Category Archives: Blog and FAQ

Will she be better off taking a plea deal?

Q: My 12-year-old has a public defender. She is accused of felony indecent sexual assault and misdemeanor indecent assault against a 12-year-old peer. We believe it was consensual and the girl has “buyer’s remorse”. I would like to plead not guilty. She can plead to the misdemeanor, I don’t accept that. What do you think would be best? (Cranberry Township, PA)

Q: These cases require a great deal of preparation and attention. The penalties are drastic and unfair. Jail is unlikely but sexual offender registration could be, which is oppressive. I had a similar case between teenagers. We were in the middle of trial and because the judge sensed that it was consensual, the judge brokered a consent decree with no admission of guilt for my client. This seemed fair to me as it would help avoid any Megan’s law (SORA at the time) compliance or registration and a criminal/juvenile record. However, every fact pattern is different. You have an entirely different prosecutor and Judge. I am not sure what options are available to your child. Talk with her public defender and gauge how involved they are and how interested they are in defending your daughter. If you are not comfortable, you can always hire a private attorney.

Can I beat this?

Q: I was pulled over for out registration and police call tow truck driver for a tow. Police officer said he would take inventory of car so I could grab what I need but never did because he also was responding to a disable tractor trailer. I asked him to grab my girlfriend’s wallet. The cop goes into car lifts the center console and grabs it but I never got it. Tow truck pulls up. Tow driver was about to load car then. He opens driver side door reaches in. Then flags down officer and walks him over to say that there was a bag of marijuana on the floor. I am getting charged. (Pittsburgh, PA)

A: You have a Fourth Amendment right against illegal searches. However, here it sounds like a tow truck driver alleges to have found the marijuana while performing his job and in in plain view. If the tow truck driver had a legitimate reason to be in the car and the marijuana is in plain view, you will have no Fourth Amendment protection. If that is what the tow truck driver will testify to, you may have a problem. The marijuana belongs to either you, your girlfriend or was planted by the cop or tow truck driver. The latter two are unlikely and hard to prove. The tow truck driver is a necessary witness. If you want to fight this, I would hire a lawyer for the preliminary hearing to make sure the tow truck driver appears and to cross examine him on the details. If this is a small amount of marijuana and you have no record, you may be able to get out of this with no conviction with the guidance of a good attorney.

How do I take action against a neighbor for dangerous trees?

Q: My neighbor has 3-4 very large trees overhanging my rooftop and backyard as well as the neighbors on the opposite side. Last June (2016) a 30-40 foot, branch has broken and is now hung up over her and my property. After 11 months and 5 iterations of her “looking into it” she has stated she will do nothing. The branch as well as other branches if knocked down will cause direct harm to my property, dogs, and even my children. At this point I feel like legal action may be necessary to have her properly maintain this tree as well as the other trees in bad shape. All the details have been photographed, 4-5 neighbors have also commented on the trees, and my home owner’s insurance has noted on file in case of damage. Anyone have advice on what to do? (Pittsburgh, PA)

A: Normally, the municipality that you reside in, whether it is Pittsburgh or a suburb, will have an ordinance on in their code which addresses the excessive growth of trees which trespass on to a neighboring property. Call your local zoning enforcement officer. It should result at a minimum in them coming out to assess the situation to determine if your neighbor should be cited.

Is it elderly abuse when your mother-in -law sleeps in her car?

Q: My mother in law won’t live in my home due to her and I not getting along. She had her own place once and then she lost it. She has no job to support herself. She stayed with us for a while and then she blew up on us. She was told to leave by my husband. Now she is parking her car in my back yard and she is staying in there. She will come into the house and use the bathroom and then leave. I do not talk to her much due to issues we have had in the past. There is also a homeless shelter that she qualifies for that will help her find work gives her a place to sleep and three meals a day. She doesn’t want to go there. I’m lost at what I can do personally without causing a major blow up between all of us. Plus, I only have a two-bed room home with two boys and me and dad. Please give us advice. (Scott Twp., PA)

A: Based on what you are saying, it seems like no one is abusing her and her predicament is self-inflicted. If she is mentally competent, she can choose to live in a car or under a bridge. If you feel that she is mentally incompetent or has serious mental health issues, you may want to call adult protective services or mental health services. They may come out and talk to her and assess her ability to care for herself.

Will I get jail time for first-time probation violation?

Q: I was in subway with friend and they got into a fight. I was pulled in middle of situation but, didn’t have anything to do with me. We both were arrested. Now I go to court. I didn’t start anything just defended myself. (Castle Shannon, PA)

A: You need to inform your probation officer. Normally, he or she will wait until the preliminary hearing and see if your case is held for court or not, before he or she will file for a violation. Your goal is to get your case dismissed or at the most pleaded down to a summary conviction at the preliminary hearing. If it is dismissed, you may not face a probation violation. If you end up pleading to, or being found guilty of, a summary Disorderly Conduct, the PO may or may not file for a violation given that a summary conviction on probation is considered a technical violation of probation. I would get a lawyer for the preliminary hearing. A lot of times, victims in these situations do not show for court.

Small claims court for landlord dispute?

Q: We moved out of our apartment 2 weeks ago and I contacted my landlord to ask about getting the deposit back. She informs me we have a flea infestation and will be withholding at least some of our very expensive deposit. We were shocked because at first, this may sound plausible because we do have a cat and a dog. However, all our pets have been on flea meds forever. I have inspected them and our vets have inspected them and they do not have fleas. They never have. Nor have I ever seen a single flea or gotten a bite. As far as I am concerned this is a total lie. Do I have a case for small claims court or is this a losing battle? I am a poor graduate student and I feel like I am just getting taken advantage of. We have been model tenets and were anal about cleaning the apartment when we left. Thank you. (Plum Borough, PA)

A: Generally, a landlord has thirty (30) days to return a security deposit to a tenant after vacancy. Proof is always an issue in these cases. My suggestion is to send the landlord a written demand via regular mail and certified mail, return receipt, (green card), in which you request your security deposit to be returned and provide your new forwarding arrest. You can state in the letter the date upon which you vacated the premise. The burden would then be on the landlord to either pay you or provide written reasons why she is not. If you feel her reasons are not genuine, you can file a complaint for return of the security deposit plus costs at the local District Justice. If you win the landlord is subject to paying you damages above and beyond your deposit and costs. I would have your veterinarian documents prepared for court. If the landlord is represented by counsel, you may want to have one as well.

Does a will have to be notarized to be valid? Multiple wills?

Q: My dad wrote a will leaving his entire estate to me and my brothers several years ago. Since then he remarried. I’m not sure if he wrote another will or not. I’m just curious if the will he gave us is valid since it isn’t notarized and what happens if he wrote another will leaving everything to his wife acting as if that was the only will to exist. Would the latest one be the valid one? Would it come down to an ugly court battle if something ever happened to him?

A: A will does not have to be notarized to be admitted into probate, however, it makes the probate process easier. It is likely that the witnesses to the will, will need to appear in court to attest they witnessed the will, or provide an affidavit to the effect. Normally, the new will is the one in effect as the new will presumably preempts the prior wills. Most wills have language which states that all prior wills are revoked.

Will I go to jail for a first offense misdemeanor?

 

Q: I walked on train tracks and Port Authority police were called because I was told to get off due to a trolley coming. I got off but got back on after it passed. I was depressed and confused. They told me I wasn’t getting charged, until I got papers in the mail and found out. I’m 18 and people are scaring me saying I might be put in jail for this. It is considered defiant trespass. I was a bad juvenile when I was younger with a record but this is the first thing I’ve gotten charged with at 18. Do you think it’s likely I’ll be put in jail? I went to talk to a psychiatrist at a hospital that night because I knew that’s what I needed. I’m just worried because Port Authority is serious and has good lawyers. (Pittsburgh, PA)

A: One cannot be convicted of “Defiant Trespass” unless there is prior notice to the defendant such as a previous verbal warning or posting of a sign. This should not be a jail case if defended properly, which will be accomplished better with legal representation. If you were my client, my goal would be to get you out of this with no conviction. It would require you to get a mental health evaluation and follow any recommended treatment before your court date.

Can a POA file eviction papers?

Q: My sister owns her home. She invited her son and his son to live with her. Since that time, she entered a nursing home. Her daughter was given POA. Her son has been selling her items out of the house and damaging the property. The house had to be listed for sale when she entered the nursing home, for financial reasons. The son was supposed to move out within one week of her transition to the facility. However, he refuses to leave and refuses to let his sister, the POA, in to the house to take care of their mother’s belongings. We understand he will have to be legally evicted. Can the POA file the eviction papers for her? And can the utilities legally be turned off since he has no means to pay the bills which are in her name. And she has no funds coming to her as it goes to the facility? (Edgewood)

A: It depends if the Power of Attorney document authorizes the daughter to do the things you mention. If it is a well-drafted General Durable Power of Attorney, it likely will have a panoply of powers and she will likely be authorized to do what you express needs to be done. The document may state something to the effect, of “handling real estate matters”, which should suffice. If she is so authorized, she needs to act promptly to prevent damage to the house or theft of property from your sister. She can take the POA to the local District Justice and file an eviction complaint for possession. She can also contact the utility companies. They will require the POA to be faxed to them but she should be able to control the utilities. You may also want to involve the police.

Can I get in trouble if I received child support for a child in CYF?

Q: My child was taken out of my care and placed with her grandmother on some fake allegations by my ex. I’m still receiving child support for said child. Can I get in trouble if I take the money? (Pittsburgh, PA)

A: If this child is dependent and CYF is paying this caretaker, then the child support should go to the county and not you. I would need more details, but I think it is possible you can be ordered to pay this back after the county attorneys get involved. Normally, if a child is in a paid placement, the parents can be sued by the county for support. I would call the Family Division or visit them and get behind this early.