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Big Changes in PA DUI Law SIGNIFICANT CHANGE IN PENNSYLVANI DUI LAW The Pennsylvania SuperiorCourt has recently decided the case of Commonwealth v. Chichkin, 2020 Pa. Super 121, No. 3475 EDA 2018. This decision will change the availability and applicability of the Accelerated Rehabilitative Disposition (“ARD”) programs in DUI cases. DUI-FIRST OFFENSE FOR OFFENDERS WHO ACCEPT ARD The ARD program is a pre-trial diversionary program typically offered to first time offenders under certain conditions. If accepted, you will have a 6-12 month probation under ARD supervision.  You will attend mandatory Highway Safety classes. You may lose your license for some time.  The ARD program cost to you is $1,500 to $2,000.  At the completion of the ARD probation, you can petition the court to dismiss and expunge the charges. If granted, then your arrest information should be destroyed and charges dismissed.  Even though your record was expunged, the charging authority would maintain its own records and “count” the ARD as a first offense for purposes of handling and grading subsequent DUI offenses, including the imposition of heightened penalties for second or subsequent DUI offenses. In this recent decision the Superior Court held that prior acceptance of ARD does not constitute a prior offense under the DUI statute. The Court reasoned that the purpose of the ARD program is not to convict the defendant but offer rehabilitation and treatment for behavioral issues. Therefore, the mere acceptance of ARD is not correlative to a conviction for DUI. IMPACT ON DUI SENTENCING The court’s decision substantially lessens the potential criminal liability a defendant may face who has had prior contacts with a DUI. For example, under the statute as previously interpreted, a defendant who accepted ARD and was charged with DUI faced a mandatory minimum of ninety (90) days in jail for refusal or highest tier DUI. Under the new interpretation of the statute, the same defendant would now be treated as a first-time offender and face a mandatory minimum sentence of seventy-two hours incarceration if convicted. Instead of an eighteen-month license suspension the defendant would now face a twelve month license suspension if convicted since the alleged crime would be treated as a first-offense. IMPACT ON ARD PROGRAM FOR FIRST-TIME OFFENDERS The new development in the law makes ARD a substantially better deal for a first time offender BUT ARD may be offered less frequently. Previously, if a defendant accepted ARD and was later convicted of DUI he would be treated as a second-offender with far higher penalties. Therefore, it made sense to take a case to trial and win the case rather than accept the program since a not guilty verdict did not qualify as a prior offense. Now that ARD does not qualify as a “prior offense” there is very little difference between a not guilty verdict and acceptance of the ARD program. This may encourage more individuals to accept the program since it is not viewed as an admission of guilt and cannot be used against the defendant if he is subsequently arrested for Driving Under the Influence. The change in the law may reduce the availability of ARD for first-time offenders. The ability to treat a DUI following a prior ARD as a second offense was a key trade-off that made the ARD program widely available. Now that the ARD cannot be treated as a first offense, authorities may be far less likely to offer ARD to first time offenders. SPEAK WITH AN EXPERIENCED CRIMINAL DEFENSE LAWYER ABOUT YOUR CASE If you have been charged with Driving Under the Influence, First, Second, or Third Offense it is important to speak with an experienced criminal defense lawyer about your options. You may be eligible for a program like ARD. ARD is not a great program for persons with professional licensures such as doctors, nurses, attorneys, chiropractors, etc. You may also have a strong defense to the case that would result in an acquittal at trial. Therefore, before you accept a program or decide to plead guilty speak with an attorney about our options. While every case is different, and case results may vary depending on the particular facts of your case, it is important that you speak with an experienced and strong advocate before accepting the government’s proposed resolution to your case.

The second phase of Pennsylvania’s Clean Slate Law goes into effect today. This phase automatically seals certain criminal records, involving charges that were dropped where individuals were found not guilty, as well as summary and minor misdemeanor convictions that are ten years old. Not all records are eligible, and the rules are complicated. This automated process will begin on June 28, 2019 and the courts have a full year – until June 27, 2020 – to finish sealing all of these cases. While law enforcement will still be able to pull up arrests and convictions, the public, including landlords and most employers, will not. “If people with sealed records are asked about prior convictions, it will be as if the crime never happened” Attorney Melissa A. Derby of Welch, Gold, Siegel & Fiffik, P.C. said. “If this person is applying for a job and are asked if they’ve ever been charged or convicted of a sealed crime, their answer is ‘no’,” Derby also said. Most misdemeanor and summary convictions are eligible for sealing. Some of these convictions will be sealed automatically under Clean Slate. Some need to be sealed by petition. The rules are complicated but there are three things you can do to check to see if you may qualify: 1. Check the state court docket system for your conviction date. You must be 10 years conviction free. 2. Check the grade of your conviction. Most non-violent M2, M3 and S graded convictions are eligible for sealing, but there are many exceptions. If you have an M1 conviction, speak with a lawyer to see if you are eligible for sealing. Felony convictions are generally not eligible for sealing. If there is no grade next to your charge, this missing information can prevent your record from being sealed. Contact a lawyer for assistance in getting the record corrected so that sealing can take place for your convictions. 3. Check if you owe money. Your case will not be sealed until the record shows that the amount you owe in fines, costs and court fees is $0. If your case is ineligible for automatic sealing, we still may be able to help you. Some convictions can be sealed even earlier than the automatic process, but they may require a court proceeding. If you have any questions about how the Clean Slate law applies to your prior arrest record or convictions, please contact us. Fiffik Law Group Attorneys who can help you with a criminal matter: Matthew A. Bole Ashley E. Rundell Barbara K. Weiss John B. Cermak

Stand at a safe distance and, if possible, use your phone to record video of what is happening. As long as you do not interfere with what the officers are doing and do not stand close enough to obstruct their movements, you have the right to observe and record events that are plainly visible in public spaces. Do not try to hide the fact that you are recording. Police officers do not have a reasonable expectation of privacy when performing their jobs, but the people they are interacting with may have privacy rights that would require you to notify them of the recording. In Pennsylvania, you have no obligation to affirmatively make people aware that you are recording them. That’s not the case in all states. You can check the rules of your state here. Police officers may not confiscate or demand to view your photographs or video without a warrant, and they may not delete your photographs or video under any circumstances. If an officer orders you to stop recording or orders you to hand over your phone, you should politely but firmly tell the officer that you do not consent to doing so, and remind the officer that taking photographs or video is your right under the First Amendment. Be aware that some officers may arrest you for refusing to comply even though their orders are illegal. The arrest would be unlawful, but you will need to weigh the personal risks of arrest (including the risk that officer may search you upon arrest) against the value of continuing to record. Whether or not you are able to record everything, make sure to write down everything you remember, including officers’ badge and patrol car numbers, which agency the officers were from, how many officers were present and what their names were, any use of weapons (including less-lethal weapons such as Tasers or batons), and any injuries suffered by the person stopped. If you are able to speak to the person stopped by police after the police leave, they may find your contact information helpful in case they decide to file a complaint or pursue a lawsuit against the officers. #policemisconduct #criminaldefense #blacklivesmatter #criminaldefensepittsburgh #criminallawyer

The Police Are At My Door When can the police enter your home? When police officers have search warrant or an arrest warrant, they do not need permission to enter your home. That said, they are required by law to “knock and announce” and wait for the homeowner to answer the door. However, when there is a warrant, police are only required to wait a reasonable period of time before forcing entry. Even without a warrant, there are many circumstances in which police may enter a home and search the premises. This includes: When there is reason to believe a person inside may be in imminent danger (due to criminal activity or because of medical needs). When illegal activity or contraband (i.e. drugs) are in “plain view”; this could be through a window or because the homeowner opened the door in response to police knocking. Sometimes an officer will be let in upon consent of the homeowner (“mind if we come in to speak with you?”) and then while inside notice something illegal in plain view. When there is probable cause to believe entry will uncover criminal activity or contraband. Examples include hearing screams for help or smelling marijuana. When there are exigent circumstances. This is an extension of probable cause that allows the officers to enter because they believe that the time needed to get a warrant could result in the suspect escaping or evidence being destroyed. Your rights and how to reduce risk to yourself You should not invite the officer into your house. Talk with the officers through the door and ask them to show you identification. You do not have to let them in unless they can show you a warrant signed by a judicial officer that lists your address as a place to be searched or that has your name on it as the subject of an arrest warrant. Consider using the new Siri shortcut “I’m getting pulled over”. It will dim your phone, pause any music being played, and start recording video from your front-facing camera. It can also send your current location and a copy of that video to an emergency contact, though you’ll need to confirm a few pop-up messages to complete these steps. Ask the officer to slip the warrant under the door or hold it up to the window so you can read it. A search warrant allows police to enter the address listed on the warrant, but officers can only search the areas and for the items listed. An arrest warrant has the name of the person to be arrested. Even if officers have a warrant, you have the right to remain silent. You should not answer questions or speak to the officers while they are in your house conducting their search. Stand silently and observe what they do, where they go, and what they take. Write down everything you observed as soon as you can. When your rights have been violated Write down everything you remember, including officers’ badge and patrol car numbers, which agency the officers were from, and any other details. Get contact information for witnesses. File a written complaint with the agency’s internal affairs division or civilian complaint board. In most cases, you can file a complaint anonymously if you wish. How to be a responsible bystander If you are a guest inside the house and end up answering the door, you should make clear to the police that you are a guest and do not have the authority to let them inside without the homeowner’s permission. #blacklivesmatter #criminaldefense #criminaldefensepittsburgh #criminallawyer

Your rights You have the right to remain silent. For example, you do not have to answer any questions about where you are going, where you are traveling from, what you are doing, or where you live. If you wish to exercise your right to remain silent, say so out loud calmly. (In some states, you may be required to provide your name if asked to identify yourself, and an officer may arrest you for refusing to do so.) Consider using the new Siri shortcut “I’m getting pulled over”. It will dim your phone, pause any music being played, and start recording video from your front-facing camera. It can also send your current location and a copy of that video to an emergency contact, though you’ll need to confirm a few pop-up messages to complete these steps. LegalShield members can call the Emergency Access line using the LegalShield app. You can advise the police that you are contacting your attorney. The police cannot listen if you call a lawyer. They can and often will listen to a call made to anyone else. You do not have to consent to a search of yourself or your belongings, but police may pat down your clothing if they suspect that you have a weapon. Note that refusing consent may not stop the officer from carrying out the search against your will, but making a timely objection before or during the search can help preserve your rights in any later legal proceeding. If you are arrested by police, you have the right to a government-appointed lawyer if you cannot afford one. You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country. (Separate rules apply at international borders and airports as well as for individuals on certain nonimmigrant visas, including tourists and business travelers.) How to reduce risk to yourself Stay calm. Don’t run, resist, or obstruct the officers. Do not lie or give false documents. Avoid making sudden movements, and keep your hands where the officer can see them. If you intend to move your hands from wherever they are, tell the officer what you intend to do before doing it, especially if you intend to place your hand in any pocket or inside of your jacket. What to do if you are arrested or detained Say you wish to remain silent and ask for a lawyer immediately. Don’t give any explanations or excuses. Don’t say anything, sign anything, or make any decisions without a lawyer. If you have been arrested by police, you have the right to make a local phone call. LegalShield members can call the Emergency Access line using the LegalShield app. You can advise the police that you are contacting your attorney. The police cannot listen if you call a lawyer. They can and often do listen if you call anyone else. If you believe your rights were violated Write down everything you remember, including officers’ badges and patrol car numbers, which agency the officers were from, and any other details. Get contact information for witnesses. If you’re injured, seek medical attention immediately and take photographs of your injuries. File a written complaint with the agency’s internal affairs division or civilian complaint board. In most cases, you can file a complaint anonymously if you wish. How to be a responsible bystander If you are with the person who is being questioned, you have the right to remain silent as well. You can ask if you’re free to leave. If yes, you may silently leave. Your friend may appreciate that once you step away, that you stand at a safe distance and, if possible, use your phone to record video of what is happening. As long as you do not interfere with what the officers are doing and do not stand close enough to obstruct their movements, you have the right to observe and record events that are plainly visible in public spaces Do not try to hide the fact that you are recording. Police officers do not have a reasonable expectation of privacy when performing their jobs, but the people they are interacting with may have privacy rights that would require you to notify them of the recording. In Pennsylvania, you have no obligation to affirmatively make people aware that you are recording them. That’s not the case in all states. You can check the rules of your state here. Police officers may not confiscate or demand to view your photographs or video without a warrant, and they may not delete your photographs or video under any circumstances. If an officer orders you to stop recording or orders you to hand over your phone, you should politely but firmly tell the officer that you do not consent to doing so, and remind the officer that taking photographs or video is your right under the First Amendment. Be aware that some officers may arrest you for refusing to comply even though their orders are illegal. The arrest would be unlawful, but you will need to weigh the personal risks of arrest (including the risk that officer may search you upon arrest) against the value of continuing to record. #stopandfrisk #policestop #criminaldefense #blacklivesmatter #criminaldefensepittsburgh #criminallawyer

Bankruptcy Helps Protect Your Stimulus Payment People who are overwhelmed by debt during the COVID-19 outbreak may want to consider filing bankruptcy but are concerned about whether filing will have an effect on their stimulus check. This is especially pertinent now as there is serious discussion in Congress about approving a second round of stimulus payments. We have some answers if you’re asking these questions. If I File for Bankruptcy, Will I be Eligible for a Stimulus Payment? Yes. There’s nothing in the current or proposed legislation that would disqualify persons who file for bankruptcy from receiving a stimulus payment. Will My Stimulus Check Be Taken in the Bankruptcy? It’s possible but very unlikely. According to a notice from the Justice Department, all Chapter 7 and Chapter 13 Trustees are limited in terms of what they can do with the stimulus payments. A stimulus check won’t be considered while calculating monthly income, and won’t be used in the calculation of disposable income that can be paid to creditors. This means receiving a stimulus payment won’t force an individual to repay a higher amount in bankruptcy than they would have if they hadn’t received it. You may be able to apply a cash exemption, a public assistance exemption, or a wildcard exemption to the stimulus payment. If no exemption covers the payment, however, or if you use applicable exemptions for other assets, you probably will need to relinquish the payment. There are rare cases where the stimulus payments might be considered property of the estate, meaning it can be included in the pool of assets designated to repay debt, but the designated Trustee would have to notify the U.S. Trustee prior to taking this action or refusing a chapter 13 repayment plan. Can My Creditors Access Stimulus Payments? When you file a bankruptcy case, an automatic federal court injunction (called the “automatic stay”) is issued prohibiting your creditors from starting any new or continuing any existing actions, including lawsuits, to collect on debts that they alleged you owe them prior the date you filed your bankruptcy petition.  This applies to mortgage lenders, landlords, credit card collection companies, auto loan lenders, etc. If a creditor violates the automatic stay by taking money from your bank account, including your stimulus payment, after your case is filed, you can get it back.  If the creditor refuses to cooperate, they can be subject to penalties in the bankruptcy proceeding. The enabling law for the stimulus payments does not protect stimulus checks from seizure by creditors or debt collectors outside of a bankruptcy. If the funds have been placed in a bank account, a creditor or debt collector may be able to seize them through a levy or garnishment before the debtor withdraws them. Thus, some debtors may choose to promptly withdraw their stimulus check funds from their bank accounts to cover essential expenses and record the items for which they used them. Note that a handful of states have instituted protections that prohibit debtors from seizing stimulus checks. Recipients of Social Security benefits may be able to protect their stimulus checks if the IRS places them in accounts dedicated to Social Security benefits. These accounts are generally shielded from collection efforts. When a Levy Happens Certain types of debt expose a debtor to a levy or garnishment of their bank account without prior court action. Common examples include tax liens, student loans, and debt owed to the financial institution that holds the account. Other types of debt, such as credit card debt, rent, and medical debt, cannot result in a levy or garnishment unless the creditor sues and receives a money judgment against the debtor. If you are not sure whether you have a money judgment against you, you can check court records and credit reports. If you find an old judgment against you, it may no longer be enforceable unless the creditor has renewed it. Sometimes a creditor might fail to comply with the statute of limitations in suing to collect a debt. This means that the creditor took too long to sue under the laws in your state. You can ask the court to dismiss the case if the creditor violated the statute of limitations. If a creditor has already seized your stimulus check through a levy on your bank account, you can potentially object to the levy. This requires prompt action, since most states require a debtor to object within 10 days or even sooner. An objection might claim an undue hardship or argue that state law exempts the funds that were levied from collection efforts. We understand the stress and sleepless nights that arise from difficult financial times. Our bankruptcy attorneys are ready to get you some relief and back on the path to good credit. FLG Bankruptcy Attorney: Matthew Bole, Esquire #debtrelief #bankruptcyattorneypittsburgh #bankruptcy #stimuluspayment #bankruptcypittsburgh #stimuluschecks #bankruptcyphilly #bankrtupcyattorney #covidcreditrepair

So you have decided upon the apartment you want to call home, the next step is to sign the apartment lease. Prior to signing a lease, however, you should make sure you ask the landlord and know the answer to these questions: The Essentials Make sure the rent you agreed to along with the start date and end date of the least term are correctly stated. Double check the address and apartment number. Check the date each month the rent is due. Make sure the security deposit amount is correct and keep in mind, one month’s rent as a security is customary. Inspections We highly recommend that you request an inspection of the apartment to document its condition before you move in. Take pictures during the walk-through and be sure to write down any damaged areas. Provide a copy of these notations to your landlord and retain a copy for your records. When you move out you can do the same. This will help assure a return of your full security deposit and avoid landlords unfairly blaming you for repairs. Look for Rent Payment Method In your lease your landlord should specify how they want to receive your rent, i.e. check, online portal, Venmo/PayPal. Additionally, familiarize yourself with the timeframe you have to pay your rent; it’s typically within the first five days of the month. You should time your payments so that they are received by the landlord by the due date. Do not count your payment as timely by the postmark date. If you do not pay within this time, you may incur fees, which should be specified in the lease. Utilities Some landlords—especially in buildings where apartments aren’t separately metered or sub-metered—may include utilities in the monthly rental price. But usually only the water and heat are included. Ask what is included, and make sure the lease clearly states who is responsible for which utilities. Renewal Clauses and Renewal Policies If your lease has an option to renew for one or more years, check to see if there is an escalation clause that would raise the rent in subsequent years and is typically based on a fixed dollar amount, a percentage of the first year’s rent, or cost of living increases. If you are planning to be in the apartment for more than a year, consider negotiating the renewal rate in advance. Pets Not everyone loves animals, and having a dog or a cat can be a potential obstacle—especially if you plan on getting one after you move in. If this is the case, make sure the lease explicitly acknowledges this so the landlord won’t withhold consent when you decide to bring home your new best friend. Where can you park your car? You should confirm parking, number of spaces, and costs (if any). Also, find out about guest parking and how parking is enforced if someone takes your spot. Insurance The landlord’s insurance does not, despite what many people believe, cover the tenant. The tenant must insure their own property against fire, theft, and water damage, and also must carry their own personal liability coverage, which protects you if you are sued for negligence—starting a fire that destroys part of the building or, more commonly, letting a tub or sink overflow and damaging the apartment below. Some leases require that you have renters insurance. In either case, its prudent to purchase this insurance. How much notice is required to move out? Every building has its own policy regarding termination notice. Most landlords require you to provide a full sixty calendar day notice. This allows time for the landlord to obtain a new tenant. Landlords typically require that notice be in writing and many require that the notice be sent certified mail in order to eliminate any dispute as to the date notice was given. Landlords typically use the mailing date as the start date, but the tenant should check to make sure the start date is not based on delivery/receipt of the notice to the landlord Subletting, Roommates, and Visitors Most standard leases require landlord approval to sublet, so you will likely need the landlord’s consent to sublet. However a landlord cannot unreasonably withhold consent. You are still financially liable for the entire rent. If your subtenant doesn’t pay, you still need to pay. Your landlord may also charge a subletting fee. Know that if you make any deals with a roommate, such as their agreeing to pay more for a larger bedroom space or to use their security deposit for the last month’s rent, it’s up to you to get that in writing separately from the lease with your landlord. Bonus: Have Your LegalShield Attorneys Review Your Lease Before You Sign Send your proposed lease to Fiffik Law Group. There are specific laws that apply to residential leases in Pennsylvania. Our lawyers can evaluate whether you lease complies with applicable law. We will review it and call you to answer your questions and suggest changes to the lease.

Bankruptcy is complicated, and trusts are complicated. When the two mix, it is a recipe for disaster for those without legal representation. At Fiffik Law Group, we believe in providing access to justice for all, and believe that nobody should have to go at it alone. When a bankruptcy court unjustifiably went after a Beaver County, Pennsylvania man who had already declared that he had nothing, Fiffik Law Group Attorney Matthew Bole came to his defense. He prevented over $70,000 from being collected while also managing to save everyone involved from going through an expensive trial. When someone files for bankruptcy, the bankruptcy court assigns a trustee to oversee the debtor’s estate. This trustee is essentially a manager who ensures that the entities the debtor owes money to are represented and considered. He or she confirms that all paperwork is accurate and complete, there are no undervalued assets or undisclosed income, no property has been fraudulently transferred, etc. The trustee then makes recommendations to the court based on his or her findings. In this case, the trustee found out that the person who filed for bankruptcy was a beneficiary of a trust, so they filed an Adversary Proceeding in an attempt to collect over $70,000 from the trust. A trust is a fiduciary agreement that is part of an estate plan, typically used to hold assets for beneficiaries and ensure they are distributed according to the trustor’s wishes. An Adversary Proceeding in Bankruptcy Court is a separate lawsuit as a result of a complaint filed. Attorney Bole successfully defended against the bankruptcy trustee’s complaint. This trust was specifically written so that if a beneficiary filed for bankruptcy, the trustee of the trust was no longer required to pay income to the beneficiary. This portion of the trust is known as a spendthrift provision, which is designed to protect the beneficiaries of the trust against themselves and their creditors. This means that in cases like this where the beneficiary files for bankruptcy, it makes things much more difficult on the creditors to collect from the trust After Attorney Bole presented his defenses, including the spendthrift provision, the bankruptcy trustee voluntarily withdrew its complaint, and the case was dismissed. Attorney Bole not only saved the trust’s beneficiaries $70,000, but also the additional attorney fees they would have incurred if the case had gone to trial. This is one of many examples of how complex trust administration can be and why it is so important to have a properly drafted trust and for the trustee to have experienced representation. The experienced attorneys at Fiffik Law Group can help you handle any issues that arise in the drafting and administration of your trust. We will help you understand the sometimes confusing and complex language of the trust (like the spendthrift provision) and ensure the intent of the trust is followed – whether that is maximizing the amount of money that stays inside of it or otherwise. Contact us today for a free initial consultation.

You’ve probably heard the word “hearsay” in connection to the January 6 committee hearings or other high profile court cases, but what is hearsay evidence? People often use hearsay to mean something like “secondhand information.” But in the courtroom, hearsay is a term of art with a specific legal meaning. It’s one of the most important rules of evidence. It’s also one of the most complicated. HEARSAY: THE BASICS Verbal and written statements are commonly offered at hearings and trials to prove facts at issue in a case. Courts are required to exclude certain statements from evidence when they were made by parties not present to testify at the trial or hearing. These statements are referred to as “hearsay.” Hearsay is: (1) a statement that the declarant (i.e. the person making the statement) does not make while testifying at the current trial or hearing and (2) is offered to prove the truth of the matter asserted. Anytime a witness testifies to what another person said, and offers it as proof that what that other person said is true, then that evidence is being offered to prove the truth of the matter asserted. For example, in a family law hearing, Henry wants to testify that his wife’s mother, Mrs. Smith, stated that she saw his wife, Wendy, hit their child. Since Mrs. Smith is not present during the hearing and Henry is testifying to what Mrs. Smith said, this testimony could be hearsay. If Henry is offering Mrs. Smith’s statement as proof that Wendy hit their child, then it is hearsay. Henry is not the proper person to testify about what Mrs. Smith said. Mrs. Smith must testify to what she observed. There’s a few parts to this, so let’s take it piece by piece. First, it’s important to note that the type of statement that may be excluded as hearsay includes a person’s oral (verbal) assertion, written assertion, or nonverbal conduct that is intended as an assertion. The second part just means statements made outside of court. We normally exclude hearsay because the declarant is not present to have their credibility assessed by the jury. In addition, the opposing party in the case does not have the ability to test the accuracy or validity of the statement by cross examination. One nuance to the hearsay rule is that statements made by the opposing party in the current case are not hearsay. These statements are referred to as admissions and are admissible in court so long as the admission is being used against the opposing party. Thus, if Wendy ever admitted to hitting the child, Henry could introduce Wendy’s admission into evidence and use it as proof that she did, in fact, hit the child. WHAT IS THE SIGNIFICANCE OF EVIDENCE BEING HEARSAY? In general, hearsay evidence is admissible in court except when one party objects to the evidence. So, if one side tries to offer hearsay evidence, the other side can object and ask the judge not to allow the evidence. If the judge determines the evidence is hearsay, the judge will not allow that evidence to be admitted (unless there’s an exception, which is discussed below). If there is no objection to the evidence, the court will not act on its own to disallow it. Proper objections to hearsay evidence can be the difference between winning and losing the case so it has significant importance. If somebody is making statements that are damaging to your case, you want to be able to cross-examine them to test the reliability of those statements and the trustworthiness of the person making them. You can’t do this unless that person is in court under oath. A lie can be debunked under cross-examination, but even an egregious lie is difficult to rebut with no opportunity to confront the liar. But sometimes, this isn’t as important. EXCEPTIONS TO THE HEARSAY RULE Hearsay is subject to numerous exceptions. That is, in certain situations, a statement may be admissible even if it is technically hearsay. Some exceptions apply only when the declarant is not available to testify as a witness. However, the first set of exceptions below operate regardless of whether the declarant is available. Thus, for any statement that meets the requirements of these exceptions, a witness may testify to the statement, even when that witness is not the declarant and the declarant can be brought to court. (1) Present sense impressions are statements that explain an event or condition. These statements are made while the declarant immediately perceives the event or condition, or immediately after. For example, a witness may properly testify to being a passenger in a vehicle and hearing the driver say “I’m driving way too fast right now” because this statement was made while the driver was perceiving the driving. (2) An excited utterance is a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. A witness screaming, “Oh my gosh, that car ran a red light!” directly after observing a car accident, is an example of an excited utterance. However, if that same witness makes this same statement five days later, then the statement was not made under the stress of excitement from the accident and is not an exited utterance. (3) A statement of then-existing mental, emotional, or physical condition expresses the declarant’s then-existing state of mind. The statement may express motive, intent, plan, emotion, sensory perception or physical condition. This exception does not apply to a statement expressing a memory or belief. Just like the present sense impression and excited utterance exceptions, a statement of then-existing mental, emotional or physical condition must be made close in time to the related event or condition. A statement such as, “I am scared,” expresses a state of mind. The statement, “I remember being scared when the dog approached me,” expresses a memory that, if testified to by someone other than the declarant, would not fall within this exception. (4) The exception made for records of a regularly conducted activity is commonly referred to as the “business records exception.” This exception is used to admit written statements of an act, event, condition, opinion or diagnosis. The record must be made and kept as part of the regularly conducted activity of a business, or organization. Police reports are another common example of a business record. However, a statement from a witness contained within a police report may not necessarily be admitted simply because the report itself qualifies as a business record. This presents the problem of ‘hearsay within hearsay’ where the hearsay document (the report) contains another layer of hearsay (a witness statement). To be admissible, each layer of hearsay will need to fall within an exception. For example, a witness may make a statement in a police report while still under the excitement of the event covered in the report. The police report can be admitted as a business record and the statement from the witness may be admitted as an excited utterance. OTHER RULES OF EVIDENCE STILL APPLY It’s important to remember that the hearsay rule is only one rule of evidence among many. Therefore, evidence can be admissible under the hearsay rule, but kept out under another rule. For example, evidence must be relevant to be admissible. So an out of court statement that fits into a hearsay exception may nonetheless be inadmissible if it’s not relevant to the case. In short, the hearsay rule is an important rule of evidence, but it is not the only rule of evidence. Determining whether a statement is hearsay is only one step in determining whether that statement is admissible in court. WHAT THE HEARSAY RULE MEANS FOR YOU The courts have developed the rules of evidence over hundreds of years, often with controversy, but always with a single goal: to have before the judge, jury or arbitrator evidence that is not pure statements of belief or opinion unless the person is an expert. While many laypersons are frustrated by the rules, there is little question that it allows the parties to proceed with their cases without fear that testimony that they cannot possibly question or attack is entered into evidence. If one studies the transcript of trials in authoritarian regimes one quickly notes that the ability to cross examine witnesses is seldom allowed the accused. Such regimes recognize that the essence of effective defense is an objective trier of fact and the ability to present a vigorous and appropriate defense. Eliminate the ability to cross examine and you have gravely hampered effective representation. The hearsay rule is thus central to the proper operation of truth seeking in the courts.

We’ve handled enough contractor disputes to know that if you want to enhance your chances of a successful project, you must actively manage the process. Lack of communication and inattention to detail are common problems with home improvement projects that have gone bad. Here are seven smart ways to stay on top of the job and maintain strong communications with your contractor and construction team. Read the Contract The law requires your contractor to provide you with a written contract. If your contractor is giving you only a verbal quote or a simple estimate, that’s not enough. The contract must include at least the following: the approximate starting date and completion date for the work; a description of the work to be performed, the materials to be used and a set of specifications that cannot be changed without a written change order signed by the home owner; the total sales price due under the contract; the toll-free number of the Pennsylvania Bureau of Consumer Protection; the three-business-day notice of the right of rescission pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law; and cannot require a deposit of more than one-third (1/3) or less of the contract price in home improvement contracts in excess of $1,000, plus any special order materials. Its very important that you read and understand the contract. Think about the various steps and parts of your home improvement project and how the contract provisions apply to those parts. Read more:  Know Your Rights Set Expectations Setting proper expectations is one of the best ways to avoid ill-will between you and your contractor. Good things to discuss up front include: Get an estimated project schedule up front.  What work will be done when.  This helps you determine how well thought-out the project is by your contractor.  If he cannot give you a good estimate of the schedule up front, it may signal that you’ll have unwelcome delays. When he plans to start and conclude his work each day. Who is in his crew and that you should expect to be in your home. The location where materials and equipment can be stored when not in use. Level of clean up and cleanliness that you expect. Use of your bathrooms. Establish Good Communication Ask the contractor how he prefers to communicate with you. Good options include: Being onsite and talking with your contractor every morning before work begins. Having your contractor’s cell phone number and the OK to call or text anytime. Set expectations on your respective response time to one another’s texts and calls. Talking with the job foreman every day at a pre-determined time. Try to meet or communicate with the contractor at least once a day. This is an opportunity for you to hear progress reports and find out what work is scheduled over the coming days — and to ask your questions and voice any concerns you have. Keep a Project Diary Your project diary is your friend and ally. Use it to: Record progress. Note things you want to ask your contractor. Take lots of pictures of the work progress. Jot down ideas. Note who was on the project on a daily basis. Note arrival and departure times by workers. Note upcoming delivery dates. A diary helps keep communication clear, and provides a record of who said what when — which could help you resolve disputes later on. Track All Changes in Writing Your contractor may encounter unforeseen issues, or you may decide to include additional work as the project evolves. Any good contractor can handle these changes — just make sure that he quotes them in writing first. Specify in your contract that you want changes (often called a “change order”) in writing for anything that’s going to add to the bottom line of the job. That means the contractor must give you a description of the change and a fixed price for what it’ll cost. You both must sign the change order before the work is done. Check the Work Be proactive about checking your contractor’s work. A good time to check is when the crew has left for the day. Make notes in your project diary and bring up anything you’re wondering about during your daily check-in with your contractor or job foreman. You can: Compare the model numbers on appliances and fixtures against your receipts, invoices, and the contractor’s bid to ensure that the right product was delivered. Check the work against the drawings or blueprints. Note any quality issues, such as misaligned trim, misaligned seams in grout, etc. You’re the customer; you have the right to expect good work. Pay Only for Completed Work Your remodeling contract should establish a series of payments to be made when certain aspects of the job are completed. For example, your contract could stipulate that you’ll pay in three equal installments, with the last payment to be made after the project is complete, and after you and your contractor agree the work is satisfactory. Never put down more than more than one-third (1/3) or less of the contract price in home improvement contracts in excess of $1,000, plus any special-order materials. Its unlawful for your contractor to ask for more than that. Before you sign off and make the final payment, check that: all work meets the standards spelled out in the contract you have written warranties for materials and workmanship you have proof that all subcontractors and suppliers have been paid the job site has been cleaned up and cleared of excess materials, tools, and equipment you have inspected and approved the completed work When Disputes Arise, We Can Help Our construction and civil litigation attorneys have represented homeowners and contractors in contract dispute matters for over 30 years.  Our highly qualified contract dispute lawyers have the expertise you need to resolve a financially destructive contract dispute, no matter how challenging achieving a satisfying resolution may seem.  Over our many years litigating Pennsylvania contract disputes, we have helped hundreds of clients to reach positive results.

Have you ever wondered why you need a title search before buying a home or why you buy title insurance? Your home may be new to you, but every property has a history. Title problems can turn a home that you bought for $250,000 into one that’s worth $1. A thorough title search can help uncover title defects tied to your property BEFORE you buy. And, subject to the terms of the policy, your title insurance provides protection for you from title problems that may become known after you close your transaction. Title problems are more common than you think. Some of these common title issues are: 1. Errors in public records: To err is human, but when it affects title to a property, those mistakes can be devastating. Clerical or filing errors could affect the deed or survey of your property and cause undo financial strain in order to resolve them. One of our clients almost lost the sale of her home because of a prior mortgage that was paid but never satisfied by a now-bankrupt mortgage company. She had to spend thousands to get the mortgage lien satisfied, almost losing the buyer of her home in the process. 2. Unknown liens: Prior owners of your property may not have been meticulous bookkeepers – or bill payers. And even though the former debt is not your own, banks or other financing companies can place liens on your property for unpaid debts even after you have closed on the sale. We found this issue for a client who retained us to assist with a home purchase. We found old tax bills that were unpaid – much to the surprise of the seller. Without a careful title search, these old tax liens would have become our client’s problem had she bought the home without having the old liens resolved at closing. Sadly for the seller, someone had missed the old tax debts when he was buying the home and they became his problem. 3. Illegal deeds: While the chain of title on your property may appear perfectly sound, it’s possible that a prior deed was made by an undocumented immigrant, a minor, a person of unsound mind, or one who is reported single but in actuality married. These instances may affect the enforceability of prior deeds, affecting prior (and possibly present) ownership. We’ve had to handle many closings where we’ve had to track down a former spouse to sign off on a deed – a very nettlesome call to make, indeed. 4. Missing heirs: When a person dies, the ownership of their home may fall to their heirs, or those named within their will. However, those heirs are sometimes missing or unknown at the time of death. Frequently we see homeowners pass away without a will and their children, living with them at the time of death, remain in the house for years without resolving the parents’ estate. These scenarios may affect you’re the heirs’ right to the property and ability to sell the property. 5. Undiscovered encumbrances and easements: At the time of purchase, you may not know that a third party holds a claim to all or part of your property – due to a former mortgage or lien, or non-financial claims, like restrictions or covenants limiting the use of your property. An unknown easement may prohibit you from using it as you’d like, or could allow government agencies, businesses, or other parties to access all or portions of your property. Easements turn up frequently in title searches – and are often not disclosed to unwary buyers. Easements and encumbrances can have a huge impact on the value of property. We are currently two years, and many thousands of dollars, into litigation for one client over easements on his property. Play it Safe. You would not buy a home without first having a home inspection, right? That’s obvious. It also makes sense to “inspect” the title. Title problems can be the most costly problems to fix – far more than a faulty furnace or hot water heater. When you buy a home, make sure that a title search has been done AND that your closing agent discusses the results with you. It’s your right AND you’re paying for it. Protect your investment with quality title insurance as well. Fiffik Law Group, PC provides a full range of services to residential and commercial buyers and sellers. Contact our experienced real estate attorneys today.