Upon Further Review

The Month in Pennsylvania Workers' Compensation: April 2013 At-A-Glance

Mitchell I. Golding, Esq. — Wed, 22 May 2013 15:04:38 -0400

CREDIT/ NOTICE OF SUSPENSION/ RETIREMENT/WAIVER/ PETITION TO REVIEW/LITIGATION COSTS

A WCJ has the authority to suspend a claimant's benefits in the absence of a formal petition where doing so would not prejudice the claimant. A claimant is not prejudiced where she is put on notice that a suspension or termination is possible and she is given the opportunity to defend against it.

The Claimant was placed on notice that her retirement would be an alleged issue subject to a suspension, though a formal Petition for Suspension was not filed where, the WCJ's interlocutory order also granted Employer a credit against Claimant's weekly indemnity benefits for the Social Security old age benefits and retirement pension benefits, which put Claimant and her attorney on notice that her application for and receipt of Social Security old age benefits and retirement pension benefits would be at issue in the ensuing WCJ's proceeding.

Moreover, the parties fully litigated the issue of whether Claimant voluntary retired from the workforce.
An employer need not prove the availability of suitable work when the employer establishes, under the totality of the circumstances, that the claimant has voluntarily retired from the workforce. The mere possibility that a retired worker may, upon some future time, seek employment does not transform a voluntary retirement from the labor market into a continuing compensable disability.
A claimant must have the opportunity to contest the amount of a credit claimed by her employer and to have a hearing where there is a disagreement on the amount. Although the Board's regulation, at 34 Pa. Code §123.4, allows the employer to take the credit unilaterally it requires that notice be given to the claimant so that she can challenge the amount and basis for the credit.

Where the Employer took an offset pursuant to the WCJ's decision, and not unilaterally, it was not required to provide Claimant with prior notice of that offset.
The WCJ was required to reduce the Claimant's award by the amount of her unemployment compensation benefits regardless of whether the employer had requested the offset because the mandate of Section 204(a) cannot be waived by an employer.
Where no reasonable nexus or obvious relationship exists between the injury described in an NCP and a subsequently claimed physical condition, the claimant must still bear the burden of establishing the work-relatedness of a condition before an employer will bear the burden of disproving any continuing disability related to that subsequently alleged condition.
An employer may automatically suspend benefits when a claimant fails to return the completed LIBC-760, and where a party alleges non-receipt of a notice, that party bears the burden of proof.

Any notice or copy shall be deemed served on the date when mailed, properly stamped and addressed, and shall be presumed to have reached the party to be served; but any party may show by competent evidence that any notice or copy was not received. Claimant could only rebut the presumption that she received the notice by introducing competent evidence demonstrating otherwise.
Costs for a nurse to attend an IME are not recoverable as "witness" costs. While costs incurred in obtaining testimony from a witness are recoverable, "there is no authority for awarding as costs time spent by a witness observing and preparing to testify to facts."
It is well established that an issue is waived unless it is preserved at every stage of the proceeding. The strict doctrine of waiver applies to a workers' compensation proceeding. Because the issue of whether the costs were reimbursable for the nurse to attend the IME was not raised by Employer before the WCJ, it is deemed waived.

Fitchett v. WCAB (School District of Philadelphia), No. 1713 C.D. 2011 (Decision by Judge Simpson, April 8, 2013) 4/13

EVIDENCE/ DRUG TEST/SUSPENSION/NOTICE OF ABILITY TO RETURN TO WORK/APPEAL

The issuance of a Notice of Ability to Return to Work (LIBC-757) was not required where claimant, notwithstanding the occurrence of a work injury, was terminated due to failure of a drug test.

This is because Section 306(b)(3) of the Act is limited to modifications based on medical evidence received by the employer. Compliance with Section 306(b)(3) -Issuance of LIBC-757-is a threshold burden an employer must satisfy to obtain a modification or suspension of a claimant's benefits. However, Section 306(b)(3) is expressly limited to modifications sought upon the receipt of medical evidence.
The WCJ did not err in suspending the Claimant's compensation where Claimant's loss of earnings resulted from his discharge for cause resulting from his violation of Employer's substance abuse policy. This is because if the Claimant's loss of earnings is the result of the work injury, he is entitled to disability benefits; if not, benefits must be suspended.
A violation of an employer's substance abuse policy constitutes cause for a discharge.
Substantial evidence supported the finding that the Claimant failed Employer's drug test, though the drug test was not entered into evidence, where the WCJ credited employers testimony: 1) that Claimant told her that his drug test would be positive while they were driving to the emergency room on the day of the accident; 2) testified that Employer's medical facility sent her a report that Claimant's drug test had been positive; and 3) Claimant testified that he had used drugs "three days … before the accident" and that he "wouldn't dispute that the drug test was positive.
Failure to raise an issue before the Board results in waiver of the issue upon Commonwealth Courts review.

Brewer V. WCAB ((E2 Payroll & Staffing Solutions), No. 337 C.D. 2012 (Decision by Judge Leavitt, February 13, 2013) 4/13

MEDICAL BILL/ FEE REVIEW

Pursuant to the clear language of the Regulations before downcoding, an Insurer must comply with the requirements of 34 Pa. Code §127.207. Otherwise, pursuant to subsection (d) of this Regulation, the Fee Review will be decided in favor of the provider.
The Regulation 127.207, which was in question, provides in pertinent part:

(a) Changes to a provider's codes by an insurer may be made if the following conditions are met:
1. The provider has been notified in writing of the proposed changes and the reasons in support of the changes.
2. The provider has been given an opportunity to discuss the proposed changes and support the original coding decisions.
3. The insurer has sufficient information to make the changes.
4. The changes are consistent with Medicare guidelines, the act and this subchapter.
(d) If an insurer changes a provider's codes without strict compliance with subsections (a)-(c), the Bureau will resolve an application for fee review filed under §127.252 (relating to application for fee review—filing and service) in favor of the provider under §127.254 (relating to downcoding disputes).

Therefore, the Hearing Officer erroneously dismissed sixty-one consolidated fee Review Applications filed by Providers with the Bureau's Fee Review Hearing Office based upon its rational that the two decisions of another hearing officer had collateral estoppel effect with regard to Providers' Fee Review Applications where the same treatment and downcoding were at issue. This is because it was improper for the hearing officer to consider the application of the doctrine of collateral estoppel before considering first whether Insurer complied with the requirements of Section 127.207.

If a Hearing Officer concludes that Insurer did comply with 34 Pa. Code §127.207, the hearing officer then may consider whether collateral estoppel precludes consideration of the merits of a Providers' challenge to the downcoding at issue.

Brian Walsh, D.O., et al.(c/o East Coast TMR et. al) v. Bureau of Workers' Compensation :Fee Review Hearing Office :(Traveler's Insurance Co.), No. 851 C.D. 2012 (Decision by Judge Brobson, April 22, 2013.) 4/13

Pennsylvania Superior Court Rules Probable Cause Required for Court Order Authorizing Consensual Interception of Oral Communications in Home in Commonwealth v. Kuder, 62 A.3d 1038 (Pa. Super. 2013)

Brad V. Shuttleworth, Esq. — Wed, 22 May 2013 15:04:36 -0400

In the latest opinion on the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“Wiretap Act” or “the Act”), 18 Pa.C.S. § 5701, et seq., by the Pennsylvania Superior Court in Commonwealth v. Kuder, 62 A.3d 1038 (2013), the Court found there was sufficient probable cause to believe the one-party consensual interception of oral communications in a home would yield communications concerning a crime committed eight years before the intercept. The facts of the case follow.

The defendant in Kuder, some time before June 2002, developed a close relationship with the victim, a twelve-year-old boy at the time. The defendant was 49 years-old. The victim lived with his family on the same street as the defendant. On a Monday afternoon in June 2002, the victim went to the defendant’s home to help work on a computer. The defendant’s wife and toddler were present in the home at that time, and the defendant and victim went down to basement to work on the computer. After a few minutes and without warning, the defendant lifted the victim onto his lap and fondled his penis. The defendant then removed the victim’s pants and masturbated him, assuring him that his conduct was proper because it prepared him for future relationships with women. The victim tried to get free, but the defendant had him in his grasps, only letting go after a few minutes when he took down his own pants. More inappropriate acts occurred until the victim’s mother called the defendant’s home, telling the defendant’s wife that the victim had to go to a meeting.

The victim declined the defendant’s subsequent invitation to return to the basement. However, that rejection angered the defendant to the point that he told the victim, “[i]f you were an adult, I would have beat you for standing up to me like that.” The victim then reluctantly returned to the defendant’s house under the pretext of working on the computer, where the defendant engaged in more inappropriate behavior and contact with the victim. After the victim left, he never returned to the defendant’s home.

The defendant was a close personal family friend of the victim’s parents, and he went on vacations with the victim’s family and they frequently visited each other’s homes. The defendant was referred to as the victim’s “uncle”. This relationship lasted well past the defendant’s inappropriate activities with the victim.

The victim never told anyone about the defendant’s abuse until 2010, when he learned his girlfriend was also a victim of child abuse. He told his girlfriend, then his family, and soon thereafter the police were contacted. After meeting with two detectives, he agreed to wear a recording device to obtain a confession from the defendant. An assistant district attorney then obtained a court order authorizing the wire interception of communications between the victim and the defendant in a home.

On June 11, 2010, after being equipped with a recording device, the victim went to the defendant’s home and started a conversation with the defendant, which was casual at first. Eventually, the victim confronted the defendant about the abuse that occurred in 2002. The defendant never denied that the incidents occurred, and admitted he had clear memories about the acts. He expressed sorrow and mortification for his behavior, apologized and begged for forgiveness.

After being arrested, charged and convicted of several offenses stemming from the above-described acts, the defendant appealed, inter alia, the trial court’s denial of his pretrial motion to suppress the audio recordings of the recorded conversation with the victim, which had been played for the jury at trial. The defendant challenged the existence of probable cause to support the authorization of interception, the voluntariness of the victim’s consent to wear the wire, and the accuracy of the facts contained in the affidavit offered in support of the wire authorization.

The Wiretap Act generally prohibits the interception, disclosure, or use of any wire, electronic or oral communications, absent certain enumerated exceptions contained in 18 Pa.C.S. 5704. One such exception is a one-party consensual interception, which is contained in subsection (2)(iv) of Section 5704. It requires that, if a one-party consensual interception supervised by a prosecutor will take place in the home of a non-consenting party, as was done in this case, the court order must be “based upon an affidavit by an investigative or law enforcement officer that establishes probable cause”.

The Superior court in Kuder found that there was probable cause to believe that communications relevant to the defendant’s sexual crimes would have been obtained through the interception. The time period of the crimes and the interception, approximately eight years, did not warrant a conclusion that there was not probable cause to believe the interception would have yielded communications of sexual crimes because of a close and ongoing relationship between the defendant and the victim and the victim’s family. That relationship made it more probable that such communications would occur during an interception. The court implied that it may have come to a different conclusion absent the close and ongoing relationship between the defendant and the victim and the victim’s family.

After addressing the defendant’s other challenges on appeal, the Superior Court affirmed the judgment of sentence. The defendant filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court on March 22, 2013. Decision on the Petition for Allowance of Appeal is pending at the time of this writing.

Read Commonwealth v. Kuder by visiting the following URL: http://www.pacourts.us/assets/opinions/Superior/out/s53030_12.pdf?cb=1.

You Have the Right to . . . Give a DNA Sample

Gregory R. Weyer, Esq. — Wed, 22 May 2013 16:10:42 -0400

Criminal procedure is once again forced to grapple with the interplay between medical and technological advancement and the rights of the accused. While it is well established under Fourth Amendment jurisprudence that the government has a right to keep a DNA data bank storing the genetic information of convicted criminals, the Supreme Court has yet to rule on the constitutionality of this practice as it relates to mere arrestees.

Current State of DNA Data Banks

The Supreme Court’s opinion is essentially ruling on the constitutionality of federal law, as well as the laws of 28 states, that call for the automatic DNA collection from arrestees. Some of the state laws provide for such collection only when a person is arrested as a suspect in an enumerated serious crime. However, other states laws, and federal law, give the government the authority to collect DNA of any arrestee. Furthermore, all of of these laws require neither any level of particularized suspicion that the arrestee committed another crime in the past, nor any showing that the arrestee’s DNA is relevant to the crime of which he or she is accused.

Maryland v. King

The King case is a perfect illustration of how DNA collection for arrestees will lead to more convictions. However, the case is also a perfect example of the need for more clarity as to the constitutionality of warrantless DNA searches of arrestees.

In 2009, Alonzo King was arrested for assault, which was an enumerated offense allowing for the warrantless collection of his DNA pursuant to Maryland state law. When King’s DNA was checked against the federal DNA database, the DNA matched DNA found in a rape kit from 2003. Although the DNA hit led to King’s conviction at trial, the Maryland Court of Appeals threw out the conviction upon a finding that the DNA collection violated King’s rights to be free from unreasonable searches. In short, the Maryland court considered the DNA collection to be an impermissible fishing expedition. Maryland then initiated an appeal to the United States Supreme Court, which granted Maryland’s request to hear the case.

Likely Outcome

Ultimately, it seems likely that the Supreme Court is going to uphold Maryland’s law providing for warrantless DNA collection of arrestees. Oral argument compared the practice of placing a cotton swap to the inside of an arrestee’s cheek with everything else to which an arrestee is subject, such as fingerprinting, searches incident to arrest, and incarceration. Such comparisons tend to suggest that there is nothing about DNA collection that will lead the Court to declare the practice an unconstitutional intrusion into an arrestee’s privacy.

Implications for Pennsylvania

It is unclear what, if any, effect that the outcome of Maryland v. King will have on Pennsylvania law. Pursuant to 44 Pa. C.S.A. §§2301-2336 (“the DNA Act”), only those convicted of certain enumerated offenses are subject to having their DNA collected for the purposes of a government DNA base. If the Supreme Court upholds warrantless DNA collection for arrestees, it remains to be seen whether the Pennsylvania legislature would then attempt to expand the reach of the DNA Act. Furthermore, even if all of this happens, final word would come down to the Pennsylvania courts. After all, as the courts have often said, Article I, Section 8 of the Pennsylvania Constitution affords Pennsylvania’s citizens greater protections than the Fourth and Fourteenth Amendments of the United States Constitution.

Superior Court Reverses Grant of Suppression

Burton A. Rose, Esq. — Wed, 22 May 2013 15:04:32 -0400

In COMMONWEALTH of Pennsylvania, Appellant v. Brian JOHNSON, Appellee, 2013 WL 1737024, No. 1425 EDA 2012 (April 23, 2013), the Superior Court of Pennsylvania ruled in favor of the Commonwealth on an appeal from a suppression Order entered by Judge John Rufe of the Court of Common Pleas of Bucks County, Criminal Division, CP-09-CR-0000455-2012. The case was before Judges PANELLA, ALLEN, and PLATT. Judge Allen wrote the Opinion without any dissent.

The Commonwealth challenged the trial court’s conclusion that the police officers lacked the probable cause and exigent circumstances necessary to take the Appellee into custody and search his trailer.

The facts were that police officers arrived at Johnson’s trailer in response to a report of ongoing drug dealing. While making their way to Johnson’s trailer, the police officers encountered a woman who met the description provided to them as being involved in the drug activity which they were investigating. Fearing that the woman would alert the occupants of the trailer to their presence, leading to the destruction of evidence, the police officers opted to knock on the door of Johnson’s trailer in furtherance of their investigation. Upon ascending the steps to the door of the trailer, the officers immediately detected a strong odor of burnt marijuana coming from within the trailer.

The officers then proceeded with their investigation by knocking on the door of the trailer. When Johnson opened the front door, the officer could see that the trailer was smoke-filled and the smell of burnt marijuana coming from the trailer became even stronger. Johnson exited the trailer and came out to the porch. The police officers asked Johnson if they could enter his residence but Johnson refused. The officers informed Johnson that they would obtain a search warrant, whereupon Johnson crudely suggested that they do so, and immediately attempted to retreat indoors, when the police officers took hold of him to prevent him from re-entering where he might destroy evidence. Johnson resisted the officers’ attempt to restrain him. Following a scuffle, the officers subdued Johnson, placed him in handcuffs, and then conducted a protective sweep of Johnson’s trailer, looking into the rooms to ensure that there were no other occupants. Johnson was transported to the police station, where he provided a written statement admitting to the possession, use, and delivery of marijuana, and indicating that there was marijuana stored in the kitchen cabinet of his trailer.

Judge Allen wrote that it was not unreasonable, under these circumstances, for the officers to knock on the door, rather than wait outside for a search warrant, given that they were already standing in full view on the porch steps, together with their concern that the woman would alert the occupants of the trailer to their presence, and that the occupants would have the opportunity to dispose of the burning marijuana. Moreover, once the police officers knocked on the door, they did not immediately arrest Johnson or intrude into the trailer, but asked to enter, and complied when Johnson refused. Only when Johnson sought to retreat did the officers restrain him, simultaneously informing him that they needed to secure the trailer, pending a search warrant, out of fear that Johnson might destroy the burning marijuana.

The police officers’ restraint of Johnson occurred in response to the immediacy of the events rapidly unfolding before them. Given the officers’ belief that marijuana was actively burning in the residence, the officers had a legitimate concern that evidence would be destroyed if Johnson was allowed to re-enter, an exigency which justified their attempt to secure Johnson. Therefore, it was certainly reasonable for the officers to believe that Johnson might destroy any drugs inside the trailer, and otherwise act to frustrate the police investigation. Accordingly, the Court concluded that the officers’ restraint of Johnson was supported by both probable cause and exigent circumstances and reversed the lower court.

Raymond F. McHugh, Esquire of Feasterville represented the Appellee.

The Month in Pennsylvania Workers' Compensation: March 2013 At-A-Glance

Mitchell I. Golding, Esq. — Wed, 17 Apr 2013 10:42:03 -0400

RETIREMENT

Pennsylvania Supreme Court affirms the Commonwealth Court and holds that the Employer did not prove that the Claimant had retired from the workforce due to Claimant’s receipt of a disability pension. The receipt of the pension only showed that she could not perform her time-of-injury position but it does not necessarily follow that she, and all workers similarly situated to her, decided to forgo all employment and are retired from the workforce.
Where the employer challenges the entitlement to continuing compensation on grounds that the claimant has removed himself or herself from the general workforce by retiring, the employer has the burden of proving that the claimant has voluntarily left the workforce.
There is no presumption of retirement arising from the fact that a claimant seeks or accepts a pension, much less a disability pension; rather, the worker’s acceptance of a pension entitles the employer only to a permissive inference that the claimant has retired.
Such an inference, if drawn, is not on its own sufficient evidence to establish that the worker has retired. The inference must be considered in the context of the totality of the circumstances. The fact finder must also evaluate all of the other relevant and credible evidence before concluding that the employer has carried its burden of proof.
If the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there in fact has been a compensable loss of earning power. Conversely, if the employer fails to present sufficient evidence to show that the claimant has retired, then the employer must proceed as in any other case involving a proposed modification or suspension of benefits.
The fact that Claimant did not submit evidence showing that she was unable to work does not prove voluntary retirement, especially in light of the Employer’s own medical testimony regarding Claimant’s physical limitations, and the absence of evidence of available work within her restrictions or expert testimony regarding her earning power.
The totality of the circumstances test places the burden upon the employer to show by the totality of the circumstances, that efforts to return a claimant to the workforce would be unavailing because the claimant has chosen to retire rather than return to the workforce. Circumstances that could support a holding that a claimant has retired include: (1) where there is no dispute that the claimant retired; (2) the claimant’s acceptance of a retirement pension; or (3) the claimant’s acceptance of a pension and refusal of suitable work within her restrictions.

City of Pittsburgh v. WCAB (Robinson), No. 18 WAP 2011 (Decision by Justice Castille March 25, 2013). 3/12

Attorneys Beware: The Fake Creditor Scam

Gregory S. Shields, Esq. — Wed, 17 Apr 2013 10:42:01 -0400

As a solo practitioner or small firm owner, few things are more exciting than obtaining a new client. What follows is a warning about how what seems like a great case may end up costing you everything in your bank account and then some. The scam goes like this: You receive an unsolicited email from a creditor seeking legal assistance to collect on a debt. You respond to the phone number in the email and speak to the creditor. The creditor is a Michigan business that has run into trouble with a client in Pennsylvania. He has allowed the local debtor to continue its relationship but now the debt is out of control and something must be done. He informs you that he feels all that will be necessary is a demand letter from your office. Upon asking how he found you, he replies from the local bar association. At this point, some due diligence on your part reveals that the creditor is a real Michigan company. Moreover, the judgment debtor is a genuine company, registered with the Commonwealth of Pennsylvania. The credit agreement and invoices provided from the client are signed by a man who is listed as an officer of the debtor company. Everything seems to check out ok. Unlike most clients, this gentleman does not seem to care a great deal whether you represent his business on an hourly or contingent rate, but ultimately you agree this will be a contingent matter. You draft a fee agreement for your new client. It is returned immediately. Upon receipt of the agreement, you draft a demand letter. In response, and with record haste, comes a letter from the judgment debtor on company letterhead. Enclosed is a certified check with a hologram and watermark. It is drawn on a big bank and is in the amount of $198,750.00, 100% of the demand made out to your firm alone. Why couldn´t all your collection matters be this easy? You contact your client who is happy to have you deposit the check and then cut him the client´s share from your trust account. You laugh all the way to the bank, (literally perhaps), with visions of what all this wealth can bring you. After about 24 hours, your trust account shows that the funds have cleared. You cut your client a check for his share and yourself a check for the remainder. Everything is right with the world. But then, five weeks later, you receive a phone call from your bank. The certified check was a fake and you, as the account holder, are responsible for the funds that are deposited into your account. Your "client" has long ago left for the Caribbean and you are now staring down some extraordinary financial and legal troubles. Usually, fake creditors are obvious. Their email solicitations come from overseas with nonsensical details or are simply way too vague to be taken seriously. They are often no more credible than the ubiquitous Nigerian Prince who needs your help to move some money out of the country. Here we have real companies with the names of real individuals. There are working phone and fax numbers and the people speaking to you sound perfectly credible. Luckily, there were three red flags when I was working my way through this matter. First, the creditor used two different email accounts. While they both contained some variation of his name and some numbers, they were not sent from the creditor company´s domain. Rather, they arrived from Hotmail or AOL accounts. This seemed a little odd. Second, the envelope containing the check from the "Pennsylvania debtor" was postmarked in Canada. This can be an easy thing to miss, however. Your attention is certain to be drawn more towards the six figure check in your hand than an empty envelope. Also, if an assistant opened the mail and threw out the envelope you would have no way of knowing. Last, the scammer got greedy and sent his certified check before my demand letter was mailed. There was basically no way that the debtor could have known that I represented the creditor. The lesson is to be diligent in accepting new clients and beware of certified checks. If there is any doubt whatsoever, contact your local bank and ask them how long it would take to determine for certain that the check is legitimate. Use phone numbers found on company websites, not those provided in emails from the contact. If you run up against this scam, report it to the local authorities. Unfortunately, no one investigated my case but it doesn´t mean someone may not take it more seriously in the future. You may save the next attorney his livelihood!

Inheriting Digital Assets

Adam S. Bernick, Esq. — Wed, 17 Apr 2013 10:41:58 -0400

Attorneys who write wills and trusts as part of their practice have frequently been requested to write detailed clauses disposing of various forms of property, from tangible personal property, such as jewelry, to intangible personal property, such as trademarks, copyrights and patents, and real property. Within the last decade, a fourth category has come into being- digital property. Problematically the law governing the disposition of digital property is out of date.

For example, who has the right to passwords and user names, and can these be given or bequeathed or otherwise devised via a will or trust? Do domain names constitute intellectual property? What about content of material posted on social media, such as photographs posted on a Facebook page of someone who is now deceased? In addressing these questions two fundamental documents affect the answers to these questions: the terms of service of agreements between the now deceased individual and the company providing the service, such as Comcast®, Google®, Yahoo®, etc…, and the 1986 Stored Communications Act, ("SCA", codified at 18 U.S.C. Chapter 121 §§ 2701-2712).

The SCA, in essence, prohibits consumer electronic-communications companies, such as AOL® or Google®, from disclosing the content of an individual´s account and communications and postings therein without the owner’s consent or a government order such as a warrant. 18 U.S.C.A. § 2703. While the statute predates popular use of the Internet or the more recent advent of social media, it remains in effect.

The Internet Service Providers ("ISP") such as Comcast® or Verizon®, Internet Services such as Yahoo® and Google® ("IS"), social media companies such as Facebook® (collectively "Internet Companies") have voluntary Terms of Service Agreements ("ToS") between the company and individual or entity that creates an account with the Internet Company. By way of illustration, Facebook´s® ToS specifically states that "[Y]ou [the account holder] will not share your password (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account." Facebook®, Statement of Rights and Responsibilities, Section 4, 8. Likewise, the account cannot be transferred without permission of Facebook®. Similarly, Yahoo´s® ToS specifically states that "[N]o Right of Survivorship and Non-Transferability. You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted." Yahoo® Terms of Service Agreement, Paragraph 28. While Yahoo® "may" allow the account to transfer and data to be accessed if there is a specifically worded clause in a will, there is no guarantee this will occur. Internet Companies, especially social media companies such as Facebook, have resisted such efforts, going so far as to seek court orders to deny access to protect the privacy of the deceased account holder. Therefore, whether Internet Companies need allow access to the content of a deceased user´s account is up to the company providing the service absent a state law to the contrary, which in any event could be considered in conflict of the SCA prohibiting such access absent a warrant.

While some Internet Companies may permit the memorialization of someone´s account, so that they have a presence on a social media site even after they pass away, generally the account cannot be altered or otherwise accessed.

As of the date of March 1, 2013, 5 states have enacted statutes to enable fiduciaries to access online accounts: Connecticut Statutes § 45a-334a (see also Proposed Bill 5227 introduced January 11, 2013, status); Idaho Statutes §-15-3-715(28); Oklahoma Statutes § 58-269; Rhode Island General Laws Chapter 33-27; Indiana Code § 29-1-13-1.1. Whether the Internet Companies will respect these statutes or whether the courts will uphold them in light of the SCA remains to be seen as no cases have reached the US Supreme Court regarding executors accessing such content.

Pennsylvania had proposed legislation to amend Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes, in administration and personal representatives, providing for power over decedent account on social networking website, microblogging or short message service website or e-mail service website, under PA HB 2580 in the 2012 session of the Legislature, but the statute has not been so amended, and new legislation will need to be introduced in 2013.
Individuals may be tempted to consider the executor of the estate or heirs as third party beneficiaries to the digital information, but many ToS frequently specifically waive this. Moreover, due to the SCA, even if you were to leave a list of your passwords to various sites, arguably only the person who registered for the account could use such passwords and it would be an arguable breach of the SCA for an heir or executor to do so after the account holder died.

Based on the above, then, even if one writes a will and specifically grants the executor authority over social media accounts, email, etc…the Internet Companies may not allow access to such accounts of a deceased individual or to the contents thereof. Moreover, once the Internet Companies are aware that the individual is deceased, they will begin closing such accounts generally.

By contrast, if one executes a Power of Attorney or is under a guardianship, it may be possible to obtain such data and information because the agent/guardian is in essence acting for an individual who is currently alive. Nonetheless, agents and guardians should expect a lot of red tape in accessing this data, and may have to take legal action to secure it.

I will not discuss the intricacies of the Internet in terms of who has the right to lease or otherwise grant the right to the use of a domain name. However, it is generally recognized that if you are the registered owner of a domain name, you own the legal domain name rights to the domain name. If the domain name is a registered trademark, it may be considered intellectual property, and thus possible to bequeath; however, a critical issue is if the registration lapses because the fees to renew or extend the rights to the domain name are not timely paid, which means the domain name might be re-issued to other individuals. Likewise, if the domain name is registered in the name of a corporation, and the corporation has perpetual existence, even if a decedent is the sole owner of the corporation, it would be possible to renew the registration with only the payment of the registration fee.

A separate issue is whether forms of digital property that are not owned in any fashion, but used by the deceased individual. By way of illustration, an individual does not generally own any of the items purchased on Apple´s Itunes® or Amazon´s Kindle® application because the purchaser generally purchases the license to use the digital files, not the actual song or book in a digital form. Also, generally the license is "non-transferrable". While the files in the account may not be considered an asset that can be used by others, the account itself may be considered an asset. It may be possible to create a trust while you are alive to own the license for benefit of your heirs. While this in itself raises a variety of issues, such as who would serve as a trustee and would the digital licensor recognize or continue to recognize such rights, it is an option to consider.

Digital assets could be lent or sold to third parties if the licensor of the product permits such transfers by the retail store that has the right to resell the right to use the licensed product. Presumably, there would be a variety of threshold questions to address, primarily compensation to the publisher of the material, compensation to the licensor, eliminating access by the initial purchaser. By way of illustration, were Apple to permit sale of a music collection purchased on its iTune® store by customer A to Customer B, the transaction would have to proceed through the iTune® store. Unlike purchase of a book or cd from a retail store, which could then be sold or left to heirs via a will, even if internet companies such as Apple permit transfer of the right to use a licensed product, freely transferring the rights to license to the product or leaving it to heirs may not be contemplated, or even if eventually granted would likely still involve fees for the transfer. While there may be an eventual arraignment addressing these issues, with licenses eventually being transferable via the retail store that sold customer A the right use the initial licensed product, this is not generally currently the case.

Consequently, individuals should be aware that when they create their wills, their executor may not have any authority to retrieve data, including photographs posted to social media websites. While such clauses may be added to their wills, the Internet Companies could still decline access to the data. Likewise their books on Kindle® or collection of music on iTunes® may vanish when they die, instead of being able to be transferred to heirs. Clients should be advised to save all such photographs and data that they want passed to heirs to a hard drive that can be backed up, or print out the data in question, to the extent that there is no license infringement in doing so. If Internet providers or companies allow multiple account holders´ consideration should be made to setting up accounts to add heirs so that they can access the data.

Money for Injuries During Marriage Are Divisible After Marriage

James W. Cushing, Esq. — Wed, 17 Apr 2013 10:41:56 -0400

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

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

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

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

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

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

Online Security Tips

Dan Giancaterino — Wed, 13 Mar 2013 11:11:58 -0400

As I write this article, we're only 37 days into 2013 and already it's been an interesting year for Internet security. In mid-January the U.S. Computer Emergency Readiness Team, a unit of the Department of Homeland Security, warned that hackers were actively exploiting vulnerabilities with the Java browser plug-in. At the end of the month came news that Bloomberg, The New York Times, The Wall Street Journal and The Washington Post had been infiltrated by Chinese hackers. At the same time Twitter blogged that "limited user information" for 250,000 accounts was stolen by hackers and implied that the attack was related to those at the U.S. news sites.[1] And in early February the activist group Anonymous posted contact information for 4,000 bankers that it grabbed from the Federal Reserve.

Has the Internet become so dangerous that you need to hire an IT security consultant? Not necessarily. Below are 3 easy steps that you can take to greatly increase your online security.

Enable 2-Step Authentication

I've previously written about the importance of creating unique, strong passwords for each Web site requiring a login.[2] However, even if you employ these good password practices, you're still at the mercy of the Web sites themselves. If they're hacked, your login credentials could be stolen. What you need is a way to be alerted immediately when someone tries to access your account.

Google has developed an opt-in security feature that does just that. It depends upon the combination of two things:

Something you know - your username and password
Something you have - your mobile phone

With 2-step authentication turned on, Google will automatically text a 6-digit code to your mobile phone whenever you try to log in. You'll be prompted to enter the code after you type your password. A hacker would need access to both your password and your cellphone in order to have the "keys" to get into your account.

If you regularly visit Google from a computer that you control (i.e. one that is in your home or office), you can choose the "Trust this computer" option and you won't need to reenter the code for 30 days.

Other popular sites have now followed suit, including Dropbox, Facebook, LastPass, Microsoft SkyDrive, WordPress and Yahoo Mail. (WordPress uses the Google Authenticator app for iOS or Android.)

Here's a short video demonstrating how 2-step authentication works:

Disable Java

Java applets were all the rage in the '90s because they offered a cross-platform approach to computer programs: "write once, run anywhere". Today your computer uses Java for many tasks, both offline and online. This article will address one specific instance: Java in your Web browser.

Java is used on the Web for interactivity -- in online games, for example. Unfortunately, Java has a history of security vulnerabilities that its current owner, Oracle, can't seem to completely eradicate. Hackers can take advantage of these to hijack your computer. In fact, 50% of known exploits in 2012 targeted Java. Thus many computer security professionals recommend that you disable Java in your browser. Here's how to do it for two of the most popular Web browsers[3]:

Firefox
Click on the Firefox button, then click on "Add-ons". On the left-hand side of the page, click on "Plugins". Finally, click on the "Disable" button next to any Java plug-ins that you see in the list.

Google Chrome
Type chrome://plugins into the address bar, then click the "Disable" link for any Java plug-ins.

This video demonstrates both of these procedures:

Since much of Java's functionality has been replaced by Adobe's Flash platform, you probably won't notice any difference once you disable Java (unless you play online games). The only sites I've encountered recently that relied on Java for all or part of their functionality are the official U.S. time site and The Wall Street Journal dynamic stock charts. If you do run into a site that requires Java, your browser will prompt you to reinstall the missing plug-in. Whether you choose to do that is up to you.

Note: Java (the programming language) is not to be confused with JavaScript (the Web scripting language).

Backup Your Data

This will not increase your online security per se, but will help you quickly recover important documents if your computer's hard drive is erased by hackers. In case you're not convinced that could happen to you, read Wired journalist Mat Honan's account of his "epic hacking" in which he lost "more than a year's worth of photos, covering the entire lifespan of my daughter, or documents and e-mails that I had stored in no other location."

You can purchase a 1 TB external hard drive for under $100. Windows' Backup and Restore and Time Machine for Mac OS X make setting it up and scheduling backups a snap.

You can also use a Web-based service for around $100 per year. Here are a few of the more popular Cloud backup options:

Dropbox - Free account provides 2GB of online storage; for more space, prices start at $9.99/month.
Google Drive - Offers 5GB of storage for free. Upgrade to 25GB ($2.49/month), 100GB ($4.99/month) or even more.
Mozy - You get 2GB of storage for free. For more storage, plans start at $5.99/month for 50GB.
Windows Live SkyDrive - 7GB of free online storage. You can upgrade to 20GB ($10/year), 50GB ($25/year) or 100GB ($50/year).

If you want to go the "belt and suspenders" route -- both an external drive and a Web-based backup -- it will probably cost you less than $200. That is truly cheap insurance.

Summing Up

Odds are that you will be the victim of an online hack at some point. Prepare for that now by employing these tips.

References

[1] "This attack was not the work of amateurs, and we do not believe it was an isolated incident. The attackers were extremely sophisticated, and we believe other companies and organizations have also been recently similarly attacked." Excepted from blog.twitter.com/2013/02/keeping-our-users-secure.html.

[2] My article from March 2011 is available at uponfurtherreview.philadelphiabar.org/page/Article?articleID=929aa6c1-cbe0-479f-b53c-ab19caeb73a5. Subsequent research has shown that, as far as passwords are concerned, length beats complexity. Based on that, I've switched over to 3- or 4-word passphrases containing 20-25 characters, such as "angry docile fossils". This technique allows me to create longer passwords, yet I only have to remember 3 or 4 units, which are the individual words. The spaces also add entropy to the passphrase and make it much harder to crack.

[3] Instructions for Internet Explorer are not included because there is currently no reliable way to completely disable Java in IE. See www.infoworld.com/t/web-browsers/disabling-java-in-internet-explorer-no-easy-task-211220 for details.

Superior Court Rules on Attachment of GPS Device as a Search

Burton A. Rose, Esq. — Wed, 13 Mar 2013 11:04:05 -0400

A panel of the Superior Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania, Appellant v. Edwin BURGOS, Appellee, 718 MDA 2012, 2013 WL 618794, 2013 PA Super 26 (Feb. 20, 2013). This was a Commonwealth appeal from a suppression order of the Court of Common Pleas of Berks County, Criminal Division CP–06–CR–0002484–2011. The judges were SHOGAN, LAZARUS and OTT, who wrote the Opinion.

This was a case of first impression. The Superior Court held that the attachment and monitoring of a GPS tracking device to Burgos’s car constituted a “search” under the Fourth Amendment, citing United States v. Jones, 132 S.Ct. 945 (U.S. 2012) (the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constituted a search), and that in order for the police to attach and monitor a GPS tracking device to an individual’s vehicle in Pennsylvania, the police must have probable cause to do so, Here, the police officers obtained a court-authorized order, pursuant to 18 Pa.C.S Section 5761 [as amended, effective December 25, 2012], prior to attaching the GPS device on Burgos’s vehicle. That statute provides as follows:

18 Pa.C.S. 5761

(a) Authority to issue.—Orders for the installation and use of mobile tracking devices may be issued by a court of common pleas.

(b) Jurisdiction.—Orders permitted by this section may authorize the use of mobile tracking devices within the jurisdiction of the court of common pleas, and outside that jurisdiction, if the device is installed within the jurisdiction of the court of common pleas.

(c) Standard for issuance of order.—An order authorizing the use of one or more mobile tracking devices may be issued to an investigative or law enforcement officer by the court of common pleas upon written application. Each application shall be by written affidavit, signed and sworn to or affirmed before the court of common pleas. The affidavit shall:

(1) state the name and department, agency or address of the affiant;

(2) identify the vehicles, containers or items to which, in which or on which the mobile tracking device shall be attached or be placed, and the names of the owners or possessors of the vehicles, containers or items;

(3) state the jurisdictional area in which the vehicles, containers or items are expected to be found; and

(4) provide a statement setting forth all facts and circumstances which provide the applicant with probable cause to believe that criminal activity has been, is or will be in progress and that the use of a mobile tracking device will yield information relevant to the investigation of the criminal activity.

(d) Notice.—The court of common pleas shall be notified in writing within 72 hours of the time the mobile tracking device has been activated in place on or within the vehicles, containers or items.

(e) Term of authorization.—Authorization by the court of common pleas for the use of the mobile tracking device may continue for a period of 90 days from the placement of the device. An extension for an additional 90 days may be granted upon good cause shown.

(f) Removal of device.—Wherever practicable, the mobile tracking device shall be removed after the authorization period expires. If removal is not practicable, monitoring of the mobile tracking device shall cease at the expiration of the authorization order.

(g) Movement of device.—Movement of the tracking device within an area protected by a reasonable expectation of privacy shall not be monitored absent exigent circumstances or an order supported by probable cause that criminal activity has been, is or will be in progress in the protected area and that the use of a mobile tracking device in the protected area will yield information relevant to the investigation of the criminal activity.

Judge Ott observed that these wiretap orders serve as the functional equivalent of traditional search warrants. The Superior Court saw nothing that would support the notion that a GPS device placed onto a vehicle in full compliance with Section 5761 offends the Fourth Amendment or Article 1, Section 8 of the Pennsylvania Constitution. Because the facts in this case established the requisite probable cause to support the issuance of the order authorizing the mobile tracking device, the lower court order granting suppression was reversed.

Proving Willful Misconduct in UC Cases: Specificity Required!

James W. Cushing, Esq. — Wed, 13 Mar 2013 11:02:54 -0400

In the recent matter of Lewis v. Unemployment Compensation Board of Review, 42 A.3d 375, the Commonwealth Court of Pennsylvania has reinforced the standard of proof necessary to render an unemployment compensation claimant ineligible for benefits.

The claimant in Lewis (hereinafter "Claimant"), allegedly got into an argument with a co-worker which became loud and each made claims of superior toughness to the other. Claimant was suspended for his behavior and later terminated. It is notable that despite the apparent loud nature of the argument described above, there were no customers present and the employer was closed for the night. Additionally, Claimant never made any threats or used profanity or offensive language, and testified to getting "loud" in retaliation to his co-worker´s raised voice.

The Unemployment Compensation Service Center, Referee, and Board of Review all found Claimant to have willfully violated the employer´s work rules to cause his own termination and, therefore, was found to be ineligible for benefits; the Commonwealth Court disagreed.

At the Referee´s hearing, the employer brought only one witness who testified that the employer has rules and regulations and a harassment policy which Claimant allegedly violated which led to his termination. Claimant also provided testimony at the hearing to supplement the two written statements he made to his employer beforehand.

In reviewing the case, the Court noted that an employee´s willful misconduct is behavior which is a wanton and willful disregard for the employer´s interests, a deliberate violation of the employer´s rules and/or behavior the employer can reasonably expect, or behavior so negligent it manifests a certain culpability on the part of the employee. The burden to prove the above is on the employer, as well as the burden to prove that a claimant knew (or should have known) of the work rule at issue. If the employer can prove the above, a claimant must then prove a justifiable reason to have broken the rules in order to be eligible for benefits.

When comparing the evidence present at the Referee´s hearing (i.e., the one employer witness and Claimant´s testimony and statements described above), the Court found that the employer never once identified any rule or policy actually broken by Claimant, or provided documentary evidence of the existence of the policy. Furthermore, there was no evidence, or even finding from the Board of Review, that Claimant even knew of the applicable (if any) rules of the employer.

Therefore, due to the complete absence of any evidence or proof that Claimant knew of a work rule, and subsequently willfully broke it, the employer simply did not meet its burden of proof, rendering Claimant eligible for benefits.

May this case serve as a reminder to employers: no matter how simple a case appears, or "informal" an unemployment compensation referee´s hearing seems, the burden of proving a claimant´s ineligibility lies on the employer, and it is a burden the Court takes seriously.

United States Supreme Court Same Sex Marriage Cases - What Pennsylvania Practitioners Need to Know

Helen E. Casale, Esq. — Wed, 13 Mar 2013 11:32:26 -0400

On March 27, 2013, the United States Supreme Court will hear argument in two landmark cases involving the very controversial issue of same sex marriage. The question we face as Pennsylvania practitioners is how these cases will impact the issue of marriage in the State of Pennsylvania, if at all. The constitutionality of the Defensive Marriage Act is at issue in both cases but in very different ways. The Defensive Marriage Act or DOMA is a federal law that was enacted in 1996. 1 U.S.C.A. Section 7, 28 U.S.C.A. Section 1738(C). Section 3 of DOMA defines "marriage" and "spouse" for all purposes under federal law to exclude marriages between persons of the same sex, including marriages recognized under state law. In other words, DOMA trumps the state´s determination that a same sex couple is married and says they are not married for purposes of federal laws and programs. The word "marriage" means only the legal union of a man and a woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. This federal law has caused a lot of confusion in states wherein same sex marriage has been recognized and is now legal.

A typical example of the federal DOMA creating confusion is in the case of United States v. Windsor. 699 F.3d 169 (2d Cir. 2012). This case involves a same sex couple, Edie Windsor and Thea Spyer, who shared their lives as a same sex couple in New York City for 44 years. They were engaged in 1967 and finally married in Canada in May 2007. Subsequently, the State of New York recognized their marriage as a valid, legal marriage. Thea passed away two years after the parties were married after living for decades with multiple-sclerosis. At the time Thea died, the federal government refused to recognize their marriage and taxed Edie´s inheritance from Thea as if they were strangers. Under federal law, a spouse who dies can leave her assets, including the family home, to the other spouse without incurring estate taxes but this was not so for Edie Windsor. The federal government did not recognize Edie and Thea´s relationship as a legal marriage, therefore, the inheritance Edie received from Thea was taxable. The federal government did not recognize their marriage as valid because of Section 3 of DOMA. Edie Windsor challenges the constitutionality of DOMA and seeks a refund of the inheritance taxes she had to pay. She claims DOMA violates the equal protection clause of the United States Constitution because it recognizes heterosexual marriages and not same sex marriages despite the fact that the State of New York treats all marriages the same.

It is important to understand what this case is not about. This case does not ask the Supreme Court to recognize a federal right for same sex couples to marry. It does not challenge other state´s laws or amendments prohibiting same sex couples from marriage, otherwise known as mini-DOMA´s. In 1996 the Pennsylvania legislature amended the marriage statute to coincide with the federal DOMA, creating Pennsylvania´s own mini DOMA. Marriage in Pennsylvania is defined as a "civil contract by which one man and one woman take each other for husband and wife." 23 Pa.C.S.A. Section 1102. United States v. Windsor does not address the constitutionality of a state´s mini DOMA´s and therefore the state of the law in Pennsylvania will not change regardless of the decision in Windsor. There is no doubt though, if Edie Windsor is successful in her challenge for federal benefits under her state´s law, it will have a far reaching affect on same sex couples across the country.

Even though the issue in the case focuses only on federal estate taxes, it could be interpreted to have an impact on other types of federal benefits afforded to married couples. The Supreme Court´s ruling may then apply to married same sex couples living in other states that recognize their marriages as valid. The couples residing in those states may then be afforded the same federal benefits as married persons. The federal benefits may not then be limited to federal estate inheritance taxes but perhaps other federal benefits married couples enjoy such as Social Security benefits or even the ability to file a joint federal tax return as a married couple, something same sex couples cannot do at this time.

Perhaps the ruling in Windsor will go one step further. Perhaps it can be argued that residents of Pennsylvania who availed themselves of other state´s laws to obtain a legal marriage should be afforded these federal benefits as well? A couple does not have to reside in New York to get married. The couple can travel to a jurisdiction that allows same sex marriage and obtain a valid legal marriage and then continue to reside in Pennsylvania. Pennsylvania may not recognize the relationship as a valid binding marriage but does the federal government have to do so if there is a favorable ruling in Windsor for the petitioner? At the current time same sex couples have the freedom to marry in six states (Massachusetts, Vermont, New Hampshire, Connecticut, Iowa, New York and the District of Columbia). In addition, ten countries now allow marriage for same sex couples (Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina and Mexico). Many residents of Pennsylvania travel to these jurisdictions to obtain a marriage and continue to reside in the state.

The second case being argued on March 27, 2013, does, in fact, involve the right to marry but it may be limited in its scope. Hollingsworth v. Perry, 671 F.3d 1052 (9th Cir. 2012) involves California´s Proposition 8, a 2008 ballot initiative that amended the California Constitution to restrict marriage to opposite sex couples. Same sex couples could legally marry in California from June to November 2008 because in May 2008 the California Supreme Court held in the case, In Re: Marriage Cases 183 P.3d 384 (2012), that state statutes limiting marriage to opposite sex applicants violated the California constitution. The following month, same sex couples were able to marry in California. Then, in November 2008, the California´s electorate adopted Proposition 8, a constitutional amendment that restored the opposite sex limitation on marriage. Following the passage of Proposition 8, three same sex couples filed suit in federal court saying Proposition 8 violated the United States Constitution´s guarantee of equal protection and the right to marriage cannot be limited to heterosexuals.

While it may seem as though the opinion in Perry may be far reaching and extremely impactful on more states than just California, this may not be the case. The issue involved in Perry is actually very narrow as a result of the 9th Circuit opinion which may, in turn, limit the overall decision only to the situation found in California. Perry involves a situation wherein a state actually made marriage legal and then the electorate took this right away by the passage of Proposition 8. Proposition 8 overturned the California´s Supreme Court decision by inserting language into the state´s constitution limiting marriage to opposite sex couples only.

How will the Perry decision impact residents of Pennsylvania regarding same sex marriage? If the United States Supreme Court keeps the focus narrowed to only the situation found in California then it is unlikely to impact Pennsylvania law. There can be no doubt, however, that if both Perry and Windsor have favorable outcomes for the petitioners then it is possible for more change to come. How soon the change comes to Pennsylvania is very questionable.

Both Perry and Windsor are being argued on March 27, 2013, with a decision expected in early June. For now, the law is unchanged in Pennsylvania. Same sex couples are not permitted to marry in Pennsylvania. They can travel elsewhere to obtain a legal marriage but Pennsylvania does not have an obligation to recognize the relationship as a valid marriage. This has created a lot of problems not only for the same sex couples but for the courts. There is currently no mechanism to dissolve these same sex marriages because although a couple can travel anywhere to get married, they cannot travel anywhere to get divorced. Most states require residency to obtain a divorce. If a same sex married couple residing in Pennsylvania wants to dissolve their marriage they cannot do so, they are stuck, unless they move to a jurisdiction that recognizes their marriage as valid. But, stay tuned, perhaps that tide is changing.

The Month in Pennsylvania Workers' Compensation: December 2012 At-A-Glance

Mitchell I. Golding, Esq. — Thu, 24 Jan 2013 09:41:48 -0500

PSYCHIATRIC CLAIM

The WCJ did not commit an error of law upon applying the "physical-mental" analysis to the Claimant's claim where the triggering event was physical in nature and the Claimant subsequently developed Post Traumatic Stress Disorder, although he did not suffer a physical disability caused by the triggering event.
To substantiate a physical/mental injury claim, the psychological injury must be the result of a triggering physical event and the injury must arise in the course of employment.

A claimant need not prove that he or she suffered a physical disability that caused a mental disability for which he or she may receive benefits. Nor must a claimant show that the physical injury continues during the life of the psychic disability. Rather, a claimant need only show that a physical stimulus resulted in a mental disability.

Moreover, a claimant alleging a psychological injury stemming from a physical injury is not required to show abnormal working conditions.

In this matter, Claimant suffered a significant physical stimulus in the form of the head-on collision causing the death of the other driver before Claimant's eyes, and disabling his loaded tractor-trailer causing it to descend an embankment. Claimant's intimate involvement in the fatal accident is sufficient to constitute a "physical stimulus" to support a compensation award.
Psychological injuries fall into three categories:
1. Mental/Physical—where psychological stimulus causes a purely physical injury proof of abnormal working conditions is not required.
2. Physical/Mental—where a physical stimulus causes a psychic injury the claimant alleging a psychological injury stemming from a physical injury is not required to show abnormal working conditions. A claimant is not required to prove he/she suffered a physical disability that caused a mental disability for which he or she may receive benefits.
3. Mental/Mental—where a psychological stimulus causes a psychic injury the claimant must establish by objective evidence that he suffered a psychological injury and that the injury was more than a subjective reaction to normal working conditions. Even if a claimant adequately identifies actual (not merely perceived or imagined) employment events which have precipitated psychiatric injury, the claimant must still prove the events to be abnormal before he can recover.
These categories require different standards of proof, the last being the most rigorous, requiring proof of abnormal working conditions.

New Enterprise Stone & Lime Co., Inc., and PMA Management v. WCAB (Kalmanowicz), No. 1492 C.D. 2012 (Decision by Judge Covey, December 6, 2012) 12/12

INTEREST/ LOSS OF USE

Although the filing of the petition constituted notice to Employer that Claimant was seeking loss of use benefits, it did not establish Claimant's right to compensation. Therefore, only when Claimant had evidence that he had a permanent, loss of use of left arm and legs was compensation due and resulting interest due.
The statutory interest on the unpaid specific loss benefits began to accrue on the dates Claimant's medical expert testified that all of Claimant's work-related injuries had resolved into specific losses of her left arm and legs. Until that time, payment of the specific loss benefits was not due and payable.
A claimant is permitted to receive specific loss benefits for the work injury for which he or she is receiving total disability benefits only when total disability has revolved into a specific loss. Consequently, specific loss benefit payment may not begin until after payment of total disability payments ends. Section 306(d) of the Act.
Court notes in dicta that interest on a claimant's disfigurement benefits began to accrue on the date that the WCJ viewed the claimant's scars for the second time at the hearing.

Jacqueline Fields v. WCAB (City of Philadelphia), No. 1432 C.D. 2011(By Judge Leadbetter, April 30, 2012) 12/12

AVERAGE WEEKLY WAGE

The WCJ did not commit an error of law by applying Section 309(d) to the claimant's wage calculation rather than to Section 309(d) where the Claimant, who suffered a compensable injury on September 12, 2006, admitted that he had an ongoing employment relationship with Employer for five years prior to the work incident and although he had worked for a different employer between December 2005 and March 2006, the WCJ found employer's testimony credible as he was unaware that Claimant had ever severed ties with Employer and the Claimant did not provide any evidence that he had been terminated and reapplied for employment with employer as a new hire.
Section 309(d) and subsections (d.1) and (d.2) address work/employment histories – i.e., employees who have been employed for at least four consecutive periods of thirteen calendar weeks.

Subsections (d.1) and (d.2) address progressively shorter employment relationships: (d.1) governs employees employed for at least one, but less than three consecutive periods of thirteen calendar weeks; while (d.2) addresses cases of recent hires, i.e., employees who worked less than a single complete period of thirteen calendar weeks at the time they suffered a work injury.

The structure of the statute strongly indicates that subsection (d.2) was not intended to apply to employees, such as Claimant here, with long-term employment relationship with their employer, who happens to have been subject to layoffs. Both (d) and (d.1) include look-back periods encompassing the preceding fifty-two weeks, in search of "completed" thirteen-week periods; in contrast, subsection (d.2) has no such long-term focus, and indeed, it provides for a prospective calculation of potential earnings.

By its terms, (d.2) contemplates persons for whom there is little work history with the employer upon which to calculate the AWW. Viewing the interrelationship of these subsections, and it is unlikely that the General Assembly intended (d.2) to supplant (d) or (d.1) anytime a long-term employment relationship happens to involve periods with a "work" cessation. Instead, subsection (d.2) was intended for instances that it plainly covers; i.e., those instances of work injuries to recently-hired employees for whom there was, by definition, no accurate measure of AWW other than taking the existing hourly wage and projecting forward on the basis of the hours of work expected under the employment agreement.

Robert Janson v. WCAB (EM Force, Inc.), No. 2257 C.D. 2011 (Decision by Judge Pellegrini) 12/12

Pennsylvania Supreme Court Rules Wiretap Act Does Not Prohibit Fake Text Messages

Brad V. Shuttleworth, Esq. — Thu, 24 Jan 2013 10:02:43 -0500

In the latest decision on the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”), the Pennsylvania Supreme Court holds there is no violation of the Wiretap Act where law enforcement lies to a suspect during an investigation. The case is Commonwealth v. Cruttenden, A.3d _, 2012 WL 6570210 (Pa. Dec. 17, 2012), and the opinion is written by Justice McCaffery, with a concurring opinion by Justice Baer with which Justice Todd joins.

In Cruttenden, there were two defendants, Cruttenden and Lanier. The facts are that Pennsylvania State Troopers stopped a car and uncovered 35 pounds of marijuana, methamphetamines, drug paraphernalia, a .45 caliber handgun and a Tracfone (a mobile telephone). One of the occupants of the car, Amodeo, told Trooper Richard Houk that he had been using the Tracfone to communicate with Defendant Stephen Lanier regarding the exchange of marijuana for $19,000. Amodeo permitted Trooper Houk to use the Tracfone to pose as Amodeo while exchanging text messages with Defendant Lanier. After so doing, Defendant Lanier and Trooper Houk agreed to rendezvous at a Holiday Inn parking lot to conduct the transaction.

The troopers arrived at the meeting place and approached Defendant Lanier, who was accompanied by Defendant Cruttenden, both of whom were in a parked car. The police arrested the defendants and recovered $20,000 from Lanier’s coat pocket. After obtaining a search warrant for the car, the police recovered, inter alia, the Tracfone used to text Amodeo.

The police charged the defendants with criminal attempt, criminal conspiracy, and dealing in proceeds of unlawful activities. Each defendant filed a pretrial suppression motion alleging that the warrantless “interception” of the text messages was illegal, and not subject to an exception under the Wiretap Act.

After a hearing, the trial court granted the suppression motions, and the Commonwealth appealed to the Pennsylvania Superior Court. The Superior Court affirmed the orders granting suppression, and the Commonwealth then sought allocator, which the Supreme Court granted.

In its opinion, the Pennsylvania Supreme Court agrees with the Commonwealth’s contention that Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001), controls. Proetto held that where a law enforcement officer posing as an underage female communicated with a suspected sexual offender in a chat room on the internet, no violation of the Wiretap Act occurred because the officer was a direct party to the communication, and thus there was no “interception” of a communication. The Supreme Court finds in its opinion that the Superior Court’s distinguishing of Proetto was misplaced, in that there was no illegal “‘interception’ of text messages between [Defendant] Lanier and Trooper Houk posing as Amodeo because the trooper was a direct party to the communication and the misrepresentation of his identity was an irrelevant factor for purposes of the Wiretap Act.”

Justice Baer’s concurring opinion agrees with the court’s opinion, but states that the case is more factually similar to Commonwealth v. Smith, 140 A.2d 347 (Pa. Super. 1958) and Commonwealth v. DiSilvio, 335 A.2d 785 (Pa. Super. 1975), which both involved police officers answering telephones on the premises of bookmaking operations and acting as accomplices who could take bets, than Proetto, which involved internet communications.

Why is Cruttenden important? It helps define what does not constitute an “interception” under the Wiretap Act. That is, when someone is an actual party to a communication, they are not intercepting a communication, regardless of whether they are misrepresenting who they are. For criminal practitioners, Cruttenden can provide an invaluable defense to a client charged with a violation of the Wiretap Act. The Wiretap Act does not draw a distinction between law enforcement and civilians in defining what constitutes an interception. Thus, the government can use Cruttenden to support its burden in a motion to suppress evidence based on a violation of the Wiretap Act, and individual defendants can use it as a defense if they are charged with a violation when they were an actual party to the underlying communication. As for civil practitioners, motions to exclude illegally-intercepted communications do arise from time to time, and preventing your opposition from excluding communications can help keep in important evidence at trial.

To view the full opinion, visit the following URL:
http://www.pacourts.us/OpPosting/Supreme/out/J-115-2011mo.pdf

Making Them Pay For It – The Dashed Promise of Arbitration Fee-Shifting

Charles F. Forer, Esq. — Thu, 24 Jan 2013 10:07:22 -0500

Bob´s succinct advice: "Make the other side pay upfront." Bob figured the mere threat of payment could make potential adversaries walk away from a commercial dispute rather than fight it out in court or in an arbitration proceeding. Bob further insisted that a properly drafted arbitration provision would, in Bob´s words, "disincentivize" the other side from defending itself:

Your vendors, your customers, your suppliers and your employees all know how easy it is to make a mountain out of a molehill. They know you will pay them – or, rather, "pay them off" – if they threaten you. They know the last thing you want is to hire a lawyer to defend yourself. So make them pay for it. At the outset. Nip the problem in the bud.

Bob´s solution: an arbitration provision that forced his client´s small-fry vendors, customers, suppliers and employees to arbitrate their claims and to pay substantial upfront arbitration costs. "Make it prohibitively expensive and your adversaries will vanish."

Of course, Bob´s subtly drafted arbitration provision did not say the other side would pay "exorbitant" fees. It was democratic: "Each side shall equally share the cost of the [three] arbitrators´ fees, in the amount and manner determined by the arbitrators, forty-five days before the first day of hearing."

Several months later, Bob´s client got into a dispute with a customer, "Boot Paper Company," about paper quality. The amount at issue: $60,000.00.

In the old days, Bob´s client would have resolved the dispute quickly by taking whatever the other side offered so the dispute would go away. Not now. At Bob´s breathless urging, his client filed an arbitration demand, seeking the whole $60,000.00 from Boot Paper. Bob´s prediction: "They will fold. They cannot afford to front half of the costs of the arbitration provider and the three arbitrators."

Three weeks later, Boot Paper Company did the unexpected. It moved to dismiss the arbitration because of an "unenforceable" arbitration agreement. The first sentence in its motion: "The arbitration provision calls for fee-splitting, which would deter Boot Paper Company from defending itself."

Bob´s now former client hired new counsel to engage in the expensive motion practice of demonstrating that the arbitration provision was enforceable. Just before slamming Bob´s office door, the former client grumbled: "You told me your strategy would eliminate my legal fees. But now I have to pay a lawyer to convince the court I can assert my claims against Boot Paper in an arbitration proceeding."

Was Boot Paper´s motion frivolous? Should it have surprised Bob?

Where the claimant seeks to vindicate a statutory right, the Third Circuit has instructed that an arbitration agreement is "only appropriate `so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum´ allowing the statute to serve its purpose." Blair v. Scott Specialty Gases, 283 F.3d 595, 607 (3d Cir. 2002) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28, (1991)). And, again in the context of a claim to vindicate a statutory right, the Supreme Court has warned that "the existence of large arbitration costs could preclude a litigant such as [plaintiff] from effectively vindicating her federal statutory rights in the arbitral forum." Green Tree Financial Corp. v. Randolph, 531 U.S. 79, 90-91 (2000).

Courts will consider whether parties seeking to vindicate statutory rights can afford arbitration fees or, as Bob hoped, whether the fees deter a party from pursuing its claims. In the Third Circuit, the "initial burden of proof [is] on the party resisting arbitration to demonstrate that arbitration would be prohibitively expensive by showing `the likelihood of incurring such costs.´" Blair v. Scott Specialty Gases, 283 F.3d at 607 (quoting Green Tree, 531 U.S. 79 at 92). The party resisting arbitration must come forward with evidence to show that the projected fees would apply to the specific arbitration in question. Id. The burden of proof then shifts to the party seeking to enforce the arbitration provision to rebut the allegation that the movant cannot afford the costs of arbitration. Id. at 607-08.

This is a fact-intensive approach. The court must focus on "ability to pay the arbitration fees and costs . . . ." Antkowiak v. TaxMasters, Inc., 2012 U.S. Dist. LEXIS 35388, *3 n.1 (E.D. Pa. March 13, 2012). This exercise often will require discovery. Which means it can be expensive trying to demonstrate that arbitration is expensive. See, e.g., Blair v. Scott Specialty Gases, 283 F.3d at 609 ("Without some discovery, albeit limited to the narrow issue of the estimated costs of arbitration and the claimant´s ability to pay, it is not clear how a claimant could present information on the costs of arbitration as required by Green Tree and how the defendant could meet its burden to rebut the claimant´s allegation that she cannot afford to share the cost.").

It gets even more costly: "In making the determination regarding whether a cost provision renders arbitration prohibitively expensive, the Third Circuit has required a party challenging an expense provision to show (1) the projected costs that would apply and (2) the party´s inability to pay those costs." Antkowiak v. TaxMasters, Inc., 2012 U.S. Dist. LEXIS 35388, *3; see, e.g., Tomcykoski v. Continuing Care Rx, Inc., 2009 U.S. Dist. LEXIS 53961, *16 (M.D. Pa. June 24, 2009) ("Without showing the potential costs of arbitration and balancing this against the costs of litigation, plaintiff has not met her burden to prove the substantive unconscionability of the arbitration agreement.").

Sometimes a court expeditiously can decide these issues. See, e.g., Hurdle v. Fairbanks Capital Corp., 2002 U.S. Dist. LEXIS 18357, *21 (E.D. Pa. Sept. 17, 2002) ("Nothing in Green Tree requires courts to undertake detailed analyses of the household budgets of low-level employees to conclude that arbitration costs in the thousands of dollars deter the vindication of employees´ claims in arbitral fora."); Giordano v. Pep Boys – Manny, Moe&Jack, Inc., 2001 U.S. Dist. LEXIS 5433, *23-*24 (E.D. Pa. March 29, 2001) ("a fairly low-level employee of Pep Boys earning a relatively low wage of $400.00 per week" could not afford arbitration fees).

Other times, there will be a "gray area," see id. at *24, and the court then must scrutinize whether the party resisting arbitration can afford to pay arbitration costs. See, e.g., Hill v. Wackenhut Services International, 865 F. Supp. 2d 84, 95 (D.D.C. 2012) (rejecting claim that arbitration provision was not enforceable because it required fee-splitting: plaintiffs "provide no record support as to whether or how the costs of arbitration would discourage them from being able to pursue their claims"); Camacho v. Holiday Homes, Inc., 167 F. Supp. 2d 892, 896-97 (W.D. Va. 2001) ("[plaintiff] has presented substantial evidence that the costs of arbitrating her claims would preclude her from vindicating her federal statutory rights").

If the parties do not provide enough evidence on affordability, the appellate court could remand the case for yet additional discovery. See, e.g., Blair v. Scott Specialty Gases, 283 F.3d at 610 ("a remand is appropriate in light of [plaintiff´s] affidavit of her limited financial capacity . . . . [Defendant] should also be given the opportunity to meet its burden to prove that arbitration will not be prohibitively expensive, or as has been suggested in other cases, offer to pay all of the arbitrator´s fees.").

There are no easy way outs. See, e.g., Spinetti v. Services Corp. Int´l, 240 F. Supp. 2d 350, 354 n.3 (W.D. Pa. 2001) ("Admittedly, this case-by-case analysis may seem contrary to the arbitration process´s ability to minimize costs and streamline litigation."), aff´d, 324 F.3d 212 (3d Cir. 2003). This is bad news to folks, like Bob´s former client, who signed up for arbitration because it supposedly offered cost savings and speedy results.

After reading Boots Paper´s motion to dismiss the arbitration proceeding, Bob told anyone who would listen: "These cases talk about whether an arbitration provision discourages statutory claims. They have nothing to do with a commercial contract where a party contends that arbitration costs would prevent it from defending itself."

Only one person listened to Bob. Her retort: "Maybe yes. Maybe no. But doesn´t your arbitration provision invite lots of litigation and legal costs? Is that in keeping with the promise of arbitration." You think, Bob?

D.C. Court of Appeals applies Miranda, Edwards

Burton A. Rose, Esq. — Thu, 24 Jan 2013 10:09:40 -0500

The DISTRICT OF COLUMBIA COURT OF APPEALS sitting en banc has issued an Opinion in the matter of UNITED STATES v. JAMES DORSEY, APPELLANT, No. 06-CF-1099 (January 3, 2013). This was an appeal from the Superior Court of the District of Columbia. The Appellant James Dorsey was convicted after a jury trial of assaulting and robbing an elderly street vendor. The videotape of Dorsey´s confession, introduced at his trial by the prosecution in its case-in-chief, was the most compelling evidence against him.

In this appeal, Dorsey contended that the trial court erred in admitting the confession. While he was in police custody, Dorsey "endured a grueling overnight interrogation" during which detectives violated the rules of Miranda v. Arizona and Edwards v. Arizona by continuing to press him to confess after he invoked his Fifth Amendment rights – both his right to cut off further questioning and remain silent, and his right to have counsel present during his questioning. When the detectives returned Dorsey to his holding cell, he still had not incriminated himself. Approximately seven hours later, however, Dorsey called out from his cell and asked for a second meeting with the detectives, saying he wanted to confess. He proceeded to do so without explicitly waiving his constitutional rights.

The lower court concluded that, notwithstanding the Miranda and Edwards violations, Dorsey validly initiated his second meeting with the detectives and waived his rights, holding that Dorsey was motivated to confess by feelings of remorse. However, the Court en banc ruled that Dorsey´s initiation and waiver were invalid because he had been "badgered" into giving up his rights and applied the rule announced in Edwards that a suspect in police custody who has invoked his Fifth Amendment right to counsel may not be interrogated further unless the suspect initiates the conversation with the police and waives his Miranda rights knowingly, intelligently, and voluntarily.

The record shows that over five-and-one-half hours, the detectives persisted in trying a variety of techniques to persuade Dorsey to give in and confess. They deprived him of needed sleep, ignored his evident physical discomfort and symptoms of alcohol withdrawal, and emphasized his powerlessness. They disparaged Dorsey´s desire to talk to a lawyer and to go to court, implying that counsel would give him bad advice and that he could not receive a fair trial. They told him to stop lying, presented him with additional incriminating facts, and insisted that his "story" was "falling apart" as the evidence against him mounted. The interrogator said that he would be more "sympathetic" than a court would be in this "high profile case" that had made "everybody . . . outraged." He appealed to Dorsey´s "conscience" and his feelings for his mother, encouraged him to call her, and opined that his mother herself would tell him to confess. "All you need to do now," the detective recommended, "is explain to me, you know, some things went bad, I was tired. . . . I made a mistake, I need drug treatment. . . . You didn´t mean to hurt that lady, you know, if that´s what you want to say." He reminded Dorsey of what was depicted on the videotape of the robbery and offered to "represent to the United States Attorney" that Dorsey did not mean to hurt the victim. Invoking both his and Dorsey´s experience with the criminal justice system, the detective warned Dorsey that the prosecutors would "up the charges" if he did not confess. "I´m telling you the truth," he added, "Think about it, Think about it."

The Court held that the detectives violated Edwards by continuing to press Dorsey to confess after he had invoked his right to counsel. The government´s burden was to overcome the presumption that Dorsey succumbed to that pressure when he decided to talk to the police. Dorsey did not validly initiate the resumption of his interrogation within the meaning of Edwards after the post-invocation badgering he endured. Therefore, Dorsey´s confession should have been suppressed.

The Month in Pennsylvania Workers' Compensation: November 2012 At-A-Glance

Mitchell I. Golding, Esq. — Wed, 19 Dec 2012 15:24:33 -0500

SUPERSEDEAS/ SUBROGATION

The Pennsylvania Supreme Court affirms the Commonwealth Court and holds that where the parties executed a Third-Party Settlement Agreement, which obliged the employer to pay its pro rata share of attorney fees and costs, and the WCJ subsequently granted the employer’s Petition for Modification, the employer was entitled to reimbursement from the Supersedeas Fund for the monies paid to the claimant following the execution of the Third-Party Settlement Agreement in the form of its pro rata share of attorney fees and costs over the resulting grace period in addition to the unreimbursed balance of benefits paid to the Claimant.
The Court reasoned that there is no language in either Section 443 or Section 319 that would transform the unreimbursed portion of these weekly compensation benefit payments into something other than compensation merely because that portion was deducted in order to compensate the Claimant for the costs of recovering the Third-Party Settlement Agreement.
Accordingly, the Unreimbursed Pre-Settlement Payments constitute compensation later determined not to have been payable for purposes of reimbursement from the Supersedeas Fund under Section 443.
The Court further concluded that given that the statute credits the employer with paying future weekly installments of compensation via the excess recovery, the weekly amount actually paid by the employer during the grace period may also be considered reimbursable “compensation” for purposes of the Supersedeas Section 443.
Under Section 443(a) an employer must meet the following five criteria to obtain reimbursement from the Supersedeas Fund: (1) supersedeas was requested; (2) the request for supersedeas was denied; (3) the request was made in a proceeding under Section 413 or 430 of the WCA; (4) payments were continued because of the order denying supersedeas; and (5) in the final outcome of the proceedings, it was determined such compensation was not, in fact, payable.

Department of Labor and Industry, Bureau of Workers’ Compensation v. WCAB (Exelsior Insurance) No. 46 MAP 2011 (November 21, 2012, Decision by Justice Baer) 11/12

Movin' on Up?

Adam S. Bernick, Esq. — Thu, 20 Dec 2012 09:34:35 -0500

Sherman Alexander Hemsley, a native of Philadelphia, better known for his role as George Jefferson in “All in the Family” and “The Jeffersons”, and later as Deacon Ernest Frye on “Amen”, died in Texas on July 24, 2012, yet remained unburied in a freezer until November 21, 2012, due to a will contest in the El Paso, Texas probate court. Although the court there recently upheld the will and authorized the executrix to make burial arrangements, the court’s order may be appealed, leaving Mr. Hemsley, while now interred and hopefully “moving on up”, potentially in limbo. What law applies to burial in similar situations in Pennsylvania?

As a general rule, the Courts of the Commonwealth have long recognized that "the duty to determine when, where and in what manner the body shall be buried rests with the executor or administrator. Pettigrew v. Pettigrew, 207 Pa. 313 (1904). But, this presumes that the Register accepted a will for probate, and that no one challenged the will, so that the Register granted letters testamentary to a personal representative of testator’s estate, which actually has instructions as to the disposition of testator’s remains. Absent such clear instruction, deciding on the disposition of testator’s remains generally does not fall to the personal representative of the estate. See, Hodge v. Cameron, 132 Pa. Super 1 (1938). A person cannot become the executor until the will is filed with the Register of Wills, it is accepted, and letters testamentary issue under seal of the Register confirming the appointment of the individual as executor of the estate.

Problematically, most Registers of Wills in Pennsylvania will not issue letters testamentary prior to disposition of the remains of the decedent and issuance of the death certificate. Nothing in the Probate, Estate and Fiduciary Code (Title 20, “PEF”) specifically states that a death certificate must be produced to the Register in order for the Register to accept into probate testator’s will. Among the prerequisites that the proponent of the will must produce to the Register is “a death certificate (or other appropriate proof of death).” Register of Wills of Philadelphia County Manual, Chapter 2 of Blue Book. The Register may issue the letters testamentary on affidavit that someone died, provided that the death certificate is actually filed within a set period of time, subject to revocation of the letters testamentary if not timely filed. The foregoing is uncommon and presumably the affidavit would require counsel executing the affidavit to state something regarding the disposition of decedent. Consequently, the Courts of this Commonwealth have long recognized that under Pennsylvania’s probate system you cannot determine who is the executor or administrator and can act under the will until the party has duly qualified and has received his commission from the Register of Wills. Potentially the executor could not qualify. Hodge, supra.

The Orphans’ Court Division has mandatory jurisdiction over the control of the decedent's burial. 20 Pa. C.S. § 711(1). However, the Courts have not relied on this section of the statute on its own. See, In re Fontana, 72 Pa. D.&C.2d 287 (Allegheny County, Orphans' Court Division, 1975) (holding that the Orphans’ Court Division lacks subject matter jurisdiction to consider a dispute between brothers regarding the use of crypts in a mausoleum). Likewise, jurisdiction presumably includes disposition of the body via other means such as cremation, other than the granting of anatomical gifts of the body or parts of it which are governed by separate sections of the PEF.

The Courts have long held that a testator’s wishes regarding the disposal of his remains are entitled to respectful consideration, whether or not the decedent’s directions are followed. Pettigrew v.Pettigrew, 207 Pa. 313 (1904).

A review of the case law does not indicate any Superior Court decisions addressing a situation where a decedent provided for disposition of his remains in his will, including which cemetery/plot to use and if cremation was selected or not, which someone challenged in court prior to internment. The common law developed several factors in determining burial disputes, such as the desire of the testator in stipulating a specific burial location or method, requesting that his remains not be disturbed, requesting that no re-internment occur, requesting that burial occur in a specific religious method, etc… See, Florence E. Novelli and Lloyd E. Carroll v. Pamela Kay Carroll and Whitemarsh Memorial Park, 278 Pa.Super. 141 (1980). Indeed, in Novelli, the Court relied in part on Judge Cardozo (then sitting on the New York Court of Appeals) who established not a rule, but a process, to guide a court of equity to act in an equitable manner to protect someone’s grave while allowing for the possibility of the need of survivors to make decisions regarding the deceased. Novelli at 151 citing Judge Cardozo in Yome v. Gorman, 242 N.Y. 395, 403-05, 152 N.E. 126, 129 (1926).

In 1998 the Legislature codified the law on this subject. Thereafter, absent clear language in a will, or provision in a power of attorney granting an agent authority to make an anatomical gift of part or all of a body (20 Pa C.S. § 8611(a)), or waiver and agreement by those individuals entitled to make burial decisions, 20 Pa. C.S. § 305 governs who may direct the disposition of decedent’s remains. If a person died intestate or without a valid will, or valid anatomical grant (see, 20 Pa.C.S. § 305(a)), the surviving spouse has priority in deciding the disposition of the remains of their spouse, absent an allegation of enduring estrangement, incompetence, contrary intent or waiver and agreement which is proven by clear and convincing evidence. 20 Pa.C.S. § 305(b). If decedent did not leave a spouse, the next of kin shall have sole authority in all matters pertaining to the disposition of the remains of the decedent. 20 Pa. C.S. § 305(c).

The statute provides clear guidance on procedural aspects of obtaining a decision from the Orphans’ Court. An interested party desiring to block the disposition of decedent’s remains must file with the Clerk of Orphans’ Court an emergency petition within 48 hours of the death or discovery of the body of the decedent, whichever is later. Upon the filing of such a petition, the Orphans’ Court Division may order that no final disposition of the decedent's remains take place until a final determination is made on the petition. The Court then must hold a hearing to determine that “clear and convincing evidence establishes enduring estrangement, incompetence, contrary intent or waiver and agreement” and only then shall the court “enter an appropriate order regarding the final disposition which may include appointing an attorney in fact to arrange the final disposition, with reasonable costs chargeable to the estate.” See, 20 Pa. C.S. § 305(d)(1).

However, in those instances when “two or more persons with equal standing as next of kin disagree on disposition of the decedent's remains, the authority to dispose shall be determined by the court, with preference given to the person who had the closest relationship with the deceased.” See, 20 Pa. C.S. § 305(d)(2).

In order to minimize the filing of petitions without merit, the statute specifically authorizes the court to award attorney’s fees if the court makes a determination regarding when the petition is not supported by clear and convincing evidence, which if brought by an heir or beneficiary would be offset against their distribution from the estate. See, 20 Pa. C.S. § 305(d)(3).

The statute specifically authorizes the that court may require the filing of a bond, but the amount is not set. Whether the filing of the bond will be required concurrent to the filing of the petition, or perhaps only prior to the court issuing a decree enjoining the disposition of the remains of decedent is uncertain, and presumably each county can decide their own procedure in this regards.

While the codification would appear to simplify matters, case law on the subject continues to provide guidance in this matter. Indeed, Judge Herron recently provided some guidance on this matter and noted that Section 305 should be construed in light of the prior relevant precedent. See, Estate of Rose Weiss, Phila O.C. No. 1463 DE of 2009 (Judge Herron citing Kulp v. Kulp, 2007 Pa. Super. 70, 920 A.2d 867 (2007). Judge Herron examined the issue in depth and determined that courts should look to objective criteria, particularly when it is clear that each sibling loved and cared for their parent. Among objective criteria utilized was who the decedent chose as their agent for making health care and personal decisions. Judge Herron noted that “although the statutory language of Section 305 became effective in 1998, the recent appellate precedent of Kulp v. Kulp, 2007 Pa. Super. 70, 920 A.2d 867 (2007) emphasizes that the provisions of section 305 should be construed in light of the prior relevant precedent.”

In another court, the judge utilized the “closeness” test and received into evidence the emotional closeness of one interested party and the decedent, in terms of the number of telephone communications, among other factors. See also Estate of N.P., 22 Fid. Rep. 2d 473 (Berks Cty. O.C. 2002).

So, in Pennsylvania, if a relative who is the next of kin learns that decedent died, they can block probate of the will, engage in a will contest and obtain an order delaying the burial of decedent, just like what occurred to Mr. Hemsley. His unfortunate situation illustrates the importance of having detailed funeral, burial and related instructions in a will, power of attorney, trust and related documents, as well as the necessity of coordination between the agent under a power of attorney and proposed executor and other fiduciaries, the providers of medical services, and the funeral home. Relatives concerned about the funeral and burial arrangements of their next of kin need to inquire into the matter, and may have to engage in costly litigation at a time when they will be emotionally disturbed by the death of a loved relative.

Judge Cardozo, more than 90 years after his opinion in Yome, supra, remains correct in his statement that it ultimately rests with the court as a matter of equity to determine disputes about burial arrangements.

Fourth Circuit rules on Adam Walsh Act

Burton A. Rose, Esq. — Wed, 19 Dec 2012 16:13:57 -0500

UNITED STATES OF AMERICA, Appellant v. PATRICK CAPORALE, Appellee, No. 12-6832, 2012 WL 6052021(December 6, 2012) is a decision of the UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

This was an appeal from the United States District Court for the Eastern District of North Carolina. The government appealed the judgment of the district court directing that Patrick Caporale be freed from the custody of the Bureau of Prisons and granted supervised release. Caporale finished serving his prison sentence for child molestation in 2008, but he remained incarcerated while the government sought to have him declared a “sexually dangerous person” pursuant to the civil-commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C. § 4248.

A sexually dangerous person under the Walsh Act means one “who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” 18 U.S.C. § 4247(a)(5). A person is sexually dangerous to others insofar as he or she “suffers from a serious mental illness, abnormality, or disorder,” and, as a result, “would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” § 4247(a)(6). It was not disputed that, as evidenced by his several convictions, that Caporale satisfied the first, prior-conduct element of § 4247(a)(5) by having engaged in child molestation.

Following an evidentiary hearing, the district court ruled that, as a matter of law, the government had not proved that Caporale suffered from a serious mental illness, abnormality, or disorder. The court perceived in the alternative that even if Caporale were so afflicted, his commitment was not required because the government had also failed to sufficiently show that Caporale will experience serious difficulty in refraining from sexually violent conduct or child molestation if released.

The Court of Appeals disagreed and held that Caporale did suffer from a qualifying mental impairment. Nevertheless, the Court affirmed because the government fell short of carrying its burden to demonstrate a relative likelihood that Caporale would reoffend. The lower court properly credited a doctor’s testimony that Caporale possessed “sufficient volitional control to prevent him from having serious difficulty refraining from sexually violent conduct or child molestation in the future.”

Application of Relocation

James W. Cushing, Esq. — Thu, 20 Dec 2012 11:52:41 -0500

In January 2011 the Pennsylvania legislature passed a new custody statute, 23 Pa.C.S.A., Section 5337, which included reforming the procedures regarding custody relocation. Unfortunately for practitioners and litigants, although the new statute is long on specifics on the factors to consider when pursuing relocation, it is short on what is considered a “significant impairment” of custody due to the relocation and whether filing for relocation is a tacit admission that one’s matter is, in fact, a relocation matter. Fortunately, the recent case of C.M.K. v. K.E.M., 45 A.3d 417 (Pa.Super.2012) helps clarify these gray areas in the new custody statute.

Under the new custody statute, a parent must petition the court for permission to relocate before doing so, or suffer the risk of being sanctioned and being recalled from his/her new location if maintaining custody in the new location is denied by the court. What precisely defines “relocation” is unclear from the language of the statute. The statute vaguely defines “relocation” as something which “significantly impairs the ability of the non-relocating party to exercise custodial rights”; but what exactly is a significant impairment? Is a move 30 miles away a significant impairment? What if the 30 miles takes an hour to drive? What if the moving parent does not believe his/her move is a relocation? If s/he moves presuming his/her situation is not a relocation, but is wrong in that presumption, s/he may be sanctioned for making the move. Yet, if the parent’s presumption is correct, that his/her situation is not a relocation, but plays it safe and petitions to relocate anyway, is filing for the relocation a tacit concession that his/her attempt to move is a relocation?

In C.M.K., the child was six (6) years old and in the second grade. He enjoyed his school, had many friends, and was involved in multiple sports. In fact, the child was potentially a candidate for the gifted program at his school. The child’s Father enjoyed a thriving relationship with his son, having partial custody of him every other weekend and every Wednesday night. In addition, Father would attend many of the child’s sporting events, school activities, teacher/school meetings, and medical appointments. Furthermore, Father’s family, especially his parents, also had regular contact with the child. Father’s parents would have dinner with the child each week during Father’s Wednesday custodial time. Interestingly, the child’s Mother also had dinner with the child and Father’s parents every Monday night, as well as having used them for her baby sitting needs.

In petitioning for relocation, Mother argued that her proposed new residence was only sixty-eight (68) miles away, a distance not prohibitively far to drive. She further argued that the child’s new school was smaller, with potentially more individual focus, than his present school. Mother was also moving closer to her own family which she believed would benefit the child. Mother selected a three (3) bedroom mobile home on 2.5 acres of land to move to. Finally, as a way to help mitigate Father’s inconvenience, she offered him an approximately additional twenty (20) hours of custody time with the child which would enable Father not to lose any total custody hours due to her relocation.

In deciding this case, the Court made two significant rulings. The first was simply to clarify whether there is a procedural vulnerability for someone who elects to “play it safe” and petition for relocation, even if the petitioner did not believe his/her case to be a relocation matter. The Court made it abundantly clear that someone who files for relocation does not tacitly concede that the case is, in fact, a relocation case.

The Court also clarified how it determines whether a party’s custody is “significantly impaired” in order to warrant identifying a case as a relocation matter. If a move does not “significantly impair” a party’s custody, then the matter is not a relocation matter and proceeds like a typical custody matter. Further, the Court also provided insight into specifically how the ten (10) relocation factors from Section 5337(h) apply to a custody case once it is determined to be a relocation matter in order to justify and/or permit the relocation to go forward. The Court made it clear that simply the number of hours of custody is not the only element to the analysis. The Court looks at the quality of custody as well.

In C.M.K. the Court ruled that Father had a very integrated and involved parenting relationship with the child and Mother. Mother moving away such a distance would prevent Father from, as was his established practice, attending the child’s sporting events and school functions, and so on; it would also prevent Father’s parents, as was their long- established practice, from spending their customary time with the child. To put it simply, the Court believed that Mother’s proposed relocation would significantly impair Father’s established custody practices. Therefore, as the Court ruled that what Mother was proposing was a “significant impairment” of Father’s custody, the Court established Mother’s case to indeed be a relocation case.

Now established as a relocation matter, Mother had the burden to demonstrate that the relocation justified the “significant impairment” of Father’s custody per the ten (10) relocation factors from Section 5337(h). The Court simply did not believe that what Mother presented as her advantages in moving were sufficient to justify imposing a “significant impairment” on Father’s involvement with the child. The Court believed that causing the child to move away from, not just his Father’s involvement, but also the child’s sports teams, involved grandparents, friends, and potential gifted program, would be detrimental to the child and not outweighed by the alleged benefits of the move claimed by Mother. Indeed, the Court noted that Mother’s parents were not quite as integral to the child’s life as Father’s parents and Mother’s economic benefits for moving were speculative at best.

Therefore, in sum, this case has two lessons. First, filing for relocation is not a tacit concession that one’s move is in fact a relocation. Second, the Court looks at all aspects of a child’s custody and lifestyle when determining whether a relocation is beneficial for the child and is a “significant impairment” of the other party’s custody.

Amendments to Pennsylvania's Wiretap Act Give Law Enforcement Teeth

Brad V. Shuttleworth, Esq. — Tue, 20 Nov 2012 14:26:13 -0500

Law enforcement has always had to keep up with the use of technology in criminal activities, but sometimes it is the law that hampers its ability to keep pace with crafty criminals. One such example of technology that has outpaced law enforcement in criminal investigations is the use of modern mobile technology. New “smart phones” and communication technology has presented law enforcement with a host of new issues, including the fact that call history, text-messaging and social media can be important evidence in the investigation of crime. But, sometimes the law has handcuffed law enforcement’s ability to use evidence of intercepted communications in court and to track a suspect’s communications in furtherance of a criminal enterprise.

In an attempt to ensure the preservation of evidence and its admissibility in court, House Bill 2400 of 2012, signed into Pennsylvania law on October 25th, 2012 (effective 60 days thereafter), expands the ability of law enforcement officers and private individuals to intercept wire, electronic and oral communications under the Wiretapping and Electronic Surveillance Control Act (WESCA). The bill was first introduced in the spring of this year, and it suffered much wrangling through amendments because it dilutes many privacy rights in communications that Pennsylvanians have enjoyed for a long time. The final version of HB2400 is the result of an attempt to balance law enforcement’s needs with individuals’ rights to privacy in communications.

Some of the amendments to WESCA that expend the exceptions on the usual prohibition of interception and disclosure of communications include:

One-party consent to intercept a wire or oral communication involving suspected criminal activities where there is reasonable cause to believe that a party may resist with the use of weapons or is threatening suicide or harm to himself or others, and
Any victim, witness or licensed private detective may intercept the contents of a wire, electronic or oral communication if that person is under a reasonable suspicion that the intercepted party is committing, about to commit or has committed a crime of violence and there is reason to believe that evidence of the crime of violence may be obtained from the interception (crimes of violence are defined under WESCA).

HB 2400 also makes it a felony of the third degree to intentionally possess a telecommunication identification interception device. Importantly for law enforcement, it expands its ability to obtain a court order to intercept wire, electronic or oral communications with the aid of devices providing caller ID, deluxe caller ID or any other features available to ascertain the telephone number, location or subscriber information of a facility contacting the facility whose communications are to be intercepted.

What is most intriguing in the HB2400 amendments to WESCA is the ability of law enforcement to obtain court orders to track targets, and not just a specific telephone at a specific location. This “Target-Specific Orders” amendment, permits law enforcement to obtain an order to intercept communications from a specific target (or suspect) under certain circumstances. This will be particularly useful in situations where criminals are using throw-away phones to get law enforcement off their trail.

It will be interesting to see how much law enforcement uses WESCA in light of the HB2400 amendments. After all, in 2011, authorized interceptions were down nationwide, with just 13 authorized wiretaps in Philadelphia County. (Source: Forbes.com at http://www.forbes.com/sites/andygreenberg/2012/07/02/as-reports-of-wiretaps-drop-the-governments-real-surveillance-goes-unaccounted/ and United States Courts Wiretap Report 2011 at http://www.uscourts.gov/Statistics/WiretapReports/WiretapReport2011.aspx) Maybe the new law is just what the doctor ordered for police to get the job done in our age of fast-paced mobile technology. On the other side, criminal-defense lawyers need to be mindful to procure full and complete discovery in cases involving target-specific orders, because HB2400 places the burden on law enforcement to take proper steps in obtaining the order and to properly preserve evidence and documentation in carrying out the order.

To view the full text of HB2400 (final amendment at printer number 4083), click on the following link: http://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=HTM&sessYr=2011&sessInd=0&billBody=H&billTyp=B&billNbr=2400&pn=4083

The Month in Pennsylvania Workers' Compensation: October 2012 At-A-Glance

Mitchell I. Golding, Esq. — Tue, 20 Nov 2012 15:05:40 -0500

RETIREMENT/PLEADINGS/ PENALTY

An employer need not prove the availability of suitable work to obtain a suspension when the employer establishes, under the totality of the circumstances, that the claimant has voluntarily retired from the workforce.

Where a claimant accepts a retirement pension, that claimant is presumed to have voluntarily retired from the work force, and the employer is entitled to a suspension unless the claimant can show that he is seeking employment or that the work-related injury forced him to retire.

Here, the Claimant accepted a retirement pension meaning the burden shifted to Claimant to demonstrate that he is seeking employment or that his work-related injury forced him to retire. The Claimant testified that he was not seeking employment and although Claimant testified that he retired because of his work-related injury, the WCJ rejected this testimony as not credible.
The WCJ did not commit an error of law upon denying the Claimant’s Penalty Petition after the Employer failed to file a Petition for Suspension but rather unilaterally suspended the Claimant’s compensation after the Claimant signed a Special Attrition Plan, for receipt of a lump sum of $35,000.00 and that provided that the Claimant was not under duress, and was not disabled and also contained a general release of all claims against the Employer including disability pay and benefits.

This is because Claimant clearly had notice that a suspension was possible, and Claimant was given an opportunity to defend against it. Moreover, because Employer already ceased paying Claimant’s benefits, albeit improperly, and because Employer denied the material allegations of Claimant’s penalty petition, it was clear that Employer was seeking a continuation of that suspension.

Therefore, this was not a case where the WCJ sua sponte suspended Claimant’s benefits after the close of the record. Because strictness of pleadings is not required in workers’ compensation cases, and in the interest of judicial economy, the WCJ was empowered to take appropriate action based on the evidence presented.
Although the Employer technically violated the Act after it believed the Claimant had retired from the workforce, the Employer did not err by failing to assess a penalty. This is because the WCJ found that Claimant voluntarily retired from the work force and thus was not entitled to benefits after his retirement, the same basis upon which he suspended benefits. He further found that, although Employer violated the Act by failing to follow the proper procedures (i.e., because no supplemental agreement, final receipt, or order was obtained before payments ceased), no penalties could be computed because no benefits were due.
The law applicable to the finding that the WCJ was empowered to grant order the Suspension in the absence of the filing of a Petition for Suspension is well-established.

The rules governing pleadings in workers’ compensation cases do not mirror the Pennsylvania Rules of Civil Procedure and should be liberally construed. Furthermore, the court has never required absolute and unreasonable strictness in pleadings in workers’ compensation cases, and, if one party effectively puts the adverse party on notice as to the theory of relief which is sought, the WCJ will be authorized to grant the relief requested.

A WCJ is empowered under the Act to take appropriate action based upon the evidence presented and a claimant can be placed on notice of the relief sought during the proceedings.

The general rule in workers’ compensation is that if an employer wants to change the character of the claimant’s disability, the employer must file a petition specifically requesting the relief sought.

A WCJ has authority to suspend/terminate a claimant’s benefits in the absence of a formal petition where doing so would not be prejudicial to the claimant, i.e., the claimant is put on notice that a suspension/termination is possible and is given the opportunity to defend against it. Whether the claimant has adequate notice depends on the totality of the circumstances of a particular case. This includes the procedural history, the factual history, the nature of the claimant’s petition, and the nature of the employer’s response to the claimant’s petition.

Krushauskas v. WCAB (General Motors) No. 446 C.D. 2011 (Decision by Judge Leadbetter, October 11, 2012) 10/12

SUBROGATION

The Pennsylvania Supreme Court Holds that the Employer did not have the right to subrogation where it sought subrogation against the proceeds of a third party recovery that the Claimant received from SEPTA.
This is because the portion of Section 23 of Act 44, which provides that government shall “benefit from sovereign and official immunity from claims of subrogation or reimbursement from a claimant’s tort recovery,” bars any claim made by an employer for the recoupment of workers’ compensation benefits it paid
The right to subrogation and reimbursement has been described as absolute and Automatic and the General Assembly expanded this right with Section 25(b) of Act 44.

Sovereign immunity, however, is just as fundamental pursuant to Article I, Section 11 of the Pennsylvania Constitution, as only the General Assembly may waive the immunity of the Commonwealth upon duly enacted legislation.

In 1993 when the General Assembly was expanding the “absoluteness” of subrogation and reimbursement in workers’ compensation by reinstating the rights of all employers/insurers to seek workers’ compensation subrogation and reimbursement in cases involving the Motor Vehicle Financial Responsibility Law, it specifically provided for no “subrogation or reimbursement from a claimant’s tort recovery” in cases involving the Commonwealth or its political subdivisions with the enactment of Section 23 of Act 44.

Therefore the Assembly created the lone exception to comprehensive right of subrogation and reimbursement, by prohibiting it in tort cases involving the Commonwealth, its political subdivisions, and the agencies, officials, and employees thereof

FRAZIER v. WCAB((BAYADA NURSE) No. 56 EAP 2010 (Decision by Justice Baer , September 28, 2012)

Superior Court Enforces Plea Agreement

Burton A. Rose, Esq. — Tue, 20 Nov 2012 14:39:31 -0500

The Superior Court of Pennsylvania has issued an Opinion in the case of COMMONWEALTH of Pennsylvania, Appellant v. Lamar MEBANE, Appellee, 1254 WDA 2010, 2012 WL 5292817, 2012 PA Super 238 (Oct. 29, 2012), a Commonwealth appeal from a Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, CP–02–CR–0007063–2008. The case was before Judges BENDER, DONOHUE, andSTRASSBURGER. Judge Bender wrote the Opinion for the Panel.

The Commonwealth appealed from a judgment of sentence imposed on Appellee Lamar Mebane, contending that the trial court erred in finding that Mebane was entitled to enforcement of a plea bargain that had been offered and accepted but where the prosecutor attempted to renege prior to presentation of the agreement to the court. The Commonwealth also asserted that Mebane’s sentence was illegal as it did not conform to the applicable mandatory minimum sentencing provision.

Police arrested Mebane following a traffic stop and the Commonwealth ultimately charged him with possession with intent to deliver (cocaine), 35 Pa.C.S. § 780–113(a)(16) and related offenses. A pretrial suppression motion was under advisement by Judge Borkowski when the prosecutor extended a plea offer to Mebane’s attorney. The terms of the offer were that the Commonwealth would waive imposition of a mandatory sentence sur 42 Pa.C.S. § 7508 and Mebane would serve a term of 11 1/2–23 months’ incarceration. The offer was accepted by Mebane and the acceptance was communicated to the prosecutor by defense counsel.

At the time of the acceptance, neither party was aware of the court’s ruling on the suppression motion. At some point after the plea offer had been accepted, the prosecutor asked Judge Borkowski’s secretary if a ruling had been issued on the suppression motion and learned that the Judge had issued a ruling. The prosecutor took no action to inform defense counsel of either the existence or content of the ruling.

When the parties appeared together on the trial date, the prosecutor reneged on the plea agreement. The trial court determined that fundamental fairness entitled Mebane to the benefit of the bargain and accepted Mebane’s plea and sentenced him in accordance with the plea agreement.

The Commonwealth raised the following question for review: Whether the trial court erred in finding that Appellee was entitled to enforcement of an offered sentencing plea agreement, in contravention of the mandatory sentencing statute, where the prosecutor had initially made an offer to waive the mandatory in exchange for appellee’s plea, but the offer was withdrawn prior to presentation of the plea to the court?

The keystone of the Commonwealth’s argument was premised upon the proposition that a plea agreement does not exist until it is presented in open court so that Mebane had no right to enforcement of the plea offer made by the prosecutor since the plea agreement did not exist until it was presented in open court. The Commonwealth’s argument was rejected by the Panel because although Mebane does not have a right to specific enforcement of the agreement, that fact does not necessarily deprive the trial court of the discretion to enforce the plea agreement in circumstances where enforcement is in the interest of justice. The question of whether an agreement exists prior to its presentment in open court may be relevant to, but not necessarily dispositive of, the determination of whether enforcement is justified as a matter of judicial discretion rather than as a matter of right.

Here, there was a unique set of circumstances wherein the trial court determined that enforcement of the plea agreement was warranted in the interest of justice, as a matter of judicial discretion, and not as a matter of right to specific performance.The trial court acknowledged that a “defendant does not have a right to specific performance of executory agreements …” but, nonetheless, determined that the “unique circumstances of this case and fundamental fairness demanded a different result, …” leading the trial court to determine that enforcement of the terms of the plea agreement was in the interest of justice. Judge Borowski found that the prosecutor “vulpinely* used … information regarding the Trial Court’s ruling prior to its disclosure to defense counsel”, leading the defendant to proceed for a considerable period of time under the impression that he would be pleading guilty on the scheduled trial date under the agreed upon terms. These factual conclusions are adequately supported by the record and thus Judge Bender concluded that the trial court had acted in conformity with the general policy of maintaining the integrity of the plea bargain process when it determined that enforcement of the plea agreement was warranted in the unique circumstances of this case. In doing so, the trial court did not abuse its discretion nor commit an error of law.

Furthermore, part and parcel of the Commonwealth’s broad discretion to invoke a mandatory sentence is the discretion to refrain from invoking the mandatory minimum, a function of the Commonwealth’s discretion often employed in the course of plea negotiations with criminal defendants. Indeed, a sentencing court has no discretion or authority to apply a mandatory minimum sentence when the Commonwealth did not give notice of intent to proceed under the applicable mandatory sentencing provision. The prosecutor is truly the gatekeeper in determining whether a mandatory minimum sentence must be applied by a sentencing court.

In this case, however, the lower court determined that enforcement of the terms of the plea agreement included enforcement of the prosecutor’s promise not to seek invocation of a mandatory minimum sentence. Indeed, the promise not to invoke the mandatory minimum was the agreement’s condicio sine qua non.* Mebane agreed to plead guilty, obviating the risk to the Commonwealth that he would be acquitted at a trial, and in return, the Commonwealth agreed to refrain from invoking the mandatory sentence. Enforcement of the plea agreement without enforcement of the promise not to invoke the mandatory sentence would constitute a windfall for the Commonwealth at Mebane’s expense.

The Commonwealth indisputably had the authority to refuse to invoke the mandatory minimum in exchange for Mebane’s guilty plea. The lower court did not abuse its discretion when it chose to enforce that agreement despite the Commonwealth’s attempt to renege. Because the plea agreement included a waiver of the Commonwealth’s right to invoke the mandatory minimum, the Commonwealth’s claim that the sentence imposed was illegal was without merit. Therefore, the sentence was affirmed (without dissent).

Fred G. Rabner, Esq. of Allegheny County represented the Appellee.

Google Owns That?

Daniel J. Siegel, Esq. — Tue, 20 Nov 2012 14:39:55 -0500

As the author of the upcoming book, Android Apps in One Hour for Lawyers, I receive numerous questions about which apps lawyers should use, and how to get the most out of their smartphones and tablets. But what always surprises me is the number of people who don’t realize that the Android operating system, which powers their smartphones, their Kindle HD, and many of their tablets and other devices, was created by Google. Nor do they realize that 75 percent of all smartphones shipped in the third quarter of 2012 (that’s 131 million devices) used the Android operating system.

Clearly, Android is here to stay.

And so is Google.

The difference is that most people still think that Google is just a website you go to in order to search for information, and that Android is just a cute name for how their phones work. They are far more. The company is mammoth, and the its reach goes beyond its ubiquitous search engine, although you cannot ignore the fact that Google owns 23 of the top 100 websites (to be fair, many are foreign language/country-specific search engine websites). Plus, Google keeps growing, as does the number of websites and services the company offers.

While you may have heard about Google Docs, the company’s online way of creating, storing and collaborating on documents, spreadsheets and other files, you probably did not know about all of Google’s other sites and services, or the many aspects of the Android operating system. In this article, I will highlight a few you may not have heard about, but that may make your life a bit easier.

• Google Earth (http://www.google.com/earth/index.html) – Want to find a place on the globe? Want to view the earth from a satellite, or look at galaxies far away? What I find more interesting are the Showcase and Gallery sections of the website. The Showcase section lets you view from videos to images of almost everything. For example, you can look at “Historical Imagery,” which lets you go back in time without Michael J. Fox and a Delorean. You can pick a location and a date, and see what a famous city, or your old neighborhood, looked like way back when. Or, go to the Gallery and virtually export the Earth, viewing hundreds of maps, ranging from historical topographic maps to images taken from space. All on your home computer.

• Google Chrome (www.google.com/chrome) – People love it or hate it, but regardless, Google’s web browser, the software program you use to see the Internet on computers, phones and tablets, is here to stay. Plus, as of May 2012, Chrome is the most-used web browser in the world. Thus, Google has conquered the search engine world and won, and now its browser (the conduit to its search engine) has conquered Internet Explorer and Firefox, the previous market leaders. Users like its sleek design and its ability to load web pages quickly. As a result, if you haven’t yet tried Chrome, give it a shot.

• Google Finance (www.google.com/finance) – Most people do not think of Google when they think about finance websites, but that is a mistake. Google Finance is a, well-organized and easy-to-navigate website that provides a wealth of information about everything financial. Obviously, it provides real-time stock quotes and charts, financial news, currency conversions, and the ability to track your portfolio. But it also has a stock screener (right now, there’s surprisingly no mutual fund screener), and can help you make investing decisions. It’s not Morningstar, but if you don’t need as many bells and whistles, this site is the answer.

• Google Goggles (http://www.google.com/mobile/goggles/) – When a former associate told me about this app, I was in disbelief, and then I tried it. I took my phone, took a picture of an obscure painting on the wall of the reception area of my office and in about ten seconds it gave me the name of the painting and the artist who painted it, as well as the location where I could find it. It was amazing. But it works, and boy does it end debates quickly? According to Google, you can “Search by taking a picture: point your mobile phone camera at a painting, a famous landmark, a barcode or QR code, a product, a storefront, or a popular image. If Goggles finds it in its database, it will provide you with useful information.” If that is not enough, “Goggles can read text in English, French, Italian, German, Spanish, Portuguese, Russian, and Turkish, and translate it into other languages.” Other than that, it is pretty passé.

• Google Maps (http://maps.google.com/) – Another popular site is Google Maps, whether you access it on your computer or on your mobile device. It’s fast, it’s accurate, and it has helped to make stand-alone GPS units almost obsolete. But if you really want to see how good the site is, all you have to do is recall the fiasco that Apple created when it replaced Google Maps on the iPhone 5 (Apple’s iOS 6) with its new mapping software – and the complaints and problems were so significant that, according to Forbes, they led to the departure Scott Forstall, senior vice president of iPhone Software at Apple, who was once considered an heir apparent to Steve Jobs.

• Google Play (http://play.google.com) – For books, magazines, movies, TV shows, and much more for your Android device or phone, turn to Google Play. It is not just a website to get apps for your Android devices. In fact, you can store your entire music collection (or up to 20,000 songs from it), and then listen to your heart’s content anywhere you are connected to the Internet. It’s hard to believe how much material this site offers, but when realize that it had downloaded 25 billion items as of September 2012, you quickly realize just what a behemoth this site is.

• Google Reader (http://www.google.com/reader) – One of the best Google websites, the Reader is the place where you can read tons of magazines, blogs, news feeds and just about everything else – for free! That’s right, no matter what the subject, there’s probably a feed here for you. The biggest problem you’ll run into, almost certainly, is that when you first start subscribing you actually think you’re going to read everything you selected. But then, when you return and find all the sports, all the news, all the politics, all the law, and all of everything else, you realize that you can’t possibly read everything, let alone most of the things you selected. So go slowly, pick one or two feeds, see what you can handle, and then jump in further.

• YouTube (http://www.youtube.com) – If you did not know, Google owns YouTube, the popular video sharing website, then guess what, it does. And YouTube’s popularity is astounding. According to the site, more than 800 million unique users visit YouTube each month, and they watch over 4 billion hours of video watched each month. Consider that 72 hours of video are uploaded to YouTube every minute, and that in 2011, YouTube had more than 1 trillion views. That is 140 views for every person on Earth. That’s a lot of video, and Google owns it.

In conclusion, when you are surfing the web, or using your smartphone, remember that you are almost certainly being tracked by Google, using Google’s search engine, running Android and visiting websites owned by Google.

No I.D.? No Problem - Judge Blocks Pennsylvania Voter I.D. Law

Theodore Y. Choi, Esq. — Thu, 25 Oct 2012 11:12:47 -0400

With the presidential election just a few weeks away, the upheaval in Pennsylvania over what voters must take with them to the polls has sparked a series of battles which is likely to continue. Temporarily however, it seems that opponents of the photo I.D. law have garnered much success.

The new law, codified at 25 P.S. §§ 2602, 2626, 3050 and otherwise known as Act 18, signed in March 2012 by Governor Tom Corbett in order to set a "simple and clear standard to protect the integrity of our elections," mandates that potential voters furnish a standard government issued identification card in order to be able to cast a vote, has been a continual subject of political controversy especially in the wake of the upcoming presidential election.

The proposed law requires that "[a]t every primary and election each elector who appears to vote and who desires to vote shall first present to an election officer proof of identification. The election officer shall examine the proof of identification presented by the elector and sign an affidavit stating that this has been done." 25 P.S. § 3050. Citizens voting in-person on Election Day must present one of several specified forms of photo identification. This proof of identification must include the name of the individual, a photograph of the individual, and an expiration date that has not passed. 25 P.S. § 2602.

Several individuals and organizations ("Petitioners") sought to enjoin the Commonwealth of Pennsylvania, Governor Thomas W. Corbett, the Secretary of the Commonwealth Carol Aichele, and their agents, servants, and officers from enforcing or otherwise implementing Act 18 and filed a request for preliminary injunctive relief with the Commonwealth Court of Pennsylvania for that purpose. In this case, initially docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 3332376 (Pa. Commw. Ct. 2012), Petitioners alleged that Act 18 and the photo identification requirement under the same violated the Pennsylvania Constitution on three (3) grounds:

Act 18 unduly burdens the fundamental right to vote in violation of Article I, Section 5 of the Pennsylvania Constitution which states, in pertinent part, "Elections shall be free and equal…" PA. CONST. art. I, § 5.
Act 18 imposes burdens on the right to vote that do not bear upon all voters equally under similar circumstances in violation of the equal protection guarantees of Article I, Section 1 and 26 of the Pennsylvania Constitution.
Act 18 imposes an additional qualification on the right to vote in violation of Article VII, Section 1 of the Pennsylvania Constitution.

As the Petitioners did not possess a valid form of identification as required under Act 18, they argued that the new law would serve to cause them to be disenfranchised and/or severely burdened to comply with a new requirement. The Commonwealth Court analyzed Act 18 under a standard that "weigh[ed] the asserted injury to the right to vote against the precise interests put forward by the State as justifications for the burden imposed by its rule." Crawford v. Marion County Election Board, 553 U.S. 181 (2008). The burden "however slight … must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation." Crawford, 553 U.S. at 191. Rather than apply a strict scrutiny standard in its analysis, the Commonwealth Court adopted the standard announced in Anderson v. Celebrezze, 103 S.Ct. 1564 (1983), and applied the "flexible standard" in their analysis. Utilizing this standard, the Commonwealth Court found that the requirement of Act 18 is a "reasonable, nondiscriminatory, non-severe burden when viewed in the broader context of the widespread use of photo ID in daily life. The Commonwealth's asserted interest in protecting public confidence in elections is a relevant and legitimate state interest sufficiently weighty to justify the burden." Thus, the preliminary injunction was denied. However, the Commonwealth Court noted that if strict scrutiny were to apply, they may have reached a different conclusion.

Upon appeal of the Commonwealth Court's decision, the Supreme Court of Pennsylvania held that the Commonwealth Court erred by not conducting an assessment of availability of alternative photo identification cards prior to ruling on the preliminary injunction request seeking to delay the implementation of Act 18 stating that "the Commonwealth Court has made a predictive judgment that the Commonwealth's efforts to educating the voting public, coupled with the remedial efforts being made to compensate for the constraints on the issuance of a PennDOT identification card, will ultimately be sufficient to forestall the possibility of disenfranchisement. This judgment runs through the Commonwealth Court's opinion, touching on all material elements of the legal analysis by which the court determined that Appellants are not entitled to the relief they seek." This case is docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 4075899 (Pa. Sept. 18, 2012). The Supreme Court's ruling remanded the matter to Commonwealth Court to make a decision by October 2, 2012, and make a present assessment of the actual availability of the alternate identification cards, directing the Commonwealth Court to conduct an analysis of whether the procedures used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards. Applying this analysis, the Supreme Court stated that if the Commonwealth Court found that the law would not result in voter disenfranchisement, the court would be obliged to enter a preliminary injunction.

After hearing two (2) days of testimony, on October 2, 2012, Pennsylvania Commonwealth Court Judge Robert Simpson ruled that state officials can ask for photo I.D. at the polls but cannot restrain those who do not possess identification from voting as the underlying offending conduct is not the request to produce photo I.D. but rather one of voter disenfranchisement.

In his ruling, docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 4497211 (Pa. Commw. Ct. October 2, 2012), Judge Simpson granted a preliminary injunction that temporarily halts enforcement of the law until after the November 6, 2012, presidential election citing the disqualification of eligible voters as the reason: "Consequently, I am not still convinced in my predictive judgment that there will be no voter disenfranchisement arising out of the Commonwealth's implementation of a voter identification requirement for purposes of the upcoming election. Under these circumstances, I am obliged to enter a preliminary injunction." Despite a rise in the number of state issued photo identifications, the number was not significant enough to convince Judge Simpson that potential eligible voters would be prevented from voting if the new law were implemented. Even with the streamlined procedures outlined by the new law to allow voters without I.D. cards to obtain them, Judge Simpson stated, "I expected more photo ID's to have been issued by this time. For this reason, I accept Petitioners' argument that in the remaining five weeks before the general election, the gap between the photo IDs issued and the estimated need will not be closed."

The result? Judge Simpson's ruling means that: (1) the same policy that was in effect during the state's primary earlier this year will continue to be in effect for the upcoming presidential election. Voters, regardless of compliance with the law, will be able to have their vote count in the 2012 presidential election; (2) those who cast provisional ballots will not be required to return to their county election board within six days of the election to show proof of identification in order to have their vote count.

Although the new law may not be in effect in Pennsylvania for the upcoming November 2012 presidential election, this does not mean to say that it will never be implemented in future elections. Judge Simpson's ruling did not strike down the entire law as being unconstitutional. In fact, he rejected efforts from those challenging the law to prevent state officials from educating voters about the Voter I.D. requirement. Challengers to the law have also conceded that the part of the law which requires proof of identification for absentee voting does not harm would-be voters and may be implemented.

Judge Simpson's ruling is surely to invoke an appeal. It waits to be seen whether future elections will be affected, but for now, at least temporarily, eligible voters can rest assured that they will be able to vote without fear of being turned away at the polls.