In the case, police stopped a speeding pickup truck and questioned the driver and passenger.  Because the driver and the passenger had inconsistent stories about where they were going, the police asked for permission to search the vehicle, and the driver consented.  The police found 35 pounds of marijuana, a firearm, and a cell phone in the truck.  The driver claimed that he had only been hired to drive drugs, that he had never met the recipients and that he had been given the cell phone with instructions to text a phone number stored in the phone for final directions regarding the delivery point.  The driver agreed to let the police text for the delivery location information; the driver then assisted the police in the process, answering several crucial identifying questions that the police would not have been able to answer to the satisfaction of the recipients without the driver’s help.

Apparently satisfied that they were in touch with the driver, the drug recipients gave final directions to a Holiday Inn parking lot.  There the police surprised them and arrested them for attempted drug dealing.

The superior court threw the criminal cases against the drug recipients out, finding that the police had been obliged to comply with the Act’s requirements for a court order before texting the recipients drug dealers.  The court noted that police officers can use e-mail messages and text messages as evidence in court but that they cannot contemporaneously engage in an exchange of text messages with a criminal suspect by subterfuge unless they have first obtained a search warrant.

The Pennsylvania Supreme Court may disagree; that Court has final word on all issues of Pennsylvania judicial law and has decided to review the case.  Until the case has worked its way through that process, law enforcers can’t masquerade via text messages to investigate a crime unless they have specific wiretap court orders that permit them to do so.

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Two recent cases highlight the impact of the Act’s strict application of the concept of the “employment.” In the first case, a woman was injured while in the process of applying for a position as a food server at a retirement home.  After she had filled out a written application, she was directed to go to a medical office in the retirement home for a tuberculin test.  A nurse performed the test, which consists of the injection of a small amount of tuberculosis protein under the skin of the forearm.  The woman passed out shortly after the injection, hitting her head on the floor.  She received medical treatment, including a CAT scan.

The woman filed for workers’ compensation benefits, claiming that she had been told that she had the job as long as she passed the tuberculin test.  She claimed that she was fired before walking down the hall to the medical office for the test.

The employer denied having hired the woman before she fell and hit her head.  The retirement home director testified at the hearing that the woman was eventually hired by the retirement home, but not until she had completed a full process of signing a federal W-9 form, filing out a form identifying her vehicle, undergoing a full background check, and submitting to drug testing.  The tuberculin test was the first step in the process of examining the woman’s eligibility for hiring.  The court agreed, noting that the employer/employee relationship is the fundamental foundation to all workers’ compensation claims and does not exist until the employer has actually hired the employee.

In a separate case, a bus driver lost his workers’ compensation benefits when the court found that he hadn’t actually been working when he was injured.  The bus driver worked for a charter bus company, driving a 49-passenger bus from Pennsylvania to Atlantic City daily.  He lived in Delaware and commuted in his personal car to the bus company’s bus yard in Pennsylvania.  The bus driver claimed that he was paid to commute; he received a flat fee or $128.50 per day regardless or the number of hours he drove.

The bus driver further claimed that the company paid a higher daily flat rate for trips from the particular bus yard he worked from, because due to his location, it was not a popular yard among the bus drivers.  Claiming that the increased flat rate took into account his commute time, the bus driver claimed that his commute was part of his work day.  The employer agreed that the $128.50 was a flat rate that included an undefined premium for working from the particular bus yard, but it denied that it paid any drivers for their commuting time.

The court found that the bus driver was not “in the course and scope of employment” while commuting to work and was not entitled to benefits.  The court noted that the worker’s compensation law has, for many years included the “coming and going rule.”  The coming-and-going-rule provided that injuries sustained on the way to or from the job are pensable only if at least one of four factors exist.  (1) there is an employment contract that includes the compensation for transportation to and from work; (2) the employee has no fixed place of work; (3) the employee is on a special assignment for the employer; or (4) special circumstances exist showing that the employee’s coming and going is furthering the employer’s business.  Because the bus driver was not reimbursed his actual commuting expenses or paid a set amount for the time commuting, the court found that he did not meet the narrow factors in the coming-and-going rule.  When an employer gives an employee an errand to complete on the way to or from work, the employee can be considered to be working during the entire commute.  Likewise, when any employee starts his or her day by calling on customers or by reporting to various locations for the employer, the commute is work time. Employers and employees should examine their work circumstances and determine whether the employee’s commute is compensable time.  In order to limit workers’ compensation exposure, employers should structure employees’ duties and work locations with the coming-and-going rule in mind.

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The IRA beneficiary designation should be part of a comprehensive estate plan unique to each individual.  There is no standard beneficiary designation that can be advised for all clients.  When determining the proper beneficiary designation, consideration must be given to the issues that must be addressed for any and all of the client’s assets, such as planning for estate taxes, multiple marriages or special needs children.  Additionally, consideration must be given to issues unique to IRAs, such as the required minimum distribution (RMD) rules.

An IRA is a retirement plan created under the provisions of Section 408 of the Internal Revenue Code.  Earning inside a traditional IRA are not subject to income taxes until they are distributed.  As the name implies, the RMD rules govern the minimum amount of distributions required annually from an IRA both before and after the client’s death.

The client, or the beneficiary after the client’s death, always has the ability to take distributions larger than the RMD from the IRA, including a distribution of the entire account.  However, because of the tax deferral benefits of IRAs, many clients and or prefer the opportunity to take the smallest possible distributions and “stretch” the IRA.

The client’s beneficiary selection may affect how the RMD rules are applied.  Consequently, an understanding of the RMD rules is the necessary to select the appropriate beneficiary.

The client must begin receiving distributions from his or her IRA no later than the required beginning date (RBD).  The RBD is April 1 of the year following the year in which the owner attains age 70 1/2.  Although the client has until the RMD to receive the first RMD, he or she must receive RMDs for all successive years by Dec.; 31 of each year.

Clients should be aware of possible tax consequences of bunching the first two RMDs in the same tax year.

Following the death of the client, RMDs will be based on 1) the identity (spouse, non spouse, trust, etc.) and qualification of the beneficiary as a designated beneficiary and 2) whether the client dies before or after the RBD.

A “designated beneficiary” is an individual or a trust meeting certain requirements (qualifying trust), which are discussed later in this article.  Neither an estate nor a charity can be designated beneficiary.  Determination of the identity of the beneficiary  and determination of its status as a designated beneficiary are not required to be finalized until Sept 30 of the year following the death (designation date).

The period of time before the designation date may provide valuable opportunity for postmortem planning by the beneficiary and the professional.  In situations with multiple beneficiaries, distributions may be used to satisfy or eliminate a certain beneficiary that cannot qualify as a designated beneficiary.  This would allow the remaining beneficiary and benefit from further deferral opportunities.  Additionally, estate-planning techniques may be used during this time to provide a more tax-efficient distribution of the IRA.  If a trust is named as beneficiary, this period of time may also provide an opportunity fore the trustee, to use techniques to allow the trust to become a qualifying trust.

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As a juvenile, the young man had admitted the offenses, was adjudicated a delinquent, spent three months in a treatment facility, and was discharged fro supervision after six months of supervised probation.  Five years after he had completed his probation, he petitioned the county court for expungement of his record.

The stated purpose of Pennsylvania’s juvenile laws is to provide juveniles with rehabilitation and an opportunity to change their behavior.  As a result, juveniles are not charged with “crimes”;instead, they are charged with “delinquent acts.” They are not “convicted”; instead, they are “adjudicated delinquent.”

Pennsylvania law provides that in minor cases, county judges may order the expungement and destruction of the records of a juvenile’s adjudication if the charges are dismissed or if six months have passed since treatment was concluded.  In more serious cases, juveniles must wait five years from the end of their treatment to seek expungement and must also show that they have not been charged with any additional offenses. In deciding whether to expunge records in serious cases, the county judge must consider the juvenile’s original offense, the juvenile’s age, history of employment, criminal activity, and drug or alcohol problems, and any adverse consequences that the juvenile may suffer if the records are not expunged.  The judge must also consider whether retention of the records is required for purposes of protection of the public safety.

The young man who sought expungement for his juvenile records of possession of Ecstasy had finished high school following his probation, held a steady job in the construction industry, was attending community college, and had no further encounters with law enforcement following his juvenile adjudication.  Nevertheless, prosecutors objected to the expungement, arguing that the juvenile had been 17 when he arrested and was not young or unsophisticated.  They also focused on the serious nature of the offense, arguing that the juvenile had been selling a significant amount of Ecstasy in school, an illegal drug that acts as a stimulant and a hallucinogen.  The prosecutors further noted that the juvenile had been able to finish high school, get into college, and get a job, all without any problems having been caused by his juvenile record.  The prosecutors felt that the public was better protected by the court’s having a records of the juvenile adjudication.  The county judge denied expungement, relying in part on provisions of Pennsylvania drug laws that consider drug sales not appropriate for expungement.

On appeal, the juvenile prevailed and got his juvenile record expunged.  The appellate court found that the expungement laws for juveniles are very different from those for adults.  Noting that the juvenile expungement law provides, “an opportunity for children who crash upon the reef of criminal behavior to leave behind the damaging effect of such collisions, “the appellate court reversed the county judge’s decision and ordered the juvenile records expunged.

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A Pennsylvania college graduate recently succeeded in challenging the Bureau’s order barring him from sitting for the state examination for licensing as a an engineer.  The graduate had attended the University of Scranton, a respected private university in Pennsylvania.  He had completed the University’s four-year program, earning a bachelor of science degree in electrical engineering and graduating magna cum laude.  

But when he applied to take the Pennsylvania state test for his engineering license, he was denied the opportunity even to take the test.  Noting that state regulations require that candidates for the state engineering license test must first attend an approved four-year engineering curriculum, the Bureau rejected the graduate’s application because the University of Scranton did not appear on the approved list.

Several deans from the University testified at the hearing on the graduate’s appeal to force the Bureau to permit him to sit for the test.  The deans described the University rigorous engineering curriculum and noted that the University’s students performed well in intercollegiate engineering competitions.  The deans also described the obstacles to securing state approval.

Given that the Bureau did not conduct it’s own approval process but instead deferred the approval authority to the Accreditation Board in Engineering and Technology (ABET), a national private entity, the deans described the onerous process that the University had twice followed, over a period of 10 years, to secure (ABET) approval.  Despite the University’s successful engineering program and course content, ABET had denied it approval on ground that did not have sufficient full-time faculty in the program.  Noting that another application to ABET would require the full-time attention of one of the program’s eight professors for an entire year, the deans advised that they could not afford to apply again.

After the hearing, the Bureau’s hearing board denied the graduate the right to take the test, finding that it’s regulations must be met by all candidates.  But the graduate promptly appealed the decision to the Pennsylvania Commonwealth Court, and the graduate prevailed.  The commonwealth court found that the Bureau was not entitled to rely solely on ABET for the approval of engineering programs.  Emphasizing the fact that Pennsylvania and other state high school graduates choose engineering programs at accredited universities in the reasonable belief that those universities satisfy the Bureau’s regulations, the Court found that the Bureau has both broad authority and broad obligation to approve schools whose quality of education is satisfactory.  Concluding that the Bureau is obliged to exercise its independent judgement and to evaluate responsible engineering programs itself, the Court ordered that the Bureau permit the graduate to sit for the exam.

Before embarking on on a course of study for any occupation or profession, it is wise to fully examine the licensure process as well as the educational requirements.  Had the graduate failed in his efforts to gain access to the test, he might have had an actionable claim against the University for its failure to have advised him clearly of its status with the Bureau.  But succeeding in such a lawsuit would have resulted only in a damages award; it would not have resulted in his winning an engineering license.  To learn more about the Bureau’s authority over licensed businesses and professions, go to www.licensepa.state.pa.us.

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