In Pennsylvania, the paramount concern in a child custody proceeding is the best interest of the child. In determining the best interest of the child, courts engage in a comprehensive analysis of the factors outlined in 23 Pa.C.S.A. § 5328.  Pennsylvania Health and Safety Statute §10231.2013 states that the use of medical marijuana in accordance with state laws is not a consideration by itself in a custody case. The custody laws have not been amended to address the issue or make similar limitations regarding the use of medical marijuana by a parent.

On December 18, 2019, however, the Superior Court of Pennsylvania issued an opinion affirming an April 5, 2019 Schuylkill County Court of Common Pleas decision limiting self-represented Father’s contact with son, age 10, to periods of supervised physical custody. The case involves a child born in May of 2009 to Mother and Father, both who have struggled with substance abuse. The court noted that Father’s recreational use of marijuana has been a recurring issue throughout the custody litigation. Father obtained a medical marijuana license when the parties were living in Georgia. At the time of the hearing, the child’s maternal grandparents had primary physical custody of the child. The trial court had awarded maternal grandparents primary physical custody of the child adding a provision that conditionally extinguished Father’s supervised custodial time “upon Father’s willingness to demonstrate sobriety and continued abstinence.”

Father argued that in light of his license to use medical marijuana as a mechanism to manage his wrist pain, the trial court should not weigh the fact of his medical use against him. The trial court rejected Father’s argument and reinstated the prior custody arrangement and the hair-follicle-testing condition. The trial court reasoned that it is unknown to the Court what effect, if any, Father’s alleged medical condition and use of marijuana, whether prescribed or used recreationally, may have on his ability to care for a child. Father appealed, and the Pennsylvania Superior Court affirmed the trial court’s decision.

The Superior Court noted that the Medical Marijuana Act prohibits the fact-finder from penalizing a parent simply for using medical marijuana. However, in the instant case, the trial court concluded after a consideration of all of the best-interest factors and the evidence presented, that it was not in the child’s best interests to expand Father’s supervised partial custody to unsupervised overnight custody without requiring Father to continue to submit to the previously-ordered drug screening regimen. The Medical Marijuana Act does not preclude the court from making relevant findings concerning effective marijuana use, medical or recreational, on parent’s ability to care for a child. The Superior Court noted that the fact finder should consider not only the parent’s history of drug and alcohol use, but also the parent’s mental health and physical condition that might require the parent to rely on prescribed medication to subdue that pain. The Court concluded that a parent’s history of drug and alcohol abuse, including a parent’s legal use of any substance, should be considered in determining the child’s best interest.

On January 1, 2020, a new change to Pennsylvania’s Inheritance Tax Law became effective for decedents who pass away as of that date and leave assets to children under the age of twenty-one (21). Under the new law, inheritances from parents to children under the age of 21 will now be taxed at a zero percent rate, effectively passing inheritance tax-free.

Pennsylvania is one of six states that assesses an inheritance tax on the transfer of assets from a decedent to his or her heirs. Pennsylvania’s Inheritance Tax is applied to a decedent’s probate and nonprobate property, including real property based in Pennsylvania, cash accounts, IRAs, 401ks, and joint property. Out of state real property and life insurance proceeds are exempt from Pennsylvania Inheritance Tax.

The rate of Inheritance Tax depends on the relationship between the decedent and the recipient of the property. Under Pennsylvania’s prior Inheritance Tax law, transfers to all descendants, including children, stepchildren, and grandchildren, were taxed at a 4.5% rate. Now, with the new Inheritance Tax law becoming effective, transfers from a parent or stepparent to a child (including an adoptive child) or stepchild who is under the age of 21 on the date of the parent or stepparent’s death will be taxed at a zero percent rate. It is important to note that this new law only applies to transfers from a parent or stepparent to a child under the age of 21; transfers to all other descendants (including from grandparents to grandchildren under the age of 21) will continue to be taxed at the 4.5% rate.

As for other Inheritance Tax rates, they remain unchanged, so: transfers from a decedent to his or her surviving spouse are taxed at a zero percent rate, while transfers to siblings are taxed at 12%. Transfers to all other individuals are taxed at a rate of 15%. Finally, any distributions left to a charity are exempt from Pennsylvania Inheritance Tax.

The holiday season can be a stressful time of the year, especially for children whose parents have recently separated or have a tense custody arrangement.  I often remind my clients to keep in mind that the children have not asked to be put in this position, and parents should do all they can to ensure a happy and stress-free holiday for their children. After all, the children should be the focus in the holiday season.  Here are some tips to help reduce tensions for your children over the  holiday season . 

1. Make it clear to your children that you are genuinely happy for them to spend time with the other parent.

2. Help them make cards and gifts or take them out to buy something for the other parent.  It doesn’t have to be extravagant, but this small gesture will go a long way in bringing happiness to your children, and hopefully foster more civility with their other parent. The children will be excited that they have a gift to give,  and hopefully the other parent will reciprocate in the future.

3. If your children are having fun at the other parent’s house, spending time with family they haven’t seen in some time, and want extra time with that family, consider allowing them to spend a little extra time before you pick them up, especially if your plans are flexible. 

4. Don’t cancel Christmas or Hanukkah. Some parents decide that because they are not going to have their children at a specific time on the holiday, they are not going to celebrate this year. The only ones hurt with this approach are your children, who – after all -  did  not ask to be subject to a custody order. Make it clear to your children that you were excited to celebrate with them, and that you will be celebrating when they are back at your house. That will also give them peace of mind to enjoy the holiday more when they are with the other parent free of guilt and worry that you are sitting home alone and sad since they are not there with you.

5. Make sure you look at the custody order in advance. If you have any questions make sure to have those questions answered by your attorney or resolved in a discussion with the other parent well in advance to avoid disputes on  the eve of the holiday .

If your children see that you are happy to celebrate the holiday, no matter what the schedule is, that will allow them to more fully enjoy the holiday as well.

Wish you and your family a very happy holiday season.

As a business lawyer, I have spent years counseling small to mid-sized companies across a wide range of industries.  I have advised clients on routine to complex business legal issues that arise during the start-up stage through operation and growth stages, and have structured many exit strategies and created successful succession plans in various ownership documents.  What I love best about providing sound legal guidance to business owners through the life cycle of their business is helping them solve issues that arise both from a legal perspective and also from a financial perspective.  Helping clients navigate through contractual, employment, finance, IP protection, and other daily issues so they can focus on achieving their goals of growth, maximization of profits, and sustainability, all while minimizing their potential for risk and exposure is a vital objective in my practice. 

I have recently been invited to participate for the next several weeks as an advisor in an exciting new local event – The Spark Bowl.  Co-sponsored by Delaware Valley University, it’s Small Business and Entrepreneurship Center and the Central Bucks Chamber of Commerce, this event is a local competition aimed at fostering innovation, growth, and entrepreneurship.   At the First Annual Spark Bowl event to be held on December 11th, students and local entrepreneurs in and around Bucks County will “pitch” their businesses plans to Spark’s judges, who will select a winner who will receive prizes and benefits to include monetary funding as well as access to expert advisors.  The contest will be judged by experienced investors who have a desire to support innovation and economic growth and prosperity within the local community.  As part of DelVal’s experiential learning program, DVU student teams will work with final contestants to prepare for the competition under the guidance of DelVal faculty and SBEC advisors.  Professor William Viel of DVU’s Business and Information Management Department is the Director of the SBEC.  It is quite a valuable resource to this community to have such an incubator right here in Central Bucks. Please click here to learn more about The Spark Bowl at Delaware Valley University.

After many years of working with business owners, some who were successful, and some who were not, it seems evident that the best predicator of sustainable business growth and success is: planning by asking the right questions up-front; creating detailed business plans and product or service models; determining the expected demand for their product or service in a low or highly competitive market; understanding both traditional and non-traditional financing alternatives; putting together the right team of professionals to help them produce, deliver and promote their business and its products/services; dealing with operational challenges and various levels of legal compliance properly, all while being willing to assess weaknesses and promote strengths.

The Spark Bowl has inspired me to remind my clients to think about why they are doing what they are doing, as they work through the day-to-day challenges (legal and otherwise) of operating and sustaining a business they built and love.

Good Luck to all the participants on December 11th!     

Many an article or blog post concerns minority shareholder rights, shareholder oppression or shareholder “freeze out”.  As business and litigation lawyers, we are always mindful of the rights between and among business owners, what can and cannot be done in furtherance of those rights and the legal mechanisms applicable to the exercise of those rights.  We frequently write on the strategies available to a minority shareholder such as examination of books and records, claims of breach of fiduciary duty and the potential for appointment of a corporate receiver or custodian. 

This is not that article. 

The fact is, being a minority shareholder means that, by definition, there are often things you simply cannot control.  A shareholder or member in a business entity who possesses less than a controlling stake must have reasonable expectations as to the rights attendant to such ownership and understand the limits of such rights so as to make informed decisions concerning the investment of time, energy and money in pursuit of the collective enterprise.    

Let’s start with who owns the remaining shares in the company.  In the absence of an agreement to the contrary, the majority shareholder is free to transfer the majority (said another way; controlling) interest in the company without the consent of the minority.  A transaction can result in a change in control such that the minority shareholder suddenly works for someone entirely new.  While a minority shareholder can enjoy “dissenter’s rights”, such rights are applicable in very narrow situations specified by statute.   In fact, in the absence of a prohibition, the stock in a business entity is readily transferrable, just like on an exchange, if a buyer and/or seller can be identified.

Internally, a minority shareholder can find it difficult to impact the direction of the business.  Depending on the by-laws of the entity and, frankly, the will of the majority, a minority shareholder may or may not have a voice on the board of directors and thus may not possess a vote on material decisions such as the persons who will fulfill critical roles in the executive branch of the business such as the officers of the corporation. More importantly, a minority shareholder may not have input on the financial operations of the company including distributions, financing arrangements, major purchases of inventory, equipment or talent.  All of which can dramatically affect the annual bottom line.

Even employment is not guaranteed to a minority in interest.  In the absence of an agreement to the contrary, the employment of a minority shareholder may simply be at will in the same way as the sales force, the administrative assistants or the custodian.  Certainly, terminating a minority’s employment could be one of the factors argued in a freeze out, but in the absence of other factors, termination of employment alone may not give rise to a cause of action.  Certain courts have suggested continued employment may be implicit in a “founder” but those situations are few and far between and a plaintiff/minority shareholder must be prepared with more to argue than the end of employment if freeze out is alleged. 

In business, like politics, being in the minority means sometimes you are powerless to immediately change the course of the company.  Sometimes, a group of shareholders can band together to pool their collective influence for their mutual benefit.  Other times, the best strategy is to become the majority even when the acquisition of additional shares comes at an unnecessary or unanticipated cost.  Under any circumstances, rights afforded to the majority are not constrained solely because a minority shareholder does not agree with a particular course of action.  

As a litigator, I am often contacted by minority shareholders who are frustrated by their lack of control or influence.  While the law offers certain protection for holders of such minority interests, those remedies are factually limited and are often unsatisfactory even if granted in full after significant expense in litigation.  Certainly an appropriate agreement outlining the respective rights and obligations can change the analysis.  Business owners should consider, and plan for, what rights their stake in the company provides.          

This is the fourth installment of my continuing blog series explaining the main elements of a contract, which are outlined on the attached infographic . My goal is to demystify some of these basic provisions to help business owners have a better general understanding of what they are signing.

This article discusses representations, warranties, and covenants, which are the “bones” of the parties’ agreement. These provisions represent the statements of the underlying facts, mutual assurances, and promises of performance which form the basis of the parties’ mutual understanding. It’s not uncommon to find these concepts used interchangeably in a contract – “ABC represents, warrants, and covenants…”, but the meaning and effect of each of these are quite distinct from one another. It’s important to understand these distinctions so that your contracts accurately reflect the assumptions, obligations, and risks that you are comfortable with.

A representation is a statement of past or present fact (either express or implied) made by one party to induce the other party to enter into the agreement. For example, the seller of a business might represent that gross revenues from the business were a certain dollar amount for the past several years or that there are no claims asserted against the business. If a representation proves to have been untrue when made, the injured party will have a claim of fraudulent misrepresentation if she can prove that: (i) the party making the representation knew or should have known the statement was false when made; (ii) the other party intended the injured party to rely on the statement; and (iii) the injured party’s reliance on the statement in entering into the agreement was justifiable. The injured party can seek monetary damages for its losses or it may ask the court to rescind (void) the entire contract. It is therefore very important to avoid “over-representing” in your contracts.

A warranty is essentially a promise that an assertion made by a party is true, coupled with an implied promise of indemnity if the assertion made by the party is false. As such, a warranty is both present-focused, like a representation, and forward-looking, like a covenant. If a warranty is breached, the injured party is entitled to be made whole; this usually means that the injured party can recover the difference between the value of the contract as agreed upon and the value of the contract in light of the breach. In other words, the injured party is entitled to receive the benefit of the bargain he initially made. The injured party is not required to demonstrate that he relied on the warranty or that the other party knew that the warranty was false when made.

Often, but not always, representations and warranties go hand-in-hand to allow the parties to preserve remedies that are as broad as possible. In complex agreements, the parties usually spend a significant amount of time negotiating how the risks embodied by representations and warranties should be allocated by qualifying and limiting these concepts (e.g., a representation is true to the best of the maker’s knowledge and/or in all material respects).

Product and service warranties are specialized contractual provisions that are actually hybrids of representations, warranties, and covenants. These provisions commonly create limited express warranties that apply to the products or services, identify specific contractual remedies for breach, and disclaim implied warranties that are provided by law.

A covenant is a party’s promise to perform an action or to refrain from performing an action. It relates to the future, as opposed to representations, which are provided as of a specific date. An example of a covenant is a borrower’s promise to make loan payments in accordance with the terms of a promissory note. Covenants can be express or implied. Pennsylvania law imposes an implied covenant of good faith and fair dealing in most contracts.

Stay tuned for Part 5 of this series, which will move on to discuss some possible hidden perils of what is commonly dismissed as “just boilerplate” language.