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Distracted Driving Awareness Month

April is National Distracted Driving Awareness Month to alert everyone of the dangers of driving while texting.  The efforts are part of a campaign created by the National Highway Traffic Safety Administration to curb distracted driving behaviors nationwide.

National advertising will be seen throughout the country by the NHTSA that will also promote their, “U Drive. U Text. U Pay,” awareness program.

As we all know, younger drivers are some of the biggest offenders of texting while driving.  Most teens claim that a phone app to prevent texting and driving would help them and their friends stop doing it.

AT&T has launched the AT&T DriveMode mobile app that can automatically send a customizable reply to incoming messages when the vehicle starts moving 25 miles per hour.  The auto-reply message is similar to an “out-of-office alert.” It can reply to texts, emails and calls explaining the intended recipient is driving and can’t respond.

When the vehicle slows to less than 25 miles per hour for five minutes, the app turns off and the user can view the calls.  DriveMode is free and available to AT&T, Android and Blackberry users now.

Fitbit Force Acitity Band Cases Being Accepted

As many of you may know, Stark & Stark has been accepting cases in regards to the Fitbit Force Activity Band. Click here to read a very interesting article about the issue. If you have any questions or have been injured by this product, please contact Stark & Stark’s Fitbit Force Attorneys at 1-800-535-3425 or online at starkinjurygroup.com

 

Proposed FDA Rule Could be Troublesome for Brewers

For many years, farmers have purchased brewers’ leftover grains to use as animal feed. This relationship is beneficial for both the environment and the parties – it allows the farmers to feed their animals at a reasonable low cost, and it gives breweries a way to dispose of their used grain. It’s a win-win for everyone.

Enter a newly proposed rule by the Food and Drug Administration (FDA) that could completely disrupt farmers’ and brewers’ harmonious relationship. On October 29, 2013, the FDA proposed a new rule to “Establish Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventative Controls for Food and Animals.” Under the proposed rule, breweries would have to adhere to the same new Current Good Manufacturing Practices (CGMP) that animal food manufacturers are required to follow, and which address the manufacturing, processing, packing and handling of animal food. The proposed CGMPs require covered facilities to maintain a food safety plan, perform hazard analyses, institute preventative controls for mitigation of hazards, and monitor controls, verify that such controls are effective, take corrective action to fix ineffective controls and maintain records documenting their corrective actions. With this new rule, the FDA hopes to reduce health risks to animals and humans by better regulating the handling of animal food.

So what does this mean for brewers? In order to continue selling grain to farmers, brewers would have to adhere to the new FDA regulations, and very likely increase the cost of the grain and/or their beer being sold. If too costly for a brewery, this could mean the end of sales to farmers all together and the disposal of the used grain without the ability to put it to another beneficial use.

For more information on Stark & Stark’s Beer & Spirits group click here.

Tractor Trailer Accident in Tamaqua, Pennsylvania

Stark & Stark is representing individuals from the tractor trailer crash that occurred in Tamaqua, Pennsylvania.  The driver of a tractor-trailer collided with multiple vehicles as he drove through Tamaqua.

Borough police said Levi Horst, New Holland, was traveling south on state Route 309/North Railroad Street at about 2:40 p.m. when his truck crashed into the rear of a vehicle driven by Cindy Hutta, of Coaldale, in the 400 block of North Railroad Street, disabling it.  As Horst continued south, his rig hit a parked car that was pushed up onto a sidewalk and almost into a home at 409 N. Railroad Street, police said, and then hit another vehicle from behind twice. That vehicle, driven by Mark Zimmerman, of Lansford, was hit first in the 300 block of North Railroad Street and the second time in the 100 block of North Railroad.

A fourth vehicle - a pickup truck driven by Kirk Oldt, of Tamaqua - then was hit on the passenger side, damaging the right rear and mirror, police said. Oldt told police he was able to move his truck and followed the tractor-trailer south, and said he didn't see it hit any more vehicles. 

When the tractor-trailer approached the Five Points intersection, however, it entered the left-turn lane and went through a steady red light, continuing south, and crashed into the rear of a vehicle driven by Kathleen Winn, of Tamaqua, police said. The impact disabled the tractor-trailer and caused a chain-reaction crash.

Police said Winn's vehicle hit the rear of a pickup truck driven by James Murphy, of Tamaqua, which in turn hit the rear of a vehicle driven by Jodi Olesh, of Coaldale. Police stated Winn was taken by ambulance to a helipad at Tamaqua Area High School and flown to St. Luke's hospital in Bethlehem.

Mark Zimmerman and his passenger, Cynthia Zimmerman, drove themselves to St. Luke's Miners Campus in Coaldale for neck pain after the crash, police said, while Olesh drove herself to the same hospital for back pain. Horst was taken to St. Luke's in Coaldale for treatment of a head injury and it is suspected he suffered a medical emergency while driving, police said. 

Attorneys at Stark & Stark are actively investigating this matter.  If any individuals have additional information, please contact us at 1-800-535-3425 or online at injury.stark-stark.com.

Stark & Stark Shareholder to Speak in Upcoming CLE Seminar

Stark & Stark is pleased to announce that Shareholder Brian H. Smith, member of the firm’s Bankruptcy & Creditor's Rights Group, will be a featured speaker at an upcoming Rossdale CLE telephonic seminar titled, “Foreclosure Law & MERS.” The seminar will be held on Wednesday, April 16, 2014, from 12:00 PM – 1:30 PM and will be broadcast live before a large, nationwide, audience of attorneys, paralegals, and legal professionals.

This seminar will discuss best practices and tactics to represent lenders, banks, homeowners, debtors, and institutional clients, in addition to  foreclosure defense and tactics to represent homeowners. Rossdale CLE is a national leader in attorney education.

For more information, or to register to attend, please click here.

Be Careful of Confidentiality Clauses - Facebook Post Costs Family $80,000!

A Facebook post cost one Florida family $80,000, according to a recent report by the Miami Herald.  An appellate court in Florida recently ruled that the confidentiality clause in a settlement was violated after the plaintiff’s daughter posted about it on Facebook.

The plaintiff had brought a wrongful termination lawsuit against a prep school where he used to work.  The parties agreed to a settlement which included a confidentiality clause.  However, the plaintiff told his daughter, a former student at the school, about the settlement.  The plaintiff’s daughter then posted about the settlement on Facebook, leading the court to find that the confidentiality clause had been breached.  As a result, the appellate court found that the defendant school did not have to pay $80,000 of the settlement to the plaintiff!

Although the plaintiff may still have the option of appealing this decision, it should serve as a warning to all.  Be careful if your settlement contains a confidentiality clause!  Be careful about what you post on Facebook or other social media sites.  Most importantly, talk to your lawyer and make sure that you understand the terms of any settlement agreement, and that you abide by those terms.

Pennsylvania Appellate Court Clarifies Right to Lien for Work and Materials Incidental to Erection or Construction

This blog is part of an ongoing series discussing the Pennsylvania Mechanics’ Lien Law. For more information on Mechanics' Liens in Pennsylvania, click here.

For decades in Pennsylvania, there was a lack of clarity as to when Mechanics’ Lien Claim rights attached to a project where the work and materials provided were for the demolition, removal of improvements, excavation, grading and the like. The text of the Pennsylvania Mechanics’ Lien Law of 1963 is clear that lien rights attach for such work and materials furnished “incidental to the erection, construction, alteration or repair” of a permanent structure. What was unclear was whether or not lien rights would attach to a project where such work was performed and materials furnished as part of the contemplated erection or construction of a permanent structure that is never actually erected or constructed.  For a multitude of reasons, a construction project may be initiated but fail to progress through the initiation of construction of the structure, including the failure of construction financing and poor financial planning on the part of the owner or prime contractor. In such cases, a contractor or subcontractor may have already performed demolition, excavation, or site work that in and of itself does not constitute a permanent structure. In B.N. Excavating, Inc. v. PBC Hollow-A, L.P., 2013 Pa.Super. 120 (2013), the Pennsylvania Superior Court held that where excavation work is performed incidental to the planned erection or construction of a permanent structure, lien rights attach for the excavation work even if the structure is never erected. Therefore, where excavation and groundwork occurs that is connected to a planned structure, and not independent of a structure, lien rights will attach. This holding is welcome news for contractors involved in demolition, hauling, excavation, grading, and paving, as it makes clear that lien rights for such work is not dependent upon the successful progress of a project after the contractor has completed its work.

Social Security Expands Compassionate Allowance Conditions

The Compassionate Allowance program expedites disability decisions for persons with the most serious, and often fatal, conditions to ensure that these persons receive their disability decisions quickly, rather than the months or years it takes for most disability claims to be decided upon.   The Compassionate Allowance program identifies claims where the applicant’s disease or condition clearly meets Social Security’s standard for disability.  In January of this year, Social Security added 25 new Compassionate Allowances conditions, including 12 cancers, bring the total number of conditions to 225.  The new conditions also include serious disorders of the digestive, neurological, immune and multiple body systems.  To date, almost 200,000 people with severe disabilities have been approved through the Compassionate Allowance fast-track program for evaluating claims.

To see a complete list of Compassionate Allowance disabilities, visit the Social Security website here

Pennsylvania Intermediate Appellate Court Reverses Long-Standing Holding Regarding Mechanics' Lien Claims

This blog is part of an ongoing series discussing the Pennsylvania Mechanics’ Lien Law. For more information on Mechanics' Liens in Pennsylvania, click here.

For decades, Mechanics Lien Claims filed under the Pennsylvania Mechanics’ Lien Law of 1963 were reviewed scrupulously by the courts. Because Mechanics’ Lien Claims were considered “creatures of statute” in derogation of the common law, and constituting a special remedy for a unique and discrete class of creditors not granted to others, Lien Claims were construed strictly and absolute adherence to the requisites of the statute was required to withstand efforts to strike off the Lien Claim. If even relatively minor mistakes were made in preparing, giving the appropriate notices of, filing, and serving the Lien Claim, Courts were likely to strike off a Lien Claim in its entirety. This view was distilled in the Superior Court’s opinion in Sampson-Miller Associated Cos. V. Landmark Realty Co., 224 Pa.Super. 25 (1973). Rarely would preliminary objections or a motion be made to a Court seeking to strike off a lien claim that did not quote directly from the Sampson-Miller opinion, emphasizing that the Court was bound to “strictly construe” the statute and dismiss Lien Claims that did not comply with the Statute in any way. So ubiquitous was the language of Sampson-Miller that it constituted common knowledge even among attorneys who only casually practiced in the area of construction law and litigation.

In 2012, the Superior Court upended Sampson-Miller, and with it owners’ most common strategy to avoid filed Lien Claims. In Bricklayers of Western Pennsylvania Combined Funds v. Scott’s Development  Co., 2012 Pa.Super. 4 (2012), the Superior Court expressly reversed its earlier holding in Sampson-Miller. In Bricklayers, the trustees of an employee benefit fund for a trade Union sought to file a Lien Claim as a “subcontractor”  for unpaid contributions to employee benefit funds arising from work performed by the Union’s workers for a general contractor pursuant to collective bargaining agreements with the general contractor. The Union trustees argued that, contrary to the holding of Sampson-Miller, the Mechanics’ Lien Statute should be liberally construed, and that the Union by its trustees should not be denied standing to file a Lien Claim as a Subcontractor due to an overly technical and narrow construction of the law. The Union’s trustees argued that a liberal construction of the definition of “subcontractor” was warranted to ensure its prepayment of labor for the benefit of the property. The Superior Court agreed, stating that the Mechanics’ Lien Law, and the definition of “subcontractor” in particular must be “liberally construed to effect [its] objects and to promote justice.”

Although the Superior Court set forth a liberal construction standard, the Court cautioned that “a strict compliance standard may be used to determine certain issues of notice and/or service” when assessing the striking off of Lien Claims. Accordingly, some limited “strict compliance” grounds may remain to strike off a Lien Claim, but no specific reported cases have elaborated on this to date. It should be noted that the Superior Court’s Order and Opinion in Bricklayers has been appealed to the Pennsylvania Supreme Court, and the issue of whether liberal construction of the law is proper will be reviewed by Pennsylvania’s highest Court. Until the Pennsylvania Supreme Court renders its opinion, the law of Lien Claims will remain uncertain, but the liberal construction standard will be applied by trial courts in the meantime.

What is Guardianship in Pennsylvania?

The age of majority in Pennsylvania is 18.  This means that at age 18, not only can an individual legally vote and drink alcohol, he or she has the right to make legally binding decisions on his or her own behalf.  This is true regardless of whether or not an individual has a disability.  However, if a person is unable to make decisions for him or herself as a result of an injury or for any other reason, the court may be petitioned to judge the person to be “incapacitated” and appoint a guardian to make decisions for that person.  Guardianship is usually sought when a person with limited or impaired intellectual functioning needs a guardian to protect the incapacitated person’s well-being or to file a lawsuit on his behalf.  The law of Pennsylvania defines an incapacitated person as, an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.

Once a person has been adjudicated incapacitated, a court may appoint a “guardian of the person” and/or a “guardian of the estate” for an incapacitated person who lives in Pennsylvania and/or an incapacitated person who has property in Pennsylvania. Any qualified individual, corporate fiduciary, non-profit corporation or county agency may serve as guardian, with the court’s approval.  Often the appointed guardian is a relative of the incapacitated person, however, when no other person is willing or qualified to serve, a guardian support agency may be appointed to the court. The guardian must not have interests that conflict with the incapacitated person.The application to appoint a guardian is referred to as a Petition, which must be filed with the clerk for the Orphan’s Court in the county where the incapacitated person resides. A judge will review the Petition at a hearing where testimony must be presented from an expert who is qualified in evaluating individuals with incapacities.

Many attorneys in Pennsylvania handle guardianship matters before the Orphan’s Courts of the Commonwealth.  These attorneys can guide the Petitioner through the process which, although not complicated, may seem overwhelming to a non-lawyer. Please contract Stark & Stark in regards to any questions you may have.