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					          TOP CASES                                                                                          March 2010

                                          TABLE OF CONTENTS
      TC2                 TC3                  TC4                      TC5                        TC6                    TC7
Mohawk Industries: A   Eminent Domain   State Budget Impasse:    Say It Isn’t So: Release   No Wrongful Discharge       Top Verdicts &
 Pragmatic Decision    Development in   The Political Question   of Principal No Longer      for Discrimination By   Settlements of 2009
                        Pennsylvania      Doctrine, Statutory      Releases Agent in          Smallest Employers
                                          Interpretation and     Certain Circumstances
                                         Federal Pre-Emption

A supplement to:
TC 2 • Top Cases                                                          t u e s d a y, m a r c h 9 , 2 0 1 0                                                                                March 2010

Mohawk Industries: A Pragmatic Decision
By Neal Troum                                                                                           by attempting to have Mohawk hire an                  category [of] decisions that are conclusive,
                                                                           NeAl Troum,              a
Special to the Legal                                                                                    undocumented worker.”                                 that resolve important questions separate
                                                                           senior associate in
                                                                                                           In his suit against Mohawk, Carpenter              from the merits, and that are effectively

                                                                           Stradley Ronon Stevens
     n law, as in comedy, timing can be every-                             & Young’s litigation         sought to force the disclosure of information         unreviewable on appeal from the final judg-
     thing. The joke may be funny, but if the                              practice group, repre-       relating to his meeting with Mohawk’s class           ment in the underlying action.” Efficiency
     punch line comes too late, it can flop. The                           sents clients in a wide      action counsel and the decision to terminate          also entered into the equation, according to
same can be said for a circumscribed set of                                array of practice areas.     him. The district court decided that the              the court, preventing “piecemeal, prejudg-
non-final rulings by a trial court. If you cannot                          His legal practice focuses   information sought was in fact privileged,            ment appeals.”
appeal such rulings immediately, the relief you                            on insurance law, appel-     but that the privilege had been waived.                  It is true, at least in a technical sense, that
seek may be effectively unattainable.                                      late practice, products      Mohawk sought interlocutory review of this            the decision of the district court requiring
   Think of bail, for example. What good            liability, banking and other complex litigation     decision, but the 11th U.S. Circuit Court of          disclosure of the information Carpenter
would it do after the fact for an appellate court   matters. He can be contacted at ntroum@             Appeals and the U.S. Supreme Court held               sought could be reviewed on appeal. That is,
to decide that a criminal defendant should                                                              that the district court’s ruling could only be        a court of appeals could decide the privilege
have been set free on bail? That defendant          qualified immunity? As decided by the               reviewed after the case was over.                     had not been waived and “vacat[e] [the]
cannot get back the time spent incarcerated.        Supreme Court in Mohawk Industries v.                  It is important to note two things relating        adverse judgment and remand[] for a new
Think of immunity from suit. What comfort           Carpenter, they are not.                            to the issue before the Mohawk court. First,          trial in which the protected material and its
is there if, after going through pleadings and         Under Mohawk, orders requiring disclosure        waiver issues aside, the information Carpenter        fruits are excluded from evidence.” It also
motion practice and discovery and trial and         of what one side claims are privileged com-         sought was unquestionably core protected              cannot be denied that it is more efficient —
appeal, an appellate court finds that the party     munications cannot be appealed until after          attorney-client communications. Internal              both in terms of the progress of any one case
sued should not have been subject to suit in        the case has concluded. This decision can be        communications with company attorneys to              and the functioning of a court system as a
the first place? The fact of the litigation hav-    seen as many things, but at some level, it          decide whether or not to dismiss an employ-           whole — to require litigants such as Mohawk
ing taken place cannot be undone.                   comes down to pragmatism and practicality.          ee and communications between company                 to wait for final judgment to appeal.
   The collateral order doctrine exists for just       The facts in Mohawk are complicated.             attorneys and a company employee relating                But what about the third part of the inter-
such circumstances. It recognizes the futility      Mohawk employee Norman Carpenter told               to allegations in a pending suit against the          locutory appeal standard, which looks at
of trying to put the toothpaste back into the       Mohawk’s human resources department that            company are as privileged as you get.                 whether a right can be adequately vindicated
tube. The collateral order doctrine acknowl-        the company was hiring undocumented                    Second, the information the district court         on appeal after the entry of final judgment?
edges that, for a small number of decisions by      immigrants. Unbeknownst to Carpenter, a             ordered disclosed could have turned out to            Did the court get it right in holding that
a trial court, it’s now or never as to review by    class action was pending against Mohawk,            be (and, if Carpenter was right, in fact was) a       Mohawk’s rights could be vindicated later
a higher tribunal. Thus, even though there          accusing it of driving down wages by hiring         smoking gun in both Carpenter’s suit and the          on? The court recognized that a contrary
has not been a “final decision” under 28            illegal workers. Carpenter was directed to          class action. That is, if Mohawk in fact fired        decision, allowing interlocutory review,
U.S.C. § 1291, some decisions by a trial court      meet with Mohawk’s counsel in the class             Carpenter for complaining about the com-              might afford “the chance that … a particular
can be reviewed by a court of appeals imme-         action. Carpenter claimed that Mohawk’s             pany’s hiring of undocumented workers and             injustice [might be] averted.” The court fur-
diately.                                            counsel pressured him to recant, and when           refusing to recant this allegation, it is difficult   ther noted that requiring a litigant to wait
   But what about orders requiring the dis-         he refused, he was fired.                           to see how Mohawk could do anything but               until the case is over to appeal a ruling sepa-
closure of information that a party claims is          Carpenter then sued Mohawk for unlawful          settle as soon as possible and cut its losses.        rate from the merits — such as a ruling
protected by the attorney-client privilege?         termination. In an ironic twist, Mohawk                Nonetheless, the Mohawk court concluded            requiring disclosure of attorney-client-priv-
Are such orders like the denial of bail or the      claimed that Carpenter was fired because he         that disclosure of claimed attorney-client            ilege-protected information — “may burden
rejection of the defense of sovereign or            had “engaged in blatant and illegal conduct         communications was not among the “small                                     Privilege continues on TC10
March 2010                                                             t u e s d a y, m a r c h 9 , 2 0 1 0                                                                To p C a s e s • T C 3

eminent Domain Development in Pennsylvania
Non-Blighted Property May Not Be Condemned for Economic Development
By miChael K. Parrish                                                                                its development purposes.                        cannot be considered blighted due to the
aNd maNdi l. sCoTT                                                                                      RALC was formed pursuant to the               economic undesirability of the present uses
Special to the Legal                                                                                 Pennsylvania Urban Redevelopment Law             and where no physical conditions of blight
                                                                                                     and therefore its power to condemn is defined    exist, the public purpose, i.e., elimination of

        ew issues grate on the American con-                                                         by the URL. According to the URL (which          blight, is absent and the condemnation is not
        science more than condemnation for                                                           was amended in 2005), properties may only        justified.”
        economic development. The U.S.                                                               be condemned if they are blighted or — if           RALC filed a petition for allowance of
Supreme Court’s 2005 decision in Kelo v. City                                                        they are located within a legitimately desig-    appeal to the Pennsylvania Supreme Court,
of New London spawned a national reaction                                                            nated redevelopment area — if the redevel-       which was denied on June 23, 2009.
                                                  PArrish           scoTT
from the media and from legislatures that         michAel K. PArrish, a shareholder and              opment area exhibits traditional physical           Therefore, the property owners were able
were quick to enact legislation that showed       director at Pittsburgh-based Goehring Rutter       characteristics of blight, such as abandon-      to keep their properties, and, in the case of
their rejection of these divestures of private    & Boehm, is a member of the firm’s real estate     ment, disrepair and dangerous conditions.        one of the condemnees, their home. Pursuant
property. State courts have also pledged their    and estate planning and administration                The property owners challenged RALC’s         to the Eminent Domain Code, the property
allegiance to private property protection and     groups. He represents individuals and small        attempt to condemn their properties as           owners are also entitled to reimbursement of
refused to follow the Kelo holding.               businesses in real estate conveyancing and         blighted because it was undisputed that nei-     their attorney fees incurred in defending
   Pennsylvania has recently joined their         municipal land use approval processes, as well     ther property was blighted on an individual      against RALC’s illegal condemnation
ranks with a case involving condemnations of      as landowners and municipalities in eminent        basis, nor were they located in a valid rede-    attempts.
a home and a commercial property, In re           domain disputes. He can be reached at mpar-        velopment area.                                     According to the Commonwealth Court,
                                                                              At the trial court level, the Court of        the critical issue before it was whether the
Condemnation by the Redevelopment Authority
of Lawrence County.
                                                  mANDi l. scoTT, an associate at the firm,          Common Pleas of Lawrence County first            URL, in including “economically undesirable
                                                  has developed a niche in the area of appellate
   In September 2004, the Redevelopment                                                              confirmed that the properties were not           use” as one of the criteria that could render an
                                                  practice, but also represents public schools and
Authority of Lawrence County (RALC) filed         municipalities in various operational matters,     blighted and were not part of a larger rede-     area blighted, “opens the door” to a condem-
declarations of taking against two properties     as well as land developers in zoning and land      velopment area. Nor could the properties be      nation for purely economic development
located in Neshannock Township, Lawrence          development disputes. She can be reached at        considered “socially undesirable.” The trial     purposes. Part of the Commonwealth Court’s
County. The properties are located in a                                  court went on to hold, however, that the         analysis was based on an examination of Kelo
500-acre area that RALC, the condemnor,                                                              condemnations were proper because the            v. City of New London.
described as “undeveloped greenspace.” The       the development of an industrial park known         properties, which are located in an industrial      Since the U.S. Supreme Court’s decision
smaller parcel, consisting of approximately      as Millennium Park.                                 zoning district, were “economically undesir-     of Berman v. Parker, states have been permit-
2.5 acres, houses a structure used for both         The county formed RALC in 2003 after it          able” because their current uses were less       ted to condemn areas of urban blight for the
residential and industrial purposes. The larg-   became apparent that the owners of the              financially desirable than they would be if      legitimate public purpose of eradicating
er parcel consists of approximately 84 acres     above properties were not willing to sell their     given to the LCEDC.                              blight. However, in Kelo, the Supreme Court
of rolling hillsides with a beautiful new home   property to the Lawrence County Economic               On appeal, the en banc Commonwealth           upheld a condemnation of residential build-
completed in 2002.                               Development Corporation (LCEDC). The                Court reversed the holding of the trial court.   ings that, similar to the properties at issue in
   The purpose of the condemnations, as          plan was for RALC to condemn the proper-            In doing so, the Commonwealth Court
                                                                                                                                                                            Domain continues on TC10
stated in the declarations of taking, was for    ties and then give them to the LCEDC for            explained that “inasmuch as the properties …
TC 4 • Top Cases                                                          t u e s d a y, m a r c h 9 , 2 0 1 0                                                                           March 2010

                                                                                          The Political Question Doctrine, Statutory
state Budget impasse:                                                                     Interpretation and Federal Pre-Emption
By alaiNe s. williams                                                                                   ernment operations in order to avoid unnec-       Clause of the U.S. Constitution, the FLSA
aNd amy l. roseNBerger                                                                                  essary violations of Article III, Section 24 of   pre-empts the state constitution, at least
Special to the Legal                                                                                    the state constitution.                           when it comes to payment of employee
                                                                                                           Specifically, the administration acknowl-      wages and, therefore, the administration was

        very so often, our state courts are                                                             edged that if it continued to employ so-          not legally compelled to shut down the gov-
        presented with an opportunity to                                                                called “non-critical” state workers, it would     ernment and furlough employees.
        clarify or reaffirm one of the basic                                                            be obligated to pay them their wages, under          In response, the administration argued
principles underlying our American form of                                                              the federal Fair Labor Standards Act (FLSA).      that the case should be dismissed because it
democracy. Rarely are numerous opportuni-                                                               However, in the administration’s view, if it      involved a non-justiciable political question.
ties presented in a single case, but in its        WilliAms            roseNBerger                      paid those wages before a budget was enact-       Alternatively, the administration sought a
recent ruling in Council 13 AFSCME v.              AlAiNe s. WilliAms is a founding partner of          ed, it would be in violation of the constitu-     declaration that the governor’s scheme of
Commonwealth, the Pennsylvania Supreme             Willig Williams & Davidson, where she has            tional prohibition against expenditure with-      furloughing 25,000 “non-critical” employees
Court addressed at length the proper role of       represented labor unions and workers in both the     out a legislative appropriation.                  but continuing to employ and pay 50,000
the judiciary in our tripartite form of gov-       public and private sector for 30 years. She can be      As for the approximately 50,000 employ-        “critical” employees during a budget impasse
ernment; statutory construction principles         contacted at                ees deemed “critical” to the public health,       was lawful.
under federal law; and the appropriate means       Amy l. roseNBerger is a partner in the               safety and welfare, the administration inex-         The trial court — which in this case was
of reconciling the conflicting demands of          firm, also practicing union-side labor and           plicably planned to continue to employ and        the Commonwealth Court — found the case
                                                   employment law. The firm represented the
state and federal law.                                                                                  pay those workers throughout the budget           justiciable. It avoided addressing whether the
                                                   unions that filed suit in Council 13 AFSCME
   These issues arose in the context of what       v. Commonwealth. She can be contacted at             impasse, despite the requirements of Article      FLSA pre-empts the Pennsylvania
has become a yearly political battle in many                                III, Section 24.                                  Constitution by determining that the FLSA
states, including here in Pennsylvania,                                                                    Of course, there were those who viewed         does not require timely payment of wages.
between the executive and legislative branch-      six years, the governor and the General              the administration’s furlough threats as          The court also ruled that Article III, Section
es of government over the budget for most          Assembly have been unable to agree upon an           merely a tactic to pressure the Legislature to    24 prevents the administration from paying
of the state’s operations. The Pennsylvania        appropriations bill before the July 1 start of       give some ground in the budget dispute.           any employee in the absence of an appropria-
Constitution directs the governor to submit        the fiscal year, holding up funding for vital        However, the administration maintained            tions act. The unions and the administration
an annual budget for the General Assembly’s        government services. In 2009, the budget             that the furloughs were legally required by       filed cross-appeals to the Pennsylvania
consideration (Article III, Section 12). In        stalemate lasted for months.                         the conflicting demands of the FLSA and           Supreme Court.
turn, the General Assembly is to adopt the            Among those caught in the crossfire dur-          the state constitution.                              While the case was pending on appeal, the
budget and enact an appropriations bill            ing these annual budget battles have been               When furloughs were threatened in 2008,        2009 budget impasse occurred. As a result of
(Article VII, Section13).                          state workers subject to furlough due to par-        three state worker unions representing most       the Commonwealth Court’s ruling, during
   Article III, Section 24 of the Pennsylvania     tial government shut downs. Since 2005, the          of the workers in question filed a declaratory    the first several weeks of that stalemate, state
Constitution requires, with very few excep-        Rendell administration either threatened or          judgment action, asking the Commonwealth          workers were expected to work without pay.
tions, that appropriations legislation must be     actually implemented furloughs of about              Court to declare whether or not the admin-        They finally were paid when a partial budget
enacted before the funds may be expended           25,000 employees, asserting that it was legal-       istration’s view of the law was correct. The      was enacted in mid-August, but for many, the
from the state treasury. Yet in each of the last   ly required to shut down non-critical gov-           unions argued that under the Supremacy                                   Budget continues on TC10
March 2010                                                              t u e s d a y, m a r c h 9 , 2 0 1 0                                                                 To p C a s e s • T C 5

                                                       Release of Principal No Longer Releases Agent in
say it isn’t so:                                       Certain Circumstances
By Cheryl a. garBer                                                                                  which was to be interpreted in accordance         the release ineffective, given the vicarious
aNd JohN haggerTy                                                                                    with the Uniform Contribution Among               liability and release of principal context.
Special to the Legal                                                                                 Tortfeasors Act, contained a paragraph set-          The Pennsylvania Supreme Court, rely-
                                                                                                     ting forth an express reservation of rights       ing upon the core principle that the hold-

     n what will surely be a key segment in                                                          against Prendergast.                              ing of a decision is to be read against its
     evolving principal/agent decisional law,                                                           Prendergast and the employers filed            facts, according to Commonwealth v.
     in late 2009 the Pennsylvania Supreme                                                           motions for summary judgment below                McMann, recognized that Mamalis was the
Court turned on its head 16 years of settled                                                         asserting that the language of the release        result of a simple fact pattern with a single
law that the release of a vicariously liable                                                         discharged all direct and derivative claims       principal, not a complex scenario, as here.
principal results in the discharge of an                                                             arising from Prendergast’s conduct. The           The court also recognized that Mamalis
agent. According to the court’s decision in       gArBer           hAggerTy                          court of common pleas granted the motions,        (which arose in the context of an agent
Maloney v. Valley Medical Facilities Inc., such   cheryl A. gArBer is a partner at Fox               and in particular granted Prendergast’s           release and held that a principal may not be
                                                  Rothschild who handles a broad range of com-
release of a principal no longer automati-                                                           motion based on the common law release            held vicariously liable after release of its
                                                  plex commercial and general civil litigation in
cally acts as a release of an agent where                                                            rule in Mamalis v. Atlas Van Lines Inc.           agent) was not controlling authority in
                                                  state and federal courts. She is resident in the
parties have expressly carved out or except-      Bucks County office and may be reached at          (release of an agent held to discharge a          these distinct circumstances surrounding
ed claims against the agent.                      215-918-3649 or         principal) and Pallante v. Harcourt Brace         the release of a principal. The court empha-
   In Maloney, the Pennsylvania Supreme           JohN hAggerTy is a partner at the firm             Jovanovich Inc. (release of a principal held to   sized that decisional law develops incre-
Court allowed an appeal to determine              who handles complex commercial, class action,      discharge an agent).                              mentally within the confines of factual cir-
whether the common law rule requiring             insurance, products liability and mass tort           The Superior Court, on appeal, agreed          cumstances brought before it, and recog-
release of a principal upon release of an         litigation for major corporations in state and     that the release included all claims against      nized that extending the common law rule
agent applied in the reverse scenario.            federal courts throughout the country. He is       the employers, but vacated the judgment as        in Mamalis would impede settlements and
Specifically, whether the plaintiff’s release     resident in the Bucks County office and may        to Prendergast based on application of tra-       undermine the strong public policy in favor
of a principal, whose potential liability was     be reached at 215-918-3564 or jhaggerty@           ditional contract principles, including effec-    of the voluntary compromise of claims.
vicarious, also discharged the plaintiff’s                                 tuating the intent of the parties as reflected    Specifically, a plaintiff should not be
claim against the agent, regardless of an                                                            in the ordinary meaning of the release lan-       deprived of a cause of action against a tort-
express reservation of rights of claims           porting to release the principal employers,        guage.                                            feasor when he did not intentionally relin-
against the agent.                                while preserving claims against one of the            Following the Superior Court’s lead, the       quish the claim.
   The case involved a medical malpractice        agent physicians, Prendergast. In particular,      plaintiff appellee here relied on the general        The Maloney court held that where a
action brought against internist Maurice          the plaintiff settled with Brennan and exe-        requirement to give effect to explicit terms      plaintiff in a settlement surrenders vicari-
Prendergast and radiologist Richard E.            cuted a joint tortfeasor release relinquish-       in the release, specifically the plaintiff’s      ous liability claims only, and expressly
Brennan for alleged negligence in failing to      ing all claims “in any way connected with          preservation of the right to pursue claims        preserves claims against an agent, the par-
timely diagnose and treat the plaintiff’s         all medical professional health care services      against appellant Prendergast. Prendergast        ties to the settlement should be afforded
wife, and against the institutional employ-       rendered by the above named Health Care            and the employers argued that the Superior        latitude to effectuate their express inten-
ers of those two physicians for vicarious         Providers.” Those health care providers            Court disregarded the holdings in Mamalis         tions. Thus, the claims against the agent
liability.                                        included the employers, but significantly          and Pallante, which they allege rendered the      physician, Prendergast, were preserved.
   The plaintiff settled the case in part pur-    excepted Prendergast. In fact, the release,        reservation of claims against Prendergast in                            Principal continues on TC11

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TC 6 • Top Cases                                                       t u e s d a y, m a r c h 9 , 2 0 1 0                                                                         March 2010

No Wrongful Discharge For Discrimination By smallest employers
By JaNe lewis VolK                                                                                  tiff complained internally that one of his       subordinate employee from seeking work-
aNd BraNdoN B. roThey                                                                               employer’s products was improperly tested        ers’ compensation benefits. The court
Special to the Legal                                                                                and presented a danger to users. As a result     emphasized that exceptions to at-will
                                                                                                    of these complaints, he was discharged.          employment should be few and carefully

        surprising      decision     of    the                                                      While the Pennsylvania Supreme Court             sculpted, but had “little difficulty” in extend-
        Pennsylvania Supreme Court handed                                                           failed to expressly create a cause of action     ing protection in that case.
        down in July 2009 removes thou-                                                             for wrongful discharge in that decision, it         The most frequent invocation of the pub-
sands of small employers from the reach of                                                          did suggest the concept in dicta.                lic policy exception in Pennsylvania has
wrongful discharge litigation for alleged                                                              The court in Geary reasoned that a            been in whistleblower cases in which an
employment discrimination and serves to                                                             wrongful discharge cause of action could         employee is discharged for reporting mis-
further refine the wrongful discharge cause       VolK              roThey                          arise where discharge would violate a “clear     conduct by the employer. However, to again
of action in Pennsylvania. That cause of          JANe leWis VolK is an employment law              mandate of public policy.” While this lan-       illustrate the limitations on the wrongful
action first emerged in case law beginning in     and employee benefits attorney at Meyer           guage appeared to be broad and far-reach-        discharge cause of action, an assertion that
the 1970s as an exception to the employ-          Unkovic & Scott and can be reached at jlv@        ing, it was tempered by the court’s consider-    the reporting of an employer’s malfeasance
                                                                               ation that the Legislature is the most appro-    is in the public interest is not enough to
ment “at-will” doctrine and continues to be
defined by the courts.
                                                  BrANDoN B. roThey is an associate at the          priate branch of government in which to          support the public policy exception cause of
                                                  firm and can be reached at
   As a general rule, Pennsylvania does not                                                         develop public policy exceptions to at-will      action. Rather, the employee will likely only
permit a cause of action for wrongful dis-           Weaver couched her lawsuit in terms of         employment. That caveat proved to limit          be protected when he or she has a statutory
charge of at-will employees. Employees,           public policy because the wrongful discharge      the cause action in case after case, most        duty to report.
without employment contracts to the con-          cause of action is limited to cases in which an   recently and dramatically in Weaver v.              In Field v. Philadelphia Electric Co., for
trary, generally may be discharged at any         employer’s action offends Pennsylvania’s          Harpster.                                        example, an employee was deemed to have a
time, for any reason that does not offend         “clear mandates of public policy.” This line         It first appeared that the language in        viable claim for wrongful discharge for
statutory law, such as the anti-discrimination    of cases requires not merely a general state-     Geary had the potential to be applied expan-     reporting a violation of the Nuclear
laws. The “wrongful discharge” cause of           ment of public policy creatively identified by    sively for a variety of unfair employment        Regulatory Commission’s regulations. The
action was developed as a limitation on this      plaintiffs counsel, but rather, that the policy   terminations. In fact, even today, there is a    court observed that it was important to the
“at-will” concept.                                be found in “the constitution, in legislation,    public misconception that a claim for            claim that the employee had a statutory
   The cause of action grows narrower and         an administrative regulation, or a judicial       wrongful discharge is viable in any situation    duty to report.
narrower because of decisions like Weaver v.      decision.” While the wrongful discharge           where a termination seems unjust or unfair.         Finding a statutory basis for the public
Harpster. In Weaver, an employee of a small       cause of action was originally heralded as a      In practice since Geary, however, this has       policy exception takes on enhanced signifi-
company alleged that she had been sub-            catch-all for wrongs in the workplace, the        not proved to be the case and the pendulum       cance with the Pennsylvania Supreme
jected to sexual harassment, which forced         courts have made clear that the public policy     has definitely swung to a more conservative      Court’s 2009 decision in Weaver v. Harpster.
her to resign. The small size of her employ-      violation theory will serve as a very narrow,     position.                                        The Superior Court, in finding a wrongful
er put her outside of the jurisdiction of the     limited and defined net that catches few of          Pennsylvania courts have applied the          discharge cause of action, had cited the anti-
Pennsylvania Human Relations Act (PHRA),          the workplace wrongs that filter through the      public policy exception, for example, where      discrimination policy expressed in the
which covers employers with four or more          cracks of other statutes.                         an employee was discharged for serving on        PHRA itself and in the Equal Rights
employees. She therefore filed a wrongful            The idea of a public policy exception to       jury duty in Reuther v. Fowler & Williams        Amendment         of     the     Pennsylvania
discharge action on the basis of Pennsylvania’s   Pennsylvania’s at-will employment doctrine        Inc.; for refusing to submit to a polygraph      Constitution, which provides: “Equality of
public policy, which opposes sex discrimina-      first appeared in 1974 in Geary v. United         examination in Kroen v. Bedway Security          rights under the law shall not be denied or
tion in the workplace.                            States Steel Corporation. In Geary, the plain-    Agency; and for filing a claim for unemploy-     abridged in the Commonwealth of
                                                                                                    ment benefits in Highhouse v. Avery              Pennsylvania because of the sex of the indi-
                                                                                                    Transportation. Pennsylvania courts have also    vidual.” The Superior Court also had found
                                                                                                    held, in 1980’s Hunter v. Port Authority, that   a basis for public policy in the Remedies
                                                                                                    employment may not be denied to an indi-         Clause of the Pennsylvania Constitution,
                                                                                                    vidual solely because of a prior conviction      which states, “All courts shall be open; and
                                                                                                    from which that individual has been par-         every man for an injury done him in his
                                                                                                    doned.                                           lands goods person or reputation shall have
                                                                                                       In 2005, in Rothrock v. Rothrock Motor        remedy by due recourse of law; and justice
                                                                                                    Sales, the Pennsylvania Supreme Court rec-       administered without sale, denial or delay.”
                                                                                                    ognized a wrongful discharge cause of action        The Superior Court reasoned that the
                                                                                                    in a case in which a supervisory employee        Legislature would not have defined certain
                                                                                                    was discharged for refusing to dissuade a                           Discharge continues on TC 11

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March 2010                                                                  t u e s d a y, m a r c h 9 , 2 0 1 0                                                                To p C a s e s • T C 7

                                              Top 50 Verdicts and Settlements of 2009
               Case                                                      Type of
 Rank                                   Amount                                                 Court                                          Attorneys                                      Date
               Name                                                      Action

 1        Miller v. Santilli    $100 million (settlement)        Fraud                   C.P. Philadelphia      Timothy C. Russell of Spector Gadon & Rosen; Kevin H. Marino of
                                                                                                                Marino Tortorella & Boyle; Steven B. Feirson of Dechert; Douglas     10/9/09
                                                                                                                Curtis of Wilmer Hale; Steven M. Coren of Kaufman Coren & Ress.
 2        Barton v. Wyeth       $78.746 million (verdict)        Products Liability      C.P. Philadelphia      Lauren E. Handler of Porzio Bromberg & Newman; Zoe Littlepage
          Pharmaceuticals                                                                                       and Rainey C. Booth of Littlepage Booth; Samuel Abloeser of Williams 10/26/09
          Inc.                                                                                                  Cuker Berezofsky; George E. McDavid of Reed Smith; Matthew V.
                                                                                                                Johnson of Williams & Connolly.
 3        Mendez v. City of     $61 million (verdict)            Personal Injury         C.P. Philadelphia      Fred M. Feder of Feder & Associates; J. Brian Durkin of the City of
          Philadelphia                                                                                          Philadelphia Law Department.                                         2/26/09
 4        Hall v. Babcock &     $52.5 million (settlement)       Regulation Violation    U.S. District Court,   Frederick M. Baron and Lisa A. Blue of Baron & Blue; William R.              4/17/09
          Wilcox                                                                         W.D. Pa.               Caroselli of Caroselli Beachler McTiernan & Conboy; Kaeske Law
                                                                                                                Firm; Allen Stewart; Alicia Butler of the Law Offices of Alicia D. Butler;
                                                                                                                Kay Gunderson Reeves; John Redding, Ned N. Isokawa, Peter C.
                                                                                                                Meier and John P. Phillips of Paul Hastings Janofsky & Walker; Neal
                                                                                                                R. Brendel, Chris M. Temple and Roberta D. Anderson of K&L Gates;
                                                                                                                Robert C. Heim, Richard Berkman and Juliet Sarkessian of Dechert;
                                                                                                                Jack R. Canavan and Edwin L. Klett of Buchanan Ingersoll & Rooney.
 5        In re Riverwalk       $36.25 million (settlement)      Insurance, Fire         Mediation              Robert J. Mongeluzzi and Patrick Howard of Saltz Mongeluzzi Barrett          12/17/09
          Fire Cases                                                                                            & Bendesky; Christopher Konzelmann of White & Williams; Marc B.
                                                                                                                Zingarini of Weber Gallagher Simpson Stapleton Fires & Newby; Kelly
                                                                                                                Grimes Pietrangelo & Vakil; Philip D. Priore of McCormick & Priore;
                                                                                                                Elizabeth Horneff of Margolis Edelstein; F. Warren Jacoby, Julie Negovan,
                                                                                                                Mark E. Opalisky and Elliott R. Feldman of Cozen O’Connor.
 6        Kendall v. Wyeth      $34.3 million (verdict)          Products Liability      C.P. Philadelphia      Zoe Littlepage of Littlepage Booth; Gita F. Rothschild of McCarter &         11/23/09
          Pharmaceuticals                                                                                       English; Ronald Rosenkranz of Finkelstein & Partners; Tobias L. Millrood
          Inc.                                                                                                  of Pogust Braslow & Millrood; Michael T. Scott and Barbara R. Binis of
                                                                                                                Reed Smith; Charles P. Goodell Jr. of Goodell DeVries Leech & Dann.
 7(tie)   Forbes v. Mattis      $20 million (judicial finding)   Assault/Battery         C.P. Philadelphia      Robert S. Waldman of the Law Offices of Robert S. Waldman & Associates.      3/30/09
 7(tie)   Miller v. Blank       $20 million (settlement)         Professional            C.P. Philadelphia      Steven M. Coren of Kaufman Coren & Ress; John G. Harkins Jr. of
          Rome                                                   Malpractice,                                   Harkins Cunningham.                                                          7/1/09
                                                                 Breach of Contract
 9        Estate of Paulin v.   $17 million (verdict)            Toxic Torts, Asbestos   C.P. Philadelphia      Denyse F. Clancy and Chris Norris of Baron & Budd; Howell K.
          Crane Co.                                                                                             Rosenberg of Brookman Rosenberg Brown & Sandler; Christopher                 12/11/09
                                                                                                                O. Massenburg of Swetman Baxter Massenburg; Joseph M. Toddy of
                                                                                                                Zarwin Baum DeVito Kaplan Schaer & Toddy; Jeffrey S. King of K&L
 10       Skirpan v.            $16.25 million (settlement)      Strict Liability,       C.P. Philadelphia      Slade H. McLaughlin and Paul A. Lauricella of The Beasley Firm; Mi-          6/25/09
          Caterpillar Inc.                                       Negligence                                     chael A. Boomsma; Thomas A. Kuzmick and Valerie Kellner of Rawle
                                                                                                                & Henderson; James H. Keale and Thomas Robertson of Sedgwick
                                                                                                                Detert Moran & Arnold; William J. Conroy and Tiffany M. Alexander of
                                                                                                                Campbell Campbell Edwards & Conroy.
 11       State Farm v.         $15.4 million (verdict)          Fraud                   U.S. District Court,   Richard M. Castagna, Cy Goldberg and Matthew A. Moroney of Gold-             3/26/09
          Lincow                                                                         E.D. Pa.               berg Miller & Rubin; Joel W. Todd of Dolchin Slotkin Todd.
 12       Mattison v. Alfa      $14 million (verdict)            Products Liability      C.P. Philadelphia      Benjamin P. Shein and Bethann Schaffzin of Shein Law Center;                 4/8/09
          Laval Inc.                                                                                            Demetrios Zacharapolous and Troyce Wolfe of Waters & Kraus; Wil-
                                                                                                                liam Adams of Dickie McCamey & Chilcote; E. Michael Keating III of
                                                                                                                Hollstein Keating Cattell Johnson & Goldstein; John F. Kent of Kent &
                                                                                                                McBride; et al.

 13       Thompson v.           $13.5 million (verdict)          Products Liability      C.P. Philadelphia      Robert A. Burke, Matthew T. D’Annunzio, Ryan P. Stewart, Lev Kalman          10/14/09
          Lasko Products                                                                                        and Sheila E. Branyan of Blank Rome; John P. Freedenberg, Robert
          Inc.                                                                                                  M. Hanlon and Suzanne M. Bachovin of Goldberg Segalla.
 14       Davis v. Davis        $12.59 million (verdict)         Breach of Fiduciary     C.P. Chester           George Zumbano of Gawthorp Greenwood; Robert C.F. Willson of                 9/10/09
                                                                 Duty                                           Lentz Cantor & Massey.
 15       Lazabeck v.           $10.25 million (decision)        Wrongful Death          C.P. Allegheny         David C. Martin Jr. of Martin & Lerda; David K. Trautman of Trautman
          Pruchnitzky                                                                                           & Associates; Gerard J. Cipriani of Cipriani & Werner; James Moore           11/5/09
                                                                                                                III, pro se.
 16 (tie) Bates v. Dietz &      $10 million (settlement)         Construction            C.P. Philadelphia      Robert J. Mongeluzzi and Andrew R. Duffy of Saltz Mongeluzzi Barrett
          Watson                                                 Accident,Negligence                            & Bendesky; Alan C. Milstein of Sherman Silverstein Kohl Rose &              3/1/09

  Editor’s Note: This list includes the top 50 verdicts and settlements as reported in The Legal Intelligencer and Pennsylvania Law Weekly, with assistance
  from, for 2009. We apologize in advance for any omissions. In some instances, certain pieces of information were not available at press
  time. In others, certain information had to be left out in order to fit all 50 cases.
TC 8 • Top Cases                                                        t u e s d a y, m a r c h 9 , 2 0 1 0                                                                            March 2010

                                               Top 50 Verdicts and Settlements of 2009
               Case                                                   Type of
 Rank                                     Amount                                               Court                                         Attorneys                                       Date
               Name                                                   Action

 16(tie) Yates v. Omnilift Inc. $10 million (settlement)      Negligence                 C.P. Philadelphia      Robert J. Mongeluzzi and Andrew R. Duffy of Saltz Mongeluzzi Barrett &
                                                                                                                Bendesky; William J. Conroy, Thomas M. Hinchey and J. David Byerly of
                                                                                                                Campbell Campbell Edwards & Conroy; Stuart Singer and Ronald Daugherty
                                                                                                                of Salmon Ricchezza Singer Turchi; John J. Delany III and Andrew P. Camp-
                                                                                                                bell of Delany & O’Brien; Joseph P. Connor III of Connor Weber & Oberlies.
 18        Renda v. Martin       $9.5 million (verdict)       Negligence                 C.P. Philadelphia      Michael O. Pansini of Pansini & Mezrow; Nancy E. Campbell of Kennedy
           Stone Quarries                                                                                       Daniel & Lipski; Regina M. Vogelsong of Zarwin Baum DeVito Kaplan             2/25/09
           Inc.                                                                                                 Schaer Toddy; John A. Livingood Jr. of Margolis Edelstein.
 19        Blumer v.             $8.75 million (verdict)      Products Liability         C.P. Allegheny         Shanin Specter of Kline & Specter; Nancy R. Winschel of Dickie                3/19/09
           Ford Motor Co.                                                                                       McCamey & Chilcote; William J. Conroy of Campbell Campbell Edwards
                                                                                                                & Conroy.
 20        ConsulNet             $7.8 million (settlement)    Copyright Infringement U.S. District Court,       David E. Landau and Lawrence J. Kotler of Duane Morris; Matthew R.
           Computing Inc. v.                                                         E.D. Pa.                   Varzally of Akin Gump Strauss Hauer & Feld; Kevin W. Goldstein and            7/1/09
           Dynamic Invest-                                                                                      Brian P. Seaman of Stradley Ronon Stevens & Young; Steven D. Usdin
           ment Group Inc.                                                                                      of Cohen Seglias Pallas Greenhall & Furman.
 21        Plevretes v.          $7.5 million (settlement)    Negligence                 C.P. Philadelphia      Jeremy D. Mishkin, Carmon M. Harvey and Steven E. Pachman of                  11/25/09
           LaSalle University                                                                                   Montgomery McCracken Walker & Rhoads; Shanin Specter, Charles L.
                                                                                                                Becker, Michael A. Trunk and Garabet M. Zakeosian of Kline & Specter;
                                                                                                                Donald N. Camhi of Post & Schell.
 22        Powell v. Keystone $6.75 million (verdict)         Motor Vehicle              C.P. Philadelphia      Jason A. Daria and John M. Dodig of Feldman Shepherd Wohlgelernter
           Freight Corp.                                                                                        Tanner Weinstock & Dodig; Joseph M. Toddy and Joseph Longo of
                                                                                                                Zarwin Baum DeVito Kaplan Schaer & Toddy.
 23        Bannon v. Yum         $6.6 million (verdict)       Premises Liability, Slip   C.P. Philadelphia      Gerald B. Baldino of Sacchetta & Baldino; Liza A. Stagliano of Kelley
           Brands Inc.                                        and Fall                                          Jasons McGowan Spinelli & Hanna.                                              8/5/09
 24(tie)   Collins v. Grover     $6 million (settlement)      Motor Vehicle              C.P. Philadelphia      Heather A. Herrington and John J. Snyder of Rawle & Henderson; Daniel
                                                                                                                S. Weinstock and Carolyn M. Chopko of Feldman Shepherd Wohlgelern-
                                                                                                                ter Tanner Weinstock & Dodig.
 24(tie) Katz v. Westfall        $6 million (settlement)      Breach of Contract         U.S. District Court,   J. Gregg Miller of Pepper Hamilton.                                           8/25/09
         Township                                                                        M.D. Pa.
 26      Boone v.                $5.9 million (settlement)    Civil Rights               U.S. District Court,   Daniel C. Levin of Levin Fishbein Sedran & Berman; Shelley R. Smith
         Philadelphia                                                                    E.D. Pa.               and Craig Straw of the City of Philadelphia Law Department.
 27      Peterson v.             $5.49 million (verdict)      Personal Injury            C.P. Philadelphia      Alan Schwartz of Anapol Schwartz Weiss Cohan Feldman & Smalley;               1/13/09
         Site-Blauvelt                                                                                          William J. Taylor Jr. of Wilson Elser Moskowitz Edelman & Dicker;
                                                                                                                Edward J. McGinn Jr. of Marshall Dennehey Warner Coleman & Goggin;
                                                                                                                John J. Calabro of the Pennsylvania Attorney General’s Office.
 28        Marcus v.             $5.4 million (verdict)       Age Discrimination         U.S. District Court,   Katie R. Eyer and Scott B. Goldshaw of Salmanson Goldshaw; Elizabeth          11/10/09
           PQ Corp.                                                                      E.D. Pa.               A. Malloy and Peter J. Ennis of Buchanan Ingersoll & Rooney.
 29        Thomas v. Coady       $5.15 million (verdict)      Medical Malpractice        U.S. District Court,   Bradley T. Beckman and Alisa P. Marion of Beckman & Marion; Eileen            12/29/09
                                                                                         E.D. Pa.               Lampe of Eckert Seamans Cherin & Mellott; James P. Kilcoyne and
                                                                                                                Jacqueline R. Drygas of Kilcoyne & Nesbitt.
 30        Estate of McCoy       $5.12 million (settlement)   Negligent Supervision      U.S. District Court,   Arthur W. Hankin and Mark R. Zolfaghari of Blank Rome; Michael P.             8/25/09
           v. George Junior                                                              W.D. Pa.               O’Connor of O’Connor Kimball; Robert F. Englert and Jonathan M.
           Republic in                                                                                          Cohen of Kline & Specter.
 31        Ford v. Lloyd         $4.3 million (verdict)       Shareholders Suit          C.P. Montgomery        Alan L. Frank of Alan L. Frank Law Associates; Stephen M. Howard.             7/31/09
           Industries Inc.
 32(tie)   Grossi v. Travelers   $4 million (settlement)      Underinsured Motorist      Arbitration            Daniel T. Moskal of Law Office of Joseph S. Weimer; Dale Fouse, Keith         8/6/09
           Insurance Co.                                                                                        R. McMillen and Laura Tocci of McMillen Urick Tocci Fouse & Jones.
 32(tie)   Landi v. South        $4 million (verdict)         Personal Injury            C.P. Philadelphia      Donna Lee Jones of Saltz Mongeluzzi Barrett & Bendesky; Michael J.            7/28/09
           Philadelphia Area                                                                                    Revness of Kurtz & Revness.
 32(tie)   Mente Chevrolet       $4 million (verdict)         Breach of Contract         U.S. District Court,   Mary Grace Maley of Lavin O’Neill Ricci Cedrone & DiSipio; Steven             11/19/09
           Oldsmobile Inc. v.                                                            E.D. Pa.               Ginsburg and Charles M. Tatelbaum of Adorno & Yoss; Kenneth A.
           GMAC                                                                                                 Jacobsen of Law Offices of Kenneth A. Jacobsen.

 Editor’s Note: This list includes the top 50 verdicts and settlements as reported in The Legal Intelligencer and Pennsylvania Law Weekly, with assistance
 from, for 2009. We apologize in advance for any omissions. In some instances, certain pieces of information were not available at press
 time. In others, certain information had to be left out in order to fit all 50 cases.
March 2010                                                            t u e s d a y, m a r c h 9 , 2 0 1 0                                                                To p C a s e s • T C 9

                                              Top 50 Verdicts and Settlements of 2009
               Case                                                 Type of
 Rank                                   Amount                                             Court                                         Attorneys                                       Date
               Name                                                 Action

 32(tie) Volutza v.             $4 million (verdict)         Medical Malpractice     C.P. Berks             Shanin Specter, Andrew S. Youman and Garabet M. Zakeosian of Kline            2/9/09
         McBryan                                                                                            & Specter; Edwin L. Stock of Roland & Schlegel; James P. Kilcoyne Jr.
                                                                                                            of Kilcoyne & Nesbitt; Kevin H. Wright of Kevin H. Wright & Associates;
                                                                                                            Michael M. Badowski of Margolis Edelstein.
 36        Breon v. Crawford    $3.85 million (settlement)   Construction Accident   Mediation              Mark LeWinter of Anapol Schwartz Weiss Cohan Feldman & Smalley;               10/14/09
           Construction Inc.                                                                                Mark L. Reilly of the Law Offices of John V. DeMarco; David E. White of
           and Phillips v.                                                                                  Babst Calland Clements & Zomnir.
           Construction Inc.
 37(tie)   Markey v. Toll       $3.5 million (settlement)    Construction Accident   C.P. Philadelphia      I. Michael Luber of Luber Law; Andrew R. Duffy of Saltz Mongeluzzi Bar-       6/17/09
           Naval Associates                                                                                 rett & Bendesky; Glenn M. Campbell of Gibley & McWilliams; Scott W.
           and Jagger v. Toll                                                                               Reid of Cozen O’Connor; John D. Kearney of Romando Tucker Zirulnik &
           Naval Associates                                                                                 Sherlock; Frederick T. Lachat Jr. of Margolis Edelstein.
 37(tie)   St. Johns v. LPH     $3.5 million (verdict)       Construction            C.P. Chester           Paul Bartolacci of Cozen O’Connor; David Schwalm of Thomas Thomas             6/16/09
           Plumbing                                                                                         & Hafer; Nicholas Gard of Smoker Gard Associates.
 39        Schramm v. Lippert   $3.4 million (settlement)    Auto Accident           C.P. Philadelphia      Kenneth F. Fulginiti and Thomas J. Duffy of Duffy & Partners; John J.         10/19/09
           Components Inc.                                                                                  Snyder of Rawle & Henderson; David P. Czap of Marshall Dennehey
                                                                                                            Warner Coleman & Goggin.
 40        Conn v. United       $3.37 million (verdict)      Negligence              U.S. District Court,   Maria Spina Altobelli of Mears Smith Houser & Boyle; William R.               3/31/09
           States                                                                    W.D. Pa.               Caroselli of Caroselli Beachler McTiernan & Conboy; Michael C. Colville,
                                                                                                            Assistant U.S. Attorney.
 41        Curtis v.            $3.2 million (settlement)    Products Liability      C.P. Wayne             Thomas R. Kline and David K. Inscho of Kline & Specter; Gregory S.            2/9/09
           Schweighofer                                                                                     Hirtzel of Post & Schell; Michael T. Blazick of the Law Offices of Michael
                                                                                                            T. Blazick.
 42        Gerszten v.       $3.1. million (verdict)         Employment              U.S. District Court,   Colleen Ramage Johnston of Rothman Gordon; Miranda Nickles and                11/25/09
           University of                                                             W.D. Pa.               Allison L. Feldstein of Eckert Seamans Cherin & Mellott.
           Pittsburgh Cancer
           Institute Cancer
 43(tie)   Ballentine v.     $3 million (verdict)            Slip and Fall           C.P. Philadelphia      John T. Dooley of the Law Offices of John T. Dooley; Anthony Hinkle of        12/18/09
           Atlas Commercial                                                                                 Cipriani & Werner; Ramon D. Townsend of the Law Offices of Jeffrey H.
           Floors                                                                                           Eiseman; Gary S. Williams of Baginski Mezzanotte Hasson & Rubinate.
 43(tie)   Conley v. Oshkosh $3 million (settlement)         Motor Vehicle           C.P. Northampton       James J. Waldenberger and Jonathan M. Cohen of Kline & Specter;               10/1/09
           Truck Corp.                                                                                      Jeffrey H. Quinn of Dickie McCamey & Chilcote; Joseph Trabucco and
                                                                                                            Stephen D. Menard of Burns White & Hickton; Gerhard Dietrich of Daller
                                                                                                            Greenberg & Dietrich; John A. Livingood of Margolis & Edelstein.
 43(tie) Kennedy v. Brock       $3 million (verdict)         Negligence              C.P. Chester           Michael O. Pansini and Steven M. Mezrow of Pansini & Mezrow; Donald           12/21/09
                                                                                                            J. McCormick of Dell Moser Lane & Loughney.
 43(tie) Kessler v. Berman $3 million (verdict)              Wrongful Death          C.P. Philadelphia      Brian Chacker of Gay Chacker & Mittin; Gary Samms and James E.                6/23/09
                                                                                                            Kurack Jr. of Obermayer Rebmann Maxwell & Hippel; Cynthia Brennan
                                                                                                            of Kane Pugh Knoell Troy & Kramer.
 47        Farhy v. Janney      $2.99 million (settlement)   Class Action            U.S. District Court,   Robert J. Gray, Gerald D. Wells and Joseph H. Meltzer of Barroway             7/16/09
           Montgomery                                                                E.D. Pa.               Topaz Kessler Meltzer & Check; Christopher A. Parlo, Russell R. Bruch,
           Scott                                                                                            Harvetta E. Nero and Michael J. Puma of Morgan Lewis & Bockius;
                                                                                                            John Halebian of Lovell Stewart Halebian; Gary F. Lynch of Carson
                                                                                                            Lynch Ltd.
 48        Weaver v.            $2.75 million (verdict)      Medical Malpractice     C.P. Philadelphia      Robert C. Pugh of Kane Pugh Knoell Troy & Kramer; Edward C. Mintzer           12/14/09
           Oxenberg                                                                                         Jr. of Rawle & Henderson; Frank A. Rothermel of Bernhardt & Rothermel.
 49        Nalls v. DeCaro      $2.65 million (verdict)      Motor Vehicle           C.P. Philadelphia      Thomas J. Duffy and Kenneth F. Fulginiti of Duffy & Partners; David M.        6/11/09
                                                                                                            McCormick and Anna M. Darpino of McCormick & Priore.
 50        Williams v.          $2.6 million (verdict)       Negligent Supervision   C.P. Philadelphia      Walter S. Jenkins of Wilson Elser Moskowitz Edelman & Dicker; Thomas          9/21/09
           Chamounix                                                                                        J. Duffy and Kenneth F. Fulginiti of Duffy & Partners.
           Equestrian Center

  Editor’s Note: This list includes the top 50 verdicts and settlements as reported in The Legal Intelligencer and Pennsylvania Law Weekly, with assistance
  from, for 2009. We apologize in advance for any omissions. In some instances, certain pieces of information were not available at press
  time. In others, certain information had to be left out in order to fit all 50 cases.
TC 10 • Top C ases                                                      t u e s d a y, m a r c h 9 , 2 0 1 0                                                                         March 2010

Privilege                                          time and resources filing a mandamus peti-
                                                   tion for review of a discovery ruling? To
                                                                                                     the attorney-client privilege — whose
                                                                                                     forced disclosure the Mohawk court held
                                                                                                                                                      tory appeals of privilege decisions.
                                                                                                                                                      Pennsylvania courts still allow such appeals,
continued from TC2                                 expect relief by requesting certification         could not be immediately appealed — can          as shown by Jones v. Faust and Gocial v.
                                                   under Section 1292(b)?                            take many forms, and can include an attor-       Independence Blue Cross. But if Mohawk is
litigants,” and it may do so “in ways that are        Perhaps pragmatism and practicality pro-       ney’s evaluation of how much a case is           really a decision grounded more in pragma-
only imperfectly reparable by appellate            vide a different form of justification for the    worth, litigation strategy or other dirty        tism than doctrine, and if denying the ave-
reversal of a final judgment.”                     court’s ruling in Mohawk. The court in fact       laundry that a litigant might not want aired.    nue of interlocutory appeal for this class of
   U.S. Supreme Court Justice Sonia                nods in this direction, noting that allowing      When one side is faced with the prospect of      orders will in fact increase the likelihood of
Sotomayor, however, writing for a unani-           more interlocutory appeals would impose           having to disclose such information (espe-       settlement and reduce costs, delay and bur-
mous court, noted that such concerns “ha[ve]       “institutional costs” on the courts, “would       cially where it is of the potential smoking-     den, how long will the state of affairs in
never sufficed” to allow interlocutory appeals.    unduly delay the resolution of district court     gun sort at issue in Mohawk), the pressure       Pennsylvania last?
The court concluded that adequate alterna-         litigation,” and “would needlessly burden         to get a case settled can increase. Otherwise,      Pennsylvania courts, too, may decide that
tives exist to interlocutory review, such as       the Courts of Appeals.” The Mohawk ruling         the disclosing party will be forced to put       allowing appeals of rulings relating to the
requesting that a trial court certify a question   speaks to such concerns both in the literal       some or all of its cards on the table and        disclosure of privileged information “would
for review under 28 U.S.C. § 1292(b), filing       sense — fewer appeals means less cost,            proceed with the litigation, while the other     unduly delay the resolution of … litigation”
a petition for a writ of mandamus, or choos-       delay and burden — but in another sense as        party keeps its cards to its vest.               and “needlessly burden” the appellate courts,
ing to defy a court order (which may result in     well, by encouraging settlement.                     Simply, the rule in Mohawk is likely to       as the Mohawk court did. If so, such pragma-
an appealable contempt finding).                      Once one party has been ordered to dis-        cause some cases in which privileged infor-      tism may eventually overcome the rationales
   Is any of these alternatives really viable,     close to the other its protected attorney-        mation is ordered to be disclosed to come        in cases such as Jones and Gocial, and the
however? Would any lawyer counsel                  client communications, the matter at issue        to a close more quickly.                         right to an immediate appeal of privilege
Mohawk to defy the district court in hopes         becomes likely to get resolved more quickly.         Prior to Mohawk, three courts of appeals,     rulings in Pennsylvania state courts may
of being held in contempt? To spend its            Information and documents protected by            including the 3rd Circuit, allowed interlocu-    become a thing of the past. •

Domain                                             development, and that is why the Supreme
                                                   Court held as it did in Kelo.
                                                                                                     private property and give it to another pri-
                                                                                                     vate entity or the church, but rather to
                                                                                                                                                      as a park, a legitimate recreational purpose.
                                                                                                                                                      On appeal to the Pennsylvania Supreme
continued from TC3                                    However, in the wake of Kelo, legislatures     eliminate blight.                                Court, the court reversed because it was
                                                   and courts across the country, including             The difference between RALC’s case and        clear that the “real or fundamental” pur-
this case, were clearly not blighted in the        Pennsylvania, hastened to expressly reject        the Philadelphia case is that in Philadelphia,   pose behind the taking was to prevent
sense of dilapidated. The purpose of the           condemnation for economic development.            the property was found to be blighted and        development of the property and conserve
condemnation in Kelo was to build a phar-          Even in Michigan, where it all began, the         therefore condemnation pursuant to the           open space.
maceutical research facility and the statute       highest court reversed itself and held in         URL was appropriate.                                As explained by the court, a taking has a
authorizing the condemnation expressly             County of Wayne v. Hathcock that the                 In another recent case, Middletown            valid public purpose only where the public
permitted the taking of non-blighted prop-         Michigan constitution prohibits condem-           Township v. Lands of Stone, the Pennsylvania     is to be the primary and paramount benefi-
erty for the purpose of economic develop-          nations for economic development, and the         Supreme Court had the opportunity to             ciary of the taking. In the case of the Stone
ment projects. The question before the             Michigan statute that provided otherwise is       highlight the difference between public          farm, the township had no valid plan to use
Supreme Court was whether the “eco-                unconstitutional under state law.                 policies that the Legislature decides are        the property for recreational purposes that
nomic development” of the site constituted            In RALC’s case, the en banc                    important enough to warrant the use of           would benefit the public. The court also
a “public purpose” sufficient to justify the       Commonwealth Court concluded that a               eminent domain and those policies that           held that while the Open Space Lands Act
condemnation under the Fifth Amendment             proper interpretation of the URL does not         may be good for society, but which the           declares open land preservation to be a
to the U.S. Constitution.                          authorize the condemnation of property            Legislature has decided do not warrant the       public good, it is not a public use for which
   The Supreme Court held that it did, stat-       (lacking the ordinarily understood indica-        taking of someone’s fundamental private          eminent domain may be used.
ing, “Promoting economic development is            tions of blight) for purely economic devel-       property rights.                                    In RALC’s case, the Legislature has
a traditional and long accepted function of        opment purposes. The court reiterated its            There, the township had the statutory         determined that the eradication of blight is
government,” and “there is [no] principled         earlier precedents that made clear that the       authority to condemn property for any            such an important public concern that it
way of distinguishing economic develop-            public purpose that justifies the taking is       legitimate “recreational” purpose. The           warrants the use of eminent domain under
ment from the other public purposes that           the eradication of blight.                        township, in an effort to prevent the owner      certain circumstances. In contrast, the
we have recognized.” The Supreme Court,               The RALC case is one of a few recent           of a 175-acre farm from selling the prop-        Legislature has determined that taking pri-
however, went on to recognize that while           cases in which the Pennsylvania appellate         erty to a developer, filed a declaration of      vate property for economic development
the applicable Connecticut statute at issue        courts have clarified and confirmed that a        taking seeking to condemn the farm for           purposes does not.
in Kelo permitted a taking for purely eco-         government’s power of eminent domain is           “recreation and open space purposes.” The           Condemnation for economic develop-
nomic development purposes, even absent            limited by each statutory authority that          property owner challenged the taking             ment offends the American conscience
a finding of blight, nothing precluded a           permits condemnations for certain stated          because no Pennsylvania statute permits a        because it goes to the heart of the American
state from imposing stricter public use            public purposes.                                  township to take private property in order       dream, the belief that with hard work we
requirements that would prohibit such con-            For example, in Condemnation Proceeding        to preserve open space.                          can all acquire property that will further
demnations.                                        by the Redevelopment Authority of Philadelphia,      The court discussed the Pennsylvania          our pursuit of happiness. But there is a sec-
   Despite the media frenzy surrounding            another URL case, the Pennsylvania                Open Space Lands Act, which contains the         ond, more basic complaint: condemnations
Kelo, condemnation for economic develop-           Supreme Court confirmed that the elimi-           following declaration of legislative intent at   for economic development simply do not
ment is not new. The landmark 1981                 nation of blight, not the subsequent use of       32 P.S. §5001: “The Legislature finds that       work. Suzette Kelo’s experience is a case in
Michigan case of Poletown Neighborhood             blighted property, is the essential justifica-    it is important to preserve open space and       point. After a legal battle that lasted almost
Council v. Detroit was the first major case to     tion for condemnations under the URL.             to meet needs for recreation, amenity, and       five years, the land she and her neighbors
attract the attention of jurists and legal         There, the Redevelopment Authority                conservation of natural resources, includ-       called home lies barren. Pfizer, the compa-
commentators. Some other jurisdictions             sought to condemn property that had been          ing farm land, forests, and a pure and ade-      ny that was supposed to serve as a catalyst
followed suit and adopted similar legisla-         certified as blighted 36 years ago and con-       quate water supply.” The trial court held        to New London’s rejuvenation, recently
tion to allow the use of eminent domain for        vey it to a religious entity as part of a rede-   that the taking was for recreational pur-        announced the closing of its facility there.
purely economic development purposes.              velopment plan. The Pennsylvania Supreme          poses and was therefore permitted. The           Pennsylvania’s greater protection of private
Connecticut was one of those that statuto-         Court upheld the taking because the pur-          Commonwealth Court affirmed, holding             property rights has spared its citizens a
rily permitted condemnations for economic          pose of the condemnation was not to take          that the township intended to use the farm       similar fate.     •

Budget                                             gling to find ways to feed their families and
                                                   put gas in the car to get to work, went to
                                                                                                     require timely payment of at least minimum
                                                                                                     wage for hours worked, and determined that
                                                                                                                                                      may work and be paid during a budget
                                                                                                                                                      impasse. The Supreme Court disagreed,
continued from TC4                                 food banks and took out additional loans to       this timely payment requirement pre-empts        holding that the unions were merely seeking
                                                   try to make ends meet.                            Article III, Section 24 of the Pennsylvania      a declaration as to whether or not the admin-
damage had been done. The average union-              Although the Supreme Court’s Dec. 28,          Constitution so that it does not prohibit pay-   istration was correct in believing that the
ized state employee earns approximately            2009, ruling did not actually mention the         ment of employee wages during an impasse.        FLSA and the state constitution mandated
$35,000 yearly.                                    “payless paydays” to which state workers had         On the question of justiciability, the        the furloughs.
   Without their paychecks, they were unable       been subjected in 2009, it implicitly out-        Rendell administration argued that for the          The court noted that the political question
to make timely payments on their mortgages         lawed such tactics in the future. The court, in   court to rule on the declaratory judgment        doctrine shields from judicial intrusion the
and other credit obligations, incurring late       a six-to-one decision authored by Chief           action would be an improper judicial intru-      executive’s policy decisions. It does not, how-
fees, increased interest rates and other penal-    Justice Ronald D. Castille, found the case        sion into the constitutional power of the        ever, divest the judicial branch of its authority
ties. Thousands of state employees strug-          justiciable, held that the FLSA does indeed       executive branch to decide which employees                              Budget continues on TC11
March 2010                                                               t u e s d a y, m a r c h 9 , 2 0 1 0                                                                To p C a s e s • T C 1 1

                                                  9th Circuit noted the FLSA requires that the         comply with both the FLSA requirement of           court found present in this case, finding the
                                                  employer “shall pay” at least minimum wage           timely payment of wages and the constitu-          conflict between the two laws obvious. As the
continued from TC11                               for hours worked, and that failure to do so          tional prohibition against spending unappro-       administration acknowledged at the outset
                                                  results in liability for unpaid wages and liqui-     priated funds, the state law prohibition must      of the litigation, it is simply not possible to
to interpret the law, when the actions of the     dated damages. The imposition of liability           yield to the supremacy of federal law.             shut down every government operation dur-
executive purport to be based upon the            would be meaningless unless there was a                 The court noted that there are three pos-       ing an impasse, and therefore some workers
requirements of the law. It is the role of the    point in time at which wages were due to be          sible means by which a state law may be pre-       must remain employed.
judiciary to interpret the constitution and       paid, and after which they were unpaid, in           empted by federal law. The first is “express          Because the FLSA pre-empts the state
laws, and to determine whether those sourc-       violation of the statute. Similarly, there must      pre-emption,” where the language of the            constitutional provision, the Supreme Court
es require or prohibit given conduct. As          be a point at which the statute of limitations       federal law itself expresses the intent to pre-    further explained, the state law has no legal
Castille explained, “The political question       for an unpaid wage claim begins to run —             empt state law. An example is Section 514 of       effect. Therefore, contrary to the adminis-
doctrine is a shield, not a sword. … [I]t does    again, the point at which the employer has           the Employee Retirement Income Security            tration’s view, the constitutional provision
not exist to remove a question of law from        failed in its statutory obligation to pay at least   Act, which explicitly provides that the statute    has no application to payment of employee
the Judiciary’s consideration merely because      minimum wage for all hours worked.                   “shall supersede any and all state laws insofar    wages as required by the FLSA, and so does
the Executive branch has forwarded its own           The 9th Circuit concluded that these pro-         as they may now or hereafter relate to any         not require furlough of any workers. Payment
opinion of the legal issue in a political con-    visions have meaning only if the FLSA also           employee benefit plan,” with certain enu-          of federally mandated wages is not a viola-
text.” The breadth of the court’s approach to     requires timely payment of wages. Noting             merated exceptions. The FLSA contains no           tion of the Pennsylvania Constitution for the
justiciability undoubtedly will have signifi-     that the same conclusion had been reached by         such provision.                                    simple reason that the federal law supersedes
cant influence for years to come.                 the two other federal circuits that had consid-         The second type of pre-emption, “field          Article III, Section 24. Consequently, the
   On the question of whether or not the          ered the issue (the 2nd and 7th), the Supreme        pre-emption,” applies where Congress evi-          Supreme Court declared that the governor
FLSA requires timely payment of wages, the        Court concurred in 9th Circuit’s analysis.           dences its implicit intent to occupy the entire    may continue to employ and pay all FLSA-
court acknowledged that the FLSA does not            The impact of this particular portion of          field or area. An example is the National          covered employees when a budget is not
explicitly state that wages must be paid on       the court’s ruling extends well beyond the           Labor Relations Act, which courts have held        enacted by the July 1 start of the fiscal year.
the regular payday, or at any other specific      state workers at issue in the case. It will also     pre-empts state laws directed at conduct argu-        With this decision, the Pennsylvania
time. However, its inquiry did not end there.     benefit FLSA-covered local government                ably prohibited or permitted by the statute,       Supreme Court resolved the crucial legal
Applying principles of statutory construc-        workers across the commonwealth. Private             including conduct that Congress, in enacting       rules for the recurring, politically driven bud-
tion, the court noted that where, as here, the    sector employees in Pennsylvania have long           the statute, intended to leave unregulated.        get battles in the middle of which moderately
express language of the statute does not          enjoyed the right to be paid on their regular        Because the FLSA’s savings clause expressly        paid state employees have been caught for
address a particular issue, the court must look   payday under the Wage Payment and                    permits states to enact more protective legis-     years. After this authoritative declaration, the
to the design and purpose of the statute as a     Collection Law. But that law does not apply          lation, the court found field pre-emption was      affected parties will now approach the annual
whole and “give the statutory language the        to state or local government employees.              not applicable in this case.                       budget negotiations with a clear understand-
meaning that advances the policies underly-          Furthermore, no state or federal court in            Third, and finally, “conflict pre-emption”      ing of the applicable legal rules.
ing the legislation.”                             Pennsylvania previously addressed the ques-          applies where compliance with both state              The ruling also takes on national impor-
   Applying this rule to the question at hand,    tion of the FLSA’s timely payment require-           and federal law is impossible, or where the        tance, as it will undoubtedly be looked to for
the court adopted the reasoning of the 9th        ment in a precedential decision.                     state law presents an obstacle to the accom-       guidance by the many other states and
U.S. Circuit Court of Appeals in a case              Finally, on the question of pre-emption,          plishment of the full purpose and objectives       political subdivisions facing increasingly fre-
involving non-payment of wages to California      the Supreme Court concluded that because             of Congress embodied in the federal law. It        quent and protracted budget impasses dur-
state workers during a budget impasse. The        it is impossible during a budget impasse to          was this third type of pre-emption that the        ing these tough economic times. •

Principal                                         in Pallante did not contain an express res-
                                                  ervation of rights preserving claims against
                                                                                                       are jointly and severally liable for the entire
                                                                                                       amount of a verdict, albeit that a jury may
                                                                                                                                                             As the dust settles, the full impact of this
                                                                                                                                                          decision for practitioners remains unclear.
continued from TC5                                the agent.                                           assign a portion of fault to each; but that in     However, the reasoning that led to Maloney
                                                     Under criticism by the concurring and             a case of vicarious liability, a principal and     suggests that the court will conduct a fact
The court declined to limit its holding to        dissenting opinion that the court was con-           agent are 100 percent liable for one act of        sensitive analysis and focus on the intention
the medical malpractice context as sug-           flating joint and several liability with vicar-      wrongdoing, by operation of law.                   of the parties. What is clear going forward is
gested by the concurring and dissenting           ious liability, the court noted that the                In further response to the concurring and       that this decision implicates practitioners,
opinion. Not surprisingly, the concurring         impact of either concept on a plaintiff is the       dissenting opinion, the court noted that sec-      particularly in the careful crafting of settle-
and dissenting opinion contends that              same; that is, in a case where a plaintiff has       tions in the Restatement (Third) of Torts set      ment agreements that reflect an intention to
Pallante is controlling and that the plain-       a meritorious cause against the agent, the           up the same conflict the court resolved here;      release less than all parties. One specific pro-
tiff’s release of the principal employers         principal and agent are each liable to the           that is, between enforcing a default rule relat-   phylactic instruction is apparent; when draft-
resulted in discharge of the agent,               plaintiff for the full amount of claim, even         ing to vicariously liable parties, or honoring     ing an express reservation of rights to pursue
Prendergast.                                      though there can be only a single satisfac-          through contract interpretation principles,        an agent, the release of the principal should
   Significantly, this case of first impression   tion. The Mamalis and Pallante courts rec-           the manifest intention of the parties set forth    also be narrowed to reflect that reservation.
disapproves the Superior Court opinion in         ognized that a vicariously liable principal          in a settlement agreement. In affirming the           Lastly, what is not entirely clear after
Pallante to the extent that decision holds to     and agent are not joint tortfeasors under            Superior Court, the Pennsylvania Supreme           Maloney is the impact of the decision on
the contrary (release of a vicariously liable     the Uniform Contribution Among Joint                 Court sided with the strong public policy in       factual scenarios such as Pallante, in which
principal automatically acts as a release of      Tortfeasors Act. The court here also recog-          Pennsylvania favoring voluntary settlement         there is a release of a vicariously liable prin-
the agent). It should be noted, contrary to       nized the distinction that joint tortfeasors,        of claims, which cuts against application of       cipal, without an express reservation of
the facts here, the release of the principal      as actors who together injure a third party,         inflexible default standards.                      rights against the agent. •

Discharge                                         cause of action where the precise legisla-
                                                  tion in focus, the PHRA, had a definite
                                                                                                          The Weaver decision eliminates wrongful
                                                                                                       discharge for sexual discrimination as a poten-
                                                                                                                                                          based upon the protected characteristics
                                                                                                                                                          and activities of employees and applicants.
continued from TC6                                jurisdictional threshold of four employees           tial claim for thousands of Pennsylvania small     The decision is, instead, another in a series
acts as being illegal under both the state        and that threshold had not been met. The             businesses, but it should not be interpreted to    of recent court rulings that chip away at the
constitution and the PHRA without intend-         Supreme Court reasoned that in spite of              allow for the type of conduct suffered by the      once heralded wrongful discharge cause of
ing a way for such acts to be remedied. It        other general expressions against employ-            plaintiff in that case. It is also important to    action as a catch-all for wrongs in the work-
seemed that the Pennsylvania Supreme              ment discrimination, it would be contrary            remember that other claims continue to exist       place and underlines the firm policy of at-
Court’s 1974 observation in Geary, that the       to legislative intent for employers with             to protect employees. Weaver herself also had      will employment in Pennsylvania.
legislative branch must be deferred to as the     four or more employees to be bound up by             stated claims for assault and battery and inva-       At the same time, employers should not
author of public policy, had been met by the      the strictures of the PHRA’s procedures,             sion of privacy. These are a few of the alterna-   misconstrue the doctrine of at-will employ-
Superior Court in Weaver, which relied            while allowing employers with fewer than             tives available to employees of small compa-       ment as a carte blanche for discharging an
upon these legislative expressions against        four employees a separate means of                   nies suffering from discriminatory conduct         employee for any reason. Just as important,
employment discrimination.                        recourse in the courts.                              on the part of their employer. The unavail-        employees should not expect to seek refuge
   However, in reversing the Superior                The Pennsylvania Supreme Court refused            ability of the wrongful discharge cause of         in a claim for wrongful discharge from any
Court’s holding in Weaver, the Pennsylvania       to circumvent the Legislature’s expression           action thus does not leave a victim like           and all terminations that are seemingly
Supreme Court found that these expres-            of state policy by granting a wrongful dis-          Weaver without recourse.                           unfair. Weaver v. Harpster is simply the latest
sions of public policy, although legislative      charge cause of action after the legislature            The Weaver decision should not be viewed        in a string of cases that carefully define this
in nature, were inadequate to support the         had already excluded such claims.                    as a license to make employment decisions          already narrow doctrine. •
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