Wednesday, April 30, 2014


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 

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

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

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