Defense Digest, Vol. 25, No. 3, September 2019

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

Thomas Specht of our Scranton, Pennsylvania office obtained Superior Court affirmance of a trail court order that had granted judgment on the pleadings to our clients—a real estate company, the principal of the real estate company and a real estate agent of the company—in Heller v. Century 21 Smith Hourigan Group, et al., 2019 Pa. Super. Unpub. LEXIS 2591 (Pa.Super. July 3, 2019). The court concluded that the trail court had correctly determined that the pleadings evidenced that the plaintiff’s lawsuit was time-barred by the statute of limitations. The pleadings showed that the plaintiff possessed sufficient critical facts to put him on notice, more than two years before he filed suit (dating back to the time of the purchase of his property), that his property had been contaminated by others and that he needed to investigate further to determine whether he was entitled to redress. Additionally, the Superior Court found that the plaintiff’s improper response to the defendants’ affirmative defense based on the statute of limitations, which he had denied as a conclusion of law, was inadequate and, in effect, had admitted that this suit was time-barred.

Walter Kawalec (Mt. Laurel, NJ) obtained a unanimous decision in the New Jersey Supreme Court, reversing an order for a new trial. ​In this medical malpractice action, the defendant was a physician who allegedly committed malpractice when he prescribed a drug known as Pegasys to the plaintiff. According to the plaintiff’s experts, she was not an appropriate candidate for the drug. The matter was tried by another law firm before a jury, which reached a defense verdict. However, on appeal, the Appellate Division reversed and remanded for a new trial on the grounds that the defendant’s change of testimony at trial, from what it had been in his deposition, prejudiced the plaintiff. The matter was then transferred to our firm for further appeal before the New Jersey Supreme Court. The Supreme Court unanimously agreed with Walt’s argument that the precedent which the Appellate Division had relied upon in ordering the new trial was distinguishable. Further, the fact that plaintiff’s counsel failed to object to the changed testimony at trial was likely strategic and, therefore, did not prejudice the plaintiff sufficiently to compel the reversal. The court reversed and reinstated the jury verdict.

*Prior Results Do Not Guarantee A Similar Outcome



Defense Digest, Vol. 25, No. 3, September 2019. 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. © 2019 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