Snyder

A Levittown, Pa. woman who worked as a registered nurse for Temple University Health Systems until she became incapacitated in the spring of 2006 due to an on-the-job injury has filed a federal complaint against Cigna, alleging the company wrongly terminated her long-term disability benefits.

Attorney Marc H. Snyder, of the law firm of Rosen, Moss, Snyder & Bleefeld, LLP, filed the lawsuit Nov. 14 at the U.S. District Court for the Eastern District of Pennsylvania on behalf of Jamy Vonberg, of Bucks County, Pa.

The defendant in the lawsuit is Philadelphia-based Life Insurance Company of North American, better known as Cigna.

The lawsuit claims that Vonberg, who was eligible to receive long-term disability benefits pursuant to a Cigna-sponsored group long-term disability plan, was wrongfully denied continued coverage after she suffered the second of two major neck and back injuries as a result of on-the-job injuries.

Vonberg’s first injury occurred in October 2003, at which time she suffered herniated discs requiring surgery, the suit states. Vonberg eventually recovered and was able to return to work.

In September 2005, however, Vonberg re-injured herself while attempting to reposition a 280-pound patient whose hospital bed malfunctioned, causing Vonberg to bear the brunt of the patient’s weight, the lawsuit claims.

“This incident caused Ms. Vonberg to sustain traumatically induced and severe injuries to her neck and back,” the complaint states.

Following her injury, Vonberg remained out of work for several weeks, before trying to resume employment in a light duty capacity, the suit states. In April 2006, however, her treating physician placed her on leave. Since that time, Vonberg has remained disabled and has been unable to work.

From 2006 through early 2009, Vonberg underwent treatment from various physicians for her neck and back issues, the complaint states. The treatment included various surgical procedures, continuous medication and pain management care.

The lawsuit claims that Cigna first informed Vonberg of its decision to terminate her disability benefits in June 2010. The reason: Vonberg had allegedly not provided sufficient updated medical records supporting her disability, the suit states.

A November 2010 medical test, however, established that Vonberg was not even able to perform even “sedentary type work-activity in an 8-hour work day,” the lawsuit claims.

“The afore-referenced [test] provides clear, objective medical evidence that Ms. Vonberg remains physically and medically unable to re-engage in full-time, gainful employment,” the lawsuit states.

As recent as December 2010, the suit states, Vonberg was examined by a doctor who determined that Vonberg continues to suffer from neck pain, decreased range of motion and other arm symptoms, significant lower back pain traveling to her legs, axial back pain and numbness, tingling and subjective weakness, the lawsuit states.

In June of this year, the suit claims, Vonberg provided Cigna with her updated medical records reflecting the aforementioned tests she had undergone showing she still suffers from a disability.

On September 1, Cigna once again informed Vonberg it has decided to uphold its decision to terminate her disability benefits.

The lawsuit claims that Cigna’s September termination letter never referenced the fact that Vonberg was awarded Social Security disability benefits in January of this year, and that the letter “completely lacked any evaluation and analysis of the totality of evidence of record, medical and otherwise, and its application to the terms and provisions of the Policy.”

In her lawsuit, Vonberg claims that Cigna breached its disability insurance contract when it terminated her long-term benefits.

“Ms. Vonberg was and remains totally disabled from performing ‘all the material duties of any occupation’ due to her ongoing, chronic and unrelenting medical conditions and symptoms, including the need for medications to address and control her medical problems, all of which causes Ms. Vonberg to be unable to perform ‘all the material duties of any occupation,’ and, thus, establishes a continuing, compensable disability under the Policy,” the lawsuit claims.

“As outlined above, Cigna breached its duty under the Policy and law by arbitrarily, capriciously, erroneously, incorrectly and improperly terminating Ms. Vonberg’s long-term disability benefits on effective June 7, 2010, at the any occupation stage.”

The lawsuit claims that the denial of benefits to Vonberg meant a monetary savings to Cigna, and thus was “tainted by a conflict of interest.”

Vonberg seeks to have her long-term disability benefits reinstated. She also seeks attorney’s fees, interest and other equitable relief.

The federal case number is 2:11-cv-07062-JP.

Kelly

The Pennsylvania Office of Attorney General announced late last week that it has reached an agreement with a Southeastern Pennsylvania man who allegedly promoted art exhibit space for various art shows throughout the United States and Canada, but later failed to provide the space to those promised customers.

The office’s Bureau of Consumer Protection reached the settlement with Christopher Gervasi, a Delaware County man who promoted art shows  and promised to sell booth space to exhibitors in specific locations on specific dates, and then allegedly changed the venues of the shows, or cancelled them all together, after a contract was signed between himself and the potential customers.

Attorney General Linda Kelly said in her office’s announcement that Gervasi did not offer customers refunds and cut off communication with them entirely in some instances.

Some customers, upon learning the exhibit space would not be available or a venue was changed, withdrew from the shows within the timeframe and manner dictated by Gervasi’s contracts, but the promoter still failed to issue the refunds.

The news release announcing the agreement stated that Gervasi has agreed to pay restitution to consumers who filed complaints with the Attorney General’s Bureau of Consumer Protection. Gervasi also agreed to pay civil penalties and fines, although specific figures weren’t mentioned in the press release.

The filing in Philadelphia’s Common Pleas Court, however, where the Assurance of Voluntary Compliance between the AG’s Office and Gervasi was filed by Deputy Attorney General Julia Nastasi, showed judgment to be in the amount of $24,338.75.

Senker

A Pennsylvania company that specializes in the business of cylinder re-qualification and maintenance can move forward with seeking increased damages against a New York-based products manufacturer, after a federal judge last week granted the plaintiff’s motion to file an amended complaint.

Norristown, Pa.-based Mawa, Inc., doing business as Erjo Services Division, had filed a lawsuit against Westbury, N.Y.-based Utility Manufacturing Co., also known as Jem Lawe Co., on March 31, 2011, seeking damages in the amount of $144,968.90, plus interest and costs.

Mawa, which specializes in cleaning cylinders such as those used as oxygen tanks, claimed that an application called “Seal Rite #5” that it had purchased from the defendant, which was supposed to provide a leak-proof connection between cylinders and their valves, was defective.

The plaintiff alleged in its complaint that it had been contacted by one of its customers who stated that a shipment of 750 medical oxygen cylinders were contaminated and unusable.

Mawa had claimed that what it had received from Utility Manufacturing was not Seal Rite #5, but rather was a substance used in the electrical industry.

Following the incident, Mawa claimed it had to devise its own cleaning method for the cylinders.

In its lawsuit against Utility Manufacturing, Mawa alleged breach of contract, breach of express and implied warranties and negligent misrepresentation.

After consulting with a business evaluation expert, Mawa concluded that the damages it originally assessed in its complaint was incorrect, and it filed a motion seeking to amend its complaint.

The defendant opposed the motion, claiming that the amended complaint would constitute a new cause of action.

On Dec. 2, Senior U.S. District Judge Robert F. Kelly agreed with the plaintiff and granted Mawa’s motion to file an amended complaint.

“Plaintiff’s amendment seeks to increase the amount of damages sought, and there does not appear to be any undue prejudice, undue delay, bad faith or futility which may result from amending the complaint,” Kelly wrote in his ruling.

The judge had written that such a motion should only be denied in circumstances in which a “plaintiff’s delay in seeking amendment is undue, made in bad faith, prejudicial to the opposing party, or [the amendment] fails to cure the jurisdictional defect.

“Although Defendant filed a brief in opposition to Plaintiff’s Motion to Amend, Defendant does not make any express argument asserting that there is a delay in Plaintiff’s seeking amendment that is undue, made in bad faith or prejudicial to it,” the judge wrote.

Mawa’s original complaint was filed by Plymouth Meeting, Pa. attorney Richard C. Senker at the U.S. District Court for the Eastern District of Pennsylvania.

Goldin

A Philadelphia woman who had hired a North Wales, Pa. attorney to represent her in a slip-and-fall case some years back is suing her former counsel in state court, alleging the lawyer didn’t do enough to pursue her case after it was initially dismissed by a judge.

Elba Logan is suing Montgomery County attorney Carlos M. Gonzalez-Aleman for what she contends was improper legal representation stemming from a complaint she had filed against New Jersey-based Cousin’s Supermarket.

According to the new complaint, which was filed Jan. 3 at Philadelphia’s Common Pleas Court by Northeast Philadelphia attorney Jeffrey J. Goldin, Logan had fallen as a result of a slippery substance that had been left on the floor of the supermarket, located at 1915 N. 6^th St. in Philadelphia. The alleged incident occurred on July 31, 2007.

Logan subsequently retained the services of Gonzalez-Aleman, who, on July 30 of that year, filed a praecipe to issue a writ of summons against the supermarket in order to preserve the statute of limitations.

In November 2009, Gonzalez-Aleman filed an official complaint against the supermarket in state court, the suit states.

Then, in late December of that year, the court issued an order sustaining preliminary objections by the supermarket, and striking the plaintiff’s complaint in its entirety.

The lawsuit claims that Gonzalez-Aleman “took no further actions to attempt to reopen the aforementioned matter.”

On Nov. 16, 2010, Logan retained a new lawyer in an effort to reopen her case. On Feb. 8 of this year, the plaintiff’s motion seeking leave to file an amended complaint was denied with prejudice, the lawsuit states.

“At all times material hereto, Plaintiff Elba Logan had a legitimate factual and legal claim against Cousins,” the lawsuit states.

The legal malpractice complaint alleges that Gonzalez-Aleman had a duty to represent his client “zealously” and to protect his client’s legal rights, and that he allegedly failed to do so and breached his duty when he opted not to pursue the matter further.

Logan demands judgment against Gonzalez-Aleman in a sum not greater than $50,000, plus delay damages, interest and other court relief.

The case number is 120100149.

Orsatti

A federal judge in western Pennsylvania appears to be closing a case in which Pepsi merchandisers were suing the soda retailer for allegedly not paying overtime compensation.

Chief United States District Judge Gary L. Lancaster of the U.S. District Court for the Western District of Pennsylvania ordered the case closed after the court was made aware that the parties in the class action suit had apparently reached an agreement.

The pending settlement, the terms of which were undisclosed, stemmed from the case of Dennis Thieret et al v. Bottling Group LLC, doing business as Pepsi Beverage Company.

Thirty-five merchandisers from the McKees Rocks, Pa. soda plant had earlier filed suit against the company, seeking to recover unpaid overtime wages they claimed they were owed in their capacity as non-exempt employees.

According to court papers, Pittsburgh, Pa. attorney Ernest B. Orsatti informed Pepsi counsel on March 4 of last year that he was planning to file suit 10 days later “unless the matter could be amicably resolved.”

At the request of the defendant’s counsel, Orsatti initially delayed in filing the suit, but then reconsidered after it was apparent that the matter would not be resolved outside of court.

The lawsuit had accused Pepsi of violating the federal act that requires all non-exempt employees to be paid at the rate of two-and-a-half times the regular hourly rate of pay for all hours worked in excess of 40 per week.

“Plaintiffs believe that Pepsi’s violation of the Act was willful because, despite knowledge that plaintiffs were not exempt under the Motor Carriers exemption or any other exemption, and plaintiffs knowledge of the results of a similar lawsuit involving a related company, Frito-Lay, Inc., Pepsi continued to refuse and continues [to refuse] to pay overtime in accordance with the Act,” the lawsuit had read.

In addition to the overtime pay, the plaintiffs had sought liquidated damages, interest, attorney’s fees and other litigation costs.

In his order dated Jan. 9, Lancaster directed the clerk of court to mark the case closed.

“Nothing contained in this order shall be considered a dismissal or disposition of this matter and this court shall retain jurisdiction,” the order states. “Should further proceedings in it become necessary, or desirable, either party may initiate it in the same manner as if this order had not been entered.”

In a brief emailed response to an inquiry about the supposed resolution, plaintiff’s attorney Orsatti said the settlement is not public and is not technically finalized as of yet.

“It is subject to a contingency which has not yet been satisfied,” Orsatti wrote.

Orsatti declined further comment.

Weitz

A Philadelphia man is suing an attorney he had hired to represent him in a previous drug liability case, alleging the lawyer failed to bring a timely claim on the plaintiff’s behalf.

Attorney Eric H. Weitz, of the Philadelphia firm Messa & Associates, P.C., filed the legal malpractice complaint Jan. 10 at the Philadelphia Court of Common Pleas on behalf of Ramiz Monteiro.

Named as defendants in the lawsuit are attorney Kenneth Scott Saffren and his law firm, Saffren & Weinberg, LLP, which is based in Jenkintown, Pa.

According to the civil action, Monteiro hired Saffren to represent him in a workers’ compensation claim stemming from a knee injury Monteiro had suffered at work during a 1999 incident.

As part of the treatment for his injury, Monteiro had been prescribed the drug Vioxx, the suit states. Prior to taking the medication, Monteiro had high blood pressure, but had no history of heart attacks or heart disease.

After taking Vioxx, Monteiro suffered at least one heart attack, which caused substantial damage to his heart and health, according to the complaint.

After learning from a physician that the Vioxx may have caused his heart attack, Monteiro consulted with Saffren about bringing a potential claim against the drug’s manufacturers.

On Nov. 24, 2004, Saffren told Monteiro that his law firm would represent the plaintiff in his claim for Social Security disability benefits, the suit states. Five days later, Monteiro executed a contingent fee agreement hiring Saffren & Weinberg to represent him in the Vioxx claim.

During the ensuing few years, however, Monteiro and his family repeatedly contacted Saffren about the Vioxx claim, inquiries that went unanswered, the suit claims.

Finally, in mid July 2006, Saffren called Monteiro’s family physician seeking a letter confirming that Monteiro is disabled due to his medical conditions, which were the consequence of his taking Vioxx.

“After calling Saffren & Weinberg repeatedly and threatening to bring disciplinary action against Mr. Saffren, Mr. Saffren finally returned the Monteiro’s calls,” the lawsuit states.

On Jan. 4, 2010, the suit states, the Monteiros called an assistant at Saffren’s law firm and were informed that Saffren had no information about the Vioxx claim.

Ten days later, Monteiro met with Saffren face-to-face, during which Saffren admitted that he had no information or materials related to the Vioxx claim, that his firm did, in fact, have the contingent fee agreement relating to the Vioxx claim, but possessed no other documents pertinent to the claim, that Saffren’s firm had obtained materials from Monteiro’s doctors, but had lost those materials, and that he would call Monteiro within one week to update him on the status of the case, according to the complaint.

“On January 14, 2010, Mr. Monteiro first became aware that Mr. Saffren and Saffren & Weinberg most likely failed to file a claim on Mr. Monteiro’s behalf, failed to refer Mr. Monteiro to a firm handling Vioxx claims and/or failed to take any action to pursue Mr. Monteiro’s Vioxx claims,” the lawsuit states.

The lawsuit accuses the defendants of negligence in failing to bring a timely claim on behalf of Monteiro, failing to properly investigate Monteiro’s Vioxx assertions, failing to take the necessary steps to ensure that Monteiro’s claims would be protected, and failing to refer the Vioxx claims to counsel familiar with pursuing those claims.

As a result of the alleged inaction, Monteiro suffered permanent heart damage, past and future pain and suffering, lost earnings, past and future humiliation and emotional and psychological trauma.

Monteiro seeks damages in excess of $50,000, as well as interest and other court costs.

A jury trial has been demanded.

The case ID number is 120101100.

Levin

A western Pennsylvania man has filed a class action lawsuit against Enterprise Rent-A-Car, alleging the Missouri-based company is violating Pennsylvania law, and the laws of three other states, when it levies an additional charge on customers who accidentally damage rental vehicles.

Pittsburgh, Pa. resident Chad Shannon filed the lawsuit Jan. 17 on behalf of himself and others similarly situated.

The complaint, filed at the U.S. District Court for the Eastern District of Pennsylvania by Philadelphia lawyer Daniel C. Levin, West Chester, Pa. attorney Christopher G. Hayes and Pittsburgh lawyer Aaron Rihn, alleges that Enterprise is violating the laws of Pennsylvania, Illinois, New York and California when it collects a “diminishment of value” charge to customers who, during their contract period with the company, unintentionally damage rental vehicles.

The suit states that Enterprise improperly charges customers for diminishment of value to the vehicle in addition to cost of actual repair when repair damages are above $500.

The complaint says that the defendant will charge customers the total repair cost plus 10 percent of damages.

In Shannon’s case, the plaintiff was billed $1,531.10 for repairs plus $153.11 for diminished value following a vehicle accident late last year.

The suit states that Shannon “did damage the vehicle” he rented from Enterprise on Oct. 21, 2011. He subsequently made the “double payments” to the company “under protest.”

“Indeed, under Pennsylvania, Illinois, New York and California law, the proper measure of damages for a personal property claim is the lesser of costs of repair or diminished value of the vehicle,” the lawsuit states. “Clearly, Enterprise is not entitled under the relevant law to collect both charges when pursuing personal property damages.”

The lawsuit states that Enterprise is in violation of both the law and its own contract, the latter of which does not provide for the company to charge both cost of repair and diminished value for personal property damages.

“Rather, Defendant only states it may elect to charge those charges,” the suit states. “This leaves a consumer to believe that it may be charged for one or the other pursuant to the law. Further, Defendant’s contract states it will follow the law.”

The lawsuit goes on to label the Enterprise rental agreements “procedurally unconscionable.”

“These are form contracts that are provided to all consumers on a take it or leave it basis,” the suit states. “No consumer has the ability to negotiate the terms of the contract, but are rather provided to them by Enterprise who is in a superior negotiating position because Enterprise drafted the contract and does not provide the parties the right to negotiate terms.”

The lawsuit contains counts of breach of contract and unjust enrichment.

The plaintiff seeks class action status, along with actual, general, special, incidental, punitive, statutory and consequential damages to which the lawsuit claims the plaintiffs are entitled.

Pre-and-post-judgment interest and attorney’s fees are also being sought.

The federal case number is 2:12-cv-00198-RB.

A Philadelphia Common Pleas Court judge has affirmed an earlier decision by the court to grant summary judgment to a bridge and ironworkers’ union which claimed that a settlement agreement in a case where workers alleged they were deprived of job opportunities and earnings based on race, was not accepted in a timely manner.

In a Jan. 18 ruling, Judge Allan L. Tereshko wrote that the plaintiffs Leonard Brundage, Walter Franklin and Christian Williams were not entitled to a previous settlement agreement because they waited too long to accept the offer.

The plaintiffs had filed suit in late September 2010 against the International Association of Bridge, Structural and Ornamental Ironworkers, Cornell & Company Inc., Roma Steel, Northwest Erectors Inc., Bensalem Steel Erectors Inc. and Delaware Valley Erectors Inc.

The lawsuit alleged a breach of settlement agreement on the part of the defendants, which had arisen out of a previous lawsuit filed by the plaintiffs in early September 2000 in federal court in Philadelphia.

That initial lawsuit claimed that the plaintiffs were denied job opportunities and earnings because of race.

After a mid-December 2007 settlement conference, the defendants agreed to pay the plaintiffs $45,000, in exchange for the plaintiffs agreeing not to use the union hiring hall for referrals or ever again seek employment with the defendants.

Counsel for the defendants soon sent plaintiffs’ counsel settlement papers, but they were never signed, since the plaintiffs disagreed with the “no right to rehire” provision contained within the settlement.

New terms were offered, but the parties could never come to agreement on the alternatives.

At first, only one out of the three plaintiffs agreed to the revised settlement, and eventually all three agreed to sign.

Because this didn’t happen until October 23, 2009, a full 22 months after the settlement conference, the defendants subsequently refused to pay out the earlier agreed upon settlement amount.

In the fall of 2010, the plaintiffs filed their breach of settlement agreement lawsuit, which was answered by a motion for summary judgment filed by the defendants.

In his opinion, Judge Tereshko wrote that because the settlement agreement was not accepted within a reasonable time, “Plaintiffs no longer possessed the power to accept.”

“The 22-month lapse between the settlement conference and the return of the signed Settlement Agreement and Release was clearly unreasonable and thus constituted a question of law for the court,” Tereshko wrote. “After two out of the three Plaintiffs rejected the no right to rehire provision, there was no communication between counsel for the parties for a period of 18 months, entitling counsel for Defendants to believe that the time for acceptance had lapsed.”

In affirming the court’s earlier summary judgment ruling for the defendants, Tereshko said the court believes the plaintiffs’ “power of acceptance was terminated by either their rejection of the settlement agreement and counteroffer proposing substitutes for the no right to rehire provision, or in the alternative, by the lapse of 22 months between the original offer and the attempted acceptance.”

A Philadelphia man has filed a class action lawsuit against LA Fitness, alleging the company, which last year purchased Bally Total Fitness, has refused to honor lifetime memberships held by former Bally’s members.

The complaint, which seeks class action certification, was filed Jan. 18 at Philadelphia’s Common Pleas Court by New Jersey attorney Mark S. Guralnick.

The main plaintiff is West Philadelphia resident Blaise Tobia. There are also 41 co-plaintiffs named in the suit.

According to the complaint, Bally Total Fitness International sold its assets relating to 171 or more of its clubs and fitness centers to LA Fitness International in 2011.

In effectuating the transfer of the assets, Bally’s closed its gyms and transferred the memberships of thousands of its members to LA Fitness.

The membership transfer, however, was in violation of the contracts Bally had signed with many of its members, who pre-paid for lifetime memberships, the lawsuit claims.

The complaint alleges that along with refusing to honor the terms of the lifetime memberships, LA Fitness has refused to match the terms of the membership contracts signed by Bally’s members without additional conditions, commitments or costs, and failed to accommodate Bally’s members at their clubs.

The suit accuses Bally’s of continuing to sell annual memberships and other long-term contracts without any warning of the “imminent closing” of their health clubs and “misleading and defrauding their soon-to-be-displaced members.”

The complaint also alleges that Bally’s has failed and refused to refund membership fees to compensate members for the unusable portions of their contracts.

The lawsuit seeks damages, injunctive relief and declaratory relief on behalf of the class members, which it says are more than 1,000 Bally’s members throughout the country who maintained active memberships at one or more of the Bally Fitness Center locations and are now unable to use their memberships at LA Fitness locations.

The lawsuit said the actions of the defendants violated the Pennsylvania Health Club Services Act, the New York Health Club Services Act, McKinney’s General Business Law, the Illinois Physical Fitness Services Act, and other similar health club laws across the country.

The lawsuit contains counts of false and fraudulent transactions, unjust enrichment, deceptive trade practices, negligence and gross negligence, breach of contract and fraud and constructive fraud.

In addition to injunctive, declaratory and compensatory relief, the class members also seek punitive damages and other equitable and legal relief.

A jury trial has been demanded.

The case ID number is 120102129.

Rufe

A former employee of a Philadelphia youth detention center can move forward with his claims that the city failed to offer him the COBRA health insurance extension following his termination, a federal judge has ruled.

In a memorandum order Jan. 25, U.S. District Judge Cynthia M. Rufe denied the City of Philadelphia’s motion to dismiss a suit brought by Tony Dphax King, Jr., a former youth detention counselor who was fired from his job after an extended medical leave relating to an October 2007 incident in which a juvenile broke King’s pinky finger.

After the work-related incident, King was approved for 12 weeks of leave under the Family Medical Leave Act, court papers state.

King’s medical benefits were subsequently terminated on Jan. 31, 2008, and he was officially fired from his job on May 30, 2008 after his unpaid leave period expired.

King filed a lawsuit against the city on May 5, 2010 alleging wrongful termination and violations of the city’s civil service regulations and its Home Rule Charter.

King also claimed that the city failed to provide the required notification regarding his right to elect to continue his health insurance coverage pursuant to COBRA.

The court initially dismissed all claims by memorandum opinion in late October 2010, but granted King leave to amend his COBRA claims against the city, according to background information found in the latest court ruling.

King’s first amended complaint was filed in early December 2010, which the city answered and filed its own motion for summary judgment on the pleadings.

King then sought leave to file a second amended complaint, which the court ultimately granted. The second amended complaint was filed on Nov. 22, 2011.

The city soon moved to dismiss this complaint as well, but Rufe refused to do so, ordering the case to move forward.

In her ruling, Rufe wrote that there were questions that still lingered involving the statute of limitations when it comes to electing COBRA following a job termination.

The city had moved to dismiss the complaint, arguing that King failed to opt for COBRA within two years of a “qualifying event.”

King had counter-argued that his claim was filed within the two-year time frame, and, in the alternative, that a four-year statute of limitations period was applicable.

The city argued that there was a two-year statute because King’s claim is akin to a tort claim; King argued that his claim was analogous to a breach of contract claim, which has the four-year statute of limitations.

The other discrepancy had to do with what constituted the so-called “qualifying event,” with the city arguing that the event occurred on Jan. 28, 2008 when King exhausted his medical leave under the Family Medical Leave Act and was approved for unpaid medical leave as per city policy.

King had argued that the qualifying event was his May 30, 2008 termination.

Rufe’s opinion signaled mixed feelings on the matter.

“As the purpose of COBRA is to ensure an employee’s access to continuous health care coverage, the Court finds that the exhaustion of King’s right to health insurance coverage under the FMLA on January 25, 2008 was a qualifying event in this case,” the judge wrote. “At that point he was no longer entitled to participate in the City’s group health plan without electing COBRA coverage, and therefore that is a ‘qualifying event’ consistent with the purpose of the legislation.”

However, Rufe also wrote that King’s May 2008 termination may have created a second qualifying event, “or, alternatively, the statute of limitations may have been tolled during the period between the termination of benefits and the termination of employment. These questions are not ripe for resolution at this point in the litigation.”

Rufe allowed the case to proceed to discovery.

Oshinksy

Pennsylvania State University has filed a lawsuit against its insurance company, claiming the defendant breached its duties when it filed its own civil action against the educational institution late last month seeking a judge’s declaration that the insurer doesn’t have to cover the school in yet another civil suit filed by an alleged victim of accused child molester Jerry Sandusky.

Sandusky, the university’s former assistant football coach, stands accused of sexually abusing minors during a period of time dating back to the 1990s.

On Jan. 31, Blue Bell, Pa.-based Pennsylvania Manufacturers’ Association Insurance Co. filed suit in Philadelphia’s Court of Common Pleas seeking declaratory relief against Penn State.

The insurance company disputes that Penn State is entitled to coverage in a case brought by a man named only as John Doe A, who filed his own lawsuit in late November.

Doe, who claims he was a victim of Sandusky’s, named Penn State as a defendant in the lawsuit. The main defendant in the case was The Second Mile, the Centre County, Pa. charitable organization that benefits disadvantaged youth and was founded by Sandusky.

The insurance company, in its Jan. 31 filing, claimed that university officials approached it in early January of this year and made a claim for coverage and defense under a 2004 policy.

The company claims that Penn State sought coverage under what is known as a “continuous trigger” theory, which says that allegations in the Doe complaint triggered coverage under any policy in place from the time Doe was allegedly first molested by Sandusky through the entire period that he actually sustained injuries.

The insurer disagreed with the university’s assessment, and subsequently filed its civil action seeking declaratory judgment saying it wouldn’t be on the hook for any potential damages arising from the Doe litigation.

Penn State’s suit against the insurer contains counts of breach of contract and bad faith.

“PSU has been damaged by PMA’s breach by, among other things, being denied the benefits of the insurance coverage for which it contracted, that are required by law, and for which PMA collected substantial premiums, and PSU has been forced to incur the substantial burden and expense of bringing and pursuing this action,” the complaints alleges, according to a report in the Legal Intelligencer.

A copy of the complaint, which was filed Feb. 15 at the Centre County Court of Common Pleas by California attorney Jerold Oshinsky and State College, Pa. attorney Joseph P. Green, was not immediately readily available.

Oshinsky was quoted in the Intelligencer as saying that PMA, both in its denial of coverage to Penn State and in its civil action, had set forth an “erroneous construction of the contracts it had with the school.”

In an interview with the Pittsburgh Tribune-Review, Penn State Senior Vice President for Finance and Business David Gray said the school contends the insurance company’s own lawsuit is “without merit.”

“Despite substantial insurance premiums paid by the university to PMA over decades, PMA has refused to provide the coverage for which the university is entitled,” Gray told the newspaper. “We are extremely disappointed that rather than act in good faith with its insured, PMA instead chose to file an anticipatory lawsuit against us.”

Penn State’s suit, according to the Tribune-Review, was filed because the university “seeks to enforce its rights under its PMA policies and is in sharp contrast to PMA’s tactical action.”

Penn State has been hit hard by the Jerry Sandusky child sex-abuse scandal ever since it started unfolding late last year.

Numerous civil actions have been filed against the school and The Second Mile since Sandusky was arrested and charged following a grand jury indictment in November.

Sandusky awaits trial, as do two former Penn State officials charged with perjury for allegedly lying to a grand jury investigating the former defensive football coordinator.

A federal judge in Philadelphia has granted partial class certification for plaintiffs in a civil suit alleging the courier service they work or worked for improperly classified them as independent contractors and not employees.

Plaintiffs Elizabeth Sherman, Mohamad Abushalieh, Anthony Sturgis and William Walsh, delivery drivers for American Eagle Express, Inc., a courier company that delivers financial and medical products to banking institutions, hospitals and pharmacies in the mid-Atlantic region, filed a class action lawsuit against the company on behalf of themselves and those similarly situated.

The proposed class is those who worked as delivery drivers from May 2008 to the present.

The suit seeks declaratory relief, as well as damages for violations of Pennsylvania’s Wage Payment and Collection Law, Minimum Wage Act, and Workers’ Compensation Act.

The plaintiffs allege that the fact that the company made the workers sign a form contract, the Transportation Brokerage Agreement, which allowed AEX to control the manner, method and means of each drivers’ work, meant an employer-employee relationship had been created under Pennsylvania law.

They claim that the company had an incentive to classify the workers as independent contractors, namely because it would be able to defray the costs of the delivery equipment – by requiring each driver to purchase his or her own truck, vehicle insurance, work phone and uniform – and to avoid the financial burden of treating its drivers as employees entitled to protection under Pennsylvania’s employment laws.

This ran contrary to the fact that the plaintiffs were supposedly hired as independent contractors.

In a memorandum opinion signed March 8, U.S. District Judge Juan R. Sanchez ruled that class certification would be granted only on the Wage Payment and Collection Law claim and not on the Minimum Wage Act claim.

Sanchez said the court disagreed with the argument by AEX that class certification shouldn’t be granted because the plaintiff’s exhibits are not competent to support class certification because they are too vague and not authenticated, some fall outside the proposed class period, and the plaintiffs failed to show they are relevant or how they apply to the putative class.

“Evidence in support of class certification need not be admissible at trial,” Sanchez wrote.

The main issue for the plaintiffs’ WPCL and MWA claims, Sanchez wrote, is whether the class members were appropriately classified as independent contractors.

“If evidence common to the class is capable of resolving whether AEX drivers are employees or independent contractors, then Plaintiffs’ claims are suitable for class certification,” the judge wrote.

Sanchez ruled that while AEX argues that individual inquiries must be made into the number of hours worked and pay deductions taken, “the need for individualized damages calculations is not a reason to deny class certification.

“This is especially true where, as here, damages such as deduction reimbursements and backpay are capable of simple calculation.”

Sanchez wrote that AEX’s potential liability under the Wage Payment and Collection Law “arises from its failure to provide certain benefits to its drivers, who, if found to be AEX employees, are entitled to such benefits.

“AEX cannot claim to have withheld these benefits to all its drivers based on a good faith belief they owed some debt to independent contractors, irrespective of the driver’s individual circumstances,” the judge wrote.

While Sanchez ruled the plaintiff’s satisfied the federal requirements as to their WPCL claim in order to proceed with class certification, he did not find the same for their Minimum Wage Act claim.

Sanchez said in deciding whether AEX’s delivery drivers were employees under the MWA, the court would have had to make an individualized examination into each class member’s relationship with AEX.

“For instance, this Court would have to separately determine if each class member depended upon AEX for his or her continued employment, as there is no common evidence that all class members are in such a position that they cannot ‘offer their services to many different businesses and organizations,’” the judge wrote. “The need for this kind of individualized inquiry renders the MWA claims unsuitable for class-wide treatment.”

Rufe

A federal judge in Philadelphia has granted a motion by the U.S. government to dismiss a complaint brought by a medical equipment supplier involving a contract dispute on the grounds that the court lacks jurisdiction over the matter.

In a March 28 order, U.S. District Judge Cynthia M. Rufe granted the government’s motion to dismiss for lack of subject matter jurisdiction. Rufe simultaneously ordered the case to be transferred to the Court of Federal Claims.

The complaint was initiated by Nichole Medical Equipment & Supply, Inc., and its president and owner, Dominic Rotella.

The plaintiffs, who specialize in durable medical equipment, had filed suit against the Unites States government seeking declaratory judgment and damages for the defendant’s alleged breach of a January 2006 settlement agreement, and also alleging fraudulent conduct relating to the agreement.

The government subsequently filed a motion to dismiss the claims on grounds relating to a lack of subject matter jurisdiction because, pursuant to the Tucker Act, contract claims seeking damages in excess of $10,000 must be heard by the Court of Federal Claims.

The government also sought to dismiss on the grounds that the district court lacks jurisdiction over the plaintiff’s fraud claims as they fall under an exception to the Federal Tort Claims Act.

According to background information on the case, the government filed a civil action against Nichole Medical at the federal court in Philadelphia back in 2004 alleging violations of the False Claims Act, unjust enrichment and breach of contract based upon Nichole’s billing for incontinence supplies.

The following year, the two parties entered into a settlement agreement by which Nichole agreed to pay the U.S. government $750,000.

The agreement provided that Nichole Medical would make one “substantial” payment followed by equal monthly payments for five years, and would undertake “enumerated non-monetary obligations.”

In exchange, the government would release the company from civil or administrative monetary claims based on the covered conduct, which was related to the overbilling for motorized wheelchairs and medical beds.

According to the background information, an investigative arm of the U.S. Department of Health and Human Services found evidence that Nichole Medical improperly billed Medicare for some of the equipment.

“This was understood by the parties to be a final resolution of the dispute over Nichole Medical’s billing for incontinence supplies,” the judicial order states. “The Complaint in the present case alleges that Nichole Medical made the substantial initial payment, but made only two of the sixty monthly payments due under the Settlement Agreement.”

Nichole Medical eventually appealed the overpayment calculation, and an administrative law judge agreed with the company that some of the disputed money had been offset and was owed back to Nichole.

In January 2008, the Medicare Appeals Council upheld the judge’s decision.

Rather than issuing the funds to Nichole Medical, however, the U.S government wished to apply some of the money to the balance owed to the government under the prior settlement agreement, since, by that time, Nichole Medical was in default.

The government subsequently filed a motion to seek enforcement of the incontinence supplies settlement agreement, but a district court judge denied the motion on procedural grounds.

In its complaint, Nichole Medical sought declaratory judgment regarding the settlement agreement, arguing that the government breached its agreement and its duty of good faith by allowing its agents to conduct an unannounced investigation of Nichole Medical’s billing for motorized wheelchairs and semi-electric beds, reopening closed claims, and imposing an offset allegedly improper billing.

Nichole Medical sought judgment declaring that the settlement agreement was rendered void and/or unenforceable by the government’s mishandling of the case.

Nichole Medical asserted a breach of contract claim for the same conduct. The company also sough relief and punitive damages for fraud, alleging that the government agreed to conduct business with Nichole Medical within the applicable legal and statutory structure, that the representation that it would do so was false, and that Nichole Medical relied upon that representation “to its detriment.”

In her ruling, Rufe wrote that because the settlement agreement was not part of the record or incorporated into an order of the district court, the court has no power to enforcement the settlement agreement, and therefore has no jurisdiction over the matter.

Appeals courts have ruled that matters such as these must be played out in the Court of Federal Claims, the ruling states.

Rufe ordered the matter transferred to that venue.

A former teacher for the School District of Philadelphia whose position was terminated late last year after she received unsatisfactory performance ratings has filed a federal civil rights complaint against the educational institution alleging, among other things, that the district breached its contractual duty with the plaintiff.

Attorney William C. Reil filed the civil action April 6 at the U.S. District Court for the Eastern District of Pennsylvania on behalf of Philadelphia resident Charity M. Lynch.

According to the complaint, Lynch, who was hired by the district as an apprentice teacher in November 2009, was initially suspended for a three-month period late last year after receiving unsatisfactory ratings by the district.

Some of the evaluations that led to her suspension involved the reported witnessing of Lynch using corporal punishment on a student, the lawsuit states.

In late December 2011, Lynch received a letter by the school district’s Office of Human Resources, which was attached to the lawsuit as an exhibit, which informed Lynch that the office would recommend her termination to the School Reform Commission.

The letter cites unsatisfactory job ratings from the 2010-2011 school year.

The letter goes on to state that Woolworth Davis, who is the principal at the Ethel D. Allen Promise Academy, which is where Lynch worked, issued an unsatisfactory incident report that covered the period of October 11, 2010 to April 14, 2011 in which Lynch was cited for failure to properly write IEPs (Individualized Education Plans) and assess students in Lynch’s special education classroom.

Davis went on to issue additional unsatisfactory incident reports in the ensuing months, the letter shows.

One example of Lynch’s alleged unsatisfactory performance related to an incident outlined in the letter during which Lynch supposedly pushed a student out of her chair, causing the student to fall on her head.

The letter is signed by Donald L. Rickford, who is identified as the acting chief talent and development officer for the school district.

Rickford is named as a codefendant in the lawsuit along with Davis, Lynch’s former principal.

The lawsuit accuses the defendants of violating the contractual agreement between Lynch, a tenured teacher at the time, and the school district; failing to afford Lynch procedural and substantive due process rights; failing to allow Lynch to gather evidence to defend herself against the district’s charges; failing to allow Lynch to appropriately question witnesses and students; coercing students to make false or misleading statements against Lynch; commingling the functions of investigation and adjudication with respect to the charges against Lynch; and failing to provide Lynch with incident reports regarding the alleged corporal punishment.

The lawsuit claims that while student mistreatment was one of the reasons for Lynch’s termination, the district never provided any evidence that corporal punishment ever existed.

“The student who was allegedly the recipient of the corporal punishment was never injured and the School District of Philadelphia did not do a proper investigation of this incident,” the lawsuit states.

The suit goes on to state that the district violated Lynch’s rights by failing to issue a “definitive” letter of dismissal, and failing to show that it terminated Lynch for cause.

Lynch has suffered damages including the loss of her teaching career, since she can no longer be hired by the school district, and loss of salary.

Lynch seeks unspecified compensatory and punitive damages, as well as attorney’s fees and equitable relief.

A jury trial has been demanded.

The federal case number is 2:12-cv-01778-LP.

New

A Pennsylvania judge has granted a motion by Penn State’s insurance company to have its civil case against the university played out in Philadelphia’s Common Pleas Court.

In a brief order Wednesday, Philadelphia Common Pleas Court Judge Arnold L. New granted a motion by Pennsylvania Manufacturers’ Association Insurance Company to both have its lawsuit against the school heard in a Philadelphia courtroom, and to have a separate suit pending in the Centre County Court of Common Pleas transferred to the Philadelphia venue.

The insurance company filed suit in Philadelphia back on Jan. 31 seeking declaratory judgment against Penn State that would limit defense costs relating to a civil suit Penn State is facing by an alleged victim of Jerry Sandusky, the former university assistant football coach charged with molesting 10 young boys during the prior two decades.

Sandusky’s criminal trial is scheduled to begin in early June.

Following the filing of the insurance company’s lawsuit, Penn State filed its own civil action against its insurer alleging a breach of contract relating to the claims denial. Penn State, which is located in Centre County, Pa., also desired to have any litigation to be played out on its home turf.

The Legal Intelligencer reported that under Pennsylvania’s Rules of Civil Procedure, the Philadelphia court was authorized to transfer the Penn State suit filed in Centre County to Philadelphia County because the insurance company filed suit first and because the two cases are “mirror images” of each other.

“Indeed, the two actions represent a single dispute over PMA’s obligations to PSU,” the insurance company had said, according to the Legal Intelligencer article. “Requiring the parties to litigate the same issues in two forums would be a waste of judicial and the parties’ resources and would give rise to an unavoidable risk of inconsistent rulings.”

The insurance company had contended that the facts and legal issues in both cases were identical.

The court docket sheet in the case shows that Penn State had filed a motion to transfer venue of the Philadelphia case to Centre County back on March 9.

As for the criminal charges against Sandusky, the judge presiding over that case earlier this week denied a defense motion to dismiss the child sex-abuse charges against the former assistant football coach.

Jury selection for the criminal case is expected to begin June 5.

The union representing the Delaware River Port Authority’s 131 police officers has filed a lawsuit against the DRPA in federal court seeking to force the bi-state agency to submit to binding arbitration over the terms and conditions of the officers’ employment contract.

The lawsuit, filed by attorneys for the Fraternal Order of Police Penn-Jersey Lodge 30, claims that the 94 patrol officers, 25 sergeants and 12 corporals have been working under an employment contract that expired at the end of 2009.

The police officers are tasked with patrolling the four bridges the DRPA owns and operates that traverse Pennsylvania and New Jersey – the Ben Franklin, the Walt Whitman, the Betsy Ross and the Commodore Barry – as well as the PATCO commuter rail line.

According to the lawsuit, the police union requested in September 2009 that the DRPA agree to engage in collective bargaining over a successor to the 2005-2009 joint contract.

The request went unanswered, the suit states.

Two months later, the FOP again issued the same request, which once again went unanswered.

The parties eventually met on seven occasions between March and April 2010, but no progress on a new contract was made, the suit claims.

The lawsuit states that during these various sessions, the DRPA refused to make any economic proposals of any nature, and during many of those meetings the agency’s negotiators advised the FOP that it would not agree to any wage increases for the officers, noting that New Jersey Gov. Chris Christie, who holds veto power over DRPA Board of Commissioners’ actions, would not approve any wage increases to a DRPA employee.

In May 2010, the police union sent a request to the DRPA’s CEO asserting that the parties were at an impasse and requesting that the agency agree to invoke the contractual impasse resolution procedure.

Later that month, the two sides met, and the DRPA made offers of a 0 percent wage increase for 2010, a 0 percent wage increase with a $500 bonus for 2011, and a 2 percent wage increase for 2012, according to the complaint.

The proposal was rejected by the police union.

From 2010 through the present, the lawsuit alleges, the DRPA has refused to engage in interest arbitration with the police union.

In early February of this year, the DRPA met with representatives of Lodge 30, formally withdrawing its May 2010 offer, and additionally demanding a number of concessionary givebacks, including the elimination of longevity and injured-on-duty pay, the elimination of officers’ clothing and shoe/uniform maintenance pay, and the elimination of certain holidays.

The agency also refused to offer any wage increases at this time.

“The DRPA representatives also advised Lodge 30 that they had ‘no authority’ to offer any further compensation of any kind, explaining that New Jersey’s Governor, Chris Christie, would veto any such action by the DRPA Commissioners,” the lawsuit states. “The DRPA representatives further advised the FOP that the Authority would not consent to advancing the dispute to interest arbitration.”

The complaint states that the police union continues to operate under a 2004-2009 collective bargaining agreement.

In 2006, the New Jersey Superior Court ordered that the DRPA proceed to interest arbitration after the agency and police union reached an impasse over the terms of the 2000-2004 collective bargaining agreement.

The DRPA never appealed that decision.

“Lodge 30 and the DRPA are, if anything, going backward in their negotiations, and have been at an impasse in collective negotiations since at least February 6, 2012,” the lawsuit states. “The DRPA refuses to engage in interest arbitration to end the impasse in negotiations.”

The lawsuit further states that it would be futile for the two sides to engage in an impasse resolution procedures, which would have the parties submit their respective positions to the DRPA’s chief executive officer and a panel of DRPA commissioners and union representatives, since New Jersey’s governor has flatly stated he would veto any offer of wage increases.

The lawsuit contains counts of breach of compact and breach of contract.

The complaint seeks a mandatory injunction ordering the DRPA to engage in interest arbitration with the police union.

The suit was filed April 11 at the U.S. District Court in Camden, N.J. by Philadelphia attorney Charles T. Joyce.

According to a report in the Philadelphia Inquirer, an entry-level DRPA officer earns just over $49,000 a year. Rank-and-file officers make close to $65,000 while a sergeant can make more than $80,000 a year.

The federal case number is 1:12-cv-02170-JBS-KMW. 

A fired Philadelphia School District teacher who claims she was never afforded the opportunity to have an arbitration hearing prior to her discharge has filed a wrongful termination lawsuit against the school system.

In her civil complaint, filed April 20 at Philadelphia’s Court of Common Pleas by Philadelphia attorney Frank Finch, III, Wyndmoor, Pa. resident Kia Johnson-Thomas, who was first hired by the district in late November 1997, alleges that she was fired in July 2011 without being given the opportunity to have a termination hearing before the School Reform Commission pursuant to her employment contract.

Johnson-Thomas was a tenured teacher and member of the Philadelphia Federation of Teachers at the time of her firing, the complaint states.

The lawsuit, which also names as codefendants the SRC and former acting superintendent Leroy D. Nunery, II, claims that Johnson-Thomas should have been given the opportunity to have an arbitration hearing as per the terms of the union’s collective bargaining agreement with the school district.

The teacher’s union had informed the plaintiff that it would not be requesting an arbitration of the fired teacher’s grievances, according to the lawsuit.

According to the complaint, the SRC informed the plaintiff in August 2010 that her teaching performance was rated unsatisfactory for the previous school year.

Johnson-Thomas, the suit states, alleged that the unsatisfactory rating related to a “single isolated incident” during the 2009-10 school year in which she rejected her principal’s advice that the teacher rearrange her classroom.

Johnson-Thomas filed a grievance in late June 2010 contesting the unsatisfactory rating.

The teachers’ union and the district, however, failed to process the plaintiff’s grievance and has not given Johnson-Thomas an explanation as to that decision to date, the lawsuit claims.

After being transferred to another program following the unsatisfactory rating, Johnson-Thomas suffered a foot injury while at work and she has been unable to return to her profession ever since, collecting workers’ compensation benefits to date.

In late July, Johnson-Thomas received a letter stating that her employment was terminated effective July 1, 2011, according to the complaint.

Her termination letter stated that Johnson-Thomas’s workers’ compensation had run out, and it contained other false statements as well, the lawsuit claims.

On Aug. 31, 2011, two months after Johnson-Thomas submitted her formal grievance, the teachers’ union informed her and her attorney that it would not be taking her case to arbitration.

The union’s Dismissal Case Review Committee affirmed that decision late last year.

Late last summer, the school district also informed Johnson-Thomas that the termination decision would not be rescinded.

The lawsuit accuses the Philadelphia Federation of Teachers of bad faith and conflicts of interest for not backing Johnson-Thomas.

“… The PFT’s refusal to take Plaintiff’s case to arbitration was motivated not by a bona fide assessment of the merits of her case, but only by an organizational self-interest,” the lawsuit states.

That self-interest, the complaint alleges, was related to the union’s desire to avoid first-year PAR Program grievance arbitrations.

The PAR Program, which stands for Peer Assistance and Review Program, is a mandatory program for tenured teachers who have been rated unsatisfactory in the previous school year.

PAR was where Johnson-Thomas was sent following her unsatisfactory job rating.

As a result of her firing, Johnson-Thomas has suffered “personal injuries, frustration and anxiety, personal embarrassment, professional setbacks, injury to her reputation and good name, personal pain, suffering and humiliation, all of which will continue to deleteriously affect her for an indefinite period of time in the future,” the complaint states.

The lawsuit accuses the defendants of violating the Pennsylvania Public School Code and the state constitution.

It also alleges due process violations, as well as breach of contract and breach of duty of fair representation.

The suit seeks declaratory judgment, compensatory damages in excess of $50,000, and other equitable and legal relief.

The case ID number is 120402340.

A Philadelphia woman has filed a legal malpractice lawsuit against her attorney nephew for allegedly not pursuing a personal injury claim on the plaintiff’s behalf following a motor vehicle accident, and subsequently allowing the statute of limitations on the prior civil action to expire.

Philadelphia attorney Andrew Shaw filed the malpractice claim against lawyer Joseph Green, and the Philadelphia firm he works for, the Law Offices of El-Shabazz and Harris, which is named as a codefendant in the suit.

The plaintiffs in the case are Pamela Legg and Lanisha Smart, both of Philadelphia.

The lawsuit, filed April 25 at Philadelphia’s Court of Common Pleas, alleges that Green failed to pursue a personal injury claim on Legg’s behalf following a June 9, 2008 car accident in which the plaintiff’s vehicle was struck by another driver who allegedly disregarded a stop sign in the area of 54^th and Poplar streets in Philadelphia.

Legg called Green, her nephew, immediately following the accident, the suit states, and the attorney instructed Legg to exchange information with the other driver, contact police and then seek out medical treatment.

Green allegedly told Legg following her discharge from the hospital that the woman wouldn’t need to be formally interviewed about the incident since the two were “close relatives.”

Green then undertook representation of Legg in her pending personal injury matter, the lawsuit states.

As time progressed, however, Green failed to follow through on his representation, the complaint alleges. This included failing to obtain medical documentation and police and insurance reports, failing to attempt to settle Legg’s claims and failing to institute appropriate litigation within the time frame of the statute of limitations.

“Defendant did not follow through on his representation, nor did he ever contact any parties concerning this personal injury matter,” the lawsuit states.

The complaint accuses Green of failing to file a complaint in Legg’s personal injury case, failing to file any pleadings to protect Legg’s statute of limitations, failing to notify the appropriate parties involved in the case, failing to preserve Legg’s rights, failing to provide adequate representation, breaching a duty of care to Legg resulting in actual loss to the plaintiff, causing damage to Legg and failing to act in a manner consistent with the standard of practice for competent attorneys in the area.

The suit also accuses Green of breaching a contract with Legg, failing to keep his client informed about the case, failing to investigate claims of Legg’s personal injury action, and failing to perform proper duties and obligations undertaken.

Both plaintiffs seek $50,000 in damages from the two defendants, along with attorney’s fees and other costs.

The case ID number is 120403050. 

A Northeast Philadelphia electric company is suing a New Jersey construction firm in state court, alleging the defendant failed to pay the plaintiff the remaining balance on a subcontract relating to a construction project at a local shipping port.

Attorneys Shawn R. Farrell and Christopher P. Soper, of the Philadelphia firm Cohen, Seglias, Pallas, Greenhall & Furman, P.C., filed the civil action April 30 at Philadelphia’s Common Pleas Court on behalf of Aubrey Green Electric Inc.

The defendants listed in the suit are Blackwood, N.J.-based A.P. Construction Inc. and Boston, Mass.-based Liberty Mutual Insurance Company.

The contract dispute relates to a repair project at Philadelphia’s Tioga Marine Terminal that A.P. Construction was tapped to lead back in 2009.

More than a year after entering into a contract with the Philadelphia Regional Port Authority, A.P. entered into an oral subcontract with Aubrey Green wherein the subcontractor would provide labor and material necessary to complete a fire alarm system on the project, according to the complaint.

Aubrey Green subsequently provided the defendant with $444,448.47 in labor and materials, the suit claims.

A.P., however, only provided Aubrey Green with payment in the amount of $298,650, leaving a balance of $145,798.47, the lawsuit states.

Aubrey Green, who had entered into the oral subcontract with the defendant in April 2011, last provided labor and materials to the project on March 30 of this year, the complaint alleges.

The plaintiff had provided A.P. with a breakdown of the amount owed back in November of last year.

To date, despite repeated demands, the defendants have failed to compensate the plaintiff with the proper amount of money, the suit claims.

“Aubrey Green performed its duties in a timely, professional, workman like manner in accordance with the Subcontract,” the lawsuit states. “Aubrey Green has fulfilled all conditions precedent for final payment.”

The lawsuit contains counts of breach of contract and quantum meruit against A.P. Construction. It also accuses the defendant of violating Pennsylvania’s Contractor and Subcontractor Payment Act.

The suit additionally contains a count of breach of bond obligation against Liberty Mutual Insurance Company, since Liberty, as surety, had issued the payment bond on behalf of A.P. to secure payment to subcontractors and material suppliers providing labor and materials to the project.

“Upon information and belief, Liberty executed such a bond and undertook the obligations of the Payment Bond, with the Philadelphia Regional Port Authority as obligee, to ensure payment to subcontractors and materials suppliers providing labor and materials to the project,” the lawsuit states. “By virtue of the Payment Bond issued by Liberty, it is bound to make such payments to all unpaid Project subcontractors and materials suppliers.”

Aubrey Green Electric seeks the amount of compensation it claims is owed as a result of its work on the marine terminal project, $145,798.47, in addition to attorney’s fees, interest, litigation costs and other court relief.

The case ID number is 120403465.

Mattioni

A neighborhood group in Northwest Philadelphia has filed suit against a Fort Washington, Pa. developer for allegedly reneging on an agreement by which the company would contribute matching funds toward the construction of a playground as part of a project to build a tract of residential homes in the community.

The East Falls Community Council, which represents citizens residing in Philadelphia’s East Falls neighborhood, claims in its lawsuit that Westrum Urban Land Development backtracked on a deal to put $50,000 toward the construction of a children’s playground at Inn Yard Park on Ridge Avenue.

The playground has since been constructed, with the community council and the City of Philadelphia pitching in to help make the project become a reality.

According to the complaint, which was filed May 2 at the Philadelphia Court of Common Pleas by Philadelphia attorney Eugene Mattioni, the EFCC entered into a contract with Westrum back in May 2006, which set forth various concerns the neighborhood group had with regard to the builder’s planned residential development project.

In order to secure the necessary zoning variances that would pave the way for the home construction project, Westrum needed to obtain the support of the EFCC, which it subsequently did, but only after agreeing to certain terms and conditions set forth by the neighborhood group.

One of the terms in the agreement between the plaintiff and the defendant was that Westrum would contribute $50,000 toward the construction of a neighborhood playground near where the homes were to be built, according to the lawsuit.

That money, which was to solely be used for the construction of the playground, never came through, the plaintiffs claim.

The lawsuit states that the EFCC met all of its obligations pursuant to the contract with Westrum, but that the developer has yet to pony up its share of the money that it promised to contribute toward the playground’s construction.

The complaint states that the EFCC raised more than $50,000 in cash and in-kind contributions of material and labor for the playground from parties other than Westrum.

The playground’s plans were later reduced in scope, the lawsuit claims, because of the lack of Westrum’s matching funds.

The complaint states that Westrum has since constructed and sold a “substantial” number of homes at the site of the residential development, and that it continues to do so.

In addition to its failure to contribute toward the playground, Westrum has also failed to construct an access road to be used by residents of the development, and it has failed to include in the home ownership documents an initial owner occupancy requirement, the lawsuit claims.

“The aforesaid covenants and conditions were made to obtain the support of EFCC for the variances essential to the development of Westrum’s project,” the lawsuit states.

The complaint accuses the defendant of breach of contract.

The community council seeks $50,000, plus interest and attorney’s fees.

The case ID number is 120403950.