Friday, December 12, 2014

JESSICA R. GRATER JOINS WOLF, BALDWIN & ASSOCIATES, P.C.


Wolf, Baldwin & Associates, P.C. is pleased and excited to announce the addition of Jessica R. Grater to the firm.  Ms. Grater is the ninth attorney on staff at the firm, and will focus her practice on Estate Administration and Probate, Estate Planning and Social Security Disability.

“When our search for a candidate to join our probates and estates practice led to Jessica Grater, we were thrilled," said Levi Wolf, managing attorney at Wolf, Baldwin."  She has strong legal skills, she is client-service oriented, and she has deep local ties.  We could not be happier to have her join our team of legal professionals."

Ms. Grater earned her Juris Doctor degree in 2007 from Widener University School of Law, where she graduated in the top one-third of her class and earned a Certificate of Achievement in Constitutional Law-Seminar. 

“Wolf, Baldwin & Associates, P.C. is a highly respected general practice firm,” said Ms. Grater.  “They have a wonderful reputation for working hard for their clients while treating each of them with compassion and dignity.  I am excited and honored to become part of its respected legal team."

Prior to joining Wolf, Baldwin & Associates, P.C., Ms. Grater managed the firm of E. Kenneth Nyce Law Office in Boyertown.  Previously she worked for Rabenold, Koestel, Scheidt from 2007-2009.

Wolf, Baldwin & Associates, P.C. is a general practice law firm, with offices in Pottstown, Reading and West Chester.  The firm’s areas of practice include Workers’ Compensation, Business and Corporate Law, Estate Planning, Estate Administration and Probate, Municipal Law, Real Estate, Family Law and general civil litigation.

Tuesday, December 9, 2014

Financial Implications of Divorce – Support and Alimony

Finances are of course one of the biggest concerns of a potential client during a divorce consultation. Depending on the client’s role, he or she will want to know, how much will I be receiving, or how much will I be paying? There are three important legal terms associated with separation and divorce that come into play: Spousal Support, Alimony Pendente Lite (“APL”) and Alimony. In order to qualify to receive or have to pay any of these obligations, both spouses must be “living separately” or their finances need to be separate.

 “Alimony” is money that is only paid after the entry of the divorce decree and is set forth in a legal divorce document, (either a Divorce Decree itself, or an agreement called a Post Nuptial Agreement or a Marital Settlement Agreement). Alimony in Pennsylvania is based on need, but in practice it is handled differently by the judges of different counties across the state and even different masters and judges within the counties. Some people have the idea that one year of alimony might be awarded for every three years of marriage. In practice, this is not necessarily true and in fact most divorce masters and judges tend to award what they perceive to be an appropriate amount of equitable distribution of current assets rather than award alimony. Additionally, it is not unusual for a master or judge to decline to award alimony unless a couple has been married for a significant amount of time, perhaps seven or eight years. If the parties cannot agree on the terms of alimony, the court will evaluate the needs of the parties and attempt to effectuate economic justice based on the factors set forth in the divorce law. Those factors include the reasonable needs of the parties, taking into account the lifestyle and standard of living established by the parties during the marriage, and the spouse’s ability to pay. Alimony commonly terminates if the recipient dies or remarries, but this can be modified by a court order or the agreement of the parties.


Spousal Support” is a payment on account of the care, maintenance and financial assistance of the dependent spouse, and is not actually dependent on a divorce action being filed. Spousal support can be awarded once the parties are separated; i.e. when the parties no longer hold themselves out to be spouses and typically have ended marital relations and separated their finances.

 Unlike spousal support, alimony pendente lite (“APL”) is only available when there is a divorce action pending between the parties; pendente lite is Latin for “during the litigation.” One cannot receive both spousal support and APL, although in certain cases counsel fees and costs can be awarded in addition to spousal support or APL. Both spousal support and APL, like are determined by using statewide support guidelines that take into account the parties’ incomes. Without child support issues, spousal support and APL are frequently 40% of the difference between the parties’ net incomes. It is important to note that spousal support, alimony, and APL payments are tax deductible for the payor and are considered taxable income to the recipient. 

The calculation of alimony, spousal support, or APL can be challenging and full of pitfalls for the unwary. Although the internet contains some Pennsylvania support calculators, consultation with an experienced family law attorney is advisable for people with questions about how much they might have to pay, or how much they might be entitled to receive.

Kristen Doleva-Lecher, Esquire is an attorney in the law firm of Wolf, Baldwin and Associates, P.C.. She practices primarily out of the Reading office, but the firm has additional offices in Pottstown 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 to kdoleva@wolfbaldwin.com.

Tuesday, November 11, 2014

The Truth…About Title Insurance

      I am admittedly a big fan of the AMC television series, Mad Men. In one episode, advertising executive Don Draper, frustrated about losing a large tobacco client, pens an open letter and has it published in The New York Times entitled “Why I Am Quitting Tobacco.” The point of Don’s article was an attempt to attract business in a different way by pointing out the very real, but largely unpublicized at the time, dangers of cigarette smoking. I am undertaking this column after a similar experience with one of my own long time clients, which illustrates what the business of title insurance is really about.

     Imagine yourself at a car dealership, preparing to sign on the dotted line to purchase a vehicle costing anywhere from $30,000 to $80,000 when the salesman turns to you and states: “Hey, you know you need insurance on this beauty. Harrisburg says you gotta. How about I just place that for you? Our dealership has a financial interest in the insurance company.” Of course this doesn’t ever happen, mostly because people know that they have a choice as to where they get insurance. They know they can go with the reptile, Flo or maybe the guy with the deep voice to get their auto insurance, because auto insurance has been defined as a product by mass marketing, or advertising by a company such as the fictional Sterling Cooper Draper Pryce. But that is how title insurance is ordered every day, by allowing your realtor to order your title insurance, most likely from a company in which the real estate company or realtor has a financial interest. If your realtor was from one of the “big boys” in the real estate industry, that is almost definitely the case.

     Tell me the last title insurance commercial you saw watching any sporting event on television. I’ll wait. Never seen one? How about during your favorite news program? Nope. I would venture to say, with reasonable certainty, that you have never seen a title insurance commercial. Can someone explain how a product that protects your home ownership – which is worth probably ten times the value of your automobile – is given absolutely no respect and is utilized as an additional profit center by the real estate company?
    
      In 1974, Congress passed the Real Estate Settlement Procedures Act (“RESPA”) to regulate the costs consumers pay to settle their real estate transactions. The statute states: The Congress finds that significant reforms in the real estate settlement process are needed to insure that consumers throughout the Nation are provided with greater and more timely information on the nature and costs of the settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices that have developed in some areas of the country. 12 U.S.C § 2601(a). Further, ownership of a title insurance agency became, for the first time, available to realtors under the theory that the “bundling” of services would affect certain economies of scale that would result in lower prices to the consumer. 

      Let’s see how home buyers and sellers have fared in Pennsylvania since HUD gave the realtors the ability to own title companies.

      Since the title insurance premium is regulated by the Commonwealth of Pennsylvania Insurance Department, your title insurance premium, which is based on the purchase price of your house, is the same whether you purchase it from the realtor’s company or an independent title agency whose focus is on protecting your interests alone. So the consumer saves nothing by using the realtor’s company. 

      Have costs to the consumer increased since the title agency ownership changed from 100% independents to a mix of realtor owned and independent agencies? Sadly, yes. In addition to the real estate commission (somewhere between 3% to 6% of the sale price of the house), some real estate agencies collect “conveyancing fees.. These fees, ranging from $100 to $250 or more, and typically charged to the seller, are for the exact same services that the independent title agency performs as part of the title insurance underwriting (ordering tax certifications, obtaining mortgage payoffs, etc.), at no extra charge. So, instead of reducing costs, actually the opposite has occurred, as consumers are paying more for services that they used to get for free. 

      Another “charge” a real estate agency imposes on a buyer is something that used to be called a “broker service fee”; this fee, ranging from $200 to $550, is now called an “additional commission.” Some consumers initiated litigation in several states claiming that the fee being charged was unearned and therefore in violation of RESPA when:  (1) a fee is charged but “no, nominal, or duplicative work is done” in exchange for the fee;  or (2) a fee is charged that is unreasonably excessive in light of the services actually performed in exchange for the fee. One of the results of the litigation was not that the fee was relegated to the ashcan of history where it belonged, but that its name was changed.

      All of the above only drives home the need on the part of the Buyer or Seller of real estate to consult with an experienced real estate attorney before contacting a realtor for the sale or purchase of your home. You need to know what charges should be negotiated out of any buyer agency contract or listing agreement into which you enter, and you especially need to know the advantages of hiring a truly independent title agency to represent your interests in the most important purchase most of you will ever undertake. Your federally mandated right to choose an independent title agency should not be usurped by your realtor to allow the realtor, or their agency, additional profit.

      Andrew J. Monastra, Esquire recently joined the law firm of Wolf, Baldwin and Associates, P.C., which has offices in Pottstown, West Chester, and Reading. He has represented consumers and businesses in real estate transactions for over 23 years, and he is the owner of Heartland Abstract, Inc., an independent title agency located in Pottstown. He may be reached by calling 610-323-7436, or by e-mail at amonastra@wolfbaldwin.com.

Tuesday, October 28, 2014

LEVI S. WOLF ACHIEVES MARTINDALE-HUBBELL’S HIGHEST RATING


     Levi S. Wolf has achieved the AV Preeminent® Rating - the Highest Possible Rating from Martindale-Hubbell® for both ethical standards and legal ability. As explained on the Martindale.com website, “The Martindale-Hubbell® Peer Review Ratings™ are an objective indicator of a lawyer's high ethical standards and professional ability, generated from evaluations of lawyers by other members of the bar and the judiciary in the United States and Canada.” The AV Preeminent is a significant rating accomplishment and a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence.

     “Prior to the age of the internet,” said Mr. Wolf, “Martindale Hubbell ratings were one of the only ways to get any objective measure of a lawyer’s proficiency and standing in the legal community. When I was a young lawyer, I knew that anyone with an AV rating would be knowledgeable in his or her field, and considered by his or her peers to have the highest ethical standards. Although today there are many more sources of ratings on the internet, the AV rating is still a humbling achievement and I am honored that my peers hold me in such high esteem.”

     Mr. Wolf also holds the highest rating, 10 out of 10, on Avvo.com, an internet-based rating site for lawyers.

     Mr. Wolf practices primarily in the areas of workers’ compensation and family law. He is one of approximately 180 lawyers across the state who are certified as specialists in the practice of workers' compensation law by the Pennsylvania Bar Association's Section on Workers' Compensation Law as authorized by the Pennsylvania Supreme Court. He was admitted to the bar in 1996 and has practiced in Pottstown since that time.

     Wolf, Baldwin & Associates, P.C. is a general practice law firm, with offices in Pottstown, Reading and West Chester. The firm employs 19 people, including 8 attorneys. The firm’s areas of practice include Workers’ Compensation, Business and Corporate Law, Estate Planning, Estate Administration and Probate, Real Estate, Family Law and general civil litigation.

Thursday, October 9, 2014

Death Benefits under the Pennsylvania Workers’ Compensation Act


Workers’ Compensation death claims, otherwise known as fatal claims, provide a measure of relief for families which have lost a loved one due to an on-the-job injury.  Section 307 of the Workers’ Compensation Act (77 P.S. § 561) provides for a weekly compensation benefit and burial expenses where a death results from a work injury or an occupational disease.  This type of benefit could potentially last a lifetime depending on the facts surrounding the death of an employee.  The most common example of a fact scenario that results in a death benefit is when a person is killed on the job.  For example, if a construction worker falls from a building and passes away, his spouse and potentially his children would be entitled to a workers’ compensation benefit which would be based on very specific calculations outlined in the Workers’ Compensation Act.  However, deaths resulting from an accident on the job are not the only example of facts in areas which could potentially produce a death benefit.  Another example might be a lethal infection resulting from a surgery needed to treat a work-related injury.  However, what exactly is owed to the survivors of such an unfortunate accident?

First, if the injury or death which resulted at work is not immediately recognized as related to work, the dependents of the decedent must first prove that 1) they are dependents of the decedent and 2) the death was work-related.  While these factors may sound obvious, they are often points of great controversy.  For example, if an employee is playing a sport at a work-sponsored event and suffers a fatal heart attack, would her death result in workers’ compensation benefits?  The case law on this type of death is rather clear.  Even though the decedent was not necessarily in the course and scope of her regular employment, she was certainly participating in an event that was set up by the employer and has some benefit to the employer’s business.  Such work functions are generally regarded to further the employer’s business.  Thus, generally, in this situation the death of this employee would be considered work-related and any dependents would have a right to a death benefit.

The next question would be who is entitled to a death benefit?  It is important to note that even if a worker dies on the job from a clear work injury, if he has no dependents then no fatal claim benefits would be due.  Generally, a surviving spouse would be entitled to the death benefit at a rate of 51% of the decedent’s preinjury average weekly wage.  If the deceased also had one minor child, the widow and the surviving child would be entitled to 60% of the decedent’s average weekly wage.  If employee had has two minor children or more, the percentage goes to 66 2/3%.  The surviving spouse must show that he or she was married to the employee at the time of death, and must actually be dependent on the employee as well.  If the surviving spouse lived separately from the decedent and did not have any financial support from the decedent, a workers’ compensation insurance carrier could certainly make the argument that while the couple was legally married, the surviving spouse was not actually dependent on the decedent.  With regard to the surviving children, only children under the age of 18 are entitled to be considered at the time of death.  However, surviving children would be entitled to be included in the class of dependents up to the age of 23 if they are enrolled in college or graduate school.

The class of dependents is not always so clear.  For example, if at the time of death one child is enrolled in college, but then a few months later drops out of college, the number of dependent children who could be included in the class for determination of the percentage to be paid to the dependents might change.  Further, what happens if that child re-enrolls in college?  Should the percentage go back up?  These questions are not immediately clear, and the case law related to these questions is relatively sparse.  This is because many claims related to death benefits often settle relatively quickly.

In Pennsylvania, the surviving spouse and any dependent children are entitled to the statutory specific percentages of the decedent’s average weekly wage.  The preinjury average weekly wage calculation itself can be quite complicated, but in simple terms it is typically a snapshot of the earnings from year preceding the employee’s date of injury.  This average weekly wage forms the basis of the death benefit to be paid. 

Generally, death benefits are payable to the surviving spouse so long as she lives and does remarry or enter into a “meretricious relationship.”  This term has generally been considered to describe when a surviving spouse either lives with or marries another person.  However, it is questionable whether the mere act of sexual relations with another person would render the surviving spouse ineligible for any further death benefits.  For this reason alone, these cases often settle before the benefits are paid for many years.  Death claim cases settle for a number of other reasons as well.  If the surviving spouse dies for any reason, the only additional benefits owed would be to any surviving children so long as they are either under the age of 18 or under the age of 23 and enrolled in a college or graduate school.  Thus, if a surviving spouse were to die after the surviving children reach the age of 23, the death benefit would essentially end.  Thus, surviving spouses often elect to try to settle the case for some type of lump sum to guarantee that the family of the decedent gets some money.  So the question becomes, what is the value of a death claim if it is paid in a lump sum?

To answer this question, attorneys will often use the U.S. Life Tables or other actuarial methods to try to predict the life expectancy of the surviving spouse.  For example, a surviving spouse who is 50 years old may have a life expectancy of 30 years.  That spouse may be entitled to a weekly check of $600.  Thus, the resulting yearly rate would be $31,200.  If the surviving spouse were to receive those benefits for 30 years, or her life expectancy, the resulting total would be $936,000.  So would the value of the case be $936,000?  The simple answer is no.  A more accurate method is to try to determine the present value of the expected stream of income.  The present value of the stream of $600 per week for 30 years is similar to figuring out how much a similar annuity would cost.  Of course, the present-day value of $936,000 paid as an annuity over 30 years is much less than $936,000.  The exact calculations related to the above example go beyond the scope of what this article covers.  However, the important question the surviving spouse must ask is how much money is the insurance company willing to pay right now to avoid the possibility that the surviving spouse may live well past their life expectancy?  Further the surviving spouse must ask themselves whether they believe that they will be unmarried and living alone over the next 10, 15, or possibly 20 years.  This question is difficult to contemplate immediately following the death of a loved one.  However, the surviving spouse must ask herself whether she will remain unmarried and living alone for the rest of their lives.  This answer may be easy if the surviving spouse is at an advanced age.  However, if the surviving spouse is 35 years old, can that person reasonably expect that they will live out the rest of their lives without entering into a new relationship?

These are just some of the questions which come up when deciding how to proceed with the death claim.  The initial step is to establish that there is in fact a valid death claim.  Once that occurs, neither the insurance company nor the surviving spouse is under any obligation to settle the claim. However, because of the uncertainty of how much will be paid and for how long, both parties will typically have an interest in working out a resolution which shares the risk among all the parties.  One thing is clear – experienced workers’ compensation counsel is a must for anyone going through the very sad situation of an untimely death of a loved one caused by work.  The situation is difficult enough.  It is important for surviving spouses and children to learn their rights and to have competent counsel direct them through the process of litigation and settlement.

Daniel E. McCabe, Esq., is an associate in the law firm of Wolf, Baldwin & Associates, P.C..  He and managing attorney Levi S. Wolf are two of less than 200 lawyers across the state who have been certified as specialists in the practice of workers’ compensation law by the Pennsylvania Bar Association’s Section on Workers’ Compensation Law as authorized by the Pennsylvania Supreme Court.  His practice, located in the firm’s West Chester office, concentrates on the representation of injured workers and medical providers.  He can be reached by phone at 610-436-8300, or by e-mail at dmccabe@wolfbaldwin.com.

Tuesday, September 23, 2014

ANDREW J. MONASTRA, ESQ. TO JOIN WOLF, BALDWIN & ASSOCIATES, P.C.


Pottstown, PA – September 22, 2014 – Wolf, Baldwin & Associates, P.C. is pleased and excited to announce the merger of Andrew J. Monastra, P.C. with Wolf, Baldwin & Associates, P.C..  Mr. Monastra will be the eighth attorney on staff at the firm and will significantly expand the firm’s Real Estate capabilities.  He concentrates his practice in Residential and Commercial Real Estate, Business Formation, Title Issues and Credit Union representation. 



“I am proud to associate myself with a firm whose members are all respected experts in their field of practice,” said Mr. Monastra.



Mr. Monastra has been practicing law since 1991 – starting his career with Wolf & Associates, which became Wolf, Baldwin & Associates, P.C. in 1999.  Before that time he worked in the aerospace industry while earning his juris doctor at night at the Widener University School of Law.  Mr. Monastra earned his Masters in Business Administration from Drexel University in 1984, and a degree in business from Villanova University in 1982.



The majority of his practice centers on residential and commercial real estate transactions, business formation, resolving complex title issues and serving as underwriting counsel to many federal credit unions.  Mr. Monastra will also be assisting Jack Wolf with his Estate Administration practice.

Mr. Monastra will maintain his title insurance agency, Heartland Abstract, Inc. as a separate business.



“I am thrilled to be working with Andrew again.  His presence in our firm brings an added depth to the services we offer,” said Mr. Wolf, founding shareholder of Wolf, Baldwin & Associates, P.C.  “His knowledge and experience brings another dimension to our practice and allows us to provide additional legal services to our clients.”  Mr. Monastra will join Wolf, Baldwin & Associates, P.C. on October 1, 2014.



“We are extremely excited to have Andrew join our team,” added Levi Wolf, Jack Wolf’s son and managing attorney at Wolf, Baldwin.  “We are pleased to add the services of another highly respected and competent attorney to an already outstanding group of lawyers.  We look forward to continuing to deliver quality legal services to Pottstown, West Chester, Reading, and the surrounding communities.” 



Wolf, Baldwin & Associates, P.C. is a general practice law firm, with offices in Pottstown, Reading and West Chester.  The firm’s areas of practice include Workers’ Compensation, Business and Corporate Law, Estate Planning, Estate Administration and Probate, Real Estate, Family Law and general civil litigation.


 

Tuesday, August 12, 2014

LOCAL LAW – THE CREATION OF A MUNICIPAL ORDINANCE


            Everyone is very familiar with laws, rules and regulations that are enacted by the Federal and State governments.  These are approved by Congress or the State Legislature, and in some cases executive orders by the President or the Governor.  These laws have broad applicability and are generally well known.

 

            However, there is another entire set of laws passed by the most local government unit, the municipality, which apply only to that Township or Borough.

 

            These rules are permitted to be adopted through state enabling legislation such as the Borough Code, the First Class Township Code, and the Second Class Township Code.  In each case the Code provides in some detailed guidance on the issues that can be regulated by the municipality.  Typically, the more developed or urban the municipality, the more likely there is a comprehensive set of municipal ordinances.  Less developed, more rural municipalities, are less inclined to impose local regulations on its residents.

 

            Types of ordinances include regulations dealing with land use (zoning), storm water, property maintenance, trees, parking, traffic regulations, sidewalks, junkyards, burning, parks and recreation, along with many other items too numerous to specifically list.

 

            Although the ordinances differ from municipality to municipality, residents are presumed to know the laws of the Township or Borough, so ignorance of the law cannot be used as an excuse.  However, before enforcement, the municipal code official will frequently provide written notice to the resident of an alleged ordinance violation.

 

            In addition, when a municipality elects to create a new law, there is discussion about the topic during formal meetings of the elected officials, who would then request the municipal solicitor to draft a proposed ordinance.  There are also requirements that the ordinance be advertised publicly, prior to enactment, and at times even a formal hearing occurs to insure the public has the right to comment.  The notice of the proposed ordinance is published on at least one occasion in a newspaper of general circulation within the municipality.  The notice appears in the classified advertising section of the newspaper, under the heading of Legal Notices, so the Notices are not necessarily prominently advertised or even viewed by the average resident.  Following the advertisement, the elected officials determine whether or not to adopt the ordinance at a publicly advertised meeting.

 

            Once enacted, ordinances have the force and effect of law and can be enforced by the municipality.  Enforcement officers include police officers, code enforcement officers, and municipal zoning officers, based upon the type of ordinance that is being enforced.  These ordinances typically have penalty violations that can range anywhere from $500.00 to $1,000.00 per violation.  Such penalties are imposed by a local Magisterial District Justice following a hearing on the charges, if the Judge finds the resident guilty.

 

            These local laws have the same force and effect of any state or federal law, and have the ability to be enforced through appropriate mechanisms.  Obviously, it is important that residents of the municipality be aware of their local municipal ordinances so as not to violate those rules and risk the possibility of fines or other punishment.

 

            Charles D. Garner, Jr., Esquire, is an attorney at the law firm of Wolf, Baldwin & Associates, P.C., which maintains offices in Pottstown, Reading and West Chester.  He has significant experience in municipal representation, zoning and land use matters.  He and the firm have other diverse experience including small business representation, municipal employment negotiation and litigation, contracts and civil litigation, and estate planning and administration.  Mr. Garner can be reached at 610-323-7436 or by email to cgarner@wolfbaldwin.com.

Monday, June 2, 2014

The New State of Marriage in the Commonwealth


 
In our daily lives, most of us go about our business without a second thought as to how pervasive our laws can be.  Those of us in the legal profession perhaps have a different perspective, with a keen understanding of just how a single legal doctrine can change millions of lives.  Recently, the opinion of Judge John E. Jones, III in Whitewood v. Wolf, No. 1:13-CV-1861, 2014 WL 2058105, at *1 (M.D. Pa. May 20, 2014), provided a powerful illustration of just how far-reaching a legal decision can be.

Most people know by now that Judge Jones struck down Pennsylvania’s statute banning same-sex marriage.  But few people may have stopped to realize the vast implications of such a change.  Although the arguments both for and against same-sex marriage have been thoroughly hashed and rehashed on both sides, now that Pennsylvania effectively has same-sex marriage, Pennsylvania lawyers will spend the next few years with its many legal implications.

The most intuitive change will be in the realm of divorce law.  Now that same sex-couples can marry, it follows that they can divorce.  How will the law deal with all of the cohabitation agreements which were entered into when same-sex marriage was illegal?  What will the implications be for pensions, and for taxes?  Now it is not uncommon for a divorced wife to retake her maiden name after the divorce.  Will same-sex couples be treated any differently if they divorce?

More broadly, how will the institution of same-sex marriage impact custody law and adoption practice?  How about real estate law?  Estate planning?  Probate?  How will doctors and hospitals treat same-sex couples in medical decision making?  Will there be any difficulty now if a same-sex spouse makes a claim for fatal claim workers’ compensation benefits or for loss of consortium in a personal injury case?

What impact will these legal changes have on family formation, in the context of assisted reproduction, gestational surrogacy, and artificial insemination?  Will we now shy away from alternative family arrangements for same-sex couples who are not married?  Will there be a stigma against couples who want to have children, but who choose not to marry even though they can?

It is questions like these that shine a light on how the smallest legal changes can broadly alter the tapestry of our existence.  These questions, and their ultimate answers, draw into focus the nobility of the legal profession.  As lawyers assist all people, straight and gay, bisexual and transgender, through the twists and turns of their changing legal rights, we can be proud and humbled that collectively we shape how the law impacts our lives.  Every so often it is worthwhile to step back and look at the big picture, and to reflect on how wonderful it is that we live in a nation governed by the rule of law, where such momentous legal changes will have an impact on countless lives for generations to come.

 

Levi S. Wolf, Esquire is a shareholder in the law firm of Wolf, Baldwin & Associates, P.C. with offices in Pottstown, Reading, and West Chester.  He is the firm’s managing attorney, and focuses his practice on workers’ compensation law and family law.  Mr. Wolf can be reached at 610-323-7436 or by e-mail to Lwolf@wolfbaldwin.com.

Wednesday, April 30, 2014

GUARDIANSHIP OF AN INCAPACITATED PERSON


Many people experience having to be responsible for family members, or perhaps close friends, who have become completely or partially unable to care for themselves or to manage their finances, due to some sort of physical or mental impairment.  In Pennsylvania, such a person is referred to as an “incapacitated person.”  The legal definition of an incapacitated person is “an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he [or she] is partially or totally unable to manage his [or her] financial resources or to meet essential requirements for his [or her] physical health and safety.”

If a person is incapacitated, a Judge from the Orphans’ Court (a division of the County Court of Common Pleas) may, upon request by petition of any interested person or institution, and upon receipt of clear and convincing evidence at a hearing in court, appoint a guardian for the incapacitated person.  There are two basic types of guardianship.  One is a guardian of the estate and the other is a guardian of the person. A guardian of the estate is responsible for the incapacitated person’s finances.  A guardian of the person is responsible for the incapacitated person’s health and well-being.  The court may make a guardian’s powers either “limited” or “plenary.”  Plenary power is the right and duty to make decisions about any and all aspects of the incapacitated person’s estate or person, or both, depending on what the individual requires.  The Orphans’ Court may, when appropriate, allow a guardian only certain specific, or “limited,” powers.  For example, a limited guardian of the estate might be given the power to manage regular bank accounts and pay bills, but not to manage investment accounts.  A limited guardian of the person might be given powers to manage the personal affairs and day-to-day life of an incapacitated person, but not to make healthcare decisions.

By law, the Orphans’ Court is required to prefer limited guardianships over plenary guardianships whenever possible.  However, there are obviously many instances where severe or complete incapacity, total mental incompetence, or significant physical disability dictate the need for a plenary guardianship.

No guardian possesses the following powers, unless they are specifically and expressly authorized by the court:

1.                  to consent to an abortion, sterilization, psychosurgery, electroconvulsive therapy or removal of a healthy body organ;

2.                  to prohibit marriage or consent to divorce; or

3.                  to consent to any experimental biomedical or behavioral medical procedure or be part of any biomedical or behavioral experiment.

 Not even the court can grant the following powers to any guardian:

1.                  to admit the individual to an inpatient psychiatric facility or to any State center for the mentally retarded; or

2.                  to consent to the relinquishment of the individual’s parental rights.

In determining whether appointment of a guardian is needed and, if so, what kind of guardian and what kind of powers would be appropriate, the Orphans’ Court typically requires testimony from a treating physician, psychiatrist or psychologist to establish the nature and extent of an individual’s incapacities.  Typically, the physician or other medical professional is not required to be present in court.  Rather, such testimony is usually accepted in the form of written answers to written questions about the incapacitated person, which is signed by the individual providing the answers.  In addition, it is desirable to present testimony from family members, friends and others who have personal knowledge of the incapacitated person’s situation.

After receiving all of the evidence and testimony, the Orphans’ Court is required to determine the following:

1.                  The nature of the particular condition or disability which impairs the individual’s capacity to make and communicate decisions;

2.                  the actual extent of the individual’s capacity to make and communicate decisions;

3.                  whether guardianship services are needed at all, in light of special circumstances including the availability of family, friends or other supports to assist the individual, and whether there already exists such documents as a sufficient durable power of attorney, advanced directive for healthcare, living will or useful trusts; and

4.                  an appropriate duration for any guardianship.

The Orphans’ Court is permitted to appoint a guardian only when it finds that a guardianship is the least restrictive alternative available to meet the needs of the incapacitated person.

While the Orphans’ Court is always available, it should be emphasized that, in many, many cases, preparation of proper estate planning documents, before the incapacitated person actually becomes incapacitated, can allow caregivers to exercise most necessary authority without the need for a guardian to be appointed.  These documents include durable powers of attorney, advanced directives for healthcare and living wills.  Proper planning hopefully makes it unnecessary to petition the Orphans’ Court for guardianship, doing away with the time, expense and potential aggravation that goes along with such proceedings.

Notwithstanding prior preparation however, there is always the possibility that an existing power of attorney or other advance directive is poorly drafted or doesn’t clearly authorize a particular power necessary to help the incapacitated person.  It is also possible that the agent under the power of attorney is unable or unwilling to act, or is acting to the detriment of the incapacitated person.  In either of these situations, it may still be necessary to obtain the appointment of a guardian.  This is because a guardian can be granted the powers necessary to properly assist the incapacitated person.  The Court or the guardian would also have the power to revoke any prior power of attorney.

If you have not prepared your own estate planning documents, or if you know of someone else who would be well advised to do so, or if you have any question about your existing documents, you should seek the advice and counsel of a competent estate planning attorney.

Thomas A. Fosnocht, Jr., Esquire, is an attorney with the law firm of Wolf, Baldwin & Associates, with offices in Pottstown, West Chester, and Reading.  Mr. Fosnocht concentrates his practice in wills, estates, probate, Orphans’ Court, and real estate, and litigation related to such matters.  He may be reached at 610-323-7436 or by e-mail to tfosnocht@wolfbaldwin.com. 

Thursday, April 24, 2014

Divorce - A House Divided

In a Pennsylvania divorce, the courts use what is known as an equitable distribution model to split marital property.  The equitable distribution model seeks to equitably distribute, rather than evenly distribute, the joint assets and debts acquired throughout the duration of a marriage.  More specifically, equitable distribution covers the time frame from the date of marriage until the date of separation.  The date of separation is the date when the parties are living apart or the finances have become separate, in short, when the parties no longer hold themselves out as husband and wife.  The “date of separation” relates most importantly to equitable distribution, and also starts certain timelines for when a couple can be divorced in a no-fault divorce, but it has no meaning other than that.  Often times we receive phone calls from prospective clients inquiring as to a “legal separation”;  to be clear, that term has little meaning in Pennsylvania.

In the majority of divorces the marital residence is one of the biggest assets.  It is also typical that the parties purchased the house during the marriage and have both names on the mortgage and deed.  Divorce clients frequently first ask “who will get to keep the house?” followed closely by “how do I get my spouse out of the house?”  The latter question is easier to answer.
In Pennsylvania, there are two legal avenues by which a divorcing party can forcibly remove his or her spouse from the marital residence.  The first is a Protection from Abuse (PFA) petition.  To be successful in this route, the petitioning spouse must show that he or she has reasonable fear of imminent bodily harm.  A PFA Order evicts the offending spouse from the house.  The primary function of a PFA is for safety, a PFA should not be utilized for the sole purpose of evicting one spouse from the house.

The second way in which to remove a party from the marital residence is a Petition for Exclusive Possession.  In order to have success, the petitioning spouse must demonstrate that other spouse is not contributing to the household and  in fact that the spouse is creating an intolerable living environment.  The threshold burden is considerable, as the court will be very hesitant to put one spouse out on the street.  In most cases, not surprisingly, the parties are simply unhappy living in the same house with a deteriorating marriage and there is no legal cause to support eviction from the house.  This leads back to the first question set forth above, “who will get to keep the house?”
In the beginning of the divorce prior to litigation, ideally the answer should be decided upon between the parties.  Of course, if the parties cannot agree, then a Judge will ultimately decide for them.  Deciding whether to retain the house is a complicated decision.  There are many reasons why a client would want to retain the house, foremost of which is usually children.  It is usually the primary caregiver who wants the house so that he or she can reside with the children in a house to which they are accustomed.  Of course, today custody arrangements might easily be 50/50,  and often both parents are employed on a full time basis.  Deciding who is the primary caregiver may not be so simple.  Depending on the age of the children, their preference as to where and with whom to live may play a role.

Regardless of whether there are children to consider, another significant factor is the parties’ finances.  A budget which outlines the income and expenses of each party, including the expenses of maintaining the household, is helpful.  If a party wants to retain the house, then he or she has to be able to afford it.  Not only does the person keeping the house have to be able to afford the monthly expenses, but also it is likely that the other party will insist that the party keeping the house refinance the mortgage into his or her own name.
The valuation of the house, especially in today’s real estate market, is another potential sticking point.  Often experts will be needs to give opinions as to the home’s value.  It makes sense to have a list of a few local appraisers and let the parties or their attorneys select one.  Another alternative is for each party to hire an appraiser and agree to the average of the values found by the appraisers.  The next step is to meet with a lender to determine eligibility for re-finance.  Should the re-finance be approved, the final step is to “buy-out” the party who will be vacating the house.  If neither party qualifies for a re-finance in their name alone sometimes the parties agree that both names will remain on the mortgage and deed so that the children can complete high school while one spouse vacates.  There are legal safeguards which should be put in place to protect each party, to ensure that the mortgage continues to be paid and the house does not fall into disrepair.

Another alternative is to sell the house.  The parties should ideally agree on a real estate and the asking price.  Upon the sale of house, the profits would be equitably (but not necessarily evenly) divided. 
Decisions about what to do with the house in a divorce can be difficult and emotionally charged.  Regardless of which decision is made, it is important to thoroughly understand the financial and legal implications.  In time, you might realize that home is where the heart is, and not inside a particular house.

Kristen Doleva-Lecher, Esquire is an attorney in the law firm of Wolf, Baldwin and Associates, P.C..  She practices primarily out of the Reading office; the firm has additional offices in Pottstown and West Chester.  She is a certified mediator and practices in the area of family law.  She may be reached by telephone at 610-374-2400 or by e-mail to kdoleva@wolfbaldwin.com.

Monday, April 14, 2014

Illegals Receiving Workers’ Compensation – Is that Legal?


Our national political conversations are flooded with talk of immigration reform.  The fact is that many undocumented aliens are working here with us every day.  These people are no more immune to work injuries than citizens or legal resident aliens.  What rights does an illegal worker have when he or she suffers a work injury in Pennsylvania?

The law in this area has been adapting and changing over time.  In 2002, the Pennsylvania Supreme Court in Reinforced Earth Company v. Workers’ Compensation Appeal Board (Astudillo), 570 Pa. 464, 810 A.2d 99, held that a claimant’s status as an undocumented alien worker does not preclude him from receiving total disability benefits under the Workers’ Compensation Act. 

Normally, a workers’ compensation carrier or employer seeking to suspend a claimant’s wage loss benefits in Pennsylvania must show demonstrate: (1) evidence of a change in medical condition and (2) evidence that there is an available job the claimant is capable of performing that would pay wages equal to or greater than his pre-injury wage, or show job availability through a labor market survey.  Most recently, our Commonwealth Court in Ortiz v. Workers’ Compensation Appeal Board (Rodriguez) issued another pronouncement on the benefits available to illegal aliens.  In Ortiz, the Commonwealth Court found that to suspend the weekly wage benefits of an unauthorized alien, an employer need only demonstrate that a claimant’s medical condition has improved enough to work at some job, even one with restrictions.  The employer need not show job availability, because the irrebuttable presumption is that the illegal alien cannot work anywhere (even if he finds another job and is actually working at lesser wages), and thus the wage loss is due to his status as an illegal rather than the effects of the work injury.

One might wonder why an illegal alien is entitled to any wage loss benefits at all.  Firstly, the Pennsylvania Workers’ Compensation Act itself does not distinguish between legal and illegal workers.  Employees are defined as including “[a]ll natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer…”  77 P.S. § 22.  All injured workers in PA, for instance, are entitled to reasonable and necessary medical treatment which is causally related to their injuries.  One reason why total disability wage loss benefits are available to injured illegal aliens is that disallowing any disability compensation to an unauthorized worker might cause employers to actively seek out and hire illegal workers so as not to have to pay them workers’ compensation benefits if they are injured.

Interestingly, the courts have sanctioned the suspension of partial disability benefits from illegal aliens even when they have in fact returned to the workforce and are earning less than their preinjury wages due to the effects of the work injury.  Where a documented worker would be entitled to a partial disability benefit in that circumstance, an undocumented worker is not.

Some readers will bristle at the idea of providing any kind of workers’ compensation benefits to illegal aliens.  But remember that workers’ compensation laws provide an exclusive remedy to injured workers, and workers’ comp is a shield against personal injury lawsuits targeting the employer.  Without workers’ compensation coverage, an undocumented worker might be able to sue the employer for negligence instead of being restricted to the remedies of the Workers’ Compensation Act.

Pennsylvania Workers’ Compensation is a specialized area of practice, and is filled with unexpected twists and turns.  Employers are typically provided lawyers by their insurance companies who only practice workers’ compensation law.  Injured workers, legal or illegal, should always consult experienced workers’ compensation claimant’s attorneys when they have had a work injury.

Levi S. Wolf, Esquire is a shareholder in the law firm of Wolf, Baldwin & Associates, P.C. with offices in Pottstown, Reading, and West Chester.  He is certified as a specialist in the practice of workers’ compensation law by the Pennsylvania Bar Association’s Section on Workers’ Compensation Law as authorized by the Pennsylvania Supreme Court., and focuses his practice on workers’ compensation law and family law.  Mr. Wolf can be reached at 610-323-7436 or by e-mail to Lwolf@wolfbaldwin.com.

Tuesday, April 8, 2014

In Pennsylvania, Who Owns the Engagement Ring?

By Matthew T. Hovey
Wolf, Baldwin & Associates, P.C.

In Pennsylvania, if an engagement to be married is ended, who owns the engagement ring, the giver or the receiver?  Does it matter who ended the engagement?  Does the reason why matter?  What about who is at fault?  These are questions more often raised over drinks at a cocktail party amidst laughter and chiding than during a client consultation.  When it is raised during a client consultation, however, the answer can have serious consequences.

Consider if the engagement ring is an expensive family heirloom.  For example, imagine the engagement ring is a one hundred year old Tiffany & Co. ring with dazzling stones.  This is the same ring that your great-grandfather offered to your great-grandmother on bended knee.  It is the “crown jewel” of your family, and because both of your great-grandparents are now deceased, your parents made the ring available for your use when you find the person with whom you want to share the rest of your life.  Now imagine, with great pride and sentiment, you, like your great-grandfather before you, get down on bended knee and offer the ring along with a proposal of marriage to your significant other.  She then affectionately accepts, you set a date, and begin the task of planning the wedding.  Unfortunately, before you both make it down the aisle, something happens and the wedding is called off.  Or, in the alternative, you both marry but years down the road you divorce.  Now the questions raised in this article are no laughing matter and whether the ring is returned impacts your entire family.

In 1999, in the case Lindh v. Surman, 742 A.2d 643 (Pa. 1999), the Supreme Court of Pennsylvania definitively answered these questions.  As way of background, Rodger Lindh, described as a “divorced, middle-aged man,” and Janis Surman, described as “the object of Rodger’s inconstant affections,” were engaged.  When Rodger proposed, he presented Janis with a diamond engagement ring which he purchased for $17,400 (after he allegedly received a discount for being a “good customer” of the jeweler).  Subsequently, “discord developed,” which led Rodger to break the engagement and ask for the return of the ring.  Janis obliged.  The story continues, however, as Rodger then proposed for a second time, which Janis also accepted.  Months later, Rodger again broke the engagement and requested return of the ring.  This time Janis refused.  Legal action followed shortly thereafter and the case went all the way to the Supreme Court of Pennsylvania.

In the Lindh decision, the Supreme Court reaffirmed a prior holding that an engagement ring is a conditional gift to the receiver.  Quoting the prior opinion, the Court explained that a “gift given by a man to a woman on condition that she embark on the sea of matrimony with him is no different from a gift based on the condition that the donee sail on any other sea.  If, after receiving the provisional gift, the donee refuses to leave the harbor – if the anchor of contractual performance sticks in the sands of irresolution and procrastination – the gift must be restored to the donor.”  Any transfer of ownership of the ring, therefore, is conditioned upon the actual marriage of the parties.

The Supreme Court then clarified that the reason why the parties never married is irrelevant.  In other words, the law does not care who initiated the termination of the engagement or whose fault it is that the engagement was called off.  To help justify its holding, the Supreme Court quoted a decision by the Kansas Supreme Court which explained that, “by way of illustration, should courts be asked to determine which of the following grounds for breaking an engagement is fault or justified? (1) The parties have nothing in common; (2) one party cannot stand prospective in-laws; (3) a minor child of one of the parties is hostile to and will not accept the other party; (4) an adult child of one of the parties will not accept the other party; (5) the parties’ pets do not get along; (6) a party was too hasty in proposing or accepting the proposal; (7) the engagement was a rebound situation which is now regretted; (8) one party has untidy habits that irritate the other; or (9) the parties have religious differences. The list could be endless.”  As a result, the test for ownership is simple.  Any transition of ownership is contingent only on the marriage of the couple and other factors are not given any consideration.

Now that we know that the giver is entitled to the return of the ring after the engagement is ended, the next question is how might the giver secure the return of the ring?  If non-legal options fail (which include a straightforward request for the return of the ring), then the giver will need to file a replevin action against the receiver.  Replevin is a legal action that dates back to old English law.  Replevin is utilized to recover the possession of personal property (also known as “chattels”) wrongfully in the possession of other people.  To initiate a replevin action, the giver will need to sue the receiver by filing a complaint that provides a description of the engagement ring, its value, its location (if known), and the “material facts upon which [the] claim is based,” which will include, at minimum, the circumstances of the proposal and the fact that the engagement was terminated prior to a marriage.  In Pennsylvania, within the replevin action, under certain circumstances, the giver may petition the court to have the sheriff seize the engagement ring during the pendency of the action and the ring will either be returned to the giver or held by the sheriff until the matter is resolved.  Normally, to secure a seizure prior to the conclusion of the case, the giver will need to demonstrate that the value of the engagement ring and the giver’s interest in the ring will be adversely affected by the continued possession and use of the receiver.  Or, in the alternative, the giver must show that the receiver (or any other person in possession of the engagement ring) will conceal, dispose, encumber, or waste the engagement ring, or that person may remove it from the county where the action was filed.  Ultimately, the court will determine who is entitled to possession of the engagement ring and may award special damages depending on the circumstances of the case.

On the other hand, once the parties wed, the condition is satisfied and ownership is transferred.  Absent a prenuptial agreement that states otherwise, the engagement ring becomes a “gift between spouses,” and, as a result, according to 23 Pa.C.S. § 3501(a)(3), is marital property now owned by both spouses.  The giver is no longer automatically entitled to the return of the ring.  Rather, if the parties later divorce, then, absent an agreement between the parties, the ring will be subject to equitable distribution by the court.  There are no guarantees in equitable distribution and the court may consider and weigh a variety of factors, including the length of the marriage, in determining how to award ownership of the engagement ring.  Under certain circumstances, the giver may actually need to buy-out the receiver in order to secure its return.  As a result, to avoid later complications, it is prudent to address an engagement ring that is a family heirloom, like the one described in the beginning of this article, or of substantial value, in a prenuptial agreement.

Lastly, it must be noted that it is unclear how the Lindh case may apply to same-sex couples because, at the time of the writing of this article, same-sex marriages are prohibited in Pennsylvania.  While we might anticipate that the law of conditional gifts would still apply to same-sex couples, the giver should be particularly cognizant of the circumstances of the proposal.  It may be prudent for the giver of the engagement ring to be clear that the ring is offered contingent on a particular event occurring (marriage, civil union, individualized ceremony, etc.).  Otherwise, a ring simply offered or a ring offered in exchange for a promise to “spend the rest of our lives together” may fail to establish a conditional gift and result in an absolute transfer of the ownership of the ring.  Likewise, because same-sex couples are not presently subject to the marital laws of Pennsylvania or equitable distribution, the giver of the engagement ring should understand that once the condition is satisfied (for example, if the condition is to travel to New York or New Jersey and be married in that state, and that event occurs), then the transfer of ownership to the receiver will likely be absolute and not shared jointly as “marital property.”

If you have any questions regarding engagement rings, you should contact an experienced and knowledgeable attorney for a consultation.  An experienced and knowledgeable attorney can assist with safeguarding an engagement ring or securing its return through either a replevin action or equitable distribution.  Such protective measures are prudent, and may be invaluable, especially if the engagement ring is a family heirloom.



Matthew T. Hovey, Esquire recently joined the law firm of Wolf, Baldwin & Associates, P.C., which has offices in Pottstown, Reading, and West Chester.  He practices in the areas of family law, municipal law, personal injury law, consumer protection law, business representation, and employment law.  He may be reached by telephone at 610-323-7436 or by e-mail to mhovey@wolfbaldwin.com.


 

Monday, February 24, 2014

SO YOU THINK YOU’VE BEEN WRONGFULLY TERMINATED?


On an almost daily basis, one prospective client or another informs me that he or she has been wrongfully terminated from a position of employment, and asks me if I can help.  Many of these workers tell me they had been faithfully employed by the same employer for years, even decades.  Some report that they have been fired for an insufficient reason or for patently incorrect reasons, or for no stated reason at all.

It is often difficult to hear these stories, and impossible not to empathize, particularly for workers in their 50’s and 60’s who (let’s face it) are going to have a difficult time restarting their careers.  Unfortunately though, and far more often than not, it is my sad duty to advise them that, apart from helping them with unemployment compensation and perhaps negotiating the details of a settlement package, there is little else that I can do for them, however unfair it may seem.

The question is why.  The answer is the Pennsylvania doctrine of “at will” employment.  Under the doctrine of “at will” employment, an employer can terminate an employee’s employment for any reason or for no reason at all, even an unfair or inaccurate reason, so long as it is not an illegal reason.  Illegal reasons for termination include discrimination on the basis of a protected status (such as race, religion, gender, age (over 40), disability, etc.) and discrimination on the basis of protected activity (such as requesting or taking leave under the Family and Medical Leave Act, filing a Workers’ Compensation claim, whistleblowing (in narrowly defined circumstances), etc.).  However, in the absence of discrimination on the basis of a protected status or protected activity, and in the absence of an employment contract prohibiting termination except for specified “cause”, an employer can fire at will, regardless of the employee’s years of service and regardless of the adequacy of fairness of the reasons for termination.

There is also an exception to the “at will” employment doctrine known as the “public policy” exception.  Generally, this exception makes it unlawful for an employer to fire an employee for refusing to commit a crime or for complying with a legally imposed duty (such as serving jury duty) or when specifically prohibited from doing so by a controlling statute.  Thus, under Pennsylvania law an employee may have a claim for wrongful discharge if he or she is terminated for filing a workers’ compensation claim.  But beyond these rather clear-cut cases the public policy exception has only limited application. 

It is arguable that the “at will” employment doctrine is a legal anachronism, not in keeping with the consumer protection and employee protection laws enacted and implemented across America over the last half century.  On an individual level the obvious unfairness that flows from the “at will” employment doctrine can work significant injury to the lives and livelihoods of employees and their families.  It is also arguable, and to some degree unavoidably true that on a larger level, the “at will” employment doctrine may actually promote employment.  If an employer could not fire “at will”, that employer would be far less likely to hire an employee in the first place for fear that the employer could never thereafter get rid of that employee.

As a practical matter, the “at will” employment doctrine is not entirely without limits.  Although a Pennsylvania employer can fire an employee for any reason or no reason at all, so long as it is not an illegal reason, if an employer actually does fire an employee for no reason at all or for a patently ridiculous reason, that termination almost inevitably gives rise to an inference that there must have been an illegal reason at play.  That is, if the stated reason for firing makes no sense, the logical conclusion is that the stated reason was nothing but a pretext for an unstated proper reason.  The silver lining for such fired workers is that even if they have no wrongful termination claim, they likely do have a claim for unemployment.