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Defense Digest

On the Pulse…Our Philadelphia, Pennsylvania, Office

Defense Digest, Vol. 28, No. 12, December 2022

December 1, 2022

by Butler Buchanan, III

As the managing attorney of the Philadelphia office of Marshall Dennehey, I am happy to have this opportunity to tell you about our corporate headquarters office.

Housing the largest contingent of lawyers in the firm, the attorneys in our Philadelphia office protect the interests of our clients in all four of the firm’s departments—Casualty, Professional Liability, Health Care Liability and Workers’ Compensation. The three members of our firm’s Executive Committee—G. Mark Thompson (CEO and President), Howard P. Dwoskin (Chairman of the Board of Directors and Treasurer) and Craig S. Hudson (Senior Vice President and Assistant Treasurer)—maintain offices in Philadelphia.

In addition to our attorneys, many of the backroom operations of the firm are handled by personnel in the Philadelphia office, and all non-lawyer administrative directors are based here including Colleen Bannon, our Chief Operating Officer. Colleen has a storied history with the firm (more than 40 years!), and before her promotion to COO, she was a practicing shareholder and also held the positions of Director of Human Resources and Director of Litigation Support. With oversight for our 19 offices across seven states, she is in frequent consultation with members of the Executive Committee and all of our office managing attorneys.

Frank Stransky, Chief Financial Officer, is housed in Philadelphia, along with Pattie Day, Director of Billing and Accounting. Between the two of them, all issues concerning billing, accounting and finance are managed firmwide.

Nané Pr’Out, Director of Information Technology, is also housed in the Philadelphia office. Nané manages a team of over 40 IT professionals who provide support for all operations of the firm. From time to time, some attorneys questioned whether we needed such a large IT department. When COVID–19 hit in March of 2020, thanks to the IT Department, we were able to have over 1,100 employees connected and working from home in less than one week. After that, those same attorneys were saying, “I am so happy that we have such a big IT Department.” Our IT team is first rate and does all that it can do to facilitate the practice of law at Marshall Dennehey.

Karen Williams is Marshall Dennehey’s Director of Human Resources. She and her team provide all manner of support in reference to a myriad of human resources issues, in addition to managing the firm’s comprehensive benefit program. They also facilitate our annual United Way giving campaign.

Joseph Goldshear and Jennifer Becker currently serve as Co-Directors of Marketing & Business Development at the firm. Joe has been in that role for 14 years and will be stepping down at year-end 2022, when Jennifer will take over the role in full. We are fortunate that Joe will remain with the firm as a Senior Advisor, to provide assistance to Jennifer as she progresses through her first full year as director. Backed by a creative and impressive group of marketing and public relations professionals, the marketing team works hard to promote the good works of our individual attorneys and the firm as a whole.

Lisa Ricchezza is our Director of Paralegal Services with oversight for our approximately 130 paralegals spread throughout our 19 offices. Lisa travels to the various offices and provides training, direction, assistance and guidance to our paralegal team. Our paralegals are an integral part of Marshall Dennehey and provide first-rate, cost-effective representation on behalf of our clients.

Christopher Hansen is the firm’s Director of E-Discovery and Litigation Support. In the cyber world, the management of documents in a litigation setting can be a massive undertaking. Getting these documents into a format in which they can be reviewed, and also arranging for relevant documents to be presented at trial, is often beyond the technical capabilities of our lawyers. Fortunately, Chris and his team provide ample guidance in that regard.

Lawrence Schempp is our Director of Professional Development. Larry arranges a number of associate training events across the firm each year that provide advice and direction on how to succeed in protecting our clients’ interests. Larry also orchestrates an in-house mock trial academy each summer where eight senior associates are selected to try a case in the mock trial courtroom of our Philadelphia office. Our summer law clerks serve as the jury, and seasoned trial lawyers at the firm serve as faculty. Participants are critiqued in the areas of opening statements, direct and cross-examination, and closing arguments. While the participants find the trial to be somewhat nerve-racking, they always express gratitude for the learning process and experience. Lastly, Larry oversees the provision of CLE credits in each of the seven states where the firm maintains offices. The content of the CLEs is wholly relevant to civil defense litigation practitioners.

Sandy Caiazzo is Marshall Dennehey’s Director of Administrative Services. Sandy manages all administrative assistants in the firm as well as their supervisors and managers. She also serves as the firm’s Lateral Integration Coordinator. Like COO Colleen Bannon, and many other employees of the firm, Sandy has never worked any place other than Marshall Dennehey. She joined the firm out of high school and has been with us for over 40 years.

Jay Rothman is General Counsel to the firm and is assisted in that role by Shane Haselbarth. Both Jay and Shane have only worked at Marshall Dennehey. Prior to being named General Counsel, Jay had a robust practice in the Professional Liability Department. Shane is an accomplished member of our firm’s Appellate Advocacy Practice Group and maintains that work while assisting Jay on the many issues that confront the firm. We are lucky to have two such astute lawyers to protect the firm.

Now that I have highlighted several firm leaders housed in the Philadelphia office, I want to highlight a few Philadelphia office attorneys.

John Hare is a member of the firm’s Board of Directors and Chair of our Appellate Advocacy and Post-Trial Practice Group. John has litigated more than 500 appeals in the state and federal appellate courts and is a Fellow of the American Academy of Appellate Lawyers. John formerly served as Chair of the Pennsylvania Supreme Court’s Civil Procedural Rules Committee. He has edited and co-authored two books on Pennsylvania appellate courts. The Supreme Court of Pennsylvania, Life and Law in the Commonwealth, 1684-2017 was published by the Pennsylvania State University Press in 2018, and Keystone of Justice: The Pennsylvania Superior Court, 1895-1995 was published by the Commonwealth of Pennsylvania in 2000.

Mohamed Bakry is a young shareholder at Marshall Dennehey. An active member of the volunteer community, Mohamed serves as Chair of the Board of Justice for Our Neighbors of the Delaware Valley, an immigration legal service nonprofit organization. He is also the Second Vice President of Board of Directors of The Lawyers’ Club of Philadelphia, a social and educational organization working to promote comradery among members of the bench and the bar in the Philadelphia area. Mohamed is passionate about, and dedicated to, the principles of diversity and inclusion, and he currently serves on Marshall Dennehey’s Diversity, Equity & Inclusion Committee. He is also a member of the Federation of Defense & Corporate Counsel, an association of vetted and premier defense and corporate counsel and industry executives dedicated to leading the profession by advancing the principles of integrity, professionalism and civil justice.

Melanie Foreman, associate in the Casualty Department, is heavily involved in the Philadelphia legal community. She is a board member of Community Legal Services of Philadelphia (CLS) and co-chairs its Leadership Council and Board Development Committee. Melanie is the founder and Chair of Justice Rising, a young professionals’ organization associated with CLS that is dedicated to access to justice for all. She is also a member of the Board of Governors of the Philadelphia Bar Association and sits on the association’s Large Firm Associates Committee. Finally, Melanie was recently invited to join the Board of Trustees of the Philadelphia Bar Foundation, which is the charitable arm of the Philadelphia Bar Association.

We are proud of John, Mohamed and Melanie, and the many other attorneys in our Philadelphia office and elsewhere who are doing incredible things that are law-related, but also outside of the practice of law at the firm.

Lastly, the Philadelphia office, and our neighboring offices throughout the region, reached a significant milestone in 2022. For the 10th consecutive year, Marshall Dennehey was selected one of the Philadelphia region’s “Best Places to Work” by the Philadelphia Business Journal. The award recognizes the firm’s achievements in creating a positive work environment that attracts and retains employees through a combination of benefits, working conditions and company culture. We are proud of this recognition, as expressed by our President & CEO, G. Mark Thompson: “Ten years is a long time to be recognized for anything and the fact that our employees remain engaged and happy makes us think we must be doing something right. A lot has happened in the past decade, but through it all we have emerged stronger together. I could not be prouder of our firm and all of our employees, and we will continue to do whatever we can to continue to improve our working environment so that all of our employees have the opportunity to succeed.”

I hope that this overview provides you with some idea of the scope of the operation in the Philadelphia office that I am so privileged to participate in managing. I also hope that each of you reading this has a wonderful and peaceful Holiday Season and I wish you a happy and healthy 2023.

*Buck is the managing attorney of our Philadelphia, Pennsylvania, office. He can be reached at 215.575.2661 and BBBuchanan@mdwcg.com.

 

Defense Digest, Vol. 28, No. 12, December 2022, is prepared by Marshall Dennehey 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. © 2022 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.