Tag Archives: Pennsylvania

Pennsylvania consumers protections under the Fair Credit Extension Uniformity Act

In previous blogs, I have discussed the protections provided consumers under the Federal Fair Debt Collection Practices Act (“FDCPA”). The FDCPA is a powerful deterrence to unscrupulous debt collectors and unlawful debt collection practices. The FDCPA is a comprehensive and reticulated statutory scheme, involving clear definitions, precise requirements, and particularized remedies. The validity of the underlying debt is not relevant or an issue under the FDCPA. There is no exception to liability for violating the FDCPA as a result of fraud on the part of the consumer. As long as the underlying obligation is a “debt” as defined b the FDCPA, the method of collections is irrelevant. The validity of the underlying debt is irrelevant as well.

The FDCPA “provides a remedy for consumers who are subjected to abusive, deceptive, or unfair trade collection practices by debt collectors.” A single violation of the Act triggers statutory liability and remedies. Under the FDCPA, a plaintiff may collect statutory damages even if he has suffered no actual damages. The FDCPA is essentially a strict liability statute, where the degree of the defendant’s culpability is relevant only in computing damages, not in determining liability.

Under the FDCPA, consumers are enforcing the FDCPA essentially acting as private attorney generals. Because consumers are acting as private attorney generals, an award of attorney fees is mandatory in an FDCPA case. That means that the FDCPA is essentially a fee shifting statute. If a consumer can demonstrates that the FDCPA has been violated, the consumer may recover actual damages, statutory, costs and attorney’s fees. The longer the lawsuit goes, the more the consumer can recover in attorney’s fees. The threat of an award of attorney’s fees is a very effective deterrent and leads to mean settlements early in litigation.

The FDCPA is not without its limitations. One of the biggest limitations of the FDCPA is that it only applies to debt collectors as defined by the FDCPA. It does not apply to creditors or assignees of the creditor when the assignment has occurred prior to the consumer’s default on the debt obligation. Attorneys acting as debt collectors are also included in the definition of debt collector under the FDCPA.

Typically when bringing a suit under the FDCPA, a consumer will name the debt collectors, and possible law firm and individual attorney hired by the creditor to collect on the debt for any violations of the FDCPA. However the creditor may not be named under the FDCPA.

From the perspective of obtaining the greatest recovery in a lawsuit, a consumer’s best option is to target the creditor as they usually have the deepest pockets. Under Pennsylvania’s Fair Credit Extension Uniformity Act (“FCEUA”), a consumer may also sue the creditor.

The FCEUA is Pennsylvania’s analogue to the FDCPA and applies to both debt collectors and creditors. A debt collector’s violation of any provision of the FDCPA constitutes a violation of the FCEUA which in turn constitutes a violation of Pennsylvania’s consumer protection law, the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). The FCEUA allows a consumer to sue the original creditor as well as the debt collector for any violations of the FCEUA. The FCEUA protections mirror the FDCPA’s protections.

The FCEUA also has a two year statute of limitations as opposed to the FDCPA’s one year statute of limitations. Finally, as the FCEUA is also a violation of the UTPCPL, a consumer may recover actual damages or statutory damages whichever is greater, costs and reasonable attorney’s fees. Under the UTPCPL, a court may also award treble damages. Again a very effective deterrent which can lead to early settlements.

Any action by a consumer for unlawful debt collection practices must include claims for violations of the FDCPA as well as the FCEUA. It allows the consumer to sue the creditor as well as include older violations.

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Endorsement – Craig Stedman for Superior Court Judge

Today, I am formally announcing my endorsement of Lancaster County District Attorney Craig Stedman for the Pennsylvania Superior Court. While some may be surprised with my endorsement of District Attorney Stedman – as I have been critical of him in relation to two specific matters – candidate Stedman provided me the unique opportunity to speak with him extensively about his positions and those matters, where I learned that my original criticism was misplaced, based upon a misunderstanding of his awareness of the situation, and which has resulted in me truly believing that he would be a phenomenal addition to the Superior Court.

In a conversation that lasted over an hour, we discussed everything from how his Office handles prosecutions of individuals who putatively make false statements on the ATF 4473 forms to preemption violations to self-defense claims and his ardent support for the Second Amendment and Article 1, Section 21. In relation to the one matter where I previously criticized him, I learned that he was not aware of the prosecution and as soon as he became aware, he immediately and personally reviewed all the evidence, sat down with Assistant District Attorneys in his Office that were involved and explained to them how it would be a manifest injustice for the prosecution to continue. As a result, he directed that the charges be immediately dismissed.

We also discussed numerous cases and decisions that he made, which clearly reflect his steadfast devotion to the Second Amendment and Article 1, Section 21. In this vein, I was genuinely surprised to leave our conversation with one overarching feeling – he sincerely cares about the Right to Keep and Bear Arms. I cannot honestly state the last time, in speaking with an appellate judicial candidate, that I left with anywhere close to that feeling.

While many of you are aware that I do not take the endorsement of candidates – especially judicial candidates – lightly, as I truly believe that District Attorney Stedman respects and will continue to honor the Second Amendment, as well as, our other constitutional rights, I am proud to endorse him for the Superior Court. As it is imperative that we only elect judges that respect the Constitution, which I wholeheartedly believe District Attorney Stedman does, I am respectfully asking that you vote for him in November. Together, we can ensure that our inalienable rights are protected.

To learn more about Craig Stedman for Superior Court, check out his website and Facebook page. Obviously, if you are in a financial position to be able to donate to his campaign, I am sure he would greatly appreciate support!

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Absent Additional Amendments, Oppose Senate Bill 383 Permitting Teachers To Carry Firearms In Pennsylvania

As our viewers are aware, I previously blogged about some of the issues with SB 383 in relation to permitting Pennsylvania teachers to carry firearms in schools. While some minor amendments have been offered in relation to it, there are still a plethora of issues, which preclude me from supporting it, even though I am highly in favor of arming our teachers. Since SB 383 will be up for a vote this week and some are attempting to preclude Senators from being fully aware of the issues with the Bill, I am setting forth all the issues with the bill below and asking that you please contact your Senator and demand that the Bill either be amended to address the below issues or that they vote nay on the Bill.

First, it requires the school official to have a license to carry firearms (“LTCF”). Why is this of concern? Well, SB 383 fails to consider that LTCF applicant information is confidential and not subject to disclosure; whereby, the disclosure of such information is a felony of the 3rd degree and permits civil penalties. Specifically, 18 Pa.C.S. § 6111(g)(3.1) provides:

Any person, licensed dealer, licensed manufacturer or licensed importer who knowingly and intentionally obtains or furnishes information collected or maintained pursuant to section 6109 for any purpose other than compliance with this chapter or who knowingly or intentionally disseminates, publishes or otherwise makes available such information to any person other than the subject of the information commits a felony of the third degree.

Section 6111(i) then provides, in pertinent part:

Confidentiality.  All information provided by the … applicant, including, but not limited to, the … applicant’s name or identity, furnished by … any applicant for a license to carry a firearm as provided by section 6109 shall be confidential and not subject to public disclosure. In addition to any other sanction or penalty imposed by this chapter, any person, licensed dealer, State or local governmental agency or department that violates this subsection shall be liable in civil damages in the amount of $ 1,000 per occurrence or three times the actual damages incurred as a result of the violation, whichever is greater, as well as reasonable attorney fees.

Second, the original bill did nothing to address the confidentiality of this information and how a school district is to protect the disclosure of this information. How is a school official to prove compliance with the provision requiring a license to carry? Will he/she be required to provide a copy of his/her LTCF? If so, to whom? Who will have access to that photocopy? Clearly, not all school personnel should have access to this and in fact, those who should have access should be an EXTREMELY shall group. Will there be logs maintained of who accesses the information? What training about the confidentiality of this information is to be provided to those who are authorized to have access? What logs will be maintained of the training provided to them and certifications by the school official that he/she received the training and that he/she shall keep the information confidential, pursuant to 18 Pa.C.S. 6111(g)(3.1) and (i)? Who will have access to those logs and certifications? What is to happen where a school official discloses information in violation of 18 Pa.C.S. 6111(g)(3.1) and (i)? Shouldn’t that person be immediately removed from having access to that information?

There are other tangential issues that aren’t addressed in the Bill. What about revocation of the school employee’s privilege to carry pursuant to this Bill, if some issue arises with the employee? Obviously, any such action must comport with due process protections. What about where the school employee’s license to carry is revoked or renewal denied or it just expires? How frequently will checks be done to see if the school official is still in compliance with the requirements of the bill? And these are only some of the concerns…

Based on the concern I raised, an amendment to the Bill modified this issue slightly, but still misses the mark and reflects the lack of comprehension of the issues involved. Amended SB 383 merely provides that the information regarding specific school personnel permitted access to firearms in a school “may not be disclosed during a meeting open to the public.” Well great, now what about access to the information at all other times, ensuring that it remains confidential and all the other issues raised above?

Third, and as I addressed as previously being the most concerning is the fact that without the confidentiality of this information being addressed in SB 383, one wonders whether such information will be disclosed to the public, including through Right To Know Law (“RTKL”) requests. Specifically, under the original bill, an individual intent on harming our children, including a potential terrorist or terrorist group, could seemingly learn, in advance, whether a school district has any armed personnel. If so, the criminal/terrorist is likely to target those school personnel first. If, on the other hand, a RTKL request comes back stating that there are no relevant records, such would highlight that there are no armed personnel and that the school is an extremely soft target.

Again, based on the concern I raised, amended SB 383 now specifically provides that none of the information is subject to the RTKL.

I also question why an LTCF is the determining criteria instead of the person being Act 235 certified. It would seem to be far more logical to me to remove the LTCF requirement and replace it with an Act 235 requirement.

While some are astonished that I would take this position, I think it is important to point out that teacher can ALREADY carry on school grounds, based on the Superior Court’s en banc decision in Commonwealth v. Goslin and even prior to it, I am aware of several school districts that petitioned several different courts of common pleas for orders approving individual teachers to possess firearms on school grounds.

For all of the above reasons, I am asking you to contact your State Senator and tell him/her to either demand amendments to SB 383 that address the above or that vote nay on the Bill.

 

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4hr Firearms Law Seminar – April 15, 2017 with Rockwell Tactical!

On April 15, 2017, Chief Counsel Joshua Prince, Attorney Eric Winter and Attorney Adam Kraut of Firearms Industry Consulting Group® (FICG®) in conjunction with Rockwell Tactical, will offer a four (4) hour seminar on state and federal firearms law at the DoubleTree Resort at 2400 Willow Street Pike, Lancaster, PA 17602.

The cost is $20 and you should register early, as the classes sell out fast! To register or to find out further information, check out Rockwell Tactical’s registration page.  If you have questions, please feel free to contact Rockwell Tactical at info@rockwelltactical.com or 717-405-2999.

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Pennsylvania Announces the First Phase of Permit Applications for Grower/Processors and Dispensaries.

Yesterday, Secretary of Health, Dr. Karen Murphy of the Pennsylvania Department of Health (“DOH”) announced that applications for medical marijuana grower/processors and dispensaries will be available at the Pennsylvania DOH’s website, www.health.pa.gov, beginning January 17, 2017. Permit applications will be accepted from February 20, 2017 until March 20, 2017.

In less than a year, Pennsylvania’s Medical Marijuana Act (“MMA”) has gone from enactment to the first phase of implementation. Pursuant to chapter 6 of the MMA, Section 601 authorizes grower/processors and dispensaries as the only entities authorized to receive a permit and operate as a medical marijuana organizations and grow, process or dispenses medical marijuana.

Section 602(a) of the MMA generally requires all applications to include:

1. Verification of all principals, operators, financial backers or employees of a medical marijuana grower/processor or dispensary.
2. A description of responsibilities as a principal, operator, financial backer or employee.
3. Any release necessary to obtain information from governmental agencies, employers and other organizations.
4. A criminal history record check.
5. Details relating to a similar license, permit or other authorization obtained in another jurisdiction, including any suspensions, revocations or discipline in that jurisdiction.
6. A description of the business activities in which it intends to engage as a medical marijuana organization.
7. A statement that the applicant: (i) Is of good moral character; (ii) Possesses the ability to obtain in an expeditious manner the right to use sufficient land, buildings and other premises and equipment to properly carry on the activity described in the application and any proposed location for a facility; (iii) Is able to maintain effective security and control to prevent diversion, abuse and other illegal conduct relating to medical marijuana; and (iv) Is able to comply with all applicable Commonwealth laws and regulations relating to the activities in which it intends to engage under this act.
8. The name, residential address and title of each financial backer and principal of the applicant. Each individual, or lawful representative of a legal entity, shall submit an affidavit with the application setting forth: (i) Any position of management or ownership during the preceding 10 years of a controlling interest in any other business, located inside or outside this Commonwealth, manufacturing or distributing controlled substances; and (ii) Whether the person or business has been convicted of a criminal offense graded higher than a summary offense or has had a permit relating to medical marijuana suspended or revoked in any administrative or judicial proceeding, and
9. Any other information the department may require.

Section 607 of the MMA sets forth the following fees and requirements to obtain a permit.

For a grower/processor:  1) An initial nonrefundable application fee of $10,000 must be paid; 2) A permit fee of $200,000 is required at the time of application. (The fee shall be returned if the permit is not granted); and 3)  A grower/processor must have at least $2,000,000 in capital, $500,000 of which must be on deposit with a financial institution.

For a dispensary: 1) An initial nonrefundable application fee of $5,000 must be paid: 2  A permit fee of $30,000 for each location must be paid. (The fee shall be returned if the application is not granted); and 3) A dispensary must have at least $150,000 in capital, which must be on deposit with a financial institution.

In October and November, the DOH drafted and published general regulations as well as specific regulations for both grower/processors and dispensaries. The regulations can be found at 28 PA. Code CHS 1141, 1151, and 1161.

Pursuant to 28 PA. Code §1141.23, no more than 25 permits will be issued for grower/processors and only one grower/processor permit per applicant. Additionally, no more than 50 dispensary permits will be issued and no more than five dispensary permits to one person. A dispensary permit may be used at no more than three locations.

28 PA. Code §1141.28 states the DOH shall publish in the Pennsylvania Bulletin notice of the initial permit application availability and the timeframe which they will be accepted. Only the form of application provided on the DOH’s website may be used and it must be submitted electronically.

Secretary Murphy further announced that this was the first phase of the program and that initially up to 12 permits will be issued for grower/processors and up to 27 permits will be issued for dispensaries, across Pennsylvania’s six medical marijuana regions. Secretary Murphy stated that “the decision for which counties will be issued permits in this first phase was determined by using the department’s medical data, as well as comments from more than 5,000 patients and nearly 900 potential grower/processors and dispensary applicants.” For further information on how many permits will be issued per each region please read the blog at http://cannabisindustrylawgroup.com/index.php/2016/12/21/pa-department-of-health-outlines-phase-i-of-medical-marijuana-program/

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Major Pennsylvania Firearm Cases of 2016

As the year is coming to a close, I thought it important to document some of the monumental court decisions that Firearms Industry Consulting Group® (FICG®), a division of Prince Law Offices, P.C., obtained in 2016, as well as, some other cases of importance.

We were successful in a monumental case of first impression in obtaining a decision from the Commonwealth Court holding that all license to carry firearms applicant information is confidential and not subject to disclosure. The court held that disclosure through an un-enveloped postcard was a public disclosure.

The Pennsylvania Supreme Court in Commonwealth v. Childs re-affirmed that the Castle Doctrine is an inalienable/inherent right.

There was the U.S. Supreme Court decision in Birchfield v. North Dakota that held that a state may not imposed additional criminal sanctions or penalties on someone refusing a breathalyzer or blood draw. Although we were not involved in the Birchfield decision, as a result of the decision, we were able to get numerous individual relief from previously prohibiting convictions and plea deals.

In another case of first impression, we were successful in a Second Amendment as-applied challenge in relation to a mental health commitment. The District Court even declared:

Indeed, Mr. Yox provides the perfect test case to challenge § 922(g)(4), as the illogical contradiction of being able to possess firearms in his professional capacities but not being able to possess a firearm for protection in his own home puts in relief a factual scenario where an as-applied Second Amendment challenge to this statute may succeed.

Indeed, if Mr. Yox were not to succeed on his as-applied challenge, we cannot imagine that there exists any person who could.

In a monumental order, the Superior Court vacated its decision in Commonwealth v. Goslin and ordered re-briefing and argument on whether Mr. Goslin, who merely possessed a lawful pocket knife on school grounds, was entitled to the defense of his possession constituting an “other lawful purpose.” This was after the Superior Court had issued a devastating opinion holding that one could only possess a weapon on school grounds if it related to and was necessitated by the reason the individual was on school grounds. We now await the court’s decision.

The most recent decision was in relation to Lower Merion Township’s illegal firearm ordinances, which precluded individuals from possessing and utilizing firearms in their parks, in direct contravention of Article 1, Section 21 of the Pennsylvania Constitution and our state preemption, found in 18 Pa.C.S. 6120. The Commonwealth Court found that Firearm Owners Against Crime (FOAC) was entitled to an injunction.

These are but a few of the extremely important, pro-Second Amendment, decisions that were rendered this year in Pennsylvania.

If your rights have been violated, contact us today to discuss your options! Together, we can ensure that YOUR constitutional rights aren’t infringed!

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Numerous Verified Reports of Voting Machine Issues in Pennsylvania

As some of you are aware, I am serving in Berks County as a Poll Watcher. Prior to today, I had little concern over the voting machines used by Pennsylvania, as they are 30+ years old and not connected to the internet. However, today my concern has changed.

I have seen numerous verified reports from across the Commonwealth of voting machines specifying the Democratic candidates, when an individual has selected the straight Republican candidates button. This has been a confirmed issue in Lebanon County, as reported by PennLive – Voting Machine Error that Showed Republicans Voting Democrat Fixed. There is also the report from the Schuylkill County Republican Committee of the same thing:

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I also have a report from Berks County – Muhlenberg 10th, that the same issue was occurring. There are also reports from Exeter, identical in nature.

While currently all information is supporting that votes cast for the candidates specified by the light next to his/her name is being correctly recorded, it is questionable of whether that information can be definitively known at this time, given the way in which the data is recorded in these machines.

Accordingly, any voter should specify the individual candidates that he/she desires to vote for and not click the button to vote straight party.

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