Casualty Department

Tiffany Giangiulio, Christopher Santoro and John Carty (Philadelphia, PA) secured a voluntary dismissal on behalf of an aircraft parts supplier in an asbestos mesothelioma case. The plaintiff alleged he was diagnosed with mesothelioma as a result of exposure to numerous asbestos products while doing home renovation work with his father in the 1940s, while in the U.S. Air Force working as an aircraft mechanic between 1953 to 1957, as a self-employed painter between 1958 and 1960, as a civilian aircraft maintenance crew chief at the Willow Grove Air Force Base between 1959 to 1968, and non-occupationally while doing automotive and home repair work. The plaintiff contended our client was the exclusive supplier of asbestos-containing fire sleeves for military aircraft hose assemblies that he worked with almost on a daily basis while at Willow Grove. Based upon the plaintiff’s description of the product during his trial video and discovery depositions, our client took the position that the product could not have been supplied by them. All other defendants either settled or were dismissed, and our client took a no-pay position. As the case neared trial, plaintiff’s counsel presented his evidence as to why the product identified by the plaintiff was accurate and, therefore, why we should settle the case. Through a combination of the plaintiff’s testimony, our witness’s prior testimony, select portions of catalog pages and drawings from the aircraft the plaintiff worked on, and catalog pages from our client’s catalogs, plaintiff’s counsel was persuaded to voluntarily dismiss our client shortly before trial was to begin in the United States District Court for the Eastern District of Pennsylvania.

Gregory Kelley and Candace Hardy (King of Prussia, PA) obtained dismissal of a six-figure claim in Philadelphia County via preliminary objections. The plaintiff/homeowner sued a lighting designer for breach of contract, negligence for $23k in remediation costs, statutory remedies for treble damages and legal fees. The plaintiff alleged the lighting designer was a home improvement contractor who violated the Home Improvement Consumer Protection Act (HICPA) and Unfair Trade Practices and Consumer Protection Law. The plaintiff omitted pertinent facts from the complaint. Using judicial notice, we presented facts from public records to show that the design services were performed in the construction of a new home. We argued that HICPA does not apply to new construction and that the gist of the action doctrine barred the contract claim. The court agreed, dismissed the statutory and contract claims, and remanded the $23k negligence claim to Common Pleas Court arbitration.

Brooks Foland (Harrisburg, PA) obtained a directed verdict following a six-day jury trial in York County, Pennsylvania, under COVID restrictions. In this property damage case, the plaintiff claimed that his house was flooded because 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.

Adam Fogarty (Mount Laurel, NJ) obtained summary judgment relief for a property manager in a lawsuit based on a drive-by shooting. The shooting occurred on a public roadway adjacent to our client’s managed property in Elizabeth, New Jersey. Our client was contracted to manage an adjacent apartment complex, owned by a co-defendant. The court agreed that neither the property owner nor the property manager owed a duty to protect the plaintiffs from this drive-by shooting given the location of the shooting and the lack of foreseeability. Our client’s duty was further limited by the terms of the property management agreement.

Health Care Department

Joseph Hoynoski and Steve Ryan (King of Prussia, PA) secured partial summary judgment for a Central Pennsylvania obstetrician and health system in a birth injury case that also alleged significant urogynecological injuries to the mother. The plaintiff’s firm had previously secured a $10 million award for a similar maternal claim. In this matter, the court agreed that the plaintiff’s expert reports were insufficient and dismissed the corporate negligence claim, the claim for injuries and future economic and non-economic damages of the child, and the mother’s claim for future economic and non-economic damages.

Jaqueline Reynolds (King of Prussia, PA) obtained a nonsuit in a medical professional liability action. Jackie represented a regional hospital and cardiothoracic surgeon in a trial that began on May 13, 2021, before the Honorable Edward Griffith, in the County Court of Common Pleas of Chester County. On the second day of the trial, the court entered a nonsuit in favor of the defendants.

Robert Aldrich (Scranton, PA) obtained dismissal of all claims against his client, an optometrist, in the United States District Court for the Middle District of Pennsylvania. The plaintiff was incarcerated when the allegations at issue arose. He alleged medical malpractice and civil rights violations against various health care providers for treatment received while he was an inmate at SCI-Dallas. Rob filed a motion to dismiss on numerous grounds, including the plaintiff’s claims were timed barred by the statute of limitations, failure to state a viable cause of action, and failure to file a Certificate of Merit pursuant to Pa.R.C.P. 1042.3. The court granted the motion and dismissed all claims, finding they were timed barred by the statute of limitations and because the plaintiff failed to meet his burden that the discovery rule applied.

Professional Liability Department

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

Estelle McGrath (Pittsburgh, PA) represented an insurance broker before a federal district judge from the Southern District of West Virginia, who granted our motion to dismiss and dismissed the suit in its entirety. The plaintiff was a women’s fashion and accessory boutique. The suit arose from a dispute over the plaintiff’s insurance coverage for damages it sustained while being ordered to close by West Virginia’s COVID-19-related orders. The insurance carrier filed a motion to dismiss. Thereafter, the plaintiff voluntarily dismissed the carrier. The broker filed a motion to dismiss all of the claims plead against it, including bad faith, West Virginia’s Unfair Trade Practices Act, estoppel and breach of fiduciary duty. The court dismissed the counts of bad faith and Unfair Trade Practices Act, finding that the plaintiff failed to provide sufficient allegations to support such claims. The court further explained that the plaintiff alleged very few facts specific to the broker and that the allegations plead did not support any unreasonable conduct by the broker, which is required to establish bad faith or deception. For similar reasons, the court held that the plaintiff’s estoppel claim failed. The plaintiff alleged the broker advised that they would have coverage as a result of the COVID-19 orders. The court found that the plaintiff failed to allege how it relied on those representations or how that reliance was detrimental. The alleged representations occurred months after the plaintiff accepted the policy and did not appear to have any impact on the plaintiff’s request for payments from its insurance carrier. Finally, the court explained that the plaintiff failed to identify any West Virginia authority to establish a breach of fiduciary duty against the broker. Regardless, the court found that the plaintiff failed to allege that it requested specific coverage before the broker procured the policy.

Dante Rohr (Mount Laurel, NJ) obtained the dismissal for a former employee accused of trademark infringement. A spray foam insulation company brought a claim for trademark infringement against a former employee. The plaintiff claimed that it had used the mark in connection with its business for over eight years, thereby establishing secondary meaning of the mark in connection with spray foam insulation in the New Jersey market. The plaintiff further alleged the defendants used the mark in marketing and promoting their competing spray foam insulation business in New Jersey. There was no valid claim against our client as there were no facts pled to support the threshold issue, that the plaintiff held a protectable mark. The complaint pled only conclusory allegations that the mark had secondary meaning, and there were no allegations that our client had any interest in the allegedly offending mark.

In another matter handled by Dante, he obtained dismissal of a condominium association board and property manager. Suit was brought by 54 condominium unit owners of a 608-unit, age-restricted planned unit development against the homeowner’s association board, the property manager and the sponsor/developer for the early transfer of control of the condominium association. Dismissal of the board and the property manager was granted in what was properly a unit owner-sponsor/developer dispute over control of the association. The unit owners alleged that the sponsor/developer was no longer offering new units for sale; rather, they were only renting units, thereby triggering the turn-over provisions in the by-laws. No claims against either the board or the property manager were properly pled in the complaint. Accordingly, the complaint was dismissed as to both.

Josh J.T. Byrne (Philadelphia, PA) assisted an attorney and his zoning board clients in vacating sanctions that had been imposed by a trial court judge. Josh helped the attorney in obtaining pre-claim assistance coverage from his insurance carrier, and then worked with him to author an appellate brief challenging the sanctions. In an unpublished opinion, the judge writing for the Commonwealth Court agreed with the arguments presented by Josh and the client. The Commonwealth Court found that the trial court had no jurisdiction to issue sanctions under Section 2503 of the Judicial Code. The Commonwealth Court also found there was no basis to sanction the attorney or his clients under Rule of Civil Procedure 1701, and that the trial court did not provide appropriate due process prior to making a finding of contempt. The trial court’s order for sanctions was vacated.

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

In another ethics grievance, Jack and Jeremy obtained dismissal on behalf of their client, an attorney for the South Jersey Legal Clinic. The ethics grievance filed against their client was filed by a Section 8 housing recipient and alleged that the attorney did not do enough to save the client’s Section 8 housing privileges. However, Jack and Jeremy argued that the client’s Section 8 housing privileges were revoked for cause due to allegations of illicit behavior by the client, and that the attorney warned the client numerous times of the possibility of losing Section 8 housing due to illegal conduct. Upon reviewing this matter, the District Ethics Committee found that the attorney did not violate any of the rules of professional conduct by clear and convincing evidence, and dismissed all allegations against their the attorney.

Jack Slimm, Dante Rohr and Jeremy Zacharias (Mount Laurel, NJ) obtained an order of dismissal through pretrial motions in a complex legal malpractice action heard before the United States District Court. It arose out of an underlying first-party coverage action that involved hundreds of thousands of dollars in connection with building damage caused by Hurricane Sandy. The plaintiffs filed a complaint against our clients, certain individuals and a law firm, alleging claims for legal malpractice. These claims were in connection with the defendants’ interaction with Morris Properties and Ms. Morris in the underlying lawsuit, which concerned the plaintiffs’ right to recover from West American Insurance Company as a result of purported damage suffered from the storm. The plaintiffs’ malpractice claims alleged the defendants: (1) failed to advise Morris Properties or Ms. Morris of the reporting to New Jersey of alleged insurance fraud; (2) failed to properly prepare their client’s principal, Ms. Morris, for her deposition; (3) failed to communicate with their client and advise Ms. Morris of the pending state of New Jersey insurance investigation; and (4) disregarded their duties owed to both Morris Properties and Ms. Morris. Our motion for summary judgment filed on behalf of the defendants asserted that an order for dismissal should be entered because: (1) the plaintiffs’ expert failed to offer an opinion on causation and damages; (2) the individual claims of the plaintiffs should be dismissed since the plaintiffs did not establish an individual claim; and (3) the plaintiffs failed to come forward with proofs to satisfy the punitive damages standard in New Jersey. In granting our motion for summary judgment, the court, in a detailed opinion, held that: (1) the plaintiffs’ expert report was lacking in the damages analysis explanation; (2) no individual attorney-client relationship existed between Ms. Morris and the defendants to confer standing to Ms. Morris to maintain an individual legal malpractice claim; and (3) the plaintiffs’ allegations in support of their punitive damages claim, that the defendants acted willfully and with wanton disregard towards them, were not substantiated by the record.

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

Howard Mankoff (Roseland, NJ) won dismissal on the pleadings of a legal malpractice claim. We represented an attorney, who was employed by the plaintiff as the municipal attorney. The plaintiff sued our client, alleging he knew that the arrangement by which the municipality paid his premiums to the State Health Insurance Plan was illegal. We successfully argued that our client told the municipality as early as 2008 that the arrangement was not legal. The plaintiff argued that the statute of limitations was equitably tolled by our client’s allegedly incorrect advice. We convinced the court to reject the argument and grant our motion.

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

Christopher Conrad and Lara Bream (Harrisburg, PA) 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.

Leonard Leicht and Michelle Michael (Roseland, NJ) successfully obtained dismissal of a New Jersey Law Against Discrimination (NJLAD) perceived disability claim, alleging COVID-19 to be a disability under this statute. This employment discrimination claim involved a matter of first impression in New Jersey. A former employee filed suit asserting perceived disability discrimination under the NJLAD. The plaintiff alleged he was wrongfully terminated based upon his employer’s perception that he had COVID-19. We filed a motion to dismiss in lieu of an answer, asserting the complaint did not set forth a cause of action as COVID-19 is not a recognized disability under the NJLAD. The court granted our motion and agreed that COVID-19 is not a disability under the NJLAD and, therefore, could not be the predicate for a perceived discrimination case.

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

Workers’ Compensation Department

John Swartz (Harrisburg, PA) was successful in having a Worker’s Compensation Judge’s decision denying a termination petition overturned on appeal. The parties had entered into a compromise and release agreement regarding the claimant’s future benefits only. The judge found the employer had presented sufficient evidence for a termination of benefits and accepted the employer’s medical witness. However, the judge denied the termination petition on the basis that the compromise and release agreement settled all benefits. John had specifically reserved the right for a decision on the termination petition, and the compromise and release agreement specifically stated it only applied for future benefits. The Appeal Board agreed and overturned the judge’s decision. The Board’s decision will allow the employer to obtain a significant recovery from the Supersedeas Fund on past due benefits that were paid for over a year, including medical and indemnity benefits.

John was also successful in defending a claim petition before the Worker’s Compensation Judge. The petition was actually granted, but only for a closed period of disability of a little over three months. Benefits were then terminated by the judge on the basis that the claimant failed to present any ongoing evidence of injury. Furthermore, the judge commented that the evidence presented from the employer’s medical expert was credible and persuasive, that the claimant was fully recovered from the left shoulder sprain/strain, despite the treating physician recommending ongoing treatment, and an MRI study of the left shoulder, which had not been completed. In addition, John secured a credit for unemployment compensation benefits paid to the claimant, which cut in half the indemnity benefits owed to claimant.

*Results do not guarantee a similar result.

_{Defense Digest, Vol. 27, No. 4, September 2021 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. © 2021 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.}