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“Of all tyrannies, a tyranny exercised for the good of it’s victims may be the most oppressive… those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.” C.S. Lewis

I am cigar smoker, fan, and enthusiast. I enjoy cigar smoking so much that seven years ago myself along with nine other cigar smoking enthusiasts formed the Lehigh Valley Cigar Club. Our official motto is “To Promote And Protect The Enjoyment of Cigars In The Lehigh Valley Area”. We now have over two hundred members. Since then climate has changed dramatically.

On June 13, 2008, Governor Edward Rendell signed into law, The Clean Indoor Air Act, Act 27 of 2008. With some exceptions, such as a private residence (except those licensed as a child care facility), a private social function where the site involved is under the control of the sponsor (except where the site is owned, leased, or operated by a state or local government agency) and a wholesale or retail tobacco shop, the legislation prohibiting smoking in 95% of public places or workplaces.

Around the same time, Governor Rendell proposed a new tax as part of his 2009 budget plan, including the imposition of a 36¢ per ounce tax on loose tobacco and for every ten cigars. The proposed “sin tax” was overwhelmingly defeated by the state legislature.

On January 23, 2015, House Bill 202 was introduced and proposed to extend the Pennsylvania Clean Indoor Air Act to include a ban on smoking in “drinking establishments” in the state of Pennsylvania.

Governor Tom Wolfe also proposed, as part of his 2015 state budget, that cigars be taxed at 40% of the wholesale value. Governor Wolf’s proposed tax on cigars will drive the cigar industry out of Pennsylvania, which aside from Florida is the only state that does not tax cigars. As a result, Pennsylvania is home to four of the eight largest cigar distributors in the United States which provide thousands of jobs to Pennsylvania residents. A cigar tax that onerous could cost thousands of Pennsylvania residents jobs as their employers would likely move to Florida.

Proponents of the tax argue the tax will generate revenue while health advocates argue that it will reduce the number of smokers.  On its face, the two goals would seem to be at odds with each other as reducing the number of cigar smokers reduces the effectiveness of the proposed tax as a revenue generator.  However, the tax will have a minimal impact on the amount of smokers as those who choose to exercise their right to smoke will continued to do so but at a higher cost.  It is insulting to suggest that the proposed cigar tax is motivated by a higher good. The argument that tax will reduce cigar smoking is nothing more than a pretext to justify the tax. It’s just another way of saying we are taxing you for your own good.

“Happiness? A good cigar, a good meal, a good cigar and a good woman – or a bad woman; it depends on how much happiness you can handle.” –  George Burns

In the Declaration of Independence, Thomas Jefferson made his famous statement of a peoples’ inalienable right to “life, liberty, and the pursuit of happiness”. Historians have argued that Thomas Jefferson took the phrase from John Locke who used the phrase in his book “An Essay Concerning Human Understanding”. Locke believed that the pursuit of happiness is the foundation of liberty as it involves the freedom to make decisions that lead to true happiness, not necessarily decisions that give us immediate gratification, but true long term happiness.

The pursuit of happiness is the freedom to choose how one lives so long as it does not interfere with right of others to pursue happiness.  The legislature may not interfere with my right to smoke a cigar by a tax to generate revenue.  As a cigar smoker, my individual pursuit of happiness includes the right to choose to smoke cigars.

“If smoking is not allowed in heaven, I shall not go.” – Mark Twain

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FTC Can Regulate Cybersecurity

courtroomAugust 24, 2015, the United States Court of Appeals for the Third Circuit has issued a ruling in the Federal Trade Commission’s (FTC) favor in FTC v Wyndham 3d Cir (08/24/2015) (PDF) against organizations that employ poor IT security practices. The ruling was part of a lawsuit between the FTC and hotel chain Wyndham. This court decision affirms the FTC’s role as a digital watchdog with real-life teeth.

Federal Trade Commission Chairwoman Edith Ramirez issued the following statement in response to the ruling by the U.S. Court of Appeals for the Third Circuit, regarding the FTC’s case against Wyndham Hotels and Resorts for allegedly failing to reasonably protect consumers’ personal information:

Today’s Third Circuit Court of Appeals decision reaffirms the FTC’s authority to hold companies accountable for failing to safeguard consumer data. It is not only appropriate, but critical, that the FTC has the ability to take action on behalf of consumers when companies fail to take reasonable steps to secure sensitive consumer information.”

This decision affirms a federal district court ruling, which upheld the FTC’s authority to bring data security cases under the provision of Section 5 of the FTC Act that outlaws unfair acts or practices in or affecting commerce.

ftc_logo_430The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them.

The FTC sued the hospitality company and three subsidiaries, alleging that data security failures led to three data breaches at Wyndham hotels in less than two years. According to the complaint, those failures resulted in millions of dollars of fraudulent charges on consumers’ credit and debit cards – and the transfer of hundreds of thousands of consumers’ account information to a website registered in Russia.

In 2014, a federal District Court in New Jersey denied Wyndham’s motion to dismiss the FTC action. The Third Circuit agreed to hear an immediate appeal on two issues: “whether the FTC has authority to regulate cybersecurity under the unfairness prong of § 45(a); and, if so, whether Wyndham had fair notice its specific cybersecurity practices could fall short of that provision.”

If you are concerned about data security – and you should be – you’ll want to read the entire opinion. But the long and the short of it is that the Third Circuit upheld the District Court’s ruling that the FTC could use the prohibition on unfair practices in section 5 of the FTC Act to challenge the alleged data security lapses outlined in the complaint. The Court also rejected Wyndham’s fair notice argument.

Of course, the case is still pending before the District Court, but the Third Circuit ruling affirms important principles for how the FTC Act applies in the data security arena.

The decision is a must-read for business executives too.  The costs of not reasonably safeguarding confidential information continue to rise, underscoring the necessity for cybersecurity planning.

If you or your business have concerns regarding cybersecurity and the preservation of confidential information, contact attorney Jeffrey A. Franklin at Prince Law Offices, P.C.


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Police Recordings and the Right to Know Law

Earlier this month, Attorney Allen Thompson authored a post Yes, You Can Record Police Officers During The Course of Their Official Duty. The following day, the Commonwealth Court of Pennsylvania released its decision in Pennsylvania State Police v. Grove, 1146 C.D. 2014. The primary issue in Grove was whether the video recordings of interactions between law enforcement officers and members of the public in a public place were exempt from disclosure under the Right to Know Law (RTKL).


Grove had requested a copy of the police report and any video and/or audio taken by the officers at the site of an accident. The Pennsylvania State Police (PSP) denied the request for video and/or audio recordings claiming those recordings were exempt as records “pertaining to audio recordings, telephone or radio transmissions received by emergency dispatch personnel, including 911 recordings,” under Section 708(b)(18)(i) of the RTKL. In its denial, the PSP provided a verification that gave no description of the video or audio or the nature or purpose of the records, but only concluded that they were exempt from disclosure.

Grove appealed the decision to the Office of Open Records (OOR), the administrative agency that handles RTKL appeals. The OOR issued a final determination ordering the PSP to provide copies of the recordings to Grove, as the verification that PSP submitted was not sufficient to show the recordings were records exempt under Section 708(b)(18)(i). The PSP appealed the decision to the Commonwealth Court.

The Court, exercising its discretion to permit a party to enlarge the record on appeal and consider additional evidence, allowed the PSP to submit an affidavit. The affidavit established that there were two video recordings responsive to Grove’s request. Id. at 5. The first recording had no audio component, while the second one did. The second recording included interviews of the two drivers and bystanders regarding the accident. Id.

psp stop

More importantly, the affidavit set forth how the recording system is operated and the guidelines for its use. The recording equipment is activated and begins recording when a trooper activates his emergency lights or sirens. PSPs internal field regulations state that the equipment is to be used to document investigative work and also to record traffic and criminal stops, in-progress vehicle and crimes code violations, police pursuits, patrol vehicle travel when lights and sirens are activated, prison transports and other incidents the member deems appropriate while acting in performance of their duties. Id. at 6.

The PSP argued that the recordings were exempt from disclosure under Section 708(b)(16)(i) of the RTKL, which provides for the exemption of:

 A record of an agency relating to or resulting in a criminal investigation, including:

(i) Complaints of potential criminal conduct other than a private criminal complaint.

(ii) Investigative materials, notes, correspondence, videos and reports.

(iii) A record that includes the identity of a confidential source or the identity of a suspect who has not been charged with an offense to whom confidentiality has been promised.

(iv) A record that includes information made confidential by law or court order.

(v) Victim information, including any information that would jeopardize the safety of the victim.

(vi) A record that, if disclosed, would do any of the following:

(A) Reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges.

(B) Deprive a person of the right to a fair trial or an impartial adjudication.

(C) Impair the ability to locate a defendant or codefendant.

(D) Hinder an agency’s ability to secure an arrest, prosecution or conviction.

(E) Endanger the life or physical safety of an individual.

This paragraph shall not apply to information contained in a police blotter as defined in 18 Pa.C.S. § 9102 (relating to definitions) and utilized or maintained by the Pennsylvania State Police, local, campus, transit or port authority police department or other law enforcement agency or in a traffic report except as provided under 75 Pa.C.S. § 3754(b)(relating to accident prevention investigations).

The PSP argued that the recordings are “criminal investigative records because the accident to which they relate resulted in traffic citations, which are summary criminal offenses, and because one of the troopers investigated the accident before issuing the citations.” Id. at 8. The Court disagreed, finding that the PSP’s evidence demonstrated the recordings were “created to document troopers’ performance of their duties in responding to emergencies and in their interactions with members of the public, not merely or primarily to document, assemble or report on evidence of a crime or possible crime.” Id. at 9. Furthermore, the PSP uses the recordings to “document the entire interaction and actions of the trooper, including actions which have no investigative content, such as directions to motorists in a traffic stop or at an accident scene, police pursuits, and prisoner transports.” Id. The Court concluded that therefore the recordings were not investigative material or videos, investigative information or records relating or resulting in a criminal investigation exempt under Section 708(b)(16).

The Court did agree that some of the information contained on the recordings in this instance, such as witness interviews, are investigative information exempt from disclosure by Section 708(b)(16). However, that doesn’t prevent PSP from having to produce the record, they must do so with the information redacted. Id. at 10.

As such, even the video and audio recordings that the PSP make in the performance of their duties may be available under a RTKL request.

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Immigration Limbo – Some Problems with Immigration Courts and Immigration Policy defines the word “limbo” as – a place or state of oblivion to which persons or things are regarded as being relegated when cast aside, forgotten, past, or out of date. I move to have l-i-m-b-o stricken from the English language and replaced by i-m-m-i-g-r-a-t-i-o-n c-o-u-r-t.

Notwithstanding personal, politicized opinions about Immigration in the United States today, I think we can all pretty much agree that our advanced legal system is premised on operating, at all times, and with respect to all persons, in a certain Constitutional manner. One very central premise is the right to a “speedy trial”, enshrined by the Sixth Amendment or (alternatively) the right to prompt and fair trial guaranteed by the Due Process clauses of the Fifth and Fourteenth Amendments. Besides, the U.S. Constitution, the Magna Carta is largely believed to have voiced this right, so to did the Virginia Declaration of Rights of 1776.

If the foregoing is true, and we all profess to take the Sixth and or Fifth Amendments seriously, then the question begs, what is going on in our Immigration Courts?!

Reports, on good authority, indicate an absurd degree of backlog where persons subject to removal/deportation wait, on average, some 612 days before a dispositive hearing on their respective cases! There are, at present, some 449,000 total pending cases! Now, if those numbers on their own don’t shock the conscience, it aught to also be considered that immigration detainees too have families, obligations, and (generally) lives but almost 32,000 of those 449,000 cases represent persons languishing in detention, held by Immigration Customs Enforcement (ICE). Yes, your math is correct – that means that the average immigration detainee spends almost 2 years in immigration detention awaiting hearing! The total number of pending and interminably back-logged immigration cases has gone up by about 50,000 each year since 2013. Granted, the time between “commencement” of a case and a final Immigration Court decision varies by state facility. Colorado appears to be the worse state for one to be subject to immigration proceedings in, with an average waiting period of 837 days (more than 2 years). Hawaii, by contrast, “boasts” an average waiting period of about 4 months. Pennsylvania is about half-way down the list, with an average wait time for hearing being slightly more than 1.5 years.

Now, to be fair, application of the Sixth Amendment to an Immigration Court context may be problematic. To my knowledge, there has been no case law suggesting that hearing on one’s immigration status (even deportation proceedings) can be, procedurally, classified as a criminal prosecution. Nevertheless, analogizing between the two in this regard (criminal law and immigration law) makes common sense. Subjection to either process involves the potential for one’s substantial deprivation of physical liberty, developing a “record”, etc. Thus, the underlying rationale for the Sixth Amendment “speedy trial” requirement appears to have same resonance in an immigration court context. Furthermore, subjection to the immigration removal process is quite often the result of earlier criminal processing.

What’s worse, is that there are a multitude of individual cases that blow that 2 year period, out of the water. See the case of one Michael Owino who was held in immigration detention for over 9 years awaiting disposition of his case:

The root causes for this glaring suspension of the Constitution are several: a perennial lack of funding, a severe shortage of judges, apathy, and lack of public awareness of this issue, to name a few. As of May this year, there were only 233 judges and only 58 Immigration Courts in the nation. Despite the Department of Homeland Security’s commitment to hire some 85 more judges by the end of this June, it is questionable whether those additions will make an immediate significant difference. Doubt is underlined by the fact that more than 100 immigration judges are slated for retirement throughout 2015. As a “national issue”, Immigration Law and the problems that plague its system of enforcement (especially detention), is often ignored or not understood by the media and/or general public. On this last point, the public can probably be forgiven, as immigration policy and law continues to be among the least transparent and most obscure areas out there. Additionally, in a post 9/11 world, immigration policy (for better or worse) and public willingness to tackle injustices therein, has generally become anathema. Unofficially, We the People have grown to have little problem assuming that immigration and terrorism are somehow inextricably linked and that, therefore, we should defer to whatever heavy-handed policy the federal government prescribes. The real statistics concerning immigration as a national security issue do not support this assumption. In 2009, an ICE report found that only 11% of detainees had committed any violent crime offense. The TRAC Immigration tool prepared by Syracuse University indicates that, at present, violent criminal offenders and national security threats comprise only slightly more than 5% of the total number of pending Immigration Court cases.

Before we delude ourselves into believing that this problem has no far reaching impact, beyond the lives of immigrant communities, let’s take a look at the expanding bill for the industrial-complex that has arisen to support the ever growing number of detainees. For fiscal year 2014, the White House requested $1.84 billion dollars to operate DHS custody of immigrants – A funding level that amounts to $159.00 spent each day last year, per detainee and well over $5 million dollars a day considering the total number of detainees nationwide. At present, DHS has budgeted for a daily detainee-bed capacity of 34,000 compared to a budgeted capacity of 18,000 back in 2004. What’s worse, private corporations have coopted much of the business of immigration detention, reaping huge benefits in the process. In fiscal year 2013, 244 state and county jails were contracted by the federal government to hold immigration detainees on behalf of ICE. In 2011, nearly half of all immigration detainees were held in privately owned facilities. The private corporations have also aggressively lobbied Congress to enact laws that a) make it easier for ICE to detain immigrants and b) extend the length of detention. The Associated Press has reported that, over the last decade, the three companies having the largest percentage of immigration detention contracts with the federal government, have spent more than $45 million in lobbying for such laws.

Although DHS/ICE have shown some commitment in recent times to re-calibrating their enforcement policies, to “go after” primarily those persons who present risks to national security or are violent felons (a shift emblemized by ICE’s Alternative to Detention Program), the chronic bloat to Immigration Courts has not been alleviated. And as has been discussed, administrative efficiency and cost aside, an appeal to Constitutionalism tends to prove that Immigration in the United States is a fundamentally broken system.

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What to do when you want your name changed?

Changing your name depends on your situation, where you lived over the past 5-years, and how old you are.

Changing ones name includes filing a petition, performing a change of name search, and publishing in a local newspaper and in the local law reporter.

To start, a petition must be filed in the County where they reside, which includes a Change of Name search. However, if you have not lived in the county that you are currently residing for 5-years then you need to perform a Change of Name search in each and every county you have resided in over the past 5-years and provide the proof of the search to the Court.

If, the Petitioner is requesting a Change of Name for their minor children and the minor children are under 12-years-old then no fingerprinting is necessary. If, you or the minor children are 12-years-old or older, then the minor children would need to be fingerprinted by the local Police Department.

All Counties have filing fees for the Change of Name petition. The filing fee will depend on what the county you live in charges for the Change of Name petition. Currently, Montgomery County, Pennsylvania, charges $148.oo dollars for a Change of Name petition, which does not include the cost of publishing.

After, filing the Change of Name petition, you would have to schedule a hearing. When the hearing occurs, depends on the County’s procedures, which usually are scheduled 30-days or 45-days later. The hearing would also go by the Judge assigned schedule, so it may take longer to have the hearing.

The next step the Petitioner would have to do is publish two (2) advertising of the pending Change of Name hearing. One must be published in the local County Law Reporter and one in a newspaper of local circulation in the County where the one who is seeking to change their name lives.

Depending on the local rules of the County where the Petition for Change of Name is filed will depend on how long the advertising must be published. Usually, the advertising must be published for 30-days. All Counties should and will give you time to publish and to get proof of publishing before the day of the hearing.

Once the advertisings are complete, proof of publication will be needed, and must be given to the Judge, in order to prove that the two (2) advertisings were in deed published.

If, the Change of Name Petition involves the biological father and mother then you must mail a copy of the Change of Name Petitioner and Order for Hearing by USPS Regular Mail and Certified Mail Return Receipt Requested. See 54 Pa.C.S.A. § 701

Any question or other legal problems, feel free to come see me at the Prince Law Offices, P.C. Pottstown Office, located at 2081 East High Street, Pottstown, PA 19464. It is always wise to have an Advocate fighting on your side, no matter what the legal issue is.


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Personal Injury 101

A Tort, is a where one deviates from the standard of care, from societies norms. It is an action that causes harm to a person or property. It is not a crime. Torts are civil actions. There are numerous Torts.

Personal Injury cases derive from the absence of acting reasonably, a failure of care, resulting in harm to a person and/or property, which is called Negligence. Negligence is a subset of a Tort.

The most common examples of Personal Injury cases are slip-and-falls, and car accidents.

In order to prevail in Personal Injury cases one must prove all the elements of Negligence.

Negligence consists of: (1) a Duty; (2) Breach of Duty; (3) Causation; and (4) Damages.

For example, one is out grocery shopping and slips and falls on a spill in the produce aisle. In order to prevail on a theory of Negligence, one must prove: that the store had a duty to clean up the spill; the store breached their duty by not cleaning up the spill; the injuries sustained were proximately caused from slipping on the spill; and there were damages from the slip-and-fall.

There are numerous areas to go into but this is just a brief overview.

With the example above, besides many other factors, landowners liability and ones who are in control of land, buildings, structures, etc., on the land, is determined by ones status. Whether one is an invitee, licensee, or trespasser, would trigger what duty the landowner and/or those in control of the land owe. Landowners, and those in control of the land, have a reasonable time cure defects on the land. Also, there is no duty to warn of open and obvious dangers.

With auto accidents, it usual depends on what type of insurance one has.

Under a limited tort option one can only receive economic losses, wage losses, medical expenses, and cannot seek recovery for pain and suffering, unless one pierces the limited tort threshold, regardless of who is at fault.

Under the full tort option, one can seek recover for everything included under limited tort, which also includes pain and suffering.

The majority of Personal Injury cases settle.

It is always wise to have an advocate on your side, so feel free to stop by our Pottstown Office in Montgomery County.

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We Agreed to A Mutual Divorce, But Now My Ex-Spouse Disappeared, What Do I Do?

We both agreed to a Mutual Divorce. Everything was going smoothly, the initial documents were accepted and filed. However, after the 90-day waiting period was up, my soon to be ex-spouse “defendant” disappeared. Defendant no longer will return any divorce documents; my calls; and did not update their address. It has been several months and I would like a divorce, what do I do?

Regarding domestic matters, no matter what one thinks, or is advised by family, friends, or whomever, it is always best to have an advocate on your side.

For starters, all is good, as long as the Divorce Compliant was properly served and documentation of the service was filed with the Court within 30-days. If not, then one may have to jump through some more hoops to get things filed and served.

As with anything regarding Family Law, the best approach is to always be agreeable. The more one fights and disagrees, the more it will cost, even if you are Pro Se.

Having the defendant basically disappear by moving, not updating you, and no longer accepting the divorce documents, nor returning calls is more common than one thinks.   This occurs for many reasons one of which is that the defendant simply does not care anymore, and does not want to be bothered, which is actually good.

As long as both parties lived separate and apart for two (2) years, this could even be while living in the same home, one can still get a no fault divorce, as long as the Divorce Complaint, if it was filed Pro Se includes a count for a Mutual Consent Divorce and Irretrievable breakdown Divorce, if not then one would have amend the complaint and reserve the complaint, which would take further steps to complete service since the defendant is no cooperating anymore and their whereabouts are unknown.

Original service of the Divorce Complaint can be served by: the Sheriff; Process Server; USPS Certified Mail and Regular Mail; or defendant can acceptance service.

Again, as long as both parties have lived separate and apart for two (2) years, one can still get their divorce by filing the necessary documents for an Irretrievable breakdown Divorce.

Once the correct documents are filed and twenty (20) days have gone by with no response from the defendant, by not responding or filing ones claims with the Court they are waiving there rights on those claims, ones divorce should be granted. However, it most be noted, that when the defendant, who is no represented, and does not respond or file anything with the Court, does not object to the divorce, some Judges have been requiring additional steps to grant the divorce.

And those additional steps are usually having the defendant agree to withdraw or stipulate to any, Equitable Distribution issues, or one must file a motion to withdraw any and all additional counts of the Divorce Complaint that do not pertain to the no fault divorce counts for Mutual and Irretrievable breakdown.

After the motion is filed, the defendant would have an additional thirty (30) days to respond. If, the defendant does not respond, then the motion should be granted and the divorce decree issued.

This is just brief blog on some problems with Mutual Divorces.

It is always wise to have an advocate on your side.

Feel free to walk in the Pottstown Office, located in Montgomery County, Pennsylvania.


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