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Superior Court Addresses How To Address Settled Defendants at Trial

In its non-precedential decision in the case of Swank v. Rabkin Dermatopathology Laboratory, P.C., No. 342 WDA 2025 (Pa. Super. Dec. 15, 2025 Panella, P.J.E., McLaughlin, J., and Bender, P.J.E.) (Op. by Panella, P.J.E.), the court reversed the entry of judgment in favor of certain Defendants in a medical malpractice case and remanded the case back down for further proceedings.

According to the Opinion, this matter involved a delayed cancer diagnosis case.

Prior to trial, the Plaintiff reached a settlement with all parties except one and proceeded to trial against that last remaining party.

The Plaintiff, along with the settling Defendants, requested the trial court to dismiss the settling Defendants prior to trial because the remaining Defendant did not have any expert to provide an expert opinion against the settling Defendants. Moreover, the remaining Defendant did not file any crossclaim against the settled Defendants. Also, the Plaintiff did not have any expert testimony that was critical of the settling Defendants that would be presented at trial.  At the trial level, it was the Plaintiff’s position that it was legally impossible for there to be a prima facie case established against the settling Defendants and that, as such, those Defendants should be dismissed. 

The trial court disagreed and kept those settling Defendants in the case, relying upon the Fair Share Act in doing so.

As the case proceeded, the trial court did end up dismissing one of the settling Defendants after the Plaintiff’s case-in-chief was completed. The remaining other settled Defendants were dismissed just before closing arguments.

At trial, the Plaintiffs claimed that there was prejudice to the Plaintiff because the jury was left wondering why these Defendants were dismissed after they participated in the trial.

The jury ended up entering a defense verdict.  

The Plaintiff appealed and, in this Superior Court decision, the appellate court reversed the trial court’s decision and remanded the matter for further proceedings after finding that the trial court’s reliance upon Fair Share Act was misplaced.

Judge Panella, who wrote this Opinion, as well as the Fair Share Act case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), noted that the Superior Court has concluded that, for the “Fair Share Act to apply, the Plaintiff’s negligence must be an issue in the case.” See Op. at 13 citing Spencer, 249 A.3d at 559.

The court noted that, in this case, the Plaintiff’s negligence was not at issue in the case. As such, the court ruled that the trial court erred in relying upon the Fair Share Act to keep Defendants in the case.

The court otherwise noted that there is no absolute right to have settled Co-Defendants on a Verdict Sheet. Rather, the appellate court noted that a trial court must determine whether any evidence of the settled Co-Defendant’s liability exists in the case presented before deciding whether that party should be put on the Verdict Slip.

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


I send thanks to Attorney Carmen J. Nocera of the Pittsburgh law firm of Harry S. Cohen & Associates, P.C. for bringing this case to my attention.

Source of image: Photo by Tima Miroshnichenko on www.pexels.com.

Superior Court Upholds The "Miscellaneous Vehicle" Exclusion Contained in UIM Policy

In the case of Erie Ins. Exch. v. Estate of Kennedy, 210 WDA 2025, 2025 Pa. Super 276 (Pa. Super. Dec. 11, 2025 Bowes, J., Stabile, J., Bender P.J.E.) (Op. by Stabile, J.), the Superior Court upheld a "miscellaneous vehicle" exclusion contained in the UIM carrier’s policy. 

The court more specifically ruled that the denial of coverage was proper when the deceased injured party had a policy providing stacking of uninsured and underinsured benefits that included an exclusion stating that the policy would not cover damages sustained by an insured while occupying a miscellaneous vehicle owned by a relative and that was not covered under the subject insurance policy. 

The Superior Court ruled that the "miscellaneous vehicle" exclusion was valid in this case because the insured was seeking to stack policies but had not first received uninsured and underinsured coverage under the policy applicable to the vehicle he occupied at the time the injuries occurred.  

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

Source:  “Court Summaries” by Timothy L. Clawges in the Pennsylvania Bar News (Jan. 19, 2026). 

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PA Federal Court Predicts PA Supreme Court Will Adopt Efficient Proximate Cause Doctrine in Property Insurance Coverage Cases

In the case of Stella Prop. Dev. and Event Prod., LLC v. Auto-Owners Ins. Co., No. 3:24-CV-00060-SLH (W.D. Pa. Jan. 28, 2026 Smith, J.), the court ruled in favor of an insurance carrier on Cross-Motions for Partial Summary Judgment in an insurance coverage, breach of contract, and bad faith claims.

According to the Opinion, this matter involved a commercial property policy that offered protection to the Plaintiff’s property. The Plaintiff’s property allegedly sustained damages from a windstorm.

The Plaintiff had an inspection completed and submitted a claim to the insurance company for first-party property coverage. The Plaintiff provided the carrier with the inspection report.

The carrier had their own inspection completed and that report indicated that the damage to the Plaintiff’s roof involved shingles that appeared to be over twenty-five (25) years of age and in very poor condition. That expert also concluded that no sudden loss created the damages to the roof. 

The carrier also secured an engineering expert who completed an additional inspection and also concluded that the roof and the shingles on the roof were not damaged by the wind event. Based at least in part on these reports, the carrier denied the claim.

In issuing the denial, the carrier relied upon certain exclusions including a wear-and-tear exclusion and a maintenance exclusion.

Thereafter, the Plaintiff filed suit alleging a breach of contract and bad faith claims. The matter came before this court on Cross-Motions for Summary Judgment on the issues presented.

The court denied the Plaintiff’s Motions and granted the insurance company’s Motions.

In reviewing the Plaintiff’s Motion for Summary Judgment on its breach of contract claim, the court noted that, based upon the exclusions claimed by the carrier, the carrier was asserting that summary judgment in favor of the Plaintiff was inappropriate because there was a genuine issue of material fact as to whether the damages to the roof pre-existed the storm or were caused by the storm.

In this regard, the court reviewed the efficient proximate cause doctrine and compared it to the concurrent causation doctrine in coverage dispute matters.

In the end, this court predicated that the Pennsylvania Supreme Court would adopt and apply the efficient proximate cause doctrine if faced with the issue.

Applying that doctrine to the case presented, the court noted that the Plaintiff’s claims of a breach of contract is not defeated merely because wear-and-tear and/or inadequate maintenance may have contributed to the roof damage. Rather, the Plaintiff must still be provided with an opportunity to prove that the windstorm was the “dominant and efficient” cause of the roof destruction as opposed to being merely a “remote” or “incidental” cause. 

Given that there were issues of material fact in this regard, the court ruled that this question should be decided by a jury.

Relative to the carrier’s Motion for Partial Summary Judgment on the Plaintiff’s statutory bad faith claim, the court ruled that the Plaintiff had not produced sufficient evidence from which a jury could reasonably conclude, by clear and convincing evidence, that the carrier lacked a reasonable basis to deny the claim. 

The court noted that the record before it confirmed that the carrier relied upon detailed investigative materials and expert assessments that attributed the roof damage to decay and wear-and-tear. 

The court found that these expert assessments supplied an objectively reasonable basis for the carrier to conclude that wear-n-tear and/or inadequate maintenance, as opposed to a covered windstorm, was the dominant and efficient cause of the loss, and that the exclusions therefore applied.

The court noted that the mere possibility that the insured may prevail at proving the Plaintiff’s case in this regard “hardly equates to bad faith.” Rather, the court noted that the question under the bad faith statute, 42 Pa. C.S.A. §8371 is whether the denial lacked a reasonable basis. The court cited to other case law confirming that a reasonable basis for the denial of a claim is all that is required in order to defeat a claim of insurance bad faith.

Based on this law, the court ruled in favor of the carrier’s Motion for Summary Judgment on the bad faith issues and dismissed that claim of the Plaintiff with prejudice.

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


I send thanks to Attorney Robert S. Stickley of Stickley Law LLC in Newtown Square, PA for bringing this case to my attention.

Source of image:  Photo by Andreas Ebner on www.pexels.com.

Philadelphia County Matter Coordinated to Matter in Jefferson County Arising Out of Same Incident

Jefferson County Courthouse

In the case of Bucci Express, LLC v. SG Freight, Inc., No. 263-CV-2025 C.D. (C.P. Jeff. Co. Dec. 29, 2025 Foradora, P.J.), the court granted a Plaintiff’s Motion for Coordination of Actions in different counties relative to separate claims arising out of the same trucking accident, one of which was filed in Jefferson County and one of which was filed in Philadelphia County. The court ruled that the Philadelphia County lawsuit would be coordinated with the case that was filed in Jefferson County. The court made this ruling pursuant to Pa. R.C.P. 213.1.

According to this Opinion, this matter arose out of a fatal multi-vehicle crash involving commercial trucks. Following the crash, two (2) trucking companies files suit in Jefferson County against multiple Defendants, including Pennsylvania Department of Transportation. The Plaintiffs alleged that the Jefferson County lawsuit was improperly filed to block proceedings in Philadelphia County.

In issuing his ruling, the court noted that PennDOT’s presence in the case weighed heavily in the decision, noting that state law limits where that agency can be sued. The court noted that keeping the case out of Jefferson County would effectively block the Plaintiffs from pursuing certain claims against PennDOT under the applicable law.

Although the court acknowledged that Philadelphia County may have been more convenient for some of the parties in that case, the court found that key witnesses, including first responders, were based in Jefferson County and should not be required to travel long distances.

Judge Foradora also noted that many pre-trial proceedings could be handled remotely, thereby reducing travel burdens on lawyers and witnesses.

The court additionally noted that, by coordinating the lawsuits, duplicative and inconsistent rulings, Orders, or judgments would be avoided a judicial economy furthered.

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

Source: Article “Venue Fight Ends As Court Moves Fatal Trucking Cases Outside Of Phila. Courts” By Tristin Hoffman of The Legal Intelligencer (Dec. 30, 2025).

Pennsylvania Lawyer Magazine Recognized on a National Level

An article of mine was featured in The Pennsylvania Lawyer magazine over the past year, which magazine was awarded a 2025 Luminary Award from the National Association for Bar Professionals!

My article entitled "Use of Exhibits in Opening Statements is Allowed" appeared in the May/June 2025 edition of the magazine. Here is a LINK to the Tort Talk post on that article, which post contains a link to the article.

I send thanks to Patricia Graybill, the editor of The Pennsylvania Lawyer magazine for agreeing to publish the article. I also extend my congratulations to her for receiving this recognition for the excellent work she has done for years with the magazine for the Pennsylvania Bar Association.

If you are interested in authoring an article, contact the Pennsylvania Bar Association via email at: editor@pabar.org.