IRS-FILING DATES-EQUITABLE TOLLING

May 16th, 2022 by Rieders Travis in Miscellaneous

Boechler, P.C. v. Commissioner of Internal Revenue, 2022 U.S. LEXIS 2095 (S. Ct. April 21, 2022) (Barrett, J.)  The Internal Revenue Service can seize taxpayer property to collect tax debts. Before it does so, however, the taxpayer is typically entitled to a “collection due process hearing”—a proceeding at which the taxpayer can challenge the levy or offer collection alternatives like payment by installment. That hearing may have a happy (or at least relatively happy) ending from the taxpayer’s perspective. But if not, the taxpayer has 30 days to petition the Tax Court for review. Boechler, P.C., the petitioner in this case, missed the deadline by one day. According to the Commissioner of the IRS, this tardiness extinguished Boechler’s opportunity to seek review of the agency’s determination. The Commissioner insists that the deadline is jurisdictional, which means that the Tax Court has no authority to consider late-filed petitions. And even if it is not jurisdictional, the Commissioner argues, the Tax Court lacks the power to accept a tardy filing by applying the doctrine of equitable tolling. We disagree with the Commissioner on both scores. We are not convinced that the possibility…

ANTITRUST-STANDING

May 2nd, 2022 by Rieders Travis in Miscellaneous

Host Int'l, Inc. v. MarketPlace, PHL, LLC, 2022 U.S. App. LEXIS 11358  (3rd Cir. April 27, 2022) (Matey, C.J.)   Host lacked antitrust standing that is not adequately plead in violation of Section 1 of the Sherman Act.  Host’s complaint claims a scheme to gain control over the sale of beverages at PHL by tying the PRA to leases for commercial space.  A successful MarketPlace would enjoy profits at the expense of PHL consumers and others.  What is alleged is unlawful tying and conspiracy, among other things.  The court finds no antitrust injuries.  Host was not excluded from PHL.  It chose to walk away from the table because it did not like the lease terms that MarketPlace offered.  A breakdown in contract negotiation is outside the Sherman Act.  Failure to secure preferred contractual terms is not an antitrust injury.  Refusal to deal can sometimes be an antitrust claim.  Host seeks something novel, recognition and failing to contract for commercial space states a Section 1 claim.  The court did not agree.  Host alleged harm truly only to itself.  While Host’s failure to plead antitrust standing defeats Section 1 claims, there is a…

Miscellaneous

July 23rd, 2019 by Rieders Travis in Miscellaneous

PLEADING-CREDIT CARD-ATTACHMENTS Bank of America v. Ramos, Pa. Civil No. CV-21-0743 (C.P. Lycoming January 18, 2022) (Tira, J.).  This is a credit card collection debt case.  Defendant consumer filed preliminary objections.  Plaintiff failed to attach a copy of defendant’s application and a copy of the credit card agreement.  Plaintiff is not required to attach a signed agreement.  Also, the plaintiff did not alternatively argue that they were not available.  Plaintiff attached to the complaint only one statement covering one month, even though it alleges the account was open and presumably being used for a much longer period of time.  The statement attached only accounts for part of the total amount allegedly due.  Plaintiff must attach a copy of the monthly statement showing how the amount sued for came to be due, including alleged charges and payments. ELECTIONS-STANDING Toth v. Chapman, 2022 U.S. Dist. LEXIS 47108 (M.D. Pa. March 16, 2022).  This three-judge panel in the Middle District concluded that plaintiffs had no standing to challenge the electoral map for 2022 elections.  Pennsylvania did not have a new congressional map for the May 17, 2022 election because Governor Wolf vetoed the…

Attorney-Client Privilege

July 11th, 2019 by Rieders Travis in Miscellaneous

Newsuan vs. Republic Servs., 2019 Pa. Super. LEXIS 613.  Opinion by Stevens, P.J.E.  At issue is whether the court erred in ruling that neither an attorney-client communications privilege nor an attorney work product privilege applied to interviews between counsel for Republic Services and 16 non-party Republic Services laborers identified by Newsuan as potential worksite eyewitnesses. Upjohn Co vs. U.S., 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).  Accordingly, we conclude the particular communications shared between Republic Services’ employees and corporate counsel fall within Republic Services’ scope of attorney-client privilege.  We, therefore, vacate the trial court’s order requiring Republic Services to disclose each such communication.   Given the learned trial court’s appropriate concerns, however, that corporate counsel’s handing of the 16 employees had – whether or not by design – the effect of blocking Newsuan’s access to factual statements pertinent to the accident, we reiterate the clarification in Upjohn that the privilege “only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.”  Id at 395; see also Gillard, 15 A.3d at 52 n. 8 (acknowledging…

VICARIOUS LIABILITY-CORPORATE LAW-PARTICIPATION THEORY-CORPORATE OFFICERS

May 11th, 2018 by Rieders Travis in Miscellaneous

B&R Resources v. Department of Environmental Protection, No. 1234 C.D. 2017 (Pa. Cmwlth. March 15, 2018) Colins, S.J.  This case involves environmental violations.  Under Pennsylvania law, a corporate officer can be liable in tort for his own wrongful conduct on behalf of the corporation, even though the corporation is not a sham and there is no basis for piercing the corporate veil. Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 470 A.2d 86, 89–90 (1983); Francis J. Bernhardt, III, P.C. v. Needleman, 705 A.2d 875, 878 (Pa. Super. 1997); Bank of Landisburg v. Burruss, 362 Pa.Super. 317, 524 A.2d 896, 901 (1987). This basis of individual liability, known as the participation theory, is predicated on the corporate officer's own actions and participation in the corporation's wrongful conduct, rather than the corporation's status and his relationship to the corporation. The participation theory applies to officers of limited liability companies. Commonwealth ex rel. Corbett v. Manson, 903 A.2d 69, 71, 73 (Pa. Cmwlth. 2006). Although it was initially adopted in tort actions, this Court has held that the participation theory applies to statutory violations and is a basis for imposition of individual…

CHARITABLE ORGANIZATIONS-SELF-DEALING

May 9th, 2018 by Rieders Travis in Miscellaneous

Commonwealth v. New Foundation, Inc., et al., No. 36 M.D. 2014 (Pa. Cmwlth. March 1, 2018) Pellegrini, S.J.   The Commonwealth, through its Attorney General, brought an action as parens patriae against New Foundations, Inc. (New Foundations), Firetree, Ltd. (Firetree), and Orange Stones Company (Orange Stone) (collectively, Charities). Each was created as a charitable nonprofit with different but related charitable purposes. New Foundations was incorporated to provide services to families and children, with special emphasis on providing services to fragile infants and children. Firetree was incorporated to provide food and shelter to disadvantaged people. Orange Stone was incorporated to provide housing, care and treatment to halfway house residents. Each provides those services pursuant to contracts with federal, state and local government agencies. The Commonwealth has filed a Motion for Summary Judgment which is primarily based on its claim of illegal self-dealing by the Individual Defendants with the Charities. It contends that because of that self-dealing, the Individual Defendants should be surcharged and held jointly and severally liable for a total of $25,530,742 based on approximately 26 transactions, which they contend were illegal self-dealing. The Charities and Individual Defendants have filed…

IMMUNITY-QUALIFIED IMMUNITY-CONCUSSION INJURY IN SCHOOL SPORTING EVENT

November 6th, 2017 by Rieders Travis in Miscellaneous

Mann v. Palmerton Area School District, No. 16-2821 (3rd Cir. September 21, 2017) Vanaskie, C.J.  In November of 2011 Sheldon Mann, a football player for the Palmerton Area School District, experienced a hard hit during a practice session. While some players thought that Sheldon may have been exhibiting concussion-like symptoms, he was sent back into the practice session by his Coach, Appellee Chris Walkowiak. After being returned to practice, Sheldon suffered another violent collision and was removed from the practice field. He would later be diagnosed with a traumatic brain injury. In bringing a lawsuit against Palmerton Area and Walkowiak, Sheldon's parents asserted that by requiring Sheldon to continue to practice after sustaining the first substantial blow, Walkowiak had violated Sheldon's constitutional right to bodily integrity under a state-created danger theory of liability. Also, Palmerton Area, the Manns alleged, was accountable under Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The District Court ruled in favor of Walkowiak and Palmerton Area on summary judgment, finding that, while there was ample evidence to suggest that Walkowiak was culpable…