PRACTICE AREAS
Felonies, misdemeanors, reasonable suspicion, probable cause, beyond a reasonable doubt – attorneys have a language all their own. Most people only understand criminal law from what they see on TV, or when they get a speeding ticket, but if you, a loved one, friend, or acquaintance is asking about criminal charges, it is something that must be taken seriously.
The procedure for how a charge proceeds through the court system is straightforward. It begins when someone gets charged via grand jury indictment, however what more commonly happens is when a person gets a ticket or citation. The next step is a preliminary hearing. At this level the person becomes the “defendant”. At this stage, the Commonwealth must show a neutral magistrate or judge that the evidence they have is sufficient to make a prima facie case. That means, that a crime was committed and more likely than not the person who committed the crime is the person they have charged. The standard is very low.
Should the judge or magistrate find the Commonwealth has met their burden, the charges then are “held over”, which is a fancy way of saying, they are going to the next level. The next level is the trial court, or Court of Common Pleas. This is where the trial happens. But before the actual trial there are a lot of procedures that can be invoked, for instance, the filing of pretrial motions, motions in limine, depositions can be taken, etc. There is also the back and forth in trying to reach a plea. That is where the defendant can accept guilt and forgo the need of a trial in exchange for a “lighter” sentence than they would typically get following a trial. If the defendant forgoes the plea offer and goes to trial, then it runs like what you see on TV. The Commonwealth bears the burden of proving each elements of the charged offense to a level of beyond a reasonable doubt. This is not a mathematical equation, but more a term of art. Most commonly beyond a reasonable doubt is defined as when a reasonable person must decide on a matter of great importance and the thought process, or why they reach that decision is how reasonable doubt is classified. A popular example is when you come to a busy street that you want to cross from one side to the other. Most people would not just walk out into the street without stopping first to look both ways to make sure it is safe to cross. That “stopping” is reasonable doubt. If a person decides it is not safe to cross, then the burden has not been met. However, if the person does stop, see it is safe to cross, and crosses, then the burden has been met. Should that be the case, the Commonwealth will prevail, and the defendant will be found guilty. It is at this point that the court turns to sentencing.
In Pennsylvania, like most jurisdictions, crimes are classified into three categories: felonies, misdemeanors, and summaries. Think of it like a traffic light in terms of severity; felonies are the red lights, misdemeanors are the yellow lights, and summary offenses are the green lights. Of course, there are gradings for each of those categories. Gradings are typically in reverse order in terms of penalty, with the lower number having the harsher sentence. For instance:
Felony:
Misdemeanor
Summary - sentenced to a term of imprisonment, the maximum is not more than 90 days.
Back in 1982, Pennsylvania promulgated the “Sentencing Guidelines” which can be found in full at 204 Pa. Code 303.1 et seq. Courts consider the sentencing guidelines in determining the appropriate sentence for offenders convicted of, or pleading guilty or nolo contendere to, felonies and misdemeanors.
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed absent a manifest abuse of discretion. When imposing a sentence, the sentencing court is required to consider the sentence ranges set forth in the Sentencing Guidelines but is not bound by the Sentencing Guidelines. A court may depart from the guidelines if necessary, to fashion a sentence which considers the protection of the public, the rehabilitative needs of the defendant, and the gravity of the offense as it relates to the impact on the life of the victim and the community. When a court chooses to depart from the guidelines however, it must demonstrate on the record, as a proper starting point, his awareness of the sentencing guidelines. Further, the court must "provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Commonwealth v. Peck, 202 A.3d 739 (Pa. Super. Ct. 2019).
For each conviction, the procedure for determining the guideline sentence is to: Determine the Offense Gravity Score (“OGS”), Determine the Prior Record Score (“PRS”), & Determine the guideline sentence recommendation, including enhancements and aggravating or mitigating circumstances. Guidelines can range from probation all the way up to statutory limits. For a murder charge that could mean the death penalty or life imprisonment. Outside of that, however, the limits are categorized into state offenses (anything 24 months or more of incarceration) and county offenses (typically under 24 months).
In summation, I wanted to advise you of how the criminal courts in Pennsylvania typically work, and on the potential penalties on charges.
Should you wish to discuss this further feel free to contact me.
Family law is the law relating to family disputes and obligations. It involves divorce, child custody, and child support.
Divorce
Divorce, also known as dissolution of marriage, is the process of terminating a marriage. Divorce usually involves the canceling of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple. Divorce is different from annulment, which declares the marriage null and void from its inception. Reasons for divorce vary, but normally include sexual incompatibility or lack of independence for one or both spouses to a personality clash, to financial difficulties.
There are two basic methods to divorce: fault based and no-fault based. Normally fault based divorces are considered contested divorces. In such a divorce the spouses are not able to agree on issues. In such situations, the process takes longer to conclude. Fault-based divorces can be contested; assessment of offenses may involve allegations of knowledge of the parties, or condonation, connivance, or provocation by the other party. Contested fault divorces can be expensive, and not usually practical as eventually most divorces are granted.
The grounds for a divorce which a party could raise and need to prove included desertion, abandonment, cruelty, or adultery. The requirement of proving a ground was revised by the addition of 'no-fault' statutes. In no-fault jurisdictions divorce can be obtained either on a simple allegation of 'irreconcilable differences, irretrievable break-down, or incompatibility. Pennsylvania is a no-fault divorce state. For example, for "irretrievable breakdown", the mere assertion that the marriage has broken down will satisfy the standard. For irreconcilable differences, the mere allegation that the marriage has been irreparable by the differences of the parties is enough for granting a divorce.
Child Custody
Child custody is a legal term regarding the legal and practical relationship between a parent or guardian and a child in that person's care. Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to house, provide and care for the child. Decisions about child custody typically arise in proceedings involving divorce, annulment, separation, adoption, or parental death.
Pennsylvania, like most jurisdictions, follow the best interests of the child standard. The "best interest" rule suggests that all legal decisions are made with the goal of ensuring a child's happiness, security, and overall well-being. There are many different factors that go into the decision that is made in a child's best interest, which include: the child's health, environment and social interests, the relationship each parent has with the child, and the ability of each parent to address the needs of the child.
To obtain custody, one parent must file a custody action in the county they are living in. The process varies from county to county, but typically involve a multistep process. This could mean attending mediation to reach an agreement or going through the court’s sponsored arbitration program. This is where a hearing officer hears from each party and submits their recommendations as to what they believe custody should be. If either party does not agree, they can appeal to the court for determination.
There are different types of custody in terms of physical custody. The two most commonly found in Pennsylvania are:
Child Support
In family law child support (or child maintenance) is an ongoing, periodic payment made by a parent for the financial benefit of a child. Child support is paid directly or indirectly by an obligor to an obligee for the care and support of child. Often the obligor is a non-custodial parent. The obligee is typically a custodial parent.
Child support is based on the rule that both parents are obliged to financially support their child. When the parents are not together, courts often order one parent to pay the other an amount set as financial support of the child. In such situations, one parent (the obligee) receives child support, and the other parent (the obligor) is ordered to pay child support.
Child support paid by a non-custodial parent or obligor, does not absolve the obligor of the responsibility for costs associated with their child staying with the obligor in their home during visitation. For example, if an obligor pays child support to an obligee, this does not mean that the obligee is responsible for food, shelter, furniture, toiletries, clothes, toys or games, or any of the other child expenses directly associated with the child staying with the non-custodial parent or obligor.
In most jurisdictions there is no need for the parents to be married, and only paternity and/or maternity need to be proven for a child support obligation to be found. Child support may also operate through the principle of estoppel where a de facto parent that is in loco parentis for a sufficient time to establish a permanent parental relationship with the child or children.
Typically, a parent has the duty to pay child support irrespective of sex. So, a mother is required to pay support to a father just as a father must pay a mother. Normally, the parent with a higher income (obligor) is required to pay the other parent (obligee).
While the issues of child support and visitation or contact may be decided in the same divorce or paternity settlement, in Pennsylvania the two are separate and individually enforceable. Custodial parents may not withhold contact to "punish" a noncustodial parent for failing to pay some or all child support required. Conversely, a noncustodial parent is required to pay child support even if they are partially or fully denied contact with the child. Additionally, a non-custodial parent is responsible for child support payments even if they do not wish to have a relationship with the child. Courts have maintained that a child's right to financial support from parents supersedes an adult's wish not to assume a parenting role.
While procedures vary state to state, in Pennsylvania the process of filing for child support has several steps:
To determine how much one parent must pay to the other, Pennsylvania uses guidelines, which are either a percentage of income or more usually in the form of tables listing incomes and the amount needed to support one to six children. These computations are often performed by computer programs upon input of certain financial information including, earnings, visitation (overnights with the non-custodial parent (NCP)), health insurance costs, and several other factors.
Once established, child support orders typically remain static unless otherwise reviewed. Either party can request a court review for modification alleging circumstances have changed such that the child support would change. For instance, if the obligor has a change in income or faces financial hardship, they may petition the court for a reduction in support payments. Examples of financial hardship include supporting other children, unemployment, extraordinary health care expenses, etc. Likewise, if the obligor is spending more time with the child, they may petition the court for a reduction or even a reversal in support payments. Conversely, if the child's expenses increase, the obligee may ask the court to increase payments to cover the new costs.
Although both parents have the right to petition the court for a support order adjustment, modifications are not automatic, and a judge may decide not to alter the amount of support after hearing the facts of the case. Simply because an obligors's income has decreased, a court may find that the decrease in income is of no fault of the child, and will not decrease the child's expenses, and therefore should not affect him or her financially. Likewise, a court may find that an increase in the child's expenses may have been calculated by the receiving parent and is not necessary, and therefore the support obligation of the paying parent should not increase.
Most, if not all people, do not like to plan for the inevitable. Countless times families are left with unanswered questions upon the untimely passing of a loved one. Simple planning can provide hours, if not years’ worth of relief on those left behind.
As a practical matter, there are certain minimum documents that everyone should have:
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- Last Will and Testament - A Will is a written document signed in the manner prescribed by law and which disposes of property upon death. A Will also nominates who you would like to be responsible to administer your estate when you die, can nominate guardians for minor children, can determine when and how your devisees will receive the property you leave to them, can determine how taxes, if any are owed, will be paid, and can employ tax-saving strategies. A Will must be probated before it becomes effective, i.e., after your death. It does not provide any help for you while incapacitated during your life.
- Trust - A private agreement between a “settlor” and a “trustee” to manage trust assets in certain ways for the benefit of a “beneficiary”. A Trust may be revocable or irrevocable, have more than one beneficiary, be written or oral, and include a “trust protector” provision. The most common type of trust is Special Needs Trust (also called Supplemental Needs Trust). This type of document protects disabled beneficiary’s eligibility for government benefits, provides for higher quality of life, provides framework for care and management of assets, allows parents to express their desires, protects assets from creditors and predators, and extends life of assets.
- Durable Power of Attorney - Empowers your “agent” to act on your behalf in financial transactions. Can be either “springing” or “immediate”. “Springing” requires proof that condition has been met – usually that you are incapacitated while “Immediate” allows your agent to act on your behalf whenever needed. “Durable” means that the POA stays in effect after the principal becomes mentally incapacitated
- Advance Health Care Directive - This encompasses a couple different documents:
- Health Care POA - Empowers your agent to act on your behalf to make medical decisions.
- End of Life Decisions (“living will”)
- HIPAA Authorization - Names “authorized recipients” of your private health information. Allows “covered entities” (health care providers) to release your private health information to “authorized recipients” without violating the HIPAA Privacy RuleElder law attorneys are often pigeonholed into Medicaid and other crisis planning roles when the scope of the elder law field is much broader. It is difficult to formulate a concrete definition of elder law, but many attorneys agree that elder law can best be defined by the demographics an elder law attorney serves—the elderly and the disabled. Any and every issue that these two demographics could conceivably face falls under the umbrella of elder law.
- Last Will and Testament - A Will is a written document signed in the manner prescribed by law and which disposes of property upon death. A Will also nominates who you would like to be responsible to administer your estate when you die, can nominate guardians for minor children, can determine when and how your devisees will receive the property you leave to them, can determine how taxes, if any are owed, will be paid, and can employ tax-saving strategies. A Will must be probated before it becomes effective, i.e., after your death. It does not provide any help for you while incapacitated during your life.
Some common practice areas under the umbrella of “elder law” include:
Civil litigation is an oxymoron. Typically, there is nothing civil about two or more parties that have found themselves in a disagreement with nobody willing to budge. In such a case, parties are left with two options: do nothing or go to court.
Although not the primary answer to a difficult question, courts can provide clarity to otherwise murky waters. Normally, you find this in contract situations. One party employs or contracts with another to provide a service. The performing party either does not perform or performs in a manner that the contracting party believes does not meet their standards. When they cannot agree, either party can avail themselves to the court to set the relationship right.
I always advise my clients to document everything: take photos, have hard copies of every contract, communication, email, text, etc., know dates, times, and locations on when things happened, or more importantly, when things did not happen. Having everything in order is the cornerstone of a client’s case.
Normally a party will not want to rush into court. One thing to be cognizant of is a law called the statute of limitations. This is the timeframe when a party must bring an action or be precluded from doing so. Typically, for contracts, the statute of limitations is 4 years, however, there are exceptions that can increase or decrease that date. Getting timely advice is tantamount to protecting your interests.
Once your case is evaluated it might make sense to have us attempt to negotiate on your behalf to resolve the dispute. There is a reason over 90% of cases settle out of court. Court is expensive and time consuming. Sometimes something as simple as a “scary lawyer letter” sent to the other side can resolve an otherwise impossible situation.
For those cases where a letter or phone call cannot resolve the dispute, it helps to have counsel know the law, understand the facts, appreciate the situation their client is in, and be able to ultimately prevail before the courts.
For over 15 years, I have been doing just that. Feel free to contact my office to discuss your issue.
Simon Law, LLC has been providing corporation services for over 15 years. We answer questions and offer helpful and profitable suggestions to organizing entities. We prepare documents for business and nonprofit corporations, limited liability companies and fictitious name filings for all fifty states and the District of Columbia on an expedited basis.
Our services include:
Save yourself the time and expense of doing the research. Contact us by e-mail or phone and we will prepare and process your corporate and other business filings quickly and effectively, and in most cases at less cost than you would incur if you did the work yourself.
Minor courts, or “MDJ” courts, are the first level of Pennsylvania's judiciary. These courts are presided over by magisterial district judges (MDJs).
MDJ’s are responsible for:
I have been practicing before the MDJ courts consistently for over 15 years. Call me to discuss your case.
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