Davis & Davis Law Blog

Westboro Baptist and Civil Liability

2011-03-24T13:46:00.009-04:00

On 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.

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.”

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.

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.

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.

Submitted by:
James T. Davis, Esquire
Davis & Davis

Minimum Insurance Coverage

2011-02-01T10:53:00.005-05:00

In 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.

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.

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.

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”.

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?

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.

James T. Davis, Esquire
jdavis@davisanddavislaw.com

House Bill No. 2246

2010-07-21T08:40:00.004-04:00

Imagine 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.

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.

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.

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.

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

Civil Liability and the Drunk Driver

2010-02-22T13:27:00.003-05:00

Driving 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.

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?

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.

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.

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.

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.

Submitted by:

James T. Davis, Esquire

Land Banks

2009-09-17T15:34:00.001-04:00

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

2009-09-08T13:22:00.002-04:00

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

2009-08-12T12:16:00.003-04:00

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

2009-07-28T11:50:00.003-04:00

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

2009-02-06T11:31:00.000-05:00

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”

2009-02-06T11:16:00.002-05:00

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!

2009-01-06T15:16:00.003-05:00

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!

Conflict of Interest

2008-04-01T11:20:00.006-04:00

We 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.
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:

conduct business with the institution,
use institutional resources to promote his or her individual or family’s financial or other interest,
uses confidential information about the institution to promote his or her individual or family interest,
has a relationship with a competing institution,
gains financially from an institutional transaction,
assists an outside entity to benefit financially or otherwise from the institution in ways not available to that entity’s competitors,
lends or borrows money or property from an entity or person who conducts business with the institution,
receives gifts from an individual or entity who conducts business with the institution,
accepts gifts or perquisites (perks) from the institution not readily available to other members of the institutional community,
participates in or permits the approval of policies not in the institutions best interest,
participates in or permits the rejection of policies that are in the institutions best interest,
and promotes or participates in social or political agendas or campaigns that could have a detrimental effect on the institution.

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.

Submitted by:

Samuel J. Davis, Esquire

sdavis@davisanddavislaw.com

What is a Tort?: House Bill No. 34

2008-02-27T13:32:00.000-05:00

A 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?"

Blacks Law Dictionary defines a tort as a civil wrong for which a remedy may be obtained in the form of damages.

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.
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.

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