Articles by Our Attorneys

January 2021 brings a new year and a new balance of power in the federal government.  In the coming months, we can expect a flurry of activity as the government continues to address COVID-19 and reexamines policies from the previous administration.  Here are some of the biggest developments so far this year:

1. In one of his first acts in office, President Biden issued an Executive Order to the Department of Labor (DOL) to issue revised guidance for employers to boost COVID-19 safety precautions for workers. Specifically, Biden instructed the Occupational Safety and Health Administration (OSHA) to examine current mask-wearing requirements, to partner with state and local governments, and to offer additional resources to help protect workers.  This may be the first of several measures of the new administration to have OSHA and the federal government take a greater role in combating COVID-19 in the workplace.
2. Congressional Democrats have released a bill to raise the federal minimum wage to $15.00 per hour by 2025. The bill proposes a gradual increase from the current minimum wage of $7.25 per hour, with an initial boost of $2.25 per hour when the bill becomes effective.  The bill further indexes future annual increases based upon median hourly wage growth as calculated by the DOL’s Bureau of Labor Statistics.  According to a Congressional Budget Office report issued in 2019, raising the minimum wage to $15.00 per hour would increase wages for between approximately 17 and 27 million workers.  However, the increase would also result in approximately 1.3 million workers losing their jobs.  Time will tell if the bill becomes law.  The federal minimum wage has not increased since 2007.
3. The Department of Labor issued new opinion letters clarifying travel pay requirements for partial telework days. The DOL addressed the situation where an employee divides a workday into a block of work in the office and a block of work at home, with a block in between reserved for the employee’s own purposes.  According to the letters, the reserved time is not compensable under the Fair Labor Standards Act (FLSA), even if the employee uses some of that time to travel between home and the office.  As an example, DOL describes a situation where an employee leaves the workplace in the afternoon to attend a parent-teacher conference, and then resumes work at home after the meeting, having spent an hour traveling to and from the school.  The time the worker spent between leaving the office and clocking back in at home is not compensable.  While this may seem like common sense, employers are facing more and more situations like this, and so clear guidance from the DOL is critical.

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 also 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.

You’re finally ready to put in that swimming pool, build that addition, or subdivide a property. However, when you consult your engineer or your municipality’s zoning officer, you are told that you need to first apply for a special exception, conditional use, or variance. You wisely plan to hire an attorney specializing in land use and zoning to handle the application, but you understandably have some questions about the overall process of obtaining zoning relief. Below are a few of the most frequently asked questions received on the subject from property owners.

Q:      What is the difference between a special exception, conditional use, and variance?

A: Special Exception:

The term “special exception” is something of a misnomer because it is not an exception to a zoning ordinance’s requirements. Instead, a use “by special exception” is a use which is permitted subject to the applicant establishing that the use will comply with certain objective criteria set out in the zoning ordinance for that particular use. A special exception application is decided by the municipality’s zoning hearing board after one or more hearings.

Conditional Use: A conditional use is essentially the same type of relief as a special exception, in that the use is permitted subject to certain criteria and conditions. The only distinguishing feature of a conditional use application is that it is decided by the municipality’s governing body, not the zoning hearing board.

Variance:

A variance is a deviation from the use or dimensional requirements of the zoning ordinance and, importantly, there is no right to a variance. For example, you would seek a use variance if you seek to operate a commercial use in a zoning district in which that use is not permitted by the zoning ordinance. A dimensional variance is required when the physical dimensions of a lot or structure do not satisfy the bulk/area requirements of the zoning ordinance.  Generally, you must show that: (1) there are unique physical circumstances or conditions on the property, which (2) create unnecessary hardship in that they unreasonable inhibit the usefulness of the property, (3) the hardship is not self-inflicted, (4) the grant of the variance will not adversely impact public health, safety, and welfare, and (5) the variance sought is the minimum variance that will afford you relief. The evidentiary burden for a dimensional variance is lighter than that of a use variance, although you are still generally required to satisfy the five-part test.

Q:        What is the process for obtaining these types of zoning relief?

A: Once it is apparent that you require zoning relief, the first step is to prepare an application to the appropriate municipal body which you submit with the application fee. It is also wise to have an attorney prepare a narrative statement in support of the application that describes the project and why the municipal body should grant the requested relief. Most municipalities require that you also submit a plan prepared by an engineer or surveyor showing the dimensions of the property and any proposed improvements. Depending on the application, it may also be advisable to have the attorney submit aerial photographs, letters of support, and other items which support or explain the project. The hearing itself must occur within 60 days from submission of the application unless you grant an extension of that time. After submitting the application, the municipality will advertise the hearing date in a local newspaper, and either you or the zoning officer (depending on the local zoning ordinance) will both post notice of the hearing on your property and notify neighboring property owners within a specified distance of your property.

Q:        Do I need an attorney?

A: While not legally required, hiring an attorney to handle your application for zoning relief is strongly recommended. Although a hearing before a municipal body may seem more informal than a proceeding in court, the stakes are actually quite high. The municipal body is looking for compliance with very specific legal requirements and will be advised by its own attorney, called a solicitor, who will attend the hearing. The municipal hearing is also your first and best chance to obtain the relief you seek. Should you appeal a denial of your application to the Court of Common Pleas, the judge is not required to take additional evidence, and must give substantial weight to the municipal body’s interpretation of the local zoning ordinance. Given the stakes of the municipal hearing, it is wise to hire an attorney who specializes in this field to prepare your application and then represent you at the hearing.

Q:        What are my chances of success?

A: It is difficult to approximate the chances of success for general categories of zoning relief, because the outcome usually depends on the degree of the relief sought and the specific property, use, and/or improvements at issue. In very general terms, a use variance is more difficult to obtain than a special exception or conditional use. A dimensional variance can be less onerous to obtain than a use variance, but here too the degree of variance sought is still very important. Because special exceptions and conditional uses are for uses which are already permitted subject to approval by the municipality and/or certain conditions, they are less difficult to obtain than a variance, but conditions imposed on the grant of relief may be the subject of intense negotiations.

Q:        Will my neighbors get to weigh in on my application?

A: Yes – and you never know who may oppose your application until the hearings are concluded. Your attorney should anticipate and be prepared to address the probable questions or concerns objecting parties might have.

If you plan on submitting an application for zoning relief, 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 p

Did you make a New Year’s Resolution for 2021? Maybe you resolved to lose weight, save money, travel, or spend more time with family. This year I would encourage you to also resolve to address your estate plan. It may not be as sexy as resolving to get back to your college weight or seeing Paris at night, but I assure you it is just as important. An estate plan is an investment in your own peace of mind knowing that your own interests and wishes, as well as those of your family, are protected.

The following questions may help you to start thinking about your own estate plan and the types of questions you should be asking.

Review Your Estate Plan

Family dynamics change all the time.  People get married, divorced, have children, and all of these life changing events can impact your estate plan.  As such, it is important that you review your plan and ask some basic questions:

1. Does your Will accurately reflect who you want to inherit your estate? Maybe you have had additional children since your Will was first executed? Or maybe you now have grandchildren? It is important that your Will accommodates these changes.
2. Do the trust terms set forth in your Will still apply? If you have children there is probably a testamentary trust in your Will.  This provision controls how assets passing to your children will be managed and distributed.  Maybe you have recently had your first grandchild? Maybe you have a child with marital or creditor issues? Or maybe your child has had issues with drugs or alcohol?  All of these issues could require revisions to the trust provision in your Will to protect your child’s inheritance.
3. Do the fiduciaries you selected in your estate plan still make sense? When you drafted your plan you named an executor, a guardian, a trustee, and you most likely named agents to act as your power of attorney for finances and medical decisions.  Do you still have a relationship with the individuals you selected to these roles? Are there other people who may be better suited to fulfill these roles?  Can the individuals you selected still fulfill these roles?  It may be important to rethink these selections and update your estate planning documents accordingly.

If You Don’t Have an Estate Plan – Get One

As I mentioned above, an estate plan is an investment.  But it is not just an investment for the wealthy.  And the process does not have to be overly complicated.   At a minimum, individuals should sign a Will, Durable Power of Attorney, and a Durable Health Care Power of Attorney and Living Will.  These documents will ensure that you have someone to handle your finances and make medical decisions if you were ever to become incapacitated, and also set forth a plan for the distribution of your assets and the care for your children upon your death.

Review Beneficiary Designations and Inventory Assets

It is important to understand that assets with beneficiary designations such as 401Ks, IRAs, life insurances, etc., get distributed pursuant to those designations – and not based on the terms of your Will.  These assets typically make up a large percentage of someone’s estate, so it is incredibly important that these designations be reviewed and updated.  You certainly do not want your 401K paid to your ex-spouse, or your life insurance paid directly to your child after you went to the trouble to set-up a trust in your Will.

Additionally, and in order to assist your Executor to administer your estate after your death, you should compile and regularly update an inventory of all your assets. This inventory should include a description of the assets, how they are owned, and identify the beneficiaries.

It is also a good idea to compile a list of digital assets along with your username and password.  Digital assets can include social media accounts, bank accounts, cryptocurrency accounts, online storage accounts, photo accounts, websites, and a host of other assets.  It is important that your family not only know what types of accounts you own, but also what your intentions are with those accounts when you die.  Do not be that gentleman from Britain who threw out his computer with the passwords to his Bitcoin account, thus jeopardizing his rights to those assets – which are now worth close to $300,000,000.00.

Review Your Plan with Your Family

Review your estate plan with your family.  Provide them with copies of your documents so they understand your plan.  I often encourage clients to schedule a meeting with me to review their estate plan with their children.  It gives the children an opportunity to ask questions and learn about the process, but it also helps them understand their parents’ intentions.

Familiarize Yourself with Death Taxes

It is important that you understand death taxes.  The Federal estate and gift tax exemption increased to $11.70 million per individual in 2021.  This exemption may not apply to you now, but there is talk that the Biden administration may reduce the estate tax exemption to $3.5 million per individual, and the gift tax exemption to $1.0 million per individual.  We do not know if this is certain, or when any changes will take effect, but you should certainly start talking to your financial and tax advisors to see if these changes will apply to you and plan accordingly.

This is not an exhaustive list of questions related to an estate plan, but I am hopeful that it will at least help provide a little information to spark dialogue. Don’t be afraid to talk to your tax professional, your financial advisor, or your attorney, and ask questions.  If you have a plan – understand its limitations. If you don’t have a plan – learn what you need and get it done.  This is one New Year’s Resolution that will have a lasting effect.

Stephen M. Porter is an attorney with MacElree Harvey, Ltd.  He helps clients navigate the estate planning process, and provides advice on tax related issues, trusts, and philanthropic planning.  He also helps small businesses with choice of entity questions, and succession planning.  Steve can be reached at (610) 840-0256 or [email protected].

With the start of a new year, 2021 brings an often forgotten and overlooked requirement for many business entities that are formed under the laws of the Commonwealth of Pennsylvania: the decennial report. The decennial report is a report of an entity’s continued existence. The report, which is filed every ten years during the years ending with the numeral “1” (e.g. 2011 and 2021), helps the Pennsylvania Department of State (“PA DOS”) identify business names that are no longer in use, so that they may be reissued and placed back into the stream of commerce.

What Is The Decennial Report?

The current decennial report must be filed at any point during the 2021 calendar year by all non-exempt (i) domestic and foreign business corporations, (ii) non-profit corporations, (iii) limited liability companies, (iv) limited partnerships, (v) limited liability partnerships that are not also limited partnerships and (vi) business trusts. Fictitious names are excluded from the requirement.

The decennial report form, Decennial Report of Association Continued Existence, must be completed and mailed with $70.00 payment made payable to the PA DOS.

Four searchable documents are available on the Bureau of Corporations and Charitable Organizations’ (“Bureau”) website that identifies all entities that are required to file a decennial report in 2021. Further, on January 15, 2021 notice was mailed to all affected entities at the registered office address of each such entity, and contained a website link to the appropriate decennial filing forms and instructions.

Are There Exceptions?

Yes, the following entities do not need to file the decennial report:

1. Any domestic and foreign business corporation and non-profit corporation, limited liability company, limited partnership, limited liability partnership that is not also a limited partnership or business trust that has made a new or amended filing with the Bureau at any point from January 1, 2012 through December 31, 2021 other than a decennial filing, name reservation, name search, consent to appropriate name or fictitious name registration.
2. Any nonqualified foreign association which registered its name pursuant to 15 Pa.C.S. § 209 (relating to registration of name of nonregistered foreign association).
3. A business corporation that has had officer information forwarded to the PA DOS by the Pennsylvania Department of Revenue during the preceding ten years under 15 Pa.C.S. § 1110 (relating to annual report information).

Consequences for Not Filing the Decennial Report

If any non-exempt entity fails to file a decennial report during the filing period from January 1, 2021 through December 31, 2021, it will no longer have exclusive use of its name on or after January 1, 2022. While the business entity will continue to exist, its name will become available for any corporation or other association registering to do business in the Commonwealth of Pennsylvania which may request it.

An entity which has failed to file the decennial report during the 2021 calendar year may do so at any later time, which filing shall reinstate the name of the entity on the register of the PA DOS unless its name has been appropriated during the period of the delinquency.

Matthew C. Cooper is an attorney in MacElree Harvey’s Business Department specializing in business and corporate law. He counsels businesses of various sizes and industries through all stages of the business life cycle, including representing management and boards of directors by helping them stay compliant with the ever-changing landscape of corporate law. Matthew frequently represents businesses in private financings, and is a trusted adviser to lenders and borrowers in commercial lending transactions. If you have any corporate or business law needs, please contact Matthew C. Cooper at (610) 840-0279 or [email protected].

In the context of law enforcement searches of automobiles, the Pennsylvania Supreme Court, in Commonwealth v. Alexander (No. 30 EAP 2019), recognized and restored the enhanced privacy interests of the citizens of our Commonwealth by relying upon our Commonwealth’s Constitution as opposed to the United States Constitution. This was long overdue and a victory for the residents of our state.

The federal standard for warrantless motor vehicle searches under the Fourth Amendment to the United States Constitution requires only probable cause. “Exigency,” examples of which are time-sensitive/evidence-dissipation or police safety concerns, are not required under the federal standard as the “inherent mobility” of an automobile relieves law enforcement of justifying the warrantless search on exigent circumstances.

For decades, the Commonwealth of Pennsylvania differed from the federal standard as to motor vehicle searches due to heightened privacy interests protected by Pennsylvania Constitution Article I, Section 8, as recognized in Commonwealth v. Edmunds, 586 A.2d 87 (Pa. 1991) and applied specifically to motor vehicle searches four years later in Commonwealth v. White, 669 A.2d 896 (Pa. 1995). The reasoning supporting this distinction was that while the federal constitution was focused on preventing law enforcement overreaching, Pennsylvania’s focus was the privacy interests of its citizens.

Unfortunately, in a regrettable decision, a divided Pennsylvania Supreme Court reverted to the federal standard in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014). The effect of this: any time a police officer pulled someone over in Pennsylvania and could later convince a judge that probable cause existed at the time of the warrantless search, say the odor or marijuana or the fact that a pipe was in plain view, they had carte blanche to search the car.

The Alexander court rejected the Gary approach in re-affirming that the Pennsylvania Constitution affords greater protection to its citizens than does the Fourth Amendment to the United States Constitution. Police now require probable cause and exigent circumstances to justify a warrantless search of a car.

What does this mean in practical terms? It’s simple: if asked by the police whether they have your permission to search your car, politely decline and make them convince a judge that there is probable cause for a search warrant or proceed to search your car and later have to convince a judge that exigent circumstances existed justifying the search. That’s when lawyers, like yours truly, get to work in a courtroom as, if a judge agrees with our “Suppression” argument that the warrantless search was illegal under the Pennsylvania Constitution, the prosecutor is not permitted to use any evidence derived from the unlawful search. That bag of marijuana they found in your trunk? They can’t use it and your case is dismissed.

Of course, by not consenting to the search, the police may recognize they don’t have probable cause and let you go, avoiding court and lawyers like me altogether!

With a New Year starting, it’s a perfect time to review your Car Insurance Policy and make sure that you have the right coverage to protect yourself and your family if you happen to cause or be injured in a car accident.

Even if you already paid to renew your Policy, changes can be made at any time online or by making a phone call to your agent. Consider these five tips and Bonus Tip:

1. Choose Full Tort Not Limited Tort – In Pennsylvania, you have to choose whether you want Full Tort or Limited Tort. Full Tort is slightly more expensive coverage but it protects your full rights to compensation if you are injured in a car accident caused by someone else. Limited Tort is cheaper coverage but your legal rights are limited. With Limited Tort, you are able to recover compensation for economic damages like medical bills and lost wages but cannot make a claim to be compensated for disability and pain and suffering unless you suffer a “serious injury”. I have talked to hundreds of clients who thought they had “full coverage” but were very disappointed when they learned that their legal rights were impaired due to Limited Tort.
2. Uninsured and Underinsured Coverage – This is coverage that allows you to make a claim against your own insurance company to be compensated for personal injuries sustained by you or a family member if the driver responsible for the collision has no insurance (Uninsured) or not enough insurance (Underinsured) to cover all of the injuries and damages. The Uninsured/Underinsured claim has no impact on your insurability or insurance rates because you pay premiums for the coverage. I recommend that every family have at least $100,000.00 of Uninsured/Underinsured coverage if not up to one million or more to protect from catastrophic injuries.
3. Increased Medical Coverage – Pennsylvania works on a no-fault system, so regardless of who is at fault for causing an accident, your own Car Insurance pays your medical bills up to the amount of your coverage. The minimum and most common amount of Medical Coverage is $5,000.00 but I recommend that people consider purchasing much more for two reasons. First, increased medical coverage is very inexpensive. Second, the coverage will pay for your medical bills without any co-pays or deductibles. With most people having high deductible Health Insurance plans nowadays, increased medical coverage on your Car Insurance can be very beneficial.
4. Lost Wage and Accidental Death Coverage – In Pennsylvania, Lost Wage and Accidental Death Coverage is optional, not mandatory. Like medical coverage, these benefits will be paid regardless of who was at fault for causing an accident. If you do not have significant disability coverage or Life Insurance coverage, it’s important to have this coverage on your Car Insurance.
5. High Liability Limits and an Umbrella Policy – If you cause a car accident, your personal assets can be at risk if you don’t have enough Liability Coverage to make up for the injuries and damages. In Pennsylvania, drivers are allowed to have the state minimum of $15,000.00 of Liability Coverage per person. I recommend that you have much much more in order to protect your personal assets if you cause a serious accident. Liability of coverage of at least $100,000.00 or potentially much more if you can afford it is advisable.

In addition, you should talk to your insurance agent about purchasing an Excess or Umbrella Policy. It is likely that you can get a million dollars of Excess/Umbrella Coverage for $200 – $300 per year. That coverage stacks on top of all of your insurance, Car Insurance and Property Insurance, to protect your personal assets if you cause an accident and get sued.

BONUS TIP: Life Insurance – Although it is unrelated to Car Insurance, one of the best gifts that you can give to your family is the foresight of purchasing significant Life Insurance. Nobody wants to think about their mortality, but if something happens and you are no longer around, Life Insurance insures that your family will have the financial ability to move forward without your income. Please talk to your agent about the cost of a million dollar Life Insurance Policy or more if you can afford it.

Tim Rayne is a Car Accident and Personal Injury Lawyer with the Chester County law firm MacElree Harvey. For over 25 years, Tim has been helping injured accident victims understand their rights and receive fair treatment from insurance companies. Tim is a lifelong resident of Kennett Square and has offices in Kennett and West Chester. Tim can be reached at (610) 840-0124 or [email protected].