Category: Uncategorized

You know that your business is “life sustaining” – and entitled to remain open despite the “stay at home” order which now restricts business in all of Pennsylvania – because you checked the latest version of the order at (https://www.governor.pa.gov/wp-content/uploads/2020/04/20200401-GOV-Statewide-Stay-at-Home-Order.pdf)
(The list of such businesses – already updated several times – is online at https://assets.documentcloud.org/documents/6816337/452553026-UPDATED-Industry-Operation-Guidance.pdf. Pennsylvania’s general guidelines are at https://www.pa.gov/guides/responding-to-covid-19/.)

However, the state trooper who sees your employees driving to work probably doesn’t know all those details, and may pull them over.

Although your employees may trust your instruction that they can drive to work safely, can they explain why to a uniformed officer under the pressure of a traffic stop?
So a citation on the way to work may seem inevitable if a trooper sees an employee driving to work – unless, of course, the employee can provide a brief, clear explanation of why the employee can still commute, when most people (including the author of this memo) can’t do so.

On the first day of enforcement of the stay at home order, a client pleaded for help after several of its employees had been detained in a rural county on their way to work.

After investigating the newly adopted rules, however, we recommended that our client’s employees carry a portable, one page explanation of why its employees were allowed to work and commute, complete with citations to the list of permitted businesses.

We also recommend our client’s suggestion, that its commuting employees carry a pay stub or other proof of employment by its essential business.

(However, you should not assume that the rules our client’s employees faced under Pennsylvania’s stringent rules are what your employees may face in your own location.  In addition to checking your local guidelines, the Department of Homeland Security lists “essential critical infrastructure” firms in its Guidance on the “Essential Critical Infrastructure Workforce” at https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce#.)
If your business is eligible to remain open during a stay at home order, we can assist you in preparing a letter which may be helpful in avoiding a citation should your employees be stopped while commuting.

Our employment and business law attorneys listed below can help you navigate these issues.

We hope that you and your business weather the COVID-19 storm.

Please contact Nancy Abrams or Jennifer Chalal for employment matters, or Peter Cripps, Joseph Devine or Stanley Jaskiewicz for business matters:

Nancy Abrams 215-241-8894 nabrams@sgrvlaw.com
Jennifer Chalal 215-241-8817 jmyers@sgrvlaw.com
Peter Cripps 215-241-8884 pcripps@sgrvlaw.com
Joseph Devine 215-825-8942 jdevine@sgrvlaw.com
Stanley Jaskiewicz 215-241-8866 sjaskiewicz@sgrvlaw.com

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A Philadelphia Court of Common Pleas jury has granted a unanimous defense verdict in favor of an Elkins Park, Pa. senior care facility in a claim by the family of a deceased female resident over her care and treatment.

Spector Gadon Rosen Vinci P.C. (SGRV) attorneys Brooke C. Madonna and Stephanie V. Shreibman won the unanimous defense verdict on behalf of defendant Oak Health & Rehabilitation Center, Inc. and Oak HRC Elkins Crest, LLC d/b/a Elkins Crest Health & Rehabilitation Center.  The case was tried before the Honorable Ann M. Butchart of the Court of Common Pleas of Philadelphia County.

The case involved an elderly woman with medical issues including dementia who was a resident at Elkins Crest for a year and three months.  The plaintiff alleged, inter alia, that the nursing home failed to follow a doctor’s order requiring that the resident be fed all meals by the nursing staff, causing her to drastically lose a large amount of weight and putting her at risk to develop pressure ulcers.

The resident developed a Stage IV pressure wound on her sacrum while at the hospital, also a defendant, that never healed and allegedly contributed to her eventual death.  Madonna and Shreibman successfully argued a motion in limine to prevent the plaintiff from alleging death related to the care and treatment at Elkins Crest, so only the survival claim went to the jury.  The Court also allowed a charge of punitive damages to go to the jury against Elkins Crest.  Madonna and Shreibman were able to secure a unanimous defense verdict.

Spector Gadon Rosen Vinci P.C. has represented clients nationally and internationally for 45 years and provides counsel and expertise across the entire spectrum of legal practice, from complex litigation to sophisticated transactional and corporate matters.  The firm has offices in Philadelphia, New Jersey, Florida, New York and Atlanta.

The firm represents businesses, corporate boards, and highly placed individuals.  Its clients are engaged in a variety of industries including finance and banking, manufacturing, hospitality, gaming and entertainment, real estate and commercial development, insurance and venture capital, energy, financial services, health care, security and telecommunications.

The firm’s practice areas include high stakes litigation, business disputes, commercial litigation, professional liability, products liability, securities, trust and estates, fiduciary litigation, bankruptcy and creditors rights, civil RICO, trade secrets, trademark and restrictive covenants, intellectual property, antitrust, white-collar criminal defense, banking and financial services, corporate formation and governance, cyber risk and security, employment, entertainment and amusements, environment and energy, wealth management, healthcare, hospitality, insurance coverage and insured casualty litigation, mergers, acquisitions and divestitures, real estate, sports and tax law.

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Michael J. McGirney, a Member of Spector Gadon Rosen Vinci P.C.’s Litigation Practice Group, will discuss “Introduction to Insurance Agent of Broker Claims” for The CLM at Kemper Insurance on June 6th in Plantation, FL.

The CLM, a member of The Institutes, is dedicated to meeting the professional development needs of the claims and litigation management industries. They organize many networking events, continuing education programs, and a wide variety of industry resources including the Annual Conference, Claims College, and Litigation Management Institute.

McGirney concentrates his practice in complex litigation with an emphasis on the defense professionals. He has been certified by the state of Florida on mediator ethics and he has served as an instructor on mediator ethics and liability throughout the state of Florida. He has served as a mediator, arbitrator and as a consulting and testifying expert witness in insurance claim matters, bad faith matters, legal malpractice litigation and ethics issues.

Spector Gadon Rosen Vinci P.C. represents business and commercial law clients nationally and internationally, serving entities, corporate boards and highly placed individuals engaged in multifaceted industries (including finance and banking, manufacturing, hospitality, gaming and entertainment, real estate and commercial development, insurance and venture capital) through a cadre of dedicated and highly skilled lawyers with a reputation for using unique strategies, and a proven success record with tough cases.  The firm’s practice groups include banking and financial services, bankruptcy and creditor rights, commercial litigation, corporate formation and governance, cyber risk and security, employment, entertainment and amusements, environment and energy, estates, trust and wealth management, healthcare, hospitality, insurance coverage and insured casualty litigation, mergers, acquisitions and divestitures, professional liability, real estate, securities and sports, and tax law.

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Family Limited Partnerships (“FLP”) have been a great estate planning tool for many years. FLP’s can enable a family to shift significant assets and income to children or grandchildren at a very high discount. The discount can range from 25% to 50% depending upon the type of assets in the partnership. Therefore, it should come as no surprise that the IRS dislikes FLPs and sometimes examines very carefully the valuations used for gifts and in estates.

When the IRS finds an FLP that looks abusive, it will do its best to attack the tax planning used by the family. The IRS found such a partnership in Holliday V. Comm’r, a 2016 tax court case. In the Holliday case, the IRS was successful in bringing the entire partnership back into a parent’s taxable estate as if the FLP did not exist. In Holliday, this meant that the decedent’s 89.9% interest in the FLP was ignored and she was treated as owning 100% of the FLP at her death. Also, the 40% discount the estate took on the value of the FLP on her estate tax return was eliminated. Instead 100% of the value of the FLP’s assets were subject to federal estate tax.

Some of the mistakes this family made were (i) the formation of the FLP, funding of the FLP, the transfer of the general partner interests to the decedent’s children and the gifts of limited partnership interests were all made on the same day, (ii) the partners never held partners’ meetings, (iii) the general partner was not paid for managing the FLP, (iv) the FLP made only one distribution instead of regular annual distributions, (v) the court could find no “non -tax reason” for the FLP, (vi) the court was convinced there was a deal to hold the money in the FLP for the parent just in case she needed it during her lifetime and (vii) the FLP was formed by the son using a power of attorney after his mother (the decedent) went into a nursing home. This combination of bad facts resulted in a FLP being disregarded and brought back in the parent’s estate when she died.

What to do if you have a FLP and want to preserve the value for your family? The following is a partial list: (i) have annual meetings of the partners, (ii) pay some modest compensation to the general partner, (iii) make annual distributions to all of the partners, (iv) wait at least 6 months after formation of the FLP to transfer any portion of the parent’s interest to children or trusts and (v) don’t wait until the parent is in a nursing home. And just because you made gifts of FLP interests and filed a gift tax return, you still need to follow these guidelines. Otherwise there is a risk of the FLP being brought back into one’s taxable estate and the loss of substantial discounts on the assets. It is an excellent idea to have an annual checkup of your FLP to see how it complies with the tests that the IRS now is using to evaluate FLPs. Please give us a call to review your FLP or to help you take advantage of a fine estate planning tool when used right.

Please feel free to contact Alan Mittelman 215-241-8912 or amitt@lawsgr.com if you have any questions.

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