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Miscellaneous

July 23rd, 2019 by Rieders Travis in Miscellaneous

AMERICANS WITH DISABILITES ACT-ADHD-NATIONAL BOARD OF MEDICAL EXAMINERS

Ramsay v. National Board of Medical Examiners, 2020 U.S. App. LEXIS 24307 (3rd Cir. July 31, 2020) Shwartz, C.J.  Medical student Jessica Ramsay sought testing accommodations for dyslexia and attention deficit hyperactivity disorder (“ADHD”) from the National Board of Medical Examiners (“the Board”).  The Board denied her requests, and she sued under the Americans with Disabilities Act (“ADA”).  The District Court granted a preliminary injunction, requiring the Board to provide her accommodations.  We will affirm.

RICO-CAUSATION-STANDING

St. Luke’s Health Network, Inc. v. Lancaster General Hospital, 2020 U.S. App. LEXIS 22846 (3rd Cir. July 22, 2020) Greenaway, Jr., C.J.  This case involves a state-run program to reimburse Pennsylvania hospitals for treating indigent patients. Plaintiffs-Appellants are a group of hospitals and their related health care networks that seek civil remedies from Defendants-Appellees, another hospital and hospital system, for violations of the Racketeer Influenced & Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964(c)–(d). Plaintiffs allege that Defendants submitted fraudulent claims for reimbursement, in violation of the wire fraud statute, 18 U.S.C. § 1343, and received an unduly inflated proportion of the available funding. As a result, Plaintiffs claim they were reimbursed an artificially smaller share of funds. The District Court dismissed Plaintiffs’ claims for lack of RICO standing, an additional requirement to Article III standing. It found that Plaintiffs failed to plead sufficient facts to demonstrate that their injury was caused by Defendants’ alleged fraud. Because we find Plaintiffs’ theory of liability adequately alleges proximate causation, we will reverse the District Court and remand for further proceedings consistent with this opinion. In 1998, Pennsylvania and forty-five other states entered into a master settlement agreement with certain cigarette manufacturers. As part of the settlement, the cigarette manufacturers disbursed funding to the states to cover tobaccorelated health care costs. To allocate the funds to hospitals providing care to indigent patients, the Pennsylvania General Assembly enacted the Tobacco Settlement Act in 2001 (the “Act”). P.L. 755, No. 77 (codified at 35 Pa. Stat. § 5701.101 et seq. (2001)). The Supreme Court has also articulated three judicially practicable reasons for requiring directness of injury. First, “indirect injuries make it difficult ‘to ascertain the amount of a plaintiff’s damages attributable to the violation, as distinct from other, independent factors.’” In re Avandia Mktg., 804 F.3d 633, 642 (3d Cir. 2015) (quoting Holmes, 503 U.S. at 269). Second, and relatedly, indirect injuries risk double recovery so the “courts would have to adopt complicated rules apportioning damages to guard against this risk.” Id. Third, directly injured victims can be counted on and are best positioned to “vindicate the law as private attorneys general,” so there is no need to extend civil RICO’s private right of action to those whose injuries are more remote. Holmes, 503 U.S. at 269–70. To demonstrate “some direct relation between the injury asserted and the injurious conduct alleged,” the manipulation alleged must not be “purely contingent” on another event or action. Id. at 269, 271. Even though a plaintiff is not required to claim first-party reliance on a defendant’s purported misrepresentation, Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 657–58 (2008), the cause of an injury that is “entirely distinct from the alleged RICO violation” may be too attenuated to meet the proximate causation requirement, Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 458 (2006). Relatedly, a more direct victim of the purported violation or independent, intervening factors may also break the chain of causation. See Hemi Grp., 559 U.S. at 15; Anza, 547 U.S. at 458. Applying these principles to the present case, we conclude that Plaintiffs have adequately stated that Defendants’ alleged misrepresentation proximately caused their injury.

TELEPHONE CONSUMER PROTECTION ACT OF 1991-ROBOCALLS-POLITICAL AND NONPROFIT ORGANIZATIONS

Barr v. American Association of Political Consultants, 2020 U.S. LEXIS 3544 (July 6, 2020) Kavanaugh, J. and Gorsuch, J. JUSTICE KAVANAUGH announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and JUSTICE ALITO join, and in which JUSTICE THOMAS joins as to Parts I and II. 

Americans passionately disagree about many things. But they are largely united in their disdain for robocalls. The Federal Government receives a staggering number of complaints about robocalls—3.7 million complaints in 2019 alone. The States likewise field a constant barrage of complaints. 

For nearly 30 years, the people’s representatives in Congress have been fighting back. As relevant here, the Telephone Consumer Protection Act of 1991, known as the TCPA, generally prohibits robocalls to cell phones and home phones. But a 2015 amendment to the TCPA allows robocalls that are made to collect debts owed to or guaranteed by the Federal Government, including robocalls made to collect many student loan and mortgage debts. 

This case concerns robocalls to cell phones. Plaintiffs in this case are political and nonprofit organizations that want to make political robocalls to cell phones. Invoking the First Amendment, they argue that the 2015 government-debt exception unconstitutionally favors debt-collection speech over political and other speech. As relief from that unconstitutional law, they urge us to invalidate the entire 1991 robocall restriction, rather than simply invalidating the 2015 government-debt exception. 

Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment. See infra, at 6–9; post, at 1–2 (SOTOMAYOR, J., concurring in judgment); post, at 1, 3 (GORSUCH, J., concurring in judgment in part and dissenting in part). Applying traditional severability principles, seven Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute. See infra, at 10–25; post, at 2 (SOTOMAYOR, J., concurring in judgment); post, at 11–12 (BREYER, J., concurring in judgment with respect to severability and dissenting in part). As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech. The judgment of the U. S. Court of Appeals for the Fourth Circuit is affirmed.

Plaintiffs in this case are the American Association of Political Consultants and three other organizations that participate in the political system. Plaintiffs and their members make calls to citizens to discuss candidates and issues, solicit donations, conduct polls, and get out the vote. Plaintiffs believe that their political outreach would be more effective and efficient if they could make robocalls to cell phones.3 But because plaintiffs are not in the business of collecting government debt, §227(b)(1)(A)(iii) prohibits them from making those robocalls.

In short, the robocall restriction with the governmentdebt exception is content-based. Under the Court’s precedents, a “law that is content based” is “subject to strict scrutiny.” Reed, 576 U. S., at 165. The Government concedes that it cannot satisfy strict scrutiny to justify the government-debt exception. We agree. The Government’s stated justification for the government-debt exception is collecting government debt. Although collecting government debt is no doubt a worthy goal, the Government concedes that it has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising, and the like.

Having concluded that the 2015 government-debt exception created an unconstitutional exception to the 1991 robocall restriction, we must decide whether to invalidate the entire 1991 robocall restriction, or instead to invalidate and sever the 2015 government-debt exception. Before we apply ordinary severability principles, we must address plaintiffs’ broader initial argument for why the entire 1991 robocall restriction is unconstitutional.

In sum, the text of the Communications Act’s severability clause requires that the Court sever the 2015 governmentdebt exception from the remainder of the statute. And even if the text of the severability clause did not apply here, the presumption of severability would require that the Court sever the 2015 government-debt exception from the remainder of the statute.

A generally applicable robocall restriction would be permissible under the First Amendment. Extending the robocall restriction to those robocalls raises no First Amendment problem. So the First Amendment does not tell us which way to cure the unequal treatment in this case. Therefore, we apply traditional severability principles. And as we have explained, severing the 2015 government-debt exception cures the unequal treatment and constitutes the proper result under the Court’s traditional severability principles. In short, the correct result in this case is to sever the 2015 government-debt exception and leave in place the longstanding robocall restriction.

In 1991, Congress enacted a general restriction on robocalls to cell phones. In 2015, Congress carved out an exception that allowed robocalls made to collect government debt. In doing so, Congress favored debt-collection speech over plaintiffs’ political speech. We hold that the 2015 government-debt exception added an unconstitutional exception to the law. We cure that constitutional violation by invalidating the 2015 government-debt exception and severing it from the remainder of the statute. The judgment of the U. S. Court of Appeals for the Fourth Circuit is affirmed.

FALSE CLAIMS ACT-OBJECTIVE FALSEHOOD REQUIREMENT

United States ex rel. Druding v. Care, 2020 U.S. App. LEXIS 6795 (March 4, 2020) Greenaway, Jr., C.J.  This case requires us to consider whether and when clinical judgments can be considered “false” in the context of the False Claims Act (“FCA”), 31 U.S.C. §§ 3729–3733 (2009). It is a matter of first impression in this Court. 

Victoria Druding, Linda Coleman, Barbara Bain, and Ronni O’Brien (collectively, “Appellants”), each of whom is a former employee of Appellee Care Alternatives, brought this FCA action alleging that Care Alternatives admitted patients who were ineligible for hospice care and directed its employees to improperly alter those patients’ Medicare certifications to reflect eligibility. In support of their position, Appellants retained an expert. The expert opined in his report that, based on the records of the forty-seven patients he examined, the patients were inappropriately certified for hospice care thirty-five percent of the time.

Care Alternatives’ expert disagreed and testified that a reasonable physician would have found all of the patients reviewed by Appellants’ expert hospice-eligible on each occasion that Appellants’ expert had deemed certification inappropriate. In considering Care Alternatives’ summary judgment motion, the District Court determined that a mere difference of opinion between experts regarding the accuracy of the prognosis was insufficient to create a triable dispute of fact as to the element of falsity. In fact, the District Court required Appellants to instead provide evidence of an objective falsehood. Upon finding Appellants had not adduced such evidence, the District Court granted summary judgment in favor of Care Alternatives. 

Today, we reject the District Court’s objective falsehood requirement for FCA falsity. Since we find that Appellants’ expert testimony created a genuine dispute of material fact as to falsity, we will vacate the judgment and remand to the District Court for further proceedings consistent with this opinion.

ABORTION-REGULATIONS

June Medical Services L.L.C. v. Russo, 2020 U.S. LEXIS 3516 (June 29, 2020) Breyer, J.  

Justice Breyer announced the judgment of the Court and delivered an opinion, in which Justice Ginsburg, Justice Sotomayor, and Justice Kagan join.

In Whole Woman’s Health v. Hellerstedt, 579 U. S. ___, 136 S. Ct. 2292, 195 L. Ed. 2d 665 (2016), we held that “‘[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right’” and are therefore “constitutionally invalid.” Id., at ___, 136 S. Ct. 2292, 195 L. Ed. 2d 665, 685 (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 878, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (plurality opinion); alteration in original). We explained that this standard requires courts independently to review the legislative findings upon which an abortion-related statute rests and to weigh the law’s “asserted benefits against the burdens” it imposes on abortion access. 579 U. S., at ___, 136 S. Ct. 2292, 195 L. Ed. 2d 665, 686 (citing Gonzales v. Carhart, 550 U. S. 124, 165, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007)).

As in Whole Woman’s Health, the substantial obstacle the Act imposes, and the absence of any health-related benefit, led the District Court to conclude that the law imposes an undue burden and is therefore unconstitutional. See U. S. Const., Amdt. 14, §1.

The Court of Appeals agreed with the District Court’s interpretation of the standards we have said apply to regulations on abortion. It thought, however, that the District Court was mistaken on the facts. We disagree. We have examined the extensive record carefully and conclude that it supports the District Court’s findings of fact. Those findings mirror those made in Whole Woman’s Health in every relevant respect and require the same result. We consequently hold that the Louisiana statute is unconstitutional.

COLLEGES AND UNIVERSITIES-DUE PROCESS

Doe v. University of the Sciences, 2020 U.S. App. LEXIS 17123 (3rd Cir. May 29, 2020) Porter, C.J.  The University of the Sciences (“USciences”) is a private college in Philadelphia, Pennsylvania. John Doe, a student at USciences, had completed nearly all the coursework required to earn a degree in biomedical science. Before Doe could finish his degree, two female students accused him of violating USciences’s Sexual Misconduct Policy (the “Policy”). After investigating Doe, USciences concluded that he violated the Policy and expelled him.

Doe filed a lawsuit in the District Court alleging that USciences was improperly motivated by sex when it investigated and enforced the Policy against him. Doe also asserted that USciences breached its contract with him by failing to provide him the fairness promised to students under the Policy. The District Court dismissed Doe’s complaint. 

Doe’s complaint contains plausible allegations supporting both claims. So we will reverse the District Court’s order dismissing Doe’s complaint.

Drawing all reasonable inferences in the light most favorable to Doe, as we must at this stage, it is plausible that, as he alleges, sex was a motivating factor in USciences’s investigation and decision to expel him. Under the Policy, USciences considers itself to have notice of potential sexual misconduct whenever a responsible employee knows or reasonably should know about the misconduct.

We hold that USciences’s contractual promises of “fair” and “equitable” treatment to those accused of sexual misconduct require at least a real, live, and adversarial hearing and the opportunity for the accused student or his or her representative to cross-examine witnesses—including his or her accusers. We do not, however, attempt to prescribe the exact method by which a college or university must implement these procedures.

Basic fairness in the context of sexual-assault investigations requires that students accused of sexual assault receive these procedural protections. Thus, Doe states a plausible claim that, at least as it has been implemented here, the single-investigator model violated the fairness that USciences promises students accused of sexual misconduct.

Doe’s complaint includes enough factual allegations to state a claim for relief under Title IX. Doe also states a plausible claim that USciences breached its contractual obligation to provide him fairness. We will reverse the District Court’s order and remand this case for proceedings consistent with our opinion.

ASBESTOS-FAIR SHARE ACT

Roverano v. John Crane, Inc., 2020 Pa. LEXIS 1035 (February 19, 2020) Mundy, J. In this appeal by allowance, we consider whether the Fair Share Act, 42 Pa.C.S. § 7102, requires a factfinder to apportion liability on a percentage, as opposed to per capita, basis in strict liability asbestos actions. We conclude the Act’s plain language is [J-10A-2019 and J-10B-2019] – 2 consistent with per capita apportionment in asbestos cases, the Act does not specifically preempt Pennsylvania common law favoring per capita apportionment, and percentage apportionment in asbestos cases is impossible of execution. Accordingly, we reverse the Superior Court’s order, which vacated the trial court’s judgment and remanded this case for a new trial to apportion damages on a percentage basis. Additionally, we consider whether the Act requires a factfinder to apportion liability to bankrupt entities that entered into a release with the plaintiff. We conclude that upon appropriate requests and proofs, bankruptcy trusts that are either joined as third-party defendants or that have entered into a release with the plaintiff may be included on the verdict sheet for purposes of liability only. Accordingly, we remand this case to the trial court to consider whether Appellees submitted sufficient requests and proofs to apportion liability to the settled bankruptcy trusts.

We conclude that the Superior Court’s interpretation of the Act as directing the jury to engage in percentage apportionment of liability in strict liability asbestos cases in the same manner it would in a negligence action is flawed.14 Under the Statutory Construction Act, “an implication alone cannot be interpreted as abrogating existing law. The legislature must affirmatively repeal existing law or specifically preempt accepted common law for prior law to be disregarded.” In re Rodriguez, 900 A.2d 341, 344 (Pa. 2003) (quoting Metro. Prop. & Liab. Ins. Co. v. Ins. Comm’r of Commonwealth of Pa., 580 A.2d 300, 302 (Pa. 1990)). Our common law holds that “[i]n strict liability actions, liability s indeed apportioned equally among joint tortfeasors.” Baker, 755 A.2d at 669. This Court has rejected percentage apportionment in strict liability cases because “this tort theory does not contain an element of fault. This is in contrast to negligence actions where liability is allocated among joint tortfeasors according to percentages of comparative fault.” Id. Because strict liability is “liability without fault,” and each defendant is “wholly liable” for the harm, we have concluded “it is improper to introduce concepts of fault in the damage-apportionment process.” Walton, 610 A.2d at 462 (explaining “[i]n our attempts to place inevitable financial burdens on those best positioned to bear them, we have continually protected the injured plaintiffs and held manufacturers responsible for the products they have put into the stream of commerce”). The plain language of the Fair Share Act does not “specifically preempt” our common law holding that damages in strict liability actions must be apportioned equally among defendants.

Additionally, even if the Superior Court’s conclusion regarding the legislature’s intent is considered, in the instant case it would lead to a result impossible of execution. The Statutory Construction Act directs us to presume “[t]hat the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.” 1 Pa.C.S. § 1922(1); see also Hous. Auth. of County of Chester v. Pa. State Civil Serv. Comm’n, 730 A.2d 935, 946 (Pa. 1999) (“The first principle of statutory construction is that courts will not interpret legislative enactments in a manner which imputes absurdity to the legislative enactment”).

Upon review, we conclude that bankruptcy trusts that are joined as third-party defendants or that have entered into a release with the plaintiff may be included on the verdict sheet upon submission of “appropriate requests and proofs.” 42 Pa.C.S. § 7102(a.2). Because the trial court incorrectly excluded all such entities, we must remand for a new trial on apportionment.

Additionally, Section 7102(a.2) permits a factfinder to apportion liability to those asbestos bankruptcy trusts that have entered into releases with the Roveranos, but were not named defendants.  The Roveranos obtained payment from the asbestos bankruptcy trusts of Armstrong World Industries, B&W, Celotex, Fibreboard, OwensCorning, and U.S. Gypsum. See Roveranos’ Br. in Opp’n to Brand’s Mot. for Post-Trial Relief at 35, Ex. K (listing bankruptcy settlements). Under Section 7102(a.2), the question of their liability “shall be transmitted to the trier of fact upon appropriate requests and proofs by any party.” 42 Pa.C.S. § 7102(a.2). Here, Crane, Brand, and Hajoca requested that the trial court include the bankrupt entities on the verdict sheet in their motions in limine. However, the trial court did not evaluate whether the proofs submitted by Crane, Brand, and Hajoca were sufficient to present the question of the bankrupt entities’ liability to the jury under Section 7102(a.2).  Instead, the trial court granted the Roveranos’ motion in limine based on Ottavio and Ball and basic fairness considerations. In doing so, the trial court erred in refusing to apply the Fair Share Act to the motions in limine to include the settled bankruptcy trusts on the verdict sheet. Accordingly, we remand to the trial court for a new trial on apportionment. The trial court may determine, on remand, whether or to what extent it may be appropriate for additional requests and proofs to be submitted, as well as determine the sufficiency of the submissions.

For these reasons, the decision of the Superior Court is reversed in part and affirmed in part. We conclude liability must be apportioned on a per capita basis in strict liability asbestos cases. Further, we conclude the Fair Share Act permits a trial court to transmit to the factfinder, upon appropriate requests and proofs, the question of the liability of both a bankruptcy trust that was joined as an additional defendant and a nonparty bankruptcy trust that has entered into a release with the plaintiff. Accordingly, we remand to the trial court for further proceedings consistent with this opinion.

RELEASE-HOLD HARMLESS CLAUSE

Felecccia, et al. v. Lackawanna College, et al., No. 75 MP 2017 (August 20, 2019).  JUSTICE DOUGHERTY

In this discretionary appeal arising from the dismissal of personal injury claims on summary judgment, we consider whether the Superior Court erred in 1) finding a duty of care and 2) holding a pre-injury waiver signed by student athletes injured while playing football was not enforceable against claims of negligence, gross negligence, and recklessness.  We affirm the Superior Court’s order only to the extent it reversed the trial court’s entry of summary judgment on the claims of gross negligence and recklessness, and we remand to the trial court for further proceedings consistent with this opinion.  Feleccia was injured while attempting to make his first tackle, experiencing a “stinger” in his right shoulder.  Feleccia returned to practice and suffered a traumatic brachial plexus avulsion while making a tackle with his right shoulder.  

The Superior Court articulated a duty not previously recognized by Pennsylvania Courts:  a college has a “duty of care to its intercollegiate student athletes require(ing) the football tryout, . . . and to provide adequate treatment in the event that an intercollegiate student athlete suffer[s] a medical emergency.”  Feleccia, 156 A.3d at 1215, citing Kleinknecht, 989 F.2d at 1369-70).

The Court needed to analyze the Althaus factors which it did not do.  Althaus, ex rel.  Althaus v. Cohen, 756 A.2d 1166(Pa. 2000).  Before recognizing a new duty of care, courts must analyze the relationship between the parties; the social utility of the actors’ conduct; nature of the risk imposed and foreseeability of the harm incurred; consequences of imposing a duty upon the actor; and the overall public interest in the proposed solution.  The Court should not enter into the creation of new common law duties lightly.

Under these circumstances, appellants clearly created an expectation on which the student athletes might reasonably rely – i.e., in the case of injury during an athletic event, they receive treatment from a certified athletic trainer, as clearly outlined in the Consent they were required to sign.  We thus easily conclude appellants undertook a duty to provide treatment by a certified athletic trainer at the March 29, 2010 practice.  We further conclude the record, taken in the light most favorable to appellees, demonstrates the existence of a genuine issue of material fact sufficient to overcome summary judgment regarding whether appellants breached this duty and cause d appellees’ injuries.  Thus, we hold the trial court erred in entering summary judgment in favor of appellants.  As to the exculpatory clause, the caselaw provides “guiding standards” for assessing the enforceability of exculpatory contracts.  See, e.g., Topp Copy, 626 A.22d at 99(1), the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause).

The trial court thus found the Waiver was enforceable and entered summary judgment in favor of the appellants.  We conclude that the Superior Court’s reversal of this holding with respect to appellees’ claims of ordinary negligence was error.  Appellees’ claims of ordinary negligence are barred by the Waiver, their claims of recklessness are not, and the allegations of recklessness will be tested at trial on remand.  Our law is clear that the pre-injury exculpatory contracts purporting to protect a party from liability arising from recklessness are unenforceable on this public policy basis.  The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.”  Id., at 1164, quoting Bloom, 597 A.2d at 679.

Thus, although we have not previously settled on a definitive meaning of the term “gross negligence” as compared to “ordinary negligence” in the civil context, we have recognized there is a difference between the two concepts, and they are distinguished by the degree of deviation from the standard of care.  See also, Pa. Suggested Standard Civil Jury Instructions 13.50 (“Gross negligence is significantly worse than ordinary negligence” requiring proof actor “significantly departed from how a reasonably careful person would act under the circumstances”).  To the extent our courts have used the term, the “general consensus finds gross negligence constitutes conduct more egregious than ordinary negligence but does not rise to the level of intentional indifference to the consequences of one’s acts.”  

Gross negligence has thus been consistently recognized as involving something more than ordinary negligence, and is generally described as “want of even scant care” and an “extreme departure” from ordinary care.

As we have seen, gross negligence does not rise to the level of intentional indifference or “conscious disregard” of risks that defines recklessness, but it is defined as an “extreme departure” from the standard of care, beyond that required to establish ordinary negligence, and is the failure to exercise even “scant care”.  

As such, the same policy concerns that prohibit the application of a waiver in cases of recklessness – i.e., allowing it would incentivize conduct that jeopardizes the signer’s health, safety and welfare to an unacceptable degree requires a similar holding with regard to gross negligence.  Accordingly, we hold the Waiver is not enforceable to preclude liability arising from appellees’ claims of gross negligence, and the allegations supporting such claims should be tested at trial on remand.

We hold appellants had a duty to provide duly licensed athletic trainers for the purpose of rendering treatment to its student athletes participating in athletic events, including the football practice of March 29, 2910, and there is a genuine issue of material fact regarding whether appellants breached this duty.  Moreover, although the Waiver bars recovery for appellees’ damages arising from ordinary negligence, we hold the Waiver does not bar recovery for damages arising from gross negligence or recklessness, and there remain factual questions regarding whether appellants’ conduct constituted gross negligence or recklessness.  Accordingly, we affirm the Superior Court’s order only to the extent it vacated the trial court’s entry of summary judgment on these claims specifically, and we remand this matter to the trial court for further proceedings consistent with this opinion.

PREEMPTION-NUTRIENT MANAGEMENT

Berner v. Montour Twp. Zoning Hearing Board, 2019 Pa. LEXIS 5426 (S. Ct. September 26, 2019) Baer, J.  The Nutrient Management Act (Act), 3 Pa. C.S. §§ 501-522, requires certain agricultural operations to comply with various standards regarding the management of livestock manure, among other “nutrients.”  The Act also contains a provision outlining the manner in which the Act, as well las the regulations and guidelines promulgated pursuant to it, preempt local regulation of nutrient management.  See id.  § 519, infra at page 4.  Ain this appeal, we are tasked with determining whether, and if so, to what extent, the Act preempts local regulation of nutrient management by agricultural operations that are not otherwise subject to the Act’s requirements. We hold that the Act preempts local regulation of agricultural operations not subject to the Act’s requirements to the extent that the local regulation is more stringent than, inconsistent with, or in conflict with those requirements.  Because the Commonwealth Court reached a contrary result, we reverse the order of that court.

FALSE CLAIMS ACT-MEDICARE/MEDICAID-STARK ACT

United States ex rel. Bookwalter, 2019 U.S. App. LEXIS 27937 (3d Cir. September 17, 2019) Bibas, J.  Healthcare spending is a huge chunk of the federal budget. Medicare and Medicaid cost roughly a trillion dollars per year. And with trillions of dollars comes the temptation for fraud. 

Fraud is a particular danger because doctors and hospitals can make lots of money for one another. When doctors refer patients to hospitals for services, the hospitals make money. There is nothing inherently wrong with that. But when hospitals pay their doctors based on the number or value of their referrals, the doctors have incentives to refer more. The potential for abuse is obvious and requires scrutiny. 

The Stark Act and the False Claims Act work together to ensure this scrutiny and safeguard taxpayer funds against abuse. The Stark Act forbids hospitals to bill Medicare for certain services when the hospital has a financial relationship with the doctor who asked for those services, unless an exception applies. And the False Claims Act gives the government and relators a cause of action with which to sue those who violate the Stark Act. 

Here, the relators allege that the defendants have for years been billing Medicare for services referred by their neurosurgeons in violation of the Stark Act. The District Court found that the relators had failed to state a plausible claim and dismissed their suit. 

This appeal revolves around two questions: First, do the relators offer enough facts to plausibly allege that the surgeons’ pay varies with, or takes into account, their referrals? Second, who bears the burden of pleading Stark Act exceptions under the False Claims Act? 

The answer to the first question is yes. The relators’ complaint alleges enough facts to make out their claim. The surgeons’ contracts make it very likely that their pay varies with their referrals. And the relators also make a plausible case that the surgeons’ pay is so high that it must take referrals into account. All these facts are smoke; and where there is smoke, there might be fire. 

The answer to the second question is the defendants. The Stark Act’s exceptions work like affirmative defenses in litigation. The burden of pleading these affirmative defenses lies with the defendant. This is true even under the False Claims Act. And even if that burden lay with the relators, their pleadings meet that burden here. 

We hold that the complaint states plausible violations of both the Stark Act and the False Claims Act. So we will reverse.

Federal Tort Claims Act-Transportation Security Officers-Illegal Detention

Pellegrino v. United States Transportation Security Administration, 2019 U.S. App. LEXIS 26392; _ F.3d _; 2019 WL 4125221 (August 30, 2019) Ambro, C.J. The Federal Government is typically immune from suit. The Federal Tort Claims Act waives the Government’s immunity for certain torts committed by its employees. 28 U.S.C. § 2680(h) does so for specific intentional torts committed by “investigative or law enforcement officers,” which it defines as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” If a federal official fits this definition, plaintiffs may sue for certain intentional torts. Nadine Pellegrino relies on § 2680(h), which we also refer to as the “proviso,” to recover against Transportation Security Officers (TSOs) at the Philadelphia International Airport who allegedly detained her, damaged her property, and fabricated charges against her. The District Court dismissed her case on the ground that TSOs are not “officer[s] of the United States” who “execute searches … for violations of Federal law.” The underlying theme was that the subsection’s waiver of immunity covers only criminal law enforcement officers, and TSOs, though nominally officers, are nothing more than screeners who perform routine, administrative inspections of passengers and property on commercial aircraft. We disagree. The words of the proviso dictate the result here. Because TSOs are “officer[s] of the United States” empowered to “execute searches” for “violations of Federal law,” Pellegrino’s lawsuit may proceed. A divided panel of our Court affirmed the District Court in full (including as to summary judgment on the non-Tort Claims Act claims). See Pellegrino v. U.S. Transp. Sec. Admin., 896 F.3d 207, 209 (3d Cir. 2018). We then granted rehearing en bane to consider whether TSOs are “investigative or law enforcement officer[s]” as defined in the Tort Claims Act. Even the intentional-tort exception has its limits. Under the proviso, the exception does not apply to (and thus the United States may still be sued for) six of the eleven torts – “assault, battery, false imprisonment, false arrest, abuse of process, [and] malicious prosecution” – committed by “investigative or law enforcement officers.” “For the purpose of this subsection, ‘investigative or law enforcement officer’ means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” The question for us is whether TSOs fit this definition. We hold only that TSO screenings are “searches” under the proviso because they are more personal than traditional administrative inspections – they extend to the general public and involve examinations, often intrusive, of an individual’s physical person along with her property. Before concluding, we note the implications of the choice before us. If TSOs are not “investigative or law enforcement officers” under the proviso, then plaintiffs like Pellegrino are left with no avenue for redress. We have already held (and correctly so) that TSOs are not susceptible to an implied right of action under Bivens for alleged constitutional violations, see Vanderklok, 868 F.3d at 209, so a Tort Claims Act action is the only remaining route to recovery. Without recourse under that Act, plaintiffs like Pellegrino will have no remedy when TSOs assault them, wrongfully detain them, or even fabricate criminal charges against them.

Attorney-Client Privilege

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 that the privilege does not protect clients from factual investigations).  Therefore it is beyond reasonable dispute that Newsuan may see ex parte interviews with the 16 potential fact witnesses – to the extent they are not represented by counsel – regarding their factual observations relevant to the incident in question in the same manner as corporate counsel has, and she may therefore seek further discovery of available facts through depositions and interrogatories, as provided in the Pennsylvania Rules of Civil Procedure.   The scope of such acts would include, for example, a description of the conditions and operations of the recycling center – with specific reference to the “tipping floor” area – as the witness remembers them to exist proximate to the time of the incident, and what, if anything, the employee may have observed regarding the incident, the employee may have observed regarding the incident, as these matters are strictly factual, would have been open and apparent to non-defendant employees at the scene – including Newsuan, herself – and, therefore, do not involve confidential information of any kind.  Next, we address Republic Services’ challenge to the trial court’s order directing the production of corporate counsel’s notes and other work product related to his interviews with the 16 employee fact witnesses.  The trial court predicated the order directing production of counsel’s interview notes on the conclusion that the interviews preceded a time when a relevant attorney-client privilege had attached.   We have determined, however, that the particular communications were, and remain, privileged.  With its predicate thus undermined, the court’s attorney work-product order cannot stand.

VICARIOUS LIABILITY-CORPORATION FOR ACTIONS OF BUS DRIVER

Bus accident in which several people were killed. Driver fell asleep at the wheel. The jury assessed 55% of the liability to the bus driver and 45% of the liability to Greyhound on Plaintiffs’ independent liability claim. The jury awarded each Plaintiff $500,000 in punitive damages. The court was correct to leave out evidence of drinking alleged by a truck driver because there was no indication of alcohol or drug consumption at the time of the accident. The standard for admission of alcohol evidence or drug consumption just was not met. Punitive damages were legitimate. The driver was subjectively aware for extended period before the accident that was too fatigued to drive safely and in danger of falling asleep. In terms of liability for Greyhound for punitive damages, they are liable vicariously and not for any independent act on their part. There is no dispute that the bus driver was within the scope of her employment. The punitive damages thus are attributable to Greyhound. Livingston vs. Greyhound Lines, Inc., 2019 Pa. Super. LEXIS 400.

FEDERAL TORT CLAIMS ACT-STATE LAW-TORTIOUS INTERFERENCE WITH EXERCISE OF MINERAL RIGHTS

This case involves a dispute between the owner of four tracts of subsurface property in the Allegheny National Forest (“ANF”)-Duhring Resources Company-and the United States Forest Service-the department of government responsible for managing the surface estate of the ANF. Duhring brought suit under the Federal Tort Claims Act (“FTCA”), seeking damages for the Service’s tortious inference with its ability to exercise its oil, gas, and mineral (“OGM”) rights. In order to have a cause of action under the FTCA, Duhring’s action must be one that Pennsylvania would recognize against a private individual. The District Court held that Pennsylvania does not recognize Duhring’s cause of action, and thus dismissed Duhring’s complaint for lack of jurisdiction. Our reading of Pennsylvania case law in light of an intervening decision from the Pennsylvania Supreme Court leads us to vacate the District Court’s order and remand for further proceedings consistent with this opinion. Duhring urges that the District Court erred in dismissing its complaint in toto. We agree, but we part ways with Duhring as to the extent of the Government’s liability under Pennsylvania law. The resolution of the issues before us requires us to interpret Pennsylvania state law. “When ascertaining Pennsylvania law, the decisions of the Pennsylvania Supreme Court are the authoritative source.” Spence vs. ESAB Grp., Inc., 623 F.3d 212, 216 (3rd Cir. 2010). But in the absence of a controlling decision from the Pennsylvania Supreme Court, we must predict how it would decide the question. See Alpizar-Fa/las vs. Favero, 908 F.3d 910, 914 (3rd Cir. 2018). In doing so, we may look to “decisions to state intermediate appellate courts, of federal courts interpreting that state’s law, and of other state supreme courts that have addressed the issues, as well as to analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.” Spence, 623 F.3d at 216-17 (citation omitted). If the discretionary function exceptions does not apply, then even though Duhring’s claim is actionable under Pennsylvania law, the question remains as to the proper measure of damages. While the relief available is not limited to an injunction, based on the available authorities under Pennsylvania law we predict that damages for this claim are limited to the loss in rental value of the property interest. Duhring claims damages, for the most part, I the nature of profits lost as a result of the interference with Duh ring’s access to its easement. We have held such profits to not be recoverable. While Duhring did not assert a claim for lost rental value, we will allow it to seek those damages on remand. Accordingly, we will vacate the District Court’s order and remand for further proceedings consistent with this opinion. Duhring Res. Co. vs. United States, 2019 U.S. LEXIS 16767.

CONFIDENTIALITY-CRITERIA

The court holds public right of access to pretrial motions of non-discovery nature whether preliminary or dispositive or no exception. It is the rule. This common law right of access is not absolute. There is a strong presumption in favor of access. The court discusses when that presumption is overcome. This case involved the attempt by healthcare plans to unseal documents in connection with a summary judgment. As indicated, there is presumption of access. There is important public right of access. There interests are particularly important in a case such as this one, which implicates the public’s trust in a well-known and (formerly) widely-used drug. By giving insufficient weight to the public’s strong interest in the openness of judicial records, the District Court erred as a matter of law in applying the common law right of access. The District Court also erred by not conducting a document-by-document review, instead analyzing sixty-five disputed documents in a single paragraph contained in a footnote. This collective evaluation of the harm allegedly suffered by GSK falls short of the exacting analysis our precedent requires. The Court remanded for an evaluation based upon the Court Order. The plans and amici have asked us to go further. According to them, the First Amendment right of public access applies to summary judgment records. But, whereas we have extended the common law right of access to summary judgment records, we have yet to do so under the First Amendment right of public access. IN RE: Avandia Marketing, Sales Practices and Products Liability Litigation.

ANTITRUST-STANDING

Justice Kavanaugh delivered the opinion of the court. In 2007, Apple started selling iPhones. The next year, Apple launched the retail App Store, an electronic store where IPhone users can purchase IPhone applications from Apple. Those apps enable IPhone owners to send messages, take photos, watch videos, buy clothes, order food, arrange transportation, purchase concert tickets, donate to charities, and the list goes on. There is an app that has become part of the 21st Century American Lexicon. In this case, however, several consumers contend that Apple charges too much for apps. The consumers argue, in particular, that Apple has monopolized the retail market for the sales of apps and has unlawfully used its monopolistic power to charge consumers higher-than-competitive prices. A claim that a monopolistic retailer (here, Apple) has used its monopoly to overcharge consumers is a classic antitrust claim. But Apple asserts that the consumer-plaintiffs in this case may not sue Apple because they supposedly were not direct purchasers from Apple under our decision in Illinois Brick Co. vs. Illinois, 431 U.S. 720, 745-746 (1977). We disagree. The Plaintiffs’ purchased apps directly from Apple and therefore are direct purchasers under Illinois Brick. At this early pleadings stage of the litigation, we do not assess the merits of the plaintiffs’ antitrust claims against Apple, nor do we consider any other defenses Apple might have. We merely hold that the Illinois Brick direct-purchaser rule does not bar these plaintiffs from suing Apple under the antitrust laws. We affirm the judgment of the U.S. Court of Appeals for the Ninth Circuit. Apple Inc. vs. Pepper, 2019 U.S. LEXIS 3397.

AMERICANS WITH DISABILITIES ACT-“REGARDED AS” THEORY-JURY VERDICT IN CIVIL RIGHTS

Robinson v. First State Cmty. Action Agency, 2019 3rd Cir. LEXIS 9503 (April 1, 2019) Fuentes, J.-Tamra Robinson was told by her manager Karen Garrett that her work performance was so poor that “you either don’t know what you’re doing, or you have a disability, or [you’re] dyslexic.” Taking Garrett’s words seriously, Robinson, who had never before considered the possibility she might have a disability, decided to undergo testing for dyslexia. She sent Garrett an evaluation that concluded that Robinson had symptoms consistent with dyslexia, and requested certain accommodations from the manager of human resources. She was told that any diagnosis she received would not prevent her from performing her work in a satisfactory manner, and she was advised to focus on improving her performance. Weeks later, she was fired. During the litigation in the District Court between Robinson and her former employer, First State Community Action Agency, Robinson acknowledged that she could not prove she was dyslexic. She proceeded on a different theory, that she was perceived or regarded as dyslexic by her employer and was therefore entitled to a reasonable accommodation the same way someone who was dyslexic would have been. While we have previously recognized the validity of a “regarded as” disability case theory in cases arising under the Americans with Disabilities Act, the ADA Amendments Act of 2008 made clear that a “regarded as” plaintiff is not statutorily entitled to accommodation. Despite this, both parties proceeded under the “regarded as” case theory throughout litigation, trial and post-trial briefing. Only now does First State seek to unring the bell and overturn the jury’s verdict because the jury was instructed that the “regarded as” case theory was valid. We hold that First State has waived this argument because of its continued acquiescence to Robinson’s case theory, its encouragement of the adoption of the very jury instruction to which it now objects, and its failure to include this error in its post-trial briefing. We therefore affirm the judgment of the District Court.

FAIR DEBT COLLECTION PRACTICES ACT-DEBT COLLECTOR-ENFORCEMENT OF SECURITY INTERESTS

Obduskey v. McCarthy & Holthus, LLP, 2019 U.S. LEXIS 2090 (March 20, 2019) Breyer, J.  The Fair Debt Collection Practices Act regulates “debt collector[s].” 15 U.S.C. §1692a(6); see 91 Stat. 874, 15 U.S.C. §1692, et. seq. A “debt collector,” the Act says is “any person … in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts.” §1692a(6). This definition, however, goes on to say that “[f]or the purpose of section 1692f(6)” (a separate provision of the Act), “[the] term [debt collector] also includes any person … in any business the principal purpose of which is the enforcement of security interests.” Ibid. The question before us concerns this last sentence. Does it mean that one principally involved in “the enforcement of security interests” is not a debt collector (except “[f]or the purpose of section 1692f(6)”)? If so, numerous other provisions of the Act do not apply. Or does it simply reinforce the fact that those principally involved in the enforcement of security interests are subject to §1692f(6) in addition to the Act’s other provisions? This case involved a law firm proceeding on nonjudicial foreclosure of a home on behalf of Wells Fargo Bank. There are certain requirements for collectors which the Supreme Court of the United States said do not apply here. The court basically said that nonjudicial foreclosure does not invoke the requirements of the Act. 

UNFAIR TRADE PRACTICES & CONSUMER PROTECTION LAW-SUBSURFACE MINERAL RIGHTS-ATTORNEY GENERAL’S ACTION-ANTI-TRUST LAW

Anadarko Petroleum Corp. v. Commonwealth, 2019 Pa. Cmwlth. LEXIS 236 (March 15, 2019) Ceisler, J.-In these combined interlocutory appeals by permission, we address two issues of first impression pertaining to Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (Law or UTPCPL). The first is whether Appellee Commonwealth of Pennsylvania, Office of Attorney General (Attorney General), can bring a cause of action against lessees pursuant to the UTPCPL, due to allegedly wrongful conduct perpetrated by the lessees in the context of leasing subsurface mineral rights from private landowners. The second issue is whether the Attorney General can bring a cause of action against those lessees, pursuant to the UTPCPL, for alleged violations of antitrust law. The Court of Common Pleas of Bradford County (Trial Court) answered both questions in the affirmative; however, after thorough consideration, we affirm in part and reverse in part. We hold that the Attorney General was permitted to file a UTPCPL-based lawsuit against Appellants, but can only pursue antitrust claims through the UTPCPL where the so-called “antitrust” conduct qualifies as “unfair methods of competition” or “unfair or deceptive acts or practices,” as those terms have been either statutorily defined in the UTPCPL or by the Attorney General through the administrative rulemaking process. Thus, in light of the requirement that, in order to sustain a demurrer, “it must appear with certainty that the law will permit no recovery, and any doubt must be resolved in favor of the non-moving part[.]” Christ the King Manor, 911 A.2d at 633. We reverse the Trial Court regarding its decision to overrule Appellants’ demurrers to Count III of the Attorney General’s Second Amended Complaint., but otherwise affirm the Trial Court. Furthermore, we direct Appellants to each file an Answer to the Second Amended Complaint within 20 days of this matter’s record being returned to the Trial Court. 

FAIR AND ACCURATE CREDIT TRANSACTIONS ACT OF 2003-STANDING

Ahmed Kamal v J. Crew Group, Inc.; J. Crew, Inc.; J. Crew Intermediate, LLC; J. Crew International, Inc.; J. Crew Operating Corp.; J. Crew Services, Inc.; Chinos Acquisition Corp.; Chino’s Holdings, Inc., 2019 3rd Cir. 2018 (March 8, 2019) Scirica, J.-Enacted to combat credit card and identity theft, the Fair and Accurate Credit Transactions Act of 203 (FACTA) prohibits anyone who accepts credit or debit cards as payment from printing more than the last five digits of a customer’s credit card number on the receipt. 15 U.S.C. §1681c(g). Plaintiff-Appellant Ahmed Kamal brought this suit after receiving three receipts from Defendants-Appellees J. Crew Group, Inc. (and related entities) that included both the first six and last four digits of his credit card number. The District Court dismissed Kamal’s suit under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing based on its determination that Kamal did not suffer a concrete injury from the alleged violation. We agree, and we will affirm on that issue. We will vacate and remand, however, for the District Court to dismiss Kamal’s complaint without prejudice.

FAIR DEBT COLLECTION PRACTICES ACT-DEBT COLLECTORS-PRINCIPAL PURPOSE

Barbato v. Greystone Alliance, LLC, No. 18-1042 (3d Cir. February 22, 2019) Krause, C.J. The Fair Debt Collection Practices Act (“FDCPA”) protects consumers from abusive, deceptive, or otherwise unfair debt collection practices.  15 U.S.C. § 1692(a). It applies to “debt collectors,” defined alternatively as those engaged “in any business the principal purpose of which is the collection of any debts” and those “who regularly collect[]” debts “owed or due another.” Id. § 1692a(6). This appeal concerns only the first definition and requires us to determine whether an entity that acquires debt for the “purpose of . . . collection” but outsources the actual collection activity qualifies as a “debt collector.” The District Court held that it does, and we agree: an entity that otherwise meets the “principal purpose” definition cannot avoid the dictates of the FDCPA merely by hiring a third party to do its collecting. We therefore will affirm.

CONFLICTS OF LAW-CHOICE OF LAW-FORUM SELECTION CLAUSE-INTENDED THIRD PARTY BENEFICIARY TO THE CONTRACT

In re McGraw-Hill Global Educ. Holdings, LLC, 2018 U.S. App. LEXIS 32931 (3d Cir. November 21, 2018) Smith, C.J.  These consolidated mandamus petitions require us to decide whether two professional photographers bringing separate copyright infringement actions are bound by a forum selection clause in contracts they did not sign. We conclude that the photographers are not bound because they are not intended beneficiaries of the agreements, nor are they closely related parties. Our conclusion means that one District Court got it right, and the other got it wrong. But mandamus is an extraordinary remedy. Because the erring District Court’s mistakes were not clear or indisputable, we decline to issue the writ.

A non-signatory may be bound by a contractual forum selection clause if he is an intended third-party beneficiary to the contract. DuPont, 269 F.3d at 195 (citing Coastal Steel Corp., 709 F.2d at 202–04). The New York Court of Appeals has adopted the Restatement (Second) of Contracts for determining third-party beneficiary status. Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 124 (2d Cir. 2005) (citing Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 485 N.E.2d 208, 212 (N.Y. 1985)).

CONDEMNATION-GAS LINES

Transcon. Gas Pipe Line Co. v. Permanent Easements for 2.14 Acres, 3d Cir. 2018 LESIX 30669 (October 30, 2018) Roth, J. Congress may grant eminent domain power to private companies acting in the public interest. This appeal requires us to determine the limits on Congress’s grant of eminent domain power to private companies building gas lines under the Natural Gas Act (NGA), 15 U.S.C. §717f(h). The NGA gives natural gas companies the power to acquire property by eminent domain, but it provides only for standard eminent domain power, not the type of eminent domain called “quick take” that permits immediate possession. The District Court granted a preliminary injunction to Transcontinental Gas Pipe Line Company, which effectively gave the company immediate possession of certain rights of way owned by appellant landowners. The landowners claim that granting immediate possession violated the constitutional principle of separation of powers because the taking of property by eminent domain is a legislative power and the NGA did not grant “quick take.” We disagree and hold that the District Court’s order did not violate the principle of separation of powers because Transcontinental properly sought and obtained the substantive right to the property before seeking equitable relief. We will therefore affirm. 

PREEMPTION-AIRCRAFT LITIGATION

Jill Sikkelee, Individually and PR for Estate of David Sikkelee, deceased v. Precision Airmotive Corp., et al, 2018, 3rd Cir. (October 25, 2018), Shwartz, J.-David Sikkelee died in a plane crash, and his wife, Plaintiff Jill Sikkelee, brought state-law strict liability and negligence claims against the engine’s manufacturer, AVCO Corporation, and its Textron Lycoming Reciprocating Engine Division (“Lycoming”), among other defendants. Sikkelee alleges that the engine has a design defect. We previously held that Sikkelee’s state-law claims are not barred based on the doctrine of field preemption, but we remanded to allow the District Court to consider whether they are barred under conflict preemption. Sikkelee v. Precision Airmotive Corp. (Sikkelee II), 822 F.3d 680 (3d Cir. 2016), cert. denied, AVCO Corp. v Sikkelee, 137 S. Ct. 495 (2016). The District Court concluded the claims are conflict-preempted and that, even if they were not, Lycoming is entitled to summary judgment on Sikkelee’s strict liability and negligence claims based on Pennsylvania law. Sikkelee v. AVCO Corp. (Sikkelee III), 268 F.Supp. 3d 660 (M.D. Pa. 2017). The Court also revisited an earlier ruling and granted summary judgment in favor of Lycoming on Sikkelee’s claim that Lycoming violated 14 C.F.R. § 21.3 because it failed to notify the Federal Aviation Administration (“FAA”) of the alleged defect. Sikkelee v. AVCO Corp. (Sikkelee IV), No. 4:07-CV-00886, 2017 WL 3310953 (M.D. Pa. Aug. 3, 2017). We conclude that the District Court erred in concluding Sikkelee’s claims are conflict-preempted because Lycoming has not produced clear evidence that the FAA would not have allowed it to change the engine’s design as set forth in the type certificate. The Court also erred in granting Lycoming summary judgment on Sikkelee’s strict liability and negligence claims because there are genuine disputes of material fact concerning, among other things, causation. However, it properly granted summary judgment on her failure-to-notify-the-FAA claim. Thus, we will reverse the Court’s order granting summary judgment on conflict-preemption and state-law grounds, affirm its order granting Lycoming’s motion for reconsideration on the failure-to-notify claim, and remand for further proceedings.

RICO-RACKETEERING ACTIVITY COMMITTED ABROAD

Humphrey v. GlaxoSmithKline PLC, 2018 U.S. App. LEXIS 27443 (September 26, 2018) McKee, J.  Section 1964(c) of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, creates a private right of action for a plaintiff that “is injured in his (or her) business or property” as a result of conduct that is proscribed by the statute. In RJR Nabisco, Inc. v. European Community, the Supreme Court determined that, although a litigant may file a civil suit against parties for racketeering activity committed abroad, § 1964(c)’s private right of action is only available to a litigant that can “allege and prove a domestic injury to its business or property.” In this case of first impression for this court, we must decide whether Plaintiffs pled sufficient facts to establish that they suffered a domestic injury under § 1964(c). For the reasons that follow, we will affirm the District Court’s judgment that they have not. 

UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW-NURSING HOMES-MISLEADING STATEMENTS

Commonwealth v Golden Gate Nat’l Senior Care, LLC, 2018 Supreme Court of PA LEXIS 5018 (September 25, 2018) Donohue, J.

The Office of the Attorney General (“OAG”), on behalf of the Commonwealth, filed suit against more than two dozen nursing homes and their parent companies (collectively, “Appellees), alleging violations of the Unfair Trade Practices and Consumer Protection Law, 73 Pa. C.S. §§ 201-1-201-9.3 (“UTPCPL”), and unjust enrichment. Upon consideration of Appellees’ preliminary objections, the Commonwealth Court dismissed the claims and this appeal followed. For the reasons discussed herein, we find that the dismissal of the UTPCPL claim was improper, but the dismissal of the unjust enrichment claim was proper because the claim was filed prematurely. Accordingly, we reverse the Commonwealth Court’s order and remand for further proceedings. Appellees are individual nursing homes located throughout Pennsylvania as well as their affiliated companies and parent entities. On July 1, 2015, the OAG filed a complaint and petition for injunctive relief in the Commonwealth Court’s original jurisdiction alleging violations of the UTPCPL and unjust enrichment. The complaint named the Parent Companies and fourteen Facilities. Following the filing of preliminary objections, the OAG filed an amended complaint asserting the same claims and naming an additional eleven Facilities as defendants. In conclusion, we hold that the Commonwealth Court erred in determining that the statements upon which the OAG’s UTPCPL claims are based are puffery; that statements and documents other than advertisements cannot serve as the foundation for a UTPCPL claim; that the OAG’s claimant under subsection (4)(xxi) were insufficiently specific; and that the OAG is not entitled to seek restoration under the UTPCPL. As such, we reverse the Commonwealth Court’s dismissal of the claims raised under the UTPCPL. Because the unjust enrichment claim (and attendant attempt to pierce the corporate veil) is premature, we affirm the dismissal of that claim without prejudice for the OAG to raise it, if necessary, at some point in the future. We remand this matter to the Commonwealth Court so that it may proceed in accordance with our decision herein. Order reversed in part and affirmed in part. Case remanded for further proceedings. Chief Justice Saylor and Justices, Baer, Todd, Dougherty, Wecht and Mundy join the opinion. 

FAIR DEBT COLLECTION PRACTICES ACT-THREAT OF REPORT TO INTERNAL REVENUE SERVICE

Schultz v Midland Credit Mgmt., 2018 U.S. App. LEXIS (September 24, 2018), Vanaskie, J.  The question before us in this matter is whether a statement in a debt collection letter to the effect that forgiveness of the debt may be reported to the Internal Revenue Service constitutes a violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et. seq. The District Court concluded that the statement found in dunning letters sent by Appellee Midland Credit Management, Inc., (“Midland”) to Appellants Robert A. Schultz, Jr. and hi wife, Donna (the “Schultzes”) could not constitute a violation of the FDCPA, and dismissed their putative class action complaint. We disagree, and hold that the statement in question may violate the FDCPA. Accordingly we will reverse the dismissal of this action and remand for further proceedings. 

FEDERAL TORT CLAIMS ACT-DISCRETIONARY FUNCTION TEST-INMATE HOUSING ISSUES

Appellant Michael Rinaldi, who at all relevant times was an inmate in custody at United States Penitentiary, Lewisburg (“Lewisburg” or the “Institution”), appeals the District Court’s dismissal of his complaint alleging that the conduct of various personnel violated his constitutional and statutory rights. His appeal requires us to resolve three matters of first impression for our Court: (1) what showing an inmate must make to establish that administrative remedies were not “available” within the meaning of the Prison Litigation Reform Act (“PLRA”); (2) whether the PLRA’s exhaustion requirement is satisfied where a prison administrator elects to resolve a procedurally improper administrative request on the merits; and (3) whether a prison’s housing and cellmate assignments meet the discretionary function exception to the Federal Tort Claims Act’s limited waiver of sovereign immunity. For the reasons that follow, we will affirm the District Court’s dismissal of Rinaldi’s complaint in part and will vacate and remand in part. 

The court found the proper exhaustion in that the constitutional claims can go forward, but it also found that the discretionary right of prison authorities with respect to housing and to the Federal Tort Claims Act would be thrown out. The First Amendment retaliation claim could go forward because it was exhaustion. Administrative remedies are not “available” under the Prisoner Reform Act where a prison official inhibits an inmate from resorting to them through serious threats of retaliation and bodily harm. In that situation, relief is unavailable and exhaustion is unnecessary. 

The court discusses what is required to prove unavailable of a remedy. To defeat a failure-to-exhaust defense, an inmate must show (1) that the threat was sufficiently serious that it would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance, and (2) that the threat actually did deter this particular inmate.

The court vacated and remanded for further proceedings First and Eighth Amendment claims, but affirmed and dismissed under the Federal Tort Claims Act.   

STANDING-ECONOMIC INJURY

In Re: Johnson & Johnson Talcum Powder Products Liability Marketing, Sales Practices and Liability Litigation, Mona Estrada, Appellant, 2018 U.S. Court of Appeals for Third Cir., (September 6, 2018) Smith J.  The question presented in this appeal from a dismissal of a class action is both narrow and novel: Has a plaintiff—who has entirely consumed a product that has functioned for her as expected—suffered an economic injury solely because she now sincerely wishes that she had not purchased that product? We hold that such a plaintiff has not suffered an economic injury sufficient to bring a claim in federal court. More succinctly, buyer’s remorse, without more, is not a cognizable injury under Article III of the United States Constitution. A plaintiff alleging an economic injury as a result of a purchasing decision must do more than simply characterize that purchasing decision as an economic injury. The plaintiff must instead allege facts that would permit a factfinder to determine, without relying on mere conjecture that the plaintiff failed to receive the economic benefit of her bargain. Because the plaintiff here has failed to plead facts, sufficient to establish economic harm, the District Court’s judgment will be affirmed. 

JOINT TORTFEASORS-CONTRIBUTION OF THE DRAM SHOP LAW

Encompass Insurance Co. v Stone Mansion Restaurant, Inc. 2018 U. S. Court of Appeals, Third Dist. (August 22, 2018) Chagares J.  This appeal, which presents issues of statutory interpretation, stems from a tragic automobile crash that killed the intoxicated driver and seriously injured the sole passenger. Encompass Insurance Company (“Encompass”), the liability carrier for the vehicle, settled the passenger’s claims against the driver’s estate and all other possible parties, including Stone Mansion Restaurant Incorporated (“Stone Mansion”) – the restaurant that allegedly overserved the driver. Thereafter, Encompass brought the instant action against Stone Mansion in Pennsylvania state court, seeking contribution under state law. Stone Mansion removed the case to the United States District Court for the Western District of Pennsylvania. Following a dispute over removal, the District Court concluded that the case was properly before it and later dismissed the case pursuant to Federal Rule of Civil Procedure 12(b)(6). Encompass appeals both the decision on the removal and the dismissal. For the reasons stated below, we will affirm in part and reverse in part.

Putting aside the procedural issue, the court held that Encompass has not argued that is entitled to recover in tort against Stone Mansion. In conclusion, Encompass does not argue that it is entitled to recovery in tort against Stone Mansion. Such a claim would likely fail pursuant to § 4-497’s limiting provision. Instead Encompass presents a distinct claim for contribution under the UCATA. Pennsylvania’s Dram Shop law does not prohibit this matter of recovery. Therefore, the District Court erred by dismissing the case. For the foregoing reasons, we will affirm in part and reverse in part.

GAS-MARCELLUS SHALE-REGULATIONS

Marcellus Shale Coal v Dep’t of Envtl. Prot. of Pa., 2018 LEXIS 437, Cmwlth Court of PA (August 23, 2018) Wojcik J.  Before this Court is the Marcellus Shale Coalition’s (Coalition) Application for Partial Summary Relief (Application) seeking summary relief on Count I of its Petition for Review in the Nature of a Complaint Seeking Declaratory and Injunctive Relief (Petition). In Count I, the Coalition challenges recently promulgated regulations related to unconventional oil and gas well operations contained in Title 25, Chapter 78a of the Pennsylvania Administrative Code (Chapter 78a Regulations), namely Section 78a15(f) and (g) and certain definitions in Section 78a.1 pertaining to public resources. 25 Pa. Code §78a.15(f)-(g), 78a.1 (referred to generally as the Public Resource Regulations). For the reasons that follow, we grant the Application in part with respect to the challenged definitions, as well as Section 78a.15(g)’s mandate regarding consideration of comments and recommendations submitted by municipalities, which we declare as void and unenforceable, and deny the Application in all other respects.

FAIR DEBT COLLECTION PRACTICES ACT-“TRUE NAME” PROVISION

Levins v Healthcare Revenue Recovery Group, LLC, 2018 U.S. Court of Appeals, Third Cir., LEXIS 23577 (August 22, 2018) Jordan J.  In this appeal, we interpret three provisions of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p. Elaine and William Levins allege that Healthcare Revenue Recovery Group, LLC (“HRRG”) violated §§ 1692e(4), 1692d(6), and 1692e(10) by leaving telephone voice messages that did not use its true name, did not meaningfully disclose its identity, and used false representations and deceptive means to collect or attempt to collect a debt or obtain information about a consumer. In particular, the Levinses complain that voicemail messages in which HRRG went by the name of “ARS” were insufficient to identify it as HRRG or even as “ARS ACCOUNT RESOLUTION SERVICES,” which is an alternative business name used by HRRG. HRRG moved to dismiss the complaint, as amended, for failure to state a claim, and the District Court granted the motion. We conclude that the Levinses have stated a plausible claim that HRRG violated § 1692e(14)’s “true name” provision, but they have not stated plausible claims under §§ 1692d(6) or 1692e(10). Accordingly, we will vacate in part and affirm in part the dismissal of their case. Here, at this early stage in the case, when we must take the allegations in the complaint as true, the Levinses have plausibly alleged facts suggesting that “ARS” is not the “true name” of HRRG. Here, the voicemail messages would not mislead the least sophisticated debtor because the messages gave some identifying information about the caller, stated that the call was from a debt collector, and stated that the call was an attempt to collect a debt. Even though the Levinses have sufficiently alleged that “ARS is, as already discussed, less than a “true name” as defined by § 1692e(14), they have not plausibly alleged that using the abbreviation “ARS,” which is associated with a registered identity of HRRG, amounts to a lack of meaningful disclosure of the sort forbidden by § 1692d(6). For the foregoing reasons, we will vacate the District Court’s dismissal of the § 1692e(14) claim and remand for further proceedings. We will affirm, however, the District.

FAIR DEBT COLLECTION PRACTICES ACT-DEBT COLLECTORS-PRINCIPLE PURPOSE

James Tepper, Allison Tepper v Amos Financial, LLC, 2018 U.S. Court of Appeals, Third Cir. (August 7, 2018) Ambro J.  The Fair Debt Collection Practices Act (the “FDCPA” or “Act”), 15 U.S.C. § 1692 et seq, regulates their efforts. Under it, debt collectors are prohibited from engaging in deceptive, abusive or otherwise unfair practices to collect debts. When these practices occur, the Act gives debtors a private right of action to seek recourse, with the possibility of receiving statutory damages. The Act does not apply, however, to all entities who collect debts; only those whose principal purpose is the collection of any debts, and those who regularly collect debts owed another are subject to its proscriptions. Those entities whose principal business is to collect the defaulted debts they purchase seek to avoid the Act’s reach. We believe such an entity is what it is—debt collector. If so, the Act applies. Amos argued that it may be a debt collector, but that it is exempt from the Act because it is the entity to whom the debt is owed, not a debt collector per se. The district court held that the debt collection attempts with the plaintiff crossed the lines prescribed by the FDCPA and must accept the penalties for bad behavior. The lower court’s Opinion is affirmed that defendant was a debt collector under the “principal purposes” definition. Instead, we follow the plain text of the statute: an entity whose principal purpose of business is the collection of any debts is a debt collector regardless whether the entity owns the debts it collects.  

REHABILITATION ACT-SERVICE ANIMALS

Traci Berardelli, Joseph Berardelli, on behalf of their daughter, M.B., a minor, and individually on their own behalf v Allied Services Institute of Rehabilitation Medicine, 2017 U.S. Court of Appeals, Third Dist., (August 14, 2018) Krause J.  For decades, the Rehabilitation Act (RA) and its progeny, the Americans with Disabilities Act (ADA), have served as twin pillars of federal disability discrimination law. Both statutes secure the rights of individuals with disabilities to independence and full inclusion in American society and, unsurprisingly, have been constant companions in our case law as it has developed to effect those rights. The RA assures “meaningful access” to federally funded programs, Alexander v Choate, 469 U.S. 287, 301 (1985), on the one hand, and the ADA provides for “full and equal employment” of public accommodations, 42 U.S.C. § 12182(a), on the other, to people with disabilities. When necessary to realize that access and enjoyment, the statutes require “reasonable accommodations,” Choate, 469 U.S. at 301, or “reasonable modifications,” 42 U.S.C. § 12182(b)(2)(A)(ii), to be made by actors within the statutes’ reach. The Department of Justice (DOJ) has promulgated regulations interpreting the ADA’s “reasonable modification” requirement to mean that covered actors generally must “modify policies, practices, or procedures to permit the use of a service animal by an individual with disability,” 28 C.F.R. § 36.302(c)(1); see also id. § 35.136(a), and must “permit[ ] [such individuals] to be accompanied by their service animals in all areas of [the covered actor’s facilities] where…program participants…are allowed to go,” id. §36.302(c)(7); see also id. §35.136(g). The question presented by this case is one of first impression in the Courts of Appeals; whether, in the absence of a similar regulation specifically interpreting the RA, its mandate of “reasonable accommodations” under the ADA, generally requires that individuals with disabilities be permitted to be accompanied by their service animals and, thus, renders such requested accommodations per se reasonable in the ordinary course.

For the reason set forth below, we hold that it does and that the District Court’s contrary jury instructions constitute reversible error. Accordingly, we will vacate the judgment and remand for further proceedings consistent with this opinion.

AMERICANS WITH DISABILITY ACT-FALSE ACCUSATIONS WITH A CRIME

Craig A. Geness v Jason Cox, U.S. Ct of Appeals, Third Distr., 2018 (August 28, 2018) Smith J. In a tragic case that suggests systemic deficiencies at the juncture of Pennsylvania’s criminal justice and mental health systems, the Appellant in this case—an adult with mental retardation and other  mental illness—was charged for a crime that may not have occurred and was then detained for nearly a decade awaiting trial, even though it was determined early in the proceedings that he was incompetent and unlikely to improve. With fault shared among the Uniontown Police Department , the Fayette County Public Defender’s Office and later, private counsel, the Fayette County District Attorney’s Office, the Court of Common Pleas of Fayette County, and the mental health infrastructure of Pennsylvania, Craig Geness’s criminal case was inadequately investigated, inadequately defended, and inadequately monitored and supervised as Geness languished in various detention facilities. All the while, his petition for habeas relief remained pending. And when a hearing was finally held on that petition, the District Attorney’s Office  voluntarily dismissed the charges out of concern for its “ability to meet its burden of proof, even if the defendant was competent.” This appeal arises from Geness’s subsequent lawsuit against the arresting officer, then-Detective Jason Cox, and various other defendants, claiming they violated his civil rights through reckless investigation, false arrest, false imprisonment and malicious prosecution in violation of 42 U.S.C. §1983, and that they denied him due process and violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12131. But at this point—nearly a dozen years after Geness’s arrest and with the performance of his various counsel marred by inexcusable delays and dilatory discovery efforts—most avenues of relief are now closed to him. For the reasons explained below, we will affirm the District Court’s dismissal of Geness’s § 1983 claims but will reverse its denial of leave for Geness to amended his complaint and will remand for him to reinstitute his due process and ADA claims against the Commonwealth.

Statute of limitations barred 1983 claim. The court did permit amendment of claims of particularly the ADA and due process claims. The court was obviously very upset in how badly this individual had been handled by the system. 

In view of this authority, the constitutional claims Geness seeks to bring against the Commonwealth as to both the length of his pretrial imprisonment and the length of his civil commitment would not be futile. After his first psychological evaluation indicated that he “remain[s] incompetent to stand trial,” Geness was incarcerated for an additional three years before civil commitment proceedings and a second examination were even requested. And once institutionalized, Geness was left to languish for another four years before he was granted a hearing on his habeas petition and the charges against him were dismissed. There is no question this exceeded the “reasonable period of time necessary” under Jackson to ascertain whether there was a substantial probability Geness would attain competency in the foreseeable future. In sum, neither futility nor delay justified the denial of leave for Geness to amend his complaint to reinstate his ADA and due process claims against the Commonwealth. 

Absurd as it may seem that Geness was detained for nine years for a crime that may not have occurred and now cannot pursue relief under § 1983, multipoint failures in the criminal justice system have brought us to this juncture. Those failures point up the essential role of each player in that system—whether law enforcement officer, prison official, mental health professional, defense counsel, prosecutor, or judge—and the devastating consequences that can follow when one or more of them fails to diligently safeguard the civil rights with which they are entrusted. With the complexities at the intersection of the criminal justice and mental health systems, those risks are only compounded and require vigilance at a systemic level. As for the case before us, we will reverse the District Court’s denial of leave to amend, remanding for Geness to reinstate his claim against the Commonwealth, and we will affirm the District Court in all other respects.

JOINT TORTFEASORS-FAIR SHARE ACT-ASBESTOS CLAIMS

Roverano v John Crane, Inc., 2017 Superior Ct of PA, LEXIS 1110 (December 28, 2017).  This per curium decision addresses factual causes instructions, saying that factual cause is proper in an asbestos case. Unreasonably dangerous need not appear on the verdict slip because that was not an issue in the case. However, what the Opinion really deals with is the Fair Share Act that says it does apply to products  liability cases including asbestos cases. The case through the entire legislative history in great detail. Liability  must be apportioned between two strictly liable tortfeasors not on a per capita basis but on the degree that the judge or jury found causally responsible, but to the degree that a judge or jury found causally responsible. The jury under remand must be permitted to consider evidence of any settlements with bankrupt entities in connection with the apportionment of liability. The question as to liability with respect to one who has entered into a release with the plaintiff and was not a party shall be transmitted to the trier of fact. Liability and strict liability cases must be allocated in the same way as any other tort case and not on a per capita basis. The case will be remanded for new trial to apportion the jury verdicts among appellants, the non-bankrupt settling defendants (excluding those where the jury determined that they were not tortfeasors) and the bankrupt settling defendants.   

LANDOWNERS LIABILITY-SLIP AND FALL-LANDLORD LIABILITY

Cholewka v Gelso, 2018, Superior Ct. LEXIS 847 (July 27, 2018) Orr, J.  This case involves a property leased to the Cholewkas as well as to the owner’s daughter and her boyfriend. All four tenants signed the lease to accept the property “as is.” An asphalt driveway was added. One of the tenants, Dawn Cholewka, was looking for her dog and went without a flashlight when she slipped on the newly added asphalt driveway, which actually had reduced a lip height, fell. She sued the owner of the property. The Cholewkas, along with the other tenants, all qualified as possessors of the land within a Restatement (2d) Tort. All signatories of the lease agreement were possessors of the property at the time of Dawn’s injuries. The other tenants were not landlords out of possession, rather they were co-possessors of the property along with Cholewka. There is no case in which one possessor of land owed a duty of care to another possessor of land on a premises liability principles. The lip created by the asphalt was unreasonable in light of the property constructed parking pad and the Cholewkas’ knowledge of the conditions at the time. Further, the tenant owners Neidkowski, could not have foreseen Dawn’s ill-advised nighttime search for her dog in the poorly lit area of the lip without the aid of a flashlight. The owner-occupants not engaged in conduct which reasonably created an unforeseeable risk of harm. Dawn knew there was no lighting on the side of the house, but proceeded to walk there without a flashlight at night. Creation of the pad did create not create an unforeseeable risk. The court below properly determined that there was no duty pursuant to multi-tenant theory. The lease agreement listed all four tenants as occupied one residence. This was not a multi-family house, but rather one house in which people split up the rent as they wished and occupy whatever parts they agree to. The Cholewkas rented the entire property as-is, which necessarily included the asphalt driveway. The tenants were responsible for all repair and maintenance. There was no subject matter jurisdiction to enter summary judgment in favor, however, of the defendant after a notice of death was filed where no personal representative was substituted in his place.

FEDERAL TORT CLAIMS ACT-STATUTE OF LIMITATIONS-SIX MONTH NOTICE

Staci Sconiers v U.S. of America, No. 17-3440 U.S. Court of Appeals Third Circuit (July 24, 2018), Greenaway, Jr.  Staci Sconiers asks us to reinstate her tort claim against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§1346(b), 2671-80 (2012), because she presented her claim to the United States Postal Service (USPS) within two years, as required by 28 U.S.C. §2401(b ). We decline to do so because we hold that the FTCA additionally requires claimants to file their claims within six months of an agency’s written denial, which Sconiers failed to do. We will affirm the District Court. The U.S. moved before the District Court to be substituted in place of USPS and Johnson, as well as for summary judgment. It contended that Sconier’s failure to file her lawsuit within six months of the mailing of the denial of her administrative claim rendered her lawsuit untimely. Sconiers did not contest the substitution of the U.S., but urged the District Court to equitably toll the statute of limitations. At issue in this case is whether the FTCA requires – as the Government argues – that a claimant file both a claim with the federal agency within two years of the tort and a suit within six months of the agency’s denial, or – as Sconiers contends based on the provision’s use of the work “or” – that a plaintiff satisfied the limitations period by meeting just one of the two conditions. In considering this matter, we note that “[b]ecause the Federal Tort Claims Act constitutes a waiver of sovereign immunity, the Act’s established procedures have  been strictly construed.” White-Squire, 592 F.3d at 456 (quoting Livera v First Nat’l State Bank of N.J., 879 F.2d 1186, 1194 (3d Cir. 1989)). We agree with the Government and hold that both conditions must be satisfied in order for a plaintiff to properly bring a claim under the FTCA. Our holding today is consistent with our strict construction of the FTCA and with how we have described the FTCA’s filing requirements in the past. For the aforementioned reasons, we will affirm the judgment of the District Court.

RELIGIOUS FREEDOM RESTORATION ACT-JURISDICTION

Adorers of the Blood of Christ v Ferc. 2018, U.S. Court of Appeals Third Cir., LEXIS 20656 (July 25, 2018) Greenaway, Jr.-Roman Catholic group objects to use of land in connection with gas pipeline based on their religious views of preserving the earth. An action under the RFRA invoking the court’s general federal question jurisdiction does not abrogate or provide an exception to a specific and exclusive jurisdictional provision prescribing a particular procedure for judicial review of an agency’s action. Here the religious order did not properly raise the objection before FERC brought a suit in court. They cannot do that relying upon religious freedom. 

Gas Drilling – Fracking – Interstate Compact

GAS DRILLING-FRACKING-INTERSTATE COMPACT- Wayne Land and Mineral Group v. Delaware River Basin Commission, No. 17-1800 (3d Cir. July 3, 2018) Jordan, C.J.  Wayne Land and Mineral Group, LLC, a company that wants to obtain natural gas by fracking reserves in Pennsylvania,1 appeals from the dismissal of its complaint for failure to state a claim. Wayne sought a ruling in the District Court under the Declaratory Judgment Act that an interstate compact does not give the Delaware River Basin Commission authority to review Wayne’s proposed fracking activities. The Commission argued in response that Wayne’s claim was properly dismissed as unripe, that Wayne lacks standing, that there has been no final agency action, and that Wayne has not exhausted available administrative remedies. The District Court rejected those arguments but nevertheless denied Wayne’s request for relief and dismissed the case under Federal Rule of Civil Procedure 12(b)(6), after determining that Wayne’s proposed activities constituted a “project” subject to the Commission’s oversight, according to the unambiguous terms of the interstate compact. Because we conclude that the meaning of the word “project” as used in the compact is ambiguous, we will vacate the order of dismissal and remand the case for fact-finding on the intent of the compact’s drafters.

VICARIOUS LIABILITY-PIERCING THE CORPORATE VEIL-ALTER EGO-SANCTIONS

Clientron v. Devon IT, Inc., No. 16-3432, E.D. Pa. No. 2-13-cv-05634 (3d Cir. July 5, 2018) Greenaway, Jr., C.J.  In this unusual case, Appellant Clientron Corp. is actually the prevailing party below and holds a judgment against Appellee Devon IT, Inc. worth over $7 million. Clientron claims, however, that it is unable to recover because Devon IT is insolvent. Before the District Court and now also on appeal, Clientron has argued that Devon IT’s corporate veil should be pierced, and that the two shareholders who own Devon IT as tenants by the entirety, Appellees John Bennett and Nance DiRocco, should be held personally liable for the entire judgment. Although the District Court declined to disregard Devon IT’s corporate form on the merits, it held Bennett—but not DiRocco—personally liable for a portion of the judgment as a sanction for egregious discovery misconduct. According to Clientron, this decision to sanction only Bennett was insufficient because he, like Devon IT, is judgment-proof. Clientron contends that it can recover only if DiRocco is held personally liable for the judgment as well. As we will explain below, we hold that, irrespective of whether the imposed sanction was sufficient to cure the prejudice suffered by Clientron, the District Court committed legal error in piercing Devon IT’s veil as a sanction to reach Bennett but not DiRocco, and in holding Bennett personally liable for only part of the judgment. We will therefore vacate the District Court’s order sanctioning Bennett and remand so that the District Court may impose a new sanction.

The evidence must ultimately show that the corporation was “nothing more than a sham used to disguise [the shareholders’] use of its assets for [their] own benefit in fraud of its creditors.” Blatstein, 192 F.3d at 100 (quoting Kaplan, 19 F.3d at 1521).

Clientron next argues that even if it failed to meet its burden on the merits of the Pennsylvania alter ego claim, the District Court should have pierced the veil as to both Bennett and DiRocco as a discovery sanction. It contends that both Bennett and DiRocco should be held personally liable because DiRocco’s personal conduct was sanctionable, and because there is no legal basis for distinguishing between shareholders when piercing the corporate veil.

We are forced to conclude that the court’s veil piercing remedy was grounded in federal law. Our task here on appeal, then, is to determine whether Rule 37 authorizes the fashioning of such a remedy. We conclude that it does not and will therefore vacate the District Court’s sanctioning order.

Distinguishing between shareholders for alter ego purposes is especially problematic where, as here, the corporation is owned jointly by two tenants by the entirety. Applying Pennsylvania law, we have previously stated that tenancies by the entirety are “based on the legal fiction that husband and wife are one person.” In re Brannon, 476 F.3d 170, 173 (3d Cir. 2007). The ownership form’s “essential characteristic” is that each spouse holds “the whole or the entirety,” and not a “share, moiety or divisible part.” Id. (quoting In re Gallagher’s Estate, 43 A.2d 132, 133 (Pa. 1945)). The only ways the tenancy may be severed, “other than by the death of one of the spouses, are ‘a joint conveyance of the state, divorce, or mutual agreement,’” id. (quoting Clingerman v. Sadowski, 519 A.2d 378, 381 (Pa. 1986)), none of which is at issue in this case. And as long as the tenancy remains intact, “[i]t is presumed that each tenant by the entirety may, without specific consent, act individually on behalf of both.” Id. Taking all of these considerations together, a conclusion that a corporation was the alter ego of one shareholder tenant by the entirety, but not the other, is legally untenable in Pennsylvania.

Again, here, having already concluded that Devon IT was not Bennett and DiRocco’s alter ego as a matter of Pennsylvania law, the District Court proceeded to pierce the corporate veil anyway. And it did so in a manner that, as explained above, Pennsylvania law would not have allowed: it distinguished between two tenants by the entirety and pierced with respect to only part of the judgment.

We will accordingly vacate the court’s order holding Bennett liable for the $737,018 in damages from the breach of contract claim and the $44,320 monetary sanction. Because the authority to impose sanctions for discovery violations committed in the district courts is generally entrusted to the discretion of those courts in the first instance, we will remand for further proceedings.

What Is the New Fireworks Law in Pennsylvania?

Setting off fireworks can be fun and exciting, but it can also be dangerous, and a new Pennsylvania law that went into effect October 30, 2017, makes it even more so. The law broadened the legal use of fireworks and slapped a new 12 percent tax on those purchases. The tax will help plug the budget deficit and provide grants to emergency medical services and volunteer fire departments. However, expanding fireworks use also increases the chance of causing injuries and damage.

Under the new law, Pennsylvania residents, previously restricted to using items like sparklers, now are allowed to purchase consumer-grade fireworks like Roman candles and bottle rockets that fly into the air. Previously, these items were available only to out-of-state shoppers.

While residents can now enjoy the freedom to create beautiful fireworks displays, this comes at a price. Once lit, these items are difficult to control and can cause injuries and fires.

According to the National Fire Protection Association (NFPA) fireworks report, in 2013 alone U.S. emergency rooms treated 11,400 people for fireworks-related injuries. An estimated 55% involved injury to arms, hands and legs, while 38% were to the head.

If you or a loved one has been seriously injured or had property damaged due to someone else’s negligence using fireworks, you may be entitled to compensation for the physical, emotional, and financial damages you suffered.  The experienced and compassionate Pennsylvania fireworks injury attorneys at Rieders, Travis, Humphrey, Waters & Dohrmann may be able to achieve for you the settlement you deserve.  Of course, each case is fact specific and there is no guarantee.

Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann knows the courts and the system and what you need to do to increase your chances of winning a good settlement.  Our seasoned Pennsylvania attorneys have helped hundreds of people file successful personal injury lawsuits. With decades of experience and an excellent reputation in the legal community, we are well positioned to handle even the most difficult cases and have successfully represented clients in personal injury cases of all kinds.

We offer a free consultation, so call or contact us online today.

What are the Rules?

Although the new law is statewide, every municipality can still set its own local fireworks laws and ordinances. Even where fireworks are legal, everyone using them has to exercise caution and follow rules.

According to the Pennsylvania State Police, state rules are as follows:

  • Buyers must be over 18.
  • Fireworks cannot be discharged from or toward a building or vehicle or within 150 feet of an occupied building.
  • Users must have permission from the owner of property where fireworks are to be discharged.
  • Fireworks cannot be used when under the influence of alcohol, drugs or controlled substances.

Some fireworks remain illegal or are limited to those operators with a permit. Devices such as M-80s, M-100s, cherry bombs or quarter- and half-sticks, remain illegal to individuals under federal law as they contain one to 10 grams of explosive flash powder and are used as dynamite in mining or by the military.

Using Fireworks Safely

Anyone deciding to use fireworks has a responsibility to do so safely. According to Wikihow, users should:

1) Take precautions

  • Protect eyes and ears with safety glasses and earplugs.
  • Dress in snugly fitting long sleeves and pants to protect from burns.
  • Use only legal fireworks with a Common Class C rating, bought from licensed public fireworks stands.
  • Store fireworks out of reach, away from children and from sun, extreme heat, or electronics.
  • Never carry fireworks in pockets or enclosed in fabric or plastic wrap.
  • Have water on hand in case of
  • Stay sober and alert.

2) Choose a safe area

Only use fireworks outdoors, in a flat and wide-open area with no overhead obstructions, and far from residences and flammable liquids. Watch for dry vegetation.

3) Practice safety

  • Follow instructions on the package.
  • Use long lighting devices.
  • Set up the fireworks correctly on flat surfaces or in ground.
  • Protect your head; do not lean over aerial fireworks or look into a mortar tube.
  • Be patient; wait at least 30 minutes before approaching fireworks that do not go off; disarm them in a bucket of water.
  • Light one device at a time and stand back 20 feet after lighting.
  • Keep pets and spectators away and upwind.

Injured by Fireworks? Contact Us for Help

Using fireworks carelessly and in uncontrolled settings is a recipe for disaster. Negligence and failure to follow safe procedures is behind most injuries, but they may also occur because of a fireworks defect. Manufacturers of defective products may be liable for injuries, as can local or regional distributors or importers.

The issue of comparative negligence often comes up in these cases.  The user of the fireworks has an obligation to be careful, and in Pennsylvania if a person is more than 50 percent responsible, they are not entitled to any recovery.

If you or a loved one has been injured or suffered property damage, or someone has died due to negligence in fireworks use or manufacturing defects, you need the help of an experienced attorney in order to ensure you get the compensation you are entitled to.  With our competent staff, the experienced and compassionate fireworks injury attorneys at Rieders, Travis, Humphrey, Waters & Dohrmann can help.

Cliff Rieders is a Nationally Board-Certified specialist for Civil Trial and Civil Practice and Procedure, a cum laude Phi Beta Kappa graduate of New York University as well as Georgetown University Law Center.  Rieders is a life member of the American Law Institute, which publishes recommended legal principles utilized throughout the United States.  He is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association.  Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award.  Cliff Rieders was a founder of the Pennsylvania Patient Safety Authority and served on same for 15 years.  Rieders was a Law Clerk in the federal court system for one of the most well-known and longest serving federal judges in the country, the Honorable Malcolm Muir.  Cliff has received the George F. Douglas Amicus Curiae Award, as well as the Milton D. Rosenberg Award from the Pennsylvania Trial Lawyers.  Rieders is on committees and organizations that write the law in many fields of practice.  Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania and wrote the book on medical malpractice that lawyers use in the state.

Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all personal injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.

We offer a free consultation to discuss your individual situation, so do not delay.  Call our office or contact us online today.

GUARDIAN AD LITEM-APPOINTMENT BY FEDERAL MAGISTRATE-MEDICAL MALPRACTICE

A.P. v. United States, 2018 U.S. App. LEXIS 14325 (3d Cir. May 31, 2018).  Federal Magistrate Judge may appoint guardian ad litem to bring a case to a close which has been pending for a long time and which was either settled or claims withdrawn because of a very substantial lien.  Apparently, federal courts have the duty to protect the interests of minors and those who are incompetent in cases before the court.  A minor whose parent is unrepresented may be represented by a guardian ad litem under Federal Rule of Civil Procedure 17(c)(2).  The court must appoint a guardian ad litem to protect the minor who is unrepresented in an action.  Generally, when a parent brings a lawsuit on behalf of a minor child and has similar interests as the minor, there is no need for the court to appoint a guardian ad litem.  Where there is a conflict of interest, the court is empowered to appoint a guardian ad litem to represent the minor.  Here, the parent apparently was objecting to the underlying settlement agreement.  The child had been deprived of the special needs trust and its corpus by virtue of the parent’s refusal to follow through on the settlement agreement.  For this reason, it was proper for the Magistrate Judge to appoint a guardian ad litem to ensure that the settlement funds could be used to benefit the child.

Fair Credit Billing Act – Billing Errors

Krieger v. Bank of America, N.A., No. 17-1275 (3d Cir. May 16, 2018) Krause, C.J.  The same day Appellant William Krieger fell victim to a credit card scam and discovered a fraudulent $657 charge on his bill, he protested to his card issuer, Bank of America (BANA), 1 and was told both that the charge would be removed and that, pending “additional information,” BANA considered the matter resolved. And indeed, Krieger’s next bill reflected a $657 credit. But over a month later Krieger opened his mail to some particularly unwelcome additional information: BANA was rebilling him for the charge. He disputed it again, this time in writing, but after BANA replied that nothing would be done, he paid his monthly statement and then filed this action, alleging BANA violated two consumer protection laws: the Fair Credit Billing Act, which requires a creditor to take certain steps to correct billing errors, and the unauthorized-use provision of the Truth in Lending Act, which limits a credit cardholder’s liability for the unauthorized use of a credit card to $50. The District Court granted BANA’s motion to dismiss the operative complaint after determining Krieger had failed to state a claim as to either count. Because we conclude the District Court’s decision was contrary to the text, regulatory framework, and policies of both statutes, we will reverse.

We conclude that a cardholder incurs “liability” for an allegedly unauthorized charge when an issuer, having reason to know the charge may be unauthorized, bills or rebills the cardholder for that charge. When an issuer does so, it must comply with the requirements of § 1643, and when a cardholder alleges those requirements were violated, those allegations may state a claim under § 1640. Krieger has stated such a claim, and we will reverse the District Court’s decision to the contrary.

TELEPHONE CONSUMER PROTECTION ACT-FAXES-UNSOLICITED-JURY CHARGE

City Select Auto Sales v. David Randall Associates, Nos. 16-3000 & 17-1851 (3rd Cir. March 16, 2018) Hardiman, C.J.  Plaintiff City Select Auto Sales, Inc. received unsolicited fax transmissions advertising the services of Defendant David Randall Associates, Inc. (David Randall). Claiming that those faxes were sent in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, City Select sued David Randall and its former president and co-owner, Raymond Miley, III. The case against Miley was tried to a jury and he was found not liable under the TCPA. After the United States District Court for the District of New Jersey entered judgment in favor of Miley and denied City Select’s motion for a new trial, City Select filed this timely appeal. 

At all relevant times, David Randall was a Pennsylvania-based commercial roofing company. Miley was its president and, with his wife, owned 90 percent of the company. The company’s office manager, April Clemmer, reported to Miley and her responsibilities included “[b]asic secretarial duties” and “work with the service department.” App. 354. 

In March, April, and May 2006, David Randall hired Business to Business Solutions (Business Solutions) to fax unsolicited advertisements to thousands of fax numbers. The first transmissions were sent on March 29 after Clemmer, with Miley’s handwritten approval, confirmed by fax the content of the ad, the quantity of faxes to be sent, and the areas to be targeted. David Randall received complaints in response to that initial foray into fax advertising, and Clemmer contacted Business Solutions to have several fax numbers removed from the list. On March 31, Business Solutions sent a second wave of faxes, which prompted several recipients to ask that their fax numbers be taken off the list. Two days later came a third burst of transmissions and on May 15, 2006, Business Solutions sent a fourth and final “blast” of 12,000 faxes.

The District Court gave the following jury instruction as to TCPA liability:

As I instructed you at the beginning of this trial, a TCPA claim for sending an unsolicited fax generally requires proof that: (1) the defendant utilized or caused to be utilized a telephone facsimile machine to send one or more faxes; (2) that the transmissions constituted advertisements; (3) that the defendant sent the transmissions without the recipient’s consent and outside of any one of the statutory exemptions; (4) that the defendant qualifies as a “sender” for purposes of the TCPA, that is, the entity on whose behalf an unsolicited facsimile advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement, or a person acting on behalf of that entity; and, in the case of an individual, (5) that the individual defendant had a significant level of personal involvement in the unlawful fax transmissions, as explained below.

The question of whether Miley was a “sender,” however, was never presented to the District Court, and it was raised here only on our order requesting supplemental briefing. Prior to our mention of the issue, the parties and the District Court relied on the longstanding consensus among district courts that the contours of corporate officer liability under the TCPA are defined by federal common law rather than by the text of the statute. On that view, an officer is personally liable for an illegal fax if he “had direct, personal participation in or personally authorized the conduct found to have violated the statute.” Texas v. Am. Blastfax, Inc., 164 F. Supp. 2d 892, 898 (W.D. Tex. 2001). As initially briefed, this appeal was about whether the District Court properly instructed the jury on that theory. We doubt as well, however, whether such common-law personal-participation liability is available against corporate officers under the TCPA. To be sure, the idea that Congress may establish statutory liability without expressly providing for it is not without precedent. Courts generally assume that “when Congress creates a tort action, it legislates against a legal background of ordinary tort-related . . . liability rules and consequently intends its legislation to incorporate those rules.” Meyer v. Holley, 537 U.S. 280, 285 (2003) (discussing vicarious liability). But the United States Code abounds with examples of Congress expressly authorizing personalparticipation liability or something quite like it. For example, corporate antitrust violations are “deemed to be also that of the individual directors, officers, or agents . . . who shall have authorized, ordered, or done any of the acts constituting in whole or in part such violation.” 15 U.S.C. § 24. Because Congress has demonstrated in many statutes that it “kn[ows] how to impose” personal-participation liability “when it cho[oses] to do so,” the argument that Congressional silence indicates an intent to do so here is a weak one at best. Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 176–77 (1994).

We may, of course, affirm for any basis supported by the law and the record. See, e.g., Migliaro v. Fidelity Nat’l Indemnity Ins. Co., 880 F.3d 660, 664 n.6 (3d Cir. 2018). And carried to their logical ends, our doubts as to the existence of either a statutory or common-law basis for Miley’s liability would permit us to affirm the judgment of the District Court on the ground that Miley cannot be held liable under the TCPA at all. Yet we are reluctant to decide such an important question when it was neither litigated in the District Court nor fully briefed and argued on appeal. Accordingly, we will assume without deciding that Miley may be held liable for David Randall’s TCPA violations under a personal-participation theory. For the reasons that follow, however, we will affirm the judgment of the District Court because we perceive no reversible error in the jury instructions.

Assuming that personal-participation liability is in fact available under the TCPA, a corporation’s officer “may be personally liable under the [statute] if he had direct, personal participation in or personally authorized the conduct found to have violated the statute, and was not merely tangentially involved.” Am. Blastfax, 164 F. Supp. 2d at 898; see also, e.g., Ott v. Mortg. Inv’rs Corp. of Ohio, Inc., 65 F. Supp. 3d 1046, 1060 (D. Or. 2014); Balt.-Wash. Tel. Co. v. Hot Leads Co., 584 F. Supp. 2d 736, 745 (D. Md. 2008). In other words, a corporate officer can be personally liable if he “actually committed the conduct that violated the TCPA, and/or [he] actively oversaw and directed this conduct.” Am. Blastfax, 164 F. Supp. 2d at 897.

For the reasons stated, we will affirm the District Court’s judgment and order.

STANDING-AFFORDABLE CARE ACT

Commonwealth of Pennsylvania v. President United States of America, 2018 U.S. App. LEXIS 10312 (3d Cir. April 24, 2018) Hardiman, C.J. In this appeal, we review an order of the United States District Court for the Eastern District of Pennsylvania denying a motion to intervene filed by the Little Sisters of the Poor Saints Peter and Paul Home. The Little Sisters sought to intervene in litigation challenging regulations promulgated under the Patient Protection and Affordable Care Act. The District Court denied the motion, finding that the Little Sisters lacked a significantly protectable interest in the case and that their interests were adequately represented by the federal government. We will reverse.

Appellant in this case is a religious nonprofit corporation that operates a Little Sisters home in Pittsburgh, Pennsylvania. The Little Sisters’ interest in regulations implementing the Affordable Care Act is neither novel nor isolated. Indeed, they have been involved in litigation regarding the Affordable Care Act for years, and their attempt to intervene in this case must be considered in full context. 

The Affordable Care Act includes a provision that requires health plans to cover certain forms of preventive care for women without cost sharing, as specified in guidelines issued by an agency of the United States Department of Health & Human Services (HHS) called the Health Resources and Services Administration. See 42 U.S.C. § 300gg-13(a)(4). Preventive care under these guidelines includes: all contraceptive methods approved by the Food & Drug Administration, sterilization procedures, and related counseling and education. Unless an exemption applies, failure to comply with the mandate renders a noncompliant employer subject to a penalty of $100 “for each day in the noncompliance period with respect to each individual to whom such failure relates.” 26 U.S.C. § 4980D(b)(1). In common parlance, this coverage has come to be known as the “contraceptive mandate.” 

The Little Sisters have demonstrated that this litigation implicates their legally cognizable interests to both the religious exemption and on other bases.  The Little Sisters also has an interest that is potentially in jeopardy.  The Third Circuit reversed the District Court’s denying The Little Sisters’ motion to intervene and remanded the case to permit intervention for the purpose of defending the portions of the religious exemption that apply to religious non-profit entities.

RELEASE-FELA

Margaret Jarrett v. Conrail, 2018 Pa. Super. LEXIS 381 (April 24, 2018) Lazarus, J.  Executrix executed a release in connection with Consolidated Rail Corporation and released, among other things, any sort of asbestos claim.  The case was settled in 2004, and a release was executed waiving any of the claims for cancer.  The claim released had to do with non-malignant asbestos.  In 2014, decedent was diagnosed with lung cancer and his representative commenced another FELA action alleging that the workplace exposure to asbestos causes cancer.  Motion for summary judgment was filed, and the court granted it.  Summary judgment was upheld on appeal.  Pennsylvania courts follow Wicker v. Conrail, 142 F.3d 690 (3d Cir. 1998), which held that an FELA release “does not violate 5 provided it is executed for valid consideration as part of a settlement, and the scope of the release is limited to those risks which are known to the parties at the time the release is signed.”  The trial court set forth the proper rule which was controlling and the case was properly dismissed.  The representative of the estate provided no evidence that decedent was unaware that cancer was a risk of asbestos exposure at the time he executed the release.

VICARIOUS LIABILITY-CORPORATE LAW-PARTICIPATION THEORY-CORPORATE OFFICERS

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 liability on company officers in DEP administrative orders. Id. (limited liability company officer held liable for civil penalties for company’s violations of consumer protection statute under participation theory); Herzog v. Department of Environmental Resources, 166 Pa.Cmwlth. 114, 645 A.2d 1381, 1392–93 (1994) (corporate representative was liable for environmental violations and was subject to DEP compliance order under participation theory); see also Kaites, 529 A.2d at 1151–52 (analyzing corporate officer liability for environmental violation under participation theory but holding that requirements were not satisfied).

The law is clear that a defendant is not liable under the participation theory merely because of his status and responsibilities as a company officer or because he is the sole individual directing the company’s actions. Longenecker v. Commonwealth, 142 Pa.Cmwlth. 130, 596 A.2d 1261, 1263 (1991); Kaites, 529 A.2d at 1151–52. The law is also clear that a company officer is not liable on the participation theory for failure to stop or correct conduct of other company employees where he had no actual knowledge of that conduct. Wicks, 470 A.2d at 90; Shay v. Flight C Helicopter Services, Inc., 822 A.2d 1, 19–20 (Pa. Super. 2003).

These principles do not, however, require that the courts exempt intentional and knowing wrongdoing of corporate officers from liability simply because their conduct consists of deliberate inaction. In Wicks, the Supreme Court did not hold that inaction can never be sufficient to support participation theory liability. Rather, the Court held that “mere nonfeasance” is not sufficient. 470 A.2d at 90 (emphasis added). The Court, moreover, gave as an example of “mere nonfeasance” a claim based on the fact that the corporate officer “should have known” of the wrongful act. Id. The conduct that the Court held sufficient to support participation theory liability in Wicks consisted of directing that work on a development proceed with knowledge that construction of the development created an unreasonable risk of damage to the plaintiffs’ property. Id.

This Court has held that intentional and knowing inaction can be sufficient to support participation theory liability for a statutory violation. In Kaites, this Court analyzed the participation theory in the context of an environmental violation and held it requires proof that the corporate officer committed “intentional neglect or misconduct” that contributed to the violation. 529 A.2d at 1152.

Rather, the EHB based its conclusion that Campola was liable on the participation theory on its factual determinations that he knew of B & R’s obligation to plug the Wells, that he made a decision that B & R would not plug any of the Wells, and that he had B & R spend its financial resources for purposes other than complying with DEP’s directions to plug the Wells.

Accordingly, we reverse the EHB’s dismissal of Campola’s appeal and its holding that Campola is liable for B & R’s statutory obligation to plug all 47 of the Wells. Because the EHB’s findings are insufficient, we remand this matter to the EHB for additional findings of fact as to how many, if any, of the Wells could have been plugged if Campola had caused B & R to make reasonable efforts to plug the Wells and for an adjudication of Campola’s liability in accordance with those findings.

CHARITABLE ORGANIZATIONS-SELF-DEALING

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 a Motion for Partial Summary Judgment contending that the evidence shows that they are upholding their mission and serving the public good in accordance with typical nonprofit practices and in compliance with Pennsylvania law.

The duty of loyalty requires that corporate directors devote themselves to corporate affairs with a view to promote the common interests and not only their own, and that they cannot directly or indirectly utilize their position to obtain any personal profit or advantage. Anchel v. Shea, 762 A.2d 346 (Pa. Super. 2000).

Factors that determine whether actions of a board fall outside the business judgment rule are whether the board was disinterested, whether it was assisted by counsel, whether it prepared a written report, whether it was independent, whether it conducted an adequate investigation, and whether it rationally believed its decision was in the best interests of the corporation – i.e., acted in good faith. 

By requiring that “excess income” only be used for the lawful activities of the nonprofit provision, the duty of obedience requires that the director’s decisions to expend funds substantively further the purpose for which the nonprofit was organized and not to any of its members, directors or officers of the corporation.

Under the above provisions of the Law, the Individual Directors would not be liable if the transactions at issue here and the relationship and the material facts are disclosed as well as if the transactions were fair and reasonable at the time it was authorized.

A director of a nonprofit charitable corporation does not have the equivalent obligation of a trustee but the director, when exercising his or her fiduciary duties, must take into consideration what is “in the best interests” of the corporation. This includes acting with due care, including reasonable inquiry, skill and diligence as a person of ordinary prudence would use under similar circumstances. The director must also take into consideration that the primary purpose is to advance the charitable purposes of the corporation.

In support of their respective motions, the parties have submitted hundreds of exhibits, consisting of thousands of pages of documents, together with expert reports. In reviewing those documents, the parties appear to disagree as to what each document signifies, whether the transaction was fair at the time it was entered, and there is virtually no discussion of whether the board of directors or members were fully informed of the self-dealing transactions and whether it was authorized by the disinterested board of directors or approved by the members “in good faith.” 15 Pa.C.S. § 5728(a)(3).

Accordingly, the Commonwealth’s Motion for Summary Judgment and the Charities and Individual Defendants’ Motion for Partial Summary Judgment are denied.

MALICIOUS PROSECUTION-FALSE ARREST

Alleyne v. Pirrone, 2018 Pa. Commw. LEXIS 90 (March 9, 2018) Brobson, J. Detective George Pirrone (Detective Pirrone), Detective James Pitts (Detective Pitts), and Lieutenant Philip Riehl (Lieutenant Riehl) (collectively, Appellants) of the Philadelphia Police Department appeal from an order of the Court of Common Pleas of Philadelphia County (trial court). Following a trial, a jury found all three defendants liable to Kareem Alleyne (Alleyne) for malicious prosecution and found Detective Pirrone and Lieutenant Riehl liable to Alleyne for false arrest. Appellants appeal from the trial court’s denial of their motion for judgment notwithstanding the jury’s verdict. For the reasons set forth below, we reverse. On April 20, 2016, the jury returned a verdict favorable to Alleyne and awarded him damages in the amount of $1,030,250. The jury found all three Appellants—Detective Pitts, Detective Pirrone, and Lieutenant 25 Riehl—liable for malicious prosecution. The jury determined that only Detective Pirrone and Lieutenant Riehl were liable for false arrest. Alleyne very effectively defended against the criminal charges he faced by highlighting serious holes and inconsistencies in the Police Department’s investigation. While the improprieties by Appellants significantly hindered the criminal case against Alleyne, they did not rise to the level of preventing any reasonable person from believing Alleyne had committed a crime. As we noted in Schell v. Guth, 88 A.3d 1053 (Pa. Cmwlth. 2014), the law does not require that every 16 Finally, because we reverse the trial court’s order on the basis that ADA Selber had probable cause to charge and prosecute Alleyne, we need not address the remaining arguments presented by Appellants pertaining to immunity under the Tort Claims Act. 36 flawed investigation or failure to prove guilt beyond a reasonable doubt be vindicated by a subsequent lawsuit: We understand that [the plaintiff] believes that he was unjustly charged . . . He likely shares that feeling with many others ultimately acquitted of criminal charges in a court of law. His acquittal, however, does not necessarily mean that [the law enforcement defendants] should be held civilly liable for their roles in the criminal and internal administrative cases against [him]. Schell, 88 A.3d at 1070. Civil liability does not flow automatically from a weak criminal case. Here, there was sufficient undisputed evidence upon which Officer Ghee and ADA Selber could have reasonably believed that Alleyne committed a crime. Accordingly, we reverse the trial court’s order and remand the matter with instructions that the trial court enter judgment in favor of Appellants.

Lanham Act False Advertising By Law Firm

Larry Pitt & Associates v. Lundy Law LLP, No. 2:13-cv-02398-CMR (February 15, 2018) Rufe, J. In Pennsylvania, unlike in many other jurisdictions, an attorney or a law firm is permitted to refer a case to another attorney or law firm and earn a portion of the clients’ fees without performing any work on the case, so long as the arrangement is disclosed to the client and the fee is not excessive. However, a law firm may not actively advertise in its own name for certain categories of cases for the purpose of referring those cases to other law firms. This case requires the Court to determine whether, and under what circumstances, a law firm can obtain relief against such advertising practices by its competitor. For years, Lundy Law, a personal injury law firm with offices in Philadelphia and surrounding counties in Pennsylvania, New Jersey, and Delaware, has advertised on television, public transit, and other media, using the slogan “Remember this Name” and its mnemonic hotline number 1-800-LUNDYLAW. Since at least 2008, Lundy Law’s advertisements have solicited workers’ compensation and social security disability cases, among other categories of cases. Pitt is another Philadelphia-area law firm, which has, for many years, advertised for personal injury, workers’ compensation, and social security disability cases. At some point, Pitt began using the slogan “Remember this Number” in conjunction with its own mnemonic intake number. On March 4, 2013, in a decision that set off the current legal battles between the two firms, Lundy Law sued Pitt for trademark infringement, but dismissed the suit voluntarily without prejudice on April 18, 2013. Pitt responded by filing this suit, asserting that Lundy Law’s trademark suit was a wrongful use of civil proceedings in violation of Pennsylvania’s Dragonetti Act. Pitt’s initial complaint also asserted that various aspects of Lundy Law’s advertising campaign violated the Sherman Antitrust Act, the Lanham Act, and Pennsylvania common law prohibitions against tortious interference and unfair competition.

Lanham Act False Advertising

The Court dismissed Pitt’s Sherman Act and tortious interference claims with prejudice but allowed Pitt to proceed on 1) its false advertising claim under the Lanham Act (Count Five), 2) its common law unfair competition claims based on deceptive marketing and trade secret misappropriation (Count Six); and 3) its Dragonetti claim (Count Eight). Pitt’s false advertising claim under the Lanham Act and deceptive marketing claim under Pennsylvania unfair competition law are both based on Lundy Law’s extensive advertisements for workers’ compensation and social security cases, which Lundy Law agreed to refer to certain other law firms in exchange for referral fees. With respect to social security cases, between November 11, 2008 and February 2011, Lundy maintained an agreement with the Indiana-based law firm, Fleschner, Stark, Tanoos & Newlin, under which the two firms would share in the cost of Lundy Law’s advertising for social security disability cases in the Philadelphia area, and Lundy Law would refer all of its potential social security disability cases directly to Fleschner in return for referral fees. Between March 2011 and October 31, 2013, Lundy Law had a similar referral and advertising agreement with the Pennsylvania-based law firm, Pond Lehocky. In 2013, shortly after the filing of this lawsuit, Lundy Law entered into yet another referral agreement with the Carolinas-based law firm of Crumley Roberts, under which Lundy referred most of its potential social security cases to Crumley in exchange for referral fees. However, at the same time, Lundy Law engaged a social security attorney, Michele Squires, as part-time “of counsel” to the firm to handle “up to five” social security cases a month. With respect to workers’ compensation cases, beginning sometime between 2009 and 2012, Lundy Law has maintained a referral agreement with the Law Offices of Lenard A. Cohen, P.C. (“LOLAC”), under which LOLAC subsidizes the cost of Lundy Law’s workers’ compensation advertisements, and Lundy Law refers all its potential workers’ compensation cases in Pennsylvania to LOLAC in exchange for a referral fee. However, while LOLAC has remained an independent firm, Lenard A. Cohen himself has been covered under Lundy Law’s liability insurance policy as “of counsel” to the firm since 2009 and keeps Lundy Law business cards and a Lundy Law email address. Since 2012, LOLAC’s offices have also been physically located within Lundy Law’s office in Philadelphia, and Mr. Cohen has attended Lundy Law attorney meetings and advertising meetings. Lundy Law’s advertisements throughout this time vary in the specificity with which they solicit social security and workers’ compensation cases. Many are banners featuring 1-800- LUNDYLAW in large font with the words “Injury and Disability Lawyers” or “Injury, Disability & Workers’ Compensation lawyers,” in smaller font above or below the telephone number. Some advertisements feature testimonials from purported social security disability or workers compensation clients that they were glad they “remembered the name.” Some of Lundy Law’s television commercials, however, specifically promote Lundy Law’s purported services for workers’ compensation and social security disability clients. For example, a commercial aired between June 2012 and January 2013 displays the message “Lundy Law gets you the social security benefits you deserve” and features the following statement from Leonard Lundy: People should always apply for Social Security Disability Benefits. We’ll help you through the process. That’s what we do. Another commercial aired during the same period features a similar statement from Mr. Lundy: Social Security benefits are available to people because they have a physical or mental condition that makes it impossible for them to work. It’s also available for people who have never worked. It’s really a cumbersome process. Our job is to get them the benefits after they’ve been denied. That’s what we do. As Mr. Leonard speaks, the following messages appear on the screen: • Denied Social Security benefits? • Lundy Law gets more than retirement benefits from Social Security. • Lundy Law simplifies the Social Security process. • Lundy Law gets the Social Security benefits you need. Similarly, a workers’ compensation commercial aired in 2015 and 2016 features Mr. Lundy telling viewers: Injured on the job? We’re here to help. Call now to talk directly to a workers’ compensation lawyer. At Lundy Law, your own lawyer will guide you through every step of the process. In addition, at least one of Lundy Law’s paper advertisements specifically identifies “Social Security Disability” and “Workers’ Compensation” as two of Lundy Law’s “Practice Areas.” Pitt asserts that all of these advertisements are false and misleading because Lundy intended to refer, rather than handle, any potential workers’ compensation and social security cases. Pitt’s claim of unfair competition based on misappropriation of trade secrets focuses on a different aspect of Lundy Law’s advertising campaign: specifically, Lundy Law’s relationship with Titan (now known as Intersection Media), the exclusive advertising company for the Southeastern Pennsylvania Transportation Authority (“SEPTA”). For many years, Lundy Law has purchased advertising space on SEPTA buses, trains, and transportation stops, and throughout that time, Leonard Lundy’s daughter, Sara Lundy, has been an account executive at Titan. In that role, she provided Lundy Law with photographs of advertisements used by other law firms and information on their locations as well as transit ridership information. Pitt alleges that these disclosures constituted misappropriation of confidential information concerning the advertising strategies of Lundy Law’s competitors, including Pitt. Pitt has not met its burden of raising a genuine question of fact as to whether Mr. Cohen is an attorney at Lundy Law, or even if he is not, whether the particular differences between Lundy Law’s relationship with Lenard Cohen and a law firm’s relationship with its own attorneys would be material to potential clients. Accordingly, Pitt has not provided sufficient evidence to support its Lanham Act claim based on Lundy’s workers’ compensation advertisements. Some, but not all, of Pitt’s advertisements for social security advertisements unambiguously represent that Lundy Law’s attorneys handle social security claims, the Court considers whether this message “conflicts with reality.” There is a genuine dispute of fact over whether at least three of Lundy Law’s advertisements published during this time period were “literally false.” Plaintiff has not disputed that Ms. Squires was available and authorized to handle at least some social security cases at Lundy Law after November 2013, Lundy Law’s advertisements for social security cases since then are not “literally false.” Pitt has provided no surveys or consumer testimony that show clients would have responded differently to Lundy Law’s advertisements if they omitted references to its social security practice or expressly disclosed that Lundy Law would refer rather than handle social security cases. For the reasons discussed above, Lundy’s motion for summary judgment will be granted as to all remaining claims. The Court is aware that its decision today denies a plaintiff relief despite evidence of years of wrong-doing by the defendants. There is every indication here that a prominent personal injury law firm in Philadelphia essentially rented out its name in exchange for referral fees and that its managing partner lied on television that his firm handled social security disability claims when it did not. But when a plaintiff fails to meet its burden of establishing causation of harm or likelihood of future violations, the Lanham Act and Pennsylvania law do not permit a court to grant relief based solely on a defendant’s past misrepresentations. Nonetheless, courts are not the only institutions to review deceptive attorney advertising; nor are they typically the most appropriate or efficient forum. In many instances, a complaint to the state attorney disciplinary boards may be the most effective means for quickly ending and sanctioning plainly unethical conduct. Thus the Court’s decision should not be read to condone or excuse Defendants’ alleged actions, but should instead serve as a reminder of the burden that plaintiffs bear when they choose to seek relief against their competitors in court.

MALICIOUS PROSECUTION

Zimmerman v. Thomas W. Corbett, et al., No. 16-3384 (3rd Cir. October 16, 2017) McKee, C.J. Appellants are current and former high ranking officials of the Commonwealth of Pennsylvania, including a former Attorney General who subsequently became Governor. They appeal the District Court’s partial denial of their motion for judgment on the pleadings in an action that John Zimmerman, a former employee of the state legislature, filed against them under 42 U.S.C. § 1983. Zimmerman alleged that Appellants were all involved in bringing criminal charges against him and that those charges amounted to malicious prosecution in violation of both the Fourth and Fourteenth Amendments of the United States Constitution and Pennsylvania law.

For the reasons that follow, we conclude that there was probable cause to initiate those criminal proceedings and that Zimmerman can therefore not establish a prima facie case of malicious prosecution. We will therefore reverse the District Court’s order insofar as it denied Appellants’ motion for judgment on the pleadings.

RELEASES-AUTHORIZATIONS-STUDENT ATHLETES

Feleccia v. Lackawanna College, 2017 Pa. Super. 44, No. 385 MDA 2016 (February 24, 2017) Shogan, J.  Trial court had granted summary judgment in favor of a Lackawanna College student who was seriously injured in a football tackling drill during the first day of spring contact football practice at the college.  The college is a non-profit junior college and a member of the National Junior College Athletic Association.  Two athletic trainers were present at the practice who were not adequately trained.  The lower court granted the motion for summary judgment based upon waiver due to the signing of an agreement by the student and on assumption of risk.  All this was reversed.  The court also found no immunity based upon the Pennsylvania Good Samaritan Act.

Waivers are not to be lightly entered into.  Recklessness cannot be released in a pre-injury exculpatory clause.  It cannot.  As in other inherently dangerous activities, the waiver is valid.  Like the trial court, the Superior Court agreed that the waiver does not violate public policy, relates to private affairs of the parties, and is not a contract of adhesion.  Nevertheless, the Superior Court disagreed with the trial court that the waiver is enforceable under the facts of this case.  The waiver is not sufficiently particular.  It is not without ambiguity.  The language of the waiver is not clear that the person being relieved of liability is being relieved for their own acts of negligence.  The waiver does not include language to indicate that Lackawanna was being relieved of liability for its own acts of negligence.  A genuine issue of material fact exists as to whether the college’s failure to provide qualified medical personnel constitutes gross negligence or recklessness.  The foreseeability of student athlete sustaining severe and even life threatening injuries while engaged in athletic activities and the unreasonableness of a college’s failure to protect against such a risk is shown in this case.  The college owed the student athletes and their parents a duty of care in their capacity as intercollegiate athletes engaged in a school-sponsored and supervised intercollegiate athletic activity.  We further hold that the college’s duty of care to its intercollegiate student athletes requires it to have qualified medical personnel available at the football tryout and to provide adequate treatment in the event that an intercollegiate student athlete suffered a medical emergency.  Lastly, we hold that the determinations of whether the college breached its duty and whether that breach caused the student athletes’ damages are questions of fact for the jury.  Thus, the trial court erred in determining that the waiver was enforceable without considering whether the college’s conduct in failing to provide qualified medical personnel at the practice was grossly negligent or reckless.  The trial court did not address averments of negligence per se.  The court should have done that in light of the facts of this case.  Based upon this record, we conclude that a jury must determine if the college’s people at the event were acting as athletic trainers and if the college’s employment of them at the practice was negligence per se and resulted in harm to the students.  It is for the jury to decide whether the college’s employment of unqualified personnel increased the risk of harm to its student athletes and, if so, whether the athletes assumed a known or obvious danger, i.e., the risk of injury caused by the college’s conduct.  An additional fact to be resolved by the jury is the following:  Is the tackling drill at issue in this case part of the game of football, so that an injury resulting from participation at the tryout is an inherent risk of football?  Aside from concern about this practice drill being considered an inherent risk of football, we are concerned with a release being used to excuse a college from having qualified medical personnel readily available to its student athletes.  Colleges are expected to put a priority on the health and safety of their students, especially student athletes engaged in dangerous sports.  Many colleges profit significantly from student athletes’ participation in these sports.  Enforcing a release and granting summary judgment in a situation where the availability of qualified medical personnel is called into question would jeopardize the health and safety of such student athletes by removing at least one incentive for colleges “to adhere to minimal standards of care and safety.”  Tayar v. Camelback Ski Corp., 47 A.3d 1203 (Pa. 2012).  Case remanded for trial.

HOME IMPROVEMENT CONSUMER PROTECTION ACT-QUANTUM MERUIT-REASONABLE VALUE OF SERVICES

Waldron Electric Heating and Cooling v. Caseber, 2017 Pa. Super. LEXIS 917 (November 14, 2017) Moulton, J.  Contractor sued for breach of contract and unjust enrichment concerning some electrical work they had done.  A contract in conformity with the law was prepared by the contractor.  The law involved was the Home Improvement Consumer Protection Act (“HICPA”), 73 P.S. §§ 517.1-517.18.  This permits a contractor to recover the reasonable value of services performed if the contract complied with the law.  The court found this contract did comply with the law and therefore it was error for the trial court to bar Waldron Electric from asserting a claim for the reasonable value of services under § 517.7(g).  The Superior Court made no determination as to whether Waldron Electric has established a right to recover any payment.  They made no determination as to the reasonable value of services or whether it would be inequitable to deny recovery to Waldron Electric.  Therefore, judgment was affirmed in part and reversed in part.

DISCOVERY-EXPERTS-FRYE ISSUE-ERGONOMICS

Buttaccio v. American Premiere Underwriters, 2017 Pa. Super. LEXIS 936, No. 1602 EDA 2016 (November 16, 2017) Fitzgerald, J.  Appellants, American Premiere Underwriters and the railroads, argued that the trial court abused its discretion by denying their motion to exclude the testimony of plaintiff’s liability expert on the ground that his methodology was not generally accepted in the field of ergonomics.  This was an FELA case.  A claim was brought against railroad employees to recover for occupational injuries and economic damages.  The plaintiff worked as a carman and car inspector at a railroad yard.  The work required him to kneel or squat next to or under rail cars and to do a lot of climbing and use vibrating tools.  A $600,000 verdict was awarded which was molded to $597,000.  The trial court concluded that no need existed to hold a Frye hearing because the testimony was not based on novel methodology.  The testimony was based upon experience and education in ergonomics.  The ruling was well within the trial court’s discretion.  The court’s analysis is consistent with other decisions in other FELA cases, finding that their methodology of the particular doctor in question himself and other ergonomists is generally accepted in the ergonomic community.

However, the court should have granted a mistrial because the attorney for the injured worker spoke about the deaths of two carmen in an unrelated case.  The trial court compounded its error by failing to issue a curative instruction to the jury.  The trial court, on remand, should hold an evidentiary hearing on the issue as to whether to preclude evidence that the railroad received thousands of claims for carpal tunnel syndrome and lower extremity disorders and upper extremity disorders as well.  Whether these “other claims” evidence was inadmissible because they were not similar to the plaintiff employees is something the court will have to decide.

ERISA-ADMINISTRATOR’S INTERPRETATION-DEFERENCE

Dowling v. Pension Plan, 2017 U.S. App. LEXIS 17863 (3rd Cir. September 15, 2017) Vanaskie, C.J.  Retirement plans can be complex documents that span hundreds of pages with numerous peculiarities. But when do a plan’s terms move from merely complex to ambiguous? That is the question in this pension plan dispute. Former Union Pacific employee John Dowling is covered by a 277–page retirement plan composed of introductory material, 19 articles of content, and various appendices—none of which explicitly address Dowling’s precise situation. When Dowling retired, the plan administrator interpreted the plan to provide Dowling with a lower monthly payment than he expected. Dowling challenged the administrator’s decision as contradicting the plan’s plain language, but the District Court found the plan ambiguous and the administrator’s interpretation reasonable. Dowling appealed, and the dispute now centers on three issues:  the text of the plan, our standard of review, and whether a conflict of interest alters the outcome. Because the plan’s terminology, silence, and structure render it ambiguous, the plan accords the plan administrator discretion to interpret ambiguous plan terms, and the mere existence of a conflict of interest is alone insufficient to raise skepticism of the plan administrator’s decision, we will grant deference to the plan administrator and affirm.

STANDING-CONSUMER PROTECTION STATUTES

Cottrell, et al. v. Alcon Laboratories, et al., No. 16-2015 (3rd Cir. October 18, 2017) Restrepo, J.  In this putative class action, consumers of prescription eye medication allege that manufacturers and distributors of the medication packaged it in such a way that forced them to waste it, violating the consumer protection statutes of their home states. The District Court dismissed the entire action for lack of jurisdiction, finding the consumers’ allegations of injury in fact insufficient to confer standing. For the reasons that follow, we will reverse the dismissal, and remand the case for further consideration.

An injury must be both concrete and particularized; these are distinct components of injury in fact. Spokeo, 136 S.Ct. at 1548. “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’ ” Id. at 1548; see also In re Schering Plough, 678 F.3d at 245 (noting that the party seeking review must be “himself among the injured” (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130)); The Pitt News, 215 F.3d at 360. Although “[g]eneralized grievances” common to the public will not suffice, Knick v. Twp. of Scott, 862 F.3d 310, 318 (3d Cir. 2017), “[t]he fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance,” Spokeo, 136 S.Ct. at 1548 n.7. Requiring a plaintiff to allege facts establishing he is personally injured by a defendant’s conduct places “the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome.” Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Here, each Plaintiff alleges financial harm that he or she has personally incurred in purchasing medication that was impossible for him or her to use. There can be no dispute that this harm is particularized.

For the foregoing reasons, we will reverse the District Court’s dismissal of this action and remand for further proceedings consistent with this opinion.

RELEASE-FAMILY MEDICAL LEAVE ACT OF 1993

Zuber v. Boscov’s, 2017 U.S. App. LEXIS 17484 (3rd Cir. September 11, 2017) Greenaway, Jr., C.J.  In this appeal, we must determine whether a former employee waived his right to assert claims under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2617 (“FMLA”), and Pennsylvania common law when he signed a Compromise and Release Agreement (“C&R”) to settle his workers’ compensation claims. The District Court held that the former employee had waived his claim, and granted Boscov’s Motion to Dismiss. We disagree and will reverse and remand the case.

Accordingly, we review the C&R, and, if ambiguous, proceed to examine its background. In light of the C&R’s ordinary meaning and structure, we find that Zuber’s FMLA and common law claims cannot “be fairly said to have been within the contemplation of the parties when the release was given.” Restifo, 230 A.2d at 201. Because the document is unambiguous, we need not review any parol evidence.

We read the C&R as only preventing Zuber from seeking benefits and monies from a work injury claim. Here, Zuber seeks benefits and monies from FMLA and common law claims. As a result, the C&R does not cover his claims.3

The entire structure of the C&R also suggests that the parties did not intend the C&R to cover FMLA or common law claims.

We read the C&R’s purpose as resolving the “work injuries, disability and need for medical treatment.” Id. As a result, we find that neither party intended to release claims that emanate from a lack of notice, a failure to properly designate leave, and acts of retaliation, such as Zuber’s FMLA and common law claims.

When Zuber signed the C&R, he merely released his right to bring a future workers’ compensation claim against Boscov’s. Consequently, it does not prohibit Zuber from bringing FMLA or Pennsylvania common law claims against Boscov’s.

For the foregoing reasons, we will reverse the District Court’s orders granting Boscov’s Motion to Dismiss and denying Zuber’s Motion for Reconsideration. We will remand for further proceedings consistent with this opinion.

AMERICANS WITH DISABILITIES ACT-TACTILE INTERPRETER

McGann v. Cinemark USA, Inc., 2017 U.S. App. LEXIS 19553 (3rd Cir. October 6, 2017) Restrepo, C.J.  The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., requires public accommodations, including movie theaters, to furnish auxiliary aids and services, which include qualified interpreters, to patrons with vision, hearing, and speech disabilities. Plaintiff-Appellant Paul McGann, who is blind and deaf, requested from Defendant-Appellee Cinemark USA, Inc. (“Cinemark”) an American Sign Language (“ASL”) tactile interpreter so that he could experience a movie in his local Cinemark theater during one of its regular showings. Cinemark denied his request, and McGann then filed this suit under the ADA.

After a bench trial in which the parties stipulated to all relevant facts, the District Court entered Judgment in favor of Cinemark. It reasoned that McGann’s requested tactile interpreter was not an auxiliary aid or service under the ADA and that the ADA did not require movie theaters to change the content of their services or offer “special” services for disabled patrons. For the following reasons, we will vacate the Judgment and remand for consideration of Cinemark’s available defense.

Having established that Title III’s auxiliary aids and service requirement applies to McGann’s request for a tactile interpreter to allow him to experience a movie in Cinemark’s theater, we turn to Cinemark’s available defenses. As discussed, Title III does not obligate a public accommodation to furnish a requested auxiliary aid or service if doing so would “fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered” or “would result in an undue burden.” 42 U.S.C. § 12182(b)(2)(A)(iii). The public accommodation bears the burden of showing either defense. Id.; 28 C.F.R. § 36.303.

IMMUNITY-QUALIFIED IMMUNITY-CONCUSSION INJURY IN SCHOOL SPORTING EVENT

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 under a state-created danger theory of liability, a constitutional right to protection in the context presented here was not clearly established in 2011. Accordingly, the District Court granted Walkowiak qualified immunity and dismissed him from the lawsuit on that basis. As to Palmerton Area, the District Court found that the Manns had failed to present evidence sufficient to warrant a jury trial on the question of whether the school district had a custom or policy that caused a violation of Sheldon’s constitutional rights. Accordingly, the District Court entered judgment in favor of Palmerton Area.

We agree with the District Court’s conclusions pertaining to the claims against the football coach: Walkowiak’s alleged conduct, if proven at trial, would be sufficient to support a jury verdict in favor of Mann on his state-created danger claim, but the right in question—to be free from deliberate exposure to a traumatic brain injury after exhibiting signs of a concussion in the context of a violent contact sport—was not clearly established in 2011. Accordingly, the District Court correctly ruled that Coach Walkowiak was entitled to qualified immunity. We also agree with the District Court that the Manns did not present sufficient evidence to warrant a jury trial on the Monell claim against Palmerton Area. We will therefore affirm the District Court’s grant of summary judgment.

PARTNERSHIPS-COVENANT OF GOOD FAITH AND FAIR DEALING

Hanaway v. The Parkesburg Group, LP, No. 55 MAP 2016 (S.Ct. August 22, 2017) Wecht, J.  We reverse the Superior Court and hold that the implied covenant of good faith and fair dealing is inapplicable to the Pennsylvania limited partnership agreement at issue.  It was formed well before the enactment of amendments that codified the covenant.  The Act is 15 Pa. C.S. § 8611.

Prior to Act 170, there was no duty of good faith applicable to limited partnership agreements formed pursuant to PRULPA.  Because the duty of good faith and fair dealing did not exist at the time that the parties entered into the Parkesburg limited partnership agreement, and because it did not exist at the time that an alleged breach occurred, it is unnecessary to address T.R. White’s second inquiry – whether the implied duty of good faith and fair dealing can override the parties’ express contract terms.

UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW-NURSING PROGRAM

McCabe v. Marywood Univ., 2017 Pa. Super. LEXIS 534 (July 18, 2017) Shogan, J.  Danielle McCabe (“McCabe”) appeals from the order sustaining preliminary objections filed by Marywood University (“Marywood”) and dismissing her claims for breach of contract, breach of good faith and fair dealing, violation of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), unjust enrichment, and promissory estoppel. We affirm. The UTPCPL provides a private cause of action to any person who, as a result of conduct that the UTPCPL prohibits, “suffers any ascertainable loss of money or property, real or personal.” 73 P.S. § 201–9.2(a). “To bring a private cause of action under the UTPCPL, a plaintiff must show that he justifiably relied on the defendant’s wrongful conduct or representation and that he suffered harm as a result of that reliance.” Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438 (Pa. 2004). Upon review, we conclude that the record supports the trial court’s finding that McCabe’s “harms come from her decision to transfer schools.” Trial Court Opinion, 8/10/16, at 4. As explained above, McCabe averred that she paid tuition for the opportunity to graduate from a fully accredited nursing program. Complaint, 4/20/16, at ¶ 56. McCabe also averred that Marywood misrepresented its NLNAC accreditation status and that she justifiably relied on its misrepresentations. Id. at 75–76. However, nowhere in her complaint did McCabe aver that Marywood denied her the opportunity to graduate from a fully accredited nursing program by allegedly misrepresenting the nursing program’s accreditation status. Thus, we discern no abuse of the trial court’s discretion or error of law in sustaining Marywood’s preliminary objections to McCabe’s UTPCPL claims. Even accepting as true McCabe’s well-pleaded material facts and all reasonable inferences which may be drawn from those facts, we agree with the trial court’s conclusion. McCabe paid tuition and received academic credit for courses she enrolled in as a student in the nursing program from the fall of 2011 through the spring of 2013. McCabe fails to demonstrate how Marywood’s retention of McCabe’s tuition for the academic credits she earned from an accredited nursing program—credits she then lost by voluntarily transferring schools—qualifies as unjust enrichment. Thus, we conclude that the trial court did not abuse its discretion or commit an error of law in sustaining Marywood’s demurrer to Count IV of McCabe’s complaint. In conclusion, we discern no basis on which to disturb the trial court’s rulings. Thus, we affirm the order sustaining Marywood’s preliminary objections and dismissing McCabe’s complaint.

How to Make Arbitration Work in Disputes with Your Bank

If you are disputing unexpected fees and charges with your bank, credit card company, or other lender, you may be surprised to find you are forced to take your dispute to arbitration. Arbitration is an out-of-court procedure that most often favors big institutions and usually cannot be appealed. Consumers often have no idea that they must use arbitration, because the clause requiring them to do so is hidden in their original service contract that they probably never bothered to read.

Such causes should be banned by the Seventh Amendment to the United States Constitution, which grants the right to trial by jury. Also, the commerce clause of the United States Constitution, generally speaking, keeps the federal government out of disputes that are local in nature. Nevertheless, the United States Supreme Court has repeatedly held that the Federal Arbitration Act usurps the right to trial by jury.

There are a few things you can do to help recover unfair charges. The Consumer Financial Protection Bureau (CFPB) has made a ruling making it a little easier for consumers to join class-action lawsuits to fight alleged wrongdoing by financial institutions. However, this regulation is not retroactive, so you may be stuck with the arbitration requirement agreed to in your original service contract.

Consultation with a qualified attorney may help you determine the validity of your case, decide whether it qualifies for class action, and increase the chances of winning if you do go to arbitration.

Arbitration vs. Class Action

Arbitration is usually voluntary but may be required by law or by a contract signed by the parties. In the arbitration process, the arbitrators, who are supposed to be neutral third parties, hear evidence from the parties to a dispute. The arbitrators then issue an “award” that declares which party gets what and may also write an “opinion” explaining their reasoning. If both sides agree to be bound by the decision, it is known as binding arbitration, and the decision is final and cannot be appealed or reviewed by a court.

While the process should be neutral, financial institutions love arbitration because the system shields them from class action lawsuits. Class action lawsuits can bring embarrassing publicity about deceptive or unfair practices, make companies stop these practices, and cost them big money in payments to injured customers.

The chances of winning in an individual arbitration case are slim. In a 2015 study, the CFPB found that consumers are less likely to get relief for harms in arbitration than in a class action lawsuit.

In the study of about a thousand cases, 78 consumers won $360,000 in relief through arbitration. Compare this to statistics for financial institutions who do not use forced arbitration — 34 million consumers won $1.1 billion over a five-year period.

While the payoff per consumer in a class-action lawsuit may be small, without class actions, most wronged bank and credit card customers would wind up with nothing. And class actions have a greater benefit – they pressure companies, who may be sued for millions in a class action and suffer losses from widespread negative publicity, to stop cheating consumers. Punishments awarded secretly in an arbitration do not provide these incentives.

It Pays to Consult an Attorney

A consultation with a consumer attorney can help determine whether your case is worth going to arbitration or whether there may be a class action lawsuit in which you can participate. Sometimes financial institutions have violations of laws that allow for fee-shifting—if the company loses in arbitration, it must pay reasonable fees to your attorney. Also, there are times the company may agree to settle, if they do not want to pay the fees associated with arbitration.

An attorney can provide basic information on most financial institutions and guide you through the complaint process and the process of gathering all the relevant information and contacting the institution.

A study by the CFPB of 400 class actions against banks and payday lenders found that more than 13 million customers received more than $2.7 billion in recoveries. The CFPB study also found that the total attorney fees in the cases amounted to 16% of the amount received by the consumers.

Costs are spread across many plaintiffs, so it increases affordability litigating the case. Many class actions are on a contingency fee basis, so no one pays legal fees unless the case is won. And while it may not be worth the cost of pursuing a claim for justice against a corporation on your own, you can if you are part of a group.

Make Sure You Obtain Assistance

Requirements are complicated, and there are different standards set by Pennsylvania and federal courts, so it is essential that you contact an attorney experienced in arbitration and class action lawsuits. Be aware that there are deadlines involved with bringing lawsuits, and sometimes you may only have as few as 180 days to file a claim.

JURORS-JURY SELECTION-RELATIONSHIP

Shinal v. Toms, 2017 Pa. LEXIS 1385 (S. Ct. June 20, 2017) Wecht, J. In this medical malpractice action premised upon lack of informed consent, we address whether the trial court erred in refusing to strike prospective jurors for cause based upon their relationships to the case through their employer or their immediate family member’s employer. We conclude that the trial court did not err in this regard. However, we conclude further that the trial court committed an error of law when it instructed the jury to consider information provided by the defendant surgeon’s qualified staff in deciding the merits of the informed consent claim. Because a physician’s duty to provide information to a patient sufficient to obtain her informed consent is non- delegable, we reverse the Superior Court’s order affirming the judgment entered in favor of the defendant, and we remand for a new trial.

This case involves Geisinger.  Steven Toms, M.D., is the Director of the Department of Neurosurgery at Geisinger and employed as a Neurosurgeon.  It is claimed that the doctor operated to extract a tumor, but was unable to remove all of it and the residual is a problem and will eventually become life threatening.  Dr. Tom’s physician assistant provided the informed consent.  Prior to jury selection, the Shinals moved to strike all potential jurors who were either employed by or insured by, or family members employed by or insured by any Geisinger entity.  The trial court granted in part and denied in part the motion.  The court directed prospective jurors who were employed by named Geisinger Medical Center or Geisinger Clinic who had family members residing in the same household who were so employed, would be stricken for cause.  The court immediately attempted to select a jury.  However, after numerous prospective jurors were disqualified, the court aborted the selection process and postponed the trial.  The Shinals moved for a change in venue, which the court denied.  The court granted a motion for partial summary judgment in favor of Geisinger Medical Center and the Clinic because the duty to obtain Mrs. Shinal’s informed consent belonged to Dr. Toms and Dr. Toms’ employer or the employer’s agents.  The court later attempted to comply with the Cordes opinion.  Cordes v. Association of Internal Medicine, 87 A.3d 829 (Pa. Super. 2014).  Opinion in support of reversal by Justice Wecht.  The court undertook an inquiry as to whether prospective jurors or their close family members have a close financial or situational relationship which may give rise to an appearance or prospect of partiality or bias and stated it would consider whether to disqualify such prospective jurors on an individual basis.  The court then began a second attempt at jury selection.  The court asked whether the juror or family members (1) knew or had been patients of Dr. Toms, (2) were employed by a Geisinger entity, (3) if employed by a Geisinger entity, whether the prospective juror perceived that entity to be the same entity employing Dr. Toms, and if so, (4) whether the prospective juror perceived that a verdict against Dr. Toms would have an adverse substantial impact upon that Geisinger entity.  The trial court also asked each juror whether he or she could render a fair and impartial verdict.    One person was an administrative secretary at Geisinger Sleep Labs. Another prospective juror worked for 35 years as an administrative assistant in a pediatric department for a Geisinger entity.  The third person was a customer service representative for Geisinger Health Plan.  A fourth prospective juror was a retired physician assistant who had previously worked at a Geisinger entity but never in Dr. Toms’ department.  That same person’s son worked as a night security officer for a Geisinger entity.  All four jurors believed they could be fair and impartial.  They did not know Dr. Toms, and he did not treat any close family or friends.  The trial court dismissed the motion to dismiss these prospective jurors for cause.  The court also found that a physician assistant could satisfy informed consent requirements.

An indirect employment relationship with an employer that has an ownership interest in a party defendant, standing alone, does not warrant a presumption of prejudice. However, a juror may reveal a likelihood of prejudice resulting from such an indirect employment relationship through his or her conduct or answers to questions. Because the law endeavors to hold the jury system free from any appearance of partiality, it is incumbent upon trial courts to explore specific, indirect employment relationships between jurors (and their close family members) and parties, and to be vigilant in guarding against the appearance of partiality that can arise in the context of such relationships. An indirect employment relationship will require removing a potential juror for cause if the juror believes that the outcome of the case could have a financial impact upon his or her employer. When it is apparent both that there is a common employer between a juror or a juror’s close family member and a party defendant, and that the juror believes that the employer would be affected by the outcome of the case, the trial court must remove the juror for cause.

Facially, the indirect familial, financial, or situational relationships presented by these four jurors are not akin to the close relationships as to which we have presumed prejudice in the past. The respective relationships between Dr. Toms and Woll, Schiffino, or Nagle, through their current or former non-party employer’s parent company, or between Ackley or Nagle through, respectively, their wife’s or son’s nonparty employer’s parent company, were indirect, and not sufficiently close so as to require a presumption of prejudice as a matter of law. Because this case presents an indirect employment relationship, it was incumbent upon the trial court to engage the jurors in questioning to reveal whether they believed that their or their family member’s current or former employer would be financially harmed by an adverse verdict or whether the relationship would affect the jurors’ respective abilities to be impartial. In assessing the trial court’s acceptance of the juror’s answers, we apply a deferential standard of review and will reverse the trial court upon a palpable abuse of discretion. Koehler, 737 A.2d at 238.

The trial court accepted the jurors’ answers, finding that none of the four challenged jurors believed that a verdict against Dr. Toms would negatively affect their, or their close family member’s, employer. Tr. Ct. Op. at 9. The trial court further accepted each juror’s testimony that he or she could remain fair and impartial. Id. Given the jurors’ answers during voir dire, the trial court did not abuse its discretion in declining to strike those jurors for cause. See Fletcher, 149 A.2d at 437 (finding no abuse of discretion where “the trial judge was most circumspect in ascertaining whether . . . [challenged jurors] were capable of rendering fairly a verdict on the evidence adduced”).

The next issue is whether the trial court misapplied the common law and the MCARE Act when it instructed the jury that it could consider information provided to Mrs. Shinal by Dr. Toms’ “qualified staff” in deciding whether Dr. Toms obtained Mrs. Shinal’s informed consent to aggressive brain surgery.

For the same reasons, we hold that a physician cannot rely upon a subordinate to disclose the information required to obtain informed consent. Without direct dialogue and a two-way exchange between the physician and patient, the physician cannot be confident that the patient comprehends the risks, benefits, likelihood of success, and alternatives. See Valles, 805 A.2d at 1239 (providing that informed consent flows from discussions between the physician and patient); Gray, 223 A.2d at 674 (requiring both parties to understand the nature of the procedure and the expected results). Informed consent is a product of the physician -patient relationship. The patient is in the vulnerable position of entrusting his or her care and well-being to the physician based upon the physician’s education, training, and expertise. It is incumbent upon the physician to cultivate a relationship with the patient and to familiarize himself or herself with the patient’s understanding and expectations. Were the law to permit physicians to delegate the provision of critical information to staff, it would undermine patient autonomy and bodily integrity by depriving the patient of the opportunity to engage in a dialogue with his or her chosen health care provider. A regime that would countenance delegation of the informed consent process would undermine the primacy of the physician-patient relationship. Only by personally satisfying the duty of disclosure may the physician ensure that consent truly is informed.

Thus, we hold that a physician may not delegate to others his or her obligation to provide sufficient information in order to obtain a patient’s informed consent. Informed consent requires direct communication between physician and patient, and contemplates a back -and -forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent. The duty to obtain the patient’s informed consent belongs solely to the physician. Bulman and Foflygen, upon which the lower courts and Dr. Toms relied, are Superior Court cases which pre-date Valles and the MCARE Act. To the extent that those decisions permit a physician to fulfill through an intermediary the duty to provide sufficient information to obtain a patient’s informed consent, we overrule them

RIGHT-TO-KNOW LAW-MOTOR VEHICLE RECORDINGS-VIDEO-AUDIO-STATE POLICE

Pennsylvania State Police v. Grove, No. 25 MAP 2016 (Pa. S. Ct. June 20, 2017) Dougherty, J.  We granted discretionary review to consider whether video components of motor vehicle recordings (MVRs) created by appellant Pennsylvania State Police (PSP) are exempt from disclosure to the public as criminal investigative records under the Right-to-Know Law, 65 P.S. §67.101-67.3104 (RTKL) or the Criminal History Record Information Act, 18 Pa.C.S. §§9101-9183 (CHRIA). We also consider whether these recordings implicate provisions of the Wiretapping and Electronic Surveillance Act, 18 Pa.C.S. §§5701-5782 (Wiretap Act). The Commonwealth Court held MVRs generally are public records subject to disclosure, and affirmed in part the decision of the Office of Open Records (OOR) directing PSP to provide MVRs to appellee Michelle Grove (Grove). The Commonwealth Court also reversed in part, remanding the matter to the OOR with instructions for redaction of the audio portions of the MVRs before disclosure. We now affirm in part and reverse in part. It is clear the individuals at the scene could have had no reasonable expectation of privacy, or any justifiable expectation that their statements and images were not being captured on MVRs, or by any number of cellphones for that matter. Under the circumstances, we conclude disclosure of the MVRs pursuant to the RTKL does not violate the Wiretap Act. Accordingly, we reverse that portion of the Commonwealth Court’s order that suggested additional findings with respect to notice are warranted on remand. We affirm the Commonwealth Court’s order in all other respects. Order affirmed in part and reversed in part. Matter remanded for further proceedings consistent with this opinion.

FAIR DEBT COLLECTION PAYMENT ACT-COLLECTION EFFORTS-BAR CODE-REVEALING PRIVATE INFORMATION

Daubert v. NRA Group, 2017 U.S. App. LEXIS 11802 (3rd Cir. July 3, 2017) Fisher, C.J.  The court said that judgment should be entered for the debtor under FTCPA and TCPA in which the debtor faced a $25.00 collection from Radiology Associates.  The bare account number and bar code on the collection letters envelope, it was claimed, revealed private information.  Congress passed TCPA to protect individual consumers from receiving intrusive and unwanted calls.  To that end, the TCPA bars any person within the U.S. from making calls to a phone number assigned to a cellular telephone service using an automated telephone dialing system.  Of course, one may consent to the calls.  Consent must be clear and unequivocal.  No reasonable jury could find that Daubert expressly consented to receive calls from NRA about the $25.00 debt.  There is no evidence Daubert gave his express consent to receive the phone calls from Radiology Associates.  Therefore, Daubert should win on all counts.  Whether bar code account numbers or bar codes violate the statute is unsettled by any relevant binding authority.  The Supreme Court has never addressed it.  The bona fide error defense does not apply.  Debt collectors cannot escape a district court’s finding under FTCPA where the Supreme Court has not determined the issue.

TELEPHONE CONSUMER PROTECTION ACT-UNSOLICITED CALLS

Susinno v. Work out World, 2017 U.S. App. LEXIS 12253 (3rd Cir. July 10, 2017) Hardiman, C.J. Noreen Susinno appeals the District Court’s order dismissing her Telephone Consumer Protection Act (TCPA) claim against Work Out World Inc. for lack of subject matter jurisdiction. Because the TCPA provides Susinno with a cause of action, and her alleged injury is concrete, we will reverse the order of the District Court and remand for further proceedings.  Susinno alleged that on July 28, 2015, she received an unsolicited call on her cell phone from a fitness company called Work Out World (WOW). Susinno did not answer the call, so WOW left a prerecorded promotional offer that lasted one minute on her voicemail.  Susinno filed a complaint in the United States District Court for the District of New Jersey claiming WOW’s phone call and message violated the TCPA’s prohibition of prerecorded calls to cellular telephones, 47 U.S.C. § 227(b)(1)(A)(iii). WOW moved to dismiss Susinno’s complaint for lack of subject matter jurisdiction.  The District Court granted WOW’s motion to dismiss. Its decision was based on two conclusions: (1) a single solicitation was not “the type of case that Congress was trying to protect people against,” App. 38, and (2) Susinno’s receipt of the call and voicemail caused her no concrete injury. Susinno filed this timely appeal.

MEDICARE SET-ASIDE ARRANGEMENT

A new publication concerning Medicare Set-aside Arrangements went into effect on July 1, 2017.  This is a recap of what Publication 100-20 sets forth with respect to set-aside arrangements.

Pub 100-20 One-Time Notification, identifies changes that will be necessary for Medicare contractors and other parties to create records and process claims for both Liability Medicare Set-aside Arrangements (LMSA) as well as No-Fault Medicare Set-aside Arrangements (NFMSA).  As stated above, this publication does not have any immediate impact nor does it change the requirements regarding set-aside arrangements.  This publication primarily lists internal business requirements and assigns responsibilities for certain computer programming/testing obligations to Centers for Medicare and Medicaid Services’ (CMS) contractors.  Although this publication does have a direct effect on the settlement of personal injury cases at the moment, there are sections that suggest the direction CMS may eventually take on this issue in the future.

It is important to note first that there has not been any movement, guidance, or rulemaking for LSMAs since CMS withdrew the previously proposed regulations in 2014.  Due to this fact, the status quo remains.  Settlement parties and their attorneys should consider the question of future costs of care, but not every settlement will require a Medicare Set-aside Arrangement (MSA).  In our research into this publication, we came across an article describing this notion that the Publication may cast light on things to come.  Here are the quoted takeaways from the article:

On its face, the publication of technical requirements is a public statement of attention to LMSA issues.  These requirements will become effective over the second half of 2017.  (Note: they became effective July 1, 2017).  In addition, a recent Medicare RFP—which also includes language in respect of handling LMSAs—will result in a new MSA contract effective July 1, 2018.

This Publication does not require that MSAs must be established in every case.  The publication states the Medicare policy is to not make payment for injury-related care post-settlement where an MSA is available to pay; however, it also confirms that “Liability and No-Fault Medicare Secondary Payer (MSP) claims that do not have a MSA will continue to be processed under current MSP claims processing instructions” (emphasis added).  This is a key statement because it contemplates situations where both of the following are true: (1) medical expenses are incurred post-settlement, and (2) Medicare would still have the responsibility to pay for them.  The Publication does not define what circumstances warrant such coverage, but this important policy note reflects that Medicare does not require an MSA in every liability settlement.

This Publication does not provide any mechanism for reviewing an LMSA or insight into how settling parties should determine (1) the appropriateness of establishing an LMSA, and (2) if applicable, the appropriate funding amount.  The Publication outlines tracking requirements for LMSAs as part of a Medicare beneficiary’s common working file (including, but not limited to, whether an MSA is exhausted, and what diagnosis codes should be associated with the MSA).  But, it does not indicate whether or to what extent Medicare will review LMSAs that are submitted (as Medicare does, in certain circumstances, WCMSAs).

Citing article at https://web.garretsongroup.com/client-alerts/medicare-begins-system-preparation-for-liability-msas-only-a-matter-of-time.

What a review of Pub. 100-20 shows, is that at this time there are no changes with regards to set-aside arrangements but it will be important that counsel keep an eye out on this for potential future changes.

FOREIGN SOVEREIGN IMMUNITIES ACT

Bolivarian Republic of Venez v. Helmerich & Payne Int’l Drilling Co., 2017 U.S. LEXIS 2802 (May 1, 2017) Breyer, J.  The Foreign Sovereign Immunities Act of 1976 (FSIA or Act), provides, with specified exceptions, that a “foreign state shall be immune from the jurisdiction of the courts of the United States and of the States . . . .” 28 U.S.C. §1604. One of the jurisdictional exceptions—the expropriation exception—says that “[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . (3) in which rights in property taken in violation of international law are in issue and that property . . . is owned or operated by an agency or instrumentality of the foreign state . . . engaged in a commercial activity in the United States.” §1605(a)(3).

The question here concerns the phrase “case . . . in which rights in property taken in violation of international law are in issue.”

Does this phrase mean that, to defeat sovereign immunity, a party need only make a “nonfrivolous” argument that the case falls within the scope of the exception? Once made, does the existence of that nonfrivolous argument mean that the court retains jurisdiction over the case until the court decides, say, the merits of the case? Or does a more rigorous jurisdictional standard apply? To put the question more generally: What happens in a case where the party seeking to rely on the expropriation exception makes a nonfrivolous, but ultimately incorrect, claim that his property was taken in violation of international law?

In our view, a party’s nonfrivolous, but ultimately incorrect, argument that property was taken in violation of international law is insufficient to confer jurisdiction. Rather, state and federal courts can maintain jurisdiction to hear the merits of a case only if they find that the property in which the party claims to hold rights was indeed “property taken in violation of international law.” Put differently, the relevant factual allegations must make out a legally valid claim that a certain kind of right is at issue (property rights) and that the relevant property was taken in a certain way (in violation of international law). A good argument to that effect is not sufficient. But a court normally need not resolve, as a jurisdictional matter, disputes about whether a party actually held rights in that property; those questions remain for the merits phase of the litigation.

Moreover, where jurisdictional questions turn upon further factual development, the trial judge may take evidence and resolve relevant factual disputes. But, consistent with foreign sovereign immunity’s basic objective, namely, to free a foreign sovereign from suit, the court should normally resolve those factual disputes and reach a decision about immunity as near to the outset of the case as is reasonably possible. See Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 493-494, 103 S. Ct. 1962, 76 L. Ed. 2d 81 (1983)

DEFAMATION-IMMUNITY-MEDICAL PRACTICE ACT

Greenberg v. McGraw, 2017 Pa. Super. LEXIS 324 (May 5, 2017) Bender, P.J.E.  Appellant, Michael R. Greenberg, M.D., MBA, appeals from the trial court’s April 28, 2016 order sustaining Appellee’s, Nadine M. McGraw, preliminary objections in the nature of a demurrer.  Upon careful review, we affirm.  We agree with the trial court that the procedures for reporting a doctor to the medical board constitute a quasi-judicial proceeding.  They share many of the characteristics of an adjudicatory process.  Discretionary decision-making authority (for instance, whether to initiate formal charges or to settle cases by consent agreements) and procedural safeguards (hearings, appeals, etc.) are patently present.  Dr. Greenberg also sued for abuse of process.  Accordingly, for the above-stated reasons, we hold that the absolute privilege applies to statements made to the Board of Medicine for the purpose of initiating judicial or quasi-judicial proceedings against a licensee, even if such statements are allegedly false. As such, we conclude that Dr. Greenberg’s defamation claim against Ms. McGraw is barred at this time. In addition, we also apply the absolute privilege to bar Dr. Greenberg’s intentional infliction of emotional distress claim, given that it occurred in connection with the proceedings and in light of the policy implications addressed above.  However, we note that the absolute privilege does not apply to bar Dr. Greenberg’s abuse of process claim.  Based on the case law cited supra, it is evident that an abuse of process claim cannot be based on the wrongful initiation of proceedings, which is what Dr. Greenberg alleges Ms. McGraw did by making false statements to a Board investigator. There are no allegations that Ms. McGraw perverted the legal process after its issuance. Therefore, we conclude that Dr. Greenberg has failed to state a claim for abuse of process. Accordingly, we affirm the trial court’s order sustaining Ms. McGraw’s preliminary objections.

PRISONER LAW-RETALIATION

Wisniewski v. Fisher, et al., 2017 U.S. App. LEXIS 8577 (3d Cir. Pa. May 16, 2017) Vanaskie, C.J.  Appellant Thomas Wisniewski, appeals from an order of the United States District Court for the Middle District of Pennsylvania dismissing his amended complaint for failure to state a claim. For the reasons set forth below, we will reverse in part the District Court’s order and will remand for further proceedings.  In 2013, Wisniewski filed a civil rights action pursuant to 42 U.S.C. § 1983, naming as defendants officials and employees of the State Correctional Institution at Smithfield (“SCI-Smithfield”) in Huntingdon, Pennsylvania, where he is confined. In a sprawling amended complaint, Wisniewski asserted claims of First Amendment retaliation and violations of his Fourth, Eighth, and Fourteenth Amendment rights.  Wisniewski’s amended complaint alleged that he worked as an Inmate Legal Reference Aide in the prison’s law library. Perceiving staffing shortages and believing that other library policy decisions were harming the ability of inmates to access the courts, he registered complaints with prison officials and filed inmate requests about the issues. He asserted that, in turn, he was subject to additional scrutiny when, in his library position, he provided legal assistance to qualified inmates who had been assigned to his caseload by prison officials.  Wisniewski claimed that charges were contrived against him and that he was retaliated against for his complaints.  The amended complaint suggests a pattern of retaliation beginning with his complaints to prison staff about the prison’s implementation of library policies and culminating with the loss of his position as an Inmate Legal Reference Aide.  Accordingly, construing Wisniewski’s amended complaint liberally, we believe that he adequately alleged a causal connection between those complaints and his job removal. This court has held that because exhaustion of prison administrative remedies is mandatory under the Prison Litigation Reform Act, the statute of limitations applicable to Section 1983 actions should be tolled while the prisoner pursues the mandated remedies.  We conclude that the District Court erred in dismissing claims as barred by the statute of limitations without considering whether Wisniewski properly exhausted administrative remedies and whether and to what extent the limitations period should be tolled.

Villani v. Seibert, 2017 Pa. LEXIS 939, Chief Justice Saylor decided April 26, 2017

In this interlocutory direct appeal by permission, we consider whether a legislative enactment recognizing a cause of action for wrongful use of civil proceedings infringes upon this Court’s constitutionally prescribed power to regulate the practice of law, insofar as such wrongful-use actions may be advanced against attorneys.  Notably, Appellants had not specifically referenced the Dragonetti Act in their complaint.  As the proceedings have developed, however, it has become clear that Appellants are relying upon the enactment.  Whether charged with a violation of [Rule] 3.1 or a violation of the Dragonetti Act, an attorney would defend with the same evidence upon which the attorney his or her good faith belief that there was a basis in law and fact to bring or defend the underlying civil proceeding.  In either case, the finder of fact would be charged with determining whether the lawyer’s belief was objectively reasonable, i.e., whether the lawyer had acted in good faith by relying upon creditable facts and a non-frivolous legal argument for purposes of probable cause to pursue a claim.  In conclusion, in our considered judgment, Appellee has failed to establish that the Dragonetti Act clearly and palpably violates the Pennsylvania Constitution, or that this Court should per se immunize attorneys, as attorneys, from the application of the substantive tort principles promulgated by the political branch in the Dragonetti Act. In terms of the arguments pertaining to the legislative decision to adjust the liability standard to subsume gross negligence, this Court’s rules are not intended as a safe harbor for attorneys who cause harm to others via such elevated heedlessness.  Similarly, while the Rules of Professional Conduct may describe lawyers’ ethical obligations in a more objective fashion than is reflected in the Dragonetti’s Act’s liability threshold, the interests of justice do not favor immunizing conduct undertaken with a subjectively wrongful state of mind.  Indeed, the common law liability standard of malice certainly has subjective attributes.  The order of the common pleas court is reversed, and the matter is remanded for further proceedings consistent with this opinion.

STATUTE OF FRAUDS-MORTGAGE

The trial court misconstrued the law.  Therefore the judgment below was vacated and the matter remanded for proceedings.  The case involved whether a mortgage was viable.  Unfortunately, the two people who knew most about it were deceased.  The trial court should not have voided the deed in question.  The note or mortgage that secured the note were valid and binding.  The mortgage contained language that said it was intending to be legally binding and therefore it was.  The court should reconsider on remand whether the will was inconsistent with the intent to be legally bound to the mortgage.  The court also erred in relying upon parol evidence to determine that the note and mortgage were unenforceable because the parties did not have a “meeting of the minds.”  The obligation under the mortgage document is clear.  A person cannot assert that he did not understand what he was signing.  Whether the contract is ambiguous as a matter of law.  The court had no license to invalidate a mortgage by finding it ambiguous.  The terms were exacting enough to be binding.  There was no essential term missing.  The ambiguity regarding the mortgage debt advanced prior to the time of execution of the mortgage did not make the note indefinite.  Strothers v. Hofmann, 2017 Pa. Super. LEXIS 191 (Pa. Super. March 24, 2017) Solano, J.

INDIVIDUALS WITH DISABILITIES EDUCATION ACT-EXHAUSTION OF ADMINISTRATIVE PROCEDURES

Fry v. Napoleon Cmty. Schs, 2017 U.S. LEXIS 1427  (S. Ct. February 22, 2017) Kagan, J.  This case holds that exhaustion is not necessary when the gravamen of a plaintiff’s suit is something other than the denial of the IDEA’s core guarantee, what the Act calls a “free appropriate public education.”

UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW-RELIANCE-MORTGAGE FORECLOSURE

Claim for violation of Unfair Trade Practices and Consumer Protection Law thrown out by trial court.  The Third Circuit affirmed.  In 1999, homeowners obtained a home loan from Parkway Mortgage secured by a mortgage on the property.  Parkway Mortgage assigned the interests to non-parties, which in turn assigned their interests.  Homeowner stopped making payments because they did not receive monthly statements.  They were said to be in default, and foreclosure followed.  A judgment was taken against the homeowners, and they wound up in bankruptcy.  The homeowners sued the mortgage company.  The lower court ruled in favor of the homeowners on the contract claim, but determined they could not recover damages for attorney’s fees or any other damages.  The court said the claim under the Unfair Trade Practices and Consumer Protection Law was properly dismissed, along with infliction of emotional distress claims.  There was no implied covenant of good faith and fair dealing.  Reliance was not proven.  Dehart v. Homeq Servicing Corp., 2017 U.S. App. LEXIS 2276 (Feb. 8, 2017).

STANDING-BENEFICIARIES OF CDs

Rellick v. Smith v. Rellick, 147 A.3d 897 (Pa. Super. 2016).  We conclude that Rellick-Smith, as a beneficiary of the CDs named by the decedent/principal during her life, had standing to challenge the propriety of the Defendants’ unilateral action, as agents under the POA agreement, in changing the decedent’s beneficiary designation, to the Defendants’ benefit.  In summary, the Orphans’ Court erred in ruling that only the decedent or her personal representative had standing to challenge the Defendants’ change of the beneficiary designation under the CDs.  Accordingly, we vacate the Order granting the Defendants’ Motion to Dismiss and remand for further proceedings.

CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT-PROPERTY OWNER’S AGENTS

Scungio Borst and Associates v. 410 Shurs Lane Development, 146 A.3d 232 (Pa. 2016). Justice Todd.  In this appeal, we consider whether a contractor may maintain an action under the Contractor and Subcontractor Payment Act (“CASPA”) against a property owner’s agents.  After careful review, we hold that a contractor may not do so, and, accordingly, we affirm the order of the Superior Court.

In our view, the General Assembly in enacting CASPA intended to address the problems inherent in reliance on common law contract doctrine to solve payment disputes in the construction field, and did not intend, as SBA suggests, to impose liability on agents.

We hold a contractor may not maintain an action under CASPA against a property owner’s agents.  Accordingly, we affirm the order of the Superior Court.

Barnes v. Alcoa, Inc., 145 A.3d 730 (Pa. Super. 2016)

Kawneer Company Wholly Owned Subsidiary of Alcoa hired Crawford to clear snow.  Plaintiff fell on the ice.  Alcoa was thrown out of the case.  The contract to clear the snow was between Kawneer the property owner and the snow clearing company and not Alcoa.  324A Restatement of Torts (Second) has been adopted as law in Pennsylvania.  It deals with the requirement to protect the party from harm and to exercise reasonable care and if the failure to protect somebody increases a risk of harm to them or if there is an undertaking to perform a duty owed by somebody to a third person or if harm is suffered because of reliance.  Here it was found that Alcoa had undertaken no duty.

Dempsey v. Bucknell University, 834 F.3d 457 (3rd Cir. 2016)

Reed Dempsey brought a civil rights action under 42 U.S.C. § 1983 against Bucknell University Public Safety (“BUPS”) officers, and Bucknell University officials (collectively, the “Bucknell Defendants”) claiming violations of his Fourth Amendment right to be free from unlawful search and seizure.  Because we agree with the District Court that, even taking into account certain facts recklessly omitted from the affidavit of probable cause, a reasonable jury could not find a lack of probable cause, we will affirm the District Court’s grant of summary judgment in favor of the Bucknell Defendants.  We turn now to the merits of Dempsey’s argument that the District Court erred in determining that although the officer recklessly omitted information from the affidavit of probable cause, there was nevertheless probable cause for the charges against Dempsey.  First we assess the evidence the plaintiff asserts was recklessly omitted from the affidavit.  Next, we reconstruct an affidavit that includes any recklessly omitted information.  And finally, we assess the materiality of the omitted information to the probable cause determination.  The lower court, Judge Brann, was affirmed in throwing out the case.

N.A.A.C.P. v. City of Philadelphia, 834 F.3d 435 (3d Cir. 2016)

The City of Philadelphia has a written policy preventing private advertisers from displaying non-commercial content at the Philadelphia International Airport.  The City, which owns the Airport, says the policy helps it further its goals of maximizing revenue and avoiding controversy.  The record, however, reveals substantial flaws in those justifications.  The City acknowledges the flaws but nonetheless maintains that the ban on non-commercial ads is a reasonable use of governmental power.  It is not.  Because the ban is unreasonable, it violates the First Amendment and cannot be enforced as written.  The District Court reached the same conclusion, and we therefore affirm.

The United States Court of Appeals, Third Circuit, Watson v. Rozum, 834 F.3d 417 (3d Cir. 2016)

Affirmed the trial court’s grant of summary judgment on the retaliatory claims but reversed the grant of summary judgment on other claims.  A reasonable factfinder could conclude that a misconduct was issued against the prisoner in retaliation for the prisoner’s statement that he was going to file a grievance because of a broken radio and not in furtherance of legitimate penological goals.

STANDING-FIRST AMENDMENT VIOLATION-RELIGION

Individual who objects to religious message in Ten Commandments in school has standing to bring a claim.  One who is too young to read the message, however, does not have standing.  Request for an injunction is not moot.  An organization would have standing if one of its members does.  In this case, the matter was sent back to the trial court to demonstrate whether the elements necessary for standing to object to religious display were met.  Freedom from Religion v. New Kensington School, 832 F.3d 469 (3rd Cir. 2016).

DRAGONETTI-DAMAGES-PROOF OF WRONGFUL USE OF CIVIL PROCEEDINGS

Miller v. St. Luke’s Uiv. Health Network, 142 A.3d 884 (Pa. Super. 2016).  “The question before us, therefore, is whether the trial court properly declined to instruct the jury that Dragonetti Act damages are presumed to flow from a defendant’s wrongful use of civil proceedings in favor of instructing, instead, that a plaintiff who proves wrongful use still carries the burden of proving resultant damages…We, therefore, dismiss Appellant’s challenge to the jury charge as meritless.”  In spite of the jury’s finding of a violation of the Dragonetti Act, the jury had the right to find that there were no damages.  The court did not disturb the jury’s determination that there was no probable cause in pursuing the claim of wrongful use of civil proceedings.

WARRANTY-IMPLIED WARRANTY OF MERCHANTABILITY-AVIATION EQUIPMENT

Allen-Myland, Inc. v. Garmin International, 140 A3d 677 (Pa. Super. 2016).  The Superior Court reversed and remanded grant of a compulsory nonsuit in favor of Garmin International and Winner Aviation Corporation.  Lawsuit had been brought in connection with aviation equipment that did not work properly and did not function the way plaintiff said it should have.  The court sent the case back to the court below.  There were disclaimers of warranty in the products sold.  The court found that the disclaimer of the warranty in this case was not effective.  Triable issues of fact existed as to whether the disclaimer was part of the parties’ bargain.  This is true both with respect to the Pilot Guide and other documentation.  The record supports at least a reasonable inference that all functionality includes automatic altitude capture.  We also believe it is reasonable to infer that an aircraft avionics system contains far too many functions for the parties to list them all prior to entering into the purchase order agreement.  Also at issue was the measure of damages for breach of warranty.  The trial court erred in granting partial summary judgment in favor of Garmin on the breach of implied warranty claim.  The trial court erred in entering compulsory nonsuit in favor of Winner on the claims of breach of express warranty, implied warranty and breach of contract.

SPOLIATION

King v. Pittsburgh Water & Sewer Authority, 139 A.3d 336 (Pa. Cmwlth. 2016).  Case brought under the utility services facilities exception to local agency immunity.  King claimed county court erred in denying her post-trial motions after a non-jury verdict in favor of Pittsburgh Water & Sewer Authority.  The Commonwealth Court affirmed.  There was a claim of failure to maintain a sewer grate which caused injury to plaintiff’s leg.  The sewer grate had been destroyed.  It was asserted that a sanction against the Authority for its purposeful spoliation of evidence should have been utilized.  The central issue is whether the Authority had notice of the allegedly dangerous condition of the sewer grate at a sufficient time prior to the incident to have taken measures to protect against a dangerous condition.  Before trial, King conceded she did not have evidence that the Authority had actual notice of the allegedly dangerous condition.  Therefore, King relied upon spoliation because the grate had been destroyed.  The court found no abuse of discretion.  There could have been opinion evidence based upon large color photographs of the damaged sewer grate presented at trial.  King did not present any testimony concerning the length of time the damage to the grate existed that would have placed the Authority on notice.  King alleged spoliation as a sanction.  The court did not agree.  The claim of a sanction cannot override the notice provision of the Act.

GOOGLE-WIRETAP ACT

Google essentially cannot be sued under the Federal Wiretap Act.  There has to be an intentional interception or attempting to intercept the contents of an electronic communication using a device.  Companies who have placed cookies on computing devices are like one party communications, meaning that the parties are not liable under the Wiretap Act.  The Stored Communications Act prevents potential intrusions on individual privacy arising from illicit acts as to stored communications in remote computing operations and large databanks that store emails.  This Act is violated when a person intentionally accesses without authorization a facility through which an electronic communication service is provided or intentionally exceeds an authorization to access that facility and thereby obtains, alters or prevents authorized access to a wire or electronic communication while it is in the electronic storage in such system.  Google would not fall under this either.  Personal computing devices are not protecting facilities under the statute, finds the court.  The Video Privacy Protection Act is also said not to apply.  It creates a private cause of action for plaintiffs to sue persons who disclose information about their video-watching habits. The Act, says the court, is not well drafted and this helps Google.  Google is not an appropriate defendant when it comes to garnering information about kids who watch Nickelodeon.  The Supreme Court has not ruled on this.  A few other circuits have gone this way, however.  In re Nickelodeon Consumer Privacy Litigation, 827 F.3d 262 (3rd Cir. 2016).

Angino & Rovner v. Lessin & Associates, 131 A.3d 502 (Pa. Super 2016)

Angino & Rovner attempted to enforce a Contingent Fee Agreement after they were fired and the client obtained a positive result through another law firm.  The termination penalty imposed by the contingency contract in the case is unenforceable.  What the attorney who is fired is entitled to is quantum meruit.  Quantum meruit recovery should be based on a fair assessment of the contributions of the discharged attorney to any eventual award in the case.  The court did not decide whether that was available to Angino in this case.

Mammaro v. New Jersey Division of Child Protection and Permanency, 814 F.3d 164 (3d Cir. 2016)

Plaintiff claimed that temporary removal of her children was a violation of substantive due process.  The caseworkers filed an interlocutory appeal and the court found they were immune from the suit and have qualified immunity.  Caseworkers making allegations of child abuse have to make difficult decisions.  Caseworkers are protected by qualified immunity unless clearly established law puts them on notice that their conduct is in violation of the constitution.  In this case there was no such clearly established law and qualified immunity applies.

RICO-DEBT COLLECTION PRACTICES

After he defaulted on a $1,000 loan and had his car repossessed, appellant Goldenstein sued repossession company and others.  He claimed the repossession was unlawful.  He also claimed a violation of Racketeer Influence and Corrupt Organization Act, RICO.  The Third Circuit concluded that the District Court erred in granting summary judgment against Goldenstein on his RICO claim and two of his state law claims.  The case was therefore reversed in order for those claims to be further developed.  Goldenstein v. Repossessors, Inc., 815 F.3d 142 (3rd Cir. 2015).

MALAPPORTIONMENT-POPULATION BASED DISTRICTS

Evenwel v. Abbott, 136 S.Ct. 1120 (2016).  We hold based on constitutional history and the court’s decisions, as well as longstanding practice, that a state may draw its legislative district based on total population.  The court did not resolve whether states may draw districts to equalize voter-eligible population rather than on total population.  It merely said total population is okay to use.

JURISDICTION-VENUE-FORUM NON CONVENIENS-SEXUAL ABUSE CASE

Fessler v. Watchtower Bible and Tract Society, 131 A.3d 44 (Pa. 2015).  This was a case involving sexual abuse which was transferred to York County based upon forum non conveniens.  The court ruled that this was in error.  Chester County is approximately 40 miles from downtown Philadelphia, only about one-third of the distance that the York County witnesses must travel.  The travel obligation is not found to be a big deal.  It was not inconvenience that would have required this case to be transferred from Philadelphia to York County.

PREEMPTION-ERISA-HEALTHCARE PLAN DISCLOSURE

State law requiring disclosure of payments relating to health care claims and other information relating to health care services is preempted by ERISA.  Covered entities must register with the state and submit certain data.  Reporters can be fined for not complying with the statute or regulation.  Disclosure and recordkeeping, however, are also a part of ERISA.  ERISA’s preexisting reporting, disclosure and recordkeeping provisions maintain their preemptive force.  The state statute imposes duties that are inconsistent with the central design of ERISA and therefore is preempted.  Gobeille v. Liberty Mutual Insurance Company, 136 S.Ct. 936 (2016).

ERISA-SUBROGATION-THIRD PARTY SETTLEMENT-MEDICAL EXPENSES

Montanile v. Board of Trustees National Elevator, 136 S.Ct. 651 (2016).  When a third party injures a participant in an employee benefits plan under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq., the plan frequently pays covered medical expenses. The terms of these plans often include a subrogation clause requiring a participant to reimburse the plan if the participant later recovers money from the third party for his injuries. And under ERISA §502(a)(3), 29 U. S. C. §1132(a)(3), plan fiduciaries can file civil suits “to obtain . . . appropriate equitable relief . . . to enforce . . . the terms of the plan.”

 

In this case, we consider what happens when a participant obtains a settlement fund from a third party, but spends the whole settlement on nontraceable items (for instance, on services or consumable items like food). We evaluate in particular whether a plan fiduciary can sue under §502(a)(3) to recover from the participant’s remaining assets the medical expenses it paid on the participant’s behalf. We hold that, when a participant dissipates the whole settlement on nontraceable items, the fiduciary cannot bring a suit to attach the participant’s general assets under §502(a)(3) because the suit is not one for “appropriate equitable relief.” In this case, it is unclear whether the participant dissipated all of his settlement in this manner, so we remand for further proceedings.

Collateral Estoppel-Dragonetti Claims-Rule 11

Perelman v. Perelman, 125 A.3d 1259 (Pa. Super. 2015).  A law firm appealed trial court’s order denying their preliminary objections to complaint filed by Jeffrey E. Perelman and JEP Management, Inc.  Jeffrey sued numerous parties, including the law firm, under the Dragonetti Act.  In a federal court action, Jeffrey had filed an unsuccessful motion for sanctions under Federal Rule of Civil Procedure 11, based upon the same alleged litigation misconduct that underlies the instant Dragonetti claim.  The federal court denied Jeffrey’s motion.  The trial court in this matter ruled that the federal court’s Rule 11 order did not preclude the instant claims, and the Superior Court agreed.

ANTITRUST-STANDING-MONOPOLY-ANTITRUST INJURY

Hanover 3201 Realty, LLC v. Village Supermarkets, 806 F.3d 162 (3rd Cir. 2015).  We conclude that, with respect to the claim for attempted monopolization of the market for full-service supermarkets, the District Court took too narrow a view of antitrust injury. Hanover Realty can establish that its injury was “inextricably intertwined” with Defendants’ anticompetitive conduct. However, as to the claim for attempted monopolization of the market for rental space, the District Court correctly found no standing because Hanover Realty does not compete with Defendants in that market. We also hold that Hanover Realty has sufficiently alleged that the petitioning activity here was undertaken without regard to the merits of the claims and for the purpose of using the governmental process to restrain trade. As such, Hanover Realty can demonstrate that Defendants are not protected by Noerr-Pennington immunity because their conduct falls within the exception for sham litigation. Accordingly, we will affirm in part, vacate in part, and remand to the District Court for further proceedings.

PRISONER LAW-BODY CAVITY SEARCH

The prisoner failed to allege adequately a 1983 claim against certain people that were sued.  As such, summary judgment was properly granted.  The prisoner did not allege facts supporting any of her claims that could justify the addition of liability on the basis of a theory under 1983.  1985 and 1986 claims against the same defendant failed for the same reasons as the 1983 claims, essentially lack of evidence.  The district court properly dismissed the prisoner’s due process and equal protection claims against certain defendants and unnamed defendants based upon transfers between facilities.  The court did find that the trial court erred in its 8th Amendment claim consideration.  While the court upheld the grant of summary judgment on denial of portable water as well as on naked shower walk and other naked exposures and denial of sanitary napkin and medications claims, the district court was reversed with respect to its dismissal of the 8th Amendment claims against unknown defendants that appellant alleged were responsible for these deprivations and the matter was remanded for further proceedings on those claims.  Chavarriaga v. New Jersey Department of Corrections, 806 F.3d 210 (3rd Cir. 2015).

Schmigel v. Uchal, 800 F.3d 113 (3rd Cir. 2015)

This decision held that one of Pennsylvania’s condition precedent to dismissing an action for failure to comply with a certificate of merit requirement, fair notice to a plaintiff, is also substantive law.  It is to be applied in federal court.  Since the requirement is substantive law, the dismissal in this case will be reversed and the case reinstated.  The doctor in question performed a procedure called a laparoscopic adjustable gastric band surgery.  This was intended to limit food intake and help the patient lose weight.  The surgery went awry, and the band was left “free floating in his abdomen.”  Schmigel filed suit against the doctor within Pennsylvania’s statute of limitations for professional malpractice actions.  Federal suit was brought because of diversity of citizenship.  Defendant doctor waited out the 60-day window in which plaintiff may file a certificate of merit after initiating suit to sustain a malpractice action under Pennsylvania law.  On the 69th day, the doctor filed a motion to dismiss.  The district court granted the motion and dismissed the claim.  The lower court never addressed plaintiff’s argument that Pennsylvania’s notice requirement as a condition of dismissal also applied in federal court.  The Third Circuit agreed.

INDIVIDUALS WITH DISABILITIES EDUCATION ACT-INJUNCTION DURING PENDENCY OF CLAIM

D.N. v. New Jersey Department of Education, 801 F.3d 205 (3rd Cir. 2015).  The United States Court of Appeals for the Third Circuit remanded the case to the trial court with an injunction intact for additional fact-finding.  The lower court had granted a preliminary injunction under the so-called “stay-put” rule of the Individuals with Disabilities Education Act.  The injunction allowed the student to attend classes with regular-education students during pendency of the case.

PRISONER LAW-CRUEL AND UNUSUAL PUNISHMENT

Lopez v. Pennsylvania Department of Corrections, 119 A.3d 1081 (Pa. Cmwlth. 2015) (en banc decision).  Lopez is a capital case prisoner.  The court found that his claim of solitary confinement conditions does not satisfy the liberty interest requirement of the 14th Amendment but may raise an 8th Amendment claim.  Thus, the court sustained the Department of Corrections’ preliminary objections as to Lopez’s 14th Amendment due process claim because Lopez failed to demonstrate that he had a protected liberty interest in where he was housed.  A claim of 24-hour lighting causing sleep deprivation, however, may raise an 8th Amendment claim.  He has alleged actual physical and psychological harm as a result of the constant cell lighting.

ANTITRUST-RULE OF REASON-AGREEMENT TO DELAY ENTRY IN THE MARKET

Dismissal of case reversed under Sections 1 and 2 of the Sherman Act.  The case involved a settlement in which a patentee drug manufacturer agreed to relinquish the right to produce an authorized generic drug to compete with first-filing generic drug during generic statutorily guaranteed 180 days of market exclusivity.  The court found this could violate the antitrust laws under the rule of reason approach.  King Drug Company v. Smithkline Beecham Corp., 791 F.3d 388 (3rd Cir. 2015).

FAIR DEBT COLLECTION PRACTICES ACT-MATERIALITY-FALSE STATEMENT

The question is whether a false statement in a communication from a debt collector to a debtor must be material in order to be actionable under the Fair Debt Collection Practices Act.  The court concluded that materiality is required.  In the statement in this case, in any event, was not material and involved a rather minor matter.  Jensen v. Pressler and Pressler, 791 F.3d 413 (3rd Cir. 2015).

CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT-OWNER-PUBLIC WORKS PROJECT

Clipper Pipe and Service v. Ohio Casualty Insurance, 115 A.3d 1278 (Pa. 2015).  Under the Contractor and Subcontractor Payment Act, an owner is not one involving a public works project.  Therefore CASPA does not apply to a construction project where the owner is a government entity.  This case was certified to the Pennsylvania Supreme Court by the United States Court of Appeals for the Third Circuit.  The government is not directly involved in the present dispute.

RELEASE-WHITE WATER RAFTING

New York resident signed an exculpatory release with a Pennsylvania corporation engaged in the business of whitewater rafting in Pennsylvania.  The New York resident was injured while whitewater rafting.  Pennsylvania law applies.  Further, the patron cannot invoke economic compulsion against Whitewater.  The release is valid and applies.  The activity is considered an inherently dangerous sports activity.  There is no public policy against a release in these circumstances.  Our Supreme Court discussed economic duress in resolving whether an exculpatory clause should be construed as a contract of adhesion.  A non-contracting party invoked duress.  The court said that a non-contracting party could not invoke duress, especially where they had a very small stake.  The release is enforceable.  The exculpatory clause addressing negligence does not contravene Pennsylvania’s public policy.  McDonald v. Whitewater Challengers, Inc., 116 A.3d 99 (Pa. Super. 2015).

ASBESTOS-WARNING

Amato v. Bell and Gossett, 116 A.3d 607 (2015).  This case involved a verdict on asbestos cases involving mesothelioma.  The court first addressed the question of expert testimony.  It was claimed that the trial court erred by failing to consider payments plaintiffs received from settling non-party tortfeasors.  The trial court did not err in declining to offset the jury’s verdict based on the recoveries obtained from non-party tortfeasors.  No offset is required by non-parties not determined to be joint tortfeasors.  The court also discussed the effect of the Tincher opinion from the Pennsylvania Supreme Court.  Tincher returned consideration of failure to warn instruction incorporating considerations of reasonableness to the finder of fact.  The question was whether the lower court gave a correct instruction on failure-to-warn.  The defense here was not that the product was not unreasonably dangerous.  Rather, the claim was that the product was not dangerous at all.  Based on that argument, the defendant would have no need for a state-of-the-art instruction as to the foreseeability of the risks or the reasonableness of his conduct.  Under the defendant’s theory, there was no risk and warnings were not required.  Therefore the manufacturer/seller was not prejudiced by the failure-to-warn instruction issued by the trial court.  Even if the user here was “sophisticated,” defendant did not discharge its duty under Section 388 Restatement of Torts in that it failed to act in a manner reasonably calculated to assure either that the necessary information would be passed on to the ultimate handlers of the product or that their safety would otherwise be attended to.  The court did not err in refusing the instruction.  Included in a wrongful death award may be recovery for loss of post-death services, including society and comfort.  A loss of consortium claim is intended to compensate a survivor spouse for loss of her services, society and conjugal affection while her spouse was still living, yet suffering from the injury in question.  Hence there is no duplication of damages as one award is for pre-death loss and the other post-death.

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