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Defense Digest

On the Pulse…Our Scranton, Pennsylvania, Office

Defense Digest, Vol. 29, No. 2, June 2023

June 1, 2023

by John T. McGrath Jr.

The Scranton office of Marshall Dennehey is now in its 30th year. The firm began in Scranton with two attorneys practicing workers’ compensation law. Over the years, it has grown, and today, when it is at full capacity, there are 23 lawyers in the office. Attorneys presently working in the Scranton office, including myself, Ben Nicolosi, Leo Bohanski, Ross Carrozza, Pat Boland, and Robert Smith, have been with the firm over two decades. Many of those just mentioned have been here for over 25 years, and Ross has been here since the office opened. Over the last few years, several of our longest-tenured and esteemed attorneys have retired. Jim Pocius, John Aponick, Jim Wilson, Joe Vender, and Jennifer Callahan all retired, each having had between 20 and 30 years experience with the firm. Replacing that talent is almost impossible, but we have been very fortunate to bring on some young attorneys and lateral hires who have allowed our office to continue to flourish and grow. The experience and talent in our practice department is unmatched in Northeastern Pennsylvania. Those groups include workers’ compensation, casualty, professional liability, and health care.

The workers’ compensation group is led by Mike Sebastian. Mike has worked in the workers’ compensation realm for over 30 years and has a long and distinguished list of clients who rely on him for all their workers’ compensation matters. As he has for many years, Ross Carrozza also ably litigates workers’ compensation cases. In addition, Ross is a leading expert in Medicare Set-Asides. The 60 years of combined experience possessed by Mike and Ross in workers’ compensation is an asset to the Scranton office and allows us to handle the most involved and difficult workers’ compensation cases. 

The Casualty Department in the Scranton office presently has six attorneys: Ben Nicolosi, John Nealon, Leo Bohanski, Sarah Argo, Mike Connolly, and myself. Our experience in the casualty arena is envied by all of our competitors. Collectively, the department has tried over 200 cases to verdict in the counties in which we serve. Presently, I act as the firm’s Auto Liability Practice Group Chair. Ben Nicolosi handles high-profile trucking accident and product liability matters. Although many of the cases the department handles contain requests for punitive damages, no one in our department has ever been hit with a punitive damage award. Considering the volume of cases we handle and their serious nature, that is truly an accomplishment. There is not a casualty case or issue the Scranton office has not handled, and handled effectively. The Casualty Department litigates auto accidents, dram shop cases, product liability matters, construction defect cases, slip and falls, and any other type of casualty case that finds its way to our office. 

Our Professionally Liability Department, when fully staffed, is the largest department in our office. Presently, William McPartland, who is the Co-Chair of our Special Education Law Practice Group, works with several school districts throughout Northeastern Pennsylvania. Many of the school districts in Luzerne, Lackawanna, and the outlying counties rely on Will for all of their education law practice needs. He also handles employment law and civil rights cases. Mark Kozlowski and Patrick Boland have very similar practices, which include civil rights, municipal, and professional liability practice litigation. They represent attorneys, engineers, and architects, and do a significant amount of work with homeowners associations and any disputes arising therein. Their practice continues to grow. Presently, Jordan Mazzoni, an associate, works with both of them, assisting with their growing practice. 

Rob Smith is also in the Professional Lability Department, handling (almost exclusively) bad faith cases. Rob has a very large practice in this extremely specialized area, and several carriers look to him to handle their bad faith litigation. Underinsured motorist and uninsured motorist cases continue to be one of the biggest practice areas in the state for bad faith. Rob would certainly be considered an expert in that area. 

Finally, Tom Specht is a member of our Appellate Advocacy and Post-Trial Practice Group. He litigates appeals in state and federal courts, having done so for the past 25 years. He also handles serious and complex pre-trial matters/motions (of a dispositive nature) and assists trial counsel in their preparation for trial, as well as appellate trial monitoring and motion/strategic assistance at trial. Tom’s practice is extremely varied, in that he litigates cases from every practice area within the firm and has the ability and experience to assist at any stage of the litigation process. He is a helpful, valuable resource for all of the attorneys in the office. 

Our Professional Liability Department in the Scranton office is larger than those of all of our competitors in the area combined. This means that, if you were to put all of the professional liability attorneys in Northeastern Pennsylvania, other than those working for Marshall Dennehey, in one room, and the Marshall Dennehey attorneys in another, our department would outnumber the attorneys in the other room. Their expertise is unmatched. The variety of cases they handle is truly something to marvel at. 

Last, but not least, is our Health Care Department. It is composed of five attorneys presently and will be expanding shortly. Victoria Scanlon is the supervising attorney in the Health Care Liability Practice Group of the Scranton office. She is an experienced litigator with nearly 20 years of experience representing physicians, midwives, nurse practitioners, nurses, physical therapists, hospitals, ambulatory service centers, and more. She also works with long-term personal care facilities and providers. Vicky has tried many cases to verdict and is an outstanding trial attorney. 

Missy Dziak, a shareholder, as well, and has, for more than a decade, defended nurses, nurse practitioners, registered nurses, and really anyone in the health care field. She is licensed in both Pennsylvania and New York. Aside from medical malpractice, she also represents and advises one of the largest national independent food service distributors, providing strategic legal guidance in high-exposure litigation. Missy serves on Marshall Dennehey’s Diversity, Equality, and Inclusion Committee, which works to improve the recruitment, retention, and advancement of diverse attorneys and professionals. Missy is a member of the Pennsylvania Bar Association’s Commission on Women and Profession and the Promotion of Women. She also has tried several cases to verdict in both Pennsylvania and New York. 

Matt Keris is a shareholder in the Health Care Department who defends doctors as well as long-term care facilities. He is the Chair of the Electronic Medical Record and Audit Trail Practice Group. Matt tried the first case in Pennsylvania to verdict during the COVID-19 pandemic in July of 2020. Matt is the president of the DRI Foundation, which focuses on wellness and charitable interests affiliated with the Defense Research Institute. He is a former DRI board member and is currently on the steering committee for the Annual Insurance Roundtable. Matt was formerly president of the Pennsylvania Defense Institute and continues to serve as co-chair of the Medical Malpractice Liability Committee. Finally, he has twice-served as president of the Pennsylvania Association for Healthcare Risk Management and is an active member of the Claims and Litigation Alliance for American Legal Connections. Matt has tried many cases to verdict with over 20 years of experience in the field. 

Rob Aldrich has worked his entire career defending health care professionals and institutions against malpractice liability claims in Pennsylvania and New York. Rob specializes in defending dental malpractice and long-term care liability cases. Rob also has extensive experience defending trucking and transportation companies in auto liability cases. Finally, he serves as an at-large board member for the Pennsylvania Defense Institute. 

Patty Lafferty also has been a great addition to the healthcare department. Patty has 20 years of litigation experience, with approximately ten years focusing solely on the defense of health care providers. She represents physicians, nurses, advance practice providers, physician group hospitals, and skilled nursing facilities in medical malpractice cases throughout Northeastern Pennsylvania. Prior to joining us, Patty tried cases as a prosecutor in the Lackawanna County District Attorney’s Office. She tried multiple felony and misdemeanor cases. She was also an Assistant City Solicitor for the City of Scranton, working with the mayor, prior to joining Marshall Dennehey. Patty is an active member in the legal community, serving on the Board of Directors for the Lackawanna County Bar Association. 

As outlined above, the Health Care Department has tried dozens and dozens of cases to verdict. Their experience and knowledge makes them the leading medical malpractice department in Northeastern Pennsylvania. 

Scranton continues to be fortunate in that we have an experienced support staff that can be depended on to go well above and beyond their job classifications. We have several paralegals and administrative support staff who have been with us for 10-25 years. Their dedication to their jobs and the attorneys they work with is appreciated. Each and every one of them can be counted on to assist in any project or trial that may be on the horizon. They are willing and able to help when others are either out of the office or overworked. The teamwork and comradery amongst and between them is an asset to our firm. 

The team of professionals assembled in the Scranton office provides outstanding legal services to all of the clients. Presently, our footprint in Pennsylvania consists of Tioga, Bradford, Susquehanna, Wayne, Lycoming, Sullivan, Wyoming, Montour, Columbia, Lackawanna, Luzerne, Pike, Monroe, and Carbon counties, as well as the Middle and Eastern Districts of Pennsylvania, and the Third Circuit Court of Appeals. 

All of the attorneys mentioned above live and, for the most part, grew up in the Northeast Pennsylvania area. Our knowledge of the courts, judges, and the procedures followed in each of the counties and federal courts around us allows this office to represent our clients in a professional and efficient manner, which the courts truly appreciate. Our attorneys are on a first-name basis with many of the judges we litigate before and their support staff. This allows us to represent our clients in a way that is unrivaled in the area.

Also interesting is the differences in the counties in which we work. Most of the counties would be considered extremely conservative, but three of them are considered by our clients to be leaning liberal or extremely liberal. Having the knowledge to navigate these counties and courts goes a long way in providing the best advice and representation to our clients. 

Our office’s experience and ability to handle a wide variety of cases at any stage of the litigation process—investigation, pretrial, discovery, trial, arbitration, mediation, settlement, or appeal—allows our clients to rest easy, knowing that they are getting excellent representation no matter the type of case or its procedural posture. The amount of work we receive in Northeastern Pennsylvania from our clients is greatly appreciated, and I believe is attributable to the fine work done by each of our attorneys, paralegals, and administrative staff. We are simply the best law firm (not just defense) in Northeast Pennsylvania.

 

 

Defense Digest, Vol. 29, No. 2, June 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.

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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

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

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business meeting photo

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Thought Leadership

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Complete Victory Obtained in a Workers’ Compensation Matter

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Complete Victory Obtained in a Workers’ Compensation Matter

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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.