A Northampton County trial judge has found that talking on a cellphone while driving is not egregious enough to warrant punitive damages in a motor vehicle accident case.

In Xander v. Kiss , Northampton County Common Pleas Court Judge Leonard N. Zito granted the defendant driver’s motion to strike the punitive damages charge against him.

“The Pennsylvania Supreme Court has held that punitive damages are an ‘extreme remedy,’ available in only the most exceptional matters,” Zito said, citing the high court’s 2005 ruling in Phillips v. Cricket Lighters . “In our view, the allegations in the amended complaint do not rise to the level of egregiousness required for a punitive damages claim.”

Daniel E. Cummins, a defense attorney with the Scranton law firm Foley Cognetti Comerford Cimini & Cummins who is not involved in Xander , said Zito may have ruled differently had there been a state law on the books banning talking on a cellphone while driving.

The legislature recently passed a law, SB 314, that will ban texting while driving when it takes effect later this year, but it doesn’t outlaw talking on a cellphone.

Cummins, who writes a column for the Law Weekly , said that if a law banning all cellphone use were in place at the time of the Xander decision, it would have presented a question as to whether Kiss had violated the law, which in turn might have supported a punitive damages award.

If such a law eventually passes, cases similar to Xander could see different outcomes, according to Cummins.

“In future opinions, that might alter the landscape of how courts are going to look at punitive damages claims based on cellphone use while driving, but so far it doesn’t look like they’re receptive to that argument,” he said.

Cummins said this could become a commonly litigated issue since cellphone use while driving is so prevalent.

In Xander , plaintiff Nancy Xander alleged in the amended complaint that defendant Dennis Kiss’ vehicle had crossed into her lane and hit her vehicle.

Xander asserted a negligence claim in Count I of the amended complaint and her husband, co-plaintiff Dan Xander, asserted a loss of consortium claim in Count II, according to Zito.

The plaintiffs, according to Zito, said in Count III of the amended complaint that punitive damages were appropriate, alleging that Kiss had crossed into Nancy Xander’s lane because he was talking on his cellphone while driving.

Zito disagreed with this assertion, however, saying Pennsylvania’s appellate courts have set a high bar for punitive damages.

In addition to the Supreme Court’s Phillips ruling, Zito cited the state Superior Court’s 1992 ruling in McClellan v. Health Maintenance Organization of Pennsylvania , which held that “exemplary damages are proper when the act which creates actual damages also supports insult or outrage, and is committed with a view to oppress or is done in contempt of plaintiffs’ rights.”

The McClellan court found punitive damages may be appropriate “when the act is done with reckless indifference, as well as bad motive,” but not “merely because a tort has been committed,” according to Zito’s opinion.

The court in McClellan alsosaid “evidence must demonstrate willful, malicious, wanton, reckless or oppressive conduct,” according to Zito’s opinion.

But Zito said none of those determining factors appear to have been present in Xander .

“Accepting all of the averments in the amended complaint as true, the defendant simply lost control of his vehicle while speaking on his cellular phone, causing a motor vehicle accident in which Mrs. Xander sustained damages in excess of $50,000,” Zito said. “While such allegations indubitably establish a prima facie claim for negligence, they fall short of establishing the defendant’s evil motive or reckless indifference to her rights.”

Zito said that while there was evidence in each of the cases the plaintiffs cited in support of their punitives damages claim that the driver was on a cellphone at the time of the accident, there were also other indicators of gross negligence or reckless disregard for the rights of others.

In the 2011 U.S. District Court for the Southern District of Mississippi case Gaddis v. Hegler , for example, the defendant driver was speeding, ignored two stop light warning signs, ran a light that had already been red for 10 seconds and crossed over two lanes of traffic before the accident occurred, Zito said.

Similarly, in the 2009 U.S. District Court for the Eastern District of Pennsylvania case Pennington v. King , the defendant truck driver was driving his tractor-trailer in a “wildly erratic manner that prevented the decedent from passing him,” according to Zito.

“There are no such indicia of recklessness in this case,” Zito concluded.

Kiss’ attorney, Gerald A. Connor of Margolis Edelstein’s Scranton office, said his firm has been noticing more and more claims for punitive damages in accident cases where the defendant drivers were alleged to have been using an electronic device, such as a cellphone or an iPad, at the time of the accident.

Connor said the ruling in Xander has the potential to be instructive in those types of cases going forward.

Xander’s attorney, Christopher Meyer Reid of Seidel Cohen Hof & Reid in Bethlehem, could not be reached for comment at press time. The ruling in Xander comes about eight months after a Lehigh County judge threw out an Allentown ordinance that banned using a cellphone while operating a vehicle, saying it was pre-empted by state law.

Last May, Lehigh County Common Pleas Court Judge James T. Anthony ruled in Commonwealth v. Steiner that, until legislators pass a statewide law, it would be impossible to uphold such an ordinance in Lehigh County.

“The legislature can certainly pass a statute specifically covering the use of cellphones while driving, and any other matters concerning distracted driving, but has yet to do so,” Anthony said.

Zack Needles can be contacted at zneedles@alm.com or at 215-557-2493. Follow him on Twitter @ZNeedlesTLI.

(Copies of the three-page opinion in Xander v. Kiss , PICS No. 12-0261, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m. Tuesday.)