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October 2017 
Thomas L. Mueller 
Lucas and Cavalier, LLC  

The Pennsylvania Superior Court may have temporarily assuaged some concerns caused by its controversial decision, issued on July 18, 2017, in Wilson v. U.S. Security Associates, Inc., et al., by withdrawing its original opinion and ordering en banc reargument of the case.
In its original decision, the unanimous three-judge panel tossed out a $38.5 million punitive damages award in the case popularly known as the "Kraft shooting case," which stemmed from a fatal shooting at the Kraft factory in Philadelphia, PA.
In the case, the plaintiffs initially sought punitive damages but later stipulated to strike from the complaint, without prejudice, the plea for punitive damages, including the words "reckless, outrageous, intentional, and/or wanton." Later, after the plaintiffs retained new counsel, they sought to reinstate the punitive damages claims, and the trial court allowed it. However, the Superior Court stated the plaintiffs were too late, as the statute of limitations had expired.
In the aftermath of the original Superior Court decision, attorneys from the plaintiffs' bar argued that the decision flew in the face of the 1983 Superior Court decision in Daley v. John Wanamaker, and its progeny. In Daley, the Superior Court held the decision to permit the amendment of a complaint on the eve of trial (and after the statute of limitations had run) in order to assert a claim for punitive damages is within the discretion of the trial court, as long as the amendment does not affect the pleadings and was only an addition to the ad damnum clause. In light of the original Wilson decision, the plaintiffs' bar feared new issues would be created at the preliminary objections stage, potentially costing many plaintiffs an avenue of damages.
Among the effects of the original decision, as feared by plaintiffs' attorneys, was a new urgency in pursuing punitive damages claims, creating the need for early or pre-complaint discovery on the issue, to ensure the cause of action is properly asserted and can overcome preliminary objections. Likewise, the decision was seen as a warning to plaintiffs' attorneys not to consider so easily stipulating to the removal of questionable punitive damages claims.
In their Application for Reargument, filed by Kline & Specter attorney Charles Becker, argued:
The risks for plaintiffs and their counsel are straightforward and mind-bending: either seek punitive damages before discovery has fully substantiated the claim and risk dismissal on preliminary grounds, or seek punitive damages after completing discovery and risk dismissal on limitations grounds.
In its Order granting reargument in the Kraft shooting case, the Superior Court set a new briefing schedule and ordered that the consolidated cases be listed before the next available en banc panel. Such panels are comprised of up to nine (9) of the fifteen (15) commissioned judges on the Superior Court.
            The attorneys at LUCAS AND CAVALIER, LLC continue to monitor this important case and are available to answer any questions arising from its development.

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