PENNSYLVANIA LEGAL UPDATE

SPRING 2004 ISSUE

AGE DISCRIMINATION IN EMPLOYMENT

Both Pennsylvania and federal law prohibit age discrimination in the workplace. An employer may not fire or otherwise discriminate against an employee due to the employee's age. Only employees who are 40 years of age and older are considered "age protected." Federal law regulates employers with 20 or more employees, while Pennsylvania law regulates employers who have 4 or more full-time or part-time employees. Thus, if you employ as few as 4 part-time employees in Pennsylvania, you must take care not to base your hiring, firing, and job-action decisions on age as to any employees who are 40 years old or older.

State and federal age protection applies to both employees and job applicants. Employers may not discriminate against a person because of his or her age with respect to hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. It is also unlawful to "retaliate" or take any negative action against an employee who complains about employment practices that discriminate based on age.

Where employers, their managers, or other employees make negative comments about age-protected employees, age discrimination exists. A comment that an employee should lose some weight "because it would make him healthier and look younger," a comment that "things will hum around here when we get rid of the old fogies," comments that two older employees are "dinosaurs" and "the old men," and a reference to an older employee's "senility" all have been found by federal courts in Pennsylvania to lead to an inference of age-based discrimination. Negative comments about other employees and even negative comments made after an employee is discharged or otherwise mistreated can be used to prove an employer's age discriminatory attitudes.

Age discrimination may be presumed to have occurred if an employee 40 years of age or older is qualified for a job, is discharged, and is replaced by a younger person. An employer can rebut the inference of discrimination by proving a legitimate, nondiscriminatory reason for the decision. But even where an employee is replaced by or denied a job in favor of another employee or applicant of similar age or older, age discrimination can be proved if specific evidence exists to show that the rejected or fired employee was actually treated differently because of his or her age.

Recently, a federal court in Pennsylvania found that an employer did not discriminate when it fired a 45-year-old highway maintenance worker. The worker brought an age discrimination suit because he was replaced by a 28-year-old employee. He was particularly troubled because 6 months before his firing a 47-year-old employee on the road crew was fired and was replaced by a 26-year-old. The court ruled that the employee who sued was fired for legitimate, nondiscriminatory reasons. His job records showed that he had insisted on driving the crew truck based on his seniority and that he had sworn at a supervisor when the supervisor disagreed with him. The fired employee had later argued with a state inspector about a stop-and-go paddle used for traffic control, had refused to attend a safety meeting, and had taken time off from work, without permission, to go hunting.

If you are an employer, your written hiring and job performance records are important tools in defending against age discrimination claims. Employers must train their workforce on age discrimination issues and must expect the entire workplace to be free from negative comments and attitudes about employees' appearance and age. If you are over 40 and are employed, you are entitled to be treated with respect, and your age should not be an issue in any job-related decisions made by your employer. Pennsylvania and the federal government both maintain excellent websites on age discrimination issues. For more information, go to:

www.phrc.state.pa.us and

www.eeoc.gov.

WEBSITES EXPAND LEGAL LIABILITY

An out-of-state business or individual who engages in business in Pennsylvania can be sued in Pennsylvania. Occasional, fleeting, or minimal business contacts are not enough to justify making an out-of-state business or individual travel to Pennsylvania to face suit--both Pennsylvania and federal law require that some truly meaningful business contacts must take place before an out-of-state business or person can be bound by the decisions of a Pennsylvania court.

Recently, a Pennsylvania court decided that a Maryland business that buys and sells cars over the Internet can be sued in Pennsylvania. Through its Internet site, the Maryland business sold a Pennsylvania dealer's car to a Maryland couple. Even though the documents were signed in Maryland and both the Internet seller and the buyers were located in Maryland, the Pennsylvania car dealer was permitted to bring suit over the transaction in Pennsylvania because the Maryland company engaged in "knowing and repeated transmissions of computer files over the Internet" into Pennsylvania.

A "passive" website that simply shares information does not give a state jurisdiction to entertain suits against the site's operator. But where a website is interactively used to market and complete business transactions with consumers, the site itself may constitute sufficient "contact" with Pennsylvania to permit claimants to bring suit in Pennsylvania courts over transactions gone wrong.

Doing business over the Internet is quick and convenient but can be complicated. It may be difficult even to know where Internet companies are physically located. Before closing a transaction or purchase, be sure you know the identity of the company or individual on the other side. Whether in California, Maryland, or even Alaska, if you are wronged in a consumer or business transaction completed online, you may be entitled to relief in the Pennsylvania courts.

AUTOMOBILE INSURANCE: YOUR RIGHT TO SUE

Whether or not you remember doing it, you chose either a "full tort" or a "limited tort" option on your automobile insurance policy. If you elected the "full tort option" under your policy, you have the right to sue a negligent driver who injures you in an automobile accident. A "tort" is a legal wrong--something more than ordinary rudeness but less serious than a crime. Negligent driving is a tort. When you purchased or renewed your automobile insurance policy, your insurance agent helped you choose either "full tort" coverage, preserving your right to sue, or "limited tort" coverage, which sets certain limits on your right to sue.

Full Tort

If you chose the full tort option and if you ever need to sue a negligent driver who has injured you, you will be entitled to reimbursement for any medical bills or other economic losses not covered by your own automobile insurance or other insurance. You can also sue for compensation for your pain and suffering and for the permanent or continuing limitations on your activities and income that may result from your injuries.

Limited Tort

If you chose the limited tort option and you need to sue a negligent driver, you will only be entitled to reimbursement for any medical bills or other economic losses not covered by your own automobile insurance or other insurance. You will not be able to recover anything for your pain and suffering or for future limitations unless your injuries result in your death, serious impairment of a body function, or permanent serious disfigurement. However, limited tort consumers may still sue for pain and suffering if the negligent driver was drunk, was driving an out-of-state vehicle, acted intentionally, or was uninsured. They can also bring a lawsuit for injuries suffered in a vehicle that is not a passenger car, and they can sue a business to recover damages for an injury caused by a motor vehicle defect.

Generally speaking, if you do not have your own policy of automobile insurance, you are bound by the tort option selected by your spouse or any insured relative with whom you live. Also, when you select a tort option for yourself, you bind your children, your spouse, and relatives in your household, unless they have their own policies of automobile insurance.

Exception to the Rule

Recently, the Pennsylvania Supreme Court recognized another exception to the limited tort status. The court found that a young adult woman who was injured while a passenger in her mother's van was entitled to full tort status even though she had chosen the limited tort option when buying her own separate insurance policy.

The injured woman lived in her mother's household. The mother had a full tort policy that identified the mother's car as the insured vehicle and that identified both the mother and her daughter as being insured under the policy. The daughter also had a separate, limited tort policy of insurance naming just herself as the insured and just her own vehicle as a covered vehicle. The court ruled that Pennsylvania law clearly provides that when a person who has limited tort coverage is also named as an insured person under a separate, full tort policy and is in a vehicle that is named in the full tort policy, the person is entitled to the full tort coverage.

All automobile insurance policies issued in Pennsylvania identify the people and the vehicles covered by the policy. If you are injured, do not assume that you are limited to the automobile insurance coverage you have purchased for yourself. Instead, check to see if you are named on any other policies in your household.

MORTGAGE PAYOFF PAPERWORK

With the rapid expansion of national residential mortgage lenders and the frequency with which mortgages are sold on the secondary market, getting a residential mortgage "satisfied" of record when it is paid off or refinanced has become far more complicated than it was when residential mortgages were the province of local banks. Title insurance companies and property owners often must struggle to clear record title to properties. Mortgages that have been long paid off may remain on record, creating problems for home buyers, home sellers, and lenders alike.

Pennsylvania recently passed a new mortgage satisfaction law that requires mortgage lenders to cooperate promptly in the recording of mortgage satisfaction documents. The Pennsylvania Mortgage Satisfaction Act provides for penalties for lenders who fail to satisfy mortgages that have been paid off. A mortgage lender that has been fully paid has 60 days to satisfy the mortgage of record. The penalty for failure to respond is a payment to the mortgage borrower in an amount "not to exceed the original loan amount."

In any successful action to recover such penalties, the lender is required to reimburse the borrower for the costs of the suit, including paying for attorney's fees. The Act also allows a settlement officer to satisfy a residential mortgage of record if a lender has been fully paid but does not respond to a request to record the satisfaction documents.

MISUSE OF THE MAIL CAN BE CRIMINAL

A mother of five in Pittsburgh was convicted of disorderly conduct for mailing a package full of garbage to neighboring landlords who failed to properly manage their tenants' trash. The woman became increasingly frustrated by the accumulation of trash and garbage outside her apartment building. The refuse frequently was spilled from trash containers put out by tenants in a neighboring building. Despite the woman's repeated complaints to the neighboring building's landlords and to the City Department of Health, the tenants' trash management continued to create problems.

Finally, exasperated that the situation was not improving, the woman collected some of the trash and garbage, including food scraps, from the sidewalks outside the landlords' building, boxed and wrapped it in holiday paper with a return address that simply read "Santa," and mailed it to the landlords at their suburban home. By the time the package arrived at the landlords' home, it was leaking and smelled distinctly of rotten food. When they opened the package inside their home, it "literally fell apart," spilling out garbage and an angry letter from the woman. Shocked and angered, the landlords contacted the police.

Pennsylvania law provides that a person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance, or alarm, he or she creates a hazardous or physically offensive condition by any act that serves no legitimate purpose. The woman defended her conduct, claiming that it was a part of a private dispute between her and the landlords, and that mailing the package did not cause any "public inconvenience." The Pennsylvania court disagreed, finding that the United States Postal Service is a publicly operated governmental agency, and that its facilities are open to the public. The court noted that the placement of an offensive and potentially hazardous package within the public domain of the postal system makes her conduct "public" and, therefore, criminal.

THANKS FOR THE REFERRALS

Despite this modern age of marketing and advertising, the best source of our new business is word of mouth. We are grateful that many of our clients and friends feel confident in recommending our firm. Unfortunately, when people need a good lawyer, they often do not know where to turn. If you or someone you know needs legal help, call us.