Court Finds No Duty Owed By Landowner Where Person Hit By Wayward Target Shooting Shot Coming From the Land

In the case of Folcomer v. Craft, No. 2018-SU-0025278 (C.P. York. Co. Jan. 8, 2025 Menges, J.), the court granted a Motion for Summary Judgment filed by certain Defendants in a tragic shooting accident matter.

According to the Opinion, one of the Defendants in this case lived on the moving Defendant’s property. On the day of the incident, certain Co-Defendants were target shooting on the property.

Nearby, the Plaintiff and the Plaintiff’s decedent left their home and began a drive.

A bullet from the shooting target area of the nearby home traveled through the target, into the nearby woods, ricochet off a roadway and struck the decedent who was a passenger in the Plaintiff’s vehicle.

The Defendants who filed the summary judgment motion in this case were the owners of the property on which the target shooting was taking place.

In this decision, the court ruled that no duty exists to control the acts of third parties unless a “special relationship exists with either the actor the victim."

In this decision, the court also addressed the Nanty-Glo rule and found that this rule did not bar summary judgment in this case as the testimony relied upon by the moving the Defendant was from adversarial Co-Defendants.

The court also referred to §318 of the Restatement (Second) of Torts and found that the moving Defendant landowners had no duty to control the conduct of the shooting Defendants as there was no evidence that the moving Defendants were aware of any continuous or dangerous use of the land that would have allowed them an opportunity to intervene. In this case, it appeared that the act of target shooting on the property was not an ordinary event.

In the end, the court granted the Motion for Summary Judgment filed by the moving Defendants who were the owners of the land in question.

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


I send thanks to Attorney Stephen M. Hickey of the York, PA law firm of Griffith, Lerman, Lutz & Scheib for bringing this case to my attention.

Federal Court Addresses When Time Begins To Run To Determine if Removal To Federal Court Was Filed Too Late

In the case of Baucom v. Vidal, No. 2:24-CV-01818-JFM (E.D. Pa. Dec. 12, 2024 Murphy, J.), the court addressed a Plaintiff’s Motion to Remand a motor vehicle accident case from federal court back down to state court. 

The court noted that the issue before it was when the Defendant’s thirty (30) day time period to remove a case to federal court begins to run.

According to the Opinion, the Plaintiffs filed this suit in the Court of Common Pleas of Philadelphia and alleged that the damages claimed were in excess of $50,000.00.

At some point in time after the statutory thirty (30) day removal clock had expired, the Plaintiffs made it known that they were actually seeking more than $350,000.00, that is, an amount more than enough to satisfy the $75,000 amount necessary to support diversity jurisdiction.

At that point in time, the Defendants filed a Notice of Removal to the federal court. The Plaintiff then moved to remand the case back to state court, saying that the removal was too late.

The court noted that the questions before it was whether the original Complaint filed in the state court put the Defendants on notice that the amount in controversy exceeded $75,000.00.

Judge Murphy noted that the answer to this question is straightforward under the Third Circuit Court of Appeals’ bright-line test.  Under the appropriate standard of review, the court noted that, if an initial pleading does not give the Defendant notice of the right to remove the case to federal court, the Defendants shall file a Notice of Removal within thirty (30) days after receipt, by the Defendant, of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has indeed become removable. In this regard, the court cited to the Third Circuit’s decision in McLaren v. UPS Store, Inc., 32 F.4th 232 (3d Cir. 2022).

This federal district court noted that the Defendants were not on notice that the amount in controversy exceeded $75,000.00 until the Plaintiffs made their $350,000.00 settlement demand. As such, the court found that the Defendant’s removal was timely. Accordingly, the Plaintiff’s Motion to Remand was denied.

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

Source: “The Legal Intelligencer Federal Case Alert.” www.Law.com (Jan. 2025).

Many Volunteer Jurors Needed For First Round Of Mock Trial Competition in Scranton on February 4, 2025

HOPING YOU CAN PLEASE CONSIDER DONATING YOUR TIME AND EXPERTISE AS A MOCK TRIAL JUROR FOR THIS YEAR'S COMPETITION IN SCRANTON, PA.   

Federal Court Judge Wolson Allows Plaintiff to Secure Claims Evaluation Documentation From UIM Carrier in Discovery

In the case of Long v. Progressive Adv. Ins. Co., No. 2:24-CV-01735-JDW (E.D. Pa. Dec. 11, 2024 Wolson, J.), the court addressed a Motion to Compel filed by a Plaintiff against a UIM carrier.

According to the Opinion, the Plaintiff was involved in a motor vehicle accident and brought a UIM claim against Progressive.

During the course of the matter, Plaintiff’s counsel sent a demand package to Progressive requesting the tendering of the limits. The court noted that the Defendant had not yet evaluated the Plaintiff’s claim but did so thereafter.

It was noted that, when Progressive produced a claim evaluation documentation in discovery, the carrier had redacted information from the document, including the value it had placed on the Plaintiff’s claim as well as with respect to the analysis with the specific elements of the Plaintiff’s claim. Progressive redacted the documents on work product grounds.

The Plaintiff filed a Motion to Compel the Defendant carrier to produce an unredacted document.

The court granted the Plaintiff’s Motion after finding that the Defendant carrier had failed to meet its burden of showing that it had created the information, which had been redacted, in anticipation of litigation.

The court noted that the UIM carrier had a duty to investigate and evaluate the Plaintiff’s UIM claim and, based on the court's review of the record before it, the carrier had not yet investigated and evaluated the claims presented by the time it created the claim evaluation document.

Although the court acknowledged that the demand letter from Plaintiff’s counsel could have prompted the Defendant to conduct the evaluation or to complete it quicker, the court found that the Defendant had a separate, business-related (i.e, not litigation-related) obligation to perform the evaluation.

Judge Wolson additionally noted that the demand letter did not demand any more than what Progressive had offered or more than the policy limits. The demand letter also did not threaten a bad faith claim. Accordingly, the court found that there were no circumstances to suggest that the evaluation by the carrier was prepared in anticipation of litigation.

Judge Wolson noted held that there was no per se rule that every document created by an insurance company after receiving a demand letter from an insured qualified as a document protected by the work product doctrine. The court ruled in this fashion after finding that a demand letter did not absolve an insurance company of its obligation to evaluate a claim.

Accordingly, the court rejected the carrier’s assertion of the work product privilege over a claim evaluation document where the carrier had a legal obligation to evaluate an insured’s claim and had not yet evaluated the claim when the insured sent a demand letter. 

In essence, the court in this matter felt that this demonstrated that the evaluation was prepared in the ordinary course of business, rather than in anticipation of litigation.

Accordingly, the court granted the Plaintiff’s Motion to Compel discovery.

It is noted that the court began its Opinion by indicating “[i]insurance companies evaluate claims as part of their business, and their claims evaluations often result in demands from policyholders and then litigation. In discovery, that reality poses a challenge: “litigants (and then judges) must decide when an insurance company created a claim evaluation document in the course of its business and when it did so in anticipation of litigation. The first category of documents is discoverable, but the latter is work product that Federal Rule of Civil Procedure 26(b) protects.”

Judge Wolson noted that the work product doctrine, which is codified under Federal Rule of Civil Procedure 26(b)(3) protects materials prepared in anticipation of litigation from discovery unless certain exceptions apply. The court noted that the work product immunity shelters an attorney’s mental processes, providing a privileged area for the attorney to analyze and prepare his client’s case.

The court also noted that a party claiming work product protection bears the burden of showing that the materials in question were prepared in the course of preparation for possible litigation.

The court reiterated that, because insurance companies evaluate claims made by their insureds in the ordinary course of their business, and outside of any possible litigation in the future, discovery disputes involving insurance company claims file often present problems for the parties in the court.

As noted, under the circumstances presented in this case, Judge Wolson found that claim evaluation documentation prepared by the carrier did not amount to a document that was prepared in preparation for litigation.  The Judge found, after an in camera review, that the document, in the Judge's eyes, revealed claims handling matters and not litigation analysis.  As such, the Plaintiff's Motion to Compel was granted.  

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


Source: “The Legal Intelligencer Federal Case Alert.” www.Law.com (Jan. 9, 2025).

Upcoming Rule Change (Effective April 1, 2025) Mandates that Trial Court Judges Sit in on Jury Selection

No More Leaving Jurors Alone with the Attorneys (unless agreed)

On January 7, 2025, the Pennsylvania Supreme Court approved a change to the Pennsylvania Rules of Civil Procedure to include a mandate that a trial court judge be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement. This rule is set to take effect on April 1, 2025 and can be found under Pa. R.C.P. 220.3.

A copy of the changes to the Rule can be seen at this LINK.

Source: Article – “Phila. Court System Pushed To Adapt As Justices Greenlight Changes to Pa.’s Civil Jury Selection Rules” By: Aleeza Furman of the Pennsylvania Law Weekly (Jan. 8, 2025).

Court Rejects Defense Contention that Bad Faith Conduct on Part of Plaintiff Prevented a Timely Removal to Federal Court

In the case of Gainer v. Bordertown Transp., Inc., No. 2:24-CV-01296-KNS (E.D. Pa. Dec. 2, 2024 Scott, J.), the Federal Eastern District Court granted a Plaintiff’s Motion for a Remand of a personal injury litigation to state court where the federal court found that the Plaintiff’s litigation conduct while the case was at the state court trial level, which case handling ended up with the removal request being facially untimely, did not evidence bad faith on the part of the Plaintiff.

According to the Opinion, the case involved a Plaintiff who was injured while she was standing behind the wheel of a truck that was hit by the Defendant’s vehicle. The Plaintiffs sued the Defendant tortfeasor and also sued PennDOT.

However, after over a year of discovery and pre-trial litigation that resulted in the dismissal of PennDOT from the action, the remaining Defendants then removed the case to federal court.

The Plaintiff then filed the present Motion for Remand. The Defendants opposed the motion on the grounds that the Plaintiff had acted in bad faith to prevent the removal in the first place.

According to the Opinion, there is a dearth of case law in the Third Circuit regarding the definition of bad faith in this context.

The court noted that bad faith under the removal statute, 28 U.S.C. §1446(c)(1) means “intentional conduct on behalf of the Plaintiff which denies the Defendant the opportunity to remove the case to federal court.”  The court noted that bad faith can be demonstrated through circumstantial evidence.
The court also noted that, when completing the analysis of allegations of bad faith in this case, a court must look at all available evidence to determine whether the Plaintiff engaged in intentional conduct to deny the Defendant the chance for removal. 

In this case, the Defendants were alleging that, although PennDOT was in the case in the state court matter, the Plaintiff did not move forward in terms of any efforts to enter a default judgment against PennDOT, move to strike PennDOT’s untimely Answer to the Complaint, or otherwise move to compel PennDOT to comply with discovery requests. The defense also noted that the Plaintiff dismissed PennDOT from the suit a little over two months after the expiration of the one year removal deadline. The defense additionally indicated that the Plaintiff made no effort to settle with PennDOT before dismissing PennDOT from the case and did not otherwise have the Plaintiff’s expert witness attempt to establish liability against PennDOT in any expert report.

The Plaintiff responded by indicating that many of the decisions relative to the Plaintiff’s litigation conduct were based on practice customs in the Philadelphia County Court, were based upon strategy, and were not based on any motivation to thwart the Defendants’ removal rights. The Plaintiff contended that motions for a default judgment, or to strike an untimely answer to a Complaint or to compel discovery would not have functionally improved the Plaintiff’s position in the litigation because Plaintiff’s counsel had allegedly never seen any of these types of motions successfully granted in the Philadelphia County Court of Common Pleas.

The Plaintiffs also noted that they chose not to dismiss PennDOT from the suit previously, jointly with the Defendants, because the Plaintiffs felt that the individual tortfeasor Defendants bore the vast majority of the liability. Moreover, the Plaintiffs had a strategy of attempting to gut the Defendants’ likely joint tortfeasor arguments at trial.

The Plaintiffs also noted that they waited until the date they did to dismiss PennDOT from the suit because they were waiting to fully assess the Defendants’ expert report, which report was dated three days after the one year removal deadline expired. The Plaintiff noted that it was determined within the Plaintiff’s strategy that it would be best to remove PennDOT from the case to instead focus the liability arguments against the individual Defendants, particularly where the Defendants remaining in the case had already admitted liability but PennDOT did not. As such, Plaintiff’s counsel noted that it would be an easier, cleaner, and cheaper trial without PennDOT because the Plaintiff would not have to establish PennDOT’s liability at any trial if PennDOT was dismissed from the case.

With regard to the argument that the Plaintiff did not try to seek out settlement with PennDOT prior to dismissing PennDOT, Plaintiff’s counsel explained to the court that there were settlement conversations with PennDOT but that they were not successful.

Based upon the above, as well as additional factors noted in the Opinion, the court held that the individual Defendants in this case had not met their heavy burden of demonstrating bad faith on the part of the Plaintiff. Rather, the Plaintiff was found to have offered plausible strategic arguments in explanations of the Plaintiff’s strategic decisions. Accordingly, the court did not find that the Plaintiff engaged in any intentional conduct to deny the Defendants the opportunity to move the case to federal court.

While the court noted, in this case, that the issue of whether Plaintiff’s counsel’s strategic decisions were the best course of action was irrelevant to the court’s consideration, the court did also note that, in other cases, the court is permitted to call into question the sincerity of the Plaintiff’s “strategic decisions” and to make a finding of bad faith. However, such was not the case in this matter.

In the end, the court granted Plaintiff’s Motion to Remand the case to the Philadelphia County Court of Common Pleas.

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


Source: “The Legal Intelligencer Federal Case Alert,” www.Law.com (Jan. 2, 2025).

Superior Court Reaffirms The Law on Limitations To Scope of Expert Opinions By Treating Physicians

In the case of Kunkel v. Abington Memorial Hospital, No. 2024 Pa. Super. 298 (Pa. Super. Dec. 13, 2024 Stabile, J., Lane, J., and Lazarus, J.) (Op. by Stabile, J.) (Lazarus, J., concurring in the result), the Pennsylvania Superior Court addressed various issues regarding expert testimony in a medical malpractice case.

On one issue, the court confirmed that it was not an abuse of discretion by the trial court to exclude one of the Plaintiff’s identified expert witnesses as cumulative. The court generally noted that cumulative evidence is additional evidence that supports a fact already established by other evidence in the case.

On another issue of note, the Pennsylvania Superior Court reaffirms the well-settled rule that, while treating physicians may testify as experts without being identified under Pa. R.C.P. 4003.5(a), such doctors are limited to opinions formed in the course of their treatment, not opinions developed in anticipation of litigation.

Here, the court found that the causation opinions of two (2) of the Plaintiff’s treating physicians were properly excluded by the trial court because those physicians only formed their opinions on causation in preparation for this litigation.

The court noted that its review of the medical records from those physicians did not contain any hint of any such opinions on causation. The Superior Court agreed that the exclusion of those opinions on causation were required by the Plaintiff’s failure to identify those experts as expert witnesses for trial during the course of discovery as required by the Rules of Civil Procedure.

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