Legal

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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The 21st Century Litigator: You’re Only as Good as Your Technology

I often joke to younger attorneys that when I was a brand-new associate way back in 1989, it was a big deal to receive a fax – at that time, a piece of shiny paper cut from a roll in uneven sheets, and only used for emergencies. We still did most of our research in […]

I often joke to younger attorneys that when I was a brand-new associate way back in 1989, it was a big deal to receive a fax – at that time, a piece of shiny paper cut from a roll in uneven sheets, and only used for emergencies. We still did most of our research in a paper library using West Digests and actual books, and because Westlaw and Lexis were so expensive, we only used them if we had no other options.

By the time I left the practice of law to raise my kids five years later, I had managed to wangle a PC that the Word Processing Department (we actually had a Word Processing Department!) had deemed too slow and out-of-date; eight years later, when I returned to the practice of law, email was sort of a thing, and desktop legal research was common.

Nowadays, most of us use email for much of our correspondence; e-filing is now either optional or mandatory in many courts; large firms have implemented document management systems that put your entire case file at your digital fingertips; paralegals spend much of their time online compiling medical records and investigating cases; and most administrative tasks (scheduling, matter diary or “tickler” systems, and time entry, for example) are done via computer – or on a smartphone. The bottom line? Nowadays, there is no room in the law for Luddites – in fact, those who refuse to embrace technology may risk ethical sanctions and malpractice claims.

Technology is everywhere, and we rely upon our digital systems for everything from e-filing to medical records retrieval to trial presentations. Consider these innovations that may make the litigation lawyer’s job easier:

 

In the Office

  • Document management systems theoretically make it possible to go paperless by integrating digital communications and filings, internally-created documents, and “snail mail” documents into a database that can be accessed electronically from anywhere there is wifi access.
  • Document database products for e-discovery/document analysis and production make it possible to search huge volumes of documents using Boolean or keyword searches, thus identifying and coding documents quickly for production or internal use.
  • Document manipulation/editing solutions such as Nuance make document productions fast and easy by converting pleadings, photographs, medical records, or other documents into a PDF document that can be redacted, Bates-stamped, and marked with comments.

 

At Deposition

  • Real-time streaming services allow you to read testimony as it is being spoken and recorded by the court reporter.
  • Online deposition and exhibit databases provide paperless transcripts and exhibits any time, day or night, through the court reporting service portal – great for when the paper copy gets lost, or you’re working remotely and do not have access to a document management system.
  • Native evidence transfer lets you record a witness’s manipulation or annotation of a document.

 

In the Courtroom

  • Depending upon the courtroom, and your comfort level, all you need to try a case these days is an iPad and a video screen. There are a variety of trial presentation software programs that permit you to download documents and call them up via barcode scanner, keyword search, or Bates number.
  • For those who don’t want to be tied to their computer, there is a whole industry of trial technology vendors who will do the same thing (and organize your documents in binders, if you like), but at considerable expense, of course.

 

Smartphone Technology

  • Time entry apps let you enter your time wherever you are, eliminating the need to keep a written log you might lose or forget your time altogether.
  • Expense report apps allow you to submit invoices and receipts at the touch of a button for quick and easy reimbursement.
  • On-the-go legal research (Lexis and Westlaw) are both available for iPhone and Android.
  • Dropbox – if it’s saved to your computer, you can access it from your smartphone.
  • Apps such as CamScanner turn your iPhone or Android into a scanner – helpful when there’s only one copy of a document and no photocopier available.
  • There’s even a Black’s Law Dictionary app!

 

On the Horizon

It’s been suggested that in the future, jury trials may be done virtually with some or all jurors, attorneys, and witnesses participating digitally. For non-litigators, it may soon become possible to utilize artificial intelligence (AI) assistance in contract and corporate document review. AI products, such as Premonition and ROSS, analyze legal authority as applied to a particular set of facts to predict outcomes. Also, in development are software programs that skim and interpret large quantities of documents in order to pinpoint which are relevant and critical to a particular case.

However, you use technology in your practice, of course, make sure you have a good IT department – if the wifi is down, the server on the fritz, or the bandwidth at a snail’s pace, you need good people to back you up.  Learn how to make technology work for you!

 

Wendy R.S. O’Connor is a shareholder in the Allentown office of Marshall Dennehey Warner Coleman & Goggin where she represents clients in a wide variety of casualty and healthcare-related matters. She may be reached at wroconnor@mdwcg.com.

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Morality Clauses & Divorce: What You Need to Know

When couples divorce, often the most difficult part is how the children are affected by the process and the behavior of the divorcing parents.  No one wants someone else raising their children.  However, that can be a very harsh reality to face for divorced people with minor children. Previously in the most recent edition of […]

When couples divorce, often the most difficult part is how the children are affected by the process and the behavior of the divorcing parents.  No one wants someone else raising their children.  However, that can be a very harsh reality to face for divorced people with minor children.

Previously in the most recent edition of Network, we looked at employment contracts for executives and high visibility employees or representatives, and how a company can manage the risk of illegal or otherwise improper behavior of those key persons.  With some foresight and smart contractual drafting, the company can protect itself from bad behavior through morality clauses.

Surprisingly, this very same issue – guarding against the poor judgment of others – appears in many, many divorce cases, particularly when there are minor children and custody issues involved. These issues can have a profound impact on many people, regardless of social status, wealth, religion or any other demographic category.

Even the most amicable divorce matter can be psychologically and emotionally challenging at times.  More often than not, those challenges can become extreme when mixed with the financial pressures that divorcing couples also face.  Add to that the difficulty of navigating custody issues, and the parties’ differing perceptions of what is in the child’s best interest, and you have a powder keg waiting for ignition.  Eventually, more often than not, this issue explodes into conflict.

When negotiating a custody agreement, invariably the parties have to confront a very real issue that all divorced people with minor children hate thinking about.  At what point can your ex-spouse introduce the children to a new person the ex-spouse is dating?  At what point can that new person stay overnight in the same house as the children?

While those two issues are related, they are totally separate issues to think about for your Marital Settlement Agreement.  The introduction and the first overnight stay (one would hope) are separate events.  What recourse do you have if the ex-spouse is doing something you think is risky or ill-advised?  What if your ex-spouse takes up with the very next person that comes along without knowing much about them?  It happens far more often than one would think.

The answer is that you do have an opportunity to try and mitigate this risk when negotiating the terms of the Marital Settlement Agreement that will control the conduct of both parties going forward.  This is the only point in the divorce process where you will have an opportunity to address this.  Once the Marital Settlement Agreement is signed, this door closes.

The mechanism you use is called a morality clause (sometimes more elegantly called a paramour clause).  This is a flexible term, and you can use this mechanism to address when the first co-habitation with the children in the house would occur.

What a morality clause does in this context is to prohibit overnight romantic guests of your ex-spouse while your ex-spouse has physical custody of the children. You don’t have to care what the ex-spouse does in their free time, but you should care what the ex-spouse does when the children are present.

For example, the following is typical of language you would use in an agreement regarding overnight stays: “no party shall have overnight guests of the opposite sex to whom they are not married or related by blood or marriage while the minor children are in the home during periods of physical custody and/or parenting time.”  As a drafting point, it should be noted that the preceding provision assumes a heterosexual couple, but the language can easily be modified when same-sex parents are involved.

Often, the terms and conditions of the Marital Settlement Agreement can be incorporated into a court order in the divorce litigation.  That significantly changes the means of enforcement. Once the terms of a Marital Settlement Agreement are incorporated into a court order, any breach of that Agreement potentially exposes the party to contempt proceedings.  It is an extreme position, but it is one that litigants in a divorce matter are willing to invoke at the drop of a hat.

 

Bryan Tuk is an attorney, author, and musician. His recent book: risk, create, change: a survival guide for startups and creators, is available on Amazon. You can find out more about Bryans writings at http://riskcreatechange.com

 

Tuk Law Offices represents clients throughout Pennsylvania and New Jersey, focused on startups, entrepreneurs, arts & entertainment law matters, copyrights, trademarks and nonprofit organizations. You can learn about Bryans law practice at http://tuklaw.com.

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Mandatory Flu Shots In The Workplace: What Can An Employer Legally Require

Case study:  George Costanza’s employer implements a new policy which requires all employees to obtain an influenza vaccine prior to the upcoming flu season.  The policy permits employees to be excluded from the required vaccination if they can establish a medical or religious basis for the request.  Costanza informs his employer that he cannot get […]

Case study:  George Costanza’s employer implements a new policy which requires all employees to obtain an influenza vaccine prior to the upcoming flu season.  The policy permits employees to be excluded from the required vaccination if they can establish a medical or religious basis for the request.  Costanza informs his employer that he cannot get the vaccination due to his religious beliefs.  Specifically, Costanza’s religion of Festivus not only includes a metal pole, the airing of grievances, and feats of strength but also prohibits the use of vaccinations.  Costanza’s employer does not believe that this is a real religion and terminates his employment.  Costanza’s attorney subsequently files a lawsuit claiming religious discrimination in violation of state and federal laws.  Did the employer do anything wrong in this instance?

Analysis:  As an initial matter, under Title VII, the federal law which prohibits discrimination on the basis of religion, employers are required to provide reasonable accommodations for an employee’s sincerely-held religious beliefs.  Title VII does not contain a list of acceptable religions and includes more than just the traditional recognized and organized religions.  As such, in order to be protected under Title VII, an employee must merely show that he or she holds a sincere religious belief, which was the basis for the adverse employment action.

The Third Circuit has recently addressed what constitutes a sincerely-held religious belief in accordance with Title VII.  In Fallon v. Mercy Catholic Medical Center, the plaintiff, Fallon, claimed that his employer terminated him after he refused to get the required flu vaccine.  Fallon did not belong to any organized religious organization but held a strong personal and medical belief opposing the flu vaccine because he believed it might harm his body.  After Fallon informed his employer of his belief, the employer requested a letter from a clergy member to support his request.  Fallon could not provide such a letter to support his request.  As such, his employment was terminated.

Fallon sued his employer and claimed it had discriminated against him on the basis of his religion.  Fallon’s complaint was initially dismissed by the federal District Court in Pennsylvania because Fallon’s beliefs were not based upon any sincerely-held religious belief and, as such, not protected by Title VII.

The dismissal of Fallon’s claim was upheld by the Third Circuit Appellate Court, which conducted a specific analysis into whether Fallon’s beliefs with regard to the flu vaccine were in any way based upon religion.  The Court found that Fallon’s beliefs were not religious in nature due to the fact that they did not “address fundamental and ultimate questions having to do with deep and imponderable matters.”  Conversely, Fallon was concerned about the health effects of the flu vaccine.   Fallon merely did not believe that it was harmless to most people and desired to avoid taking the vaccine.  As such, the Court determined that Fallon’s request was not religious in nature, and therefore, not protected by law.

Turning back to Costanza, his employer should be concerned about the claim.  Contrary to the plaintiff in Fallon, Costanza has clearly articulated a religious belief to his employer, not one of a personal nature.  Under both state and federal law, once an employee articulates a sincerely held religious belief, an employer is required to provide a reasonable accommodation unless the employer can establish an undue hardship.  In this instance, it would be difficult to establish an undue burden considering the employer had carved exceptions into the policy itself.

Employers should also be mindful of how much they question an employee’s sincerely-held religious beliefs.  In this regard, the Court in Fallon specifically stated that asking for a “letter from the clergy” may be a violation of the law.  If an employee articulates a sincerely-held religious belief and can state the reasons for such a belief and the reasons for the accommodation request, the employer’s follow-up inquiry should be limited to determine if the accommodation can be provided.  Employers should not, generally, force employees to document their religious beliefs in order to obtain an accommodation.  As with Costanza, not all religions are organized or established and need not be so in order to be afforded protections under the law.

Employers who have union employees and are subject to collective bargaining agreements have additional concerns.  The National Labor Relations Board, which interprets and enforces the National Labor Relations Act, has stated that flu policies are subjects of mandatory bargaining.  As such, unless a “Management Rights” provision in the collective bargaining agreement permits an employer to unilaterally implement such a policy, the employer is required to sit at a table with the union and agree, generally, to the terms to be included in the policy.

Employers must be mindful of their legal requirements generally if an employee requests a religious accommodation and specifically if it is done in response to a mandatory influenza vaccine policy.  While the Fallon employer was lucky in that the employee’s belief was not “religious” in nature, that is not always the case and is rare for a court to find in such a manner.  Employers should not generally question an employee’s beliefs, but instead, determine if they can accommodate the request.  Additionally, employers should ensure that all policies, including an influenza vaccination policy, are handled in a consistent and uniform manner.  Doing so will hopefully avoid being subject to a lawsuit or being on the receiving side of the airing of grievances at Festivus.

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A Stain on American Jurisprudence – Korematsu v. United States

Years later, almost everyone would agree that the Executive Order was wrong: racially motivated, falsely justified as essential to national security, and supported by a mix of lies and misrepresentations. The legislation that followed permitted racial discrimination by the government. The deprivation of the Constitutional rights of American citizens because of their race, ethnicity, and […]

Years later, almost everyone would agree that the Executive Order was wrong: racially motivated, falsely justified as essential to national security, and supported by a mix of lies and misrepresentations. The legislation that followed permitted racial discrimination by the government. The deprivation of the Constitutional rights of American citizens because of their race, ethnicity, and religion was sanctioned by all three branches of the federal government. A majority of the United States Supreme Court approved the systematic racial discrimination against a minority group whose ethnicity made them enemies in the eyes of some. A vocal segment of the media, supporting the Executive Order, agitated the population with stories and opinion pieces designed to divide the nation and demonize the minority groups.

Facts were hidden from the public.  Outright lies were presented in court to rationalize the programs. The President justified his actions as a matter of military urgency. He ignored his own intelligence community and suppressed their findings that no threat to national security excused his actions.

Contemporaneous opponents of the Executive Order and legislation were few. Many years later they would be vindicated by political leaders on all sides. However, when they pointed out that the policies fell “into the ugly abyss of racism,” they were ignored. They were the dissenting minority when they pointed out that “racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.”

What followed was the implementation of a policy to demean, degrade, demonize, and disenfranchise a vulnerable minority population, including tens of thousands of American citizens. The policy was not based on evidence of misconduct, but solely upon an individual’s ethnicity.  Years later, almost everyone would agree that it was wrong. It took many years, but the agreement was nearly unanimous and overwhelmingly bipartisan.

Forty years later, a Congressional report would call the Supreme Court decision upholding the Executive Order a “Stain on American Jurisprudence.” The bipartisan legislation would attribute the policies to “race prejudice, war hysteria, and a failure of political leadership.” Forty-six years later a new law would be signed by a Republican President authorizing the payment of reparations to those who suffered under the policies. A formal apology followed from the next Republican President two years later.

Sixty-seven years after the fact, the Solicitor General of the United States would publicly correct the lies used to support the policies. He would acknowledge that his predecessor in office withheld a report by the relevant intelligence agencies that found no military threat existed and no national security interests were served by the Executive Order. Finally, some seventy-four years after the Supreme Court affirmed the discrimination, the sitting Chief Justice of the United States Supreme Court admitted that the earlier decision was “gravely wrong” and its holding “has no place in law under the Constitution.”

An American citizen convicted under the laws enacting the Executive Order finally had his conviction overturned forty years after the Supreme Court had upheld it. The difference was that forty years later, the misconduct of the government had come to light and the arguments about military necessity and national security were proven to be lies. Long hidden documents demonstrating the racist motivations behind Executive Order Number 9066 were revealed.  It took many political leaders decades to acknowledge the enormity of the wrongness of the racist policies and to speak out against them.

Fred Korematsu, an American citizen, was convicted in 1942 of violating the Executive Order and the laws enacting it which called for the exclusion and internment of Japanese-Americans. His conviction was upheld by the United States Supreme Court in a 1944 decision that many see as historically shameful as the Dred Scott decision and Plessy v. Ferguson.

Years later, almost everyone would agree that the Executive Order, the legislation, and the Supreme Court decision represent a stain on American jurisprudence. When President Gerald Ford officially terminated the Executive Order in 1976, he said, “We know now what we should have known then; it was wrong.”

A Congressional report led to legislation in 1988 signed into law by Ronald Reagan granting reparations. Two years later, George H.W. Bush issued a formal apology and the first of the reparation payments. In 2011, the United States Solicitor General acknowledged that his predecessor in 1944 had withheld a report by the Office of Naval Intelligence that concluded Japanese-Americans did not pose a military threat and there was no evidence they were disloyal to the United States.

What everyone now knows to be wrong was, at the time, attributable to “race prejudice, war hysteria, and a failure of political leadership.” The United States suffers still from these shortcomings. We should not have to re-learn shameful lessons from our past.  We should not wait decades to confront and correct obvious acts of injustice.

Fred Korematsu made the point clear late in his life. “No one should ever be locked away simply because they share the same race, ethnicity, or religion as a spy or terrorist. If that principle was not learned from the internment of Japanese-Americans, then these are very dangerous times for our democracy.”

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What Employers Need to Know About Pennsylvania’s Medical Marijuana Law

In April 2016, Pennsylvania legalized medical marijuana, becoming the twenty-fourth state to do so. Although it has taken nearly two years for the Commonwealth’s regulatory system to be designed and implemented, medical marijuana is now readily available at a number of licensed dispensaries throughout the state. With tens of thousands of Pennsylvanians registered to become […]

In April 2016, Pennsylvania legalized medical marijuana, becoming the twenty-fourth state to do so. Although it has taken nearly two years for the Commonwealth’s regulatory system to be designed and implemented, medical marijuana is now readily available at a number of licensed dispensaries throughout the state. With tens of thousands of Pennsylvanians registered to become certified to use medical marijuana and more dispensaries set to open in the coming months, employers must be prepared to address new issues regarding medical marijuana in the workplace. This article will answer some of the most common questions that employers have asked in trying to navigate the haze of Pennsylvania’s Medical Marijuana Act (the “Act”).

  1. What Conditions Qualify an Employee for Medical Marijuana?

Under the Act, “medical marijuana” refers to marijuana obtained for certified medical use by a Pennsylvania resident with a “serious medical condition.” The Act provides an extensive list of qualifying “serious medical conditions,” including: ALS/Lou Gehrig’s disease, autism, cancer, Crohn’s disease, epilepsy, glaucoma, HIV/AIDS, Huntington’s disease, multiple sclerosis, Parkinson’s disease, post-traumatic stress disorder, sickle cell anemia, opioid abuse, or any terminal illness, neurodegenerative disease, or spinal cord damage.

  1. What Forms Can Medical Marijuana Take?

The Act limits “medical marijuana to the following forms: pills, oils, topical forms (e.g., gels, creams, or ointments), tinctures, liquids, or other forms appropriate for administration by vaporization or nebulization. Although dry leaves or whole plants are allowed for vaporization or nebulization, they cannot be smoked or used in edible form under the Act.

 

 

 

  1. Can Employees Use Medical Marijuana at Work?

No. The Act makes clear that employers are not required to accommodate the use of medical marijuana at work. The Act also allows an employer to discipline an employee for using medical marijuana at work or for working while under the influence of medical marijuana when his/her conduct falls below the standard of care normally accepted for that position. In addition, the Act provides that employers can prohibit employees from performing certain safety-sensitive tasks while under the influence of marijuana, such as operating or controlling certain chemicals or high-voltage electricity.

  1. What About the Americans With Disabilities Act?

Under the Americans with Disabilities Act (“ADA”), “qualified individuals with a disability” are generally entitled to reasonable accommodation in the workplace. However, a person who is currently engaging in the illegal use of drugs is not a “qualified individual with a disability” for ADA purposes. Although medical marijuana has been legalized in Pennsylvania (and a majority of states) and the possession of small amounts of marijuana has been decriminalized in several Pennsylvania municipalities, all forms of marijuana remain illegal under the federal Controlled Substance Act. Accordingly, Pennsylvania employers are not required to accommodate an employee’s use of medical marijuana under the ADA.

  1. What Employment Protections Does the Act Provide?

The Act prohibits employers from discharging, threatening, refusing to hire, discriminating against, or retaliating against an employee “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” As this provision has not yet been fully litigated in Pennsylvania’s state or federal courts, it remains to be seen just how much workplace protection the Act affords to Pennsylvania employees in practice.

  1. What Should We Do Next?

There are several key measures that an employer can take to ensure that its workplace remains both drug-free and legally compliant. As an initial matter, an employer should review, revise, and disseminate its policies and handbook to ensure that employees are clearly notified that testing positive for an illegal drug, including medical marijuana, is a policy violation that allows the employer to take adverse action to the fullest extent permitted by law. An employer should also discuss with its vendors about how positive marijuana tests will be addressed and reported. Most importantly, an employer must enforce its policies consistently among all employees and ensure that all adverse employment actions are supported by timely and thorough documentation. With the right knowledge and preparation, Pennsylvania employers can ensure that their efforts to comply with state and federal law don’t go up in smoke!

By: John Buckley, Esquire, Norris McLaughlin & Marcus, P.A.

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What A Business Owner Should Expect From A Business Attorney

“Don’t just advise me.  Fix what needs fixing!” “Don’t just treat me as another client.  Invest yourself in my business as if it were your own!” These statements are likely to be heard from a business owner who recognizes the need of sound legal assistance, whether it be an owner of a fairly new business […]

“Don’t just advise me.  Fix what needs fixing!” “Don’t just treat me as another client.  Invest yourself in my business as if it were your own!”

These statements are likely to be heard from a business owner who recognizes the need of sound legal assistance, whether it be an owner of a fairly new business or a well-established company looking to grow.

A seasoned business law firm with attorneys and a business specialist on staff who possess first-hand knowledge of what it takes to start, build and run businesses, having experienced and learned from the failures that come from building successful enterprises, can bring that “something extra” to the table for business clients.

A business owner may simply need restructuring of the operations to maximize profits, or he/she may have inherited a company that has an antiquated culture resistant to change.  Even if the owner is aware of the issues, it is a challenge to make the changes needed to further the company while dealing with putting out the proverbial fires that occur daily.

What would a law firm with the credentials described above (“the Law Firm”) do to solve a business owner’s problem?

  • First, the Law Firm’s business specialist would thoroughly evaluate the structure of the organization, its cash flow status, personnel, operations, financial controls and tools, marketing, customer relations, vendor (IT) services, its advisors, and in-place employer-employee policies/agreements.

 

  • The business specialist would share such findings with the business attorneys on staff to develop a plan designed to address the specific needs of the business.  Depending on the size and age of the business, the plan could include a lifespan of anywhere from three to twelve months.

 

  • The proposed plan would then be presented to the business owner for a thorough review, as well as follow-up sessions to allow time for the owner to fully digest the recommendations and allow for modifications of the plan.  Upon approval of the plan, a Letter of Engagement would be formed to stipulate the services to be provided over the course of the plan.  The parties would agree to an initial retainer gauged for the work to be done in phases, with the understanding that the retainer would be replenished on an as needed and mutually agreed upon basis.

 

  • The business specialist of the Law Firm would then become a prominent advisor taking the lead on restructuring the business as well as ensuring the business owner has a strong grasp on the business by teaching him/her how to “know their numbers.”  This will allow the owner the ability to deploy new capital/structured debt to grow their business.

 

  • In a phased manner, the business attorneys of the Law Firm would address the relevant legal matters, serving as the quarterback to the client’s other advisors to integrate the services of all the company advisors into the plan’s implementation in a collaborative and cost-efficient manner.

 

  • Like any plan, changes will be required in both timing and substance due to the “reality on the ground.” Particular focus will be on the client’s cash flow and the reactions of the client and personnel to the significant changes in the company’s business culture that will be required to successfully implement the business plan.

 

The process described can be tailored to a myriad of business situations and challenges. It takes foresight and courage for any owner of a privately held business that needs the kind of help described in this article to agree to the expenditure required to underwrite this approach.  However, with the assistance of the Law Firm with the credentials described, such as Rust Law LLC, the business owner will realize that the cost of this service pales in comparison to the costs incurred prior to the plan’s implementation.  Moreover, he/she will know that the reorganized enterprise has staying power, capable of besting its competition for the foreseeable future.

Alicia E. Emili, Esq. – Mark Reese, Business Specialist – Robert N. Rust III, Esq.
RUST LAW LLC

If you are interested in discussing the contents of this article further, you are welcome to contact any of the co-authors at the offices of Rust Law, LLC at (610 821 0484).

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It’s a Trademark Because I Say It’s a Trademark

How do clients – current or prospective – separate messaging about your business’s products or services from those of your competitors?  Every marketing department, company executive, and entrepreneur knows that the answer is branding.  And so, the value of investment in brand marketing is abundantly clear.  But, what if you’re not Coca-Cola® or Nerf®?  What […]

How do clients – current or prospective – separate messaging about your business’s products or services from those of your competitors?  Every marketing department, company executive, and entrepreneur knows that the answer is branding.  And so, the value of investment in brand marketing is abundantly clear.  But, what if you’re not Coca-Cola® or Nerf®?  What if you’re Lehigh Valley Oats or Penn Machine Parts?

A trademark is any word, name, symbol, or device, or any combination thereof that a business uses to uniquely identify or distinguish its products or services from those of its competitors and to indicate the source of the goods or services.  Federal trademark laws permit the owner of a trademark to stop competitors from labeling or advertising their products in any way that is likely to cause a reasonable consumer to be confused as to the source of those products, as it may lead the consumer to incorrectly associate the products with the rightful trademark owner. But, generally speaking, federal registration of a trademark is not available if the elements of the mark merely describe the goods or services, or their characteristics, including their geographic origin.

Consider the advantage conferred upon a lightbulb business permitted to register the trademark in the word BRIGHT.  As a shopper perused the teeming lightbulb aisle of a big box home improvement warehouse, what if one lightbulb could claim the exclusive right to display that descriptive word – BRIGHT – upon its packaging?  BRIGHT – the word that tells the consumer all she needs to know.  This is the bulb she wants to provide the bright light she seeks.  She knows it is because it says so.  She also knows that none of the other bulbs says it is bright.

The Lanham Act – the United States’ federal trademark law – permits registration of an otherwise descriptive mark if the owner of the mark can prove that it has “acquired distinctiveness.”  The legal history around the Lanham Act also refers to this as “secondary meaning.”  If an applicant for federal trademark registration can offer proof that it has used the trademark for more than five years and that the primary significance of the mark in the minds of the consuming public is not the product but the producer, the US Patent and Trademark Office must permit registration of the mark.

The power of acquired distinctiveness has benefited local companies with names like the fictitious examples above.  Consider Bethlehem Steel and Lehigh Valley Dairy Farms® (a registered trademark of Dean Foods Company).  But, while the rights of distinctiveness accrue over time, they need not accrue by chance.

In addition to permitting registration of trademarks, the Lanham Act affords protection of common law trademarks.  That is trademarks that are not registered but indicate source because the business uses them in a manner that causes them to indicate the source.  The Lanham Act also permits registration of descriptive marks that have not yet acquired secondary meaning on the Supplemental Register of the USPTO.  By leveraging the legal rights afforded under these sections of the law, in combination with legally strategic usage of otherwise descriptive marks, businesses may pave their own way to acquired distinctiveness in as little as five years.  That is, businesses may use their five-year plan to capture broad, valuable identity in trademarks that immediately convey to consumers the quality, characteristics, advantages, and value of their products.  Moreover, a business that is successful in this regard may also preclude competitors from using those terms or terms likely to cause confusion with respect to the source of the products or services.

Organizations working together through: their executives – with strategic planning; their Marcom department – executing brand marketing; and their legal advisers – guiding best practices for forming legal foundations for distinctiveness claims – can potentially grow the company’s ownership of highly advantageous, meaningful terms that become suggestive of the company’s goods and the goodwill they carry.

Douglas Panzer, Esq.
Of Counsel For Intellectual Property

Fitzpatrick Lentz & Bubba

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Enforceability of Prenuptial Agreements

When contemplating marriage, there is nothing more romantic than a prenuptial agreement right? Acknowledging that discussing a prenuptial agreement with your potential spouse may not be the most comfortable topic of conversions, it certainly is an important one. Both parties to a prenuptial agreement should be exceedingly careful when entering into the agreement. The language […]

When contemplating marriage, there is nothing more romantic than a prenuptial agreement right? Acknowledging that discussing a prenuptial agreement with your potential spouse may not be the most comfortable topic of conversions, it certainly is an important one.

Both parties to a prenuptial agreement should be exceedingly careful when entering into the agreement. The language that is crafted at the time of execution will be enforced explicitly if a divorce is filed. Accordingly, all the heavy lifting with regard to the agreement is done while the couple is likely quite happy and not anticipating any of the problems that may arise.

A prenuptial agreement will only be tested if a couple is considering divorce. Until that time, it is likely that neither party has revisited the document. There could easily be decades between when the pre-nuptial agreement was crafted, and when it will be enforced.

23 Pa.C.S.A. §3106 is the Pennsylvania law that addresses pre-nuptial agreements. The law does not focus on what must be included in a pre-nuptial agreement but sets out what you must show if you want the Court to declare the agreement is not enforceable. The Court will always start from the assumption that the pre-nuptial agreement is valid and enforceable. As such, the spouse who is unhappy with the terms and wishes to discard the agreement has the burden to show, by clear and convincing evidence, that the agreement should not be enforceable.

There are limited ways in which a spouse can argue that a pre-nuptial agreement is unenforceable.

(1) A spouse can argue that they did not execute the agreement voluntarily. This is very difficult to do. A pre-nuptial agreement will generally have a provision in it stating that both parties are entering into the agreement knowingly and voluntarily. On occasion, a spouse will argue that they signed the pre-nuptial agreement under duress, so the agreement was not voluntary. Duress in this situation is nearly impossible to prove. This is because in Pennsylvania, duress must generally include a threat of physical violence. (Think gun to your head.) A threat from one spouse to the other threatening to take custody of the couple’s children or not follow through with the wedding are not threats that rise to level of legal duress. If you are a competent adult, who can read the pre-nuptial agreement in the language it is drafted in and you agree to sign it, then you have voluntarily agreed to the terms as far as the Court is considered. This is true even if you did not read the document but chose to sign.

(2) The other way a spouse can argue a pre-nuptial agreement is not enforceable is to show that when the agreement was drafted and signed, there was not full and fair disclosure of assets between the parties. This is the conventional argument made by a spouse seeking to discredit a pre-nuptial agreement, and generally the more successful one. The idea behind a pre-nuptial agreement is that both parties have laid all of their cards on the table so to speak. Both parties agree to disclose all of their assets, so the final agreement is a fair distribution of the total assets. If a party is unaware of an offshore bank account because that fact was not disclosed when drafting the pre-nuptial agreement, you may argue the agreement should not be enforced due to fraud or misrepresentation. At that point, you could take the matter before the Court, have the pre-nuptial agreement invalided and negotiate a completely new agreement.

Of note is that the terms of a pre-nuptial agreement are not required to be fair. The Courts will allow parties to enter into bad deals. In fact, Courts have found that parties are bound by the agreement, even if it was not read or fully understood. The duty to read the agreement or seek legal counsel before signing is on the parties. If a party blindly enters into a pre-nuptial agreement with the romantic notation that their prospective spouse would have their best interest at heart, they will be bound by that agreement unless one of the above-limited exceptions applies.

Attorney Kellie Rahl-Heffner of Gross McGinley LLP provides guidance to individuals in divorce matters, child custody, child support and protection from abuse cases. For more information, contact her at krahl-heffner@grossmcginley.com or 484-224-2802.

By: Attorney Kellie Rahl-Heffner of Gross McGinley LLP

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