Houston Harbaugh, P.C.

Attorneys at Law

Effective January 1, 2018 Picadio Sneath Miller & Norton, P.C. has merged into, and will now practice law as Houston Harbaugh, P.C. Visit Houston Harbaugh here and learn more about all the ways we can serve you.

412-288-4000 888-288-4028
Business Litigation. Pittsburgh Strong.®
Main Menu

Pittsburgh Pennsylvania Law Blog

Changes to VA Pension Rules Go Into Effect October 18, 2018

If you, your parent, your spouse, or other loved one served during an active period of War and may have need of the VA Aid & Attendance benefits in the future, the clock is running. Until now, veterans or their spouses who met medical qualifications could make transfers to lower their assets and allow them to qualify for such benefits. However, under the new regulations promulgated by the VA and just made final, the VA will be implementing, among other changes, a three year lookback period on transfers made of "covered assets" to an individual or a trust or an annuity if the inclusion of such assets would have caused the applicant's net worth to be over the limit permitted under the new regulations. The penalty period for such transfers can be long as long as five years.

Reminder of Annual QSEHRA Notice Requirement 2018

The law governing Qualified Small Employer Health Reimbursement Arrangements (QSEHRAs) requires that a written notice of the availability of the QSEHRA be provided to each eligible employee at least 90 days before the beginning of each year. While special rules for 2017 and 2018 allowed for later deadlines (since QSEHRAs were new and the rules were still being developed), no special deadline is available for a QSEHRA providing benefits in 2019. Therefore, an employer providing a QSEHRA for 2019 must provide the written notice no later than October 3, 2018.

Annual Filings Deadline for Breaches of PHI is March 1, 2018

March 1, 2018 is the deadline by which time Covered Entities who experienced a Breach of Unsecured Protected Health Information (PHI) during calendar year 2017 must notify the Secretary of the U.S. Department of Health & Human Services (HHS).

Superior Court Further Extends Reach of Negligent Misrepresentation Claims in Pennsylvania

Approximately two years ago, I commented on the Superior Court opinion in Gongloff Contracting, L.L.C. v. L. Robert Kimball & Assoc., No. 785 WDA 2014 (Pa. Super. 2015), which expanded the reach of Pennsylvania's negligent misrepresentation law from applying only to claims by contractors against design professionals to also encompassing claims by subcontractors against design professionals.  Recently, the Superior Court has further expanded this cause of action beyond claims against only design professionals.  In Fulton Bank, N.A. v. Sandquist, No. 2306 EDA 2016 (Pa. Super. 2017), the Superior Court has now recognized a cause of action for potential liability against accountants and their firms under a theory of negligent misrepresentation for providing professional information that is designed to be relied upon by a third party.

Image result for negligent misrepresentation

Is Evidence of a Plaintiff's Contributory Negligence Admissible in a Strict Product Liability Action? PA Federal Court Allows It, But only for Limited Purposes

tire3.jpgStrict product liability generally focuses on the product itself, not the negligent conduct of the defendant, and as a result, defendants often are precluded from relying on certain negligence concepts in defending strict liability actions. A plaintiff's comparative fault or contributory negligence, for example, generally may not be used to excuse a product's defects or reduce a defendant's fault. A recent decision from the U.S. District Court for the Middle District of Pennsylvania makes clear, however, that evidence of a plaintiff's negligent conduct may be admissible in a strict product liability case under limited circumstances. Dodson v. Beijing Capital Tire Co., 2017 U.S. Dist. LEXIS 158484, at *8-13 (M.D. Pa. Sep. 27, 2017). Because such evidence can be powerful in defending these types of actions, it is important to understand when and why it may be admissible.

Are Non-Competes Enforceable in PA Independent Contractor Agreements?

Short Answer: Yes, but as with all non-compete provisions, proceed with caution and draft wisely.

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for keyboard-1776643_1280.jpg

Like many states, Pennsylvania has long viewed restrictive covenants such as covenants not to compete with disfavor. Despite its preference against them, non-compete agreements are still frequently used and upheld when narrowly drafted.

In Pennsylvania, in order to be enforceable, a restrictive covenant must satisfy three general requirements:

(1) the covenant must relate to either a contract for the sale of goodwill or other subject property or to a contract for employment;

(2) the covenant must be supported by adequate consideration; and

(3) the application of the covenant must be reasonably limited in both time and territory.

Piercing Pagoda, Inc. v. Hoffner, 351 A.2d 207, 210 (Pa. 1976).

Contractor Overhead and Profit May be Included in "Actual Cash Value" in Homeowner's Policies

Thumbnail image for money-2724248_640.jpgIn the recent case of Kurach v. Truck Ins. Exchange (C.P. Philadelphia 2017), a Pennsylvania Court held that under Pennsylvania law, insurance companies are required to include general contractor overhead and profits in actual cash value payments for losses where repairs would be reasonably likely to require a general contractor.

In this case, the homeowners sustained water damage to their homes. Both homeowners had purchased a higher cost insurance policy that provided that in the event of damage, they would receive "replacement cost", a higher amount than the lesser insurance product which only provides for "actual cash value". The policy provided a two step process whereby the homeowner would receive "actual cash value" upon getting an estimate for the repairs, and then upon completion of repairs would receive the difference between "actual cash value" and "replacement costs". The policy defined "actual cash value" as replacement cost less depreciation. The insurance carrier agreed that repairs would require the involvement of a general contractor. However, the homeowners never actually went to step two of the policy to complete the repairs, and therefore never sought "replacement cost". Rather they asserted that they were entitled to an "actual cash value" which included contractor overhead and profit, even though, by not completing the work, no such overhear or profit were ever incurred. 

Federal Court Grants Summary Judgment to Strict Product Liability Defendant in Case Proceeding Under Tincher's Consumer Expectations Standard

To prevail on a strict product liability claim under Pennsylvania law, a plaintiff must prove the product at issue is defective, the defect existed when the product left defendant's hands, and the defect caused the harm. A product may be defective based on a manufacturing or design defect, or based on a failure to warn. Regardless of the theory, a plaintiff must satisfy one of two standards (or both) to show a product is defective: (i) a consumer expectations standard; and/or (ii) a risk-utility standard. In the wake of Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), Pennsylvania courts continue to define the contours of these standards, and a recent decision from the Western District of Pennsylvania, Igwe v. Skaggs, 2017 U.S. Dist. LEXIS 99622 (W.D. Pa. Jun. 28, 2017), adds clarity to the consumer expectations standard in particular.

dock-441989_640.jpg

In Igwe, the court granted summary judgment to a product defendant in a wrongful death matter where the plaintiff relied solely on the consumer expectations standard. Under this standard, a product "is in a defective condition if the danger is unknowable and unacceptable to the average or ordinary consumer." Tincher, 104 A.3d at 387. The Igwe decision contains a clear analysis of the standard and is an example of how Pennsylvania courts may find that there was no unknowable and unacceptable danger as a matter of law.

In the Wake of Tincher, Can a Strict Product Liability Defendant Rely on Compliance Standards?

In a strict product liability claim, compliance with government regulations and industry standards can be powerful evidence for the defense. Such evidence traditionally has been inadmissible under Pennsylvania law based on the Pennsylvania Supreme Court's decision in Lewis v. Coffing Hoist Div., Duff-Norton Co., Inc., 528 A.2d 590 (Pa. 1987). The Court's decision in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), however, raises questions about the continued viability of Lewis and provides defendants with a compelling argument that this type of evidence should be admissible. Nevertheless, Pennsylvania courts have been slow to reach that conclusion, and recent Superior Court decisions cast doubt on the admissibility of such evidence, which at best remains an open issue.

business-2717427_640.jpg

Pennsylvania Superior Court Decision Highlights Importance of Rebuttal Evidence on Causation in Defending a Strict-Liability, Failure-to-Warn Claim

Owen, Robert 143 200 0137.jpg

The Pennsylvania Superior Court recently affirmed an order of the Court of Common Pleas of Philadelphia County entering a judgment against American Honda Motor Co., Inc. ("Honda") on a jury verdict of $55,325,714 in a personal injury action. American Honda Motor Co., Inc. v. Martinez, 2017 Pa. Super. LEXIS 271 (Pa. Super. Apr. 19, 2017). Plaintiff in Martinez suffered severe injuries in an automobile accident allegedly as a result of (i) a defectively designed seatbelt and (ii) a failure to warn with respect to the subject car's inability to protect passengers in certain types of accidents. In addition to providing a helpful analysis of design-defect claims after Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), the Martinez decision provides guidance as to how Pennsylvania courts analyze causation in a failure-to-warn claim.

The element of causation in a failure-to-warn claim requires plaintiff to prove that had an adequate warning been given, plaintiff would have followed it. See, e.g., Dolby v. Ziegler Tire & Supply Co., 2017 Pa. Super. Unpub. LEXIS 791 (Pa. Super. Feb. 28, 2017). In Martinez, Honda argued on appeal that the trial court erred by instructing jurors that they must presume plaintiff would have followed an adequate warning. The Superior Court affirmed the instruction, noting that the trial court did not apply the presumption "in a vacuum." Critically, plaintiff presented testimony at trial, over Honda's objection, that had there been a warning about the car's inability to protect him in a rollover, he would not have purchased the car. Moreover, Honda did not rebut plaintiff's testimony on this issue. The Superior Court held that in the absence of rebuttal evidence, the heeding instruction was appropriate.

Office Location And Contact Information

Super Lawyers US Law | Network, inc DRI | TM | The voice of defense Bar