Estelle Kokales McGrath

In a case where we represented a child care center, a federal district judge from the Western District of Pennsylvania granted our motion to dismiss with prejudice. The plaintiffs were nine minority employees who were involuntarily furloughed in the fall of 2020. They filed suit, alleging their employment was terminated in violation of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, the Pennsylvania Human Relations Act, the Wage Payment and Collection Law, and Section 1981 of the Civil Rights Act. The court agreed with the arguments made by the center, finding that the plaintiffs’ class claims were not timely exhausted. The court disagreed with the plaintiffs’ arguments that their charges gave notice of their putative class claims because each charge only focused on the individual complainant’s alleged personal disparate treatment. The court also found that the plaintiffs were not entitled to equitable tolling as they did not exercise reasonable diligence in obtaining essential information bearing on their claim. Accordingly, the court dismissed the entire complaint with prejudice, finding no need to address the other bases for dismissal or the center’s request to strike the class action allegations. 

In a case where we represented an insurance broker, a Federal District Judge from the Southern District of West Virginia granted our motion to dismiss and dismissed the suit in its entirety. The plaintiff was a women’s fashion and accessory boutique. The suit arose from a dispute over the plaintiff’s insurance coverage for damages it sustained while being ordered to close by West Virginia’s COVID-19-related orders. The insurance carrier filed a motion to dismiss, and, thereafter, the plaintiff voluntarily dismissed the carrier. The broker filed a motion to dismiss all of the claims plead against it, including bad faith, West Virginia’s Unfair Trade Practices Act, estoppel and breach of fiduciary duty. The court dismissed the counts of bad faith and Unfair Trade Practices Act, finding that the plaintiff failed to provide sufficient allegations to support such claims. The court further explained that the plaintiff alleged very few facts specific to the broker and that the allegations plead did not support any unreasonable conduct by the broker, which is required to establish bad faith or deception. For similar reasons, the court held that the plaintiff’s estoppel claim failed. The plaintiff alleged the broker advised that they would have coverage as a result of the COVID-19 orders. The court found that the plaintiff failed to allege how it relied on those representations or how that reliance was detrimental. The alleged representations occurred months after the plaintiff accepted the policy and did not appear to have any impact on the plaintiff’s request for payments from its insurance carrier. Finally, the court explained that the plaintiff failed to identify any West Virginia authority to establish a breach of fiduciary duty against the broker. Regardless, the court found that the plaintiff failed to allege that it requested specific coverage before the broker procured the policy.

The Pennsylvania Supreme Court denied a newspaper delivery person’s petition for allowance of appeal on March 30, 2021. The claimant filed a claim petition in 2018, alleging that he suffered serious injuries to his right leg after slipping and falling on ice when he was delivering newspapers. The newspaper asserted that the claimant was an independent contractor. The case was bifurcated to determine whether the claimant was an employee. After fully litigating the issue, the Workers’ Compensation Judge found in favor of the newspaper and found that the case was not so different than the seminal case of Johnson v. WCAB (DuBois Courier Express), 631 A.2d 693 (Pa. Cmwlth. 1993). The Johnson court held that a newspaper carrier was an independent contractor because the newspaper did not exercise substantial control over his activities. The claimant appealed to the Workers’ Compensation Appeal Board. After hearing argument and reviewing the parties’ briefs, the Board affirmed the judge’s decision and order. The claimant appealed to the Commonwealth Court, urging the court to consider the evolving nature of the newspaper delivery business in rendering its decision. The court refused to do so and highlighted the lack of control by the newspaper because there was no prohibition on delivering competing newspapers or enlisting a substitute without prior notice or permission. The Commonwealth Court’s decision, which was issued as a non-precedential opinion, is the latest in an unbroken line of similar cases holding that newspaper carriers are independent contractors.  The claimant’s suit ended when the Pennsylvania Supreme Court denied the petition for allowance of appeal.