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The right attorney can properly assist you through any legal difficulty or transaction you encounter. Having well-respected counsel will properly guide you or your business through the litigation process, and can make the difference between attaining the information you need for effective resolutions, protecting your estate, or facing unexpected and undesirable outcomes and unwanted litigation. Located in Skippack, Pennsylvania, The Fleischmann Law Firm provides reliable representation you can depend on for your, business needs in Montgomery County and the surrounding areas.
With over three decades of experience, The Fleischmann Law Firm offers an objective and fair assessment, weighing all circumstances and options for solid recommendations to move forward. The Firm focuses on working in conjunction with clients to minimize any risk or liability while providing superior representation.
Always operating on high standards of integrity, cost-effectiveness and value, Firm clients are educated on the entire process from beginning to end, having the transparency a good attorney-client relationship demands. Attorney Craig J. Fleischmann and staff work diligently to achieve the results you need through personalized service for an in-depth approach to meeting goals and strategy.
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In a case of first impression, the Pennsylvania Commonwealth Court recently held that a consumer is not obligated to give a contractor written notice – or notice by any particular medium or means – when cancelling a home improvement contract within the three (3) day recission period. Case Background The ruling in Commonwealth, Office of Attorney General v. Gillece Services, LP , No. 861 C.D. 2023 (July 3, 2024) stemmed from a three-judge panel court that reviews civil actions the Commonwealth initiates through state government officers acting in their official capacity, that others bring against the Commonwealth, and appeals from state agency decisions. It affirmed Gillece’s appeal of the lower court’s decision. The Pennsylvania Attorney General’s Office initiated the original case under the state’s Unfair Trade Practices and Consumer Protection Law (UTPCPL), a law designed to restrict deceptive business procedures. The Attorney General alleged that the contractors sued would only cancel home improvement contracts unless the consumer hand-delivered a written request to the contractor’s employee or corporate offices. The Attorney General additionally alleged that the contractors further penalized customers by: entering their properties without permission and commencing work. failing to disclose that contractors would not honor verbal cancellation requests. failing to refund all payments within ten (10) business days of receiving the consumer’s cancellation request. misrepresenting to the consumer that, because they had not signed an emergency work authorization, their deposit was nonrefundable. The complaint asserted that these actions violated either the UTPCPL or the Pennsylvania Home Improvement Consumer Protection Act (HICPA). UTPCPL, 73 P.S § 201-1, et seq. , bars unjust, fraudulent and otherwise deceptive business practices in sales and service contracts. HICPA, 73 P.S. § 517.7, et seq. , protects homeowners from fraudulent and deceptive home improvement contractor practices. HICPA works like an extension of the UTPCPL. Violations under HICPA are considered violations of the UTPCPL . Case Analysis The court addressed whether HICPA requires home improvement contractors to honor a customer’s non-written cancellation request. More specifically, the court questioned whether the UTPCPL’s written notice requirements applied to HICPA. In doing so, the court scrutinized two specific UTPCPL and HICPA provisions: UTPCPL, 73 P.S. § 201-7, which states that when a contractor sells or enters into an agreement for services or goods that cost twenty-five dollars ($25) or more, the consumer may cancel the contract or sale by notifying the seller, in writing, within three (3) full business days following the day on which they entered into the contract. HICPA 73 P.S. § 517-7(b), which permits an individual who signed a home improvement contract, to cancel the contract without penalty, no matter where they signed the contract, within three (3) business days. The court stressed that HICPA left out specific written notice requirements (unlike the UTPCPL which contains such directives). Strictly observing this omission, the court found that written notice is not required to cancel a home improvement contract. It did so despite HICPA’s specific reference to UTPCL provisions. Ultimately, for home improvement contractors, the decision indicates that they may no longer require written notices to rescind contracts and they can no longer rely upon the UTPCPL’s statutory language to ensure that their contracts are HICPA compliant. The Fleischmann Law Firm will monitor this matter and keep you updated on any changes or developments. The Fleischmann Law Firm, P.C. : The Fleischmann Law Firm specializes in business law and can guide your corporation through emerging contract laws and other rule and notice updates and changes. Its attorneys partner with you to minimize risk and liability, offer objective and fair assessments, and weigh all circumstances and options. They offer solid recommendations and provide superior representation. Attorney Craig J. Fleischmann and staff offer over thirty years of experience, integrity, cost-effectiveness, value, and integrity. Contact the Fleischmann Law Firm today.
Background The Fleischmann Law Firm continues to closely follow ongoing developments regarding the Federal Trade Commission’s (FTC) efforts to nationally ban employee non-compete agreements. We thus far published two blogs on this matter. The first detailed the FTC’s ban or Noncompete Rule . The second reviewed legal challenges questioning the FTC’s Constitutional authority and advised that in July 2024, a Texas federal court in Ryan LLC et al. v. Federal Trade Commission issued a temporary order prohibiting the FTC from enforcing the Noncompete Rule and plans to issue a final rule. Recent Texas Case Developments On August 20, 2024, Ryan ultimately concluded that the Noncompete Rule exceeded the FTC’s authority. Judge Ada Brown, who issued the decision, maintained that the FTC’s enabling statue (Federal Trade Commission Act) did not intend it to issue substantive rules to thwart unfair competition methods. Rather, it intended it to focus on unfair or deceptive acts or practices. Because the Noncompete Rule focused on unfair competition methods, the FTC lacked the authority to issue the Noncompete Rule. Judge Brown also maintained that because the Noncompete Rule was random, inconsistent, and unreasonably extensive, it violated the Administrative Procedure Act Judge Brown’s decision permanently blocks the Noncompete Rule. Nationwide noncompete bans will not take effect on September 4, 2024, and employers no longer need to issue notifications to workers bound to noncompete agreements. The FTC is presently considering appealing this decision to Fifth Circuit Court of Appeals, so this matter may not yet be over. Related Federal Case Developments In the Pennsylvania federal matter, ATS Tree Services v. FTC , the court denied ATS’ preliminary motion for an injunction against the Noncompete Rule. The court held that ATS could not establish irreparable harm or the probability of success on the evidence, meaning the court would find the Noncompete Rule enforceable. If ATS ultimately enforces the Noncompete Rule, it would conflict with Ryan . Potential ATS challenges would proceed to the Third Circuit Court of Appeals, where potential conflicts in those courts would lead to requests for U.S Supreme Court review. Should that occur, and should the Supreme Court decide to review the matter, it would likely address recent developments regarding the Administrative Procedures Act. Administrative Procedure Act During the 1930s, President Franklin Roosevelt created a series of agencies to implement his New Deal programs. In 1946, Congress enacted the Administrative Procedure Act (APA) to regulate administrative agencies’ decision-makings, avert abuse, make agency actions more publicly acceptable, and to offer an essential outline for federal agencies’ procedures. President Harry Truman signed the APA into law. Administrative agencies implement, enforce, and oversee rules and regulations. There are two core kinds of administrative agencies: 1) independent agencies and 2) executive agencies. The president exercises more control over executive agencies. The Departments of Commerce and Defense are executive agencies examples. The FTC is an independent agency. Recent Supreme Court Holdings Regarding The APA In 2024, the Supreme Court, in Loper Bright Enters. v. Raimondo , 144 S. Ct. 2244 (2024) overruled Chevron USA v. National Resources Defense Council (1984), which for several decades, many knew as the Chevron Doctrine (which stated that if federal legislation is ambiguous or creates an administrative gap, the courts must submit to the regulatory agency's reasonable explanation). Loper Bright overruled Chevron and held that, under the APA, courts must decide whether an agency acted within its statutory authority and may not accommodate an agency’s ambiguous legal interpretation. Loper Bright indicates that the Supreme Court might say that the FTC did not offer a sufficient legal basis for the Noncompete Rule. State Bans on Noncompete Agreements Some states have their own limits on employee Noncompete Agreements. Many enacted rules addressing noncompete agreements for specific workers and/or industries. This firm published a recent blog on Pennsylvania’s ban on healthcare noncompete agreements . The Texas federal court ruling does not affect the Pennsylvania healthcare ban or any other state ruling. The Fleischmann Law Firm will continue to keep you updated on these matters. The Fleischmann Law Firm, P.C. The Fleischmann Law Firm specializes in business law and can guide your corporation through these and other rule and notice updates and changes. Its attorneys partner with you to minimize risk and liability, offer objective and fair assessments, and weigh all circumstances and options. They offer solid recommendations and provide superior representation. Attorney Craig J. Fleischmann and staff offer over thirty years of experience, integrity, cost-effectiveness, value, and integrity. Contact the Fleischmann Law Firm today.
This firm recently published two blogs regarding the Federal Trade Commission’s (FTC) nationwide ban on non-compete agreements (Noncompete Rule). The first examined the Noncompete Rule . The second covered a federal court’s temporary order that prohibited the FTC from enforcing the Noncompete Rule . The court will soon issue a final order and other federal cases are pending. This firm will provide continued updates on this issue. Some state lawmakers, Pennsylvania included, anticipated that the federal courts will block the FTC’s ruling and moved forward with passing legislation to ban certain healthcare provider noncompete agreements. Background and Significant Details In August 2023, Pennsylvania State Representative Dan Frankel (D-Allegheny) introduced House Bill 1633 to ban select healthcare noncompete covenants. Twenty-three other house representatives supported the bill. After the house and senate (General Assembly) reviewed and updated the bill, in July 2024, Governor Josh Shapiro signed it into law as The Fair Contracting for Health Care Practitioners Act (Act 74) . The General Assembly determined that: Noncompete covenants caused Health Care Practitioners to fear termination and their ability to find employment in their line of work. Combined hospital systems are gradually stretching over extensive regions and noncompete covenants could potentially prohibit Health Care Practitioners from practicing outside their original employment setting. Noncompete covenants impede the competition that enhance patient services and improve employee dynamics, which ultimately discourage Health Care Practitioners from wanting to practice in Pennsylvania. The General Assembly also observed that geography, transportation, and practitioner availability frequently governed patient’s access to patient’s access to health care and that rural residents often travel several hours for basic medical care. Seamless care is a fundamental public policy and Pennsylvania cannot risk losing Health Care Practitioners to other states. Definitions and Conditions Under The Fair Contracting for Health Care Practitioners Act (Act 74) The Fair Contracting for Health Care Practitioners Act (Act) describes Health Care Practitioners as licensed: Medical Doctors Osteopathic Physicians Registered Nurse Practitioners Nurse Anesthetists Physician Assistants The Act applies only to these abovementioned Health Care Practitioners. The Act defines a noncompete covenant as an agreement between a Health Care Practitioner and employer that hinders the Health Care Practitioner’s capacity to: Continue treating patients. Independently accept new patients. Accept new patients with a competing employer. The Act considers any covenant or amended noncompete covenant a Health Care Practitioner and employer agree upon after the effective date of January 1, 2025 as contrary to public policy and, thus, void. The employer, therefore, cannot enforce any such agreement. The Act, however, allows an employer to enforce a non-compete covenant that lasts less than one year, as long as the employer did not terminate the Health Care Practitioner. Patient Notification Requirements Within ninety (90) days after a Health Care Practitioner willingly exits employment, the Act requires the employer to notify the patients that the Health Care Practitioner saw within the past year and the patients with whom the departing Health Care Practitioner had an ongoing outpatient relationship for two or more years. The notification must: Inform about the Health Care Practitioner's departure. Advise that the patient has a right to select a new Health Care Practitioner amongst the employer’s existing Health Care Practitioners. Instruct how the patient can transfer their health records should they wish to continue care with another practice or the departing Health Care Practitioner. The notice does not have to offer any specifics about the departing Health Care Practitioner’s future services. Recovery of Health Care Practitioner Expenses The Act allows employers to recover reasonable relocation, training, and patient-based establishment expenses from a freely departing Health Care Practitioner, provided: The employer can directly attribute said expenses to the freely departing Healthcare practitioner. Said expenses accrued within three years prior to the Health Care Practitioner’s departure. The Health Care Practitioner repays said expenses over a five-year period from the departure date. Act Exclusions The Act, thus far, does not appear to impact noncompete agreements: Approved prior to the effective date of January 1, 2025. Concerning the transfer or sale of a business entity in which a Health Care Practitioner holds ownership interest. However, there are some ambiguities in the language of the Act that may require court interpretation or further legislative clarification. This firm will provide continued updates on this issue. The Fleischmann Law Firm, PC The Fleischmann Law Firm specializes in business law and can guide your corporation through these and other rule and notice updates and changes. Its attorneys partner with you to minimize risk and liability, offer objective and fair assessments, and weigh all circumstances and options. They offer solid recommendations and provide superior representation. Attorney Craig J. Fleischmann and staff offer over thirty years of experience, integrity, cost-effectiveness, value, and integrity. Contact the Fleischmann Law Firm today.
