Avoiding Traps for the Unwary in College and School Vendor Contracts

What can an educational administrator do when a vendor performs poorly under a long-term contract?  Unless the college or school has tightened its procedures for contract drafting and approval, the answer may be “not much”.  More than a few educational institutions have tried to cancel contracts with underperforming suppliers – ranging from yearbook publishers to laundry companies to phone vendors – only to confront a form vendor contract lasting far into the future and providing no right to cancel.  Aside from multi-year terms, these contracts may have automatic renewal clauses, technical jargon, and microscopic print.  A non-administrative employee, such as a yearbook or drama faculty advisor or cafeteria manager, may have signed the contract for the school.  This employee may have inadvertently bound the school for years, since the vendor will say (with good reason) that the employee had apparent authority to act for the school.

In this situation, a school has two options – one short-term and one long-term.  The short term option is to renegotiate the specific contract or cancel the contract and litigate a breach of contract case.  Litigation will be costly, but the school will have taken a stand that it will no longer acquiesce to burdensome agreements.

The longer term, practical option is to tighten up on the procedures for drafting and signing contracts.  Here are some steps that colleges and schools can take:

  • Centralize all review, approval, and signature of contracts with the business office.
  • Notify both outside vendors and in-house personnel that business office approval and signature are required for all contracts and that all non-conforming future contracts will be invalid.
  • Insist on shorter term contracts with rights to cancel at will, or for cause, or for either party’s financial distress.
  • End all “evergreen” clauses that renew the agreement automatically if a party misses a deadline for advance notice of non-renewal.
  • Simplify the contract by requiring vendors to put all terms in one document, rather than having separate purchase, license, and service agreements.
  • Resist the vendor’s attempt to burden-shift to the institution through warranty disclaimers or indemnity clauses.
  • Insist that the contract be governed by your home state law. The contract will be performed at your site, and should not be subject to another state’s laws.
  • Insist that all disputes be resolved in your jurisdiction, preferably by arbitration, rather than in a remote location such as the vendor’s home state or city.
  • Use your own standard contracts for outside speakers, concerts, or hosted events such as weddings.
  • Preserve the school’s rights to use intellectual property, such as the right to stream or rebroadcast or copy published items.

It’s also important to make sure that contracts are in plain English.  Pennsylvania’s plain English law applies only to consumer contracts, but this limitation should not prevent a college or school from insisting on a clear, readable contract.  A clear, well written contract should address the basic questions of who (the parties’ identities), why (the reasons for the contract, generally in the recitals), what each party will do, when and where the parties’ performance will take place, and how the goods and services will be delivered and paid for.  Then the contract should address these same questions if it becomes necessary to end the relationship.  Finally, the contract should specify how notice is given, whether the contract may be assigned, and how to amend the agreement, and should state that the written contract is the parties’ entire agreement that supersedes all other understandings.

Most educational institutions are either government units or independent nonprofits, responsible to either taxpayers or donors (as well as accrediting and licensing agencies).  Educational institutions are also businesses, whether or not they regard themselves as such.  Many colleges and schools are the largest employers in their geographic areas.  In addition to imposing cost controls through the bidding process, it makes sense to standardize and streamline the contracting process, so the institution follows sound business practices and is on a level playing field with all its suppliers.

If you have questions about Education Law or vendor contracts, please contact Thomas D. Rees at (610) 275-0700 or trees@highswartz.com. The experienced lawyers in our Education Law practice provide a full range of legal services to educational institutions in Bucks and Montgomery counties, ensuring that our clients can focus on their primary mission.

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.

Contesting a Will – Things to consider

It’s an emotional time. A loved one has just passed away. You are struggling with the final arrangements and receiving the obligatory well-wishes from friends, family and acquaintances.  You take comfort in knowing that your loved one had properly planned her estate.  You believe, based on your close relationship, you know what she included in her plan.A few weeks later, you find out that a person you barely knew is now the Executor of your loved one’s estate, and you find out that you are not an heir, as expected.  After getting over the initial emotional trauma of being overlooked for a gift, you wonder to yourself, “Is this legal?  Did she really want this result?”At this point, you may be looking at a will contest, either before the Register of Wills or before a judge of the Orphans’ Court Division of the Court of Common Pleas.  There are several different types of challenges to a will that may be relevant to your situation:
  1. Forgery – Did your loved one actually sign the will that was admitted to probate, or did someone forge the signature?
  2. Testamentary Capacity – Did your love one have the legal capacity to write the will?
  3. Undue Influence – Did your loved one have a weakened intellect and was in confidential relationship with someone that could have caused her to make changes to her estate plan?
  4. Fraud – Was your loved one a victim of some type of fraud that caused her to change her estate plan?
  5. Legal Formalities – Were all the legal formalities associated with a valid will followed?
In deciding whether to bring an action, there are several other factors you may need to consider.  Do you have standing, or the right to appear before the court because of your interest in the matter, to challenge the will?  How long has it been since your loved one passed?  Were Letters Testamentary (when there is a will naming an executor), or Letters of Administration granted?  Has any legal action been taken?  Has any property been distributed?  If you are successful, will you be any better off?  Is the amount at stake even worth fighting over?Once you have decided you want to bring a will contest, you have to decide who has the authority to decide your challenge.  In many cases, a judge of the Orphans’ Court has the right to decide your issue, but in some cases your case is properly heard in the less formal setting of the Register of Wills.  Both of these are public forums with their own rules of procedure.As an alternative, you and the other people interested in your loved one’s estate may elect to resolve your differences out of court.  If you can come to an agreement, you may need to draft a settlement agreement, and that agreement may need to be approved by the Orphans’ Court.  In other cases, you may wish to hire an mediator or arbitrator to help you reach a settlement.The benefit of these alternative dispute resolution methods, (ADR), is that the parties can reach a resolution faster than the court system, and their filings and evidence are not of public record.  In the case of a mediator, a qualified individual can help facilitate a settlement by informing the parties of the strengths, weaknesses and reasonableness of their respective cases.  In the case of an arbitrator, the arbitrator can make a decision that is binding on the parties.  The downside to these systems is that there are no rights of appeal, and arbitrator/mediator fees can be quite substantial.There are several types of these services.  Sometimes, the parties may elect to use a national arbitration/mediation service.  These groups often have qualified individuals, often experienced attorneys or retired judges, that can hear your case.  They often have high administrative costs and the fees paid to the arbitrators and mediators can be very significant.  In many cases, the local bar association has an alternative dispute resolution, (ADR), section that can recommend an arbitrator or mediator, or the parties themselves may know an experienced person upon whom they can agree.Evaluating the merits of a will contest can be complex.  Understanding what is truly at stake, what can be proven and who should make a decision are difficult legal questions which you should not take lightly.  Make sure you speak with a qualified estates practitioner with litigation experience if you are thinking of challenging a will.If you have questions about a will or contesting a will, please contact Donald Petrille, Jr. at (215) 345-8888 or dpetrille@highswartz.com. Or contact any of our estate attorneys in Bucks or Montgomery Counties. Our Wills, Trusts & Estates attorneys provide comprehensive legal services to assist in all of these matters.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 Partner Mary Cushing Doherty speaks at North Carolina Bar Association

High Swartz partner and chair of the firm’s Family Law practice, Mary Cushing Doherty, was recently a speaker at the North Carolina Bar Association Family Law Intensive CLE seminar on February 1-2 in Wrightsville Beach.Mrs. Doherty presented “Marriage & Divorce in the Golden Years” which discussed the benefits of prenuptial agreements and other financial considerations for adults marrying later in life. She also addressed the impact of recent dramatic changes in federal tax law. The Family Law Section seminar is a 12-hour, program designed for attendees who are family lawyers with significant experience.With a distinguished record of professional and community service, Mary Cushing Doherty has more than 35 years of legal experience in the area of family law. She concentrates her practice on all aspects of marital dissolution and family law issues including divorce, child support, visitation, custody, spousal support and alimony, premarital agreement asset protection, complex property division, and more. Ms. Doherty is an experienced and certified Arbitrator and Mediator. She strives for the amicable resolution of divorce when possible; however, she is a zealous litigator when it serves the best interests of her clients.Ms. Doherty has been a Course Planner and Lecturer for the American Academy of Matrimonial Lawyers since 1990 and for the Pennsylvania Bar Institute since 1985. She also has been a Lecturer for the Pennsylvania Bar Association Family Law Section and Montgomery Bar Association. A highly sought-after speaker in family law, Doherty received the Lynette Norton Award from the Pennsylvania Bar Association Women in the Profession Committee in 2012 and also was one of the Legal Intelligencer’s Women of the Year. She has been named a Philadelphia Business Journal Woman of Distinction, and, in 2006, she received the Margaret Richardson Award from the Montgomery Bar Association, which is presented to a trailblazer who has promoted the role of women in the legal profession.About High Swartz LLP: 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.# # #

Melissa M. Boyd Appointed to the MCAP Board of Directors

High Swartz partner, Melissa M. Boyd has been re-appointed Board of the Directors for the Montgomery Child Advocacy Project (MCAP) for a 3 year term.The mission of the MCAP is to end and prevent child abuse and neglect in Montgomery County through legal services, advocacy and education.. To learn more about MCAP, visit their website at www.mcapkids.comMelissa M. Boyd is a partner with High Swartz LLP. She concentrates her practice on family law including, but not limited to, divorce, pre-nuptial and post-divorce agreements, child custody and support, equitable distribution, alimony, adoptions, protection from abuse and juvenile law. She has dedicated much of her professional career to preserving the rights of children and their families.Ms. Boyd is a fellow of the American Academy of Matrimonial Lawyers, Board member of the Pennsylvania Chapter of AAML and member of the family law sections of the American Bar Association, Pennsylvania Bar Association and the Montgomery Bar Association. She is former Chair of the Family Law Section of the Montgomery Bar Association. Ms. Boyd has been certified as a Family Law Arbitrator by the American Academy of Matrimonial Lawyers.A graduate of Washington College and the University of Baltimore School of Law, Boyd has received the highest possible rating from Martindale-Hubbell, has been named a Pennsylvania Super Lawyer for 8 years, Best Lawyer in America since 2016 and named among the 10 Leaders of Matrimonial Law in Philadelphia.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.# # #

James B. Shrimp presented at the Philadelphia Society of People & Strategy Meeting

James B. Shrimp presented at the Philadelphia Society of People & Strategy, Bucks-Mont LAN Meeting on Human Resources in the new era of social media and #metoo.His presentation focused on the challenges of Human Resource professionals in the ever evolving world of ever-present social media and post-#metoo.  During the seminar, attendees examined and discussed strategies to address and appropriately investigate these new challenges, which include  “political” hostile environment, general loss of decorum, and investigating aged but only recently raised complaints of discrimination and harassment.James B. Shrimp counsels and represents businesses in employment and commercial disputes, including employment discrimination, wage and hour, and restrictive covenants.  Mr. Shrimp also counsels and represents business in Franchise Law and Trademark issues.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 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.# # #

Applying for and Receiving Workers’ Compensation Benefits

Have you suffered a wage loss as a result of accident or injury?  High Swartz attorneys work together to coordinate a strategy to apply for and maximize any disability benefits available to someone who has  suffered a sudden or unexpected loss of income due to illness or injury.As an earlier High Swartz blog in this series indicated, there are a number of potential sources for disability or wage benefits, depending on the cause of the disability and the personal circumstances of the individual. (See, When Unexpected income Loss Strikes Home: What Are Your Options?, December 6, 2017).  A client needs to be advised which benefits are appropriate. Then, those benefits need to be coordinated with any additional benefits available.This article focuses on workers’ compensation benefits. We will discuss what benefits are available through the Pennsylvania Workers’ Compensation system, how to get those benefits, and how those benefits are affected by other available disability benefits.The Pennsylvania Workers’ Compensation Act provides payment of wage replacement benefits, specific loss benefits, and payment of reasonable and necessary medical treatment related to an individual’s work related injury.  Wage replacement benefits are based on two thirds of a worker’s “average weekly wage”. The 2018 maximum weekly workers’ compensation wage loss benefit is $1,025.00.  The wage loss benefit is paid when a worker is temporarily totally disabled.  A reduced benefit may be paid if the worker is partially disabled.  Additional benefits may be paid, regardless of wage loss, if the worker has suffered a specific loss, like a scar or an amputation.  Any of these benefits, or benefit claims, may be settled for a negotiated lump sum under the Compromise and Release process.The employer’s obligation to pay workers’ compensation benefits can arise voluntarily or through litigation.  If the employer voluntarily pays, it will issue a document, usually a Notice of Compensation Payable, describing the nature of the injury and documenting the amount of weekly compensation to be paid.  If the employer does not voluntarily pay, then the injured worker must file a petition to be heard by a Workers’ Compensation Judge.When the employer does not voluntarily pay workers’ compensation benefits, the injured worker is often out of work, without pay. The workers’ compensation litigation process can take up to a year. So,  frequently, an injured worker may apply for Unemployment Compensation, or Short Term and Long Term Disability, and in some cases Social Security Disability.A complete discussion of each of these alternative benefits is beyond the scope of this article, but the point to know is that each of those benefits may be available, but will likely offset, or  be offset by, the workers’ compensation benefit.For instance, if the injured worker is capable of working, but not at her preinjury job, she may be eligible  for unemployment.  The injured worker could collect the unemployment benefits, but then the employer would be entitled to a dollar for dollar offset against any worker’s compensation benefits covering the same period.Similarly, when the employer challenges whether the illness or injury is work related, the employee may apply for and provisionally receive, contractual short term and long term disability benefits.  If the illness or injury is later determined work related, the short term and long term disability benefits may have to be repaid, in whole or in part, depending on the language of the contracts.In addition, once an injured worker applies for short term or long term disability benefits, she may be contractually obligated to file for Social Security Disability benefits (SSD).  The injured worker may receive both Social Security Disability and Worker’s Compensation benefits at the same time without credit or offset, but when the injured worker reaches full Social Security Retirement age (SSR), the SSD benefits convert to SSR, and the employer then takes credit for 50% of the SSR benefits paid against any workers’ compensation benefits.The employer is also entitled to a dollar for dollar credit for Pension and severance benefits, to the extent those benefits are funded by the employer “directly liable for the payment of compensation”.The standards for being eligible for Social Security Disability, Short Term and Long Term Disability, and Unemployment will be discussed in more detail through other High Swartz Coordination of Benefits articles.  The point of this article is to emphasize that an injured worker may be entitled to her workers’ compensation benefits, plus other benefits; but those benefits must be coordinated by knowledgeable legal counsel.High Swartz workers’ compensation and disability attorneys have decades of experience handling both employees and employers in Pennsylvania. Our Bucks County and Montgomery County workers’ compensation attorneys have knowledge and experience in all facets of workers’ compensation and Social Security Disability issues. If you are considering filing a claim, or if a claim has been filed against you, please contact Thomas E. Panzer at 215-345-8888 or tpanzer@highswartz.com. Our attorneys in Bucks County and Montgomery County are here to assist you.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.

Mary Cushing Doherty Named ‘Top Family Law Attorney’ by Suburban Life Magazine

The annual list of Top Family Law Attorneys in Suburban Life highlights the best family law attorneys representing anything from divorce and prenuptial agreements to child support and adoption.Mary Cushing Doherty was spokesperson for the Pennsylvania Bar Association to the Pennsylvania legislature to pass no fault divorce reform in December 2016. She served as the Chair of the Family Law Sections of the Pennsylvania Bar Association and the Montgomery Bar Association and is the former president of the Pennsylvania Chapter of the American Academy of Matrimonial  Lawyers (AAML). Mary has more than 35 years of legal experience in the area of family law, she concentrates her practice on all aspects of marital dissolution and family law issues including divorce, child support, visitation, custody, spousal support and alimony, premarital agreement asset protection, complex property division and more. About High Swartz LLP: 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.# # #