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Capehart Scatchard Admits Seven New Shareholders

Capehart Scatchard is pleased to announce that seven attorneys were admitted as shareholders to the 142 year old law firm. 

The new shareholders at Capehart Scatchard are:

Dana M. Gayeski – Workers’ Compensation Department

Katherine Hellander Geist – Workers’ Compensation Department

Michael C. Rose – Workers’ Compensation Department

Adam Segal – Workers’ Compensation Department

Lauren E. Tedesco-Dallas – Education and Employment & Labor Departments

Voris M. Tejada, Jr. – Litigation Department

Benjamin H. Zieman – Litigation Department

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March of Dimes 2019 Onward and Upward!

By: Vincent T. Cieslik, Esq.

In late December of 2018, the Greater Philadelphia Board of Directors of the March of Dimes met for our annual board retreat at Shriner’s Hospital on Broad Street in Philadelphia.

This particular meeting marked the third time the board had met for an annual retreat since the organization had undergone a metamorphosis, an inward looking and outward re-branding transition throughout the national organization.  The March of Dimes, like many other charitable organizations, had undergone a comprehensive review of its staff, systems, and structure with an eye towards reenergizing its long-standing mission, one that dates back to the days when Franklin Delano Roosevelt was our President, to bring healthy babies into the world.

With a renewed emphasis on healthy babies and healthy moms, a new brand, some new faces and a reinvigorated approach to raising funds, the March of Dimes and the Greater Philadelphia Board had reorganized itself, and in the process, recommitted itself to its important mission. 

For me personally, this was an opportunity for me to increase my participation and my leadership position, from a solely South Jersey impact, to impacting mothers and babies throughout the Greater Philadelphia Region.  It was an opportunity for me to stretch my legs, to get out of my local comfort zone, to meet new and interesting executives, business people, doctors, nurses, and interested parties throughout the tri-state area.  What originally began for me as a way to give back to the doctors and the nurses who helped my family, through many years of difficult and troubled pregnancies, became an excellent opportunity for me to work on a greater scale, and to hopefully impact many more mothers’ and babies’ lives along the way. 

During this period I met and was able to get to know better, representatives of the former Philadelphia Board, whom were dedicated volunteers with backgrounds at great corporate partners like NBC Universal, Philadelphia Insurance Companies, and some of our areas finest hospital providers like University of Pennsylvania, which houses our Prematurity Infant Research Center.  During our transition we brought volunteers throughout the tri-state area together into one Board.   I was able to attend events not just in Southern Jersey but throughout the region, including events at the Union League, at Xfinity Live, black tie affairs in Atlantic City, and one of the area’s largest charitable giving luncheons known as the Transportation Bridge and Construction Luncheon.  I am truly thankful that I decided to get involved in the March of Dimes many years ago.  The March of Dimes is a special organization, and with the transition of the Greater Philadelphia Board and the organization nationwide, we are poised for great things in the New Year 2019.   If anyone is interested in joining the Board or getting involved in one of the Board’s committees, please contact me.

I have been a sponsor and a chairperson for the March of Dimes Walk for Babies in Gloucester County for several years.  This Spring 2019 we will host our third annual 5K run for Babies on the campus of Rowan University.

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Vincent T. Cieslik, Esq. is Co-Chair of the firm’s Business Litigation Group and a Shareholder in the firm’s Commercial Litigation and Health Care Groups.  Vince focuses his practice in the representation of individuals, small businesses, not-for-profits and large corporations in complicated and often high-risk litigation. His areas of expertise are in commercial litigation, health care law, and estate law. He is admitted to practice law in the federal and state courts of New Jersey and Pennsylvania, as well as the U.S. Court of Appeals 3rd Circuit and the U.S. Court of Appeals 11th Circuit.

In his personal time, Vince supports the March of Dimes of South Jersey, serves as the Walk Chairman for the March of Dimes Walk for Babies and 5K Run for Babies, and serves as a member of a local school board. He also coaches youth basketball and track, and enjoys long distance running including the Philadelphia, New York, and prestigious Boston Marathon.

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McNeil v. Township of Ewing et al.

Client: NIP Management Services, LLC,
Claims Administrator for the Garden State Municipal Joint Insurance Fund

Court:  Mercer County Superior Court

Trial Attorney:  Christopher J. Carlson, Esq.

Plaintiff brought a claim alleging a variety of very serious injuries to several parts of her body which she attributed to a minor motor vehicle accident where a police officer in the course of his employment lightly struck the rear of the vehicle in which Plaintiff was a passenger.  Similar bodily injury claims asserted on behalf of her two children were dismissed via a Motion for Summary Judgment relying upon the Tort Claims Act, but Plaintiff’s claim was permitted to proceed to trial.  Liability was accordingly stipulated, with the issue of damages to be decided by the jury.

After thorough cross-examination of Plaintiff which called into question her version of the accident and what allegedly happened to her body within the vehicle, and thus her credibility, the jury was shown vehicle “damage” photographs and heard the testimony of the vehicle owner, who acknowledged that the vehicle was never repaired after the accident.  Thereafter, the defense relied upon the report and testimony of an accident reconstructionist and a biomechanist, arguing that- contrary to her testimony- the minimal impact would not have subjected Plaintiff’s body to forces severe enough to cause her significant and permanent injury, which Plaintiff was required to prove in order to prevail under the Tort Claims Act, applicable to this matter given the status of Defendants as a municipal entity.

Thorough cross-examination of Plaintiff’s medical expert, combined with credible testimony from the defense medical expert, presented the jury with evidence that many of Plaintiff’s alleged injuries were at least to some extent pre-existing, and completed the presentation of a defense that comprehensively refuted each aspect of Plaintiff’s claim.

The jury accordingly returned a verdict for our clients, finding that Plaintiff’s alleged injuries attributable to the accident did not satisfy the Tort Claims Act.

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Richard Marconi v. United Airlines

Client: United Airlines

Trial Counsel: Prudence M. Higbee, Esq. 

The petitioner, a New Jersey resident who works for the respondent as an aircraft mechanic at the Philadelphia International Airport in Pennsylvania, filed two claim petitions. Claim Petition 2016-31488 alleges that on January 31, 2015 the petitioner injured his left hip while changing brakes, tires and helping a co-employee with an engine job. The respondent admitted this claim but alleged that it made full payment of benefits to petitioner under Pennsylvania workers’ compensation law. Claim Petition 2016-31489 alleges that petitioner’s repetitive duties as an aircraft mechanic working for respondent during the period commencing from January 1, 1986 through the present caused injury to his left hip. Respondent denied compensability of this claim leaving petitioner to his proofs.

Respondent filed a Motion to Dismiss both claims for Lack of Jurisdiction arguing that although petitioner is a New Jersey resident the injuries alleged in the Claim Petitions occurred in Pennsylvania where the contract of hire was also executed. Of note, the New Jersey’s Workers’ Compensation Act does not have an extra-territoriality jurisdiction provision and instead requires consideration of the particular facts of a case.

In finding for the respondent the trial judge noted six possible grounds for asserting applicability of a particular state’s compensation act: 1) place where the injury occurred; 2) place of making the contract; 3) place where the employment relation exists or is carried out; 4) place where the industry is localized; 5) place where the employee resides; or 6) place whose statutes the parties expressly adopted by contract.

The trial judge found that the petitioner’s contact with New Jersey in performing his job are not material in nature, nor is there any connection to the injury. Although the Newark, New Jersey Airport is a “hub” with vastly more mechanics than Philadelphia, the petitioner only called there for advice and at most “once every couple of months.” The petitioner could not recall ever working in the Newark, New Jersey airport and he never picked up any parts in Newark.

After reviewing those factors the trial judge ultimately noted that the alleged injuries occurred at the petitioner’s place of employment in Pennsylvania where the contract of hire was also signed. The Judge noted that the localization of the industry noted in prong four has never been found to confer jurisdiction on a respondent. After acknowledging a present dispute among the Appellate Division panels, the trial judge found that although the petitioner did reside within New Jersey that residency alone is insufficient in conferring jurisdiction. The petitioner has subsequently filed an appeal of the trial judge’s findings. That appeal is presently pending before the New Jersey Superior Court Appellate Division.

 

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Emily Manuel vs. St. Barnabas Health

Client: St. Barnabas Health

Trial Counsel: Christina M. Adinolfi Shea, Esq. 

Capehart Scatchard recently prevailed at trial in the matter of Emily Manuel v. St. Barnabas.  In that case the court bifurcated the trial to first address whether the injury sustained by the petitioner was due to an accident that arose out of the course and scope of her employment at St. Barnabas.  The facts of the case were largely undisputed.  On the evening of December 30, 2015 the petitioner was employed by the respondent as an emergency room nurse.  The petitioner drove to work and parked at one of two adjacent lots across the street from the hospital where she worked.  The two lots were owned by a private company and hospital employees had money taken out of their paychecks for the privilege of parking in the private lots.  The petitioner chose to park in the lot and was provided a sticker to place on her vehicle.  The sticker was provided by the hospital.  There was a designated walkway and the lot had a sign posted indicating that parking was for hospital employees only.  The petitioner testified that the majority of nurses parked in the two lots and the company who owned the lots provided shuttles from the hospital to the lots.

On the evening in question, after completing her shift, the petitioner left the hospital, walked off the property towards the private lots and began to cross the street to the lots within a crosswalk when she was hit by an oncoming car.

A member of the security team testified on respondent’s behalf that approximately half of the employees used the lots in questions, however, other places employees could park included metered parking, a visitor’s lot and a light rail system that services the hospital.  He testified that the hospital leases spots in these lots directly from the parking lot owner with money being recouped out of the employees’ paychecks. He further testified that the hospital exercise no control over the lots and performed no maintenance or snow removal. Despite provisions in the contract concerning use of the lot by unauthorized vehicles and maintenance of the lot by the employer, the hospital never undertook any of these functions.  However, the petitioner contended the existence of these functions in the lease allowed the respondent to control the lots, but they chose not to do so.

The primary issue before the court was whether the facts set forth fall within the purview of the Supreme Court decision Hersh v. County of Morris, or if they are distinguishable. In Hersh the Supreme Court found that the garage used by employees was not part of the premises of the employer, and significantly, the employer did not control the garage.  It was neither owned nor maintained by the employer.  “The employer derived no direct business interest from paying for employees to park in the garage.  Most importantly, the accident occurred on a public street not under the control of the employer.  In walking a few blocks from the garage to her workplace, Hersh did not assume any special or additional hazard.”  The Hersh Court went on to state the following: When the legislature amended the Workers’ Compensation Act and added the phrase “excluding areas not under the control by the employer.” N.J.S.A. 34:5-36 intended to clarify that employers are liable for more than “just the four walls of an office or plant”, but the plain language of the act reveals it is not intended to expand the employer’s liability to publically owned areas not under direct control of the employer.

Applying the principles from Hersh the judge of compensation first concluded that the lot was not owned or maintained by the employer and although the lease agreement allowed the employer to exercise limited control of the parking garage, the garage owners actually exercised daily control and management of the garage. Second, the petitioner was injured on a public street not within the control of the respondent where the petitioner was directed not to cross.  Third, the respondent provided an alternate means to get to the garage, namely a shuttle bus, however, the petitioner chose not to use it, but to walk to the garage.

Based upon the aforementioned reasons the trial court found the injuries sustained by the petitioner did not arise out of or in the course of her employment with the respondent.  The petitioner has now filed an appeal of the trial judge’s decision. The appeal is presently pending before the New Jersey Superior Court’s Appellate Division.

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Storm In Progress Defense Under New York Law

By: Kristen Mowery, Law Clerk

Under New York law, courts recognize an exception to the ordinary duty of care owed—that is, to keep the landowner’s premises reasonably safe of dangerous or hazardous conditions—known as the storm in progress doctrine.  Brandimarte v. Liat Holding Corp., 158 A.D.3d 664, 664-65 (N.Y. App. Div. 2018); Gervasi v. Blagojevic, 158 A.D.3d 613, 613 (N.Y. App. Div. 2018).  According to the storm in progress rule, plaintiffs are precluded from recovering for injuries that occur on a landowner’s property and are caused by the accumulation of snow and ice.  Smith v. Christ’s First Presbyterian Church, 93 A.D.3d 839, 839-40 (N.Y. App. Div. 2012).  The exception shields landowners from liability where the storm is ongoing because “shovel[ing] snow while continuing precipitation or high winds are simply re-covering the walkways as fast as they are cleaned [would] render[] the effort fruitless.”  Powell v. MLG Hillside Assocs., 290 A.D.2d 345, 345 (N.Y. App. Div. 2002).  Thus, landowners are afforded a reasonable time following the cessation of a storm to remedy the dangerous condition the storm created. Id.

Where a defendant presents sufficient evidence that the storm was ongoing during the time of the injury, she is entitled to judgment as a matter of law. See id. at 345 (“Where the evidence is clear that the accident occurred while the storm was still in progress, defendants may avail themselves of the rule as a matter of law.”); see also Sherman v. New York State Thruway Auth., 27 N.Y.3d 1019, 1021 (N.Y. 2016); Smith, 93 A.D.3d at 839; Marchese v. Skenderi, 51 A.D.3d 642, 642 (N.Y. App. Div. 2008). Furthermore, as the party moving for summary judgment, a defendant “ha[s] the burden of establishing, prima facie, that it neither created the snow and ice condition nor had actual or constructive notice of the condition.” Smith, 93 A.D.3d at 839.

Defendants can satisfy this prima facie burden by presenting testimonial or deposition evidence of witnesses, experts, or the plaintiff herself.  See Sherman, 27 N.Y.3d at 1021.  The most persuasive evidence, however, is “the analysis of a licensed meteorologist.”  Powell, 290 A.D.2d at 345.  In Powell, one of the leading New York cases on the doctrine, plaintiff’s meteorologist presented climatological charts to show that approximately two inches of snow had fallen overnight, but that “precipitation had tailed off to less than one-tenth of an inch (the equivalent of less than 0.01 inches of rain) per hour” by 6:00 a.m. the following morning.  Id. at 346.  Because the fall occurred around 9:15 a.m., and because the custodian was not brought to the scene until anywhere from 8:00 a.m. to 9:40 a.m., the court concluded that the defendants failed to act with the appropriate degree of care once the storm ceased and their duty of care arose.  Id. at 345-46.  To this end, the court noted, “[o]nce there is a period of inactivity after cessation of the storm, it becomes a question of fact as to whether the delay in commencing the cleanup was reasonable.”  Id. at 346.

In 2016, the highest New York court supported its decision to affirm the Appellate Division’s grant of summary judgment for defendants with defendant’s uncontroverted evidence of plaintiff’s own testimony and a certified weather report.  Sherman, 27 N.Y.3d at 1021.  Sherman involved a New York State Trooper who sought recovery from the New York State Thruway Authority following a fall on an icy sidewalk outside the plaintiff’s barracks.  Id. at 1020.  Defendant presented plaintiff’s deposition, in which plaintiff testified that “‘an ice storm’ had taken place the night before the accident, and an ‘intermittent wintry mix’ of snow, sleet and rain persisted the next morning until 6:50 a.m., when claimant arrived at the trooper barracks for work.”  Id. at 1021.  Because there was continuous precipitation at the time of the accident around 8:15 a.m., that had been ongoing since the night before and involved near freezing temperatures, the court concluded that defendant was entitled to the storm in progress defense and thus, not liable as a matter of law. Id.

Landowners must keep their premises free of dangerous conditions, including those caused by snow, ice, and freezing rain.  However, New York law recognizes the need to allow for a reasonable period of time before the obligation to clear walkways arises.  Where a storm is still ongoing and an unfortunate accident occurs, the injured party can only recover if it shows the landowner’s duty arose following the storm’s cessation, and that the landowner failed to remedy the dangerous situation within a reasonable time.  New York courts will grant summary judgment and dismiss a plaintiff’s complaint where landowners present prima facie evidence, especially from a certified meteorologist, that the storm was ongoing at the time of the injury.  As one New York opinion expressed, “in the absence of proof that the plaintiff slipped and fell as a result of something other than snow, the plaintiff has no cause of action against the defendants.” Marchese, 51 A.D.3d at 643.

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Capehart Scatchard Raises Funds for Breast Cancer Charity

Attorneys and staff at Capehart Scatchard.

During Breast Cancer Awareness Month, Capehart Scatchard held a “Jeans Month” fundraiser for the National Breast Cancer Foundation, Inc. (NBCF).

To support the cause, attorneys and staff were asked to donate $25 to wear jeans to work for the entire month of October.  For those employees who did not wish to participate the entire month, a $2 donation was requested every day they wore jeans to the office. The firm is pleased to announce that “Jeans Month” raised $1,379 for NBCF.

The National Breast Cancer Foundation was founded in 1991 by breast cancer survivor, Janelle Hail. NBCF continues to grow every year to help more and more women around the world by educating them about breast cancer and providing free mammograms to women in need.

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Capehart Scatchard Managing Partner Speaks on Breaking Barriers – Women Reaching the Pinnacle of the Legal Profession

Breaking Barriers – Women Reaching the Pinnacle of the Legal Profession, Rutgers Law School, Camden, Tuesday, Oct. 16, 2018.

On October 16, 2018, Mary Ellen Rose, Esq. joined a panel of women leaders in the law who shared their paths to leadership. The group discussed their successes, obstacles they faced along the way and the traits of successful leaders.  The event was held at Rutgers Law School in Camden, and was sponsored by the New Jersey Women Lawyers Association, Rutgers Center for Gender, Sexuality, Law & Policy, the Minority Student Program, Women’s Law Caucus and the Center for Career Development.

Ms. Rose, a lifelong resident of New Jersey, focuses her practice in the areas of commercial and business law, transportation, and franchise law.  She received her undergraduate degree magna cum laude from West Virginia University and her law degree from Rutgers University School of Law in Camden.  She is admitted to practice in New Jersey and Pennsylvania.

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Capehart Scatchard Shareholder Panelist at SABA Event

On October 9, 2018, Capehart Scatchard Shareholder, Sanmathi (Sanu) Dev, Esq. spoke as a panelist at a joint event of the South Asian Bar Association of New Jersey and the South Asian Bar Association of New York.

Ms. Dev participated in a panel discussion entitled, “Rainmaking and Path to Partnership.”  Panel members discussed marketing and business development techniques as well as tools and strategies for getting on the partnership track.

A Hamilton resident, Ms. Dev concentrates her practice on school law and labor and employment law.  She is experienced in representing, advising, and defending boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline and civil rights.  She leads Capehart Scatchard’s School Law Blog, which focuses on cases, court decisions, and current developments affecting education law in the state of New Jersey.  Ms. Dev is the Chair of the Firm’s Diversity and Inclusion Committee, which seeks to facilitate the Firm’s efforts to achieve and maintain a diverse and inclusive workplace at every level of our organization.  She received her law degree from Rutgers Law School at Camden and her B.A. degree from Boston University.

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Capehart Scatchard Shareholders Address National Workers’ Compensation Conference

Capehart Scatchard Shareholders, John H. Geaney, Esq. and Lora V. Northen, Esq. recently spoke at the National Workers’ Compensation Defense Network’s (“NWCDN”) National Conference in Minneapolis, Minnesota.

Mr. Geaney, representing New Jersey, participated in a panel discussion entitled, “What is the Value of a Compensable Claim in Your State.”  The panel addressed issues of wage calculations, full and final settlement options, future medical and final settlement options from injuries ranging from sprain/strains to surgical cases.

Ms. Northen, past president of NWCDN, participated in a panel discussion along with Nicole Giddings of Andersen Corporation, Maria Iorlano of Bed Bath & Beyond and Simonetta Leveque of Nordsrom in a presentation entitled, “The Anatomy of a Super Bowl Winning Team.” The panelists discussed the key components to creating and maintaining a collaborative and coordinated workers’ compensation claims team.

A seasoned workers’ compensation practitioner for over 30 years, Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual and A Guide to Employment Issues Under the ADA & FMLA distributed by the New Jersey Institute for Continuing Legal Education.  Mr. Geaney concentrates his practice in the representation of employers in workers’ compensation defense matters, the Americans with Disabilities Act, and the Family and Medical Leave Act.

In addition to her responsibilities as Co-Chair of the Workers’ Compensation Department, Ms. Northen focuses her practice in the representation of employers, self-insured companies, and insurance carriers.  Certified as a trial attorney by the Supreme Court of New Jersey in Workers’ Compensation Law, Ms. Northen is a member of the New Jersey, Pennsylvania, Burlington County and Camden County Bar Associations.  Ms. Northen is also a Fellow of the College of Workers’ Compensation Attorneys for the American Bar Association.  She is a frequent speaker on workers’ compensation issues before a myriad of trade organizations.

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