Bad Faith Claim Goes Up In Smoke In Fire Loss Claim - But Right To Amend Allowed

In the case of Wendolowski v. Erie Insurance, No. 2023-CV-3806 (C.P. Lacka. Co. July 14, 2025 Nealon, J.), the court addressed Preliminary Objections filed by a carrier challenging the legal sufficiency of the insured’s bad faith claim arising out of a fire loss.

The court noted that, to recover for statutory bad faith, an insured must establish 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.

In this matter, the court noted that the Plaintiff’s Complaint baldly alleged that the carrier acted in bad faith in failing to pay his claimed loss in full. The court noted that the Plaintiff did not provide any facts arguably supporting any conclusion that the carrier lacked a reasonable basis for disputing the extent of the laws or that the carrier knew or recklessly disregarded the absence of such a reasonable basis.

As such, the court granted the carrier’s demurrer to the insured’s bad faith claim. However, the insured was permitted to file an Amended Complaint in an effort to provide the requisite factual support for a statutory bad faith claim.

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

Source of image:  Photo by Kurt Hudspeth on www.pexels.com.

Summary Judgment Granted In Favor of Restaurant in Foodborne Illness Claim Due to Lack of Expert for Plaintiff

In the case of Lawrence v. Texas Roadhouse Holdings, LLC, No. CI-23-00720 (C.P. Lanc. Co. May 22, 2025 Brown, P.J.), the court granted the Defendant’s Motion for Summary Judgment in a case where the Plaintiff alleged that he contracted a foodborne illness after eating at a Texas Roadhouse restaurant in Lancaster County.

The court noted that, while medical tests completed on the Plaintiff after his visit to the restaurant raised the possibility of E. coli colitis, the record revealed that the Plaintiff was never definitively diagnosed with E. coli. The court also noted that the Plaintiff’s discharge diagnosis from his initial medical visit was for acute gastroenteritis, rather than any specific foodborne illness. It was also indicated that no stool sample was taken that could have been analyzed to definitively identify any foodborne illness.

In granting summary judgment in this matter, the court emphasized that the Plaintiff did not present any competent expert medical evidence to establish a causal link between the Plaintiff's consumption of food at the restaurant and his alleged illness.

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

I send thanks to Attorney Jennifer G. Shorr of the Philadelphia office of the Weber Gallagher law firm for bringing this case to my attention.

MEDIATION SUCCESS TIP FROM CUMMINS MEDIATION SERVICES

 

 TIP TO IMPROVE CHANCES 

FOR SUCCESS AT MEDIATION:

FULLY BRIEF YOUR CLIENT OR CLAIMS REPRESENTATIVE ON THE MEDIATION PROCESS BEFORE YOU GET TO THE MEDIATION

TEMPER THE EXPECTATIONS OF THE CLIENT OR CLAIMS REP AND REMIND THEM THAT THE GOAL IS NOT TO WIN, THE GOAL IS TO SETTLE FAVORABLY

Superior Court Reverses Trial Court Dismissal of a Matter as a Discovery Sanction

In its non-precedential decision in the case of Spigelmire v. Lehnhoff’s Landscaping, No. 1456 MDA 2024 (Pa. Super. July 1, 2025 Bowes, J., Olson, J., and Stabile, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court overruled a trial court decision dismissing a personal injury case as a sanction for the Plaintiff’s discovery violations.

This case arose out of a slip and fall incident.

The Superior Court held that, while Plaintiff’s conduct was improper, that misconduct did not warrant as extreme consequence as a dismissal of the case.

During the course of the matter, one of the Defendants secured an Order compelling the Plaintiffs to produce records. When the Plaintiff still did not respond to the discovery requests thereafter, that Defendant filed a Motion for Sanctions. When Plaintiff’s counsel failed to appear at the sanctions hearing, the court ordered that the case be dismissed with prejudice.

Several days later, the Plaintiff requested the trial court to reconsider the dismissal, claiming that the Plaintiff missed the discovery deadline and the hearing on the Motion for Sanctions because her attorney failed to proper record and communicate the dates. The court denied the Motion for Reconsideration and the Plaintiff appealed. 

As noted, the Superior Court reversed, finding that the trial court abused its discretion in dismissing the matter.

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

Source: Article “Cases’ Dismissal Was Too Extreme Sanction For Plaintiff’s Discovery Violations, Pa. Appeals Court Says,” By Aleeza Furman of The Legal Intelligencer (July 2, 2025).

Source of image: Photo by Elena Mozhvilo on www.pexels.com.

Superior Court Rules, For First Time, that Gist of the Action Doctrine Does Not Apply To Support Dismissal of a Breach of Contract Claim

In the case of Swatt v. Nottingham Village, 2025 Pa. Super. 138 (Pa. Super. July 2, 2025) (en banc) (Op. by Kunselman, J.), a Pennsylvania Superior Court en banc panel addressed the issue of whether the gist of the action doctrine applies to contract actions.

This case arose out of a nursing home malpractice claim. The Plaintiff filed claims for both malpractice and breach of contract.

A central issue in the case was to be decided by the court is whether the gist of the action doctrine applied to breach of contract action.

Typically, under the gist of the action doctrine, courts have held that negligence claims cannot be pursued based on facts that confirm that the gist of the action actually involves a breach of contract claim.

In this case, the Superior Court was addressing the opposite situation, that is, whether the gist of the action doctrine prevents a Plaintiff from proceeding on a breach of contract claim that is actually based upon facts that give rise to a negligence claim.

Despite a number of prior cases confirming that the gist of the action doctrine does apply in breach of contract cases, this en banc panel of the Superior Court, after completing an exhaustive review of the gist of the action doctrine concluded that the doctrine does not apply to breach of contact actions.

Rather, the court noted that, under any set of facts, Plaintiff could make claims for both negligence and breach of contact where warranted.

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

The Concurring Opinion by President Judge Lazarus may be viewed HERE.

The Concurring Opinion by Judge Stabile may be viewed HERE.

The Concurring Opinion by Judge King may be viewed HERE.

Source of image: Photo by Andrea Piacquadio on www.pexels.com.

Philadelphia Trial Court Transfer Venue of Case to Wayne County

In the case of M.O. v. Lavco, LLC, No. 240800817 (C.P. Phila. Co. May 5, 2025 Anders, J.), the Philadelphia County Court of Common Pleas issued a Rule 1925 Opinion requesting the Superior Court to affirm its Order sustaining the Defendant’s Preliminary Objections to venue only and transferring the case to Wayne County.

According to the Opinion, this case arose out of a negligence claim asserted against a summer camp for children located in Wayne County, Pennsylvania. The details of the underlying incident were not provided in the Opinion.

The Defendant filed Preliminary Objections arguing that venue for the action was not proper in Philadelphia County.

After the parties completed discovery under venue issue, the court sustained the Preliminary Objections.

The court noted that, although the Defendant advertised itself to Philadelphia County residents, no Philadelphia County residents had attended the camp between 2020 and 2022, one child had done so in 2023, and two children had done so in 2024.

It was additionally noted that an organization based in Philadelphia County had paid funds to the Defendant to facility the attendance of dozens of campers at the Wayne County camp.

The court sustained the Preliminary Objections to venue and ordered that the case be transferred to Wayne County. The court noted that the Defendant’s registered office and principle place of business were not located in Philadelphia County, but rather, was located in Wayne County. The court otherwise found that the Defendant camp did not regularly conduct business in Philadelphia County.

It was additionally noted that the cause of action arose in Wayne County.

The court otherwise found that the quality and quantity of the Defendant’s contacts with Philadelphia County did not rise to the necessary level to subject the Defendant to venue in Philadelphia County.

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, 2025).

Article: The Appellate Ladder Looks Inviting For Plaintiffs

The below article of mine appeared in the July 24, 2025 edition of the Pennsylvania Law Weekly and is republished here with permission.

Expert Opinion

The Appellate Ladder Looks Inviting for Plaintiffs


July 24, 2025

By

Daniel E. Cummins

Recent decisions from the Pennsylvania Supreme confirm that plaintiffs continue to a pendulum shift in their favor. Over the past year, the Pennsylvania Supreme Court was beginning to show signs of moderation relative to their previous line of trailblazing decisions that overturned years of precedent in a plaintiff-favorable manner.

However, with its recent decisions, the Pennsylvania Supreme Court has again expanded the rights of injured parties to recover and have even telegraphed to the plaintiffs bar how to secure additional victories in the future.

Recent Decisions by Pa. Supreme Court to Expand Ability to Recover

For nearly the past decade, the Pennsylvania Supreme Court has issued one decision after another in favor of plaintiffs' causes. The plaintiffs bar has been repeatedly successful in convincing the court to overturn decades-long precedent that previously favored defendants.

For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Pennsylvania Supreme Court overruled the then-12-year-old Pennsylvania Commonwealth Court decision in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa. Cmwlth. 2006), to hold that PennDOT should only be immune from suit in guide rail claims in limited circumstances. Prior to Cagey, PennDOT was largely protected from any liability exposure relative to accidents involving guide rails. This decision expanded the ability of parties injured in highway accidents to include PennDOT in the lawsuit in the effort to seek an additional compensation.

In 2018, the Pennsylvania Supreme Court also expanded the ability of injured parties to seek recoveries by handing down another significant reversal of long-standing precedent. In the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Supreme Court liberalized the ability of injured parties to seek recoveries from governmental agencies.

The Supreme Court in Balentine overturned 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1). This ruling expanded the number of cases that would therefore fall within the scope of the exception to immunity. In other words, the ruling by the Pennsylvania Supreme Court allows more injured parties to seek a recovery against negligent governmental agencies.

A recent example of the Pennsylvania Supreme Court actually going too far in overturning long-standing defense-favorable precedent can be seen in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019). In Gallagher, the Pennsylvania Supreme Court overturned 20 years of precedent and held that the household exclusion found under automobile insurance policies was completely unenforceable as a matter of law across the board.

The Pennsylvania Supreme Court reiterated its plaintiffs-friendly stance on the household exclusion in the case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021). In Donovan, the court reaffirmed its previous decision in Gallagher v. GEICO and again held that plaintiffs need not worry about the household exclusion provision as it was invalid and, therefore, unenforceable.

The Gallagher decision threw the lower state and federal courts into a tizzy of conflicting decisions on whether the household exclusion should still be found to be enforceable under different factual scenarios.

Thereafter, without overtly acknowledging that the Gallagher decision went too far, the Pennsylvania Supreme Court walked back Gallagher’s complete eradication of the enforceability of the household exclusion in the case of Erie Insurance Exchange v. Mione, 289 A.3d 524 (Pa. 2023). In Mione, the Pennsylvania Supreme Court limited the Gallagher decision to its facts and agreed that the household exclusion did indeed remain valid and enforceable in at least certain circumstances.

The Pennsylvania Supreme Court also recently expanded the right of injured parties to recover in arbitration matters. In 2022, the court promulgated a new Rule that amended Pennsylvania Rule of Civil Procedure 1311.1, which applies to appeals from courthouse arbitration proceedings. Under the new Rule 1311.1, the Pennsylvania Supreme Court increased the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration award.

Under the old rule, that limit was set at $25,000. Under the new rule, the maximum limit has been changed to “an amount equal to the jurisdictional limit for compulsory arbitration of the judicial district in which the action was filed.” In most counties in Pennsylvania, the arbitration jurisdictional limit is $50,000. As such, the Pennsylvania Supreme Court essentially doubled the amount of money injured parties can potentially recover at trials following an appeal from an arbitration.

Recent Decisions That Limited Certain Defenses

In recent years, in addition to expanding avenues of recoveries for injured parties, the Pennsylvania Supreme Court has also benefited plaintiffs by limiting the scope of a wide variety of defenses in civil litigation matters.

In the case of Graham v. Check, 243 A.3d 153 (Pa. 2020), the plaintiffs were successful in convincing the Pennsylvania Supreme Court to limit the application of the sudden emergency doctrine. With this decision by the Pennsylvania Supreme Court, it is likely that the application of the sudden emergency doctrine will no longer be automatically applied in dart-out pedestrian cases, particularly where a plaintiff darts out within a crosswalk.

The Pennsylvania Supreme Court has also limited venue defenses by liberalizing the rules governing where a plaintiff may file their lawsuit.

In another the limitation of venue defenses, the Pennsylvania Supreme Court, in the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021), the Pennsylvania Supreme Court ruled that, given that the internet is available essentially everywhere, an internet defamation case may be filed anywhere in Pennsylvania, thereby allowing the plaintiffs to file such claims in the most liberal courts in Pennsylvania if they deem that appropriate.

Back in 2022, the Pennsylvania Supreme Court undid a 20-year-old Rule of Civil Procedure and approved plaintiffs-favorable amendments to the medical malpractice venue rules. Under the new medical malpractice litigation venue rules, plaintiffs now have wider options in terms of where they can file their medical malpractice lawsuits.

Hints at Moderation

In three recent decisions, all of which were expected to result in plaintiffs-favorable rulings, the Pennsylvania Supreme Court somewhat surprisingly went the other way.

As noted above, in the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Pennsylvania Supreme Court limited its previous decision in Gallagher v. GEICO on the household exclusion to the facts of that case. The court in Mione instead held that the household exclusion could still be enforced under limited circumstances.

Another example of a recent Pennsylvania Supreme Court decision that seemed to signal moderation was the case of first impression of Franks v. State Farm Mutual Automobile Insurance, ___ A.3d ___ No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.). In Franks, the court addressed issues of the stacking of UIM coverage in the automobile insurance personal injury actions. The court ruled that an insurance company is not required to secure another written waiver of stacked coverage from an insured in certain circumstances and rejected the plaintiff’s argument to the contrary.

Also, in a 2024 decision that was surprising to some, the Pennsylvania Supreme Court upheld the continuing validity of the regular use exclusion in the case of Rush v. Erie Insurance Exchange, ___ A.3d ___, 77 MAP 2023 (Pa. 2024).

Not So Fast

Despite hints at moderation, other recent cases again confirm that the overall orientation of the Pennsylvania Supreme Court is to favor plaintiff’s causes in most civil litigation matters.

This is confirmed, in part, by the court’s decision in the case of Brown v. City of Oil City, 294 A.3d 413 (Pa. 2023). With this decision, the Pennsylvania Supreme Court greatly expanded the ability of plaintiffs to bring lawsuits against construction contractors for personal injuries sustained at a construction site. The court in Brown allowed such claims to be brought even if the contractor had completed his or her work on the property years before.

Also, in its recent decision in the case of Steets v. Celebration Fireworks (Workers' Compensation Appeals Board), No. 3 MAP 2024 (Pa. May 30, 2025), the Pennsylvania Supreme Court overturned decades of precedent regarding whether specific loss benefits are payable after an employee’s death from causes related to a work injury. In this decision, the Supreme Court created new law and cleared the way for the estates of those individuals who died from work-related injuries to collect specific loss benefits.

Then, just last month, in the case of Jakmian v. City of Philadelphia, No. 266 EAL 2024 (Pa. June 11, 2025), the Pennsylvania Supreme Court denied an allowance of an appeal in a civil litigation matter, but Justice Kevin Dougherty issued a concurring opinion that invited plaintiffs to attempt to bring issues regarding the analysis of an exception to sovereign immunity back up the appellate ladder again so that the court could properly review the law on this topic.

In Jakmian, the plaintiff suffered injuries on a Philadelphia street after the front tire of her bicycle became stuck in a SEPTA trolley track that had been out of use for decades. The claims presented raised issues related to applicability of the real estate exception to the Sovereign Immunity Act.

In his concurring opinion, Dougherty seemed to signal that, if the issue were properly before the court, he would have ruled in a fashion that favored the injured party. However, he felt “constrained to agree that an allowance of an appeal is not warranted here.” Yet, Dougherty also wrote “nevertheless, I note my future willingness to explore the issues implicated herein if they arise in a more appropriate case.”

In the end, a review of recent jurisprudence in Pennsylvania confirms that the Pennsylvania Supreme Court is not only routinely ruling in favor of plaintiff’s causes but also seemingly inviting the plaintiffs bar to bring more issues up the appellate ladder for the court to consider. Now’s the time for the plaintiffs bar to get whatever important issues they can up to the Supreme Court as often as they can so as to make “good” law. Now is also the time for the defense bar and the carriers to resolve as many of those cases before they reach the Pennsylvania Supreme Court so as to avoid the creation of “bad” law.

Daniel E. Cummins is the managing attorney at Cummins Law where he focuses his practice on motor vehicle and trucking liability cases, products liability matters, and premises liability cases. He also serves as a mediator for the Federal Middle District Court and for Cummins Mediation. He is additionally the sole creator and writer of the Tort Talk Blog at www.TortTalkcom.

Reprinted with permission from the July 24, 2025 edition of the "The Pennsylvania Law Weekly © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.