Pennsylvania Law Monitor : Pennsylvania Lawyer & Attorney : Stark & Stark Law Firm : Yardley, Philadelphia, New York, New Jersey

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

Many Contractors may have become familiar with the recent Amendments to the Pennsylvania Mechanics’ Lien Law which became effective in January of 2007.  Those Amendments were the first Amendments to the Law since the Law’s adoption in 1963, and reflected an effort on the part of the Pennsylvania Legislature to re-assert the Contractors’ and Subcontractors’ right to file Mechanics’ Liens for non-payment by restricting effective Up-front Lien Waivers and providing a bonding procedure to ensure payment where Up-front Waivers were required.  For residential projects, Up-front Mechanics’ Lien Waivers were permitted only for projects for which the dollar value of the entire project was less than $1,000,000.00.  This dollar figure threshold seems to have created more questions than it answered, and created a good deal of ambiguity for Owners, Contractors, and Subcontractors in practice.

In response, the Pennsylvania Legislature has just amended its prior amendments to replace the million dollar threshold with a statutory test for a residential project for which Up-front Lien Waivers may be obtained.  Effective October 10, 2009, Up-front Mechanics’ Lien Waivers can be obtained for residential projects upon which will be built a residential structure not more than three stories in height, exclusive of any basement level.   Therefore, it would seem that most single family style residential projects can be the subject of Up-front Lien Waivers, increasing the chance that Contractors and Subcontractors will experience payment problems for work performed on residential projects.

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An Owner's Manual For Your Divorce is a 10 part podcast series presented by Joseph D. Visco, member of Stark & Stark's Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The fifth installment will focus on pretrial motions and applications. The podcast will address the importance of pretrial proceedings and the most common types of pretrial motions which include: temporary child support, alimony arrangements, custody arrangements, allocation of bills and expenses, counsel fees or litigation expenses and insurance coverage. You can download a copy of the installment notes here. (PDF)

You can download the fifth installment here. (2 MB)
 

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I recently recovered a significant settlement for an individual who was injured while riding his motorcycle in Bucks County, Pennsylvania. The middle-aged biker was out for a nice Sunday ride when another car pulled out in front of him. The biker did not have enough time to lay down his bike and instead struck the hood of the car. After flying through the air, the biker landed on his back. Fortunately for the biker he was wearing a helmet and protective clothing. Nonetheless, he suffered serious injuries to his back.

Speed, a sense of independence, and the open air are just a few of the reasons many people ride motorcycles. Unfortunately, drivers of automobiles often fail to notice motorcycles. Their focus and attention are on other cars. Consequently, motorcycle accidents often involve a combination of inattentive motorists and hard-to-see motorcycles. Motorcycle accidents are likely to result in major injuries, including head injuries, spinal cord injuries and other serious injuries, often times resulting in death.

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The Commonwealth and its political subdivisions or agencies, like private business entities, often enters contracts for goods and services with third parties.  As is sometimes the case with commercial transactions, the Commonwealth or its subdivisions may fail to honor its contractual obligations, including the obligation to pay for goods and services that it orders and receives.  The question then arises from the perspective of persons or entities who have suffered from the Commonwealth’s breach of its contractual obligations – how does one enforce a contract against the state government?

Before answering this question, one must make a brief reference to the English Common Law tradition out of which the American legal system arose, and which existed in the Commonwealth of Pennsylvania dating from before Independence and ratification of the United States Constitution.  The Common Law tradition contained a doctrine commonly referred to as “Sovereign Immunity,” or “Crown Immunity,” which held that “the king (or the State) can do no wrong,” and therefore cannot be sued for a legal wrong.  As archaic as this sounds to the modern businessperson, it remains the rule that the Commonwealth cannot commit a legal wrong, and therefore cannot be sued.  As one might have guessed, however, such a broad immunity to commit what would be legal wrongs if done by private parties carries with it a significant disadvantage in the modern era, when the Commonwealth’s activities require it to transact business with private business entities and individuals.  Not many would willingly provide goods and services to the Commonwealth in exchange for the promise of payment when there exists no means to enforce the payment term – therefore, the Commonwealth’s activities would be grossly limited by what initially seemed like a tremendous advantage. 

In large part in order to induce these private entities and individuals to contract with the Commonwealth and its subdivisions, the General Assembly has carved out certain exceptions to the Commonwealth’s Sovereign Immunity.  For claims by businesses or individuals where the Commonwealth has breached a contractual duty and money damages are sought, the General Assembly has made an exception to Sovereign Immunity and created a forum for the bringing of those claims called the “Commonwealth Board of Claims.”  Though the creation of the Board of Claims would seem to welcome claims against the Commonwealth, practice before the Board of Claims is fraught with procedural traps designed to block claims against the Commonwealth, including filing deadlines which are comparatively very short when compared to normal commercial litigation between private parties.

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Henry E. Van Blunk, Shareholder in Stark & Stark's Business & Corporate Group, and Thomas D. Giachetti, Chair of Stark & Stark's Securities Group, authored the article, Forgivable Loans From Wirehouses or Captive Broker-Dealer Firms, as part of the Charles Schawb report, A Case For Starting or Joining a Registered Investment Advisory (RIA) Firm.

The report offers information for investment professionals and explores some of the options available to advisors who may be considering changing from their current broker-dealer environment. Though a forgivable loan from a wirehouse or independent broker-dealer firm can look attractive, in their article, Mr. Van Blunk and Mr. Giachetti discuss the potential downsides of forgivable loans advisors may face when moving to another large financial institution.

You can read the full article online here. (PDF)
 

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SSI, or Supplemental Security Income is not the same benefit as  social security disability.  SSI was specifically created to pay a monthly benefit to people with limited income and resources who are disabled, blind, or age 65 or older.  Blind or disabled children can also get SSI benefits.  Many people who are eligible for SSI may also be entitled to receive Social Security Disability Benefits (SSD).  In fact, the application for SSI is also an application for Social Security benefits.  SSI benefits are administered by the social security administration.

Unlike social security benefits, SSI benefits are not based on your work history or a family member’s work history.  These benefits are financed by general funds of the U.S. Treasury, in other words by personal, corporate or other taxes.  SSI benefits are not paid for by your contributions to social security through your employer so there is no requirement that you “pay in to the system” to qualify for this benefit.    In most states a person who receives SSI can also get Medicaid for health care coverage.  SSI beneficiaries are also usually eligible for food stamps.

If you think you qualify for SSI benefits you should contact your local social security office or an attorney who specializes in social security law.

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Most people know that they should change the oil in their car every 3,000 miles. Most people also know that if they have their car for a long time that they will need to have a mechanic review it on a regular basis to determine if the car needs new brakes, tires, filters, etc. What most people don’t know is that estate planning documents (wills, powers of attorney, etc.) need regular “checkups” and maintenance. So how often should your estate planning documents be reviewed? 

To answer the question above, you need to first consider the goal of your estate planning documents. Your estate plan is a detailed summary of your desires, your assets and how you best want to use your desires and assets to protect your loved ones in the future and minimize any tax consequences your loved ones may face upon receipt of your assets. Of course, you estate planning goals change over time. The same will you had drafted when you were first married will most likely not accomplish you estate planning goals if you now have children or divorced your spouse.

So, how do you know when it is appropriate to review and potentially update your estate plan? Generally, any changes in your personal, financial, family or health situation, as well as changes in tax laws that may affect your estate plan are the best times to review and update your plan. In addition, as a general rule, it is a good idea to review your estate plan at least once a year. As you are reviewing your estate plan, keep in mind the changes that have occurred in your personal, family, financial, family or health situation, and make note of those changes (do not write on the actual documents!). Once you have a list of possible changes to your estate planning documents, contact an estate planning professional that can assist you in updating the documents; often, changes can be made by simply attaching an amendment to your current estate planning documents.

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