Articles by Our Attorneys

It’s 2 a.m. and you are wide awake, stewing. Today your new neighbor had your shared boundary line surveyed – from the look of the metal pins, your neighbor is claiming about two feet of land you’ve always understood to be your property. You feel the urge to get out of bed, march out there and rip out all of the survey pins – why should you make it easy for him to try and take part of your property?

What do you do?

While removing the survey pins might give you instant gratification, it is also illegal. Under the Pennsylvania Crimes Code section titled “Destruction of a survey monument” – sandwiched between more exciting-sounding sections titled “Ecoterrorism” and “Illegal dumping of methamphetamine waste” – it is a summary offense to intentionally remove, destroy, or otherwise interfere with a permanent survey monument such as a pin that was placed by a professional land surveyor. That is just if you had no additional motive for your intentional act. If it is determined that you removed or interfered with a permanent survey monument in order to call a boundary line into question, this could earn you a second-degree misdemeanor.

The potential penalties and costs for removing or interfering with survey monuments are stiff. In addition to whatever criminal penalty is imposed for the offense itself, the Crimes Code also provides that you are liable to your neighbor for the cost of re-establishing the survey monuments by the surveyor. Worse still, the Crimes Code provides that you are liable for “all reasonable attorney fees” – if you think it is expensive to pay your own attorney, just wait until you are also paying for your neighbor’s attorney.

If prosecuted under this section of the Crimes Code, you may argue the affirmative defense that the survey monuments were “improperly placed” by the surveyor. However, it is almost certainly not worth removing the monuments thinking that you will succeed on this defense. First, the surveyor may of course be correct in their placement of the monuments. Second, it is easier and far less expensive to simply not remove the monuments in the first place and, therefore, not be in a position where you are defending against a criminal prosecution while at the same time engaged in a civil action that may need to be filed in order to resolve the underlying boundary line dispute.

So, let’s go back to you stewing in bed at 2 a.m. Instead of marching outside to take out the survey monuments, take a deep breath. Then, once you get some sleep, call a land use attorney. Depending on the circumstances, the attorney may advise you to start by hiring a licensed surveyor to perform your own survey. A civil action may ultimately be necessary to resolve the boundary line if you and your neighbor cannot reach an agreement. However, at least you will not be also be defending against a criminal prosecution for a decision you made while sleep-deprived at 2 a.m.

If you have questions about your rights concerning your property lines or other land use or zoning issues, you may contact Matthew McKeon at [email protected], or by telephone at 610-840-0225. This article provides a general overview of the law. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

A quickly emerging topic in the divorce world is how divorcing couples deal with cryptocurrency in equitable distribution. When dividing their marital estate, divorcing couples must value assets like cars, houses, businesses, and other personal property. Given the rise in popularity and sheer value of some cryptocurrencies, these digital assets should be examined and considered like any other more “traditional” asset in equitable distribution. Cryptocurrency provides unique challenges to divorcing parties, lawyers, and courts with respect to locating, valuing, and ultimately dividing cryptocurrency when couples split.

Cryptocurrency, in a very broad sense, is a digital form of currency that is not held in or insured by any physical bank. Some better known examples of cryptocurrency include Bitcoin and Ethereum. Cryptocurrency is a relatively new form of currency that is not widely understood, hardly regulated by the government, and does not exist in physical form.

One challenge cryptocurrency poses in divorce is that it may be hard for one spouse to even know that the other spouse owns cryptocurrency, let alone know where their spouse is holding the cryptocurrency in its digital form, or what their spouse’s cryptocurrency is worth. There are ways to track cryptocurrency transactions, but the more traditional ways of monitoring financial transactions like bank statements, ledgers, or bank account numbers will be of little use.

Another difficulty cryptocurrency poses in equitable distribution is determining the value of these digital assets. Cryptocurrencies are notoriously volatile and can gain and lose value rapidly on any given day. Like certain stocks, this makes it even more important that divorcing parties know at what point in time assets like cryptocurrency will be valued for equitable distribution purposes.

Cryptocurrency is a new, cutting edge form of digital commerce and requires attention and skill to handle in a divorce/equitable distribution situation.

If you have questions about your divorce involving cryptocurrency or other digital assets, call Brian directly at 610-840-0221 or via email at [email protected].

Parents often ask whether their child has a say in determining custody. In Delaware, the wishes of the child are one of eight factors the Judge must consider in determining custody. In custody cases involving very young children, the wishes of a child are rarely significant. Instead of testifying like any other witness, children are interviewed by the Judge outside the presence of the parents. The Judge ultimately determines whether to interview the child, and if interviewed, what to ask.

As children age, their wishes are generally given more weight. What weight is given depends upon the age and maturity of the child, the reason for any preference in custody, whether and to what extent a parent has attempted to unduly influence the child’s preference, and other factors. There is no magic age where a child’s wishes are dispositive in determining custody. If a child is available to be interviewed, parents can testify to statements the children have made so long as reasonable notice of the statement is provided to the other parent in advance. The child interview is recorded, is part of the Court record, and can be listened to after the interview.

Parents with questions regarding the impact of their children’s wishes on custody should contact one of our attorneys. We are experienced in assisting parents in all types of custody cases, including those where children are interviewed.

Patrick J. Boyer concentrates his practice on family law. He advocates in various areas including, but not limited to, divorce, property division, alimony, child custody and visitation, child support, and domestic violence. In addition, Patrick assists his clients with issues involving guardianship and third-party visitation. He is licensed in Delaware and Pennsylvania and works out of the firm’s Centreville, Delaware office.

Grey divorce refers to the societal phenomenon of couples divorcing after mid-life. Although overall divorce rates are currently steady, if not decreasing, divorce among the population greater than fifty years of age continues to increase year over year.

In 2004, the American Association for Retired Persons (AARP) released a groundbreaking study on divorce titled The Divorce Experience: A Study of Divorce at Midlife and Beyond. The study took a deep dive into the circumstances and impacts on men and women divorcing as midlifers and older adults. In the subsequent years, more research, including the tracking of rates and trends, has been conducted by government agencies such as the U.S. Census Bureau and the Centers for Disease Control. Of the various age groups tracked, those aged 55-64 are far outpacing any other group in terms of overall divorce rate. This age group has seen its rate triple since the data was first tracked in the late 1990s. This phenomenon has coined several nicknames such as “silver splits” and “diamond divorces” but it is most commonly referred to as grey divorce.

Divorce among this population requires a careful analysis of the facts and circumstances at hand as the individuals involved are either at, or have just completed, their highest earning years, and are on the path toward retirement – meaning whatever monies are distributed, are not likely to be easily replaced. Grey divorces often require in-depth consideration of factors surrounding the liquidity and tax implications of investment and retirement accounts, the valuation of business interests and tangible property such as jewelry, fine art, and car collections. Securing income streams to guarantee a comfortable retirement is also of utmost importance.

The process also doesn’t end upon the issuance of the divorce decree. Careful attention to detail must be paid on the back end of the divorce process such as: ensuring accuracy and updating of estate planning documentation, designation of retirement and life insurance beneficiaries, and the finalization through transference and assignment of financial accounts.

Most importantly, a client needs a knowledgeable and experienced family law attorney to navigate them through the uncertain of divorce. For more information on Grey Divorce, or if you are interested in filing for or have been served with a divorce action, contact Michael Rovito at (610) 840-0241 or [email protected] to schedule a consultation.

In normal times, negotiating a commercial real estate lease is a substantial undertaking. Commercial leases carry long terms (often ten years with renewal periods) do not have early termination provisions, and some if not all of the costs associated with operating the property are passed along by the landlord to the tenant. The COVID-19 Pandemic severely impacted commercial real estate, leaving vacancies, defaulting tenants and also tenants not paying for a time after invoking force majeure clauses. As the economy reopened and businesses moved back to their commercial space or entered into leases for new commercial space, the high inflation of the last several months makes the negotiation of a new lease (or the renegotiation of an existing lease where this is possible) an even higher stakes undertaking.

Commercial leases for real estate are often triple net leases, meaning that the cost for real estate taxes, insurance and operating expenses are passed on to the tenant. Typically, there may be an escalator for base rent of a fixed percentage from year to year; and also a similar escalator or cap with regard to operating expenses for the property. In an era of low inflation, these escalators and/or caps would usually be a low fixed rate typically 2 to 3 percent for an escalator for base rent and a cap on operating expenses of 5 to 6 percent.  Landlords and tenants could link the escalator/cap, to the consumer price index to cushion against fluctuations in inflation. Doing so, however, eliminates the certainty of having a fixed escalator/cap, and has the potential to create substantial uncertainty for the landlord and tenant with regard to their future expenses. In an era of low inflation, a fixed escalator/cap was commonplace.

The current high rates of inflation create a dilemma for both landlords and tenants. If inflation remains high, an escalator/cap negotiated at too low a level would have an adverse financial impact to the landlord; while an escalator/cap negotiated too high could have a similar adverse financial impact on the tenant. While the uncertainty of the current inflationary environment leads to difficult choices with regard to the negotiation of escalators/caps, other issues regarding the lease and expenses are important to negotiate as well.  These include what items would be included in operating expenses, how normal repairs as opposed to replacements are handled, and also whether capital expenditures are part of operating expenses or something reserved for landlord. Both landlords and tenants need to be extra careful in the current environment in negotiating both the business terms and legal terms of a lease, and employ experienced legal counsel in guiding them through this process.

Contact Attorney Leo M. Gibbons at [email protected] or visit his bio for more information.

February may be the shortest month, but there were still significant employment law developments, including the nomination of a Supreme Court Justice and a landmark lawsuit against the NFL. Read the details below.

President Biden nominates Judge Ketanji Brown Jackson to the U.S. Supreme Court

Confirming what has been rumored since Justice Breyer announced his retirement, federal appeals court Judge Ketanji Brown Jackson was officially nominated to potentially serve as the first African American woman on the U.S. Supreme Court.  Below are a pair of employment law decisions that may foreshadow what Justice Jackson’s SCOTUS opinions may look like in the areas of unions and disability discrimination:

• In Fed’n of Gov’t Emps., AFL-CIO v. Trump, 318 F. Supp. 3d 370 (D.D.C. 2018), the American Federation of Government Employees (“AFGE”) and numerous other federal employee unions brought challenges to three of President Trump’s executive orders on collective bargaining rights of federal workers. The unions argued that the orders exceeded the president’s powers and conflicted with both federal labor laws and the employees’ constitutional rights.  In a lengthy opinion, Jackson ruled for the union challengers. She agreed with them both that she had the power to review their claims and that President Trump’s “directives undermine federal employees’ right to bargain collectively as protected by” federal law.  Notably, the D.C. Circuit reversed Jackson’s holding that she had the power to review the union’s claims. The unions, Judge Thomas Griffith reasoned, must first pursue their challenge through an administrative agency process and then, if necessary, in the courts of appeals.
• In Pierce v. District of Columbia, 128 F. Supp. 3d 250 (D.D.C. 2015), Jackson ruled that prison employees and contractors in the District of Columbia had discriminated against William Pierce, a deaf man serving a 2-month sentence for assault, when they failed to take any action to determine what accommodations he would need to communicate with others and “largely ignored his repeated requests for an interpreter.” Jackson found that the plaintiff “easily satisfe[d]” the “deliberate indifference” standard under Title II [applicable to prison officials] . . . where “[t]he District’s employees and contractors knew that [the plaintiff] had a hearing disability, and yet they did not undertake an assessment of the accommodations that [he] might need in order to access prison services”.  Instead, the employees and contractors “figuratively shrugged and effectively sat on their hands with respect to this plainly hearing-disabled person in their custody, presumably content to rely on their own uninformed beliefs about how best to handle him and certainly failing to engage in any meaningful assessment of his needs.”  A jury later awarded Pierce $70,000 in damages, and the city did not appeal.

Former Miami Dolphins Head Coach Sues NFL alleging Systemic Racial Bias

Earlier this month, former Miami Dolphins Head Coach Brian Flores filed a proposed class action lawsuit seeking to represent African American coaches and general managers passed over the NFL hiring process.  Flores had back-to-back winning seasons with the Miami Dolphins before his recent termination this January.  Following his termination, Flores was set to interview for an open head coaching position with the New York Giants when he found out through a text message that another Caucasian candidate had already been selected for the role.  Flores nevertheless went through the interview process, which he considered a sham and being conducted only for appearances under the NFL’s “Rooney Rule”, which requires teams to interview minority candidates for open head coaching jobs.

The lawsuit highlights the significant labor vs. management paradigm in the NFL between the largely minority players and the largely Caucasian ownership and coaching staffs.  Among other things, the suit points out that, despite the fact that the NFL player pool is 70% African American, only 1 NFL team currently employees an African American head coach.  Multiple high-profile NFL representatives are identified as potential witnesses, including New England Head Coach Bill Belichick, who sent the text message that alerted Flores to his losing out on the New York position, and Hall of Fame Quarterback-turned-GM John Elway, who was allegedly involved in another sham interview of Flores, allegedly arriving to a Flores job interview an hour late looking “disheveled” and making it “obvious” he and others had been drinking heavily the night before.

Many headlines will likely be forthcoming.  The case is Flores v. The National Football League et al., case number 1:22-cv-00871, in the U.S. District Court for the Southern District of New York.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.