Pennsylvania Child Support Guidelines

Pennsylvania Child Support Guidelines

Pennsylvania’s Support Guidelines establish the amount of child support owed by one parent to the other. A parent is entitled to receive child support if he or she has physical custody of the child for more overnights than the other parent. Where parents share physical custody equally, the parent who earns more money owes the other parent child support.

The amount of child support is calculated from the combined total net income of both parties. The Pennsylvania Support Guidelines include a specific dollar amount, called the “basic support obligation,” for each child of the family, based exclusively on the parents’ total net combined income. The separate responsibility of each parent to pay a share of the Support Guideline amount is then calculated proportionately, based on the percentage of the total combined income earned by each parent. If a mother who owes a father child support earns 74% of the parents’ total combined income, she is ordered to pay 74% of the Support Guideline figure. When parents share custody equally, the higher earner pays support to the other parent, but with a discount of up to 20% to compensate for the expenses of shared custody.

Recently, a Pennsylvania father who thought he was entitled to a reduction in his support payment moved for modification of his support order and was frustrated when the support hearing officer instead increased the support payment amount. Brikus v. Dent, 5 A.3d 1281 (Pa. Super. 2010).

The mother did not request any changes prior to the hearing and the father’s request was specifically for a decrease in his obligation. On appeal, the Pennsylvania appellate court affirmed the hearing officer’s decision. The court held that it was not necessary for the mother to request an increase or to take any position prior to the hearing. Instead, the court found that support hearing officers have the obligation and authority to determine the parties’ current incomes and set an appropriate order based on those calculations. Hearing officers also may “attribute” income to parents who are found to be earning less than their actual income earning capacity.

When parents’ incomes go up or down their child support orders can be modified if either parent files a petition with the court requesting modification. Before filing a request for a change in your child support, it is wise to check with a lawyer to review the possible results.

All Gambling is Not Legal

All Gambling is Not Legal

A Pennsylvania State couple arrested and convicted of illegal gambling for operating a Texas Hold ‘Em poker business in their garage appealed their case claiming that poker is not gambling, even when betting is involved. The couple claimed that poker is a game of skill, not of chance. Commonwealth v. Dent, et al., 992 A.2d 190 (Pa. Super. 2010), appeal denied, 20 A.2d 484, 487 (PA 2011).

Pennsylvania law defines gambling as an enterprise based on payment, chance and reward. All three elements must exist to make a game or event gambling. Gambling is illegal in Pennsylvania, except where specifically permitted by law. Pennsylvania law limits legal gambling to licensed casinos and racetracks, and to licensed charitable small games of chance. The Pennsylvania state lotteries and regional power-ball lotteries are also legal.

The Pennsylvania appellate court rejected the couple’s appeal, finding that while poker involves some skill, “the element of chance predominates.” Noting that throwing dice is purely a game of chance, while playing chess is purely a game of skill, the court observed that poker falls somewhere in between dice throwing and chess. But the court concluded that players’ use of skill in poker does not change the fact that it is largely a game of chance. “No amount of skill can change a deuce into an ace,” the court stated. The court found that a skilled player can win more often but “is always subject to defeat at the turn of a card, an instrumentality beyond his control.”

With the growth of licensed casinos in Pennsylvania and the expansion of legal casino gambling to include table games and poker, Pennsylvania residents and visitors can play and bet on poker games legally, but only in casinos.

 

Work Stoppage and Unemployment Benefits

Work Stoppage and Unemployment Benefits

Pennsylvania unemployment law denies unemployment benefits to employees who are out of work due to a “stoppage of work which exists because of a labor dispute.” An exception to the denial of benefits occurs when the employer creates a “lock out.” An employer can be found to have created a lock out, even when the employees chose to strike.

Recently, over 1,000 nurses and allied health services workers at a Pennsylvania university hospital system struggled over the rights of workers and their families to tuition benefits. Over a period of several years, the University changed its tuition policies. Eventually, the nurses and workers union brought an unfair labor practice charge against the University, claiming that its changes to the tuition policies violated their contracts and amounted to an unfair labor practice. The Pennsylvania Labor Relations Board sided with the union, found that the University had engaged in unfair labor practices and ordered the University to restore benefits and make reimbursements to affected employees.

The University disagreed with the Board and appealed. The union responded by initiating a work stoppage, or strike, with picket lines. After nearly a month, a settlement was negotiated, the University dropped its appeal and the workers returned to work, with a new contract and agreed-upon tuition benefits.

Despite the fact that the union initiated the work stoppage, the employees won their subsequent claims for unemployment benefits during the strike because the court found that the work stoppage was actually a lock out by the University. To decide whether a work stoppage is a lockout, the courts focus on who disrupted the “status quo.” The University’s significant changes to the tuition policy amounted to a change in the status quo, and thus the union’s decision to strike qualified as an employer lock out. The court emphasized that the union’s willingness to continue to work despite a series of changes to the tuition policies, and the University’s decision to appeal the finding of unfair labor practices factored heavily in the determination that a lock out occurred.

The University may have avoided a lock out finding if it had restored the tuition benefits temporarily during its appeal. The workers benefited from their union’s willingness to continue to work, despite the tuition policy changes, for a lengthy period of time before striking. Workers who are hopeful of receiving unemployment benefits during work stoppage periods should carefully consider whether the union or the employer is closest to the previous status quo, as unemployment benefits are solidly based on that analysis.

 Cite

Temple University Health System v. Unemployment Comp. Bd., 67 A3d 1272 (Pa. Cmwlth. 2013)

 

 

 

 

Falling Asleep at the Wheel Leads to Conviction for Homicide by Vehicle

Falling Asleep at the Wheel Leads to Conviction for Homicide by Vehicle

A truck driver was convicted of Homicide by Vehicle because he drove his eighteen wheel tractor trailer on an interstate highway, “blacked out or fell asleep,” drifted onto the shoulder and struck another truck legally parked on the shoulder, killing the other driver. Commonwealth v. Pedota, 64 A.3d 634 (Pa. Super 2013), appeal denied 74 A.3d 126 (PA 2013).

The truck driver appealed his conviction, and focused on the fact that no competent evidence existed of whether he suddenly blacked out, or instead more slowly nodded off behind the wheel. The truck driver claimed that drivers who fall asleep are clearly reckless, because they ignore the progressive signs that they are being overpowered by sleepiness. But blacking out, because it happens suddenly and is beyond the driver’s control, is not grossly negligent or reckless behavior according to the truck driver’s argument on appeal.

The appeal court firmly stated all “drivers have an unflagging duty either to remain vigilant and awake or to immediately desist from driving.” The Court also decided that the prosecution cannot be not expected to prove whether a driver blacked out suddenly or fell asleep more normally. Noting that “it is common knowledge that sleep is preceded by some internal warning,” the Court found it reasonable to conclude that a person who falls asleep driving, whether slowly or suddenly, is in “such a state of exhaustion,” that he knows or should know he is likely to fall asleep. The Court also observed that if the truck driver had in fact blacked out, it was highly unlikely that this was the first and only occasion, and any history of sudden blackouts should persuade drivers that they are incapable of safe driving.

The combination of driving in a reckless or grossly negligent manner, and violating the Motor Vehicle Code results in liability for the very serious crime of Homicide by Vehicle. Homicide by Vehicle is not an intentional crime; instead it occurs when a driver is reckless or grossly negligent but has no intention to injure or kill. In holding the truck driver responsible for Homicide by Vehicle, the Court concluded that interstate tractor trailer drivers have the capacity to “inflict devastating harm” on other drivers. All drivers, whether behind the wheel of a car or a tractor trailer, can be found guilty of Homicide by Vehicle if they lose consciousness while driving and cause a death.

Writing a Valid Will in Pennsylvania

Writing a Valid Will in Pennsylvania

Pennsylvania wills and estate law is complex largely because it has been written over several centuries and has responded to a myriad of wills and challenges to wills.

Recently, the Pennsylvania Superior Court distributed a father’s estate to his five children, despite the fact that the father had included some language in his will cutting three of his children out. Estate of Zeevering, 78 A.3d 1106 (Pa.Super. 2013).

The father wrote his own will without the help or advice of an attorney. He had five adult children. The father left his red pickup truck to one of his sons. The father’s will directed that his debts and funeral expenses were to be paid. It then identified three of the five children by name, and indicated that the “failure” to provide for any “distribution” to them was “intentional.” The father died with over $200,000.00 in cash assets that he did not mention in the will.

Wills often include “specific bequests,” like the red pickup truck. A specific bequest is the identification of a particular asset, with the direction that it is left to a particular person. All well-drafted wills also include a “residuary” or “residue” clause. That clause simply states what the person wants done with any left over “residue” of the estate. Anything not specifically bequeathed to a particular person in a specific bequest will fall into the catchall “residue.” The residuary clause of a will often controls most of the assets, since many people don’t make specific bequests of everything they own.

The Court recognized that the father’s will made it clear that he did not intend to make any specific bequests to his three children he excluded from “any distribution.” But because the father did not include any residue clause anywhere in the will, Pennsylvania intestate law controlled the residue. Pennsylvania intestate law has a clear and lengthy path for “intestate succession,” that identifies who inherits when someone dies without any will. Intestate rules provide that spouses inherit first, and where there is no surviving spouse, all surviving children inherit equal shares. Whenever a will does not clearly identify who inherits the residue, the residue passes by the intestate rules. And because the father had no residue clause, intestate law provided that all his surviving children were entitled to an equal share of the more than $200,000.00 in cash assets.

Often people prepare their wills without any firm knowledge of how much cash and other property will be in their control at the time they pass. Sometimes, after making a will, a person may gift large portions of cash and investments before dying. In weighing the father’s intentions, the Court reasoned that the father may or may not have been aware of the value of his cash assets, and the Court concluded that it was impossible to know the father’s intentions regarding his residue. Refusing to “graft” a residuary clause onto the will, the Court held that the $200,000.00 had to pass by intestate succession to all five children because there was no residuary clause in the home-made will.

Pennsylvania residents have an absolute right to control their estates and can do so by properly executing valid wills. The best way to be sure your will is valid and enforceable is to have an experienced attorney guide you through the process.

A Shed is Not Real Estate

A Shed is Not Real Estate

Many Pennsylvania municipal governments use zoning laws to regulate the use of storage sheds. In many municipalities, land owners who buy commercially available prefabricated storage sheds must apply for zoning permits and also must observe local municipal regulations that limit how close to property lines sheds may be placed. Some Pennsylvania municipalities also tax the sheds, by including the sheds as a part of the owners’ real estate, raising the assessed value of the property after the purchase of shed. Typically, county assessment authorities discover the sheds by monitoring zoning permits.

A Pennsylvania shed-owning homeowner protested the increase of his taxes, and by appealing his case to the Pennsylvania Commonwealth Court, he secured a judicial decision that benefits other Pennsylvania shed owners. The homeowner purchased a 10 foot by 20 foot shed, with a garage-style rolling door and wooden floor. Delivered to his property by a roll back truck, the shed was placed on support beams sitting on a bed of stone. The shed did not have any plumbing, electricity or heat. The shed was not fixed or attached to the beams on which it simply rested. The county assessment authorities followed up after receiving notice of the zoning permit, and raised the homeowner’s property assessment by more than $2,000.00. The increase in the assessment triggered an increase in the homeowner’s school taxes, county taxes and township taxes.

While he lost his local challenge, the homeowner prevailed in his state court appeal. The Pennsylvania Commonwealth Court reversed the county tax assessment increase, and noted that the only buildings which may be assessed for real estate taxes are those “permanently attached to the land or connected with water, gas, electric or sewage facilities.” The county court had focused on the homeowner’s intention to use the shed permanently; the Pennsylvania Commonwealth Court emphasized that a physical, permanent attachment to the land is a crucial element if a building is to be included in the owner’s assessment. The Court noted that a building or shed is not “attached” to the land if it is “held in place by its weight alone.” Some “substantial connection” affixing the building to the land is required before a building or shed can be assessed for real estate tax purposes

Homeowners who buy storage sheds must first consider safety, manufacturer’s installation specifications and sound construction principles in deciding how to situate a storage shed. But if simply placing the shed on the ground is equally acceptable to affixing it to a foundation or to another structure, homeowners can avoid increased real estate taxes by refraining from affixing the shed. Likewise, because a connection to electric services will result in increased taxes, the decision whether to run an electric line to a shed must be made with taxes in mind. It is not yet clear whether a poured foundation, as opposed to support beams, could affect the potential for an increased assessment. But given the Commonwealth Court’s clear focus on “attachment,” it would appear that the existence of a poured pad will include a focus on whether the shed is “attached.”. Homeowners whose sheds have already been assessed as taxable now have the right to request a re-assessment in light of this decision.

Cite

Pederson v. Monroe County Bd. of Assessment Appeals, 84 A.3d 402 (Pa.Cmwlth. 2014).

 

School Transportation

School Transportation & Custody Issues

Parents who share custody equally and live in the same school district are entitled to have their children bussed to both homes as a result of a central Pennsylvania father’s appeal to the Commonwealth Court this year. Watts v. Manheim School District, 84 A.2d 378 (Pa. Cmwlth. 2014)

In the case appealed, the parents lived in separate residences in the same school district, sharing custody of a middle school age child on an alternating weekly schedule. As a cost cutting measure, the school district stopped providing students with bus transportation to multiple locations, and designated the child’s bus stop as the one at his mother’ home. The school district’s decision forced the father to hire a care giver to drive the child to school because the father’s work schedule prevented him from driving the child himself.

The Court noted that there was a regular bus route through the father’s neighborhood, with a bus stop the child had previously used. The Court also noted that the Pennsylvania School Code requires that when school districts elect to provide free bus transportation, they must do so for all “resident” students. The School Code further requires that no student shall travel more than a mile and a half to the bus stop. Observing that resident students cannot demand “door to door” transportation, the Court found that the mother’s home was more than a mile and a half from the father’s home and the district could not rely on the mother’s bus stop during the father’s periods of physical custody of the child. Emphasizing that the child qualified as a “resident” student at each of his parents’ homes, the Court ordered the district to resume busing to and from both homes.

Throughout the opinion, the Court referred to the custody arrangement as “equal” and “equally shared.” The Court also recognized that school districts have very broad discretion in how they manage their transportation systems. It is not clear what rights parents may have to bus transportation from both homes when custody is not equally shared. But the Court’s firm recognition that a child is a resident of a school district, whether or not his home is a “primary” residence, leaves room for parents with split, but not equal custody, to seek busing to both homes.

 

Bus Injuries

Jerk and Jolt – Bus Injuries in Pennsylvania

A woman who boarded a bus, walked down the aisle toward a seat and fell when the bus accelerated suddenly claimed that she was entitled to the benefit of the “jerk and jolt doctrine,” and should be compensated by the bus company for her back and neck injuries. On appeal, the Pennsylvania Commonwealth Court disagreed. Martin v. SEPTA, 52 A.3d 385 (Pa. Super. 2012).

Passengers injured in public transit must prove negligence in order to recover for damages for any injuries they suffer. An exception to the requirement that a passenger prove negligence by the driver or company is the “jerk and jolt” doctrine. That doctrine provides that a bus passenger can recover damages by simply proving that a jerk or jolt of the bus occurred that was so “unusual or extraordinary as to be beyond a passenger’s reasonable anticipation” or that the jerk and jolt “had an extraordinarily disturbing effect on other passengers.”

In the case involving the woman who fell in the bus aisle, the appellate Court noted that she failed to prove negligence and also failed to qualify under the jerk and jolt doctrine. No other passengers testified at trial, and no evidence was introduced that any passengers other than the injured woman were affected at all by the acceleration of the bus. The mere fact that the woman lost her balance and fell, without any other evidence, was insufficient to meet the jerk and jolt doctrine.

Bus passengers can’t observe the driver, the traffic and all the circumstances that can cause sudden movements of a bus. An injured bus passenger who is not able to prove negligence has a limited opportunity to recover damages if other passengers are “extraordinarily” disturbed by a jerk or jolt of the bus, or if the injured passenger can show that the movement was “beyond reasonable expectation.”

Worker’s Compensation & Narcotic Pain Medication

Worker’s Compensation & Narcotic Pain Medication

A Pennsylvania appellate court made the unusual announcement that it was constrained to deny an injured worker prescription narcotic painkillers, despite “profound sympathy” for the worker’s circumstances. Bedford Somerset MHMR v. WCAB, 51 A.23d 267 (Pa. Cmwlth. 2012), appeal denied, 57 A.3d 72 (PA 2012).

The worker was employed by a mental health agency and was injured at work. The injury caused her to suffer back problems that led to several surgeries and chronically worsening spinal deterioration and accompanying pain. After years of treatment, the worker’s physician prescribed narcotic lozenges for “breakthrough pain.” The particular lozenges prescribed by the worker’s physician carry a package insert indicating that the lozenges are only approved by the FDA for pain associated with cancer or AIDS, due to the highly addictive nature of the narcotic drug.

After protracted review and hearing procedures, the case was appealed. The Pennsylvania Commonwealth Court held that all worker’s compensation benefits payments must be for reasonable and necessary treatment only. Because the lozenges were not approved for the purpose the worker’s doctor had prescribed them for, the employer’s insurance company was not responsible to pay for them.

Injured workers do have the right to explore alternative treatment or secure medical treatment that is not “reasonable and necessary” in the eyes of the worker’s compensation courts. But if they do so, they must do so at their own expense, or through another benefit or insurance plan.

Unemployment Compensation & Absenteeism

Unemployment Compensation & Absenteeism

A Pennsylvania employee who missed work because he was bumped from an over-booked air flight was denied unemployment compensation when his employer convinced a Pennsylvania appellate court that the employee had engaged in willful misconduct. Grand Sport Auto v. UCBR, 55 A.3d 186 (Pa. Cmwlth. 2012).

The employee worked for an auto-body company, cleaning cars. Over a six month period of time, the employee was tardy or absent without an excuse 19 times. The employer gave the employee written warnings for all the infractions. Nevertheless, the employer agreed that the employee could take vacation time to fly to Mexico to get married there. When the airline bumped the employee from his return flight, the employee called the employer from the airport and explained his dilemma, advising that he was “stuck in Mexico.” It was undisputed that the employee was unexpectedly bumped from his flight and that he returned to work as quickly as possible, missing only two days of work.

The employer fired the employee, due to his history of poor attendance and tardy arrivals. At the hearing on the employee’s unemployment claim, the employer’s management team testified that the employee had been warned multiple times and had been fired once for tardiness, then re-hired. Management team members had given the employee a later start time in the morning and had offered to call him to wake him up on work days. They testified that the decision to fire him again was made while the employee was away on his Mexico wedding trip.

The employee’s testimony eroded his claim. Announcing under oath, “Let’s be real,” the employee observed “Who’s not late more than twice in one month due to this, that or the other thing?” The hearing officer granted the employee unemployment benefits, reluctantly concluding that excessive absenteeism and tardiness are grounds for discharge, but do not constitute “willful misconduct,” the standard necessary to support a denial of unemployment benefits.

The employer appealed, and won. The Pennsylvania Commonwealth Court bluntly observed that employers have the right to expect that employees will attend work as scheduled, that they will arrive on time and that they will not leave early without permission. The Court described habitual tardiness as “inimical to an employer’s interest,” and held that a history of absenteeism or tardiness does constitute willful misconduct that will bar unemployment benefits for employees who are terminated as a result of that misconduct.

Employees who miss work or arrive late as a result of health problems should always document those events with medical records. Employers who expect to avoid unemployment claims should keep clear records of their employees’ time at work and must issue written warnings for absenteeism or tardiness.