Attorney C. Daniel Higgins has passed away.

Sadly, fellow local attorney and Past President of the Monroe County Bar Association C. Daniel Higgins has passed away.

http://www.poconorecord.com/apps/pbcs.dll/article?AID=/20140822/NEWS07/408220325&emailAFriend=1

He will be missed. Condolences to his family.

PA Supreme Court rules - Homeowner warranties only apply to first purchaser

The PA Supreme Court has just decided a case of first impression in which it held that warranties provided to homeowners who are the first purchases of newly constructed homes applies only to the first purchaser, and not to subsequent ones.

The Pennsylvania Supreme Court has ruled that homeowners' warranties against defects apply only to a property's first buyer, and cannot be passed along in subsequent sales.

The unanimous decision, reversing a Pennsylvania Superior Court decision, said homeowners' warranties are based on the contractual relationship between a builder of a new home and its purchasers. There is no such relationship between the developer and subsequent purchasers, the court said in an opinion written by Justice Seamus P. McCaffery.

In finding that such warranties can only be exercised by first purchasers of new homes, the court rejected the reasoning of Superior Court, which said such warranties are aimed at equalizing the "disparate" positions of home sellers and buyers, and exist even in the absence of any contract between the two.

http://www.poconorecord.com/apps/pbcs.dll/article?AID=/20140820/NEWS90/140829997

The Court went further in describing how there was no privity of contract between the home builder or developer and subsequent purchases. So for example, if person A buys a newly built home with a 20 year warranty from Builder X, then 2 years later decides to sell it to Person B the warranty does not transfer by operation of law. This could be a significant detriment to new home buyers trying to sell before the expiration of such warranties, and might result in a decrease of the selling price for new homes.

The Court also addressed that this issue is primarily one of legislative, not judicial purview, and that should the legislature choose to enact legislation to provide for transferable warranties they are able to do so.

It would also seem not to affect any contracts which expressly provide for transferability of warranties. However, in my experience these are few and far between.

Where do the police patrol for speeding tickets?

Knowing where the high concentration of speeding tickets are issued in your area can give you a good idea of where police presence is increased. Speeding tickets are a major revenue generator, so it's important to know where to stay on your best behaviour while driving.

In the Pocono area, the Pocono Record recently published a study of recent traffic tickets to determine areas of high State Police concentration.

http://www.poconorecord.com/apps/pbcs.dll/article?AID=/20140810/NEWS/408100332

If the Police are there for speeding tickets, it's a good bet they also patrol those areas heavily for other traffic offenses including DUIs and minor offenses which could lead to a traffic stop.

The best policy is to avoid these areas altogether and find an alternate route.

What is an Arraignment?

The Arraignment in most Pennsylvania counties is the first formal appearance for a criminal defendant at the Court of Common Pleas. Excepting some specialized matters, the vast majority of criminal cases start at the Magisterial District Justice level for a Preliminary Hearing. Assuming charges are "held for court"* the matter is then transferred to the Court of Common Pleas for further proceedings.

At the formal Arraignment, the defendant is entitled to have the charges read to him or her. The defendant is asked to enter a plea of guilty or not guilty. Unless the matter has already been negotiated at the Preliminary Hearing the defendant will enter a plea of not guilty. Then the Court will set a schedule for further hearings including a tentative trial date.

In many counties the Arraignment can be waived, as it is mostly a procedural mechanism, and the defendant would not have to appear. There may be good reasons not to waive an Arraignment, for example if the defendant wishes to file a motion for bail reduction or if the defendant is uncertain of the specific charges against him or her. (The Arraignment is often concurrent with the filing of the criminal information, more on that in a later post).

While the Arraignment is often seen as a procedural artifact, it is still vitally important in preparing an effective criminal defense. The Arraignment sets the dates going forward for critical pre-trial procedures.

• Any defense request for a Bill of Particulars must be filed within 7 days.
• Any discovery request must be made within 14 days. 
• Any pre-trial motions must be filed within 30 days.

While these dates can be extended by order of court, if the defendant or his/her counsel fails to adhere to these timelines there is a risk of waiver, which could be disastrous for the defense. Even in those cases where the defendant waives his or her Arraignment, special attention should still be paid to the time frames going forward. 

*"Held for court" means that the MDJ found that enough evidence exists to allow the case to proceed to the next level.

Photographing police officers in public

There has been a continued practice of police officers claiming that private individuals photographing or videoing them during the course of their duties is a violation of a law. This most recently occurred when a Border Patrol Agent accosted a group of Boy Scouts in Alaska.

Boy Scout Troop 111 Leader Jim Fox spelled out what happened to him and the Mid-Iowa Boy Scout Troop 111 as four van-loads of Scouts and adult volunteers tried to drive from Canada into Alaska.

Fox said one of the Scouts took a picture of a border official, which spurred agents to detain everyone in that van and search them and their belongings.

“The agent immediately confiscated his camera, informed him he would be arrested, fined possibly $10,000 and 10 years in prison,” Fox said.

Fox said he was told it is a federal offense to take a picture of a federal agent.

Not wanting things to escalate, Fox said he did not complain.

Another of the Scouts was taking luggage from the top of a van to be searched when something startling happened.

“He hears a snap of a holster, turns around, and here’s this agent, both hands on a loaded pistol, pointing at the young man’s head,” Fox explained. [emphasis added].

http://www.kcci.com/news/officer-points-gun-at-boy-scout-at-canadian-border/27078396#!bjWo9y

Of course, there is no such federal or state law in Alaska, despite the Border Patrol Agent's claim. There have been many such abuses all across the nation. Fortunately, the legal system is catching up, and officers have been reprimanded, sued civilly and in some case prosecuted for these actions.

The ACLU recently clarified the right to photograph in public.

Taking photographs of things that are plainly visible from public spaces is a constitutional right – and that includes federal buildings, transportation facilities, and police and other government officials carrying out their duties.

https://www.aclu.org/free-speech/know-your-rights-photographers

Police and Law Enforcement are constantly encroaching on the privacy rights of citizens by installing ever more surveillance cameras and utilizing other forms of invasive technology. Fortunately, police abuses of power can be photographed by every person with a smart phone to ensure they are on their best behaviour.

Property Tax Assessment Appeal

When purchasing a property it is always important to check that the assessed value of the property matches the actual market value. If the property is assessed higher than the actual market value the property-owner may be paying significantly higher taxes than justified.

This is especially important in a down economy when property values have dropped. NEPA has been hit hard by such a drop. Evaluating whether an assessment appeal is needed is an important consideration every homeowner and new purchaser should consider. This is doubly essential for properties purchased at foreclosure or tax sales.

The process for the appeal begins at the local level, and it is often crucial to have an appraisal done by an independent party to present. Representation by an experienced attorney is also a key part of the appeal.

Fees vary depending on the likelihood of success and the amount that can be saved by the assessment appeal. Some attorneys will perform this work on a contingency basis, meaning that they recover no fees if the appeal is unsuccessful. Potential appellants should be careful about such an arrangement as it may wind up costing him or her a significant portion of any savings generated by the appeal.

Cell Phone searches require a warrant when seized incident to arrest.

The Pennsylvania Superior Court recently issued a decision in the matter of Commonwealth v. Stem, affirming the United States Supreme Court's decision in Riley v. California, that a search incident to arrest does not cover the content of cell phones absent a warrant issued on probable cause.

In this case, the Defendant was apprehended and taken into custody for a domestic violence violation. While being processed for arrest his cell phone was taken and the Officer reviewed the photographs contained on the phone. The Officer did not have a warrant and was not able to articulate probable cause as to why the cell phone should be searched. The phone contained roughly 17 photos that appeared to be child pornography. Stem was later charged with child porn violations. Prior to trial he moved to suppress the photos as his phone was searched without a warrant, in contravention of the Supreme Court's decision in Riley. 

The trial court and then on appeal the Superior Court both held that the warrantless search of the cell phone was not a legal search and suppressed all evidence of the photos. 

Child pornography is a terrible crime, but requiring a warrant before police can search someone's cell phone protects everyone's privacy interests. As the Supreme Court explained in Riley, cell phones contain far more than just phone numbers or pictures. Cell phones linked to the internet can contain a person's entire banking history. Personal email or text messages. Confidential medical information, and much more. Being secure in the privacy of this material absent a warrant is in everyone's interests.