Defense Digest, Vol. 28, No. 1, April 2022

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

*Results do not guarantee a similar result.

Kimberly Berman and Holly Hamilton (Fort Lauderdale, FL) convinced the Fifth District Court of Appeal to quash a non-final order granting the plaintiff in a personal injury lawsuit leave to amend the complaint to add a claim for punitive damages. They asserted that the trial court departed from the essential requirements of the law when it failed to make an affirmative finding at the hearing or in the written order as to the evidence that supported a reasonable basis to proceed with the amendment per section 768.72, Florida Statutes. The Fifth DCA agreed and granted the petition for writ of certiorari, quashed the order on review, and certified conflict with another district court decision addressing the same issue. Kovacs v. Williams, 331 So.3d 850 (Fla. 5th DCA Dec. 10, 2021). 

Kimberly also succeeded in obtaining an affirmance by the Fourth District Court of Appeal of a non-final order vacating a default final judgment entered against a condominium association at the outset of the COVID-19 pandemic. Slowey v. Beach Terrace Resort Condo. Ass’n, Inc., 328 So.3d 978 (Fla. 4th DCA Nov. 10, 2021). 

Finally, Kimberly obtained a dismissal by the Second District Court of Appeal of an appeal of a final administrative order concerning a homeowners association’s deed restriction revitalization efforts. During the pendency of the appeal, the association petitioned to the Department of Economic Opportunity for revitalization a second time, which the Department approved. The Second District then dismissed the appeal as moot. Kravitz v. Fla. Dep’t of Eco. Oppty. & Venetian Isles Homeowners Association, Inc., No. 2D20-3597 (Fla. 2d DCA Dec. 13, 2021).

Audrey Copeland (King of Prussia, PA) authored the brief for Amicus Curiae Coalition Against Insurance Fraud, in Keystone RX LLC, where the Pennsylvania Supreme Court determined that a a non-treating health care provider, like the pharmacy involved, is not entitled to notice or the opportunity to participate in a Utilization Review proceeding under the Pennsylvania Workers’ Compensation Act. The Supreme Court opined that a non-treating provider does not have a constitutionally-protected property interest in goods or services that it dispensed, absent which there is no viable due process claim. The Commonwealth Court’s attempt to engraft this requirement onto the Act was rejected, and the Supreme Court made clear that this type of change must be enacted by the Legislature, not the courts. Keystone RX LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office, 265 A.3d 322 (Pa. 2021).

Audrey successfully defended a claimant’s workers’ compensation appeal where the Commonwealth Court affirmed the grant of the employer’s termination petition and denial of the claimant’s review and penalty petitions. The court’s rulings included a determination that the employer’s expert’s testimony on cross-examination in response to a hypothetical question did not limit his opinion as to the claimant’s recovery to “a neurological standpoint” only, as his entire testimony supported the finding that the claimant fully recovered from her accepted work injuries and could return to work. Carpenter v. Family Dollar Stores of Pennsylvania, LLC (Workers’ Comp. Appeal Bd.), 2022 WL 128341 (Pa.Cmwlth. Jan. 14, 2022). 

Audrey also convinced the Commonwealth Court to hold that the plaintiff borough police chief was not eligible for Act 600 pension benefits, despite language in his employment contract, because the defendant Borough did not enact an Act 600 pension plan, disposing of this important issue in the case. Riley v. Borough, 263 A.3d 53 (Pa.Cmwlth. 2021). 


Defense Digest, Vol. 28, No. 1, April 2022 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. © 2022 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