Borough of West Chester, Pennsylvania
On July 13, 2014, following a week-long trial, the Chester County Court of Common Pleas found in favor of the Borough of West Chester on all of its claims in its recent lawsuit with Wyeth Pharmaceuticals, Inc.
The dispute stemmed from a 1984 agreement that required Wyeth to pay its fair share of certain costs incurred by the Borough in operating the Goose Creek Waste Water Treatment Plant, which was designed and built in large part to accommodate waste water produced by the Wyeth plant formerly located on the corner of South Bolmar and East Nields Streets in the Borough.
The Court found that the agreement remains valid and enforceable and that Wyeth must continue to make the quarterly payments required under the agreement. The Court also determined that Wyeth must pay the Borough $1,719,235.27 representing the payments Wyeth refused to make through the third quarter of 2013.
The Borough remains hopeful that Wyeth, now controlled by Pfizer, Inc. will demonstrate corporate responsibility by abiding by the Court’s decision, bringing their past due sewer account up to date, and paying their future obligations in a timely fashion.
The Borough was represented by Sigmund Fleck and Anthony Brichta of Buckley Brion McGuire & Morris LLP.
Jordan C. Norley
President of Council
West Chester Borough
Pennsylvania’s Supreme Court Reverses Bricklayers Decision Permitting Unions to File Mechanics’ Liens
Authored by Christine S. Kimmel, Sigmund J. Fleck and Scott M. Klein
April 23, 2014
In January, 2012 an en banc panel of the Superior Court of Pennsylvania held in Bricklayers of Western Pennsylvania Combined Funds, Inc. v. Scott’s Development Company, 41 A.3d 16 (Pa. Super. 2012), that the definition of a “subcontractor” under Pennsylvania Mechanics’ Lien Law (“MLL”) included a trustee of an employee union benefit fund. This decision had widespread implications for property developers, commercial lenders, title insurance companies and owners. In its April 17, 2014 decision, the Pennsylvania Supreme Court reversed the Superior Court’s expansion of the “subcontractor” definition stating that the legislative intent was not present for such an interpretation and expansion. This decision provides clarity to an otherwise murky area of the MLL.
The history of Bricklayers was an important factor in the Court’s decision. Scott’s Development Company (“Scott”), hired J. William Pustelak, Inc. (“Pustelak”) as the general contractor to perform construction work on Scott’s property. Although not executed in connection with the construction work to be performed on the Scott property, Pustelak was a party to two collective bargaining agreements (“CBAs”) with the bricklayers union to hire union members for specific construction work for Pustelak. These CBAs required Pustelak to make payments to the union members’ benefits funds. Pustelak employed union labor in the construction project on Scott’s property, but the trustees of the benefits funds (“Trustees”) claimed that Pustelak did not make the requisite benefit payments under the CBAs.
After the Scott construction project was completed, the Trustees filed mechanics’ liens against the Scott’s property as “subcontractors” under the MLL. The Superior Court agreed with the Trustees, basing its decision on a liberal interpretation of the statutory definition of “subcontractor” under the MLL. The Superior Court found that the CBAs amounted to subcontracts to provide “labor, skill or superintendence” to the Scott construction project, even though the CBAs were not executed in connection with the Scott project.
The Pennsylvania Supreme Court, however, was not persuaded by the Superior Court’s reasoning in expanding the meaning of “subcontractor” and it reversed the Superior Court’s decision. The Supreme Court turned to two specific sections of the MLL; the legislative intent and the Supreme Court’s long standing precedent in reaching its decision.
The Supreme Court first examined two sections of the MLL which it noted are, on their face, inconsistent. Section 1201(5) defines “subcontractor” as:
one who by contract with the contractor, or pursuant to a contract with a subcontractor in direct privity of a contract with a contractor, express or implied, erects, constructs, alters or repairs an improvement or any part thereof; or furnishes labor, skill or superintendence thereto; or supplies or hauls materials, fixtures, machinery or equipment reasonably necessary for and actually used therein; or any or all of the foregoing, whether as a superintendent, builder or materialman. The term does not include an architect or engineer who contracts with a contractor or subcontractor or a person who contracts with a materialman or a person who contracts with a subcontractor not in direct privity of a contract with a contractor.
Section 1303(a) provides that “No lien shall be allowed in favor of any person other than a contractor or subcontractor, as defined herein, even though such person furnishes labor or material to an improvement.” 49 P.S. §1303(a).
The Supreme Court determined that not all parties who work on a construction project are entitled to be classified as a contractor or subcontractor. One such group is employees of a contractor or subcontractor or union members who supply labor to a project pursuant to an employment contract, whether express or implied. In making this determination the Court relied upon Clifford F. MacEvoy Co., v. United States for Use & Benefit of Calvin Tompkins, 322 U.S. 102 (1944). The Court used the MacEvoy case to support its decision that a subcontractor is one who performs a part of the general contractor’s work, but excludes laborers and materialmen. Thus the Court refused to accept the expansion of the right to file a mechanics’ lien that was granted by the Superior Court.
With this decision, the Pennsylvania Supreme Court stemmed the tide of expansion of the MLL in Pennsylvania, giving a bit more certainty to owners, developers, and lenders that unexpected liens will not be permitted against their properties which arose from contracts having no direct bearing on the construction project at issue.
AT ISSUE: RAISING THE BAR
The following article appeared in the Spring 2013 issue of AT ISSUE, a Publication by and For the young lawyers division oF the Pennsylvania Bar Association.
“Raising the Bar” is a new column written by rotating authors Anthony M. Brichta, Andrew C. Eckert and Colleen A. Preston of Buckley, Brion, McGuire & Morris LLP in West Chester, PA.
BALANCE AS A YOUNG ATTORNEY
by Colleen A. Preston
Being a lawyer is what I’ve wanted to be since I was a kid. No lie, since grade school, when someone asked, that was my answer: lawyer. What’s funny is, when I gave that answer, I really had no idea what it meant to be a lawyer. I’ve been practicing for almost two years now. While I don’t even have close to all the answers, what I know now is that being a lawyer means a lot more than what I thought as a 12 year old. It means balancing who you are with your practice, creative thinking, working with others, client relationships and business creation. Balancing these different aspects of practice is no joke, but can be easier if you have some tips.
I definitely think that a large part of what kind of attorney you are depends on who you are as a person. People are who they are, and this profession highlights that fact. Sometimes, balancing your practice means fighting your natural instincts. I don’t mean ignore what you’re best at or what your strengths are, I mean learn when your strengths become your weakness. For example, I’m an absolute control freak and perfectionist. Neither is necessarily a bad thing. However, the need to control every aspect of everything I do means that I sometimes find myself in the middle of writing a brief and realize that I’m worried about page formatting. Not only is this unnecessary, as my staff is fantastic and would fix that stuff on their own, but doing those things on my own is taking time away from the phone calls, research and other briefs to write. There becomes a point in almost every project I’m working on when I have to step back and remind myself to make sure I’m balancing my natural tendencies with the client’s best interests.
Related to the issue of balancing your strengths is recognizing and balancing your weaknesses. No one is perfect, and understanding our weaknesses enables us, as attorneys, to reach out to others to help balance those weaknesses. If you walk down the hall at my office on a typical day, there is nearly always collaboration in progress. First, this makes things fun. There are days practicing law when you can either laugh or cry; I generally find laughing more productive. Whether it be just out of frustration or over a ridiculous statement by the opposing party, sharing these issues really helps put things in perspective (and helps with another balancing act of practicing law – balancing stress!). Collaboration serves another huge purpose: It allows you to work off the strengths of those around you, especially when their strengths are your weaknesses. It’s easiest to use myself as an example; I’m a details person. But sometimes I get lost in details and lose the big picture, which is not a good thing. What I’ve learned is that I’m surrounded by people who have different strengths than I do. While I can get lost in the details, there are others who prefer the view from 10,000 feet. Talking a case or issue over with someone with an opposite strength than mine helps remind me that the whole picture is crucial, not just today’s detail. For me, this is another form of balance.
Finally, what I now know is a huge part of the practice of law requires balance – clients! It doesn’t take much time in practice to recognize that clients are pretty much the most important part of practicing law. We all need to learn how to balance practicing law with managing the clients we have and attracting new clients. Billable hours are required for most attorneys, so long hours in the office are required to meet those requirements. But how to balance the clients with the billable hours? What I didn’t know before starting practice is how much commitment is required out of the office. Before practicing, I’m not sure I had ever heard of a chamber of commerce. Now, my in- box is of full of emails about the next chamber events, even my Facebook account has as many status updates from the various local chambers as from friends. These events require a time balance and work-life balance. For my practice, it’s important to not only attend these events, but really learn to enjoy them. If I’m dreading a particular event, that attitude will definitely show through upon my arrival.
So, how to balance? First, support at home is fantastic. My husband has always understood that my career requires time away at night. It’s not always easy, but I try to balance the nights I’m not home with nights that I am home for dinner. The very near future will bring more changes as we are expecting our first child in the spring. However, over the past few years, knowing that kids were in our future, I made sure to attend as many events as I could, knowing there would be many “no’s” in the future after kids. Second, recognize that balance is required between work events and work. If you normally work until 7, and you have an event starting at 5, then logic says you’re going to miss a few hours, so get to the office early! Work a few extra hours the day before! Essentially, plan. It’s also important to learn what events are necessary and what are not. Ask questions about what event this is and is it necessary for my practice or the good of my firm? In order to balance your practice and your life, it’s vitally important to balance your time.
Finding a balance in your practice and your life is not easy. I certainly haven’t found that balance quite yet.
My advice is to acknowledge that a balance is required. Accept that you might never achieve the perfect balance, but as long as you achieve what works for you, that’s what matters!
AT ISSUE: RAISING THE BAR
The following article appeared in the Spring 2012 issue of AT ISSUE, a Publication by and For the young lawyers division oF the Pennsylvania Bar Association.
“Raising the Bar” is a new column written by rotating authors Anthony M. Brichta, Andrew C. Eckert and Colleen A. Preston of Buckley, Brion, McGuire, Morris & Sommer LLP in West Chester, PA.
MOVING PIECES: LEARNING TO PLAY THE GAME
by Anthony M. Brichta
Starting out as a young attorney, you soon come to the realization that you aren’t playing the same game as many of your colleagues. While you’re still learning the players, the rules and what moves you can make, your more seasoned colleagues are relying on years of experiences and numerous cases of trial and error.
In my first few years of practice, I’ve found it takes time to realize that there is a vast difference between doing something and understanding what you are doing, how it relates to the rest of the case or deal and why you are doing it. It takes time to develop a frame of reference and understand how each deal point, motion and deposition may relate and affect one another, and it takes repetition to understand how each may impact the end result, whether it be through settlement or disposition.
Learning the practice of law is like learning a new sport or a new game. You can read the rules, you can watch someone else play and you can read about how you should play, but you really don’t fully understand it until you’ve gone through it a few times. Growing into an effective lawyer is not unlike learning to play poker, 1 chess or any other game which involves rules and strategy. For example, if you compare the practice of law to chess, there are a number of similarities. In both, you have a finite set of “rules,” an adversarial goal, a number of ways to accomplish your objectives, and in both the learning curve can be steep at times. Here are three lessons from chess that apply equally to the practice of law.
Every Piece Matters
One of the major lessons you can take from a game like chess is focusing on each piece’s role and not neglecting the little pieces.
Each case is always going to have the big moves, whether it be a pretrial motion, a deposition of a key witness or an important negotiation session. Each of those important steps, however, is built on a series of much smaller moves. I’ve found while each new day for a young lawyer may bring a new stress-inducing challenge, one advantage young lawyers have is that everything still seems somewhat important, even if we aren’t quite sure whether it is. A more experienced attorney may breeze through written discovery confident she can get what she needs at a deposition or breeze through a meeting with her client feeling comfortable that she already has a full understanding of the legal issues. While we may not yet have that luxury, if nothing else, a young lawyer may be more willing to look at each and every possible avenue of a case or spend extra time finding an issue that a senior partner may miss. I’ve found that if you embrace your role in your practice for what it is in a particular case, you can better determine how you can provide the most value. Depending on the case, you may not get to take the most important deposition or cross- examine the most important witness. You can, however, focus on the smaller moves – the ones that set up the bigger plays – and make sure that your case is moving forward with each little step. You can master the parts of the case that someone else might glaze over and pull together all the little pieces that will lead to a favorable resolution.
Playing Several Moves Ahead
As each case starts anew and as you progress along, different pieces become more important, and the positions on the board constantly shift.
One thing I’ve found extremely helpful is to always keep in mind how today’s work may affect different parts of the case down the road. In chess, or any other sport or game, if you focus too heavily on the move you are currently making, you may miss how it is affecting the game several plays down the road. In soccer or hockey, it’s often the pass before the pass that creates the opening. If you take a position in a case or a deal that is unreasonable, it is often hard to backtrack. Likewise, if you don’t start moving toward the end goal now, you will find yourself without enough time to prepare for a trial or finish a deal on time. Likewise, I am (reluctantly) learning that it is often much better to spend larger chunks of time early in a case researching and evaluating what you will need later. When I started working as an attorney, I subscribed to the wide net theory of law – pull it all in and see what you have later. A lawyer at our firm finally convinced me to do things like read the jury instructions before filing (or answering) a complaint and start thinking about what closing argument might look like two years down the road. If you put together exactly what you want to accomplish or defend against, whatever the case may be, it is much easier to plot the path and start putting together the moves that will get you where you want to go. Otherwise, you’re just moving pieces around a board.
Focusing on the end has helped me tremendously in having a better understanding of the early parts of a case and avoiding, for the most part, moving in the wrong direction or neglecting an avenue that turns out to be tremendously important later on.
Sometimes a Draw Becomes The Win
Nobody likes a tie. Not many lawyers will approach a case with the hopes of a draw in mind (unless, of course, the case is that bad), but unfortunately, sometimes it happens. Maybe the facts aren’t as good as you first hoped, an appellate decision sets a negative precedent or your clients simply don’t make good witnesses. It is in those situations where you need to re-evaluate your position and determine if a reasonable settlement is now necessary to prevent a complete loss. Part of developing as an attorney is learning to ensure that your clients are always protected and you don’t lose sight of their best interest, even if that isn’t a win in your mind. Sometimes, when positions change, the draw is the win.
While these three concepts are hopefully instructive, it’s extremely important to take growing as an attorney for what it is — a process — and accept that for the foreseeable future you are going to run into attorneys with far more experience but that you’ll keep learning and improving. Games always get a little more fun as you get better. 2
1 For a great discussion of poker and law, see “Lawyer’s Poker: 52 Lessons That Lawyers Can Learn From Card Players” by Steven Lubet. Oxford University Press, USA (May 25, 2006).
2 For the reading inclined, also check out the “Art of Learning” by former chess prodigy Josh Waitzkin. Free Press (May 27, 2008).
AT ISSUE: RAISING THE BAR
The following article appeared in the Winter 2012 issue of AT ISSUE, a Publication by and For the young lawyers division oF the Pennsylvania Bar Association.
“Raising the Bar” is a new column written by rotating authors Anthony M. Brichta, Andrew C. Eckert and Colleen A. Preston of Buckley, Brion, McGuire & Morris LLP in West Chester, PA.
FOR THE NEWLY-ADMITTED ATTORNEY
by Colleen A. Preston, Esq.
The learning curve for a new attorney is steep. Steep to the point that there are days (or nights, usually around 2 a.m. for me) when panic sets in, and you are positive that you have slipped down that steep curve and won’t be able to pull yourself back out. I was admitted to practice in April and have had my shares of those moments. My gut tells me, the longer I practice, the worse it will get! Obviously, I’m new to this, and many of you reading this know far more than I do. But some of things I have figured out since April seem so obvious that no one ever says them, so I thought I would state the seemingly obvious things (that took me awhile to catch onto).
First, one thing that no one ever mentioned in law school is that, apparently, time sped up on the day I started practicing. Here’s how it goes: A complaint comes in, and you have 20 days to file a response. Twenty days means 20 actual days, not business days. In that time (at a minimum), you need to talk to your client, review the complaint with him, draft the answer, review the answer with your client, get the answer verified, and then you can file the answer. Twenty days is gone in the blink of an eye. In practice courses in law school, 20 days sounds as if it’s plenty of time. But, in reality, the time pressures of each case build up and can quickly become unwieldy.
This may sound like complaining on my part. That could not be further from the truth; I enjoy my job and am lucky to have the opportunity to be busy. That said, busy is busy, and work needs to get done. So, while I haven’t totally figured out how to prioritize everything on my desk, at least I know what is on my desk, if it’s on my calendar. It almost seems too simple to be advice – to use your calendar. But I don’t just mean to indicate meetings and court appearances, note everything: assignments, deadlines for you and deadlines for the opposing side in your case. The best thing I have learned is to do this quickly; don’t wait until tomorrow. Tomorrow, you will not remember what you were going to put on your calendar yesterday morning. For instance, when you talk to opposing counsel and give him five extra days to answer discovery, diary that deadline. You think you will remember when you are on the phone, but as soon as you hang up, the phone rings again, and you get four emails. By the time you remember to calendar that five-day deadline, 10 days have passed. While this isn’t necessarily going to make or break your case, it does affect your case. Most likely, you gave a certain extension of time for a reason. Don’t let days and weeks pass before you realize it. Because I’m telling you, they do.
The second piece of advice, again, seems obvious, but requires more work on your part, so it isn’t always easy to follow through. Don’t ask a question of someone else — client, partner, associate, paralegal, anyone — until you have checked into what you can. Try to anticipate the questions they will have of you. I don’t mean not to ask questions; that’s ridiculous. I have more questions on a daily basis then I ever thought possible. Just remember that everyone’s time is valuable, and respect that. I have yet to encounter someone in my firm who will not help me figure out the best way to handle a situation or answer one of the countless questions I have in a day. But I try to make sure that I can provide any answers I need in the discussion. For example, in civil litigation, it’s not unusual to have a question that directly or indirectly involves the Rules of Civil Procedure. As straightforward as the rules may sound, there is often a difference in the statement of the rule and the rule in practice. My rule: Before I go and ask any question, read the rules! I don’t rely on what I think I remember or what I think I read last week. I read the rule and the notes every time. If a rule refers me to another rule, yes, I read that too. Many times, when I finish my review, I have answered my own question. For those times that I do not, when I talk my question over with someone else, and his/her first question is, “What does the rule say?”, I know the answer.
Finally, I’ve learned that the pressure of law school was nothing compared to actual practice. The jump from law school hypothetical to the actual practice is daunting. Nothing quite prepares you for that change. This is not a job that you leave at work. You will take files home, get to your desk earlier than you could ever imagine, and learn more, in a shorter period of time, than you could ever imagine. The learning curve is certainly steep for a new attorney. Maybe you came out of law school knowing these things that took me months to figure out. If so, I’m jealous. If not, hopefully I’ve helped spare you some difficult moments.