Articles by Our Attorneys

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].

It depends. To be found in contempt, the Court must find that a party willfully disobeyed a Court Order in a meaningful way when they had the ability to comply with the Order. Courts generally expect parents to exercise good judgment and common sense in dealing with the other parent, preferring to elevate substance over form. If you find yourself in a crisis situation that prevents a parent from following the custody schedule, that parent should communicate with the other parent and try and find an amicable solution. Such solutions may include trading time or offering make up time. If the schedule is unworkable, a parent may file to modify the schedule, although the existing schedule remains in place until the Court issues a new Order. A parent should also communicate with their attorney about the crisis to get advice on how to proceed rather than making unilateral decisions to violate the Court Order.

If you have questions about adhering to a custody order during an emergency, please contact Patrick Boyer at 302-654-4454 or [email protected].

Does the Court have jurisdiction over my divorce? In a divorce case, there are two types of jurisdiction, “in rem” and “in personam.” A Court’s “in rem” jurisdiction refers to its authority to enter a decree of divorce. In Delaware and Pennsylvania, at least one spouse must have been a bona fide resident of the state for the six months preceding the filing. A Court can grant a divorce decree regardless of whether it has “in personam” jurisdiction.

The authority to divide marital property, award alimony, and enter other financial relief ancillary to divorce refers to a Court’s “in personam” jurisdiction. To have “in personam” jurisdiction, the responding spouse, if a non-resident, must have sufficient “minimum contacts” with the forum state. This generally involves whether and to what degree the non-resident spouse has ties to the forum state, such as, whether they conduct business in the state, whether they obtain any benefit from the forum state, and whether it would be fair to bring them into Court in that state. A party objecting to a Court’s “in personam” jurisdiction must raise this objection in their first filing with the Court, or the objection may be waived. Similarly, if the non-resident spouse is personally served within the forum state, the objection is also waived.

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

When the Family Court issues a final order, litigants may appeal that order to the Delaware Supreme Court within 30 days. Generally, to raise an issue on appeal, a party must have fairly presented that issue to the Family Court. An important consideration is the standard of review, that is, what type of scrutiny the Delaware Supreme Court will employ in evaluating the questions presented on appeal. Questions of fact, such as whether the Family Court correctly understood the evidence, will generally be reviewed under a clearly erroneous standard of review. That is, if the appealing party cannot show that the Family Court’s understanding of the record was not clearly wrong, its decision will be upheld. Similarly, the Supreme Court will generally not disturb findings of credibility, or the weight given to the evidence presented. If the question appealed involves an exercise of discretion, such as the percentage division of marital property in a divorce matter, the standard of review is whether the Family Court abused its discretion. This generally means that if the exercise of discretion is within the broad range of reasonableness, the Family Court’s decision will be upheld. The most favorable standard of review is called “de novo” review. This means that the Supreme Court will look at the question anew, without any deference to the Family Court’s order. This standard of review is employed to questions of law. Generally, the appeals with the best prospect of success involve questions of law.

If you have a question about whether an appeal is in your best interests, please contact Patrick Boyer at 302-654-4454 or [email protected]