Yesterday, in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the U.S. Supreme Court, for the first time, adopted and sanctioned the "ministerial exception" rule that has been utilized by the Federal Courts of Appeals for 40 years, which provides that the Free Exercise and Establishment Clauses of the First Amendment prohibit ministers, priests, and other religious individuals from suing their ecclesiastical employers for employment discrimination. In short, the Court held that the First Amendment's prohibition on the government's establishment of religion and its guarantee of free exercise and worship prohibit such lawsuits because religious organizations are free to choose which ministers they want to lead and guide their congregation, without interference or the threat of forced-reinstatement or monetary damages imposed by the courts or the government.
This case centered around Cheryl Perich, who was a "called" teacher of students from kindergarten to eighth-grade for the Hosanna-Tabor Church. The Church has two categories of teachers that it employs: "called" teachers and "lay" teachers. "Called" teachers are required by the Church to complete certain academic requirements, including an eight-class course of theological study at a Lutheran college or university, an endorsement of the teacher's local Church district, and the successful passage of an oral examination by Church faculty. Once these requirements are met, the teacher may be "called" by the congregation, upon which the teacher formally receives from the Church the title of "Minister of Religion, Commissioned." "Lay" teachers, on the other hand, are not required to be Lutheran or to be trained by the Church. The Church only appoints "lay" teachers when no "called" teachers are available.
Perich, as a "called" teacher, had completed all of the above requirements, and taught both religious and secular curriculum to her students at the Church. Her duties also involved activities such as leading students in prayer exercises daily, attending weekly school-wide chapel services and even leading those chapel services approximately twice each year.
In June of 2004, Perich was diagnosed with narcolepsy, and began the 2004-2005 school year on disability leave. On January 25, 2005, Perich notified the school principal that she was ready to return to work. The principal, however, informed Perich that the school had already contracted with a "lay" teacher to fill Perich's position, expressing concern that Perich would not be able to return to the classroom. On January 30, the Church held a congregation at which the school's administrators concluded that Perich was physically unable to return to her job either that school year or the next, and requested that Perich resign from her position as a "called" teacher.
Perich refused to resign and produced a note from her doctor indicating that she would be physically able to return to work on February 22, 2005. On that date, Perich arrived at the school and the principal asked her to leave. Later that day, the principal telephoned Perich and told her that she was likely going to be fired. Perich responded that she had contacted an attorney and intended to pursue her legal rights.
On April 10, 2005, a congregation of the Church was convened, and voted to rescind Perich's call in light of the "regrettable" actions that had occurred in February. The next day, the school board terminated Perich's employment on the grounds of "insubordination and disruptive behavior," and because of the damage she had done to her "working relationship" with the school by "threatening to take legal action."
Perich then filed a Charge of Discrimination with the EEOC, alleging that she had been terminated from her employment in violation of the Americans with Disabilities Act (ADA). Perich claimed that the Church had unlawfully retaliated against her for threatening to file a lawsuit under the ADA in February of 2005.
In a unanimous 9-0 decision, the Supreme Court held that Perich's suit, which originally sought reinstatement to her position as a "called" teacher, or alternative damages for back-pay, front-pay and punitive damages, was barred by the First Amendment's ministerial exception. Chief Justice John Roberts, in writing for the Court, engaged in detailed examination of the history and origination of the First Amendment's Free Exercise and Establishment Clauses, and found that they had been adopted against the backdrop of the British Crown's historical interference and control over the appointment of ecclesiastical ministers.
The Court also noted that its own past decisions have reinforced the rule that governmental actions that have the effect of contradicting or interceding in a religious organization's decision as to who shall serve as a minister and under what conditions or circumstances, are unconstitutional under the First Amendment. The same holds true, the Court concluded, with employment discrimination actions brought by ministers against their former religious employers. The Court held that: "[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments."
Finding that Perich was clearly a minister under the facts and circumstances surrounding her acceptance as a "called" teacher, and the fact that both Perich and the Church had held her out to the public as a minister during the years of her employment, the Supreme Court dismissed Perich's claim for retaliation under the ADA as unconstitutional.
You can read the Supreme Court's full opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC here: http://www.supremecourt.gov/opinions/11pdf/10-553.pdf
Showing posts with label Termination. Show all posts
Showing posts with label Termination. Show all posts
Thursday, January 12, 2012
Wednesday, March 2, 2011
US Supreme Court Adopts "Cat's-Paw" Theory In Military Discrimination Case
In Staub v. Proctor Hospital, decided on March 1, 2011, the U.S. Supreme Court held, in the context of a case involving an employer's alleged violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." The significance of this opinion is two-fold: First, the Court through this opinion has explicitly sanctioned the applicability of "cat's-paw" theories of liability in an employment discrimination context. Second, there is nothing in the language of this decision that would suggest that the Court's analysis in this case is strictly confined to cases arising under USERRA. To the contrary, the Court itself acknowledges in the majority opinion that the operative statutory language of the USERRA, which prohibits an employer from denying employment or the benefits of employment to any person on the basis of that individual's membership in or obligation to a branch of the military, is "very similar to Title VII." As such, employees can now rely on this decision to advance "cat's-paw" theories of liability against employers in the traditional discrimination cases arising under Title VII.
In this case, Vincent Staub worked as a medical technician for Proctor Hospital under 2004 when he was terminated for allegedly violating a "Corrective Action" disciplinary warning that had been placed in his employment file by his supervisors, Janice Mulally and Michael Korenchuk.
While employed at Proctor, Staub was a member of the U.S. Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks per year. At Staub's subsequent employment discrimination trial, the jury determined that both Mulally and Korenchuk were hostile to Staub's military obligations. Specifically, Mulally had scheduled Staub for additional shifts without notice so that he would "pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserves," and Mulally had also informed one of Staub's co-workers that Staubs's "military duty had been a strain on the department," and asked that co-worker to help her "get rid of" Staub. Korenchuk referred to Staub's obligations to the Reserves as "a bunch of smoking and joking and a waste of taxpayers' money," and was aware that Mulally was "out to get" Staub.
In January of 2004, Mulally issued Staub a "Corrective Action" disciplinary warning for purportedly violating a company rule that required him to stay in his work area whenever he was not seeing a patient. This warning required Staub to report to either Mulally or Korenchuk when he had no patients or when his patient testing was completed. Staub contended at trial that the company rule allegedly invoked by Mulally did not exist, and that even if it did, he did not violate it.
On April 2, 2004, one of Staub's co-workers complained to Proctor's vice-president of human resources, Linda Buck, and to Proctor's chief operating officer, Garrett McGowan, about Staub's unavailability and abruptness. McGowan directed Korenchuk and Buck to create a plan that would "solve Staub's availability problems." Before such a plan could be put in place, however, Korenchuk informed Buck that Staub had left his desk without informing a supervisor, in violation of his January Corrective Action notice. Relying upon this accusation (which Staub contended was entirely false), Buck reviewed Staub's personnel file and terminated him. Staub's termination notice stated that Staub had been terminated for violating the directive contained in Mulally's January Corrective Action notice.
Staub challenged his termination through Proctor's internal grievance procedures. Staub contended that his termination was improper because Mulally had fabricated the allegation underpinning the January Corrective Action notice due to her hostility towards his military obligations. Buck did not follow up with Mulally with respect to Staub's allegation, and did not reverse Staub's termination.
Staub then sued Proctor claiming a violation of the USERRA, alleging that his termination was illegal as it was motivated by hostility towards his U.S. Army Reserve obligations. Specifically, Staub argued that although Buck herself (who had actually terminated Staub), held no such hostility, Mulally and Korenchuk clearly did, and that "their actions influenced Buck's ultimate employment decision." Staub's claim proceeded to a jury trial, where the jury found in his favor and awarded him $57,640.00 in damages.
On appeal, the Seventh Circuit Court of Appeals reversed, holding that a "cat's-paw" theory of liability, such as the one that Staub had advanced in this case, could not be maintained unless the non-decisionmaker had exercised "singular influence," over the actual decisionmaker so that the decision to terminate was the "product of blind reliance." The Seventh Circuit held that since the evidence in this case showed that Buck was not "wholly dependent" upon either Mulally's or Korenchuk's advice, Staub had no cause of action under USERRA.
In a unanimous decision with two Justices concurring in the judgment, the Supreme Court reversed. The Court noted recognized that when creating a tort action under federal law, Congress "adopts the background of general tort law," including the concept of "proximate cause." In claims for intentional torts, for example, the Court noted that in order to be found liable, an individual must intend not only "the act itself," but "the consequences of the act." Therefore, adopting these tenets and applying them to the operative language of the USERRA statute, the Court held that: "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." As such, in order to prevail in such actions, a plaintiff cannot hold an employer liable simply by showing that the ultimate decisionmaker relied upon information that was (unbeknownst to the decisionmaker) prompted by discrimination. Rather, the plaintiff must prove that the originator of that discriminatory information created the information with the intent that such information would cause the plaintiff to suffer an adverse employment action.
The Court rejected Proctor's suggestion that the Court adopt a rule that a decisionmaker's independent investigation and rejection of an employee's allegations of discriminatory animus can insulate an employer from liability, as such an action would negate the effects of any prior discrimination. The Court held that "we are aware of no principle in tort or agency law under which an employer's mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of 'fault.' The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision." The Court also rejected Justice Alito's suggestion that an employer should be held liable only when it "should be regarded as having delegated part of the decisionmaking power to the biased supervisor."
While it reversed the decision of the Seventh Circuit, the Court explicitly left two questions unanswered: First, the Court expressed no opinion as to whether an employer could be held liable under such a "cat's-paw" theory of liability if a co-worker, rather than a supervisor, committed a discriminatory action that influenced a subsequent adverse employment action. Second, the Court acknowledged that in this case, Staub took advantage of Proctor's internal grievance procedures after having been terminated, but refused to comment on whether Proctor would enjoy an affirmative defense to liability had Staub not done so. Therefore, one is likely to see these issues being litigated in the lower courts in the future.
You can read the Supreme Court's full opinion in Staub v. Proctor here: http://www.supremecourt.gov/opinions/10pdf/09-400.pdf
In this case, Vincent Staub worked as a medical technician for Proctor Hospital under 2004 when he was terminated for allegedly violating a "Corrective Action" disciplinary warning that had been placed in his employment file by his supervisors, Janice Mulally and Michael Korenchuk.
While employed at Proctor, Staub was a member of the U.S. Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks per year. At Staub's subsequent employment discrimination trial, the jury determined that both Mulally and Korenchuk were hostile to Staub's military obligations. Specifically, Mulally had scheduled Staub for additional shifts without notice so that he would "pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserves," and Mulally had also informed one of Staub's co-workers that Staubs's "military duty had been a strain on the department," and asked that co-worker to help her "get rid of" Staub. Korenchuk referred to Staub's obligations to the Reserves as "a bunch of smoking and joking and a waste of taxpayers' money," and was aware that Mulally was "out to get" Staub.
In January of 2004, Mulally issued Staub a "Corrective Action" disciplinary warning for purportedly violating a company rule that required him to stay in his work area whenever he was not seeing a patient. This warning required Staub to report to either Mulally or Korenchuk when he had no patients or when his patient testing was completed. Staub contended at trial that the company rule allegedly invoked by Mulally did not exist, and that even if it did, he did not violate it.
On April 2, 2004, one of Staub's co-workers complained to Proctor's vice-president of human resources, Linda Buck, and to Proctor's chief operating officer, Garrett McGowan, about Staub's unavailability and abruptness. McGowan directed Korenchuk and Buck to create a plan that would "solve Staub's availability problems." Before such a plan could be put in place, however, Korenchuk informed Buck that Staub had left his desk without informing a supervisor, in violation of his January Corrective Action notice. Relying upon this accusation (which Staub contended was entirely false), Buck reviewed Staub's personnel file and terminated him. Staub's termination notice stated that Staub had been terminated for violating the directive contained in Mulally's January Corrective Action notice.
Staub challenged his termination through Proctor's internal grievance procedures. Staub contended that his termination was improper because Mulally had fabricated the allegation underpinning the January Corrective Action notice due to her hostility towards his military obligations. Buck did not follow up with Mulally with respect to Staub's allegation, and did not reverse Staub's termination.
Staub then sued Proctor claiming a violation of the USERRA, alleging that his termination was illegal as it was motivated by hostility towards his U.S. Army Reserve obligations. Specifically, Staub argued that although Buck herself (who had actually terminated Staub), held no such hostility, Mulally and Korenchuk clearly did, and that "their actions influenced Buck's ultimate employment decision." Staub's claim proceeded to a jury trial, where the jury found in his favor and awarded him $57,640.00 in damages.
On appeal, the Seventh Circuit Court of Appeals reversed, holding that a "cat's-paw" theory of liability, such as the one that Staub had advanced in this case, could not be maintained unless the non-decisionmaker had exercised "singular influence," over the actual decisionmaker so that the decision to terminate was the "product of blind reliance." The Seventh Circuit held that since the evidence in this case showed that Buck was not "wholly dependent" upon either Mulally's or Korenchuk's advice, Staub had no cause of action under USERRA.
In a unanimous decision with two Justices concurring in the judgment, the Supreme Court reversed. The Court noted recognized that when creating a tort action under federal law, Congress "adopts the background of general tort law," including the concept of "proximate cause." In claims for intentional torts, for example, the Court noted that in order to be found liable, an individual must intend not only "the act itself," but "the consequences of the act." Therefore, adopting these tenets and applying them to the operative language of the USERRA statute, the Court held that: "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." As such, in order to prevail in such actions, a plaintiff cannot hold an employer liable simply by showing that the ultimate decisionmaker relied upon information that was (unbeknownst to the decisionmaker) prompted by discrimination. Rather, the plaintiff must prove that the originator of that discriminatory information created the information with the intent that such information would cause the plaintiff to suffer an adverse employment action.
The Court rejected Proctor's suggestion that the Court adopt a rule that a decisionmaker's independent investigation and rejection of an employee's allegations of discriminatory animus can insulate an employer from liability, as such an action would negate the effects of any prior discrimination. The Court held that "we are aware of no principle in tort or agency law under which an employer's mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of 'fault.' The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision." The Court also rejected Justice Alito's suggestion that an employer should be held liable only when it "should be regarded as having delegated part of the decisionmaking power to the biased supervisor."
While it reversed the decision of the Seventh Circuit, the Court explicitly left two questions unanswered: First, the Court expressed no opinion as to whether an employer could be held liable under such a "cat's-paw" theory of liability if a co-worker, rather than a supervisor, committed a discriminatory action that influenced a subsequent adverse employment action. Second, the Court acknowledged that in this case, Staub took advantage of Proctor's internal grievance procedures after having been terminated, but refused to comment on whether Proctor would enjoy an affirmative defense to liability had Staub not done so. Therefore, one is likely to see these issues being litigated in the lower courts in the future.
You can read the Supreme Court's full opinion in Staub v. Proctor here: http://www.supremecourt.gov/opinions/10pdf/09-400.pdf
Tuesday, January 25, 2011
Superior Court Decision Reveals Legal Discord Over Claims of Intentional Inference With Contractual Relations By At-Will Employees
In the non-precedential decision of Haun v. Community Health Systems, Inc., et al., No.: 2350 EDA 2009 (PA Super. 12/20/2010), the Pennsylvania Superior Court affirmed a ruling by the trial court, which dismissed an at-will employee's claims for intentional interference with contractual relations. The dissenting opinion, however, shows that this area of Pennsylvania law is still arguably unsettled.
By way of backgroun, Richard Haun served as the Chief Financial Officer at Phoenixville Hospital from June, 2007 until November 12, 2008. Haun was an at-will employee in his position as CFO.
On August 23, 2007, Haun's wife gave birth to premature twins at Phoenixville Hospital. The twins were taken to the Neonatal Intensive Care Unit at Phoenixville Hospital, and while in the Unit, one of the twins became disconnected from an IV line. This caused extensive blood loss to the baby, which in turn, resulted in severe and irreversible injury to the baby's central nervous system.
Shortly thereafter, Haun and his wife filed a medical malpractice suit against Phoenixville Hospital, its corporate parents and a number of the doctors and nurses of Phoenixville Hospital.
Five days after being served with the suit, the Interim President for the corporate hospital defendants sent an email to the CEO of Phoenixville Hospital, instructing the CEO to have a discussion with the Chief Counsel for the corporate hospital defendants about the possibility of terminating Haun's employment. On November 12, 2008, the CEO of Phoenixville Hospital and the Phoenixville Hospital Human Resources Director met with Haun and informed him that he was being fired from the hospital because he was "an adversary of the company and it's too much risk." Haun was then immediately escorted from the building and was denied the opportunity to collect his personal effects.
After being fired from Phoenixville Hospital, Haun filed a second suit against the Hospital and its corporate parents, alleging, among other claims, wrongful termination in violation of public policy and intentional inference with contractual relations. The corporate defendants filed objections seeking dismissal of his intentional interference claim, arguing that Pennsylvania law does not recognize such a cause of action for a current at-will employee. (The defendants also filed an objection seeking to dismiss Haun's wrongful termination claim, which was denied by the trial court and affirmed on appeal. For a full discussion of this claim, see my previous post).
The trial court dismissed Haun's claim, and on appeal, this decision was affirmed by the Superior Court.
Specifically, the Superior Court looked to its previous panel decision in Hennessy v. Santiago, 708 A.2d 1269 (Pa. Super. 1998), which held that an at-will employee may not sue a third-party for intentional interference with an existing at-will employment contract. Rather, the Hennessy Court held that a cause of action for intentional interfence exists only with respect to prospective at-will employment relationships, not with presently existing at-will employment relationships. Therefore, relying upon the Hennessy decision, the Superior Court in this case upheld the dismissal of Haun's claim, noting that he was clearly a current at-will employee at the time of his termination.
The dissenting opinion, however, raises a compelling argument that the Hennessy decision was wrongly decided, as being in conflict with previous Superior Court decision. First, the dissent noted that in the prior case of Curran v. Children's Service Center, 578 A.2d 8 (Pa. Super. 1990), another panel of the Superior Court unequivocally held that "a cause of action for intentional interference with a contractual relationship may be sustained even though the employment relationship is at-will." And, having been decided before Hennessy, the dissent reasoned that Curran was the correct statement of the law and should be followed.
Additionally, the dissent notes that the decision in Curran relied upon Comment g of Section 766 of the Restatement (Second) of Torts, which explicitly addresses contracts that are terminable at-will. Moreover, the Pennsylvania Supreme Court expressly adopted Section 766 in Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466 (Pa. 1979). Comment g states that an at-will employee has an interest in future relations between the employee and the employer, but has no legal assurance of them. For that reason, an interference in that interest would be closely analogous to interference with prospective contractual relations - a cause of action that has already been recognized and sanctioned for at-will employment in Pennsylvania. The dissent noted that the Hennessy Court failed to address either Section 766, Comment g, or the Curran decision, and as such, its reasoning should be viewed circumspectly.
The Pennsylvania Supreme Court has not yet rendered a decision addressing whether an at-will employee may maintain a claim for intentional interference with contractual relations against a third-party. But, the dissent in Haun sets forth a compelling argument that emphasizes the apparent lack of decisional consistency and clarity from the Superior Court on this issue. In such cases, it is usually only a matter of time before the Supreme Court recognizes the need to step in and settle the law. Hopefully, we will see a decision by the Supreme Court on this issue sooner rather than later.
By way of backgroun, Richard Haun served as the Chief Financial Officer at Phoenixville Hospital from June, 2007 until November 12, 2008. Haun was an at-will employee in his position as CFO.
On August 23, 2007, Haun's wife gave birth to premature twins at Phoenixville Hospital. The twins were taken to the Neonatal Intensive Care Unit at Phoenixville Hospital, and while in the Unit, one of the twins became disconnected from an IV line. This caused extensive blood loss to the baby, which in turn, resulted in severe and irreversible injury to the baby's central nervous system.
Shortly thereafter, Haun and his wife filed a medical malpractice suit against Phoenixville Hospital, its corporate parents and a number of the doctors and nurses of Phoenixville Hospital.
Five days after being served with the suit, the Interim President for the corporate hospital defendants sent an email to the CEO of Phoenixville Hospital, instructing the CEO to have a discussion with the Chief Counsel for the corporate hospital defendants about the possibility of terminating Haun's employment. On November 12, 2008, the CEO of Phoenixville Hospital and the Phoenixville Hospital Human Resources Director met with Haun and informed him that he was being fired from the hospital because he was "an adversary of the company and it's too much risk." Haun was then immediately escorted from the building and was denied the opportunity to collect his personal effects.
After being fired from Phoenixville Hospital, Haun filed a second suit against the Hospital and its corporate parents, alleging, among other claims, wrongful termination in violation of public policy and intentional inference with contractual relations. The corporate defendants filed objections seeking dismissal of his intentional interference claim, arguing that Pennsylvania law does not recognize such a cause of action for a current at-will employee. (The defendants also filed an objection seeking to dismiss Haun's wrongful termination claim, which was denied by the trial court and affirmed on appeal. For a full discussion of this claim, see my previous post).
The trial court dismissed Haun's claim, and on appeal, this decision was affirmed by the Superior Court.
Specifically, the Superior Court looked to its previous panel decision in Hennessy v. Santiago, 708 A.2d 1269 (Pa. Super. 1998), which held that an at-will employee may not sue a third-party for intentional interference with an existing at-will employment contract. Rather, the Hennessy Court held that a cause of action for intentional interfence exists only with respect to prospective at-will employment relationships, not with presently existing at-will employment relationships. Therefore, relying upon the Hennessy decision, the Superior Court in this case upheld the dismissal of Haun's claim, noting that he was clearly a current at-will employee at the time of his termination.
The dissenting opinion, however, raises a compelling argument that the Hennessy decision was wrongly decided, as being in conflict with previous Superior Court decision. First, the dissent noted that in the prior case of Curran v. Children's Service Center, 578 A.2d 8 (Pa. Super. 1990), another panel of the Superior Court unequivocally held that "a cause of action for intentional interference with a contractual relationship may be sustained even though the employment relationship is at-will." And, having been decided before Hennessy, the dissent reasoned that Curran was the correct statement of the law and should be followed.
Additionally, the dissent notes that the decision in Curran relied upon Comment g of Section 766 of the Restatement (Second) of Torts, which explicitly addresses contracts that are terminable at-will. Moreover, the Pennsylvania Supreme Court expressly adopted Section 766 in Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466 (Pa. 1979). Comment g states that an at-will employee has an interest in future relations between the employee and the employer, but has no legal assurance of them. For that reason, an interference in that interest would be closely analogous to interference with prospective contractual relations - a cause of action that has already been recognized and sanctioned for at-will employment in Pennsylvania. The dissent noted that the Hennessy Court failed to address either Section 766, Comment g, or the Curran decision, and as such, its reasoning should be viewed circumspectly.
The Pennsylvania Supreme Court has not yet rendered a decision addressing whether an at-will employee may maintain a claim for intentional interference with contractual relations against a third-party. But, the dissent in Haun sets forth a compelling argument that emphasizes the apparent lack of decisional consistency and clarity from the Superior Court on this issue. In such cases, it is usually only a matter of time before the Supreme Court recognizes the need to step in and settle the law. Hopefully, we will see a decision by the Supreme Court on this issue sooner rather than later.
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