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LEGISLATIVE UPDATE – OCTOBER 2016

HB 380 known as Act 102 of 2016 (the “Amendment”) amends the Pennsylvania Domestic Relations Code (the “Code”) to authorize Courts of Common Pleas to enter divorce decrees on showing that (1) the marriage of parties is irretrievably broken and (2) the parties have lived separate and apart for at least one year. The Amendment is significant in reducing from two years to one year the separation of the parties and makes Pennsylvania law more consistent with adjacent states whose waiting period for no-fault divorce varies from six months to one year. Further, the Amendment allows the court to legally separate the divorce or annulment issues from the economic issues of the marriage by determining that there are sufficient economic protections for the other party and minor children of the marriage. This means that the parties may be divorced or the marriage annulled before they resolve or the court resolves property and other economic issues but the Amendment now adds the protections for minor children. Accordingly, the Amendment streamlines no-fault divorce proceedings by allowing a divorce more quickly to advance the public policy of not aggravating the parties in a longer proceeding. According to Pennsylvania Bar President Sara Austin, this Amendment “allow[s] the family to begin the healing process sooner.”

The Amendment does not reduce the amount of proof needed for a divorce and it enhances the proof needed to bifurcate divorce issues from economic issues. The parties can stipulate in pleadings and by affidavit the matters for showing the two elements for the no-fault divorce but if there is no consent of the parties, the court must conduct a hearing to determine the proof of these elements. Similarly, without consent of the parties to bifurcation, the court must determine the grounds for the divorce or annulment and conduct a hearing to determine whether the moving party has established compelling circumstances for the divorce or annulment and the sufficient economic protections for the other parties and the minor children.  The Amendment applies to divorce actions filed after the effective date of the Amendment. Governor Wolf signed the Amendment on October 4, 2016, and it takes effect 60 days later.

 

The Pennsylvania Supreme Court recently stuck down or enjoined enforcement of additional provisions of Act 13 of 2012 (the “Amendment”) thereby weakening the positions of oil and gas drillers and transporters in Pennsylvania who were the perceived beneficiaries of the Amendment. The Amendment amended the Oil and Gas Act, Act 223 of 1984 now codified at 58 Pa.C.S.A. §§  2301—3504 (the “Act”) by among other things, minimizing the land use provisions a local municipality may undertake to regulate oil and gas facilities, creating a gag order on health care professionals regarding chemicals in the hydraulic fracturing process, limiting notice by the Pennsylvania Department of Environmental Protection (“DEP”)  of spills to public water facilities and authorizing private corporations empowered to transport, sell or store natural gas or manufactured gas to seize subsurface private property to store natural gas.   In the case of Robinson Township, et al. v. Commonwealth of Pennsylvania, Public Utility Commission, et al., No. 104 MAP 2014, __A.3d__, J-34A-B-2016 (September 28, 2016) (“Robinson”), the Pennsylvania Supreme Court further considered the foregoing aspects of the Amendment. This 2016 decision follows the Pennsylvania Supreme Court’s 2013 plurality decision in Robinson Township v. Commonwealth, No. 63 MAP 2012, ___ A.3d ___, 2013 WL 6687290 (Pa. Dec. 19, 2013) (“Initial Case”) in which the Court struck down statewide land use regulations of the Amendment for Constitutional reasons, stating in the Initial Case that the General Assembly “has no authority to remove a political subdivision’s implicitly necessary authority to carry into effect its constitutional duties”. Id. at 34, 55. This restored to municipalities their prior right to zone oil and gas wells.

In the last Robinson case, the Supreme Court heard the case as an appeal from the Commonwealth Court and (1) affirmed the Commonwealth Court’s order enjoining enforcement of the Amendment’s fast-track procedures for the PUC and Commonwealth Court to determine if a municipal zoning ordinance violates the Amendment’s prohibition of local zoning of oil and gas wells because that prohibition was stricken in the Initial Case; (2) reversed the Commonwealth Court order by enjoining the enforcement of the Amendment as to limiting health professionals’ access to, and use of, information regarding chemicals used in the hydraulic fracturing process deemed confidential, proprietary or trade secrets by a vendor, service provider or well operator, for which a physician would have to sign a confidentiality agreement; (3) reversed the Commonwealth Court’s order and enjoined enforcement of provisions that requires DEP to notify only public water facilities of spills and not owners of private wells, staying that mandate for 180 days to give the General Assembly time to craft remedial legislation; and (4)  striking for Constitutional reasons and enjoining enforcement of section 3241 of the Amendment “which facially permits any private corporation empowered to transport, sell or store natural gas or manufactured gas in Pennsylvania to seize subsurface lands of a private property owner for the purpose of storing natural gas therein…” Robinson at 88.

© 2016 Robert J. Hobaugh, Jr.