Articles, Alerts & Perspectives

Harrisburg, PA and Pittsburgh, PA

The Legal Intelligencer

(by Casey Alan Coyle and Ryan McCann)

Pleadings are the opening act of litigation—setting the stage, defining the cast, and signaling the story to come.  But Bernavage v. Green Ridge Healthcare Group, LLC, et al., No. 1576 MDA 2023 (Pa. Super. Ct.), which is pending on appeal before the en banc Superior Court, presents a plot twist: what happens when a plaintiff introduces an entirely new theory just as the curtain is about to fall and the house lights begin to rise?  Specifically, the appeal poses the question of whether a plaintiff is permitted to amend her complaint in the middle of trial to add allegations of the defendants’ recklessness and request an award of punitive damages.

Standard to Amend Pleadings

Rule 1033 of the Pennsylvania Rules of Civil Procedure governs amended complaints.  It states, in relevant part, that a party may amend a pleading—whether to “change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading”— “at any time” “either by filed consent of the adverse party or by leave of court.”  Pa.R.Civ.P. 1033(a).  On its face, Rule 1033 does not impose a time limit on when a pleading such as a complaint must be amended.  Indeed, the Superior Court has held that a complaint may be amended “at the discretion of the trial court after pleadings are closed, while a motion for judgment on the pleadings is pending, at trial, after judgment, or after an award has been made and an appeal take therefrom.”  Biglan v. Biglan, 479 A.2d 1021, 1025–1026 (Pa. …

Pittsburgh, PA

GO-WV

(by Steve Silverman and Katerina Vassil)

There has been much talk within the oil and gas industry about the potential for lithium extraction from produced water, a waste byproduct produced during hydraulic fracturing and drilling.  Is this only talk, or are we approaching another extraction revolution? The answer is that the revolution is knocking on the door, but there remain significant practical and legal hurdles to overcome. To become viable, lithium extraction must become both economically and environmentally sustainable.  Thus far, these technologies have not proven to be economically scalable, nor could their environmental impacts be justified.

The legal hurdles involving lithium extraction can be summed up in one question:  Who owns the lithium?  Is it the surface owner, the mineral owner (where the two differ), or the operator?  As seen below, the standard lawyer answer applies:  it depends.

Incentives for overcoming these hurdles could not be higher.  Whoever masters lithium extraction technology from produced water will be able to name their own price for licensing that technology.   Just as importantly, the oil and gas industry will be a major contributor to solving the obstacles currently facing the U.S. in sourcing lithium. Current U.S. dependence on foreign suppliers of lithium, especially China, raises significant geo-political concerns that can be cured by sourcing lithium domestically.  Current estimates are that 40% of the country’s lithium needs are contained within the Appalachian Basin alone.

Lithium in Context

A. Lithium as a Commodity

Produced water contains a variety of constituents – sediment, salts, hydrocarbons, minerals, and metals. Lithium is one of these constituents, and when extracted and processed, lithium has numerous uses and applications. …

Pittsburgh, PA

PIOGA Press

(by Steve Silverman and Katerina Vassil)

There has been much talk within the oil and gas industry about the potential for lithium extraction from produced water, a waste byproduct produced during hydraulic fracturing and drilling.  Is this only talk, or are we approaching another extraction revolution? The answer is that the revolution is knocking on the door, but there remain significant practical and legal hurdles to overcome. To become viable, lithium extraction must become both economically and environmentally sustainable.  Thus far, these technologies have not proven to be economically scalable, nor could their environmental impacts be justified.

The legal hurdles involving lithium extraction can be summed up in one question:  Who owns the lithium?  Is it the surface owner, the mineral owner (where the two differ), or the operator?  As seen below, the standard lawyer answer applies:  it depends.

Incentives for overcoming these hurdles could not be higher.  Whoever masters lithium extraction technology from produced water will be able to name their own price for licensing that technology.   Just as importantly, the oil and gas industry will be a major contributor to solving the obstacles currently facing the U.S. in sourcing lithium. Current U.S. dependence on foreign suppliers of lithium, especially China, raises significant geo-political concerns that can be cured by sourcing lithium domestically.  Current estimates are that 40% of the country’s lithium needs are contained within the Appalachian Basin alone.

Lithium in Context

A. Lithium as a Commodity

Produced water contains a variety of constituents – sediment, salts, hydrocarbons, minerals, and metals. Lithium is one of these constituents, and when extracted and processed, lithium has numerous uses and applications. …

Pittsburgh, PA

TEQ Hub

(by Steve Silverman)

Employers often cling to misconceptions about non-compete agreements that can prevent them from effectively using these powerful tools or render such agreements unenforceable. Here are the seven most common reasons why this happens.

1. Failing To Understand What Non-Competes Are
   In the common vernacular, a non-compete is an umbrella term for contractually prohibiting an employee (or independent contractor, buyer of a business, or even a vendor) from working for a competitor or otherwise restricting that employee’s subsequent employment. However, a non-compete is one of several tools available to impose restrictions on an employee leaving their employer called “restrictive covenants.”  A non-compete, which is just one type of restrictive covenant, limits a former employee or independent contractor from working for a competitor for a particular time period in a specific geographic area. A non-solicit agreement is another type of restrictive covenant, which allows an ex-employee to work for any employer they want without any geographic restriction but prohibits them from seeking business from their former employer’s customers for a period of time. Another variation of a non-solicit prohibits that ex-employee from hiring away or encouraging their former colleagues to leave their employment with their former employer. These are sometimes known as anti-piracy provisions. The distinctions between these various types of restrictive covenants are important. For instance, courts are generally more willing to enforce non-solicitation provisions than non-competes. Employers have to decide which, if not all, of these restrictive covenants work best for their business.
2. Assuming That Non-Competes Are Unenforceable
   A significant number of employers, as well as employees, incorrectly believe that restrictive covenants such as non-competes are categorically unenforceable. While this can be true for certain classes of employees (as discussed below), this misconception cannot be further from the truth.

…

Washington, DC

Environmental Alert

(by Sloane Wildman and Ethan Johnson)

On November 10, 2025, EPA announced a proposed revision to regulations issued under Toxic Substances Control Act (TSCA) Section 8(a)(7), which would reduce certain per and polyfluoroalkyl substance (PFAS) reporting requirements for manufacturers and importers. The regulation was promulgated in October 2023 under the prior Administration and requires manufacturers and importers of PFAS in any year between 2011–2022 to report data on exposure and detrimental effects to EPA. In proposing this revision, EPA noted its reliance on Executive Order 14219, entitled “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative,” which directs each agency to review and rescind existing rules based on consistency with the agency’s best reading of the governing statute, Administration policy, and cost-benefit balancing principles. EPA Administrator Lee Zeldin estimated the existing rule would have cost American businesses $1 billion in total to comply.

Specifically, EPA’s proposed revision would exempt reporting on PFAS manufactured (including imported) in mixtures or products at concentrations of 0.1% or lower. It would also exempt imported articles, certain byproducts, impurities, research and development chemicals, and non-isolated intermediates from reporting. The revision also includes technical corrections that would clarify what must be reported in certain data fields and adjust the data submission period. Notably, however, the revision will not change the 2011–2022 reporting timeframe. The proposed rule has not yet been published in the Federal Register, but once published EPA will accept comments on the proposed changes for 45 days after publication.

Babst Calland’s Environmental Practice Group is closely tracking EPA’s PFAS actions, and our attorneys are available to provide strategic advice on how developing PFAS regulations may affect your business. …

Pittsburgh, PA, Charleston, WV, and Washington, DC

Babst Calland has been recognized in the 2026 edition of Best Law Firms®, ranked by Best Lawyers®, nationally in 8 practice areas and regionally in 41 practice areas:

• National Tier 2
  • Energy Law
  • Environmental Law
  • Land Use and Zoning Law
  • Litigation – Construction
  • Litigation – Environmental
  • Mining Law
• National Tier 3
  • Natural Resources Law
  • Oil and Gas Law
• Regional Tier 1
  • Pittsburgh
    • Bet-the-Company Litigation
    • Commercial Litigation
    • Construction Law
    • Corporate Law
    • Energy Law
    • Energy Regulatory Law
    • Environmental Law
    • Land Use and Zoning Law
    • Litigation – Construction
    • Litigation – Environmental
    • Litigation – Land Use and Zoning
    • Mediation
    • Municipal Law
    • Natural Resources Law
    • Water Law
  • Charleston-WV
    • Business Organizations (including LLCs and Partnerships)
    • Commercial Litigation
    • Energy Law
    • Environmental Law
    • Litigation – Environmental
    • Oil and Gas Law
• Regional Tier 2
  • Pittsburgh
    • Information Technology Law
    • Real Estate Law
  • Charleston-WV
    • Arbitration
    • Banking and Finance Law
    • Commercial Transactions / UCC Law
    • Corporate Law
    • Mining Law
    • Natural Resources Law
  • Washington, D.C.
    • Energy Law
    • Environmental Law
    • Litigation – Environmental
• Regional Tier 3
  • Pittsburgh
    • Labor Law –

…

Pittsburgh, PA and Washington, DC

The Foundation Water Law Newsletter

(by Lisa Bruderly, Mackenzie Moyer and Ethan Johnson)

On August 21, 2025, the Pennsylvania Department of Environmental Protection (DEP) announced that companies may now request expedited permit application reviews under the Streamlining Permits for Economic Expansion and Development (SPEED) program. DEP likened the new program to an amusement park “fast pass.” Eligible permit types for the SPEED program include:

• Air Quality plan approvals (state only) (Chapter 127)
• Earth Disturbance permits (Chapter 102)
  • Individual NPDES Permit
  • General NPDES Permit for Discharges of Stormwater Associated with Small Construction Activities (PAG-01)
  • General NPDES Permit for Discharges of Stormwater Associated with Construction Activities (PAG-02)
  • Erosion and Sediment Control Permit
  • Erosion and Sediment Control General Permit for Earth Disturbance Associated with Oil and Gas Exploration, Production, Processing or Treatment Operations or Transmission Lines (ESCGP-4)
• Individual Water Obstruction and Encroachment permits for project impacts eligible for coverage under the federal/state programmatic permit (PASPGP-6 or its successor) (Chapter 105)
• Dam Safety Permits (Chapter 105)

After submitting a SPEED intake form, the appropriate office will schedule and hold an intake meeting with the applicant within two to three business days.

The applicant will then have the opportunity to select a DEP-approved qualified professional to conduct the expedited review of the application. Among other qualifications, the professional must have at least five years of relevant permitting experience in Pennsylvania. The applicant must pay the qualified professional the review fee up front. The qualified professional must complete the initial review within 20% of the total review timeframe in the project work order, or another agreed upon timeframe. …

Pittsburgh, PA and Washington, DC

The Foundation Water Law Newsletter

(by Lisa Bruderly, Mackenzie Moyer and Ethan Johnson)

On September 6, 2025, the Pennsylvania Department of Environmental Protection (DEP) published the Proposed Conditional State Water Quality Certification for the PASPGP-7 (SWQC), 55 Pa. Bull. 6477 (Sept. 6, 2025). The proposed conditional SWQC is for applicants seeking coverage under PASPGP-7 (the U.S. Army Corps of Engineers (Corps) Pennsylvania State Programmatic General Permit) for projects that do not require a federal license or permit other than a section 404 permit under the Clean Water Act (CWA). Comments on the SWQC were due by October 6, 2025.

DEP offered four main conditions, summarized below, that, if fulfilled, would demonstrate that a proposed activity under PASPGP-7 would comply with state water quality standards and certain provisions of the CWA:

1. Prior to beginning any activity authorized by the Corps under PASPGP-7, the applicant must obtain all necessary environmental permits or approvals and submit all required environmental assessments and other information necessary to obtain the permits and approvals.
2. The applicant must comply with required environmental assessments and other regulatory requirements.
3. Fill material may not contain any type of waste as defined in 35 Pa. Stat. § 6018.103 of the Solid Waste Management Act.
4. Applicants and projects eligible for the PASPGP-7 must obtain all state permits or approvals, or both, necessary to ensure that the project meets the state’s applicable water quality standards, including a project-specific SWQC, if needed.

As background, PASPGP-7 allows applicants to obtain both Corps section 404 permits and coverage under DEP permits or other authorizations for water obstructions and encroachments submitted to the DEP and for projects requiring permits or authorizations in this Commonwealth. …

Pittsburgh, PA

The Legal Intelligencer

(by Steve Korbel, Anna Hosack and Peter Zittel)

Social media has become the modern town square for many public officials.  Whether it’s sharing a recap of a school board meeting, celebrating a community event, or commenting on local issues, platforms like Facebook and Instagram are now a routine part of how leaders connect with their constituents.  But what happens when those online conversations intersect with Pennsylvania’s Right-to-Know Law, 65 P.S. § 67.101, et seq. (the “RTKL”)?  The Pennsylvania Supreme Court considered this question recently in Penncrest School District v. Cagle, 341 A.3d 720 (Pa. 2025), a case that sheds new light on how personal social media use by public officials can blur into the purview of the RTKL.

In May 2021, controversy arose in the Penncrest School District (“Penncrest”) after a high school library display included several books addressing LGBTQ+ issues.  A third-party contractor photographed the display and posted it to Facebook, where a school board member shared the image on his personal account, adding comments denouncing the display as “evil” and suggesting he would raise the issue at a future school board meeting.  Another board member also shared the post without commentary.  The incident drew local media coverage, and a resident, Thomas Cagle, filed a request under the RTKL seeking school board members’ emails and social media posts related to the incident.  While Penncrest released some district emails, it denied the request for board members’ social media posts, arguing that such content came from personal accounts.  Cagle appealed to the Pennsylvania Office of Open Records, which granted his request, reasoning that the board members’ posts directly related to district business, citing prior cases that emphasized substance over account ownership. …

Pittsburgh, PA

TEQ Hub

(by Kristen Petrina)

Due to the lack of a United States national data privacy law, the EU-U.S. have attempted to create a legal framework that permits a streamlined, regulated, and sufficient data transfer framework. Since 2015, three different data transfer agreements between the European Union and the United States were introduced. All three have faced challenges due to concerns the data transfer agreements did not provide adequate protections for EU citizens’ data from U.S. government surveillance.

The first data transfer agreement implemented but was found to be inadequate and invalidated in 2015 by the EU’s Court of Justice was the EU-U.S. Safe Harbor framework, which was deemed insufficient for protecting EU citizens’ personal data and fundamental rights, particularly in light of revelations about U.S. surveillance programs. The second data transfer agreement implemented but ultimately found to be inadequate and invalidated in 2020 by the EU’s Court of Justice was the EU-U.S. Privacy Shield framework, which was deemed to not offer the same level of protection as the GDPR. In particular, the framework did not adequately protect EU citizens’ data from U.S. government surveillance. The EU-U.S. Safe Harbor and EU-U.S. Privacy Shield frameworks were challenged by Maximiliam “Max” Schrems and his data privacy rights organization NOYB – European Center for Digital Rights (NOYB). The challenges are referenced as Schrems I and Schrems II cases, respectively.

The third data transfer agreement implemented was the Data Privacy Framework (DPF). The EU-U.S. DPF was challenged by Latombe citing, among other claims, the U.S. Data Protection Review Court lacked true independence and impartiality, established as a key redress pillar under the DPF, and the sufficiency of safeguards governing bulk data collection by U.S. surveillance and intelligence agencies without prior authorization from EU citizens and lacked adequate oversight. …