Land Banks

One thing for certain, when you sustain an injury, undergo surgery and your leg is placed in an immobilizer, you have more time to read all those books you had been planning on reading. I recently took the opportunity to read Philip Myers, American Rust, a work of fiction that takes place in the Mon Valley. Myers’ description of decaying communities, abandoned factories, deteriorating houses and vacant buildings is far more real than fiction. A drive through many, many communities in Fayette County and in Southwestern Pennsylvania is an eye opener to any visitor. The number of dilapidated homes and abandoned structures increases daily. These abandoned structures may offer sanctuary for drug dealers and criminals and substantially devalue neighboring properties and entire neighborhoods. Business districts are polluted with dilapidated buildings that are unsightly and hazardous. People living in these communities are acutely aware of the problems, but no one is able to offer any real and practical solutions.
Obviously, Fayette County is not the first area of the country to experience economic decline and the resulting deterioration and abandonment of homes, structures and factories. Other communities and other areas of the country have also suffered as the "rust belt" continues to expand both geographically and in severity.

One plausible solution is a Land Bank, a public authority created to manage and possibly develop tax foreclosed properties. Land Banks have been a necessity in many major American cities where property vacancies run as high as Fifteen (15%) Percent. Obviously, vacant and abandoned properties do not produce sufficient tax revenue, if any, and have an extremely negative impact. Most are used for illegal activity and depreciate neighboring properties, further stressing local governments. Residents feel unsafe in their own neighborhoods and are constantly reminded that their homes, their life investments, are being depreciated in value due to the abandoned and deteriorating structures in their communities.

A Land Bank using government funds, grants and charitable contributions can acquire abandoned properties, demolish them and revert the properties back to usable condition. The now vacant land can be transferred to adjoining property owners for yard extensions or garage construction or, if large enough, for owner-occupied home development. The properties will no longer be available for illicit purposes and will certainly help to rid the neighborhood of the criminal activity. In addition, the now usable properties will create reinvestment in the community, revitalize the otherwise blighted neighborhoods and at the least "clean up" the deteriorated business districts. Such action will benefit all levels of government including the local municipality and school district. The removal of public nuisances will assist in crime prevention and the promotion of economic development.

The time for action is now! A summit of government leaders, municipal, county, state and federal along with church leaders, community leaders and business leaders must be held. The primary purpose of the summit would be the development of a County Land Bank with a specific and stated purpose of acquiring dilapidated and abandoned structures. If legislation is needed, state officials must act promptly. The situation is so acute that the typical governmental red tape and bureaucratic haggling cannot be tolerated. The Bank must be established through a unified effort and the work of elimination of blight must begin immediately.

Submitted by:

James T. Davis, Esquire

The Importance of Seatbelts:

How many times have you opened the morning paper only to learn of another traffic fatality? More often than not, as you read the article, you learn that the victim was an unrestrained passenger or driver. From 1975 through 1996, according to the National Highway Traffic Safety Administration (NHTSA), seatbelts saved an estimated 90,425 lives. An estimated 75,000 lives were saved between 2004 and 2008. Each year more than 40,000 Americans are killed in motor vehicle crashes. Some experts estimate that the number could be reduced in half by merely "buckling up". According to NHTSA, the lap-shoulder belt system, if used by drivers and front seat passengers, will reduce the risk of fatality and serious injury by Fifty (50%) Percent. The lap belt shoulder to hip belt protects the internal organs and minimizes the possibility of head contact or excessive neck motion thereby helping to prevent head and neck injuries when crashes occur. Unrestrained drivers are typically thrown against the steering wheels or ejected from the vehicles. Unbelted passengers strike the dashboard or are propelled through the windshield. The likelihood that a passenger or operator will be ejected in a crash is twenty five times greater when unrestrained.

The cost resulting from injuries or fatalities to unrestrained drivers and passengers is astronomical. It is estimated that the cost to Americans resulting from higher insurance premiums, higher medical costs and higher taxes is more than $130 billion dollars annually.

Although it is the law in Pennsylvania that drivers and front seat passengers be restrained, the difficulty in enforcing such a statute is obvious and its impact is at best minimal. Public awareness, particularly among young and inexperienced drivers and front seat passengers, is essential. People must be constantly and repeatedly reminded of the extreme dangers an unrestrained driver or passenger is subjected to. A concerted effort to continue to educate and remind the public of the danger one exposes him or herself to by failing to use the seatbelt is essential. Seatbelts save lives, that is common sense and a statistical certainty! Each of us must remind ourselves of the importance of wearing seatbelts and continually remind all of our loved ones and friends.

Submitted By:

James T. Davis, Esquire
jdavis@davisanddavislaw.com

Motorcycles are Everywhere

We have all seen the signs in yards and at busy intersections reminding us that there are motorcycles on our highways. As spring turns to summer, we see more and more motorcycles. Despite the effort of many motorcycle organizations such as ABATE, motorcycle accidents are on the rise and motorcycle fatalities continue to increase. In 2008 there were 5,290 motorcyclist fatalities which accounted for 14% of the total crash fatalities in the United States. This figure represents the 11th consecutive year that there has been an increase in motorcycle crash fatalities.

Many believe that the increase in motorcycle crashes and motorcycle fatalities is directly related to the increase in the number of motorcycles on our highways, while others attribute it to larger, faster motorcycles and the reluctance of many motorcycle operators and passengers to wear helmets. Nearly 50% of the motorcyclists killed were over the age of 40, nearly a third were under the age of 30 and approximately 25% involved riders with a blood alcohol over .8 percent.
While there are numerous reasons and causes for motorcycle crashes, the lack of awareness of automobile, pickup truck and SUV drivers has played a significant role in motorcycle accidents and motorcycle fatalities. As a biker, I know firsthand that some drivers just don’t see the motorcycles on the highway. I have discussed this dilemma with many bikers and all have relayed harrowing experiences when a car pulls out in front of them or nearly runs over them as they proceed slowly on a country road. I have personally represented numerous motorcyclists who were injured as a result of motor vehicle/motorcycle crashes, cases where the motorcyclist was stopped at a stop sign and struck by a motor vehicle turning into the same intersection or the motorcyclist was proceeding along the highway when a car pulls from a stop sign directly into his path. In nearly all of these cases, the crashes relate to the lack of awareness of the motor vehicle driver. In other words, the motor vehicle driver just did not see the motorcycle.
What can be done about the lack of awareness? Obviously, we must continually and repeatedly remind drivers, experienced and inexperienced, that there are motorcycles on our highways and they are truly everywhere. Perhaps drivers should be tested when obtaining their operators license or when seeking a renewal concerning motorcycle awareness. A simple operators simulation involving other cars and motorcycles on the highway could be used as a test and a reminder to be observant. In addition, motorcyclists should be encouraged to wear bright colored or reflective clothing. Finally, all of us should be reminded that motorcycles are truly everywhere and when determining whether there is a clear right to proceed, our minds must be focused not only on whether there are oncoming cars, pickup trucks or SUV’s, but also motorcycles.

Submitted By:
James T. Davis, Esquire
jdavis@davisanddavislaw.com

The Differences between Criminal and Civil Law

After O.J. Simpson was acquitted in his double murder trial, most American’s thought that the case was over. They believed that in accordance with the Fifth Amendment of the United States Constitution that "no person shall be subject for the same offense to be twice put in jeopardy of life or limb..." Why then was Simpson able to be sued and ordered to pay damages? The reason lies in the kind of actions brought against Simpson. First he was tried criminally and even though he was acquitted or found not guilty, he was still liable to be sued under civil law procedures for damages. In his case, two (2) trials reached very different conclusions. How was this possible? One of the reasons is that there is a far greater burden of proof in criminal cases than exist in civil cases.

Several questions must be asked to point out the differences between civil cases and criminal cases. Initially, we have to know who are the parties involved. In civil cases, the parties are private individuals or individuals and corporations. In criminal cases, the government is involved as a prosecutor, either the federal, state or local government. For example, in Pennsylvania, a criminal case is between the Commonwealth of Pennsylvania as the Plaintiff and the individual who has been charged with a crime, as the Defendant.

The next question that must be asked to establish a difference and distinction between civil and criminal cases is what is the nature of the case or what must the Court decide? In civil cases, Courts must determine whether one party has caused harm to the other party, in other words, the case deals with rights and duties between individuals or corporations. In criminal cases, the issue to be decided by the Court is whether one party has violated a law or a statute that prohibits some type of activity. That is, the case deals with offenses against society as a whole even if the offense is against one single person.

The next question to be decided is the penalty or remedy being sought in the case. In civil cases, individuals, the Plaintiffs, sue for damages either monetary or otherwise, such as specifically performing a contract, to compensate for their perceived loss. In criminal cases, the government acts as the Plaintiff and the federal, state or local government seeks to punish the Defendant or deter the Defendant from further action or to rehabilitate the Defendant so that peace in the community is preserved.

Finally, to point out the distinction between civil and criminal cases, one must ask what must be established in order to win? Or in other words, what is the burden of proof? In a civil case, the Plaintiff must establish their case by a preponderance of the evidence to support the claim. An example of the preponderance of the evidence statute is the slight tipping of scales one way or the other. In percentages, anything greater than fifty (50) percent, establishes the preponderance of the evidence. In a criminal case, the burden of proof on the government is much, much, much greater. In order for a person who has been charged with the crime and is presumed to be innocent of that crime by our laws and customs, the government, in order to prove guilt, must establish that the person is guilty beyond a reasonable doubt. Considering the example of the scales, the government must weigh those scales far greater than a mere tipping in order to establish guilt beyond a reasonable doubt. Under Pennsylvania Law, a reasonable doubt is a kind of doubt that would cause a reasonable person to hesitate, or pause before acting in an important affair of their own lives. A reasonable doubt must be an honest doubt and if a reasonable doubt exists in a case or in any part of the case, it must cause the Defendant to be acquitted or found not guilty of the crime.

The natural question then becomes: "why do criminal cases require a higher burden of proof than civil cases?" A fundamental answer is that the judicial system requires a higher burden of proof in a criminal matter because the remedy for violations of criminal laws often requires the taking away of the individual’s fundamental rights including the rights of life, liberty or property. If you are convicted of a crime especially a serious crime, there is a great chance you will be incarcerated and placed in jail or prison. Before the government can take away those rights, it is necessary that they prove the individual’s guilt by establishing solid proof of that guilt which is proof of guilt beyond a reasonable doubt. A civil case obviously requires less of a burden because the remedy is money or other damages that do not affect life or liberty but only property.
One of Pennsylvania’s young heroes, two time Super Bowl winning quarterback, Ben Roethlisberger of the Pittsburgh Steelers, has been accused of sexual assault. Even though this action took place nearly a year ago, he has never been charged with a crime and there has not been any criminal prosecution or criminal investigation and it appears that none will ever take place. However, he has been sued civilly and the burden of proof on the accuser is proving liability, for the purpose of seeking monetary damages, by a mere preponderance of the evidence.

Submitted by:

Samuel J. Davis, Esquire

sdavis@davisanddavislaw.com

Right-to-Know Policy

On January 1, 2009, Pennsylvania’s Right -to-Know Law, commonly referred to as the Open Records Law, took effect. The original legislation which completely revamped Pennsylvania’s existing Right-to-Know Law was signed by Governor Rendell on February 14, 2008. The Law itself presumes that any record in the possession of a Commonwealth agency or local agency is public and the burden of proving that the record is not public is placed on the agency. The Law defines agency as any local, intergovernmental, regional or municipal agency and authority, counsel, board, commission or similar governmental entity. An agency would also include a political subdivision, intermediate unit, public, charter and/or cyber or trade school. The Right-to-Know Law applies to all Commonwealth agencies, however judicial agencies must only comply as to their financial records. The Law itself establishes an office of open record which bears the responsibility of developing regulations relating to the implementation of the Law, a uniform request form, determination of appeals from any denial by a governmental agency to a records request, establishing and approving fees as well as he enforcement of the Law and the issuance of advisory opinions to agencies concerning requests for documents.

As the Law relates to school districts, townships and boroughs as well as other local agencies, the Law provides in summary, that each develop policies and procedures for records requests, appoint an Open Records officer, provide contact information for their Open Records officer, develop a form for records request and established fees to be charged.

A record, as referred to in the legislation, is information which would include documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, electrically stored or maintained information, data processed or image processed documents relating to the activities of the agency that are received, created or retained relating to the business or activity of the agency. Certain records are exempt such as a records that relate to the loss of funds, that might be harmful to an individual, that might impact public safety or might impact building security and computer security. There are additional exemptions set forth in the statute which can be reviewed on the Office of Open Records website, http://openrecords.state.pa.us.

The Right-to-Know or Open Records Law is a complete codification of previous legislation which had been designed to develop transparency in government but to many failed to achieve that goal. The current legislation will certainly be tested but should be applauded as a significant step in developing true transparency in government, for in a democracy a government of the people and the government itself as well as it’s records must be open to the people.

Submitted by:

James T. Davis, Esquire

jdavis@davisanddavislaw.com

“Anti-Nepotism Hiring Policies”

Much has been written about school boards and the hiring of school board directors’ relatives. Recently a local news editorial championed what it referred to as "Anti-Nepotism Hiring Policies". That same editorial commended a school solicitor for authoring a Letter to the Editor in support of such a policy.

The attorneys at Davis and Davis have, for more than three decades, represented school districts, townships, and other municipal bodies. We recognize that a solicitor, be it a school or municipal solicitor, does not serve in a policy making position. Policy determinations must be made by elected officials and not the attorneys hired to assist those officials in navigating the various and sundry laws that may apply to the actions contemplated by such bodies.
Whether you believe that anti-nepotism hiring policies are necessary or not, one must be reminded that the Pennsylvania State Legislature has addressed the issue of the employment of relatives by school directors as well as borough and township officials. The Pennsylvania School Code provides that no school director shall vote for a teacher candidate who is related to that member of the board. The list of relatives extends from a parent to a first cousin.

This provision of the School Code has been interpreted to mean that not only can a school director not vote for his or her relative, but cannot participate in the discussion and cannot solicit support from the superintendent or other board members. The entire discussion of Anti-Nepotism Hiring Policies fails to recognize the action taken by the Pennsylvania Legislature and the codification of that action in the School Code. Needless to say, similar legislation exists which is applicable to township supervisors, borough counsel members, authority members and similar municipal servants.

We at Davis and Davis remain cognizant of our role as solicitors and recognize changes in policy in a democracy must always be made by elected officials and not by the attorneys which they have employed.

Submitted by:

James T. Davis, Esquire

jdavis@davisanddavislaw.com

Davis & Davis Blog will be updated soon!

In the coming days, our Firm's Blog will be updated. We will be posting several articles in 2009 and we would appreciate any feedback. Please let us know if you would like a specific topic addressed on the Blog. Have a happy and healthy 2009!