|Posted on February 12, 2015 at 8:55 PM||comments (19)|
The Philadelphia City Council enacted an ordinance to provide paid sick leave for some Philadelphia employees. The new law is designed to provide relief to the estimated 35-40% of Philadelphia workers who currently have no paid sick time. It provides one hour of paid sick leave per 40 hours of work and applies to businesses with at least 10 employees. The law is scheduled to take effect in 90 days. The Mayor’s Task Force Recommended the following:
Reasons for Usage
Sick leave should be available to employees for their own injury, medical care, and health conditions, as well as those of family members, including children, spouses, domestic partners, parents, grandparents, grandchildren, and siblings (including foster, step, and in-law relationships). In addition, employees should be able to use sick leave as "safe days" to seek treatment, legal services, or relocation in cases of domestic violence, sexual assault, or stalking.
Accrual Rate and Maximum Accrual Amounts
Employees should earn one hour of paid sick leave per 40 hours worked and may accrue up to 40 hours per a rolling 12-month period of employment.
Wait Period for Use and Accrual
Employees should begin earning sick leave hours for any work completed upon the commencement of their employment, but may use earned leave 90 days after that. Earned leave may be used in the smaller of hourly increments or the smallest increment permitted by an employer’s payroll system.
Existing Employer Policies
Employers should not change existing policies or provide additional leave if the existing policy satisfies or exceeds the accrual requirements and can be used under the same conditions.
Collective Bargaining Agreements
Paid sick leave subject to collective bargaining agreements should be excluded from the paid sick mandate.
Government employees are excluded from the paid sick mandate.
No Pay for Unused Hours
No compensation should be provided for any earned and unused time at separation from employment.
Employers should keep records documenting hours worked, earned time accrued, and sick time taken by employees for a two-year period.
Enforcement of the ordinance should be complaint driven. Employers should cooperate with complaint investigations and be given a reasonable grace period to correct the violation before any fines are levied. It appears that the Office of Labor Standards (OLS) within the Commerce Department will be identified as the compliance and enforcement body for the paid sick leave bill.
Employers may require reasonable documentation for sick leave use. The employee should provide notice as soon as practicable and comply with the employer’s reasonable, normal notification policies and/or call-in procedures, provided that such requirements do not interfere with the purposes for which leave is needed.
Monitoring and Review of Ordinance
The City should complete a periodic review of any enacted paid sick leave ordinance to assess compliance, number of employers included, and impact on employers every two years for the first four years following enactment.
|Posted on January 19, 2015 at 7:00 PM||comments (0)|
Been Arrested or Questioned, You Have Rights-Use Them!
If you or a loved one have been arrested or questioned in relation to a crime (even if you are completely innocent of that crime): 1) obtain an attorney and 2) cease all communications with law enforcement, except to inform them of the fact that you have invoked your right to counsel. The right to remain silent and the right to an attorney are two of the basic rights available to everyone accused of a crime; they are so important that the U.S. Supreme Court has repeatedly required law enforcement to remind you of those rights (i.e. the Miranda warnings). Too many people make the mistake of trying to talk their way out of a situation or worse, believe that an attorney makes them look guilty. If the police are questioning you, you already do look guilty, but law enforcement probably doesn’t have enough to convict you yet. Don’t give them what they need.
What to do When Stopped By Law Enforcement?
Your safety is paramount. Comply with all instructions, even if you believe your rights have being violated. You can always protest the actions of law enforcement at a later date without sustaining additional charges or being harmed. The American Civil Liberty Union (“ACLU” advises the following:
• Stay calm and be polite.
• Do not interfere with or obstruct the police.
• Do not lie or give false documents.
• Prepare yourself and your family in case you are arrested.
• Remember the details of the encounter.
• File a written complaint or call your local ACLU if you feel your rights have been violated.
What to Expect, the Basic Steps
All Felony and Misdemeanor cases will follow the basic framework below. Summary offenses, juvenile offenses, and traffic offense may follow a different schedule. It is important that you retain an attorney before the preliminary hearing and cease all communications with law enforcement. Also, you lose certain rights by not raising them at certain junctures prior to the trial.
1. First Step: the Preliminary Arraignment
Once arrested, the very first interaction with the Court will be at the Preliminary Arraignment. Usually held before a Magisterial District Court Judge, the preliminary arraignment is where you will be provided with a copy of the complaint and warrant (if applicable) and informed of the type of release on bail. Bail is essentially money that you can pay to be released from jail during the criminal proceedings. At the preliminary arraignment, the District Judge will also set the date and time for the next step of the process, the preliminary hearing (approximately 10-21 days later). See Rule 540.
2. Second Step: the Preliminary Hearing
Also held before a Magisterial District Court Judge, the preliminary hearing is not a trial; rather, it is an opportunity for the accused to challenge the Commonwealth’s evidence. At the preliminary hearing, the accused also has a right to counsel, the right to cross examine witnesses, the right to inspect the physical evidence, the right to call their own witnesses, and the right to offer their own evidence. The accused even has the right to not have a preliminary hearing if they properly inform the Judge. The District Judge shall determine from the evidence presented whether there is a prima facie case that (1) an offense has been committed and (2) the defendant has committed it. A “prima facie case” essentially means the government must provide some measure of proof that the accused probably did the crime and is the person who did it; it is a lesser standard than the one used at a trial where the Commonwealth must prove guilt beyond a reasonable doubt. If the Court concludes that the Commonwealth has met its burden, then the matter will be bound over for trial at the Court of Common Pleas. See Rule 542.
3. Third Step: The Formal Arraignment
This is the first step that will actually be held in the Court of Common Pleas. Here, the Court will advise the defendant of the charges that were bound over from the Magisterial District Court and advise the accused of the date of the pretrial conference. Importantly, the completion of the formal arraignment kicks of several significant deadlines including the right to ask the Commonwealth for a copy of all evidence it has in its possession and the right to challenge the constitutionality of certain charges or actions by law enforcement (by filing an Omnibus motion). Like the preliminary hearing, the accused is capable of waiving the formal arraignment, but must properly notify the court of the intent to do so. See Rule 571.
4. Fourth Step: The Pre-Trial Conference
The pretrial conference is basically an opportunity for the parties to meet with the Court and each other prior to trial to determine if there are any outstanding issues that can be resolved before Trial. Each Court (and even each judge) handles these conferences differently. For the most part, the pretrial conference resolve discovery issues and anticipated problems with the admissibility of evidence and witnesses. If an Omnibus Motion had been filed or if ARD was approved by the Commonwealth, the Court is likely to address these matters at the Pretrial Conference. The Judge will also set forth the date of trial and any other pretrial deadlines at this conference. See Rule 570.
5. Fifth Step: Trial
Unless you have done anything to cause delay, the trial should be held within 365 days of the filing of the Complaint. Generally, you have a right to select either a jury trial or a non-jury trial (i.e. a trial before a judge only). Alternatively, you can enter a guilty plea or related no contest plea where you do not admit guilt but admit that there is enough evidence to convict you. At the trial, the Commonwealth has the burden of proving your guilt. They will present evidence and witnesses attempting to reflect your guilt; you have the opportunity to present your own witnesses and evidence demonstrating your innocence. Each party may also cross examine the others witnesses (i.e. subject them to scrutiny by questioning them). The standard of conviction is “beyond a reasonable doubt.” Essentially, if there is any doubt as to the Commonwealth’s claim that you are guilty, and that doubt is reasonable, then the Commonwealth must go beyond that doubt to convict you. In other words, if the jurors or judge have no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty. See Rule 600.
6. Sixth Step: The Sentencing Hearing
If you have been convicted of a crime, or pled guilty, the Court must impose a sentence in accordance with the expectations of the legislature (i.e. the mandatory minimum sentences). In some limited circumstances, the Judge can reject the mandatory sentence. Generally sentences involve time in jail but can also include probation, electronic home monitoring (house arrest), fines, community service, stay away from the victim, restitution to the victim, or enrollment in a drug and alcohol treatment program. The length of a sentence is also dependent upon a number of factors including any prior record. See Chapter 303.
|Posted on December 31, 2014 at 12:35 AM||comments (0)|
Pennsylvania Courts challenge the reliability (and admissibility) of certain breathalyzers in Pennsylvania DUI cases, in particular the Intoxilyzer 5000
1. The December 31, 2012 Court of Common Pleas Opinion Ruling Breathalyzer Evidence Unreliable
In December 2012, a Pennsylvania Court of Common Pleas challenged the reliability (and admissibility) of certain breathalyzers in Pennsylvania DUI cases, in particular the Intoxilyzer 5000. Relying on expert testimony, the Court in Commonwealth v. Schildt determined that breathalyzer machines are not accurate in measuring blood alcohol levels higher than .15 percent. Essentially, the machines are calibrated for a limited operational field range of .05 percent to .15 percent. Therefore, any breath test machine reading either above or below that range (.05 percent-.15 percent) cannot, as a matter of science and law, satisfy the Commonwealth's burden of proof beyond a reasonable doubt.
2.The September 5, 2013 Superior Court Decision Reversing and Remanding The CCP Opinion (But Still Allowing Preclusion of Breathalyzer Evidence)
On September 5, 2013, the Superior Court of Pennsylvania (in a non-precedential decision) reversed and remanded that decision; however, the Superior Court did not necessarily dispute the lower court's reliability findings. Instead, the Superior Court found that the lower Court's decision to quash the criminal trial was premature (and procedurally improper) at that particular stage since the lower Court erroneously held the Commonwealth to its burden of proof at trial in granting the pre-trial motion to quash the Complaint rather than the prima facie burden necessary to survive a habeas motion. The Superior Court acknowledged that the lower Court could indeed preclude the breathalyzer evidence as unreliable but that fact is irrelevant to the question of whether the evidence established a prima facie case. Essentially, the lower Court is still free to preclude the breathalyzer evidence as unreliable.
|Posted on December 19, 2014 at 2:25 AM||comments (3)|
Payday loan companies are notorious for not following the proper collection procedures. Instead they rely upon threats of arbitration, predatory lending practices, high interest rates, and harassing collection tactics. For example, they often threaten criminal action contrary to state and Federal collection practice laws. Note, there are no debtor prisons in the United States; you cannot be imprisoned for not paying a debt.
If you are being harassed by a payday loan debt collector, you should begin the process of protecting yourself by sending a certified mailing to the payday loan company asking for validation of that debt which includes a request for a copy of any contract. The letter should also ask for an accounting of all charges and payments to date on the account. Demand that they cease and desist from any further collection communications. Finally, if you dispute any portion of their debt (or their interest rates), inform them that you also dispute that debt. You can find sample debt validation/dispute letters on the internet. Keep a journal and record any and all communications efforts that come after receipt of that letter as they might be in violation of the law; which could be used to argue that they have waived their right to collect the debt. This includes phone calls, emails, missed calls, letters, etc.
A word of caution, these efforts won’t eliminate any debt obligation (it might even incur further penalties and interest) but, in theory, it should stop the debt collector from harassing you and will serve as a basis of possibly identifying future violations in collection practice laws. Note, however, payday loan companies rely upon a belief that they have immunity from collection laws due to their status as sovereign nations (i.e. many are owned by tribal nations). It is this belief that empowers them to violate these collection laws. In order to take any action against you, they would essentially need to step off the reservation or hire a locally licensed collection company or law firm to go to Court. It is those persons (i.e. the local debt collectors) who might become liable for the unfair collection practice violations.
|Posted on December 19, 2014 at 2:25 AM||comments (0)|
What is An At-Will Employee?
Most people in the Pennsylvania labor force are considered "at-will" employees, meaning that either party can break the employment relationship with nothing owed to the other party, provided there was no express contract for a definite term such as with a union collective bargaining agreement. As a form of protection to workers who are terminated, Pennsylvania (like most states) provides a scheme of unemployment compensation benefits to people who have lost a job through no fault of their own. Unemployment compensation is temporary income meant to help make ends meet while people look for a new job. If eligible for benefits, you will likely receive about half of what your full-time wage was before you became unemployed.
What is Willful Misconduct?
Unfortunately, some employers inadvertently or intentionally mischaracterize the circumstances of an employee's termination, labeling it as "Willful Misconduct." In Pennsylvania, an employee who is discharged from employment for "willful misconduct" is not eligible to receive unemployment benefits. The phrase "willful misconduct" is generally described as "an act of wanton or willful disregard of the employer's interests, the deliberate violation of rules, the disregard of standards of behavior which an employer can rightfully expect from an employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations." This definition, however, is rather broad and can often lead to misuse and misunderstanding by employers and employees alike. Below are some guidelines in determining an individual's eligibility in specific situations involving willful misconduct.
Prior to being discharged for absenteeism or tardiness, the claimant must have been warned about such conduct. Moreover, Willful Misconduct requires an element of conscious wrongdoing. Note, however, there have been cases where one absence was sufficient to show misconduct. The reason for the occurrence will be taken into consideration in determining if the claimant had a good reason for being tardy or absent, but without a showing of willful disregard of the employer's interests, benefits cannot be denied. Generally, if an individual has good cause for missing work, such as being ill or having an ill child, and reports off according to the employer's policy, that individual's conduct does not rise to the level of willful misconduct. When the employer has a progressive discipline point system and an individual is discharged due to accumulating points as a result of absenteeism/tardiness, all absences will be reviewed to determine if if any of the absences were justified
Deliberate violation of an employer's rule which is known to the employee constitutes willful misconduct if the employer's rule is reasonable and the employee's conduct, in violating the rule, was not motivated by good cause. The employer must show the existence of the rule and that the rule was violated. The employer must also show that the claimant was aware, or should have been aware, of the rule. If this is established, the claimant must show that the rule was not reasonable, or that he/she had good cause for violating the rule. The policy violated must be placed into evidence by the Employer. Buscemi v.Commonwealth, Unemployment Compensation Bd. of Review, 485 A.2d 1238 (Pa Commonwealth Ct. 1985). Moreover, if it can be demonstrated that the rule in question was not enforced equally, the employee might not be guilty of willful misconduct. Remcon Plastics v.Unemployment Compensation Bd. of Review, 651 A.2d 671 (Pa. Commw. Ct. 1994).
Attitude Toward Employer or Disruptive Influence
Disregard of standards of behavior which an employer can rightfully expect from his/her employee constitutes willful misconduct. However, where a claimant is discharged due to his/her attitude toward the employer or due to being a disruptive influence, the employer must show specific conduct adverse to the employer's interests.
Damage to equipment or property
Negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations constitutes willful misconduct. Where the negligence results in damage to equipment, damage caused by the worker to equipment or materials is not usually misconduct. The employer must show that the action which caused the damage was willful or due to willful carelessness; or, to show that the claimant would not have damaged the equipment if he/she had used reasonable care of which he/she was capable in order for the action to be willful misconduct.
Unsatisfactory Work Performance
Unsatisfactory work performance is not considered willful misconduct where the claimant is working to the best of his/her ability. However, it is willful misconduct where the employer shows that the claimant was capable of doing the work, but was not performing up to standards despite warnings and admonitions. This is conduct showing an intentional and substantial disregard of the employer's interests.
Drug and Alcohol Testing
Unemployment law provides for the denial of benefits for failure to submit to and/or pass a drug or alcohol test, provided the test is lawful and not in disagreement with an existing labor agreement. In order to be eligible for compensation, the claimant must show that the test was unlawful, violated an existing labor agreement, or was inaccurate.
Theft is an example of Willful Misconduct but it too is rebuttable with evidence to the contrary. In one case, the claimant's testimony that she did not steal money from the employer's cash register, as accused by a coworker, was sufficient to support the adopted findings of the review board in reversing the denial of benefits. Dingbat's v. Commonwealth, Unemployment Compensation Bd. of Review, 552 A.2d 1157 (Pa. Commonwealth Ct. 1989).
In willful misconduct cases, the Employer has the burden of proving that willful misconduct has occurred. In meeting this burden, the Employer is not permitted to use hearsay (i.e. statements by persons not present at the hearing). Auddinov. Commonwealth, Unemployment Compensation Bd. of Review, 507 A.2d 913 (Pa. Commonwealth Ct.1986).
|Posted on December 19, 2014 at 2:20 AM||comments (0)|
Security Deposits. A security deposit (sometimes referred to as a damage deposit) is a sum of money that a landlord may charge a tenant to ensure that the rented property is not damaged or to ensure that the tenant does not default in any payments. A security deposit is not the same as rent because a security deposit is money owned by the Tenant (not the landlord). At the conclusion of the tenancy, the deposit is to be returned to the Tenant with interest unless there has been an authorized deduction to address repairs. In the first year of a residential lease, the landlord may not charge a security deposit that is greater than twice the monthly rental amount. At the beginning of the second year of a lease, the landlord must return any deposit amount that exceeds the value of one month's rent.
Interest on Security Deposit. In Pennsylvania, a security deposit of greater than $100 is required to be held in a Federally regulated escrow account and the landlord is required notify each of the tenants in writing, giving the name and address of the banking institution in which such deposits are held. Furthermore, if the funds are held for more than two years, they must be placed in an interest bearing escrow account. As an alternative to maintaining the funds in an interest bearing escrow savings account, a landlord is permitted to secure those sums with a bond, however, the interest must still be awarded to the tenant. At the end of each rental year, the landlord is required to pay interest dividends to the tenant.
Failure to Return A Security Deposit. Within thirty (30) days of the end of a lease, a landlord must provide a tenant with a written list of any damages to the premises for which the landlord claims the tenant is responsible. Delivery of that list shall be accompanied by payment of the security deposit (plus interest) less any deductions for damages. Any landlord who fails to provide a written list of damages within thirty (30) days forfeits all rights to withhold any portion held in escrow or to bring suit against the tenant for damages to the premises. Any landlord who fails pay the escrow amount (i.e. deposit plus interest) within thirty (30) days can be liable to the tenant for double that amount. In order to invoke these protections against the landlord, the tenant must first inform the landlord in writing of his or her new address at the time the lease ends.
Tips on Security Deposits.
· Photograph (and document) all known issues when moving into or leaving.
· Promptly report in writing all repair issues that arise during the life of the rental.
· The first year deposit can be no greater than twice the monthly rental amount.
· After the first year, the deposit must be equal to or less than one month’s rent.
· At end of rental, provide landlord (in writing by certified mail) with new address.
· When moving out, make sure the rental is clean and neat
· Save all letters (and envelopes) as well as all documents provided by the landlord.
· Read your lease and make sure you understand all key aspects
|Posted on December 19, 2014 at 2:20 AM||comments (0)|
What is a Statute of Limitations?
A statute of limitations is a deadline imposed by the law which represents the maximum time after an event has occurred that legal proceedings based on that event may be initiated. For example, if your automobile is damaged in a motor vehicle collision on December 21, 2012 the two year statute of limitations allows you to sue the parties responsible for that loss provided the lawsuit is commenced on or before December 20, 2014.
Why do Statutes of Limitations Exist?
Essentially, limitations periods exist to prevent spoliation of evidence and allow people to get on with their lives. Over time, evidence can be corrupted or disappear, memories fade, witnesses pass away, crime scenes are changed, and companies dispose of records. The best time to bring a lawsuit is while the evidence is not lost and as close as possible to the alleged illegal behavior. Moreover, people have a right to get on with their lives and not have legal battles from their past arise unexpectedly. The injured party has a responsibility to quickly bring about charges so that the process can begin.
Examples of Civil Statutes of Limitations
Assault and Battery, 2 years 42 Pa. Consol. Stat. § 5524(1)
Contract (in writing), 4 years 42 Pa. Consol. Stat. § 5525(7), (8)
Contract (oral or not in writing), 4 years 42 Pa. Consol. Stat. § 5525(3)
False Imprisonment, 2 years 42 Pa. Consol. Stat. § 5524(1)
Fraud, 2 years 42 Pa. Consol. Stat. § 5524(7)
Enforcing Court Judgments, 4 years 42 Pa. Consol. Stat. § 5525(5)
Legal Malpractice, 2 years 42 Pa. Consol. Stat. § 5524(7)
Libel, 1 year 42 Pa. Consol. Stat. § 5523(1)
Medical Malpractice, 2 years 42 Pa. Consol. Stat. § 5524(7)
Personal Injury, 2 years 42 Pa. Consol. Stat. § 5524(2)
Product Liability, 2 years 42 Pa. Consol. Stat. § 5524(7)
Property Damage, 2 years 42 Pa. Consol. Stat. § 5524(3)
Slander, 1 year 42 Pa. Consol. Stat. § 5523(1)
Trespass, 2 years 42 Pa. Consol. Stat. § 5524(4)
Wrongful Death, 2 years 42 Pa. Consol. Stat. § 5524(2)
Examples of Criminal Statutes of Limitations
Arson, 5 years 42 Pa. Consol. Stat. § 5552(b)(1)
Assault and Battery, 2 or 5 years 42 Pa. Consol. Stat. § 5552(a) or (b)(1)
Burglary, 5 years 42 Pa. Consol. Stat. § 5552(b)(1)
Disorderly Conduct, 2 years 42 Pa. Consol. Stat. § 5552(b)(1)
Kidnapping, 5 years 42 Pa. Consol. Stat. § 5552(b)(1)
Manslaughter, voluntary, No time limit 42 Pa. Consol. Stat. § 5551(1)
Manslaughter, involuntary, 2 years 42 Pa. Consol. Stat. § 5552(b)(1)
Murder, No time limit 42 Pa. Consol. Stat. § 5551(1)
Murder, second degree, No time limit 42 Pa. Consol. Stat. § 5551(1)
Rape, 12 years 42 Pa. Consol. Stat. § 5552(b)(1)
Receiving Stolen Property, 2 years 42 Pa. Consol. Stat. § 5552(a)
Robbery, 5 years 42 Pa. Consol. Stat. § 5552(b)(1)
Theft, 5 years 42 Pa. Consol. Stat. § 5552(b)(1)
The Discovery Rule
Generally, once the prescribed statutory period has expired, the complaining party is barred from bringing suit. The “discovery rule," however, is an exception to that rule, and its application tolls or delays the running of the statute of limitations. The “discovery rule" provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible. Hayward v. Medical Center of Beaver Cty., 608 A.2d 1040, 1043 (Pa. 1992). An example of the discovery rule can be found in asbestos cases; the exposure to the cancer causing agent can occur years before the injury manifests itself. The discovery rule allows the statute of limitations to begin to run from the discovery of the illness, not from the unknown exposure to the asbestos.
The equitable tolling doctrine is another way that a legal action may be initiated after the statute of limitations has expired; where the plaintiff has been actively misled regarding a cause of action the statute of limitations is tolled or extended. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994); See also Balko v. Carnegie Fin. Group Inc. (In re Balko), 382 B.R. 717, 721 (W.D. Pa. Bankr. 2008). As noted by the third Circuit Court of Appeals in their application of 42 Pa.C.S. § 5524: “There arethree principal, though not exclusive, situations in which equitable tolling may be appropriate: (1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994); See also School District of City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981) (quoting Smith v. American President Line s, Ltd., 571 F.2d 102, 109 (2d Cir. 1978); Miller v. Beneficial Management Corp., 977 F.2d 834, 845 (3d Cir. 1992). Thus, where the plaintiff has been misled regarding the reason for his or her discharge, the equitable tolling doctrine provides the plaintiff with the full statutory limitations period, starting from the date the facts supporting the plaintiff's cause of action either become apparent to the plaintiff or should have become apparent to a person in the plaintiff's position with a reasonably prudent regard for his or her rights. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1389-90 (3d Cir. 1994).
Fraudulent concealment represents still another way to proceed once the statute of limitations has passed. Fraudulent concealment arises where a defendant has attempted to mislead the plaintiff and thus prevent the plaintiff from suing on time. It requires a showing of inequitable conduct on the part of the defendant. In contrast, for equitable tolling, all the plaintiff need show is that he or she could not, by the exercise of reasonable diligence, have discovered essential information bearing on his or her claim. If fraudulent concealment is shown, the court must subtract from the period of limitations the entire period in which the tolling condition is in effect, for otherwise the defendant would obtain a benefit from his or her inequitable conduct. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1389-90 (3d Cir. 1994). The doctrine of fraudulent concealment is an exception to the requirement that a complaining party must file suit within the statutory period. Where, through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry, the defendant is estopped from invoking the bar of the statute of limitations. Aquilino v. Phila. Catholic Archdiocese, 884 A.2d 1269, 1278 (Pa. Super. Ct. 2005); See also Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 443 (Pa. Super. Ct. 2003), aff’d 881 A.2d 1266 (Pa. 2005); Kingston Coal Company v. Felton Min. Co., Inc., 690 A.2d 284, 290 (Pa. Super Ct. 1997) (citing Molineux v. Reed, 532 A. 2d 792, 794 (Pa. 1987).To establish fraudulent concealment, the defendant's conduct need not rise to fraud or concealment in the strictest sense, that is, with an intent to deceive; unintentional fraud or concealment is sufficient.
|Posted on December 19, 2014 at 2:05 AM||comments (0)|
Pennsylvania has three basic classifications of convictions (summary offenses, misdemeanors, and felonies). A summary offense is any minor crime, initially heard and decided by a district justice. Many violations of the Motor Vehicle Code, such as speeding, illegal parking and going through a red light, are summary offenses. Non-traffic summary offenses can include disorderly conduct, underage drinking, harassment, criminal mischief and first offense shoplifting.
A Misdemeanor is a middle classification of crime, representing less serious offenses than felonies. Pennsylvania law recognizes three degrees of misdemeanors. A third degree misdemeanor can carry a sentence of 6 months to one year imprisonment and a fine of up to $2,500. Examples of third degree misdemeanors (i.e. M3) include harassment, trespass, disorderly conduct, loitering and prowling, or selling liquor to minors. A second degree misdemeanor can carry a sentence of one to two years imprisonment and a fine of up to $5,000. Examples second degree misdemeanors (i.e. M2) include simple assault, reckless endangerment, manufacture or sale of false identification, false reports to law enforcement authorities. Finally, examples of first degree misdemeanors (i.e. M1) include possessing instruments of a crime, terroristic threats, indecent assault, endangering the welfare of children, or bookmaking
Outside of Murder offenses, felonies represent the most serious crimes. Like misdemeanors, Pennsylvania law recognizes three degrees of felonies. A third degree felony (i.e. F3) can carry a term of imprisonment up to seven years and carry a fine of up to $15,000. Examples of third degree felonies include stalking, interference with the custody of children, concealment of the whereabouts of a child, arson-reckless burning, criminal mischief, trespass, or robbery. A second degree felony (i.e. F2) can carry a term of imprisonment up to ten years and a fine of up to $25,000. Examples of second degree felonies include home improvement fraud, aggravated assault, sexual assault, aggravated indecent assault, and forgery. A first degree felony (i.e. F1) can carry a term of imprisonment that exceeds ten years and a fine of up to $25,000. Examples of first degree felonies include assault upon a law enforcement officer, kidnapping, weapons of mass destruction, Rape, and Burglary.
An expungement of a criminal record is a proceeding to remove reference to a prior criminal conviction. Typically, expungements are sought to clear a person’s background for employment purposes or to allow them to purchase a firearm. When an expungement is granted, the record will appear as if no conviction ever occurred. In general, misdemeanors and felonies cannot be expunged in Pennsylvania. Indeed. Only expungement of misdemeanors and felonies can be achieved only when the individual is at least 70 years old and has been free from arrest for period of ten years or that individual has been dead for at least three years. 18 Pa.C.S. § 9122(b)(1&2). Summary offenses, on the other hand, are capable of expungement. To qualify, the individual must be free from conviction for five years following the subject conviction. 18 Pa.C.S. § 9122(b)(3). Additionally, juvenile offenses are also subject to expungement provided the individual is at least 18 years old and five years has lapsed without any misdemeanors or felonies. 18 Pa.C.S. § 9123. Of course, acquittals and dismissals are also subject to expungement.
Proposed Expungement Legislation..
On February 12, 2013, the Senate Branch of Pennsylvania’s General Assembly introduced an amended bill that would broaden the range of expugnable offenses to now include certain misdemeanor offenses. SB 391 proposes to allow misdemeanors of the third degree to be expunged provided that the individual has been free of arrest for at least seven years. The proposed bill also would allow expungement for misdemeanors of the second degree provided that the individual has been free of arrest for at least ten years and provided that the individual was younger than 25 at the time of the offense.