Friday, May 31, 2013

Business Basics 101 Part 2

Attorney Beth Slagle was interviewed for a second time on Business Basics 101 by Rebecca Harris the Director of the Center for Women’s Entrepreneurship at Chatham University on Radio 90.5 WESA.  In the interview Beth talks about choosing the best business entity, from partnerships to sole proprietorships.  Please click on the following link to hear Beth’s interview in its entirety:

Beth Slagle (left) and Rebecca Harris (right)

For more information on starting your business please contact Beth Slagle at

Thursday, May 30, 2013

Practical Implementation of the Affordable Care Act for Small Businesses

Meyer, Unkovic & Scott LLP and SMC Insurance Agency are sponsoring a program entitled "Practical Implementation of the Affordable Care Act for Small Businesses" on Thursday, June 6, 2013.  Joseph A. Vater, Jr. and Jason Mettley of Meyer, Unkovic & Scott will be presenting along with Manda Sanders of Highmark.

The Program is intended for business owners, CEOs, presidents, and senior executives responsible for employee health benefit decisions.  The program is split into two sessions: Session A - for businesses not likely to grow past 50 and Session B - for businesses that employ more tan 50 or may get there by the end of 2013.

Session A

8:30 - 9:00 Registration/Continental Breakfast

9:00 - 11:00 With the deadline for compliance with the Affordable Care Act inching closer, health care reform is at the forefront of decision making by many small business employee benefit plan advisers. In this session, our subject experts will cover the pros and cons of offering health insurance, as well as how to communicate these changes to your employees. Time will be allowed for questions and answers. This session is intended for businesses not likely to grow past 50.

Session B

12:30 - 1:00 Registration/Refreshments

1:00 - 3:00 As the deadline for compliance with the Affordable Care Act gets closer, the business and benefit decisions you make now through the end of the year can dramatically impact your level of health care reform compliance come January 1, 2014. In this session, our subject experts will cover the definition of FTEs and navigate you through calculations in specific situations. Time will be provided for questions and answers.  This session is provided for businesses that employ more than 50 or those that may get there by the end of the year.

Location:  SMC Business Councils Headquarters, Bldg 801, 1382 Beulah Rd, Pittsburgh, PA 15235-5068

Cost:  SMC Members: No Fee, SMCIA Clients: No Fee, Non-Members/Clients: $50

Wednesday, May 29, 2013

Meritas Capability Webinar - The Secret to Successfully Bringing Foreign Workers to the US

Joel Pfeffer, Esquire
All interested Meritas attorneys are welcome to join Meyer, Unkovic & Scott attorney Joel Pfeffer on Tuesday, June 4, 2013 for a Webinar entitled:  The Secret to Successfully Bringing Foreign Workers to the US.
Every Meritas law firm that works with (or expects to work with) U.S. companies having global operations or foreign companies doing business in the U.S. should participate in this webinar. Whether your firm is assisting employers looking to hire foreign nationals for positions in the U.S. or advising multinational companies wanting to transfer workers into the U.S., this briefing will address your concerns and answer your questions. Among the topics addressed will be temporary and permanent visa options for employment; the various categories available for temporary visas; and several existing options for long-term employment. This timely webinar will provide a framework for understanding the law and provide valuable suggestions as to which options are best for your clients.

Date: Tuesday, June 4, 2013

Time: 11:00 - 12:00 p.m. U.S. Central Daylight Time

To register, please click on the following link:

Friday, May 24, 2013

FINRA Rule 12206: Statute of Repose or Statute of Limitation?

Brian J. Sommer
Under the FINRA rules of procedure, the grounds for a pre-hearing dismissal are limited.  FINRA Rule 12206 is one of those limited options.  Rule 12206 states that “no claim shall be eligible for submission to arbitration under the [FINRA] Code when six years have elapsed from the occurrence or event giving rise to the claim.”  Confusion exists as to whether to treat Rule 12206 as a statute of repose, i.e., a substantive limit on the agreement to arbitrate, or as a statute of limitation which can be subject to tolling and the discovery rule.  This is because historically, courts were inconsistent in their treatment of Rule 12206’s NASD predecessors.  Current court decisions suggest the trend towards treating Rule 12206 as a statute of limitations which can be subject to tolling and the discovery rule and thus requiring the hearing of evidence.  As a result, Rule 12206 cannot be utilized, at least in one jurisdiction and potentially others, to dismiss claims on a pre-hearing basis.

Prior to 2002, the issue before most courts was whether or not rules, such as Rule 12206’s predecessor, NASD Rule 10304, were subject solely to their review or solely to the arbitrator’s review.  There were decisions on both sides.  While some courts held that the Rule was solely the purview of the arbitrator and, by extension, could be treated as a statute of limitation and thus subject to tolling and the discovery rule, other courts concluded that Rule 12206’s predecessors were statutes of repose, i.e. substantive limits on the agreement to arbitrate that were not subject to tolling or the discovery rule and thus were within the court’s power to determine whether the claims were time barred or not.  Still the decisions by other courts sought a middle ground approach that started the six-year clock running from events other than the initial purchase, such as a later recommendation to hold onto an investment, continuing breaches of fiduciary duty, and/or the active concealment of wrongdoing can also be an events or occurrences from which a claim can arise thereby not triggering Rule 12206’s six-year limitation.

In any event, the rationale underlying those decisions that placed the power to decide with the courts, were eviscerated by the U.S. Supreme Court in Howsam v. Dean Witter, 357 U.S. 7985 (U.S. 2002).  In Howsam, the High Court held that NASD Rule 10304 was a matter presumptively for the arbitrator and not for a judge to decide since the time limit rule was more of a gateway question and not a question of arbitrability.  Howsam accordingly overruled the justification used by earlier decisions that held that Rule 12206 and its predecessors were questions of what the parties contractually had agreed was eligible for arbitration and were not therefore statute of limitations subject to tolling.  Consequently, a number of courts have held that post-Howsam, Rule 12206 is not a substantive limit on agreement to arbitrate but rather it is akin more to a statute of limitations subject to interpretations that include tolling provisions or discovery rule.  See Mid-Ohio Securities v. Estate of Burns, 790 F.Supp. 2d 1263, 1271-1272 (D. Nev. 2011).  See also, Oshidary v. Purpura-Androiola, 2012 U.S. Dist. LEXIS 81367 (N.D. Cal. June 12, 2012).

Post-Howsam, at least one appellate court has held that Rule 12206 is in essence a statute of limitations without explicitly saying so.  More critically, that court has held that Rule 12206 cannot be used in Pennsylvania to dismiss claims prior to a hearing on the merits, thereby effectively eliminating Rule 12206 as grounds for a pre-hearing dismissal.

In Andrew v. CUNA Brokerage Services, the Pennsylvania Superior Court considered whether it was appropriate for the arbitrators to dismiss the claimant’s causes of action pursuant to NASD Rule 10304(a) and FINRA Rule 12206 when the arbitrators only conducted a prehearing telephone conference as required by FINRA Rule 12206.  The Superior Court determined that it is inappropriate for arbitrators to dismiss a claim prior to the close of a claimant’s case-in-chief.  976 A.2d 496, 502 (Pa. Super. 2009).  The court noted that where a matter is submitted to arbitration, arbitrators are obliged to abide by the minimal procedural requirements necessary for a common law arbitration which entails granting the parties a full and fair hearing.  Id., infra.  Consequently, in Pennsylvania, there can be no pre-hearing dismissal of claims pursuant to Rule 12206 as there must be a hearing first.

Because Pennsylvania is one of many states that adopted the Uniform Arbitration Act, although not controlling, the rationale of Pennsylvania Superior Court’s decision may have application beyond the keystone state’s borders.  In any event, post-Howsam, the rationale that Rule 12206 is a statute of repose is, at best, on shaky ground.
Consequently, it appears that the trend will be to treat Rule 12206 as a statute of limitation and not as a statute of repose.

Monday, May 20, 2013

Who Owns Rights to Marcellus Shale Gas? Mineral Estate Owner or Oil and Gas Estate Owner?

Butler v. Charles Powers Estate, et. al, 2013 Pa. LEXIS 789 (2013)

Frank Kosir, Jr., Esquire
This matter addressed the issue of whether title to Marcellus shale gas vests in the owner of the mineral estate or the owner of the oil and gas estate.  John E. Butler and Mary Josephine Butler (the “Butlers”) are the owners of a two hundred and forty (240) acre tract of land (the “Property”) situated in Apolacon Township, Susquehanna County, Pennsylvania.  In the early 1900s, the Property was conveyed by Charles Powers to one of the Butlers’ predecessors in interest, the deed of conveyance including a clause reserving, inter alia, “one half the minerals and Petroleum Oils to said Charles Powers his heirs and assigns forever.”  In 2009, the Butlers commenced an action against the Estate of Charles Powers (the “Estate”) and all heirs and assigns thereof, seeking to quiet title to all “minerals and petroleum oils” under the Property based upon their alleged adverse possession thereof.  In response, William H. Pritchard and Craig L. Pritchard (the “Pritchards,”) heirs to the Estate, filed an Answer and a Motion for Declaratory Judgment, contesting the Butlers’ adverse possession claims, and asserting that the reservation clause included Marcellus shale gas.  The Butlers demurred to the declaratory judgment claims asserting inter alia that, as natural gas was not included in the reservation clause, the Pritchards lacked standing.  The trial court, relying upon the long-standing rules of law set forth in the Pennsylvania Supreme Court’s decisions in Dunham and Shortt v. Kirkpatrick, 101 Pa. 36, 1882 Pa. LEXIS 216 (1882) and Highland v. Commonwealth, 400 Pa. 261, 161 A.2d 390 (1960) (holding that, where an exception or reservation in a deed simply reserves “minerals,” and makes no specific reference to oil or natural gas, a rebuttable presumption is created that the grantor did not intend for the reserved “minerals” to include oil or natural gas.”) concluded that natural gas is not classified as a “mineral” under Pennsylvania law, and dismissed the Pritchards’ claims.

Following the trial court’s determinations, the Pritchards filed an appeal to the Pennsylvania Superior Court asserting inter alia that the trial court had erred in relying upon Dunham and Highland, for several reasons.  First, prior to Dunham, the rule in Pennsylvania had been that any conveyance of “minerals” included natural gas and that, as the deed at issue in Dunham had been executed with that understanding, Dunham was erroneously decided.  Also, both Dunham and Highland involved disputes regarding the ownership of conventional gas, whereas the matter at hand deals with the ownership of Marcellus shale gas, an unconventional gas.  Finally, the Pritchards also asserted that the trial court’s decision was inconsistent with U.S. Steel Corporation v. Hoge, 503 Pa. 140, 468 A.2d 1380 (1983) (holding that title to natural gas found in coal is in the owner of the coal seam, while title to migratory coal bed gas is in the owner of the property to which the gas migrates) contending that, as the natural gas found in Marcellus shale can only be extracted by hydrofracturing, it is not a migratory gas, and title to the Marcellus shale gas is in the owner of the shale.

On appeal, our Superior Court reversed, (2011 Pa. Super. LEXIS 2710 (2011)), and remanded the matter to the trial court for additional proceedings.  In issuing its opinion, the court affirmed Dunham and Highland concluding that, as the reservation clause specifically reserved an interest in “petroleum oil” but failed to specifically reserve any interest in “natural gas,” no natural gas interest had been reserved.  Furthermore, as the record established that none of Charles Powers’ heirs had made any effort to claim any rights in the natural gas, it was evident that Charles Powers had not intended to reserve any interest in the natural gas.  However, the court concluded that the Pritchards’ claims could not be dismissed under Dunham and Highland without additional information regarding whether, inter alia, (1) Marcellus shale constitutes a “mineral” under Pennsylvania law, (2) the rule regarding ownership of coal gas established in Hoge also applies to Marcellus shale gas, and (3) Marcellus shale gas is a conventional gas, the ownership of which is governed by Dunham and Highland.  As the record did not adequately address these issues, the trial court needed to conduct a hearing on the issue of whether Marcellus shale gas was included in the reservation.

On appeal, our Supreme Court reversed.  In issuing its ruling, the court examined the numerous appellate court cases interpreting the Dunham Rule dating back more than one hundred and thirty years, and found no reason to strike or modify the Dunham Rule.  Rather, the court found that the Dunham Rule has been consistently applied and has always stood for the proposition that, absent the inclusion of the terms “oil” or “natural gas,” a reservation of “minerals” in a deed did not reserve oil or gas rights.  Since the reservation in the deed in question did not include the term “natural gas,” the Dunham Rule placed the burden upon the Pritchards to establish, by clear and convincing parol evidence, that the Grantor had intended to reserve natural gas rights, and the Pritchards had failed to provide any such evidence.  Furthermore, numerous prior Pennsylvania appellate court cases have held that minerals must be metallic in nature and, since neither oil or gas are metallic, they could not be classified as minerals.   Finally, the court differentiated its decision in Hoge II noting inter alia that, as the gas at issue therein was coalbed methane gas, a dangerous byproduct of coal production that is actually derived from the mineral and requires proper ventilation, the Dunham Rule was not applied as ownership of the gas had to vest in the owner of the coal in order to assure the safe extraction of the coal.    For these reasons, as there was no evidence to support a conclusion that the Pritchard’s predecessor in interest had intended to reserve any oil or gas rights, no hearing was required on the issue of whether Marcellus shale gas was included in the reservation, and the Superior Court had erred in ordering such a hearing.

Friday, May 17, 2013

Mary McGinley Honored by Duquesne University

Mary McGinley was selected by the Women's Law Association of the Duquesne University School of Law as the 2013 recipient of its Woman of the Year award.  Mary was honored at an event on April 23rd.  Please click here to read full article from Duquesne University.

(Pictured left to right:  Managing Partner, Patricia Dodge, Mary McGinley, Mary's Father, and Russell Ober, Jr.)

Mary received her Juris Doctor degree from the Duquesne University School of Law in 2002 and received her Bachelor’s degree from the Pennsylvania State University in 1999.  While in law school, she was a member of the Duquesne Law Review and studied at China University of Political Science and Law in Beijing.

She is currently Of Counsel at Meyer, Unkovic & Scott LLP and a member of the firm’s Business Litigation and Tort Litigation Groups. In her practice, Ms. McGinley has represented a broad range of corporations in a variety of matters, including closely held corporations in shareholder disputes, and leading manufacturers in contractual disputes. She has also represented individuals in estate litigation matters before the orphans court and in employment restrictive covenant disputes in both state and federal court.  She has obtained favorable results for clients in jury and non-jury trials.

In addition to receiving the Duquense University School of Law Woman of the Year award, she was named a 2012 Athena Young Professional Award finalist.  In 2011, she was given the Outstanding Young Lawyer Award by the Allegheny County Bar Association, which recognizes outstanding leadership and distinguished service to the legal profession.  She was also named a “Rising Star” by Super Lawyers for the past three years.  Finally in 2009, she was selected by The Legal Intelligencer as a “Lawyer on the Fast Track.”

Ms. McGinley is an active member of the Allegheny County and Pennsylvania Bar Associations.  She has served on the Allegheny County Bar Foundation’s Board of Trustees as well as several of its committees.  She serves as Co-Chair of Attorneys Against Hunger, an annual campaign that benefits local hunger agencies and that is sponsored by the Allegheny County Bar Foundation.  Ms. McGinley also served on the Allegheny County Bar Association’s Judiciary Committee, which rates judicial candidates to help voters make informed decisions.

Thursday, May 16, 2013

Contractors Need To Be Aware of Law's Limits

Brandon B. Rothey
Brandon Rothey's  article, “Contractors need to be aware of law's limits,” by was featured in the Business Workshop section of the Pittsburgh Post-Gazette. Please click here to read what Brandon had to say.  

Wednesday, May 15, 2013

Validity Variance Relief

Hunt v. The Zoning Hearing Board of Conewago Township, 2013 Pa. Commw. LEXIS 39, 61 A.3d 380 (2013)

Frank Kosir, Jr., Esquire
This matter addressed the issue of whether a local zoning ordinance requiring all residential lots to abut a public road as a condition to their use for residential purposes was confiscatory, thereby entitling the owners of landlocked parcels to a validity variance.  Scott A. Hunt, Vicki E. Hunt and Sandra R. Glick (“Owners”) were the individual owners of a total of three parcels of real property (“Parcels”) situated in Conewago Township (“Township”), York County, Pennsylvania.  The Parcels are situated in the Township’s C-v conservation district, and are part of a subdivision created in the late 1800s.  Access to the Parcels is achieved by passing over the lands of an adjoining property owner by virtue of a fifty-foot wide easement.

In the 2000s, the Township passed an amendment to its zoning ordinance (“Ordinance”) requiring that all lots situated in the C-v district abut a public roadway in order to be used for residential purposes.  In response, the owners requested a determination from the Township’s zoning hearing officer that the Parcels were not subject to this requirement due to their having access to a public road by virtue of the easement.  The zoning officer concluded that, since the language of the Ordinance required lots to abut a public road in order to be used for residential purposes, the Parcels were non-compliant, and could not be used for residential purposes.  The owners then appealed to the Township’s Zoning Hearing Board (“Board”) seeking, inter alia, variances from the Ordinance to permit for residential construction on the Parcels or, in the alternative, validity variances establishing their right to use the Parcels for residential purposes.  After conducting a hearing, the Board denied all of the Owners’ requests, concluding that the Ordinance was clear on its face and that, as there was no dispute that the Parcels did not abut a public road, they could not be used for residential purposes.  The Owners then appealed to the York County Court of Common Pleas, which affirmed.

On appeal, our Commonwealth Court reversed.  In issuing its ruling the court noted that, in order to establish its right to a validity variance, an applicant need not satisfy all of the elements required for a standard use or dimensional variance.  Rather, an applicant for a validity variance must establish that the zoning regulation from which it seeks relief is “restrictive to the point of confiscation” and that the issuance of a validity variance is necessary to permit a reasonable use of its land.   In this instance, the Ordinance precluded any type of use on parcels that did not abut a public road and, as the Owners’ Parcels are not located adjacent to a public road, essentially rendered them unusable and valueless.  For these reasons, the Ordinance was confiscatory in nature, and the Owners were entitled to their requested validity variance relief. 

Tuesday, May 14, 2013

Drafting To Avoid Or Win Litigation - Pennsylvania Bar Institute CLE Program

Tony J. Thompson, Esquire
Attorney Tony J. Thompson will be presenting "Preliminary Considerations of a Breach" on July 30, 2013 at 10:00 am for the Pennsylvania Bar Institute.  Details of Mr. Thompson's presentation will include Review of the Contract, Identification of Potential Parties, Notice Provisions, Notice to Carriers, Opportunities to Cure - Understanding UCC Issues, Demand for Indemnification and Preservation of Evidence.

The PBI Program will include both a morning session and an afternoon session which offer a total of 6 CLE credits.  Please click here for more information about this program or to register.

Program Location:
PBI Professional Development Conference Center
Heniz 57 Center
339 Sixth Avenue, 7th Floor
Pittsburgh, PA

Date:  Tuesday, July 30, 2013
Morning Session:  9:00 am
Afternoon Session:  1:00 pm

Monday, May 13, 2013

Staying Sustainable - Presentation on Tuesday, May 14th

Staying Sustainable
High Performance Building Codes, Energy Benchmarking and Green Leasing - a focus on national trends coming to the region.

Chad Michaelson of Meyer, Unkovic & Scott LLP and Billy Grayson of WESCO Distribution, Inc. will present Staying Sustainable on Tuesday, May 14, 2013 at the Duquesne Club.  Following the presentation Chad and Billy will host a panel discussion on this topic that will be moderated by Kevin McKeegan of Meyer, Unkovic & Scott LLP. 

Tuesday, May 14, 2013 from 11:30 pm - 1:15 pm

$45 members; $65 non-members

Duquesne Club, 325 Sixth Avenue, Pittsburgh, Pennsylvania 15222 | 412-391-1500

For additional information about this program or to register please contact Melodee Bright.

Saturday, May 11, 2013

ABA Intellectual Property Roundtable - Thursday, May 16, 2013 @ Noon

David G. Oberdick, Esquire
Meyer, Unkovic & Scott is proud to sponsor the Pittsburgh Roundtable for the American Bar Association Intellectual Property Litigation Section.  These quarterly meetings allow IP litigation practitioners to network with other attorneys and discuss topics of interest.

Who Should Attend:  Practicing attorneys interested in intellectual property matters.  Need not be members of the ABA IP Litigation Section.

Lunch will be provided by Meyer, Unkovic & Scott.

Topic:  Addressing Willful Patent Infringement in a Post-C.R. Bard World

Host: David G. Oberdick, Esquire

Date: Thursday, May 16, 2013 | 12:00 noon

Location: Meyer, Unkovic & Scott LLP
Henry W. Oliver Building, 12th Floor
535 Smithfield Street
Pittsburgh, PA  15222-2304

Please RSVP by May 14, 2013 to:

Click here for a printable invitation.

Thursday, May 9, 2013

Business Basics 101

Attorney Beth Slagle was interviewed on Business Basics 101 by Rebecca Harris the Director of the Center for Women’s Entrepreneurship at Chatham University on Radio 90.5 WESA.  In the interview Beth discusses the process for creating a roadmap for business success by going through the basics of starting your business.  Please click on the following link to hear Beth’s interview in its entirety:

Beth Slagle (left) and Rebecca Harris (right)

For More information on starting your business please contact Beth Slagle at