Lancaster Law Blog

Lancaster Law Blog

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Brandon Harter and Kathleen Miller have joined the law firm of Russell, Krafft & Gruber, LLP as associate attorneys

Posted in Outside the Law

Brandon_HarterBrandon Harter and Kathleen Miller have joined the law firm of Russell, Krafft & Gruber, LLP as associate attorneys.

Brandon joined Russell, Krafft & Gruber, LLP in 2016 after several years with the former Lancaster firm of Hartman, Underhill & Brubaker where he began his career in private practice.  Prior to that, Brandon served as a Clerk to the Honorable A. Richard Caputo, District Judge, Middle District of Pennsylvania.  He is a 2006 magna cum laude graduate of Dickinson College and a 2009 honors graduate of William & Mary School of Law, Order of the Coif, Order of the Barristers.

Brandon provides counseling and guidance on matters relating to Business Law, Municipal Law and Civil Litigation, with a particular focus on the intersection of law and technology. His practice includes cost-effective litigation in the Federal and Pennsylvania courts, including eDiscovery solutions tailored to the nature of each dispute. Outside the litigation arena, Brandon’s practice regularly includes drafting of technology related agreements, such as IT service agreements, software licenses and document retention policies. Brandon also advises municipal organizations on a variety of issues and provides general business counseling. Brandon’s unique experience and perspective is invaluable to his clients on the privacy, data security and social media issues which increasingly arise for both private businesses and public entities.

Brandon has served on the Board of the Landis Valley Associates for several years, and is currently serving as Board President. He resides in Mountville with his wife, Cassandra, and their three children.

Bio KKMKathleen Miller began her legal career with Russell, Krafft & Gruber, LLP as a law clerk in 2015.  She worked in marketing for ten years at a local hospital before attending law school.  She obtained her B.A. in Psychology and Criminal Justice in 2002 from Temple University.

Kathy is a 2015 cum laude graduate of Widener University Commonwealth Law School.  During law school she was a member of the Widener Journal of Law, Economics and Race, serving as Article Editor.  She also completed an externship with the Honorable Margaret C. Miller of the Lancaster County Court of Common Pleas.

Kathy concentrates her practice in Family Law, Estate Planning and Civil Litigation.  Her goal is to ensure her clients always receive the best possible outcome.  She works with individuals and families to help them navigate through simple or complex legal matters in a manner that is least disruptive to their daily lives and allows for a smoother transition.

Kathy is a proud Ephrata native and currently resides in East Petersburg with her husband, daughter and step-son.

For additional information please visit Russell, Krafft & Gruber’s website at www.rkglaw.com.

Marketing by Email, Fax, Voice or Text Message? Read This Before You Send Another One.

Posted in Business Law, Matt Landis

Last week I received a fax from a business advertising their latest deals. Even if you’ve long ago disposed of your fax machine (hopefully in Office Space fashion), keep reading – the principles in this post apply to email, voice calling and text messaging too!

Before swiftly recycling the unwanted fax, like any good lawyer, I thought to myself: I wonder if there is a law that regulates unwanted faxes? Turns out, there is, dear reader – the Telephone Consumer Protection Act of 1991 (“TCPA”) was amended in 2005 and provides specific circumstances where a fax sender is permitted and is not permitted to send faxes.

Basically, you are only allowed to send an advertisement via fax if you have an “established business relationship” with the recipient. The statute is a strict liability statute, meaning that if you do not fit the “established business relationship” exception, the sender could be liable for $500 per page in money damages.

An established business relationship is defined as: “a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business or residential subscriber with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the business or residential subscriber regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party.”

In addition to strict liability for damages under federal law, there are similar regulations in place under the Pennsylvania Unsolicited Telecommunications Advertisement Act. A violation of the Pennsylvania law could enable treble damages (triple the usual amount) for certain violations.

Our firm has encountered lawsuits where companies file class action lawsuits against a large number of defendants for sending unwanted fax advertisements. Since it is a strict liability statute, and with the possibility of treble damages under Pennsylvania law, such lawsuits can be lucrative to plaintiffs and expensive for businesses who violate the law.

The TCPA also limits telemarketing calls and SMS text messages as well.

What about spam email? There’s a law for that too, called the CAN-SPAM Act of 2003. There are very specific requirements for what you need to include in commercial emails. Commercial emails are defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” The law also makes you responsible for those acting on your behalf, so if you hire a company to handle your email marketing, confirm that they are following the appropriate procedures for CAN-SPAM Act compliance. Fines per violation could be up to $16,000, so it’s important to make sure any commercial emails you send comply with the provisions of CAN-SPAM.

Business owners rely on effective and creative marketing to grow their business, but make sure you’re aware of the limitations of these marketing methods so that you aren’t faced with an unwanted lawsuit or fine.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and works regularly with business owners and entrepreneurs.

Contract for Deed and Installment Sale Agreements

Posted in Real Estate, Zoning & Land Use

You may have read the New York Times article entitled Contract for Deed Lending Gets Federal Scrutiny.  The Times reported that the Consumer Finance Protection Bureau (CFPB) is looking into whether a commonly used technique for the sale of residential real estate known as a Contract for Deed or Installment Sale Agreement may violate federal Truth in Lending laws.  It is speculated that the CFPB is focusing on the increased use of this technique and abuses in the marketplace that target lower income buyers.

Up to now, the CFPB has focused on institutional financing and has not focused on the individual sale of houses by homeowners.  The recent interest in these matters may be based on what the Times reports to be a widespread use of this technique in the mid-west and south where there are a large number of homes that sell for less than $100,000.00.  The article points out that a firm in Texas, apparently, has become a national player in the Contract for Deed business. Continue Reading

Condo & Homeowners’ Associations Do Not Need Unanimous Approval To Limit Or Prohibit Leasing

Posted in Aaron Marines, Condominium and Homeowners Associations

Governor Wolf recently signed a Bill that makes it much easier for condominium and homeowners’ associations to limit leasing in their communities.  House Bill 1340 makes it clear that a leasing restriction can be passed without unanimous approval of all unit owners.  This means that an amendment to limit or even prohibit leasing in the community can be enacted the same way as any other amendment to the governing documents.  It can be passed by the affirmative vote of sixty-seven percent of all unit owners (unless the Declaration provides for a larger percentage).

We have worked with many condominium and homeowners’ associations to enact amendments that would limit the number of units that are leased in a community.  In many cases, opponents of these amendments have argued that preventing a unit owner from leasing their unit is a “change in the use of a unit.”  Section 3319 of the Pennsylvania Uniform Condominium Act (and Section 5319 of the Pennsylvania Uniform Planned Communities Act) provides that an amendment that changes the use of a unit can only be enacted with unanimous consent of all unit owners.  This led to the question of whether prohibiting a unit owner from leasing their unit was a change to the use of the unit or not.  No Pennsylvania Court had ever ruled on the issue, however, there have been a number of rulings in the condominium setting from other states.  These rulings have been split.  Some states have said leasing amendments require unanimous approval, while others have said they do not. Continue Reading

Big Changes for the Pennsylvania Liquor Code

Posted in Aaron Zeamer, Business Law

You may have been surprised to see the news on the front page of the newspaper this morning:

More convenient beer and wine sales? Sure, say shoppers

Q&A: What does Pennsylvania’s new liquor law mean for you?

Believe it or not, the PA House of Representatives and Senate have been able to agree upon a bill which significantly expands and reforms the Pennsylvania Liquor Code.  Given the level of discord between Republicans and Democrats as well as between the House and Senate (not to mention the Governor), it came as a great surprise to many that a liquor bill was able to be passed, not to mention a bill with rather broad updates to the Liquor Code.  Governor Wolf signed this bill yesterday enacting it into law in 60 days.

Some of the highlights of this bill which have the potential to offer significant benefits to both consumers and existing operators include:

  • A wine permit which will allow restaurant licensees (including grocery stores and convenience stores which currently operate using a restaurant liquor license) to obtain a permit allowing them to sell up to four (4) bottles of wine for off-premises consumption. A separate permit will need to be acquired from the PLCB in order to sell wine to go, and it’s likely that this will be used in large part by the grocery stores and convenience stores which are currently scooping up available restaurant liquor licenses.
  • Speaking of convenience stores, this bill potentially resolves the issue that has been working its way through Pennsylvania courts regarding whether or not a business that sells liquid fuels can also hold a liquor license. This codifies some of the recent rulings by the Pennsylvania Liquor Control Board and clarifies that permission can be received from the Board for a business which sells liquid fuels to also sell alcohol, provided certain additional requirements are met.

Continue Reading

Reflections on Leadership Lancaster – The Finale

Posted in Leadership Lancaster, Matt Landis

As a proud member of the Leadership Lancaster Core Class of 2016, I will be posting periodic updates of my experiences in the program. Learn more about Leadership Lancaster at www.leadershiplancaster.org or feel free to contact me directly with any questions you may have.

Leadership Lancaster Graduation

Last week I “walked” at our Leadership Lancaster Core Class of 2016 graduation. It was a great event that highlighted everything that makes Leadership Lancaster a special experience that I will carry with me. Throughout the program, I met passionate members of the community who care about Lancaster and work hard to make it a better place to live and work. I also observed many aspects of the County that I wouldn’t have otherwise known about or experienced.

For more insights into my experience, check out my earlier posts in the series:

Reflections on Leadership Lancaster – About One Month In

Reflections on Leadership Lancaster – Part Two

Finally, here’s a summary of the final sessions of the program:

Public Education – This session explored education in Lancaster County from a number of locations and perspectives. We started the day at Garden Spot High School in New Holland where we learned about some of the pressing issues facing K-12 education, including budgetary constraints, the changing landscape of public education and the pros and cons of standardized testing. Then we traveled to the Lancaster County Career & Technology Center for a panel discussion from Senator Ryan Aument, Senator Lloyd Smucker, B. Keith Yohn of the CTC, Dr. Michele Balliet, Superintendent of Elizabethtown Area School District, and Dr. Robert Hollister, Superintendent of Eastern Lancaster County School District. We finished off the day at J.P. McCaskey High School, where we received a tour of the school from students and heard perspectives from Superintendent of the School District of Lancaster Dr. Damaris Rau and Pennsylvania Secretary of Education Pedro Rivera.

Law and Justice – Given my profession, I was interested to see how this day played out. The day began at the Lancaster County Prison, where we had a tour of the facility and a K-9 demonstration. We spent the rest of the day at the Lancaster County Courthouse learning about the judicial system from the perspective of law enforcement, prosecutors, defense attorneys, judges and a victim of a crime. Hearing directly from the stakeholders in the process, particularly the victim of a crime and the impact it has had on her life, was an invaluable experience and unfortunately highlighted a perspective which is often overlooked.

Although there was a small portion of the day that focused on the civil justice system, the majority focused on the criminal system. In the afternoon, we had an exercise where we role-played various sentencing hearing scenarios before President Judge Dennis E. Reinaker of the Court of Common Pleas of Lancaster County.

CAT Presentations – On the first day of Leadership Lancaster, we were put into small groups called Community Action Teams (CAT), each focusing on an area of public interest. Our team’s focus was employment training and workforce readiness. Other projects focused on inclusion, education, environment, hunger, community engagement, mental health and substance abuse. This session was the culmination of eight months of work on our project, which sought to identify and address a need in Lancaster County relating to employment training and workforce readiness. Each team presented their project in front of a panel of non-profit experts and received constructive feedback on the potential implementation of the project.

Takeaways – The last nine months have been an incredible experience. It was a great way to experience all that Lancaster County has to offer, however for me, the best part was meeting all of the people who are passionate about Lancaster County, including the facilitators of the program, Kate Zimmerman (Program Director) and Deb Rohrer (Executive Director), all of the members of the Core Class of 2016, and finally all of the members of local organizations and government representatives that support Leadership Lancaster and allowed us all to have this experience.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and works regularly with business owners and entrepreneurs.

Congratulations to Matt from everyone at Russell, Krafft & Gruber, LLP.  The Leadership Lancaster program is an experience that requires a high level of commitment and effort from the participants.  Matt’s dedication and the insight he gained through his participation is an inspiration to all of us to work even harder to support the needs of Lancaster County through community leadership.  Visit the Leadership Lancaster website for more information about the program.

New Federal Rule Increases Employee Eligibility for Overtime Pay

Posted in Employment Law

In a March 17, 2016 press release, the White House announced that the Department of Labor will issue a final rule today that will expand workers’ eligibility to receive overtime pay (time-and-a-half). Under the prior rule, only workers making a salary of less than $23,660 per year ($455 weekly) qualified to receive overtime pay when working over 40 hours in a week. The new rule will increase the salary threshold to $47,476 per year ($913 weekly), thus expanding coverage to over four million workers nationwide, and approximately 185,000 Pennsylvanians. We expect that restaurant/hospitality employers and retailers will be impacted the most, but all employers may be impacted depending on the current payment structure of their workforce.

Employers have six months to prepare for the final rule, which goes into effect on December 1, 2016. Options include raising an employee’s salary to keep the employee exempt from overtime, payment of time-and-a-half when necessary, or evaluation and realignment of hours and staff workload.

For more information, here’s a list of resources from the United States Department of Labor that will answer common questions about the new rule:

The impact on your business may be minimal if your employees are compensated hourly and already receive overtime pay, or if salaries are already in excess of $47,476 per year, however if your employees are salaried in the range between the former threshold of $23,660 and the new threshold, some careful planning will need to occur prior to December 1, 2016.

In the coming weeks we will post additional information to help determine whether your employees are exempt from the overtime requirement and strategies to address the adoption of the new overtime rule.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and works regularly with business owners and entrepreneurs.

The Successful Turnover: Best Practices for Transition from Developer to Association

Posted in Condominium and Homeowners Associations

Thank you to everyone who joined me and Lori Van Gorden of Horst Property Management for our real estate development seminar on May 2.  We led an informative discussion about “The Successful Turnover: Best Practices for Transition from Developer to Association.”  Lori and I have guided many developers and associations through this transition and appreciate the importance of the process.  We were happy to share our experience to try to make this as smooth and painless – for both the developer and the association – as possible.

Is there an Attorney Fee that is Too Big to Collect for Violations of Association Rules?

Posted in Condominium and Homeowners Associations

In a recent case in the Pennsylvania Commonwealth Court, a condominium association was awarded attorneys’ fees that were almost 23 times larger than the fine and assessments they were trying to collect.  Because the litigation to collect past due assessments and a snow removal fee took three years to complete, the amounts awarded to the association broke down like this: $239 for late assessments, $500 for a snow removal special assessment, $300 capital improvement special assessment, $104 late fee, and $26,206.68 in attorney’s fees.

The matter was before the Commonwealth Court because the Unit Owner complained that the attorneys’ fees were not reasonable.  The Court disagreed and awarded all the attorneys’ fees to the Association and against the Unit Owner.  The decision made three important points that all associations should remember.  They are:

  1. An Association is not required to accept less than the full sum it is entitled. The Association can try to recover all of the attorney’s fees, late fees, and costs it incurs.
  1. Attorney’s fees should be awarded to the Association even if they are disproportionate to the assessments to be collected. Attorneys’ fees and costs that are 23 times greater than the actual fees are permitted.
  1. The Association does not need expert testimony to establish that attorneys’ fees are reasonable. In this case, the property manager testified that he worked with other attorneys in this field, and that the rate charged was “reasonable and competitive for the work involved.”  This means that the Association does not need an expert condominium attorney to testify that the attorney’s fees are reasonable.  So long as the property manager, or board member, or someone could present evidence that the fees were reasonable for the work performed, the Court was willing to accept this testimony.

Sometimes an Association can accumulate significant attorney’s fees, especially for cases involving collections or violations of rules and regulations, rental restrictions, etc. This is especially true when the Unit Owner delays or drags out the litigation.  Cases like the The Arches Condominium v. Robinson should be useful to remind courts to award Associations the attorney’s fees and costs to which they are entitled.

Aaron Marines is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and practices in a variety of areas including Commercial and Residential Real EstateLand Use, Land Planning and Zoning matters.

Congratulations to Christina Hausner

Posted in Outside the Law

Congratulations to our partner and colleague, Christina L. Hausner, on being appointed as the solicitor for the County of Lancaster.

Chris has practiced with RKG for 34 years.  She joined Craig, Gary, and Jon in 1982, upon completing her clerkship with the Lancaster County Common Pleas Court Judges Wilson Bucher and Ronald Buckwalter. Her practice areas include employment law, municipal law and civil litigation. Chris is known through our office as a thoughtful and thorough attorney.  While she has skillfully litigated cases in Pennsylvania courts, including administrative, and federal courts, she also has provided careful advice to municipal clients regarding sensitive and occasionally polarizing public issues.

Chris ran and oversaw the firm’s litigation meetings, often advising other attorneys about case management and procedure. We will miss not only her guidance, but her humor and insight around the office.

Chris is working with other RKG attorneys to transition clients. If you have any questions for Chris or just want to wish her well, feel free to call the office at 293-9293 or email her at clh@rkglaw.com.

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