A Dead End: Paved Pathway in Park is Not a Street Under the Streets Exception to Governmental Immunity

In the case of Gabra v. Borough of Prospect Park, No. 1343 C.D. 2024 (Pa. Cmwlth. June 18, 2026 Covey, J., Tsia, J., and Leavitt, S.J.) (Op. by Covey, J.), the Pennsylvania Commonwealth Court addressed the issue of whether a pathway in a park fell within the Streets Exception to governmental immunity under the Political Subdivision Tort Claims Act.

According to the Opinion, the Plaintiffs filed a negligence Complaint after the Plaintiff’s decedent was struck and killed by a vehicle driven on a pathway in a park. According to the Opinion, the driver of the vehicle purposely drove his truck off of a roadway and into a park.  The road in question ended at a small, paved parking area and then narrowed significantly into a paved asphalt pathway leading to a pavilion and baseball fields.

It was additionally noted that the roadway had “No Outlet” and “No Parking This Side of the Street” signs in the area.

The accident occurred just after the end of the pathway and past the pavilion.

The Plaintiff’s Complaint invoked the Real Property, Utility Service, Streets, and Sidewalks Exceptions to governmental immunity afforded under the Act. Earlier in the litigation, the Real Property and Utility Service Exceptions theories of liability were stricken but the Streets and the Sidewalk theories were allowed to proceed.

On appeal, the appellate court addressed the issue of whether the paved pathway within the park could meet the definition of a street under the Streets Exception. 

In part, the court noted that the pathway was significantly narrower than the roadway that led to it. No evidence was presented by the Plaintiff that the pathway was wider than an alley or lane. 

There was additionally no evidence that the pathway afforded an exit at each end of the pathway   It was noted that the pathway ended just beyond the pavilion in the park. 

Nor was any evidence presented that the pathway was used for travel as a street or that the pathway connected one street to another.  Also, no evidence was presented by the Plaintiff to show that the pathway had been legally laid out or opened as a street.

The court otherwise noted that borough ordinances prohibited vehicular traffic in parks without permission. 

Other testimony showed that the pathway’s primary purpose was for use by employees of the borough and for short-term vehicle loading and unloading by youth clubs. As such, the court noted that the pathway was more akin to a driveway.

After a review of the facts against the applicable law, the Commonwealth Court held that, because the Plaintiffs had failed to establish that the pathway was a street, the court further held that the concrete base around the pavilion could not be deemed to be a sidewalk “within the rights-of-way of streets owned by the local agency” under 42 Pa. C.S.A. §8542(b)(7). 

Accordingly, the appellate court reversed the portions of the trial court Order denying summary judgment relative to the applicability of the Streets and Sidewalk Exceptions to governmental immunity.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (Jul 7, 2026).

Source of image:  Photo by Azgan Mjeshtri on www.unsplash.com.

PA. Supreme Court Rules That Liability Carriers Are Not Automatically Protected From Having To Provide Coverage in Sex Trafficking Cases

In the case of Samsung Fire and Marina v. R.I. Settlement Trust, No. 61 EAP 2024 (Pa. July 21, 2026) (Op. by Donohue, J.)(Wecht, J., Concurring), the Pennsylvania Supreme Court issued an opinion responding to questions presented by a way of a Petition for Certification filed by the United States Court of Appeals for the Third Circuit relative to the ability of insurance carriers to block its insured hotels from receiving from insurance coverage if they are sued over allegations that they allegedly turned a blind eye to sex trafficking activities on hotel premises.

In a unanimous decision, the Pennsylvania Supreme Court rejected efforts by insurance carriers to deny coverage in this regard. The Court held that the fact that Pennsylvania criminalizes sex trafficking activities through its criminal laws does not mean that hotels that profited from the conduct should automatically be barred from seeking insurance coverage for lawsuits that arise out of that conduct.

In so ruling, the Supreme Court reviewed the interplay between the public policy of interpreting insurance contracts broadly to favor coverage, and the policy against requiring carriers to provide coverage when the conduct at issue is so repugnant to society that the provision of insurance coverage for such acts would violate other overriding public policy.

The Court noted that, where Pennsylvania's Human Trafficking Law does not address the issues presented regarding the availability of insurance coverage, the parties should instead look to the insurance contract to resolve any cover disputes.

Accordingly, the Pennsylvania Supreme Court held that “neither an insurer’s duty to defend nor its duty to identify is abrogated on the basis of public policy when the insured is alleged to have enabled or profited from sex trafficking.”

Anyone wishing to review a copy of this decision may click this LINK.  The Concurring Opinion by Justice Wecht can be viewed HERE.

Source: “Pa. Supreme Court Removes Insurance Hurdle For Sex Trafficking Survivors Seeking Coverage Stemming From Abuse," by Max Mitchell of The Legal Intelligencer (July 21, 2026).

Carrier Prevails on Declaratory Judgment Action Regarding Validity of Rejection of UIM Coverage By Insured

In the case of Huggins v. Progressive Adv. Ins. Co., No. 965 MDA 2025 (Pa. Super. June 18, 2026 Bowes, J., Dubow, J., and Neuman, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court affirmed a trial court’s dismissal of a Plaintiff’s declaratory judgment action against Progressive in which the Plaintiff had sought UIM benefits.

According to the Opinion, the Plaintiff had a single policy with Progressive Insurance which was a motorcycle insurance policy. The Plaintiff had electronically executed the policy and signed a letter rejecting UIM protection.

After the Plaintiff was involved in a motor vehicle accident while operating his motorcycle, he settled the third party claim against the tortfeasor. He then pursued a UIM claim under his motorcycle policy with Progressive. That claim was denied by Progressive based upon the fact that the Plaintiff had previously signed a letter rejecting UIM coverage.

The Plaintiff filed a declaratory judgment action, asserting an entitlement to UIM coverage. According to the Plaintiff, the rejection was invalid because the form he executed did not include the associated policy number.  The Plaintiff made this argument even though he only had one policy with Progressive.

As noted above, the trial court had ruled in favor of the insurance company. The trial court determined that there was no question that the UIM rejection form pertained to the only policy that the Plaintiff had with Progressive. The trial court found that the Plaintiff had declined UIM coverage in accordance with the provisions set forth in 75 Pa. C.S.A. §1731 of the Motor Vehicle Financial Responsibility Law. The trial court therefore granted summary judgment in favor of Progressive and dismissed the Plaintiff’s Complaint with prejudice.

As noted, on appeal, the Superior Court affirmed.

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


I send thanks to Attorney David Friedman of the King of Prussia office of Forry Ullman for bringing this case to my attention.

Source of image:  Photo by Valentin Sarte on www.pexels.com.

Trial Court Finds No Bad Faith in Carrier's Handling of Regular Use Exclusion Dispute in UIM Case

In the case of Erie Insurance Exchange v. Hallam, No. 2021-CV-7526 (C.P. Wash. Co. June 24, 2026 Lucas, J.), the court granted the carrier’s Motion for Summary Judgment on the Plaintiff’s bad faith claim relative to the regular use exclusion.

At the time of the accident, the Plaintiff was injured while in an accident while driving a salt truck for his employer.  In addition to other recoveries, the Plaintiff sought to recover UIM benefits under an Erie Insurance policy that covered one of his personal vehicles at home.

According to the Opinion, the insurance company commenced this action seeking to enforce the “regular use” exclusion found in its personal automobile insurance policy issued to the Defendant. Erie asserted that the Plaintiff had regular access to a work vehicle,i.e. a vehicle that was not covered under the Erie policy.  The Plaintiff was allegedly injured while driving that work vehicle. As such, Erie was seeking a ruling that it did not have to pay UIM benefits to the insured.

The insured argued that, at the time he made a claim for his personal UIM benefits, Erie knew that its interpretation of its “regular use” exclusion had been rejected by the Pennsylvania Superior Court. More specifically, the Plaintiff argued that, as of that time, the Superior Court had determined in the case of Rush v. Erie Insurance Exchange that Erie’s “regular use” exclusion was invalid and therefore, unenforceable.

The insured otherwise argued that, in any event, he was not regularly using the work vehicle that he was injured in. Rather, he asserted that the use of the work vehicle was incidental. 

As such, the insured asserted a breach of contract a statutory bad faith claim against the carrier in a counterclaim. In response, Erie filed a summary judgment motion.

Erie argued that, further up the appellate ladder, the Pennsylvania Supreme Court had more recently ruled in Rush v. Erie Insurance Exchange that the regular use exclusion was still valid in at least certain circumstances, which circumstances applied in this case.

Erie argued that there can be no bad faith where the carrier correctly applies a policy exclusion.  Erie asserted that, despite conflicting decisions in recent years on the validity of the regular use exclusion, Erie argued that it had reasonably relied upon existing legal precedent on the regular use exclusion to deny UIM benefits to the insured.

The Plaintiff countered by arguing that, at the time Erie denied coverage, the law was that the exclusion was “invalid.” The Plaintiff asserts that Erie had no good faith basis to disregard the Superior Court’s ruling and to deny coverage when it did so in this matter.

In this decision, the trial court noted that, in order to show bad faith on the part of an insurance company, an insured must show that the carrier breached its duty of good faith through some motive of self-interest or ill-will. The court also noted that bad faith must be shown by clear and convincing evidence. The insured must additionally show that the carrier did not have a reasonable basis for denying benefits under the policy, and that the carrier knew or recklessly disregarded its lack of a reasonable basis in denying the claim.

The trial court in this case noted that the carrier had remained in regular communication with the insured regarding the status of the claim. It was also noted that the carrier had informed the insured’s attorney that Erie was requesting a reconsideration of the Rush decision. In light of this, Erie requested that no further action be taken until a decision was made on that request by the appellate courts.

The court also noted that the insured in this case did not go so far as to argue that Erie lacked a bona fide belief that it had a good chance of ultimately succeeding in having the Pennsylvania Supreme Court declare that the “regular use” exclusion was valid under Pennsylvania law.

The court emphasized that, in this case, the insured did not offer any evidence to demonstrate that Erie’s manner in handling the claim was anything other than an attempt to enforce a written exclusion in the contract. 

The court went on to find that, where an insurer has no duty to provide coverage, there can be no bad faith. 

Here, the insured argued that Erie failed to take enough steps to limit the enforceability of the Superior Court decision in Rush while the Supreme Court of Pennsylvania considered whether or not to accept the case for review and then decide the case.  In essence, the insured argued that Erie should have paid him UIM benefits even though Erie had otherwise appealed the Superior Court decision in Rush to the Pennsylvania Supreme Court.

The trial court in this matter found that this fact, alone, did not amount to potentially clear and convincing evidence of a dishonest purpose, a lack of a reasonable basis to deny benefits, or a knowing or reckless disregard of a reasonable basis to deny coverage on the part of the carrier.

The trial court also noted that the Pennsylvania Supreme Court decision in Rush made clear that the Superior Court decision in Rush deviated from well-established precedent that had continually upheld the validity of the regular use exclusion.

Accordingly, the trial court in this case found that the insured did not produce evidence to establish any bad faith on the part of the carrier. As such, Erie’s Motion for Summary Judgment was granted and the Plaintiff’s bad faith clam was dismissed.

Anyone wishing to review a copy of this decision 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 interesting case to my attention.

Source of image:  Photo by Jay Brand at www.pexels.com.

Trial Court Requests Affirmance of its Order Transferring Venue of a Nursing Home Negligence Case Out of Philadelphia and to Delaware County

In the case of Bennett v. Providence Operator, LLC, No. June Term, 2024, No. 240603252 (C.P. Phila. Co. March 4, 2026 Cohen, J.), the trial court judge issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s finding that venue was improper in this nursing home malpractice case filed in Philadelphia County. The trial court had transferred the case to Delaware County after finding that all relevant conduct occurred at the Defendant’s facility that was located in Delaware County. The court noted that the Defendant only had incidental marketing contacts with Philadelphia County.

As such, the trial court had granted the Defendant’s Preliminary Objections as to improper venue.

The court otherwise emphasized that advertising and solicitation do not constitute conducting business. 

The court additionally noted that any revenue generated from Philadelphia residents at the Defendant’s facility was incidental to the care provided in Delaware County.

The trial court additionally rejected the argument that venue was proper in Philadelphia County given that the pre-admission assessment was conducted while the Plaintiff’s decedent was hospitalized in Philadelphia. The court rejected the argument that this constituted a transaction giving rise to the cause of action. 

Rather, the court found that the claims instead of arose from the care provided at the Defendant’s facility and not from the admission decision itself. In this case, the claims of injury were with respect to a fall down event that the Plaintiff decedent allegedly had at the facility in Delaware County.

As such, the trial court found that all relevant transactions and occurrences took place in Delaware County, where the alleged negligence occurred. 

Accordingly, the trial court urged the Superior Court to affirm the trial court’s finding that venue in Philadelphia County was improper and that the Order transferring the case to Delaware County should be affirmed.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (July 2, 2026).

Trial Court Addresses Protections Afforded by Mental Health Procedures Act Relative to Mental Health Records in Discovery

In the case of Morreck v. Karns, No. 2025-CV-1140 (C.P. Lacka. Co. June 12, 2026 Minora, S.J.), the court addressed discovery issues in a motor vehicle accident case.

According to the court’s decision, the Plaintiff alleged physical injuries as a result of a motor vehicle accident but confirmed that she was not alleging any independent psychological injury as a result of the accident.

At issue in this matter was the Plaintiff’s objection to the Defendant’s subpoenas for medical records.   In the subpoenas, the Defendant specifically excluded from production any records concerning mental health or psychiatric treatment from either before or after the subject accident.

The Plaintiff objected to the subpoenas, raising concerns of a possible unintended release of information protected by privileges afforded by the Mental Health Protections Act, 50 Pa. C.S.A. §7111.

Senior Judge Carmen Minora
Lackawanna County

In his decision, Senior Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas confirmed that mental health records were indeed privilege under the MHPA. 

However, the court noted that a patient can waive the confidentiality protections under the MHPA where, as judged by an objective standard, the Plaintiff knew or reasonably should have known that the Plaintiff’s mental health would be placed directly at issue by the filing of a lawsuit.

However, here, where the Plaintiff had not placed her mental health at issue, the court found that the Plaintiff had not waived any confidentiality protections under the MHPA. 

As such, the court precluded discovery on any mental health treatment records and allowed discovery only of materials that were not protected under the privileges afforded under the MHPA.

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


I send thanks to Attorney Joshua J. Perry of the O’Donnell Law Offices in Kingston, PA for bringing this case to my attention.

The Beginning of the End? Pennsylvania Supreme Court Agrees to Address Whether the Gist of the Action Doctrine Remains Valid Law

According to a July 14, 2026 article by Riley Brennan in The Legal Intelligencer entitled "Pa. High Court to Revisit 'Gist of the Action' Doctrine for Legal Malpractice Cases, the Pennsylvania Supreme Court has agreed to address the ongoing validity of the doctrine in the case of Poteat v. Asteak.

Pennsylvania Supreme Court

As Tort Talkers may recall, my son, Daniel, Jr. (now about to enter his third year at Virginia Law where he is an Articles Editor on the Virginia Law Review) and I recently published a timely article in the April, 2026 edition of the Pennsylvania Bar Association Quarterly entitled "The Rise and Fall of the Gist of the Action Doctrine," in which the history of the doctrine was analyzed and and predictions were made regarding possible further developments in the law with respect to the doctrine.

We again thank Professor Emeritus Robert E. Rains of the Dickinson School of Law and Editor of the Quarterly for selecting this article for publication and for his excellent editorial assistance.

Here is the prediction from the end of the article with regards to the future of the gist of the action doctrine:

Thus, Swatt and Poteat appear to herald the beginning of the end of the gist of the action doctrine as a defense in Pennsylvania civil litigation matters. If and when the Pennsylvania Supreme Court has another opportunity to consider the validity of the gist of the action doctrine, it can be reasonably anticipated that the Supreme Court will finally swat the remaining mist of this doctrine into oblivion as contrary to the Pennsylvania Rules of Civil Procedure. Moreover, most of the current Justices on the Pennsylvania Supreme Court will also likely see the purpose of the gist of the action doctrine in maintaining the conceptual differences between tort and contract actions as less important than allowing injured parties to explore all potential theories of recovery available under the law.

With the anticipated downfall of the gist of the action doctrine, negligence and breach of contract will no longer be viewed as causes of action encompassing different types of wrongs that have to be kept apart. Rather, these types of claims will be viewed as parts of a menu of numerous options from which plaintiffs may select when deciding how to proceed with a lawsuit, including the option of proceeding with both types of claims in a single lawsuit. The anticipated total eradication of the defense of the gist of the action doctrine will therefore serve to expand the avenues of recovery for injured parties in Pennsylvania. However, until such time that the Pennsylvania Supreme Court again addresses the viability of the gist of the action doctrine and provides clarity and guidance, the courts and members of the bar will be left to grapple with implications of the Superior Court’s recent decisions on the doctrine.

To view the entire article, please click this LINK to the Tort Talk post on the article and then click the Link within that post to view the article.