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Defense Digest

On the Pulse…Other Notable Achievements

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

December 1, 2022

MARSHALL DENNEHEY COMBINES FORCES WITH LITIGATION BOUTIQUE, DELANY LAW

On October 31, 2022, the firm joined forces with the attorneys and staff of the Philadelphia-based litigation boutique Delany Law. Helmed by veteran trial attorney Jack Delany, the union brings three shareholders, one special counsel, one associate, two paralegals, and an experienced group of support staff to our Philadelphia and Mount Laurel, New Jersey, offices. All of the attorneys will practice in the firm’s Casualty Department.

“We are delighted to welcome the attorneys and staff of Delaney Law to the firm,” said G. Mark Thompson, our president & CEO. “Given our complimentary practices and the fact that our lawyers have long known, liked and respected one another, we felt uniting under the Marshall Dennehey umbrella would make us both better. The pairing affords Marshall Dennehey exceptional trial talent and greater bench strength in Pennsylvania, New York and New Jersey, while providing the lawyers and clients of Delany Law the opportunity to capitalize on the resources and efficiencies that we can provide as one of the country’s largest defense litigation firms.”

Jack Delany, founding partner of Delany Law and a well-known defense trial attorney in the Philadelphia region, joins our Philadelphia office as a shareholder. Jack defends catastrophic, high-profile, high-exposure cases against some of the country’s most formidable plaintiff firms. He has taken more than 60 jury trials to conclusion, as well as hundreds of bench trials, arbitrations and mediations. He has represented many Fortune 500 companies directly and as insureds and has handled complex litigation matters at the federal and state levels, as well as in administrative agencies and alternate dispute resolution forums. Jack also serves as national coordinating counsel for several product manufacturers.

Andrew Campbell and Kristen Worley also join our Philadelphia office as shareholders. Andrew has more than 20 years of experience in civil litigation and insurance defense, with specific focus in the areas of construction, fire and product litigation. Kristen has two decades of litigation and trial experience, representing clients in Pennsylvania and New Jersey in matters involving product liability, personal injury and commercial auto litigation. Andy Ciganek will join the Philadelphia office as an associate. With a strong background in civil litigation, he has successfully handled personal injury, wrongful death, premises liability, aviation, maritime and class action lawsuits.

Lastly, Michael Logue joins us as special counsel in the Mount Laurel office. Mike is an accomplished personal injury trial attorney and has obtained successful outcomes in matters involving bodily injury, workers’ compensation and property damage claims.

Jack Delany commented on the merger. “After 33 great years of running my own firm, the time has come to join forces with a larger firm that can provide the same level of intelligent, innovative resources paired with the solid support that my clients and my employees deserve. That firm, our new home, is Marshall Dennehey, one of the finest legal defense firms in the business for decades. We are thrilled to join this truly amazing team. They have the integrity, the impeccable reputation and the progressive ideals that will move our practice into an exciting new phase of history.”

 

RECOGNITION

Six attorneys from our New York City, Westchester County and Long Island offices have been selected to the 2022 edition of New York Metro 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. Each year, no more than five percent of the lawyers in a state are selected as Super Lawyers and no more than 2.5 percent are selected for Super Lawyer Rising Stars. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. 

2022 New York Metro Super Lawyers

  • Nicholas P. Chrysanthem, Professional Liability: Defense (NYC)
  • James P. Connors, Personal Injury General: Defense (Westchester)

2022 New York Metro Super Lawyer Rising Stars

  • Dean Aronin, Transportation/Maritime (NYC)
  • Adam C. Calvert, Personal Injury General: Defense (NYC)
  • Preston Holmes, Transportation/Maritime (Westchester County)
  • Robert Demeusy, Personal Injury – Products: Defense (Long Island)

 

SEMINARS

Robert Aldrich (Scranton, PA) presented “Hot Topics in Healthcare” at the PAHCM (Pennsylvania Association of Health Care Risk Management) Fall conference.

Kimberly Kanoff Berman (Fort Lauderdale, FL) moderated a panel titled “Brief Writing for the Third DCA” at the Florida Bar’s Appellate Practice’s Practicing Before the Florida Third District Court of Appeal 2022 CLE seminar.

Christopher Block (Roseland, NJ) presented “Mastering the Professional Malpractice Mediation” at the PLDF Annual Meeting in Chicago.

Josh Byrne (Philadelphia, PA) participated in the Dauphin County Bar Association’s Member Benefit Compliance Session. Josh co-presented the ethics portion titled “PBA Malpractice Avoidance.”

Samuel Cohen (Philadelphia, PA) spoke on a panel at the Alternative & Direct Investment Securities Association (ADISA) trade conference in Las Vegas. The panel was titled “Hiring with Caution: How One Bad Apple Can Spoil Your Business.”

Christopher Conrad (Harrisburg, PA) co-presented “Special Education Litigation: Best Practices for Avoiding Liability, and Strategies for a Successful Defense” at the PLDF Annual Meeting in Chicago. Chris also presented “Safe Schools and Bullying” at the Pennsylvania Bar Institute’s Exceptional Children Conference.

Jonathon Cross (Philadelphia, PA) co-presented “Concussion in Sport - Causation and Risk Management in the Spotlight” at a recent Insurance Law Global webinar.

Brooks Foland (Harrisburg, PA) co-moderated the webinar “In the Zoom: Ins and Outs of Remote Mediation” for the Dauphin County Bar Association.

John Hare (Philadelphia, PA) spoke at the 2022 Convention of the Defense Research Institute. John addressed the history and notable decisions of the Pennsylvania Supreme Court. John also spoke at the 2022 Pennsylvania Governor’s Office of General Counsel University. The event is the yearly training program for attorneys in the executive branch of state government with more than 500 live attendees. John spoke at the invitation of the Pennsylvania Supreme Court and discussed the Court’s functions and notable decisions.

Mark Kozlowski (Scranton, PA) presented the webinar “Employment Law Basics – The Basis of OSHA, FLSA, ADA & More” for the Society for Human Resource Risk Management (SHRM).

Mary Kate McGrath and Adam J. Fulginitti (Philadelphia, PA) made a telehealth presentation for PAHCM (Pennsylvania Association of Health Care Risk Management).

Harold Moroknek (Westchester, NY) co-presented at the Auto Haulers Association Fall Expo in Orlando. The seminar was titled “Where Are You Leaking? Pain Points and Missteps: Things That Cost a Motor Carrier Unnecessary Defense and Indemnity Dollars.”

A.C. Nash (Fort Lauderdale, FL) presented “Talkin’ Bout My Generations” to the RIMS Broward County Chapter.

Tony Natale (Philadelphia, PA) and Robin Romano (Philadelphia, PA) were co-presenters at this year’s Philly I-Day conference. Their session, “Hot Topics in Worker’s Comp and Litigation Trends,” focused on trends and case law that are making waves in Pennsylvania workers’ compensation litigation, including unreasonable contest, discharge from employment issues within a workers’ compensation case, head injuries with post-concussion syndrome, and specific loss and extension to full body. Robin and Tony analyzed the impact of these cases on future similar litigation, and provided tips for mitigating exposures and liabilities from a risk management perspective. The presentation was attended by local insurance, claims and legal professionals.

Jeff Rapattoni (Mount Laurel, NJ) participated in various sessions at the International Association of Special Investigation Units conference. In “The Management of Brand Protection,” Jeff joined a panel that explored current risks in investigative insurance fraud while balancing the importance of protecting a company’s brand. The use of desk investigations, pass through claims, post-COVID major case and best practices were explored. Other topics included avoiding bad faith, proper statement techniques, and technology integration between claims and SIU. Jeff also co-presented “Legal Update: Emerging Legal and Legislative Trends in Fraud Fighting,” where a panel of legal experts involved in insurance fraud defense discussed current and emerging legal and legislative trends in the fight against fraud. Finally, he presented an Ethics session focused on investigator ethics, heard comments and critiques on current case law impacting the SIU and how it relates to the ethical investigation of insurance fraud moving forward.

Jeremy Zacharias (Mount Laurel, NJ) presented at an all-day CLE for the New Jersey State Bar Association titled “Commercial Real Estate Transactions: from Fist Bump to Closing.” Jeremy’s section related to ethical considerations pertaining to commercial real estate and the new age of cannabis litigation and the use of commercial space for cannabis dispensaries. Jeremy’s topic focused on the Rules of Professional Conduct and the various duties to disclose certain information during real estate transactions in a commercial setting and duties to third parties relying on an attorney’s advice. Additionally, Jeremy was a panelist at the Rutgers’

School of Law’s Professionalism Seminar, which is offered twice a year, and Jeremy is a recurring panelist to discuss the defense of ethics grievances and the RPCs in the state of New Jersey. The audience included first year law students learning about the Rules of Professional Conduct. The panel included a federal judge and an attorney from the

Public Defender’s Office. Jeremy discussed the importance of the Rules of Professional Conduct in daily practice and applications of the Rules of Professional Conduct in practical examples.

 

OTHER NEWS

Four attorneys from our Wilmington, Delaware, office have been selected 2022 “Top Lawyers” by Delaware Today magazine. The recognized attorneys are Bradley J. Goewert and Thomas J. Marcoz, Jr. for medical malpractice defense; and Benjamin K. Durstein and Keri L. Morris-Johnston for workers’ compensation employer defense.

 

PUBLISHED ARTICLES

Josh Byrne’s (Philadelphia, PA) article, “What to Think About When Deciding on Legal Malpractice Insurance,” was published by PLUS Blog on September 12, 2022. You can read the article here: https://plusblog.org/2022/09/12/what-to-think-about-when-deciding-on-legal-malpractice-insurance/.

Josh Byrne’s (Philadelphia, PA) article “Practical Considerations for Those Facing Suspension or Disbarment” was published in The Legal Intelligencer on October 3, 2022. You can read the article here: https://www.law.com/thelegalintelligencer/2022/10/03/practical-considerations-for-those-facing-suspension-or-disbarment/.

Josh Byrne (Philadelphia, PA) was quoted in The Legal Intelligencer article, “‘You Have to Battle When It Should Be a Walk in the Park’: Ethics Lawyers Say Attorney Discipline Has Gotten Tougher,” on September 1, 2022. You can read the article here: https://www.law.com/thelegalintelligencer/2022/09/01/you-have-to-battle-when-it-should-be-a-walk-in-the-park-ethics-lawyers-say-attorney-discipline-has-gotten-tougher/.

Matthew Keris (Scranton, PA) was quoted in the third quarter issue of Medical Liability magazine’s cover story, which explores the implications of artificial intelligence for MPL carriers and health care providers. You can read the article here: https://www.mplassociation.org/Web/Publications/Inside_Medical_Liability/Issues/2022/Q3/articles/AI_Offers_Opportunities_and_Risks_for_Providers.aspx.

Tony Natale (Philadelphia, PA) sat down with AM Best’s Insurance Law Podcast to discuss workers’ compensation fraud. Listen to the podcast here: https://lnkd.in/eTMvMkVe.

Alexander Possino’s (Pittsburgh, PA) article “Navigating Uncharted Territory: How to Avoid Danger Zones in the Evolving Landscape of Medicaid Liens” was published in the September 2022 edition of CLM Magazine. You can read the article here: https://736506f6.flowpaper.com/CLMSeptember2022/?utm_campaign=2210916_CLM%20Digital%20Edition%20Announcement%20922&utm_medium=email&utm_source=CLM&dm_i=37P3,1BDYC,2U2OSA,5514V,1#page=10.

Andrea Rock’s (Philadelphia, PA) article “When Filing a Petition Can Result in an Award of Attorney Fees” was published in The Legal Intelligencer on October 6, 2022. You can read the article here: https://www.law.com/thelegalintelligencer/2022/10/06/when-filing-a-petition-can-result-in-an-award-of-attorney-fees/.

Charlene Seibert’s (Pittsburgh, PA) article “The ‘Jaundiced Eye’ and the Fight to Prevent Inherent Speculation in Legal Malpractice Cases” was published by The Legal Intelligencer on October 6, 2022. You can read the article here: https://www.law.com/thelegalintelligencer/2022/10/06/the-jaundiced-eye-and-the-fight-to-prevent-inherent-speculation-in-legal-malpractice-cases/.

Robert Stanko’s and Andrew Goldstein’s (King of Prussia, PA) article “Increase in Crime Forces Local Businesses Into a Catch-22” was published in the October 29, 2022, issue of The Legal Intelligencer. You can read the article here: https://marshalldennehey.com/articles/increase-crime-forces-local-businesses-catch-22.

 

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

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.

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

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. 

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

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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.

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