Defense Digest, Vol. 28, No. 3, October 2022

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

Kimberly Berman (Fort Lauderdale, FL) succeeded in obtaining an affirmance by the First District Court of Appeal of a termination of parental rights judgment. This judgment was entered against a father who refused to acknowledge he was the father. Instead, he wanted to wait five years until he was released from prison to establish paternity and have a relationship with the child. Kimberly served as pro bono counsel for the statewide Guardian ad Litem program to represent the interests of the child as part of the Defending Best Interests Project. In affirming the order below, Judge Tanenbaum gave an in-depth analysis for the least restrictive means prong in TPR cases. P.B., Natural Father of J.C.T., Minor Child v. Fla. Dep’t of Children & Families & Guardian ad Litem for J.C.T., 335 So.3d 804 (Fla. 1st DCA Mar. 29, 2022).

Kimberly Berman (Fort Lauderdale, FL) and Amanda Podlucky (Orlando, FL) succeeded in obtaining an affirmance by the Fifth District Court of Appeal of a final summary judgment in a premises liability action. This case arose from a slip and fall in the bathroom of a renter’s own residential unit. The trial court ruled that there were no genuine issues of material fact as to actual or constructive notice concerning the transitory foreign substance found, or negligent maintenance of the bathroom. The Fifth District agreed and affirmed. Foreman v. Grep Southeast, LLC & Sabal Club Holdings, LLC, LLC , No. 5D21-1724 (Fla. 5th DCA Mar. 22, 2022).

Kimberly Berman, Patrick DeLong and Holly Hamilton (Fort Lauderdale, FL) succeeded in obtaining an affirmance by the Third District Court of Appeal of a non-final order dissolving a temporary injunction initially entered against a multi-condominium association following the erroneous entry of a temporary injunction. Three unit owners contended the Association improperly passed a special assessment to be used toward reconstruction of one of the buildings following a fire. The unit owners obtained a preliminary injunction invalidating the special assessment, halting construction, and mandating the Association convene a membership meeting and community-wide vote. The Association swiftly moved to dissolve the injunction, which the trial court granted, recognizing that it committed clear legal error and a misapprehension of the facts when it entered the injunction. In affirming the order below, Judge Miller commended the trial judge for acknowledging its error and found there was a sufficient basis in law and fact for the dissolution and that allowing the injunction to stand would have been incompatible with equity principles. The court also granted the Association entitlement to a conditional award of appellate attorney’s fees should it prevail below. Lecorps v. Star Lakes Association, Inc., 2022 WL 16534285 (Fla. 3d DCA May 25, 2022).

Audrey Copeland (King of Prussia, PA) obtained the Commonwealth Court’s affirmances of decisions favorable to the employer in three Pennsylvania workers’ compensation cases. In Hinchey v. Mercy Catholic Medical Center (WCAB), No. 47 C.D. 2021 (Pa.Cmwlth. Apr. 28, 2022), the court affirmed denial of a reinstatement petition and found no error in the judge’s alleged failure to issue findings of fact on incompetent medical evidence, and as to the claimant’s testimony, which was thus irrelevant. In Jaskulski v. Weis Markets, Inc. (WCAB), 2022 WL 1099606 (Pa. Cmwlth. Apr. 13, 2022), the court affirmed a modification of the claimant’s benefits status based on an IRE of below 35% impairment. The court also found that Act 111 can be constitutionally applied to work injuries occurring before its effective date and that Act 111 contains sufficient language for retroactive application. Finally, in Daquilante v. Mercy Catholic Medical Center (WCAB), No. 630 C.D. 2021 (Pa. Cmwlth. Jul. 18, 2022), the court affirmed denial of a claim petition, for scarring of the legs, and declined to find that Section 306(c)(22) of the Workers’ Compensation Act, 77 P.S. § 523 (22) limiting compensation for scarring to the head, neck or face, violates the Remedies Clause of the Pennsylvania Constitution or Equal Protection provisions of the Pennsylvania and U.S. Constitutions.

Audrey Copeland also convinced the Commonwealth Court to affirm the trial court’s order sustaining a municipality’s preliminary objections and dismissing a retired police officer’s and union’s complaint for lack of subject matter jurisdiction due their failure to exhaust administrative remedies under the Collective Bargaining Agreement (CBA). The dispute was over health benefits (a monthly allowance) and a retroactive pay increase. The court held that, notwithstanding the fact that the plaintiff had retired, the exclusive remedy was the grievance procedure in the CBA.

Sara Mazzola (Roseland, NJ) and Walter Kawalec (Mount Laurel, NJ) received an affirmance from the New Jersey Appellate Division of the trial court’s grant of summary judgment to a national concert promoter. The original claim alleged a wet and muddy lawn at an outdoor theatre constituted a dangerous condition. The appellate division agreed with the trial judge and rejected the plaintiff’s claim that the promoter had a duty to warn the plaintiff that the lawn and dirt could become slippery when wet.

Edwin Schwartz (Harrisburg, PA) and Kimberly Boyer-Cohen (Philadelphia, PA) obtained the dismissal of a legal malpractice action against our client arising from its representation of the plaintiff in a lease agreement dispute. After the deadlines passed for completion of discovery and production of the plaintiff’s expert report, the trial court granted summary judgment in favor of our client on the basis that the plaintiff’s claim for professional negligence failed as a matter of law because the plaintiff failed to produce an expert report to support its allegations of professional negligence. On appeal, the Pennsylvania Superior Court affirmed the dismissal and rejected the plaintiff’s argument that it had been improperly sanctioned for a discovery violation. In support of its affirmance, the Superior Court found that summary judgment was properly granted because the plaintiff had been given ample time in which to satisfy its evidentiary burden of producing an expert report, but failed to act with due diligence and could not substantiate each element of its claim without an expert report. True Railroad Realty v. McNees Wallace and Nurick, LLC, 275 A.3d 490 (Pa. Super. 2022).

*Results do not guarantee a similar result.


Defense Digest, Vol. 28, No. 3, October 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