Amendment to Pennsylvania Liquor Code Allowing Direct Shipment of Wine

Posted in Beer & Spirits

Recently, the Pennsylvania Senate passed House Bill 189, which amends the Pennsylvania Liquor Code to permit wine producers to ship wine directly to Commonwealth residents and reduces the special liquor order markup for licensees. Before wine-makers can start shipping their wine, they will need to obtain a direct wine shippers license, which must be renewed on an annual basis. Once the license has been obtained, the licensee may ship an unlimited amount of wine to any Pennsylvania resident who is over the age of 21 for their personal use.

Of course, Bill 189 requires the recipient of the wine to provide proof of age prior to delivery. While the direct wine shipper must verify the buyer’s age in a manner approved by the Pennsylvania Liquor Control Board, the PLCB’s website does not yet provide guidance on the specific method to be used. Under the current law, customers are required to pick up ordered wine at a Pennsylvania Wine and Spirits Shoppe where they must provide proof of age and complete an affidavit attesting to the use of the alcoholic beverage by someone of legal age. The shipped wine must include a special label which states: “Contains Alcohol: Signature of Person 21 Years of Age or Older Required for Delivery.”

Direct wine shippers must agree to collect the 6% sales tax, any local sales taxes imposed by counties of the second class or cities of the first class, the 18% liquor tax and shipping charges on all products shipped into and within the Commonwealth. The markup on Special Liquor Orders is reduced from 30% to 10%, which means restaurants and bars will pay less when ordering products that are unavailable at the state store. The PLCB projects the reduction could reduce revenue by approximately $16,500,000 annually based on the $67,000,000 in special liquor orders in 2013-2014. The reduction could also mean a more extensive selection of wine and spirits in Pennsylvania bars and restaurants.

Proposed Federal Trucking Regulation Would Prohibit Shippers and Transportation Intermediaries From Coercing Drivers to Violate FMCSR

Posted in Personal Injury

A recently proposed regulation aimed at prohibiting driver coercion could have a significant impact on the way shippers and transportation brokers hire trucking companies to move freight across the U.S. This proposed rule seeks to prohibit motor carriers, shippers, receivers, or transportation intermediaries from coercing drivers to operate commercial motor vehicles in violation of certain Federal Motor Carrier Safety Regulations (FMCSR), including drivers’ hours-of-service limits and drug and alcohol testing rules.

In practice, simply requiring a trucking company to deliver a load within a narrow time window can amount to coercion if the trucking company accepts the job knowing that it will require the violation of federal regulations. It is also possible that contractual language instituting penalties for late delivery could be construed as coercion. The proposed penalties for violation of this rule would be up to $11,000 per incident with a possible revocation of operating authority.

The transportation industry is understandably concerned that the proposed regulation will require sweeping changes to their supply chain processes. However, there is little doubt that the proposed driver coercion regulation would increase highway safety. Shippers and brokers would be forced to conduct thorough inquiries into a driver’s hours of service to ensure that they are not requiring drivers to violate federal regulations to complete a time sensitive delivery. We may even see a reduction in “hot shot” or rush deliveries, which all too often lead to tired drivers and fatal accidents.

Bottled Water Sold at Pennsylvania Stores Recalled Due to Possible E. Coli Contamination

Posted in Community, Legal Updates, Personal Injury

As reported by various local and national news outlets, bottled water sold at several local stores under several different brand names has been recalled due to possible E. Coli contamination. The company, Niagara Bottling, has disclosed that it had a positive indication of E. Coli at one of its spring sources. The water was produced at the company’s Hamburg, PA and Allentown, PA facilities between June 10, 2015 and June 18, 2015. In addition to other stores, the possibly contaminated bottled water was sold at the following local stores:

  • Acme
  • ShopRite
  • Wegman’s
  • 7-11

If you recently purchased bottle water from any of these stores, check the product code stamped on the bottles. The potentially contaminated water will have codes that begin with letter “A” or “F” and will have dates between June 10, 2015 and June 18, 2015. We recommend you discard and do not drink the affected water.

E. Coli is a type of bacteria that comes from human or animal waste. It can cause food poisoning symptoms, such as nausea, vomiting, and diarrhea and, in some at-risk populations like young children and the elderly, can cause life-threatening kidney failure. To date, there have not been any reported illnesses from this bottled water.

If you have any questions concerning this recall, are not sure whether water you purchased may be subject to the recall, or if you believe you may have suffered an illness as a result of drinking the affected water, you may contact Stark & Stark for free information.

Defective Highway Design

Posted in Personal Injury

The causes of motor vehicle accidents are many: negligent drivers, slippery roadways, and sometimes, defective highway design. Many people do not realize that improper highway design may have been the cause of a motor vehicle accident. State and local governments, agencies of state or local governments, or municipalities, can however, be held accountable for creating defective and hazardous roadways. A few common hazards are: insufficient ramps to and from highways; improper or absent road signs, and traffic lights or warnings of dangerous conditions.

When you sue a state agency, such as a state Department of Transportation or a local government or municipality, there are certain notice requirements which must be met in order to preserve your right to file a lawsuit. This means that time is of the essence as notice to the state agency or municipality must be made within a specific period of time to ensure that you have the right to proceed against the government entity in a court of law.

If you have been involved in a motor vehicle accident, even if it is a simple “rear-ender,” you should contact an attorney as soon as possible. They will be able to investigate the possibility that defective highway design or defective highway maintenance contributed to your accident and file a timely notice of your claim.

New York’s Anti-Subrogation Law Regarding ERISA Plans

Posted in Personal Injury

In late February, 2015, the U.S. Supreme Court denied review of the Second Circuit’s Opinion/Decision in Wurtz v. Rollins Co., LLC matter – F.3d –, 2014 W.L. 3746801(2nd Cir. 2014). There was a split between the Second, Third, Fourth and Fifth Circuits.

Wurtz was a class action on behalf of plaintiffs with employer sponsored health insurance programs. Rollins, Oxford Health Plans, and United Health Group were sued. A New York Court found that a New York General Law, specifically 5-335, was too limited in scope and excluded reimbursement and subrogation rights, falling outside of any tort settlement. Subsequently, the New York Legislature enacted a revision to 5-335 and substituted the word “insurer” for the words “benefit provider” to put the law directly under the umbrella of ERISA’s Savings Clause. The clarification is meant to eliminate any confusion as to whether an insured ERISA claim came under the definition of “statutory reimbursement right.”

In July, 2014, the U.S. Court of Appeals reversed the Lower Court’s decision holding that the New York General Law 5-335 was “saved” from preemption. The Supreme Court’s denial of Certiorari supports the Second Circuit’s holding that New York General Law 5-335 is applicable as it relates to a fully insured ERISA plan in the State of New York. This decision does not affect employer sponsored health benefit arrangements, which are funded through the general assets of a company.

Recovering Condominium and Homeowners Association Fees Due Prior to Sheriff’s Sale

Posted in Community Associations

Under Pennsylvania statute, when real estate subject to homeowner’s association assessments or condominium association assessments is sold at sheriff’s sale, the homeowner’s association or condominium association is entitled to recover delinquent assessments/charges accruing in the six (6) months prior to the sheriff’s sale. All other assessments/charges accruing prior to the sheriff’s sale are ordinarily divested through the sheriff’s sale process.

However, under the right combination of circumstances, a condo association or homeowner’s association may be able to recover not only the statutory six (6) months of pre-sheriff-sale indebtedness, but also all other pre-sheriff’s-sale assessments/charges.

First, the real estate in question must have been purchased by a third party who has bid enough at the sheriff’s sale to create a “pool” of available funds to cover (after payment of sheriff’s costs, taxes, and the foreclosing mortgagee’s judgment) both the statutory six (6) months and all other pre-sale indebtedness due the association.

Second, the association or its counsel must file “exceptions” to the proposed sheriff’s distribution of the funds bid by the third party, indicating that after payment of sheriff’s costs and taxes, the foreclosing mortgagee’s judgment, and the statutory six (6) months, there remains enough to pay the remaining pre-sale indebtedness due the association. Provisions of the statutes governing payment of delinquent condominium and homeowners association assessments provide that if enough funds are available, the association may get paid the rest of its pre-sale indebtedness after the payment of sheriff’s costs and taxes, the foreclosing mortgagee’s judgment, and the statutory six (6) months, and ahead of any leftover funds paid to lienholders junior to the foreclosing mortgagee and to the delinquent owner-defendant.

Third, the court must sustain or grant the “exceptions.” If they are uncontested, the odds increase that they are sustained, but it is possible for them to be opposed by a junior lienholder or the owner-defendant…or even the foreclosing mortgagee.

At Stark & Stark, we can help condominium and homeowner’s associations facing sheriff’s sales of real estate to see if their entire pre-sale indebtedness can be paid through the exception to sheriff’s distribution process.

Tips for Attending the Defense Medical Exam

Posted in Personal Injury

Here are a few tips to help assure that you are properly prepared for a defense medical examination.

  1. The exam begins when you drive into the parking lot. You may be watched getting out of your car and walking into the office.
  2. Describe the accident in a general way. (i.e., I was rear ended).
  3. Be prepared to describe what happened to your body at the time of impact. The movement of your body is important for the connection of the impact and your body.
  4. Describe injuries that are consistent with what you told your treating doctors and what your treating doctors have related to the accident.
  5. Describe your pain by frequency and intensity. How often do you experience pain. (i.e. daily; 2-3 times a week). How intense is the pain. Most doctors will ask you based on a 0-10 pain scale. Describe the intensity with how your treating doctor is characterizing your pain level:

Chart

Note your pain may generally be mild or moderate but may become severe with activity.

  1. Describe your limitations. This includes both your limitations(s) in physical movement (i.e. lifting/bending/sitting/standing/sleeping) and limitation to engage in activity (i.e. work/sports/daily living activities).
  2. Don’t try to convince the defense doctor. The defense doctor will likely conclude your pain is not related to the accident.
  3. Avoid absolutes such as never or always.
  4. Watch out for the doctor’s antics. Often a defense doctor will try to suggest you are exaggerating or making up pain complaints. For example, the doctor may lightly touch the injured area hoping you will winch in pain. Often the appropriate answer would be to say that is the place I have pain but that light touch did not hurt me.

This is not at all a comprehensive list. It is best to consult with your legal counsel to ensure that you are fully prepared for a defense medical examination.

Stark & Stark’s Community Associations Group Announces Collaboration with J Brick Consulting, LLC

Posted in Community Associations, Stark News

Stark & Stark’s Community Associations Group has teamed up with Jennifer Brick of Jennifer Brick Consulting, LLC to help further develop business leads, market the group’s services to community association property managers and meet industry decision makers throughout Pennsylvania, New Jersey and Delaware.

Prior to founding J Brick Consulting, LLC, Jennifer Brick served for 14 years as the Business Development and Practice Manager for the Community Association Group at Stark & Stark, before assuming the same position with a different New Jersey law firm. Now a consultant, Ms. Brick partners with her clients on various marketing and business development initiatives including industry introductions, media outreach, lead generation, and public relations.

Ms. Brick said of her return to the firm, “I am thrilled to once again be working alongside Chris Florio and Don Brenner and their extensive legal team helping them drive client development and practice growth across multiple states. I look forward to continuing our collaboration and helping the Stark & Stark team reach their targeted growth goals.”

Nursing Home Abuse

Posted in Personal Injury

We have all heard stories about elderly patients being abused in nursing homes.  Unfortunately, it is a constant worry as many of us plan for our parents’ or loved ones’ future once they can no longer care for themselves at home.  Knowing the signs of nursing home abuse and contacting a lawyer who specializes in this area of the law are important steps in protecting your loved one.

The most obvious form of abuse is physical abuse.  Look for bruises, skin tears, or other signs of injury when you visit your loved one in a nursing home.

Emotional abuse is harder to identify.  Many elderly are affected by confusion and dementia but repeated complaints about shouting or threatening language, ridicule and humiliation, or blaming the resident for things that are beyond their control should be investigated.  Equally damaging, it is emotionally abusive if staff ignores the resident or the resident is placed in extended isolation.  Talk to your love one and talk to the staff, especially to the nursing supervisor or the resident’s physician, if you suspect this form of more subtle abuse.

Unfortunately, financial fraud and exploitation are also frequent forms of abuse in institutional settings.  A caregiver who is an abuser may use his or her position of authority and trust to extort money or to simply steal from a resident, or help themselves to the resident’s credit card. Needless to say, the resident should have very little cash with them in the nursing home and all credit cards should be left at home or sent home with a relative. Beware of any caregiver who signs documents on behalf of your loved one.

Finally, sexual abuse may be physical or non-physical.  It may be perpetrated by another visitor or by a caregiver.  Listen carefully, if your loved one is complaining about someone who is always in his or her room, and making inappropriate comments or advances.

PA Superior Court Affirms- Jack Frost Ski Area Can’t Be Sued in Philadelphia

Posted in Legal Updates

In a recent non-precedential opinion in the case of Gordon v. JFBB Ski Areas, Inc., No. 1454 EDA 2014 (Pa. Super. April 28, 2014), the Superior Court of Pennsylvania affirmed a Philadelphia County ruling ordering that the case be transferred to Carbon County based upon preliminary objections alleging improper venue.

In this case, Plaintiffs had filed a complaint in Philadelphia County against multiple defendants, including Jack Frost Ski Area, seeking recovery for injuries sustained while at the Carbon County skiing destination.  Plaintiffs alleged that venue was proper pursuant to Pa.R.C.P. 2179 as defendants regularly conduct business in Philadelphia County.  Defendants filed preliminary objections seeking to have the case transferred to Carbon County alleging that their business activity in Philadelphia was not sufficient to sustain venue there.  After reviewing evidence on this issue, the Philadelphia Court agreed and transferred the case to Carbon County.

The evidence submitted indicated that Jack Frost’s lift tickets can be purchased either over the internet or at the facility in Carbon County.  While all transactions could not be tracked, roughly 4.7% of all lift tickets were purchased by residents of Philadelphia.  The evidence further indicated that Jack Frost conducts significant advertising activities and promotional events in Philadelphia.  Nonetheless, the Superior Court affirmed the ruling of the trial court.

This ruling is a bit of surprise in light of some other recent Superior Court decisions holding that a corporate defendant deriving as little as 2% of their revenue from Philadelphia County was sufficient to establish venue under Pa.R.C.P. 2179.  See Lugo v. Farmers Pride, Inc., 967 A.2d 963, 971 (Pa. Super. 2009); Zampana-Barry v. Donaghue, 921 A.2d 500 (Pa. Super. 2007).  It would appear that the Gordon Court focused on the fact that no actual lift ticket sales occurred in Philadelphia County.  The Court emphasized the fact that tickets purchased through the Jack Frost website, which is administered by a California company, involves transferring money through a third-party bank.  All other tickets were sold at the mountain itself in Carbon County.  The Court further determined that all Philadelphia-based promotional events and advertising were incidental to Jack Frost’s business and insufficient to establish venue.