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Kimberly A. Boyer-Cohen

Special Counsel

KABoyer-cohen@mdwcg.com

Portrait of Kimberly A. Boyer-Cohen

Kimberly's legal practice is devoted solely to post-trial and appellate advocacy, dealing with a wide variety of substantive matters including professional malpractice, civil rights litigation, products liability, employment law and premises liability. In her capacity as an appellate attorney, Kimberly has handled over 150 appeals, including oral arguments when necessary before the Pennsylvania Superior Court, Pennsylvania Commonwealth Court, Pennsylvania Supreme Court and the Third Circuit Court of Appeals.
 
In 1992, Kimberly graduated from Penn State University with a B.S. in Labor and Industrial Relations. After working for several years in the area of human resources, she attended Temple University School of Law where she received her juris doctor in 1999. While at Temple, Kimberly was involved in the Moot Court Honor Society and the Women's Law Caucus and served on the executive board of both organizations.
 
Kimberly is admitted to practice in Pennsylvania and before the Third Circuit Court of Appeals and the Sixth Circuit Court of Appeals. She is a member of the Philadelphia Bar Association, where she is active in the Women in the Profession Committee and the Appellate Courts Committee. Also at the Pennsylvania Bar Association, Kimberly is involved in the Commission on Women in the Profession and the Post-Trial and Appellate Practice Committee.
 
Prior to joining Marshall Dennehey in 2001, Kimberly worked for a Philadelphia law firm where her practice focused on construction litigation, labor and employment law and defense litigation. 

    • Temple University Beasley School of Law (J.D., 1999)
    • The Pennsylvania State University (B.S., 1992)
    • Pennsylvania, 1999
    • U.S. District Court Eastern District of Pennsylvania, 2000
    • U.S. Court of Appeals 3rd Circuit, 2002
    • U.S. Court of Appeals 6th Circuit, 2006
    • Supreme Court of the United States, 2008
    • AV® Preeminent™ by Martindale-Hubbell®
    • Litigation Counsel of America Fellows
    • Pennsylvania Super Lawyer (2013-2022)
    • Top Women in Law, The Legal Intelligencer (2016)
    • Pennsylvania Bar Association, Commission on Women in the Profession
    • Pennsylvania Bar Association, Post-Trial and Appellate Practice Committee.
    • Philadelphia Bar Association, Appellate Courts Committee, Co-Chair (2009 to present)
    • Philadelphia Bar Association, Women in the Profession Committee
    • Preserving Issues In The Trial Court, NACLE, April 1, 2014
    • Professionalism in the Law, Villanova Law School, September 2012
    • Creating a Win-Win Mentoring Program for Female Attorneys and the Firm, American Conference Institute's Premier Conference on Retaining and Promoting Female Attorneys, May 22, 2007
    • “Pennsylvania Supreme Court Refuses to Expand Lawyer Liability,” Defense Digest, January 2021, Vol. 27, No. 1
    • “Occupant In a Fleeing Vehicle Is Not an Innocent Bystander…Or Is He?,” Defense Digest, Vol. 20, No. 1, March 2014
    • "Navigating The 1925(b) Minefield Of Waiver - The Pennsylvania Supreme Court's Attempt To 'Clarify The Confusion And Quell The Consternation'," Defense Digest, June, Vol. 14 No. 2, 2008
    • "Stipulating to Cap on Compensatory Damages Limits Potential Delay Damages," Defense Digest, March, Vol. 12 No. 1, 2006
    • "The Trend In Construing the Ohio Employer Intentional Tort Exception -A Consistent, Workable Standard or Confusing, Expansive Quandary?," Defense Digest, December, Vol. 9 No. 4, 2003
    • "Failure to Anticipate Potential Mail Delays May Result in a Party's Loss of Rights," Defense Digest, March, Vol. 8 No. 1, 2002
    • "A Taint of Evidence Claim of Error - It 'Taint' So Effective in Civil Cases'," Defense Digest, December, Vol. 8 No. 4, 2002
    • By a vote of 7-0, the Pennsylvania Supreme Court reversed the Superior Court and the trial court and ruled that Kim’s client, a general contractor, was immune from suit under Pennsylvania’s statutory employer doctrine.  The ruling nullified a large verdict against the general contractor.  Twenty-one construction and insurance industry groups joined together as amici to support John’s appeal to the Supreme Court.  Patton v. Worthington Associates, 2014 Pa. LEXIS 788 (March 26, 2014)
    • The Pennsylvania Superior Court dismissed a highly-publicized death case filed against Kim's client in Pennsylvania based upon the doctrine of forum non conveniens under Pennsylvania's long-arm statute, 42 Pa.C.S. § 5322(e).  Jones v. Morey's Pier Inc., No. 2990 EDA 2012 (March 10, 2014)
    • The Superior Court vacated a large judgment against Kim's client and remanded for the entry of judgment notwithstanding the verdict, finding that the plaintiff had failed to establish the store had actual or constructive notice of the allegedly defective condition.  Davis v. Target Corporation, 2098 EDA 2011 (Pa. Super., March 27, 2013).
    • In a case of first impression, the Pennsylvania Supreme Court reversed the en banc Superior Court's finding that "a patient does have a cause of action against either a psychiatrist or a general practitioner rendering psychological care, when during the course of treatment the physician has a sexual relationship with the patient that causes the patient's emotional or psychological symptoms to worsen."  The Pennsylvania Supreme Court granted allocatur limited to deciding "Whether, for purposes of determining professional negligence, a general practitioner who provides mental health treatment to a patient is held to the same higher duty as a specialist in psychiatry or psychology?"  After engaging in a very exhaustive review and analysis of the law in Pennsylvania, as well as other jurisdictions, the Pennsylvania Supreme Court held that as a general practitioner, Kim's client was under no specific or "heightened" duty in tort to refrain from sexual relations with his patient under the circumstances where he provided "incidental mental health treatment."  In doing so, the Supreme Court rejected the Superior Court's decision which held the doctor to a novel duty and standard.  Thierfelder v. Wolfert, 52 A.3d 1251 (Pa. 2012).
    • The Pennsylvania Commonwealth Court vacated a large judgment against Kim's client, a township, and remanded for the entry of judgment notwithstanding the verdict, on the basis that the trial evidence failed to demonstrate that the township was responsible for the decedent's death.  Rahman v. Falls Township, 2012 Pa. Commw. Unpub. LEXIS 126 (Pa.Cmwlth., January 6, 2012).
    • The Pennsylvania Superior Court reversed the ruling of the trial court and awarded a judgment notwithstanding the verdict, vacating a large verdict against Kim's client, a mutual insurance company, on the basis that the insurer's conduct in handling a fire damage claim did not constitute bad faith as a matter of law.  Edkin v. Brethren Mutual Insurance Co., 1331 MDA 2009 (Pa. Super., February 4, 2011)
    • he Pennsylvania Superior Court vacated an adverse jury verdict and remanded for a new trial in favor of Kim's client, one of the world's leading construction firms, in its claim for contractual indemnity. Skanska USA Buildings, Inc. v. Gory Mechanical Contractors, 345 EDA 2010 (Pa. Super., January 19, 2011)
    •   The Pennsylvania Superior Court affirmed the judgment of the trial court and upheld the dismissal of all claims against Kim's client, an investigating company, on the basis that the plaintiff, who was seeking workers' compensation benefits from his employer, failed to show that he had an expectation of privacy while participating in a worship service in a sanctuary. Tagouma v. Investigative Consultant Servs., 4 A.3d 170 (Pa. Super. 2010).
    • The Pennsylvania Superior Court vacated an adverse jury verdict and remanded for the entry of judgment notwithstanding the verdict in favor of Kim's client on the basis that  the trial court failed to make the threshold determination of whether an absolute privilege applied to the hospital's use of the plaintiff's confidential personnel file at a labor relations hearing involving unionization of nurses.  Moreover, the Superior Court determined that the record showed no evidence of abuse of that privilege and made clear the purpose of the disclosure was genuine and related to the NLRB proceedings. Doe v. Wyo. Valley Health Care Sys., 987 A.2d 758 (Pa. Super. 2009).
    • Successfully argued in the Superior Court that a methadone clinic, which took steps to regulate the dissemination of methadone in accordance with federal guidelines, did not owe a duty of care to a third party who lethally overdosed after buying methadone that was stolen from a patient of the clinic." to say "The Superior Court affirmed the grant of judgment in favor of Kim's client on the basis that a methadone clinic, which took steps to regulate the dissemination of methadone in accordance with federal guidelines, did not owe a duty of care to a third party who lethally overdosed after buying methadone that was stolen from a patient of the clinic.  McCandless v. Edwards, 908 A.2d 900 (Pa. Super. 2006)
    • Successfully argued in the Superior Court that dismissal of a medical malpractice complaint was required when the cause of action arose outside of Pennsylvania, even if the trial court has jurisdiction" to say "In a case of first impression, Kim successfully arged in the Superior Court that dismissal of a medical malpractice complaint was required when the cause of action arose outside of Pennsylvania, even if the trial court has jurisdiction.  Searles v. Estrada, 856 A.2d 85 (Pa. Super. 2004)

Results

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Dismissal of Legal Malpractice Action per Lease Agreement Dispute

We obtained the dismissal of a legal malpractice action against our client arising from its representation of the plaintiff in a lease agreement dispute. After the deadlines passed for completion of discovery and production of the plaintiff’s expert report, the trial court granted summary judgment in favor of our client on the basis that the plaintiff’s claim for professional negligence failed as a matter of law because the plaintiff failed to produce an expert report to support its allegations of professional negligence. On appeal, the Pennsylvania Superior Court affirmed the dismissal and rejected the plaintiff’s argument that it had been improperly sanctioned for a discovery violation. In support of its affirmance, the Superior Court found that summary judgment was properly granted because the plaintiff had been given ample time in which to satisfy its evidentiary burden of producing an expert report, but failed to act with due diligence and could not substantiate each element of its claim without an expert report. 

Dismissal of Legal Malpractice Action Obtained

The plaintiff brought a professional negligence claim against our client arising from the firm’s representation of the plaintiff in a lease agreement dispute. After the deadlines passed for the completion of discovery and the production of the plaintiff’s expert report, the trial court granted summary judgment in favor of our client on the basis that the plaintiff’s claim for professional negligence failed as a matter of law because the plaintiff failed to produce an expert report to support its allegations of professional negligence. On appeal, the Pennsylvania Superior Court affirmed the dismissal and rejected the plaintiff’s argument, that it had been improperly sanctioned for a discovery violation. In support of its affirmance, the Superior Court found that summary judgment was properly granted because the plaintiff had been given ample time in which to satisfy its evidentiary burden of producing an expert report but failed to act with due diligence and could not substantiate each element of its claim without an expert report. True Railroad Realty v. McNees Wallace and Nurick, LLC, _ A.3d _, 2022 PA Super 70 (April 19, 2022).

Thought Leadership

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Defense Digest

Pennsylvania Supreme Court Refuses to Expand Lawyer Liability

January 29, 2021

Key Points: Pennsylvania Supreme Court refused to adopt the continuous representation rule to toll the statute of limitations in a legal malpractice action. Statutes of limitations are legislative in character and consideration of tolling doctrines, such as the continuous representation rule, is most appropriately viewed as an exercise in statutory construction. By refusing to adopt a different rule for legal malpractice cases, this decision has strengthened the public policy of prompt claim resolution and eliminated the prospect of a lawyer's indefinite liability for stale claims. On December 22, 2020, the Pennsylvania Supreme Court issued an opinion in Clark v. Stover, _ A.3d _, 2020 WL 7502334 (Pa. Dec. 22, 2020), in which it refused to adopt the continuous representation rule to toll the statute of limitations in a legal malpractice action. Under the continuous representation rule, the applicable statute of limitations would not begin to run until the date on which the attorney-client relationship is terminated. Edwin Schwartz and Nicole Ehrhart, shareholders in our Professional Liability Department, litigated the case at the trial court level, and Kimberly A. Boyer-Cohen, special counsel in our Appellate Advocacy and Post-Trial Practice Group, was successful in defending that result before the Pennsylvania Supreme Court. David Clark brought claims of professional negligence and breach of contract against Jeffrey Stover, Esquire, and his law firm. Mr. Stover had represented Mr. Clark in an underlying estate dispute in which Mr. Clark sought to contest the will of his deceased brother. Mr. Clark's claims in the underlying action were dismissed on November 10, 2009, and he admittedly learned of their dismissal within one week of the order. Mr. Stover subsequently appealed the decision in the underlying action on Mr. Clark's behalf, but the trial court's dismissal of the claims was affirmed on May 19, 2011, and allocatur was denied on May 16, 2012. Mr. Clark did not commence his action against Mr. Stover and his law firm until October 1, 2015, at which time he alleged that Mr. Stover had failed to adequately prosecute the underlying action on his behalf. Upon Mr. Stover's motion, the common pleas court awarded summary judgment in favor of the defendants on the basis that the claims were untimely and barred by the applicable statutes of limitations. In doing so, the trial court found that Mr. Clark was aware of the alleged negligence and the asserted breach more than four years before filing the malpractice action such that the discovery rule and fraudulent concealment doctrine did not apply. On appeal, the Superior Court affirmed. The Superior Court also addressed Mr. Clark's request for adoption of the continuous representation rule to permit statutes of limitations for causes of action sounding in legal malpractice to be tolled until the attorney’s ongoing representation is complete. In rejecting Mr. Clark's request, the Superior court explained that it was bound by its previous rejection of the continuous representation rule in Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 442 (Pa. Super. 2003), aff’d per curiam, 881 A.2d 1266 (Pa. 2005). The Pennsylvania Supreme Court subsequently allowed discretionary appeal solely to consider whether to adopt the continuous representation rule. On appeal, Mr. Clark argued that strong policy justifications support the rule's implementation, including the client's entitlement to repose confidence in a lawyer's abilities, avoidance of disruption of attorney-client relationships and providing the opportunity for lawyers to cure mistakes before being sued. Mr. Clark also argued the continuous representation rule was favored by a majority of other jurisdictions. In response, Mr. Stover argued that adoption of the continuous representation rule would adversely impact the purpose of the statute of limitations—"to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims." With regard to policy, Mr. Stover explained that the longer four-year statute of limitations which applies to legal malpractice claims sounding in contract, as well as the discovery rule and the fraudulent concealment doctrine, already provides substantial protections to plaintiffs. Furthermore, application of the continuous representation rule would also serve as a disincentive for lawyers to remain involved in matters to attempt to remediate difficulties which may arise during the course of legal representation. Finally, Mr. Stover highlighted that the rejection or refusal to adopt the continuous representation doctrine is in keeping with the approach of many other jurisdictions and pointed out that, of the jurisdictions that apply a continuous representation approach, several limit the application to instances in which the plaintiff/client lacks knowledge of the alleged malpractice prior to the termination of the attorney-client relationship. The Pennsylvania Supreme Court agreed with Mr. Stover’s position. The court reasoned that statutes of limitations are legislative in character and that consideration of tolling doctrines, such as the continuous representation rule, is most appropriately viewed as an exercise in statutory construction. Notably, however, the Pennsylvania Supreme Court found that Mr. Clark's argument was entirely policy-driven and that he pointed to nothing in the relevant statutes that would militate in favor of application of a continuous representation approach. The Pennsylvania Supreme Court concluded that the appropriate balance should be determined by the General Assembly and affirmed the dismissal of Mr. Clark's legal malpractice claims. By refusing to adopt a different rule for legal malpractice cases, the decision in Clark has bolstered the public policy of prompt claim resolution and eliminated the prospect of a lawyer's indefinite liability for stale claims. As has historically been the case, the statutory period for a legal malpractice cause of action commences upon the happening of the alleged breach of duty and may only be tolled, in appropriate cases, by the discovery rule or the fraudulent concealment doctrine. The Pennsylvania Supreme Court's holding in Clark confirms the long-standing rejection of the continuous representation rule in the Commonwealth and makes clear that attorneys will not be subjected to a more stringent statute of limitations than other professionals. *Ed is a shareholder in our Harrisburg, Pennsylvania office and can be reached at (717) 651-3700 or easchwartz@mdwcg.com. Kim is special counsel in our Philadelphia, Pennsylvania office. She can be reached at (215) 575-2707 or kaboyer-cohen@mdwcg.com. Nicole, a shareholder, works in our Harrisburg office and can be reached at (717) 651-3512 or nmehrhart@mdwcg.com. Defense Digest, Vol. 27, No. 1, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin 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. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Legal Updates for Lawyers' Professional Liability

Pennsylvania Supreme Court Refuses to Expand Lawyer Liability

January 6, 2021

On December 22, 2020, the Pennsylvania Supreme Court issued an opinion in Clark v. Stover, _ A.3d _, 2020 WL 7502334 (Pa. Dec. 22, 2020), in which it refused to adopt the continuous representation rule to toll the statute of limitations in a legal malpractice action. Under the continuous representation rule, the applicable statute of limitations would not begin to run until the date on which the attorney-client relationship is terminated. Kimberly A. Boyer-Cohen, special counsel in our Appellate Advocacy and Post-Trial Practice Group, was successful in defending that result before the Pennsylvania Supreme Court. David Clark brought claims of professional negligence and breach of contract against Jeffrey Stover, Esquire, and his law firm. Mr. Stover had represented Mr. Clark in an underlying estate dispute in which Mr. Clark sought to contest the will of his deceased brother. Mr. Clark's claims in the underlying action were dismissed on November 10, 2009, and he admittedly learned of their dismissal within one week of the order. Mr. Stover subsequently appealed the decision in the underlying action on Mr. Clark's behalf, but the trial court's dismissal of the claims was affirmed on May 19, 2011, and allocatur was denied on May 16, 2012. Mr. Clark did not commence his action against Mr. Stover and the law firm until October 1, 2015, at which time he alleged Mr. Stover had failed to adequately prosecute the underlying action on his behalf. Upon Mr. Stover's motion, the common pleas court awarded summary judgment in favor of the defendants on the basis that the claims were untimely and barred by the applicable statutes of limitations. In doing so, the trial court found that Mr. Clark was aware of the alleged negligence and the asserted breach more than four years before filing the malpractice action such that the discovery rule and fraudulent concealment doctrine did not apply. On appeal, the Superior Court affirmed. The Superior Court also addressed Mr. Clark's request for adoption of the continuous representation rule to permit statutes of limitations for causes of action sounding in legal malpractice to be tolled until the attorney’s ongoing representation is complete. In rejecting Mr. Clark's request, the Superior court explained that it was bound by its previous rejection of the continuing representation rule in Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 442 (Pa. Super. 2003), aff’d per curiam, 881 A.2d 1266 (Pa. 2005). The Pennsylvania Supreme Court subsequently allowed discretionary appeal solely to consider whether to adopt the continuous representation rule. On appeal, Mr. Clark argued that strong policy justifications support the rule's implementation, including the client's entitlement to repose confidence in a lawyer's abilities, avoidance of disruption of attorney-client relationships and providing the opportunity for lawyers to cure mistakes before being sued. Mr. Clark also argued the continuing representation rule was favored by a majority of other jurisdictions. In response, Mr. Stover argued that adoption of the continuing representation rule would adversely impact the purpose of the statute of limitations "to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims." With regard to policy, Mr. Stover explained that the longer four-year statute of limitations which applies to legal malpractice claims sounding in contract, as well as the discovery rule and the fraudulent concealment doctrine, already provides substantial protections to plaintiffs. Furthermore, application of the continuous representation rule would also serve as a disincentive for lawyers to remain involved in matters to attempt to remediate difficulties which may arise during the course of legal representation. Finally, Mr. Stover highlighted that the rejection or refusal to adopt the continuous representation doctrine is in keeping with the approach of many other jurisdictions and pointed out that, of the jurisdictions that apply a continuous representation approach, several limit the application to instances in which the plaintiff/client lacks knowledge of the alleged malpractice prior to the termination of the attorney-client relationship. The Pennsylvania Supreme Court agreed with the position of Mr. Stover. The court reasoned that statutes of limitations are legislative in character and consideration of tolling doctrines, such as the continuous representation rule, is most appropriately viewed as an exercise in statutory construction. Notably, however, the Pennsylvania Supreme Court found that Mr. Clark's argument was entirely policy-driven and that he pointed to nothing in the relevant statutes that would militate in favor of application of a continuous representation approach. The Pennsylvania Supreme Court concluded that the appropriate balance should be determined by the General Assembly and affirmed the dismissal of Mr. Clark's legal malpractice claims. By refusing to adopt a different rule for legal malpractice cases, the decision in Clark has bolstered the public policy of prompt claim resolution and eliminated the prospect of a lawyer's indefinite liability for stale claims. As has historically been the case, the statutory period for a legal malpractice cause of action commences upon the happening of the alleged breach of duty and may only be tolled, in appropriate cases, by the discovery rule or the fraudulent concealment doctrine. The Pennsylvania Supreme Court's holding in Clark confirms the long-standing rejection of the continuous representation rule in the Commonwealth and makes clear that attorneys will not be subjected to a more stringent statute of limitations than other professionals.   The material in this law alert has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved.

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Firm Highlights

Thought Leadership

Not So Fast. . . The Limitations of the Pennsylvania RELRA in Plaintiffs’ Civil Actions Against Real Estate Broker and Licensee Defendants

Much has been made of the importance and weight of the Pennsylvania Real Estate Licensing and Registration Act, 63 P.S. §§ 455.101, et. seq. (RELRA or Act). After all, a real estate broker generally cannot recover any commission absent a signed agreement that complies with RELRA. But can a plaintiff rely on RELRA as a distinct cause of action in a civil action as to a real estate broker or licensee defendant? The Superior Court has emphatically held that he or she cannot. In the unpublished opinion P. Perez Real Est. Holdings, LLC et. al. v. Home Sale Real Est. Servs., Inc., et al., No. 256 MDA 2025, 2025 WL 35389888 (Pa. Super. Ct. December 10, 2025), the Superior Court held that the Act “does not contemplate private actions for money damages as an enforcement mechanism and consequently, does not create a private cause of action.” citing Schwarzwaelder v. Fox, 895 A.2d 614, 620 (Pa. Super. 2006). While the Act authorizes the Bureau of Professional and Occupational Affairs, State Real Estate Commission, to regulate the conduct governed by RELRA, the Act alone does not create a stand-alone legal cause of action as to a broker-defendant in a civil action. See P. Perez, citing Schwarwaelder at 620. Nor can it be stated that RELRA creates or imposes any legally cognizable duties on real estate brokers or licensees. While the Act contains and refers to general concepts of duty (e.g. the agent must “exercise reasonable professional skill and care which meets the practice standards required by this act” and “to deal honestly and in good faith” 63 P.S. §§606.1 (a)(1),(2), or the broker has a duty to the buyer of property to take “action that is consistent with the buyer’s interest in transaction.”  63 P.S. §§606.3 (1)), these general concepts are secondary to the duties imposed by the required written agreement between the broker and consumer. For example, in P. Perez, a case in which the buyers-plaintiffs argued that the real estate broker failed to investigate recent legislation that would affect buyer’s intentions to convert the property to commercial space, the agreement between buyer and broker contained the following provision in the “Buyer’s Due Diligence” clause: Buyer acknowledges that Brokers, their licensees, employees, officers or partners have not made an independent examination or determination of the structural soundness of the property, the age or condition of the components, environmental conditions, the permitted uses, nor of conditions existing in the locale where the property is situated. . . Accordingly, the broker defendants expressly disclaimed any duty to buyers to inform them or determine whether any applicable zoning classifications, laws, or ordinances in the township applied to the properties in question. Moreover, the Superior Court refused to read provisions of the Act into the Agreement, citing Skiff re Buss, Inc. v. Buckingham Review, LP, 991 A.2d 956 (Pa. Super. 2010). In defending civil actions it is important for the defense attorney to identify any causes of action predicated solely on RELRA. Preliminary objections may be warranted to the extent that the plaintiff asserts RELRA as a stand-alone cause of action for monetary damages, a position struck down by the Superior Court of Pennsylvania in P. Perez.  Moreover, any attempt to create or heighten duties as to the broker defendants may be countered by the general proposition that the courts will not inject the vague concepts of “reasonable professional skill” or “good faith” where the written agreement has express provisions regarding the duties of the parties. Ironically, although RELRA is an important Act with which all realtors, brokers, and licensees should be familiar to guarantee that their commissions are in fact timely paid, it is not a strong stand-alone mechanism for a plaintiff’s attempts to recover monetary damages in a civil action.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

Commonwealth Court Holds That a Claimant Who Was Struck By a Car While Crossing the Street During an Unpaid Break Was In the Course and Scope of Employment

This case involved a claim petition filed by a claimant who sustained injuries after being struck by a vehicle while crossing the street in front of the employer’s premises. The employer denied the claim based on course and scope, as the accident occurred during one of two mandatory fifteen (15) minute breaks provided to the claimant. The claimant would punch out at the beginning of a break and punch back in when the break was over.  On the date of the incident, the claimant punched out and left the building to get lunch at a restaurant, which required her to cross the employer’s parking lot, and then a public street, where the injury occurred. The Workers Compensation Judge (WCJ) dismissed the petition, noting that that during the two mandatory fifteen-minute breaks per shift allowed by the employer, the claimant was free to leave the employer’s premises, and during breaks, permitted to engage in whatever activity she desired. The WCJ found that at the time of the accident, the claimant was on her own time, in the middle of the street, and going to get lunch.   The claimant filed an appeal with the Worker’s Compensation Appeal Board (Board), and the Board reversed.  According to the Board, the claimant’s location was still on the employer’s premises, as the claimant was taking her customary route while using a reasonable ingress/egress from the employer.  Further, the Board found that the “Personal Comfort Doctrine” applied, as the claimant was on a momentary departure to take care of her personal comfort, within the window of time she was allotted for her break.  The Board remanded the case, and a WCJ granted the claim petition.  The Board affirmed, and the employer appealed to the Commonwealth Court. Before the Court, the employer argued that the claimant was not in the course and scope of her employment, because the injury did not occur on its premises, and the claimant was outside the bounds of the Personal Comfort Doctrine. The Court, however, rejected these arguments, and dismissed the employer’s appeal.  The Court noted that the break given to the claimant was so cursory, when she set out to relieve her hunger for her own personal comfort,  she remained in the course of her employment when she sustained her injuries.  A Petition for Allowance of Appeal in the Supreme Court has been filed by the Employer, Giant Eagle.

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

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Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

Jason Banonis Holds PDI Attorney of the Year Award with the PDI President

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Jason Banonis Named Attorney of the Year by the Pennsylvania Defense Institute

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

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Result

Summary Judgment Secured for Life Insurance Agent

Thought Leadership

Pennsylvania Superior Court Confirms RESDL Claims Are Subject to a Two-Year Statute of Repose

The Pennsylvania Superior Court recently concluded that claims under the Real Estate Seller Disclosure Law (“RESDL”) are subject to a two-year statute of repose running from the settlement date. This decision will further assist defending errors and omission claims against real estate agents as it bars any RESDL action commenced more than two years after the settlement date regardless of when the defect was discovered.  In Hollinger v. Deitrich, 2026 Pa. Super. LEXIS 328 (June 23, 2026), the buyers entered into an agreement of sale in April of 2017 to purchase a residential property. The settlement occurred in June of 2017. The buyers reviewed the seller disclosures that revealed the property had a sump pump in working order and a sump pit. The disclosures further noted no water infiltration into the basement, but disclosed rehab, an addition to the property and prior sewage backup.  Shortly after the settlement and closing, the buyers experienced flooding in their basement. In March of 2020, the buyers filed suit against the seller, the buyers’ real estate agent and broker and the seller’s real estate agent and broker alleging various causes of action including a violation of RESDL. The buyers alleged that they sought assurances from the agent defendants that no water infiltration occurred on the property. They further alleged that both agents lived in the area and should have known about the neighborhood water infiltration issues. The trial court granted summary judgment for the seller and the seller’s agents and dismissed the RESDL violation.  Relying on the Supreme Court’s decision in Gidor v. Mangus d/b/a Mangus Inspections, 345 A.3d 629 (Pa. 2025), the court explained that a statute of limitation begins to run from the time of the injurious occurrence or a discovery of the same. However, a statute of repose runs for a statutorily determined period after a definitively established event. Notably, a statute of repose eliminates a cause of action regardless of when the claim accrues. Because of this, a plaintiff may not invoke the discovery rule or other equitable tolling considerations.  RESDL requires that an action for damages, as a result of a violation of this chapter, must be commenced within two years after the date of final settlement. The court found that Section 7311(b) was clear and unambiguous that an action for damages pursuant to this chapter must be commenced within a certain time after a definitely established event that is independent of any injury or discovery of any injury. Since the buyers sued over two years after closing on the property, their statutory claims were time-barred. The court explained that the seller disclosure statement could not support common law or consumer protection claims, as using it would improperly expand remedies beyond the statute’s terms. Accordingly, the court upheld the trial court’s summary judgment ruling that the buyers’ claims under RESDL were barred by the statute of repose.  Accordingly, defense counsel should scrutinize complaints involving RESDL claims to ensure that such claims have been timely brought within two-years of the settlement date. A plaintiff will no longer be able to invoke the discovery roll to expand the time frame.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial