Tied For First In “Best of Bucks”! – Keep Voting!

The “Best of Bucks” contest doesn’t measure an attorney’s skill, but it is an opportunity for some visibility which, for a sole practitioner, is often hard to come by.  As of last Friday, February 23rd, I was tied for first place in the voting with an attorney from a large Bucks County firm.  The last day for online voting is March 3rd.  It would be nice to win, and I am hitting the social media space up til the last minute, but I am already so very pleased to have so many people take the time to vote for me.  I aspire to provide a level of professional service above your expectations.

Thank you!

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Employer Not Responsible For Employee Data Safekeeping

You start your job and give your employer all your personal information: your home address, social security number, perhaps even confidential medical and financial data. Did you know your employer has no duty to keep your confidential information safe from hackers? In a recent 2 – 1 vote, a three-judge panel of the Pennsylvania Superior Court ruled that employers cannot be held responsible for a data breach of employee information even if the employer was not utilizing current best practices to prevent a breach.

In the case of Dittman v. University of Pittsburgh Medical Center, decided January 12, 2017, the names, addresses, birthdates, salaries, social security numbers and other valuable data of 62,000 employees were stolen from University computers. The breach resulted in as many as 788 employees falling victim to tax fraud and identity theft. Yet, the court’s majority concluded that since data breaches are widespread and cannot be prevented entirely, it should not create a rule that would force employers to spend significant sums on technology when data breaches remain an unavoidable hazard.

 

The court did not evaluate the technology UPMC had in place, its cost, or the cost of more expensive measures that might have prevented the breach. In a stinging dissent, Judge Musmanno chided the majority for failing to even allow the plaintiffs the opportunity to demonstrate the University was aware of the threat of cyberattacks and did not act reasonably within budgetary constraints to safeguard employee information.  The Dittman decision has far-reaching implications.  To the delight of hackers, it may encourage some employers to spend less on data security, or at least on the security of data that doesn’t affect the employer’s bottom line if it is compromised. Look for this one to go up to the Pennsylvania Supreme Court. In the meantime, employees might want to spend a little themselves on LifeLock or similar services to protect their confidential information.

Is Driving More Dangerous On New Year’s Eve?

Driving is more dangerous on any day on the calendar that increases the number of vehicles on America’s roadways as well as the number of drivers who still get behind the wheel while under the influence of intoxicating substances. Nevertheless, it may come as a surprise that New Year’s Day is statistically not the most hazardous driving day of the year. That dubious distinction belongs to July 4th.

In a study conducted by the Insurance Institute for Highway Safety analyzing traffic fatalities from 1986 through 2002, the researchers found that New Year’s Eve was the fourth most hazardous driving day of the year with an average of 142 deaths. The top three were July 4th, (161), July 3rd (149), and December 23rd (145). The study analyzed only fatalities and not the entire number of reported accidents.

Even the fourth most hazardous day of the year for traffic fatalities deserves serious reflection and appropriate caution if venturing out on New Year’s Eve. The following are some common sense precautions to assure you return home safely:

  • Allow yourself plenty of time traveling to and from your destination.
  • Make sure your vehicle’s headlights and taillights are functioning properly so you can see and be seen.
  • Wear your seat belt.
  • Avoid distractions in your vehicle from cellphones and other devices.
  • IF YOU CONSUME ALCOHOL OR OTHER CONTROLLED SUBSTANCES, FOR HEAVEN’S SAKE, DON’T GET BEHIND THE WHEEL. HEAVEN DOESN’T NEED YOU YET.

Although traffic-related deaths may increase around certain holidays, the number of fatalities across the entire 17-year period covered by the study still averaged 117 per day. As Allan Williams of the IIHS cautioned, “While more deaths do occur on some of the holidays, the toll of fatalities is relentless every day, all year long.”

If you or someone you know has been injured in an accident, contact Scott Fegley at the Fegley Law Firm, (215) 493-8287 or by email at scott@fegleylaw.com. We Give You Peace of Mind.

A NON-COMPETE WITHOUT PAY? NONSENSE.

It is well established in Pennsylvania law that a non-competition agreement signed at the beginning of employment is enforceable if it is reasonable in its duration and scope. Yet, employers often attempt to compel employees to sign non-competition agreements after the employment has begun. Perhaps the employer overlooked the document during the hiring process. More likely, the attempt comes much later when the employer suddenly realizes the potential impact to its business if a key employee should leave.

Employers in Pennsylvania are required to offer an employee more than just continued employment to enforce a non-competition agreement signed after employment has begun. In Socko v. Mid Atlantic Systems of CPA, Inc., decided by the Pennsylvania Supreme Court in November 2015, the defendant employer foolishly decided the non-competition agreement its salesman, David Socko, signed in 2009 when he was hired wasn’t strong enough. In 2010, it asked him to sign a far more restrictive agreement. The agreement specifically noted that it superseded all prior agreements. Mid Atlantic did not extend Mr. Socko any additional benefit for signing the agreement, not a raise, not a bonus, not an extra week of vacation. When Mr. Socko left to work for a competitor in 2012, Mid Atlantic attempted to enforce the 2010 agreement.

The Supreme Court held the 2010 agreement was unenforceable because Mid Atlantic did not provide Mr. Socko “consideration,” a valuable benefit, in exchange for signing the agreement. Because non-competition agreements have historically been looked upon with disfavor in Pennsylvania jurisprudence, the Supreme Court ruled that an employee is entitled to challenge a non-competition agreement for a lack of consideration even if the agreement contains language which states the employee intended to be legally bound by the agreement. Moreover, the language in the 2010 agreement that superseded all prior agreements prevented the employer from relying upon the less restrictive agreement signed at the beginning of the employment in 2009.

What if an employee refuses to sign a non-competition agreement even if the employer offers a valuable benefit in exchange? Unfortunately, in the employment-at -will environment, a refusal to sign a non-competition agreement properly supported by consideration is not legally protected. At least Pennsylvania employees are entitled to be compensated for agreeing to restrictions. In contrast, the New Jersey Supreme Court has held that continued employment itself is sufficient consideration for a non-competition agreement presented after hiring.

 

If you are presented with a non-competition agreement and have questions, call Scott Fegley at the Fegley Law Firm in Yardley, PA, (215) 493-8287 or email him at scott@fegleylaw.com. Mr. Fegley will help you make an informed decision about whether to sign a document that may restrict your ability to work for another employer.

Love ’em And Leash ’em

Whether you own a poodle or a pit bull, you have a legal responsibility for your dog’s behavior. Two recent Pennsylvania court cases reaffirmed that failure to control a dog may have serious legal consequences.

In Franciscus v. Sevdik, 135 A.3d 1092 (Pa.Super. 2016), an employee of a pet sitting business was out walking a client’s dog when the dog, a pit bull, jumped up and bit a 5-year old girl on her chin. Interestingly, the trial court held only the dog owner responsible for the girl’s injury and dismissed the pet sitter. On appeal, the Superior court reversed. The evidence showed the owner had posted a “Beware Of Dog” sign on his property. Moreover, the owner specifically wrote in the service request form to the pet sitter to avoid routes with children when walking the dog. It seems the pet sitter rather than the owner should have been held responsible. The court ruled the pet sitter had knowledge of the dog’s dangerous propensities and should not have been dismissed from the case. The court held that a pet care business has the same legal responsibility for a dog bite as the owner when the dog is in its care.

The court declined to recognize pit bulls as a dangerous breed. The court held the breed of the dog is not the issue. The focus must be on the owner’s knowledge of behavior that indicates the dog may attack a human. Knowledge of growling or aggressive behavior, such as a fight with another dog, may give rise to liability even if the dog has not previously bitten anyone.

In Skotnicki v. Pennsylvania Dept. of Insurance, (156 C.D. 2015), the court upheld an insurance company’s cancellation of a homeowner’s insurance policy after it learned the homeowner’s dog had bitten someone. The dog, an English Springer Spaniel, bit the owner’s neighbor on his calf as the owner and the neighbor were talking. The owner described the attack as “out of the blue.” It is a simple fact that dogs who bite are more costly to own.

Dog bites are preventable in most situations. Dog owners should always keep a dog on a leash, even in an unfenced yard. Even smaller breeds may run away and encounter people. A dog owner should never allow a person who is a stranger to the dog to approach the dog and pet it without the owner’s introduction. An introduction involves the owner specifically talking to the dog to calm it and let it know the owner approves. If the owner knows the dog has a tendency to be protective or be anxious around strangers, it is best to err on the side of caution and avoid contact at all. Dog owners must also exercise caution when a visitor enters the home. The same rules for outside interaction apply. An aggressive or protective dog should be confined before allowing anyone to enter.

A dog’s companionship can enrich our lives, but it brings with it responsibility just as children do. And just as with children, an adult’s carelessness can lead to injury. Take these simple precautions to prevent dog bites and protect yourself from expensive consequences.

 

 

Scott Fegley is the son of veterinarians who maintained a practice in Hatboro, Pennsylvania for over forty years. He has had dogs as companions his entire life. Scott Fegley also has veterinarians and pet care services among his clients, and has represented persons in dog bite injury cases.  If you have questions about a dog bite case, call The Fegley Law Firm at (215) 493-8287 or by email at scott@fegleylaw.com.