Legal Advice Blog: Legal Advice, Case Insights, & Local Law Information

What’s more fun - binge watching shows or live watching? Before Game of Thrones, I’d have said binge watching is the way to go. Sadly, Sunday night the wildly popular Game of Thrones came to an end. After 8 seasons the show wrapped up leaving a huge hole in my Sunday night TV routine. Like most, I was not satisfied with the ending of the show. But thanks to Game of Thrones I found the value in classic appointment TV. New-aged streaming services have made binge watching the new norm. Although I’m a huge fan of binge watching, I have found new joy of live TV. I have always tune in for live programming like the news or talk shows, but anything else I usually set aside to binge later. I have found watching a show live adds more to the experience. Live tweeting with other watchers or sharing your thoughts and opinions in a group chat with friends in real time, is way better than waiting for your friends to finish watching binge watching before you can discuss. Also, a show like Game of Thrones, which is insanely popular, waiting to watch later leaves the opportunity for spoiler to ruin the show for you. So, thank you Game of Thrones for ripping my heart out with the ending but more importantly bringing people together a group of people to see who would claim the Iron throne.

Bad things can and typically do happen when a tractor trailer is parked on the side of a busy roadway. The most catastrophic is when a smaller passenger vehicle is caused to leave the roadway and underrides the back end of the trailer. When an innocent passenger is killed or maimed, a portion of fault is normally apportioned to the driver of the vehicle who departed from the traffic lane. It is necessary, however, to examine the decision to violate safety standards by parking a big rig on the side of the road. The common reaction of people who are uninformed as to the safety standards governing commercial motor vehicles is to immediately conclude the driver of the car striking the parked tractor trailer is responsible. Thus, it is necessary to thoroughly investigate and, if possible, refute potential defenses. If the driver of the car had a cell phone, it is worth the cost to do a forensic download and rule out driver distraction from a cell phone at the time of the crash. A reliably conducted medical examination or autopsy is needed to rule out alcohol or drug use that may have contributed to cause of the crash. Why? One of the least understood hazards on our roadways is a tractor trailer parked on the side of the road. I am sure just about everyone has witnessed it, whether during the day, or late at night, a tractor trailer parked inches from the right travel lane. It goes without saying how dangerous this conduct is to vehicles traveling on the roadway. Why? Vehicles can and will occasionally leave the travel portion of the roadway. Everyone expects such a deviation. How many people have ever run over rumble strips positioned just off the roadway? This can happen for any several innocuous reasons. A driver may be forced to swerve to avoid another vehicle or an animal running onto the roadway. A vehicle can hydroplane and spin off the road when water pools during heavy rain. The foreseeability of vehicles departing from the traffic lane is why highways built in the United States in recent decades have incorporated road design features to make roadsides forgiving for drivers who makes such mistakes. The American Association of State Highway and Transportation Officials ( AASHTO) recommends construction standards for shoulder and right of way design. This includes clearance of obstructions such as, trees, steep slopes, or abutments which may hinder a motorist from being able to recover from an unintended departure from the roadway. They also recommend guardrails whenever feasible to redirect drifting vehicles back onto the paved portion of the roadway. The Roadside Design Guide defines a clear zone as the total roadside border area, starting at the edge of the traveled way, available for safe use by errant vehicles. This area may consist of a shoulder, a recoverable slope, a non-recoverable slope, and/or a clear run-out area. Simply stated, it is an unobstructed, relatively flat area beyond the edge of the traveled way that allows a driver to stop safely or regain control of a vehicle that leaves the traveled way. The highway shoulder is not designed for parking. It is a “clear zone” or “recovery zone,” not a parking area. Yet every day we see 18-wheelers parked in that “recovery zone” or shoulder, parked overnight and not illuminated. A large Commercial Motor Vehicle (CMV) parked on the shoulder of a highway becomes a large, immovable, rigid barrier blocking the “clear zone.” It creates an eminent hazard to occupants of any vehicle which may depart, for whatever reason, from the travel portion of the roadway. Tractor trailers parked in the “clear zone” or “recovery zone” create the equivalent of an unforgiving solid wall. This presents a vastly greater danger to people in approaching cars. When a car veers out of its lane and collides with an 80,000-pound tractor trailer, the physics is devastating. Semi-trucks are not only larger and heavier than regular vehicles, but their trailers also stand high off the ground. If a car traveling at highway speeds meets the trailer of an 18-wheeler, the big rig is the perfect height to sheer off the top of the car and kill or perhaps decapitate anyone inside. Conspicuity of big rigs parked on the roadside, especially in darkness and/or poor weather conditions affecting visibility is a hazard. That is why the Federal Motor Carrier Safety Regulations have strict rules on this. At § 392.22 on Emergency Stops, the regulations require, “whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices”. As soon as possible, and in all cases within 10 minutes, the driver must places three reflective triangles or flares. Trucking company corporate management can reduce this risk of a deadly crash through management practices that include good trip planning so that drivers can reach safe places for planned stops before they run out of safe driving hours. Companies should manage their fleets to make frequent vehicle inspections and perform appropriate equipment maintenance. Trucking company management should require drivers not to stop along the roadside in non-emergency situations and instruct drivers to exit the highway and find a safe place to park when necessary. If due to mechanical breakdown a truck driver has no choice but to stop on the side of the road, trucking companies should train drivers and dispatchers on things they can do to reduce the risk of a loss in the event of a breakdown or other roadside emergency. Such actions include: Immediately turn on hazard flashers when slowing and leave them on while stopped. Immediately set out warning devices (reflective triangles or flares) in accordance with the Federal Motor Carrier Safety Regulations at 49 CFR § 392.22. Keep marker lights on after dark. Avoid parking on curves or on the downside of undulated roads that obscure the approach of oncoming traffic. Park as far off the traveled roadway as safely possible. Remember shoulders can be soft and have a steep drop-off or ditch. When stopped, set parking brakes. Notify employer as soon as possible to arrange roadside assistance. Avoid falling into traffic by using three points of contact exiting /entering the cab or climbing onto the catwalk or trailer. Walk along the side of the vehicle opposite traffic. Watch out for debris or uneven surfaces when outside the vehicle. Use a visible flashlight after dark. Wear reflective clothing (such as a high visibility safety vest) when exiting the vehicle. When presented with catastrophic crashes that involve a commercial motor vehicle parked by the side of the road, Bordas & Bordas investigates the crash and retain the appropriate experts. We determine why the driver chose that spot to pull off and stop. We download electronic control module data and other electronic records from both vehicles. How long had the truck been parked? Was there a dash cam video on either vehicle that could be evidence? Was it an actual emergency or mechanical failure? Was the driver failing to follow safety rules and simply stopped for a “break” on the roadside rather than in a safe place off the road? Did the truck driver can stop in a safer location? If a family member is badly injured or killed in a collision with a tractor trailer parked on the roadside, please call us at Bordas & Bordas.

Spring has sprung and April’s showers have graced us with some beautiful May flowers. Along with the warming temperatures and longer days that we’re enjoying comes the return of another seasonal rite – baseball & softball season. Thousands of youngsters will find themselves rounding the bases, tagging runners, or even picking flowers in the outfield over the next few months as little league baseball and softball seasons hit full speed. It can be argued that the game of baseball has more clichés than any other, and while we all know the object and basic rules of the game, some clichés that you’ve heard since your childhood years to explain the game of baseball, the same one’s that you may have repeated over and over to those sitting next to you, or even jeered to an umpire are just dead wrong. The following are just a few of the baseball rule myths that we seem to hear the most, with the actual baseball rule or interpretation included. Myth #1: A tie goes to the runner I think we’ve all heard this one at one time or another. A play at a base is so close that it appears that the runner and the ball arrive at the same time. In reality, the baseball rule book never addresses a ‘tie’ at a base. It is simply up to the umpire to determine if the runner was touching the base before the ball arrived in the fielder’s glove. Myth #2: A batted ball that hits home plate is foul THUD! That unmistakable sound of a batted ball that hits home plate. It seems to disorient everyone around it while the batter, pitcher, catcher and fielder decide what to do in the chaos. Inevitably, the play should continue, but usually, a voice comes from the stands, “that ball hit the plate, ump!” Why yes…yes it did. When fielded in fair territory, it becomes a fair ball. Myth #3: When running through first base, a runner must turn right to avoid being tagged out on his way back The inning is off to a good start. A solid hit and the runner beats the throw to first base. After running through the base, the player then walks back to the base in fair territory to enjoy his moment of glory. Again, that infamous voice from the crowd tells the first baseman to, “TAG HIM!” A player who overruns first base is legally entitled to return to the base in any direction that he’d like as long as, in the umpire’s judgement, he did not make a legitimate move toward second base. Myth #4: A player must make an attempt to get out of the way in order to be awarded first base after he’s hit by a pitch This one is fairly simple. The batter is SUPPOSED to make an attempt to avoid being hit by the ball. Again, this defaults to the umpire’s judgement. In every single instance of my umpiring career, I would award first base in this instance. Many players at the youth level lack either the quickness, awareness, or simply freeze at the sight of a baseball speeding toward them. Besides, do you really want to be the one protesting after a child is struck with a baseball? Here’s hoping that this enhanced your knowledge of the rules of the game of baseball. Now, sit back, relax and enjoy the memories that our young people are making on the diamond this year. Most importantly, on behalf of Bordas & Bordas, best of luck to all area little league baseball and softball players this season. Play ball!

Business and golf go together like butter and popcorn. Like business, though, it helps to know your golf. And this past January, a very old rule was changed for those hitting the fairways. Did you know it’s now OK to putt with the pin in and even knock your ball against the flagstick? Beginning last Jan. 1, that’s exactly the case. Before this year, hitting the flagstick with your ball from on the green resulted in a two-stroke penalty. The new rule, though (to be specific, USGA Rule 13.2a(2)) says, “There will no longer be a penalty if a ball played from the putting green hits a flagstick left in the hole.” Players will still have the option to remove the flagstick or to have someone tend the pin and remove it after the ball is struck. But the USGA has been concerned about pace of play, thus the change. Also, most players these days don’t use caddies. On the PGA Tour, players like Bryson DeChambeau have already left the pin in. So, know your rules. Post your lowest score. And, maybe, just maybe, earn a little business while doing so.

In the biggest blow yet to Bayer/Monsanto, this week a California jury rendered a $2 billion (with a “B”) verdict to a husband and wife who both contracted non-Hodgkin’s lymphoma as a result of their use of and exposure to Monsanto’s Roundup glyphosate-containing herbicide. This verdict represents the third verdict for injured plaintiffs in the three cases that have gone to trial thus far. Thousands more of such cases are currently awaiting trial. Next up is a trial scheduled in August in Monsanto’s former back yard, St. Louis County, Missouri. This latest verdict comes on the heels of a March decision, in which a San Francisco jury decided an $80 million verdict for a man who blamed his cancer on his extensive use of Roundup, and an August 2018 decision where another San Francisco decided a $289 million verdict to a single plaintiff. On appeal that verdict was reduced to $78 million, and legal experts believe that this most recent verdict will likely be substantially reduced on appeal as well. Bayer/Monsanto are, of course, appealing each of these verdicts and toeing the company line that Roundup does not cause non-Hodgkin’s lymphoma, but it is important to remember that these companies have pulled out all the stops trying to protect their cash cow, from ghostwriting editorials that Roundup is safe to hiring the best legal resources money can buy. On top of that, Bayer/Monsanto maintains strict control over the “proprietary” nature of its Roundup product, making scientific analysis of the precise mechanisms of injury caused by the synergistic impact of the various chemicals in it exceedingly difficult. But what is clear that, despite these companies’ efforts, the American people are not buying Monsanto’s denials once they see the evidence for themselves regarding the link between Roundup and cancer. If you believe that you have contracted cancer from exposure to Roundup, you should contact an experienced attorney right away to explore the possibility of a claim.

On Mother’s Day when I walked into church, all of the mothers and grandmothers we were asked to come up with a word to describe themselves. The word we chose would be stamped onto a metal disc and made into a charm bracelet as a gift to celebrate us. Now it’s not so easy to sum your life in just one word. You want that word to be important and meaningful. Words are very powerful. The words you say can destroy or build a person. The words you say can make someone’s day good or not so good. My word…it had to be a powerful one. While sitting there staring at the card I was supposed to fill out, I asked my son for his guidance. “What is my word?” He responded “love”. Hmmm good one. But I just didn’t feel that was THE “word”. I continued to listen to the sermon spoken by the pastor’s wife.  She talked of women in the Bible who had not so good pasts, faced difficult trials, or grew up in unhealthy family situations. These same women came to Jesus to be restored. “Restore” yes!!! That’s the word for me!! No. That wasn’t my “word” either. I had to come up with one word, when I felt so many such as “unworthy”, “small”, “lost” etc. Then my word hit me...“Daughter”. You see, as I have walked through so many circumstances in my life, my “word” changed. Good words, bad words. However one thing that never changed was my status as a “daughter”. My challenges, weaknesses, happy times, victories, every single one of them I remained His daughter. And HE was there every step with me. My word is so strong because of who my Father is. My word, His “daughter” covers a magnitude of words. Including love. “Daughter”. Yep, that’s my word!

Recently, in McIlwain v. Saber Health Care Group (“Saber”), the Pennsylvania Superior Court voided an arbitration provision contained in a nursing home admission finding no lawful relationship between the signor of the agreement and the resident. Norman Franks suffered from a diagnosis of schizophrenia and dementia, and was incapable of making decisions on his own. The Superior Court of California granted Chalena McIlwain letters of temporary conservatorship of Franks’ person and estate. The temporary conservatorship was set to expire on July 31, 2013. On May 13, 2013, Franks entered Saber nursing home in Pennsylvania. McIlwain signed Franks’ admission papers in the space designated “Authorized Representative,” and the box next to “Conservator” was checked. Additionally, McIlwain signed a “Resident and Facility Arbitration Agreement,” which provided that the parties to the agreement would submit to arbitration if there was a dispute. On July 30, 2013, the Court of Common Pleas of Montgomery County, Orphans’ Court Division, appointed McIlwain as permanent guardian for Franks. On July 31, 2013, the letters of temporary conservatorship from the Superior Court of California expired. Franks was a resident at Saber from May 13, 2013 until September 18, 2016. During his stay at Saber, Franks suffered multiple falls and urinary tract infections. Franks died on October 24, 2016 after falling and hitting his head while living at Saber. On August 7, 2017, McIlwain filed a complaint against Saber alleging negligence, wrongful death and survival claims. Saber filed preliminary objections arguing that the dispute was subject to binding arbitration. McIlwain responded by claiming that there was no evidence the temporary conservatorship was transferred from California to Pennsylvania pursuant to the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), and therefore, the conservatorship was not valid in Pennsylvania. Saber argued that the conservatorship was valid, in part because of the Full Faith and Credit clause of the United States Constitution. The trial court sustained Saber’s preliminary objections as to the survival claims, and, therefore, bifurcated the survival claims and sent them to arbitration. The trial court overruled Saber’s objections pertaining to the wrongful death and negligence claims, finding that McIlwain did not agree to arbitrate her own claims against Saber. McIlwain appealed the court’s decision relative to the survival claims. In 2007, the National Conference of Commissioners on Uniform State Laws drafted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (Uniform Act) to specifically address jurisdiction and related issues in adult guardianship and protective proceedings, including problems relating to transferring a guardianship from one state to another and recognition of an out-of-state guardianship/conservatorship order. See Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (2007) at 1-2.5. Pennsylvania enacted its version in 2012 known as the UAGPPJA. 20 Pa.C.S. § 5901. “The Act applies only to court jurisdiction and related topics for adults for whom the appointment of a guardian or conservator or other protective order is being sought or has been issued.”The UAGPPJA provides two ways that an out-of-state guardianship/conservatorship can be recognized in Pennsylvania. Section 5922 provides for a transfer of the jurisdiction of the guardianship from another state into Pennsylvania. Section 5931 provides for an out-of-state guardian/conservator to register its guardianship/conservatorship order in Pennsylvania. In this case, McIlwain did not follow either procedure. Accordingly, the Pennsylvania Superior Court found that because McIlwain did not follow either of the procedures outlined in the UAGPPJA, the temporary conservatorship granted in California did not give McIlwain the authority to sign the arbitration agreement on behalf of Franks. The Court further found that the Full Faith and Credit clause of the United States Constitution is not offended, because the underlying judgment of incapacity is not disturbed upon following the procedures provided in the UAGPPJA. See 20 Pa.C.S. § 5922(g); see also § 5933(a). Nonetheless, this was not the end of the Court’s inquiry - it still needed to determine whether an agency relationship existed between McIlwain and Franks that would provide an independent authority for McIlwain to have executed the arbitration agreement on behalf of Franks. “Agency is the relationship which results from the consent of one person that another may act on his behalf.” Lincoln Avenue Industrial Park v. Norley, 677 A.2d 1219, 1222 (Pa. Super. 1996). “The creation of an agency relationship requires no special formalities.” Walton, 66 A.3d at 787. “The existence of an agency relationship is a question of fact.” Id. “The party asserting the existence of an agency relationship bears the burden of proving it by a fair preponderance of the evidence.” Id. An agency relationship may be created by any of the following: (1) express authority, (2) implied authority, (3) apparent authority, and/or (4) authority by estoppel. Express authority exists where the principal deliberately and specifically grants authority to the agent as to certain matters. Implied authority exists in situations where the agent’s actions are “proper, usual and necessary” to carry out express agency. Apparent authority exists where the principal, by word or conduct, causes people with whom the alleged agent deals to believe that the principal has granted the agent authority to act. Authority by estoppel occurs when the principal fails to take reasonable steps to disavow the third party of their belief that the purported agent was authorized to act on behalf of the principal. Walton, 66 A.3d at 786 (citations omitted) (emphasis added). “The basic elements of agency are the manifestation by the principal that the agent shall act for him, the agent’s acceptance of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking.” Walton, 66 A.3d at 787 (citation omitted). Here, the Court found that there was no express, implied, or apparent authority, nor authority by estoppel to establish an agency relationship between McIlwain and Franks in relation to signing the arbitration agreement. Specifically, the Court reasoned that authority for an agency relationship emanates from the words and actions of the principal, here, Franks. The Court found no facts to show that Franks was present when McIlwain signed the arbitration agreement or gave express consent to McIlwain to sign the agreement on his behalf. In fact, Saber states that due to Franks’ severe cognitive defects, he was incapable of making decisions on his own. In response, Saber claimed that McIlwain, by her words and conduct, held herself out as Franks’ agent and Saber was justified in relying on her words and conduct. Specifically, Saber alleges that because McIlwain signed the admission agreement, consent for physician care, and authorization and acknowledgement of receipt on behalf of Franks, she had apparent authority to sign the arbitration agreement. However, the Court determined that an agent cannot simply, by her own words, invest herself with apparent authority. Turnway Corp. v. Soffer, 336 A.2d 871, 876 (Pa. 1975). Such authority emanates from the action of the principal and not the agent. Id. Thus, the Court determined that because Saber did not rely on the words or conduct of Franks, no apparent authority exists. Additionally, the Court declined to assume agency by a mere showing that one person does an act for another. Walton, 66 A.3d at 787. “Agency cannot be inferred from mere relationships or family ties.” Wisler v. Manor Care of Lancaster PA, LLC, 124 A.3d 317, 323. Moreover, the Court found that Saber was not misled by any words or conduct of Franks. A party who deals with an agent must “take notice of the nature and extent of the authority conferred.” Wisler, 124 A.3d at 324. “Parties are bound at their own peril to notice limitations upon the grant of authority before them, whether such limitations are prescribed by the grant’s own terms or by construction of law.” Id. “If a person dealing with an agent has notice that the agent’s authority is created or described in a writing which is intended for his inspection, he is affected by limitations upon the authority contained in the writing, unless misled by conduct of the principal.” Id. Thus, the Court held that Saber had the duty to confirm the extent of McIlwain’s purported authority to sign the arbitration agreement as Franks’ agent at the time of reliance. Saber neglected to do so at its own peril. Therefore, the Court reversed the trial court’s order bifurcating the survival claims, and remanded for further proceedings.

Do you have dreams while you’re sleeping? Most of us do, although sometimes we can’t remember them. I don’t really think I dream that often, but I did have a funny one recently. I dreamt that my dog, Boo Bear, and I were in a dreary airport on our way to Las Vegas. Why I was taking him with me to Las Vegas I’ll never know. For some reason the ticket counter was in a very leaky, wet basement at the airport, and the airline worker who was checking me in already had my passport, which was completely torn up and in pretty bad shape for some reason. He approved me to get on the plane with my party of four, but I have no idea who the rest of my party were. As I turned to make my way to the boarding area, I discovered my luggage had mysteriously disappeared and I couldn’t find it anywhere. I also couldn’t figure out where I had to go to board my flight. The worst part of my “trip” to Vegas was I had to leave Boo Bear in the wet basement of the airport with a lot of other dogs who weren’t allowed to fly—one of them being a German Shepherd. Okay, so I’ll admit that’s a pretty silly dream, and what does it all mean? Our dreams come from our subconscious and, generally, they tell us something about ourselves. They can be about things we have experienced, our habits, our state of mind, future possibilities, etc. There is usually some meaning or explanation to our dreams, and they usually relate to something that we have been thinking about or doing within a day or so of having the dream. I love to travel and plan trips, and I’ve been to Las Vegas several times, so that part of my dream is not hard to figure out because I am always thinking of and planning the next adventure. Boo Bear is my elderly husky/buddy who sleeps in our room. Almost every night we have to get up around 2:00 a.m. or 3:00 a.m. to let him out to pee—hence the “wet” basement at the airport maybe? There was a story on the news last night about a family’s German Shepherd that had been missing for several years. The dog had been located thousands of miles away from its home and is now reunited with its family—this explains the German Shepherd in my dream. The other day I was wondering when my passport expired, so that’s probably why I dreamt about my passport, and the airline actually has lost my luggage before. So, as you can see, my dream is connected to things I have experienced in my life and things that are near and dear to me—like Boo Bear, travel, and my passport lol. Although I don’t usually remember my dreams, this one was very vivid, funny, and started my day off in a good way. It certainly didn’t have any really deep meaning. I’ll take my goofy, sweet dreams over a nightmare any day—or night.   Today's blog: Do you have crazy dreams while you’re sleeping? Most of us do, although sometimes we can’t remember them. Sheila had a pretty funny dream recently that she shares with us on the blog today!

If you watched my Bordas Beat session, you will know that I put on weight at Christmastime because I can’t say no to Christmas cookies. Saying that I ate three dozen cookies is probably a conservative number. The baby cream horns are my absolute favorite and probably the most fat-filled, but I can’t say that I turned down a sampling of all the other kinds either. Since I am going to the beach this summer, I have to get those Christmas cookie pounds off, so I thought I would try intermittent fasting. The optimal time for eating is between 10:00 a.m. to 6:00 p.m., but that doesn’t work for me since I don’t get home until around 7:00 in the evening, so I chose 12:00 p.m. to 8:00 p.m. It really wasn’t a hardship for me since I have never been a breakfast eater. The first week was a little difficult because I’m used to having a snack around 10:00 a.m. to hold me over until noon. After I got used to missing my morning snack, it hasn’t been bad at all. I drink the bulk of my water allotment in the morning, which helps with feelings of hunger. I don’t drink soda or juice because of the sugar content. Don’t forget that calories add up to weight gain, so even if something says fat free, it’s really not because most fat free foods have a high sugar content which turns into fat. If you’re a coffee drinker, unless you like it black, you’ll have to say goodbye to creamer or sugar during the fasting period. You also can’t eat everything in sight during your eight-hour eating window. The goal is to eat healthy. I find counting fat grams works best for me, but someone else might count calories instead. Everyone will find what works best for them. Just to put your mind at rest, you can have a cheat day. I allow myself one cheat day per week for one meal only. I also stay within my 8 hour eating period to keep my schedule the same every day. Although intermittent fasting is a good choice for me, it isn’t for everyone. If you are a Type-1 diabetic, suffer from any form of anxiety or have or have had an eating disorder, this is not a good choice for you. In any case, please check with your doctor before starting any kind of weight loss program to make sure your dieting plan makes sense and is safe for you. Your doctor may want to monitor your progress to make sure you stay healthy and get favorable results. From studies performed, if done correctly, the benefits of intermittent fasting can improve LDL and triglyceride levels, as well as lower inflammation and normalize blood pressure. It also regulates fat-regulating hormones. From all the positive things I have read, and since it’s relatively painless, I will be intermittent fasting for the rest of my life to maintain a healthier lifestyle. Once I reach the weight I want to maintain, I will have an entire cheat day. I’m finishing up my sixth week and have lost around 18 pounds with minimal effort. While I have lost my Christmas cookie weight, I thought I may as well go all out and get the rest of my unwanted weight off so I started back on the treadmill. I should be at my goal weight before I hit the beach. If you’re looking for a way to lose weight and not suffer overly much, try intermittent fasting. It’s definitely working for me. I feel better, I sleep better, my blood pressure is great, and best of all, I look better with the extra weight dropping off. Beach body, here I come!

Unfortunately, it seems that the day has long passed where being “a man (person) of your word” meant something. Have you ever wondered what you could do if somebody doesn’t fulfill their obligations? For me, to explain all the aspects of suing for a breach of contract would take up a lot of space. Contracts is a single class in law school, with many offshoots. However, the essential aspect of pursuing a breach of contract, is ensuring you have a contract that you can enforce. First, one must understand there are certain contracts that must be in writing to be enforceable. In general, some of the types of agreements that must be in writing include: those involving: the sale of an interest in real property (land and buildings), the sale of goods in excess of $500 (if it falls within the Uniform Commercial Code or UCC), leases of real property in excess of one year, residential construction and home improvement contracts and certain other specific types of agreements. Now if the contract is in writing or is the type that need not be in writing, what must you prove to enforce the contract? In short there must be 1) an offer, 2) an acceptance and 3) exchange of consideration. By consideration we mean one side must be giving something in exchange for getting something. Thus, a gift given or a promise to do something without receiving consideration back, is not an enforceable contract. Although, depending on the circumstances a promise can be enforced, the law of the contracts includes very specific elements that must exist if you are to enforce an agreement. The Restatement 2d of Contracts defines a contract as “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” Formation of a contract requires “a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.” Restatement 2d of Contracts, § 17 (2nd ed. 1981). The elemental aspects necessary to give rise to an enforceable contract are "offer", "acceptance", "consideration" or "mutual meeting of the minds." Schreiber v. Olan Mills, 627 A.2d 806, 808 (Pa. Super. Ct. 1993). There must be a meeting of the minds on all terms in a contract. Onyx Oils & Resins Inc. v. Moss, 367 Pa. 416, 420, 80 A.2d 815, 817 (1951). A meeting of the minds requires the concurrence of both parties to an agreement, or they have failed to operate an enforceable contract. DOT v. Pa. Indus. for the Blind & Handicapped, 886 A.2d 706, 713 (Pa. Commw. Ct. 2005). It is important to note that the phrase ‘meeting of the minds’ does not require a literal meeting, as the two parties do not need to have identical thought processes at the time of the bargain. 1-2 Murray on Contracts § 31 (2011). The use of such a standard would be unworkable, as it would be impossible to prove the subjective intention of either party at any time. Id. Under Pennsylvania law, the test for enforceability of an agreement is “whether both parties have manifested an intention to be bound by its terms and whether the terms are sufficiently definite to be specifically enforced.” Channel Home Centers, Div. of Grace Retail Corp. v. Grossman, 795 F.2d 291, 298-99 (3d Cir. 1986). Specifically, Pennsylvania uses a three-part test to determine whether a contract is enforceable: 1) whether both parties manifested an intention to be bound by the agreement; 2) whether the terms of the agreement are sufficiently definite to be enforced; and 3) whether there was consideration. Jenkins v. City of Schuylkill, 658 A.2d 380, 384 (Pa. Super. Ct. 1995). Except for when the law requires a written contract, the lack of a written agreement would not prevent a contract from being enforced, so long as the parties agree upon essential terms and intend them to be binding, "a contract is formed even though they intend to adopt a formal document with additional terms at a later date.” Johnston v. Johnston, 499 A.2d 1074, 1076 (Pa. Super. Ct. 1985). Hopefully, you have more information to enforce an agreement you have entered into with a person who is not a person of their word; whether it evolve from the purchase of used car listed in the newspaper or the brother in law who backs out splitting the cost of a family vacation. Hopefully, neither of those have or will occur to you, but if they do you will have a better understanding of what you need to have in order to enforce a contract when the person is not living up to their agreement.

A few weeks ago, Bayer shareholders delivered an unprecedented rebuke of Bayer’s management over Bayer’s $63 billion acquisition of Monsanto last year, expressing serious concern caused by management’s overconfidence in Bayer’s handling of lawsuits over Monsanto’s Roundup weed killer. The litigation against Monsanto was absorbed by Bayer as part of Bayer’s acquisition of Monsanto. The International Agency for Research on Cancer (IARC) an agency of the World Health Organization (WHO,) issued a report in early 2015 that said the pesticide, which is Roundup’s active ingredient, glyphosate, was “probably carcinogenic to humans.” A second report from the WHO and United Nations later clarified that glyphosate was “unlikely to pose a carcinogenic risk to humans from exposure through the diet.” However, eating Roundup residue is one thing but spraying glyphosate over many years is another and the early litigation on Roundup has involved plaintiffs who were heavily involved in the spraying of Roundup. Last month, a jury rendered an $81 million damages verdict to a man who claims the Roundup weed killer caused his cancer. In a similar ruling last year, a separate jury assessed damages to a cancer victim from Roundup at $289 million, reduced to $78 million on appeal. Since that first verdict, Bayer’s shares have lost 40% of their value. And Bayer AG’s chief executive officer on Friday said the company currently faces 13,400 Roundup suits as he defended the Monsanto acquisition to shareholders. According to one corporate law expert, Bayer’s Chief Executive Officer has nine months to prove he shouldn’t be kicked out as a result of last year’s Monsanto acquisition, the time when Bayer sets the agenda for its next annual general meeting, after which dissident shareholders can file counter motions against management.

You have been in a terrible motor vehicle accident and suffered severe injuries. Your attorney explained to you that you will need to repay Medicare for the medical bills they paid. After negotiations, you have agreed to a settlement amount with the other driver’s insurance company. Your lawyer informs you that the adjustor now says the funds will not be issue without Medicare being listed on the check or a letter from Medicare that confirms the medical lien has been resolved. The adjustor explains his supervisor is concerned that the carrier will be sued by Medicare if the lien is not paid. Your attorney confirms that a settlement with Medicare may take some time. You have bills to pay and just want to get what was agreed to in the settlement agreement. Good thing you are represented by Bordas & Bordas, because we know the law that will force the insurance company to immediately issue the settlement check. Let me share the same with you. First, let me explain why the insurance company might be concerned with being sued by Medicare, if the carrier settles the claim with you. Pursuant to the Medicare Secondary Payer Act ("MSPA"), Medicare is a secondary payer meaning that Medicare can only pay bills not paid by a "primary payer." If Medicare makes a payment and a primary payer is identified, the primary payer must reimburse the United States. 42 U.S.C. §1395y(b)(2). The MSPA identifies an automobile or liability insurance policy as a primary payer. 42 U.S.C. §1395y(b) (2)(A)(ii). This means that if the insurance company has made a settlement payment and it is later discovered that Medicare had already made a payment for the same services or items, the insurance company which paid the settlement amount can be required to reimburse Medicare pursuant to regulations promulgated by the U.S. Department of Health and Human Services to implement the MSPA. Now let’s talk about why the insurance company cannot withhold the settlement proceeds when an agreement was already made without a requirement the check is made payable to Medicare and/or receiving a letter from Medicare confirming the lien is resolved before the money will disbursed. In Pennsylvania, the issue of whether a defendant can withhold payment of a settlement or verdict amount until Medicare issues a no-lien letter or the plaintiff waives future Medicare reimbursements for the injury is controlled by Zaleppa v. Seiwell, 9 A.3d 632. (Pa. Super. Ct. 2010). In Zaleppa, a personal injury case, the jury returned a verdict of $15,000 to be paid to the plaintiff. Id at 633-634. The defendant argued that the trial court erred in denying her post-trial motion that the court either order her to name Medicare, along with the plaintiff, as a payee on the verdict amount, or pay the verdict pending notification from Medicare notifying her that all outstanding liens had been paid. Id at 634. The Superior Court affirmed the trial court’s ruling, holding that the defendant’s statutory obligation under the MSPA to reimburse Medicare was “distinct from Medicare's statutory right of reimbursement.” Id at 638. Furthermore, the court interpreted that the MSPA’s statutory scheme was “not designed to enable private parties to act on behalf of the United States government as ‘private attorneys general.’” Id at 639 quoting Stalley v. Catholic Health Initiatives, 509 F.3d 517, 523 (8th Cir. 2007). The court held that it was Congress’s intent, based express language of the MSPA, “to bestow only the United States government with the authority to recover outstanding conditional Medicare payments.” Id at 639. “The MSPA expressly provides that only the United States government, not a private entity, may file a lawsuit in which the rights of the government are asserted.” Id. The court held that it was Congress' intent that the MSPA would only allow the United States government “to vindicate its own interests in reimbursement,” and that that intent “must be applied throughout the MSPA.” Id. Therefore, the court ruled that the prohibition of private parties acting on behalf of the United States government through the MSPA extended to all phases of litigation. Id. The Honorable Judge R. Stanton Wettick, Jr. of the Allegheny County Court of Common Pleas applied the Zaleppa decision in his ruling on a case with circumstances mirroring our client’s. Wimberly v. Katruska, 25 Pa. D. & C. 5th 532 (C.P. 2012). In Wimberly, plaintiff’s claims were settled for $9,000 in a telephone conversation between counsel. Id at 533. The defendant argued that, as a matter of law, the insurance company was entitled to withhold payment of the settlement until Medicare issued a no-lien letter, so as to avoid potential double payment. Id. Plaintiff petitioned the court to enforce the settlement. Id. Judge Wettick ruled that Zaleppa controlled the dispute, and that the defendant’s argument thatthe insurance company was entitled to withhold payment until Medicare issued a no-lien letter was “ without merit.” Id at 535. Critically, Judge Wettick found that “ unless there is a specific agreement conditioning payment on a no-lien letter, it is a matter of contract law that a defendant cannot subsequently raise new conditions regarding the payment that the defendant agreed to make.” Id. Judge Wettick then turned to the defendant’s second argument in opposition to Plaintiff’s Petition to Enforce Settlement, which was that prior to agreement being reached, the parties agreed thatpayment would “be conditioned on plaintiff's counsel obtaining documentation from Medicare stating whether plaintiff is currently receiving Medicare benefits and what, if any, benefits were paid that were related to the accident.” Id at 536. Plaintiff’s counsel denied having ever agreed to such a condition. Id. Judge Wettick applied the same analysis he used in a similar case, Exp. Boxing & Crating, Inc. v. Tech Met. 56 Pa. D. & C.4th 393 (C.P. 2001)(where the parties stipulated that a deal had been reached, and that the terms in dispute, “pro rata release” and “pro tanto” had never been used in any discussion). Id at 537. Ruling that the settlement agreement was a contract governed by general rules of contract interpretation, Judge Wettick held that “he common expectation is that a defendant will promptly pay the settlement amount.” Id at 538-539. Following that logic, Judge Wettick ruled that, “since the only dispute was over whether payment of the agreed-upon settlement amount was conditioned upon defendant’s receipt of a no-lien letter ,” the defendant had the burden of proving the same. Id. This is directly applicable to our hypothetical case. The MSPA prohibits private defendants from acting on behalf of the United States government during any phase of litigation. In Zaleppa, the Superior Court of Pennsylvania applied the MSPA to the post-trial phase of litigation by affirming the trial court’s denial of a defendant’s motion to add Medicare as a payee to the jury verdict. At the Allegheny County Court of Common Pleas, Judge Wettick applied Zaleppa to a settlement agreement, finding that, as a matter of law, the defendant was not entitled to withhold the settlement payment because he had not received a no-lien letter. Critically, Judge Wettick found that “unless there is a specific agreement conditioning payment on a no-lien letter, it is a matter of contract law that a defendant cannot subsequently raise new conditions regarding the payment that the defendant agreed to make.” Our hypothetical case perfectly mirrors Wimberly v. Katruska. During negotiation, there was no mention of a Medicare set-aside. The adjustor added this as a condition for payment after the agreement was reached. Therefore, it would be the carrier’s burden to prove that payment of the agreed-upon settlement amount was conditioned upon receipt of a Medicare set-aside. Once again, Bordas and Bordas would make sure the justice is achieved swiftly and the money would immediately be issued the client.