Category: Business Law


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.

Philadelphia Business Lawyers: Whistleblower Protection for Employees under the Clean Air Act

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1. Employees and Employers Covered

The purpose of the Clean Air Act (CAA) is to protect and enhance the Nation’s air resources so as to promote the public health and welfare, and to encourage and promote reasonable Federal, State, and local government actions for pollution prevention. The CAA is a comprehensive statute establishing standards for air quality, acceptable pollutants, and related reporting and inspection procedures. The Clean Air Act whistleblower provisions apply to all employees, public and private. And a civil suit may be commenced by “any person” against “any person,” with “person” being defined as “an individual, corporation, partnership, association, State, municipality, political subdivision of a State, and any agency, department, or instrumentality of the United States and any officer, agent, or employee thereof.” Thus, the Act provides broad coverage.

2. Protected Activities

Under the CAA, no employer may discharge or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee commenced or otherwise participated in a proceeding for the administration or enforcement of a requirement or plans imposed by this Act. Whistleblower cases are most often brought when a company misrepresents its emissions levels or fails to comply with reporting and cleanup standards. An employer may not retaliate against an employee who reports any misreporting or noncompliance by the employer.

Protections of employees under this Act shall not apply with respect to any employee who, acting without direction from his employer (or the employer’s agent), deliberately causes a violation of any requirement under the Act.

3. Proving Your Case

Any employee who believes he has been discharged or otherwise discriminated against by any person in violation with this provision may file, within 30 days after such violation occurs, a complaint with the Secretary of Labor.

In order to make a successful claim an employer must be covered by the CAA, the employee must have engaged in some protected activity, the employer must know of the employee’s protected activity, and the employee must have suffered some unfavorable action motivated at least in part by his/her protected activity.

4. Available Remedies

If an employee’s whistleblower claim is successful, he or she may be entitled to reinstatement with previous seniority and benefits, back pay with interest, and other relief including compensatory damages and attorney’s fees.

5. Time to File: 30 Days from Alleged Violation.

If you believe that you have a whistleblower claim under this Act, please contact an attorney at Sidkoff, Pincus & Green, located in Philadelphia, Pennsylvania. 

Philadelphia Business Lawyers: Whistleblower Protection for Employees under the National Transit Systems Security Act

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1. Employees and Employers Covered

Under the National Transit Systems Security Act (NTSSA), employees of public transportation agencies and their contractors and subcontractors may file complaints with the Secretary of Labor if they believe that they have experienced discrimination or retaliation for reporting an alleged violation of any federal law, rule, or regulation relating to public transportation safety or security, or fraud, waste, or abuse of federal grants or other public funds intended to be used for public transportation safety or security; reporting hazardous safety or security conditions; refusing to violate or assist in the violation of any federal law, rule, or regulation relating to public transportation safety or security; or refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties (under imminent danger circumstances).

2. Protected Activities

Other than the protection provided to employees for reporting violations of the act, an employee’s refusal to work in hazardous conditions is protected when it is made in good faith and no reasonable alternative to the refusal is available to the employee. A reasonable individual may receive protection when he or she concludes that: the hazardous condition presents an imminent danger of death or serious injury, the urgency of the situation does not allow sufficient time to eliminate the danger without such refusal, and the employee, where possible, has notified the public transportation agency of the existence of the hazardous condition and the intention to not perform further work.

3. Proving Your Case

Any person who believes that he or she was discharged or otherwise discriminated against in violation of this section may file within 180 days after the date on which the violation occurs. After receiving the complaint, the Secretary of Labor shall notify, in writing, the person named in the complaint of the allegations contained in the complaint, of the substance of evidence supporting the complaint, and the opportunities to be afforded to such person.

The Secretary shall dismiss a complaint unless the complainant makes a prima facie showing that any of the protected behavior was a contributing factor in the unfavorable personnel action alleged in the complaint. The complainant must also demonstrate through clear and convincing evidence that the employer would not have acted otherwise but for retaliation for whistleblowing.

4. Available Remedies

If the Secretary finds that the employer committed a violation of this statute, the Secretary shall order the employer to: take affirmative action to abate the violation, reinstate the complainant to his or her former position together with compensation (including back pay) and restore the terms, conditions, and privileges associated with his or her employment, and to provide compensatory damages. Punitive damages may be awarded up to $250,000.

5. Time to File: Within 180 days of the incident.

If you believe that you have a whistleblower claim under this Act, please contact an attorney at Sidkoff, Pincus & Green, located in Philadelphia, Pennsylvania.

Philadelphia Business Lawyers: Whistleblower Protection for Employees under the Pipeline Transportation Safety Improvement Act

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1. Employees and Employers Covered

Under the Pipeline Safety Improvement Act (PSIA), employees of owners or operators of pipeline facilities and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of federal law regarding pipeline safety or for refusing to violate such provisions.

2. Protected Activities

No employer, which is defined as a person owning or operating a pipeline facility, or a contractor or subcontractor of such a person, may discharge or otherwise discriminate against an employee who has provided information or is about to provide information regarding violations of Federal laws or provisions of this Act.

For instance, an employee is protected for providing information of violations regarding the following requirements of the Act which are designed to address safety concerns:

  • Requires strength-testing for previously untested natural gas transmission pipelines in high-population areas that operate at high pressure.
  • Requires pipeline operators to verify their records to confirm the pipelines’ physical and operational characteristics and their established maximum allowable operating pressure;
  • Authorizes additional pipeline inspectors and pipeline safety support employees through a phased-in increase over four years;
  • Requires pipeline operators to report all maximum allowable operating pressure exceedances to the Department of Transportation;
  • Increases the cap on civil penalties for violators of pipeline regulations and adds civil penalties for obstructing investigations;
  • Requires installation of automatic or remote-control shut-off valves on new pipelines

3. Proving Your Case

Any person who believes that he or she was discharged or otherwise discriminated against in violation of this section may file within 180 days after the date on which the violation occurs. After receiving the complaint, the Secretary of Labor shall notify, in writing, the person named in the complaint of the allegations contained in the complaint, of the substance of evidence supporting the complaint, and the opportunities to be afforded to such person.

The Secretary shall dismiss a complaint unless the complainant makes a prima facie showing that any of the protected behavior was a contributing factor in the unfavorable personnel action alleged in the complaint. The complainant must also demonstrate through clear and convincing evidence that the employer would not have acted otherwise but for retaliation for whistleblowing.

If the Secretary finds that a complaint is frivolous or brought in bad faith, up to $1000 may be awarded to the employer, paid by the complainant.

4. Available Remedies

Where OSHA finds a violation after investigating complaints under the other statutes listed above, it may issue a determination letter requiring the employer to pay back wages, reinstate the employee, reimburse the employee for attorney and expert witness fees, and take other steps to providenecessary relief. Complaints found not to have merit will be dismissed.

5. Time to File: Within 180 days of the incident.

If you believe that you have a whistleblower claim under this Act, please contact an attorney at Sidkoff, Pincus & Green, located in Philadelphia, Pennsylvania.

Philadelphia Business Lawyers: The Implied Covenant of Good Faith and Fair Dealing in Pennsylvania

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Every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement. Restatement (Second) of Contracts § 205 (1985).  In Pennsylvania, the law is clear that “[i]n the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party’s right to receive the fruits of the contract. Accordingly, a promise to do an act necessary to carry out the contract must be implied.” Daniel B. Van Campen Corp. v. Building & Construction Trades Council, 195 A.2d 134, 136-137 (Pa. Super. Ct. 1963).

The covenant of good faith and fair dealing, although implied in every contract, is used to interpret the contract and generally does not give rise to a separate cause of action, either in tort or contract. Therefore, an implied duty of good faith will be read into the performance of every agreement so that the court may evaluate whether the terms of an agreement have been breached.  However, if the court determines there was a breach, the consequence will be breach of contract rather than an independent breach of a duty of good faith and fair dealing.

Furthermore, Pennsylvania law does not recognize a claim for breach of covenant of good faith and fair dealing as an independent cause of action separate from the breach of contract claim since the actions forming the basis of the breach of contract claim are essentially the same as the actions forming the basis of the bad faith claim.  McHale v. NuEnergy Group, No. 01-4111, 2002 U.S. Dist. LEXIS 3307, at *23 (E.D.Pa. Feb. 27, 2002). For that reason, a claim based on breach of the covenant of good faith and fair dealing, when embedded within a complaint that also alleges breach of contract, will be regarded by the courts as nothing more than a carbon copy of the breach of contract claim.

Philadelphia Business Lawyers: The Doctrine of Equitable Estoppel in Pennsylvania

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Equitable estoppel is thought of as a shield, not a sword.  It does not itself create a cause of action, but is used to prevent an unjust result and to preserve rights that are already acquired.  As defined by the courts in Pennsylvania, the doctrine of equitable estoppel applies when one person, by his or her acts, representations, or admissions or by his or her silence when he or she ought to speak out, intentionally or through culpable negligence induces another person to believe certain facts to exist and such other person rightfully relies and acts on such belief, so that he or she will be prejudiced if the former is permitted to deny the existence of such facts. Price v. Chevrolet Motor Div. of General Motors Corp., 2000 PA Super 410, 765 A.2d 800, 43 U.C.C. Rep. Serv. 2d 593 (2000); Zitelli v. Dermatology Educ. and Research Foundation, 534 Pa. 360, 633 A.2d 134, 87 Ed. Law Rep. 157 (1993).

The two essential elements of equitable estoppel are inducement and justifiable reliance on that inducement. The inducement may be words or conduct and the acts that are induced may be by commission or forbearance provided that a change in condition results causing disadvantage to the one induced. Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 436, 457 A.2d 502, 503-04 (1983) (citing Funds for Business Growth, Inc. v. Woodland Marble and Tile Company, 443 Pa. 281, 278 A.2d 922 (1971); Ham v. Gouge, 214 Pa.Super. 423, 257 A.2d 650 (1969)).  There will be no equitable estoppel where the complainant’s act appears to be the result of his or her own will or judgment rather than the product of what the defendant did or represented.  Some courts view this issue – whether the complainant knew or should have known about the facts (duty of inquiry) – as the third element of equitable estoppel. Chester Extended Care Center v. Com., Dept. of Public Welfare, 526 Pa. 350, 586 A.2d 379 (1991); Appeal of Heim, 151 Pa. Commw. 438, 617 A.2d 74 (1992).

Generally stated, equitable estoppel applies to prevent a party from assuming a position or asserting a right to another’s disadvantage inconsistent with a position previously taken. The person inducing the belief in the existence of a certain state of facts is estopped to deny that the state of facts does in truth exist, over a different or contrary state of facts as existing at the same time, or deny or repudiate his acts, conduct or statements.  Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 436, 457 A.2d 502, 503-04 (1983). (internal citations omitted).  The burden of proof rests on the party asserting the estoppel to establish such estoppel by clear, precise and unequivocal evidence. Id.

Philadelphia Business Lawyers: The Basics Elements of a Breach of Contract Action

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In Pennsylvania, a breach of contract action involves (1) the existence of a contract, (2) a breach of a duty imposed by the contract, and (3) damages.  J.F. Walker Co., Inc. v. Excalibur Oil Group, Inc.,792 A.2d 1269 (Pa.Super.2002). Additionally, it is axiomatic that a contract may be manifest orally, in writing, or as an inference from the acts and conduct of the parties. John Edward Murray, Jr., Cases and Materials on Contracts 184 (3rd ed.1983) (citation omitted).

Nevertheless, the Statute of Frauds, as applied in Pennsylvania, renders oral contracts for the sale of real estate as unenforceable, although not invalid.  Therefore, such oral contracts will not be specifically enforced, but they may possibly form the basis for an action to recover damages. Hostetter v. Hoover, 378 Pa.Super. 1, 547 A.2d 1247, 1250 (1988), Alloc. denied 523 Pa. 642, 565 A.2d 1167 (1989).  The purpose of the statute is to prevent perjury and fraudulent claims. Id.

In a breach of contract action, damages are awarded to compensate the injured party for loss suffered due to the breach. The purpose of damages is to put the plaintiff in the position he or she would have been in but for the breach. Maxwell v. Schaefer, 381 Pa. 13, 21, 112 A.2d 69, 73 (1955); Harman v. Chambers, 358 Pa. 516, 521, 57 A.2d 842, 845 (1948); Mancini v. Morrow, 312 Pa.Super. 192, 204, 458 A.2d 580, 586 (1983). The measure of recovery and the method of evaluation that are adopted should in every case be so adjusted as to attain as nearly as possible the purpose of our system of remedial justice. This purpose is to put the injured party in as good a position as the promised performance would have put him, having regard both to the reasonable foreseeability of the harm and to the extent that it could reasonably have been avoided by the injured party himself.  5 Corbin on Contracts § 1005 at 63 (1951).