Litigation

By: Nancy J. Glidden

It is not unusual when registering for something on-line to “click” a box by which you agree to accept certain terms governing the transaction. Before you “click” the box, have you actually read what it is you are agreeing to?

Increasingly eBay users are surprised to learn that if a problem develops with an eBay transaction, any claims against eBay must be brought exclusively in Santa Clara, California. This is because eBay includes a forum selection clause in its User Agreement. If you agree to the terms, and a problem develops down the line for which you believe eBay is responsible, more likely than not your rights will be determined in a California courtroom.

A Pennsylvania litigant surprised by eBay’s forum selection clause recently waged an unsuccessful challenge to the validity of the clause. The litigant, Dominic Tricome, filed suit in Pennsylvania and tried to fend off eBay’s attempts to dismiss or transfer the case by arguing that eBay’s User Agreement was procedurally and/or substantively unconscionable, and that litigating in California would be unduly burdensome. Judge C. Darnell Jones II of the U.S. District Court for the Eastern District of Pennsylvania, however, disagreed and found eBay’s forum selection clause to be “presumptively valid.” See Tricome v. eBay Inc, 2009 WL 3365873 (E.D.Pa.)

So, whether you are completing a registration for eBay or some other on-line business, to avoid surprise be sure to read the User Agreement and understand what it provides before you “click” to accept its terms.

For more information, please contact our office.

By: Stephen P. Lagoy

An insurance industry group will experiment with an expedited form of binding arbitration designed for small, uncomplicated disputes. The Association of Insurance and Reinsurance Run-Off Companies has announced the development of a new streamlined dispute resolution procedure the elements of which include a single arbitrator, discounted fee structure, and no discovery or hearing testimony without consent of the parties. The arbitrator must issue a decision within 30 days after the close of evidence.

To read more about this streamlined process, see http://www.businessinsurance.com

For more information, please contact our office.

By: Nancy J. Glidden

Many litigants and counsel may not be aware that a process for alternate dispute resolution exists in the Superior Court during the pendency of an appeal. The Pennsylvania Superior Court has an “Appellate Mediation Program.” The Program provides a potential means for resolving disputes that is faster, more economical, and more likely to result in a satisfactory outcome than would otherwise be the case with a full appeal. Certain civil, family-related and Orphans’ Court matters may be particularly well-suited for resolution through mediation. If selected for mediation, the process occurs during the pre-briefing phase of the appeal. To learn more about the Program and the process for having a matter submitted to mediation please refer to this article or contact Nancy J. Glidden.

By: Daniel P. Dwyer

The economic conditions of the past two years have caused many shareholders or members of corporations and other entities to review management’s actions in a critical light. These reviews, almost inevitably, will result in claims for mismanagement or malfeasance that will lead to litigation. Both the plaintiffs and the defendants in these matters should be aware of the preliminary requirements that Pennsylvania law imposes on claimants. These requirements include the making of a formal demand on the entity prior to litigation and obtaining court certification as an appropriate plaintiff after litigation is commenced. The courts that apply these rules have identified exceptions to these requirements. However, the courts have given little guidance on just how far they will apply these exceptions. If you anticipate either bringing or defending such claims, and want to discuss these requirements and their exceptions, please contact our office.

By: Stephen P. Lagoy

An experienced commercial mediator told me about a recent mediation in which there was a great deal of animosity among the parties, so much so that they refused to be in the same room at any point in the mediation. During the course of the mediation, my colleague served several platters of homemade cookies. Not having enough arms to distribute the platters herself, she asked one of the participants to bring a platter of cookies to the conference room occupied by “the other side.” Much to the mediator’s surprise, not only were the cookies accepted gratefully, but the person delivering the cookies was invited into the room and dialogue ensued. Before long, the parties were fully engaged and this seemingly irresolvable conflict proceeded to an amicable resolution. Could it be that cookies resolved the controversy?

In fact, there is a good neuroscientific explanation for what may have happened. The ingestion of food produces a hormone called oxytocin, which has been shown to increase trust and empathy while reducing fear. And eating together is a well recognized trust- builder. So, the mediator’s cookies may well have contributed to the sudden onset of civility among the parties. The moral of this story: the next time you are embroiled in a controversy, break out the Tastykakes.

For more information, contact Stephen P. Lagoy

School employers, retired teachers, administrators and other personnel should use caution when entering into emergency contracts for temporary, post-retirement employment. Generally, employers may hire retired teachers, administrators and other personnel under temporary contracts when there is an emergency, or in the event of a shortage of appropriate personnel. However, the Pennsylvania Public School Employees’ Retirement System (“PSERS”) may not accept the determination of the employer that the requisite emergency or shortage exists to justify the contract. In such cases, PSERS may adjust the employee’s retirement benefit and/or require the employee to repay benefits paid during the term of the emergency contract. While the law does not expressly require the employer or the employee to obtain authorization from PSERS before entering into such a contract, doing so may avoid problems for the employer and the employee if PSERS is consulted and pre-approves the emergency contract. The issue of whether PSERS has authority to interfere with the employer’s determination that an emergency or shortage exists is currently on appeal in the Commonwealth Court. For more information about how this issue may impact you, please contact our office.

By: Daniel M. Hanifin

For many separated couples the first step on the road to divorce is a domestic relations conference for spousal and child support. Even before a complaint for divorce is filed, many dependent spouses will file a complaint with the county domestic relations office for both spousal and child support.

When you receive a domestic relations complaint:

First, check the accuracy of the information reported by the filing spouse. There are often inaccuracies which can affect the outcome of the conference;

Second, get all of your required paperwork in order. Attached to the complaint are several worksheets that are required to be filled out and brought to your first conference;and

Third, call a lawyer to help you prepare for and to represent you at the conference.

While it is not necessary to have a lawyer represent you at your domestic relations conference, it is advisable! There are many issues surrounding the payment of spousal and child support, including tax ramifications that your lawyer will help you with. In addition, whether you are nervous or just angry a lawyer will keep you from making mistakes that will hurt the outcome.

For more information on domestic relations conferences contact Dan Hanifin at dhanifin@utbf.com

By: Christopher L. Turner

If you are arrested for driving while under the influence of alcohol in Chester County, an Accelerated Rehabilitative Disposition (ARD) Program is available for those who qualify. Essentially, admission into ARD and satisfactory completion of the ARD Program gives an individual the opportunity to earn a clean record and dismissal of the pending charges. ARD should be considered by those who are willing to lend themselves to treatment and rehabilitation rather than punishment.

Participation in the ARD Program is not mandatory and compliance with certain requirements imposed by the Chester County District Attorney’s office is absolutely necessary for acceptance into the ARD Program. Certain people are simply not eligible for the program and acceptance to it is determined on a case by case basis. Because there is no right to participate in the ARD Program, you should consult an attorney to determine whether ARD is a viable option for you. For more information on the ARD Program or driving under the influence laws in Pennsylvania, please contact Christopher Turner.

By: James C. Dalton

You arrive home after a hard day’s work, only to find that your always-friendly neighbors have begun installation of a pool/patio/cabana complex, and, their excavation is destroying the roots of the majestic oak which stands on your own property (although the roots extend into the neighbor’s property). Surely, this damage and destruction can, and must (!) be stopped…right? Well, not so fast.

The short answer to this question is no, you can’t stop your neighbor’s construction just because it may damage the roots which extend from the tree located on your property. In the 2004 case of Koresko v. Farley, the Pennsylvania Superior Court decided that tree roots which encroach on a neighbor’s property may be removed by that neighbor, as they amount to a trespass on the neighbor’s property. This ruling was based on an earlier Pennsylvania Supreme Court decision which determined that overhanging tree branches constitute a trespass, and can likewise be removed. Even if the roots (or branches) have been there for many years, no rights (or “prescriptive easement” in legal terms) are acquired by the presence of roots or branches over a neighbor’s property.

This is but one example of a situation that can lead to strained relations between neighbors. The types of disputes that arise are limited only by the creativity of property owners and the activities they choose to pursue. Can my neighbor’s kids play basketball until midnight on their highly illuminated, state of the art basketball court? Is my neighbor allowed to run a part time business out of his home? What about their new landscaping which is diverting runoff and eroding my property? Is there anything I can do to reduce or stop it?

The answers depend on the unique facts of each situation, which must be analyzed under the applicable law to assess what remedies are available. The rights of adjoining property owners are controlled by many areas of the law – property law (as determined by court decisions over many years), state and local zoning laws, local ordinances, environmental laws, etc. A proper understanding of your rights and obligations as neighboring property owners can often defuse such disputes, and avoid some of the financial and emotional costs which occur when one or both parties assume they are “right”, or worse, resort to self-help or retaliation.

For more information, please contact me at jdalton@utbf.com, or 610-692-1371.