Appellate Advocacy & Post-Trial Practice

Kimberly Berman (Fort Lauderdale, FL) and Bradley Blystone (Orlando, FL) succeeded in obtaining a per curiam affirmance in the Fifth District Court of Appeal of a final order dismissing the plaintiff’s claim for violation of a nursing resident’s rights against a hospice care provider. After oral argument, the Fifth District affirmed the trial court’s finding that the hospice care provider had no duty to the plaintiff under Section 400.022, Florida Statutes. The claim was for vicarious liability against the hospice care provider’s nurses, and without complying with the pre-suit requirements of Florida’s Medical Malpractice Act, the claim could not proceed. 

Audrey Copeland (King of Prussia, PA) convinced the Pennsylvania Superior Court to affirm the trial court’s order sustaining the defendant’s preliminary objections to venue in Philadelphia County. The Superior Court affirmed that the defendant—a logistics company—has no physical location, nor undertook any direct action in Philadelphia, and performed its business of providing logistics services in Delaware County, which is outside of Philadelphia. There were no business activities in Philadelphia simply because other Philadelphia transportation companies were used to pick up the defendant’s customers’ cargo from a Philadelphia port, and hiring transportation companies was not in aid of a main purpose or necessary to the defendant’s existence. 

Audrey also convinced the Commonwealth Court to affirm the order of the Workers’ Compensation Appeal Board and workers’ compensation judge granting an employer’s termination petition. The court concluded the employer had not “re-characterized” the claimant’s injuries in arguing a full recovery as, although the purported symptom (limited mobility) was previously attributed by the judge in the claim petition proceeding to the then-existing lumbar strain, the judge found in the termination proceeding that there was a full-recovery from that strain, and that the current limited mobility was due to diabetes and advanced age. The court also rejected application of res judicata and the law of the case because the issues were not identical—the prior proceeding was a claim petition not a termination petition—and additional issues, including expert competency, were also decided in the employer’s favor. 

Christopher Woodward (Harrisburg, PA) and Thomas Specht (Scranton, PA) secured affirmance from the Third Circuit Court of Appeals of the Middle District Court’s grant of summary judgment in favor of the firm’s client. Our client/insurer had originally offered the UIM claimant the unstacked UIM limits of $300,000, but the claimant and insurer disagreed as to whether the claimant was entitled to stacked limits of $900,000. After the claim went into litigation—which included a claim for statutory insurance bad faith—Brigid Alford (Harrisburg, retired) and Chris recognized a threshold coverage issue (though living in the same household, the claimant and the named insured were not related by blood, marriage, or adoption; thus, the claimant did not qualify as an insured). Chris and Bridget litigated the claim and obtained summary judgment in favor of the insurer. On appeal, the Third Circuit agreed with Chris and Tom Specht that the UIM claimant did not qualify as an insured under the policy, and that, since the claimant was not an insured, there had been no breach of contract and no bad faith by the insurer.

Matthew Behr and Walter Kawalec (both of Mount Laurel, NJ) received a favorable decision from the Third Circuit Court of Appeals in a First Amendment case. The Court of Appeals affirmed the District of New Jersey’s denial of a preliminary injunction in which the plaintiff claimed that federal and local officials violated her First Amendment rights through censorship and retaliation after she posted comments on Facebook. In a published decision, the Third Circuit agreed with our arguments that the plaintiff lacked standing since she could not demonstrate a substantial risk of future harm specific to our client, the former chief of police of a local municipality, as well as the other co-defendants.

*Results do not guarantee a similar result. 

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_{Defense Digest, Vol. 31, No. 1, March 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.}