On Friday, February 25, 2016, United States District Court Judge Stengel issued a written opinion dismissing former Pennsylvania State University coaches Joseph “Jay” Paterno’s and William Kennedy’s lawsuit against their former employer, Penn State.

In Paterno, et. al v. The Pennsylvania State University, No. 14-4365, former Penn State assistant coaches Paterno and William commenced litigation in the United States District Court of the Eastern District of Pennsylvania alleging that their former employer:

  • Violated their civil rights for the deprivation of their liberty and property interest without due process of law pursuant to 42 U.S.C. 1983;
  • Intentionally interfered with prospective contractual relations;
  • Committed civil conspiracy associated with the deprivation of their federal civil rights;
  • Violated Pennsylvania Wage Payment and Collection Law, 43 P.S. 260, et.; and,
  • Breached the contracts between them.

Continue Reading United States District Court Judge Dismisses Jay Paterno’s Lawsuit Against Penn State

The Honorable Karen Shreeves-Johns of the Court of Common Pleas of Philadelphia recently ruled that a primary care physician cannot be qualified to testify as an expert on laser spine surgery. The case involved a motor vehicle accident in which the plaintiffs sought to have a Family Practitioner testify with regard to the necessity for laser spine surgeries performed after the accident. The plaintiffs had sued Comcast of Philadelphia and one of its employees.

The jury found that the defendants were not the factual cause to one of the plaintiffs. For the other plaintiff, although the negligence did cause injuries, they were awarded a de minimus $5,000. The plaintiffs then appealed Judge Shreeves-Johns’ ruling, which precluded their proffered expert, family physician Dr. Gregory Temple, from offering opinions on the reasonableness and necessity of the spine surgeries at issue.

Judge Shreeves-Johns said, “While medical witnesses may have expertise in overlapping areas and some doctors may be more qualified than others to testify on certain medical practices, a medical witness must have some familiarity with the particular technique or surgery at issue.” She went on to add, “Simply put, an expert must demonstrate some knowledge of the specific subject matter upon which he promises to express an opinion.” The plaintiffs relied on a 1965 opinion, Comm. v. Morris and a 1974 opinion, Ragan v. Steen.

Judge Shreeves-Johns felt that plaintiffs’ counsel was creatively “stretching and manipulating the court’s decision in Ragan,” wherein the court determined that Pennsylvania ought to join other states which had since recognized the absurdity of permitting witnesses to testify as experts simply by virtue of their licenses or degrees, without any professional experience to the actual matter with which they were testifying. Although Judge Shreeves-Johns felt that Dr. Temple’s medical school training familiarized him with basic parameters of medicine, his general practice did not mean he was a specialist in an area of medicine at issue—in this case, laser spine surgery.

This case certainly falls in line with many other jurisdictions, including New Jersey, which continue to compel that any expert opining a breach of a standard of care must have similar qualifications to the defendant in question. Additionally, these experts who opine specialized procedures for the plaintiff(s) must be physicians or medical professionals who perform those same procedures regularly as part of their own practice. Currently, the decision by Judge Shreeves-Johns is being appealed by the plaintiff.

An initial meeting was held in late February 2015 to update classroom and behind-the-wheel training requirements for professional truck and bus drivers. The Advisory Committee for this meeting was formed by the U.S. Department of Transportation Federal Motor Carrier Safety Administration (FMCSA).

In December 2014, the FMCSA initially announced that they would be forming a committee to examine minimum training requirements. This meeting would include determining the duration of classroom sessions and behind the wheel training, as well as weighing the differences between the “accreditation” versus “certification” of commercial drivers’ license training programs. Additionally, the FMCSA planned to reexamine instructor qualifications as well.

This meeting was first prompted by the Moving Ahead for Progress in the 21st Century Legislation (MAP-21), which requires the FMCSA to establish new regulations for entry level driver training. This new legislation created a certificate system for the requirements drivers must meet, as well as requiring training providers to aptly demonstrate that their training meets uniform standards. These new requirements would apply to any individuals who are obtaining a CDL to operate commercial motor vehicles pursuant to 49 CFR 383.5.

In August 2014, it was announced that the FMCSA would explore the process of discussing and negotiating any new rules that might be necessary for entry level driver training. Later that December, it was further announced that the FMCSA would instead establish a committee that would develop the proposed regulations for the entry level driver training.

The Administration intends to complete the regulatory negotiation process for proposed rules within the first half of 2015 and will publish notice of the proposed rule making sometime in 2015, with the final rules to be completed by 2016. It is strongly encouraged that anyone looking to obtain a CDL to operate commercial motor vehicles pays close attention to this process, as it will be affecting them soon.

There are few among us who have not, through either direct experience, reading the paper or watching the eleven o’clock news, dealt with or heard about home improvement contractors who have done anything but improvement work. Whether a contractor takes deposit monies and runs (having never bothered to show up to do the work), does a substandard job, charges above and beyond a contracted price, or fails to honor a warranty for work performed, homeowners can be left unsure about what to do next. One frequent reason is that the “out of pocket” expense to a homeowner may be less than many attorneys consider worth filing suit over, even in small-claims court (Municipal Court in Philadelphia; Magisterial District Courts elsewhere in Pennsylvania).

However, Pennsylvania statute, including the Pennsylvania Unfair Trade Practices and Consumer Protection Law, can be the basis for relief in excess of out of pocket costs (including treble damages and attorney’s fees) for home improvement contractor troubles. So before you “write off” going after that contractor because you think it isn’t worth an attorney’s time, please contact Stark & Stark. We may be able to assist in getting you back your out-of-pocket costs…and more besides.

From time to time, a “lodging package marketer” or “prepaid vacation provider” makes the news, with consumers claiming that such entity engages in tactics such as:

  • Vacation packages that are provided (often at a steep fee) ultimately do not measure up to what was expected;
  • Strong-arm sales pitches, with consumers given no time to think about or consider a package before agreeing to it; and/or
  • No right to rescind or cancel a package being provided.  Such tactics may fall under the scope of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), enabling an aggrieved consumer to monetary relief.

At Stark & Stark, we can proceed with claims against purveyors of deceptive vacation packages to seek all available monetary relief under the UTPCPL.  If you feel that you have been victimized by such an entity, do not hesitate to contact us.

“The Apology Bill,” or “the Benevolent Gesture Bill,” passed the House 200-0 on October 22, and was signed by Governor Corbett on October 23. This new law is the culmination of eight years of proposed legislation. It does not allow mere statements of an apology to be admissible at trial, but does allow statements that include an admission of negligence or fault.  

This bill, similar to those approved in at least 36 other states including New Jersey, allows healthcare providers – including doctors, hospitals and nursing homes – to apologize when a procedure does not go as planned.
The new law will not eliminate liability on the part of doctors or hospitals or prevent medical malpractice suits.  However, research suggests it will likely reduce the number of lawsuits, medical professionals claim.
Both trial lawyers who supported the bill and medical professionals said they believe many patients and families would not have filed malpractice suits had they been given a timely explanation, along with an apology, for an unanticipated outcome.

In Pennsylvania, “The Landlord and Tenant Act of 1951” (“The Act”) governs all residential leases entered in Pennsylvania. The Act provides certain terms in the relationship between a landlord and tenant that cannot be waived by the tenant, even where the written lease has provisions contrary to the Act. 

A common issue that arises between landlords and tenants in residential leases governed by the Act is the handling of the tenant’s security deposit at the conclusion of the lease. Residential landlords should be wary of the Act’s remedies for improperly withheld security deposit monies. The Act requires a landlord under a residential lease to provide the now former tenant with a written list of the damages to the premises that the landlord claims are the tenant’s responsibility within 30 days of the termination of the lease.

The list of damages must be accompanied by payment of the difference between the amount claimed for the damages and the amount of the security deposit with interest.  If a landlord fails to provide the written list of damages and repayment of security deposit amounts in excess the amount of damages claimed within the 30 day window, they will be deemed to forfeit the rights to withhold any portion of the security deposit or to sue the tenant for damages to the premises. If the landlord fails to pay the amount of the security deposit for which no claim is made within 30 days of the termination of the lease, the landlord can be held civilly liable for double the amount of the security deposit wrongfully withheld. A tenant’s claim for double the security deposit can be mitigated if the landlord can prove the amount of actual damages done to the premises to the satisfaction of the Court. This procedure may be employed by a tenant regardless of the terms of the written lease agreement or other writing between the landlord and the tenant.

This blog is part of an ongoing series discussing the Pennsylvania Mechanics’ Lien Law. For more information on Mechanics’ Liens in Pennsylvania, click here.

A Mechanics’ Lien Claim can present problems for Owners seeking to sell or refinance a home or other real estate.  Likewise, higher-tiered Contractors and Subcontractors can encounter headaches where a Subcontractor files a Lien Claim of questionable legitimacy or for defective work, jeopardizing the Contractor’s reputation or relationship with customers. 

The Pennsylvania Mechanics’ Lien Law presents remedy to Owners and Contractors for cases in which the Mechanics’ Lien Claim is disputed, but where a time-sensitive transaction concerning the property must be completed.  The Law allows an Owner to Discharge the Lien upon either payment of cash in the amount of the Lien into the Court, or upon the acquisition of a Surety Bond in double the face amount of the Lien (or a lesser amount upon approval of the Court).   This remedy may also be available to a higher-tiered Contractor, however the Contractor must first successfully Petition the Court to intervene in the case, and then move to pay the cash into Court or substitute the Surety Bond.

It is important to note some of the legal fictions involved in Mechanics’ Liens to better understand the import of this procedure.  A Mechanics’ Lien Claim is technically an action against real property, and not against an individual or entity.  When the Court grants the “Discharge” of a Mechanics’ Lien Claim upon payment into Court or entry of a bond, this does not extinguish the Claim, but merely substitutes the cash or bond for the real property, and removes the Lien from the chain of title to the real property so that a transaction may occur without first satisfying the Lien itself by payment to the Claimant.  Even after Discharge of the Lien Claim, the Claimant may prosecute the Claim seeking the cash held by the Court or payment under the surety bond, and therefore the Owner or intervening Contractor must defend an action at law upon the Mechanics’ Lien Claim.


I recently spoke with public relations firm representing the Estate of E. Pierce Marshall, Elaine T. Marshall, E. Pierce Marshall, Jr. and Preston Marshall who expressed a difference of opinion regarding the facts and procedural history of the Marshall litigation and asked me to provide this information to our readers.  I have added their comments below in italics.

A 2006 Supreme Court Case (Opinion) arising from a story most laypeople learned from supermarket tabloids reaffirms an age old exception to the jurisdiction of the Federal Courts. As many people know, deceased model and celebrity personality Anna Nicole Smith (then aged 26) married billionaire Oil Industry magnate J. Howard Marshall when Marshall was 89 years of age.  Famously, the marriage lasted fourteen months, until Marshall’s death, leading many to comment that Marshall must have died a happy man.

Following Marshall’s passing, Smith (who’s real name was Vicky Lynn Marshall)

Here correct name is: Vickie. Nobody commented J. Howard Marshall II was happy about his relationship with Vickie when he died. Testimony in the Houston probate trial from people who knew J. Howard was that he said the marriage was a mistake and that he was not happy.

became embroiled in a protracted dispute over the estate of her late husband with the deceased billionaire’s son and her own adult step-son, E. Pierce Marshall.  While Smith’s unrelated Bankruptcy proceedings were pending in Bankruptcy Court in California, Pierce Marshall asserted a claim against Smith, seeking to have the Bankruptcy Court declare that a claim which he intended to bring against Smith for defamation could not be discharged in Bankruptcy.

Before the Bankruptcy Court, Pierce Marshall claimed that Smith had defamed him shortly after the elder Marshall’s death by making statements through her lawyers accusing Pierce Marshall of engaging in forgery, fraud, and overreaching in order to deprive Smith of certain testamentary gifts which her husband had made for her benefit.  In response, Smith pleaded the affirmative defense of truth – asserting that Pierce Marshall’s claims should fail because the content of her lawyers’ statements were true, and filing a counterclaim for tortuous interference with a testamentary gift that she had expected from the elder Marshall.

Pierce Marshall had already won an $8 million libel verdict against her attorney in Texas state court, concerning the same facts and statements. He was seeking to preserve his future claims against Vicki during the bankruptcy process.              

The Bankruptcy Court granted summary judgment in favor of Smith on the issue of his claim for defamation, and after a trial on the merits, entered judgment in favor of Smith and against Pierce Marshall, finding that he had in fact conspired to falsify documents, and alter and destroy a trust instrument which the late J. Howard Marshall had directed his lawyers to prepare for the benefit of his wife, Anna Nicole Smith.

The Bankruptcy Court never held a trial on the issues. Instead the court arbitrarily ruled that the defendant was guilty of discovery abuse. The Bankruptcy Courts damage award was based solely on that issue. All this was taking place while the Marshall estate and all the issues Vicki raised were being heard during a 5 and ½ month long jury trial in a Texas Probate Court. Pierce Marshall prevailed in that case. The Texas Court specifically ruled that it had considered every issue before the Federal Courts.

Pierce Marshall then sought District Court review of the Bankruptcy Court’s findings, after which the District Court adopted the Bankruptcy Court’s findings and entered an award of compensatory damages in the amount of $44.3 million, and following a finding of “overwhelming” evidence of Pierce Marshall’s “willfulness, maliciousness, and fraud,” the District Court awarded an equal amount of punitive damages.

The District Court vacated the Bankruptcy Court’s decision and discovery sanctions and held a de novo review. It agreed with Pierce Marshall’s attorneys that the Bankruptcy Court overstepped its authority when it took the case as the matter was not a core bankruptcy proceeding. In addition, the District Court did not adopt any of the Bankruptcy Court’s findings. Instead it held a brief de novo review before it issued its decision, after failing to allow Pierce Marshall’s to present a single witness.

Predictably, Pierce Marshall appealed the District Court’s judgment to the Ninth Circuit Court of Appeals, seeking to have the District Court’s judgment vacated, asserting that the Bankruptcy Court and District Court lacked the authority to adjudicate Smith’s counterclaims citing the “probate exception” to the general jurisdiction of the Federal Courts.  The Ninth Circuit reversed the District Court’s judgment, and Smith appealed to the United States Supreme Court.

The Ninth Circuit vacated and remanded the District Court opinion with instructions.

The United States Supreme Court reversed the Ninth Circuit, finding that the “probate exception” did not apply to Smith’s counterclaims, and therefore that the Bankruptcy Court and District Court did have jurisdiction over Smith’s claims.

The United States Supreme Court only held that the Federal District Court had jurisdiction over claims such and Vickie’s and expressly held that the core-non-core bankruptcy jurisdiction issue was a matter left to be decided by the Ninth Circuit on remand. 

            Did the ruling include the Bankruptcy Court or just the District Court????

In a majority opinion penned by Justice Ginsburg, the Supreme Court clarified the Court’s prior holdings establishing a probate exception to Federal Jurisdiction.  The Court first noted that, although nothing in the text of the Constitution compels the exception to jurisdiction, such an exception was recognized by the English Courts of Chancery – which is the correlative jurisdiction granted to the Federal Courts in the First Session of the First United States Congress under the Judiciary Act of 1789.  The Court then explained that the probate exception did not preclude all claims related to or arising from a decedent’s estate, as the Ninth Circuit had erroneously concluded, but that claims for the annulment or probate of a will or the administration of a decedent’s estate should properly remain in the State Courts.

The Supreme Court never ruled on the merits of Vicki’s claims. The issue of whether those same issues had already been decided, in Pierce Marshall’s favor, by the Texas Probate Court is one of the many appellate issues still before the 9th U.S. Circuit Court of Appeals.


In Pennsylvania, where a “cloud” upon a title to real property exists, a party may initiate a civil action in order to adjudicate rights to the property.  Such actions fall under two related kinds:  1) Actions to Quiet Title, and 2) Actions in Ejectment. 

Actions in Ejectment are appropriate where a property owner seeks judicial relief to assert his right in real property where another party has encroached upon the former’s property.  A common scenario for an Action in Ejectment would be one owner’s erection of a structure which encroaches upon the aggrieved party’s property.  Essentially, an Action in Ejectment will lie where a party has usurped use or possession of the aggrieved party’s property.

In contrast, an action in Quiet Title will lie “where an action in ejectment will not lie” and may be utilized  to “determine any right, title, or interest in the land or determine the validity or discharge of any document, obligation or deed affecting any right, lien, title or interest in land.”  Actions in Quiet Title may also be brought to compel another party to initiate an action in Ejectment, compel the filing, recordation, cancellation or surrender of a document affecting an interest in land, admit the validity or invalidity of a document affecting an interest in land, or to obtain possession of land sold at a judicial or tax sale.

Common circumstances where a Quiet Title Action is appropriate include such divers claims as establishing legal title as a consequence of adverse possession, compelling a party to record a document evidencing the satisfaction of a lien, adjudicating the existence or lapse of an easement, and cancelling a fraudulent or erroneous deed.