac Hale Spencer, former Luzerne County Court of Common Pleas Judge Mark A. Ciavarella Jr.’s appeal of his 28-year sentence for his involvement in the “kids-for-cash” scandal has been almost entirely rejected by the U.S. Court of Appeals for the Third Circuit.

REGISTER NOW -- LACKAWANNA PRO BONO'S GOLF TOURNAMENT IN TWO WEEKS

2013-05-24T08:56:00.003-04:00

Judge Minora of Lackawanna County Addresses Standard to Join Additional Defendant

2013-05-23T13:56:00.001-04:00

In his recent decision in the case of Montana v. Oakford Wood Home Owners Assn., No. 2012-CV-236 (C.P. Lacka. Co. 2013 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas granted an original Defendant's Motion for Leave to Join an Additional Defendant. The court's opinion provides a thorough overview of the current status of the law on this particular issue.

The court granted the Defendant's Motion, in part, because there was no potential risk for delay attributable to newly joined parties. The court also found that the Additional Defendant failed to provide any grounds for disallowing its late joinder under Rule 2253(b).

The Court employed the current version of Pa. R.C.P. 2253, which has changed the burden applicable to a defendant who seeks to join an additional defendant beyond the sixty day period prescribed.

The current version of Rule 2253, effective January 6, 2005, deletes the “upon cause shown” requirement, and subsection (b) now merely entitles the plaintiff to object to the belated joinder on the basis that the moving party has failed to demonstrate a “reasonable justification for its delay in commencing joinder proceedings.” Any other party, including the party who is to be joined as an additional defendant, may object only on the grounds of prejudice.

Applying these rules to the circumstances before the court in the Montana case led Judge Minora to grant the motion and allow for the joinder of an additional defendant.

Anyone wishing to review this decision of Judge Minora in the Montana case may click this LINK.

For a Tort Talk synopsis of another decision on this same issue handed down by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas back in 2011 in the case of Chelland v. Siegfried v. Solomon, click HERE.

Two More Decisions Addressing Whether Medicare Lien Issues Can Hold Up a Settlement

2013-05-23T13:55:00.005-04:00

I recently came across additional decisions in which a trial court addressed the issue of Medicare lien payments possibly holding up the resolution of a civil litigation settlement:

In his 2011 decision in the case of Mackrides v. Marshalls, Marmaxx Operating Corp., No. 11-Civil-6540 (E.D. Pa. April 23, 2013, Joyner, J.), Judge J. Curtis Joyner addressed Medicare issues with regards to a settlement of a slip and fall personal injury suit.

In this decision, the Court addressed a Plaintiff’s Motion to Enforce a Settlement.   The Court ruled that the motion would be denied.

In the Opinion, the Court noted that, although the Defendant’s failure to tender a proposed Release or settlement, was dilatory, unreasonable, and bordering on being deemed worthy of sanctions, the motion to enforce the settlement was denied where questions about the settlement terms remained unresolved, including questions pertaining to whether the settlement figure included funds to reimburse Medicare, whether Medicare made payments subject to reimbursement, and whether Medicare had waived any right to reimbursement.

Anyone wishing to review this Mackrides Opinion may click this LINK.

The older Northampton County Court of Common Pleas decision from back in 2011 in the case of Furman v. Wildermuth, No. C-0048-CV-2008-3556 (C.P. Northampton Co. July 12, 2011 Dally, J.), is another example of a trial court decision holding that a settlement of a personal injury may not be conditioned upon receipt of a final conditional payment letter from Medicare. That Court relied upon the Pennsylvania Superior Court decision in Zaleppa v. Siewel, 9 A.3d 632 (Pa. 2010).

The Furman decision can be viewed HERE.

Source: “Court Summaries,” Pennsylvania Bar News (May, 2013) by Timothy L. Clawges.

Click HERE to view other Tort Talk posts on Medicare issues, including with respect to settlements of personal injury matters.

District Magistrate Judge James Gibbons Wins Both Primaries for Lackawanna County Court of Common Pleas Judge

2013-05-22T08:46:00.002-04:00

District Magisterial Judge James Gibbons, 55, prevailed in both the Democratic and Republican primary elections for the open Lackawanna County Court of Common Pleas Judge position.

The spot on the bench opened up when Judge Chester Harhut took senior status and then moved to part-time status upon reaching the mandatory retirement age.

District Magistrate
James Gibbons

Judge Gibbons is a University of Scranton graduate and a Seton Hall Law School graduate.

Over the course of his career, he has worked in the U.S. Attorney's Office before going into practice. More recently, he gained greater prominence as a local district magistrate judge and, in private practice, as a Mediator/Arbitrator for the resolution of a wide variety of civil litigation matters. He also previously served on a statewide commission to study and offer recommendations on the Luzerne County juvenile justice system issues that existed a few years back.

District Magistrate Gibbons now moves ahead to the general election in November with no opposition for the position.

Novel Facebook Discovery Order Out of Lancaster County

2013-05-20T16:07:00.001-04:00

In a recent Lancaster County Court of Common Pleas case of Perrone v. Lancaster Regional Medical Center, No. CI-11-14933 (C.P. Lanc. Co. 2013 Cullen, J.), Judge James P. Cullen crafted a novel method of handling a Facebook Discovery dispute in a civil litigation personal injury case.

This case involved an alleged slip and fall in the defendant hospital allegedly resulting in significant injuries to the Plaintiff. According to a May 20, 2013 Legal Intelligencer article entitled "Judge Orders Parties to Hire Neutral Expert to Probe Facebook," by Ben Present, at the center of this discovery dispute was photographs of the Plaintiff playing in the snow along with a video of the Plaintiff sledding down a hill and tumbling off the sled at the bottom of the hill all the while laughing.

While the defense contended that these photos and the video post-dated the subject accident, the Plaintiff asserted that these items pre-dated the accident.

Judge Cullen granted limited discovery. In his two-page order, Judge Cullen ordered the parties to hire a "neutral forensic computer expert" to analyze the Plaintiff's private Facebook page during the 17-day window in which the Defendants claim the photographs and video arose.

In its Order, the court directed that the neutral expert was to identify all photographs of snow and references to snow on Plaintiff's Facebook page, along with any photos depicting the Plaintiff participating in physical activity during the specified time frame.

The parties were required by the Order to agree upon an expert within seven days of the court's Order. The court also mandated that the discovery be completed within 60 days.

Under the Order, the court directed that the expert was to retain the Plaintiff's Facebook username and password and then download the contents of the Plaintiff's Facebook to a hard drive on which data for the time period at issue was to be isolated.

The cost of this process, including the expert's fees, was to be covered by the Defendants, Lancaster Regional Medical Center and Hospital Housekeeping Systems, as the proponent of the discovery request.

As noted by Ben Present in his article in The Legal Intelligencer this "case appears to be the first matter in which a Pennsylvania judge has ordered the hiring of such an expert to review a party's Facebook information."

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

I send thanks to Ben Present of The Legal Intelligencer/Pennsylvania Law Weekly for providing me with a copy of this decision.

I have updated the Tort Talk Facebook Discovery Scorecard with this decision. You can always access the Facebook Discovery Scorecard by going to Tort Talk at www.TortTalk.com and scrolling down the right hand column and clicking on the date noted under "Facebook Discovery Scorecard." Once on that page, you can access the actual Opinions and Orders by clicking on the case names. Here's a quick LINK to the Tort Talk Facebook Discovery Scorecard.

REGISTRATION OPEN FOR LACKAWANNA PRO BONO'S JUNE 3, 2013 GOLF TOURNAMENT

2013-05-20T13:19:00.000-04:00

Another Decision out of Eastern District of Pennsylvania Applying the Restatement (Third) in a Products Case

2013-05-20T13:18:00.001-04:00

In the recent products liability case of Reardon v. Illinois Tool Works, Inc., PICS Case No. 13-0891 (C.P. Pa. April 10, 2013 Yohn, J.), Judge Yohn of the Eastern District Federal Court chose to apply the Restatement (Third) of Torts in deciding a Defendant’s Motion to Exclude Expert Testimony and For Summary Judgment. Ultimately, with the application of the Restatement (Third) to the facts of this case, the court denied the Defendant’s motion.

Anyone wishing to review this recent Pennsylvania federal district court decision utilizing the Restatement (Third) in a products case may click this LINK.

Source: Pennsylvania Law Weekly Digest of Recent Opinions (April 30, 3013).

A Philadelphia County Rule 1925 Opinion Upholding Erie Insurance Forum Selection Clause

2013-05-20T13:13:00.001-04:00

I previously reported on the Philadelphia County Court of Common Pleas post-Koken decision on venue in the case of Fish v. Erie Insurance Company, No. 003411, Jan. Term, 2013 (C.P. Phila. Co. 2013 New, J.), in which the court granted Erie Insurance Company’s Preliminary Objections based upon a forum selection clause and transferred venue of a UIM case from Philadelphia to Franklin County. The original ruling was by Order only.

That case has been appealed and Judge New has issued a Rule 1925 Opinion in support of his previous decision. Anyone wishing to review that decision may click this LINK.

I send thanks to Attorney John Statler of the Lemoyne, PA law firm of Johnson, Duffie, Stewart &
Widner for forwarding a copy of this Opinion to my attention.

Pennsylvania Superior Court Sides With Claimant in "Sign Down" UIM Case

2013-05-20T13:12:00.001-04:00

In its recent decision in the case of Weilacher v. State Farm, No. 124 WDA 2012 (Pa.Super. 2013)(Musmanno, Wecht, and Colville, J.J.)(Opinion by Musmanno, J.), the Pennsylvania Superior Court sided with a Plaintiff-insured on a question of whether the carrier should have obtained sign down forms for UM/UIM coverages after the insured had increased the liability limits under the policy.

In this case, the Weilachers were insured by a policy issued by “State Farm Fire & Casualty Company.” They had initially rejected both UM and UIM coverage pursuant to Section 1731. The liability limits at policy inception were $25,000/$50,000. At some point the Weileachers added UM coverage in an amount equal to the liability coverage.

A policy was then transferred to “State Farm Mutual Automobile Insurance Company” and a “new” policy issued with a different policy number. All coverages were the same. No additional underwriting forms were obtained.

The Weilachers then added UIM coverage in amount equal to the liability coverage. The policy stayed as is for a couple of years.

In 2009 the Weilecher’s increased the liability coverage only to $500,000/$500,000. This was done electronically. The UM/UIM coverage remained at $25,000/$50,000. No sign down forms were obtained; further, there was no other underwriting documentation obtained at that time.

Mrs. Weilacher was thereafter injured in an accident. The insureds claimed that their UIM coverage should be $1 million ($500,000 x 2 – the amount of the liability coverage, stacked). State Farm disagreed and tendered the $50,000 in “undisputed coverage.”

The insured then instituted a declaratory judgment action in Allegheny County. State Farm attempted to remove it to federal court, but the case was remanded pursuant to Sumy v. State Auto as the dispute involved only questions of state law.

The parties then entered into a stipulation of facts and filed cross-motions for summary judgment. The insured’s position was that State Farm was required to obtain a “sign down” when the liability limits were increased as there had previously been no sign down; and thus this case was distinguishable from Blood v. Old Guard. State Farm’s position was that Blood was controlling and that the change in liability coverage only did not trigger any obligation to obtain a new sign down form.

Judge DelaVecchio the Court of Common Pleas of Allegheny County granted State Farm’s motion and denied the insureds’ motion. An appeal was taken to Superior Court.

Judge Musmano authored the Superior Court's opinion reversing the trial court and holding that State Farm was obligated to provide $1 million in UIM coverage after finding that this matter was factually distinguishable from Blood.

The Superior Court apparently felt that, in Blood, there had been an election of lower UIM coverage at some point in the pendency of the policy. As such, the insureds in that case had demonstrated an affirmative intention to select UIM coverage less than the liability coverage. This was found not to be the case with the Weilechers.

The Superior Court also held that there was, in fact, a remedy for failure to comply with Section 1734. The trial court had agreed with State Farm that Salazar v. Allstate applied and that, even if there was a violation of Section 1734, there was no remedy.

The Superior Court held that Salazar was distinguishable and that the remedy was reformation of the policy to provide UIM coverage in an amount equal to the liability coverage. The court also held that it was of no moment that the Weilecher’s had paid lower premiums for reduced UIM coverage, citing Erie v. Larrimore.

Anyone wishing to review the Superior Court's opinion in Weilecher v. State Farm may click this LINK.

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.