by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
On this blog I have occasionally written about the duty owed by landowners to, among others, visitors and trespassers and folks walking along a landowner's sweetgum-spiky-seed-pod-riddled sidewalk. In Pisieczko v. The Children's Hospital of Philadelphia, the Appellate Division addressed a similar situation — the duty owed by a landowner to an independent contractor performing work on its property.
In Pisiaczko, plaintiff was an independent contractor who worked for defendant "doing odd jobs, such as repairing different fixtures, changing lights, and installing tiles." In this capacity, he was hired by defendant to repair lights, which were "affixed to wooden poles" and located in one of defendant's parking lots. Defendant provided no guidance or supervision to plaintiff. Before beginning his work, plaintiff pushed on one of the wooden poles to make sure it was sturdy. When it did not move, he took a ladder, leaned it against the pole, and extended it to approximately two feet below the light fixture. He secured the ladder with straps around the pole. Unfortunately, while plaintiff was on the ladder testing the fixture, the pole broke. Plaintiff jumped off the ladder from about 20 feet to avoid falling into barbed wire. He injured his heel in the process.
Plaintiff sued. He alleged that the pole was rotten inside, which caused it to break. (The parties agreed that the rot was not visible before the pole broke.) Defendant moved for summary judgment, arguing that it was not liable for plaintiff's damages because the decision to place the ladder against the pole was incident to the specific work plaintiff was hired to perform. The trial court agreed and granted the motion. Plaintiff appealed.
Continue reading “Climbing A Light Pole Is Incidental To Fixing The Light At The Top, Therefore Property Owner Not Liable For Independent Contractor’s Injuries”
"Singer-songwriters John Whitehead and Gene McFadden were an integral part of the Philadelphia music scene in the 1970s." So begins the decision by the U.S. Court of Appeals for the Third Circuit in Whitehead v. The Pullman Group, LLC. (For the uninitiated, click here for a summary of the "Philadelphia Sound" to which this sentence refers and of which plaintiffs Whitehead and McFadden were a part.)
At issue in that case was Whitehead and McFadden's song catalog, which includes, among other things, the publishing rights to their biggest hit, "Ain't No Stoppin' Us Now." In 2002, defendant entered into a contract with Whitehead and McFadden that gave him the exclusive right to purchase the catalog following a 180-day due diligence period. After this period, defendant had the right to terminate the contract upon written notice to Whitehead and McFadden. Defendant claimed that his due diligence revealed several tax liens that diminished the value of the catalog. He claimed that he communicated this to Whitehead and McFadden over the phone. They responded that they would get back to him with more information, but instead contacted him and told him that they did not want to consummate the transaction, which defendant claimed was a breach of the agreement.
Several years later, after both Whitehead and McFadden died, their estates received an offer from Warner Chappell Music to purchase Whitehead and McFadden's song catalog. Shortly before the deal was completed, however, defendant wrote the estates and notified them of the existence of the 2002 agreement. (The estates were unaware of the deal with defendant prior to receiving this letter.) Shortly thereafter, Warner Chappell Music withdrew its offer. The estates then sued in state court seeking (1) a declaratory judgment that the 2002 contract was void, and (2) damages for defendant's alleged tortious interference with their deal with Warner Chappell Music. Defendant removed the lawsuit to federal court and counterclaimed for his own declaratory judgment and damages for the alleged breach of the 2002 contract. Both sides eventually agreed to arbitrate their disputes.
Continue reading “Ain’t No Stoppin’ Us Now . . . Third Circuit Affirms Arbitrators’ Ruling In Favor of Song Writing Duo”
by: Peter J. Gallagher
Several weeks ago, we brought you the story of a Philadelphia man who foreclosed on his local Wells Fargo branch ("Turning The Tables: Philadelphia Man Forecloses On Wells Fargo Branch") after the bank failed to pay a judgment the man obtained against the bank for violating the Real Estate Settlement Procedures Act. The bank eventually paid. Well, now it has happened again.
In Florida, which should just change its name to the "Foreclosure State" at this point, a couple recently received a foreclosure complaint from Bank of America. Nothing too strange in this day and age, except that the couple had paid for their home in full and in cash when they purchased it. As the Naples News reported — in the cleverly titled "Tables Turned, Bank Pays Up In Mistaken Foreclosure Case" — the homeowners were forced to hire a lawyer, who spent weeks on the phone and in court before the case was dismissed, costing the homeowners $2,500 in legal fees. The court ordered the bank to pay these fees, but after five more months of phone calls, neither the bank nor its local counsel had paid.
This is where the story gets interesting. The homeowners' lawyer obtained a writ of execution from the local sheriff in connection with the debt and took it with him — along with local media, sheriff's officers, and a moving van — to a local Bank of America branch and demanded payment or the branch would start losing furniture, money in the cash drawers, and any other assets needed to satisfy the debt. Not surprisingly, the branch manager quickly cut a check to the couple for the outstanding amount. In a written statement, Bank of America apologized to the homeowners and did the only thing it could do, blame the law firm that had been representing the company, which has since gone out of business, for failing to respond to the homeowners' requests.