The Professional Blog of Melvin C. McDowell, Attorney at Law
A litigation defendant, when sued in a court located in a state in which it does not reside, may be able to challenge the jurisdiction of that court. For example, in a recent case decided in the Superior Court of Pennsylvania, Seeley v. Caesar’s Entertainment Corporation, the Court held that the plaintiffs could not sue a New Jersey casino in the Philadelphia Court of Common Pleas for a slip and fall which occurred in New Jersey.
In Maas v. UPMC, 2018 Pa. Super 195, the Pennsylvania Superior Court upheld the trial court’s denial of summary judgment to defendants Michelle Barwell, M.D., a psychiatrist and her employer who had failed to warn the neighbors of the danger of their patient who had communicated his intent to kill a neighbor. He, in fact, ended up murdering his neighbor with a pair of scissors. The defendants had argued that there was no duty to warn because the patient had not specifically identified the neighbor he intended to kill. The Superior Court held that a duty to warn exists when the person at risk is reasonably identifiable. In this instance, the murdered neighbor lived on the same floor of the apartment building as the mental patient.
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.
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.
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.
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.
Mine made the list. Hat tip to Above the Law
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.
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.3, including 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.
A Florida appeals court ruled that a Florida judge need not recuse herself from a case where she was “friends” with the defense attorney on Facebook:
“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.”
