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

Unlike the previous administration’s willingness to work with employers to resolve Occupational Safety and Health Administration (OSHA) complaints, under the Obama administration, OSHA intends to become more active in regulation promulgation and enforcement. Specifically, a pronouncement by President Obama’s new Secretary of Labor, Hilda Solis, encapsulates the new focus: “As I have said since my first day on the job, ... the U.S. Department of Labor is back in the enforcement business,” Solis said. “There will be no excuses for negligence.... And so long as I am the Secretary of Labor, the Department will go after anyone who negligently puts workers at risk.” 

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In the recent case Carroll Township v. DEP, EHB Docket No. 2008-173-L (issued July 16, 2009) the Environmental Hearing Board (“EHB”) sustained a DEP Order to the Township relative to DEP’s grant of a private request. The property owner owned an approved lot in Carroll Township. The lot was not suitable for on-lot disposal, which was what the Township’s 537 Plan called for. The lot did not have suitable soils and had steep slopes.

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Most parents of children with disabilities will regale you of stories of their on-going battle with their child’s school district in an attempting to secure the most meaningful and appropriate education to their children while at the same time keeping the child mainstreamed for social purposes. Most parents who face this battle quickly become versed in the alphabetical soup of special education lingo including FAPE - a free appropriate public education, which is guaranteed by IDEA - the Congressional Individuals with Disabilities Education Act. And of course the nature in which such an education is obtained under an IEP - Individualized Education Plan. 

A recent United States Supreme Court has again brought IDEA to the forefront. In that the Supreme Court found in favor of a child with a disability in the June 22, 2009 decision Forest Grove School District v. T.A. (557 U.S. ___ (2009)). This dispute arose after the school district failed to establish an Individualized Education Plan (IEP) for a student with ADHD. As a result of the school district’s failure to act, the parents enrolled the child, at the advice of a private counselor, in a private school. The Court found that such action was appropriate as the school had failed to provide a FAPE as required by the IDEA. As a result, the school district was ordered to reimburse the child, who was substituted as a party when he reached the age of majority, for the expense incurred procuring the private school education.

This decision reinforces the authority the parents retain in seeking and procuring the most appropriate education for their child with disabilities, even if such a decision results in removing the child from public school. However, a decision to remove a child from a public school should not be treated lightly with an expectation that such reimbursement would be ordered by the court.

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ADP supplied equipment and software to a client under a contract which was to last seven (7) years. The written agreement specified that it could not be modified “Except by a writing signed by both parties”. When the customer sought to terminate the contract and walk away from it early, ADP filed a lawsuit to collect for the full seven (7) years of the contract. The customer replied that ADP had orally agreed to modify the terms and shorten the length of the contract. 

The agreement language clearly barred any modification of its terms that was not in writing. Therefore, the trial judge ruled for ADP. The Superior Court of Pennsylvania reversed. ADP v. Morrow Motors, Inc.,  2009 Pa. Super. 52, 969 A 2d 1244 (March 23, 2009). In summary, the Superior Court ruled that even though an agreement says that it cannot be modified except in writing, that does not mean what it says. The contract still can be modified orally. The only difference is that, “An oral modification of a written contract must be proved by clear, precise, and convincing evidence.” Moreover, the Court pointed out that the same law applied in New Jersey.  The client will have the opportunity to prove in court that ADP did orally agree to modify their contract --- despite the clear contract language barring an oral agreement.

How can this be explained?   Perhaps, the lesson to be learned may be simply that courts do not like to allow parties to mislead each other in their relationships. Even where it appears that the clear language is on your side, you often need some element of fairness to support your position as well. 

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In an unexpected move, the Pennsylvania Supreme Court declined to render a decision whether changes to the law of strict liability are necessary or desirable. The move comes as a surprise given the Court's response comes after it granted allocatur and heard oral arguments on the matter.   In the matter Bugosh v. I.U. North America, 971 A.2d 1228 (Pa. June 16, 2009) [dissent filed by Justice Saylor], the issue presented was whether changes in the current law applicable in product liability cases that hold suppliers and others strictly liable for injuries and harms are now (over)due,  i.e., adoption of the Restatement (Third) of Torts. Opponents of the current regime argue that strict liability is unfair and outdated. Specifically, in Bugosh, an asbestos litigation case, counsel argued that when the alleged harmful product was manufactured and supplied in 1965, mesothelioma, a condition caused by exposure to asbestos products was a medical unknown and to hold the supplier liable for a failure to warn of an unknown was unfair and illogical. Had the Court rendered a decision accepting a more modern approach or adoption of the Restatement Third in line with other states that have already steered away from the concept of strict liability it would open the doors to future defendants to introduce evidence of negligence/fault of plaintiffs in litigation. 

The Court refusal to render a decision comes as a further surprise given the recent line of cases evolving from the High Court seemingly steering course to a more modern approach or flat out adoption of the Restatement Third. See Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003) [with Concurring and Concurring & Dissenting opinions]. Spectators and other interested parties/persons likely are not alone in this surprise given a recent Third Circuit Court of Appeals decision in the matter of Berrier v. Simplicity Manufacturing, 563 F.3d. 38 (3d.Cir., 2009) whereby that Court, now seemingly prematurely, predicted that in line of the recent line of cases flowing from the Pennsylvania Supreme Court that the Court would adopt relevant provisions of the Restatement (Third) of Torts. 

So the question remains, what, if anything will become of the law of strict liability in Pennsylvania. In spite of the short sweeping away of the Bugosh matter, the answer may lie in the lengthy nearly 40 page dissent of two of the Justices indicating that the real question is not whether a change in law will arrive but when.    

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After delivering a historical low rate in patent allowances, the U.S. Patent and Trademark Office is now encountering a plunge in revenue. Patent applications have accumulated over the past 5 years, resulting from extended prosecution (i.e. continuations) and appeals. Since there is a tremendous backlog of patent applications, reducing the pendency of a patent application to collect issue and maintenance fees may seem like a viable option. 

While more scrutiny and searches are performed during extended prosecution, a detailed history may develop, which can affect future litigation. Relatively recently though, it seems that the examiners are expediting the prosecution phase, which may result in a favorable advantage for the applicant. Prosecution is advanced and prosecution history is somewhat limited. Although the quality of the examination should not suffer, this limited pendency means less scrutiny by the examiner, which should require more diligence by the patent attorney as to scope of protection. 

Since patent claims are the “metes and bounds” of the invention, which define the extent of the protection, patent attorneys are faced with the task of making sure that original drafted claims and amendments are value added; the appropriate scope of protection should be tailored only narrow enough to overcome prior art. The value of a patent claim depends on the patent’s ability to stand up in court against an accused infringer's right to challenge the validity of those claims. As the prosecution period becomes shorter and more expedited, claim drafting may require a more scrupulous review of patentability.

In general, narrow claims are more limiting, requiring an infringer to practice more limitations recited within the claim language. More limitations make it more difficult to assert patent rights against a known infringer. Additionally, patent claims that are too broad may read on undiscovered prior art, which may compromise the validity of patent. Therefore, it is recommended that prosecuting attorney focus on the value of the claims - as limitations may narrow the coverage an issued patent has over potential infringers. Additionally, it is recommended that patentability opinion work be performed prior to the filing of an application. A thorough review of the invention in light of search results should develop the appropriate scope of protection.

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In the case Wampum Hardware Co v. DEP (March 2009), the Environmental Hearing Board sustained an appeal of a DEP order which was issued to Wampum relative to a blast at Wampum's quarry. The blast in question ejected rock into the air, which rock was expelled several hundred feet from the site of the blast. The blaster established a 950 foot safety zone which was nearly twice the size required by DEP regulations. No rock was expelled from the safety zone. The closest that any rock landed to any person on the site was 250 feet. Rock from the blast traveled up to 700 feet from the blast, which clearly was beyond what would have been the required safety zone under the regulations. The regulation that DEP relied on to issue the Order provided: “blasting…may not be done or performed in a manner…constituting a hazard or danger or do harm or damage to persons or property in the area of the blasting.” The Board found that there was no evidence that any harm or hazard to persons or property in the area of the blasting, due to the size of the safety zone. As part of DEP's order, Wampum was direct to revise its blasting plan and as a result, agreed to change the material used for stemming shots, to lower the depth of stemming and to increase the delay in shots, each of which were designed to decrease the potential for flyrock. It appears that the Board missed the point that the blast at issue was not properly designed and fired, as rock traveled well beyond what would have been anticipated within the typical safety zone, the fact that no one was hurt was not due to design, but rather good luck. 

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The Environmental Hearing Board ("EHB") in the case of Douglass Township v. DEP and Synagro (April 2009), determined that the Department did not abuse its discretion in rejecting the Township's request to revise its approval for the land application of biosolids by limiting such land application only to exceptional quality sludge, requiring the applicator to provide advance notice to the Township prior to any land application, providing copies to the Township of any reports to be submitted to the Department and to provide the Township access to the site during any application activity.  The Board determined that the DEP was limited in its ability to impose only such conditions as "are necessary to protect public health and the environment from the adverse effects of pollutants in sewage sludge".  The Board determined that DEP engaged in sufficient consultation and cooperation with the Township prior to issuing its approval of the biosolids application to Synagro. 

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On June 8, 2009, the United States Supreme Court issued another 5-4 opinion. This time, the Court was policing its own. The case involved an appeals court judge in West Virginia who refused to recuse himself from an appeal of a $50M jury verdict. At the heart of the recusal request was a campaign contribution from the CEO of a party to the appeal who spent over $3M supporting the Judge’s campaign. The contribution amounted to more than 60% of the total amount spent in support of the Judge’s campaign. In an outcome that is only rivaled in the fiction of John Grisham, the Judge in question cast the tie breaking vote to overturn the verdict.

Justice Kennedy wrote for the majority, citing serious risk of actual bias and focusing on objective and disproportionate perceptions. He wrote “…when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent” there is a serious risk of bias. Per Justice Kennedy, ‘[t]he inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the elections, and the apparent effect such a contribution had on the outcome of ht election.”

Seems clear enough - the WV appeals judge should have recused himself. So why the 5-4 split on the High Court? While Kennedy’s words ring true and while we can probably all agree that there were some pretty egregious facts at play in this case, the majority’s opinion provides little guidance to the practitioner in states where judges are elected and not appointed. Justice Roberts dissented, writing “The Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.”

From one who routinely cares about elections and makes contributions to judicial campaigns in the hope that the judges before whom one appears will be fair, intelligent, prepared jurists, I’m a bit perplexed. When the mere allegation of impropriety can cause the transfer of a case or a significant delay while the issue is fought out, does this merely increase a party’s way of judge shopping?

Most commentators have heralded and praised the decision. They focus on the extraordinary facts - you can’t make this stuff up! I just worry about my clients and what this means for them if I make a contribution. Perhaps someone will print the road map soon.

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