Miscellaneous

July 23rd, 2019 by Rieders Travis in Miscellaneous

CONDEMNATION-UNION ORGNIZATION Cedar Point Nursery v. Hassid, 2021 U.S. LEXIS 3394 (June 23, 2021) (Roberts, J.)  Justice Roberts delivered the opinion of the court.  A California regulation grants labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization. Agricultural employers, under California regulation, must allow union organizers onto their property for up to three hours per day, 120 days per year. The question presented is whether the access regulation constitutes a per se physical taking under the Fifth and Fourteenth Amendments and the court found that it did, thus reversing the Ninth Circuit.  Whenever a regulation results in a physical appropriation of property, a per se taking has occurred.  Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owner’s right to exclude.  There was a dissent. ALIEN TORT STATUTE-PRIVATE CAUSE OF ACTION Nestle United States, Inc. v. Doe, 2021 U.S. LEXIS 3120, ___ S. Ct. ___, 2021 WL 2459254 (June 17, 2021) (Thomas, J.)  Justice Thomas announced judgment of the court and delivered the opinion with respect to Parts I and II, and an opinion…

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…