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Houston Harbaugh Blog

Pittsburgh Pennsylvania Law Blog

West Virginia Case Reinforces that an Employee's General Managerial Skills are Not a Protectable Interest Sufficient to Justify a Restrictive Covenant

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Pennsylvania Federal Court Recognizes "Constructive Demotion" as a Type of Adverse Employment Action

In the employment law context, you've probably heard of constructive discharge as a type of adverse employment action. A constructive discharge occurs when an employer's actions make an employee's working conditions so unpleasant and difficult that a reasonable person in the employee's shoes would feel compelled to resign from his or her job. A recent decision from the United States District Court for the Middle District of Pennsylvania has found that an adverse employment action can also occur in the form a "constructive demotion" - something not yet explicitly held to be an adverse employment action in the Third Circuit.

Tincher Opinion Has Residual Effects on Pennsylvania Products Liability Law in the recent Urbieta Case.

How much has the recent Tincher v. Omega Flex, Inc., Opinion changed the landscape of products liability law in Pennsylvania? So far, this opinion has resulted in the Superior Court of Pennsylvania upholding the dismissal of a manufacturer of a product involved in a serious injury even though the product was deemed defective by the plaintiff's experts. This decision was made in the recent Urbieta v. All-American Hose, LLC, et. al., case. 2019 WL 3385192 (Pa. Super. 2019).

Pennsylvania Products Liability Law: Amazon May be Liable for Defective "Marketplace" Items in Oberdorf Case

What role does Amazon play when third party vendors sell defective products? The Third Circuit has recently issued an opinion on the issue in the case of Oberdorf v. Amazon.com Inc., No 18-1041 (3d Cir. 2019). The Third Circuit has held that Amazon can be liable as a "seller" for defective products sold by third parties on its marketplace site, under Pennsylvania products liability law.

Does a Well Passing Horizontally Under A Property Trigger A "Payment in Lieu of Free Gas" Clause? The Pennsylvania Superior Court Says "No".

In a recent ruling in Mitch v. XTO Energy, Inc. the Pennsylvania Superior Court has reasoned that a well drilled horizontally below a landowner's property does not trigger the "free gas" clause in a lease as no burden or limitation on the landowner's use and enjoyment of the surface of the land has taken place. Oil and gas attorney Brendan A. O'Donnell examines the Mitch case in depth below and explains what this can mean for landowners and their lease provisions.

Supreme Court Rules That Government is Not a "Person" Under the America Invents Act

Federal law has allowed for third party requests for reexamination of an issued patent on the basis on prior art since the 1980s. Under the America Invents Act of 2011 (AIA), three review processes replaced what was then known as "inter partes reexamination." These three review proceedings enable a "person" other than the patent owner to challenge the validity of a patent post-issuance: (1) "inter partes review," §311; (2) "post-grant review," §321; and (3) "covered-business-method review" (CBM review). As an alternative to or in connection with a patent litigation, an interested third party, an accused infringer, or any "person," can request one of these types of reviews.

Hemp and Hemp Derived-CBD Trademarks will now be accepted by USPTO

On May 2, 2019, the United States Patent and Trademark Office issued an examination guide in an effort to clarify the procedure for examining marks for cannabis and cannabis-derived goods and related services following the 2018 Farm Bill.

SCOTUS Landmark Trademark Licensing Decision: Mission Product Holdings, Inc. v. Tempnology, LLC, NKA Old Cold LLC No. 17-1657

Has "the most significant unresolved legal issue in trademark licensing" finally found some closure? Circuit courts have long been split over whether bankrupt trademark owners could revoke a license and on what the effect is, generally, of a rejection of an executory contract. On Monday May 20th, 2019 the U.S. Supreme Court ruled that defunct brand owners (as debtors in Chapter 11) cannot use bankruptcy law to unilaterally revoke (reject) a trademark license agreement. The court held that bankruptcy "rejection" of an executory contract trademark license (a contract that neither party has finished performing) under Section 365 was akin to a breach of contract outside of bankruptcy. Per Justice Kagan: "A rejection (of any executory contract) breaches a contract but does not rescind it." The licensee should not lose its right to use the debtor's trademark under license. [Kagan] "Such an act cannot rescind rights that the contract previously granted." Read here for the entire SCOTUS decision in Mission Product Holdings, Inc. vs. Tempnology, LLC. 

Changes to VA Pension Rules Go Into Effect October 18, 2018

If you, your parent, your spouse, or other loved one served during an active period of War and may have need of the VA Aid & Attendance benefits in the future, the clock is running. Until now, veterans or their spouses who met medical qualifications could make transfers to lower their assets and allow them to qualify for such benefits. However, under the new regulations promulgated by the VA and just made final, the VA will be implementing, among other changes, a three year lookback period on transfers made of "covered assets" to an individual or a trust or an annuity if the inclusion of such assets would have caused the applicant's net worth to be over the limit permitted under the new regulations. The penalty period for such transfers can be long as long as five years.

Reminder of Annual QSEHRA Notice Requirement 2018

The law governing Qualified Small Employer Health Reimbursement Arrangements (QSEHRAs) requires that a written notice of the availability of the QSEHRA be provided to each eligible employee at least 90 days before the beginning of each year. While special rules for 2017 and 2018 allowed for later deadlines (since QSEHRAs were new and the rules were still being developed), no special deadline is available for a QSEHRA providing benefits in 2019. Therefore, an employer providing a QSEHRA for 2019 must provide the written notice no later than October 3, 2018.