What is Probate?

When a loved one passes away, the details can be overwhelming. Those left behind are suddenly confronted with a myriad of strange vocabulary to learn and figure out what to do with. One common word that you’ll begin hearing is “Probate.” So, what is probate, and do you need an attorney to help you with it?

Probate is the process of filing the will of a deceased loved one with the court, gathering their assets, paying off their liabilities, filing taxes, and closing out their estate. Simply put, probate is the court process that oversees the administration of an estate.

probate

The Purpose of Probate

The purpose of probate is to ensure that all of a deceased loved one’s debts are paid, and to make sure that their assets can be passed to their loved ones (“beneficiaries”) without any legal liability passing to their beneficiaries.

The Requirements of Probate

Probate requires that debts are paid in a certain order pursuant to a Pennsylvania statute, and limits the types of claims that can be brought against the person who has passed away. Probate also requires filing of tax returns to pay the Inheritance Tax for those who receive an inheritance from the person who passed. Usually, the estate pays this tax to avoid beneficiaries being saddled with the bill, although this depends on the Will.

Navigating the Probate Process

The Probate process can be confusing and, because it can be expensive, it is not always necessary to go through. A good Estate Administration Attorney will help you to see if there is any way to avoid the probate process altogether, as well as the fees and costs associated with it. However, in many cases, probate is required and is unavoidable.

If you know someone who has recently passed and you are trying to figure out how to administer their estate, call the Cornerstone Law Firm for a free consultation. We’ll be happy to sit down with you and discuss your options and to figure out the best way to administer your estate.

Default Judgment

When you fail to respond to a lawsuit filed against you, the court will grant the other party whatever relief they were seeking in their Complaint. This is known as a “default judgment.” In this post, we’ll discuss default judgments, and what you can do if you’ve found yourself dealing with one.

How Defaults Occur

When you’ve been served with a lawsuit, you typically have about thirty days to respond to that lawsuit (although this time varies depending on whether you are in state or federal court). If you don’t respond during that time, judgment will be entered against you in the amount of money claimed in the Complaint.

So, for example, if the complaint asked for $100,000, and you declined to answer, the court will assume that you had no problem with a $100,000 judgment entered against you. Admittedly, this is unlikely with a number that high, but there are plenty of times that someone may not really care about a complaint against them, because they figure the judgment is too small to fight about. They would rather give up, pay the amount to the person that holds the judgment, and move on with life.

The more common reason for a default judgment, however, is that the Defendant never learned of the lawsuit. For example, in some cases, the lawsuit may not have been properly served. In a common example in Pennsylvania, the person may have been served with a “Writ of Summons” which merely told them they were being sued but did not tell the Defendant what they were being sued for.

Unfortunately, many people allow these to simply sit around for a long time. One day, the Plaintiff mails the Defendant a Complaint or, in some cases, doesn’t mail it and claims that they did, and a default judgment is entered. The default judgment acts just like any other judgment. Once entered, it has binding effect on you and can be used to execute against your possessions. It is a serious and important problem, and you should act quickly upon learning of the judgment in order to avoid forfeiting any more of your rights.

When the judgment is entered, it has binding effect on you and can be used to execute against your possessions. It is a serious problem, and you should act quickly upon learning of the judgment in order to avoid forfeiting any more of your rights.

When No Money is Claimed

Many Complaints never state a claim for a precise amount of damages, however. There is no rule requiring that a Plaintiff calculate their precise damages when they file a suit. Many times, damages are determined during the course of discovery and trial.

Accordingly, most Complaints are filed without a specific claim for the amount of damages at issue. In this case, the Court will award judgment on liability, and then will set a trial for damages. Discovery and other processes will ensue to aid the parties in determining exactly how much is claimed.

Conclusion: Don’t Sit on a Default Judgment

If a default judgment has been entered against you, don’t ignore it. You may be able to move to have the judgment re-opened. In other cases, you may be able to limit the amount of damages, even if the default is irreversible. What you should not do is wait.

Contact an attorney at Cornerstone Law Firm today to discuss your case.

What is a Concurring or Dissenting Opinion?

It’s relatively frequent in the news that you hear about a “concurrence” or “dissent.” What does it mean when a Justice of the Supreme Court of the United States or a Judge of another Court issues a concurring or dissenting opinion?

To understand this, we have to look at a brief history of how higher court opinions came to be the way they are today in the United States.

Seriatim

In the early nineteenth century and before, the judges of higher courts (such as the Supreme Court) would issue their opinions “seriatim” (Latin for “separately”). This means that each judge would issue their own opinion about the case that had come before them, and it was up to the reader to figure out which opinion was the controlling, majority opinion to be followed in future cases.

Of course, sometimes this was difficult to do because judges about the same case may come to the same conclusion different ways or to slightly different conclusions. This was a confusing state of affairs, and it made it very difficult for lower courts to know which rule or which judge’s opinion they were supposed to follow.

When Chief Justice John Marshall joined the Supreme Court, he implemented a new policy whereby there was one Majority Opinion that was voted on or agreed to by the rest of the Justices who had voted in favor of the winning rule. Any other Justice was, of course, welcome to write their own opinion, either in support of the final judgment or expressing their displeasure with it. And thus, concurring and dissenting opinions were born.

What We Learn from Concurrences and Dissents

Today, concurrences and dissents carry no legal weight. They are typically not cited by lawyers in briefs arguing before any court, because they do not carry the force of law. They are however, persuasive in some cases, and especially so if written by a judge who has a good reputation among other judges and lawyers.

But primarily, concurrences and dissents tell us what the Justices think about an area of the law, and they often contain valuable clues as to what other cases they’re looking for, and what areas of law they wish to influence. Accordingly, these are heavily studied by appellate lawyers (that is, lawyers who handle appeals from a lower court judgment to a higher court), in determining what sorts of challenges in future cases might be appealing to one Judge or another.

This article has been part of our ongoing series about appellate law—the way in which lawyers and judges shape and influence the law by arguing before courts of appeals. If you have an appellate matter you wish to have reviewed, contact us today for a free consultation.

May 2019 Recap

Last month was a busy one for the Cornerstone Law Firm team. Attorney Crossett attended several Landlord-Tenant Hearings and helped evict tenants who were not paying rent or who had made dangerous advances against other residents of apartment complexes.

Attorney Ready helped to secure an Order for Possession of Property for a client that buys and sells real estate so that they could take possession of property that was being lived in by someone else. In addition, Attorneys Ready and Crossett handled several real estate agreements, and a real estate closing in our Blandon office.

Attorney Ready handled a jury trial for a client accused of Aggravated Assault with a Deadly Weapon, and received a verdict of Not Guilty on all counts. In addition, Attorney Ready negotiated favorable sentences and agreements for other clients.

In the middle of the month, the Cornerstone Law Firm team celebrated the Firm’s anniversary on May 21st. We continue to be grateful to Berks County residents for their business and support of our local work, and we’re honored to have the trust of clients all over the state and the country.

Our travels this month have taken us from Schuylkill, Lehigh, and Berks counties all the way out to Allegheny County this month, and has included appearances in a Maryland Court as well.

If you have need of legal services, we welcome your call to discuss your case.

Hail Damage

Hail storms, like the one we just experienced here in Berks County, Pennsylvania, can cause a surprising amount of damage in a very short time. Unfortunately, insurance companies often go out of their way to avoid paying for hail damage by pointing to various exclusions in contracts or otherwise claiming that the damage cannot be covered under the policy for one reason or another.

If you’ve sustained hail damage to your home or other property, here are a few things to consider in dealing with an insurance company on your damage claim.

Pennsylvania Law Requires that Insurance Contracts Be Conformed with the Reasonable Expectations of the Insurance Purchaser

If you purchased insurance on your home, the typical process is that you requested a policy, paid money in advance, and then received a massive stack of insurance documents in the mail. Unfortunately, what often happens in these situations is that the insurance policy that you received in the mail and maybe never even read, included all sorts of “exclusions” which limit your ability to recover in the event of hail or certain other natural disasters.

The Supreme Court of Pennsylvania and other Courts within the Commonwealth have grown skeptical of this practice of insurance companies, because it essentially acts to change the contract between the insured and the insurer. If you believe you are purchasing comprehensive coverage and the insurance company put exclusions to that coverage in the policy, courts will often ask whether you reasonably purchased that exclusion in the policy or whether the exclusion was an ineffective attempt by the insurance company to add it in after the contract had already been formed.

Some of these holdings have been called into question in recent years, and if all of this sounds a little bit complicated, don’t panic. The point is simple: just because an insurance company says there’s an exclusion in the policy that prohibits you from recovering from hail damage, that doesn’t mean the exclusion is necessarily legally binding.

You Are Entitled to Independent Valuation of the Damage

Another method that insurance companies sometimes employ to reduce the value of the claim that they have to pay out is by claiming that their adjuster’s evaluation of the damage is final and binding. This is not the case. You are entitled to have your own appraiser look at the damage and give you an assessment.

The proper value of hail damage may be difficult to determine, but having more than one opinion in regards to the damage can be helpful. In many cases, insurance companies and their claims adjusters do a good job of assessing the damage. In that case, there’s no need to pay for an appraiser.

But just keep in mind as you have your discussions with an insurance company that you’re entitled to your own second opinion if you wish to pay for one.

The Value of the Damage May Be Reduced by the Age of The Roof or Other Property Involved

Most insurance policies provide that the value of replacing the roof must be diminished by the percentage of a typical roof’s lifespan that has elapsed on the house.

In other words, if you have a thirty-year roof on your house and your twenty years in to the thirty-year roof when the hail damage occurs, the insurance company will only pay out a third of the value of a new roof. This is generally a valid limitation, but it depends on circumstances and the precise policy language involved.

Conclusion

At Cornerstone Law Firm, we deal with insurance companies every day. Our attorneys have experience in negotiating and litigating the proper amount of insurance pay-out on damages.

If you feel you’re not getting the proper value on your insurance claim, call our attorneys for a free consultation on your case.

Defendant Not Guilty on Aggravated Assault Charges in Berks County Court of Common Pleas

Last week, on May 21st and 22nd, Attorney Joel Ready defended an individual accused of Aggravated Assault with a Deadly Weapon in a case arising out of an incident in Hamburg, Pennsylvania.

The two-day trial involved nine witness’ testimonies and resulted in a favorable determination of Not Guilty to all six charges.

The Case

court of common pleas
Berks County Court of Common Pleas

The charges against the Defendant arose out of an alleged pitchfork attack in Hamburg, Pennsylvania. The Defendant faced aggravated assault, simple assault, reckless endangerment of another person and terroristic threats. After approximately an hour of jury deliberations, the Not Guilty determination was entered for the Defendant. The case was heard in front of Judge Paul M. Yatron in the Court of Common Pleas in Reading, Berks County, Pennsylvania.

“We are delighted at the outcome on behalf of our client,” says Joel Ready. “We are glad that Omar was completely vindicated in regards to these charges.”

Call Cornerstone Law Firm

Results for one client are not necessarily an indication of how your case would come out, of course, and nothing in this blog can be seen as a guarantee of anything in a different case.

But if you’ve been charged with a crime, call Cornerstone Law Firm, so that our trial attorneys can help you determine how best to defend your case.

I Missed Work Because of My Car Accident: Does Somebody Have to Pay for That?

After you’ve been in a car accident, there are a lot of details to figure out. In addition to payment for medical bills, surgeries, rehab and so many other things, many victims of injuries find themselves asking, “Who’s going to pay for the time I missed from work?”

Lost wages are a significant component of the cost of a car accident to the injured party. Lost wages from time off from work can result not only in the immediate aftermath of the injury but far down the line, as well.

Lost Time and Wages

Whether attending doctors’ appointments, going to repeated rehabilitation sessions, having consultations with orthopedic specialists, and even in some cases, attending court proceedings arising out of the accident, car accidents result in lost time and wages.

In all of these instances, the wages lost should be calculated as part of the damages that the insurance company is required to compensate you for as a result of your accident. In some cases, insurance companies will tell the injured party that they are not entitled to compensation for lost wages. They may give the victim of an injury a hard time about claiming lost wages, particularly where someone’s job makes wages a little harder to calculate.

For example, a salesperson who is no longer able to do the physical demands of a job, such as getting up on a roof or otherwise doing physical labor to determine the appropriate amount to quote on a job, may see their earnings diminish significantly. Yet an insurance company may claim that these damages are speculative or that they cannot be appropriately quantified.

In another example, an individual who loses out on seasonal overtime pay or a second job for a holiday weekend may be told that they can’t claim these damages from insurance.

Maximize Your Appropriate Recovery

Insurance adjusters are paid to keep your damages at a minimum after a car accident. Shouldn’t you have attorneys on your side to maximize your appropriate recovery?

If you’ve been injured, call the Cornerstone Law Firm to speak with one of our personal injury attorneys. The consultation is free, and we don’t get paid unless you get paid. Call us today to discuss your case.

Breach of Contract Damages

Whenever you sign a contract, you hope that the other party will fulfill their obligations that they’ve agreed to. Unfortunately, that doesn’t always happen. So, when someone else breaches a contract, what are your rights if you decide to pursue litigation? What will a court award you in damages at the end of a lawsuit?

Today on the Cornerstone Law Firm blog, we discuss what you’re entitled to after a breach of contract in Pennsylvania. But before we begin, we should dispel a common myth. Just because you have a contract with someone doesn’t mean you can actually make them perform it! It is very rare that a court will order “specific performance,” requiring the other party to carry out their obligations under the contract.

Instead, courts prefer to award “economic damages” (that is, money). They’ll give you money corresponding to the value that you “lost out on” under the contract. As simple as that may sound, there are actually several competing ways to calculate damages.

1. Compensatory Damages: What you lost

The primary method of determining damages under a breach of contract is compensatory damages. A court will award damages based on the amount of money that you lost pursuing the contract in order to attempt to make you whole.

breach of contract

So, let’s imagine a scenario when your company spent $400 buying products for a job and sent out workers for two days to start working on the job before the other party breached the contract. When you realized that the other party performed none of their obligations, you stopped work, reassigned your workers to other projects, and moved on with business.

If you prevail, the court will order the breaching party to pay you $400 for materials, and will attempt to calculate the value of the lost labor and time that you invested in the project. In construction contexts, you may also be able to claim some of your overhead under what is known as the Eichleay formula, which measures office overhead and other costs that often go unnoticed in contract disputes. All of this can be included, depending on the circumstances of your case.

2. Expectation Damages: What you should have earned

Another method the courts sometimes use in awarding damages under a contract is known as “expectation damages.” A court will figure out how much you expected to profit under the contract and award that amount to you. So, if you expected that you would spend $600 on a job and that you would earn $1,600 on a job, the court will award you $1,000 in damages.

Expectation damages deal with profit—and that can be hard to calculate. In addition, courts avoid awarding damages for the potential reputation boost a particular job would have been, although it can still be relevant in some instances.

breach of contract

Imagine that a dress designer agrees to design a dress for a movie star’s appearance on the red carpet. The dress designer is excited to earn $1,000 in profits on the job, but is more excited that this job will launch her into a new stratosphere of design jobs when the movie star appears on the red carpet.

If the movie star breaches without excuse, the designer will recover $1,000, but is not likely to succeed in acquiring damages for the loss of expected sales had the movie star worn her dress. Courts seek to provide what is just—and expectation damages may not include every “expectation” you had for the job. Rather, expectation damages seek to provide what you lost out on.

3. Punitive Damages: Punishing the breaching party

In some instances, a court is willing to award punitive damages. Punitive damages punish wrongdoers conduct and are meant to be a warning to others not to do the same.

However, punitive damages are very rare. In American Law, courts do not like the idea of punishing wrongdoers in a civil context. Indeed, the free market system even encourages breach of contract where the breach of contract will be more efficient for the parties involved. Punitive damages are only awarded for wanton or reckless conduct.

“Punitives,” as they are often called, require a showing that the breaching party did something far worse than make a business decision. They must have engaged in fraudulent or abusive conduct, or have acted with malice. Accordingly, punitive damages are rarely awarded. Indeed, even if a contract calls for punitive damages in the event of breach, these provisions will generally not be upheld.

4. Liquidated Damages: We’ve already agreed how much this is worth

In some instances, contracts specifically name the amount of money that the parties expect to lose if the contract is breached. Particularly in situations where there’s a complex construction job, where damages may not easily be measured, the parties will agree to write in the amount of value that each party expects to lose if the other breaches at a various stage of construction.

Courts are wary of these provisions fearing that they may become a back door punitive damages provision. Accordingly, there are a number of factors courts will analyze when looking at a liquidated damages clause in a contract to determine whether it should be upheld and applied in a specific situation.

Liquidated damages can make litigation more efficient, skipping over complex wrangling over which form of damages should be awarded. But, in some instances, they can backfire as they create an unfair incentive for a party to breach a contract at a point where the liquidated damages would actually be less than the value that the party would be losing.

Quantum Meruit: The value of what you produced

Quantum meruit is a Latin term meaning “the value that has been earned.” In other words, even in the absence of a contract, your work has created some sort of value toward the other party.

When it comes to quantum meruit, the court is acting in an equitable capacity in attempting to measure the value of what you created for someone else. Quantum meruit comes into play where a contract is illegal because it contains provisions that are statutorily unenforceable, or where the contract doesn’t help in interpreting the actual situation that has arisen.

At the end of the day, you really don’t usually want to be in a quantum meruit world. It’s usually best if you’re prevailing on pure contract grounds.

Conclusion: Damages are unique to the case

Which sort of damages should you seek in your initial complaint? How can you protect yourself if you’re quoting a job or drafting a contract, in order to make sure that a breach does not end up leaving you in financial peril?

Contact the litigation attorneys at the Cornerstone Law Firm. We’ve helped many clients deal with the difficulties of figuring out the appropriate measure of damages in their cases, and we can help you too. Call us today!

Civil Forfeiture Can Lead to Injustice

A recent article in WITF, a central Pennsylvania news organization, addressed a growing issue in Pennsylvania – asset forfeiture abuse.

Cornerstone Law Firm Attorney Joel Ready was interviewed in the WITF article:

Berks County defense lawyer Joel Ready, who has represented clients whose belongings have been seized through civil forfeiture, said this thinking turns the U.S. Constitution on its head.

“Anybody who had $500 taken out of their pocket by the government and told, ‘Well, you’re going to have to prove that you didn’t do anything to get this back,’ is going to understand that this is a profound injustice,” Ready said. “Most people can’t afford to hire a lawyer to come in and get that money back.”

Read the full article here.

How Much Time Do I Have to Answer a Lawsuit in Pennsylvania?

If you’ve been served with a lawsuit in Pennsylvania state court, you have 30 days to respond to the Complaint. You have only 21 days if you are sued in federal court.

The first documents that you file in court are extremely important because your failure to raise certain defenses might mean that they are lost forever. In fact, even answering a complaint could prejudice you in regards to your rights. But you will almost always want to file something in response to a Complaint, or else it will result in a default judgment.

Answering a Complaint in Pennsylvania State Court

Under state court procedure, after you are served by the sheriff or other authorized process server, you are told that you have twenty days to answer the complaint. This is technically true.

But, on the twenty-first day, you will be mailed what is called a “Ten Day Notice.” This notice warns you that you have failed to answer or properly object to the complaint in a timely manner and are technically in default. After these 10 days elapse, if you still not responded to the complaint, then the Plaintiff may move for a default judgment against you for the amount that they are claiming in their complaint.

In some cases, you may wish to “remove” (that is, transfer) the case to federal court, which must typically be done within 30 days of being served. Not every suit can be removed to federal court.

Answering a Federal Lawsuit

In Federal Court, the rules are a little less forgiving. Within 21 days after being served, you must file an answer or an appropriate Motion to Dismiss. Failure to do so will allow the Plaintiff to move for default judgment on day 22. After that, it will be very difficult for you to get the judgment reopened.

If you believe that a lawsuit is not properly presented in federal court, you are best served to file an appropriate motion before attempting to answer the Complaint.

What happens if I don’t answer a lawsuit in time?

Failing to answer or otherwise respond to a lawsuit in Pennsylvania (or anywhere, for that matter) is a big mistake. The clerk of the court will enter judgment against you and will award the Plaintiff the amount they asked for in the Complaint, even if that amount makes no sense under the facts and the law!

So, if someone sues you for $1,000,000 because they say you insulted them, if you don’t answer, the Court will assume you have no objection to being in debt to this person for $1,000,000. They can seek to collect this judgment against you in a variety of ways. It’s safe to assume you won’t want that.

If you’ve already had judgment entered against you, you can seek to have the judgment “opened” or “stricken.” Under state law, if you have failed to file in a timely manner and received a default judgment against you, you have another 10 days from the entry of default to move for the judgment to be opened as a matter of right.

After that, it is still possible to get it open, but it is much harder. In federal court, it is difficult to get a judgment reopened.

Conclusion: Don’t delay in seeking legal counsel

In all instances, it’s best not to wait at all. Doing nothing about a complaint is the worst possible thing you can do. A good attorney will want time to research your claim and gather documents that are relevant, so it’s important that you move quickly.

At the Cornerstone Law Firm, we defend individuals and companies in lawsuits on a frequent basis. If you’ve been served with a lawsuit in state or federal court in Pennsylvania, we welcome you to call us to discuss your rights.

Don’t delay – call us today!