You've Got Your Marriage License - Is That All You Need?

In 1996, I was a legislative research analyst in the Pennsylvania House of Representatives when the General Assembly enacted the statute specifically prohibiting the recognition of same sex marriages.  That statute provides as follows: 

It is hereby declared to the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.

I recall listening to the floor debate in my office on the day of the Bill’s final passage and discussing it with other staff members.  While I was not involved with the drafting or passage of the Bill, I very clearly recall the urgency among the elected members of the House to move the Bill quickly because there was a great fear that some judge in Hawaii could force the Commonwealth of Pennsylvania to recognize a marriage between same sex couples. And so it passed, unremarkably, and moved to the Senate for final approval before enactment.

But Tuesday was a remarkable day for same sex couples in Pennsylvania who have been governed by that 1996 law.  Pursuant to Whitewood v. Wolf, 2014 WL 2058105 (U.S.M.D., May 20, 2014), the statute has been declared unconstitutional and same sex couples can now marry in Pennsylvania.  There are headlines in every newspaper and on-line media outlets and videos on the internet and the news.  There was a line at the Dauphin County courthouse yesterday morning when it opened of same sex couples wanting to apply for licenses. In Lancaster County, the first same sex couple to apply arrived at the Register of Wills office around 8:45 a.m.  It’s historical, no question, and it is now the law of the Commonwealth.  

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IRS Announces 2013 Mileage Reimbursement Rates

The IRS issues its Standard Mileage Reimbursement Rate each year. The rate determines the amount that can be used as a deduction for business travel and serves as a guideline for employers who reimburse their employees for the same. It reflects not only fuel costs, but also factors in average wear and tear on a vehicle.

Beginning on January 1, 2013, the rate will be raised to 56.5 cents per business mile driven, one cent higher than the 2012 rate. The rate for medical or moving expenses will also be raised one cent to 24 cents per mile. The rate for charitable purposes remains at 14 cents per mile.

While there are generally no Pennsylvania laws requiring employers to use the IRS rate, there are tax advantages for doing so. The IRS will deem employers who make qualifying reimbursements up to 56.5 cents per mile as meeting their accounting requirements, thus no income reporting or withholding is required for those reimbursements. However, employers need to make sure that their employees have provided adequate proof that the mileage was strictly for business use. Qualifying employees who are not reimbursed for their business mileage will be able to deduct 56.5 cents per mile on their individual tax returns.

As an interesting side note, AAA's website offers a gas price tracker ("AAA Daily Fuel Gauge Report") that can be used to monitor gas price averages and compare averages in different geographical areas. This tool can be helpful in analyzing fuel expenses against reimbursement rates and keeping track of the fluctuation of gas prices.

According to the tracker, as of the date of this post, the national average for regular gas is $3.426 per gallon. Pennsylvania's average is higher at $3.626 per gallon. At $3.550, the average in Lancaster County is also higher than the national average, but a fraction lower than the state average. 

Reviewing the Supreme Court Decision on Healthcare Reform - Thoughts from a Lancaster Lawyer

I must admit that as a lawyer I pay very little attention to most decisions of the United States Supreme Court. Very few decisions seem to have an impact on my life or practice, and generally these cases tend to come down with little fanfare. Today was different, however, as I found myself tracking minute-by-minute the news coming in from the Court. I went to bed  thinking about the case, and it was the first thing I thought about in the morning. I realized that this case actually has an effect on my life and family, and I was watching one of the biggest Supreme Court decisions to come down in my lifetime. I counted down the time until 10 a.m. when the Court began reading the opinions that were released today from the Supreme Court building in Washington D.C.  From ten o’clock on I followed the SCOTUS blog. The first line I saw on the SCOTUS blog stated the individual mandate was a tax, then the next line stated that the law would be upheld. Who knew the United States Supreme Court could be so interesting as to keep me on the edge of my seat?

I was likely not alone as the interest over National Federation of Independent Business, et al v. Sebelius, Secretary, Secretary of Health and Human Services, et al, gripped a good part of the nation in anticipation. And now that the Opinion came down I enjoy looking back at all of the speculation that turned out to be incorrect. I think a lot of commentators learned that they can't judge how the Court will rule based on the questions at oral argument. Much of this misguided speculation was due to the fact that this case captured national attention as it spoke to the broader question of the role of Congress in our lives, and it led many people to look for the first time at questions such as Congress's power under the Commerce Clause and give their opinions.

I wanted to write an article on the case that wasn't bogged down in legal theory, until I downloaded the opinion and realized it was almost a 200 page  document. That type of thing happens when the Court has a majority, concurring and two dissenting opinions (the dissenting opinion alone is 66 pages). I had to laugh at the many points in the opinions when the Justices commented on the length of the Patient Protection and Affordable Care Act, colloquially referred to as "Obamacare", in light of the length of their own opinion.   

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The Affordable Care Act: Will it Be Upheld or Overturned?

Tomorrow, the Supreme Court will make one of the biggest decisions in American legal history as it weighs the constitutionality of President Obama’s Patient Protection and Affordable Care Act (Affordable Care Act for short). This means that the Court will decide whether or not the Act as a whole, or in part, can legally be put into effect according to the U.S. Constitution. To many people, what the Supreme Court does is a huge mystery. There is a lot of tradition and procedure that goes along with the hearing of a Supreme Court case, and despite the fact that no cameras are allowed into the courtroom, much of the public’s interest lies in what decision will come out of the nation’s highest court on Thursday.

The Supreme Court, which gets requests to hear around 5,000 cases a year, only hears fewer than 150. Multiple cases in the lower courts involving the Affordable Care Act have been appealed to the Supreme Court. In one case, four individual citizens represented by the Thomas More Law Center sued President Obama, the Secretary of the Department of Health and Human Services, the Attorney General and the Secretary of Treasury, thereby challenging the constitutionality of the Act. After the U.S. Court of Appeals for the 6th Circuit upheld a District Court’s ruling of the Act as constitutional, the case was appealed to the Supreme Court. In the case to be ruled on, 26 states, the National Federation of Independent Business and a number of individuals challenged the Act's health insurance mandate and Medicaid expansion. 

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National Law Day 2012

The first of May has been National Law Day since a joint resolution of Congress in 1961 so designated the date. Eisenhower was the first president to proclaim a National Law Day, and every president since has issued his own proclamation. You can read their proclamations at the Law Day Presidential Proclamations Archive.

Why is there a National Law Day? There are so many "declared" holidays we barely acknowledge as they pass by. For example, did you know that May 11 is Eat What You Want Day? How about Cellophane Tape Day on May 27? Although cellophane tape is quite significant (even in the legal field), it's more beneficial to take a moment to think about the importance of the law. The holiday is meant to give Americans a chance to reflect on the ideals of equality and justice that our legal system protects, as well as to cultivate a respect for the law. It may come as no surprise that there is a law establishing National Law Day, under Title 36 of the U.S. Code.

The American Bar Association (ABA) is celebrating this Law Day with the theme "No Courts, No Justice, No Freedom." To read more about it and about Law Day in general, please visit ABA's Law Day 2012.

Today, be sure to wish someone you know a Happy Law Day!

The Latest in PA Liquor Sale News

Pennsylvania lawmakers are continuing in their efforts to find a way to privatize or hybridize liquor sales in the state. House Bill 11, which was introduced last summer, has undergone another round of modifications with a goal of bringing in more revenue and satisfying the interests of legislators, current licensees and the Governor. The latest round of changes would include:

  • Permitting beer distributors to sell six-packs
  • Increasing the number of retail licenses to be sold from 1,250 to 1,600
  • Allowing beer distributors to purchase up to 10 retail licenses to sell wine and liquor, then auctioning off the remainder by counties

These are just some of the changes proposed in the new version of the bill, and while they seem to be a considerable step toward privatization, there is still a long way to go and a lot of groups to convince before this bill becomes a new law in Pennsylvania. For more details about the bill, see Another round for Pennsylvania's wine and liquor store fight.

In addition to the activities in the House, Giant Food Store in Susquehanna Township received approval to sell beer from the PLCB. By the fall, this Giant location will join approximately 75 Pennsylvania grocery stores in giving customers an option to purchase a limited amount of beer.

Restart Retirement: The ABCs of Retirement Communities

For those who are nearing the retirement stage of life, a great resource is Restart Retirement, a blog that offers a wealth of information to retirees or those on the verge of retirement.

Recently, Attorney Jon Gruber, partner at Russell, Krafft and Gruber, guest-authored an article for Restart Retirement. With over thirty years of experience in estate planning and administration, he has helped countless clients achieve peace of mind by being prepared for their retirement years and beyond. His article, The ABCs of Retirement Communities, aims to help retirees better understand the different types of contracts under which retirement communities operate, which in turn can help them find the community that best serves their needs. The article discusses the following contracts that can be found in Continuing Care Retirement Communities (CCRCs):

  • Type A – Lifecare Contract
  • Type B – Modified Contract
  • Type C – Fee-for Service Contract
  • Type D – Rental Contract

Whether you are facing retirement or already there, you know that choosing a retirement community is a major life decision. It is imperative that you understand what different communities offer in terms of amenities, care and financial security. Having a basic knowledge of these contract types can aid you greatly in making your decision.

Please read The ABCs of Retirement Communities, and stay tuned for future guest posts by Attorney Gruber.

Restart Retirement is lifestyle-oriented and covers everything from financial matters to finding creative outlets during retirement years. It features leading authorities and retirees discussing mature living topics. If you are considering retirement or already retired, you’ll find information to help you make informed decisions about subjects that matter to you physically, emotionally, socially and financially. You will be able to read how others pursue their passions and find new zeal in your own life.

ARD Program Lightens Court Caseload

The Lancaster Sunday News has recently been publishing a series of articles about the debate surrounding the efficiency of the Lancaster County criminal court system. On March 18, one article addressed the Accelerated Rehabilitation Disposition program ("ARD") and how it helps to lighten the court's caseload by keeping many cases off of the court calendar. 

The ARD program is generally available for first time DUI offenders although, as the Sunday News article points out, over the past few years, it has become available for some defendants charged with low-level and primarily nonviolent offenses. The program tends to lighten the court calendar because it offers several advantages to people charged with a crime. 

First, ARD allows a defendant to keep a clean criminal record. The successful completion of the program is not considered a criminal conviction, and the charges can be removed from a defendant's criminal record through a process call expungement. This is one of the most attractive advantages to first-time offenders because they will not have to check the "yes" box on job applications and other documents asking if they have ever been convicted of a misdemeanor or felony.

Second, there is generally no jail time involved with the ARD program. As a result, if a defendant is charged with a crime that calls for mandatory jail time, such as driving under the influence of alcohol ("DUI"), the ARD program allows that defendant to avoid jail despite the charges.

Third, if you are charged with DUI, the ARD program will result in a much shorter license suspension. DUI charges normally call for a twelve to eighteen month suspension depending on the defendant's blood alcohol content ("BAC") and whether the defendant has had any prior DUI convictions. On the other hand, and as the Sunday News article points out, ARD will result in a license suspension of zero to ninety days depending on the offender's BAC. In a previous post, I described the stiff penalties, including jail time and significant fines, drivers can face if they are caught driving with a license suspended for DUI or ARD purposes.

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Julie Miller Appointed to PBA Collaborative Law Committee

In February 2012, Julie Miller was appointed to the Pennsylvania Bar Association’s Collaborative Law Committee. The committee’s purpose, according to its mission statement, is to “address current issues regarding the collaborative law dispute resolution process; educate attorneys and the public about the collaborative law dispute resolution process; recommend standards of practice for attorneys using the collaborative law dispute resolution process; and monitor, propose, and/or support legislation or rules of court that further the development of the collaborative law dispute resolution process.”

Attorney Miller has been offering collaborative law as an option to clients since 2009. She is looking forward to furthering the objectives of the Committee and the opportunity to discuss the benefits of the process with other attorneys throughout the Commonwealth. She is also a member of the International Academy of Collaborative Professionals (IACP), Collaborative Professionals of Central Pennsylvania (CPCP), and a contributor to the Lancaster Law Blog’s Collaborative Law page.

2011 Tax Deadline Extended to April 17, 2012

For most tax professionals and many taxpayers, April 15th stands out every year as the day when tax returns and any related tax payments are typically due. However, this year we will have two extra days to file returns and make payments. 

The filing deadline for 2011 returns has been pushed back to Tuesday, April 17, 2012. Why? It turns out that April 15, 2012, is a Sunday and April 16, 2012 is observed as Emancipation Day, a legal holiday in the District of Columbia. Relevant laws state that District of Columbia holidays affect tax deadlines just as federal holidays do because the offices of the Internal Revenue Service will be closed. The April 17th deadline applies to any return or payment normally due on April 15th, as well as to the deadline for requesting a tax filing extension and to making 2011 IRA contributions. Taxpayers who request an extension will have until October 15, 2012 to file their returns.

As an interesting side note, Emancipation Day celebrates the day in 1862 when President Abraham Lincoln signed the Compensated Emancipation Act for the release of slaves in the District of Columbia. This occurred approximately nine months before President Lincoln issued the famous Emancipation Proclamation. For more information on Emancipation Day, please see the District of Columbia website

Pennsylvania's Teen Driving Laws Seek to Reduce Accidents and Fatalities

In the past few months, Pennsylvania has experienced several tragic losses of teenagers through vehicle crashes. Unfortunately, most of us can think of one specific accident that hit close to home. Maybe it was a group of teens in a nearby town, from the local high school, or a friend or family member. If it seems to happen all too often, that is because it does. Motor vehicle crashes are the leading cause of death among 16 to 20-year-olds.

In its 2010 Crash Facts and Statistics Report, Pennsylvania Department of Transportation notes that 17- and 18-year-old drivers are more than twice as likely to get in accidents than drivers over the age of 30. 16-year-old drivers, however, are much less likely than 17- and 18-year-olds to get into accidents due to the mandatory six month waiting period between obtaining a Learner's Permit and a license. Recognizing this positive correlation between reduced accidents and extended learning periods for new drivers, Pennsylvania enacted a new teen driving law, Act 81 of 2011.

The table below outlines the stated objectives of Act 81 and the corresponding changes that went into effect on December 27, 2011:

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2012 IRS Mileage Reimbursement Rates

The IRS issues its Standard Mileage Reimbursement Rate each year. The rate determines the amount that can be used as a deduction for business travel and serves as a guideline for employers who reimburse their employees for the same. It reflects not only fuel costs, but also factors in average wear and tear on a vehicle.

In July 2011, the Internal Revenue Service responded to high gas prices by raising their mileage reimbursement rate from 51 cents to 55.5 cents per mile. In Notice 2012-1, the IRS indicated the new rate, which went into effect on January 1, 2012, would remain the same. The only change this year is that the rate for medical or moving expenses was raised from 19 to 23 cents per mile. The rate for charitable purposes remains at 14 cents per mile.

While there are generally no Pennsylvania laws requiring employers to use the IRS rate, there are tax advantages for doing so. The IRS will deem employers who make qualifying reimbursements up to 55.5 cents per mile as meeting their accounting requirements, thus no income reporting or withholding is required for those reimbursements. However, employers need to make sure that their employees have provided adequate proof that the mileage was strictly for business use. Qualifying employees who are not reimbursed for their business mileage will be able to deduct 55.5 cents per mile on their individual tax returns.

As an interesting side note, AAA's website offers a gas price tracker ("AAA Daily Fuel Gauge Report") that can be used to monitor gas price averages and compare averages in different geographical areas. This tool can be helpful in analyzing fuel expenses against reimbursement rates and keeping track of the fluctuation of gas prices.

According to the tracker, as of the date of this post, the national average for regular gas is $3.374 per gallon. Pennsylvania's average is slightly higher at $3.457 per gallon. At $3.439, the average in Lancaster County is also higher than the national average, but a fraction lower than the state average. A year ago, the gas average in Lancaster was $3.146, showing a rise of approximately $0.30 per gallon in the area over the past year.

Fees for Lancaster County Assessment Appeals in 2012

Starting next week, filing an assessment appeal in Lancaster County will cost $25 for almost all residential property owners. The 2012 fees for annual farm property and commercial property appeals will be $50 and $75, respectively.

The purpose of the new fees is to cover administrative costs generated by the appeal process. The fees are comparable to those imposed in Dauphin and Chester Counties, where the residential appeal fees are also $25. While the fee is new in Lancaster County, it is still a fraction of the cost of many civil action fees, which can add up to hundreds of dollars. For example, filing a civil action to challenge a decision by the Board of Assessment Appeals will be $158 in 2012.

The Lancaster County Property Assessment webpage has more information on the appeal process in the County. In addition, it is always beneficial to seek the guidance of an attorney if you are considering filing an assessment appeal. Our firm regularly represents residential and commercial clients.

National Legislation Introduced to Further Protect Children - The Speak Up Act

As we have witnessed the Penn State Scandal spark movement toward change in state legislation, it is no surprise that its impact has now reached Washington, D.C. Yesterday, Pennsylvania Senator Robert Casey and California Senator Barbara Boxer introduced the Speak Up to Protect Every Abused Kid (Speak Up) Act of 2011. The purpose of the Act is to ensure that all adults, no matter what profession, will be legally obligated to report cases of suspected child abuse and/or neglect. The Speak Up Act would require all states to enforce this law and would also make clear to whom suspected abuse should be reported, either directly to law enforcement or to state Child Protective Services.

For more information on this legislation please visit:


Pennsylvania Legislature to Strengthen Reporting Requirements of Sex Abuse

On Friday I posted an article regarding Pennsylvania's Mandatory Reporting Statute which requires certain people to report suspected child abuse to the proper authorities.  I highlighted some of the changes that have occurred in the law and the continuing confusion with the current law.  I suggested that our legislature may be prompted to take a look at the current law.   If you were watching the interview with Governor Tom Corbett on Meet the Press on Sunday morning, he confirmed that the move to strengthen the law has already begun. posted an Associated Press article with more details on the interview. The article says in part:

State lawmakers from both parties have proposed changes to toughen the law that governs the reporting of sex assaults, Corbett added. He said he would not be surprised to see it strengthened this year. 

“We have to make sure the change in the law is one that is effective,” he said.


The Penn State Child Sex Abuse Scandal and the Legal Obligation to Report

Unless you have avoided picking up a newspaper, turning on the television or conversing with friends, family or co-workers recently, you probably have heard about the scandal surrounding Penn State University and the sexual abuse allegations against former defensive coordinator, Jerry Sandusky. The scandal, however, extends beyond the football program and has resulted in criminal charges being filed against former athletic director, Tim Curley, and finance and business administrator, Gary Schultz. The charges against these two individuals are perjury and failure to report child abuse. The allegations surrounding the Penn State football program and the charges against its administration, aside from becoming major national news, have brought significant attention to the Pennsylvania Child Protective Services Law and have raised a number of questions about who is required to report child abuse and when.

The current Child Protective Services Law in Pennsylvania requires that someone who, in the course of their employment, comes into contact with children must make a report to the appropriate Children & Youth Service or police when they have reasonable cause to suspect that a child has been a victim of abuse. The Law further goes on to specifically list a number of categories of persons who are required to report suspected abuse including, but not limited to:

  • Any licensed physician, osteopath
  • Medical Examiner, Coroner
  • Funeral Director
  • Dentist
  • Optometrist
  • Chiropractor
  • Podiatrist
  • Intern
  • Registered Nurse
  • Licensed Practical Nurse
  • Hospital personnel engaged in the admission, examination, care or treatment of persons
  • Christian Science practitioner
  • Member of the Clergy
  • School administrator, teacher, school nurse
  • Social services worker
  • Day-care center worker or any other child-care or foster-care worker
  • Mental health professional
  • Peace officer or law enforcement official

This list is not meant to be exclusive of others, but provides specific examples of those required to report. The Law also provides that any person may, even if not included in the above list, report suspected child abuse, although the Law does not impose a specific duty to do so.

The language of the Child Protective Services Law, while seemingly clear in its intent to require those in contact with children to report abuse, does leave open the question of what constitutes contact with children during one’s course of employment. Does it require constant contact? Occasional contact? It has been found that incidental contact with children during employment is not enough to trigger a reporting duty under the Law. In one case decided by a federal court interpreting this law, the Court found that a photo lab worker in a retail store was not under the purview of the Child Protective Services Law. Because the photo lab worker did not have regular contact with children during the course of her employment, she did not have a duty to report suspected abuse she perceived from photographs she processed in the lab.

Much has been made of the legal duty to report child abuse in the context of the allegations against the Penn State administrators. The question has been raised by at least one of the administrator's attorneys as to whether a crime was actually committed by the administrator’s failure to report the information provided to him by Joe Paterno and the former graduate assistant who allegedly witnessed the sexual abuse of the child. It has also been pointed out by legal journals and commentaries that in 2002, when these alleged failure-to-report crimes occurred, the law was different than it is today. The 2002 law required that the abused child come directly in contact with a person in his or her professional capacity in order for that person to be considered a mandatory reporter. The law was then amended in 2007 to broaden the reporting requirements and include those who received the information second-hand. 

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Fair Share Act Changes How Liability is Assigned in Pennsylvania

Governor Tom Corbett recently signed the "Fair Share Act." This legislation brings Pennsylvania out of the minority of states regarding the method used to assign liability in personal injury cases. Our state has now joined over 40 others in abandoning the theory of joint and several liability. There is a significant difference between the two methods:

  • Joint & Several Liability – the old law:  Under this method, if there were multiple Defendants determined to be at fault in a personal injury case, any of the Defendants could be required to pay 100% of the damages awarded to the injured party. The payment could be awarded regardless of the Defendant’s percentage of fault in the sustained injury. For example, if one of the Defendants was found to be 1% at fault in the case, the individual or business could still be required to pay in excess of 1% of the damages, even up to 100%, if the other Defendants were unable or unlikely to pay their shares. 
  • Fair Share Act – the new law:  This law eliminates the joint and several component in Pennsylvania’s liability laws. Under the new Act, Defendants will only be held liable to pay the percentage of damages for which they have been found to be at fault. There are exceptions if their damages exceed 60%. Using the same example as above, a Defendant who was found to be 1% at fault in a case, will only be required to pay 1% of the monetary damages awarded even if the other Defendants are unable or unlikely to pay their shares. 
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Taking a Disaster Loss Tax Deduction

In a recent blog article, Christina Hausner explained how Lancaster County residents affected by the recent flooding may be eligible for property tax relief. In addition to those tax advantages, taxpayers may be able to deduct uninsured losses resulting from catastrophic damage. 

The Internal Revenue Service allows deductions for "casualty losses," which are defined as the complete or partial destruction of a taxpayer’s property resulting from an identifiable event that is sudden, unexpected and unusual. Disaster losses are casualty losses that occur within an area that has been declared a disaster area by the federal government. 

There are two methods of determining the dollar amount of a disaster loss. The first method is to have a qualified appraiser determine the fair market value of the property immediately before and immediately after the disaster, the difference of which would be the loss. The second method takes into account the actual cost of repairing the property in determining the loss, which can only be done when the property is actually repaired. In addition, no part of a loss for which the taxpayer has been reimbursed or for which there is a reasonable prospect of reimbursement is deductible. Another limitation is that disaster losses are generally subject to a floor equal to 10% of the taxpayer’s adjusted gross income (AGI). This means that the loss can only be taken to the extent that it exceeds 10% of the taxpayer’s AGI.

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Lancaster County Residents affected by Flood may be Eligible for Property Tax Relief

On September 15, Aaron Zeamer blogged about how the flooding in Lancaster County resulted in an extension of income tax deadlines. Additional tax relief as a result of flooding could be a reduction or elimination of property taxes. If you have suffered a "catastrophic loss" due to mine subsidence, fire, flood or other natural disaster which exceeds 50% of the market value of your real property prior to the loss, you have the right to appeal your real estate assessment to the County Assessment Board. The Board has the duty to reassess your property to reflect the loss in value from the date of the loss to the end of the taxable year. In addition, any property improvements made after the loss in the same tax year shall not be added to the assessment roll for the remainder of the tax year but shall be added for the following year. If this is done, tax authorities need to reflect the reduced assessment in the form of a credit for the succeeding tax year, or if the property owner applies, taxing authorities shall pay a refund. 

We recognize that the broad scope of the term "catastrophic loss" probably means that you may have bigger problems to face than getting your property taxes reduced, but in the event that you have suffered such a loss, this is another means of relief. 

Tips from a Lawyer for Choosing a Remodeler

Anyone who has remodeled their home more than once knows that it can be a roll of the dice. While there are many credible remodelers out there who will perform as promised and complete the job on budget, there are some who fall far short of those standards.

I have heard horror stories about this from some of my clients. In one case, a remodeler gutted a large portion of a client’s home and refused to continue on the job unless the client paid twice the amount that was originally agreed upon. I have also heard reports of shoddy workmanship, inflated budgets and, in some cases, remodelers who take a down payment and never show up. While such remodelers are in the minority, as a consumer it is important to take steps that will reduce the likelihood of selecting a bad remodeler.

One of the first steps is to check with Pennsylvania Attorney General’s website to see if the remodeler has registered as required under the Home Improvement Consumer Protection Act (the “Act”). The Act requires all persons or business entities that perform home improvement services to register, at which time they receive a registration number. Home remodelers are required to put that number not only on their advertisements, but also on any contracts they enter into with consumers. Thus, if the remodeler you are considering does not have a number or is not including it on their contracts and advertisements, you should be concerned.

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Changes to PA Liquor Code: Extended Happy Hour, Beer-to-Go and Special Occasion Sales for Nonprofits

 As you may have seen in recent newspaper articles, Governor Corbett recently signed into law some changes to the Pennsylvania Liquor Code. The most publicized of these changes is that "happy hours", the period of time when a licensed establishment can sell discounted alcoholic beverages, has been expanded. The previous law limited happy hour to two hours per day with a maximum of 14 hours per week. The change allows a bar or restaurant to have a happy hour up to four hours per day, but maintains the 14 hour per week maximum.

This change allows a bar or restaurant some flexibility and discretion in setting their happy hours to target busy times when the specials may attract more customers. Common criticisms of these changes are that the expanded freedom will permit more drinking during those hours and possibly lead to an increase in driving under the influence offenses or accidents.

These changes are likely another step by the state to modernize the current liquor code, which was originally passed in 1951. While it has been updated and amended numerous times since then, many who work with the liquor code on a regular basis complain that it has become outdated. Whatever the reason, the expanded happy hour allows those who hold a liquor license to exercise some choice over when and how long they want to offer specials for alcoholic beverages

While the expansion of the happy hour restraints have garnered most of the headlines for the recent updates or changes to the liquor law in PA, the same law made some other important changes to the liquor code. One of the more interesting changes was that hotel, restaurant or other public service licensees may sell beer-to-go in either open or closed containers, as long as the municipality where they are located does not have open container prohibitions. This would allow an establishment to sell a draft beer to go or other similar beverage which could be carried out into the street, assuming the municipality of the location does not have an ordinance which prohibits open containers. Finally, the new law expanded the ability for certain types of nonprofit organizations to receive a special occasion permit to allow them to raise funds for their organization.

These changes highlight the fact that the liquor law rules and guidelines can be somewhat complex. If you need help interpreting the law and want to insure you are operating within the law you should contact a lawyer with experience in liquor law matters.

Aaron Zeamer is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. He received his law degree from Widener School of Law and practices in a variety of areas including Liquor Law issues.

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National Small Business Week: May 16-20 2011

This week from May 16 - 20, is National Small Business Week. National Small Business week was proclaimed in 1963 to recognize the positive contributions small businesses make to the United States economy. Here are a few facts about small businesses from the National Small Business Week website:

  • There are an estimated 27.2 million small business owners in the United States.
  • More than half of Americans either own or work for a small business.
  • Small businesses are responsible for creating 60-80 percent of new jobs in the country.
  • Small businesses drive innovation, create 21st century jobs and increase U.S. competitiveness.
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Recent Repeals: PA Residential Sprinkler Systems & 1099 Reporting Requirements

It doesn’t happen often, but sometimes the government realizes that it may have bitten off more than it can chew and reconsiders its actions. Such reassessment occurred twice this past April when both the Pennsylvania and federal legislatures repealed unpopular portions of legislation they had previously enacted. 

On the state level, the legislature repealed a 2009 addition to the state’s Uniform Construction Code which required residential builders to include sprinkler systems in new construction. Some have estimated that sprinklers add $2,000 to $4,000 to the price of an average new residence. Many builders and real estate professionals asserted that the additional cost would depress an already struggling home builders’ market. Thus, last month, the state legislature reconsidered and authorized a repeal of the provision and Governor Tom Corbett signed the repeal into law on April 25.

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Holly Filius Receives Letter of Commendation from Lancaster County Commissioners

On April 27, 2011, Holly Filius received a Letter of Commendation from the Lancaster County Commissioners in recognition of the Central Penn Business Journal's Women of Influence Lifetime Achievement Award. She will formally receive her award on May 16 at the Women of Influence Luncheon. Holly was presented with the Letter of Commendation during the Lancaster County Commissioners' Meeting. The letter acknowledged Holly's commitment to her clients and community,

"With respect and appreciation, the Lancaster County Board of Commissioners would like to congratulate you on being named the 2011 Central Penn Business Journal's Women of Influence Lifetime Achievement Award recipient. We are honored to recognize your impressive career, leadership skills and accomplishments in the business community. You have committed your life to making Lancaster County and all of Central Pennsylvania a great place to work and live." 

Your Band as a Business

On Friday, April 22, Aaron Zeamer, Derek Dissinger and I are looking forward to hosting a workshop at the Launch Music Conference and Festival at the Lancaster County Convention Center. In our workshop we will be discussing the advantages of forming a limited liability company. This 30 minute workshop called, "Your Band as a Business: How to Set Up an LLC and the Benefits of Doing So," will begin at 3:45 P.M.  I wanted to highlight in this post some of the benefits for a band to form an LLC.

For the uninitiated, "LLC" stands for "limited liability company", which is one of several types of entities that can be formed by people to run a business. While most bands think of themselves as artists first but  it is important to address the business issues as well. Forming an LLC takes some effort and time in the beginning but in the long run, particularly as you achieve additional success, it will enhance your credibility and take away some of the hassles that can arise when trying to do business as individuals.

The owners of the LLC are called "members", and the structure of the business is less complicated than that of a corporation. The members can run the LLC themselves or hire a manager. An LLC is formed by filing a Certificate of Organization with the Pennsylvania Department of State's Corporation Bureau. Ideally, the members of the LLC then sign an Operating Agreement, which works as the rulebook for the LLC.

Although an LLC may not be the best solution in every situation, there are several advantages: 

  •  Limited Liability - In most cases, the personal assets of members are protected from the liabilities of the LLC.
  • Tax Pass-Through - Unlike a corporation, an LLC is not taxed at the business entity level. The taxes generally flow through to the individual members.
  • Expenses and Losses - Members of the LLC can take advantage of tax deductions for business expenses and losses that may not be available to individuals.
  • Consolidation - Because an LLC covers all of its members, it streamlines the logistical process of many business activities, such as filing documents with government authorities, entering into contracts and leases, initiating lawsuits on behalf of the members and maintaining company bank accounts.
  • Song Rights and Company Property - The Operating Agreement for the band can be tailored to address who owns the songs and other items of company property and whether a departing member will retain any ownership of the band's music. It can also address how and if a departing member is compensated.
  • Dispute Resolution - The Operating Agreement can also be specifically written to anticipate and provide solutions for disputes among the members that may arise.

The Launch festival starts on April 21st and will run through the 24th. There will be over 200 bands performing over the course of the weekend at various venues throughout the city. In addition to performances there will be various panels and workshops, like ours, for artists to attend. We are looking forward to checking out some of the bands are performing this weekend. 

PA State and Local Tax Also Due on April 18 in 2011

A few weeks ago I shared the good news that the IRS extended the tax deadline to April 18 this year.  If you’re like me, you probably thought, “That’s nice, but two days doesn’t make that much difference so I’ll just have my taxes done by April 15.”  Now that the deadline is fast approaching I’ve been asked by a number of friends and clients if the new deadline also applies to state and local taxes.  The PA Department of Revenue announced some time ago it had also extended the deadline for PA personal income tax returns.  However,  if you check out the homepage on the Lancaster County Tax Collection Bureau’s website you will see they have extended hours on Friday, April 15, but return to normal working hours on Monday, April 18.  They did, however, confirm that taxpayers have until Monday to file individual returns. In addition, taxpayers can now file their Lancaster County returns online.

Despite some information online to the contrary, the instructions for IRS Form 1040-ES lists April 18 as the due date for federal estimated payments as well. Filers who have applied for an extension will also receive a reprieve from the normal October 15 deadline which falls on a Saturday in 2011. Final returns are due on Monday, October 17.

Here are some parting thoughts as you take on the dreaded task of preparing your 2010 tax return.  It was Benjamin Franklin who said, “The only things certain in life are death and taxes.”  I recently read an anonymous quote in response to Franklin’s famous words, “Death and taxes may be certain, but we don't have to die every year."

**When this article was initially posted I did not include information regarding PA State Estimated Tax payments.  According to the PA Department of Revenue website Pennsylvania 2011 Personal Income Tax Estimated Payments are due on April 15.  Please note this deadline has not been extended until April 18.

Pennsylvania Liquor Control Board (PLCB) Looks to Expand Sales

The local news has been talking about the Pennsylvania State Liquor Control Board (PLCB) and its efforts to expand the sale of liquor and wine in the state. There has also been significant talk about Governor Corbett's ideas about privatizing the state liquor stores system. One can't help but wonder if the PLCB is trying to find ways to modernize the state's liquor sales system to avoid losing its control over those sales to the private sector.

A few recent articles have mentioned that the state run stores will expand Sunday hours to additional stores and increase the Sunday hours past 5 p.m. Another, more modern approach is to allow consumers inside of Pennsylvania to be able to have wine purchased outside of the state to be shipped directly to their homes. Currently, the state requires that wine shipped into the state must be sent to a state store, where it can then be picked up by the consumer.

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The Benefits of Underinsured/Uninsured Insurance (UM/UIM) Coverage

In my previous article Full Tort vs. Limited Tort, is it worth the extra money?, I discuss the differences between full tort and limited tort coverage. The world of automobile insurance coverage can be complex and many times confusing. In this article I wanted to talk about another aspect of automobile insurance coverage which, is the importance of and the difference between, uninsured motorists (UM) benefits and underinsured motorists (UIM) benefits.

What is Uninsured Coverage?

Uninsured benefits are similar to underinsured, in that it allows you to recover from your own insurer in a case where the driver at fault for the accident did not carry any insurance coverage. When purchasing an automobile policy, it is easy to assume that every driver out there both has insurance and has sufficient coverage because the law requires everyone to have automobile insurance. However, the reality is that many drivers are not even covered by automobile insurance and many that are covered have the minimum coverage allowed by the law, which in many cases, especially where there has been a serious accident, will not even begin to compensate a victim for his or her injuries, lost wages and other damages.

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IRS Tax Return Deadline Extended for 2011

For most tax professionals and many taxpayers, April 15th stands out every year as the day when tax returns and any related tax payments are typically due. However, this year we will have three extra days to file returns and make payments. 

The filing deadline for 2010 returns has been pushed back to Monday, April 18, 2011. Why? It turns out that Friday, April 15, 2011, is observed as Emancipation Day, a legal holiday in the District of Columbia. Relevant laws state that District of Columbia holidays affect tax deadlines just as federal holidays do because the offices of the Internal Revenue Service will be closed. The April 18th deadline applies to any return or payment normally due on April 15th, as well as to the deadline for requesting a tax filing extension and to making 2010 IRA contributions. Moreover, taxpayers who request an extension will have two extra days to file their returns because October 15, 2011, falls on a Saturday.

As an interesting side note, Emancipation Day celebrates the day in 1862 when President Abraham Lincoln signed the Compensated Emancipation Act for the release of slaves in the District of Columbia. This occurred approximately nine months before President Lincoln issued the famous Emancipation Proclamation. For more information on Emancipation Day, please see the District of Columbia website

Third Circuit Sends Innocent Spouse Relief Case Back to Tax Court: Mannella v. IRS

A few months ago I wrote about a case I argued in the United States Court of Appeals for the Third Circuit. The case concerned whether an IRS regulation requiring taxpayers requesting equitable innocent spouse relief to request the relief within two years was valid. The effect of the regulation is that any request made after two years would be rejected, regardless of how inequitable it would be to deny the request, which I argued was contrary to Congress' intent when the law was passed in 1998.

On January 17, 2011, the Third Circuit released its Opinion which leaves the issue ultimately still undecided. In the appeal, I argued that the IRS's regulation was invalid because Congress intended the section to not have a statute of limitations, but if the regulation was valid, it was subject to "equitable tolling," which means that the statute of limitations would not bar a taxpayer from requesting relief if the taxpayer was prevented from discovering the liability or requesting relief within two years. The court held that the regulation was valid, with Judge Ambro dissenting, and the court sent the case back to the Tax Court to determine if equitable tolling applied to the regulation, and if so, whether the taxpayer was entitled to tolling in the case. I believe the court saw equitable tolling as the preferable result for two reasons. First, it has a similar effect to finding the regulation invalid. It allows taxpayers that file for relief beyond two years to still receive innocent spouse relief if they can show a good reason for doing so. Second, it allowed the Third Circuit to reach this result without disagreeing with the Seventh Circuit, which found the regulation to be valid about six months before our appeal.

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Christina Hausner Receives Pennsylvania Bar Association Pro Bono Award

On December 13, at the Lancaster Bar Association holiday party, Christina Hausner was presented with a Pennsylvania Bar Association Pro Bono Award recognizing  the extensive legal services she has provided voluntarily and without payment to those who are unable to afford them. Chris has actively participated in the Volunteer Attorney Program,  regularly representing income eligible clients referred to her by MidPenn Legal Services, handling over 55 cases since 1989.  While she has handled a variety of  cases over the years,  in this past year she has provided representation to  unemployment compensation claimants exclusively, and has been successful in obtaining benefits for most of these clients.  Russell, Krafft & Gruber is proud of her accomplishment and her dedication to the community.

Christina Hausner is a partner at Russell, Krafft & Gruber. She practices primarily in the areas of Employment Law, Municipal Law, Civil Litigation and Personal Injury.


Derek Dissinger Argues Innocent Spouse Relief Appeal in Third Circuit Court of Appeals

Last week, I argued on behalf of a taxpayer in the United States Court of Appeals for the Third Circuit in Philadelphia against the United States Department of Justice. I originally became involved in the appeal as a law student in the tax clinic at Duquesne University. I drafted the appellate brief that was filed in June 2010, and had the opportunity now as an attorney to argue the case before a panel comprised of Judges Fisher, Ambro, and Greenberg. The court is expected to make a decision within the next few months. 

The issue in the appeal is rather complex, but the main points of the issue are as follows:

  • Congress enacted a broad "innocent spouse relief" provision in 1998. Generally when a married couple files a joint tax return both spouses are liable if there is a deficiency or an underpayment of tax. The statute provides three ways a taxpayer can escape liability if the other spouse was responsible for creating the liability.
  • One of the three provisions allows a taxpayer to seek relief if "taking into account all the facts and circumstances, it would be inequitable to the taxpayer liable."
  • The Secretary issued a regulation that imposed a two-year statute of limitations under the section. No request for relief made after two years will be considered.

In this case, the taxpayer's ex-husband forged her signature on the certified mail receipt of the Internal Revenue Service's Notice of Intent to Levy. The effect was that the taxpayer did not have notice the administrative statute of limitations had begin to run. When the taxpayer was told by her ex-husband that her signature was forged, it was already too late. Her request was less than five months after the statute of limitations had passed. The Internal Revenue Service admitted that had her request been timely, she would have been entitled to receive relief. 

One of the things I argued is that a statute of limitations is invalid because the IRS will not take into account all the facts and circumstances of a request. When there is a statute of limitations, only one factor is considered: time. Therefore under no circumstances, even if it is plainly inequitable to hold a taxpayer liable, will an innocent spouse be able to receive relief. The court did express concern about the harsh results of permitting the regulation. It is a complex issue that has gained national attention since the court's decision will affect taxpayers in New Jersey, Pennsylvania, Delaware and the Virgin Islands, and the decision will likely influence other appellate courts that will have to decide the issue in the upcoming year.

It was an honor to argue before the court regarding such an important issue. The argument was attended by several law school clinics that will be arguing the same issue in the near future. This issue will have broad-reaching implications.  If the court invalidates the regulation, it will be a victory for many taxpayers. It may also lead to other circuit courts likewise finding the regulation invalid. It was certainly the intent of Congress to prevent the type of inequity that a statute of limitations will create. If the court does invalidate the regulation, however, look for the issue to find its way to the Supreme Court next term.

Click here to hear the audio for the oral argument.

Full Tort vs. Limited Tort, is it worth the extra money?

When a client comes into my office with a potential personal injury claim involving an auto accident, many times one of the first questions I'll ask is whether that person had full tort or limited tort insurance coverage at the time of the accident. And in many of those situations, the response I get to that question is "I don't know" or "what's the difference." The difference can be significant. 

In Pennsylvania, insurance providers are required to provide consumers with a choice between full tort coverage and limited tort coverage. Limited tort coverage is almost always cheaper and, because of that cost savings, can affect the choice an individual makes. This choice has the potential to cost them significantly should they ever be involved in an automobile accident. 

The difference between limited tort coverage and full tort coverage is that, limited tort coverage permits a person injured in an automobile accident to only recover for his or her out of pocket medical bills, wage loss, automobile repair costs, and other actual monetary loss.  When an individual elects to have limited tort coverage, he or she is foregoing the right to pursue damages in a personal injury claim for pain and suffering and other similar damages, even where you are not at fault. There is a limited exception to this general rule that permits a person with limited tort coverage to pursue a claim for pain and suffering where the injuries they sustained in the accident were "serious." Serious injuries however, are not always clearly defined or proven. Certainly, where an individual requires life saving treatment following an accident, those injuries would be serious and allow full recovery for pain and suffering. The problem is that in the majority of cases, the line that differentiates a serious injury from that of a non-serious injury is less clear.

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Clock Ticking on Pennsylvania Tax Amnesty

Since April 26 of this year, the Pennsylvania Department of Revenue ("PADOR") has been granting amnesty to anyone who pays their delinquent state taxes. Such amnesty was authorized by the Pennsylvania Legislature through Act 48 of 2009 in an attempt to raise sagging state revenues. Through the tax amnesty program, the PADOR is waiving all of the penalties and half of the interest accrued on those delinquent taxes. However, unless it is extended, the amnesty period will end on June 18.

The amnesty generally applies not only to individuals, but businesses, estates and any other tax-paying entities owing delinquent state taxes as of June 30, 2009. Applications for amnesty can only be made on-line, as no paper applications are available. However, payments can be made through a variety of methods, including electronic funds transfer, credit/debit card, check or money order. Cash is accepted, but only if delivered in person to the Department of Revenue’s Harrisburg District office which is located in the lobby of Strawberry Square. Once an application is submitted, a payer may make multiple payments during the tax amnesty period in lieu of one lump sum payment. For more information, please see the Pennsylvania Department of Revenue’s Tax Amnesty homepage.

2009 Tax Deduction for 2010 Haiti Earthquake Donations

The tragic events recently suffered in Haiti have spurred millions of dollars in donations from American taxpayers to relief agencies devoted to helping earthquake victims. Through special legislation enacted on January 22, 2010, those taxpayers will generally be able to claim those deductions on their 2009 returns. It is hoped that the immediate benefit will spur even more current donations.

However, there are some limitations. 

  • First, because donations to qualified charities are considered itemized deductions, the new provision will be unavailable to taxpayers who utilize the standard deduction. 
  • Second, qualifying contributions are limited to cash and do not include property donations.  Qualifying  cash contributions can be made by text message, check, credit card or debit card. 
  • Third, to qualify, donations must be made specifically for the relief of victims in areas affected by the January 12, 2010 earthquake in Haiti, and they must be made after January 11, 2010 and before March 1, 2010. 
  • Fourth, the donations must be made to bona fide, qualified charities. The IRS maintains a database of such charities, but many churches and government agencies qualify even though they are not listed. 
  • Please also note that donations to foreign organizations are generally not deductible. 

Finally, it is also important to keep a record of your donation. For donations by text message, the phone bill will suffice as long as the name of the charitable organization is listed.

Legal Humor for the Holidays

'Tis the season to be jolly, at least that is what we are told. With the stresses that accompany last minute shopping, crowded malls, rising credit card debts and dysfunctional family members, finding that holiday jolliness can be difficult at times. To help you find that holiday joy, I have combed the web for some light-hearted legal bits related to the holiday season. And yes, you may find this hard to believe, but sometimes lawyers can actually be funny. Admittedly, it doesn't happen often, but it does indeed happen.

  • "The Night Before Christmas" in legal-speak. Sadly, this piece is not that big of an exaggeration as to how lawyers write in legal documents. There's also an alternate version.
  • In the same vein, here is a politically correct and legalese version of a Christmas card  and a holiday email, both from an attorney.
  • Want to rock around the Christmas tree lawyer style? Then this website is for you! I'll bet these CDs just fly off the shelves. Seasons Briefings!
  • Ever wondered what it would be like to see the detectives on "Law and Order" interrogate Santa? You're in luck -- here you go! I hope Santa was read his Miranda warnings or his confession may be inadmissible in court.
  • Here's an amusing Christmas letter from a lawyer's son. I have a feeling this kid is going to end up with lumps of coal in his stocking.

From all of us at the Lancaster Law Blog, Merry Christmas, Happy Hanukkah and Season's Greetings!

Navigating the New Parking Pay Stations at the Lancaster County Courthouse

I had my first encounter with Lancaster's new parking meter pay stations yesterday when I went to the Courthouse. As you may know, the Lancaster Parking Authority is in the process of removing the standard parking meters that take only coins with parking pay stations. You need to note the number of your parking space (generally painted on the street at the space), look for the pay station in the block and pay for parking in advance at the pay station. You can use coins, dollar bills or credit cards. I was unable to get the credit card feature to work, and my initial reaction was disappointment that you cannot use $5 or $10 bills, only ones. Still, this is better than taking a boatload of quarters with you to plug a meter.

Cost is still the same, $.25 per 12 minutes in the downtown area, vs. the parking garages that charge $2 for the first hour and $1 for any hour or part thereof after. So an hour at a meter is $1.25 up to 2 hours, which is the maximum parking time, or $2.50. In the garage, 2 hours will cost you $3.00. However, if you're going over 2 hours, one of the garages is a better deal. 

One feature of the new metered parking is that you can add money/time to your space from any pay station, not just the one closest to your car. So if you are at a meeting or hearing blocks away from your car, you do not need to return to your parking space to add money/time for your meter.

What we used to call the King Street Garage (next to Watt & Shand) is now the Penn Square Garage. Since the Marriott and Convention Center opened, spaces on the lower levels are reserved for either Marriott valet parking or Marriott overnight guests. Here's a tip we got from someone who improperly parked in one of the spaces designated for valet parking - don't! A large sticker that is just about impossible to remove will be put on your windshield.

If you're in town for a proceeding at the Courthouse or Domestic Relations, it's probably best to park in a garage. It is likely that no matter how abbreviated you think your hearing or appearance will be, it will take longer than you estimated, you will not put enough money in the meter, and you will then be faced with a $10 parking ticket. (If you ignore the ticket, the fees will just escalate.) 

For the Courthouse, the closest parking garage is the Duke Street Garage or the Penn Square Garage. For Domestic Relations, it's the Duke Street Garage or the Prince Street Garage. If you know that you will be in town all day, and don't mind walking a couple of blocks, use the Water Street Garage that has a $5 flat fee for all day parking.

When a Hole in One Becomes a Legal Issue

Last week I had the opportunity to get out of the office and enjoy an afternoon playing golf. I was invited to play in the Lampeter-Strasburg Football Booster Club Golf Tournament at Meadia Heights and it was a great event that supported a worthy cause. During the dinner that followed the tournament, an interesting conversation arose regarding the hole sponsors and the prizes offered for things such as a hole in one. In this event, as in many golf tournaments, a car was offered as a prize for a hole in one on the par 3, 18th hole. The owner of the dealership who offered the prize was seated at our table and commented on the importance of removing the car and the signs offering the prize from the course immediately following the tournament. This caused some to look at me and ask why. 

In fact, Pennsylvania Courts have addressed this issue a number of times and the Court has taken the position that if a prize (cash or a car) is offered in exchange for the performance of an act (hole in one), then a valid contract exists and when the hole in one is made, the prize must be awarded. This is true even where the person who makes a hole in one is not part of the original tournament in which the car was offered. If it cannot be determined from the sign offering the prize that it is limited to a specific time or a specific tournament, then anyone who performs the act of making a hole in one is eligible to claim the prize.

Not all of the judges who heard this case, however, were in agreement that the car should be awarded for the hole in one. In fact, Judge Zoran Popovich wrote a dissenting opinion in the case mentioned above and it was his opinion that the act of hitting a hole in one is such a chance event in which skill is an almost irrelevant factor, that when you combine the chance or luck event of hitting a hole in one with the entry fee of the tournament and the prize of giving away a car for a hole in one, that you have all the necessary elements of gambling, which is illegal in this fashion in the State of Pennsylvania. I am sure those who have had a hole in one take issue with Judge Popovich's opinion that little or no skill is involved. 

Fortunately, or unfortunately, depending on your perspective, this issue was not of concern at this tournament as no one hit a hole in one at Meadia on Monday. Thanks again to the Lampeter-Strasburg Football Booster Club, the tournament organizers and the L-S football players and cheerleaders. It was a great community event.

For all of our readers who are golfers, check out this interesting video of a shot made by Vijay Singh during a practice round on the 16th hole at Augusta National. Is it skill or luck – I’ll let you be the judge.


East Lampeter Township Agricultural Land Use Issue Decided by Pennsylvania Commonwealth Court

East Lampeter Township lost its appeal to the Pennsylvania Commonwealth Court in the case of In Re: Agricultural Security Area in East Lampeter Township.  The case is an ongoing battle between the township and a group of Amish farmers who wish to create an Agricultural Security Area (ASA) for their properties in East Lampeter Township, Lancaster County.  In 2007, the farmers petitioned the Township to establish an ASA as permitted by the Agricultural Area Security Law. The farmers wanted the Township to designate an area encompassing 13 farms as an ASA.  After the petition was filed, the Township Planning Commission recommended that all but one of the properties be included in an ASA. However, after two public hearings were held, the Board of Supervisors concluded that the ASA was not necessary. Specifically, the board determined that the Township had adopted planning tools that would prevent inappropriate development of agricultural lands.

The farmers appealed to the Lancaster County Court of Common Pleas and a two-judge panel reversed the Board's decision, giving the farmers their first victory. On appeal to the Commonwealth Court, the Township argued that it had the discretion under the Agricultural Area Security Law to decide whether to create the ASA. The Pennsylvania State Association of Township Supervisors (PSATS) also weighed in on the appeal, contending that the General Assembly intended to give substantial discretion to the governing body of a municipality with respect to the creation of an ASA. The Commonwealth Court, indicating that the Lancaster County judicial panel adequately considered the issues, disagreed and affirmed the decision, giving the farmers another victory. Some additional details about the case are outlined in a June 2 article in the Lancaster New Era.

The Township could seek review by the Pennsylvania Supreme Court. However, appeals to the Commonwealth's highest court are discretionary and the court refuses the majority of requests for review. Only cases presenting novel questions or questions of first impression are accepted for review.

This case could set a precedent for agricultural landowners across Pennsylvania. If a governing body rejects a petition for an ASA and does so for reasons not enunciated specifically in the statute, the decision could be challenged.

Child Labor Laws and Jon & Kate Plus 8

Lately, everywhere you look you can find news about “Jon and Kate Plus 8” from Berks County. It is one of the top stories on WGAL’s website today and the Sunday News featured a story on the front page about their former home in Lancaster County. While I tend to tire of the inundation of celebrity news these days, I did find the issue of PA Child Labor Laws somewhat interesting. I will not add to the debate with a long commentary about the Gosselin’s personal lives or the show’s ratings, however, because of the local interest I did take a moment to pull up Pennsylvania’s Child Labor Laws. The PA Department of Labor and Industry (L&I) is reportedly investigating a complaint and many mainstream and tabloid news organizations anxiously await its conclusion. In Pennsylvania, the minimum age for employment in theater, modeling and television is seven. Minors and infants may be in the cast of a motion picture if a special permit is obtained. Reality TV was nonexistent when our child labor laws were adopted so it will be interesting to see if they conclude that the Gosselin’s home is a “set” and the children are “performers”. Section 7.1 of the PA Child Labor Law Act is rather limited even for more traditional media productions. Contrast the California Child Labor Law which has a lengthy Entertainment Section with specific guidelines for children of different ages. With the current popularity of Reality TV, states may need to update or clarify Child Labor Laws to specifically include or exempt these types of productions.

Willow Valley Resort could have Liquor License by Fall 2009

In his post on May 20, Matthew Grosh addressed the effect of the referendum lifting the alcohol sales ban in West Lampeter Township.  Yesterday morning an article in the Intelligencer Journal addressed some of the same issues. As there is a significant amount of local interest in this issue, I would like to provide some additional clarification regarding the process of obtaining a liquor license.

There are several types of liquor licenses available in Pennsylvania, including retail, specialty and hotel licenses. Many establishments that serve alcohol hold retail licenses, which are subject to Pennsylvania Liquor Code quota requirements. The Liquor Code limits the number of retail licenses to one per each 3,000 residents of a county. This quota often requires entities seeking to obtain a license to purchase an existing license and subsequently transfer it from the current owner. If the license is owned by an establishment in a different municipality, approval by the municipal governing body is required prior to approval by the PLCB. An inter-municipal transfer adds time and expense to the process of obtaining a liquor license.

Hotel liquor licenses are not subject to quota requirements. In order to obtain a hotel license, the licensee must meet criteria specific to hotels, including maintaining a certain number of guest rooms based on the population of the municipality. Representatives from Willow Valley have indicated that the resort will apply for a hotel liquor license. This allows Willow Valley to apply directly to the PLCB for the license, rather than having to purchase an existing license and request approval from the Township Board of Supervisors for the transfer of the license from a neighboring municipality. 

If Willow Valley begins the application process in the near future, it is very possible that it will be serving alcoholic beverages by this fall.

West Lampeter Township Lifts Liquor Ban

On May 19, 2009, voters in West Lampeter Township overturned a ban on alcohol sales that had been in effect for 74 years. While the referendum had primarily been sought by the owners of the Willow Valley Resort, alcohol sales will now be allowed in the entire Township. Does this mean that bars and beer distributors will start popping up all over the Township? Based on our experience in representing restaurants and other liquor license holders, we do not believe such a result will occur.

In Pennsylvania, in order for anyone to open a business that sells alcohol, they must obtain a liquor license from the Pennsylvania Liquor Control Board (PA LCB). The process involves a detailed analysis of not only the owners and managers of the business in question, but also of the property in which sales are to take place. If those persons or premises do not meet the PA LCB standards, the license will not be approved.

Additionally, section 4-461 of the Pennsylvania Liquor Code generally puts a cap on the number of licenses issued in a particular county that is based on population, although there are exceptions for golf courses, bona fide hotels and other public venues. Because Lancaster County is usually at or near its cap, licenses will likely have to be purchased from another license holder, usually for a significant price. The license will then have to be transferred into the Township, which will be subject to the PA LCB's approval and the Township's zoning ordinances.

There are also protections for people who live near a proposed location for alcohol sales. For example, certain eligible individuals and institutions within a certain proximity to the location of the intended bar or restaurant can file a protest with the PA LCB. 

Realistically, it is likely that a limited number of restaurants, either existing or new, will be able to meet the standards and afford the costs described above and obtain licenses. There may even be a new beer distributor or two. However, for the reasons discussed above, a flood of bars is unlikely.

Can a Farmer Kill Wildlife to Prevent it From Destroying His Crops?

I think by now, any resident of Lancatser County is familiar with the events in Sadsbury Township where a farmer alleged that he had been attacked by a mountain lion. This situation, although a little different, raises an interesting question, can a farmer kill wildlife on his property to prevent it from destroying his crops?

The answer is: not as a first resort. The Pennsylvania Game and Wildlife Code provides that “before any game or wildlife…may be killed, every reasonable effort shall be made to live trap and transfer such game or wildlife. The trapping and transfer shall be done in cooperation with a representative of the comission." Therefore, according to this statute, failing to first make reasonable non-lethal efforts in cooperation with the Commission before the final steps of destroying the wildlife is a violation of the law. The State is enforcing this law as well, as evidenced by a December 31, 2008 decision in Clinton county titled Commonwealth vs. Gavlock, which resulted in a Clinton County man being fined $500.00 for killing an elk to prevent it from destroying his fruit trees. The farmer conceded that there were non-lethal ways to discourage the wildlife, but he felt he only had one chance to destroy it before it came back to destroy the rest of his trees.

The lesson seems to be, contact the commission and elicit its help before taking matters into your own hands.

State Ok's Executions of the "Mentally Deficient"

The Pennsylvania Supreme Court handed down a decision today which will allow the state to move forward with the execution of a Fayette County man who was found guilty and sentenced to death for the brutal murder of a woman in 2004. James Vandivner had initially petitioned the court preclude the possibility of a death sentence, but the trial court ultimately determined that he could not show that he fit the state's definition of "mentally retarded." The Supreme Court ruled in 2002 that the execution of a mentally retarded person constituted cruel and unusual punishment and was, therefore, unconstitutional. 

This decision is based on the Court's definition of what constitutes mental retardation for purposes of capital punishment. Pennsylvania defines mental retardation as having an IQ score of 70 or lower, having limited conceptual, social and practical skills, and having the age of onset be before the age of 18. In Mr. Vandivner's case, he was unable to produce an IQ test from elementary or high school that showed that his mental difficulties began before he reached the age of 18.

A dissenting opinion issued by Justice Baer raises an interesting question…what about those students who attended a school which didn't have the benefit of testing for mental retardation in school and, as a result, cannot produce some objective evidence of the "age of onset"? Do they not deserve the same protections?