On the Pulse…Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories*
Carol Vanderwoude and John Hare (Philadelphia, PA) succeeded in obtaining an affirmance by the Pennsylvania Supreme Court of a judgment as matter of law for Marshall Dennehey’s clients, a Pennsylvania police department and its officers. Voting 6-0, the Supreme Court held that police do not owe a statutory or a common law duty to unknown passengers in fleeing vehicles. This ruling rejected the claim of an estate whose decedent had died when the modified Mustang in which he was riding attempted to flee a traffic stop. The Pennsylvania Fraternal Order of Police, The Pennsylvania Chiefs of Police Association, the County Commissioners Association of Pennsylvania, the Pennsylvania Municipal League and the Pennsylvania Association of Boroughs joined as amici curiae to support our clients’ position in the Supreme Court. Sellers v. Township of Abington, et al, 2014 Pa. Lexis 3463 (Pa. Dec. 29, 2014).
Carol and John also succeeded in convincing the Pennsylvania Superior Court, sitting en banc, to reverse a $14.5 million verdict in a product liability case on two bases and remand for a new trial on liability and damages. In its 6-3 decision, the Superior Court awarded a new trial on liability because the testimony of the plaintiff’s expert was invalid under Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923), as applied by the Pennsylvania Supreme Court in Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012). The Superior Court further held that a new trial on damages was required because, in his closing argument, the plaintiff’s lead counsel improperly suggested specific dollar amounts for the award of noneconomic damages, a violation of Pennsylvania law. Nelson v. Allied Signal, et al., 2014 Pa.Super. LEXIS 4571 (Pa. Super. Dec. 23, 2014).
Carol also succeeded in obtaining an affirmance by the Pennsylvania Superior Court of a judgment as a matter of law in an asbestos action for several of Marshall Dennehey’s clients. In its unanimous ruling, the Superior Court held that the evidence offered by the estate of the decedent to defeat summary judgment was insufficient to raise genuine issues of material fact concerning the decedent’s frequent, regular and proximate exposure to asbestos in products manufactured by the defendants, including deposition and interrogatory excerpts from unrelated cases and an affidavit of the decedent’s former co-worker. Krauss v. Trane US Inc., et al, 2014 Pa. Super. LEXIS 3938 (Pa. Super. Oct. 22, 2014).
As a result of her work in Stiegel v. Peters Twp., 2014 U.S. App. LEXIS 23116 (3d. Cir. Dec. 9, 2014), Carol succeeded in obtaining an affirmance by the Third Circuit Court of Appeals of a judgment as matter of law in a civil rights action for Marshall Dennehey’s clients, a township and one of its police officers. In its unanimous ruling, the Third Circuit held that the officer’s display of his service weapon was justified and did not constitute excessive force. Because the officer inflicted no constitutional harm, the claim against the township was also dismissed.
Audrey Copeland (King of Prussia, PA) persuaded the Pennsylvania Superior Court to affirm the judgment entered on a defense verdict in a bad faith case. The court determined that the trial court understood the claim, applied the law of the case from the prior appeals, and its alleged evidentiary errors were either not prejudicial or had been waived by the plaintiff. Rhodes v. USAA Casualty Insurance Co., 1431 WDA 2014 (Pa. Super. Dec. 16, 2014).
Audrey also successfully obtained the Third Circuit’s affirmance of the District Court’s order granting summary judgment in Herman v. Harman, 583 Fed. Appx. 33 (3d. Cir. 2014), on the basis that the plaintiffs/government contractors for Pennsylvania’s Underground Storage Tank Indemnification Fund did not engage in constitutionally protected public speech when they funded and prosecuted an appeal for their private clients against the Fund for a million dollar (and previously settled) gasoline leak claim. The Tank Fund also had ample justification for treating the appellants differently than members of the public “by hewing to a strong conflict of interest policy.”
In the recently reported decision Burkey v. CCX, Inc., 2014 Pa. LEXIS 4543 (Pa. Super. 2014), Audrey convinced the Pennsylvania Superior Court to quash the plaintiff’s appeal from the order granting summary judgment to the defendant. The court held that the appeal was untimely because the 30-day period to appeal began to run from the entry of the parties’ Stipulation to Dismiss the last remaining defendant, which finalized the summary judgment order for appeal, and not the plaintiff’s subsequent Order to Settle, Discontinue and End.
Audrey also obtained the Commonwealth Court’s affirmance of an order denying a workers’ compensation claim petition in Simpson v. WCAB (Community Interactions, Inc.), 2014 Pa. Commw. Unpub. LEXIS 656 Commw. Ct. Nov. 16, 2014). The claimant contended that she sustained work injuries when she was assaulted by her client while both were in a car parked near the client’s apartment. The court rejected the claimant’s arguments, which it characterized as a request that the court impermissibly re-assess the Workers’ Compensation Judge’s findings as to the credibility and weight of the evidence.
Audrey Copeland (King of Prussia, PA) successfully defended the summary judgment obtained by trial counsel Ben Nicolosi (Scranton, PA) in Truax v. Roulhac, No. 1797 EDA 2013 (Pa. Super. Sept. 24, 2014). The plaintiff alleged that she was injured while walking on a sidewalk to enter the defendants’ tavern when a vehicle driven by another defendant, Roulhac, pulled “head-on” into a parking space, jumped the five-inch concrete wheel stop separating the parking spaces from the sidewalk, and struck her. The plaintiff primarily argued that she was a business invitee and was owed a duty of reasonable care to protect her from the foreseeable harm caused by a third party. Through her expert’s report, she contended that the defendants were required to provide a sidewalk with a five-inch curb and bollards (poles or pillars of concrete or metal) to protect pedestrians from vehicle infringement. The defendants argued that all local zoning and building code requirements were met; that no similar accident had ever occurred and was, therefore, unforeseeable; and that their use of wheel stops was sufficient to protect pedestrians under the known circumstances. The court affirmed in a 2-1 decision, holding that summary judgment was appropriate because the plaintiff provided no legal precedent requiring the use of bollards. The court held that, even accepting her expert’s opinion as true, the report failed to relate the appropriate engineering standards for the design of a parking lot and use of wheel stops and was inadequate as a matter of law to demonstrate that the defendants were negligent for using wheel stops.
Walt Kawalec (Cherry Hill, NJ) successfully defended the summary judgment obtained by Julie Dorfman and Matt Schorr (Roseland, NJ) in Alvarado v. Blair House. On appeal to the New Jersey Superior Court, the case involved claims by the plaintiff that two individuals abducted her from property owned and maintained by our clients, The Blair House Condominium Association and Impac Property Management. The incident started when the assailants deceived the plaintiff into allegedly giving them a ride to a bus stop. However, the plaintiff was subsequently carjacked, bound, assaulted and left for dead in a river. She was discovered alive by a passing motorist who called the police. Her two assailants were subsequently arrested and convicted. The plaintiff sued our clients and Premier Security Services for physical injuries and emotional distress stemming from the incident. In granting summary judgment, the court found that the plaintiff’s decision to voluntarily invite the assailants into her vehicle was an intervening cause that broke the chain of causation between the defendant’s negligence, if any, and the assault. Further, the defense argued that the plaintiff was a licensee on the property and that a very limited duty was owed to her by the landowner, which was to warn of known hazards, and that the criminal intent of two individuals on the property could not be considered a known hazard. Lastly, the plaintiff failed to prove that the criminal assault and carjacking, which occurred off Blair House property, was foreseeable based upon any established history of prior criminal activity at the property. Although courts have held that a property owner may be responsible for criminal acts by third parties on an abutting property, there was no duty owed here as the criminal assault that took place off of the property was not foreseeable. In upholding the summary judgment, Walt successfully argued, and the New Jersey Superior Court agreed, that there was no evidence that our clients breached the duty of care.
*Prior results do not guarantee a similar outcome
Defense Digest, Vol. 21, No. 1, March 2015
Defense Digest 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. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.