On the Pulse...Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories*

Trial counsel Tom DeLorenzo (Philadelphia, PA), Kim Woodie (King of Prussia, PA) and appellate counsel Audrey Copeland (King of Prussia, PA), along with their co-defendants, successfully convinced the Pennsylvania Supreme Court to reinstate a defense verdict on the severed claims of four test-case plaintiffs. The matter involved an underground gasoline leak that gave rise to personal injury and property damage claims by approximately 45 plaintiffs against multiple defendants. The trial court had issued a case management order—which severed the claims of four bellwether plaintiffs for determination through reverse bifurcation—in an effort to fairly and efficiently try the case, avoid the "insurmountable" prejudice to defendants from the testimony of "dozens" of plaintiffs on 41 separate claims, pare judicial expenses and foster an orderly presentation of evidence to the jury. The trial court also reasoned that trying damages first, as to these plaintiffs, would enhance the prospects of settlement. In fact, two of the eight defendants settled all claims as to all plaintiffs. The jury returned a defense verdict, finding that the gas had reached but not entered the homes of three of the plaintiffs and had not reached the home of the fourth plaintiff. The trial court denied the plaintiffs' motion for new trial, and the plaintiffs appealed. The Superior Court held that the trial court abused its discretion in severing the claims and remanded the case for a trial as to all 45 plaintiffs. The Supreme Court (with one Justice dissenting) agreed with the defendants that the Superior Court had impermissibly substituted its judgment for that of the trial court on a matter in which the trial court has discretion, failed to address the "extensive" reasons provided by the trial court in support of its severance order, and had cited no authority for its proposition that Rule 213 provides for a "weighing" of the factors. The Court issued an opinion and order reversing the Superior Court's order and reinstating the verdict for the defendants. Ball v. Bayard Pump & Tank Co., 2013 Pa. LEXIS 1039 (Pa. May 28, 2013).

In Vamsidhar Reddy Vurimindi v. City of Philadelphia, 2013 U.S. App. LEXIS 7054 (3d Cir. Pa. Apr. 8, 2013)(per curiam) the Third Circuit affirmed the Eastern District Court's order that had granted a motion to dismiss filed by trial counsel Joe Santarone (Philadelphia, PA). The case was defended on appeal by appellate counsel Audrey Copeland (King of Prussia, PA). Therein, the plaintiff-property owner brought suit against multiple parties, including the City of Philadelphia, alleging that the denial of his applications—one to purchase certain vacant properties and another for zoning licenses to alter properties that he owned—were violations of his rights to substantive and procedural due process and equal protection. The Third Circuit held that, because the plaintiff did not pursue his administrative and state court remedies, including appeals, he failed to state a procedural due process claim. The court further held that the plaintiff did not suggest that the post-deprivation remedies were inadequate. Because the plaintiff's complaints were typical of zoning and land use disputes and he did not allege any "conscience shocking conduct," his substantive due process claim also failed. The plaintiff also neglected to allege facts supporting a plausible conclusion that he was treated differently from other developers, which was necessary for an equal protection claim, and he did not identify any other such like persons. Finally, the court found no abuse of discretion in the dismissal of the complaint, with prejudice, agreeing with the District Court that amendment would be futile.

Kimberly Boyer-Cohen (Philadelphia, PA) obtained a reversal in Superior Court of a jury verdict. The plaintiff had brought the premises liability action against the defendant-store, claiming she sustained injury to her knees after she fell over a beanbag lying on the floor of an aisle in the store. Following a jury verdict and an award in favor of the plaintiff, Kim argued on appeal that the plaintiff failed to establish that the store had actual or constructive notice of the defective condition. In its decision, the Superior Court agreed, finding that the plaintiff did not establish how the beanbag got on the floor or how long it was there. As a result, the court vacated the jury verdict and remanded for entry of judgment n.o.v. in favor of the defendant. Davis v. Target Corporation, 2013 Pa. Super. LEXIS 1481 (Pa. Super. Mar. 27, 2013).

Kimberly Boyer-Cohen (Philadelphia, PA) obtained an affirmance from the Third Circuit of a defense verdict obtained by trial counsel Daniel Krebbs (Philadelphia, PA) in a premises liability action brought after a plastic container fell and struck the plaintiff on the head while she was shopping. The plaintiff contended that, at trial, the District Court improperly admitted evidence of a prior conviction, a violation of Federal Rule of Evidence 403. On appeal, the Third Circuit upheld the District Court's admission of the plaintiff's 2004 guilty plea for endangering the welfare of a child, finding that the incident was probative of her alleged cognitive impairment and future earning capacity as a pediatric nurse—two matters at the heart of the plaintiff's claim for damages. The Third Circuit also agreed that the probative value of the evidence was not substantially outweighed by any potential prejudice and concluded that the District Court did not abuse its discretion when it denied the plaintiff's motion for a new trial. Brown v. Moran Foods, Inc., 2013 U.S. App. LEXIS 2904 (3d Cir. 2013).

Ralph Bocchino and James Gicking (Philadelphia, PA) had their summary judgment upheld by the Superior Court of Pennsylvania. The plaintiffs appealed a granting of all the defendants' motions for summary judgment in a case involving a roofer who fell off a roof while doing work for the Quakertown School District. Our client was doing work on the roof as a subcontractor, performing chimney repairs. Despite a roofing permit and our client's presence, we were able to show that our client had nothing to do with the roofer's accident and his alleged catastrophic injuries. There is very good language in the opinion regarding independent contractors and no duty owed to their employees within the scope of their contracts.

Lauren Burnette (Harrisburg, PA) obtained a favorable opinion from the Fourth Circuit Court of Appeals, which dismissed the plaintiff's appeal for lack of jurisdiction. After the plaintiff filed an illegible handwritten complaint, we filed a Rule 12 Motion for More Definite Statement. The district court granted the motion and ordered the plaintiff to file a readable complaint within 20 days. Instead of filing a complaint, the plaintiff instead filed a series of "omnibus motions," each longer than the last and all equally illegible. The district court denied the plaintiff's motions and dismissed his claims without prejudice. The plaintiff appealed to the Fourth Circuit and, while his appeal was pending, continued to file numerous handwritten motions in the district court. The Fourth Circuit agreed with our argument that it lacked jurisdiction over the plaintiff's appeal because the district court's order dismissing his claims without prejudice was neither a final appealable order nor a collateral order.

Chuck Craven (Philadelphia, PA) and Christopher Boyle (King of Prussia, PA) obtained summary judgment, affirmed on appeal in the Commonwealth Court, for a police officer, his supervisor and their police department in a police pursuit that ended in a fatal crash. In his last argument before retirement, Chuck changed the law in Pennsylvania, as the court held for the first time, "There is no duty of care to passengers whose existence, or whose connection to the driver and the conduct for which he is being pursued, is unknown to the officer. Because there was no duty of care, summary judgment was appropriate as a matter of law." A tremendous win for law enforcement in Pennsylvania, and a great curtain call on a tremendous career for Chuck!

Defense Digest, Vol. 19, No. 3, September 2013

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 © 2013 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

*Prior Results Do Not Guarantee A Similar Outcome