News

The Pennsylvania Supreme Court recently granted allocatur in a zoning case involving, among other things, the role of the appellate courts and standard applied upon review of credibility determinations made by municipal zoning boards.

Protect PT (“Appellant”) objected to the application for special exception of Olympus Energy, LLC (“Appellee”)to develop oil and gas operations (unconventional gas wells), in a process commonly known as ‘fracking.’ Appellee’s application involved a 53.5-acre property located at in the Mineral Extraction Overlay (MEO) of Penn Township’s Rural Resource (RR) Zoning District.

The Penn Township Zoning Hearing Board (“Board”), granted Appellee’s application (subject to certain conditions), concluding that, in its objections, Appellant “failed to establish sufficient, credible evidence that if [Appellee] has been found to have met the Ordinance requirements and the application is granted, with conditions, that the said use would create a high probability that an adverse, abnormal or detrimental effect will occur to public health, safety and welfare.”

The Westmoreland County Court of Common Pleas (“Trial Court”) affirmed the Board’s decision, and Appellant appealed.

In an unpublished opinion affirming the Trial Court, the Commonwealth Court noted that, “Because [Appellant] pointed to evidence of traffic counts and hazardous road conditions, it met its burden of proving that the proposed use will generate traffic that threatens health and safety,” and further, that Appellant’s expert witness testified “[Appellant’s] construction and operation will result in air emissions and significantly increased exposure to volatile organic compounds such as ozone and particulate matter that is not usually experienced in the Township.” Protect PT v. Penn Twp. Zoning Hearing Bd., 238 A.3d 530,  (Pa.Cmwlth. 2020), appeal granted in part, 243 A.3d 969 (Pa. 2021).

Appellant argued that the foregoing evidence went uncontradicted in the proceedings before the Board, but the Court held, “[a]ssuming the record contains substantial evidence, we are bound by the [B]oard’s findings that result from resolutions of credibility and conflicting testimony rather than a capricious disregard of evidence. [The Board] is free to reject even uncontradicted testimony it finds lacking in credibility, including testimony offered by an expert witness.” Id.

In a separate opinion, Judge McCullough, while concurring in the Court’s decision, noted concern that “judicial review in matters such as the one presently before the Court has been severely reduced to a point where this Court functions merely to ascertain whether a zoning hearing board found the objector’s evidence credible.” Id.

The Supreme Court may share in Judge McCullough’s concern, given one of the limited issues upon which allocatur was granted: “Whether the Commonwealth Court’s opinion conflicts with the Court’s previous application of the capricious disregard of evidence standard and creates an issue of such substantial public importance as to require prompt and definitive resolution by this Honorable Court?”

 

Lindsay Dunn is a partner in MacElree Harvey’s Land Use Department and represents diverse clientele in matters related to zoning, land use, and construction litigation. She can be reached directly at (610) 840-0202 or [email protected].

The Centers for Medicare and Medicaid Services (CMS) has issued new guidance on whether families can visit loved ones in nursing homes. The guidance allows indoor visitation even when the resident has not been vaccinated.

The coronavirus pandemic has hit long-term care facilities particularly hard, with more than 170,000 residents and employees dying of COVID-19. Most nursing homes have had at least some restrictions on visitors in place since the start of the pandemic in March 2020. Some nursing homes have banned all visitors, some allow visits by appointment only, and some restrict visitation to outdoors only. The absence of close contact with loved ones has been extremely difficult for both residents and their families over the past year.

Now that millions of vaccines have been administered to nursing home residents and staff, CMS has revised its guidance on nursing home visitation. The new non-binding guidance notes that outdoor visitation is preferred, even when both the resident and visitor are fully vaccinated. However, the guidance goes on to advise that indoor visitation should be allowed regardless of the visitor’s or resident’s vaccination status in most situations. CMS recommends limiting indoor visitation in the following circumstances:

• If the resident is unvaccinated and the county’s COVID-19 positivity rate is greater than 10 percent and less than 70 percent of the residents in the facility are fully vaccinated.
• The resident has a confirmed COVID-19 infection.
• The resident is in quarantine because of exposure to a person infected with COVID-19.

CMS also states that while physically distancing should be maintained, a fully vaccinated resident may choose to have close contact with a masked visitor who performs good hand hygiene before and after.

If the nursing home has a resident or staff member who tests positive for COVID-19, the CMS guidance recommends that visitation be suspended until the entire facility has been tested. If the outbreak is contained, then visitation can continue, but if additional cases are found, then CMS recommends suspending visitation once again.

While the CMS provides recommendations, each state is free to make its own visitation rules.

To read the guidance, click here.

For resources on visiting long-term care facilities from The National Consumer Voice for Quality Long-Term Care, click here.

 

To learn more or seek help with your Elder Law matters, contact Kristen Matthews at [email protected] or call (610) 840-0272.

The COVID-19 Pandemic highlighted the importance of Force Majeure Clauses in contracts, in particular those contained in leases for commercial real estate. A force majeure event is an extreme event that arises and prevents the impacted party from performing its obligations under the lease at issue. The government mandated shutdowns that took place beginning in March of 2020 are an example of an event that may qualify as force majeure and, at least temporarily, excuse performance by the impacted party under the lease. Other types of events that may qualify as force majeure are war, strike, riots, and acts of God, to name a few.

In negotiating the force majeure provision contained in the lease, the objectives are two- fold:  (1) to define those events as specifically as possible that permit the impacted party to obtain relief; and (2) define the nature of the excused performance by the impacted party. Force majeure clauses are strictly construed so, from a tenant’s standpoint, it is beneficial to make the clause as broad as possible and state specific events that will trigger the clause. With regard to the excuse of performance, a landlord will often agree to delay performance, in most cases the payment of rent, but it is very unlikely that the landlord will consent to the forgiveness or a complete abatement of the rent. As such, whether it is the landlord or tenant negotiating the force majeure provision, it is important to be clear on the precise events that will trigger the provision and the precise remedy that will be afforded the impacted party.

Due to the fact that performance, (in most cases the nonpayment of rent) will only be temporary, it is important for tenants, but landlords as well, to make sure that they are adequately insured against force majeure type events and that the contractual language of the insurance policies cover the events. While tenants will typically be the first and most directly impacted by the loss of business, the landlord can also be impacted if tenants cease operations for substantial periods or end up going out of business. As such, it is important for both the landlord and tenant to be adequately insured.

Business Interruption Insurance typically covers losses resulting from direct interruptions to business operations and may generally include lost revenue, fixed costs such as rent and utilities, and other expenses related to temporary or relocated operation. A contingent Business Interruption Insurance policy can additionally cover lost profits and indirect costs that are incurred due to impacts to third parties relied upon by the insured to conduct business. Over the course of the last 20 years, in response to smaller viral and bacterial outbreaks, the scope of insurance policies were narrowed to exclude such outbreaks from standard business interruption policies. Thus, diligence and close examination of both leases and insurance policies are critical.

As the U.S. economy reopens and both landlords and tenants negotiate new leases or renegotiate existing leases, it is more important never to focus on the specific terms of a force majeure clause as well as the specific terms and coverage of Business Interruption Insurance.

We have asked a lot of our seniors over this last year.  Stay home, stay safe, and if you’re not already tech-savvy, please quickly navigate the steep learning curve. As an Elder Law attorney, and caregiver for my own grandparents, I want to share a few of the areas where I have personally seen technology add significant obstacles to seniors’ everyday lifestyle over this last year.

Zoom/FaceTime Meetings with Family

Seniors living in the community have had less restrictive visits with friends, family and caregivers. Meanwhile, those senior residents of long term care facilities have had limited, if any, access to in person contact with their families in many cases for almost a year now. Zoom meetings and FaceTime calls have been an option for those seniors who have devices and who are able to facilitate those calls.  

The Pennsylvania Department of Aging (“Aging”) has been made aware of this accessibility issue, as well as other technological concerns, and are working to deliver funding in several important areas. First, Aging is purchasing smart phones, tablets, and other devices and getting them into the hands of senior centers, nursing homes and other long term care facilities. Studies are showing that lack of face to face interaction has led to an increase in depression among seniors. These devices will be integral in enabling seniors to stay connected with their families, friends and loved ones.  

Tele Med

Many medical providers have moved either entirely away from in person services, or have severely limited accessibility to in person appointments.  Providers now offer their patients Tele med appointments, particularly for those routine and non-urgent medical appointments. For seniors lacking requisite devices, and with calendars scheduled around their doctor appointments, many are unsure how to stay connected with their care providers. Aging’s outreach at this point seems focused on getting devices to seniors in care facilities, overlooking those seniors still living independently in the community.

Grocery Shopping

Fairly early on, most major grocery stores and retailers offered “senior hours,” an hour window in the early morning when stores would be accessible solely to seniors. But for those seniors who are not early risers, or who were simply too worried to shop in person, grocery shopping apps offered a viable solution. However, many seniors do not have the accessibility to smart phones and Wi-Fi, and those owning smart phones often lack the dexterity and eyesight necessary to navigate the apps.  

Caregiving

Some grandparents have even found themselves taking on the role of caregiver and teacher to their grandchildren, now learning virtually. Seniors are learning to navigate devices and programs in order to keep their grandchildren engaged and on track, fearful not to let the kids fall behind academically. Aging has been made aware of these difficulties and has targeted Caregiver Support services to aid seniors in meeting the technological needs of their grandchildren. Still much work remains to be done in this area in terms of outreach and education as seniors may be unaware that such Caregiver Support services are available, or may be unsure how to access such services.

Access to COVID Vaccine

Finally, and maybe most immediately significantly, seniors are facing hurdles in accessing the COVID vaccine. Long term care providers have carried out a heroic effort in getting its residents and staff vaccinated.  Still, those seniors living independently in the community remain unclear about how they can gain access to the vaccine. My grandfather can proudly (and does proudly) report that he has now received both of his COVID shots courtesy of the Coatesville Veterans Administration. The VA’s outreach efforts are familiar to seniors – simply call or stop by the VA and receive your vaccine.  On the other hand, I have had to assist my grandmother in enrolling on waiting lists at area hospitals, as such enrollment is done electronically.  Traditionally seniors turn to their primary care doctor for guidance, however most doctors offices still have not received access to the vaccine.  Aging has undertaken an effort to educate seniors about accessing the vaccine, however still, those lacking the technological savvy and devices are unsure where to gain access to the vaccine.

Our seniors want to stay in touch, to be informed, and to feel safe. If a senior in your life could benefit from training on a device, please take the time and help them navigate this steep learning curve. If you would like more information on services available to seniors and their caregivers, please visit the Pennsylvania Department of Aging’s website at www.aging.pa.gov or email [email protected], a recently formed group dedicated to helping people get access to the vaccine.

MacElree Harvey is pleased to announce the election and promotion of Stephen M. Porter to Partner. Steve joined the firm’s Estate Planning Department in 2018. Prior to joining MacElree Harvey, he owned his own private practice. Steve most recently graduated from The Mid-Atlantic Fellows Institute of the American College of Trusts and Estates Counsel, which is a program that develops future leaders in trust and estate law through a series of in-depth educational presentations led by subject matter experts. Steve strives to build trust and strong relationships with his clients so that he can provide sound legal advice and representation. In addition to practicing law, he believes in giving back to the community. He has served on the Board of Directors of various nonprofits, and is a member of the Rotary Club of Phoenixville, where he served as President in 2015.

Congratulations Steve!