Users Reporting Rashes and Irritation Due to Fitbit Charge

Posted in Personal Injury

Earlier this fall, Fitbit released its latest fitness tracking wristband called the Charge.  This is the first Fitbit product release since the company was forced to recall a similar device called the Force due to an estimated 10,000 plus complaints of rashes and skin irritation caused by the device.

Unfortunately, some early users of the Charge have reported similar skin irritation to that caused by the Force.  In an interview with Yahoo Tech, Fitbit CEO, James Park, has acknowledged this issue and suggested that users experiencing skin irritation remove the device and contact a dermatologist if symptoms persist.  See the full Yahoo Tech article here: https://www.yahoo.com/tech/reviewed-the-fitbit-charge-is-effective-but-104934385489.html.

The experienced attorneys at Stark & Stark are currently working with a team of attorneys to pursue claims on behalf of those individuals that have experienced injuries caused by the Fitbit Force.  With the report of similar injuries caused by the Fitbit Charge, our team has launched an investigation in an effort to determine the underlying cause of these injuries.  If you or someone you know has experienced a rash or skin irritation due to any Fitbit device, please contact Stark & Stark for a free consultation.

End Distracted Driving Now

Posted in Personal Injury

I was on a family vacation a few months ago and read a billboard that said, “If you want to speak with God, call Him.  If you want to meet Him, text.”  It was a pretty clever billboard, and I remember thinking, wow, even in Costa Rica? I sat at a traffic light on the way to work last week and counted 4 people talking in cells, and another two with their head and eyes staring into their laps.  I sat at that very same traffic light this morning and counted 3 cell phone talkers and a woman applying lipstick.  Granted we were all stopped at a red light, but let’s face it, those three calls were not going to miraculously end when the light turned green (they didn’t incidentally)

We have all read and seen the horrific stories in the news, and need only glance over at the cars around us to know that it is everywhere … even in Costa Rica!  Distracted driving takes many forms, whether it be tuning the radio, reaching for a fry, or talking and texting.  And whereas we don’t often hear about the accident caused when a parent reaches over to pick up a dropped sippy cup, we too often hear about the deadly crashes when a driver is texting (receiving or making).

From a legal standpoint, a distracted driver who causes property damage, personal injury and/or death is exposed to civil liability (monetary damages) and criminal liability (jail, probation, etc) depending on the circumstances and nature of the harm caused.  Whereas each case is different, each case also seems to have been avoidable.

Below is an informative website, EndDD.org (End Distracted Driving) and the Casey Feldman Foundation, established “to raise awareness and generate action against the epidemic of distracted driving.”  It was created by the parents of Casey Feldman, a college student, who was tragically struck and killed by a distracted driver in 2009.

If you or a loved one has been injured as a result of a distracted driver, contact Stark & Stark today for a free no obligation consultation.

Medicare’s 3-Day Rule

Posted in Personal Injury, Workers' Compensation

Many older patients, who are on Medicare or in a Medicare Advantage Plan, are shocked when they are hospitalized for less than 3 days only to find out that Medicare will not pay for nursing home coverage following this brief hospitalization.  These patients, who are technically admitted for “observation” for less than 3 full days, are in fact, being penalized for getting well faster than a Medicare patient who spends perhaps 4 or 5 days in the hospital.

Medicare is currently conducting pilot projects in hospitals across the country in which Medicare patients admitted to the hospital for less than 3 days, are permitted to continue their recovery in a nursing home, with payment made by Medicare.  The hope is that providers that drop the 3-day rule can reduce costs or keep them the same while improving the quality of care.  These pilot projects are conducted under a provision of the Affordable Care Act that created the Center for Medicare and Medicaid Innovations to develop ways of improving Medicare.  If you have any questions regarding the rules, contact Stark & Stark today.

U.S. Department of Health and Human Services Closes Medical Malpractice Reporting Loophole

Posted in Personal Injury

Generally, physicians and their liability insurance carriers are required to report all medical malpractice payments to the National Practitioner Data Bank.  Due to a legal loophole that exists in certain states, however, doctors and their insurance companies have be able to avoid reporting medical malpractice settlements that result from a mediation process.  In effort to close this loophole, U.S. Department of Health and Human Services Secretary Kathleen Sebelius recently signed a decision memorandum requiring doctors and medical liability insurance companies to report all medical malpractice payments made by or on behalf health care providers if even they are the result of a state-approved mediation process.

If you believe that you or a loved one has been the victim of medical malpractice, contact the experienced medical malpractice attorneys at Stark & Stark for a free consultation.

Is the Owner of Subsurface Rights an Owner for Purposes of a Mechanic’s Lien Claim?

Posted in Real Estate

The case of Linde Corporation v. Black Bear Property L.P. et al was decided by the Court of Common Pleas of Lycoming County and dealt with the issue of who is an owner for purposes of a mechanic’s lien claim. Specifically, is the owner of subsurface rights an owner under the Mechanic’s Lien Law? As noted by the Court, the owner of only subsurface rights can be an owner, but was not one in this instance.

The Plaintiff, Linde Corporation (“Linde”), filed a mechanic’s lien for labor and materials used to provide work on the subject property. Linde had entered into a contract with the owner of the property, Black Bear, LLC for the work to the surface of the property. Due to non-payment, Linde filed a Mechanic’s Lien Claim and a Complaint to Obtain Judgment and Enforce Mechanic’s Lien Claim. One of the other Defendants named in the Complaint was Penn Central Corporation, the owner of the subsurface rights in the subject property.

Linde argued that because it installed underground pipes, it had provided a benefit to Penn Central. Initially, the Court held that someone merely holding subsurface rights in a property can be an owner. However, in this instance, Linde did not enter into a contract with Penn Central. Because there is neither an actual nor an implied contract, the Court held that Penn Central is entitled to have the lien stricken against Penn Central. The Court held that in this instance, the Mechanic’s Lien Law should be construed to mean that only the property owner who actually contracts with the contractor can be subject to a mechanic’s lien.

Supporting Local Charity to Fight Cancer

Posted in Community

A few weekends ago, I attended a wonderful charity event sponsored by the “Hellraisers Bucks County, LEMC”.  The event was held at the Newportville Firehouse in Newpostville, PA on Sunday, November 2, 2014 to raise money for the mother of one of the members who was able to battle cancer thanks to the “Healing Consciousness Foundation” an organization that helps people overcome their battle with cancer. Although the name “Hellraisers” sounds intimidating for a motorcycle group, the members of this organization could not have been more welcoming and inviting,  for this fundraising event.  I want to thank Ron Zapolski, who is the “Ride Captain” for inviting me, and Stark and Stark to attend the event and for allowing us to contribute.

The Healing Consciousness Foundation (HCF), a non-profit organization, was founded by nationally recognized breast cancer surgeon, Dr. Beth Baughman DuPree. To find out more about the group and how you can help, please visit http://www.thehealingconsciousness.com/

Should you have a community event that you would like us to attend or sponsor, please contact us as we enjoy giving back to our community!

 

 

Installment Purchase Agreements for Real Estate

Posted in Real Estate

Traditionally, in Pennsylvania, an agreement of sale between seller and buyer “seals the deal” for the purchase of real estate. However, a prospective seller may also choose to have the buyer take possession of the property and “pay as he goes,” i.e. enter into an installment purchase agreement for the real estate. The core of such an agreement is the seller’s retention of actual title to the property (subject to the buyer’s right to possess it if there is no default under the agreement), until the installment payments toward the purchase price are all paid by the buyer. Afterward, the seller conveys legal title to the property to the buyer.

Once fairly common in central PA, installment purchase agreements today can be found in all areas of the Commonwealth, including the Philadelphia area.

The problem comes when one of these agreements goes into default (usually for non-payment of installments). Because the seller remains in title, it’s not like he has a mortgage he can foreclose on and obtain the property at sheriff’s sale. The answer lies in the Pennsylvania Installment Land Contract Law (“PILCL”), 68 Pa. C.S. sec. 902 et seq. 

Under the PILCL, different remedies are available to the seller seeking relief on a defaulted installment purchase agreement. In addition, the statutory scheme does not rule out other possible relief available under Pennsylvania law, such as filing a quiet title action. If you are a seller of real estate under an installment purchase agreement in default, contact Stark & Stark for expert enforcement of your rights.

Good News for Commercial Lenders: Your Open-End Mortgage Could Have Priority

Posted in Business & Corporate

The Pennsylvania Legislature recently enacted legislation which amends portions of the Mechanics’ Lien Law, 49 P.S. § 1101, et. seq. (“MLL”), and provides a statutory fix to the Kessler decision.

The Superior Court of Pennsylvania’s decision in Commerce Bank/Harrisburg, N.A. v. Kessler, issued in May 2012, caused a fundamental change in the industry’s understanding that open-end mortgages for construction loans had priority over mechanics’ liens. Under the MLL at that time, a mechanics’ lien for construction improvements had priority from the date of visible commencement of work, but was subordinate to an open-end mortgage where the proceeds were “used to pay all or part of the cost of completing erection, construction, alteration or repair of the mortgaged premises. . .” The Kessler Court determined that, in order for this exception to apply, all of the loan proceeds had to be used to pay the hard construction costs, and nothing else. As such, if any of the loan advances were used to pay any other costs associated with the construction, and unpaid contractors and/or subcontractors filed mechanics’ liens to recover money owed, those liens would take priority over the loan.

On September 7, 2014, Act 117 of 2014 took effect and changed the landscape. Act 117’s amendments to the MLL provide that a construction loan secured by an open-end mortgage will take priority over a mechanics’ lien claim (even where visible commencement of work occurred prior to the recordation of the mortgage) if 60% of the loan proceeds are “intended to pay or used to pay” all or part of the “costs of construction.” The amendments include a broad definition of “costs of construction” which includes items such as insurance, taxes, utility fees, and closing fees. The amendment applies to mechanics’ liens perfected on or after September 7, 2014, even where visible work commenced prior to that date.

Mode of Operation

Posted in Personal Injury

A while back I blogged about “mode of operation,” the legal doctrine used in negligence cases, primarily slip and falls, against businesses whose “method of doing business create an inherent risk of injury” to its patrons.  Put another way, there are some businesses who, by the very nature of the way they are set up, are more apt to cause or contribute to the cause of an accident.

Traditionally in premises liability cases, a plaintiff must prove a defendant business had actual or constructive notice of a dangerous condition.  Generally a plaintiff must show that the business knew (notice) of the condition, and thereafter acted negligently, in either fail do anything to correct the condition, or by doing to make the condition worse.

Because some businesses are such that the mode in which they operate is more susceptible to accidents, the mode of operation serves as an exception to the traditional rules when it comes to having to prove notice.  Now, I am in no way sating a grocery store produce aisle is, in the traditional sense, more dangerous than a construction site.  I am merely suggesting, and the law provides, that when businesses derive a benefit (money) from the customers it invites in it stores, and permits them to hand pick fruit, vegetables, etc … and stuff these products fall to the floor, along with the ice and water usually keeping these items fresh …. Then it is not necessary for the plaintiff to prove a particular broccoli leaf, or carrot spear was the culprit. The next time you are in a grocery store, look at where they place their mats (if any).  You will see them in the frozen foods, produce, etc.  you will most likely NOT see them in the Hallmark card section, right?

The mode of operation line of cases (not cited here) are most typically associated with self-service grocery stores, for example, where plaintiff slips on a grape, or string bean, or ice chip, that falls from a self-service bin.  They can also be associated with injuries caused by the actual self-service itself, as when a customer is injured pulling a large or awkward product off a high shelf at a Home Depot or Lowes.  In 2001, our courts extended this doctrine to include common areas of a shopping malls, where someone is injured in an area where patrons were permitted to carry food and drink.  (Ryder v. Ocean County Mall).

The doctrine was again recently considered by our Appellate Court in Lebrio v. The Pier Shops at Caesar’s.  In Lebrio, plaintiff suffered injuries after a fall in the common area of the Pier Shops at Caesar’s in Atlantic City.

She had been walking in a common area on the second level of The Pier Shops when she slipped on a clear liquid and fell.  After falling she observed a cup and lid on the ground along with an area of (clear) wetness. She brought a negligence claim against the store owners and janitorial company.

After all discovery, defendants moved for summary judgment, claiming plaintiff failed to present any evidence that defendant had either actual or constructive notice of the spill, a pre-requisite to a premises liability case.  This motion was denied, and the matter tried to a jury.  At the close of the evidence the judge permitted the mode of operation (jury charge) against the defendant-owners.  The jury ultimately returned a substantial plaintiff’s verdict and defendants appealed.

On appeal, the Court found not error in this regard. The decision is attached.  In it the Appellate court gives a concise summary of New Jersey Premise liability, including:  a business owner owes to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation and that a plaintiff bears the burden of proving that the premises owners breached that duty.  (citations omitted).

The court then discusses the notice requirement, including:  Owners of premises generally are not liable for injuries caused by defects for which they had no actual or constructive notice and no reasonable opportunity to discover; and ordinarily an injured plaintiff must prove the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. (citations omitted).

The court next discusses the genesis of the mode of operation exception to the notice requirement, for cases “when the shopkeeper, through acts of its agents or patrons, creates a dangerous condition.” In these cases, as the trial court found in Lebrio, the plaintiff is relieved of showing actual or constructive notice of the dangerous condition and is entitled to an inference of negligence.  This in turn shifts the burden of production to the defendant, who can only avoid liability if it shows it acted reasonably under the conditions.

The court confirmed that not all premises liability cases warrant the mode of operation charge.  “To trigger mode-of-operation liability, a plaintiff must identify facts showing a nexus between the method or manner in which the business is operated when extending products or services to the public, and the harm alleged to have caused the plaintiff’s injury.” (citations omitted)

Finally, the court confirmed that the doctrine does not automatically apply merely because a defendant operates a specific type of business.  Rather, “the unifying factor in reported opinions is the negligence results from the business’s method of operation, which is designed to allow patrons to directly handle merchandise or products without intervention from business employees, and entails an expectation of customer carelessness.”

Stark & Stark has been successfully representing clients in slip and falls like the ones mentioned above for many years. If you or a loved one has been injured, contact us today for your free consultation.

 

Alternatives to Foreclosure

Posted in News & Events

Stark & Stark Shareholder Brian H. Smith, member of the firm’s Bankruptcy & Creditor’s Rights Group, will be presenting “Alternatives to Foreclosure” at the Pennsylvania Bar Institute’s seminar titled, “ABCs of Foreclosure Proceedings.” The event will be held from 8:30AM – 3:30PM on Tuesday, November 18, 2014 at the CLE Conference Center in Philadelphia, Pennsylvania.

For more information, or to register to attend, please click here.