This blog is the third in a municipal law series on all things roads. Property issues involving roads are fact specific and require an analysis of the facts and circumstances of your situation. This blog addresses the issue of the interplay between a statutory road or road by prescription vis a vis the statute of limitations for an eminent domain petition. If you have a specific question or legal issue, please contact the municipal law attorneys at SMGG.

When does the eminent domain statute of limitations begin on a road that becomes a public road by virtue of statute or prescription? If you read our first Road Blog on Public and Private Roads in Pennsylvania, you know that there are three distinct ways in which a road that has been laid out but not formally declared is deemed public: the introduction of court records showing the road to have been opened under eminent domain; by statute; or by prescription.

Regarding a statutory public road and a public road by prescription (requiring uniform, adverse, and continuous use for 21 years), there is a natural interplay with takings laws, which require that, in the absence of a declaration of taking, a petition for the appointment of viewers for the assessment of damages under [the Eminent Domain Code, 26 Pa. C.S. §§ 101-1106,] must be filed within six years from the date on which the asserted taking, injury or destruction of the property occurred or could reasonably have been discovered by the condemnee. 42 Pa. C.S. § 5527(a)(2).

Both statute and prescription methods require use by the public for a set number of years, along with maintenance by the municipality. By way of example, per Section 2307 of the Second Class Township Code:

(a) Every road which has been used for public travel and maintained and kept in repair by the township for a period of at least twenty-one years is a public road having a right of-way of thirty-three feet even though there is no public record of the laying out or dedication for public use of the road.

Thus, by statute, in a Second Class Township, a non-declared road can only become public where there is evidence that, for at least 21 years, it has been maintained by the municipality in which it is situated and has been used for travel by the general public. Therefore, in a road dispute, historical evidence of maintenance and public use is critical.

So, when does the statute of limitations for an eminent domain claim begin to run for a landowner who wants to challenge the nature of a road on or abutting his or her property? When the municipality first made efforts to maintain the road and the public used the road or after the period set forth by statute or prescription? In the unpublished Commonwealth Court opinion of Dysert et al. v. Robinson Township, No. 38 C.D. 2021 , the Court said that the statute of limitations began to run after the 21-year period of maintenance and use. In that case, the municipality demonstrated maintenance and use going back to 1974, therefore, the trial court held that the statute of limitations began to run in 1995 and that the landowners had six years from that date to file a petition under the laws of eminent domain. The Commonwealth Court agreed. An additional fact that the court considered was that the landowners were put on actual notice when they purchased the property in 1997 and 1998, because the deed language referencing the road as a “public road” was sufficient enough to put them on notice and preclude the tolling of the statute of limitations for filing their Petition.

Although the case is unreported and not precedential, it may be cited for persuasive value, and offers an opportunity to review of this underreported area of the law.

Please note that this blog post provides general information regarding road laws in Pennsylvania. If you own or are interested in purchasing a property which sits on a private road, or if you have a question about the legal status of your road, please reach out to a member of our municipal team so that we can provide more specific advice based on the facts and circumstances relating to your property. For more information on this or other municipal concerns, please contact Gretchen E. Moore at gmoore@smgglaw.com or Alexis M. Wheeler at awheeler@smgglaw.com.

Businesses beware!  In the age of COVID-19 and an increased virtual presence, websites can be crucial for businesses.  But does your website violate Title III of the Americans with Disabilities Act (ADA)?  This is a question most business owners do not ask themselves, but it should be close to the top of the list.  Plaintiffs are filing an increasing number of lawsuits against companies because the sites are not accessible to visually impaired customers.  These Plaintiffs claim that the websites do not meet the Web Content Accessibility Guidelines (WCAG) created by the nonprofit World Wide Web Consortium because visually impaired consumers allegedly cannot access the sites using screen-reader software.  These cases target all manner of businesses across a wide range of industries.

You may get sued if your website is not accessible.  Title III of the ADA prohibits owners or operators of “a place of public accommodation” from discriminating against an individual on the basis of their disability “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”  Western Pennsylvania falls within a certain group of jurisdictions designating websites as public places.  Therefore, websites must comply with Title III of the ADA.

Tracking this type of litigation over recent months revealed shocking statistics.  Over the last two months alone, seventeen (17) cases were filed by just one individual.  Over the last three years, this individual filed seventy-eight (78) cases.  Between 2017 and 2021, national litigation on this matter increased from 814 cases filed to 4,055.  For those who do not track legal filings, this is quite high.  It also means one very important thing – there are people looking for defective websites and taking action to correct these ADA violations.  As such, it is important for businesses to check their websites in order to confirm compliance.

Should you have any questions, please reach out to Anthony Judice at (412) 227-0264 or ajudice@smgglaw.com, Jean Novak at jnovak@smgglaw.com or Gerri Sperling at gsperling@smgglaw.com, or any of our attorneys in the firm’s employment practice group.

Unless exempt, every property owner in Allegheny County is required to pay property taxes to the county, the local government and the school district in which the property is located. The amount of taxes owed is based on the assessed value of the property. The assessed value of most properties in Allegheny County is based on the county’s 2012 assessment (the “Base Year Value”). Since 2012, each time a property is transferred for more than the Base Year Value, taxing authorities have filed appeals to the Allegheny County Board of Property Assessment Appeals and Review (“BPAAR”) asking BPAAR to increase the property’s assessed value.  

At BPAAR hearings, taxing authorities typically argue that the assessed value of a property should be increased because the current market value of the property is greater than the Base Year Value. If BPAAR agrees, BPAAR will take the market value and reduce it by Allegheny County’s Common-Level Ratio (“CLR”). The CLR is a factor created by the State Tax Equalization Board (“STEB”) based on sales data that is submitted to the STEB by the county. While the CLR is intended to equalize current market valuations with Base Year Values, most BPAAR hearings result in an increased assessment and a corresponding tax increase for property owners. So, for example, if a property’s Base Year Value is $60,000, and BPAAR finds its current market value to be $100,000, BPAAR would use Allegheny County’s current CLR of .811 to arrive at an assessment of $81,100, resulting in an increased assessment of $21,100. 

A Consent Order filed in the Allegheny Court of Common Pleas on April 27 directed Allegheny County officials to resubmit sales data to the STEB so that the county’s CLR can be recalculated. Based on the Consent Order, the CLR could be adjusted to as low as .635. If the new CLR is adopted, property owners with recently increased assessments may benefit from seeking a reduced assessment by filing an appeal with BPAAR. The deadline to file an appeal is March 31 of each year. It is unclear whether the results of the STEB recalculation and the Consent Order will require BPAAR to extend that deadline for the 2022 tax year. 

Whether you have already received a BPAAR hearing notice or if you think you can benefit from your own property tax assessment appeal, we recommend that property owners do not attend BPAAR hearings alone. The attorneys at Strassburger McKenna Gutnick & Gefsky are trained in advocacy at the BPAAR and are prepared to help. Should you have any questions, please reach out to Matt Morella at (412) 227-0289 or mmorella@smgglaw.com, Robyn Eisen at reisen@smgglaw.com, Alexis Wheeler at awheeler@smgglaw.com, or any of our attorneys in the firm’s real estate practice group

ACT 80 of 2021: School Bus Stop Enforcement

Effective October 20, 2021, Act 80 of 2021 amends Title 75 (Vehicles) of the Pennsylvania Consolidated Statues to extend temporary regulation for the school bus stop-arm camera enforcement program by two (2) years. The regulation shall now expire on October 20, 2023.

ACT 81 of 2021: Extension of Liquor License Service Areas

Effective November 5, 2021, Act 81 of 2021 authorizes the Pennsylvania Liquor Control Board (LCB) to temporarily extend the licensed premises of a licensed entity, including a club, retail dispenser, hotel, and restaurant, upon request. An extended licensed premise includes any outside serving area that is adjacent to the existing licensed area or within the 1,000 feet of the main licensed building even if separated by a road. The act also:

ACT 87 of 2021: First Responders Day

Effective November 17, 2021, Act 87 of 2021 declares September 27 of each year as the First Responders Day in Pennsylvania. The act calls upon all public schools and educational institutions to observe First Responders Day and to “conduct exercises recognizing the contributions and remembering the sacrifices that first responders have made.” “First Responders Day may not be a paid holiday or a day the school district closes.”

ACT 96 of 2021: Broadband Development Authority

Effective December 22, 2021, Act 96 of 2021 creates a Pennsylvania Broadband Development Authority to disburse state and federal funds for the expansion of broadband to unserved and underserved areas, coordinate broadband development, and produce a state wide broadband development plan. The act sets forth the structure and governance of an authority, as well as its powers and duties. The act also enables Pennsylvania to access $100 million in federal aid for broadband roll out. 

ACT 97 of 2021: Bonds for Development Improvements

Effective February 20, 2022, Act 97 of 202 amend the Pennsylvania Municipalities Planning Code to clarify that a municipality may require a developer to post a bond that equals  “but does not exceed” 110% of the cost of the improvements. The act also clarifies that the municipality may, prior to release at the time of completion and certification by its engineer, retain 10% of the estimated cost of the remaining improvements. 

The Pennsylvania psychiatrist/psychologist-patient privilege, codified as 42 Pa.C.S. § 5944, protects confidential communications shared between a psychiatrist or psychologist and their patient from disclosure. 

The privilege precludes the discovery of confidential communications between a patient and psychiatrist/psychologist made in the course of treatment. See 42 Pa.C.S. § 5944. Communications includes oral communications and any reference to privileged communications in a file. Commonwealth v. Simmons, 719 A.2d 336, 343 (Pa. Super. Ct.  1998). The privilege applies not only to psychiatrists and psychologists, but to any member of a patient’s treatment team. Farrell v. Regola, 150 A.3d 87, 100 (Pa. Super. Ct. 2016). Significantly, the psychiatrist/psychologist-patient privilege does not protect the psychotherapist’s own opinion, observations, diagnosis, or treatment alternatives. Commonwealth v. Segarra, 228 A.3d 943, 953-54 (Pa. Super. Ct. 2020), appeal denied, 237 A.3d 975 (Pa. 2020).

The purpose of the psychiatrist/psychologist-patient privilege is “to aid in the effective treatment of the client by encouraging the patient to disclose information fully and freely without fear of public disclosure.” Gormley v. Edgar, 995 A.2d 1197 (Pa. Super. Ct. 2010) (citation and quotation marks omitted). 

Although a highly regarded privilege, a patient waives the psychiatrist-patient privilege when they put their mental health at issue in a case. The leading precedent on the waiver of psychiatrist-patient privilege is Gormley v. Edgar where an injured plaintiff alleged that a defendant’s negligence in an auto accident caused the plaintiff to suffer anxiety, shock, mental anguish and humiliation. Id. at 1205. In answering whether or not the plaintiff put their mental health at issue in the case, the Pennsylvania Superior Court held that general allegations of emotional or mental pain and suffering alone are insufficient to put a party’s medical condition at issue, and thus waive the psychiatrist-patient privilege. Id. However, allegations of “mental injury, severe emotional trauma requiring treatment, or psychiatric/psychological conditions” or allegations of the aggravation of existing mental health problems may waive the privilege. Id. The Gormley plaintiff was found to have waived the psychiatrist/psychologist-patient privilege when they alleged anxiety, a medically diagnosable mental disorder, as a result of defendant’s alleged negligence. Therefore, communications between the patient and psychiatrist/psychologist regarding the patient’s anxiety was discoverable.

When either pleading or responding to a personal injury complaint, it is important to be mindful of the types of injury allegations raised, and whether the injuries complained of are general allegations or medically diagnosable conditions or disorders, putting the patient’s mental health at issue, and potentially waiving the psychiatrist/psychologist-patient privilege.

Please contact Kathleen M. Mannard at kmannard@smgglaw.com or call us at (412) 281-5423 should you have any questions on the initiation or defense of a personal injury lawsuit.

It was April Fools’ Day, but it was not a joke. On April 1, the U.S. House of Representatives voted to legalize marijuana. The bill, dubbed the MORE Act, was passed mostly along party lines by a vote of 220-204. Just three Republicans voted in favor and two Democrats opposed. 

If the MORE Act becomes law, it would deschedule marijuana by removing it from the list of federally banned drugs under the Controlled Substances Act. Marijuana products would be subject to a federal excise tax, starting at 5% for the first two years after enactment and rising to 8% by the fifth year of implementation. An “Opportunity Trust Fund” would be created, where half of the tax revenue would support a “Community Reinvestment Grant Program,” ten percent would support substance abuse programs, and forty percent would go the federal Small Business Administration to support implementation of a newly created equitable licensing grant program. Marijuana producers and importers would need to obtain a federal permit, and they would also need to pay $1,000 per year in federal taxes for each premises they operate. 

The MORE Act, however, is expected to fail in the Senate. Partly because of the politics, but also because the Senate has its own comprehensive bill on marijuana reform called the Cannabis Administrative and Opportunity Act (the “CAO Act”), which is set to be reintroduced later this month following several months of public comment and revisions. As opposed to the MORE Act, the CAO Act would impose a 25% excise tax on marijuana products. The gap, experts suggest, is too wide, creating what seems will be an inevitable deadlock, and another year of failed reforms. 

Strassburger McKenna Gutnick & Gefsky is tracking this evolving issue at the federal and state levels. Questions about marijuana or CBD businesses?  Contact me at mmorella@smgglaw.com or (412) 281-5423.  Questions about marijuana use by you or your employees can be directed to Jean Novak, who is Chair of the Allegheny County Bar Association’s Medical Marijuana and Hemp Committee, is also co-chair of SMGG’s Employer-Employee Relations practice and regularly advises clients on marijuana-related issues. She can be reached at jnovak@smgglaw.com or at (412) 281-5423.

On March 31, 2022, the Small Business Administration issued several Final Rules, as part of the ongoing effort to update the Small Business Size Standards for many industries. 

The SBA size standards are important – businesses that qualify as “small” under these size standards can gain access to many additional opportunities set aside for small businesses.  The size standards are also important for businesses looking to qualify for Disadvantaged Business Enterprise (DBE) certification.  To be a DBE, you must meet the SBA size standards for your primary industry code (i.e. your NAICS code).

One of the more notable increases is for Engineering Services (NAICS 541330) which increased from $16.5 million to $22.5 million.  This is a welcome increase for engineering firms that look to benefit from the infrastructure spending.

Want to check to see if your NAICS code was one that had a change?  Refer to the links below, as the most up-to-date table of all NAICS codes (in the Code of Federal Regulations) does not yet include this new information. Please also keep in mind that the tables provided on the SBA’s website have not been updated since 2019 and do not have the most up-to-date information.

Links to the four Final Rules issued on March 31, 2022 and effective May 2, 2022:

If you or your company have questions about qualifying as a small business, please contact Danielle Dietrich at 412-227-0284 or ddietrich@smgglaw.com.

Medical spas (“Medspas”) offer luxurious treatments like massages, salt glows, and seaweed wraps. They also offer clinical procedures like Botox, laser hair removal, and dermabrasions. In Pittsburgh and the surrounding areas, these services are in high demand, and medical professionals and entrepreneurs are eager to break into the industry. But before they do, or if they already have, they should be aware of Pennsylvania’s Corporate Practice of Medicine Doctrine (the “CPOM”).

The CPOM stems from a 1938 Pennsylvania Supreme Court Case in which the Court determined that a department store could not employ optometrists in an optometry practice owned by the store. The Court’s decision focused on the principle that “a licensed practitioner of a profession may not lawfully practice his profession among the public as the servant of an unlicensed person or a corporation”. Following precedent from other state courts, the Court held that a corporation “cannot possess the personal qualities required of practitioners of a profession” because the licensed professionals would “owe their primary allegiance and obedience to their employer rather than to the clients or patients of their employer.” 

In light of Gimbel Bros., Pennsylvania’s layered statutory and regulatory scheme produces the CPOM which generally requires that all medical services be rendered exclusively by (i) licensed medical professionals  or (ii) business entities wholly owned by licensed medical professionals. This is not only to ensure safety, it is also to ensure medical professionals maintain high professional standards and retain autonomy over decisions related to the provision of medical services. Medspas that do not comply with the CPOM risk criminal and civil liability or enforcement from the state’s licensing boards.

Questions often arise as to what qualifies as a medical service, who qualifies as a licensed medical professional, and who should perform what Medspa services. The lawyers at Strassburger McKenna Gutnick & Gefsky are prepared to answer these questions, provide startup consultation, and offer solutions regarding compliance issues. Should you have any questions or wish to discuss how the CPOM affects your Medspa, please contact Matt Morella at mmorella@smgglaw.com, Mike Nicolella, at mnicolella@smgglaw.com, or Erica Laughlin at elaughlin@smgglaw.com. You can also reach us by phone at 412-227-0289.


1 Neill et al. v. Gimbel Bros., 199 A. 178 (Pa. 1938)

2 Id. at 219, quoting McMurdo v. Getter, 10 N.E.2d 139, 140 (Mass. 1937). 

3 Id.

4 63 P.S. § 422.10; 63 P.S. § 271.3. 

5 15 Pa.C.S.A. § 8105;  15 Pa.C.S.A. §  8996(b); 15 Pa.C.S.A. § 2923(a) (all providing that “all of the ultimate beneficial owners of the interests in” a limited liability company or corporation that provides medical services must be licensed persons in the profession the entity practices).

The Sedona Principles clearly state that “[l]awyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner.” Sedona Conference Cooperation Proclamation (2008).  The Federal Rules (in particular FRCP 26) supports the spirit of cooperation to identify and fulfill legitimate discovery needs. In federal court, judges may find it unacceptable to for one party to search electronically stored information (ESI) with terms not agreed-upon by the other party.

What happens when one side doesn’t do an appropriate or adequate job in the ESI discovery process?  This is an absolutely appropriate time to seek court intervention and, possibly, sanctions.  In November 2021, Judge Bettlestone of the Eastern District of Pennsylvania issued a discovery decision allowing for sanctions for Defendants’ inadequate discovery methods. In Vasoli v. Yards Brewing Company, Defendants independently chose search terms and time periods for its ESI searching in the lawsuit.  A party employee deposition revealed that there was a critical email communication that was not produced in discovery.  After the deposition, Defendants produced the email.  This naturally prompted Plaintiff’s concerns about their opponents’ ESI searching methods.  The judge held a discovery conference call and it became clear that Defendant’s searching techniques had some holes.  After that call, Defendant sought to cure its shortcomings by conducting an additional ESI search with Plaintiff’s name within two company custodial accounts.  This resulted in an additional 841 pages of emails and it begged the question why such a straightforward search wasn’t previously used for these custodians.

As a sanction, the judge considered ordering a Rule 30(b)(6) deposition of the person familiar with how the searches had been conducted.  Defendant protested, claiming attorney-client privilege and the attorney work-product doctrine related to its ESI search methodology and decisions. The court rejected both arguments, stating in part that “neither the privilege nor the doctrine, however protects facts from disclosure.”  Vasoli at *2 (citations omitted).  Therefore, a factual description of what counsel did will not necessarily require the disclosure of confidential client communications.  Also, the practical steps taken by the attorney to identify responsive documents do not necessarily encroach on the thought processes of counsel. Therefore, the steps that the party took to search for and produce relevant documents were discoverable and the judge imposed, as a sanction, a 30(b)(6) deposition into Defendant’s discovery processes.

Takeaways:

  1. You have a professional responsibility to produce responsive documents relevant to a party’s claim or defense and proportional to the needs of the case. FRCP 26(b)(1).
  2. There are cases where the negotiation and agreement of an ESI protocol is more appropriate than others. There are pros and cons to each methodology (to be discussed in a future blog).
  3. Be wary that your ESI discovery processes are likely not protected by either the attorney-client or work product doctrine protections.

When facing litigation, your case will involve electronically stored information. Strassburger McKenna Gutnick & Gefsky has teamed with KLDiscovery as our preferred eDiscovery vendor and can assist you with the most up-to-date and efficient methods to manage discovery in your litigation. Gretchen Moore chairs the firm’s eDiscovery Committee and Litigation Practice Group.  She can be reached at gmoore@smgglaw.com or (412) 227-0275.

Most Disadvantaged Business Enterprise (DBE) certified businesses are generally aware that they have some sort of duty to report changes in their business at some point.  Some think that changes only need to be reported in the yearly affidavit. This is not the case. This blog will explain what, when, and how changes must be reported to your certifying agency.

What to Report:

Section 26.83(i) requires that a DBE report all changes that may change its eligibility for DBE status, including:

When to Report:

Section 28.83(i)(3) requires that a certified DBE report all changes within 30 days of the change.

How to Report:

Under Section 28.83(i)(3), the changes must be reported via a sworn affidavit (i.e. witnessed by a notary).  You must also provide supporting documentation evidencing the change.  For example, if the bylaws changed, you must submit a copy of the new bylaws.  If a new owner bought into the company, you must provide those documents.

What Happens if You Don’t Report?

If your business does not report these changes within 30 days, you will jeopardize your DBE certification.  The certifying agency may immediately suspend your DBE certification without the required notice and hearing process set forth in Section 26.87(d).  During the suspension, the DBE may not be considered to meet a contract goal, and any work it does on a contract received under the suspension may not be counted towards project goals.  These reporting requirements are taken very seriously.

If you or your company needs advice regarding DBE certifications, including reporting changes, please contact Danielle Dietrich at 412-227-0284 or ddietrich@smgglaw.com.