I am running for the Republican State Committee.

I am running for the position of Member of the Republican State Committee. I am now collecting signatures on nominating petitions. You may sign a petition if you are registered to vote as a Republican in Bedford County. If you wish to sign a petition on my behalf, please telephone me at 814-283-5788 and we can make the necessary arrangements.

You could be compelled to disclose your computer password to the police

In Commonwealth v. Joseph J. Davis, 2017 Pa. Super. 376, the Pennsylvania Superior found that a criminal defendant accused of sharing child pornography from his encrypted computer could be legally compelled to disclose the password necessary to decrypt the computer drive to law enforcement officials. The defendant argued that his right against self-incrimination provided by the 5th Amendment to the U.S. Constitution prevented him from being compelled to disclose the password.  The court held that compelled disclosure of the password would not violate the defendant’s right against self-incrimination because disclosure would not be testimonial in nature because disclosure would add little or nothing to the sum total of the government’s information because the defendant had already implied the existence of the pornographic files on his computer and the prior investigation had already established that pornographic videos had been shared on the internet from the defendant’s computer.

You can be fired for not getting a flu shot

The United States Court of Appeals for the Third Circuit (a court in which I am admitted) has upheld the firing of a psychiatric crisis intake worker by the Mercy Catholic Medical Center of Southeastern Pennsylvania for failure to be inoculated against the flu.  The employee claimed that the reason for his refusal to be inoculated was his strong personal beliefs opposing the flu vaccine and alleged that his firing constituted religious discrimination. The court held that his beliefs were not religious and, therefore, his firing did not constitute religious discrimination.

Illegal drug use by pregnant mother may constitute child abuse

The Superior Court has held that illegal drug use by a pregnant mother may constitute child abuse pursuant to the Child Protective Services Law, 23 Pa.C.S.  6301, et seq., if the mother is found to have by her drug use intentionally, recklessly, or negligently caused or created a reasonable likelihood of bodily injury to the child after birth.

Recording court related proceedings in PA could land you in jail

In Commonwealth v. Patrick Cline, 2017 Pa. Super 417, the Pennsylvania Superior Court upheld the criminal conviction of a man who recorded a custody conference in the Lehigh County Courthouse.  He was convicted of violating the Pennsylvania Wiretapping and Electronic Surveillance Control Act and given a sentence of incarceration for 11 1/2 to 23 months.

The defendant appealed on the grounds that, 1. He did not know that his act was illegal, 2. He was denied due process since information from the custody conference was received and utilized by the judge in a subsequent custody trial, and that, 3.  He was denied due process because court proceedings are supposed to be public and not held in secret.

The Court denied his appeal on the first issue, because of the general principle  (also stated in the Pennsylvania Criminal Code at 18 Pa.C.S. 304) that ignorance of mistake of law is no defense. However, the Court did not make any substantive ruling on the other two issues, holding that the defendant had waived those grounds by not raising them before the trial court.  Accordingly, it is possible that those due process arguments may still be viable if properly raised in the correct procedural context.

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.