Posts Tagged ‘Philadelphia’

SCRANTON – A federal judge has denied a motion filed by glass manufacturer Schott North America that sought the dismissal of a gender discrimination suit filed by six women who were laid off in 2004.
U.S. District Judge James M. Munley on Monday said the women had presented sufficient evidence to support their claims that a rating system the company employed in determining which workers would keep their jobs was biased in favor of males.

The suit, filed in 2006, alleges the rating system placed an improper amount of weight on skills utilized in jobs that were primarily held by men, compared to jobs that were held by women. That allowed men to score higher, resulting in more men than women retaining their jobs after a layoff at the company’s Duryea plant in October 2004, the suit says.

According to the suit:

Production workers at the plant were divided into two sections: “hot end” workers, who operated machines that produced glass, and “cold end” workers, who inspected the glass for defects and provided other finishing services. More than 95 percent of the hot end jobs were held by males, while roughly 76 percent of cold end jobs were held by females.

In 2004, Schott decided to cease production of a certain type of glass at the Duryea plant. That led to a layoff and the creation of a new position that combined the duties of hot end and cold end jobs. To determine which workers would get the new positions, the company devised a rating system that assigned a numeric score to certain job skills.

The lawsuit alleged that system was heavily weighted in favor of skills developed by hot end workers, even though the new position required a combination of skills used in both positions.

According to court documents, one-third of the 73 workers who were evaluated were female, but only two of the 36 positions that were created were awarded to women.

Schott claimed the hot end tasks were more difficult, thus it was proper to give those skills more weight. The plaintiffs maintained the cold end jobs were equally difficult. They alleged the matrix was a ruse designed to ensure more men than women would get the jobs.

In a 35-page ruling, Munley said the women had presented evidence that the rating system did not rate skills required for the job, but instead valued the skills that men were more likely to have than women.
Munley noted testimony by females who said there was a long-standing, hostile atmosphere toward women in the plant. Some had testified they were subjected to sexual harassment and were often belittled by male counterparts.

The suit was filed by the Equal Opportunity Commission on behalf of six women, who are represented privately by attorney Peter Winebrake of Philadelphia and Sean McDonough of Moosic.

Officials from Schott did not immediately return a phone message left at the Duryea plant late Monday afternoon

The Pennsylvania Commonwealth Court has ruled that a claimant was entitled to benefits, despite fact that he was injured while violating a positive work order prohibiting horseplay. In Sysco Food Services of Philadelphia v. W.C.A.B. (Sebastiano), the facts indicated that the claimant was employed as an order selector. On the date of injury he was retrieving some shrink wrap. when he was grabbed from behind by a co-worker who shouted “Let’s get him.” Anothe co-worker grabbed the claimant from the front, hugging his arms so he could not move, and attempted to trip him. This individual pulled claimant across the floor. Claimant asked him to stop. At that time, someone came by on a pallet jack, beeped the horn at them, and told them to get out of the way. Claimant asserted that he was let go and as he was turning around to walk away he felt someone collide into him. As he fell to the ground, he looked up and a co-worker was on top of him. He heard a loud crack as he was falling. Claimant was taken to the hospital. Claimant acknowledged that horseplay was prohibited by his employer and that it is a punishable offense. Claimant’s contentionwas that he was not a participant in the horseplay, but rather a victim of it.
The claimant, Sebastiano, filed a claim for workers’ compensation benefits. In reponse, the employer raised the affirmative defense that claimant’s actions violated a positive work order and, therefore, his injuries were sustained outside the course and scope of his employment. To properly sustain this defense, the employer must prove: (1) that the injury was in fact caused by the violation of the work rule, (2) that the employee actually knew of the order or rule, and (3) that the rule implicated an activity not connected with the employee’s work duties.
The Commonwealth Court ruled that the claimant was entitled to benefits and granted claimant’s petition. The Court reasoned that, despite fact that the claimant was injured while violating a positive work order prohibiting horseplay, claimant was the victim of horseplay and was not an active participant in it. As the claimant did not choose to engage in the horseplay, it could not be said that he violated the rules of his employer. Further, the Court noted other factors supporting a compensable claim including the fact that the claimant was in an area he was required to be at the time he sustained his injuries, the incident in question was mere horseplay, and that there was joking around with no intent to harm or injure.

If you have been injured at work and have questions about your claim, please call me for a free consultation.
Thomas P. Cummings, Esq.
75 Glenmaura National Blvd.
Moosic, PA 18507
[email protected]

A friend of mine sent me an email the other day which set forth information and “facts” involving six “outrageous” lawsuits and trumpeted the need for tort reform. The email stated, in part, as follows:

This is what’s wrong with the world:
1.January, 2000: Kathleen Robertson of Austin, Texas, was awarded $780,000 by a jury after breaking her ankle tripping over a toddler who was running amuck inside a furniture store. The owners of the store were understandably surprised at the verdict, considering the misbehaving tyke was Ms. Robertson’s son.
2. June, 1998: Carl Truman, 19, of Los Angeles won $74,000 and medical expenses when his neighbor ran his hand over with a Honda Accord. Mr. Truman apparently didn’t notice someone was at the wheel of the car whose hubcap he was trying to steal.
3. October, 1998: Terrence Dickson of Bristol, Penn., was exiting a house he finished robbing by way of the garage. He was not able to get the garage door to go up because the automatic door opener was malfunctioning. He couldn’t re-enter the house because the door connecting the house and garage locked when he pulled it shut. The family was on vacation, so Mr. Dickson found himself locked in the garage for eight days. He subsisted on a case of Pepsi he found, and a large bag of dry dog food. Dickson sued the homeowner’s insurance claiming the situation caused him undue mental anguish. The jury agreed to the tune of half a million dollars and change.
4. October, 1999: Jerry Williams of Little Rock, Arkansas, was awarded $14,500 and medical expenses after being bitten on the buttocks by his next door neighbor’s beagle. The beagle was on a chain in its owner’s fenced-in yard, as was Mr. Williams. The award was less than sought after because the jury felt the dog may have been provoked by Mr. Williams who, at the time, was shooting it repeatedly with a pellet gun.
5. May, 2000: A Philadelphia restaurant was ordered to pay Amber Carson of Lancaster, Pennsylvania $113,500 after she slipped on a spilled soft drink and broke her coccyx. The beverage was on the floor because Ms. Carson threw it at her boyfriend 30 seconds earlier during an argument.
6. December, 1997: Kara Walton of Claymont, Delaware, successfully sued the owner of a nightclub in a neighboring city when she fell from the bathroom window to the floor and knocked out her two front teeth. This occurred while Ms. Walton was trying to sneak through the window in the ladies room to avoid paying the $3.50 cover charge. She was awarded $12,000 and dental expenses.
7. December, 2001: In November, 2000, Mr. Grazinski purchased a brand new 32 foot Winnebago motor home. On his first trip home, having joined the freeway, he set the cruise control at 70 mph and calmly left the drivers seat to go into the back and make himself a cup of coffee. Not surprisingly, the Winnie left the freeway, crashed and overturned. Mr. Grazinski sued Winnebago for not advising him in the handbook that he could not actually do this. He was awarded $1,750,000 plus a new Winnebago.

Now I had received several emails like this over the years and the facts and circumstances seemed too far-fetched to merit a response. The message of these emails alludes to the need for tort reform in light of the odious conduct of the plaintiffs and the outrageous jury awards. As a lawyer, you develop a tough skin as the public views the profession as greedy and opportunistic. But this time I decided to search the internet and see if I could find any information on these seven lawsuits referenced in the email. The internet has spurred the mass proliferation of emails which dispense information to thousands of people as emails are forwarded with the click of a button. I thought that the facts of these tort-reform championing emails smacked of urban legend -a type of a modern folklore consisting of stories thought to be factual by those circulating them. Urban legends are not necessarily untrue, but they are often distorted, exaggerated, or sensationalized over time. Often, upon receiving an email with a seemingly improbable premise (alligators living in the Manhattan sewers, “Paul” from the “Wonder Years” is now Marilyn Manson, etc.), I access www.snopes.com, an internet website which debunks or confirms the accuracy of these mass-circulated emails.
Lo and behold, snopes.com has debunked ALL SEVEN OF THE “CASES” IN THE EMAIL AS TOTALLY FALSE!!!! A search of the names of the parties to the lawsuits and the courts involved failed to reflect any such court filings or jury awards.
We live in a world where lawyers are viewed with scorn and discontent. In this climate, such emails meet with a receptive public perception as the current feeling is against large jury awards for bogus claims. But the call for tort reform as championed by big business and the insurance lobby potentially denies those in need of a legal remedy their day in court and declines them their right to be heard. “Caps” on jury awards is also unfair to those who are seriously injured as they may deserve a large award to fairly compensate them for their damages caused by the conduct of another. Big business stands to profit immensely from tort reform and capping jury awards. Capping an award will not deter a large corporation who may be able to afford to pay the damages.
So, the next time you receive a “chain” email that talks about an outrageous jury award, do yourself a favor and research some of the the facts. Remember, don’t believe everything you read..and only half of what you see.

(2/8/07) – The Eastern District Court of Pennsylvania has ruled that a bad faith claim can be brought against an insurer of a business owner who provided the business owner with a homeowner’s policy for a commercial property. The Court ruled that the business owner can bring a breach of contract and bad faith action against the insurer after it denied coverage when the commercial property was damaged by fire.

In Scarpato v. Allstate (1/23/07), the memorandum opinion of the Court indicated that Raymond Scarpato owned seven commercial properties in Philadelphia and sought insurance for them from his insurance agents.  Scarpato advised the agents this real estate was commercial in nature and that although he sometimes slept in the buildings, his home was in New Jersey and insured by another company.  He allowed the agents to determine how these properties would be insured and began making premium payments to the insurance carrier, Allstate.

In August of 2004, Scarpato’s commercial property was damaged by fire.  When he reported a claim to Allstate, the insurer denied coverage because, as he did not reside at the property, it was not covered by the homeowner’s policy that had been issued for it.  Scarpato did not learn the agents had written the property’s policy as homeowner’s until after the fire, apparently because that was the only way Allstate could provide coverage for all of Scarpato’s commercial real estate.

Scarpato then brought suit against Allstate and its agents based on improper cancellation of his policy and the refusal to pay the fire damages, alleging various theories of liability including ibreach of contract, reckless misconduct, and a violation of the Unfair Claims Practices Act.  Allstate filed a instant motion for judgment on the pleadings, seeking dismissal of Scarpato’s breach of contract and bad faith complaints.

The District Court denied the insurer’s motions and found that Scarpato could bring action against Allstate on the contested counts.  It held that, in an instance where an insured advises an agent of the desired coverage and that agent fails to abide by that requested provision, the insurer cannot utilize this mistake in avoidance of the policy and that since Allstate’s motion was not one for summary judgment, it would be premature to hold that Scarpato would not be able to provide clear evidence that Allstate acted in bad faith in later proceedings.

Source: Pennsylvania Trial Lawyer’s Association, News and Case Notes, February 8, 2007

Thomas P. Cummings, Esq.  ([email protected])

David S. Smacchi, Esq. ([email protected]).

On Thursday, November 9, 2006, Pennsylvania Governor Ed Rendell signed legislation into law that brings changes to the Pa. Workers’ Compensation Act.

The changes include the creation of an Uninsured Employers Guaranty Fund, an increase in the minimum amount of compensation a worker can receive, guidelines for the Workers’ Compensation Appeal Board and a code of ethics for its board members.

The Uninsured Employers Guaranty Fund is being created to compensate injured employees in the event their employer fails to maintain workers’ compensation coverage. The minimum amount an injured worker will be eligible to receive for total disability or death will be increased to $100 per week.

The revisions in the new law outline the internal procedures for the appeal board and providing a code of ethics for appeal board members. The legislation will also require workers’ compensation judges to include a mandatory mediation conference as part of the trial schedule.

The Department of Labor will be not be permitted to assign more than 75 percent of petitions from a county to one workers’ compensation judge, nor will counsel fees be allowed to exceed 20 percent of the amount awarded by the judge or agreed to by settlement.

This legislation unanimously passed the Pa. House and State Senate. The provisions relating to resolution hearings and the appeals board are effective immediately and the other provisions become effective in 60 days, according to the Governor’s office.
SOURCE: Philadelphia Business Journal- November 10, 2006

It’s October and time once again for an American tradition- the World Series. Two franchises steeped in tradition, the St. Louis Cardinals and the Detroit Tigers, will battle for Major League Baseball’s championship crown. These two teams last met in the 1968 fall classic with Detroit winning 4 games to 3 behind the pitching of the Tigers’ Mickey Lolich who bested the Cardinals’ Bob Gibson in a 7th game showdown where both pitchers hurled complete games.

World Series tickets are a hot commodity. Attendance at a World Series game, for players and fans alike, can prove to be a once in a lifetime experience. Fans in attendance are sure to savor the moment and pay close attention to the action on the field. But fans should also be aware of batted balls or thrown balls that may travel into the stands. Pennsylvania courts have historically followed the “no duty” rule which bars negligence claims for injuries suffered at an amusement facility as a result of common, frequent and expected risks inherent during the activity in question.

One of the cases set forth by the Pennsylvania courts to trumpet the “no duty” rule was decided in 1968- which is the same year as the last time the Tigers and Cardinals squared off in the World Series. In IERVOLINO v. PITTSBURGH ATHLETIC CO., the Pennsylvania Superior Court held that a spectator struck by foul ball while attending a game in defendant’s baseball park assumed risks incident to the game, and the risk of being struck by a foul ball hit during the regular play of the game was one of those risks.

More recently, in 2005, the Superior Court has buttressed the applicability of the “no duty” rule in the case of LOUGHRAN v. THE PHILADELPHIA PHILLIES and MARLON BYRD. Loughran was injured when the Philadelphia centerfielder, Marlon Byrd, after catching a ball for the last out, threw the ball into the stands. Loughran brought a negligence action against centerfielder and the Phillies. The case was dismissed with the Court ruling that the injuries received by Loughran constituted an inherent risk of the game, and thus, under the “no duty” rule, neither the centerfielder nor the team for which he played was responsible for the spectator’s injuries. The Court further noted that Loughran failed to establish that Byrd or the Phillies deviated from the common and expected practices of the game of baseball or acted in a manner which would take them out of the purview of the “no duty” rule.
So, if you are fortunate enough to score a seat for the World Series, or any other baseball game for that matter, sit back, relax and follow the words of former Mets’ great Chico Escuela – “keep your eye on the ball”.
Thomas P. Cummings, Esq.

The Pennsylvania Superior Court has held that a Five-year Statute of Limitations applies when charges are filed against an employer who fails to secure a policy for Workers’ Compensation insurance. The Court noted that the customary Two-year period of Limitations would impair the “Commonwealth’s ability to prosecute offenses” and that criminal charges can stand as long as they are filed within five years of the alleged infraction.

In reaching this decision, the Court reversed a trial court’s ruling that had dismissed the charges for being filed after a two-year statute of limitations had expired.

According to the opinion in Commonwealth of Pennsylvania v. Corban Corporation (decided 10/4/06), the injured worker, Elmer Kennedy, suffered serious burns while working as a hard laborer for Corban in December 2000. At the time of the injury, Corban did not have Workers’ Compensations Insurance due to its failure to pay premiums, a fact verified by Corban’s insurance agent. After Kennedy’s workers’ compensation claim was denied by the insurance company for lack of coverage, the Lehigh County Insurance Fraud Task Force undertook an investigation. In September 2004, the Task Force filed a criminal complaint asserting seven counts of third-degree felony charges against Corban. Corban filed a motion requesting dismissal of these complaints on the grounds that the two-year statute of limitations set forth in 42 Pa.C.S.A. § 5552 had expired in September 2002, prior to the Commonwealth’s complaint.

The Northhampton County Court of Common Pleas sided with Corban. The Superior Court, however, has reversed, noting that the language in the Workers’ Compensation Act regarding the five-year limitations period (77 P.S. § 1039.12) more accurately applies to Corban’s violations than that outlining the two-year limitations period. The case has now been remanded to the Northampton County Court for further proceedings.

SOURCE: PaTLA 121 South Broad Street, Suite 600 Philadelphia, PA, 19107
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