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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.

Hostile Work Environment Claims under Title VII – Brief Overview

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Title VII of the Civil Rights Act makes it “an unlawful employment practice for an employer…to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.”  42 U.S.C. Section 2000e-2(a).  This provision further protects against discrimination that creates a hostile work environment.

To establish a hostile work environment claim under Title VII, a plaintiff must show: (1) he/she suffered intentional discrimination because of his/her membership in a protected class; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected him/her; (4) the discrimination would have detrimentally affected a reasonable person similarly situated in that protected class; and (5) there is a basis for employer liability.  Saidu-Kamara v. Parkway Corp., 155 F.Supp.2d 436 (Ed.Pa. 2001).

The discrimination complained of must be severe and/or pervasive enough to alter the conditions of the plaintiff’s employment and create an abusive working environment.  In determining whether a plaintiff has demonstrated the elements of a hostile work environment, a court will consider the frequency of the discrimination, its severity, whether it is physically threatening or a mere offensive utterance, and whether it reasonably interferes with the plaintiff’s work performance.  Id.

If you think you might be a victim of a hostile work environment, 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.

Retaliation Claims under Title VII – Brief Overview

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Title VII of the Civil Rights Act provides: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees…because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”  42 U.S.C. Section 2000e-3(a).  This is known as Title VII’s “anti-retaliation” provision.

To establish a claim for retaliation under the anti-retaliation provision, a plaintiff must demonstrate: (1) she engaged in “protected activity” under Title VII; (2) the employer took an adverse employment action against her; and (3) there was a causal connection between her participation in the protected activity and the adverse employment action.  Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. 2006).

Under the “protected activity” prong, Title VII protects those who participate in certain Title VII proceedings, or those who oppose unlawful discrimination practices.  The plaintiff must have a good faith belief that the conduct that she opposes is unlawful.

Adverse employment actions can take many forms including, but not limited to, termination, demotion, suspension, or even reassignment to a less desirable job.

If you think you might be a victim of retaliation under Title VII, please contact the experienced lawyers at Sidkoff, Pincus & Green, who are licensed to practice law in all courts in Pennsylvania and New Jersey.

Overview of PA Whistleblower Law

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The Pennsylvania Whistleblower Law, 43 P.S. § 1421, et seq. holds that no employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste. “Waste” is defined by the statute as “an employer’s conduct or omissions which result in substantial abuse, misuse, destruction or loss of funds or resources belonging to or derived from Commonwealth or political subdivision sources.” “Wrongdoing” is defined as “a violation which is not of a merely technical or minimal nature of a Federal or State statute or regulation, of a political subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest of the public or the employer.”

The PA Whistleblower Law also holds that no employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee is requested by an appropriate authority to participate in an investigation, hearing or inquiry held by an appropriate authority or in a court action.

In determining whether a plaintiff has an actionable case under the PA Whisteblower Law, it is essential to understand that the the terms “employee” and “employer” are limited in scope.  An employee is defined by the law as “a person who performs a service for wages or other remuneration under a contract of hire, written, or oral, express or impled, for a public body.”  A “public body” is defined as:(1) A State officer, agency, department, division, bureau, board, commission, council, authority or other body in the executive branch of State government;(2) A county, city, township, regional governing body, council, school district, special district or municipal corporation, or a board, department, commission, council or agency; or (3) Any other body which is created by Commonwealth or political subdivision authority or which is funded in any amount by or through Commonwealth or political subdivision authority or a member or employee of that body.

Importantly, the statute does not define an “employee” as a person performing services “under a contract of hire … with a public body,” but rather requires only that a person perform services “under a contract of hire … for a public body.”  Therefore, the courts have not interpreted this law to mean that an employee must be in privity of contact with a public body in order to bring a successful claim.  An employer is defined as “[a] person supervising one or more employees, including the employee in question; a superior of that supervisor; or an agent of a public body.” The use of semicolons and the word “or” in the statutory definition means that a person who satisfies any one of the three descriptions is an “employer” for purposes of the Whistleblower Law, even if that person does not satisfy the other descriptions.

A court, in rendering a judgment in an action brought under the Pa Whistleblower Law may order: reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate.  Punitive damages are not defined as an available remedy under the statute, and as such, the courts have not allowed for the recovery of such damages on this claim alone.

A claim made under this law must be brought within a court of competent jurisdiction within 180 days after the occurrence of the alleged violation.

For further information regarding claims and potential claims under the PA Whistleblower Law, please contact Sidkoff, Pincus & Green, with attorneys licensed in Pennsylvania and New Jersey and offices located in Philadelphia.

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.