On the Pulse…Marshall Dennehey Is Happy to Celebrate Our Recent Appellate Victories*

Defense Digest, Vol. 23, No. 4, December 2017

Shane Haselbarth (Philadelphia, PA) obtained a unanimous, precedential decision in the Third Circuit reversing a federal district court’s denial of qualified immunity for our police officer clients. The plaintiff was a passenger in a car struck by a bullet fired by one of several officers who engaged the vehicle as it sped into a populated area on the main drag through Pittsburgh’s south side. The officers, working secondary duty as security guards at bars, opened fire after the vehicle ran a red light, led cruisers on a five-mile chase, failed to obey orders to stop, swerved in-and-out of the right lane, and crashed off cars parked along the street. The Third Circuit agreed with Shane that, in light of the threat posed by the vehicle, the officers’ conduct in shooting was objectively reasonable under the Fourth Amendment. The court reversed the denial of qualified immunity and remanded with instructions to enter summary judgment in the officers’ favor. Davenport v. Borough of Homestead, 870 F.3d 273 (3d Cir. 2017).

Audrey Copeland (King of Prussia, PA) convinced the Commonwealth Court to affirm the Workers’ Compensation Judge’s and the Workers’ Compensation Appeal Board’s decisions denying the claimant’s, a residential construction carpenter, claim petition. The judge’s decision that the claimant was not injured while working on the subject date conformed to Section 422(a)’s “reasoned decision” requirement. The claimant did not prove that he was employed by the subcontractor or anyone else anyone working at the site at that time, he admitted he was never hired by the contractor or our firm’s client, Toll Brothers, and he never identified a Toll Brothers employer who supervised his work. Because the judge found that the claimant was not working for the subcontractor at the time, he did not have to consider whether the claimant was an employee or independent contractor, or whether the contractor or Toll Brothers were a statutory employer under Section 203 of the Act, 77 P.S. §52. Lopez v. Workers Comp. Appeal Bd. (Martinez), 2017 Pa. Commw. Unpub. LEXIS 500 (Pa.Cmwth. Jul. 12, 2017).

In another workers’ compensation appeal, Audrey persuaded the Commonwealth Court to affirm the Workers’ Compensation Appeal Board’s decision affirming the Workers’ Compensation Judge’s denial of the claim. The claimant, who previously strained his low back in 2011 while harvesting mushrooms, did not sustain a new injury or material aggravation of a pre-existing condition of his lumbar spine because of his work duties. Of note was the claimant’s lack of testimony as to any specific event at work. In addition, his physician’s notes did not reflect complaints of increased symptoms or aggravation of pain. The judge credited the employer’s medical expert, who testified that the claimant did not sustain an aggravation, over the testimony of the claimant and his physician. A prior decision, finding an exacerbation of the pre-existing condition, also found that the claimant had fully recovered from his 2011 back strain and that the judge’s decision was reasoned. Oseguera v. Workers’ Comp. Appeal Bd. (F&P Holding Company), 2017 Pa. Commw. Unpub. LEXIS 658 (Pa.Cmwlth., Aug. 11, 2017).

Thomas Specht (Scranton, PA) won a significant victory in the United States Court of Appeals for the Third Circuit. In a precedential decision issued by the court in Mann v. Palmerton Area School District, 871 F.3d 165 (3d Cir. 2017), the Third Circuit affirmed the grant of summary judgment in favor of a school district and its football coach by the United States District Court for the Middle District of Pennsylvania in a case (that had been ably defended at the district court level by Robin B. Snyder, Esquire (Scranton, PA)) involving significant injuries alleged to have been suffered by a student football player as a result of alleged concussion-causing hits during football practice. The appellate court affirmed the rejection of the plaintiffs’ Section 1983 claim for alleged violation of the student’s constitutional right to bodily integrity under a state-created danger theory of liability that had been levied against the coach, holding that the coach was entitled to qualified immunity. The court noted that the right to be free from deliberate exposure to a traumatic brain injury after exhibiting signs of a concussion in the context of a violent contact sport had not been clearly established in 2011. The court firmly rebuffed the invitation by the plaintiffs’ appellate counsel to define the right at issue in a more general sense. In also affirming summary judgment for the school district on the plaintiffs’ Munell claim, the court agreed with the defense that there had been no pattern of recurring head injuries in the district football program and no evidence that any member of the coaching staff had deliberately exposed injured players to the continuing risk of harm that playing football poses. It also found it significant, in disagreeing that the district had inadequate training programs on concussion recognition and protection, that the Pennsylvania General Assembly had not passed legislation that mandated training for coaches to prevent concussions until November 9, 2011 (the alleged injuries to the student allegedly occurred on November 1, 2011), and that the legislation had not gone into effect until July of 2012. See, Safety in Youth Sports Act, 24 P.S. §§ 5321-5323. Thus, the court found that there was no basis for concluding that a policy or custom of the school district or its alleged failure to provide more intense concussion training to its coaches had caused a violation of the student’s constitutional rights.

*Prior Results Do Not Guarantee A Similar Outcome


Defense Digest, Vol. 23, No. 4, December 2017. 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.