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.

Retaliation Claims under the Federal False Claims Act

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Section 3730(h) of the False Claims Act prohibits retaliation against an individual asserting a violation of the Act.  The statute provides: “Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop one or more violations of this subchapter.” 31 U.S.C. Section 3730(h).  This is known as the anti-retaliation provision of the False Claims Act.

To establish a claim under Section 3730(h), a plaintiff must show “(1) he engaged in protected conduct, (i.e., acts done in furtherance of an action under Section 3730) and (2) that he was discriminated against because of his protected conduct.”  U.S. ex rel. Hefner v. Hackensack Univ. Med. Ctr., 495 F.3d 103, 110 (3d Cir. 2007).  “For a plaintiff to demonstrate that he was discriminated against because of conduct in furtherance of a False Claims Act suit, a plaintiff must show that (1) his employer had knowledge he was engaged in protected conduct; and (2) that his employer’s retaliation was motivated, at least in part, by the employee’s engaging in protected conduct.” Id. at 111. 

Section 3730(h) protects a wide variety of conduct, including investigation for, initiation of, testimony for, or assistance in bringing a claim under the False Claims Act.  Campion v. Ne. Utilities, 598 F. Supp. 2d 638, 648 (M.D.Pa. 2009).  Determining what activities constitute protected conduct under the statute is a fact specific inquiry.

If you think you might be a victim of retaliation for asserting a violation of the False Claims Act, 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.

Protection for Employees who are Retaliated against for Refusing to Work under Unsafe Conditions

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Section 11(c) of the Occupational Safety and Health Act of 1970 (“Act”), at 29 U.S.C. § 660(c), offers protection to employees who face retaliation for refusing to work in the face of imminent danger.  Section 11(c) of the Act renders the discrimination against or discharge of an employee for exercising “any right” protected under the Act unlawful. 29 U.S.C. § 660(c)(1). The Secretary of Labor promulgated a regulation, codified at 29 C.F.R. § 1977.12, defining certain “rights” which, although not delineated by Section 11(c), are protected under the Act. One such protected right, codified at 29 C.F.R. § 1977.12(b)(2), is an employee’s right to refuse to work under conditions the employee apprehends will subject him to serious injury or death.

By virtue of this regulation, where an employee is confronted with a choice of not performing an assigned task or performing the task under apprehension of serious injury or death, Section11(c) protects from subsequent discrimination or discharge the employee who, having no reasonable alternative, refuses to perform the assigned task. The employee’s apprehension of serious injury or death is measured by the standard of a reasonable person under the circumstances. To establish a violation of Section 11(c) the employee’s engagement in protected activity need not be the sole reason for the subsequent discharge but “a substantial reason for the action” or if the discharge “would not have taken place `but for’ engagement in protected activity.” 29 C.F.R. § 1977.6(b)

An employee who is retaliated against for complaining about workplace safety or refusing to work in the face of imminent danger must file a complaint with OSHA within 30 days of the retaliation.  The attorneys at Sidkoff, Pincus & Green, located in Philadelphia, Pennsylvania, are experienced in drafting such complaints.  If you have experenced employment retaliation, please feel free to contact an attorney at Sidkoff, Pincus & Green via email ([email protected]) or by phone at (215) 574-0600.

The Qui Tam Action under the Federal False Claims Act: Brief Overview

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“Qui tam” is the process by which an individual sues or prosecutes in the name of the government and shares in the proceeds of any successful litigation or settlement.  The name “qui tam” comes from the shortened version of a Latin phrase which roughly translates to “he who prosecutes for himself as well as for the King.”

The False Claims Act provides, inter alia: “Any person who (a) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; [or] (b) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim…is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000…plus 3 times the amount of damages which the Government sustains because of the act of that person[.]”  31 U.S.C. Section 3729(1)(a), (b).

Section 3730 of the False Claims Act sets forth that a private person may bring a civil action for a violation of Section 3729 for the person and for the United States Government.  31 U.S.C. Section 3730(b)(1).  The private person is known as a “Relator.”  The Government may elect to intervene and proceed with the action within 60 days after the Relator provides a copy of the Complaint and a written disclosure of substantially material evidence and information the Relator possesses.  31 U.S.C. Section 3730(b)(2).

The statute provides substantial rewards to a qui tam plaintiff.  Under Section 3730(d): “If the Government proceeds with an action brought by a person under subsection (b), such person shall…receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action.”  31 U.S.C. Section 3730(d)(1).  “If the Government does not proceed with an action under this section, the person bringing the action or settling the claim shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages.  The amount shall be not less than 25 percent and not more than 30 percent of the proceeds of the action or settlement and shall be paid out of such proceeds.  Such person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs.  All such expenses, fees, and costs shall be awarded against the defendant.”  31 U.S.C. Section 3730(d)(2).

If you have knowledge of a violation under the False Claims Act and seek more information about bringing a qui tam action, 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.