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

Audrey Copeland (King of Prussia, Pennsylvania) successfully obtained the Pennsylvania Commonwealth Court's affirmance of a termination of workers' compensation benefits in favor of the employer, secured by Frank Wickersham (King of Prussia). At the employer's prompting, the court held that the claimant had waived her primary argument that the judge failed to recognize additional injuries from which she had not recovered as established by a prior termination proceeding in which her expert was held credible. The claimant's injury had not been specifically amended, nor had a review petition been filed, and because the claimant never asserted in her appeal form to the Workers' Compensation Appeal Board that the judge had erred by describing only her original accepted injury, the court determined that this issue was not preserved for appeal. The court also held that the employer's medical expert's testimony that the claimant was fully recovered from her work injury and that no objective findings supported her subjective complaints, constituted the necessary change of condition testimony to meet the employer's burden of proof on termination. Adams v. WCAB (Community Behavioral Health),1368 C.D. 2010 (May 19, 2011).

In another workers' compensation case handled by Audrey and Frank, the Commonwealth Court was persuaded to affirm the judge's grant of a termination and of the employer's petition to review utilization determination. Despite the fact the employer's IME physician had continued work restrictions on the claimant based upon her subjective complaints, the court found the physician had given sufficient testimony of a full recovery in that his final examination was normal. The court also rejected the claimant's argument that she could never fully "recover" because of her permanent anatomic changes due to her spinal fusion surgery. Peterson v. WCAB(Giant Food Stores, Inc.,2458 C.D. 2010 (May 4, 2011).

Audrey also secured the Superior Court's affirmance of the trial court's orders dismissing the plaintiff's professional liability complaint against a defendant law firm with prejudice and imposing sanctions. Tim McMahon (Harrisburg, Pennsylvania) originally obtained the trial court's dismissal and sanctions orders based on the plaintiff's willful spoliation of a computer hard drive during discovery. The hard drive was crucial evidence to show the timing of the plaintiffs' knowledge that they had a potential claim for professional negligence because it contained the husband plaintiff's notes concerning contemporaneous conversations with the defendant law firm regarding the underlying claim for which the firm had been hired. The court rejected the plaintiffs' arguments that the trial judge had sua sponte raised the spoliation theory and the defendant law firm had not sought dismissal on the basis of spoliation and further that the trial court abused its discretion by acting as an expert in deciding that a computer disk offered by the plaintiffs was an unacceptable substitute for the actual hard drive. The wife-plaintiff's assertion it was her husband who actually destroyed the hard drives was also rejected as a basis for reversal. Padadoplos v. Schmidt, Ronca & Kramer, P.C., 2011 Pa. Super. LEXIS 598 (May 5, 2011).

The jury verdict won by Mark Riley (King of Prussia, Pennsylvania) and subsequent denial of post trial motions was successfully defended on appeal by Audrey Copeland (King of Prussia, Pennsylvania) in the Superior Court in a slip and fall case brought by the plaintiff, a bread deliveryman, who fell on an open and obvious patch of ice on a common sidewalk area in front of the defendant supermarket during non-delivery hours while using an entrance reserved for customers. The court held that the trial court did not err by charging the jury as to trespasser liability, in addition to the duties owed to a business invitee, because the plaintiff failed to show how he could prevail in light of unrebutted evidence that he elected to walk on the visible and obviously dangerous ice when a shoveled path was available to him. Mancini v. Giant Food Stores, Inc., 3599 EDA 2009 (May 2, 2011).

Defense Digest, Vol. 17, No. 3, September 2011