William F. Kerr Appointed to the Habitat for Humanity Board of Directors

High Swartz partner, William F. Kerr, Jr. has been appointed to the Board of Directors of Habitat for Humanity of Montgomery and Delaware Counties, Inc.

“We are very much looking forward to working with Bill, and are very impressed with the skill set he brings to the Habitat Board,” said William McEwan, Vice President.

Habitat for Humanity of Montgomery and Delaware Counties, Inc. partners with local residents to help them build or improve a place they can call home. Habitat homeowners help build or repair their own homes alongside volunteers, resulting in an affordable mortgage. Habitat also provides low cost home repairs, financial literacy and empowerment education, and revitalizes neighborhoods. With community support, homeowners achieve the strength, stability and independence they need to build a better life for themselves and for their families., visit the Habitat for Humanity website at http://www.habitatmontdelco.org.

William F. Kerr, Jr. has more than 22 years of experience in the area of real estate law, focusing on land use, land development and zoning; real estate taxation; real estate transactions; real estate title issues; eminent domain; real estate valuation; and real estate code compliance.

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.

# # #


Leave No Stone Unturned

As stated in previous articles in this series, when faced with unexpected economic harms and losses due to personal injury, it is important to explore — and understand — all legal avenues and options which may be available to seek and secure appropriate benefits and compensation. Depending upon the surrounding circumstances, there may be multiple sources of recovery.  Leave no stone unturned!

When one suffers a disabling injury due to a work incident, the possibility of holding a negligent “third party” responsible should be investigated. Under Pennsylvania law, injured workers may be entitled to medical treatment of an injury and reimbursement of a portion of their lost wages from their employer (or its insurance company), but they are not normally permitted to sue their employers directly for additional compensation for pain and suffering – even when the negligence of those employers is directly responsible for causing the underlying incident.  However, sometimes someone or something else has done something – or failed to do something – which is a substantial factor in causing the injury.  This might be the driver of a motor vehicle, or one who maintains a piece of property, or a construction contractor or subcontractor performing nearby work. That person is called a “third party” — and it is sometimes possible to pursue a personal injury lawsuit against a negligent third party while simultaneously collecting workers’ compensation benefits.

It must be noted, of course, that, if such a personal injury claim is ultimately successful, the employer or its workers’ compensation carrier may be entitled to reimbursement of a portion of the monies it has expended which are related to that injury.  This concept is known as “subrogation” – the legal right of an entity which has paid out benefits in connection with an injury which was caused by a negligent “third party” to be compensated, or re-paid, by that “third party” out of any resulting lawsuit.  Nonetheless, an injured person will always be better off having sought appropriate compensation from all potentially responsible persons and entities – if he or she has a knowledgeable attorney or law firm thoughtfully coordinating the recovery of benefits.

One example of where the possibility of recovery from multiple sources exists is when a worker is injured in a motor vehicle collision while in the course and scope of employment.   Although Pennsylvania’s Motor Vehicle Responsibility Law generally prohibits subrogation, this no longer applies to workers’ compensation matters.  Accordingly, even where a worker has purchased Uninsured (UM) or Underinsured (UIM) coverage through his or her own motor vehicle insurance company, and rightfully seeks recovery under the terms of that policy, he or she must be aware of a right of subrogation on the part of the workers’ compensation carrier.

Another example of where the possibility of recovery from multiple sources exists is when a worker is injured in a “slip and fall” incident which was caused by a negligent “third party.”  It has been estimated that more than one million people are injured each year in accidents in which they slip, trip or fall.  Wet or icy floors, sidewalks or parking lots, inadequate lighting, or poor maintenance of a property can all be causes of such incidents.  In many such cases, the property owner or its subcontractor may have been negligent in fulfilling the responsibility to provide a safe premises for customers or business invitees.  When his is the case, they could be held liable for all resulting damages.

As we have just experienced, winters in Pennsylvania can bring much snow and ice – resulting in treacherous conditions in parking lots and on sidewalks. With such wintry conditions, a duty is placed upon the property owner to act within a reasonable time — after notice — to remove the snow and ice when it constitutes a dangerous condition.  Courts in Pennsylvania continue to recognize the established common law regarding legal duties of care imposed on landowners, and apply what is known as the “Hills and Ridges” doctrine.  This normally applies to paved areas where pedestrians are expected to travel.  In order for an injured person to recover, he or she must show that ridges or elevations — and not just generally slippery conditions — were the cause of the fall. See Rinaldi v. Levine, 176 A.2d 623 (Pa.1962).

In fact, we currently represent an injured worker who stopped at a convenience store for a cup of coffee during his work day.  Unfortunately, because of the way that snow and ice had been improperly cleared, he slipped and fell, suffering serious physical injuries.  As previously indicated, here, the workers’ compensation carrier who paid his medical and wage loss benefits has asserted its right of “subrogation” — and this must be factored into any potential resolution with the negligent “third party.”

Wherever injuries are caused by the negligence of a “third party,” a lawyer should analyze all surrounding circumstances and explore each path of potential recovery.  Although it will often involve “subrogation,” pursuit of a personal injury claim against a responsible “third party” should lead to more appropriate recovery and compensation for all the harms and losses sustained.  However, it is important to navigate this properly because the way one claim is handled can seriously affect the pursuit of another. Without knowledgeable legal representation, one may forfeit some of rights or accept less than is rightfully deserved.

If you suffer an injury on the job or elsewhere, High Swartz will pursue and protect your rights and seek to obtain all monetary and other benefits to which you are legally entitled.  As most personal injury attorneys do, we work on a contingent fee basis.  That is, the attorney’s fee is contingent upon our winning or settling the case.  With no need to lay out legal fees in advance, all people can afford a good lawyer.

There are many qualified attorneys who specialize in one area of disability law or another.  However, it would seem prudent to consult a firm – like High Swartz – where multiple attorneys who focus on specific areas of disability law can work together to effectively coordinate a strategy to maximize your recovery and minimize the risks of leaving any valuable stone unturned.  Our attorneys in Bucks County and Montgomery County are here to assist you.  If you have questions regarding obtaining compensation for personal injuries, please contact Eric Marttila, Esq., at (215) 345-8888 or emarttila@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.


You May Be Entitled to Multiple Disability Benefits! The Eligibility Requirements and the Interactions Between the Benefits Programs

If you are disabled, you may be entitled to disability benefits through multiple benefit programs. Before applying for disability benefits from multiple programs, it is important to know how benefit programs interact and how each applying for one benefit may affect your eligibility for another for other benefits.  Knowing what is available to you and when you should apply for these benefits is crucial. Seeking the advice of an attorney experienced in navigating multiple benefits programs will help you through the complicated process and help you get the best financial result.

Social Security Disability, Workers’ Compensation, Long Term Disability and  Veterans’ Administration benefits are the most routinely sought by disabled individuals.  We have highlighted some of the most important interactions to be aware of when applying for these benefits.

Workers’ Compensation Benefits and Social Security Disability

If you are receiving workers’ compensation benefits, you may also be entitled to Social Security Disability benefits (SSDI). The two programs are completely separate and the guidelines used by each to determine disability are very different. Workers’ compensation programs vary by state, but in general, you are considered disabled if you are no longer capable of performing the job you were doing when you were injured. The Social Security Administration’s definition of being disabled is broader and the requirements more rigorous. To qualify for SSDI you must be found totally disabled from performing any of the past work you have done and unable to perform work in any field in which you could be reasonably retrained to work.

For example: A certified nurses’ assistant (CNA) injures her low back while lifting a patient and now cannot perform the heavy physical requirements of her pre-injury position; she would likely be considered disabled by workers’ compensation standards. Under the requirements for SSDI, it may be determined that while the CNA cannot work as a CNA, she has the residual functional capacity to do less physical work such as being a receptionist, a companion or housekeeper, and so she would not be considered disabled.

If you are receiving workers’ compensation benefits and then are awarded SSDI, the total amount of the combined benefits you receive cannot exceed 80 percent of your average current monthly earnings before you became disabled. Your workers’ compensation benefits act as your “primary” benefit and then SSDI will supplement your income up to the 80 percent maximum, but no more than your full SSDI benefit rate.

For example: Your average monthly earnings before you became disabled as determined by Social Security was $4,000 per month. You are presently receiving $2,400 per month in workers’ compensation benefits. Your maximum SSDI benefit rate per month is $1,800. Because the combined total of the potential benefits ($4,200) exceeds 80 percent of your average monthly earnings ($3,200), your SSDI benefits would be reduced to $800 per month. If your workers’ compensation benefits are reduced, you would report the change to Social Security and your SSDI benefits can be increased.

There are advantages and disadvantages regarding when you apply for SSDI while receiving workers’ compensation benefits. The timing of your applications may affect your future medical benefits and a potential lump sum settlement of your workers’ compensation claim. If you plan on receiving both benefits, it would be well advised to seek the advice of an attorney that has experience with both workers’ compensation and SSDI claims.

Long Term Disability and Social Security Disability

If you are receiving private long term disability benefits you may also be entitled to SSDI. The definition of disability and the medical evidence required to meet the disability requirements differ among private insurance carriers and will be very different from requirements of the Social Security Administration.

The amount of SSDI monthly benefits you are entitled to receive if found disabled are not affected by your private long term disability payments. On the other hand, with private insurance, your long term disability benefits are defined contractually and the insurer may be entitled to an offset for any SSDI benefits you receive. In fact, many insurers require you to apply for SSDI benefits for just this reason, and failure to apply for SSDI could result in termination of your long term disability coverage.

The long term disability insurers often offer to assist you with your SSDI claim as it benefits them financially. If you are receiving $3,000 per month in long term disability and are awarded $2,000 in SSDI per month, the long term disability plan will begin paying you only $1,000 per month. If you receive back due benefits from SSDI, the long term disability insurer will seek reimbursement for the same $2,000 per month offset retroactively from any back SSDI benefits you receive.

Long term disability does not provide medical benefits coverage so it is important to apply for SSDI benefits to become Medicare eligible. In order to be entitled to Medicare, you must be disabled for two years. The SSDI process can be lengthy and onerous but is extremely important to undertake if you need affordable medical coverage under Medicare.

You should consult with an attorney experienced in Social Security Disability to advise you through the SSDI application process. Keep in mind, although your disability insurer may offer assistance with obtaining SSDI, you may actually never meet a representative until the day of a hearing. It may be beneficial to seek counsel from an attorney that is located in your local area so that you can meet with them from the onset of your claim.

Veterans Administration benefits and Social Security Disability

If you are receiving Veterans Administration (VA) benefits you may also be entitled to SSDI. The definition of disability and the medical evidence required to meet the disability requirements for VA disability differs from those of the Social Security Administration.

The SSDI monthly benefits you are entitled to receive if found disabled are not affected by your VA disability benefits. You are entitled to receive both concurrently without any reduction or offset between the two agencies.

Up until March 27, 2017, Social Security considered whether an individual was receiving VA disability benefits and gave it great weight in the review process of determining an applicant’s disability. For applications filed on or after March 27, 2017, VA disability decisions are considered “ inherently neither valuable nor persuasive to us”. The intent of Social Security was to make it clear that it is never appropriate to “credit as true” any medical opinion. Revisions to Rules Regarding the Evaluation of Medical Evidence in the Federal Register (82 FR 5844). While Social Security will consider VA  medical records in their determinations, the VA disability determination by itself will not guarantee an award of SSDI benefits.

If you have questions regarding your entitlement to Social Security Disability, assistance in applying for benefits or filing an appeal of a denial of benefits, please contact Linay L. Haubert at 215-345-8888 or lhaubert@highswartz.com.  As a registered nurse, I also have the medical knowledge and experience to navigate your claim through the rigorous medical requirements of the disability application and appeal process. Our attorneys see clients in both our Bucks County and Montgomery offices and have the knowledge and experience in all facets of disability issues.

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.

Revocable Living Trust: Not the Magic Bullet

So what is a revocable living trust?  A trust is a legal written agreement between various individuals:  The individuals involved include the trustmaker, who is the person that creates the trust agreement (also commonly referred to as the grantor, trustor or settlor); the trustee, who is the person that manages the trust assets; and the beneficiary(ies), who are the individuals or entities that receive the benefits or assets held by the trust.

In a revocable living trust, the trustmaker serves as the initial sole trustee and is the sole beneficiary of the trust during his or her lifetime.  The trust is considered revocable because it may be amended or revoked by the trustmaker until death.  At death, the trust becomes irrevocable and the successor trustee then manages and disposes of the trust assets according to the provisions of the trust agreement.

For some reason, revocable living trusts have become extremely popular in recent years.  Often, they are marketed as a way to avoid probate and shorten the administration process.  Perhaps in New York, California or Florida they may be a good idea, but in Pennsylvania the situation is different.  Often the associated costs and the process in preparing a revocable living trust may not justify its creation.  So, before you insist on including a revocable living trust as part of your estate plan, it’s important to understand what a revocable living trust can and cannot do.

Do not fear Probate.  In Pennsylvania, probate is not the costly, time consuming nightmare that everyone fears.  Probate is the process by which a Will is proven to be a valid.  The process begins when the person appointed as Executor in a Will appears before the Clerk of the Register of Wills and files the original Will, the death certificate, and a Petition for Grant of Letters Testamentary.  The clerk will examine the documents, confirm the person’s identity and request the soon to be Executor to take an oath of office.  If the paperwork is in order, the process is smooth and can take less than 15 minutes.

Cost of Probate.  Pennsylvania probate fees are based on the size of the probate estate.  The probate estate includes those assets that pass pursuant to the terms of a Will.  Probate assets do not include assets with beneficiary designations such as life insurance policies, 401(k) funds, and IRAs, assets titled jointly, or assets with payable on death or transfer on death designations.  The assets that do pass pursuant to a Will and, therefore, are subject to probate include household personal property, vehicles, non-joint bank accounts, and property titled solely in the name of the decedent.   Once non-probate assets are removed from the calculation, the cost of probate is actually not that expensive.  So, for example, a probate estate ranging in value between $300,001 to $400,000 results in a probate fee of $375.00 as of 2015, which is significantly lower than the cost of preparing a revocable living trust.

Administration Process.  Whether a decedent’s assets pass pursuant to the terms of a Will or a revocable living trust, the administration process takes time and costs money.  The personal representative (trustee or executor) will need to consider the liquidity of the estate, management of the assets, and tax consequences from the sale and distribution of the assets.  As part of an estate administration, whether a revocable living trust or a Will is involved, the representative will likely need to consider:

  • Payment funeral and burial costs
  • Selling or leasing real or personal property
  • Payment for the preparation for the sale of real party, such as cleaning or painting
  • Filing estate and inheritance tax returns
  • Paying creditors
  • Keeping detailed and accurate records
  • Providing notice to the beneficiaries

All these tasks take time.  The administration process cannot be shortened or avoided just by creating a revocable living trust.

Estate, Inheritance and Income Taxes.  A person does not avoid the payment of federal estate taxes, Pennsylvania inheritance taxes, income taxes or any other taxes simply by creating a revocable living trust.  The trustee of the Trust is still responsible for filing the estate and inheritance tax returns and payment of the death taxes associated with those returns.  Planning techniques designed to minimize those taxes are available regardless of whether a revocable living trust or Will is used.

No Asset Protection.  A revocable living trust does not provide protection against creditors or shelter assets from legal claims such as bankruptcy or divorce.  As long as the trustmaker maintains control over the trust property, the law still considers the trustmaker the owner of the trust property.  Examples of control include the ability to amend or terminate the trust at any time.  Control also includes the ability to put property in the trust, take it out, sell it, or give it away at any time with no restrictions.  Since the trustmaker is still considered the legal owner of the trust property, a court can force the termination of the trust and distribution of the trust assets to creditors.

A Living Trust cannot hold all Assets.  A living trust cannot hold all asset types.  For example, accounts such as 401(k)s, IRAs or Roth IRA’s cannot be transferred into a living trust.  These assets can only be owned by an individual, not a business, trust or other entity.  Nor can a revocable living trust own life insurance (the settlor will be deemed the owner at death).  Instead, retirement accounts and life insurance proceeds should be allowed to pass pursuant to their beneficiary designations.  At death, perhaps, the proceeds of these assets can be transferred into a trust, if proper planning techniques are used, but these same techniques are available under a properly drafted Will.

Last Will & Testament.  Even if you have a revocable living trust, a Last Will and Testament is still needed to ensure that all assets are distributed pursuant to the provisions of a living trust.  Unlike a Will, the ownership of assets of a trust are determined by title.  For example, a bank account owned by a trust would be titled under the trust’s name.  An often-overlooked step is assigning tangible personal property (i.e., jewelry, paintings, household furnishings) to a trust.  Since this type of property does not have a written title associated with it, title cannot be transferred to a trust; rather, the property must be assigned.  Another overlooked step is making sure all assets are transferred to the Revocable Living Trust.  If an asset is missed and there is no Will, then Pennsylvania intestate laws are triggered, and that asset will pass pursuant to those laws.

When is a Revocable Living Trust a Good Idea?  A revocable living trust may be a good idea in certain situations.  The first situation arises where an individual owns real estate in another state.  By holding the real estate under a revocable living trust, ancillary probate may be avoided.  But other ramifications should be considered before a transfer is made.  Does the real estate contain a mortgage with a “due on sale” clause?  If so, the transfer of the real estate to a revocable living trust may accelerate the mortgage.  The Garn-St. Germain Act, a federal law, prohibits mortgage acceleration in several situations, including the transfer of residential property containing less than five dwelling units into a revocable living trust.  In addition, keep in mind that once the real estate is transferred into the trust, lenders may not provide new financing while the real estate is held by the trust.  Instead, a person may need to jump through several hurdles to secure new financing, including the transfer of the property out of trust to secure the financing and then the transfer back into the trust once financing is secured.

The second situation arises when a person already has a properly funded revocable living trust.  Usually these individuals are moving from states that have time consuming and expensive probate, such as Florida, California or New York to Pennsylvania.  At that point, it would likely be costlier to unwind the trust rather than amend it.

If you have any questions about living trusts, please contact Mary R. LaSota at (215) 345-8888 or mlasota@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 Welcomes New Municipal Law Attorney

Full-service law firm High Swartz LLP is pleased to announce that Kathleen M. Thomas has joined the firm’s Municipal Law practice.

Kathleen brings more than twenty-five years of legal experience, and concentrates her practice in the areas of municipal law, small business and non-profit law, and civil litigation.

Recognized as an expert in the areas of Pennsylvania Act 511 taxation, Kathleen serves as Special Act 511 Tax Counsel to the Townships of, Lower Merion and Abington, among others.  She also serves as the Act 511 Hearing Officer to multiple municipalities in Montgomery and Delaware Counties.  She is a regular speaker at the meetings of the Pennsylvania Business Privilege and Mercantile Tax Collectors Association.

Kathleen’s expertise extends to issues of corporate governance and other matters related to non-profit organizations, churches and other religious entities, including the Philadelphia Baptist Association.

“We feel very fortunate to have someone with Kathleen’s breadth of municipal experience join our firm.  Her reputation for dealing with issues involving municipal taxation, particularly in the area of Business Privilege Tax, is outstanding.  Her expertise in representing non-profit entities also meshes well with the extensive work our firm already does in that area”, said partner Gilbert P. High, Jr.

Thomas  earned her law degree from Temple University Beasley School of Law. She holds a Bachelor of Arts from West Chester University in Business Administration. She lives in Warminster, Pennsylvania.

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.

# # #

Non-compete 101

Over the course of your professional career, you may have been required to sign a non-compete agreement, and if you haven’t yet, then now is a good time to learn about these somewhat common and important documents.  Oftentimes you will be presented with a non-compete agreement when you are starting a new job or have gotten the  raise you’ve been waiting for.  Because these are highly exciting times the temptation may be there to just skim the pages without  really paying attention to the details or restrictions. After all, the non-compete only applies after you leave this job, and at the moment of signing you are likely perfectly happy with where you are professionally.  It is only later on, when you are contacted by a headhunter or just ready for a change, that you begin to worry about the implications of having signed that agreement.

As an initial matter, a non-compete agreement—not to be confused with a garden leave agreement—is an agreement you sign that proactively limits your ability to work in an particular field or industry for a specific period of time in a certain geographic region after you leave your current employment.  Pennsylvania does not have any general statue or regulation governing non-compete agreements.  That being said, there is plenty of case law that guides interpreting, understanding, and enforcing non-competes.  Because Pennsylvania courts disfavor tools used to restrain trade, non-compete agreements tend to be strictly construed against an employer who is seeking enforcement.  Accordingly the courts will only enforce a  non-compete agreement that is 1) incidental to an employment relationship between the parties; 2) reasonably necessary to protect the employer; and 3) reasonably limited in duration and geographic extent.

Just like any other contract, a non-compete agreement must be supported by sufficient consideration.  This is often accomplished by having an employee sign such an agreement before or at the time they commence employment.  Accordingly, make sure you look for a non-compete in the packet of papers you get on your first day.  After you begin work, the consideration required can take the shape of either an increase in pay  or some beneficial change in the employee’s status (Telling a current employee to “sign or get out” is not sufficient consideration in Pennsylvania).

Once you satisfy yourself that consideration exists, you will next want to look at the actual terms of the agreement. Since every non-compete agreement is unique, the analysis of terms will be highly fact specific, but  there are some rules of thumb to keep in mind.  Pennsylvania courts have usually upheld restrictions that are for durations of one to three years.  As far as geographic scope, Pennsylvania courts look to the scope of the employee’s duties in defining a reasonable territorial limitation.  For example if your position is sales related in a relatively defined territory, a non-compete  would likely be held to be reasonable if it prohibited you from selling a competitor’s product or service in that territory.

A Pennsylvania court may, in its discretion, modify the terms of the agreement to a more reasonable scope or duration if it determines that is the more appropriate course of action. But some non-competes are so overbroad and improper that a court may nullify the non-compete entirely if an employee challenges the agreement.

Ultimately, because each non-compete agreement is specific to the employer and its business as well as the employee’s position, interpreting and determining their enforceability can be a daunting task.  If you are concerned about a non-compete agreement that you have signed or have been asked to sign, it is wise to seek advice from an experienced attorney who can help you to most effectively navigate this issue.

If you have any questions about employee agreements or employment issues, please contact us at 610-275-0700 or main@highswartz.com.  Our employment law attorneys provide clients throughout the Pennsylvania region, including Bucks County, Montgomery County, Delaware County, Philadelphia and Chester County with sound advice and excellent representation. Our employment law attorneys deal with workplace issues in an ever-changing environment, we counsel and serve employers on general employment policies, we also handle individual employment 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.