Category: Business Law

Private Parties as State Actors under Section 1983

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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.

Thus, to establish a claim under Section 1983, a plaintiff must plead a deprivation of a right secured by the Constitution and the laws of the United States that was committed by a person acting under color of state law.  Machon v. Pennsylvania Dept. of Public Welfare, 847 F.Supp.2d 734 (E.D.Pa. 2012).  Where a plaintiff lodges a Section 1983 claim against a private party (as opposed to a governmental entity), the defendant can be held liable where he is “fairly said to be a state actor.”  Pugh v. Downs, 641 F. Supp.2d 468, 472 (E.D.Pa. 2009).  See also Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982) (stating that our cases have insisted that conduct allegedly causing deprivation of federal rights be fairly attributable to the state).

A private party can be “fairly said to be a state actor” for purposes of Section 1983 under four tests.  First, under the “close nexus” test a private party can be fairly said to be a state actor where “there is a sufficiently close nexus between the state and the challenged action of the [private] entity so that the action of the latter may fairly be treated as that of the state itself.”  Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (holding state responsible for private decision where it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed to be that of the State).  Second, under the “symbiotic relationship” test a private party can be fairly said to be a state actor where “the state has so far insinuated itself into a position of interdependence” with a private party that “it must be recognized as a joint participant in the challenged activity.”  Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (holding privately owned restaurant’s refusal to serve an African American customer constituted state action where the restaurant leased space from a parking garage owned by state agency).  Third, under the “joint action” test a private party can be fairly said to be a state actor where a private party is a “willful participant in joint action with the State or its agents.”  Lugar,457 U.S. at 941, 102 S.Ct. 2744 (1982).  Fourth, under the “public function” test a private party can be fairly said to be a state actor where the private party has been “delegated…a power traditionally exclusively reserved to the State.”  Terry v. Adams, 345 U.S. 461, 468-470, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) (state action found where private actor administered election of public officials).

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.

Philadelphia Business Lawyers: Intentional Interference with Contractual Relations under Pennsylvania law

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The tort of intentional interference with existing contractual relations is governed by Section 766 of the Restatement (Second) of Torts.  See Walnut Street Associates, Inc. v. Brokerage Concepts, Inc., 982 A.2d 94 (Pa.Super. 2009), aff’d, 610 Pa. 371 (2011).

Section 766 provides: “One who intentionally and improperly interferes with the performance of a contract…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.”  Restatement (Second) of Torts § 766 (1979).

“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 Street Associates, Inc., supra at 98; Small v. Juniata College, 682 A.2d 350, 354 (Pa.Super. 1996).

In determining whether a particular course of conduct is improper for purposes of setting forth a cause of action for intentional interference with contractual relationships, the court considers: 1) the nature of the actor’s conduct; 2) the actor’s motive; 3) the interests of the other with which the actor’s conduct interferes; 4) the interests sought to be advanced by the actor; 5) the proximity or remoteness of the actor’s conduct to interference, and 6) the relationship between the parties.  Ira G. Steffy & Son, Inc. v. Citizens Bank of Pennsylvania, 7 A.3d 278 (Pa.Super. 2010); Restatement (Second) of Torts § 767 (1979).

Further, there are specific circumstances in which interference with a contractual relationship is not improper.  For example, one who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not improperly interfere with the other’s contractual relation by giving the third party truthful information or honest advice within the scope of a request for advice.  See Restatement (Second) of Torts § 772 (1979); Walnut Street Associates, Inc., supra.

If you think you might have a claim for intentional interference with contractual relations, please contact the experienced lawyers at Sidkoff, Pincus & Green in Philadelphia at 215-574-0600, who are licensed to practice law in all courts in Pennsylvania and New Jersey.

Civil Conspiracy Claims in Pennsylvania

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“Civil conspiracy occurs when two or more persons combine or agree intending to commit an unlawful act or do an otherwise lawful act by unlawful means.”  Weaver v. Franklin County, 918 A.2d 194, 202 (Pa.Cmwlth. 2007).  A plaintiff bringing a civil conspiracy claim is required to aver “material facts which will either directly or inferentially establish elements of conspiracy.”  Id.  Additionally, a plaintiff must allege (1) the persons combined with a common purpose to do an unlawful act or to do a lawful act by unlawful means or unlawful purpose, (2) an overt act in furtherance of the common purpose has occurred, and (3) the plaintiff has incurred actual legal damage.  Id.  Importantly, absent a civil cause of action for a particular underlying act, there can be no cause of action for civil conspiracy to commit that act.  McKeeman v. Corestates Bank, N.A., 751 A.2d 655 (Pa.Super. 2000).

“Proof of malice, i.e., an intent to injure, is an essential part of a conspiracy cause of action; this unlawful intent must also be without justification.”  Reading Radio, Inc. v. Fink, 833 A.2d 199, 212 (Pa.Super. 2003).  Further, all of the elements of a claim for civil conspiracy may be proven circumstantially by subsequent acts of the alleged conspirators, provided that the evidence is “full, clear and satisfactory.”  Id.

If you think you might have an action for a civil conspiracy claim, or if you have been sued for committing civil conspiracy, 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.

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.

Whistleblower Protection for Employees under the Toxic Substances Control Act

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1. Employees and Employers Covered

The Toxic Substances Control Act (TSCA) regulates the industrial chemicals produced or imported into the U.S. The Act imposes guidelines for the EPA’s testing, inspection, and tracking of industrial chemicals, and allows the EPA to ban the manufacture of any chemicals considered to pose an unreasonably high risk. The Act protects all employees, public and private, from retaliation for reporting potential violations of TSCA or in any way assisting in proceedings or investigations of such violations. All employers are subject to the Act, including small businesses, associations, municipalities, any interstate body, and any department or agency of the Federal Government. This section does not apply to any employee, who acting without discretion from his employer deliberately violates any requirement of this chapter.

2. Protected Activities

An employer may not discharge or otherwise discriminate against an employee for reporting potential violations of TSCA to his/her employer or to the government, or for assisting in a proceeding arising 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 Department of Labor, through the Occupational Safety and Health Administration (OSHA).

In order to make a successful claim under TSCA, 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.  In order to avoid liability, the employer must demonstrate “clear and convincing evidence” that it would have taken the same unfavorable personnel action against the employee in the absence of the employee’s 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 attorney’s fees and compensatory damages.

5. Time to File: 30 days from alleged violation.

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

When Assent to a Contract is Obtained by Duress in Pennsylvania

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The formation of a valid contract requires the mutual assent of the contracting parties. Essner v. Shoemaker, 393 Pa. 422, 425, 143 A.2d 364, 366 (1958) (citation omitted). Mutual assent to a contract does not exist, however, when one of the contracting parties elicits the assent of the other contracting party by means of duress. Carrier v. William Penn Broadcasting Co., 426 Pa. 427, 431, 233 A.2d at 521 (1967). A contract obtained under duress is voidable but continues in operative effect until the injured party acts in opposition to the contract. Loizos v. Mutual of Omaha Ins. Co., 229 Pa. Super. 552, 326 A.2d 515 (1974) (citing Restatement of Contracts, s 495:”Where the duress of one party induces another to enter into a transaction, The nature of which he knows or has reason to know, and which he was under no duty to enter into, the transaction is voidable against the former and all who stand in no better position…”).

Duress has been defined as: [T]hat degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness…. The quality of firmness is assumed to exist in every person competent to contract, unless it appears that by reason of old age or other sufficient cause he is weak or infirm…. Where persons deal with each other on equal terms and at arm’s length, there is a presumption that the person alleging duress possesses ordinary firmness…. Moreover, in the absence of threats of actual bodily harm there can be no duress where the contracting party is free to consult with counsel….Carrier, 426 Pa. at 431 (citing Smith v. Lenchner, 204 Pa.Super. 500, 504, 205 A.2d 626, 628 (1964)). A party who has reasonable opportunity to consult with counsel before entering a contract cannot later invalidate it by claiming duress. Adams v. Adams, 2004 PA Super 130, 848 A.2d 991 (2004).

A Note on Mental Capacity and Assent

A signed document will give rise to the presumption that it accurately expresses the state of mind of the signing party. Shafer v. State Employes’ Retirement Bd., 548 Pa. 320, 696 A.2d 1186, 119 Ed. Law Rep. 1097 (1997); Estate of McGovern v. Com. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986), citing O’Farrell v. Steel City Piping Co., 266 Pa. Super. 219, 403 A.2d 1319 (1978); Forman v. Public School Employes’ Retirement Bd., 778 A.2d 778, 156 Ed. Law Rep. 650 (Pa. Commw. Ct. 2001). However, this presumption is rebutted where the challenger presents clear and convincing evidence of mental incompetence, and mental incompetence is established through evidence that the person was unable to understand the nature and consequences of the transaction at the very time he or she executed the instrument in question. Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 556 A.2d 819 (1989); Estate of McGovern v. Com. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986); Sobel v. Sobel, 435 Pa. 80, 254 A.2d 649 (1969).