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Archive for the month “June, 2014”

At the Service of the Clerk and Local Custom

Some lawyers like to joke that the Clerk of Court “is god” because the Clerk is, more or less, the gateway into Court.  If the Clerk rejects documents being filed he can frustrate the efforts made by the person doing the filing to seek redress in Court.  In the same way, the Clerk accepting documents allows one access to the Court.  Now, in theory at least, the Clerk is to abide by the Rules of Civil Procedure when accepting or rejecting documents for filing; unfortunately, however, sometimes local habit or custom becomes confused with actual rules and they (custom and habit) can be enforced just as stringently as the actual Rules.

It is practically axiomatic that a case filed in Court needs to be served, which more-or-less means delivered, to the opposing party through hand delivery to ensure the person received it and had an adequate amount of time to respond to it.  The requirement for service is no different in the context of a divorce complaint.

Along with most divorces is an Affidavit and Counteraffiavit under Section 3301(d) of Title 23 of the Pennsylvania Code that is sent to the parties.  Section 3301(d) governs divorces litigated (and often granted) on the basis that the parties are separated for at least two years.  Now, the Affidavit referred to above is prepared by the person seeking the divorce on the basis of a two-year separation and it must be sent to the other party to give him/her the opportunity to accept or deny the assertions in the Affidavit through the filing of the aforesaid Counteraffidavit.  The only thing the Rules require is for the Affidavit and Counteraffidavit to be sent to the opposing party by mail.

Despite the simple requirement described above, fairly early in my career I learned of the power of the Clerk and his interpretation of the Rules and the application of local custom.  I sent an opposing party the Affidavit and Counteraffidavit by mail and then tried to file it with the Court accordingly.  When I tried filing it with the Clerk he rejected it on the basis that the Affidavit and Counteraffidavit were not personally served (i.e.: personally handed to the opposing party as opposed to simply mailed); mind you, the Rules do not require personal service yet this is a great example of what I mention above: local habit and custom  became confused with actual rules as, apparently, personal service of the Affidavit was the typical custom in Philadelphia.

I suggested to the Clerk that he should accept my filing as it is compliant with the Rules and his requirement for personal service is not found in the Rules.  Needless to say, our interaction became somewhat heated when I tried to press him to accept my filing.  It got to the point where I told him to show me where in the Rules personal service is required.  In response, the Clerk brought out a practice manual (not the Rules!) to show me what the suggested “best practice” is for service.  He failed to understand that neither a practice manual nor suggested best practice are the same as the Rules, yet, due to local custom and habit having been hardened into de facto rules, he refused to budge on the point.  Ultimately, I compelled him to take my filing and he, after I left, wrote, in handwriting, on my filing that it was to be rejected as non-compliant and got the judge to sign it.

As a result of the above, I now include the Affidavit and Counteraffidavit as an exhibit to the divorce complaints I file and serve so there is absolutely no doubt that they are served personally upon the opposing party.  Even if the parties have been separated for less than two years, I modify the Affidavit to say something like “the parties will be separated for two years on [date]” just to ensure maximum compliance and clarity.  I highly recommend other family practitioners to do the above as it helps streamline the process, ensure compliance with both the Rules and local custom, and eliminates any question as to the service of the Affidavit and Counteraffidavit.

Part of an attorney’s practice is not just to know the laws and rules applicable to a certain case but to also have familiarity with the idiosyncrasies of a given Court Clerk as he can cause a case to bottleneck in his office and stymie its progress.  Unfortunately, as with me above, these lessons are sometimes learned through trial and error, but through the trial a new and more efficient practice has emerged and I hope it helps other family law practitioners as much as it has helped me.

Is It A-OK Withdrawing From a 401(k) for UC?

A question was recently posed to me asking whether a withdrawal from a 401(k) would cause one’s unemployment compensation benefits to be denied, be diminished or even cease if already in payment. The answer to this inquiry is not totally clear.

43 Pa.C.S.A. 804(d)(2)(i) states: “Periodic payment, under a plan maintained or contributed to by a base period or chargeable employer, the weekly benefit amount payable to such individual for such week shall be reduced, but not below zero, by the pro-rated weekly amount of the pension as determined under Subclause (ii)” and 43 Pa.C.S.A. 804(d)(2)(ii) states: “If the pension is entirely contributed to by the employer, then one hundred per centum of the pro-rated weekly amount of the pension shall be deducted. … [I]f the pension is contributed to by the individual, in any amount, then fifty per centum of the pro-rated weekly amount of the pension shall be deducted.”

The obvious questions that arise are, is a 401(k) a pension under the above statutes, and what if someone withdraws funds from their 401(k) before he is of retirement age as one would withdraw funds from a bank account? Answers to these questions are not readily forthcoming from the cases decided under the unemployment compensation law, but need to be parsed from cases dealing with other retirement vehicles (Wise v. Unemployment Compensation 707 A.2dc 627 (Pa.Cmwlth. 1997)).

After a review of the Wise case, it appears that if someone withdraws money from a 401(k) after he has reached an age of 59½, which enables the withdrawal to be made without a penalty, then the statutory guidelines laid out above apply and unemployment compensation benefits are reduced, possibly to zero. If someone is under the age of 59½ and rolls over the funds in his 401(k) into another retirement vehicle/investment in order to avoid the penalty for withdrawal, but does not withdraw any of the funds in it, then the above guidelines laid out do not apply and the unemployment compensation claimant can receive benefits without the statutory reduction in the same. Indeed, the Wise court opined that a roll over is not actual receipt of the funds and the claimant ought not be penalized with a reduction of unemployment benefits.

Unfortunately, courts generally have not directly addressed a situation in which someone who is under 59½ withdraws all of his funds from his 401(k), and pays the 10 percent penalty required for so. The court appears to imply that it does not believe it is just, or consistent with legislative intent, to make someone pay a penalty on the withdrawal and also be subject to a reduction of unemployment compensation benefits per the above statutory guidelines, as that would amount to a double penalty; however, the court did not rule on this scenario.

One question that the court does not appear to have addressed at all is if a claimant withdraws all funds from a 401(k) (with penalty) under the age of 59½, which could lead to a reduction of unemployment compensation benefits, does it matter if the contributions were made solely by the claimant, were made solely by the employer or the contributions came from both sources. If the 401(k) is comprised entirely of a claimant’s own contributions, would not those assets be his own as if he had contributed to a bank account, which would not affect benefits at all under normal circumstances? Are an employer’s contributions somehow different?

Per the Wise court’s dicta, one could reach the conclusion that one can withdraw all funds from a 401(k) under the age of 59½, pay the penalty for doing so, and still be eligible for the full unemployment compensation benefit amount. In saying that, however, due to government budget constraints and current economic conditions, the Department of Labor (and sometimes the courts) has been trending toward finding and justifying reasons to reduce or eliminate unemployment compensation benefits. Indeed, even if a claimant would be ultimately successful using the arguments laid out above, I would not at all be surprised if the Unemployment Compensation Board of Review, taking advantage of the ambiguity described above, would rule an under-59½ year old claimant ineligible due to withdrawing his entire 401(k) and make the claimant appeal the decision and make the above arguments at a referee’s hearing.

Ultimately, I think the odds are that the law will ultimately settle on specifically permitting full benefits to be paid to someone who withdraws all funds from a 401(k) with a penalty while under the age of 59½. I think this is likely because it is consistent with the case law described above and it avoids having to formulate a policy to address a claimant’s own contributions to a 401(k) as distinct from an employer’s contribution. For the practitioner, I think it would be prudent to inform his client of the risks described above, and even if the chances of success are high, to be prepared to have to engage in the hearing process to arrive there.

Originally published on December 21, 2012 in The Legal Intelligencer Blog and can be seen here.

A question was recently posed to me asking whether a withdrawal from a 401(k) would cause one’s unemployment compensation benefits to be denied, be diminished or even cease if already in payment. The answer to this inquiry is not totally clear.

43 Pa.C.S.A. 804(d)(2)(i) states: “Periodic payment, under a plan maintained or contributed to by a base period or chargeable employer, the weekly benefit amount payable to such individual for such week shall be reduced, but not below zero, by the pro-rated weekly amount of the pension as determined under Subclause (ii)” and 43 Pa.C.S.A. 804(d)(2)(ii) states: “If the pension is entirely contributed to by the employer, then one hundred per centum of the pro-rated weekly amount of the pension shall be deducted. … [I]f the pension is contributed to by the individual, in any amount, then fifty per centum of the pro-rated weekly amount of the pension shall be deducted.”

The obvious questions that arise are, is a 401(k) a pension under the above statutes, and what if someone withdraws funds from their 401(k) before he is of retirement age as one would withdraw funds from a bank account? Answers to these questions are not readily forthcoming from the cases decided under the unemployment compensation law, but need to be parsed from cases dealing with other retirement vehicles (Wise v. Unemployment Compensation 707 A.2dc 627 (Pa.Cmwlth. 1997)).

After a review of the Wise case, it appears that if someone withdraws money from a 401(k) after he has reached an age of 59½, which enables the withdrawal to be made without a penalty, then the statutory guidelines laid out above apply and unemployment compensation benefits are reduced, possibly to zero. If someone is under the age of 59½ and rolls over the funds in his 401(k) into another retirement vehicle/investment in order to avoid the penalty for withdrawal, but does not withdraw any of the funds in it, then the above guidelines laid out do not apply and the unemployment compensation claimant can receive benefits without the statutory reduction in the same. Indeed, the Wise court opined that a roll over is not actual receipt of the funds and the claimant ought not be penalized with a reduction of unemployment benefits.

Unfortunately, courts generally have not directly addressed a situation in which someone who is under 59½ withdraws all of his funds from his 401(k), and pays the 10 percent penalty required for so. The court appears to imply that it does not believe it is just, or consistent with legislative intent, to make someone pay a penalty on the withdrawal and also be subject to a reduction of unemployment compensation benefits per the above statutory guidelines, as that would amount to a double penalty; however, the court did not rule on this scenario.

One question that the court does not appear to have addressed at all is if a claimant withdraws all funds from a 401(k) (with penalty) under the age of 59½, which could lead to a reduction of unemployment compensation benefits, does it matter if the contributions were made solely by the claimant, were made solely by the employer or the contributions came from both sources. If the 401(k) is comprised entirely of a claimant’s own contributions, would not those assets be his own as if he had contributed to a bank account, which would not affect benefits at all under normal circumstances? Are an employer’s contributions somehow different?

Per the Wise court’s dicta, one could reach the conclusion that one can withdraw all funds from a 401(k) under the age of 59½, pay the penalty for doing so, and still be eligible for the full unemployment compensation benefit amount. In saying that, however, due to government budget constraints and current economic conditions, the Department of Labor (and sometimes the courts) has been trending toward finding and justifying reasons to reduce or eliminate unemployment compensation benefits. Indeed, even if a claimant would be ultimately successful using the arguments laid out above, I would not at all be surprised if the Unemployment Compensation Board of Review, taking advantage of the ambiguity described above, would rule an under-59½ year old claimant ineligible due to withdrawing his entire 401(k) and make the claimant appeal the decision and make the above arguments at a referee’s hearing.

Ultimately, I think the odds are that the law will ultimately settle on specifically permitting full benefits to be paid to someone who withdraws all funds from a 401(k) with a penalty while under the age of 59½. I think this is likely because it is consistent with the case law described above and it avoids having to formulate a policy to address a claimant’s own contributions to a 401(k) as distinct from an employer’s contribution. For the practitioner, I think it would be prudent to inform his client of the risks described above, and even if the chances of success are high, to be prepared to have to engage in the hearing process to arrive there.

– See more at: http://thelegalintelligencer.typepad.com/tli/2012/12/is-it-a-okay-withdrawing-from-a-401k-for-uc-.html#sthash.GsrbUtlX.dpuf

A question was recently posed to me asking whether a withdrawal from a 401(k) would cause one’s unemployment compensation benefits to be denied, be diminished or even cease if already in payment. The answer to this inquiry is not totally clear.

43 Pa.C.S.A. 804(d)(2)(i) states: “Periodic payment, under a plan maintained or contributed to by a base period or chargeable employer, the weekly benefit amount payable to such individual for such week shall be reduced, but not below zero, by the pro-rated weekly amount of the pension as determined under Subclause (ii)” and 43 Pa.C.S.A. 804(d)(2)(ii) states: “If the pension is entirely contributed to by the employer, then one hundred per centum of the pro-rated weekly amount of the pension shall be deducted. … [I]f the pension is contributed to by the individual, in any amount, then fifty per centum of the pro-rated weekly amount of the pension shall be deducted.”

The obvious questions that arise are, is a 401(k) a pension under the above statutes, and what if someone withdraws funds from their 401(k) before he is of retirement age as one would withdraw funds from a bank account? Answers to these questions are not readily forthcoming from the cases decided under the unemployment compensation law, but need to be parsed from cases dealing with other retirement vehicles (Wise v. Unemployment Compensation 707 A.2dc 627 (Pa.Cmwlth. 1997)).

After a review of the Wise case, it appears that if someone withdraws money from a 401(k) after he has reached an age of 59½, which enables the withdrawal to be made without a penalty, then the statutory guidelines laid out above apply and unemployment compensation benefits are reduced, possibly to zero. If someone is under the age of 59½ and rolls over the funds in his 401(k) into another retirement vehicle/investment in order to avoid the penalty for withdrawal, but does not withdraw any of the funds in it, then the above guidelines laid out do not apply and the unemployment compensation claimant can receive benefits without the statutory reduction in the same. Indeed, the Wise court opined that a roll over is not actual receipt of the funds and the claimant ought not be penalized with a reduction of unemployment benefits.

Unfortunately, courts generally have not directly addressed a situation in which someone who is under 59½ withdraws all of his funds from his 401(k), and pays the 10 percent penalty required for so. The court appears to imply that it does not believe it is just, or consistent with legislative intent, to make someone pay a penalty on the withdrawal and also be subject to a reduction of unemployment compensation benefits per the above statutory guidelines, as that would amount to a double penalty; however, the court did not rule on this scenario.

One question that the court does not appear to have addressed at all is if a claimant withdraws all funds from a 401(k) (with penalty) under the age of 59½, which could lead to a reduction of unemployment compensation benefits, does it matter if the contributions were made solely by the claimant, were made solely by the employer or the contributions came from both sources. If the 401(k) is comprised entirely of a claimant’s own contributions, would not those assets be his own as if he had contributed to a bank account, which would not affect benefits at all under normal circumstances? Are an employer’s contributions somehow different?

Per the Wise court’s dicta, one could reach the conclusion that one can withdraw all funds from a 401(k) under the age of 59½, pay the penalty for doing so, and still be eligible for the full unemployment compensation benefit amount. In saying that, however, due to government budget constraints and current economic conditions, the Department of Labor (and sometimes the courts) has been trending toward finding and justifying reasons to reduce or eliminate unemployment compensation benefits. Indeed, even if a claimant would be ultimately successful using the arguments laid out above, I would not at all be surprised if the Unemployment Compensation Board of Review, taking advantage of the ambiguity described above, would rule an under-59½ year old claimant ineligible due to withdrawing his entire 401(k) and make the claimant appeal the decision and make the above arguments at a referee’s hearing.

Ultimately, I think the odds are that the law will ultimately settle on specifically permitting full benefits to be paid to someone who withdraws all funds from a 401(k) with a penalty while under the age of 59½. I think this is likely because it is consistent with the case law described above and it avoids having to formulate a policy to address a claimant’s own contributions to a 401(k) as distinct from an employer’s contribution. For the practitioner, I think it would be prudent to inform his client of the risks described above, and even if the chances of success are high, to be prepared to have to engage in the hearing process to arrive there.

– See more at: http://thelegalintelligencer.typepad.com/tli/2012/12/is-it-a-okay-withdrawing-from-a-401k-for-uc-.html#sthash.GsrbUtlX.dpuf

Keeping things Separate During Separation

A typical family case between two people often involves more than one issue to be litigated between them.  Most commonly, a divorcing couple will also be pursuing cases involving child custody and child (and/or spousal) support simultaneously.  As these sorts of cases involve the same people and similar issues, people sometimes want to handle them together.  In one way, it makes logical sense to handle them together, but, when considering applicable legal procedures and issues, it is ultimately unwise to do so for most cases.  Please note that this post deals with situations where the parties elect to enter into an agreement on these matters and are seeking the best way forward to facilitate that.  Obviously, if there is an impasse between the parties, then agreements will not be prepared and filed, regardless of whether they follow best practices.

Divorce, custody, and support, though all involve the same set of people and similar facts and issues, are all procedurally litigated independently.  Each gets a unique case number.  In larger jurisdictions (e.g.: Philadelphia) each gets a different judge.  Court orders are entered into each case individually by a judge or court.  Although related, the legal arguments, the applicable laws, and the relevant facts at play in each, are different.  Based on the above, though divorce, custody, and support all have the appearance of being facets of the same case, they are, in actuality, all different cases.  As a result, in most cases, it is unwise to treat them as the same case when bringing them to a resolution in an agreement.

The most common way to bring these sorts of cases to a resolution together is through a global and/or omnibus contract/agreement.  The agreement lays out, in some combination, the details for all the property division to be done, all of the support to be paid, and all of the custody issues to be addressed.  Generally speaking, as the divorce precipitates the custody and support issues, the global agreement is filed with the divorce and a Decree in Divorce is entered with the global agreement.

Although the combined case described above appears to be logical, clean, and neat, there are potentially significant logistical problems in enforcing the custody and support aspects of it.  The main issue is the fact that the Court views divorce, custody, and support as separate legal cases and one cannot seek enforcement of a custody and/or support matter in what is ostensibly a divorce agreement (it is a divorce agreement as it is filed with the Decree in Divorce).

For example, working out one’s custody in a divorce agreement means, under the current procedures, there is no case or agreement in custody.  As a result, when one attempts to enforce the custody arrangements laid out in a divorce agreement, there is no custody case established to provide the context in which to seek enforcement of the divorce agreement.  One cannot file for enforcement in divorce court because custody is not a divorce issue.  Further, if custody is worked out in a divorce agreement, and no custody case is ever opened, there is no custody order to enforce or ask a police officer or other third parties (e.g.: schools or therapists, &c.) to use/have for their purposes.  Ultimately, when one seeks enforcement or use of a custody arrangement in a divorce agreement, a custody case will have to be opened and the divorce agreement entered into the record as an order.  The most expedient way to deal with this is to simply file a custody case at the outset, prepare and file a separate custody agreement (or, if an omnibus agreement is insisted upon, the omnibus agreement itself), and request a custody order in the context of a custody case based on the terms of the agreement.

The issues that arise in the context of co-mingling divorce and child support, and my solution, is the same as when one co-mingles divorce and custody: as they are separate matters they should be filed separately and concluded with separate agreements.  The negative impact of an omnibus divorce agreement may be worse and more complicated for support than custody.  Customarily, child support is entered by an order of court, in the context of a separate support order, and is paid via wage garnishment through an agency of the Commonwealth of Pennsylvania which tracks payments, maintains payment records, and calculates payments, arrearages, and/or credits.  If support is done thought a divorce agreement, and not through support, the payments are made personally by the child support obligor (the person who pays), the Commonwealth does not keep track of payments (or lack there of) and cannot, through the operation of applicable law, apply wage garnishment upon the income of the child support obligor.  As a result, when one attempts to modify and/or enforce a child support arrangement, and possibly establish a wage garnishment, within a divorce agreement, one, much like a custody case described above, has to start an entirely new support case in support court and enter the divorce agreement there.  As above, if this support case could have been established at the outset, this issue could have been avoided.  The extra hurdle in the context of support is calculating the amount of the payments made, determining the dates when those payments were made, and calculating arrearages or credits in support.  If years pass before enforcement and/or modification is requested, finding the records for the payments made and/or missed may be lost or difficult to find or simply non-existent because the payments were made in cash and without receipt instead of through a traceable method through an agency of the Commonwealth of Pennsylvania.  As a result, an accurate rendering of the support paid and/or owed may be impossible; at the very least the effort to come up with the figures is time consuming and a recipe for litigation.

Although “getting a case over with” through a single agreement seems easy and logical, enforcement and/or use and/or modification of that agreement can become very tricky.  The benefit one receives today for the simplicity of a single omnibus agreement is not worth incurring the headaches from that omnibus agreement in the future, especially when the alternative to the omnibus agreement is not that much more time and work.  At the time of agreement, all one must do is establish separate custody and support cases and file an agreement with each.  As the parties are in agreement on the issues, there is virtually no additional litigation and no court appearances necessary.  Although three different agreements seem cumbersome today, one will be happy to have done it that way in the future when it comes time for use, modification, and/or enforcement of those agreements.

Movin’ on Up?

Here is an article by Adam S. Bernick, Esquire who is of counsel with my firm.  This article was originally published in Upon Further Review on December 18, 2012, and can be seen here.

The Philadelphia Zoo Tries to Put Bars Around its Visitors

I just purchased a season pass to the Philadelphia Zoo last weekend.  We took a trip to the Zoo last year and my older son loved it and so we decided to try to go regularly this year as it is a nice place to be outside and do something and, for my son, a nice place to do something fairly interesting and educational that does not involve video games, death defying stunts, or tormenting his younger brother.  The fact that he spent an hour staring at a gorilla, which has sparked something of a gorilla obsession for him, is a little weird, but so be it; everyone has their “things”!  At least it led to an evening watching the original King Kong movie after our visit to the Zoo, which is one of my favorite movies.

My visit to the Zoo last weekend inspired this post because of very curious language I discovered on the back of my admission ticket when I got home.  The ticket to park at the Zoo had the normal disclaimers more-or-less about how the Zoo is not responsible for damage done to one’s car in the lot and that the ticket only entitles someone to park there in order to visit the Zoo for the day.  I did not find any of this language questionable or objectionable; indeed, I found it pretty typical.

The back of the admission ticket was what struck me.  The language on the back of the admission ticket says the following: “By accepting this ticket guest agrees to hold the Zoo and its employees harmless and waive any claim against the Zoo and its employees for bodily injury to guest or damage to guest’s property even if caused in whole or in part by the negligence of the Zoo or its employees.”

This language is very problematic in many ways.  Language like the above is commonly known as an “exculpatory clause” which, perhaps obviously, tries to exculpate one party from liability or guilt from certain actions or instances.

First of all, when it comes to exculpatory clauses, they are to “be strictly construed with every intendment against the party seeking their protection.” Phillips Home Furnishings v. Continental Bank, 231 Pa. Super. 174 (1974) citing Kotwasinksi v. Rasner, 436 Pa. 32 (1969). Furthermore, an exculpatory clause will not be valid if there is a disproportionate bargaining power between the parties to the contract at issue. Id. citing Hennigsen v. Bloomfield Motors, Inc., 161 A. 2d 69 (NJ, 1960).  In addition, an exculpatory clause that a Court is unwilling to enforce is where the terms of a contract are unwilling to be altered by its maker.  In other words, a contract where the other party (i.e.: not the drafter of the contract) “has no bargaining power and must accept [the] terms” presented to him and is “powerless to alter” them, with rejection of the contract as the only alternative to executing the contract.  There is no meeting of the minds in this sort of contract negotiation. Galligan v. Arovitch, 421 Pa. 301 (1966).  In addition to the relationship of the parties to a contract, the Court also analyzes whether a party to a contract were “aware of and understood the terms of the release before his agreement can be deemed a particularized expression of the intent to assume risk.” Wang v. Whitetail Mountain Resort, 933 A.2d 110 (Pa.Super., 2007) citing Chepkevich v. Hidden Valley Resort, 911 A.2d 946 (Pa.Super.2006).  Finally, “[i]n determining whether a releasing party had such awareness and understanding, we consider: 1) the release’s placement in the document; 2) the size of the release’s print; and, 3) whether the release is highlighted in some fashion.” Id.,citing Beck-Hummel v. Ski Shawnee, Inc., 902 A.2d 1266, 1269 (Pa.Super.2006)

Based on the above, I think it is pretty clear that the language located on the back of the Zoo’s admission ticket,  in very small print (albeit all in capitals), is problematic. The contract relationship is obviously imbalanced.  A person seeking admission to his local zoo has no choice but to accept the exculpatory clause else he cannot gain access.  Further, the exculpatory clause is printed on an existing ticket which is handed to the Zoo’s guest upon entry.  The guest cannot bargain and negotiate with the person at the Zoo’s ticket window about the terms of the clause and try to change them.  In fact the person at the ticket window likely has no authority at all to act on the Zoo’s behalf in order to change or alter the language on the ticket even if he wanted to do it.  So, obviously, there is a “take-it-or-leave-it” aspect to the admission ticket.  In terms of whether the recipient of the admission ticket was aware of and understood the terms of the exculpatory clause, I think even the average observer can see that there is likely no awareness of this clause, let along comprehension, at the time of purchase.  Who reads the ticket when it is handed to him?  Who gets the language mentioned or explained by the person at the ticket window?  I would guess that the person at the ticket window has likely never read it either or know what it means.  What non-lawyer knows what an exculpatory clause is or how it works and how it could effect him?  Remember, this is all in the context of waiting in a line with dozens of other people at a zoo ticket window with children (likely making some sort of ruckus) in the hot sun in the middle of the day.  Who is taking the time to read the ticket let alone understand the technical legal jargon on it?  Speaking as a parent, I am lucky to be able to receive the ticket from the window and cram it in my pocket in a reasonable way while in line let alone read it intelligently.

Second, even if none of the above applied, I think there are serious contractual issues at play.  The basics of a contract is that one party makes the offer of terms while another accepts them in consideration for some sort of exchange of goods and/or money.  The exchange of money for admission to the Zoo is a type of contract.  The Zoo is trying to append the exculpatory clause as a term of their offer of admission in exchange for one’s money.  The problem with that is that the exculpatory clause is not ever disclosed to the guest until after the transaction is made (i.e.: money for ticket) and once the transaction is made, the Zoo is clear that (from its website and the back of the admission ticket) “[a]ll ticket sales are final and may not be resold. No exchanges or refunds for any reason including inclement weather.”  The transaction for the ticket is as one may expect: the guest stands in long line outside (in whatever weather there is on a given day) with multiple other people (most of which have their share of rambunctious children including the guest purchasing the ticket) who, after shouting through a little porthole in a window with poor acoustics, receives tickets in exchange for money through a little slot at the bottom of the window.  The interaction between the guest and the ticket agent is one which merely involves inquiring into how many people (and their respective ages) for whom the guest would like admission tickets and the payment for the tickets.  It is not until after the tickets are purchased – for which there is no refund – that the guest learns that suddenly he has agreed to an exculpatory clause.  Therefore, this clause was not bargained for by the guest as he had no idea he was buying the clause along with his ticket as the small print on the back of the ticket is the only place where it exists and is communicated to the guest and that all takes place after a non-refundable purchase.  Indeed, not even the “tickets” portion of the Zoo’s website (seen here) has any mention of the exculpatory clause (though they are sure to make sure the reader knows that the purchase is non-refundable on the same page).  On the Zoo’s website, the exculpatory clause language is hidden on the “print tickets” page here, which is a page that one would not look at if purchasing tickets at the window (as I did).

One final note before I conclude.  Children under two years old require no ticket so I suppose one would presume that, even if enforceable, the exculpatory clause does not apply to them, which I find curious in itself.

So, suffice it to say, I think the inclusion of the exculpatory clause on the Zoo’s admission ticket is pretty sneaky and, if I may say so, pretty sleazy, especially considering it purports to exculpate its own negligence.  I do not think the clause is particularly enforceable and is of questionable legitimacy in contractual terms.

Application of Relocation

In January 2011 the Pennsylvania legislature passed a new custody statute, 23 Pa.C.S.A., Section 5337, which included reforming the procedures regarding custody relocation. Unfortunately for practitioners and litigants, although the new statute is long on specifics on the factors to consider when pursuing relocation, it is short on what is considered a “significant impairment” of custody due to the relocation and whether filing for relocation is a tacit admission that one’s matter is, in fact, a relocation matter. Fortunately, the recent case of C.M.K. v. K.E.M., 45 A.3d 417 (Pa.Super.2012) helps clarify these gray areas in the new custody statute.

 

Under the new custody statute, a parent must petition the court for permission to relocate before doing so, or suffer the risk of being sanctioned and being recalled from his/her new location if maintaining custody in the new location is denied by the court. What precisely defines “relocation” is unclear from the language of the statute. The statute vaguely defines “relocation” as something which “significantly impairs the ability of the non-relocating party to exercise custodial rights”; but what exactly is a significant impairment? Is a move 30 miles away a significant impairment? What if the 30 miles takes an hour to drive? What if the moving parent does not believe his/her move is a relocation? If s/he moves presuming his/her situation is not a relocation, but is wrong in that presumption,s/he may be sanctioned for making the move. Yet, if the parent’s presumption is correct, that his/her situation is not a relocation, but plays it safe and petitions to relocate anyway, is filing for the relocation a tacit concession that his/her attempt to move is a relocation?

 

In C.M.K., the Child was six (6) years old and in the second grade. He enjoyed his school, had many friends, and was involved in multiple sports. In fact, the Child was potentially a candidate for the gifted program at his school. The Child’s Father enjoyed a thriving relationship with his son, having partial custody of him every other weekend and every Wednesday night. In addition, Father would attend many of the Child’s sporting events, school activities, teacher/school meetings, and medical appointments. Furthermore, Father’s family, especially his parents, also had regular contact with the Child. Father’s parents would have dinner with the Child each week during Father’s Wednesday custodial time. Interestingly, the Child’s Mother also had dinner with the Child and Father’s parents every Monday night, as well as having used them for her baby sitting needs.

 

In petitioning for relocation, Mother argued that her proposed new residence was only sixty-eight (68) miles away, a distance not prohibitively far to drive. She further argued that the Child’s new school was smaller, with potentially more individual focus, than his present school. Mother was also moving closer to her own family which she believed would benefit the Child. Mother selected a three (3) bedroom mobile home on 2.5 acres of land to move to. Finally, as a way to help mitigate Father’s inconvenience, she offered him an approximately additional twenty (20) hours of custody time with the Child which would enable Father not to lose any total custody hours due to her relocation.

In deciding this case, the Court made two significant rulings. The first was simply to clarify whether there is a procedural vulnerability for someone who elects to “play it safe” and petition for relocation, even if the petitioner did not believe his/her case to be a relocation matter. The Court made it abundantly clear that someone who files for relocation does not tacitly concede that the case is, in fact, a relocation case.

 

The Court also clarified how it determines whether a party’s custody is “significantly impaired” in order to warrant identifying a case as a relocation matter. If a move does not “significantly impair” a party’s custody, then the matter is not a relocation matter and proceeds like a typical custody matter. Further, the Court also provided insight into specifically how the ten (10) relocation factors from Section 5337(h) apply to a custody case once it is determined to be a relocation matter in order to justify and/or permit the relocation to go forward. The Court made it clear that simply the number of hours of custody is not the only element to the analysis. The Court looks at the quality of custody as well.

 

In C.M.K. the Court ruled that Father had a very integrated and involved parenting relationship with the Child and Mother. Mother moving away such a distance would prevent Father from, as was his established practice, attending the Child’s sporting events and school functions, and so on; it would also prevent Father’s parents, as was their long- established practice, from spending their customary time with the Child. To put it simply, the Court believed that Mother’s proposed relocation would significantly impair Father’s established custody practices. Therefore, as the Court ruled that what Mother was proposing was a “significant impairment” of Father’s custody, the Court established Mother’s case to indeed be a relocation case.

 

Now established as a relocation matter, Mother had the burden to demonstrate that the relocation justified the “significant impairment” of Father’s custody per the ten (10) relocation factors from Section 5337(h). The Court simply did not believe that what Mother presented as her advantages in moving were sufficient to justify imposing a “significant impairment” on Father’s involvement with the Child. The Court believed that causing the Child to move away from, not just his Father’s involvement, but also the Child’s sports teams, involved grandparents, friends, and potential gifted program, would be detrimental to the Child and not outweighed by the alleged benefits of the move claimed by Mother. Indeed, the Court noted that Mother’s parents were not quite as integral to the Child’s life as Father’s parents and Mother’s economic benefits for moving were speculative at best.

 

Therefore, in sum, this case has two lessons. First, filing for relocation is not a tacit concession that one’s move is in fact a relocation. Second, the Court looks at all aspects of a Child’s custody and lifestyle when determining whether a relocation is beneficial for the Child and is a “significant impairment” of the other party’s custody.

Originally published on December 17, 2012 in Upon Further Review and can be seen here and reprinted in The Pennsylvania Family Lawyer in Volume 35 Issue No. 1 (March 2013).

Christian Legal Clinic – 6/14 Update

As most of you know I am a long time volunteer of the Christian Legal Clinics of Philadelphia and I have been sitting on its Board of Directors for over a year now.  You can learn more about the Clinic here.

We have been going through some tumultuous few months as both of our staff members have taken a calling to be missionaries to Haiti.  Needless to say, this development has been challenging for us, both in terms of saying “goodbye” to really valuable members of our team, but also hiring good and qualified replacements within our very modest budget.  We are also trying to expand into Kensington (a neighborhood in Philadelphia), Germantown, and other areas in order to expand our reach and help more people.

We help literally hundreds of people every year try and secure justice in the legal system.  We are always trying to improve our services, help more people, and be able to do more for the people we are already helping.

Of course, like any charity organization, in order to help others we need your help to do it.  Please come out to one of our Clinic locations to see what we are doing first hand; our Clinic locations are described here.   Also, we are always in need of money to fund our ministry.  If you feel led to donate, you can do so here.  If you cannot do these things, please pray for us and our ministry or donate your time as we always need help with administration, filing, counseling, chaplaincy, and other similar things in the everyday working of the Clinic.

Finally, the Clinic exists to help people secure justice in the American legal system here in the Philadelphia area.  More importantly, however, the Clinic exists for people to be the face of Jesus to those who need it and to help people, not just through their legal issues, but through their spiritual ones as well, which so often are closely related to their legal issues.  Help us heed Christ’s call to help “the least of these” by giving to our efforts.  Always remember that Jesus identified himself as among those called “least” as they, in the end, will be great.

Before I forget, please be sure to watch this great video as it is shows a few of the personal stories of the people the Clinic has helped.  Thanks and God bless.

You Can’t be a Jack of All Trades

Check out Faye Cohen’s blog post “You Can’t be a Jack of All Trades” on her blog Toughlawyerlady here.

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