Tort Talk

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Thu, 08 Jun 2023 14:20:00 +0200

Petition To Transfer Under Doctrine of Forum Non Conveniens Denied

Thu, 08 Jun 2023 14:00:00 +0200

In the case of Russo v. Allstate Indem. Corp., Feb. Term 2022, No. 02004 (C.P. Phila. Co. Feb. 15, 2023 Fletman, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s decision to deny the insurance company’s Petition to Transfer Venue under the Doctrine of Forum Non Conveniens.

The trial court initially ruled that the appeal should be quashed because the Order denying the Petition to Transfer Venue for Forum Non Conveniens is not an appealable Order under the Pennsylvania Rules of Appellate Procedure.

In this regard, the trial court noted that the Order did not dispose of all parties and all claims and did not change venue or transfer the matter to another court.

The trial court stated that, while Orders granting changes in venue are interlocutory Orders that are appealable as of right, Orders denying such petitions were not appealable.

The trial court went on to review the substantive issues presented as well. The trial court stated that it denied the Motion to Transfer Venue where the Defendant had failed to carry its burden of providing detailed information to establish that the Plaintiff’s chosen forum was oppressive or vexatious. In particular, the court noted that the Defendant did not provide any Affidavits from any witnesses who would be inconvenienced.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 16, 2023.).

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Tue, 06 Jun 2023 14:17:00 +0200

Community Use of Property Doctrine Utilized to Find that a Plaintiff Was a Licensee in a Premises Liability Case

Tue, 06 Jun 2023 14:00:00 +0200

In the case of Sallum v. The Pennsylvania Conf. Assoc. of Seventh-Day Adventists, No. 2021-CV-00234 (C.P. Lehigh Co. April 13, 2023 Caffrey, J.), the court addressed a Motion for Summary Judgment in a slip and fall case.

One of the central issues addressed by the court was whether or not the Plaintiff was a licensee where he slipped and fell in a parking lot and the Defendant asserted that the Plaintiff was not authorized to park in the parking lot.

According to the record before the court, the Plaintiff was a member of a mosque that had previously occupied the property and had parked his vehicle in the parking lot in the premises for over eight (8) to nine (9) years. After the Defendants in this case purchased the property, the Plaintiff allegedly spoke with two (2) individuals about whether or not he would be permitted to continue to use the parking lot. Those individuals, who allegedly identified themselves as employees of the new owner, allegedly told the Plaintiff that he could continue to park his vehicle in the parking lot.

The Plaintiff estimated that he then continued to park in that lot on hundreds of occasions without anyone telling him that he could not park there.

The Defendants asserted that they had notified the public at large that the parking lot was not available for public parking given that the Defendants had posted a sign indicating that unauthorized vehicles would be towed. It was also indicated by the Defendant that they would periodically use chains and a padlock to secure the entrance to the parking lot. However, the Defendants also noted that, when they noticed unauthorized vehicles in the lot, they did not take steps to have those vehicles removed.

A witness who lived in the neighborhood testified that everyone in the neighborhood parked in the parking lot without any issue.

On the day of the incident, snow and ice had accumulated in the parking lot. The Plaintiff was able to enter the parking lot because it was not secured by any change or a padlock. The record also revealed that the parking lot was full of vehicles but the Plaintiff was able to find the last open space. As the Plaintiff stepped out of his vehicle, he slipped and fell.

The court denied the Defendant's motion for summary judgment after finding material issues of fact as to whether or not the Plaintiff was a licensee based upon the alleged implied consent of the use of the land by the landowner.

In so ruling, the trial court recognized the notation of “community use of a property” under the Restatement (Second) of Torts §332 as a basis for denying the Motion for Summary Judgment. Plaintiff’s counsel indicated that, based upon his research, this may be the first Pennsylvania state court in which that rationale was utilized in this context.

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

I send thanks to Attorney Michael J. McKarski of the Bethlehem, PA law firm of Cohen, Feeley, Altemose & Rambo for bringing this case to my attention.

Source of image: Photo by Welhim Esaga on www.pexels.com.

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Mon, 05 Jun 2023 14:30:00 +0200

Chief Judge Brann of Middle District Federal Court of PA Provides a Definition for Gross Negligence

Fri, 02 Jun 2023 14:00:00 +0200

In the case of Johnson v. Keane Group Holdings, LLC, No. 4:20-CV-00491 (M.D. Pa. May 3, 2023 Brann, C.J.), the court reviewed the definition of “gross negligence.”

In this matter, the court denied summary judgment in a personal injury case involving a plaintiff who was injured in at a well site in the oil and gas industry.

The court noted that the Defendant’s indemnification agreement excluded liability for “gross negligence.”

Chief Judge Brann noted that the Pennsylvania Supreme Court has never precisely defined the term of “gross negligence.”

The Court found the question before it to involve the issue of whether "gross negligence" requires a finding of recklessness on the part of the defendant. In the end, Judge Brann ruled that "gross negligence" does not required a finding of recklessness.

Judge Brann noted that the difficulty in defining gross negligence arises from the fact that the terms origin is in statutory law rather than common law, which does not recognize degrees of negligence.

Chief Judge Brann stated that gross negligence does not require the intentional indifference or conscious disregard of risks that defines recklessness.

Accordingly, gross negligence was found to require evidence that an actor’s conduct was an extreme departure from the relevant standard of care. However, evidence that the actor acted recklessly is not required for a finding of gross negligence.

The court denied summary judgment in this case given the issues of fact presented on and found that summary judgment was not appropriate on the issue of whether or not the Defendant was grossly negligent under the circumstances presented.

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 Reed Smith law firm in Philadelphia for bringing this case to my attention.

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Thu, 01 Jun 2023 14:00:00 +0200

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Court Rules That Forum Selection Clause in UIM Policy Allowed Plaintiff to File in Federal Court That Covered Area Where Plaintiff Resided

Wed, 31 May 2023 14:00:00 +0200

In the case of Warren v. Donegal Mut. Ins. Co., No. 1:22-CV-01309 (M.D. Pa. May 4, 2023 Wilson, J.), the court denied the UIM carrier’s Motion to Dismiss a UIM claim and granted the Plaintiff leave to effectuate proper service.

In this UIM matter, the Defendants asserted that the Complaint should be dismissed for insufficient service of process, improper venue, and failure to state a claim.

As noted, the court granted the Plaintiff leave to effectuate proper service.

In part, the UIM carrier asserted that the insurance contract’s forum selection clause rendered the United States District Court for the Middle District of Pennsylvania an improper venue.

In addressing this motion, the court applied the venue rules found under F.R.C.P. 12.

In reviewing this Motion to Dismiss, the court noted that the forum selection clause in the policies at issue required that the Plaintiff to file the action in a “court of competent jurisdiction in the county and state” where the Plaintiff resided at the time of the accident.

The carriers asserted that, because the Plaintiffs resided in Cumberland County, Pennsylvania at the time of the accident, the forum selection clause only allowed the Plaintiff to bring his claim into Cumberland County Court of Common Pleas.

The court disagreed and accepted the Plaintiff’s claim that the forum selection clause should be interpreted broadly to also cover the Federal Middle District Court as a court of competent jurisdiction that covered the area of Cumberland County.

The court found that the plain language of the forum selection clause allowed the Plaintiff to file the action in the Federal District Court if so desired. As such, the Motion to Dismiss was denied in this regard.

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

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

Trial Court Denies Motion to Stay Underlying Proceedings Related to Companion Coverage Case

Mon, 29 May 2023 14:00:00 +0200

In the case of Pettinato Realty Co., Inc. v. Travelers Prop. Cas. Co. of Am., No. 22-CV-932 (C.P. Lacka. Co. March 16, 2023 Nealon, J.), the court denied a carrier’s Motion to Stay the civil proceedings in an underlying breach of contract and negligence claim arising out of an insurance coverage dispute.

While the Defendant carrier argued that the underlying matter was not yet “ripe” for litigation given that no coverage determination had been made to date, the trial court determined that it was in the court’s best interests to allow the litigants to proceed with discovery and pre-trial proceedings so that the case would not later be delayed once coverage determination was completed.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 11, 2023).

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Fri, 26 May 2023 14:00:00 +0200

Plaintiff Allowed to Proceed With Claims in Premises Liability Case That Decedent Passed Away From Exposure to Covid-19 Virus During Post-Accident Treatment

Fri, 26 May 2023 13:30:00 +0200

In the case of Corter v. Wal-Mart, No. CV-22-00100 (C.P. Lyc. Co. April 11, 2023 Linhardt, J.), the court sustained in part and denied in part various Preliminary Objections filed by Defendant Wal-Mart in a case involving allegations relative to a slip and fall matter that allegedly resulted in injuries that allegedly led to the Plaintiff’s death.

More specifically, the Plaintiff alleged that the decedent sustained multiple fractures during the course of his slip and fall injuries, as well as traumatic brain injuries, all of which required hospitalization. It was further alleged that the decedent was exposed to the COVID-19 virus during his hospitalization and in-patient treatment which allegedly caused and/or contributed to his death.

In one of its Preliminary Objections, Wal-Mart sought to strike, as scandalous and impertinent, allegations in the Complaint related to the Plaintiff’s alleged exposure to the COVID-19 virus during his post-incident treatment.

The court noted that the validity of these types of allegations turned on the issue of whether or not the Plaintiff had stated illegally cognizable claim of negligence against Wal-Mart. The court noted that, if the decedent’s death could not be attributed to Wal-Mart’s negligence as a matter of law, then the allegations that the decedent died, in part, due to exposure of the COVID-19 virus would be inappropriate and immaterial to the claims presented.

Judge Linhardt noted that, in this early stage of the litigation, the court could not conclude, as a matter of law, that Wal-Mart’s alleged negligence was not the legal cause of the decedent’s eventual death from COVID. As such, the court found that, at least at this stage of the litigation, allegations regarding the circumstances of the decedent’s death were neither scandalous nor impertinent.

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

I send thanks to Attorney Gary L. Weber, who is the Editor of the Lycoming Reporter and a member of the Williamsport, Pennsylvania law firm of Mitchell Gallagher, for bringing this case to my attention.

New Trial Granted After Jury Awarded Zero Damages

Thu, 25 May 2023 14:23:00 +0200

In the case of Giko v. Calgiano, No. 1262 EDA 2022 (Pa. Super. March 29, 2023 Lazarus, J., Nichols, J., and McCaffery, J.) (Op. by Lazarus, J.) [non-precedential], the Pennsylvania Superior Court concluded that a jury’s award of $0 damages was against the weight of the evidence and, as such, the appellate court remanded the case for a new trial limited to damages.

According to the Opinion, this case arose out of a rear-end motor vehicle accident.

At trial, the jury found that the Plaintiff had sustained injuries in the accident and that the Defendant was 75% liable. However, the jury awarded $0 in damages.

According to the Opinion, the Plaintiff declined treatment at the scene and proceeded to work. Later that day, however, the Plaintiff’s supervisor suggested that the Plaintiff leave work early and get treatment for complaints of neck and back pain.

The Plaintiff reported to an Urgent Care Center and was prescribed medication and advised to use ice and heat. Shortly thereafter, the Plaintiff began a course of physical therapy.

The Plaintiff also eventually underwent bilateral sacroiliac joint injections. She additionally had EMG and MRI testing for complaints of neck and back pain. The Plaintiff’s overall medical bills were noted to be in excess of $26,000.00.

Based upon the evidence in the record, the Superior Courtfound that the jury’s finding that the Plaintiff’s harm was not compensable was against the weight of the evidence. The court held that the award of $0 damages bore no reasonable relationship to the alleged losses suffered.

While the court recognized that not every injury results in compensable pain and that a jury may decline an award of compensation for pain and suffering if the jury determines that the discomfort suffered by the Plaintiff was the sort of “transient rub of life” for which compensation is not warranted, here, the court found that the record confirmed that the Plaintiff had indeed sustained pain and suffering and that the general proposition that victims of accidents must be compensated for all that they suffer from the tort of another warranted the granting of a new trial.

Accordingly, the Superior Court found that the jury’s award of $0 damages was against the weight of the evidence. As such, the court reversed the trial court’s decision and remanded the case for a new trial limited to damages only.

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

I send thanks to Attorney Dale G. Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP, for bringing this case to my attention.

Information From GPS System Found Not to be Hearsay (Criminal Court Decision)

Wed, 24 May 2023 14:30:00 +0200

In the case of Commonwealth v. Wallace, No. 93 MAP 2021 (Pa. Feb. 22, 2023)(Op. by Todd, C.J.)(Wecht, J. Concurring), the Pennsylvania Supreme Court held that a global positioning system (GPS data) is not inadmissible hearsay under Pa. R.E. 803 (setting forth hearsay exceptions).

Such information was found not to be hearsay because that information does not constitute a statement made by a declarant as outlined in Pa. R.E. 801 and/or is not an assertion (or the nonverbal conduct) by a person.

As this decision may prove useful in a civil litigation matter, it is highlighted here on Tort Talk.

Here is a LINK to the Court's Majority Opinion. The Concurring Opinion by Justice Wecht can be viewed HERE,

Source of image: Photo by Tamas Tuzes-Katai on www.unsplash.com.

Trial Court Follows Mione and Upholds Household Exclusion

Tue, 23 May 2023 13:40:46 +0200

In the case of Erie Insurance Exchange v. Burnsworth, No. 325-CV-2021 (C.P. Somerset Co. March 29, 2023 Geary, P.J.), the court upheld a household exclusion under an Erie Insurance policy and confirmed that the carrier did not have any obligation to provide underinsured motorist benefits to the Plaintiffs.

The court additionally found that the Plaintiff had no obligation to provide UIM benefits to the Plaintiff based upon the Plaintiff’s rejection of UIM coverage for the motorcycle involved in the subject accident.

At the time of the accident, the Plaintiffs were on a motorcycle when they were rear-ended.

That motorcycle was insured by Progressive Insurance Company. Under that policy, the Plaintiff had rejected UM and UIM coverage for the motorcycle.

The Plaintiff also had a separate automobile insurance policy with Erie Insurance that covered their automobiles. That policy had a household vehicle exclusion. The motorcycle was not insured under the Erie Insurance policy.

After settling the personal injury claim against the tortfeasor arising out of the accident during which the Plaintiffs were on their motorcycle, the Plaintiffs filed a claim for UIM benefits under their Erie Insurance policy that covered the other vehicles in their household.

Erie rejected the claim and filed this declaratory judgment action requesting that the court find that the Plaintiffs were not entitled to UIM benefits for the motorcycle accident given that the motorcycle was not covered under the Erie Insurance policy and given that the Plaintiff had rejected UIM coverage under the separate policy that covered the motorcycle.

The decision in this case was the result of a Motion for Judgment on the Pleadings filed by the carrier.

Judge Geary of the Somerset County Court of Common Pleas noted that, although the Plaintiffs were relying upon the case of Gallagher v. Geico, the Pennsylvania Supreme Court had recently resolved the same types of issues as presented in this matter in its decision in the case of Erie Insurance v. Mione, No. 89 MAP 2021 (Pa. Feb. 15, 2023).

Essentially, this trial court judge agreed with the Pennsylvania Supreme Court in Mione that the Plaintiffs are not entitled to UIM coverage in cases where UIM coverage cannot be stacked given that UIM coverage was rejected with respect to the vehicle involved in the accident. The court found that, in this regard, the requirements under 75 Pa. C.S.A. §1738 regarding securing a waiver of stacking are “simply not implicated.” See Op. at 2. quoting Mione.

Judge Geary emphasized in this Erie v. Burnsworth Opinion that, as “made clear” by Pennsylvania Supreme Court in the case of Mione, “when an insured seeks UM/UIM benefits under a household policy but does not have UM/UIM coverage on the vehicle that he or she was occupying at the time of the collision…the household vehicle exclusion serves as an unambiguous preclusion of all UM/UIM coverage (even unstacked coverage) for damages sustained while operating an unlisted household vehicle."

In short, the court ruled that UIM coverage under the Erie policy could not be stacked onto the motorcycle because the motorcycle was not a covered vehicle under the Erie Insurance policy and given that the Plaintiffs had waived UM/UIM coverage for the motorcycle under the Progressive policy.

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

I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch P.C. for bringing this case to my attention.

Source of image: Photo by MateuszDach on www.pexels.com.

Alex Marcinko Joins Cummins Law as an Associate Attorney

Mon, 22 May 2023 14:30:00 +0200

CUMMINS LAW

IS PLEASED TO WELCOME

J. ALEX MARCINKO

Cummins law is pleased to announce that J. Alexander Marcinko, Esq. (Alex Marcinko) has joined Cummins Law as an associate attorney.

Attorney Marcinko is a graduate of Penn State University and the Widener School of Law. Following law school, Alex completed a clerkship with the Honorable Mary Hannah Leavitt of the Commonwealth Court of Pennsylvania.

Alex Marcinko, Esq.

Attorney Marcinko previously worked with the District Attorney's Offices in Philadelphia and Lancaster as well as with a civil litigation firm in northeastern Pennsylvania.

At Cummins Law, Attorney Marcinko will handle all aspects of civil litigation matters, with an emphasis in automobile and trucking accident litigation and premises liability litigation.

To contact Attorney Marcinko, please call 570-319-5899 or email AlexMarcinko@CumminsLaw.net.

Federal Court Addresses Collateral Estoppel Issues In UIM Case Where Plaintiff Secured Less Than Liability Limits At Third Party Arbitration

Mon, 22 May 2023 14:00:00 +0200

In the case of Holland v. Progressive Spec. Ins. Co., No. 23-0910-KSM (E.D. Pa. April 10, 2023 Marston, J.), the court granted in part and denied in part a Defendant carrier’s Motion to Dismiss portions of a Plaintiff’s bad faith claim in a UIM case.

The court denied the Motion to Dismiss the Plaintiff’s breach of contract action.

According to the Opinion, the carrier moved to dismiss the Complaint which was based upon the carrier’s denial of the Plaintiff’s UIM claim.

In this matter, the Plaintiff had previously arbitrated his claims against the tortfeasor and secured an Arbitration Award.

The Plaintiff then signed a Release in which the Plantiff released all of his claims against the tortfeasor, the tortfeasor’s insurance company and “any other person, firm, or corporation” chargeable with responsibility for the accident.

The Plaintiff had included a handwritten clause on the Release reserving his right to bring a UM/UIM claim against his own insurance carrier.

The Plaintiff had additionally sent a request to his own insurance carrier for consent to settle before he signs the Release.

The UIM carrier also noted the arbitrator had found that the Plaintiff’s damages did not exceed the tortfeasor credit and, as such, the UIM carrier denied the claim presented. More specifically, in the third party arbitration the Plaintiff had been awarded $58,029.85 in a case where the tortfeasor had $100,000 in liability coverage.

The Plaintiff sued the UIM carrier in state court for breach of contract and bad faith. The carrier removed the action to the federal court.

In its Motion to Dismiss the carrier primarily argued that the Plaintiff’s breach of contract claim was barred by collateral estoppel. The carrier also noted that the Plaintiff failed to allege sufficient facts to support a bad faith claim.

Relative to the bad faith claim, the court found that the Plaintiff’s Complaint consisted of conclusory statements unsupported by facts. There were no details provided describing what was allegedly unfair about the UIM carrier’s settlement negotiations and the Complaint also failed to explain what alleged misrepresentation the UIM carrier may have made.

In its decision, the court noted that, relative to the bad faith claim, the UIM carrier’s argument that the other driver was not driving an underinsured motor vehicle was reasonable and was supported by the case law and the facts and circumstances of this case.

The court also found that the Plaintiff did not allege any fact to suggest that the UIM carrier denied the Plaintiff’s claim with “ill will” or under a “dishonest purpose.” It was also noted that the Plaintiff did not assert that the UIM carrier’s decision to deny coverage was made with undue delay.

Relative to the breach of contract action and the argument that the same was barred by the collateral estoppel doctrine, the federal court found that it needed additional information as to the scope of the Arbitration in order to determine if the carrier had satisfied its burden of establishing that the doctrine of collateral estoppel applied. In this regard, it was indicated that neither party to the action had submitted to the court a copy of the Arbitration Agreement, the Arbitration record, or the Arbitrator’s findings. As such, the Motion to Dismiss the breach of contract action was denied.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 27, 2023).

Court Refuses To Enforce Settlement Where Plaintiff Asserts She Did Not Agree to the Settlement

Thu, 18 May 2023 14:00:00 +0200

In the case of Vangjelli v. Banks, No. 19-CV-1635 (E.D. Pa. April 6, 2023 Bratter, J.), the court denied a Defendant’s Motion to Enforce a Settlement after finding that the Plaintiff asserted that she never agreed to the settlement and that the Plaintiff’s attorney had no express authority from the client to accept the proposed settlement.

The case arose out of issues related to the Plaintiff’s attempts to enter a Social Security Card Center and allegedly encountering trouble with a security guard. This led to the Plaintiff, at one point, being tackled by the security guard. The Plaintiff asserted various claims for personal injury as a result.

After the state court case was removed to federal court, the parties were referred to a magistrate judge for a Settlement Conference.

The magistrate judge was informed that the parties had settled the case. As such, the court dismissed the case with prejudice.

The Plaintiff then sent a letter to the court two (2) days later stating that she did not agree to settle and that her attorneys knew that. The Defendants filed the Motion to Enforce the Settlement at issue.

The court found a conflict of interests between the Plaintiff and her attorneys and granted the attorneys’ Motion to Withdraw. The Plaintiff did not secure new counsel.

The court construed the Plaintiff’s attorney’s letter to the court as a pro se Motion to Set Aside the Order of Dismissal.

Applying Pennsylvania law, the federal courts noted that counsel needed the express authority of the client to settle the case. The court stated that, express authority would not be found where, as here, the client had repudiated the attorney’s authority in a timely manner after the settlement.

Given that the evidence in this case showed a lack of clarity regarding the attorney’s express authority to settle the claims, the court denied the Defendant's Motion to Enforce the Settlement.

More specifically, the court saw and heard notable material gaps and inconsistencies in the testimony of the Plaintiff and her attorneys on the issues presented. The court also noted that none of the witnesses presented any documentary evidence.

It was indicated that there were two Settlement Conferences that were conducted via telephone. The record indicated that the Plaintiff was in the attorney’s office listening to the first conference but was not present for the second conference. While she was not present at the second conference, she had agreed to be available by telephone to discuss any settlement offers and to possibly authorize her attorneys to accept any offers.

The Plaintiff’s attorney testified that he conveyed the settlement offer to the Plaintiff, asked her if she wanted to settle, and that the Plaintiff had responded in the affirmative.

The attorney also testified that, when he called the Plaintiff back to tell her that the case had settled, the Plaintiff stated that she had changed her mind and no longer wanted to accept the offer.

During her testimony, the Plaintiff stated that she did not remember ever saying she wanted to accept the offer and that she had, instead, told her attorney to “go higher.”

Based upon the record before it, the court found that it could not conclude that the attorney for the Plaintiff ever had any expressed authority to accept the settlement agreement. Given that the contradictory testimonial evidence showed that there was not a meeting of the minds between the Plaintiff and her attorney as to what was said, let alone what was meant, the court denied the Petition to Enforce the Settlement.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 27, 2023).

Source of image: Photo by Cottonbro Studio on www.pexels.com.

Pennsylvania Supreme Court Approves Personal Injury Claim by Plaintiff Against a Contractor Based Upon Work Completed Years Before

Wed, 17 May 2023 17:59:26 +0200

In the case of Brown v. City of Oil City, No. 6 WAP 2022 (Pa. May 16, 2023) (Op. by Todd C.J.)(Mundy, J., Dissenting), the Pennsylvania Supreme Court addressed the issue of whether §385 of the Restatement (Second) of Torts imposes liability upon a contractor to a third party whenever the contractor, during the course of his or her work for a possessor of land, creates a dangerous condition on the land that injures the third party, even though, at the time of the injury, the contractor was no longer in possession of the land, and the possessor of the land was aware of the dangerous condition.

The court noted that §385 of the Restatement (Second) of Torts is entitled “Persons Creating Artificial Conditions on Land on Behalf of Possessor, Physical Harm Caused After Work Has Been Accepted.”

Section 385 addresses the liability of a party erecting or repairing a structure on behalf of a possessor of land after that work has been completed and accepted.

This case arose out of an incident during which a Plaintiff tripped and fell on deteriorated sections of concrete steps outside of a library, which steps had been replaced by a contractor years before. The Plaintiff sued the owner of the library as well as the contractors who performed work on the exterior stairs to the library. According to this decision, the Plaintiff stated cognizable causes of action.

After reviewing the law, the Pennsylvania Supreme Court concluded, as did the Commonwealth Court below, that a contractor may indeed be subjected to liability under §385 in such circumstances. As such, the judgment of the Commonwealth Court was affirmed.

Anyone wishing to review a copy of this decision may click this LINK. Justice Mundy's Dissenting Opinion can be viewed HERE.

I send thanks to Attorney Kenneth T. Newman of the Pittsburgh, PA office of Thomas, Thomas & Hafer, LLP for bringing this case to my attention.

Trial Court Addresses John Doe Allegations and Informed Consent Claims in Medical Malpractice Case

Tue, 16 May 2023 14:00:00 +0200

In the case of Meisse v. Cohan, No. 1821-CV-2022 (C.P. Monroe. Co. March 24, 2023 Higgins, J.), the court sustained in part and overruled in part Preliminary Objections in a medical malpractice action.

According to the Opinion, Plaintiff’s decedent was treated by the Defendant physician for symptoms related to Crohn’s Disease.

The Defendant physician allegedly prescribed the decedent medicine but allegedly never sought to perform tests to determine if the medication was appropriate for the decedent. The decedent died thereafter, allegedly from liver failure.

The decedent’s estate filed this lawsuit and the Defendant filed Preliminary Objections.

In part, the Defendant objected to the “Doe” designations in the Plaintiff’s Complaint on the grounds that the Plaintiff failed to maintain the action against Doe Defendants in compliance with Pa. R.C.P. 2005(b) because that rule mandates that a factual description of each unknown Defendant be provided, which was not done in this case.

The Plaintiff asserted that the identities of the Doe Defendants could be revealed through discovery.

Although the court noted that the Plaintiff lacked factual descriptions about the Doe Defendants because that information was within the Defendant’s control, the court nevertheless held that that Rule 2005 prohibits the use of a class of Defendants as a placeholder or a catch-all category. As such, these Preliminary Objections of the Defendants were sustained.

The court additionally sustained Preliminary Objections asserted by the Defendant under which it was argued that the Plaintiff failed to adequately plead claims against associated cooperations. The court found that, although the Defendant was on reasonable notice of the claims against them in the periods of treatment, the Plaintiff had still failed to identify the corporations and had, instead, similarly used a catch-all category. As such, these objections were sustained as well.

The court sustained the Defendant’s Preliminary Objection asserted that corporate negligent claims should be pled in a separate count under Pa. R.C.P. 1020(a).

Judge Higgins did overrule the Defendant’s Preliminary Objections to the Plaintiff’s inclusion of a claim of informed consent in the Complaint.

The court noted that Pennsylvania law typically holds that doctors must obtain informed consent prior to performing surgical or operative procedures. However, to maintain a cause of action under 40 P.S §1303.504, Plaintiff must allege a failure arising from one of the following: surgery, anesthesia, the administration of radiation or chemotherapy, the administration of a blood transfusion, the insertion of a surgical device, or the administration of an experimental medication device.

Given that the Plaintiff had referred to experimental treatment in her Brief in Opposition to the Preliminary Objections, the court overruled this objection of the Defendant.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 25, 2023).

Plaintiff Made to File Separate Counts Against Separate Defendants In Med Mal Case

Tue, 16 May 2023 09:00:00 +0200

In the case of Boyd v. Shenango Presb. SeniorCare, No. 30007 of 2021, C.A. (C.P. Lawr. Co. March 22, 2023 Motto, J.), the court addressed several Preliminary Objections filed by a Defendant to a Plaintiff’s Complaint which alleged negligence arising out of the Plaintiff’s decedent’s treatment at a senior care facility.

The court sustained the Defendant’s Preliminary Objection asserting that the Complaint lacked specificity due to the fact that the Plaintiff had pled a number of different causes of action in the same Complaint in violation of Pa. R.C.P. 1020(a). The court noted that, under this Rule of Civil Procedure, each cause of action must be stated in a separate count containing a demand for relief.

In this case, the Plaintiffs’ Complaint alleged several causes of action against several Defendants in one (1) count, including alleged claims for negligence, negligence per se, and vicarious liability in a single count.

The court found that such a pleading rendered it impracticable for Defendants to understand which claims were being asserted against which Defendants. Consequently, the Defendants would not be able to properly respond to the Complaint and formulate their defenses.

As such, the Defendants’ Preliminary Objection for lack of specificity were sustained.

Several other Preliminary Objections asserted by the defense were overruled.

The court granted the Plaintiff leave to file an Amended Complaint.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 25, 2023).