I.FIRM NEWS

We are pleased to welcome Monica M. Viggiano, Esquire, who recently joined our law firm. Monica was a former Law Clerk for The Honorable Stephen Skillman, President Judge, Appellate Division, State of New Jersey, and was a former Deputy Attorney General for the State of New Jersey. Monica is a graduate of Rutgers University School of Law (J.D., 2004: with honors), and a graduate of the College of New Jersey (summa cum laude, 2001).

II.EMPLOYMENT LITIGATION ISSUES

A Federal Employee is Precluded from Bringing Workplace Discrimination and Retaliation Claims Under New Jersey’s LAD and CEPA.

In McGuire v. Potter, 2006 WL 2883234, D.N.J. (October 6, 2006), a slip opinion, plaintiff brought suit against John E. Potter, Postmaster General, and the United States of America, and Postmaster Steven Romero. Plaintiff originally brought the action in the Superior Court of New Jersey alleging violations of the New Jersey Law Against Discrimination (“LAD”), the New Jersey Conscientious Employee Protection Act (“CEPA”), and an employment contract with the USPS. Plaintiff alleged that Defendants violated the LAD by discriminating against her based on her sexual orientation and alcohol dependency, and violated CEPA by retaliating against her after she reported the alleged discrimination to the EEOC. Additionally, Plaintiff asserted that Defendants violated her written employment contract by suspending her from work and refusing to allow her to return to her position.

The question before the Court was whether Plaintiff, in her capacity as an employee of the USPS, is precluded from bringing workplace discrimination claims under the LAD. The Court held that because Plaintiff was an employee of the USPS, Title VII precludes her from bringing claims for workplace discrimination based on her sexual orientation under the LAD. Similarly, the Court held that Plaintiff may not bring claims for workplace discrimination based on her alcoholism under the LAD stating that:

A USPS employee's exclusive remedy for a claim of unlawful workplace discrimination based on handicap is provided by the Rehabilitation Act, 29 U.S.C. §§ 791, 794a, which expressly adopts the remedies and procedures established in Title VII. Accordingly, McGuire's cause of action, if any, against Defendants for workplace discrimination based on her alcoholism is in the Rehabilitation Act and not in state law.

Further, the Court held that a reading of the plain language of CEPA’s definition of “employer” reveals that the New Jersey Legislature did not draft CEPA to extend to or cover any federal department, agency, or instrumentality, including the USPS, or individuals who act on behalf of the federal government in overseeing federal employees (collectively “federal employers”). “Given the New Jersey Legislature's clear and unambiguous indication that federal employers do not fall within the definition of “employer” under CEPA, McGuire cannot proceed with her retaliation claim against Defendants.” To the contrary, the Court held that any retaliation claim Plaintiff may have against Defendants rests within the province of Title VII.

Finally, Defendants argued that Plaintiff's claims brought under New Jersey common law principles for breach of contract are preempted by Title VII and the Rehabilitation Act, and must be dismissed. The Court agreed holding that “because McGuire's breach of contract claim stems from the same facts that form the foundation for her discrimination claims, it is preempted by federal law. Consequently, McGuire's breach of contract claim must be dismissed.”

III. PROFESSIONAL LIABILITY ISSUES

The Pa. Supreme Court holds no legitimate excuse for failure to file Certificate of Merit.

In Womer v. Hilliker, 2006 WL 2956380 (Pa. October 17, 2006), Appellant Hilliker filed this appeal concerning Pa.R.C.P. No. 1042.3, which requires that a Certificate of Merit (“COM”) be filed in any professional liability action in which it is alleged that a licensed professional deviated from the acceptable standard of care. The Pa. Supreme Court decided the issue of whether the Superior Court correctly reversed the trial court's order denying Appellee Garth Womer (“Womer”) relief from the judgment of non pros that was entered against him due to his failure to file a COM.

The relevant facts and procedural history are as follows: Womer commenced a civil action against Appellant Jan K. Hilliker, M.D (“Hilliker”), a practicing opthomologist whose services were engaged to perform corrective surgery on Womer's eyes, for negligence and lack of informed consent. Womer did not file a COM with his complaint nor did he file a COM within sixty days of its filing, as is required under Pa.R.C.P. No. 1042.3(a). In addition, Womer did not file a motion to extend the time for the filing of a COM, as is allowed under Pa.R.C.P. No. 1042.3(d).

On October 20, 2003, Hilliker filed a Praecipe for Entry of Judgment of Non Pros Pursuant to Pa.R.C.P. No. 1042.6 for failure to file a COM. On that same day, the Prothonotary entered a judgment of non pros in Hilliker's favor. On October 22, 2003, Womer filed a Motion to Open Judgment of Non Pros and Allow the Filing of a Certificate Nunc Pro Tunc (“Motion”). In the Motion, Womer sought relief from the judgment, alleging, among other things, that he served an expert report on Hilliker in discovery before Pa.R.C.P. No. 1042.3's time limit expired; that the information he provided to Hilliker included all of the information that Pa.R.C.P. No. 1042.3 requires; that the purpose of Pa.R.C.P. No. 1042.3 had been served; and that he possessed a meritorious case. One of the exhibits attached to the Motion included the curriculum vitae of an optometrist, Dr. Keith S. Hillard (“Hillard”), and a report that Hillard authored. Another exhibit attached to the Motion was a COM as to Hilliker dated October 21, 2003.

In response to the New Matter included in Hilliker's Answer to the Motion, Womer further alleged that if relief from a judgment of non pros secured under Pa.R.C.P. No. 1042.6 is governed by Pa.R.C.P. No. 3051, then Rule 3051(b)(2)'s requirement that he provide a reasonable explanation for his inactivity was satisfied inasmuch as he was under the belief that providing the report to Hilliker met the requirements of Pa.R.C.P. No. 1042.3. The trial court entered an order dated December 3, 2003, denying Womer's Motion requesting that the judgment of non pros be opened, and denied the Motion for Reconsideration he filed thereafter by order dated December 15, 2003. Womer filed a timely appeal.

The Superior Court determined that given the relatively recent adoption of Pa.R.C.P. No. 1042.3 and the resulting lack of decisional law, the trial court abused its discretion in rejecting as reasonable the excuse Womer gave under Pa.R.C.P. No. 3051 for not filing a COM-his belief that he did not need to do so since he substantially complied with Pa.R.C.P. No. 1042.3 by giving Hilliker the report.

On this appeal, Womer argued that the Superior Court should be upheld because his belief was honestly held and the equities demand it. Hilliker countered that it is the trial court that should be upheld because it did not abuse its discretion in its application of Pa.R.C.P. No. 3051. The Supreme Court concluded that Hilliker was correct, holding as follows:

The fact upon which the Superior Court relied to legitimize Womer's position- that Pa.R.C.P. No. 1042.3 was not adopted until January of 2003-is irrelevant. The principle that demonstrates the correctness of the trial court's determination, that is, that Pa.R.C.P. No. 126 reflects a doctrine of substantial compliance and does not excuse a party's non-compliance . . . was not new or novel when Womer filed his complaint in August of 2003 . . . .Accordingly, we have no hesitation in concluding that the trial court acted well within its discretion in finding that Womer did not provide a reasonable excuse under Pa.R.C.P. No. 3051 for not filing a COM. Indeed, in light of the foregoing, we conclude that it would be manifestly unreasonable and therefore, an abuse of discretion . . . for a trial court to conclude that a plaintiff in Womer's circumstances, making the same arguments, presents a reasonable explanation or legitimate excuse for his failure to file a COM. Therefore, we hold that the Superior Court erred in reversing the trial court's order denying Womer's Motion.