Where Should the Children Go to School?

Choice of schools.  In divorce and custody cases the end of summer always brings about the question of whether the children should attend public school, religious school, private school, or be home-schooled.  While parents may “share legal custody” and be expected to make this very important decision together, the reality is that parents who agree upon very little, and are in the midst of divorce and custody proceedings, are often not going to be able to agree on what type of school the children attend.

Recently the Pennsylvania Superior Court considered the issue of “choice of schools” and whether or not the local county court was required to consider the 16 custody “factors” outlined in the Custody Act.  The Superior Court ruled that the county courts did not need to consider the 16 custody factors, but rather needed to review “school choice” questions using the age old “best interests of the child” standard.  Basically the Superior Court left it to the best judgment, under the circumstances, of the local judges to decide what type of school the children should attend when the parents cannot decide.

In future “choice of school” cases in Pennsylvania, parents should be very careful to keep track of conversations with the other parent regarding the preference between public school, religious school, private school or home school.  While the choice of the type of school is not up to the children, parents should be aware of where their children’s friends go to school and whether their children have expressed an opinion where they would like to attend school.  Moreover, often with religious schools there are attendance or membership requirements that effect enrollment, and parents should know whether these requirements exist and if so, what they are.  Finally, parents should understand that often the choice of schools comes down to a money issue, as religious and private schools often come with a price tag.  Parents who want the children to attend religious or private schools should be prepared to pay some of the costs involved with attendance at these types of schools.

Most importantly, the education of the children is one of the most important decisions a parent will ever make.  If there is a disagreement between the parents, and the judge will ultimately decide, it is probably a good idea that the parent goes to court with a lawyer who can help present the parent’s best case and arguments to the judge.

If you have questions about making this important decision, call us at (215) 822-1888.

How Can You Represent Criminals?

We are often asked, “How can you defend criminals”.  We have a form response for that but every so often a case comes along that solidifies why ALL of us, if charged with a crime by the police, are entitled and guaranteed a lawyer and a defense.

In a recent federal case Judge Anita Brody starts her opinion by stating: “James Dennis, the petitioner, was wrongly convicted of murder and sentenced to die for a crime in all probability he did not commit.”  As you can imagine, the case did not get any better from there for the prosecution.

You can read the whole case here:

http://www.paed.uscourts.gov/documents/opinions/13d0705p.pdf

In the future, when you are tempted to assume someone is guilty because he or she got arrested by the police, remember James Dennis, and the fact that he got arrested, convicted and sentenced to death for a crime he did not commit.  If it were not for his lawyers, representing a “criminal”, Mr. Dennis may have been executed.

Be careful what you write on Facebook!

Be careful what you write on Facebook!

Recently the Pennsylvania Superior Court determined whether comments made in an on-line forum (Facebook) could constitute the criminal offense of Harassment.

In a case from Lebanon County, Pennsylvania, an 18-year-old girl was charged with the crime of Harassment after posting rude and lewd comments regarding her alleged 15-year-old victim. The police claimed that the comments established the crime of Harassment in that the 18-year-old communicated to or about another person in a lewd, lascivious, threatening or obscene matter, by language, with the intent to harass, annoy or alarm the 15 year old.

The specifics of the Facebook statements can be found in the first two pages of the Superior Court opinion found here:

http://www.pacourts.us/assets/opinions/Superior/out/J-S45024-13o%20-%201015072601679727.pdf?cb=1

The 18-year-old defendant fought the charges and was found guilty by a jury of the crime of Harassment. She then appealed to the Superior Court of Pennsylvania. The Superior Court found that the evidence established that the 18-year-old posted a statement indicating that the victim suffered from a sexually transmitted disease in an online forum and that the statement was viewed by multiple people. The Court determined that the statement was sufficient to prove that the 18-year-old communicated lewd statements about the victim, to other people, and that it was a fair inference that doing so was an intentional attempt to harass, annoy or alarm the victim.  Thus the Superior Court decided that the Facebook comments were criminal and did constitute the crime of Harassment.

The moral of this story seems to be that lewd and rude comments specifically directed at other individuals should be avoided at all costs. In this day and age it is not uncommon for someone to “go off” on another person in an online forum. Those tending to do so, however, should be warned that specifically identifying another person and making lewd and rude comments about the individual, at least in Pennsylvania, can lead to criminal charges. Of course, the best course of action is to simply refrain from any negative, rude or lewd comments that can be interpreted by another person, or more importantly, the police, as being of a harassing nature.

Those choosing to ignore simple codes of decency should not be surprised if they find themselves on the wrong side of the law and seeking the guidance of an attorney to help fight criminal charges.

How to Wreck a Brilliant Piece of Lawyering

Recently a brilliant piece of lawyering was destroyed when the accused decided to try to “game the system” and appeal his summary offense guilty plea after the DA’s Office withdrew all of the misdemeanor and felony charges that had been pending against him.  The moral of this story seems to be that when your lawyer gets you a good deal, don’t go hire a new lawyer and try to get yourself a better deal.

In the recent case from Delaware County, the defendant was involved in an altercation with police that led to felony charges of Aggravated Assault, and misdemeanor charges of Terroristic Threats, Simple Assault and Recklessly Endangering Another Person.  The case proceeded to trial but during the trial the defense lawyer was able to negotiate a plea bargain with the prosecution wherein all of the felony and misdemeanor charges would be withdrawn.  In exchange the defendant agreed to plead guilty to a summary offense of Disorderly Conduct.  So that the defendant would be able eventually expunge his record, the Disorderly Conduct charges were filed by citation at the local District Court.  The defendant pled guilty to a single charge of Disorderly Conduct before the District Judge and was ordered to pay a $100 fine.  The next day the District Attorney withdrew the misdemeanor and felony charges.

The result achieved by the lawyer on behalf of the client was fabulous; to be considered a victory.  However, snatching defeat from the jaws of victory, the defendant hired a new lawyer and shortly after the DA’s Office withdrew the misdemeanor and felony charges, the defendant filed an appeal of his summary offense guilty plea, which the Rules of Procedure entitled him to do.  Of course, the DA’s response was to ask the Court to reverse the withdraw of the misdemeanor and felony charges and to reinstate the more serious offenses.

The Delaware County Court, recognizing the defendant’s attempt to “game the system” dismissed the Disorderly Conduct appeal.  The defendant appealed the dismissal to the Superior Court of Pennsylvania, which ruled that, in fact, the defendant was entitled to appeal his summary offense conviction.  However, the Superior Court also ruled that by effectively acting to avoid the plea agreement that he had previously made with the prosecution, the defendant waived any future double jeopardy claim he might have had if the prosecution refiled the felony and misdemeanor charges.  The Superior Court clearly did not approve of defendant’s gamesmanship and stated that defendant “can weight his options either to forego the right to a summary appeal and affirm the pact that he struck with the Commonwealth, or face the full panoply of charges which the Commonwealth requests to reinstate against him…”

When one takes into account the thousands of dollars this person spent on his summary appeal, the county court proceedings and the Superior Court appeal, the more logical choice would have been to be satisfied with the terrific deal his original lawyer negotiated for him that resulted in virtually all of the charges being withdrawn.

Parent Coordinators: A Bad Idea Finally Put to Rest

For several years Pennsylvania judges have had the option in custody cases to appoint a “Custody Parent Coordinator” to make decisions for parents who could not agree on day-to-day, routine or mundane issues in their children’s lives.  When Pennsylvania formalized the use of Parent Coordinators in custody cases in 2008 following a Superior Court decision, there was much support for the process, reasoning that judges should not be bothered with routine day-to-day conflicts between the parents.

The use of Parent Coordinators was never a good idea and the Pennsylvania Supreme Court has now ended the practice, by Court rule, effective May 23, 2013.

Originally the Superior Court held that the appointment of a Parent Coordinator in a high conflict custody case was a reasonable exercise of judicial discretion and did not constitute the delegation of judicial authority to the Parent Coordinator. The Superior Court also had established that parents had a right to appeal and have a hearing of the Parent Coordinator’s decision, if one or both of the parents objected to a decision of the Parent Coordinator.

The original idea in practice pre-supposed that in high conflict cases a “neutral” Parent Coordinator could quickly and efficiently listen to the parents’ dispute and make a binding decision.  The Parent Coordinator would allegedly know the personalities, the family dynamics and the background of the legal case, and would be able to make a well reasoned decision.  The practice was based upon the assumption that judges did not need to be bothered with routine family issues that often end up in Court.  There were also advocates who believed that since the parents engaged in high conflict, a “reasonable person” was needed to make family decisions where the parents could not.

Clearly there are some families in which the parents are simply nasty to each other, often without regard to the impact on the children and without regard to the issue in dispute.  The argument for Parent Coordinators was that in such situations by placing a neutral party in charge of disputed issues there would be peace and harmony.  Obviously this did not come to pass.  The argument ignores the fact that in some cases there is simply a difference of opinion that can never be reconciled by agreement, and in such cases the litigants, in this case parents of children, have a due process constitutional right to their day in Court.  By appointing a Parent Coordinator to make a decision for the parents, thus avoiding the opportunity to be heard in Court, parents were systematically being deprived of their due process rights.

Frequently parents involved with a Parent Coordinator would become displeased with the neutral decision maker, and move on to a new Coordinator.  On occasion there were Court approved Coordinators who discovered that the more conflict that existed the more money there was to be made.  Finally, with providing to disgruntled parents the ability to appeal a decision of the Coordinator to the Court, litigation really was not avoided in many situations and Court backlog was not alleviated.

When one considers the practical application of a Parent Coordinator into a high conflict case, it is not surprising that an alleged neutral party, who possesses no ability to discipline the parties or force upon an unwilling participant a decision, is destine to fail.  Additionally, the supposition that a lawyer or other trained person is better suited to make parental decisions than is the child’s parent reflects a “Big Brother” attitude and treats the parents as children themselves.

The Pennsylvania Supreme Court has now recognized that appointing Parent Coordinators to oversee custody cases is not a good idea.  The recent abolition of the Parent Coordinator practice puts an end to what in theory might have been a good idea, but in reality simply acted to take away parental rights and decision making ability, not to mention deprived many of their due process right to a day in Court.

Use Your Blinkers

Many of us do not always use our turn signals, even though the Vehicle Code requires that we do so.  Often clients will come into the office after being stopped by the police for nothing more than failing to use a turn signal.  Upon being stopped the client is either under the influence or in possession of something illegal.

On the witness stand police officers will frequently admit that they personally often fail to use their turn signals.  Many cops will admit that they do not always pull over every turn signal offender.  However, the Pennsylvania Superior Court has approved of the police pulling drivers over for turn signal violations alone and if the driver is then found to be committing a more serious crime, the charges will not be dismissed even though the initial stop was for a minor infraction that is not always enforced by the police officer or his department.

In the recent case of Commonwealth v. Brown the Superior Court wrote that a police officer has the authority to stop a vehicle when he or she has reasonable suspicion that a violation of the vehicle code has taken place, for the purpose of obtaining necessary information to enforce the provisions of the code. However, if the violation is such that it requires no additional investigation, the officer must have probable cause to initiate the stop.

What does this mean?  In practice out on the streets it means that the police can pull over any driver they see who does not use his turn signal.  Afterwards the police can and will charge the driver for either the vehicle code violation, or for more serious felonies or misdemeanors if other evidence is discovered during the car stop.  When the case gets to court the police officer may tailor his or her testimony to fit the facts of the case so that the likelihood of having the more serious evidence suppressed, or thrown out, is greatly reduced.

We all know that the police do not usually hit their lights and pull someone over at lunchtime for failure to use turn signals.  However, if you are driving at 2:00 a.m. the chance of getting pulled over for this minor infraction increases greatly.  To protect yourself from “hunch” stops by police on a whim, always use your turn signals, without fail.  Doing so will not only protect you and other drivers on the road, it may also prevent you from being the target of a car stop simply because there is little else to do in the middle of the night.

If you are the target of a police stop and you have been charged with a crime, you need a lawyer who can review the case and put together a defense that will protect you and your drivers’ license.  Give us a call at 215-822-1888 to discuss your case.

It Doesn’t Matter Who Earns More Money!

Recently we have had several clients who have been under the belief that because they are the lower wage earning spouse in the marriage that the majority of the marital assets are the possession of the higher wage earning spouse. Frequently these clients have indicated “my spouse earned all the income and so most of our assets belong to him”. This belief is entirely incorrect according to the Divorce Code.

The Divorce Code is “title blind” with respect to who owns marital property. This means that in a divorce situation it does not matter which spouse’s name appears on the title (to titled property) or who purchased the property. Any asset acquired during the marriage is marital property, subject to equitable distribution by the Court. Additionally, regardless of what party was the greater wage earning spouse, earning more money does not bestow upon that spouse property ownership rights greater than that of the lower wage earning spouse.

The fact is that in a divorce situation any asset acquired during the marriage will be divided by the court with each party being awarded his or her fair share of the value of that property. At the time of the division of the assets the Court must consider numerous factors outlined in the Divorce Code. Such factors include which party is the primary custodian of minor children, which party is the lower wage earning spouse, and which party has the greater ability in the future to earn promotions and increases in their income. Typically the party who is the custodian of minor children, or who is the lower wage earning spouse, will be awarded a greater share of the marital assets.

It is not important which party was the breadwinner in the household. In fact, when determining which party in a divorce situation will be awarded a greater share of the marital assets, the Court will typically look to award a greater share to the lower wage earning spouse. Most of the time the higher wage earning spouse will also be the spouse who has the most assets in his or her name. The higher wage earning spouse needs to be aware that the opposing party will probably fare better at the time of equitable distribution. Lower wage earning spouses in divorce situations need to be aware that they should not agree to any division of assets based upon who earns the most income during the marriage.

Get There Early

Some of us are habitually on time for events, or even early.  Others are habitually late and in some instances such tardiness can be the target of jokes or good natured kidding.  However, in this age of recession and high unemployment being late for work not only can lead to dismissal from your job, but also render the worker ineligible for unemployment compensation, leading to disastrous financial consequences for the worker and that person’s family.

In Pennsylvania unless the employee has a contract for employment he or she is an “at-will” employee.  This means the job can fire an employee for almost any reason whatsoever (as long as it is not discriminatory).  It goes without saying then if the employee is habitually late for work the employer can fire that worker.  Thereafter, if the fire worker files for unemployment compensation, it is likely that the worker will be denied unemployment benefits.

In a recent case the Pennsylvania Commonwealth Court was asked to decide if an employee’s habitual lateness was “willful misconduct” thereby preventing the employee from qualifying for unemployment benefits.  The Commonwealth Court considered that over the course of the employee’s 4 years with the company she had been reprimanded four times for being late for work.  In the three week period leading up to the worker’s termination she was late six times, with the worker being late at least 30 minutes for work in five of those instances.  The worker was then given a written warning, after which she began a scheduled vacation.  On the first day back from vacation the worker was 45 minutes late for work, resulting in her termination.

The employee sought unemployment benefits, which were denied.  She requested a hearing at which she claimed that she had good cause for being late on the first day back from vacation.  The Unemployment Referee determined that the employee did not have valid cause for her tardiness and that the habitual lateness was “willful misconduct”, making the employee ineligible for unemployment compensation.  The worker appealed to the Unemployment Compensation Board of Review, which upheld the denial.  She then appeal to the Commonwealth Court.

On appeal the Commonwealth Court agreed with the previous decisions.  The Court stated that where there is the existence of specific work rules the employer has the right to expect a certain standard of behavior from the employee.  The Court also noted that sometimes there are situations where a specific rule is unnecessary, and such an instance is when an employee fails to show up for work on time.  The Court wrote, “…chronic tardiness, particularly after a warning, exhibits a sufficient disregard of the employer’s interests to constitute willful misconduct.”  The Court also pointed out that Pennsylvania law does not require a detailed termination policy regarding tardiness or specific notice that future lateness will result in termination.  If the employee’s lateness is habitual and that fact is known or made known to the employee, future tardiness is unacceptable.

The best course of action is be early and be early often.  If you have a habit of running late for work, change the habit and make it customary that you are early. Failing to do so may not only lead to termination from work, but also to disqualification from unemployment benefits following termination.

Employees, Read Your Personnel Files

The Philadelphia Inquirer, courtesy of the Kansas City Star, recently reported that employees should be aware that personnel files kept by their employers are not the property of the employee, but rather property of the company.  This is true under Pennsylvania law.

In this day and age when it is uncommon for someone to stay at a job for decades, and where there is a great deal of unemployment, it is helpful to know that if an employee needs to have access to their file they do have the right under Pennsylvania law to review the file, but not to possess a copy of it.

Pennsylvania’s Personnel Files Act allows employees the right to inspect certain portions of their employment records.  The Act also allows the employee’s agent or representative to inspect the records.  The Act does not require that the employer provide a copy of the file to the employee, but it does allow the employee to take notes of what is in the file.  The Act was passed several years ago, and thus it is silent on whether the employee may use his or her cell phone to take photos of the contents of the personnel file.

The purpose of the Personnel Files Act has been explained by the Pennsylvania Commonwealth Court to acknowledge the right of both public and private employees to review files held by their employers that contain information about themselves, and not to permit access to employees’ personnel files by the general public.  The Court explained that without the right of inspection, an employee would have virtually no way of correcting errors in his or her file, asserting and enforcing rights to promotion and compensation, or protecting him or herself from improper or illegal termination.

Despite defining an employee as a person who is currently employed by the company, the Court specifically stated that it did not interpret the phrase “currently employed” to prohibit an individual from obtaining his or her personnel file when such request is made contemporaneously with termination or within a reasonable time immediately following termination.  This is important because often a person who has been terminated from the company will have the need to meet with a lawyer and to know what is in their personnel file.

The article provided two very important, and smart, suggestions to employees.  First, employees should keep their own personnel files, so that when they need to search for a new job or when there is a dispute with the employer, the employee will have readily available documentation upon which to rely. Secondly, employees should annually review their personnel files so that they can both be aware as to what is included within the file and so any mistakes or discrepancies can be addressed by the employer.

It is generally a good idea, when faced with the prospect of filing for unemployment compensation, making a claim for wrongful termination, or addressing a legal dispute with a current for former employer, that the employee have documentation to back-up his or her “side of the story”.  A good place to start in this regard is to annually review one’s personnel file kept by the employer.

Take The Breath Test

The Pennsylvania Implied Consent Law requires that the Department of Transportation suspend the driver’s license of a person who refuses to submit to blood or breath testing, if that person is placed under arrest for Driving Under the Influence of Alcohol (DUI/DWI), is requested by the police to submit to chemical testing and refuses to do so. The law says that if blood or breath testing is refused by the driver the testing shall not be conducted, but upon notice by the police officer, PennDOT shall suspend the operating privilege of the person.

The police are authorized to request blood or breath testing when they have reasonable grounds to suspect that the driver is under the influence. “Reasonable grounds” exist when a person in the position of the police officer, viewing the facts and circumstances as they appeared at the time, could have concluded that the motorist was operating the vehicle while under the influence of intoxicating liquor. While there is no set list of behaviors that a person must exhibit for an officer to have reasonable grounds for making an arrest, case law has provided numerous examples of what has been accepted as reasonable grounds in the past: staggering, swaying, falling down, belligerent or uncooperative behavior, slurred speech, and the odor of alcohol. The standard for reasonable grounds is not very demanding and the police officer need not be correct in his belief that the motorist had been driving while intoxicated.

In a recent case decided by the Commonwealth (appeals) Court, the Delaware County Court had decided that a driver’s license suspension for refusing to take the breath test was invalid. The Delaware County Court Ordered PennDOT to reinstate the license. PennDOT appealed the decision.

The Commonwealth Court disagreed with the Delaware County Court and reinstated the driver’s suspension. The Court noted that the evidence showed that the driver sped past the police officer’s marked car, failed to signal when changing lanes, became angry and argumentative upon being pulled over, exhibited slurred speech and glassy eyes, confused his registration and insurance card, smelled of alcohol, admitted to drinking alcohol, and refused to submit to field sobriety testing. The Court also noted that while perhaps none of those factors individually would be sufficient to show reasonable grounds, their cumulative impact should allow a reasonable police officer to conclude that the driver operated his vehicle under the influence of alcohol.

The best advice is if a police officer asks you to take a breath or blood test, take the test. Not taking the test will not prevent the police from charging the driver with DUI, as the police can always charge a driver with DUI if the officer has probable cause to believe the driver has consumed alcohol (or drugs) to a degree that prevents the driver from operating their vehicle safely. Not taking the test accomplishes nothing and only leads to an automatic license suspension.

If you do refuse to take the test, call a lawyer immediately. Often the lawyer may be able to act on the driver’s behalf to speak with the police and prevent the refusal from being reported to the Department of Transportation. If you have any questions about a DUI, the refusal to take a blood or breath test, or a license suspension matter, call (215) 822-1888 to speak with Vince Margiotti or Pat McMenamin