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Defense Digest

Message From the Executive Committee

Defense Digest, Vol. 28, No. 12, December 2022

December 1, 2022

by G. Mark Thompson

As the holidays approach, I want to thank our loyal clients and everyone at Marshall Dennehey for helping transform another challenging year into a success.

2022 produced a unique set of circumstances for the country at large and our industry in particular.

These included the Omicron surge at the beginning of the year, pitting a relatively milder variant against a largely vaccinated population. It was somehow less a threat but highly transmissible and, before long, the number of us testing positive had soared. This had a disruptive effect on businesses large and small and got many off to a slow start.

No sooner did Omicron recede did the Great Resignation intensify, which ultimately led to some 40 million Americans changing jobs. Perhaps you are one of them and now settling into a new position. We know both the claims and legal industry saw unprecedented movement this year and often fierce competition for talent.

But there is more. While these events were unfolding, the rate of inflation reached a 40-year high, the stock market tumbled, and our country’s supply chains stalled.

If it seemed like business was anything but usual, that is because it was. Anything but usual.

And yet, through all the uncertainty, Marshall Dennehey remained a beacon of reliability to clients and opportunity for employees. There we stood. An Am Law 200 law firm with 19 offices in seven states. Resolute. Proud to be celebrating 60 years in business. Grateful for our many blessings.

In one of the tightest labor markets in history, we continued to attract legal talent. Throughout the year, we recruited. We hired. We onboarded associates, lateral shareholders with portable business, and, in October, the former Delany Law Group—absorbing much of that firm.

How did we attract such extraordinary trial talent when a number of our competitors had approached them as well? In a conversation before his arrival, the Delany Law Group’s founder, Jack Delany, explained it was Marshall Dennehey’s “integrity, impeccable reputation and progressive ideals.”

This year, in addition to bringing associates, shareholders, and another law firm into Marshall Dennehey, we opened a brand new office in New Haven, Connecticut. In less than a year, it has become one of the fastest growing in the firm.

It has also been energizing, throughout the year, to reunite in person with clients from California to London, England, and resume attending and presenting at industry conferences. We had really missed the personal connections and have enjoyed congratulating so many of you on your promotions since we had last been together.

In that same spirit, one of the most important, consequential, and enduring things we did this year was stand up Marshall Dennehey’s next generation of leaders. Careers advanced at every level, including practice department directors, managing attorneys of our regional offices, practice group silos, and administrative departments. At our Annual Shareholder’s Meeting, 20 different attorneys were elected to shareholder effective January 1st. All this was done with an eye toward diversity and inclusion and was in keeping with an ongoing commitment to elevate women to positions of leadership and responsibility in the firm.

Such progress has attracted attention. In a large-scale, independent survey of law firms to determine where associates are happiest, BTI awarded the firm a coveted spot on its “Associate Satisfaction A-Listers.” Women attorneys, in particular, distinguished Marshall Dennehey for programs that associates value most. We were also named a 2022 “Tipping the Scales” law firm by the Diversity & Flexibility Alliance for our advancement of women in the profession.

This recognition complimented other accolades. Marshall Dennehey was named a “2023 Best Law Firm” in multiple practice areas, both nationally and across numerous regions of the country, by U.S. News – Best Lawyers®. It was recognized by BTI Consulting Group as one of the “Most Recommended Law Firms” in the country by corporate counsel.

Because we have long considered our culture one of the firm’s greatest assets, it was also nice to be applauded, for the tenth consecutive year, as a “Best Place to Work” by the Philadelphia Business Journal.

And as we enter a season of giving, it's worth noting that’s exactly how we celebrated the firm’s 60th Anniversary. By giving back. This year, in lieu of throwing ourselves a big gala, Marshall Dennehey celebrated 60 years in business by providing thousand dollar grants to 60 different charities in the local communities in which we do business. This benefited literacy programs, humane societies, homeless shelters, food banks, libraries, legal aid clinics, substance abuse programs, disease treatment centers, and a host of other worthy causes.

It was a rewarding experience that left us mindful of the significant need all around us.

Folks, it has been quite a year. One marked by adversity but filled with hope, resilience, and the thrill that comes from solving complex problems together. Whether you are a client or an employee, thank you for your contribution to these efforts and for making Marshall Dennehey the extraordinary firm that it is.

On behalf of the Executive Committee, we wish you and your families the very best of holidays and a new year filled with success, happiness, and good health.

Firm Highlights

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

News

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law