Pennsylvania Law Monitor : Pennsylvania Lawyer & Attorney : Stark & Stark Law Firm : Yardley, Philadelphia, New York, New Jersey

The Internal Revenue Service recently extended the deadline for small non-profit organizations (those with gross receipts normally under $25,000.00) to maintain their tax exempt status by filing Form 990-N to October 15, 2010. Previously, small non-profit organizations did not have to file any return at all; however, beginning in 2007, Congress mandated that all tax-exempt organizations, except churches, had to file returns with the IRS beginning in 2007. If a non-profit fails to file the return for three consecutive years, the organization may lose its tax exempt status. Although the penalty of losing tax-exempt status did not kick in until this year, it is estimated that almost one-third of small tax exempt organizations have yet to file the required return. 
 

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John* recently filed for divorce from his wife of 10 years.  They have 2 children together.  He originally came to me concerned that he and his wife had become both emotionally and physically distant from one another.   He complained his wife obsessed over her new Facebook account; constantly monitoring it through her mobile phone.  John feared the worst.  But every time he confronted his wife with his concerns, he was reassured that she was just talking to “old friends from school” or “co-workers.”

Turns out that John’s wife had reconnected through Facebook with an old high school boyfriend.  They had been having an affair for almost a year. 

And so John became the 1,011th  spouse to file for divorce in Bucks County this year.

Some sources estimate Facebook plays a role in one out of every five divorces.

While that number seems high to me, as a divorce attorney I will unequivocally say Facebook, along with the gambit of internet dating sites, is boosting my business. Internet social networking is increasingly becoming a conduit through which affairs and intimate contacts are sparked, kindled and fanned.

According to Lynne Lee, a local counselor and therapist: “Sites like Facebook are contributing to separations and divorce as bored 40 and 50-somethings try to reconnect with childhood sweethearts.”

“Relationships develop more quickly online as inhibitions are lowered, information is easily exchanged, and there’s an endless amount of people you can link up with who are there for the same reason.” Lee says.  “ Plus the real life pressures of a real relationship are absent...it tends to be a bit of a fantasy world.”

Everyone has some degree of fantasy about a love that might have been from the past.  The new technology helps you find and reconnect with these people.  It’s an easy escape from the “doldrums” of marriage when the sparks fade after years of raising children and the pressures of maintaining a home.

Lee, who counsels couples, encourages them to talk about how Facebook can hurt as well as help their relationship.  She offers the following boundaries for spouses on Facebook: 

• Avoid “friending” exes
• “Friend” each other and bring each other up from time to time on the site
• Keep conversations with people of the opposite sex public on Facebook “walls”
• Share user names and passwords with each other and encourage your spouse to login to your account so they can be assured there are no secrets
• List yourself as “married” in your status (its kind of like a cyber wedding ring)
• Never put down your spouse or bring up relationship problems on Facebook
• When in doubt “defriend”  Lee emphasizes this one.  If you find yourself frequently looking at someone else’s profile or waiting for their next post - you need to walk away by “defriending” that person
• Don’t spend more time online than with your spouse.  Escaping into a cyber fantasy world and pursuing an exciting encounter is a poor excuse to avoid confronting real life issues in a real relationship, especially if children are involved

Social networking is here to stay.  The sooner couples talk about it, the less harm it can do to a marriage.  Setting up boundaries to protect your marriage, both in life and online, doesn’t mean you’re an untrusting, insecure or jealous person.  It means you recognize that even people with the best of intentions can compromise themselves.

Spend some facetime with your spouse to make sure you are on the same page with Facebook.

*Names have been changed.  Used with permission of the client.

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When law enforcement is called to the scene of an auto accident, their investigation is typically limited to speaking to the drivers involved in the accident along with any witnesses. From there, the police officers will conduct a quick examination of the scene of the accident.  Within an accident report, it is not uncommon for a police officer to draw a conclusion regarding the degree of responsibility of the drivers involved in the accident based upon this limited investigation. 

Sometimes, usually in complex accidents resulting in serious injury or death, the police will take their investigation a step further and hire an expert to reconstruct the accident for the purpose of determining who was responsible.  However, despite its seeming authority, not even this type of report can be consistently relied upon. 

Several years ago, I represented a client who was killed when his vehicle collided with a large truck as the truck was attempting to make a left turn out of a fuel depot.  At the time of the collision the cab of the truck had fully cleared my client’s lane and was facing forward in the oncoming lane of traffic with headlights on.  However, the trailer of the truck was fully blocking my client’s lane of traffic.  As the area was poorly lit and the truck did not have proper reflective equipment along the trailer, my client was unable to see the trailer before he collided with it. 

The police retained an accident reconstruction expert who determined that my client was 100% at fault as he should have seen the truck and been able to stop his vehicle before the collision occurred.  After viewing this accident report, I retained several experts of my own who noticed some serious flaws in the police expert’s reconstruction.  For one, the police expert had reconstructed the accident without considering the fact that the truck was carrying a full load at the time of the accident.  This caused the police expert to inaccurately determine the speed of the truck and wrongly concluded that my client had enough time to stop his vehicle.  In addition, the police expert had failed to properly consider the impact of the poor lighting conditions and the lack of reflective equipment on my client’s ability to see the trailer.  I was able to retain an expert who concluded that these factors created visibility conditions such that my client could not have seen the trailer and stopped in time to avoid the collision.  As a result, I was able to obtain a substantial settlement in favor of my client.

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Summer is over and the new school year has begun. Now more than ever drivers need to do their part to keep kids safe as they walk and bike to school. Whether you are taking your kids to school or just driving through a school zone, you can do your part to keep kids safe. Follow the tips below to make sure you keep your children safe while walking and biking to school.

Top Back to School Safety Tips

Here are some simple reminders for drivers:

• Slow down and be especially alert in the residential neighborhoods and school zones
• Take extra time to look for kids at intersections, on medians and on curbs
• Enter and exit driveways and alleys slowly and carefully
• Watch for children on and near the road in the morning and after school hours
• Reduce any distractions inside your car so you can concentrate on the road and your surroundings - put down your phone and don’t talk or text while driving

Reminder for your kids:

• They should cross the street with an adult until they are at least 10 years old
• Cross the street at corners using traffic signals and crosswalks
• Never run out into the streets or cross in between parked cars
• Make sure they always walk in front of the bus where the driver can see them

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Under Pennsylvania’s Dram Shop law, a business or individual who gives alcohol to a visibly intoxicated person is legally responsible for any damage that person might cause.  The name “Dram Shop” comes from England, where gin was once sold by the spoonful, or “Dram.”  Pennsylvania’ s Dram Shop law applies not only to businesses that serve alcohol, like bars and restaurants, but also to private events.  The law may apply when the server has committed other liquor violations, such as serving alcohol to a minor, serving alcohol after hours, or serving without a license.  In that case, the business or individual who served alcohol illegally may be criminally charged for the violation, as well as sued for financial damages by the victims of the person they allowed to become intoxicated.

Most often, the Pennsylvania Dram Shop law is used after an intoxicated person causes a serious auto accident.  It’s often a part of a larger lawsuit filed against the driver himself or herself.  However, a Dram Shop lawsuit doesn’t have to be an auto accident -- if a bar serves a visibly intoxicated person who then starts a fistfight and seriously injures another patron, that patron could sue the bar under the dram shop law.
  
In order to successfully sue under the dram shop law, you must be able to prove that:

1. An employee or “agent” of an establishment served alcohol to someone at a time that that person was visibly intoxicated.  Whether someone is  “visibly intoxicated” depends not on blood-alcohol content or number or drinks, but rather on  apparent signs of intoxication like bloodshot eyes, slurred speech and staggering.  In some cases, visible intoxication may be proven with strong circumstantial evidence, like blood-alcohol measures or a guilty plea to a DUI; and,
2. The business or host’s decision to serve alcohol to the visibly intoxicated person directly led to the injuries.

In order to maintain a cause of action in Dram Shop cases, a claimant must present evidence that is sufficient to meet the requirements of Pennsylvania's Dram Shop Act. Pennsylvania's Dram Shop Act reads as follows: “No licensee shall be liable to third persons on account of damages inflicted upon them off the licensee's premises by customers of a licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by said licensee or his agent, servant or employee when said customer was visibly intoxicated.”  47 P.S. § 4-497.  See Tuski v. Ivyland Café, 2004 WL 4962363 (Pa. Com. Pl. 2004).

A plaintiff must establish that a licensee served a patron when the patron was visibly intoxicated to establish a cause of action.  In a Dram Shop cases, “The jury may not be permitted to reach its verdict merely on the basis of speculation and conjecture, but there must be evidence upon which logically its conclusions may be based.” Rohm & Haas Co. v. Continental Casualty Co., 732 A.2d 1236, 1254 (Pa. Super 1999).  However, expert testimony corroborated by additional circumstantial evidence is sufficient to state a cause of action that will withstand summary judgment on the issue of whether a patron is visibly intoxicated.  Fandozzi v. Kelly Hotel Inc., 711 A.2d 524 (Pa. Super. 1998).

It is well-settled in this Commonwealth that in order to be held liable under the Pennsylvania Dram Shop Act, 47 P.S. §4-493(a), an injured plaintiff must prove two things: “(1) that [he] was served alcoholic beverages by a licensee while visibly intoxicated and (2) that [the] violation of the statute proximately caused [his] injuries.”  Johnson v. Harris, 419 Pa. Super. 541, 550, 615 A.2d 771, 775 (1992); Hinebaugh v. Pennsylvania Snowseekers Snowmobile Club, 2003 WL 23105240 (Pa. Com. Pl. 2003).

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This is part 2 of a 2 part post discussing expense, time and overall experience one faces during litigation. You can read part 1 here.


Likelihood of Success
The next important factor in deciding whether to go forward with litigation is the likelihood that a client’s claims will succeed.  Commonly, clients who are infrequent litigants believe that the moral “rightness” of their position and his or her opinion that the other party is a scoundrel is so plainly obvious that it will immediately be recognized by a Judge, who will cut through all of the usual procedural hurdles, Rules of Evidence, and legal technicalities to summarily enter judgment in his or her favor, chastising the other party in the process.  The client may have gotten this idea from television – which is the only place that you will see this happen.  When I counsel a client considering pursuing a claim in litigation, it is very important that we have a dispassionate review of the relevant evidence in the client’s possession or which the client believes can be acquired in Discovery in order to assess whether the client’s claims can actually be proven.  All of the time and expense in pursuing a claim will be for naught if there is a conspicuous gap in evidence necessary to prove a claim – making litigation a very bad economic decision.  


“Collectability” of the Judgment
The final factor that I counsel clients to consider when making the decision whether or not to pursue litigation is to try to estimate the “collectability” of a judgment against a potential defendant.  There are no longer “debtors prisons” in the United States, and therefore the ability to collect a judgment is contingent upon a potential defendant’s financial health, assets, and applicable insurance policies.  A Ten Million Dollar judgment against a penniless debtor is worth nothing – I like to counsel my clients to think of recovery in terms of “real dollars,” as opposed to the amount of a judgment which may not be converted into money in the client’s hand.  If a client is considering suing a business likely to stop operating or an individual on the brink of bankruptcy, it would be wise to consider these facts in making the decision to go forward.     


Some Final Thoughts
I find that good client service requires a candid discussion of these factors when deciding whether to litigate a claim as an economic decision, rather than after the client has spent significant sums in fees and costs.  It is the duty of a lawyer to counsel the client with the client’s economic interests in mind.  If a lawyer does not discuss the above factors with a client before counseling the client to go forward with litigating a claim, the client would be right to be a bit skeptical and wonder if the lawyer has not let his or her own need for business and fees to override the duty to be candid with the client.  Pursuing the litigation of a claim with little or no prospect of recovery of “real Dollars” can compound the client’s losses and be economically disastrous for the client.  While there are no guarantees in the law, in my experience keeping the client’s economic interests in the forefront and being honest with the client – and sometimes telling the client what he or she does not want to hear - yields more satisfied clients in the end and fosters an environment of trust and confidence between lawyer and client. 

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In this video, Anthony Zabicki, Shareholder in Stark & Stark's Accident & Personal Injury Group, discusses the various issues you need to consider if you or a loved on are every involved in a medical malpractice case. Mr. Zabicki also discusses the necessary components for a successful medical malpractice case such as the assistance of medical experts and health care professionals.

Medical Malpractice - Part 2 from Stark & Stark on Vimeo.

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