Major Changes Impacting Military Divorces

In a divorce in Pennsylvania, the marital assets are subject to a process of equitable distribution among the spouses.  If a spouse is a current or former member of the military, he/she may be entitled to a future pension, with a monthly benefit calculated based upon years of service and rank at the time of retirement.  While many pensions do not pay benefits until retirement, the value of the pension must be addressed in advance at the time of the divorce.  A Qualified Domestic Relations Order (“QDRO”) is then entered, which directs that a retirement plan pay a portion of future benefits to the non-military spouse.

The National Defense Authorization Act (“NDAA”), PL 114-328, applies to divorces occurring after December 23, 2016 and has a significant impact on how military pensions are valued.  The NDAA will treat the military member as if he/she had retired on the date the divorce is finalized, and calculates a hypothetical monthly benefit based on that fixed point in time.  That hypothetical benefit will be the only portion of the pension to which the non-military spouse has a claim.  Even through the military member might continue serving after the divorce, resulting in increases to the pension, that additional time will not be considered when dividing the pension.

With passage of the NDAA, the military spouse will receive a greater portion of his/her pension.

For more information and a consultation, contact our Law Firm, Supinka & Supinka, PC.

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Important Issues in Workers’ Compensation Cases

The Pennsylvania Commonwealth Court recently decided the case of Torijano v. WCAB, in which the workers’ compensation benefits of an injured employee were suspended.

The employee injured his back during the course of his employment for a plumber and filed a claim for benefits.  He was placed on medical restrictions, but could do some light-duty assignments, which the employer made available.  The employee ultimately did not perform the light-duty work and was reprimanded by the employer.  The employee never told the employer that he could not perform the light-duty work and instead stopped going to work.  The employer filed a petition to suspend his benefits.

To suspend a claimant’s benefits, an employer must prove either that (1) work was available within the claimant’s medical restrictions, and that the employee refused the work, or (2) the claimant’s loss of earnings arises from a cause other than the work-related injury.  Relying upon the second option above, the court held that the employee was not entitled to benefits because his loss of earnings was caused entirely by his voluntary resignation.  Because the employer offered him a light-duty assignment, the claimant was not entitled to benefits where he refused to perform work that was within his medical restrictions.

For more information and a consultation, contact our Law Firm, Supinka & Supinka, PC.

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Pennsylvania’s “Follow the Spouse” Rule for Unemployment Benefits

In the recent September 7, 2017 case of Rodriguez v. U.C.B.R., an office manager at a pain clinic resigned from her job to relocate to Florida with her spouse.  Her spouse had been unable to find stable work in Pennsylvania.  The former office manager applied for unemployment benefits.  After her claim was denied, she filed an appeal with the Pennsylvania Commonwealth Court, which denied her benefits.

If an employee voluntarily leaves employment, the general rule is that the employee is not entitled to unemployment compensation.  However, an employee can receive unemployment benefits if the employee demonstrates that the relocation is due to a “necessitous and compelling” reason.  Within this framework, the “follow the spouse” rule permits an employee to receive benefits if two things are proven: (1) the relocation creates insurmountable commuting problems or an economic hardship, and (2) circumstances beyond the ability of the claimant’s spouse created the necessity to relocate, the relocation was reasonable and done in good faith, and that the relocation was not the result of the spouse’s personal preferences.

In this case, the first requirement was satisfied because of the lengthy commute.  But the Commonwealth Court held that the office manager did not prove the second requirement.  Prior to relocating to Florida, the husband had been able to maintain some level of employment in Pennsylvania, although not a permanent job.  The husband chose to relocate without attempting to find other jobs in Pennsylvania and he did not receive any employment offers in Florida.  The Court found the move to be the husband’s personal preference.  The Court was also troubled by the office manager’s decision to leave her Pennsylvania job, where she was the only spouse with stable employment.  Accordingly, she was not entitled to unemployment benefits.

For more information and a consultation, contact our Law Firm, Supinka & Supinka, PC.

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Store Customer Injured in Fight

The Pennsylvania Superior Court recently addressed the issue of a store’s legal duty to keep its customers safe.

In Reason v. Kathryn’s Korner Thrift Shop, a customer sued the store after he was attacked by another customer in the store who had a history of mental illness.  The court held that stores open to the public have a duty to take reasonable precautions against the harmful conduct of other customers.  A business which invites people onto its property “may reasonably expect that all might not behave”, and bears responsibility for injuries that result from failing to take reasonable precautions.

However, in this case there was no evidence to demonstrate that the store had reason to know of the attacker’s history of mental illness.  The plaintiff was unable to prove that there were any prior incidents in the store or that the store personnel had any reason to suspect the attacker posed a risk in this particular case.  Therefore, the plaintiff was not entitled to recover damages from the store.

This case underscores the importance of being diligent in the discovery phase of a case to fully determine the scope of liability.

Our Law Firm is experienced in handling all types of injury claims.  For more information and a consultation, contact our Law Firm, Supinka & Supinka, PC.

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PA Supreme Court Rules on PA Workers’ Compensation Law

When a Pennsylvania employee is injured on the job, the employee is entitled to workers’ compensation benefits.  If the accident results in a “total disability” (the employee is completely unable to work), he receives benefits equal to two-thirds (2/3) of his pre-injury average weekly wage.  If the accident results in only a “partial disability” (employee can perform some duties, but with a loss in earnings), then the employee receives benefits equal to two-thirds (2/3) of the difference between his pre- and post-injury wages.  The difference between a “total” and “partial” disability is important, for “partial” disability benefits are capped at 500 weeks, after which the benefits are terminated.  Whereas “total” disability benefits can continue forever.

Section 306(a.2) of the Pennsylvania Workers’ Compensation Act provides that, after an employee receives total disability benefits for 104 weeks and reaches maximum medical improvement, the employer may request an Impairment Rating Evaluation (“IRE”), which requires a doctor to examine the employee and review the “most recent edition” of the American Medical Association (“AMA”) Guidelines.  If, under those AMA Guidelines, the injury caused less than 50% whole body impairment, then the employee’s disability status may be changed from “total” to “partial” disability benefits.  Very few claimants meet the 50% impairment level and therefore the IRE provision was a useful tool for employers to cut benefits.

In the recent Pennsylvania Supreme Court case of Protz v. Workers’ Compensation Appeal Board, which arises from the Derry Area School District, the Court struck down the IRE provisions of the Act finding that it was unconstitutional for the legislature to rely upon the AMA Guidelines as the criteria for determining an employee’s entitlement to benefits.  The Court concluded that the legislature had improperly made a “broad and unbridled” delegation of its lawmaking powers to the AMA.  As a result of this Court case, the IRE provisions of the Act are not enforceable and an employer is no longer able to rely upon the IRE process to change an employee’s status from “total” to “partial” disability.

For more information and a consultation regarding PA Workers’ Compensation Laws, contact our Law Firm, Supinka & Supinka, PC. 

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Retroactive Application of Sex Offender Registration Ruled Unconstitutional

On July 19, 2017 in the case of Commonwealth v. Muniz, the Pennsylvania Supreme Court held that the retroactive application of Pennsylvania’s Sex Offender Registration and Notification Act (SORNA) is unconstitutional under both the Federal and Pennsylvania Constitutions.  The Court held that the registration requirement is a punishment, and therefore cannot be applied retroactively.

SORNA was originally enacted in 2012 and requires sex offenders who have been convicted of certain offenses to register with the Pennsylvania State Police.  SORNA assigns sex offenders to one of three tiers based on the crime for which they were convicted. Tier I (15 years registration), Tier II (25 years of registration), and Tier III offenses (lifetime registration).

In this case, the Pennsylvania Supreme Court ruled that the registration requirements in SORNA could not be applied to individuals who were convicted and sentenced prior to SORNA becoming law in 2012.

 

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Wife Granted Indefinite Alimony

In the recent case of Leicht v. Leicht, the Pennsylvania Superior Court upheld an award of indefinite alimony to the wife, with no set end date.

The couple married in 1988 and divorced in 2016.  The husband worked in manufacturing jobs.  The wife was employed as a licensed practical nurse, but developed mental health issues in 2009 that rendered her unable to work, resulting in the receipt of disability benefits.  The trial court ordered the husband to pay $585 to the wife each month, indefinitely.

The husband appealed, arguing that the trial court should not have directed indefinite alimony payments, particularly where the wife had become eligible for disability benefits.  The Superior Court disagreed and upheld the award, noting that the alimony provisions of the Pennsylvania Code are designed to ensure that the reasonable needs of a dependent spouse are met, and that government benefits are designed to supplement – rather than replace – other resources to which a spouse is entitled.  Even though the alimony award had no fixed ending date, the husband could seek a modification or termination at a later time if there occurred g a substantial and continuing change in circumstances.

In this case, advanced planning or a prenuptial agreement may have produced a different outcome.

For more information and a consultation, contact our Law Firm, Supinka & Supinka, PC.

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Rear-End Car Collisions

Hundreds of car accidents happen each year in which one driver fails to stop and rear-ends the car in front of him.  Pennsylvania follows the “assured clear distance rule”, which has been codified as part of the Pennsylvania Motor Vehicle Code.

This rule requires that a driver has to be capable of stopping his vehicle at all time – within the clear distance in front of him.  Regardless of the speed limit, a driver has to drive slow enough so he can safely stop within the visible space in front of him.  This includes the need to account for many factors including weather, lighting or other conditions affecting visibility, such as the crest of a hill.  A driver is also required to anticipate that the vehicle in front may slow down or stop suddenly.  It is not a defense that the first vehicle stopped too quickly.  Where a rear-end collision occurs, there is a legal inference that the second driver failed to maintain the assured clear distance.

If you are injured in a rear-end collision, you may suffer injuries and damages for which the law permits a financial recovery.  These can include wage loss, medical bills, pain and suffering, and also damages for your spouse (loss of consortium).

For more information and a consultation, contact our Law Firm      Supinka & Supinka PC.

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Additional Identification Required at Pennsylvania Airports

The REAL ID Act, passed by the U.S. Congress in 2005, requires states to change their requirements for issuing driver licenses to meet minimum security standards.  Beginning January 22, 2018, air travelers with identification that does not meet the REAL ID Act requirements and whose state does not have an extension will need to show an alternative form of identification.   Examples of acceptable forms of identification include U.S. military or dependent ID, DHS trusted traveler cards, airline or airport-issued ID, or passport book or passport card.

On May 26, 2017, Governor Wolf signed into law the Pennsylvania REAL ID Compliance Act which will allow Pennsylvania to issue REAL ID-compliant driver licenses, which can be used to access airports and federal facilities.

Pennsylvania is under a REAL ID enforcement extension until October 10, 2017, which means that Pennsylvania residents will not have to show alternative identification until then.  PennDOT says that it will continue to request extensions from the U.S. Department of Homeland Security until REAL ID products are available for Pennsylvania residents.

Under the new Pennsylvania Act, you are not required to get the new REAL ID driver license, but if you do obtain one, you will be able to use the new REAL ID driver license and will not also need to show a passport or additional identification.

PennDOT estimates REAL ID driver licenses will be available to Pennsylvania residents beginning in 2019. This will allow time for Pennsylvania residents to obtain one before the final Department of Homeland Security deadline of October 1, 2020.

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Insurance Coverage Granted for Contamination

In a recent case, the Pennsylvania Department of Environmental Protection (“DEP”) filed a lawsuit against Johnson Matthey, a manufacturer of metal alloys, contending its operations contaminated soil and groundwater.  In addition to denying those allegations, Johnson Matthey submitted the claim under its own insurance policy.

The insurance company sought to avoid covering the claim, arguing that it was only required to cover damages that “occurred” during the 12-month period in which the policy was in effect and that this contamination had “occurred” many years before the policy was issued.

The Pennsylvania Commonwealth Court found that Johnson Matthey was entitled to coverage.  The Court held that the policy applies to any “property damage which occurs during the policy period”.  Because “property damage” includes contamination, and contamination was discovered during the policy period, the Court found that the policy was triggered.

In reaching this conclusion, the Court analogized to cases in the asbestos context, in which there is a typically a long delay between one’s exposure to asbestos and the manifestation of symptoms.  In asbestos cases, all “occurrence” insurance policies in effect between the exposure and discovery of symptoms are triggered.

If you need help with an insurance claim, call our attorneys at 724-349-6768 for individual advice.

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