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Defense Digest

On the Pulse…Our Pittsburgh, Pennsylvania, Office

Defense Digest, Vol. 29, No. 1, March 2023

March 1, 2023

Having nearly completed 30 years of continuous operation since opening in 1993, our Pittsburgh office has grown and matured to the point of augmenting Marshall Dennehey’s regional preeminence by staking its own claim as a leading defense firm in the southwestern part of Pennsylvania. Numbering 40 strong, our attorneys have successfully litigated just about every type of civil tort claim imaginable over a practice territory stretching from Waynesburg to Clearfield and from New Castle to Bedford—and sometimes, by client request, beyond our assigned 16-county geographical range. Several of our attorneys practice regularly in the state of West Virginia and some are called upon to defend class action and MDL cases filed in several other states as well. We look early and often for opportunities to resolve cases to our clients’ satisfaction, but we never hesitate to litigate cases to judgment if that is required. Six attorneys of the Pittsburgh office have been inducted into the prestigious Academy of Trial Lawyers of Allegheny County, an invitation-only organization recognizing the 250 best trial lawyers out of the more than 10,000 lawyers in Allegheny County.

Pittsburgh’s Casualty Department handles all varieties of third-party civil actions involving personal injury or property damage, from the smallest matters to catastrophic injuries and wrongful death cases. Our casualty attorneys regularly defend premises liability, automobile liability, product liability, liquor liability, intentional torts, construction, trucking and transportation, and asbestos and toxic torts cases. This group is comprised of nine shareholders, eight associates, and one of-counsel, making it the largest practice department in our office. It is managed by Stuart Sostmann, who is also the president of the Pennsylvania Defense Institute, one of the largest civil defense organizations in Pennsylvania with almost 500 members, including defense attorneys, insurance professionals, and corporate counsel.

Our Health Care Department, supervised by Anthony Williott, consists of three shareholders, one senior counsel, and two associates. Pittsburgh’s health care team has a tradition of excellence in defending physicians, hospitals, dentists, nurses, nursing homes, chiropractors, and other health care professionals and facilities in malpractice suits. These attorneys collectively have tried more than 200 jury and binding arbitration cases to verdict, with a success rate of over 90%. In addition to defending health care professionals in malpractice litigation, our attorneys also counsel clients in matters of statutory and regulatory compliance, and they represent health care professionals in licensing matters.

While serving as the office managing attorney, I am also proud to supervise the attorneys of Pittsburgh’s Professional Liability Department. Currently numbering eight shareholders and four associates, the PL group offers deep experience in an astonishing array of challenging law types. These case types include legal malpractice; errors and omissions claims against architects, engineers, accountants, insurance or real estate agents; directors and officers claims for non-profit corporations and condominium and homeowners associations; employment practices liability; defense of counties, public school districts, and local governments, their officials and police officers in state tort claims and federal civil rights actions; and direct representation of insurance professionals and insurance carriers regarding coverage or extra-contractual liability exposure. Each one unique, these cases come in all shapes and sizes, involving pre-suit counseling and litigation before local magistrates, the county trial courts, and the United States District Courts.

Our Workers’ Compensation Department in Pittsburgh features two shareholders and an associate, all dedicated exclusively to this field of practice. They represent employers, insurers, and third party administrators in the defense of workers’ compensation claims, fee reviews, subrogation matters, risk management, and return-to-work programs. Each representation is designed to mitigate exposure on the part of our clients. Supervised by Daniel Deitrick, this department has represented a wide range of insureds and self-insureds, including hospitals, health care entities, nursing homes, school districts, vehicle manufacturers, trucking companies, food distributors, hotels, restaurants, construction companies, and grocery and retail stores, among others. Our risk management strategies are thoughtfully intended to reduce costs through involvement in the pre-litigation phase. In those claims that are litigated, however, our attorneys are actively striving to protect the interests of our clients, from the commencement of litigation through the appellate process.

All of our attorneys stand in admiration of an amazingly loyal, hard-working, and efficient staff of administrative assistants and paralegals under the supervision of our regional office manager, Rose Chulack. Many of our staff members have been with us for decades, while others more youthful bring energy and innovation to the team. All of these ladies and gentlemen distinguish themselves every day by their care for the quality of our work product and for the welfare and convenience of our clients. Without them, we could not hope to deliver the brand of client service in which we always aspire to excel.     

As I write this from our offices on the seventh floor of the beautiful and historic Union Trust Building, looking across Grant Street at the Allegheny County Courthouse constructed in the 1880s, it is mid-January, and we are enduring the depths of Pittsburgh’s gloom season. We have had about three days of sunshine since Thanksgiving. But we take heart! For at least eight months out of the year, this is a truly beautiful place to be, and we love that our community is ever interesting, safe, and welcoming. Those of us working here at Marshall Dennehey are either natives of the area or transplanted “lifers,” who would not prefer to work anywhere else. Even in the age of Zoom mediations and remote court appearances, we hope you might find a reason to visit our city sometime soon. And if you do, please call on us for a tour of the office and an introduction to some of the charms of Pittsburgh.

 

Defense Digest, Vol. 29, No. 1, March 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

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. 

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.

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.

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

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

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case