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

Defense Digest, Vol. 24, No. 4, December 2018

Audrey Copeland (King of Prussia, PA) obtained the Commonwealth Court’s affirmance of the trial court’s entry of judgment notwithstanding the verdict in favor of the City of Philadelphia in a fall down case. While disembarking from a SEPTA bus, the plaintiff allegedly fell on a trench on 52nd Street, which she claimed had only been partially restored after a construction project. The court relied on the seminal case of Leiphart v. City of Philadelphia, 972 A.2d 1239 (Pa.Commw. 2009) to find that the “streets” exception to governmental immunity, 42 Pa.C.S. § 8542(b), did not apply because 52nd Street is a state-owned highway and there was no written agreement between the City and PennDot by which the City assumed the maintenance and repair of 52nd Street. The court also found the “trees, traffic controls and street lighting” exception to be inapplicable. Nor was it erroneous to include SEPTA on the verdict sheet, despite having been dismissed by all parties, because there was sufficient evidence to warrant submission of SEPTA’s negligence to the jury. Redmond v. City of Philadelphia, et al., 2018 Pa.Commw. LEXIS 534 (Pa.Commw. July 26, 2018).

In another Commonwealth Court case, Audrey convinced the court to affirm the Workers’ Compensation Appeal Board’s decision reversing the Workers’ Compensation Judge’s grant of reinstatement after a suspension in a workers’ compensation case. The court found that the Appeal Board applied the correct burden of proof as the claimant herself had advanced the worsening of her condition as her reason for reinstatement. The court also found that the Board did not disregard the Judge’s credibility findings, in light of the claimant’s lack of evidence showing the specific time or reason for her change in condition. Cannon v. Workers’ Comp. Appeal Board (General Motors), 2018 Pa.Commw. LEXIS 534 (Pa.Commw. July 17, 2018).

Audrey also persuaded the Superior Court to affirm the trial court’s denial of the plaintiff’s motion for a new trial after a defense verdict in favor of the defendant, a resident’s association. The plaintiff, a community resident, claimed that she tripped and fell on a tree branch on common-area steps at night as a result of a burned out PECO light post, and that the Association allegedly failed to ensure that the light was fixed. The court held that the trial court did not err by charging the jury that the plaintiff was entitled only to the care due to a licensee on the property, not an invitee. Hackett v. Indian King Resident’s Association, 2018 Pa.Super. LEXIS 937 (Pa.Super., Aug. 29, 2018).

_{Defense Digest, Vol. 24, No. 4, December 2018. 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 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 tamontemuro@mdwcg.com.}