Litigation

The question of whether outside employment will impact your retirement benefits under the Public School Employees’ Retirement Code (”Retirement Code”) is one to consider carefully when reporting retirement contributions to the Public School Employees’ Retirement System (”PSERS”). Typically, teachers, administrators and other personnel employed in the Pennsylvania Public School System are eligible for membership in PSERS, and thereby entitled to receive benefits. Membership in PSERS is limited by the Retirement Code to “school employees” which is defined as “[a]ny person engaged in work relating to a public school for any governmental entity and for which work he is receiving regular remuneration as an officer, administrator or employee excluding, however, any independent contractor or a person compensated on a fee basis.”

There are also requirements as to the minimum number of hours a school employee must work to maintain his or her membership in PSERS. By contrast however, there is no law or regulation that limits the number of outside full time jobs or overall work or hours as a consultant or employee that can be held by anyone paying into PSERS. Thus, one would think that reporting the number of hours worked as a “school employee” would be sufficient to protect and secure the retirement benefits earned as a member of PSERS. Members should be aware, however, that PSERS may require additional information to support reported contributions if PSERS receives information that a member has earned income outside of the member’s employment in the Public School System. Members should maintain all appropriate records of outside employment as well as employment in PSERS in the event that supplemental information is required to prevent revocation or adjustment of retirement benefits.

For more information about how this issue may impact you, please contact Shannon Reilly.

By: Nancy J. Glidden

Pennsylvania businesses seeking to minimize class action exposure and generally seeking to enforce arbitration provisions should be aware of a recent decision issued by the Federal District Court for the Eastern District of Pennsylvania, Clerk v. Ace Cash Express, Inc..  Historically, Pennsylvania courts have enforced arbitration provisions in contracts. Recently, the Court (applying Pennsylvania law) added to the body of law which favors enforcing arbitration provisions.

At issue in Clerk was the enforceability of an Arbitration Agreement that was part of a loan transaction, and which mandated submitting all disputes to arbitration on an individual (ie. non-class action) basis.   The Court found the Arbitration Agreement was neither procedurally nor substantively unconscionable, and enforced the Agreement according to its terms - which eliminated all class claims and required Clerk to arbitrate her individual claims.

Significant to the outcome was the fact that the Arbitration Agreement gave Clerk thirty (30) days to opt-out without any adverse effect on the terms of the underlying loan transaction, but Clerk failed to exercise the opt-out.

Clerk is a good read because the analysis it provides concerning the elements necessary for arbitration provisions to survive challenge is useful background when drafting.

Please contact Nancy J. Glidden for more information.

By: Stephen P. Lagoy

Baseball arbitrations (see previous blog posts here and here) have become increasingly rare as the owners and players opt to negotiate a contract rather than place their fate in the hands of an arbitration panel. The only exception thus far this year has been the case of Milwaukee Brewers outfielder Corey Hart. In the first Major League Baseball salary arbitration this year, Hart won his case against the Brewers. The three-member panel of arbitrators awarded Hart the $4.8 million salary he was seeking for 2010. The Brewers had proposed $4.15 million. Under the rules of baseball arbitration, the arbitrators had to pick one proposal or the other — splitting the difference isn’t permitted.

For a very interesting account of the arbitration procedure in Hart’s case, see:

http://mlb.mlb.com

Contact Steve Lagoy for more information on how the arbitration process can help you and your business.

By: Daniel M. Hanifin

Upon the request of either party in a divorce action , a court shall divide, distribute or assign, the marital property between the parties without regard to marital misconduct in such percentages and in a manner that the court deems proper.  In dividing marital property, which is defined as property acquired during the marriage, the court will consider the following factors:

(1)    The length of the marriage;
(2)    Any prior marriages of either party;
(3)    The age, health, income , vocational skills, estate, employability and needs of each party;
(4)    The contribution of one party to the education, training or increased earning capacity  of the other ;
(5)    The possibility of each party for future acquisition of assets and income;
(6)    Income of both parties, including medical, insurance and retirement benefits;
(7)    The contribution of each party to the acquisition of marital property;
(8)    The value of personal property for each party;
(9)    The standard of living created during the marriage;
(10)    The circumstances of each party at the time of equitable distribution; and
(11)    Whether the party will be the custodian of any minor child.

The court has broad based power to effect equitable distribution of the marital assets including the entry of a judgment against a non-complying spouse.

Many people avoid the necessity of having a court divide their property by entering into a marital settlement agreement, which should be incorporated into the divorce decree.  To learn more about equitable distribution of marital property and/or marital settlement agreements please contact Dan Hanifin.

By: John K. Fiorillo

Every County in Pennsylvania conducts periodic sheriff’s sales of real estate.  The sales are conducted in an auction format with open bidding.  The properties at sale are being sold as the behest of a creditor attempting to recover money owed.  While there are numerous opportunities, there also exist numerous risks.  In order to minimize the risk, you will need to identify some of those risks.

Please read my article setting out some helpful tips if you are interested in buying a property at sheriff sale.  Keep in mind that this article does not identify all potential risks.  The first tip is to contact me for more information.

By: James C. Dalton

Your right to sue, and the legal remedies available to you, depend not only on the particular facts of your case, but also on the legal basis or theory of your claim. As noted in an earlier blog regarding the Discovery Rule, statutes of limitation require that claims be brought within specific time periods, depending on the type of claim. Failure to do so will lead to dismissal of your claim. A claim for breach of contract, for example, must be brought within four years of when the breach occurred, while a claim for personal injuries due to negligence is subject to a shorter, two year limitation period. Determining how to categorize a particular claim is not always a simple matter – is your claim for faulty construction/repair work a contract claim, or, a negligence claim? Or both? The legal category of your claim will also impact the nature and amount of damages recoverable in court.

Courts often address the distinction between contract and tort (negligence) claims in cases involving the performance of contract obligations, applying the Gist of the Action Doctrine, which the Pennsylvania Superior Court, in Reardon v. Allegheny College, explained as follows:

The gist of the action doctrine acts to foreclose tort claims: 1) arising solely from the contractual relationship between the parties; 2) when the alleged duties breached were grounded in the contract itself; 3) where any liability stems from the contract; and 4) when the tort claim essentially duplicates the breach of contract claim or where the success of the tort claim is dependent on the success of the breach of contract claim.

Proper analysis of the facts and available legal theories of your case is essential to protecting your rights and maximizing your recovery. Please contact James C. Dalton, Esq. for further information.

By: Stephen P. Lagoy

The American Arbitration Association reports that more than 1400 auto dealerships have already applied for arbitration under the government-mandated program for terminated dealerships. AAA will assemble panels to decide the cases over the next 6 months but expects that many cases will settle. For more on the reaction of both dealers and manufacturers, see:

http://www.reuters.com/article/idUSTRE60P08H20100126

Contact Stephen P. Lagoy for more information.

By: James C. Dalton

Statutes of limitation require that legal claims be filed in court within a specific time period after the claim arises. A claim for breach of contract, for example, must be brought within four years of when the breach occurred and a claim for personal injuries due to negligence is subject to a shorter, two year period. Determining how to categorize a particular claim (and the resulting limitation period) is not always a simple matter - is your claim for faulty construction/repair work a contract claim, or, a negligence claim? Or both?

Whether a statute of limitation bars a claim also depends on when the claim arose. Does the period for filing a claim for defective window installation, for example, arise when you signed off on the completed work, or, much later when all of your windows begin leaking? The “Discovery Rule” provides that the limitations period does not start running until a plaintiff knows, or reasonably should have known, that they have suffered a loss or injury due to the conduct of another.

The Pennsylvania Supreme Court recently applied the Discovery Rule to reinstate a patient’s medical malpractice claim in the case of Wilson v. El-Daief. The patient filed suit in October 2003, claiming that her radial nerve was negligently severed during wrist surgery in August 2000. Although the suit was filed over three years after the surgery, the court ruled that the two-year statute of limitations did not automatically start running from the date of surgery. The patient did not know that her pain and symptoms following surgery were due to her surgeon’s negligence until approximately thirteen months later so the case was allowed to be presented to the jury, despite the lapse of over three years since the negligent surgery.

The Wilson case demonstrates that measuring the statute of limitations is not always as simple as looking at a calendar and there may be unique circumstances and legal principles which allow a claim to be pursued. Please contact James C. Dalton, Esq. for further information.

By: Daniel P. Dwyer

Contractors, subcontractors and material providers have various legal remedies for protecting themselves against general contractors and/or property owners who fail to pay for construction services and materials. One of these remedies is the Pennsylvania Mechanics Lien Law. This law permits contractors, subcontractors and material men, under some circumstances, to place a lien on the real property for which they provided work or materials for which they were not paid. Although the statute is essentially in the same form as it was when originally enacted in the early 1900s, and so can be difficult to navigate, significant changes were made in 2007 and, more recently, in October 2009. To view a more in depth discussion about the recent amendments, please click here.

Please contact Daniel Dwyer for more information.

By: Daniel P. Dwyer

Attorneys hoping to minimize cost and increase efficiency for their clients will often engage in communications or joint defenses with co-defendants. This is often done either informally or with the use of formal joint defense agreements. Although this practice is fairly common, there has been relatively little guidance from the court on issues raised, such as whether and under what circumstances engaging in a joint defense will result in waiver of the attorney client or work product privileges. For more information on concerns with joint defenses, please read the full article. Contact Daniel Dwyer for more information.