Category Archives: Uncategorized

Has the cane sword law changed in PA?

Q: I have been ordered to use a cane by my Doctor. I walk a lot to get where I need to go. It is a horrible neighborhood. Can I walk with a sword cane? (Braddock, PA)

A: I have no idea what a sword cane is. Was it from the 60’s television series, “Wild, Wild, West”? Regardless, if it has a sharp edge that can be used as a weapon, it may be considered a Prohibited Offensive Weapon under section 908 of the PA Crimes Code. I don’t think it is such a good idea. Ask your local police department.

Has the cane sword law changed in PA?

Q: I have been ordered to use a cane by my Doctor. I walk a lot to get where I need to go. It is a horrible neighborhood. Can I walk with a sword cane? (Braddock, PA)

A: I have no idea what a sword cane is. Was it from the 60’s television series, “Wild, Wild, West”? Regardless, if it has a sharp edge that can be used as a weapon, it may be considered a Prohibited Offensive Weapon under section 908 of the PA Crimes Code. I don’t think it is such a good idea. Ask your local police department.

12 Felony charges, what will happen?

Q: My sister has been charged with 12 felony theft charges, totaling under $4000. She has no prior record, had a job and is involved in the community. Is she eligible for an ARD? (Pittsburgh, PA)

A: Acceptance in to the ARD program is discretionary with the County DA. With no prior record, she has a chance. The only things which may prevent her would be the amount of money $4000 and if the victim was elderly, mentally infirm or if your sister was in a fiduciary position to the victim. Also, the victim must consent to your sister receiving ARD. If it is just based on the money, I have had clients owe more and receive ARD. However, the restitution must be paid during the ARD probation or the ARD offer is rescinded. Tell her to start saving.

Can either plaintiff or defendant contact either party after PFA?

Q: I am the plaintiff and a minor. The defendant is also a minor. I got a PFA on him and it’s set to expire May 31, 2019. I wasn’t sure about the regulations for after it expires. After May 31, 2019 can either party contact the other without it being illegal or in need of filing an ICC? (Pittsburgh, PA)

A: If the PFA Order has expired, either party can contact the other. If the defendant commences harassment or unwanted contact, you can always file again.

5 DUI’s in 10. Can I get a license?

Q: I had 5 DUI’s over a period of 10years and served my time. I have been clean for over 4 years. Can I get my licenses back early? I need to get a job. (Braddock, PA)

A: The criminal court sentence has nothing to do with driver licensing. Just because your jail sentence and probation are over, does not mean you are not under a license’s suspension with PennDOT. No one can answer this without knowing when this 10-year period occurred (was it from 1985 to 1995 or more recent?) and without looking at your driver’s record from PennDOT. With habitual offender’s suspensions on top of each one or one-and a half-year suspension, your license could conceivably be gone for 15 years. I would order my driver’s record from PennDOT and call the PennDOT driver’s services and see if you can sort this out. If you do not get anywhere, I would consult with an attorney. Also, be aware that your license suspension does not commence with PennDOT until you forfeit your license to them.

Can a child pick their guardian?

Q: We know a 14-year-old child who has been living with her mother and grandmother, but the mother lost custody and it was given to the grandmother. However, the mother still stays in the home when she is not allowed to and is still on drugs, but the child is treated poorly for reporting her mother and is too afraid to do it again. Can she choose to go to a non-relative that has been helping her? Her grandmother is telling her if she reports them, she will go to a family she doesn’t know, and she can’t choose the person who has been helping her. (Brookline, PA)

A: There is a general rule in PA that at age 14 a child can decide where they wish to live (if reasonable and safe). Also, if the family friend is willing to take her, and would meet a background check and home assessment from Children Youth and Families of Allegheny County, and if no other appropriate placement person came forward, CYF may very well place the child with that person. CYF will not place the child with her 18-year-old boyfriend or someone with a deplorable home or lengthy criminal history. I would speak with an attorney in your area versed in child custody and juvenile dependency.

Are personal injury settlements marital property in PA?

Q: Wife was in an accident last March 2017. Vehicle was in my name. The girl responsible for the accident insurance company offered wife a settlement and she declined stating she was getting a personal injury attorney to represent her. (Circa September/October 2017) The personal injury attorney tells us we will get about 20K settlement. Wife and I have a conversation (both in-person and through text) since receiving that information up until April 21, 2018 about how we planned on utilizing the money. (i.e., Investing it, down payment for a new car, etc., etc.) Then April 24, 2018 she leaves me and files for divorce in June 2018. Since then our divorce has been at a standstill because she refuses to give me any of the settlement payout. So, if the divorce gets finalized before she receives the payout, am I still entitled to the settlement? Also, if the settlement gets paid out to her and our divorce isn’t finalized, am I still entitled to the settlement? (Pittsburgh, PA)

A: The only time frame that matters is what was your marital status when the accident occurred. When the proceeds of the settlement are paid does not matter. There is new case law on this, so I advise you to consult with an experienced family law attorney. As the law stands now, if the accident occurred between the date of marriage and the date of separation, the proceeds of the settlement are marital property.

Deposition after the judgement?

Q: Judgement is already made and reported. It is not from the courts to appear at a deposition of execution for a credit card. Do I have to appear? I am disabled and on a fixed income with SSI and Veterans pension only. is there a way to put my information in the courts so I am judgement proof? The lawyers made this look like it came from the courts. I always thought that a deposition had to be before a judgement was made not after. (Pittsburgh, PA) A: After a judgment is taken, there are Civil Procedure rules that allow the Plaintiff to conduct discovery to determine if assets exist and where they are located. This is done, so the assets can be executed on, or seized. A deposition is one form of discovery, as are written interrogatories. A Notice of Deposition can be sent from an attorney’s office and does not need to be court ordered. If you don’t go to the deposition, the Plaintiff can get a court order requiring your attendance and may ask for counsel fees for doing so. Apparently, you did not have a lawyer to fight this judgment or you may not be in this situation. I advise consulting with one to see if you have options.

A: After a judgment is taken, there are Civil Procedure rules that allow the Plaintiff to conduct discovery to determine if assets exist and where they are located. This is done, so the assets can be executed on, or seized. A deposition is one form of discovery, as are written interrogatories. A Notice of Deposition can be sent from an attorney’s office and does not need to be court ordered. If you don’t go to the deposition, the Plaintiff can get a court order requiring your attendance and may ask for counsel fees for doing so. Apparently, you did not have a lawyer to fight this judgment or you may not be in this situation. I advise consulting with one to see if you have options.

How much time can he get?

Q: In Pennsylvania, what is the maximum penalty for an F3 and M1 violation? (Baldwin Borough, PA)

A: A defendant is normally not sentenced to the statutory maximum. A judge follows the PA Sentencing Guidelines when invoking a sentence. The “guidelines” are a complex matrix based on Prior Records Score and Offense Gravity Score. To answer your question however, A F3 is punishable by 7 years in jail and/or $15,000 fine. M1 is punishable by 5 years in jail and/or $10000 fine.

CRIMINAL LAW, SENTENCING, STATUTORY MAXIMUM

Can A POA take hourly pay if not in the original POA contract?

Q: I have an elderly client who just found out her POA been paying themselves for services. She doesn’t remember them even agreeing to pay nor is it in her POA contract. They have paid themselves $20,000 over the last 8 1/2 months and two of the months she was in the nursing home/rehabilitation facility. Some checks say it was a stipend and the others say for a certain month rate of $35.00 an hour. I guess my question is should there have been an agreement on payment for services? Thanks. (Pittsburgh, PA)

A: Agent acting under a POA cannot take a fee for his or her services unless it is authorized in the POA document. Based on what you state, it sounds like this may be a case of elder abuse and the Agent is acting beyond the scope of their authority. Your options would be to question the Agent about these expenditures and demand an answer and if there is no explainable reason, report this to police and make an appointment with an experienced elder law attorney.

ELDER LAW, POWER OF ATTORNEY, AGENT, FEE, REASONABLE