Legal

Intellectual Property

Are My Bases Covered? Small- and medium-sized business often struggle knowing where to start to protect their intellectual property (“IP”). The following is intended to provide some high-level guidance for each of the major areas of IP. Securing Ownership Perhaps the most important step in protecting your company’s IP is to ensure that it owns […]

Are My Bases Covered?

Small- and medium-sized business often struggle knowing where to start to protect their intellectual property (“IP”). The following is intended to provide some high-level guidance for each of the major areas of IP.

Securing Ownership

Perhaps the most important step in protecting your company’s IP is to ensure that it owns all IP that arises out of the business. This means having a written contract with an IP assignment clause for each owner, employee and independent contractor who generates business-related IP. The company doesn’t automatically own all such rights simply because it paid for the project that generated the IP.

Trade Secrets

Protecting trade secrets (i.e., proprietary business information) means taking “reasonable efforts” to maintain secrecy. Generally, this means (a) having a contractual non-disclosure obligation for everyone who comes in contact with proprietary business information, (b) limiting access to the proprietary business information to authorized persons, (c) requiring passwords or biometric authentication for access to electronically-stored proprietary business information, and (d) requiring a key, passcode, or passkey to gain access to hard copies of documents, prototypes, proprietary equipment, and the like.

Patents

Whenever possible, seek advice from a patent attorney before you showing the invention to anyone outside of your company. Disclosing an invention to a third party prior to filing a patent application will result in a loss of the ability to obtain patent protection in many foreign countries. Failure to file a patent application within one year of the first public disclosure of an invention will, in most cases, result in a loss of the ability to seek a US patent.

Keep in mind that patents are business assets and should be sought only when the potential value of obtaining patent protection outweigh its costs. This is often difficult to quantify – but decision-making can be guided by the following questions. What is the likely revenue stream associated with the invention over the next five years? 20 years? How long will the invention have commercial value? What are the barriers to entry for potential competitors? How difficult will it be for competitors to design around the patent portfolio?

Before finalizing the design of a new product, evaluate the risk that an existing patent may cover that product and consider having a freedom to operate study conducted. If performed in a timely fashion, a such a study may enable you to make changes to the product that will avoid patent infringement without disrupting sales. If your competitors are aggressive patent filers, consider having a watch service set up to monitor their patent filings.

Trademarks and Branding

How do customers identify your products and services and distinguish them from those of your competitors? How do potential customers find you? Trademarks are the key —- your business name, logo, domain name, slogans, and product names. Protecting your company’s trademarks and avoiding situations in which you have to change a trademark due to a conflict with another existing trademark user is key to maintaining the strength of your brand – even for a small company.

Consider having trademark clearance investigations conducted and obtain US trademark registrations for your company name and for trademarks used with key products and services. A clearance investigation will reduce the risk that you will be forced to change the name of your company or a key product or service after you have established a strong connection with customers. Obtaining a US trademark registration will reduce the likelihood that another company in your industry will obtain rights to concurrently use trademarks similar to those being used by your company.

Copyright

Unlike patents, most rights associated with copyright do not require the owner to obtain a copyright registration. The most significant benefit associated with obtaining a registration is enhanced infringement damages.

The most important step to take with respect to copyright is to make sure that the company owns the rights to IP that arises out of the creation of copyrightable subject matter. As discussed above, this is accomplished through written contracts with IP assignment clauses.

Disclaimer: This article is provided for informational purposes only and not for the purpose of providing legal advice. Please contact an attorney to obtain advice with respect to any particular issue or problem.

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Home Is Where the WHAT IS?

Strategic Use Of Domicile And  Residency Laws In Income Tax And  Estate Planning For Individuals Given advances in communication and other technology, global business opportunities, and the ease of travel, it is not surprising that many of my clients live and work all over the United States and the world.  Many began their lives as […]

Strategic Use Of Domicile And  Residency Laws In Income Tax And  Estate Planning For Individuals

Given advances in communication and other technology, global business opportunities, and the ease of travel, it is not surprising that many of my clients live and work all over the United States and the world.  Many began their lives as Pennsylvania residents.  Others settled in this state to embark on career opportunities or adapt to personal and family matters.  Still, others maintain multiple residences and/or offices in various parts of our nation and the world.    Career-related moves, family needs, retirement, and climate are some of the factors responsible for such changes over the course of one’s professional and personal life.

How does one make tax sense of — and manage — effective income tax and estate tax planning in the context of a multi-jurisdictional existence?    A wise client will seek appropriate legal and tax counsel in planning to strategize and maximize the benefits of such changes from a tax and estate planning perspective.   Effective counsel can provide further legal guidance, as well, as to the relative benefits of business taxes, creditor protection, homestead laws, and other legal aspects of the states under consideration.
Your income tax and estate planning efforts in this context are effective if you can fully answer the following questions:

1 Are my Will, Power of Attorney (financial, legal, and medical), Living Will, and any trusts I have created valid in the jurisdiction of my domicile?

2 Do they—or other documents or planning techniques implemented for me– adequately address my ownership of real estate in other jurisdictions?

3 Of what jurisdiction am I a resident for income tax purposes for the current year? For the prior year?  For future years?

4 Have I complied with all applicable state laws in filing my annual income tax returns?

5 Do I understand, and am I observing, the necessary formalities in my desired state of domicile/residence (physical presence in the state for at least the required period, voter registration, driver’s license, locations of doctors, lawyers, family, friends, religious community, favorite charities, etc.) to support my legal and tax residence there?

6 Have I effectively disengaged from all other states with which I have contacts, in order to substantiate my non-resident status in those states?

7 Do I understand any legal and tax differences among jurisdictions in their treatment of inherited assets by surviving spouses?

8 Am I retaining adequate records to support my domicile and residency tax planning?

9 Do I have the proper professional advisors (including an estate and tax lawyer) in place to recommend and create an estate and income tax plan for me that will achieve my personal and legal objectives, with optimal tax savings?

While the details of such a planning analysis extend beyond the scope of this article, a comprehensive, rather than piecemeal, approach to this planning is critical.   The foregoing questions and the following summary should prove helpful to the thoughtful client contemplating strategic estate and income tax planning in a multi-jurisdictional situation.

The legal concepts of “domicile” and “residency” constitute the core of this planning process.  The legal term “domicile” is generally defined as the place where an individual has his or her permanent home, and the place where one intends to return whenever he or she is absent.  A state’s statutes, and the case law interpreting those statutes—for purposes of this article, the law of Pennsylvania—often uses “domicile” and “residency” as interchangeable terms. The PA Supreme Court has ruled that domicile must be shown by both intention and conduct,  and the burden of proof of a change in domicile is borne by the person claiming such change.

While the definition of domicile is important in determining the state in which one’s Will should be probated, and his or her estate opened at one’s death, it will not preclude the need to commence estate administration in other states in the deceased client owned real estate.

Pennsylvania defines a “resident individual” in 2 ways:   (1) an individual who is not domiciled in Pennsylvania but is present in Pennsylvania for more than 183 days in a calendar year, Or (2) a person who is domiciled in Pennsylvania, maintains a “permanent place of abode” in Pennsylvania, and spends at least 30 days in Pennsylvania each taxable year.   Thus, if a person is domiciled in PA and maintains a permanent abode in PA, such is enough to render him or her a Pennsylvania resident for income tax purposes.   As such, taking the steps necessary to establish residence in a state other than Pennsylvania will not of itself terminate one’s status as a Pennsylvania domiciliary for income tax purposes, and adequate case law in PA supports this caveat.

The tests applied by PA courts with respect to one’s residency at death for PA Inheritance tax purposes are somewhat subjective in nature—and not unlike those discussed above.
Effective estate and income tax planning for the increasing number of clients with multiple residences in, or other personal or professional contacts with, various jurisdictions warrants comprehensive planning with a qualified professional team, including a skilled estate and tax lawyer, and can present strategic opportunities to the savvy client.

An Allentown native, Judith A. Harris, Esquire, LL.M. (Taxation) is an Equity Member of the law firm of Norris McLaughlin & Marcus, P.A., a full service business law firm (including Immigration Law, and a member of the Meritas™ Law Firms Worldwide network) with offices in Allentown, PA, Bridgewater, NJ, and New York City, for which she has chaired the PA Office’s Estate, Trust and Tax Practice Group.

1 See Black’s Law Dictionary 435 (Fifth Ed. 1979).
2 Dorrance’s Estate, 163 A. 303, 309 (Pa. 1932).
3 In re Nomination Petition of Prendergast, 673 A.2d 324, 327-38 (Pa. 1996).
4 72 Pa. C.S. Section 7301.
5 61 Pa. Code Section 101.1  (A “permanent place of abode” need not necessarily be owned by the taxpayer.)

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The Right to Remain Silent

A Most Precious Right One of the most precious rights enshrined in the United States Constitution is the right to remain silent.  This protection was inserted by our founding fathers who were well aware of brutal interrogation methods used in the past. The Fifth Amendment states: “nor shall any person be compelled in any criminal […]

A Most Precious Right

One of the most precious rights enshrined in the United States Constitution is the right to remain silent.  This protection was inserted by our founding fathers who were well aware of brutal interrogation methods used in the past.

The Fifth Amendment states: “nor shall any person be compelled in any criminal case to be a witness against himself.”

This right is available to all citizens, innocent or guilty.  If the government wishes to prosecute one of its citizens it must do the hard work of gathering the evidence, not squeeze the defendant until he confesses.

This protection makes the work of the police and prosecutors more difficult.  That is why it is there.  During the British Raj in India, it was sometimes said, why go about in the hot sun gathering evidence when it is easier to sit in the shade rubbing pepper in some poor devil’s eyes.

Rubbing pepper in someone’s eyes is not a practice currently followed, but government agents are often specially trained in interrogation methods which can be the psychological equivalent.

Hot sun or not, inconvenient or not, the government must do its own work.

Don’t only guilty people take the 5th?

The right is equally available to innocent people and perhaps more valuable.  Until a person has had the advice of a lawyer and knows what the object of the government’s investigation is, it is unwise to say anything.

Remaining silent also ensures that any mistakes or misstatements you may make are not deemed to be lies and used against you.  Recall that Martha Stewart went to jail not for stock manipulation, but for lying about it.

If any government agent reads you your rights, it is important to exercise those rights.  It is also important to know that these rights are only read to you if you are in custody.  If the police ask you to stop by and you do so, you are not in custody, and anything you say can and will be used against you.

If you have an encounter with the police, it is necessary to expressly invoke your Fifth Amendment right.  In a 2013, United States Supreme Court case, the Court required that you must specifically refer to the Fifth Amendment such as by stating, I am not answering any questions on Fifth Amendment grounds.

Merely failing to answer questions does not invoke your Fifth Amendment right, and the police can continue to ask questions and use your answers against you unless you properly invoke your constitutional right.

There are two questions that are often asked that sound similar but are very different.
The first is: do I have to speak to the police.  The answer to this is no, you must identify yourself, and you should always be civil and courteous, but you do not have to answer any other questions.

The second question is: should I speak to the police?  This can be a difficult and complicated decision requiring the advice of counsel.  If in fact, you have done something that perhaps you should not have done, a lawyer can determine the best way to deal with this, and also can get in touch with the prosecuting attorney to reach an agreement before any statement is made.  The police cannot make a promise that binds the government; only a prosecuting attorney can do so.

The situation is compounded because it is perfectly legal for the police to lie to you in an attempt to obtain a statement.  It is called investigative technique.  However, if you lie to the police, that in itself can be a crime.

The advice to remain silent is easy to give but often difficult for people to accept.  Many people feel that if they are innocent, they have nothing to hide, and others feel that, surely, they can explain their situation in such a way as to satisfy the police.  This is always unwise.

The police do not attempt to question anyone without some basis or reason to think that useful information might be provided.  Someone once said that there are no deaf and dumb people in jail.

In an attempt to hammer home the simple advice to remain silent, I have a mounted fish in my office under which appears the statement: If I had kept my big mouth shut, I would not be here.

This advice is not new.  In 1949 United States Supreme Court Justice Jackson stated in an opinion:

“To subject one without counsel to questioning which may and is intended to convict him is a real peril to individual freedom … any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.”

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Crowns & Contracts

In the late 1980’s-early 1990’s, I was a bright-eyed, naïve law student at Temple University Beasley School of Law absorbing lectures like a sponge.  Like many of my classmates, I worried about grades, passing the dreaded bar exam, and most importantly, what does the future have in store for me in the legal profession? Never […]

In the late 1980’s-early 1990’s, I was a bright-eyed, naïve law student at Temple University Beasley School of Law absorbing lectures like a sponge.  Like many of my classmates, I worried about grades, passing the dreaded bar exam, and most importantly, what does the future have in store for me in the legal profession? Never did I envision myself working as a Pageant Attorney within the Miss America Organization, Inc.  Did I graduate law school and jump directly into that position?  Only in my dreams.

My career started in the Lehigh Valley.  After searching for employment, I was working for the late Jay A. Scherline, Esquire in 1995.  There were two other attorneys at the firm who represented the Miss Pennsylvania Scholarship Organization, Inc.  My responsibilities centered around estate work, researching and contract drafting.  In my eyes, far from exciting.

In 1996,  Jay Scherline handed me boxes of files, and he said, “The pageant people liked the other lawyers, so they better like you.”  I was officially the lawyer for the Miss Pennsylvania Scholarship Organization, Inc.!  After being thrown into the water, I was determined to ride the wave of success.

My hard work and determination paid off.  I established my own identity in pageant circles.  Today, I now work directly for the Miss Pennsylvania Scholarship Organization, Inc.  People consistently ask me, “What exactly is your job?” “That sounds like fun.” My journey in the legal profession could not be any more exciting and fulfilling.  I draft and negotiate contracts, obtain music/publisher’s clearances, and most recently, I created a scholarship foundation and acquired 501(c)(3) status for it. To this day, I endure early mornings, late nights, weekends, and some holidays.  There are countless galas, after-parties, and pageants to attend.  My network of friends in the Miss America Organization, Inc. extends nationwide.  The most rewarding part of my job is empowering young women and assisting them with educational opportunities through scholarships.  I have seen thousands of contestants earn degrees and have successful careers in law, medicine, politics, journalism, public relations, marketing, and entertainment, just to name a few.
I also asked, “How do you get a job like that or even be successful with it?” Here are five things I have learned along the way:

1. You will not jump directly into your dream job.  Babies must crawl before they can walk.  The same principle applies to employment.  You need to gain skills and experience from typical, simple cases before working your dream job.

2. Networking is your lifeline.  Thousands of people share your dream.  Competition is tough.  It’s even tougher when people perceive the position or company as glamorous.  Many people have experience and contacts.  There may be days you are not motivated to go the extra mile.  Push yourself.  Attend luncheons, dinners, networking events, and cocktail parties.  You never know who will be there.

3. Life is mostly about relationships.  Skills may get you in the door, but good, solid relationships will keep you in the room.  People like dealing with familiarity and what makes them comfortable.

4. Use social networking wisely.  People are watching your social media accounts.  Avoid political, suggestive, and unflattering material.  Wish friends Happy Birthday and extend congratulatory comments to them on life events.  People remember how well you treat them.

5. Be energetic, likable, and smile!  If you receive customer service from someone who appears to be bored, then you rate your experience as poor.  You may not return to the business again.  Energetic, enthusiastic people attract others.  People feed off their positive attitude.

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Bad Faith Claims Against Insurers

The need for insurance coverage is an accepted fact of life. Auto insurance, business owner’s insurance, homeowner’s insurance, etc. are necessary to protect our families and our belongings. Fortunately, many of us do not have to avail ourselves of the protections afforded by our insurance policies. When problems do arise, however, insurers often do not […]

The need for insurance coverage is an accepted fact of life. Auto insurance, business owner’s insurance, homeowner’s insurance, etc. are necessary to protect our families and our belongings. Fortunately, many of us do not have to avail ourselves of the protections afforded by our insurance policies. When problems do arise, however, insurers often do not handle claims in the manner as required by law. Consumers need to know that they are not only entitled to insurance policy proceeds but may also recover additional bad faith damages when an insurance company fails to comply with its duties of good faith and fair dealing.

All insurance policies are deemed to include an implied covenant of good faith and fair dealing. The actions of insurers are governed by the Unfair Insurance Practices Act, 40 P.S. § 1171.1 et seq., the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. and the Unfair Claims Settlement Practices Regulations, 31 Pa. Code § 146.1 et seq. These statutes and regulations require insurers to fully and fairly investigate, evaluate and negotiate a fair resolution of a claim under an insurance policy. The financial realities of the modern economy have realigned the goals of insurance companies. Where once insurance was considered a service, it is now merely a commodity, driven by the goals of price and profitability. The welfare of the customer has often now taken a back seat to the bottom line.

The Pennsylvania statutes and regulations are designed to maintain the balance of fairness in insurance transactions. Insurers are required to handle claims promptly and fairly. Unfortunately, in today’s market place, if a consumer wants a prompt resolution of his or her claim, it is often not fair; if a consumer wants a fair resolution of his or her claim, it is often not prompt. In such situations, the consumer needs to be aware of the potential remedy of additional bad faith damages when an insurer fails to comply with the statutory mandate of good faith and fair dealing.

In Pennsylvania, an insured may pursue common law and statutory bad faith claims against insurers. Pennsylvania has long recognized a common law bad faith claim for the breach of the duty of good faith and fair dealing. Cowden v. Aetna, 134 A.2d 223 (Pa. 1957). This common law bad faith claim, customarily seen in the third party (tort action) excess verdict situation, has been recognized by the Pennsylvania Courts in the context of a first party claim, e.g., homeowner’s claims, property damage claims, uninsured and underinsured motorist claims, etc. See Birth Center v. St. Paul, 787 A.2d 376 (Pa. 2001). This common law bad faith claim has been supplemented by additional statutory remedies. In 1990, the Pennsylvania Legislature provided statutory bad faith damages with the enactment of §8371 of the Judicial Code. Section 8371 provides additional damages that may be recovered in the bad faith claim. See Allstate v. Wolfe, 105 A.3d 1181 (Pa. 2014). Under §8371, upon a finding of bad faith on the part of the insurer, a Court may award (1) interest; (2) costs; (3) counsel fees; and (4) punitive damages. The possibility of the award of these extra-contractual bad faith damages can often be used to spur an insurer to handle a claim promptly and fairly as required by law. Insureds, therefore, should be aware of the duties imposed upon insurers in handling claims as well as the possible damages which can be recovered if an insurer fails to abide by the good faith requirements of Pennsylvania law.

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When In Doubt, Don’t Tweet It Out

How Libel Law Has Caught up with Twitter These days, one can get in trouble with a single hashtag.  It is no secret that Twitter and other social media platforms are inundated with the lowest kind of discourse and outright hostile and malicious statements.  Though defamation law is hundreds of years old, it continues to […]

How Libel Law Has Caught up with Twitter

These days, one can get in trouble with a single hashtag.  It is no secret that Twitter and other social media platforms are inundated with the lowest kind of discourse and outright hostile and malicious statements.  Though defamation law is hundreds of years old, it continues to evolve.  You can defame someone with a simple retweet and a hashtag.  Despite its seemingly superficial limitations, Twitter is an incredibly powerful publishing tool when in the wrong hands that can cause a lot of havoc.

We need to look no further than 1600 Pennsylvania Avenue to see how a single tweet can ignite the entire media complex (and news consumers around the world) into an instant firestorm of amplified outrage, commentary, and in a lot of cases, sheer ignorance.

Some recent notable litigation over allegedly libelous tweets include:

Actor James Woods just filed a defamation lawsuit alleging $10 Million in damages in California state court against Twitter user @abelisted who tweeted that the actor was “a cocaine addict.”

Musician Courtney Love’s misguided use of Twitter has resulted in multiple suits being filed against her by various parties, resulting in settlements of hundreds of thousands of dollars over the years.

Singer Ciara filed a lawsuit against rapper and performer Future, alleging $15 Million in damages over tweets that Future published about Ciara surrounding the break-up of their marriage.

You don’t need to be a public figure or in the entertainment industry to end up on the wrong side of a defamation lawsuit. From your smartphone or desktop, you can publish short commentary about any person or thing to the entire world.  As of Q1 2017, Twitter claims 328,000,000 active users.

That’s a lot of potential users generating a lot of content.  Tweets can also reach a non-Twitter audience via television and more traditional online news reporting.  Look no further than the “Mean Tweets” segment on the late night TV show Jimmy Kimmel Live! And you’ll quickly see what I mean.

So what is libel, anyway?  Simply stated, libel is a defamatory statement published in writing. The form of the writing is immaterial – Twitter certainly qualifies as a written publishing platform that can deliver a libelous statement.  A defamatory statement is a false statement of fact that exposes a person to hatred, ridicule or contempt, causes him or her to be shunned or injures his or her business.  Here is where the cyber world and real world intersect: statements made on Twitter can incite the public to threaten or actual harm to a person in the real world.

It is important to note that statements of opinion are not statements of fact.  In other words, a statement that “Mr. X is a thief” could be defamatory, but a statement of “I think Mr. X is a thief” might not be defamatory, based on the circumstances.  You should not automatically assume, however, that simply labeling a statement as “your opinion” makes it so.

Different legal standards apply to private citizens and public figures.  Generally, more types of statements could be construed as defamatory when made against a private citizen than a public official.  In other words, a politician or movie star has less legal protection than a private person does in this area of the law.  It’s important to note also that one can defame a company or business by publishing a libelous or defamatory statement about that company’s goods or services.  This is called trade libel.

In Pennsylvania, a cause of action for defamation must be asserted within one year of its occurrence.  This is an unusually short statute of limitations.

If you believe that someone has made a libelous statement about you on any social media platform, contact your legal counsel immediately.   Many social media platforms, including Twitter, may opt to take down the alleged defamatory statements if your counsel can be persuasive.

If you are a novice at Twitter, here are Tuk’s Rules of Thumb:

1. Use Twitter to praise colleagues, business partners, sponsors, and fans.  Stay positive!

2. Think very carefully before making a negative statement about any person or company on Twitter, even if it’s 100% true.  It can take years and tens of thousands of dollars to resolve a Twitter Libel case – or any defamation case for that matter.

3. When in doubt, don’t tweet it out.

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Self-Driving Vehicles

The Good, the Bad, and the Inevitable As personal injury lawyers, we see the devastating impact of auto accidents upon individuals’ lives each day.  The arrival of self-driving technology brings with it the promise of safer roadways and fewer accidents, but it also presents challenges to numerous U.S. industries — including auto insurance, commercial transport, […]

The Good, the Bad, and the Inevitable

As personal injury lawyers, we see the devastating impact of auto accidents upon individuals’ lives each day.  The arrival of self-driving technology brings with it the promise of safer roadways and fewer accidents, but it also presents challenges to numerous U.S. industries — including auto insurance, commercial transport, and personal injury litigation.  So, besides safety, what other benefits do self-driving cars offer?  How badly will they affect jobs in the United States?  And when will they actually be here to use?  This article aims to answer those frequently asked questions.

What is the Benefit of Self-Driving Technology?

With the world seeming to progress at lightning speed in technological advancement, it bears asking – is this new technology helpful, or are we creating merely to create?  While self-driving technology presents challenges, the benefits it offers to society are undeniable.

Safety

There are about 30,000 fatal accidents in the United States every year.  When one considers alcohol, texting, or road rage, it is no surprise that 95% of fatal accidents are the result of human error.  Experts predict that self-driving vehicles will nearly eliminate those fatalities and dramatically reduce the number of non-fatal accidents.

Inclusive Transportation

With self-driving comes ride-sharing.  Gone will be the days of individual vehicle ownership.  Instead, consumers will summon a self-driving car whenever needed – much like Uber and Lyft, except no humans required.  Widespread ride-sharing will allow seniors to retain independence and provide accessible transportation for the disabled and other individuals who could not otherwise drive (including your kids who need to get to soccer practice while you are stuck at work).

Productivity

Ask any regular train commuter, and she will tell you why she prefers public transit to driving — “I can get work done.”  Self-driving cars will allow individuals to use their full commute time to finish a presentation, respond to emails, or simply fit in a much-needed power nap.  Added benefit: decreased stress and less road rage.

Will Self-Driving Cars Take Away Jobs?

Automated technology poses a threat to human jobs, and self-driving cars are no exception.  Some of the more obvious jobs threatened by self-driving technology include truck drivers, taxi drivers, bus drivers, and body shop mechanics.  Perhaps not so obvious, however, is the impact self-driving technology will have on other commercial industries, including auto insurance and personal injury litigation.  Those professions depend on the existence of auto accidents and resulting injuries.  As the motor vehicle accident rate approaches 0%, and fewer individuals own their own vehicle, consumers will find it difficult to justify spending hundreds of dollars per year on auto insurance premiums.  Indeed, some experts predict that the entire model of auto insurance will soon become archaic.

When Will Self-Driving Cars Become Universal?

The short answer: sooner than you think.  The long answer requires understanding each self-driving technology “phase,” of which there are four.  Phase 1 of self-driving technology refers to “passive autonomy, ” and it already exists throughout the consumer market.  Examples include blind spot warnings, automatic wipers, backup warnings, and driver-initiated cruise control.  Phase 2 refers to “limited driving substitution.”  Examples include assistive parallel parking and self-braking.  Many Phase 2 features have already become standard in today’s vehicles.

Phase 3 refers to “complete autonomous capability” – meaning the vehicle can completely drive itself, but a human must sit behind the steering wheel to intervene if necessary.  While Phase 3 vehicles have yet to reach the mass consumer market, several technology companies, including Google and Uber, have developed and are currently operating Phase 3 vehicles throughout the country.  Finally, Phase 4 refers to “100% autonomous penetration.”  Phase 4 requires no human interaction and is fully sensor driven.  Phase 4 vehicles will have no steering wheel, pedals, or mirrors.  All of the driving will be controlled by a computer, utilizing a combination of sensors, the internet, and GPS technology.  Many experts predict that Phase 3 vehicles will become fairly universal within the next 10-15 years, with Phase 4 autonomy following soon after that.  Of course, that timing depends on legislative regulation and consumer acceptance.

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A Legal Outlook at the Penn State Hazing Crime

The tragic hazing death of 19-year-old Timothy Piazza rocked the nation after harrowing details have been steadily revealed by countless news agencies in the last few months. Penn State is once again the center of controversy as many believe this young man’s death was preventable. Eighteen fraternity members have been criminally charged. Eight students face […]

The tragic hazing death of 19-year-old Timothy Piazza rocked the nation after harrowing details have been steadily revealed by countless news agencies in the last few months. Penn State is once again the center of controversy as many believe this young man’s death was preventable. Eighteen fraternity members have been criminally charged. Eight students face the most serious offenses including aggravated assault and involuntary manslaughter. The remaining students are looking at lesser offenses to include hazing or furnishing alcohol to minors.

Timothy Piazza died earlier this year, on February 4, after pledging Beta Theta Pi to a Penn State fraternity. A grand jury has concluded that young Timothy drank a life-threatening amount of alcohol during a hazing ritual which caused numerous falls. Security cameras at the house show he fell down a 15-foot flight of stairs shortly after binge drinking, then fell several more times into a railing, on the floor, and down the stairs again, according to the grand jury’s presentment. The members of the fraternity didn’t call 911 until nearly 12 hours after Timothy’s first fall. Timothy suffered severe head trauma, a shattered spleen, and ultimately succumbed to traumatic brain injury. A forensic pathologist estimated his blood-alcohol content between .28 and .36 percent approximately four times the legal limit for driving.

The most serious charge is aggravated assault. A person is guilty of aggravated assault if he or she attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under the circumstances manifesting extreme indifference to the value of human life. As charged, aggravated assault is a felony of the first degree. If convicted of aggravated assault, members face a maximum of 10 to 20 years in state prison. The other serious charge is involuntary manslaughter.

A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he or she causes the death of another person. Involuntary manslaughter is a misdemeanor of the first degree.  If convicted of involuntary manslaughter, members face a maximum of 2½ to 5 years in state prison.

Statutory Maximums, however, are just that – the maximum penalty that a judge could legally impose for the convicted crime. An individual rarely receives the maximum sentence that is discussed routinely on the news.

Yet, it is the simplest understanding of the wide range of potential outcomes. Sentencing involves numerous factors. In Pennsylvania, the trial judge is free to impose any sentence that they believe is appropriate given the nature of the offense, the circumstances of the defendant, and the needs of the community.  The judge will also take into account any aggravating and mitigating factors. In most cases, judges provide a minimum sentence within a set of guidelines. Guidelines provide suggestions for conduct so that an individual convicted in Allentown may be treated similarly to someone convicted in Pittsburgh or Harrisburg. A judge reviews these guidelines in determining the appropriate sentence.

Guidelines take into account the seriousness of the offense and the individual’s past history.  If a judge feels that probation is not appropriate, then the judge must give a minimum and maximum sentence. The minimum sentence would permit an individual a chance to be released at their minimum and then be subject to supervision until the given maximum. If convicted of these more serious offenses these students could certainly face significant jail time.

Each student convicted of aggravated assault could face a potential standard guideline range of 36-54 months if found to have caused serious bodily injury, or 22-36 months if found to have attempted to cause serious bodily injury as a minimum sentence. This is drastically different than a conviction for involuntary manslaughter. Involuntary manslaughter usually carries a standard sentence range between 3-12 months of minimum imprisonment. These guidelines assume that the student has no prior record. Hopefully, this offers a better understanding of the seriousness of the allegations against these students. Now, a jury will determine each student’s criminal culpability.

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interns

To Pay Or Not To Pay: The Internship Conundrum

Monica Lewinsky.  Darren, from Seinfeld.  That strange, quiet kid in the cubicle next to you all summer whose name you do not know and whose purpose you’re really not sure of.  Interns, some famous, some infamous, some nameless, can potentially cause significant problems for an employer.  Given that it is almost intern season, employers should […]

Monica Lewinsky.  Darren, from Seinfeld.  That strange, quiet kid in the cubicle next to you all summer whose name you do not know and whose purpose you’re really not sure of.  Interns, some famous, some infamous, some nameless, can potentially cause significant problems for an employer.  Given that it is almost intern season, employers should be mindful of some of the legal issues presented when they decide to hire an intern.

The initial issue faced by employers is whether the internship will be paid or unpaid.  As a general matter, under both state and federal law all individuals who perform work for a company are considered “employees” and must be paid at least minimum wage unless they fall within certain exceptions.  The exceptions include not only the independent contractor exception, which is the one most employers use and recognize but a specific exception for “unpaid interns.”  Accordingly, if an employer establishes an internship in accordance with specific requirements, it can be considered unpaid under the law.

While this sounds like a good idea for employers (FREE LABOR!) the hurdles an employer must overcome in order to establish an unpaid internship are significant.  As an initial matter, the primary beneficiary of the internship must be the intern.  This means that an employer cannot have an unpaid intern who merely answers phones, files documents, and gets the boss coffee.  Additionally, for the internship to be unpaid, it should be tied to a formal education program, the intern should not displace regular employees, there should be no guarantee of employment subsequent to the internship, and there should be an understanding (preferably in writing) with regard to compensation or the lack thereof.

In the event that an employer is able to meet all of the foregoing requirements, the internship can be unpaid.  Unfortunately for an employer, however, pay is not the only issue it will be presented with when hiring an intern for the summer.

As with all its other employees, paid interns are generally covered under both federal and state statutes which provide protections for individuals to be free from discrimination and harassment in the workplace.  Accordingly, an employer would be potentially liable for claims of harassment or discrimination brought by a paid intern which arose out of the internship.

Unpaid interns, however, were previously left out in the cold with regard to such protections.  In this regard, anti-discrimination statutes only protect “employees.”  Because unpaid interns are not generally considered employees under state or federal law, they have not traditionally been afforded any protections with respect to harassment and discrimination.

Notwithstanding the foregoing, several states have recently passed laws which provide protections to unpaid internships.  Pennsylvania, however, is not one of those states.  Nevertheless, this does not mean that employers are free to harass and discriminate against unpaid interns.  Courts have afforded unpaid interns protections under anti-discrimination statutes if they have received nonfinancial benefits that create or relate to career opportunities, such as free training and educational opportunities.  Given that most internships would provide free training or an educational opportunity, a Pennsylvania court may find that an unpaid intern is covered under the anti-discrimination statutes and, in turn, that an employer is subject to liability.

As such, whether an intern is paid or unpaid, employers must take all claims of harassment or discrimination seriously and conduct a thorough investigation.  A defense consisting of “I didn’t think they were protected, so I didn’t care” is unlikely to hold much weight with a court.

Finally, depending on the internship, an intern may be afforded access to an employer’s confidential or proprietary information.  Employers should not merely hope that an intern keeps such information a “secret” and does not discuss the information with his or her roommate over a game of beer pong.  Employers should take affirmative steps to protect any confidential or proprietary information which will be provided to an intern during the internship.

In this regard, employers should have interns execute non-disclosure agreements prior to the commencement of the internship.  The nondisclosure agreement will prohibit an intern from disclosing an organization’s confidential information to third parties both during the internship and after termination. Provided the nondisclosure agreement is not overbroad and is discussed with the intern prior to execution, a court will likely find such an agreement enforceable.

Employers are always tempted to hire interns during the summer.  Employers should be mindful that there is potential liability hiding around every “friend’s sister who needs an internship and says don’t worry, I’ll work for free.”  While not every internship ends in a Presidential impeachment, it can end it costly litigation for an employer.

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pets

Planning For Your Pets: Pennsylvania’s Stance on Pets and the Resultant Impact on Estate Planning

People often refer to pets as members of the family.  I am known to do this myself.  If my mom hints about grandchildren, I remind her that she has the sweetest, goofiest, most adorable granddog on earth.  However, Pennsylvania courts, like my mother, do not agree that my dog, Mimo, should be given the same […]

People often refer to pets as members of the family.  I am known to do this myself.  If my mom hints about grandchildren, I remind her that she has the sweetest, goofiest, most adorable granddog on earth.  However, Pennsylvania courts, like my mother, do not agree that my dog, Mimo, should be given the same treatment as a grandchild, no matter how much I love him.  Under Pennsylvania law, pets are considered property.

In 2002, the Pennsylvania Superior Court decided the case of DeSanctis v. Pritchard.  Following their separation, DeSanctis and Pritchard made an agreement, granting DeSanctis the right to visit their dog, Barney, the second weekend of each month.  This arrangement worked well until Pritchard moved and DeSanctis could no longer see Barney.  DeSanctis filed suit claiming breach of the agreement.  The decision that followed created what is now known as the “Barney Rule.”  Under this rule, Pennsylvania courts refuse to enforce custodial visitation or shared custody of pets. Instead, they consider pets to be personal property.

The Barney Rule not only affects divorce decrees, as in DeSanctis v. Pritchard but also estate plans. Unlike other personal property in your estates, like jewelry and furniture, if your pets outlive you, they will need food, shelter, and care.  Although you cannot leave money directly to your pets, you can make sure your pets will be well cared for, and you can do so in a number of ways.

A pet can be left to someone named in a will, just as personal property is bequeathed.  Those who select this method of caring for a pet posthumously, often also leave the beneficiary a sum of money in recognition of the costs that go along with pet ownership.   One drawback of using a will to provide for a pet is that a will must be probated.  Having a will can create a lapse between the testator’s death and the transfer of “property,” in this case, the pet.  Further, a will cannot create binding instructions for the care of the pet and cannot be enforced if you are still living, but unable to continue to care for your pet.
A pet trust solves these shortcomings and can be executed in one of two ways.  A testamentary trust creates a pet trust as part of a will, meaning the pet trust does not go into effect until the death of the testator.  An inter vivos trust, on the other hand, creates a pet trust that takes effect upon the grantor’s incapacity or inability to care for the pet, for example, upon admittance to a nursing home.  The force and effect of the pet trust will continue until the death of the pet for which it was created.  As with any trust, the pet trust must be funded and a trustee named.

A pet protection agreement is similar to a pet trust but without the need for an attorney.  Like a pet trust, the protection agreement can be enforced during the life of the owner and after his death.  Unlike a pet trust, a pet protection agreement does not require funds to be created.

For those who do not have friends or family willing or able to take responsibility for a pet upon their death or incapacity, the Pennsylvania SPCA (PSPCA) has developed the Guardian Surrender Program.  This program requires a copy of estate planning documentation evidencing a minimum bequest of $2,500.00 per pet to the PSPCA.  Upon the owner’s death, the PSPCA will then try to find a new home that meets the needs of the pet.

Despite Pennsylvania’s seemingly harsh stance on pets as personal property, these are four ways that you can ensure that your pets will continue to be well cared for and loved when you are no longer able to look after them.

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