The “Whistleblower Law” in Pennsylvania, 43 P.S. §1 421 et seq., is a law that impacts all employers, including municipalities and authorities, even though most do not even know it exists. Still, just because something is not prevalent does not mean it does not have the potential to have a great impact.

§1422 of the statute identifies a whistleblower as any “person who witnesses or has evidence of wrongdoing or waste while employed and who makes a good faith report of the wrongdoing or waste, verbally or in writing, to one of the person’s superiors, to an agent of the employer or to an appropriate authority”. It is important to note that the person making the report must believe it to be true, must not have any malice towards the subject of the report and must not receive or expect any personal benefit.

As a result of the holding in Rankin v. City of Philadelphia, 963 F. Supp. 463, 1995-1997 the Whistleblower Law is applicable to municipalities and authorities. The Court in Rankin declared a public body may be held liable for violation of the statute. Per the statute, a public body may be:

1. A State officer, agency, department, division, bureau, board, commission, council, authority or other body in the executive branch of State government;
2. A county, city, township, regional governing body, council, school district, special district or municipal corporation, or a board, department, commission, council or agency;
3. Any other body which is created by Commonwealth or political subdivision authority or which is funded in any amount by or through Commonwealth or political subdivision authority or a member or employee of that body.

The employee, or someone acting on his/her behalf, is afforded certain protections, precluding the employer from discharging, threatening, discriminating or retaliating against the employee relative to the employee’s compensation, terms, conditions,  location or privileges. These restrictions upon the employer are not only for protection of the employee already making a report but also the employee preparing to make such a report. In addition, the employer cannot discriminate against an employee who is requested by a regulatory or law enforcement authority to participate in an investigation, hearing or inquiry.

Should an employee who makes a report find himself/ herself the victim of retaliatory action, the employee has one hundred eighty (180) days to pursue a civil action for relief under this statute. In presenting his/her case, the employee must show, by a preponderance of the evidence, that before the alleged reprisal, such as reduction in pay, demotion or termination, the employee, or someone acting on the employee’s behalf, was in the process of making the good faith report to any of the aforementioned individuals or entities. That is, the evidence must show the alleged reprisal was directly connected to the employee’s actual or intended reporting. Conversely, the employer must show by a preponderance of the evidence the termination or other alleged reprisal was done separately from the actual or intended reporting.

As with other concerns of employment, the statute requires the employer to post notices and use other means to keep employees informed of the protections and obligations under the Whistleblower Law.

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The most pertinent situation which email could be viewed by others is if the municipality or authority finds itself a party to litigation. During litigation, emails containing information relative to the litigation may be requested by the opposing party through discovery requests. Even with an effective written policy, no strategy can encapsulate every potential scenario. Therefore, in order to avoid any embarrassing circumstances or additional problems for the municipality and authority (as well as for the individuals comprising either), the person sending the email should consider the following:

1. Regarding the sensitivity of the matter, should the issue be put into print where it will remain?

2. Does the email contain any possible defamation, such as comments on the conduct, character, performance or other disparaging attributes about another. Comments and opinions about someone not copied on the email should be avoided. One idea: would the person sending the email want the subject to read the remarks?

3. Does the email contain any admission of liability relative to the respective municipality or authority?

4. Does the email contain any confidential information that should not be shared?

5. How accurate is the information?

6. A good practice is to email only necessary information and exclude anything irrelevant.

7. Also, if the content would not be written on letterhead, then it should not be written in an email.

With these understandings put into practice, any negativity that could have been contained in emails can be minimized or even possibly eliminated.

Also, to guard against emails that may accidentally or mistakenly be sent to the wrong recipient, municipalities and authorities should include a confidentiality and privilege notice at the end of all email communications. Such a notice would identify the information contained in the email as being privileged, confidential and protected from disclosure. The notice would warn the receiver of the email, should he/she not be the intended recipient, any dissemination, distribution or copying of the email is strictly prohibited. In addition, the unintended recipient would be directed to contact the person who sent the email to notify him/her they are not meant to receive such email and then to delete the email from his/her computer.

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On September 19, 2016, new legislation became effective that enhanced the Program by making more types of munici- palities eligible for funding to improve the traffic signals they own and sustain through the expansion of the definition of “municipality” (“New Legislation”). Previously, the defini- tion of municipality consisted of cities, boroughs, towns and townships. Now, counties, incorporated towns and home rule municipalities are also included.

A critical corridor had previously been restricted to either a “State highway segment intersecting with a with a limited access ramp identified by the Secretary of Transporatation [or] a State highway segment with bidirectional average an- nual daily traffic greater than 10,000 vehicles as determined by [PennDOT’s] Roadway Management Systems.” (Emphasis added.) With the New Legislation, municipal highways are now included as well. Likewise, a designated traffic corridor had previously been limited to a “State highway segment, other than a critical corridor, determined by the Secretary of transportation to be subject to the provisions of [Chapter 92 of Title 74].” (Emphasis added.)

For those municipalities who were unaware of this Pro- gram’s application to them and for those who are now eligi- ble, it may be beneficial for them to know:

A municipality may enter into an agreement with [PennDOT] to replace, synchronize and time traffic signals located within a (critical or) designated traffic corridor. The terms of the agreement may specify that the municipality provide services to [PennDOT]. The agreement shall not exceed the time period of the useful life of the traffic signals. The municipality shall, during the duration of the agreement, properly maintain and time the traffic signals in accordance with the agreement. 74 Pa. C.S.A. Section 9202(a).

Prior to September 19, 2016, the provision cited above was restricted to only a “designated traffic corridor”; a critical cor- ridor was added by the New Legislation.

Originally, 74 Pa. C.S.A. Section 9202 consisted of sub- sections (a) through (g). Other than what has already been stated for subsection (a), subsection (a) through (g) have not been changed. Subsections (h), (i) and (j) are new. Subsec- tion (h) pertains to first and second class cities and is not rele- vant here. Section (i), concerning signals managed by Penn- DOT, states:

(1) In accordance with subsection (c) [pertaining to PennDOT prioritizing critical and designated traffic corridors where proper signalization pro- vides the most benefit, PennDOT] may own, in- stall, replace, synchronize, time, operate or main- tain a traffic signal and all associated signs and markings included on a . . . traffic signal plan [approved by PennDOT] within a municipality if [PennDOT] publishes the location of the signal or the critical corridor as a notice in the Pennsyl- vania Bulletin [and]

(2) A municipality shall enact any ordinances and enter into any agreements necessary to complete the transfer of all rights and duties to . . . signals [managed by PennDOT] under this subsection.

Section (j), related to special pilot programs for signals man- aged by PennDot, adds:

(1) The department shall develop a pilot program for . . . signals [managed by PennDOT] to imple- ment on one or more critical corridors at [PennDOT’s] discretion as specified under this subsection [and]

(2) After implementation and evaluation of the pilot program, but no later than January 1, 2022, the secretary shall certify in the Pennsylvania Bulletin that the pilot program is ended and indicate whether or not the pilot program has been successful. If successful, [PennDOT] may maintain and expand [PennDOT’s] management of signals. This subsection shall expire January 1, 2022.

As stipulated in 75 Pa. C.S. Section 9511(e.1), funds for fiscal year 2016-2017 and each year thereafter will be in the amount of up to $40,000,000.00, which “is appropriated out of the Motor License Fund to replace, synchronize, time, operate and maintain traffic signals within traffic corridors consistent with [Chapter 92 of Title 74 of the Pennsylvania Consolidated Statutes (referenced above)]. The funds shall be used for mu- nicipal [signals] and [signals managed by PennDOT].”

Formerly, financial assistance was to be matched by mu- nicipal or private cash funding in an amount less than 50% of the amount of the financial assistance being provided. Under the New Legislation:

Financial assistance . . . shall be matched by funding in an amount not less than 20% of the amount of the financial assistance being provided. Except for transportation improvement program funds, the match may consist of any combination of Federal, State, regional, local and private funds, including in-kind contributions such as an exchange of services between [PennDOT] and municipality. Any grant made under this subsection shall be allocated for two consecutive fiscal years and shall not lapse at the end of the fiscal year when the grant was awarded. 75 Pa. C.S. Section 9511(e.1)(4).

Pursuant to 75 Pa. C.S. Section 9511(e.1)(5), PennDOT has established the guidelines for applications from municipalities, metropolitans and rural planning organizations for this financial assistance. “Applicants must enter into agreements provided for under 74 Pa.C.S. Chapter 92. Priority will be given to multi municipal improvements.”

Despite the amendments which permitted more parties to participate in this Program, became effective September 19, 2016, the current application period was from August 8, 2016 to September 30, 2016. The applications period for the fiscal year of 2017-2018 will be announced in the Pennsylvania Bulletin in January 2017.

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The compensation required to be reported to or as determined by the Department of Revenue under [Section 7303] of… the Tax Reform Code of 1971 [72 P.S. Section 7101 et seq.], and rules and regulations promulgated under that section. Employee business expenses as reported to or determined by the Department of Revenue under Article III of the Tax Reform Code of 1971 shall constitute allowable deduc- tions in determining earned income. The term does not include offsets for business losses. The amount of any housing allowance provided to a member of the clergy shall not be taxable as earned income.

Now, in addition to what has been stated, the definition also exempts “wages or compensation paid to individuals on active military service, regardless of whether it is earned for active military service inside or outside this Commonwealth.”

As with the rest of the Act, this amendment affects the following:

1. Cities of the second class, second class A and third class;Boroughs and towns;

2. Townships of the first class and second class; and
3. School districts of the second class, third class and fourth class, including independent school districts.

Representative Rob W. Kauffman of the 89th Legislative District of Pennsylvania in his House Co-Sponsorship Memoranda dated December 5, 2014 pointed out:

[The Act] was [initially] enacted with the intent of streamlining the manner in which the earned income… is collected at the local level. How- ever, when [the Act] was enacted, the definition of ‘earned income’ was modified in order to mirror language that currently exists within the Tax Reform Code. As a result of this definitional change, the scope of the [earned income tax] was increased to include active duty military pay that is earned within the boundaries of the Commonwealth.

Prior to [the Act], active duty military pay was exempt from the [earned income tax] regardless of where it was earned.

With this modification, the military service compensation is exempt.

As Mr. Kauffman explained:

In many cases, active duty military operations in Pennsylvania involve National Guard members that are called to service when a natural disaster strikes or another significant event occurs. When these brave National Guard members provide assistance relating to these matters, they are often forced to leave their families, take a leave of absence from their employment, and place their lives on the line all while being paid at a lower wage. By exempting this pay from the [earned income tax], I believe it is the least we can do to show appreciation for our brave service men and women.

This amendment went into effect immediately after it was signed by Governor Tom Wolf.

Local Governments and Adverse Possession

Although a person may not acquire title to real property owned by the federal and state governments through adverse possession, title to real property owned by political subdivisions may be acquired in such a manner. Only school districts are exempted from this possibility, because they are considered to be agents of the state. This is affirmed in Lysicki v. Montour School Dist.,Pa. Cmwlth., 701 A.2d 630, 632 (1997).

As declared by the Pennsylvania Superior Court in Flannery v. Stump, 2001 PA Super 307, 786 A.2d 255 (2001), which involved a dispute between two private individuals over whether title to a parcel of land was conferred by adverse possession, in order for title to land to be acquired by adverse possession, the person must prove actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the real property for twenty-one (21) years. If any of these elements is absent, then adverse possession does not exist.

For example, if a local government owns land but does not devote the real property to public use during the twenty- one (21) year period, the property is susceptible to adverse possession. Similarly, real property dedicated to a municipality for use as a public street may be lost if the municipality fails to open or accept the street within twenty-one (21) years. Otherwise, the municipality will need to obtain the approval of a majority of abutting owners, as decided by the Pennsylvania Supreme Court in Estojak v. Mazsa, 522 Pa. 353, 562 A.2d 271 (1989). The exception to this is if the local government obtains property through a tax sale. In Torch v. Constantino, 227 Pa. Super. 427, 323 A.2d 278 (1974), the Pennsylvania Superior Court concluded:

The time has come for the courts to recognize and respect the intention of the legislature in this field and to realize that ‘changing conceptions of the scope and functions of government’, clearly call for a determination that adverse possession does not run against the political subdivisions holding land for tax sales for nonpayment of taxes, as trustee, and to hold that this function is a governmental one.

Therefore, local governments should be mindful of the property they own or the interest they have in such property and whether such property is being employed for public use. Otherwise, the possibility of losing title to the property by ad- verse possession could happen.

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As originally publicized by the general media, one of HICPA’s biggest changes was the centralization of home improvement contractor registration. Prior to the implementation of HICPA, Pennsylvania had no statewide registration system for contractors, resulting in an inconsistent web of municipal control of contractors in some areas and little or no regulation elsewhere. Moreover and with some contractors not being formally incorporated, homeowners had little ability to vet contractors in any way.

HICPA now requires all contractors to register with the Pennsylvania Attorney General’s Of. fice and obtain a unique six digit registration number to be employed on all advertisements, estimates, and contracts with customers. Incidentally, while HICPA does exclude the construction of a new home, material sales, appliances, landscaping, and some other items, it does apply to most customary home repair trades such as plumbing and electrical in addition to general home improvement contractOrS. hardly equals affirmation as to the quality of a contractor or its services, a homeowner can perform a quick self-check, determine if a contractor is registered, and have a clear means of complaint with the Attorney General in the event of fraud or other serious misconduct in violation of HICPA or other Pennsylvania law.

Beyond the registration requirement, though, HICPA has attempted to strongly dictate contractual requirements for home improvement work. Namely and in order for a home improvement contract to be enforceable against a homeowner, HICPA requires any home improvement contract to be written, dated, and signed. Beyond the requirement that the contract must be written, HICPA states that all comprehensive terms of agreement between the parties must be contained within the written document itself along with other details to include the approximate starting and completion dates for any work. Moreover, specific information as to the financial terms of the contract must be incorporated, particularly on common so-called “time and materials” based agreement including a mandate that any change resulting in a 10% or higher price difference must be exclusively reflected within a written change order signed by both contractor and homeowner.

Such requirements may seem reasonable, but one must keep in mind that in the past many contractors have employed simple or general estimates of work only, whether signed by the homeowner or not, and rarely documented any change orders during the pendency of project into a signed writing. Essentially, many home improvement contracts traditionally employed prior to HICPA are not compliant with the new law and in some respects accordingly Void.

For this reason, contractors and home tradesmen must be cautious in assuring their contracts are compliant with HICPA. Without doing so, a contractor may risk the ability to pursue certain claims against a homeowner in the event of a non-payment or other default. It is equally important that homeowners look for completeness and detail in a contract, both to assess the contractors general compliance with HICPA and to avoid pitfalls as work proceeds based upon ambiguous or other inaccuracies in terms within an agreement.

Through limited early consideration by Pennsylvania’s appellate courts, it appears that HICPA cannot be used as an absolute defense by a homeowner in refusing to pay for work where no written contract or a contract inconsistent with HICPA exists. To this end, certain equitable relief claims may still be allowed even in the absence of a written contract or a proper written contract. However, a contractor’s historically most robust action, a breach of express contract claim, will fail under HICPA, resulting in lesser recovery of damages. Finally, HICPA gives some additional “teeth’ to homeowners relative to allegations of misrepresentation or fraud by a home improvement contractor. First, a new criminal offense of home improvement fraud was codified and can be prosecuted by a county district attorney or the Attorney Generals office in instances where a contractor knowingly and intentionally deceives someone. Secondly, HICPA purposely provides for civil claims under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, or UTPCPL, potentially allowing recovery of enhanced civil damages and attorneys’ fees in these cases.

It is likely that future court decisions will further shape the landscape of HICPA and home improvement law in Pennsylvania. Nonetheless HICPA remains moving forward and all home improvements contracts must be scrutinized to ensure compliance.

Thus, should you be considering entering into a home improvement agreement, please contact one of our attorneys and we can assist you in reviewing and implementing a HICPA compliant contract.

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Section 529 plans are statesponsored plans designed to encourage families to save for college. Section 529 plans provide for tax-free withdrawals for qualified education expenses, including tuition and room and board. They also provide special estate and gift tax treatment that cannot be obtained through trust planning.

Contributions to a 529 plan are, by statute, considered completed, present interest gifts; the amount contributed, as well as future earnings the gift may ultimately generate, is removed from the grantor’s gross estate. However, if the grantor is also the account owner, he or she retains full control over, and access to, the money. This control, coupled with the special gifting provision described below, makes the use of a 529 plan a viable strategy for those who want to pass assets on to a desired beneficiary, such as a child or grandchild, without relinquishing control of those assets.

529 plan contributions are made with after-tax dollars and accumulate tax free. Anyone, regardless of age or income, can make contributions to a 529 plan on behalf of a beneficiary, even if the beneficiary is him- or herself.

Three limitations apply to contributions of a 529 account:

-Gifting limit

-Special gifting provision

-Account limit

Section 529 does not impose an annual contribution limit on 529 plans, so contributors must take care not to exceed the federal annual gift exclusion (currently approximately $14,400.00) defined in IRC Section 2503(b) when contributing to an account for someone other than themselves. To avoid gift tax and reductions in the applicable exclusion amount, contributors may take advantage of the annual gift exclusion per 529 plan beneficiary.

IRC Sec. 529(c)(2) allows a special gifting method that is not available in any other vehicle and allows for potential accelerated earnings within the tax-favored account. Under this provision, a contributor may gift five years’ worth of annual exclusion gifts in one year on behalf of a 529 plan beneficiary without causing a taxable gift.

Sponsoring states set account limits to prevent accumulation of more money than needed to send a beneficiary to college. Account limits vary by state, generally ranging from $235,000 to $453,000. Once the balance in a 529 plan reaches the account limit, new contributions cannot be made to the plan, although earnings may cause the account to exceed the limit.

Contributions to a 529 plan are not deductible from federal income tax. However, many states provide a state tax deduction or credit for residents who participate in their 529 plans. Six states, including Pennsylvania provide a state tax deduction for contributions made to any 529 plan.

Distributions used for qualified higher education expenses pertaining to the enrollment or attendance at an eligible educational institution are free from federal income tax and, in most cases, state income tax as well.

Examples of qualified expenses include the following:

-Tuition and fees

-Room and board (including off-campus housing, up to the cost of on-campus housing)

-Books, supplies and equipment, as required by the institution

-Expenses for special needs services required by a special needs beneficiary in connection with enrollment or attendance at an eligible institution

Distributions are made up of a proportionate amount of the principal (contributions) and earnings within the plan. If a distribution is taken from a 529 plan but not used for a qualified expense, the portion of the distribution repreSenting earnings is subject to ordinary income tax and a 10% federal penalty.

The 10% penalty does not

On several occasions throughout my years of practice as an intellectual property attorney, I have been approached by clients who have received “cease and desist” letters demanding that they stop using their new corporate name due to the infringement of a federal trademark. In some of those cases, the clients had spent tens of thousands of dollars marketing and advertising their new business names. You can imagine their shock when they found out that, not only could they be prevented from using their new name, but also could be ordered to pay extensive damages including the trademark owner’s attorney’s fees.

Fortunately these costly mistakes can be easily prevented by consulting an intellectual property attorney. Before choosing a corporate name, a search of the Federal database of trademark applications and registrations should be conducted. The search can also be broadened to check for registrations in other states. The attorney can then render an opinion as to whether the name infringes on an existing trademark. Taking this simple step before forming a corporation or registering a fictitious name can prevent disastrous consequences.

The final step in the process is to seek protection for the new name. In the age of online sales and internet advertising, even small businesses should be concerned with nationwide protection of their names. The requirements for registration of a trademark are somewhat complex and beyond the scope of this article. However, an intellectual property attorney can assist in choosing a name the meets the registration requirements, and can ultimately file and prosecute a trademark application to secure nationwide trademark protection. If properly done, a registered trademark could prove to be a business most valuable asset.

Apply to distributions that are:

-Paid to a beneficiary, or to the designated beneficiary’s estate, on or after the designated beneficiary’s death

-Made because the designated beneficiary is disabled.

-Included in income because the designated beneficiary received veterans educational assistance, employer-provided educational assistance, a tax-free scholarship or fellowship, or other nontaxable payments designated for educational expenses (with the exception of gifts or inheritance).

-Made on account of the designated beneficiary’s attendance at a U.S. military academy, not to exceed the costs of education attributable to attendance.

-Included in income only because the qualified education expenses were taken into account in determining the American Opportunity or Lifetime Learning Credit.

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Whether or not any given name may be used in connection with any particular good or service is a matter of trademark law. The federal trademark law, known as the known as the Lanham Act, governs the registration and use of trademarks in interstate commerce. Trademark law differs from the state laws that govern incorporation and fictitious name registration. If a party obtains a federal trademark, that party has the right to prevent others from using confusingly similar marks with respect to similar goods and services throughout the entire United States. Attorneys use the term “trademark” to refer to any design, word or combination of Words and designs, used in connection with the products or services of a business. Technically, the term “service mark” is used for designations of services, but a service mark is just one type of trademark. Trademark law is part of an area of law known as intellectual property, and is usually undertaken by attorneys who are registered to practice before the United States Patent Office.

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You must take a Required Minimum Distribution (“RMD) from your regular IRA by April 1 of the year following the calendar year in which your reach 70%. You may take more than the minimum required by the IRC, but you cannot take less. The full amount of your withdrawal will be included as taxable income. Each subsequent year, you must withdraw your RMD by December 31.

If you fail to withdraw an RMD, fail to withdraw the full amount of the RMD or fail to withdraw the RMD by the applicable deadline, the amount not withdrawn is taxed at 50%. (For the year in which the full amount of the RMD is not taken, the account owner should file a Form 5329, Additional Taxes on Qualified Plans (including IRAs) and Other TaxFavored Accounts.

For those who are interested, you may take your RMD from your IRA and endorse it to a charity and receive a charitable deduction when you file your tax return.

When you received the RMD, you will receive a 1099-R to report the RMD as taxable income on your tax return. You can then give that money to charity and deduct it as a charitable contribution. Of course, you must have proof of the contribution, such as a cancelled check or credit card statement. You must also obtain a written acknowledgement from the charity for each deductible contribution of S250.00 or more.

Likewise, you may transfer funds from your IRA to an eligible charitable organization, though certain rules apply. These rules are:

-You (the owner of the IRA) are at least 70%.

-The maximum amount transferred to an eligible organization tax-free is $100,000.

-The IRA may exclude the distributed amounts from your income. You can claim this benefit regardless of whether you itemize your deductions. If you do exclude the contribution from your income, you cannot also deduct it as a charitable contribution on Schedule A, if you do itemize. O You can count your Contribution in determining whether you meet the IRAS RMD. O Not all charities are eligible. For example, donor-advised funds and supporting organizations are not eligible recipients.

The advantage of this option is that the qualified distribution to the charity will not be considered taxable income. The charity can receive the full amount and you, the taxpayer will not pay income tax on the distribution.

Each financial institution has their own forms and procedures relative to this. You should check with the financial institution before the end of the ear as to their procedures.

Although the provision had expired at the end of 2013, the new law was retroactive for 2014. This means any eligible QCD in 2014 will qualify. As for 2015, you will need to have your tax preparer or tax attorney check the current tax regulations before making contributions.

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18 Pa. C.S.A. Section 7510 stated:

(a) Offense defined.—A person commits the crime of municipal housing code avoidance if:

(1) the person has been convicted of a fourth or subsequent violation of the same subsection of a municipal housing code for the same property;

(2) the violation has been continual and uncorrected;

(3) the violation poses a threat to the public’s health, safety or property; and

(4) no reasonable attempt has been made by the person to correct the violation.

(b) Grading.—Municipal housing code avoidance shall constitute a:

(1) Misdemeanor of the second degree when the offense is a fourth conviction of a violation of the same subsection under a municipal housing code relating to the same property.

(2) Misdemeanor of the first degree when the offense is based on five or more convictions of violations of the same subsection under a municipal housing code relating to the same property.

(c) Definition.—As used in this section, the term “municipal housing code” means any munici- pality’s building, housing or property maintenance code or ordinance.

53 Pa. C.S.A. Section 6115 states (the new law):

(a) Offense defined.—The owner of real property commits the offense of failure to comply with a code requirement if all of the following apply:

(1) The owner of real property has been convicted of a second or subsequent serious violation of the same provision of a municipal code for the same property.

(2) The violation poses a threat to the public’s health, safety or property and the owner has not taken a substantial step to correct the violation.

(3) The violation is considered a public nuisance and the owner has not made a reason- able attempt to correct the violation.

(b) Grading.—Failure to comply with a code requirement shall constitute a:

(1) Misdemeanor of the second degree if the offense is a second conviction of a serious violation of the same provision of a municipal code relating to the same property.

(2) Misdemeanor of the first degree if the offense is based on three or more convictions of serious violations of the same provision of a municipal code relating to the same property.

(c) Definition.—As used in this section, “code requirement” shall mean a building, housing or property maintenance code or ordinance of a munici- pality.

In the previous statute “a person” committed offense. There was no distinguishing whether the person was a human being and/or an entity, such as a company. Now, the new law specifies “the owner of real property” is culpable. Thus, there can be no doubt the statute is ap- plicable to both a human being and an entity.

In addition, while the offense previously was not ap- plicable until the fourth or subsequent conviction of the same subsection of a municipal housing code for the same property, the new law reduces the conviction num- ber to the second or subsequent violation. Furthermore, the violations must be serious, for the same provision of a municipal code and for the same property. The new statute in Title 53 is broader in the sense of what viola- tions count towards the two violations. That is, instead of the violation being limited to the repeated infraction of a subsection a particular section, a violation of the same sections, which may consist of many subsections, now applies.

What makes this statute particularly interesting is the classification of the violations as misdemeanors rather than summary offenses, as is usually restricted by viola- tions of municipal ordinances and codes. For a second conviction, the offense is a misdemeanor of the second degree. This consists of a fine not in excess of $5,000 and/or imprisonment not exceeding two years; for a third or subsequent conviction, the offense is a misde- meanor of the first degree, which entails a fine of not more than $10,000 and/or within five years of incarcera- tion. 18 Pa. C.S.A. Sections 1101(4) and (5) and 1104(1) and (2).

This new statute became effective September 8, 2015.

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One of the sixteen (16) enumerated factors that Pennsylvania Courts must consider when rendering a Custody Order is which party is more likely to encourage and permit frequent and continuing contact between the child and the other parent. In certain cases, the custodial parent’s behaviors, either deliberately or unconsciously, may cause a breakdown in the attachment or bond between the non-custodial parent and child to the point where the child sees the non-custodial parent as the “enemy” in a custody case causing fear, hatred, disrespect and avoidance towards the non-custodial parent. This is known as Parental Alienation Syndrome and most parents view this as either “bad mouthing’ or “brainwashing” the child against the other parent. In severe cases, the child may not want to even see or talk with the other parent, and this could permanently damage a relationship between a parent and child.

Parental Alienation may be intentional or unintentional behavior exhibited by the custodial parent and, therefore, the causes of it may vary from case to case. However, there are certain motivating factors from parents that cause Parental Alienation. In a lot of cases, an alienating parent may have unresolved anger towards the other parent for perceived wrongs committed against them during the relationship or marriage and cannot separate these feelings from parenting issues. Sometimes the alienating parent may have unresolved issues from their own childhood they are projecting on the other parent. Also, an alienating parent may be so insecure with their own parenting skills that they project these concerns onto the other parent. In many cases, new spouses or grandparents also push the alienating parent into an inappropriate behavior for their own personal agenda or wrong reasons and the alienating parent is not emotionally strong enough to resist,

Pennsylvania Courts have of ten used Parental Alienation Syndrome as a reason to transfer custody from the alienating parent to the non-custodial parent since not encouraging a loving relationship with the other parent is clearly not in a child’s best interests and, as stated above, could have severe and permanent adverse effects on the non-custodial parent and child’s relationship. In a recent case that was decided by the Superior Court of Pennsylvania in April of 2015 called WCF v. MG, the Court held that Parental Alienation was a critical factor in 2 awarding primary physical custody to a father where a mother falsely accused the father of child abuse where no such evidence existed or was corroborated with other independent facts. In this case, the maternal grandparent was a substantial influence on the alienating parent in making these claims of abuse. The Court stated that attempts at Parental Alienation by a parent cannot be rewarded by the Courts.

The following are some warning signs if you believe that your exspouse or ex-significant other with whom you had a child is currently exhibiting behavior conducive to Parental Alienation Syndrome.

Allowing the child to choose whether to visit with the noncustodial parent instead of encouraging the child to visit with the other parent pursuant to a Court Order. Disclosing to the child details about the parties” marital relationship or the reasons why the parties divorced.

• Denying the non-custodial parent access to school and medical records and schedules of activities.
• Blaming the non-custodial parent for money problems, splitting up the family or having a girlfriend or boyfriend and making the child aware of these issues.

When a child is unable to give reasons or gives vague reasons for their anger towards the other parent.

Using a child to spy or secretly gather information for that own parent’s use.

When the custodial parent reacts with hurt or sadness to a child having a good time with the non-custodial parent.

Refusing to be flexible with the custody schedule and scheduling activities for the child so the other parent is not given time to visit.

Assuming that a parent who has physically abused the other parent will also assault the child.

Asking the child to choose one parent over the other.

Encouraging the child’s anger towards the other parent.

Suggesting that the child’s name be changed or having a step-parent adopt that child.

Asking or interrogating the child about the non-custodial parent’s personal life.

Making demands on the noncustodial parent that are contrary with Court Orders.

Eavesdropping or listening on the child’s phone calls with the other parent.

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