Please Save the Date - September 25th - Mediation/Arbitration Tips to be Presented Again

The Zoom CLE entitled "Mediation/Arbitration Tips" that I created and previously presented in Luzerne and Lackawanna County is set to be presented again, this time in Monroe County on September 25th.

We have expanded the progam to 1.5 hours and we are adding Attorney Gerard J. Geiger of Monroe County to the All-Star cast of presenters that will also include Judge Thomas Blewitt (ret.), Attorney Richard G. Fine, Attorney Thomas B. Helbig, Attorney Lucille Marsh, Judge Joseph Van Jura (ret.), and Judge Thomas I. Vanaskie (ret.).

Please consider registering for this CLE program.

Some Courts Continue to Allow Allegations of Recklessness Regardless of the Facts of the Case

The differences of opinion on how to handle claims of recklessness in a personal injury Complaint continues across Pennsylvania.

Here is a LINK to a detailed Order issued by Judge Lachman of the Philadelphia County Court of Common Pleas in the case of Samuel v. CVS Pharmacy, Inc., Feb. Term 2020, No. 00511, Control No. 20052148 (C.P. Phila. Co. July 24, 2020). In this case, the court overruled the Preliminary Objections asserted by the defense to the allegations of willful, wanton, or reckless conduct. The court sited to the case of Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009) for the proposition that these types of allegations are averments of states of mind that are permitted to be pled generally under Rule 1019(b). 

The court in Samuel also held that averments of recklessness and wanton or willful behavior may also be properly pled to counter claims of comparative or contributory negligence. In this regard, the court cited several Pennsylvania Superior Court decisions as noted in the Order.


In another case involving the issue of the propriety of allegations of recklessness in a personal injury Complaint, the court overruled Preliminary Objections in the case of Capone v. Shukaitis, No. C-48-CV-2019-11239 (C.P. Northampton Co. April 23, 2020 Sletvold, J.). 

In this motor vehicle accident case, the Plaintiff alleged allegations of reckless conduct on the part of a Defendant who allegedly made a left hand turn across the path of a motorcycle operated by the Plaintiff. The defense filed Preliminary Objections to the allegations of recklessness.

In this decision, Judge Sletvold adopted the reasoning of Judge Samuel Murray of the same court in the case of Speight v. Schlacter, No. C-48-CV-2019-6973 (C.P. Northampton Co. Jan. 28, 2020), in which that court, citing the case of Archibald v. Kemble, asserted that allegations of willful, wanton, and reckless conduct are averments of a condition of the mind that may be alleged generally under Pa. R.C.P. 1019(b). The court in both the Speight case and this Capone case also emphasized that the Plaintiff had not pled or claimed punitive damages and that, as such, the Defendant would not be prejudice by the allegation of recklessness.

As such, the Preliminary Objections to the claims of recklessness were denied in both cases.

Anyone wishing to review a copy of the Capone case may click this LINK.

I send thanks to Attorney George W. Westervelt, Jr. of the Westervelt Law Office in Stroudsburg, Pennsylvania for sending the Capone case to my attention.

Split of Authority on Propriety of Allegations of Recklessness in the Absence of Supporting Facts Continues

The split of authority continues with respect to how Pennsylvania trial courts are viewing what level of pleading is necessary to support a claim of recklessness in a personal injury matter.  One line of that authority holds that anyone can claim recklessness in any case whatsoever regardless of the facts presented.

Under a second line of authority, such as those decisions out of Monroe County and other counties, trial court judges are heeding to the well-settled principle that Pennsylvania is a fact-pleading state and that sufficent facts of an outrageous nature are necessary to support claims of recklessness in a personal injury Complaint.

In his recentl decision in the case of Yockey v. Pocono Market Place, LLC, No. 8733-CV-2019 (C.P. Monroe Co. Aug. 3, 2020 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas sustained a Defendant’s Preliminary Objections to allegations of gross negligence and recklessness in a Plaintiff’s trip and fall Complaint and struck those allegations from the matter. 

More specifically, the court held that the Plaintiff “failed to plead material facts in support of such allegations” of recklessness and gross negligence.   See Op. at p. 2. 

The court emphasized that Pennsylvania is a fact-pleading state and that pleadings must summarize those facts essential to support the claims asserted and in order to allow the opposing party to properly raise and assert defenses. 

In this matter, the Plaintiffs alleged in their Amended Complaint that the Plaintiff was injured due to a cracked and uneven walking surface that resulted in “dangerous conditions.” The Plaintiff asserted that he Defendants’ “negligence, gross negligence, carelessness, and recklessness” allowed such a condition to exist. 

The court specifically noted in its Opinion that the Plaintiffs alleged no facts specific to the claims of gross negligence or recklessness. 

Judge Arthur L. Zulick
Monroe County

Judge Zulick additionally stated that the Plaintiffs’ description of the walking surface alone did not suggest why the Defendants were grossly negligent or reckless. The court emphasized that additional facts were necessary as a matter of law because allegations of gross negligence and recklessness required different factual support than the claim of mere negligence. 

The court also rejected the Plaintiff’s argument that discovery is required to determine the facts to support the claims of gross negligence and/or recklessness. Judge Zulick stated that a Plaintiff must aver specific facts in the Complaint to support the claims. He  emphasized that plaintiffs “are not permitted to file a claim in the hopes that exploratory discovery will reveal a claim.”  See Op. at 6. 

In light of the reasons noted above, the court sustained the Defendants’ Preliminary Objections to the Plaintiff’s Amended Complaint and struck the allegations of gross negligence and recklessness. 

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

I send thanks to Attorney Joseph A. Murphy of the Scranton, Pennsylvania office of Bardsley, Benedict & Cholden, LLP, for bringing this case to my attention.

UIM Bad Faith Complaint Over Disputed Value Dismissed as Conclusory

In the case of Taylor v. GEICO, No. 2-20-CV-00729-CRE (W.D. Pa. Aug. 4, 2020 Eddy, Chief Mag. J.)(Mem. Op.), the court granted a carrier's Motion to Dismiss a Plaintiff's statutory bad faith claim in a UIM matter but allowed the Plaintiff the right to amend.

In this decision by a Chief Magistrate Judge in the Western Federal District Court, it was ruled that the Plaintiff's Complaint did not hold up against the plausibility standard.  The Court noted that a "formulaic recitation of the elements of a cause of action will not do." Op. at p. 4. 

The Court noted that the Plaintiff's Complaint did not show anything more than a dispute between the Plaintiff and the carrier over the value of the claim.  It was noted that a dispute over the evaluation does not give rise to a bad faith claim;  rather, a plaintiff must plead facts to show that the carrier's evaluation lacked a reasonable basis and that the carrier knew or recklessly disregarded the fact that its evaluation was unreasonable.

This Opinion gives a nice overview of the Rule 12(b)(6) standard of review as well as the elements of a valid bad faith claim.

Anyone wishing to review 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.

Propriety of Utilizing a Learned Treatise At Trial Reviewed By Pennsylvania Superior Court

In the case of Charlton v. Troy, No. 2020 Pa. Super 170 (Pa. Super. July 16, 2020 Bowes, J., Olson, J., and Ford Elliott, P.J.E.) (Op. by Bowes, J.), the Pennsylvania Superior Court addressed the propriety of using a learned treatise to cross-examine a witness at a medical malpractice trial.

In the end, the Superior Court found that the trial court erred in allowing a Plaintiffs’ attorney to cross-examine the Defendant physician, who testified as a fact witness at trial, about the contents of a medical textbook that the witness did not recognize as authoritative. The court ruled that this error caused extreme prejudice to the Defendants. As such, the substantial jury verdict was vacated and the case was remanded for a new trial.

The Superior Court found that there was no foundation laid that would establish that the textbook was a learned treatise for the limited purpose of impeaching the Defendant. The court noted that the Pennsylvania Rules of Evidence did not recognize a hearsay exception for a learned treatise, i.e., any textbook or published work or periodical that has been accepted as authoritative or as reliable authority by members of a specific professional community. Rather, the court noted that the contents of a learned treatise offered at trial to establish principles or theories is inadmissible hearsay as extra-judicial declarations offer to prove the truth of the matter asserted within the treatise.

However, such materials may be utilized to impeach an expert with statements contained in such a text or publication if those statements are deemed authoritative or reliable by that witness or other experts in the relevant field.

The court noted that the Defendant doctor could have been questioned about the contents of the textbook if he was an expert. However, as he was only testifying as a fact witness, the Defendant doctor could only be cross-examined with a publication that he agreed was authoritative or reliable. No such foundation was laid in this regard in this case as the witness did not recognize the work as authoritative.

The appellate court found that this error was exacerbated at trial by the fact that the Plaintiff was allowed to argue the substance of the inadmissible excerpts in the closing argument.

In colorful language, the Superior Court noted that, because the error at trial in the admission of the evidence was "of such a consequence that, like a dash of ink in a can of milk, it cannot be strained out, the only remedy, so that justice may not ingest a tainted fare, is a new trial."  See Op. at p. 37 [citation omitted].

In the end, the appellate court vacated a $40+ million dollar verdict and remanded the case for further proceedings.

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


Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (July 28, 2020).

Third Circuit: Attempts To Amend Pleadings in Federal Court After Deadline Must Be Supported by Good Cause

In the case of Premier Comp Solutions v. UPMC, No. 19-1838 (3d Cir. Aug. 12, 2020) (Op. by Hardiman, J.), the court addressed the discretion of federal district trial court judges to manage their dockets, particularly with respect to allowing amendments to Complaints or the joinder of additional parties after the expiration of deadlines set in the trial court's case management order. 

According to the Opinion, Plaintiff in this matter moved to amend its Complaint to add a party well after the expiration of the deadline for amendments to pleadings that the district court had set in a Scheduling Order. 

In its motion, the Plaintiffs cited the liberal standard set forth in Rule 15 of the Federal Rules of Civil Procedure, which is entitled "Amended and Supplemental Pleadings." The district court denied the motion under the rationale that, because the deadline had passed, Federal Rule of Civil Procedure 16(b)(4) required the Plaintiff to show good cause. Federal Rule of Civil Procedure addresses, in part, rules pertaining to "Scheduling" issues.

The Third Circuit Court of Appeals affirmed the decision of the district court under the reasoning that Rule 16(b)(4) applies to requested amendments once a Scheduling Order deadline for the same has passed. As such, under this standard, after the deadline set by the district court’s Scheduling Order has expired, a party is required to show good cause to allow for the amendment 

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



Source: “Court: Post-Deadline, Parties Required to Show ‘Good Cause’ to Amend Complaints or Add Parties,” by P.J. D’Annunzio of the Pennsylvania Law Weekly (August 13, 2020).

Validity of Punitive Damages Claims in a Trucking Accident Case Addressed

In the case of Decker v. Ramos, No. 15-CV-7078 (C.P. Lacka. Co. July 16, 2020 Nealon, J.), the court addressed a Defendant’s Motion for Summary Judgment in a trucking accident case. 

The Defendants sought to dismiss the tractor trailer driver as a named party since the employer admitted, for purposes of vicarious liability, that the driver was acting within the scope of his employment at the time of the accident. 

The court rejected this summary judgment request of the defense finding that, under the theory of respondeat superior, a primarily liable employee and a vicariously liable employer are not considered to be joint tortfeasors. The court also noted that the goal of vicarious liability is to provide a secondary fund of recovery if the employee-tortfeasor lacks the ability to pay. 

The court noted that Pennsylvania law permits an injured Plaintiff to sue both the primarily liable employee and the vicariously liable employer and to obtain a recovery from either party. The court stated that the defense did not cite any authority to the contrary involving cases where the employer concedes and agency relationship with the employee. As such, the Motion for Summary Judgment was denied in this regard. 

Judge Terrence R. Nealon
Lacka. Co.

Judge Nealon also addressed other parts of the Motion for Summary Judgment raised by the defense seeking to secure a dismissal of punitive damages claims. 

On the one hand, the defense asserted that they were entitled to summary judgment on the punitive damages claims against the Defendant driver as the Plaintiff did not allege that the driver’s conduct at the time of the accident was reckless. Rather, the Plaintiff based their punitive damages claims against the Defendant tractor trailer driver on the single assertion that the driver had overstated his tractor trailer driving experience on his employment application. 

After finding that their record failed to show any evidence, or even any support for reasonable inference, that the driver knew or should have realized that there was a strong probability that harm to others may result to his misrepresentation on his employment application, the court held that there was insufficient evidence to sustain any punitive damages claim against the driver. As such, the Motion for Partial Summary Judgment was granted by the court in this regard in terms of any punitive damages claims against the tractor trailer driver. 

However, the court denied the Motion for Summary Judgment filed on behalf of the employer/trucking company with respect to the punitive damages claims after reviewing the evidence in the record in this regard. The court noted that, as noted, the record contained evidence that the driver exaggerated the extent of his prior tractor trailer experience on his employment application and there was also evidence that the trucking company allegedly failed to conduct any past employment investigation as required by federal regulations to verify the driver’s prior experience. 

It was also noted that there was evidence in the record that the employer allegedly disregarded industry standards by failing to terminate the driver, or at a minimum, compelling him to undergo remedial training after he was involved in his first preventable crash during his probationary period. It was otherwise noted that the subject accident was the tractor trailer driver’s third collision within his first month of employment with the company. 

The Plaintiff had also alleged in this matter that the employer ignored the federal requirements when the employer continued to allow the driver to operate its tractor trailers allegedly without first completing safety training that was clearly required by law. 

The court also confirmed that the Plaintiff had presented expert opinion evidence that the trucking company’s actions represented a recklessness indifference and reckless disregard to the safety of the motoring public. 

Based upon this evidence in the record, the court denied the defense Motion for Summary Judgment on the punitive damages claims asserted against the trucking company Defendant. 

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