Appellate Advocacy & Post-Trial Practice

Walter Kawalec and Carolyn Bogart (Mount Laurel, NJ) obtained a published decision in the New Jersey Appellate Division reversing the denial of a motion to dismiss because of a lack of duty. The plaintiff’s ex-husband drove through the gate at a large, high-rise apartment complex, waited for plaintiff to arrive, and then shot her in the face. Our client was the former management company, which ceased its management obligations 17 days before the shooting, when a successor management company took over. The plaintiff argued that our client was negligent based on procedures for securing the lot that it put in place when it managed the property. We sought summary judgment, arguing a lack of duty due to the expiration of the management contract. The Law Division judge denied that motion, asserting there were genuine issues of fact and that the jury had to decide whether a duty existed. We first persuaded the Appellate Division to grant interlocutory appeal and then successfully argued for a reversal. First, the Appellate Division agreed with us that the trial judge erred by holding that the existence of a duty was a jury question and not a matter for the court to decide as a matter of law. Second, the Appellate Division held that since our client no longer had any rights or responsibilities over the security of the premises when the shooting happened, and because there was no indication that the successor management company or the owner of the property could not have changed the procedures our client had put in place, the former management company owed no duty to the plaintiff and that summary judgment was, therefore, appropriate. Rivera v. Cherry Hill Towers, LLC, 2022 WL 17574169 (N.J. Super. App. Div. Dec. 12, 2022). 

Audrey Copeland (King of Prussia, PA) convinced the Commonwealth Court to affirm the order of the Workers’ Compensation Appeal Board, which itself affirmed the decision of the workers’ compensation judge, modifying the claimant’s benefit status from total to partial disability based upon an IRE obtained pursuant to Act 111. The court rejected the claimant’s constitutionality arguments, consistent with its precedent in Pierson v. W.C.A.B. (Consol Pa. Coal Co. LLC), 252 A.3d 1169 (Pa. Cmwlth. 2021) and Rose Corporation v. W.C.A.B. (Espada), 238 A.3d 551 (Pa. Cmwlth. 2020). The court found that the claimant’s benefits were validly modified in accordance with Act 111 irrespective of her work injury predating its enactment, and an employer credit against the 104-week period prior to Act 111’s effective date was properly applied. Johnston v. Sealed Air Corp., 2022 WL 17574355 (Pa.Cmwlth. Dec. 12, 2022). 

Audrey also convinced the Commonwealth Court to affirm a workers’ compensation judge’s decision. The judge had denied the claimant’s petition to review a Utilization Review (UR) determination and rejected the claimant’s argument that the judge was barred from ruling on UR petitions by the rules of collateral estoppel and issue preclusion. 

In another matter, Audrey persuaded the Pennsylvania Supreme Court to deny a claimant’s petition for allowance of appeal. In this workers’ compensation matter, the claimant challenged the constitutionality of Act 111 and its Impairment Rating Evaluation (IRE) provisions. 

Shane Haselbarth (Philadelphia, PA) and Joshua Brownlie (Philadelphia, PA) successfully obtained from the U.S. Court of Appeals for the Third Circuit, the affirmance of a district court order granting a township’s Rule 12 motion to dismiss. A panel of the the Third Circuit (Schwartz, Bibas and Phipps) unanimously affirmed an order of the U.S.D.C. for the Western District of Pennsylvania which granted a Rule 12 motion to dismiss in favor of our client, the township. The panel agreed with the appellees and concluded the District Court exercised proper discretion in dismissing the complaint since the plaintiffs failed to assert plausible claims of federal constitutional violations under 42 U.S.C. § 1983.

*Results do not guarantee a similar result.

 

_{Defense Digest, Vol. 29, No. 1, March 2023, is prepared by Marshall Dennehey 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. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}