Defense Digest, Vol. 27, No. 2, March 2021

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

Kimberly Boyer-Cohen (Philadelphia, PA) obtained a victory before the Pennsylvania Supreme Court. Edwin Schwartz (Harrisburg, PA) initially obtained a grant of summary judgment in the trial court in favor of the defendants on the basis that the plaintiff’s legal malpractice claims were barred by the applicable statutes of limitations and that the discovery rule and fraudulent concealment doctrine did not apply. On appeal, the plaintiff requested adoption of the continuous representation rule to permit statutes of limitations for causes of action sounding in legal malpractice to be tolled until the attorney’s ongoing representation is complete. Kim convinced the Pennsylvania Supreme Court to reject adoption of the continuous representation rule, making clear that attorneys will not be subjected to a more stringent statute of limitations than other professionals. Clark v. Stover, 242 A.3d 1253 (Pa. 2020).

Kimberly Berman (Fort Lauderdale, FL) succeeded in obtaining an affirmance by the First District Court of Appeal of a defense verdict obtained for an owner of a commercial retail center and parking lot, in a negligent security action. A chef was taking garbage outside a restaurant when he was shot and killed. The Estate sued the owner of the building and the parking lot, as well as the defendants involved in the development, design and maintenance of the retail center. The jury returned a defense verdict in favor of all defendants. The Estate appealed, arguing that the trial court had abused its discretion in excluding subsequent evidence of remedial measures—installation of lighting, signs and cameras in the parking lot after the shooting. The First District rejected the Estate’s argument and affirmed the final judgments in favor of the defendants. Rowe v. Rowin, 306 So.3d 955 (Fla. 1st DCA Nov. 25, 2020).

Audrey Copeland (King of Prussia, PA) convinced the Pennsylvania Superior Court to affirm the trial court’s entry of summary judgment on behalf of the firm’s clients, the defendant rental agents, in a case where the plaintiff (then a minor) tripped and fell down a stairway in a rented residence where she lived with her family. The court found as to the separate defendant landlords (and generally) that, while the plaintiff claimed she fell because the first three stairs lacked a railing, she was aware of this condition and had been taught by her mother how to safely negotiate the steps. The court further found that the plaintiff did not support her allegations against the defendant rental agents with any relevant authority or develop any meaningful argument against them, as the appellate rules require. Therefore, the plaintiff failed to establish that these defendants owed her a duty. Sprouse v. Keller, et al., 2020 WL 7706808 (Pa. Super. Dec. 29, 2020).

Walter Klekotka and Walter Kawalec (Mount Laurel, NJ) were successful in defending a grant of summary judgment in the New Jersey Appellate Division. ​Our clients were the owner and manager of an apartment complex for seniors. The plaintiff was a resident who was returning from walking her dog and was entering the elevator. After the dog had already entered the elevator, the doors began to close. The plaintiff alleged injuries that occurred when the right door struck her arm and when she pushed the left door with her arm and the left side of her body enough to slow the doors closing and leap into the elevator. She sued our clients and the company hired to maintain the elevator but was unable to establish any proof of negligence. Her case was dismissed as the trial judge declined to apply the doctrine of res ipsa loquitur, in part, because she could not establish the third element of the doctrine that the injury did not result from the plaintiff’s own voluntary act or neglect. On appeal, the plaintiff argued that the Appellate Division should eliminate this third element. The Appellate Division, in a published decision, concluded that the third element is well-established law in New Jersey and only the Supreme Court could eliminate it, but it has shown no inclination to do so.

George Helfrich (Roseland, NJ) and Walter Kawalec (Mount Laurel, NJ) successfully persuaded the New Jersey Appellate Division to reverse a coverage determination. The original determination had found that the plaintiff was entitled to $500,000 in coverage under her then-boyfriend’s insurance policy, rather than being limited to the $100,000 in her own policy. The New Jersey Law Division rejected our arguments that the policy did not deem the plaintiff a “covered person” because she was the named insured in her own policy, and rejected the argument that the step-down provision applied. On appeal, the Appellate Division did not agree with us that the Law Division erred in its determination that the plaintiff was a “covered person,” but it did agreed that the step-down provision applied to limit the plaintiff’s recovery to that of her own policy. Cross petitions for review were filed with the New Jersey Supreme Court, which declined to alter the Appellate Division’s decision, resulting in significant savings on the claim for our client.

*Results do not guarantee a similar result.


Defense Digest, Vol. 27, No. 2, March 2021 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. © 2021 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