Initiative: The Official Newsletter of MacElree Harvey, Ltd. by MacElree Harvey, Ltd.

SUMMER 2015

INITIATIVE THE OFFICIAL NEWSLETTER OF MACELREE HARVEY, LTD. ATTORNEYS AT LAW

For every client. In every matter. Every day.

INITIATIVE

LAND USE For every client. In every matter. Every day.

IN THIS ISSUE 3

Real Estate Development Burgeoning; Redevelopment Emerging at the Core

Real Estate Development Burgeoning

Brian L Nagle, Esquire

Zero Tolerance for Zero Tolerance

Especially in and Around Small Towns

William T. Wilson, Esquire

he 2008 real estate bubble burst is suddenly seven years in our rear view mirror and much real estate activity lies ahead. Transfers have increased; so, too, has development and redevelopment. Civil engineers are struggling to get all their new projects completed and will be hiring soon. Many believe that the real estate market runs in seven year cycles, and there is some data to support that. Yet, there are some noticeable differences this time around.

New Places | Fresh Faces Interview with Hillary J. Moonay, Esq., MacElree Harvey’s new partner

Building the Blended Family Through Stepparent Adoption Julie M. Potts, Esquire

Medicare Made Easy

STAY SOCIAL Stay up to date with everything happening all month long at MacElree Harvey, Ltd. by connecting with our social media pages.

Kristen M. Matthews, Esquire

We’re proud to support our community, and to highlight our involvement with organizations who share the same vision and mission as us.

Brian L. Nagle has considerable experience in representing developers, entrepreneurs, institutions and individuals in land use, zoning, tax assessment appeals and related litigation. To learn more about Brian’s practice email him at bnagle@macelree.com, or call him at 610-840-0224.

Award News

The contents of this newsletter should not be construed as legal advice on any specific fact or circumstance. Its content was prepared by MacElree Harvey, Ltd. It was designed for general information purposes only. Your receipt of such information does not create an attorney-client relationship with MacElree Harvey, Ltd. or any of its lawyers. You should not act or rely on any of the information contained herein without seeking professional legal advice. Prior results referred to in these materials do not guarantee or suggest a similar result in other matters. Initiative is published for friends, clients and employees of MacElree Harvey, Ltd. Mailing and email address changes, questions, comments or requests for printed copies of the Firm’s newsletter should be directed to Marketing, MacElree Harvey, Ltd. at 610-840-0222 or 17 West Miner Street, West Chester, PA 19382. Contact us by e-mail: jcooper@macelree.com. Our monthly newsletter can also be obtained from our website, www.macelree.com

Businesses and home buyers are gravitating to more urbanized locales such as cities, boroughs, and other downtown locations. Developers are following suit. Many dilapidated or underutilized downtown properties are undergoing redevelopment in favor of high end townhomes and apartments, retail businesses and, believe it or not, even some Class A office projects. Mixed-use projects are popular in the downtown locations as well, mixing retail and/or office with new residential units. As the urban bustle increases, hotels are being added in these locations as well. This is especially true in smaller towns that never before hosted hotels. This need in smaller towns, particularly in boroughs, has been driven in part by the proliferation of new forms entertainment and other attractions. West Chester Borough, for example, has seen the arrival of the Uptown! Entertainment Alliance, Inc., a non-profit, community theatre for the performing arts. Roving about town with performances for the last few years, the organization is now seeking approval from the Borough of West Chester to redevelop the historic National Guard Armory as its permanent home. The addition of theatres like Uptown! and other attractions to already existing retail, restaurants, and galleries in small towns like West Chester is making them viable alternatives to Philadelphia. It’s attracting larger business, too. Victory Brewing Company recently opened a new location in Kennett Square, near Magnolia Place, a new townhome community. There are many other examples, and certainly, more to follow as small towns continue to flourish. F

On May 5, 2015, the Pennsylvania Supreme Court heard oral argument in Gilbert v. Synagro Central, a case hinging on whether the application of biosolids to farm fields is a “normal agricultural operation” under 3 Pa.C.S. § 951 et. seq., commonly known as Pennsylvania’s Right to Farm Act. The case marks the first time that the Commonwealth’s highest appellate court has interpreted the Right to Farm Act, the legislative purpose of which is to limit the circumstances under which farms may be the subject matter of nuisance suits and restrictive local ordinances. The Supreme Court’s decision in Gilbert could have far-reaching consequences for farmers and developers alike, as the application of bio-technology in agriculture collides with the encroachment of residential uses into areas previously used exclusively for agriculture.

EMPLOYMENT LAW

again, and she slapped him across the face. She then went and complained to Mr. Edwards again—and here is where we start to get to my main point. Mr. Edwards responded to Ms. Speed’s second complaint by telling her that, if he wrote Mr. Garway up, he would also have to write her up for the slap. I can think of several reasons why he might have said that, but the most flattering of them is that he felt he had to follow a policy of “zero tolerance” for workplace violence, so let’s go with that one. Upper management learned of the incident, decided to fire Mr. Garway because the sexual harassment really did happen and – get this – also decided to fire Ms. Speed. She sued, because now she wants something more than just to stop the harassment—and she just might get it.

ZERO TOLERANCE for zero tolerance

read a decision in a sexual harassment case written by Judge Gerald McHugh of the Eastern District of Pennsylvania the other day. Others have written about the case—Shameka Speed v WES Health System— and how it illustrates that not all “misconduct” is equal, and how circumstances may convert misconduct into perfectly alright behavior. But the case made me think of something else. First, let’s summarize what happened to Ms. Speed, according to her complaint; and, since Judge McHugh’s ruling was only denying the employer’s motion to dismiss at the very earliest stages of the lawsuit, let’s also remember that WES Health System may have a different version as to a lot of what follows.

While working for WES Health System, Ms. Speed was supervised by Cornelius Edwards, who also supervised a gentleman named Macon Garway. Mr. Garway is 6’3” tall and weighs 250 lbs, whereas Ms. Speed is a lot smaller. Mr. Garway engaged in a whole lot of verbal sexual harassment of Ms. Speed. (If you insist on knowing all the graphic details, look up the case, ‘cause my sensibilities are way too delicate to repeat them here.) After it had gone on for months, Ms. Speed complained to Mr. Edwards, who told her that Mr. Garway had been reprimanded, but really did nothing much about the problem, and did not tell higher management. The first lesson for the day, employers, is that many victims of sexual harassment

Why did WES Health System fire Ms. Speed? Maybe they just thought it was best to get rid of whoever was involved in a workplace altercation so they wouldn’t have to make a decision whether the slap was a reasonable action. If so, we should all hope Ms. Speed accomplishes her goals in the litigation.

really just want the harassment to stop. If it doesn’t, they may want a lot of your money later on, but you might be able to head that off at the pass if you take care of business at the beginning. It seems that other women had also complained to management about Mr. Galway’s ways of building rapport with his colleagues, so WES Health System may have known enough to take action by the time Ms. Speed complained. So, Mr. Garway continued his previous behavior and started touching and rubbing against Ms. Speed. During the eleventh month of the harassment, in response to one of Mr. Garway’s affectionate overtures, Ms. Speed told him if he kept it up, she would defend herself. He reached out to touch her

Illustration by RICK NEASE/DFP

But I think it’s more likely that WES Health System really thought it was neutrally enforcing a zero tolerance policy. Maybe it thought that this was the way to protect itself from possible litigation. Live and learn. Judge McHugh rather convincingly pointed out that, under the right circumstances, action in selfdefense is protected. After all, Ms. Speed didn’t slide a sharp object between Mr. Garway’s ribs or bang him on the head with something blunt and metallic, but just smacked him with her open hand. Management did not have to make her the employee of the month for it, but a jury may just end up deciding that it had no good reason to fire her either. So called zero tolerance policies might

cause mischief in other ways as well. Let’s look at a common one—the zero tolerance that appears in a lot of sexual harassment policies. The victim of sexual harassment doesn’t necessarily want her co-worker fired; she just wants the shenanigans to stop. Some victims may not report problems at the beginning, because they fear management’s overreaction, or the resentment of other co-workers, and then the problems increases until it is too big to ignore. If upper management believes it can’t keep someone around if they have violated that policy, they reinforce that concern. And even if they do not, upper management aren’t the only people who tend to read an all-or-nothing kind of draconian consequence into language like “zero” tolerance. Maybe Mr. Edwards would have reported Ms. Speed’s first complaint, or done something more to fix the problem, if he had believed he could do so without the ultimate penalty coming down on Mr. Garway. Maybe then he denied the earlier complaint, when he reported the last one, because he was afraid he would be accused of dereliction, and led the decision makers to think Ms. Speed’s actions were unreasonable because she had not asked management for help before her self-defense.

William T. Wilson brings an in-depth knowledge of civil rights and employment law to the matters he handles for individuals and businesses. Bill served in the United States Army for 33 years (1976-2009), 7 years of service was on active duty. He has extensive experience in Federal and State Court civil litigation, including insurance, privacy law and commercial transactions. To contact Bill send him an email at wwilson@macelree, or call him by phone at 610-840-0206.

Writing policies that imply inflexible outcomes to the workers and managers who have to apply them in practice don’t solve problems. They will be subverted by workers who misunderstand their purpose and, as this little case study tries to illustrate, subvert the goal of preventing sexual harassment and litigation. Just ask WES Health System if showing no tolerance for workplace violence prevented them from being sued for it. F

THE FIRST LESSON FOR THE DAY, EMPLOYERS, IS THAT MANY VICTIMS OF SEXUAL HARASSMENT REALLY JUST WANT THE HARASSMENT TO STOP.

New Places

Fresh Faces W

ith a practice centered exclusively out of the new Doylestown office, Hillary, a nationally recognized litigator, focuses her practice singularly in the area of Family Law, and has extensive experience handling complex divorce matters, including the intricate financial issues related to complex business valuations and forensic accounting matters. Our Doylestown office is located at 120 South Main Street. If you’d like to learn more about Hillary and her practice, email her at hmoonay@macelree.com or call her at 215309-4020.

WHY DOYLESTOWN? First of all, I love Bucks County! It’s got the perfect mix of welcoming atmosphere and great people. I used to live in Philadelphia, but when I wanted to move closer to home, Doylestown was the obvious choice. It’s the best of both worlds—high city spirit and slow county lifestyle. FAMILY LAW IS VERY BROAD. WHAT’S YOUR AREA OF EXPERTISE? I’ve been very fortunate to work on some extremely complex and complicated financial aspects of cases that have bled into other areas of the law—such as business succession, mergers, estate and trust dissolutions—and because of it I have a depth of legal knowledge that transcends normal boundaries of practice. More importantly, I enjoy working on cases where there just isn’t an easy answer or obvious good outcome on the onset—and making sure there is one by the time we’re settled. WHAT’S THE THING YOU WISH CLIENTS KNEW BEFORE COMING TO YOU FOR HELP? The law does not care about your affair—seriously. A lot of my clients understandably are very hurt and confused when they learn that in the court system, affairs really don’t factor in to asset division or custody battles. WHAT’S THE MOST REWARDING PART OF YOUR PRACTICE? It’s always hard when clients come to me and they’re struggling—really seriously struggling. Going through a divorce truly does affect every single part of your life, and sometimes even getting out of bed—let alone going through the motions of being a good employee, parent and friend—is debilitating. With all of that said, the most rewarding part of my practice is watching people come out of that struggle. They transform into someone stronger, happier and more confident in the future. BEST PIECE OF ADVICE YOU’VE EVER RECEIVED? Always make contact. I always return any missed messages at the end of the day—even if it’s to say I can’t talk until tomorrow. WHAT MAKES YOU DIFFERENT THAN OTHER FAMILY LAW ATTORNEYS? I’m lucky in that my undergraduate is in psychology. Family Law matters are emotional, and it’s important for me—and more important for my clients— that I have the ability to understand those delicate aspects and formulate a legal plan based on not only the what the head wants, but the heart as well. F

Meet our newest partner Hillary J. Moonay in our new home... Doylestown, Pennsylvania. 7

FAMILY LAW

FAMILY LAW revoke their consent in writing. Once the thirty days has passed, the consent becomes irrevocable unless the birth parent can show fraud or duress. In the case of involuntary termination, under Pennsylvania law, the courts provide for numerous grounds for terminating rights involuntarily. The grounds could be, inter alia, the parent has refused or failed to perform parental duties for a period of six months or in the case of a newborn the parent knows or has reason to know of the child’s birth and the parent has failed for a period of four months to maintain substantial and continuing contact with the child and has failed to provide substantial financial support, among other grounds for termination. These are just two of the nine involuntary termination grounds identified in the Adoption Act.

Building the Blended Family through Stepparent Adoption

either biology nor a piece of paper makes a parent. The act of loving and supporting a child unconditionally makes you a parent to a child whether natural born, adopted or as a stepparent. But, in the eyes of the law, as a stepparent, you are not the legal parent of the child. To become the legal parent of a child or children of your spouse, a stepparent must adopt the child. The legal pathway to a stepparent adoption is slightly different than that of a non-relative adoption (often a newborn adoption where the adopting parents are not related to the child). In a nonrelative adoption, the parental rights of both birth mother and birth father are terminated and an adoptive parent or parents petition to adopt the child(ren). Further, there are more legal filings required in a non-relative adoption such as a Report of Intention to Adopt (which informs the court that an adoption is in progress) and a Report of Intermediary (where the agency, for example, files their report in reference to the pending adoption). Further, in a stepparent adoption, the courts generally do not require a home study since the courts treat this as a “relative adoption”. In a stepparent adoption, only one birth parent’s rights are terminated. Generally, in order to terminate parental rights, either the parent whose rights are being terminated must consent to the termination of parental rights or the rights must be terminated on an involuntary basis. In Pennsylvania, the birth parent consenting to the termination of parental rights has thirty days to

ON THE MOVE Earlier this month the Delaware Senate unanimously confirmed the nomination of MacElree Harvey, Ltd. attorney Felice Kerr to serve as a Judge on the Delaware Family Court, replacing Judge Michael Newell, who was sworn in as Chief Judge of the Family Court on June 10, 2015. The Governor issued this statement following the confirmation: “Felice Kerr has spent her legal career focused on supporting Delaware families – experience that will serve her well as she assumes the role of a Family Court Judge. I thank the members of the Senate for showing their support.”

INVESTING IN DELAWARE’S FUTURE IS A FAMILY AFFAIR

Judge Kerr was sworn in on July 15, 2015. 8

Either through consent or involuntary termination, there is a hearing held whereby the petitioning party must show that the consents should be confirmed and the rights of the consenting parent should be terminated,+ or in the case of an involuntary termination, that the grounds have been met and that the rights of that parent should be terminated. Subsequent to the termination of parental rights, the courts move to the adoption finalization hearing. At the stepparent adoption hearing, the adoptive parent, their spouse and the child or children to be adopted are present and through counsel, the court will hear testimony to ensure that all requirements of the Adoption Act are met, that the parties understand the significance of the adoption and that the adoption will serve the best interest As an advocate for family law clients, Julie M. Potts’ practice focuses on divorce, equitable distribution, alimony, spousal and child support, custody and parenting time, grandparent rights, protection from abuse matters, negotiation, enforcement and preparation of property settlement agreement, prenuptial agreements, postnuptial agreements, separation agreements and cohabitation agreements. Julie also has significant experience in adoption including stepparent, domestic and international adoptions. To learn more about Julie’s practice email her at jpotts@ macelree.com, or call her at 610-840-0292.

Honor it has been an

of the child(ren). Further, the law requires the consent to the adoption of a child aged twelve and older. Even in the case of a younger child, the court will often ask children of competent age their feelings about the adoption. Among the most significant implications of all adoptions is that once the child is adopted by an adoptive parent, that child will be treated under the law as if that child were his/her natural born child. This means that if the adoptive parent were to die without a will, known as intestate, the child will inherit from that parent as if he or she were their natural born child whereas as a stepchild, if a stepparent dies intestate, their stepchild would not inherit from them. Another implication of adoption is that the adopting parent has the duty to provide for the child as if the child were natural born. Among other implications, this means in the event of a separation or divorce, the adopting parent will have a duty of child support as well as a right to physical and legal custody. Adoption is a wonderful thing. In the case of stepparent adoption, it can truly complete a family and complete the bond between a parent and his or her stepchild. The decision to adopt may be an easy one, but all parties must consider the implications that are often uncomfortable to address. It is never easy to plan for one’s death or the possibility of separation or divorce, but it must be considered to ensure that the parties know their obligations and ensure that the decision to adopt is in the best interest of the child. F

ELDER LAW

Medicare Made Easy

If you’ve seen them in action, it’s no surprise they’re on the list...

s I gained more experience with the elder law field, I’ve found that most people know the basics, that they become eligible for Medicare at the age of 65. What I have come to realize, however, is how intricate and arduous the process of enrolling in Medicare truly can be. It’s best to start at the beginning. Upon turning 65, there is a seven month window, called your enrollment period, in which you must apply for Medicare. Conveniently, the registration period begins three months before turning 65. The date of your birthday can make a large difference in terms of the start date of your Medicare coverage. If your birthday is on the first of the month and you enroll in the any of the 3 months before your birthday month, your coverage will begin the first day of the prior month. So, if your birthday is July 1st and you register in April, May, or June, your Medicare coverage will begin June 1st. If your birthday is not on the first, your coverage will begin the first day of your birthday month. There are different rules should you register in your birthday month or any of the three subsequent months. Remember that it is extremely important to register timely to avoid any potential penalties, especially because these penalties may last for as long as you have Medicare. Speaking of penalties, if you do not enroll timely in a Part B plan, a 10% penalty will be assessed against your monthly premium for every full year you fail to register. For failing to enroll in a drug plan, you will be assessed a 1% penalty for each full, uncovered month. Keep in mind that if you wish to also enroll in a COBRA plan, there are different rules governing whether you may have both COBRA and Medicare depending on which plan you enrolled in first.

Kristen R. Matthews works closely with individuals on a wide variety of estate and trust planning and estate and trust administration matters. She is also is an experienced elder law attorney and assists clients with matters including advance and crisis Medicaid planning, guardianships, special needs trusts, and Veterans Pension benefits. To learn more about Kristen’s practice email her at kmatthews@macelree.com, or call her at 610-840-0272.

Lastly, it will be important to assess your specific needs as to whether to enroll in a traditional Medicare plan, which is funded by the state, or a Medicare Advantage Program, which is offered by private companies. One of the biggest benefits to having a traditional Medicare plan is that you can see any doctor in the United States that accepts Medicare, rather than having to choose from a network of providers. On the other hand, a Medicare Advantage Plan may be best for you if you prefer to put a cap on your out of pocket spending, rather than paying a portion of the cost of all your health services in any given year. There are numerous considerations to keep in mind when embarking on your Medicare enrollment. These can include when to enroll and what type of plan, out of the many available, best fits your needs. Just remember, before enrolling in a Medicare plan, a comprehensive assessment of your health needs can make the process much more manageable. F

• • • • • • • • • • • • • •

Robert A. Burke William T. Wilson Harry J. DiDonato Lou N. Teti Lance J. Nelson Mary Ann Rossi * Duke Schneider Brian L. Nagle Timothy F. Rayne ** • Hillary J. Moonay William J. Gallagher Patrick J. Gallo, Jr. Jaime L. Jano J. Charles Gerbron, Jr.

11 SUPER LAWYER HONOREES 1 IN THE TOP 100 OF PENNSYLVANIA ** 1 IN THE TOP 100 OF PHILADELPHIA • 1 IN THE TOP 50 WOMEN OF PENNSYLVANIA * 3 RISING STAR HONOREES

MacElree Harvey, Ltd. Attorneys at Law 17 West Miner Street West Chester, PA 19382

Aimee C. Bowers, Esq. abowers@macelree.com 610-840-0289

SHE MEANS BUSINESS

MEET AIMEE C. BOWERS, THE NEWEST MEMBER OF OUR BUSINESS DEPARTMENT Working out of our Kennett Square and West Chester Offices, Aimee will assist clients with corporate business and real estate matters. A graduate of Penn State University (B.A. 2001) where she studied British Literature, she earned her law degree from Widener University School of Law (J.D. 2008), in Wilmington,

where she graduated Cum Laude. Aimee also served as a Law Clerk for both the Honorable Jan Jurden and the Honorable Fred Silverman, Delaware Superior Court, both of whom serve on the Complex Commercial Litigation Panel. She is currently a member of the Pennsylvania Bar Association, Chester County Bar Association, and the Lancaster Bar Association.