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Defense Digest

On the Pulse…Our King of Prussia Office

Defense Digest, Vol. 27, No. 3, June 2021

June 1, 2021

 

 

King of Prussia, Pennsylvania, is where General George Washington and his troops spent the winter of 1777-1778 at Valley Forge during the Revolutionary War. The area was a strategic location for his army in our country’s fight to self-govern. Today, King of Prussia is still a strategic location due to its proximity to Center City Philadelphia and its surrounding counties, to major highways such as the Pennsylvania Turnpike, U.S. 202 and U.S. 422, and the planned expansion of Philadelphia’s regional rail system to the area.

Marshall Dennehey’s King of Prussia office was founded in February 2005 and today is the firm’s 3rd largest office of 20. As managing attorney of this office, I am lucky to be part of a fabulous group of attorneys, paralegals and administrative staff who are committed to representing our clients with skill and fidelity. Our office’s greatest asset is its talented, dedicated and hardworking people.

Before the King of Prussia office opened, Marshall Dennehey had offices in Delaware and Montgomery Counties. With the growth of technology and the evolution of our legal practices, we no longer needed an office near each courthouse throughout Philadelphia’s surrounding counties. Instead, a larger regional office allows us to collaborate and share resources to achieve one goal: providing the best legal services in the region. For this same reason, in May 2021, the attorneys and staff working in our Doylestown (Bucks County) office joined us in King of Prussia.

The lawyers in our King of Prussia office provide a complete range of legal services and handle cases in the counties of Philadelphia, Montgomery, Delaware, Chester, Berks, Lancaster, Bucks, Lehigh and Northampton. Our attorneys are experienced in all litigation forums—jury trials, bench trials, arbitrations and all types of alternative dispute resolutions. We roundtable cases and stay current on emerging trends.

Our office has a large casualty practice, led by supervisor Ed McGinn. He and Dave White, Mark Riley, John Riddell, Ed Tuite, Doug Kent, Tim Hartigan, Adam Sorce, Mike Detweiler, Michele Krengel, Jim Hilly, Lisa Goldman and Mike Miller handle general liability matters, including premises liability, product liability and automobile liability. Our newest office members from Doylestown include Tony Michetti, who co-chairs the firm’s Hospitality and Liquor Liability Practice Group; J. Bruce McKissock, longtime chair of the firm’s Aviation and Complex Litigation Practice Group; and Michele Frisbie, who defends personal injury litigation, premises liability, dog bite litigation, automobile accidents and more.

King of Prussia also has a large health care practice and is home to the Health Care Department’s director, Kevin FitzPatrick, and assistant director, Robin Snyder. Other members include Dan Sherry, vice-chair of the office’s Health Care Liability Practice Group and well known for his selection to the "Top 100 Attorneys in Pennsylvania" and the "Top 100 Attorneys in Philadelphia" Super Lawyer lists for 15 consecutive years. Steve Ryan, chair of the Birth and Catastrophic Injury Litigation and Medical Device and Pharmaceutical Liability Practice Groups, is highly accomplished in these areas and was initiated as a Fellow of the College of Physicians of Philadelphia in 2019. Additional members of the health care group include Chan Hosmer, chair of the office’s Physician Liability Group; Jackie Reynolds, who is also president of the Montgomery Bar Association; Joan Ford; Donna Modestine; Carolyn DiGiovanni; Jonathan Weiss; David Krolikowski; Joe Hoynoski; Gabor Ovari; and me. We handle matters representing hospitals, physicians, nurses, pharmacists, physical therapists, long term care facilities, skilled nursing homes and other health care professionals.

Our Professional Liability Practice Group includes highly-accomplished appellate attorney, Audrey Copeland, who has over 30 years of experience in appellate law; Maureen Fitzgerald, who handles employment, education and accounting malpractice matters; Greg Kelley and Candace Hardy, who concentrate their practice on architects and engineers; and Christin Kolcher, who handles bad faith, coverage and UM/UIM matters.

Our Workers’ Compensation Practice Group is staffed by Frank Wickersham, who is not only an excellent lawyer but is also the lead singer in the firm’s band, “Class Action and the Marshall Dennehey Horns.” Mike Duffy also practices workers’ compensation law in our office.

King of Prussia is fortunate to have an excellent administrative staff and a top-notch management team that includes office manager, Sandy Caiazzo, who is also the firm’s assistant director of Administration and president of the Independence Chapter of the Association of Legal Administrators, and assistant office manager, Michele Kissling. Together, they efficiently manage the workflow and everything else that comes up in our active practice. Rosemary Kilpatrick, our accounts receivable manager, and her team also work here and are a great asset to our office.

We invite you to browse the firm’s website to learn more about our office and its lawyers. We welcome any questions you may have about our civil defense litigation practice and how we may assist you with your litigation needs.

 

Defense Digest, Vol. 27, No. 3, June 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. 

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

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

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.

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

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.

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.

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

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