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Kevin M. McGoldrick

Portrait of Kevin M. McGoldrick

Kevin is a shareholder with the firm's Casualty Department where he practices in the areas of premises liability, motor vehicle liability, UM/UIM litigation and medical provider fraud and special investigation as well as Personal Injury Protection (PIP) litigation. He has extensive experience in motor vehicle liability and auto negligence, premises liability litigation, as well as handling PIP litigation for several carriers.  He has successfully handled hundreds of cases ranging from motor vehicle accidents, UM/UIM litigation, PIP litigation and slip and fall liability.  His practice in the area of fraud investigation consists of assessing and analyzing fraud by both medical providers and falsified claims brought by his client's insureds.  He has handled countless auto negligence claims including M.I.S.T. cases involving minor impact soft tissue damage claims.  He has represented a broad range of individual carriers in a wide range of law suits, including some high exposure dealing with commercial carriers. 

In the course of his career, Kevin has taken several matters to trial, including many jury trials for both auto negligence and UM/UIM litigation.  He is also skilled in alternative dispute resolution forums including mediation and arbitration. 

After receiving his Bachelor of Science degree from Pennsylvania State University in Administration of Justice in 1994 where he was Deans List 1993-1994, Kevin completed an internship with the Abington Police Department where he was involved in multiple investigations and worked with detectives in questioning witnesses, obtaining evidence and providing information to prosecutors for criminal trials.  Kevin received his juris doctor from Widener University in Wilmington, Delaware, while attending the extended/night division program and maintaining a full -time position as a paralegal/law clerk for a plaintiff's personal injury firm.  Kevin participated and was a member of the Widener Law rugby team where he played for the four years he attended law school.  He received the Certificate of Achievement Award in Pre-Trial Methods for excellence in legal writing. 

Kevin is frequently asked by clients and industry organizations to lecture on a variety of topics concerning auto negligence law, UM/UIM litigation and PIP litigation.  He has lectured for various organizations including the South Jersey Claims Association, Camden County Bar Association and  New Jersey Special Investigators Association (NJSIA).

Kevin is an active member of the Swedesboro Woolwich Little League (SWLL) and volunteers his time coaching his children in softball, baseball and flag football. 

    • Widener University Delaware Law School (J.D., 2001)
    • The American Institute for Paralegal Studies (Paralegal Certificate, 1996)
    • The Pennsylvania State University (B.S., 1994)
    • New Jersey, 2001
    • U.S. District Court District of New Jersey, 2001
    • Pennsylvania, 2023
    • American Bar Association
    • Camden County Bar Association
    • New Jersey Special Investigators Association (NJSIA)
    • South Jersey Claims Association
    • Widener University School of Law Alumni Association
    • The Pennsylvania State University Alumni Association
    • Metrics Driven SIU UMBI, New Jersey Special Investigators Association (NJSIA), Atlantic City, NJ, July 2015
    • “New Jersey Appellate Division Rejects Contention that Ongoing Storm Rule Does Not Apply to Privately Owned Commercial Property,” Defense Digest, Vol. 29, No. 3, September 2023
    • “The Impact of the DiFiore Case on Defense Medical Exams,” Defense Digest, Vol. 28, No. 12, December 2022
    • "Superior Court or Forthright? That is the Question," New Jersey Law Journal, Automobile Law Supplement, January 27, 2016
    • "A Comparative Analysis Is Not Required Under AICRA Unless Aggravation Of Pre-Existing Injuries Is Pled As A Cause Of Action," Defense Digest, June 2007
    • Plaintiff tripped and fell on raised sidewalk in front of defendant’s private residence. Plaintiff suffered significant injuries including a displaced fracture of the shoulder and humeral head fracture requiring a complete shoulder reverse arthroplasty. Plaintiff’s demand was $750,000.  Defendants assert that it is undisputed that Defendants did NOT perform any work, maintenance or construction to the sidewalk prior to Plaintiff's alleged fall in May 2020, thereby, creating or exacerbating, a condition on the sidewalk which would have contributed to or caused the plaintiff's fall. The general rule is that a residential property owner owes no duty to keep a sidewalk abutting his property in repair. Norris v. Borough of Leonia, 160 N.J. 427, 431 (1999). While the Court has created an exception to the rule of non-liability in the case of an abutting commercial property owner as in Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981), it has consistently declined to extend that liability rule to abutting residential and non-profit owners. Additionally, New Jersey Courts have recognized that "[r]esidential homeowners can safely rely on the fact that they will not be liable unless they create or exacerbate a dangerous sidewalk condition…." Luchejko v. City of Hoboken, 207 N.J. 191, 210 (2011). The judge found that there are no genuine issues of material fact to support a theory of liability on behalf of Defendants and granted our motion for summary judgement. 
    • Secured stipulation of dismissal with prejudice in federal court for personal injuries alleged by plaintiff in an automobile accident. The  plaintiff was alleging to have sustained significant, permanent injuries as a result of a minor impact accident that occurred in a bank parking lot.  Filed a motion to dismiss after the plaintiff failed to cooperate and appear for multiple defense medical exams.  The magistrate agreed and dismissed the plaintiff's complaint with prejudice.
    • Successfully tried to verdict an automobile accident claim where plaintiff was seeking $125,000 originally when Complaint was filed.  Non-binding arbitration awarded plaintiff $45,000.  Minimal offer was extended and rejected by plaintiff.  Jury found for the defense confirming plaintiff did not pierce the verbal threshold pursuant to N.J.S.A. 39:6A-8 et seq.
    • Secured dismissal of two plaintiffs claims for personal injuries as a result of a slip and fall in a parking lot of the insured's business.  Plaintiffs were seeking $100,000 each for their alleged injuries.  Kevin filed a Motion for Summary Judgment arguing the "Snow in Progress Doctrine" and the Superior Court agreed that the insured did not have an obligation or duty to perform snow removal services during a significant snow storm. 
    • Secured dismissal of plaintiff's claim for personal injuries in a slip and fall in front of the insured's business.  Plaintiff suffered significant injuries including a dislocated and fractured wrist and head contusion.  Plaintiff was seeking $250,000 in damages.  Kevin filed a Motion for Summary Judgment arguing plaintiff could not establish any negligence on the insured through the proofs submitted into evidence.  Plaintiff was rendered intoxicated in the hospital records, knew of the existence of the alleged "hazard" beforehand and was the only eye witness to the fall.  The Superior Court agreed that the evidence did not support plaintiff's allegations and there were no issues of fact that a jury could conclude the insured was responsible for plaintiff's injuries. 
    • Secured voluntary dismissal from plaintiff for a PIP suit filed by plaintiff with her bodily injury claims.  Kevin was able to establish plaintiff had no standing to bring the suit against the carrier as the medical providers had taken an Assignment of Benefits from the plaintiff and pursued their claims for reimbursement in the Forthright Forum. 
    • Successfully resolved a claim for personal injuries in a trip and fall suffered at the insured's roller skating rink.  The plaintiff tripped over a coin left on the skating rink floor used in the arcade machines at the insured's business.  Plaintiff suffered a bimalleolar fracture to his ankle requiring surgery including plate and screws.  Plaintiff made a demand for $250,000 and the case resolved for $31,500 which included a health care lien and wage claim.  We were able to establish that the insured had no actual or constructive notice of the coin being on the floor and had adequate security and personnel on the floor at the time of plaintiff's floor. 
    • Obtained a defense verdict in Monmouth County on behalf of a trucking company and their driver in a serious motor vehicle accident.  The jury found no liability on Kevin’s client and thereafter, found plaintiff did not pierce the Verbal Threshold, pursuant to N.J.S.A. 39:6A-8, as to the co-defendant.
    • Obtained Summary Judgment on multiple PIP suits filed against the client/carrier based on the policy limits being exhausted pursuant to N.J.S.A. 39:6A-4.3. 

Results

Homeowner Not Liable for Sidewalk Fall in Front of Residence

We obtained a summary judgment on behalf of our client in a trip and fall matter where the plaintiff tripped and fell on a raised sidewalk in front of the defendant’s private residence. The plaintiff suffered significant injuries, including a displaced fracture of the shoulder and humeral head fracture, requiring a complete shoulder reverse arthroplasty. The plaintiff’s demand was $750,000. The defendants asserted that it is undisputed they did NOT perform any work, maintenance or construction to the sidewalk prior to the plaintiff's alleged fall in May 2020, thereby, creating or exacerbating a condition on the sidewalk which would have contributed to or caused the plaintiff's fall. The general rule is that a residential property owner owes no duty to keep a sidewalk abutting his property in repair. Norris v. Borough of Leonia, 160 N.J. 427, 431 (1999). While the court has created an exception to the rule of non-liability in the case of an abutting commercial property owner, as in Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981), it has consistently declined to extend that liability rule to abutting residential and nonprofit owners. Additionally, New Jersey Courts have recognized that "[r]esidential homeowners can safely rely on the fact that they will not be liable unless they create or exacerbate a dangerous sidewalk condition…." Luchejko v. City of Hoboken, 207 N.J. 191, 210 (2011). The judge found that there were no genuine issues of material fact to support a theory of liability on behalf of the defendants and granted our motion for summary judgment.

Thought Leadership

Defense Digest

New Jersey Appellate Division Rejects Contention that Ongoing Storm Rule Does Not Apply to Privately Owned Commercial Property

September 1, 2023

Key Points: The Appellate Division rejects contention that the “ongoing storm rule” does not apply to privately owned commercial property. Appellate court confirms that the holding in Pareja v. Princeton International Properties was not that the ongoing storm rule should apply only to public property. Appellate Division affirmed that commercial property owners, whether privately owned or publicly owned, “do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.”  In adopting this rule, the court relieved commercial landowners of the duty to continuously clear snow and ice from their properties throughout the duration of an inclement winter weather event.  In Smith v. Costco Wholesale, 2023 WL4307729 (N.J. Super. App. Div. July 3, 2023), the New Jersey Appellate Division upheld the ruling of the trial court that had granted summary judgment to the defendant, Costco, holding that the plaintiff could not establish the defendants owed her a duty of care under the ongoing storm rule adopted by the Supreme Court in Pareja v. Princeton International Properties, 252 A.3d 184 (N.J. 2021). The court held the plaintiff’s argument that the ongoing storm rule does not apply to privately owned commercial property lacked merit and that no exception to the ongoing storm rule applied. On March 7, 2018, Smith slipped and fell on snow and ice on the sidewalk in front of a Costco in North Plainfield, New Jersey, while exiting the store. On the day of the incident, the Governor of New Jersey had declared a state of emergency for all of the state due to inclement weather from a major snowstorm. Between 1:30 a.m. and 12:00 p.m., approximately one-half inch of snow fell. After 12:00 p.m., as the temperature settled at freezing, snowfall became heavy, accumulating at a rate of one-to-two inches per hour. By 5:30 p.m., the rate of precipitation started to lessen, ceasing entirely at approximately 8:30 p.m. A total of approximately eight inches of snow accumulated throughout the duration of the storm.  During the storm, Smith drove to Costco, parked, and went inside to shop. The storefront was not far from where she parked her vehicle. Her receipt demonstrated she left the store at 2:13 p.m. Carrying only her purse, Smith left the store to get her car, intending to drive it back to the entranceway in order to load the items she bought into her vehicle. She stated she was told by one of the store employees to leave her cart in the exitway of the store. As Smith walked to her vehicle, and before she entered the parking lot, she slipped backwards and fell in the area between the entrance doors and the red bollards, injuring herself. Smith stated there were several inches of snow on the ground when she fell.  Before the trial court, Smith argued that Pareja only applies to public property. The per curiam Appellate Division opinion, issued by Judges Richard J. Geiger and Maritza Berdote Byrne, agreed with Judge Lynott that the question of whether a sidewalk is public or private is immaterial to the Supreme Court’s holding in Pareja.  The Appellate Division stated, “[t]he New Jersey Supreme Court adopted the ongoing storm doctrine in Pareja, holding that ‘commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.’” In adopting this rule, the court relieved commercial landowners of the duty to continuously clear snow and ice from their properties throughout the duration of an inclement winter weather event.  The court opined that “[p]laintiff seems to derive the support for her argument from a single sentence in Pareja: ‘For the first time, this court considers the adoption of the ongoing storm rule, under which a landowner does not have a duty to remove snow or ice from public walkways until a reasonable time after the cessation of precipitation.’” “It is axiomatic ‘public walkways’ are not synonymous with public property.” Later in the Pareja opinion, the court held that “under the ongoing storm rule, commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.” “The first statement is merely a recitation of the issue,” the court held. “There is no indication anywhere in the opinion that the court intended to apply the ongoing storm rule only to public property, nor does logic or case law support such a conclusion.” The trial court also found no exception to Pareja was applicable, ruling that no evidence existed to prove that the defendants “exacerbated the risk of harm to the plaintiff,” other than the risk presented by the snowstorm itself, or that “a pre -existing condition, such as uncleared remnants of prior snow events, caused or contributed in any way to the [p]laintiff’s accident.” The Appellate Court noted that it was undisputed by the parties that Smith’s slip and fall occurred during the snowstorm. In fact, the storm did not end until many hours after she fell. Thus, the ongoing storm rule applied, relieving the defendants of any duty of care they may have owed the plaintiff. Smith argued the ongoing storm rule did not apply because her injury occurred on private property owned by the Costco defendants. In Smith’s view, Pareja was meant to apply only to incidents occurring on public property, not private property. The appellate court found this argument without merit, holding that, “[b]ased upon a plain reading of Pareja, there is no indication the Supreme Court’s ruling was limited in this manner.” Smith’s attorney has said that he intends to file for certification with the New Jersey Supreme Court. For now, the law for commercial property owners, whether privately owned or publicly owned, is that “commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.” In adopting this rule, the court relieved commercial landowners of the duty to continuously clear snow and ice from their properties throughout the duration of an inclement winter weather event. If the Supreme Court grants the plaintiff’s request for certification, then there is a possibility the court may adopt a new standard. Until then, commercial landowners can and will continue to rely upon the “ongoing storm doctrine” as a safe haven to protect them from liability exposure during an inclement weather event.  *Kevin is a shareholder in our Mount Laurel, New Jersey, office. He can be reached at 856.414.6406 or kmmcgoldrick@mdwcg.com.     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.

Defense Digest

The Impact of the DiFiore Case on Defense Medical Exams

December 1, 2022

Key Points: New Jersey Appellate Division holds plaintiffs bear the burden of justifying the presence of third parties or recording devices at defense medical exams. New Jersey Appellate Division issues guidelines for third-party recording in defense medical exams. New Jersey Appellate Division updates guidelines for defense medical exams. New Jersey Appellate Division rules that plaintiffs require court permission to record or have a third party observe independent medical exams. New Jersey Rule 4:19 permits an adverse party to require the party whose physical or mental condition is in controversy to submit to a physical or mental examination by an expert. Defense medical exams (DMEs) and the reports generated following the exam are often at the crux of developing a defensive strategy. Aside from the notice and scheduling requirements, the rule offers little in terms of the manner in which the exam is to be conducted. On May 3, 2022, the New Jersey Appellate Division decided the matter of DiFiore v. Pezic, 275 A.3d 58 (N.J. App. Div. May 3, 2022). The court revisited whether injured plaintiffs are allowed to bring a third party or a recording device to a DME. Prior to DiFiore, the Appellate Division had not addressed this issue since deciding B.D. v. Carley, 704 A.2d 979 (N.J. Super. App. Div. 1998), 24 years ago. In DiFiore, the Appellate Division reexamined this issue in three unrelated personal injury cases: DiFiore v. Pezic, Remache-Robalino v. Boulos, and DeLeon v. The Achilles Foot and Ankle Group. In all three cases, the plaintiffs had cognitive limitations, psychological impairments or language barriers, and plaintiffs’ counsel, over defense objections, requested that their clients be accompanied by a third party and/or be permitted to record the DME by audio or visual means. In all three cases, the trial courts issued different rulings on how the DME should proceed. In DiFiore, the trial court precluded the plaintiff from bringing a third party or recording the DME by video, but allowed her to make an audio recording of the DME. In Remache-Robalino, the trial court denied the plaintiff’s request to record the DME by audio means. Lastly, in DeLeon, the trial court denied the plaintiff’s request to have a third party at the DME and issued an order requiring the plaintiff’s DME to proceed unmonitored and unrecorded. All three decisions were appealed and consolidated by the Appellate Division. Upon review, and with participation of the New Jersey Association for Justice, New Jersey Defense Association, and Office of Attorney General, the DiFiore court held: A disagreement over whether to permit third-party observation or recording of a DME shall be evaluated by the trial judge on a case-by-case basis with no absolute prohibitions or entitlements; Despite the contrary language in B.D. v. Carley, it shall be the plaintiff’s burden henceforth to justify to the court that third-party presence or recording, or both, are appropriate in a particular case; Given the advances in technology since 1998, the range of options should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff; To the extend that examiners hired by the defense are concerned that a third-party observer or a recording might reveal alleged proprietary information about the content and sequence of the exam, the parties shall cooperate to enter into a protective order, so that such information is solely used for the purposes of the case and not otherwise divulged; If the court permits a third-party to attend the DME, it shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam; and If a foreign or sign language interpreter is needed for the exam, the examiner shall utilize a neutral interpreter agreed upon by the parties, or, if such agreement is not attained, an interpreter selected by the court. What we can take from DiFiore is that it now overturns the previous parameters set forth in B.D. v. Carley. Since 1998, Carley has long held that plaintiffs were entitled to have the DMEs recorded by an unobtrusive recording device. DiFiore notes what has often been questioned by Carly, that it offers little guidance as to the exams themselves, the manner in which they are to be conducted and what potentially could lead to conflicting trial court interpretation. The question becomes, does DiFiore provide more clarity than what has been in place for 24 years or does it leave more questions to be answered? Although it does not completely prohibit third-party observation or the recording of an examination, it does place the burden upon the plaintiff to justify the condition being sought in the event of a dispute between parties, and, thereafter, the court is to decide whether to permit the observation or recording on a case-by-case basis. By placing the burden on plaintiffs to establish special conditions that warrant the presence of third parties and recording devices, the court’s decision makes clear that the use of such measures is the exception rather than the rule. We expect that the presence of third parties and recording devices at DMEs will be limited to circumstances where the plaintiff is very young or very old, or where he or she has significant cognitive impairments, psychological problems, or language barriers that warrant the use of such measures. DiFiore comes more than two decades after Carley and reflects how litigation has changed since. The New Jersey Supreme Court has granted leave to appeal, and only time will tell if DiFiore becomes the new norm, or if the Supreme Court will fill in the gaps that the case leaves behind.

Firm Highlights

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.