Category: Appeals in Courts

Sidkoff, Pincus & Green P.C. Successfully Defends Appeal to the Pennsylvania Supreme Court

By ,

hire-clauses

In an opinion issued on June 16, 2020, the Supreme Court of Pennsylvania Eastern District upheld an earlier ruling favoring Tel-Stream Inc. and its owner, Yury Karnei, a subcontractor that services cellular towers. Attorney Gary Green of Sidkoff, Pincus & Green P.C. represented Tel-Stream and Mr. Karnei.

Tel-Stream performed work for the appellant Rullex, a telecommunications construction company. Sometime after commencing the work, Mr. Karnei, on behalf of Tel-Stream, signed a master service agreement and non-competition agreement with Rullex. The non-competition agreement prohibited Tel-Stream from working for Rullex competitors. Mr. Karnei has a limited understanding of English and believed his company was free to perform services for competitors after it finished working for Rullex.

Subsequent to completing the Rullex project, Tel-Stream accepted a job from Invertice, a Rullex competitor. Rullex filed a lawsuit claiming that Mr. Karnei and Tel-Stream had breached the restrictive covenant. Rullex also filed a Motion for Preliminary Injunction to stop Tel-Stream and Mr. Karnei from working. During the initial preliminary injunction litigation, the parties testified that the non-competition agreement had been signed at a minimum months after Tel-Stream began working for Rullex. Attorney Gary Green argued that since the non-competition agreement was signed after Tel-Stream began working, and Rullex did not pay Tel-Stream additional consideration, then the non-competition agreement was unenforceable.

The Philadelphia Court of Common Pleas ruled in Tel-Stream’s favor, however, Rullex appealed to the Pennsylvania Superior Court. After the Superior Court ruled in Tel-Stream’s favor, Rullex then appealed to the Pennsylvania Supreme Court. In the Pennsylvania Supreme Court’s decision, Chief Justice Saylor wrote that the Common Pleas Court had acted properly in denying Rullex the motion for injunctive relief because Rullex failed to present evidence that Tel-Stream understood and accepted the terms of the non-competition agreement at the time it started working for Rullex.

Philadelphia Restrictive Covenant Lawyers at Sidkoff, Pincus & Green P.C. Help Clients with Non-Compete Agreements

 Non-compete and non-disclosure agreements are the two most common types of restrictive covenants that employers use to protect their business interests. It is not unusual, however, for questions to arise regarding the legality of restrictive covenants. The skilled Philadelphia restrictive covenant lawyers at Sidkoff, Pincus & Green P.C. are familiar with the nuances of these agreements and have been at the forefront of precedents established by Pennsylvania courts. If you have concerns about your restrictive covenant agreement, please call us at 215-574-0600 or contact us online for an initial consultation. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

  Category: Appeals in Courts
  Comments: Comments Off on Sidkoff, Pincus & Green P.C. Successfully Defends Appeal to the Pennsylvania Supreme Court
  Other posts by

Dismissing Federal Lawsuit Does Not Delay Statute of Limitations

By ,

Philadelphia appellant lawyers assist clients with the appeals for statute of limitations.In the case of Jaiden Buchan v. The Milton Hershey School, the Pennsylvania Superior Court recently ruled that the clock does not stop on the statute of limitations for making a claim in state court, simply because someone voluntarily withdraws a lawsuit. Buchan filed a complaint against the school in December of 2016, alleging that the school had violated the Americans with Disabilities Act (ADA) and the Fair Housing Act. She voluntarily withdrew her lawsuit against the school on June 19, 2017. The plaintiff filed a writ of summons in July of 2017, but the court ruled that the voluntary withdrawal of her lawsuit was not the same as a federal court dismissing the case for lack of jurisdiction.

According to Judge Alice Beck Dubow, since Buchan filed an action in federal district court, and then voluntarily dismissed it, this does not toll the statute of limitations. The Dauphin County Court of Common Pleas dismissed the case in April 2018, saying that since there was no pause caused by the federal suit, the window to file an action closed when Buchan turned 20, which was six months before she filed the Complaint in state court.

Claims Made by Buchan

Buychan claimed that the school neglected her mental health issues, unfairly punished her for getting a tattoo, and accused her of starting a fire at the school, which resulted in her being expelled from the school. She initially filed claims in the federal court in December 2016, alleging that the school intentionally inflicted emotional distress, as well as other violations of the ADA, including breach of fiduciary duties of care and malicious prosecution. However, Buchan withdrew the suit in June of 2017.

Later that year, Buchan filed a writ of summons in Dauphin County, and two months later she filed a complaint alleging negligence, breach of duties of care and good faith, emotional distress, and malicious prosecution. The state court dismissed the case, saying that it was time-barred. Buchan appealed, arguing that according to the Title 42, Section 5103 of Pennsylvania’s Consolidated Statutes, the statute of limitations is tolled when a case is dismissed for lack of jurisdiction. Because she withdrew her case, Buchan argued that she “rendered the federal court without federal jurisdiction.” As a result, her federal suit should have stopped the clock. In addition, she argued that the Title 28, Section 1367 of the U.S. Code gave her 30 days to refile in state court if a federal court did not exercise supplemental jurisdiction. According to Buchan, less than 30 days had passed between the voluntary dismissal and the first filing in the state lawsuit. Section 1367 included voluntarily dismissed cases.

The Superior Court ruled that the “voluntarily dismissed” part of Section 1367 only applies to claims that are not being considered by the federal court under supplemental jurisdiction. Judge Dubrow wrote that the language in the Section 1367 does not apply to Buchan’s case because she voluntarily dismissed all of the state law claims she asserted in her federal complaint under supplemental jurisdiction.

Philadelphia Appellant Lawyers at Sidkoff, Pincus & Green, P.C. Assist Clients with the Appeals Process

The Philadelphia appellant lawyers at Sidkoff, Pincus & Green, P.C. have extensive experience handling various types of appeals, including issues relating to employment discrimination, due process, and constitutional law, among others. To schedule a confidential consultation, call us today at 215-574-0600 or contact us online. Our offices are conveniently located in Center City Philadelphia, where we serve clients from Southeastern Pennsylvania, South Jersey, and New Jersey.

Third Circuit Court of Appeals Holds that Helicopter Pilots are not Exempt Under the FLSA

By ,

In Pignataro v. Port Authority of New York and New Jersey, the Third Circuit Court of Appeals held that that helicopter pilots did not fall under professional employee exemption. 593 F.3d 265 (3rd. Cir. 2010). Plaintiffs in this matter were helicopter pilots for the Port Authority of New York and New Jersey. Under the FLSA, employees are entitled to one-and-one-half their hourly rate for all time worked in excess of forty hours. Defendant claimed that both Plaintiffs qualified for an exemption to this general requirement known as the professional employee exemption.

In order to qualify under the professional employee exemption, an employee’s primary duties must require “work requiring knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance or routine mental, manual or physical processes.” This exemption is meant to be narrowly applied against the employer and is primarily applied to employees in an academic or scientific setting, such as lawyers, doctors, engineers, and teachers.

The Court held that the pilots did not qualify under this professional employee exemption because the pilots were not required to obtain academic degrees or spend any significant time in a classroom in order to obtain their license or certification. Most of the training was done though in-flight instruction, and the few written tests required did not qualify as “prolonged.”  Thus, the Court held that the specialized knowledge and unique skill of the pilots was not sufficient to qualify under the professional employee exemption.

For more information, call our Philadelphia employment lawyers for Fair Labor Standards Act in Philadelphia and South Jersey at the Law Office of Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

  Category: Appeals in Courts
  Comments: Comments Off on Third Circuit Court of Appeals Holds that Helicopter Pilots are not Exempt Under the FLSA
  Other posts by

Pennsylvania Property Case Heads to the Supreme Court

By ,

On March 5, 2018, the Supreme Court of the United States granted a Petition for Writ of Certiori to review Knick v. Scott Township, a Pennsylvania case addressing the procedure a property owner whose land was taken by the government under the 5th Amendment must follow prior to filing in federal court, and determine whether it should reconsider its holding in Willamson County Regional Planning Com’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). In Williamson, the Supreme Court ruled that a property owner filing a claim against the government for taking property without just compensation cannot file a case in federal court until he or she has first gotten a “final decision” from the appropriate state or local regulatory agency and has “exhausted” all possible remedies in state court.

In Knick, Plaintiff Rose Mary Knick lives on 90 acres of land in rural Pennsylvania. In 2012, the town in which Knick’s property is located passed an ordinance requiring all owners of cemeteries to provide public access to those sites during daylight hours. The town alleged that this ordinance applied to a private cemetery it contended was on Knick’s land. Although Knick sued the township in state court, the court declined to rule because the town had withdrawn its notice of violation and agreed not to enforce the ordinance against her. Knick next appealed in federal court, but the Middle District of Pennsylvania dismissed her claims for failure to exhaust all of her remedies in state court. On appeal, the 3rd Circuit ruled in favor of the Township.

For more information, call our business lawyers in Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

  Category: Appeals in Courts
  Comments: Comments Off on Pennsylvania Property Case Heads to the Supreme Court
  Other posts by

Court Rules Massage Therapy can be Covered by Workers’ Compensation

By ,

Many workers who have been injured on the job could benefit from massage therapy, depending on the nature of their condition. Passive modalities like massage therapy can save insurance companies extensive costs associated with more invasive treatment. However, many carriers view massages as an unnecessary luxury and not a proper medical treatment. Recently, the Commonwealth Court ruled that massage therapy can be covered under certain conditions.

Massage therapy has been shown to promote healing by stretching damaged tissues, reducing inflammation, and breaking down muscle adhesions. These can aid in the healing process. In the State of Pennsylvania, massage therapy has not been recognized as a covered medical treatment.

Schriver v. Workers’ Compensation Appeal Board

However, in late 2017, the Court provided a roadmap as to how injured workers could be reimbursed for expenses accrued for massage therapy.   In the case of Schriver v. Workers’ Compensation Appeal Board, an employee injured his back while working at the Department of Transportation.  The injury occurred nearly 40 years ago, in 1978. Since the accident, he had been receiving treatment from a general practitioner and a chiropractor.  The chiropractor referred the patient to massage therapy sessions once a month, priced at $60 per session, which the claimant paid himself.

Eventually, the injured worker sought reimbursement for the massage therapy, which was denied. He subsequently filed a petition, which culminated in two hearings.  A judge ultimately directed the employer to reimburse the claimant, but the Workers’ Compensation Appeal Board reversed the decision, and the claimant appealed to the Commonwealth Court.

He argued to the Court that his treatment was related to the work injury, and his licensed chiropractor had referred him for the treatment. The act mandates payment for services by a health care provider. This term has been defined to include individuals licensed by the commonwealth to provide health care services, or their agents.

Moran v. Workers’ Compensation Appeal Board

The court then ran through an extensive analysis of case law to illuminate the issue. In one prior case, the Court held that vocational experts are not licensed, therefore referrals to those practitioners should not be reimbursed by the employer. Another case set forth that massages should not be reimbursed when performed by an unlicensed masseur, even with a prescription. However, in the case of Moran v. Workers’ Compensation Appeal Board, the court ruled that massages could be covered when performed by a licensed nurse, as they are considered a health care provider under the terms of the act.

In Pennsylvania, the legislature passed the Massage Therapy Law in 2008.  This law provided licensure for massage therapists, but specifically states that a license does not automatically render treatment reimbursable under the Workers’ Compensation Act. In the case at bar, the claimant’s massage therapy was directed by his chiropractor, and the masseur was licensed.  On these grounds, the Commonwealth Court found that the employer was liable for reimbursing the injured employee.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Handle all Types of Employment-Related Claims and Appeals

The experienced Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. are available to answer questions about your case. To learn more about how we can help, call us today at 215-574-0600 or contact us online. Our offices are centrally located in Philadelphia, and we serve clients throughout Pennsylvania and New Jersey.