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

Carol VanderWoude (Philadelphia, PA) and Shane Haselbarth (Philadelphia, PA) succeeded in obtaining an affirmance by the Court of Appeals for the Third Circuit of a judgment as a matter of law for Marshall Dennehey’s client, an insurance company. The plaintiff, carrying UM coverage on top of applicable policy limits of $100,000, sued and settled with the other driver for $41,715, the number recommended by an arbitrator. The plaintiff then proceeded against her UM carrier, asserting that her actual damages exceeded the coverage threshold, despite the settlement. The Third Circuit rejected that contention and affirmed the District Court’s holding that the evidence did not support her entitlement to UM benefits—that her damages went beyond the level of applicable third-party coverage. The case drew amicus support from the Pennsylvania Association for Justice in support of the plaintiff and against Marshall Dennehey’s client. Gallagher v. Ohio Casualty Insurance Company, 2015 U.S. App. LEXIS 1426 (3d Cir. Jan. 29, 2015).

Carol also succeeded in obtaining several affirmances by the Pennsylvania Superior Court. In Kindermann v. Cunningham, 2015 Pa. Super. LEXIS 44 (Pa.Super. Feb. 11, 2015), the court affirmed a compromise verdict for Marshall Dennehey’s client in a personal injury case involving a severe ankle injury stemming from a fall on a boat. The issue of liability was hotly contested at trial. The jury ultimately found the plaintiff husband and the defendant boat operator each 50 percent negligent and awarded only $10,000 in damages—an amount well below the stipulated amount of economic damages. No amount was awarded to the plaintiff’s wife for loss of consortium. The trial court molded the $10,000 verdict to $5,000, reflecting the plaintiff husband’s comparative negligence. The plaintiffs appealed, seeking a new trial limited to the issue of damages. In a published opinion, the Superior Court affirmed the low verdict and held that the jury was permitted to compromise the liability issue with the amount of damages awarded.

In Carol’s case Sullivan v. Haywood, No. 2043 MDA 2013 (Pa.Super. Mar. 16, 2015), the Superior Court affirmed two partial grants of summary judgment awarded to Marshall Dennehey’s client, a dentist. In a unanimous ruling, the Superior Court held that partial summary judgment was properly granted on negligence and loss of consortium claims as both were barred by the applicable two-year statute of limitations. Moreover, neither the discovery rule nor the doctrine of fraudulent concealment applied to toll the statute of limitations. The court also affirmed the partial grant of summary judgment on a breach of contract claim, reasoning that a computer-generated photograph used to illustrate what the plaintiff’s teeth might have looked like once all the recommended work was done did not constitute a specific executory promise necessary to sustain a breach of contract action.

In Sterling v. P&H Mining Equip., Inc., 2015 Pa.Super. LEXIS 186 (Pa.Super. Mar. 16, 2015), Carol convinced the Superior Court to affirm a grant of summary judgment awarded to Marshall Dennehey’s client in an asbestos action. In a unanimous ruling, the Superior Court held that the plaintiff failed to adduce sufficient evidence of exposure to asbestos from the defendant’s product. Specifically, the court held that the proffered co-worker’s testimony could not cure the deficiencies in the plaintiff’s own testimony and that the plaintiff’s “dust” testimony was too speculative to establish exposure to asbestos fibers.

Finally, Carol also succeeded in obtaining a reversal by the Pennsylvania Commonwealth Court of an interlocutory order that had been accepted for immediate appeal. Marshall Dennehey’s client, a Commonwealth agency, moved for partial judgment on the pleadings to limit the scope of damages recoverable under the Wrongful Death Act by the parents of the decedent. The trial court denied the motion in part, thereby allowing the decedent’s parents to pursue their claim for non-pecuniary losses—such as loss of comfort and society. In a published opinion, the Commonwealth Court held that the recovery of non-pecuniary losses from a Commonwealth agency is barred by the Sovereign Immunity Act. Ebersole v. SEPTA, 2015 Pa.Commw. LEXIS 107 (Pa.Commw. Mar. 12, 2015).

Audrey Copeland (King of Prussia, PA) obtained affirmances from the Third Circuit in two cases. In Murphy v. Township of Radnor, 2015 U.S.App. LEXIS 4555 (3d Cir. Mar. 20, 2015), the Third Circuit affirmed the trial court’s judgment on a defense verdict where the plaintiff contended that the defendant Township violated the USERRA by declining to offer him a second interview for the position of Township Manager, or the position itself, allegedly based upon his military reserve commitments. The court upheld the trial court’s rulings denying the plaintiff’s request to charge the jury with a “cat’s paw” instruction and allowing the testimony of other candidates for the township manager position.

In Reifinger v. Parkland School District, 2015 U.S.App. LEXIS 2000 (3d Cir. Feb. 9, 2015), Audrey convinced the court to affirm the District Court’s grant of summary judgment for the defendant school district in an ADEA and PHRA case. The plaintiff, a former driver education instructor, asserted claims for constructive discharge and retaliation in the administration of the Behind-the-Wheel program, allegedly based on his age. When assignments were previously scheduled according to the instructors’ seniority, the plaintiff had earned between $25,000-$30,000 a year, in addition to his regular teacher’s salary, but the new rotational scheduling, which treated all instructors equally, resulted in the plaintiff receiving fewer assignments. The court held that the plaintiff could not establish a prima facie case of constructive discharge because he did not suffer an adverse employment action, having voluntarily retired, and did not submit evidence that permitted a reasonable inference of age discrimination. Among other things, the plaintiff was not reassigned, but, rather, the school district changed its scheduling system for instructors and then disbanded the program entirely. These changes affected young and elderly workers equally and were implemented by a department chair the same age as the plaintiff. The court also reasoned that none of the working conditions associated with the program were so objectively intolerable as to cause constructive discharge or alteration in his employment. Nor was there any objective evidence that those conditions resulted from the plaintiff being treated differently than a younger employee.

Audrey also persuaded the Superior Court to affirm the entry of judgment in the defendant driver’s favor in Lloyd v. Bell, 1807 EDA 2014 (Pa.Super. Mar. 3, 2015), thus winning a second appeal in this case on a different issue. In this second appeal, the Superior Court held that the trial court did not err or abuse its discretion by allowing the introduction of evidence, primarily during cross-examination, of the plaintiff’s pre-accident medical history, which included test results and treatment information. The court also held that the plaintiff waived certain errors involving the charge and the composition of the verdict slip by failing to present adequate support for these arguments on appeal.

In addition, Audrey obtained a victory in the Commonwealth Court in Dersham v. WCAB (Dean Puderbaugh Trucking), No. 1171 CD 2014 (Pa.Commw.Ct., Feb. 11, 2015) wherein the court affirmed the Workers’ Compensation Appeal Board’s and the Workers’ Compensation Judge’s orders denying the claimant’s claim petition, in which he sought total disability and medical expenses for vision problems that he claimed resulted from a work incident whereby he was allegedly sprayed in the face with water used in the fracking process. The court held that the Judge issued a reasoned decision setting forth the basis for his decision that the injury was not work-related and finding that the claimant’s medical testimony on causation was not credible. Most significantly, the claimant’s expert provided no explanation as to how the injury could occur to the interior of the claimant’s eye through an alleged external chemical exposure without any damage to the exterior parts of his eye that were allegedly splashed by the chemicals.

*Prior Results Do Not Guarantee A Similar Outcome

_{Defense Digest, Vol. 21, No. 2, June 2015}

_{Defense Digest 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. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}