Legal Research

Aggrieved Parties and Their Right to Appeal

James W. Cushing — Tue, 21 May 2013 04:00:00 GMT

The Rules of Civil Procedure are designed to facilitate litigation so it can be performed smoothly and predictably. Unfortunately, one simply cannot predict and write a rule for every possible contingency that could happen in the life of a case. There will always be circumstances that seem to fall into the cracks between the rules.

Pa.R.C.P. 1028(a)(1) requires a complaint be dismissed when the court lacks jurisdiction over the subject matter and/or the parties to a claim. Pa.R.C.P. 1028(5) requires a complaint be dismissed when a plaintiff lacks standing to file one on the issues contained therein. What if a plaintiff sues two defendants in municipal court, wins a judgment for jurisdictional limits against only one defendantbut files an appeal to the court of common pleas against both parties despite having won as much as legally permitted against one of the defendants?

Although, pursuant to 42 Pa.C.S.A. §5105, a party may file an appeal from a final order, it could be argued that only an aggrieved party may file an appeal, as in Pierro v. Pierro, 434 Pa. 131 (1969). Pennsylvania case law has something to say on this subject: “Standing [to file an appeal] requires an aggrieved party, and one ‘who is not adversely affected in any way by the matter which he seeks to challenge is not ‘aggrieved’ thereby and has no standing to obtain a judicial resolution of his challenge,’” as the court held in Lisa H v. State Board of Education 67 Pa.Cmwlth. 350 (1982), quoting William Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168 (1975).

If our hypothetical plaintiff above won a judgment against one of the defendants for full jurisdictional limits in municipal court, it could be argued, per the above case law, that the plaintiff is not an aggrieved party, as he won his case against the defendant as completely as possible according to his own complaint and the municipal court rules. As he is not aggrieved, it could be argued, he has no standing to file an appeal of that judgment to the court of common pleas against that defendant. If the plaintiff had no standing and, therefore, could not file an appeal of the judgment, the court of common pleas, theoretically, has no jurisdiction over the person or subject matter at issue as it pertains to that one defendant.

The statute and cases seem to point in the direction that only a truly aggrieved party can file an appeal. Unfortunately, there seems to be a conspicuous absence among the relevant cases and statutes as to precisely whether a party that completely wins its case against a party, particularly in municipal court, is actually an aggrieved party with the right to appeal. It would seem that this issue is ripe for testing in the courts as soon as the opportunity arises.

Originally published in The Legal Intelligencer Blog on May 21, 2013 and can be viewed here.

Ripeness Spoils Church's Efforts

James W. Cushing — Tue, 21 May 2013 04:00:00 GMT

In the matter of Shenkel United Church of Christ v. North Coventry Township, 2009 WL 3806769, Shenkel United Church of Christ (“the Church”), has recently found its efforts to fight homelessness spoiled by the doctrine of ripeness.
In order to fulfill its Biblical mandate to care for the needy among us, the Church, for several years, participated in a Montgomery County run program called “One Night at a Time”. “One Night at a Time” helped homeless persons find shelter for one (1) month during the winter. For a reason unrelated to the case discussed herein, in 2005 Montgomery County discontinued the “One Night at a Time” program. Instead, Montgomery County directed its homeless population to a local state hospital. Unfortunately, it became apparent that the local state hospital was inadequate to meet the needs of the County’s efforts against homelessness, as overcrowding became a persistent problem. In 2007, in response to the continued homelessness problems in Montgomery County, and the overcrowding of the state hospital, a Christian organization, called Ministries for Main Street, was formed to help combat homelessness. The services offered by Ministries for Main Street were, in essence, the same as those offered by the “One Night at a Time” program. As the Church was an active participant with the “One Night at a Time” program, it attempted to similarly participate in Ministries for Main Street.
Before participating in Ministries for Main Street, the Church dutifully notified North Coventry Township (hereinafter “the Township”) of its intention to do so toward the end of 2007. Although the Township had no objection to the Church’s participation in “One Night at a Time” two (2) years previous, the Township now, suddenly, objected to the Church’s participation in Ministries for Main Street, even though the Church was to provide the same services as before. The Township’s objection primarily revolved around its allegation that the Church’s efforts with Ministries for Main Street would violate both the Township’s zoning laws and building codes. Specifically, the Church was zoned for assembly purposes, and not as a residence as required to house the homeless even temporarily. Additionally, the Township’s Fire Marshall sent a letter to the Church informing it that, considering the Church’s present zoning, it could not contain sleeping facilities pursuant to the applicable fire safety requirements. As a result of the clear resistance of the Township, the Church elected not to participate in the Ministries for Main Street program. The Township subsequently indicated to the Church that if the Church was interested in participating in the Ministries for Main Street program, it would need to apply for a variance from the zoning and/or building and/or fire codes.
Instead of requesting a variance, in October 2008 the Church elected to file an application with the Township’s Zoning Hearing Board, requesting a determination that it did not need a variance to participate in the Ministries for Main Street program. After a number of postponements, and unsuccessful negotiations with the Township, the Church withdrew its aforesaid application. Instead, the Church elected to pursue its goals through litigation and brought suit against the Township alleging the Township had violated the Religious Land Use and Institutionalized Persons Act, the Pennsylvania Religious Freedom Protection Act, and the Free Exercise Clause of the First Amendment of the United States Constitution.
In reaching its decision, the Court never addressed the substantive allegations made by the Church. Instead, the Court refocused the matter onto whether the matter is, ultimately, a land use issue. Consequently, the Court focused on whether the Church’s claims against the Township were ripe in the context of a land use matter. When enunciating the standard for ripeness, the Court cited to Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985) and Murphy v. New Milford Zoing Commission, 402 F.3d 342 (2nd Cir. 2005). In order to determine whether a matter is ripe when a land use issues arises from constitutional claims, such as the matter discussed herein, “the government entity charged with implementing the regulations [must reach] a final decision regarding the application of the regulations to the property at issue.” See Williamson. Based on the preceding, when applying the standard for ripeness, the Court investigated into whether the Township’s “decision maker”, in this case the Zoning Hearing Board, had reached a definitive position on the salient issues. It is only upon the Zoning Hearing Board’s having reached an adverse decision against a land owner, in this case the Church, that a land owner is inflicted with an actual and recoverable injury which can serve as the basis for a civil action. The Court developed the above standard because it did not to want the Court to devolve into becoming a glorified land use board dealing with effectively local issues. It wanted to ensure that the local zoning boards would be the primary places where land use issues, such as the one in the matter at hand, are dealt with and resolved. Indeed, the Court specifically indicated its belief that the local boards are in a better position to make local decisions than the Court. Therefore, an issue is only ripe if a final decision is rendered by the local authority and/or it can be proven that the pursuit of a variance would be a futile effort.
The Church argued that the above enunciated ripeness standard ought not apply; it argued, instead, that the instant matter is not about land use and, therefore, another ripeness standard should apply. To that end, the Church argued that the standard laid out in Step-Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643 (3rd Cir. 1990) was the appropriate standard by which the Court should render its decision. The key distinction between the standard laid out above, and the standard established in Step-Saver Data Systems, Inc., is that the matter at issue in Step-Saver Data Systems, Inc. took place in the context of a declaratory judgment as opposed to the context of a land use matter. Under Step-Saver Data Systems, Inc., the analysis would be to determine whether: (1) the parties’ interests are sufficiently adverse; (2) the court can issue a conclusive ruling in light of potentially evolving factual developments; and (3) the decision will render practical help the parties. The Church asserted that the instant matter was, in fact, a declaratory judgment matter as it was seeking declaratory and/or injunctive relief of a pre-enforcement matter.
When rendering its decision, the Court simply did not find the Church’s arguments, or the cases it cited in support of the same, persuasive in the face of the Township’s assertion that the matter is, at its core, a land use matter. Specifically, the Court stated that since the Church’s action against the Township centered directly upon how the Township’s Zoning Officer and Fire Marshall applied the zoning regulations to the Church’s proposed use of its land; based upon this, the Court indicated, it was clear that the matter was, at its core, a land use matter as opposed to some sort of declaratory judgment matter. To sum up its rationale, the Court explained that “[s]ince the Church has not stated a facial challenge to the Township ordinances, the Church is essentially asking this Court to rule on the application of those ordinances before the Township itself has had the opportunity to do so.” A question of the application of ordinances for the use of land is, therefore by definition, a land use matter and the Williamson standard applies. It is worth noting that the Court mentioned, as dictum, that it may not have reached a different decision even if it used the cases the Church citied to in support of its position. How that would play out, of course, may never be known.
Allowing the matter to proceed to ripeness has a fourfold positive effect on a matter such as the one discussed herein. First, it allows for the local authority to render a decision and develop a complete record. Second, it is only after the pursuit of the variance process will the property owner, and the court by extension, know how the ordinances will be applied. Third, the variance needed may actually be granted which would, of course, eliminate the need for judicial entanglement into the affairs of a church. Fourth, it reinforces a basic federal principle that land use disputes are uniquely a matter of local concern as opposed to that of a Court.
The Court ultimately decided that the Church’s matter was simply not ripe enough to hear at this time. The Court noted that as the Church failed to pursue a variance, withdrew is application to the zoning board wherein it asserted that it did not need an application, and never pursued any sort of appeal of the Zoning Board or Fire Marshall’s decisions, that the Church never let the matter reach any decision at any level previous to bringing a civil action. Due to these decisions made by the Church, the Court ruled that the Church never permitted its matter to ripen sufficiently to warrant the engagement of the Court in such a matter.
In the final analysis, the central matter in this case is whether the question at issue is a land use matter or a declaratory judgment matter. For the reasons noted above, the Court decided it was a land use matter and that the Church did not permit the matter to sufficiently ripen to warrant a civil action. The principle to take away from the decision discussed herein is that, when dealing with a land use issue, all local administrative remedies must be exhausted before initiating a civil action.
Finally, one of the issues never addressed by the decision discussed herein, and one that this author thinks is rather peculiar, is why the Church was permitted to house the homeless when it participated “One Night at a Time” program but not permitted to do the same in the Ministries for Main Street program, even though the Church’s facilities were substantially the same at all times material to the case. This clearly apparent, unexplainable, and seemingly arbitrary change in the Township’s policy toward the Church seems to this author to involve more than just a land use issue; in actuality, it would seem that the religious freedom of a Church to achieve its social goals in the community is at issue. Perhaps if further investigation was done to determine why the Church was suddenly restricted from performing a service it performed for many years without the Township’s interference, a fresh perspective on whether the matter was actually ripe could have stopped the spoiling of the Church’s efforts to combat homelessness.

This article also appeared in the Philadelphia Bar Association’s “Upon Further Review” on October 8, 2010.

TAKE YOUR HEAD OUT OF THE SAND

Faye Riva Cohen — Thu, 09 May 2013 04:00:00 GMT

I have been driven to distractionthis week talking to some potential clients about their issues, especiallythose who have been sued, and need to mount a defense in a certain period oftime. I don’t think any professionals have to face the recurrent issue of peoplewho think they can be their own lawyers in a complicated legal matter. Peoplewho wouldn’t dream of performing surgery on themselves, designing a house,preparing a complicated tax return, etc., think nothing of determining thatthey don’t need a lawyer to represent them, or convincing themselves that theycan’t afford a lawyer. They think thatwhen they are involved in a lawsuit the court system will be protective oftheir interests, and warm and cuddly to them. What usually happens is that theydecide, after they have botched up a case beyond repair, or they have even lostthe case, they should now seek a lawyer. At that point in time it will bedifficult, if not impossible to find a lawyer, it may be impossible for alawyer to assist, and if they do find a lawyer, the charges will often beconsiderably more than they would have had to pay initially.

Here are two examples involving realestate:

1) Alady called me because she wanted to transfer her deceased mother’s house toher and her sister. She was referred to me by a service that she receivesthrough her work, giving her a discount toward fees. She concluded that call bysaying that she couldn’t afford a lawyer, so she was returning to get freelegal services for a second time. First of all, she isn’t entitled to freelegal services unless she is earning a very low amount, so she may not havebeen truthful the first time she sought the services. Second, the advice shereceived from the free legal services was minimal and directed her to thecourthouse, where she received incomplete information from clerks, not lawyers.At this point in time she has not advertised the estate, she has not received areal estate appraisal, she has not secured a lien and judgment search, and whoknows what else. Also, even if she gets a non-lawyer to draft a deed for her,the considerations of what happens if she or her sister die, leaving the otheras partners with surviving spouse and children, will likely not be considered.Did I want to pull my hair out after speaking with her? Yes I did. Did she heedmy advice that if she did not take the time and pay for having things donecorrectly now, the expense of what certainly will be a disaster in the makingin the future, will be many times what she pays for a lawyer. No.

2) Alady called me because years ago she had a real estate agent (not a lawyer--who needs lawyers?) draft a deed which made her and some friends co-owners of aproperty which had a house and a carriage house on it. The carriage housepeople were to try and have the property rezoned and divided, which they neverdid. Now, many years later, the carriage house people are moving to anotherhouse and have filed an action in court, called partition, asking the judge todivide the property. The lady who called me was spending her time trying to getan equity loan for the property so that she could pay these people off in anamount she thinks they would take. She blew me off when I told her that shecould not get a loan as a lawsuit was I progress involving the property. Shesaid she had to decide what to do and then called me back to state that she couldn’tafford a lawyer, unless I wanted to take the case on a contingency fee orpercentage basis. A percentage of what? She thinks the property is worth half amillion dollars, and she is at risk of having to move, and losing quite a bitof money if there is a dispute on the value of the property. She thinks she isgoing to waltz into court and tell the judge what she wants to do when theother party has a lawyer, and a judge will agree with her. No way!

So please, people, the legal system isoften terribly complicated, and should be practiced by lawyers. Do not try andnavigate the legal system on your own, especially if you have already been suedas a defendant.

Read this and other posts of Ms. Cohen's blog Toughlawyerlady here.

Why is the Law so Complicated?

Faye Riva Cohen — Thu, 09 May 2013 04:00:00 GMT

I suspect what has happened to make the law so complicated is that more and more laws, rules, regulations, etc. (referred to in this article as “laws”) have been, and continue to be, added daily by every governmental entity, as it is easier to create new laws then thoroughly examine or repeal existing laws. This is much like the process when Presidential candidates pledge on the campaign trail that if elected, they will eliminate or consolidate government departments and cabinet positions. This rarely happens because of the enormity of the task, the power struggles between the various departments, and because the Federal government not good at laying off personnel (or balancing budgets).

The severe downside of our layered system of laws is that it is nearly impossible for the average person and the small business owner to navigate the legal process. It is also a problem for large business entities, but they have the resources to seek assistance.

I am constantly surprised to read about the existence of laws I never heard of, and I learn about these laws by reading various legal publications, or hearing about them in legal seminars. Recently I read about a class action which had been brought against an amusement park because when credit cards were used to purchase entry tickets, the expiration date was also printed out. This apparently violated some law. The end result of the class action was that the amusement park was to give out free tickets to previous customers, and also to the community, if enough previous customers did not avail themselves of the free ticket offer. The only ones who received any money out of the lawsuit were the lawyers. The lawyers were doing a public service by protecting the privacy of the amusement park customers, but one wonders whether every amusement park operator is aware of this law, and if not, are they required to have their lawyers scour the law for such types of law? The answer is yes, they are so required.

The law has become so complex so that even a small matter, such as a buyer discovering a defect in a house he bought, faces some complex laws. In researching the remedies for a client in a similar situation recently, these were the issues we encountered:

State law exempts an estate (the house was sold by an estate) from responsibility in selling real estate unless the administrator/executor knew about the condition.
If the buyer complains of a problem, mediation, rather than a court hearing is required by the sales agreement. The mediator has to be paid by each party involved.
The buyer had an inspector inspect the property. If the buyer feels the inspector did not do a good job, the inspector’s agreement requires that the matter first be arbitrated, and the buyer cannot take the matter to court, at least initially.
As we were uncertain whether the buyer could prove the seller knew about the defect, or whether the inspector should have told them about the leak, which means each party would point a finger at each other, and because we could not initiate a claim even in a small claims court, where it probably would have been resolved quickly, we advised the clients just to absorb the expense of repairing the problem, which was not large, and certainly far less expensive than paying for a mediator, an arbitrator, or a lawyer.

You can read this and other posts on Ms. Cohen’s blog, ToughLawyerLady here.

Expert Witness Encyclopedia – Bringing All Information About Experts Under One Portal

Expert Witness Guru — Tue, 07 May 2013 04:00:00 GMT

Two months ago, we were looking at a long list of gatekeeping issues and it was a pain to find some of the decisions which defined the gatekeeping standard for several states. This is when we thought that there needs to be a single place where all information about expert witnesses should be available to anyone [...]

A View from the Field Project Execution / Contracting Strategies Large and Complex Industrial Projects

George T. McLaughlin — Mon, 06 May 2013 04:00:00 GMT

This article from the Division 1 of the ABA Forum on the Construction Industry Newsletter “The Dispute Resolver” represents George T. McLaughlin’s “View from the Field” formed throughout the course of his 30+ year career in the industrial marketplace.[1] His article is broken into four parts. Part 1, below, describes the evolution of the delivery [...]

Florida Legislature Adopts Daubert Standard for Expert Testimony

Expert Witness Guru — Mon, 29 Apr 2013 04:00:00 GMT

Florida Legislature Adopts Daubert Standard for Expert Testimony The Florida House and Senate have passed a Daubert bill, which now apparently awaits only the governor’s signature. After years of trying, Florida has, at least legislatively, become the country’s 27th (or 21st or 31st, depending on which definition sways you) Daubert state. The federally adopted Daubert [...]

GOING TO HELL IN A HANDBASKET

Faye Riva Cohen — Thu, 25 Apr 2013 04:00:00 GMT

When Iwas growing up everyone used quaint sayings, derived from who knows where, thatI rarely hear anymore. One of them was “going to hell in a handbasket.” Ithought of that saying in recent days when learning that the Philadelphiapolice had made 14 arrests of young people, up to age 18 (18 is thePennsylvania legal definition of being an adult), when a crowd estimated at 500young people gathered at a busy intersection in the late afternoon of CenterCity for no apparent reason. The arrestswere made after a fight broke out between two teenage girls, other young peopleignored the police’s request to disburse, and some taunted the police bythrowing bottles at them. The media took pains to distinguish this situationfrom that of a “flash mob”, which encourages people to congregate at a specificplace, and said behavior has sometimes resulted in violence and vandalism. Idon’t really see the difference, but some would say that both of these types ofbehavior are examples of our society going to hell in a handbasket.

Althoughyoung people do not always have the advantage of good judgment, as that isoften something learned after one has experienced the results of bad judgmentas one ages, it is clear that their family values makes a difference in thekinds of behavior young people exhibit. So, let’s examine some of the behaviorexhibited by the parents of the arrested young people, as illustrated through theirinterviews on televised news reports and in newspaper articles as follow:

One parent said “my son wasn’t out there fighting.” Ofcourse, the parent wasn’t there in person, so he only has the word of his son.

Another parent, also not present, stated that there were 500people there, so some people were arrested because the crowd couldn’t disperseas fast as the police wanted them to, and his son was arrested because “theyweren’t moving fast enough.” Of course, why was his son even there, when hetold his father that he was attending “an after-school program?”

A lawyer representing two young people said “it seems someyoung men and some young women were obviously detained in error.”

Another mother, picking her daughter up after her arrestsaid “pretty soon we’ll be cleared of wrongdoing.”

Do you see a pattern here? Not oneparent interviewed felt their child was at fault, and in fact everything elsein the world was at fault. None of these parents blamed their children fortheir behavior, none of these parents seemed to hold their children accountablefor their behavior, and none of these parents had respect for the lawenforcement and legal systems. Althoughtheir children probably will not serve any time in detention for theirinvolvement, one would think that the charges of conspiracy, obstructinghighways, failure to disperse, and disorderly conduct would warrant some parentalconcern. I think it is a fair conclusion that if their parents don’t seem tohave any respect for the legal system, why should their children?

If this had happened to me while Iwas growing up, the punishment would have been swift and severe from myparents, and in fact, all of my friends’ parents would have exacted the samepunishment. Yet, it is doubtful that these young peoples’ parents disciplinedtheir children, and perhaps if discipline did occur it was most likely for theirkids inconveniencing them.

The arrested young people attendedfour different Philadelphia public schools and two Catholic schools. And if you think the kids will be disciplined by their schools, aPhiladelphia School District spokesman said the District’s code of conductapplies only when students are in school or going to and from school, so it islikely that at least the public school students won’t be disciplined.

So, isit any wonder that there appears to be a total lack of respect in society for ourlaw enforcement and legal system, our judicial system, and indeed our politicalsystem. And, the lack of respect inthese systems carries through all elements of society, including the members ofCongress who spend an inordinate amount of time fighting with each other andblaming everything and everyone but themselves. Yup, it appears that at least certain elements of our society are goingto hell in a handbasket!

Check out this and other posts by Ms. Cohen at her blog Toughlawyerlady.com.

The Internet is Not a Legal Expert and Other Musings

Faye Riva Cohen — Thu, 25 Apr 2013 04:00:00 GMT

The Internet and the Law

The Internet is a two edged sword when it comes to the law. On the one hand, I am often pleasantly surprised to learn how much knowledge a current or potential client has received from the many hours they have surfed the Internet. On the other hand, much of that knowledge is not relevant to their issue, raises expectations of their case beyond what the facts of their case would deliver in a court of law, and often has no relevancy to the laws ofPennsylvania, where I practice and where my clients generally live or do business. Inquirers are often surprised to learn that the cases they have reviewed and sent to me toreview have absolutely no relevancy toPennsylvaniaor, quite often, their issue.

Lawyers generally know how to conduct legal research and hone in on effective and relevant law, so if a client wants me to read through many cases they feel are relevant which they have pulled from the Internet, I will do so, but I will charge them for doing so. I think their money is better spent on me conducting the research.

For instance, I recall a situation where a lawyer in another state achieved what my client thought was a remarkable result in the field of education law. I called the lawyer who told me the results of her case were “one in a million”, was entirely based on the unique facts of the situation, that her client was given significant help from some employees who worked for the school she was suing, and other fluky factors. Although the universe combined in that instance to create a unique result, and that is what it was—unique to the facts of the case- it was totally unrelated to the law as it stands in Pennsylvania.

Remember that the Internet has no controls, so anything can be mentioned. This does not mean that the things mentioned are even true. I am always surprised to learn that clients feel that if something is on the Internet, it is gospel. THE INTERNET IS NOT THE FONT OF KNOWLEDGE.

So, There is Nothing I can Do…

It always astonishes, and sometimes angers me, when I have spent time my time, often free of charge, giving a potential client my opinion on their legal options, and they conclude by saying “so, there is nothing I can do” or “you don’t sound optimistic”. I did not say that! I gave the potential client choices and possible results.

The disconnect between what I say and what a client often hears or wants to hear, comes because many people today, especially those who want or need to spend their hard earned dollars on legal representation, want a guarantee of excellent results. The law, and lawyers, cannot usually provide guarantees. In fact, I tell clients if they meet with a lawyer who guarantees a result, I would run the other way. There are so many factors which enter into a case, not the least of which is the opposing party, the opposing lawyer, the judicial system, the facts, the law, etc., that a result can’t be guaranteed. The law is not a shirt whose collar frays and one can demand their money back.

What disturbs me even more is that the same people who are concerned about whether they have a 100% winnable case, and want a guarantee of same, have often spent considerable money on things related to the case for which they will not receive any benefit. They have done this without consulting a lawyer, or they have consulted everyone besides a lawyer, such as a real estate agent, an accountant, their neighbors, their family, their friends, and anyone else who is not a lawyer, who have given them poor and quite often damaging and misleading advice. If one were to do a cost benefit analysis, the amount they would have spent on a lawyer to handle the matter effectively is usually far less than what they have spent in this round-about fashion of avoiding lawyers and the legal system.

For example, I had an elderly woman consult me once who had paid $40,000 in back taxes and bringing a mortgage current after it had fallen in arrears, on a house which was owned by her niece. Yet, she did not want to pay a fraction of that amount to undertake the process of placing the house into her name. Under the law she made a gift to her niece, and has no legal basis to recoup it if the niece sells the house or encumbers it. She doesn’t own the house. And, this is not an unusual situation. Not only had she not consulted a lawyer prior to spending this amount, but she said she didn’t have the money to pay a lawyer to do what was necessary to give her the benefit of her investment, for a couple of thousand dollars. I wish someone would come along and pay my bills.

I have said this before in my blogs. Do not be pennywise and pound foolish. Consult a lawyer and keep an open mind and do not expect a guarantee under the law. But, if you have a fighting chance, lawyers perform small miracles daily, and they can certainly give you better advice about the law than people who aren’t lawyers.

Check out this post and others at Ms. Cohen's blog Toughlawyerlady.

Showing Entitlement in Order to Receive Alimony Pendente Lite

James W. Cushing — Thu, 25 Apr 2013 04:00:00 GMT

I amexcited to say that I won a recent alimony pendentelite (“APL”) case on the basis of entitlement. This is a pretty rare occurrence as evidencedby the paltry amount of case law on the subject.

A littlebackground may help. First, APL is thesupport a spouse receives while a divorce case is pending. The spouse who receives is, probablyobviously, the spouse with the lower income and fewer assets. The purpose of APL is to help the spouse withless income/assets to be able to adequately provide for him/herself and litigatethe divorce simultaneously. Most of thetime, entitlement is merely assumed either because the numbers are clear ormany practitioners presume there is no defense against it if s/he representsthe spouse earning more money.

Most APLpetitions are filed using a template that is rarely, if ever, varied from caseto case. The averments in the templateallege that the petitioner (the person seeking APL) cannot sustain her/himselfduring the litigation and cannot provide for his/her reasonable own needswithout the APL. I have litigated dozensof APL cases on either side and never seen anyone challenge a petitioner on thebasis of the averments in the APL petition and about a year ago, I decided Iwould try and see what happens.

Theresponse I have received from everyone at the APL hearings so far wassurprise. Opposing attorneys reactextremely negatively when I bring out the APL petition and cross examine on theaverments made in it. I suspect it isbecause this likely never happened before to them. Indeed, one attorney admitted as muchexclaiming on the record something like “everyone knows the petition is just aform!” Conversely, the response I havereceived from the support masters has ranged from confusion (but allowing theexamination) to something like a bemused spectator.

The factis, an APL petition is a formal document filed with the Court which containsverified averments of facts about the petitioner made by the petitioner. Merely because it is a form or a templatedoes not, somehow, lessen the significance of the fact that it contains factualaverments which are verified by the petitioner to the court as true. My suggestion to those who think “it ismerely a form” would be to rethink using it if your client does not conform toits averments. Merely having lesserincome does not automatically mean that one is entitled to the APL.

In therecent case I mentioned above, the Wife made a very good living earning asix-figure salary (though less than her spouse), was able to pay all of herexpenses out of her income (without the APL), as well as make contributions toher retirement funds each pay period. Needless to say, she was more than able to meet her reasonable needs andsustain herself if she could do all of the things listed above with her ownincome (absent the APL), namely satisfy all of her monthly bills and save forretirement. APL, in this case, would notequalize the two parties over the course of the divorce litigation, but onlyserve to enrich the petitioner.

Luckily forme and my client, the judge agreed and ruled that the wife was not entitled tothe APL. I think the lesson here is thatone cannot assume some things, namely, one is not entitled to APL merely on thebasis of making less money than one’s spouse and that the averments in an APLpetition cannot be examined merely because it is a “form” or “template.” The allegations made in the petition areimportant and are formal representations to a court and should be takenseriously as such.

Finally, every case is unique and do not read the above andpresume it applies to your case. Thisarticle is not legal advice for your particular case. Each case is handled differently based on itsunique set of issues, facts, and circumstances. The take away from the above, is, I think, first, be sure that what youaver in an APL petition reflects the truth and reality. Second, be sure to consider arguingentitlement if defending an APL petition if it is clear that the petitioner hassufficient income/assets to sustain him/herself. APL is not designed to enrich one partyand/or impoverish the other. Instead, itis designed to try and make both parties able to both sustain themselves andpursue the divorce litigation.

Check out this and other posts at Mr. Cushing's blog JudicialSupport.

Do Non-Parents Have Custodial Rights?

James W. Cushing — Wed, 24 Apr 2013 04:00:00 GMT

It goes without saying that a mother and father, generally speaking, have the primary right to custody over their child(ren). However, there may be times when a person who is not a parent may also have custodial rights over a child. With the rate of children being born to unwed parents at an all time high, which has also coincided with the worst economic climate in generations, many a parent has taken to relying on others to assist in the rearing of his/her child(ren), more frequently than in recent memory. This article will set forth the rights of persons who, assisting in the rearing of these children, may also have a right to the custody of the child(ren) of another in addition to, or instead of, the custody rights of the child(ren)’s parents.

The most common person who may have a right to custody of a child is a grandparent. Due to grandparents seeking custodial rights over their grandchildren becoming so common, the terms and guidelines by which a grandparent may have custody has been codified as 23 Pa.C.S.A. Section 5313. Generally speaking, a grandparent may only petition for “reasonable” partial custody and/or visitation of a grandchild if the grandchild has lived with the grandparent for at least twelve (12) months. The Court will only grant a grandparent partial custody and/or visitation of a grandchild if said custody/visitation is in the best interest of the child and will not interfere with the parents’ relationship with the (grand)child at issue.

Aside from the above, 23 Pa.C.S.A. Section 5313 also permits a grandparent to assume primary (or, perhaps, sole) physicaland legal custody of a grandchild if certain conditions are met. Specifically, in the event that it is in the best interest of the child not to be in the custody of either parent, and also in the best interest of the child to be with his/her grandparent, a grandparent may be awarded custody if: (a) the grandparent has genuine care and concern for the child; (b) the grandparent’s relationship with the child began with the consent of a parent and/or order of court; and/or, (c) who has, for twelve (12) months, assumed the role and responsibilities of the child’s parent (or assumes the responsibility of the child’s parent pursuant to a dependency action), and/or believes the child is in substantial risk due to parental abuse, neglect, drug/alcohol abuse, and/or mental illness.

For the sake of completion, it should be noted that any custodial/visitation right afforded to a grandparent is also afforded to a great-grandparent. Additionally, the custodial/visitation rights of grandparents (and great-grandparents) are terminated and/or do not apply to a child who has been adopted by a person other than a stepparent or grandparent.

There are times when a party, who is not a parent, grandparent, or great-grandparent, may also assert custodial/visitation rights over a child; a custody action of this sort is commonly called a “third party custody action”. The threshold issue for a third party seeking custody of a child to establish is that s/he has standing to bring the custody/visitation action in the first place. To establish standing to bring a third-party custody action, a party must first overcome the presumption that any party, by definition, who is not a parent, grandparent, or great-grandparent, lacks standing to bring a custody/visitation action. In order to overcome the presumption, the third-party seeking custody/visitation must prove that s/he stands in loco parentis; that is, in the place of a parent. In order to establish that one stands in loco parentis, one must prove that s/he has essentially assumed parental status over a child and discharges parental duties for the same.

What does it mean to assume parental status? It means, for example, that the child lives with the third party; and/or, the child calls the third party mom/dad; and/or the third party holds him/her self out as the child’s parent; and/or the third-party performs duties usually reserved for parents. The third party’s attempt to assume the parental role and discharge parental duties may not be in defiance of the child’s parents. Additionally, simply being a child’s babysitter or caretaker, even if it is frequent, does not qualify one to custody.

Once a third party establishes that s/he stands in loco parentis for a child, the third party must then prove that it is in the best interests of the child for him/her to be awarded custody of the child. However, the burden of proof for the third party greatly exceeds that of a parent, grandparent, or great-grandparent. A third party must prove, by clear and convincing evidence, as opposed to merely the preponderance of the evidence, that awarding him/her custody is in the best interests of the child at issue. Additionally, the third party bears the burden of production, proof, and persuasion when seeking custody of a child. Interestingly, the third party’s burden is not reduced if s/he is a member of the child’s family.

Finally, a Court will act to protect the relationship of the child’s relationship over that of a third party. Suffice it to say, though it is possible for a third party to be awarded custody of a child, it is an extremely difficult task. Indeed, probably the best forum for a third party seeking custody of a child would be in the context of a dependency action.

Although, generally speaking, only a child’s parents have the right to have custody of their child(ren), as noted above, there may be times when a non-parent can assert custodial rights over a child. When it comes to the custody of a child, the best interest of the child is the ultimate determinate of who is awarded custody. Indeed, despite all of the drama and angst often so prevalent in custody cases, it is hoped that all parties involved ultimately want what is best for the child at issue and the child will end up living with the best person for him/her.

Originally published on August 12, 2010 by Upon Further Review and can be found here.

Superior Court Offers Refresher Course on Appeals Procedures

James W. Cushing — Wed, 24 Apr 2013 04:00:00 GMT

The recent Pennsylvania Superior Court matter of J.J. DeLuca v. Toll Naval Associates, 2012 Pa.Super. 222, involved a large construction contract, alleged breaches of that contract and allegations of fraud over the life of the relationship of the parties in this case. Although the underlying case is interesting, the focus of this article is what amounted to the primer the court gave in its opinion regarding appellate practice.

After a verdict and an appeal and remand of the same, the trial court again calculated damages that were appealed again by both parties. On appeal, DeLuca raised a whopping 16 issues while Toll raised nine. When faced with potentially 25 issues raised on appeal, the court recalled U.S. Court of Appeals for the Third Circuit Senior Judge Ruggero J. Aldisert’s statement in his opinion prepared in the case of Kenis v. Perini, 452 Pa.Super. 634 (1996), when he said, “When I read an appellant’s brief that contains 10 or 12 points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.” When reviewing DeLuca’s issues raised on appeal, the court further observed that they often overlapped with one another and were inconsistently numbered and lettered.

Some of DeLuca’s arguments regarded the sums of money paid by Toll at one point during the matter. Despite DeLuca’s taking the time to make the arguments, they had virtually no references to places in the record to support their claims. The court noted that Pa.R.A.P. 2119(c) requires references made to pleadings and evidence and such to be specifically cited to in the record. Indeed, the court, citing Commonwealth v. Imes, 603 Pa. 680 (2009), specifically said it would not “scour the record to find the evidence to support an argument.” As a result, the insufficiently cited claims were deemed waived by the court.

The subsequent argument raised by DeLuca presented a conclusory statement without any supporting authority and was therefore deemed waived by the court. DeLuca’s next argument was quickly deemed “demonstrably incorrect” by the court when compared to the clear testimony of the record. DeLuca’s argument after that was also deemed waived because “DeLuca has failed to develop an argument in support of its … claim, and offers no authority at all to support it.” DeLuca also proposed an argument based on the statute of limitations. The court ruled this argument, too, was waived, as “DeLuca [did] not present any citation to the record to support its claim, or to show where Toll’s evidence was deficient.”

Indeed, another of its arguments was dismissed because DeLuca offered “no other substantiation or explanation” aside from a bald assertion offering “no other support of its claim,” not to mention that it “fail[ed] to present or develop an independent argument in support of its claim.” Furthermore, the court noted that DeLuca’s arguments did “nothing to refute the trial court’s findings.” When reviewing DeLuca’s arguments regarding punitive damages, the court indicated that they were “incomplete” and ignored certain issues and/or merely “incorrectly assumed it would prevail on its assertion[s].” The court also believed that DeLuca “misapprehend[ed the court’s] standard of review” and misapplied (or misunderstood) certain constitutional requirements.

As stated above, the Superior Court’s decision is useful as guidance on what to do (or not do) when filing an appeal. First, when filing an appeal, make the issues on appeal concise, specific and clear, as opposed to sprawling, numerous and repetitive. Second, be sure to cite to the record at all times whenever possible, as the court will not do your work for you in this regard. Third, and this seems quite obvious, one’s arguments must be fully developed, based on the facts and evidence available, supported by authority and the record, consistent with the law and clearly explained and articulated to the court.

Originally published on April 24, 2013 by The Legal Intelligencer Blog and can be found here.

Money for Injuries During Marriage Are Divisible After Marriage

James W. Cushing — Wed, 17 Apr 2013 04:00:00 GMT

The recent Pennsylvania Supreme Court case ofFocht v. Focht, 613 Pa. 48, has clarified Pennsylvania case law regarding the status of a court and/or litigation settlement and/or verdict in the context of equitable distribution in a divorce. The obvious question for divorce litigants is this: if one has a potential settlement/verdict, when, if at all, is it divisible in equitable distribution?

23 Pa.C.S.A. Section 3501(a)(8) specifically states that a "cause of action or claim which accrued prior to the marriage or after the date of final separation" is not divisible in equitable distribution. The courts, in the cases of Drake v. Drake, 555 Pa. 481, and Pudlish v. Pudlish, 2002 PA Super 95, made attempts to address actions and claims during the marriage (before separation), with the question at issue being "when does an action or claim accrue exactly?"

In Drake, one of the spouses had a worker´s compensation claim which included an injury and litigation settlement for the same, occurring during the marriage. The issue for the DrakeCourt was to determine whether the spouse´s claim for lost future wages, which extended to a time period beyond the dissolution of the marriage, would be subject to equitable distribution. The Court ruled that as the injury and its settlement both occurred during the marriage, any funds to be paid out in that settlement were to be included in equitable distribution. In other words, the entire settlement was considered to have accrued during the marriage.

In Pudlish, the Court ruled that a claim or action does not accrue until a verdict and/or settlement is entered. Practically speaking, then, an injury and its entire litigation could take place during a marriage, but if the verdict/settlement just happened to take place after marital separation, it would be considered separate property not subject to equitable distribution.

With the Drake and Pudlish cases in full view, the Supreme Court of Pennsylvania in Fochttook the opportunity to clarify the issue of exactly when an action/claim accrues by laying out what is now the definitive rule in Pennsylvania. In Focht, the husband was injured during the marriage and brought an action for his injury which was not settled until after an action in divorce was filed.

The Pennsylvania Supreme Court extended Drake, and specifically overruled Pudlish, by ruling that a settlement and/or verdict and/or any proceeds from litigation accrues under 23 Pa.C.S.A. 3501(a)(8) as soon as the party has the right to file suit. Therefore, if an injury (or similar legally actionable issue) occurs during the marriage, regardless of when it settles or reaches a verdict, any funds flowing from any said action will be subject to equitable distribution.

Originally published in Upon Further Review on April 3, 2013 and can be viewed here.

The Discoverability of Psychiatric Records

James W. Cushing — Wed, 17 Apr 2013 04:00:00 GMT

The issue of the discoverability of one’shealth records took center stage in the matter ofGormley v. Edgar, 2010 PA Super 71, a recent case heard by theSuperior Court of Pennsylvania. The discovery process is designed to facilitate the exchange of information between the parties to litigation. Generally speaking, the standard of what can be requested and required to be revealed in discovery by a party is rather liberal. However, when psychiatric records are the subject of the discovery requests, there are significant limitations as to what a party can request.

There are two competing interests at work when requesting psychiatric records. The first interest is the party’s interest in the privacy of his psychiatric records. The second interest is the ability for an adverse party to adequately defend himself and, in the interest of fairness and equity, be able to secure sufficient documentation for that defense. These two interests come into conflict, obviously, when the documentation sought by one party consists of the documents the other believes to contain private information that he has a right to protect.

The right to the privacy of one’s psychological records has been codified as 42 Pa.C.S.A. Section 5944. The text of Section 5944 is as follows: “No psychiatrist or person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), to practicepsychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services on behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.”

It is interesting to note that when 42 Pa.C.S.A. Section 5944 was passed in 1976, it only made reference to psychologists and their records, and not psychiatrists and their records. Therefore, perhaps counter-intuitively, the Court drew a distinction between psychological records and psychiatric records. The Court has ruled that as the statute specifically refers to psychologists, and could have easily included psychiatrists, the legislature clearly intended to exclude psychiatrists and other sorts of mental health counselors from the privacy guaranteed by Section 5944 (see Miller v. Colonial Refrigerated Transportation Incorporated, 81 F.R.D. 741 (1979). However, in 1989 42 Pa.C.S.A. Section 5944 was revised to include psychiatric records.

The privacy guaranteed by Section 5944 is reinforced by the discovery standards set by Pa.R.C.P. 4003.6 which follows: “[i]nformation may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter. This rule shall not prevent an attorney from obtaining information from: (1) the attorney’s client; (2) an employee of the attorney’s client, or (3) an ostensible employee of the attorney’s client.” Therefore, on the strength of these two statutes and the cases decided thereunder, there is, at least in general, a guarantee of privacy for one’s own psychological and medical records. Obviously, one could argue that the treatment provided by a psychiatrist or other mental health professional is, at least in spirit, “medical” treatment inasmuch as someone seeks the help for healing of some sort.

Despite the guarantees above, and unfortunately for a party attempting to suppress the records describe above, the Court has made it clear that the privacy of such records is not absolute in certain circumstances. One of those circumstances is when a party raises psychological injuries as damages in a case. If a party raises psychological issues, the Court has effectively ruled that doing so functions as a waiver of the party’s privacy over one’s psychological records. To put it simply, a party “waive[s] her statutory privilege by filing [a] lawsuit and claiming psychological damages.” Helper v. Alvis, 63 Pa.D.&C.4^th 129 (2003) and Premack v. J.C.J. Ogar, Inc., 148 F.R.D. 140 (E.D.Pa. 1993). Therefore, “in order to pursue psychological damages, the plaintiff must accede to discovery with respect to mental-health care providers with whom he or she has consulted.” Loftus v. Consolidated Rail Corp., 12 Pa.D.&C.4^th 357 (1991). If the party continues to refuse to produce the records, it will be at the pain of dismissal of any and all claims for psychological injuries. Id.

The raising of a mental health condition as damages flowing from an accident was the issue raised in Gormley v. Edgar. The Plaintiff in the aforesaid matter alleged she suffered from anxiety as a result of an accident she claimed was caused by the Defendant. The Court ruled that by so doing she placed her mental health condition directly at issue, rendering her mental health records, at least in part, discoverable. The Court also ruled that if one alleges the aggravation of a pre-existing mental health condition, records of prior treatment for the same are also discoverable. Similarly, the Court finally ruled that mental health records predating the accident at issue are also potentially discoverable as a defendant may wish to prove that the mental health condition alleged pre-existed whatever a plaintiff alleges is its cause. Again, as stated above, these records only become discoverable when a party raises his mental health as an issue in the case.

Although, in general, a party must reveal his psychological records if one raises psychological injuries, the waiver described above is not completely unfettered. The Court recognizes that psychological records are extremely sensitive and the discovery process could inappropriately reveal irrelevant psychological issues of some sort. The Court has made at least three different options available in an effort to adequately, though perhaps imperfectly, balance the two conflicting interests at work in given a matter. The three options are as follows: (1) have formal discovery in the presence of counsel which would afford counsel the opportunity to object on the basis of relevance and other appropriate reasons. Marek et al. v. Keyer, M.D., et al., 733 A.2d 1268 (Pa.Super.1999). Presumably, a deposition of the psychologist(s) would be scheduled, who would be instructed to bring his file regarding a client with him to the deposition. Over the course of the questioning, the records would be produced as appropriate and the attorney would object as appropriate; (2) request the Court to conduct an in camera inspection of the records and if the records do not reveal the information one believes it does, the records will remain protected by Section 5944. Commonwealth v. Kyle, 367 Pa.Super. 4848 (1987); and (3) request the Court to order its own psychological evaluation under Pa.R.C.P. 4010(a)(3). Of course, this remedy would implicitly require the client to permit his records to be reviewed by the independent psychologist and would, presumably, have to respect the conclusions reached in the Court ordered psychological report. Obviously, more than either of the above options, this option carries with it the greatest risk of any undesirable information being revealed and used against the client.

In the final analysis, it appears that a party cannot be forced to reveal his psychological records to an opposing party. However, if he wishes to proceed with claims alleging psychological damages, that party may not attempt to suppress them. Instead, the opposing party has a right to see those records so that he may have a fair and equitable opportunity to raise a proper defense the claims leveled against him. The client has the options of withdrawing the psychological claims or moving forward and allowing the records to be revealed to the opposing party. If the client elects to move forward, he may have one or more of the three options above to mitigate the loss of privacy and successfully suppress, at least in part, his psychological records.

Originally published in Upon Further Review on June 8, 2010 and can be found here.

Big Brother Has Arrived

Faye Riva Cohen — Thu, 11 Apr 2013 04:00:00 GMT

Many years ago it was the stuff of science fiction that our society would evolve to the point that everyone’s private information and whereabouts, and sometimes thought processes, would be monitored by outside forces, primarily law enforcement. To a large extent that fiction has become truth, and much of that truth has been fostered by people themselves, many of whom indiscriminately reveal many private things about themselves, including their whereabouts, purchasing choices, what they like and don’t like, information about their friends and relatives, and much more. In fact, there has been a sea change in our society about people’s willingness to provide information to other people, stores, and companies, and an equivalent diminishment in the number of people making attempts to protect their privacy. Even people’s perceptions of what information they feel is really private has drastically changed, but this is often generational.

I have seen the repercussions of this sea change in some of the cases involving clients we represent, and I will give some examples. The lesson of all of these examples is to think very carefully about the information (both in print, photographs or video) you want to divulge to others, and to realize that much of what you divulge will not only not remain private, but may be subject to being discovered informally or through the legal process.

A.Our client’s wife, who was pursuing primary custody of the couple’s children after their separation, informed the court that she required a continuance of a hearing because of some emergency. However, on her public Facebook page she posted photos of herself attending the opening of a new casino, on the same day she had the alleged “emergency”, stating that she couldn’t miss this significant event. The judge was persuaded to rule against her based on her lies and her apparent lack of character. In fact, in the area of family law, social media has had a tremendous impact, both in destroying marriages, as spouses can view cheating behavior posted by the cheating spouse or their significant other, and by revealing information about behavior people used to have to keep private, but now boast about.

B.Our client was accused of sexually harassing a co-worker with text messages. Prior to consulting us he agreed to sit down with a human resourcesrepresentative, open up his private e mail account, and peruse the messages with the representative. Also before he consulted us he agreed to produce his telephone records providing all of the text numbers for a certain time frame. I would have instructed him, had he consulted me in advance, that he may not have been required to provide access to his personal information, as it would have exposed private information of others. But, once the client waived his privacy rights, we could not reinstate them. Once the numbers were provided, our client assured us that none of the numbers were unknown to him and that everyone he had texted was family or friends. Unfortunately, that was not the case, and the number of the person who he had allegedly harassed appeared, and our client was fired. Although it is possible that our client would have been fired if he had not cooperated with an investigation, he might still have had a chance to receive unemployment compensation benefits, as it would have been his employer’s burden to prove that he committed willful misconduct, and without the telephone records, that may not have been possible.

C. Our client, a student teacher graduating from college, gave his e mail to a high school student whose classroom he had been assigned to, who represented that she had questions involving her education. When she e mailed him, she veered into areas of conversation that were flirtatious. As it was the evening hours, our client was exhausted, and was in the midst of packing and moving, he engaged in banter with her via instant messaging. The student preserved their conversation on her computer, and her mother ran across it and complained about the student teacher. The student teacher, who had an impeccable educational career until that time, had been involved in youth activities for years, and had stellar references from other teachers and professionals, was denied his teaching license after a lengthy and expensive appeals process because his college, which did not discipline him, stated on a licensing form that it could not give him a character reference for teaching.

The courts are increasingly ruling that when people display themselves in any format which, by words or actions, they don’t intend on keeping private, this information is subject to discovery and presentment as evidence in a disciplinary proceeding or legal forum. As a result of people’s behavior it will be more and more difficult in future years to limit information publication.

Who is an Independent Contractor?

Faye Riva Cohen — Thu, 11 Apr 2013 04:00:00 GMT

A “hot button” topic these days is whether a worker is an independent contractor or an employee. This topic arises both in work and tax arenas, and is not a simple issue. In the work arena the issue often arises when someone applies for unemployment compensation benefits. In Pennsylvania someone who is an independent contractor is not eligible for unemployment compensation benefits, and is considered self-employed.

Pennsylvania Courts use a two-part test to make this distinction. It is: (1) whether the worker was free from control and direction in the performance of the work; and (2) whether the business is one that is customarily engaged in as an independent trade or business. If the alleged employer opposes a claim for benefits based on an independent contractor defense, the alleged employer generally has the burden to prove that the worker was not an employee.

To determine whether a worker is free from the control and direction of an employer in the performance of work, Pennsylvania Courts frequently consider and weigh eight factors. 1. How the job was performed? Does a worker set his own hours, create his own work/task agenda, and/or decide how many other workers are needed for a particular task? 2. Whether there was a fixed rate of pay, who decides the cost of the services being provided, and who decides when/if raises are granted? The amount of money a worker earns is not significant in the analysis. 3. Whether taxes are deducted from the worker’s pay, or is a W2 or a 1099 issued? 4. Whether the alleged employer supplies the tools necessary to carry out the services being provided? 5. Does the alleged employer offers on-the-job training? 6. Whether there were regular meetings with the alleged employer? 7. If the business fails, will the worker only lose his job, or will he have the responsibility to satisfy the business’s potential creditors? 8. Does the worker work exclusively for one employer, or is he free to accept other jobs at the same time?

Ultimately, all of the above factors can be reduced to two words: The first is FREEDOM. Does the worker have the freedom to set his own schedule, to establish his own pay rate, to compete with the business? The second is RESPONSIBILITY. Does the worker pay his own taxes, use his own tools, and/or bear the risk and burden of financial loss in the business?

Generally under the IRS regulations, a worker is deemed to be an independent contractor rather than employee if the employer has the right to control or direct only the result of the work and not the means or methods by which the results are accomplished. A worker is classified as an employee if the employer has the right to control what will be done and how the services will be performed.

The IRS regulations focus on (1) relationship of the worker and the business, (2) the degree of control exercised by the business on the worker, and (3) the worker’s degree of independence. The IRS also has regulations specific to certain jobs and salespeople, drivers, and other persons who generally don’t work in an office setting and has further criteria to determine iffederal taxes should be withheld for them. In some cases although W 2’s versus 1099’s are provided, some taxes need not be withheld and some expenses can still be deducted by the worker.

The IRS seeks to qualify as many workers as possible as employees rather than independent contractors, so that taxes can be collected. IRS regulations take into account the behavioral control, financial control, and the type of relationship of the parties in making this analysis. Many of these factors are the same ones as discussed above in the unemployment compensation context, so they won’t be repeated. Other factors which are considered in determining the relationship between a worker and an employee are: whether there is a written employment contract; whether the worker is provided any benefits such as insurance, pension plan, vacation pay, or sick pay; and whether there is a finite end date for employment of the relationship.

If a worker is erroneously classified as an independent contractor rather than an employee, the employer will be held liable for all of the employment taxes, but if the employer has a reasonable basis for misclassifying a worker, they will not be held liable. Such relief is only provided if the employer filed all required federal information returns on a basis consistent with the treatment of the worker, such as showing that all workers in a substantially similar position were classified in the same manner.

Businesses should consider reviewing their current payroll practices. Documentation and record-keeping procedures should be reviewed and updated if necessary. Even if a worker is found to be misclassified by the employer, the employer may still be entitled to partial relief from federal employment taxes if they participate in the Voluntary Classification Settlement Program (VCSP). There are specific requirements for participation which I won’t delve into here. SUFFICE IT TO SAY THAT THE QUESTION OF EMPLOYEE CLASSIFICATION IS QUITE COMPLICATED AND BECOMING MORESO.

CONSTRUCTION CLAIMS and DISPUTES – (Part 5)

George T. McLaughlin — Mon, 01 Apr 2013 04:00:00 GMT

Pricing Construction Claims – (continued) McLaughlin and McLaughlin’s Project Professional post is the fifth in a Subject Series Construction Claims and Disputes. This Subject Series contains discussions regarding potential and actual construction claims and disputes situations. In this series, we focus on the key aspects of construction claims and disputes management (rather than mechanics). This [...]

CIVIL DISOBEDIENCE WHILE SHOPPING

Faye Riva Cohen — Thu, 28 Mar 2013 04:00:00 GMT

I had an unfortunate experience at a store the otherday. It is not the first time I have hadthis type of experience. As my Firm sends out thousands of greeting cardsduring the winter holidays, I decided to buy extra cards in case we ran out ata chain store in October. When we decided to send out a printed post cardinstead of cards this year, I tried to return the 23 boxes of cards I hadbought. First I tried to return them the next month at the store where I boughtthem in southern New Jersey, but it was closed for a time after it was floodedout by Superstorm Sandy. When I tried to return them at another store in NewJersey the same day I was told that I couldn’t receive a cash refund, just aneven exchange. I was shown the back of my receipt which stated that “[w]e willgladly exchange any unopened item with original receipt. We do not offerrefunds.” As I didn’t recall all of the items I needed that day, I waited untilI had free time and I could make a list of things for which I would exchangethe cards.

When Ireturned with my cards to the third store recently I was told to do my shoppingand I would be credited for the cards at check out. However, when I tried tocheck out I was told that I couldn’t return the cards because “seasonal” itemscould not be returned. I asked what that meant because cards that say “peace onearth” have no season. That also means that items purchased for Valentine’sDay, St. Patrick’s Day, July 4, Halloween, etc., in fact any holiday, can’t bereturned, even the day after the holiday. When I asked where that policyappears in writing, either on the receipt, which specifically says theopposite, or anywhere posted inside the store, I was told it was a new policyand the staff was told to enforce it.

I am alawyer. I have been trained that the written word is stronger than the verbalword. I have been taught that policies which are not in writing and advertisedto consumers can’t be changed on a whim without notifying those consumers. Inother words, telling me that I was wrong, when I felt the store staff wasclearly wrong, was like placing a red cloth in front of the bull. In thisexample I am the bull, and this bull doesn’t take any b.s. So, what did I do?Well, I engaged in an act of civil disobedience. I told the staff that I wasnot moving from the checkout aisle until they honored the chain store’s writtenexchange policy. Not only was I not moving, but they could call the police ifthey wanted me to move, and then I would be happy to sue the chain store andthe staff involved. I am not proud to say this is not the first time I havedone something like this. I wouldn’t recommend it for people who aren’tlawyers, and it is even dicey for lawyers. But, someone has to enforce theprinciple of a policy which is clearly wrong, and would most likely be found tobe illegal if tested in a court of law.

Well,this is how the three staff I was dealing with, and I will call them Tweedlydeedee,Tweedlydeedumb, and Tweedlydeedumber, dealt with the situation. Tweedlydeedee,the cashier closed down her line, walked away, and didn’t open another line,leading to long lines at the other registers, and customers giving me dirtylooks, as people in a hurry don’t care if I am protecting their principles aswell. The assistant managers, the other two Tweedlydeedumb and Tweedyldeedumber,starting calling other stores and telling them how mean I was and howunreasonable I was, and how I was threatening to sue. They apparently reachedother mental heavyweights who agreed with them, except the last person theyreached agreed with me. So, after a half hour of civil disobedience, thecashier returned, checked me out with a nasty attitude, and told me she hopedshe wouldn’t get in trouble for giving me a refund, which by the way, onlyamounted to half of my purchase that day. The one bright spot was an assistantmanager who wandered in, although he was off duty that day, and he saidimmediately that even though that may be their new policy, as the receipt saysotherwise, and the object was to please the customer, he would recommend givingme a refund. He also suggested that I drive to the original flooded out store,and take up the matter with them, but then he apologized. He also apologizedfor the protracted and hysterical reaction of the two Tweedlydumbs, and he wasclearly embarrassed that they weren’t taking his advice to make the customerhappy.

So, theobject lesson is to keep and read the terms of a receipt, stand one’s groundfor one’s principles, even if others don’t take a stand, and in my case,deprive that store of the many hundreds of dollars worth of business I givethem each year because in their view “the customer is always wrong”.

DEBUNKING COMPLAINTS AGAINST LAWYERS

Faye Riva Cohen — Thu, 28 Mar 2013 04:00:00 GMT

I frequently receive calls from potential clients complaining about other lawyers who represent them, have represented them, or they have called to represent them. Below are some of my favorite call topics, and my responses to them.

Comment: “I have called or e mailed many lawyers and no one but you have returned my calls or e mails.”

Response: A lawyer does not want to talk to someone who is fishing around for free advice, and calls 15-20 lawyers or more in the process. A short inquiry is fine, but some callers want to spend a large amount of time discussing their situation. Lawyers generally only need specific information to determine if callers have a viable case, so please be respectful of their time and the questions you ask of them. A general e mail is even worse, because it is unclear how many lawyers have been contacted via one e mail. I have had many e mails sent to me via websites which are addressed to lawyers with different names. The inquirer did not even take the time to change the name. Why would a lawyer even respond to such an e mail? There are also many scam e mails lawyers receive from all over the world, and it is difficult to tell which are legitimate.

Many inquirers do not seem to realize that “a lawyer’s time and advice are his stock in trade”, a saying that is usually attributed to Abraham Lincoln. Let’s do the math. If a lawyer gets 20 calls a day from prospective clients and spends an average of 15 minutes on each call, they have spent 5 hours on the phone and they haven’t earned a dime if all of those callers are trolling around for free advice. They have businesses to run and expenses to meet. These same callers would not dream of taking up another professional’s time free of charge.

Comment: “My lawyer didn’t do anything, or didn’t say anything in court.”

Response: Although this may be the case, in my many years of experience I find this is rare. Lawyers often do much of their work behind the scenes, and do not communicate every single thing they do to their client, as this would be even more time-consuming, especially to clients who pay hourly, and who would not appreciate being charged for this service. Clients need to trust that their lawyers are putting in the necessary time to assist them, and in contingency fee cases, lawyers don’t get paid if they don’t settle or win a case, so why would they not do the work to ensure success? Lawyers also cannot guarantee the results of any case.

Lawyers who appear in court have to measure what they say. They don’t often want to raise numerous objections which may offend the judge and delay the proceedings; they may determine from the judge’s mood or nature of the case that saying less would be better; and they may decide to play the good layer and let the opposing lawyer rant and rave to their client’s detriment. Clients don’t always understand these nuances and think that the lawyer who rants and raves is the better lawyer. They probably get this impression from television, but a real courtroom experience is very different from a televised courtroom experience.

Comment: “Many other lawyers have told me what you said, but I don’t believe it and I want to take my chances that I can convince the judge of my case on my own.”

Response: I often say to clients, would you perform brain surgery on yourself, and if not, why do you think you know more about the law and courtroom procedure than a lawyer? Do not mistake your ability to file a case in court as a pro se litigant with the certainty that you can represent yourself successfully. The law and the rules surrounding it are extremely complex and vary from court to court and county to county. Of course there are some people who represent themselves successfully, but this is a very rare outcome in a complex case in a court other than a first level court.

Comment: “It isn’t fair, where is justice?”

Response: Life in general isn’t fair, and justice depends on many things. A soup to nuts lawsuit on certain matters costs a minimum of $75,000-$100,000 and upwards for a lawyer’s time, plus thousands of dollars in court. If one can afford to pay a lawyer that amount, that is great. If one can find a firm to accept the case on a contingency fee basis (usually in serious injury or death cases), that is great, but for the vast majority of others, their path to fairness and justice in the legal system will be seriously limited by what they can afford to spend.

Comment: “I spent all of my money (fill in the amount, but it is usually into the many thousands of dollars) on a lawyer and now I have no money left, so can you take my case on a contingency fee basis?”

Response: I love these calls, and wonder, why wasn’t I the one they had thousands of dollars to pay? It is not a lawyer’s responsibility to pick up a case free of charge after another lawyer/s have worked on a case and gotten paid. Oftentimes the cases at issue are those in which a lawyer can’t possibly make money (although the callers assure the lawyer will make millions from the free publicity), such as custody or support cases, or which are so far along in the legal process, or so many mistakes have already been made, that it is a losing case.

My final comment is please be respectful of a lawyer’s time and advice, as it is their stock in trade, and should not be wasted.

Permanent Legal Custody Does Not Necessarily Mean 'Permanent'

James W. Cushing — Tue, 26 Mar 2013 04:00:00 GMT

In the recent case of In re: S.J., heard by the Pennsylvania Superior Court (case number 584 EDA 2012), the Court implicitly ruled that “permanent legal custody” in a child dependency case is really only a euphemism for permanent for now. Dependency practitioners should keep this nuanced definition of “permanent” in mind when pursuing permanent legal custody of children.

In S.J. the Department of Human Services (“DHS”) filed a petition for a goal change with regard to the child at issue (“the Child”). Specifically, DHS had ruled out reunification with the Father as the Father had not been involved with the case since its inception and had not visited the Child or contacted DHS. Furthermore, DHS did not believe adoption by the foster mother to be a viable option as the biological mother still had a bond with the Child and the foster mother did not want to adopt. As a result, DHS advanced the position that the foster mother should be granted permanent legal custody.

Meanwhile, the biological mother testified that she was currently being rehabilitated for drug use and would continuerehabilitation for about a year-and-a-half more which would preclude custody of the Child over that time. It is notable that the biological mother did not contest DHS’ position that the foster mother should receive permanent legal custody.

The Child Advocate, the attorney representing the Child, took exception to DHS’ pursuit of the foster mother’s permanent legal custody when she learned, through the biological mother’s testimony, that the biological mother was advised by her attorney that she could file for custody when she believed she was ready for it. As a result, the Child Advocate objected to granting permanent legal custody to the foster mother.

The Child Advocate did not believe granting the foster mother permanent legal custody to be in the best interests of the Child because, as evidenced by the biological mother’s intention to pursue custody in the future, the permanent legal custody could, in fact, be something much less than permanent.

The Child Advocate argued that pursuing permanent legal custody is a rather litigious undertaking, involving several hearing dates over a long period of time, sending the Child’s life into upheaval. The Child Advocate was especially sensitive to the fact that after all of the upheaval to secure permanent legal custody, the biological mother could simply file for custody in family court, and undermine the permanent legal custody placement, rendering all of the upheaval pointless. Over the Child Advocate’s objections, the trial court granted the foster mother permanent legal custody; the Child Advocate appealed this decision.

In the appeal, the Child Advocate argued that the plain meaning of the word “permanent” in the underlying statute, 42 Pa.C.S.A. Section 6351, is as defined by any English dictionary, which is to say something perpetual and unchanging. As a result, the Child Advocate argued that once permanent legal custody is granted, it forecloses a parallel action for custody in family court. Once the permanent legal custody is granted, the Child Advocate argued, the biological mother could not file a motion to vacate it, but must again have the Child declared a dependent. To that end, per the Child Advocate, the trial court ought not have ruled out adoption for the Child as there was a lack of evidence regarding the Child’s bond with the foster mother. Ultimately, the Child Advocate argued that the trial court’s decision was not in the Child’s best interests.

When rendering its decision, Superior Court ruled that the trial court did not abuse its discretion, and that the trial court did, in fact, consider the Child’s best interests. The Court found that the trial court found credible evidence of the safe and caring environment the foster mother provided the Child and placement with her certainly benefits the Child. Indeed, the Superior Court ruled that the trial court thoroughly reviewed all of the evidence and its ruling was consistent with the same.

The primary thrust of the Child Advocate’s argument centered on the biological mother’s indication that she intended to pursue custody at some point in the future. The Court refused to entertain any speculation as to the future possible actions of the biological mother. Indeed, the Court noted that the biological mother may never pursue custody, rendering the Child Advocate’s arguments moot and/or irrelevant. In fact, the Court’s ruling implies that delaying permanent legal custody due to accommodating an indefinite and speculative custody action taken by the biological mother would not be in the best interest of the Child.

Ultimately, the Court’s decision, while perhaps not explicitly stating it, simply accepted the fact that granting “permanent” legal custody is, in actuality, something much less than that. Instead, it is something that could very easily become impermanent upon an appropriate action by the biological mother. The Court did not consider whether the Juvenile Act and other appropriate law, statutes, and rules permit a biological mother to regain custody after the dismissal of a dependency petition and award of permanent legal custody, implicitly indicating that since the biological mother in this case had not yet filed for custody, the implications for doing so were not presently at issue.

Originally published in "The Legal Intelligencer" on March 26, 2013.