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Posts Tagged ‘Pennsylvania’

Superior Court Erodes Pennsylvania’s Fair Share Act

Posted on: May 17th, 2021

By: Erin Lamb

In 2011, Pennsylvania enacted the “Fair Share Act,” Senate Bill 1131. The bill substantially limited the applicability of joint and several liability in civil cases. There is no question that it was the goal of the legislature and then-Gov. Corbett for the bill to do exactly that. As enacted and as applied since it went into effect, the Act rendered individual defendants who were found to be less 60% liable responsible only for their share of damages. (Individual defendants who were found to be 60% liable or more remained subject to joint and several liability.)

Now, a two-member panel of Pennsylvania’s intermediate appellate court has thrown this application of the Act into question. The opinion written by Judge Panella and joined by Judge McCaffery in the matter of Spencer v. Johnson, et al. (2040 EDA 2019) opened the door to interpreting the Act in such a way that it only applies when there is a finding that the Plaintiff is comparative negligent.

The Spencer opinion adopts the rationale that in the absence of a finding that Plaintiff is comparatively negligent, joint and several liability remains the law of the land. This theory deduces that because the Act addresses situations where a plaintiff is found more than 50% negligent (Plaintiff barred from recovery) and where a single Defendant is more than 60% negligent (joint and several liability applies), but does not address situations where a Plaintiff is not found negligent, that the Act is only intended to apply to when a Plaintiff is found comparatively negligent.

 The promotion of this rationale was not germane to the subject issues on appeal, suggesting that sections of the Court were eager to place this rationale front and center for consideration. The interpretation has great consequences for any matter where Plaintiffs are rarely, if ever, found negligent, such as medical malpractice claims.

The appellees have already applied for reargument en banc before the Superior Court, with pending applications for leave to file amicus briefs filed by no fewer than 23 industry groups and special interest groups. The Court’s decision is due June 1, 2021.

For more information, please contact Erin Lamb at [email protected].

PA’s Prevailing Wage Law Shows Its Teeth

Posted on: May 7th, 2021

By: Joshua Ferguson and Courtney Mazzio

Pennsylvania’s Prevailing Wage Law was enacted in 1961 to protect construction workers from out-of-state competition, mandating those contractors pay the wages that “prevail” in each region on all government construction projects more than $25,000. 

Violations of this state labor law has caught the attention of the Attorney General in Pennsylvania, who has used the violations as justification to file criminal charges.  Scott Good, owner of Goodco Mechanical, Inc., just received a two-year prison sentence on April 26, 2021, for his failure to pay approximately $65,000 in prevailing wages to skilled laborers hired as part of a $16 million project to build a new PennDOT district headquarters. Charges were also filed earlier in April against major PennDOT contractor Glenn O. Hawbaker Inc. for allegedly shortchanging workers out of some $20 million worth of pay and benefits in violation of the statute. The trend has also made its way to local prosecutors in Pennsylvania, who have filed similar charges against construction industry employers and who have created labor divisions to investigate wage theft and worker misclassification.  

This trend highlights a new risk for employers in Pennsylvania – criminal charges for civil violations. Although construction industry employers are the current targets, there is no reason to think that this trend will grow to include all employers.  

For more information, please contact Josh Ferguson at [email protected] or Courtney Mazzio at [email protected].

A Bridge Too Far – 3d. Circuit Holds PA Safety Regulations Inapplicable to Delaware River Joint Commission Construction

Posted on: January 28th, 2021

By: Sean Riley

In Del. River Joint Toll Bridge Comm’n v. Sec’y Pa. Dep’t of Labor & Indus., No. 20-1898, 2021 U.S. App. LEXIS 895, at *2 (3d Cir. Jan. 12, 2021) the Third Circuit Court of Appeals recently held that Pennsylvania had ceded its authority to enforce building safety regulations for the construction of an administrative office in Bucks County, Pennsylvania.

Nearly 100 years ago, Pennsylvania and New Jersey enacted laws creating the Delaware River Joint Toll Bridge Commission, authorizing the Commission to not only administer, operate and maintain toll bridges crossing the Delaware River but to also acquire real property and to make improvements thereon to the extent necessary to discharge its duties. In 2017, the Commission undertook a project to replace the Scudder Falls Bridge that connects Bucks County, Pennsylvania with Mercer County, New Jersey. As part of that project, the Commission purchased ten acres of land near the bridge on the Pennsylvania side of the river and broke ground on the Scudder Falls Administration Building, which would house the Commission’s staff in a single location. A year later, inspectors with the Pennsylvania Department of Labor took issue with the fact that the Commission had proceeded with construction without having applied for a building permit, as required under the Department’s regulations. The Department threatened to issue a stop-work order for want of a permit; however, the Commission maintained that it was exempt from Pennsylvania’s regulatory authority and continued with construction. Undeterred, the Department turned its attention to the Commission’s elevator subcontractor, threatening it with regulatory sanctions for its involvement in the project. The Commission filed a complaint seeking a declaratory judgment that the Department lacked authority to enforce Pennsylvania’s building regulations pursuant to the inter-state compact.

The District Court for the Eastern District of Pennsylvania granted the Commission’s request, holding that the Commission’s new administrative office was not subject to Pennsylvania’s building regulations as the authority to enforce such regulations had been ceded in the compact between the states. On appeal, the Third Circuit affirmed, establishing precedent that such buildings and other construction projects engaged in by the Commission and its contractors are wholly exempt from state safety regulations.

For more information, please contact Sean Riley at [email protected].

Sudden Emergency Defense- Suddenly disappears in Pennsylvania?

Posted on: January 7th, 2021

By: Josh Ferguson

The Pennsylvania Supreme Court recently issued an opinion that appears to limit, if not eliminate, the sudden emergency defense in motor vehicle accident claims. Graham v. Check, No. 42 WAP 2019 (Pa. Dec. 22, 2020).

In that matter, Plaintiff was a pedestrian who was struck and seriously injured by Defendant. In the case the Defendant driver used the “sudden emergency” defense that he claims precluded him from braking in time to prevent hitting the man. The trial court provided jury instructions regarding Sudden Emergency Doctrine.

The Pennsylvania Supreme Court found that the trial court in this case erred in instructing the jury on the sudden emergency doctrine as evidence of darkness, an obstructed view, and a lack of evidence of any overtly careless behavior. 

On behalf of the 5-2 majority, Justice Wecht noted that the sudden emergency doctrine “should not be understood as a ‘defense’ in the common sense, and finds it ill-advised to use the word ‘defense’ in sudden emergency [jury] instructions in future cases, notwithstanding that the term features in the current suggested standard jury instruction. “We cannot conclude that the error was harmless,” Wecht said. “Thus, Graham is entitled to a new trial untainted by the sudden emergency instruction. Accordingly, we reverse the order of the Superior Court arming the trial court’s decision to instruct the jury on the sudden emergency doctrine, and we remand for a new trial.”

Future cases will determine whether this has completely eliminated use of the “sudden emergency” defense in Pennsylvania, but there is no doubt it is a change and should be factored into an analysis of defenses in a motor vehicle accident claim.

If you have questions or would like more information, please contact Josh Ferguson at [email protected].

Philadelphia and Pennsylvania Announce New “Safer at Home” Restrictions

Posted on: November 18th, 2020

By: Justin Boron

The City of Philadelphia and the Commonwealth of Pennsylvania announced new measures this week aimed at curbing the spike in COVID cases in the region, but neither appear to be ready to initiate a broad-based shutdown like the one that began in March earlier this year.

Set to take effect Friday, the City of Philadelphia’s “Safer at Home” restrictions will have the most immediate effect on businesses and employers. Under them, the following business activities are prohibited:

  • High schools and colleges must move to online instruction only, with the exception of clinical instruction for students in health sciences. 
  • Indoor dining at restaurants and other food service businesses.
  • Theaters, including movie theaters, and other performance spaces. 
  • Bowling alleys, arcades and game spaces.
  • Museums.
  • Libraries.
  • Casinos.
  • Recreational activities and sports for youth, community groups, and schools. 
  • Gyms and indoor exercise classes. (Exercise groups and classes may continue outdoors.)
  • Senior day services (senior centers and adult day care centers) remain closed.

Additionally, the Philadelphia mayor’s order modifies restrictions on restaurants, retail, and office businesses:

  • Restaurants offering outdoor dining must reduce table sizes to four people and limited to members of the same household
  • Retail stores and indoor malls have a max density of 5 people per 1,000 square feet.
  • Offices are permitted to have only employees that cannot work remotely.

The Commonwealth is taking a more targeted approach, but has mandated mask-wearing both inside and outside. Additionally, travelers in and out of Pennsylvania are encouraged to obtain a negative COVID test or quarantine for 14 days. But Pennsylvania officials acknowledged that they do not plan to actively enforce the guideline.

If you have questions or would like more information, please contact Justin Boron at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

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