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

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link