Defense Digest, Vol. 29, No. 4, December 2023

On the Pulse…Recent Appellate Victories*

Carol VanderWoude (Philadelphia, PA) and Patrick Carey (Erie, PA) obtained a reversal in the Third Circuit Court of Appeals of a district court’s denial, in part, of a motion for summary judgment on qualified immunity grounds. In a unanimous, precedential opinion, the Third Circuit agreed with Carol and Patrick that a Johnsonburg police officer’s attempted arrest of the plaintiff did not constitute an unlawful seizure under the Fourth Amendment. A neighboring police department, St. Mary’s, had secured a search warrant to obtain a DNA sample from the plaintiff, who was a suspect in a recent burglary. St. Mary’s Police instructed Johnsonburg Police to hold the suspect if they encountered him and to call St. Mary’s. Patrick’s client, who knew the plaintiff and was familiar with his past criminal history and drug problems, mistakenly believed that St. Mary’s had issued an arrest warrant for the plaintiff. As the officer was sitting in his police vehicle, he spotted plaintiff walking down the street. The plaintiff walked up to the the officer, and they had a friendly conversation. However, when the officer advised the plaintiff that he needed to be taken into custody, the plaintiff fled. The officer pursued, and a fight ensued. The district court inexplicably held that the officer’s initial attempt to detain the plaintiff, at the time the officer encountered him walking down the street, was an unlawful seizure—either a Terry stop or an arrest. The Third Circuit reversed, reasoning that, although the officer intended to arrest the plaintiff, no seizure occurred because the plaintiff never submitted to the officer’s assertion of authority. Angel Perez, Jr. v. Borough of Johnsonburg, et al., 74 F.4th 129 (3d Cir. 2023).

Audrey Copeland (King of Prussia, PA) persuaded the Pennsylvania Commonwealth Court to affirm the summary judgment entered on behalf of the Philadelphia Parking Authority (PPA), dismissing the plaintiff’s promissory estoppel and unjust enrichment claims based on allegations that she agreed to enter a deferred retirement program based upon a promise that she could remain in her preferred employment. The court stated that it was bound by Scott v. Philadelphia Parking Authority, 166 A.2d 278 (Pa. 1960), and its progeny, which held that absent legislative authorization, contractual and quasi-contractual guarantees of tenured employment for public, at-will employees are not enforceable and are void ab initio as ultra vires actions of a municipal corporation. Mason v. Philadelphia Parking Auth., 2023 WL 4996672 (Pa. Cmwlth. Aug. 4, 2023). 

Audrey also obtained favorable decisions from the Commonwealth Court for the firm’s clients in a number of workers’ compensation appeals. In Cannon v. General Motors, 2023 WL 5439475 (Pa. Cmwlth. Aug. 24, 2023), the Board affirmed the judge’s grant of the employer’s petition to terminate benefits, and the court agreed that the employer established a change in the claimant’s medical condition. In Vazquez v. Arthur Jackson Co., 2023 WL 4994484 (Pa. Cmwlth. Aug. 4, 2023), the court affirmed the Board’s order upholding the judge’s denial of a claim petition, where the judge had rejected the claimant’s testimony and the existence of any work-related injury, and also finding that the employer’s expert’s opinion did not constitute an admission or competent evidence that a work-related injury occurred as it was based on the false history provided by the claimant. In C. Jean v. Bloomin’ Brands, Inc., 2023 WL 6205971 (Pa. Cmwlth. Sept. 25, 2023), the court affirmed the Board’s order upholding the judge’s grant of the employer’s termination petition and denying the claimant’s review petition. The court agreed with the employer that the judge had not misconstrued the employer’s expert’s opinion as to whether the claimant had recovered from her work injury. In Mercy Catholic Med. Ctr v. Ryan, 2023 WL 6798973 (Pa. Cmwlth. Oct. 16, 2023), the court reversed the Board’s order awarding benefits relating to an aggravation of the claimant’s conditions, as the averment was not well pleaded, the record contained substantial evidence supporting the judge’s fact and credibility findings, and the employer’s expert’s opinion was competent. 

John Hare and Shane Haselbarth (Philadelphia, PA) prevailed in a unanimous, precedential decision of the Superior Court of Pennsylvania that applied Pennsylvania’s statute of repose to bar construction defect claims brought by homeowners. The plaintiffs were joined by 55 amici, and the national builder represented by John and Shane was joined by numerous construction organizations as amici. The decision reconciles conflicting case law and will be dispositive of hundreds of pending construction defect lawsuits in Pennsylvania.

*Results do not guarantee a similar result.


Defense Digest, Vol. 29, No. 4, December 2023, 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. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact