Texting and Driving: What Does the Law Say?

In today's society most everyone has a cell phone, correct? The majority send texts from those phones, and some, the unsafe few, send them while driving. In more and more states this has become illegal, and since November of 2011, Pennsylvania is one of those states.

While most people know that texting while driving is not considered to be safe, many still do it, thinking that it can't be that dangerous. Wrong. The Centers for Disease Control's information about distracted driving clearly shows that it is that dangerous, for everyone.They say that there are three types of distracted driving:
Visual―taking your eyes off the road;
Manual―taking your hands off the wheel; and
Cognitive―taking your mind off what you are doing.
The act of texting while driving fits into all three of distractions, without fail. There is no way to text and drive without doing these things.That means no more texting while driving, but does the average person know what the law considers to be “texting?” The wording of the code says:
Vehicle code (75 PA.C.S.) - Use of Interactive Wireless Communications Devices for Text-Based Communications While Motor Vehicles Prohibited

But what is a “text based communications device?” The law consideres it to be:
"Interactive wireless communications device." A wireless telephone, personal digital assistant, smart phone, portable or mobile computer or similar device which can be used for voice communication, texting, e-mailing, browsing the Internet or instant messaging. The term does not include any of the following:
(1) a device being used exclusively as a global positioning or navigation system;
(2) a system or device that is physically or electronically integrated into the vehicle; or
(3) a communications device that is affixed to a mass vehicle, bus or school bus.

That means that a phone, pda, laptop or tablet is considered to be an “interactive wireless communications device” according to the law. A GPS, if it is only a GPS (ie, Garmin, TomTom, etc,) or if it is integrated into a car is legal to use, but the GPS feature on a smartphone may not be.

Though it can be a hassle ,nothing is worth the consequences of sending a text. And as always, the experienced lawyers at Pottstown’s Wolf, Baldwin & Associates can answer your questions, and help you with your legal needs.

How to Manage Your Digital Estate Planning

When you say "estate planning" to someone, most will think about the usual topics: what will happen to assets like our home, our cars, monies, etc when we pass away. If we are prudent, we have a will as part of our estate planning, that tells what we want to happen to those assets, and we have people to execute that will for us. None of this is unusual procedure, even if a little uncomfortable for some to think about. However, what about our digital assets? What happens to your digital estate, when you pass?
The first step, according to this article on digital estate planning, is to make a list of what your digital assets actually are. How much do you have, in the digital realm, which you wish to have dispersed upon your passing?
Next, after you assess your digital estate, what do you want to do with it? What would you like to have deleted, what would you like to have archived, and is there anything that should have ownership transferred?
Once you have determined your assets and their fate, your next consideration should be whom do you want to execute those wishes. It should be determined if one person, or several would handle your digital estate, keeping in mind who will have the technological skills to do what you are asking of them.
Finally, when you know what your digital estate is and who you want to handle it, then you must document those wishes. Remember, this plan is for when you are gone, so your directives must be clear. There are many online services available to assist with conveying your wishes, although if a low-tech option appeals to you more you can always turn to things like safety deposit boxes.
Though no one likes to think about what will happen when they pass away, a little bit of preparation and estate planning will make things go more smoothly for your loved ones. And as always, the experienced lawyers at Pottstown’s Wolf, Baldwin & Associates can answer your estate planning questions, and help you with your legal needs.

Choosing an Attorney- Avoid Hiring a Lemon

By Kristen Doleva-Lecher, Esq.
Wolf, Baldwin & Associates, P.C.

The average time an individual spends researching cars prior to making a purchase is approximately 30 hours, with around 60% of that time, over 18 hours, spent on internet research.1 This statistic should not be surprising given that a car is a huge financial investment, on which we all rely for safety, transportation and functionality. Similarly, retaining an attorney for serious litigation can be a significant financial investment. A client will rely on the attorney’s knowledge and expertise, courtroom savvy, and negotiation skills. A certain level of trust goes along with the type of car you choose; that trust should be even deeper in the attorney you select. That being said, why is the time spent in choosing an attorney significantly less that that of a car purchase? Listed below are some suggestions as to how a more diligent search can and should be conducted prior to selecting your attorney.
Clients often find me on the internet. However, not one client has told me that he spent anywhere close to 18 hours searching. The internet is a terrific research tool for both cars and attorneys. There are several reputable sites regarding attorneys: Martindale Hubbell (lawyers.com), Avvo.com and Findlaw.com to name a few. These internet sites go into detail as to an attorney’s practice areas, education, years of experience, published works, seminars given, and more. Some of the web sites also have client reviews for the attorneys.
When an individual begins her car search, she has certain features she desires for her car. Some people need all wheel drive, or a convertible, or are looking for low gas mileage. Not all cars match every person since each individual has specific needs. The same holds true for an attorney – lawyers are not one model fits all. Some things to consider: if you are the type of person who is seeking a newer car with newer technology, think Bluetooth, SiriusXM, backup cameras; perhaps you will be looking for attorney who is more facile with technology. Some law firms are more progressive than others in use of technology. Is your attorney able to scan and email documents quickly, will he or she respond to email as a means of communication, does he or she accept text messages from clients? Some law firms will email invoices to cut down on paper usage and even offer payment through the internet on their web site via credit card.
Another example might be if you are in the market for a hybrid SUV with navigation and a DVD player; you may be looking for one vehicle that encompasses many functions. Similarly, do you need an attorney for one particular legal discipline, such as divorce, or do you own a business and have several issues for which you may need legal assistance? There are many attorneys identify themselves as “general practitioners” whose knowledge spans several different areas of law. A general practitioner can likely help you with a divorce as well as draft your Will. This is certainly not uncommon. However, another approach is to choose a law firm where you can take advantage of the knowledge of multiple attorneys who concentrate in each area in which you need assistance. This is an intensely personal choice as to whether you feel more comfortable working with one attorney who is familiar with you versus “switching” attorneys within the firm to ensure a specialist in each area.
This raises another issue to consider. We’ve all heard about bait-and-switch techniques in which you select a car and when you arrive at the dealership to complete the paperwork, a different car is waiting for you. Some law firms engage in bait-and-switch techniques as well. When interviewing a potential attorney, inquire as to whether that person will be handling your case or will an associate be doing some of the work. Who will return your phone calls, write the necessary documents, or go to court with you? The answer will vary depending upon the firm. It is not uncommon, especially in larger firms, for a client’s work to be performed by associates or paralegals. This is not to say that such policies do not result in certain efficiencies and potential costs savings for the client, but if you are concerned about who will be doing your work you should ask up front about the firm’s policies as to delegation of work.
Inherent in the purchase of a car is a lot of paperwork, such as a contract, the title transfer, loan documents, and warranty information. When you retain an attorney there is a contract created as well. Attorneys in Pennsylvania are required by the Rules of Professional Responsibility to enter into a “fee agreement” with each and every client. Fee agreements vary from attorney to attorney but they should be clear regarding the scope of the attorney’s work, and how the fees are to be billed (typically hourly, contingent, or flat fee). Fees can vary widely depending on the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly, as well as the local market and the experience, reputation, and ability of the lawyer or lawyers performing the services.
The final step in purchasing a car is the test drive. Unfortunately you can’t really “test drive” an attorney but you can take the opportunity to meet him or her through a consultation and ask the types of questions raised in this article. Clients meeting with attorneys for the first time are often shy, and this is understandable given that many people do not meeting with attorneys frequently. However, this is your opportunity to ask questions. As I tell potential clients, I should be the one feeling like I’m being interviewed because that is exactly what should be occurring. Attorneys work for clients and yes, and they should have to “sell” themselves. Take that first meeting as an opportunity to ask as many questions as you like. In my own consultations with clients, I take it upon myself to give a brief run down on my experience, my practice philosophy, and how I try to handle my interactions with the client and opposing attorneys. That first meeting is as much about your case as it is about whether that attorney is right for you. While you are deciding whether the attorney is right for you, the attorney is doing the same thing. As your attorney I want to believe in you, trust you and be able to provide you with the best representation possible. If I feel for whatever reason I am not able to do that, then I might not be the lawyer for you.
I hope that potential clients will spend more time choosing their attorneys, which will in turn mean more experienced, ethical attorneys will be retained. Most attorneys I know work very hard for their clients and have great relationships with those clients. Unfortunately just like there are cars that have a reputation as lemons there are “lemons” in the legal profession too. Unscrupulous attorneys, while few and far between, are those that give our noble profession a bad name. Spend a little more time choosing an attorney – it will be worth it to you, and will squeeze the lemons out of the business of law.
Kristen Doleva-Lecher, Esquire is an attorney in the law firm of Wolf, Baldwin and Associates, P.C., which has offices in Pottstown, Reading, and West Chester. She is a certified mediator and practices in the areas of family law and business representation. She may be reached by telephone at 610-374-2400 or by e-mail at kdoleva@wolfbaldwin.com.
1 Helen Leggatt, Car buyers spend majority of shopping time online, February 7, 2011, http://www.bizreport.com/2011/02/car-buyers-spend-majority-of-shopping-time-online.html

LOCAL LAW FIRM TO REMAIN IN POTTSTOWN: Family maintains Borough presence for over 100 years

LOCAL LAW FIRM TO REMAIN IN POTTSTOWN

Family maintains Borough presence for over 100 years

Pottstown, PA – December 22, 2011 – Wolf, Baldwin & Associates, P.C. announces that their new office location will be at 800 East High Street in Pottstown. The firm, founded by Jack F. Wolf, has been located on North Hanover Street since 1973. Bruce Baldwin joined the firm in 1987. The new building will give the firm approximately 50% more office space.

“We are pleased and excited to announce that our firm has secured a building here in the Borough,” said Mr. Wolf. “We engaged in an extensive search throughout the surrounding area, but we remain committed to the Borough. Although it will take a significant amount of work to refurbish our new home, our hearts are in Pottstown and we wanted to do our part for the economic revitalization of the Borough. We look forward to restoring the building to its former grandeur.”

Pottstown has been home to many Wolf-family owned businesses since the early 1900’s, starting with his grandfather’s scrap business. His uncles included a lawyer, dentist, and a dry cleaner. Many Pottstonians have fond memories of shopping at his parents’ store, Wolf’s China and Glass, on High Street. Mr. Wolf’s son, Levi S. Wolf joined the firm in 1996.

“I see our purchase of this building as another way of giving back to the community,” said Levi Wolf. “Keeping jobs in the borough is important to its revitalization, and important to us.” Wolf, Baldwin currently employs 16 people.

The firm anticipates it will move to its new location by summer 2012.

Wolf, Baldwin & Associates, P.C., is a seven-attorney, general practice law firm, with additional offices in Reading and West Chester. The firm’s areas of practice include Workers’ Compensation matters, Business and Corporate Law, Estate Planning, Administration and Probate, Real Estate, Family Law and General Civil Litigation.

Happy New Years! Please celebrate responsibly

While we value the relationship we have with our clients and look forward to representing you in the future, there are some situations that can be avoided. At Wolf, Baldwin and Associates we hope you enjoy your New Year's celebrations, but would ask that you do so responsibly. If you find yourself having a few too many, be safe and contact one of the services such as Designated Driving Services that operates in both Bucks and Montgomery counties.

Wolf, Baldwin and Associates does offer a variety of legal services including both DUI/DWI and Traffic Offenses. We are always happy to serve our clients. However, we hope that you celebrate this holiday safely and responsibly. Thank you for your business in 2011 and here is to a prosperous 2012!

NON-COMPETE COVENANTS: REASONABLE RESTRICTIONS OR UNREASONABLE RESTRAINTS OF TRADE?

Non-competition covenants – agreements by which employers seek to contractually restrict employees from later working for a competitive business, often for a year or two after leaving their current employment – are an ever-increasing part of the business landscape. Historically, these covenants were legitimately used to provide employers with critical protections against the taking of important parts of their business by key employees. More recently, however, the blanket and indiscriminate use of these covenants to bind all sorts of employees, from CEOs to entry-level sales representatives, has become an increasingly onerous and unreasonable limitation upon the activities of both employers and employees alike.

Non-competition covenants are, by their very nature, restraints on trade, contrary to the basic notions of the American free-market system. When properly used to prevent an employee from taking an employer’s trade secrets and using those secrets for the benefit of a subsequent employer, non-competition covenants can provide valuable and legitimate protection. However, these protections can almost always be provided with more narrowly written restrictions against the use of trade secrets and non-solicitation covenants.

The persistent and increasing use of non-competition covenants for non-key employees, and employees without the recipe to the “secret sauce,” is increasingly creating unreasonable restraints on trade, without actually protecting any legitimate interest of employers. In these cases, the primary effect, and sometimes the far more questionable and pernicious goal of the covenants, is to simply prevent employees from leaving their current employer rather than protecting that employer from legitimate risks of unfair competition after they leave.

This trend creates problems not just for the employees who are unable to take jobs in the only industries they know, but also for prospective employers who customarily must ask, in the current climate of non-competition covenant overuse and abuse, whether their prospective hires are bound by non-competition covenants. Increasingly, employers cannot hire experienced employees because those experienced employees are routinely bound, for a year or two or more, by questionable non-competition covenants.

Generally speaking a non-competition covenant is enforceable under Pennsylvania law if it was signed at the start of employment. And while continued employment is generally not sufficient consideration for a non-competition covenant signed well after the start of employment, covenants signed after the start of employment will be binding if the employee was given some additional consideration for signing that covenant after the start of employment. Non-competition covenants signed after the start of employment will often be deemed binding even where the additional consideration given is questionable or illusory, as where a company with no discernible stock value or no prospect for increased stock value awards an employee essentially worthless stock options in consideration for signing a non-compete covenant.

However, even though a non-competition covenant is theoretically enforceable if an employee receives some consideration for its signing, it is not always the case that a court will actually enforce that covenant. In the context of a request for an injunction to enjoin an employee from competing with the former employer, a court should not and generally will not enforce a non-competition covenant unless the former employer can establish that the employee’s competition is actually causing the former employer irreparable harm. Otherwise, the sole effect of the covenant (and often the primary motive to have such covenants signed in the first place) is to simply prevent an employee from leaving employment, which is plainly not a legitimate purpose for non-competition covenant under Pennsylvania law. The guiding principle of law is that non-competition covenants are restraints on trade and on the ability of a worker to earn a living, and are therefore not favored by the law. As a result, such covenants will not be enforced except to the extent necessary to prevent significant harm to the employer.

For employees who possess no particular trade secrets and who can cause the employer no harm beyond the short-term disruption that inevitably follows when an employee quits a job, the primary effect of a non-competition covenant is to prevent an employee from ever leaving employment, thus requiring that employee to put up with whatever pay cuts or onerous job restrictions the employer may seek to impose. Plainly in that case, the non-competition covenant limits the employee’s future job prospects while serving no compelling interest of the employer. In all likelihood, no court would enforce a non-compete covenant with an injunction under those circumstances.

Even so, the very existence of that non-competition covenant, however unenforceable, may be enough to scare off other prospective employers, particularly in the current economy – unquestionably an employer’s market. That is, given a choice between two equally qualified employment prospects, one of which is saddled with a non-compete and the other of which isn’t, a prospective employer is likely to avoid hiring the restricted employee and the associated headaches of having to deal with a possible lawsuit, and instead hire the unrestricted free agent.

What goes around comes around. The employer who gets the benefit of a non-competition covenant this year may be the employer looking to hire someone bound by a non-competition next year. For this reason, and also in order to not unnecessarily restrict the freedom of individual workers, employers may be well advised to reconsider the blanket use of non-competition covenants, and instead consider using less restrictive employment agreements, such as covenants restricting solicitation of customers and fellow employees, and covenants against the use of trade secrets. Not only are these covenants less burdensome and often more reasonable than non-competition covenants, they are also more likely to be enforced by a court, precisely because they are less burdensome and more reasonable. Employers and employees seeking advice on restrictive covenants should contact experienced legal counsel.

Wolf, Baldwin & Associates, P.C. is a general practice law firm in Pottstown, PA, founded by Jack F. Wolf in 1972. The firm’s areas of practice include Workers’ Compensation matters, Business and Corporate Law, Family Law, Estate Planning, Estate Administration and Probate, Real Estate, and General Civil Litigation. For more information, call 610-323-7436 or visit the firm’s website at www.wolfbaldwin.com.

Penn. Court Strikes Down Workers’ Comp Exclusion in UIM Policy

Pennsylvania Supreme Court stuck down an exclusion in an employer’s underinsured motorist policy. The policy from Penn PRIME had excluded underinsured motorist (UIM) coverage for a local police officer because he was injured during his employment and received workers’ compensation benefits.

The Pennsylvania high court reversed the appellate court’s ruling on the case. Pennsylvania Supreme Court’s ruling was issued on Oct. 19.

The case involves Sugarcreek Borough resident Frank Heller. He was working as a police officer at the borough when he got into an auto accident with an underinsured motorist on Oct. 31, 2002. Heller sustained severe injuries.

Workers’ compensation covered Heller’s medical expenses and two-thirds of his salary. Sugarcreek Borough paid him the remainder of his salary, according to the court documents.

Heller recovered the $25,000 policy limit from Allstate Insurance, the insurer for the driver responsible for the accident. However, Heller’s losses and damages far exceeded the liability coverage.

Accordingly, Heller notified his insurer of a potential UIM claim and sought UIM benefits from the borough pursuant to a policy issued by Pennsylvania Pooled Risk Insurance for Municipal Entities (Also known as Penn PRIME). The borough’s policy provided UIM coverage up to $100,000 per person or per accident.

But Penn PRIME denied Heller’s claim pursuant to a policy exclusion, which states that UIM coverage does not apply to any claim by anyone eligible for workers’ comp benefits that are the statutory obligation of the member.

Violation of Public Policy

The high court disagreed with Penn PRIME. It stated in the ruling, “we conclude that a workers’ compensation exclusion in an employer-sponsored insurance policy violates public policy and is, therefore, unenforceable. Accordingly, we reverse the order of the Commonwealth Court.”

The court also noted that if the exclusion is upheld the UIM coverage would be illusory. The court cited Heller’s contention that “virtually all” UIM claims will be made by the borough employees eligible for workers’ comp, leaving a “shallow pool” of individuals to whom coverage would apply. Heller maintained that Penn PRIME received a windfall by charging a premium for “illusory coverage.”

Heller also argued that the recovery of UIM benefits is essential for him to be made whole because workers’ comp provided only a partial benefit.

Illusory Coverage

Pennsylvania Supreme Court sided with Heller. The court stated, “we find that while the exclusionary provision does not facially violate the cost containment policy of the Motor Vehicle Financial Responsibility Law, its inclusion in an employer-sponsored policy operates to foreclose the majority of expected claims. Thus, the exclusion renders the coverage illusory, and the insurer receives a windfall by charging a premium for the coverage.”

Moreover, the court stated, where a third-party tortfeasor causes a work-related injury, the state law dictates that the ultimate burden for the payment of benefits must rest upon the tortfeasor or the UM/UIM carrier.

The court said Penn PRIME’s exclusion reverses this legislative priority by frustrating the right of subrogation, thereby ensuring that the burden for the payment of benefits remains on the employer and its workers’ comp carrier. “Since the workers’ comp exclusion operates to render the instant UIM coverage illusory and runs counter to the intended compensatory scheme established by the state’s General Assembly, we find it void as against public policy.”