HB 80 Signed by Governor Corbett

Yesterday, Governor Corbett signed HB 80, which amended 18 Pa.C.S. § 6120, our firearm preemption statute, in several keys ways. Section (A.2) now provides:

A person adversely affected by an ordinance, a resolution, regulation, rule, practice or any other action promulgated or enforced by a county, municipality or township prohibited under subsection (a) or 53 Pa.C.S. § 2962(g) (relating to limitation on municipal powers) may seek declaratory or injunctive relief and actual damages in an appropriate court.

Further Section (A.3) provides:

Reasonable expenses.–A court shall award reasonable expenses to a person adversely affected in an action under subsection (a.2) for any of the following:

(1) A final determination by the court is granted in
favor of the person adversely affected.

(2) The regulation in question is rescinded, repealed or
otherwise abrogated after suit has been filed under
subsection (a.2) but before the final determination by the
court.

The definition section now includes:

“Person adversely affected.” Any of the following:

(1) A resident of this Commonwealth who may legally possess a firearm under Federal and State law.

(2) A person who otherwise has standing under the laws of this Commonwealth to bring an action under subsection (a.2).

(3) A membership organization, in which a member is a person described under paragraph (1) or (2).

“Reasonable expenses.” The term includes, but is not limited to, attorney fees, expert witness fees, court costs and compensation for loss of income.

These changes are substantial, as they now provide the ability to sue a municipality that promulgates an unlawful ordinance, even in the absence of enforcement, and obtain attorney fees and costs, even where the municipality rescinds its unlawful ordinance after the lawsuit is filed but before a final determination is made. These changes were in a large part related to the litigation that I handled in Dillon v. City of Erie and the accompanying criminal matters, where the City of Erie’s ordinance was found to be unlawful, yet the Erie 8 (as they became known), were required to defend against the criminal charges, without right to recoup their attorney fees, under Section 6120.

Although it is a misdemeanor of the 1st degree, pursuant to 18 Pa.C.S. § 6119, to even promulgate such an unlawful ordinance, most municipalities thumbed their nose at the Commonwealth by enacting such illegal ordinances. Now, both aggrieved individuals and organizations can bring suit against these municipalities to force them to comply with the law. It is unfortunate that it has come to this – where local government can violate state law, without any concern for prosecution; yet, the individual, if he or she violates the municipalities illegal ordinance, must fear prosecution. With Governor Corbett’s signature on HB 80, now municipalities can be held accountable for their actions.

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Settlement APPROVED in Philadelphia Class Action Lawsuit Regarding Disclosure of Confidential LTCF Information

I am proud to announce that today, Judge Jacqueline Allen signed a Final Order approving the settlement that was reached with the City of Philadelphia in the matter of John Doe, et al.,  v. City of Philadelphia, et al, Philadelphia Court of Common Pleas docket no. 121203785, stemming from the City’s posting and disclosing of what we alleged was confidential license to carry firearms (LTCF) information. You can download a copy of the original Press Release related to the Preliminary Approval – here. This was a collaborative effort between Benjamin R. Picker, Esquire of McCausland Keen & Buckman, Jonathan Goldstein, Esquire of McNelly & Goldstein, LLC, Jon Mirowitz, Esquire, and myself.

As a result of the Settlement, the City will pay $1.425 million to the class and will be separately responsible for the costs of administering the settlement. Further, and of similar importance, the City has agreed to a number of policy changes, which can be found starting on page 11 of the Settlement Agreement, including:

  1. Not to disclose LTCF applicant information either electronically or in-person;
  2. Annual training of the Philadelphia Police Department and Philadelphia License and Inspection Board of Review on the confidentiality of LTCF applicant information;
  3. Customer service training for the Philadelphia Gun Permit Unit;
  4. Posting a copy of the LTCF Application Notice on its website and where LTCF applications and appeals can be submitted or obtained, as well as, providing a copy to anyone who has his/her LTCF denied or revoked;
  5. The City will not require references on the LTCF application and will not contact any references listed on the LTCF application;
  6. The City will not require lawful immigrants or US Citizens with a US Passport to provide naturalization papers;
  7. The City will not require any applicant to disclose whether he/she owns a firearm during the LTCF application process;
  8. The City will not deny an application because the applicant answered “no” to any question regarding whether the applicant had been charged/convicted of any crime where the applicant received a pardon or expungement from the charge or conviction;
  9. The City will process all LTCF applications within 45 calendar days;
  10. The City will remit $15.00 to any applicant who is denied within 20 days;
  11. The City will not require LTCF applicants or holders to disclose to law enforcement that they have an LTCF, that they are carrying a firearm or that they have a firearm in the vehicle; and
  12. The City will not confiscate an LTCF or firearm, unless there is probable cause that the LTCF or firearm is evidence of a crime. In the event an LTCF or firearm is confiscated, the officer must immediately provide a property receipt, which shall include the pertinent information

A copy of the signed and filed Settlement Agreement can be downloaded – here. As the Final Order has not yet been docketed, it is not currently available for download. A copy of the Second Amended Complaint can be downloaded – here.

 

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New DUI Law That Affects Firearms Rights

I previously blogged about the Monumental Firearms Law related Decision from the Superior Court in relation to DUI. In Commonwealth v. Musau, 2013 PA Super 159, the Superior Court held that an individual who, during a first or second DUI, refused to provide blood or breath testing, could only be punished by a maximum of six (6) months in jail, although it is graded as a misdemeanor of the 1st degree. As the maximum sentence that could be imposed was six months, although graded as a misdemeanor of the 1st degree, such a conviction would not trigger the federal disability, pursuant to 18 U.S.C. 922.

Today, Governor Corbett signed SB 1239, which effectively changed section 3802, so that the maximum sentence that can be imposed upon an individual who, during a first or second DUI, refuses to provide blood or breath testing, is five years, which consistent with most misdemeanors of the first degree. Accordingly, those individual who are now convicted under the amended DUI Code will be prohibited under 18 U.S.C. 922 from possessing or purchasing a firearm, regardless of the sentence imposed.

Of course, there are constitutional questions of whether an individual’s Right to Keep and Bear Arms can be infringed in relation to non-violent misdemeanor crimes. If you have been convicted of a non-violent misdemeanor offense and wish to discuss what options you have to petition the federal courts or are facing a DUI related to a refusal to submit to chemical testing, contact us today.

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“What happens when I reach MMI and I have permanent restrictions?”

by Karl Voigt

Karl just answered this Pennsylvania workers’ compensation question on Avvo.com:

“What happens when I reach MMI and I have permanent restrictions? Its been a year since my work injury and i just had second IME and the report stated that I have reached MMI and that my restrictions are permanent. Does this mean that I keep receiving workers comp checks permanently since my employer never offered me a job?”

You posted this question around 2 AM. I’m going to gather that you have difficulty sleeping, probably as a result of your work injury. Hopefully, the answers you find here will at least put you at ease.  First, please note that there is no true “permanent” in workers’ compensation. The insurance company always has tools at its disposal to try and reduce the amount of benefits that you get. However, an insurance medical examination (IME) is by no means binding on your case. There will be no immediate effect on your wage loss benefits simply because you were subject to an examination by doctors chosen by the insurance company. It may in fact be far more important to know what your treating physicians say.  Nevertheless, during the course of your disability, your employer may actually offer you a position, reportedly within your physical limitations. The carrier could also hire a vocational counselor to opine that you are capable of returning to hypothetical jobs, such as security guard, telemarketer, or cashier. Please note that these are just examples.  Next, in about another year, after you have received 104 weeks of wage loss benefits, your employer may subject you to a different sort of medical examination: an impairment rating evaluation (IRE). This may result in your wage loss benefits being put on a 500 week clock.  As you can tell, there are many paths that your claim can take. While I never like to sound like a salesperson for lawyers, it may indeed be time to speak with one regarding these paths, with the hopes that you — and not the insurance company — play a role in choosing one.

To see the full question, go to: http://www.avvo.com/legal-answers/what-happens-when-i-reach-mmi-and-i-have-permanent-1935386.html?answered=true

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ARD 101

ARD means Accelerated Rehabilitative Disposition.

ARD is for first time non-violent offenders, or non-violent offenders, who have not committed any crimes in a decade or more, and with the latter it usually has to be a minor offense.

ARD is usually a one time chance for an alleged offender to pay fines, restitution if applicable, perform community service, and usually be on non-reporting probation. Once all conditions, requirements to complete ARD have been met, ones case is dismissed and then one can petition the court to expunge their record.  Wipe the slate clean so that one can pass a criminal background to get a job.

Unfortunately, there are no set guidelines in Pennsylvania regarding who is eligible for ARD.  ARD eligibility is determined by the District Attorney in each and every county of Pennsylvania, that’s right, there are different standards for ARD eligibility in each and every county.  ARD is also determined on a case-by-case basis.

However, the usual custom for most counties is for one to waive their preliminary hearing and speedy trial rights.  The Speedy Trial Rights are waived because District Attorneys are overwhelmed with a mountain of ARD applications and it takes a long time in some counties to make a determination.

If, one has a preliminary hearing than one will beyond a doubt not even be considered for ARD.  Although, some counties will still allow one to get ARD if one has a preliminary hearing as long as one has a very good reason to have one.  But, it would be a rare and a long shot to get ARD, if one had a preliminary.

Community service, fines, and cost associated with ARD are determined by the charge or charges and circumstances of the case.

ARD is not a conviction.  ARD simply holds ones charge or charges in limbo until ARD is successfully completed.

Once ARD is successfully completed one can petition the court to expunge their record.

One can go it alone, or the best way is to have an advocate on your side.

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At-Will Eviction Term in a Residential Lease for One-Year Term

A residential lease is usually for a term of one year. There are other terms, like month-to-month leases, or six-month terms, or even a term for over a year.

Usually, the terms between the landlord and tenant are memorialized in a contract, called a lease.

The lease is a mixture of several areas of law. It is governed by the Landlord and Tenant Act of 1951, 68 Pa. Stat. Ann. § 250.101; Contract Law; Property Law; and Equitable Remedies.

If, one were to sign a lease for one year residential lease and unbeknownst to one who signed the lease there was an At-Will eviction term, say stating that for any reason the landlord can evict the tenant for any reason as long as notice of eviction is given thirty days in advance, this term would not be enforceable.

One can only be evicted from a residential lease that is for a certain period of time, before the term expires, is if the tenant violated a term of the lease.

Under property law, a month-to-month residential lease is a tenant at will and one can be evicted, or rather the landlord does not have to renew the month-to-month lease for any reason so long as notice is given fifteen days in advance. Some landlords give thirty days advance notice with month-to-month leases.

Landowners always have superior rights to tenants.

There is no self-help eviction in Pennsylvania. The only way to gain repossession of land is by eviction or ejection. Eviction is the usual way to remove tenants in a lease.

A month-to-month lease is a tenant at will, and it could be oral or written. Anything dealing with land should be in memorialized to satisfy the Statue of Frauds.

Again, with a month-to-month lease, once the month is up, the landlord for whatever reason can evict you, or simply give notice to vacate and it must be given at least fifteen days in advance. Notice must be given by: (1) hand delivering the notice, or (2) posted on your door. It cannot be mailed or emailed.

Remember, it is very simple to start the process by filing a complaint with MDJ where you live, whether one is a landlord or tenant, but it is always better to have an attorney on you side, especially if there is an appeal since that is when it really gets complicated.

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PA Firearms Law Seminar – November 1, 2014

On November 1st, 2014, Chief Counsel Joshua Prince and Attorney Eric Winter of Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., in conjunction with King Shooter Supply, will offer a four (4) hour seminar on state and federal firearms law at their store located at  346 E Church Rd, King of Prussia, Pennsylvania 19406.

The cost is $10 and you must register early, as last time it sold out fast. You can download a copy of the registration form, here.  All registrations are to be mailed or dropped off at King Shooter Supply, 346 E Church Rd, King of Prussia PA 19406. If you have questions, please feel free to contact King Shooter Supply at 610-491-9901 .

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