This blog post will cover a couple of updates to the Paycheck Protection Program (the “PPP”) since it launched in April. In the past month, more details have emerged about applying for loan forgiveness as well as the audit risk, disclosure of some PPP recipients, and application deadline.

Extension of Application Deadline

On July 4, 2020, the President signed a new law which extended the application deadline for the PPP from June 30, 2020 to August 8, 2020.  There is approximately $132 Billion left in PPP funds for Borrowers to apply for.

Forgiveness of PPP

How Do I Apply for Loan Forgiveness?

In order to receive loan forgiveness, you must complete and submit the “Loan Forgiveness Application” to the lender servicing the loan.  You must use SBA Form 3508 or 3508EZ or a lender equivalent form.

You may use the EZ form if one of the following is true:

  1. Borrower is self-employed and has no employees; or
  2. Borrower has employees but did not reduce their salaries or wages during the covered period by more than 25% and did not reduce the number of hours worked by the employees; or
  3. Borrower had employees, but did not reduce their salaries or wages during the covered period by more than 25%. AND, due to complying with laws requiring the business to reduce hours or stay closed during the covered period, the Borrower was unable to operate during the covered period at the same level the Borrower was operating its business prior to February 15, 2020.

The lender will review your application for forgiveness and issue its decision within 60 days to the U.S. Small Business Administration (the “SBA”).  After an internal review of the loan and the forgiveness application, the SBA will then remit the forgiveness amount to the lender no more than 90 days after the lender issues its decision to the SBA.

This means from the date of submission of the Loan Forgiveness Application, the Borrower may have to wait up to 150 days for confirmation that their loan is forgiven.  Note: The notification of forgiveness will come from the lender and not from SBA.

When Can I Apply for Loan Forgiveness?

The SBA released an interim final rule on June 22, 2020 which details when a Borrower can apply for forgiveness.  If you have used all the loan proceeds you want forgiven, the rule states: “a borrower may submit a loan forgiveness application any time on or before the maturity date of the loan – including before the end of the covered period [8 weeks or 24 weeks depending on the date you obtained your loan].”

As stated, the rule does permit you to apply for forgiveness early – before the lapse of their respective covered period.  The problem with seeking forgiveness early is the employer forfeits a safe harbor provision that permits them to restore salaries/wages of employees by December 31st to avoid the reduction in loan forgiveness provided.   If you have not reduced the wages of your employees, you do not have to worry about this provision.

Audit Risks

The SBA has not issued any more information regarding a safe harbor for audits, a serious concern for Borrowers as the application required minimal documentation and multiple certifications.

One audit risk is a Borrower must have had economic uncertainty due to COVD-19.   In prior guidance, the SBA did provide a small safe harbor provision for Borrowers.  If a Borrower received a loan under $2 million, the SBA will consider the loan made in good faith based on economic uncertainty and will not inquire further.

This does not prohibit the SBA from auditing a loan under $2 million for other reasons, such as the credit elsewhere certification.  PPP did not require documentation of a lack of credit elsewhere (which SBA disaster loans typically require). Instead, the Borrowers had to certify that they did not have sufficient access to credit.  However, it is unlikely this will be a huge audit risk for Borrowers as traditional lines of credit were difficult to obtain for many businesses during the pandemic.

Disclosure of PPP Loans

On July 6, 2020, the SBA released some data they maintained regarding the PPP loans issued as of July 6, 2020. However, that release was limited to Borrowers who had received loans of $150,000 or more.  For Borrowers who received more than $150,000, the SBA disclosed the name, address, how many jobs retained, and the lending bank to the public.

Here are some interesting tidbits:

  • Approximately 4.9 million loans were issued by the SBA totaling $521 billion dollars.
  • Pennsylvania businesses received PPP funding totaling $20.7 billion. 26,095 loans in Pennsylvania were for more than $150,000.
  • Approximately 85% of Pennsylvania’s PPP loans were worth less than $150,000.
  • Pennsylvania loan recipients reported 1.8 million jobs retained due to the PPP money, data which is self-reported.
  • The average loan size for a PPP nationwide was $107,000.
  • S. Treasury Secretary Steve Mnuchin is encouraging private schools with significant endowments to return PPP funds. Three private schools in Lancaster received PPP loans.
  • A lawsuit was filed on May 12, 2020 in the U.S. District Court in Washington, D.C. to obtain more transparency as less than 15% of all loans issued have been disclosed to the public.
  • The U.S. Catholic Church received approximately $1.4 billion in PPP loans. Of that, the Archdiocese of New York received a loan between $5 and $10 million.
  • The Any Rand Institute received a loan between $350,000 and $1 million.
  • The U.S. Transportation Secretary’s family business (Foremost Maritime) received a loan of between $350,000.00 and $1 million. The U.S. Transportation Secretary is the wife of Senate Majority Leader, Mitch McConnell.
  • Restaurant chains P.F. Chang’s and Chopt received aid of between $5 million and $10 million. TGI Fridays received at least $5 million in PPP loans.
  • Many news organizations received PPP loans including Forbes Media (about $5 million), the Washington Times (at least $1 million), and the Daily Caller (at least $350,000).
  • As of July 6, 2020, over $30 billion in loans were returned partially due to public outcry. However, some loans were returned as businesses weren’t able to meet the original requirements of spending the funds. Those who returned funds include Ruth’s Chris Steak House chain ($20 million), Shake Shack ($10 million), and AutoNation ($77 million).

Laws and regulations remain a moving target for COVID-19-related relief.  As such, the laws and regulations discussed today may change soon.  Please consult with a legal professional regarding the updates to the Paycheck Protection Program if you have any legal concerns.

Nichole Baer is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. She received her law degree from Stetson University, College of Law and practices in several areas, including BusinessCommercial Real EstateEstate Planning, and Estate Administration.

The ability to quickly share information with a large number of people is one of the powerful things about the Internet. But with great power comes great responsibility.

Or at least it should.

Particularly for the major tech platforms, content moderation – making sure the information being shared is accurate – is vital. But for many years, a variety of actors have taken advantage of the lack of oversight to disseminate information that lacks factual basis or distorts the truth. It is a new form of propaganda that can change political thought, what we believe about science and technology, even our behavior with each other.

So how can you protect your business from misinformation being spread about you? You have to learn the rules of content moderation.

Facebook’s Supreme Court

Recently, several tech companies have started looking for ways to prevent or reduce the impact of misinformation spread by users on their platforms. Twitter, for example, prohibits the promotion of political content.

Facebook is taking a different approach.

In November 2018, Facebook committed to creating a supreme court of sorts to be a decision-maker on certain content moderation issues. While the board will be independent, including being funded by a trust, certain types of posts will not be moderated. And Facebook has clearly stated that the board’s decisions will not create binding precedent as would be expected from a court of law.

Then, a few weeks ago, Facebook announced the names of the twenty individuals who make up its content moderation board. Whether these measures will work is anyone’s guess. They are finally taking actions to address the impact their platforms are having on our society, but is it enough?

What Misinformation Can You Stop?

Unfortunately, from a legal perspective, it can be difficult to stop users from spreading misinformation online. However, you can prevent certain types of misuse, like:

  • Content that steals a business’s trademark or copyrighted content
  • Posts that contain objectively false statements (like “I got food poisoning from this restaurant” when the person has never eaten there), and
  • Fake posts by a competing business trying to drive your customers away

But many other statements do not rise to the level where the law can help, like:

  • A negative review from a disgruntled customer, even one that is being unreasonable
  • Posts with subjective statements (like “this is the worst business ever”), and
  • A competitor comparing the quality of its services to your business’s services

Even when you have content that you could stop, enforcement can be difficult if you have to first unmask an anonymous user. And it gets even tougher if the user is based outside the U.S.

Protecting Your Business

So what can you do to help protect yourself? I suggest trying these steps to do your own content moderation:

  1. Make sure you are aware of what is being said about you online. Saving a Google alert for your business or name is a great start.
  2. If you find harmful content, take a close look at the terms of service for the platform where that content is posted. Many companies have their own procedure for trying to get reviews taken down.
  3. If you can post a response to the criticism, think about doing so. But do not argue with the reviewer. Instead, acknowledge the negative feedback and try to take the conversation “offline” by asking them to call you or contact you directly to try to resolve the situation. Remember, you are not responding to try to convince the complaining customer… you are doing so that other people seeing the review see how you responded.
  4. If you are suffering economically because of the post, contact a technology attorney you trust to get more information about whether you might have the basis to file a lawsuit.

For even more information, check out our other blog posts about Technology Law here at the Lancaster Law Blog. Or contact me directly for a consultation about your online criticism nightmare.

Brandon Harter is a litigator and technology guru at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from William & Mary Law School,  advises clients on issues of Civil Litigation & Dispute ResolutionMunicipal Law, and chairs the firm’s Tech Law Group.

The Commonwealth of Pennsylvania received $3.9 billion in aid from the federal CARES Act for the coronavirus pandemic.  In May, the Pennsylvania General Assembly directed $175 million of that aid to the Pennsylvania Housing Finance Agency (PHFA) to provide help to renters and homeowners struggling to make ends meet.  Of that $175 million, $150 million will be used for rent assistance, and $25 million will be used for mortgage assistance.

Applying for Rent Relief

In order to qualify for rent relief:

  1. the applicant must be unemployed after March 1, 2020 as a result of the COVID-19 pandemic or must demonstrate a minimum 30% drop of annual income and
  2. the applicant’s income cannot be higher than the median income for the county they reside in.

PHFA will give assistance on a first-come, first-serve basis, and the deadline to apply is September 30, 2020.

The maximum grant is $750 a month for up to six months for rent due between March 1 and November 30.  They will make payments directly to the landlord.

Applications are now being accepted.  To apply, fill out the three applications located at https://www.phfa.org/pacares/rent.aspx and provide the documentation required.  You must also find your county on the “County Contact List”  to find where to submit your application and who will process it.

The county contact to mail the application and documentation for Lancaster County is:

Lancaster County Redevelopment Authority

28 Penn Square, Suite 200

Lancaster, PA 17603

717.394.0793

rent@lchra.com

http://www.lchra.com

Applying for Mortgage Relief

In order to qualify for mortgage relief:

  1. the applicant must be unemployed after March 1, 2020 as a result of the COVID-19 pandemic or must demonstrate a minimum 30% drop of annual income
  2. the applicant’s income cannot be higher than the median income for the county they reside in
  3. the applicant must live in their home, and
  4. the mortgage must be at least thirty days past due.

The PHFA will give assistance on a first-come, first-serve basis, and the deadline to apply is September 30, 2020.

An applicant can get up to $1,000 a month for a maximum of six months for first or second lien mortgage payments due between March 2020 and December 30.  Payments will be made directly to the lender and may consist of a one-time payment or an initial payment in addition to assistance for future mortgage payments.  The lender may also apply on behalf of the homeowner.

Applications are now being accepted.  To apply, fill out the application located at https://www.phfa.org/pacares/mortgage.aspx and provide any documentation required in the three applications.

If you need any assistance or have any questions about this program, be sure to contact your attorney.

Nichole Baer is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. She received her law degree from Stetson University, College of Law and practices in several areas, including BusinessCommercial Real EstateEstate Planning, and Estate Administration.

Phase 2 of the Lancaster Small Business Recovery & Sustainability Fund opens on Monday, July 20, 2020 at 8:00 a.m. and will remain open until Friday, July 24, 2020 at 5:00 p.m.  Recovery Lancaster is a grant program that is not awarded on a first-come, first-serve basis.  The Phase 2 funding cycle consists of $14,962,092 that the federal CARES Act distributed to Lancaster County.

Who qualifies?

In order to apply, the applicant must be a business that operates in Lancaster County and employ 100 or fewer employees.  The determination of employees is based on a “headcount” and not on FTE equivalents. Part-time employees are each considered one employee for this calculation.

The headcount does include the owner of a business if the owner works in the business, but it does not include independent contractors.

What are the restrictions or disqualifications?

Applicants may receive funding assistance even if the business has received other grants and loans from other sources. However, an applicant is not permitted to apply for this grant if they received a grant in Phase 1 of the Lancaster Small Business Recovery & Sustainability Fund.

Applicants are also not permitted to use these grant funds against costs that were used with another grant or loan program that provided forgiveness (i.e., no double-dipping). Additionally, passive income businesses, such as landlords, are ineligible to apply.

Moreover, a business may be ineligible if an owner has been charged, arrested, or incarcerated for a felony.  If an applicant may be disqualified for these reasons, you should check the program for specific restrictions.

How can I apply?

The application will be located at http://www.recoverylancaster.com, and applicants are strongly encouraged by the Fund to fill out the application online.

Paper applications are only accepted for businesses with fewer than 20 employees, and they must be submitted before the end of business on Thursday, July 16, 2020.  Businesses can pick up paper applications at Trout CPA at 1705 Oregon Pike, Lancaster during normal business hours beginning Monday, July 20, 2020.

In order to apply, the applicants must provide documentation, including but not limited to:

  • EIN or SSN (if reporting as a sole proprietor)
  • NAISC Code
  • Entity name
  • Summary of Goods and/or Services produced
  • Summary of Proposed Use of Working Capital
  • March 1-May 30, 2019 Revenue Statement
  • March 1-May 30, 2020 Revenue Statement
  • 2019 Gross Revenue
  • 2019 Net Profit (or Loss)
  • Copies of the business’s last submitted federal tax return
  • Information regarding the year the business was established, how COVID-19 has impacted the business, and employee headcount from March 1-7, 2020.
  • Payroll report for March 1-7, 2020 if the employer has more than 21 employees.
  • For retrofit, retrofit receipts or estimates

Is there anything else I should know?

Recipients can use the funds to cover working capital costs or for retrofitting expenses incurred or to be incurred after April 15, 2020.  Those costs include payroll, rent, mortgage, supplies, and operating expenses.  The funds may not be used to pay owner compensation or to pay back loans to related parties such as shareholders, partners, or family members.

The maximum cap on the amount awarded to a business shall be based on the business’s number of employees.  The maximum caps are:

1-20 Employees $20,000.00
21-50 Employees $50,000.00
50-100 Employees $80,000.00

Some information will be publicly released, including legal name and d/b/a name of the applicant, municipality the applicant is located, the funding amount requested, and the score result given by the funding committee.   Revenue amounts, operating expenses, and the purpose of the funding will not be publicly released.

Laws and regulations remain a moving target for COVID-19-related relief.  As such, the laws and regulations discussed today may change soon.  Please consult with a legal professional regarding the Lancaster Small Business Recovery & Sustainability Fund if you have any legal concerns.

Nichole Baer is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. She received her law degree from Stetson University, College of Law and practices in several areas, including BusinessCommercial Real EstateEstate Planning, and Estate Administration.

Business owners have by now heard about or read the order issued by Governor Wolf on July 15th which re-imposed or created new restaurant restrictions on the sale of food and alcohol in Pennsylvania.  If you have not yet had a chance to read it, I have copied the press release from the Governor below.

These newly imposed restrictions are in some ways a substantial step backward for operators of bars, restaurants, breweries and distilleries, who have only been able to operate with outdoor seating for a little over a month.  These make an already difficult path forward even more difficult.

Here are some of the more impactful changes:

  • No bar-only establishments. In order to continue operating, an establishment must serve sit-down, dine-in meals or be serving take-out sales of alcohol;
  • No seating at the bar. Bar seating is now absolutely prohibited. All service, both indoor and outdoor, must be at a table or booth.  You should not permit customers to sit at a bar, even if you have partitions in place or if you have spaced out bar seats to be 6 feet apart;
  • No alcohol purchases without a meal. Any alcohol served for on-premises consumption must be in the same transaction as a meal. This applies to both indoor and outdoor seating.  The order does not define what constitutes a “meal,” nor does the liquor code.  How much food a patron must order to constitute a meal is unknown, but it is safe to assume that some food must be purchased to be in compliance with this requirement.
  • No occupancy greater than 25% or 25 people. Occupancy for indoor dining only is now limited to 25% of the stated fire code occupancy. This includes staff.  Indoor events/gatherings may not exceed 25 persons, regardless of occupancy restrictions.  The order does not reduce or otherwise limit outdoor seating capacity, except that bar seating would not be permitted outdoors.
  • No admittance without a mask. Social distancing and masks are required. This is not a change, the Governor’s office previously made this a requirement, but it was again reiterated in his order.  As a reminder, customers are required to wear masks when entering, exiting, or otherwise traveling throughout the restaurant or business.  Customers may remove masks when seated.  Employees and staff involved in the preparation of meals must wear masks at all times.

Increased inspections

Restaurants should also be aware that the State Police Liquor Control Enforcement division has significantly increased its inspections throughout the state.  They have made very public their efforts to conduct large scale inspections and ensure compliance with the current requirements.  Thus far, they have only issued warnings and have tried to educate owners who are not in compliance.

At some point, the Bureau of Liquor Control Enforcement (BLCE) may decide to begin enforcement of these regulations and issue citations. In severe instances, they may even revoke liquor licenses.  Hopefully, those efforts will be targeted at those “bad apples” that refuse or make no effort to comply with the current regulations.

Most establishments have done a phenomenal job complying with the ever-changing directives from the Governor, and those places will hopefully continue to receive warnings for any minor issues.  However, if the increase in cases continues to trend upward, I would expect the state to take more aggressive enforcement action.

Like it or not, the restaurant and hospitality industry is perceived to be a significant reason for the uptick in cases.  While some may disagree with this conclusion and believe it to be unfair, the reality is that a few bad actors in certain parts of the state have caused a target to be placed on the industry as a whole.  Because of that, those in the restaurant industry need to be aware of the current requirements and be prepared in the event an inspection occurs by the BLCE.

If you have any questions about the new guidelines or in general, please don’t hesitate to contact your attorney.

~~~

Pennsylvania governor's seal in gold

FOR IMMEDIATE RELEASE

July 15, 2020

Wolf Administration Announces Targeted Mitigation Efforts in Response to Recent COVID Case Increases

Harrisburg, PA – Governor Tom Wolf and Sec. of Health Dr. Rachel Levine today signed new orders for targeted mitigation efforts in response to the recent rise in COVID cases, primarily in southwest Pennsylvania, but also in other counties in the state, influencing the decision for statewide mitigation efforts for bars and restaurants, gatherings and telework. The new orders take effect at 12:01 a.m., Thursday, July 16, 2020.

“During the past week, we have seen an unsettling climb in new COVID-19 cases,” Gov. Wolf said. “When we hit our peak on April 9, we had nearly two thousand new cases that day with other days’ cases hovering around 1,000. Medical experts looking at the trajectory we are on now are projecting that this new surge could soon eclipse the April peak. With our rapid case increases we need to act again now.”

The mitigation efforts included in the new orders from Gov. Wolf and Dr. Levine include:

Bars and Restaurants

All businesses in the retail food services industry, including restaurants, wineries, breweries, private clubs, and bars, are permitted to provide take-out and delivery sales of food, as well as dine-in service in both indoor and outdoor seating areas so long as they strictly adhere to the requirements of the guidance, as required by the order, including:

  • Prohibition from conducting operations unless the facility offers sit-down, dine-in meals or is serving take-out sales of alcoholic beverages. All service must be at a table or booth; bar service is prohibited.
  • Alcohol only can be served for on-premises consumption when in the same transaction as a meal.
  • Take-out sales of alcohol for the purposes of off-site consumption are permitted subject to any limitations or restrictions imposed by Pennsylvania law.
  • Non-bar seating in outdoor areas (e. tables or counter seats that do not line up to a bar or food service area) may be used for customer seating.
  • Social distancing, masking, and other mitigation measures must be employed to protect workers and patrons.
  • Occupancy is limited to 25 percent of stated fire-code maximum occupancy for indoor dining, or 25 persons for a discrete indoor event or gathering in a restaurant. The maximum occupancy limit includes staff.

Nightclubs

  • All nightclubs, as defined by the Clean Indoor Air Act, 35 P.S. § 637.2, are prohibited from conducting operations.

Other events and gatherings

Events and gatherings must adhere to these gathering limitations:

  • Indoor events and gatherings of more than 25 persons are prohibited.
  • Outdoor events and gatherings of more than 250 persons are prohibited.
  • The maximum occupancy limit includes staff.

Teleworking

  • Unless not possible, all businesses are required to conduct their operations in whole or in part remotely through individual teleworking of their employees in the jurisdiction or jurisdictions in which they do business.
  • Where telework is not possible, employees may conduct in-person business operations, provided that the businesses fully comply with all substantive aspects of the business safety order, the worker safety order, and the masking order.

Gyms and fitness facilities

  • All gyms and fitness facilities, while permitted to continue indoor operations, are directed to prioritize outdoor physical fitness activities. All activities must follow masking requirements as provided by the July 1 order, and must provide for social distancing requirements of persons being at least 6 feet apart, as well as being limited by any limitations related to gatherings.

Enforcement

Businesses and individuals in violation of these orders, issued pursuant to the authority granted to the Governor and the Secretary of Health under the law, including the Pennsylvania Disease Control and Prevention Law, could be subject to fines, business closure or other applicable enforcement measures.

Beginning with a spike in cases in Allegheny County in late June, Pennsylvania has seen cases continue to rise there and in other southwest counties, along with additional select counties in the state.

The state has identified three catalysts for case increases:

  • First, some Pennsylvanians have been ignoring mask-wearing requirements and social distancing when they are visiting Pennsylvania bars and restaurants. There they are unknowingly spreading or picking up the virus.
  • Second is out-of-state travel. Both by Pennsylvanians returning from travel to hotspot states, and travelers visiting our commonwealth from those hotspots.
  • And third, a lack of national coordinationhas resulted in states in the south and west not committing to social distancing.

“The actions the governor and I are taking today are designed to be surgical and thus precise to prevent from repeating the cycle we saw in the spring,” said Dr. Levine. “We have gained a great deal of experience since the start of this outbreak and have learned from best practices from other states as well as counties right here in Pennsylvania.”

Gov. Wolf and Dr. Levine were joined via Skype by Dr. David Rubin, a general pediatrician and director of PolicyLab at Children’s Hospital of Philadelphia. Dr. Rubin and his colleagues developed a unique model, which tracks and projects COVID-19 transmission in real-time across more than 500 U.S. counties with active outbreaks. The model was built to observe how social distancing, population density, daily temperatures and humidity affect the number and spread of COVID-19 infections over time across a given county.

“Over the last few weeks, public health reporting and our team’s modeling work have uncovered incontrovertible evidence that the virus is sweeping quickly into the northeast region of the United States from the west and south—where there has been a failure in some states to practice vigilance in masking and social distancing—and that it has already begun its resurgence in Pennsylvania,” said Dr. David Rubin, a general pediatrician and director of PolicyLab at Children’s Hospital of Philadelphia. “We can halt this momentum in its tracks. Governor Wolf’s measures will help stop the continued spread of the virus into Pennsylvania and its surrounding states, which would threaten the reopening of schools and our economy in the coming months.”

Pennsylvanians should consider that even with indoor dining limited and bars closed for on-premises alcohol consumption, cocktails to-go are still permitted and there is no shortage of outdoor dining options.

Small gatherings of friends in the backyard or at a local park are permitted and children and families are encouraged to responsibility take advantage of one or more of Pennsylvania’s 121 state parks or other local outdoor fitness options, including at local gyms that are following social distancing protocols.

“Children can visit local playgrounds, community pools, and enjoy outdoor activities with family,” Gov. Wolf said. “We want people to spend time together, but to do so while practicing social distancing and wearing masks when required, such as any time you leave your home and are not participating in outdoor fitness.

“We have seen these efforts work during the first wave in the spring, and they will work again if we all do our part. Thank you to every Pennsylvanian for your continued patience and support. I know you are eager for life to get back to normal, and I am, too.”

View the Governor’s order

View the Secretary of Health’s order

MEDIA CONTACT:   Lyndsay Kensinger, ra-gvgovpress@pa.gov

 

Aaron Zeamer is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He practices in a variety of areas, including Business Law and Liquor License matters. Aaron works frequently with commercial real estate agents, brokers, restaurant and bar owners, breweries, distilleries, and wineries to facilitate the sale and transfer of PA liquor licenses.

Any time I can use Schoolhouse Rock to explain a complicated legal issue, I have to jump on it.  Today is one of those days.  On June 9, the Pennsylvania Senate and House of Representatives adopted Concurrent Resolution 836.  The Concurrent Resolution said that the state of disaster emergency due to COVID-19 was over and that the Governor had been directed to issue an order ending the state of emergency.

However, Governor Wolf claimed that the General Assembly did not have the constitutional ability to end the state of emergency.  This argument went very quickly to the Pennsylvania Supreme Court for a decision.

Finally, on July 1, the Pennsylvania Supreme Court said that Concurrent Resolution 836 was not valid.  Why?

Schoolhouse Rock on the Legislative Process

I do not want to discuss any political issues around the Emergency Declaration or the Concurrent Resolution.  It is more important to know the actual legal reasoning behind the Supreme Court’s decision. The best way to understand their reasoning is to think back to the classic Schoolhouse Rock jingle, “I’m Just a Bill“:

I’m just a bill

Yes, I’m only a bill

And if they vote for me on Capitol Hill

Well, then I’m off to the White House

Where I’ll wait in a line

With a lot of other bills

For the president to sign

As this catchy jingle reminds us, once a bill is passed by the legislative branch, it must be passed onto the executive branch to approve or veto.

Presentment: The Power of the Veto

The Supreme Court’s reasoning for invalidating the Concurrent Resolution was that the General Assembly could not “legislate” without giving the Governor a chance to veto their action.  The Court’s decision is wholly based on Constitutional law and the separation of powers between the Governor and the General Assembly.

Justice Wecht’s opinion starts out by saying:

We express no opinion as to whether the Governor’s response to the COVID-19 pandemic constitutes wise or sound policy. Similarly, we do not opine as to whether the General Assembly, in seeking to limit or terminate the Governor’s exercise of emergency authority, presents a superior approach for advancing the welfare of our Commonwealth’s residents.

The Court decided that the General Assembly could not take any action to legislate without giving the Governor a chance to veto it.  This process is called “presentment.”  The Pennsylvania Constitution (just like the United States Constitution) has a series of checks and balances on the powers of the legislative branch (the General Assembly) and the executive branch (the Governor).  Anytime that the General Assembly passes something, it needs to be presented to the Governor to either sign or veto.  The Pennsylvania Constitution allows the General Assembly to override the Governor’s veto with a two-thirds vote of both chambers.

This process is the system of governmental checks and balances that everyone learned in junior high civics class.  Or if you are my age, during Saturday morning cartoons.

The Supreme Court’s opinion talks about events that happened before the birth of the United States.  It quotes James Madison and discusses the origination of the Federal and State Constitutions in 1790.  If anyone is interested in constitutional law, it is an interesting academic read, especially with the Fourth of July coming up.

But the decision boils down to this: the General Assembly’s Concurrent Resolution is actually a “law.”  Because of this, it has to follow the constitutional requirement of going to the Governor to make it effective. Since it did not, the Concurrent Resolution could not end the Governor’s disaster state of emergency.

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 BusinessCommercial Real EstateLand Use, Land Planning and Zoning matters.

The COVID-19 pandemic has turned every profession upside down, including the law. People are in crisis, and they don’t know what they qualify for or what forms to file. After all, trying to keep up with the government’s many changes is a daunting endeavor.

So what is it like right now being a lawyer in a pandemic?

I had the pleasure of sitting down with kid entrepreneur Bud Leggett, founder of Bud’s Outfitters, to answer that question. Bud is the son of Mandy Leggett, president of the Southern Lancaster County Chamber of Commerce.

He wanted to know:

  • Is being a lawyer different in the red phase versus the green phase?
  • How do you go to court virtually?
  • Why do you like being a lawyer in Lancaster?
  • And more!

Find out the answers in Bud’s Interview below:

 

Holly Filius is a partner at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Widener University School of Law and practices in a variety of areas, including Adoption and Family Law.

Soon, most of Pennsylvania will be in the Green Phase of the Governor’s Plan for COVID-19 reopening.  If you are like me, you might be confused about exactly what the Green Phase allows.

It is not a complete return to the good old days of 2019 before we ever heard the words “novel coronavirus.”  There are still restrictions on businesses, gyms, restaurants and public gatherings.  Here is a reminder of what these Green Phase restrictions are, with lots of links to the specific CDC or State requirements.

Open at 50% Capacity

  • Restaurants and bars
  • Hair salons, barbershops, etc. (and by appointment only)
  • Indoor recreation like gyms and spas (appointments are strongly encouraged)
  • Indoor entertainment like theaters, casinos and malls
  • Businesses that were not permitted to be open with in-person operations in the Yellow Phase can have 50% occupancy in the Green Phase

Open with Restrictions

  • Construction
  • Child Care
  • Businesses that were permitted to be open with 50% occupancy in the Yellow Phase are allowed to operate at 75% occupancy in the Green Phase
  • Schools (subject to CDC Guidance)

Other Restrictions

Everyone should supplement these rules for the Green Phase with common sense.  If you feel sick, stay at home.  If you show symptoms of COVID-19, get tested.  If you have had close contact with someone with COVID-19, get tested. If you have the virus or had close contact with someone who has, self-quarantine for at least 14 days. Make sure that all of your employees and visitors understand these rules.

For more information on rules for aquatic facilities, check out my recent blog post here.

Hopefully we will continue to move in the right direction to protect our families and ourselves while we slowly get back to normal.

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 BusinessCommercial Real EstateLand Use, Land Planning and Zoning matters.

COVID-19-related laws and regulations continue to remain a moving target.  The President signed into law the Paycheck Protection Program Flexibility Act (the “Act”) on June 5, 2020, and we posted the highlights on June 9, 2020.  A mere ten days after the passage of that Act, things have already changed, largely due to the U.S. Treasury issuing regulations on June 11th.

Here is a summary of some of the Paycheck Protection Program changes as of June 18, 2020, with the caveat that things will likely change again.

Extension to Apply?  Not so Fast

The Act appeared to extend the application deadline for PPP loans from June 30, 2020 to December 31, 2020.  However, in a joint statement issued on June 8, 2020 by the Small Business Administration (the “SBA”) Administrator Jovita Carranza and the U.S. Treasury Secretary Steven T. Mnuchin, June 30, 2020 will remain the last date the SBA will approve a PPP loan application.

The Use Period is Not Optional

The Act also changed the time period for borrowers to use PPP loan funds from eight weeks to twenty-four weeks.  Experts initially interpreted the Act as permitting borrowers to elect either the eight-week period or the twenty-four-week period.  This understanding has since changed.

Borrowers who received their loans prior to June 5, 2020 are permitted to use either the eight-week or twenty-four-week period. However, borrowers who received their loans after June 5, 2020 are required to use the twenty-four week period.  This restriction is perhaps an error that will be later corrected as it seems contrary to Congressional intent to provide more flexibility to borrowers (not to mention entirely arbitrary).

Additionally, the requirement that the borrowers use the funds by December 31, 2020 remains.  Some borrowers will then have a use period of longer than eight weeks but shorter than twenty-four weeks, depending on when their loan funds.

The New 60% Use Rule is Apparently Not a Cliff

of the funds for payroll-related expenses to qualify for full forgiveness of their loan.  The forgiveness was reduced, but not eliminated, if the borrower utilized less than 75% of funds for said payroll costs.  The Act changed that requirement to 60%, but early interpretations of the Act concluded that it was now a cliff (meaning that there was no availability of partial forgiveness).

This is apparently not the case.  Instead, the First Interim Final Rule provides that a borrower will still qualify for partial forgiveness if they use less than 60% of their loan funds for payroll-related expenses.

Spin the Wheel, Get a Maturity Date!

In another turn of events, also hopefully in error, there are now two minimum maturity dates for PPP loans.  The Act extended the minimum maturity from two years to five years,  apparently for all borrowers.  Unfortunately, this appears to not be the case anymore.

The First Interim Final Rule issued guidance to lenders that loans approved

  • before June 5, 2020 will have a two-year maturity
  • on or after June 5, 2020 will have a five-year maturity.
  • Note: The approval is based on the date SBA assigns a loan number to the loan.

For borrowers who do not qualify for the new five-year minimum maturity date, banks and borrowers can agree to extend the maturity date on the loans to a period longer than two years.  However, it is counterintuitive to permit two different maturity dates for the same loan program and, of course, puts all the power in the hands of the banks who already are anxious to get these loans off their books.

Ex-Felons May Now Apply

Prior to June 12, 2020, individuals who had felony convictions within the past five years did not qualify for a PPP loan.  Now individuals with felony convictions can apply so long as the conviction was not within the past year.

However, the five-year restriction remains for those individuals who were charged for certain types of financial crimes, including, but not limited to, robbery, embezzlement, fraud, making a false statement on a loan application, or making a false statement on an application for federal financial assistance.  If the borrower is an entity, the prohibition applies if an ex-felon owns more than 20% of the entity.

Although these may not be the last of the Paycheck Protection Program changes, rest assured that we will continue updating you with what you need to know.

Nichole Baer is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. She received her law degree from Stetson University, College of Law and practices in several areas, including BusinessCommercial Real EstateEstate Planning, and Estate Administration.

The popular Paycheck Protection Program (the “PPP”) created by the CARES Act is coming to an end.  Time is running out to take advantage of this program. The upcoming deadline to apply for a PPP loan is June 30, 2020. However, many banks are requiring applicants to submit their application prior to the June 30th deadline.

  • Citizens Bank is requiring applications for the PPP to be submitted by 4 p.m. on June 17th.
  • Bank of America, N.A. told customers to submit PPP applications by 5 p.m. on June 15th.
  • Ephrata National Bank has not set a deadline but is suggesting that customers submit applications by June 23rd to allow sufficient time for processing.
  • According to PNC Bank’s website, they are no longer taking any additional applications.

Around $130 billion remains available for PPP loans.  Congress has had some limited discussion on what will occur if there are funds still available when the program ends.  Congress may even extend the program until the funds are depleted.  As of the date of this blog post, though, nothing has been determined.

If you have not already applied for a PPP loan and still wish to do so, contact your local bank as soon as possible. Search the Lancaster Law Blog for more information about the Paycheck Protection Program to see if it can help your business.

Nichole Baer is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. She received her law degree from Stetson University, College of Law and practices in several areas, including BusinessCommercial Real EstateEstate Planning, and Estate Administration.