Professional Liability

The plaintiff alleged she had been removed from her position as the Township Building Code Official and demoted to a lesser position in retaliation for testifying before a grand jury investigating allegations of misconduct involving a mixed-use apartment complex being developed within the Township.

In a highly unusual move in a case with potential national implications, the Office of Disciplinary Counsel filed a petition for allowance of appeal seeking to have the decision of the Disciplinary Board changed from a private reprimand to a public reprimand. The defense successfully defeated this petition, thus maintaining the client’s privacy.

We successfully disposed of a defamation action via preliminary objections. The plaintiff brought a defamation action against a public school district and certain district officials, alleging that he was defamed through a series of internal text messages exchanged between an elementary principal and another parent. The defense raised several procedural violations that occurred in the pro se plaintiff’s filings, and also argued legal insufficiency by way of demurrer. Following oral argument, the court agreed, granted all preliminary objections, and dismissed the complaint in its entirety.

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. 

We successfully obtained dismissal with prejudice of federal civil rights claims brought against an Assistant District Attorney. The plaintiff alleged he entered an involuntary guilty plea to murder following a defective plea colloquy with a judge, who now sits on the Third Circuit Court of Appeals. The plaintiff alleged the transcript evidence of the colloquy was improperly altered by our client during his first post-conviction collateral proceeding, thereby resulting in violations of his Fifth, Sixth and Fourteenth Amendment rights. While recognizing the “quite sparing” application of common law immunities in Section 1983 litigation, the court accepted, and adopted, our argument that the Assistant DA was entitled to both absolute prosecutorial immunity and qualified immunity for his evaluation of the relied-upon transcript evidence. “Because nothing [Plaintiff] could allege would change this outcome, the Court’s dismissal [was] with prejudice.”

We convinced the Superior Court of Pennsylvania to unanimously reverse a Philadelphia trial court’s refusal to compel arbitration of a claim against a nationally recognized online coupon marketing platform. The plaintiff claimed the company was responsible for an alleged sexual assault during a massage that the plaintiff’s son purchased on the coupon platform and gifted to the plaintiff. The Superior Court ruled that the plaintiff was a third-party beneficiary of the agreement between her son and the company and she was, therefore, bound by the arbitration clause in the agreement.

We obtained summary judgment on behalf of our client, an amateur baseball league located in Monmouth County, New Jersey. In this matter, the plaintiff, an umpire assigner, filed a lawsuit alleging improper breach of contract, tortious interference and conspiracy to cut this assigner out of his company. The plaintiff also maintained a cause of action for emotional distress and punitive damages. On summary judgment, the defense argued that due to discovery deficiencies, as well inadequacies with the substantive claims alleged, the plaintiff could not state any material facts to surpass summary judgment. The court agreed, holding that the plaintiff failed to properly oppose the summary judgment motion and had not stated any facts in discovery that would support the claims of breach of contract or tortious interference, among others. The damages exposure of this case, prior to the dismissal, was approximately $10 million, especially considering the punitive damage potential in this matter.

We were granted summary judgment in a case involving a dispute between a religious denomination (our client), and one of its local churches. The client invoked its judicial process, allowing it to assume control of a local church due to declining membership. The pastor of the local church refused to vacate the parsonage. The local church asserted the denomination lacked the authority to assume control over it and argued that it was never actually part of the larger denomination. The issues involved First Amendment case law, which address whether and to what extent the courts can decide ecclesiastical disputes, and whether the religious denomination was a hierarchical church or a congregational church. The court accepted our argument that the local church was part of the denomination, that the denomination was hierarchical and that the First Amendment allowed the court to decide the dispute. The court granted our request to allow the denomination to assume control of the local church. 

Claims were brought against the state police organization and eight individual defendants (current and retired members of the state police). The plaintiff, a female State Trooper, alleged she was retaliated against for raising complaints about how male members of the State Police were treating other female employees and that her supervisors failed to take appropriate actions once her initial complaints were raised. She alleged she was denied promotion and transferred against her wishes in retaliation for making these complaints. The ruling was especially satisfying as the court had ruled on a prior summary judgment motion that a fact issue existed, and we had to convince the new motion judge not to follow the “Law of the Case” Doctrine and to decide the case based on the record presented in this motion. 

We successfully defended an appeal of summary judgment granted in favor of our insurance company client in the Kentucky Court of Appeals. The court agreed our client was entitled to challenge liability for the plaintiff’s claim and defend its insured, despite the requirements of the Kentucky Unfair Claims Settlement Practices Act.

We successfully defended a home appraiser in a regulatory investigation undertaken by the Pennsylvania Commonwealth Bureau of Enforcement relating to the appraisal of a five-acre parcel of property. The complainant contended the valuation arrived at by the appraiser (as part of a divorce proceeding) was artificially low given the fact the parcel was sub-dividable. We convinced the investigator that the appraisal number arrived at was in line with comparable properties in the area, particularly given some of the ingress issues involved in accessing the property. After an in-person interview of the appraiser and submissions, the investigator elected to shut the investigation down and take no further action against the appraiser. 

The investigation was undertaken by the Pennsylvania Commonwealth Bureau of Enforcement relating to the appraisal of a five-acre parcel of property. The complainant contended the valuation arrived at by the appraiser (as part of a divorce proceeding) was artificially low given the fact the parcel was sub-dividable. We convinced the investigator that the appraisal number arrived at was in line with comparable properties in the area, particularly given some of the ingress issues involved in accessing the property. After an in-person interview of the appraiser and submissions, the investigator elected to shut the investigation down and take no further action against the appraiser.

We obtained dismissal of a Financial Industry Regulatory Authority (FINRA) case in which the claimant was seeking in excess of $200,000 in damages. The dismissal was based upon FINRA’s rule setting forth a six-year eligibility period in which a claim may be arbitrated. The claimant made the investments at issue in 2015 but did not file his Statement of Claim until 2022. Claimant’s counsel argued that the “trigger date” for eligibility was in 2018, which is the date the claimant learned of an alleged Ponzi scheme involving the investments. We argued that the eligibility period began on the date of the investments in 2015. The three-member panel of arbitrators unanimously agreed with our position. Motions to dismiss are rarely granted because FINRA encourages its arbitrators to allow claimants the opportunity to present their case on the merits at an evidentiary arbitration proceeding.

We successfully defended a real estate agent in a suit brought by the agent’s former client. Our client represented the plaintiff in connection with her purchase of a residential property with an on-lot septic system in Adams County, Pennsylvania. Prior to her purchase, the plaintiff had the septic system inspected by a home and septic inspection company, and the system passed the inspection. Four months after the plaintiff closed and moved into the property, she decided to sell. The plaintiff’s prospective buyers once again had the septic system inspected, but this time the system failed the inspection. The plaintiff claimed she was advised by a local septic contractor who had serviced the property for years that the system likely failed the inspection because the drain field would not perc (and had failed to perc many times in the past), and that the only remedy was to completely upgrade the septic system with a new holding tank. Because the plaintiff did not want her buyers to walk away from the sale, she decided to pay to upgrade the system at a significant expense. Once the sale was finalized, the plaintiff then sued our client, claiming the defendant knew or should have known that the septic system was faulty and that she should have advised the plaintiff not to purchase the property with the faulty system. After the plaintiff presented her case in chief, we moved to dismiss her complaint, arguing that the plaintiff failed to present sufficient, credible evidence that our client had any knowledge prior to the plaintiff’s purchase of the property that the septic system was faulty. The court agreed, granted the motion and entered judgment in our client’s favor.

We obtained a defense verdict in the U.S. District Court for the Eastern District of Pennsylvania in a Section 1983 malicious prosecution case. The plaintiff alleged that city narcotics officers planted drugs and stole money from her and then falsely charged her with possession and possession with intent to distribute crack cocaine. The criminal charges against her were dismissed following a Post Conviction Relief Act hearing. 

The plaintiffs filed a complaint stemming from the school district’s alleged violation of Section 504 of the Rehabilitation Act. Defense counsel prepared a F.R.C.P. 12(b)(6) motion to dismiss, arguing that the plaintiffs’ pleadings were insufficient to show that the student was disabled under the Act, that the district did not discriminate against the student, and that an isolated incident or comment from one teacher does not impart liability in violation of Section 504. The motion was first evaluated by a U.S. Magistrate Judge who issued a report and recommendation that the motion be granted and the plaintiffs’ complaint be dismissed. The plaintiffs objected, and the defendants briefed the district’s position that the report and recommendation should be adopted. Thereafter, a U.S. District Judge held that the report and recommendation contained no clear errors or manifest injustice, and that “plaintiffs’ objections merely express disagreement with the Judge’s analysis and attempt to rehash or restate arguments already considered and rejected by the Judge in the thorough report and recommendation.” As a result, the defendant’s motion to dismiss was granted and the plaintiffs’ complaint was dismissed with prejudice. 

We successfully defended an insurance broker in a negligence claim. After a tornado damaged his property, the third-party plaintiff rented an excavator that was damaged due to a collision during its operation. Before renting the excavator, the third-party plaintiff contacted our client, an insurance broker, requesting that the agency procure insurance to protect him against loss to the excavator. Our client arranged for third-party plaintiff’s purchase of two policies; however, the specific collision that occurred was not covered under either policy. The insurance company for the rental facility paid for repairs to the excavator and demanded reimbursement from the third-party plaintiff who, in turn, requested our client satisfy the claim. The third-party plaintiff eventually dismissed his claims against our client after we argued: (1) the third-party plaintiff could not satisfy the elements needed to establish a negligence claim; (2) our client made no negligent misrepresentation of fact; and (3) our client did not owe a fiduciary duty to the third-party plaintiff. There were no facts to support a finding that there was negligence just because this specific instance was not covered by the policies in place. An insurer has a duty to read his policies and a failure to do so does not impute negligence. Additionally, there were no misrepresentation of facts and there was no fiduciary duty between the agent and the insured. For there to be a fiduciary duty between an agent and insured, there must be a mutual understanding of such, which was not the case here. 

We received a favorable decision from the Philadelphia County Court of Common Pleas Commerce Program. Our motion to strike the plaintiffs’ class action certification was granted, effectively dismissing the plaintiffs’ attempts at a class action lawsuit against a transportation authority.

We successfully defended a public school district that had been sued in federal court for not providing busing to charter schools within its district. The charter schools sought a temporary restraining order and a preliminary injunction to prevent the district from prioritizing busing to students attending traditional schools over those attending charter schools. The court agreed that the district was fairly maximizing its bus driver resources to service the most students possible.

The plaintiff sought employment as a fork lift operator in a manufacturing facility. He was extended a conditional offer of employment, contingent on passing a pre-employment drug test. His drug test showed a positive indication for the presence of marijuana, and his offer was rescinded. The plaintiff claimed that he notified the facility that he held a valid Medical Marijuana Identification Card, yet our client still rescinded its offer in violation of the Pennsylvania Medical Marijuana Act. The Act prohibits an employer from refusing to hire a person solely on the basis of that person’s status as a certified medical marijuana user. In response to the complaint, we filed preliminary objections arguing that the employment offer was expressly contingent upon passing a drug test. We also argued that fork lift operation is, by its very nature, an inherently dangerous job that, if done carelessly or under the influence of a narcotic, could result in injury or death to the plaintiff or others on the premises. The court held that the Medical Marijuana Act’s provisions do not require an employer to hire a medical marijuana user as a forklift operator and taking on a substantial risk of liability for injury to persons. Additionally, the court found that a medical marijuana user does not have a right to be hired by a prospective employer who, prior to such hiring, determines that the position for which the prospective employee would be hired would require his or her performance of tasks an employer deems life-threatening to the employee or any of its employees. The demurer was sustained, and the complaint was dismissed.

The case involved a middle school student diagnosed with epilepsy and ADHD. Throughout middle school, the student was accommodated for his medical conditions through a 504 Service Agreement, and was provided intensive, small group instruction in reading and math as he struggled in those areas. The student was evaluated for special education twice by the school district, at the parents’ request, because they believed he might have a learning disability. The school district concluded both times that the student did not have a learning disability; however, the district also determined in the second evaluation that the student was eligible for special education with an Other Health Impairment, in light of his medical diagnoses. The school district presented the parents with an Individualized Education Plan (IEP) for the student, which they initially approved. Before the school district had a chance to implement the plan, however, the parents unilaterally withdrew the student from public school and placed him at a private school for children with special needs. In their complaint, the parents claimed the school district conducted inadequate evaluations and, therefore, failed to timely identify the student as eligible for special education (and to recognize his alleged learning disability), and that the school district denied the student a Free Appropriate Public Education by offering him an inadequate IEP. The parents also claimed the school district failed to take appropriate measures to prevent the student from being bullied by his peers. The family sought, among other relief, reimbursement for the cost of the private school at the school district’s expense, reimbursement for the cost of a private educational evaluation and a finding of intentional discrimination because of the school district’s response to the alleged bullying. After nine hearing sessions, the Hearing Officer found in favor of the school district on all claims. Preliminarily, the Hearing Officer agreed with our argument that the complaint was not timely filed and, therefore, much of the parents’ claim was precluded by the IDEA statute of limitations. The Hearing Officer also found that the school district’s evaluations were appropriate and that the family was not entitled to tuition reimbursement because there was insufficient evidence to show the private school was an appropriate placement. Additionally, the Hearing Officer concluded that the school district responded promptly and appropriately to the parents’ reports of alleged bullying and, therefore, the school district did not discriminate against the student. 

Our client represented a plaintiff in a personal injury action. The personal injury plaintiff had signed a lien letter, agreeing to repay her physical therapist from the proceeds of the personal injury claim. After the case settled, our client reimbursed the physical therapist for less than the amount billed by the therapist, who filed the ethics complaint. We successfully argued that our client was representing the best interests of his client, who claimed the bills were excessive. By doing so, the attorney increased the recovery for his client.

We won summary judgment in the U.S.D.C. for the Middle District of Florida in a first-party coverage case challenging the prompt notice of an insurance claim. The plaintiff alleged extensive damage to the insured premises, including the alleged need to tear out and access the cast iron plumbing for its full replacement following a toilet overflow at the property. The plaintiff failed to report the loss for 20 months following the alleged date of loss. In a written motion, Carolin and Danielle argued that the plaintiff cannot rebut the presumption of prejudice because, at the time the insurance carrier investigated the loss, there was no actual damage to the property. The court agreed and granted summary judgment in favor of our client.

We convinced the Commonwealth Court to affirm a workers’ compensation judge’s decision. The judge had denied the claimant’s petition to review a Utilization Review (UR) determination and rejected the claimant’s argument that the judge was barred from ruling on UR petitions by the rules of collateral estoppel and issue preclusion.

We persuaded the Pennsylvania Supreme Court to deny a claimant’s petition for allowance of appeal. In this workers’ compensation matter, the claimant challenged the constitutionality of Act 111 and its Impairment Rating Evaluation (IRE) provisions.

In a case that was closely watched by other Public Housing Authorities (PHAs), we obtained a defense verdict after a six-day jury trial in the U.S. District Court for the Southern District of Ohio where we defended a PHA accused of discrimination against disabled persons under the ADA and FHA.  The dispute surrounded the PHA’s failure to apply to the U.S. Dept. of Housing and Urban Development (HUD) for Veterans Affairs Supportive Housing (VASH) vouchers as requested by a developer. The plaintiff claimed that the PHA arbitrarily, capriciously, intentionally, and based on discriminatory animus blocked funding and financing for 60 units of affordable housing for veterans, most of whom were disabled, which stood in violation of the ADA and the Fair Housing Act of 1968 (FHA). For background, the PHA’s administrative plan required it to issue a RFP. The developer argued the PHA should have amended its administrative plan to allow it to choose a developer and that the PHA’s refusal to apply for VASH vouchers on the developer’s behalf was discrimination against disabled persons under the ADA and FHA.  In defense of the allegations we argued: The developer never claimed to be acting on behalf of disabled persons; the only request was for a letter of intent, which the PHA could not submit since it would have violated its Administrative Plan and federal regulations; and the request was not necessary to enable disabled persons equal access since the PHA’s decision had the same effect on non-disabled persons. The jury unanimously agreed that the plaintiff developer failed to prove all the necessary prima facie elements of discrimination and issued a verdict for the defendant Housing Authority.   

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).

A FINRA arbitration panel recommended the expungement of a customer complaint from a financial advisor’s public record.  The complaint involved an allegedly unsuitable sale of an equity indexed annuity with a nine-year surrender period.  

During early morning hours, a vehicle was observed by police officers driving straight through a turning lane. The officers attempted a traffic stop, but the driver took off and led police onto an interstate highway. A high-speed pursuit ensued, reaching speeds in excess of 115 mph. The plaintiff was a passenger in the vehicle. Due to the high speed and an upcoming construction zone, officers broke off the chase. The driver attempted to exit the interstate via an off ramp, but turned too fast and crashed. Although the driver died on impact, the plaintiff-passenger was thrown from the rear of the vehicle and wedged under the dashboard. The plaintiff sued several municipalities under a negligence theory. Following discovery, Mark filed motion for summary judgment on behalf of our client, arguing that the plaintiff’s claim was barred and the township was immune from suit pursuant to the Pennsylvania Political Subdivision Tort Claims Act. Following oral argument, the court granted our motion.

We effectively shut down a Maryland Insurance Department investigation of a life insurance agent who was the subject of a customer complaint. The complaint alleged the agent oversold life insurance to a couple who contended the amount of insurance was excessive, unsuitable and unnecessary. We were able to demonstrate to the regulators that the agent did a thorough job in explaining the need and purpose for the coverage, and that the couple could afford the coverage and actually drove the decision to purchase the coverage, only changing their mind later, after the client was criticized by a subsequent insurance agent. We also defeated a Certified Financial Planner Board investigation involving the same matter.