Appellate Advocacy & Post-Trial Practice

Michael Salvati, David Wolf, Shane Haselbarth, and John Hare (all of Philadelphia, PA) won a unanimous precedential decision from the Pennsylvania Superior Court that upheld the venue transfer of a significant case from Philadelphia to Butler County under the doctrine of forum non conveniens. The decision breaks a recent string of appellate reversals of venue transfers out of Philadelphia and distinguishes those contrary cases based upon the substantial record of hardship developed by Mike and Dave in the trial court. The decision also found that Mike and Dave satisfied the necessary showing of why the hardship witnesses were important to the case, a showing that was not even mandated until after Mike and Dave had built their trial court record. The decision has been reported as creating the new standard that defendants must meet to secure a venue transfer based upon forum non conveniens. Smith v. CMS W., Inc., 305 A.3d 593 (Pa. Super. 2023)

Walter Kawalec (Mount Laurel, NJ) succeeded in obtaining an affirmance by the Court of Appeals for the Third Circuit of a judgment as a matter of law for the firm’s client, a local school district. This was an employment discrimination case in which the plaintiffs alleged they suffered age discrimination and unlawful retaliation. The matter concerned the implementation of new rules for teachers’ evaluations. Under the new rules, certain negative performance evaluations would result in the referral of a tenure charge of inefficiency, which has the potential of resulting in the dismissal of the educator. In this case, a number of teachers who faced potential charges of inefficiency chose to resign rather than face tenure charges, as doing so precluded any negative impact on their pensions. Because those teachers resigned, they could not demonstrate that they suffered an adverse employment action, which is necessary to assert a viable discrimination cause of action. The mere fact that they received negative evaluations, without more, does not constitute adverse employment action, and their resignations precluded them from being discharged for inefficiency. The court affirmed the grant of summary judgment in the District Court. Goode v. Camden City School District, 2024 WL 107887 (3d Cir. Jan. 10, 2024).

Kimberly Berman, Jonathan Kanov, and Alan C. Nash (all of Fort Lauderdale, FL) succeeded in obtaining an affirmance by the Fourth District Court of Appeal of a venue order obtained by our client, a school board member. The plaintiff/petitioner/appellant, a convicted felon, had run for a seat on a school board before his rights had been restored and won the election but refused to be sworn in with the other newly elected board members. Since he failed to qualify and refused to accept the seat within 30 days, the Governor issued an executive order that declared a vacancy and appointed our client to the school board instead. The plaintiff filed a writ of quo warranto and a declaratory judgment action in Broward County, urging the trial court to void the executive order and order that the plaintiff take and hold the office of the school board immediately. The Governor and our client moved to transfer the case to Leon County based on the home venue privilege. The trial court granted the motion, and the Fourth District affirmed the nonfinal order on appeal. Velez v. DeSantis, 2023 WL 8636899 (Fla. 4th DCA Dec. 14, 2023).

Kimberly Berman (Fort Lauderdale, FL) and Andrea Diederich (Orlando, FL) obtained an affirmance by the Fifth District Court of Appeal for the firm’s client in an appeal of a nonfinal order denying the plaintiff’s motion to disqualify counsel. The plaintiff’s counsel moved to disqualify our firm and defense counsel for their communications with a post-incident treating physician employee/agent of the client’s owner during the course of a premises liability lawsuit. Our client argued there was no conflict of interest and no violation of the patient-physician privilege to communicate with a post-incident treating physician, who was also an employee/agent of our client. The trial court agreed and denied the motion. The Fifth District affirmed the denial of the nonfinal order on appeal and granted our client’s motion for appellate attorney’s fees on a provisional basis. Figueroa v. OHRI, LLC, 2024 WL 166910 (Fla. 5th DCA Jan. 16, 2024).

Carol Vanderwoude (Philadelphia, PA) and Ray Freudiger (Cincinnati, OH) and won a decision from the U.S. Sixth Circuit Court of Appeals, which affirmed a jury verdict in favor of their client, a municipal housing authority. After written briefing and oral argument, the Sixth Circuit affirmed the jury verdict in which the appellant developer failed to prove that the housing authority discriminated against it (in violation of ADA and FHA) by refusing to apply to HUD for VASH vouchers on behalf of the developer. The developer failed to prove it asked the housing authority for VASH on behalf of disabled persons, the request was not reasonable, and the request was not necessary to enable disabled persons to enjoy their residences as non-disabled persons could.

Audrey Copeland and Judd Woytek (both of King of Prussia, PA) successfully defended the claimant’s appeal from a workers’ compensation judge’s decision (that had been affirmed by the Workers’ Compensation Appeal Board), which found that the claimant’s temporary total disability benefits should be reinstated as of the date he filed his reinstatement petition based upon Protz following a pre-Protz IRE. 

*Results do not guarantee a similar result. 

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_{Defense Digest, Vol. 30, No. 1, March 2024, 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. © 2024 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.}