Category Archives: Blog and FAQ

Can I be charged two times for the same misdemeanor?

Q: I had a detainer for my probation. I got arrested. I paid my fines and they let me out. My probation officer told me that the case was closed. I got stopped by police and they arrested me for a warrant but it’s the same docket number. It is the same case. I told the police that and they told me to tell it to the judge. What should I do? (Beechview, Pgh., PA)

A: I am not sure what happened to you and would need to look at the docket and paperwork before reaching any conclusions. However, you can be arrested twice for the same offense but never prosecuted and convicted of the same offense. Mistakes happen and sometimes people are picked up on warrants that have been cleared or quashed. However, if charges are filed on an incident which you have already been adjudicated on (found guilty or dismissed by a court, after a hearing) that constitutes double jeopardy under PA Rule of Criminal Procedure 109 and 110.

Can my mom sell the house if dad’s name is still on it, but they divorced?

Q: My parents bought the house in 1977 and divorced about 10 years ago. Mom’s name was never removed from deed and dad passed away 4 months ago with no will. I am the only child and am ok with my mom selling the house. The deed doesn’t state anything about survivorship or tenants in common. (Pittsburgh, PA)

A: If there is no written divorce settlement agreement that address how the house is to be distributed, upon the divorce decree, it changes from husband and wife tenants by the entirety’s property, to tenants in common property. As tenants in common, they each own a divisible equal share. This means your father’s share passed into his estate and will be inherited by the heirs he named in his will or if he had no will by his intestate heirs. If he did not remarry, then his intestate share of the house would pass to his child or children in equal shares. Your mother can only sell her 50% share. If you and your siblings if you have any, wish to sell you can sell if you wish. If you do inherit one half, you need to pay inheritance tax and should speak with a lawyer. I would check your mother’s records and if not check their divorce file with the Allegheny County Department of Court Records.

Can a person acting as POA remove a beneficiary from policies?

Q: My sister will NOT talk to me and behind my back put my mom in a nursing home. My sister went got POA health and financial from my mom. Now she wants me to pay half of all debts. My mom told me she put me and my sister as beneficiaries on her life insurance policies. Now that my sister is POA can she remove me as beneficiaries from those polices and not tell me? (Jefferson Hills, PA)

A: Under the new enactments to the Power of Attorney statute, effective January 1, 2015, an Agent can only change beneficiaries on a life insurance policy if specifically granted that power in the “Powers” section of the Power of Attorney document. Under the prior Power of Attorney Act, effective in the year 2000, an Agent may be able to do this if there is similar language giving such authority. Your question depends on when the document was signed and how it was drafted. You should get a copy and consult with a lawyer.

Can home be titled “with a right to survivorship” if in unequal shares?

Q: My boyfriend and I are buying a home together. We wish to own the home in unequal shares, since most of the money being used for the purchase belongs to him. Is there a way to title the property so that if he passes away, his share of the home will go to me and vice versa? His share is 70% and mine 30%. We are buying the home outright with cash, but since we have children together he wants to be sure that if one of us dies, the deceased shares will pass on to the other person on the deed. The attorney we spoke with said this “can’t be done”, that we would instead have to create Wills and leave each other our respective shares in the property, and that the titled would have to be held as “tenants in common”. (Mt. Lebanon, PA)

A: No, joint tenants cannot hold uneven shares. The idea with joint tenancy is the when one tenant passes, the survivor owns the whole share. Tenants-in-common can own uneven shares because when one dies, his or her share passes into his or her estate. Your options are to be tenants in common on the deed or have wills drafted that address the disposition of the property.

If we have children can we be considered common law married in PA?

Q: We own a home together and have been on each other’s health and life insurance policies. His friends and coworkers believe we are married, as I wear a ring and he refers to me in public “as his wife”. We never got married because I was married previously and had to pay my loser ex-husband spousal support, as he made less money than I. I didn’t want to get stuck in the same boat again. (Pittsburgh, PA)

A: Common law marriage was abolished on January 2, 2005 in PA. However, if you were in such a domestic relationship before this date, you can establish a common law marriage in court, depending on the facts. You would have the burden of proof and it is very difficult to do. You may want to propose to him and get it over with.

How much time for Intent to Possess of a Controlled Substance with a record?

Q: I was sitting in the car all night getting high and I woke up to the police knocking on the window. I opened the door and I had drugs laying on my shirt. (Union City, PA)

A: This is difficult to give a reasonably accurate answer without more information. Generally, the courts sentence according to the sentencing guidelines which are a complex matrix of numbers. The two key factors in the guidelines are the Offense Gravity Score (OGS) which is a number assigned to each offense based on how serious it is, and the Prior Records Score (PRS) which is a number based on the individual’s prior records score. The OGS for Possession of a Controlled Substance will be low as it is an ungraded misdemeanor, but the unknown factor here is the OGS. In larger counties like Allegheny and Philadelphia, possession of a controlled substance usually results in probation. However, in smaller counties, a jail sentence is possible, even for possession of marijuana. Ask your private or public lawyer, they will know.

What do I do? A detective shows up at my door harassing me?

Q: A certain detective came to my house and pounded on the door until I came out. He talked about me being in a certain place and kept saying I knew why he was there and “don’t bullshit me!” I told him to get a warrant and get off my property. (Pittsburgh, PA)

A: It may mean that he has no evidence, or not enough evidence and by getting you supply the details, he will have enough evidence to arrest and maybe convict you. For example, if you say something like, “yeah, I was there, but I didn’t do anything”, that puts you at the scene which he may have not known or can only establish through some sketchy witness. Now, you have admitted to being at the scene, and he has enough to arrest you. So, the advice of most attorneys would be to say nothing and hire an attorney. You have a 5th Amendment right to not incriminate yourself.

I have a civil hearing tomorrow at the local magistrates

Q: Can I go to jail because I cannot take off work to go to a civil hearing at a magistrate? I’m being taken to court by a creditor (credit card company)? (White Oak, PA)

A: The short answer is no. Generally, civil court has no jurisdiction to incarcerate people. Only in rare circumstances such as when a person is found in contempt or in family court matters involving failure to pay child support. What will happen is that since you do not appear, and have made no effort to continue the case, a hearing will go forward without you and you will be found guilty in absentia. The creditor will ask for and receive the judgment, any interest owed, plus costs and lawyers fee. You might want to call the creditor and the judge and ask for a continuance.

Can they take child if marijuana in her system?

Q: Since it’s 2018 and marijuana is legalized in most States as recreational and medical, will they still take the child if she is born with marijuana in their system? I am asking for a friend. (Forest Hills, PA)

A: Marijuana is still illegal in PA. CYF can remove a child with drugs in her system at birth, especially where there are other signs of parental abuse or neglect. I think the issue is more complicated and not so black and white if the mother has a medical marijuana card, but CYF can still remove. I would suggest that your friend obtain a parent advocate attorney.

Can an emergency PFA prevent me from seeing my son?

Q: After an argument my boyfriend, he had me arrested and then filed a PFA that included my son. My son was in no way involved in the argument until I was told to leave the house and wanted to take him with me. (Pittsburgh, PA)

A: I am not sure of all the facts here, like is this child both of yours, is the house your boyfriend’s or yours, etc.? Regardless, if the PFA has been filed but no hearing has been held yet, you should defend it at the time of the hearing. There is not much you can do while the Emergency PFA Order is in effect. At the final hearing, a judge can grant the petition, deny the petition or find it does not apply to your son if granted. Additionally, most PFA’s are settled by agreement. Perhaps you can settle it in a way that the PFA does not apply to your son. If you want to see your son pending the emergency PFA order, talk to an attorney about filing an emergency motion for custody pending PFA hearing.