September 21, 2011 – Congratulations to Nick Foley, winner of the Boys & Girls Club National Youth of the Year Award. Earlier this month, Burns White partnered with the Sarah Heinz House A Boys & Girls Club, in Pittsburgh, PA for the firm’s Third Annual Wine Tasting Event. Nick Foley was a guest speaker at the event sharing his tremendous story of overcoming adversity in his life.
Read the article here
By: T.H. Lyda, Esq. and Jeffery D. Roberts, Esq.
September 7, 2011 – The Pennsylvania Superior Court issued a decision that reverberated through the natural gas industry by putting long standing precedent, as well as thousands of gas leases, in doubt. The court issued its decision in Butler v. Charles Powers Estate. The case involves a deed recorded in 1881 in which the grantor, Charles Powers, conveyed 244 acres of land in Apolacon Township, but reserved “one half the minerals and Petroleum Oils” for himself and his heirs. The Butlers, who own the land, filed a complaint to quiet title in the natural gas naming the defendants as Charles Powers’ estate, and the estate’s heirs and assigns. The heirs of Mr. Powers filed for a declaratory judgment, arguing that they owned the natural gas by virtue of the reservation of minerals in the deed. The Butlers responded by filing preliminary objections, claiming that reservation of minerals did not include the natural gas. The Butlers relied on the “Dunham Rule,” which developed from the Pennsylvania Supreme Court’s opinion in Dunam v. Kirkpatrick, 101 Pa. 36 (1882) and can be stated as:
[I]f, in connection with a conveyance of land, there is a reservation or an exception of “minerals” without any specific mention of natural gas or oil, a presumption, rebuttable in nature, arises that the word “minerals” was not intended by the parties to include natural gas or oil.
Highland v. Commonwealth, 400 Pa. 261, 276-77 (1960). The trial court agreed with the Butlers and granted their preliminary objections, holding that the Dunham Rule controlled the issue because the reservation did not specifically include natural gas. The heirs of Charles Powers appealed to the Superior Court.
On appeal, the heirs of Charles Powers argued that: 1) Marcellus shale is a mineral consistent with the reservation of rights in the deed; 2) Marcellus gas is different from free flowing wild conventional gas; and 3) similar to coal bed methane gas where the owner of the coal owns the gas, the owner of the shale owns the Marcellus gas. The Superior Court found merit in these arguments, and reversed the trial court’s decision and remanded the case for further proceedings to determine whether: 1) Marcellus shale constitutes a “mineral”; 2) shale gas constitutes the type of natural gas contemplated by the Dunham Rule; and 3) Marcellus shale is similar to coal to the extent that whoever owns the shale, owns the shale gas.
If it is ultimately decided that Marcellus shale constitutes a mineral, dozens of energy companies could lose the right to drill for shale gas.
Pittsburgh, September 6, 2011 – Burns White attorney Christina E. Horton authors an article for The Legal Intelligencer.
Click here to read the article.
Pittsburgh, August 31, 2011 — Six Burns White attorneys have been selected for the 18th edition of Best Lawyers in America® for 2012. Pittsburgh-based attorneys honored were Michael W. Burns for Commercial Litigation, Labor and Employment Litigation, Mass Tort/Class Action Litigation, Media Law, Personal Injury Litigation and Railroad Law; David A. Damico for Railroad Law; Daniel B. Donahoe for Railroad Law; T.H. Lyda for Railroad Law and David B. White for Commercial Litigation, Legal Malpractice Law, Medical Malpractice Law, Personal Injury Litigation and Product Liability Litigation.
From the firm’s Wheeling, W. Va., office, Patrick S. Casey was recognized for Healthcare Law, Medical Malpractice Law, Personal Injury Litigation and Professional Malpractice Law.
This marks the 10th consecutive year Mr. Damico has received this honor, followed by Mr. Burns and Mr. White (six consecutive years each) and Mr. Donahoe and Mr. Casey (five consecutive years each).
Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. None of the winners knows when he or she has been nominated or by whom.
Because Best Lawyers is based on an exhaustive peer-review survey in which leading attorneys cast almost four million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel Magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”
Lawyers listed in Best Lawyers are voted into practice areas entirely as a result of the votes they receive from their peers. The subspecialties listed after their names are based on information from a variety of sources.
Pittsburgh, August 18, 2011 – Burns White Employment Law Practice Group Co-Chair Dean F. Falavolito has been selected to a three-year term on the Allegheny County Bar Association’s Labor and Employment Law Section Council.
According to the ACBA’s website, “This Section shall study the field of employment law, primarily through the development and sponsorship of educational programs directed to the members of the Section, to the employees, unions, employers, and also academic institutions and government agencies that are the clients and employers of Section members, and to other members of the bar association as well as to the public generally. The principal subdisciplines of employment law which shall be studied include labor-management relations, equal employment opportunity, occupational safety and health, and the rights of unrepresented employees. The Section will concentrate its efforts in the study of the relative rights and responsibilities of management, union, and employees (including unrepresented as well as represented employees). The Section will endeavor to serve all of the audiences which make up the field of employment law, and to accommodate both the entrepreneurial rights of management to manage and direct the workforce, and the rights of employees, and unions and their members to be treated fairly. The Section will meet and confer upon such occasions and with such frequency is necessary in order to generate cooperation in promoting industrial progress, industrial peace, justice, human welfare, and the supremacy of law.”
Pittsburgh, Aug. 1, 2011 – Congratulations to Medicare Compliance Practice Group Member Michelle A. Allan, who was selected today for The Legal Intelligencer’s 2011 edition of “Lawyers on the Fast Track.”
With the help of the editorial staff of The Legal Intelligencer, a group of eight evaluation panelists from across the commonwealth selected 27 Pennsylvania attorneys as what it calls “the future leaders of the state’s legal community.”
Of the five attorneys selected from Pittsburgh, Michelle was the only woman.
Each nominee had to be under the age of 40. The panelists also paid particular attention to four areas: development of the law, advocacy, community contributions and service to the bar.
Michelle is the fourth Burns White attorney to be selected as a “Lawyer on the Fast Track” in the 10-year history of the award, joining T.H. Lyda (2007), William J. Mundy (2002) and Lyle Washowich (2010).
Full profiles of this year’s honorees will be included in a supplement published in The Legal Intelligencer on Tuesday, Sept. 27. The winners will also be honored at a dinner at the Crystal Tea Room in Philadelphia on Thursday, Nov. 3.
Please click here for more information.
Please click here to learn more about Michelle Allan.
Harrisburg, Pa., July 19, 2011 – In a significant published decision, the Commonwealth Court of Pennsylvania ruled that E-ZPass electronic toll information of Pennsylvania Turnpike Commission employees is not subject to disclosure pursuant to the state’s Right-to-Know Law (RTKL).
The Turnpike Commission was represented before the Court by Burns White Appellate Practice Group Chair Ira Podheiser.
In the fall of 2010, The Harrisburg Patriot-News received a tip that Pennsylvania Turnpike Commission employees were allegedly taking advantage of the E-ZPass system, thereby allowing Turnpike employees free access. Patriot-News Capitol Bureau Chief Jan Murphy filed a request under the RTKL to the Pennsylvania Turnpike Commission. Specifically, as part of an investigation into how much state revenue would be lost as a result of Turnpike employee usage, The Patriot-News wanted names and positions all turnpike employees who had E-ZPasses, as well as the times and dates of their travel.
In October of 2010, the Turnpike Commission denied this request, arguing that these records were exempt from public disclosure under a specific section of the Pennsylvania Transportation Act, which stipulates that the electronic toll collection information is not public record.
Arguing that Turnpike Commission employees were not “account holders,” The Patriot-News filed an appeal with the Office of Open Records (OOR), whose official mission is to “enforce the state’s Right-to-Know Law and to serve as a resource for citizens, public officials and members of the media in obtaining public records of their government.”
The Turnpike Commission argued to the OOR that the employees were in fact “account holders,” expressly because the procedures to apply and obtain E-ZPasses were the same for both employees and private citizens. In addition, because no applicant needs to include employer or employment information on the form, E-ZPass holders are exempt from disclosing that information to a third-party, pursuant to a RTKL request.
In December of 2010, the OOR did deny the request for individual names, agreeing that employees are “account holders” under the aforementioned provision of the Pennsylvania Transportation Act. However, the OOR concluded that the Commission failed to present sufficient evidence that the job titles and usage of the turnpike by employees were exempt under that section. Therefore, the Commission would be required to turn over redacted records without names, but with job titles and dates and times of turnpike usage.
Representing the Turnpike Commission on Appeal before the Commonwealth Court of Pennsylvania on June 6, 2011, Burns White’s Ira Podheiser argued that once it was established that turnpike employees are “account holders” who are pursuant to the Transportation Act like all other private applicants for an E-ZPass, then all additional information collected is exempt from disclosure.
On July 19, the OOR’s decision to deny requests for the release of individual names was affirmed by the Court, while the OOR’s determination to provide usage records and employee position information was reversed.
To quote from portions of the Court’s decision directly, “ . . . (Individual) employees are required to complete private account applications in their individual names . . . This application does not require an applicant to disclose employment information.”
The records sought by The Patriot-News were therefore determined by the Court to be exempt from public disclosure. The case is significant because it acknowledges and applies limits on the scope of the RTKL, which was substantially revised in 2009 to make it easier for citizens to gain access to public records.
Click here to read the full decision.
Click here to learn more about Ira Podheiser.
July 15, 2011 – This week, The United States Court of Appeals for the Third Circuit affirmed a District Court decision in the case of Covell v. Bell Sports, Inc. The issue on appeal related specifically to evidence involving industry standards. The case was a products liability action arising from an alleged defect in the defendant’s (Bell Sports) bicycle helmets.
The Third Circuit upheld the judgment of the District Court in favor of defendant, ruling that the lower Court properly admitted expert testimony and correctly charged the jury pursuant to sections 1 and 2 of the Third Restatement of Torts rather than section 402A of the Second Restatement of Torts.
According to the Third Circuit Court’s decision, “Section 402A makes sellers liable for harm caused to consumers by unreasonably dangerous products, even if the seller exercised reasonable care. Section 402A thus creates a strict liability regime by insulating products liability cases from negligence concepts . . .
The American Law Institute responded to the core conflict in section 402A when it published the Restatement (Third) of Torts. Sections 1 and 2 of the Restatement (Third) of Torts abandon entirely the negligence-versus-strict-liability distinction that has caused so much trouble in Pennsylvania . . .
Section 1 thus makes sellers liable only for the sale of products that are ‘defective,’ and section 2 provides that a product may qualify as ‘defective’ if it meets one of three sets of criteria . . .
Applying this standard, we conclude that evidence of Bell’s compliance with the CPSC (United States Consumer Product Safety Commission’s Safety Standard for bicycle helmets) Standard was relevant to the jury’s inquiry because it went to at least two facts of consequence under section 2 of the Restatement (Third) of Torts, section 2. First, the CPSC Standard sets forth detailed rules for impact resistance and testing, and for labels and warning—both on the helmet and its sales packaging . . . Second, evidence that Bell complied with the CPSC Standard makes it ‘less probable,’ Rule 401, that ‘the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings’ . . .
Our conclusion in this respect—i.e., that industry standards and government regulations are relevant to facts of consequence in this case—is also in line with the Commentary to section 2 of the Restatement (Third) of Torts.”
Please click here to review the entire decision.
Pittsburgh, July 14, 2011 – Burns White LLC Transportation Practice Group Co-Chair T.H. Lyda and Transportation Practice Group Partner Edwin Palmer authored the cover story in the May/June edition of the NACD (National Association of Chemical Distributors) Chemical Distributor magazine.
Please click here to read the entire article.
Click here to learn more about T.H. Lyda.
Click here to learn more about Edwin Palmer.
Pittsburgh, July 13, 2011 – Burns White LLC congratulates Special Ethics Counsel Forest Jackson “Jack” Bowman on his upcoming West Virginia Bar Association Award of Merit, which will be presented during the WVBA’s Annual Meeting held Aug. 11-13, 2011, at The Greenbrier.
The award recognizes “a lawyer who has achieved a long and distinguished record of service to the legal profession in West Virginia and deserves recognition” or “A member of the judiciary who has achieved a long and distinguished record of service as a Family Court Judge or Circuit Court Judge in West Virginia; and/or a Justice of the Supreme Court of Appeals of West Virginia; and/or a U.S. District Judge in either the Northern or Southern District of West Virginia; and/or a Judge of the U.S. Court of Appeals for the Fourth Circuit, having resided in West Virginia at the time of appointment.”
In additional to numerous other roles within and obligations to the legal community at-large, Mr. Bowman has served in his capacity as Special Ethics Counsel to Burns White since 1998.
Please click here to learn more about Jack.
