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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 27, No. 4, September 2021

September 1, 2021

Appointments

Karen Grethlein (Philadelphia, PA) has been re-appointed for a three-year term as the Young Lawyer Delegate for Philadelphia in the Pennsylvania Bar Association House of Delegates.

Josh J.T. Byrne (Philadelphia, PA) has been appointed co-chair of the Pennsylvania Bar Association’s Amicus Curiae Brief Committee. The position became effective May 21, 2021, and will terminate at the close of the 2022 PBA Annual Meeting. Josh has drafted or co-authored several amicus curiae briefs on behalf of the Pennsylvania Bar Association in his capacity as co-chair of its Professional Liability Committee.

Recognition

For the ninth year running, Marshall Dennehey was selected by the Philadelphia Business Journal as one of the Philadelphia region’s “Best Places to Work.” The award recognizes our achievements in creating a positive work environment that attracts and retains employees through a combination of benefits, working conditions and company culture. We have been recognized as a “Best Place to Work” every year since 2013, winning the extra large company category in 2017, 2019 and 2020. Hundreds of companies submitted nominations to the program, which ranks the top employers according to scores given to the companies by their own workers. Our Delaware Valley locations, including our Philadelphia headquarters and offices in King of Prussia and Mount Laurel, New Jersey, were included in the survey. “We are always pleased to learn that we have been selected, but this year might be the sweetest of all,” said Marshall Dennehey President and CEO, G. Mark Thompson. “Our employees rose to every challenge presented by the pandemic, and then some. We are so grateful for their hard work and dedication, and we will continue to do whatever we can to maintain and improve our working environment so that all of our employees are engaged and have the opportunity to succeed.”

The Philadelphia Chapter of the National Bar Association Women Lawyers Division (NBA/WLD) selected Butler “Buck” Buchanan (Philadelphia, PA) as the 2021 recipient of its annual Renaissance Man Award. The award recognizes an African American man who has demonstrated commitment to the empowerment, advancement and full participation of women of color in the legal profession. It additionally honors a legacy of professional excellence and commitment to the African American legal community, including support of the NBA/WLD. Buck “accepted” the award during the organization’s virtual Jazz in June Awards Ceremony and Cocktail Reception on June 17, 2021. Congratulations, Buck!

Elizabeth Ferguson (Jacksonville, FL) has been recognized in Florida Trend magazine’s 2021 Legal Elite list in the category of Construction law. Elizabeth was previously featured on the Legal Elite list in 2014, 2018 and 2020, as well as the Up & Comers list in 2008 and 2010-2013. Now in its 18th year, Florida Legal Elite presents the state’s top licensed and practicing attorneys selected by their peers. The resulting list represents less than 2% of the active Florida Bar members who practice in Florida. Elizabeth has been Board Certified in Construction Law by The Florida Bar since 2009, and she is a former board member of the Florida Board of Professional Engineers. She is a Construction Panel Arbitrator for the American Arbitration Association, has served as a professor of Construction Law, and is a frequent speaker on legal and construction industry issues. Additionally, she is a past president of the Jacksonville Bar Association.

Daniel McDermott and Edward Radzik (New York, NY) have once again been cited as “Notable Practitioners” in the 2021 edition of Chambers USA. Both attorneys were recognized in the Transportation: Shipping/Maritime: Litigation (New York), Nationwide Band 3 category. Dan was described by clients as, “His counsel is always sound and he approaches things in a practical manner.” Clients remarked of Ed: “He is a solid cargo attorney who is knowledgeable and a formidable opponent.” Congratulations to Dan and Ed!

2021 Florida Super Lawyers & Florida Rising Stars

Seven attorneys from our Florida offices have been selected to the 2021 edition of Florida Super Lawyers magazine. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. Our attorneys selected to the 2021 Florida Super Lawyers list include:

  • Michael J. Bradford, Civil Litigation Defense.
  • Michael J. DeCandio, Construction Litigation.
  • Elizabeth B. Ferguson, Construction Litigation.
  • Alan C. “A.C.” Nash, Civil Litigation Defense.

Our attorneys selected to the 2021 Florida Super Lawyers Rising Stars list include:

  • Julie Cunningham Aiello, Transportation & Maritime.
  • Amanda J. Podlucky, Personal Injury Defense.
  • Irene Thaler, Insurance Coverage.

2021 Pennsylvania Super Lawyers and Rising Stars

Forty-five attorneys from our Pennsylvania offices have been selected to the 2021 edition of Pennsylvania Super Lawyers magazine. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. Receiving special recognition for the 16th consecutive year is Dan Sherry (King of Prussia, PA), who has been named to the “Top 100 Attorneys in Pennsylvania” and the “Top 100 Attorneys in Philadelphia” Super Lawyer lists. For the fourth year in a row, John Hare (Philadelphia, PA) was named to the “Top 100 Attorneys in Pennsylvania” and the “Top 100 Attorneys in Philadelphia” Super Lawyer lists. Our 2021 Pennsylvania Super Lawyers include:

  • Harrisburg: Brooks Foland, John Ninosky, Edwin Schwartz
  • King of Prussia: Audrey Copeland, Kevin Fitzpatrick, Chandler Hosmer, Edward McGinn, Donna Modestine, Stephen Ryan, Daniel Sherry
  • Philadelphia: William Banton, Ralph Bocchino, Kimberly Boyer-Cohen, Buck Buchanan, Raphael Duran, Scott Gemberling, Tiffany Giangiulio, John Hare, Niki Ingram, Kate Kramer, Bruce McKissock, Michele Punturi, Bradley Remick, Daniel Ryan, Joseph Santarone, Vlada Tasich, Mark Thompson, Michael Turner, Thomas Wagner
  • Pittsburgh: Dennis Roman, Stuart Sostmann

Our 2021 Pennsylvania Super Lawyer Rising Stars include:

  • Harrisburg: Brittany Bakshi
  • Philadelphia: Nicholas Bowers, Lee Durivage, Ashley Eldridge, Dana Gittleman, Andrew Goldstein, Kimberly House, Robert Stanko, Alesia Sulock, Daniel Tran
  • Pittsburgh: Jillian Corbett, Gregory Graham, Patrick Reilly
  • Scranton: Mark Kozlowski

Published Articles

Kimberly Berman (Fort Lauderdale, FL) was featured in Law.com’s “How I Made Partner” series. The article discusses her career trajectory from law school to now. Read the article: https://www.law.com/2021/05/04/how-i-made-partner-i-opened-the-door-to-partnership-by-becoming-an-appellate-specialist-says-kimberly-berman-of-marshall-dennehey/.

Josh J. T. Byrne (Philadelphia, PA) authored the article “How Are You Incorrectly Using Your IOLTA Account (Part II)?,” appearing in the May 18, 2021, issue of The Legal Intelligencer. Read the article here: https://www.law.com/thelegalintelligencer/2021/05/18/how-are-you-incorrectly-using-your-iolta-account-part-ii/.

Heather LaBombardi and Nataliana Guida (Roseland, NJ) authored the article “Vicarious Liability—Do You Really Need an Affidavit of Merit?” for the New Jersey Law Journal. Read the article here: https://www.law.com/njlawjournal/2021/05/06/vicarious-liability-do-you-really-need-an-affidavit-of-merit/.

Amanda Podlucky (Orlando, FL) authored the article “Incident Prevention and Response Hits Close to Home,” appearing in the May 19, 2021, issue of Multi-Housing News. Read the article here: https://www.multihousingnews.com/post/incident-prevention-and-response-hits-close-to-home/.

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) authored an article entitled “Strategy Is Key for Opening Statements and Closing Arguments,” which is featured in the NJSBA’s June 2021 edition of the New Jersey Lawyer Magazine. In this article, Jack and Jeremy address the importance of forming a sound litigation strategy in preparing opening statements and closing arguments and explain what can and cannot be said during openings and closings and discuss objections that could be made during the opening statements and closing arguments. Read this article at https://marshalldennehey.com/articles/strategy-key-opening-statements-and-closing-arguments.

Speaking Engagements

Mohamed Bakry (Philadelphia, PA), a member of the firm’s Diversity Committee, moderated a presentation at the 2021 DRI Diversity For Success seminar in New Orleans, Louisiana. In their session, “A Conversation About Racial Justice in America,” Mohamed and panelists explored the inequities related to racial justice and addressed ways to move the dialogue into action so that the cycle of injustice can be broken.

Butler Buchanan (Philadelphia, PA) joined a panel to discuss “Workplace Culture, Equity and Safety as Our Community Emerges From a Global Pandemic” at the Philadelphia Bar Association’s Virtual Spring Quarterly.

Peggy Bush (Orlando, FL), Leonard Leicht (Roseland, NJ) and Harold Moroknek (Westchester, NJ) presented the webinar “Rules of the Trucking Industry: Staying on Track!,” at the recent Transportation Lawyers Association (TLA) Annual Conference.

James Cole (Philadelphia, PA) participated in the Insurance Law Global and Lloyd’s Market Association Young Professionals Virtual Boot Camp. He co-presented “US/Canadian Litigation in a Post-COVID-19 World.”

Ashley Eldridge (Philadelphia, PA) was a speaker at the Dispute Resolution Institute’s Personal Injury Potpourri, presenting “COVID-19 and Workers’ Compensation.”

Michele Frisbie (King of Prussia, PA) presented “Personal Injury Exculpatory Clauses” on behalf of Stafford Publishing. This CLE webinar guided counsel in personal injury cases in interpreting, challenging or defending exculpatory clauses, the use of which invites a whole host of legal issues and public policy concerns. The program explored the difference between exculpation from liability arising out of a familiar activity with a well-defined set of risks with exculpation for injuries from novel and undefined risks. The program discussed how exculpatory clauses fare in real-world contexts—such as commercial leases, product liability, healthcare and sports.

Adam Fulginiti, Mary Kate McGrath (Philadelphia, PA) and Jeffrey Rapattoni (Mount Laurel, NJ) presented “Charting the Course of Telehealth in the Post-COVID Landscape” as part of the ASHRM Webinar Series. The session focused on the fundamental principles and best practices to help ensure that telemedicine systems work in tandem with AI-based insurance systems, comport with regulatory requirements and avoid the potential for malpractice.

Scott Gemberling (Philadelphia, PA) presented “Dram Shop, The Toxicology and the Law” on behalf of the National Academy of Continuing Legal Education.

Kevin Hexstall (Philadelphia, PA) was a featured speaker at the Perrin Conferences’ In-House Counsel Perspectives Symposium. Kevin’s session was titled, “Maintaining Relationships With Outside Counsel.”

Howard Mankoff (Roseland, NJ) was a featured speaker at the New Jersey State Bar Association Annual (virtual) Meeting. Howard participated on a panel that discussed “Successful Mediation of Employment Disputes: Common Pitfalls and Strategies to Dig Out!” The presentation focused on the widely differing mediation expectations and lack of preparation; particular challenges of multi-party cases; adversaries with at-odds negotiation styles; and how to get the most value from virtual mediations.

Michele Punturi (Philadelphia, PA) presented “Changing the Employee Safety and Wellness Mindset to Reduce Workers’ Compensation Costs and Avoid Liability” at CLM’s Workers’ Compensation and Retail, Restaurant & Hospitality Conference.

Eric Reichenberger (Fort Lauderdale, FL) was a co-presenter for “Not Fun & Games: Litigating Injury Claims Involving Minors” at the DRI Retail & Hospitality Virtual Seminar. Eric and panel discussed hospitality companies, and in particular theme park owners and operators, facing a disproportionate number of claims made on behalf of minors. Presenters also reviewed how in-house counsel and outside litigators can best adapt to defend those claims in court and in the public arena.

Our firm was well-represented at the latest Pennsylvania Defense Institute’s annual conference. Patrick Reilly (Pittsburgh, PA) co-presented “The New Marketing Tool—Creating a Podcast that People Want to Hear.” Robert Aldrich (Scranton, PA) participated in “Legal Marketing on LinkedIn—Learn How Law Firms are Leveraging LinkedIn’s Unique Data and Environment to Engage Clients and Prospects to Grow Their Business.” Finally, Charlene Seibert (Pittsburgh, PA) co-presented “Legal Malpractice Concerns in the New Remote World—Ethics Complaints, Legal Malpractice Actions, and Protecting Your Practice in the Post-COVID-19 –World.”

 

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.

Firm Highlights

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Thought Leadership

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

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

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.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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

News

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

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Thought Leadership

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

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

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

News

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

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

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.