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

December 1, 2016

Defense Digest, Vol. 22, No. 4, December 2016


In this data breach suit, Shane Haselbarth (Philadelphia, PA) succeeded in obtaining the Third Circuit’s affirmance of the District Court’s dismissal of the plaintiffs’ complaint with prejudice. The plaintiffs, on behalf of a class of employees and customers of Shane’s clients (medical and dental benefit providers), sued following a breach of the providers’ computer network by non-party, criminal hackers. The class members’ personal identifying information was stolen and used to file fraudulent tax returns, causing them monetary harm. The Third Circuit agreed that Pennsylvania law barred the tort claim because the economic loss doctrine requires allegations of personal injury or property damage in order to assert a cause of action for negligence. In addition, the Third Circuit held that the dismissal of the contract claim was proper because the complaint failed plausibly to state a claim that the defendants agreed contractually to protect the class members’ data from breach by hackers. Longenecker-Wells v. Benecard Services, 2016 U.S. App. LEXIS 15696 (3d Cir. Aug, 25, 2016).

Audrey Copeland (King of Prussia, PA) secured a decision from the Commonwealth Court in favor of the employer, a landscaping company, in a workers’ compensation “special mission” case. The claimant had borrowed his employer’s truck to drive home for his own convenience and offered to drop off his co-employee in Hagerstown, Maryland on his way home to Chambersburg, Pennsylvania. After leaving the co-employee’s home, the truck ran out of gas, and the claimant was struck by another vehicle while he was on the side of the road. The court held that the Workers’ Compensation Appeal Board and the Workers’ Compensation Judge erred in finding that the claimant was in the course and scope of his employment when injured. The judge had concluded that, because dropping off his co-worker benefitted the employer, the claimant was on a special mission. The court reasoned that, even assuming the claimant was on a special mission, that mission ended when he left his co-worker in Hagerstown. Therefore, the claimant was not on a special mission at the time of his injury. Classic Landscaping, Inc. v. WCAB (Ramos), 2016 Pa. Commw. Unpub. LEXIS 54 (Pa. Commw. Ct. Aug. 3, 2016).

In another workers’ compensation appeal, Audrey convinced the Commonwealth Court to affirm a termination of benefits based upon the claimant’s full recovery from the accepted injury. The court rejected the claimant’s argument that the employer’s medical expert did not acknowledge the accepted injury. Viewing the expert’s testimony as a whole, the court held it to be legally sufficient to support a termination. The expert’s skepticism regarding a work-related injury alone did not render his testimony incompetent, nor did snippets of his testimony examined outside of the context of his whole opinion affect its sufficiency. Betancourt v. WCAB (Excel, Inc.), 2016 Pa. Commw. Unpub. LEXIS 63 (Pa. Commw. Ct. Sept. 8, 2016).

Audrey also succeeded in having the Third Circuit affirm the District Court’s order granting the defendants’ motions to dismiss judgment in a case brought by a pro se prisoner against a private prison contractor, the prison warden and various federal agencies. The plaintiff contended that the prison and federal authorities refused to provide him with the services of a civil surgeon, which he needed for a medical examination in connection with his application for immigration relief. He sought to complete the immigration proceedings while serving his prison term so he would not be turned over to the Department of Homeland Security’s custody for additional detention once his sentence was completed. Among other things, the court held that the standard for mandamus relief was not satisfied and that there was no authority or a duty to provide the plaintiff with access to a civil surgeon. The plaintiff could not prevail on an Administrative Procedure Act claim against the prison contractor or warden because they are not “agencies” subject to the Administrative Procedure Act. Kalu v. Warden Moshannon Valley Correctional Center, 2016 U.S. App. LEXIS 16679 (3d Cir. Sept. 12, 2016).

*Prior Results Do Not Guarantee A Similar Outcome



Defense Digest, Vol. 22, No. 4, December 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

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