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

Walter Kawalec (Cherry Hill, NJ) successfully persuaded a panel of the Appellate Division to affirm the summary judgment in the Law Division. The case involved a nursing home liability matter in which the plaintiff, acting pro se after having his original counsel withdraw, failed to do any discovery or provide an expert report throughout the end of the discovery period. After repeated extensions of discovery, the court finally granted summary judgment due to a lack of a necessary expert opinion. On a motion for reconsideration, the plaintiff finally hired another attorney, who sought relief from the summary judgment based on the difficulty the plaintiff pro se had in finding replacement counsel. The Appellate Division affirmed the dismissal of the matter. Molnar v. LLMD Assocs., LLC, A-4416-09T4 (App. Div. 2011).

Walter Kawalec (Cherry Hill, NJ) successfully persuaded the Appellate Division to affirm dismissal, on grounds of the expiration of the statute of limitations, obtained by Douglas Alba (Cherry Hill, NJ). The plaintiff sought PIP benefits in the form of pain management and physical therapy of the plaintiff's right shoulder, even though the carrier had made its last payment for benefits regarding the injury more than two years before and had specifically stated in a letter to the plaintiff's counsel that no more payments would be forthcoming. The court held that this put the plaintiff on notice of the running of the two-year statute of limitations and the plaintiff's failure to file within that two years meant the claim was barred. Ramos v. Allstate, A-2131-09T3 (App. Div. 2011).

Chuck Craven (Philadelphia, PA) successfully moved for and obtained a summary affirmance from the Third Circuit in a bad faith case which Bill Foster (Philadelphia, PA) successfully handled in the District Court for the Middle District of Pennsylvania. The case involved a fire loss and claims that the insurance company acted in bad faith by not informing the insureds of the extent of their coverage and by failing to provide alternative housing for the insureds, one of whom had a pre-existing respiratory problem, which the smoke and soot from the fire allegedly aggravated. On the record developed during an intense and lengthy discovery process, Bill succeeded in demonstrating to the District Court that the insurance company had not misrepresented its coverage and that the company responded appropriately to the insured's loss and needs by quickly investigating the fire, promptly providing clean-up services at the insured's request and relocating the insureds as soon as the company became aware of the alleged health hazard. The District Court granted summary judgment to the insurer. On the plaintiffs' appeal, Chuck filed a motion for summary affirmance, arguing that full appellate briefing and oral argument were unnecessary and that the Court of Appeals should affirm the District Court's judgment because the District Court applied the proper decisional standard, and its decision was unquestionably supported by the facts of record and by established bad faith law. The Court of Appeals granted the motion and affirmed the District Court's judgment. Luse v. Liberty Mut. Fire Ins. Co., No. 10-3363, 2011 U.S. App. LEXIS 2725 (3d Cir. 2011).

Chuck Craven (Philadelphia, PA) succeeded in persuading a unanimous three-judge panel of the Pennsylvania Superior Court to affirm a judgment entered on the defense verdict, which William Banton (Philadelphia, PA) obtained at the conclusion of a lengthy and hard-fought trial. The case involved claims that our client was responsible for the mental abuse allegedly inflicted on the disabled and legally blind plaintiff by a personal care assistant, who admitted to having misused the plaintiff's credit card, a crime to which she confessed. The plaintiff's case emphasized the credit card theft as its main background in an attempt to persuade the jury to believe the plaintiff's claim of abuse and to reject the personal care assistant's denial that the alleged abuse ever happened. That tactic failed. The plaintiff and her family revealed their hostility in contrast to the assistant's contrite, calm and caring demeanor, and cross-examination destroyed the credibility of the plaintiff's expert against our client. The jury found no negligence on the part of the personal care assistant, no negligence of the co-defendant who employed the assistant or on the part of our client who funded the extra hours worked by the assistant as an employee of the plaintiff. On appeal, the Superior Court upheld our contentions that the plaintiff had waived her challenges to the jury's verdict and that, even without waiver, the plaintiff's claims of error lacked merit. Roscioli v. Maxim Healthcare Services, Inc., 773 EDA 2009, (Pa. Super. 2011).

Audrey Copeland (King of Prussia, PA) succeeded in obtaining the Superior Court's affirmance of a summary judgment in favor of a bar and restaurant secured by Tony Michetti (Doylestown, PA) in a dram shop case. The Superior Court held that the trial court did not err in finding that there was no material fact that the driver of the car in which the plaintiff was a passenger was served while visibly intoxicated. The evidence included testimony that the driver had played football and successfully participated in a poker tournament while at the establishment, had not acted abnormally and that the plaintiff and another passenger had no qualms about driving with him. The court held that the "relation back" report of the plaintiff's expert toxicologist based upon the driver's blood alcohol level, without corroborative evidence, did not create an issue of material fact requiring trial. Callahan v. Soncini's Bar and Restaurant, 3188 EDA 2009 (Pa. Super. 2011).

Audrey Copeland (King of Prussia, PA) persuaded the Commonwealth Court to affirm a summary judgment obtained by Jason Banonis (Bethlehem, PA) in favor of a food service provider at a county prison, which, along with the County and correctional officers, was sued by the plaintiff correctional officers for injuries allegedly sustained from exposure to the prison's "toxic mold" condition. The Commonwealth Court rejected the plaintiffs' arguments that discovery was not completed and that summary judgment was premature, reasoning that the plaintiffs were dilatory in obtaining discovery and that no additional discovery would create a material issue of fact. The claims against the food service provider were dismissed on the basis that it owed no duty to the plaintiffs because it was not the cause of the mold condition, which was instead caused by water leaking through the ceiling from showers, and which had pre-existed the food service contract. The food service provider also owed no duty on the basis of its contract with the County, which had retained all responsibility for maintenance and repairs, because it did not exercise any authority or control of the shower areas of the prison. Summary judgment was affirmed for the County on a number of bases, including the plaintiffs' failure to produce an expert on causation who would testify at trial. Ferraro , et. al. v. The County of Northampton, et al., 1496 CD 2010 9 (Pa. Cmwlth. 2011).

Audrey Copeland (King of Prussia, PA) secured the Superior Court's affirmance of the trial court's order sustaining preliminary objections asserted by Martin Coleman (Philadelphia, PA) on behalf of a defendant real estate agency and real estate agents in a case brought by the plaintiff/buyer of a foreclosed property, himself a real estate agent. The Superior Court's decision was in the form of a judgment order adopting the opinion and reasoning of the trial court. The sole involvement of the realtor and agents were as the agent for both the seller and the buyer, and the gravamen of the claims against them was that the agents had actual knowledge of a material defect in the property (a two-unit dwelling with an addition), an allegedly insufficient septic system. The claims against the agency and agents sounded in unfair trade practices, negligent misrepresentation and fraud, and suit was also brought against the entities which owned the subject property and its trustee and agent. The record showed that the plaintiff knew of the septic system prior to closing and that pursuant to the agreement of sale, the property was sold "as is," with the plaintiff buyer waiving all future claims regarding its condition. As the case developed, it became clear that the plaintiff was actually attempting to use the property, which was zoned and sold as a duplex, as a three-unit dwelling by converting the addition (for which a certificate of occupancy had not been issued) into a third unit, and was ultimately obliged to wall off the addition from the second unit in order to use the second unit. The trial court reasoned that the plaintiff had been unable to draft a legally sufficient Complaint despite three attempts to do so and that, even if the facts were construed in the light most favorable to plaintiff, he would not and could not be afforded any relief. Therefore, the court sustained the preliminary objections on other bases as well, such as the gist of the action doctrine. The Superior Court was apparently unmoved by the plaintiff's argument that the property had been misrepresented as a duplex because he could not use both units until he had walled off the addition. Huyett v. Kessler, 863 MDA 2010 (Pa. Super. 2011).

Kim Boyer-Cohen and John Hare (Philadelphia, PA) obtained a reversal of a bench trial verdict and entry of a judgment notwithstanding the verdict in a bad faith case. After his house and its contents were completely destroyed, the plaintiff commenced a lawsuit alleging that our client had acted in bad faith by delaying the payment of the plaintiff's fire loss claims. The trial judge entered a verdict in favor of the plaintiff and awarded him $10,192 in lost interest and $1.5 million in punitive damages and $500,000 in attorney's fees. The Pennsylvania Superior Court panel unanimously overturned the verdict and granted judgment notwithstanding the verdict to our client. In so ruling, the Superior Court determined that the evidence was such that no two reasonable minds could disagree that any delay in payment was reasonable and largely attributable to the plaintiff's failure to provide proper supporting documentation and that our client acted reasonably and in conformity with the policy.

Defense Digest, Vol. 17, No. 2, June 2011