January 2009

The financial tsunami that has passed over us since last September is bringing with it changes in tax laws. Existing law regarding the federal estate tax is surely one of those areas of the law that is bound to reflect the new conditions. Under the so-called Bush tax cuts, the federal estate tax was due to be phased out in 2010. Given the political and economic changes, that is not likely to happen. Accordingly, stay sensitive to the amount of the so-called equivalent exemption, or the amount of the credit that each of us is given against the federal estate tax. That equivalent exemption is currently $3.5 million and may be kept at that level or changed when Congress acts some time before December 31.

Another area to watch is that relating to health care powers of attorney and living wills. Currently, these documents are optional. People’s reaction to the documents can vary depending upon their moral and ethical beliefs. Given the high cost of medical care, particularly in the last days of life, there is increasing discussion about some way of making Medicare coverage contingent upon a person having a Living Will or Advance Directive, or at least about giving a credit toward Medicare Part B premiums to people who have such documents.  Since the content of these advanced directives can vary somewhat from state to state, and involve a person’s moral, ethical and religious beliefs about the difficult subject of end-of-life decision-making, such change is certain to be controversial.

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?

Early in 2004, the Pennsylvania DUI laws were given a major overhaul, including significant changes to the penalties imposed. While the old laws differentiated penalties depending on whether offenders had prior DUI convictions, they did not take into account the blood alcohol content (BAC) of the offender. The new laws changed that, creating a somewhat complicated matrix using both factors. In addition, the lowest BAC to invoke a DUI charge was lowered from .10% to .08%. Alcohol affects everyone differently understanding how quickly drinking alcohol affects your BAC can help you prevent a DUI charge.

If someone is charged with DUI, their first step should be to determine if they qualify for ARD (Alternative Rehabilitative Disposition) which will allow them to avoid many of the mandatory penalties. 

Once it has been determined that ARD is not an option, the next step will be to establish where on the sentencing matrix the offender would fall if convicted. The sentencing guidelines first separate DUI offenses into three tiers that are primarily based on the BAC of the offender:

  • Tier One, known as "general impairment BAC", is applied where the BAC is at least .08% and no greater than .099% and no accident involved; 
  • Tier Two, "High Rate BAC", is applied where the BAC is at least .10% and no greater than .159%, where a minor is charged, where there was an accident and the BAC would have been in the Tier One category, or where a commercial or school vehicle was being driven;
  • Tier Three, "Highest Rate BAC", is applied where the BAC is equal to or greater than .16%, where a controlled substance such as marijuana or cocaine is also detected, or where a driver refused to take a BAC test.

Continue Reading Mandatory DUI Penalties in Lancaster County

Location isn’t just important when you’re looking to buy a home, but also when you may be thinking about a divorce. The practice of one party filing a divorce in a far removed county from the residence of either party, which could be the result of low filing fees or the desire to place the divorce action in an inconvenient forum for the other party was dealt a lethal blow by a recent Pennsylvania Superior Court decision. The court established that venue, or the proper court in which you must file for divorce, must be established in court and "on the record" and it is the obligation of the trial court to do so. Venue can be established by residence, written agreement of both parties attached to the Complaint or otherwise made a part of the record, or through participation of both parties in the divorce action as required by other Pennsylvania Rules. Strict compliance is required to establish proper venue and a Divorce Decree issued not in compliance with the above rules can be vacated.

Divorces can not be filed in non-residence counties except with the consent of both parties. While there are occasions where parties may desire to have the divorce action conducted in a county not of their residence, perhaps for privacy reasons, the consent of both parties is required. It is advisable for both attorneys and parties filing for divorce to carefully consider whether it is appropriate to bring an action for divorce in a county where neither party resides. 


There are essentially two types of divorce in Pennsylvania, fault and no fault. A fault divorce requires one spouse to prove the other has done one of the following:

  • Deserted him or her without a reasonable cause for at least one year;
  • Committed adultery;
  • Entered into the marriage while he or she was married to another;
  • Endangered the life of the other spouse;
  • Sentenced to a term of imprisonment for two or more years; or
  • Committed indignities to the other spouse such that his or her life is intolerable and burdensome.

This type of divorce generally requires a hearing and the presentation of evidence by the “innocent” spouse in order to prove that one of these things has occurred.

By contrast, a no fault divorce can be granted in the following situations:

  • Where one spouse has been institutionalized for the 18 months before the divorce is sought and where there is no prospect of that spouse being released from the institution for an additional 18 months;
  • Where both Parties agree that the marriage is irretrievably broken and 90 days have passed since the start of the divorce action; or
  • Where one Party believes that the marriage is irretrievably broken and the parties have lived apart for at least 2 years.

A no fault divorce does not necessarily require either of the Parties to prove why the marriage has failed, only that the Parties have no real possibility of reconciliation. Most divorces in Pennsylvania are no fault divorces.

A Power of Attorney is a document in which a principal appoints an agent to transact a variety of duties. The "principal" makes the appointment. The "agent" is the person appointed (also called an "attorney-in-fact" or "power of attorney").

The agent has a fiduciary duty to the principal which means that he or she owes the principal a high standard of loyalty and care. That fiduciary relationship includes the following duties: 

  • Exercising the powers for the benefit of the principal.
  • Keeping separate the assets of the principal from those of the agent.
  • Exercising reasonable caution and prudence.
  • Keeping a full and accurate record of all actions, receipts and disbursements on behalf of the principal.

The most useful powers of attorney give the agent broad authority so that the agent can do virtually any kind of business transaction on behalf of the principal. For that reason, the person whom you select as your agent is of utmost importance.

In years past, persons who did not know of another person whom they wanted to entrust such authority would appoint a bank. For many people, that is no longer possible. Many of the larger, regional banks will not serve as attorneys-in-fact. They will serve as agents under agency agreements but generally the authority under those agency agreements is not as broad as under a general power of attorney.

Your selection of a capable agent should be someone who is scrupulously honest, maintains good records, understands his or her responsibilities, is wise enough to know his or her limits and is able to rely on competent persons for advice (e.g. investment advice).

Without the power of attorney (or revocable living trust), in the event of incapacity, you will be at the mercy of whomever the court appoints as guardian of your estate after an incapacity proceeding in court that can be long, expensive and emotionally draining for those involved. 


In my previous post, ARD in Lancaster County – Advantages of the Program for First Time DUI Offenders, I discussed the benefits of the ARD program. But, in order to take advantage of the program, the applicant must qualify. Applicants will not qualify for ARD if any one of the following is true:

  • the applicant has a prior DUI conviction or has been accepted into the ARD program within the last 10 years from the date of the current offense, or the applicant has more than one prior DUI or ARD
  • there was an accident in which someone was killed or seriously injured
  • there was a passenger under 14 years of age in applicant’s car
  • the applicant’s license was not valid or not in good standing
  • the applicant had no or inadequate automobile insurance
  • the District Attorney determines that the applicant has an extensive record of driving violations (there is some subjectivity to this factor)
  • the applicant’s blood alcohol content was .24% or higher

In addition, if the applicant’s blood alcohol content is unknown because they refused the BAC test or their actions were deemed a refusal of the test, they must agree to not file or discontinue any appeal of the resulting license suspension to PennDOT.

In some limited cases, exceptions can be made. On those borderline cases, the Lancaster County District Attorney’s Office periodically conducts an ARD panel in which applicants and/or their attorneys can present their cases. However, there is no guarantee of the outcome.

It should be noted that there are many strict time limitations and requirements that need to be met when applying for ARD. Some of the initial requirements must be met within 30 days of the charges being filed. The risks of being denied ARD for failing to meet those requirements justify using an attorney to help guide you through this process. 

Finally, despite the advantages ARD provides, please let me state for the record that the best way to avoid DUI charges is to avoid drinking and driving altogether. Please click here for some statistics on the dangers of drinking and driving.


A reader recently asked if it is legal for an employer to cut an employee’s hours and assign work instead to an employee who is newly hired.

The short answer to the question is a qualified yes. The exception is if the employer’s action is prohibited by the terms of a collective bargaining agreement if it is a case in which there is union representation. The other exception is if the employer’s treatment of the employee is because of his or her protected class. Protected class includes race, religion, gender, age, disability and national origin.

So, if the boss is assigning your hours to the new hire because the new hire is of a different race, religion, gender, etc., that action could violate local, state and federal laws against discrimination. However, seniority, in and of itself, is no protection unless pursuant to the terms of an employment contract or collective bargaining agreement.


Almost everyone can tell me what each letter in that acronym DUI stands for: Driving Under the Influence. However, I’m willing to bet that the same is not true for ARD. So, what is ARD and how does it work?

ARD stands for Alternative Rehabilitative Disposition and is a program that is generally available for first time DUI offenders. The program subjects the participant to the equivalent of probation for a period of at least a year. During that time, the participant will, among other things, pay certain fines and fees, attend driving safety classes, complete between 35 and 80 hours of community service and attend any required drug and alcohol counseling. Once those tasks have been successfully completed, the District Attorney will dismiss the DUI charges.

There are three significant advantages to successfully completing ARD:

  1. A clean criminal record – Once the DUI charges are dismissed (with the exception of any summary traffic charges, such as speeding or careless driving, that may have accompanied the DUI charges), they can be expunged from your criminal record. Even if they are not affirmatively expunged, ARD is not considered a criminal conviction. Thus, if any form you are filling out asks if you have ever been convicted of a misdemeanor or felony, you can answer no.
  2. No jail time – Almost all DUI charges require a mandatory minimum of jail time upon conviction. ARD, on the other hand, requires no jail time. However, people who fail to successfully fulfill the ARD requirements, or are charged with another crime while in the program, risk being kicked out of ARD. Once that happens, they will be subject to the standard penalties if convicted.
  3. Reduced license suspension – Almost all DUI charges require a drivers license suspension of at least one year. In ARD, depending on the participant’s blood alcohol reading, age or whether there was an accident, the license suspensions are typically 30 or 60 days. It is important to note, however, that driving during either a DUI or ARD suspension is punishable by a minimum of 60 to 90 days in jail and a fine of $1,000.00.