Legal

2019-the-I-dos

The (I) Dos and Do Not’s of Pennsylvania Wedding Law

There are few periods of a romantic relationship as hectic as wedding planning. From the time she (or he) says yes, until you finally say, “I do,” you and your significant other will contractually commit to anything from a venue to an ice sculpture, and everything in between. Wedding planning is meant to be a […]

There are few periods of a romantic relationship as hectic as wedding planning. From the time she (or he) says yes, until you finally say, “I do,” you and your significant other will contractually commit to anything from a venue to an ice sculpture, and everything in between. Wedding planning is meant to be a time when lifelong dreams are made into realities and knowing what to look for in your wedding agreements can help those best-laid plans from turning into nightmare fuel.

While your significant other may beg to differ, there is nothing particularly special about the contracts you sign leading up to your wedding: to be enforceable they must comply with Pennsylvania contract law.  What does make the wedding contract unique what surrounds it – the pressure to get the perfect venue, the must-have photographer, or that florist you’ve been following on Pinterest for five years – and wedding vendors/venues can use this emotion to their advantage to get you to agree to terms you wouldn’t under any other circumstances.

Following these simple principles of contract law can help you know when to say “I do” or “I don’t”:

  1. Don’t get stuck with an Adhesion Contract – An Adhesion Contract is one that you sign without the value of a bargain, and often under duress. What does that mean? If a vendor or a venue says, you have to sign the contract as its written, take-it-or-leave-it, without giving you the ability to negotiate terms that are clearly written to benefit them; it may be an adhesion contract. This, combined with the first-come-first-served pressure of wedding planning, those one-sided contract provisions may be unenforceable.
  1. Gone with the windfall – For more than a century in Pennsylvania, it has been the law that a contract cannot be worth more cancelled than if completed. What does this mean for your wedding contracts? By way of example, a venue cannot arbitrarily charge you a penalty for cancelling your wedding just to deter you from cancelling.  In Pennsylvania, if you cancel your wedding, the wedding venue would only be entitled to the profit they could have reasonably expected to make on your event.
  1. Not so Non-Refundable Deposits – A rose by any other name may still smell as sweet, but a penalty by any other name is just as unenforceable. “Non-refundable deposits” are a great example of terms found in adhesion contracts, and are often penalties masquerading as damages clauses. Few wedding vendors/venues will let you book the date without putting money down, but just because you put money down doesn’t mean you can’t get it back.  If that “non-refundable” deposit isn’t reasonably calculated to anticipate the vender’s damages, it could be an unenforceable provision, and you may be able to get it back.
  1. If they don’t mitigate, you can litigate. Regardless of whether it’s written into your wedding contracts or not, if you cancel on a vendor/venue, they have a duty to take reasonable steps to “mitigate” their damages. This often means that they have to make some attempt to rebook the date.  Unlike damage provisions, the pressure is on you to show that they haven’t attempted to mitigate their damages.  The concept of mitigation works to protect you in several ways: first, if they rebook the date and make the same amount of profit, you could be off the hook, and second, if they rebook the date but make less profit than they would have if you had not cancelled, it could reduce what you owe.
  1. Know what you’re worth. While the language of a contract can be confusing, it’s important to read it through and understand what you’re obligations are. In Pennsylvania, contracts are limited to the words on the page. Just because you talked about using the venue’s in-house catering service, does not necessarily mean your contract obligates you to do it, or that the venue can reasonably expect the same when determining its damages.

It’s easy to get lost the sea of legal jargon that makes up the typical wedding contract, and that’s why it’s important to consult an attorney to help you navigate the storm. Often an ounce of prevention is worth a pound of cure, and a relatively small amount of money spent having an attorney review your wedding contracts prior to signing could save you thousands on the back end.

After all, who wants to bargain for the cancellation provision in your wedding contracts in front of your fiancé? Have a lawyer do it for you!

 

An attorney with Gross McGinley, Nicholas Sandercock provides counsel to individuals and businesses in litigation matters. Since planning his own wedding in Lehigh County, Nick has worked with individuals and wedding industry professionals to ensure they understand the contracts they are signing and any obligations and risks they may be assuming. Nick also counsels couples who feel a vendor or venue may not have fulfilled their obligations or is attempting to keep deposits/fees to which they are not entitled.

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2019-blended-families

Legal Considerations for Blended Families

Once you have navigated the highs and lows of wedding planning, you can begin your life as a married couple. In the last decade or so, there has been an uptick in blended families.  Some of this is due to traditional second marriages, but some are because individuals are choosing to have children without feeling […]

Once you have navigated the highs and lows of wedding planning, you can begin your life as a married couple. In the last decade or so, there has been an uptick in blended families.  Some of this is due to traditional second marriages, but some are because individuals are choosing to have children without feeling the need to get married. Whatever the reason, with this increase in blended families, the legal implications should be addressed.

What is a blended family? There is no legal definition of blended family, but the term has come to describe when two parties with children of their own marry and create a new family unit. With the creation of this new family unit, come additional considerations for all involved, for example:

Is there is custody order for the children?

While you may have married and created your new family unit, you cannot forget that the children involved have other parents as well. If there is a custody order, the child may very well have to travel back and forth for periods of custody. As a new step-parent, you may be responsible for some of this transportation, and with it, interaction with your spouse’s ex. It is in the best interest of all involved that all the adults develop some relationship with one another, which can be easier said than done. Remember, you not only will be sharing custodial time with another household, if you are doing it right, but you will also be at extracurricular and sporting events for the children as well.  Life is complicated. If you find yourself entering into a blended family, it is highly advisable to establish a formal custody agreement, so all the parties know their roles going into it. However, it is important to keep in mind that if you are a step-parent, there will be times you need to take a back seat and let the parents make the major decisions.

Finally, if there is a custody order in place, and the child at issue lives in your household, you will be precluded from relocating. As a new step-parent of a three-year child, it is important to know that you and your new spouse cannot move out of the county with the child (without the other parent’s permission or the court’s permission) for the next 15 years. That is quite the commitment.

Is there a child support order?

With or without a formal custody order, there may be a child support order. This means additional income is either coming in or going out of your new household unit. Developing a family budget is always important, but it becomes especially important in blended families. Each family may choose to treat child support coming in differently, and it is important to have those discussions in advance. It is just as important to address child support obligations your new family unit must pay out.

 

What about estate planning?

Finally, how does this all impact estate planning? A step-parent is not a legal next of kin for a step-child. Accordingly, it is very important to meet with an estate planning attorney to review your options and prepare all the necessary estate planning documents for your new blended family.

Attorney Kellie Rahl-Heffner of Gross McGinley, LLP provides counseling to families facing domestic issues including separation, divorce, child custody, and child support. Krahl-heffner@grossmcginley.com

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What is Workplace Harassment?

There is a lot of misunderstanding as to what “workplace harassment” is. Specifically, we need to ask, what illegal workplace harassment is. The reality is that there is a lot of harassment in the workplace that is perfectly legal. Stated otherwise: In “at will” states such as Pennsylvania you can harass an employee for no […]

There is a lot of misunderstanding as to what “workplace harassment” is. Specifically, we need to ask, what illegal workplace harassment is. The reality is that there is a lot of harassment in the workplace that is perfectly legal. Stated otherwise: In “at will” states such as Pennsylvania you can harass an employee for no reason or any reason except an illegal reason. What is illegal harassment, therefore?

Harassment in the workplace is sometimes called “a hostile work environment” and is properly characterized as a form of discrimination. It is this “discrimination” component which differentiates illegal harassment from harassment which is not covered by the law. Since illegal harassment or hostile work environment is linked to discrimination, it must, therefore, relate to a federal or state law making the discrimination at issue illegal. To discriminate means to treat unequally- but if I harass or even fire my secretary “unequally” and unfairly because she is a Cowboys fan and the other secretaries are Eagles fans, this type of unequal treatment is not actionable. What are the laws therefore upon which a harassment claim may be based? The main ones are the Civil Rights Act of 1964 and Civil Rights Act of 1991 (Title VII), which prohibits employment discrimination based on race, color, sex, religion and national origin; The ADEA, age discrimination act; and the ADA, which prohibits disability discrimination. Recently “sex” has been interpreted to include sexual preference and sexual orientation as well. In Pennsylvania, the PHRA mirrors the above federal protections in many ways.

What conduct constitutes harassment? Unlawful harassment based on the above laws is: a) offensive and unwelcome conduct; which is b) severe OR pervasive. In addition, retaliation for a person complaining, filing a Charge, reporting or participating in an investigation of harassment under the above laws, is prohibited. “Severe” can be one very serious incident, and “pervasive” can be a series of continuous less severe insults, threats, slurs, offensive statements and the like. No single factor will determine whether there is unlawful harassment or hostile work environment; however, the courts and the EEOC regulations have focused on whether the harassment “unreasonably interferes with the employees’ work performance.” Harassment itself is a harm punishable by the law without the need of economic damage such as from a demotion or firing.

When is an employer liable? The short answer is that an employer is most at risk for the acts of its supervisors. An employer is liable for the authorized acts of its supervising employees. This, however, provides an easy escape for employers who simply state that “harassment and discrimination are never authorized.” Accordingly, the Supreme Court in the 1998 cases of Farragher and Ellerth, stated that an employer is strictly liable for supervisor’s harassment if the harassment causes termination, failure to promote or hire or loss of wages-what is called a “tangible employment action.” For harassment, by non-supervisors, the employer is liable if it knew or should have known about the harassment and failed to take prompt and corrective remedial action. A defense for the employer is to show that the employee failed to take advantage of preventive or corrective opportunities provided by the employer.

What can employers do to prevent such claims? Employers can: 1. Prevent harassment by having appropriate and enforced policies and well trained and sensitive HR staff. Training and education of employees are critical. 2. Employers can conduct a proper and effective investigation of the allegations of harassment. The investigation must be thorough, non-retaliatory, prompt, effective and impartial.

To prevent illegal harassment there needs to be a clear understanding of what it is, how it is proven and the circumstances under which employers may be held liable. Whether an employer or employee, this area of the law is very complex and therefore consultation with experienced HR counsel at the earliest opportunity is critical.

 

For over 25 years Attorney Kounoupis has represented employees and sued most of the Fortune 500 corporations, insurance companies, as well as federal, state and county governments. If your top managers and executives have not yet secretly consulted with him, they probably will in the future.

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2019-getting-paid

Getting Paid When the Client Goes Bankrupt: It’s Possible

Whether you are a small business owner, an entrepreneur or a valued member of a team, no matter your profession or trade, getting paid for your work is the lynchpin of your endeavors. So, when that customer/client for whom you have worked tirelessly for weeks, months or even years does not let- on that he […]

Whether you are a small business owner, an entrepreneur or a valued member of a team, no matter your profession or trade, getting paid for your work is the lynchpin of your endeavors. So, when that customer/client for whom you have worked tirelessly for weeks, months or even years does not let- on that he or she is struggling financially, it can be a shock that your first indication of trouble is the notice of bankruptcy that you receive in the mail.

Rather than assume that your labor will bear no fruit, you should make an inquiry further into the particulars of the customer/client’s predicament to determine if you are able to get paid because you may be pleasantly surprised. Not everyone is eligible to file for protection from creditors under the United States Bankruptcy Code. Here are a few things you should look for if you have the unfortunate experience of being listed as a creditor in bankruptcy.

  1. The amount of the debtor’s debts: There are limits to the amount of debt that an individual can hold in order to be an eligible debtor. For instance, currently, individuals with unsecured debt in excess of $394,725.00, are generally precluded from filing bankruptcy. That is why you should examine the debtor’s entire bankruptcy petition. While you will receive only a one-page notice of bankruptcy, you should go to the United States Bankruptcy Court’s website to view the entire bankruptcy petition. If the debtor deb which exceeds the statutory limits, there are steps you can take to object to the petition.
  2. Whether the debtor filed bankruptcy previously: The availability of protection from creditors under the United States Bankruptcy Court is not unlimited. Once you receive notice that your customer/client has filed bankruptcy, you should check the records of the United States Bankruptcy Court to determine if the debtor has filed bankruptcy in the past which may render the person ineligible to be a debtor. While there are some exceptions, generally an individual can only obtain a discharge of debts once every eight years.
  3. Exemptions: The United States Bankruptcy Code provides the debtor with “a fresh start” by relieving the individual of his debts. In exchange for relief from his creditors, the debtor must surrender assets which Congress has deemed as unnecessary to “a fresh start.” Accordingly, there are limits on the kinds, and the amounts, of property which an individual can retain in a bankruptcy proceeding. For example, a debtor is permitted to obtain a limited amount of equity in a primary residence and a motor vehicle. Likewise, a debtor can retain some household goods. As a creditor in a bankruptcy proceeding, you should carefully scrutinize the petition to determine whether the debtor possesses non-exempt assets.
  4. Fraudulent Conduct: As noted above, the Congressional intent in the Bankruptcy Code is to provide “a fresh start” to an individual who has little, if any, prospect of satisfying his debts in the ordinary course of his affairs. To that end, the Bankruptcy Code mandates that the debtor file for relief from creditors in good faith. Where the individual has engaged in criminal, fraudulent, intentionally false and/or malicious conduct prior to filing bankruptcy, the individual may be denied a discharge of his debts. Assume that as a creditor you loaned money to the debtor in reliance upon the statements made, or documents produced, in a loan application which have turned out to be untrue, then you are in a position to object to the debtor obtain a discharge of the debt upon which the false information is based.
  5. Fraudulent Transfers: A person who transfers money or assets, or who makes purchases of certain goods, in the months leading up to the filing of bankruptcy may not be a good faith debtor. In these circumstances, with the assistance of the case trustee and the Bankruptcy Court, you may be able to recover the money or assets from the third-party transferee in order for a distribution to be made to creditors.

The preceding are just a few examples of protections which are built-into the United States Bankruptcy Code to protect creditors and which illustrates that upon your receipt of a notice that your customer/client has filed bankruptcy you still may get paid.

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CASPA the Friendly Law (For Contractors)

For more than twenty years the Contractor and Subcontractor Payment Act (CASPA) has been a law in Pennsylvania providing a tool for Contractors and Subcontractors to get paid. Conflict between Owners, Prime Contractors, Subcontractors, and subs of subs is a common occurrence in the realm of construction law. CASPA provides a powerful weapon for Contractors […]

For more than twenty years the Contractor and Subcontractor Payment Act (CASPA) has been a law in Pennsylvania providing a tool for Contractors and Subcontractors to get paid. Conflict between Owners, Prime Contractors, Subcontractors, and subs of subs is a common occurrence in the realm of construction law. CASPA provides a powerful weapon for Contractors and Subcontractors whose work is performed but who do not receive payment without a bona fide dispute. On the flip side, Owners of real estate who hire construction professionals need to be careful if there are disputes when it comes time to pay the bill.

Any time one person hires another and doesn’t pay, the unpaid party can bring a lawsuit seeking payment. CASPA has long provided unpaid Contractors with additional remedies above and beyond what is available to other claimants. It allows the unpaid party to seek not only the unpaid amounts but also a penalty equal to 1% per month of the amount unpaid, 1% interest per month, and attorney’s fees.

That is, taken together, CASPA adds a total of 24% per year to the principal amount owed to Contractors and Subcontractors. That is no small thing, and well in excess of the ordinary time value of money. Additionally, the ability of Contractors and Subcontractors to seek their attorney’s fees is a powerful remedy. Ordinarily, in the American legal system, each side pays their own attorney’s fees irrespective of who ultimately prevails in the litigation. Accounting for these costs usually provides defendants with leverage in negotiating how much they might ultimately pay. By providing this remedy, CASPA puts a thumb on the scales for unpaid Contractors in these negotiations.

That being said, CASPA also provides some protections for Owners to help prevent this leverage from being used unfairly. First, an Owner is permitted to withhold payment for a “deficiency item,” defined as

Construction work which has been performed but which the Owner, the Contractor, or the inspector will not certify as being completed according to the specifications of the construction contract. Where work is not yet completed or performed improperly, the Owner can withhold payment, provided that the Owner notifies the Contractor of the deficiency within fourteen days after receiving the invoice and pays for the completed portion of the work. CASPA also provides Contractors with similar protection as to claims made by their subs.

Although CASPA has been on the books since 1994, in 2018 it was expanded and strengthened. Pennsylvania Governor Tom Wolf signed a new law that overhauled CASPA and expands the remedies available to unpaid Contractors and Subcontractors. These changes became effective as of October 10, 2018.

One primary update is that CASPA’s protections expressly cannot be waived by contract. That is, even if an Owner has the leverage to insist that a Contractor waive its CASPA rights in a written contract, that provision would not be valid or enforceable. The Contractor could still pursue, for example, the interest, penalty, and attorney’s fees remedies for unpaid work.

An additional caveat in the updated CASPA is that a Contractor or Subcontractor is expressly authorized to stop performance until payment is received. An Owner is entitled to withhold payment if the work is deficient, but now the Owner is required to provide notice regarding the deficiency which allegedly justifies nonpayment within fourteen (14) calendar days of receipt of the disputed invoice. Owners will need to ensure that they observe this provision and provide prompt notice of deficient work along with an explanation of why they are withholding payment. An Owner who fails to provide written notice may waive their right to withhold payment for the deficient work.

The updated CASPA also deals with retainage. Retainage, sometimes called retention, is a common concept in the construction industry, where a portion of the contract price is consensually withheld until the work is substantially complete, to ensure that the Contractor or Subcontractor fulfills its obligations. Under CASPA, retainage is to be paid within thirty (30) days of final acceptance of work. If not, the unpaid Contractor can seek the same interest, penalty, and fees for non-payment mentioned above.

Where a Contractor or Subcontractor submits an invoice, which contains errors or some impropriety relating to the paperwork, CASPA imposes an affirmative duty to act on the Owner or Contractor receiving that invoice. They are required to give written notice within ten (10) working days of the error in the invoice. Once notice is received, the Owner or Contractor is still required to pay the invoice by the due date.

For public works projects, CASPA will not apply, and instead, the Pennsylvania Prompt Payment Act is applicable. CASPA also does not apply to residential construction, unless the project involves simultaneous construction of seven or more units.

As a result of these changes, Contractors, Subcontractors, Owners of real estate and real estate developers more generally will want to look over their contracts and evaluate how they deal with disputes over construction work. Everyone involved in the field will do well to pay careful attention to deadlines and act promptly to give notice of deficiency items.

As with any new law, there are important details in the amendments to CASPA for Owners, Contractors, Subcontractors, and subs of subs. If you are facing a legal challenge in a construction project, it is important to act promptly and document the situation to protect your legal interests. It is often better to consult legal counsel sooner rather than later in the process so that important rights are not lost. The lawyers at Fitzpatrick Lentz & Bubba, P.C. are always available and willing to help.

 

Joshua A. Gildea is a shareholder and attorney in the Fitzpatrick Lentz & Bubba’s Litigation Group. His practice includes commercial litigation, civil litigation, bankruptcy, complex commercial matters, landlord tenant and construction matters. He also practices in the area of intellectual property law. He can be reached at jgildea@flblaw.com or 610-797-9000.

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Trademarks: Identifiers of Source

A trademark is any distinctive symbol that is used to identify and distinguish a good or service of one seller or provider from the goods and services of others.  In short, trademarks are identifiers of source.  Although the primary legal justification for trademark rights is to protect consumers from source confusion, the recognition of trademark […]

A trademark is any distinctive symbol that is used to identify and distinguish a good or service of one seller or provider from the goods and services of others.  In short, trademarks are identifiers of source.  Although the primary legal justification for trademark rights is to protect consumers from source confusion, the recognition of trademark rights also serves the secondary economic benefit of permitting providers of goods and services to develop value in their brands.

Trademark rights and registration

In the United States, trademark rights are developed through appropriate use, even in the absence of a trademark registration issued by an individual state or the United States Patent and Trademark Office (“USPTO”).  These unregistered, “common law” rights are generally enforceable against “junior” third-party marks with which there is a likelihood of consumer confusion as to source, at a minimum within those geographic regions of the country in which the trademark owner has appropriately used the mark.

However, there are many benefits associated with obtaining a registration of a trademark from the USPTO, including but not limited to: nationwide rights and recognition of the mark; shifting of the burden of proof to a potential infringer on such issues as ownership, distinctiveness, and first use dates; having a record of the registration appear in the USPTO’s publicly-searchable database, making it more likely that a later-comer will discover the prior rights and refrain from adopting a mark that would be confusingly similar with the registered mark; and the right to use the registered trademark symbol ®, which often discourages others from adopting a too-similar mark.

Subject to some caveats, so long as a mark is used continuously, legal protection for that mark will not expire.  In fact, there are marks registered with the USPTO in the 19th Century that remain in force today.  Conversely, failure to properly use a mark for a period of time—typically three years—can lead to loss of rights in that mark and leave any trademark registration vulnerable to a cancellation proceeding.  A mark owner must also take reasonable steps to “police” confusingly-similar mark usage by a third party, or else the mark owner’s legal rights may be jeopardized.

Trademark searching and selection

Every consumer is aware of the ability of a word, logo, or slogan to serve as a source identifier, but trademark rights can also result—under appropriate circumstances—from distinctive and non-functional uses of sounds, colors, packaging, product configurations, and/or a good or service’s overall “look and feel.”  In theory, any perceptible symbol that is distinctive and non-functional with respect to an associated good or service can develop trademark rights as a source identifier if properly used.

Mark selection is a critical element of any brand development strategy.  To be registrable, a mark must first be distinctive, in that it is capable of distinguishing the good or service of one party from those of other parties.  Said another way, a mark is distinctive if the “likelihood of consumer confusion” question can be answered in the negative.  A registrable mark must also be devoid of any terms that might deceive consumers with respect to the geographic origin or other qualities of the associated good or service.  Last, but certainly not least, to be registrable a mark must not be “merely descriptive” or generic of the associated good or service or any characteristic thereof.  For example, the word “Apple” may not be able to function as a mark for apple juice or an apple orchard, but is capable of functioning as a strong mark for computers and smartphones.

Although there is no legal requirement to search the availability of a mark prior to its adoption in connection with a good or service, it is invariably sound business strategy to do so.  Trademark searches typically focus on two inquiries: (1) clearance, i.e., whether a mark can be adopted in connection with a particular good or service without subjecting a business to an accusation of infringement; and (2) registrability, i.e., the likelihood that a party will be able to obtain a registration for a mark in connection with a particular good or service, taking into consideration not only third-party trademark properties but also the distinctive nature of the selected mark.  A qualified professional may be necessary to help you confidently interpret the findings of any trademark search.

 


 

James J. Aquilina is an attorney and business counselor with extensive experience in all aspects of U.S. intellectual property law, including utility and design patent, trademark, and copyright law, with emphases on rights procurement, IP portfolio development and management, rights enforcement, and licensing.  He is a graduate of Rutgers University School of Engineering and the University of Pennsylvania Law School.  He can be reached by e-mail at jamesaquilina@designip.com.

The contents of this article are solely for educational purposes and do not constitute legal advice.  Any opinion provided in this article is solely that of the author and not that of his employer or any client thereof.

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effective-estate-planning

Effective Estate Planning: A New Era

Truth be told, effective estate planning for individuals is not all about the Will, and in current times, rarely has been. The variety of personal and business assets owned by individuals, advancements in medical science resulting in longer lives, the ease of global travel and ownership of multiple homes, and noteworthy changes in tax law, […]

Truth be told, effective estate planning for individuals is not all about the Will, and in current times, rarely has been.

The variety of personal and business assets owned by individuals, advancements in medical science resulting in longer lives, the ease of global travel and ownership of multiple homes, and noteworthy changes in tax law, require greater attention to detail and more careful planning by the attorney and the client in the estate planning process.

An attentive and experienced estate planning attorney will rely on financial and other information provided by you in drafting appropriate estate planning documents for the client.  At a minimum, these documents should include a Will, Financial Power of Attorney, Health Care Power of Attorney, and Advance Directive/Living Will.  They might also include one or more desired trusts or other strategic tax planning or wealth transfer documents.  Everyone who seeks an estate plan that carries out his or her wishes and minimizes tax should focus on the following considerations.

  1. Income Tax Planning is the new Estate Planning.  The Tax Cuts and Jobs Act (TCAJA) effective this year includes not only a historic increase of the Federal Estate and Gift Tax exemption to $11.18 million per person in 2018 but also notable changes to the income treatment of certain business and personal income and limitations on the availability of longstanding deductions.  These changes warrant careful consideration of current and projected income tax planning opportunities in the course of planning for one’s estate.
  2. Complete and accurate financial and other information provided by you is the basis for your Estate Planning Attorney’s advice and documents.  An experienced Estate Planning Attorney will typically ask you to complete a comprehensive financial and personal questionnaire prior to your meeting and will carefully review your completed document with you.  Your information is both critical to the tax and legal advice rendered and forms the basis for the advice and estate planning and other documents that follow.
  3. View your Estate Planning Attorney, Accountant, and Financial Advisor as a team.  Certain issues arising in the estate planning process warrant communication and analysis among your trusted advisors.
  4. Pay careful attention to the beneficiary designations you have in place for your Qualified Retirement Plans, IRAs, and Annuities.  A common misconception in estate planning is that qualified retirement plans, IRAs, and annuities are governed by one’s Will, rather than by one’s signed beneficiary designation form filed with the account custodian.  There is no substitute for your scrupulous recordkeeping and careful tax and legal analysis with your Attorney when planning for tax-qualified retirement plans and IRAs.
  5. Similarly, pay careful attention to understanding and updating the ownership and beneficiary designations of your Life Insurance policies.   Understand the tax and other consequences of such planning.  Careful planning can prevent unintended tax or other consequences. 
  6. Consider your current and future gifting objectives as to your family and charitable organizations when planning your estate.  Your estate planning attorney can provide strategic and tax recommendations as to the timing of certain gifts during your lifetime as opposed to after your death.  Careful planning in light of the TCAJA is critical.
  7. Plan for the proper treatment of Digital Assets in your Estate Plan.  A good estate plan should clearly address your wishes as to your intended beneficiaries of assets such as the files of the hard drive on your computer, photographs stored in the cloud or posted to social media sites, cryptocurrencies, popular digital storefronts such as eBay™ pages, and valuable web domains, for example.
  8.  Devote appropriate attention to your and your beneficiaries’ citizenship and residency status and planning for your out-of-state and international assets.  These assets might include interests in real estate or other non-liquid investments and bank accounts.  Review these with your attorney to understand not only the tax implications and residency issues that might accompany these assets, but also the planning and any tax saving opportunities available to you.
  9. Plan for and communicate your wishes as to your funeral or other disposition of your remains, and other special arrangements that might include religious or other specific services, memorials, or celebrations.  Your estate planning attorney will advise you as to applicable law in this area and how to ensure that your wishes will be honored.
  10. Understand the best practices of recordkeeping for you, your family, and your business.  An adept estate planning attorney will guide you and your family with practical and useful information to maintain that information necessary to support your estate and tax planning objectives.

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An Ounce of Prevention: A Plaintiff Employment Lawyer’s Sincere Advice to HR

For over 25 years Attorney Kounoupis has represented employees and sued most of the Fortune 500 corporations, insurance companies, as well as federal, state and county governments. If your top managers and executives have not yet secretly consulted with him, they probably will in the future. Human resources issues are highly prevalent in the business […]

For over 25 years Attorney Kounoupis has represented employees and sued most of the Fortune 500 corporations, insurance companies, as well as federal, state and county governments. If your top managers and executives have not yet secretly consulted with him, they probably will in the future.

Human resources issues are highly prevalent in the business environment, and thus there is a steady barrage of HR seminars and conferences. Knowledge of the laws and regulations is easier than ever with such consultants and online resources. However longer, wisdom in the area of HR is harder to acquire.

In this vein, therefore, allow me some general observations gained from a valuable perspective: that of a 30-year plaintiff employment lawyer-for practical purposes the “adversary” (although we should all be interested solely in obtaining fairness and justice in the workplace).

We can begin with the question of who comes to see me? Employees, of all ranks, come to see me, “chiefs, cooks, and bottle washers” and in all protected categories: age, gender, race, ethnicity, religion, disability, sexual preference, whistleblowers, etc.… As varied as they may be, they all mainly have one unifying characteristic: They feel disrespected. You can spot the employee who will cause “a problem” by seeing who feels profoundly disrespected.

When do employees come to see me? It is useful to note that they often come when they are threatened, disciplined, fearful, angry- long before they are fired. Accordingly, in such cases, HR managers should be mindful that there is a high chance of a retaliation or hostile work environment case being filed since behind the employee’s interactions there is the watchful eye of counsel and counsel’s guidance.

he best advice in my experience is holistic. It comes from understanding that for most employees a job is not just a paycheck but also a source of dignity and self-esteem. They must be able to go home and look their family in the eye. Most long-time, employees feel they have provided loyalty and claim a deep sense of betrayal when disrespected, treated unfairly or bullied. (“I missed my kids’ birthdays for this!”). In my view, the best and most effective HR manager does not focus only on what is legal but humanizes the workplace. This type of HR professional is very valuable and a formidable opponent to the Plaintiffs lawyer in litigation and in front of the jury. Such an HR professional has avoided the pitfalls of threats, bullying, and abuse of power and has acted with sensitivity and respect for the human element. Rather than using organizational power to beat down and intimidate employees, there is a use of such power sparingly to raise consciousness and bring out the better natures of employees.

A sensitivity to the human element also picks up problems early. In most cases, potential victims signal their dissatisfaction early, and harassment will frequently test their boundaries before committing a violative act.

On a more practical level, of course, HR managers cannot get by solely by humanizing the workplace- they must also know the law. They must know how to communicate their knowledge of the workplace law as it applies to real life situations. They must know how to conduct a timely and reasonable investigation. For example, some concepts, such as when is “offensive to a reasonable woman” can most effectively be taught by skits and real-life vignettes and examples of such situations.

In terms of HR, most commonly observed pitfalls I would mention: lying, covering up, bullying, exaggerating discipline and not understanding what retaliation is, improperly applied “PIP’s.” Common legal errors and misconceptions include: not realizing how to jointly apply ADA/FMLA; not understanding ADA’s interactive process or “regarded as” ADA violations; not understanding gender discrimination vs. sexual harassment; thinking severe and persuasive for hostile work environment rather than or; not understanding the “reasonable woman” standard; not understanding the scope of circumstantial evidence of causation in such cases; not understanding stereotype evidence; not understanding how sexual preference cases can be brought- and other numerous areas of confusion.

Ultimately, if things degenerate to the worst conclusion potentially for all, what resonates with juries are three themes in employment cases: respect, responsibility, and use or abuse of power. In conclusion, human beings do not evolve at the same rate as technology, and so there will be continuing conflicts in the workplace caused by emotions and human weaknesses, ego, desires, prejudices, and lusts. Complex HR issues and conflicts will persist in the workplace where adults spend a great part of their life, and as a result, great care sensitivity and training is required.

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Why You Need a Will

We tend to place seemingly non-urgent tasks on the backburner. Most of us have a lengthy list of undesirable tasks that “collect dust” in the back of our minds. We promise we will organize the garage next month and convince ourselves we will start our diets as soon as the New Year commences. In reality, […]

We tend to place seemingly non-urgent tasks on the backburner. Most of us have a lengthy list of undesirable tasks that “collect dust” in the back of our minds. We promise we will organize the garage next month and convince ourselves we will start our diets as soon as the New Year commences. In reality, it often takes us years to complete these less-imperative tasks. We are guilty of reserving them for that ever-ambiguous “not today” when we consider them daunting or unappealing.

According to a 2014 study, almost 64% of Americans don’t have a will. Perhaps this unwillingness to create a plan for our deaths is threefold: thinking about death is unpleasant, we naturally ignore our mortality while going about our day-to-day business, and many of us hold a misconstrued belief that wills are only necessary for the wealthy. However, regardless of our financial or marital status, we all deserve the confidence of knowing all our wishes will be honored once we pass. The only way to ensure this is by preparing a will. Consider the following as you contemplate yours:

  1. Determine who will raise your minor children
    Nobody knows your children better than you; therefore, appointing a loved and trusted individual to care for them is imperative. The only way to appoint a guardian for them if you and your spouse pass is to name them in a will. Without one, a judge who has never met you or your children will decide who will raise them. I know from over thirty years of experience that deciding on a guardian is very difficult and may cause conflict between spouses, but a knowledgeable attorney should be able to help you make this complicated decision.
  1. Decide how your property will be distributed
    Having a will enables you to ensure that your property will be distributed according to your wishes. If you pass away without a will that that specifies how you’d like your property distributed, a judge will decide who receives it; this determination may not only go against your wishes but will cause disputes among your family members. In order to ensure your property ends up with whom you want when you die, it is essential to name your beneficiaries in a will.
  1. Protect your spouse
    Many people believe that if you die, your surviving spouse will gain ownership of all your property; however, this is false. Your spouse will only inherit half of your estate while your children inherit the other half. This will certainly be even more of a burden if your children are minors and your spouse will have to be named trustee by a court. This could amount to a lot of extra stress and cost to your spouse.
  1. Appoint an executor
    An executor handles your remaining financial responsibilities after you pass away. Not having an individual designated to this position in writing means a judge will name someone instead after you die.
  1. Facilitate the grieving process for your loved ones
    Losing a loved one is heartbreaking and financially burdensome. Years-long arguments between family members and lawyers about who will receive your assets can provoke a stressful, costly situation that exacerbates the grieving process and strains relationships. Providing your family with objective, clear-cut instructions on how you’d like your possessions allocated when you pass will lessen confusion as well as prevent intervention from the courts and permanent damage to your family.

Take the first step in eliminating “write a will” from your to-do list by calling your lawyer today.

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What Might Be Lurking In Your Real Estate Title? – The Importance of Title Insurance

If you have purchased real estate in Pennsylvania, chances are you purchased a title insurance policy.  But what is title insurance and what does it insure? A title insurance policy insures that land acquired (or mortgaged) is free of all defects, liens, and encumbrances.  While ownership itself may seem very straightforward, a buyer’s rights to […]

If you have purchased real estate in Pennsylvania, chances are you purchased a title insurance policy.  But what is title insurance and what does it insure?

A title insurance policy insures that land acquired (or mortgaged) is free of all defects, liens, and encumbrances.  While ownership itself may seem very straightforward, a buyer’s rights to enjoy the real estate purchased isn’t always clear.  There are many ways in which the ownership (title) of real estate can be in jeopardy.  Title insurance helps to reduce the possibility that title issues will arise by examining the status of title and proactively addressing potential issues, with the policy issued protecting against a loss if a buyer’s ownership rights are challenged.

Title insurance is substantially different than other types of insurance coverage.  Most other forms of insurance cover unforeseen future events, such as an accident, by pooling the risk of unanticipated losses.  Title insurance protects a property owner from events that may have occurred in the past, emphasizing risk prevention rather than risk assumption.  To prevent risk, a title search is performed and evaluated to identify possible risks in the chain of title.  Prior to issuance of the title insurance policy, risks are resolved to reduce or eliminate future risk, often unbeknownst to the property owner.

There are two forms of title insurance policies – owner’s policies and lender’s policies.  An owner’s policy protects the owner’s interest in the property while the lender’s policy protects the lender’s security interest in the real estate.  The most common owner’s policy insures ownership in the land, though other interests in land, such as leases, easements, and life estates can also be insured.

The owner’s policy is typically issued in the amount of the purchase price.  The policy is effective as long as the owner retains its interest in the land.  Although a title search is completed and examined in great detail, a hidden risk may still materialize after closing, causing the property owner great expense to defend its title to the property.  Title insurance provides protection against the hidden risks.  Examples of such hidden risks are:

  • A deed completed with a forged signature, which would mean the “transfer” evidenced by the deed never occurred;
  • Unknown heir[s] of a previous owner who claims ownership of the property;
  • Documents signed under an expired or a fabricated power of attorney;
  • Defective acknowledgments due to improper or expired notarization;
  • Corporate franchise taxes and liens on corporate real estate assets; and
  • Gaps in the chain of title.

In addition to identifying and resolving these potential title issues before the purchase is completed, an owner’s policy will pay valid claims and all defense costs against attacks on the title.

The buyer selects the title insurance company and typically pays the premium, though the party responsible for paying is negotiable.  Title insurance is regulated by the Pennsylvania Insurance Commission which sets the rates for title insurance.  Therefore, the premium for identical levels of coverage will the same regardless of the title insurance company selected.

A lender’s policy is issued to ensure the security interest held by a lender in real estate, securing the payment of a debt.  The loan policy assures the lender of the validity, priority, and enforceability of its lien (mortgage). A loan policy is issued in the amount of the loan.  Lenders commonly require that the borrower/owner obtain a policy benefitting the lender to insure its interest in the collateral.  (A lender’s title insurance policy does not protect the owner’s interest, though the owner’s policy can be issued for the same level of coverage without any additional cost to the owner.)

With this primer, you now have a better understanding of the title insurance policy that protects one of your most important assets.

 

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