Defense Digest
On the Pulse…Marshall Dennehey Is Happy to Celebrate Our Recent Appellate Victories*
Defense Digest, Vol. 27, No. 3, June 2021
June 1, 2021
*Results do not guarantee a similar result.
Kimberly Berman (Fort Lauderdale, FL) and Janice Merrill (Orlando, FL) succeeded in obtaining an affirmance by the Second District Court of Appeal of a directed verdict entered at trial in an action to hold Marshall Dennehey’s client, a welfare agency, vicariously liable for an alleged assault and battery by an employee who was terminated for forgery of the victim’s signature. The Second District rejected the plaintiff’s arguments that a new trial was warranted and affirmed the final judgment in favor of the defendant. Fields v. The Devereux Foundation, Inc., 2021 WL 49952 (Fla. 2d DCA Jan. 6, 2021).
Kimberly Berman and Jonathan Kanov (Fort Lauderdale, FL) succeeded in obtaining an affirmance by the Fourth District Court of Appeal of the dismissal with prejudice of Marshall Dennehey clients, a listing real estate agent and his broker, in an alleged negligence and fraud case. The Fourth District rejected the plaintiffs’ arguments that the trial court abused its discretion in dismissing their pleadings due to their attorney’s conduct and detailed how the plaintiff’s attorney dropped the ball in litigating the case, in a separate opinion reversing the plaintiffs’ attorney’s contempt conviction. Arnoul v. Perlstein, 310 So.3d 408 (Fla. 4th DCA Feb. 3, 2021).
Kimberly also succeeded in obtaining a dismissal by the Fourth District Court of Appeal of an appeal of an order denying emergency relief in Marshall Dennehey’s client’s action to foreclose a claim of lien and for damages and breach of contract against a former unit owner. The appellant attempted to revive an untimely appeal of a prior order by obtaining a new order to the same effect as the original and then filing the notice of appeal within 30 days of that most recent order. The Fourth District dismissed the appeal and granted entitlement to appellate attorney’s fees. Sawyers v. Lakeside Manor North Association, No. 4D21-225 (Fla. 4th DCA Apr. 7, 2021).
Audrey Copeland (King of Prussia, PA) persuaded the Commonwealth Court, sitting en banc, to affirm the trial court’s grant of summary judgment in favor of the defendant Borough, dismissing its former police chief’s claims for breach of contract and wrongful termination. The court held that civil service status is not conveyed to a police chief who is hired outside of the procedures in the Borough Code, and that the protections in Borough Code Section 1190 against removal are only available to a chief hired through the civil service noncompetitive examination and certification process in Section 1184(d). The Borough did not breach its employment contract with the chief when it eliminated the chief of police position, which effectively terminated him for other than “just cause,” because it was allowed by the contract, which provided a remedy of severance pay. Romutis v. Borough of Ellwood City, 246 A.3d 361 (Pa. Cmwlth. Feb. 10, 2021).
In another Commonwealth Court case, Audrey obtained an affirmance of the decisions of the Workers’ Compensation Appeal Board and judge that Section 440 of the Act only entitled the claimant to a partial reimbursement of costs incurred in litigating an expansion of his work injury. Since the judge’s decision was based solely on the employer’s credible expert witness and not the claimant’s own experts, the claimant could only recover reimbursement for the cost of employer’s expert’s deposition transcript. Pacheco v. WCAB (Nordstrom, Inc.), 2021 WL 1081434 (Pa. Cmwlth. Mar. 22, 2021).
Audrey also convinced the Superior Court to affirm the trial court’s order granting judgment on the pleadings to a co-defendant construction company and dismissing as moot its joinder complaint against Marshall Dennehey’s client. The church alleged water and moisture penetration into its building for over 20 years after the construction project was completed, and that it retained a contractor and engineering firm to investigate and repair the issues. The Superior Court panel concluded the church failed to timely commence its lawsuit within 12 years of the project’s completion in accordance with the Statute of Repose, and that the statute applied because the occupancy permit constituted record evidence indicating that the defendants lawfully performed the construction. The dismissal of the church’s UTPCPL claims was also affirmed. The Evangelical Lutheran Church Of The Atonement At Wyomissing, PA Appellant v. Horst Construction, Horst Construction Company and Horst Construction Management Company, 2021 WL 870734 (Pa. Super. Mar. 9, 2021).
Audrey was also successful in obtaining the Third Circuit’s affirmance of the district court’s decision that Gallagher v. Geico (Pa. 2019) did not apply to allow a UIM claimant who waived UIM coverage on his motorcycle (insured with Progressive), to obtain UIM coverage through the back door from his automobile insurer (Mid-Century Insurance Company). The auto policy excluded UIM coverage because the motorcycle policy did not have UIM coverage. The Third Circuit explained that this case was about waiver, not stacking, and also rejected the plaintiff’s argument that the number of vehicles on a policy has nothing to do with the rates. Dunleavy v Mid-Century Insurance Company, 2021 WL 1042981 (3d. Cir. Apr. 9, 2021).
