Wolf, Baldwin and Associates, P.C.

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

2012-01-06T09:01:00.000-08:00

LOCAL LAW FIRM TO REMAIN IN POTTSTOWN

Family maintains Borough presence for over 100 years

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

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

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

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

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

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

Happy New Years! Please celebrate responsibly

2011-12-31T14:56:00.000-08:00

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

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

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

2011-12-08T09:26:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

2011-11-30T20:24:00.001-08:00

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

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

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

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

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

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

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

Violation of Public Policy

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

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

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

Illusory Coverage

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

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

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

Preparation for Divorce in Pennsylvania

2011-09-26T20:42:00.000-07:00

In Major League Baseball, a respectable batting average exceeds .300. Currently Shane Victorino of the Phillies is averaging .315. For all you non-baseball fans, this means he will get a hit a few more than three out of the ten times he’s up to bat. Unfortunately in our society divorce has a higher batting average so to speak – statistically about five out of ten first marriages will end in divorce.

The emotional toll of divorce is of obvious and immediate concern to anyone facing that prospect. Almost as significant as the emotional toll is the impact a divorce will have on one’s financial situation. Obviously each divorce, like each marriage, is unique; however there are ways in which one can prepare and educate him- or herself when facing divorce.

There are two key terms that are often heard in association with divorce: equitable distribution and alimony. Pennsylvania is an “equitable distribution” state, as opposed to a “community property” state. This means that all marital assets and debt will be distributed equitably (but not necessarily evenly) to each spouse in the event of dissolution of marriage, based on a number of factors spelled out in the Pennsylvania divorce law. Examples of assets which are frequently subject to equitable distribution are:

Homes and other real estate
Retirement plans
Bank Accounts
Stocks, bonds, and mutual funds
Personal property such as home contents, antiques or collectibles
Business interests
Vehicles
Inheritances
Life Insurance Policies
Stock Options
Tax refunds
Personal injury or workers’ compensation settlements

Pennsylvania divorce lawyers engage in a careful analysis of what is and what is not “marital property” when attempting to determine how any given marital estate should be split. In general, marital property includes any assets acquired by a couple between their date of marriage and date of separation, including the increase in value during the marriage of premarital property. Many assets can be excluded from consideration, however, and any particular situation should be reviewed with an experienced family law attorney.

In addition to equitable distribution of assets, divorcing parties frequently bring claims for spousal support, alimony pendente lite, or temporary or permanent alimony. In general, spousal support can be claimed by a lower-earning spouse while the parties are separated, and alimony pendente lite (“for the course of the litigation”) can be awarded when one party has actually filed for divorce. Temporary or permanent alimony can be awarded for a time after the parties’ divorce is final.

The amount of spousal support or alimony is determined by many factors spelled out in the Pennsylvania divorce and support laws. The earnings and earning capacities of the parties are the most significant factors used to determine both entitlement to and the amount of a support award. Spousal support and alimony pendente lite awards, if the parties cannot agree, must be litigated at first in the county Domestic Relations offices. Typically, the Domestic Relations conference officer at a support hearing uses paystubs, W-2 forms or 1099 forms as well as tax returns to determine the income of the parties. Several factors come into play as to what qualifies as income and sometimes parties are not as forthcoming as they should be in disclosing their earnings, but discovery tools are available to litigants to expose required financial information. Occasionally expert testimony is needed to help the court determine earnings or earning capacity.

Alimony, unlike spousal support, is determined either by the agreement of the parties or by the master or judge as part of the divorce process. In determining an alimony award, a main question is whether the party seeking alimony is incapable of self-support through appropriate employment. Other factors include the ages and health condition of the parties, the expectancies and inheritances of the parties, the length of the marriage, the standard of living of the parties established while married, the relative education of the parties, and relative needs, assets and liabilities of the parties.

It may be helpful in the event of an impending divorce to have access to copies of pertinent financial information so that the process of proving assets and income becomes easier. Some of these documents may include:

Bank account, brokerage, and retirement account statements
Recent tax returns
Recent paystubs
Real Estate appraisals
Insurance appraisals
Life Insurance policies
Health insurance policies and cards
Wills and Powers of Attorney
Trust documents
Information regarding both spouses’ accountants or tax preparers
The approximate family income for the previous year

As mentioned above, no divorce is the same. If you find yourself contemplating divorce, remember that your situation may not be at all similar to that of your neighbor or co-worker. A long and expensive divorce can and does happen, but today many people choose to settle their issues on their own or engage in voluntary mediation or arbitration to resolve their disputes, rather than going to court. Litigation is costly on both parties in terms of time, money, and emotional strain. On the other hand, working through a divorce amicably can save you time, money, and stress. Settling a divorce without litigation or court involvement offers the parties more control in their negotiations. Agreements reached outside of court can be memorialized and ordered and enforced by the court

We all wish that batting averages will someday be higher than the divorce rate in Pennsylvania. However, with careful planning and good advice from experienced divorce counsel, you can avoid one of life’s curveballs, and reach home safely.

The lawyers at Tri-County Family Law and Wolf, Baldwin and Associates, P.C. are a general practice law firm in Pottstown, PA founded by Jack F. Wolf in 1972. You can visit the family law website to read more about Divorce, Child Support, Spousal Support, Protection from abuse and Custody issues.

Are You Misclassifying Your Employees As Independent Contractors?

2011-08-12T14:50:00.000-07:00

On October 13, 2010, former Governor Ed Rendell signed into law House Bill 400, establishing the Construction Workplace Misclassification Act (CWMA). This new law went into effect on February 10, 2011, and will have a dramatic impact on all construction companies utilizing independent contractors. For years a much-debated issue in Workers’ Compensation, employment, and tax law has been the treatment of workers as independent contractors. This new law will further shape whether workers are considered employees or independent contractors.

Generally, if a worker is an independent contractor, workers’ compensation benefits are not available for any injuries sustained on the job. The independent contractor must have his or her own insurance. The practical effect of this is that many employers would classify, or misclassify, their workers as independent contractors, when they were actually employees. By calling workers independent contractors, employers can avoid the cost of carrying expensive workers’ compensation benefits, and can be kept out of long and costly litigation over work injuries. This practice is especially prevalent in construction businesses, such as roofing and general contracting, where workers compensation insurance is prohibitively expensive, and injuries are often quite severe and debilitating.

For many years, the workers’ compensation courts have muddled by with a relatively vague test which basically came down to how much control an employer had over a worker to determine whether that worker was an employee or an independent contractor. However, under the CWMA, an individual who performs construction work may be considered and paid as an independent contractor only if:

The individual has a written contract;

The individual is free from control or direction over performance of such services, both under the contract and in fact; or

The individual is customarily engaged in an independently established trade, occupation, profession, or business.

Thus, a written contract seems to be essential; however, this aspect alone certainly would not suffice. For years, many employers have simply written up Employment Agreements which name employees as independent contractors. However, the addition of codified degrees of control over services and the addition of an “individual (who) is customarily engaged in an independently established trade,” certainly clarifies things even further.

Before the CWMA, employers seeking to be free of the liability and costs of workers’ compensation insurance could attempt to do so by simply having each worker sign a contract labeling each worker as an independent contractor. However, under the new law there must be a definitive lack of control over a true independent contractor, and there would likely need to be a showing that this worker is not simply performing a task for the employer, but rather, that the worker performs this task independently as part of an established trade or business. Thus, a showing that the worker performs the same task for numerous employers would be an ideal way to meet the above requirement.

With respect to the third criteria above, the CWMA states that an individual is customarily engaged in an independently established trade, occupation, profession, or business only if:

The individual possesses his/her own tools;

The individual's arrangement is such that he/she can realize a profit or suffer a loss as a result of the individual’s performance of services through a business in which the individual has a proprietary interest;

The individual maintains a separate business location; or

The individual previously worked as a bona fide independent contractor (as defined by the CWMA) or holds him/herself out to the public as a bona fide independent contractor.

These requirements basically codify the factors that workers’ comp lawyers have used for many years. When workers supply their own tools, the typical conclusion is that they are not just employees, but outside contractors, who clearly possess a skill and specialized knowledge that requires tools to perform that service. For example, an electrician who is hired by a contractor to wire a home and comes with his own tools to do so is clearly an independent contractor. However, an electrician who wires a home with tools provided by the contractor would certainly be more likely to be considered an employee.

The second requirement regarding profits or losses seems to indicate that while an employee gets paid for a job whether performed well or not, an independent contractor would be more likely to lose money on a poorly performed job, or conversely make more of a profit on a job performed well and under budget.

Under the CWMA, there are many hurdles to clear in order to establish that a worker should be classified as an independent contractor. The overwhelming majority of workers in the construction industry in Pennsylvania who are currently classified as independent contractors will now be considered employees. Further, the failure to withhold Federal or State income taxes or pay unemployment compensation contributions or workers compensation premiums will not be considered in determining whether an individual is an independent contractor.

Under the CWMA, the consequences for misclassifying an individual as an independent contractor are severe. Administrative penalties may be up to $1,000.00 for the first violation, and up to $2,500.00 for each subsequent violation, and each misclassification of a worker is considered a separate offense. In addition, violations of the CWMA can lead to a "stop work" Order requiring the cessation of work by misclassified individuals within 24 hours, individual liability, and criminal sanctions. Thus, it is clear the Pennsylvania legislature means business, and plans to stomp out any abuse of the classification of workers as independent contractors to avoid the liability under the Workers’ Compensation Act. Questions about this new law and its impact on workers’ compensation or employments issues should be directed to competent counsel.

Estate Planning Under New Tax Law

2011-06-30T17:27:00.000-07:00

Congress recently enacted a new law which radically alters estate tax law, but only for a period of two years. The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, signed into law on December 17, 2010 increased the amount which can pass to heirs Federal Estate Tax free to $5,000,000 per spouse, and established a top estate tax rate of 35%. This is an increase from the $3,500,000 Exemption Equivalent in 2009, and a big leap from the $1,000,000 Exemption Equivalent that was set to become law on January 1^st, had Congress not acted.

Additionally, surviving spouses can now utilize any unused amount of their deceased spouse’s $5,000,000 if certain elections are made on a timely estate tax return. Again, this new “portability” provision seems like a great planning opportunity, but it also expires December 31, 2012, so unless both spouses die within the next two years, it could disappear.

While many families may now feel their estates are “untaxable,” the new law presents the need for estate plan reviews, despite the perceived tax relief.

It must be stressed again that the law as it is written will expire on December 31, 2012 if no additional Congressional action is taken. Without Congressional action, the exemption equivalent will be reduced to $1,000,000 with a top tax rate of 55%. Considering the uncertainty of the future of tax legislation, it is more important than ever to have flexibility in your estate plan.

If you have an estate that is less than $1 million, you should consider having your plan reviewed. You probably don’t need complicated plans with trusts and formulas. You don’t want to place the bulk of your assets in a complicated trust that is expensive to administer, and which ultimately offers no tax advantage. However, if you have assets less than $1 million, you may still need planning to address insurance ownership, guardianships, powers of attorney, medical directives, and other matters.

Many clients with estates between $1 million and $5 million have current wills that are written as an A/B trust structure wherein assets in the amount of the exemption equivalent are allocated to a credit shelter trust. Assets placed in this trust, as well as any appreciation, are generally not subject to estate tax upon the death of the second spouse. During the surviving spouse’s lifetime, he or she is entitled to the income of the trust with discretionary distributions of principal in the judgment of the trustee. For a decedent with an estate value of less than $5 million and a surviving spouse with limited assets of his or her own, using a formulaic credit shelter trust may restrict the surviving spouse’s use of these assets.

Conversely, the Generation Skipping Transfer Tax Exemption for 2011 and 2012, while also $5 million, is not portable. If couples do not make GST transfers during their lifetimes, and rely on portability by passing all property outright to the surviving spouse, GST tax sheltering opportunities may be missed.

Also, a credit shelter or family trust may be beneficial to families in the event of a widowed spouse remarrying. The predeceased spouse controls the disposition of the trust, and may wish to protect the interests of his or her children in the case of remarriage. The trust also provides creditor protection for the beneficiaries, and in Pennsylvania can continue in perpetuity without limitation.

Those who wish to have more flexibility may choose to utilize a disclaimer trust. With a disclaimer trust, a married couple’s will or revocable living trusts leave the deceased spouse’s entire estate to the surviving spouse. The family trust is funded only if the surviving spouse then disclaims (refuses) part of the deceased spouse’s estate. This enables the surviving spouse to decide how much to keep outright (to be taxed at the second death) and the amount to be allocated to the family trust (which is shielded from estate tax at the second death).

In making an informed decision to disclaim and how much to disclaim, one must examine the size of the combined estate, the surviving spouse’s age and health (which impacts the spouse’s needs for funds), whether minor children will be beneficiaries of the family trust, the potential appreciation of the assets not disclaimed, and the implication of Pennsylvania inheritance taxes (currently 4.5% for transfers to children, but can be as high as 16% for transfers to certain beneficiaries).

In addition, the actual disclaimer must meet certain legal and filing requirements, and the surviving spouse must not accept any benefits from the assets disclaimed before filing the disclaimer.

Business owners should also keep in mind that while the new tax legislation freezes the current 15% maximum capital gains tax rate through 2012, unless Congress acts to change the law, in 2013, long term capital gains will increase to a maximum of 20% with an additional 3.8% in Medicare tax on all capital gains income. With interest rates currently remaining historically low, it is a great environment to be considering a combination of gifting and business succession strategies such as sales to defective grantor trusts. If structured properly, business owners can receive income from these trusts for life, while passing business interests onto family members outside of the taxable estate.

Although the high Exemption Amounts and low rates seem to simplify and eliminate the need for estate planning, the reality of the situation is that what will happen in two years is anyone’s guess. The current law provides numerous reasons to review your current estate plan with your professional adviser and make sure you don’t miss out on this temporary window of opportunity to transfer wealth and reduce tax liability.

Levi Wolf named to Pennsylvania Rising Stars 2011

2011-06-13T05:52:00.000-07:00

Levi Wolf of Wolf, Baldwin and Associates has been named to the Pennsylvania Rising Stars of 2011 by Superlawyers!

Mr Wolf is licensed to practice before all Pennsylvania courts and the United States District Court for the Eastern District of Pennsylvania. He is a full member of the Montgomery County Bar Association and an Associate Member of the Berks County Bar Association. Mr. Wolf is also a member of the Pennsylvania Bar Association, where he was the former Treasurer of the Solo and Small Firm Practice Section. He has lectured at the PBA Bar's Solo and Small Firm Practice Section Retreat and numerous Continuing Legal Education seminars through the Pennsylvania Bar Institute.

Levi S. Wolf

rated by Super Lawyers

visit superlawyers.com

Wolf, Baldwin and Associates, PC announce the addition of our new associate Beth Silverman

2011-05-31T15:10:00.000-07:00

Beth Silverman was born in Pittsburgh, Pennsylvania, and grew up in Annville, Pennsylvania where she attended Annville-Cleona High School and the Lawrenceville School, from which she graduated in 1997.

Ms. Silverman attended Gettysburg College as an English Literature major. She graduated cum laude with a Bachelor of Arts in English in 2001. Following her undergraduate work, she attended Villanova University School of Law, where she served as President of the Sports and Entertainment Law Society, and earned her Juris Doctor in 2004. She continued her legal studies at Villanova?s Graduate Tax Program and earned her LL.M in Taxation and a Certificate in Estate Planning in 2006.

Ms. Silverman was admitted to practice in Pennsylvania in 2005. Upon completion of her Graduate Tax Program, she served as in-house counsel for Valley Forge Financial Group where she designed complex estate plans for high net worth and ultra high net worth clients.

Ms. Silverman spends her free time enjoying the company of her husband and two dogs, reading, and spending weekends in the mountains with her extended family.

Beth R. Silverman is one of Wolf Baldwin & Associates, P.C.'s lawyers in West Chester. Other Pottstown lawyers include Jack F. Wolf,Bruce L. Baldwin, Levi S. Wolf, Daniel E. McCabe, Susan J. Vandegrift, and Kristen Doleva-Lecher.

Estate Planning for Pets

2011-04-29T16:32:00.000-07:00

Pets are a beloved part of the family; have you thought about what will happen to them in the case of your disability or death? You probably have created a Will or Trust that provides for your family, but have not included your pets in those documents. The good news is that in addition to being able to provide for someone to receive your pet as a gift in your Will, in 2006 Pennsylvania became the thirty-second state to enact a Pet Trust statute, allowing for the creation of a Trust by Will or during lifetime to care for pets owned during your lifetime.

Because animal law is a relatively new concept, and one that is even newer to estate planning, many people are only aware of pet planning through sensational reports like the story of Leona Helmsley who left $12 Million in trust to her dog, Trouble. It may seem like only the rich would take such steps to provide for the care of their pets, but pet estate planning is gaining popularity across the United States where 44 states currently have pet trust statutes enacted.

Prior to 2006, one of the risks in leaving money outright to a beneficiary to take care of a pet was that the beneficiary could take the money, and give up or euthanize the pet. Family and friends can be very well meaning, but simply incapable or unwilling to care for the pet of a deceased friend or loved one. In Pennsylvania, a pet is considered property, and if no one is willing or able to take care of it, it becomes subject to the (sometimes very lengthy) probate of the Will, the same as a piece of furniture. Further, since a Will is only effective upon death, what would happen to the pet should its owner become disabled and no longer able to care for it? The new law may have the answers.

Pennsylvania adopted the Uniform Trust Act in 2006, and with it adopted standard provisions for establishing statutory trusts for the benefit of pets. This can be done within the owner’s Will, or as a standalone Trust. It is a very simple provision that allows for the basic funding of a Trust with only as much as is reasonably needed to care for the pet or pets, and does not require the owner to direct how the funds should be spent or what care is desired for the pet. If the court feels that the Trust has been overfunded, it will adjust the amount contributed and pass the rest through the owner’s estate according to his or her Will. The Trust may be overseen by a person named in the document, or if there is none, one may be appointed by the court. The Trust will terminate upon the death of the last pet for which the benefit of the trust was created.

Another form of the pet trust, the traditional pet trust, gives the pet to a trustee, and names a caregiver as a beneficiary to receive funds from the Trust which are to be spent for the benefit of the animal. Because the actual beneficiary is a human, he or she has power to enforce the Trust provisions, and it avoids any problems related to making gifts to non-humans. These Trusts may also provide further assurance that the owner’s wishes will be carried out as planned because they can contain more specific instructions than the typical statutory trust. Naming a trustee also further protects the animal because there will be someone to oversee the care and spending by the caregiver. Like the statutory trust, the traditional pet trust will terminate upon the death of the pet. The pet owner should designate who will receive the remaining property in the Trust at that time. Usually, the owner will select a charity and may be able to advantage of the estate’s charitable deduction at death. Naming the beneficiary caregiver as the remainder beneficiary should be avoided because the beneficiary would have little to no incentive to ensure that the pet survives.

These Trusts can be created during the life of the owner, or upon death through the owner’s Will. Creating a Trust during the owner’s life can provide that the pet remain with the owner through disability or nursing care by including a provision in the Trust that allows for payment of the remainder of the Trust property to the nursing care facilities for the privilege of allowing owner and pet to remain together.

If a Trust sounds too complicated and too expensive, an alternative is to draft an agreement which provides for care of the pet, should the owner no longer be able to take care of it. New York pet law attorney Rachel Hirschfeld has created The Pet Protection Agreement, which is a legally enforceable agreement between a pet owner and a pet guardian. It is a “check-the-box” and “fill-in-the-blanks” form to allow pet owners to specify their wishes in a comprehensive, effective and quick way.

At the very least, a pet owner should take the following steps, which can be prepared for free and without assistance. First, carry an “animal card” in your wallet. It should contain information about the type of animal, its name, where it is located, and special care instructions. Second, fill out an animal information sheet with more specific instructions on the special care and wishes for your pet. Third, place an emergency sticker on the door or window of your home, indicating the number of animals inside. All of these materials are available through the Humane Society of the United States, and should be kept updated and stored with the owners’ Will or other estate planning documents, where appropriate.

Estate planning takes care of those we love, and who loved us, after we die. Many times pets provide an unmatched amount of support and friendship, and they deserve the same preparation for our deaths as our human loved ones do. By consulting an estate planning attorney familiar with pet planning, you can make sure your trusted companion is well cared for after you are gone.

Follow Wolf Baldwin Around The Internet

2011-03-31T18:24:00.000-07:00

The law firm of Wolf, Baldwin and Associates, P.C. has been serving the people of Pennsylvania for more than 30 years. Over that time, we have always found new ways to reach out to the people in our community.

As times have changed, we too at Wolf, Baldwin and Associates, P.C. have changed to make services more available to the people of Pennsylvania. In that spirit, we can now be found at a variety of locations and social media services around the internet. Below is a list of some of those accounts. Please click on the hyper-link to visit our locations. If you are on Facebook, feel free to become a fan of the practice so you can stay up to date with the latest news from Wolf, Baldwin and Associates, P.C.

If you are a fan, friend or former client of the firm, feel free to offer feedback on any of the above websites. We appreciate your input and your business.

Wolf, Baldwin and Associates, PC announces the addition of new associate Kristen Doleva-Lecher

2011-02-08T07:17:00.000-08:00

Wolf, Baldwin & Associates, P.C. is pleased to announce the addition of Kristen Doleva-Lecher to their firm as an associate attorney. Ms. Doleva-Lecher will practice at the firm’s Reading office at 606 Court Street. She will also be available for appointments in the firm’s Pottstown office two days per week. She will focus on general litigation, family, and business and corporate matters, as well as alternative dispute resolution and mediation.

Ms. Doleva-Lecher earned her undergraduate degree from University of Pittsburgh. She obtained a Juris Doctor from Nova Southeastern University – Shepard Broad Law Center in Ft. Lauderdale, FL.

As a life-long resident of Berks County, Mrs. Doleva-Lecher is proud to be joining a firm with such a strong commitment to community. “Practicing law in a county in which I spent approximately 30 years of my life is very important to me. One of the aspects of practicing law that I enjoy most is assisting local business owners with their legal issues while leading them to success with their company. The success of local business owners is ultimately the success of our community.”

Ms. Doleva-Lecher was most recently associated with Ryan, Russell, Ogden & Seltzer in Wyomissing, PA. She had a solo practice, also in Wyomissing, from 2005 to 2007, and has also practiced with Mette, Evans, Woodside in Harrisburg, PA and Golden, Masano, Bradley in Wyomissing, PA.

“After practicing law in Pennsylvania for approximately 7 years on my return to the legal arena, I carefully targeted the type of firm with which I wanted to associate. My criteria included a firm where the attorneys are very experienced, ethical and who truly care about their clients. I also sought out a firm where there is a sense of internal loyalty. In Wolf, Baldwin, I found all of this.”

“I met Jack Wolf while we were both completing a mediation certification course. It is not often that I have met the caliber of an attorney like Mr. Wolf who didn’t come off as unapproachable. Within a few days I was bending his ear for legal advice. I am humbled to be able to say I work for him now. It is a rarity to have not only an extremely intelligent and successful mentor but one that is also business savvy.”

“We are excited about Kristen joining the firm,” said Jack Wolf, founder of Wolf, Baldwin & Associates. “Our firm has had a presence in Berks County for a long time, and we are looking forward to being able to grow in that region. Kristen’s roots in that community will be an asset to developing our offerings there.”

Mr. Wolf and Ms. Doleva-Lecher have both completed 50 hours of training as certified mediators, Mr. Wolf in Montgomery County and Ms. Doleva-Lecher in Berks & Montgomery counties.

“Mediation is an attractive alternative to litigation in many kinds of cases,” said Mr. Wolf. “It offers clients a cost-effective, speedy, and private alternative to resolving disputes through the courts.”

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

Wolf Baldwin has exciting news about Thomas R. Beveridge, Esq.

2010-12-24T07:41:00.000-08:00

The law offices of Wolf, Baldwin and Associates is proud to announce that associate Thomas R. Beveridge, Esq. is leaving to start his own practice in St. Mary's, Pennsylvania. We wish Thomas Beveridge all the best in his future endeavors.

Mr. Beveridge is an active member of the Pennsylvania Bar Association and its Workers’ Compensation Section, as well as the Montgomery County Bar Association and its Workers’ Compensation Section. He is admitted to practice before all courts of the Commonwealth of Pennsylvania and the United States District Court for the Eastern District of Pennsylvania.

Mr. Beveridge has written and lectured for the Pennsylvania Bar Institute and the annual Pennsylvania Bureau of Workers’ Compensation Conference. He is a regular contributor to the Montgomery County Woman on contemporary issues in Pennsylvania Workers Compensation Law.

New Family Law Website in Pennsylvania

2010-11-22T09:51:00.001-08:00

Wolf, Baldwin and Associates are proud to announce the launch of the new Tri-County Family Law website.

This site will focus primarily on Family Law issues such as Child Support, Spousal Support, Divorce and Custody. For more than 30 years, the family law lawyers at Wolf, Baldwin and Associates, P.C. have represented clients in all aspects of Pennsylvania family law cases.

If you are interested in the services of Wolf, Baldwin and Associates, P.C. to address your family law concerns, feel free to click here to contact us.

Pennsylvania's Home Improvement Consumer Protection Act Revisited

2010-07-23T13:38:00.000-07:00

Back on June 11, 2009 Wolf, Baldwin and Associates wrote a blog covering the new Pennsylvania New Home Improvement Consumer Protection Act and how it would effect both consumer and contractor alike.

In the news today, it was written that the Pennsylvania Attorney General's Office has targeted seven home-improvement contractors across the state in lawsuits accusing them of violating the state's Home Improvement Consumer Protection Act. Three of those contractors were from nearby Philadelphia.

According to State Attorney General Tom Corbett, "Complaints about home improvement projects 'gone bad' are typically one of the top reasons for consumers to contact the Attorney General's Office."

This once again brings to the forefront the need for contractors to make sure that they are aware of new Business Law to make sure that they are following the letter of the law while providing service and to make sure that the consumers are aware of all their rights and legal remedies at their disposal.

If you have any questions regarding the Pennsylvania Home Improvement Consumer Protection Law, feel free to contact the Lawyers at Wolf Baldwin and Associates.

The New Pennsylvania Child Support Guidelines

2010-05-13T14:49:00.000-07:00

Anyone who pays or receives child support will be interested to know that in January 2010, the Pennsylvania Supreme Court issued an update to the statewide support guidelines. Both Pennsylvania and Federal law require a review of the support guidelines every four years to ensure that the most recent economic data is used to calculate child rearing costs.

The new guidelines are effective as of May 12, 2010, and can be found online by clicking here. There are a number of important changes to the guidelines which will affect most, if not all, child support orders in Pennsylvania. Child support lawyers in PA will again need to become familiar with all the new rules and their application to the specific cases of their clients. This article will note some of the highlights of the new PA support guidelines.

The basic structure of the guidelines has not changed, in that the guidelines still attempt to allocate to the child or children of two parents the same amount of money that would have been spent on behalf of the child or children had the parents been living together. These calculations, however, have changed significantly in that the formulas now allow for calculations of support for family net incomes of up to $30,000.00 per month, and the rules for combined family net incomes over $30,000.00 per month have changed significantly. The law previously known as the Melzer rule used in high income support cases, named after the case of Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), has been superseded by the new guidelines.

Also superseded is the ruling in Isralsky v. Isralsky, 824 A.2d 1178 (Pa.Super. 2003), which allowed for a mortgage modification to a support order to occur after a divorce. The new rule clarifies that the mortgage payment deviation cannot be applied after a final order of equitable distribution has been entered, because presumably the marital residence will have been distributed to one party or the other.

There remain many variables to consider such as health insurance contributions, the number of overnights the non-custodial parent has with the child or children, unusually high mortgage payments, and other extraordinary expenses, to name a few. As set forth in the official comments to the new Rules, “[t]he basic support schedule incorporates an assumption that the children spend 30% of the time with the obligor and that the obligor makes direct expenditures on their behalf during that time.” The new guidelines call on the courts to recognize that some parents do not see their children often and to consider upward deviation of the support order as a result; conversely, parents who spend a significant amount of daytime time with the children and pay for meals and entertainment during those hours may seek a downward deviation from the guidelines even if those parents do not have the children overnight.

For some income levels, the guidelines will increase the amount of support; for others, the new guidelines will indicate a decrease. Both obligors and obligees should keep in mind, though, that no changes to existing support orders are automatic, and a petition must be filed before a support order can be modified.
The guidelines have increased the basic amount which low-income support obligors may keep for themselves in order to meet their own basic needs under Federal poverty standards. That amount, now called the “Self-Support Reserve,” increased from $748.00 per month to $867.00 per month.

The courts must also take into account the duration of the marriage when crafting spousal support orders.

Support payors and payees, especially in those families with high net monthly incomes, would be wise to meet with their PA family law attorneys to review their existing orders, so that the effects of the new Pennsylvania support guidelines can be weighed, and modifications sought if appropriate.

A Review of the Highlights from the Credit Card Act of 2009

2010-04-05T12:03:00.000-07:00

During the summer of my junior year at college, I was walking to class and passed a table filled with towels embroidered with our school logo and water bottles bearing the college crest. Beside these objects were several applications and pens advertising low interest rates and no payments for the first six months with all approved applications. This was my introduction to the world of the credit card. With the whirl of a black pen, I was handed my first temporary credit card with a $750.00 limit and also a beautifully embroidered golf towel (which I lost 3 weeks later). Without a job or even a credit history, I was off to discover all of the things I could buy with this little piece of plastic. Little did I know that this credit card was the beginning the trend of spending which I would continue into my later adult years. Fortunately, in 2009, Congress and our President stepped in to address the practices of credit card companies.

Over the past two years, many of us have seen credit card interest rates skyrocket from single to double digits – sometimes reaching well above the 20% range. In response, the federal government promised credit card reform to rescue consumers from the ongoing mystery and mayhem incited by the credit card companies. As promised, in May of 2009, President Obama signed in to law the “Credit Card Accountability Responsibility and Disclosure Act of 2009” commonly referred to as the Credit CARD Act of 2009.

The various provisions of the Credit CARD Act of 2009 offer consumers many protections against common practices of credit card companies. All of the fine details of the Credit CARD Act cannot be summarized within the limited bounds of this article. However, the balance of this commentary will provide an outline of the Act’s major provisions.

Under the Credit CARD Act, a credit card company cannot simply increase interest rates, annual fees, or finance charges whenever it chooses. The company must now provide a cardholder with a minimum of 45 days notice of the intended increase. Furthermore, the company cannot increase these items on an existing cardholder’s account unless the increase results from: (1) the expiration of a specific time period, such as a promotional rate for a set time period, so long as the cardholder is provided with ample notice of the intent to increase prior to the initiation of the promotional period; (2) a change in the actual index which is not under the credit card company’s control and is available information for the general public; (3) failure of the cardholder to make proper payment on the account during a 30 day grace period which begins immediately after the due date; (4) a hardship arrangement or agreement for repayment between the company and the cardholder; or (5) the cardholder’s failure to make the appropriate payments under the arrangement or agreement noted in (4).

The Act also prohibits a credit card company from penalizing those cardholders who make their payments on time. First, the Act eliminates the old practice of “double-cycle billing”, where the company would charge interest on a debt that was actually paid during a grace period. Additionally, companies cannot impose additional fees on the “interest only balance” of a cardholder who continues to make timely payments. Third, the company can no longer charge additional fees when a cardholder chooses to make a payment in some specific manner, (i.e. the typical $15 charge if paid by telephone), except when the payment is made through some form of expedited service of the actual credit card company.

Also along these lines, the credit card company cannot play games with a cardholder who makes timely payments on his or her account. Bills must be mailed by credit card companies to their cardholders so as to provide each cardholder with a minimum time period of 21 days to make payment before the actual due date, which must fall on the same day of each month. Should that day be a weekend or “legal banking” holiday, then the due date is considered as the next business day. Furthermore, payments received on the due date by 5:00 p.m. are considered timely.

The Act also clarified some very specific issues for consumers. Importantly, the term “fixed” commonly used by the credit card companies when referring to the interest rate on a card is required to remain constant over the period of time that is clearly outlined in the terms of the credit card account. This new provision eliminates the fear of most consumers that the credit card company will simply raise rates on their card whenever they choose despite the initial offer that came with the card.

The Act outlines several other important considerations for consumers, such as the right to refuse a “preapproved” credit card right up to the time the consumer activates the card without any negative impact on the consumer’s credit report; consumers have the right to an offer of a “fixed” credit limit that cannot be exceeded, but if it is exceeded, no additional fee can be assessed against the cardholder, except in very limited and specific circumstances. Additionally, all payments must be credited against the highest interest bearing debt (i.e., a cash advance) before applying such payments to the lower interest debts.

One new and eye-opening requirement that consumers will see on their credit card statements is the calculation by the company as to how long it will take a cardholder to pay off the debt if only the minimum payments are made and the total amount of interest that would be paid in such a scenario. Many people have already discovered this new formula on their statements and were absolutely shocked (this author included) at the reality of making such payments. Additionally, however, a credit card statement must also bear an additional calculation as to the required payment to eliminate the card balance within 3 years and another calculation of the amount of interest that would be paid under that scenario. Of course, this new information is expected to lead many of us to increase the amount of our payments and satisfy these debts much sooner than otherwise expected.

One other series of requirements which are most important to this author revolve around the protection of younger consumers from credit card companies. The Act requires that a credit card cannot be issued to anyone under the age of 21, unless that individual has a cosigner who is over the age of 21 and is capable of repaying the debt incurred on the account (i.e. parent, legal guardian, etc.). Additionally, credit card companies must now have a legitimate reason to market their cards at universities and colleges. Furthermore, the companies can no longer hand out promotional items such golf towels, water bottles, gift certificates, etc., to seduce a consumer to sign up for a credit card.

While there are other idiosyncrasies to the Credit CARD Act of 2009, the highlighted provisions will most substantially affect consumers and existing credit card holders. Certainly, we can all appreciate the efforts of our government to reform the practices of credit card companies. However, until the application of the Act, its oversight and enforcement, and the initiation of regulations pertaining thereto are more fully outlined and tested, this author remains skeptical as to the practical effect of these provisions, excluding, of course, the “wake-up call” minimum payment chart. I had no idea that college golf towel would be so expensive.

To discuss the matters of consumer protection, and to discuss your rights regarding credit cards, contact the lawyers at Wolf, Baldwin and Associates, P.C. for a consultation today.

Unemployment Compensation – Necessitous and Compelling Reasons to Quit Employment, Volume 2

2010-01-29T14:31:00.000-08:00

With the national unemployment rate now above ten percent, it seems unthinkable that anyone would voluntarily quit a steady job without the good fortune of having another job lined up first. But even in a down economy, there can be forces greater than the pressure to maintain a steady paycheck.

In an earlier column, we explored some of the circumstances in which an employee can collect unemployment compensation benefits after voluntarily quitting his or her job. Today we discuss some of the more recent developments in this area of unemployment compensation law.
As the reader may recall, an employee who voluntarily resigns a position of employment may have the same right to collect unemployment benefits as an employee who was involuntarily separated from employment through a layoff, if that employee quit that job for a “necessitous and compelling” reason. While the Pennsylvania Unemployment Compensation Act at 43 P.S. Section 804 (b) dictates the “necessitous and compelling” standard, it does not provide much guidance as to what the phrase “necessitous and compelling” actually means.
The job of fleshing out the meaning of this “necessitous and compelling” standard has been left to the Pennsylvania courts. In some cases, difficulties in the employment itself provide the employee with a compelling reason to quit. In many of these cases, such as those where an employee quits after an employer fails or refuses to address repeated sexual harassment or unreasonable workplace safety or health issues despite the employee’s repeated requests for corrective measures, the employee’s entitlement to unemployment compensation is now clear. But in cases where the employee quits for personal reasons unrelated to the job itself, the courts are still working out the rules.

1. Child Care Cases.

We previously reported on the case of Beachem v. Unemployment Compensation Board of Review, 760 A.2d 68 (Pa.Cmwlth. 2000). In Beachem, the Pennsylvania Commonwealth Court ruled that an employee who had quit his job to care for his special needs child had a necessitous and compelling reason to quit when the child had a need for the type of daily psychological support that only the claimant, as the child’s parent, could provide. More recently, however, the Pennsylvania Commonwealth Court denied unemployment compensation benefits to an employee who had failed to exhaust all child care alternatives before quitting her job. Shaffer v. Unemployment Compensation Board of Review, 928 A.2d 391 (Pa.Cmwlth. 2007). In Shaffer, the employee needed different child care arrangements when her employer moved her work location 11 miles farther from her home. After determining that one particular child care arrangement would have been cost-prohibitive, the employee immediately resigned her employment due to her child care issues and the increased costs of commuting to the new job location. The court held that while the need to provide care for a child may still be a necessitous and compelling reason to resign from a job, in order to be eligible for unemployment compensation benefits, the employee must first exhaust all other child care options. For this reason, the court upheld the denial of unemployment compensation benefits.
There are now a number of reported Pennsylvania decisions in which family obligations have provided employees with necessitous and compelling reasons to resign their employment. During this past year, the Pennsylvania Commonwealth Court extended this line of cases to award benefits to an employee who quit his job to care for someone who was not a member of his family. In Wagner v. Unemployment Compensation Board of Review, 965 A.2d 323 (Pa.Cmwlth. 2009), the court awarded benefits to a man who first took a leave of absence from his job in Iraq before ultimately quitting that job to assist his fiancée in her dealings with an abusive ex-boyfriend, a difficult custody fight and a child with medical problems. While it could be said that the employee explored alternatives to quitting by first taking a leave of absence from work to address his fiancée’s difficulties and then seeking work stateside before ultimately quitting, the court did not even discuss the adequacy of his efforts to exhaust alternatives to resigning his employment. Instead, the court simply concluded that the employee’s “domestic circumstances” provided him with good cause to quit.

However, within the past few months, the Commonwealth Court limited the potential out-of-family reach of the Wagner case in Dopson v. Unemployment Compensation Board of Review, WL 3790188 (Nov. 13, 2009). In Dopson, the court explained away the Wagner decision by reasoning that it had involved not just a boyfriend, but a “future stepfather” (though the basis for the court’s certainty of a future marriage is somewhat unclear). The Dopson court proceeded to reject a grandmother’s claim that child care requirements for a newborn grandchild had provided a necessitous and compelling reason for her to quit her job, reasoning that (1) the Pennsylvania courts have never allowed such a claim when it involved a grandparent caring for a grandchild (as opposed to a parent caring for a child), and (2) the previous decisions in which child care considerations had amounted to a necessitous and compelling reason to quit a job had all involved children with emotional or physical problems, unlike the case of the newborn in Dopson.

2. “Follow the Spouse” Cases.

The Pennsylvania courts have long allowed unemployment compensation benefits to individuals who have had to resign their jobs to follow spouses who have been relocated to other positions of employment, if (1) the move was necessitated by circumstances beyond the control of the spouse, and (2) there was economic hardship in maintaining two residences or the move caused insurmountable commuting problems. Wheeler v. Unemployment Compensation Board of Review, 450 A.2d 775 (Pa.Cmwlth. 1982).

While subsequent decisions limited this “follow the spouse” rule to married couples, the courts are now confronting what may be a new wave of cases challenging the constitutionality of these earlier decisions denying benefits in cases of same-sex couples. In Procito v. Unemployment Compensation Board of Review, 945 A.2d 261 (Pa.Cmwlth. 2008), the court side-stepped the potentially thorny constitutional issue of not extending the “follow the spouse” rule from married couples to same-sex couples by denying benefits on grounds that the change of job was motivated by personal reasons (the desire to live in a less stressful environment and to be near a college-aged child), and not by a necessitous and compelling economic reason. While the Procito court was able to avoid the constitutional challenge for the time being, the issue is likely to resurface in another case in the not-too-distant future.

It is difficult to spot any plain trends in these recent decisions of the Pennsylvania Commonwealth Court. What is clear is that while the court is grappling with the fact that both conventional and unconventional families alike are forced to hard economic choices when child care and job relocation issues arise, the court is also exhibiting a reluctance to further expand unemployment compensation entitlement for employees who have voluntarily quit their jobs.

Statutory Employers in Pennsylvania

2009-12-22T15:09:00.000-08:00

Did you know that an employee can have more than one employer while working on the same job? It happens all the time, although you might not realize it. We commonly expect that an employee can come to be in the employment relationship due to an oral or written contract, or as a result of common law. But most people may not realize that the Workers’ Compensation Act also can impose an employer-employee relationship (at least for workers’ compensation purposes) on parties who have never met.

The Workers’ Compensation Act provides that an employer, such as a general contractor on a job, can be liable to a laborer hired by another employer, such as a subcontractor. Specifically, the Act provides:

An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employee or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee.

77 P.S. § 52. The effect of this statute is two-fold: it allows workers’ compensation coverage for an injured worker when his direct employer – typically a subcontractor to a general contractor – failed to maintain appropriate workers’ compensation coverage, and it also allows the general contractor to enjoy immunity from the personal injury lawsuits of an injured worker just like a “regular” employer of an injured worker.

As far back as 1930, the Pennsylvania Supreme Court set out a five prong test for whether an employer is a statutory employer:

(1) an employer who is under contract with an owner or one in the position of an owner

(2) premises occupied by or under the control of such employer

(3) a subcontract made by such employer

(4) part of the employer’s regular business entrusted to such subcontractor

(5) an employee of such subcontractor

McDonald v. Levinson Steel Co., 302 Pa. 287 at 294-295, 153 A. 424 at 426 (1930).

Under the second prong of McDonald, an employer’s occupancy or control must be actual, but need not be exclusive. An employer satisfies the second prong by proving either occupancy or control and it is not required to prove both. Regarding the fourth prong, this statutory requirement is met when the subcontracted work is an obligation assumed by a principal contractor under its contract with the owner, or one in the position of an owner. Braun v. Target Corp., --- A.2d ----, 2009 Pa.Super 206 (October 23, 2009).

In this day and age, it is thankfully rare for a subcontractor to fail to carry workers’ compensation insurance, so the statutory employer provision is rarely invoked for purposes of covering injured workers. Therefore, this statute is more frequently utilized as a shield when a worker who is injured while working for a subcontractor attempts to bring a civil personal injury lawsuit against the general contractor on the job. The general contractor, under the statute, is immune from suit even if it does not actually have to pay workers’ compensation to the injured worker.

Construction of the statutory employer provisions of the Pennsylvania Workers’ Compensation Act is complex for both workers’ comp lawyers and personal injury lawyers. Persons with questions about the application of this Act should contact experienced counsel to determine their rights.

Our attorneys at Wolf, Baldwin & Associates are able to answer your questions regarding Pennsylvania's Workers' Compensation and all issues regarding Statutory Employers in Pennsylvania. Our lawyers are experienced in workers' compensation cases, representing both employees and employers. Please click here to contact us.

The Americans with Disabilities Act Amendments Act of 2008 – A Capsule Summary

2009-11-25T14:28:00.000-08:00

As President Bush neared the end of his term of service, he signed into law the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”). Effective as of January 1, 2009, the main purpose of these various amendments was to expand the definition of “disability”, thereby providing broader coverage to those individuals working with impairments. The Amendments also clarified many other issues which developed over the preceding nineteen years of interpretation by the courts of the United States. While limited by the available space for this particular article, the following information will provide a brief summary of the most important aspects of these Amendments as they impact employers and disabled workers.

The federal government enacted the Americans with Disabilities Act of 1990 (the “ADA”) in an effort to prevent discrimination against disabled individuals in “all aspects of society”. (The Americans with Disabilities Act: A Primer for Small Business, Page2). Enforcement of the various provisions of the ADA is overseen by the Equal Employment Opportunity Commission (“EEOC”). On the state level, Pennsylvania also enacted legislation to prevent discrimination against disabled individuals which essentially mirrors most of the protections offered by the ADA. This legislation, the Pennsylvania Human Relation Act (“PHRA”), is governed and enforced by the Pennsylvania Human Relations Commission. The interplay of the PHRA with the ADA is, unfortunately, beyond the scope of this article.

Under the ADA, an employer with fifteen (15) or more employees may not discriminate against a qualified individual with a disability and must make reasonable accommodations for disabled job applicants and employees, unless doing so would impose an undue hardship on the employer. The regulations promulgated by the EEOC and several United States Supreme Court cases ultimately led to a narrowing of the definitions of these various terms and thereby the effective coverage of the ADA. One of the major concerns addressed by the ADAAA was the determination of what individuals were actually protected by the ADA pursuant to the definition of “disability”.

Under the original definition in the ADA, a “disability” was considered as, (1) a physical or mental impairment that substantially limited one or more major life activities; (2) having a recorded history of such an impairment, or (3) being regarded as having such an impairment. As you can imagine, these categories led to even further interpretation and limitation by the EEOC regulations and the Supreme Court’s decisions.

In an effort to expand the definition of “disability” and clarify these various interpretations, the ADAAA effectively changed the way that the terms of the definition should be viewed. While maintaining the original definition, the ADAAA expands the category of “major life activities” to include two clear and - more importantly - non-exhaustive collections of such activities. The first collection of activities includes many of the previously recognized activities such as caring for oneself, walking, speaking, hearing, learning, seeing, working, performing manual tasks, and breathing. To this list, the ADAAA added such activities as reading, bending, concentrating, and thinking. The second collection of activities encompass major bodily functions such as digestive, bowel, bladder, neurological, immune system, brain, respiratory, circulatory, endocrine, reproductive and normal cell growth. Importantly, neither of these lists is considered comprehensive; but rather, these various entries are only some, but not all, of the activities which may be considered major life activities.

The ADAAA also includes in the definition of disability medical conditions that may be in remission or considered episodic, but would substantially limit a major life activity when actually active. A good example of this type of a condition is diabetes.

With regard to the third category of disability, the ADAAA now considers a covered individual to be one who is “regarded as” disabled when subject to an action that is prohibited by the ADA (such as, termination or failing to hire the individual when otherwise qualified for the position) where the action was based on an impairment that is not considered either transitory or minor. Also of note, individuals who fall within this category of “regarded as” are not entitled to reasonable accommodations.

One of the main decisions of the United States Supreme Court which was overturned by the ADAAA was the case of Sutton v. United Airlines, Inc., 527 U.S. 471 (1999). In this case, the Supreme Court held mitigating measures such as medications, medical equipment, etc. were to be taken into consideration whenever conducting an analysis regarding a determination as to whether a qualifying disability existed. In direct contrast to this holding, the Amendments now provide that such analysis of whether an individual is disabled under the definition of the Act should be made without regard to any mitigating factors, except for the use of ordinary eyeglasses or contact lenses.

While it would seem the ADAAA favors only the disabled employee or individual seeking employment, employers subject to the ADA may still raise the argument of “undue hardship” when defending against a request for reasonable accommodations. The ADA defines “reasonable accommodations” as adjustments or modifications which can be made by an employer so as to enable a person with a qualified disability to experience equal employment opportunities. However, when any such accommodations “result in significant difficulty or expense”, then the employer need not provide such accommodations. (The Americans with Disabilities Act: A Primer for Small Business, Page 7). Also, the ADAAA prohibits reverse discrimination claims by other employees against their employers where disabled employees are provided reasonable accommodations to which other employees without such disabilities are not entitled.

At the present time, the EEOC and the U.S. Department of Justice Civil Rights Division are involved in evaluating new and proposed regulations to administer the new provisions of the ADAAA. The final version of the regulations should be available sometime early next year.

While this article can only provide a very brief summary and general overview of some of the considerations of the Amendments to the Americans with Disabilities Act, all employers regardless of the size of their workforce should be aware of the various ramifications of all state and federal laws and regulations which are designed to protect against discrimination in the workplace. For further advice regarding these issues, as well as new topics and trends in business and employment law, please feel free to contact the attorneys at Wolf, Baldwin and Associates.

The Breach of Personal Information Notification Act

2009-10-11T20:46:00.000-07:00

On December 22, 2005, Pennsylvania joined a number of other states which seek to protect consumers from security breaches involving unauthorized distribution of personal information. This new law, which took effect on June 20, 2006, is called the Breach of Personal Information Notification Act, and it can be found at 73 P.S. § 2301 et seq.. Simply put, the Act seeks to force businesses to promptly notify residents of the Commonwealth when any of their personal information has fallen into the wrong hands, or when the security of its records is breached.

The new law is broadly drafted, touching every single entity doing business in the Commonwealth, whether for-profit or non-profit, whether multinational or a sole proprietorship. A “business” is defined in the Act as “a sole proprietorship, partnership, corporation, association or other group, however organized and whether or not organized to operate at a profit, including a financial institution organized, chartered or holding a license or authorization certificate under the laws of this Commonwealth, any other state, the United States or any other country, or the parent or the subsidiary of a financial institution. The term includes an entity that destroys records.”

By its terms, the Act seeks to protect “personal information,” which is defined as an individual’s first name or first initial and last name in combination with and linked to any one or more of the following data elements when the data elements are not encrypted or redacted: (i) Social Security number; (ii) Driver’s license number or a State identification card number issued in lieu of a driver’s license; (iii) Financial account number, credit or debit card number, in combination with any required security code, access code or password that would permit access to an individual’s financial account. The definition of personal information does not include publicly available information that is lawfully made available to the general public from Federal, State or local government records.

Two words in the above definition of “personal information” are further defined by the Act: “encryption” and “redact.” Encryption, as defined in the Act, is the use of an algorithmic process to transform data into a form in which there is a low probability of assigning meaning without use of a confidential process or key. “Redact” includes, but is not limited to, alteration or truncation such that no more than the last four digits of a Social Security number, driver’s license number, State identification card number or account number is accessible as part of the data.

A further definition is important to understand the meaning of the Act. “Breach of the security of the system” is defined as the unauthorized access and acquisition of computerized data that materially compromises the security or confidentiality of personal information maintained by the entity as part of a database of personal information regarding multiple individuals and that causes or the entity reasonably believes has caused or will cause loss or injury to any resident of this Commonwealth.

The definition sections of the Act leaves open the question of whether the theft of a handwritten client list with names, Social Security numbers, account numbers, and security codes would fail to trigger the Act because the list was not “computerized data.” One is also left to ponder the effect of the word “materially.” This is because there is an unavoidably some subjectivity in such wording, such that the notice provisions could conceivably be ignored if the security or confidentiality of the personal information is deemed not to be “materially” compromised. Only time, and the eventual litigation over these issues, will allow a business’ true obligations under this law to be comfortably understood.

With these definitions in mind, we turn to the heart of the Act – the notice requirement. The Act provides that an entity that maintains, stores or manages computerized data that includes personal information shall provide notice of any breach of the security of the system following discovery of the breach of the security of the system to any resident of this Commonwealth whose unencrypted and unredacted personal information was or is reasonably believed to have been accessed and acquired by an unauthorized person. The notice must be made without unreasonable delay unless a law enforcement agency determines that the notice will impede an investigation or will compromise national or homeland security. A vendor that maintains the data on behalf of another entity must provide notice of any breach of its systems to entity for which it stores the records, which entity then has the obligation to provide the required notice.

One last definition, then, is crucial. What is the required notice?

The Act requires that notice be provided by any of the following methods:

(1) written notice to the last known home address for the individual;

(2) telephonic notice, if the customer can be reasonably expected to receive it and the notice is given in a clear and conspicuous manner, describes the incident in general terms and verifies personal information but does not require the customer to provide personal information and the customer is provided with a telephone number to call or Internet website to visit for further information or assistance;

(3) e-mail notice, if a prior business relationship exists and the person or entity has a valid e-mail address for the individual; or

(4) substitute notice, if the entity demonstrates that the cost of providing notice would exceed $100,000, or the affected class of subject persons to be notified exceeds 175,000, or the entity does not have sufficient contact information. Substitute notice consists of (1) e-mail notice when the entity has an e-mail address for the subject persons, (2) conspicuous posting of the notice on the entity’s Internet website if the entity maintains one, and (3) notification to major Statewide media.

The penalties for violating the Act are potentially severe. A violation is deemed to be an unfair or deceptive act or practice in violation of Unfair Trade Practices and Consumer Protection Law. Only time will tell what the real effect of the Breach of Personal Information Notification Act will be. However, any person or entity maintaining the personal information of Pennsylvania residents will be wise to become familiar with the requirements of the Act, and should prepare plans for how to deal with a potential breach of security.

Our attorneys at Wolf, Baldwin & Associates are able to answer your questions regarding the protection of your personal information. Our lawyers are experienced in handling this type of case work representing both employees and employers. Please click here to contact us.

Terminating Workers' Compensation Medical Benefits in Pennsylvania

2009-09-24T10:23:00.000-07:00

Employees who have been injured at work and are receiving workers’ compensation benefits have a number of rights related to the medical portion of their claims. Injured persons receiving workers’ compensation benefits should realize that those benefits are essentially comprised of two aspects – medical and indemnity. The indemnity portion of workers’ compensation benefits are the weekly or biweekly checks which compensate injured workers for their lost wages. The medical portion of benefits pertains to the cost of any medical treatment related to the injury. The precise nature of what is covered under the medical portion of a claim can be quite confusing, but generally all medical treatment which is reasonable, necessary, and related to the accepted injury is the responsibility of the employer’s workers’ compensation carrier.

Many of our clients ask how their medical benefits can be challenged or even stopped once they have started. Before covering those issues, injured workers should know some of the general principles governing their medical benefits.

First, when benefits are awarded, either by a Workers’ Compensation Judge, or by a document issued by an insurance carrier (called a Notice of Compensation Payable or “NCP”, or an Agreement for Compensation), there is usually a defined and accepted injury. Examples of an accepted injury would be “low back strain and sprain,” or “knee sprain.” This “accepted” injury is important because it defines exactly what body part the insurance carrier is responsible for covering. For example, if the accepted injury is “knee sprain” the insurance carrier may balk at paying for treatment related to an ankle injury, even if that injury occurred along with and at the same time as the original injury.

Any discrepancies in the injury description can be corrected (within any applicable statutes of limitation) by having an attorney file a petition to review the description of injury. With this petition the injured worker can ask a Judge to amend the injury description to include additional body parts by proving that those injuries are also related to the original injury. However, until the Judge issues an order officially adding to the description of injury, the insurance carrier will not be responsible for treatment of any injuries but the officially accepted injury. This concept is often troublesome to injured workers because litigation over an injury description can often take well over nine months, and until the description is officially amended by a Judge, additional treatment to any parts of the body that are not officially accepted will be denied.

If an insurance carrier chooses to challenge the reasonableness or necessity of medical treatment it can request a Utilization Review (“UR”). This process challenges past or future treatment by having it reviewed by the same type of provider. For example, if an insurance carrier wishes to challenge chiropractic care, it will be reviewed by a third party chiropractor. During this process (which will usually take 30 days), the insurance carrier will not be responsible for paying any bill submitted by that chiropractor. It is important to note that only the bills of the chiropractor under review are temporarily not paid. All other providers’ bills must still be paid. This rule is often not followed by insurance carriers. Workers’ compensation carriers will often file a UR request and then believe they can decline to pay any medical bills.

Once the UR reviewer makes a determination about the reasonableness or necessity of treatment, either party can then appeal the outcome to a workers’ compensation judge. However, during this process all bills must still be paid if the UR determination is positive for the injured worker.

Having covered some of the basics of the medical portion of a claim, the questions still remains, how can an injured worker’s medical benefits be stopped? Generally, there are two ways that medical benefits for an officially accepted injury can be stopped. First, the worker can settle his or her case in exchange for a lump sum of money. If the settlement includes a cessation of medical benefits, they will often stop as of the day a Judge officially approves the settlement. Working out the specific details of settlements is best left to workers’ compensation attorneys who can make sure that all aspects of a claim are considered as part of the settlement, including medical benefits, and thus all injured workers contemplating a settlement should contact an experienced Pennsylvania workers’ comp attorney.

The other way that medical benefits can be stopped is if the insurance company successfully litigates a termination petition. To win a termination petition, the insurance carrier must prove that the injured worker is fully recovered, and can return to his or her pre-injury job without restrictions. The burden of proof is very high on these petitions; thus, they are rarely successful.

The injured worker will attend an independent medical exam, often called an IME, and if the IME doctor opines that the injured worker’s injured has ceased entirely, and that the worker can return to work without restrictions, the carrier can then file the termination petition. The injured worker can defend this petition by presenting testimony of his or her own treating doctor to show that the injury continues and that the worker cannot return to work without restrictions. This litigation typically lasts more than nine months and, as mentioned, is rarely successful. However, with the addition of other evidence, such as surveillance, the insurance carriers, from time to time, can convince a judge that the injured worker is fully recovered. Once the judge rules that the workers’ disability has ceased entirely, the insurance carrier is no longer responsible to pay for any medical treatment.

Other than the two possibilities discussed above, once an injury is officially accepted, the insurance carrier is responsible for all related medical treatment. And despite the misconceptions to the contrary, it could potentially be responsible for that treatment for the rest of the injured workers’ life. Issues surrounding workers’ compensation medical benefits are complicated and this article only touches on the basics. Employers and injured workers with questions about terminating a claimant’s medical treatment should speak with an attorney who is well-versed in Pennsylvania workers’ compensation law.

Our attorneys at Wolf, Baldwin & Associates are able to answer your questions regarding Pennsylvania's Workers' Compensation and collateral benefits. Our lawyers are experienced in workers' compensation cases, representing both employees and employers. Please click here to contact us.

Pennsylvania's new 'mini-COBRA' law of 2009

2009-08-11T15:25:00.000-07:00

On June 10, 2009, Governor Edward G. Rendell signed into law Act 2 of 2009, under which covered employees who lose group health insurance coverage as a result of a qualifying event are eligible for continuation coverage. This new law has similarities to the federal COBRA law, hence the name “Mini-COBRA.” Both laws provide for the continuation of health insurance coverage in certain situations. This new law took effect on July 10, 2009.

The Mini-COBRA law applies only to employees of small businesses, i.e. those with two to nineteen employees. After the cessation of employment, the law gives eligible employees the right to buy continuation coverage for up to nine months after their employment ends. The employee must have been continuously insured under the group policy for three consecutive months ending with the employee’s termination. Employees are required to pay for the continuation coverage on a monthly basis.

Covered employees and/or their dependents will be eligible for continuation coverage where they have lost group coverage due to a “qualifying event”. This can be the death of the covered employee, the termination of employment, a reduction in hours, divorce or separation, eligibility for Medicare, change in dependent status, or the bankruptcy of the employer.

The new law requires that the continuation coverage must include the benefits provided under the group policy. Mini-COBRA applies to hospital, surgical, and major medical policies only.

If the employee subsequently becomes eligible for a new employer’s health insurance coverage or for Medicare, they are no longer eligible for Mini-COBRA.
Insurance companies are required to notify policyholders (employers) of the new law by or before August 24, 2009. Small employers should collaborate with their group health plan insurers to make sure the requirements of the new Mini-COBRA are met. Employees who have been involuntarily terminated on or after the effective date of the act (July 10, 2009) and before January 1, 2010 may be eligible for premium assistance under the federal stimulus law (the American Recovery and Reinvestment Act of 2009).

For additional information on Mini-COBRA, you can visit the Pennsylvania Insurance Department website, and search for "mini-cobra", or you can call the following phone numbers: Automated Consumer Hotline: 1-877-881-6388; Philadelphia Regional Office: (215) 560-2630.

Employers or employees who have questions regarding a person's rights should contact the attorneys at Wolf, Baldwin & Associates, P.C. for further information or to schedule a consultation

What’s Next? Typical Strategies for Stopping Workers’ Compensation Payments

2009-07-10T10:39:00.000-07:00

Some injured workers claims are readily accepted and some must be litigated, but there will come a time in almost every claim when workers’ compensation benefits will stop. When injured workers in Pennsylvania are receiving workers’ compensation wage loss benefits, there are only a limited number of ways in which an employer or its insurance carrier can seek to reduce or modify those benefits. "What happens after an IME?", "What is the IME capability of a claimant?", "What is the impact of an IME on a claimant?", or "Will an IME interrupt the flow of a workers comp claim after a medical examination or evaluation?", this article will review these aspects of the workers comp process after an IME and discuss some of those strategies.

Firstly, it is important to realize that claimants’ wage loss (also called “indemnity”) benefits are calculated as a function of their pre-injury average weekly wage. In general, the idea behind the Pennsylvania Workers’ Compensation Act is that if the claimant cannot earn his or her pre-injury wages as a result of the work injury, the claimant is entitled to either total disability benefits or partial disability benefits. Employers and their insurers have an interest in cutting off or reducing those benefits. That process typically starts with a medical exam so that the employer can assess the claimant’s medical restrictions. This exam is commonly referred to as an Independent Medical Exam, or IME, or a Defense Medical Exam, or DME. It has generally been accepted that an employer is entitled to a physical examination every six months, although there are circumstances in which the injured worker can challenge the reasonableness or the frequency of an examination.

Typically the IME doctor will release the claimant to return to some kind of work. If the doctor gives the opinion that the claimant’s injury has ceased entirely and the claimant can return to full duty, the employer will likely file a Termination Petition seeking an Order from a Workers’ Compensation Judge. If the employer is successful in terminating a claimant’s benefits, then both wage loss benefits and medical benefits will be stopped.

If the IME doctor says that the employee’s injury has not completely healed, but that the employee can return to modified duty work, then the employer will seek to file a Modification or Suspension Petition. Both of these petitions seek to change wage loss benefits only, as all treatment which is reasonable, necessary, and related to the continuing injury will still be paid for by the workers’ compensation insurance carrier. A suspension is appropriate when the injured workers’ earnings are no longer affected by the work injury. For instance, if after receiving the IME report the employer offers the injured worker a light duty job which falls within the restrictions of the IME doctor, the burden then shifts to the claimant to either try the job or explain why he cannot do the job in good faith. This scenario is frequently played out in workers’ comp courtrooms, where the IME doctor has an opinion as to what the injured worker can do, but the worker’s own treating doctor has a very different opinion, and the judge must decide which doctor is to be believed. Even if the injured worker would make less than her pre-injury wages by working light duty, the employer can still be entitled to a modification of the worker’s wage loss benefits – this is referred to as “partial disability,” meaning that wage loss benefits will continue, but at a reduced rate, and only for a maximum of 500 weeks.

Often the time-of-injury employer cannot accommodate the light duty restrictions of the IME doctor, and therefore cannot offer the injured worker a job. There are two other common strategies used by these employers to seek to reduce the workers’ wage loss benefits. One is to find the worker a job which accommodates the restrictions with a different company altogether. Another is to have the claimant undergo a vocational interview, to assess the claimant’s residual earning capacity, taking into account the claimant’s age, work history, medical restrictions, and skills. This is called an Earning Power Assessment. The vocational expert can then perform a labor market survey to determine whether there are any jobs in the local economy which are appropriate for and actually available to the injured worker. If so, the employer can file a petition with the Workers’ Compensation Bureau to seek to modify or suspend the injured worker’s benefits based on the earnings the worker might be able to earn at the jobs identified by the vocational expert.

It is important to know that in most instances a claimant who is receiving benefits cannot simply be “cut off” by any of these strategies. The flow of a workers’ compensation claim after a medical exam can take many different paths, but the majority of those paths require litigation and the order of a Workers’ Compensation Judge before the employer or its insurance carrier can simply stop or modify the claimant’s benefits. This article is by no means an exhaustive list of the ways in which an employer can reduce an employee’s benefits, nor does it seek to discuss the many and varied defenses which a claimant might have in order to preserve his or her benefits. Any injured worker or employer with questions about these issues is well-advised to consult with experienced workers’ compensation counsel.

The attorneys of Wolf, Baldwin & Associates, P.C. are no strangers to Pennsylvania workers' compensation courtrooms. We have been practicing in this specific area of the law for over thirty years. Insurance companies will always be represented by workers' compensation attorneys who are experienced in PA workers comp law. You require, and deserve, expert advice as well. If the insurance company unfairly denies you your rights, we will fight the workers' comp insurance carrier for your right to receive Workers' Compensation in Pennsylvania. Please click here to contact us now to learn more about your right to PA workers compensation.

Pennsylvania's surge in unemployment claims leads nation

2009-06-19T13:24:00.000-07:00

According to today's article in the Pittsburgh Post-Gazette, "Unemployment across the state rose by four-tenths of a percentage point in May, bringing the seasonally adjusted unemployment rate up to 8.2 percent, more than a full percentage point below the national rate of 9.4 percent. In May, 532,000 people were unemployed in Pennsylvania, 206,000 more than in May 2008."

The manufacturing sector Manufacturing has lost a total of 73,200 jobs since May 2008 and continued to lose jobs last month. There has also been 9,600 Information Services jobs lost since this time last year.

According to a UPI article today, Pennsylvania's additional 6,861 first time claims was the most in the country last week. Nationwide, there was a decrease of 148,000 people receiving unemployment compensation benefit claims. This is the first time since January that there has been a drop in the number of those receiving unemployment compensation benefits. However, it is believed that this is more likely the result of people exhausting the standard unemployment benefits rather than finding new employment.

If you, or someone you know, find themselves in need of filing an unemployment compensation benefit claim or if you have nearly exhausted your standard unemployment compensation, it is important that you know what you are entitled to in this dire economic climate. If you feel that your unemployment compensation claim is being denied unfairly, or if you feel that you may not be receiving all that you are entitled to, feel free to contact our staff of benefit compensation lawyers by clicking here.

Pennsylvania’s New Home Improvement Consumer Protection Act

2009-06-11T16:32:00.000-07:00

The Tri-County Area is no stranger to home improvement contract scams. Anyone who has paid attention to the local newspapers over the past few years will recall the scandals and prosecutions of home improvement contractors gone bad – of contracts not honored, and of unearned deposits not refunded. It appears that the Pennsylvania legislature has heard those stories as well, for on July 1, 2009, a new Home Improvement Consumer Protection Act will take effect in the Commonwealth of Pennsylvania. The Act, located at 73 Pa.C.S. § 517.1 et. seq., is replete with numerous definitions, requirements, prohibitions and penalties. While many lawyers will be spending many hours learning the details of the Act and the interplay between and among its various provisions, we can now report on at least some of the basic details of the Act.

“HOME IMPROVEMENT CONTRACTOR”

The Act applies to any person who owns and operates a home improvement business or who undertakes offers or agrees to perform any home improvement, including a subcontractor who has contracted with a home improvement retailer to provide home improvement services to the retailer’s customers. But the Act does not apply to a person for whom the total cash value of all of that person’s home improvements is less than $5,000.00 during the previous taxable year. Most provisions of the Act also do not apply to home improvement retailers having a net worth of more than $50,000,000.00 or any employee of that retailer that does not perform home improvements, thus excluding from the scope of most of the Act entities such as Home Depot or Lowe’s when those entities do no more than sell home improvement materials. In such a case, while the subcontractor who installs materials bought from the large retailer will be governed by the Act, the large retailer, in most particulars, will not be.

“HOME IMPROVEMENT”

The term “home improvement” is broadly defined to include most repair, replacement, remodeling, demolition, renovation, installation, alteration, conversion, modernization, improvement, rehabilitation and sandblasting work done in connection with land or a portion of land adjacent to a private residence, so long as the total cash price of all work agreed upon between the contractor and owner is more than $500.00. The term “home improvement” also includes construction, replacement, installation or improvement of driveways, swimming pools, porches, garage roofs, HVAC and solar energy systems, security systems, flooring, patios, fences, gazebos, sheds, windows, awnings and waterproofing.

However, the term does not include the construction of a new home or the sale of goods and materials by a seller who neither arranges nor performs installation work. The term also does not include the sale of services furnished for a commercial or business use or for resale if the service takes place somewhere other than at a private residence. Nor does the term include the sale of appliances, such as stoves, refrigerators, freezers and room air conditioners, which are designed for and are easily removable from the premises without material alteration. The term “home improvement” also does not include the services of a landscaper except to the extent that the services include any of the installations noted above.
The Home Improvement Consumer Protection Act only applies to work done in connection with a “private residence,” which term includes a single family dwelling, a multifamily dwelling consisting of not more than two units, or any single unit located within any multifamily dwelling, including condominiums and co-op units.

REGISTRATION REQUIREMENT

The first major restriction of the Act is set out at Section 517.3, which provides that “no person shall hold themselves out as a contractor, nor shall a person perform any home improvement without first registering” with the Bureau of Consumer Protection of the Office of the Pennsylvania Attorney General. This registration requirement is critical because the information required to be included in an application for registration includes not only the name and home address or any individual applicant or the officers, managers and general partner of any partnership, corporation, limited liability company or limited partnership applicant, but also such additional information as driver’s license number, Social Security number, and all prior business names and addresses of home improvement businesses operated by that individual, partner, officer, or manager.

In addition, in applying for such registration, the applicant must state whether the individuals making the application, even if applying as part of a larger business entity, have ever been convicted of any criminal offense related to a home improvement transaction, fraud, theft, a crime of deception or any crime involving fraudulent business practices, as well as a statement of whether the applicant has ever filed a petition of bankruptcy or, within the last ten years had a final civil judgment entered against the applicant or business in which the applicant held an interest that was related to a home improvement transaction. The contractor must provide proof of liability insurance covering personal injury in an amount not less than S50.000.00, and covering property damage caused by the work or the home improvement contractor in an amount not less than $50,000.00.

While the Act does not provide the Bureau of Consumer Protection with discretion to deny the issuance of a license to anyone who has paid the required S50.00 application fee and provided the required information, the Act does provide for public access to registration information (excluding Social Security number, driver’s license number and other such confidential information) by a toll-free telephone number and by posting on the Bureau’s internet website.

ADVERTISING REQUIREMENTS

When the home improvement contractor registers with the Bureau of Consumer Protection the contractor is assigned a registration number. Under Section 517.6 of the Act, this registration number must be included in all of the contractor’s advertisements, contracts, estimates and proposals created by the contractor after July 1, 2009. The registration number must be included not only in the more obvious forms of advertising, such as television, radio, newspaper and billboard advertising, but also on letterhead, business cards and promotional materials such as clothing and pens. In short, no home improvement contractor will be permitted to use any form of advertising or promotional material that does not allow the consumer to trace that contractor through a registration number to the Pennsylvania Bureau of Consumer Protection.

REQUIREMENTS AND PROHIBITIONS FOR HOME IMPROVEMENT CONTRACTS

In addition, the Act at Section 517.7 requires that in order for a home improvement contract to be valid and enforceable against the owner of residential real estate, that contract must be in the form of a signed writing bearing the contractor’s registration number. The contract must set forth the entire agreement, including, among other things, the approximate start date and completion date, a complete description of the work to be performed, the total sales price due under the contract, and the amount of any down payment required plus any amount to be advanced for the purchase of special order materials. In order to avoid confusion, the Act requires that the amount of the down payment and the cost of special order materials be listed separately. The Act also prohibits a contractor from changing the contract specifications without a written change order signed by both the owner and contractor. Further, the Act requires that any contract include a notice of the owner’s right to rescind the contract without penalty within three business days of the date of signing, regardless of where the contract was signed.

The Act also prohibits a home improvement contract from containing various terms, including the waiver of building code requirements, confession of judgment clauses, the waiver of a right to a jury trial, wage assignment clauses, provisions that the contractor be awarded attorneys fees and costs, and, perhaps most importantly, the waiver of any rights provided under the Act. It must be noted that even though a home improvement contract can be voided by the homeowner if it fails to contain required terms, or if it contains prohibited terms, the home improvement contractor would still have a right to recover the reasonable value of services for work he or she has actually performed if it would be inequitable to the contractor to deny him or her such recovery.

“HOME IMPROVEMENT FRAUD”

The Act at Section 517.8 also makes “home improvement fraud” a criminal offense, punishable as either a felony of the third degree or a misdemeanor of the first degree, depending upon the nature of the violation and the amount involved. “Home improvement fraud” is defined to include a number of related offenses, including the making of false or misleading statements to induce, encourage or solicit one to enter into a written or oral agreement for home improvement services, receiving advance payments for performing home improvement services and failing to perform or provide those services or materials when specified in the contract, with exceptions for force majeure or unforeseen labor strikes. The definition of home improvement fraud” also includes misrepresenting or concealing a contractor’s identity while soliciting a person to enter into an agreement for home improvement services, damaging a person’s property with the intent to induce, encourage or solicit a person to enter into a contract for home improvement services, misrepresenting an item as a special order material or misrepresenting the cost of any special order material, and directly or indirectly publishing a false or deceptive advertisement in violation of the Act. It must be noted that the definition of “home improvement fraud” is more extensive than noted above, but cannot be cited fully due to the confines of space. Home improvement contractors would be well advised to consult with counsel regarding their legal rights and prohibitions prior to the July 1st effective date of the new Act.

“PROHIBITED ACTS”

Finally, the Act sets forth a number of “prohibited acts” which, though not necessarily constituting crimes, can result in the imposition of civil liability. These prohibited acts include the failure to refund the amount paid for home improvements within ten days after demand if no substantial portion of the contract work has been performed at the time of the request, and if more than forty-five days have elapsed since the starting date specified in the written contract. Other prohibited acts include, but are not limited to, the abandonment or failure to perform, without justification, any home improvement contract engaged in or undertaken by a contractor, the deviation from plans or specifications without a written change order signed by the parties, advertising to perform a home improvement without intent to perform or charge for the home improvement as advertised and, for home improvements for which the total price is more than $1,000.00, receiving a deposit in excess of one-third of the home improvement contract price or one-third of the home improvement contract price plus the cost of any special order materials that have been ordered.

The Act also prohibits a home improvement contractor from changing the contractor’s name, address, liability insurance information or any other identifying information in a fraudulent or deceptive manner likely to cause confusion or misunderstanding without advising the owner in writing within ten days following any such change. The Act further provides that any violation of any of the provisions of the Act is deemed to be an Unfair Trade Practice under the Pennsylvania Unfair Trade Practices and Consumer Protection Law. Thus, any violation of the Act is subject to the award of not just actual damages, but also, potentially, treble damages and attorneys’ fees.

While it is likely take years for the courts to flesh out the details of the Act and interpret its many provisions, there can be no doubt that the Act will have broad consequences for both home improvement contractors and home owners. Meanwhile, Pennsylvania home improvement contractors should consult with their legal counsel before July 1, 2009 to ensure that they are in compliance with the Act prior to its effective date.

Our attorneys at Wolf, Baldwin & Associates are able to answer your questions regarding the new Pennsylvania Home Improvement Consumer Protection laws. Our lawyers are experienced in consumer protection cases, representing both consumer and contractor. Please click here to contact us to resolve any questions that you may have.

PA considering role in real estate property tax assessments

2009-05-26T10:58:00.000-07:00

A recent decision by the Pennsylvania Supreme Court forcing Allegheny County to reassess real estate property values has highlighted an issue that has angered many property owners across the state. The ruling states that the base year system for property values, with no set review interval, is unconstitutional because it doesn't accommodate changes in property values over time. Currently, property value reassessment is handled at the county level and is done at irregular intervals. Butler County for example hasn’t reassessed in 40 years. Since reassessment often means an expense to the county and an increase in property taxes (thus raising the ire of the tax payers), it is not something counties are eager to do to often.

State Representative John Yudichak (D) has a plan to fix these issues and bring equity to the assessment of property values across the state. An article in the Pittsburgh Post-Gazette gives details on a proposal he’s working on to create a State Office of Reassessment. He understands the difficulties in reassessment as his county – Luzerne – recently reassessed at a cost of $9 million. The county hadn’t been reassessed in 40 years and now many residents are taking the county to court to fight the higher taxes. Yudichak believes that a state wide standard for reassessments would alleviate some of the inherent problems of the current system. “We are trying to achieve fairness with property valuation, higher taxes aren’t the goal” he’s quoted as saying in the article. His is an idea that seems to be gaining momentum. The principle of his idea seems to have wide spread support; including Governor Rendell’s office, Allegheny County Executive Dan Onorato, and even Republicans such as Bucks County’s Scott Petri. There is some concern whether it can be done legislatively though. The Legislative Budget and Finance Committee has been asked to study what other states have done and make recommendations.

If you feel your property has been unfairly assessed, please contact us to make sure your rights in real estate law are being represented.

PA Unemployment and Claims Dip, Forced Furlough May Be Cause Though

2009-05-07T14:14:00.000-07:00

34,000 people filed for unemployment benefit claims last week, which is down from 36,000 in the previous week. Still, more than 364,000 residents of Pennsylvania continued to receive unemployment compensation benefits. While that figures shows an overall drop about about 7,000 from the previous week, it is worthy to note that these figures are still twice as high as they were at this time last year.

One possible reason for the drop in unemployment numbers and unemployment compensation claims filed is the rise in the practice of forced furlough. Many Pennsylvania employers have used the furlough program as a cost-cutting measure for the company without actually breaking ties and terminating the employment of the worker. A furlough, in this respect, is an unpaid leave that the employee is forced to accept. David Smith from the Department of Labor and Industry, recently told the Pittsburgh Post-Gazette:

"If workers are forced to take a furlough week, "They should file a claim right away, as soon as they experience the furlough," said Mr. Smith.

Signing up beginning with the first furlough week is important because the worker will be eligible for unemployment benefits during the next period of unpaid leave, as long as it occurs within the next 12 months.

Some people make the mistake of not signing up during that first week because they have been told there's no point since benefits aren't accrued until the second week of unemployment.

That's true, but the unemployment clock starts ticking after a claim is filed.

If someone doesn't file a claim until the second week of furlough, it's like the first week didn't count."

Even though the number of claims have dropped slightly, there is still a tremendous burden on the state's unemployment compensation fund and they have been forced to borrow more money to cover claims. While this is providing immediate relief to workers, it will carry a long term burden of having employers face higher tax rates to pay back the Federal loans.

While the situation appears dire, it is important for workers who feel they have an unemployment or workers compensation claim are aware that there is still funding for them and should not be discouraged. Employers, including cities and states, take out unemployment and workers compensation insurance coverage policies that ensure coverage.

Employers are not required to have legal representation in Unemployment Compensation cases..However, to ensure that you are adequately represented, and are exploring all possible options of entitlement, it is recommended that you seek council or adequate representation that will represent your best interests. The staff at Wolf, Baldwin and Associates is available to you to discuss your legal options during these times. If you feel that you may need representation, you are free to contact us.

Unemployment rates hit 16 year high, compensation benefits extended

2009-04-22T00:37:00.001-07:00

The recently released report from the Department of Labor shows that Pennsylvania's unemployment rate has risen to 7.8%, which is the highest it has been since September of 1992. The number of workers filing for unemployment compensation rose 13,000 to 499,000. While Pennsylvania's unemployment compensation claim figures are not as dire as New Jersey's, 8.3%, or the national rate of 8.5%, they are still bleak enough to qualify the Commonwealth of Pennsylvania for Extended Unemployment Benefit coverage which allows residents to qualify for an additional 13 to 46 weeks of unemployment compensation.

It is important that families are ensuring that they are receiving the maximum benefits to cover their needs. If you feel that you have been denied unemployment or workers compensation unfairly, then you should contact our experienced team of lawyers. There are also additional tools available to residents of the Commonwealth who are looking for assistance, or a new beginning. Recently, the Commonwealth of Pennsylvania has launched a website to assist the unemployed in their job search. Also, Democratic Senator Bob Casey of Pennsylvania is pushing for a new law that aims to pay community colleges nationwide $1,000 per student to retrain laid-off workers. Casey's bill would set up the Unemployment Tuition Assistance Program as part of the Department of Labor (DOL). People filing for unemployment benefits would be notified that tuition assistance may be available to them, and colleges that volunteer to participate would register with DOL for reimbursement, which Casey says would come from existing funds already allocated to job retraining in the department's budget.

Updates on Unemployment in Pennsylvania

2009-04-15T14:50:00.000-07:00

With the past month's unemployment figures for Pennsylvania not yet released, it is of note that New Jersey's has risen to 8.3%. While Pennsylvania is still below the national average, the rates have continued to climb in recent months. Of historical note, long time area employers Wolf, Block, Schorr & Solis-Cohen L.L.P, and Northeastern hospital in Port Richmond closed recently.

Every part of the Philadelphia metropolitan area is affected, with equally tough times in Philadelphia and in New Jersey's rural Salem County on the edge of the metro market. One in five of the region's jobs are in Camden, Gloucester and Burlington Counties, but in one year, those same counties have lost a disproportionate share of the work -- nearly 31 percent. Mark Zandi at Moody's Economy.com expects the national unemployment rate to be as high as 9.8 percent by this time next year, with this region's rate not far behind. The dire economic environment has bankrupted unemployment programs locally, forcing them to borrow federal funds.

In the world of Unemployment Benefits in the state of Pennsylvania, there is some good news for those struggling to find employment. The state has extended unemployment benefits. As part of the American Recovery and Reinvestment Act of 2009, also known as Stimulus 2009, there will be a few changed to extended unemployment compensation in Pennsylvania. One of the qualifiers for this program is that the state's unemployment race must be over 7%, which it has. This program offers up to an additional 13 weeks of extended unemployment compensation benefits to those who are qualified and have exhausted all rights and balances on regular or Emergency Unemployment Compensation. The benefits are only payable as long as the state remains in a high unemployment rate. When the unemployment rate decreases as more individuals find work, the Extended Benefit Period will end.

You can watch the growth of unemployment by county in Pennsylvania since the start of the recession on the by clicking on this link

Unemployment Tools and Considerations for people of Pennsylvania

2009-04-02T16:09:00.000-07:00

According to this recent article in the Reading Eagle, unemployment in Berk's County rose to 8.4 percent in the month of February, which is up a full percentage point from the January figures and is the highest recorded unemployment mark for that county since August 1983. The figures, release by the state Department of Labor and Industry, show that the state of Pennsylvania's jobless rate has increased 3.1 percentage points to 7.5 percent overall since February of 2008. With that increase, Berks county now has the third highest unemployment rate of the state's 14 major markets. The total number of Berks residents without jobs as of February was 17,300 which is an increase of 2,000 from the previous month and is 8,000 higher than a year ago at this time. The only areas with higher unemployment totals are the two tied at the top, Scranton/Wilkes-Barre and Williamsport.

Since this is a rising cause for concern to so many locally, we'd like to cover a few recent topics regarding these issues and perhaps provide a few tools that you may find helpful to you.

A controversial topic has risen lately with how the unemployed are forced to use their unemployment compensation. People receiving unemployment compensation benefits are forced to use an 'unemployment benefit card', which is similar to a debit card. On the surface that seems harmless and effortless enough, except that recipients are now being charged bank fees to use those cards. This effectively reduces the amount of money that the people are able to receive in unemployment compensation, or child support for that matter.

With some employers facing tough decisions regarding layoffs in the coming weeks, there are some additional considerations that they are to consider regarding the cost of laying off employees. The funding for Unemployment Compensation comes from a tax that employers pay into the Unemployment Compensation Trust Fund. As mentioned in this article, "in the Mid-Atlantic region, federal and state unemployment compensation costs employers an average 25 cents per hour per employee, or 0.12 percent of total payroll." The laying off of employees can prove to be more expensive than one might believe because the government assesses businesses based on the number and frequency of job reductions. Despite business struggles, the bottom line is that it may well be cheaper in the long run to retain employees so as to avoid an increase in cost for Unemployment Compensation insurance.

We've also come across a few articles that may serve as beneficial tools for you. If you click the link here, you will be taken to a brief breakdown on how to file for unemployment compensation. At this link here, there is a nice article on a family surviving on a severance package.

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Issues in Collecting Child Support

2009-03-27T14:55:00.000-07:00

The economy has obviously put a strain on all facets of life. One issue that may be of growing concern is the ability to collect child support for many parents. Wage garnishment in order to provide regular child support is is nothing new to most employers. The orderly process of keeping children and their parents funded is a vital component to the welfare of the state and the children themselves.

Income sources for child support are not limited to payroll deductions, they can also be drawn from insurance claims if there is a past-due amount of child support owed.

You can read more in our article entitled "Collection of Child Support From Employers and Insurers, located at the 422business.com website. You can also read some more thoughts about the collection of spousal and child support in Pennsylvania at our site.

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Twitter and social networking can pose problems for legal system.

2009-03-19T13:35:00.000-07:00

Technology moves quickly. The legal system does not always move so swiftly, but it is being forced to address a fluid situation in which technology may well be compromising the integrity of the judicial system.

In recent weeks, there have been several examples of this coming to light. In Arkansas, a juror was posting 'tweets'(the messages sent using the Twitter program) during breaks to give updates on the trial. The defendant, Russell Wright and Stoam Industries, had lost a $12.6 million lawsuit. His legal representation has filed an appeal of the findings claiming that juror Jonathen Powell was not fair and impartial. Wright's attorneys are basing this claim on the content of Powell's tweets. One of these messages read ""just gave away $12 million of someone else's money" and later went on to add that no one should buy Stoam "now that their wallet is 12M lighter." The defense is claiming that the juror also used the internet do research about the case. Powell has not denied using the internet to research, but now claims that he was 'looking up stuff about being a juror.'

In more local news to those of us in the Pottstown, PA area, is the federal corruption trial of former Pennsylvania state senator, Vincent J. Fumo. Before the jury reached a verdict, Fumo's defense attorneys have demanded the judge declare a mistrial in the case because a juror had been posting messages using both Twitter and Facebook regarding the trial. The judge ruled that the juror could stay and Fumo was convicted on all 137 counts. However, his attorneys have already expressed the desire to appeal the decision based upon their belief that the juror had reached a decision before the conclusion of the trial.

Just last week, a juror in a Florida federal drug trial admitted to the judge that he and other jurors had been researching the case on the internet. It turns out that a total of nine jurors had researched the case on Google. Federal judge, William J. Zloch, had no choice but to declare a mistrial. “We were stunned,” said a defense lawyer, Peter Raben, who was told by the jury that he had been on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

It would appear that, at a minimum, jury instruction will now have to be changed to include the use of Twitter, Facebook and internet based search engines such as Google.

The technology is certainly no stranger to the Judicial System. Twitter can be a tremendous resource for networking and information exchange. In fact, the Philadelphia court system has its own twitter. Now we must move past simply using the technology to reap its benefits and come to terms with the full ramifications of its uses. The three cases above have resulted in one mistrial while the other two will likely end up with lengthy, and costly, appeals being filed. The end result is an added burden on the judicial system and a drain on tax-payer dollars.

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Rising Unemployment numbers in PA

2009-03-11T09:35:00.000-07:00

According to the Philadelphia Business Journal, Pennsylvania's unemployment rates are on the rise.

The numbers reflected by this published report are both sobering, and alarming.

-Unemployment rose to 7 percent in January.

-PA lost 3,500 jobs in January.

-The number of people looking for work in the civilian sector has risen to 6,446,000. That is an increase of 5,000 from the previous month.

The Pennsylvania Unemployment Act offers some help in these difficult times by providing weekly benefits that are based upon length of employment and total amount paid into the unemployment system.

The law firm of Wolf, Baldwin and Associates, P.C. can help you receive benefits that are due to you. The variety of issues that determine whether or not you are eligible for unemployment benefits are complex and unique to your own situation. We cover a variety of these concerns in our article regarding "Unemployment Compensation." Feel free to contact us at our Pottstown, PA or West Chester, PA offices.

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Unemployment and Workers Compensation resources

2009-03-05T10:08:00.000-08:00

In this week’s blog, I thought I would bring to you a list of articles and resources that you may find useful during these difficult times.

Do you have questions or concerns about your eligibility for Unemployment Compensation in the state of Pennsylvania? Then you may want to check out our article regarding “Selected issues in Pennsylvania Unemployment Compensation Law."

Have you ever wondered what is in your Personnel Files? You do have rights to review certain employment records. You can protect yourself and your identity as an employee. If you would like more information on this subject, feel free to review our article “Employee Rights under the Personnel Files Act of PA.”

If you feel that you may need to start a workers compensation claim in Pennsylvania, you may want to check out our article on that very subject here. This should give you a good guideline and starting point to pursue your claim.

Finally, for my fellow lawyers and law professionals who may be reading this blog, I found an interesting article this week written by Gina F. Rubel at the National Law Journal entitled “To Friend or Not to Friend: Social Media for Lawyer.” I found it to be both useful and interesting; I’d highly recommend that you read it.

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PA Workers to receive boost in Unemployment Compensation

2009-02-27T14:44:00.000-08:00

Pennsylvania workers will be receiving a $25 boost in their Unemployment Compensation soon. According to today's article in The Mercury, the State Department of Labor and Industry have announced that the additional funds, while they are effective now, will not be reflected on this week's unemployment check. The workers of Pennsylvania should expect the additional $25 to be reflected on checks in the weeks to come.

If you find yourself recently unemployed, and you have questions about the amount of unemployment benefits that you may qualify for, then contact us to speak with an attorney who takes great pride in representing you and your family.

Also, if you or a loved one has been injured performing job related activities feel free to contact us to learn more about how you can begin a workers compensation claim.

At Wolf, Baldwin and Associates, P.C., we understand that in uncertain times such as this that there are more questions than answers. We pride ourselves in our direct communication and relationships with our clients.

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Unemployment Compensation and Coverage in Pottstown, PA

2009-02-18T03:10:00.000-08:00

According to this recent article in The Mercury of Pottstown, PA there are rising unemployment numbers in the Chester County area. In fact, with a reported 8,500 Chester County residents without a job, those figures show a nearly fifty-percent increase compared to the Unemployment rates last year.

In uncertain times like these, it is important that employees ensure their legal Unemployment Compensation rights are being protected. There can be a variety of considerations and factors that may effect your unemployment compensation rights. If you find yourself concerned for your future employment, if you have been recently terminated, or if you have been laid off, then it is imperative that you make sure you and your family are protected. You can take the first step in protecting your rights by contacting the law firm of Wolf, Baldwin and Associates, P.C. We are the law firm that will fight for your unemployment compensation rights in Pennsylvania.

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Do I qualify for worker's compensation in PA?

2009-02-06T00:39:00.000-08:00

Do I qualify for worker’s compensation?

This is a question asked that, when asked, is far too often, and met with uncertainty or unclear information. The answers do not come as easy or readily as you would like. At Wolf, Baldwin and Associates, we pride ourselves on making sure our clients feel at ease during these troubled times.

First, you should ask yourself if any of these questions could be answered ‘yes.’

Have you have not received benefits after being injured on the job, or even if you contracted as disease while performing your job duties? Has a family member, or close friend died from an injury or disease that took place while on the job, or as a result of performing their job? Are you receiving benefits from a job related injury or illnesses that you believe are less than you are entitled to? Are you currently collecting benefits and would like to discuss a settlement?

If you have answered ‘yes’ to any of these questions, then you need to contact the Workers Compensation Attorneys in Pottstown, PA, Wolf Baldwin and Associates.

We handle all of your worker’s compensation needs. If you find yourself needing to file a claim petition, termination petition, suspension petition, modification petition, penalty petition, reinstatement petition or fatal claim petition then you need to contact Wolf, Baldwin and Associates, the leader in Workers Compensation that works for you during your toughest hours.

We handle Workers Compensation cases in Pennsylvania. We have offices conveniently located in West Chester and Pottstown, PA. You can rest assured that you can contact us and we will fight for you and your rights.

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PA Workers' Compensation Lawyers - We Work For Injured Workers in Pennsylvania

2008-11-07T11:07:00.000-08:00

The attorneys of Wolf, Baldwin & Associates, P.C.. have litigated all kinds of PA worker compensation cases over the years. We handle wage loss claims, claims for medical benefits, occupational disease claims, scarring, and fatal claim cases. Workers' compensation is a specialized area of the law in Pennsylvania, and the attorney you choose must of course be well versed in the law. But it is not enough that the lawyer knows the law -- the client must feel comfortable talking to the lawyer, and must be confident accepting the lawyer's advice.

It is extremely important that our workers' compensation clients feel comfortable talking to us. Injuries on the job can be devastating to both our clients and their families. There are many questions which need to be answered quickly after a work injury: What doctor can I see? How do I file a claim? What happens if I miss work? Can I be fired? What if my injury is permanent? What if a defective product or someone other than my employer caused my injury? Clients need answers to their questions quickly, and as a workers' compensation case progresses there will always be many more questions which require answers. At Wolf, Baldwin & Associates, P.C.., we answer your questions promptly, and we do our best to secure wage loss payments and medical benefits quickly for our clients. If it becomes appropriate to settle your PA workers' compensation claim, we negotiate with the insurance companies and their lawyers to reach fair settlements.

Another aspect of being comfortable with your lawyer is an open line of communication. We make ourselves available to our worker comp clients and prospective clients. During normal business hours, you won't get voice mail if you call our office. If one of our attorneys is not available, a person, not a machine, will take your message. We do our best to answer our phone calls and e-mails within twenty four hours, whether you are a new client or a claimant whom we have been representing for years.

It is important to understand that in Pennsylvania most lawyers charge contingent fees in workers' compensation cases. This means that we get paid a fixed percentage of what we recover for you out of your wage benefit, otherwise known as your indemnity benefit. Our fees must always be approved by a Workers' Compensation Judge. When a client is being paid everything to which he or she is entitled, and we do not have to file any petitions or defend any petitions filed by the worker compensation insurance company, it is not unusual for us to advise that client for months or even years without being paid. Your consultation in worker comp cases is always free. Therefore, it makes sense to talk with a professional when you have questions. It will cost you nothing to ask us questions. As with all cases we handle, you will receive a fee agreement in writing if you choose us to represent your interests.

The attorneys of Wolf, Baldwin & Associates, P.C., are no strangers to Pennsylvania workers' compensation courtrooms. We are ready, willing, and able to go to battle for our clients, if necessary. Insurance companies will always be represented by experienced workers' compensation attorneys. You deserve expert advice too. If the insurance company unfairly denies you your rights, we will fight the workers' comp insurance carrier for your right to receive Workers' Compensation in PA.

If you or a loved one has been injured or contracted a disease on the job and you are not receiving benefits, please contact us.

If you are receiving benefits and are not sure if you are getting everything to which you are entitled under the law, please contact us.

If a loved one has died from an injury or disease sustained on the job, please contact us.

If you are collecting benefits and would like to discuss a settlement (Compromise and Release) of your case, please contact us.

If you previously settled your wage benefit in a commutation and you would like to settle the medical portion of your claim, please contact us.

If you need to file a claim petition, fatal claim petition, penalty petition, or reinstatement petition, or if you need to defend a termination petition, suspension petition, or modification petition, please contact us.

Thank you for visiting our website. We look forward to hearing from you.

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The Coming and Going Rule

2008-10-27T13:31:00.001-07:00

If I get hurt driving to or from work, can I get Workers’ Compensation Benefits?

The Coming and Going Rule
By Daniel E. McCabe, Esq.
Wolf, Baldwin & Associates, P.C.

Employees in Pennsylvania often inquire about whether workers’ compensation benefits are payable if they are injured while on the way to or from work. In general, employees injured while commuting to or from work will not be eligible for workers’ compensation benefits. In workers’ compensation parlance this concept is known as “the coming and going rule.” However, there are several exceptions to this rule of thumb. This article will explore some exceptions and the various considerations that employees and employers should consider in these situations.

The exceptions to the coming and going rule fall in four general categories:

(1) the employee has no fixed place of work (i.e. a “traveling employee”); (2) the employment contract includes transportation to and from work; (3) the employee is on a special assignment for the employer; and (4) special circumstances are such that the employee was furthering the business of the employer while commuting.
The typical situation occurs when an employee gets in a car accident on the way to work. Unless the employee is considered a “traveling employee” the courts will generally rule that no workers’ compensation will be due because that employee is not yet in the course and scope of employment. The most succinct judicial summary of the law relating to the course of employment appears in W.C.A.B. (Slugenhaupt) v. U.S. Steel Corp., 376 A.2d 271 (Pa.Cmwlth. 1977). In that case the Commonwealth Court outlined the following:

Injuries may be sustained in the course of employment in two distinct situations: (1) where the employee, whether on or of the employer’s premises, is injured while actually engaged in the furtherance of the employer’s business or affairs, or (2) where the employee although not actually engaged in the furtherance of the employer’s business affairs (a) is on the premises occupied or under the control of the employer, or upon which the employer’s business or affairs are being carried on; (b) is required by the nature of his employment to be present on his employer’s premises; and (c) sustains injuries caused by the condition of the premises or by operation of the employer’s business or affairs thereon.

The case law regarding the definition of “furtherance of employer’s business” is extensive; however, generally, when an employee merely commuting to or from work is not furthering the employer’s business. On the other hand, if the employee is a “traveling employee” then the course of employment is much broader. The question of whether an employee is a “traveling employee” is generally defined by whether the employee has a fixed office that he or she goes to every day. If not, the employee is considered a traveling employee. An example would be a cable repair person. If he or she travels straight from home to a customer’s home and only checks in with the office on occasion, the employee is most likely be a traveling employee. Further, if that employee were to get hurt on the way to his or her first job, the injury would fall outside of the “coming and going” rule, and be compensable.

The more difficult question arises in situations where it is unclear whether the employee is truly a traveling employee. For example, in the above situation, if the cable repairman had to travel to a main office every day before proceeding out to travel for the entire day, would he be considered a “traveling employee?” What if he drives a company work van every day? What if that van has the company logo and phone number on the outside? The law gets a little grey in these situations. Technically the employee is reporting to a fixed office, but he spends nearly the entire day on the road, and frequently must report directly to customers’ residences. Further, he drives a van with a logo and phone number, and arguably is furthering the employer’s business by advertising every time he drives. Plus, if the employee can not use the van for any other purpose but work (as part of his employment contract), it could be argued that the second he steps in the van, he is furthering the employer’s business because it is being used for work purposes only, especially if there is a contract for employment governing the use of the vehicle.

For a traveling employee to be denied benefits based on the coming and going rule the employer must show a distinct break in the employment duties. Pfizer, Inc.v. WCAB (Gresham), 568 A. 2d 286 (Pa. Cmwlth. 1989). Thus, for a traveling employee, if an accident occurs on en route to vacation, but before a telephone call into the office it could be found compensable. However, if that same employee stops at a store to pick up food or other non-work related items before traveling home, he may be found to have broken from his trip home enough to be considered outside of the furtherance of the employer’s business.

An employee might be considered on a “special assignment” and could be in the scope of employment even though normally the coming and going rule might apply. For example, an employee injured on the way home to have dinner before attending an evening appointment for an employer was considered in the course of employment under the special mission exception to the “coming and going” rule. The court found that his work duties had not ended that day because of the evening appointment.
The case law in this area is extensive, and this article covers the general rules as well as the general exceptions. If an employee or employer were to presented with this type of issue it is vital to discuss it with an attorney who is well versed in Pennsylvania workers’ compensation law.

Daniel E. McCabe, Esq., is an associate in the law firm of Wolf, Baldwin & Associates, P.C.. 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.

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Specific Loss Benefits in the Pennsylvania Workers’ Compensation System

2008-10-17T14:25:00.000-07:00

Most employers and employees know that if a worker is injured on the job, he or she is entitled to benefits for lost wages in addition to medical treatment related to the injury. But many people do not realize that there is a subset of wage loss benefits, called “specific loss” benefits, that are payable to injured workers even if they do not miss any significant time from work after their injury.

Specific loss worker's compensation benefits are available for amputations or injuries resulting in the permanent “loss of use” of a certain body part “for all practical intents and purposes.” This latter phrase is defined as a loss more severe than one that would allow the injured worker to use the injured body part in his or her employment. It does not mean that the body part is completely useless. The determination of “loss of use” is a question of fact for a Workers’ Compensation Judge to decide and is shown through the testimony of the injured worker, his doctors and/or physical therapists, and even family and friends. The question of whether the loss of use is “for all practical intents and purposes” is also a question for the Judge to decide, but is based upon an interpretation of the law surrounding this types of claims.

Section 306(c) of the Act, §77 P.S. 513, outlines the body parts for which specific loss worker's compensation benefits are payable. These include fingers, toes, hands, legs, arms, eyes, etc. Benefits are also payable for hearing loss attributable to the injured worker’s employment, and disfigurement benefits are payable for scarring of the face, head or neck which is serious, permanent, results in an unsightly appearance and is not usually incident to the claimant’s employment. The intricacies of these two categories are beyond the scope of this article, but are vitally important details in ascertaining an injured worker’s right to redress for his or her injury.

The date from which specific loss worker's compensation benefits and the healing period benefits are payable begins upon the day the Judge finds the injury to be a specific loss pursuant to the above definition. This determination is usually obvious for amputations, but not necessarily so for other injuries resulting in the permanent loss of use of a body part. Accordingly, it is critical to research both medical and factual information surrounding the injured worker’s ability to use the body part in question.

The amount of a specific loss award (including the amount of the healing period award) is determined by using the tables outlined in Section 306(c) of the Workers’ Compensation Act to determine the number of weeks payable for a particular specific loss, and multiplying by the injured worker’s weekly compensation rate (typically two-thirds of the worker’s pre-injury average weekly wage). Specific numbers of weeks are set forth in the Act for losses of each listed body part.

To illustrate these concepts, let us discuss the case of Ernie Exampleman. Ernie worked for a company installing hardwood floors, and earned $900.00 per week. While working one afternoon at a customer’s home in January of 2006, the saw Ernie was using caught on a knot of wood and kicked backward, cutting off his index finger and thumb on his left hand. Despite the best efforts of several doctors, Ernie lost his entire left index finger, but they were able to save his thumb. Unfortunately, Ernie was left with very little use of his thumb.

According to the Act, Ernie is clearly entitled to specific loss worker's compensation benefits for his lost index finger. Section 306(c)(10) awards 50 weeks of benefits for this loss and an additional six weeks attributable to a healing period under Section 306(c)(25). Assuming Ernie is out of work for the full six weeks as a result of this injury, he would receive 56 weeks of benefits at his weekly compensation rate of $600.00 ($900.00 x 2/3). In total, Ernie will receive $33,600.00 for his lost index finger.

What about his thumb injury? The question to be determined is whether he has permanently lost the use of his thumb for all practical intents and purposes. As stated previously, this is a question for a Judge to decide. For the sake of argument, say the Judge finds that the thumb is compensable as a specific loss award. How does this finding affect the overall amount of benefits Ernie will receive for his injuries?

Logically, we might assume that Ernie would be entitled to two specific loss awards and two healing period awards. But that is not the case. The Act awards Ernie both of the specific loss awards (50 weeks for the finger and 100 weeks for the entire thumb), but only the longer of the two healing periods – 10 weeks for the thumb. In total, Ernie will receive 160 weeks of benefits for this injury.

The law of specific loss worker's compensation benefits has many twists and turns. Each individual case is unique and must be investigated in detail to determine the proper amount of compensation payable to the injured worker. Employers who have questions regarding their injured workers’ rights to benefits should contact their workers’ compensation insurance carrier or the defense attorney assigned to the worker’s case by the insurance company. Injured workers should their injuries with an attorney well-versed in Pennsylvania workers’ compensation law.

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