Today the PA Commonwealth Court issued a decision affirming an order entered by the Philadelphia Court of Common Pleas granting summary judgment in favor of Thomas Jefferson University dismissing a Whistleblower Lawsuit.
In affirming the lower court the Commonwealth Court found:
- The former employee failed to show that the conduct that she complained about did not constitute a report of wrongdoing under the Pennsylvania Whistleblower Law;
- Even if the conduct fell within the Law, the former employee failed to show a causal connection between her firing and her complaint.
Just today, the Pennsylvania Superior Court issued an opinion in Knight v. Springfield Hyundai, reversing a Philadelphia Court of Common Pleas ruling granting preliminary objections which compelled arbitration and dismissed claims that Knight filed under the Unfair Trade Practices and Consumer Protection law (“UTPCPL”)
Knight filed a lawsuit arising out of her purchase of a motor vehicle from Springfield Hyundai. Springfield Hyundai moved to compel arbitration based upon an arbitration clause contained in a buyers order. The Court granted the Motion to Compel and also ruled on the substantive Preliminary Objections which included a demand to dismiss the UTPCPL claim based upon the Economic Loss Doctrine and the Gist of the Action Doctrine.
On Appeal the Superior Court reversed the Court of Common Pleas and found:
- The arbitration clause in the buyers order was not binding since the parties entered into a Retail Installment Sales Contract (“RISC”) which contained an integration clause and the RISC did not contain an arbitration clause. Thus, the court found that the lower court committed error in compelling arbitration;
- The Court further found that once the Lower Court found that the case was subject to arbitration that the Lower Court no longer had jurisdiction to rule on the remaining preliminary objections;
- Finally, the Court found that the Lower Court committed an error of law in dismissing the UTPCPL claims under the Gist of the Action Doctrine and the Economic Law Doctrine.
The Case has been remanded to the Court of Common Pleas for further proceedings.
On November 1, 2013, the American Arbitration Association (“AAA”) issued a press release indicating that it promulgated new rules setting forth an optiona arbitration appeal process.
Pennsylvania has adopted the Uniform Arbitration Act, which provides for Judicial and Common Law arbitrations. Judicial arbitrations occur when the amount in controversy in a lawsuit is less than $50,000. In a Judicial arbitration a party has an absolute right to appeal and on appeal it is either a bench or jury trial de novo. Common Law arbitrations occur when by agreement the parties have agreed to arbitrate their disputes. Typically, the contract would contain an arbitration clause. In common Law arbitrations, 42 Pa. C.S. A. §7341 provides that an arbitration decision is binding and cannot be set aside “unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award”. In essence it is very difficult to set aside an a decision of an arbitrator.
The revised AAA rules now provide for an optional appeal process from a AAA arbitration award. In summary:
- Effective November 1, 2013 there is an optional appeal process;
- The parties must agree to the appeal process. The agreement can be by stipulation or it can be contained in the initial arbitration agreement;
- The appeal process provides that an appeal is filed to an appeal tribunal;
- The appeal tribunal has authority to review whether there was:
- o “An error of law that is material and prejudicial”; or
- o “Determinations of fact that are clearly erroneous”.
For a more detailed summary of the optional appeal process, see the overview that was issued by AAA.
Now when you are drafting contracts that contain arbitration clauses you might want to consider adding a clause regarding the optional appeal process. The revised AAA Rules include samples of such clauses. Why would you want to include that clause? Well, if you have chosen to include AAA arbitration process you want to make sure the decision is fair and reasonable. If you do not include the appeal process, then you are bound by the arbitrator’s decision even if arbitrator committed an error of law. On paper, the optional appeal process makes sense. The question to be answered is whether the appeal panel will reverse arbitrators? The panel is selected from the same group of arbitrators that work for AAA. So if the panel reverses an arbitrator will it be viewed as criticizing one of their own? I guess we will have to wait and see.
Those that practice in Federal Court should note that amendments to Federal Rules of Civil Procedure 37 and 45 take effect on December 1, 2013. In summary, the amendments make the following changes:
- They change the Court that issues a subpoena. The amended rules require the subpoena to be issued by the Court where the case is filed. Prior to the amendment the subpoena was issued by the Court where the party to be subpoenaed was located;
- If there are disputes regarding enforcement of the subpoena there is a mechanism for allowing the transfer of the dispute to the Court where the case was filed;
- There is a clarification as to who can be compelled to appear in court. The amendment makes clear that there is a geographical limitation regarding compelling a witness to appear in Court.
- The amendment reemphasizes the requirement to provide notice to opposing counsel prior to serving a subpoena for production of documents.
There are two takeaways from the amendments. First, if you need an out of state witness for trial you might want to evaluate which district the lawsuit is filed. Otherwise, you might have to utilize a video deposition. Second, the U.S. Supreme Court with the amendments had an opportunity to clarify the notice requirement prior to issuance of a subpoena for production of documents. It is a generic requirement and there is no time frame as to how much notice must be given. Additionally, there is no guidance as to what happens if opposing counsel objects to the subpoena. Whose burden is to have the objections determined? Unlike the Pennsylvania Rules of Civil Procedure, the Federal Rules do not set forth any procedure. My recommendation is that next time they should follow Pennsylvania and set forth a detailed procedure.
On November 19, 2013, the Pennsylvania Supreme Court approved an amendment to Pa Rules of Appellate Procedure 1973. Prior to the amendment, a party had an absolute right any time prior to argument to discontinue an appeal. Now after the amendment the time period to discontinue an appeal has been shortened. The amended rule now provides that an appeal cannot be unilaterally discontinued more than 14 days after the filing of a brief by the Appellee.
The amendment takes effect on December 20, 2013. After that date, if you represent an Appellant, you need to promptly review the Appellee’s brief. You only have 14 days to be able to discontinue the appeal as of right. Otherwise, you must petition the court.
My guess is that appeals were being withdrawn on the eve of argument which is prejudicial to the Appellee and/or the Court who prepared for the argument.
On a daily basis the Pennsylvania Superior Court issues opinions. Copies of the opinions are available on the Unified Judicial System of Pennsylvania Website. The question is why are so many of them marked “unpublished”?
A review of the opinions issued in the last week of September reveals that there were over 100 decision issued and of those decisions only 6 were published or reported? The remaining 94 were unpublished or unreported.
Pursuant to Superior Court Operating Procedures (“IOP”) 65.37, with limited exceptions, a party is prohibited from citing or relying upon an unpublished Superior Court Opinion. I raise the question again. So why are so many Pa Superior Court decisions marked “unpublished”? Are they so fact specific? Are the opinions not well written or well-reasoned? I reviewed them and I say not! In fact a comparison of those that are marked “published” as compared to those that are marked “unpublished” shows that there if very little, if any, difference between the cases.
The same IOP rule 65.37 permits a party to file a Motion to have the opinion published. Our appellate court decisions guide us in the practice of law. If we cannot cite to those decisions then we lose the ongoing insight from our courts. So next time you receive an “unpublished” opinion, please file a Motion with the Court to publish the decision. Some day you might be wanting to cite to a case and had wondered why Counsel on appeal failed to file such a Motion.
Yesterday, in a case of first impression, the Pennsylvania Commonwealth Court ruled that the Pennsylvania Senate Caucuses were entitled to Sovereign Immunity on a breach of contract claim. As background information, Precision Marketing Inc. (“Precision”) entered into a contract with the Republican Senate Caucus to provide consulting services. The Senate Republican Caucus terminated the contract prior to the expiration of the term and Precision sued for $1,223,402.88.
Initially, the lawsuit was filed before the Board of Claims. The Board of Claims determined that it did not have jurisdiction and transferred the case to the Commonwealth Court. The Commonwealth Court found that the Republican Senate Caucus is part of the Senate and as such is the Commonwealth and entitled to Sovereign Immunity.
I would expect that Precision will file a Petition for Allowance of Appeal. I will keep you posted if the Petition is granted by the Pa Supreme Court.
All football fans know that our favorite players are one hit away from ending their careers. Concussions are rampant in the NFL along with hockey and other contact sports.
It was announced yesterday that a settlement was reached in the lawsuit that was filed on behalf of retired NFL payers against the NFL which has been known as the “Concussion Injury Litigation”. On August 29, 2013 the Honorable Anita B. Brody, U. S. District Judge for the Eastern District of Pennsylvania entered an Order regarding the settlement. The Order was more like a status report rather than an Order approving the settlement. The settlement was a result of a mediation that was ordered by Judge Brody. The mediation was conducted by the Honorable Layn Phillips.
In the Order Judge Brody reported the following:
- That the parties had entered into good faith negotiations with the assistance if the mediator Judge Phillips;
- That the Court previously opined that it was in the best interest of all parties to reach a negotiated settlement;
- The settlement will provide for a payment by the NFL of $765,000,000 to fund medical exams, concussion-related compensation and a program for medical research;
- The NFL will pay court-approved attorneys’ fees;
- The Parties will be required to file a Motion for approval of the proposed settlement;
- The Court reserved judgment on the fairness, reasonableness and adequacy of the settlement;
Kudo’s to Judge Brody! This would have been very contentious litigation. Families of NFL players who have already suffered would have suffered more with depositions and a trial. This case is another success story for the use of mediation. If the right mediator is selected and the parties keep an open mind even the most difficult cases, such as the NFL concussion lawsuit can be settled. More importantly, the assigned Judge needs to strongly encourage mediation. If, as was done by Judge Brody, the Court encourages or orders the parties to mediation then there is a good chance that it will be successful. Finally, the parties should be applauded for their good faith participation in the mediation. Unfortunately, sometimes parties or their counsel think that agreeing to proceed to mediation is a sign of weakness. It is not. In my opinion it is a sign of strength that the parties and counsel are willing to invest the time to reach a resolution of their dispute.
Heirs of a descendant were not required to arbitrate a wrongful death lawsuit against a Nursing Home. In a case of first impression the Pennsylvania Superior Court recently issued its pronouncement in Pisano v. Extendicare Homes Inc.. The issue before the Court was whether litigants in a wrongful death action are bound by an agreement to arbitrate previously executed by the Descendent
As background information Vincent Pisano was a resident at Belair Health and Rehabilitation Center (“Nursing Home”). Prior to his admission his daughter as power of attorney executed an admission agreement which provided for all disputes to be resolved through binding arbitration. Upon Mr. Pisano’s death his heirs filed a wrongful death lawsuit against the Nursing Home. In response the Nursing Home filed Preliminary Objections asserting the existence of the arbitration agreement and arguing that the case must proceed to arbitration.
The Lower Court denied the Nursing Home’s Preliminary Objections and an appeal followed. On appeal the Pa Superior Court affirmed the Lower Court. In doing so the Court ruled:
1. “Pennsylvania’s wrongful death statute creates an independent action distinct from a survival claim that, although derived from the same tortious conduct, is not derivative of the rights of the descendant.”
2. The contractual agreement to arbitrate was not binding on the heirs who did not sign the agreement.
The Pa Superior Court in reaching its ruling reiterated the policy of the Commonwealth of Pennsylvania that Courts strongly favor agreements to arbitrate disputes. However, the Court did note that those agreements are to be strictly construed. We will now have to see if this case provides any light at the end of the tunnel for the Plaintiffs Bar. Does it represent a change regarding the enforceability of agreements to arbitrate or will it be narrowly construed to facts similar to this case. Time will tell. Also, I expect that the Nursing Home will be filing a Petition for Allowance of Appeal.
I have practiced in Montgomery County Court of Common Pleas for over 30 years. I wish I had a dollar for every time an out of County lawyer asked me the question: Am I required to file a Brief in Montgomery County? Until this past year the answer was no. However, the local rules have been revised and now there is a mandatory briefing requirement when filing or responding to the following:
- 1. Preliminary Objections
- 2. Motions For Judgment on the Pleadings
- 3. Motions for Summary Judgment
- 4. Petitions to Transfer Venue based upon Forum Non Conveniens
- 5. Petition to Open a Default Judgment
- 6. Petition to Open a Judgment of Non Pros
When required, briefs must be filed with the pleading or response to the pleading.
Other than the aforementioned filings a brief is not required to be filed. However, the Court will accept briefs.