On Friday, the Superior Court issued a decision that should serve both as a cautionary tale to attorneys as well as a reminder that foreign corporations must register to do business in Pennsylvania to bring an action in its courts. See Drake Manufacturing Company, Inc. v. Polyflow, Inc., No. 959 WDA 2014 (Pa. Super. Ct., Jan. 23, 2015).

Drake Manufacturing is a Delaware Corporation with operations in Pennsylvania.  Polyflow is a manufacturer of tubing products located in Oaks, Pennsylvania.  Over a period of 8 months in 2008 and 2009, Polyflow entered into multiple contracts with Drake for the purchase of couplings used in Polyflow’s manufacturing process.  In 2009, Drake sued Polyflow in the Warren County Court of Common Pleas alleging a failure to pay for good in accordance with the parties’ contracts.

Polyflow raised the issue of standing in its answer to Drake’s complaint, asserting that Drake failed to obtain a certificate of authority to do business in Pennsylvania.  Section 4121 of the Business Corporation Law provides that “a foreign business corporation, before doing business in this Commonwealth, shall procure a certificate of authority to do so from the Department of State…”  15 Pa.C.S. § 4121(a).  The penalty for failing to do so is set forth in Section 4141 (titled “Penalty For Doing Business Without Certificate Of Authority”), which states that “a nonqualified foreign business corporation doing business in this Commonwealth within the meaning of Subchapter B shall not be permitted to maintain any action or proceeding in any court of this Commonwealth until the corporation has obtained a certificate of authority.” 15 Pa.C.S. §4141(a).

Despite having received notice of the lack of standing issue, Drake failed to obtain a certificate of authority from the Department of State prior to or during trial.  Polyflow moved for compulsory nonsuit at the close of Drake’s case-in-chief.  The trial court denied Polyflow’s motion and entered a verdict in favor of Drake in the amount of $291,766.61.  Polyflow filed timely post-trial motions seeing judgment n.o.v. raising, among other things, the standing issue.  In response, Drake submitted a certificate of authority more than two months after the verdict.  The trial court denied the post-trial motions and Polyflow appealed.

The Superior Court reversed, holding that Drake lacked standing to file a suit in the first instance, and that Drake continued to exhibit a lack of reasonable diligence by failing to obtain a certificate of authority during the pendency of litigation.

Further, although a foreign corporation may comply with Section 4121 by obtaining a certificate of authority “during the course of a lawsuit,” see, e.g., International Inventors Inc., East v. Berger, 363 A.2d 1262, 1264 (Pa. Super. Ct. 1976), Drake could not do so during the post-trial motion stage.  The Superior Court held that Drake’s late presentation of a certificate of authority was barred by the Pennsylvania Supreme Court’s decision in Claudio v. Dean Machine Co., 831 A.2d 140 (Pa. 2003), which prohibits a party from submitting evidence in post-trial proceedings that the party failed to submit during trial due to a lack of reasonable diligence.

The Superior Court reduced its 27-page decision to one sentence:

 Although we can understand the trial court’s reluctance to rule in Polyflow’s favor under these circumstances, the fact remains that (1) Polyflow timely raised the defense of Drake’s lack of capacity to sue, (2) Drake failed to cure its lack of a certificate of authority during the next 3½ years, (3) Drake failed to refute this defense at trial, and (4) this defense was fatal to Drake’s case.

Polyflow’s counsel raised the issue of lack of capacity and apparently kept it in his back pocket until conclusion of Drake’s case in chief.  This decision should serve as a reminder to always review and re-review defenses raised in new matter prior to trial, and to be mindful of Section 4121, which is often overlooked by foreign corporations seeking to litigate disputes in Pennsylvania’s courts.

The Superior Court recently weighed in with an interesting decision involving due diligence in the context of service by publication when potentially interested parties to a litigation cannot be located.  See Sisson v. Stanley, No. 1347 MDA 2013 (Pa. Super. Ct., Jan. 27, 2015).

In 1953, Joseph Stanley transferred all right, title, and interest in real property located in Susquehanna County, Pennsylvania to Pauline Battista, subject to a reservation of mineral and gas rights.  The present owners of the property, Donald R. Sisson and Mary Sisson,  acquired the property in 1986 from Battista subject to the same reservation.

In 2010, a producer of natural gas, Chesapeake Appalachia, LLC, approached the Sissons with a proposed lease to extract shale gas. Chesapeake informed the Sissons of the cloud on title, prompting the Sissons to file a quiet title action in the Susquehanna County Court of Common Pleas in April 2010.  In their quiet title action, the Sissons sought, in part, to extinguish the reservation rights retained by Stanley and/or his heirs.

The Sissons obtained permission to perform service by publication, claiming that they were unable to locate any heirs of Mr. Stanley.  The Sissons submitted an affidavit informing the trial court of the steps taken to locate an heir, which included:

1.  Checking the public records in the Recorder of Deeds;
2.  Searching local telephone directories for individuals with similar names; and
3.  Checking various internet sites for the names and possible locations of Stanley and/or his heirs, executors, and assigns.

In August 2010, the trial court entered a final order quieting title.  Two months later, the last remaining sibling of Mr. Stanley filed a petition to open the judgment claiming improper service.  The trial court granted the petition and opened the judgment. In June 2013, after more than two years of litigation, the trial court entered judgment in favor of the surviving sibling in response to a motion for judgment on the pleadings.  The Sissons appealed to the Superior Court.

In affirming the trial court, the Superior Court held that the Sissons failed to exercise reasonable diligence in locating a living heir of Mr. Stanley.  Among other things, the Sissons failed to:

• Search public records in the Register of Wills office, which would have revealed Mr. Stanley’s will and beneficiaries;
• Perform a search of local death records or newspaper archives for Mr. Stanley’s obituary, which identified his surviving relatives; and
• Set forth in detail efforts taken on internet to identify Mr. Stanley’s heirs.

With respect to the last point, the Superior Court stated:  “[g]iven the ease of identifying and using sophisticated Internet services to trace ancestry and family history, it is inconceivable that counsel, employing good faith efforts, was unable to locate a single . . . heir.”

The Superior Court also considered the Sissons’ argument that the original 1953 deed could not possibly have intended to reserve rights to Marcellus Shale gas when (a) the existence of Marcellus Shale gas was not known at the time, and/or (b) commercial exploration was not possible in 1953.  The Superior Court rejected this argument holding that a clear reservation of rights referencing “gas” is enough.

Today the Pa Superior Court affirmed a decision and verdict of the Northampton County Court of Common Pleas.  Not a big deal. However in the decision there is mention of the fact that an expert witness brought his file to the witness stand and opposing counsel asked to see the file. Again, not a big deal. However, the expert had communications between himself and counsel in the file. That is a big deal.  The Pa Superior Court determined that the issue was waived below and on appeal so the Court did not address the substantive issue.

This case is an important reminder regarding expert witnesses.  First, they should not be bringing their files up to the witness stand. Second, if they do it should only be because it is necessary for their testimony. If it is necessary then counsel should review that file beforehand and remove any documents subject to the attorney client and/or work product privilege. Even if you prevail on your objection to opposing counsel reviewing the file or you prevail in having documents removed, it is a bad situation. The Jury will not understand the legal objections and will think that you, your client and/or the expert are hiding something.

Today the Pa Superior Court issued a published decision in which the Court  went into a detailed analyses of coal, oil and gas rights in Pennsylvania. Part of the decision turned on the Pa Supreme Court decision of US Steel v. Hoge 468 A. 2d 1380 and part turned on the Court’s interpretation of deeds which date back to 1932.

While the decision is interesting the alarming part of the decision is that deeds that were drafted over 75 years ago can have an important impact on oil and gas ownership rights today. Furthermore, when those deeds were drafted the drafters may not have been aware of the value of certain oil and gas rights today.

In summary, as a result of a 1932 deed the Kennedys retained coal and oil and gas rights in a tract of land.  In subsequent deeds the rights to the coal were acquired by Console Energy Inc. (“Console”)  The Kennedys retained the oil and gas rights.  At the time that the coal and oil and gas rights were excepted and reserved in the 1932 deed it was unknown that there was value to methane gas contained in the coal which is referred to as coalbed methane gas.

In recent years Console began to extract the coalbed methane gas since they owned the coal. The Kennedys brought an action to quiet title, among other actions, claiming that they as the owners of the oil and gas rights were also the owners of the coalbed methane gas.  The trial ruled again the Kennedys and the Pa Superior Court affirmed. In doing so, the trial court relied upon the Hoge case which found that the owner of the coal is the owner of the coalbed methane gas.  The Pa Superior Court followed Hoge and in doing so found that Hoge must be followed unless the deed provided that the parties intended that the owner of coalbed methane gas be separate and apart from the owner of the coal.  In this case, the court found that the language in the 1932 deed reserving the oil and gas rights was not specific enough to retain the rights to the coalbed gas.

So what can you learn from this decision.  First, if you are representing a client who is purchasing a property you will need to carefully review any old deeds and determine what rights were and were not retained. Second, in drafting deeds and reserving rights you need to be careful in what rights are and are not reserved. The problem is when this deed was drafted there was no value in coalbed methane gas. However, with modern technology what might be considered waste or a nuisance today might be valuable to someone else tomorrow. A frightening reality!

Today the Pa Commonwealth Court held that New Life Church waived all issues on appeal by failing to file post-trial motions. The impact of the decision is that a former church building located at  2826 through 2846 N. 9^th Street in Philadelphia will be demolished by the City of Philadelphia.

At issue on appeal was whether an injunction hearing was a “trial” for purposes of Pa Rule of Civil Procedure 227.1. If it was a trial then post-trial motions were required to be filed to preserve issues for appeal. If it wasn’t a trial then rule 227.1 was inapplicable.  The Pa Commonwealth Court found that the injunction hearing was a trial. Thus the church waived all issues on appeal by failing to file post-trial motions. The city can now proceed to demolish the old church building.

The lesson to be learned is that when in doubt file a post-trial motion. There is no harm.  The harm is greater if you don’t file one as compared to filing one when not required.

I previously posted on this case when a panel of 3 Superior Court Justices affirmed a Lower Court decision to grant summary judgment in favor of the company who employed a valet service.

Now the Court En Banc has voted 6-3 to affirm the Lower Court decision. In doing so the Court has ruled on a case of first impression in finding that there is no duty owed by a parking valet to withhold keys of an intoxicated driver.  I expect that a Petition for Allowance of Appeal might be filed with the Pa Supreme Court.

Copyright: thesupe87 / 123RF Stock Photo

The sweeping changes to the National Flood Insurance Program imposed by recent federal legislation continue to have a broad impact at the state level. As federal flood insurance subsidies are gradually withdrawn, states are examining how they can close the gap to make the increasing premiums more affordable. In Pennsylvania, the Pennsylvania House of Representatives just introduced House Bill 1299 — the Flood Insurance Premium Assistance Task Force Act (the “Act”). Pennsylvania is one of the most flood-prone states in the nation with about 83,000 miles of waterways. In 2012, as a result of the Biggert-Waters Flood Insurance Reform Act of 2012 and other related legislation in 2014, premiums for flood insurance have skyrocketed making coverage out of reach for many property owners. In addition, FEMA’s continued re-mapping efforts have resulted in the re-designation of properties, once in low to moderate flood risk areas, to high-risk flood zones, resulting in a corresponding increase in flood insurance premiums.

The Act is designed to help property owners faced with premium increases. If enacted, the Act will establish a task force charged with reviewing and analyzing the laws and procedures regarding the administration of flood insurance. Within six months of the effective date, the task force is expected to issues a final report to the Governor and the legislature recommending the following:

1. Potential programs that provide premium discounts;
2. Potential programs that create incentives for local governments to undertake or continue flood mitigation efforts; and
3. Implementation of changes in state statutes and practices, policies and procedures relating to the administration of flood insurance

The creation of the task force is just the latest in a series of efforts to minimize the impact of rising flood insurance premiums on consumers. Earlier this year, Representative Thomas P. Murt of Southeastern Pennsylvania also introduced House Bill 1029 — The Flood Insurance Premium Assistance Program Act. House Bill 1029 proposes a program that will provide eligible homeowners with a 15% flood insurance premium subsidy designed to encourage the purchase of flood insurance. Both Bills have been referred to the Legislature’s Insurance Committee and are awaiting a vote. Similar initiatives are being pursued by states throughout the country.

Yesterday the Pennsylvania Supreme Court issued a decision on an issue of first impression in Pennsylvania. The issue was: “whether an insured forfeits insurance coverage by settling a tort claim without the consent of its insurer, when the insurer defends the insured subject to a reservation of rights, asserting that the claims may not be covered by the policy.” Stated another way: “whether an insurer is liable under its insurance policy for a settlement made by its insured without securing the insurer’s consent, when the insurer is defending the claim subject to a reservation of rights?”

Typically court decisions favor insurance companies and not the insured. The Pa Supreme Court has now changed the landscape in Babcock & Wilcox v. American Nuclear Insurers et. Al.    

• First, the test is no longer a bad faith test.
• Second, an insured is entitled to settle a case without the insurers consent.
• Third, a duty is now imposed on insurance companies to enter into fair and reasonable settlements despite the issuance of a reservation of rights letter;
• Finally, the insurance company will be liable to the insured for the cost of settlement if the insured demonstrates “that the insurer breached its duty by failing to consent to a settlement that is fair, reasonable and non-collusive.

This case has changed the landscape of cases that are defended by insurance companies under a reservation of rights. Private Counsel advising clients, who are being defended by an insurer under a reservation of rights, need to monitor the cases and when warranted discuss with their client if the case should be settled. Obviously seek permission from the insurer but do not let the lack of permission prevent your client from settling if the settlement is fair and reasonable under the circumstances.

Today the United States Third Circuit Court Of Appeals issued a major ruling against Montgomery County Recorder of Deeds Nancy Becker. Becker filed a class action on behalf of all Recorder of Deeds in Pennsylvania Mortgage Electronic Registration Systems, Inc. (“MERS”) seeking to recover millions in “so called” unpaid recording fees and an order to compel MERS to record and pay fees for recording mortgage assignments. Becker was successful before the United States District Court and today the United States third Circuit Court of Appeals reversed and dismissed Becker’s case.

As background information, MERS is a national electronic loan registry system. It permits its members to freely transfer promissory notes associated with mortgages while MERS remains the mortgagee or mortgage holder of record as nominee for the actual note holder. This system was created, in part, to reduce costs associated with the transfer of promissory notes. Becker was seeking to require that those assignments be recorded and that a fee be paid to the Recorder of Deeds.

The 3^rd Circuit Court of Appeals ruled today that the Pennsylvania Recording statute found at 21 Pa.C.S. A. section 351 does not mandate that the assignments be recorded.  According to the 3^rd Circuit Court of Appeals, Becker’s class action lawsuit was based upon a flawed premise that the recording statute required the assignments to be recorded. As a result, Becker’s class action should have been dismissed by the United States District Court.

Today the Pennsylvania Superior Court posted 23 non-precedential decisions.  Of the 23 decisions, 15 were on criminal cases, 2 trusts and estates, 3 family law 1 wrongful death and 1 involved a neighbor dispute.

In a 44 page decision, the Pennsylvania Superior Court vacated a jury verdict for the sole purpose of allowing the Plaintiff Sears, Roebuck & Co. (‘Sears”) to have its demand for punitive damages submitted to a jury.

As background, Sears sued its landlord for constructive eviction and the landlord’s agent for interference with contract. The jury found in favor of Sears on all claims. However, the trial judge granted the Defendants Motion for Directed Verdict on Punitive Damages.

On appeal, in a decision authored by Judge David Wecht, the Pa Superior Court reversed for the sole purpose of having the issue of punitive damages submitted to the Jury.  In the opinion, Judge Wecht set forth a lengthy dissertation of the law in Pennsylvania on Constructive evictions.  It is worthy to read if you practice in that area.  While the Court affirmed the Judge’s decision not to set aside the jury’s verdict, the court did find that the Judge erred in granting the directed verdict as to punitive damages. Thus the case is remanded so that the issue of punitive damages can be presented to the jury.

This case will need to be retried before a new jury for the new jury to decide if punitive damages are warranted.  However, the jury does not get to decide if there is liability or the amount of damages on the underlying tort of interference with contractual relations.  While the result is favorable to Sears they could be at a disadvantage now having to convince a new jury that the agents conduct was willful, reckless or outrageous conduct warranting an award of punitive damages.

Today the Pennsylvania Superior Court reversed a Lower Court ruling by the Chester County Court of Common Pleas regarding the fraudulent transfer of a liquor license.

As background information, a Chester County Jury found liability against a bar and the holder of the liquor license as a result of the Plaintiff being injured in a motor vehicle accident by a car driven by a drunk driver who had been served at the Bar.  The jury awarded the Plaintiff $6,800,000.  Prior to the trial, but after the filing of the lawsuit. the holder of the liquor license 340 Associates transferred its only asset, the license to 334 Kayla (“Kayla”) for $75,000.  Kayla did not pay cash to 340 Associates. Rather, 340 Associates took back a note that was to be repaid within 5 years with payments to start 1 month after closing.  In reality, the payments did not commence for another 3 years.

The Plaintiff subsequent to trial filed a lawsuit against both 340 Associates and Kayla under the Pennsylvania Uniform Fraudulent Transfer Act. (“PUFTA”).  After a 2 day bench trial the Lower Court found that the Plaintiff had met their burden of establishing the indicia of fraud. However, the Lower Court ultimately ruled against the Plaintiff when the court found that the value received by 340 Associates was equivalent to the value of the liquor license transferred to Kayla.

On appeal the Pa Superior Court reversed, finding that the evidence was more than sufficient to establish that value was not given since the loan repayment did not start for 3 years.  The Court then stated:  “the distribution of 340 Associates’ only asset – leaving it incapable of discharging its debts – in conjunction with the other badges of fraud found by the trial court, establishes fraud as a matter of law.” The case has been remanded for the Lower Court to decide whether to compel the return of the license or the public sale of the license with the proceeds going to the Plaintiff.

The Commonwealth Court of Pennsylvania just reversed a judgment of the Berks County Court of Common Pleas that had the potential to open up the floodgates to claims by utilities against local agencies based on the alleged negligence of the agency’s employees.

The plaintiff, a private utility company, sued the City of Reading after its electrical duct bank collapsed during an excavation project performed by Reading’s employees.  The plaintiff attributed the duct bank’s collapse to Reading’s employees failing to backfill the site and install shoring. 

Reading argued at trial that it was immune from suit under Pennsylvania’s Political Subdivision Tort Claims Act, which generally shields a local agency from civil liability for its employees’ acts.  After a bench trial, however, the lower court accepted the plaintiff’s argument that Reading’s actions fell within the Act’s utility service facilities exception, which imposes liability for a “dangerous condition of the facilities” owned by the local agency.  The court awarded the plaintiff $53,000 in damages opening the door for a flurry of lawsuits against Reading and other municipalities for similar incidents.

In a seven page, reported majority opinion, the Commonwealth Court agreed with Reading’s position that the “dangerous condition” originated with the conduct of Reading’s employees, as opposed to a pre-existing condition of the facilities.  Reading was therefore immune from liability under the Tort Claims Act, leading to the Court’s reversal of the judgment.

 Fox Rothschild LLP attorneys Peter C. Buckley and Scott Oberlander represented Reading in this matter.

Pennsylvania has expanded the exceptions which permit a citizen from being excused from jury duty. Currently there are 5 exceptions which allow a person to be excused from jury duty in Pennsylvania. Those exceptions are:

• Persons in active military service;
• Persons who have served on jury duty within the prior 3 years;
• Persons who demonstrate undue hardship or extreme inconvenience;
• Immediate family members of victims of a criminal homicide;
• Persons who served for an 18 month statewide grand jury;

On October 20^th and 21^st the senate signed and house respectively signed Senate Bill 210 which has expanded the exceptions for reporting for jury duty in Pennsylvania. The additional exceptions excuse the following persons:

• Persons 75 years or older who request to be excused
• State, Local and Federal Judges
• Breastfeeding women who request to be excused

The bill was presented to the Governor on October 21^st and will take effect 60 days after it is signed.

Is Pennsylvania changing to merit selection for appellate court judges? Maybe in the future,  but not right now. The process is lengthy and requires an amendment to the Pennsylvania constitution which would require a positive vote of the house and senate in 2 successive sessions and then a ratification vote by the public in a statewide referendum.

Though lengthy, the process has started.  Penn live has reported that that on October 20, 2015, the House Judiciary Committee vote by 16-11 to approve a bill for merit selection.  Stay tuned based upon what may or may not happen in the upcoming appellate court races the bill will either die or gain some momentum.

Major changes will be taking effect in Montgomery County Court of Common Pleas effective January 1, 2016. On October 19, 2015, the Court entered an Order adopting Montgomery County Local Rule of Civil Procedure 200. Montgomery County will be moving from an attorney driven to a court driven system!

Montgomery County has always been an attorney driven system. So what does that mean? It means that the Court will not hold your hand, tell you what and when to do it. Furthermore, the Court does not initially establish dates for completion of discovery or trial.

Well, changes are coming to Montgomery County for all civil cases filed after January 1, 2016. Deadlines will now be automatically imposed. Cases will have to be in the trial pool in 9 months (arbitration cases) and 18 months (non-arbitration cases). If not, then a mandatory case management conference will be scheduled. At the case management conference deadlines of no more than 60 days (arbitration cases) and 120 days (non-arbitration cases) will be set for conclusion of discovery and exchange of expert reports. Thereafter, the case will be automatically placed in the arbitration or trial pool.

In order to implement the new court driven program Montgomery County has adopted a new Local Rule of Civil Procedure 200. Additionally, Local Rules of Civil Procedure 206.4 (Petitions), 1028 (Preliminary Objections), 1034 (Motion for Judgment on the Pleadings) and 1035 (Motions for Summary Judgment) have all been amended to shorten the time period for the Motions to be submitted to the Court for disposition. The amended rule also allows the Motions to be submitted to a Senior Judge for disposition.

As to cases filed prior to January 1, 2016, the current system will continue to apply.

It was reported today in the Pennsylvania Bulletin that the Pa Supreme Court has delayed the effective date for implementation of the Supreme Court’s  new Rules on Court Reporting and Transcripts from  June 1, 2015 to January 1, 2017.

The Rules on Court Reporting and Transcripts are comprehensive Rules that were approved by the Pa Supreme Court on December 4, 2014. The Rules among other requirements impose minimum proficiency requirements for Court Reporters along with maximum fees that can be charged per transcript page. The Rules further impose a burden on the President Judge to monitor compliance with the rules and grant discretion to the President Judge to impose sanctions on a Court Reporter for lack of compliance.

I previously blogged on the law that passed the PA House and PA Senate which expanded the exceptions for jury duty service in Pennsylvania. On October 30th that law was signed by Governor Wolf. The law will now take effect in 60 days.

On November 4, 2015 voters in Montgomery County elected Risa Vetri Ferman (“Ferman”), Daniel J. Clifford (“Clifford”) and Todd Eisenberg (“Eisenberg”) to fill three vacant positions on the Bench of Montgomery County Court of Common Pleas.  Ferman, Clifford and Eisenberg will take the Bench in January 2016.  The three vacancies are result of mandatory retirements of the Honorable Emanual Bertin (December 2014) and Joseph A. Smyth (December 2015) and Bernard A. Moore (December 2015).  It is anticipated that two of the three will be assigned to Family Court with the third being assigned to the Criminal Division.

The following, as reported in the Montgomery Bar Association Side Bar Magazine, is a summary of the background of each of the new Judges:

Risa Vetri Ferman

Risa Vetri Ferman is the first woman elected District Attorney of Montgomery County, earning her seat in November 2007 after working 15 years in the trenches as a prosecutor.  In 2011, she was re-elected for a second term.

As a prosecutor, Ferman specialized in prosecuting homicide, child abuse, domestic violence and sexual assault.  As District Attorney, she dedicated her office to protecting our most vulnerable citizens.  She was the co-founder of both Mission Kids Child Advocacy Center and Montgomery Child Advocacy Project (MCAP).  In 2011, she wrote a children’s book The Mouse Who Went Surfing Alone to teach Internet safety to children.

Across Pennsylvania, DA Ferman is a law enforcement leader.  She is the President of the Pennsylvania District Attorney’s Association and was Chair of the first Best Practices Committee.  The Supreme Court of Pennsylvania appointed her Chair of Criminal Procedural Rules Committee.

Award recognizing DA Ferman include: 2015 Montgomery County Black Law Enforcement Officers Association Lifetime Achievement Award; 2014 Girls Scouts “Take The Lead” Award; 2013 Aspen Institute’s Aspen-Rodel Fellowship in Public Leadership; 2012 L’Oreal Paris USA National Honoree/Women of Worth; 2012 Alan Lerner Child Advocacy Award-Field Center at the University of Pennsylvania.

Daniel J. Clifford

Managing partner of the Norristown Office of Weber Gallagher, Clifford was Chair of the 1,300- member Family Law Section of the Pennsylvania Bar Association in 2014 and spearheaded the award-winning “Judicial Interview of the Child” video project.  Clifford has advocated for improvements to family court and diversity in law practice.  He was honored by the Legal Intelligencer as a “2011 Diverse Lawyer of the Year” and the 2014 recipient of the Pro Bono Award from the PBA.

A graduate of the University of Baltimore School of Law, Clifford currently serves the Pennsylvania Supreme Court as both a Hearing Committee Member of the Disciplinary Board and as one of only 6 attorney members of the Domestic Relations Procedural Rules Committee.

In the Montgomery Bar, Clifford has served on the Board of Directors, the Judiciary, Nominating, Long-Range Planning, and Executive Committees and as Chair of the Family Law Section, Diversity, and Membership Committees.  He is a Zone 9 member of the PBA House of Delegates.

In his community, Clifford has served as Chair of the Springfield Township Zoning Hearing Board since 1997 and on the boards of Adoptions From the Heart and the Equality Forum.

Todd Eisenberg

Eisenberg is lead claims counsel for PECO Energy Company, handling a significant portion of the company’s civil litigation.  He was solicitor for several townships and boroughs, handling all aspects of municipal law concerns.  Eisenberg also operated his own law practice, where he handled criminal, personal injury and family law matters.  He was a staff attorney for the Defender Association of Philadelphia.

A graduate of Boston University, Eisenberg earned his law degree from Widener University School of Law and holds a Masters of Legal Letters in Trial Advocacy degree from Temple University.  He is an instructor of trial advocacy for Temple University and the National Institute of Trial Advocacy.

Eisenberg volunteers for the Montgomery County Child Advocacy Project, which provides free legal representation to children who are the victims of abuse and neglect.  He has represented many children in PFA hearings, dependency mattes, and as witness in criminal cases providing child victims with a voice.

Hopefully the Borough of West Chester hasn’t spent the money!  On July 14, 2014, the Chester County Court of Common Pleas awarded the Borough of West Chester (the “Borough”) a Judgment in the amount of $1,719,235.27 against Wyeth Pharmaceuticals (“Wyeth”). Wyeth appealed and today the Commonwealth Court vacated the Judgment and remanded for a determination whether the Borough owes Wyeth money for overcharges between 2006 and 2011.

As background, the dispute arose out of a contract that the Borough and Wyeth had which provided for a cost sharing arrangement regarding the Goose Creek Waste Water Treatment Plant.  Wyeth shut down its operations in 2006 and at that time ceased discharging wastewater.  Despite the shutdown, the Borough continued to bill Wyeth and Wyeth continued to pay the invoices amounting to hundreds of thousands of dollars.  In 2011, Wyeth gave notice to the Borough terminating the agreement and ceased paying any further invoices.

Wyeth filed a Declaratory Judgment Action in Chester County seeking an order that the contract was terminated and a Judgment that the Borough overcharged Wyeth between 2006 to 2011.  The Borough counterclaimed for 2011 and 2012 unpaid invoices.

After a bench trial, the Lower Court ruled against Wyeth and in favor of the Borough on the Borough’s counterclaim.  The Lower Court awarded the Borough Judgment in an amount in excess of 1.7 million dollars.

On appeal, the Commonwealth Court found that despite the indefinite nature of the contract that it was terminable upon notice.  The Court further gleaned the intent of the parties from the preamble to the contract.  The Court found that the intent of the parties was for each party to pay their fair share.  Based on Wyeth shutting down and discontinuing to discharge wastewater Wyeth was entitled to terminate the contract which occurred in 2011.  The Commonwealth Court vacated the 1.7 million dollar Judgment.  The Court further found that the Borough overcharged Wyeth and remanded the case for further proceedings for the Lower Court to determine the amount of the overcharges.

The final outcome is that the Borough went from being owed a 1.7 million dollar Judgment to owing Wyeth a yet to be determined sum of money.