Results

We obtained dismissal of both bad faith and Unfair Trade Practices and Consumer Protection Law (UTPCPL) claims in a case filed in the Eastern District of Pennsylvania. The case arose from a UIM claim presented after a motor vehicle accident. In an extensive footnote to the order, the court included a fairly comprehensive overview of the standards for pleading viable bad faith in UTPCPL claims in Pennsylvania. The court did not allow the plaintiff the opportunity to amend his complaint in order to cure the pleading defects.

The claimant was hit by a forklift while operating a forklift, and alleged the accident caused a back injury. Through employer witness testimony and medical testimony, we showed that the claimant did not sustain a back injury, and that her medical issues were pre-existing and unrelated to the accident. The judge found that the evidentiary evidence presented by the employer established that, even though the claimant was involved in a forklift incident, the claimant did not sustain a work injury, and her ongoing medical issues are unrelated to the forklift accident. 

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. 

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. 

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.

The claims arose from the alleged occurrence of an unrecognized left tibial/medial plantar nerve injury during left ankle deltoid ligament reconstruction. Despite challenging liability issues the defense was able to significantly discredit the plaintiff at her videotaped discovery deposition based on the findings of an extensive pre-suit investigation. After testifying to having no criminal history, the plaintiff was confronted with multiple guilty pleas for writing bad checks. Also, we were able to get the plaintiff to admit that she had asked a subsequent treating orthopedic surgeon to change his documentation in the records to enhance her lawsuit. Further, we established that much of the plaintiff’s testimony was inconsistent with the medical record documentation. Finally, although the plaintiff certainly has a component of nerve damage in her left foot, we elicited favorable testimony on damages, which suggested that the primary cause of her pain and debility was unrelated and due to preexisting mechanical conditions. The plaintiff’s demand pre-deposition was $450,000; we resolved the case after the deposition for a de minimus payment of $30,000.

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).

The plaintiff alleged that a physician in the Lehigh County jail failed to properly treat his chronic back pain, and that the physician exhibited a deliberate indifference to his serious medical needs. Specifically, the plaintiff contended that he should have received a spinal cord stimulator during his incarceration. After two days of testimony, the jury returned a defense verdict, agreeing with the defense’s position that the physician did not exhibit a deliberate indifference to the plaintiff’s serious medical needs.

The plaintiff fell while walking and sued the owners of the property and York City, alleging the City was negligent in failing to maintain the sidewalk and in failing to inspect, correct or repair it. The defense argued that the plaintiff did not establish that York had any actual or constructive notice of the alleged defect, and that the plaintiff failed to meet her burden under the sidewalks exception to the Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541, et seq.

We prevailed on a lengthy case on behalf of a trash collection company. The case involved testimony from seven employer witnesses, in addition to medical expert testimony. We successfully defended all petitions pertaining to the claim, including review and penalty petitions. This high-exposure case—the claimant had an average weekly wage of $2,846 with a maximum compensation rate—was the result of the claimant being terminated for failure to timely report a work-related injury as per company policy.

The plaintiff claimed that our client, an orthopedic surgeon, was negligent (directly or circumstantially under a theory of res ipsa loquitur) in causing a right common peroneal nerve injury during a L4-5 laminectomy and posterior spinal fusion. The plaintiff sought to prove that the peroneal nerve injury was the result of improper positioning and/or monitoring of the plaintiff intra-operatively. Our defense was that the plaintiff’s peroneal nerve condition was indicative of a spontaneous entrapment unrelated to the allegations of negligence, and for which she was predisposed due to a prior total knee replacement. The arbitrator agreed and returned a finding of no negligence.

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 a directed verdict following a six-day jury trial in York County, Pennsylvania under COVID-19 restrictions. In this property damage case, the plaintiff claimed that his house was flooded when his local property manager and water company failed to coordinate the turn-on of water service while he was residing in Colorado. Brooks represented the water company at trial and demonstrated that the plaintiff failed to prove that the water company owed any additional duties of care to him, or that any breach of those duties was a factual cause of the harm which occurred—namely, flooding of the house for seven days. A directed verdict was granted in favor of the water company at the end of trial. The plaintiff passed on a joint offer of $100,000 in the days leading up to trial. The property manager secured a defense verdict just hours after the water company’s directed verdict. The judge, jury, staff, and all counsel wore masks and socially distanced during trial. Testifying witnesses were asked by the court to remove their masks in order to testify, with the witness stand encapsulated in Plexiglass. All but one witness consented.

We obtained a defense verdict following a non-jury trial. This case was brought under Pennsylvania’s Sunshine Act, which governs the meetings of Commonwealth public agencies, including school boards. The plaintiffs were residents of a Centre County school district, and they sued the school board and its president, claiming they violated the Act in the manner by which they conducted public meetings. Specifically, the plaintiffs alleged the board failed to state with sufficient specificity during the open portion of its meetings the reasons why it was convening privately in executive session, and because the board did not allow public comment at, or keep minutes of, its executive session meetings. After trial and post-trial briefing, the court, in a written opinion found for the defendants, concluding the board complied with the Act as it routinely and appropriately announced, in general terms, when it was convening in executive session to discuss contract, personnel and non-litigation legal matters. Finally, the trial court found as matter of law that the board was not required to allow public comment at, or keep minutes of, its work sessions because the work sessions are non-voting meetings at which the board does not “deliberate” or take any “official action,” as those terms are specifically defined by the Act.

We obtained a favorable decision from the Workers’ Compensation Appeal Board, reversing the underlying judge’s decision pertaining to a school district’s entitlement to a credit for wages paid to a school teacher pursuant to a collective bargaining agreement. The Board granted credits for wages received by the injured worker through the school district’s collective bargaining agreement, allowing offsets against the claimant’s future entitlement to wage loss benefits.

We successfully defended a local school district in a special education due process complaint by the parent of a former student who was diagnosed with autism, learning disabilities and ADHD. ​The student had graduated from high school, completed all credits and earned a regular diploma. Yet, the parent claimed that while the student was still attending high school, the school district failed to provide the student with sufficient learning support in reading and math, appropriate social skills training, and adequate vocational and transition services to help the student with life after graduation. Also, the parent claimed the school district failed to take appropriate measures to protect the student from alleged bullying by his peers, including fellow members of the varsity football team. The hearing officer found for the school district on all issues and concluded the school district had provided the student with a free appropriate public education during all times in dispute. The hearing officer also found there was no evidence to suggest the school district had failed to respond appropriately to the parent’s and student’s reports of bullying.

The agents/agency represented the buyer/plaintiff in his purchase of a home in Dauphin County. ​The plaintiff claimed the agents failed to disclose to him prior to settlement that there were alleged defects in the A/C system and heat pump, and that the roof was old and needed to be replaced. The plaintiff paid for a home inspection report of the property, which noted the age and condition of the A/C, heat pump and roof, but the plaintiff claimed he never received the report, even though he discussed the report with one of the agents and authorized the agent to reply to the report on his behalf. The reply specifically asked the sellers to make repairs to the roof. As part of the defense, we argued that the plaintiff’s claims were barred by the release language in the agreement of sale, which specifically stated that the plaintiff agreed to release the agency and its agents from claims relating to any defects or conditions on the property, and that the release by its terms survived settlement. In addition, we argued that the plaintiff waived his claims, at least as to the costs to replace the A/C and heat pump, when he declined in writing a home warranty plan that was offered to him prior to settlement by the agents. By signing the home warranty application form stating he was declining the plan, the plaintiff agreed in writing not to hold the agency and agents liable for the repair or replacement of a system that would otherwise have been covered by the plan. We introduced testimony that that the A/C and heat pump would have been covered if they did need to be repaired or replaced. The court found for the agency and agents and entered judgment in their favor.

We obtained a defense verdict after a one-week trial in the U.S. District Court for the Eastern District of Pennsylvania. The case involved alleged race, gender and/or “intersectional” (race and gender) discrimination claims by two women against a Philadelphia area school district.

We were successful on a motion to dismiss an action against a financial planning and investment firm and its employee, a certified financial planner, filed in Federal District Court in Maryland. The plaintiffs claimed that the financial planner advised them to purchase a life insurance policy that was indexed to the stock market and that he made certain representations about the expected return on investment, which never came to fruition. Instead, according to the plaintiffs, the value of the policy plummeted, and they lost significantly on their investment. The court dismissed all claims against the firm, agreeing that the company could not be liable for the alleged advice given to the plaintiffs by the financial planner, inasmuch as the firm did not exist at the time the alleged advice was given. Also, the court dismissed a claim for breach of fiduciary duty against the financial planner, agreeing that both federal and state courts in Maryland do not recognize a standalone cause of action for breach of fiduciary duty when only monetary damages are sought. As well, the court dismissed a conversion claim against the financial planner, concluding that the plaintiffs failed to allege sufficient facts to plausibly demonstrate the financial planner wrongfully exercised ownership or dominion over their finances.

The defense prevailed on a motion for summary judgment in the Middle District of Pennsylvania on behalf of a local school district. The plaintiff, a former teacher, asserted claims of age discrimination and retaliation under the Age Discrimination in Employment Act. The defense argued in their motion that the plaintiff failed to establish a prima facie age discrimination claim or retaliation claim because she could not establish that she suffered from an adverse employment action. The court agreed and determined that the plaintiff's transfer to a new grade level, placement on an improvement plan, and voluntary resignation did not constitute adverse employment actions in order to establish her claims. Consequently, the court granted the school district's motion and dismissed all claims.

We successfully defended a superintendent of a Pennsylvania School District. The elementary teacher plaintiff was disciplined following an investigation into allegations that she struck a student. The plaintiff raised claims against the superintendent for intentional infliction of emotional distress, loss of consortium, and violation of procedural due process. The defense argued that, as a superintendent, he was afforded high public official immunity and, therefore, the court dismissed the intentional infliction of emotional distress claim. The court also dismissed the loss of consortium claim as it was a derivative claim of the intentional infliction of emotional distress claim. The court further held that the plaintiff was not deprived of her procedural due process rights, as she was given the opportunity through the teacher's union to arbitrate a grievance over her suspension. Consequently, the court dismissed the plaintiff's complaint, with prejudice. 

We obtained summary judgment in a legal malpractice action in Lancaster County. We represented a law firm in the defense of legal malpractice cross-claims arising during underlying litigation. The plaintiff, an environmental consulting company, sued landowners for allegedly withholding information relevant to the clean-up of gasoline spill(s) on the landowners’ property. The landowners sued their attorneys, our clients, claiming that any liability on their part was due to malpractice committed in negotiating the contract between the landowners and the consultant. We successfully argued on summary judgment that the consulting company knew or should have known the allegedly withheld information years earlier, based largely on testimony obtained during the plaintiff’s deposition. The court agreed, dismissing not only the legal malpractice claims due to lack of causation, but also the consulting company’s claims against its former clients on the basis of the statute of limitations.

The parties had filed cross-motions for summary judgment. The issue for the court was whether the carrier had breached the terms of the policy when it denied the plaintiff’s first-party benefits claim relating to medical bills for PTSD allegedly caused by the underlying accident. The policy defined “bodily injury” as “accidental bodily harm to a person, and that person’s resulting illness, disease or death.” The plaintiff argued that, because she had sustained both physical and mental injuries as a result of the accident, the treatment related to both types of injuries and should be covered. The defense argued that, per the policy and controlling case law, mental injuries are only covered if they “result from” the physical injury. Because the PTSD stemmed from the plaintiff’s fear of driving following the accident—as opposed to mental injuries that resulted directly from the physical injuries—the defense asserted that they are not covered. The court agreed with the defense and found that the language of the policy was clear and unambiguous. It found that the Superior Court’s holding in Zerr v. Erie Ins. Exchange controlled and that the plaintiff had failed to provide evidence that her mental injuries resulted from her bodily injuries. Absent that connection, there was no coverage for the PTSD, regardless of any collateral physical injuries sustained in the accident.

Obtained a defense verdict on behalf of a supermarket in a premises liability case in the Court of Common Pleas of Cumberland County, Pennsylvania. The plaintiff claimed that she was injured when her hand was trapped in a deli case door that was closed by an inattentive employee. She claimed that in an attempt to free her hand from the deli case, she suffered an injury to her shoulder and her neck. MRI scans after the incident did show degenerative disc disease in her neck, as well as multiple herniated discs. Her treating orthopedic surgeon attributed the injuries to the incident in question and recommended a cervical fusion. Through investigation, we learned that the plaintiff had filed a lawsuit in New York as a result of a fall in 2007. We obtained a transcript of the plaintiff’s deposition from the prior lawsuit, which indicated that her treating physician in the New York case had recommended the same health care procedures that had been recommended after this incident. The jury did find the employee who closed the deli case door on the plaintiff’s hand to be negligent. The jury also found that the plaintiff was negligent in sticking her hand in the area of an open deli case and that the plaintiff’s negligence outweighed the defendant’s negligence, barring her recovery. 

We obtained summary judgment in a putative class action lawsuit in the Eastern District of Pennsylvania on behalf of a large insurer. The case dealt with a letter the insurance carrier would send to their insureds following a motor vehicle accident in which they advised their insureds that they would have a rental vehicle for five days. The named plaintiffs argued the letter misrepresented the policy language and they sued for breach of contract, bad faith, declaratory judgment and equitable relief. Per the insurer’s request, the court agreed to stay class action discovery so that the insurer could file a dispositive motion as to the named plaintiffs, which, if granted, would dispose of the entire putative class action case. In its motion for summary judgment, the insurer argued that the named plaintiffs could not meet their individual burdens of proof since it was undisputed they had a rental vehicle for 23 days and had returned the rental the same day they picked up their newly purchased vehicle. The court agreed and granted the insurer’s motion for summary judgment in its entirety and dismissed the action. The court reasoned, in part, that the named plaintiffs’ alleged damages were speculative and that issuance of the rental letter did not constitute a breach of the policy since the plaintiffs could not show that they were not afforded benefits to which they were entitled.

We secured the dismissal of a declaratory judgment action filed in federal court against a large insurer. This case arose from a motor vehicle accident that occurred in 2015. The plaintiff averred that she had sustained injuries in excess of the tortfeasor’s bodily injury liability limits and sought stacked underinsured motorist (UIM) benefits. While the plaintiff had admittedly signed a rejection of UIM coverage form and a rejection of UIM coverage stacked limits form, she argued that her insurer had altered the statutorily required forms by adding additional language. The plaintiff filed a declaratory judgment complaint against her insurer. We filed a motion to dismiss the complaint on behalf of the defendant, which was granted by the federal court. The court reasoned that the UIM rejection form “specifically complied” with the applicable requirements of Pennsylvania’s Motor Vehicle Financial Responsibility Law because the additional language, contained on the same page as the statutorily required rejection language, was “inconsequential.”

Successfully defended a Pennsylvania real estate broker who represented the seller in a residential real estate transaction. ​The homeowner-plaintiffs claimed that the seller and our client failed to disclose certain material defects in the property prior to closing. The plaintiffs’ complaint consisted of claims against our client for negligent misrepresentation and alleged violations of Pennsylvania’s Unfair Trade Practice and Consumer Protection Law (UTPCPL) and Real Estate Sellers Disclosure Law (RESDL). In preliminary objections, the defense argued that the plaintiffs’ claims should fail as a matter of law because the complaint did not allege that our client had actual knowledge of any material defects or that our client made any misrepresentations concerning the property. The plaintiffs’ UTPCPL claim was premised primarily upon the Seller’s Property Disclosure Statement, which the court agreed did not apply to our client as our client did not prepare or sign the document, and because our client was not identified in the document as a source of any information about the property. The court dismissed the RESDL claim on similar grounds and held that the Disclosure Statement failed to identify any misrepresentation made by our client. Furthermore, the court emphasized the clear language in the RESDL, which provides that a seller’s agent shall not be liable for any violation of the RESDL unless the agent had actual knowledge of a material defect. 

Secured summary judgment in federal court in a bad faith case against a large insurer. ​The case arose from a pedestrian-motor vehicle accident that occurred in 2008 and dealt with the insurer’s handling of the plaintiff’s UIM claim following that accident. The plaintiff was run over by a rollback truck that was being repossessed on behalf of the owner. Because there were conflicting versions of events regarding how the accident occurred, the case went to arbitration on the issue of liability. The arbitrators found that the plaintiff was 33 1/3% causally negligent for his injuries, and the UIM claim later settled. The plaintiff then pursued a statutory bad faith claim, contending the insurer had delayed its investigation of the UIM claim without a reasonable basis and had unreasonably refused to pay the plaintiff UIM benefits. At the close of discovery, the insurer filed a motion for summary judgment, which was granted by the court, and the case was dismissed in its entirety.