eNotes: Liability – April 2022 – Pennsylvania

SIGNIFICANT CASE SUMMARIES

PA CASE SUMMARIES

Kim v. Commonwealth of Pennsylvania
Pennsylvania Commonwealth Court
7 C.D. 2020, 2022 Pa. Commw. LEXIS 16

Decided: February 9, 2022

Where the Commonwealth is a party, any defendant may object to venue under the Sovereign Immunity Act.

Background

This case was brought by husband and wife Plaintiffs in Philadelphia County to recover for injuries following a car crash off of State Route 452 in Delaware County. Plaintiffs blamed the accident on lack of fog lines painted on the road in a construction zone and the location of a roadside “boulder garden.” They sued the “boulder garden” land owner, the construction contractor and PennDOT. The land owner and contractor both filed Preliminary Objections for improper venue under 42 Pa.C.S. § 8523(a) because PennDOT is a Commonwealth entity, and the accident did not occur in Philadelphia County. Plaintiffs filed Answers to these Preliminary Objections arguing that only PennDOT can object to venue under Section 8523(a), and that PennDOT waived the right to object to venue in a confidential settlement with Plaintiffs. Plaintiffs alternatively argue that Pa.R.Civ.P. 1006 also supported venue in Philadelphia County.

The Trial Court heard oral arguments on the Preliminary Objections. Here, PennDOT argued that Section 8523(a) was intended for the benefit of government entities. The Trial Court found that with PennDOT as a party to the action, venue would only be proper in Delaware County. However, PennDOT waived its right to Section 8523(a)’s venue protections as part of its settlement with Plaintiffs. The Court held that Section 8523(a) is a unilateral privilege belonging to the Commonwealth, and the private parties could not enforce it. The Court overruled the objections to venue and denied the Defendant contractor’s Motion for reconsideration. Defendant contractor appealed the ruling to the Commonwealth Court.

Holding

The Commonwealth Court reversed and remanded. The Court found that Section 8523(a) and Pa.R.Civ.P 1006 are silent with regard to which party may assert Preliminary Objections for improper venue. The Court then relied upon Pa.R.Civ.P. 1028(a)(1) which governs procedures for Preliminary Objections. This rule states that a Preliminary Objection for improper venue “may be filed by any party.” Reading Section 8523(a) together with these Rules of Civil Procedure made clear to the Court that any Defendant in the litigation may raise an improper venue objection under the Sovereign Immunity Act when the Commonwealth is a party.

Questions about this case can be directed to Logan Nagle at (717) 255-7234 or lnagle@tthlaw.com.

Erie Ins. Exch. v. Montesano
Pennsylvania Superior Court
No. 262 EDA 2021, 2022 Pa. Super. Unpub. LEXIS 485

Decided: February 24, 2022

The Superior Court holds that an individual does not need to be physically living in the named insured’s residence to qualify as an “insured” under an auto policy.

Background

This case came before the Superior Court following an appeal by Plaintiff, Erie Insurance Exchange, from the Trial Court’s ruling that the Defendant was an “insured” under Erie’s auto policy. Plaintiff, Erie Insurance, instituted this declaratory judgment action seeking interpretation of the policy’s definition of “resident.” At the time of the accident, Defendant was not physically residing with Erie’s named insured. Although the Defendant resided with Erie’s insured through her graduation from high school, she left the residence soon thereafter. At her departure, she took “some” clothing, shoes and toiletries with her, but she left her jewelry, computer and remaining clothing. She then moved to her mother’s house, where she slept on a couch for one month. During that time, she updated her driver’s license and registered to vote. Thereafter, Defendant resided in a bedroom at her grandmother’s home, where she again updated her driver’s license, registered to vote, and worked part-time. Immediately prior to the accident, Defendant made arrangements to return to the named insured’s home. On her drive from her grandmother’s home, Defendant was then involved in the subject accident.

The Court determined that the policy language defining an “insured” as one residing in the residence “on a regular basis” was ambiguous. The Court further noted that the question of residency involved a “fact intensive inquiry” and that the evidence herein demonstrated that Defendant’s time with her mother and grandmother was “sporadic and temporary,” with Defendant ultimately intending to return to her prior home. Finally, the Court went on to indicate that it was proper for the Trial Court to consider evidence of Defendant’s intentions when it is merely “a” factor, and not the sole factor, in determining residency.

Holding

The Superior Court affirmed the Trial Court’s decision, holding that, absent specific policy language providing otherwise, an insured is not required to be physically living at the named insured’s residence in order to qualify as an “insured” under the policy.

Questions about this case can be directed to Katherine Prudente at (267) 861-7571 or kprudente@tthlaw.com.

Bellan v. Penn Presbyterian Med. Ctr.
Pennsylvania Superior Court
No. 1118 EDA 2021

Decided: February 22, 2022

COVID-19 is no excuse for failing to timely serve Defendant with original process.

Background

Plaintiff filed a Complaint against Defendant sounding in medical malpractice within the applicable statute of limitations. Plaintiff attempted service by process server at Defendant’s general counsel’s office, but due to the COVID pandemic, Plaintiff learned that no one would be available to accept service until 2021. Plaintiff did not file an Affidavit of “no service” or attempt to reinstate the Complaint after it expired. Five months after the statute of limitations expired, Defendant’s general counsel, upon the first request by Plaintiff’s counsel, accepted service by email. Defendant preliminarily objected to improper service of the Complaint, alleging untimely service and failure to reinstate the Complaint. The Trial Court sustained the Preliminary Objections and dismissed Plaintiff’s Complaint, with prejudice.

On appeal, Plaintiff argued that he should have been equitably permitted to extend the period for service because of the lack of personnel to accept service on behalf of the Defendant due to the COVID pandemic. The Court observed that while the Supreme Court declared a general, statewide judicial emergency relating to the pandemic, that designation expired on June 1, 2020, so his attempt to blame the pandemic was misplaced. A plaintiff is required to make a good-faith effort in diligently and timely serving process on a defendant. When a defendant presents a factual dispute as to whether a plaintiff has fulfilled this duty, the plaintiff bears an evidentiary burden to demonstrate that he has met this burden. The Court noted that Plaintiff did not serve the Defendant within 30 days of the filing of the Complaint and did not thereafter seek to reinstate the Complaint or file an Affidavit of “no-service.” The Court ruled that a good-faith effort to serve Defendant had not been demonstrated where the Plaintiff made one unsuccessful attempt at service, provided no explanation for the failure to file an Affidavit of “no-service,” did not seek permission for alternative service, and did not establish that counsel made a diligent effort to learn how he could have served the Defendant.

Holding

The Superior Court affirmed the Order dismissing Plaintiff’s Complaint due to the clear lack of due diligence in serving the Defendant.

Questions about this case can be directed to James F. Swartz, III at (610) 332-7028 or jswartz@tthlaw.com.

M.R. v. Bunting
Pennsylvania Superior Court
No. 1328 EDA 2021

Decided: February 18, 2022

Superior Court affirmed summary judgment holding that dog owner cannot be liable where insufficient evidence that owner knew or had reason to know of dog’s dangerous propensities.

Background

M.R. (“minor Plaintiff”) through his legal guardian Joyanne Ashby, appealed the Court’s summary judgment dismissing his Complaint. Minor Plaintiff and Ms. Ashby were staying at Defendant’s home. Defendant left the home, and minor Plaintiff and Ms. Ashby were alone with Defendant’s eight-year-old Yorkshire terrier, Ruger. Minor Plaintiff dropped a piece of candy on the floor and when he went to pick it up, Ruger lunged for the candy and bit minor Plaintiff on the lip. Soon after the incident, Ms. Ashby was allegedly told that Ruger had previously bitten someone. On behalf of minor Plaintiff, Ms. Ashby filed a Complaint sounding in negligence and negligence per se. The Court granted summary judgment in favor of the Defendants.

Holding

On appeal, the Court held that there was insufficient evidence to show that Defendant knew or had reason to know that Ruger had dangerous propensities. The Court found that other than Defendant’s statement that she heard the dog had bitten someone in the past, there was no evidence of any prior behavior that revealed that Defendant had knowledge of a danger and failed to take precautions of such danger.

Questions about this case can be directed to Danielle Vols at (570) 825-6890 or dvols@tthlaw.com.

Monger v. Encompass Health Rehab. Hosp.
Pennsylvania Superior Court
No. 862 MDA 2021, 2022 Pa. Super. Unpub. LEXIS 392

Decided: February 10, 2022

Plaintiff’s failure to amend her Certificates of Merit after she was made aware of the deficiencies and prior to the entrance of judgment of non-pros, amounted to non-compliance with Pa.R.Civ.P. 1042.3(a)(1) and, accordingly, judgment of non pros was appropriate.

Background

Plaintiff filed a medical malpractice action against various healthcare providers for the wrongful death of her husband. At the time of filing, Plaintiff filed Certificates of Merit as to all Defendants. However, she failed to properly complete the Certificates to comply with the requirements of Pa.R.Civ.P. 1042.3(a)(1), as the Certificates contained duplicative paragraphs of confirmatory language pursuant to Pa.R.Civ.P. 1042.3(a)(2). Thus, Plaintiff’s Certificates of Merit only put forth vicariously liability claims against each Defendant, but did not put forth claims of direct liability.

All Defendants filed Petitions for judgment of non pros as to direct liability. Defendants’ Petitions were straightforward and informed of Plaintiff’s defects/oversight. The Petitions were consolidated for oral argument. At argument, Defendants argued that Plaintiff did not follow the requirements of Pa.R.Civ.P. 1042.3(a)(1) and, therefore, failed to put forth a cause of action as to direct liability. Plaintiff, even when presented with these arguments, continued to deny the allegations and again rested on her Certificates of Merit as filed. The Trial Court then granted the Petitions for non pros for Plaintiff’s failure to comply with Pa.R.Civ.P. 1042.3(a)(1). Only after the entries of non pros did Plaintiff acknowledge in her Petition to open the judgments that her Certificates of Merit were deficient, precisely as Defendants had warned.

The Trial Court denied the Petition to open the judgments because, while Plaintiff complied with Pa.R.Civ.P. 3051(a)(1) & (3), timely filing of a Petition to open judgment and having a meritorious cause of action, the Court found that Plaintiff failed to satisfy Pa.R.Civ.P. 3051(a)(2), having a reasonable explanation or legitimate excuse for the conduct that gave rise to the entry of judgment of non pros. The Trial Court noted that Plaintiff had sixty days’ notice of the deficiencies with her Certificates of Merit from the date of the filing of the first Petition and the date for oral argument. Rather than investigate the allegations contained in Defendants’ Petitions, Plaintiff simply denied the Petitions without examining her Certificates of Merit. The Court noted that if counsel had performed a minimum investigation into Defendants’ allegations, Plaintiff would have discovered the errors. Accordingly, Plaintiff’s failure to investigate Defendants’ allegations was determined by the Court to amount to “no attempt to conform” with Pa.R.Civ.P. 1042.3 (a)(1), and could not be considered substantial compliance in accordance with Pa.R.Civ.P. 126. The Superior Court agreed with the reasoning of the Trial Court and affirmed its Orders.

Holding

A judgment of non pros will be entered, and a petition to open denied, where a Plaintiff has knowledge of a defect in a certificate of merit prior to the entering of a judgment of non pros, but Plaintiff fails to take any corrective action before a judgment of non pros is entered, and there is no reasonable explanation or legitimate excuse Plaintiff’s failure.

Questions about this case can be directed to Jonathan Danko at (717) 441-3957 or jdanko@tthlaw.com.

Dinardo v. Kohler
Pennsylvania Superior Court
No. 1905 EDA 2020, 2022 Pa. Super. LEXIS 40

Decided: January 26, 2022

Parents of convicted murderer could not bring action against medical personnel who failed to prevent their child’s criminal behavior.

Background

Mother of a confessed murderer filed suit against various medical providers alleging that the reason her son committed four murders was due to the medical provider’s negligent psychiatric care. The medical providers filed Preliminary Objections to the Amended Complaint arguing that recovery was not possible under Pennsylvania’s “no felony conviction recovery” rule as the Mother’s son had pled guilty and was convicted of all four murders in the Court of Common Pleas of Bucks County. The mother argued that the “no felony conviction recovery” rule did not apply because the rule only prevents a party from seeking profit for his crime. The Superior Court was not persuaded noting that her son’s reported damage “flow[s] from criminal conduct underlying [his] convictions for first-degree murder.”

Holding

Mother’s Amended Complaint was dismissed in its entirety as she failed to state a valid claim for monetary damage due to “no felony conviction recovery” rule.

Questions about this case can be directed to Hannah Molitoris at (267) 861-7589 or hmolitoris@tthlaw.com.