On the Pulse...Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories

Appellate counsel Audrey Copeland (King of Prussia, PA) obtained the Pennsylvania Superior Court's affirmance of a summary judgment secured by trial counsel, Christian Marquis (Pittsburgh, PA), in a case brought by a convicted murderer against a local city and its police department, which sought the return of his 2005 Dodge Neon. The plaintiff tried to avoid payment of the $30,000 in storage and towing fees that had accumulated from the time his car was impounded at time of his arrest. The trial court granted summary judgment on behalf of the city defendants and the co-defendant towing and storage facility. The Superior Court affirmed, finding that the plaintiff was collaterally estopped from pursuing his claim on the basis of a prior ruling in the criminal case that found he was responsible to pay the towing charge and storage fees. The plaintiff could not re-litigate the issue of who was entitled to possession of the vehicle and who was responsible for paying the towing and storage fees in his subsequent civil suit. Junak v. Junak Auto Repair and City of Aliquippa, et al., No. 1214 WDA 2012 (Pa. Super., January 11, 2013).

Audrey also persuaded the Commonwealth Court to affirm the favorable remand decision of the Workers' Compensation Judge, which terminated the claimant's benefits and denied penalties, obtained by Frank Wickersham (King of Prussia, PA) in Paz Y Mino v. WCAB (Crime Prevention Association), 1659 C.D. 2012 (Pa. Commw., February 26, 2013). The court held that the credited testimony of the defense expert IME physician that the claimant had fully recovered from work-related injuries was competent and sufficient to support the termination. The expert's testimony had pre-dated the court's amendment of the injury in a prior appeal, based upon factual findings of the original judge, to include an aggravation of pre-existing stenosis. On remand, the second judge considered the amended injury, credited the expert again and found a full recovery from all injuries as of the IME date. The expert's testimony was sufficient and competent for termination because he had unequivocally opined that there was a full recovery from these "new" injuries based upon a hypothetical question, even if he may not have believed that an aggravation had occurred. Although the expert acknowledged that the claimant had chronic back pain from stenosis, this did not render his opinion of full recovery invalid because he attributed that pain to a progression of the stenosis, not from trauma or the claimant's symptoms from his fall. Nor did his opinion conflict with the "aggravation" findings of the original judge, who had only found that the stenosis had become symptomatic, not that the fall caused a physical worsening.

Finally, Audrey obtained the Third Circuit's affirmance of the District Court's summary judgment for a defendant hotel (secured by trial counsel Joe Santarone (Philadelphia, PA) and Christopher Boyle (King of Prussia, PA) in a case alleging retaliatory and racial motivation in the plaintiff's termination from employment, brought pursuant to 42 U.S.C. 1981, 1983, 1985-86 and Title VII of the Civil Rights Act. The Third Circuit assumed, without deciding, that, even if a prima facie case of discrimination had been established by the plaintiff employee, the employer/hotel presented a legitimate, nondiscriminatory reason for his firing. The employee had used profanity in front of hotel guests, which was considered a critical offense justifying immediate termination. The court further reasoned that the employee failed to adduce evidence from which a reasonable jury could conclude that the proffered reasons were merely a pretext for discrimination.

Defense Digest, Vol. 19, No. 2, June 2013