Can I represent myself in Pennsylvania courts?

Yes you can, if you are a natural person, i.e. a human being, you can represent yourself. This is called “pro se” representation. However, in most cases, you cannot represent a company with which you are associated. An exception to this is representation of companies in proceedings in Magisterial District Courts where a shareholder or officer or partner may represent a company. Also, an employee of the company or authorized agent who has personal knowledge of the facts of the case may represent the company if authorized in writing by an officer or partner of the company.

A Few Words About Real Estate Transfer Taxes in Pennsylvania

 

Transfers of real estate in Pennsylvania are subject to a state tax of 1% of the value of the real estate, 72 P.S. § 8102-C. Traditionally the payment of the tax is equally split between the transferor and the transferee. However, the parties to the transfer may agree between themselves to split payment differently. Nevertheless, no matter how the parties agree to split payment of the tax, the Commonwealth may proceed against either or both of them to enforce payment of the tax.

Certain transactions are exempt from the tax, 72 P.S. § 8102-C.3including certain transfers between family members. One point of note in this regard is that the Pennsylvania Department of Revenue regulations concerning the tax define children only as children by natural birth or adoption and specifically exclude stepchildren and children of parents whose parental rights have been terminated.

Also, in addition to the state tax, local governmental authorities in Pennsylvania may impose additional real estate transfer taxes, 72 P.S. § 8101-D.  Both the local municipal authority, e.g. borough or township, and the local school district may impose a tax. These taxes are subject to the same exclusions as the state tax.  The rates of these taxes vary from locality to locality in Pennsylvania.  Presently, in Bedford County Pennsylvania, a .5% tax is imposed by the municipality and a .5% tax by the school district, resulting in a total local tax of 1%, which when added to the state tax of 1%, results in Bedford County real estate transfers being subject to a total of 2% realty transfer taxes.

You have a right to talk directly to your doctor and have your questions answered.

 

“The doctrine of informed consent protects a patient’s bodily integrity and autonomy in determining what medical treatment to allow. The doctrine recognizes that a patient has the right to be informed by his or her physician of the risks and benefits attending a proposed course of treatment in order to enable the patient to make an informed decision about the treatment. To ensure informed consent, the physician has a duty to inform the patient about the risks, benefits,  likelihood of success, and alternatives…The doctrine of informed consent developed through the common law under the theory that a surgery conducted without consent was a battery, and that, to be effective, a patient’s consent must be informed, i.e., based upon adequate information. Without the patient’s informed consent, the physician is liable for the procedure, regardless of whether the physician was negligent.” Shinal v. Toms, 31 MAP 2016 (PA 2017). Moreover, the Supreme Court of Pennsylvania has held that the physician may not delegate the responsibility of obtaining his or her patient’s consent to another person (e.g. a member of the physician’s staff such as a physician’s assistant or a nurse). The physician must communicate the risks, benefits, the likelihood of success, and alternatives by direct communication with the patient. In its opinion, the Supreme Court expressly stated that “[w]ithout direct dialogue and a two-way exchange between the physician and patient, the physician cannot be confident that the patient comprehends the risks, benefits,  likelihood of success, and alternatives” and that “Informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent.”

Do you have a right to inspect your personnel file after you have been fired?

 

No. You don’t. At least you don’t if there is nothing in your individual employment contract which gives you that right. There is a Pennsylvania statute which guarantees employees the right to inspect their personnel files but the statute only applies to current employees.  You are not a current employee if you have been fired. According to the Inspection of Employment Records Law (also known as  “the Personnel Files Act”), 43 P.S. §§ 1321-24, “An employer shall, at reasonable times, upon request of an employee, permit that employee or an agent designated by the employee to inspect his or her own personnel files used to determine his or her own qualifications for employment, promotion, additional compensation, termination or disciplinary action ….” In the case of Thomas Jefferson University Hospitals v. Pennsylvania Department of Labor and Industry, 30 EAP 2016 (PA 2017), it was argued that since the law provides for inspection of personnel files to determine qualifications for termination it must provide for inspection by former employees whose employment had been terminated. However, the Pennsylvania Supreme Court held that another section of the statute which defined employees, as follows, controlled: “Any person currently employed, laid off with reemployment rights or on leave of absence. The term ’employee’ shall not include applicants for employment or any other person. ” The court explained that the reference to access to qualifications for termination was not superfluous because in some instances current employees are given advance warning that they will be terminated.

Treble Damages and the Landlord from Hell

 

Are you having problems with your landlord timely completing necessary repairs? You may find the case of Nexus Real Estate v. Erickson, 2017 Pa. Super. 180 of interest. In that case, the landlord’s property manager made numerous assurances that repairs would be performed and either performed no repairs at all or performed inadequate repairs. This failure left the tenant without heat for an entire winter, without air conditioning for an entire summer, and with a roof which leaked for months causing visible mold to grow and causing the tenant to cough.  Also, during a construction project at the apartment building, the tenant’s water was turned off at least 25 times. Eventually, the tenant started paying his rent into an escrow account and the property manager then sued him for unpaid rent.  The tenant responded by suing the property manager and the landlord, bringing claims pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law and breach of the warranty of habitability. The lawsuits were consolidated for a non-jury trial and the Court awarded the tenant $32,150 in damages consisting of $29,250 for violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law , which was a tripling of the $9,750 he had paid in rent, and $2,900 in attorney fees.

The moral of the story? If you are dealing with a landlord from Hell, consider consulting an attorney concerning remedies under the  Pennsylvania Unfair Trade Practices and Consumer Protection Law .

 

A Look at Product Liability in Pennsylvania

 

Product liability is that area of law which concerns harm to persons or property caused by manufactured products. Suits seeking compensation for such harms commonly articulate claims under several different legal formulations or causes of action, i.e.  negligence, breach of warranty, and strict liability. Furthermore, in some cases, a claim of fraud may be appropriate.

Negligence

The elements of a negligence-based cause of action are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury, and actual loss. Minnich v. Yost, 2003 PA Super. 52, 817 A.2d 538, 541 (Pa. Super. 2003). Since courts have held that product designers and manufacturers have a duty to exercise reasonable care in manufacturing and designing products, a product liability claim may be couched in negligence terms.

Breach of Warranty

Although a product liability claim may be couched in terms of the breach of an express warranty, i.e. a spoken or written warranty, such claims are more typically pled as breaches of implied warranties, i.e. warranties which are not actually communicated to the buyer but are implied by law. There are 2 implied warranties in Pennsylvania which fit this description: The implied warranty of merchantability and the implied warranty of fitness for a particular purpose. These 2 warranties are imposed on the sale of goods in Pennsylvania by statute:

13 Pa.C.S. § 2314  Implied Warranty: merchantability

 13 Pa.C.S. § 2315 Implied Warranty: fitness for particular purpose

Strict Liability

Although an attorney litigating a product liability claim on behalf of a plaintiff will likely plead claims in negligence and breach of warranty, just to make sure that all bases are covered, as a practical matter those causes of action have been largely subsumed by a strict liability cause of action as described in the Restatement (2D) of Torts § 402A:

§ 402A Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property,
if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

The Supreme Court of Pennsylvania has held that a plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm
caused by the product outweigh the burden or costs of taking precautions. Tincher v. Omega Flex, Inc. 104 A.3d 328 (Pa 2014).

Fraud

Also, if a consumer reasonably relies on a material misrepresentation by a manufacturer or distributor of a product and suffers injury to his or her person or property as a result, the person could plead his or her claim as a fraud claim, possibly entitling them to treble damages, costs, and attorneys’ fees pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law.

Subrogation

Insurance companies, when they pay claims to their insureds, are frequently entitled to seek reimbursement of their payments from any parties legally responsible for the harm caused to their insureds. For example, if a residential fire is caused by a defective product, e.g. a lamp which sustained an electrical short because it was not insulated properly, the homeowner’s insurance carrier could sue the lamp manufacturer and distributor. In such a case, the homeowner could join in the suit to recover damages which were not covered by his or her insurance.

I have handled the litigation of product liability cases, including subrogation cases. If you would like to discuss such a case with me, please telephone me at 814-283-5788. There will be no fee for your initial consultation.

 

A Brief Look at Mechanics’ Liens

 

Mechanics’ liens are liens filed against real estate to ensure full payment to contractors and subcontractors who make improvements to such real estate. In Pennsylvania, they are governed by the Mechanics’ Lien Law of 1963. It is important to note that the definitions of contractor and subcontractor under the act include suppliers of materials used in the improvements. Also, there are restrictions concerning subcontractors filing liens against certain residential properties when the contractor has been fully paid by the owner (consult an attorney for details). Also, under certain circumstances, contractors and subcontractors may waive their lien rights.

Lien Filing

Mechanics’ liens are not automatically perfected upon completion of the work or delivery of the supplies by the contractor or subcontractor.  Indeed, in order to perfect the lien, the contractor or subcontractor must file a lien claim with the Court within 6 months of completion of the work. In addition, subcontractors must give the owner 30 days prior written notice before they file their claims. Also, recent amendments to the lien law have imposed additional notice requirements where the cost of the project is $1.5 million or more (consult an attorney for details).

Judgment and Execution

However, after the lien claim has been successfully filed, the contractor or subcontractor must take 2 further steps to judicially enforce payment by the owner: 1. they must commence a lawsuit to obtain judgment on the lien claim within two years of the filing of the lien claim, and 2. they must obtain execution on said judgment, which would result in the subject real estate being sold at sheriff’s sale and the proceeds from the sale paid to the contractor or subcontractor to pay the debt.

I have filed lien claims and represented parties in lawsuits to obtain judgments on lien claims.  If you wish to discuss with me your options in either filing or enforcing a mechanics’ lien or defending against one, please telephone me at 814-283-5788. Your initial consultation will be at no cost.

What is unfair debt collection?

 

Debt collection practices are governed by both Federal and Pennsylvania law. Both the federal Fair Debt Collection Practices Act and the Pennsylvania Fair Credit Uniformity Act regulate what communications debt collectors are to have with consumer debtors and with third parties, partly to protect the debtor’s privacy and partly to protect debtor’s from deception and harassment.

Privacy

For example, both the federal and the state law require a debt collector to identify himself or herself when attempting to obtain location information concerning the debtor from third parties and prohibiting the collector from telling the third party that the debtor owes a debt. Also, once the collector knows the debtor is represented by an attorney and knows the name and address of that attorney, the collector may not communicate with any person other the attorney concerning the debt unless the attorney fails to respond to the collector’s communications within a reasonable time.

Harassment

Both the federal and state law restrict the collector to communicating with the debtor between 8 am and 9 pm. Similarly, both laws prohibit the “use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person” and the “use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader”.

Deception

Both the federal and state law prohibit “any false, deceptive, or misleading representation or means in connection with the collection of any debt.”

Remedies

While the federal and state laws are quite similar, but not identical, in the conduct they prohibit, there are significant differences in the remedies afforded to the consumer. The federal law allows the consumer debtor to recover damages for actual damages sustained as a result of the creditor’s prohibited practices, plus additional damages up to $1,000 at the discretion of the Court, in addition to costs and reasonable attorney’s fees as determined by the Court. However, the consumer debtor who brings a lawsuit pursuant to the state act may potentially obtain significantly higher damages since conduct prohibited by the state act also constitutes a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law which affords triple damages, as well as costs and attorney fees.

Criminal

Certain collection agency practices constitute a third-degree misdemeanor under Pennsylvania law:

18 Pa.C.S.A. § 7311 Unlawful collection agency practices

If you believe that you have been subjected to unfair debt collection practices, I would be pleased to discuss the situation with you. Your initial consultation will be free of charge.

Invasion of Privacy – A Multi-Faceted Tort

 

Previously I posted on drones and privacy. This post will address invasion of privacy more generally. Invasion of privacy is a very broad topic. Indeed, invasion of privacy can be a criminal offense in Pennsylvania. However, I will be addressing invasion of privacy as a tort, i.e. a civil wrong. In fact, invasion of privacy encompasses 4 separate torts: 1. Intrusion Upon Seclusion 2. Appropriation of Name or Likeness 3. Publicity Given to Private Life, and 4. Publicity Placing Person in False Light.

Intrusion Upon Seclusion

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. Restatement (Second) of Torts § 652B.

An action pursuant to this section does not depend upon any publicity given to the person whose interest is invaded or to his affairs…The invasion may be (1) by physical intrusion into a place where the plaintiff has secluded himself, (2) by use of the defendant’s senses to oversee or overhear the plaintiff’s private affairs, or (3) some other form of investigation or examination into plaintiff’s private concerns…

The defendant is subject to liability under this section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs…There is also no liability unless the interference with the plaintiff’s seclusion is substantial and would be highly offensive to the ordinary reasonable person…
[T]his cause of action also requires that the plaintiff have a reasonable expectation of privacy.” … Finally, a tortious invasion of privacy must ” cause mental suffering, shame or humiliation to a person of ordinary sensibilities…

As set forth above, intrusion upon seclusion can occur under three situations: (1) by physical intrusion into a place where the plaintiff has secluded himself, (2) by use of the defendant’s senses to oversee or overhear the plaintiff’s private affairs, or (3) some other form of investigation or examination into plaintiff’s private concerns…

Tagouma v. Investigative Consultant Services, Inc., 2006 CV 1532 (Dauphin CCP 2009)

Appropriation of Name or Likeness

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy. Restatement 2nd of Torts 652C

An example of this would be a business using a photograph of you without your permission in advertising their product or service.

Publicity Given to Private Life

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public…The publicity element requires that the private information be “made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.”

Hahn v. Loch, 2984 EDA 2014 (Pa. Super. 2016)

Publicity Placing Person in False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Restatement (Second) of Torts § 652E.

Under this section, “publicity” means “the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.”…”Thus, it is not an invasion of the right of privacy…to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons. The plaintiff must also establish the publicity given to him is such that a reasonable person would feel seriously aggrieved by it. Furthermore, the publication must be false. The publication must also be a major misrepresentation of a person’s character, history, activities, or beliefs which could cause a reasonable person to take serious offense.

Lapinski v. Poling, 250 WDA 2016 (Pa. Super. 2017)

If your privacy has been invaded and you seek redress, you may telephone me at 814-283-5788 to discuss the situation. There will be no charge for your initial consultation.

The Basics of Insurance Bad Faith Claims

 

There are two broad categories of bad faith claims which insureds can bring against their insurance carriers, i.e. first party claims and third party claims.

First Party Claims

First party claims pertain to situations where the insurance company has exercised bad faith toward its insured in failing to pay a claim or delaying in paying a claim.

There is a Pennsylvania statute which affords remedies to insureds when they are subjected to first party bad faith by their insurance carrier, i.e. 42 Pa.C.S. § 8371:

§ 8371. Actions on insurance policies

In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:

(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.

(2) Award punitive damages against the insurer.

(3) Assess court costs and attorney fees against the insurer.

The statute provides no definition of bad faith and does not indicate what evidentiary standards are applied in adjudicating bad faith claims. However, Pennsylvania courts have ruled that, to succeed on a bad faith claim, the insured must present clear and convincing evidence to satisfy a two-part test: (1) the insurer did not have a reasonable basis for denying benefits under the policy, and (2) the insurer knew of or recklessly disregarded its lack of reasonable basis in denying the claim. Terletsky v. Prudential Prop. and Cas. Ins. Co., 437 Pa.Super. 108, 649 A.2d 680, 688 (Pa. Super. 1994).

Third Party Claims

Third party claims pertain to situations where the insured faces a claim from a third party and the insurance carrier exercises bad faith in protecting its insured from the risk of incurring a judgment in favor of the third party which is  in excess of the insured’s policy limit, thereby subjecting the insured to personal liability for any amount in excess of the insurance policy limit. Pennsylvania courts have held that an insurer may be liable for the entire amount of a judgment secured by a third party against the insured, regardless of any limitation in the policy, if the insurer’s handling of the claim, including a failure to accept a proffered settlement, was done in such a manner as to evidence bad faith on the part of the insurer in the discharge of its contractual duty. Gray v. Nationwide Mutual Insurance Co., 422 Pa. 500, 223 A.2d 8 (1966).

Since Pennsylvania courts have held that  good faith “requires that the chance of a finding of nonliability be real and substantial and that the decision to litigate be made honestly”, and the decision to expose the insured to personal pecuniary loss must be based on a bona fide belief by the insurer, predicated upon all the circumstances of the case, that it has a good possibility of winning the suit”, where an insurer refuses to settle a claim that could have been resolved within policy limits without ‘a bona fide belief . . . that it has a good possibility of winning,’ it breaches its contractual duty to act in good faith and its fiduciary duty to its insured. Cowden v. Aetna Casualty and Surety Co ., 389 Pa. 459, 134 A.2d 223 (Pa. 1957).

 

Who Gets Your Stuff If You Die Without a Will?

 

Who Gets Your Stuff If You Die Without a Will?

It’s complicated:

Ownership Title

You can pass property to someone after your death by titling it properly before you die. If you own property jointly with right of survivorship, or by the entireties (which is joint ownership between spouses) and you die, the property passes to your surviving joint owners automatically by operation of law, without a will.

You can designate certain of your assets to be paid to a preferred recipient after your death by designating that person as a beneficiary, e.g. life insurance, and securities accounts.

Trusts

You can open a bank account in your own name in trust for another person. That person will receive the account upon your death. This is sometimes referred to as a Totten or tentative trust. It’s tentative because you retain the right to withdraw the entire balance of the account during your lifetime. In fact, some would dispute that it is a true trust. However, regardless of whether it should be regarded as a true trust or not, it is recognized in Pennsylvania as an effective means of leaving an account to someone after your death.

If you’re so inclined, you can also create a more complicated trust to convey assets to others after your death. However, such would entail the creation of a trust document which would likely be as complicated as a will. Accordingly, before creating a trust to convey assets after your death, you will probably want to consult an attorney.

The Law of Intestate Succession

If you die and leave behind property which has not been disposed of by a will or by any of the means described above, it will be distributed to your survivors pursuant to the terms of a rather complicated Pennsylvania statute, depending on which of your relatives survive you and how they are related to you. Precedence is given to spouses:

Share of surviving spouse

Shares of others than surviving spouse

If you wish to discuss these or related matters with me, please call me at 814-283-5788. Your initial consultation is free.

What Do You Need to Know About Magisterial District Courts?

 

While certain criminal matters and traffic offenses are handled in Magisterial District Courts in Pennsylvania, this post will address how such courts handle civil matters. First,  you need to know that MD Courts are small claims courts, i.e. the maximum amount of damages you can seek, exclusive of interest and costs, is $12,000. Second, you need to know that MD Courts cover geographic areas smaller than counties. Third, you need to know that that any party in DJ Court has a right to appeal a judgment to the Court of Common Pleas where the case will be tried anew. While a matter in DJ Court will likely proceed to trial much more quickly than a matter in the Court of Common Pleas, as long as the opposing party is willing to bear the expense of appealing to the Court of Common Pleas, it is easy to frustrate a final resolution of the dispute in MD Court. If you have any questions about Magisterial District Courts, please give me a call at 814-283-5788

What is the PACA?

 

The PACA is a federal statute, the Perishable Agricultural Commodities Act. As explained by the United States Department of Agriculture “PACA protects businesses dealing in fresh and frozen fruits and vegetables by establishing and enforcing a code of fair business practices and by helping companies resolve business disputes”.

The law contains trust provisions which put sellers of fresh and frozen fruits and vegetables in a priority status in the event their buyers become insolvent or file for bankruptcy protection. Moreover, pursuant to the PACA the USDA makes available administrative procedures to assist produce suppliers in collecting debts from their buyers. The PACA also provides for jurisdiction in the federal courts for lawsuits for the collection of such debts. Moreover, because of the trust provisions of the PACA, federal courts are authorized to fashion equitable remedies to prevent dissipation of the trust assets. Such remedies may include injunctions to prevent debtors from spending funds or selling other assets and/or the institution of specific claims procedures which allow creditors to present their claims to the court in an orderly and relatively simple manner, rather than every creditor filing a separate lawsuit against the debtor.

I have experience in representing both PACA creditors and PACA debtors in both administrative proceedings before the U.S. Department of Agriculture and in court proceedings in United States District Courts. In fact, I argued an appeal in a PACA case before the United States Court of Appeals for the Third Circuit. Several of the PACA cases in which I have represented parties are described in the following published case reports:

Botman International vs. International Produce Imports
Bear Mountain Orchards vs. Mich Kim

If you have any questions about the PACA, please telephone me at 814-283-5788