September 2017

Kevin Cornish | September 21, 2017

Failure to pay Condo or HOA dues could lead to excessive penalty fees!

September 21, 2017

Many individuals in Pennsylvania live in planned communities such as townhouses or condominiums. Association dues and assessments, as well as possible penalties and fines, are regularly due from homeowners to the association. If a homeowner fails to make payment, it could lead to liability far in excess of the amount of the actual assessment itself.

If a homeowner fails to make payment, the association is generally permitted to assess penalties and interest for nonpayment. Should non-payment continue, the association may choose to proceed with lawsuit against the homeowner to collect the unpaid assessment. In such a situation, the association will hire an attorney to represent it, at an initial cost to the association.

However, the Pennsylvania Uniform Condominium Act and the Uniform Planned Community Act both authorize the association to receive legal costs and expenses incurred in collecting unpaid assessments. Pennsylvania court have enforced these laws and permitted attorneys fee awards far in excess of the actual assessment. In one case, the Commonwealth Court affirmed an award of over $46,000 in attorneys fees on a case involving a $1,200 assessment. In a recent case, the Commonwealth Court also affirmed an award of over $26,000 in attorneys fees on a case involving an assessment of just over $600.

Homeowners living in a condo or planned community must be cautious when failing to pay assessments as the homeowner could end up being liable for far in excess of the assessment amount. Associations should proceed with collection efforts against delinquent homeowners knowing that it will likely be awarded its attorneys fees incurred in collecting assessments.

If you have any questions about condo or HOA dues, please contact Kevin Cornish, at 610-275-0700 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.

High Swartz | September 21, 2017

High Swartz Welcomes New Estate Planning Attorney

Full-service law firm grows estate planning practice with experienced attorney Mary R. LaSota

NORRISTOWN, Pa. (September 2017) – Full-service law firm High Swartz is pleased to announce that Mary R. LaSota has joined the firm. LaSota concentrates her practice on estate and business planning.

With more than 10 years’ experience, LaSota has built a reputation for providing estate planning for families and offering legal solutions for startups and entrepreneurs across Chester, Montgomery, Delaware and Philadelphia counties.

“She continually strives to provide cost-effective, practical and timely services beyond the typical expectations of a law firm through innovation, communication and entrepreneurship - traits she will bring to High Swartz,” said Joel Rosen, the Managing Partner of High Swartz.

LaSota holds a bachelor’s degree in political science from Kutztown University. She began her legal career as a paralegal, a job she held while attending Widener School of Law. She also holds an LLM in Taxation from Villanova Charles Widger School of Law.

High Swartz LLP is a full-service law firm serving clients in the Delaware Valley and throughout Pennsylvania from offices in Norristown and Doylestown. Established in 1914, High Swartz serves the needs of businesses, municipalities, government entities, nonprofits and individuals. With offices in Bucks County and Montgomery County, the full-service law firm provides comprehensive counsel and legal support to individuals and business entities of all sizes across a broad spectrum of industries throughout Pennsylvania and New Jersey. For more information, go to www.highswartz.com.

Douglas Wayne | September 13, 2017

Workers’ Compensation and Specific Loss: The Medical Evidence Must Establish Permanence

September 13, 2017

by Douglas Wayne

High Swartz is pleased to be able to report a successful appellate defense result for a Workers’ Compensation defendant in a case where a worker claimed a work-related specific loss. Due to our efforts, an incorrect legal conclusion initially reached by a Workers’ Compensation Judge was successfully reversed on appeal.

In Pennsylvania, injured workers who are totally disabled and unable to work are entitled to both wage and medical benefits. An injured worker who sustains permanent above-the-clavicle scarring or the permanent loss of use of a body part may also seek what are called “specific loss benefits.” A claimant who can prove permanent above-the-clavicle scarring or the permanent loss of a body part can receive a lump sum of additional weeks of benefits pursuant to a schedule set forth in the Pennsylvania Workers’ Compensation Act.

In Morocho v. Workers’ Compensation Appeal Board (Home Equity Renovations, Inc.), No. 1393 C.D. 2016 (Pa.Cmwlth. August 3, 2017), the claimant asserted he had sustained a permanent loss of use of his right index finger in a construction accident. The Workers’ Compensation Judge determined that the claimant had sustained the permanent loss of use of his right index finger for all intents and purposes, and awarded specific loss benefits. This ruling was overturned by the Workers’ Compensation Appeal Board, which ruled that the claimant’s medical expert had not adequately addressed the issue of whether the claimant’s right index finger was permanent.

The claimant appealed the Board’s reversal to the Commonwealth Court. The Commonwealth Court accepted the arguments raised on behalf of the employer that the medical evidence presented by the claimant was not adequate to support a finding of permanent injury. The Commonwealth Court agreed with the employer’s argument that the claimant’s medical evidence did not explain the factual significance of the doctor’s diagnosis as they related to the permanence of the claimant’s right index finger injury. A statement by the claimant’s doctor that the claimant “has effectively lost function of his index finger at this time for all practical intents and purposes” was rejected as a legal conclusion that did not constitute factual medical evidence. The Commonwealth Court found that “the distinction must be made between factual medical evidence which can constitute substantial medical evidence to support the WCJ’s findings and legal conclusions which do not constitute such evidence. See slip opinion at p. 8.

As the claimant’s medical evidence did not contain facts regarding the permanency of the finger injury, the Commonwealth Court ruled that it was improper for the Workers’ Compensation Judge to infer permanence. “Without evidence in the record concerning permanency, one can only speculate on this question, which neither the WCJ nor this Court may do. It is Claimant’s responsibility as part of his burden of proof to elicit information about future functionality of his finger so that there is a factual underpinning from which one could conclude that is injury is permanent.” See slip opinion at 8-9. The Commonwealth Court then concluded that the claimant had not carried his burden of proving that he had sustained a specific loss of use of his right index finger. Moreover, the Court denied the claimant’s request for a remand to attempt to establish permanency, finding that a remand was not appropriate where the claimant had been afforded a sufficient opportunity to present evidence during the initial proceedings. Accordingly, the Appeal Board’s order reversing the WCJ’s grant of specific loss benefits was affirmed by the Commonwealth Court.

The Morocho decision has several important lessons. A claimant who is asserting a specific loss must make sure that there is direct (as opposed to speculative) medical evidence made of record supporting a finding that the claimed injury is permanent. A claimant’s testimony about permanence can support a doctor’s opinion, but is unpersuasive unless appropriate competent medical evidence is first presented. A claimant cannot rely on a remand by the appellate courts for the opportunity to present necessary medical evidence that was not presented during the initial proceedings. For the employer, the statutory elements of a specific loss claim must be carefully examined and the claimant put to presenting adequate proof of each and every element necessary to establish a specific loss claim.

High Swartz has considerable experience in defending employers in the defense of workers’ compensation claims. We are proud of our record and results. While past results are not a guarantee of future success, we would welcome a chance to put our workers’ compensation attorneys to work for your business. If you have any questions about workers’ compensation, please contact a High Swartz attorney.

High Swartz | September 8, 2017

High Swartz Awards Scholarship to High School Graduates

Full-service law firm funds $5,000 scholarship in memory of law firm partner’s late spouse

NORRISTOWN, Pa. (September 9, 2017) – Full-service law firm High Swartz is pleased to announce the 2017 recipients of its James F. Doherty Scholarship, awarded to the child or grandchild of a full-time High Swartz employee. This year’s co-winners are Sophia Dantzic, daughter of attorney Douglas Wayne, and Jennifer Keyser, daughter of legal assistant Patty O’ Donnell.

Both students will use the $2,500 scholarship towards tuition at a 4-year college. Keyser, originally from Lower Providence Township, is attending West Chester University majoring in Public Health. Dantzic, originally from Doylestown, is attending Bennington College in Vermont.

The scholarship honors the memory of law firm partner Mary Cushing Doherty’s late husband, James F. Doherty. An employee with Penn Color for 30 years, Jim was a proud chemist and a man of many passions. He loved the study of history, literature, language and more, and was avid bicyclist, competitive trivia master, and a natural humorist. For 30 years, the Dohertys served their church as pre-cana counselors, preparing couples for marriage.

“I am happy to see my husband’s passions celebrated each year with this scholarship,” said Doherty. “Jim valued learning and knowledge. He would be happy to know that Jennifer and Sophia are using this money to help further their educations and follow their dreams.”

Each year, High Swartz offers a scholarship of $5,000 in Jim’s name. It is awarded to one recipient or split evenly between two recipients. Recipients must be either a senior in high school or an older student in college or graduate school, who is planning on attending a trade school, college, or graduate school full-time at the beginning of the current school year.

Applicants are required to write an essay related to one of Jim’s passions. The essays are submitted to the judge’s panel anonymously. The applicants also are evaluated based on their community and volunteer activities. For more information about the scholarship, visit the firm’s website.

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Donald Petrille, Jr. | September 6, 2017

Want a Judge instead of an Arbitrator?

September 6, 2017

by Donald Petrille, Jr.

If you want your case heard by a Judge instead of an Arbitrator - Be sure to read those forms!

The Superior Court of Pennsylvania recently decided the case of Fellerman v. PECO. The case involved a homeowner who alleged a home inspector failed to find a rotting utility pole on his property. The pole eventually fell, causing cables owned by PECO Energy and Comcast to allegedly start a fire on the property. The homeowner was severely injured when he attempted to put out the fire.

The contract between the homeowner and the home inspection company contained an arbitration clause. The arbitration clause took any dispute arising under the contract out of the Court of Common Pleas, and required the severely injured homeowner to arbitrate the matter using a private service. In reviewing the arbitration clause, the Superior Court rejected the idea that personal injury claims resulting from an allegedly botched inspection fall outside the scope of the arbitration clause. The court reviewed the facts pled in the complaint and found that every alleged breached duty and every fact supporting the personal injury claim stemmed directly from the duties the home inspector owed to the homeowners. Those duties stemmed from the home inspection contract, and therefore, the arbitration clause applied to the personal injury case.

In Fellerman, the Court outlines the test as to whether an agreement to arbitrate is enforceable. First, it examines whether a valid agreement to arbitrate exists, and secondly, it had to determine whether the dispute was within the scope of the agreement. Pisano v. Extendicare Homes, Inc., 77 A. 3d, 651, 654 (Pa. Super. 2013).

In applying these principles, the Superior Court gives great deference to arbitration agreements, and cited a 2004 case, Callan v. Oxford Land Development, Inc., 858 A. 2d, 1229, 1233 (Pa. Super. 2004), in which the court stated that “every reasonable effort should be made to favor the agreement unless it may be said with positive assurance that the arbitration clause involved is not susceptible to an interpretation that covers the asserted dispute.”

Fellerman shows that arbitration clauses will be given deference. The main damages asserted by the Plaintiffs are those of personal injury, not of those of damage to real property. While the Fellermans argued that the arbitration clause would only cover damages relating to the real property which were missed by the inspection, the court did not see it this way. The Court believed the whole relationship, including personal injury damages, were governed by the contract, and thus, the arbitration clause.

The Plaintiffs also argued that the language in the contract was difficult to understand and the form itself was smudged. The court did not give any deference to this argument, noting that it is a duty of all parties to a contract to read and understand the terms. There was no allegation that the Plaintiffs could not have negotiated the arbitration clause out of the home inspection contract. Thus, the court reaffirmed the age-old notion that it is always important not only to read, but to understand, any legal document before starting what could be a long, difficult and adversial relationship.

If you have any questions about arbitration, please contact Donald Petrille, Jr., at 215-345-8888 or via email at dpetrille@highswartz.com.