Bicyclists at Risk

Bicyclists Can Be At Risk On Bucks County Roads

Bicycling the roads of Bucks County is a popular way to see the local sites and stay fit at the same time. Though bicycling is excellent exercise and a great way to experience Bucks County, our narrow roads are often poorly maintained and at times heavy with traffic. It should come as no surprise that an afternoon ride can become a dangerous activity.

  • In August 2015, a Washington Crossing resident was arrested after an accident that left a bicyclist riding on scenic River Road seriously injured, reports the Intelligencer.
  • A bicyclist was injured in an accident in Yardley borough in May. The driver of the truck that hit him was arrested for drunk driving, according to Bucks Local News.
  • In 2014, an accident left a 73 year old bicyclist dead in Yardley. He was riding on North Delaware Avenue when he was hit by a car, reports the Courier Times.

Nationwide the federal Centers for Disease Control and Prevention (CDC) estimates,

  • Over 900 bicyclists were killed, and bicycle related injuries resulted in about 494,000 emergency department visits in 2013.
  • Fatal and non-fatal accident bicycling injuries occurring in 2010 resulted in lifetime medical costs and productivity losses of $10 billion.

The CDC states those aged 15 to 29 and 45 years and older have the highest bicycle fatality rates with males being far more likely to be killed or injured on bicycles than are females. Head injuries occur in 22% to 47% of injured bicyclists and are most often caused by collisions with motor vehicles, according to an article published in American Family Physician. These head injuries account for more than 60% of bicycle-related deaths and most bicycle-related long-term disabilities.

In Pennsylvania, bicyclists have as much a right to use the roads (but not highways) as cars or trucks. Under Pennsylvania law, drivers are required to keep a four foot distance between their vehicles and a bicyclist and are allowed go into an oncoming lane (if it’s safe) in order to provide that distance and pass in areas where passing is otherwise not allowed. However, the best advice for cyclists is to take as many safety precautions as possible. Where available, cyclists should ride bike paths and trails and avoid heavily traveled roads.  Cyclists should always wear helmets and make themselves visible to drivers with lights and/or bright clothing.

While bicycling offers many benefits to riders, an accident can not only put a premature end to what should have been a great day of riding but can result in serious injuries and lifelong disabilities. If you or a loved one are injured in a bicycle accident, contact our office as soon as possible for the legal help you’ll need to recover for your injuries.

A Primer On Unemployment Claims For Employees

You lost your job and your employer has threatened to fight your claim for unemployment benefits.  Now what?  Losing your job is bad enough without the added uncertainty of being denied the limited income unemployment compensation provides.  Knowing your rights and the process to follow will help you collect.

Filing Your Claim

Today, most claims begin online.  Visit www.uc.pa.gov for initial claim filing instructions and for biweekly filing thereafter.  Be sure to answer the online questionnaire truthfully and completely.  Intentionally false or misleading answers may not only result in termination of benefits, but may result in action to recover benefits already paid and penalties.

Notice of Financial Determination

After filing a claim, you will receive a Notice of Financial Determination which reflects how much your employer(s) reported you earned during your “base year.”  A “base year” is the first four quarters of the last five full quarters prior to the application for benefits.  For example, if you filed your claim on May 1, 2015, your base year would be from January 1, 2014, through December 31, 2014.  Even though May 1st is in the second quarter of 2015, it is not a full quarter.

It is very important to review your Notice of Financial Determination carefully to compare the income your employers reported to what you believe you earned.  If your employers underreported your wages, it may affect the amount of benefits you receive.  An employee must earn sufficient wages and credit weeks during the base year in order to be eligible for unemployment benefits.  If you believe the Notice of Determination is not accurate, you must file an appeal by the date on the Notice. Failing to appeal in a timely manner may cost you your right to contest the reported earnings and financial eligibility for unemployment benefits.

Notice of Determination

Even if you are financially eligible for benefits, your benefits may be denied for other reasons.  At the time you file your claim, the employer is also notified and given an opportunity to submit information regarding the circumstances of your separation. After reviewing your claim and the employer’s response, the unemployment service center will mail an initial Notice of Determination to both parties.  The Notice of Determination will state whether benefits have been granted or denied and the reasons for the determination.

In general, there are only two reasons why you can be denied unemployment benefits:  (1) you quit, or (2) you engaged in willful misconduct.  If you quit, you had better have a darn good reason for doing so if you expect to receive benefits.  The law sets the bar high for the employee and requires “necessitous and compelling” circumstances to justify quitting.  These may include your employer’s failure to pay you in a timely manner, a significant change in work hours or other working conditions, or a spouse’s job relocation.  Employer or co-worker harassment or mistreatment may justify quitting, but only if it is severe and you have first attempted to address the issue with the employer.  “Necessitous and compelling” means what it says.  The circumstances must be so bad, any reasonable person in your position would quit also.

For willful misconduct, the law sets the bar high for the employer.  The employer must prove that you were aware of a rule or policy of the employer and deliberately violated it.  In most cases, the employer must establish the employee’s awareness through evidence of a written rule or policy and written acknowledgement of receipt of the rule or policy from the employee.

I can best explain the willful misconduct standard with an example.  I represented a casino employee who was in charge of supervising dealers at six card tables.  One evening, a dealer improperly paid out to bettors on several hands resulting in the casino losing thousands of dollars.  The casino fired both the dealer and the supervisor.  Curiously, the casino contested only the supervisor’s claim for unemployment benefits on grounds of willful misconduct.  The initial written Notice of Determination denied benefits.  The client sought my help and we appealed.  At the hearing, the casino produced evidence of a written policy my client had received requiring table supervisors to assure correct payouts.  However, the casino did not produce evidence that my client deliberately violated the rule.  There was no evidence of collusion between my client, the dealer or the bettor.  My client had simply become distracted and missed the dealer’s error.  The unemployment referee found in favor of my client and reinstated her benefits.

If you receive a Notice of Determination informing you your benefits have been denied, once again, you must appeal by the date on the notice or you may lose your unemployment benefits.  Timely adherence to filing deadlines is essential.

The Appeal

Filing an appeal is simple.  A one-page appeal form will be included with the Notice of Financial Determination and/or Notice of Determination.  You can handwrite “I appeal,” and fax or mail it to the address on the notice.  No legal language or even an explanation of why you disagree with the Notice of Determination is required.  The employer may also appeal if you are granted benefits.  Once an appeal is filed, a date for a hearing at the local unemployment office will be scheduled and notice mailed to the parties.

You are not required to have an attorney represent you at an appeal hearing.  However, with several thousand dollars of your unemployment benefits at stake, ask yourself if you feel lucky enough to represent yourself on your own?  Will you know the right evidence to present?  Will you know what questions to ask the employer’s witnesses or when to object to the employer’s questions and evidence?  Chances are you won’t.  You may overlook a critical piece of evidence or a critical issue that could be the difference between winning and losing the appeal.  Once the hearing is over, the standard for overturning the referee’s decision on a further appeal is whether the referee committed an error of law or whether the decision went against the weight of the evidence.  You don’t get a do-over just because you would do things differently a second time.

If you are still determined to go it alone, identify the evidence that will show you did not quit or that your reasons for doing so were necessitous and compelling.  Write it down.  Don’t expect to win simply by showing up at the hearing and telling your side of the story.  Know the issues on your appeal, whether a voluntary quit or willful misconduct, and be prepared to present documents and testimony of other witnesses who will support you.  If the employer contends you committed willful misconduct, ask them to produce the written rule or policy you violated and prove that you received it.  Ask what evidence do they have that shows you acted deliberately?  Evidence that you made an error is not enough.

If you are unemployed and unjustly denied your unemployment benefits, don’t let your safety net be cut out from underneath you by failing to follow the steps outlined in this primer.  If you have any questions, please call me at (215) 493-8287 or email me at scott@fegleylaw.com.

The Importance Of A Written Contract

“So let it be written.  So let it be done.”  This memorable quote is perhaps best known from Yul Brenner’s decrees as Pharaoh of Egypt in the classic film “The Ten Commandments.”  However, its simple principle is applicable to everyday agreements between people doing business together.  Write it down.

While an oral contract is enforceable, the problem with oral contracts is proving them.  Let me give you two recent examples.  A client hired a contractor to renovate rented commercial space prior to opening a new business.  The client understood the contractor to quote one price, and even made installment payments during the work, but he had nothing in writing.  When the work was finished, the contractor presented a bill almost $20,000.00 more than what the client had agreed to orally.  The contractor claims some of the work went beyond what they originally discussed, but no change orders were executed.

In another situation, a wedding planner hired a photographer to assist part time.  Again, the parties did not put their agreement in writing, nor did they consider who owned the rights to the finished photography proofs when the relationship ended.  When the photographer left, he wanted the wedding planner to pay him more money for the rights to continue to use the photographs he had taken during their arrangement.  Had the wedding planner simply inserted a sentence or two in a written agreement identifying the photographs as “works for hire” in which he had exclusive ownership, he could have avoided this predicament.

A written contract does not have to be complex.  And every contract should have three basic components:  (1) a brief DESCRIPTION of the goods being sold or the services performed; (2) the PRICE for the goods or services and how and when it will be paid; and the TERM of the contract or the length of time the parties intend to do business together in accordance with their agreement if it is not a single transaction.

Just as some attorneys may be handy with home repairs (I am not one of them), some contractors and business owners may be able to prepare simple contracts that meet their needs.  Anything in writing is an improvement upon an oral contract.  However, the more complex the contemplated transaction, the more professional draftsmanship can spare the parties to the agreement future conflict and legal expense.  Another well-known quote (at least for anyone over forty) comes from an old Fram Oil Filter commercial:  “Pay me now, or pay me later.”

Non-Compete Clauses: Can They Really Stop Me From Working?

Employees and independent contractors who sign contracts without fully understanding the content may jeopardize their livelihood.  Non-competition clauses in contracts are generally enforceable.  Accordingly, you should read and understand the non-competition clause’s provisions in order to make an intelligent decision about whether the benefit of the contract is worth the risk.  If you’re not confident you understand what the contract says, then a consultation in our Yardley, PA or our New Jersey office will be well worth avoiding an unpleasant surprise later on.

Non-compete clauses in employment agreements must be reasonable in scope and duration to be enforceable.  Generally, courts have held a period of up to two years to be a reasonable duration.  Courts will closely scrutinize any contract seeking to prevent competition in excess of two years.  Nevertheless, for the employee, being unable to work for two years can be punitive enough.

The more difficult analysis is the reasonableness of the scope of a non-compete clause.  When conducting such an analysis, the courts will consider geography as well as the specific duties of the job itself.  For example, a company whose clients are located only in Pennsylvania, New Jersey and Delaware cannot prohibit a former employee from working for another company anywhere on the East Coast.  And a  boutique women’s fashion shop who hired an employee to sell women’s clothing may not be able to prevent the employee from working for a company that sells men’s clothing.  Typically, the conflict arises when the employee attempts to work for someone else.  The courts will look at the old job and the new to determine whether the employee is “in competition” as defined by the language of the non-competition clause.

Like any contract, the language of a non-competition clause can be negotiable.  If you have concerns about whether the  language of a clause in a contract you are asked to sign may impair your  marketability to a  future employer, the time to address that concern is before  you sign the contract!   If you have any questions regarding your employment, contact The  Fegley Law Firm at (215)493-8287 or email Scott Fegley at  scott@fegleylaw.com.   We give you peace of mind!

Allstate awards $22 million to accident victim

Chalk this up as a win for David versus an insurance company Goliath.  Insurance giant Allstate recently was socked with a $22 million verdict for bad faith in a case that was one for the record books in the state of Pennsylvania.  A jury awarded $19.1 million to Patrick Hennessy of Feasterville, PA.  Another S2.9 million was added for delay damages and interest.  Hennessy was the victim of an accident that ultimately resulted in the amputation of his right leg.  Allstate refused to pay its $250,000.00 policy limits to Hennessey because he was outside the insured vehicle when the accident happened.

Jim Boyle of The Pennsylvania Record has more on the accident:

At about 2 a.m. on July 26, 2009, Hennessy was a passenger in a vehicle driven by a friend, Ryan Caruso, when Caruso rear-ended another vehicle. Hennessy and Caruso got out of their vehicle to push their car to the side of the road.  Hennessey was then struck by a vehicle driven by Shawn Robertson, Jr., crushing his limb.

When Allstate refused to pay its policy limits, Caruso assigned his rights against Allstate to Hennessy, allowing the plaintiff to sue the insurer.  The $22 million judgment encompasses the $19.1 million verdict and subsequent delay damages plus interest.

A young man’s life was changed forever and Allstate refused to compensate him $250,000 because of a legalistic reading of its policy language.  Allstate was wrong and now deservedly should pay.

Casey, Hennessy’s attorney, summed it up to the Intelligencer this way:

It was a protracted but ultimately successful battle between a young man with a catastrophic injury and the largest insurance company in America.  It is a testament to what one individual can accomplish through our civil laws when an injustice occurs.

If you have a legal matter related to an injury or your employment, please call our Yardley office at 215-493-8287 or send us an email HERE. We will be glad to help.