Procedure

July 23rd, 2019 by Rieders Travis in Procedure

PROCEDURE-JURISTDICTION-REMOVAL-TIMING OF REMOVAL TO FEDERAL COURT Bolger v. Utermohlen, 2020 U.S. Dist. LEXIS 165133 (E.D. Pa. September 10, 2020) Wolson, J.  Plaintiff sued tortfeasor and underinsured carrier in same case in the Philadelphia Court of Common Pleas.  The Philadelphia court granted POs in part.  The court severed plaintiff’s UIM claim against State Farm and transferred her remaining claims to the Bucks County Court of Common Pleas.  The UIM claim against State Farm remained in Philadelphia County.  State Farm then removed the case against it to federal court.  This decision abrogated the “voluntary-involuntary” rule.  This is a rule that said a case that is not initially removable cannot become removable except by a voluntary act of the plaintiff, such as amendment of the pleadings or voluntary dismissal of the non-diverse defendant.  This court says that such a rule violates the 1949 amendments to 28 U.S.C. § 1446(b)(3).  Therefore, once the Philadelphia court separated the cases, State Farm could remove to federal court.  Any other reading violates the clear wording of the statute. PROCEDURE-MISTRIAL-SUA SPONTE Temple v. Providence Care Center, 2020 Pa. LEXIS 3841 (S. Ct. July 21, 2020) Wecht, J.  The…

PROCEDURE-FORUM NON CONVENIENS-MEDICAL MALPRACTICE

January 25th, 2018 by Rieders Travis in Procedure

Paige Moody and Khalil Tomlinson v. Lehigh Valley Hospital – Cedar Crest, 2018 Pa. Super. LEXIS 28 (January 18, 2018) Bowes, J.  Wrongful death and survival action sounding in medical malpractice was filed in Philadelphia.  The trial court transferred the case to Lehigh Valley on forum non conveniens grounds.  The Superior Court reversed and remanded for further proceedings consistent with the opinion.  A 17-month-old presented at Lehigh Valley Hospital with a history of vomiting and coughing.  She came under the care of physicians there.  After further doctor and hospital visits to various doctors and Lehigh Valley Hospital, the child was transferred to Children’s Hospital of Philadelphia by helicopter.  The doctors at Children’s Hospital performed a cardiac procedure and administered an overdose of versed, 10 times the proper dose.  The child died at Children’s Hospital eight (8) days later.  The burden to transfer on forum non conveniens grounds is a heavy one.  It must be shown that the chosen forum is either vexatious or oppressive.  Vexatious means that the plaintiff’s choice was intended to harass the defendant, even at some inconvenience to the plaintiff himself.  Oppressiveness requires a detailed factual showing…

DRAGONETTI-DAMAGES-PROOF OF WRONGFUL USE OF CIVIL PROCEEDINGS

October 19th, 2016 by Rieders Travis in Procedure

Miller v. St. Luke’s Uiv. Health Network, 142 A.3d 884 (Pa. Super. 2016).  “The question before us, therefore, is whether the trial court properly declined to instruct the jury that Dragonetti Act damages are presumed to flow from a defendant’s wrongful use of civil proceedings in favor of instructing, instead, that a plaintiff who proves wrongful use still carries the burden of proving resultant damages…We, therefore, dismiss Appellant’s challenge to the jury charge as meritless.”  In spite of the jury’s finding of a violation of the Dragonetti Act, the jury had the right to find that there were no damages.  The court did not disturb the jury’s determination that there was no probable cause in pursuing the claim of wrongful use of civil proceedings.