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

Chuck Craven (Philadelphia, PA) succeeded in persuading the Pennsylvania Superior Court to affirm the dismissal of a tax dissenter's lawsuit against a bank. In response to a levy imposed by the federal Internal Revenue Service on the plaintiff's bank accounts for unpaid income taxes, the bank paid the tax lien from the accounts, and the plaintiff sued the bank to recover the payment, additional damages, attorney's fees and costs. In a long and convoluted argument, the plaintiff contended that the bank had no authority under the state banking law to honor and pay the levy. However, following the lead of several courts in other states, the trial court held that the bank was obliged to make the payment and was immune from discharging that obligation under the federal Internal Revenue Code, 26 U.S.C. § 6332(e). The Superior Court agreed and affirmed the trial court's dismissal of the plaintiff's lawsuit. McGeady v. QNB, No. 1616 EDA 2009 (3/29/09).

Thomas DeLorenzo and Ronda O'Donnell (Philadelphia, PA) successfully obtained the Third Circuit's affirmance of the District Court's order granting summary judgment in a putative medical monitoring class action arising out of a neighborhood exposure to beryllium dust and fumes from the defendants' plant for multiple decades. The defendants argued, and the Third Circuit agreed, that the plaintiffs were unable to satisfy the requirements of a medical monitoring case set forth in Redland Soccer Club, Inc. v. Dep't of the Army, 696 A.2d 137 (Pa. 1997) in that, based upon the factual record and expert opinions, the plaintiffs were unable to establish that they were at a significant risk of developing disease because of the alleged exposure. The Third Circuit held that in looking to Pohl v. NGK Metals Corp., 936 A.2d 43 (Pa. Super. 2007), alloc. denied, 952 A.2d 678 (Pa. 2008), the District Court correctly predicted how the Pennsylvania Supreme Court would rule. Sheridan v. NGK Metals, 2010 U.S. App. LEXIS 11485 (3d. Cir., June 7, 2010).

Chuck Craven (Philadelphia, PA), in a case defended in the trial court by Ed Schwartz (Harrisburg, PA), succeeded in persuading the Superior Court of Pennsylvania to affirm the forum non conveniens dismissal of the case on the basis that it should have been commenced in Maryland rather than in Pennsylvania. The case involved claims for compensatory, consumer fraud and bad faith damages under an insurance policy that covered a building that was damaged by fire. The plaintiffs, residents of New Jersey who had a business office in New York, owned the building, which was located in Maryland and housed a restaurant. The plaintiffs used a Maryland insurance agent to obtain coverage for the building, including the restaurant. The agent engaged the Maryland office of a multi-state broker, which obtained coverage from a Pennsylvania insurer. The insurance policy conditioned its fire insurance coverage on the presence of fire protective safeguards, but the plaintiffs claimed they never received a copy of the policy with that provision. An investigation after the fire revealed that the required safeguards had not been installed. Coverage was denied, and the plaintiffs sued the insurer in Pennsylvania. The insurer in turn joined the agent and moved for dismissal of the case on forum non conveniens grounds. Although the plaintiffs insisted that their choice of forum could not be easily trumped, and that the main thrust of their case was the bad faith claim against the Pennsylvania insurer, the defendants demonstrated that the case had significant public and private contacts with Maryland that trumped the plaintiffs choice of Pennsylvania as their forum, and that plaintiffs could recommence their case in Maryland. Based on those factors, the trial court dismissed the case without prejudice to plaintiffs' bring it in Maryland, and the Superior Court affirmed that decision. Lewittmann v. Mt. Vernon Fire Ins. Co., 2165 EDA 2008 (Pa. Super., June 15, 2010).

Audrey Copeland (King of Prussia, PA) persuaded the Third Circuit to affirm the District Court's denial of post trial motions in an FMLA discrimination case tried by Teresa Sirianni (Pittsburgh, PA) to a defense verdict. The plaintiff, a city employee, was terminated after proceeding through the city's progressive discipline system based upon his excessive unexcused absences (primarily on Fridays) and by reasons of his violation of multiple city policies regarding "calling in" such absences and reporting work injuries. While the plaintiff made numerous disparate medical excuses at various meetings relating to his misconduct (one of which the jury found to be "serious"), he never notified the city that he suffered from a serious health condition for which he needed leave. One of the final episodes involved the plaintiff's questionable claim that while performing his job inspecting contractors' work, he suffered a first-time fainting episode, yet did not report this when he called in to work for his next assignment for the day. Rather, despite having fainted, he drove his personal (rather than city) vehicle to his home on the way to his next assignment, whereupon he allegedly fainted a second time at home and was discovered unconscious hours later by a friend whom the plaintiff had pre-arranged to meet at his house during his working hours. The plaintiff then demanded admission to the hospital the next day, where he was diagnosed only with "fainting," neglected to follow up with any tests, and did not ask for leave at his next due process hearing several days later. The court held that the District Court erred in disallowing a claim for interference based upon the recent Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009)(allowing both theories when a discharge in violation of the FMLA is alleged) and in reversing its own prior ruling on partial summary judgment that plaintiff proved notice. However, such error was not reversible. The court reasoned that the plaintiff failed to demonstrate that he was prejudiced as a result of the ruling requiring submission of the notice issue to the jury and that the evidence was adequate to support the jury's conclusion that the plaintiff's notice was not sufficient under the FMLA. Hayduk v. City of Johnstown, 2010 U.S. App. LEXIS 13630 (3d Cir., July 2, 2010).

Chuck Craven (Philadelphia, PA) succeeded in persuading the Superior Court of Pennsylvania to affirm the summary judgment that Paul Lees (Bethlehem, PA) won from the Northampton County Court of Common Pleas in a legal malpractice case. Although the plaintiff's attorney filed a certificate of merit, he never provided an expert's report on liability, despite numerous requests for the report, orders and directives from the trial court, and promises from plaintiff's counsel himself over several years. Because the case had not moved forward and was stalled by the tactics of the plaintiff's attorney, Paul filed a motion for summary judgment, detailing the pertinent history of the case and asserting that the defendant was entitled to summary judgment because the plaintiff could not prove her case on the existing record. The plaintiff's response yet again promised the production of an expert, but that promise was not realized even by the time that the trial court held oral argument and took the matter under advisement. The trial court granted the defendant's motion, and the plaintiff moved for reconsideration, submitting an expert report with the motion, ironically authored by the lawyer who provided the review for the certificate of merit years earlier. The trial court denied reconsideration, and the plaintiff appealed. On appeal, the Superior Court affirmed the grant of summary judgment in an opinion that castigated the plaintiff's appellate brief and argument. Noting that the plaintiff's "prolix" statement of the issue on appeal "violated the Rules of Appellate Procedure" and was "fraught with mischaracterizations of the record, including the representations that the trial court issued only an 'oral admonition' and that appellant had 'fully complied with the only order against her," the Superior Court pointed out that, "[I]n fact, the record before the trial court was replete with plaintiff's counsel's abuse of the indulgences bestowed upon him by both the trial court and defense counsel, both of whom were forced to suffer the consequences of counsel's dilatory behavior." Anderson v. Ceraul, 2180 EDA 2008 (Pa. Super., July 2, 2010).

Audrey Copeland (King of Prussia, PA) successfully defended the claimant's appeal of the Workers' Compensation Appeal Board's decision obtained by Jennifer Callahan (Scranton, PA) in the Commonwealth Court of Pennsylvania. The court agreed that the Workers' Compensation Judge on remand had correctly granted benefits for a closed period and had properly denied unreasonable contest attorney's fees because the employer had genuinely disputed the issue of the claimant's disability throughout the proceedings. The court agreed that ongoing benefits during the pendency of the proceedings had been properly denied, reasoning that neither the Workers' Compensation Judge nor the Appeal Board ever found that the claimant suffered any disability beyond the closed period and that, as of that date, the claimant was fully recovered from her work-related injury. Atwell v. W.C.A.B. (Lake Lehman School District), 1813 C.D. 2009 (Pa. Cmwlth. April 21, 2010).

Stephen Poljak (Fort Lauderdale, FL) and Audrey Copeland (King of Prussia, PA) succeeded in obtaining the Superior Court's affirmance of the dismissal of an action brought by a disgruntled purchaser against an absentee seller and a realtor based upon a real estate transaction. The court affirmed the trial court's order sustaining the defendants' preliminary objections on the negligence and negligent misrepresentation claims on the basis of both the economic loss and gist of the action doctrines where the plaintiff failed to address the former in his appeal. The court also affirmed the trial court's grant of summary judgment on the fraudulent misrepresentation claim, finding that the plaintiff could not establish that the defendants knowingly made misrepresentations so as to conceal or deceive him as to the condition of the sewage system on the property. McDonald v. Household Finance Consumer Discount Co., 331 WDA 2009 (Pa. Super, April 22, 2010).

Defense Digest, Vol. 16, No. 3, September 2010