Legal

When In Doubt, Don’t Tweet It Out

How Libel Law Has Caught up with Twitter These days, one can get in trouble with a single hashtag.  It is no secret that Twitter and other social media platforms are inundated with the lowest kind of discourse and outright hostile and malicious statements.  Though defamation law is hundreds of years old, it continues to […]

How Libel Law Has Caught up with Twitter

These days, one can get in trouble with a single hashtag.  It is no secret that Twitter and other social media platforms are inundated with the lowest kind of discourse and outright hostile and malicious statements.  Though defamation law is hundreds of years old, it continues to evolve.  You can defame someone with a simple retweet and a hashtag.  Despite its seemingly superficial limitations, Twitter is an incredibly powerful publishing tool when in the wrong hands that can cause a lot of havoc.

We need to look no further than 1600 Pennsylvania Avenue to see how a single tweet can ignite the entire media complex (and news consumers around the world) into an instant firestorm of amplified outrage, commentary, and in a lot of cases, sheer ignorance.

Some recent notable litigation over allegedly libelous tweets include:

Actor James Woods just filed a defamation lawsuit alleging $10 Million in damages in California state court against Twitter user @abelisted who tweeted that the actor was “a cocaine addict.”

Musician Courtney Love’s misguided use of Twitter has resulted in multiple suits being filed against her by various parties, resulting in settlements of hundreds of thousands of dollars over the years.

Singer Ciara filed a lawsuit against rapper and performer Future, alleging $15 Million in damages over tweets that Future published about Ciara surrounding the break-up of their marriage.

You don’t need to be a public figure or in the entertainment industry to end up on the wrong side of a defamation lawsuit. From your smartphone or desktop, you can publish short commentary about any person or thing to the entire world.  As of Q1 2017, Twitter claims 328,000,000 active users.

That’s a lot of potential users generating a lot of content.  Tweets can also reach a non-Twitter audience via television and more traditional online news reporting.  Look no further than the “Mean Tweets” segment on the late night TV show Jimmy Kimmel Live! And you’ll quickly see what I mean.

So what is libel, anyway?  Simply stated, libel is a defamatory statement published in writing. The form of the writing is immaterial – Twitter certainly qualifies as a written publishing platform that can deliver a libelous statement.  A defamatory statement is a false statement of fact that exposes a person to hatred, ridicule or contempt, causes him or her to be shunned or injures his or her business.  Here is where the cyber world and real world intersect: statements made on Twitter can incite the public to threaten or actual harm to a person in the real world.

It is important to note that statements of opinion are not statements of fact.  In other words, a statement that “Mr. X is a thief” could be defamatory, but a statement of “I think Mr. X is a thief” might not be defamatory, based on the circumstances.  You should not automatically assume, however, that simply labeling a statement as “your opinion” makes it so.

Different legal standards apply to private citizens and public figures.  Generally, more types of statements could be construed as defamatory when made against a private citizen than a public official.  In other words, a politician or movie star has less legal protection than a private person does in this area of the law.  It’s important to note also that one can defame a company or business by publishing a libelous or defamatory statement about that company’s goods or services.  This is called trade libel.

In Pennsylvania, a cause of action for defamation must be asserted within one year of its occurrence.  This is an unusually short statute of limitations.

If you believe that someone has made a libelous statement about you on any social media platform, contact your legal counsel immediately.   Many social media platforms, including Twitter, may opt to take down the alleged defamatory statements if your counsel can be persuasive.

If you are a novice at Twitter, here are Tuk’s Rules of Thumb:

1. Use Twitter to praise colleagues, business partners, sponsors, and fans.  Stay positive!

2. Think very carefully before making a negative statement about any person or company on Twitter, even if it’s 100% true.  It can take years and tens of thousands of dollars to resolve a Twitter Libel case – or any defamation case for that matter.

3. When in doubt, don’t tweet it out.

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Self-Driving Vehicles

The Good, the Bad, and the Inevitable As personal injury lawyers, we see the devastating impact of auto accidents upon individuals’ lives each day.  The arrival of self-driving technology brings with it the promise of safer roadways and fewer accidents, but it also presents challenges to numerous U.S. industries — including auto insurance, commercial transport, […]

The Good, the Bad, and the Inevitable

As personal injury lawyers, we see the devastating impact of auto accidents upon individuals’ lives each day.  The arrival of self-driving technology brings with it the promise of safer roadways and fewer accidents, but it also presents challenges to numerous U.S. industries — including auto insurance, commercial transport, and personal injury litigation.  So, besides safety, what other benefits do self-driving cars offer?  How badly will they affect jobs in the United States?  And when will they actually be here to use?  This article aims to answer those frequently asked questions.

What is the Benefit of Self-Driving Technology?

With the world seeming to progress at lightning speed in technological advancement, it bears asking – is this new technology helpful, or are we creating merely to create?  While self-driving technology presents challenges, the benefits it offers to society are undeniable.

Safety

There are about 30,000 fatal accidents in the United States every year.  When one considers alcohol, texting, or road rage, it is no surprise that 95% of fatal accidents are the result of human error.  Experts predict that self-driving vehicles will nearly eliminate those fatalities and dramatically reduce the number of non-fatal accidents.

Inclusive Transportation

With self-driving comes ride-sharing.  Gone will be the days of individual vehicle ownership.  Instead, consumers will summon a self-driving car whenever needed – much like Uber and Lyft, except no humans required.  Widespread ride-sharing will allow seniors to retain independence and provide accessible transportation for the disabled and other individuals who could not otherwise drive (including your kids who need to get to soccer practice while you are stuck at work).

Productivity

Ask any regular train commuter, and she will tell you why she prefers public transit to driving — “I can get work done.”  Self-driving cars will allow individuals to use their full commute time to finish a presentation, respond to emails, or simply fit in a much-needed power nap.  Added benefit: decreased stress and less road rage.

Will Self-Driving Cars Take Away Jobs?

Automated technology poses a threat to human jobs, and self-driving cars are no exception.  Some of the more obvious jobs threatened by self-driving technology include truck drivers, taxi drivers, bus drivers, and body shop mechanics.  Perhaps not so obvious, however, is the impact self-driving technology will have on other commercial industries, including auto insurance and personal injury litigation.  Those professions depend on the existence of auto accidents and resulting injuries.  As the motor vehicle accident rate approaches 0%, and fewer individuals own their own vehicle, consumers will find it difficult to justify spending hundreds of dollars per year on auto insurance premiums.  Indeed, some experts predict that the entire model of auto insurance will soon become archaic.

When Will Self-Driving Cars Become Universal?

The short answer: sooner than you think.  The long answer requires understanding each self-driving technology “phase,” of which there are four.  Phase 1 of self-driving technology refers to “passive autonomy, ” and it already exists throughout the consumer market.  Examples include blind spot warnings, automatic wipers, backup warnings, and driver-initiated cruise control.  Phase 2 refers to “limited driving substitution.”  Examples include assistive parallel parking and self-braking.  Many Phase 2 features have already become standard in today’s vehicles.

Phase 3 refers to “complete autonomous capability” – meaning the vehicle can completely drive itself, but a human must sit behind the steering wheel to intervene if necessary.  While Phase 3 vehicles have yet to reach the mass consumer market, several technology companies, including Google and Uber, have developed and are currently operating Phase 3 vehicles throughout the country.  Finally, Phase 4 refers to “100% autonomous penetration.”  Phase 4 requires no human interaction and is fully sensor driven.  Phase 4 vehicles will have no steering wheel, pedals, or mirrors.  All of the driving will be controlled by a computer, utilizing a combination of sensors, the internet, and GPS technology.  Many experts predict that Phase 3 vehicles will become fairly universal within the next 10-15 years, with Phase 4 autonomy following soon after that.  Of course, that timing depends on legislative regulation and consumer acceptance.

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A Legal Outlook at the Penn State Hazing Crime

The tragic hazing death of 19-year-old Timothy Piazza rocked the nation after harrowing details have been steadily revealed by countless news agencies in the last few months. Penn State is once again the center of controversy as many believe this young man’s death was preventable. Eighteen fraternity members have been criminally charged. Eight students face […]

The tragic hazing death of 19-year-old Timothy Piazza rocked the nation after harrowing details have been steadily revealed by countless news agencies in the last few months. Penn State is once again the center of controversy as many believe this young man’s death was preventable. Eighteen fraternity members have been criminally charged. Eight students face the most serious offenses including aggravated assault and involuntary manslaughter. The remaining students are looking at lesser offenses to include hazing or furnishing alcohol to minors.

Timothy Piazza died earlier this year, on February 4, after pledging Beta Theta Pi to a Penn State fraternity. A grand jury has concluded that young Timothy drank a life-threatening amount of alcohol during a hazing ritual which caused numerous falls. Security cameras at the house show he fell down a 15-foot flight of stairs shortly after binge drinking, then fell several more times into a railing, on the floor, and down the stairs again, according to the grand jury’s presentment. The members of the fraternity didn’t call 911 until nearly 12 hours after Timothy’s first fall. Timothy suffered severe head trauma, a shattered spleen, and ultimately succumbed to traumatic brain injury. A forensic pathologist estimated his blood-alcohol content between .28 and .36 percent approximately four times the legal limit for driving.

The most serious charge is aggravated assault. A person is guilty of aggravated assault if he or she attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under the circumstances manifesting extreme indifference to the value of human life. As charged, aggravated assault is a felony of the first degree. If convicted of aggravated assault, members face a maximum of 10 to 20 years in state prison. The other serious charge is involuntary manslaughter.

A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he or she causes the death of another person. Involuntary manslaughter is a misdemeanor of the first degree.  If convicted of involuntary manslaughter, members face a maximum of 2½ to 5 years in state prison.

Statutory Maximums, however, are just that – the maximum penalty that a judge could legally impose for the convicted crime. An individual rarely receives the maximum sentence that is discussed routinely on the news.

Yet, it is the simplest understanding of the wide range of potential outcomes. Sentencing involves numerous factors. In Pennsylvania, the trial judge is free to impose any sentence that they believe is appropriate given the nature of the offense, the circumstances of the defendant, and the needs of the community.  The judge will also take into account any aggravating and mitigating factors. In most cases, judges provide a minimum sentence within a set of guidelines. Guidelines provide suggestions for conduct so that an individual convicted in Allentown may be treated similarly to someone convicted in Pittsburgh or Harrisburg. A judge reviews these guidelines in determining the appropriate sentence.

Guidelines take into account the seriousness of the offense and the individual’s past history.  If a judge feels that probation is not appropriate, then the judge must give a minimum and maximum sentence. The minimum sentence would permit an individual a chance to be released at their minimum and then be subject to supervision until the given maximum. If convicted of these more serious offenses these students could certainly face significant jail time.

Each student convicted of aggravated assault could face a potential standard guideline range of 36-54 months if found to have caused serious bodily injury, or 22-36 months if found to have attempted to cause serious bodily injury as a minimum sentence. This is drastically different than a conviction for involuntary manslaughter. Involuntary manslaughter usually carries a standard sentence range between 3-12 months of minimum imprisonment. These guidelines assume that the student has no prior record. Hopefully, this offers a better understanding of the seriousness of the allegations against these students. Now, a jury will determine each student’s criminal culpability.

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interns

To Pay Or Not To Pay: The Internship Conundrum

Monica Lewinsky.  Darren, from Seinfeld.  That strange, quiet kid in the cubicle next to you all summer whose name you do not know and whose purpose you’re really not sure of.  Interns, some famous, some infamous, some nameless, can potentially cause significant problems for an employer.  Given that it is almost intern season, employers should […]

Monica Lewinsky.  Darren, from Seinfeld.  That strange, quiet kid in the cubicle next to you all summer whose name you do not know and whose purpose you’re really not sure of.  Interns, some famous, some infamous, some nameless, can potentially cause significant problems for an employer.  Given that it is almost intern season, employers should be mindful of some of the legal issues presented when they decide to hire an intern.

The initial issue faced by employers is whether the internship will be paid or unpaid.  As a general matter, under both state and federal law all individuals who perform work for a company are considered “employees” and must be paid at least minimum wage unless they fall within certain exceptions.  The exceptions include not only the independent contractor exception, which is the one most employers use and recognize but a specific exception for “unpaid interns.”  Accordingly, if an employer establishes an internship in accordance with specific requirements, it can be considered unpaid under the law.

While this sounds like a good idea for employers (FREE LABOR!) the hurdles an employer must overcome in order to establish an unpaid internship are significant.  As an initial matter, the primary beneficiary of the internship must be the intern.  This means that an employer cannot have an unpaid intern who merely answers phones, files documents, and gets the boss coffee.  Additionally, for the internship to be unpaid, it should be tied to a formal education program, the intern should not displace regular employees, there should be no guarantee of employment subsequent to the internship, and there should be an understanding (preferably in writing) with regard to compensation or the lack thereof.

In the event that an employer is able to meet all of the foregoing requirements, the internship can be unpaid.  Unfortunately for an employer, however, pay is not the only issue it will be presented with when hiring an intern for the summer.

As with all its other employees, paid interns are generally covered under both federal and state statutes which provide protections for individuals to be free from discrimination and harassment in the workplace.  Accordingly, an employer would be potentially liable for claims of harassment or discrimination brought by a paid intern which arose out of the internship.

Unpaid interns, however, were previously left out in the cold with regard to such protections.  In this regard, anti-discrimination statutes only protect “employees.”  Because unpaid interns are not generally considered employees under state or federal law, they have not traditionally been afforded any protections with respect to harassment and discrimination.

Notwithstanding the foregoing, several states have recently passed laws which provide protections to unpaid internships.  Pennsylvania, however, is not one of those states.  Nevertheless, this does not mean that employers are free to harass and discriminate against unpaid interns.  Courts have afforded unpaid interns protections under anti-discrimination statutes if they have received nonfinancial benefits that create or relate to career opportunities, such as free training and educational opportunities.  Given that most internships would provide free training or an educational opportunity, a Pennsylvania court may find that an unpaid intern is covered under the anti-discrimination statutes and, in turn, that an employer is subject to liability.

As such, whether an intern is paid or unpaid, employers must take all claims of harassment or discrimination seriously and conduct a thorough investigation.  A defense consisting of “I didn’t think they were protected, so I didn’t care” is unlikely to hold much weight with a court.

Finally, depending on the internship, an intern may be afforded access to an employer’s confidential or proprietary information.  Employers should not merely hope that an intern keeps such information a “secret” and does not discuss the information with his or her roommate over a game of beer pong.  Employers should take affirmative steps to protect any confidential or proprietary information which will be provided to an intern during the internship.

In this regard, employers should have interns execute non-disclosure agreements prior to the commencement of the internship.  The nondisclosure agreement will prohibit an intern from disclosing an organization’s confidential information to third parties both during the internship and after termination. Provided the nondisclosure agreement is not overbroad and is discussed with the intern prior to execution, a court will likely find such an agreement enforceable.

Employers are always tempted to hire interns during the summer.  Employers should be mindful that there is potential liability hiding around every “friend’s sister who needs an internship and says don’t worry, I’ll work for free.”  While not every internship ends in a Presidential impeachment, it can end it costly litigation for an employer.

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pets

Planning For Your Pets: Pennsylvania’s Stance on Pets and the Resultant Impact on Estate Planning

People often refer to pets as members of the family.  I am known to do this myself.  If my mom hints about grandchildren, I remind her that she has the sweetest, goofiest, most adorable granddog on earth.  However, Pennsylvania courts, like my mother, do not agree that my dog, Mimo, should be given the same […]

People often refer to pets as members of the family.  I am known to do this myself.  If my mom hints about grandchildren, I remind her that she has the sweetest, goofiest, most adorable granddog on earth.  However, Pennsylvania courts, like my mother, do not agree that my dog, Mimo, should be given the same treatment as a grandchild, no matter how much I love him.  Under Pennsylvania law, pets are considered property.

In 2002, the Pennsylvania Superior Court decided the case of DeSanctis v. Pritchard.  Following their separation, DeSanctis and Pritchard made an agreement, granting DeSanctis the right to visit their dog, Barney, the second weekend of each month.  This arrangement worked well until Pritchard moved and DeSanctis could no longer see Barney.  DeSanctis filed suit claiming breach of the agreement.  The decision that followed created what is now known as the “Barney Rule.”  Under this rule, Pennsylvania courts refuse to enforce custodial visitation or shared custody of pets. Instead, they consider pets to be personal property.

The Barney Rule not only affects divorce decrees, as in DeSanctis v. Pritchard but also estate plans. Unlike other personal property in your estates, like jewelry and furniture, if your pets outlive you, they will need food, shelter, and care.  Although you cannot leave money directly to your pets, you can make sure your pets will be well cared for, and you can do so in a number of ways.

A pet can be left to someone named in a will, just as personal property is bequeathed.  Those who select this method of caring for a pet posthumously, often also leave the beneficiary a sum of money in recognition of the costs that go along with pet ownership.   One drawback of using a will to provide for a pet is that a will must be probated.  Having a will can create a lapse between the testator’s death and the transfer of “property,” in this case, the pet.  Further, a will cannot create binding instructions for the care of the pet and cannot be enforced if you are still living, but unable to continue to care for your pet.
A pet trust solves these shortcomings and can be executed in one of two ways.  A testamentary trust creates a pet trust as part of a will, meaning the pet trust does not go into effect until the death of the testator.  An inter vivos trust, on the other hand, creates a pet trust that takes effect upon the grantor’s incapacity or inability to care for the pet, for example, upon admittance to a nursing home.  The force and effect of the pet trust will continue until the death of the pet for which it was created.  As with any trust, the pet trust must be funded and a trustee named.

A pet protection agreement is similar to a pet trust but without the need for an attorney.  Like a pet trust, the protection agreement can be enforced during the life of the owner and after his death.  Unlike a pet trust, a pet protection agreement does not require funds to be created.

For those who do not have friends or family willing or able to take responsibility for a pet upon their death or incapacity, the Pennsylvania SPCA (PSPCA) has developed the Guardian Surrender Program.  This program requires a copy of estate planning documentation evidencing a minimum bequest of $2,500.00 per pet to the PSPCA.  Upon the owner’s death, the PSPCA will then try to find a new home that meets the needs of the pet.

Despite Pennsylvania’s seemingly harsh stance on pets as personal property, these are four ways that you can ensure that your pets will continue to be well cared for and loved when you are no longer able to look after them.

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workers-comp

When the FMLA, ADA and Workers’ Compensation Law Intersect

The interaction of the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and workers’ compensation laws is notoriously complex.  The best way to handle the interaction of these laws is to know when each law is implicated and exactly what each law requires.  Once an employer understands when each of these laws […]

The interaction of the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and workers’ compensation laws is notoriously complex.  The best way to handle the interaction of these laws is to know when each law is implicated and exactly what each law requires.  Once an employer understands when each of these laws applies and what they require, it will be simpler to navigate their interaction.

Step 1: Determine Which Laws Apply.

The first step is to determine which laws apply.  To be subject to the FMLA, an employer must have at least 50 employees, within 75 miles.  If an employer has fewer than 50 employees, it does not need to concern itself with the requirements of the FMLA.  However, if an employer operates in a state that has a family and medical leave law, it must check whether the state law has a lower coverage threshold.  To be subject to the ADA, an employer must have at least 15 employees.  A smaller company should check whether a disability-related state law has a lower coverage threshold.  Workers’ compensation laws can apply to businesses with as few as one employee.  Workers’ compensation laws vary from state to state, so it is important for an employer to know what its state requires.

Step 2: Determine What Each Law Requires.

After determining which laws may apply, another step that is helpful in navigating the intersection is to master the basic leave rights employees hold under each law.

FMLA. The FMLA provides for 12 weeks of unpaid leave for an employee’s own or a family member’s serious health condition, for the birth or adoption of a child, and military exigencies. The law also provides 26 weeks of military caregiver leave. An employer must return an employee to the same or an equivalent position (with some exceptions). Leave may be taken in one block, intermittently or on a reduced schedule. To be eligible for FMLA leave, an employee must work for 12 months for an employer and work at least 1,250 hours in those 12 months.

ADA. The ADA prevents employers from discriminating against employees or job applicants because they are a qualified individual with a disability. The ADA does not explicitly provide leave rights. The ADA requires an employer to reasonably accommodate an employee or prospective employee with a disability, and leave may be considered a reasonable accommodation. A disability is an impairment that substantially interferes with a major life function or activity.

Workers’ Compensation.  Workers’ compensation laws generally do not provide job-protected leave.

Step 3: Analyze Each Situation Systematically.

Once an employer determines that it is subject to any of the above laws and understands what the purpose of each law is and what they provide, the employer can then apply that knowledge to the situation it may be facing.  When evaluating the unique facts and circumstances of a situation, an employer should follow these basic rules:

  1. Assess the situation under each law separately — It does not matter which law is applied first, but each law must be applied separately to determine the outcome under that statute.
  2. The law that provides the most benefit to the employee trumps — In some situations, one of the laws may dictate that an employer has no obligation to an employee, while another law may require a significant obligation.  As a general rule, the law that is most favorable to the employee must be followed.
  3. Re-evaluate the situation under each law when new information regarding the employee’s condition is received, or a deadline passes under one of the laws — This task requires excellent coordination.  Supervisors are usually the first to receive new information on an employee’s condition, while the office of human resources typically monitors deadlines under laws such as the FMLA.

Conclusion

While navigating through the intersection of the FMLA, ADA, and workers’ compensation laws may seem challenging at first, when approached and analyzed in a systematic way, resolution of the legal issues becomes more manageable.  A separate analysis of each law’s requirements under each situation will help avoid violations of the laws and, ultimately, potentially expensive and disruptive litigation.

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those people

How Can you Defend Those People?

I represent some bad people. It is what I do for a living. And I love it. Don’t get me wrong; I also serve good people, decent individuals who have made mistakes, who suffer from addiction, who have lashed out in anger or frustration. But the best part of my job involves the worst part […]

I represent some bad people. It is what I do for a living. And I love it. Don’t get me wrong; I also serve good people, decent individuals who have made mistakes, who suffer from addiction, who have lashed out in anger or frustration. But the best part of my job involves the worst part of our society. I have been counsel to violent criminals: burglars, drug dealers, rapists, and several murderers. I am often asked, “How can you defend these people?”

The answer illustrates one of the fundamental principles of our system and our nation. A system in which the government is restrained by its citizens.

The first ten Amendments to the United States Constitution are remarkable in that they were drafted as restrictions on government action. Strictly speaking, the Bill of Rights does not grant you anything. It was intended to shackle the government, to prohibit the government from interfering with rights naturally possessed by all.

For example, the First Amendment does not grant you the right to free speech or the freedom to practice your religion. It prohibits the government from interfering with these freedoms that all Americans have as their birthright.

Imagine if the right to an attorney and the right to challenge the government could be taken away from a citizen, based only on the seriousness of the allegations the government made against him.  How quickly would the government learn to lodge the most grievous charges against the most vulnerable among us?  The worst crimes imaginable do not deprive a person of their rights in our system of justice. The most reprehensible criminal is not stripped of his rights. Those rights are ensured to each of us precisely because they are guaranteed to all of us.

When the government tries to (or does) curtail, eliminate, or restrict your rights, there are checks and balances designed to push back against government action. The most effective of these controls on the government’s abuse is a private citizen with training in the law and a willingness to use that training to confront the government. When the government puts an unfair thumb on the scales of justice, a good attorney will not hesitate to put her thumb in the government’s eye. Our system allows this, even encourages it, because of the fear of that poke in the eye, the fear of the resistance of citizens, works to keep the government honest… for the most part.

If this ability to confront the government were eliminated, the government would run unchecked in any direction a leader might choose. History is filled with horrible examples of just this phenomenon. The rights you take for granted today would be eroded over time or simply erased overnight.

Part of what makes this system work is our judiciary; it allows and encourages challenges to the government. If and when they do their job faithfully, Judges assist in reigning in the worst excesses of government. But the real work is done by those lawyers who represent the worst offenders. Protecting against a systemic abandonment of the rights of the worst criminals guarantees the continued existence of a system that holds the government accountable every day.

So, before you enter your anonymous online comments, calling a criminal defense attorney a lowlife, degenerate, pond scum, idiot, poncy twit, or worse… Take a minute to reflect on what the government might do to you and your loved ones if there was no one to push back, no one to question an injustice, and no one to poke a thumb in the government’s eye when necessary.

You enjoy the rights that are fought for in our courts by our criminal defense attorneys. You live under the best system ever devised for balancing individual liberty with the best interest of the community. You prosper because citizens can, and do, challenge the government and force it to be more just. This system did not develop by chance. Our Founding Fathers intentionally created it, and it is fostered by those who understand their original intent.  The job of a criminal defense attorney is vital to our system of justice. So, when you ask me how I can defend those people, you are really asking me how I can protect you and your rights; how I can defend our system of justice. That is a question that should not need to be answered.

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auto

Non-Economic Damages: Understanding the Differences Between Full Tort and Limited Tort Coverage

In the Winter Edition, we discussed the importance of reviewing your automobile insurance policy to ensure that you have uninsured/underinsured motorist coverage (UM/UIM coverage).  Another important consideration is whether to select “full tort” or “limited tort” coverage. In Pennsylvania, motorists can choose either full tort or limited tort auto insurance coverage.  The coverage provided by […]

In the Winter Edition, we discussed the importance of reviewing your automobile insurance policy to ensure that you have uninsured/underinsured motorist coverage (UM/UIM coverage).  Another important consideration is whether to select “full tort” or “limited tort” coverage.

In Pennsylvania, motorists can choose either full tort or limited tort auto insurance coverage.  The coverage provided by these classifications is very different and, accordingly, so are the costs.  Motorists sometimes choose the limited tort option to reduce the cost of their auto insurance premiums.  However, it is important to know the differences between full tort and limited tort coverage before choosing coverage for yourself and your family.

Under limited tort coverage, a person who is injured in an accident is only permitted to recover his or her economic damages, such as out-of-pocket medical costs, lost wages, and monies to repair a damaged vehicle. Thus, by electing the limited tort option, you give up the right to pursue compensation for non-economic damages, such as pain and suffering, even in situations where someone else was at fault for the accident. While there are limited exceptions to this general rule, such as death, serious impairment of a bodily function, or permanent disfigurement, obtaining damages for pain and suffering under a limited tort policy requires significant litigation. Conversely, selecting full tort coverage entitles you and your family to claim non-economic damages, so long as you were not at fault for the accident.

It is difficult to anticipate the long-term effects that an accident can have on your health and wellbeing. What may initially feel like a little soreness or a non-serious back injury, may, over time, become a significant source of discomfort, or chronic, daily pain thereby limiting your ability to engage in activities you once enjoyed.  A limited tort policy may bar recovery for such non-economic losses.  The coverage decision by the named insured on the policy binds all other insureds, potentially preventing them from being fully compensated for any possible injuries suffered in an accident.  Such other insureds could include your spouse and any children or relatives residing in your household.  Your tort election additionally applies to any UM/UIM coverage on your policy.

Given the important differences between limited tort and full tort coverage, take this opportunity to review your auto insurance policy to determine your current tort election. Electing full tort coverage may increase the cost of your auto insurance premiums, but it will give you and your family the best coverage in the case of an injury.

Your insurance agent or lawyer can answer questions about whether you have sufficient coverage for your particular situation.  Many personal injury law firms will review your insurance policies free of charge.

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Got A Warrant?

U.S. Supreme Court Wreaks Havoc on Pennsylvania Drunk Driving Law On June 23, 2016, the United States Supreme Court made a landmark decision holding that, in general, police or states cannot punish a refusal criminally to give blood in DUI cases without first obtaining a warrant. In that ruling, the Supreme Court had three defendants […]

U.S. Supreme Court Wreaks Havoc on Pennsylvania Drunk Driving Law

On June 23, 2016, the United States Supreme Court made a landmark decision holding that, in general, police or states cannot punish a refusal criminally to give blood in DUI cases without first obtaining a warrant. In that ruling, the Supreme Court had three defendants appeal their convictions. The first defendant argued that it is unconstitutional to punish a refusal to give a breath test. The Supreme Court disagreed and held that a breath test is not invasive, keeps no evidence and therefore a warrant is not required. The second defendant argued the same for a blood test. In that case, the Supreme Court agreed and ruled in favor of the defendant. In summary, the Supreme Court stated that because the blood test is invasive, keeps evidence such as health evidence and DNA evidence; the police must first obtain a warrant or else the states cannot criminally punish the refusal. This decision was based upon the Fourth Amendment’s prohibition against unreasonable searches and seizures. The argument in favor of the police was that the evidence of blood alcohol content is dissipating quickly and therefore exigent circumstances permitted taking the blood without a warrant. The Supreme Court disagreed.

The third defendant, under the threat of criminal prosecution, if he refused the blood test, consented to the blood draw. He argued that that consent was not voluntary but coerced due to the threat of criminal prosecution if he refused. The Supreme Court agreed that his consent could be involuntary and therefore remanded the case for a hearing on that basis. How one’s consent to give blood in that circumstance could be anything but coerced is dubious, but it could be possible that a defendant gave the blood because he likes doing so…

Pennsylvania punishes refusals to give blood in DUI cases by either enhancing the mandatory minimum penalties and/or the grading and maximum penalties of the offense. As an example, a first-time offender is subject to a mandatory minimum three days in jail and a 12-month license suspension with a refusal, but would only be required to have six months of probation and a $300 fine if he was merely generally impaired by alcohol. A second offender would suffer a mandatory minimum of 90 days in jail and a maximum of five years for a refusal (or a BAC over .16), but a person with a second offense general impairment would only suffer only five days in jail and a maximum six months. A third offender with a refusal (or a BAC over .16), would have a mandatory minimum one year in jail, but without the enhancement only ten days.

Initially, Pennsylvania district attorneys were all over the board on whether or not Pennsylvania’s law was controlled by this Supreme Court decision. It has become universally accepted, after several motions being filed in various counties by the undersigned and other attorneys, that Pennsylvania’s law is unconstitutional because it punishes people who refuse the blood test more severely than otherwise would be punished. Therefore, in most cases, individuals who were charged with the enhancement of the higher tiers were being offered lower tiers and lesser penalties than what the law provided under the refusal provision.

Soon after the Supreme Court’s decision, PennDOT amended the form which is read to DUI defendants prior to requesting their blood. They took out the language in that form which threatened the enhanced criminal penalties. Two questions arise. One, does this cure the unconstitutionality and allow the punishment for the refusal or make a consent voluntary? It is this writer’s opinion that since the law is still in effect and people are presumed to know the law, the fact that they are not told of the enhancements at the time of the blood draw is inconsequential. They still are being coerced into giving the blood if they are aware of the enhanced penalties. (And it is still in the PA driver’s manual).

Second, does the change in the form create a problem on the license suspension for the refusal which is administratively given? The Supreme Court indicated that its decision only dealt with the criminal penalties and therefore any administrative suspension of a driver’s license was not affected by their decision. Pennsylvania law, however, requires that the form that is read to the defendants indicate that they will be punished more severely under the law if they refuse the test! Since the form does not comply with the law, it may be a fatal flaw in the administrative license suspension process.

In summary, in order for high tier alcohol DUI’s to be enforced in Pennsylvania, the following has to happen for Pennsylvania to comply with the Birchfield decision: 1. The Police must get a warrant before requesting blood; 2. they can do breath testing, or 3. the law must be changed. Absent this happening, defendants cannot be punished based on a refusal to give blood or due to the results of a blood test.

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Bye-Felicia

Bye Felicia

Landlord Tips for Kicking Trouble Tenants to the Curb Whether in the residential or commercial leasing context, it is nearly impossible for a landlord to avoid encountering a trouble tenant at some point in time.  Maybe the property owner agreed to enter into a lease with a questionable tenant against his or her better judgment.  […]

Landlord Tips for Kicking Trouble Tenants to the Curb

Whether in the residential or commercial leasing context, it is nearly impossible for a landlord to avoid encountering a trouble tenant at some point in time.  Maybe the property owner agreed to enter into a lease with a questionable tenant against his or her better judgment.  On the other hand, maybe the tenant was an ideal candidate on paper – high credit scores, solid references, and good moral character.  Regardless of the foregoing, a problem tenant will show his or her true colors eventually.  Unfortunately, there is not a foolproof method for vetting potential tenants, although running credit checks and obtaining appropriate financial information is always recommended.

The best protection for a landlord from a less than desirable tenant is a well-drafted lease agreement.  The basics are easy.  Where is the leased property located?  What is the rental amount and when is payment due?  What is the term of the lease?  Beyond these obvious provisions, the lease must be specific when it comes to the details of the leasing arrangement.  First, the lease must be clear with regard to the lessor’s and lessee’s respective obligations.  For example, who is responsible for maintenance and repairs to the property?  Who is required to pay the utilities and real estate taxes?  Second, the lease must expressly set forth the landlord’s remedies in the event that the tenant violates a provision of the lease.  What form of notice must the landlord provide to the tenant to notify the tenant that he or she is in breach of a provision of the lease?  Must the notice be in writing?  Must a written notice be delivered by a particular method?  How much time does the tenant have to cure the alleged breach of the lease?  If the breach is not cured within the specified cure period, what are the landlord’s remedies?  In the event of a breach in the nature of the failure to make payments when due, a lease may provide for the imposition of late charges or other penalties.  Further, with regard to monetary or other defaults, the lease may include a forfeiture provision permitting the landlord to terminate the lease and evict the tenant should a default persist past the cure period following proper notice.

All of the foregoing issues should be explicitly addressed in a lease agreement.  Most importantly, a forfeiture provision should be as specific as possible.  Even if a tenant technically violates provisions of a lease, courts are reluctant to allow a landlord to terminate a lease in reliance on a forfeiture provision unless it is abundantly clear that the landlord is entitled to such a remedy, based on the language of the lease itself.  Courts review forfeiture clauses with considerable scrutiny in both residential and commercial leases.  A lease must define what constitutes a default of its terms and under what circumstances such a default gives rise to a landlord’s ability to terminate the lease.  An unclear or otherwise poorly drafted forfeiture clause may leave a landlord stuck with a bad tenant.  When in doubt, a lease should err on the side of greater specificity, rather than risk vague language which may be subject to various interpretations.  A lease lacking attention to detail may prove to frustrate a landlord’s ability to regain control of his or her property from a problem tenant.  As the wise musical artist Drake once said, “If the devil’s in the details, then I’m Satanic.”

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