Superior Court Rules That Trial Court Erred in Not Giving Increased Risk of Harm Jury Instruction

In the case of Smith v. Timar, Nos. 1942 EDA 2024 and 1973 EDA 2024 (Pa. Super. Sept. 9, 2026 Dubow, J., Sullivan, J., and Stabile, J.) (Op. by Stabile, J.) (dissenting Op. by Sullivan, J.), the Pennsylvania Superior Court addressed situations as to when an “increased risk of harm” jury instruction may be applicable where causation is disputed in certain professional negligence causes of action.

According to the Opinion, this matter involved a Plaintiff who sought out treatment from a Defendant chiropractor for lower back pain. The Plaintiff alleged that the chiropractor performed an allegedly unnecessary cervical spine manipulation that allegedly resulted in an arterial dissection, or a tear in the artery within the spinal column that supplies blood to the brain. The Plaintiff further alleged that that injury resulted in a stroke that left the Plaintiff with permanent impairments.

At trial, the Plaintiff presented a medical expert who offered an opinion that the Defendant chiropractor’s manipulation of the Plaintiff’s neck resulted in an increase risk of a vertebral artery dissection. Despite the provision of this expert testimony offered by the Plaintiff, the trial court refused to give an increased risk of harm jury instruction under a belief that such an instruction would confuse the jury.

Thereafter, the jury returned a verdict finding negligence against the Defendant chiropractor but not causation.

On appeal, Judge Stabile reviewed the Pennsylvania law regarding the increased risk of harm jury instruction. Based upon that review of the law, Judge Stabile concluded that the trial court erred in refusing to give the requested "increased risk of harm" jury instruction.

In so ruling, the court noted that the "increased risk of harm" jury instruction “is necessary to avoid imposing on Plaintiffs a potentially impossible burden of proven causation where the Defendants misfeasance is one of several factors that might have contributed to the Plaintiff’s injury.”

The Superior Court ruled that the "increased risk of harm" jury instruction should have been provided so that the Defendant could not use other potential contributing factors as a shield behind which the Defendants may be protected from answering for their alleged negligence.

The court on appeal noted that, where the Plaintiff had produced sufficient evidence to warrant the provision of such a jury instruction to the jury, and where the absence of that "increased risk of harm" jury instruction could not be said to have been a harmless error, the case was remanded to the trial court for a new trial limited on the issues of causation and damages.

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


Source: The Pa. Super. Blog by Jon Bruno of Bruno Litigation, LLC in Pittsburgh, PA.

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Court Strikes Untimely Jury Demand

In the case of Core5 at Route 100, LLC v. Lowhill Township, No. 2025-C-0308 (C.P. Leh. Co. June 23, 2026 Johnson, J.), the court granted a Plaintiff’s Motion to Strike a defendant’s untimely jury demand.

According to the Opinion, the Defendant’s demand for a jury trial was submitted more than five months after the last permissible pleading in one of the consolidated actions in this matter, and more than seven months after the last permissible pleading in the other consolidated action.

The court additionally noted that the Defendants had also signed a joint Stipulation that scheduled a non-jury trial.

While the court acknowledged that the Pennsylvania Constitution protects the right to a jury trial, Pennsylvania Supreme Court precedent had previously held that defendants may waive a jury demand if the demand for a jury trial is made more than twenty (20) days after the last permissible pleading and not in compliance with Pa. R.C.P. 1007.1(a).

The court also rejected the Defendant’s attempt to rely upon Pa. R.C.P. 126(a) which calls for the liberal application of the Pennsylvania Rules of Civil Procedure. The court exercised its discretion and concluded that it should adhere to the wording of Rule 1007.1(a).

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Sept. 17, 2026).

Lessons in Complaint Drafting From Judge Mark Powell of Lackawanna County

In the case of Hoagland v. PPL Electric Utilities Corp., No. 2024-CV-5799 (C.P. Lacka. Co. Sept. 1, 2026 Powell, J.), the court addressed several Preliminary Objections filed by the Defendant in a motor vehicle accident in which the Plaintiff was a passenger in a freightliner that crashed and struck a PPL utility pole.

The Plaintiff contended, in part, that the pole was placed dangerously close to the roadway and that PPL’s negligent and reckless conduct related to the placement of the pole allegedly caused or contributed to the Plaintiff’s fatal injuries.

The court sustained PPL’s objection to the Plaintiffs’ inclusion of a “John Doe maintenance company” as a Defendant. The court noted that, although the Plaintiffs alleged that they utilized reasonable diligence in attempting to identify the unidentified company, Pa.R.C.P. 2005 expressly provides that the Doe-Defendant procedure is not available in an action commenced by way of a Writ of Summons as was the case in this matter. The court additionally noted that the subsequent filing of a Complaint did not alter the result. As such, the claims asserted against the Joe Doe Defendant in this matter were dismissed.

Judge Powell otherwise rejected PPL’s contention that the Plaintiffs’ allegations describing the pole as “too close,” “dangerous,” and “unsafe” lacked sufficient specificity. The court noted that, when the Complaint was considered as a whole, the allegations were specific enough to allow the claims to proceed.

The court did otherwise, however, strike the Plaintiffs’ generalized references in the Complaint to unspecified statutes, ordinances, regulations, and industry standards. In this regard, the court granted the Plaintiffs twenty (20) days to identify, more specifically, any statute, ordinances, regulations, or industry standards that they are relying upon.

Judge Mark Powell
Lackawanna County

Judge Powell additionally followed the trend of allowing the Plaintiffs’ allegations of recklessness to remain in the case given that claims of negligence were asserted.

Also allowed to continue were the claims for punitive damages. The court noted that the Plaintiff had alleged that PPL knew the pole was dangerously close to the roadway, appreciated the risk it presented to motorists, and consciously disregarded that risk.

Judge Powell otherwise struck the Plaintiffs’ generalized allegations of negligent maintenance and repair because the Plaintiffs failed to identify any physical defect with the pole.

A separate negligent inspection theory was found to be viable because an inspection arguably could have disclosed that the pole’s proximity to the roadway allegedly presented an unsafe condition.

The court otherwise also concluded that the Plaintiffs plead a viable negligence claim under Tolerico v. Bonham, 650 A.2d 1192 (Pa. Cmwlth. 1994), which recognizes a utility company’s duty to locate and maintain utility poles so as to avoid unreasonable and unnecessary dangers to motorists on roadways.

The court emphasized that the Tolerico case also established that a driver’s departure from the roadway does not necessarily constitute the sole or superseding cause of an ensuing collision with a utility pole.

Here, the court concluded that it could not determine from the pleading that the driver’s loss of control was so extraordinary or unforeseeable so as to relieve PPL of liability as a matter of law.

Accordingly, the question of whether the pole was dangerously located and whether its placement was a substantial factor in causing the death of the decedent remained a factual question for discovery and, if appropriate, trial.


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

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Please Save the Date of November 12, 2026 for Lackawanna Pro Bono Gala

 

Trial Court Limits Effort By Two Attorneys in Same Firm To Question Multiple Witnesses at Depositions

In the case of Mercado v. UGI Utilities, Inc., No. 2022-CV-5250 (C.P. Lacka. Co. Sept. 15, 2026 Nealon, J.), the court addressed the issue of whether multiple, independent interrogations of the same witness at a deposition by separate Plaintiffs’ lawyers in the same firm is permitted.

This appears to be an issue of first impression in terms of any court decision.

According to the Opinion, two lawyers in the same law firm commenced consolidated actions on behalf of three Plaintiffs as a result of a single motor vehicle accident allegedly caused by the eruption of a gas pipeline underneath a roadway. For more than three years, those attorneys in the same law firm jointly represented all three Plaintiffs.

Shortly before the first set of discovery depositions began, as an apparent strategy, those lawyers withdrew their appearances for particular Plaintiffs in certain actions and then proceeded to conduct separate examinations of the deponents, thereby prompting objections by defense counsel. The defense attorneys challenged the propriety of independent interrogations by those attorneys and their redundant questioning that prolonged the depositions.

In anticipation of a next round of depositions, the Defendants filed a Motion for a Protective Order seeking to limit the Plaintiffs “to having only one attorney question each witness that is deposed in the matter.”

Judge Terrence R. Nealon
Lackawanna County

In his ruling, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas undertook a detailed analysis of the issue presented.

Judge Nealon generally noted that the Plaintiffs in this matter had identical interests in the consolidated cases. The court noted that both Pa. R.C.P. 223(2) and Pa. R.E. 611(a)(2)-(3) provide trial judges with the discretion to limit the number of attorneys who may represent the same group of parties.  Those Rules also allow a trial court judge to exercise reasonable control over the mode of examining witnesses in order to protect the witnesses from harassment and to avoid the wasting of time.

In his review of other cases that peripherally addressed the issue presented, the court noted that it has been recognized that it is an abuse of discretion to permit attorneys to effectively “tag team” a witness with duplicative participation and interrogation while those attorneys are representing the same interests.

Judge Nealon noted that, for example, under the deposition protocol requested by the Plaintiffs in this matter, a law firm representing a tortfeasor Defendant and a vicariously liable employer in cases of uncontested agency would be entitled to have a second defense lawyer in their firm represent the employer and then have both attorneys conduct independent and separate examination of witnesses even though the tortfeasor and the employer have identical interests. The court noted that allowing such a practice would protract depositions needlessly and cause recurring objections against the repetitive questioning, as was happening in the case before the court here.

Judge Nealon ultimately held that, in light of the two lawyers’ joint representation of all three Plaintiffs for more than three years, and given the complete commonality of interests among the Plaintiffs in the consolidated cases, the Defendant’s Motion for a Protective Order would be granted. 

Under the Court's Order, the Plaintiffs were directed to designate a single attorney to examine each deponent on behalf of all of the Plaintiffs during future depositions.

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

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Court Upholds Terms of Arbitration Agreement

In the case of Caplinger v. Power Home Solar, LLC, No. CI-24-01474 (C.P. Lanc. Co. Brown, J.), the court sustained a Defendant’s Preliminary Objections and held that a valid, enforceable Arbitration Agreement existed between the parties and covered the dispute in controversy.

As such, the court ruled that, under the terms of the agreement, the parties were bound to participate in a binding Arbitration as opposed to this litigation.

According to the Opinion, this matter arose out of a contractual dispute regarding the installation of solar panels on the Plaintiff’s property. During the course of the work, a fire originated in the area where the Defendants had performed the work. The Plaintiffs sued in negligence and breach of contract.

As noted above, based upon the contractual agreement, the court sustained the Defendant’s Preliminary Objections and dismissed the case after finding that the contract between the parties contained a valid Arbitration clause.

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 9, 2026).

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Superior Court Applies a Statue of Repose in a Construction Case

In its non-precedential decision in the case of Trepanowski v. Hovnanian Enterprises, Inc., No. 841 EDA 2025 (Pa. Super. Aug. 28, 2026 Dubow, J., Kunselman, J., and Sullivan, J.) (Mem. Op. By Sullivan, J.), the Pennsylvania Superior Court addressed the law regarding a statute of repose.

In this matter, the Plaintiffs were pursuing a construction defect claim against various construction Defendants.

The trial court entered summary judgment against the Plaintiff’s finding that a statute of repose barred the Plaintiff’s claims. The trial court’s decision was affirmed on appeal.

According to the Opinion, the Plaintiff was raising claims relative to alleged defects in their property that began to allegedly be discovered after the Plaintiff’s moved into the home near the end of 2007. Work was performed on the home in 2011 as well as in 2021. The Plaintiffs filed their Complaint in 2023.

The Defendants raised various arguments stating that the construction project statue of repose served as an absolute bar to recovery given that more than twelve (12) years had elapsed between the issuance of the Certificate of Occupancy of the property and the initiation of the lawsuit. The Defendants also asserted other grounds based upon the statue of repose.

The Plaintiffs countered that the statute of repose did not bar their claim because their lawsuit was initiated within ten (10) years of the completion of the work on the home.

As stated, after its review of the matter before it, the Pennsylvania Superior Court ruled, in a non-precedential decision, that the trial court had properly entered summary judgment in favor of the Defendants and against the Plaintiffs.

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


I send thanks to Attorney Kenneth T. Newman of the Pittsburgh office of Thomas, Thomas & Hafer, LLP, for bringing this decision to my attention.

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