On The Pulse...Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories, DD, 6/08
Defense Digest
On The Pulse...Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories
Michael Panichelli (Philadelphia, PA) succeeded in having the Superior Court, sitting en banc, vacate a $600,000 judgment and award new trial in a premises liability case based on the tenant's claim that she had been exposed to, and emotionally traumatized by, a fellow-tenant masturbating in an apartment building vestibule, as a result of the landlord allegedly failing to provide for proper building security. The Superior Court's decision included a ruling that the plaintiff, on the retrial of the case, could not recover for emotional stress she supposedly suffered due to witnessing the lewd conduct because she had not sustained any physical injury and, as a matter of law, damages for emotional distress are generally not allowed in the absence of physical harm. Brito v. MAC International, Inc., (Pa.Super., 2050 EDA 2005, March 28, 2008) (with seven of the nine sitting judges joining in a majority memorandum opinion, one judge concurring in the result, and one judge not participating in the decision).
Michael Panichelli (Philadelphia, PA) succeeded in having the Superior Court affirm a summary judgment for two defendants in an asbestos case in which the plaintiff claimed that her late husband developed lung disease that caused his death as result of exposure to a caulking compound and roof coating that the defendants manufactured. The Superior Court ruled that the trial court correctly found that the plaintiff could not establish that the products in question were asbestos-containing products that could be identified as having been produced by the defendants and/or failed to establish that her husband's exposure to the products caused his lung disease. Andrezze v. Republic Powdered Metals (Pa. Super, 2844 EDA 2006, March 20, 2008).
Audrey Copeland (King of Prussia, PA) successfully obtained the United States Court of Appeal's partial affirmance of a summary judgment in favor of the City of Long Branch, New Jersey, in a religious land use case tried by Howard Mankoff (Roseland, NJ ) in a 3-2 decision. This case involved the plaintiff Lighthouse Institute's challenge to the City's zoning ordinance and superseding Redevelopment Plan, which did not include churches its permitted uses, as violative of the federal and state constitutions and the Religious Land Use and Institutionalized Persons Act, 40 U.S.C. §2000cc et seq. (RLUIPA). The Third Circuit affirmed the dismissal of the RLUIPA claim as to the Redevelopment Plan, holding that the "Equal Terms" provision of RLUIPA requires a plaintiff to show that it was treated less well than a secular organization that has a similar negative impact on the aims of the challenged land-use regulation. The court reasoned that Lighthouse was not treated on less than equal terms from secular entities, largely because of a New Jersey State statute which prohibits the issuance of a liquor license to establishments located within 200 feet of a church. The court also affirmed the dismissal of Lighthouse's Free Exercise claim as to both the Redevelopment Plan and the original C-1 Ordinance because its religious exercise was not burdened by that fact that it was excluded from this area of the City. The Third Circuit reversed the grant of summary judgment for the City as to Lighthouse's RLUIPA Claim as to the original, since superseded C-1 Ordinance, and remanded for damages for a closed period, however, it held that injunctive relief was moot. Lighthouse has petitioned the United States Supreme Court for a Writ of Certiorari. Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F. 3d 253 (3d. Cir. 2007).
Audrey Copeland (King of Prussia, PA) also attained several affirmances in several Commonwealth Court cases. In Bittner v. W.C.A.B. (Highmark Assisted Living), 1655 C.D. 2007 (Commonwealth Court, February 11, 2008), the court affirmed the denial of the claimant's Reinstatement and Review Petitions where the claimant alleged that she was disabled as a result of the work injury through no fault of her own, and where she was discharged for her own willful misconduct. The Commonwealth Court also found that the claimant failed to present substantial competent evidence in support of the Review Petition to amend the Notice of Compensation Payable. In Yvonne Redmond v. (W.C.A.B.) Rittenhouse Care Center, 1383 C.D. 2007 (Commonwealth Court, January 3, 2008), the Commonwealth Court affirmed the Judge's and Board's decision denying the claimant's Reinstatement Petition and the granting of our client's Petition for Termination. The Pennsylvania Supreme Court denied allowance of appeal in Schultz v. W.C.A.B. (Berks Water Technology), 566 EAL 2007 (Pa., March 12, 2008), a case which also had been affirmed by the Commonwealth Court.
Jim Gicking (Philadelphia, PA) obtained the Pennsylvania Commonwealth Court's affirmance of a grant of summary judgment in favor of Fairview Township and its police chief in a Section 1983 claim brought by a tow operator who was excluded from participating in the Township's towing program. Summary judgment, obtained by Matt Owens of our Harrisburg, Pennsylvania, office, had been primarily granted on statute of limitations grounds. The plaintiff argued on appeal that his civil rights claims were not time barred under a "continuing violations" theory, which was based on the towing company's multiple requests over a period of years to be reinstated to the program, some of them made after changes in the program and its requirements. The Superior Court was inclined to accept this argument, but affirmed based on our argument that the plaintiff had not been deprived of a constitutionally protected interest as an applicant for inclusion in the towing program. The court likewise rejected the plaintiff's equal protection challenge where there was no showing of an intent by the defendants to injure the plaintiff or to discriminate based on impermissible considerations. Allen v. Police Chief Bistline and Fairview Township Board of Supervisors, 1047 C.D. 2007 (Cmwlth Ct., February 13, 2007).
Kim Boyer-Cohen (Philadelphia, PA) successfully obtained the Pennsylvania Superior Court's affirmance of a grant of summary judgment in a suit for damages arising from injuries sustained in a fall. The plaintiff, who lived with her boyfriend in the residence he owned, claimed that her boyfriend created a dangerous condition when he removed a portion of the carpet from the top of the stairs causing her to trip and fall. However, the carpeting had been removed at least three months prior to her fall, and the plaintiff admitted that she was familiar with the condition of the carpet and the stairway, having traversed it hundreds of times since the portion of the carpet had been removed. As a result, the Superior Court agreed with the trial court and found that a duty on the part of the defendant was not present because the plaintiff knew or had reason to know of the condition of the carpet and the risk involved in traversing it. Peccina v. Corporale, 1092 EDA 2007 (February 21, 2008).
