Mediation: Protect What you Bargain For

February 28, 2017

Strengths and Weaknesses of Non-Attorney Guided Mediation

Divorce mediation is an out-of-court dispute resolution tool that helps separating couples who want to amicably settle their issues with minimal involvement of the legal system. A good mediator is one who will guide the spouses during their negotiations, facilitate meaningful dialogue and point the parties away from potential litigation hazards. Many attorneys will encourage their clients to engage in mediation in order to narrow issues or to get an independent view point in areas where there is disagreement. It is recommended that a divorcing spouse look for an experienced mediator and check the mediator’s references before agreeing to use a particular mediator.

Keep in mind that it is not the job of the mediator to look out for each spouses’ interests. Rather, the mediator’s job is to act as a neutral party to facilitate the spouses in reaching their own agreement- even if it is unfair or inequitable in the eyes of his or her lawyer. A mediator is trained to be neutral. He or she usually will not alert or advise if an agreement may be unfair to either party. A lack of knowledge about your spouse’s financial assets, ignorance of the law, and poor negotiating skills can easily cost you tens or hundreds of thousands of dollars when you end getting less than you otherwise would have gotten had retained a divorce attorney. Not only is it advisable to retain an attorney to guide you in the mediation process, it is often times critical so that you don’t end up accepting an inequitable marital settlement agreement or find yourself unable to enforce the terms of your agreement.

The Role of a Mediator and the Benefits of Attorney Guided Mediation

Let us assume that the divorcing spouses have gone though non-attorney guided mediation and have reached a formal memorandum of understanding. Now what? How do the spouses protect that agreement? What if one spouse realizes the terms of the agreement looked good on paper, but are not exactly practical in their application? Under these circumstances, a spouse can find him or herself  in the very situation she or she didn’t want to be in: the spouse now needs to hire a lawyer to help retrace and possibly redo all the steps he or she just took!

In some (but not all) cases, settlement agreements reached at non-attorney guided divorce mediations are poorly drafted with vague terms which make them difficult to enforce. If such an agreement is reached at mediation, the spouses will need to file it with the court in order to enforce the document via Court order. Sometimes, mediators will simply file the agreement as a “Divorce” matter. However, there may be many additional issues addressed in the agreement that should be filed separate and apart from just simply a “divorce” action. If an agreement reached at mediation speaks to a host of issues, but is incorrectly docketed or poorly drafted, there is often little recourse to re-open an executed marital settlement agreement to address the individual terms.

Having an attorney review or draft the document will not only allow the spouses have a clear understanding of the agreed upon terms, but will also ensure that the court is equipped with a well-written, concise set of directions in order to protect and enforce the rights and obligations outlined in the agreement. Spending a little money for an attorney review of any divorce mediation agreement before the mediation agreement is filed with the Court can be a wise investment,

Protecting Your Agreement

Marital Property settlement agreements are contracts. Generally, modification of marital property settlement agreements by the court will only happen if there has been fraud, duress, coercion, or a mutual mistake in the drafting of the order or agreement.  Accordingly, agreements regarding spousal support, alimony pendente lite and alimony are rarely modified by the courts absent a written agreement by the former spouses to modify the documents. This is different than child support or custody arrangements, which remain under the purview of the court and can be altered at nearly any time due to changed circumstances.

Re-opening or seeking to modify a marital property settlement agreement is legally complex and may be rather expensive. In the end, attorney-guided mediation may allow the parties to have their cake and eat it too. Although divorce mediation without attorney involvement can be an effective and less expensive means to foster agreement between divorcing spouses, having an attorney shepherd you though the process to ensure a fair and equitable result can avoid unnecessary expense and heartache down the road.

If you have any questions about mediation, please contact High Swartz at 610-275-0700 or via email at main@highswartz.com.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

 

Can I Expunge My Protection From Abuse Order?

February 21, 2017By Elizabeth EarlyA question that we commonly hear from litigants who are defending or have defended against a Petition for a Protection from Abuse Order is whether the Order can be expunged from their record. The answer is: that depends on how far through the legal system the Protection from Abuse matter progressed.By way of background, a Protection from Abuse Order, or a “PFA Order” as it is more commonly called, is a remedy available to victims of domestic abuse pursuant to a portion of the Pennsylvania statutes known as the Protection from Abuse Act. An individual who is seeking protection under the Protection from Abuse Act must file a Petition setting forth the allegations of abuse and the basis for which the individual is seeking court relief. The Court has the power to enter an immediate, temporary PFA Order upon receipt of the Petition; however, the defending party is entitled to a prompt hearing on the merits of the allegations within 10 days.The entry of a PFA Order is a grave matter. The length of the Order can be for up to 3 years, with the option of extending the Order even longer at the conclusion of the initial period. The Order provisions can be extremely restrictive and life changing, to say the least. A typical PFA Order can include a ban on contact between the parties, an award of possession of the parties’ residence to the victim-party, custody provisions, and the relinquishment of firearms. Violations of a PFA Order carry hefty fines and the very-real threat of incarceration. In short, a Petition for a PFA Order is not a matter to be taken lightly.A PFA Order can also have long-lasting effects on the defending-party’s professional and social life. It is unquestionable that a PFA Order, even if long expired, carries a heavy stigma in society and can be a large burden to overcome in future employment, educational and social endeavors. For this reason, individuals who are facing PFA litigation or are already subject to a PFA Order often wonder what remedies are available to them to remove the PFA litigation and any resulting Order from the court record.Our Superior and Supreme Courts of Pennsylvania have had the opportunity to weigh in on this issue with three published decisions entered from 1997 through 2007. The conclusion reached is that an expungement of a PFA Order is only available where the Order never progressed beyond the issuance of a Temporary PFA Order. In other words, an expungement is not available where there has a been a finding of abuse by the Court and a final Order entered.In the P.E.S. v. K.L. case, a 1998 Superior Court of Pennsylvania case, a Petition for Protection from Abuse was filed, but a temporary Order was not entered. Neither party appeared for the hearing and no further action was taken on the Petition. The Court, influenced by the negative implications associated with a Protection from Abuse record, agreed to dismiss the stale PFA Petition and expunge the underlying record. In 2000, the Supreme Court of Pennsylvania weighed in on this issue in the Carlacci v. Mazaleski case. In that matter, a Temporary PFA Order was issued and continued as a temporary Order by agreement of the parties for a short period of time. After that period of time passed, the parties agreed that the Temporary PFA Order should be declared “null and void.” The Supreme Court of Pennsylvania approved of the Court’s rationale in P.E.S. v. K.L. and approved of an expungement of the underlying PFA record, where, again, there was never a hearing or finding by the Court of abuse and the matter never progressed beyond the Temporary PFA Order stage. The most recent published decision on this issue comes from the Superior Court of Pennsylvania in the Charnik v. Charnik case. In that opinion, the Court declined to extend the expungement remedy to cases where a final PFA Order was entered by the Court after a hearing on the matter.If you are facing a Petition for a PFA Order, it is vital that you speak to an attorney to gain an understanding of the legal ramifications of a PFA Order, your likelihood of success based on the facts of your specific case, alternate solutions to a PFA request, and any long-term expungement prospects.If you have any questions about PFA Orders and procedure, please contact Elizabeth Early at 610-275-0700 or via email at eearly@highswartz.com.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.   

Breaking Down “BYOD” Policies

February 14, 2017The explosion of smartphones, tablets and technology generally, has inevitably resulted in employees performing work tasks on their personal devices.  In the age of the ever present smartphone, and for many, the accompanying compulsion to stay constantly connected, employers and employees find themselves balancing the benefits and pitfalls of employees using their personal phones to conduct their employer’s business.  This has resulted in increased productivity and flexibility and oftentimes resulted in lowering a companies technology costs.  With these benefits, however, come certain risks that a prudent employer should consider and provide for.  The most popular means of addressing these issues is in the implementation of a Bring Your Own Device (“BYOD”) Policy.While there are many concerns an employer must consider in crafting the most appropriate BYOD policy, some of the most common include: data security, employee privacy, theft or loss of device, non-exempt employee usage, and employer liability for employee misconduct.Data SecurityData security is a huge concern for employers and as such this element is crucial to alleviate company concerns that an employee could potentially compromise company data through lax or nonexistent device security.  Similarly, employers justifiably have concerns regarding employees connecting to unsecured Wi-FI hotspots or sharing their devices with other individuals leading to compromised data. Accordingly, employers should consider requiring password protection, automatic locking after a certain period of inactivity, mandating regular backups, restricting access to especially sensitive company information or even using software to create a virtual partition in devices to keep personal data separate from work data.Employee PrivacyA good BYOD policy will clearly set forth the employees expectation of privacy on their personal device that is being used for business purposes.  It is important that after signing the agreement the employee understands what their rights are as to the device and information thereon.Theft/LossBecause phones are lost or stolen with unfortunate frequency, it is important that there be a policy in place that requires employees to immediately report a lost or stolen device. This section of the agreement may also contain a provision regarding the company’s decision to install software that would allow the company to remotely wipe the device in the event it is lost or stolen. Ultimately, all parties should be aware of what will happen to the device in the event it is lost or stolen.Non-exempt employeesBecause the Fair Labor Standards Act requires that non exempt employees be paid for all hours worked, a comprehensive BYOD policy will include a prohibition against off-the-clock email access/work by non exempt employees unless specifically authorized  This ensures that all work performed on the company’s behalf is compensated.  Accordingly, deciding what classifications of employees will be able to use their personal devices for business is crucial. A company must proactively determine how it will handle such situations to avoid exposure under federal and state labor laws.Employee misconductFinally, an employer wants to consider its potential liability if an employee uses his or her personal device to send harassing emails, even outside of work hours.  Because the device is the employee’s personal property, employees may feel more comfortable engaging in inappropriate conduct than they would on company owned property.  This could potentially lead to an employee using social media, texting, or phone calls to defame, harass or otherwise inappropriately treat the company, co-workers, or other related parties.  To address such concerns a policy should reaffirm that the company’s policies prohibiting such conduct apply with equal force to all devices covered under the BYOD policy.There is no one size fits all BYOD policy.  What a Company needs by way of a BYOD policy will be controlled by the type of business,  type of information contained on employee’s device and the availability of IT support to the employer.  Additionally, due to the number of laws that intersect and impact BYOD policies, consulting an attorney to draft such a policy is crucial to the its success.If you have any questions about BYOD policies, please contact us at 610-275-0700 or via email at main@highswartz.com.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation. 

Saving 15% Could Cost You a Whole Lot More – Full Tort v. Limited Tort Automobile Insurance

February 7, 2017By Douglas WayneNo one likes to pay for automobile insurance; it’s one of the few purchases we all make that all of us hope to never use.  As car insurance can be so expensive, it is very tempting to try to save a few dollars up front by choosing what is known as “limited tort” instead of “full tort” insurance.   On the surface, this option looks attractive.  It is tempting when insurance companies tell you that you can save up to a quick 15% on your yearly premium just by checking the “limited tort” box on the application or insurance renewal form and then signing it.   You might think, “I’m a good driver, I haven’t had any accidents, why not save 15% on something I probably won’t use anyway?”    But, as with many deals that look too good to be true, in the long run choosing limited tort over full tort insurance can cost you a whole lot more than 15% of your yearly car insurance premium.Let’s pull back the curtain a bit.   If you are injured in an auto accident, your damages fall into two general categories.  One category is called economic damages.  Economic damages refers to compensation for objectively verifiable monetary losses like lost wages, medical bills, damage to your automobile or other personal property, and similar out-of-pocket expenses.  The other category of damages are called non-economic.  Non-economic losses are not objectively verifiable; these can be damages such as pain and suffering, emotional shock or loss of enjoyment of life.  While non-economic damages cannot be objectively measured, they can often be the largest element of a personal injury claim.   Few of us would think that time spent in a hospital or going to medical and physical therapy appointments is enjoyable.  We do not want to be fearful every time we are in a car, recalling the time  a careless driver was texting, missed a stop sign, and rammed our vehicle.  None of us want to miss out on participating in family events or doing the activities we love because of injuries sustained while another driver was being inattentive.   These non-economic damages can be considerable, and insurance companies dislike paying them because they mean the insurance companies make less profit.The limited tort option was created over insurance company concerns that there were too many lawsuits in Pennsylvania where the injured parties sought and received compensation for non-economic damages.  In other words, limited tort insurance was created largely to protect insurance company profits.  To avoid paying out too many premium dollars to alleviate pain and suffering, insurance companies encourage Pennsylvania drivers to choose limited tort.  With full tort insurance, you can always sue for your full damages.  However, with limited tort insurance, your ability to recover your full damages is limited to when you can prove that you have sustained what is called a “serious injury.”It is the requirement to prove a “serious injury” before an accident victim is entitled to any pain and suffering damages that saves insurance companies so much money.  “Serious injury” is defined as “death, significant deformity, or impairment of bodily function.”  In practice, this means that if you are not dead, disfigured or crippled, your insurance carrier is likely to deny your claim for pain and suffering.  Insurance carriers have denied that broken bones or even herniated spinal discs amount to “serious injuries.”  Maybe you can prove in court that your particular injury was “serious” within the limitations of the law, but it is likely you will not be able to carry this heavy burden of proof.   At minimum, your insurance company will likely use your status as a limited tort policy holder to significantly reduce any settlement offer to you.  The cost of proving that you sustained a “serious injury” will quickly exceed the few dollars you saved in insurance premiums.  Further, in light of the extra burden of proving a “serious injury,” many lawyers will decline to represent limited tort policy holders except in exceptional circumstances.   Finally, be aware that the choice of limited tort insurance by the owner of a vehicle in a household can bind resident relatives, such as spouses and children, to the limited tort choice.  Accordingly, selecting limited tort insurance can limit not only your right of recovery, but those of your family.Like all insurance, cheaper is better until you have to use it.  But the 15% you might have saved on your premiums with limited tort will likely be but a tiny fraction of your losses should you be unfortunate enough to be in a bad car accident that was caused by the fault of another driver.   The emotional pain and physical suffering of being an auto accident victim is difficult enough without your formerly friendly insurance company telling you that your injuries aren’t “serious” enough to justify full compensation, but that you can sue them if you disagree.   The 15% you saved will be small solace when lawyer after lawyer tells you that they probably could have helped you obtain a better recovery, but that your status as a limited tort insured means that it is not economically feasible to take your case.Don’t be fooled by the small upfront savings of limited tort insurance.  Know that the substantial rights you are giving up by selecting limited tort insurance are exactly the ones you are most likely to need should you be injured in an auto accident.  Don’t be victimized twice; once by a negligent driver of another vehicle, and again by an insurance company that has charged you 85% of the premium that could have purchased adequate, full tort insurance but instead sold you inadequate insurance called limited tort.   Ask yourself, “would my insurance company be offering me a 15% upfront discount on my auto  premiums if I select limited tort, if the insurance company ultimately did not save much more money in the long run by not providing me with full tort insurance?”   Please consider the fact that insurance is a for-profit business; insurance companies would not offer limited tort insurance if it was not ultimately more profitable to them to do so.You are encouraged to think of full tort as “adequate” insurance and limited tort as “inadequate” insurance.  Don’t wait until after an auto accident to learn the hard way the valuable rights you have given up by opting for limited tort over full tort insurance.  If you have limited tort insurance, you are urged to call your insurance company today and ask to be sent the paperwork necessary to switch to full tort.  Fill that paperwork out, sign and date it, and please keep a copy.  Or, when your insurance policy renewal comes around, switch to full tort.  You and your family will be glad you did should an auto accident occur.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation. 

Storage Wars – Laws Governing Self-Storage Facilities

February 2, 2017By Kevin CornishHave you ever seen an episode of Storage Wars and wondered, can someone legally sell property in a storage facility?  Or, how can they legally do that?  Storage Wars takes place in California, and I am not here to discuss  California law.  However, Pennsylvania does have a law governing self-storage facilities and the short answer, in Pennsylvania, is Yes, they can do that.In Pennsylvania, the Self-Service Storage Facilities Act, 73 P.S. § 1901 et seq. (“Act”), governs these self storage facilities.  Importantly, the Act provides that the owner has a lien on all personal property stored in the facility.  The lien is superior to all other liens except those that existed prior to the placement of the personal property in the facility.  The rental agreement must inform the occupant of this lien.In the event that occupant fails to pay rent for a period of 30 days, the owner can begin proceedings to sell the contents.  The owner must provide notice to the occupant of the default.  The notice must be delivered in accordance with the Act and contain  items such as the amount due, a demand for payment, a lien statement, a designated person for the occupant to contact, and that the contents will be advertised and sold if the delinquent rent is not paid.  The owner also has the right to deny the occupant access to the space until the delinquency is paid.If the occupant still fails to make payment, the owner can proceed with advertising a sale of the contents.  The owner must advertise the sale two times in a newspaper of general circulation.  There are various requirements for the contents of the advertisement.  Additionally, the sale must occur at least 10 days after the first advertisement.If the delinquent amount remains unpaid, the owner is free sell the contents of the storage facility to satisfy the owner’s lien.  Third parties can bid on, and purchase, the contents of the storage unit.If you are a self-storage facility owner or renter, it is vital to assure that your rental agreements comply with the Act and all legal procedures are followed to sell personal property to enforce the lien.If you have any questions, contact Kevin Cornish at 610-275-07000 or via email at kcornish@highswartz.com.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.