Wrongful Death Actions in Pennsylvania

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The purpose of the Wrongful Death Statute, 42 Pa.C.S. § 8301, is to compensate the decedent’s relatives for their loss. Tulewicz v. Southeastern Pennsylvania Transportation Authority, 529 Pa. 588, 606 A.2d 427, 431 (1992). A wrongful death action does not compensate the decedent; it compensates the survivors (spouse, parents, children) for damages which they have sustained as a result of the decedent’s death. The damages recovered are therefore not part of the decedent’s estate; rather, they constitute compensation to the individual family members for their loss. Tulewicz., 606 A.2d at 431.  These damages can include the value of the services the victim who died would have rendered to his family if he had lived.” Slaseman v. Myers, 309 Pa.Super. 537, 545, 455 A.2d 1213, 1218 (1983).

Under the wrongful death act the widow or family is entitled, in addition to costs, to compensation for the loss of the contributions decedent would have made for such items as shelter, food, clothing, medical care, education, entertainment, gifts and recreation. Linebaugh v. Lehr, 351 Pa.Super. 135, 505 A.2d 303, 304-305 (1986).  Under Pennsylvania law, a child can recover in a wrongful death action for the loss of companionship, comfort, society and guidance of a parent. Steiner by Steiner v. Bell Telephone Co., 358 Pa.Super. 505, 510, 517 A.2d 1348, 1356 (1986), aff’d. 518 Pa. 57, 540 A.2d 266 (1988). This element of damages has also been described as “loss of guidance, tutelage, and moral upbringing.” Buchecker v. Reading Co., 271 Pa.Super. 35, 57, 412 A.2d 147, 158 (1979).

The damages recovered under a wrongful death action brought for the benefit of the spouse, children or parents of the deceased, whether or not citizens or residents of the Commonwealth or elsewhere, will be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy and without liability to creditors of the deceased person under the statutes of Pennsylvania.10 Summ. Pa. Jur. 2d Probate, Estates, and Trusts § 12:31 (2d ed.). Awards pursuant to wrongful death claims, therefore, pass outside of the decedent’s taxable probate estate under Pennsylvania’s inheritance tax provisions, and any claims by a decedent’s creditors cannot be made against a wrongful death award.  In re Estate of Merryman, 669 A.2d 1059 (Pa. Commw. Ct. 1995). Thus, a child’s share of a wrongful death award under a federal statute is not subject to payment of the decedent’s debts where the federal statute makes proceeds directly payable not to the estate, but to the personal representative on behalf of the decedent’s surviving spouse and children.  In re Sibilia’s Estate, 279 Pa. 459, 124 A. 137 (1924).

If you belive you have a claim for the wrongful death of a spouse, child or parent, please contact an attorney at Sidkoff, Pincus & Green, with offices in Philadelphia, Pennsylvania, and attorneys licensed in Pennsylvania and New Jersey.

Local Counsel is Required in Federal Court in the Eastern District of Pennsylvania

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The Local Rules of Civil Procedure for the U.S. District for the Easter District of Pennsylvania require that any attorney who is not a member of the Eastern District must hire an attorney that is a member as associate counsel of record.  Local Civil Rule of Procedure 83.5.2, titled “Associate Counsel,” states that unless appearing on behalf of the U.S. Government or a department or agency of the U.S. Government, any attorney who is not a member of the bar of the Eastern District, shall have a local counsel of record whom all pleadings, motions, notices and other papers can be served.  See, L.R.Civ.P. 83.5.2(a).

Non-member attorneys, who wish to appear in a case, must have local counsel file a Motion for their Pro Hac Vice Admission, pursuant to L.R.Civ.P. 83.5.2(b). The cost of filing such a motion is currently $40.  A sample form for a Motion for Pro Hac Vice Admission to the Eastern District is provided by the Clerk of Court and can be found on the Court’s website.  This form requires the applicant to state, inter alia, where he/she is currently licensed to practice, that the applicant affirms that he/she is in good standing of those state and/or federal bars, and that the applicant pledges to act in accordance with the law.  The local counsel, acting as sponsor for the applicant, must certify that, inter alia,  the applicant’ “private and personal character is good.”

Although the sample form provided by the Clerk is generally accepted by the judges of the Eastern District, it is important that local counsel be familiar with the preferences of each judge, because the form is not accepted by all.  For example, the Honorable Joel H. Slomsky provides in his “Policies and Procedures for Scheduling and Motion” that the form application provided by the Clerk is “inadequate.”  Judge Slomsky requires that counsel moving for the pro hac vice must explain why the party desires the attorney to participate and why the attorney is especially qualified to do so.

The attorneys at Sidkoff, Pincus & Green are capable of acting as local counsel and appear regularly in the Eastern District of Pennsylvania; they are familiar with the local rules of courts, trial practice, discovery procedures, and the preferences of the local judges.  Please contact an attorney at Sidkoff, Pincus & Green, with offices located in Philadelphia, if you have a need for local counsel.

Tortious Interference Claims in Pennsylvania (Absence of Privilege or Justification Defined)

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The tort of intentional interference with existing contractual relationships is governed by section 766 of the Restatement (Second) of Torts, which the Pennsylvania Supreme Court adopted in Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978). Section 766 provides as follows: One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract. Rest. 2d Torts § 766 (1979); Walnut St. Associates, Inc. v. Brokerage Concepts, Inc., 2009 PA Super 191, 982 A.2d 94, 97-98 (Pa. Super. Ct. 2009) aff’d, 610 Pa. 371, 20 A.3d 468 (2011).

The necessary elements of the cause of action are (1) the existence of a contractual relationship between the complainant and a third party; (2) an intent on the part of the defendant to harm the plaintiff by interfering with that contractual relationship; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual damage as a result of defendant’s conduct. Walnut St. Associates, Inc., 982 A.2d at 98.

With respect to the third element, proof must be shown that the defendant’s actions were improper under the circumstances; this is generally done through consideration of the factors listed in Restatement (Second) of Torts section 767.  The Restatement holds as follows, “In determining whether an actor’s conduct in intentionally interfering with a contract … is improper or not, consideration is given to the following factors: (a) the nature of the actor’s conduct; (b) the actor’s motive; (c) the interests of the others with which the actor’s conduct interferes; (d) the interests sought to be advanced by the actor; (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other; (f) the proximity or remoteness of the actor’s conduct to the interference; and (g) the relations between the parties.” Restatement (Second) of Torts § 767 (1979.)  There will not be liability for this tort where one intentionally causes a third person not to perform a contract by giving truthful information or honest advice within the scope of a request for the advice.  Restatement (Second) of Torts § 762; Walnut St. Associates, Inc., 982 A.2d at 98-99.  In addition, there are other factors listed in sections 768 through 773 of the Restatement (Second) that set forth specific circumstances in which interference with contractual relationships is not improper. Walnut St. Associates, Inc., 982 A.2d at 98-99.

If you believe that you have a potential claim for tortious interference, or you are being sued for tortious interference, please feel free to contact an attorney at Sidkoff, Pincus & Green, with offices in Phladelphia, Pennsylvania and attorneys licensed in Pennsylvania and New Jersey.

Tortious Interference Claims in Pennsylvania (Prospective Clients Defined)

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Under Pennsylvania law, the requisite elements of a cause of action for interference with prospective contractual relations are as follows: (1) a prospective contractual relationship;(2) the purpose or intent to harm the plaintiff by preventing the relation from occurring;(3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual damage resulting from the defendant’s conduct. Restatement (Second) of Torts § 766B (1979); Phillips v. Selig, 2008 PA Super 244, 959 A.2d 420, 428 (Pa. Super. Ct. 2008). With respect to the first element, the term “prospective contractual relationship,” has been regarded by the Pennsylvania Supreme Court as something less than a contractual hope, but something more than a mere hope. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 209, 412 A.2d 466, 471 (1979).

In determining whether there is a reasonable likelihood or probability of a prospective contractual relationship, courts will apply an objective standard and have consistently required more evidence than a current business or contractual relationship.  Philips, 959 A.2d at 428,429.  For example, in Thompson, the Court declined to find a prospective contractual relationship based on evidence that the parties had renewed a year-to-year lease for mineral rights for ten consecutive years.  Thompson, 412 A.2d at 472. Likewise, in Strickland v. University of Scranton, 700 A.2d 979, 983 (Pa.Super.1997), the Superior Court refused to acknowledge a prospective contractual relationship when a university administrator’s contract was not renewed after almost twenty-five years on the job. Strickland, 700 A.2d at 985. Accordingly, where a plaintiff attempts to prove a prospective contractual relationship by relying on an existing contractual relationship, the courts will deem that evidence, by itself, as insufficient as a matter of law.

If you believe that you have a potential claim for tortious interference, or you are being sued for tortious interference, please feel free to contact an attorney at Sidkoff, Pincus & Green, with offices in Phladelphia, Pennsylvania and attorneys licensed in Pennsylvania and New Jersey.

Civil Rights Actions under Section 1983: Brief Overview

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“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law….”  42 U.S.C. § 1983.

“In determining whether a Section 1983 action has been stated the inquiry must focus on whether the two essential elements of the action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.”  Frazier v. City of Philadelphia, 756 A.2d 80, 83 (Pa.Cmwlth. 2000) (citing Costa v. Frye, 588 A.2d 97, 99 (Pa.Cmwlth. 1991)).  “[T]o be under color of state law, the actor must have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.”  Frazier, supra.

Additionally, a local municipality is a “person” who may be directly liable under Section 1983.  Id.  See also Costa, supra (citing Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018 (1978)). Generally, “[s]ection 1983 imposes liability on a municipality when an official policy of the municipality causes an employee, acting under the color of law, to violate another’s constitutional rights.” Frazier, supra.

If you think you might have an action under Section 1983, please contact the experienced lawyers at Sidkoff, Pincus & Green in Philadelphia, who are licensed to practice law in all courts in Pennsylvania and New Jersey.

Reinstatement to the Pennsylvania Bar

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Rule 218 of the Pennsylvania Rules of Disciplinary Enforcement governs reinstatement procedures for attorneys who have been suspended for a period exceeding one year; retired, on inactive status or on administrative suspension if the formerly admitted attorney has not been on active status at any time within the past three years; transferred to inactive status as a result of the sale of his or her practice; or disbarred.  Pa.R.D.E. 218(a).  Generally, a formerly admitted attorney who has been disbarred may not apply for reinstatement to the bar until the expiration of five (5) years from the effective date of the disbarment.  Pa.R.D.E. 218(b).

“When reinstatement is sought by the disbarred attorney, the threshold question must be whether the magnitude of the breach of trust would permit the resumption of practice without a detrimental effect upon the integrity and standing of the bar or the administration of justice nor subversive of the public interest.”  Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 579, 506 A.2d 872, 875 (1986).  Under this standard, the Supreme Court conducts a two-part test.  The Court’s first consideration is whether the misconduct is so extreme as to bar readmission in itself; if the petitioner’s conduct is not so egregious as to preclude consideration of the petition for reinstatement, then, the Court must consider whether the petitioner can meet his burden of establishing by clear and convincing evidence that his current resumption of the practice of law would not have a detrimental impact on the integrity and standing of the bar, the administration of justice, or the public interest.  Matter of Costigan, 541 Pa. 459, 664 A.2d 518 (1995).  If the petitioner has met this burden, the Court may grant the petition for reinstatement.  Id.

In making a determination of reinstatement, the Court relies heavily on the amount of time that has passed since the petitioner’s disbarment, as well as the petitioner’s efforts at rehabilitation.  In re Perrone, 565 Pa. 563, 568, 777 A.2d 413, 416 (2001).  Essentially, the Court considers whether enough time has passed to dissipate the detrimental impact of the misconduct warranting disbarment.

If you are a formerly admitted attorney who is seeking reinstatement to the Pennsylvania Bar, please contact the experienced lawyers at Sidkoff, Pincus & Green in Philadelphia, who are licensed to practice law in all courts in Pennsylvania and New Jersey.

Invasion of Privacy Claims in Pennsylvania

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Under Pennsylvania law, there are four types of invasion of privacy claims: (1) intrusion upon seclusion; (2) appropriation of name or likeness; (3) publicity given to private life; and (4) publicity placing a person in a false light.  Santillo v. Reedel, 634 A.2d 264 (Pa.Super. 1993).

The Restatement (Second) of Torts sets forth the elements for each invasion of privacy claim under Sections 652B-E, as follows:

Under Section 652B: One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Under Section 652C: One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.

Under Section 652D: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter published is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.

Under Section 652E: One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

If you think you might have an action for invasion of privacy, please contact the experienced lawyers at Sidkoff, Pincus & Green in Philadelphia, who are licensed to practice law in all courts in Pennsylvania and New Jersey.

Defamation: Brief Overview

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Defamation is the tort of detracting from a person’s reputation, or injuring a person’s character, fame, or reputation, by false and malicious statements.  Joseph v. Scranton Times L.P., 959 A.2d 322 (Pa.Super. 2008).  “A publication is defamatory if it tends to blacken a person’s reputation or expose him to public hatred, contempt, or ridicule, or injure him in his business or profession.”  Id. at 334.  “[To]be actionable, the words must be untrue, unjustifiable, and injurious to the reputation of another.  When communications tend to lower a person in the estimation of the community, deter third persons from associating with him, or adversely affect his fitness for the proper conduct of his lawful business or profession, they are deemed defamatory.”  Id.

Under Pennsylvania law, a claim for defamation must allege: (1) the defamatory character of the communication; (2) publication; (3) that the communication refers to the complaining party; (4) the third party’s understanding of the communication’s defamatory character; and (5) injury.  42 Pa.C.S.A. Section 8343(a).  In most cases, a plaintiff must also allege special harm resulting to the plaintiff from the publication of the defamatory content.  Id.  “A complaint for defamation must allege with particularity the content of the defamatory statements, the identity of the persons making such statements, and the identity of the persons to whom the statements were made.”  Itri v. Lewis, 422 A.2d 591, 592 (Pa.Super. 1980).

If you think you might have an action for defamation, please contact the experienced lawyers at Sidkoff, Pincus & Green in Philadelphia, who are licensed to practice law in all courts in Pennsylvania and New Jersey.

Claims for Unfair Competition in Pennsylvania

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The Pennsylvania Court of Common Pleas has defined unfair competition according to its definition in the Restatement (Third) Unfair Competition § 1 (1995). See e.g. Babiarz v. Bell Atl.-Pa., Inc., 2001 WL 1808554, at *9 (Pa.Com.Pl. July 10, 2001); Lakeview Ambulance & Med. Servs., Inc. v. Gold Cross Ambulance & Med. Serv., Inc., 1995 WL 842000, at *1-2 (Pa.Com.Pl. Oct. 18, 1995). Under the Restatement (Third), “[o]ne who causes harm to the commercial relations of another by engaging in a business or trade is not subject to liability to the other for such harm unless … the harm results from … other acts or practices of the actor determined to be actionable as an unfair method of competition.” According to Comment G of the Restatement (Third), “[a]s a general matter, if the means of competition are otherwise tortious with respect to the injured party, they will also ordinarily constitute an unfair method of competition.” Hence, tortious interference may form the basis of a claim for unfair competition. ID Security Sys. Canada, Inc. v. Checkpoint Sys., Inc., 249 F.Supp.2d 622, 688 (E.D.Pa.2003).

Several judges in the Eastern District of Pennsylvania have applied the Restatement (Third) definition of unfair competition when faced with a Pennsylvania state law unfair competition claim. See, e.g., Synthes (USA) v. Globus Med., Inc., 2005 WL 2233441, at *9 (E.D.Pa. Sept. 14, 2005); Id Security, 249 F.Supp.2d at 688; Air Products and Chemicals, Inc. v. Inter-Chemical, Ltd.,2003 WL 22917491, at *12 (E.D.Pa. Dec. 2, 2003); Fresh Made, 2002 WL 31246922, at *9. To date, however, no appellate court in Pennsylvania has applied the Restatement (Third) to the common law tort of unfair competition.

According to the Third Circuit, “[a] claim of unfair competition under Pennsylvania law requires proof that the defendant has ‘passed off’ the goods of one manufacturer or vendor as those of another, thus creating confusion between his own goods, and those of the rival.” Scanvec Amiable Ltd. v. Chang, 80 Fed.Appx. 171, 180 (3d Cir.2003) (citing to Penn. State Univ. v. Univ. Orthopedics, Ltd., 706 A.2d 863, 870-71 (Pa.Super.Ct.1998)) (“The gist of the action lies in the deception practiced in ‘passing off’ the goods of one for that of another.”) Bldg. Materials Corp. of Am. v. Rotter, 535 F.Supp.2d 518 (E.D.Pa.2008).

If you have a claim for unfair competition, please contact an attorney at Sidkoff, Pincus & Green, with attorneys licensed in Pennsylania and New Jersey and offices in Philadelphia, Pennsylvania.

Legal Malpractice Claims in Pennsylvania

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In order to establish a claim of legal malpractice, a plaintiff must demonstrate three basic elements:

1) employment of the attorney or other basis for a duty; 2) the failure of the attorney to exercise ordinary skill and knowledge; and 3) that such negligence was the proximate cause of damage to the plaintiff. Rizzo v. Haines, 520 Pa. 484, 499, 555 A.2d 58, 65 (1989).

An essential element to this cause of action is proof of actual loss rather than a breach of a professional duty causing only nominal damages, speculative harm or the threat of future harm. Id. at 504-05, 555 A.2d at 68. Damages are considered remote or speculative only if there is uncertainty concerning the identification of the existence of damages rather than the ability to precisely calculate the amount or value of damages. Id. In essence, a legal malpractice action in Pennsylvania requires the plaintiff to prove that he had a viable cause of action against the party he wished to sue in the underlying case and that the attorney he hired was negligent in prosecuting or defending that underlying case (often referred to as proving a “case within a case”). Kituskie v. Corbman, 552 Pa. 275, 281, 714 A.2d 1027, 1029-30 (1998).

If you believe that you may have a viable claim for legal malpractice against your former Pennsylvania attorney, please feel free to contact an attorney at Sidkoff, Pincus  & Green, with attorneys licensed in New Jersey and Pennsylvania, and offices in Philadelphia, Pennsylvania.