On the Pulse…Marshall Dennehey Is Happy to Celebrate Our Recent Appellate Victories*
Shane Haselbarth (Philadelphia, PA) succeeded in an appeal following a FINRA arbitration. Marshall Dennehey’s client was a broker-dealer having custody of the claimant’s retirement account for the last three of its fourteen-year span. The claimant had a relationship with an individual advisor, who lied to the claimant for the entire time concerning the balance of his retirement account, despite accurate records sent by our broker-dealer. The FINRA arbitration panel ruled in favor of the broker-dealer because the individual advisor’s improper conduct was not only undiscoverable by the broker-dealer but outside the scope of employment. After a defense arbitration award, the claimant appealed to the Federal District Court and then again to the Federal Court of Appeals. In both courts, Shane presented briefing and oral argument advocating for a judgment confirming the defense award. Both courts ruled in our client’s favor. The court of appeals, in particular, was swayed by Shane’s argument and ruled in a way that strengthened and buttressed the rationale of the award and completely exonerated the broker-dealer from any accusation of wrongdoing. Ebbe v. Concorde Inv. Servs., LLC, 392 F. Supp. 3d 228 (D. Mass. 2019), aff’d, 953 F.3d 172 (1st Cir. Mar. 24, 2020).
Kimberly Berman (Fort Lauderdale, FL) prevailed in the Fifth District Court of Appeal on a petition for review of a homeowners’ fence dispute. The homeowners claimed the homeowners association’s response to their request to mediate the dispute violated the applicable mediation statutes. They sued the association for declaratory and injunctive relief. The circuit court, sitting in its appellate capacity, had affirmed the final judgment in favor of the association and awarded it appellate attorney’s fees and costs. The homeowners then filed a petition for writ of certiorari to the Fifth District Court of Appeal, alleging the circuit court deprived them of due process and committed an error of law that resulted in a miscarriage of justice. The Fifth District Court of Appeal denied the petition and awarded the association its appellate attorney’s fees. This prompted the homeowners to dismiss another pending appeal and resolve all claims for attorney’s fees in favor of the association without further litigation. Peterson v. Cambridge Crossing Phase 1, et al., 5D19-2648 (Fla. 5th DCA Jan. 17, 2020).
Kimberly also obtained an affirmance by Florida’s Fourth District Court of Appeal of a final judgment entered in favor of a campground/recreational vehicle site in a claim that the electrical connection to the recreational vehicle was not up to code. Everett v. Kampgrounds of America, Inc., 4D19-3574 (Fla. 4th DCA Jan. 23, 2020).
Finally, in Pullins v. David G. Candeleria, an individual, Eddie E. Farah, an individual, Charlie E. Farah, an individual, and Farah and Farah, P.A., a Florida Law Firm, 1D19-1575 (Fla. 1st DCA Feb. 10, 2020), Kimberly convinced Florida’s First District Court of Appeal to deny a petition for writ of prohibition seeking to disqualify the trial judge in a legal malpractice case.
Audrey Copeland (King of Prussia, PA) obtained the Commonwealth Court’s affirmance of the trial court’s dismissal of two plaintiffs’ individual and derivative claims against the defendant members of a condominium association board based upon lack of standing, the unincorporated status of the condo association, the statute of limitations, and because the plaintiffs were not trustees ad litem. The court also rejected the plaintiffs’ assertions that the trial court violated their rights to free speech and purportedly abused its discretion by forcing the litigants to pay private attorneys to serve as special masters, and affirmed the denial of a motion to recuse the trial judge. Dana v. Lofts at 1234 Condo. Ass’n, 2020 Pa. Commw. Unpub. LEXIS 154 (Commw. Ct. Mar. 12, 2020); Cooley v. Lofts at 1234 Condo. Ass’n, 2020 Pa. Commw. Unpub. LEXIS 161 (Commw. Ct. Mar. 13, 2020).
In another case, Audrey convinced the Commonwealth Court that the claimant, a delivery driver, was an independent contractor and, thus, not entitled to receive workers’ compensation benefits. The court focused on the evidence showing that the defendant did not have sufficient right to control the manner in which the claimant performed his work on a day-to-day basis, even though the claimant had to wear the defendant’s uniform shirt, bear a defendant-issued ID card, and could only substitute his service with another driver who met the customer’s security requirements. Other factors which established independent contractor status were that the claimant supplied the delivery vehicle and paid for its operating costs, maintenance, and insurance coverage; the claimant chose his own driving route; the claimant’s schedule was dictated by the customers; the claimant maintained his own work injury insurance; receipt of insurance was conditioned upon the claimant being an independent contractor; the claimant was paid by the job; no taxes were deducted by the defendant; the claimant signed an agreement that he was an independent contractor; and the defendant was primarily concerned with the result only, that successful deliveries were made. Beavex, Inc. v. Workers’ Comp. Appeal Bd. (Ramierz), 2020 Pa. Commw. Unpub. LEXIS 173 ( Commw. Ct. Apr. 15, 2020).
In Killian v. Skyline Health Care, LLC, 2020 Pa. Super. Unpub. LEXIS 1289 (Pa. Super. Apr. 15, 2020), Audrey convinced the Pennsylvania Superior Court to reverse the trial court’s order overruling the defendants’ preliminary objections in the nature of a motion to compel enforcement of an arbitration agreement signed by the plaintiff’s decedent and the co-defendants, Golden Living/Facility, prior to the defendants’ purchase of the facility. The defendants were not signatories to the agreement, but Audrey argued that they fell within the definition of the term “successors,” and the court agreed based upon dictionary definitions and the evidence.
John Hare (Philadelphia, PA) succeeded in having the Pennsylvania Superior Court reverse, as excessive, a $10 million wrongful death award. The jury had also awarded $10 million in survival damages, but that award was reversed in post-trial motions.
Thomas Specht (Scranton, PA) was able to convince the Pennsylvania Superior Court to quash an appeal where the appellant had failed to file a statement of matters complained of with the lower court.
*Prior Results Do Not Guarantee A Similar Outcome
Defense Digest, Vol. 26, No. 2, June 2020 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. © 2020 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.