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Defense Digest

Message From the Executive Committee

Defense Digest, Vol. 28, No. 1, April 2022

April 1, 2022

by Craig S. Hudson

Over this past year, much has been written and said about what employees of today want from their employer, regardless of the industry. While every so-called expert and pundit has their own perspective, a few consistent themes emerge. Employees want their employer to be invested in their professional and personal development. Employees want constant feedback, affirmation and direction. Employees want to be treated with respect and dignity. Employees want their workplace to have a sense of community and to believe they are a part of a team.

To Marshall Dennehey, the aspirations of today’s employees are nothing new. What today’s employees are purportedly looking for in their workplace environment has always been found at Marshall Dennehey. A staple of our culture has been to treat each and every employee, regardless of their position, with respect and dignity. We have long believed in creating a positive workplace environment that fosters a sense of community and teamwork. We have a tradition of making and keeping our commitment to every employee’s professional development. Our culture is why so many of our professional and non-professional staff spend their entire working life at Marshall Dennehey. It is why we have a number of shareholders who have spent their entire careers at Marshall Dennehey. It is why, when lateral attorneys join us, they lament that they failed to make the jump sooner. It is why many of our administrative directors and managers, who started at an entry level position, now find themselves responsible for numerous employees and key operational functions. 

Our desire is to attract employees who we believe will thrive at Marshall Dennehey. Our process is to involve a number of employees in recruitment and interviewing to bring different perspectives and life experiences to the table. This ensures that we embrace each potential employee’s differences. The paramount reason for doing so is to identify potential employees who will be successful regardless of their background. We look for individuals who have the potential to be long-term employees and who are themselves sincerely looking for such an opportunity. 

Our commitment to the long-term success of our employees is evident immediately after a person is hired and begins working at Marshall Dennehey. Long before “on-boarding” became a catch phrase, we expended a great deal of time, energy and expense in the training of new employees. Every new employee goes through our on-board program. The initial training includes sessions by our administrative departments on our structure, systems and best practices. The training also includes presentations on our history and culture. Additionally, the on-boarding process provides every new employee the opportunity to establish a rapport with other employees at Marshall Dennehey to facilitate teamwork. 

For attorneys, the on-boarding process does not end with their initial training session. Twice a year, we hold a “New Attorney” orientation, where we bring every newly-hired attorney, regardless of their experience, back to Philadelphia for a two-day meeting and dinner. At this two-day session, hosted by Larry Schempp, our Director of Professional Development and Training, recently hired attorneys meet the members of the Executive Committee, the practice group directors, our CFO, COO and other administrative directors. There are workshops and training sessions that are incorporated to enhance their professional development, as well as sessions dedicated to explaining Marshall Dennehey’s structure, history, and culture. 

For our associates in Philadelphia, Larry Schempp hosts frequent in-house “Lunch and Learn” CLEs that not only provide training and professional development, but they also create an opportunity for the associates, regardless of their practice group, to get to know one another and to establish relationships that serve them well during their careers. For the associates in our offices outside of Philadelphia, we hold similar training sessions. In addition, we hold annual two-day conferences that bring associates from several of our offices together. The program, designed by Larry, includes presentations from shareholders, administrative directors, and at least one member of the Executive Committee, all geared to enhance their professional development and success at Marshall Dennehey. 

Every associate is assigned to one of our four Practice Departments, and they are then assigned to work in smaller practice groups within their department. Every new associate is assigned a supervising attorney. Assigning a new associate to work with a limited number of attorneys allows each associate the opportunity to specialize in a particular area and to receive one-on-one training from a more seasoned lawyer. Supervising attorneys are charged with finding opportunities for the associates to interact with claims professionals, clients, opposing counsel, judges, and, when appropriate, to handle depositions and arguments on motions. We want our associates out front, and working with senior attorneys—not confined to working behind the scenes. We believe this is how you effectively train associates. In granting these opportunities, the associate becomes part of the team, and their hard work and accomplishments are recognized. Supervising attorneys and other senior lawyers are encouraged to provide constant feedback and mentoring to the associates in their group. 

Relatedly, every associate has formal mid-year and end-of-year review meetings with their supervising attorney. This lets the associate know what they are doing right and identifies areas that need improvement. During their review, the associate is encouraged to identify their accomplishments, raise any concerns they may have and specify how the firm can assist them in their professional development.

Mentoring of associates at Marshall Dennehey has always played a key role in the development and retention of lawyers. I know that every shareholder at Marshall Dennehey recognizes that they had mentors who were instrumental in their success. Consequently, our more experienced attorneys embrace being a mentor themselves. While we have always encouraged and stressed the importance of mentorship to the success and retention of associates, our Executive Advisory Committee and our Diversity, Equity and Inclusion Committee are both actively engaged in working with our Executive Committee to identify opportunities to further enhance the mentoring process. 

Perhaps nothing demonstrates our desire to create a workplace environment that is collaborative and provides opportunities for success better than having a compensation system for attorneys that is not origination-based. This has always been the foundation of our compensation system. Every attorney’s year-over-year compensation is based on their overall contribution to the firm, not just the hours they have billed or the work they have generated. In determining each attorney’s compensation, a number of factors are considered, including how an attorney treats staff members and other attorneys, and whether they are a team player, willing to assist others. Our system encourages our associates to help one another. Because our compensation system is not origination-based, our lawyers are more apt and, in fact, are encouraged to share opportunities with each other. The lack of an origination-based compensation system is also why our senior attorneys are so receptive to having associates communicate and work directly with clients and claims professionals. A non-origination-based compensation system also serves our desire to become a more diverse and inclusive workforce. 

When I interview associates from other firms, I am surprised to hear that at some firms, associates are not permitted to communicate directly with the client or claims professional. Apparently, this grows out of some concern that the associate may establish a relationship with the client or claims professional and someday take the client away from the partner. Such a concern does not exist at Marshall Dennehey. We want our associates to have direct communications with claims professionals and clients. In doing so, we make associates part of the team and invest them in serving our clients’ best interests. 

Another part of our firm structure and culture that creates a sense of being part of a team is that every shareholder owns one share of stock. We don’t have equity and non-equity shareholders. And we do elevate associates to shareholder. In fact, we do it every year. Just this past year, we welcomed 17 new shareholders. Many of them have spent their entire legal careers at Marshall Dennehey. These 17 newly-elected shareholders have demonstrated that they possess the talent, drive, and dedication to be successful attorneys and, importantly, that they have the qualities that enhance our firm’s culture. 

Perhaps there is no better example of Marshall Dennehey’s sense of commitment to its professional and non-professional staff than the fact that, back in the early stages of the pandemic, when we went into a “lockdown” of unknown duration, we decided that we would not lay off any employees or cut compensation. This was done because we at Marshall Dennehey are a community that stands together. 

As a community, we emphasize that we talk to each other face-to-face and not through a computer screen or during a scheduled Zoom call. We need to confront issues together and share our insights and experiences. None of this happens if we are working from home. This is why we adopted a hybrid return-to-the-office policy that requires professional and non-professional staff to work a specified minimum number of days in the office. A majority of our professional and non-professional staff have elected to return to their pre-pandemic routine of working in the office every day. This is a testament to our positive and fulfilling working environment.

Marshall Dennehey’s desire to create a positive and enriching workplace environment is nothing new. We described our culture and our continued aspirations for that culture on our website well over a decade ago: 

•    It’s a culture that treats employees fairly and respectfully, be they shareholders, associates, administrative assistants, receptionists or file clerks. 
•    It’s a culture that recognizes and promotes diversity among its members. 
•    It's a culture in which lawyers like and trust one another and like and trust their leadership.
•    It's a culture that hires employees with the hope and expectation they will finish their careers at the firm. 
•    It's a culture that encourages and rewards loyalty, humility and teamwork. 

This statement of Marshall Dennehey’s culture remains just as accurate and important today as it did many years ago. It is a culture we are dedicated to preserving. 
 

Defense Digest, Vol. 28, No. 1, April 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

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.

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.

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.