Appellate Advocacy & Post-Trial Practice

Kimberly Berman (Fort Lauderdale, FL), Joanne Nachio (Fort Lauderdale, FL) and Amanda Podlucky (Orlando, FL) succeeded in obtaining a per curiam affirmance by the Sixth District Court of Appeal of a motion for summary judgment entered in favor of a rental manager. In granting summary judgment, the trial court found that the rental manager, which did not own the premises, did not owe the plaintiff a non-delegable duty and had no duty to maintain the exterior of the premises, pursuant to the owner agreement with the homeowner. The trial court also found that the guest failed to establish any genuine issue as to any material fact regarding an insufficiency or issue with the operation of the lighting of the porch on the property that would give rise to a breach of any possible duty. The court also provisionally granted the rental manager attorney’s fees upon the determination of the trial court at the conclusion of the case, pursuant to a proposal for settlement. Janice Dillard v. VHC Hospitality LLC d/b/a Vacation Home Collection, Luciana Pinto, and Terra Resort Villa Homeowners Association Inc., 2023 WL 3476507 (Fla. 6th DCA May 16, 2023). 

Audrey Copeland (King of Prussia, PA) convinced the Commonwealth Court to affirm the decisions of the Pennsylvania Workers’ Compensation Appeal Board and the Workers’ Compensation Judge in a matter denying the claimant’s request for reimbursement for the purchase of an entirely new residence by her parents to accommodate her work injury of paraplegia. Davies v. All My Children (WCAB), 1244 CD 2021 (Pa. Cmwlth. April 26, 2023). 

Audrey also obtained an affirmance from the Commonwealth Court of the Appeal Board’s order that affirmed the Workers’ Compensation Judge’s grant of the employer’s modification petition. The claimant had not established that the IRE was unconstitutional or that the IRE from the employer’s IRE physician was defective or that his testimony was incompetent. It was for the Workers’ Compensation Judge to weigh the evidence and credit the employer’s IRE over that of claimant’s IRE physician. Jay T. Tedesco v. Kane Freight Lines, Inc. (WCAB), 2023 WL 3561399 (Pa. Cmwlth. May 19, 2023). 

The Pennsylvania Superior Court accepted an appeal by permission at Audrey’s request and held in favor of our client, a non-profit continuing care retirement community, that it was error to dismiss additional defendants joined by our client to litigation that had been in progress for over two years. Joinder of additional defendants is permitted by Pennsylvania Rule of Civil Procedure 2253 within 60 days of the filing of a complaint or amended complaint, regardless of prejudice to the joined defendant. Aciavatti v. White Horse Village, Inc., 2023 WL 4346814 (Pa. Super. July 5, 2023).

Audrey and Michele Punturi (Philadelphia, PA) convinced the Pennsylvania Commonwealth Court to affirm the decisions of the Workers’ Compensation Appeal Board and the Workers’ Compensation Judge granting a petition to terminate benefits in favor of the firm’s client, the employer. The court found the Board did not err by affirming the judge’s finding that the employer established a change in the claimant’s medical condition, as the judge did not solely rely on the claimant’s testimony, but had credited the testimony of the employer’s medical expert of claimant’s full recovery. Cannon v. General Motors, 1089 C.D. 2022 (Pa. Cmwlth. August 23, 2023). 
 
Audrey and Andrea Rock (Philadelphia, PA) obtained a favorable decision for the firm’s client from the Commonwealth Court, which affirmed the Appeal Board’s order upholding the judge’s decision denying a claim petition. The court rejected the claimant’s argument that the judge’s decision did not meet the “reasoned decision” requirement of Section 422(a) of the Pennsylvania Workers’ Compensation Act and that the claim petition should be granted for at least a limited period. The court agreed with Audrey and Andrea that the judge did not arbitrarily and capriciously disregard the employer’s medical witness’ testimony, that the claimant had sustained a low back strain and sprain which had resolved at the time of his IME. The court observed that the judge discredited the claimant's testimony and rejected the existence of any work-related injury, and that the employer’s expert’s opinion was based on the false history provided by the claimant, which did not constitute an admission or competent evidence that a work-related injury occurred. Vazquez v. Arthur Jackson Co., 536 C.D. 2022 (Pa. Cmwlth. Aug. 4, 2023).

*Results do not guarantee a similar result.
 

 

_{Defense Digest, Vol. 29, No. 3, September 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.}