The Gist of a Legal Malpractice Action

There are times when a disgruntled client believes his case was mishandled by his attorney to such an extent that he needs to bring suit against the attorney to make him whole. When bringing such a suit, a client can bring an action against his attorney sounding in tort for legal malpractice and/or an action sounding in breach of contract.

A malpractice claim addresses whether an attorney performed his duties according to the accepted standards of practice and is subject to a two year statute of limitations. A breach of contract claim addresses whether the attorney fulfilled his duties according to the contract that an attorney has with his client and is subject to a four year statute of limitations. According to the so-called “gist-of-the-action” rule, a litigant may not bring a tort claim (e.g.: legal malpractice) against someone if the legal duty that is claimed to have been breached by the opposing party is created by the terms of a contract.

It is not uncommon for both legal malpractice and breach of contract claims to be raised simultaneously by disgruntled clients against their attorneys, and the recent matter of New York Central Mutual Insurance Company and St. Paul Mercury Insurance Company v. Margolis Edelstein and Michael T. Savitsky, United States Court of Appeals for the Third Circuit, Case No. 15-1541 helps provide guidance regarding which is the more appropriate claim.

The New York Central matter centered on an attorney’s representation of an automobile insurance company with regard to the coverage it elected to provide (or lack thereof) for an automobile accident. At the conclusion of the case, the insurance company believed it received poor, indeed substandard, legal advice from its attorney which, as a result, led to its suing its attorney for breach of contract. The defendant attorney filed a motion to dismiss (which was granted, leading the insurance company to appeal to the Third Circuit) based on the “gist-of-the-action” rule. The successful argument proffered by the attorney was that, regardless of the labeling provided by the insurance company, its claim was actually a malpractice claim. The impact of a breach of contract claim being construed as a malpractice claim is that it shortens the applicable statute of limitations from four years (for contracts) to two years (for torts), which would lead to the dismissal of the insurance company’s claims as they were filed more than two years after the incident giving rise to its case against its attorney.

The Court indicated that a claim for breach of contract must arise from the duties created by a contract and not duties created through a “broader social duty.” The duty at issue under a contract claim must be one which a party would not otherwise have been obliged to do but for the terms of the contract.

According to the Court, the obligation for an attorney to perform his duties competently is one which looks to “broader social duties” and not simply the specific terms of a contract. According to the contract at issue, the attorney in this case was tasked with researching, drafting, and communicating a legal opinion to the insurance company regarding exposure to civil liability flowing from a specific automobile accident. To that end, the Court observed that the attorney did research, draft, and communicate the aforesaid legal opinion to the insurance company. Consequently, the attorney did not breach the contract. The insurance company’s claim is, more-or-less, that the attorney did a poor job in researching, drafting, and communicating the legal opinion, which is distinct from claiming the attorney did not perform the tasks he was contracted to do. In other words, as the Court pointed out, the insurance company’s claim “arises from [the attorney’s] negligent performance of his contractual duty obligations and, therefore, sounds in tort.”

Due to the above, the Court construed the breach of contract claim against the attorney as a malpractice claim, and, therefore, applied the two year statute of limitations for a malpractice claim to the insurance company’s claims, which resulted in the dismissal of those claims due to being time barred.

The decision above is beginning to be adopted generally as it has already been applied in the matter of Rinker v. Amori, Case No.: 3:15-1293, 2016 US Dist. Lexis 36712 at 19-20 (M.D. Pa. Mar. 22, 2016) and is consistent with the Pennsylvania Supreme Court case Bruno v. Erie Insurance, 106 A.3d 48 (Pa. 2014).

So, practitioners should be aware and vigilant to ensure they are compliant with the “gist-of-the-action” rule, and remember that, regardless of how a case is labeled, a court will look to the substance of the claims made to determine whether it sounds in contract or in tort.

Originally published on September 26, 2016 in Upon Further Review and can be seen here.

Lacking of Specificity About Specificity

F.R.C.P 8(a) and 8(c) requires so-called notice pleading for the claims made in pleadings. Notice pleading requires a party to plead with specificity sufficient to give an opposing party notice of what the claim(s) being made are. A question has arisen in federal court as to whether affirmative defenses, a type of pleading typically filed by a defendant against a plaintiff’s complaint, need to meet the specificity requirement mentioned above.

The U.S. Supreme Court, in the matters of Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), appeared to create new pleading standards; however their application to affirmative defenses is unclear.

The matter of Tyco Fire Products v. Victaulic, 777 F.Supp.2d. 893 (E.D.Pa.2011), in the Eastern District of Pennsylvania attempts to address the ongoing development of the pleading requirements for affirmative defenses.

As is typical, the defendant in Tyco filed a list of affirmative defenses in conclusory form responding to various legal claims. The plaintiff, in response, filed a motion to dismiss the affirmative defenses on the basis that they lacked the necessary specificity per the rules cited above.

When analyzing the arguments presented pursuant to the aforesaid motion, the court noted that F.R.C.P. 8(a) does not apply to affirmative defenses as, per this court, they are dealt with by F.R.C.P. 8(c). Prior to Twombly, affirmative defenses would only be stricken if no set of facts could be inferred to support them. Since the Twombly decision, some say the pleading requirements have risen to something above a speculative level and/or a formulaic recitation of labels or conclusions, and some sort of factual allegations are now required.

In light of the above, the court pointed out that lower courts across the country are divided as to how these Supreme Court cases apply to affirmative defenses; indeed, the court noted, many courts have taken the position that these cases do not apply to affirmative defenses. Significantly, some courts have recognized that as the Supreme Court only interpreted F.R.C.P. 8(a), and not 8(c), there should be no change to the application of 8(c) to affirmative defenses. By contrast, other courts interpret the applicable law as having always required fair notice for all pleadings, including even affirmative defenses.

The U.S. District Court of the Eastern District of Pennsylvania, in Tyco, was more persuaded by the argument that as the Supreme Court interpreted 8(a) and 8(c) differently, affirmative defenses do not require the specificity of other pleadings and need not be plausible to survive. Affirmative defenses need only to provide fair notice of the issues and arguments raised without the specificity required in other sorts of pleadings like complaints and counterclaims. The court argued that it would only strike affirmative defenses challenged on the basis of specificity only if they cannot meet this very low standard, which it believes is consistent with the language of 8(c). Indeed, the court observed that its interpretation is consistent with the fact that no responsive pleading to affirmative defenses is legally or procedurally required. Further, requiring greater specificity imposes an unreasonable burden on parties who risk waiving the defenses they do not raise at the pleading phase due to having insufficient information to raise them as affirmative defenses at the time of filing.

The court admitted that this area of the law, namely the interpretation of F.R.C.P. 8(a) and (c) relative to affirmative defenses, is still very fluid and variable. As a result, it is important for the practitioner to ensure he is familiar with the prevailing interpretation when filing affirmative defenses.

Originally published in The Legal Intelligencer Blog on August 5, 2016 and can be seen here.

Federal Courts Interpret Federal Law Even in State Court

In the matter of James v. City of Boise, Idaho (136 S.Ct. 685 (2016)), the Supreme Court of the United States has clarified for all state courts, including Pennsylvania, who/what has the ultimate authority, and indeed the jurisdiction, to interpret and apply federal law.

 

The Plaintiff in the James matter filed a claim under 42 U.S.C. Section 1983 against the city of Boise and some of its police officers after she was bitten by one of their police dogs while they were responding to a burglary call.

 

Plaintiff brought suit in her local state trial court.  Plaintiff was unsuccessful at trial which led to her appealing the matter all the way to Idaho’s Supreme Court.  The Idaho Supreme Court affirmed the dismissal of Plaintiff’s case and awarded the Defendants appellate attorneys’ fees.  Plaintiff again appealed, this time to the Supreme Court of the United States.

 

Pursuant to 42 U.S.C. Section 1983, the court may elect to award reasonable attorneys’ fees to a prevailing party in a civil rights law suit.  The United States Supreme Court, in the matter of Hughes v. Rowe, 449 U.S. 5 (1980), interpreted 42 U.S.C. Section 1988 to allow attorneys’ fees to be assessed only if the underlying action was frivolous, unreasonable, or without foundation.

 

When deciding the James case, the Idaho Supreme Court decided, unilaterally, that it was not bound by United States Supreme Court’s interpretation of 42 U.S.C. Section 1988 as enunciated in the Hughes matter.  The logic employed by the Idaho Supreme Court led it to conclude that while the United States Supreme Court can determine how federal courts can assess attorneys’ fees, it has no authority to do so for state courts such as the Idaho Supreme Court.  As a result, the Idaho Supreme Court ruled that it, and/or its lower courts, could assess attorneys’ fees without a prior determination of whether the underlying matter was frivolous, unreasonable, or without foundation.

 

Upon review of the Idaho Supreme Court, the United States Supreme Court, in no uncertain terms, reversed the Idaho Supreme Court, indicating that federal statutes are definitively interpreted by federal courts, with the Supreme Court, of course, being the ultimate authoritative federal court, and those interpretations, must be respected by state courts.

 

In support of its decision, the United States Supreme Court went back to 1816 in citing Justice Story in Martin v. Hunter’s Lessee, 1 Wheat. 304, 348 when he ruled “the laws, the treaties, and the constitution of the United State would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states.  The public mischiefs that would attend such a state of things would be truly deplorable.”

 

In short, the Idaho courts, or the courts of any state including those in Pennsylvania, are bound by the United States Supreme Court’s interpretation of federal law regardless of whether the underlying matter is a state case or in state court.

Originally published in The Legal Intelligencer Blog on April 7, 2016 and can be seen here.

Fallout for Injuries Sustained by Contractor’s Employee

When construction is taking place on a piece of real estate, and an employee of the contractor doing the work is injured there, who bears the potential tort liability for the injury, the property owner, the general contractor, or both?  Luckily Pennsylvania law provides a way to discern how liability should be distributed if there is no existing contract between the contractor and property owner which addresses the liability question.

The basic legal principle is foundational, well established, and has manifold case support in Pennsylvania.  The standard of care present in such a case mirrors the standard of care a property owner has to an individual on the property owner’s land.  The standard of care a property owner has depends upon whether the individual on the property owner’s land is a trespasser, licensee, or invitee.  Under Pennsylvania law, the employee of a general contractor who is authorized to be on the property falls within the classification of business invitee, and therefore, the duty of care owed to a business invitee is the highest duty owed to any entrant upon the property.

Pennsylvania “case law sets forth the duty that a possessor of law owes to business invitees as follows:  A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, and only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.”  Chenot v. A.P. Green Services, Inc., et al., 2006 Pa.Super. 52, 63 (2006)  Therefore, a property owner is potentially liable for the injuries sustained by a contractor’s employee while on the property.

In addition, there is no doubt that a duty of care attaches to a contractor for the injuries sustained by its employees.  Suffice it to say, a contractor has a duty, for which it can be held liable if breached, for injuries sustained by its employees while they are engaged in working for the contractor at the property.  However, the duty of care applied to a contractor does not lessen or relieve the property owner of his/her/its duty of care over business invitees/visitors.  Despite a contractor’s duty of care, a property owner “must [still] protect an invitee not only against known dangers, but also against those which might be discovered with reasonable care.” The court in  Gutteridge v. A.P. Green Services Inc., A.W. et al., 804 A.2d 643, 657 (Pa. Super. 2002) stated that a property owner ‘“owes a duty to warn an unknowing contractor of existing dangerous conditions on the landowner’s premises where such conditions are known or discoverable to the owner.”’  Finally, it should also be noted that the property owner’s duty to warn remains regardless of whether a contractor ‘“exercises full control over the work and premises entrusted to him.’”  (See Gutteridge).

Based upon the above, it is abundantly clear that a property owner can be held liable for the injuries sustained by a contractor’s employee working at his property if he breaches the duty of care described above and does not fulfill his duty to warn.  Consequently, the highest standard of care that a property owner ought to maintain applies to an employee of a contractor at the property who is authorized to be working there.  Such an employee is a business invitee of the property owner.  Therefore, to that end, a property owner has a duty to protect such an employee from known dangers at the property and those which could be discovered with reasonable care.  The liability of the property owner is supplemental to, and/or in addition to, any liability the contractor may also have for his employee’s injuries.

Originally published in The Legal Intelligencer on January 28, 2016 and can be found here.

Superior Court Relaxes Rules for Requests for Admissions

The discovery process is one of the most critical parts of litigation.  As any practitioner knows, the discovery process has very specific and procedurally established deadlines.  While these deadlines are frequently missed, and subsequently compelled through court order, one form of discovery carries with it, in theory at least, much stricter deadlines, namely Requests for Admissions.

According to Pa.R.C.P. 4014(b) a party who receives Requests for Admissions has thirty (30) days to answer them; otherwise the requests are deemed conclusively established.

Just how “conclusively” the requests are established was explored in the recent matter of Krepps v. Snyder, 112 A.3d 1246 (Pa.Super.2015).  The underlying matter involved a malpractice claim against a podiatrist.  The malpractice allegedly involved the podiatrist misapplying amputation prevention procedures to the Plaintiff which resulted in the partial amputation of the Plaintiff’s leg.

At the trial level the court refused to allow the Plaintiff’s admissions to be conclusively established.  On the last day of the trial, the Plaintiff attempted to introduce the requests for admissions as conclusively established due to the Defendant’s failure to respond to them in a timely or complete fashion.  In response to the Plaintiff’s request to introduce the requests for admissions, the trial court denied the requests on the basis that the Plaintiff’s timing was inappropriate in introducing the requests at the end of trial, that their relative value in the face of the other evidence proffered during the trial was low, and it was the court’s belief that the Plaintiff was not prejudiced by the late (or lack of) responses to the requests for admissions.  Instead, the court, used a rather liberal application of Pa.R.C.P. 126 (the rule which states that the Rules of Civil Procedure ought to be applied and construed liberally) to negate the clear terms of Pa.R.C.P. 4014(b).  Despite the above, it is also worth noting that the court – rather counter intuitively – also recognized that the admissions “in principle” should be deemed established, but still refused to deem them as such.

The Plaintiff appealed the trial court’s decision to not find the admissions conclusively established to Pennsylvania Superior Court.  In its review of the trial court’s decision, the Superior Court highlighted the portion of Pa.R.C.P. 4014(b) which indicates that the thirty (30) day deadline noted above may be modified to a “shorter or longer time as the court may allow.”  Furthermore, it deferred to the Pennsylvania Supreme Court’s decision in Stimmler v. Chestnut Hill Hospital, 602 Pa. 539 (2009) which indicated that the purpose of Pa.R.C.P. 4014(b) is to help expedite the discovery process and placed the onus to enforce the requests for admission on the party requesting them.  The Supreme Court went on to say that Rule 4014(b) permits the “withdrawal of or amendment to answers to requests for admissions ‘when the presentation of the merits of the action will be subverted thereby’ and where the requesting party has failed to establish that the withdrawal of or amendment to requests for admissions will prejudice the party ‘in maintaining the action or defense on the merits.”’

Additionally, the Superior Court looked to precedent in suggesting that the Rules of Civil Procedure, while compliance with them is expected, are to be understood as not ends in themselves which, in turn, discourages their rigid application.  In short, the Rules are to serve the interests of fairness and justice and the court merely looks for substantial compliance to them.

The Plaintiff argued that an eleven (11) month delay on responding to the requests for admissions substantially affected him and the litigation and, moreover, could not be considered substantial compliance.  The Plaintiff also claimed that the trial court’s refusal to enter the admissions into evidence adversely prejudiced his efforts to prove his case as, he argued, the admissions filled in some gaps left open by the other evidence presented at trial.

In reviewing the trial court’s decision, the Superior Court could not conclude that the trial court erred in allowing Pa.R.C.P. 126 to effectively negate the requirements of Pa.R.C.P. 4014(b) in this matter, if only because 4014(b) specifically allows the court to expand or contract those requirements (see above).  The Superior Court did view the long delay in responding to the Admissions with disfavor, but it also took note of the fact that even with the long delay the Plaintiff still received responses to them from the Defendant eighteen months prior to the start of trial, which was more than enough time for Plaintiff to seek further discovery if need be.  Further, the Plaintiff argued that the trial court’s failure to admit them could have given the jury the appearance that the issues in the Requests were “debated” rather than established.  The Superior Court agreed in theory to the Plaintiff’s argument, but ultimately did not find it persuasive enough to overturn the trial court’s decision as the Superior Court agreed with the trial court that the timing of the responses were not prejudicial regardless (see above).  In making this decision, the Superior Court looked to the matter of Estate of Borst v. Edward Stover Sr. Testamentary Trust, 30 A.3d 1207 which “observed that ‘[t]he test of prejudice turns on whether a party opposing the withdrawal [of an admission] is rendered less able to obtain the evidence required to prove the matters which had been admitted”’ and in reviewing the instant matter, the Superior Court could not find that the Plaintiff had been so prejudiced.  The Superior Court also ruled that trying to admit the Requests at the end of trial – after two days’ worth of testimony – was inappropriate as they should have attempted to admit them at the start of trial.  Finally the Superior Court noted that the discovery rules are designed to streamline the litigation and facilitate the eliciting of evidence and are not designed to be punitive; indeed, the court pointed out, that fairness and justice are not always served by strict application of the rules.

Despite what appears to be the very plain language of Pa.R.C.P. 4014(b), the court, through this ruling, appears to have taken some of the teeth out of the Rule and its application in matters where a party does not comply with its thirty (30) day deadline.  Practitioners, both those sending and receiving discovery, should be aware of how the court has applied this rule and how to remain compliant with the same.

Originally published in The Legal Intelligencer on November 19, 2015 and can be seen here.

Limiting Legal Malpractice Claims: Applying the Glenbrook Analysis

The statue of limitations for a legal malpractice action in Pennsylvania is two years from the date of the malpractice; however that time period may be extended under certain circumstances.  In Glenbrook Leasing Co. v. Beausang, 839 A.2d 437 (Pa. Super. 2003), affirmed, 881 A.2d 1266 (Pa. 2005), the Pennsylvania Superior Court explored the viability of various ways to potentially extend that two year period.

Plaintiff in Glenbrook is a real estate partnership which purchased office space in a condominium development to be used as medical offices.  The agreement of sale for the office space included language granting Plaintiff use (and alleged ownership) of 35 parking spaces.  Nothing was placed in the deed regarding Plaintiff’s ownership of the aforesaid parking spaces.

About six years later, the condominium association took action to limit Plaintiff’s use of the aforesaid 35 parking spaces.  Unsurprisingly, a dispute arose between Plaintiff and the condominium association regarding the ownership and use of the parking spaces, which eventually evolved into litigation.  The litigation culminated in a ruling in favor of the condominium association.  The ruling was based on the merger doctrine, which generally states that any guarantee to be granted in a real estate transaction must be stated in the deed to the subject property.  As applied to the instant matter, Plaintiff was considered not to have any ownership rights over the parking spaces as they were not memorialized in the deed to the property.

When the initial real estate transaction took place, Plaintiff was represented by Defendant, a real estate law firm.  Plaintiff believed that its loss in the litigation against the condominium association, and the resulting loss of the 35 parking spaces, was a direct result of the legal malpractice of Defendant in failing to take into consideration the merger doctrine, and by failing to include language regarding the parking spaces in the deed to the property at issue.  About a year after the conclusion of the litigation against the condominium association, and about six years after the association first presented the issues regarding the deed, and its lack of language dealing with the parking spaces to Plaintiff, the company brought suit against Defendant law firm, claiming it committed legal malpractice.

Defendant ultimately filed a motion for summary judgement, claiming that Plaintiff brought suit far beyond the two year statute of limitations.  The trial court ruled in favor of Defendant.  On appeal, the Superior Court affirmed the trial court’s ruling, and the Supreme Court issued a per curiam order affirming the Superior Court’s ruling.  It is the Superior Court’s opinion that is the subject of this article.

While the statue of limitation in a legal malpractice claim is two years, that period can be extended via the equitable discovery rule which sates that the two years is initiated not at the occurrence of the malpractice, but when it was, or should have been, discovered.  The Court ruled that Plaintiff discovered, or should have discovered, that there may have been legal malpractice six years before it initiated suit against Defendant (or four years longer than the two year statute allows) when the dispute with the condominium association first arose.

Plaintiff then argued that the Court should apply the “continuous representation rule” which states that the limitations period would not begin to run until plaintiff terminated Defendant’s services.  The Court was unmoved by Plaintiff’s argument to extend the legal malpractice statute of limitations based on the continuous representation rule.  The Court noted that the rule was not the law of Pennsylvania (although it is in other jurisdictions) and it is not the place of the Superior Court to adopt new rules without authority to do so.

Plaintiff next argued that the limitations period should be extended through estoppel, asserting that the “special relationship” between a lawyer and his client lulled Plaintiff into a false sense of security, through fraud, or deception, or concealment, to trust Defendant beyond when it would have been prudent to do so.  This sort of argument has traction among physicians and patients and Plaintiff attempted here to apply it to attorneys and clients.  The Court rejected this argument as well, as it found Defendant was completely candid with Plaintiff regarding the claims made by the condominium association, including providing Plaintiff with the first allegation of their own malpractice nearly six years prior to Plaintiff’s bringing suit.

Finally, Plaintiff argued that the question of precisely when it discovered the malpractice is a question of fact that should have been decided by a jury, not via a motion for summary judgement.  The Court rejected this argument as well, ruling that the facts in this matter were abundantly clear as to when Plaintiff discovered the malpractice.

The statute of limitations is critical to be aware of when considering bringing suit.  Although the Court made a variety of rulings, as described above, it is significant and useful in that it lays out some guidelines as to how to apply the various means to extend the statute of limitations and notably refuses to adopt and apply the continuous representation rule.

Originally published in Upon Further Review on September 24, 2015 and can be seen here.

US Supreme Court Weighs in on Threats Over Social Media

The new reality of social interaction includes the popular, and seemingly always proliferating, social media websites like Facebook and Twitter.  Considering the increasing ubiquity of social media, it was only a matter of time before the United States Supreme Court would weigh in on its use, which it had opportunity to do in the matter of Anthony Douglas Elonis v. United States, 135 S.Ct. 2001 (2015).

 

In the Elonis matter, the petitioner Anthony Douglas Elonis’s wife left him in May 2010, taking their children with her.  Following their separation, Mr. Elonis began listening to “violent music” and posting so-called “rap lyrics” to his Facebook page.  Eventually he changed his name on his Facebook profile to “Tone Dougie,” a rap-style nom de plume, in order to create an “on-line persona.”  His rap lyrics contained rather violent and graphic language but did contain a disclaimer that his lyrics were fictions with no intentional resemblance to real persons.  He also said on Facebook that he writes these lyrics, and other such posts, as a form of therapy for himself to deal with the pain of the breakup of his family.

 

Unfortunately for Mr. Elonis, people who viewed his Facebook posts did not seem to appreciate his therapeutic efforts.  Evidently, after the Halloween following his separation, Mr. Elonis posted a photograph of himself from a Halloween event at his place of employ holding a toy knife to his co-worker’s throat, accompanied by a caption reading “I wish.”  Mr. Elonis was fired by his employer for this post due to its violent and threatening nature regarding his co-worker.

 

Mr. Elonis responded to his termination from employment at an amusement park with the following Facebook post: “Moles! Didn’t I tell y’all I had several? Y’all sayin’ I had access to keys for all the f***in’ gates. That I have sinister plans for all my friends and must have taken home a couple. Y’all think it’s too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I’m still the main attraction. Whoever thought the Halloween Haunt could be so f***in’ scary?””  This post formed the basis for the first count of his criminal indictment for threatening park patrons and employees.

 

In addition to the above, Mr. Elonis also posted crude, demeaning, and violent material regarding his ex-wife, including a long post adapting a comedian’s sketch about how to avoid overtly saying one wishes to kill the president to a post of similar content about killing one’s wife.  In the post he included accurate details about his ex-wife’s home and rhetorically asked whether the reader is willing to “go to jail for [one’s] Constitutional rights.”

 

Upon seeing the above-mentioned post, his ex-wife began to fear for her life and secured a protection order against Mr. Elonis.  In response Mr. Elonis posted on Facebook what appeared to be lyrics or poetry contemplating whether a protection order could stop a bullet and suggested blowing up a police department with a bomb.  This post formed the basis of two more counts of his criminal indictment.  The fourth count of Mr. Elonis’s criminal indictment flowed from a subsequent Facebook post regarding potentially mass killing a local kindergarten class.  After the FBI investigated the aforesaid post, Mr. Elonis followed it up with what formed the basis of the fifth count of his criminal indictment, namely a post threatening the life of FBI agents (though none by name).

 

Mr. Elonis was eventually indicted for making threats to injure patrons and employees of the park, his estranged wife, police officers, a kindergarten class, and an FBI agent.  All of these threats were in violation of 18 U.S.C. Section 875(c) which states “[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”

 

Mr. Elonis filed a motion to dismiss the indictment on the basis that none of the charges against him contained any allegation that he intended to threaten anyone.  The District Court (his matter originated in the Eastern District of Pennsylvania) denied the motion.  At the trial for the charges Mr. Elonis testified that his posts were emulating rap lyrics (especially those of Eminem who also penned lyrics about killing his wife) and, therefore, were made without any intent to threaten anyone.  The prosecution presented witnesses who testified that they felt threatened and in fear of injury.  At the conclusion of the trial, Mr. Elonis’ requested that the jury be instructed that in order for him to be convicted the prosecution must prove he had an intention to threaten.  His request was denied.  Ultimately, Mr. Elonis was sentenced to three years and eight months’ incarceration and three years’ suspended release.  Mr. Elonis then appealed his conviction to the Court of Appeals of the Third Circuit which upheld the conviction and ruled that the intent suggested by Mr. Elonis was not required by the law.  Mr. Elonis then appealed to the United States Supreme Court, and it is that Court’s decision that is the subject of this article.

 

Mr. Elonis argued to the Supreme Court that the term “threat” necessarily implies an intention to inflict harm.  Unpersuaded, the Court pointed out that the definition of “threat” proffered by Mr. Elonis speaks to the message conveyed by the threatening statement and not the mental state of the speaker.  The government noted that the other crimes in the statutes neighboring 18 U.S.C. Section 875(c) all explicitly include a mental state in their terms which suggests that the legislature intentionally left such a provision out of 18 U.S.C. Section 875(c) and, therefore, no mental state is required for conviction under this section.  The Court was unpersuaded by this argument as well indicating that all that could be concluded is that Congress laid out a broad class of crimes but simply did not include what mental state, if any, is required for conviction.  Based on the above, the Court observed that neither party sufficiently identified any indication of any particular mental state required by 18 U.S.C. Section 875(c).  Despite this, the Court recognized that any crime must carry with it some conscious action (e.g.: mens rea) and that the mere omission of a mental state from 18 U.S.C. Section 875(c) does not mean none exists.

 

After a review of the applicable case law, the Court concluded that when a criminal statute is silent on mental state, the only mens rea that can be read into it is only that which is enough to separate wrongful conduct from innocent conduct as applied to each element of the crime.  Furthermore, the Court ruled that the mental state requirement, relative to Mr. Elonis’ case, must apply to whether the communication itself contains an actual threat.  By contrast, Mr. Elonis’ conviction was based solely upon how his posts would be perceived by a reasonable person.  As a result, the Court rejected the government’s argument for a mental state closer to negligence (i.e.: “reasonable person”) as well as Mr. Elonis’ argument from ignorance asserting that he could not be convicted unless it was shown he knew the posts could be characterized as threatening.

 

Ultimately the Court reversed Mr. Elonis’ conviction.  The Court held that the jury instructions mentioned above were insufficient.  There must be something more than the prosecution merely proving that a reasonable person could regard Mr. Elonis’ posts as threats.  Instead, there must be an instruction indicating that a mental state for Mr. Elonis is necessary for conviction.  The Court was confident that the mental state requirement would be satisfied if it could be shown that Mr. Elonis knew that his posts could be understood to be a threat and/or were posted to be threatening.  Although the Court rejected a negligence standard, as noted above, the Court declined to rule whether a recklessness standard would be sufficient to convict for the crime at issue herein as that issue was not raised by the parties until oral argument and briefly at that.  The Court was reluctant to be the first tribunal to rule on the issue and, instead, opted to allow the lower courts to initially look at the issue.  Consequently, the Court also remanded Mr. Elonis’ case for further proceedings per the Court’s ruling.

Originally published on August 25, 2015 in The Legal Intelligencer and can be seen here.

Debt Acknowledgment: Going Beyond Limitations

Anyone considering bringing a lawsuit needs to be aware of the relevant statute of limitations applicable to one’s case.  A statute of limitations establishes a hard deadline by which a particular suit must be brought, which, if missed, bars the potential plaintiff from bring it.

 

Generally speaking, in the context of a debt collection contract claim, the applicable statute of limitations sets a four (4) year deadline to bring suit after a breach of contract.  This limitations period is set by 42 Pa.C.S.A. Section 5525(a)(1).  A breach of contract occurs upon non-performance of a contractual duty, which, in this case, would be the non-payment of a debt.

 

Although the four-year statute of limitations identified above serves as a hard deadline in most debt collection cases, there is an important exception to this statute which serves to extend the time to bring suit and/or serve to toll the statute of limitations: the so-called “acknowledgement doctrine.”

 

Pennsylvania law has well established the acknowledgement doctrine.  The doctrine states that “[a] clear, distinct and unequivocal acknowledgement of a debt as an existing obligation, such as is consistent with a promise to pay, is sufficient to toll the statute.”  In Re David Cutler Industries, Ltd., 502 B.R. 58 (2013)

 

The acknowledgement doctrine in practice serves to restart the running of the applicable statute of limitations cited above, which would begin upon a reasonable elapse of time from the date of acknowledgement.

 

For example, if the statute of limitations for the failure to pay a debt is set to expire on August 1, 2015, a debtor’s acknowledging the debt on July 25, 2015 would serve to toll the statute of limitations and reset the hard deadline set by the statute to four years after a reasonable elapse of time from July 25, 2015.  A debt customarily must be paid within thirty days of when it comes due; therefore, the new statute of limitations in the example above would be four years from August 25, 2015.

 

When litigating a breach of contract claim, particularly a debt collection matter, and a statute of limitations deadline is approaching, or has passed, practitioners would be wise to explore the possibility of trying to have the debtor acknowledged the debt at some point.  Doing so could serve to save the viability of a case and go a long way to ensuring the debt owed is paid.

 

For more information on the issues addressed above, be sure to also review these cases: Colonial Assur. Co. v. Mercantile and General Reinsurance Co. Ltd., 297 F.Supp.2d 764 (2003); Huntingdon Fin. Corp. v. Newtown Artesian Water Co., 442 Pa.Super. 406 (1995); Camenisch v. Allen, 158 Pa.Super. 174 (1945); In Re Maniatakis’ Estate, 258 Pa. 11 (1917).

Originally published in The Legal Intelligencer Blog on July 21, 2015 and can be seen here.

Court “Comments” on Social Media Discovery

With the advent of social media, and its increasing popularity and pervasiveness, the law has been struggling to keep pace. As cases find their way to court, decisions have been entered which are making a path to guide the cultural changes which the extensive usage of social media has caused. One such case is the recent matter of McMillen, Sr. v. Hummingbird Speedway, Inc. et al., Court of Common Pleas of Jefferson County, Pennsylvania, Case No.: 113-2010 CD. In McMillen, both the Plaintiff and Defendant were race car drivers. Defendant allegedly rear ended Plaintiff’s vehicle during a cool down lap following a stock car race and Plaintiff was seriously injured as a result. As part of the discovery process from the resulting litigation from the aforesaid injury, Defendant requested the Plaintiff’s user name and password for his Facebook and MySpace accounts. The Plaintiff objected to the aforesaid discovery requests on the basis that his user name and password were privileged and, therefore, confidential. Defendant followed up his discovery requests described above by reviewing the public portions of Plaintiff’s Facebook and MySpace pages and learning that the Plaintiff commented about a fishing trip and attending the Daytona 500 race after the crash described above. Defendant, of course, interpreted the above to reflect that Plaintiff’s injuries were not quite as grievous as he claimed, due to Plaintiff’s apparent ability to engage in the activities described on social media. Defendant argued that if the public portions of his social media accounts included such information, the private portions may be even more revelatory. In analyzing the case, the Court surveyed relevant Pennsylvania discovery law. The Court reinforced that the overarching purpose of discovery is to help the parties, and the courts, discern the truth of a given situation. As a result, the Court noted that nearly any relevant materials are discoverable and further pointed out that not only does the law generally disapprove of claims of confidentially and/or privilege, there is currently no “social network site privilege,” and Plaintiff cited to no authority, neither binding nor persuasive, as support for such a privilege. Indeed, quite the opposite, the Court found authority to suggest that, especially in the “less public area of discovery” (e.g.: someone’s private social media accounts), even greater latitude for discovery may be necessary in order to ensure all relevant and admissible evidence is secured. According to current Pennsylvania law, a privilege ought not be recognized unless the Plaintiff can show: (1) the communications which are claimed to be confidential were expected not to be disclosed; (2) the confidentiality is necessary to maintain the relationship between the parties involved in the communication; (3) there is community agreement that such confidentiality should be fostered; and, (4) the injury sustained to the relationship due to the disclosure is outweighed by the benefit of disclosure to the litigation.

In applying the above law to the social media sites at issue in the case, the Court opined that it is unrealistic to expect posts on social media sites to be confidential. In support of this assertion, the Court went further and reviewed the privacy policies for both Facebook and MySpace and demonstrated that both allow for third parties to see the information posted (who could share it with others) and all posts are seen by the sites’ administrators. The Court concluded that, based on the above, there is no reasonable expectation that a social media website user should have any expectation of confidentiality, let alone court enforceable privilege. As a result, the Court could not identify how Plaintiff’s claim for confidentiality satisfied the four factors listed above. Indeed, the Court could not say that any claim for confidentiality in this matter outweighed the benefit of discerning the truth in order to allow for the correct disposition of the litigation, for the potential for highly relevant which could impact the ultimate result of the case is significant. Based on the above, the Court ruled that Plaintiff should submit to Defendant’s discovery requests and that when there is indication that a social media site could contain relevant information, access to those sites should be freely granted.

Originally published on June 16, 2015 in Upon Further Review and can be seen here.

Court’s Stern Order Ships Philadelphia’s Fire Boat Case Back to Port

In the recent matter of City of Philadelphia v. Borough of Westville, 93 A.3d 530 (Pa.Cmwlth. 2014) the Commonwealth Court of Pennsylvania weighed in on the application of jurisdictional standards and the Pennsylvania Long Arm Statute on a government entity like the City of Philadelphia.

In 2010 the City’s Fire Department responded to a fire at an oil refinery on the New Jersey side of the Delaware River. In order to fight the fire, the Fire Department deployed a fire boat which, while travelling to the fire, caused an especially large wake in the water which damaged another fire boat that was deployed by the Fire Department of the Borough of Westfield, New Jersey.

In order to be compensated for the damage to its fire boat, Westfield submitted an insurance claim against the Philadelphia Fire Department’s insurance carrier. In turn, the insurance carrier pursued the City via subrogation for the insurance funds outlaid to Westfield. In response to the subrogation attempt, the City filed for a declaratory judgment in the Philadelphia Court of Common Pleas against Westfield, seeking to absolve it of any liability for the damage to the boat and seeking to enjoin Westfield from seeking property damages from the City on the basis of government immunity. Westfield filed preliminary objections to the City’s efforts in the Philadelphia Court of Common Pleas on the basis that a court in Pennsylvania lacks personal jurisdiction over Westfield, which the Court promptly overruled. Subsequently the City filed a motion for judgment on the pleadings against Westfield which was granted by the Court on the basis that the City was immune from such a subrogation matter. Westfield filed an appeal to the Commonwealth Court of Pennsylvania from the Court of Common Pleas’ overruling of its preliminary objections, and it is that appeal that is the subject of this article.

In considering the appeal, the Commonwealth Court reviewed the criteria for meeting Pennsylvania jurisdictional standards. The first criterion for jurisdiction is for a party (namely Westfield) to have minimum contacts with the forum in which the court where the action was filed is located. The court may exercise jurisdiction over a non-resident, such as a corporate entity like Westfield, if it engages in continuous and systematic business in the forum. In addition, Pennsylvania’s Long Arm statute permits jurisdiction over a non-resident if the non-resident party acts directly, or through an agent, to conduct business in the forum.

The Commonwealth Court ruled that the City, in this matter, failed to establish that Pennsylvania has jurisdiction over Westfield. No evidence was presented to the Court indicating that Westfield’s fire boat ever crossed into Pennsylvania waters. The City argued that Westfield assisted with a Pennsylvania fire in 2010, attended a handful of meetings between 2008 and 2010, and could have had a boat wander into Pennsylvania waters from time to time. The Court, upon review, did not view these “contacts” remotely sufficient to trigger Pennsylvania’s jurisdiction over Westfield.

Similarly, the Court ruled that Westfield’s insurance company’s contacts with Pennsylvania were neither continuous nor substantial. Indeed, the Court noted that the insurance company’s principal place of business is in New Jersey, conducts all of its business there, and owns no real estate or uses any office space in Pennsylvania. As a result, the Court did not think jurisdiction could be extended through the insurance company’s contacts either. In response, the City pointed out that the insurance company has communicated with people in Pennsylvania through telephone calls and letters and its claim administrator has Pennsylvania offices. Despite these contacts presented by the City, the Court remained unmoved in its determination that jurisdiction does not apply.

Based on the above, the Court reversed the lower court’s overruling of Westfield’s preliminary objections, vacated the Order granting the City’s motion for judgment on the pleadings, and dismissed the City’s matter in its entirety for lack of jurisdiction.

As this matter explicitly highlights, no matter who the parties are or whether the underlying matter is simple or complex, practitioners must be sure not to overlook the most basic of legal issues, like jurisdiction, when bringing a case.

Originally published in Upon Further Review on February 18, 2015 and can be found here.