The Superior Court of Pennsylvania affirmed the award of summary judgment to our clients umpires Tim Welke, John Hirschbeck, Joe Brinkman, the World Umpires Association (WUA), and to all other defendants, in a suit brought by Richard Phillips, the attorney and de facto head of the former umpires union, the Major League Umpires Association (MLUA).

In July 1999, Richard Phillips, counsel to MLUA, recommended that all umpires tender their resignations to Major League Baseball (MLB) despite the fact that this plan was in violation of the collective bargaining agreement between MLUA and MLB, which forbade all concerted work stoppage[s]. A number of umpires,  including defendants Hirschbeck and Brinkman, were against the strategy and were dissatisfied with their union leadership. Phillips tendered the resignations of 57 umpires to MLB and publicly declared to the media that all umpires had resigned their positions. MLB accepted many of the resignations and began to extend offers of permanent employment to minor league umpires.

It was obvious within days that the strategy had failed, and umpires began rescinding their resignations. However, by then the damage had been done and many umpires had lost their jobs. As a result of the failed strategy, which was widely ridiculed, a number of umpires became dissatisfied with the leadership of MLUA and the legal advice the union received from Phillips. The dissatisfied umpires formed a committee and petitioned the National Labor Relations Board (NLRB) to decertify MLUA as the collective bargaining representative for the umpires. After an election conducted by the NLRB, MLUA was decertified and the WUA was installed as the new union for Major League umpires.

Richard Phillips had a contract to provide legal services to MLUA, but with its decertification his client no longer had any members. He challenged the formation of the new union, which was unsuccessful, and then filed suit against MLB and its officers, several umpires, the WUA and its head attorney, Richard M. Shapiro. Plaintiff made numerous allegations against the defendants, and after several years of discovery the trial court granted partial summary judgment on a number of counts, which was not appealed. The court then granted summary judgment on the remaining counts. The issues appealed were counts alleging tortious interference with contractual relations, tortious interference with prospective contractual relations, and civil conspiracy.

We were able to show that the lower court properly found insufficient evidence to establish a claim that the umpires interfered with existing or prospective contractual relations. Defendants did not act to harm the plaintiff. Phillips did not represent individual umpires but, rather, represented MLUA as a whole. We established that it was well within the rights of the individual umpires to seek their own counsel on matters affecting their positions and out of concern as to whether their interests were being adequately protected. Brinkman and Hirschbeck had the right to question the actions of Phillips and the union leadership, to speak with other umpires about their dissatisfaction, to obtain legal advice, and to gather support among the members to form a new union. Defendants Brinkman, Hirschbeck, and a number of other umpires exercised their federally protected rights, including the right to refrain from participating in the mass resignations. As such, nothing defendants did was unlawful or improper.

Also, plaintiff could not identify any client or prospective client who had either terminated or refused to enter into a relationship with Phillips or his firm as a result of the alleged actions of the defendants. While plaintiff claimed he lost an anticipated future relationship with MLUA, under Pennsylvania law such an anticipated future business relationship standing alone does not support a claim of interference with prospective business relationships.

With regard to the conspiracy claim, to establish the existence of an unlawful conspiracy under Pennsylvania law, a plaintiff must demonstrate that the defendants acted with malice and that the sole purpose of their conspiracy was to cause harm to plaintiff. Plaintiff alleged that Hirschbeck and Brinkman harbored personal dislike for Phillips, disagreed with the mass resignation strategy, and sought advice from defendant Ronald Shapiro. We successfully argued that while Brinkman and Hirschbeck spoke out against their union and advocated the formation of a new union, this did not show malice against the plaintiff or support a conspiracy claim. There also was no evidence that the umpire defendants acted in concert with any other defendants for the purpose of injuring plaintiff.

Richard G. Phillips, et al. v. Alan H. Bud Selig, et al., 2008 Pa. Super. 244; opinion Judge Donohue.

For more information, please contact Michael Saltzburg, Esq., at (215) 665-3340 or saltzburg@bbs-law.com or Daniel C. Moraglia, Esq. at (215) 665-3366 or moraglia@bbs-law.com.

Judge Gregory E. Smith granted defendant mother’s motion for summary judgment in a case where over a number of years her adult son, who rented a room from his mother, sexually abused the two male plaintiffs. The plaintiffs were minors at the time of the alleged abuse. Plaintiffs alleged that the mother knew or should have known about the abuse, because every weekend during the years at issue the minors slept in her adult son’s room in which there was only a single bed. Plaintiff A., now 19, testified that he was sexually abused by the defendant son from ages 11 to 16. Plaintiff S., now 17, testified that he was abused over a period of about four months at age 12. The son pled guilty to crimes related to the sexual abuse and is incarcerated.

The defendant mother successfully argued that she did not owe a duty of care to the minors, who were not her guests, to protect them from the criminal conduct of her son. This argument was based on T.A. v. Allen, in which the Superior Court held that a step-grandmother had not breached any duty of care where she allegedly failed to protect her husband's [three(3)] grandchildren from pedophilic tendencies of her son of which she knew or should have known. In that case, the children were not appellant's grandchildren; she happened to be married to their grandfather. When the minor plaintiffs visited their grandfather, they were his guests. They were not in appellant's custody, and there is no evidence that on such occasions appellant assumed any responsibility for or special relationship to the children.

The allegations against the defendant mother were similar. Plaintiffs alleged that she knew or should have known that her son was inappropriately attracted to boys because he had them in his bedroom and they slept over on numerous occasions. The defendant mother argued that she did not have a special relationship with plaintiffs that gave rise to a duty on her part to protect them from the abuse. The minors were not her guests, but the guests of her husband, and were not in her custody while in her home.

There was no evidence that the plaintiffs complained to their abuser’s mother about the abuse or that the defendant mother had actual knowledge of the abuse.

Anthony Ginyard and Steven Kee et al. v. Thomas Cassidy and Dolores M. Cassidy, Phila. CCP - Case No. 070402691; Judge Gregory E. Smith.

For more information, please contact Victoria M. Komarnicki, Esq., at (215) 665-3303 or komarnicki@bbs-law.com,or Meghan Flavin, Esq., at (215) 665-3370 or flavin@bbs-law.com.

The United States District Court for the Eastern District of Pennsylvania granted summary judgment to U.S. Steel Corporation on a Labor Management Relations Act claim made by a union employee who alleged that the company and his union violated the collective bargaining agreement (CBA) when he was not selected for
a vacant maintenance technician position.

In early 2006, management became aware that an electrical maintenance technician with more than 40 years experience would be retiring and needed to be replaced. The bid seeking candidates required the successful person to have electrical knowledge and advanced electronic diagnostics experience for repair and maintenance of the machinery used at the plant. The CBA provided that the ability to perform the work and continuous service at the plant, i.e., seniority, were to be considered, in that order, in the selection process, and if the first factor were relatively equal between the candidates, seniority was to be the determining factor.

The bid was awarded to a union employee with extensive electronics experience but with less seniority than the plaintiff. Plaintiff believed he had the requisite electronics knowledge and experience and claimed that based on his seniority, U.S. Steel violated the CBA by not awarding him the position.

Plaintiff also claimed that his union failed to provide him with adequate representation on his grievance. Plaintiff had filed a grievance with his union, which pursued the grievance through the first three steps of the process. The union then decided not to proceed to arbitration because it was felt that it would not prevail.

The court granted the defendants’ motions for summary judgment. The court specifically held that U.S. Steel did not violate the collective bargaining agreement because U.S. Steel was able to show through testimony and documentation that the successful bidder had electronics knowledge and experience that plaintiff lacked and that there had been adherence to the provisions of the CBA.

Harkins v. U.S. Steel et al., United States District Court for the Eastern District of Pennsylvania, 08-cv-3398; Judge John P. Fullam.

For further information, please contact Daniel C. Moraglia, Esq., at (215) 665-3366 or moraglia@bbs-law.com.

Kenneth Dorney, a New Jersey resident, brought a personal injury lawsuit against West Virginia residents Dominic and Diana Mammi in the United States District Court for the District of New Jersey under diversity jurisdiction.

During plaintiff’s stay at defendants’ residence, he agreed to help trim branches from a large oak tree on their property. Plaintiff and Mr. Mammi brought an aluminum extension ladder, electric chainsaw, and remote generator from defendants’ garage to the oak tree.

After extending and locking the ladder against the tree, plaintiff ascended to the top of the ladder, approximately 30 feet above the ground, and began using the electric chainsaw to cut a branch 12-15 feet long and one foot in diameter. While the plaintiff cut, Mr.Mammi held the ladder steady.

Plaintiff’s and defendant’s versions of the accident differed. Plaintiff claimed that the ladder suddenly twisted, throwing him to the ground. Defendant claimed that the tree branch being cut hit the ladder. Plaintiff fell to the ground, suffering broken bones, lacerations, and internal bleeding. He spent several weeks in the hospital and
underwent multiple surgeries as a result of his injuries.

Plaintiff contended that defendants were negligent because they failed to (1) properly secure the ladder; (2) provide safety equipment; and (3) prevent plaintiff from engaging in a dangerous activity. After the close of discovery, defendants filed a motion for summary judgment asserting that plaintiff had failed to meet his burden of proof, as there was no evidence of negligence on the part of defendants.

After extensive briefing and lengthy argument, Judge Joel Schneider granted defendants’ motion and dismissed the action. The judge performed a choice of law analysis and determined that West Virginia substantive law applied. Despite the fact that the premises liability standard for summary judgment in West Virginia is much more lenient for the plaintiff than the New Jersey standard, the court granted summary judgment after oral argument, holding that plaintiff failed to prove that defendants breached a duty or that defendants’alleged negligence was a proximate cause of the accident.

Judge Schneider authored an opinion supporting the grant of summary judgment. The opinion can be found at 2008 WL 4378394.

An appeal has been filed and is pending in the Third Circuit. Keneth Dorney v. Dominic Mammi and Diana Mammi, United States District Court for the District of New Jersey, No. 06-cv-4695(NCH); Magistrate Judge Joel Schneider.

For more information, please contact Michael A. Weiner, Esq., at (215) 665-3332 or weiner@bbs-law.com.

Tenants of a townhouse brought claims against their landlords, alleging bodily injury, Consumer Fraud Act violations, and breach of express and implied warranty due to mold infestation. Plaintiffs claimed that the mold was caused by multiple leaks and that the mold persisted even though defendants attempted to repair the leaks. Plaintiffs alleged that the mold caused repeated and continuous respiratory illnesses, sleep disorders, and other illnesses.

Defendants removed the case to federal court. Initially, defendants moved for summary judgment on the bodily injury claims because plaintiffs had not provided the required expert witness or evidence to prove causation under the Daubert standard, and summary judgment was granted for this reason. Summary judgment also was granted as to the Consumer Fraud Act claim, the court ruling that plaintiffs had failed to establish that defendants knowingly concealed the existence of the water leaks.

Thereafter, plaintiffs moved for summary judgment on the claim that defendants breached the express and implied warranty of habitability because of their failure to provide a safe residence. Plaintiffs thus sought to recover for rent they paid during the time the townhouse was not maintained in a habitable condition, in particular alleging that a portion of the townhouse was completely uninhabitable.

Defendants were granted summary judgment on the claim for rent abatement because plaintiffs did not present evidence establishing the measure of damages. Acknowledging the lack of New Jersey case law on the issue, the court observed that New Jersey law would undoubtedly require plaintiffs to demonstrate the fair rental value of the townhouse as impaired.

As plaintiffs offered no evidence in this regard, summary judgment was appropriate.
Sanders v. Rosenberg, No. 06-1406 (NLH), 2008 WL 1732980 (D.N.J. Apr. 10, 2008) WL 2945983 (D.N.J. July 30, 2008); Judge Noel L. Hillman.

For more information, please contact Michael Dolich, Esq., at (215) 665-3313 or
dolich@bbs-law.com.

In an eight-page unpublished opinion, federal judge Robert B. Kugler upheld the removal from state to federal court brought by BBS client L'Oreal USA, Inc. Plaintiff initiated suit in New Jersey state court in April 2007 against L'Oreal and an in-state distributor of its product. Discovery on the merits followed, including hearings and orders regarding discovery disputes. Plaintiff voluntarily dismissed the last claim against the in-state distributor at which time L’Oreal removed based on complete diversity.

The court agreed with L'Oreal that the dismissal of the in-state distributor made the case removable under 1446 (b), noting that defendant had met all the statutory requirements. The court also held that participating in discovery disputes during the period before complete diversity was present did not show a clear and unequivocal intent to waive its right to remove. "There is no indication that [defendant] sought out a final determination on the merits of this case in state court." Judge Kugler also held that "filing an answer and conducting discovery will not automatically bar the removal of an action."

As to "principal place of business," the court relied on an affidavit submitted by L'Oreal stating that it maintained its principal place of business in New York. The court found that plaintiff had offered no "evidence" to rebut the assertion in the affidavit and had made "no showing" that L'Oreal was a citizen of New Jersey, despite plaintiff's listing of numerous places of business for L'Oreal in the state from telephone and other directories.

Under New Jersey scheduling orders, a defendant is at risk if it does nothing for a year, hoping that diversity will be established. Of course, if plaintiff senses that defendant will remove, any stipulation of dismissal of the in-state defendant can easily be deferred until after the one-year cutoff established by 1446. Thus, discovery must be pursued. However, a motion for summary judgment might well trigger a finding of waiver of removal.

If a defendant's citizenship is contested, an affidavit attesting to state of incorporation and principal place of business may be helpful in establishing the needed record.

Cook v. Soft Sheen Carson, Inc. et.al., D.N.J. 08-1542; Judge Robert B. Kugler.

For more information, please contact Dana Szilier, Esq., at (215) 665-3428 or szilier@bbs-law.com; Bourne Ruthrauff, Esq., at (215) 567-2883 or ruthrauff@bbs-law.com.