Category Archives: News

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 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.

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.

Pittsburgh, July 22, 2011 – Burns White LLC Transportation Practice Group Co-Chair David Damico and colleague Nina Gusmar were successful in excluding plaintiffs’ sole expert witness and obtaining summary judgment on behalf of Norfolk Southern Railway in three deleterious substances cases arising out of Elkhart, Ind.

Plaintiffs Aurand, Gilliland and Lipp each brought suit against defendant Norfolk Southern Railway Company under the Federal Employers’ Liability Act (FELA), alleging that their exposure to dangerous chemicals in the railyard caused each of them to develop a form of cancer. The defense filed a motion to exclude plaintiff’s toxicology expert, Dr. Richard Lipsey, challenging the scientific reliability of his methodology pursuant to Fed. R. Evid. 402, 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Concurrent with the challenge to plaintiff’s expert, the defense also filed a motion for summary judgment arguing that the plaintiffs lacked the necessary expert evidence to support both general and specific causation, because Dr. Lipsey’s opinion is inadmissible, and because the plaintiffs failed to provide written expert reports for their treating physicians as required by Rule 26(a)(2)(B).

In a persuasive opinion, Judge Philip Simon, Chief Judge of the United States District Court for the Northern District of Indiana found in favor of all of the defense’s major arguments. Notably, the Court found that that Dr. Richard Lipsey was not qualified to give an opinion under Rule 702 and Daubert, and that his opinions as to general and specific causation were unreliable. In particular, Judge Simon faulted Dr. Lipsey for lack of detail in the factual connection between the claimed exposures and the diseases in question.

Judge Simon also agreed with the defense’s position that because none of the plaintiffs’ treating physicians was shown to have developed an opinion on causation in the course of their treatment of plaintiffs, plaintiffs were required to disclose a written report from each such “expert” under Rule 26(a)(2)(B). Having concluded that Dr. Lipsey may not testify as an expert, and that the treating physicians were precluded from giving expert causation testimony for failure to submit reports, the court granted summary judgment, stating that there simply is no evidence demonstrating that the plaintiffs’ various cancers were caused by toxic exposures at Norfolk Southern’s railyard.

Click here to read the complete judgment.

Click here to learn more about David Damico.

Click here to learn more about Nina Gusmar.

Pittsburgh, June 24, 2011 – Attorneys at Burns White LLC have successfully defended an insurance company in a class action suit against allegations that it breached its contract to policyholders and violated the Consumer Protection Law.

Six similar class action suits of this nature had been filed in Pennsylvania in recent years. This was the first instance in which a suit had been dismissed at Summary Judgment.

The plaintiff, Allan LaCaffinie, and his counsel argued that all owners of a single vehicle who selected a “stacking” option in their policy from the defendant – Standard Fire Insurance Co. – did not receive a benefit. Attempting to expand the view of a 2008 Pennsylvania Supreme Court decision, the plaintiff sought to certify this group as a class of thousands across the state who were harmed by the alleged lack of differentiation between “stacked” and “non-stacked” in the policies.

In defense of Standard Fire Insurance Co., Burns White attorneys David B. White and Dean F. Falavolito successfully convinced the court that the policy did indeed contain a clear benefit for policy holders who selected the “stacked” option.

Specifically, Judge Steve P. Leskinen of the Court of Common Pleas of Fayette County, Pennsylvania, wrote the following: “The Court must grant Defendant’s Motion for Summary Judgment as the insurance contract at issue provides a distinct ‘stacking’ benefit that is absent in an insurance coverage where the insured executes a valid waiver of stacking coverage.”

To read the complete order of the Court, please click here.

Click here to learn more about David White.