Articles by Our Attorneys

I received a call from a tenant who said that she was renting a property and the next door neighbor, whose property was attached, had a catastrophic leak of heating oil in her basement which migrated underground and came up in her sump pump in her basement and was coming through the basement wall as well.  She said that there was a strong smell of heating oil in her property and a very strong smell in the neighbor’s property where the leak occurred.

I told her to leave the property because it was dangerous and have her landlord call me.  I then represented her landlord in a suit against the next door neighbor.

My client’s insurance company had an exclusion for the oil leak so he had no insurance coverage.  The next door neighbor, whose oil tank leaked, did have an insurance policy but it was not enough to pay for the clean up of my client’s property and her property and unless they were both cleaned up there would not be a permanent solution.

I contacted the owner of the next door property to see if she would obtain a reverse mortgage to pay the difference between the insurance proceeds and the cost to clean up both properties since she owned her property free and clear of liens and encumbrances.  It was going to cost over $200,000.00 to clean up both properties because the floor had to be taken out and the walls shorn up and all of the dirt underneath the cement basement floors removed.  The next door neighbor was not interested and her first attorney thought we were trying to trick her into doing something that was not in her best interest.  Fortunately, the attorney hired by the insurance company was a bright, experienced attorney who worked with me and together we were able to convince his client that the reverse mortgage was the best solution.  I also convinced the environmental company that did the clean up and another environmental company that obtained the Act 2 Clearances from the state so both properties would have clean title after the clean up, to do the work and then they would get paid all of the insurance proceeds with the balance to come when the next door neighbor entered into the reverse mortgage.

I was also able to recover out of the insurance and reverse mortgage proceeds all of the lost rent that my client had been unable to recover during the year it took to resolve this matter and clean up both properties.

If we had simply sued the next door neighbor we probably would have won but then would have had to sell her property in order to recover enough money to clean up both properties.  By thinking outside of the box and having counsel who realized that was the best resolution for both sides, we were able to clean up both properties, have my client made whole by getting his back rent paid and letting his next door neighbor keep her property so that she could live out the rest of her life there.  Sometimes it pays to think outside the box.

Attorney Michael Louis supports the needs of businesses and homeowners in a changing economic environment. He has extensive experience defending clients in mortgage foreclosures, collections and loan workouts, general counsel work and real estate litigation, including landlord-tenant litigation. In addition to practicing civil litigation as referenced above, Michael does bankruptcy for debtors and creditors. Michael has been with MacElree Harvey, Ltd. since 1980. He has received an “AV Preeminent” rating from Martindale-Hubbell, the highest level of professional excellence and ethical standards an attorney can receive from the national attorney peer review rating service. Michael has also been consistently named as one of Main Line Today’s “Top Lawyers” since 2009 and selected to Suburban Life’s “Awesome Attorneys” from 2012 through 2015. He has the highest rating possible on Avvo, which is derived from client reviews. To learn more about Michael, visit his bio.

Several cases with Pennsylvania connections made headlines in August 2021, including one featuring a celebrity from none-other-than West Chester, Pennsylvania, and one that may be an omen of significant future claims against Pennsylvania employers. Read all about it below:

1. Bam Margera files wrongful termination suit against MTV, Paramount, Johnny Knoxville and Spike Jonze over ‘Jackass 4’ firing. Bam Margera has filed suit alleging a host of equal employment law violations as well as breach of contract and fraud relating to Margera’s termination from the latest installment of the “Jackass” film franchise, in which he has been a long-time fixture.

Margera was allegedly fired for failing to adhere to a “wellness agreement” that required Margera to maintain his sobriety during filming.  The agreement required that Margera complete daily drug tests, breathalyzer and urinalysis tests and video chats with a doctor every morning to ensure he was taking his prescription medications.  Margera alleges in his lawsuit that he was forced under duress to sign the agreement, and that he was nevertheless complying with the agreement, but was terminated for taking prescription Adderall, which he had been prescribed for more than 10 years.  Among other claims, Margera asserts that he was discriminated against based upon his protected status due to his medical condition.

Margera is a former professional skateboarder and a native of West Chester, Pennsylvania, where he attended West Chester East High School.  The case is Brandon Cole Margera et al. v. Paramount Pictures Corp. et al., filed in the Superior Court of the State of California, County of Los Angeles.

2. Pennsylvania Welders file Class Action Suit seeking pay for Time Spent on Buses to Work Site. A lawsuit was filed in Pennsylvania state court this month by a proposed class of welders working on the construction of a petrochemical plant outside Pittsburgh.  The suit seeks back pay and overtime for hours the workers spent riding company shuttles to and from the job site, and time spent putting on and taking off protective gear.  The company reportedly required the workers to park at some distance from Shell Chemical Appalachia’s site in Beaver County and ride shuttles to and from work each day, and the workers did not get “clocked in” until they reached the site and had put on their gear for the day.

Notably, the action follows a July ruling by the Pennsylvania Supreme Court involving Amazon in which the Court held that time spent waiting in a security line before and after shifts was compensable under Pennsylvania state law.  My article on that case can be found here.  This latest action may be a sign of things to come for Pennsylvania employers whose workplaces include allegedly “mandatory” pre and post-work activities.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.

I had a client come in to see me who bought a property from a bank after the bank had foreclosed on their borrower and purchased it at sheriff’s sale.  The property was marketed by the realtors for the bank as having a gazebo, a beautiful stone two car garage and a certain amount of acreage.  It turned out that the bank, when it did its mortgage, had only included one tax parcel on the legal description and the gazebo, two car garage and almost half an acre of land, including half of my client’s driveway, was on a parcel that was not part of the bank’s mortgage.  Therefore when the bank bought the property at sheriff’s sale it only bought the house and half of the driveway.

My client relied on the advertisements by the realtors for the property and thought he was buying the entire property including the two car garage and gazebo.  The first part of this case was where I sued the bank, the realtors and the title company for negligently misrepresenting what my client was buying.  We were able to settle that case for the difference between the fair market value of his property with the garage and gazebo on it and its value without the garage, gazebo and extra land.

My client’s problem was that even though I was able to recover for him the difference between the value of his property without the garage and gazebo and half an acre of land it still didn’t allow him use of his garage, gazebo and half an acre of land.  We then went to the former owner who lost the home at sheriff’s sale but still owned the garage, gazebo and half an acre and tried to buy it from her but she was holding out for way more than the property was worth.  At first we tried to buy it at tax sale but the former owner paid the taxes.  Then, I used my prior experience in sheriff’s sales and mortgage foreclosures to do a lien search on her property and find an old judgment which I bought for my client for $1,000.00.  I then executed on the real estate and was able to buy my client’s garage and gazebo back for the amount we paid to buy the judgment plus the cost of taking it to sheriff’s sale.  Now, my client has his house, his entire driveway, his two car garage, gazebo and extra half acre of land.  Sometimes you have to just think outside the box.

Attorney Michael Louis supports the needs of businesses and homeowners in a changing economic environment. He has extensive experience defending clients in mortgage foreclosures, collections and loan workouts, general counsel work and real estate litigation, including landlord-tenant litigation. In addition to practicing civil litigation as referenced above, Michael does bankruptcy for debtors and creditors. Michael has been with MacElree Harvey, Ltd. since 1980. He has received an “AV Preeminent” rating from Martindale-Hubbell, the highest level of professional excellence and ethical standards an attorney can receive from the national attorney peer review rating service. Michael has also been consistently named as one of Main Line Today’s “Top Lawyers” since 2009 and selected to Suburban Life’s “Awesome Attorneys” from 2012 through 2015. He has the highest rating possible on Avvo, which is derived from client reviews. To learn more about Michael, visit his bio.

A pair of announcements from the White House and a major Pennsylvania wage-and-hour decision lead the employment law headlines for the month of July, 2021.  Get the details below:

1. President unveils measures to encourage more vaccinations through directive to federal employees. Under newly announced protocols from the White House, every federal employee (who number approximately 4 million) as well as onsite federal contractors will be required to prove that they are fully vaccinated. Anyone who cannot demonstrate they are vaccinated will be required to wear a mask on the job, no matter their location or physical distance from other employees and visitors.  Unvaccinated workers will also be tested once or twice a week and be subject to travel restrictions, according to the announcement of the White House.  The President also instructed the Department of Defense to consider adding the COVID-19 vaccine to the list of required vaccinations for members of the military.  The White House’s announcement follows similar vaccine announcements from the states of California and New York.
2. President’s order aims to promote worker mobility by restricting non-compete agreements. Earlier this month, President Biden issued an expansive executive order aimed at boosting competition across the U.S. economy.  Among the specific directives, the President’s order aims to promote worker mobility by restricting non-compete agreements.  Time will tell how this issue plays out. Commentators are questioning whether the President will direct the FTC to make non-compete agreements illegal entirely or merely unenforceable moving forward (banning them in the future).  Moreover, the question remains whether the FTC could create a carveout of some kind for non-competes that protect legitimate trade secrets. Ultimately, there will likely be legal challenges to the action at the federal and state level regardless of the approach that is taken. Read more.
3. PA Supreme Court takes expansive approach on Minimum Wage Act that could have far-reaching effects for Pennsylvania employers. A decision this month by the Pennsylvania Supreme Court – Neal Heimbach et al. v. Amazon.com Inc. et al. – could have far-reaching effects for Pennsylvania employers.  In Heimbach, the Court held the Pennsylvania Minimum Wage Act (“PMWA”) required that Amazon workers be paid for time spent undergoing mandatory security screening at Amazon warehouses at the conclusion of employee shifts.  The decision essentially holds that any activity “mandated” by an employer for the employer’s benefit is compensable under the Pennsylvania Minimum Wage Act, expanding the PA wage-and-hour law beyond the scope of the federal Fair Labor Standards Act and Portal to Portal Act. Read my full analysis on this issue here.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.

A decision this month by the Pennsylvania Supreme Court – Neal Heimbach et al. v. Amazon.com Inc. et al. – could have far-reaching effects for Pennsylvania employers.  In Heimbach, the Court held the Pennsylvania Minimum Wage Act (“PMWA”) required that Amazon workers be paid for time spent undergoing mandatory security screening at Amazon warehouses at the conclusion of employee shifts.  Significantly, the Court’s analysis makes clear that the wage-mandates of the PMWA are broader than federal wage-and-hour laws.  Therefore, Pennsylvania employers should take the time to re-examine their current wage payment practices, especially in the wake of increased administrative protocols being put in place relating to COVID-19 safety measures.

Federal vs. State wage-and-hour standards

In Heimbach, employees in Pennsylvania filed suit against Amazon relating to the security screening practice back in 2013.  However, the Heimbach decision comes in the wake of the December 2014, U.S. Supreme Court ruling in Integrity Staffing Solutions Inc. v. Jesse Busk et al., that the Delaware-based firm was not obligated under the Fair Labor Standards Act (“FLSA”) to compensate workers for the roughly 25 minutes a day they spend waiting to undergo a security screening to leave warehouses in Las Vegas and Fenley, Nevada.  The Integrity Court determined that the security checks were not a “principal activity” for the jobs and therefore fell within the FLSA exemptions under Portal to Portal Act of 1947 (“Portal Act”).

The U.S. Supreme Court has interpreted the Portal Act as requiring compensation for time spent on activities which are “integral and indispensable” to an employee’s principal activities.  According to the Court, “an activity is integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”  Therefore, employers are not required to pay for the time employees spend on activities occurring before or after (“preliminary or postliminary”) they perform the “principal activities” for which they are employed.  By way of example, washing up before or after work is generally not compensable time.  However, if the job involves toxic materials, washing up may be integral and indispensable because it involves worker safety and is therefore compensable. See Steiner v.  Mitchell, 350 U.S. 247, 252-53 (1956).

After a lower federal court ruled against the Pennsylvania workers in their case, the 6^th U.S. Circuit Court of Appeals asked the Pennsylvania Supreme Court to consider whether state employers are liable to pay workers for mandatory screening under the PMWA.  The PA Justices in Heimbach determined that they “are not bound” by Busk, distinguishing the federal and Pennsylvania statutes.  The Heimbach Court observed that the Portal Act “operates to reduce the amount of wages an employee is entitled to receive,” whereas the PMWA’s purpose is to protect workers’ wages and to “ameliorate employer practices which serve to artificially depress those wages”.

The Heimbach Court further distinguished state and federal laws, holding that under the PMWA, there is no “de minimis” exception to claims.  Under federal wage-and-hour precedent, the de minimis doctrine has been in place since 1946, when the U.S. Supreme Court said in Anderson v. Mt. Clemens Pottery Co. that employers do not have to deal with minor wage and hour claims over lost minutes of time.

The Heimbach decision ultimately hinged on the definition of “hours worked”.  Although the PMWA does not define “hours worked,” the PA Justices looked to state regulation, which defines the term as time that “an employee must be on site and is required to be on duty”.  Since the security screenings at the Amazon warehouse are mandatory, further analysis was not necessary: “[a]ll time spent by the employees waiting to undergo, and undergoing, the security screenings constitutes ‘hours worked,’” the Court wrote.  The Court further pointed out that the two exceptions to the PMWA – meal breaks and “employee convenience time” – were clearly not applicable: “[n]either exception is applicable under the facts of this case because, as recognized by the parties, the time Employees spend undergoing the security screenings is not “time allowed for meals”; nor are these screenings done for the convenience of the Employees, as they are required by Amazon of all employees and performed at its exclusive direction.”

The takeaway for PA employers: evaluate your pay practices now to avoid claims later

The Heimbach decision represents a victory for employees’ rights advocates seeking to expand PA wage-and-hour law beyond the confines of the FLSA and Portal Act.  The PA Supreme Court has now definitively ruled that there are no “de minimis” exceptions under the PMWA and that essentially any activity “mandated” by an employer for the employer’s benefit is compensable.  It remains to be determined how this ruling will effect employee compensation relative to COVID safety protocols.  Pre-Heimbach, a Pennsylvania employer could take the position that time spent undergoing safety protocols was not compensable under the theories that the protocols were not an integral and indispensable part of the employee’s principal activities, as well as arguing that the protocols were de minimis.  Heimbach dispels both of those arguments.  Accordingly, Pennsylvania employers should take a careful look at their policies now to ensure they are do not find themselves facing a class-action wage-and-hour lawsuit.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work envir