In the case of Smith v. CMS West, Inc., No. 1002-EDA-2022 (Pa. Super. Oct. 30, 2023 Bowes, J., Stabile, J., and Pelligrini, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court affirmed an Order entered by the Court of Common Pleas of Philadelphia County transferring a construction accident case from Philadelphia County to Butler County under the doctrine of forum non conveniens.

The court ruled that the Plaintiff’s slip and fall claim failed because no basis beyond speculation established that the Defendant had any notice of the allegedly dangerous condition on its property.

The court found that there was no actual evidence established in terms of a way for the alleged spill to have been caused by any of the Defendant’s employees.

The court additionally noted that the Defendant had reasonable preventative measures in place such that there was no basis to infer actual notice from the facts of this particular alleged existence of a spill.

The court stated that, without any evidence as to how the spill happened, how long it had been present, or any evidence that would show that it had been present for a long period of time, the Plaintiff was unable to establish constructive notice on the part of the defendant store.

As such, summary judgment was granted.

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


I thank Attorney James A. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

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The court also noted that the fact that the defense radiologist expert did not dispute the Plaintiff’s “subjective” reports of pain resulting from the collision did not constitute an agreement by the defense expert that the collision caused injury.

The court otherwise found that the jury’s decision that the Defendant’s negligence did not cause harm to the Plaintiff could properly have been based upon the evidence that the collision occurred at a relatively low speed, that the Plaintiff had pre-existing similar problems and degenerative conditions and/or that the Plaintiff did not complain of neck pain until four (4) years after the collision.

Overall, the court found that the Plaintiff did not show that the trial court abused its discretion in finding that the jury’s verdict did not shock the judicial conscience given that the post-trial claim was found to lack merit, the trial court’s denial of the same was affirmed on appeal.

This decision is also notable for the court’s ruling that a party is not entitled to adverse inference related to the failure of an opposing party to call a witness at trial where that witness was equally available to each party to be called as a witness.

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


I send thanks to Attorney Paul Gambone of the King of Prussia office of the Forry Ullman law firm for bringing this decision to my attention.

Anyone wishing to review this decision may click this LINK.  The Dissenting Opinion by Justice Brobson can be viewed HERE.

 It was noted in the Opinion that, pursuant to 23 Pa. C.S.A. §1103, “no common-law marriage contracted after January 1, 2005, shall be valid.”  Based on this statue, the court found that the couple in this matter was not married under the doctrine of common-law marriage.

Judge Gary E. Norton of the Court of Common Pleas for Columbia and Montour County issued an Opinion in which he concluded that the boyfriend’s live-in girlfriend was not “closely related” as that term is used in the negligent infliction of emotional distress context.

On this basis, the court found that the Defendant, Justin Toth, was negligent per se based upon his conviction for violating 3 P.S. §459-305(a).

The court ruled that, with respect to this particular Defendant, the jury would only be deciding the issue of damages recoverable by the Plaintiff for her injuries from the incident.

In so ruling, the court addressed whether the findings in companion criminal case collaterally estopped the Defendant dog owner from challenging liability in the civil case.

According to the Opinion, the dog’s owner was found guilty of violating §305(a) of the Dog Law, 3 P.S. §459-305(a), by a magisterial district judge. The dog owner appealed that summary offense conviction to the Court of Common Pleas for a de novo trial.

Based upon the specific defenses raised by the owner during that trial, another judge of the court of Common Pleas of Lackawanna County held that the owner’s unconfined and unsecured dog entered the Plaintiff’s home and knocked her down the steps, and that the dog owner was, therefore, found to be guilty beyond a reasonable doubt of violating the above-referenced section of the dog law.

In this companion civil action against the dog’s owner, the Plaintiff filed a Motion for Partial Summary Judgment seeking a determination that the dog’s owner was collaterally estopped from presenting evidence contrary to the Common Pleas judge’s findings. The Plaintiff also sought a ruling that the dog owner should be considered to be negligent per se based upon his conviction for a violation of the dog law.

Judge Terrence R. Nealon Lackawanna County

According to Judge Nealon’s review of Pennsylvania law, a summary offense conviction collaterally estops a defendant from denying his adjudicated acts in a later civil suit if the defendant appeals his conviction by a magisterial district judge, participates in a de novo trial hearing before a Common Pleas judge, is afforded a full and fair opportunity to litigate his issues, and is found guilty beyond a reasonable doubt.

As such, based upon these circumstances in this case, the court found that the dog owner in this case was estopped from denying that his unrestrained dog entered the Plaintiff’s home and knocked down a staircase or that he was guilty of violating the dog law. 

The court additionally noted that, since an established violation of this portion of the Dog Law constitutes negligence per se, the only issues to be addressed by a jury in the personal injury trial with regards to that dog owner were the damages be recovered by the Plaintiff for her alleged injuries. 

Accordingly, the Plaintiff’s Motion for Partial Summary Judgment was granted to the extent that the dog’s owner was found to be estopped from presenting any evidence that his unrestricted and unleashed dog entered the Plaintiff’s premises and knocked her down a flight of stairs.

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

More specifically, the Defendants have filed three (3) separate sets of Preliminary Objections. It was only after the third set of Preliminary Objections was overruled that the Defendants finally asserted the issue of Arbitration in their Answer to the Complaint and in a Petition to Compel Arbitration.

Also, the Defendants had not raised the issue of Arbitration in the previously filed Preliminary Objections.

As such, the court ruled that, although there was a valid Arbitration agreement between the parties that may have required certain claims in this litigation to be submitted to Arbitration, the Defendants’ participation in this litigation was held to confirm an acceptance of the judicial process and a waiver of the right to arbitrate.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 23, 2023).

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In the case of Cornfield v. Mitchell, No. 10596-CV-2021 (C.P. Erie Co. Oct. 2, 2023 Mead, J.), the trial court addressed the issue of what status a home delivery person, such as a UPS delivery person, had in the eyes of the law in a fall-down case on a homeowner’s property, i.e., whether that Plaintiff delivery person would be a business invitee, or a licensee.

In so ruling, the court cited to the case of Figueroa v. Meitzner, 2022 Pa. Super. Unpub. LEXIS 1832 *8-9 (Pa. Super. 2020) citing Sharp v. Luksa, 269 A.2d 659 (Pa. 1970), noting that “the Supreme Court of Pennsylvania adopted §342 of the THE RESTATEMENT (SECOND) OF TORTS to express the duty that landowners in this Commonwealth owed to business licensee, such as packaged deliverers….”  Under that analysis, delivery persons are deemed to be licensees in premises liability cases where the delivery driver is injured on a homeowner's property.

Anyone wishing to review a copy of this detailed Order, which does to come with any Opinion, may click this LINK.

I send thanks to Attorney William C. Wagner of the Erie, PA office of Marnen, Mioduszewski, Bordonaro, Wagner & Sinnott, LLC for bringing this case to my attention.

Source of image:  Photo by Aaron Doucett on www.Pexels.com.

Source of image: Photo by Lazaro Rodriguez, Jr. on www.pexels.com.

Source of Image:  Photo by Anastasiya Badun on www.unsplash.com.

The court pointed to the continued use of advanced communication technologies in litigation matters, such as Zoom, has served to substantially lessen any burdens or hardships that may be associated with participating in any given litigation at any location.

After reviewing the latest appellate law on the issues presented, Judge Nealon noted that the affidavits in support of the Petition filed by the Defendant did not support the granting of the motion.

Judge Terrrence R. Nealon Lackawanna County

Judge Nealon noted that, although the Defendant driver and his employer produced affidavits attempting to show undue burden and hardship with the litigation remaining in the chosen forum, the Defendants failed to furnish a general statement of the proffered testimony of a key witness to the defense. The court found that the Defendants had not established that the Defendants chosen forum was oppressive or vexatious.

As such, the Defendant’s Motion to Transfer the case to Montgomery County based upon the doctrine of forum non conveniens was denied.

Proud to note that Judge Nealon cited and quoted from an article of mine in this regard on this topic. See Op. at p. 13.

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

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This case arose out of a motor vehicle accident during which a Defendant bus driver was driving 59 passengers on a bus from New York City to Columbus, Ohio and was involved in an accident in Westmoreland County, Pennsylvania. Yet, the lawsuit was filed in Philadelphia County.

At the trial court level, the Defendants filed a Motion to Transfer Venue to Westmoreland County, which motion was granted by the trial court after the court found that potential witnesses would have to travel over 200 miles to Philadelphia to testify. The trial court found that keeping the case in Philadelphia County would have been oppressive and vexatious to certain individuals involved in the litigation.

The Superior Court reversed by finding that the trial court abused its discretion in granting the motion at issue.

The Superior Court noted that, although the defense presented affidavits in support of the claim that Philadelphia County would be oppressive and vexatious venue for certain witnesses, the Defendant’s affidavits did not have any specific statements as to what testimony the affiants would provide that was necessary to the defense of the case. The court noted that most of the affidavits provided by the Defendants were from ambulance drivers, firefighters, paramedics, a deputy coroner, and an insurance claims investigator employed by the Defendant truck company.  The court found that these witnesses were not key witnesses relative to the issues presented.

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