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Results

  • Superior Court of Pennsylvania Vacates $1.09 Billion Verdict, Orders New Trial Over Crashworthiness Jury Instructions

    We convinced the Superior Court of Pennsylvania to vacate a $1.09 billion jury verdict and remand for a new trial.  The court held that the jury had not been properly instructed on the elements of a crashworthiness claim under Pennsylvania law. The court's ruling received press coverage in both The Legal Intelligencer and The Philadelphia Inquirer.

  • Successfully Dismantled a Complex Claim Against a Major Health Care Corporation

    We succeeded in partially dismantling a complex claim against a major health care client. The family of a former in-patient resident who died as a result of complications from the COVID-19 virus filed suit, raising claims that the patient was sexually assaulted while in the care of the hospital and a subsidiary ambulance company. Asked to join the defense team shortly before trial, we effectively discredited the plaintiff’s witnesses throughout the plaintiff’s case-in-chief. At the nonsuit stage, we wholly extricated our client—sealing off any exposure to liability for the large, corporate parent company. Following the jury’s $3.5 million verdict against the remaining defendants, we were engaged as appellate counsel and succeeded in further winnowing the liability exposure. We convinced the trial judge to: (1) deny the plaintiff’s request to reinstate the punitive damages claim based on the trial record; (2) grant a partial judgment notwithstanding the verdict on one claim, lopping a full $700,000 off the jury’s verdict; and (3) outright deny the plaintiff’s motion for delay damages, which had sought to add $742,000 to the jury’s verdict.

  • Volatile Sexual Assault Case Successfully Moved Out of Philadelphia

    We successfully obtained an order to move a sexual assault case to Chester County, Pennsylvania. At first, the venue appeared prima fascia good for Philadelphia until our attorneys more closely investigated and found the one defendant holding the case in the city was never served and could not be found. 

  • Received Precedential Decision from PA Superior Court in Venue Transfer Case

    We secured a unanimous, precedential decision upholding a venue transfer from Philadelphia to Butler County under forum non conveniens, setting a new standard for defendants after a series of appellate reversals.

  • Favorable Precedential Decision Obtained in High-Stakes Construction Defect Case

    We prevailed in a unanimous, precedential decision in the Superior Court of Pennsylvania, which reconciled conflicting case law in the state. The plaintiffs were joined by 55 amici, and our client was joined by numerous construction organizations as amici. The court eventually applied Pennsylvania’s statute of repose to bar construction defect claims brought by homeowners.

  • $1.8 Million Jury Verdict Against a Philadelphia Hospital Nullified

    Our appellate attorneys successfully convinced a Philadelphia trial judge to grant judgment notwithstanding the verdict and nullify a $1.8 million jury verdict against a Philadelphia hospital. The case involved a fall in the hospital’s bathroom, and the trial judge determined that the plaintiff’s trial evidence failed to demonstrate that the hospital was responsible for the fall. 

  • Pennsylvania Appellate Courts Uphold Nonsuit Obtained By Jack Delany In $11.5 Million Construction Death Case

    By Order dated April 5, 2023, the Supreme Court of Pennsylvania refused to review the Superior Court’s affirmance of a 2021 nonsuit obtained by Jack Delany in hotly contested litigation stemming from the death of a construction worker. John Hare and Shane Haselbarth handled the appeal along with Jack. The Supreme Court’s ruling ends more than five years of litigation that arose from the construction worker’s death while he was involved in the Pier 78 renovation project on the Delaware River in Philadelphia. The plaintiff sued the general contractor and others involved in the project and ultimately settled with the general contractor for $10.5 million. The general contractor then pursued a contractual indemnification claim against Jack Delany’s concrete subcontractor client on the Pier 78 project. The indemnification claim included the $10.5 million settlement plus approximately $1 million in attorneys’ fees.   The case proceeded to trial in 2021 and, at the close of the general contractor’s case-in-chief, Jack moved for and was granted a nonsuit on the basis that the general contractor was the deceased construction workers’ statutory employer pursuant to the five-element test set forth by the PA Supreme Court in McDonald v. Levinson Steel, 153 A. 424 (Pa. 1930). The case was especially notable because, rather than retaining an attorney to address the reasonableness of the amount of the underlying settlement, which is typical, Jack retained an economist to explain that, based upon his analysis of comparable cases, the settlement amount was excessive. The general contractor appealed the nonsuit. In an unanimous decision dated September 30, 2022, the Superior Court affirmed. The Supreme Court denial of allowance of appeal brings the lengthy litigation to an end.    

  • Appellate Court Affirms District Court Order Dismissing a Federal Civil Rights Lawsuit

    A unanimous panel of the the Third Circuit affirmed an order of the U.S.E.D. Pa., which had granted a Rule 12 motion to dismiss in favor of a former Assistant District Attorney. The plaintiff had plead guilty to murder and other offenses in 1990 after shooting a man in the back four times. In 1993, the plaintiff filed a petition under Pennsylvania’s Post Conviction Relief Act (PCRA), claiming ineffective assistance of counsel. The crux of his argument being his counsel failed to object when the court incorrectly stated the meaning of life imprisonment. According to the original transcript, the court said, “Life implies 17 ½ to 35 years.” Our client, a former Assistant District Attorney, worked on the opposition to the plaintiff’s PCRA petition and contacted the court stenographer about that line in the transcript. The stenographer admitted the transcripts contained an error and filed a certified copy of the corrected page to reflect that the court said, “Life plus 17 ½ to 35 years.” The PCRA petition was denied. Then, in 2019, the plaintiff obtained a handwritten note by our client which referenced needing a “new and improved version” of the transcript. The plaintiff filed another PCRA petition. The current administration of the Philadelphia District Attorney’s Office and the plaintiff reached a stipulated agreement to resolve the case. The plaintiff’s 1990 guilty plea was vacated, he re-pleaded to third-degree murder and robbery, and was sentenced to 17 ½ to 35 years’ imprisonment, and was then released for time served.  The plaintiff filed a lawsuit against our client under 42 U.S.C. § 1983, arguing that our client’s ex parte communication with the stenographer violated his right to due process and to a jury trial. We moved for dismissal pursuant to Rule 12(b)(6), arguing our client’s actions were protected by absolute prosecutorial immunity and qualified immunity. The District Court agreed and dismissed the lawsuit with prejudice. The plaintiff appealed. Writing for a unanimous panel, the Judge concluded the claims asserted by the plaintiff “lack merit[.]” Affirmance was decided solely on the issue of qualified immunity. The court concluded the claims were “fatally deficient” because: (1) the plaintiff defined his right to due process and jury trial at too high a level of generality; and (2) the plaintiff failed to cite authority establishing that his rights to due process and a jury trial entitled him to protection from our client’s ex parte communication with a court stenographer. Thus, our client was entitled to qualified immunity, as argued by us in the District Court.   

  • $5.6 Million Judgment Nullified in Construction Case

    Our appellate attorneys were victorious in the Pennsylvania Superior Court, which granted a judgment notwithstanding the verdict and nullified a $5.6 million judgment in a construction accident case. In a unanimous, precedential opinion, the court ruled that the general contractor represented by our attorneys was the plaintiff’s statutory employer and, thus, immune from suit. Yoder v. McCarthy Constr., Inc., 2023 PA Super 13 (Pa. Super. 2023).

  • $5.6 million judgment nullified in construction accident case.

    Our appellate attorneys were victorious in the Pennsylvania Superior Court, which granted a judgment notwithstanding the verdict and nullified a $5.6 million judgment in a construction accident case. In a unanimous, precedential opinion, the court ruled that our client, a general contractor, was the plaintiff’s statutory employer and thus immune from suit.  

  • Township granted Rule 12 motion to dismiss.

    We successfully obtained from the U.S. Court of Appeals for the Third Circuit affirmance of a district court order granting a township’s Rule 12 motion to dismiss. The panel agreed with the appellees and concluded the District Court exercised proper discretion in dismissing the complaint since the plaintiffs failed to assert under 42 U.S.C. § 1983 plausible claims of federal constitutional violations.

  • MD’s Appellate Attorneys Convince PA Superior Court to Unanimously Reverse Trial Court Ruling

    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.

  • Appellate attorneys prevail in the Pennsylvania Supreme Court.

    The decision, which reversed the trial court and Superior Court, reinstated a jury verdict in favor of our clients. Following a defense verdict, the trial court awarded a new trial based on a question posed by defense counsel, who was not a Marshall Dennehey attorney. The Superior Court affirmed the award of a new trial, but the Supreme Court reversed and reinstated the defense verdict on the basis that defense counsel’s question was neither improper nor prejudicial.

  • Dismissal of Consumer Fraud Class Action

    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. 

  • Third Circuit Affirms Dismissal of Consumer Fraud Class Action Against Unclaimed Property Recovery Services Firm

    We obtained a dismissal of a consumer fraud class action against our clients, a national firm and its principal, who 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 as without merit.  DeSimone v. U.S. Claims Servs., Inc., 2020 WL 2556949 (E.D. Pa. May 20, 2020), aff’d 2021 WL 1662779 (3d Cir. Apr. 28, 2021).

  • Dismissal of civil rights action against a Pennsylvania children and youth agency.

    We secured a dismissal of a civil rights action against a Pennsylvania children and youth agency and several of its caseworkers and staff attorneys. ​The plaintiff parents brought their five-month-old baby to the hospital with a spiral fracture mid-shaft on his right humerus. The hospital team collectively concluded that the injury was probably accidental in nature, but a nurse reported the injury to the agency, concerned that it might have been caused by abuse. By law the agency is bound to investigate suspected child abuse and did so. A judge approved the request for a safety plan that required a chaperone to be with the parents and child, even in the home, while the merits of the abuse investigation continued. At the end of the investigation, the judge concluded the injury was accidental, and the safety plan was terminated. The plaintiffs then filed an action, alleging the safety plan violated their Fourteenth Amendment substantive due process rights. The federal district court dismissed the case, concluding the plaintiffs’ allegations of interference with the family unit, even if true, do not rise to the level of “shocking to the conscience” necessary for a due process violation. On appeal, the Third Circuit affirmed, stating that the nurse’s report of possible child abuse, in conjunction with other evidence to support suspicion of the same, make the defendants’ actions not “shocking to the conscience,” and so no substantive due process claim was stated. Dismissal was affirmed.

  • $40.2 Million Medical Malpractice Verdict Vacated and Remanded for New Trial

    Our appellate attorneys succeeded in convincing the Pennsylvania Superior Court to vacate a $40.2 million medical malpractice verdict and remand for a new trial. ​In its unanimous, precedential decision, the Superior Court ruled that the trial court had erroneously allowed plaintiffs’ counsel to utilize hearsay medical literature as substantive evidence. The case involved a spinal cord birth injury and was tried in Delaware County.

  • Successful Defense of Broker-Dealer Client

    This was a high-stakes FINRA arbitration case, motion to vacate the defense award in federal district court, and a precedential decision in the First Circuit following oral argument. The claimant retired early with a pension and 401(k) and rolled the funds into a securities account in 2002. On a tip from a friend, he invested his nest egg with a registered representative who years later was charged by the SEC and convicted of securities violations. Through the registered representative’s bad advice and improper conduct between 2002 and 2016, the claimant’s retirement account was drained to zero, though the total amount was distributed to the claimant himself. The claimant sued the registered representative and the rep’s former broker-dealers through whom the representative was affiliated (prior to his residency with the Bureau of Prisons). The FINRA arbitration panel granted a complete defense award in favor of our broker-dealer client, seeing no improper or negligent conduct on the broker dealer’s part, and finding all improper conduct of the registered representative to be outside the scope of his affiliation with the broker-dealer. The claimant then moved to vacate the award in favor of our broker-dealer client in federal district court in Boston, which was denied. He then appealed that decision to the Court of Appeals for the First Circuit. In both courts, Shane briefed and orally argued the case. The First Circuit handed down a published opinion even stronger than the district court victory, adopting word-for-word many of the arguments Shane made so as to secure confirmation of the FINRA award in its entirety for the benefit of our client.

  • Amicus Curiae Brief on Behalf of PDI and PADC

    Marshall Dennehey’s appellate attorneys filed an amicus curiae brief on behalf of the Pennsylvania Defense Institute and Pennsylvania Association of Defense Counsel in a case pending in the Pennsylvania Superior Court that involved interpretation of a “regular use” exclusion that commonly appears in underinsured motorist coverage in automobile policies. The Superior Court enforced the exclusion, as PDI and PADC had requested. The plaintiff regularly used a company vehicle for his daily work. But one or two days before the accident, the specific vehicle he had been driving was taken out of service for repairs, and his employer rented a replacement vehicle for the plaintiff’s use. The insurer denied the UIM claim, based on the “regular use” exclusion, because the plaintiff was driving a company vehicle, which was his regular practice. The plaintiff countered that the vehicle he was operating at the time of the accident had not, in fact, been made “regularly” available to him because he only began using it a day or two prior. Relying on its prior decision in Brink v. Erie Ins. Group, 940 A.2d 528 (Pa. Super. 2008), which held that the “regular use” exclusion properly barred coverage for a plaintiff injured in a “fleet vehicle,” even though the plaintiff may have driven a different specific vehicle each day, the Rawl court held that the employer’s temporary rental of a replacement vehicle triggered application of the “regular use” exclusion and barred coverage. “Stated simply,” Rawl explains, “it does not matter whether Mr. Rawl had regular use of a particular vehicle furnished by his employer, but whether he regularly used a vehicle supplied by his employer.” The court, therefore, affirmed the trial court’s award of summary judgment to the carrier.

  • Marshall Dennehey's Appellate Attorneys Convince Superior Court to Vacate $39 Million Judgment Against Client.

    Our appellate attorneys were retained shortly before trial. While driving our client’s truck, an employee struck a car from behind that had stopped in the middle of the road after its hood flew open. The collision injured three members of a family and killed a six-year-old child. The Superior Court vacated the judgment and remanded for a new trial on the basis that the trial judge had improperly granted summary judgment to several vehicle repair shops, all of whom knew of but failed to repair the condition that made the car’s hood fly open.

  • Product Liability Case Dismissed for Lack of Personal Jurisdiction Over a National Corporation

    In this complex lawsuit, the plaintiff suffered traumatic injury when the steering column of his tractor trailer became unyoked, rendering it uncontrollable and causing it to crash. The manufacturer is a Delaware LLC headquartered in North Carolina, but it manufactured the truck at its plant in Virginia. The plaintiff, a Pennsylvania citizen, crashed while driving it in Texas. The suit was filed in Philadelphia, as the LLC’s sole corporate parent is a Pennsylvania corporation. Based upon that, the plaintiff argued that the LLC should be deemed a citizen of Pennsylvania. The trial court sustained our preliminary objections due to lack of jurisdiction. We briefed and argued the appeal the plaintiff filed with the Superior Court, which affirmed on the basis that, despite its Pennsylvania parent, the LLC itself is not “at home” in Pennsylvania because it is formed and headquartered elsewhere. Therefore, there is no general personal jurisdiction over it.

Firm Highlights

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.