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 unanimously affirm the dismissal of the plaintiffs' complaint on preliminary objections in Baker v. Pocono Mountain Chamber of Commerce (No. 1636 EDA 2008, April 29, 2009). The complaint filed by the husband and wife plaintiffs ("Appellants") asserted claims based on promissory estoppel. In addition to substantive issues regarding promissory estoppel, the defendant's preliminary objections challenged the propriety of the verification that had been submitted with the plaintiff's complaint. As the Superior Court's opinion described the case, "Appellants had a meeting with a business development specialist employed by Appellee for advice about constructing a business development plan for a trucking business. Appellants allege that they relied upon the specialist's guarantee that they could obtain a $25,000 loan to start their business if they purchased a tractor trailer truck. However, after purchasing the tractor trailer truck, Appellants were denied the $25,000 start-up loan by a bank. As a result of their reliance on Appellee's guarantee, Appellants contend that they suffered significant negative consequences. Specifically, Appellants had the tractor trailer repossessed, their bank account was depleted, they accumulated $75,000 in debt for living expenses, their personal car was repossessed, they were forced to sell land in Pike County, Appellant Husband was forced to take a job making substantially less than expected, and Appellants suffered other physical injuries and distress as a result of these financial problems." In affirming the grant of the preliminary objections and the dismissal of the plaintiffs' complaint on the substantive issues raised by the promissory estoppel claims, the Superior Court accepted the arguments advanced by Chuck's brief and held that the plaintiffs' reliance was unreasonable and that the alleged promise could not be enforced. In addition, on the procedural aspects raised by the improper verification filed with the plaintiffs' complaint, the Superior Court accepted the points raised by Chuck's brief and affirmed the trial court's dismissal of the complaint because the plaintiffs failed to provide a proper verification for their complaint despite several opportunities to do so.

Kim Boyer-Cohen (Philadelphia, PA) and Audrey Copeland (King of Prussia, PA), who wrote the Brief of Appellant and argued the appeal, respectively, convinced the Superior Court to reverse the decision of the trial court and to order that judgment be entered in favor of our client. The plaintiff filed suit against our client after her decedent was killed in a motor vehicle accident and the parties agreed to binding arbitration. After the arbitrator found the plaintiff to be 60% negligent and our client to be 40% negligent, the plaintiff argued that the parties had agreed to principles of "comparative fault," which did not include a bar on recovery if the plaintiff was more than 50% negligent. The trial court agreed and entered judgment against our client. On appeal, the Superior Court found that principles of "comparative fault" and "comparative negligence" were one and the same and held that, because the plaintiff was found to be more than 50% negligent, the plaintiff was barred from any recovery. Rekun v. Pelaez, 2321 EDA 2008 (Pa. Super. 2009).

John Hare (Philadelphia, PA) succeeded in having the Superior Court affirm the entry of summary judgment in favor of his client, a day care center, in a case where the plaintiff claimed that the center was negligent in failing to maintain a drain on which the plaintiff allegedly fell. The Superior Court reversed the summary judgment awarded to a codefendant and remanded for trial against that codefendant. Stevenson v. Little Miracles Day Care et al., 1823 EDA 2008 (Pa. Super., July 9, 2009).

John Hare (Philadelphia, PA) succeeded in having the Superior Court uphold a jury verdict for our client, a law firm that sued its former client for unpaid fees and defended against a claim of legal malpractice. At trial, the former client sought to introduce evidence that the firm had a routine practice of requiring other clients to sign judgment notes to secure payment of legal fees. The trial court excluded evidence of the alleged practice on the basis that it improperly sought to impugn the character of the firm's attorneys. While the Superior Court disagreed with the trial court's rationale, and held that the practice may have been admissible as evidence of habit, it nonetheless upheld the verdict because evidence regarding what the firm did with other clients was irrelevant to the question of whether the firm committed legal malpractice in handling the client's case. Hoffmeyer & Semmelman v. Filipiak, 1519 MDA 2008 (Pa. Super., July 21, 2009).

Walter Kawalec (Cherry Hill, NJ) succeeded in having the Third Circuit Court of Appeals uphold the dismissal on summary judgment of a police officer and municipality of a lawsuit stemming from a fatal shooting. In the case, the deceased was a mentally disturbed young man who left a mental health facility at night and committed a home invasion nearby. While in the home, he armed himself with a kitchen knife, attacked two people, and attempted to slit his own wrists. After leaving the home, he was confronted in the dark yard of the home by members of the police, who were called to the scene by the homeowner. After the deceased was surrounded and refused repeated demands to disarm, he charged at one of the officers, who had fallen on a tree stump and was in a seated position in the yard. Two of the officers on the scene fired, hitting the decedent, who died of his wounds. The court found that the grant of summary judgment was proper as there was no basis for finding a violation of the decedent's constitutional rights and, therefore, qualified immunity applied. Manigault v. King, 2009 U.S. App. LEXIS 15482 (3d Cir. July 13, 2009).

Audrey Copeland (King of Prussia, PA) obtained an affirmance of the trial court's denial of the plaintiff's motion for a new trial. The Superior Court found that there was no error in charging the jury on both the sudden emergency and assured clear distance ahead rule where the plaintiff's car was struck from behind by the defendant's vehicle after the plaintiff had slowed down or stopped to avoid hitting a dog in her lane of traffic on Interstate 84. The testimony of a nonparty witness as to a phantom vehicle which obscured the defendant driver's view of the plaintiff's car was dispositive. Pressano v. Buchanan, (Superior Court, No. 1543 EDA 2008, April 8, 2009).

Audrey Copeland (King of Prussia, PA) also obtained affirmances of the Workers' Compensation Appeal Board's determinations in various Commonwealth Court appeals. Reichard v. W.C.A.B. (Parkland School District), No. 2151 C.D. 2008, March 27, 2009 (the claimant was a nine-month, unsalaried school employee never hired to work for that period, thus, not entitled to compensation payments over school vacation months); Murray v. W.C.A.B. (Main Line Open M.R.I), No. 1983 C.D., 2008, June 18, 2009 (court held that the claimant waived issues not raised with specificity in an appeal to the Board and found that the Workers' Compensation Judge's findings with regard to the nature and duration of the claimant's work-related injury and relevance to medical treatment were supported by substantial evidence); D'Alesandro v. W.C.A.B.(The Boring Company), No. 87 C.D. 2009, July 1, 2009 (Commonwealth Court affirmed determination that the claimant failed to prove fatal claim petition alleging that her husband suffered a fatal heart attack while in the course and scope of his duties for the employer, Boeing; the claimant failed to meet burden of proof with testimony that the decedent feared flying, police report that the decedent was found dead on hotel room floor with belongings packed and suitcase weighing 55 pounds sitting by hotel room door, and, expert opinion that stress of preparation for departure combined with physical exertion of packing and lifting belongings precipitated myocardial infarction); Pavlick v. W.C.A.B.(Interface, Inc.), No. 1782, July 9, 2009 (employment offer in Pennsylvania was made in good faith even though the claimant had relocated to Florida; substantial evidence supported the Judge's finding that the claimant's relocation was not in "good faith" where documentary evidence and the Judge's credibility findings discredited the claimant's allegations that the employer's alleged failure to pay benefits in a timely fashion forced him to move to Florida); Griffin v. W.C.A.B. (Belmont Court Dialysis), No. 240 C.D. 2009, July 13, 2009 (Judge's decision to terminate based upon recovery from two separate work injuries and denial of reinstatement were both supported by substantial competent evidence).

Defense Digest, Vol. 15, No. 3, September 2009