tag:blogger.com,1999:blog-52534259526428617652023-11-15T12:47:05.708-05:00Davis & Davis Law BlogUnknownnoreply@blogger.comBlogger22125tag:blogger.com,1999:blog-5253425952642861765.post-44860096823473635532016-03-16T15:43:00.002-04:002016-03-16T15:43:45.336-04:00Senate Bill 166: an opportunity for a clean slate
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On February 16, 2016, Governor Tom Wolf made an important
decision that could impact the lives of many Pennsylvania residents.<span style="mso-spacerun: yes;"> </span>Pennsylvania Senate Bill 166 will afford
residents who have committed low level first time offenses sealed. <span style="mso-spacerun: yes;"> </span>SB 166 goes into effect on November 14, 2016.
Pennsylvania joins twenty seven other states that will permit expungement or
sealing of some non-violent misdemeanor offenses. </div>
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<span style="mso-tab-count: 1;"> </span>Prior to
the enactment of Senate Bill 166, the ability to have one’s criminal record
expunged or sealed was extremely limited.<span style="mso-spacerun: yes;">
</span>Summary offenses, charges that resulted in a non-conviction and few
juvenile crimes were the only charges that could be expunged. A Governor’s
pardon, a seldom used remedy, was the only other possibility for clearing a criminal
conviction.</div>
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<div style="margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="mso-spacerun: yes;"> </span>A criminal record can have lifelong
ramifications, adversely affecting employment, housing, and/or education.<span style="mso-spacerun: yes;"> </span>The bill was introduced by Senator Stewart
Greenleaf, who stated “a low-level misdemeanor in one’s past is often a barrier
when seeking employment, long after they have completed their sentence”. The
new law will give certain non-violent criminal offenders the opportunity to hit
the reset button and start with a clean slate.</div>
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<span style="mso-tab-count: 1;"> </span>SB 166 will
allow individuals who have served their punishment and who have remained free
of arrest or prosecution for seven to ten years to petition the Court of Common
Pleas to have their prior record sealed.<span style="mso-spacerun: yes;">
</span>If the petition is granted by the Court, the prior record will be
removed from public view.<span style="mso-spacerun: yes;"> </span></div>
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<div style="margin: 0in 0in 0pt;">
<span style="mso-tab-count: 1;"> </span>Certain second-degree,
third-degree and ungraded misdemeanors will be eligible to be sealed. Simple
Assault will be ineligible to be sealed, unless it is ungraded or a misdemeanor
of the third-degree. Sealed records will be available for law enforcement
purposes but will not be available for the public and individuals will not need
to disclose the sealed records for employment purposes.</div>
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<span style="mso-tab-count: 1;"> </span>Should you
have any questions about this new, very important law, please contact Davis
& Davis.<span style="mso-spacerun: yes;"> </span>We will do all we can to
help you realize the benefits of Senate Bill 166. </div>
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---- Jeremy J. Davis, EsquireUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-53230545374938556822016-02-05T09:06:00.002-05:002016-02-05T09:06:23.722-05:00Ralph Nader and the American Museum of Tort LawRalph Nader, the Harvard-educated attorney and consumer advocate, has been known for numerous achievements, but perhaps his most enduring legacy will be as the Nation’s first and true consumer advocate. In 1959 his article, quite critical of the automobile industry, “The Safe Car You Can’t Buy” was published in the Nation. However, the book that brought him national acclaim and established him as America’s true consumer advocate was “Unsafe At Any Speed” and particularly the first chapter of that book, “The Sporty Corvair - The One Car Accident.” It was the Corvair that was involved in numerous accidents and 100 lawsuits against General Motors. Most experts now agree it was truly “unsafe at any speed.” <br />
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Nader’s advocacy on behalf of American consumers has been the cornerstone of his career. Now with the establishment of the American Museum of Tort Law located in Winsted, Connecticut, his hometown, quantifies the benefits to our society of Tort Law and specifically highlights numerous cases benefitting consumers. A Tort is a legal wrong committed upon the person or property independent of contract. It may be either (1) a direct invasion of some legal right of the individual; (2) the infarction of some public duty by which special damage accrues to the individual; (3) the violation of some private obligation by which like damage accrues to the individual - Black’s Law Dictionary.<br />
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The vision of the museum is set out by Professor Joseph A. Page, who writes “Tort Law is a system of law that governs claims by victims for harm caused by wrong doing. It is a wide tent that covers automobile collisions, airplane crashes, slips and falls in supermarkets, mishaps caused by defective products, faulty treatment by healthcare providers, toxic chemical spills, loud noise made by inconsiderate neighbors, police brutality, dog bites, gruesome practical jokes, sexual harassment, false statements, ruining a persons reputation, violations of an individuals right to be left alone, theft of trade secrets, fraudulent business practices perpetrated by one competitor against another and a host of other situations that result in the infliction of bodily, emotional or poorly financial harm.” According to Professor Page, Tort Law is as ancient as society itself, since every organized community has had to develop some kind of institutional mechanism to handle disputes arising from injuries that its members inevitably inflict upon one another. “Tort Law provides a vehicle for public vindication that conserve both plaintiffs and defendants. An injured victim or the family of the deceased victim can never be made whole by an award of money damages, but a favorable jury verdict may distow a powerful psychological benefit by assigning blame to a responsible party. Similarly, a jury verdict in a defendant’s favor can amount to a meaningful public exoneration.”<br />
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The American Museum of Tort Law provides an historical backdrop and record of Tort Law development specifically in the United States. It is the first museum of its kind in North America. The museum itself serves to educate the public as to the true history of Tort Law and the enormous benefit Tort Law and the trial by jury play in a free society. The museum debunks the fiction of the “McDonald’s Case” which became the basis for a sound-bite for talk show hosts, insurance company spokesman, and the “Corpocracy” that exists in this Country. It explains why our founding fathers thought that the right to trial by jury was important enough to include it in the Bill of Rights. It chronicles Ralph Nader’s book and how that book “Unsafe At Any Speed” actually revolutionized automobile safety. <br />
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The consumer advocate, Ralph Nader, knew the American Museum of Tort Law would honor the legacy of the “Weapon of the Weak.” Over the past 25 years, the American public has been bombarded with misinformation by certain politicians, insurance industry advertisers and multinational corporations. As a result of the ongoing misinformation and extremely well funded campaign, most Americans know little, if anything, about Tort Law, the benefits of Tort Law in a free society and the absolute right to a trial by jury so dear to our founding fathers. <br />
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The American Museum of Tort Law provides an excellent resource for an objective review of Tort Law in America, and its true benefits. The museum debunks the unfounded and unsubstantiated claims which have become the basis for the “Tort Reformers” campaign.<br />
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If you would like to learn more about the American Museum of Tort Law and Ralph Nader, please visit the following website: <a href="https://www.tortmuseum.org/">https://www.tortmuseum.org/</a><br />
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--- James T. DavisUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-7873540857132289962014-10-08T15:53:00.001-04:002014-10-08T15:53:28.173-04:00Recalls – Airbags to Ignition Switches We live in a time when motor vehicle recalls occur almost daily. Over the past five years, 10 million vehicles have been recalled due to defective airbags alone. This staggering number represents only a small percentage of the overall number of vehicles recalled for various types of problems. <br />
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Perhaps the most publicized recall involves the “defective ignition switches” on General Motors vehicles. It is estimated that over 3,350,000 vehicles were recalled as a result of this defect. <br />
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Of course, some recalls do not deal directly with defects that threaten consumer safety; however, the airbag and ignition switch defects caused many fatalities and serious injuries.<br />
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What has brought the automobile industry to this state? Perhaps noone can specifically answer that question or provide a full list of reasons. The problem may lie with faulty design, sloppy management, employee negligence, poor employee supervision and inadequate quality control. Most likely, improvement is necessary in all of these areas. Until such time as that, all motorists will remain at risk. <br />
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Recalls may be an effective tool to correct some problems, but it is prevention and proper product production which must be the goal of all motor vehicle manufacturing. The consuming public must demand defect free motor vehicles. The automobile manufacturers must be held accountable when they produce and sell a defective product to an unwitting consumer. This is particularly so when the dangerously defective product is likely to cause death or serious bodily injury to the consumer. Legislation, holding the automobile industry accountable to the families of the victims and the injured themselves, is the only way to insure that the automobile industry will not continue to manufacture dangerously defective vehicles.<br />
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--- James T. Davis, EsquireUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-58074944569938936212014-04-25T14:08:00.000-04:002014-04-25T14:08:32.628-04:00Identity Theft: What to do if you become a victim? <br />
Anyone can become a victim of identity theft in today's day and age, no one is completely protected. You may say to yourself, "that won't happen to me, I'm too careful". What if it does happen to you? What steps should you take? <br />
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If you become an unfortunate victim of Identity Theft, you must act quickly to limit the damage and stop the identity thief immediately. In Pennsylvania, the crime of identity theft of another person occurs someone possesses or uses, through any means, identifying information of another person without the consent of that other person to further any unlawful purpose. Under the law, a police report taken by a local, county, or state law enforcement agency by a person stating that their identifying information had been used without their consent shall be considered evidence that the information was used or possessed without the person's consent.<br />
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The following steps should be taken if you become a victim: <br />
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• Notify the three major credit bureaus and ask them to put a fraud alert on your credit reports. <br />
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• Contact the fraud department of all of your creditors, including any institutions that issue you bank cards, debit cards, credit cards and/or checking/saving accounts. You should mail a copy of a completed Federal Trade Commission's Identity Theft affidavit to all of your creditors, a copy of which can be obtained online, or complete the creditors’ fraud dispute form. <br />
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• If you think your bank account has been tampered with, you should immediately contact your financial institution so they can freeze your account(s). <br />
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• Contact your local police department so an investigation into the crime can begin immediately.<br />
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• Complaints can also be made to the Office of the Attorney General, The Federal Trade Commission, Department of Motor Vehicles, US Postal Inspection Service, or the Social Security Administration, depending on the type of identity theft involved.<br />
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If you act as soon as you are notified or become aware that you have been a victim of identity theft by notifying the police, creditors, credit bureaus, and/or any of the other institutions discussed above, hopefully the theft is stopped and the damage will be minimized. Once you have made the proper report, make sure to keep track of your credit and accounts to insure that the identity theft has ended for good.<br />
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--- Jeremy J. Davis, EsquireUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-76578616909989994492013-01-16T14:30:00.000-05:002013-01-16T14:30:55.277-05:00THE RIGHT TO TRIAL BY JURY DENIED <br />
Over the past two decades, special interest groups have waged a campaign designed to limit the average American’s access to the courts and particularly our right to a trial by jury in civil cases. This assault on our Civil Justice System was purportedly in response to claims of frivolous lawsuits, runaway jury verdicts, and jackpot justice. Our nation has long held dear its Civil Justice System as the finest in the world, providing those persons wronged by the act of an individual or the largest of corporations the opportunity to receive justice in the Civil Justice System. A jury’s award compensating an individual who has been wronged not only provides justice for that individual, but also serves as a means to prevent others from committing similar wrongful acts. Lawsuits filed against Ford Motor Company as a result of the “Exploding Pinto” cases forced Ford to redesign that vehicle, thereby saving lives. Lawsuits brought by injured persons are responsible for numerous safety features, now common in automobiles, highway design, and many consumer products. Such things as seatbelts, guardrails, and the safety valves on pressure cookers all came about when injured persons sought justice though our Civil Justice System.<br />
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Nearly every American would find it abhorrent if a person charged with a serious crime did not have the right to a trial by a jury of his or her peers. Today in Pennsylvania and in other states, legislators are continually limiting our right to trial by jury particularly in the Civil Justice System. The reasons given by many lawmakers who support restrictions on Americans’ access to Civil Justice are simply without foundation, in truth or fact. Personal injury lawsuits represent only 1.3% of all civil cases filed in the United States, yet many legislators would have you believe that personal injury lawsuits are clogging our legal system. In fact, according to the Rand Institute for Civil Justice, a well respected think tank, there has been a 52% decline in personal injury cases filed from 1992 to 2005, only 10% of persons injured by the negligent and wrongful act of another seek compensation and only 2% actually file lawsuits. Tort cases generally reflect only 6% of all cases filed in the United States Civil Courts. The frivolous lawsuit claim is simply a myth and does not exist.<br />
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The special interest publicity campaign designed to limit all Americans access to Civil Justice has been based on characterizations and exaggerations. The idea simply stated is that Corporate America can get a better deal if cases brought against large corporations are heard by Arbitrators and not common citizens that serve on juries. Ironically, in America today, a jury of your peers can decide whether you live or die, but in many states cannot decide whether you have a right to a refund when your health club suddenly shuts down, or you have been fired from your job without just cause. <br />
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Our Civil Justice System, including our right to a trial by jury, is one of the cornerstones of our free society. This system, existing for more than 200 years, has helped to transform America into a much safer and consumer friendly society. The agenda of special interest groups to limit our access is entirely self-serving, based upon fiction and not fact and, if successful, will have a far reaching effect on society. Everyone should be outraged when a person elected to the legislature thinks he or she is in a better position to settle our disputes or arrange for a professional arbitrator to do so and not those people who serve on juries, the same people who elected that legislator. <br />
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James T. Davis, Attorney at Law <br />
107 East Main Street<br />
Uniontown, PA 15401<br />
jdavis@davisanddavislaw.comUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-7941131569104858422012-09-19T10:43:00.001-04:002012-09-19T10:43:47.045-04:00Convention Lives Up to Expectations I must admit I anxiously, and somewhat impatiently, anticipated the Democratic National Convention. In my experience when I approach an upcoming event with great expectations, rarely does the event meet those great expectations. The Democratic National Convention at which I was privileged to serve as a Delegate was all that I expected and more. <br />
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The city of Charlotte seemed well prepared, overflowing with security and uniformed police officers patrolling and providing traffic control. The people throughout the city could not have been more friendly and welcoming. On my long walks from the bus or train to the Charlotte Convention Center where the meetings were held, or to the Time Warner Cable Arena for the Convention, I was repeatedly greeted with “Hello’s” and “Welcome to Charlotte.” Even the demonstrators were polite as I walked by each morning on my walks to and from bus/train transportation.<br />
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The Pennsylvania Delegation included me and fellow Fayette Countians, Lauren Mahoney, Pat Jones, and Al Ambrosini. Pennsylvania was one of the largest Delegations at the Convention and despite our size and the challenges associated with such a large body, it did seem to be well organized. Credit must be given to Fadia Helma, who serves as Assistant Executive Director of the Pennsylvania Democratic Party, and who had the responsibility to keep our delegation organized and to respond to all of the problems facing the Pennsylvania Delegates. Her efforts made our job much easier.<br />
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Each morning Pennsylvania Delegates would meet for breakfast and to hear speeches and comments from various officials, including US Senator Bob Casey, and former Governor Ed Rendell. On Thursday morning, we were visited by AFL-CIO President, Richard Trumka, a former resident of Nemacolin, Greene County. He provided an inspiring commentary concerning the problems that face the nation and what might be done to improve the plight of all Americans, with specific reference to the middle class. Richard, an outstanding orator, gave a fact-based commentary which was well received by the Delegates. The morning breakfasts were filled with many repetitive comments, but there was much to learn as the Delegates continually received information concerning the platform and the facts and statistics which would support the important platform positions of the Democratic Party.<br />
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Following breakfast, I attended several caucuses and meetings of various groups. All of the caucuses were interesting, each discussing issues relating to that particular group. When one reviews the line-up of caucuses, it’s a wonder that all the Democrats with many varying views can come together and support one Candidate for the nations highest office and a platform which obviously must be negotiated and is the subject of compromise. I suspect that the members of Congress can learn something from the Delegates attending the Democratic Convention who must negotiate and compromise on various issues so that a platform can be developed and finalized.<br />
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I was interested in hearing from speakers that would provide facts and statistics in support of the Democratic platform. I wanted to know what the President would do, assuming he was reelected, to move our nation forward. Many speakers touched upon the typical patriotic themes of love of family, neighbor and nation. I believe that both political parties can agree on these issues and that the Candidates from both parties truly love their families, neighbors and, of course, our nation. But the true question is, what can be done to make our nation better?<br />
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There were many outstanding speeches, video presentations, and vocalists. I was impressed on Tuesday evening with actor/producer Kal Pen and Minnesota Governor Deval Patrick. But First Lady Michelle Obama seemed to be most at ease in front of the crowd and cameras and delivered an outstanding address.<br />
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Wednesday evening was perhaps the most anticipated by many Delegates as the iconic and legendary Bill Clinton was set to address the convention. Clinton is arguably the best orator of our time. Former President Clinton gave a lengthy presentation that was fact-based, offering sound arguments to refute the positions taken by the opposition. His speech offered a specific history as to what has occurred in recent years in Washington and what must be done to move the nation forward. Most of the remarks given by the other political leaders did not contain a great deal of content, but former President Clinton’s remarks overflowed with content. His presentation was truly remarkable and for those readers who have not had an opportunity to see and listen to him, I would certainly recommend that they find his remarks online and treat themselves to his address. I cannot think of anyone better to nominate an incumbent President than former President Bill Clinton.<br />
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On Thursday, due to threatening weather, the convention which was to be held at the Bank of America Stadium was moved “back” to the Time Warner Arena. As expected, Vice President Joe Biden and President Barrack Obama addressed the delegates. Vice President Biden reminded me of one of the “fellas” I might have coffee with, pontificating on a number of subjects. His was not a speech, but rather a conversation and in his way I am sure quite effective. President Obama is an orator and I would describe his delivery as a mixture of trial lawyer and preacher; some facts, some fire and brimstone, and a very smooth presentation. I expect it must have been difficult for him to speak after such a dynamic presentation by former President Clinton. I suspect it is unfair to compare his remarks with those of former president Clinton’s. In any event, President Obama provided a number of facts and statistics outlining his presidency to date, and his plan for the future.<br />
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In conclusion, it is for the American people to decide in this great country of ours who will be our next president. I feel blessed to live in a nation where every four years power may be transferred in a peaceful and honorable manner. Our system, which is not perfect, is the best known to mankind and as I sat listening to all of the speeches, good and bad, I was humbled and proud to live in this great nation and privileged to play a small part in the political process. I hope that all of our leaders at all levels can find wisdom in the words of former President John F. Kennedy “Let us not seek the Republican answer or the Democratic answer, but the right answer. Let us not seek to fix the blame for the past. Let us accept our own responsibility for the future.” <br />
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--- James T. Davis, EsquireUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-75800796385717824842012-08-31T12:05:00.000-04:002012-08-31T12:05:30.641-04:002012 Democratic National ConventionIn 1960 I sat glued to the television in our family’s apartment as Democrats from around the nation nominated John F. Kennedy. I was mesmerized by the convention process and dreamed that someday I would be "involved" in a political convention. My interest in the political process and in politics continued to grow in the months that followed as J.F.K. defeated Richard Nixon, becoming the first Catholic President.<br />
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Any thing was possible in this wonderful Nation of ours. Anyone could be successful! Anyone could be President! Dreams do come true, and my boy hood dreams of attending a National Convention are about to be realized many decades later. My father always reminded my brother and me how important it is for all American to be involved in the political process. We both have tried to follow his advice, I am certain he would be quite proud and perhaps a little envious of me and of my privilege to serve as a Delegate to the Convention.<br />
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This Democratic Convention isn't filled with the excitement of 1960 as modern conventions seldom are but the process of electing our Commander and Chief is just as important and exciting .<br />
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The times are different as we live in an era of gridlock and mean spirited discourse. The Nation cries for leaders that can compromise and find the common ground and not merely complain about the past without any plan for the future. As a delegate, I intend to ask the difficult questions and support those that seek compromise and consensus. The years of stagnation must end NOW. If our leaders, at any level of government, think that name calling and finger pointing is leadership, they are misguided and have misjudged the voters. Every American deserves better from our elected officials and should demand better.<br />
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We should vigorously remind all of our elected officials of the wisdom of John F. Kennedy, who said “Let us not seek the Republican answer or the Democratic answer, but the right answer. Let us not seek to fix the blame for the past. Let us accept our own responsibility for the future.”<br />
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--- James T. Davis, EsquireUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-39388800427052122882012-07-06T13:24:00.000-04:002012-07-06T13:24:07.257-04:00Judge Ralph Warman: A man of honorOn July 2, 2012, Fayette County Common Pleas Judge Ralph C Warman officially retired. He was greeted by family, friends, and colleagues with a surprise luncheon in the Courthouse Gray Room. As he entered the room to resounding applause, I could not help but think back to the very first day I met him. Both of us were young Assistant District Attorney’s eager to become successful prosecutors and trial lawyers. From the moment we met, he impressed me with his ingratiating smile and warm gestures. I soon came to realize that he was something special. In those years as assistant District Attorney no one worked any harder or provided more support to the staff than Ralph Warman. If you were in the middle of a trial and needed some quick research, the next thing you knew he was handing you a case on point. If you had to interview a witness at 2:00 A.M. during the middle of a homicide trial, he would go along with you. He rose through the ranks of the district attorneys’ office under the direction of then District Attorney, and now President Judge Gerald R Solomon, and was eventually elected District Attorney. Prosecutors and defense attorneys alike would all agree he did an outstanding job as Fayette County’s District Attorney.<br />
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His ascension to the bench seemed to be part of a natural progression and he embraced his role as a Fayette County Judge with the same energy, devotion, and discipline that enabled him to be an outstanding prosecutor.<br />
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Ralph, the son of Ruth and Myron Warman, is a member of a proud and distinguished Fayette County family, a family known to place service over self. Ralph continued that family tradition of public service in his years as Fayette County District Attorney and Judge. <br />
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There are many words one might use to describe him, such as intelligent, articulate, diligent, energetic, fair, and honest, but the word I would use is honorable. Judge Warman is and has always been, an honorable man. At the time when so many public officials lack honor and as a result are held in low esteem by the public, Judge Warman has always been the most honorable person I have ever known. We can only hope that his successor is possessed with the same characteristics that made Judge Warman so successful. We can only hope that his successor will be honorable. Judge Warman’s legacy, a legacy of honor, will be difficult, if not impossible, to replicate.<br />
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----- James T. Davis, Esquire<br />
jdavis@davisanddavislaw.comUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-82869089859442300382012-04-04T09:34:00.001-04:002012-04-04T09:34:31.284-04:00Fair Share is Unfair, Protect YourselfThe legal concept of Joint and Several Liability was designed to protect victims and require those responsible for injuries to compensate those victims. The concept simply required that the victim be fully compensated for the damages sustained. When there were multiple at-fault parties, the victim could collect full damages from any one party and that party could seek reimbursement from the other at-fault parties. This concept, which I have described in its most elementary form, was developed by legal scholars throughout the United States and the Commonwealth of Pennsylvania over the past two hundred years. Nearly every legal scholar today firmly believes that it has served the people of the Commonwealth of Pennsylvania quite well.<br /><br /> Despite the opinions of nearly every legal scholar, the Pennsylvania Legislature and Senate decided, most likely under pressure from big insurance, to eradicate Joint and Several Liability. Governor Corbett, as one of his first acts, signed Senate Bill 1131 (Act No. 17) into law on June 28, 2011, dramatically changing Pennsylvania law with the stroke of a pen. What is the future for those injured in Pennsylvania when there are multiple at-fault parties? Some will face financial ruin. In many instances, the damage expenses, which would have been recovered from the at-fault parties, will now be passed on to all Pennsylvanians, as victims with unpaid medical bills will be forced to seek payment through the Department of Public Welfare. Therefore the expenses, no matter how great, will be passed on to all of the taxpayers. The result is the victim is not fully compensated, (possibly rendered insolvent), and an at-fault party avoids the responsibility of fully compensating the victim, instead passing the responsibility on to all Pennsylvania taxpayers.<br /><br /> Consider the following scenario: <br /><br /> A young girl from a poor family has been assaulted at a daycare center by a repairman called into the center to repair an electrical problem. The daycare center failed to investigate the worker, who was a convicted child molester. The offender assaulted the child. The child’s injuries will force her to undergo medical and psychological care for the rest of her life. The child’s parents sue the daycare center and the repairman/child molester. The daycare center has liability insurance of $100,000.00, while the repairman/child molester is uninsured. The jury awards a verdict of $100,000.00 to compensate the child for the medical expenses and the pain and suffering she has undergone and will undergo in the future. The jury allocated negligence at Ten (10%) Percent against the daycare center and Ninety (90%) Percent against the repairman/child molester. Under the “old Pennsylvania law,” the insurance company for the daycare center would be required to pay the verdict and seek contribution from the repairman/child molester. Under the current law, Act No. 17, the child would collect $10,000.00 from the daycare’s insurance company and the remainder of the verdict would remain uncollected as the repairman/child molester has no insurance and it is unlikely he would have any assets with which to satisfy the verdict. The cost for this child’s medical expenses, past, present and future, will most likely fall upon the taxpayers of Pennsylvania.<br /><br /> In the scenario outlined above, there is very little anyone can do to protect themselves from the inequities of Act No. 17 which has been inappropriately labeled by its supporters as “Fair Share Act.” However, in the area of automobiles and automobile insurance, I would urge everyone to carefully review their automobile insurance policy and, to the extent that they can afford it, increase their liability coverage and purchase underinsured and uninsured motorist coverage in an equal amount. I would also encourage everyone to stack their underinsured and uninsured motorist coverage, which means that the amount of coverage which they actually have would be multiplied by the number of vehicles that they own or, in many situations, are owned in their household. <br /><br /> I would also suggest that all consumers speak with their insurance representatives about the possibility of purchasing an umbrella insurance policy which would provide coverage and include in that policy underinsured and uninsured motorist coverage.<br /><br /> In a society where legislation is driven not by legal scholars by uninformed and misinformed legislators, an individual must avail himself or herself of all available protection.<br /><br />-- James T. Davis, EsquireUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-43149042862640898942011-03-24T13:46:00.009-04:002011-03-24T13:55:52.736-04:00Westboro Baptist and Civil LiabilityOn March 2, 2011, the United States Supreme Court published its decision in Snyder vs. Phelps. The case itself has been commonly referred to as the Westboro Case and has been championed by some as a landmark decision protecting the First Amendment Rights of all Americans. What’s been lost in the media frenzy surrounding the decision are the facts and circumstances which caused Albert Snyder to file suite against Fred W. Phelps, Sr., Phelps’relatives and the church he founded, Westboro Baptist.<br /><br />Lance Corporal Matthew Snyder died in Iraq in 2006. His father, Albert, selected the catholic church in Snyder’s hometown of Westminster, Maryland as the site for his son’s funeral. Fred Phelps and several of his relatives came to Westminster seeing an opportunity to “protest”what they believe to be seriously wrong with America.This was nothing new for Phelps assimilar protests had been conducted at military funerals throughout the United States. Typically,the picketers would display such signs as “Thank God for Dead Soldiers,” “America is Doomed,”“Priest Rape Boys,” “You’re Going to Hell.” Following the funeral, members of the Westboro Church allegedly posted online the following “epic,” “God blessed you Mr. and Mrs. Snyder,with a resource and his name was Matthew. He was an arrow in your quiver: and thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD - - PERIOD! YOU DID just the opposite - - you raised him for the devil.”<br /><br />Albert Snyder brought suit against Phelps, his relatives and Westboro alleging, among other “torts”, Intentional Infliction of Emotional Distress. The jury awarded Snyder $2.9 million dollars in compensatory damages and $8 million dollars in punitive damages. Subsequently, the punitive damage award was reduced by the District Court to $2.1 million dollars. Phelps appealed to the Fourth Circuit Court of Appeals which reversed the jury’s decision. On March 2, 2011, the Supreme Court, affirmed the decision of the Fourth Circuit. The Supreme Court decision was written by Chief Justice John Roberts, considered to be one of the finest jurist of our time. Justice Roberts concluded that “because this nation has chosen to protect even hurtful speech on public issues to insure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case.” Certainly, the First Amendment must be protected but that protection should not extended in such a degree that a person who intentionally inflicts emotional distress upon another will not be held accountable and responsible through our civil justice system. The injured party must have the absolute right to seek compensation through our civil justice system. Anyone who intentionally, negligently or recklessly causes injury must be held accountable in our civil justice system, otherwise we would be relegated to barbaric reactions to address grievances. The jury held Fred Phelps and Westboro accountable and the First Amendment should not relieve them of their accountability.<br /><br />Justice Samuel Alito, in his well reasoned dissenting opinion wrote, “our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case”. Judge Alito noted that Albert Snyder is not a public figure, the First Amendment protection should not shield a person from responsibility when that person inflicts “severe emotional injury on private persons at times of intense emotional sensitivity by launching such a vicious verbal attack that made no contribution to public debate.” “ To protect against such injury, most jurisdictions permit recovery in tort for the intentional infliction of emotional distress”. This is what occurred in the original jury trial.<br /><br />Under the guise of First Amendment protection, what occurred is an assault on our civil justice system. The right to have one’s claims addressed by a jury in a proper civil proceeding is a paramount right in our free society. To shield one from responsibility and prohibit accountability for such outrageous conduct strikes at the heart of our civil justice system. Justice Alito had it right, that if the Plaintiff (Snyder) establishes that Defendant’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, utterly intolerable in a civilized community,” then the Defendants (Phelps and Westboro) must be responsible.<br /><br />Submitted by:<br />James T. Davis, Esquire<br />Davis & DavisUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-5686806951144545162011-02-01T10:53:00.005-05:002011-02-01T11:06:12.809-05:00Minimum Insurance CoverageIn 1974, the average home cost $34,900, the average rent was $185, gasoline was .55¢ per gallon and the average new car cost $3,750. This was the year Richard Nixon resigned the presidency in the midst of the Watergate Scandal and was later pardoned by his successor, Gerald Ford. A 55 mile per hour speed limit was imposed throughout the country to preserve gas and the Sears Tower in Chicago became the world’s tallest building. This was also the year that legislation was passed in Pennsylvania to establish minimum motor vehicle insurance limits of $15,000 for an injured person and $5,000 for property damage. In other words, if you suffer an injury as a result of the negligence of a driver carrying the legal minimum insurance coverage, the most that you could recover from the insurance carrier is $15,000 for your injuries and $5,000 for damage to your car. Thirty seven years have passed and, as we enter 2011, the average cost of a home is $213,000, the average price of a car is $28,400, the average rent is $545, a gallon of gasoline is $3.15, yet Pennsylvania has never raised the minimum insurance coverage! We need to catch up with modern times and the rest of the nation.<br /><br />The problem is obvious. The $5,000 property damage minimum may cover the damage in a mere fender bender but the cost to repair or replace a new vehicle will almost always exceed that amount. As for medical and related expenses incurred by a person injured in a motor vehicle collision, the sum of $15,000 cannot begin to compensate a seriously injured person who incurs always rising medical expenses, wage loss and other similar losses.<br /><br />It is obvious that when a person sustains a catastrophic injury and the responsible party has the legal minimum coverage, the injured person will not be fairly compensated for his or her loses. In many cases, it will be the taxpayers that ultimately “foot the bill” for the required medical care through Medicare or Medicaid. In order to alleviate these problems, Pennsylvania Senate Bill No. 1460 has been introduced. This Bill would raise the minimum insurance limits from $15,000 to $30,000 for one person and from $30,000 to $60,000 for multiple persons injured in the same automobile collision. It will also raise the property damage limit from $5,000 to $10,000. These are modest increases, but even they are long overdue.<br /><br />Unfortunately, like so many pieces of legislation in Pennsylvania, it remains “caught in Committee”. I am not certain what “caught in Committee” means, but it is obvious that once legislation gets “caught” it rarely, if ever, gets “released”.<br /><br />With one party now controlling the House of Representatives, Senate and Executive (Governor), the bipartisan bickering is no longer an excuse for continued legislative inaction. The Pennsylvania legislative process is the most expensive in the nation in cost to the public. Despite this, there always seems to be an impasse as legislation remains “caught in Committee” and is never voted on. Could it be the Legislators do not want to be faced with the responsibility of voting? Could it be it is about one party winning and one party losing and the interest of the public gets lost in the contest? Could it be that “caught in Committee” is merely an excuse for inaction?<br /><br />The main duty of elected Legislators is to serve the public and not to serve a particular political party by engaging in political gamesmanship. Although it is already long overdue, the time has come for the Legislators to pass Senate Bill No. 1460 which will unquestionably benefit all consumers. If the Legislators are unwilling to take this action, they should explain why the interest of the insurance companies are more important to them than the protection of their constituents.<br /><br />James T. Davis, Esquire<br />jdavis@davisanddavislaw.comUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-92087951646429471132010-07-21T08:40:00.004-04:002010-07-21T08:43:15.069-04:00House Bill No. 2246Imagine that you have been selected for Jury Duty and you are called upon to decide a personal injury case. The plaintiff, a young woman, was severely injured when a car driven by an intoxicated young man ignored a steady red light and crashed into her vehicle. The young plaintiff is seeking money damages for the injuries she claims were caused by the intoxicated defendant. If you reside in our Commonwealth, you will be asked to make a decision on the amount of money damages, if any, that should be awarded to the young victim. The intoxicated driver, although this will not be revealed to you, will be represented by an attorney hired through his insurance company and any award against him will, in nearly all instances, be paid by his insurance company. You, as a juror, will hear the evidence presented by "both sides" and at the conclusion of the trial will be asked to decide the case by awarding money damages to the plaintiff. At no time will anyone, plaintiff’s lawyer, defendant’s lawyer or judge be permitted to speak to you about the amount of money damages. You will be asked to determine the amount of money damages in the abstract and may, as many suggest, be relegated to a blind guess. Although you will be asked to make such a decision, no witness will have testified as to the value or lack of value in the plaintiff’s claims, including her claims for pain and suffering.<br /><br />In cases involving automobile collisions, thirty-seven states and the District of Columbia permit the attorneys to argue and suggest monetary damages. Unfortunately, Pennsylvania remains in the minority.<br /><br />The Senate of Pennsylvania has the opportunity to remedy this problem. House Bill No. 2246 permits argument on the amount of damages in motor vehicle crash cases. This legislation would bring Pennsylvania in line with the overwhelming majority of states and would certainly help to prevent unfair, unreasonable and "blind guess" verdicts. The legislation does not in any way alter Pennsylvania’s rules of evidence or any other legislation applicable to the trial of a motor vehicle injury case. Most observers, including attorneys who represent the plaintiffs as well as the defendants through the insurance carriers, believe that House Bill No. 2246 would right many wrongs and result in fairer verdicts thereby benefitting both parties involved in the litigation. Most defense lawyers believe that House Bill No. 2246 will help to prevent excessive verdicts, or what many call runaway verdicts, while plaintiffs attorneys believe that the legislation will also prevent the inadequate or unfair verdict when evidence may warrant a different result.<br /><br />Unfortunately, we in Pennsylvania know all too well the sometimes cumbersome nature of the legislative process. Perhaps House Bill No. 2246 is different. The Bill passed the Transportation Committee on an 8 to 2, largely bipartisan, vote. It also passed the House with relative ease receiving support from both sides of the aisle. Perhaps the Pennsylvania Senate will follow suit. In September the Senate will be asked to vote on this legislation. Many if not all legal scholars support the passage of this legislation. Should the Senate act favorably, most observers believe that Governor Rendell will promptly sign House Bill No. 2246 and help bring clarity and guidance in the resolution of motor vehicle injury claims.<br /><br /><br />Submitted by:<br />James T. Davis, Esquire<br />jdavis@davisanddavislaw.comUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-30926209023227360152010-02-22T13:27:00.003-05:002010-02-22T13:29:02.838-05:00Civil Liability and the Drunk DriverDriving while under the influence of alcohol or "drunk driving" is strictly prohibited by the criminal statutes of the Commonwealth of Pennsylvania. A person convicted of "drunk driving" may be sentenced to prison for up to five (5) years. Other penalties, including operator license suspension, out patient and in patient treatment, and the requirement for a motor vehicle interlock device may also be imposed depending on the number of prior convictions, the amount of alcohol in the blood, whether there was an automobile collision and whether someone was injured or killed. Much has been written about the criminal penalties for drunk driving and it seems that the publicity and discussion stops there.<br /><br />What of the civil liability that might be imposed on a drunk driver who, while under the influence, causes a collision resulting in injury or death to an innocent person? What of the civil liability for the tavern owner when an employee has served alcohol to a visibly intoxicated person or to a minor who is unlawfully obtaining alcohol at the establishment? What of the civil liability for the individual, commonly known as the social host, who provides alcohol to a visibly intoxicated guest or a minor?<br /><br />The drunk driver who causes injury or death is subject to civil liability for the pain, suffering, inconvenience, medical expenses and wage loss which the negligent act has caused and, in addition, may be subject to punitive damages, which are damages designed to punish one’s outrageous conduct. Although the drunk driver’s automobile insurance carrier may provide protection, that protection may be insufficient to compensate the injured party. However, the insurance contract will not protect against punitive damages. In addition, a victim of a motor vehicle collision with a drunk driver who has elected limited tort which, in this writer’s opinion is a serious mistake, will be treated as if full tort had been elected.<br /><br />Although Pennsylvania courts have long recognized that a liquor licensee (tavern owner) may be liable for injuries or death cause by an intoxicated driver who was served alcoholic beverages while visibly intoxicated, the courts have yet to recognize social host liability for a similar event. In other words, the homeowner who serves alcohol to a visibly intoxicated person will not be held liable, at least at this point in time, for the injuries caused by the intoxicated person. Pennsylvania courts have recognized social host liability when an adult social host provides alcoholic beverages to a minor, particularly if that minor is visibly intoxicated. The courts have yet to extend this social host liability when the social host is a minor who has provided alcohol to another minor.<br /><br />Whether the legislature will, in an effort to bring greater restraint and responsibility to the social host, adopt legislation which will impose additional liability on the social host remains to be seen. However, it is likely that these issues will be revisited by Pennsylvania’s Appellate Courts and, as in other states, the Appellate Courts may extend the social host liability to the intoxicated guest as well as the minor guest.<br /><br />The message is clear to the driver, do not drive drunk for you not only risk prison but also complete financial disaster; to the social host, do not provide alcohol to minors or to an intoxicated person; and, of course, to the tavern owner, do not permit a minor to obtain alcohol in your establishment and never serve the intoxicated patron. A further word of advice to the tavern owner, purchase liquor liability insurance as it may be impractical to constantly police the patrons being served at your establishment.<br /><br /><br /><br /><strong><em>Submitted by:</em></strong><br /><br /><strong><em>James T. Davis, Esquire</em></strong>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-16384418152063425932009-09-17T15:34:00.001-04:002009-09-17T15:42:24.462-04:00Land BanksOne 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, <strong>American Rust</strong>, 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.<br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br /><em>Submitted by:</em><br /><em></em><br /><em>James T. Davis, Esquire</em>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-70635385126905257842009-09-08T13:22:00.002-04:002009-09-08T13:24:25.071-04:00<strong>The Importance of Seatbelts:</strong><br /><strong></strong><br />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.<br /><br />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.<br /><br />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.<br /><br />Submitted By:<br /><br /><em>James T. Davis, Esquire</em><br /><a href="mailto:jdavis@davisanddavislaw.com"><em>jdavis@davisanddavislaw.com</em></a>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-77465711403038988822009-08-12T12:16:00.003-04:002009-08-12T12:18:38.804-04:00Motorcycles are EverywhereWe 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.<br /><br />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.<br />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.<br />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.<br /><br />Submitted By:<br /><em>James T. Davis, Esquire</em><br /><a href="mailto:jdavis@davisanddavislaw.com"><em>jdavis@davisanddavislaw.com</em></a>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-34503584696094328302009-07-28T11:50:00.003-04:002009-07-28T11:54:46.721-04:00The Differences between Criminal and Civil LawAfter 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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br />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.<br /><br /><strong>Submitted by:</strong><br /><br /><em>Samuel J. Davis, Esquire</em><br /><br /><em><a href="mailto:sdavis@davisanddavislaw.com">sdavis@davisanddavislaw.com</a></em>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-86189913810198525922009-02-06T11:31:00.000-05:002009-02-06T11:33:02.568-05:00Right-to-Know PolicyOn 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.<br /><br />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.<br /><br />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, <a href="http://openrecords.state.pa.us/">http://openrecords.state.pa.us</a>.<br /><br />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.<br /><br /><strong>Submitted by:</strong><br /><strong></strong><br /><em>James T. Davis, Esquire</em><br /><em></em><br /><em>jdavis@davisanddavislaw.com</em>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-30665137234366738122009-02-06T11:16:00.002-05:002009-02-06T11:31:12.717-05:00“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.<br /><br />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.<br />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.<br /><br />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.<br /><br />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.<br /><br /><strong>Submitted by:</strong><br /><br /><em>James T. Davis, Esquire</em><br /><br /><a href="mailto:jdavis@davisanddavislaw.com"><em>jdavis@davisanddavislaw.com</em></a>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-25327762813804111952009-01-06T15:16:00.003-05:002009-01-06T15:18:42.576-05:00Davis & 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!Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-24560745277709405432008-04-01T11:20:00.006-04:002008-04-01T11:31:18.182-04:00Conflict of InterestWe often hear the phrase "conflict of interest" . What does that phrase mean and when do conflicts of interest arise? Conflicts of interest arise when decision makers, be they school directors, councilmen, university or college trustees, or others in similar positions have personal, family, business or others interest that could effect their independent judgement and their faithful performance of duties to the institution they serve. Of course, most potential conflicts do not have such effect, they nevertheless must be addressed because even a perceived conflict of interest can be harmful to the institution. Usually, accomplished, active individuals like those who serve on such institutions inevitably are in engaged in activities and affairs of other institutions and organizations.<br />In most situations, conflicts of interest involve direct or indirect business relationships between the institution and the individual, they also arise in a variety of other circumstances. To illustrate, conflicts of interest occur when an individual or family member:<br /><ul><li>conduct business with the institution,</li><li>use institutional resources to promote his or her individual or family’s financial or other interest,</li><li>uses confidential information about the institution to promote his or her individual or family interest,</li><li>has a relationship with a competing institution,<br />gains financially from an institutional transaction,</li><li>assists an outside entity to benefit financially or otherwise from the institution in ways not available to that entity’s competitors,</li><li>lends or borrows money or property from an entity or person who conducts business with the institution,</li><li>receives gifts from an individual or entity who conducts business with the institution,</li><li>accepts gifts or perquisites (perks) from the institution not readily available to other members of the institutional community,</li><li>participates in or permits the approval of policies not in the institutions best interest,</li><li>participates in or permits the rejection of policies that are in the institutions best interest,</li><li>and promotes or participates in social or political agendas or campaigns that could have a detrimental effect on the institution.</li></ul><p><br />Conflicts of interest by decision makers or even the appearance of such conflicts of interest, must be avoided. The only way a decision maker can avoid a conflict of interest is to be familiar with what constitutes them and to promptly identify a potential conflict. Of course, the decision maker should promptly disclose personal, family, business or other circumstances that could raise conflict questions. If a conflict is in fact identified, the decision maker affected, should of course, refrain from any action by the institution that involves the conflict and in no event, should the decision maker have a right to vote on the matter or even to be present when the issue is discussed by other institutional decision makers. </p><p><strong>Submitted by:</strong> </p><p><em>Samuel J. Davis, Esquire</em></p><p><em>sdavis@davisanddavislaw.com</em></p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-5253425952642861765.post-7429358239875260002008-02-27T13:32:00.000-05:002008-02-27T17:57:12.257-05:00What is a Tort?: House Bill No. 34A careless driver has caused an automobile collision and the injured victim does not know where to turn. He reads his automobile insurance policy only to add to his confusion. He calls his attorney and the first question he asks is "What is a tort?" This scenario plays out daily throughout Pennsylvania. People are injured through no fault of their own and are forced to "figure out" what type of insurance they had purchased. Few, if any, know what the word "tort" truly means. Nearly every day that very question is asked of me. " I have been injured in an accident through no fault of my own, what can I do? What is a tort?"<br /><br />Blacks Law Dictionary defines a tort as a civil wrong for which a remedy may be obtained in the form of damages.<br /><br />In 1990, the Pennsylvania State Legislature, in its collective wisdom, amended the Motor Vehicle Financial Responsibility Law to provide two types of "tort" options. One option would be the selection of full tort while the other option would be the selection of limited tort. Although the options sound good, when purchasing automobile insurance few people have any idea of what the options mean. Only after being injured in an automobile accident and they have conferred with an attorney do they truly understand their rights as controlled by the insurance policy they may have purchased years before. Full tort means one’s full right to seek compensation for injuries that have been sustained, or in other words, a full right to sue while limited tort, the other selection, limits one’s right to recover for injuries, or in other words, a limited right to sue.<br />Over the past seventeen years, Pennsylvanians have been confused and have continually misunderstood the automobile insurance which they have purchased. The Pennsylvania Legislature has offered no guidance or explanation. At least three House Bills commonly referred to as Plain Language Bills have languished in Committee for several years and hopefully at least one of them may soon be voted upon by the full membership of the House of Representatives. The most likely scenario is that House Bill No. 34 will be the first to be acted upon unless the Legislature continues to drag its feet. This legislation, commonly known as a Plain Language Bill, would change the language of automobile policies from the hard to understand terminology "full tort and limited tort" to the much more consumer friendly terminology of "full right to sue and limited right to sue," obviously making insurance policies easier to understand and allowing Pennsylvanians to best choose the type of insurance right for them and their families. Consumer confusion helps no one and I can think of no reason why every Pennsylvania representative and senator would not support the Plain Language legislation. Please call your legislator and senator and ask them to support House Bill No. 34. Don’t wait until you have been in an accident to find out about your automobile insurance. Check your policy and make sure you have selected the type of insurance that best protects you and your loved ones.<br /><br /><strong>Submitted by:<br /></strong><em>James T. Davis, Esquire<br /><span style="font-size:85%;">jdavis@davisanddavislaw.com</span></em>Unknownnoreply@blogger.com1