Articles by Our Attorneys

Employment discrimination headlines and more rulings on vaccine mandates dominated the news in October 2021.  Here are some of the key developments:

Jury awards $137 million verdict to African American subcontractor in Tesla racial harassment trial

A jury in California awarded $136.9 million to a former African American subcontractor after finding that the man was subjected to a hostile work environment at Tesla’s northern California factory.  The plaintiff, Owen Diaz, stated that his colleagues repeatedly referred to him using racial slurs, that he observed racist graffiti on the premises, and that the company was aware of the incidents and failed to act to stop it.  Tesla’s human resources representative acknowledged the use of racial slurs, but challenged that they responded to the Plaintiff’s complaints by firing two contractors and suspending another, and also pointed out that other witnesses reported that the slurs were primarily being used by African American colleagues in a “friendly” manner.  $130 million of the award was for punitive damages, with the remainder for past and future noneconomic damages.  Tesla has not announced whether it will appeal the verdict.  In any case, the verdict serves as a reminder of the importance of prompt and effective action from management when racially offensive behavior occurs in the workplace.

Jury rules in favor of white male in bias case and awards $10 million

A jury in North Carolina awarded a white male marketing vice president $10 million who was fired and replaced by two women, one of whom was African American, as part of a hospital’s ‘five year plan’ to boost diversity.  The Plaintiff, David Duvall, alleged that he was inexplicably terminated just days before reaching his 5 year work anniversary, which would have resulted in him receiving a higher severance payout than he was given.  He allegedly had regularly received “rave reviews” from his superiors prior to his termination, and was told at the time he was terminated that the decision to terminate his employment had nothing to do with his performance.  The hospital countered that Duvall was terminated for deficient performance.  Duvall’s attorney commented, “the case is about the fact that you cannot fire people just to create opportunities to fill positions.  It is not a case against diversity and inclusion”, pointing out that Duvall actually sat on a committee to promote diversity and inclusion while employed at the hospital.

First Circuit Court of Appeals declines to freeze Maine vaccine mandate despite not offering a religious exemption

The First Circuit has affirmed the denial of an injunction to eight workers in Maine and a Maine private health-care provider concerning Maine’s vaccine mandate.  The Plaintiffs sought to bar the state’s enforcement of an emergency rule requiring Covid-19 vaccinations for all employees at health-care facilities because the law failed to include a religious exemption.  The Plaintiffs asserted that that the lack of a religious exemption to the vaccination requirement violates their federal constitutional and statutory rights. They all sought exemptions based upon sincerely held religious beliefs that oppose taking the vaccine.  While the denial of the injunction is not the end of the challenge to the law, the ruling signals that the Court was not persuaded that the Plaintiffs were likely to prevail.  The Maine law does permit a medical exemption to the vaccine mandate.

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 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.  Jeff also practices in commercial litigation as well as counsels business on commercial contract ma

Recent changes to the bankruptcy preference law enhanced the defenses of creditors to preference claims. In a preference claim, the bankruptcy estate, the trustee, or a creditor’s committee is seeking return of money paid to the unsecured creditor in the 90 day period preceding the filing of bankruptcy by the debtor. Under the Bankruptcy Code, these payments are called preferences and preferential payments by the bankruptcy debtor to an unsecured creditor can be avoided and the unsecured creditor can be required to pay back the money it received within 90 days of debtor’s (its customer’s) bankruptcy.

Two changes in the preference law were enacted and serve to benefit the interests of unsecured creditors. First, Section 547(b) was amended to provide that the trustee can avoid payments/transfers to an unsecured creditor “based on reasonable due diligence in the circumstances of the case and taking into account a party’s known or reasonably known affirmative defenses under Subsection [547](c)”. Prior to this amendment, a bankruptcy trustee often made claims against all unsecured creditors who received payments from the bankruptcy debtor in the 90 days prior to bankruptcy based merely on an examination of the debtor’s payment ledgers and check registers, and without any inquiry into defenses that may be possessed by the unsecured creditor.  The bankruptcy estate/trustee must now do some actual investigation and due diligence into these claims before making a demand of the unsecured creditor and seeking to avoid the payments during the preference period. At minimum, this would appear to require that the estate/trustee inquire as to possible defenses such as whether the debt at issue, and payment thereof by the debtor, was in the ordinary course of business between the debtor and the unsecured creditor, and also whether value was given by the unsecured creditor, either contemporaneously with the transfer, or whether such value was given subsequent to the payments or transfers at issue by the debtor. Additional considerations that may be beneficial to an unsecured creditor in defending a preference claim are: what a court will consider to be reasonable due diligence by the estate/trustee before making a preference demand or filing a preference claim against the unsecured creditor; and  appropriate remedies for the failure of the estate/trustee to exercise reasonable due diligence.

The second and more recent change in the preference law involves situations where a lease or executory contract exists between the debtor and an unsecured creditor and, during the period between March 13, 2020 and March 13, 2022 the parties amend the lease or contract to defer or postpone payments otherwise due under the lease or contract. These payments are referred to as “covered arrearages” or “covered payments”. Under the amendment, the estate/trustee is prohibited from avoiding payments made by the debtor for these type of arrearages during the above-referenced period. Covered arrearages, however, do not include fees, penalties or interest imposed during the two year period.

Taken together, the changes to the preference law provide unsecured creditors with additional tools that both require a greater degree of diligence by the trustee and provide a substantial defense for the unsecured creditor, especially while the economy continues to recover from the COVID-19 Pandemic.

Federal government mandate regarding COVID-19 vaccination dominates the headlines in September 2021:

Biden Administration instructs OSHA to issue sweeping emergency COVID-19 mandate to private employers – will it survive legal challenges?

Earlier this month President Biden unveiled a 6 part plan to fight the spread of COVID-19, which includes calling on the Occupational Safety and Health Administration (“OSHA”) to issue an Emergency Temporary Standard (“ETS”) requiring workers at private companies with 100 or more employees to get vaccinated or submit weekly to COVID-19 testing.  The ETS is expected to impact more than 80 million private sector workers.

OSHA has the authority to issue emergency temporary standards only if it can show both that: 1) employees are exposed to grave danger from the hazard; and 2) the ETS is necessary to protect employees from that danger.  Notably, OSHA’s track record with ETS issuances is mixed.  According to the Congressional Research Service, in the nine times OSHA has issued an ETS prior to its COVID-19 health care ETS, the courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case.  An ETS can remain in place for 6 months, after which time it must be replaced by a permanent OSHA standard, which must undergo a formal rule making process, including a notice-and-comment period.

Here, much remains unknown about what the OSHA ETS will look like, including how the 100 employees will be counted, whether any guidance will be provided for how employers might collect and track weekly tests and their results, and whether any government assistance may be provided to help absorb the costs of the testing programs.  Regardless, there are hurdles that the ETS will need to clear, including its applicability to employers across very different work environments.  Notwithstanding the President’s sweeping directive, to pass scrutiny OSHA may find itself having to narrowly tailor the mandate to working atmospheres there require close interactions among employees where masking and social distancing is ineffective.

Employers and employees nationwide are eagerly awaiting action from OSHA.

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 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.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

You’re sitting at home one stormy night and you hear a crack of lightning – followed by a crash. You run to the window and see that your neighbor’s old oak tree that grew in their side yard is no longer in their side yard – it’s now in your side yard, and has crushed your deck. Who is to blame: your neighbor, or the storm? As attorneys are fond of saying, the answer is “it depends.”

In the past, the law in Pennsylvania treated trees and tree limbs as “natural conditions” of a property, and the owner of a tree was not liable for damage caused by a tree unless the damage occurred with the aid of human activity. This meant that the owner of a tree that fell onto a neighboring property because the tree was dead or diseased would not be liable for any damage the tree caused.

This approach partially changed as the countryside developed into suburban communities, and properties became smaller. In 1975, the Pennsylvania Superior Court declared that the owner of land in or adjacent to a “developed or residential area” is liable for damage caused by a tree on their property if they knew, or should have known, that a defect in the tree posed an unreasonable danger to persons or property outside their land and the damage occurred as a result of their failure to remedy the dangerous defect. The Court articulated a two-part duty of “reasonable care” on property owners to (1) learn of defective conditions in their trees and (2) remedy the condition by treating or removing the tree, or otherwise acting to remedy the danger posed by the condition.

Let’s break down that two-part duty, beginning with geographic areas where it applies to property owners. Courts have not defined what counts as a “developed or residential area”. However, they have stated that the focus is not on the property from which the tree fell, but instead on the property that was damaged by the falling tree. For example, the owner of a large, heavily wooded property which is located in an agricultural area but which has defective trees on the border of a dense residential area would likely be subject to the “reasonable care” standard described above.

Now let’s break down the two elements of a property owner’s duty. First, what must a property owner do to demonstrate “reasonable care” in learning of any defective conditions in their trees? Pennsylvania courts have held that, at a minimum, this requires owners to visually inspect the tree. Depending on the circumstances, however, owners may also have to take additional steps to learn of any defective conditions. The duty to address a defect entails whatever is sufficient under the circumstances to address the danger posed by the defect. In practice, property owners should periodically perform visual inspections of any trees on their property large enough to cause damage to other properties or persons. If an owner finds any signs of defects in a tree – or even if an apparently healthy-looking tree could cause damage to neighboring properties if it falls – the owner should consult a certified arborist to perform a detailed inspection and proposal for any necessary remediation. This will allow an owner to properly perform the second part of their legal duty: remedying the danger posed by the defect. Where the arborist’s recommended remediation entails removal of a limb or the entire tree, owners must take care not to perform the removal in a manner that causes injury to neighboring properties.

In addition to the common law duty described above, Pennsylvania property owners may face municipal regulations concerning the cutting or removal of trees. For example, all First Class Townships and Second Class Townships have the express authority to require property owners to trim or remove trees – diseased or otherwise – if the trees could obstruct the use of public roads or public property or otherwise effect public health, safety, or welfare. These municipal regulations most often apply where a municipality determines that a tree is blocking the vision of motorists at an intersection or where a defective tree could fall into a public right-of-way. An attorney who specializes in land use law will be able to advise a property owner who receives notice from their municipality about enforcement of these types of regulations.

Property owners involved in tree-related disputes or have questions about liability for damage caused by a tree should contact an attorney with experience in these matters. You may contact Matthew McKeon at [email protected], or by telephone at 610-840-0225. This article provides a general overview of the law. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

One of the most common questions people have after being injured in a Pennsylvania Car Accident is naturally: Who Will Pay My Medical Bills?

Most people think that the person who caused the accident is responsible, so his/her car insurance should pay.  That makes sense, but is usually wrong.

Pennsylvania No Fault System

Pennsylvania works under a No Fault System for the payment of medical bills.  What that means is that it doesn’t matter who was at fault for causing the accident.  Medical Bill coverage comes from YOUR OWN CAR INSURANCE POLICY.  This is regardless of what car you were in at the time of the crash or who was at fault for causing the accident.

If you are injured in a vehicle-related crash in Pennsylvania, then your own car insurance will pay your medical bills up to the amount of your coverage, which is usually $5,000, unless you paid for extra coverage (which you should because there are no co-pays or deductibles).

So, if you are injured as a driver of your own car, the driver or passenger of another car, as a pedestrian hit by a car, as a bus passenger, or as a bicycle rider hit by a car, YOUR OWN CAR INSURANCE will pay your medical bills.

Quiz Question

So, assume Karen is injured by being rear-ended while driving her boyfriend Tom’s car that was hit by Henry who was drunk and on his cell phone.  Karen doesn’t have car insurance but lives with her parents and they do.  Whose car insurance pays Karen’s medical bills???

The answer is Karen’s parents’ car insurance.  Car insurance follows the person, regardless of how they are injured or what car they are in.  As a relative residing with her parents, Karen is covered under her parents’ policy, so it is first in line to pay her medical bills.

What if Karen did not live with her parents?  Then, Tom’s policy would apply because Karen was driving his car with permission and is covered by his policy.

What Happens When No Fault Benefits Run Out?

If you are injured in a Car Accident and No Fault Medical Benefits are exhausted, then if you have health insurance, it has to pay your bills like any other illness.  However, your health insurance co-pays and deductibles will apply.

You can make a claim on the insurance of the driver responsible for causing the crash for reimbursement of the deductibles and co-pays.  Also, in some situations you may be required to make a claim for the medical bills your Health Insurance paid and pay the money back to your health insurance company.  This is called Subrogation.  Some health insurance plans can subrogate, and some cannot, so you or your lawyer will need to investigate.

If you have any other questions about your legal rights after a Car Accident contact Tim Rayne at 610-840-0124 or [email protected] or visit www.TimRayneLaw.com.

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.