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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 27, No. 1, January 2021

January 29, 2021

RECOGNITION

J. Bruce McKissock (Philadelphia, PA) was recognized at the Philadelphia Bar Association’s Summer Quarterly Meeting for his 50 years of membership in the PBA. ​Bruce and the other “50-Year Club” members were honored during the virtual event.

Recent Drexel University Thomas R. Kline School of Law graduate, Bridget Mead (Philadelphia, PA), received the Eve Biskind Klothen Law Student Pro Bono Distinction Award from the Philadelphia Bar Association. ​The award is given for outstanding pro bono work during a student’s time in law school. Bridget was selected for her commitment to helping the vulnerable in our community, including her work with the Homeless Advocacy Project where, over the last two years, she assisted both the Veterans and Disability Benefits Departments in providing legal services to help combat homelessness. Bridget looks forward to joining her Marshall Dennehey colleagues in providing pro bono legal services to the Christian Legal Clinics of Philadelphia when she begins her practice with the firm.

 

APPOINTMENTS

Nicole Ehrhart (Harrisburg, PA) was recently elected to serve on the Board of Directors for the Professional Liability Defense Federation.

John Hare (Philadelphia, PA) has been appointed by the Pennsylvania Supreme Court to a seven-member commission that will develop an event to celebrate the Court’s upcoming 300th anniversary.

 

SPEAKING ENGAGEMENTS

Michael Bradford (Tampa, FL) presented at the annual conference of the American Board of Vocational Experts on best practices for testifying experts in litigation.

John Hare (Philadelphia, PA) spoke at a seminar on the Pennsylvania Constitution entitled, Judicial Engagement and the Pennsylvania Constitution. ​The seminar was presented by the Institute for Justice, a libertarian think tank focusing on civil liberties and public interest law.

Mary Kate McGrath and Adam Fulginiti (Philadelphia, PA) were presenters at the virtual Pennsylvania Association for Healthcare Risk Management 2020 Annual Fall Conference. ​Their presentation, “Telehealth Update Information and Best Practices to Protect Patients and Clinicians,” included discussion of the expansion of telehealth in response to COVID-19; medical licensure general requirements/guidance and COVID-19-related waivers; federal and state waivers; practice expansions during COVID-19; litigation and liability issues including immunity, best practices, documentation, venue and statutes, verdicts/outcomes, and insurance; and telehealth and patient privacy.

Jeremy Zacharias (Mount Laurel, NJ) participated in a Professionalism Panel hosted by the Rutgers School of Law in Camden, New Jersey. Jeremy has been a repeat panelist for the past three years at Rutgers School of Law for the first-year law students. This seminar focused on the Rules of Professional Conduct and the applicability of the RPC’s in private practice. Jeremy was accompanied on this panel by Judge Joel Rosen and various practitioners within New Jersey.

Several attorneys returned as faculty for the 2020 Virtual CLM Claims College. ​Andrew Davitt (Philadelphia, PA) served as faculty for the School of Professional Lines. Michael Packer (Fort Lauderdale, FL), Jennie Philip and James Cole (Philadelphia, PA) were instructors for the School of Property Claims. Christopher Block (Roseland, NJ) served as faculty for the School of Casualty Claims. The Claims College is an educational experience designed to help educate and grow industry claims professionals. Each school within the college is comprised of three levels, and participants who successfully complete all levels in a particular school receive a CLM designation reflecting their education and commitment to the profession.

Lary Zucker (Mount Laurel, NJ) and Alicia Caridi (Tampa, FL) participated in a recorded webinar to be presented at the 2020 Virtual Trade Show and Conference presented by Roller Skating Association International. ​Lary and Alicia discussed identifying and mitigating risk management issues presented by the pandemic. The webinar was organized by The International Amusement and Leisure Defense Association, Inc. (IALDA). Both Lary and Alicia are on the IALDA Board of Directors.

Lary Zucker also recorded a webinar for the World Waterpark Association virtual 2020 educational conference. Lary’s presentation covered new developments in digital patron screening and lessons learned from operating during the pandemic summer of 2020.

 

PUBLISHED ARTICLES

The article, “Can Employers Require Employees to Get a Vaccine, Once Approved?,“ by Ronda O’Donnell (Philadelphia, PA), Michelle Michael (Roseland, NJ) and Mari Gangadean (Mount Laurel, N) was published in the October 27, 2020 edition of The Legal Intelligencer, Employment Law Supplement.

Karen Grethlein’s (Philadelphia, PA) article, “OSHA Guidance for Keeping Construction Workers Safe During the Pandemic,“ was recently published in The Legal Intelligencer Construction Law Supplement.

Brandon Jordan’s (Philadelphia, PA) article, “#BlackLivesMatter & #SayHerName,“ was published in Spring 2020 edition of Houston’s Legacy, the Pennsylvania Bar Association Minority Committee newsletter.

Matthew Keris and Robert Aldrich (Scranton, PA) authored the article, “A Civil Jury Trial During the Pandemic: Observations From Those Who Know,“ that appeared in The Legal Intelligencer. Matthew’s article, “Artificial Intelligence in Medicine Creates Real Risk Management and Litigation Issues,“ was published in the September 17, 2020 issue of Journal of Healthcare Risk Management.

Michele Punturi (Philadelphia, PA) authored the article, “Reflections on a Pandemic,“ for the Philadelphia Bar Reporter and the article, “Keep Your Eyes on the Road – Distracted Driving and Workers’ Compensation Claims,“ for The Legal Intelligencer.

Daily Business Review published Irene Thaler’s (Fort Lauderdale, FL) article, “Recent 11th Circuit Case May Impact COVID-19 Litigation,“ in its September 21, 2020 edition.

Lara Bream’s (Harrisburg, PA) article, “Does Our New Normal Include Courts and Judges Requiring Face Masks in Courtrooms?,“ was published in PAMIC Pulse’s Fall 2020 edition.

“Conflicting Opinions on Personal Injury Jurisdiction Over Foreign Corporations Linger,” by Melanie Foreman (Philadelphia, PA) was published in the November 3, 2020 edition of The Legal Intelligencer.

“‘Pin-Pon’ Case Highlights Attacking a Civil Remedy Notice in Bad Faith Litigation,” by Markenson Pierre (Fort Lauderdale, FL), was published in November 17, 2020, edition of Daily Business Review.

Courtney Schulnick’s (Philadelphia, PA) article, “Let Go and Free Yourself,“ appeared in the September 2020 issue of Philadelphia Bar Reporter.

 

MEDIA COMMENTARY

Chanel Mosley (Orlando, FL) was extensively quoted in the Healthcare Risk Management magazine article, “Expert Tips for Handling Malpractice Claims.” ​Click here to read.

On September 21, 2020, Jeremy Zacharias (Mount Laurel, NJ) was featured in an interview with Professional Liability Underwriting Society on the PLUS Blog. In this interview, Jeremy discussed his experience with the PLUS Leadership and Mentoring Program and its impact on his career within the legal industry. Jeremy’s interview can be found here.

 

Defense Digest, Vol. 27, No. 1, January 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

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. 

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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

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

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.

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case