FIDUCIARY DUTY-ATTORNEYS

January 11th, 2023 by Rieders Travis in Miscellaneous

A lawyer whose client relationship ends can take on matters adverse to her former client, as long as she does not have an occasion to use the former client's confidential information in a matter that is related to the work she did for the former client, against that former client. Avco Corporation fails to appreciate this distinction in this case. It claims that its former lawyer, Veronica Saltz Turner, violated her fiduciary duty to Avco when she took on a limited assignment in a case in which Avco had been (and could again have been) a defendant. Avco's entire case rests on its assumption that Ms. Turner must have used its confidential information. Yet, it offers no evidence about what Ms. Turner did in the course of her assignment, about how the work she did related to the work she had done for Avco, or about any confidential information on which Ms. Turner could have relied when she took on that representation. When the Parties moved for summary judgment, it was time for Avco to "put up or shut up"[1] by offering evidence to establish those elements. Because it didn't…

FALSE CLAIMS ACT-RETALIATION

December 8th, 2022 by Rieders Travis in Miscellaneous

United States ex rel. Ascolese v. Shoemaker Constr. Co., 2022 U.S. App. LEXIS 33142 (November 30, 2022) (Restrepo, C.J.)  Appellant Don Ascolese, a compliance officer, challenges the District Court's dismissal of his False Claims Act ("FCA") retaliation claim against his former employer, Appellee McDonough Bolyard Peck ("MBP"), in connection with a qui tam action involving a federally funded public housing construction project for the Philadelphia Housing Authority ("PHA"). In 2009-2010, Congress amended the FCA to expand the scope of protected conduct shielded from retaliation and the type of notice an employer must have of the protected conduct. Here, the District Court denied Ascolese leave to file a Second Amended Complaint, applying both the old and new standards for retaliation under the FCA. This Court has not yet had the opportunity to address the statutory changes to the FCA retaliation standard. We take the occasion to do so now and adopt the new post-amendment standard. We will vacate and remand to the District Court for further proceedings. Employees seeking to report from within an organization might be reluctant to use these qui tam provisions for fear of employer backlash, thus the act also shields whistleblowers from retaliation "because of"…

JURISDICTION-VENUE-FORUM NON CONVENIENS

October 26th, 2022 by Rieders Travis in Miscellaneous

Ritchey v. Rutter's Inc., 2022 Pa. Super. LEXIS 436 (October 20, 2022) (Lazarus, J.)  This was an accident that occurred in Cumberland County.  Plaintiff resides in Mechanicsburg, Cumberland County.  One of the defendants had a business in York, Pennsylvania, and regularly conducts business in Philadelphia.  Plaintiff on the motorcycle was very seriously injured.  The lawsuit was filed in Philadelphia.  It was claimed that the matter be transferred from Philadelphia County to Cumberland or York County for the convenience of the parties because Cumberland County is 100 miles from Philadelphia and virtually all of the witnesses were located in Cumberland County or York.  The court declined the transfer without a hearing.  The court said on appeal that the case should not have been transferred.  The court also mentioned that many of the depositions were taking place by Zoom.  The trial court did not abuse its discretion denying Rutter’s motion to transfer based on forum non conveniens.

PIERCING THE CORPORATE VEIL-CORPORATE LAW

September 26th, 2022 by Rieders Travis in Miscellaneous

PIERCING THE CORPORATE VEIL-CORPORATE LAW- Swink v. Springman and Epic Construction Specialties, Pa. Civil No. CV-22-00086 (C.P. Lycoming August 11, 2022) (Linhardt, J.)  This is a claim under Pennsylvania Unfair Trade Practices and Consumer Protection Law.  Plaintiffs say that Mark Springman used a corporate forum to perpetrate fraud, allowing for the disregarding of the corporate forum.  The court ruled on preliminary objections that enough was sufficiently pled under Mortimer v. McCool, 255 A.3d 261 (Pa. 2021).  What plaintiff had alleged, without much in the way of facts, is the intermingling of corporate affairs with personal affairs.  There was also an allegation that Mark Springman and Epic Construction did not adhere to corporate formalities.  Again, there were general allegations of perpetration of a fraud.  The, court found that sufficient.  Plaintiff noted that they pled multiple specific facts, which the court really did not discuss in any great detail.  Again, there are a lot of allegations of dishonesty, using payment for personal benefit and failing to ensure that enough capital remained in Epic to allow it to conduct business.

FAIR DEBT COLLECTION PRACTICES ACT-PENNSYLVANIA USURY LAWS

September 26th, 2022 by Rieders Travis in Miscellaneous

Lutz v. Portfolio Recovery Assocs., LLC, 2022 U.S. App. LEXIS 26061 (3rd Cir. September 19, 2022) (Phipps, C.J.)  In this case, a consumer, who seeks to represent a putative class, sues a debt collection firm for attempting to collect an outstanding credit-card debt, which had accrued interest at an annual rate of 22.90%. After the consumer had not paid the balance for several months, the bank canceled the card, ceased charging interest, closed the account, and sold it to the debt-collection firm. The firm did not charge interest on the account balance after purchasing it, but the firm did attempt to collect the outstanding balance inclusive of the previously accrued interest.  In his amended complaint, the consumer claimed that the debt collection firm violated the Fair Debt Collection Practices Act by making false statements about the amount of the debt, see 15 U.S.C. § 1692e, and by collecting a debt not permitted by law, see id. § 1692f. Both of those claims rest on the premise that a Pennsylvania statute prohibits the debt collection firm from collecting the interest that had previously accrued at an annual rate greater than 6%. See 7 P.S. § 6203.A; see also 41 P.S. § 201(a). …

STANDING-LEGISLATORS-MUNICIPAL ENTITIES

September 26th, 2022 by Rieders Travis in Miscellaneous

Yaw v. Del. River Basin Comm'n Del. Riverkeeper Network, 2022 U.S. App. LEXIS 25963 (3rd Cir. September 16, 2022) (Fuentes, C.J.)  In February 2021, the Delaware River Basin Commission banned high-volume hydraulic fracturing (commonly known as "fracking") within the Delaware River Basin. The ban reflected the Commission's determination that fracking "poses significant, immediate and long-term risks to the development, conservation, utilization, management, and preservation of the [Basin's] water resources." The ban also codified what had been a "de facto moratorium" on natural gas extraction in the Basin since 2010. Plaintiffs-Appellants—two Pennsylvania state senators, the Pennsylvania Senate Republican Caucus, and several Pennsylvania municipalities—filed this lawsuit challenging the ban. Among other things, they allege that, in enacting the ban, the Commission exceeded its authority under the Delaware River Basin Compact, violated the Takings Clause of the United States Constitution, illegally exercised the power of eminent domain, and violated the Constitution's guarantee of a republican form of government. The District Court did not reach the merits of these claims because it found that Plaintiffs-Appellants lack standing to pursue them in federal court.  Although Plaintiffs-Appellants advance several arguments for why they have standing to challenge the ban, none…

TAXATION-ONLINE SALES, TAXATION OF

September 26th, 2022 by Rieders Travis in Miscellaneous

Online Merchs. Guild v. Hassell, 2022 Pa. Commw. LEXIS 119 (September 9, 2022) (Ceisler, J.).  Before this Court are cross-applications for summary relief filed by C. Daniel Hassell, the Secretary of Revenue (Revenue), and the Online Merchants Guild (Guild), a trade association comprised of online businesses that sell merchandise through Amazon's Fulfillment by Amazon (FBA) Program. The key issue before this Court is whether non-Pennsylvania businesses that sell merchandise through Amazon's FBA Program must collect and remit Pennsylvania sales tax pursuant to Section 237(b)(1) of the Tax Reform Code of 1971 (Tax Code), which provides that "[e]very person maintaining a place of business" in the Commonwealth of Pennsylvania (Commonwealth) must collect and remit Pennsylvania sales tax, or pay personal income tax (PIT) pursuant to Section 302(b) of the Tax Code, which imposes PIT at a rate of 3.75 % upon nonresidents for income derived "from sources within this Commonwealth."  After careful review, we hold that Revenue has failed to provide sufficient evidence that non-Pennsylvania businesses selling merchandise through the FBA Program (FBA Merchants), and whose connections to the Commonwealth were only shown to be limited to the storage of merchandise by Amazon in one of Amazon's Pennsylvania…

FEDERAL TORT CLAIMS ACT-EXHAUSTION REQUIREMENT

September 26th, 2022 by Rieders Travis in Miscellaneous

Knapp v. United States, 2022 U.S. App. LEXIS 23851 (3rd Cir. August 25, 2022) (Greenaway, C.J.)  The Westfall Act contains a “savings clause” for plaintiffs who mistakenly file in the wrong forum.  This provision saves from being barred by the statute of limitations certain timely claims filed in the wrong forum, such as in state or federal court rather than with the appropriate administrative agency.  Thus, the plaintiff’s suit filed in state court and then dismissed for failure to exhaust administrative remedies will be credited with the date that she filed the claim in the state court so long as: (1) the claim in the underlying civil action would have been timely had it been filed in the correct forum; and (2) the claim was presented to the appropriate federal agency within 60 days after dismissal of the civil action.  This is a nonprecedential opinion of the court.  Under the Westfall Savings Clause, whenever an action or proceeding in which the United States is substituted as the party defendant is dismissed for failure first to present a claim to the appropriate agency, such a claim shall be deemed to be…

CLASS ACTION FAIRNESS ACT-DATA BREACH OF DARK WEB

September 16th, 2022 by Rieders Travis in Miscellaneous

- Clemens v. ExecuPharm Inc., 2022 U.S. App. LEXIS 24808 (September 2, 2022) (Greenaway, Jr., C.J.)  In this appeal, Jennifer Clemens asks us to reverse the District Court's dismissal of her complaint seeking equitable and monetary relief in connection with a data breach that resulted in the publication of her sensitive personal information on the Dark Web. Clemens argues that her injury was sufficiently imminent to constitute an injury-in-fact for purposes of standing. We agree. Accordingly, we will vacate the judgment of the District Court and remand for consideration of the merits.  Clemens is a former employee of ExecuPharm, Inc.  Clemens was required to provide her employer with certain sensitive personal and financial information, including her address, social security number, and the like.  ExecuPharm promised to protect the confidentiality and security of this information.  After Clemens left ExecuPharm, the company was hacked, stealing the information.  Clemens took immediate action to mitigate the harm.  Clemens sued ExecuPharm and its parent, seeking to represent herself and others under the Class Action Fairness Act.  The court first addressed the question of standing.  The court also discussed the injury in fact requirement, that it…

FAIR CREDIT REPORTING ACT-CLASS ACTION

September 15th, 2022 by Rieders Travis in Miscellaneous

Kelly v. Realpage Inc., 2022 U.S. App. LEXIS 23683 (3rd Cir. August 24, 2022) (Krause, C.J.)  In late 2018, Appellants Kevin Kelly and Karriem Bey found themselves in just the sort of frustrating predicament the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., was designed to avoid. Their rental applications were denied based on inaccurate consumer reports generated by a consumer reporting agency, RealPage, Inc. RealPage would not correct the reports unless Appellants obtained proof of the error from its sources; and the identity of RealPage's sources was not included in the disclosures to Appellants, despite their requests for their files. So Appellants availed themselves of the remedy Congress provided and sued RealPage, claiming it had violated its obligation under the FCRA to disclose on request "[a]ll information in the consumer's file at the time of the request" and "[t]he sources of th[at] information." 15 U.S.C. § 1681g(a). Appellants sought damages and attorneys' fees not only for themselves but also on behalf of a purported class and subclass.  The class action did not get far. The District Court denied Appellants' motion for class certification on the grounds that Appellants failed to…