Court Quashes Subpoena For Records As Too Broad in Scope

In the case of The Cincinnati Ins. Co. v. K&K Fire Protection Enterprises, Inc., No. 6060-CV-2021 (C.P. Monroe. Co. Nov. 20, 2024 C. Daniel Higgins, Jr., J.), the court laid out the law pertinent to a Motion to Quash a Subpoena and related Motions for Protective Orders on records sought by subpoenas.

This case arose out of a fire loss. The Plaintiff claimed that inadequate maintenance by the Defendant was the cause of the fire. 

At issue before the court was a subpoena that the Defendant had issued to another entity seeking maintenance records related to the fire protection systems on the premises.

The entity that was subpoenaed asserted that the records in question no longer existed.

The court denied that entity’s Motion to Quash the subpoena and for a Protective Order as to those records. The court noted that it expected an affidavit from that entity to confirm, under oath, that the records requested no longer existed.

The subpoena at issue also sought additional other records that the court found were not relevant to the claims against the Defendant. The court found that the subpoena requests for those other records were too broad in scope.  As such, the court quashed the subpoena for those records after find that the subpoenas submitted to the entity that was requested to produce the records amounted to unreasonable annoyance embarrassment oppression, burden, or expense.

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


Source: The Legal Intelligencer Common Pleas Case Alert. (Jan. 8, 2025).

Superior Court Affirms Trial Court's Finding that No Coverage Existed Related to a COVID-19 Shutdown of a Business

In a non-precedential decision issued by the Pennsylvania Superior Court in the case of The Scranton Club v. Tuscarora Wayne Mut. Group, No. 238 MDA 2021 (Pa. Super. Jan. 27, 2025 Panella, P.J., Olson, J., and Kunselman, J.) (Op. by Kunselman, J.), the Superior Court affirmed the trial court’s dismissal of all claims filed by The Scranton Club and found that no coverage existed to the COVID shut down of the Plaintiff’s business.  

The affirmed trial court Opinion was written by Judge Terrence R. Nealon of the Lackwanna County Court of Common Pleas.  The Tort Talk Blog post on Judge Nealon's Opinion, which contains a link to that decision can be found at this LINK.

In this case, the Superior Court followed the precedent set forth in the recent Pennsylvania Supreme Court decision on similar issues in the case of Ungarean v. CNA & Valley Forge Ins. Co., 323 A.3d 593 (Pa. 2024).

The Superior Court in this case found that the trial court properly ruled that The Scranton Club did not allege any facts to establish that it incurred a “direct physical loss of or damage to property” as required to establish coverage under the policy. The court noted that, given that there was nothing that required restoration of The Scranton Club’s property as a result of the COVID shut down, there is no coverage to be provided under the insurance policy at issue.

The Superior Court noted that it also continued to affirm the trial court’s decision to dismiss the Plaintiff’s claims for civil authority coverage. The court noted that, to assert a claim for the civil authority coverage under the policy at issue, the civil authority action prohibiting access to the premises must have been in response to “damage” caused to another property. Given that there is no evidence of any damage to any neighboring properties which resulted in the Plaintiff’s property being shut down, the Superior Court held that the trial court was correct to deny coverage on this ground as well.

Lastly, the Superior Court noted that it was now affirming the trial court’s dismissal of the claim for bad faith given that coverage was not otherwise available under the policy at issue.


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

Vehicle Damages Photos From Accident Were Not Authenticated and, Therefore, Not Allowed

In the case of Moore v. Nordland, June Term, 2020, No. 01679 (C.P. Phila. Co. Nov. 19, 2024 Turner, J.), the court issued a Rule 1925 Opinion asking the Superior Court to affirm the trial court Order denying the Defendant’s Motion for Post-Trial Relief following a motor vehicle accident.

A primary issue in this case raised by the Plaintiff was whether the court erred in precluding photographs of the vehicle that were involved in the accident.

According to the Opinion, during cross-examination, both Plaintiffs confirmed that they could not recall or remember if the photographs of the vehicles presented to them fairly and accurately depicted the condition of the vehicles following the accident. Accordingly, the court found that, based upon the testimony of the Plaintiff, the Defendant was unable to authenticate the photographs.

During the direct examination of the Defendant, defense counsel again attempted to authenticate the photographs. However, when asked whether the photographs depicted the way to the Plaintiff’s vehicle following the accident, the Defendant testified, “Yes, I mean, there’s nothing different from what I’m seeing in these pictures compared to what I saw there on Cheltenham Avenue,” where the accident happened. The Defendant also testified that the photograph of the Plaintiffs’ vehicle “looks like the exact same vehicle that I was in the accident with that afternoon–evening.”

The trial court judge wrote in her Opinion that the Defendant failed to testify that the photographs fairly and accurately depicted the vehicles following the accident. Rather, the Defendant only testified that the vehicle in the photograph was the same vehicle he was in the accident with. The court noted that the Defendant was unable to confirm that the photographs fairly and accurately depicted the damage, or lack of damage, to the vehicles following the accident.

Based upon the testimony of all of the parties, the court found that the photographs were not properly authenticated and, as such, did not allow the Defendant to admit the photographs into evidence or to publish them to the jury.

In so ruling, the court cited to “Pa. R.E. 901(a), which pertains to authentication of evidence. The court additionally cited to the case of Com. v. Loughnane, 128 A.2d 806, 814 (Pa. 2015), for the proposition that a photograph “may be authenticated by testimony from a person who has sufficient knowledge that the photograph fairly and accurately reflects what the proponent is purporting the photograph to reflect.” 

Here, the court noted that, while photographs of vehicles were certainly relevant, and may be admissible, in this case, the Defendant failed to properly authenticate the photographs. The court additionally noted that, “most importantly,” there was no testimony as to who took the photographs, when the photographs were taken, and whether any repair work had been done to the cars following the accident but before the photos were taken.

Also of note with regards to this decision, the court found that the Plaintiffs’ testimony regarding the accident, their injuries, and the residual impact of the injuries on the injured Plaintiff’s life, along with the Plaintiff’s expert testimony, provided the jury with sufficient testimony and evidence to make a determination as to whether or not the limited tort Plaintiffs’ injuries were “serious” such that the pierced the limited tort threshold.

Here, there is evidence that the Plaintiffs sustained soft tissue injuries to her cervical, thoracic, and lumbar spine regions along with disc protrusions and herniations in her neck and mid-back and low back. The court also noted that the Plaintiffs testified in detail as how the injuries impacted their everyday lives.

Accordingly, the trial court requested the appellate court to affirm the trial court’s denial of the Defendants’ Motion for Post-Trial Relief in this regard.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 16, 2025).

Source of image:  Photo by Victor Moragriega on www.pexels.com.

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Trial Court Judge Creates a Remedy for a Bad Limited Tort Election Form

In what appears to be the first decision of its kind, in the case of Thomas v. Nguyen, No. 231003324 (C.P. Phila. Co. Jan. 30, 2025 Padova, J.), the court agreed with a Limited Tort Plaintiff that a tort election form provided by the carrier was defective and that, therefore, the Plaintiff should have the remedy of being deemed to be a Full Tort Plaintiff instead.

In this case, the Plaintiff argued that a Liberty Mutual Insurance standard Tort Election Form that Liberty Mutual had secured from the Plaintiff and which purported to indicate that the Plaintiff had knowingly elected the Limited Tort option, was defective. The Plaintiff argued that the form was defective in that it deviated, in several areas, from the language required by 75 Pa. C.S.A. §1705(a) for such tort election forms.

The trial court judge agreed with the Plaintiff and found not only that the tort election form was defective, but that its defective nature rendered the form invalid, which therefore rendered the Plaintiff a Full Tort Plaintiff.

The court rejected the defense argument that the statute at issue did not provide for any remedy for instances in which a tort election form is different from the language required by the statute.

As stated, the court in this case found that the discrepancies were sufficient in quantity and quality to allow the court to rule that the Plaintiff in this case should be deemed to be a Full Tort Plaintiff. The trial court stated that, here, the Plaintiff was not making a free and informed choice as to the tort election where the carrier’s form did not include alll of the required statutory language, most crucially when describing the parameters of the Limited Tort option to a customer purchasing automobile insurance.

The court stated that the statute at issue, 75 Pa. C.S.A. §1705(a)(3), is clear that, when no tort election is made the insured is presumed to have chosen the Full Tort option. Here, the court found that, given that the Plaintiff had signed a Limited Tort option form without being accurately informed as to the meaning of a limited tort election by way statutorily prescribed language, the Plaintiff effectively made no valid tort election under the statute.

The court rejected the defense argument that the deviations from the statutory language were de minimus. 

The court also noted that, if an insurance company was permitted to deviate from the language required by the language when describing the tort options, and still have the insured’s subsequent choice constitute a valid tort election form, then the statutory provisions §1705 would have no effect.

As such, the court granted the Plaintiff’s Motion for Summary Judgment and provided the remedy not found in the statute that, where the language of the tort election form so substantially deviates from the statutorily required language for such forms, an insured customer of the insurance company should be deemed to be covered by the Full Tort option even though the Limited Tort Option was selected on the form.

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

I send thanks to Attorney John H. Aitchison, of the law office of Steven L. Chung, in Philadelphia for bringing this case to my attention.

Source of image:  Photo by Cytonn Photography from www.pexels.com.

Court Finds Nursing Home Arbitration Agreement to be Unconscionable and, Therefore, Unenforceable

In the case of Harrington v. Kramer, No. 2024-CV-774 (C.P. Luz. Co. Jan. 14, 2025 Gelb, J.), Judge Lesa Gelb of the Luzerne County Court of Common Pleas found that the terms of a nursing home Arbitration Agreement was unconscionable and, therefore, unenforceable.

The court also denied Preliminary Objections filed by the Defendants against the punitive damages claims. The court noted that these punitive damages issues could be revisited during the Motion for Summary Judgment stage.

According to the Opinion, the Plaintiff filed claims for vicarious and direct corporate liability against nursing home Defendants in which the Plaintiff’s decedent resided. The Plaintiffs alleged that the decedent sustained injuries while staying at the Defendant’s premises from which the decedent eventually passed away.

A central issue in the case relative to the arguments addressed in this decision were whether the Plaintiff decedent had sufficient cognitive function and understanding to properly agree to the admission paperwork, which included an Arbitration Agreement. 

There was evidence that the decedent was on medications on her arrival to the nursing home and also that she was forgetful and had a short attention span. The court noted that the nursing home’s admission paperwork at that time was over seventy-five (75) pages in length and the Arbitration Agreement was the second to last document in the packet.

It was additionally alleged that the nursing home did not have any written policies about what the Director of Admissions should do in order to prepare for initial meetings with incoming residents, in part, in terms of determining if a person is competent to sign an arbitration agreement.

Judge Lesa Gelb
Luzerne County

Judge Gelb provided a thorough review of Pennsylvania law regarding the validity and enforceability of arbitration agreements in this context. The court noted that, although Pennsylvania and federal law impose a strong public policy in favor of enforcing arbitration agreements, the enforcement of such an agreement to arbitrate can be denied by a court where the party opposing arbitration proves a contract defense that invalidates the agreement to arbitrate. One such defense to an allegation that a valid arbitration agreement has been entered into is the defense of unconscionability.

The court noted that, to invalidate enforcement of a contract based upon unconscionability, the party challenging the contract must show both an absence of a meaningful choice, referred to as procedural unconscionability and contract terms that are unreasonably favorable to the other party, which is known as substantiative unconscionability. The court noted that these tests are assessed under a sliding-scale approach, with a lesser degree of substantiative unconscionability required where the procedural unconscionability is very high.

Applying the law to the facts of this case, the court found that the Arbitration Agreement at issue was unconscionable and, therefore, unenforceable. The court found that the Arbitration Agreement at issue was equally and procedurally substantively unconscionable.

The court noted that it found that the Plaintiff decedent did not have the legal capacity to sign the Arbitration Agreement based upon the medications that she was prescribed, the notes from the nursing staff as to the decedent’s cognition, and the other circumstances surrounding the agreement. The court also found the agreement itself to be substantively unconscionable because it imposed additional costs on the decedent and her representatives that they would not have in a court of law. The court also found that the Arbitration Agreement favored the nursing home in that it permitted the nursing home to pursue the decedent and/or her representatives for non-payment outside of arbitration.

Due to the above issues, the court held that the Arbitration Agreement was not binding.

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


I send thanks to Attorney Thomas F. Foley, III of the Foley Law Firm in Scranton for bringing this case to my attention.