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

In Eiser v. Brown & Williamson Tobacco Corp., -- A.2d --, 2007 WL 4570915, *1 (Pa. 2007), the Supreme Court of Pennsylvania weighs in on the self-described “maelstrom” in recent years surrounding the propriety of waiver under RAP 1925(b) for failure of an appellant to file a “concise statement of errors.” [1]  Despite the plain requirement under Rule1925(b) that Appellant set forth only those rulings or errors that she intends to challenge, Eiser holds that the number of issues raised in the RAP 1925(b) statement shall not alone serve as the basis for waiver.  Rather, waiver is appropriate only where the court finds unequivocally that the Appellant has breached its obligation of good faith to the court by deliberately attempting to circumvent the meaning and purpose of RAP 1925(b).

Eiser was a complex action brought by the estate of a life-long smoker and lung cancer victim, directed principally against the manufacturer of the deceased’s preferred brand of cigarettes.  The trial court entered judgment on a jury verdict for defendants, and plaintiff appealed.  In response to the trial court’s request for a Rule 1925(b) statement, appellant submitted a fifteen-page document listing at least twenty-four (24) separate issues.  Relying on the recent Superior Court decision in Kanter v. Epstein, 866 A.2d 394 (Pa. Super. 2004)[2], the trial court found that Appellant had raised so many issues on appeal that he should be deemed to have waived all issues for failure to adhere to the meaning or purpose of RAP 1925(b).  Ultimately, the appellant only included eight issues in his Statement of Questions Involved for the Superior Court.  The Superior Court ruled on two of these eight issues, but quashed the remaining six on the basis that the record was insufficient because the appellant’s prolix 1925(b) statement had frustrated effective review by the trial court. 

In a decision likely to disappoint some trial judges, a plurality of the Supreme Court reversed, holding that, absent a finding of bad faith, the mere quantity of issues raised in the RAP 1925(b) Statement of Matters Complained of on Appeal may no longer be used as a basis for finding waiver.  Rather, lower courts must address, on the merits, all issues raised in good faith by the Appellant.  Accordingly, the Supreme Court remanded to the Superior Court to review the remaining six issues included in the Appellant’s Statement of Questions Involved, and, if necessary, to remand to the trial court for a more detailed analysis of the specified issues.

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 After issuing draft NPDES permits in September 2007, the Department of Environmental Protection (“DEP”) began issuing final NPDES permits last week.  The permits are being issued as part of the first of three phases of implementation of the Department’s Bay Program.  The largest sewer plants in the Bay watershed comprise the facilities under the first phase of implementation.  The permits serve to impose monitoring requirements for nutrients, specifically nitrogen and phosphorus.  The permits contain compliance schedules for complying with permit specific nutrient levels based on the facilities permitted design flow or treatment capacity multiplied by a 6 mg/l for nitrogen and 0.8 mg/l for phosphorus. 

Each of the facilities that are to receive new NPDES permits under this first phase of implementation were to have submitted a report, which was to demonstrate the facilities ability to comply with the new effluent limits or a schedule for compliance with the new limits by upgrading the treatment facilities or by purchasing nutrient credits to off-set any exceedence of the new effluent.  The required plant upgrades will be expensive by any account, which cost will be passed on to rate payers.

There have been very few nutrient credit trades approved by DEP at this point, but it is anticipated that nutrient credit trading will increase as the new permit limits come into effect. with the first deadline for compliance set for the period between October 1, 2010 and September 30, 2011.

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Pursuant to a recent decision by the Third Circuit, an employee's oral notification to his supervisor of his potential need for surgery served as sufficient notice for leave to his employer to warrant protection under the Family and Medical Leave Act. In a holding that broadens the type of conduct sufficient to put an employer on notice of an employee's need for FMLA leave, the Third Circuit Court of Appeals vacated the District Court of New Jersey’s grant of summary judgment for the employer on the plaintiff/employee's FMLA claim. Sarnowski v. Air Brook Limousine, No. 06-2144 (3d Cir. Dec. 12, 2007). (The Third Circuit has jurisdiction over Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands.)

To exercise the right to FMLA leave, an eligible employee must provide his or her employer with reasonably adequate information under the circumstances to give the employer notice that the employee seeks leave under the FMLA. Generally speaking, the employee does not have to expressly assert rights under the FMLA or even mention the FMLA. The decisive question is the manner in which the information conveyed to the employer is understood.  

In Sarnowski v. Air Brooke Limousine, Inc., the Third Circuit vacated and remanded the award of summary judgment to the employer dismissing the employee’s FMLA interference claim. In that case, Sarnowski was terminated eight days after informing his supervisor that his doctor had advised him of the need to monitor his heart and the potential need for additional surgery and 6 weeks of leave. At the time, Sarnowski had only recently returned to work after missing 6 weeks of work due to coronary bypass surgery. The plaintiff/employee argued that the defendant/employer interfered with his rights by terminating him after he notified his supervisor of the medical monitoring and the possibility of additional heart surgery. 

In analyzing what constitutes sufficient legal notice under the FMLA, the Third Circuit emphasized that the regulations do not require an employee to submit formal written requests for leave. Furthermore, the Court found that verbal notification which raises an employer's awareness of a potential FMLA covered leave, without an employee expressly asserting its rights or making mention of the FMLA, is appropriate notice pursuant to FMLA regulations. The Third Circuit interpreted the regulations to imply that providing precise dates and duration of the leave are not necessary. 

The Court’s decision in Sarnowski certainly invites employee abuse of the FMLA. Permitting employees to request leave even though they don't know if or when it may start burdens significantly an employer. In light of this decision, it is important for employers to train their human resources employees to recognize and respond to ambiguous employee statements about the potential need for leave.

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For the past two years, the answer to this question has been in a state of flux in Pennsylvania. In August 2006, the federal court in the Eastern District of Pennsylvania answered this question in the negative, and allowed an employee’s Family Medical Leave Act (FMLA) claim against her employer to go to trial, despite a severance agreement and release waiving any claim arising from or relating in any way to her employment. Dougherty v. Teva Pharmaceuticals USA, No. Civ. A. 05-2336 (E.D. Pa. August 2006). 

Then, eight months later in April 2007, that court reconsidered its decision and reversed itself, ruling that, yes, employers can settle FMLA claims brought by employees. Specifically, the court concluded that the FMLA regulations do not prevent an employee from waiving and/or settling any claims for past violations of the FMLA as part of a severance or settlement agreement. This ruling was supported by the United States Department of Labor (DOL), which has historically encouraged the settlement of such claims. 

Three months later, a divided Fourth Circuit Court of Appeals answered the question in the negative for employers in Virginia, West Virginia, North and South Carolina, and Maryland: absent prior court or DOL approval, the FMLA regulations bar all waivers or releases of employees’ FMLA rights, including the right to bring a claim for a past violation of the FMLA. Taylor v. Progress Energy, Inc., 493 F.3d 454 (4th Cir. 2007) . This decision would open the floodgates for employers to submit separation and severance agreements for DOL review, and settlement agreements to the court for approval, unnecessarily injecting the DOL and courts into what had heretofore been private negotiations between employers and employees.

To possibly settle this unsettled issue, the Supreme Court on January 14, 2008 asked the Solicitor General to weigh-in on whether the Taylor v. Progress Energy, Inc. decision was correct. Given the DOL’s position permitting the waiver of FMLA claims, the Solicitor General may recommend that the Supreme Court take on the issue and grant certiorari. Keep in mind that the Solicitor General serves as an advocate for government agencies, and the Supreme Court usually follows the Solicitor General’s recommendation.

Although the answer to the question may be far from certain, the import of these decisions for employers is clear. Employers need to exercise caution when drafting separation, severance, and settlement agreements that contain broadly-worded releases. The agreement should specify the statutes for which a waiver or release of claims is sought, and should include a severability clause that would save the otherwise enforceable provisions of the agreement. If the location of the employment relationship, or the law governing the agreement, lies in the Fourth Circuit, however, any waiver or release of FMLA claims is not valid without court or DOL approval, at least until the Supreme Court weighs in on this issue.

We haven’t heard the latest on this question, and I will keep you updated as the issue develops

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Under the General Aviation Revitalization Act of 1994 ("GARA"), claims for death, injury and property damages involving certain types of aircraft asserted against manufacturers are generally barred if an accident occurs more than eighteen (18) years after the delivery of the aircraft to the first purchaser or lessee if delivered directly from the manufacturer; or the date of first delivery of the aircraft to a person engaged in the business of selling or leasing such aircraft. See 49 U.S.C. § 40101. GARA, however, contains a "rolling provision" that while preserving foreclosure of actions against manufacturers prescribes a new eighteen (18) year period of time with respect to any new/replacement components that begins to run upon the date of completion of the replacement or addition. See id. 

In the matter Prigden, et al. v. Parker Hannafin Corporation, et al., 588 PA. 405, 905 A.2d 422 (2007), the Pennsylvania Supreme Court was called upon to interpret whether the aforementioned protections afforded to "manufacturers" of aircraft also extend to aircraft type certificate holders and aircraft designers. Type certificates are issued by the Federal Aviation Administration and authorize an entity to manufacture a particular aircraft or engine after an applicant establishes that the type design which includes drawings, specifications and data necessary to insure airworthiness meet applicable design and testing standards. In Prigden, Plaintiffs did not dispute that the original engine assembly was in installed on the subject aircraft more than eighteen years prior to the mishap but did argue that the crash was the result of failures of replacement components that were replaced and overhauled within eighteen years of the accident. See id. In their action, Plaintiffs further argued that the type certificate holder for the engine model installed on the aircraft was not entitled to GARA repose protections because even though they did not supply or install the replacement components, they "supplied specifications upon which replacement components were selected and installed…and marketed such parts under [their] own classification and part number. See id. As such, Plaintiffs argued the type certificate holders were not entitled to GARA protections that are provided to "manufacturers" pursuant to GARA's rolling provisions. See id.

The Pennsylvania Supreme Court ultimately rejected the trial court's distinction between liability asserted against a manufacturer "in its capacity as manufacturer" that is otherwise entitled to GARA protections and designers and/or type certificate holders which the trial court would not accord such protections. Upon legislative review and interpretation, that Pennsylvania Supreme Court held that aircraft designers and type certificate holders are essential prerequisites to "manufacturing" in the aviation industry. See id.   Rejecting Plaintiffs' form over substance argument, the Court's holding was tailored to the role that designers and type certificate holders play in the aviation industry as opposed to the "status" of the entity involved. To rule otherwise, the Court held, would undermine the federal scheme that was crafted to relieve the aviation industry of the burden of "long-tail" liability. The Court continued to reject Plaintiff's alternate theory that Section 400 of the Second Restatement of Torts would provide an alternate theory of recovery premised upon a design defect claim as so doing would also displace GARA's period of repose. The Court, however, did preserve Plaintiff's right to seek recovery pursuant to exceptions to the repose period that appear in GARA by failing to rule upon such theories noting such issues were not previously decided by the lower court and were not then properly before the Court. 

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