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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 29, No. 3, September 2023

September 1, 2023

RECOGNITION

121 Marshall Dennehey Attorneys Recognized in the 2024 Editions of The Best Lawyers in America® and The Best Lawyers: Ones to Watch® in America
Marshall Dennehey is proud to highlight the firm’s 121 attorneys who have been recognized in the 2024 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, five of the firm’s attorneys received the Best Lawyers® 2024 “Lawyer of the Year” awards in their respective practice areas and demographic regions. 

Marshall Dennehey Named a Finalist in The American Lawyer Regional Litigation Departments of the Year Awards for New Jersey and Florida
Marshall Dennehey has been named a finalist in The American Lawyer Regional Litigation Departments of the Year awards in both New Jersey and Florida. Winners will be announced at Law.com’s annual awards gala in New York, NY on November 15, 2023.

Five Marshall Dennehey Attorneys Selected to the 2023 Florida Super Lawyers List
Five attorneys from the Florida offices of Marshall Dennehey have been selected to the 2023 edition of Florida Super Lawyers magazine. A Thomson Reuters business, Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

Marshall Dennehey Announces 2023 Pennsylvania Super Lawyers and Rising Stars
Twenty-seven attorneys across Marshall Dennehey's six Pennsylvania offices have been selected to the 2023 edition of Pennsylvania Super Lawyers magazine. A Thomson Reuters business, Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. 

Marshall Dennehey Announces 2023 New Jersey Super Lawyers and Rising Stars
Eight attorneys from Marshall Dennehey’s Mount Laurel and Roseland, New Jersey offices have been selected to the 2023 edition of New Jersey Super Lawyers magazine. A Thomson Reuters business, Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

Marshall Dennehey Continues “Best Places to Work” Streak for 11th Year
For the 11th year in a row, Marshall Dennehey has been selected one of the Philadelphia region's "Best Places to Work" by the Philadelphia Business Journal. The award recognizes the company's achievements in creating a positive work environment that attracts and retains employees through a combination of benefits, working conditions and company culture.

Clients Name Marshall Dennehey to the BTI Client Service 100
Marshall Dennehey has earned a coveted spot in the BTI Client Service 100 report, as recommended by corporate counsel. The report is based on research with more than 24,000 buyers of professional services, who rank firms according to performance of 17 activities that drive superior client relationships. Among the report’s findings, Marshall Dennehey was also one of only 50 law firms named to the BTI Midsize Client Service Masters list. The survey is one of the leading measures of its kind. Rankings are purely research-driven and are not subject to law firm submissions, self-referrals, suggestions, or payments.

Bradley Blystone Recognized as Notable Managing Partner by Florida Trend's Legal Elite
Bradley P. Blystone, shareholder and managing attorney of Marshall Dennehey's Orlando, Florida office, has been selected a Notable Managing Partner by Florida Trend Legal Elite. The award recognizes attorneys who have made a measurable and specific impact not only in their legal practice but also in their community.

 

OTHER NEWS

Kimberly Kanoff Berman (Fort Lauderdale, FL) was appointed to two new positions. First, she has been appointed Vice Chair (Live Programs) of the CLE Committee, Appellate Practice Section of the Florida Bar and, second, as Secretary of the Florida Supreme Court Historical Society.

Ryan Hauck (Pittsburgh, PA) has been elected by his peers to a second term on the Council of the Allegheny County Bar Association’s Workers’ Compensation Section. The committee supports the resolution of problems that are identified within the practice of workers’ compensation via interaction with the Bureau of Workers’ Compensation and its administrative personnel.

Peggy Smith Bush (Orlando, FL) received the University of North Alabama 2023 Alumni Award for Public Service. She was honored for her strong commitment to professional and community activities that have benefited others over the course of her career.

Matthew Keris (Scranton, PA) was named the recipient of the Defense Research Institute (DRI) Foundation Community Service Award. The award honors a DRI member who has  demonstrated a commitment to the well-being of the general public by initiating or participating in programs which have a positive impact on the community. Matt has been active in the leadership of DRI and is the outgoing President of the DRI Foundation which provides support to DRI members and their communities. Proceeds raised by the Foundation go directly to funding DRI charitable initiatives including community service, member attorney support programs, disaster recovery, support for the judicial system, and diversity programming.

 

PUBLISHED ARTICLES

Samuel Cohen and Ryan Friel (both in Philadelphia, PA) authored “FINRA Proposal Creates Urgency for Brokers Seeking Expungement of Customer Complaints,” which appeared in the May 4, 2023, edition of The Legal Intelligencer.

Brad Haas’ (Pittsburgh, PA) article, “Tracking the Truth: Utilizing App Data in Personal Injury Defense,” was published in the July 6, 2023, edition of The Legal Intelligencer.

Holly Hamilton’s (Fort Lauderdale, FL) article, “Consider the Charge Before Responding to An EEOC Investigation,” was published on the PLUS Blog on June 22, 2023.

John Hare (Philadelphia, PA) and Pennsylvania Superior Court President Judge Jack Panella authored a publication entitled 125 Years of Justice, which is a history of the Superior Court that will be presented during an event commemorating the Court’s 125th anniversary. Also, John authored an article entitled “Medical Malpractice Venue Un-Reform” in the Claims Judicial and Legislative Affairs (CJLA) Quarterly Digest. John was also quoted in The Philadelphia Inquirer article, “Jury Verdicts Like the $183 Million Award Against Penn Medicine Can Be Tied Up for Years, But Usually Stand.”

William Murphy’s (Roseland, NJ) article “The Implications of Remote Work on Workers’ Compensation” was published in the June 6, 2023, edition of The New Jersey Law Journal.

Tony Natale (Philadelphia, PA) authored the article, “Why Do Claimants Lie? Because They Can and Swift Prosecution Is the Only Way to Deter It,” appearing in the June 2023 issue of CLM Magazine.

“Why Your Mental Health Matters to the Disciplinary Board,” by Josh Byrne and Alesia Sulock (Philadelphia, PA) was published in the May 16, 2023, edition of The Legal Intelligencer. On July 14, The Legal Intelligencer published “You Diligently Protect Your Clients; What About You? Part 1 (The Beginning),” also by Alesia and Josh.

David Tomeo (Roseland, NJ) authored the article, “Turnabout Is Fair Play: When an Expert Switches Sides on the Eve of Trial,” appearing in the New Jersey Law Journal’s Medical Malpractice Supplement.

Eli Hassinger (Philadelphia, PA) authored the article, “Pa. High Court Doubles Down on the Workers’ Comp Act’s Exclusivity Provision,” for Pennsylvania Law Weekly. 

 

SPEAKING ENGAGEMENTS

Mohamed Bakry and Mike Turner (both of Philadelphia, PA) presented “Know Your Worth: Promotion, Rate, and Salary” at the DRI Diversity for Success Seminar.

Jeffrey Bates (Philadelphia, PA) presented “Anatomy of a Lawsuit” at the annual meeting of the Pennsylvania Prosthodontic Association.

Michael Bradford (Tampa, FL) presented “Here Comes the Boom: Cranes and Accidents” at the recent Florida Defense Lawyers Association Conference.

Ryan Burns (Fort Lauderdale, FL) presented “Florida’s Tort Reform” to members of RIMS Broward County Chapter.

Josh Byrne (Philadelphia, PA) spoke to the Monroe County Bar Association on legal malpractice avoidance.

Samuel Cohen (Philadelphia, PA) presented “Educational and Technology Tools that May Save you in the Long Run if you are Named in an Arbitration/Lawsuit” at the Annual IBDC-RIAC Risk Management Conference in Park City, Utah.

James Cole (Philadelphia, PA), Jeffrey Rapattoni (Mount Laurel, NJ) and Christopher Woodward (Harrisburg, PA) were featured speakers at the 2023 Pennsylvania Insurance Fraud Conference. Jim and Chris presented “Untying Tangled Titles – How Property Insurance Drives Fraud,” and Jeff presented “Legal Update.”

Lee Durivage (Philadelphia, PA) co-presented “You Have Headaches? We Have Solutions” at the Public Risk Management Association Annual Conference.

Benjamin Durstein and Keri Morris-Johnston (Wilmington, DE) were featured speakers at the Workers’ Compensation Seminar 2023, co-hosted by the Delaware State Bar Association and Industrial Accident Board. Ben was a panelist for “Ethics and the Duty to the Tribunal and Opposing Counsel,” while Keri participated as part of a panel discussing “The Legal Implications of Successive Injuries.”

Scott Eberle (Pittsburgh, PA) spoke to the Westmoreland County Bar Association on legal malpractice avoidance. 

Scott Eberle (Pittsburgh, PA) and Alesia Sulock (Philadelphia, PA) presented on a panel discussion, “Avoiding Legal Malpractice,” on behalf of the Pennsylvania Bar Association and in connection with the Pennsylvania Bar Institute. The presentation was a live broadcast to several hundred attorneys across Pennsylvania.

Linda Wagner Farrell (Jacksonville, FL) was a faculty member at the Office of Judges of Compensation Claims “Work Comp Academy 2023: The Next Generation.” Linda presented on evidence and trial memorandum.

John Gonzales (Philadelphia, PA) spoke at the 110th Annual Pennsylvania Chiefs of Police Association Annual Conference and Seminar. John spoke on “Recent Trends in Police Civil Rights Litigation.”

John Hare (Philadelphia, PA) presented a seminar on civil litigation developments for the Pennsylvania Coalition for Civil Justice Reform. The seminar was held at the Pennsylvania Manufacturers Association facility in Harrisburg and was attended by representatives from more than forty insurance carriers and corporations. John also presented the “Pennsylvania Supreme Court Update” at the annual Appellate Update CLE course for the Pennsylvania Bar Association.

Matthew Keris (Scranton, PA) and fellow panelists discussed the criminalization of health care errors at the Medical Professional Liability Association annual conference. Matt was also a panelist at the fourth annual American Legal Connections Healthcare Symposium in Atlanta, Georgia. Matt joined a distinguished panel of speakers to discuss “Criminal Prosecutions: Dobbs and the Future of Care.”

Mark Kozlowski (Scranton, PA) presented “FLSA – Wage and Labor Laws” for NEPA SHRM (Northeast Pennsylvania Chapter of Society of Human Resource Management). This was the second presentation in a four-part HR 101 series Mark is participating in for NEPA SHRM.

Estelle McGrath (Pittsburgh, PA) presented a webinar, “How to Avoid Mistakes with Mismanagement of Life & Health Claims,” with members of NAPA (National Association of Professional Agents).

Missy Minehan (Harrisburg, PA) presented “Trends, Tips & Tricks in the Defense of Long-Term Care Facilities” at the Pennsylvania Association for Health Care Risk Management conference.

A.C. Nash (Fort Lauderdale, FL) was in New York City to present “Civil Rights for Uncivil Times” at the International Association of Claims Professionals’ 2023 Conference. 

Jeffrey Rapattoni (Mount Laurel, NJ) presented “Top 10 Cases Impacting Fraud Fighting & the SIU” at the IASIU New England Chapter’s Annual Seminar.

Courtney Schulnick (Philadelphia, PA) was part of a panel for the Philadelphia Law Department’s annual CLE program held at the Pennsylvania Convention Center. During this two-hour CLE, Courtney was joined by Alison Lintal, Esq., visiting Assistant Professor of Law and Director of the Externship Program at Penn State University Dickinson Law School and Dena Lefkowitz, Esq., author, business and career coach for lawyers. The panel discussed Emotional Intelligence (EI) and how it can help attorneys to handle interpersonal relations judiciously and empathetically. Courtney focused on mindfulness practices that can help us step out of reactivity and choose how to most skillfully respond, whether it’s trying a case in court, dealing with a difficult adversary, serving the needs of our clients, working together with colleagues, or caring for a loved one.

Jack Slimm (Mount Laurel, NJ) spoke at the Camden County Bar Association webinar “Mediation Process & Techniques in Civil & Chancery Disputes: Producing the Best Results for Your Client.” 

Sunny Sparano (Roseland, NJ) spoke at the New Jersey Institute for Continuing Legal Education 2023 Construction Law Forum. The title of her session was “Coordinating the Design Defense.” 

Frank Wickersham (King of Prussia, PA) presented “One Less Zombie in the Workers’ Compensation Apocalypse” at the CLM 2023 Workers Compensation, Casualty & Risk Management Conference.

Heather Byrer Carbone (Jacksonville, FL) was a featured speaker at the 77th Annual Workers’ Compensation Institute Educational Conference & 34th Safety & Health Conference on August 22 in Orlando. Heather joined a panel that presented “Hot Topics for Attorneys,” which delved into the most important and controversial case law decided by the Florida appellate courts and the most relevant amendments to the law enacted by the Florida Legislature.

Jeremy Zacharias (Mount Laurel, NJ) presented “Commercial Real Estate Transactions: From Handshake to Closing” at the NJICLE seminar.

Kimberly Berman (Fort Lauderdale, FL) was a panelist on The Florida Bar Appellate Practice Section’s Audio Webcast, “A Not-So-”Little” Problem With Precedent: Intra-District Conflicts in Florida’s District Court of Appeals.” The webcast explored the question of what happens when two panels of the same appellate court disagree—which opinion controls future disputes? Kimberly and her co-presenters discussed the historical jurisprudence underpinning the debate, and gave advice for lawyers who confront intra-district conflicts in their own cases. More than 100 judges and appellate law practitioners attended the program.

Andrea Rock (Philadelphia, PA) presented a webinar as part of the Philadelphia Bar Association Workers’ Comp Compliance Crusher 2023: Update on Important Issues in Workers' Compensation Practice. In “Navigating the Medicare Maze,” Andrea and plaintiff’s counsel co-panelist discussed the basics of Medicare, including including who exactly is a Medicare Beneficiary and the reasonable expectation of Medicare enrollment. They highlighted how knowing the Medicare laws, the intricacies of Medicare Set-aside allocations, the effect of conditional payments, and the impact Medicare can have on settlement, are all imperative in the representation of clients.

 

Defense Digest, Vol. 29, No. 3, September 2023, is prepared by Marshall Dennehey 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. © 2023 Marshall Dennehey. 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

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

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

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.