Tuesday, November 5, 2013

Think Twice Before Retitling Your Home

As estate planning attorneys, rarely a month goes by where we do not hear from people who want to retitle their real estate to others for various reasons.  Often these people believe that they will save on probate fees or taxes by retitling the asset, or that they will protect assets from Medical Assistance or creditors.  But a recent case from the Pennsylvania Superior Court highlights just one of the dangers inherent in making such transfers without legal counsel.

In a non-precedential decision, Irish v. Warnshuis, 1124 WDA 2012 (October 10, 2013), the Superior Court affirmed the lower court which passed the real estate owned by Mrs. Irish to her children after she passed away.  At first blush, this does not sound like a strange result.  However, Mr. Irish disagreed.

Mr. and Mrs. Irish were married in 1982; it was the second marriage of each.  Mrs. Irish had children by a prior marriage.  Mr. and Mrs. Irish purchased a property together in 1987, but in 1990 Mr. Irish transferred his interest in the property to Mrs. Irish to protect the property from the potential claim of creditors of his aircraft business.  Mrs. Irish wrote a Will in 2003 which left $20,000 to Mr. Irish and the balance of her estate to her children from her prior marriage.  When Mrs. Irish passed away, Mr. Irish objected to the transfer of his property to his step-children, arguing to the court that he never intended to gift the property to his wife.

Mr. Irish asked the court to impose a constructive trust on the property, making him the beneficiary of the trust.  The children asked the court for sanctions against Mr. Irish, arguing that Mr. Irish was improperly obstructing their rights to the property.

The court agreed with the children, and disallowed the constructive trust.  The court found that Mr. Irish had ignored the advice of his attorney to purchase adequate liability insurance, and that the jointly-owned property would not be subject to the attachment of his creditors.  The court also found that Mrs. Irish had been told by her attorney that the effect of her Will would be to transfer her property to her children.  Mr. Irish appealed.

As mentioned above, Superior Court affirmed the lower court.  In doing so, it confirmed the law of constructive trusts: generally, a “constructive trust” is defined as a relationship with respect to property subjecting the person by whom the title to the property is held to an equitable duty to convey it to another on the ground that his acquisition or retention of the property is wrongful and that he would be unjustly enriched if he were permitted to retain the property.  The court recognized that a constructive trust could be created if (a) the transfer was procured by fraud, duress, undue influence or mistake, or (b) the transferee at the time of the transfer was in a confidential relation to the transferor, or (c) the transfer was made as security for an indebtedness of the transferor.  The court further noted that “[u]nder our case law, the marital relationship is not confidential as a matter of law. [Whether a confidential relationship exists in a marital union] is a question of fact and arises when one party places confidence in the other with a resulting superiority and influence on the other side” and that “where, as here, the parties are husband and wife, a presumption arises that a transfer [of property] between them was a gift.”

Finally, the court noted that the presumption of a gift of a transfer of property between husband and wife may be rebutted only with “clear, explicit and unequivocal – though not necessarily uncontradicted – evidence” that the transfer was not intended as a gift.

In the end, Mr. Irish got what he bargained for – the property went to his stepchildren.  The important takeaway from this story is that anyone considering a transfer of property should carefully consider all of the potential consequences, and should memorialize the transactions with written agreements.  Titles to property and beneficiary designations should be checked frequently.  Consultation with an experienced estate planning attorney is highly recommended to ensure that the transfers do not have unintended consequences.  And once you have the consultation and have heard the lawyer’s advice, consider following it.

Tuesday, October 8, 2013

Will, Power of Attorney, and Living Will - What Are They And Do I Need Them?

Almost all people in their lifetimes will have some interaction with the basic tools of estate planning: a Will, a Power of Attorney, and a Living Will.  Whether planning for ourselves or being designated as an executor, an agent, or a medical surrogate, such preparation, while not pleasant to contemplate, is necessary and wise to make sure our affairs are carried out as we wish when we are unable to communicate our desires directly.  This article will discuss each of these basic tools.

A.     The Will

 A Will is a written document which identifies who will receive your money and your property after you die.  Other than a Trust (which tool is beyond the scope of this article), a Will is the only way most individuals can have any say about “who gets what” after that individual passes on.  This includes not only family and friends but such things as gifts to charities and religious organizations.

However, if you do not have a Will (a state in which you are called “intestate”), the government, through a specific law called the intestacy law, mandates who gets your property.  If there is a surviving spouse or surviving “issue” (children, grandchildren and so on) such individuals will generally receive all or a substantial portion of the property of the deceased.  However, if there is no surviving spouse or issue, and there is no Will, the law passes the decedent’s property to others in the order of the closeness of their family relationship (the “degree of consanguinity”) to the deceased.  Although certain variations do exist, in general, the order in which family members inherit is: parents, brothers/sisters, nieces/nephews, grandparents, and then aunts/uncles.  In the absence of anyone closer, relatives as distant as the children and grandchildren of an aunt or uncle may be entitled to some portion of a decedent’s estate.  Finally, in the rare instance in which no relatives exist within these family categories, an individual’s money and property will “escheat.”  Escheat means that the deceased’s estate becomes the property of the Commonwealth.  This situation can be avoided with a properly executed Will, by which property can pass not only to one’s family, but to any person or any corporate entity to whom the person making the Will (called the “testator”) desires.

In addition to directing who gets an individual’s property, a Will can specify who does not get property or who does not get property directly.  This may be of great importance in situations where individuals who might otherwise inherit (by will or by intestacy) are incompetent to manage their own affairs whether because of physical disability, mental or emotional incapacity, youth or because they are subject to the influence of designing persons or even drugs or alcohol.  A Will can specify, for any reason or for no reason, that a certain individual or entity shall not inherit anything.  Additionally, a Will can create a Trust (called a “Testamentary Trust”) and appoint a Trustee, who would then manage any inherited money or property for the benefit of such a disabled or incapacitated beneficiary.  A Will can also designate an Executor or Executrix who is charged with managing the estate by paying any debts and transferring the remaining assets of the estate to the beneficiaries.

As you can see, a basic Will is a useful tool for your estate planning in all but the most limited and simple of situations.  A consultation with an attorney would be useful to find out how the above general information would specifically apply to you.

B.     The Power of Attorney

A Power of Attorney (“POA”) is a document by which one person (the “Principal”) authorizes another person (the “Agent”) to take various actions on the first person’s behalf. POAs are used for a variety of purposes and in a variety of contexts.

A POA could be used for very limited purposes.  This is known as a “Special” or “Limited” POA.  For example, a Principal could authorize her Agent to take action regarding only a single real estate or banking transaction.  On the other hand, a Principal could issue a very broad POA permitting the Agent to handle any aspect of the Principal’s business or personal matters.  Such a broad POA is referred to as a “General” POA.

Typically, a POA becomes effective the moment when both the Principal signs it and the Agent signs an “acknowledgment” of it.  As a result, the Agent may be authorized to act, even though the Principal also could continue to act for himself if he is able to and chooses to do so.

By far the most common type of POA, useful to the largest number of people, is known as a “General Durable Power of Attorney”.  As a General POA, it grants very broad current powers to the Agent.  In addition, however, as a “Durable” POA the Agent may continue to act on behalf of the Principal even after the Principal has become mentally or physically incapacitated such that she cannot act on her own behalf.  This is a very important and useful capability.  For example, if an elderly person becomes incapacitated by Alzheimer’s disease or other dementia, a child or other caregiver possessing a General Durable POA can perform necessary tasks, such as banking, authorization of medical care, and management of governmental services, which would be impossible to do without the POA.  Indeed, not having a Durable POA has on countless occasions prevented family or friends from taking needed action on behalf of an incapacitated person, and necessitated expensive and time-consuming court action to receive permission to act on the incapacitated person’s behalf.  The alternative is a “Springing” POA, which only becomes effective upon the occurrence of a certain event, such as the incapacity itself.  This Springing POA is, by its nature, self-limiting, and not as useful a tool for general estate planning, since there may be some question as to whether the principal is truly incapacitated, calling into question whether the POA is valid at any given time.

Finally, it is important to remember that a POA is a powerful tool which can and has in the past been subject to abuse.  On far more than one occasion, an Agent under POA, whether a family member, friend or hired professional, has wrongfully acted to advance the Agent’s personal interests to the detriment of the interests of the Principal.  Accordingly, while a POA typically establishes a convenient, useful, and often necessary, way to take action for the benefit of the Principal, it is of the utmost importance to select an Agent under POA who will be readily available and who is reliable, honest and trustworthy.

C.     The Living Will

The term “Living Will” is commonly used, albeit inexactly, to refer to a class of healthcare related documents which also includes a “Declaration,” an “Advance Medical Directive,” an “Advance Health Care Directive,” and a “Healthcare Power of Attorney.”  The basic purpose for all of these documents is similar.  They all involve methods of informing and directing doctors and other members of the medical profession of which treatments and procedures you do or do not want to be used, if you are in a hospital, in a terminal condition or a state of permanent unconsciousness, and cannot speak or otherwise communicate for yourself.

The form of the Living Will, the Declaration and the Advance Health Care Directive each are very similar to the others.  Each of these documents provides an individual the ability directly to communicate their treatment wishes to their doctor.  Most commonly, these documents are used to clarify which treatments and procedures an individual does not want to receive when confined in a hospital with no realistic prospect of recovery.  Such choices frequently are referred to as refusing “heroic measures” when such measures serve only to prolong the process of an individual’s dying.  Some of the heroic measures which most commonly are declined include cardiac resuscitation, mechanical respiration, tube feeding, and kidney dialysis.  There are however, any number of other treatments and procedures which an individual may identify.

These documents also typically appoint a “healthcare agent” or “healthcare surrogate” to direct doctors expressly to follow the individual’s previously recorded treatment wishes.  Making healthcare decisions for another, which may include choices between life and death, may well become difficult and stressful.  Common choices for this position include a spouse, an adult child, another family member or a very close friend.  In all cases however, it is critical to choose an agent or surrogate who is mature, emotionally stable and strong, who knows you well and can be trusted to follow your wishes.

Regarding a Healthcare Power of Attorney, the prime difference between it and the Living Will type documents, is that an individual formally grants his or her healthcare agent or surrogate the full authority of an agent under a power of attorney.  This type of document may, if desired, authorize the healthcare agent not only to direct the withholding of specific treatments, but also to direct, among other things, that specific treatments be authorized, that an individual be admitted to a medical, nursing, residential or similar facility, or, expressly to request or concur with a “no-code” (Do Not Resuscitate) order by an attending or treating physician.

These healthcare documents are available for the benefit of individuals seeking peace of mind that they will not be kept alive, indefinitely, in a vegetative state.  It is important to remember, however, that if an individual is awake and able to communicate, that his or her wishes always will supersede the directives of any written documents.  No one will be left untreated if he or she can and does specifically request that treatments be administered, no matter what is contained in the Advance Directive or Healthcare POA.  Finally, everyone should be aware that if you have not executed one of these healthcare type documents, all doctors and healthcare providers are ethically and legally obligated to administer all available and medically indicated treatments and procedures, indefinitely, whether or not you are in a vegetative state. 

It is plain to see that estate planning even on a basic level requires careful consideration and forethought.  Although there are plenty of cheap estate planning forms which can be purchased online or at stores, you get what you pay for.  Off-the-shelf Wills, Powers of Attorney, and Living Wills cannot substitute for the informed professional judgment of a Pennsylvania estate planning lawyer.  To make sure that your particular situation is handled correctly, so that you have the greatest peace of mind, consultation with an attorney is key.

Monday, September 16, 2013

Announcing the addition of Thomas A. Fosnocht, Jr. & Matthew T. Hovey to our firm

Wolf, Baldwin & Associates, P.C. announces the addition of two attorneys to their staff.  The firm now has a total of 9 attorneys working in their offices in Pottstown, West Chester and Reading.

Thomas A. Fosnocht, Jr. joins the firm with 30 years of experience.  He received a Bachelor of Arts in Political Science from the University of Pennsylvania, with a minor in Philosophy.  He continued at Vermont Law School, earning his Juris Doctor in 1983.

Mr. Fosnocht will focus his practice in Estate Administration, Probate and Orphans’ Court Litigation.  Mr. Fosnocht has clerked for Federal and State judges, most recently for the Honorable John L. Hall and the Honorable Calvin S. Drayer in Chester County.  He was a principal in the law partnership of Diehl & Fosnocht for many years in West Chester.

“Wolf, Baldwin is a first class law firm,” said Mr. Fosnocht, “and I am pleased now to be a part of it. I look forward both to providing our clients with the best legal advice and service possible, and to a long and enjoyable association with my new colleagues.”

Matthew T. Hovey also joined the firm in early September, 2013.  He received a Bachelor of Arts from Moravian College in 2006, with a major in Political Science and a Minor in History.  He attended law school at Villanova, earning his Juris Doctor in 2009. 

Mr. Hovey will focus his practice in civil litigation, municipal law and family law.  “Joining the Wolf, Baldwin team, with its deep roots in the Pottstown community and long tradition of serving the tri-county area, is a tremendously exciting opportunity. I have great respect for my new colleagues, personally and professionally.  I look forward to working beside them and contributing to the mission, service, and growth of the firm.”

“We are very happy to have Tom Fosnocht and Matt Hovey join our already strong group of attorneys,” said Levi Wolf, managing partner.  “Adding Tom and Matt to the firm will only expand our capability to serve our clients in Montgomery, Berks, and Chester Counties.”

Wolf, Baldwin & Associates, P.C. has offices in Pottstown, Reading, and West Chester.  The firm relocated its Pottstown office to 800 E. High Street in August 2012, after 37 years on North Hanover Street.  The firm was founded in 1973 by Jack F. Wolf, Esquire.  Bruce Baldwin joined the firm in 1987.  The firm currently employs 19 people.


Wednesday, September 4, 2013

Child Custody: Do I Really Need His Permission to Move?

Here is a common scenario: mother and father are married with three children.  Unfortunately, their marriage is on the rocks and the mother is considering separation.  Mother, a stay-at-home mom, wants to bring the children with her when she leaves.  The difficulty with separating, however, is that while father’s family is local, her family lives two hours away.  Nevertheless, after a particularly bad fight, mother leaves with the children and returns home to her support network, intending to make reasonable arrangements with the father at a later time so that he can see the children on the weekends.  A few days later, however, she is served with legal documents, filed by husband’s attorney, which claim that she violated the requirements of the Custody Law – specifically, 23 Pa.C.S. § 5337.  The court orders the mother to appear before a judge who will determine whether she improperly “relocated” with the children.  If the mother improperly relocated with the children, they may be returned to the father who may now gain an upper hand in any future custody and support proceedings.

The new custody law, with its relocation provisions, went into effect in early 2011.  An understanding of this law’s requirements is vital for any parent with a family dynamic that includes two parents who do not reside in the same home.  According to the Relocation Statute, if a parent wants to relocate with a child or children, then that parent must take specific steps to notify the other parent and provide an opportunity to approve or reject the move.  Yes!  You read that sentence correctly.  Pursuant to this law, you cannot relocate without the permission of either the other parent or the court. 

This should raise several questions for you: (1) When is a move a relocation?  (2) What steps do I need to take to comply with the law? (3) If the other parent rejects the move, how do I secure the court’s approval?

RELOCATION.  The first question is not easily answered.  The law defines a relocation as “a change in a residence of the child which significantly impairs the ability of the non-relocating party to exercise custodial rights.”  To date, the courts have not provided a clear test for determining when custodial rights are significantly impaired.  We know, however, that the court will take into consideration how the move will impact travel time, the ability of the non-relocating parent to attend events like baseball games and dance recitals, the ability to participate in parent-teacher conferences, and whether the move will force a reduction in the parent’s custodial time with the child.  Some courts may view a change of county or school district, even if the move is only a short distance away, as a relocation.

As a result, even a short move may qualify as a relocation if the move places limitations on the other parent’s ability to continue parenting at the present level.  For example, in a case where the parent moved about 20 minutes from the marital residence, the court treated the move as a relocation because the children crossed county lines and would be forced to change school districts.  Therefore, to be safe, any parent considering a move with a child should consult with an experienced custody attorney who can review the specific facts of your case and help you determine whether you need to comply with the notice requirements discussed below.  The failure to take this precaution could be costly, especially if the parent signed a lease or purchased a new home prior to securing the other parent’s or the court’s approval.

NOTICE.  To review on your own the law’s notice requirements in total, search for 23 Pa.C.S. §5337(c).  In summary, unless there are exigent circumstances, at least 60 days before the proposed move, via certified mail return receipt requested, the party proposing to move must notify any and all persons with custodial rights of the move.  In certain cases, this may include people other than the other parent.  For example, you will need to notify someone who is in loco parentis to the children, such as a grandparent or aunt and uncle.  The notice must include specific information, including the address of the new residence, the names and ages of every person living in the household, the school the child will be attending, the reasons for the move, and a proposed custody schedule.  You must also provide the other parent with the documentation needed to object to the move, which, if filed, triggers a hearing with the court.  The non-relocating parent will have 30 days to object to the move and/or your proposed custody schedule.  A failure to properly object is deemed an approval of the relocation.

That said, please note that the law provides an exception to these requirements if there is evidence of domestic violence.

HEARING.  If the other parent files an objection (counter-affidavit) with the court, the court will promptly schedule a relocation hearing to determine whether you will be permitted to move with the children.  At this hearing, you will have the burden of proof.  This means that it is your responsibility to convince the judge that the relocation, despite any negative impact on the other parent’s custodial rights, is in the child’s best interests.  Proving the best interests of the child is more of an art than a science.  Section 5337(h) provides a list of ten factors the court must consider in evaluating whether to approve a relocation.

Consideration of these broad factors helps to guide the judge’s understanding of the best interests of the child or children.  For example, the judge is required to consider “the likely impact of the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.”  The judge will also review the “nature, quality, extent of involvement, and duration” of the relationship between the child and the non-relocating parent.  If the child is old enough, the judge must also consider his or her preferences regarding the move.  Additionally, the judge will try to evaluate whether the move “will enhance the quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.”  Custody trials are time-consuming, but are life-altering for the whole family.  Therefore, it is important that a relocation hearing be taken seriously and approached with thorough preparation.

If you are planning on moving with your children the move will be scrutinized under requirements of the Relocation Statute.  You should contact an experienced custody attorney for a consultation.  It is important to have an attorney review the unique facts of your case and ensure strict compliance with the notice requirements.  It is also never too early to begin to prepare for a relocation hearing.

Wednesday, July 10, 2013

Injury Description Problems in Workers Compensation

One of the hot topics related to Pennsylvania workers’ compensation benefits is the official description of injury in a work-related accident.  My clients often ask me why the workers’ compensation insurance carrier is not paying for treatment related to a specific body part.  Insurance carriers will enumerate specific parts of the body as the “accepted workers’ compensation injury,” and other injured parts of the body are left out.  A concrete example may be useful to demonstrate some of the problems associated with an incorrect injury description. 

An employee, who in the workers’ compensation world is called a “claimant,” is injured on the job while driving a company vehicle.  After the accident the claimant ends up in the hospital.  The claimant’s primary complaint is his knee which will require immediate surgery.  The claimant undergoes surgery to repair a torn meniscus in his knee and begins physical therapy related to that injury.  A few days later he receives documentation from the insurance company which describes his injury as a “torn meniscus in right knee.”  However, upon arrival at the hospital, the claimant had also complained to the doctor that his lower back was also quite painful.  The ER doctor told him that they need to take care of his knee and then they would deal with the back.  However, when the workers’ compensation insurance company receives the medical reports from the hospital the only injury which is mentioned is the badly torn meniscus.  There may or may not be any mention of low back pain complaints in the doctor’s notes.  The claimant undergoes physical therapy for a number of weeks and during this time continually complains that his low back is painful.  However, since the primary injury from the accident was the knee injury, little or no treatment is rendered regarding the claimant’s lower back.  As the claimant’s knee begins to heal the lower back injury becomes the primary problem.  However, there is now a new problem for the claimant.  The insurance company has never officially accepted the low back as a workers compensation injury.  Thus, the insurance carrier refuses to pay for any treatment related to the lower back.

A few months after the injury has occurred, the claimant’s knee has healed to the point where he may return to work, but his back has not improved at all.  The employer is now looking to offer the claimant his pre-injury job and doesn’t understand why the claimant is refusing to return to work.  The insurance carrier is also under the same impression that the knee was the only problem.  Meanwhile, the lower back injury has become so bad that of the claimant feels that he could not return to work because of that injury alone.  The problem is, at this point, there is no lower back injury that has been accepted by the workers’ compensation insurance carrier. Thus, the claimant is stuck with an insurance carrier who does not want to pay for any treatment, and an employer who is wondering why he is not returning to work since he has now recovered from his knee injury.

The above situation, or something similar, happens quite often.  The claimant has no choice but to engage an attorney to file a petition to amend the injury description to include the lower back or other missing body part.  Such a petition is filed with the Bureau of Workers’ Compensation and will likely require long and expensive litigation, which can often take up to a year.  This litigation has its drawbacks for both the employer and the claimant.

Employers would be advised to make sure that that if their injured workers are reporting multiple injuries, all of those injuries should be investigated to the fullest extent.  If they are not, the above situation will probably occur.  While it is usually in the interest of the insurance company to make sure that it accepts as few injuries as possible (and, thus, pay for less treatment), the employer is left with a very large legal bill when the claimant is forced to litigate the issue of what injuries should have been included with his original accident.

Further, since the insurance company in the above example did not accept all of the proper work injuries the claim tends to go on considerably longer than it may have if the proper injuries had been accepted and treated.  For example, in the above situation, had the insurance company accepted a lower back injury, and the claimant had received injections and physical therapy related to his low back, the claimant may have returned to work inside of a few months after the work injury.  Instead, the claimant’s treatment was delayed by the carrier’s failure to accept the proper injury, and the carrier, on behalf of the employer, must typically pay the claimant wage loss benefits during the time that the injury description is litigated.  This causes the claim to be much more expensive for the carrier than it may have had it accepted up the proper injury from the beginning.

For the claimant whose injury is now not properly accepted, he may be unable to receive the proper treatment to his low back.  Thus, his injury may even get worse, and cause him to be out of work even longer.  The insurance carrier is only responsible for paying for injuries that are accepted, and thus, when the injury description is wrong, the claimant may be on his own to get the proper treatment.  In some cases, penalties and unreasonable contest attorney’s fees may be awarded against insurance companies which improperly investigate claims or fail to accept injury descriptions correctly.

It is clear that improper injury descriptions can cause workers’ comp claims in Pennsylvania to go on longer and become more expensive for all of the parties involved.  Employers, insurance carriers and injured workers should make sure that any and all injuries are investigated and documented from the very beginning, if at all possible.  Claimants, especially, should contact experienced counsel early on to ensure that their rights are properly protected.


Wednesday, March 27, 2013

A Visit To Your Local Zoning Hearing Board

Whether you own your own home or have a small business, you may have had the occasion to appear in front of your local Zoning Hearing Board.  Perhaps you wanted to construct an addition to your home or you needed additional signage for your business.  Whatever your project might have been, in these and other instances, you may have been told by the Zoning Officer of your municipality that before a building permit could be issued your project needed to be approved by the Zoning Hearing Board.

What does the Zoning Hearing Board do and why is their permission needed?  The formal legal answer is rather complicated, but a simple answer is that municipalities have the right to regulate the use of your property through their Zoning Ordinances.  Each Borough or Township has its own Zoning Ordinance and, therefore, each has its own set of zoning rules and regulations.

The items that are typically regulated include the size and width of your lot and the size, number, height and location of your house and other accessory buildings.  For non-residential properties, zoning regulations can include the size, location and number of signs, parking space requirements, driveway locations, and the amount of required open space or minimum green area.

Arranging for a hearing in front of the Zoning Hearing Board requires you to prepare and submit the municipality’s zoning appeal form along with information about your project and the payment of an application fee.  Once a complete application is received, a hearing is required to be scheduled within 60 days.  Most hearings are scheduled in the evening.  You should be aware that your neighbors will be receiving a notice by first class mail, which will contain a brief description about your project, along with the date, time and place of the hearing.

The Zoning Hearing Board itself consists of either three or five members.  The Zoning Hearing Board, essentially, serves in the role of a Judge; to listen to the testimony and review the evidence that you submit to justify the reasons for your proposed project.  The Zoning Hearing Board is generally assisted by its solicitor, who will advise the Zoning Hearing Board of legal issues, both during and after the hearing.

While the hearings are relatively informal, there is a court reporter or stenographer present to record the hearing, and any witnesses testify under oath.  Both Board members and neighbors have the right to participate in the hearing by asking questions.  Neighbors can also testify about their concerns with your project.

While you are not required to be represented by an attorney and many times property owners appear at hearings themselves, any party to a zoning hearing can be represented by counsel.  The formal rules of evidence do not apply, but certain information presented can be ignored by the Zoning Hearing Board if it is not deemed to be reliable.

Depending on the nature of the case, the hearing could be as short as 15 minutes or, in more complex cases, last several hours.  On other occasions for large or controversial projects, hearings can take multiple evenings and can, in some cases, take months or years for the hearings to finish.

Once the hearing is concluded, the Zoning Hearing Board, as the Judge, has 45 days to make its Decision and produce a written Order.  The written Decision and Order will set forth the reasons that the Zoning Hearing Board either granted approval of your project or denied your request.  In all cases, if you or your neighbors are not satisfied with the decision of the Zoning Hearing Board, you may have rights to appeal the Decision to the County Court of Common Pleas.

Thursday, February 14, 2013

Social Media and Privacy for Employees and Employers

As we enter a new year and welcome a fresh start in 2013, it is evident that the majority of us use some form of social media now, whether it is Facebook, Twitter, LinkedIn or another platform. Social media provides an abundance of reasons for people to engage.  People are able to reconnect, to network, to share current events, pictures and commonalities.  Social media is not without its disadvantages: studies show that people have become addicted and are “living” more on the internet than in reality.  The article, The Dark Side of Facebook: “10 Reasons to be Careful”  highlights negative effects for social media users in relation to their job.  Employees have been spending a lot of time on social media sites versus working, which they may not realize is monitored by their employer.  Additionally, a lawsuit emerged in which one employee made disparaging remarks about her boss on Facebook and was subsequently terminated.  This case has settled due to the overbearing restrictions in the Employee handbook.  NLRB's "Facebook Firing" Case Against AMR Settles, posted on February 10, 2011 by Brian Hall

Social media has proven to be problematic for employers as well.  If an employee is spending time on a social media site rather than doing his or her job, this is obviously costing the employer revenue.  Further, with the multitude of “pop-up” advertisements, employees are sometimes duped into clicking on a prompt unintentionally which can lead to a virus, again costing the employer money.

Not surprisingly, some employers are attempting to utilize social media to their advantage as a manner in which to check-out the employee or screen the prospective employee. If an employer can look at an employee’s “page” or social media presence then the employer is arguably gaining insight into the personality or character of the employee or prospective employee.  That aforementioned insight is exactly the problem, because “insight” of this type runs parallel to the fine line of privacy invasion.  This privacy encroachment is more evident when the employee’s page or social media information is not public and the employer asks for the individual’s password.  Such conduct begs the question of whether requesting an employee’s password is legal?  The answer is, yes -  as of this writing nothing specifically prevents an employer from requesting an employee’s password here in Pennsylvania.  However, Maryland has recently passed a bill which prohibits employers from requesting passwords from an employee to a social media site.

It is well known that labor law prohibits employers from asking certain questions of their employees or certain questions to a prospective employee during an interview.  The reason for this is to discourage workplace discrimination.  A problem exists when an employer requests a Facebook password thereby entitling them to privileged and private information otherwise not accessible. Should an employer later terminate an employee, and had access to private information from social media the employee potentially has an argument based on discrimination for something learned from social media.  Employers should have the applicant or employee sign a release and waiver to access such information.  

Do the pros outweigh the cons for requesting an employee’s passwords?  In my opinion they do not. First, the employer risks losing out on a qualified employee when during the interview process the request for a password is made and the employee does not comply and chooses to pursue another job. Second, as mentioned in the preceding paragraph, the potential for a discrimination suit greatly increases with the ability to learn of personal information.

What should you do if you, a Pennsylvania employee, are asked to produce your password for a social media site?  That answer is not straightforward and depends on your specific situation.  In the cases when you are interviewing for a job, given the economy and lack of jobs you may decide that your privacy takes a back seat to securing a job.  However, you may also feel that if an employer requests this from you, that company may not be the environment in which you desire to work.  If you are currently employed as an at-will employee, without an employment contract or collective bargaining agreement, and your employer requests your password, there is no statute in this Commonwealth that would prohibit the employer from terminating you if you declined to provide your password.

The bottom line is as an employer you should seriously consider whether you want to request social media passwords and speak to an attorney to be advised as to the possible repercussions prior to doing so.  Employees or prospective employees, similarly, may wish to consult with counsel to obtain a better understanding of their own rights.

Thursday, January 3, 2013

Can I collect workers compensation benefits and other benefits, such as unemployment benefits, at the same time?

As workers’ compensation lawyers we are often asked whether it is possible to receive workers’ compensation benefits in addition to unemployment and/or Social Security benefits.  Further, we are often asked whether there would be any advantage to collecting multiple benefits at the same time.  The simple answer to all these questions is "yes."  However, the interplay between these three types of benefits can be quite complicated.  First, we will address why you would ever want or need to collect more than one type of these benefits at one time.

As attorneys, when people come to us looking to get help obtaining workers’ compensation benefits, it often means that their claim has been denied.  This means that they were injured at work, and for whatever reason the insurance carrier is refusing to pay a wage loss benefit.  If the claim has been denied for both medical and wage loss, the injured worker will be without both medical benefits for the injury, and without wage loss benefits, unless the benefits can be “turned on” either through court proceedings or an agreement of the parties.  If the injury is very severe, this may mean that they would be without income for as long as takes to litigate a claim for workers’ compensation benefits; to litigate a claim petition for workers’ compensation benefits from start to finish, depending on the judge, could very well take anywhere from eight months to a year, or even longer.  So, how will these injured workers get by in the meantime?

One of the possible sources of income for a person in this predicament would be unemployment benefits.  However, there are a few catches if this person expects to be able to get such benefits.  First, if the injured worker has been fully disabled from working by her doctor, she will not be able to receive unemployment benefits.  In other words, unemployment benefits are only available to someone who is able to work in some capacity and is unable to find any type of job.  So what this means in practical purposes, is if the injured employee applies for unemployment but is unable to perform any type of work whatsoever due to the injury, unemployment is not available. However, if the injured employee is only disabled from her original job, and is available for light or sedentary duty work, and there employer has offered no such work, unemployment benefits may very well be available, but they are not automatic.  The employer is not precluded from challenging the award of unemployment benefits.  If the employer challenges the unemployment, the injured worker may very well need to hire counsel to pursue those benefits.

However, let us assume that the injured worker receives unemployment benefits during the litigation of the workers’ comp claim petition.  First, he must comply with the requirements of the unemployment administration, including reapplying for benefits periodically while showing job seeking efforts with alternative employers.  This may seem strange, especially since the injured worker often has plans to return to the pre-injury job as soon as he is able.

If the petition for workers’ compensation benefits is successful, in Pennsylvania the employer and its workers’ compensation insurance carrier will be entitled to a credit for the net unemployment benefits received by the injured worker.  For example, if the injured worker is injured on January 1, 2013, and the claim is originally denied but litigated for a year, if the claim is successful, workers’ compensation benefits would be payable retroactively for the entire year that the claim is litigated.  If the injured worker received unemployment benefits for any or all of that time, the back owed workers’ comp benefits would be offset by the net amount of unemployment benefits received.  Thus, if the amount of weekly workers compensation benefits received are nearly identical to the amount received under unemployment, there may be little or no benefits owed to the injured worker for the previous year, although there would possibly be benefits going into the future, and further unemployment claims would not be necessary.  Unlike workers’ compensation benefits, unemployment benefits are taxable and are not indefinite.  Thus, we typically advise clients that once the workers’ compensation benefits begin, the client should allow the unemployment award to lapse.

Similarly, we are often questioned by clients wondering whether to apply for Social Security Disability benefits while receiving or attempting to obtain workers’ compensation benefits.  It is legal in Pennsylvania to receive both types of benefits at one time.  However, Social Security Disability benefits will usually be offset by the amount of workers’ compensation benefits received the injured worker.  This calculation is complicated and is specific to each individual’s case, but the concept is that Social Security limits the amount you can receive in Social Security Disability plus workers’ compensation combined, and will reduce the Social Security award to cap the total received by the injured worker.

At first glance it may appear that would not make sense for someone receiving workers’ compensation benefits to apply for Social Security Disability.  However, even if Social Security benefits are reduced by an offset, a few dollars more per month can be very beneficial to struggling families in these tough economic times.  Additionally, a big advantage to the Social Security Disability award is the ability of the injured worker to obtain Medicare benefits to cover non-work related medical issues.  This would become increasingly important during the litigation of a claim if the employer refuses to continue to pay for the injured worker’s health benefits.  In general, a Pennsylvania employer is not required to continue to pay for the health benefits of an injured worker while that person is not able to work due to a work injury, so having an additional avenue to obtain coverage is important.

Keep in mind, however, that the receipt of Social Security Disability benefits will have a significant impact on a workers’ compensation claim, especially when it comes to settlement negotiations. These issues are beyond the scope of this article, however, if you are receiving workers’ compensation benefits and have any thoughts of applying for Social Security Disability benefits, consultation with an attorney would highly advisable.

This article is meant to be an overview of the interplay between these benefits.  No article can substitute for the expert opinion of a workers’ compensation lawyer.  Any person receiving or seeking workers’ compensation benefits should meet with an attorney who focuses on workers’ compensation to discuss applying for unemployment or Social Security Disability and their effects on his or her claim.