Nursing Home's Effort to Have Lawsuit Dismissed By Virtue of an Arbitration Clause Denied

In the case of Perry v. Saber Healthcare Holdings, LLC, No. 2024-CV6608 (C.P. Lacka. Co. June 6, 2025 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed various Preliminary Objections filed in a nursing home malpractice case.

According to the Opinion, the Plaintiff sustained injuries as a result of a fall.  Thereafter, the Plaintiff, through his daughter pursuant to her Power of Attorney, asserted claims of negligence, breach of contract, and other claims against the facility.

Among other issues, the Defendant facility raised Preliminary Objections asserting that the cause of action filed was required to instead be submitted to binding arbitration pursuant to an arbitration agreement executed by the daughter at the time the father was admitted to the facility.

The court ruled that, since the Power of Attorney that the father provided to his daughter expressly stated that the daughter was not authorized to enter into any arbitration agreement on his behalf with any skilled nursing facility or personal care home, the daughter could not bind her father to any arbitration agreement.

Judge Terrence R. Nealon
Lackawanna County 

Accordingly, Judge Nealon found that there was no enforceable arbitration agreement in place. As such, the Preliminary Objection seeking to have this case transferred to arbitration was overruled.

The court otherwise ruled that certain negligence allegations submitted on behalf of the Plaintiff were not barred by the gist of the action doctrine even though some of the claims presented in this case were based in contract. The court found that the claim for negligent hiring, supervision and retention were collateral to the contract and not contingent on the breach of any terms of the admission agreement.

The court otherwise sustained the demurrer filed against the Plaintiff's claim for intentional infliction of emotional distress given that the Complaint did not allege conduct that was so outrageous in character and extreme in degree as to exceed all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community.

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Trial Court Judge Addresses Post-Trial Issues Including Issues With Verdict Slip and With Bifurcation of Trial

In the case of Major v. Five Star Equipment, Inc., No. 2020-CV-3550 (C.P. Lacka. Co. May 9, 2025 Nealon, J.), the court addressed several post-trial issues after a defense verdict in a case involving a pedestrian who was hit by a motor vehicle.

Of note, the court addressed various issues raised with regards to the content of the Verdict Slip and factual cause questions, as well as with respect to the bifurcation of the liability and damages phases of the trial.

After providing a thorough review of the applicable law, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas ruled that there were no errors with regards to the content of the Verdict Slip and the various questions presented to the jury on that slip.

The court otherwise noted that the bifurcation of the trial was warranted under the circumstances presented in the case, including the fact that counsel had underestimated the number of days it would take to try the case during the pre-trial proceedings.

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


Source: “The Legal Intelligencer Weekly Case Alert” on www.Law.com (June 4, 2025).

Court Rules that Defendant's Summary Judgment on Plaintiff's Claims Also Eradicates Cross-claims by Co-Defendant

In the case Robinson v. Phila. Intern. Airport, 263 C.D. 2002 (Pa. Cmwlth. June 9, 2025 Fizzano Cannon, J., McCullough, J., and Hannah Levitt, J.) (Op. by Fizzano Cannon, J.), the court granted the interlocutory appeal and addressed Motions In Limine in a municipal liability personal injury case.

This matter arose out of a slip and fall incident at the Philadelphia International Airport.  The Plaintiff apparently took a trip prior to her flight.

In this appeal, the court noted that, where summary judgment had been granted against the Plaintiffs’ claims against the municipal Defendant, that Defendant could not be held liable for purposes of contribution or indemnity relative to the Co-Defendants.

The court more specifically noted that, where the municipal Defendant had secured summary judgment on the common law ground that it did not have actual or constructive notice of the condition on the land that the Plaintiff claimed was responsible for her injury, that Defendant likewise could not be held liable for indemnity on the cross-claims asserted by the Co-Defendants.

The Commonwealth Court additionally noted that, because the non-municipal Defendant did not oppose the municipal Defendant’s summary judgment motion against the Plaintiff’s claims, which claims were also the basis of the non-municipal Defendant’s crossclaims, that non-municipal Defendant was found to have waived any right to contest the granting of summary judgment.

That waiver and the entry of summary judgment precluded the non-municipal Defendant from later moving to have the municipal Defendant added to the verdict sheet under the Fair Share Act. This was so because the municipal Defendant, by virtue of summary judgment decision, had already been adjudicated as not being a joint tortfeasor with the Co-Defendant relative to the claims of the Plaintiff.

The Court ruled that a subsequent trial judge’s Order granting the non-municipal Defendant’s Motion In Limine to allow evidence against the municipal Defendant and to place it on the verdict sheet therefore violated the coordinate jurisdiction doctrine. As such, the court on appeal ruled that the non-municipal Defendant could certainly assert that it was not liable on the Plaintiff’s claims at trial, but that Defendant could not argue that the municipal Defendant was liable.

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


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

Source of image:  Photo by Alex P on www.pexels.com.

Appellate Court Addresses Applicability if an Absolute Auto Exclusion in a Business General Liability Policy

In the case of Chris Eldredge Containers v. Crumb & Foster Specialty Ins., 2025 Pa. Super. 92 (Pa. Super. April 24, 2025 Lazarus, P.J., King, J., Lane, J.) (Op by. Lazarus, P.J.), the court addressed a coverage issue in this declaratory judgment action involving various coverage issues, including the applicability of an automobile exclusion in a business policy in a case involving an accident that involved a service truck driven by an employee of the carriers' insured.

The appellate court noted that it was proceeding under a de novo standard of appeal, meaning that it was not limited by the trial court's rationale and could affirm or reverse the trial court decision on any basis.   

The Pennsylvania Superior Court ruled that the absolute auto exclusion, which excluded coverage for bodily injury under the policy for any incident arising out of the use of an auto, was found to be ambiguous in the context of this policy and was, therefore, found to be not enforceable.

The Superior Court additionally ruled that the ownership clause in the absolute auto exclusion was found to be ambiguous when it failed to specify whose ownership, maintenance, use, or entrustment served to trigger that exclusion.

In the end, the appellate court reversed the trial court decisions and found that the carriers did owe a duty to defend and indemnify its insured under the facts presented.

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

Source: “Court Summaries” in the Pennsylvania Bar News By Timothy L. Clawges (June 9, 2025).

Source of image:  Photo by Vlad Deep from www.unsplash.com.

Trial Court Grants UIM Carrier's Motion to Sever and Stay a Companion Bad Faith Claim in a Post-Koken Case

In the case of Bixler v. Erie Insurance Exchange, AD No. 2024-CV-11155 (C.P. Butler Co. June 5, 2025 Streib, J.), the court issued an Order in a post-Koken case granting the UIM carrier’s Motion to Sever and Stay the bad faith claim from the UIM claim. The court did not issue any Opinion with this Order.

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

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

Court Applies Forum Selection Clause Contained in Pre-Surgery Consent Form To Transfer Medical Malpractice Case Out of Philadelphia Venue to Bucks County

In the case of Somerlot v. Jung, Sept. Term 2023, No. 3138 (C.P. Phila. Co. Nov. 25, 2024 Bright, J.), the trial court issued a Rule 1925 Opinion requesting the Pennsylvania Superior Court to uphold the Philadelphia County trial court’s decision to transfer a medical malpractice case from Philadelphia County to Bucks County.

According to the Opinion, this matter arose out of an alleged medical malpractice claim related to a surgery that was rendered in Bucks County to a Bucks County resident Plaintiff by a Bucks County physician/medical practice.

The court based its decision on transferring the case from Philadelphia County to Bucks County on a valid forum selection clause that was contained in a pre-surgery consent form executed by the Plaintiff.

The Plaintiff pointed to the fact that one of the Defendants, a medical device manufacturer, had previously stipulated with the Plaintiffs that venue was proper in Philadelphia as to that Defendant. However, the trial court noted that the propriety of venue in Philadelphia was not dispositive based on the fact that a Defendant had previously stipulated to venue in Philadelphia. 

Here, the court noted that the injured Plaintiff had contracted to litigate in a different, but also proper venue when the Plaintiff executed the consent form. The trial court held that it was giving preference to the Plaintiffs’ original choice of forum, as reflected in the executed consent form. 

The court additionally noted that litigating the entire case in Bucks County would void splitting the case just as effectively as reversing the transfer of moving the matter back to Philadelphia as was requested by the Plaintiffs. 

The trial court additionally stated that there were no exceptional circumstances present in this case that would warrant straying from the general principle that a valid forum selection clause is to be honored by the courts.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 27, 2025).

Superior Court Overturns Med Mal Defense Verdict Based on Erroneous Evidentiary Rulings by Trial Court

In the case of Hagelauer v. Mainline Emergency Medicine Associates, LLC, No. 2064 EDA 2024 (Pa. Super. June 2, 2025 Panella, P.J.E., Beck, J., and Ford Elliot, P.J.E.) (Op. by Panella, P.J.E.), the Pennsylvania Superior Court addressed various issues raised following the entry of a defense verdict in a medical malpractice case.

According to the Opinion, the allegations pertained to the treatment, or lack thereof, relative to a deceased Plaintiff who suffered cardiac arrest.

The Pennsylvania Superior Court overruled the defense verdict based upon a finding, in part, that the trial court had improperly barred the Plaintiffs from cross-examining the Defendants’ expert about an article that the expert had authored which conflicted with his trial testimony.

The Superior Court noted that an expert's authoring of an article and including a reference to the article in his CV constituted an adoption of the information contained in the article by that expert. The appellate court found that it was not credible that an expert would author an article that she or he did not adopt and support.

As such, the preclusion by the trial court of the cross-examination of the Defendant's expert on that article was found to be reversible error as the Superior Court ruled that the jury missed out on important information that might have colored its evaluation of that expert’s credibility.

The Superior otherwise addressed a separate issue of hearsay within hearsay that arose during the course of the trial.

The appellate court noted that it was not an abuse of discretion by the trial court to have excluded a note written by the Plaintiff as inadmissible double hearsay.

The note at issue included a compound statement referred not only to the Plaintiff's state of mind, but also referenced medical instructions.

While the portion of the statement that referenced the Plaintiff's state of mind may have been admissible under Pa.R.E. 803(3)'s hearsay exception related to a declarant's statement of their then-existing state of mind or condition, here, the court noted that compound statements such as the one at issue were not admissible.

Rather, the court noted that, given the existence of hearsay within hearsay, the trial court properly excluded the evidence.

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


Source: “Bad Evidentiary Ruling In Med Mal Trial Spurs Pa. Appeals Court To Toss Hospital’s Defense Verdict,” By Aleeza Furman of The Legal Intelligencer (June 4, 2025).

Soure of image: Photo by Katrin Bolovtsova on www.pexels.com.