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

Property owners have an obligation to keep their premises clear of snow and ice.  Injuries from slip and falls due to snow and ice can often be severe.  These kinds of accidents can result in serious injuries.  Also, certain injuries may be more debilitating to one person than another due to the person’s daily life requirements, activities and job.  What makes them worse is that they are easily preventable by proper snow and ice clearing, and/or additional sanding and salting.  Snow and ice hazards are almost always due to negligence on the part of property owners or those responsible for keeping up the property.

Responsibility/Liability:   
Landlords, property owners and property managers have a responsibility to keep their premises safe; and when they fail to do so, they may be liable for injuries and damages.  If you are hurt, you should have your rights protected by an experienced slip and fall attorney who knows how to obtain a fair settlement for you.

Compensation:  
Damages that you may recover include: hospital and medical expenses, past and future lost wages, past and future permanent physical disability, such as a limp, scars, loss of a limb, emotional distress, such as depression and anxiety; grief and emotional suffering caused by the death of a loved one; loss of love and companionship caused by the death of a loved one; damage or destruction of property; physical pain and suffering; loss of enjoyment of life.

Advice:
If you are injured in a snow or ice slip and fall accident, it is important to preserve the evidence as soon as possible.  Take a picture with your cellphone or any camera as soon as possible because the dangerous conditions that caused the accident can easily be cleaned up or changed or may quickly melt away forever.  You should make detailed notes, especially about any conditions that won’t clearly be shown in the pictures.  Your goal is to record and preserve the scene of the accident and all the surrounding areas as completely as possible. 

We recently settled a slip and fall case for a significant amount of money.  The key to the settlement was we had professional pictures taken of the dangerous condition within hours of the person’s fall.  The property owner could not deny that the dangerous condition existed.

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A lot of attention and publicity is being generated around a new approach to divorce - the Collaborative Divorce.  So what it is it, how is it different from “regular” divorces, and, most importantly, is it really better?

First of all, Collaborative Divorce is both an approach to, and a process for, Divorce.  Each party retains their own lawyer who, as in traditional divorce cases, advocate on their client’s behalf.  The attorneys aide in focusing the dispute to the legal issues and reaching a result consistent with what the parties would have obtained had they proceeded to court - except the Collaborative Process can do in weeks what it takes the court months to accomplish.  There are no formal filings thus no unnecessary legal fees, no waiting for court dates and no down time waiting in court for your case to be called.  This translates into less waste and minimizes billable hours and court costs. 

The Collaborative process typically involves numerous meetings with both the parties and the attorneys present.  These “four way” meetings allow the parties to prioritize the issues - addressing the most urgent, such as support, custody, the sale of a house or assets - before moving on to issues that can wait, such as dividing retirement accounts or having assets appraised.   Four ways rarely happens in a typical litigated divorce, and if they do it usually only happens at the very end of the litigation when the parties are desperately trying to settle the case the day before trial.  Choosing the Collaborative process frees the parties from being bogged down with court procedure, overburdened court calendars and layers of bureaucracy.  Generally most Collaborative cases dispense with the need for the parties to ever even step foot in a courtroom.

At the first meeting the parties and their lawyers enter into a “Participation Agreement” that sets forth the commitments in the Collaborative Divorce including the agreement that all issues will be settled prior to a divorce complaint ever being filed.  Once both parties have retained their Collaborative attorneys the lawyers then set the agenda for the series of four ways.  The lawyers will commit to managing the conflict, developing the legal issues and controlling the emotional issues.  Each party’s attorney is an advocate for that party.  Collaborative attorney are not mediators.  They advocate for their clients but with the goal of obtaining a result comparable to what a court would award.

Often times it is necessary to reach out to a detached and neutral expert - such as a custody evaluator, business appraiser, certified divorce planner, or financial or tax expert to resolve certain disputes or evaluate assets or develop a plan to preserve as much of the estate as possible.  This is comparable to the use of experts in traditional divorce without the costs associated to have them testify at trial.

Ultimately, the goal is to prepare a formal legally binding agreement signed by the parties which resolves all issues related to property distribution, support, child custody and other issues pertaining to the divorce.  The collaborative process is successful in obtaining such an agreement in about 97% of the cases.  In the 3% where a settlement is not reached - the collaborative attorneys must terminate their representation of the parties. 

What are the benefits? 

• Cost - Attorneys fees are generally half of what a typical litigated divorce may cost you.  Why? There will be no formal pleadings drafted, no waiting in court, no government bureaucracy to navigate.  The four way meetings save everyone time while the attorneys focus the parties on the legal issues which need to be resolved.
• Time - Skilled collaborative attorneys can resolve in one session what it may take a court months to resolve.
• Outcome - Your voice is heard.  The parties control the outcome - not a judge who may only hear a days worth of facts. 
• Privacy - With no public documents being filed the whole divorce, and the private facts underlying the divorce, remain private.  No prying eyes. No embarrassing details.        
• Satisfaction - Parties who have undergone the collaborative process report a greater feeling satisfaction in the end result and greater participation in the process.
•  Dignity - The collaborative process has proven to minimize hostility and allow the parties to “turn the page” on a new chapter in their life while promoting healthy communication between the parties - an invaluable benefit if children are involved.

The attraction to the Collaborative Process is not just for the parties who are struggling financially and want to save on legal fees - the benefits apply to all size divorces.  Madonna and Guy Ritchie recently committed to the Collaborative process and successfully (and quickly and quietly) obtained their divorce.

To begin the Collaborative process you need to meet with a Collaborative Attorney.  The attorney should be a member of an accredited organization - such as the International Academy of Collaborative Professionals.  You should then look for an attorney who is a member of a Collaborative practice group in the county where the divorce would likely be finalized.  As with the selection of any attorney - do your homework.  Review the attorney’s credentials.  Make sure you select an attorney who concentrates their practice in the areas of Divorce and Family law.  The selection of your attorney may be the single most important decision in your divorce.

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Most people familiar with the construction industry are aware that Mediation and Arbitration provisions are ubiquitous in construction contracts.  Industry standard contract forms – for example, those published by the AIA (American Institute of Architects) – very often contain Mediation and binding Arbitration provisions which provide that all disputes arising under the contract must be submitted to Mediation and or Arbitration for final adjudication.  The vast majority of these provisions reference the American Arbitration Association and the AAA’s Construction Industry Arbitration Rules and Mediation Procedures, making the AAA the most common forum for the filing of Arbitration demands in construction disputes.

The AAA’s dominance in Arbitration, particularly in the construction industry, led to what many considered exorbitant filing fees required at the time of an Arbitration Demand.  These fees were considered particularly high when viewed in comparison with the filing fees of Courts, and the fees increase in steps with the amount of the claim demand.  Many considered these fees contrary to the stated purpose of Mediation and Arbitration – to lower the costs involved in resolving claims and disputes. 

In response to the grumbling over AAA filing fees, and likely in view of the economic climate, the AAA has implemented a pilot program providing a “Flexible Fee Schedule” effective June 1, 2009 through May 30, 2010.  In sum, the Arbitration Demand is made, and deemed filed, upon payment of an “initial fee,” which is comparatively low – about $1,000.00 for most cases, at which time a ninety (90) day period begins to run during which the parties can confer and chose an Arbitrator or Arbitrators by agreement.  If the parties are successful in conferring and choosing an Arbitrator before the ninety days expires and before AAA circulates a list of Arbitrators, the parties receive a 50% discount applied against the “proceed fee,” (also progressively more expensive as the amount of the claim increases) which is due at the expiration of the ninety days. 

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Previously I wrote an article discussing how often you should review your estate plan. To further assist you in your estate planning, below is a list of some (but not all) of the events that should trigger a review of your estate plan:

1. Marriage, divorce or death of your spouse.
2. Birth of a child or grandchild.
3. Your children becoming financially independent.
4. A new job or job promotion.
5. A dramatic increase or decrease in your wealth.
6. After starting a new business.
7. Retirement.
8. After the purchase of life insurance.
9. After moving to a different state (your estate plan should be reviewed by an attorney licensed to practice in that state).
10. Prior to a decision to make a large gift to charity.
11.  An increase in the likelihood that you may be subject to litigation where some or all of your assets may be at stake.
12. After the purchase of new property.

As set forth in my prior article, even though none of the above events may have happened to you in any given year, it is my recommendation that you review your estate plan once a year to ensure that it continues to conform to your estate planning goals, as estate planning goals change from year to year.

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The Pennsylvania Uniform Fraudulent Transfers Act, (PUFTA) 12 Pa.C.S.A. § 5101 et seq., grants a statutory remedy to creditors where a debtor has acted to hinder his creditors and identifies several factors for scrutinizing transfers as fraudulent to creditors.  Where a transfer has been proven to be fraudulent as to a debtor’s creditors, remedies available to a creditor include voiding the fraudulent transfer, attaching the transferred property, injunctions against the debtor’s future disposition of assets, and Court appointment of a receiver to take charge of fraudulently transferred assets.
 

The statutory language defines a fraudulent transfer as a transfer made by a debtor “with actual intent to hinder, delay or defraud,” or a transfer made by a debtor  “without receiving reasonably equivalent value in exchange for the transfer or obligation.”  In assessing information to determine the efficacy of pursuing the collection of a debt where the debtor makes representations that he is insolvent and unable to pay the debt, it is important that the creditor diligently pursue certain information regarding the debtor’s transfer of assets and property to establish that the debtor has acted with “intent to hinder, delay or defraud” one or many creditors.
 

The most common kinds of fraudulent transfers seen in collection efforts are sham “paper transfers;”  transfers in which the debtor attempts to transfer legal title to property or assets while retaining the use and enjoyment of the property or assets.  In the context of corporate debtors, often the transfer of property or assets will be from the corporation to an “insider” for less than fair market value, yielding an undercapitalized corporation without sufficient assets and cash to satisfy a debt or judgment.  These sham transactions are particularly common where a corporation engages in a business that is cyclical and on the downslide of a cycle – the corporate “insiders” will squeeze substantially all of the income and assets from a corporation when business slows, leaving the corporation’s suppliers and other debtors with an insolvent, empty shell corporation that cannot satisfy its debts.  
 

Take, for instance, a situation in which a debtor corporation is threatened to be sued or sued for a substantial debt, and the corporation subsequently sells corporate assets or property to a corporate shareholder, board member, or officer at a “discount” of the property or asset’s fair market value – if the debtor then secures a judgment against the corporation, the sale of the corporation’s assets to a corporate insider at a “discount” may be shown to have been a fraudulent transfer.
 

Another example of a fraudulent transfer often seen in collections is the popularly believed notion that a debtor can escape a financial obligation by “putting property in someone else’s name,”  - most often a spouse or other family member - while retaining use and enjoyment of the assets or property.  For example, if an individual debtor with a money judgment against him engages in a sham sale of his car to his daughter, but no funds exchange hands or a nominal amount changes hands, and the debtor continues to use the car as if it was his own, the sham sale can most likely be avoided, and the car attached as property of a debtor pursuant to a money judgment.

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