Motion to Compel

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A motion to compel is a document filed with a court asking for someone to produce “discovery” as part of a lawsuit. A motion to compel may ask the court to require someone to produce documents, the answer to a question, a witness for a deposition or some other form of discovery that the person is refusing to turn over. Motions to compel happen in the discovery phase of a lawsuit.

Pennsylvania Discovery Process

In state court in Pennsylvania, motions to compel are not considered appropriate until one has made an attempt to “meet and confer” with the other side. This means that in addition to a discovery request which is answered by objections or a non-answer, the party seeking the discovery is expected to either send a letter, have a phone call, or have other conversations with opposing counsel or the other party in an effort to work out the dispute before asking the court to intervene. This is based on the principle that courts do not want to be involved in matters unless they absolutely have to be.

In many counties, including Berks County, a discovery dispute has been referred to a discovery master. A discovery master is a private attorney who has nothing to do with the case who is hired by the county to hold weekly hearings and issue recommendations on discovery disputes. The presiding judge in a case reviews and usually approves these recommendations. In putting together a motion to compel and in proceedings before a discovery master, the important points to stress are why the discovery is relevant to the case, why it cannot conveniently be obtained somewhere else, and why the other party’s claims of privilege or objection are not appropriate.

Federal Court Discovery Process Requires Meet and Confer

Federal Court rules are similar. Federal judges want the parties to “meet and confer” as discussed above, and some judges in the Eastern District of Pennsylvania prohibit the filing of any motion without a teleconference with the presiding judge to explain why “meet and confer” failed to solve the problem. Furthermore, federal judges tend to be a little more willing to parse through lists of documents and demand production than some of their state court counterparts. This depends, of course, on the specific judge.

Conclusion: Discovery is Key to Litigation Success

Discovery is where cases are won and lost, and insisting on documents and answers in a case is an important part of being ready for trial. At Cornerstone Law Firm, our litigation attorneys deal with discovery disputes regularly, and we can help you with your case. Call us today for a consultation on your rights and obligations in discovery.

Are There Any Consequences to ARD?

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The Accelerated Rehabilitative Disposition Program, commonly known as ARD, is frequently brought up as a potential resolution to charges, especially when the charges are first-time offenses. Technically a first-time offenders program, ARD is sometimes offered or negotiated by criminal defense attorneys, even in situations where there are prior charges.

ARD results in the complete dismissal of charges and the expunging of the arrest from your record—so there are no “criminal consequences” to ARD. It comes without any jail time and no formal probation. And ARD can even reduce the license suspension you face in a DUI.

But are there any drawbacks to accepting ARD?

First, private parties are legally able to use ARD against you. One simple example of this is when your car insurance company raises your rates as a result of ARD. Some insurance companies use this as an admission of guilt even though the court system does not. Insurance companies use a number of factors to set your rate, including your age, your level of education, the neighborhood in which you live and more. Another factor they can weigh is your participation in ARD.

A second way ARD can be used against you is by colleges. Colleges sometimes discipline students for the actions that led to the ARD. Sometimes colleges will treat ARD as an admission of guilt, although there are some constitutional limits to how public universities handle these matters. Private colleges, however, will use ARD participation however they wish to in most cases.

Third, Pennsylvania courts have recently weighed in with suggestions that ARD can be used against a witness in a civil proceeding. While ARD is not proof that someone committed a crime, it can be brought up on cross-examination by another party’s attorney.

Fourth, in limited family law contexts, an ARD may be brought up as part of a custody or divorce proceeding to justify why your outcome should be different than the other parties.

Fifth, although ARD may result in expungement of charges, if your employer finds out about your participation in ARD, whether recently or in years’ past, there is not currently any law prohibiting the employer from terminating you. Some companies even have policies stating that ARD or other so-called diversionary programs will disqualify you from being a driver of any of their fleet vehicles.

Conclusion: ARD is great, but it can have drawbacks

Contact an experienced criminal defense attorney to learn more about ARD. Deciding to accept or reject ARD is an important decision that should be made with an experienced criminal defense attorney who is able to help you determine whether you should consider pleading guilty, fight your charges, or accept an ARD plan. Although ARD is a great outcome in many cases, there are times when it should not be accepted. Contact Cornerstone Law Firm today to discuss your options.

Armando Ortega Not Guilty on Homicide Charges

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After a week-long trial in the Berks County Court of Common Pleas, Defendant, Armando Ortega, was found not guilty on all homicide and assault charges after a jury concluded that he was not present at the scene of a murder that happened in 2014. Ortega was charged a year ago with homicide in the first degree on the basis of someone who claimed to be an eye-witness. He spent a year in jail awaiting trial.

“We are elated at the outcome of Armando’s case and proud to have represented him,” said Attorney Joel Ready, who represented Ortega in the trial. “This vindication was a long time coming and we are happy to see him return home.” Ortega was able to go home after the trial to be with family. The five-day murder trial involved nearly a dozen witnesses regarding the eight-year-old incident and concluded with more than three hours of argument by the attorneys involved.

Homicide charges come in several different varieties, ranging from first to third degree. Ortega was charged with first and third degree homicide as well as assault charges. First degree homicide carries a mandatory sentence of life in prison, and the assault charges would have carried sentences ranging across the spectrum. Ortega was found not guilty on all of them.

At Cornerstone Law Firm, our attorneys are proud of the role they play in seeking justice for criminal defendants.  If you or a loved one has been charged with a serious crime, call Cornerstone Law Firm and speak with one of our criminal defense attorneys about your case immediately.

Do My Medical Bills Get Put on Hold While I Pursue a Personal Injury Claim?

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When you are injured in a car accident, a common question that you may confront is what to do about your mounting medical bills. Some people have medical insurance that covers their medical bills, and they are less concerned with this problem. But for those who have lower-grade insurance, or for those whose insurance has been depleted as a result of the injury and injury recovery process, a big concern is how those medical bills will be paid.

To begin with, your medical bills are not put on hold or “paused” while your personal injury claim goes forward. Hospitals and other medical care providers typically do not wish to wait on the conclusion of a personal injury claim to get paid, and will insist on immediate payment. In some cases, they’ll even send these bills out for collections. So, what should you do about this?

First, ensure that all of your medical bills have been run through your PIP (Personal Injury Protection) coverage, which is part of your car insurance. PIP coverage is provided by your car insurer, and you can read more about it in our article on PIP coverage. Your car insurance (not the person who hit you) is required to pay for your medical bills up to a certain limit. Sometimes victims of car accidents are worried that their car insurance will be negatively affected by using their PIP coverage, but don’t let this worry you. Your PIP coverage is there for you to use to ensure that you get better, medically, and you should have no concern about submitting your car accident-related medical bills to your car insurance directly.

Second, if your PIP coverage is exhausted, and you have further medical bills, you should talk to a personal injury attorney about how to ensure that these claims are handled as you go through the process. In some cases, this means that your personal injury attorney sends letters to the medical providers or collection agencies explaining to them that the process is continuing and that, at some point, you expect payment on your claim. Personal injury lawyers can sometimes negotiate these claims or at least establish a delay in payment for you.

Third, establish payment plans if necessary. Some medical providers will agree to accept payments and can do so without any interest if you begin making certain amounts of good faith payments on these bills. Furthermore, you can sometimes negotiate these bills to a more reasonable level by offering to pay cash up front for a reduction in the overall bill.

Finally, medical bills can also mount after someone has passed away in a car accident. In that case, the estate of the person who died will be responsible for the bills, but these costs can be recouped from the wrongdoer in a wrongful death action.

If you’ve been in a car accident or otherwise injured on the road, contact the personal injury lawyers at Cornerstone Law Firm to discuss your case and see how we can help you. To learn more, read our article on your next steps after a car accident.

Does a Treatment Plan Effect my Drug or Alcohol Charges?

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When you’re facing drug or alcohol charges, getting treatment is important not just for personal and health reasons, but also as a piece of an appropriate defense. Charges involving addiction include possession of marijuana or methamphetamines, drug paraphernalia, DUI (driving under the influence), and other possession-type charges. Being able to show that you are taking steps to deal with your addiction is extremely important in your defense.

Below are two significant ways that a treatment plan can assist in your defense to these charges.

In-patient treatment can count as jail time

In the event that you’re facing serious charges that will require you to do jail time, doing a treatment plan and spending time in an in-patient treatment center can be credited towards jail time. In-patient treatment means that you have spent time in a facility where you spent the night and received intensive treatment. If you were in such a facility, the time that you spent there can be credited towards your jail time. For example, if you spend two weeks in a treatment facility, and end up sentenced to a month in jail, you will be nearly halfway finished by the time you check in for your first night in jail.

In-patient treatment plans can feel extreme, and we’ve found that clients are resistant to seeking this sort of treatment. It feels like jail—until you compare it to the possibility of actually going to jail. There can also be significant financial costs to in-patient programs depending on your insurance situation.

If health insurance covers in-patient treatment, you should consider taking advantage of this immediately, as health insurance plans do not typically cover such treatment if it is court-ordered. Taking advantage of an in-patient program right away can allow you to have it covered by insurance and then to use it as part of your defense mitigation after the fact.

In other words, you should aggressively and proactively pursue in-patient treatment at the beginning of the criminal process. Doing so means that it may be covered by your insurance. Even if you have no insurance, in-patient programs are almost always better than jail.

Out-patient programs are helpful too

Short of in-patient programs, simple steps like Alcoholics Anonymous or church-run programs can help to give you tools to combat addiction, to identify dangerous warnings that you might slip up, and can provide accountability to build toward new habits. As discussed below, this is helpful to show a prosecutor or judge as the process moves forward.

Proactive treatment can factor into your attorney’s arguments for a better plea agreement on your possession or other addiction-related charges

Although this is not always the case, when your defense attorney can show a prosecutor and police officers that you have been proactive with your treatment, they often are more willing to consider better offers. In addition, judges at sentencing who hold the power to confirm or deny a favorable plea agreement are often more persuaded by the steps that someone has taken to get serious treatment before being required to do so, even if it was after being arrested or charged with a crime.

Not every judge is the same, and of course not all prosecutors or officers will be won over by this step. However, there are very few ways to show that you’re serious about getting help quite like an aggressive treatment plan. Everyone tells a judge at sentencing that they want to get their life together. Showing that you’re willing to do so before being ordered to do so by a court can be persuasive in convincing the court or prosecutor that this is the truth.

Conclusion: Treatment plans are a helpful part of your defense

If nothing else, getting help and getting treatment is never a wasted decision when you’re facing drug or alcohol charges. For many people, charges can be a wake-up call that helps get them back on the right track. If you have questions about your charges or how treatment plans can impact what you’re facing, contact Cornerstone Law Firm today.

Dissolving a Church or Nonprofit in Pennsylvania

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When a church or nonprofit organization comes to the point where it is no longer large enough to sustain its purpose, there are a number of steps to take to properly dissolve it. To avoid creating personal liability for any of the directors or officers, it is important to dissolve the nonprofit organization legally and distribute its funds and property pursuant to Pennsylvania law. This article will give you a few of the steps that are involved so that you can prepare for the road ahead.

At the outset, we should note: this article is meant to give you helpful tips but is not legal advice. Every situation is different, and you should speak with an experienced nonprofit attorney who can help you through the process.

  1. Take an Official Vote of the Board of Directors/Members

Who gets to decide to dissolve the nonprofit? Under Pennsylvania law, your organization can either be member-run or run by the board of directors. Whoever holds the power should be the body to take the vote. Sometimes organizations take a vote of both, and this isn’t bad if everyone is in agreement. However, you can create a conflict where the board votes for dissolution and the members vote against it.

In most cases, if you have members of your organization, they’re probably the body empowered to vote to dissolve the corporation. In old-style nonprofit corporations, there were even stock certificates that were held by members, and their voting share was often different depending on how much stock they held. In most modern organizations, this is no longer the case. Regardless, members vote in a member-run organization on a major decision such as a total dissolution.

Churches can be a particularly confusing situation because they may have “members” who are not members within the meaning of Pennsylvania nonprofit law. To be sure, check your articles of incorporation and see if your organization was elected to be a member organization or not. You should also consult your by-laws. If there is a conflict between these documents, it’s important to discuss this situation with your attorney.

Once you’ve taken a vote, you need to document the vote. For a board of directors, this usually involves either meeting minutes or a corporate resolution documenting that everyone is in agreement (or noting the number of dissenting votes and showing that you had a majority). For a member vote, it’s important you have some sort of meeting minutes kept by a secretary, documenting the precise vote. This is done so that there can be no question that it was agreed that the organization should be dissolved.

  1. Obtain Tax Certificates

For most nonprofits and churches, this part won’t be an issue, but you will need to ensure that you have no outstanding tax due to the Pennsylvania Department of Revenue or the IRS. You may be wondering how a nonprofit could ever owe taxes. In most cases this has to do either with property tax for a property that was never granted tax-exempt status or for sales tax that was collected as part of some sort of business venture. There are other times that taxes can be collected from a nonprofit that are fairly rare. However, you should still obtain tax clearance certificates through the Bureau of Charitable Organizations in Harrisburg. Having these certificates will smooth the process for the rest of the way.

  1. Obtain Attorney General Approval

The Attorney General of Pennsylvania is granted power by statute to oversee all nonprofit organizations in Pennsylvania. This means that the Attorney General has the power to review dissolutions, mergers and other major changes to nonprofits. The idea of the Attorney General’s approval is based on ensuring that a non-profit does not collect donations and then simply dissolve, either giving those donations to a private party or giving that money to a nonprofit for a totally different purpose.

As a simple example, one could imagine that a nonprofit collecting money for a conservative cause and shutting down only to give that money to a liberal cause would incite a lot of consternation among individuals who’d given large amounts of money to the initial organization. Similarly, if a church were to shut down and give all of its money to an atheist organization, there would be many donors who would be wronged. The Attorney General’s approval is usually not hard to obtain, and simply requires showing that the final funds are being given to a similar organization.

  1. Obtain Court Approval to Sell Real Estate

As an important part of the process, any real estate owned by the nonprofit or the church needs to be sold and the sale or transfer will need to be court-approved. In many cases, a buyer will insist on court approval before the sale goes through, as title companies typically don’t insure purchases from dissolving nonprofits until the court order is obtained.

This is sometimes known informally as a “comfort order,” because even in situations where it is not legally required under Pennsylvania law, buyers and other third parties are often not comfortable until it is obtained.

  1. Ensure that Money Left Over is Transferred to a Similar Nonprofit

As discussed above, dissolving nonprofits should typically give their money to a similar organization. Churches often choose a church within their denomination or a church with similar doctrine. Nonprofits look for organizations with similar missions. A veterans group that is winding up will look for other groups that serve veterans, for example.

Another factor to be considered is geography. If your nonprofit serves the people of one county, a nonprofit that will be similarly invested there is a good choice. Ultimately, the Attorney General’s office gives broad latitude to the choice as long as it is a similar nonprofit, and as long as no one person is taking personal benefit from the dissolution.

Having said that, there is an appropriate way to pay out salary and other costs to the executive director, pastor or other employees of a nonprofit. Many of these individuals may have spent years trying to keep the nonprofit afloat during difficult times. There are legal ways to pay out extra salary, bonuses, and even retirement funds or annuities for these individuals without running afoul of the rules.

Conclusion: A nonprofit attorney can help dissolve your entity

When it comes to winding up a nonprofit, there are many choices you’ll face. Contact the attorneys at Cornerstone Law Firm for a full review of your situation and to discuss next steps in your process.

How Do I Get the Police Report After a Car Accident?

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When you’ve been in a car accident that causes you an injury or property damage, you may want to view the police report that was filled out at the scene of the crash by the responding police officer. Depending on whether it was a local police department or the Pennsylvania State Police, this can be a rather involved process.

Some police departments actually charge for their police reports, and others claim that they cannot give them out without a court order or subpoena. You may face opposition trying to get the basic official information that was gathered. This can be particularly frustrating if you’re trying to make an insurance claim based on your injuries from the accident.

Police reports are not technically considered a public record, and if anyone was charged in the accident, whether with a traffic ticket or something more serious, then the police department will usually refuse to provide the report in response to Right-To-Know Requests.

After someone has died in a car accident, the process can be particularly difficult. You may have to open an estate to pursue getting information on the accident or to set up a wrongful death claim. In these instances, police departments often refuse to give out the police reports except to an authorized representative of the opened estate.

Accordingly, if someone in the department won’t provide it to you, and if the police refuse to include it in a Right-To-Know request, what else can you do? Sometimes the only option is to retain an attorney to begin working on your personal injury case, or to pursue a small claims lawsuit for property damage to your car. An attorney can file a Writ of Summons or a Complaint to begin a civil action to recover damages and can advise you on the discovery rights this gives you. Most of the time, a simple subpoena can be sent—but only after a lawsuit is filed. Subpoena power does not arise under Pennsylvania law until a suit is filed.

If you’ve had trouble getting hold of a police report or have questions after your car accident or personal injury claim, give us a call today at Cornerstone Law Firm. Our personal injury attorneys can discuss with you how to move forward.

Pennsylvania Death Certificate

Why You Can’t Photocopy Pennsylvania Death Certificates

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Pennsylvania Death Certificate

An example of a Pennsylvania Death Certificate

When a loved one passes away, one of the first steps in the estate administration process is the issuance of death certificates. Death certificates are required for many things, including opening probate and obtaining a short certificate. At the top of the death certificate is a notice that you are not permitted to photocopy the death cert. Why is this?

Death certificates are one of a very small number of documents that, under Pennsylvania law, you are not legally allowed to photocopy. The reason for this is allegedly to prevent fraud. Of course, like many things, it also means more money for the Commonwealth of Pennsylvania. By restricting the photocopying of death certificates, more of them have to be purchased, which means more money for the state.

However, beyond the economic benefits to the state, the practical benefit of not photo-copying death certificates is to prevent fraud. Because it is sometimes difficult to tell if a scan or photocopy has been doctored, the state requires originals to be used.

Today, however, because so much work is done by email, many of the entities that will ask for death certs—such as banks, life insurances companies, creditors and others—will ask for them as attachments to emails. This means that by virtue of scanning and emailing them, some of the benefits of requiring original certificates are being bypassed in practice.

Technically, this is still illegal, and we recommend only using originals to be safe. When it comes to probating an estate, you may have many questions about how the process works and the best way to avoid costs and maximize the recovery for everyone involved in the estate. If that’s you, call Cornerstone Law Firm so that we may help you through the estate process, including probate, obtaining short certificates, and more.

Non-profit Best Practices

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When you are on the board of a non-profit organization, you are handed the important trust of ensuring that your organization is complying with all legal obligations and is adhering to financial best practices in how it handles donor money. In addition to having a good accountant to help you figure out the best way to handle funds, it is important that you keep up with legal requirements for your non-profit. Here are a few important steps every non-profit should take to ensure long-term stability and legal compliance.

  1. Draft a Constitution and Bylaws

Most people are vaguely aware of the requirement that non-profits have bylaws that govern their existence. Once a non-profit is properly formed, it is important to have an operating agreement that governs the rights and responsibilities that directors, officers, employees, and even sometimes the general public have in regard to the non-profit. This includes answers to the following questions:

How many members are on your board?

How many committees will the board have?

Will you require more than one signature on checks before expenditures of a certain amount are made?

Does your organization hold to a specific statement of faith or political creed (and what hiring and other decisions will this affect)?

In your bylaws, these questions should be answered. They do not have to be lengthy and shouldn’t be hard to understand. Your bylaws should be setup like an owner’s manual—but one that you’ll actually consult! Good bylaws are empowering, allowing everyone to know their obligations and responsibilities, and foreseeing how to resolve difficult conflicts that inevitably arise in even the best-run non-profits. Best of all, a good set of constitution and bylaws relieve everyone of the nagging fear that they’re not doing something right.

A common question we hear is what the difference is between a constitution and bylaws. As you can see above, we’ve used the term interchangeably. There once was a difference, but today, one document, called the “bylaws,” is more than enough to get your organization set and running on the right path.

  1. Draft Resolutions and Keep Meeting Minutes

Once your bylaws are in place, it is important to produce “meeting minutes” at all of your meetings. These minutes can be the notes that your secretary takes, but ideally are typed up in a standardized format, reflecting the general flow of discussion of the board, and approved at the following meeting after everyone has had a chance to see them.

So what’s the point of meeting minutes? Meeting minutes act as the history of your organization showing what actions were authorized or rejected at various meetings. At first, it can be tempting to rely on one individual’s memory or on the board’s collective memory for these actions. However, in the case of legal action against the board by a donor or government agency, or even by a disgruntled board member, having meeting minutes can strongly support the validity and propriety of actions that the board has taken on behalf of the non-profit.

Furthermore, organizations which keep track of minutes and are consistent with them provide helpful information for new board members and new officers of the organization to look back on and understand the trajectory of your organization. Meeting minutes are one of the first things to be sacrificed by non-profits who have just formed. Often, officers and directors feel that they are a lot of work to keep up with. But meeting minutes are a vital form of guaranteeing that your non-profit is operating according to law and protecting it from threats within and without.

What is the difference between minutes and resolutions? In general, minutes are for meetings that were held, while resolutions are actions the board takes by vote without a formal meeting being called. They are number of situations where this is necessary and many more situations where it is merely the most convenient. Sometimes the organization authorizes bonuses annually, or an emergency comes up in everyone’s absence. A resolution can be signed by everyone authorizing action and confirming that the board is in agreement with a specific proposal.

There’s no reason that meeting minutes are required over resolutions or resolutions over minutes. Both serve the same essential function in different ways.

  1. Ensure no excess benefit

For smaller nonprofit organizations, this piece is easy, but as you grow, it presents new challenges. You must avoid excess benefit to any individual or group of individuals arising out of a nonprofit’s property. A few examples of this are when your organization enters into a transaction with a private party or group to give them a piece of real estate at less than full value. Any property exchanged that is not in an “arms-length transaction” can fall under suspicion and can put the nonprofit corporation at risk. Another common example is when an executive director and his family are all driving vehicles owned by the corporation, making money off of their private company’s services to the nonprofit, and bringing in large paychecks from the nonprofit for their labors. While any or all of these can be legal, they must be done in a way that does not transgress the IRS’s rules on excess benefit.

This is a complicated area of law, and sometimes the best you can do is manage the risks. But working with an experienced nonprofit attorney is an important step in ensuring that your nonprofit doesn’t lose tax exempt status or otherwise expose itself to lawsuits or other challenges.

Conclusion: Contact a Non-profit Lawyer today

At Cornerstone Law Firm, our attorneys help nonprofit boards and leaders to manage their legal responsibilities and ensure compliance with best practices. If your organization could use a helping hand, call us for a consultation on your next steps.

Can I legally fly a drone in Pennsylvania?

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With the rise of inexpensive drones (or Unmanned Aircraft Systems, known as UAS), the number of remote pilots is growing by the day. If you live in Pennsylvania, can you operate a drone legally? What drone regulations in Pennsylvania should you be aware of?

The short answer is yes: the Federal Aviation Administration retains exclusive jurisdiction to regulate the National Air Space (NAS), and their regulations allow operation of a drone for recreational purposes as long as the drone is between .55 and 55 pounds, including anything attached to the drone.

If you are flying a drone for commercial purposes, including for video, photography, construction inspections and more, then you must obtain a “Part 107 Certificate” through the FAA to fly your drone.

However, many states and localities are trying to jump in and regulate drones also. These regulations are, in most cases, legally unenforceable because Federal Law preempts state law whenever Federal Law is intended to “occupy the field.” Because the FAA’s regulations are meant to be exclusive, state laws are almost certainly pre-empted in most cases.

In Pennsylvania, the legislature has made it easy on remote pilots by explicitly preempting any regulations at the county or local level. Harrisburg retains the power to make any state regulations. And the Commonwealth has passed only one statute so far dealing with drones: 18 Pa.C.S. Section 3505, which makes it a crime to do things with a drone that would be criminal if done otherwise, such as harassing someone or invading their privacy.

Pennsylvania’s law also provides certain common law rights to individuals, and invading privacy or standing on their land while operating a drone may come with legal consequences, even if it is not technically “illegal.”

At Cornerstone Law Firm, our attorneys are experienced in regulatory and criminal law, and can help you navigate your drone legal issues. One of our attorneys is even registered as a Part 107 Certificate holder, so you can be confident you’re getting advice from attorneys who understand your industry. Call us today.