Articles by Our Attorneys

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.

In an important decision protecting the rights of car accident victims to receive full and fair compensation, the Pennsylvania Superior Court struck down a “Regular Use” exclusion that Erie Insurance was relying on to deny Underinsurance Benefits in the case of Rush v. Erie Insurance Exchange.

Underinsured Benefits are coverage that you pay premiums for on your car insurance to provide fair compensation to you or a family member who suffers an injury in a car accident caused by someone who doesn’t have enough insurance coverage to fully compensate you.  For example, assume you sustain very serious injuries caused by someone who only has $15,000 of Liability Coverage.  That person is Underinsured and in that case, if you purchased Underinsured Benefits on your car insurance policy, then you can make a claim against your insurance coverage to make up the difference between the coverage of the responsible driver and the fair value of your injury claim.

Facts of the Case Rush v. Erie Exchange Case

Matthew Rush sustained serious injuries while serving as a Police Detective and driving his police car.  The driver responsible for causing the crash was Underinsured.  The City of Easton, Mr. Rush’s employer, had $35,000 of Underinsurance coverage but that was not enough to compensate Mr. Rush for his injuries and damages.

Mr. Rush had paid for “stacked” Underinsured Benefits on two policies with Erie covering his own personal vehicles.

However, both Erie policies had “Regular Use” exclusions stating that Erie was precluded from providing Underinsured Benefits to an insured who suffered injury arising from an accident involving a motor vehicle that he (1) regularly uses, (2) does not own, and (3) does not insure on the Erie Policies.

Erie denied Mr. Rush’s Underinsured claim because he regularly used the police car and did not own it or insure it on the Erie Policy.

Pennsylvania Underinsurance Law

The Pennsylvania Motor Vehicle Responsibility Law (MVFRL)  is comprehensive legislation governing the rights and obligations of insurance companies and Pennsylvania drivers.  Under the law, if an insurance policy violates the terms of the MVFRL, it is invalid and cannot be enforced.

Section 1731 of the MVFRL governs the scope of Underinsured Benefits (UIM) in Pennsylvania and provides that insurers shall provide UIM coverage that “protects persons who suffer an injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles.”  The language of the UIM statute is clear and mandatory.  The MVFRL states that UIM coverage shall be provided for the use of any motor vehicle.

There is no exception allowing the insurance coverage to be limited if the injured person regularly drives some other vehicle.

The only exception to mandatory UIM coverage is if the insurance company has the insured waive coverage by signing a valid waiver form.

The Superior Court Decision in Rush v. Erie

Based upon the clear language of the MVFRL, the Pennsylvania Superior Court held that the Erie “Regular Use” exclusion was invalid.  As a result, Mr. Rush was able to make claims on both Erie UIM policies that he paid premiums for.

Far Reaching Implications

This decision has far reaching implications for Pennsylvania drivers.  There are many situations that could implicate the “Regular Use” exclusion:  tractor trailer drivers, delivery drivers, people with company cars, bus drivers etc.  In all of these scenarios, Pennsylvania insurance companies can no longer hide behind the “Regular Use” exclusion and deny payment of UIM benefits in serious injury cases where the injured person happened to be driving a non-owned and regularly used vehicle.  As a result of this important decision,  it is more likely that accident victims will be fully compensated for their injuries, just as long as they had the foresight to pay premiums for substantial UIM benefits.

This is yet another reason why you should check your Car Insurance Policy right now and make sure that you have at least $100,000 of UIM benefits.  In addition, for multi-vehicle policies you should choose to “stack” your UIM coverage which multiplies the UIM coverage by the number of vehicles on the policy.

Tim Rayne is a Pennsylvania Car Accident and Personal Injury Lawyer with MacElree Harvey, Ltd. 

For over 25 years, Tim has been helping injured accident victims receive fair compensation from insurance companies.  Tim has law offices in Kennett Square and West Chester, Pennsylvania but also meets with clients at their homes or remotely via Zoom or FaceTime.  Contact Tim for a Free Consultation at 6108400124 or [email protected].  

Employment discrimination headlines and more rulings on vaccine mandates dominated the news in October 2021.  Here are some of the key developments:

Jury awards $137 million verdict to African American subcontractor in Tesla racial harassment trial

A jury in California awarded $136.9 million to a former African American subcontractor after finding that the man was subjected to a hostile work environment at Tesla’s northern California factory.  The plaintiff, Owen Diaz, stated that his colleagues repeatedly referred to him using racial slurs, that he observed racist graffiti on the premises, and that the company was aware of the incidents and failed to act to stop it.  Tesla’s human resources representative acknowledged the use of racial slurs, but challenged that they responded to the Plaintiff’s complaints by firing two contractors and suspending another, and also pointed out that other witnesses reported that the slurs were primarily being used by African American colleagues in a “friendly” manner.  $130 million of the award was for punitive damages, with the remainder for past and future noneconomic damages.  Tesla has not announced whether it will appeal the verdict.  In any case, the verdict serves as a reminder of the importance of prompt and effective action from management when racially offensive behavior occurs in the workplace.

Jury rules in favor of white male in bias case and awards $10 million

A jury in North Carolina awarded a white male marketing vice president $10 million who was fired and replaced by two women, one of whom was African American, as part of a hospital’s ‘five year plan’ to boost diversity.  The Plaintiff, David Duvall, alleged that he was inexplicably terminated just days before reaching his 5 year work anniversary, which would have resulted in him receiving a higher severance payout than he was given.  He allegedly had regularly received “rave reviews” from his superiors prior to his termination, and was told at the time he was terminated that the decision to terminate his employment had nothing to do with his performance.  The hospital countered that Duvall was terminated for deficient performance.  Duvall’s attorney commented, “the case is about the fact that you cannot fire people just to create opportunities to fill positions.  It is not a case against diversity and inclusion”, pointing out that Duvall actually sat on a committee to promote diversity and inclusion while employed at the hospital.

First Circuit Court of Appeals declines to freeze Maine vaccine mandate despite not offering a religious exemption

The First Circuit has affirmed the denial of an injunction to eight workers in Maine and a Maine private health-care provider concerning Maine’s vaccine mandate.  The Plaintiffs sought to bar the state’s enforcement of an emergency rule requiring Covid-19 vaccinations for all employees at health-care facilities because the law failed to include a religious exemption.  The Plaintiffs asserted that that the lack of a religious exemption to the vaccination requirement violates their federal constitutional and statutory rights. They all sought exemptions based upon sincerely held religious beliefs that oppose taking the vaccine.  While the denial of the injunction is not the end of the challenge to the law, the ruling signals that the Court was not persuaded that the Plaintiffs were likely to prevail.  The Maine law does permit a medical exemption to the vaccine mandate.

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 ma

Recent changes to the bankruptcy preference law enhanced the defenses of creditors to preference claims. In a preference claim, the bankruptcy estate, the trustee, or a creditor’s committee is seeking return of money paid to the unsecured creditor in the 90 day period preceding the filing of bankruptcy by the debtor. Under the Bankruptcy Code, these payments are called preferences and preferential payments by the bankruptcy debtor to an unsecured creditor can be avoided and the unsecured creditor can be required to pay back the money it received within 90 days of debtor’s (its customer’s) bankruptcy.

Two changes in the preference law were enacted and serve to benefit the interests of unsecured creditors. First, Section 547(b) was amended to provide that the trustee can avoid payments/transfers to an unsecured creditor “based on reasonable due diligence in the circumstances of the case and taking into account a party’s known or reasonably known affirmative defenses under Subsection [547](c)”. Prior to this amendment, a bankruptcy trustee often made claims against all unsecured creditors who received payments from the bankruptcy debtor in the 90 days prior to bankruptcy based merely on an examination of the debtor’s payment ledgers and check registers, and without any inquiry into defenses that may be possessed by the unsecured creditor.  The bankruptcy estate/trustee must now do some actual investigation and due diligence into these claims before making a demand of the unsecured creditor and seeking to avoid the payments during the preference period. At minimum, this would appear to require that the estate/trustee inquire as to possible defenses such as whether the debt at issue, and payment thereof by the debtor, was in the ordinary course of business between the debtor and the unsecured creditor, and also whether value was given by the unsecured creditor, either contemporaneously with the transfer, or whether such value was given subsequent to the payments or transfers at issue by the debtor. Additional considerations that may be beneficial to an unsecured creditor in defending a preference claim are: what a court will consider to be reasonable due diligence by the estate/trustee before making a preference demand or filing a preference claim against the unsecured creditor; and  appropriate remedies for the failure of the estate/trustee to exercise reasonable due diligence.

The second and more recent change in the preference law involves situations where a lease or executory contract exists between the debtor and an unsecured creditor and, during the period between March 13, 2020 and March 13, 2022 the parties amend the lease or contract to defer or postpone payments otherwise due under the lease or contract. These payments are referred to as “covered arrearages” or “covered payments”. Under the amendment, the estate/trustee is prohibited from avoiding payments made by the debtor for these type of arrearages during the above-referenced period. Covered arrearages, however, do not include fees, penalties or interest imposed during the two year period.

Taken together, the changes to the preference law provide unsecured creditors with additional tools that both require a greater degree of diligence by the trustee and provide a substantial defense for the unsecured creditor, especially while the economy continues to recover from the COVID-19 Pandemic.