Case Dismissed Due To Lack of Timely Service of Process

In the case of Trinkle v. Herndon, No. 8078-CV-2023 (C.P. Monroe Co. March 25, 2025 Zulick, J.), the court sustained a Defendant’s Preliminary Objections regarding the Plaintiff’s failure to promptly serve a Writ of Summons in a motor vehicle accident case and thereby dismiss the case.

According to the Opinion, following the subject motor vehicle accident that occurred on December 3, 2021, the Plaintiff filed a lawsuit on December 4, 2023.

The Monroe County Sheriff issued an Affidavit of Return showing that no personal service was made on the Defendant at his/her last known address, which service was attempted on December 28, 2023.

There was then no further docket activity until May 8, 2024 when the Court ordered the Plaintiff to file for special service on or before August 6, 2024 because the docket did not reflect an affidavit of successful service of process.

On September 10, 2024, the Plaintiff’s attorney filed a Praecipe to Reissue the Writ of Summons. The Defendant was served thereafter on September 24, 2024.

The Plaintiff then filed a Complaint on January 14, 2025. The Defendant responded with Preliminary Objections seeking to dismiss the action due to the statute of limitations.

In his Opinion, Judge Zulick provided a detailed review of the law of the statute of limitations and the law regarding proper and prompt service of original process.

The Court noted that the Plaintiff had filed a Writ of Summons on the day that the statute of limitations were set to expire on the end of that day. Looking at the record before it, the Court found that date Plaintiff had failed to demonstrate that a good faith effort was made to complete service.

Plaintiff’s counsel pointed to the fact that he was out of the office for a period of time during 2024 due to medical issues and he also sited an error made by his office staff who thought that the Sheriff’s Affidavit filed on December 28, 2023 showed that service had been completed.

The Court noted that, despite these statements, the Plaintiff was put on notice by the Court’s Case Management Order of May 8, 2024 which specifically advised that service was not complete. That Order also directed the Plaintiff to complete service or file a Motion for Special Service by August 6, 2024. According to the Opinion, the Plaintiff did not comply with those Orders and, as such, the Court found that the Plaintiff failed to prove that the Plaintiff acted diligently in attempting to complete service on the Defendant with notice of the lawsuit.

Consequently, the Court ruled that the case must be dismissed due to the bar of the statute of limitations.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (May 14, 2025).

Source of image:  Photo by Pavel Danilyuk on www.pexels.com.

Summary Judgment Denied in Parking Lot Slip and Fall Case

In the case of Coolbaugh v. Sonesta Select Allentown Bethlehem Airport, No. 2023-C-1548 (C.P. Leh. Co. Nov. 13, 2024 Reichley, J.), the court denied a Defendant’s Motion for Summary Judgment in a case involving an alleged slip and fall in the Defendants’ parking lot.

In denying the motion, the court held that there were genuine issues of material fact regarding the application of the hills and ridges doctrine where a de-icing of the parking lot had occurred approximately twenty-four (24) hours before the Plaintiff’s accident.

According to the record before the court, there was evidence that the Plaintiff fell when temperatures were around freezing and where it had snowed three or four days earlier. The court noted that, where the evidence also indicated that the parking lot had been de-iced approximately twenty-four (24) hours before the Plaintiff’s accident, there was an issue of fact on whether the alleged accumulation of the ice upon which the Plaintiff had slipped was a natural accumulation or not.

Given these issues of fact, the court denied the Motion for Summary Judgment.

The court also denied the Motion for Summary Judgment on the basis of rejecting the Defendants’ argument that they had delegated the snow and ice removal duties to a third party under a contract. The court stated that the record was silent as to whether the moving Defendants had relinquished possession and control of the parking lot during or after the third party had performed snow removal services.

The court additionally noted that there were factual questions regarding the Defendants’ notice of the parking lot’s condition where snowy and ice conditions had been observed in the lot for days or weeks leading up to the Plaintiff’s accident.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (April 30, 2025).

Source of image:  Photo by Wolfgang Lutzgendorf on www.pexels.com.

WARNING - NEW LAW - Put That Cell Phone Away While Driving or Face Getting Ticketed

While texting while driving has been banned in Pennsylvania since 2012, a new law that went into effect yesterday, June 5, 2025, bans all cell phone use while driving on the roads of Pennsylvania.

The law, known as “Paul Miller’s Law” (Senate Bill 37), makes it illegal to use a cell phone in your hands while driving. This includes holding your phone to do calls, emails, and texts. The law also prohibits having a cell phone in your hand for browsing the internet or for taking pictures or videos while you are driving.

The law prohibits these activities even when one is stopped at a red light or in a traffic jam.

Under the language of the law, it appears that an overhead bluetooth system can be used to make calls as long as one uses the buttons on the steering wheel and the dash and not by way of pushing buttons on the cell phone.

Under the law, for the first 12 months, the penalty will be a written warning. Starting June 5, 2026, the penalty will be a summary offense with a $50 fine, plus court costs and other fees. The violation carries no points against your license and it is not recorded on the driver’s record for noncommercial drivers. It will be recorded on a commercial driver’s record as a non-sanction violation.

Moreover, if a driver is convicted of both vehicular homicide and driving while distracted, they may be sentenced up to an additional five years in prison.

Under certain exceptions noted in the law, a driver may use a cell phone for emergency purposes. A driver may also use a mobile device if they pull off to the side of the road and stop where a vehicle may safely remain in a stopped position.

Here is a LINK to the summary of the law on PennDOT's website.

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Claims of Fraudulent and Negligent Misrepresentations Asserted Against Dentist Who Claimed Treatments Were Perfect Dismissed

In the case of Marcus v. Hazzouri, No. 2023-CV-5092 (C.P. Lacka. Co. May 27, 2025 Nealon, J.), the court sustained certain Preliminary Objections filed by a Defendant in a dental malpractice case.

According to the Opinion, the Plaintiff sued her former dentist alleging malpractice and lack of informed consent related to the alleged negligent installation of contra indicated mini-implants that later had to be removed and replaced with conventional implants.

The Plaintiff alleged that the dentist falsely stated that the mini-implants and his dental treatments were “perfect” and “going smoothly.” Based on these allegations, the Plaintiff additionally asserted claims of fraudulent and negligent misrepresentation, as a result of which misrepresentations the Plaintiff was reportedly unable to discovery her injury or the dentist’s negligence until she consulted with and treated with a different dental practice.

The Defendant dentist filed a demurrer to the fraudulent and negligent misrepresentation causes of action on the basis that those claims were duplicative of the Plaintiff’s malpractice claims and informed consent claims and were also unsupported by claims of separate damages.

The court granted the demurrer and noted that the only consequence alleged by the Plaintiff relative to the dentist’s representation involved the Plaintiff’s inability to discovery that the implants had failed due to the dentist’s conduct until the Plaintiff sought and received treatment from another dental group. Accordingly, the court ruled that the Plaintiff’s fraudulent and negligent misrepresentation claims were dismissed as legally insufficient due to the absence of any resultant damages.

However, the court noted that the statements allegedly made by the dentist would remain relevant to the matter in terms of any statute of limitations determination under the discovery rule and the fraudulent concealment doctrine.

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

Source of image:  Photo by Enis Yavuz on www.unsplash.com.

Trial Court Addresses Use of Hearsay Evidence During a Medical Malpractice Trial

In the case of Koesterer v. Thomas Jeffersons Univ. Hosp., Feb. Term 2021, No. 01051 (C.P. Phila. Co. Feb. 13, 2025 Bright, J.), the trial court issued a Rule 1925 Opinion in a medical malpractice case and held, in part, that a judgment in favor of the Plaintiff should be affirmed given that the medical malpractice Defendant did not suffer any prejudice to the point of warranting a new trial where the Plaintiff’s attorney was permitted to briefly cross-examine a Defendant physician with the expert opinions of the Plaintiff’s non-testifying expert in violation of the hearsay rule.

According to the Opinion, the Plaintiff sued the medical Defendants for professional liability after the Plaintiff’s mother died allegedly as a result of a pulmonary embolism after hip surgery.

At trial, the Plaintiff’s attorney was permitted, over the Defendants’ hearsay objection, to cross-examine a Defendant doctor and the Defendant doctor’s expert with the expert opinions issued by one of the Plaintiff’s non-testifying expert.

In this regard, the trial court pointed out that, immediately before the questioning at issue, the Defendant physician testified that there was a disagreement in the field of medicine regarding the issues raised in the non-testifying expert’s opinion.

Accordingly, the court stated that, while the questioning from the Plaintiff’s attorney briefly drew in an outside hearsay opinion from a non-testifying expert, the trial court found that it was impossible to conclude that the momentary reference would have had an significant impact on the jury’s decision. 

The court also noted that this was essentially the only reference to the opinions of the Plaintiff’s non-testifying expert at trial. Accordingly, in this Rule 1925 Opinion, the trial court asserted that it did not err or abuse its discretion in denying the medical Defendants’ request for a new trial based upon the alleged prejudice 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 (April 30, 2025).