In the wake of Henry Ekker’s death, the leadership of the Estate Planning and Administration, Tax, and Elder Law practice groups is now being ably provided by partner Wade M. Fisher. Wade joined the firm as an associate in 2004 and was elevated to partnership March 1, 2011. He has extensive experience in all aspects of planning and settling estates, the creation of trusts, personal and corporate taxation, and elder law. Prior to graduating summa cum laude from University of Akron School of Law in 1994, Wade worked for more than ten years as an accountant, and he brings that experience to bear on the problems of structuring and planning for succession in businesses of all sizes. Both his law school and undergraduate education included numerous awards and academic honors attesting to his keen intellect. We are proud to announce his new role in the leadership of the firm.

Attorney Wade Fisher has been admitted to practice before the United States Tax Court. The Tax Court, which is established by Congress under Article 1 of the United States Constitution, primarily resolves disputes regarding tax deficiencies determined by the Internal Revenue Service but also has jurisdiction to handle other matters such as ordering the abatements of interest, awarding administrative and litigation costs, determining relief from joint and several liability on joint returns, and reviewing awards to whistleblowers. Fisher is also admitted to practice in the courts of the Commonwealth of Pennsylvania and in the United States District Court for the Western District of Pennsylvania.

               By Wade M. Fisher             

Jacob Hollerbush and Dorie Heyer had a private wedding ceremony on August 24, 2006.  A few weeks earlier, the couple had applied for a marriage license pursuant to Pennsylvania law, and the minister who served as the officiant at the ceremony filed the completed license shortly after the ceremony.  Nonetheless, a judge subsequently declared that their marriage was void from its inception. 

After hearing Heyer v. Hollerbush discussed at a recent continuing legal education seminar, I was left wondering how many other Pennsylvanians have been married under such circumstances that the validity of their marriages could be called into question.  The issue is important because when a marriage is voidable the parties are at risk of losing the rights and privileges of marriage which include, among others, the right to seek spousal support and the equitable distribution of marital property in a divorce proceeding, the right to inherit from their spouse’s estate and to take measures to prevent being disinherited by their spouse, and the right to spousal employment and certain Social Security and tax benefits.

The Heyer case concerned the qualifications of the minister who performed the marriage ceremony.  Pennsylvania law generally provides that the persons qualified to solemnize marriages include various judges, mayors of cities and boroughs within the state, and a “minister, priest or rabbi of any regularly established church or congregation.”

The minister who purportedly married the couple received his ministry credentials by completing an online application on the website of the Universal Life Church.  The minister was not a member of the Universal Life Church prior to his so-called ordination, had never attended a meeting of the church, did not have a congregation, and had no place of worship.  Based on these facts, the court concluded that the minister was not a minister “of any regularly established church or congregation” and voided the marriage.

One alternative for couples who have had their marriage voided is the establishment of a common-law marriage.  Pennsylvania law generally provides, however, that no common-law marriage contracted after January 1, 2005 is valid, and, accordingly, establishing a common-law marriage would be an option for only those couples who can prove that they satisfied the requirements for a common-law marriage prior to that date.

People who are uncertain about the validity of their marriage, whether because of the qualifications of the officiant who solemnized the marriage or for any other reason, can petition the court for a declaration of the validity or invalidity of their marriage, and it might be appropriate for them to seek legal counsel from a family law attorney to determine the advisability of doing so.

Wade is an associate at our firm.  His practice areas include estate planning and administration, elder law, and corporate law.

The information in this article is provided for information purposes only.  Nothing in this article is intended as legal advice, nor should it be interpreted as such.  If you need advice regarding legal matters, seek the advice of an attorney.

By Russell J. Adkins, Associate

Due to the difficult to quantify “best interests of the child” standard, child custody cases have often left parents – particularly those who have brought unsuccessful custody petitions before the court – disappointed, confused, and yearning for a greater explanation for a judge’s custody determination.
Prior to the enactment of Pennsylvania’s new child custody law, which took effect on January 23, 2011, it was common for even lengthy, bitterly-contested custody battles to be concluded with a one-sentence court order that did little to address the many issues brought before the Court. In those cases, after months of litigation, costs and great emotional strain, parties and their attorneys were left grasping for an explanation as to how the judge could not be persuaded by the case that was presented. After all, given the nature of a custody dispute as well as the emotional investment made by the parties, it is often inconceivable to a custody litigant when a judge does not decide in their favor.
As part of the new law, Pennsylvania family court judges will be required for the first time to state on the record (either orally in open court or in a written opinion) the reasons behind a child custody determination. In addition, the new law brings with it the inclusion of sixteen (16) specific factors that a judge must consider when determining the best interests of the child. These factors, which are too lengthy to reprint in this space, have been developed through many years of custody case law. While the factors are generally well known to experienced family law practitioners, they certainly are not as well known to custody litigants, and certainly to incorporate these factors into the custody statute should add some clarity for all parties to custody litigation. A complete listing of these factors can be found here.
Relocation
Another significant change in the new law, found at 23 Pa.C.S. 5337 is the requirement that a parent seeking to relocate with children must provide sixty (60) days advance notice to the other parent, who then has thirty (30) days to file a counter-petition with the Court objecting to the proposed relocation. The introduction of structured framework for the relocation process is a welcome change to an area of the law which is often a source of parental anxiety and fiercely-contested court battles, particularly where a parent is seeking to relocate a long distance. In addition to providing safeguards against sudden, unauthorized moves (whether or not a custody order has previously been in place), the new framework also creates a good foundation for attempts at compromise and settlement by forcing the parties to set forth their respective positions well in advance of the relocation hearing.
Gender-Neutral Decision-Making
The new law also explicitly provides that judges are to make custody determinations without regard for the gender of the parties – specifically, that no party shall receive preference based upon gender in any custody award. While this is a step toward making sure each parent stands from the outset of a case, It is important to note that this is not a per se presumption favoring shared custody (a change which was lobbied for by some groups, but not included in the final version of the statute). This provision constitutes more of a clarification or point of emphasis than an actual change in the law, likely in a direct attempt to change the perception held by some that mothers have received preferential treatment in custody cases.
Other highlights of the new custody law include:
- At 23 Pa.C.S. 5329(a), an expanded list of crimes that must be considered by judges in the event of a conviction against a parent or the household member of a parent. The full text can be found here.
- The authority for the Court to require that each party to a custody dispute submit a “parenting plan” to aid the judge in resolving the conflict. Parenting plans would act as a party’s proposed roadmap for caring for the child(ren) at issue, including topics like custody schedules and transportation, education, religion, health care, childcare arrangements, procedure for resolving proposed changes and other disputes that arise. The parenting plan law, along with the required format, can be found here.

Russell is an associate at our law firm. His practice area includes family law, divorce, child custody, domestic relations, pre- and post-nuptial agreements, adoption, and name changes.

This article is for informative purposes only, and is not intended to provide legal advice. This article is merely an overview of Pennsylvania’s new custody law, and is not a substitute for a full review of the entire statute and applicable case law and rules of civil procedure. Individuals involved in a custody dispute, or in need of legal advice of any kind, should contact the licensed Pennsylvania attorney of their choosing to discuss their circumstances.

WINNING FORMULAS: APPLYING SCIENCE TO LITIGATION
By: Richard W. Epstein, Managing Partner

In litigation an attorney’s job is to determine the facts and themes which will convince jurors to decide in favor of his client. At Ekker, Kuster, McConnell, & Epstein, we apply the same statistical and demographic data and formulas to litigation that politicians and corporations have used to win elections and market their goods and services.
In 2001, Dr. Oscar McKnight and Mr. Richard Epstein formed Scientific Legal Services (www.scientificlegalservices.com) to bring the science of statistics and market research to litigation. No corporation or politician would release a new product to market or run a political campaign without market research, and Ekker, Kuster, McConnell & Epstein does not mediate or try a complex case without testing the facts and arguments of the case on potential jurors.

Basically, the process works as follows:

• Dr. McKnight and the lawyers of Ekker, Kuster, McConnell & Epstein work with the litigation team to develop a statistically valid survey that contains all of the important aspects of the case. The conceptual development begins with professional readers highlighting the important facts of the case. Advanced psychometric techniques are then applied to these facts to validate both the conceptual development and questions of concern.
• Once the survey is validated, it is distributed to three separate population pools to answer the questions presented in the survey.
• The same statistical analysis and formulas that are used by political candidates (Karl Rove) and major corporations to develop winning themes for elections or marketing campaigns are used by SLS to predict the outcome of litigation.
• SLS measures and evaluates key facts, issues, demonstrative evidence, and attorney presentations such as openings or closings in order to predict their effect on the outcome of a case.
• The process is creative and fluid and can be used to measure anything that the litigation team desires.
• The core product provides an invaluable comment section which mimics jury deliberations, giving the lawyer an understanding of why a certain result was obtained and which factors influenced the result.

These techniques have been used by EKME in automobile accidents, construction accidents, sexual harassment, age discrimination, nursing home negligence cases, and medical malpractice claims. Through our demographic and statistical analysis, EKME obtains a clear measurement of the amount of damages jurors will return as well as the arguments to use to impose liability and damages.
In a sexual harassment case, they determined that the female attorney’s jewelry distracted potential jurors and that the male attorney did not fit the juror’s perception of a bank attorney. In a construction accident case, Ekker, Kuster, McConnell, & Epstein was able to measure the impact of a severely injured plaintiff’s hunting trip with the defendant three months after the accident or his use of an ATV on the value of his claim.
By applying Science Legal Services to litigation, Ekker, Kuster, McConnell & Epstein can dramatically increase the odds of success for their clients.

Richard Epstein is the Managing Partner at EKME. He is a litigation attorney and has been practicing law since 1978.

THE INFORMATION PROVIDED IN THIS ARTICLE IS PROVIDED FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS ARTICLE IS INTENDED AS LEGAL ADVICE, NOR SHOULD IT BE INTERPRETED AS SUCH. IF YOU NEED ADVICE REGARDING LEGAL MATTERS, SEEK THE ADVICE OF AN ATTORNEY.

County called diamond in rough

By Monica Pryts Herald Staff Writer The Sharon Herald Thu Dec 30, 2010, 12:00 PM EST

MERCER COUNTY — Committee members of a new economic development organization met Wednesday in Hermitage to get ideas from an expert who shared his vision for Mercer County.

Daniel C. Gundersen spoke at Avalon Golf and Country Club at Buhl Park to a large crowd of area leaders, officials and business owners, offering advice on how organizations, governments and other key groups can better work together to create more jobs and further economic growth.

The Mercer County Growth Alliance, which is in the process of forming and looking for a chief executive officer, hopes to launch this weekend, said Richard Epstein, a member of the group’s search committee.

The alliance wants its members to come together to connect with each other and branch out to other regions to share resources.

To make that connection, the members need a positive attitude and with the right leadership and Gundersen’s expertise is a good starting point, Epstein said.

Gundersen, who’s held economic development positions with state government offices in Pennsylvania, Maryland, and New York, is a senior advisor with Econsult Corp., Philadelphia and serves on the board of the International Economic Development Council, a worldwide association for the economic development field. 

He’s never lived where he’s worked and is ready to settle down; he’s been impressed with the Mercer County area.

There’s always room for improvement, as the county’s unemployment rate for December was 10.7 percent, compared to the statewide 8.6 percent, he said.

“That’s not good.  In fact, that is very challenging,” Gundersen said.

Other areas of concern include the county’s small population, residents ages 65 and older who can’t be part of the workforce and low median-household incomes. 

The rate of high school graduates is good, but not many of those people earn bachelors or higher degrees compared to the rest of the state, he said.

Economic development is a relatively young field that started in the 1940s and it’s always changing.  There’s more of an awakening now with problems stemming from the nation’s recession, making it harder to figure out who’s responsible for creating and maintaining local jobs, Gundersen said.

Business and economic development leaders must be “hand-on champions” to gain the confidence and support of their communities with these fundamentals: infrastructure, innovation, intellectual capital, international, intrigue and investment.

“Do that and I think the future is very bright for this area,” Gundersen said.

The area doesn’t have all the necessary resources but some are just an hour away in Pittsburgh, Cleveland or Erie, and the county could consider itself the center of those regions, he said.

“Diamond in the rough; that’s Mercer County right now,”  he said.

BY: MARK LONGIETTI, OF COUNSEL

Sprinkler Requirement for 1-Family and 2-Family Homes Effective January 1, 2011 in PA

Effective January 1, 2011, in Pennsylvania, new construction of single family and two family homes will require installation of a fire suppression sprinkler system. There may be an exception to this requirement for such homes where the Building Permit was obtained before July, 2010 and certain steps were taken by the owner. Homeowners should consult with their building contractors. It must be stressed that the requirement only applies to new construction. Existing single family and two family homes have no such requirement in Pennsylvania.

This new requirement is the result of changes to the International Construction Code (ICC) which were adopted by the ICC at its national convention in Minneapolis, Minnesota. Several years ago, Pennsylvania adopted the ICC as its construction code, and periodic updates to the code automatically became a part of Pennsylvania law. More recently, Pennsylvania established an Advisory Committee, comprised of various stakeholders, including home builders, municipal officials, architects and engineers, to review code updates and to vote whether to include those updates in Pennsylvania’s code. Although it was believed that the Advisory Committee would reject the new sprinkler system requirement, it did not. Therefore, the requirement becomes effective on January 1, 2011.

The cost of installation of a sprinkler system as part of the construction of a home varies based upon location and whether the home will be served by a municipal water system. Home builders and consumers have expressed concern about the cost of homeownership increasing without a corresponding increase in the appraised value of the home; while firefighters have argued that such a requirement is important for safety reasons. In the 2010-11 legislative session, beginning on January 4, 2011, it is expected that the Pennsylvania legislature will consider a repeal of the new sprinkler system requirement, however, it remains unclear how quickly such legislation may progress and whether it will be successful. In the meantime, individuals considering building a new single family or two family home in Pennsylvania need to be aware of the requirement.

By: Wade M. Fisher

Attorneys Richard Epstein, Ron McCall, and Wade Fisher of the law firm of Ekker, Kuster, McConnell & Epstein, LLP participated as judges for the 2010 Grove City College Elevator Pitch Contest. The event was held on Thursday, October 28, 2010, in the Hall of Arts and Letters on the Grove City College campus.

An elevator pitch is a presentation to potential investors that can be completed in about the amount of time in which a conversation could take place during a typical elevator ride.

The contest is an event of the college’s entrepreneurship program but is open to students of all majors and classes. According to the entrepreneurship program’s website, the goal of the annual competition is to teach students to communicate effectively and allow their charisma and positive characteristics to shine through in just a short pitch.

In 2010, the contest was divided into separate categories for commercial enterprise and social enterprise, with four winning participants in each category awarded prizes of $250 each. Joshua Fisher, Christopher Marasco, Zoe Simek, and the team of Elise Stanchak and Joanna Abraham prepared and presented the winning pitches in the commercial enterprise division. The winners in the social enterprise division were Scott Moran, Lydia Smith, Kristen Yealy, and the team of Jimmy VanEerden and Gret Glyer.

Matthew Caiazza of Meridian Group; Yvonne English of Social Animal Media, LLC; Ken Faulconbridge of Northwest Savings Bank; John Mastrian of Black, Bashor & Porsch, LLP; Karen Palmer of PNC Bank; John Stillwaggon of Paparone, Stillwaggon & McGill; and Larry Fleming, retired Grove City College professor of accounting, also served as judges for the contest.

Wade an associate at our firm. His practice areas include estate planning and administration, elder law, and corporate law.

THE INFORMATION PROVIDED IN THIS ARTICLE IS PROVIDED FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS ARTICLE IS INTENDED AS LEGAL ADVICE, NOR SHOULD IT BE INTERPRETED AS SUCH. IF YOU NEED ADVICE REGARDING LEGAL MATTERS, SEEK THE ADVICE OF AN ATTORNEY.

By Wade M. Fisher, Associate

Because state law generally governs transactions involving real property, an unwary home seller or landlord could easily overlook the lead-based paint disclosure requirements contained in the federal Housing and Community Development Act of 1992.
Now known to be toxic, lead was once commonly used in paint as a pigment that created more vibrant colors. Among other benefits, lead also causes paint to dry faster and makes paint more resistant to the effects of weather.
According to the U.S. Environmental Protection Agency, however, the effects of lead poisoning can be serious. Adults suffering from lead poisoning can suffer from reproductive problems, nerve disorders, and high blood pressure and hypertension. The effects are more serious for children who can suffer brain damage, slowed growth, and behavior and learning problems. Lead poisoning also poses serious risks to pregnant women.
As a result, Congress enacted the Housing and Community Development Act of 1992. The Act generally requires home sellers and landlords to provide information about the risks of lead-based paint and details about the existence of lead-based paint at the property involved, to the extent known by the seller or landlord. The Act, however, does not impose an obligation to conduct any evaluation or investigation for such hazards.
The disclosure requirements generally apply to housing constructed prior to 1978. To satisfy the requirements, the seller or landlord generally must provide an EPA-approved pamphlet containing information about lead hazards and disclose the presence of any known lead hazards at the property, any information known about those hazards, and the existence of any records or reports pertaining to those hazards.
In addition to these disclosure requirements, the Act and the corresponding regulations contain other provisions that could easily be overlooked, such as the requirement that potential home buyers must have the opportunity to conduct an inspection for lead-based paint before being bound by a contract to purchase property covered by the Act.
Any person who fails to comply with the Act’s requirements can be held liable to the purchaser or tenant in an amount equal to three times the amount of actual damages incurred, and material violations could result in the imposition of a monetary penalty in addition to the payment of damages.
Accordingly, landowners who are about to enter into agreements for the sale or lease of houses built prior to 1978 would be wise to seek legal counsel to ensure their compliance with the requirements of the Housing and Community Development Act of 1992.

Wade an associate at our firm. His practice areas include estate planning and administration, elder law, and corporate law.

THE INFORMATION PROVIDED IN THIS ARTICLE IS PROVIDED FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS ARTICLE IS INTENDED AS LEGAL ADVICE, NOR SHOULD IT BE INTERPRETED AS SUCH. IF YOU NEED ADVICE REGARDING LEGAL MATTERS, SEEK THE ADVICE OF AN ATTORNEY

SUCCESSION PLANNING, ESTATE PLANNING, MEDICAID PLANNING
By: Henry M. Ekker, Partner

These three planning devices all have one thing in common. WHAT IF? In each type of planning, goals must be established. However, they are not the same goals.

Succession Planning requires the creator of a profitable private company to recognize that the company needs to survive that leader. If the creator feels he is and always will be indispensible the company ultimately will fail or at least not achieve its potential values. There are numerous ways to approach this concept.

Is there a method in place to replace key roles? This is a stubborn problem in many companies. The process should begin with adequate and reliable counseling.

Estate Planning is another topic that cannot be taken for granted. Estate plans set up prior to 2008 need to be reviewed, updated, and revised. The law is very uncertain so a family must take this situation and do the best possible plan to attempt to preserve assets for the survivors.

There are several types of trusts that accomplish various matters that need to be considered. Gifts are more important today than ever. Powers of Attorney differ in each state and the Healthcare Power of Attorney has changed by law. Therefore, a Power of Attorney and/or a Healthcare Power of Attorney may need immediate revisions to keep current.

Medicaid Planning is always a complex scenario. Most spouses consider this far too late in the planning stage. There is currently a five year look back on most assets and documents. Planning is essential at a reasonably early date.

Lastly, it must be remembered that if one becomes mentally incapacitated it is too late for that person to do any of the above planning.

Henry Ekker has been a member of EKME for 45 years. The primary focus of his law is Corporate and Business Law; Estate Planning and Administration; Elder Law; Mergers and Acquisitions; and complex divorce cases.

THE INFORMATION PROVIDED IN THIS ARTICLE IS PROVIDED FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS ARTICLE IS INTENDED AS LEGAL ADVICE, NOR SHOULD IT BE INTERPRETED AS SUCH. IF YOU NEED ADVICE REGARDING LEGAL MATTERS, SEEK THE ADVICE OF AN ATTORNEY.