We are very pleased to have achieved a tremendous result for our clients in their ongoing lawsuit against Montgomery County Commissioner Joseph C. Gale in the Eastern District of Pennsylvania.
Following months of litigation and settlement negotiations, Commissioner Gale agreed to immediately cease blocking individuals from following his social media accounts, and further agreed to immediately cease deleting comments that he solely finds unfavorable made to those accounts.
The agreement, signed by all parties, was approved in an order signed by the Honorable Timothy J. Savage of the United States District Court for the Eastern District of Pennsylvania.
The order is nothing less than a thorough victory for our courageous clients, who achieved each of their desired outcomes in this litigation and ensured that their Constitutional rights–and those of Commissioner Gale’s constituents and followers everywhere–will be honored.
Walsh Pancio is proud to stand with our clients to have protected the First Amendment. Walsh Pancio is privileged to have worked with Mudrick & Zucker, P.C. in Blue Bell and the Philip Press Law Office in Norristown in the prosecution of this case.
See article from Pottstown Mercury for more.
On June 29, 2020, on behalf of seven (7) individual constituents and one (1) local business, Walsh Pancio along with the firms Mudrick & Zucker, and Philip Press Law Office filed suit in the United States District Court for the Eastern District of Pennsylvania against Montgomery County Commissioner Joe Gale over blocking social media posts.
While there have been similar suits in other jurisdictions in recent years against President Donald Trump and U.S. Rep. Alexandria Ocasio-Cortez for blocking people on Twitter from seeing their accounts, this is the first case of its kind in Pennsylvania.
The suit requests injunctive relief requiring Commissioner Gale to unblock Plaintiffs and restore access to each his public social media accounts; to immediately cease deleting, excising, or disposing of comments or content uploaded to his public social media accounts; and an Order declaring that his conduct in blocking social media posts violates the First Amended to the United States Constitution and/or Article I Section 7 of the Pennsylvania Constitution.
Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction filed June 29, 2020 is waiting for a hearing to be scheduled by Federal Judge Timothy Savage of the Eastern District of Pennsylvania.
“If Commissioner Gale chooses to engage in speech on his various social media platforms, all of which are so intertwined with his persona as a public actor, he cannot then supplant the voice of those who wish to post a contrary viewpoint, nor can he deny others the opportunity to experience the full panoply of ideas in this digital public square,” Attorney Joseph P. Walsh said. “He cannot censor the Vox Populi.”
“Commissioner Gale has the right under the First Amendment to say whatever he wishes to say, no matter how abhorrent the viewpoint might be,” Attorney Michael J. Lyon added. “Our clients simply request that he extend them the same right that they are entitled to under the First Amendment as well.”
Any inquires, please contact Attorney Michael J. Lyon of Walsh Pancio, LLC.
On March 16, 2020, the Supreme Court of Pennsylvania declared a statewide judicial emergency on account of COVID-19. Two days later, on March 18, 2020, Governor Tom Wolf announced that all but “life-sustaining” businesses in Pennsylvania must shut down immediately.
In response, the Supreme Court directed that all courts are generally closed to the public (except for emergencies) subject to general and specific directives and exceptions. The Court extended the judicial emergency and closure of the courts first through April 30th, and later through June 1, 2020. There is no indication at this time that the closures of the courts will be extended by the Supreme Court after June 1st.
It is now left to the local courts to determine when and how to open to the public while simultaneously safeguarding the health and safety of court personnel, court users, and members of the public in light of the risks posed by the COVID-19 virus. Many local courts will begin to open on June 1, 2020.
While the physical office of Walsh Pancio closed its doors on March 19, 2020, the attorneys and staff were able to easily transition to working remotely. The attorneys immediately reviewed their calendars and began to reschedule previous in-person depositions as virtual depositions. We continued to conduct discovery, and file pleadings and motions. We also continued to conduct mediations, arbitrations, and settlement conferences remotely. We were prepared for a situation like this and stepped up when the time arrived. Throughout the statewide shutdown we continuously keep our clients informed and updated.
We wanted to take advantage of not having to be in court so that when the courts to open, we are ready to hit the ground running and serve our clients. Importantly, the attorneys at Walsh Pancio have continued to educate themselves on COVID-19 and the impact it will have on the legal community and the clients we serve. We took part in CLEs and even hosted our own CLE on the closing of courts and the statewide shutdown. We are more prepared than ever to serve our clients. If you need legal services, we are available to assist you – no matter the issue.
The attorneys at Walsh Pancio have been following the developments as the local courts plan to reopen to better serve our clients. We compiled the “need-to-know” and the “interesting” so you are better able to inform your clients what to expect.
What should attorneys and general court users expect beginning June 1, 2020?
By Order dated May 14, 2020, President Judge Thomas G. Parisi extended the judicial emergency to at least June 1, 2020. On June 1st, the Common Pleas and MDJ Courts will be reopened to the public.
President Judge Parisi postponed all jury trials until at least June 15, 2020. However, the court has begun to mail out jury summonses to potential jurors for upcoming trial dates. The summonses will contain designated reporting dates beginning June 15, 2020. These summonses are mailed in anticipation of the court’s ability to safely resume jury trials. This should not be taken as a guarantee.
If you are summoned for jury trial, check the court’s website frequently, and contact jury services to confirm that you are still required to appear. If you are an attorney, stay in constant contact with the assigned judge’s chambers and your client.
Anyone entering the courthouse must wear a mask or they will be denied entrance. Expect the enforcement of “social distancing” throughout the courthouse. For example, the number of people permitted on an elevator or in a hallway could be limited. Make sure to give yourself extra time to enter the courthouse with these new safety precautions in place.
Beginning June 1st, the Bucks County Court of Common Pleas and Magisterial District Judges (MDJ) courts will be open during normal business hours to conduct business.
Anyone who enters the courthouse or MDJ shall wear protective face masks upon entry, and shall continue to do so in all public or common areas of the courthouse. Patrons also must maintain social distancing and comply with all safety directives issued by the court.
According to the Bucks County entry protocol, there will be two tents at the base of the stairs and ramp of the main entrance to the courthouse where security officers will be stationed to ensure social distancing and to provide masks to those who arrive without one. They will also provide clear plastic bags to each person to place their belongings in that need to be scanned to prevent the contamination of the plastic containers.
There are also new security procedures when going to the Bucks County Courthouse. There will be markings on the floor for social distancing in the scanner line. The number of persons waiting to be scanned will depend on the available social distancing space at the entrance. As a result, plan for extra time to enter the courthouse.
There will be Sheriff’s representatives on the third and fourth floor of the Justice Center to monitor the hallways and address the needs of the courtrooms. The courtrooms will be sanitized during lunch breaks. If anyone exhibits signs of illness, they will be placed in a specified “Quarantine Room.” The courtroom will then be decontaminated before being used again.
Like other counties discussed herein, Bucks County suspended time calculations for purposed of time computation relevant to court cases or other judicial business, as well as time deadlines through May 31, 2020. Any legal papers or pleadings which were required to be filed between March 19, 2020 and May 31, 2020, will be deemed to have been timely filed if they are filed by June 1, 2020, or on a later date determined by the local court or the Supreme Court. The court also tolled judicial timelines from March 19, 2020 through May 8, 2020 pertaining to termination petitions.
Jury trials will not re-start in Bucks County until August 3, 2020 at the earliest.
In Chester County, the courts are closed to the public until May 31, 2020. Beginning June 2nd, all functions of the Common Pleas and MDJ courts are to be fully restored. Jury trials will begin no later than August 3, 2020.
As expected, safety protocols have been established. Everyone entering the Justice Center must wear a mask, and temperatures will be taken upon entering. Social distancing must always be practiced. The number of people permitted in the elevator will be extremely limited.
As with most of the counties surrounding Philadelphia, Delaware County extended its judicial emergency to June 1st. However, all calculations for purposes of time computation relevant to court cases or other judicial business, as well as time deadlines, were only suspended through May 11, 2020. Parties to a case, whether pro se or represented, were also required to meaningfully engage in good faith discovery. As such, if a Motion to Compel is filed against you, do not expect the court to deny the Motion based simply on the fact the courts were in limited operation.
If you had a civil arbitration listed up to June 1st, it will be rescheduled no more than 90 to 120 days after June 1st. If you had a civil bench or jury trial scheduled on or before June 1st, that will be rescheduled by the assigned judge. All matters comprising of civil miscellaneous lists will be rescheduled by Court Administration in a staggered manner 3-4 months after June 1st.
President Judge David Ashworth extended the judicial emergency to May 31st in Lancaster County.
All criminal jury trials scheduled for June 2020 were continued to July 2020. Criminal non-jury trials, however, may be scheduled with the permission of the President Judge. Civil jury trials scheduled for June 2020 are to be rescheduled by the presiding judge after consultation with the President Judge. Civil non-jury trials may be scheduled with permission of the President Judge.
All legal filings required to be filed between March 18, 2020 and April 30, 2020 will be deemed timely if they were filed within 60 days of the original filing date. Any legal filings required to be filed between May 1st and May 31st will be deemed timely if they are filed within 30 days of the original filing date.
If you practice criminal law in Lancaster County, the court has implemented a virtual guilty plea program.
Jury service is cancelled until June 30, 2020.
The Lehigh County courthouse is closed to the public through May 31, 2020.
Regarding the civil division, civil motions court will re-start after May 31st; arbitration. Jury and non-jury trials were continued through and including May 31st and will be given a new date. Hearings, arguments, and conferences not conducted by the assigned judge during the judicial emergency will be given a new date after May 31st utilizing advanced communication technology.
Time calculations for the purpose of time computations relevant to court cases and other judicial business, as well as time deadlines, were suspended through May 31st. Any legal papers, including original service, required to be filed or effective between March 17, 2020 and May 31, 2020 will be deemed to be timely filed, if they are filed by June 22, 2020, or on a later date as permitted by court order, subject to constitutional restrictions, statute of limitations or appellate court direction.
If you practice law in Montgomery County, expect to see drastic changes.
Beginning June 1, 2020, like the other courts, Montgomery County courts will be open to conduct business. However, other buildings and offices, including One Montgomery Plaza, the Juvenile Court Facility, and Domestic Relations Office, will remain closed to the public until further notice.
The tolling of time requirements, time limitations or filing deadlines imposed by court order or local rules during the period covered by the judicial emergency will expire. As such, legal papers or pleadings which were required to be filed between March 12, 2020 and June 15, 2020, shall be deemed to have been filed timely if they are filed by close of business on June 15, 2020.
The court has placed its protocols for each division on its website. Beginning June 1, 2020, in the civil division, all proceedings that cannot be resolved on the paper/filings will be conducted remotely. Those virtual hearings will be conducted via Zoom and have specified procedures. Attorneys are strongly encouraged to review those protocols promptly.
For all Case Management Orders or Rule 212 Conference Orders issued prior to March 12, 2020, the deadlines are extended for 3 months. That will be a welcomed reprieve for parties in cases that were approaching discovery deadlines.
If your practice involves dependency and/or delinquency, or if you are an MCAP, beginning June 1, 2020 juvenile division matters will be conducted remotely. The Court will conduct these hearings via Zoom. Placement reviews, delinquency reviews, and agreed dependency permanency reviews will be reviewed on written filings or papers. For some, this may be a welcoming change, as most placement reviews, delinquency reviews, and agreed dependency permanency reviews can be accomplished by agreement. If you practice family law in Montgomery County, your hearings will be held virtually for the foreseeable future as well.
Jury trials in Montgomery County are also postponed and may not re-start for many months.
Access to the courthouse will be limited to the main street entrance only. All individuals must comply with the established county health screening requirements. Individuals entering the courthouse must maintain appropriate social distancing, wear protective face masks, and comply with all safety directives provided by the court or county staff. Plan for an additional 30 minutes to enter the courthouse.
Unlike the other counties mentioned above, Northampton County is extremely specific. Please visit the County’s website for exact guidance for your case.
Time calculations for the purposes of time computations relevant to Northampton County local rules are suspended from April 14, 2020 to May 31, 2020.
The Court of Common Pleas of Philadelphia County has provided numerous notices to the Philadelphia Bar Association regarding its procedures moving forward. We strongly encourage specific review of the same.
In Philadelphia, all jury trials are cancelled through September 8, 2020. Unless counsel is notified specifically to the contrary, all in person criminal, civil, orphans’ court, municipal court and traffic court trials, hearings, and conferences scheduled through July 6, 2020 are administratively cancelled and shall be rescheduled.
In the civil division, make sure to check the docket for new arbitration hearing dates if you had an arbitration hearing scheduled between March 17, 2020 and April 13, 2020. Also look for rescheduling notices if you had a scheduled arbitration hearing between April 14, 2020 and May 29, 2020. All matters currently scheduled for Arbitration hearings in June of 2020 will have a virtual or remote settlement conference with a Judge Pro Tempore as opposed to an Arbitration hearing during the month of June. Civil matters previously listed for a settlement conference but postponed as a result of the judicial emergency will be relisted for a new settlement conference before a Judge Pro Tempore, who will have the ability and necessary technology to conduct conferences remotely.
Case management conferences are waived in any civil case previously scheduled for a case management conference between Tuesday, March 17, 2020 and Monday, June 1, 2020. In lieu of the conference, a Case Management Order will be issued assigning the case to either the Expedited, Standard or Complex case management track. We expect conferences to re-start again after June 1,2020.
In Philadelphia County, the suspension of time requirements, time limitations or filing deadlines expired on May 11, 2020. A notable exception to this rule is that a default judgement cannot be entered before June 15, 2020. In addition, any Notice of Intent required by Pa.R.C.P. 237.1 filed before May 11, 2020, must be refiled.
Recognizing that no party should gain an advantage as a result of the pending judicial emergency and that appropriate equitable considerations must be applied, the Court has adopted a protocol for extraordinary relief by agreement of the parties. No discovery deadline shall extend beyond September 8, 2020. However, in any Case Management Order in which the Discovery deadline ends subsequent to March 1, 2020, the parties may agree to extend the discovery deadline until July 6, 2020, August 3, 2020 or September 8, 2020 at their discretion by filing an appropriate praecipe.
The Supreme Court of Pennsylvania first gave the President Judges of each local court that authority to suspend time calculations within its judicial district, which included the suspension of Rule of Criminal Procedure 600.
When the Supreme Court closed all Pennsylvania courts to the public on March 18th, it suspended all time calculations for purposes of time computation relevant to court cases or other judicial business. After extending the end date for these purposes twice, the Supreme Court has made clear that all events, legal papers or pleadings which were required to be filed between March 19, 2020 and May 8, 2020, generally are deemed to have been filed timely if they are filed by the close of business on May 11, 2020. However, President Judges in individual counties have discretion to enforce deadlines prior to May 11, 2020, in the critical-functions arena as defined by the Supreme Court. As discussed previously, they also have the discretion to extend the deadline by which all papers must be filed to be considered timely.
Parties should also note that the Supreme Court supplemented its emergency order to add to the non-exclusive list of essential functions the “[c]ommencement of a civil action, by praecipe for writ of summons, for purposes of tolling statute of limitations.” As such, the judicial emergency did not toll the statute of limitations. The Court did make clear, however, that the requirement of service of original process was suspended until the judicial emergency was lifted. When the court re-opens, and service of original process begins again, be sure to check the court’s docket to make sure the plaintiff timely filed the praecipe for writ of summons.
The Supreme Court also made it clear – and encouraged – parties to continue conducting discovery. The judicial emergency itself may not provide a winning argument when faced with a Motion to Compel. The Supreme Court expected parties to continue moving cases.
While the courts are reopening, things will look very different. By all accounts, COVID-19 has most likely changed the practice of law, at least for the foreseeable future. There will be kinks in the beginning as everyone adjusts to the new normal. A lot of issues will now be resolved either on the papers or remotely by the Court. Depositions will most likely continue to be conducted remotely as people continue to practice social distancing. A lot of cases will now be resolved through ADR, instead of jury trials. Everyone is adapting to the “new normal.” Through it all, continue to work together and be cordial. We will get through this together.
[disclaimer – the information in this blog post is for informational purposes only and should not be considered legal advice.]
As the calendar turns to May, we naturally start thinking about summer vacations. For many here in greater Philadelphia and beyond, as it has for decades, that means a trip (or more) to the Jersey Shore.
The COVID-19 pandemic, however, has left lots of those plans uncertain. Tenants are worried about whether it’s even safe to stay in a rental for some time, and some others may not want to go at all. Conversely, landlords may be wondering whether it’s safe to rent their properties, or whether they might be exposed to liability for doing so if one or more of their tenants is infected with COVID-19.
Those questions are complicated. Given how suddenly and quickly the virus arrived and spread, there is no direct law governing what a landlord must do for its tenants as to COVID-19. No law directly governs a tenant’s rights following the pandemic either. But a quick examination of existing laws provides excellent guidance to both landlords and tenants.
DISCLOSURE OF COVID-19 AT THE RENTAL PROPERTY
Of particular importance to the landlord’s responsibilities during and after COVID-19 situation is New Jersey’s landlord disclosure requirement. Landlords in New Jersey must make several disclosures to tenants prior to renting a property, including the presence of lead paint and asbestos hazards, floods, and structural damage. New Jersey also makes it incumbent upon landlords to disclose any latent defects affecting the “habitability” of the premises.
None of New Jersey’s disclosure requirements explicitly require a landlord to disclose information about diseases, or COVID-19 in particular, to prospective tenants. However, given the confusion and worry that the pandemic has caused, an argument could be made that the presence of COVID-19 at the rental property affects the “habitability” of the residence, given that the virus would likely detract a significant number of people from wanting to rent it.
As such, if a landlord knows, or has reason to know, that the property has been rented by, housed, or hosted one or more individuals who have been infected by COVID-19 or exposed to it, they should strongly consider disclosing this to tenants. This includes tenants who have previously signed leases for the summer season, as well as prospective renters who may be considering one or more open terms. The landlord should advise the tenants when the infected person or persons inhabited the property, how long they were there for, and any steps the landlord took to disinfect the property after the infected or exposed person(s) vacated it. Disclosure of this information would alleviate any potential liability flowing from a tenant’s subsequent contraction of COVID-19 while staying at a landlord’s property.
Similarly, tenants who have signed leases for the 2020 summer season, or prospective tenants, will likely want to inquire of their landlords whether the property has been exposed to COVID-19. Whether the lease can be cancelled based upon the presence of COVID-19 would depend on the language of each individual lease, and further negotiations between landlord and tenant. It may be necessary to consult with a lawyer to assist in interpreting the lease and negotiating a particular resolution.
Landlords should also review their existing insurance levels and policies applicable to their renters. They should consider and whether those policies would respond to a claim by a tenant of COVID-19 infection during or after the rental term.
CLEANING AND DISINFECTING THE PROPERTY
New Jersey law does not mandate that a short-term rental property owner take specific steps to clean the property in between tenancies. Nor does New Jersey require a landlord to guarantee a virus and bacteria-free living space at the beginning of a tenancy. That said, many shore properties are rented for the summer on a week-to-week basis, with the beginning of each rental week starting in the afternoon (often around 1-2:00 pm) on a Saturday and ending on the following Saturday in the morning (perhaps 10:00 am). Between rental terms, landlords often use cleaning services to clean the units and make sure they are in acceptable condition for the new tenants who will arrive in the afternoon.
This may have sufficed in previous years. However, tenants in shore properties this summer will understandably expect that steps be taken to thoroughly disinfect the properties in light of the COVID-19 situation. And, property owners in New Jersey are generally required to act as reasonably prudent landowners would act under the same or similar circumstances. As the circumstances change, what a reasonably prudent person would do likely changes as well.
COVID-19 certainly represents a change in circumstances that must be considered by landlords. To ensure that they are taking action in accordance with the “reasonably prudent” standard, owners should review their procedures to clean and de-sanitize their units to ensure that thorough cleaning measures between tenancies are being undertaken. Indeed, it may be that precautions previously taken to clean and prepare the rental unit would be considered unreasonable during the summer of 2020. Perhaps more cleaning steps or services are necessary, or that different products must be used, in order to give renters assurances that reasonable and proper steps have been taken to prevent COVID-19 exposure.
Similarly, tenants concerned about the presence of COVID-19 in their rental units should inquire about the steps being taken to disinfect the property before the tenancy begins. Landlords who want to ensure that their rentals go smoothly would be wise to listen to tenant concerns and be prepared to respond to them. A simple addendum to a lease agreement is quite helpful to document any additional measures requested by the tenant and agreed to by the landlord.
WILL I EVEN BE ABLE TO GO?
Tenants should also be aware that many municipalities have enacted temporary bans of short-term rentals to prevent further spread of COVID-19. At least two such towns—Seaside Heights and Asbury Park—previously extended their bans on rentals through June 1, and many others have advised that the bans may be in effect indefinitely (although others have signaled that short-term rentals will commence soon). Other shore points with boardwalks previously ordered them closed, and advised that they may not re-open until after Memorial Day, or later. A ban on a short-term rental may make it impracticable or impossible to rent the property. Tenants should consult their leases to determine whether a provision has been included, often called a force majeure clause, that would provide a refund in the event that they cannot inhabit the property through no fault of their own.
Each individual municipality in New Jersey may also have their own rules for rental properties that landlords must abide by. These may include additional disclosures that landlords must make, or rules that tenants need to abide by. Consultation with an attorney as to these rules may be helpful.
The hope is that the Jersey Shore will be open for relaxation, recreation, and business during the summer of 2020. But the pandemic should cause landlords and tenants alike to consider new aspects of their rentals that they may not have previously thought of.
Attorney Michael Lyon has reviewed lease agreements and landlord-tenant situations, and can assist in reviewing a lease, or potentially negotiating an addendum or compromise to it. Contact Mike for a free initial consultation.
by: Mike Lyon
In December of 2014, the Philadelphia Eagles lost a pivotal home game to the hated Dallas Cowboys by a final score of 38-27. That was on the field.
What happened off the field–but in the stadium–that night was perhaps more important for event hosts, social gathering places, and entertainment arenas throughout Pennsylvania. A single altercation among fans that evening has now resulted in a huge victory for the Eagles in the Superior Court of Pennsylvania, one that could have long lasting ramifications for property owners and hosts of small and large events.
On the night of the game, Patrick Pearson, a longtime Cowboys fan, was in attendance wearing a vintage Cowboys jersey. He was with a friend during the game, and the two men went to the bathroom at halftime. When they got there, a handful of Eagles fans began taunting Pearson. In response, Pearson told the fans to “get a ring and we’ll talk” (referring to the fact that the Eagles had not yet won a Super Bowl, while his beloved Cowboys had won five). Eventually, a person walked up to Pearson and threw his Cowboys hat into a urinal. Pearson claimed that this sparked a large confrontation in which several individuals began to assault Pearson by holding him down, twisting his leg, and choking him.
When someone then called “security,” the alleged assailants ran off. Security personnel—who were employees of an outside company called “Apex” that had been hired by the Eagles—arrived to find Pearson on his feet and supported by a friend and another individual. Pearson’s ankle was badly injured; his foot was turned at a 90-degree angle. Pearson subsequently underwent two surgeries, had two rods and ten pins inserted into his right leg, and was in a cast for ninety days.
Pearson sued the Eagles and Apex, alleging that they were negligent in their deployment of security at Lincoln Financial Field, which he claimed caused him to suffer injury. The parties tried the case to a Philadelphia jury in May of 2018, which returned a verdict holding the Eagles 50% responsible for Pearson’s injuries, Apex 30% responsible, and Pearson himself 20% responsible. The jury awarded total damages of $700,000—apportioning the percentage responsibility led to a net award to Pearson of $350,000 against the Eagles, and $210,000 against Apex.
The Eagles appealed to the Superior Court, while Pearson and Apex eventually settled their dispute on undisclosed terms. The chief argument the Eagles made on appeal was that the Eagles did not owe a duty to Pearson to protect him against an assault in a Lincoln Financial Field bathroom. Specifically, the Eagles asserted that Pearson’s theory of negligence was that it was unreasonable for the Eagles not to have had a security presence inside the restroom, because the Eagles knew or should have known that violent altercations could have taken place there.
The Superior Court first undertook a comprehensive analysis of the law explaining the duty of social hosts to protect their guests from the acts of a third party. The Court noted the general rule is that a host is not liable “for the criminal conduct of another absent a pre-existing duty,” although there is a well-known exception to that rule when the host “assumes a duty…and so negligently performs that duty that another suffers damage.” See Pearson v. Philadelpia Eagles, LLC, et al., 2019 PA Super 304, ___ A.3d___, at 9 (Pa. 2019) (citing Feld v. Merriam, 485 A.2d 742, 745 (Pa. 1984) (internal citation omitted)). However, the Court also noted that the law does not place a duty on a host to protect against such criminal conduct unless “the [host] has reason to anticipate such conduct.” See Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96, 102 (Pa. Super. 2017) (further citation omitted).
Here, the Eagles did not dispute that they undertook a duty to protect their guests from fighting during games, nor did they dispute that they engaged Apex to provide security to accomplish that goal. However, the Eagles emphasized that no evidence was introduced during trial to suggest that the security program in place was inadequate or operated in a negligent manner. In fact, the only argument presented by Pearson was that the Eagles were negligent solely because they failed to have security stationed in their restrooms, and the Eagles argued that there was no evidence that they had any reason to anticipate violent conduct in its restrooms.
The Superior Court agreed with the Eagles. After reviewing the trial transcript, it concluded that the record “in no manner support[ed] the assertion that there was a history of violent assaults that occurred in the restroom. To the contrary, the record shows that incidents of violent assaults or fighting in the restrooms were a rare occurrence.” See Pearson, 2019 PA Super at 18. The court also found that the Eagles’ choice not to place security in the restrooms was justified, as the evidence demonstrated that the Eagles perceived a stronger likelihood of violent encounters in other areas of the stadium and chose to deploy enhanced security in those areas.
Pearson had separately argued that it had taken Apex personnel several minutes to arrive at the bathroom, asserting that this was evidence demonstrating that the Eagles had negligently operated the security program. The court disagreed, holding that the record lacked any evidence that Pearson’s injuries would have been avoided had the security personnel been more prompt. The court also rejected Pearson’s argument that his decision to wear opposing team apparel should have prompted increased security presence. Evidence revealed that the Eagles recognized that potential danger and had programs in place to combat it, including having certain security personnel wear opposing team attire and patrol the stadium in an undercover capacity to identify individuals who posed a threat to opposing team fans.
The Superior Court ultimately concluded that Pearson failed to present any evidence that the Eagles “were on notice that violent assaults regularly took place in the stadium’s restrooms or that [the Eagles] conducted their security program without reasonable care.”
The decision is a monumental win for social hosts and property owners in Pennsylvania. It is not enough, under Pearson, for an injured party to show that security personnel were not deployed in the specific location, or that they were late arriving. Rather, that person must show direct evidence that the host or owner undertook a duty to protect them from such an act, and that the host or owner knew, or had reason to know, that such an act could occur in the specific location of the incident. The decision would appear applicable not only to large scale event hosts such as sports teams, arenas, or concert venues, but also to smaller venues such as bars, restaurants, or cafes. When deciding to deploy a security presence, Pearson instructs that owners and hosts should consider the particular areas of their places of business that are likely to foster criminal or violent conduct and deploy security in those areas. As long as there is a reasonable basis for using security in certain areas and not deploying security in certain other areas, the owner or host is far less likely to face civil liability.