Cases
Significant Representative Matters: In a product liability / class action case, a unanimous Third Circuit panel affirmed the District Court's denial of class certification. The individual plaintiffs-property owners claiming defects in yellow-jacketed, corrugated stainless steel tubing used to transport natural gas
allegedly present in their structures-sued on behalf of a putative class. However, both the District Court
Third Circuit agreed with the arguments advanced by the defendants: that the class was not ascertainable without mini-trials
individual inquiries, that questions common to the class did not predominate in the case, that the proofs necessary to establish both liability
damages would differ across the putative class members' claims,
that the various state laws governing their disparate claims included separate, non-overlapping elements-all of which are at cross-purposes with class treatment. Though the Third Circuit granted the plaintiffs' request for interlocutory review of the class certification decision over defendants' objection, nevertheless it affirmed the District Court's denial of class certification. Adams Pointe I, L.P. v. Tru-Flex Metal Hose Corp., ___ Fed. App'x ___, 2021 WL 3612155 (3d Cir. Aug. 16, 2021)
The U.S. Court of Appeals for the Third Circuit ruled no unfair trade practices claim was stated against licensed unclaimed proper finder who assisted plaintiff in retrieving his own lost money. The plaintiff, after entering into a contract with the property finder service (the terms
language of which are regulated by the Pennsylvania Department of the Treasury),
actually receiving his funds before they escheated to the state, sued under the Unfair Trade Practices Act on the theory that the service failed to disclose that the plaintiff could retrieve his lost funds for free on his own. The Third Circuit rejected the plaintiff's unreasonable presumption that the pre-printed forms gave the impression that the finder's services were the only way he could retrieve his money. Instead, those forms disclose all the information [the plaintiff] would need to recover the property himself
further inform him of the services it provides in exchange for the fee, none of which indicate or even suggest that [the plaintiff] could not otherwise recover his property or that [the finder service's] assistance was necessary. Thus, it affirmed dismissal of the case at the pleading stage, seeing no merit worthy of discovery
trial. DeSimone v. U.S. Claims Servs. Inc., ___ Fed. App'x ___, 2021 WL 1662779 (3d Cir. Apr. 28, 2021).
The U.S. Court of Appeals for the Third Circuit affirmed the dismissal, at the motion to dismiss stage, of this civil rights action against a county Children & Youth Agency
its staff attorneys
caseworkers. The Plaintiffs brought their 5-month-old child to the hospital, where he was diagnosed with a spiral fracture mid-shaft on his right humerus. The hospital team collectively concluded that the injury was probably accidental in nature, but a nurse reported the injury to C&A, concerned that it might have been caused by abuse. C&A initiated its state-m
ated investigation, wherein a judge approved the request for a safety plan that required chaperone to be with the parents
child while the merits of the abuse investigation continued. At the end of the investigation, the judge concluded the injury was accidental,
the safety plan was terminated. The Plaintiffs then filed this action, alleging that the safety plan violated their Fourteenth Amendment substantive due process rights. The federal district court dismissed the case, concluding that the Plaintiffs' allegations of interference with the family unit, even if true, do not rise to the level of shocking to the conscience, necessary for a due process violation. On appeal, the Third Circuit affirmed, agreeing with Shane's argument that the nurse's report of possible child abuse, in conjunction with other evidence to support even the suspicion of the same, make the municipal Defendants' actions not shocking to the conscience,
so no substantive due process claim was stated. A.J. v. Lancaster County, 826 Fed. App'x 248 (3d Cir. Sept. 16, 2020).
The U.S. Court of Appeals for the First Circuit affirmed the judgment of the U.S. District Court for the District of Massachusetts in favor of Shane's client. In this FINRA arbitration case, the Claimant retired from his job
invested his entire savings through an individual advisor. The advisor moved from broker-dealer to broker-dealer over the next fourteen years, as is typical in the industry. However, atypically, the individual advisor lied to Claimant, telling him his withdrawals from the account were from the interest only. In reality, they came from the principal,
steadily depleted the account to zero. Suit was filed,
a FINRA arbitration panel ruled in favor of Shane's broker-dealer client, because the individual advisor's improper conduct was not only undiscoverable by the broker-dealer but outside the scope of employment. After the defense arbitration award, the Claimant appealed first to the District Court,
then again to the Court of Appeals. In both courts, Shane briefed
orally argued the case, advocating for a judgment confirming the defense award. Both courts ruled in Shane's client's favor, with the First Circuit in particular being swayed by Shane's argument,
ruling in a way that strengthened
buttressed the rationale of the award,
completely exonerating the broker-dealer from any accusation of wrongdoing. Ebbe v. Concorde Inv. Servs., LLC, 953 F.3d 172 (1st Cir. 2020), affirming 392 F. Supp. 3d 228 (D. Mass. 2019).
Shane convinced the Superior Court that Pennsylvania lacks general personal jurisdiction over his national client because it is not at home here, even though it is a limited liability company whose sole member is a Pennsylvania corporation. While that corporation is at home in the Commonwealth, the Superior Court agreed that the LLC is not, because it lacks sufficient business operations here. It concluded that suit arising from a tractor trailer crash outside Pennsylvania-even involving a plaintiff who lives in Pennsylvania-must be filed elsewhere, because Pennsylvania's jurisdiction does not reach this not-at-home defendant. Ismail v. Volvo Group North America, LLC, No. 1231 EDA 2017 (Pa. Super. Mar. 2, 2018)
In this civil rights case the District Court denied qualified immunity to several individual Pittsburgh police officers, holding that a jury could find their conduct was unconstitutional. The plaintiff was a passenger in a vehicle that sped from Homestead into neighboring Pittsburgh's bar
restaurant district on Carson Street, at a time when it was flooded with pedestrians
other law abiding citizens. Reacting quickly to the rapidly increasing threat, the officers fired on the vehicle as it swerved in
out of its appropriate travel lane
crashed into cars parked along the street. In the process, the plaintiff-passenger was struck by a bullet. On appeal from the denial of qualified immunity, Shane obtained a unanimous, precedential decision from the Third Circuit, holding that the officers did not violate any constitutional right of the plaintiff. The Court held that the officers shot at the vehicle with knowledge that it engaged in such reckless
unlawful conduct,
their actions were objectively reasonable as a matter of law. The case was rem
ed with instructions to enter summary judgment for the officers. Davenport v. Borough of Homestead, 870 F.3d 273 (3d Cir. 2017).
The Second District Court of Appeal of Florida unanimously affirmed the entry of summary judgment in favor of Shane's client in this declaratory judgment action, involving homeowners' association obligations. In the 1980s, a property developer erected a club to administer common amenities such as clubhouses, a private beach,
exercise facilities, with membership in the club designated as the owners of properties in four separate, later-developed communities. The four communities thereafter erected their own homeowners' associations. This suit began with a slim majority of one homeowners' association purporting to exempt its members from membership in the club via an amendment passed in 2014. The trial court rejected this improper attempt to alter membership in the club, which is tied to the l
, because it was attempted by one-half-of-one-quarter of the club's membership
contrary to the club's governing documents. Under well-established Florida law, the attempted change in membership came from the wrong voting members, via an improper procedure, inequitably,
too late. After plenary briefing
oral argument, the DCA saw no issue
issued a per curiam order affirming judgment for Shane's client. Placida Pointe Home Owners Ass'n v. Placida Harbour Club, Inc., No. 2D16-413, 2017 Fla. App. LEXIS 3065 (Fla. 2d DCA Mar. 8, 2017).
The Pennsylvania Superior Court unanimously affirmed a dismissal of a complaint with prejudice, filed by an insured against his home
auto insurer. The suit alleged that the issuance of a homeowner's policy with a $1 million liability limit required the insurer to advise its insured to purchase more than the $100,000 auto policy he had. The dispute arose after the insured's spouse caused a fatal car accident,
the wrongful death suit settled for $300,000, with the insurer tendering the full value of the auto policy. The Superior Court rejected the insured's arguments that the insurer was bound to advise the insured to purchase greater levels of auto liability insurance, or to equalize the disparate liability policies. The Court also affirmed that the insurer's commercial advertising campaign did not render it liable under the Unfair Trade Practices Act in light of its clearly stated policy limits. Cohan v. United Services Automobile Association, 683 EDA 2016 (Pa. Super. Jan. 5, 2017).
In this databreach suit, the Court of Appeals for the Third Circuit affirmed the District Court's dismissal of the Plaintiffs' complaint with prejudice. Plaintiffs, on behalf of a class of employees
customers of Shane's clients, medical
dental benefit providers, sued following a breach of the providers' computer network by non-party, criminal hackers. The class members' personal identifying information was stolen
used to file fraudulent tax returns, causing them monetary harm. The Third Circuit agreed that Pennsylvania law barred the tort claim, as the economic loss doctrine requires allegations of personal injury or property damage to assert a cause of action for negligence. In addition, the Third Circuit held that the dismissal of the contract claim was proper, because the complaint failed plausibly to state a claim that the Defendants agreed contractually to protect the class members' data from breach by hackers. Longenecker-Wells v. Benecard Services, No. 15-3538, 2016 U.S. App. LEXIS 15696 (3d Cir. Aug, 25, 2016).
The Court of Appeals for the Third Circuit unanimously vacated the District Court's denial of qualified immunity to Shane's client, a police officer. The complaint asserted that the officer initiated a chase of the now-convicted co-defendant,
reached speeds exceeding 110 miles per hour before the co-defendant crashed into the innocent plaintiff. The District Court denied a qualified immunity motion to dismiss, filed in response to the 14th Amendment due process claim asserted against the officer, concluding that fact issues remained that required a trial. Shane persuaded the Third Circuit that the District Court failed to analyze the pure question of law whether the right alleged by the Plaintiff was clearly established on the date of the incident. The Third Circuit vacated the denial of qualified immunity,
rem
ed. Conte v. Rios, No. 15-3361, 2016 U.S. App. LEXIS 13915 (3d Cir. Aug. 1, 2016).
The Superior Court of Pennsylvania affirmed by unanimous opinion a verdict in favor of Shane's insurer client in this first-party breach of contract action. The plaintiff suffered damages to his retail inventory caused by smoke
soot infiltration from a nearby fire,
made a claim for remediation under the policy. The insurer adjusted the loss
issued a check per the terms of the policy for the whole loss amount. After depositing the check, the plaintiff filed suit seeking additional damage, represented as additional cleaning
restoration costs. At trial, the plaintiff presented the testimony of its owner, who justified the claim for additional damages by the ongoing cleaning costs for the inventory. The defense relied on the expert testimony of a certified restoration company, who could perform the job at a fraction of the cost. The trial court found that the defense figure was the true cost of damages,
the Superior Court rejected the plaintiff's argument on appeal. The Classic Lighting Emporium, Inc. v. Erie Insurance Exchange, No. 3158 EDA 2014 (Pa. Super. Nov. 17, 2015).
A unanimous panel of the Court of Appeals for the Eleventh Circuit affirmed the entry of judgment in favor of Shane's client, an employer with a healthcare plan governed by ERISA. The plaintiff sought statutory damages of up to $110 per day going back years, plus attorney's fees, against the employer
the co-defendant third-party administrator, asserting that she was unable to obtain requested documents from both parties, which were necessary to appeal the termination of her long-term disability benefits. Against the employer specifically, the plaintiff asserted that it had a duty to amend historical plan documents to update its address, as she relied on an old address in seeking documents without success. The Eleventh Circuit rejected the claim, holding that the District Court did not abuse its discretion in declining to award statutory penalties, especially where the Plaintiff not only had the document she later requested, but also had the means of knowing the proper address to which to send requests. Smiley v. Hartford Life
Accident Insurance Company, 610 Fed. Appx. 8, 2015 U.S. App. LEXIS 12334 (11th Cir. Jul. 17, 2015).
In this tortious interference/civil conspiracy matter, the trial court dismissed the case for failure of the plaintiff to timely serve original process. Shane defended against the appeal by plaintiff, which argued that plaintiff's good faith efforts
mere mistake easily satisfied Pennsylvania's service rules. The Superior Court unanimously decided against plaintiff,
affirmed the dismissal of the case for failure to make timely service. Smash PA, Inc. v. Lehigh Valley Restaurant Group, Inc., 1811 EDA 2014 (Pa. Super. April 14, 2015).
In an underinsured motorist case, the federal Court of Appeals for the Third Circuit upheld summary judgment granted in favor of Shane's client. The plaintiff, carrying UM coverage on top of applicable policy limits of $100,000, sued
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,
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 Plaintiff. Gallagher v. Ohio Casualty Insurance Company, 2015 U.S. App. LEXIS 1426 (3d Cir. Jan. 29, 2015).
A unanimous panel of the Superior Court affirmed the entry of summary judgment in favor of Shane's client, a heavy construction equipment manufacturer
dealer. Despite being the lone deep pocket in a case with large exposure due to the catastrophic
permanent injuries, the Superior Court agreed that the deposition testimony could not allow the claim to survive summary judgment, because there was no evidence that the design of the product caused the accident
injuries to the plaintiff. Williams v. Anderson Equip. Co., Komatsu American Corporation, 1454 WDA 2013 (Pa. Super. Oct 7, 2014).
In a premises liability case involving severe head
cognitive injuries, Shane successfully defended against suit in Pennsylvania against a California golf resort. The Third Circuit agreed with the District Court that no basis for personal jurisdiction over the resort was demonstrated from the record, but rem
ed for jurisdictional discovery. After a round of written discovery
depositions, Shane assisted the trial attorney in a new briefing on the jurisdictional issue. The Eastern District of Pennsylvania renewed its conclusion that no basis for jurisdiction could be demonstrated
dismissed the case a second time. There was no appeal. Rocke v. Pebble Beach Company, 541 Fed. Appx. 208 (3d Cir. Oct 10, 2013) & 2014 U.S. Dist. LEXIS 60218 (E.D. Pa. April 28, 2014).
Published Works: The Phantom Vehicle: Prejudice in Delayed UM Claim Not Presumed, But Certainly Demonstrable, Defense Digest, Vol. 20, No. 1, March 2014
Case Law Alerts, regular contributor, January 2014-present
