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On The Pulse…Marshall Dennehey Is Happy to Celebrate Our Recent Appellate Victories*

March 1, 2016

In this first-party breach of contract case against an insurer, Shane Haselbarth (Philadelphia, PA) succeeded in obtaining a unanimous victory in the Pennsylvania Superior Court, affirming the judgment for Marshall Dennehey’s client. The corporate plaintiff, who sells antique lighting fixtures, alleged smoke and soot damage from a nearby fire. It made a claim for insurance benefits for the remediation of its inventory, and the insurer issued a check for the whole loss. The plaintiff then sued for several hundred thousand dollars more in unpaid damages, supporting its case at trial with the testimony of its corporate owner, who explained his process of cleaning every light fixture by hand. The witness could only estimate his labor and material remediation costs, in contrast with the expert restoration witness the insurer relied on at trial, who explained a state-of-the-art, efficient method of cleaning the inventory, the cost for which was easily calculable. The trial court found in favor of the insurer, and Shane successfully briefed and orally argued the case before the Superior Court, resulting in an order affirming the judgment for the insurer. The Classic Lighting Emporium, Inc. v. Erie Insurance Exchange, 2015 Pa.Super. Unpub. LEXIS 4248 (Pa.Super. Nov. 17, 2015).

Audrey Copeland (King of Prussia, PA) convinced the Pennsylvania Commonwealth Court to affirm the decisions of the Workers’ Compensation Appeal Board and the Workers’ Compensation Judge that granted the employer’s termination petition as the employer met its burden in proving a full recovery from the work injury. The court found no error in denying a petition to review because: (1) the claimed disc herniation was not work-related; and (2) the judge issued a reasoned decision finding the employer’s expert more credible than the claimant’s expert, having explained the former’s superior qualifications and thorough physical examination. The judge did not err in finding the employer’s termination of the claimant to be reasonable as the judge did not credit the testimony of the claimant and his physician that the claimant’s contentious and threatening conduct was the result of a prescription drug prescribed for the work injury. Finally, the judge did not err in denying penalties as the notice stopping temporary compensation payable was timely filed and the claimant relied upon a “due” date that fell on a Sunday. Gower v. WCAB (Haines & Kibblehouse), 2015 Pa.Commw. Unpub. LEXIS 847 (Pa.Commw.Ct. Nov. 17, 2015).

Audrey also persuaded the Commonwealth Court to affirm the decision in the employer’s favor in Tipton v. WCAB (Pleasant Township), 2015 Pa.Commw. Unpub. LEXIS 876 (Pa.Commw.Ct. Dec. 7, 2015), which upheld the calculation of the employee’s wages as a volunteer firefighter based on an average weekly wage of $836. The court found that the statewide average weekly wage used to calculate benefits for volunteer firefighters was the same as the maximum compensation payable. Because the claimant earned less than the statewide average weekly wage, she was entitled to use that wage to calculate her compensation rate and, thus, received the proper compensation rate equal to two-thirds of the statewide average weekly wage. The court agreed with the employer that the claimant was not entitled to the maximum compensation payable as her compensation rate.

Carol VanderWoude (Philadelphia, PA) succeeded in obtaining a published affirmance by the Pennsylvania Superior Court of a non-jury verdict in favor of our client. The plaintiff alleged that a faulty drainage swale on the defendant’s property caused water damage to his property. The trial court listed the matter for trial on Monday, December 16, 2013. On Thursday, December 12, 2013, four days before trial was scheduled to commence, the plaintiff filed a praecipe to discontinue the case in an apparent effort to re-file the case at a later date since the alleged harm to his property was on-going. Because the plaintiff was unprepared for trial and intended to file another lawsuit at a later date, the defendant promptly moved to strike off the discontinuance in order to maintain its strategic advantage at trial. The defendant informed the plaintiff that it would present the motion on December 16, 2013. The plaintiff did not appear for argument on the motion. In the plaintiff’s absence, the trial court granted the defendant’s motion to strike off the discontinuance and proceeded immediately to a trial on the merits. At the conclusion of the trial, at which we presented expert testimony and other evidence, the trial court found in favor of the defendant. On appeal, the plaintiff argued that the trial court erred in entertaining and granting the defendant’s motion to strike off his discontinuance and proceeding with trial in his absence. The Superior Court rejected the plaintiff’s arguments and affirmed, finding no abuse of discretion in striking off the discontinuance given the plaintiff’s “apparent lack of diligence in prosecuting the matter, the eleventh hour discontinuance, and [defendant’s] preparedness.” The court also agreed with Carol’s contention that the plaintiff had waived his argument that the trial court erred in immediately proceeding to trial after striking off the discontinuance because no case law was cited in support of this argument. Becker v. M.S. Reilly, Inc., 123 A.3d 776 (Pa.Super. 2015).

Carol also successfully defended several other appeals before Pennsylvania’s intermediate appellate courts. In Ulmer v. L.F. Driscoll, Co., 2015 Pa.Super. Unpub. LEXIS 2968 (Pa.Super. Aug. 17, 2015), the plaintiff appealed the trial court’s denial of his motion to assert a direct claim against our client, a third-party defendant joined outside the applicable statute of limitations. The plaintiff argued that Rule 2255(d) of the Pennsylvania Rules of Civil Procedure authorized the filing of a direct claim. The Superior Court rejected this argument, holding that “Rule 2255(d) does not apply … when the applicable statute of limitations for the plaintiff to file suit has run at the time the third party defendant is joined to the action.” Although the plaintiff attempted to argue that he was prejudiced by the trial court’s ruling, the Superior Court concluded that Carol, on behalf of her client, “persuasively argue[d] that it would have likewise been prejudiced if the trial court had not corrected its January 9, 2013, order that erroneously permitted the filing of a direct claim beyond the expiration of the statute of limitations.” The Superior Court also accepted Carol’s argument that the plaintiff had waived his right to argue that the discovery rule applied to toll the statute of limitations because he “has not raised (or even mentioned) the discovery rule on appeal.”

In Johnson v. Ridley Twp., 2015 Pa.Commw. Unpub. LEXIS 853 (Pa.Commw.Ct. Nov. 18, 2015), Carol obtained an affirmance by the Commonwealth Court of a dismissal as a matter of law for the defendant borough. The plaintiff was injured on March 8, 2010, when a vehicle fleeing from police collided with his vehicle. Although media reports of the accident noted that multiple police jurisdictions were involved in the police chase, the plaintiff did not identify the borough defendants or file suit against them until after the statute of limitations had expired. The plaintiff argued that the discovery rule applied to toll the statute of limitations, but the trial court rejected this argument. The plaintiff’s investigation of the multi-car accident was limited to hiring a private investigator who investigated the matter in the month following the accident. No other investigation was undertaken by the plaintiff. On appeal, the plaintiff argued that a jury question existed as to whether his reliance on an investigator’s efforts constituted reasonable diligence warranting application of the discovery rule. The Commonwealth Court was not persuaded by this argument and affirmed the grant of summary judgment.

Lastly, Carol succeeded in obtaining an affirmance by the Court of Appeals for the Third Circuit of a dismissal for failure to prosecute. The plaintiff represented himself at trial against his former employer on claims of employment discrimination and retaliation. On the second day of trial, the plaintiff failed to appear. He claimed car trouble prevented him from getting to court, and he was not sure when he could next make it to court. The district court declared a mistrial and ordered the plaintiff to show cause why the case should not be dismissed for failure to prosecute. The plaintiff was specifically directed to show proof of his car trouble. Although he submitted some materials to the court in an effort to substantiate his claimed car trouble, the district court determined that those materials were insufficient to substantiate his claim and, thus, dismissed the case for failure to prosecute. On appeal, the plaintiff asserted that this dismissal constituted an abuse of discretion. The Third Circuit rejected that contention and affirmed the District Court’s ruling that dismissal was warranted in light of the plaintiff’s conduct and because of the prejudice to the defense. LeBoon v. Alan McIlvain Co., 2015 U.S. App. LEXIS 1426 (3d Cir. Oct. 5, 2015).

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*Prior Results Do Not Guarantee A Similar Outcome

Defense Digest, Vol 22, No. 1, March 2016

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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