The Legal Intelligencer Blog

Litigation Department of the Year Winners

By Ben Seal
Of the Legal Staff

Nearly six months ago, we asked law firms across the state to tell us what makes their litigation departments the best. Following the example set by Legal affiliate The American Lawyer’s Litigation Department of the Year, we wanted to conduct the same competition but keep the focus on Pennsylvania attorneys. It was the first time we had gone through this process and we weren’t sure just what to expect, but the submissions we received were impressive across the board.

We asked law firms to share with us the big victories and important cases that demonstrate why clients choose them when litigation is on the table. The work submitted was done in Pennsylvania and throughout the rest of the country and abroad. The key, though, was that it was done primarily by Pennsylvania lawyers, showcasing the talented litigators at work in the commonwealth. We had difficult decisions to make in each category as we chose our winners, as it was a truly competitive field.

Each of the winners and finalists will be profiled in our Litigation Departments of the Year supplement, which is scheduled for publication on June 26. Thank you to all the firms that submitted their work for the competition, and we look forward to reading them when we next conduct this process.

An event will be held Oct. 4 to honor the winners. For more information, contact Diane McCollum at dmccollum@alm.com or 215-557-2335.

General Litigation (Large Firms)

Winner: Morgan, Lewis & Bockius

Finalist: DLA Piper

Finalist: Cozen O’Connor

General Litigation (Midsize Firms)

Winner: Hangley Aronchick Segal Pudlin & Schiller

Finalist: Meyer, Unkovic & Scott

Intellectual Property

Winner: Reed Smith

Products Liability/Mass Torts

Winner: Pepper Hamilton

Labor and Employment

Winner: Morgan, Lewis & Bockius

Finalist: Salmanson Goldshaw

Insurance

Winner: Reed Smith

Medical Malpractice

Winner: Marshall Dennehey Warner Coleman & Goggin

Class Action

Winner: Kessler Topaz Meltzer & Check

Judge Denies PUC’s Request to Modify Act 13 Injunction Order

By Zack Needles
Of the Legal Staff

A Commonwealth Court judge has denied the state Public Utility Commission’s petition requesting that he modify the order that placed a temporary injunction on the zoning portions of Act 13.

The PUC had asked Keith Quigley, a visiting judge on the Commonwealth Court, to clarify whether the delay enjoins the agency from reviewing existing zoning ordinances to determine whether they violate either the Municipalities Planning Code or Act 13.

The plaintiff municipalities, however, had responded that the order clearly prohibits such review until the injunction is lifted.

Quigley filed an order on Friday denying the PUC’s petition.

The PUC said in its petition that it had intended to issue an implementation order laying out its responsibilities under Act 13, which amends the state’s Oil and Gas Act, on April 26 but has delayed doing so until Quigley clarifies his April 11 order granting a preliminary injunction barring amendments to the Oil and Gas Act related to zoning from taking effect for 120 days.

HB 1950, which was signed into law as Act 13 of 2012 on Feb. 14, prohibits local municipalities from enacting zoning ordinances aimed at banning drilling and restricts ordinances "that are more stringent than the conditions, requirements or limitations imposed on other industrial uses or other land development within the particular zoning district where the oil and gas operations are situated within the local government."

On March 28, the Washington County townships of Robinson, Peters, Cecil and Mount Pleasant, along with South Fayette Township in Allegheny County and Yardley Borough and Nockamixon Township in Bucks County, as well as the Delaware Riverkeeper Network, filed suit against the state, the PUC, the Office of the Attorney General and the Department of Environmental Protection.

The plaintiffs in Robinson Township v. Commonwealth alleged that Act 13 "eliminates the role municipalities must play in protecting the health, safety and welfare of their communities" and transfers that regulatory power to the oil and gas industry itself.

The Act 13 amendments were set to go into effect on April 14, giving municipalities until Aug. 14 to implement new zoning laws, but Quigley said in his April 11 order that the municipalities need more time to prepare.

The amendments not related to zoning, such as those imposing impact fees on drillers, took effect on April 14 as scheduled. The April 11 order gave municipalities 240 days from that date to bring their zoning ordinances into compliance with the new law.

But, according to the PUC, one part of Quigley’s order seemed to suggest that the sections of Act 13 that allow aggrieved parties to seek review of zoning ordinances from either the PUC or the Commonwealth Court were effective immediately, while another portion of Quigley’s order seemed to prohibit such review until the 240-day injunction period expires.

“The Commission simply does not know if it has to tell those parties to wait and see what happens here for the next 240 days or perhaps beyond, or whether it is permitted to review and determine the validity of any pre-existing ordinances that may be challenged due to alleged non-compliance with Act 13,” the PUC said in its April 25 application to modify Quigley’s order.

But the plaintiff municipalities said in their response filed April 26 that no clarification was necessary because Quigley’s order clearly stated that since the portions of Act 13 related to zoning are not yet in effect, municipalities’ ordinances cannot yet be challenged as allegedly violating Act 13.

The plaintiffs alleged that the PUC is seeking “adjudicatory power ahead of the need or ability to comply with portions of Act 13.”

“Because Section 3309 of Act 13 has been expressly enjoined, neither the PUC nor its chairman has any jurisdiction at present to consider challenges to municipal ordinances under Act 13,” the plaintiffs said.

Fresh Ink: Inside Today's Legal

Welcome to your Monday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is a look at Pennsylvania firms and how they fared in the latest Am Law 100 rankings. As reporter Gina Passarella writes, the same nine firms appeared as did last year, and none were able to move up the list. Morgan, Lewis & Bockius and Reed Smith were the only Pa. firms to maintain their rankings, while the other seven slipped down the charts.

Also above the fold on Page 1, reporter Ben Present writes that a request for proposal is schedule to go online today giving lawyers the opportunity to bid on a deal potentially worth $1.85 billion that would privatize Philadelphia Gas Works. PGW is one of the last municipally owned utilities in the country and the largest of its kind, with more than half a million customers.

Below the fold on Page 1, Gina Passarella writes that a federal judge has denied a motion for sanctions a former Elliott Greenleaf partner filed against the firm for alleging in a complaint that he misused escrow funds. This is the latest chapter in the ongoing battle between Elliott Greenleaf and Stevens & Lee, the firm the partner, William R. Balaban, moved to.

Also below the fold on Page 1, reporter Amaris Elliott-Engel writes that the Nutter administration has agreed to pay counsel fees directly, as per the First Judicial District’s request.

In more Regional News on Page 3, reporter Zack Needles writes that a West Virginia firm, Jackson Kelly, has merged with Western Pennsylvania energy boutique Gormly Gormly & Yuhas.

Also on Page 3, a judge has trimmed the claims in an egg price-fixing class action suit in the Eastern District of Pennsylvania.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In the Law Technology page, social media can give firms an inside voice and LexisNexis has debuted e-book software for law libraries.

In a Family Law column on Page 7, Andrew D. Taylor writes about the relocation provision of the new Child Custody Act and how it will be handled going forward.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Municipalities Balk at PUC’s Request to Clarify Terms of Act 13 Injunction

By Zack Needles
Of the Legal Staff

The state Public Utility Commission has asked the Commonwealth Court to modify its order placing a temporary injunction on the zoning portions of Act 13 in order to clarify whether the delay enjoins the agency from reviewing existing zoning ordinances to determine whether they violate either the Municipalities Planning Code or Act 13.

The plaintiff municipalities, however, have responded that the order clearly prohibits such review until the injunction is lifted.

The PUC said it had intended to issue an implementation order laying out its responsibilities under Act 13, which amends the state’s Oil and Gas Act, on April 26, but has delayed doing so until Keith Quigley, a visiting judge on the Commonwealth Court, clarifies his April 11 order granting a preliminary injunction barring amendments to the Oil and Gas Act related to zoning from taking effect for 120 days.

HB 1950, which was signed into law as Act 13 of 2012 on Feb. 14, prohibits local municipalities from enacting zoning ordinances aimed at banning drilling and restricts ordinances "that are more stringent than the conditions, requirements or limitations imposed on other industrial uses or other land development within the particular zoning district where the oil and gas operations are situated within the local government."

On March 28, the Washington County townships of Robinson, Peters, Cecil and Mount Pleasant, along with South Fayette Township in Allegheny County and Yardley Borough and Nockamixon Township in Bucks County, as well as the Delaware Riverkeeper Network, filed suit against the state, the PUC, the Office of the Attorney General and the Department of Environmental Protection.

The plaintiffs in Robinson Township v. Commonwealth alleged that Act 13 "eliminates the role municipalities must play in protecting the health, safety and welfare of their communities" and transfers that regulatory power to the oil and gas industry itself.

The Act 13 amendments were set to go into effect on April 14, giving municipalities until Aug. 14 to implement new zoning laws, but Quigley said in his April 11 order that the municipalities need more time to prepare.

The amendments not related to zoning, such as those imposing impact fees on drillers, took effect on April 14 as scheduled. The April 11 order gave municipalities 240 days from that date to bring their zoning ordinances into compliance with the new law.

But, according to the PUC, one part of Quigley’s order seemed to suggest that the sections of Act 13 that allow aggrieved parties to seek review of zoning ordinances from either the PUC or the Commonwealth Court were effective immediately, while another portion of Quigley’s order seemed to prohibit such review until the 240-day injunction period expires.

“The Commission simply does not know if it has to tell those parties to wait and see what happens here for the next 240 days or perhaps beyond, or whether it is permitted to review and determine the validity of any pre-existing ordinances that may be challenged due to alleged non-compliance with Act 13,” the PUC said in its April 25 application to modify Quigley’s order.

But the plaintiff municipalities said in their response, filed April 27, that no clarification was necessary because Quigley’s order clearly stated that since the portions of Act 13 related to zoning are not yet in effect, municipalities’ ordinances cannot yet be challenged as allegedly violating Act 13.

The plaintiffs alleged that the PUC is seeking “adjudicatory power ahead of the need or ability to comply with portions of Act 13.”

“Because Section 3309 of Act 13 has been expressly enjoined, neither the PUC nor its chairman have any jurisdiction at present to consider challenges to municipal ordinances under Act 13,” the plaintiffs said.

Castille Says Funding, Openness Mark Path to Justice

By Ben Present
Of the Legal Staff

Ensuring justice in state courtrooms can only be accomplished through openness and proper funding, Pennsylvania Chief Justice Ronald Castille said last week in a released statement.

Latching onto an American Bar Association push to address underfunded judiciaries nationwide, Castille's remarks came in his annual “State of the Commonwealth's Courts,” in which he said Pennsylvania courts only continue to "tread water" even as the overall fiscal picture for state courts has continued on a grim path.

Castille noted that state courts receive about .5 percent of the state's overall budget. That amounts to about $328 million, 85 percent of which goes to court personnel.

Although he cited funding as the judiciary's biggest hurdle, Castille, in writing for the state's Unified Judicial System, said he believes the Pennsylvania General Assembly understands the court system's crunch for cash and recognizes the judiciary's efforts to navigate the difficult financial terrain.

One such effort involves putting technology to work, an area in which Castille said Pennsylvania courts lead the nation. He also pointed to an "unprecedented effort" to make sure the state has enough jurists to meet its caseload demands, but no more than that.

"We want you to know what we are doing, and we need you to know of the issues that confront us," Castille said. "Some may observe that financial resources have become a recurrent theme in this report in recent years, but only of necessity, for those issues remain critical."

Castille also boasted the state's problem-solving courts, what he called "landmark efforts" to ensure children safe, permanent homes, and its mortgage mediation programs as successes of the judiciary.

Five Pitfalls of the Settlement Process

By George J. Audi
Special to the Legal

When you decide to take on a case, what's the ultimate, long-term objective that you have for the client? Some say to bring justice, some say to maximize the value of the case, some respond with the famous quote from Cuba Gooding Jr., "Show me the money!" All valid points, but I'd like to take it one step further.

Could it be said that the objective is to provide your client with as many positive experiences throughout the entire settlement process, so that when they are "shown the money," then and into the future, they and everyone that they are connected with will call YOU when they are injured or are in an accident?

All good attorneys have the ability to establish and foster great rapport with their clients. Building that relationship brings trust and confidence that you will do everything you can to maximize the value of their case. However, there are some pitfalls along the way that can put an unwanted dent in that rapport.

1. Starting Late Resolving Liens

When the words Medicare and Medicaid are uttered, it produces a plethora of negative emotions. Banging your head against a brick wall seems like a familiar thought in many cases. If you get the defendant to settle the case, having a lien just hanging out their without a final demand will invariably cause the settlement of the case to be delayed, which is a negative in the mind of your client.

2. Settlement Delay

When the settlement is delayed for any reason, it often puts the client in an even more desperate situation than when you took on the case. Often, they have to take out a loan against their future net settlement proceeds. Although pre-settlement funding is often a valuable resource that can help your client get over the hump until the case is settled, it is a negative in the mind of your client.

3. Unknown Government Benefits Issues

The case is settled and the defendant is ready to write a check to your client and it is uncovered that they are receiving SSI, Medicaid, food stamps or Section 8 housing allowance ... or Medicare and the issue of an MSA was never addressed. The government has income and asset limitations that, if exceeded, can cause your client’s benefits to be rescinded. There are ways to circumvent that process through the use of special needs trusts and other planning techniques, but the case delay in preparing to protect those government benefits is a negative in the mind of your client.

4. Allowing the Defense Structure Broker to Control Your Client

You're in mediation, the demand is $1.5 million and the defense comes back with an offer of $150,000. A slap in the face, yes, but all part of their negotiating tactics. After six hours of back and forth, the case settles for $800,000. The mediator comes in and hands you a piece of paper. It's a structured settlement proposal run by a settlement broker representing the insurance company. You think a structure makes sense for your client and they agree. If you allow the defense broker to help your client, here's what's going through your client’s mind:

"I've been here for six hours, and the whole time, those suits in the other room kept fighting to give me less and less money. Yeah, we agreed on a settlement, but I still don't think they've given enough ... it'll never be enough ... they don't know what I go through every day. So you want me to go to those people who for the past six hours I've loathed, and you want them to take this chunk of money – more money than I've ever seen, the basis for my financial future – and you want me to let those people I've reviled help me?"

This is a negative in the mind of your client.

5. Assuming Your Client Knows the Details of All Their Financial Options

You settle the case, your client gets a very nice chunk of change and they are very happy. Two years later you get the call: “Is there any more money you can get me? I'm broke!" As an attorney in the highest tax bracket, I'll pose this question: If you had the chance to take some of your money and put it in a place that was creditor-proof, divorce-proof, guaranteed and forever tax-free, would you do it? If it is a valuable option for you, don't you think the same for your client (especially the client who needs to be protected from themselves, needy family members and unscrupulous friends)? A structured settlement is a unique option with a limited window of time to secure. Your client may not end up structuring any of his or her money. Providing your client the opportunity to speak with an expert to fully understand and see on paper what a structure would look like for them should be an occurrence in every case. Lump sums of money in the hands of an unsophistcated client in many cases cause that dreaded phone call in two years looking for more money – a negative in the mind of the client.

Avoid the negatives in the mind of the client

• Start the Medicare/Medicaid lien process early, as soon as you take on the case.
• Uncover early in the process all of the government benefits being received by your client.
• Have a plaintiff-only settlement planner involved with your case and your client. Don’t ever let the defendant tell you that you must use their broker.
• Have your client hear and see from an expert how a structured settlement or trust can benefit them.

George J. Audi is a plaintiffs-only settlement planner with The James Street Group located in Sinking Spring, Pa. He can be reached at 610-741-6858 or gaudi@tjsg.com.

Fresh Ink: Inside Today's Legal

Welcome to your Thursday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is an analysis of the general election and the challenges it poses to attorney general candidates Kathleen Kane and David Freed. As reporter Ben Present writes, observers indicate that the Republican Party cares more about the position than any other row office. The GOP has held the position since it became an elected posted in 1980.

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes that the out-of-county judge presiding over the First Judicial District’s legal malpractice suit over the Philadelphia family courthouse project said the first Supreme Court justice to preside over the initiative, Sandra Schultz Newman, is not entitled to protective order from having to give a deposition.

Below the fold on Page 1, reporter Gina Passarella writes that the state Supreme Court has granted allocatur in a negligent infliction of emotional distress insurance case.

Also below the fold on Page 1, Amaris Elliott-Engel has the latest from the priest sex-abuse trial. Yesterday, a witness testified he was not warned about defrocked priest Edward V. Avery.

In more Regional News on Page 3, reporter Saranac Hale Spencer writes that claims against British Airways are time-barred under an international agreement governing aviation.

Also on Page 3, Ben Present writes that Penn State has again lost a venue fight after a judge ruled the First Judicial District was not an inconvenient forum for the university.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

On the Paralegals Page, Judy Stouffer writes that the time has come to consider digitizing your law firm’s case files, while Christine Flynn writes about the benefits of paper records and the pitfalls of their digital counterparts in a point-counterpoint.

In a Young Lawyer Editorial Board column on Page 7, the board writes about the challenges and opportunities of shingle hanging for those fresh out of law school.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Recent Amendments to Rules 121, 903, 1113 and 1512

By Mandi L. Scott
Special to the Legal

On April 9, 2012, the Pennsylvania Supreme Court amended the Official Note to Pa. R.A.P. 121 and Rules 903, 1113, 1512 to clarify that subdivision (e) of Rule 121 applies to calculating the deadline for filing cross-appeals, cross-petitions for allowance of appeal and additional petitions for review.

Rule 121(e) (“Additional time after service by mail and commercial carrier”) provides that:

“Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon that party (other than an order of a court or other government unit) and the paper is served by United States mail or by commercial carrier, three days shall be added to the prescribed period.”

The official comment to Rule 121(e) expressly explains that this subdivision does not apply to the filing of a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal or a petition for reconsideration or reargument because the deadlines for filing such documents run from the entry and service of an order, not a filing by another party.

However, confusion had arisen with respect to whether 121(e) applied to the filing of a cross-appeal, cross-petition for allowance of appeal and additional petitions for review because the rules governing such submissions (Rules 903, 1113 and 1512) calculated the deadline within so many days of the “filing” (rather than service) of the initiating appeal or petition. (Compare Coney Island II Inc. v. Pottsville Area School District, 497 Pa. 373, 441 A.2d 747 (1982) and Malt Beverages Distribution Association v. PLCB, No. 54 MM 2009, 2009 Pa. Lexis 1613 (Pa. Aug. 6, 2009).)

The amendments to Rules 903, 1113, 1512 simply substitute “served” for “filed” in determining the filing deadline, bringing cross-appeals, cross-petitions for allowance of appeal and additional petitions for review clearly within the application of Rule 121(e). The Official Note to Rule 121 was amended to expressly include such documents.

Mandi L. Scott is an associate with the Pittsburgh-based law firm of Goehring Rutter & Boehm, where she has been practicing since 2004. Currently, her practice focuses on appellate issues and municipal law. To contact her, e-mail mscott@grblaw.com.

Cozen O’Connor Wants All Its Elevators Fixed

By Gina Passarella
Of the Legal Staff

Cozen O’Connor’s suit against its landlord over allegedly faulty elevators and general building disrepair has resulted in only half of the elevators being fixed. That wasn’t enough for the firm, which has now filed a motion in the case to enforce the lease’s arbitration agreement.

Cozen O'Connor sued the landlord of its 1900 Market Street office space in the Philadelphia Court of Common Pleas in an effort to either be released from the five-year lease obligation it began last year or force the landlord into arbitration. The firm said the landlord has failed to properly maintain the Class A building and refused to arbitrate Cozen O'Connor's complaints, according to the court filing.

Landlord 1900 Market GP and its general partner OSEB Associates filed a response saying it has maintained the building in accordance with the lease, has modernized elevators despite having no contractual obligation to do so, and has no obligation to arbitrate disputes over elevator repairs as the firm suggests, according to the filing.

In a recent filing in the case, Cozen O’Connor said four of the nine elevators in the building have been modernized as of the filing of the motion, with one more in the works.

“Landlord, however, has refused to commit to completing the modernization of the remaining four elevators at the building, insisting that it has no obligation to do so,” Cozen O’Connor said in the filing. “Landlord has indicated, through counsel, that it is not willing to arbitrate this issue and that it believes it is not required to do so under the lease.”

According to Cozen O’Connor’s complaint, the firm’s employees and visitors have been trapped in elevators at the building on several occasions. The elevators take people to floors they didn't select or do not take people to floors they did select, the firm said. The buttons, directional lights, audible function and emergency phones have malfunctioned and the employees complain of long wait times, slow-moving elevators, bumpy rides or elevators that won't move at all, according to the complaint.

The firm said in its latest filing that, since the filing of the suit, the landlord has “attempted to address” some of the other issues the firm raised in its complaint regarding building maintenance. Some of those problems alleged in the complaint included a leaking atrium in the lobby during heavy rains, for which management placed buckets and trash cans to catch the water instead of repairing the leaks.

The firm also argued the HVAC system regularly malfunctioned, the cleaning services were inadequate, the plants in the atrium lobby were not properly cared for and there were odors from the loading dock.

Gina Passarella is the senior reporter for The Legal. She can be contacted by e-mail at gpassarella@alm.com or phone at 215-557-2494. Follow her on Twitter at @GPassarellaTLI.

Fresh Ink: Inside Today's Legal

Welcome to your Wednesday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story is a split en banc state Superior Court panel barring a venue change from Philadelphia to Dauphin County in a suit against Harrisburg law firm Keefer Wood Allen & Rahal and other defendants. As reporter Zack Needles writes, the panel ruled 6-3 to reverse a Philadelphia Court of Common Pleas ruling that had granted the defendants’ petition to change venues for forum non conveniens, a ruling that was then upheld 2-1 by a three-judge Superior Court panel.

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes on yesterday’s events from the Catholic Archdiocese of Philadelphia priest sex-abuse trial. Philadelphia Common Pleas Judge M. Teresa Sarmina said she would not prospectively rule on whether prosecutors could introduce defrocked priest Edward V. Avery’s guilty plea to sexually abusing D.G., who is set to testify today, until after cross-examination is conducted.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that a federal judge has denied a $926,000 referral fee to an attorney who referred cases to a class action RICO suit that settled for hundreds of millions of dollars in 2009.

In more Regional News on Page 3, David Gialanella of Legal affiliate New Jersey Law Journal writes about a U.S. Court of Appeals for the Third Circuit ruling that the government does not need to send a lawyer or other representative to administrative or litigation proceedings for a successful adversary to win attorney fees incurred in fighting the government’s action.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In this week’s GC Mid-Atlantic column on Page 5, Steven D. Usdin and Nella M. Bloom write about identifying signs that a company is in financial distress.

In a Media Law column on Page 7, Gayle C. Sproul and Michael Berry write that the press and public should be free to tweet from court.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.