.

Samuel E. Cohen

Chair, Securities and Investments Professional Liability Practice Group

SECohen@mdwcg.com

Portrait of Samuel E. Cohen

As Chair of the Securities & Investments Professional Liability Practice Group, Sam represents broker-dealers, registered representatives and registered investment advisors in state and federal court and in Financial Industry Regulatory Authority (FINRA) arbitration proceedings. Sam also represents broker-dealers, registered representatives and registered investment advisors before state and federal regulatory authorities as well as in FINRA investigations, examinations, inquiries and enforcement matters. As well, Sam represents registered representatives in FINRA expungement proceedings. Sam's practice also includes the defense of life insurance agents and brokers, real estate agents and title agents.

From 1996 through 1997, Sam served as a law clerk to the Honorable G. Craig Lord in the Court of Common Pleas of Philadelphia County. Sam graduated from Temple University in 1993 where he received a Bachelor of Business Administration and subsequently his juris doctor in 1996 from Temple University School of Law. At Temple Law School, Sam served as the vice president of his graduating class.

In 2019 Sam was appointed to serve on the Special Olympics PA-Philadelphia Executive Advisory Board. The Executive Advisory Board assists Special Olympics PA-Philadelphia by opening doors to key community and corporate contacts, raising funding for the program, providing high-level support of its strategic objectives and in general, advocating on behalf of its athletes and mission.

    • Temple University Beasley School of Law (J.D., 1996)
    • Temple University (B.B.A., 1993)
    • New Jersey, 1996
    • Pennsylvania, 1996
    • AV® Preeminent™ by Martindale-Hubbell®
    • Pennsylvania Super Lawyers Rising Star (2005-2008)
    • Pennsylvania Bar Association
    • Philadelphia Bar Association
    • Special Olympics Pennsylvania, Philadelphia Executive Advisory Board, 2019-Present
    • Best Interest Reviews: Decoding FINRA Rule 2330 (Variable Annuities), Financial Services Institute OneVoice Conference, January 28, 2025 
    • Outside Business Activities: Overview and Best Practices for Broker-Dealers, 7th Annual CNA Life Agent and Broker-Dealer Conference, October 5, 2023
    • Educational and Technology Tools that May Save You in the Long Run if You Are Named in an Arbitration/Lawsuit, IBDC (Independent Broker Dealer Consortium) Annual Risk Management Conference, May 8, 2023
    • Hiring with Caution: How One Bad Apple Can Spoil Your Business, Alternative & Direct Investment Securities Association (ADISA) Annual Conference and Trade Show, October 11, 2022
    • Claims Involving Life Insurance Impacting Life Agents and Broker-Dealers, Independent Broker Dealer Consortium (IBDC) Annual Conference, September 2021
    • Current Issues Facing Broker-Dealers, Registered Investment Advisors and Their E&O Carriers, Client seminar, June 22, 2021
    • Reconciling SEC and FINRA Examinations in Complex Products and Business Practices. Independent Broker Dealer Consortium 10th Annual Risk Management Conference in Amelia Island, Florida, October 2018.
    • Department of Labor Fiduciary Rule, Delaware County Estate Planning Council, September 2017
    • Reducing Regulatory Exposure: Properly Preparing for FINRA and SEC Regulatory Examination, Independent Broker-Dealer Consortium Annual Conference, September 2017
    • Protecting Seniors, A Priority for FINRA, State and Federal Legislators, and Arbitration Panels, 2016 Cadaret, Grant Advisor Forum, October 21, 2016
    • Legislative Update on Issues of Concern to Financial Advisors and Independent Broker Dealers, Financial Services Institute, April 2010
    • "DOL's Retirement Security Rule Imposes New Fiduciary Standards on Financial Services, Insurance Industries,"The Legal Intelligencer, May 10, 2024
    • "FINRA Proposal Creates Urgency for Brokers Seeking Expungement of Customer Complaints,"The Legal Intelligencer, May 4, 2023
    • "FINRA, the SEC and Congress Aim to Safeguard Senior Investors,"The Legal Intelligencer, May 12, 2022
    • "FINRA Proposes Rule to Streamline Broker/Dealers’ Oversight of Outside Business Activities", Aon Advisor Solutions, Summer 2018 Newsletter 
    • “Protecting Seniors: A Priority for FINRA, Federal and State Legislators, and Arbitration Panels,” Defense Digest, Vol. 22, No. 3, September 2016
    • "Protecting Seniors: A Priority for FINRA, Federal and State Legislators, and Arbitration Panels," Financial Services Institute newsletter, July 2016
    • Legal Updates for Securities, regular contributor, 2015-present
    • "Bum Rap? Wrap Fee Programs Under Scrutiny," Westlaw Journal: Securities Regulation & Litigation, October 2014
    • Case Law Alerts, regular contributor, 2012-present
    • "FINRA Requests Comment On Brokercheck Enhancements," Defense Digest, Vol. 18, No. 2, June 2012
    • "Covenants Not To Compete: Why You May Not Be Able To Work For Your Employer's Competitors," co-author, AgentsofAmerica.org, January 13, 2009
    • "FINRA Moves to Limit Dispositive Motions In Arbitration," PLUS Journal, Volume XXI, Number 1, January 2008
    • "NASD Approves Merger With The New York Stock Exchange," Defense Digest, Vol. 13, No. 2, June 2007
    • "Injured Plaintiff Has No Direct Action Against Tortfeasor's Insurer for Bad Faith," Pittsburgh Legal Journal
    • "Customer Account Statements Must Include Reminder To Customers To Report Inaccuracies In Their Accounts In Writing," Defense Digest, Vol. 13, No. 2, June 2007
    • "529 Plans: Tax Free Withdrawals Now Permanent, But Regulatory Concerns Remain," Defense Digest, Vol. 13, No. 1, March 2007
    • "U.S. Supreme Court Continues Its Strong Support Of Arbitration," Defense Digest, Vol. 12, No. 2, June 2006
    • "Agreements To Arbitrate Upheld By Pennsylvania State And Eastern District Court Despite Alleged Confidential Relationship Between Plaintiff Investors And Defendant Stockbrokers," Defense Digest, Vol. 11, No. 3, September 2005
    • "Judge Reversed On Order Compelling Court Action To Arbitration," Defense Digest, Vol. 10, No. 1, March 2004
    • "NASD Reminds Firm Of Their Discovery Obligations," Defense Digest, Vol. 10, No. 1, March 2004
    • "NASD Members Are Warned To Give Investors Their Required Breaks," PLUS Journal, September 2003, Vol. XVI, No. 9 and Defense Digest, Vol. 9, No. 2, June 2003
    • "Injured Plaintiff Has No Direct Action Against Tortfeasor's Insurer For 'Bad Faith'," Pittsburgh Legal Journal, June 9, 1998
    • "No Assignment -- No Excess Garnishment," Defense Digest, Vol. 4, No. 3, June 1998
    • Defense award obtained on behalf of our client, a registered investment advisor, in a FINRA arbitration involving alleged mismanagement and lack of transparency concerning a Donor Advised Fund. The arbitration panel denied the claims in their entirety and recommended expungement of the claim from our client's registration records.  
    • Defense award obtained in a binding FINRA arbitration in Columbus, Ohio on behalf of a financial advisor. The Claimant alleged unauthorized trading and breach of fiduciary duty in connection with individual stock trades. The Claimant further alleged breach of fiduciary duty in relation to the financial advisor’s recommendation that the account be changed from a commission based to an advisory fee-based account.
    • Defense verdict obtained on behalf of a broker dealer in a FINRA arbitration alleging over concentration in energy and precious metals investments. 
    • Defense verdict obtained on behalf of broker-dealer in arbitration in a suit brought by two retired broker Claimants who sought $5 million dollars in past and future benefits under a retirement program which paid override fees to retired brokers on books of business the retired brokers had developed decades ago.
    • Expungement recommendation obtained in FINRA arbitration on behalf of financial advisor involving investment losses in an advisory account.
    • Defense verdict obtained on behalf of a registered investment advisor and broker-dealer following a four day jury trial in Schuylkill County.  The registered investment advisor and broker dealer were sued by their former client for investment losses.  The Plaintiff was a paraplegic whose wealth was obtained through a jury verdict and settlements related to his injuries.  The case was defended on the basis that the registered investment advisor met the standard of care and did not breach any duties owed to the Plaintiff, as well as the fact that the Plaintiff was net profitable in his investments.  The Plaintiff sought to "cherry pick" losing investments from an overall profitable portfolio.  
    • Defense verdict obtained on behalf of a broker-dealer and a broker in a FINRA arbitration in New York. The Claimant, owner of a broker-dealer, alleged he was being charged an unreasonable mark-up on municipal bond sales and that he was the victim of elder abuse. In granting the motion to dismiss, the arbitration panel found that the Claimant failed to present a basis for his claim and recommended expungement of all references to the arbitration from the broker's records maintained by FINRA on the grounds that the claim, allegation or information was factually impossible or clearly erroneous. As well, the panel found the mark-ups on the municipal bonds sold to Claimant were not unfair or unreasonable and were not inconsistent with industry regulations.  
    • Defense verdict obtained on behalf of broker-dealer in FINRA arbitration where the customer alleged that a violation of her privacy had occurred, as well as asserting claims for fraud, breach of fiduciary duty, negligence and breach of contract.
    • Defense verdict obtained on behalf of a broker-dealer and broker in FINRA arbitration alleging unsuitability and securities fraud in sale of a variable annuity. The defense was presented on the grounds that the variable annuity was suitable to the investment objectives of the customer and that any losses sustained by the customer were market related. 
    • Defense of broker-dealer in "selling away" case in FINRA arbitration alleging failure to supervise broker who allegedly operated a Ponzi scheme while affiliated with the broker dealer. Defense proceeded on the grounds that the broker-dealer's supervision of the broker was reasonable and that the Plaintiff did not sustain any losses in his investment in the scheme. Defense verdict obtained.
    • Motion to dismiss, with prejudice, granted in FINRA arbitration based upon Plaintiff customer's repeated discovery violations. Motion to dismiss upheld in federal district court following petition to vacate arbitration award filed by Plaintiff customer. Motion to dismiss granted in FINRA arbitration based upon FINRA Eligibility Rule.
    • Defense verdict obtained in FINRA arbitration on behalf of broker and broker-dealer where the public customer alleged that she was not properly advised regarding the tax implications resulting from a premature withdrawal from a variable annuity in a IRA account.
    • Motion to dismiss granted on behalf of title insurance agent in Federal civil RICO case.
    • Expungement obtained in FINRA arbitration on behalf of broker in case involving suitability of non-publicly traded REITs.
    • Dismissal on behalf of real estate agent in seller's disclosure case.
    • Dismissal on behalf of supervising life insurance general agent in wrongful termination case.
    • Motion for judgment on the pleadings granted on behalf of title insurance agent in real estate fraud case.

Results

View all
empty courtroom photo

Summary Judgment Secured for Life Insurance Agent

Defense Verdict Secured in FINRA Arbitration Matter

We obtained a defense verdict in a FINRA arbitration where the claimant donated approximately $600,000 to a donor advised fund in 2012 and took a tax deduction. The claimant alleged that the donor advised fund was mismanaged and lost approximately $140,000 in value in 2022. We defended the fund’s managers in the case based upon the claimant’s lack of standing once the funds were donated. Further, we presented evidence through the respondent’s testimony that the account was managed in accordance with the goals and objectives set for the account. In addition, we presented evidence that the account was overall profitable and performed better than the S&P 500 index during the relevant time period.

Thought Leadership

View all

DOL's Retirement Security Rule Imposes New Fiduciary Standards on Financial Services, Insurance Industries

May 10, 2024

Like many recent DOL rules related to retirement investing, the retirement security rule is polarizing and is sure to face significant legal challenges, including from the insurance industry to whom the rule applies a new, heightened duty.

Legal Updates for Securities and Investments

FINRA Announces Effective Date for New Procedures for Expungement Requests

August 16, 2023

On August 11, 2023, FINRA published Regulatory Notice 23-12, which offers guidance on recent rule amendments to FINRA Rules 12800 and 12805 related to the expungement of customer dispute information from BrokerCheck.  The below rule amendments become effective on October 16, 2023.  Straight-in requests (an expungement where a broker files an arbitration case against their current or former brokerage firm requesting the expungement of a client complaint) be decided by a three-person panel that is randomly selected from a roster of experienced public arbitrators with enhanced expungement training (Special Arbitrator Roster); Prohibit parties to a straight-in request from agreeing to fewer than three arbitrators to consider their expungement requests, striking any of the selected arbitrators, stipulating to an arbitrator’s removal, or stipulating to the use of pre-selected arbitrators; Provide notifications to state securities regulators of all requests to expunge customer dispute information and a mechanism for state securities regulators to attend and participate in expungement hearings in straight-in requests; Impose strict time limits on the filing of straight-in requests; Specify procedures for requesting expungement of customer dispute information during simplified customer arbitrations; Codify and update the best practices in the Notice to Arbitrators and Parties on Expanded Expungement Guidance (Guidance) applicable to all expungement hearings, which include establishing additional requirements for expungement hearings, facilitating customer attendance and participation in all aspects of the expungement hearings and codifying the panel’s ability to request any evidence relevant to the expungement request; Require the unanimous agreement of the panel to issue an award containing expungement relief; and Establish procedural requirements for filing expungement requests, which include on-behalf-of requests. Brokers with old or dated customer disputes on their BrokerCheck report which are not part of an existing arbitration claim should consider filing an expungement before October 16, 2023, to avoid the forthcoming onerous expungement proceeding requirements.      Legal Update for Securities Litigation – August 16, 2023, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved.

Firm Highlights

Jason Banonis Holds PDI Attorney of the Year Award with the PDI President

News

Jason Banonis Named Attorney of the Year by the Pennsylvania Defense Institute

Result

Federal Statute Declared Constitutional

In this products liability case, the Supreme Court of Pennsylvania reversed the Superior Court and upheld the constitutionality of the Protection of Lawful Commerce in Arms Act (PLCAA), which resulted in judgment as a matter of law for the defendant manufacturer.

Thought Leadership

Florida Supreme Court Adopts Traditionally More Expansive Concept of Occupational Causation

The Florida Supreme Court issued a significant decision rebuking the First District Court of Appeal (1st DCA) in the high-profile case of Bouayad v. Normandy Insurance Co., a case addressing the compensability of workplace injuries resulting from assaults by third-party tortfeasors. The Judge of Compensation Claims (JCC) found the claimant was entitled to workers' compensation benefits, relying in part on the Florida Supreme Court's earlier decision in Strother v. Morrison Cafeteria from 1980. In Strother, the Court upheld an award of benefits to a cashier who was assaulted and robbed by individuals who followed her home from work under the mistaken belief that she was carrying restaurant cash deposits. In Bouayad, the 1st DCA concluded that the claimant's injuries were not compensable because they did not arise out of his employment. The Florida Supreme Court disagreed, holding that the 1st DCA applied too narrow an interpretation of the "arising out of employment" requirement. In doing so, the Court reaffirmed a broader and more traditional view of occupational causation than that recently adopted by the 1st DCA. The claimant in Bouayad was the general manager of a car rental business operating from a hotel near an airport. Around midnight, while walking along a covered outdoor walkway from the hotel's atrium, where the rental kiosk was located, to an office near the pool, he was shot multiple times by an unidentified assailant. As part of his regular duties, the claimant carried rental agreements and cash receipts from the kiosk to the office at the end of each shift. After the shooting, the claimant managed to return to the hotel atrium, where he stated that he believed "Robert" had shot him, referring to an individual who had threatened the claimant's son the previous day. The assailant, however, was never identified. Consequently, the Supreme Court analyzed the case as involving an unknown third party while the claimant was acting within the course and scope of his employment. The central issue therefore was whether the injury "arose out of" the claimant’s employment. At the final hearing, the claimant presented evidence regarding the risks and hazards associated with his employment, including the nature of his duties, his late-night work schedule, and the location of the business in a high-turnover hotel near a major airport. His expert opined that these factors exposed him to an increased risk of becoming the victim of a crime while at work. In contrast, the employer/carrier's expert characterized the shooting as a targeted attack rather than a robbery and asserted that the risk of violent crime was actually higher near the claimant's residence than at the hotel. Based on that analysis, the expert concluded that the claimant was not exposed to an increased workplace risk. The 1st DCA focused narrowly on the specific activity the claimant was performing at the moment of injury. According to the court, the claimant's “work performed” at the time of the shooting was simply "walking" between two employer-operated locations, and that act of walking did not itself cause the injury. The Florida Supreme Court found this analysis far too myopic and inconsistent with decades of workers' compensation precedent. Reaffirming longstanding principles of workplace causation, the Court explained that the proper inquiry is not whether the precise physical task being performed at the moment of injury directly caused the harm. Rather, the relevant question is whether the employment, viewed as a whole, exposed the worker to risks and hazards that contributed to the injury. The decision is significant because it reinforces a broader conception of work-relatedness in the “arising out of” compensability analysis. Instead of limiting the causation analysis to the employee's discrete physical activity at the time of injury, courts must consider the totality of the employment circumstances, including the employee's duties, work environment, hours, and occupational risks. Under that framework, an injury may arise out of employment when the employment places the employee in a position of increased hazard, even if the specific task being performed at the moment of injury is not itself the direct cause of the harm.

Result

Statutory Employer Immunity Upheld

In this construction accident case that resulted in a $5 million verdict, the Supreme Court of Pennsylvania upheld the Statutory Employer Doctrine, which immunizes general contractors and other contractors on construction sites when certain elements are satisfied.

Thought Leadership

Appellate Division Affirmed Trial Judge’s Orders Granting Summary Judgement for Defendants on COVID-19 Case

In Dunne v. Advanced Subacute Rehab Servs. at Sewell, LLC, et al., the plaintiffs appealed from two Law Division orders. By way of background, Louis Doto, Sr. (Doto) worked for BP & SC Services, Inc. (BP). BP leased Doto to Advanced Subacute Rehabilitation Center at Sewell, LLC (Advanced Subacute) and it had control of his work, paid wages, and had the power to hire or fire him. A BP employee was assigned to the facility to train and supervise him and BP was responsible for securing workers’ compensation coverage. Doto worked as an aide in the laundry department. Linen from COVID-19 residents were delivered in clearly marked bags and he had no direct contact with residents. A co-worker, Sheila Smith, was also an aide and she never contracted COVID-19 at the facility. Advanced Subacute did not require Doto to wear an N-95 mask, but instead a surgical mask, though N-95 masks were available to all employees. He was also required to attend period mandatory meetings with other high-risk employees, the last of which he attended was in November 2020. All employees were required to test for COVID-19 and there were no reported cases from June to October 2020. On December 23, 2020, Doto tested positive for COVID-19 and passed away on January 18, 2021. The last member of housekeeping that Doto may have encountered tested positive 22 days earlier. After his death, OSHA found two “serious” violations concerning the N-95 masks worn by housekeepers. In response, Advanced Subacute fit tested all non-clinical staff. Doto’s estate filed a workers’ compensation claim and named both BP and Advanced Subacute as his employer. The estate received an award. In July 2022, the plaintiffs filed a complaint in the Law Division, alleging wrongful death and survivor causes of action. In October 2024, the defendants moved for summary judgment, arguing: 1) immunity pursuant to the Emergency Health Powers Act: 2) the exclusive remedy provision of the Workers’ Compensation Act; 3) Doto’s inability to establish infection at the facility; 4) net expert opinions by the plaintiffs’ expert; and 5) inadmissibility of the OSHA report. The plaintiffs opposed and filed a cross-motion for summary judgment, arguing: 1) no immunity as Advanced Subacute engaged in gross negligent or willful misconduct; 2) no preclusion by the Workers’ Compensation Act as Doto was not Advanced Subacute’s employee; and 3) no net expert opinions. In February 2025, the judge issued a written decision granting the defendants’ motion. Specifically, he found Advanced Subacute’s COVID-19 immunity precluded the plaintiffs’ claim as no reasonable jury could find any gross negligence or utter disregard for Doto’s safety. He also addressed the other defenses for completeness. The plaintiffs moved for reconsideration and the judge issued another written decision denying the plaintiffs’ motion in April 2025. The plaintiffs then appealed both decision. The Appellate Division affirmed the orders for reasons stated by the judge in his written decisions. The Appellate Division only added: 1) Advanced Subacute acted consistently with the legislative grant of immunity; 2) there was no doubt Doto was an employee of both BP and Advanced Subacute and the latter may have inadvertently failed to follow some precautions; and 3) confirmed the plaintiffs’ experts did not identify a basis for their opinions. Ultimately, the Appellate Division found no reason to disturb the judge’s well-reasoned decisions and affirmed the judge’s orders.

Result

$1.09 Billion Products Liability Verdict Overturned

In this products liability crashworthiness case, the Superior Court of Pennsylvania reversed a Philadelphia jury verdict of $1.09 billion, the largest verdict ever overturned by a PA appellate court.  The court ordered a new trial based on deficient jury instructions, clarified important aspects of crashworthiness law, and confirmed that so-called standard jury instructions may be incompatible with Pennsylvania law. 

Ellen C. Bodenmiller Joins Marshall Dennehey’s Tampa Office as Special Counsel in the Casualty Department

News

Ellen C. Bodenmiller Joins Marshall Dennehey’s Tampa Office as Special Counsel in the Casualty Department

Result

$19 Million Medical Malpractice Verdict Overturned

In this medical malpractice case, the trial court vacated $10 million of a $19 million verdict in post-trial motions and the Superior Court of Pennsylvania vacated the remaining $9 million on appeal.

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

Thought Leadership

Commonwealth Court Deemed Worker an Employee Despite Independent Contractor Agreement; Insurer Estopped from Denying Coverage

In this case, the claimant filed a Claim Petition for injuries sustained on October 28, 2019, naming J&S as his Employer, and alleging that the injuries occurred when he fell from a ladder while installing a satellite dish for Dish Network. Dish Network contracted with J&S to install satellite dishes. Subsequently J&S filed a Petition to Join Brickstreet Insurance Company and the claimant filed a Claim Petition against the Uninsured Employer Guaranty Fund. The Fund then joined Dish Network as another employer.  Before the Workers’ Compensation Judge (WCJ), the claimant testified that he was hired in 2015 by J&S and at the time signed an Independent Contractor Agreement (IC Agreement). J&S defended the case on the basis that the claimant was not an employee, but was an independent contractor, even after the IC Agreement expired. Additional evidence showed that, at the time of the October 28, 2019, work injury, J&S’ workers’ compensation insurance with Brickstreet had lapsed, even though a Brickstreet agent had been working to renew J&S’ policy and had a Certificate for coverage from September 25, 2019 to September 25, 2020 issued, with Dish Network listed as the Certificate Holder. A renewal policy was not in effect at the time the Certificate was issued and the agent learned on October 25, 2019 that Brickstreet was not going to renew their policy with J&S, due to an unpaid premium.    Ultimately, the WCJ found that the claimant was an employee of J&S at the time of the work injury and that J&S did not have a workers’ compensation policy in place at the time, due to their failure to pay the renewal premium to Brickstreet. The WCJ also found Dish Network was a Statutory Employer under Section 302(a) of the Act. The Claim Petition and the Guaranty Fund Claim Petition were both granted, as was the Guaranty Fund’s Petition to Join Dish Network. The WCJ also denied J&S’ Petition to Join Brickstreet, finding that neither J&S or Dish Network showed that Brickstreet was estopped from denying coverage. J&S and Dish Network appealed to the Workers’ Compensation Appeal Board (Board) and the Board affirmed. J&S and Dish Network appealed to the Commonwealth Court. The Commonwealth Court rejected J&S' argument that the claimant was an independent contractor. In doing so, the court noted that the claimant credibly testified that he worked for J&S full time, could not work for another company, and that J&S, scheduled his jobs, tracked him, and scheduled additional installations, if he finished early. Additionally, the court noted the claimant lacked discretion in the manner he performed his job, because all questions had to be referred to J&S.  As for Dish Network’s appeal, the court held that the WCJ erred in holding that Brickstreet was not estopped from denying coverage as to Dish Network. According to the court, the insurance agent was an authorized representative of Brickstreet and, at the direction of J&S, issued the Certificate of Insurance that he knew was not accurate at the time, and was aware would be presented as proof of coverage for J&S. Dish Network relied upon that information and continued to use J&S, ultimately leading to Dish Network being named as the Statutory Employer liable for payment of benefits because of J&S’ uninsured status. The court held that the Board erred in affirming the WCJ ’s conclusion that Dish Network did not establish that Brickstreet was equitably estopped from denying coverage, reversed the decision below, and remanded the case to the WCJ.