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

Halloween is this weekend and, hopefully, we will all have a fun, safe time.  Here are some common sense safety tips that we should all follow:

1. Be sure that your children know how to cross the street properly.  They should always look both ways before crossing the street, and they should only cross at corners or crosswalks.  If you have more than one child, they should hold hands when crossing.  The older children should look out for their younger siblings.
2. Children should carry flashlights to avoid tripping in the dark.
3. Make sure your childs’ costume will not be a tripping hazard.   Make sure robes and capes are at an appropriate length.  If they are wearing a mask of any kind, make sure that the eye holes are large enough so they can easily see.
4. Consider bright and/or reflective costumes so that drivers will be able to see them easily.
5. Make sure that the outfits are fire-proof or treated with fire retardant.
6. Make sure that if your children are carrying any props, that they are safe.  Look for sharp edges, pointy edges; consider weight and height. 
7. At least one adult should walk around with the kids to keep an eye on everything.
8. If your older children are trick-or-treating alone, make sure you know what neighborhoods they will be visiting.  Have them take a cellphone and have a check-in/communication plan.   
9. Set a time that you want your children to be home.
10. Remind your children that they should not get into strangers’ cars or go into the homes of strangers.

Halloween should be a fun, safe, and happy time for everyone. 

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Limited tort is Pennsylvania's version of the "verbal threshold." The Pennsylvania Motor Vehicle Financial Responsibility Act requires insurance companies to give the insured the option of selecting "Limited Tort" or "Full Tort," with the full tort option being only slightly more expensive than the limited tort option. If you select limited tort, you will not be able to sue for pain and suffering unless you sustain a serious or permanent injury, which has been defined by the Pennsylvania Courts as a "serious impairment of a bodily function." That definition is vague, but does not typically include soft tissue injuries such as a sprained neck or back or even a broken bone that healed properly. Although limited tort is touted by auto-insurance companies as a way for an insured to reduce auto-insurance premiums, the limited tort option severely reduces the insured's ability to receive compensation for injury while only marginally reducing the premium expense.

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For most people, there are many uncertainties associated with the creation of a Will. Deciding if you need a Will and eventually preparing one can raise a lot of questions and if left unanswered, can also lead to problems in the future. Below are a few of the most common questions associated with creating a Will:

1.  Should I have a Will?  The simple answer is yes.  All persons over the age of majority should have a Will.  If you fail to have a Will at your death, the Commonwealth, according to statute, will determine who your beneficiaries are.

2.  What does a Will actually do?  A Will provides for the disposition of your property.  Your executor (the person named in your Will to handle the distribution of your property) should hire a seasoned lawyer to probate your Will.  Once creditors, taxes (if any) and estate administration expenses are paid, the remainder of your property is distributed to your beneficiaries pursuant to the terms of your Will.

3.  What is the best Will for me?  A Will drafted by an attorney experienced in estate planning.  While there are a number of programs available on the internet to assist you in drafting a Will, oftentimes they are not state specific and leave out key provisions.

4.  If I am married, does my spouse need a Will as well?  Yes, most married couples hold large property (like a house) jointly and, upon the first to die, the property remains with the surviving spouse.  However, upon the second death, all of the assets will be in the surviving spouse’s name alone and, therefore, it is important that each spouse have his or her own Will.

5.  Can I set up a trust under my Will?  Yes.  Many clients create a trust under their Will for the benefit of their spouse and their heirs (called a testamentary trust).  A trust can also be set up outside the Will, which will save court involvement and fees related to same.

6.  How much do Wills cost?  It depends on the complexity of the estate planning issues involved.  Often, attorneys will create basic estate planning documents including a Will, a healthcare directive and a power of attorney, for a reasonable fee.  As stated earlier, it is important that you have a trusted estate planning attorney prepare your estate planning documents as other methods, including the internet, are unreliable.

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Pennsylvania Courts have acknowledged the “sudden emergency doctrine” as a relevant defense in determining whether a driver was negligent in a car accident.  See Lockhart v. List, 665 A.2d 1176 (Pa. 1995).  The “sudden emergency doctrine” recognizes that a driver, who, although driving in a prudent manner, is confronted with a sudden or unexpected event which little or no time to comprehend a situation and act accordingly should not be subject to liability simply because another perhaps more prudent course was available; rather, under such circumstances, a person is only required to exhibit an honest exercise of judgment.  Under Pennsylvania law, the “sudden emergency doctrine” presupposes the unexpected event to be some type of  interjection of a moving object or instrumentality into the driver’s path.  See Brown v. Schriver, 386 A.2d 45, 49 (Pa. Super. 1978); Elder v. Orluck, 483 A.2d 474 (Pa. Super. 1984) and Hanlon v. Sorenson, 433 A.2d 60 (Pa. Super. 1981).

Pennsylvania Courts have encountered many interesting situations which they have concluded that the “sudden emergency doctrine” may constituted a defense for a driver in a car accident, in which they would be otherwise considered negligent.  Specifically, a dust cloud, a moving object in the road, a blockade in the road, swerving of another vehicle, blinding lights and a dense patch of fog may be considered as a “sudden emergency doctrine” under Pennsylvania caselaw.  See Cunningham v. Byers, 732 A.2d 655, 658 (Pa. Super. 1999) and Unangst v. Whitehouse, 344 A.2d 695, 699 (Pa. Super. 1975). 

Although this doctrine is rarely used by defendants in a car accident, it is an issue which should be addressed very early in a case by an attorney and/or an investigator.  This cane be easily addressed by carefully reviewing the statements of all parties and witnesses in the police report, inspecting the scene and interviewing witnesses. 

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Most family-owned business owners put off their succession planning because they don’t want to think about their retirement, disability or death, however, business succession planning should be a priority in every family owned business. A family owned business owner’s decision to eventually retire is not as simple as no longer going to the office. Key questions need to be answered before the family owned business owner can “leave” the business: i) will he or she have enough money at retirement; ii) who is going to own and manage the business; iii) how will ownership and management be transferred to new owners; and iv) should the business be carried on or sold to a third party.

A proper business succession seeks to alleviate or lessen the above issues by setting up a smooth transition between the family owner business owner and the future owners of the business. Business succession planning can be broken down into three distinct categories: i) ownership; ii) management; and iii) tax savings. It is very important, at the outset, to recognize that ownership and management do not have to be combined. A small business owner may decide to transfer equal ownership in the business to all of his or her children, even though only one child is involved in and manages the business. The tax aspect of a proper succession plan tries to minimize estate taxes at the death of the family business owner.

What follows is a list of tips that may assist you in your own succession planning:

1. It is never too early to start planning. Unforeseen events, such as death and disability, often cause a rapid transition of the family owned business. The time to begin a succession plan is now. The longer the succession plan is in place, the smoother the transition of the business will be.
2. Involve your family in the succession planning process. Involving your family in the succession planning serves two purposes: 1) it cuts down family discord later, as each family member knows where he or she “stands” relative to the business; and 2) it allows you to determine the best successor for the business. You may find, in your discussions with your family, that not every family member desires to be involved in the business, as they may have their own businesses or careers they desire to pursue. Involving your family also gives you the opportunity to do an honest assessment of the persons desiring to succeed you. While it may have been your great desire to leave the business to your first son or daughter, that person may not have the managerial skills and other skills necessary to lead the business.
3. Train your successor(s). Your succession plan should not be simply about transferring ownership; it should also be about training your successors to properly execute your succession plan. There are few things as devastating as watching a business fail that you worked so hard to build. In executing any succession plan, adequate time must be given to train those who are eventually going to run the business.
4. Seek outside assistance. You should seek an attorney, accountant and other professional advisors knowledgeable in the succession planning field to assist you with your succession plan.

Putting off business succession planning is a mistake. A proper succession plan can help ensure that your retirement needs are met and that the business you worked so hard to build will continue to flourish for years. 

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