Peacock Keller, LLP in News

By Robert A. Vernon, Esq. 

The more things (try to) change, the more they stay the same. Earlier this year, the Department of Labor’s Wage and Hour Division revised its regulations regarding the Fair Labor Standards Act’s definition of “salary-exempt” employees under the FLSA’s executive, administrative, and professional (“EAP”) overtime exemption. This proposed Rule increased the minimum salary for employees exempt from federal overtime pay requirements under EAP criteria from $684 per week ($35,568 per year) to $844 per week ($43,888 per year) effective July 1st of this year, set a greater increase to $1,128 per week ($58,656) starting January 1, 2025, and established a framework for regular additional increases every three years starting July 2027. The Rule contained similar changes for employees exempt under the “highly compensated employee” (“HCE”) exemption, for which there is a less intense duties analysis, in exchange for a much higher salary. In recent months, employers have been scrambling to either re-classify employees as eligible for overtime or increase salaries to meet these new standards.

Now, it appears that all has been for naught. Late last week, a federal judge in the Eastern District of Texas, in the case Texas v. Department of Labor, struck down the Department of Labor’s increases to the minimum salary requirement, finding that the Department’s changes exceeded its statutory authority. The Court specifically looked at the exclusionary effect these salary increases would have on employees who would otherwise meet the duties requirements for an EAP exemption, but who were not being paid at the new salary levels. The Court found that the new Rule placed an unreasonable focus on salary (as opposed to the actual duties performed by the employee), and held that this was contrary to the intention of the FLSA.

Surprisingly, the Court set aside the entire new FLSA Rule, including the minimum salary increases to $844 per week that have already come into effect as of July 1st. The Department of Labor’s application of the Fair Labor Standards Act has included a minimum salary level for exempt employees from its inception over eighty years ago. That minimum salary has been periodically increased over the years to account for factors such as inflation and average wages nationwide. The last such increase in minimum salary (to $684 per week) occurred in 2019. The July 1, 2024 increase was explained by the DOL to essentially be an adjustment on these same lines. The Eastern District of Texas Court ruled, however, that even this increase was made with too short an interval from the last increase (generally, increases occurred every ten to fifteen years), and struck down this portion of the Rule as well.

What’s Next?

The Department of Labor has not yet made a decision on whether or not to appeal the Eastern District of Texas decision. Any appeal would be made to the Fifth Circuit Court of Appeals, which is generally considered one of, if not the most, conservative federal appeals courts. The Fifth Circuit, however, issued its own decision in late September of this year with regard to the 2019 salary increases, in the case Mayfield v. Department of Labor, finding that the Department of Labor had the authority to set salary minimums as a part of its exemption criteria. This could signal that the Fifth Circuit may overturn some or all of the District Court’s ruling.

There is some question as to whether the Department of Labor will appeal. With the new Presidential Administration taking office in January, the DOL’s focus may shift away from support of the salary increases. Even if an appeal was filed in the next few weeks, it could be withdrawn once the new Administration takes office.

Even if there were an appeal, there is no guarantee that the District Court’s ruling would be overturned, or that such a ruling would happen in the near future. The Appeals Court could, however, issue a stay of all or part of the District Court’s ruling while the appeal is pending, meaning that some or all of the salary increases would go back into effect while the appeal was pending. The labor and employment attorneys at Peacock Keller will closely monitor any developments and will be available to advise you on how to navigate these changes.

What this means for employers

The Texas District Court’s ruling fully set aside the Department of Labor’s Rule in its entirety, and has nationwide effect. This means that (for the time being) the increased salary numbers are no longer required for an employee to qualify for overtime-exempt status under the EAP exemption.

So, for now, the previous salary level, $684 per week ($35,568 per year) is again the minimum salary for an employee’s qualification for an exemption under the executive, administrative, or professional standards.

For employers who have already increased salaries or reclassified employees based on the July 1st salary level, or in anticipation of the January 1, 2025 increase, there may be questions on how to roll back their changes. Depending on the nature of this roll back, there may be potential liabilities and generally aggrieved employees. Employers should exercise caution with any changes to employee classification, and work closely with experienced labor and employment counsel to minimize risk.

Employers should remember that regardless of salary, employees are also required to satisfy certain duties criteria to meet EAP or highly compensated employee status. This element of FLSA overtime exemption continues to be the DOL’s primary focus in determining whether an employee should be exempt from overtime requirements, and those duties tests should continue to be an employer’s focus in classifying their employees.

The labor and employment attorneys at Peacock Keller are experienced in Fair Labor Standards Act matters and advising employers of all sizes on how to comply with federal and state wage regulations. We are happy to assist with any questions you may have regarding these rapidly changing regulations.

Can you please put a pop up on our website for our Thanksgiving hours?

Wednesday 11/27- 8:00am- 2:00pm

Thursday 11/28- Closed

Friday 11/29- Closed

By Robert A. Vernon, Esq. 

There was big news last week out of two federal rulemaking bodies that will have a substantial impact on how businesses operate.  

On Tuesday, April 23, 2024, the Federal Trade Commission voted to finalize a Rule prohibiting companies from entering into non-compete agreements with their employees and from enforcing existing agreements with most employees.  This Rule will go into effect 120 days after its final publication, likely in the coming months.

The same day, the Department of Labor’s Wage and Hour Division revised its rules regarding the Fair Labor Standards Act’s definition of “Salary-Exempt” employees, increasing the minimum salary for employees exempted from federal overtime pay requirements to $43,888 per year ($844 per week) effective July 1, 2024, and again to $58,656 per year ($1,128 per week) effective January 1, 2025.

FTC Prohibition of Non-Compete Agreements

The new Federal Trade Commission Final Rule bans employers from entering into any new non-compete agreements with all “workers,” which includes employees, independent contractors, interns, volunteers, and apprentices (among others).  The Rule further requires that existing non-competes with most workers are unenforceable after the Rule takes effect.  

Non-compete agreements are defined by the FTC to include not only explicit agreements prohibiting an employee from working for a competitor or operating their own business in competition with a prior employer after the conclusion of employment, but to also include agreements that financially penalize an employee for competing with their former employer, such as agreements requiring an employee to forfeit deferred compensation or bonuses or to pay a penalty.  The FTC has also stated that it will closely analyze other agreements, such as non-disclosure, confidentiality, trade-secret, and non-solicitation agreements to determine whether those agreements are so broad or encompassing that they have the same effect as a non-compete.  Employers should carefully review the terms of any of these agreements currently being used to ensure that they are narrow enough in scope to not fall under the prohibitions of the new Rule.

The FTC has carved out limited exceptions to the Rule:

• Existing non-compete agreements with senior executives of a company may continue to be enforced after the Rule takes effect.  The FTC defines a senior executive as an employee with “policy making authority” for the entire business whose total compensation is at least $151,464 per year, excluding fringe benefits.  A “policy making position” is extremely limited under the FTC’s definition to include a company’s president, CEO, or an equivalent position.  New non-compete agreements with senior executives will still be prohibited.  

• A non-compete agreement may be permissible where it is agreed upon in connection with the sale of a business, a worker’s ownership interest in a business, or all or substantially all of a business’s operating assets.  The FTC’s guidance cautions, however, that this exception only applies to the sale of a business in a bona fide arms-length transaction, and that arrangements such as stock buybacks and redemptions or sales between subsidiaries would not qualify for this exception.

The FTC Rule requires employers to provide written notice to each worker that had previously entered into a non-compete clause or agreement that the agreement is no longer enforceable, and that the employer will not attempt to enforce the non-compete agreement against the worker.  The FTC has provided model language, found here, that it considers appropriate notice.  

There is some good news for those employers who are already seeking to enforce a non-compete agreement against a former employee: the new Rule specifically states that actions to enforce an agreement that was violated prior to the Rule’s effective date are excluded from the non-enforcement language.  This means that if a former employee becomes employed by a competitor or otherwise violates an existing non-compete prior to the Rule’s effective date, the employer is permitted to take action to enforce the non-compete and seek damages for the employee’s violation of the agreement.

The FTC Final Rule will go into effect 120 days after its publication in the Federal Register.  The date of publication has not been determined at this time.  

We anticipate substantial litigation on the FTC’s authority to enact and enforce this Rule in the coming months.  Two groups, one led by the United States Chamber of Commerce, have already filed lawsuits seeking Court intervention to declare the Rule in violation of the FTC’s authority under the U.S. Constitution and other federal law and to prevent the FTC from enforcing the Rule.  The attorneys at Peacock Keller, LLP will continue to closely monitor any new developments in these regulations and stand ready to assist you in answering any concerns and developing effective and enforceable agreements and policies in line with these new regulations and other relevant laws.

FLSA Salary Basis Increase for Overtime Exempt Workers

The Fair Labor Standards Act permits employers to employ certain employees on a salary basis, not subject to overtime pay, provided that certain limited exceptions apply.  Most commonly, employees must satisfy certain duties requirements, commonly called the “white collar” overtime exemptions (executive, administrative, professional, computer) and satisfy a minimum salary requirement.  That requirement was last updated in 2020, when it was increased to $684 per week ($35,568 per year).

An employee can also qualify for exempt status as a highly compensated employee if he or she meets a less stringent version of the duties test and earns at least $107,432 per year.

On April 23, 2024, the Wage and Hour Division issued its own Final Rule increasing the minimum salary requirements for the overtime exemption.  Effective July 1, 2024, an exempt employee under the more stringent white-collar exemptions must receive a minimum salary of $844 per week ($42,888 per year).  The minimum salary requirement will again increase on January 1, 2025 to $1,128 per week ($58,656 per year).

An employee classified as exempt under the highly compensated employee classification will see similar increases, to $132,964 per week beginning on July 1, 2024, and to $151,164 per week beginning on January 1, 2025.

The Rule provides for additional increases every three years, beginning July 1, 2027, based on current earnings data.  The Department of Labor will publish any salary basis increase at least 150 days prior to that increase taking effect.

As with the FTC Rule, we are likely to see attempts to block these changes to the FLSA overtime-exempt requirements through the Courts.  The Department of Labor attempted to increase the salary basis requirements in 2016 coupled with automatic increase language similar to this new Rule but was blocked by the Courts.  Ultimately, the Department of Labor rescinded those increases in favor of the more modest salary basis requirements currently in effect.

At this point, employers should prepare for the salary basis increase to take effect in a few short months.  Employers should work with their labor and employment counsel to carefully evaluate the current salaries of their exempt employees.  If any exempt employee falls below the minimum salary requirements, the employer should consider whether it would be better to increase that employee’s salary or re-classify that position as non-exempt and subject to overtime laws.  Employers should act quickly in making this determination, to allow for time to adequately notify affected employees and provide appropriate training on timekeeping and overtime policies.

The attorneys at Peacock Keller are experienced in wage and hour matters and advising employers of all sizes on how to comply with federal and state wage regulations.  We are happy to assist with any questions you may have regarding these rapidly changing regulations.

By: John E. Egers, Jr., Esquire

On August 22, 2023, a 4-member majority of the Pennsylvania Supreme Court in a precedential opinion ruled in favor of Peacock Keller’s client, Donald Bindas, who challenged PennDOT’s claim to his land based upon a 1958 highway plan.  

The high court found that Pennsylvania’s Highway Law, which governed the taking of private land for highway purposes from 1947 until 1964, required that PennDOT and its predecessor, the Pennsylvania Department of Highways, ensure that their highway plans are recorded in a plan book and indexed in a locality index maintained in local recorder of deeds offices.  As the 1958 highway plan in question was not recorded in a plan book and indexed in accordance with the law in the Washington County Recorder of Deeds office, the Supreme Court found the plan invalid.  The high court further found that PennDOT and its predecessor are responsible for ensuring that their filings are correctly recorded and indexed in the recorder of deeds office.  

The Supreme Court’s ruling has the potential for significant impact to PennDOT and Department of Highway claims in Washington County and other counties where a plan book and locality index do not exist in the local recording office or highway plans are not contained within such books and indexes.  The timeframe from 1947 until 1964 saw much of the interstate system construction in Washington County and elsewhere. In addition, many state highways were also constructed based upon highway plans approved in this timeframe. The taking of property from landowners within the past six years based upon highway plans developed under the State Highway Law could have the potential for damage claims as a result of the Supreme Court’s ruling.    

John E. Egers, Jr. is Of Counsel with Peacock Keller, LLP’s Litigation Department in its Washington, Pennsylvania office.  John represents clients in Pennsylvania and Federal trial and appellate level courts.   

We are pleased to announce that Jason D. Witt has joined Peacock Keller as an Of Counsel Attorney in our Energy and Business Departments.

Prior to joining Peacock Keller, Jason worked at the largest privately-owned coal mining company in the United States.  

“We are extremely excited to have Jason join our Energy and Business Departments.  Peacock Keller has long been known for providing exceptional legal services in the energy sector and Jason’s unique experience and understanding of the energy industry will serve as an invaluable resource for our clients.  Additionally, adding a West Virginia licensed attorney allows us to also better serve our existing clients and expand our legal footprint,” said Jonathan Higie, Managing Partner of Peacock Keller.

Jason graduated from West Virginia University in 2001, with a Bachelor of Mining Engineering.  In 2004, he earned his Juris Doctor from West Virginia University, College of Law.

Please join us in welcoming Jason to the Peacock Keller team.

By: John E. Egers, Jr., Esquire

As I looked for direction and inspiration for this column, I was reminded by one of my colleagues of the pivotal role played by a former Peacock Keller managing partner, Davis Yohe, in shaping Pennsylvania’s current eminent domain law. As I did my independent research on Mr. Yohe's life and accomplishments, I realized that it is an understatement to say that he lived a full life. I could write an entire column on his accomplishments and experiences, but I will save that for another day. 

Mr. Yohe’s influence upon the law of eminent domain in Pennsylvania gave me just the direction I needed to formulate this Peacock Tale, as I am currently representing a client in litigation that could significantly impact Pennsylvania’s eminent domain law, as well as further Peacock Keller’s long history of contributions to the law in this practice area. 

Most law students do not go to law school dreaming of pursuing a glamorous life in eminent domain law. That includes me. However, in my legal endeavors, I have come across an eminent domain issue unique to this corner of Pennsylvania.  Not only is this an interesting issue, it also carries potentially significant implications for landowners.    

The story starts with the creation of the Interstate Highway System, the impact of which on our economy, defense and daily lives in America cannot be measured.  Underlying the Interstate Highway System in some areas of Washington County is a law that is no longer used for condemning properties, but that nonetheless still impacts landowners today.

The State Highway Law was enacted in 1945. It provided specific powers to the Commonwealth to condemn property for highway use. The courts were not part of the condemnation process.  Essentially, the Department of Highways (precursor to PennDOT) would develop and approve a highway plan, which would then be submitted to the Governor for final approval.  The plan would identify the rights-of-way and easements condemned by the Commonwealth. However, unlike Pennsylvania's current condemnation law, the State Highway Law subjected the landowner to the Commonwealth’s rights-of-way and easements without completely removing all ownership rights to the property.

One court has described the scope of the Commonwealth’s property rights under the State Highway Law in this manner:

"Although the exact nature of such estates in land is difficult to pinpoint, the interest, while not a fee, is not a mere easement or right of way. It is more. It is the right to the actual and exclusive possession of the property at all times and for all purposes, and includes the right to build on the land, fence it in, and exclude other uses. It is comparable to a fee in the surface and so much beneath as may be necessary for support. This estate, taken from an owner under the right of eminent domain, has no further practical value to the owner in view of the rights of the state in it, unless the easement is formally abandoned." In re Marivitz, 636 A.2d 1241, 1243 (Pa. Commw. 1994) [emphasis supplied]

In my opinion, this type of eminent domain action was much more invasive, and had more negative consequences for a property owner, than the condemnation procedure under current eminent domain law. The current law permits the governmental entity to take an unqualified right to property under a fee simple interest in the land, leaving no interest for the property owner. By contrast, the State Highway Law left the property owner with some rights, which remained subject to the Commonwealth’s rights to use the land at any time.  Under the State Highway Law, a landowner was obligated to pay real estate taxes, while the Commonwealth had no such obligation.  The Commonwealth could also appear out of the blue and take various actions, such as widening a highway onto a landowner's property, or building a drainage system on the land without further legal proceedings.  Imagine trying to sell property containing a drainage system built by the Commonwealth, without the landowner's consent, and on which the landowner was still responsible for paying the property taxes!

Although current Pennsylvania eminent domain law affords significantly more rights to landowners, current purchasers and owners of land nonetheless may be affected by the prior chain of title if it includes conveyances under the prior State Highway Law.

So, what is the takeaway? For those considering purchasing real estate with a view of an interstate or other highway, we recommend that you have a thorough title examination performed, including review of state highway plans.  The state highway plans that were approved by the Governor prior to 1964 and that affect highways within your county are required to be available in the local recorder of deeds office.  However, most likely these plans will not be found within the standard chain of title that is revealed through a routine title search. Depending on the local practice of the recorder of deeds, the state highway plan may have been recorded in a location or format that is different from that used for the deed to your property. 

For those who already own real estate, there are currently limited avenues of recourse. For landowners, there may be recourse in the pending appeal before the Supreme Court of Pennsylvania in the matter of Bindas v. Commonwealth of Pennsylvania, Department of Transportation, 27 WAP 2022. Oral argument is scheduled for April 2023. I will be arguing the appeal on behalf of the landowner, Mr. Bindas. The Supreme Court’s decision could have far-reaching effects upon PennDOT’s current claims to land condemned decades ago under the State Highway Law.   Stay tuned!   

John E. Egers, Jr. is Of Counsel with Peacock Keller.  His practice focuses upon general litigation in federal and state courts, including eminent domain litigation, as well as real estate and employment law.

It is with great pleasure that Peacock Keller announces that John E. Egers, Jr. has joined us as an Of Counsel attorney in the firm's Litigation Department.  John was born and raised in Washington PA and grew up in a working-class household, the son of a machinist and a nurse.  

John brings a richness of experience to the firm with his 20 years in the legal profession.  A passionate advocate for his clients, John has represented clients in a variety of matters, including breaches of contract, civil rights, criminal defense, collections, expungements, juvenile delinquency, protection from abuse, real estate disputes, eminent domain, unemployment compensation, wage and hour claims, employment discrimination and harassment matters. John is also experienced in forming corporations, drafting wills and powers of attorney and probating estates. 

John serves his clients by truly hearing them, which is often a far too rare skill in our profession as lawyers are known for their talking and not their listening.  One of the greatest services a lawyer can provide to clients is simply to listen to them deeply, with empathy and compassion.  John does that on a daily basis.

Commenting on John's addition to the firm, Managing Partner Jonathan Higie said, "John's experience will allow Peacock Keller to continue to provide our clients with excellent results and exceptional service.  And his ties to the area anchor him in our local community.  We are fortunate that John has decided to join us and we look forward to working with him."

John graduated from Edinboro University of Pennsylvania Summa Cum Laude with an Honors Program Degree.  In 2002, he earned his Juris Doctorate from Duquesne University.  

John and his wife, Amy, are raising their son and daughter in South Franklin Township.

Peacock Keller is excited to have such an experienced, dedicated and thoughtful attorney join our team.  Please join us in welcoming John Egers, Jr. to Peacock Keller.

By: Susan M. Key, Esquire

With the holidays approaching, our estate planning attorneys are often asked to explain the rules associated with the gifting of assets.  Our clients want to know how much they can give away in a given year without being penalized.  In fact, several rules apply to gifts. These rules are summarized below.

Federal Estate and Gift Tax

One commonly known but misunderstood rule is the annual gift tax exclusion.  This is federal law and is part of the federal estate and gift tax rules.  Historically, an individual could give $10,000 per person, per year without having to file a gift tax return. That amount was indexed for inflation and is currently $16,000 in 2022  (scheduled to increase to $17,000 in 2023).  This means that, in 2022, any individual can give up to $16,000 to any other person(s) without incurring gift tax consequences or reducing their remaining exemption. Married couples can also gift-split and effectively gift $32,000 to any donee. This is a tried-and-true method of passing wealth to others in a tax efficient manner. If the donee is married, the donor can double that amount.  In other words, a mother and father could give their child and the child's spouse $64,000 in 2022 without having to file a federal gift tax return.

It is important to remember, however, that the federal estate tax law and gift tax law are unified.  In 2022, each individual has an exemption from federal estate and gift tax of $12,060,000.  Therefore, if an individual gives more than $16,000 per person in the 2022 calendar year, that individual would not owe any gift tax in that year but would reduce a portion of their lifetime exclusion from federal estate tax. 

The above exemption is set to sunset at the end of 2025. Therefore, if Congress does not proactively take action to extend the current increased exemptions, as of January 1, 2026 the exemption will revert to the ATRA level of $5,000,000, indexed for inflation. This amount is expected to be in the mid to high $6,000,000 range. 

Pennsylvania Inheritance Tax

Pennsylvania has a one-year look back for gifts made within a year of death. The only exception is for gifts in the amount of $3,000 per person or less. Otherwise, Pennsylvania imposes a transfer tax (aka inheritance tax) on everything a decedent owned on the date of death and on any asset in which the decedent retained a right of use or enjoyment.  The only asset exempt from Pennsylvania's inheritance tax is life insurance.  Therefore, the only way to avoid the tax is to give away assets more than a year before you die and not retain the right to use or enjoy the asset conveyed.

Medicaid Planning

Medicaid is the government program for paying the long-term care expenses of a resident of a skilled-nursing facility who does not have sufficient assets to pay for their own care. A person can lose eligibility for such assistance if they have made a gift within 5 years of their application for Medicaid assistance.  This is an obvious risk that should be seriously considered before making any substantial gift. 

Although certain exceptions apply such as gifts to a spouse or to a disabled child or caregiver child, those exceptions should be discussed with an attorney to ensure they will not create a period of ineligibility.  Otherwise, the only gifts that are exempt for Medicaid applicants are gifts totaling $500 per month or less.

Susan M. Key is a partner in Peacock Keller's estates and trusts and business law departments.

By: Keith E. Hodgens II, Esquire

If your business is ever involved in litigation, the attorney-client privilege will protect from disclosure certain communications between you, or others in your organization, and your organization's attorney. However, this protection may be lost if your company does not treat privileged information appropriately, a task that can be especially complex in the business setting.

The attorney-client privilege does not protect every conversation with counsel.  Rather, it protects communications between a client and counsel which are made for the purpose of obtaining or providing legal advice or services and which are intended to be confidential. The privilege is intended to promote open communication between client and counsel in order to foster effective representation.

 With respect to communications in a business setting, it is sometimes difficult to identify exactly who the "client" is, since the business entity acts or "speaks" through its officers, directors, or other agents. The attorney-client privilege extends only to agents or employees who are authorized to act on the entity's behalf.

Importantly, there must be an intent that the communication be kept in confidence. If a third party who is neither a representative nor agent of the business is present during a communication with counsel, it cannot be said that the communication was intended to be confidential. Businesses often involve counsel in meetings under the mistaken belief that the attorney's presence alone protects the discussion. Routine business matters, however, cannot be protected simply by including counsel in the room or in the discussion or by copying counsel on a written communication.  Further, if business and legal topics are discussed together and counsel is present, only the portion of the communication which addresses the legal issues and is intended to be confidential is potentially protected by the privilege.

Privileged communications should be treated in the same manner as the company's most sensitive business information, and distributed only on a confidential, need-to-know basis within the organization. Discussions with counsel should be limited to the individuals necessary to the conversation. Any disclosure to a third party may waive the privilege, even if the third party agrees not to disclose the communication to others. 

If you have any questions or would like to learn more about the attorney-client privilege, please contact one of our attorneys.

Keith E. Hodgens II is an associate in Peacock Keller's business and estates and trusts departments.

Partner, Susan Key, was presented with the Charles C. Keller Distinguished Service Award by the Washington County Bar Association at its dinner meeting on October 17, 2022, in recognition of her many years of service to the Bar Association and its efforts to support the community. This also marked the first time in the history of the Association that one attorney earned all three of the Association’s top awards as Susan had previously received the Robert L. Ceisler Professionalism award and a Certificate of Meritorious Service. 

By: Thomas A. Steele

Across the country, summer activities are in full swing. Enjoying some time outdoors in the pool is likely to be high on many families' to-do lists for fun in the sun.

Pool sales soared during the pandemic, and the demand has not slowed down since. Thoughts of a backyard pool bring to mind carefree images of plunging into the water on a hot day. But before diving in, you should consider important safety issues and your potential liability for injuries that could occur at your pool.

Because a pool is part of the property, premises liability rules typically determine the liability of the property owner for pool-related injuries. Private pool owners have a duty to reasonably maintain the pool, repair potential hazards, and warn social guests of any dangers that are not open and obvious. Pool owners can also be liable for injuries to children if they are not adequately supervised. 

As a pool owner, you may be legally responsible for those in you pool, regardless of whether or not they are invited guests. Pools are known as an “attractive nuisance” according to Pennsylvania law. An attractive nuisance is something that is tempting to children but that might cause them harm. You could be liable for injuries to children who wander into your pool area uninvited.  Merely having a fence and a cover around the pool will not be enough to avoid liability for accidents if your fence lacks a lock that cannot be opened by young children. 

If someone is injured at your home pool, you could incur responsibility for substantial medical and legal expenses. A recent case that arose close to home provides a sobering cautionary illustration. A jury in Westmoreland County, Pennsylvania recently awarded the largest verdict ever assessed in a Westmoreland County civil trial, $19 million. The plaintiff in the case, a then 21-year-old, suffered a broken neck and other injuries when he dove into an in-ground swimming pool during a holiday party. Witnesses said he jumped off a diving board and onto a raft and was propelled into the water, striking his head in the area between the shallow and deep ends of the pool. His injuries left him paralyzed from the waist down. The raft was designed to be pulled behind a boat but was routinely used by the family in the pool. According to the plaintiff, the pool owners were negligent because the raft was not suitable for use in pools. The plaintiff also claimed that the pool owners covered up a warning on the raft.

A swimming pool is an enjoyable amenity, but it is also an enormous responsibility. Take a look around your pool and make sure it is secured by a fence and locking gate. Also, check to be sure any pool toys and floats are appropriate for use in your pool. Talk to your insurance agent to determine whether you have an appropriate amount of liability protection under your homeowner’s policy. 

We here at Peacock Keller want you to have a fun and safe summer. An injury at your pool can tarnish friendships, cause life-changing injuries, and cost you thousands, if not millions, of dollars in damages. Taking a few precautions can help to prevent those consequences.

Thomas A. Steele is a partner in Peacock Keller's litigation department.

By:  Richard J. Amrhein

Your home is your castle. You meticulously maintain your lawn and landscape and have created the perfect outdoor space of privacy and tranquility. You might have a pool, or a large wooded area where people ride ATVs. You may have animals that you do not want to be disturbed by a stranger. You are concerned about a trespasser becoming injured on your property, and you wonder how to prevent unwanted visitors from entering. If proper notice is given, unwanted visitors are considered trespassers under the law and are subject to criminal sanctions. 

Title 18, Section 3503 of the Pennsylvania Crimes Code defines the offense of Criminal Trespass. There are two sub-categories of Criminal Trespass which apply to intrusions onto outdoor property:  Defiant trespass and Agricultural trespass.

Defiant trespass is defined as when a person "knowing that he is not licensed or privileged to do so, enters or remains in any place as to which notice against trespass is given." Excluding types of notices that are specific to schools, notice may be given by:

 1. actual communication to the actor;

 2. posting in a manner prescribed by law or reasonably likely to come to the attention of intruders;

 3. fencing or other enclosure manifestly designed to exclude intruders; or

 4. the placement of identifying purple paint marks on trees or posts on the property.

Agricultural trespass is defined as when a person "knowing that he is not licensed or privileged to do so," enters or remains on agricultural or other open lands:

 1. when such lands are posted in a manner prescribed by law or reasonably likely to come to the person's attention or are fenced or enclosed in a manner manifestly designed to exclude trespassers or to confine domestic animals; or

 2. defies an order not to enter or to leave that has been personally communicated to him by the owner of the lands or other authorized person.

For purposes of trespass, agricultural property is defined as "public and private research activity, records, data and data-gathering equipment related to agricultural products as well as the commercial production of agricultural crops, livestock or livestock products, poultry or poultry products, trees and timber products, milk, eggs or dairy products, or fruits or other horticultural products."

The difference between Defiant trespass and Agricultural trespass is in the level of the offense. Defiant trespass is generally a summary offense, like a traffic citation, unless the property owner communicated directly to the individual that he or she was not permitted to enter the property; in that case, the Defiant trespass is a misdemeanor of the third degree. 

Agricultural trespass is a misdemeanor of the third degree, unless the property owner communicated directly to the individual that he or she was not permitted to enter the property; in that case, the Agricultural trespass is a misdemeanor of the second degree.

Both Defiant trespass and Agricultural trespass permit giving notice via posting the property “in a manner prescribed by law or reasonably likely to come to the attention of intruders.” Pennsylvania law does not establish requirements as to the size, design, and content of the no trespassing sign, nor does it require the use of multiple signs at specified distances from one another. The posting must only be large and clear enough that a trespasser should see it and must be placed in an area that is noticeable to people coming onto the property. Color is not prescribed, but a bright or readily visible color that would stand out against the surroundings is advisable. 

Even though the statute does not dictate the number of signs required, reasonable judgment should be exercised as to their number and locations to avoid the possibility that a potential trespasser fails to see a sign. A single sign in one location on a large property with multiple points of entry may not be considered sufficiently likely to be seen. A property owner may need to place signs at all potential entry points and/or at intervals around the perimeter of the property. For example, if a road runs along part of the property or there is a known trail or other entry point utilized by trespassers, a property owner may need to post signs at both the driveway/main entrance and along the road, and/or at the entry points of trails entering the property.

For all counties, other than Allegheny and Philadelphia, property owners can also give notice against trespassing by painting purple stripes on trees or fence posts around the property. Known as Purple Paint Laws, a growing number of states are recognizing this method of posting against trespassing. Purple paint is cheaper and easier to maintain, and is not as prone to damage, decay, or malicious removal. 

If this method is used to post property against trespassing, there are very specific requirements set forth in the statue for the markings:

 (A) They must be vertical lines measuring at least eight inches in length and one inch in width;

 (B) The bottom of the line must be at least three feet from the ground, but not higher than five feet from the ground; and

 (C) They must be placed at locations that are readily visible to a person approaching the property and no more than 100 feet apart around the perimeter of the property.

The purple paint method is only recognized under Defiant trespass. If a property would qualify as agricultural, purple paint alone may not be sufficient to provide notice. However, a combined method of posting signs and purple paint would address the requirements of both types of trespass. Purple paint interspersed with signs at all entry points would also allow for using fewer potentially unsightly signs but would still post the property around the entire perimeter. 

Finally, note that there is an express exception to Trespass for "an unarmed person who enters onto posted property for the sole purpose of retrieving a hunting dog." 18 Pa. C.S.A. §3503(c.1). Posting property does not preclude this type of entry. 

Richard J. Amrhein is a partner in Peacock Keller's real estate, estates and trusts, and business law departments.

By: Rachel K. Lozosky

The days are growing shorter, and the breeze carries a chill.  The evening air is filled with the sounds of cheering crowds and high school bands taking the field at halftime.  Soon, the green foliage of summer will give way to the first brilliant orange, red and gold leaves of autumn.  For families and educators, these signs point to one undeniable fact: the new school year is in full swing.

Each back-to-school season presents both a host of new experiences and a familiar sense of return to routine.  Absent major policy changes, the rules that govern student life can fade into the background of families' awareness as more immediate concerns take precedence each day.  However, taking a moment to ensure that you and your child understand and follow school rules and policies is key to setting your student up for a happy and successful school year.

While we certainly cannot cover every specific rule in place at your child's school in this article, we offer the following general "Dos and Don’ts" based on our many years of experience representing school districts.

Do review the Student Handbook when your child brings it home for your signature.  Ensure that both you and your child are aware of the rules and procedures that it contains.  Understand that your child is obligated to follow school rules regardless of whether you sign the Handbook.

Do go beyond the Student Handbook and review your school district's policies pertaining to students, parents, and community members.  These policies will likely be readily accessible on the school website.  

Do review all policies, handbooks and other documents pertaining to any sports or other extracurricular activities in which your child is involved.  Many of these activities impose specific consequences for failing to follow the rules established by the organization (for example, "benching" a student athlete for missing practice.)  If the coach or sponsor requires you or your child to sign off on an agreement to follow the rules, be aware that, similar to the Student Handbook, failure to sign the agreement will not exempt your child from following the rules.

Don't be afraid to ask questions of your child's teacher, school administrator, activity sponsor or coach if you don't understand a rule or policy.  It is always best to open the lines of communication early and proactively, rather than waiting until an issue arises.

Don't assume that your child's conduct outside of school or extra-curricular activities will not result in school-imposed discipline.  Out-of-school conduct that substantially disrupts the school may be subject to consequences. The determination of whether to discipline for this behavior is fact-specific and varies from case to case.  However, you and your child should be aware that actions such as posting threatening content on social media or sending inappropriate communications to fellow students through electronic or other channels outside of school could potentially result in discipline, as well as criminal consequences or civil liability.

Don't assume that policies are meant to serve only as a list of "dos and don'ts" to govern your child's behavior.  Many policies explain your child's rights in a variety of school-related matters. 

The start of a new school year can be both exhilarating and overwhelming for all involved.  School rules are not intended to be an additional burden, but rather, serve as a key part of the foundation upon which a healthy school community is built.

Rachel K. Lozosky is a partner in Peacock Keller's school and employment law departments and the 2022 President of the Pennsylvania School Board Solicitors Association.

By: Eric G. VanKirk

The start of the summer season is marked by graduations from schools of all kinds, starting with pre-kindergarten through college and beyond.  The most likely of these graduations to be accompanied by a sizable party with a large number of teenage guests in attendance is a student's graduation from high school. Gatherings celebrating high school graduates typically take place at the residence of a parent or other family member and usually boast picnic food, yard games and music.  Some of these parties may also include alcohol. If you are serving alcohol, you should be aware of Pennsylvania law regarding social host liability and take precautions accordingly. 

In many states, social hosts can be held liable for serving alcohol to people who ultimately injure or kill others due to their intoxication. Pennsylvania’s laws on this issue, however, are more nuanced.

While we all have a moral obligation to ensure that intoxicated guests don’t drive, under the Commonwealth’s "Dram Shop Act," only establishments licensed to serve alcohol are civilly responsible for the negligence of any individuals who drink on the premises and go on to injure others. Injured parties may be able to secure compensation, but only if they can prove that the licensed establishment continued serving alcohol to a “visibly-intoxicated” person.  (Civil and criminal penalties also apply, of course, to commercial venues that serve alcohol without proper licensing.)

Pennsylvania law also recognizes civil liability claims against private social hosts, who can be held liable for injuries and damage caused only by people under the age of twenty-one.  The rationale is that hosts are not responsible for adults who have attained the legal drinking age and should therefore be responsible for the amount that they drink and the consequences that may arise from their overindulgence.   

A homeowner may also be charged with a criminal offense if law enforcement suspects that he or she has furnished alcohol to anyone under the age of twenty-one. Doing so is a misdemeanor offense in Pennsylvania with a mandatory minimum fine of $1,000.00 for the first violation.  Importantly, an adult does not need to provide the alcohol in order to be charged. Simply permitting underage individuals to consume alcohol on a property owned or controlled by the adult is defined as a criminal violation.

Naturally, hosts want all of their guests to have a good time at the party. We here at Peacock Keller want you to have a fun and safe graduation season.  Taking some common sense precautions, like keeping alcoholic beverages in a separate cooler away from the other refreshments and intervening to stop any underage drinking that you may spot, will help you to ensure the safety of your guests and everyone they encounter on the road, as well as keep you out of legal trouble.

Eric G. VanKirk is an associate in Peacock Keller's litigation department.

By: Douglas R. Nolin

It’s your first outdoor party of the summer.  Your family and friends should be arriving soon.  The grill is hot, and the aroma of juicy burgers and dogs hangs in the air.  The drink coolers are fully stocked.  The picnic tables and chairs are set.  Your dog, Killer, is lying under a picnic table, dreaming of table scraps.  The chips, salsa, potato salad and condiments are on the serving table, covered to keep the flies away.  The tiki torches are lit.  The pool cover is off, and the water is crystal clear and inviting.  The cornhole set and the horseshoe pits are ready.  The kids’ swing set has been cleaned, to remove any accumulated winter crud.  

You look around and wonder if anything has been forgotten.

Your lawyer might look around and wonder if there is any hidden danger that might cause harm to your guests.

In Pennsylvania, the duty you owe to someone on your property depends (at least in part) on their status.  For example, you are least likely to be responsible to someone who doesn’t belong, such as a party crasher or a trespasser.  But just because they don’t belong there, doesn’t mean you will not be responsible if they get injured.  You may still owe them some duty of care.

The highest level of care you owe is to the people you invite to your home, all those family members and friends who are coming to your summer party.  They are coming for a good time; they are not coming expecting to get injured or sick.  They are counting on you to keep them safe at your party.

Your liability to your guests will depend on what you knew, or should have known, about the dangers on your property.  So look around, and pay attention to any dangers that you know about, or should know about.

Are there any ruts, holes or tripping hazards in the yard that might catch an ankle?  How does Killer behave around company, including children?  Is all of your furniture solid, or is there a chance that a chair will break and send someone tumbling?  Is the hot grill accessible to small children?  

What about the food and drink?  Is the potato salad sufficiently chilled, or might it cause someone to get sick?  Has the meat been properly handled and sufficiently cooked?  Are you serving alcohol, and is it accessible to an underage guest?

Consider the games.  Are the horseshoe pits safely away from other activities?  Although you can’t control how people play the game and toss the horseshoes, you might need to think about what’s nearby, in case an errant horseshoe goes flying.

How about the pool? Is it open to small children?  Are there any safety hazards on the deck or in the water?

Everyone loves a good party.  We here at Peacock Keller are no different.  We want you to have a fun and safe summer.  To do so, start by taking a look around at your home, and consider your party plans.  Remember, if there is a danger that you know about, or should know about, you should do something about it before you invite guests to your property.

In later articles this summer, we will share with you some ideas about specific dangers, such as pools and alcohol.  But for now, be smart, be careful, and be a safe party host.

Douglas R. Nolin is a partner in Peacock Keller's litigation department.

By Dorothy A. Milovac

Warm weather gatherings are often accompanied by sparklers and firecrackers galore.  As Memorial Day kicks-off summertime celebrations, the onslaught of "crack! bang! boom!" sounds is bound to begin.  Noise ordinance violations aside, what types of regulations has Pennsylvania put in place to govern the use of fireworks?

It is helpful to begin by defining the different types of fireworks that you may find at your summer celebrations.  Pennsylvania Act 43 of 2017 defines display fireworks as large fireworks which are intended to be used solely by professional pyrotechnicians and are designed primarily to produce visible or audible effects by combustion, deflagration, or detonation. The term generally includes display pieces that exceed the limits of explosive materials for classification as consumer fireworks.  Display fireworks may only be possessed and used by a person at least twenty-one years of age who holds a permit from the municipality in which the display is launched.

Consumer fireworks, on the other hand, include the party poppers, snakes, snappers, smoke bombs, fountains and spinners that you are likely to find at backyard summer gatherings. They are defined by the Act as any explosive composition or any substance or combination of substances which is or are intended to produce visible or audible effects only by combustion.  To meet the definition of consumer fireworks, the items must also be suitable for use by the public and in compliance with the construction, performance, composition, and labeling requirements promulgated by the Consumer Products Safety Commission, as well as the provisions governing consumer fireworks as defined in American Pyrotechnics Association Standard 87-1. 

Notably, the term "consumer fireworks" does not include ground and hand-held sparkling devices ("sparklers"), the sale, possession, and use of which are permitted at all times throughout the Commonwealth. 

Where does one purchase these party favors? While sparklers can often be found in your local grocery or dollar store, you are likely to find tents advertising the sale of consumer fireworks cropping up in parking lots and other locations around certain summer holidays.  While the days leading up to Memorial Day may mark the first appearances of these rather ubiquitous tents, Pennsylvania law only permits these types of temporary sales locations to set up shop from June 15th through July 8th, and December 21st through January 2nd, annually.  In addition, these structures must be located no closer than 250 feet from a facility storing, selling, or dispensing gasoline, propane or other flammable products, and may not exceed 2,500 total square feet.

In spite of the reduced dangers consumer fireworks and sparklers pose in comparison to display fireworks, Pennsylvania law nonetheless imposes numerous restrictions on their use to protect community safety. An individual must be 18 years of age to purchase, possess, and use consumer fireworks. (But remember, sparklers are not "consumer fireworks," so there is no need to hide them from the kids!)  Users of consumer fireworks are prohibited from intentionally igniting or discharging these devices on public or private property without the express permission of the property owner, or within 150 feet of an occupied structure.  Individuals are also prohibited from using commercial fireworks or sparklers within or throwing them from or into a motor vehicle or building.  Finally, individuals may not use commercial fireworks or sparklers while under the influence of alcohol or a controlled substance or other drug. 

The Act provides numerous penalties for violations of its provisions, depending on the type and degree of the violation at hand.   A person using consumer fireworks in violation of the Act commits a summary offense and, upon conviction, will be punished by a fine of not more than $100.  A person selling consumer fireworks in violation of the Act commits a misdemeanor of the second degree.  A person selling display fireworks in violation of the Act commits a felony of the third degree.  Finally, a person selling federally illegal explosives, such as the devices commonly referred to as M-80s or cherry bombs, in violation of the Act, commits a felony of the third degree.

In matters of fireworks usage, Pennsylvania takes the safety of its citizens seriously.  Adherence to the restrictions imposed by law as well as taking common sense precautions can ensure that you safely begin your summer with a bang.

Dorothy A. Milovac is an associate with Peacock Keller and practices in the firm's estates, real estate, and business departments.

By Janine E. Smith

Dogs are considered humanity's best friend.  Many of us share our homes with one or more canine companions.  Unfortunately, even the best dog can be involved in an incident.  Any dog owner could someday be faced with a situation in which their dog has injured someone, either accidently by knocking someone down, or through a more intentional act, like a bite. According to the Insurance Information Institute and State Farm Insurance, Pennsylvania ranks fifth in the nation for the number of dog bite claims annually. 

Many dog owners believe that they cannot be held liable for a bite if it was the first time the dog displayed aggressive behavior. At one time, this was true in Pennsylvania. However, in recognition of the harm caused by dog bites, the Pennsylvania legislature changed the law in 2008. Despite the change, many people incorrectly believe that the "one free bite rule" still applies.

Under current Pennsylvania law, if a dog bites and injures someone, the dog's owner is financially responsible for the entire cost of the victim's medical treatment related to the injury, regardless of proof of fault. This means that the circumstances of the bite do not matter; the dog owner is responsible for the victim's medical bills. Further, if it is determined that the dog must be quarantined following a bite, the owner is responsible for the costs of quarantine. 

A dog owner may also be responsible for other damages, such as pain and suffering or lost wages, if it can be established that the owner knew that their dog had vicious tendencies and failed to take reasonable steps to properly control their dog. What makes a dog "vicious" depends on the circumstances. A dog may be found to have vicious tendencies without biting someone if the dog has demonstrated signs of aggression, barks or growls excessively, or is a breed known for aggressive behaviors.

What does this mean for dog owners? To help prevent additional liability if an incident occurs, dog owners should be familiar with their dogs' personalities and take proactive measures. Leash laws should be followed, and dogs left outside unattended should be properly fenced in. Known triggers that may lead to an incident should be avoided or addressed with training. For example, an owner of a dog that is frightened of children or other dogs may want to avoid the park until the fear is overcome. Owners of dogs with aggressive tendencies may be obligated to take additional preventative measures, such as muzzles, to keep their dogs appropriately under control. The best defense is preventing a bite from the start.

If you have questions about your legal obligations as a dog owner, contact a Peacock Keller attorney. We would be glad to assist you. 

Janine E. Smith is an associate in Peacock Keller’s litigation department and has a particular interest in animal law. She is an avid dog lover and is the proud owner of four Yorkshire Terriers. In her spare time, she trains and competes with her dogs in various performance sports, achieving the titles of Teacup Agility Champion and Puppy Rally Champion.  She also teaches puppy obedience classes to new dog owners.

By: Janine E. Smith

Animals have aided humans since ancient times. Over the years, society has come to rely more and more on animals for assistance. Currently, there are three generally recognized categories of assistance animals: service animals, emotional support animals, and therapy animals.  Confusion can arise among the different types of assistance animals, the criteria that qualify an animal under the various categories, and the legal rights that attach to each. It is important to understand the distinctions, even if you do not own an assistance animal, given the likelihood that you will encounter one at some point. 

Part 1: Service Animals

Service animals are almost universally recognized by the public.  The term "service animal" often brings to mind a seeing eye dog; however, service animals are not limited to dogs that assist visually impaired individuals.  A service animal is defined by the Americans with Disabilities Act (ADA) as a dog that has been individually trained to perform a specific task or tasks to assist an individual with a physical or psychiatric disability. Updated ADA regulations were issued in 2010, which provide that a miniature horse, favored for some tasks due to its significantly longer life span and/or larger size, may also qualify as a service animal, if the public facility where the horse would be used can accommodate the horse’s size and weight. 

Service animals can be trained to perform a multitude of jobs, including mobility assistance, providing medical alerts for low blood sugar or oncoming seizures, protecting their handlers, retrieving medication during a medical event, or even calling 911 via a K9 safety phone. Some handlers even have more than one service animal, each trained for different tasks. 

Under the ADA, service animals have full public access rights, meaning they are allowed to enter places where pets are forbidden, such as the handler's place of employment, restaurants, medical facilities, housing, and public transportation, without incurring additional fees for their handlers. In Pennsylvania, refusing entry to a service animal can be a summary criminal offense and/or may be grounds for a disability discrimination claim. However, a service animal can be prohibited if its presence poses a direct threat to the health or safety of others, if it is out of control and the handler cannot effectively regain control, or if the service animal is not housebroken.

Common misconceptions about service animals include that they must be professionally trained, that they must wear a harness or vest declaring that they are service animals, and that their handlers must carry certifications. The ADA provides handlers the right to train their own service animals, which many handlers choose to do, depending upon the task at issue. Professional training can cost up to tens of thousands of dollars; therefore, requiring professional training would be a barrier for many individuals with disabilities. Further, the ADA specifically prohibits establishments from requiring documentation or identification as a condition for the service animal's entry into a public space. There is, however, one exception to this prohibition. If a handler wants to take a service animal in the cabin of an airplane, the handler must complete a U.S Department of Transportation self-certification form attesting that the animal is a trained service animal and certifying its acceptable health and behavior.

Since service animals are not required to wear identification, many people wonder how a public establishment can determine that an animal is a service animal, and not just a pet. What stops people from abusing the system? In situations where it is not obvious that the animal is a service animal, a handler can only be asked two questions: (1) Does the handler require the assistance of the animal because of a disability?, and (2) What work or task has the animal been trained to perform? A handler cannot be required to produce any documentation for the service animal, require the service animal to demonstrate its task, or provide specific information about the handler's disability. 

Misrepresenting an animal as a service animal is a crime in at least 23 states. In 2018, Pennsylvania enacted the Assistance and Service Animal Integrity Act, which makes it a criminal offense to fraudulently represent either the need for a service animal, or the claim that a particular animal is a service animal. 

Please stay tuned for our next article, in which we will discuss emotional support animals and therapy animals.

Janine E. Smith is an associate in Peacock Keller’s litigation department and has a particular interest in animal law. She is an avid dog lover and is the proud owner of four Yorkshire Terriers. In her spare time, she trains and competes with her dogs in various performance sports, achieving the titles of Teacup Agility Champion and Puppy Rally Champion.  She also teaches puppy obedience classes to new dog owners.

By  Rachel K. Lozosky

The adventurer and author Bear Grylls is quoted as having said "You can't become a decent horseman until you fall off and get up again, a good number of times.  There's life in a nutshell."  

All of life involves risk, and this is certainly true of life with horses.  Frequent riders know that falling and other mishaps, although unwelcome, are inevitable.  Nonetheless, responsible riders, instructors, and barn owners strive to reduce the risk of physical and emotional injuries to themselves, their horses, and other people.  But when things don't go as planned, those involved with horses must look beyond the risk of bruises, broken limbs and battered confidence to the legal risks that may apply.

The controlling statute on this issue in Pennsylvania is the Equine Activity Immunity Act, 4 P.S. Section 601, et. seq.  The Act applies to any "individual, group, club or business entity that sponsors, organizes, conducts or provides the facilities for an equine activity."  The Act's definition of an "equine activity" is broad and comprehensive, encompassing many aspects of horse-related pursuits for business and pleasure. Training, boarding and breeding horses, along with teaching riding lessons or clinics and performing pre-purchase evaluations, are included. Participation in competitions or performances ranging from Gran Prix jumping or dressage, to rodeos, to local riding academy horse shows, are also encompassed.  Even those whose contact with horses is limited to taking a trail ride or carriage tour while vacationing in Pennsylvania are covered.  In addition, the routine tasks required to care for and interact with horses, including leading, handling, grooming and providing hoof care, are counted among the "equine activities" addressed by the Act.

The purpose of the Act is to promote equine activities by providing trainers, instructors, facility owners and others who work with horses immunity from liability for negligence in actions involving injury to or death of adult humans who knowingly and voluntarily assume the risk of participating in equine activities.  Immunity will apply if a sign that meets the Act's requirements has been posted on the premises.  Specifically, the sign must state "You assume the risk of equine activities pursuant to Pennsylvania law."  The sign must be at least three feet by two feet in size, and must be posted in two or more locations.

While broad in many respects, the Act does not provide all-inclusive protection from liability. The Act will be narrowly construed to the activities listed. If a horse escapes its pasture into the street and causes an automobile accident, the Act will not provide immunity for the horse's owner or handlers. The Act also expressly applies to only adult participants in equine activities.  If a minor child is injured through an occurrence such as falling from a horse, those involved may be held liable. The Act also may not provide immunity for injuries resulting from defective equipment, or when an individual displays an intentional disregard for the safety of participants. These are examples of situations that would not typically be viewed as involving knowing and voluntary assumption of risk on the part of the injured person.

Many facilities utilize liability waivers to bolster the immunity afforded by the Act.  While this may seem redundant, the use of waivers can expand liability protection.  Waivers serve an important function in demonstrating that the participant knowingly and voluntarily assumed the risk of the activity. A parent can sign a waiver on behalf of his or her child, and the waiver will be applied as to the parent, barring the parent's cause of action. However, the minor child's claim survives; therefore, the child may still have a separate right to recover damages after reaching the age of majority.

Risk is an inescapable part of life.  For many, the rewards of sharing life with horses outweigh the potential for harm.  By taking proactive and reasonable steps to protect the safety of everyone involved, risk can be minimized and managed, and the focus can shift to the innumerable physical, mental, emotional and social rewards that equine activities have to offer.

Rachel K. Lozosky is a partner in Peacock Keller's employment and school law departments and an avid equestrian.  She participates in lessons and clinics in hunt seat equitation.  

by: Janine E. Smith

On any given day, animals can be found assisting humans in all areas of life: at the local library "reading" to children, accompanying their handlers to the supermarket or shopping center, on alert for their handlers' medical needs, or providing comfort to people during difficult times. While these tasks all provide valuable assistance, different tasks lead to very different treatment under the law of the animals that perform them.

Part 2:  Emotional Support Animals and Therapy Animals

Emotional support animals (ESAs) are animals that have been prescribed by a mental health professional to assist a patient with a diagnosed psychological ailment. An ESA can be any species of animal. While ESAs may seem similar to service animals at first glance, the difference lies in the fact that an ESA provides comfort or emotional support to its owner through its presence, rather than by performing specific tasks related to the owner's disability. While an ESA likely will have basic obedience training, it will not qualify as a service animal under the Americans With Disabilities Act in the absence of training to perform a specific assistive task. 

Owners of ESAs have limited legal rights under the Fair Housing Act, which provides that the owner of an ESA is entitled, without additional fees, to keep the animal in housing that may otherwise prohibit pets, or that has breed and size restrictions. Denial of permission to keep an ESA in a residence when the handler has a valid letter from a mental health practitioner prescribing an ESA may be grounds for a discrimination claim. However, ESAs do not have the right to stay in hotels, enter medical facilities, travel on public transportation, or enter other public spaces that do not permit pets or other animals. 

There are widely prevailing misconceptions that a ESA can, or must, be certified, registered, or licensed by commercial registration bodies. A simple internet search will result in dozens of sites willing to "certify" any animal as an ESA, for a fee. However, these sites are not legitimate.  The U.S. Department of Housing specifically warns against sites that sell certifications, registrations or licenses to qualify animals as ESAs, since only a qualified mental health practitioner can prescribe an ESA. Note that these sites are different from legitimate online medical practitioners, who provide virtual medical examinations and consultations to patients, and can validly prescribe an ESA. The difference lies in the fact that fraudulent websites "certify" the animal, typically without consideration of the human handler's medical needs, and are often operated by individuals with no medical training.  By contrast, legitimate online physicians evaluate and provide medical care to the patient and can legally prescribe ESAs. 

Unusual or unruly ESAs have made headlines in recent years, particularly in the context of airline transportation.  ESAs have bitten passengers and airline attendants and caused other disruptions in airports and on airplanes. As a result, in 2021, the U.S. Department of Transportation changed its regulations, permitting airlines to ban ESAs from aircraft cabins.  Nearly every major U.S. airline has followed suit, although ESAs are still generally permitted to fly free of charge in the cargo hold. 

Communities have also long sought relief in dealing with residents who fraudulently claim that their pets are ESAs simply to avoid compliance with pet rules or fees. In Pennsylvania, the Assistance and Service Animal Integrity Act was enacted in 2018, making it a criminal offense to fraudulently represent either a human's need for an ESA or a claim that a particular animal is an ESA for housing purposes. 

Therapy Animals

Therapy animals may be the least recognized type of assistance animal, although they are most likely to benefit the general public. Therapy animals are used by their handlers to provide therapeutic assistance to others.  While animals of any species can be utilized as therapy animals, people may be most familiar with therapy dogs and cats, and equine therapy. Therapy animals are frequent visitors to schools, libraries, long-term care and hospice facilities and disaster sites.  Therapy animals have even been used by court systems to comfort victims of violent crimes, especially children, including while the victims testify in court.

There is currently no legal definition or recognition of a therapy animal, and they do not have any legal right to access public places that do not otherwise permit pets. Therapy animals are considered companion animals, i.e., pets, under the law. Therapy animals are certified by private entities (often non-profit organizations), each of which has its own standards for testing and qualification. Certification typically involves veterinary clearance, temperament testing, and demonstration that the animal is capable of working in the intended therapy setting. Therapy dogs, for example, have calm temperaments, are well-trained in obedience, have passed rigorous performance tests demonstrating their ability to safely navigate a therapy setting, and are registered and insured by their handlers through one of the non-profit organizations that offers therapy dog certification.  

Janine E. Smith is an associate in Peacock Keller’s litigation department and has a particular interest in animal law. She is an avid dog lover and is the proud owner of four Yorkshire Terriers. In her spare time, she trains and competes with her dogs in various performance sports, achieving the titles of Teacup Agility Champion and Puppy Rally Champion.  She also teaches puppy obedience classes to new dog owners.

By Natalie N. Jefferis

Have you inherited property in West Virginia from a deceased family member?

Was his/her estate probated in Pennsylvania and NOT in West Virginia?

If you answered YES to both questions, you should consider probating the estate in West Virginia.  Ancillary administration processes can help you probate the estate in a truncated timeframe.  If a decedent died with a will (testate), and the estate was probated in Pennsylvania, then an interested party can file for Ancillary Administration Without Appointment in West Virginia.  The interested party files an "Affidavit of Ancillary Administration Without Appointment" along with an authenticated will and certified copy of the death certificate in the county where the decedent owned property.  The County Clerk then provides notice to the public of the ancillary administration filing.  Notice by certified mail is also provided to those individuals that may have an interest in the estate.  If no one objects to the administration of the estate, the probate process is complete.

A similar process is available for a decedent who died without a will (intestate) when his/her estate was probated in Pennsylvania by filing an "Affidavit of Heirs of Nonresident Intestate Decedent Without Appointment of Intestate Administrator."

So why go through this process?  It ensures the decedent's wishes are recognized and carried out, it ensures the correct ownership of the property is of record, and it allows proper assessment of the property under West Virginia law.  By confirming your ownership interest through Ancillary Administration, you can ensure you receive the full value of your interest in the property, whether selling it or leasing it.  Contact our office for further information about ancillary administration in West Virginia.

By Aaron W. Smith

As geopolitical events cause tumult in energy markets around the globe, the Appalachian region continues to be a powerhouse of energy production.  The states that are generally considered to make up the largest part of the Appalachian Basin, Pennsylvania, West Virginia, and Ohio, rank second (2nd), fifth (5th), and tenth (10th), respectively, in total energy production in the United States and produced a combined 18,420 trillion BTUs of energy in 2019, the most recent year for which that data is available.  As one would imagine, this helps to keep the lights on, not only in Appalachia, but nationally as well.  Pennsylvania is the third (3rd) largest net supplier of energy to other states, while West Virginia comes in as the seventh (7th) largest supplier to other states.  The importance of producing reliable energy in Appalachia will only continue to grow as international events are now shining a spotlight on the enormous consequences that can be brought to bear on nations lacking energy independence.   

United States (“US”) exports of natural gas have grown considerably over the last five years, from just over 2,000,000 million cubic feet in 2016, to over 6,600,000 in 2021.  The recent US ban on the importation of Russian oil and gas may have minimal effect on current domestic gas reserves; however, many European countries rely heavily on Russian natural gas and are also working to end their dependence.  In 2020, Pennsylvania, West Virginia, and Ohio produced roughly 34% of the United States’ natural gas.  As the US looks to fill the void left in the supply of its European allies, any increase in exports will naturally benefit the region.    

The Appalachian Basin’s resurgence has coincided with technological advancements in the extraction of natural gas from the Marcellus and Utica Shale formations and continuing end use diversification within the coal industry. Although the last few years have brought historically low natural gas pricing, gas producers in the Appalachian Basin have stayed the course and have steadily grown production since 2010.  The gas industry has deployed new technology allowing it to grow production by drilling longer horizontal wells from roughly 3,500 feet in 2010 to 9,000 feet.  Once a well has been drilled, it must then be completed to allow the flow of gas.  The completion process has also seen new technologies decrease the time to complete a well even while the length of the wells has increased.  By drilling longer wells, faster, Appalachia has seen a steady increase in natural gas production, together producing over 12,000,000 million cubic feet of natural gas in 2020 (most recent figures available).

While natural gas has made enormous inroads, coal has been, and continues to be, a critical source of the Appalachian Basin’s energy production.  Coal provides a significant amount of the electricity produced in the Appalachian Basin: 93% in West Virginia, 44% in Ohio, and 20% in Pennsylvania. Coal producers in the region have also continued to diversify their end users, resulting in West Virginia and Pennsylvania being the top coal-exporting states.  Given the amount of recoverable coal reserves throughout the Northern Appalachian and Southern Appalachian Basins, coal will continue to be a significant source of energy for the region, as evidenced by the recent annual figures showing that in aggregate, Northern and Southern Appalachia Coal Basins produced over 126 million short tons of coal.

The invasion of Ukraine by Russian military forces on February 24, 2022 has set off a chain reaction of events that have illuminated the importance of US energy independence, while also bringing into focus the important role Appalachian energy plays on a national and international scale.  The continued increase in production of oil and gas, as well as the diversification of end uses for coal produced in Appalachia, is putting Appalachia at center stage in meeting the energy needs of the nation as well as those of the international community. 

By Rachel K. Lozosky

Most large employers are now aware of the federal vaccine mandate applicable to private employers with 100 or more employees, which was originally scheduled to take effect December 4, 2021. An “employee” in this context includes a part-time employee and a temporary employee who is employed at any time that the mandate is in effect.  

As a result of a petition for a permanent injunction filed earlier this month in the Fifth Circuit Court of Appeals, that Court issued an order on November 12 temporarily enjoining OSHA from enforcing the mandate.  OSHA has since published a statement on its website advising that it has suspended activities related to the implementation and enforcement of the mandate pending further court action.

The next step in litigation will be consideration by the Sixth Circuit Court of Appeals of the multiple challenges to the vaccine mandate that have been filed in all other federal appellate courts.  On November 16, all of these challenges, including the petition for injunction filed in the Fifth Circuit, were consolidated to be heard by the Sixth Circuit.  While this is a somewhat unusual procedural step, our interpretation is that when the Sixth Circuit issues a decision regarding whether to allow the mandate to stand, that decision will be binding nationwide on private employers with at least 100 employees, unless and until that decision is reversed, either temporarily or permanently, upon any appeal that may be filed to the United States Supreme Court.

Given our understanding of the leanings of the Sixth Circuit, and the persuasive value that the Fifth Circuit’s anti-mandate opinion may have, we believe it is likely that the Sixth Circuit will not uphold the mandate.  We have no knowledge at this time as to when the Sixth Circuit will issue a decision.  Given the stay that is currently in place and the uncertainty as to whether any change in enforceability of the mandate will occur before the December 4 compliance deadline, some employers will decide not to incur the time and expense involved with preparing a mandatory vaccine policy at this juncture.  There is some practical wisdom in this approach, given all of the above.

However, the safest approach from a compliance standpoint is to prepare a policy now, in case the mandate becomes enforceable on December 4 or shortly thereafter.  The policy that is required by the vaccine mandate will take some time to prepare and implement, and the financial penalties for non-compliance are very significant.  The policy must exceed simply telling employees that they must be vaccinated, although this is one major requirement.  Certain exemptions will apply, including those for religious or disability related reasons.  (Note that religious and disability exemptions will also apply to any vaccine mandates that employers may voluntarily establish, independent of any legal mandate.) The policy also must address issues of paid and unpaid leave and a possible requirement of testing in lieu of vaccine; both of these issues require employers to exercise their discretion among several optional approaches, and therefore require some forethought and planning.  Other issues addressed by the mandate include specific requirements for validation and recordkeeping of testing results, as well as quarantine requirements.  The mandate does allow employers an implementation grace period up to January 4 for putting a testing program in place.  

Each employer will need to decide whether moving forward with preparing a policy at this time is the best course of action for its business.  Peacock Keller’s employment attorneys are available to provide counsel and assistance in making this decision, preparing a policy to satisfy the mandate, or addressing other COVID-related issues of concern.

By Blake J. Birchmeier

In today’s increasingly digital world, almost all of us have acquired a new form of property interest called digital assets.  Digital assets, which are separate from our physical possessions, consists of digital information or communications, i.e. – email accounts, social media accounts, cloud-based storage accounts, digital photos, bank or other financial accounts, and cryptocurrencies, such as Bitcoin, that are stored as data on a computer server and accessed via the internet.  Until now, however, Pennsylvania law provided zero guidance for individuals who wished to transfer their so-called “digital assets” or how these digital assets were able to be accessed by their personal representatives upon their death.  Rather, access and control of these digital assets for Pennsylvanians have been largely governed by the terms-of-service agreement existing between the individual and various private companies.  Those agreements are commonly referred to as “click-through” agreements and are the legal terms of service that almost everyone blindly agrees to by clicking the applicable boxes in order to create an online account or to utilize the online services of a company.  These terms-of-service agreements can create problems for Pennsylvania account holders when they die or become disabled and their personal representative needs to gain access to those accounts on their behalf.

            Fortunately, Pennsylvania recently passed Act 72 of 2020 to provide guidance to Pennsylvanians with respect to the ability to access or transfer their various digital assets.  The Act is formally called the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) and was signed into law by Governor Tom Wolf on July 23, 2020, and took effect in January of 2021.  RUFADAA is designed to work in tandem with Pennsylvania’s existing laws concerning probate, estates, personal representatives, powers of attorney, and trusts.  In fact, RUFADAA now provides a framework within Pennsylvania law whereby you have a direct say and control over access to and the transfer of your digital assets. 

This new framework, under RUFADAA, is strikingly similar to assets that you already own and manage, which can either be controlled by the express provisions of your Will or Trust or through the designation of specified beneficiaries.  In that sense, it is important for you to know that many of these private online companies, such as Google, Apple, Facebook, Yahoo, etc., actually provide what is called an “online tool” so that you can instruct these companies, as custodians of your accounts, exactly who can gain access or control of your account and all or what information in your account those persons have access to.  Therefore, much like a beneficiary designation on your life insurance or retirement account, you have the ability to expressly direct these companies as to the manner of control or access your personal representative has to your information, either upon your death or disability. 

            Of course, there are providers of online accounts that do not provide these sort of user-directed instructions through an online tool, which is where the framework of RUFADAA concerns the various estate planning documents that our clients currently have in effect for the transfer or control of their physical possessions and estate.  In those cases where there are not online tools or designated successors to users online accounts, RUFADDA expressly grants users the power set forth their instructions for their digital assets in their Wills, Trust, or Powers of Attorney, which will override the provisions of the terms-of-service agreement in effect between you and these private companies.  This is critically important, especially if you wish to have your digital assets transferred or accessed in the same or similar manner as your other assets that you have designated and provided instructions related thereto in your Will, Trust, or Powers of Attorney.

Pennsylvanians who fail to properly plan for the management or disposition of their digital assets, whether during life or at death, may not be able to override the express provisions of the terms-of-service agreements in effect between themselves and these private companies.  While RUFADAA provides that the same personal representative appointed to manage a person’s physical possessions will also have the ability to manage that person’s digital assets, in the absence of an online tool or direction in the person’s estate planning documents, access to certain information is limited and can be obtained only through a legal process involving a court. 

It’s a digital world after all and if your digital assets are just as important as the other assets you are passing on to your loved ones, it is important that you contact our Estates and Trusts Attorneys to consider an update to your estate planning documents, so that the provisions and protections of RUFADAA are properly incorporated into your estate plan.

By Susan T. Roberts

Social media postings are fraught with risk for both employers and employees. Rulings issued by the National Labor Relations Board in the last few years have left employers wondering whether they have any rights at all to regulate, monitor and discipline employees for what they post on Facebook and other social media without running afoul of the protected activities provisions of the National Labor Relations Act ("NLRA"). Employees may wonder how far they can go in their social media postings as they run the risk of what they say online will draw their employer's attention.

The NLRA provides protections for both union and non-union workers who take part in "concerted activity" (talking about their employer or work situation or wages) with their co-workers. If an employee's activity on social media can be perceived as protected concerted activity, the employer may violate the NLRA if the employer disciplines the employee for the conduct.

There are limits, however, as to how far an employee can go with their social media posts if the posts are likely to harm the employer's reputation. This month, the Third Circuit Court of Appeals upheld a ruling by a judge of the United States District Court for the Western District of Pennsylvania that held that BNY Mellon did not violate Title VII of the Civil Rights Act of 1964 when it fired a Mt. Lebanon woman because of a social media posting.

The Plaintiff, a senior control analyst for BNY Mellon, was fired after she posted a comment on a news article on Facebook about a man who faced criminal charges for driving his car into a crowd of protestors protesting the death of Antwon Rose, Jr., who was killed by an East Pittsburgh police officer. In response, the Plaintiff posted, "Total BS. Too bad he didn't have a bus to plow through." Her personal Facebook account privacy settings were set to "public" so her comments could be seen by anyone. Her Facebook account also identified her as "VP at Bank of New York Mellon."

BNY Mellon fired the Plaintiff upon discovering her comment and she sued. The Plaintiff, who is white, claimed race discrimination under Title VII. The Plaintiff said that the bank's decision to retain two Black employees who also made controversial posts was evidence of discrimination. The Third Circuit Court found that the Plaintiff's co-workers did not say anything as extreme as the Plaintiff did in their social media posts. "What matters most is that [the Plaintiff's] social media post was far more egregious – and far more likely to harm BNY Mellon's reputation," wrote Judge Cheryl Ann Krause. "Neither post [of the co-workers] encouraged mass violence against protestors, as [the Plaintiff's] did."

The bottom line: when employees use platforms such as Facebook and Twitter, they may legally engage in protected concerted activity. If, however, an employee's postings cross the line and fall outside of concerted activity, careless use of social media can be a legal basis for termination.