Supinka & Supinka, PC

On June 28, 2011, Governor Corbett signed SB113, the Fair Share Act (Act 17-2011) into law in Pennsylvania. The Fair Share Act significantly changes Pennsylvania law regarding joint and several liability in most tort actions, such as actions involving negligence.

Under prior law, two or more persons who committed a wrong to cause an injury were “jointly and severally liable” to the injured party. That meant that each wrongdoer was liable for the full amount of the judgment, regardless of his degree of fault. For example, if there were two defendants and one was found to be 1% liable and the other 99% liable, both defendants were liable to pay the full (100%) amount of the judgment, even the one defendant who was found to be only 1% liable. However, any defendant who paid more than his proportionate share of liability would have a claim against the other defendant for failing to pay his proportionate share.

The prior scheme of “joint and several liability” was more of an assurance for plaintiffs by helping guarantee payment of the judgment. However, it was viewed as unfair to the wrongdoer who had only a small portion of responsibility for the injury but could be held responsible to pay 100% of the damages owed to the injured party.

When Pennsylvania enacted the Fair Share Act it joined about 40 other states that have passed various types of reform so that wrongdoers are only liable in proportion to their degree of fault. Now under the Fair Share Act, defendants found to be less than 60% liable only have to pay their “fair share” of the damages. In other words, if 10% of an injury or loss is found to be the responsibility of a single defendant, that defendant pays 10% of the judgment.

The Fair Share Act contains the following exceptions to this amendment. Therefore, defendants in the following types of suits continue to be jointly and severally liable:

1. A suit including an intentional misrepresentation
2. A case of intentional tort
3. A suit concerning the release or threatened release of a hazardous substance under the Hazardous Sites Cleanup Act or
4. A civil action in which a defendant has violated section 497 of the Liquor Code

The enactment of the Fair Share Act is a significant change in Pennsylvania tort law. Governor Corbett called it just a first step in comprehensive legal reform for Pennsylvania.

Effective January 24, 2011, significant changes were made to the existing child custody laws in Pennsylvania. This is the result of a decade-long reform process.

The guiding standard in making custody decisions is still what is “in the best interests of the child”. A court determines what is “in the best interests of the child” by considering all relevant factors, including 16 factors spelled out in the new law. These factors include which party is more likely to encourage and permit frequent and continuing contact between the child and another party and the need for stability in the child’s education, family life and community life.

The new law also provides that custody decisions must be gender-neutral and cannot favor either the mother or the father based on gender. It also requires judges to give justification for their custody decisions, either orally on the record or in written form.

Child custody relocation petitions filed after January 24, 2011 are also affected by this new law. A party intending to move or relocate must now provide the other party with notice of his or her intent to move. This notice must be provided by certified mail, return receipt, to every person who has custody rights to the child.

With a limited exception, the notice must be provided at least 60 days before the move. The notice must include detailed information about the new residence, including new address, phone number, name of school district, reason for move, and a counter-affidavit that includes a warning to the non-relocating party that if he/she does not file an objection to the move within 30 days of receipt of the notice, the non-relocating party loses his/her right to object to the move.

If the non-relocating party objects, a hearing is held to determine if the relocation is in the best interests of the child. The burden is on the relocating party to show that relocation is in the best interests of the child. The court may also consider:
-The nature, quality, extent of involvement and duration of the child’s relationships with each parent, siblings, and other significant people
-The age, development, needs of the child and the impact relocation will have on the child’s physical, educational and emotional development
-The feasibility of maintaining the relationship between the child and the non-relocating parent
-The child’s preference
-Whether the move will enhance the quality of life for the relocating parent and the child

Relocation cases are generally hotly contested by the non-relocating parent. This new law provides a new framework and guidance for parents involved in such relocation cases.

Divorce, custody, property settlement and other family law matters often involve emotional and challenging decisions. Michael J. Supinka, Esq. has years of experience representing clients in these matters and can provide the advice you need. Call Supinka & Supinka, PC for more information and assistance.

Whether you are deciding to buy a new home or trying to sell your existing home, you are faced with many decisions and questions. It is an exciting and emotional time and you are probably focusing on the price. However, it is particularly important to carefully prepare and review the Real Estate Purchase Contract (REPC). It may be best to hire a real estate lawyer in this process prior to signing the REPC.

The Real Estate Purchase Contract (REPC) may also be called the Agreement of Sale for Real Estate. It is often a standard form used by the Pennsylvania Association of Realtors which may be suggested by your real estate agent. Reading through the REPC can seem challenging, but a careful review of the REPC will save you time and frustration later on in the process of buying or selling your home.

During negotiations, a buyer usually submits an offer to the seller by signing the REPC and giving it to the seller to consider. The seller can either accept the REPC by signing it without changes or can make a counteroffer by changing the terms of the REPC and giving it back to the buyer to consider. This process of negotiation may go back and forth many times before both buyer and seller have agreed to the same terms. Each time, a revised REPC may be prepared for the other party to consider.

The purchase price is probably the focus of most buyers and sellers. However there are many other contingencies and terms in a REPC that you should be careful to include or think about. One common contingency that buyers may want to include is to make the offer contingent on the sale of the buyer’s current home. If the buyer’s current property sells, then the buyer must buy the home. But if it does not sell, then the buyer can terminate the REPC and often is entitled to a return of the buyer’s deposit. From the seller’s perspective, such a contingency is not to the seller’s advantage and at a minimum should include a time limit in which the buyer’s current home must be sold.

Another contingency to watch for is a financing contingency. Even a well-priced offer is less appealing if it is contingent on the buyer obtaining financing, permits the buyer excessive time to obtain such financing, includes a small deposit, or asks that the seller pay the closing costs.

Whether buyer or seller, other things to consider, include:
-Closing date-can you move in or out by that date?
-Specific Items included or excluded from the sale? It is generally accepted that attached fixtures/appliances are included with the sale. However, in the REPC you can specifically include or exclude items
- An inspection clause-permitting the buyer to conduct radon, sewer, and a general home inspection within a certain period of time

The Real Estate Purchase Contract is an important and complex legal document. It may pay to have it carefully prepared and reviewed prior to signing. Supinka & Supinka, PC has experience in assisting both buyers and sellers with preparing and negotiating such real estate contracts and is ready to help you through this process.

Do you have any of the following?
-Will
-Individual Retirement Accounts (IRAs)
-Life Insurance Policies
-Retirement Plans through your employment (401k)

It is important that you periodically review your Will and Beneficiary Designations on other assets such as IRAs, Life Insurance Policies, and 401k plans to make sure these documents do not need to be changed due to changes in your life circumstances or changes in the laws.

Wills
The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (2010 Tax Act) greatly reduces exposure to the federal estate tax for most individuals and families. For 2011 and 2012, the federal estate tax exemption is increased to $5 million and also raises the federal gift tax exemption to $5 million. Another significant change is that the new law includes an estate tax exemption between spouses. Any of the $5 million exemption amount not used by the first spouse to die can be used by the surviving spouse’s estate in addition to their own $5 million exemption.

Even with these higher exemptions, the new law does not remove the need for current estate planning. Many wills are drafted with formulas to comply with whatever estate tax exemptions are in place at the time of one’s death. These formula provisions can produce significantly different results if the exemption is $5 million, $3.5 million or $1 million.

The substantial changes to the gift tax also permit significant planning opportunities to transfer your wealth to your children or grandchildren while you are still alive. You can now transfer gift tax-free during your lifetime the same amount that you can transfer estate tax-free at your death.

Beginning in 2013, the estate and gift tax exemptions are scheduled to go back to the $1 million per taxpayer amount and a 55% maximum estate tax amount. Although we do not know what will happen with the estate laws two years from now, the current laws offer a variety of estate planning opportunities. At a minimum, you should review your will and other estate documents and be comfortable that they are drafted to meet your current circumstances.

Beneficiary Designations
Not all of your assets pass under your will. IRAs, Life Insurance Policies, and Retirement Plans allow the owner to designate the beneficiary through a beneficiary designation form. Some investment accounts and savings accounts also have beneficiary designations if they are transfer-on-death or payable-on-death accounts. These assets will go to the beneficiary you name and do not pass under your will.

Whenever there is a significant change in the law or a major event in your life – divorce, marriage, birth, adoption-you should review your designated beneficiary forms to make sure that the people you have named are still the ones you would like to inherit those assets.

Supinka & Supinka, PC would be happy to assist you with your estate plan. We can review your existing estate documents, assist you in developing a gifting plan, and discuss wealth transfer techniques. Feel free to contact us with any questions.