Judge Nealon of Lackawanna County Rules in Favor of Consolidation of Post-Koken UIM and Third Party Claims

Lackawanna County Courthouse

On the heels of Lackawanna County Judge Mark Powell's decision in favor of the consolidation of claims in Post-Koken automobile accident cases that was summarized in yeasterday's Tort Talk Blog post comes the decision of Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Bello v. Smith and Progressive Ins. Co., No. 2024-CV-6105 (C.P. Lacka. Co. March 6, 2026 Nealon, J.).

In Bello, Judge Nealon addressed Preliminary Objections filed by a UIM carrier in a post-Koken matter involving combined third party claims against a tortfeasor and UIM claims against the Plaintiff’s own insurance carrier. This case also involved the additional fact that the tortfeasor Defendant was allegedly operating his vehicle under the influence at the time of the accident.

The UIM carrier filed Preliminary Objections under Pa. R.C.P. 1028(a)(5) asserting the “misjoinder of a cause of action,” and arguing that the tort and UIM claims should be severed for pre-trial and trial purposes.

Here, Judge Terrence R. Nealon, of the Lackawanna County Court of Common Pleas reviewed the current status of Pennsylvania law on issue of the joinder of third party tortfeasor claims and UIM claims under a single caption, much of which prior case law was developed through his own judicial Opinions, to come to conclusion that the Preliminary Objections should be denied and the cases allowed to proceed, at least through the pleadings and discovery phases, in a consolidated basis.

Of note, the Court also referenced, on multiple occasions, the Pennsylvania Bar Quarterly article written by Daniel E. Cummins entitled "Hurricane Koken Rages On:  Uncertainty Continues in Motor Vehicle Accident Litigation In The Stormy Post-Koken Era," 90 Pa. B.A.Q., 108, 111 & n. 15-19 (July 2019). 

Judge Terrence R. Nealon
Lackawanna County 

In support of this decision, Judge Nealon noted that the damages that might be recoverable both the tortfeasor and the UIM carrier present common questions of law and fact and involve the same evidence and issues.

One additional issue involved in this matter was the fact that there were claims for punitive damages asserted against the tortfeasor Defendant due to the DUI allegations and other allegations.  The court acknowledged would be irrelevant to the compensatory damages determination given that the UIM coverage barred the recovery of any punitive damages under that policy.

Relative to the allegations that the tortfeasor Defendant was operating his vehicle while under the influence of alcohol and controlled substances, the court noted that such evidence “could unfairly prejudice the UIM insurer by inflaming the jurors’ emotions and influence the compensatory damages award.”

Judge Nealon noted that, while, in such instances, bifurcation of the compensatory damages and punitive damages claims for trial may be warranted, that decision should be left to be made later by the assigned trial judge after discovery has been completed and the case has been certified for trial.

However, after review copious case law in support of the same, the court ruled that, in the meantime, no legitimate basis existed for severing the tort and UIM claims for purposes of discovery and pre-trial matters.

Accordingly, the court overruled the UIM carrier’s Preliminary Objection asserting a misjoinder of a cause of action under Rule 1028(a)(5).  With this decision, the court denied the request to sever the tort claim from the UIM claims.

Judge Nealon did note that his decision was without prejudice to the right of any Defendant to later seek a bifurcation of the claims for compensatory damages and punitive damages for trial.

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

Judge Powell of Lackawanna County Rules in Favor of Consolidation of Post-Koken UIM and Third Party Claims

In his decision in the post-Koken case of Roth v. Gonzalez, No. 2025-CV-06170 (C.P. Lacka. Co. Feb. 19, 2026 Powell, J.), Judge Mark Powell of the Lackawanna County Cour of Common Pleas overruled the UIM carrier’s Preliminary Objections seeking to sever the Plaintiffs’ claims against the tortfeasors for negligence from the Plaintiffs’ claims against the UIM carrier for UIM benefits.

The court also overruled the tortfeasor’s Preliminary Objections seeking to strike the Plaintiff’s claims for punitive damages under an argument that there were no facts to support the claims for reckless, willful, or wanton misconduct that was asserted against a tortfeasor Defendant.

Relative to the Motion to Sever the negligence claims from the UIM claims, the court noted that the consolidation of such claims for discovery and pre-trial preparation will promote convenience and avoid duplicate depositions and other forms of discovery.

Judge Mark Powell
Lackawanna County 

Relative to the third party Defendant’s Preliminary Objections on the allegations of recklessness and the claims for punitive damages, the court found that sufficient facts were pled under which the jury could conceivably conclude that the Defendant allegedly demonstrated a careless disregard for the safety of the traveling public.

Judge Powell also noted that, with regards to the concern of the UIM carrier about the possible references to “insurance” during the course of the trial, and the prejudice that may result therefrom, the court noted that the mere mentioning of insurance, in and of itself, does not preclude the joinder of the claims as the trial court judge still has the ability to address evidentiary issues and may deal with any references to insurance at trial in a manner that the trial judge deems appropriate.

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

Mock Trial Jurors Needed for State Championship Competition

 

THE 2026 PENNSYLVANIA HIGH SCHOOL MOCK TRIAL STATE CHAMPIONSHIP COMPETITION PUT ON BY THE YOUNG LAWYERS DIVISION OF THE PENNSYLVANIA BAR ASSOCIATION IS SET TO TAKE PLACE THIS UPCOMING FRIDAY AND SATURDAY, MARCH 27-28, 2026 IN THE DAUPHIN COUNTY COURTHOUSE IN HARRISBURG, PA.

IF YOU ARE WILLING AND ABLE TO VOLUNTEER TO SERVE AS A JUROR TO JUDGE THE COMPETITION, PLEASE EMAIL MARIA ENGLES OF THE PENNSYLVANIA BAR ASSOCIATION AT maria.engles@pabar.org.

Judge Williamson of Monroe County Addresses a Novel Issue of Proper Pleading

Which way to plead?

In the case of Windsor-Mount Joy Mut. Ins. Co. as subrogee to the Rights of The Revillas v. Cory Willis Trucking, LLC, No. 006821-CV-2024 (C.P. Monroe Co. Jan. 6, 2026 Williamson, J.), the court addressed a Defendant’s Petition for Leave of Court to File a Third Party Complaint to Join Additional Defendants.

According to the Opinion, this matter involved a bridge collapse allegedly caused by the Defendants while crossing a bridge with a load of stone. The bridge was owned by the Plaintiff insurance company’s insureds and provided access across a creek to the land of the insureds.  The Plaintiff insurance company, as subrogee to the rights of their insureds, brought suit against the Defendants seeking to recoup the damages they paid out for the repair of the bridge.

One issue faced by the court in this regard was the argument by the Plaintiff that the proper method to bring in the insureds as allegedly responsible parties for the damages that were incurred was by way of a counterclaim in the Defendants’ Answer to the Complaint as opposed to the Defendants proceeding by way of a Joinder Complaint to name the insureds as Additional Defendants.

The Plaintiffs in the case were asserting that the insureds, being listed in the caption as being related to the subrogation insurance company Plaintiff, and as otherwise already being involved in the case, could only be subject to a counterclaim and not a Joinder Complaint.

After reviewing the issues, Judge David J. Williamson of the Monroe County Court of Common Pleas found that the insureds were not parties to the suit for purposes of requiring a counterclaim as opposed to a joinder as a third party Defendant. The court noted that the Plaintiff in this matter was the insurance company, which had filed the action as subrogee for the insureds. The court noted that the insurance company’s appearance in the lawsuit did not bring personal jurisdiction of the court over the insureds as parties.

Judge David J. Williamson
Monroe County

Judge Wiliamson noted that subrogation rights confer the right to proceed against someone else, but it does not mean that the subrogee stands in the shoes of the insured for purposes of claims made against the insured. The court noted that it “makes sense” that the insured must be officially joined as an actual party.

The court additionally noted that the parties in this matter had not cited any case law that would support an argument that, as subrogee, the insureds were automatically a party to the action. The court noted that all counsel seemed to be in agreement that this was novel issue.

Judge Williamson otherwise noted that, in the pleadings, the insureds were not named as the actual party Plaintiff and were repeatedly referred to as the Plaintiff’s insureds.  The court also noted that, throughout the Complaint, the Plaintiff insurance company was listed as being a separate and distinct party from its insureds.

The court also noted that the insureds did not sign any verification to the Complaint.

For these reasons, Judge Williamson ruled that the proper procedure was for the insureds to be brought into the case by way of a Third Party Complaint.

In addressing the timeliness of the Third Party Complaint, the court noted that such Joinder Complaints are permitted as course within sixty (60) days of the filing of the original Complaint. Once the sixty (60) day period expired, the court is required to undertake a balancing test.

After reviewing the record in this matter, the court ruled in favor of allowing for the filing of a Joinder Complaint, particularly where there would be no prejudice to the parties by allowing the same.

In terms of any argument with regards to the statute of limitations, Judge Williamson noted that that issue could be raised in the pleadings that would be filed after the filing of the Joinder Complaint.

As such, the court granted the Petition for Leave of Court of File a Joinder Complaint.

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 12, 2026).

Source of image:  Photo by Tormius on www.unsplash.com.

Interesting Legal Issue: ChatGPT Sued in Federal Court in Illinois Under Allegation of Practicing Law Without a License

According to an article written by Laura Lorek which was published in a March 9, 2026 online edition of The Legal Intelligencer, an interesting lawsuit was filed in the US District Court of the Northern District of Illinois recently, naming OpenAI Foundation and OpenAI Group PBC as Defendants. The lawsuit accuses ChatGPT, a chatbot developed by OpenAI, of practicing law without a license.

Nippon Life Insurance Company of America filed suit against the Defendants noted after a former pro se litigant used ChatGPT to contest a previously settled and dismissed lawsuit, which the pro se Plaintiff later acknowledged was a final and enforceable settlement.

The Complaint that was filed in the lawsuit alleges that ChatGPT provided unauthorized legal assistance to the former pro se litigant who had settled claims against the insurance company. The Complaint alleges that the unauthorized legal assistance provided by ChatGPT resulted in forty-four (44) frivolous Motions being filed and allegedly caused the Plaintiff $300,000 in legal expenses.

The insurance company was seeking in its lawsuit $300,000 in compensatory damages, court costs, attorneys’ fees, a permanent injunction barring OpenAI from providing legal assistance in Illinois, and $10 million dollars in punitive damages.

As noted in the article written by Laura Loreck for The Legal Intelligencer, the case raises unresolved legal questions, including whether AI tools can be held liable as third-party offenders, whether providing legal assistance constitutes “the practice of law” under state statutes, and the extent to which AI companies are responsible for foreseeable misuse of their products.

Source: Article – “Practicing Law Without a License: ChatGPT Sued For Legal Fees,” By Laura Lorek of The Legal Intelligencer (March 9, 2026).

Source of image:  Photo by Matheus Bertelli on www. pexels.com.

Pa. Supreme Court Finds Issues of Fact Regarding Immunity Defense in Third Party Liability Case Arising Out of a Work Injury

In the case of Brown v. Gaydos, No. 22 WAP 2024 (Pa. Feb. 18, 2026) (Op. by Mundy, J.)(Brobson, J., concurring and dissenting)(Wecht, J. dissenting), the Pennsylvania Supreme Court addressed the issue of whether the trial court’s entry of summary judgment in favor of a Defendant employer in a third party litigation based upon §205 of the Workers’ Compensation Act, 77 P.S. §72, which provides for co-employee immunity, was appropriate.

The court noted that, §205 of the Workers' Compensation Act provides that, “[i]f disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.

The court found that there were no genuine issues of material fact regarding whether the Defendant employee’s allegedly negligent acts or omissions occurred while he was in the same employ as the Plaintiff that supported the trial court's denial of summary judgment. As such, the court remanded the case back to the trial court for further proceedings.

According to the Opinion, this matter involved a workplace accident that occurred when the Plaintiff decedent was fatally injured by a skid loader which was owned by the Defendant employer. The decedent’s supervisor was not on the premises at the time of the incident.

After securing workers' compensation from his employer, the estate of the decedent pursued a third party claim against his employer and asserted that, among other acts, the employer and its employees were negligent in maintaining the skid loader and in failing to train or supervise the company’s employees in operating the machine.

The employer filed a Motion for Summary Judgment asserted that the Workers’ Compensation Act provided immunity from civil suit as either the decedent’s employer or co-employee.  In this decision, the Supreme Court ruled that issues of fact should have compelled the trial court to deny the Motion.

Anyone wishing to review a copy of the Majority Opinion for this decision may click this LINK.

Justice Brobson's Concurring and Dissenting Opinion can be viewed HERE.

Justice Wecht's Dissenting Opinion can be viewed HERE.


Source: Article – “Pa. Supreme Court Rules Against Broad Application of Co-Employee Immunity Under the Workers’ Comp Act, “ By Riley Brennan of The Legal Intelligencer (Feb. 18, 2026).

Superior Court Upholds Right to Jury Trial and Rejects Arbitration Clause Relative to Contract Plaintiff Entered Into on Defendant's Website

In the case of Duffy v. Tatum, No. 483 EDA 2025 (Pa. Super. March 3, 2026 Lazarus, P.J., Panella, P.J.E., and Sullivan, J.) (Op. by Panella, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s Order overruling a Defendant’s Preliminary Objections under which the Defendant asserted that a Plaintiff had waived the right to a jury trial by way of an agreement entered into via the Defendant's website.

According to the Opinion, the Plaintiff had proceeded to the Defendant’s website to book services provided by the Defendant moving company.

On that website, the customer was required to check off a box accepting the Defendant’s terms of services. The customer had the ability to click on an underlined phrase that would take the customer to the Defendant’s Terms of Service by way of a hyperlink. 

On that hyperlink, if the customer accessed it, one of the provisions that would be seen in the language on that page would be an ADR clause for the resolution of any disputes that arose between the parties by way of mediation followed by an arbitration, as opposed to by way of an opportunity for a jury trial in a court of law.

In this matter, the trial court found that the Defendant’s website did not provide a reasonably obvious notice of its Terms of Service to the Defendant’s customers prior to the customer’s purchasing the services offered by the company.  As such, the trial court ruled that the customer had never agreed to waive his constitutional right to a jury trial. As noted, on appeal, the Pennsylvania Superior Court affirmed the trial court’s decision in this regard.

The Superior Court framed the central issue before it as involving “an overarching question of whether a person should be deprived of their constitutional right to a jury trial when they ostensibly enter into an arbitration agreement through hyperlinked Terms of Service on a website that the person never clicked on, viewed, or read.” See Op. at p. 6.

In so ruling, the Pennsylvania Superior Court referred to its prior decisions on this issue in which the court had held that the Pennsylvania State Constitution provides its citizens with the greater protections afforded by the right to a jury trial.

The Superior Court otherwise noted that the “copious use of contracts with restrictive arbitration agreements causes concern, particularly in the context of internet contracts like the one at issue here, where the parties are frequently of unequal bargaining power and one party may be unaware of the significant rights they are waiving simply by using a website to make a purchase or retain services.” See Op. at p. 8.

President Judge Emeritus Panella noted in his Opinion that, in recognition of this reality, Pennsylvania courts have taken a small step towards righting the wrongs of arbitration agreements with respect to wrongful death actions involving negligent nursing center facilities. The court otherwise noted that there is still a need for greater scrutiny regarding a person’s waiver of their constitutional right to a jury trial when it comes to these types of arbitration agreements in other scenarios as well. 

Judge Panella stated that “[t]his need is imperative when there is no genuine effort to inform a purchaser of the terms of the contract before they click on a link or box that purports to generate their agreement to a contract, as the case” was in this matter. See Op. at p. 9.

The court went on to note that it found that it is imperative that, in the context of civil litigation matters, that a person be fully informed of their constitutional right to a jury trial and of the effect of waiving that right. Accordingly, the court held that it is essential that any waiver of the right to a jury trial must be clearly described and evidenced such that the person waiving the right fully understands the right that they are giving up by agreeing to enter into the contract.

In light of its holding that the constitutional right to a jury trial in Pennsylvania should be afforded the greatest protection possibly by the courts of Pennsylvania, the court in this Duffy case enunciated a “strict burden of proof [that its] necessary to demonstrate a person’s unambiguous manifestation of assent to arbitration.” See Op. at p. 15.

More specifically, the court noted that this strict burden of proof necessary to demonstrate a person unambiguous assent to arbitration requires (1) an explicit statement on the registration website and application screens that a consumer is waiving their right to a jury trial when then the person agrees to the seller’s Terms of Service and the registration cannot be completed until the person is fully informed of that waiver, and (2) when the agreements are available for viewing after a user has clicked on a hyperlink, the waiver should be not hidden in the middle of the document, but rather, should appear prominently in bold, capitalized text. See Op. at p. 15.

The court additionally noted that the word “arbitration” must also be clearly defined within the arbitration agreement in addition to being prominently displayed in the language of the contract. See Op. at p. 16.

In the end, in this case, where the customer here never clicked on the Terms of Service and, therefore, never saw the Terms of Service, the court ruled the customer did not unambiguously assent or agree to give up his or her rights to a jury trial in favor of arbitration. 

The Superior Court also ruled that, where the website did not provide a reasonably obvious notice of its Terms of Service, there was no meeting of the minds on a contractual basis relative to the issue of arbitration for the resolution of any disputes. 

As such, the Pennsylvania Superior Court affirmed the lower court's decision and found that the trial court did not err in overruling the Defendant company’s Preliminary Objections on the issues presented.

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


Source: Article – “Pa. Superior Court Rules Company’s Terms Didn’t Waive Customer’s Right to Jury Trial” By Tristin Hoffman of The Legal Intelligencer (March 6, 2026).


I also send thanks to Attorney Thomas F. Foley, III of the Foley Law Firm in Scranton, Pennsylvania for making sure that I saw this decision as well.

Source of image:  Photo by Vojtech Okenka on www.pexels.com.