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    COVID-19-DEATH CASE

    September 26th, 2022 by Rieders Travis in Medical Malpractice

    Testa v. Broomall, Pa. Civil No. 21-5148-KSM (E.D. Pa. August 18, 2022) (Marston, J.)  COVID-19 death case in a nursing home.  Motion to dismiss denied.  The claim was based upon the fact that although decedent tested positive for COVID-19, she was permitted to travel out of her room to interact with other residents and to get her nails done while she was placed in isolation.  She had a “window visit” with her mother, who noticed she was having difficulties.  She eventually passed away from the infection.  The defense was the Pennsylvania Emergency Management Services Code.  The court looked at the PREP Act.  The defendant argued that PREP immunized  the facility from liability, or in the alternative that the PREP Act preempts the claims.  Although the PREP Act immunizes individuals who use covered countermeasures, it does not shield individuals who failed to use covered countermeasures.  The claims all relate to non-use of covered countermeasures.  Therefore, the PREP Act does not shield Broomall from liability.  To the extent that the nursing home argues the PREP Act completely preempts any state law claims, including negligence claims, the argument fails.  The Third Circuit addressed…

    MEDICAL MALPRACTICE-PRIVILEGE

    September 26th, 2022 by Rieders Travis in Medical Malpractice

    - Lahr v. Young, Pa. Civil No. 2021-C-0010 (C.P. Lehigh June 17, 2022) (Caffrey, J.)  Motion to compel by plaintiff granted by the court.  At issue were patient safety reports regarding plaintiff Hannah Lahr and Medina-Diaz.  The cases involved were medical malpractice.  Plaintiff sought production of patient safety reports regarding the two individuals.  Defendants contend that the reports were privileged under the Mcare Act and the Peer Review Protection Act.  The court conducted an in camera review.  The court defined a patient safety event as something requiring a patient safety report to the patient safety office.  Healthcare workers in training use factual information only when submitting an event report.  Opinions are not permitted.  However, the factual information a healthcare worker puts in an event report is not intended to supplant the patient’s medical records.  Therefore, factual information contained in the event report should also be contained in the patient’s medical records.  The patient safety officer’s role is defined in terms of the investigation.  The three event reports regarding events in this case were duly submitted during the course of an investigation.  The patient safety office and front line staff and…

    DRAM SHOP ACT-PREEMPTION OF NEGLIGENCE CLAIM

    September 26th, 2022 by Rieders Travis in Negligence

    Murray v. Frick, et al., Pa. Civil No. 2021-C-1254 (C.P. Lehigh May 2, 2022) (Caffrey, J.)  There is no Pennsylvania appellate decision addressing the precise issue of whether § 4-497 of the Dram Shop Act preempts a common law negligence claim against a licensee, and there is disagreement among the Common Pleas Courts on this issue.  The Superior Court has clearly described the section as liability-limiting.  It is clearly a provision designed specifically to shield licensees, except in those instances where a patron served was visibly intoxicated.  Certain Pennsylvania trial courts have determined that the affect of this section is to limit the liability of licensees to third persons to the sale of alcohol to visibly intoxicated persons.  The court finds the reasoning employed by these common courts persuasive in view of how the Pennsylvania Superior Court has described the purpose and intent of § 4-497.  The section is limiting in that it protects the licensee from liability to third parties unless the patron was visibly intoxicated.  It operates to preempt the common law negligence action against the licensee.  Therefore, these common law sections of the complaint will be stricken.

    PIERCING THE CORPORATE VEIL-CORPORATE LAW

    September 26th, 2022 by Rieders Travis in Miscellaneous

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

    PROCEDURE-JURISDICTION-FOREIGN NATIONALS

    September 26th, 2022 by Rieders Travis in Procedure

    Aldossari v. Ripp, 2022 U.S. App. LEXIS 25563 (3rd Cir. September 13, 2022) (Jordan, C.J.)  In this dispute, defendant Saudi Arabia was one of the parties sued along with the Crown Prince.  The court found the Foreign Sovereign Immunities Act applied and there was no waiver of sovereign immunity.  A foreign state is not immune from any act based upon commercial activity.  The court found that this exception did not apply.  The place of ultimate contractual obligation was in Saudi Arabia.  In sum, the few and thin strands of this case that pass through the United States are insufficient to justify exercising jurisdiction under the FSIA over the claims against Saudi Arabia and Saudi Aramco.  As to the Crown Prince, the court did not think that he had any connection with Pennsylvania supporting a claim.

    CIVIL RIGHTS-TITLE VII-AMERICANS WITH DISABILITIES ACT-FAMILY MEDICAL LEAVE ACT

    September 26th, 2022 by Rieders Travis in Civil Rights

    Canada v. Samuel Grossi & Sons, Inc., 2022 U.S. App. LEXIS 25846 (3rd Cir. September 15, 2022) (McKee, C.J.)  Joseph Canada appeals the District Court's dismissal of his retaliation claims against Samuel Grossi and Sons, Inc. ("Grossi"), his former employer. The claims were brought under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 1981, the Americans with Disabilities Act ("ADA"), and the Family Medical Leave Act ("FMLA"). Although Grossi argued that it fired Canada for misconduct that was discovered during a search of his cellphone, Canada claims Grossi's true motive for firing him was retaliation for actions that were protected under the aforementioned statutes. For the reasons that follow, we will reverse the District Court's grant of summary judgment to Grossi on Canada's retaliation claims arising from his final termination and remand for further proceedings consistent with this opinion. For Canada to survive summary judgment at the third McDonnell Douglas step, he must show that the evidence would allow a jury to reasonably "(1) disbelieve [Grossi's] articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of [Grossi's] action." The evidence here could allow a reasonable…

    FAIR LABOR STANDARDS ACT-PROTECTED ACTIVITY-ABOUT TO TESTIFY-SUBPOENA

    September 26th, 2022 by Rieders Travis in Civil Rights

    Uronis v. Cabot Oil & Gas Corp., 2022 U.S. App. LEXIS 25727 (3rd Cir. September 14, 2022) (Restrepo, C.J.)  Appellant Matthew Uronis asserts that his job application was denied because his prospective employer anticipated that he would soon be filing a consent to join a then-pending putative collective action under the Fair Labor Standards Act ("FLSA").  The FLSA prohibits discrimination against an employee because the employee has engaged in protected activity. 29 U.S.C. § 215(a)(3). Protected activity includes having "testified" or being "about to testify" in any FLSA-related proceeding. Id.  In this case we address whether 29 U.S.C. § 215(a)(3), also known as Section 15(a)(3), applies where an employer anticipates an employee will soon file a consent to join an FLSA collective action—but no such "testimony" has yet occurred or been scheduled or subpoenaed. The District Court concluded that being "about to testify" under Section 15(a)(3) requires being "scheduled" or subpoenaed to do so. On that basis, because Uronis did not plead that he was scheduled to testify, the District Court granted Appellees' motion to dismiss Uronis' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). It did not explicitly interpret the meaning of "testify" under Section 15(a)(3). But, by…

    FAIR DEBT COLLECTION PRACTICES ACT-PENNSYLVANIA USURY LAWS

    September 26th, 2022 by Rieders Travis in Miscellaneous

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

    STANDING-LEGISLATORS-MUNICIPAL ENTITIES

    September 26th, 2022 by Rieders Travis in Miscellaneous

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

    TAXATION-ONLINE SALES, TAXATION OF

    September 26th, 2022 by Rieders Travis in Miscellaneous

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

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