Can you legally park or store trucks or heavy equipment in a residential area?

Residential neighborhoods often are protected by zoning ordinances and restrictive covenants. Zoning ordinances are created by municipal governments by cities, townships and boroughs. They regulate use of land, declaring certain areas to be residential, others commercial and others industrial. Special enterprise, agricultural, educational or medical zones may exist in some municipalities. Restrictive covenants are different. Deeds written to convey property from one owner to another may include language restricting the use of the property. In planned residential developments, a lengthy set of restrictive covenants may be recorded. These covenants are not actually listed in the deed to each lot, but are recorded in the county Office of the Recorder of Deeds and are simply referenced in the deeds. A prospective buyer or his or her attorney must read and understand all zoning ordinances and recorded restrictions to fully understand the permitted uses of a property.

In two Pennsylvania cases, home owners were prohibited from parking commercial trucks at their homes. In one case, the truck parking was found to violate the local zoning ordinance; in the other a set of restrictive covenants were deemed to ban truck parking.

In the zoning case, a homeowner regularly parked his truck in the rear of his home in a residential zone in a western Pennsylvania town. The homeowner was a tools franchisee who sold and serviced commercial tools. His Ford P30 truck measured sixteen feet long by ten feet high and contained all his tools and equipment, a phone, fax and computer. He kept all his inventory in the truck and conducted all of his business out of the truck. The homeowner received about eight business-related mail packages per month. After neighbors complained about the homeowner’s business activities, he was cited by the local zoning officer for violating the ban on business uses in the residential zone. The Pennsylvania Commonwealth Court upheld the zoning hearing board and found that the homeowner’s receipt of business mail and his parking of the truck at his home violated the ban on business uses in the residential district.

In the restrictive covenant case, a homeowner sometimes parked his truck tractor and one or more trailers at his home in a planned residential development. He also sometimes repaired the truck tractor at his home. A non-jury trial was held on a lawsuit brought against the homeowner by the Architectural Control Committee of the development. The trial court found that the homeowner’s parking and repair of his truck tractor and trailers did not violate the restrictive covenants; however, on appeal the trial court was reversed. The Pennsylvania Superior Court found that the covenants which prohibited all uses except residential uses and which banned “tractors” and “trailers” were clearly violated by the homeowner. “Storage of heavy equipment is neither incidental to, nor customary in, a residential area,” the Court noted.

Litigation concerning the permitted use of residential property is complicated and subject to many exceptions. Homeowners may be entitled to variances from zoning regulations and restrictive covenants are subject to strict interpretation by the courts. Before assuming that a particular use is permitted or prohibited, a homeowner should thoroughly review the zoning laws, all recorded covenants and the history of the use of the property.

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Can you be guilty of “driving under the influence” without actually driving?

It is safe to assume that most Pennsylvania drivers realize that it is illegal to drive under the influence of alcohol. But some of the details and workings of the Pennsylvania statute may surprise you. For example, while the crime is called “Driving Under the Influence,” you can actually commit the crime without doing any driving. The statute forbids drivers from being in “actual physical control” of a vehicle while under the influence of alcohol or drugs. Pennsylvania courts have determined that a driver is in actual physical control of a vehicle stopped or parked on the side of the road, either running or with the keys in the ignition.

Furthermore, while most Pennsylvanians might assume that only those on the road are subject to arrest for Driving Under the Influence, the statute makes it a crime to exercise control over a vehicle in a “trafficway” while under the influence. Our courts have held that parking lots subject to public use are trafficways, even if the lots are posted with “private” signs. Even where access to a private lot is restricted, but the lot is used by tenants, delivery persons, visitors, and other members of the general public, the lot qualifies as a public trafficway if users are entitled to an expectation that others will drive safely. Public parking lots, like those that serve businesses, restaurants, malls, and other places generally held open to the public, are considered trafficways, as well.

To convict a driver of Driving Under the Influence, a prosecutor must be able to show that the driver was under the influence of alcohol or drugs to a degree that he or she was incapable of safe driving, or must be able to show that the driver had a blood-alcohol content of .1% or greater at the time of his or her control of the vehicle. While it is risky to do any driving after drinking, the mere presence of alcohol in your blood is not enough to create liability for the crime.

Drivers found asleep in their cars by the roadside or in public parking lots are vulnerable to arrest and conviction for Driving Under the Influence. If you find that you have consumed more alcohol than is safe, do not go out to your car to “sleep it off.” If you have no other choice, be sure to leave your keys with someone else and do not place yourself behind the wheel. Never move your car at all if you might be under the influence, even within a parking lot.

The public dangers posed by driving under the influence are serious. The Pennsylvania statute is designed to penalize anyone who handles a car when it is not safe to do so.

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Can you be denied unemployment benefits for “willful misconduct”?

Pennsylvania’s unemployment statute provides that employees fired for “willful misconduct” are not eligible for unemployment benefits. Recently, the Pennsylvania Commonwealth Court found that breaking one company rule was enough to constitute “willful misconduct.”

In the case before the court, a truck driver hit a light standard while backing up, causing an undetermined amount of damage to the company truck and over $6,200 in damage to the light standard. The employer had a policy requiring its drivers to walk completely around their trucks before backing up. The fired employee admitted that he did not follow the rule. He acknowledged that he stopped to use a pay phone for business purposes and backed the truck up without walking around it.

The employee argued that his failure to walk around the truck was negligent, but was not willful since he did not make a deliberate decision to break the rule. The court disagreed. Noting that there was no “mistake” in the employee’s conduct, the court focused on the fact that the employee knew of the rule and simply disobeyed it.

According to the unemployment compensation law, employees may be denied benefits only where their conduct amounts to a willful disregard of their employer’s interests, a deliberate violation of work rules, a disregard of standards of behavior which an employer can rightfully expect from employees, or where their conduct constitutes negligence beyond ordinary negligence. This recent case clarifies the fact that when an employee is fired for disregarding a known work rule, the employee may be deemed to have engaged in willful misconduct and may be denied unemployment benefits.

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Can the failure to wear a seat belt be admissible as evidence in automobile accident lawsuits?

Pennsylvania’s current child passenger restraint laws require that any person operating a passenger car, truck, or motor home is obliged to fasten all children under four years of age in an approved child passenger restraint system. Whether the child is in the front or back seat or even in the cargo area, an approved restraint system must be used.

The law also requires that adult occupants in the front seat wear seat belts. Drivers can be fined $35 for failing to safely secure children, and front seat occupants without belts can be similarly fined. However, the statute provides that violation of its requirements is not admissible in evidence in auto accident lawsuits. Thus, if an automobile accident results in a lawsuit, neither party can argue that the other’s failure to wear a seat belt contributed to injuries.

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Can the creation of guardianship by a parent be challenged?

It is wise for parents to name legal and physical guardians of their minor children to serve in the event of their deaths. But the creation of a guardianship by a parent is not always controlling.

Pennsylvania law provides that all custody cases must be decided in the best interests of the child. Anything which can have an effect on the child’s physical, intellectual, moral and spiritual well-being is considered by the court in choosing a custodian or guardian.

A sole surviving parent may name a guardian to take custody of a child upon the parent’s death. But other relatives or adults significantly attached to the child later can challenge the guardianship and seek custody of the child. The court initially will presume that the parent’s choice of guardian is the best choice. However, the court will listen to testimony from challengers and will consider whether others interested in the child’s care might be better custodians. Anyone who challenges a deceased parent’s choice of guardian has a heavy burden to prove that the court should reject the parent’s choice.

Where parents are separated or divorced, and the parent with whom the child resides dies, the surviving parent has custodial rights superior to those of any guardian named by the deceased parent. A natural parent’s custody rights can’t be terminated by the death of the other parent. If the surviving natural parent is incompetent, unfit, missing or unwilling to care for the child, the court can award custody to a guardian named by the deceased parent. Additionally, if a guardian named by the deceased parent has provided essential parenting for the child, he or she may have standing to challenge a competent, interested natural parent’s rights. But the strong rights of the natural parent are very difficult to defeat.

Whether married, separated or divorced, parents should strive to cooperate to identify a mutually acceptable guardian to take custody of their minor children in the event of their deaths. Where separated or divorced parents can’t agree, each must realize that the courts will favor the surviving parent but will consider the claims of involved third parties, especially those identified as preferred custodians by the deceased parent.

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Can the Amish practice dentistry without a license?

The Pennsylvania State Board of Dentistry recently ordered an Amish man to stop practicing dentistry, and fined him the maximum allowable fine of $1,000 for his former conduct.

The Amish man, a farmer with 10 children, regularly performed tooth extractions on people in his Amish community. When proceedings were commenced against him by the Pennsylvania Bureau of Professional and Occupational Affairs, the man responded in writing that many in the Amish community cannot afford dentists. He raised concerns that if he were to stop providing dental services, Amish people would attempt to attend to their dental problems themselves or would simply suffer without his services. He explained that Amish people are forbidden for religious reasons to have health insurance.

The Board ordered the Amish man to cease and desist from the practice of dentistry without a license. Noting that he had no power to prescribe medication to combat infection or pain, the Board expressed serious concern that he was extracting as many as 22 teeth from a single patient in one sitting. Given the risk of serious hemorrhage or infection, the Board found that he did not have the requisite skill to practice dentistry safely. Moreover, he was simply in violation of clear laws regarding the licensing of dentists.

On appeal, the Commonwealth Court rejected the Amish man’s claims that his activities were religious. Instead, the court found that his reasons were essentially economic. While the Amish community forswears health insurance on religious grounds, the court noted that many Amish use the services of licensed medical professionals who are outsiders to their community. The court also ruled that while the costs of services from a licensed dentist may be burdensome to individual Amish, their religious beliefs do not prevent them from going to dentists. Expressing some reservations about the harshness of the fine, the court nevertheless found that the Board acted within its power in imposing the maximum fine allowed by law.

Religious objections to state regulations or laws are narrowly interpreted by the courts. Because there is no outright Amish ban on the use of professional dentists, the court found no real religious rights at issue. It is of some interest that neither the Amish man nor the court drew any distinction between his practicing dentistry in the confines of his community, on people who apparently realized that he was unlicensed, and the more troublesome prospect of an unlicensed dentist practicing at large on the unwary public. Had the Amish community intervened, or had privacy issues been raised, the result in the case might have been different.

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Can separated or divorced parents be required to contribute to the costs of their children’s college or private school?

In the early 1990s, several Pennsylvania courts and the Pennsylvania legislature attempted to require separated or divorced parents to contribute toward their children’s college costs. In 1995, the Pennsylvania Supreme Court held that since child support obligations cease when the recipient child reaches his or her 18th birthday, no extension of additional obligations for college tuition can be imposed on separated or divorced parents.

If you entered into a support or divorce settlement agreement that obliges you to contribute toward your children’s college tuition, the agreement is likely to be enforceable. Private agreements are not affected by the Pennsylvania Supreme Court’s decision.

Divorced or separated parents have a duty to provide for their minor children’s private school education, as long as such an education is a “reasonable” expense. Private school for a minor child is reasonable if it is proven that the child will benefit from such an education and if private schooling is consistent with the family’s standard of living and station in life prior to the parties’ separation.

In a Pennsylvania case, a father was ordered to contribute toward private schooling for his son. After attending public school for several years, the child’s mother transferred him to a private school, assisted initially by a scholarship. When the scholarship money ran out, the mother petitioned for additional child support to defray the private school tuition.

The court found that since the son was a gifted child and was enjoying a markedly better social life in private school, he was benefiting from the change. The court rejected the father’s claims that public school placement was reasonable since the child’s grades in public school were excellent. Instead, the court focused on the social, mental, and physical benefits provided by the private school. The court also noted that a grown child of the marriage had a history of private schooling and private summer camp trips, evidencing that the family’s station in life during the marriage included private school expenses.

If you are entering into a support or divorce settlement agreement, the payment of college and/or private school tuition may be an issue for negotiation. You should not negotiate such an agreement without carefully considering the duration and amount of any tuition obligations. Other issues to resolve include identifying particular schools the child may attend, providing the payor parent with access to the child’s grades and records, specifying the child’s responsibility to pursue loans and/or scholarships, establishing tax credit entitlements, and permitting modification of the agreement in the event of the payor parent’s job loss or disability.

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Can receiving a personal injury settlement increase your child support payments?

A Pennsylvania father who worked as a laborer for a paper company was recently required to increase his child support payments when he settled a personal injury claim.

The father was initially ordered to pay $200 per month toward the support of his 10 year-old daughter. At the time the order was issued, the father was living on his workers’ compensation benefits. His work-related injury was serious, and was further complicated by the malfunction of exercise equipment he was using at a physical therapy facility. The additional injury from the exercise machine led to the need for a complete surgical replacement of his knee. Unable to return to his former employment, the father sued the physical therapy facility and recovered $300,000. The mother promptly petitioned for an increase in child support.

Pennsylvania law provides that child support obligations are mathematically calculated, based on initial considerations of the respective incomes of both parents. The father claimed that the personal injury settlement was not “income” for the purposes of calculating his support obligations. Instead, he claimed it was an asset and that only the interest he earned on the money could be considered income. The father also argued that he did not have all the money, having used some of it to buy two cars and having paid the mother money he owed her as a result of their divorce settlement.
The court divided the settlement proceeds by 12 months and included the entire proceeds paid to the father in his annual income, calculated on a monthly basis. The resultant calculation raised the father’s monthly support obligation from $200 to $1,058.

The court noted that its decision would not be any different if the father received the settlement money in one lump sum or in an annuity payable over a period of time. The court observed that while such settlements are not considered income for tax purposes, the long-standing approach of the court in support matters is to focus on actual, available income and resources, without regard to tax laws.
If you are obliged to pay child support, spousal support, or court-ordered alimony and you anticipate a personal injury settlement, you should be prepared for support or alimony modification litigation. If you are the recipient of support payments, be sure to take prompt action if the payor receives a personal injury settlement.

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Can persons sentenced to life imprisonment be eligible for parole?

In Pennsylvania, persons convicted of premeditated murder must be sentenced to life imprisonment or death. Once sentenced to life imprisonment, they are not eligible for parole, but must serve the entire life sentence unless they secure commutation directly from the Governor.

While sentences short of life imprisonment are subject to parole, prisoners are not eligible for parole until they have fully served their minimum time. All sentences in Pennsylvania are expressed as minimums and maximums, and the minimum sentence cannot be more than one-half the maximum. Thus, commonly reported sentences in Pennsylvania are 5 to 10 years, or 6 to 12 months. Sentencing procedures and laws in some states and for some federal crimes permit of quick or early parole. But in Pennsylvania, the parole rights of convicted criminals are limited, and life means life.

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Can I get a refund of a real estate deposit?

The Pennsylvania Superior Court recently required the sellers to refund most of the potential buyers’ deposit in an aborted real estate transaction, even though the buyers breached the contract of sale and the contract itself provided for forfeiture of the down payment. What happened?

Pedro and Magdalia Matos entered into a written contract to sell their small commercial storefront in Philadelphia to Luis and Antonio Disla. The contract called for prompt settlement and provided that all deposit moneys and other sums advanced by the buyers could be kept by the sellers as liquidated damages if the buyers failed to comply with the contract. The Dislas made an initial down payment of $4,000, followed three weeks later by an advance of an additional $20,000. The total sale price was $40,000. The Dislas backed out of the contract and then sought the return of their $24,000 down payment.

The court ruled that the Matoses were entitled to keep only $4,000 and required that they return $20,000 to the Dislas. The court found that although the contract permitted the retention of all down payment moneys as liquidated damages, Pennsylvania law supports liquidated damages clauses only when such clauses do not “effect a penalty.”

The court reviewed the contract, the intentions of the parties, the property, and its price. Noting that it had previously upheld forfeitures of liquidated damages amounting to 10% of contract prices, the court declined to uphold the sellers’ retention of a 60% deposit in this case. While the Matoses’ contract contained a liquidated damages clause, the clause itself did not identify the amounts of the down payments, nor did it give any specific reason why a forfeiture of 60% of the purchase price was fair or agreed upon by the parties.

Liquidated damages awards are carefully reviewed by the courts. When liquidated damages effect a penalty, they are not enforceable. If you are a party to a real estate contract involving substantial down payments, you should pay particular attention to the clarity of the forfeiture clause.

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