Monthly Archives: November 2017

OSHA DELAYS CRANE OPERATOR INDEPENDENT CERTIFICATION REQUIREMENT

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Industry News on Nov 21, 2017.

On November 9, 2017,the Occupational Safety and Health Administration issued a rule delaying for one year, until November 10, 2018, the implementation of a Construction Crane Operator Certification requirement that was scheduled to go into effect on November 10, 2017.  The  crane operator certification requirement, based on an OSHA standard published in 2010, would require an independent third party certification of crane operators via testing and training.  Comments received by OSHA from the construction community questioned whether the independent testing certification standards and evaluation protocol proposed by the OSHA rule were superior to the testing, training, and crane operator certification currently being provided by crane employers. There were also comments made suggesting that the testing and certifications currently being used by crane employers would conflict with the proposed independent certification testing standards.  To study this issue further, OSHA has delayed the implementation of the independent testing standard for an additional year.  In the interim, OSHA has extended for one year its requirement that it is the crane employer’s duty to ensure that its crane operators are competent to operate a crane safely.  Andrew B. Cohn acohn@kaplaw.com 610.941.2549      

Philadelphia Atlas

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Industry News on Nov 8, 2017.

Philadelphia is set to launch Atlas, a  comprehensive database which provides deed information, permits, 311 data, crime statistics, zoning appeals, and the registered community organization (RCO) for Philadelphia properties.  https://philly.curbed.com/2017/11/7/16617296/philadelphia-properties-land-vacant-lot-atlas-map-tool  

Service Rules for Mechanics’ Liens in Pennsylvania must be Strictly Followed

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Industry News on Nov 8, 2017.

The Philadelphia Court of Common Pleas decision in Bertino v. Clark-Dougherty, 2017 WL 4330687 (2017) is a reminder that the service rules for mechanics’ liens in Pennsylvania must be strictly followed.  In Bertino, the court granted preliminary objections and struck a mechanics’ lien claim because service of the notice of filing of the lien was made improperly, even though the property owner actually received the notice.  The Court found that service on the out-of-state property owner by regular mail, after a certified mailing went undelivered, was improper. Further, the lien claimant failed to file an affidavit of service within twenty days of the supposed service, as required by the mechanics’ lien law.  Due to the very technical nature of the lien law’s requirements, and because these requirement will be strict enforced, potential lien claimants should always consult counsel before attempting to perfect lien rights. “Hat-tip to Lynne’s Westclip distribution”  

Under what circumstances will a non-signatory to an arbitration agreement be bound to arbitrate?

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Arbitration/Mediation on Nov 8, 2017.

Two recent decisions deal with this sometimes perplexing problem.  In Burns v. Sky Zone, the Pennsylvania Superior Court affirmed the trial court’s order denying preliminary objections seeking to enforce an arbitration agreement against an injured party whose spouse had signed an arbitration agreement in his name.  To be bound to arbitrate, the Superior Court ruled, the non-signatory must have had an agency relationship with the signatory based upon (1) express authority, (2) implied authority, (3) apparent authority, and/or (4) authority by estoppel.  Finding no proof of agency under any of these bases, the Superior Court held that the non-signing spouse had no duty to arbitrate. In Scottsdale Ins. Co. v. Kinsale Ins. Co., the United States District Court for the Eastern District of Pennsylvania compelled an insurance company to arbitrate under an arbitration clause in another insurer’s policy.  The Court observed that a non-signatory cannot be bound to arbitrate unless it is bound under traditional principles of contract and agency law to be akin to a signatory of the underlying agreement, and that equitable estoppel in this context arises when a non-signatory to an arbitration clause knowingly exploits the agreement containing the arbitration clause despite having never signed the agreement.  These two cases underscore the complex factual and legal issues to be analyzed in deciding whether and when a non-signatory must arbitrate.

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