On The Pulse...Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories, DD 12/07

Defense Digest

Chuck Craven (Philadelphia, PA) succeeded in persuading the Pennsylvania Superior Court to affirm the dismissal of the plaintiffs' complaint on preliminary objections in Molchany v. O'Neill (No. 44 EDA 2007, August 3, 2007). The complaint asserted claims involving one minor's furnishing alcoholic beverages to another minor. Chuck's brief was largely adopted by the unanimous three-judge Superior Court panel, which held that the trial court was correct and that the Superior Court had to affirm the trial court's decision because binding decisions of the Pennsylvania Supreme Court had precluded the claims asserted in the plaintiffs' complaint.

Chuck also succeeded in persuading the Pennsylvania Superior Court to uphold the summary judgment entered in favor of the insurer in Jones v. Foremost Insurance Company (No. 1525 MDA 2006, September 10, 2007). The case presented an underinsured motorist (UIM) claim by an insured, Mr. Jones, who was injured while using a utility trailer that was attached to his Chevrolet Suburban SUV. Jones had parked the SUV and trailer on the shoulder of a roadway adjacent to his front yard, and he was loading the branches, brush, and leaves he was clearing from the yard onto the trailer when another vehicle struck the rear of the trailer. At impact, the trailer broke free and hit Jones. After collecting the UIM coverage on the SUV, Jones made a claim for UIM coverage on a motorcycle which he owned and which was insured by Foremost. The Superior Court agreed that the claim against Foremost was not covered.

Kim Boyer-Cohen (Philadelphia, PA) successfully obtained the Pennsylvania Superior Court's affirmance of a judgment for the defendant in a breach of contract case on the basis that the claims were barred by the statute of limitations. The appellate court rejected the plaintiff's argument that the jury was inadequately charged on the subject of the statute of limitations and found no error in the court's instructions to the jury. Millan v. PetSmart Store #580, 751 MDA 2006 (Pa. Super. August 14, 2007).

Jim Gicking (Philadelphia, PA) obtained the dismissal of an appeal filed by ex-heavyweight champion Joe Frazier based on his counsel's failure to strictly comply with Pa.R.A.P. 1925(b)'s requirements for filing and serving a concise statement of matters on appeal. Mr. Frazier was appealing the dismissal, obtained by Keith Heinold (Philadelphia, PA), of his product liability claims against Chrysler LLC. Frazier sought to recover for his injuries in a 2002 accident that he alleged was caused be a stuck accelerator on the car he was driving. Frazier v. Gibson, et al. 1834 EDA 2006 (September 11, 2007).

Jim also obtained the dismissal of an appeal of a Monroe County trial court's verdict in his client's favor in a case involving claims for breach of contract, rescission, and violations of the UTPCPL in a real estate transaction. The Superior Court dismissed the appeal, finding that the appellant had substantially violated the procedural rules with respect to the number of issues raised, formatting of the brief, and the failure to adequately cite to the certified record to confirm that the issues raised had been preserved for review. Becker v. VFG-LaBar, et al., 2594 EDA 2006 (September 25, 2007).

Walt Kawalec (Cherry Hill, NJ) was recently successful in the Third Circuit Court of Appeals. In this case, a detainee at a local police station attempted to hang himself in his cell minutes after being placed there. Although the quick response of municipal personnel prevented his death, he was left with neurological impairment. The plaintiff sued both the arresting officer and the municipality, the latter on a failure-to-train theory. The Court of Appeals found that the plaintiff failed to establish any evidence showing that the detainee had any particular vulnerability to suicide and that, even if a substantial risk of suicide existed, the plaintiff failed to show that the arresting officer knew or should have know of this vulnerability to suicide. As for the municipality, the court held that the plaintiff failed to identify specific training which reasonably could have prevented the suicide attempt. Moreover, the expert testimony suggesting that closer monitoring could have prevented the attempt was insufficient because the detainee attempted suicide within minutes of his confinement and the police were not required to give him around-the-clock surveillance. Finally, the court held that the evidence did not establish deliberate indifference. For these reasons the court affirmed the summary judgment granted in the District Court. Joines v. Twp. of Ridley, 229 Fed. Appx. 161; 2007 U.S. App. LEXIS 15859 (3d Cir. 2007)

Further, Walt won a case before the Third Circuit Court of Appeals when a number of police departments and police officers were sued by the pro se plaintiff and his mother. The pro se plaintiff was a repeat sexual offender with a long history of violent criminal activity. He was in his mother's home and refused to come to the door when officers attempted to take him into custody for failing to register under Megan's Law and for loitering and prowling. The plaintiff's refusal to cooperate, and the officers' belief that he had barricaded himself in the residence and that he posed a threat to himself and others (including his mother, who remained in the residence), resulted in the decision to deploy the Tactical Response Team. The TRT successfully forced entry and took the plaintiff into custody without harm to anyone. The plaintiff's suit alleged a number of constitutional and state law claims. The court affirmed the grant of summary judgment on the grounds of qualified immunity and found that there was no merit to the remainder of the plaintiff's arguments. McCracken v. Freed, 2007 U.S. App. LEXIS 14646 (3d Cir. 2007).

Audrey Copeland (King of Prussia, PA) obtained a dismissal of the plaintiff's appeal of preliminary objections which had dismissed the plaintiff's fourth amended complaint on the basis of Pa.R.C.P. 1028(c)(1) and Pa.R.C.P. 1033. The Superior Court acknowledged that the plaintiff had untimely filed her fourth amended complaint without the consent of the court or parties after preliminary objections had been granted as to all parties as to the plaintiff's third amended complaint. The Superior Court also held that the plaintiff failed to timely appeal the order granting preliminary objections to the third amended complaint; thus, the order became res judicata and the fourth amended complaint, a nullity. Wilson v. Oaks, No. 534 EAL 2007 (Pa. Super., August 30, 2007).

Audrey also succeeded in having the Commonwealth Court issue a reported opinion concluding that an employer was not precluded from seeking Utilization Review of the workers' compensation claimant's chiropractic treatment where the employer had legally accepted the injury by issuing an Notice of Temporary Compensation Payable acknowledging the work injury and initiating payments. The court rejected the claimant's proposition that the employer could not seek Utilization Review of the claimant's treatment without first issuing a "medical only" Notice of Compensation Denial. Although the employer had not filed a "medical only" Notice of Compensation Denial while choosing to pay for medical bills, the employer's issuance of a Notice of Temporary Compensation Payable, followed by an Notice of Compensation Denial which challenged the length and extent of disability, served the same objective. In short, inasmuch as the employer initially issued a Notice of Temporary Compensation Payable, there was a clear record and full description of the injury; thus, this case was distinguishable from Orenich v. WCAB (Geisinger Wyoming Medical Center), 863 A.2d 165 (Pa. Cmwlth. 2004) and Waldameer Park, Inc. v. WCAB (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003). The court stated that the procedure followed by the employer was in accord with the Pennsylvania Workers' Compensation Act and served to put the claimant on notice of the parameters of the employer's acceptance of the work injury; satisfying Orenich and the Act. In a footnote, however, the court noted that, had the employer not issued an Notice of Temporary Compensation Payable, it would have agreed that the nature of the claimant's work injury was not established by the Notice of Compensation Denial and the employer would not have been entitled to a Utilization Review request. Armstrong v. W.C.A.B. (Haines and Kibblehouse), 2007 Pa. Cmwlth. LEXIS 484 (Pa. Cmwlth., August 27, 2007).