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Posts Tagged ‘Pennsylvania’

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].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Let Us Eat Cake (and Work)! — A Federal District Judge Declares Pennsylvania’s Capacity Restrictions and Business Closures as Violations of the First and Fourteenth Amendments

Posted on: September 21st, 2020

By: Ashley Hobson

On Monday, September 14th a federal judge in the Western District of Pennsylvania struck down the Governor’s restrictions on the size limitation of persons at gatherings and the mandatory closure of “non-life sustaining” businesses. The restrictions, which were similar to those across many states, have since been lifted as all counties entered the “Green” phase of re-opening on July 3rd.  Although District Judge William Stickman IV labeled the Governor’s restrictions as “well intentioned,” he also opined that “good intentions towards a laudable end are not alone enough to hold governmental action against a constitutional challenge.”


Like most states across the country, Pennsylvania initiated strict protocols in the hopes of containing the novel coronavirus outbreak. Due to the virus’ varying impacts across the state, counties were placed under Stay-at-Home Orders on different dates, and the statewide Stay-at-Home Order was implemented on April 1st.

The Governor implemented a three-phase re-opening process: Red, Yellow, and Green. In the Red Phase, only life-sustaining business were permitted to remain open. Further, large gatherings were completely forbidden, and restaurants were limited to carry-out and delivery. In the Yellow Phase, gatherings were limited to no more than 25 persons, with many businesses remaining closed. As of July 3, 2020, every county moved to the Green Phase. Although the Green Phase reopened most business establishments, there are still capacity limitations for both indoor and outdoor activities.

Constitutional Violations:

On May 7th, the Plaintiffs filed their Complaint, arguing the Governor’s “numeric limitation on the size of gatherings” violated the First Amendment, while the Stay-at-Home Orders and the mandatory closure of “non-life-sustaining” business violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

In addressing the First Amendment violations, Judge Stickman held the capacity restrictions were not only far too broad and not scientifically linked to achieve the State’s goal of reducing the spread of Covid-19, but that the capacity limitation does not “address the specific experiences of the virus across the Commonwealth.”

The Court also agreed that the Stay-at-Home Orders and business shutdowns were also unconstitutional. Similar to the capacity restrictions, Orders were far too broad, open-ended and the State has not proved the “burden to liberty is no more than reasonably necessary to achieve an important government end.”

How Does this All Relate to Employer?

For employers, the Court’s reasoning on the unconstitutionality of mandatory business closures is enlightening. The Court agreed that certain components of the state’s mandatory business shutdown orders violated the Fourteenth Amendment’s Due Process and Equal Protection Clauses. The closing of “non-life-sustaining businesses” limited a person’s “pursuit of his or her chosen profession free from governmental interference.”  Judge Stickmen held, that is uncontested that the Fourteenth Amendment’s Due Process Clause recognizes an interest to pursue an occupation, but the true question is not about the right to work, but how much the State can infringe upon that right. In Pennsylvania, the Governor’s initial Order mandating the closures still has no definitive end date, which would permit the State to reclose businesses if it deems it necessary. Even though the State argued that the mandatory closures were temporary and many businesses has since reopened, the damage has already done.

Even if the restrictions were temporary, the Court found the State’s reasoning for labeling certain businesses as “non-life-sustaining” versus “life-sustaining” was done without creation of a set policy or even creating a definition of the term that could be agreed upon by all members of the State’s task force that initiated the closures. Rather than creating a uniform definition, the task force used “their commonsense judgement.” Although business owners were permitted to file waivers if their business was mistakenly classified as “non-life-sustaining,” the State closed the waiver process on April 2, 2020, and left many businesses without an option to appeal the designation. The arbitrary nature of the state’s designation left many business owners confused as to their status as “life-sustaining” or not.

The business closure provisions also violated the Fourteenth Amendment’s Due Process Clause in two ways. First, due to the States grouping of certain counties into regions for the purposes of implementing the phased re-opening plan, similarly situation businesses were not treated equally due to their location in a different region. Secondly, similarly situated businesses in the same region, were also treated unequally. The second argument is exemplified by the State’s permission of retailers such as Lowes and Home Depot to remain open during the pandemic. As many are aware, Lowes and Home Depot sell furniture, appliances, and various other products. Although they were permitted to remain open, smaller retailers that sold similar products were required to close. The only difference between Lowes and a smaller retailer that offers the same products is the size of the retailer, and that alone is insufficient to pass constitutional muster.

Although the Court agreed that States are permitted to implement certain regulations based on county and/or population density, the State cannot arbitrarily group businesses into categories of “non-life-sustaining” vs. “life-sustaining” without a measurable definition. Lastly, a State’s decision to close businesses must rationally relate to the stated purpose. Thus, there should not be a distinction between larger and smaller retailers who offer the same merchandise. The Court found that, although the State had good intentions, its implementation was far too arbitrary and not rationally related to achieve it goals.

What’s Next?

Judge Stickman’s ruling is hot off the press, and, although the State plans to appeal the District Court’s decision, it is unclear if the State will be successful and what the ruling may mean for other Pennsylvania businesses that remain closed. As these are very real issues to navigate, please contact one of our Labor and Employment team members to discuss the next steps in more detail.

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

Pennsylvania Opens Flood Gates to Unlimited Video Footage Discovery Requests

Posted on: August 28th, 2020

By: Erin Lamb

The Pennsylvania Supreme Court declined to review a Superior Court opinion issued in the case of Marshall v. Brown’s IA, LLC, that found that Plaintiff was entitled to a new trial in a case where the trial judge declined to give an adverse inference jury instruction when the defendant produced only portions of the video surveillance requested by Plaintiff.

Approximately two weeks after Plaintiff’s slip and fall, her counsel issued a preservation of evidence letter instructing the grocery store to retain surveillance video of the accident and area in question for 6 hours prior to the accident, and 3 hours after the accident. Instead, the grocery store preserved only 37 minutes of video prior to the fall, and 20 minutes after the fall. The rest of the footage was overwritten automatically after 30 days. The general manager of the store testified that the grocery store’s “rule of thumb” was to keep only 20 minutes of footage before and after such incidents. Plaintiff’s counsel demanded an adverse inference charge and the Court declined to give one, finding no bad faith and that the mere request for more footage did not make it relevant evidence. The Superior Court found the trial court’s reasoning to be an unreasonably limited understanding of relevance, and a misapplication of the Pennsylvania case law regarding spoliation, which does not require bad faith.

This decision is yet another in a long line of Pennsylvania decisions that make it clear that the duty to preserve evidence in Pennsylvania is very broad, and that the Pennsylvania appellate courts see the only cure to spoliation allegations as being the adverse inference jury instruction provided by the Model Jury Instructions. An adverse inference charge is extremely difficult to overcome in any liability case.

Practically, the ruling may lead to broad requests for video footage of such incidents. Business owners must have a clear, articulated video retention policy, and an understanding of why the policy exists and how it is followed, to be able to argue that (1) such requests are an onerous and unduly burdensome, and (2) to avoid an adverse inference charge if footage was deleted on an automatic schedule. 

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