Category Archives: Asked and Answered

Can a waiver protect my business from liability when my patron’s get hurt?

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I received this question:

Is it possible to be completely protected from all liability?  Such as a ski resort asking patrons to sign a liability waiver?

 Yes, purchase an insurance policy.  Have a long conversation with a business insurance representative about your concerns. This rep should be able to pinpoint your risk, help you mitigate some risks, and craft a policy that covers the remaining risks.   Buy as much insurance as you can afford. 

 

A contractual waiver will not protect you from claims of negligence (which are accidents), in Pennsylvania.  So, the best methods to protect you from liability are an insurance claim and maintaining your business as a separate, and distinct entity from your personal assets.

 

I also recommend joining your industry’s association.  For example, you mentioned skiing.  Join the National Ski Areas Association.  The association will publish a suggested policy or model standard operating procedures.  Adopt those procedures are your business’ standard operating procedures.  For example, I found the Canada Ski Areas Association published in 2007, a list of best practices.

http://www.worksafebc.com/publications/health_and_safety/by_topic/assets/pdf/BestPracticesIndustryRecommendedSkiHills.pdf  If you follow the industry-recommended best practices, it will be hard to prove in court that you should have taken additional steps to prevent accidents.

 

Good luck.

They stopped paying so can I pick up my items now?

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This is the question:

I live in PA. and I have entered into a contract with another party. I retain ownership of a piece of equipment as it is in my name. The equipment is in physical possession of the other party in the contract. We have each signed a legal contract stating that the other party will pay stated amount of money by a certain date every month. However there was nothing put into the contract regarding what would happen if the party failed to pay either the amount agreed upon or the due date to be paid. My question is this, because the equipment is still in my name do I have the right to go and remove the said equipment because the othewr party has breached the contract.

This is my answer:

Unfortunately, no, you cannot enter someone else’s property and remove any property without his/her permission.  To recover the property, you need to file a lawsuit for breach of contact, and repossession of the property.  Because your contract does not specify what happens when one party fails to pay as promised, case law tells us what to do.  In this case, you are entitled to money damages equal to the entire contract or you can recover the equipment. If you contract allows you to recover attorney and court fees, you can add this figure to your damages. Once you have a judgment, then you must file a Writ of Execution to recover the equipment. Depending on your county, you will need to hire the Sheriff to visit the property to recover the equipment. I recommend talking to a lawyer before you act; otherwise you may be liable for trespass.

How to stop a sheriffs sale of home

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I received this question by email:

How do I stop a sheriff sale of my home?

This is my answer:

Go to court and file a Motion to Stay Sheriff Sale. Call the court’s clerk and she/he can help you file the necessary paperwork.  You want to file the motion as an emergency. Of course, the judge is going to ask you why do you want to stop the sale. You should have a good explanation about how you intend to pay the past-due mortgage payments.  You may want to contact the lender, and work out a loan modification.  You should also talk to a lawyer to determine whether bankruptcy is a good option for you. On the other hand, if you really can’t afford the mortgage, then you should consider selling the property.

Good luck.

 

 

 

Q: I bought a used car but the car doesn’t work. What can I do?

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I bought a used car from a dealership.  I negotiated over the phone, but did not inspect the car prior to purchasing it. I mailed the dealership a check. They delivered the car.  When the car arrived, it had more damage than the salesperson stated.  In addition, when I tried to start the car, it did not work.  I contacted the dealership.  They want me to buy a newer car and pay $10,000 more than what I already paid.  What are my options?

 

This is my answer:

You have many options.  It appears to me that you have a breach of contract claim and possibly a violation of the Pennsylvania Unfair Trade Practice Act. You can try to contact the dealership’s consumer relations department or their general manager.  If that doesn’t work you can contact the Pennsylvania Attorney General. File a complaint online. If that is not successful, then contact an attorney.  A letter from your attorney may be sufficient to resolve the matter. If not, then prepare to sue them in court.  If you are successful in proving that the dealership violated the Unfair Trade Practices act, then you may be entitled to an additional amount equal to triple your damages. 

Good luck.

Do I have to pay my employees for their time while they are on-call?

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It depends on the circumstances of your situation. Basically, the more control that you, as the employer, maintain over the employee while on-call, the more likely you will have to pay his/her wage for that time. For example, if you require the employee to remain within a certain number of miles of the workplace, then the law is likely to require that you compensate the employee. However, if the employee must merely leave a number where the office can contact him/her while on-call, then the law probably will not require you to compensate the employee.

As a note, whether you must pay your employee while on-call is governed by the Federal Labor Standards Act and the Pennsylvania Wage Payment and Collection Law.

　

Do you have a question about employment law? Call us for your free consultation at 215-242-5260.

Sharmil McKee | Business Lawyer | sm@mckeeoffice.com | Philadelphia

How to become an attorney in 1902

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Paul Burgoyne, Deputy Chief Counsel of the Office of Disciplinary Counsel, passed on to us the following description of the requirements an applicant to the Pennsylvania Bar in 1902 had to meet:

No person shall be registered as a student at law for the purpose of becoming entitled to admission to the Bar of the Supreme Court until he shall have satisfied the State Board of Law Examiners that he is of good moral character, and shall have passed a preliminary examination upon the following subjects: (1) English language and literature; (2) Outlines of universal history; (3) History of England and of the United States; (4) Arithmetic, algebra through quadratics, and plane geometry; (5) Modern geography; (6) The first four books of Caesar’s Commentaries, the first six books of the Aeneid, and the first four orations of Cicero against Cataline.[4]

All of a sudden the Multistate doesn’t look quite as daunting.

This is an article from the August 2010 edition of Attorney e-Newsletter published by the Discipline Board of the Pennsylvania Supreme Court. Click here to read more.

Corporate Formalities: do I need a resolution for that?

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I found this question on one of the community boards that I watch.
 

I have a newly formed corporation. I’m putting everything together for our first meeting, and I have found several examples of resolutions to adopt for the issuance of stock. Do I also have to have a separate resolution to create the shares?

Yes, in Pennsylvania, you will need a resolution to issue shares. A corporation is a separate entity. In order for it to act or “do” anything, its shareholders, officers, or directors must execute a resolution. A resolution is a document that memorializes the outcome of your shareholders‘, officers’ or directors’ votes. For example, before a corporation can issue shares, its shareholders must vote and agree to issue shares. If the shareholders vote in favor of issuing shares, then the secretary drafts the resolution, and the voting shareholders sign it.

In Pennsylvania, the directors can agree to waive a meeting and vote by paper, in an informal manner. So every resolution does not require a meeting. In addition, Pennsylvania law does not require an in-person meeting; the law also permit’s shareholders, officers, and directors to meet by telephone. As you can guess, if the directors agree to waive a meeting or meet by telephone, then this agreement must be memorialized by resolution.

Your first incorporation meeting will cover many issues:

  • -adopting your pre-incorporation activities
  • -adopting the by-laws
  • -adopting your office lease
  • -appointing officers
  • -adopting your shareholder agreement
  • -empowering the officers to elect s-corporation status for tax reporting;

These are only a few of the issues that you will discuss and vote on during your first meeting.

After your resolutions are executed, store them in your business minute book, where you store your by-laws and articles of incorporation. These documents are the only proof that your corporation is a legal entity and is a shield protecting you from personal liability.

Do you have a legal question? Send your question to us at http://wp.me/PN9wo-gz 

Good luck.

Sharmil McKee | Business Attorney | Philadelphia

Noncompete Agreements and Termination: Can my employer do that?

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I received this question by email:  I was terminated by my job, however, when I was hired, I signed a noncompete agreement.  Is it valid now that they fired me? 
 
This is my answer:  I have a typical lawyer answer…it depends.  What does it depend on?  Mainly, the language of the agreement and the circumstances of your hiring.  Most noncompete contracts state that your promise to not to compete with your employer survives termination, or remains in effect after your termination.  However, a court will only enforce this noncompete if it has a reseasonable time-limit and geographic-limit.  Also, a noncompete is only enforceable, if you signed it when you accepted the position with the employer. So, to answer your question completely, I would need to actually read your agreement.  My best advice is to contact a lawyer who is familar with business law.  If you want to receive a basic understanding about noncompete agreements in Pennsylvania, the internet offers many free legal research web-sites.  Check out:
 
 
 
 
Know that contract law is governed by state law.  So, be sure that any material you are reading, specifically discusses Pennsylvania law. Visit my website for basic information about contract law in Pennsylvania – http://www.mckeeoffice.com/contracts.html
 
Feel free to contact my office anytime. 
Do you have a legal question? Send your question to us at http://wp.me/PN9wo-gz 
Good luck.
 
Sharmil McKee  |  Business Lawyer  | blog@mckeeoffice.com

How to collect a past-due debt from a client

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I received this question by email: 

A business owes my business money for products that we sold.  How do we collect our money and how do we find out if the business is closing? 

This is my answer:  You have a couple of avenues to collect a past-due debt.  You can try letters, phone calls, emails.  You can hire an outside agency to collect on your behalf.  You can sell the debt to another agency.  You can hire an attorney to collect on your behalf.  You can report the debt to the three credit reporting agencies (there is a fee involved).  You can always sue them in court.  Once you have a judgment, you have more options to collect your judgment such as seizing bank accounts and assets.  In addition, judgments are reported to credit reporting agencies for free.  Finally, if the judgment is large enough, the law permits you to force your client into bankruptcy.  

The best way to determine if a business is closing is to search the bankruptcy filings.  You can search all federal dockets through PACER (Register here http://pacer.psc.uscourts.gov/).  In addition, you can search the Department of State‘s business register.  All businesses (except solo proprietors) are required to register with the Department of State prior to conducting any business in the state.  Those same businesses are required to notify the state if they are dissolving.  (Visit http://dos.state.pa.us to search the business filings.) 

If the business is a corporation, it is required to run a public notice in the newspaper that it is dissolving. Most newspapers offer an online version of its public notices.  The newspapers in Pennsylvania have reportedly collaborated to form http://pa.mypublicnotices.com  You can search this site for any public notices about your client.

Do you have a legal question? Send your question to us at http://wp.me/PN9wo-gz 

Good luck.

Sharmil McKee |  Business Lawyer | blog@mckeeoffice.com