Appellate Practice

Appellate advocacy has always been a special area of focus at Schnader. The firm’s founders developed a vibrant appellate practice in both federal and state courts, with Bernard G. Segal, one of the foremost appellate advocates of his day, arguing scores of appeals throughout the country, including a dozen cases in the Supreme Court of the United States. In recent years, the Firm has attracted such preeminent appellate litigators as former Third Circuit Judges Arlin Adams and Timothy Lewis.

The work of Schnader’s Appellate Practice Group ranges from run-of-the mill civil, commercial, and criminal appeals to "bet the business" litigation affecting the fundamental workings, and sometimes even the viability, of our clients. We handle matters in all courts and of all types. As a representative sample, some of the decisions we obtained in recent months are listed below.

We also have frequently been retained as counsel for governmental bodies — including appellate courts themselves — when they have become engaged in litigation in the public eye that is expected to be decided ultimately on appeal. Our governmental clients have included the Senate of Pennsylvania; the Supreme Court of Pennsylvania, its justices, and a number of other Pennsylvania courts and judicial agencies; and several Pennsylvania executive and administrative agencies.

Perhaps because of our commitment to and experience in appellate advocacy, Schnader lawyers are regularly requested by appellate and other courts to present argument on significant legal issues on behalf of parties who cannot afford to pay for their own attorneys. Just by way of example, the Third Circuit Court of Appeals has appointed Schnader lawyers as pro bono lawyers in dozens of cases involving such issues as prisoners' civil rights, the Hague Convention, and immigration issues. Indeed, in Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993), we established the legal standard for appointment of counsel in the Court of Appeals for the Third Circuit, a standard that has since been followed by other federal courts of appeals throughout the country. The Firm’s dedication to pro bono work confers important benefits upon all of our clients. First, our litigation lawyers get earlier opportunities to stand on their own feet, arguing appeals as well as trying cases. Second, because such cases rarely settle, trial and appellate court judges come to know our lawyers, and regularly recognize the Firm, both in courtrooms and public forums, for our service to the courts in taking on pro bono matters.

We view brief-writing — the central element of any appeal — as a matter of prime importance. It is no doubt for that reason that members of our Appellate Practice Group have received the Burton Award (an award presented annually to 20 lawyers in the 500 largest law firms in the United States for excellence in legal writing) on three separate occasions.

In addition to serving as appellate advocates, we also serve as appellate advisors. For example, the members of our appellate practice group regularly apply our analytic and advocacy skills while a case is still in the trial court, advising on summary judgment and other significant motions, sitting in on trials to advise on strategy and preservation of issues, handling post-trial proceedings, and generally advising about how best to position issues for the most effective appellate review. Furthermore, we frequently are engaged to assist other counsel by providing strategic advice, reviewing briefs, and holding moot courts, which include lawyers from both inside and outside the Firm. Through the moot court process, our clients receive strategic advice and ideas for enhancing their presentations.

Our appellate lawyers are nationally recognized in their field. We are members of such prestigious groups as the American Academy of Appellate Lawyers and the American Law Institute. Our Practice Group has been recognized as first in Philadelphia and in Pennsylvania in Appellate Law by Best Lawyers. We serve on appellate rules and practice committees, take leadership roles in bar association groups devoted to appellate practice, write and lecture frequently on appellate issues, and teach appellate practice courses at law schools.

Representative Recent Appellate Cases


  • Benjamin v. Pa. Dep't of Public Welfare, 701 F.3d 938 (3d Cir.), on remand, 2014 U.S. Dist. LEXIS 135309 (M.D.)

After obtaining an appellate decision overturning approval of an earlier class action settlement because the trial court did not permit intervention by a group of objectors, Schnader negotiated a revised settlement requiring the state to enable more than a thousand of Pennsylvania's intellectually disabled residents to remain in their current intermediate-care programs or integrate into community-based care.

  • Hernandez v. United States, et al, 757 F.3d 249 (5th Cir.)

Representing a coalition of civil rights groups as amici, Schnader helped to obtain a victory in a civil rights suit brought by the family of a 15-year old Mexican boy who was shot and killed on Mexican soil by a U.S. Border Patrol agent. The decision clarified the law regarding protections afforded foreign nationals for injuries occurring outside the United States. The Court recently granted a rehearing en banc, and Schnader will continue to assist the organizations through this rehearing.

  • W&W Glass, LLC v. 1113 York Ave. Realty Co. LLC, 113 A.D.3d 563 (N.Y. App. Div.)

The New York Appellate Division not only affirmed a grant of summary judgment in favor of Schnader's client, but also modified the judgment to impose a higher pre- and post-judgment interest rate.

  • Landay v. Rite Aid of Pennsylvania, Inc., 2014 Pa. LEXIS 3086 (Pa.)

In a matter of first impression, obtained a holding that provisions of the Pennsylvania Medical Records Act that regulate charges for obtaining medical records from health care facilities and providers do not apply to Pennsylvania pharmacies.

  • School Dist. of Philadelphia v. Pa. Dep't of Education, 92 A.3d 746 (Pa.)

Schnader obtained a reversal of the lower court's decision forcing the School District of Philadelphia to reimburse a charter school for students enrolled in excess of a limitation in the school's charter. The decision clarified the law on charter school enrollment, an issue critical to the School District because it is financially distressed and enrollment caps have a significant impact on the school district's expenses.

  • William Penn Development Corp. v. School District of Philadelphia, 98 A.3d 1288 (Pa.)

Obtained denial of petition asserting original jurisdiction of Pennsylvania Supreme Court for award of declaratory and injunctive relief regarding the sale of school property under provisions of the Public School Code relating to distressed school districts of first class.

  • In re Estate of McFadden, 2014 Pa. Super. LEXIS 2913 (Pa. Super.)

After successfully obtaining rehearing en banc, Schnader obtained reversal of a decision construing a clause in a testamentary trust to require the trust's termination 21 years after the death of the testator's last-surviving child. The clause was written to comply with the common-law rule against perpetuities and was capable of a construction that permitted a much longer duration, thereby postponing taxation of the estate.


  • Schaefer-Condulmari v. US Airways Group LLC, 547 Fed. Appx. 123 (3d Cir.)

A unanimous Third Circuit panel concluded that a federal district court jury had not disregarded the weight of the evidence when it found in favor of Schnader's client, US Airways, rejecting a pasenger's claim that she had requested a gluten-free meal when booking a Rome-to-Philadelphia flight but was served a vegetarian option instead, resulting in an allergic reaction.

  • In re: SK Foods, LP, 2013 Bankr. LEXIS 5195 (9th Cir. Bankr. App.)

Schnader represented the Chapter 11 Trustee appointed in a bankruptcy case filed by SK Foods, LP, one of approximately 30 companies owned by Scott Salyer, a third generation owner from a prominent Central California family. In this appeal, the Ninth Circuit Bankruptcy Appellate Panel affirmed a judgment determining that the Trustee owned the stock in certain Australian agribusiness companies that the Salyer affiliates asserted belonged to them, resulting in a recovery of approximately $45 million.

  • Norfolk Southern Corp. v. Intermodal Properties, 71 A.3d 830 (N.J.)

In a case of first impression, in which Schnader represented a coalition of railroads as amici curiae, the New Jersey Supreme Court held that railroads are vested with broad condemnation powers under New Jersey law.

  • Nanomedicon, LLC v. Research Foundation of State University of New York, 112 A.D.3d 594 (N.Y. App. Div.)

Schnader represented the drug development company Medicon, Inc. in a dispute over licensing of certain inventions of a faculty member of the State University of New York at Stony Brook. The faculty member commenced a third-party action against Medicon, alleging claims for misappropriation of intellectual property, fraud, tortious interference with prospective business relations, conversion, and unjust enrichment. The trial court granted Medicon's motion to dismiss all claims against it, except the claim alleging fraud. On appeal, the Appellate Division affirmed the dismissals and reversed the trial court's denial of the branch of Medicon's motion seeking dismissal of the fraud claim.

  • In re Barnes Foundation, 80 A.2d 774 (Pa.), denying petition for allowance of appeal from 74 A.3d 129 (Pa. Super.)

In 2013, the Pennsylvania Supreme Court denied review in the last of a series of appellate proceedings arising from the 2004 decision of the Orphans’ Court Division of the Court of Common Pleas of Montgomery County, Pennsylvania, permitting the Barnes Foundation, a nonprofit educational institution that owns one of the world’s most renowned art collections, to remove some of the restrictive terms in its indenture and to relocate its gallery to a newly-constructed facility in downtown Philadelphia, where more members of the general public can view the art and enroll in educational courses. When one of the opponents initially sought to appeal that decision, the firm successfully filed an extraordinary petition in the Supreme Court of Pennsylvania to have the appeal dismissed.  871 A.2d 792 (Pa. 2005).  In early 2011, opponents filed two more petitions to reopen the proceedings, claiming that the Attorney General of Pennsylvania had engaged in misconduct in the proceedings that led to the 2004 decree because he improperly supported the Foundation’s request for relief and did not fully disclose the efforts he undertook in doing so. The firm successfully had both petitions dismissed.  In the litigation that ended in 2013, petitioners again sought to reopen the proceedings on the basis of what they claimed was newly-discovered evidence. The firm obtained dismissal of those petitions, and it obtained affirmance of that decision after one of the petitioners appealed to the Superior Court of Pennsylvania. The petition seeking review of the Superior Court's affirmance by the Supreme Court of Pennsylvania was then denied.

  • In  re Reglan/Metoclopramide Litigation, 81 A.3d 80  (Pa. Super.)

In a holding of first impression, the Superior Court of Pennsylvania concluded that it had collateral-order jurisdiction to hear an appeal from an order declining to dismiss nearly 2,300 product liability cases in a trial court’s mass tort program on grounds of federal preemption. The actions seek to impose liability on manufacturers and distributors of metoclopramide because the drug allegedly causes neurological injuries. After upholding jurisdiction, the Superior Court partially reversed the trial court’s decision and held that some of the claims against the manufacturers and distributors should be dismissed on grounds of federal preemption. The Pennsylvania Supreme Court denied a petition seeking review of the portion of that decision that allowed remaining claims to proceed, and a petition for certiorari is now pending.

  • Snizavich v. Rohm and Haas Co., 83 A.2d 191 (Pa. Super.) 

The Superior Court of Pennsylvania upheld entry of summary judgment in favor of Schnader’s client, Rohm and Haas, in a wrongful death case brought by the estate of a pipefitter who was alleged to have developed brain cancer from working at a Rohm and Haas facility. The trial court held that the plaintiff’s causation expert failed to support his opinion with scientific authority demonstrating a link between the decedent’s illness and the defendant.  The Superior Court used the decision to explain the standards for admission of expert testimony and to distinguish admissible testimony from a proposed expert’s subjective beliefs. The Supreme Court of Pennsylvania denied a petition by the plaintiff for allowance of a further appeal.

  • Yorty v. PJM Interconnection LLC, 79 A.3d 655 (Pa. Super.)

The Superior Court of Pennsylvania directed that judgment be entered in favor of Schnader’s client, PJM Interconnection LLC, the entity that coordinates the flow of electricity on the interstate electric grid in the mid-Atlantic United States, in a suit that sought to impose liability on PJM for injuries suffered by an electrician employee of a utility in PJM's geographic territory while working on his employer's transmission lines. The Superior Court held that PJM’s tariff, which had been approved by the Federal Energy Regulatory Commission (FERC), had the force of federal law and provided immunity to PJM for claims of negligence relating to PJM's performance of its duties. Following FERC precedent construing PJM's tariff, the court declared that other responsibilities, including the safety of utility workers within PJM's territory, were allocated to the utilities that own and physically operate the transmission lines and that employ those workers, and that this federal allocation preempted any state law that would hold PJM liable with respect to such responsibilities.


  • Giles v. Campbell, 698 F.3d 153 (3d Cir.)

Obtained reversal of a trial court’s refusal to permit an estate to be substituted for a deceased defendant against whom an earlier appeal was still pending at the time of death.

  • Foxwoods Casino v. Pennsylvania Gaming Control Board, 34 A.3d 261 (Pa. Cmwlth.), appeal denied, 41 A.3d 852 (Pa.)

An en banc Commonwealth Court panel upheld the decision of Schnader’s client, the Pennsylvania Gaming Control Board, to revoke a $50 million casino license. The Pennsylvania Supreme Court then denied the license holder’s petition for appeal.

  • Citizens Bank v. Cambridge Warren LLC, 48 A.3d 480 (Pa. Super.)

The Superior Court of Pennsylvania vacated confessed judgments entered against Schnader’s client, Cambridge Warren, on the ground that the parties’ agreements did not permit the confessed judgments.

  • In re Estate of Elkins, 32 A.3d 768 (Pa. Super.), appeal denied, 57 A.3d 71 (Pa.)

The en banc Superior Court of Pennsylvania affirmed the Orphans’ Court’s award to Schnader’s client, the Philadelphia Health and Education Corporation (the medical school of Drexel University) of the funds held in a trust established in 1919 by George Elkins for the benefit of Hahnemann Hospital, when Hahnemann was acquired by Tenet Health Systems and the charitable purpose of the Elkins Trust failed.


  • CBS Corp. v. Federal Communications Commission, 663 F.3d 122 (3d Cir.), cert. denied, 132 S. Ct. 267 (2012)

The Third Circuit reaffirmed and readopted its 2008 decision that rejected a finding of indecency and the accompanying $550,000 fine levied against Schnader’s client, CBS Corporation, by the Federal Communications Commission in connection with a "wardrobe malfunction" during the 2004 Super Bowl halftime show.

  • Gates v. Rohm & Haas Co., 655 F3d 255 (3d Cir.)

The Third Circuit affirmed the denial of class certification in an action against Schnader’s client, Rohm & Haas, seeking recovery for medical monitoring and property damage on behalf of the residents of a village in northern Illinois who allegedly were threatened with harm by a chemical released through environmental contamination. The Court held that differences in the scientific evidence applicable to the residents’ claims made a class of plaintiffs seeking medical monitoring and property damage insufficiently cohesive to enable certification.

  • Kovac v. Pennsylvania Turnpike Commission, 444 Fed. Appx. 588 (3d Cir.)

In an employment discrimination action, the Third Circuit affirmed the grant of summary judgment to Schnader’s client, the Pennsylvania Turnpike Commission, finding that "[t]here is simply too little support for a causal chain between [the employee's] alleged protected activities and his termination for a reasonable jury to be able to infer that his termination was a retaliatory act caused by his protected activities."

  • William A. Graham Co. v. Haughey, 646 F.3d 138 (3d Cir.), cert. denied, 132 S. Ct. 456

In a case in which Schnader acted as appellate advisor to copyright counsel, the Court of Appeals resolved an issue of first impression regarding application of the statute of limitations to copyright actions and reversed the district court's order overturning the $30 million jury verdict in favor of Schnader’s client.  568 F.3d 425 (3d Cir.), cert. denied, 130 S. Ct. 503 (2009). After remand, the Court of Appeals resolved the remaining claims in the client’s favor.

  • NavCom Def. Elecs. Inc. v. Gould Elecs. Inc., 2011 Cal. App. Unpub. LEXIS 6150 (Cal. App.)

The California Court of Appeal affirmed a grant of summary judgment to Schnader's client in a contractual dispute between former and current property owners regarding allocation of responsibility for $42 million environmental clean-up and insurance rights.

  • Estate of Fridenberg v. Commonwealth, 33 A.3d 581 (Pa.)

In a trust case involving Schnader's client, Wachovia Bank (now known as Wells Fargo Bank), the Supreme Court of Pennsylvania overturned a 60-year-old decision limiting the commissions from principal thqat a corporate trustee is permitted to receive.

  • Rabatin v. Allied Glove Corp., 24 A.3d 388 (Pa. Super.)

In an asbestos case in which the plaintiff alleged that he contracted mesothelioma from working with turbines installed in a U.S. Steel plant, the Pennsylvania Superior Court affirmed the grant of summary judgment for Schnader’s client, General Electric, on the basis of a construction statute of repose, holding that the turbines designed by GE were permanent fixtures and thus covered by the statute.


  • League of Women Voters of Pennsylvania v.  Cappy, 385 Fed. Appx. 134 (3d Cir.)

In a matter involving judicial pay raises in Pennsylvania, the Third Court affirmed the trial court’s dismissal of the lawsuit against Schnader’s clients on Article III grounds.

  • Wayne Moving and Storage v. School District of Philadelphia, 625 F.3d 148 (3d Cir.)

The Third Circuit reversed the lower court’s entry of summary judgment and award of more than $1 million in an “unjust enrichment” action against Schnader’s client, the School District of Philadelphia, for alleged cost overruns on a project to consolidate and relocate School District offices. On an issue of first impression in the federal courts, the Court held that Section 508 of the Pennsylvania Public School Code barred all claims against the District.

  • In re Interbranch Commission on Juvenile Justice, 605 Pa. 224 (Pa.)

In the aftermath of a scandal relating to juvenile detention in Luzerne County, when Schnader’s client, the Judicial Conduct Board of Pennsylvania (JCB), refused, on grounds of confidentiality and privilege, to provide information relating to the judges implicated in the scandal requested by the Interbranch Commission on Juvenile Justice, the Pennsylvania Supreme Court assumed King’s Bench jurisdiction to address questions of confidentiality of JCB records and investigations. With respect to the majority of the documents, the Supreme Court granted the JCB’s Application.

  • Ranalli v. Rohm and Haas Co., 9 A.3d 631 (Pa.), denying petition for allowance of appeal from 983 A.2d 732 (Pa. Super. 2009)

After the Superior Court granted an interlocutory appeal from the denial of a motion to dismiss a wrongful death action even though the trial court had refused to certify its decision for interlocutory review, the Superior Court reversed the trial court’s holding that the estate of a former company employee could pursue a wrongful death action against her former employer on the ground that statutory defenses to recovery under the Workers’ Compensation Act made the employer’s immunity under that statute inapplicable.

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