Pennsylvania Litigation Blog : Pennsylvania Litigation Lawyer & Attorney : Barley Snyder Law Firm : Serving Lancaster, Reading, York, Chambersburg

The Home Improvement Contractor Registration Act has become the law in Pennsylvania and is due to go into effect this Summer. At least part of the goal of this Act is to curb the impact of “fly-by-night” contractors by requiring all contractors that work in the residential home improvement area to register in a statewide database. The Act is designed to carry enforcement provisions and serve the purposes of protecting the public as well as legitimate contractors. It is expected that a form contract will be promulgated prior to the effective date of the Act. Highlighted points include:

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On February 13, 2009, Judge Sylvia H. Rambo of the United States District Court for the Middle District of Pennsylvania issued an E-discovery spoliation sanction in the case of Kvitka v. The Puffin Co., LLC. The case involved a dispute between Plaintiff, a collector of French and German antique dolls, and the publisher of Antique Doll Collector Magazine. After fielding complaints of disparagement from other advertisers, American Doll Collector (“ADC”) refused to continue running Plaintiff’s ads.

 Plaintiff discovered the exclusion and wrote to ADC’s advertising director that, “Apparently, this entire thing has a lot to do with some emails.” When Plaintiff later threatened suit, an ADC attorney wrote Plaintiff instructing her to preserve her computer’s hard drive and all the disputed emails.

Plaintiff originally sued in the Court of Common Pleas for Dauphin County, Pennsylvania. Plaintiff claimed that, while that case was pending, her laptop began acting “wonky” and she obtained a replacement from her company’s IT department. A week later, she threw her old laptop in the trash, but failed to take any efforts to preserve the emails. Plaintiff then discontinued the state court action and re-filed suit in Federal Court.

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In an opinion issued by Chief Justice Castille, the Supreme Court reversed the decision of the Commonwealth Court and determined that the Zoning Hearing Board of Exeter Twp. was correct in determining that the Exeter Township Zoning Ordinance was exclusionary in limiting the size of a billboard to 25 square feet. The Supreme Court held that the owner of the billboard in question, Land Displays, was successful in presenting substantial evidence to enable the ZHB to conclude that a billboard is a legitimate means of displaying and communicating an advertising message to passing drivers on roads and highways, that a 25 sq. ft. sign is too small to convey this message and that a 300 sq. ft. sign is large enough for that purpose. The Court concluded that Land Displays proved a de facto exclusion.

Had the Supreme Court concluded otherwise it would have had a severe adverse impact upon the billboard industry in Pennsylvania. Ordinances in local municipalities would have been able to prevent industry standard size signs and thereby effectively preventing any new bill board signs to be erected. The industry had filed an amicus curiae brief in support of Land Displays.

The Court also remanded the case back to the Commonwealth Court because it had not rendered a decision on the issue raised by the Township that Route 422 presents a safety issue when signs are erected anywhere along that route and not just in the areas of Route 422 which the ZHB concluded there was no safety issue. We see no evidence on record which would enable the Court to overrule the well reasoned opinion of the ZHB on that issue. 

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In Toll Brothers, Inc. v. DEP and Bushkill Township, EHB Docket No. 2007-163-MG (Issued October 1, 2008) , the EHB denied Toll Brothers, Inc.s’ (“Toll Bros.”) appeal of DEP’s denial of Toll Bros. private request that the Township provide public sewer service to Toll Bros.’s proposed development. Toll Bros. filed a private request with DEP seeking to have the Department determine that Bushkill Township was not properly implementing the Township’s approved 537 Plan. The Township maintained that the area Toll Bros. proposed for development was in an area to have on-lot septic systems. Toll Bros. did not argue that the 537 Plan was inadequate to meet its proposed sewage needs.

The EHB found that the 537 Plan was not “concise” in relation to the areas to be publicly sewered. The 537 Plan made reference to areas that were developed at the time the plan was developed in 1973. Toll Bros. argued that portions of its proposed development were identified as being within the area to be publicly sewered and that the term “developed” was not defined in the Township’s 537 Plan.

The EHB found that DEP properly interpreted the 537 Plan in deciding that the area proposed by Toll Bros. was not within the area to be publicly sewered. There was no evidence that the area was “developed” in or prior to 1973, nor that the area was intended to be served by public sewers based on the description of the sewer service area.

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In a recent holding, the Third Circuit reiterated Pennsylvania’s “at-will” presumption in employment by declining to expand the recognized exceptions to that principle. In Pennsylvania, an at-will employee can generally be discharged at any time, with or without a reason. However, Pennsylvania courts have in the past recognized an exception where an employee’s termination violates a “clear mandate of public policy,” but such situations have been limited to circumstances in which an employer: (1) requires an employee to commit a crime; (2) prevents an employee from complying with a statutorily imposed duty; or (3) discharges an employee when specifically prohibited from doing so by statute.

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In Brewster v. DEP and Highway Materials, EHB Docket No. 2008-196C (Issued September 18, 2008) , the Board granted the Brewester’s petition for supersedeas, effectively suspending blasting authorization issued by DEP to Highway Materials for quarry production blasting. 

Highway Materials had filed an action in the Montgomery County Court of Common Pleas relative to the blasting authorization at its quarry. The Court, relying on local zoning, issued an order authorizing Highway Materials to blast within 25’ of the Brewester’s property line and restricted the Brewsters’ from occupying certain portions of their property during blasting activity. 

Highway Materials submitted a revised blast plan to DEP, consistent with the Court of Common Pleas’ Order. DEP approved the revised blast plan authorizing blasting within 25’ of the property line and in effect within 300’ of the Brewsters’ residence.

The Brewsters appealed DEP’s approval of the blast plan. The Board conducted a hearing on the petition for supersedeas. After initially denying the petition for supersedeas, the Board reconsidered its decision and held that 52 P.S. §3316, section 16 of the Non-coal Surface Mining Act of December 19, 1984, P.L. 1093, pre-empts local regulation of blasting activity and that the local zoning ordinance, which would allow blasting within 25’ of a property line, is potentially in conflict with the 300’ setback from an occupied dwelling under the Department’s regulations at 25 Pa. Code §77.504. The Board held that the Brewsters were likely to prevail on the merits of their appeal given the clear regulatory requirement for a waiver to blast within 300’ of an occupied dwelling. The Board also held that the Brewsters had made a credible case in terms of showing irreparable harm.

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Unfortunately, the current economic climate has employers looking at the reality of layoffs and downsizing to weather this financial storm. When companies consider trimming their workforce to a significant degree, or plant closings to deal with tough economic realities, they often-times must also forewarn employees of these decisions. Aptly named the WARN Act, the federal Worker Adjustment Retraining and Notification Act, in effect since 1989, requires certain employers to provide sixty-days’ advance notice of such a “mass layoff” or “plant closing.” The purpose of the WARN Act is to give affected employees sufficient advance notice to adjust to and hopefully emerge from the impending job loss.

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Recently, the Pennsylvania Superior Court once again provided "more bite" for the 18 year statute of repose, more fully set forth in the General Aviation Revitalization Act (GARA) of 1994, Pub. L. No. 103-298, 108 Stat. 1552, codified at 49 USC 40101 et seq, by refusing to permit Plaintiffs to perform an end run around of the repose period by "resetting the clock." In the matter of Moyer v. Teledyne Continental Motors, Inc., et al., No. 1402 EDA 2007, 2008WL3854350 (Pa. Super. Aug. 20, 2008), (reargument filed 9/3/2008) children of decedents killed when their aircraft crashed brought an action that included claims against the manufacturer of an aircraft engine. More than 18 years had expired from the date of delivery of the aircraft to its first purchaser. As to the manufacturer, Plaintiffs argued, unsuccessfully, that the trial court erred in refusing to find the issuance of a subsequent Service Bulletin constituted a "replacement part" as the term is defined in GARA. Plaintiffs argued, inter alia, that flight manuals have been ruled to be a "part" of the aircraft as they contain the instructions necessary for the operation of an aircraft and therefore, are inseparable from it. They then argued by extension that like flight manuals, a Service Bulletin is also necessary for the operation of an aircraft and, as such, are tantamount to a flight manual.

The Superior Court held that Plaintiffs' logic was flawed given the continual issuance of Service Bulletins on a variety of topics, and if the issuance of a Service Bulletin were permitted to reset the clock with each subsequent issuance, the intent of GARA -- to "ameliorate the impact of long-tail liability…"-- would be eviscerated. The decision provides yet another well reasoned victory affirming the GARA repose period.

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Since the United States Supreme Court’s ruling in KSR v. Teleflex, 550 U.S. ___, 127 S. Ct. 1727, 82 U.S.P.Q.2d 1385 (2007), enforcing existing patents against infringers has become much more difficult. When cornered into litigation, potential infringers will commonly attack an infringement assertion through patent invalidity. The defendant will attack the validity of the issued patent by claiming the invention is not novel nor non-obvious.

In order for an invention to be patentable it must be new. This novelty requirement is inflexible and is defined in the patent laws. However, the other requirement for patentability, non-obviousness, is not so clear. The history in defining non-obvious has taken many turns in scope and content.

For an invention to be patentable, the invention should not be an obvious improvement over prior art. In the least, the invention should be more than a mere improvement that a "person having ordinary skill in the art" would anticipate. Graham v. John Deere Co., 383 U.S. 1 (1966) provided the specific factors that the courts should use in determining if a claimed invention is non-obvious, requiring a determination of the scope and content of the prior art, the differences between the claimed invention and the prior art, and the level of ordinary skill in the prior art. Further, the court held that secondary considerations could serve as indicia of non-obviousness, but only on a case-by-case basis. These secondary considerations include: commercial success, long-felt but unsolved needs, and failure of others.

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