Articles by Our Attorneys

It’s been seven weeks since we were driven into semi-isolation. For most of us, it came without warning, separated  us from our accepted daily lives, our families, colleagues and friends, and forced upon us a new reality and an altered perspective. For those of us who are “senior citizens” and especially susceptible to this Covid-19 virus, it has brought into stark contrast ourselves and those on the front lines – doctors, nurses, police officers, EMT’s, military personnel, truck drivers and deliverymen, food suppliers, warehouse workers and so many other brave souls actively engaged while this “war” is on. While staying out-of-the-way, we are buoyed by John Milton’s observation, “They also serve who only stand and wait”.

Even in this dark and foreboding time of economic uncertainty and deprivation for so many, this time of “living dangerously”, the strength and spirit of the American people has once again arisen on so many fronts, much like it has done before during the Second World War, 911 and other hard and uncertain times. But it now appears that folks are getting antsy and business owners and their employees deprived of their livelihoods by government enforced closures have just about had enough, and are demanding to get back to work. Seems to me a real necessity that can’t be long denied, one way or the other.

It has been especially fortuitous, however, that we find ourselves in the 21st century, a time when our home computers, email, Zoom, Skype and other electronic services allow us to connect to those with whom we routinely personally interacted most every day before this chastisement struck. The business and professional worlds have become “virtual”. We can now visit with our physician and our lawyer, live and in person, on our computers and fulfill a host of tasks without leaving the safe harbor of our homes, that we once accomplished from or in an office. From here on, it’s sure to change the way our society does business. Over the past few years record-keeping has gone “virtual’ as well, replacing the now antiquated “paper file”, with apologies to us “old-timers” who still much prefer “hard copies”. Speaking from personal experience, I haven’t been in my law office for two months, yet have computer access to all of the client files for which I have responsibility. So, I have continued to work from home and communicate with colleagues and clients, thanks to these modern-day technological advances.

For those of us hunkered down at home, the slow emergence of Spring, bringing with it warmer days, and even here in Pennsylvania occasional days of sunshine, has freed us during a portion of the work day and weekends to spend some time out-of-doors, preparing the flower beds  for planting, working through Spring clean-up, filling our flower pots with pansies and sweet alyssum and starting the summer  “Victory” garden. That last item is what those of us with inherited “farmer” DNA consider a ritualistic “labor of love”, and in these days might well be considered a real necessity. In my experience of practicing law and judging legal cases for many years, I have always found it one of the most satisfying of life’s pleasures. As one grows older, you come to fully appreciate the continuing ability to enjoy a multi-dimensional life as a priceless gift from the good Lord.

When we began to experience the empty grocery shelves and experienced some difficulty in getting necessary provisions by “virtual” shopping, I thought a few chickens might be a good idea, yielding fresh eggs in the morning, and maybe, “a big fat hen” for Sunday dinner. My apologies to those gentle readers who didn’t grow up on a farm in the post-depression 1940’s just after the War years, who might shirk from such barbarity, but it’s what we county boys did before supermarkets. I must confess that in my youth I routinely collected eggs from the hen house and lopped off a few heads, at parental direction of course. On reflection though, I decided that wouldn’t be such a good idea given the foxes who reguarly visit our yard of a morning hoping for a fat squirrel for breakfast. The foxes are smart critters and “know” the squirrel’s hang around the bird  feeders. They also have distinct appetites for chickens.

Mary Wade Myers, Esquire, a now-retired member of the Chester County Bar, used to grace the pages of the Bar Associations “New Matter” quarterly magazine with accounts of her life away from the practice of law on her farm, tending to her stock, which brought to life for all of us the agrarian pursuits that provided her such joy. She had the literary gift that allowed her to imbue those creatures she cared for with their own quirks and personalities. I thought about her as I prepared this article, since she always reminded me that lawyers and judges are “folks” just like everybody else, which is the message I hope comes through in what I have said here. By the way, the old fellow pictured on the John Deere that accompanies this bunker report is the author.

By: Adesewa Egunsola, Esquire

On May 6, 2020, the Pennsylvania Senate signed and presented to Governor Wolf a bill which seeks to raise the minimum age to receive a marriage license to 18 years of age, with no exceptions.

Currently in Pennsylvania, as is the case in many other states, individuals under the age of 18 may obtain a marriage license if either the court decides it is in the best interest of the applicant, the consent of a parent or guardian with custody of the child is personally given before the person issuing the license, or if consent is certified in writing with the signature of two adult witnesses and is acknowledged before an officer authorized by law to make acknowledgements.

A correlation has been established between early marriages and an increased defenselessness to domestic violence, as well as negative effects to health and education. It is the hope of the legislature that this bill will protect children (some as young as 12, according to marriage license data) from being coerced into early marriages and exploited in this manner.

The Pennsylvania legislature is hoping by raising the minimum age for receiving a marriage license and eliminating exceptions to this rule, it will address

Now that the General Assembly has approved the bill and sent it to the Governor, the Governor may either sign the bill making it law, veto the bill, or he can take no action for ten days while the General Assembly is in session allowing it to become law as well. If the Governor does veto the bill, the General Assembly will still have the option of overriding the veto.

An evening a few weeks ago but still contained within the world remade by COVID-19, I walked the empty streets of my suburban Pennsylvania town thinking about the new doses of stress and anxiety infiltrating otherwise mundane existences. As a Family Law attorney, I am no stranger to the overwhelming uncertainty my clients face as they feel like their lives are being upended by a divorce or custody battle. Through years of tough conversations, I’ve found that one simple piece of advice always anchors my guidance: do the right thing.

While we are each experiencing a radical change in the way our own worlds work and might feel a bit unmoored from the lives we thought we knew, I hope that some of the lessons I’ve learned from my years of practice can help you do the right thing too.

Go Long

Even though I’m no Carson Wentz, I find myself most often encouraging my clients to go long in weighing the consequences of various decisions. Whether people are going through a divorce or dealing with an ex-spouse, I frequently field questions and concerns like:

• Should I make this acquisition or change in my business? If I make more money, I will owe more to my spouse.
• I have this great opportunity to go back to work, but my support will go down?
• Today I was offered a great promotion, but I am concerned that this will increase my support obligation.

All decisions have short and long term consequences. While it can be difficult in the face immediate anxieties or needs, considering the long-term implications of decisions is especially important in times of crisis. A boon for your business or a new opportunity at work will give your family greater economic stability farther into the future. Whether clients can imagine it from the eye of their personal storm, their divorce and support obligations will eventually be over. They will reap the benefits of these positive long-term decisions for the rest of their lives.

Keep the Kids Out of It

This advice holds far beyond the new operating rules of the home office. When it comes to your divorce, custody, or support case, your children do not want to know the details. From five years to twenty-five years old, no child wants to feel like they must take sides. This advice can be especially hard with older children, where the temptation to “explain your side” can be the hardest to resist.

Over my years of experience, including with my own five children, I have come to the conclusion that all kids are smart and resilient.  They will make their own decisions about everything, including their parents.  Over the course of their lives, your kids will decide who they stay with when they are home from college, who to call on birthdays and special occasions, and whether they want to go on a family vacation with you. Their decisions about these positive moments in their development will be based on what they’ve learned from watching you and your spouse behave during the negative or difficult times.

Every parent ultimately hopes to have a positive relationship with their child. Don’t let bad judgement now ruin bonds for years to come.

Be Transparent

Nine times out of ten, a client at one point or another will pose some version of the same question: “do we have to tell my spouse about…?” Divorce can bring out strong and sometimes overwhelming feels of suspicion, distrust, and hostility. These emotions are only made worse by attempts to deceive or omit the truth from the process. The best weapon we all have in making proceedings as survivable as possible is transparency.

Deception also tends to come at price beyond the emotional toll. Realistically, hiding anything from your spouse is next to impossible. If you look hard enough, there is a record somewhere of every financial transaction that we engage in over the course of a marriage, even the Uber ride to your boyfriend or girlfriend’s house. When one party goes out of their way to hide certain items or forgo transparency, the additional motions with the court needed to uncover information and the additional attorneys’ fees paid to file can run up an even bigger price tag quickly.  The failure of a full and fair disclosure can even land clients back in court after their divorce is complete for a re-opening of the decree or settlement.

While the truth might not always be the most pleasant in the present, the cost of hiding it will always outweigh any benefit you might gain from trying.

Practice Practicality

There are no winners in Family Law cases. If you’ve gained else from this article, remember that simple truth. Family Law is practice of compromises and as with any good compromise, both parties should leave feeling like they lost.

When confronted with feelings of unfairness, clients will frequently escalate by requesting we “go to court.” I love being in court.  I’m more than happy to pack up my briefcase and head downtown. However, like any good attorney, I know it’s my job to inject a dose of practicality to the situation. Simply put, court is expensive, and no one leaves with a complete victory. Court is not often in the best interest of the client, but compromise frequently is.

While it is difficult to have these practical discussions with your client, it is in their best interest to do so prior to going to court.  You are better hearing some of these popular refrains from your lawyer before-hand than learning them with an added bill from a lecture from a judge:

• “It is in the best interest of your children to have shared custody with your spouse.” 
• “Yes, you do in fact have to buy your spouse out of the business that you built.”
• “Alimony is indeed reasonable in this situation.”
• “You do have to go back to work, and you do have an earning capacity.”

Doing the right thing is not always easy. In times of crisis, both personal and of pandemic proportions, it can feel impossible. If you are not sure what is the right thing in your case, call me off the clock, and we can discuss it.

Brian L. Nagle  •  J. Charles Gerbron, Jr. •  Lindsay A. Dunn • Matthew M. McKeon

Of Counsel: Ronald C. Nagle •  Jane M. Shields  •  Cara E. Williams

Pennsylvania’s response to the COVID-19 pandemic is constantly developing, and the recent actions below will affect construction and land use/land development applications in the Commonwealth.

Governor Wolf Announces Limited Construction Activities to Resume May 1

• On April 20, Governor Wolf amended his prior order closing non-life-sustaining businesses to allow public and private residential and non-residential construction to resume in-person operations statewide beginning May 8. On April 22, Governor Wolf announced the start date would be moved up to May 1.
• These construction activities will be subject to the safety and social distancing requirements announced by the Secretary of Health on April 6 and April 15. Additional guidelines will be announced by the Wolf administration shortly.

Act 15 Affects Hearings and Decisions on Land Use and Development Applications

• On April 20, Governor Wolf signed Act 15/Senate Bill 841 (“Act 15”) into law. Act 15 tolls the number of days within which a local municipal body (including governing bodies, zoning hearing boards, commissions, and municipal authorities) must review, hold a hearing on, and decide applications. It also tolls time limits related to prior approvals (e.g., construction start date, appeals).
• The time is tolled as of March 6 (the date of the Governor’s Proclamation of Disaster Emergency [the “Proclamation”]) for applications received or conditional approval made prior to March 6, and will resume on May 20. The time for applications received after March 6 will be tolled as of the date the application was received and will begin May 20.
• The municipal body shall provide written notice to applicants and parties affected by this extension of time, but lack of notice will not defeat the tolling of the time limits.
• Municipal bodies may – but are not required to – conduct a hearing or meeting by an authorized telecommunication platform prior to the termination of the Proclamation. These meetings or hearings will have amended requirements for notice, quorum, minutes, and public participation.
• Before May 20, applicants may request a hearing or meeting on their application to occur prior to the termination of the Proclamation. If the municipal body authorizes the hearing or meeting, the applicant and other parties receiving notice waive challenges to the proceedings based on failure to comply with 65 Pa. C.S., Chapter 7 or other law governing procedural requirements.

If you are unsure about how these developments may apply to you or have other land use questions concerning COVID-19, please contact Matthew M. McKeon at [email protected] or at (717)-574-5534, or another attorney in MacElree Harvey’s Land Use Department.

The Pennsylvania Court recently considered a daughter’s claim that an attorney had tortuously interfered with an inheritance that she expected from her mother. In doing so, the Court confirmed that a cause of action for interference with expected inheritance exists under Pennsylvania law but affirmed the trial court’s determination that the facts pleaded in the Complaint were insufficient to entitle the daughter to relief.

In the case, Fiedler v. Spencer, E. O’Rean Fielder alleged that in 2004, she took her mother, Betty J. Fiedler (“Betty”), to Attorney Patti S. Spencer’s office to have a Will and general Power of Attorney prepared. Attorney Spencer prepared the Will and Power of Attorney naming Betty’s daughters, Fiedler and Latisha Bitts (“Bitts”), as co-executrices and equal co-beneficiaries of her estate, and co-agents under her Power of Attorney.

Over the next two years, as Betty’s health deteriorated, the Power of Attorney was activated and Fiedler and Bitts began to manage Betty’s financial affairs. In 2006, Betty made gifts in the form of checks to Fiedler, Bitts, and, notably, Bitts’ son, Adam Buckius (“Buckius”). That same year, Betty executed a new Will and Power of Attorney naming Bitts as sole executrix and agent, and Buckius as Successor Executor under the Will.

Fiedler further alleged that over the next three years until Betty’s death in September 2009, gifts were made on behalf of Betty and signed by Bitts—including a $330,000.00 check to Buckius to buy a house—and additional checks totaling $150,515.00 almost exclusively to Bitts, Buckius and his wife, and Bitts’ stepson and his wife.

Fiedler filed a Complaint on January 25, 2010, against Attorney Spencer, along with Bitts, Buckius, and Buckius’ wife. In her Complaint, Fielder alleged that Attorney Spencer’s “actions were fraudulent in that she advised Bitts that she could make the $330,000.00 gift in furtherance of Bitt’s [sic] scheme to deplete Betty’s assets” and violate Betty’s testamentary intent. She further alleged that Spencer and Bitts had conspired to remove her “from any position of authority with respect to her mother’s financial affairs so that Bitts could deplete Betty’s estate prior to Betty’s death and eviscerate Betty’s testamentary intention to have her estate divided evenly between Plaintiff and Bitts.” The trial court dismissed Fiedler’s claims with prejudice by order dated May 9, 2019 and Fiedler filed a notice of appeal to the Superior Court.

On appeal, Fiedler claimed, among other things, that the trial erred as a matter of law in dismissing her claim for tortious interference with inheritance claim. The Superior Court rejected Fiedler’s argument and affirmed the trial court’s Order dismissing the Complaint.

In doing so, the Superior Court explained that Pennsylvania law has recognized a cause of action for interference with expected inheritance for over a century. To make out a prima facie claim, the plaintiff must plead that: (1) the testator indicated an intent to change her will to provide a described benefit to the plaintiff; (2) the defendant used fraud, misrepresentation, or undue influence to prevent execution of the intended will; (3) the defendant was successful in preventing the execution of a new will; and (4) but for the defendant’s conduct, the testator would have changed her will. 

The Superior Court acknowledged that the Restatement (Second) of Torts sets forth a more expansive test for intentional interference with an inheritance or gift. That standard, which would include inter vivos transfer, is “[o]ne who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.” The Superior Court explained, however, that Pennsylvania has not adopted the Restatement’s view to include inter vivos transfers. Rather, Pennsylvania law requires the plaintiff to plead that the decedent had sought to make changes in her will to plaintiff’s benefit, and that the defendant, through means of fraud, misrepresentation, or undue influence thwarted the decedent’s intent.

The Superior Court held that because Fiedler did not allege that Betty expressed an intent to alter her will to benefit Fiedler, or that Attorney Spencer prevented the execution of such a will, Fiedler was unable to satisfy the elements required to prove intentional interference with an inheritance under Pennsylvania law.

J. Charles Gerbron, Jr., Esquire is a partner in MacElree Harvey’s Appellate Practice Group. Charlie can be reached at 610-840-0265 or [email protected].

Timing in life is important. This is particularly true in divorce. Generally, one spouse but not both will benefit from the passage of time in a divorce case. In an economic downturn, business owners and breadwinners benefit. Lower incomes generally yield lower child support and alimony payments. Interrelatedly, an economic downturn may provide an opportunity to reduce an existing child support and/or alimony obligation, if it creates a substantial adverse change in circumstances outside through no fault of the paying party. In divorce cases, business interests may be valued far lower than in a time of economic prosperity. Additionally, if marital debt is leveraged against the family home in a mortgage, the wage earner may enjoy a more favorable property division. While no two cases are the same, an economic downturn may yield significant advantages to wage-earners and business owners in a divorce.

If you have questions related to divorce, please contact Patrick Boyer at 302-654-4454 or [email protected].