Litigation

By: Daniel M. Hanifin

Upon the request of either party in a divorce action , a court shall divide, distribute or assign, the marital property between the parties without regard to marital misconduct in such percentages and in a manner that the court deems proper.  In dividing marital property, which is defined as property acquired during the marriage, the court will consider the following factors:

(1)    The length of the marriage;
(2)    Any prior marriages of either party;
(3)    The age, health, income , vocational skills, estate, employability and needs of each party;
(4)    The contribution of one party to the education, training or increased earning capacity  of the other ;
(5)    The possibility of each party for future acquisition of assets and income;
(6)    Income of both parties, including medical, insurance and retirement benefits;
(7)    The contribution of each party to the acquisition of marital property;
(8)    The value of personal property for each party;
(9)    The standard of living created during the marriage;
(10)    The circumstances of each party at the time of equitable distribution; and
(11)    Whether the party will be the custodian of any minor child.

The court has broad based power to effect equitable distribution of the marital assets including the entry of a judgment against a non-complying spouse.

Many people avoid the necessity of having a court divide their property by entering into a marital settlement agreement, which should be incorporated into the divorce decree.  To learn more about equitable distribution of marital property and/or marital settlement agreements please contact Dan Hanifin.

By: James C. Dalton

Your right to sue, and the legal remedies available to you, depend not only on the particular facts of your case, but also on the legal basis or theory of your claim. As noted in an earlier blog regarding the Discovery Rule, statutes of limitation require that claims be brought within specific time periods, depending on the type of claim. Failure to do so will lead to dismissal of your claim. A claim for breach of contract, for example, must be brought within four years of when the breach occurred, while a claim for personal injuries due to negligence is subject to a shorter, two year limitation period. Determining how to categorize a particular claim is not always a simple matter – is your claim for faulty construction/repair work a contract claim, or, a negligence claim? Or both? The legal category of your claim will also impact the nature and amount of damages recoverable in court.

Courts often address the distinction between contract and tort (negligence) claims in cases involving the performance of contract obligations, applying the Gist of the Action Doctrine, which the Pennsylvania Superior Court, in Reardon v. Allegheny College, explained as follows:

The gist of the action doctrine acts to foreclose tort claims: 1) arising solely from the contractual relationship between the parties; 2) when the alleged duties breached were grounded in the contract itself; 3) where any liability stems from the contract; and 4) when the tort claim essentially duplicates the breach of contract claim or where the success of the tort claim is dependent on the success of the breach of contract claim.

Proper analysis of the facts and available legal theories of your case is essential to protecting your rights and maximizing your recovery. Please contact James C. Dalton, Esq. for further information.

By: James C. Dalton

Statutes of limitation require that legal claims be filed in court within a specific time period after the claim arises. A claim for breach of contract, for example, must be brought within four years of when the breach occurred and a claim for personal injuries due to negligence is subject to a shorter, two year period. Determining how to categorize a particular claim (and the resulting limitation period) is not always a simple matter – is your claim for faulty construction/repair work a contract claim, or, a negligence claim? Or both?

Whether a statute of limitation bars a claim also depends on when the claim arose. Does the period for filing a claim for defective window installation, for example, arise when you signed off on the completed work, or, much later when all of your windows begin leaking? The “Discovery Rule” provides that the limitations period does not start running until a plaintiff knows, or reasonably should have known, that they have suffered a loss or injury due to the conduct of another.

The Pennsylvania Supreme Court recently applied the Discovery Rule to reinstate a patient’s medical malpractice claim in the case of Wilson v. El-Daief. The patient filed suit in October 2003, claiming that her radial nerve was negligently severed during wrist surgery in August 2000. Although the suit was filed over three years after the surgery, the court ruled that the two-year statute of limitations did not automatically start running from the date of surgery. The patient did not know that her pain and symptoms following surgery were due to her surgeon’s negligence until approximately thirteen months later so the case was allowed to be presented to the jury, despite the lapse of over three years since the negligent surgery.

The Wilson case demonstrates that measuring the statute of limitations is not always as simple as looking at a calendar and there may be unique circumstances and legal principles which allow a claim to be pursued. Please contact James C. Dalton, Esq. for further information.

By: Daniel P. Dwyer

Contractors, subcontractors and material providers have various legal remedies for protecting themselves against general contractors and/or property owners who fail to pay for construction services and materials. One of these remedies is the Pennsylvania Mechanics Lien Law. This law permits contractors, subcontractors and material men, under some circumstances, to place a lien on the real property for which they provided work or materials for which they were not paid. Although the statute is essentially in the same form as it was when originally enacted in the early 1900s, and so can be difficult to navigate, significant changes were made in 2007 and, more recently, in October 2009. To view a more in depth discussion about the recent amendments, please click here.

Please contact Daniel Dwyer for more information.

By: Daniel P. Dwyer

Attorneys hoping to minimize cost and increase efficiency for their clients will often engage in communications or joint defenses with co-defendants. This is often done either informally or with the use of formal joint defense agreements. Although this practice is fairly common, there has been relatively little guidance from the court on issues raised, such as whether and under what circumstances engaging in a joint defense will result in waiver of the attorney client or work product privileges. For more information on concerns with joint defenses, please read the full article. Contact Daniel Dwyer for more information.

By: Nancy J. Glidden

When can a member of a closely held LLC be held personally liable for the LLC’s debts? According to the U.S. Bankruptcy Court for the Middle District of Pennsylvania, liability is established when a member deals with creditors personally, without identifying himself or herself as an agent for the LLC.

In the case In re LMcD, LLC, the Trustee for a Chapter 7 bankruptcy estate offered up several theories in an attempt to tag the LLC members with personal liability for certain of the LLC’s debts. The Court, however, rejected each of the arguments advanced by the Trustee and instead seized upon the fact that a member of the LLC did not clearly identify that he was acting as an agent for the LLC when transacting business with several creditors whose debts the LLC sought to avoid in the bankruptcy.

For a more in depth explanation of the case click here.

By: Stephen P. Lagoy

At this time of year, sports pages are filled with articles about whether or not major league baseball teams have “offered arbitration” to their free agent players. What does this mean and what are the implications of the decision? For a primer on this subject, see http://bats.blogs.nytimes.com/2009/12/01/the-arbitration-decision/. For a discussion of the concept of “baseball arbitration”, see our previous blog entry here.

Please contact Stephen P. Lagoy for more information on ways the arbitration process can help you.

By: Stephen P. Lagoy

The President has signed into law a program giving closed auto dealerships access to neutral arbitration if they want to be reinstated. The process begins immediately and is expected to take six and one half months. For more information on how the auto dealer arbitration process will work see:

http://www.autonews.com/article/

For more information on how the arbitration process can work for you and your business, please contact our office.

In a recent post, we discussed the impact of Kvaerner Metals v. Commercial Union Ins. Co., 908 A.2d 888 (Pa. 2006), upon general contractors and others vis-à-vis the coverage afforded by commercial general liability policies for claims involving damage caused by faulty workmanship. In light of that decision, insurance coverage for such claims no longer exists. However, in response to the obvious gap in coverage that presently exists under standard CGL policies, insurers are beginning to offer endorsements that may bridge that gap and restore the protection that previously existed before Kvaerner and its progeny. Caution should be exercised, however, when evaluating whether or not to purchase an endorsement as certain endorsements may only offer limited protection and may be very costly. For more information on this topic, please contact our office.

By: Christopher L. Turner

It cannot be denied that the struggling economy has adversely affected the real estate market. As a result, some sellers of residential real property who are desperate to sell their property are failing to disclose known defects with their home. These defects cover a broad range and include, but are not limited to defects with the Seller’s roof, basement, water/sewage systems, plumbing, electric, heating and air conditioning as well as damage to the structural integrity of the home caused by termite infestation. Buyers damaged by such defects are naturally wondering “what can I do?”

If you have recently purchased residential real property and have been affected by defects to such property, you should be aware of the Pennsylvania Real Estate and Seller Disclosure Act (the “Act”) and its underlying rationale. Under the Act, a Seller who intends to transfer an interest in real property is required to disclose to the Buyer any material defects with the property which are known to the Seller by completing all applicable items in a property disclosure statement. The Act requires that such seller property disclosure statement be provided in all residential real estate transfers except for certain fiduciary transfers and transfers of new residential construction that have not been previously occupied and have been inspected for building code compliance and received a certificate of occupancy or code compliance.

A Seller of residential real property will be liable in the amount of actual damages suffered by the Buyer if such Seller willfully or negligently violates or fails to perform any duty prescribed by the Act. However, a Buyer’s action for damages against a Seller for violations of the Act must be commenced within a certain time period that begins to run from the date of final settlement on the affected property.

In addition to a cause of action under the Act, liability may also be imposed under alternative legal theories. There may also be causes of action against the Seller’s Agent and/or the Buyer’s Agent. Such options should be discussed with an attorney.

For more information, please contact Chris Turner in our litigation department.