Decision Drives Home Importance of Preserving Objections and Issues for Appeal

In its non-precedential decision in the case of Munoz v. Children’s Hospital of Phila., 1388 EDA 2024 (Pa. Super. May 27, 2025 Stevens, P.J.E., Panella, P.J.E., and Lane, J.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s denial of post-trial motions following a medical malpractice verdict in the amount of over $11.5 million dollars in favor of the Plaintiff.

Of note, the court ruled that a prior waiver of a preservation of an issue cannot be overcome by the trial court later addressing a waived issue in response to post-trial motions.

In this matter, the court ruled that, even though the Defendant hospital had not physically taken over the care of the decedent, who was still at a different facility, the Defendant hospital had funtionally done so by instructing the other facility’s staff on treatment measures. The Superior Court found that this was sufficient to create an assumed duty under the Restatement (Second) of Torts §323.

The weight of the evidence claimed was found to have been waived by the defense by the failure of the defense to specifically identify the challenges to the weight of the evidence in the Defendant’s Rule 1925(b) statement.

The Superior Court additionally noted that, relative to the Plaintiffs’ emotional outbursts during the course of the trial, the Defendant neither asked for a curative instruction or a mistrial.  As such, that issue was deemed to have been waived as well.

Lastly, the court on appeal ruled that the $14 million dollar verdict was not excessive under the facts presented.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Commentary:  This decision reminds one of the importance of making sure all issues for appeal are preserved on the record.  

Issues that one wishes to take up on appeal should be repeatedly preserved during the pre-trial course of the matter and again at trial and again during the post-trial proceedings wherever possible and even if the issues were previously preserved.  Repeatedly confirm on the record, at every stage of the matter, that objections are continuing and that issues are being preserved for appeal.  

Don't worry about irking the trial court judge with repeated statements of a preservation of an issue for appeal by objection or otherwise.  Just keep going to bat for your client.

Keep in mind that trial court judges and appellate court judges will proactively look for opportunities to rule that an issue has been waived as part of their effort to avoid having to address an issue which may, in the end, require a matter to be tried all over again.

An attorney owes it to his or her client, and to herself or himself (in an effort to avoid any claims of legal malpractice), to repeatedly state on the record at every stage of the proceeding that you are preserving an objection or an issue for appeal so that there can be no finding by any judge that the issue has been waived. 

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Local Rule Adopted in Monroe County Regarding Submission of Exhibits at Hearings and Trials (Effective Today, July 1, 2025)

Here is a LINK to the new Monroe County Local Rule of Administration 5103, entitled “Custody of Exhibits. Special Provisions,” which goes into effect today, July 1, 2025.

This rule requires lawyers to put the exhibits that they intend to introduce during their hearing or trial on a USB flash drive.

The attorney presenting the exhibits will then either display the exhibit up on a screen in the courtroom, or provide paper copies of exhibits as duplicates of what is on the flash drive.

In any event, under the rule, the flash drive will be the exhibit that is introduced.

Under the rule, the presiding judge may waive the flash drive submission requirement for good cause shown.

It is noted that the rule has technical requirements for the maximum size of each file on the drive, that being 50 MB.

The rule also requires lawyers to save each exhibit as a separate file on the flash drive.

If an exhibit exceeds the 50 MB limit, it has to be split up.

The rule also requires that the flash drive have a separate file for an index of exhibits.

The rule otherwise specifies what audio, video, documents and photograph files must be used.

It has been reported that the rationale for the rule is that, on appeal, the record before the trial court will be transmitted electronically to the appellate court. Absent the use of the above procedure, any paper exhibits would have to be digitized by court staff before the record could go up on appeal, which puts a burden on the courthouse workers, especially when there is a large trial record.

It has been noted that the court is also trying to reduce paper storage in the courthouse.

Again, this rule goes into effect on July 1, 2025.

Note also that a similar local rule is already in effect in the Lackawanna County Court of Common Pleas.

Nursing Home's Effort to Have Lawsuit Dismissed By Virtue of an Arbitration Clause Denied

In the case of Perry v. Saber Healthcare Holdings, LLC, No. 2024-CV6608 (C.P. Lacka. Co. June 6, 2025 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed various Preliminary Objections filed in a nursing home malpractice case.

According to the Opinion, the Plaintiff sustained injuries as a result of a fall.  Thereafter, the Plaintiff, through his daughter pursuant to her Power of Attorney, asserted claims of negligence, breach of contract, and other claims against the facility.

Among other issues, the Defendant facility raised Preliminary Objections asserting that the cause of action filed was required to instead be submitted to binding arbitration pursuant to an arbitration agreement executed by the daughter at the time the father was admitted to the facility.

The court ruled that, since the Power of Attorney that the father provided to his daughter expressly stated that the daughter was not authorized to enter into any arbitration agreement on his behalf with any skilled nursing facility or personal care home, the daughter could not bind her father to any arbitration agreement.

Judge Terrence R. Nealon
Lackawanna County 

Accordingly, Judge Nealon found that there was no enforceable arbitration agreement in place. As such, the Preliminary Objection seeking to have this case transferred to arbitration was overruled.

The court otherwise ruled that certain negligence allegations submitted on behalf of the Plaintiff were not barred by the gist of the action doctrine even though some of the claims presented in this case were based in contract. The court found that the claim for negligent hiring, supervision and retention were collateral to the contract and not contingent on the breach of any terms of the admission agreement.

The court otherwise sustained the demurrer filed against the Plaintiff's claim for intentional infliction of emotional distress given that the Complaint did not allege conduct that was so outrageous in character and extreme in degree as to exceed all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community.

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

Trial Court Judge Addresses Post-Trial Issues Including Issues With Verdict Slip and With Bifurcation of Trial

In the case of Major v. Five Star Equipment, Inc., No. 2020-CV-3550 (C.P. Lacka. Co. May 9, 2025 Nealon, J.), the court addressed several post-trial issues after a defense verdict in a case involving a pedestrian who was hit by a motor vehicle.

Of note, the court addressed various issues raised with regards to the content of the Verdict Slip and factual cause questions, as well as with respect to the bifurcation of the liability and damages phases of the trial.

After providing a thorough review of the applicable law, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas ruled that there were no errors with regards to the content of the Verdict Slip and the various questions presented to the jury on that slip.

The court otherwise noted that the bifurcation of the trial was warranted under the circumstances presented in the case, including the fact that counsel had underestimated the number of days it would take to try the case during the pre-trial proceedings.

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


Source: “The Legal Intelligencer Weekly Case Alert” on www.Law.com (June 4, 2025).

Court Rules that Defendant's Summary Judgment on Plaintiff's Claims Also Eradicates Cross-claims by Co-Defendant

In the case Robinson v. Phila. Intern. Airport, 263 C.D. 2002 (Pa. Cmwlth. June 9, 2025 Fizzano Cannon, J., McCullough, J., and Hannah Levitt, J.) (Op. by Fizzano Cannon, J.), the court granted the interlocutory appeal and addressed Motions In Limine in a municipal liability personal injury case.

This matter arose out of a slip and fall incident at the Philadelphia International Airport.  The Plaintiff apparently took a trip prior to her flight.

In this appeal, the court noted that, where summary judgment had been granted against the Plaintiffs’ claims against the municipal Defendant, that Defendant could not be held liable for purposes of contribution or indemnity relative to the Co-Defendants.

The court more specifically noted that, where the municipal Defendant had secured summary judgment on the common law ground that it did not have actual or constructive notice of the condition on the land that the Plaintiff claimed was responsible for her injury, that Defendant likewise could not be held liable for indemnity on the cross-claims asserted by the Co-Defendants.

The Commonwealth Court additionally noted that, because the non-municipal Defendant did not oppose the municipal Defendant’s summary judgment motion against the Plaintiff’s claims, which claims were also the basis of the non-municipal Defendant’s crossclaims, that non-municipal Defendant was found to have waived any right to contest the granting of summary judgment.

That waiver and the entry of summary judgment precluded the non-municipal Defendant from later moving to have the municipal Defendant added to the verdict sheet under the Fair Share Act. This was so because the municipal Defendant, by virtue of summary judgment decision, had already been adjudicated as not being a joint tortfeasor with the Co-Defendant relative to the claims of the Plaintiff.

The Court ruled that a subsequent trial judge’s Order granting the non-municipal Defendant’s Motion In Limine to allow evidence against the municipal Defendant and to place it on the verdict sheet therefore violated the coordinate jurisdiction doctrine. As such, the court on appeal ruled that the non-municipal Defendant could certainly assert that it was not liable on the Plaintiff’s claims at trial, but that Defendant could not argue that the municipal Defendant was liable.

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


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Alex P on www.pexels.com.

Appellate Court Addresses Applicability if an Absolute Auto Exclusion in a Business General Liability Policy

In the case of Chris Eldredge Containers v. Crumb & Foster Specialty Ins., 2025 Pa. Super. 92 (Pa. Super. April 24, 2025 Lazarus, P.J., King, J., Lane, J.) (Op by. Lazarus, P.J.), the court addressed a coverage issue in this declaratory judgment action involving various coverage issues, including the applicability of an automobile exclusion in a business policy in a case involving an accident that involved a service truck driven by an employee of the carriers' insured.

The appellate court noted that it was proceeding under a de novo standard of appeal, meaning that it was not limited by the trial court's rationale and could affirm or reverse the trial court decision on any basis.   

The Pennsylvania Superior Court ruled that the absolute auto exclusion, which excluded coverage for bodily injury under the policy for any incident arising out of the use of an auto, was found to be ambiguous in the context of this policy and was, therefore, found to be not enforceable.

The Superior Court additionally ruled that the ownership clause in the absolute auto exclusion was found to be ambiguous when it failed to specify whose ownership, maintenance, use, or entrustment served to trigger that exclusion.

In the end, the appellate court reversed the trial court decisions and found that the carriers did owe a duty to defend and indemnify its insured under the facts presented.

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

Source: “Court Summaries” in the Pennsylvania Bar News By Timothy L. Clawges (June 9, 2025).

Source of image:  Photo by Vlad Deep from www.unsplash.com.