In making a determination for an award of Child Support, with respect to a party’s work income, you can get the Court to consider more than the person’s wages or salary. According to Pennsylvania Rule of Civil Procedure 1910.16-2(d)(4):

“Ordinarily, either party to a support action who willfully fails to obtain appropriate employment will be considered to have an income equal to the party’s earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in earning capacity.”

Q: What does this mean for you if you have filed for support or need to modify a support order?

A: The other parent (or spouse, if its for spousal support/APL [alimony pendente lite]) cannot avoid his/her obligation by voluntarily reducing his/her income. The rationale is that the party has an obligation to the child (or spouse). When you have a child, your priorities must change and the law reflects that belief. For example, Father and Mother have a Son. Father owes Mother $1000 per month in child support for Son. Father decides he wants to quit his job and go back to school. Father goes back to school and then files for a modification of the Support Order because his monthly income has dramatically dropped. The Court, if Mother argues appropriately, will deny Father’s modification, however, because he voluntarily decreased his income. As a result, while his income is now $0 per month, the Court will examine the circumstances and likely assign him an earning capacity equal to what he was previously earning. Father will still be obligated to pay $1000 per month whether he is in school or not.

Q: What some other common examples of willfully failing to obtain appropriate income?

A: Other examples include (a) early retirement, (b) accepting a voluntary salary decrease, and© failing to make reasonable attempts to obtain new employment, if the other party lost his/her job.

Q: Will the Court assign minimum wage as an earning capacity?

A: Yes, definitely. If you are involved in a situation where custody is shared, you should consider this provision of the law. The opposing party should be working when he/she does not have the child. As I mentioned, children change people’s priorities. A parent must provide for his/her child and, within reasonable limitations, cannot spend his/her free time partying and having fun.

Q: What should I do if the other party subject to my Support Order may have willfully failed to obtain appropriate income?

Consult with an attorney. An attorney will be able to help you conduct the necessary research and structure your argument to convince the Court that it needs to utilize an earning capacity, rather than the other party’s current income. This is a valuable provision of the law and capable of holding irresponsible parents accountable for their obligation to the child (or spouse, in other support situations).

As you may know, we like to take the long view when representing our clients. We are concerned about what happens after our client gets weekly benefits or settles a case. Reeducation is an important option when planning for what happens after a work injury. Injured workers in Berks County now have a new option when it comes to reeducation. Specifically, Reading Area Community College (RACC) has opened the Gateway Center for Career Training, which hosts certificate programs in business occupational training and medical occupational training, which can lead to career opportunities in as little as six weeks.

Last year, these short-term programs produced more than 300 trained students. Many students have found jobs with local employers like Reading Hospital, St. Joseph’s Hospital, the Humane Society of Berks, and Exeter Ambulance.

No High School Diploma is required to attend these courses. The cost of the program is as little as $1595. Financial aid is available.

Naturally, before enrolling, one should consult with one’s doctor and counsel to determine if the plan is physically and vocationally suitable.

RACC can be reached at 800-626-1665.

https://racc.edu/CommunityEd/Occupational_Programs.aspx

From time to time, the question arises whether a BB, Pellet, or Air Gun is a “Firearm,” pursuant to 18 PA.C.S. 6101 et seq. Generally speaking, per 18 PA.C.S. 6102, a “Firearm” is “Any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable.”

However, under 18 PA.C.S. 6105, which identifies persons not to possess, use, manufacture, transfer or sell firearms, the definition of “Firearm” changes to, “As used in this section only, the term ‘firearm’ shall include any weapons which are designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon.”

In Commonwealth v. Schilling, 288 Pa. Super. 359 (1981), the issue arose as to whether a CO2 powered pellet gun fit the definition of a firearm under either 6102 or 6105. The Pennsylvania Superior Court held, “we nevertheless find that the CO2 B-B gun does not fall within the common and approved usage of the term “firearm.” Rather, this type of B-B gun is more like a spring-type B-B gun than an actual ‘firearm’ as that term is commonly used and understood.” Id. at 365.

As such, for purposes of 6101 et seq., a BB, Pellet, or Air Gun is not a “firearm.” However, the courts have consistently held that a BB, Pellet, or Air Gun does constitute a weapon. As such, bringing a BB, Pellet, or Air Gun onto school grounds does violate 18 PA.C.S. 912, Possession of Weapon on School Property.

This week I am providing a three-part series on the Implied Warranty of Habitability. Part I, posted on Monday, explained what the Implied Warranty of Habitability is and provided examples of actionable violations. Part II, posted on Wednesday, explained what someone can do if they are a victim of a violation of the Warranty. Part III will discuss the issue of damages associated with a violation of the Warranty and what you might reasonably expect to recover beyond the cost of any repairs.

For an explanation of what is the Implied Warranty of Habitability and a list of recognized examples of actionable deficiencies, please see Part I. Again, if you, a family member, or a friend are currently being subjected to any of these recognized violations of the Warranty or another defect that you believe rises to an equal level of disruption to your ability to live in the apartment, please call our office immediately. Do not delay.

Q: MY LANDLORD VIOLATED THE IMPLIED WARRANTY OF HABITABILITY, BUT I ALREADY MOVED OUT OF MY APARTMENT. CAN I DO ANYTHING ABOUT THE VIOLATION?

Yes. Most people have an aversion to confrontation. That aversion is heightened when you are dealing with the owner of your property. You may have fears that if you seek to enforce your rights under the Implied Warranty of Habitability your landlord will retaliate against you. You could get thrown out on the street or the landlord will make your life unbearable and complicated. As a result, a lot of people will either find a way to stomach through the defect or wait a long period of time until the landlord finally gets around to fixing the problem.

Nevertheless, your rights have still been violated. Even after the defect has been remedied, you are able to pursue an action for damages and may be entitled to several different types of damages. A list of potential damages follows below.

Q: WHAT CAN MY ATTORNEY SEEK ON MY BEHALF?

Excess Rent Paid. As I discussed in Part II, during the existence of the defect, you may withhold a percentage of the rent equal to the infringement on your ability to inhabit the premises. Well, even if the landlord remedies the defect, the landlord is not entitled to the amount of rent you could have withheld. As a result, even after the defect has been remedied, your attorney can seek a refund of the rent which was in excess of what you truly owed, given the presence of the defect.

Repair Costs. As I discussed in Part II, if you need to make repairs or alternative arrangements to manage the defect, you are entitled to reimbursement. An example of this may be if your heating system breaks in the winter and you are unable to heat portions of your home. If you are required to go and purchase space heaters, you may be entitled to recover the costs to purchase and operate the space heaters.

Other Costs. You may be entitled to other – what I call – inconvenience costs. For example, lets say the heat breaks in the entire house and cannot be repaired for two weeks. You are forced to move in your in-laws or into a hotel until the repairs are completed. You may be entitled to repair the cost of the hotel, irregular costs of gas during your commute to work, and other added costs to your family.

Emotional Distress. Success under this claim is extremely rare, but it is nevertheless available. If the landlord actions are disgusting and offensive enough, the court may award damages for the intentional infliction of emotional distress. The court punishes conduct that is both intentional and “extreme and outrageous.” At the very least, you will want to have your attorney explore the possibility of obtaining damages for emotional distress.

Q: CAN MY LANDLORD RETALIATE AGAINST ME?

No, your landlord cannot retaliate against you for exercising your rights. The landlord is contractually obligated to provide you with habitable premises. If you feel that your landlord is acting inappropriately or retaliating against you for forcing the landlord to uphold his/her contractual obligations, then contact an attorney immediately. A simple letter from an attorney reminding the landlord of the penalties for such conduct is often enough to resolve the matter and end the conflict.

Again, if you, a family member, or a friend are currently being subjected to any of these recognized violations of the Warranty or another defect that you believe rises to an equal level of disruption to your ability to live in the apartment, please call our office immediately. Do not delay.

This week I am providing a three-part series on the Implied Warranty of Habitability. Part I, posted on Monday, explained what the Implied Warranty of Habitability is and provided examples of actionable violations. Part II, today’s posting, will explain what someone can do if they are a victim of a violation of the Warranty. Part III will discuss the issue of damages associated with a violation of the Warranty and what you might reasonably expect to recover beyond the cost of any repairs.

For an explanation of what is the Implied Warranty of Habitability and a list of recognized examples of actionable deficiencies, please see Part I. Again, if you, a family member, or a friend are currently being subjected to any of these recognized violations of the Warranty or another defect that you believe rises to an equal level of disruption to your ability to live in the apartment, please call our office immediately. Do not delay.

Q: CAN I DO ANYTHING TO REMEDY THE PROBLEM IF I AM BEING SUBJECTED TO A VIOLATION OF THE IMPLIED WARRANTY OF HABITABILITY?

Yes, but for you to be able to take any action to remedy the situation, the court requires three things to occur: (1) you provide notice to the landlord of the problem; (2) you provide the landlord with a reasonable amount of time to remedy the problem; and (3) the landlord fails to remedy the problem. See below for an explanation of how you may subsequently remedy the situation.

Q: WHAT TYPE OF NOTICE IS REQUIRED?

A simple notice is all that is required. Notify the landlord, preferably in writing, of the defective condition and explain the steps you will take to remedy the defect, if necessary. This step is essential!

Q: WHAT IS A REASONABLE AMOUNT OF TIME TO ALLOW FOR THE PROBLEM TO BE REMEDIED?

The courts have not provided guidelines as to a what qualifies as a reasonable amount of time, nor could they realistically do so. A reasonable amount of time will depend entirely on the facts. A tenant with no heat in the heart of the winter will obviously be allowed to act independent of the landlord sooner than a tenant with no hot water in the middle of the summer. My recommendation is to protect yourself and consult with an attorney.

Q: THE LANDLORD FAILED TO MAKE THE REPAIR, SO NOW WHAT? WHAT CAN I DO TO REMEDY THE PROBLEM?

The tenant has a few options, including:

(a) Cancel the Lease: You may immediately terminate the lease and vacate the property. You will not be obligated to pay future rent. Please note, however, that if you terminate the lease, then you must vacate the premises.

(b) Repair and Deduct: You may repair the defect or hire someone to repair the defect. If you or someone else repairs the defect, then you may deduct the reasonable cost of the repairs from monthly rental payment(s). The total cost of the repairs, however, cannot exceed the value the rent remaining on the lease. In other words, if the monthly rent is $1000, the lease is for one year, and there are eight months left on the lease, then you cannot reasonably spend more than $8000 to make the repair.

(c) Withhold the Rent: You may withhold an amount of rent equal to the loss of use of the rental property. This may be difficult to determine and may even require a discussion with an expert. If you are going to withhold your rent, then please consult with an attorney on what percentage of your rent would be proper. The landlord CANNOT evict you while you are withholding the rent pursuant to a violation of the Implied Warranty of Habitability. While you are NOT required to place the rent in escrow, as a practical note, I strongly recommend that you do until otherwise advised by your attorney or the court.

(d) File a Claim for Damages: Will discussed next Monday in Part III.

Q: WHAT IF I DEDUCT THE WRONG AMOUNT?

If the court determines that there is a violation of the Implied Warranty of Habitability, but you withheld the wrong amount, then you cannot be evicted from the rental property if you immediately pay the landlord the owed portion of the rent. You should not be penalized and, because of the violation, will not be charged the court costs (different from attorneys fees).

Again, if you, a family member, or a friend are currently being subjected to any of these recognized violations of the Warranty or another defect that you believe rises to an equal level of disruption to your ability to live in the apartment, please call our office immediately. Do not delay. Part III will be published on Monday, August 9, 2010.

Most of the clients I meet with who are residential tenants are unaware of the fact that in Pennsylvania they are protected by the Implied Warranty of Habitability. In other words, they are unaware of the fact that their landlord has an obligation to make necessary repairs to the property and if the landlord fails to do so, then the tenant may take steps on their own to remedy the deficiency in the property. These steps may even include the tenant hiring someone to make the repairs and deducting the cost from the rent.

If you, a family member, or a friend are currently renting, or planning to rent in the near future, then I recommend reading on. This week I will provide a three-part series on the Implied Warranty of Habitability. Part I, today’s posting, will explain what the heck the Implied Warranty of Habitability is and provide examples of actionable violations. Part II will explain what someone can do if they are a victim of a violation of the Warranty. Part III will discuss the issue of damages associated with a violation of the Warranty and what you might reasonably expect to recover beyond the cost of any repairs.

Please note, however, that if you, a family member, or a friend are currently being subjected to a violation of the Warranty, I recommend that you immediately call our office and schedule an initial consultation. Violations are serious and the first priority is always to remedy the violation and make your home liveable again. Do not delay.

PART I – WHAT IS THE IMPLIED WARRANTY OF HABITABILITY AND WHAT ARE SOME EXAMPLES OF VIOLATIONS?

Q: WHAT IS AN IMPLIED WARRANTY?

An implied warranty means that it is included in the contract (or lease) regardless of whether it is expressly included in the language of the agreement. In other words, if the warranty is not mentioned anywhere in the lease, it still applies. The seller or the service provider are automatically bound by the warranty. You as the buyer are not required to take any action or include any language in the agreement in order to qualify for the protections of the warranty. You rent, you’re protected.

Q: WHAT IS THE IMPLIED WARRANTY OF HABITABILITY?

The Implied Warranty of Habitability was recognized by the Pennsylvania Supreme Court in 1979 in the decision Pugh v. Holmes, 384 A.2d 1234. At that time, Pennsylvania became the 40th state to adopt this particular implied warranty. It applies to all residential leases. In Pugh, the Supreme Court explained that the Implied Warranty of Habitability requires a landlord to “provide facilities and services vital to the life, health, and safety of the tenant and to the use of the premises for residential purposes.” It provides protections to the tenant that “at a minimum . . . means the premises must be safe and sanitary.”

It does NOT, however, require that the leased property be perfect. It simply requires that the property be safe, sound, and liveable. In other words, if you do not like the color the walls are painted or the presence of non-threatening spider-cracks in the plaster, the Warranty will not apply to you. It’s focus is on the essential necessities of a modern-day home: security, heat, water, absence of electrical and fire-hazards, acceptable plumbing, etc.

Q: CAN MY LANDLORD GET ME TO WAIVE MY RIGHT TO THE IMPLIED WARRANTY OF HABITABILITY?

No. Plain and simple. It is not waivable. [Fair v. Negley, 390 A.2d 240 (Pa. Super. 1978).

Q: HOW DO I KNOW IF A DEFECT VIOLATES THE IMPLIED WARRANTY OF HABITABILITY?

While I like to empower our blog’s readers and provide them ways to manage legal situations on their own, this time the only answer is: contact our office or another attorney. The Supreme Court has not provided an all inclusive list of violations, nor has it provided a clear-cut test for when something needs to be repaired under the Warranty. As a result, it is best to consult with an attorney before taking any action under the Warranty.

The Pennsylvania Courts have provided a list of non-exclusive factors for a judge to consider when determining whether a defect is a violation of the Warranty. These factors include: (a) whether the defect is in violation of applicable Housing Codes, if applicable; (b) the nature and seriousness of the defect; (c) the length of time the defect has existed; (d) the effect of the defect on the safety and sanitation of the property; and (e) the age of the structure. An attorney will be able to determine how these factors apply to your particular defect.

Q: WHAT ARE SOME EXAMPLES OF VIOLATIONS OF THE IMPLIED WARRANTY OF HABITABILITY?

To provide some general guidance, however, below is a list of some of the defects in properties that the court system has recognized as violations of the Implied Warranty of Habitability:

(a) lack of hot water; (b) lack of heat; (c) leaky roof; (d) infestation (cockroaches, mice, and lice); (e) broken steps at the front and back doors to the property; (f) defective wiring; (g) defective windows; (h) overflowing toilets; (i) presence of lead paint; and (j) improper ventilation for a heating system.

Again, if you, a family member, or a friend are currently being subjected to any of these recognized violations of the Warranty or another defect that you believe rises to an equal level of disruption to your ability to live in the apartment, please call our office immediately. Do not delay. Part II will be published on Wednesday, August 4, 2010.

Almost always, when a new tenant signs a residential lease with a landlord, the landlord will require that the tenant provide a security deposit in addition to rent. The security deposit is held by the landlord and will be used by the landlord in various circumstances if the tenant fails at his or her obligations. The most common example of how a landlord uses the security is to reimburse the landlord for damage caused to the leased property by the tenant. Under Pennsylvania Law, within 30 days of the tenant moving out of the property or the landlord accepting a surrender of the property, the landlord must provide the tenant with an accounting of any amounts the landlord is keeping to reimburse for damage to the property and return the remainder of the security deposit to the tenant. If damage was caused to the property, the accounting should list the damage and the corresponding cost of the repairs.

Unfortunately, not every landlord strives for the gold-standard of professionalism. There are landlords who will generate bogus or exaggerated charges in order to keep a greater portion of your security deposit. These charges may include fabricated damages or even charges for services they would have employed regardless of the condition of the apartment (i.e., cleaning services).

Q: How can you protect yourself?

(1) When moving into a rented property, immediately inspect it! Note, in writing, all damage to the property that exists prior to your habitation. If something is borderline, make a note of that and include it in your inventory. Then submit a copy to the landlord. If the landlord refuses to make repairs or determines that a repair in unnecessary, at least you established that the issue existed before you moved into the property and you should not be charged for the problem once you move out.

(2) Take pictures! Lots of pictures! It is crucial that you take pictures of the property at two distinct points in time: (a) when you first move-in; and (b) when you first move-out. When you move out and have emptied the apartment, take pictures of all the rooms and hallways. In the age of digital photography, do not hold back. Photograph each area from multiple angles. This way, if, for example, the landlord submits a bogus charge against you for holes in the wall, you have proof that you were clearly not responsible for any holes in the wall. Please adhere to this recommendation! It is common for people to later regret not heeding this advice.

Q: What can I do if my Landlord has submitted bogus charges against me and retained my security deposit, in whole or in part?

(1) Contact the landlord and dispute the charges. If you have evidence that the charges of bogus, then provide copies (NOT THE ORIGINALS) to the landlord. Not all landlord who submit bogus charges are evil and the charge may have been accidentally included. A quick and private resolution can often be obtained.

(2) If, however, the landlord persist in withholding the security deposit, contact an attorney! You may be entitled to damages! For example:

A. Landlord/Tenant Act – This Act provides that if a landlord wrongfully withholds a tenant’s security deposit, in whole or in part, then the tenant is entitled to the entire security deposit plus the amount of the wrongfully withheld portion of the deposit. For example, if your deposit was in the amount of $1000 and the landlord improperly withheld $500, then you would be entitled to receive $1500.

B. Consumer Protection Laws – These laws apply to residential leases. If the landlord knowingly misrepresented that services, replacements, or repairs were needed if they were not truly needed, then the landlord has violated Pennsylvania’s Consumer Protection Laws. As a result, you could be entitled to receive actual damages, treble damages, and attorney’s fees!

As with all civil actions, there is a statute of limitations and failure to act within that time period could forever bar your ability to recover what is legally owed to you. Therefore, if you, a friend, or a relative, are renting according to a residential lease, please take steps to protect yourself. If you, a friend, or a relative have been burned by a landlord who subjected you to bogus charges and subsequently withheld your security deposit, please call our offices and schedule a free consultation immediately.

To the surprise of many clients, even though the sentencing guidelines do not specify that an individual will lose his license for 5 years for a 3rd DUI, in certain circumstances that may be the result. Pursuant to the sentencing guidelines, conviction for a 3rd DUI, depending on the level of intoxication, would result in either a 12 month or 18 month suspension.

However, pursuant to 75 PA.C.S. 1542, an individual who is convicted of his/her 3rd DUI, within a 5 year period, is labeled a “habitual offender” and loses his/her license for 5 years. 1542(a)-(b), (d). Even if the individual received Accelerated Rehabilitative Disposition (ARD) for the first offense and the record was expunged, that is still counted as a conviction for purposes of Section 1542. 1542©.

If the individual commits an additional offense, within a period of five years, after serving the 5 year suspension, that individual will serve an additional 2 year suspension for each subsequent offense. 1542(e).

These are issues that one must be cognizant of before deciding to get behind the wheel after imbibing. With the Penndot 5 year revocation, Penndot will not even issue a work driver’s license; hence, the individual will have to rely on other forms of transportation, even to and from work.

Last year, I wrote right here about a Business Insurance online magazine article that suggested to employers that they use Facebook as a tool. Namely, the article told them how they can spy on their injured workers. Sure enough, they are! We have seen an increasing number of employers easily getting formerly private information online.

The Business Insurance article suggests that employers can find evidence to use against an injured employee who claims that he can’t work. Namely, the article suggests that the photos and blog entries published by social networking sites be used to combat claims of disability. As an example, say an injured worker is an avid bowler who publishes that she’s competing on Thursday. She should not be surprised if a private investigator shows up to videotape her at the tournament.

While none of our clients have anything to hide, we do suggest that your Facebook entries consider the fact that ANYONE might read them. We don’t necessarily suggest that one “go dark” after a work injury but do, however, recommend minding the content one publishes to make sure it can’t be misinterpreted. Consider also studying your accounts privacy settings; who should be able to read your posts? Also be mindful whether that “friend request” from an attractive member of the opposite sex is truly genuine.

Today, in a 5 to 4 decision (the same Justices were in the majority as in DC v. Heller), the Supreme Court declared that the 2nd Amendment, the Right to Keep and Bear Arms, applies not only to the Federal Government, but also to the States. In the case of McDonald v. Chicago, Chicago had imposed, for the past 28 years, a law that prevented an individual from owning a handgun. Chicago’s rationale for the law was that it was a reasonable exercise of local power to protect public safety; however, the residents, who are constantly besieged by crime, successfully argued that the ban did little to prevent crime and violated the 2nd Amendment of the Constitution.

While many are confused by the ruling today, stating that they thought the issue was already decided in Heller, the difference is that the District of Columbia is not a state, but rather, a Federal District. As such, the decision in Heller did not decide the issue of whether the 2nd Amendment applies to the state through the 14th Amendment, as many other Constitutional Rights. Today in McDonald, the Court made clear that the States may NOT unreasonably restrict firearms; of course, the “reasonableness” of any law will be litigated for years to come and is not found anywhere in the text of the 2nd Amendment. Nevertheless, this is a victory for all gun owners across the U.S. I am sure that the next challenges that will arrive on the doorstep of the U.S. Supreme Court will involve California, New York, and New Jersey’s communistic regulatory schemes on firearm prohibitions, restrictions, and limitations.

It should also be noted that although Justice Sotomayor stated in her confirmation hearings that she was “pro-gun,” she joined in the dissent. This should definitely provide for some interesting questioning of recent Supreme Court nominee Elena Kagan during her confirmation hearings, which began today.

We sometimes receive calls from irate patients/clients, who have been told, by their treating doctor, that in order for them to obtain a copy of their own medical records, they must pay the doctors office a certain amount. Many individuals, understandably so, believe that the medical records are their own and not the property of the doctor.

Unfortunately, under Pennsylvania law, the medical care provider owns the records; however, the patient has an absolute right to access or obtain copies of the original medical record, which is consistent with HIPAA (Health Insurance Portability and Accountability Act). Nevertheless, neither Pennsylvania law nor HIPAA allows a patient to remove the original medical record from the medical care provider’s file.

While HIPAA precludes the medical care provider from charging the patient a fee for locating and retrieving medical records, the patient may be charged a reasonable fee, pursuant to HIPAA and Pennsylvania law. Pursuant to 42 PA.C.S. 6152, a medical provider cannot charge more than the following: 1. for pages 1-20, $1.00 per page; 2. for page 21-60, $.75 per page; 3. for pages 61 and thereafter, $.25 per page; and 4. the actual cost of postage, shipping, or delivery.

Also, a physician must keep your records for seven (7) years since your last treatment or visit. So, if it has been close to seven years since your last visit or treatment, you should call your doctor to learn of their retention policy and whether you can take the file before it is destroyed.

Most Claimants are surprised to learn that although a Workers’ Compensation Judge (WCJ) can issue a subpoena, he/she has no power to enforce it. Thus, the issue arises, what do you do if an insurance carrier or adjuster ignore a subpoena.

Pursuant to section 436 of the Pennsylvania Workers’ Compensation Act (77 P.S. 992), while the WCJ can issue a subpoena, only the Court of Common Pleas of that jurisdiction may enforce it. An attorney seeking to enforce the subpoena must file a Petition for Contempt of Court.

It may come as a surprise that few Workers’ Compensation attorneys have any experience handling civil actions in the Court of Common Pleas. As such, most Work Comp attorneys will merely ignore the non-compliance and beg the insurance carrier or adjuster to provide the records requested in the subpoena.

This isn’t the case when you choose Prince Law Offices, P.C. to represent you. We go to the mat for our clients and aren’t scared of filing a Contempt Petition in the Court of Common Pleas and asking the court to enforce the subpoena and grant attorney fees. This is the only way to truly protect our client’s interests and ensuring that the insurance carriers aren’t left unchecked. When you want an attorney who will do everything to ensure your claim and rights are protected, chose Prince Law Offices, P.C.

Under PA law, the police may stop any person to ask questions without any cause of suspicion. However, this “mere encounter,” according to our appellate courts, does not carry with it any particular obligation to stop. However, in the realistic day to day activities in which normal people are involved, most of us stop when asked by a person in authority.

However, if the person’s movement is restricted in any way, a seizure of the person has occurred. Such a seizure must be supported by “reasonable suspicion” of criminal activity.

Most of the time, people are stopped and asked for their identification. I always endorse having ID because the police many times detain a person until his or her ID is established, and most normal people have other things to do than argue with the police over this.

If the police run the ID and return it to the person, having found nothing to justify further detention, they will then mostly likely announce that the person is “free to leave.” This statement has become a judicially-approved method for the police to break off the initial encounter for which they now possess no reasonable suspicion for continued detention, and allows them to re-establish reasonable suspicion for detention on another ground. Thus, when they say you are “free to leave,” that is the last thing they hope you do.

When you make a motion to leave, they may very well start asking you other questions to establish separate grounds. Many times this can be as bald as, “Are you carrying anything illegal?”, or “Are you carrying anything that we should know about?”. Your best answer is to leave while saying, “I am not saying anything without my attorney.”

Never consent to a search. The courts have held that consent to any police action means that the police no longer have to demonstrate cause. It also frees them to search for anything they want without specifying the items for which they are searching. In any court action afterward, consenting to a search will put your attorney at a decided disadvantage.

The important thing to remember about all of this is that you should keep the card of your attorney handy and call the attorney if there is an encounter with the police. If arrested, the you should say nothing until you speak to an attorney. Just like the old saw about “name, rank and serial number,” every person should simply say that they wish to speak with their attorney before saying anything.

On my cards, I have printed on the reverse a short version of the above to remind my clients of what to do, as well as my cell phone number in case you find yourself in trouble. Phone the office for one to carry with you!

Any fan of Law & Order can recite the Miranda warning: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?” The Miranda warning is mandated by the Supreme Court to protect our right against self-incrimination. As a result, police officers are required to give a suspect, who is detained by the government (police officers), the Miranda warning before interrogating him or her. Failure to give the Miranda warning or failure to obtain an intelligent and voluntary waiver of the rights protected by the Miranda warning (for example, your right to have an attorney present during questioning) prior to interrogation will render the statements of the suspect, as well as any evidence obtained as a result of those statements, inadmissible in court.

Like most rules, however, there are exceptions to the exclusion of the inadmissible statements. The one relevant to this posting is the public safety exception. According to this exception, the Miranda warning does not need to read to a detained citizen when there is an imminent threat to public safety. The Supreme Court created this exception in United States v. Quarles, 467 U.S. 649 (1984). In Quarles, the suspect, who was being pursued by police, entered a local supermarket with a loaded firearm. When the police apprehended the suspect in the supermarket, he had an empty gun holster. Naturally, the police officer asked the suspect where he had stashed the firearm. The suspect directed the police officer to the firearm, which was located with some empty cartons, by motioning to the where the gun was located and stating, “the gun is over there.” The trial court, New York Appellate Court, and the New York Supreme Court all determined that both the statement and the gun were inadmissible in court because they were obtained before the suspect was given the Miranda warning. The Supreme Court reversed that decision on the basis of the public safety exception. The court held that the public safety exception to Miranda applies when there is a clear and present danger to the public safety and the state actor (police officer) reasonably believes the suspect has information which can end the emergency.

After authorities apprehended Faisal Shahzad, the accused Times Square bomber, they subjected him to extensive and thorough questioning before reading him his Miranda warning. Attorney General Holder has asserted that this was permissible under the public safety exception. That assertion will likely be challenged by Mr. Shahzad’s attorneys who will argue that an imminent threat, defined as a clear and present danger, to the public safety no longer existed when he was apprehended on the airplane, therefore rendering the statements, and any evidence obtained as a result of statements, inadmissible in court. Attorney General Holder is aware that the pre-Miranda questioning may face a legitimate challenge. As a result, Attorney General Holder would like to avoid any future challenge to the questioning of a terror suspect who is linked to an attempt at terrorism, so, consequently, he stated on Meet the Press last Sunday, May 9, 2010, that he wants Congress to expand the public safety exception. If Congress heeds Holder’s advice, then the expansion could have serious implications in criminal cases beyond the scope of “terrorism.” How “an imminent threat to the public safety” would be defined could theoretically subject a greater class of suspects, including genuinely innocent suspects, to opportunities where they may make self-incriminating statements which could later be used against them to obtain a conviction.

We will continue to monitor any developments and share them with our readers, but Prince Law Offices wants to know: how do you feel about a potential expansion to the public safety exception to the Miranda warning? Please comment below!