Yet Another Workers’ Compensation Act Proposed in PA Senate

by Karl Voigt

Yet another piece of proposed legislation is circulating in the Pennsylvania legislature. Senate Bill 1052 proposes that older occupational disease cases – with symptoms that may take years to manifest – be limited to the Workers’ Compensation system. As an example, asbestosis and mesothelioma cases would be brought back before Workers’ Compensation judges.
Senate Bill 1052 was prompted by a Pennsylvania Supreme Court case in which the court allowed for a civil suit in the court of common pleas when someone contracts a work-related disease outside of the 300 week “statute of limitations” for filing. Presently, if a worker discovers that he has contracted asbestosis more than 300 weeks from his last exposure, he must bring he case to the court of common pleas. It is not uncommon for a diagnosis like this to be made well after six years after exposure to asbestos.
For over 100 years, the Pennsylvania Workers’ Compensation Act has enforced a compromise between employers’ and employees’ interests. Namely, an injured worker can only sue for a work injury or disease inside the Workers’ Compensation arena, and damages are limited to medical bills and wage loss benefits. In exchange, the injured worker gets a system that works faster and more predictably than litigation in county court. This is called the “exclusive remedy”.
The Pennsylvania Workers’ Compensation Act presently disallows the filing of any Workers’ Compensation claim in the court of common pleas. These cases can result in awards for pain and suffering, whereas Workers’ Compensation cases do not allow for this type of award. This new bill, if passed, would limit claims to the less-remunerative Workers’ Compensation system.

You can find the text of the proposal here.

 

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Supreme Court Denies Certiorari in ANOTHER Second Amendment Case

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Once again the Supreme Court has denied certiorari in another Second Amendment Case. Silvester, et al. v. Becerra was an appeal from the 9th Circuit challenging California’s 10-day waiting period to firearm purchasers. In particular, the petition for certiorari raised the issue of whether the 9th Circuit “improperly applied lenient scrutiny in a Second Amendment challenge to the application of California’s full 10-day waiting period to firearm purchasers who pass their background check in fewer than 10 days and already own another firearm or have a concealed carry license; and (2) whether the Supreme Court should exercise its supervisory powers to cabin the U.S. Court of Appeals for the 9th Circuit’s concerted resistance to and disregard of the Supreme Court’s Second Amendment decisions.” (SCOTUS Blog Case Summary).

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Justice Thomas, once again, issued a scathing dissent from the denial of certiorari.  He noted that the analysis the 9th Circuit employed was “indistinguishable from rational-basis review.” For those readers unfamiliar with the levels of scrutiny, rational-basis is the lowest standard a court employs with respect to constitutional rights.

 …it is symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.

Justice Thomas continues “[i]f a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.”

Petitioners Jeff Silvester and Brandon Combs (Firearms Policy Coalition) brought suit challenging California’s 10 day waiting period under the Second Amendment, specifically that the waiting period was unconstitutional as applied to “subsequent purchasers”. The District Court entered a judgment for the Petitioners.

The District Court, after applying an intermediate scrutiny analysis, found that the waiting period was not reasonably tailored to promote an important government interest. It is at the District Court that findings of fact occur. The Court found, among other things, that twenty percent of background checks are auto-approved and took less than two hours to complete. Silvester v. Harris, 41 F. Supp. 3d 927, 964 (ED Cal. 2014). It also found that the arguments for the “cooling off period”, while novel, were inconclusive as to their effectiveness. Id at 954-955. The Court noted that the studies presented by the government, seemed “to assume that the individual does not already possess a firearm.” Id. at 966.

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California, unsurprsingly, appealed the decision to the 9th Circuit, which reversed the District Court’s judgment, upholding the 10 day wait period. The 9th Circuit, claimed to have applied intermediate scrutiny, but as Justice Thomas noted, “its analysis did not resemble anything approaching that standard.” Perhaps most egregious is that the 9th Circuit did not defer to the District Court’s findings of fact.

The Ninth Circuit’s deviation from ordinary principles of law is unfortunate, though not surprising. Its dismissive treatment of petitioners’ challenge is emblematic of a larger trend. As I have previously explained, the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment to the same extent that they protect other constitutional rights. (emphasis added).

The dissent shows Justice Thomas’s frustration with the Supreme Court’s continued denial of certiorari in Second Amendment matters. “The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.”

Time will tell if the Court opts to pick up a Second Amendment challenge in the future. Justice Gorsuch joined Justice Thomas in his dissent from the denial of certiorari in Peruta v. California, signaling that he too believes Second Amendment issues are ripe for discussion.

 

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After an Arrest in Pennsylvania, You Get a Free Phone Call, Right? Well, Not Exactly…

Having watched a lot of Law & Order, most individuals believe that upon arrest, they will be provided at least one free phone call but that isn’t exactly true in Pennsylvania.

Upon arrest, there is no immediate right to a phone call in Pennsylvania. Within a reasonable time of being arrested, the Police officer must either release the defendant or bring the defendant before a Magisterial District Judge to be preliminarily arraigned on charges.

What is a reasonable time? Unfortunately, this is has never been strictly defined in PA and has varied on a case by case basis. One day is generally accepted to be the longest acceptable time to be held without being arraigned.

Moreover, the police do have the authority to arrest people and then release them to be charged later by citation or summons. This type of arrest and release is only allowed in public drunkenness and DUI cases, or in cases in which the individual cannot immediately verify their identity.

There is no right to call anyone during that period of time.

If the police do choose to question a defendant, the individual’s Miranda Rights are implicated. The police must advise a defendant of those rights, including the right to counsel. If a defendant invokes his right to counsel (which you should ALWAYS do IMMEDIATELY, regardless of what the police threaten you with or promised to you), questioning must cease, although there are plenty of examples where the police or a different police officer continues asking questions. In our experience, in most instances, the police will simply end questioning upon invocation of counsel and will not give a defendant an opportunity to obtain counsel.

After the police prepare the charges, a defendant will be brought before a Magisterial District Judge for preliminary arraignment. A defendant does not have a right to contact anyone, including counsel, before or at arraignment. Some judges have also made it difficult for lawyers who know that their client has been arrested to appear at preliminary arraignment (we believe that this a violation of the 6th amendment but have never had a chance to litigate it).

However, after preliminary arraignment, a defendant does have a right to contact individuals, including his/her attorney. The Pennsylvania Rules of Criminal Procedure, Rule 540 states:

 (H)  After the preliminary arraignment, if the defendant is detained, the defendant shall be given an immediate and reasonable opportunity to post bail, secure counsel, and notify others of the arrest. Thereafter, if the defendant does not post bail, he or she shall be committed to jail as provided by law.

There is no case law interpreting this provision.

At this point, depending on the county, the defendant may be held in custody by the police, the sheriff or a constable. In our experience, the magisterial district judge will normally allow for multiple phone calls.

But, what if my attorney’s phone number is in my wallet or on my phone? Generally, a Judge will allow a defendant to review his/her cell phone or wallet for any phone numbers. We have also seen cases in which the Judge will allow a defendant to use a phone book or will direct court staff to do an internet search to get a phone number. We’ve also seen judges put a defendant in a room with a phone and tell them that they have 15 minutes to call whoever they want.

The only time that we have seen a defendant not be allowed to check their cell phone is if the phone may constitute or contain evidence of a crime. For example, drug dealers often exchange text messages about drug deals. A court would not give a defendant the chance to delete text messages.

So, while there is no obligation to allow a defendant to have access to a wallet or cell phone, the arraigning court does regularly allow it. Even if a defendant is not given that access, they can certainly use a phone book to look up their attorney’s number, or they can call a family member or have a family member call their attorney.

If you or someone you know has been charged with a crime, contact Prince Law Offices, P.C. today to discuss YOUR rights and legal options.

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Investing in Bitcoin – Cryptocurrencies

Clients have been asking me about investing in Bitcoin or other cryptocurrencies.  The Federal Trade Commission (FTC) recently provided some helpful advice.  ftc-seal

You do your best to keep up with the latest financial news. You’ve been hearing more about cryptocurrencies and asking yourself “Hmmm.” Of course, it’s not just Bitcoin. There are now hundreds of cryptocurrencies, which are a type of digital currency, on the market. They’ve been publicized as a fast and inexpensive way to pay online, but many are now also being marketed as investment opportunities. But before you decide to purchase cryptocurrency as an investment, here are a few things to consider:

  • Cryptocurrencies aren’t backed by a government or central bank. Unlike most traditional currencies, such as the dollar or yen, the value of a cryptocurrency is not tied to promises by a government or a central bank.
  • If you store your cryptocurrency online, you don’t have the same protections as a bank account. Holdings in online “wallets” are not insured by the government like U.S. bank deposits are.
  • A cryptocurrency’s value can change constantly and dramatically. An investment that may be worth thousands of dollars on Tuesday could be worth only hundreds on Wednesday. If the value goes down, there’s no guarantee it will rise again.
  • Nothing about cryptocurrencies makes them a foolproof investment. Just like with any investment opportunity, there are no guarantees.
  • No one can guarantee you’ll make money off your investment. Anyone who promises you a guaranteed return or profit is likely scamming you. Just because the cryptocurrency is well-known or has celebrities endorsing it doesn’t mean it’s a good investment.
  • Not all cryptocurrencies or the companies behind them are the same. Before you decide to invest in a cryptocurrency, look into the claims the company is making. Do an internet search with the name of the company and the cryptocurrency with words like review, scam, or complaint. Look through several pages of search results.

Read more about Investing Online.

Want to learn more about the technology underlying cryptocurrencies? See my earlier blog post Blockchain Technology Overview https://blog.princelaw.com/2018/02/07/blockchain-technology-overview/

If you or your business have legal questions or concerns regarding computer law, privacy, or cybersecurity law matters, contact attorney Jeffrey A. Franklin at Prince Law Offices.

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New PA Hunting Law Precludes Revocation of Hunting Licenses

Yesterday, Governor Wolf signed HB 359 into law, which will take effect in 60 days and provides protections for hunters, (1) where they mistakenly kill a bear or elk, (2) where they are erroneously hunting in the wrong area and take a game animal that is out of season, and (3) where the hunter is current on a payment plan established by a court.

Currently, in relation to revocation of hunting privilege, Section 930 provides:

All privileges granted by this title shall automatically be suspended if a defendant fails to respond to a citation or summons within 60 days or fails to pay all penalties in full within 180 days following conviction.

As a result of HB 359, Section 930 will now have a subsection (b), which provides:

(b) Payment Plan – If a Defendant is enrolled in a payment plan to repay penalties mandated by a court of competent jurisdiction and the defendant is making regular payments in accordance with the court’s mandate, the privileges of this title may not be suspended.

Also, Section 2306 – Killing game or wildlife by mistake – has been amended by including restitution amounts of $100.00 for any bear or elk that is mistakenly killed.

More importantly, Section 2742 – Period of Revocation – has been amended with a new subsection (c), which provides:

(c) Clemency from revocation.–The commission shall not revoke the privilege to hunt or take game or wildlife anywhere in this Commonwealth for an unlawful taking or possession of game or wildlife violation if all of the following conditions are met:
(1) The unlawful taking or possession of game or wildlife violation is the person’s first unlawful taking or possession of game or wildlife offense.
(2) The person complies with all of the procedural requirements set forth in section 2306(b)(1), (2) or (3) (relating to killing game or wildlife by mistake) concerning removal of entrails, tagging, reporting, delivery of carcass and providing a written, sworn statement.

(3) The unlawful taking of game or wildlife violation occurs during: (i) an open season within the applicable wildlife management unit for the species involved; or (ii) a closed season within the applicable wildlife management unit for the species involved, but only if there was an open season within an adjacent wildlife management unit for the same species.

(4) The person pleads guilty to the applicable unlawful taking or possession of game or wildlife violation charged.

(5) The unlawful taking or possession of game or wildlife violation does not involve a threatened or endangered species.

(6) There are no relevant aggravating circumstances present concerning the unlawful taking or possession of game or wildlife violation.

If you or someone you know has been charged with a game violation, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

 

 

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The 3rd Circuit holds debtors may sue creditors who offer to settle time-barred debt under the FDCPA.

Recently, the United States Court of Appeals for the Third Circuit, rendered an opinion in the class action, Michelle Tatis vs. Allied Interstate, LLC: John Does 1-25, No. 16-4022, clarifying whether time-barred offers from creditors to settle old obligations violated the Fair Debt Collection Practice Act (“FDCPA”). On appeal, the 3rd Circuit reversed a decision by the United States District Court for the District Of New Jersey granting Defendant’s Motion To Dismiss suit. Plaintiff, Michelle Tatis, commenced a class action suit against Defendant, Allied Interstate, LLC, alleging that a collection letter sent by Allied offering to settle her time-barred debt violated the FDCPA’s prohibition against using “any false, deceptive, or misleading representations or means in connection with the collection of any debt.” See 15 U.S.C. § 1692e. Tatis had a ten year old debt of $1,289.86 owed to Bally Total Fitness which Allied sought to collect by sending a letter offering to settle the obligation for pennies on the dollar.

In the state of New Jersey, the statute of limitations to commence a debt collection action is six years. Pennsylvania has a four year statute of limitations to commence a debt collection action. What that means is that if the 6 years, or 4 years in Pennsylvania, has passed since a debtor defaulted on his/her obligation to pay his/her debt, a creditor cannot sue the debtor to recover the debt. It does not mean that a creditor cannot offer to settle and that a debtor cannot voluntarily agree to repay the debt. A debtor may voluntarily agree to repay the obligation for personal reasons or a desire to honor the obligation. However, there is no legal threat to the debtor after the statute of limitations has passed. Whether or not an offer to settle misrepresents the legal status of a time-barred obligation is the focus of the 3rd Circuit’s Opinion.

In Tatis, Allied sent a letter after the statute of limitations had run stating: “[The creditor] is willing to accept payment in the amount of $128.99 in settlement of this debt. You can take advantage of this settlement offer if we receive payment of this amount or if you make another mutually acceptable payment arrangement within 40 days . . . .”

Tatis’ complaint alleged that Tatis interpreted the word “settlement” in the letter to mean that she had a “legal obligation” to pay the debt, and the least- sophisticated debtor would hold a similar belief. Tatis claimed that letter violated several prohibitions of the FDCPA including: §1692 e(2)(A), falsely representing the legal status of debt; §1692e(5), making false threats to take legal action that cannot be legally taken; and §1692e(10) using false representations and/or deceptive means to collect or attempt to collect a debt. Allied filed a Motion To Dismiss alleging that no threat to take legal action was made to Tatis by the settlement letter.

The U.S. District Court agree with Allied and held that an attempt to collect a time-barred does not violate the FDCPA unless it is accompanied a threat of legal action. District Court stated that the use of the word “settlement” in a letter did not constitute a threat of legal action. Finally, The U.S. District Court held that because under New Jersey law partial repayment would not revive the statute of limitations, the letter could not deceive or mislead a consumer into inadvertently reviving the debt.

The 3rd Circuit in reversing the District Court focused on the remedial nature of the FDCPA and the broad prohibitions set forth in the FDCPA by Congress to curb abusive, deceptive, and unfair debt collection practices. Because of the remedial nature of the FDCPA, its language is construed broadly to protect debtors. In addition, the “least sophisticated debtor” standard is used to determine whether any debt collection practices violate the FDCPA. The “least sophisticated debtor” standard is a very low standard which does requires a plaintiff to prove that he or she was mislead, but only that the least sophisticated debtor could be mislead.

The 3rd Circuit looked at several other court decisions involving similar settlement letters which found that offers to “settle” could mislead the least sophisticated debtor to believe that debt was legally enforceable in court. The 3rd Circuit agreed with its sister courts and held that in the specific context of a debt-collection letter, the least-sophisticated debtor could be misled into thinking that “settlement of the debt” referred to the creditor’s ability to enforce the debt in court rather than a mere invitation to settle the account. The 3rd Circuit concluded that the least-sophisticated debtor could plausibly be misled by the specific language used in Allied’s letter and vacated the District Court’s order granting Allied’s motion to dismiss. However, the 3rd Circuit would not go as far as to hold that standing alone, settlement offers and attempts to obtain voluntary repayments of stale debts constitute deceptive or misleading practices. Additionally, the 3rd Circuit declined to hold that the use of the word “settlement” is “misleading” as a matter of federal law or mandate the use of any specific language. The 3rd Circuit, in keeping with the text and purpose of the FDCPA, reiterated that any such letters, when read in their entirety, must not deceive or mislead the least-sophisticated debtor into believing that she has a legal obligation to pay the time-barred debt.

What it means for creditors is that they must very careful in drafting “settlement offers” for time-barred debt. A settlement offer cannot imply that a time-barred debt is legally enforceable. The 3rd Circuit believed the word “settle” could imply “concluding or avoiding a lawsuit.” Perhaps a disclaimer that no legal action can or will be taken if the debtor choses to voluntarily repay the debt.

With regards to debtors, if the language of settlement letter would mislead an unsophisticated consumer into believing that if he or she does not settle the time-barred debt he or she may be subject to suit, then that letter may violate the FDCPA. A debtor who receives a settlement letter may bring suit against the creditor. Under the FDCPA, a debtor may sue for actual damages, statutory damages of $1,000.00 per violation, and attorney’s fees so long as the suit is commenced within a year of the violation.

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York County Magistrate Judge Dismisses Charges of Making False Statements in Relation to Prior Putative Mental Health Commitment

Today, Attorney Eric Winter successfully argued for dismissal of charges before a York County Magistrate Judge. The charges were filed by the York County Sheriff in relation to a putative false statement our client made when applying for a license to carry firearms (“LTCF”).

In arguing that our client had not been committed to a mental institution, Attorney Winter argued that the recent decision by Federal District Court Judge Kim Gibson precluded any finding that our client had been involuntarily committed, regardless of any 302 commitment. Specifically, in Franklin v. Sessions, et al., Judge Gibson found that a Section 302 commitment under the Pennsylvania Mental Health and Procedures Act was not sufficient to trigger a federal disability.

After dismissing the charges, the Magistrate Judge asked the York County Sergeant who had filed the charges as to whether the “other cases, merely based on a 302 commitment, would be dismissed.” To our astonishment, the Sergeant replied that the charges filed against the other individuals would not be dismissed, as not everyone has a lawyer to defend against the charges. Thankfully, the Magistrate Judge stated that such was unfortunate, since he, as both an attorney and judge, was ethically bound to equally apply the law and that the established law precluded any individual from being charged for making false statement in relation to a 302 commitment. He went on to say that any charges filed against individuals for allegedly making false statements in relation solely to a 302 commitment would be dismissed.

Please join us in congratulating Attorney Winter and the Magistrate Judge in York County for ensuring that our constitutional rights are never infringed!

If you or someone you know has been involuntarily committed and are either under charges for making false statement or are now prohibited from purchasing and possessing firearms and ammunition, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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