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  This is a nonprecedential opinion of the court.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…


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…


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…


September 14th, 2022 by Rieders Travis in Miscellaneous

PPG Indus. v. Jiangsu Tie Mao Glass Co., 2022 U.S. App. LEXIS 24411 (3rd Cir. August 30, 2022) (Jordan, J.)  Under the Uniform Trade Secrets Act, including Pennsylvania's version of that statute, it can be appropriate to measure unjust enrichment from a misappropriated trade secret by looking at development costs that were avoided but would have been incurred if not for the misappropriation. The District Court considered and carefully analyzed such evidence here, and its methodology and conclusion are sound. We will therefore affirm.  The defendant waited too long to challenge the district court’s award of damages. An injunction was granted along with damages.  This was a case of misappropriation of trade secrets.


September 2nd, 2022 by Rieders Travis in Miscellaneous

Milan v. Shenango Presbyterian Seniorcare, 2022 U.S. Dist. LEXIS 151447 (W.D. Pa. August 23, 2022) (Ranjan, J.)  Plaintiff John Milan, by and through his Attorney-in-Fact, Sandra Lee Boyd, first filed this action in the Court of Common Pleas of Lawrence County, Pennsylvania. Plaintiff asserts a state-law negligence claim against Defendants arising from their neglect while Mr. Milan was a resident of Shenango Presbyterian Seniorcare. Plaintiff seeks punitive damages, among other relief. Defendants timely removed this action to federal court claiming that: (1) federal question jurisdiction exists because of complete preemption under the PREP Act (42 U.S.C. § 247d-6d(e)); (2) federal question jurisdiction exists under the Grable doctrine; and (3) federal question jurisdiction exists under the Federal Officer Removal Statute (28 U.S.C. § 1442(a)(1)). Plaintiff opposes these grounds for removal and asks the Court to remand the case back to state court. The Third Circuit recently rejected each of the grounds for removal put forth by Defendants in a substantively similar case. See Maglioli v. Alliance HC Holdings LLC, 16 F.4th 393 (3d Cir. 2021). The Fifth Circuit and Ninth Circuit have also separately addressed these grounds and found that they…


August 15th, 2022 by Rieders Travis in Miscellaneous, Uncategorized

Massaro v. McDonald’s, 2022 Pa. Super. LEXIS 320 (August 2, 2022) (Pellegrini, J.)  Thomas Henry Massaro (Massaro) appeals an order of the Court of Common Pleas of Philadelphia County (trial court) dismissing his claims with prejudice for lack of legal sufficiency. It was alleged by Massaro, a senior citizen, that he was continuously harassed and assaulted by a deranged third-party while mentoring a student in a McDonald's restaurant. His repeated requests for help from the restaurant's staff had gone unheeded for about an hour. The above-captioned Appellees (collectively referred to here as "McDonald's") filed a preliminary objection in the nature of a demurrer, arguing that they could not be held liable for Massaro's injuries as a matter of law because he had remained in the restaurant beyond the point where it was reasonable for him to do so. The trial court sustained McDonald's preliminary objection on what appear to be two not entirely consistent grounds. The trial court first determined that McDonald's did not owe Massaro a duty of care because he had assumed the risk of a known danger in the restaurant. Next, the trial court found that, as a…


July 25th, 2022 by Rieders Travis in Miscellaneous

Biden v. Texas, 2022 U.S. LEXIS 3269 (S. Ct. June 30, 2022) (Roberts, C.J.)  In January 2019, the Department of Homeland Security—under the administration of President Trump—established the Migrant Protection Protocols. That program provided for the return to Mexico of non-Mexican aliens who had been detained attempting to enter the United States illegally from Mexico. On Inauguration Day 2021, the new administration of President Biden announced that the program would be suspended the next day, and later that year sought to terminate it. The District Court and the Court of Appeals, however, held that doing so would violate the Immigration and Nationality Act, concluding that the return policy was mandatory so long as illegal entrants were being released into the United States. The District Court also held that the attempted rescission of the program was inadequately explained in violation of the Administrative Procedure Act. While its appeal was pending, the Government took new action to terminate the policy with a more detailed explanation. But the Court of Appeals held that this new action was not separately reviewable final agency action under the Administrative Procedure Act.  The questions presented are whether the Government’s rescission…


July 25th, 2022 by Rieders Travis in Miscellaneous

West Virginia v. Environmental Protection Agency, 2022 U.S. LEXIS 3268 (S. Ct. June 30, 2022) (Roberts, C.J.)  The Clean Air Act authorizes the Environmental Protection Agency to regulate power plants by setting a “standard of performance” for their emission of certain pollutants into the air. 84 Stat. 1683, 42 U. S. C. §7411(a)(1). That standard may be different for new and existing plants, but in each case it must reflect the “best system of emission reduction” that the Agency has determined to be “adequately demonstrated” for the particular category. §§7411(a)(1), (b)(1), (d). For existing plants, the States then implement that requirement by issuing rules restricting emissions from sources within their borders.  Since passage of the Act 50 years ago, EPA has exercised this authority by setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly. In 2015, however, EPA issued a new rule concluding that the “best system of emission reduction” for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources.  The question before us is whether this broader conception of…


July 25th, 2022 by Rieders Travis in Miscellaneous

Lawson v. Pennsylvania College of Technology, PA No. 21-01134 (C.P. Lycoming June 28, 2022) (Linhardt, J.)  Plaintiffs Michael James Lawson, Jr. ("Michael") and Tara Lawson ("Tara"), son and mother, commenced this case by filing a Class Action Complaint on October 12, 2020 in Philadelphia County. The Complaint seeks reimbursement of money paid to Defendant, a college in Williamsport, for tuition, room, board, and other purposes. The gravamen of the Complaint is that when Defendant switched from in-person learning to remote learning in response to the COVID-19 pandemic, they did not fully refund students sums of money that were paid for, inter alia, in-person lessons, meals, room and board, and activities. In doing so, Plaintiffs allege, Defendant committed numerous breaches of contract and was unjustly enriched. The Complaint contains eight counts, four for breach of contract and four for unjust enrichment, relating to four classes of payment. Counts I and II allege that class members entered into a contract with Defendant, agreeing to pay tuition in exchange for, inter alia, "access to campus facilities, access to campus activities, and live, in-person instruction in a physical classroom." Plaintiffs contend that Defendant retained…


June 28th, 2022 by Rieders Travis in Miscellaneous

Panzarella v. Navient Sols., Inc., 2022 U.S. App. LEXIS 16324 (3rd Cir. June 14, 2022) (Rendell, C.J.)  Elizabeth and Joshua Panzarella ("the Panzarellas") sued Navient Solutions, LLC ("Navient"), claiming that, among other things, Navient violated the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (the "TCPA"). The Panzarellas assert that Navient called their cellphones without their prior express consent using an automatic telephone dialing system ("ATDS") in violation of section 227(b)(1)(A)(iii) of the TCPA. The District Court granted summary judgment for Navient. It concluded that Navient's dialing technology did not qualify as an ATDS under section 227(a)(1) of the TCPA because it viewed a particular component of Navient's dialing technology as separate from its dialing system. As a result, it erred by failing to consider whether Navient's dialing "equipment" as a whole qualified as an ATDS. Id. Even though we do not decide whether Navient's dialing equipment qualified as an ATDS, we find that Navient did not use an ATDS in violation of the TCPA when it called the Panzarellas. Thus, we will affirm the District Court's order on this alternative ground. While the District Court erred in…