Professional Liability

We prevailed in a jury trial on a UM claim in Hillsborough County’s 13th Judicial Circuit. The plaintiff claimed he suffered permanent and debilitating injuries in a rear-end collision in Tampa, Florida. Liability was admitted, but the extent of the plaintiff’s injuries was in dispute. The plaintiff asked the jury to award him $500,000 for past and future damages.  The jury found there was no permanent injury and awarded $25,000 for past medical expenses only.

In this civil rights litigation, we obtained summary judgment and the dismissal of all claims against a Pennsylvania City and one of its police officers. The court found that the traffic stop of the plaintiff was proper and did not violate his constitutional rights. The plaintiff filed a federal civil rights action against the police officer and the City, alleging that his Fourth Amendment rights were violated because of unlawful search and seizure as well as a malicious prosecution. The plaintiff further alleged that the City was liable for the constitutional violation based upon a failure to train its officers. These claims were based, in part, upon the Pennsylvania Supreme Court decision in Commonwealth v. Hicks, which was filed approximately two months before the plaintiff’s arrest. In this civil rights case, the parties agree to forego discovery and instead rely solely upon the record developed in the plaintiff’s state criminal prosecution. After considering the record evidence, the arguments of each side, and the motions and briefs submitted, the District Court issued an opinion finding that the police officer possessed a reasonable suspicion of criminal activity, justifying the traffic stop of the plaintiff’s vehicle. Because the court concluded that the plaintiff’s constitutional rights had not been violated, an analysis of qualified immunity was unnecessary. Finally, after finding that the officer did not violate the plaintiff’s constitutional rights, the court dismissed the Monell claims raised against the City.

Our retail client faced a class action suit alleging claims it charged Pennsylvania state tax on face masks/coverings during the COVID-19 pandemic (when they were not subject to sales tax). The plaintiff on his own behalf and on behalf of the putative class alleged claims for violations of the Pennsylvania Unfair Trade Practices Consumer Protection Law and the Pennsylvania Fair Credit Extension Uniformity Act, as well as common law claims for unjust enrichment, fraud and misappropriation/conversion. The plaintiff claimed that face masks and coverings became exempt from Pennsylvania sales tax as of March 6, 2020, when the governor issued a Proclamation of Disaster Emergency. Prior to the Proclamation, non-medical face masks/coverings were subject to sales tax because they were classified as ornamental wear or clothing accessories. The court held that the plaintiff failed to state a claim for any of the causes of action alleged and held that amendment would be futile.

We obtained a dismissal of an ethics grievance filed against our client, a school law attorney who represented a school board and a school district. The grievance included allegations of ex parte communications with the administrative law judge, undue influence over the court, and conflict of interest based on a mediator’s spouse being retained by this attorney’s firm. We successfully argued to the disciplinary investigator that the conversations this attorney had with the administrative law judge’s staff were rudimentary scheduling and routinely conducted in cases across New Jersey. In terms of the conflict of interest alleged, we also argued that this attorney was an associate with the firm and had no interactions or decision-making authority regarding hiring of attorneys in the firm. The disciplinary ethics investigator found by clear and convincing evidence that the testimony of the school law attorney was credible, and that there was no ethical misconduct by our client. 

We defeated a plaintiff’s petition for certification to the New Jersey Supreme Court in a tortious interference and defamation action against an attorney for a lender bank. The New Jersey Appellate Division had affirmed a trial court decision granting summary judgment in a $10 million tortious interference and defamation case filed by borrowers against the attorneys for a lender bank. This case arose out of an underlying deficiency and foreclosure action filed by a bank due to the plaintiff’s failure to repay a multi-million dollar loan used to finance the purchase of real estate. During the course of negotiations to resolve the debt, the bank’s counsel had discussions with the plaintiff’s new lender. The plaintiffs alleged that during these discussions, the defendant attorney called the plaintiff a “wannabe gangster.” On appeal, Jack and Jeremy successfully argued that the trial court was correct in dismissing this case on summary judgment. The Appellate Division held that the trial judge correctly concluded that a statement made by the bank’s attorney to a potential new lender calling the plaintiff a “wannabe gangster” was mere name calling, not actionable defamation. The claims for tortious interference were based upon the lost opportunity, since the new lender rescinded its conditional commitment after the alleged statement was made. The Appellate Division held that the trial court was correct in holding that the statements were protected under the litigation privilege, that the litigation privilege is not confined to the courtroom, but extends to all statements or communications in connection with judicial proceedings. Subsequently, the plaintiff filed a petition for certification before the New Jersey Supreme Court, which we successfully opposed. The Supreme Court, in its decision, denied the plaintiff’s petition, with costs in favor of our client. 

This case had potential national implications where the allegations by Disciplinary Counsel included 93 paragraphs and alleged violations of multiple Rules of Professional Conduct.

We obtained summary judgment for an insurance carrier client that had been sued by another insurance carrier for more than $1.6M in damages arising out of a fire loss. The opposing insurance company had paid $1.6M in damages and intended to pursue a product liability claim against a vehicle manufacturer, alleging that a defectively manufactured vehicle had caused the fire to an auto repair facility. Our client insured the vehicle that was allegedly defective. After the insurance companies conducted a preliminary expert evaluation, the vehicle was destroyed by a salvage yard in the normal course of business. A claim was made against our client for promissory estoppel where it was alleged that the vehicle was destroyed despite a promise to preserve. The Court of Common Pleas of Erie County rejected the claims against our client and agreed with our defense that the promissory estoppel claim was a disguised claim for negligent spoliation, which the Supreme Court of Pennsylvania does not recognize. Moreover, assuming such a cause of action could withstand summary judgment, the damages claimed were speculative in that without the vehicle it could never be proven that a manufacturing defect within the vehicle had caused the fire. Although the $1.6M damages were established, whether the insurance company could prove causation of damages was speculative and the promissory estoppel claim could not survive summary judgment.

We successfully represented an attorney who was sued by a former client after representing that client in a personal injury action. The plaintiff alleged the attorney failed to file suit within the time allowed by the Statute of Limitations. We argued in our summary judgment motion that the attorney sent two letters to the plaintiff, advising that the attorney would not file suit and further informing the plaintiff when the Statute of Limitations would expire. The plaintiff, who filed suit four years later, argued that he did not receive the letters and the attorney was obligated to do more than send letters. We successfully argued that the plaintiff failed to overcome the presumption that a letter, correctly addressed, was received. The Appellate Division affirmed, adopting our argument that the plaintiff could not overcome the presumption by simply claiming he did not receive the letters. 

A FINRA arbitration panel recommended the expungement of two separate customer complaints from a financial advisor’s public record.  Both complaints involved allegedly unsuitable sales of alternative investments.

A FINRA arbitration panel granted a financial advisor and his supervisor’s motion to dismiss a FINRA arbitration on the basis that the Claimant previously brought multiple claims regarding the same securities related dispute against the broker-dealer, who was not a party to this arbitration.  

Our attorneys succeeded in obtaining an affirmance in the Fifth District Court of Appeal of a final dismissal order of a wrongful death product liability action. The decedent’s estate filed the lawsuit two years after the statute of limitations expired. The estate argued the statute was tolled for a variety of reasons. The trial court dismissed the case, with prejudice, after giving the Estate five attempts to amend. The Fifth District affirmed the dismissal and dispensed with oral argument that same day. 

Our attorneys obtained dismissal of claims against a real estate agent arising from the agent’s representation of a buyer in connection with the purchase of a home in Philadelphia. Following the purchase of the property, the buyer discovered numerous undisclosed issues with the home and commenced suit against the seller and the seller’s agent. In turn, the seller’s agent joined our client, the buyer’s agent, alleging it was actually the buyer’s agent who should be liable on the buyer’s claims for negligence, violation of the Pennsylvania Seller’s Disclosure Law, breach of contract, negligent representation and fraud. On preliminary objections, we argued that the plaintiff’s conclusory allegations did not give rise to valid claims, that a buyer’s agent cannot be liable under the Seller’s Disclosure Law without actual knowledge of a material defect which was not disclosed, that the joinder complaint did not adequately allege that the buyer’s agent made any misrepresentations, and that there were no allegations adequate to suggest the buyer’s agent breached his statutory duties under the law. The Philadelphia Court of Common Pleas agreed, sustaining the preliminary objections and dismissing the joinder complaint. 

Our attorneys succeeded in obtaining an affirmance by the Fourth District Court of Appeal. The Fourth District affirmed the dismissal, with prejudice, of our clients, a listing real estate agent and his broker, in an alleged negligence and fraud case. The court rejected the plaintiff’s arguments that the trial court abused its discretion in dismissing their pleadings due to their attorney’s conduct. The court detailed how the plaintiff’s attorney dropped the ball in litigating the case in a separate opinion reversing the plaintiffs’ attorney’s contempt conviction.

Our attorneys prevailed on an appeal to the Third Circuit, which affirmed the district court’s rejection of the plaintiffs’ request for class certification in a product liability and warranty action. The named plaintiffs are several property owners and communities of common ownership who allege they have yellow-jacketed, corrugated stainless steel tubing (CSST) transporting natural gas through their structures. The flexible, yellow CSST is the modern heir to the black iron pipe formerly universal in the building industry. The flexible CSST offers advantages, including ease of installation, but the plaintiffs asserted there are latent product defects that risk failure in the event an electrical surge makes its way to the tubing, either from an in-house event or nearby lightning strike. The district court denied the plaintiffs’ request for nationwide and Pennsylvania-wide class certification of their disparate claims because of a failure of record proof on the elements of ascertainability of a sufficiently numerous class, predominance of typical and common claims, and an inability to demonstrate proof of liability and damages issues on a class-wide basis. The Third Circuit granted the plaintiffs’ request for interlocutory review of the class certification decision, but nevertheless affirmed the district court’s ruling on largely the same bases. Without passing on the merits of the product defect claims, the Third Circuit recognized that there was no basis to grant class-wide treatment given the differences in everything from notification to putative class members, liability and damages proofs, and the law governing claims. The denial of class certification was affirmed, and the case will proceed on an individual basis only.

We obtained dismissal of two charges filed with the Ohio Civil Rights Commission. The charging party had been removed from two of the employer’s stores. He claimed it was due to discrimination, because of his race and disability (he required a service animal to be with him). The defense submitted a position statement with affidavits of employees and managers, explaining that the employee was removed because he was videoing other customers without their consent and making racially charged comments to employees and customers. 

We obtained dismissal via preliminary objections of all claims asserted against a day care center in a shooting case venued in Philadelphia. The case arose from the shooting death of a student’s father. The shooter had been previously convicted of manslaughter and assault and was an employee of the day care center’s long-time food service vendor. While the decedent was dropping off his youngest child at day care, he got into an argument with the shooter, who was on the premises delivering food. The decedent subsequently drove away with his 17-year-old son in the passenger seat, and the shooter followed in his work van. A few blocks away from the day care center, the shooter pulled up alongside the decedent’s vehicle and repeatedly fired a handgun at the decedent. The decedent’s son survived the shooting. The food service vendor, its affiliated entities, the day care center and the shooter were named as defendants. The claims against the day care center included negligence per se, negligent hiring, negligent supervision, negligent undertaking to render services, negligent infliction of emotional distress, violations of the Unfair Trade Practices & Consumer Protection Law (UTPCPL), negligent misrepresentation, and negligent infliction of emotional distress as to the decedent’s seventeen-year-old son who witnessed the shooting. The plaintiffs’ negligence per se claims centered on alleged violations of the Child Protective Services Law (CPSL), the Public Welfare Law (PWL) and the Pennsylvania School Code (School Code). Among other things, the plaintiffs took the position that the day care center had a duty to ensure that its service vendor’s employees did not have criminal records because those employees foreseeably came into contact with children and parents. On behalf of the day care center, we filed preliminary objections seeking dismissal of all claims asserted against it. After briefing, the Philadelphia Court of Common Pleas granted our preliminary objections. The case subsequently resolved with no contribution whatsoever from our client.

Our clients specialize in identifying and reclaiming lost property for consumers who are unaware that such lost property exists. The plaintiff brought claims under the Pennsylvania Unfair Trade Practices Consumer Protection Law (UTPCPL) and for fraudulent inducement, arguing that the business model was deceptive because consumers could recover their own property without paying for the ease and convenience of having the defendant business work on their behalf. Not surprisingly, the district court found that the plaintiff’s serial complaints failed to allege anything “more than Defendants’ expertise,” and that there was no factual basis to support the notion that consumers are unduly influenced or misled. On appeal, the Third Circuit affirmed the dismissal, expressly noting that the defendants made no misrepresentation at any time, and the UTPCPL and fraud claims were dismissed without merit. 

Our attorneys obtained dismissal of an ethics grievance filed against their client, the litigation counsel for a condominium association. In this case, the attorney was able to obtain a multi-million dollar settlement on behalf of the condominium association resulting from various construction defects caused by the developer, among others. After the settlement was reached, the developer’s vice president was able to assume control of the condominium association’s board and brought ethics charges against the attorney, alleging collusion with the board president and a property manager, who acted in concert to abscond with the settlement proceeds. The ethics grievance alleged the attorney should have notified the association board of the conspiracy and should have warned the association of the theft taking place. Upon responding to the ethics grievance filed against the attorney, the defense argued that the attorney had no involvement with the president of the association or the project manager and did not have any knowledge of the conspiracy. The attorney focused on the litigation and did not involve himself in anything related to the association’s business, other than the litigation, and focused on obtaining the best settlement possible for the association against the developer. After investigating this matter, reviewing the attorney’s response, as well as interviewing the attorney, the Office of Attorney Ethics dismissed all allegations against the attorney, finding that the allegations could not be proven by clear and convincing evidence. 

Our attorneys obtained judgment in favor of a local borough and its employees/agents following numerous rounds of motions to dismiss in the Western District. The plaintiff, a construction contractor, brought suit alleging the borough violated its constitutional civil rights by failing to issue it a grading permit in the time it perceived as reasonable. The matter is more generally described as a land use dispute, involving the plaintiff’s excessive dumping and destruction of a local sewer line, thus jeopardizing the health and safety of the local residents. In support of dismissal, we argued that no substantive due process rights were violated, and that the civil conspiracy claim as to the individual defendants failed as a matter of law. The court agreed and granted the plaintiff leave to amend. Failing to heed our position, the plaintiff filed an additional complaint, to which we again moved to dismiss. The court agreed with our arguments and dismissed the federal claims, with prejudice.

We successfully handled a pension rights action before the Commonwealth Court on behalf of a municipality. A police chief in small municipality alleged that a scrivener’s error in his employment contract erroneously referencing Act 600 entitled him to an Act 600 pension plan upon retirement when his existing pension plan had been organized many years pursuant to Act 15. The police chief had never contributed to an Act 600 pension plan, which would have provided for much higher benefits and for which the municipality had no funds set aside to pay because it had never established an Act 600 plan. The Commonwealth Court held that the police chief’s pension rights existed only under Act 15 because the municipal pension ordinance was established under Act 15, not Act 600. Pennsylvania law requires an ordinance to establish pension rights. Pension rights cannot be conferred only by agreement, without an ordinance. This decision was very important to the municipality we represented, and the opinion affirms well-established law that a municipality cannot contract for benefits if there is no enabling law for the benefits.

We obtained summary judgment in Carbon County, Pennsylvania in a negligence action brought against a local school district. The plaintiff, a former high school athlete, was working out in the District’s weight lifting facility when a cable snapped on a leg curl machine, striking his head and causing significant injury. The plaintiff sued the district, alleging negligence in the operation, inspection, and maintenance of the gym and, more specifically, the leg curl machine. Following discovery, the district moved for summary judgment, arguing that the leg curl machine at issue was personalty and not part of the District’s real property and, accordingly, the Pennsylvania Political Subdivision Tort Claims Act (PSTCA) prevented recovery. The court agreed and concluded the District was immune under the PSTCA since all evidence showed that the leg curl machine was not a fixture of the building and, therefore, the “real property” exception to local governmental immunity did not apply.

We obtained summary judgment on behalf of a Bedford County real estate agency and its agents, who represented the buyers/plaintiffs in their purchase of a home in Bedford, PA. Prior to closing, the plaintiffs waived their contractual right to a home inspection. After they closed and moved into the home, the plaintiffs became aware of several issues with the home, including a leaking metal roof, a defective heat pump and flooding in the crawlspace after a heavy rain. The plaintiffs claimed the sellers/defendants were aware of these conditions but knowingly failed to disclose them on the sellers’ disclosure statement. The plaintiffs also claimed our clients were negligent in failing to advise them about the alleged material omissions in the sellers’ disclosure statement and by not taking steps to try to ascertain whether there were any undisclosed defects in the property in light of the information that was omitted from the disclosure statement. The plaintiffs conceded during their deposition testimony that they reviewed and signed the disclosure statement, even though they did not ask any questions of our clients about its contents or the sections of the statement that were not completed by the sellers. The plaintiffs also acknowledged that our clients did not prepare the disclosure statement and that they had no actual knowledge of any of the alleged defects in the property at issue. In granting summary judgment, the court concluded that the plaintiffs failed to produce sufficient evidence in support of their negligence claim, and dismissed the claim, with prejudice.

We obtained the dismissal of an ethics grievance on behalf of a local special education law attorney. The grievant filed her ethics grievance based upon allegations of fraudulent and unethical practices, accusing the attorney of taking legal fees from a settlement, and alleging that the attorney was prohibited from doing so based on the terms of the settlement agreement. Specifically, the grievant alleged that the attorney failed to safeguard funds from an irrevocable trust for a special needs child, her son. In fully investigating this grievance, the District Ethics Investigator concluded that based on the evidence received, the interviews conducted and the submissions prepared on behalf of the attorney, the investigation did not reveal clear and convincing evidence that the attorney engaged in unethical conduct.

The plaintiff, who owns a restaurant, sustained personal injuries in a car accident while on a business errand. He collected the tortfeasor’s liability limits of $100,000, and then filed underinsured motorist claims with his own insurance carrier who had issued the personal auto and commercial auto policies. The underinsured claims were denied by the carrier. There was no UIM coverage under the personal auto policy because the $100,000 UIM limits equaled the liability carrier’s limits. Further, although the plaintiff had $1 million UIM limits on his commercial policy, the Mazda he was driving at the time of the accident was not listed on the commercial policy; rather, it was listed on the personal auto policy. The court granted our motion for summary judgment on several bases: the Statute of Limitations began to run when the Mazda was first put on the personal auto policy, not when the accident occurred; despite the plaintiff’s and the agent’s friendship and long-standing business dealings, there was not a fiduciary relationship between the agent and insured customer; and the agent’s alleged statement to the plaintiff that he was covered in “every single possible way you can think of” did not amount to a misrepresentation of fact. 

We obtained summary judgment in the Philadelphia, PA Court of Common Pleas in a case involving the alleged defective design and installation of a synthetic turf field. Our client was the alleged installer of a turf field located at a popular venue for recreational athletics. The plaintiff sustained a full tear of his right ACL, a complex tear of the medial meniscus and partial tear of the IT band when he tripped on an exposed seam in the turf. Discovery revealed that a flood occurred during turf installation, arguably impacting the outcome. Nevertheless, the court granted our motion for summary judgment premised on an argument that the plaintiff could not establish a deviation from the standard of care for turf installation in the absence of qualified expert testimony.

We obtained a dismissal of a declaratory judgment action against our clients, a national firm and its principal, who specialize in identifying and reclaiming lost property for consumers, who do not realize such lost property exists. Plaintiff brought this declaratory judgment action on the heels of plaintiff’s having suffered a smarting defeat in an attempted class action lawsuit against our clients. In that underlying litigation, the lower court dismissed plaintiff’s lawsuit twice and the Third Circuit affirmed the lower court’s dismissal. Plaintiff brought this action to preempt any attempts by our clients to someday bring a Dragonetti claim against plaintiff for filing the class action lawsuit in the underlying litigation without probable cause. We filed a motion to dismiss plaintiff’s declaratory judgment action, asserting that Plaintiff’s lawsuit was improper because it was asking the Court to make a decision on an issue that had not yet arisen. The Court granted our motion and soundly rejected Plaintiff’s claims, issuing an opinion that decisively stated “no amendment would save [plaintiff’s] Amended Complaint.” The lawsuit against our clients was dismissed with prejudice.

We obtained dismissal of claims asserted against our insurance broker client for breach of contract and declaratory judgment in connection with a COVID-related business interruption loss. The Court granted our Motion to Dismiss, determining that plaintiff restaurant lacked a viable breach of contract claim against the insurance broker, and thus that the derivative declaratory judgment claim also failed as a matter of law.  The lawsuit arose from pandemic-related, government-mandated business closures and plaintiff’s claim for business interruption losses, which was denied by its insurer.  The allegations against our client pertained to alleged breach of the insurance policy and coverage obligations under the policy, which unequivocally stated that the parties to the insurance policy were plaintiff as policyholder and the insurer – not our insurance broker client.   In the Magistrate Judge’s Opinion, adopted by U.S. Middle District of PA Judge Mariani, the Court concluded that our client was not a party to the insurance policy contract and did not agree to undertake any responsibilities or liabilities for the insurer’s coverage determinations, but merely acted as an agent for a plainly disclosed principal (insurer) and facilitated the contract between the parties thereto.  

We obtained an order of dismissal through pretrial motions in a complex legal malpractice action heard before the United States District Court. It arose out of an underlying first-party coverage action that involved hundreds of thousands of dollars in connection with building damage caused by Hurricane Sandy. The plaintiffs filed a complaint against our clients, certain individuals and a law firm, alleging claims for legal malpractice.  Our motion for summary judgment filed on behalf of the defendants asserted that an order for dismissal should be entered because: (1) the plaintiffs’ expert failed to offer an opinion on causation and damages; (2) the individual claims of the plaintiffs should be dismissed since the plaintiffs did not establish an individual claim; and (3) the plaintiffs failed to come forward with proofs to satisfy the punitive damages standard in New Jersey. The court granted our motion for summary judgment.   

Our defense team successfully obtained an affirmance of the grant of summary judgment in a premises liability case. The plaintiff asserted he tripped and fell in our client’s supermarket and that the fall exacerbated his epilepsy. The discovery period ended without the plaintiff producing an expert opinion that causally connected the medical complaints to the fall. The plaintiff claimed that his treatment for cancer caused his inability to be timely examined and to obtain an expert opinion. After the trial court denied the plaintiff’s motion to extend discovery, we moved for summary judgment on the grounds the plaintiff was required to provide an expert opinion linking his fall to his allegedly worsened epilepsy. The plaintiff filed a cross-motion for additional time. At the hearing on the motions, the judge expressed a willingness to consider further extension if the plaintiff had presented some indication that the report would be produced. But in the absence of such an indication, the judge found that fairness to the defense required that summary judgment be granted. On reconsideration, the plaintiff presented a “preliminary summary” from his doctor, which relied on the plaintiff’s wife’s statements to link the epilepsy to the plaintiff’s fall. The trial court denied reconsideration. On appeal to the Appellate Division, the court found no error in the decision of the Law Division judge. The court found that the plaintiff failed to show exceptional circumstances to justify a further extension of discovery and discounted the “preliminary summary” submitted on reconsideration as an improper attempt to expand the record and re-argue the motion.

We obtained a defense verdict in a Bucks County bench trial. The plaintiff claimed that the defendant homeowners’ association was obligated to replace an old stone bridge that provided the only access to the plaintiff’s residence and open public space. As part of the initial community development approval, the township directed the builder to carve out open space and repair the stone bridge so that emergency vehicles could access the open space. Continued maintenance/replacement of the bridge would thereafter pass to the the homeowner’s association. The builder never made the repairs to the bridge despite multiple requests by the township. The homeowner’s association successfully argued that its obligation to replace the bridge did not arise as the builder had not fulfilled the condition precedent of repairing the bridge and bringing it up to a current safe standard.