Articles by Our Attorneys

By: Brian J. Forgue, Esquire

One of the most common questions I am asked by a spouse in the midst of a divorce is whether spouses are entitled to receive any portion of money or property that the other spouse inherits individually. The short answer is: it depends.

The general rule in Pennsylvania is that inheritances are the separate property of the spouse that received them and are not subject to equitable distribution in divorce.  Of course, there are certain exceptions to this rule based on the factual circumstances of each case.  For example, one main exception is if the inheriting spouse takes a monetary inheritance and deposits that money into a joint bank account titled with their spouse.  In this instance, the inherited money may be considered commingled, therefore becoming marital property, which is subject to be divided in equitable distribution.   Similarly, if a spouse inherits something other than money, like a plot of real estate or a house, and the inheriting spouse adds the non-inheriting spouse to the title as a joint owner, then the property would be considered a marital asset and subject to equitable distribution.  

It is important to note that while the initial inheritance of a spouse is considered separate property, any increase in value in that inheritance during the course of the parties’ marriage is considered marital property subject to division.  For example, if Spouse A inherits $100,000 from a parent’s will and during the course of the parties’ marriage, that $100,000 inheritance increases in value to $150,000 at the time Spouse A and Spouse B separate, the $50,000 increase during the parties’ marriage is considered marital property subject to equitable distribution, assuming Spouse A did not commingle the inheritance funds into any joint account during the marriage.  But, the original $100,000 inherited by Spouse A before the marriage remains the separate property of Spouse A. This example applies similarly to inherited personal and real property as well.  

The best way to keep inheritances separate property is to physically keep any monetary inheritance in a separate bank account away from any joint accounts you may have with your spouse and be sure not to deposit or commingle marital funds into the account containing the inherited funds.  In the case of inherited personal or real property, be sure to keep these items titled individually in your name alone or your spouse may have a claim that such items are marital property as opposed to separate property.

If you have questions or concerns about inheritances and your divorce, call Brian directly at 610-840-0221 or via email at [email protected]. 

Often during the course of your personal injury case, you will be scheduled to meet with a doctor chosen or designated by the defense attorney.  This event is referred to as a “Defense Medical Exam” or an “Independent Medical Exam.”  This is the opportunity of the defense to have you examined by a doctor who will act as the defense medical expert and provide his/her own opinions concerning injuries you suffered in the accident and the course of treatment that you have undergone.

Here are some helpful tips to consider prior to attending your Defense Medical Exam:

1. The Doctor is Not Neutral. Although these examinations are often referred to as an “Independent Medical Examination”, you should view the doctor as the defense team’s hired expert.  The doctor is hired and paid by the defense, and there are many doctors who make a substantial living off of acting as defense experts and performing these examinations rather than treating patients.  More often than not, the defense doctor will provide an opinion favorable to the party who has hired him/her so you should not expect that the doctor will be a completely neutral actor.
2. The Doctor is Not Going to Provide Treatment. The role of the defense doctor is to interview you, examine you, review your records and provide an opinion.  The defense doctor is not going to prescribe for you or provide you with a plan of care.  The purpose of the examination is for litigation purposes only; it is not to provide you with additional treatment.
3. Format of the Exam. The portions of your appointment with the defense doctor will be an interview and a physical examination.  The defense doctor will also review your medical records, but he/she will complete the review of records either before or after the appointment.  For the interview portion of the examination, you will be expected to discuss with the doctor how the accident occurred, your medical treatment, your symptoms, your restrictions, and any prior or subsequent injuries you have suffered.
4. How to Prepare For the Exam. There is no preparation necessary for the examination, but it is a good idea to review your medical diagnoses, summary of medical treatment, and be comfortable explaining how the accident occurred and history of your injuries and treatment.  Your job during the examination is to be honest and provide a truthful responses.  You should be able to be descriptive of your injuries and symptoms, but not over exaggerate.
5. No Visitors Allowed. While in other neighboring jurisdictions, plaintiffs can bring a chaperone or be accompanied by their attorney’s paralegal to the appointment, Delaware does not allow you to bring a chaperone or support person into the examination room with you. In rare situations where the plaintiff is a minor or suffers from a disability, the court would allow a parent or support person, but as a general rule of thumb, for Delaware cases a chaperone cannot go into the examination with the plaintiff.

Keep in mind, even if you receive an unfavorable report from the defense medical expert, your attorney can have your own medical expert review and rebut the defense medical expert’s opinions.  So while it may seem like the cards are stacked against you, you will have your own medical expert to support your injury claim at trial who will most likely be a treating physician who is much more familiar with you, your treatment, and your medical history.

Tiffany is a partner at MacElree Harvey, a full-service law firm serving Delaware and Pennsylvania.  Licensed to practice law in Delaware and Pennsylvania, Tiffany represents clients in personal injury cases, trust and estate litigation, adult guardianships, and real estate litigation.  She joined MacElree Harvey in the summer of 2016 and spends her time in the Centreville, Delaware office and the Kennett Square office.  Contact Tiffany at (302) 654-4454 or [email protected] to discuss your car accident or other civil litigation matter.

2021 has been another roller coaster in the world of employment law. See where things stand at the end of the year, both nationally and in our region:

Supreme Court to hear challenges to COVID-19 Vaccine mandates in early January

Arguments in the lawsuits seeking to block the Biden administration’s vaccine mandate for private employers will be heard by the U.S. Supreme Court on January 7, 2022. At issue is the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) requiring businesses with at least 100 employees to ensure workers are vaccinated against the coronavirus or to wear masks and undergo weekly COVID-19 testing. A federal appeals court had temporarily blocked the rule, but the 6th Circuit Court of Appeals lifted the stay on Dec. 17 in a consolidated action. Consequently, employers will have to comply with the ETS unless the Supreme Court rules otherwise. The start date for the testing requirement has been extended to Feb. 9, but  other components of the ETS take effect on Jan. 10, including the requirement for employers to determine the vaccination status of each employee and develop a written policy.

Another mandate being ruled upon comes from the Centers for Medicare & Medicaid Services (CMS), which requires COVID-19 vaccination for staff employed at Medicare- and Medicaid-certified providers and suppliers. Through various legal challenges, this requirement remains blocked in 25 states.  The U.S. Department of Justice (DOJ) has asked the Supreme Court to reinstate the rule nationwide.

2 Key employment cases in the 3^rd Circuit in 2021

PA Union Defeats Post-Janus Challenge to Membership Dues

Early in 2021, the 3^rd Circuit Court of Appeals (which encompasses Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands) made a key pro-union ruling in the wake of the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME. In Janus, the U.S. Supreme Court ruled that public workers who decline to join unions can’t be forced to pay the unions fees.  In the 3^rd Circuit case, an employee who works for a Scranton, PA Public Library resigned from the union post-Janus, and attempted to assert a class action for a refund of the “compulsory” dues she paid before Janus.  The 3^rd Circuit rejected the challenged, finding the employee’s “claimed injury of economic loss occurred not because of the union’s actions toward nonmembers but because of her decision to join the union”. Thus, the 3^rd Circuit decision should insulate unions from future challenges seeking recovery of fees from members who withdraw following Janus. Non-union members who were forced to pay union-related fees may theoretically still a viable cause of action.

3rd Circuit tosses pro-business ruling in Fight Over Pennsylvania’s COVID-19 Mandate

In 2020, a Pennsylvania U.S. District Judge ruled that Governor Tom Wolf’s pandemic stay-at-home orders, limits on crowd size, and business closures, were overreaching and arbitrary and violated citizens’ constitutional rights. In August, 2021, the 3^rd Circuit dismissed a judge’s ruling, saying the case became moot because the statewide mitigation measures expired and because Pennsylvania voters had since constrained a governor’s emergency powers through amendments to the state constitution. While the 3^rd Circuit’s decision effectively erases a pro-business precedent, the challenge continues. The businesses are seeking review from the U.S. Supreme Court, which their legal counsel has explained: “We think it is crucial that the Supreme Court take this case because the issue of unfettered executive authority during a pandemic remains very much an ongoing issue”.

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.

The holidays are typically a time for relaxation, celebration, and spending time with loved ones. The holidays are also a time when families with minor children affected by divorce usually have to refer to their custody orders to determine with which parent or party minor children will be spending their holiday.

In most cases, custody orders specifically state which parent or party has custody of the minor child/children for specific holidays in any given year. Custody will usually alternate between parents on even and odd years for major holidays. For example, a custody order can state that Parent 1 will have custody of the minor child/children for Christmas in odd years and Parent 2 will have custody for Christmas in even years.  Typically, custody orders will also provide that holidays take priority over the normal custody schedule. Again, for example, if a custody order says that Parent 1 has custody of the minor child/children for Christmas in 2021, but Christmas falls within Parent 2’s normal custody week, custody on Christmas for Parent 1 will take priority.

The best thing for divorced parents to do around the holidays, especially for the sake of their minor children, is to communicate with the other parent early to confirm everyone’s understanding and compliance with the holiday custody schedule in place. If you anticipate disagreements with the other parent, have this discussion early enough prior to the holidays to leave time to troubleshoot disagreements by involving a mediator or the court if necessary. Giving early attention to disagreements about the holiday custody schedule ideally will prevent disruption to the minor child/children’s enjoyment of the holiday, regardless of which parent or party has custody.

If there is no order in place specifying the holiday custody schedule, parents or parties should continue to work together cooperatively on a custody schedule to ensure that the holidays remain an enjoyable and relaxing time for children. 

If you have questions about your custody order, or other domestic issues, call Brian directly at 610-840-0221 or via email at [email protected]. 

The cost of divorce is an ever-present concern for couples ending their marriages. In Pennsylvania, divorcing couples go through a process called Equitable Distribution, where the assets and liabilities of a marriage are divided between the spouses so they can divorce and go their separate ways. For example, assets can include items like cash and retirement accounts, houses, cars, and personal property, and liabilities can include items like credit card debt, mortgages, and car loans. The terms of how these and other items will be divided results in a written contract between the parties called a Property Settlement Agreement.

Couples have a lot of freedom to negotiate how the assets and liabilities of their marriage will be divided and one major way parties can keep divorce costs down is to communicate with your spouse, to the extent possible, and agree on as many terms of the Property Settlement Agreement as you can. The more spouses can agree and predetermine how they want to divide marital property and debt, the less involvement they will need from their attorney to either negotiate these terms or argue about these terms in court on their behalf.

Agreement and cooperation with your spouse will also help in situations where the custody of minor children is involved.  Divorcing couples can always agree on custody schedules for children including week-to-week arrangements, holidays, vacations, and the responsibility of each spouse for extra-curricular activities.

Of course, no two divorces are identical and some couples will be able to work with one another easier than others to communicate about these major items. But generally, even if you cannot agree on all terms of dividing your marital estate, the greater number of issues you and your spouse can discuss and agree on, the less costly the divorce process is likely to be.

If you have questions or concerns about your divorce or other domestic issues, call Brian directly at 610-840-0221 or via email at [email protected].

OSHA’s authority to impose vaccination standard on private employers fell under heavy scrutiny in November 2021.  This, and other updates, below: 

OSHA Suspends Vax or Test  ETS Pending Court Challenges

Earlier this month, the Occupational Safety and Health Administration (OSHA) announced that it is suspending all implementation and enforcement efforts related to the emergency temporary standard (ETS) on mandatory COVID-19 vaccination and testing in the workplace.  The ETS required all private employers with 100 or more workers to ensure all employees are either fully vaccinated for COVID-19, or provide a weekly negative test and wear a face covering while working.  

The announcement follows the November 12, 2021, order from the Fifth Circuit Court of Appeals staying enforcement of the ETS pending a final ruling on its legality.  The Fifth Circuit did not pull any punches in its opinion on the ETS: 

“[t]he Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address”.  

Also this month, the Sixth Circuit Court of Appeals was selected as the venue where all legal challenges to the ETS will be consolidated and ruled upon. Historically, OSHA’s standards have not done well when challenged in the courts, with five of six standards being struck down.

Pennsylvania federal judge rules Tyson food’s Pennsylvania subsidiary immune from COVID-19 death suit under state workers’ compensation law 

A U.S. District Judge in the Eastern District of Pennsylvania ruled this month that Tyson Foods’ Pennsylvania unit, Original Philly Holdings Inc., which operates the Philadelphia meatpacking facility where worker Brian Barker contracted COVID-19 and later died, is immune to the suit because workers’ claims against employers need to be handled via the state workers’ compensation system.  Per the Court’s Order, the Pennsylvania Supreme Court’s 1987 decision in Kiehl v. Action Manufacturing Co. provides that a parent and its subsidiary “must be regarded as separate entities” when applying the PWCA, and “a parent is not an employer because it indirectly benefits from the work of a subsidiary’s employee.”  “The facts alleged by plaintiff herself confirm that Holdings was Mr. Barker’s employer and so is immune from suit under the PWCA,” the Court concluded. 

Pennsylvania Supreme Court rules worker still on the job at after-work event and could be eligible for workers compensation

The Pennsylvania Supreme Court ruled this month that a traveling salesman for a Pennsylvania company was still furthering his employer’s interests when he attended a work-sponsored, after-hours gathering, and could still be eligible for workers’ compensation when he got into a crash on the way home.  In Peters v. WCAB (Cintas Corp.), the Court held that Pennsylvania’s “traveling employee doctrine” gave the claimant the presumption that he was on the job unless his employer could prove he wasn’t. Though a Cintas-sponsored happy hour was voluntary and work was not discussed, it was enough of a work event that attending it did not constitute “abandonment” of the claimant’s job, the unanimous opinion stated.  The opinion serves as a reminder of the broad scope of employment in the context of workers compensation claims generally, and that the scope is even broader for traveling employees.

The case is case number 1 MAP 2020 in the Supreme Court of Pennsylvania.

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, 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.