Appellate Advocacy & Post-Trial Practice

Carol VanderWoude (Philadelphia, PA) convinced the Commonwealth Court of Pennsylvania to reverse the trial court’s denial of motions for post-trial relief and to direct entry of judgment notwithstanding the verdict (jnov) in favor of Marshall Dennehey’s client. The plaintiff alleged he was injured while standing unsupported on a moving bus. He claimed that he lost his balance when the bus accelerated away from a bus stop and that he grabbed an overhead bar to keep from falling and injured his arm. The video showed only that the plaintiff lost his balance when the bus started moving. At trial, the defense moved for nonsuit and directed verdict, arguing that the evidence was insufficient, particularly in light of the video evidence, to overcome the jerk-and-jolt doctrine applicable to a passenger injured on a moving bus. Submission of a jerk-and-jolt case to a jury requires a sudden stop or jerk so unusual and extraordinary as to be beyond a passenger’s reasonable anticipation. The trial court denied our motions for nonsuit and directed verdict, as well as post-trial motions, having determined that the video evidence presented a jury question under the jerk-and-jolt doctrine. After independently reviewing the video evidence, the Commonwealth Court reversed and granted jnov to the defendant, pointing out that various of the trial court’s observations “were not supported by the video or testimony” adduced at trial. 

Carol and Aaron Moore (Wilmington, DE) obtained the Delaware Supreme Court’s affirmance of the trial court’s dismissal of a complex legal malpractice claim. The plaintiffs, seven affiliated companies and their owners in the business of developing property, had been sued by their bank for defaulting on multiple lines of credit. The bank filed multiple lawsuits against the property developers, claiming approximately $7 million in damages, plus attorneys’ fees, which were recoverable pursuant to the terms of the promissory notes. The property developers retained our client to defend the lawsuits, asserting that the amounts claimed to be owed to the bank were significantly overstated. Our client vigorously defended the bank’s underlying lawsuits. Ultimately, the property developers settled the bank’s lawsuits for the entire amount owed, plus interest, and the bank’s legal fees. The developers argued that its attorneys should have advised them to settle the bank’s claims after the lawsuits were commenced and that, if they had done so, they would not have had to pay the bank’s legal fees ($825,000), our client’s legal fees ($485,000), our expert witness fees ($335,000), or the additional interest on the loan. The property developers also claimed that not settling with the bank earlier caused them lost business opportunities valued at nearly $1 million. The plaintiffs’ legal malpractice claims were dismissed because their expert witness, a Maryland attorney with no business litigation experience, was not qualified to serve as an expert and because their damage claims were speculative.

Kimberly Berman and Matthew Wildner (both of Fort Lauderdale, FL) succeeded in obtaining an affirmance by the Fourth District Court of Appeal of a final order dismissing claims against Marshall Dennehey’s client, a professional engineer and his engineering firm, in a construction defect case in Florida. The appeal presented an issue of whether a non-supervisory engineer and his firm, who were retained by a third party to examine and inspect a contractor’s work, which third party then told the contractor to stop work, could be held liable for professional negligence. The trial court dismissed the professional negligence claims with prejudice, and without oral argument. The appellate court affirmed. 

Kimberly House (Philadelphia, PA) convinced the Pennsylvania Superior Court to dismiss the plaintiffs’ appeal of a judgment on a defense verdict for our client that was obtained by Allison Krupp (Harrisburg, PA). Our client issued a professional liability insurance policy to the plaintiffs, who were sued for legal malpractice. They notified our client of the suit and asked them to provide counsel to defend the matter. The plaintiffs never agreed to counsel proposed by our client. The plaintiffs then proceeded to mediation in the legal malpractice action and settled the matter without notifying our client. As a result, our client denied the plaintiffs’ request for indemnification. The plaintiffs brought suit for breach of contract and bad faith. In the trial handled by Allision, the jury returned a defense verdict, and the plaintiffs filed post-trial motions, which were denied. On appeal, the plaintiffs argued that the trial court erred in allowing the jury to see a copy of the insurance contract during their deliberations. The Superior Court dismissed the appeal, finding that the plaintiffs waived their argument by failing to cite to relevant legal authority in their appellate brief. The Superior Court also stated in a footnote that, should the court have reached the issue on appeal, it would have found it meritless because the insurance contract was a central piece of evidence to which the plaintiffs did not object during trial. 

Kimberly and Scott Gemberling (both of Philadelphia, PA) successfully defended the plaintiff’s appeal of a trial court decision sustaining a preliminary objection on the ground of improper venue. In the underlying case, the Philadelphia Court of Common Pleas found that venue was improper in Philadelphia County and ordered that the case be transferred to Centre County, and the plaintiff appealed. The Pennsylvania Superior Court, in a precedential decision, affirmed the trial court’s decision and found that there was no abuse of discretion. In support of its decision, the Superior Court found that the plaintiff’s arguments were unsupported by Pennsylvania law. The Superior Court, in finding waiver of an issue, quoted directly from the brief prepared by Kim. 

Audrey Copeland (King of Prussia, PA) obtained the Pennsylvania Commonwealth Court en banc’s affirmance of the grant of summary judgment on remand in favor of our client, which had been obtained by Patricia Monahan (Pittsburgh, PA). The court denied the plaintiff’s (a retiring police officer) claim for unjust enrichment and breach of contract regarding his pension benefits. It was the law of the case from the prior appeal that, although the plaintiff’s employment contract stated that he would be entitled to Act 600 pension benefits, he had an existing Act 15 pension pursuant to an ordinance under the Pennsylvania Municipal Retirement Law and the defendant Borough had never enacted an ordinance to establish an Act 600 pension. The Borough was not unjustly enriched by not providing the plaintiff with such a plan and, too, the Borough did not “fail” to contribute the plaintiff’s pension contributions to a pension plan. The court also upheld denial of the plaintiff’s breach of contract claim. 

Audrey also persuaded the Pennsylvania Superior Court to affirm the trial court’s transfer of venue from Philadelphia County to York County obtained by her and Edward McGinn (King of Prussia, PA) for our client. The court had found that our client had no Philadelphia presence, customers, or sales and was in the business of processing and packaging canned and frozen vegetables. The Superior Court found that importing raw vegetable material through the Port of Philadelphia and the use of third-party vendors to carry out the importation and transportation was analogous to the purchase of supplies and did not meet the standard of “regularly conducting business.” Venue was also not proper merely because the defendant’s products were offered for sale in Philadelphia stores. 

Audrey and Suzanne Utke (Philadelphia, PA) obtained the dismissal of the plaintiff’s appeal of judgment in favor of Marshall Dennehey’s client as the plaintiff and his attorney failed to file post-trial motions after the defense verdict. Therefore, they had waived all issues for appeal. 

John Hare and Shane Haselbarth (both of Philadelphia, PA) conduced a successful oral argument before the Supreme Court of Pennsylvania that resulted in the Court’s unanimous ruling to uphold statutory employer immunity on Pennsylvania construction sites. The six Justices who voted rejected the plaintiff’s arguments that such immunity should be overturned as antiquated and should be deemed waivable. Read more about this case in The Legal Intelligencer. 

*Results do not guarantee a similar result. 

---

_{Defense Digest, Vol. 31, No. 4, December 2025, 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. © 2025 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.}