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Hiring an attorney can be a stressful and overwhelming event because it typically accompanies a difficult, painful, or worrisome event in your life. You may feel lost, confused, or mistrustful, and may have no prior experience with attorneys and not know what to expect. This is why it is important to find an attorney that is not only experienced and knowledgeable, but also that you can connect with and trust. One way to help you feel more at ease with entrusting your case to an attorney is to get to know your attorney better. Attorneys will learn a lot about you and your life as part of investigating and pursuing your case, but there are ways for you to get to know your attorney as well. One of the first ways that you might learn more about your attorney is to check out their website and biography. This will usually contain a lot of information about the attorney’s education and experience, such as where they received their undergraduate degree and where they went to law school. It will likely list significant academic or professional accomplishments, such as if they have authored any published written works or if they have given presentations or been speakers at conferences or other events. The website biography will usually list the courts of which the attorney is licensed to practice, the areas of law that they typically focus on, and may also list some significant cases they may have worked on or won. Another way to learn about your attorney is to perform a simple Google search. This will pull up various websites that review attorneys and can give you an idea of experiences that past clients have had with that attorney. Some of these websites include Avvo or SuperLawyers. These sites may also provide you with some additional information about the attorney’s significant accomplishments or awards and will also provide educational and licensing information for the attorney. While all of these sources are useful for learning about the attorney as an attorney, it can also be beneficial to learn about who your attorney is as a person. It can help put you more at ease to find ways that you connect with your lawyer, such as knowing that you are both parents or that you enjoy similar hobbies. Website biographies can sometimes be a source of this information, but you might want to check out the attorney’s law firm social media pages as well. Those will often shed more light on the types of causes the firm’s attorneys support or events that they attend, including sporting events, community or church organizations, or charities that they support or serve as board members for. Finally, the best way to get to know your attorney better is to ask them questions about him or herself! Most attorneys are happy to tell you about their work experience, education, or answer other questions that you may have to make you feel comfortable working with them. The attorneys at Bordas & Bordas are always happy to get to know clients and welcome the opportunity to share information about themselves and learn more about their clients as well. Don’t hesitate to introduce yourself and ask us questions! Image courtesy of Unsplash.

Our firm handles a wide range of personal injury and wrongful death cases throughout Pennsylvania, Ohio and West Virginia concerning tractor trailer collisions. Most of these are not simple, slam-dunk cases. Often, we have to contend with a rat’s nest of convoluted, multi-layered liability defenses. Among those is often the “independent contractor” defense. The company that is the prime mover in an activity may cloak itself behind an “independent contractor” shell game, capturing most of the profits while trying to outsource all the risks of harm to others. Effective representation of a seriously injured person requires that counsel reach the pockets of a responsible entity with sufficient insurance coverage or assets to pay a judgment. That often requires reaching behind a screen of independent contractor business relationships erected to evade financial responsibility. The general rule is that a defendant is not liable for the negligence of an independent contractor, but there are many exceptions. While not comprehensive, this paper seeks to outline major theories for overcoming the independent contractor defense. So first we need to ask what is an Interstate Motor Carrier? Prior to 1956, interstate motor carriers commonly sought to evade financial responsibility by hiding behind “independent contractor” arrangements. In 1953, while addressing carriers, the United States Supreme Court described such practices as “evils that had grown up” in the industry, and that the ICC need not “sit idly by and wink at practices that lead to violations of its provisions.” American Trucking Ass’ns v. United States, 344 U.S. 298, 301, 311 (1953). The history of the regulations of motor carriers reveals that after the commencement of regulation in 1935, a substantial number of carriers began to use equipment owned and driven by truckers who had no such ICC operating authority. This use was accomplished by a variety of leases, trip leases, and by other arrangements under which owner-operator truckers carried on the operations of the carriers with operating authority. In contracting with such persons, the carriers took care to constitute the lessors as independent contractors which enabled them to avoid the commission’s safety, financial, and insurance regulations that had been prescribed for equipment and drivers in order to protect the public. Many of the owner-operators without authority were itinerant truckers known as “gypsies,” fly-by-night truckers with poor, unsafe equipment who had little financial ability. They may or may not have had adequate insurance. The hard core of the problem was the trip lease and its attendant evils which permitted an indifferent carrier to evade its safety and financial responsibility. The practice of leasing made it difficult in collision cases to fix responsibility, and certified carriers could thus escape the consequences of the regulations and responsibility for accidents by employing irresponsible persons as independent contractors who were not financially accountable and who had no insurance or were under-insured. The use of non-owned vehicles led to public confusion as to who was financially responsible for accidents caused by those vehicles. Thus, interstate motor carriers often were able to escape liability for virtually all motor vehicle accidents occurring in the motor carrier’s business. Cincinnati v. Haack, 708 N.E.2d 214 (Ohio Ct. App. 1997). In such cases, it was “clear that the scheme as a whole is a mere subterfuge, an unpermitted evasion, not a real avoidance of the provisions of the law.” Since 1956, federal law has treated independent contractors as statutory employees of a motor carrier in the interstate motor carrier context. The 1956 amendment to the Interstate Common Carrier Act was intended to require a motor carrier to be fully responsible for the maintenance and operation of the leased equipment and the supervision of the borrowed drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred, and providing financially responsible defendants. The purpose is “to protect persons who are injured in highway accidents, by increasing the likelihood that a substantial entity will be available to respond to any judgment rendered.” This eliminates “the defense of independent contractor by making the owner/operator of the equipment the ‘statutory employee’ of the carrier.” Shell v. Navajo Freight Lines, 693 P.2d 382 (Colo. Ct. App. 1984). The Federal Motor Carrier Safety Regulations, 49 C.F.R. § 390.5, defines the term “employee” as, “any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler.” The Regulatory Guidance to 49 C.F.R. § 390.5 , at Question 17, explains: The term “employee,” as defined in § 390.5, specifically includes an independent contractor employed by a motor carrier. The existence of operating authority has no bearing upon the issue. The motor carrier is, therefore, responsible for compliance with the FMCSRs by its driver employees, including those who are owner-operators. These regulations were intended to safeguard the public by preventing motor carriers from circumventing applicable regulations by leasing the equipment and services of independent contractors exempt from federal regulation. The definition of “lease” as “contract or arrangement” extends to any arrangement by which a carrier allows another to haul its freight for compensation. Any other construction would defeat the Congressional policy of requiring financially responsible interstate transportation. If you or a loved one has been involved in a collision involving a tractor trailer we would be happy to answer any question you may have.

Many people are familiar with the term “power of attorney,” but understanding what that means can be a little more complicated. “Power of attorney” is often encountered in dealing with a loved one’s medical treatment when that person may not be able to make decisions for him or herself, but it goes beyond that. A power of attorney is a legal document that appoints someone to handle your medical, legal, and other decisions on your behalf. There is more than one type of power of attorney, and it is important to understand the type of power of attorney that is at issue because that will affect the scope of the authority that the appointed person or agent, sometimes referred to as “attorney-in-fact,” has. It will also affect the point at which the authority granted to the agent ends. A general power of attorney grants the agent fairly broad decision-making power. This could include managing finances for someone who is incapable of doing so for themselves, making decisions about sales and purchases of property for someone else, or any number of other decisions that would be involved in generally managing a person’s affairs. Documents creating a general power of attorney may say something to the effect of “I grant this person the authority to do anything on my behalf that I could legally do through an attorney-in-fact.” A special power of attorney is similar to a general power of attorney, but limits the agent’s ability to make decisions to a particular area of their affairs or a specific situation. This type of power of attorney could specify that the agent is only responsible for deciding what life insurance policy will be purchased, or could specify that the agent can make any decisions involving one’s finances but cannot make any decisions about one’s medical treatment. The document appointing the power of attorney will specify the scope of the authority. The most commonly recognized power of attorney is probably the medical, or health care, power of attorney. Many people will encounter this phrase and documents that can appoint one as a medical power of attorney when a close friend or family member is hospitalization or in an otherwise serious medical situation. Medical power of attorney allows the agent to make healthcare decisions for a person who is unconscious, mentally incompetent, or otherwise unable to make medical decisions on their own. Even more important that these categories of powers of attorneys, however, is understanding how the power of attorney relationship is created and when the relationship ceases to exist. For all powers of attorney, the person appointing the power of attorney must be competent at the time that the document is signed and the relationship is created. Where the power of attorney is an ordinary power of attorney, the agent’s authority to make whatever types of decisions they have been appointed to make will cease to exist at the time that the person becomes incompetent. Where the power of attorney is a durable power of attorney, the authority will continue to exist even where the individual becomes incompetent or incapacitated. For this reason, most medical powers of attorney are durable, rather than ordinary. The power of attorney document can also specify the point at which the authority ends, such as once a particular transaction is complete or a date certain. In any event, all powers of attorney end at the time that the appointing person dies, and the decision-making authority does not survive the person’s death. Powers of attorney can be helpful, or even necessary, in many situations, but it is important to understand what signing a power of attorney entails and the effect that it will have. It is best to contact an attorney to help guide you through the process and to answer any questions that you may have as you make important decisions about granting your authority to have someone act on your behalf.

If you are involved in a civil lawsuit, you will likely be served with at least one set of written discovery requests. These will probably contain a series of interrogatories, which will ask you to provide written answers to various questions related to the lawsuit, and requests for production of documents and other things, which will ask you to provide copies of documents that have information that could be related to the lawsuit. Both of these types of discovery requests are fairly easy to understand – the opposing party wants information about the lawsuit and is asking you to provide it. Sometimes, however, you may also be asked to answer requests for admission. This discovery tool can be a little more difficult to understand what is being asked of you, or what the purpose of your responses will be. A request for admission is a written discovery tool that asks the answering party to admit the truth of particular statements. The admission of these statements is only for purposes of the litigation in which the request for admission is being served. The statements may involve any discoverable information that relates to either the facts, the application of law to facts, or the answering party’s opinion about the facts or the application of law to the facts. They may also ask the answering party to admit that certain documents are genuine. The purpose of requests for admission is to help narrow the scope of the case and determine what facts or aspects of the case are not in dispute between the parties. This is important for two primary reasons. The first reason is to try and establish proof of important and essential aspects of the case. The second purpose of requests for admission is to help eliminate issues that are not a part of the case. The parties will spend a good deal of time and some money doing discovery to try and obtain as much information as possible about their case, and if there is an agreement about certain elements of the case, then less effort will be necessary to get to the bottom of that element and place evidence before the court on that issue. For example, if the lawsuit is about a collision where a semi-truck hit a passenger car, one issue that the plaintiff may want to explore in discovery is the driver’s employment with the trucking company. If the defendant company or driver will admit that, at the time of the collision, the driver was employed by the trucking company, and was driving for the trucking company as part of his job, then less efforts will need to be taken to establish and prove the employment relationship. Requests for admission also help the court by reducing the amount of evidence that the court will need to rule upon whether it may be admitted at trial. Your attorney will help you properly respond to any requests for admission that were served on you, and can explain to you the purpose of serving any requests for admission in your case on the opposing parties. *Image courtesy of Pixabay

In the case of Dean v. Bowling Green-Brandywine, the Pennsylvania Superior Court addressed the issue of whether the trial court properly granted nonsuit based upon the application of the limited immunity provision of the Mental Health Procedures Act (“MHPA”). The MHPA at 50 P.S. § 7114 provides that those who are engaged in treating or examining a patient “under the act” cannot be held liable absent “willful misconduct or gross negligence. Andrew Johnson was 23-years-old when he voluntarily applied for admission to Bowling Green Brandywine Treatment Center (“Brandywine”). Johnson was suffering from addiction to opiates and benzodiazepines, which had been prescribed for back injuries suffered in an ATV accident. Less than 10 days after he was admitted, he was found unresponsive on the floor of his room at Brandywine. He subsequently passed away. Johnson’s parents filed a complaint alleging Johnson’s death was caused by medical malpractice on the part of Brandywine and associated defendants. Some of the defendants raised the qualified immunity provision of the act, while others did not, including Brandywine. The case proceeded to trial. The Johnsons presented their case through expert testimony, which showed that the defendants had breached their duty of care to Johnson by failing to recognize his risk for and signs/symptoms of sudden cardiac death, and that Johnson died from a cardiac arrhythmia caused by deficient potassium levels and side effects of the medications in his system. The defendants moved for the entry of an involuntary nonsuit. They argued that the Johnsons had failed to present evidence capable of establishing willful misconduct or gross negligence. The trial court determined that the Johnsons had failed to present evidence capable of establishing that any of the defendants had been grossly negligent in their care of Johnson; therefore, the court granted the defendants’ request for nonsuit. It did not matter to the trial court that some of the defendants did not raise the issue of qualified immunity under the Act as an affirmative defense, since the Johnsons already knew it would be an issue. According to 50 P.S. § 7103, the Act applies to the “voluntary inpatient treatment of mentally ill persons;” however the Act does not define the term “mentally ill person.” However, the Department of Human Services has issued regulations defining “Mental illness” as: hose disorders listed in the applicable APA Diagnostic and Statistical Manual; provided, however, that mental retardation, alcoholism, drug dependence and senility do not, in and of themselves, constitute mental illness. The presence of these conditions, however, does not preclude mental illness. 55 Pa. Code § 5100.2. Here, the Superior Court determined that while Johnson was being primarily treated for substance abuse, the defendant psychiatrist and Brandywine were treating Johnson for co-morbid psychiatric conditions, therefore, nonsuit was proper. The Superior Court also agreed with the trial court that the Johnsons were not prejudiced by Brandywine’s failure to plead the Act as an affirmative defense since the Johnsons were put on notice of the claim through the pleadings of the other defendants. Finally, the Court determined that some of the defendants were not entitled to qualified immunity since their alleged substandard conduct in treating Johnson’s substance abuse occurred before the provision of mental health treatment. Given this holding, it is incumbent that plaintiffs consider the higher standard of gross negligence when the circumstances of the case involve the provision of both physical and mental health services. *Image courtesy of Unsplash/Pixabay

Someone recently asked me what my profession was and when I responded with “attorney” they immediately asked – well how long did it take you to become an attorney? What did you have to do for that? It then dawned on me that the process to becoming an attorney is often overlooked by many. While attending law school is clearly one of the requirements, there are a number of other steps along the way of reaching the goal of becoming a lawyer. These steps often begin as early as high school or even one’s first year of college. Although there is no set major or minor an individual looking to become an attorney must obtain before law school, a college student’s grades are important if they have any inkling towards potentially attending law school as GPA is among the main considerations factored in during a review of a law school application. Also, because law school is geared towards reading, research and writing, it doesn’t hurt to have a major that focuses on these skills as well. Moreover, there are pre-law courses and pre-law groups that college students can and should utilize to help them not only understand the application process for applying to law school, but also, to help them understand what additional requirements there are for becoming an attorney once law school is completed. In addition to maintaining a solid GPA and putting research into the law school application process, students must also take the LSAT or in other words the Law School Admissions Test. The LSAT tests students on their analytical and critical reasoning skills as well as their research and writing skills. Students are then given an LSAT score which is another huge element of the law school application and therefore it’s important to take the time to prep for the LSAT either on your own or through a prep course. The LSAT is only the beginning to the law school journey. Individuals then must research the various law schools around the country and start the application process which can take time to complete. Once accepted to law school, there are a number of certain courses that are required of students and specific courses in which a certain grade level must be achieved in order for the student to move on with their studies. Law school typically lasts three years; however, schools are now implementing rapid degree programs where you can obtain your degree in two years. Although many think graduating law school is the end of the process; there’s one more step on this path which is often thought to be the hardest and most challenging step along the way – taking the bar exam. Although each state has its own set of requirements, for the most part, to be admitted to practice law, you must have passed a bar exam. The bar exam is a two-three day test that quizzes you on a variety of legal topics as well as your legal writing skills. Students often study for this exam for months at a time and take prep courses to prepare for the same. In addition to the bar exam, there is a character and ethics part of the process to becoming admitted to practice law which an individual also must pass to be admitted to a bar association. After successfully completing a bar exam and being admitted to practice law, attorneys must stay current with their continuing legal education credits in order to stay active within their respective bar associations. In sum, although everyone’s path to becoming an attorney is different, this blog should give you some insight into the hard work that your lawyer has put in over the years! *Image courtesy of Unsplash/Pixabay

Arbitration Agreements Can Be Bad News for Employees – What You Need to Know In my work representing injured workers, I am increasingly seeing a disturbing pattern of employers having employees sign arbitration agreements. If you have signed an employment contract in the past 15 years, chances are you have also signed away your rights to sue your employer if you get fired for bad reasons, have been discriminated against at work or have been seriously injured on the job. But more and more I am encountering these same agreements for at-will employees of all types. Arbitration generally means that your lawsuit will not be heard by a court or a jury of your peers. Instead, your lawsuit will be decided by a third party, or sometimes a three-person panel, called an arbitrator. If you signed an arbitration agreement, the decision of the arbitrator is generally binding on both you and your employer. Over the past couple decades, employers and companies have pushed more and more for arbitration in a variety of circumstances including consumer contracts, nursing home admissions and more recently employment. The reason for this is two-fold. For one, there is typically no appeal process in arbitration.  Once the arbitrator decides, that’s it. But the bigger reason that the employers and/or companies favor arbitration is that most often the arbitrators have a pro-business leaning and companies tend to fare much better against litigants in arbitration. For people seriously injured at work, arbitration could potentially cost you millions of dollars in deserving compensation. As mentioned, it has almost become common practice for some employers to include employment arbitration agreements inside of standard employment forms and documents. Because of this, many employees often sign these agreements without realizing the ramifications. Employees often do not know that they have signed away their rights to bring a lawsuit, because the employment arbitration agreement was included as a clause within an employment contract, or in an employee handbook. That’s why it is critical to read through all the clauses in an employment contract before you sign it. If you get a document that says you have read and understand everything contained in an employee handbook, be sure to read and understand everything before singing. You can also ask your new employer if any of the documents you are signing contain an employment arbitration agreement. If faced with an arbitration agreement,  you will have to decide whether you are willing to sign away your rights. Keep in mind that your employer may rescind your job offer if you refuse to sign the arbitration agreement. Even at-will employees can potentially be fired for refusing to sign. But consider your bargaining power as well. If a certain employer has been courting you for months, they may be willing to give up or modify the scope of the arbitration agreement. If you feel concerned about an overly-broad or restrictive arbitration agreement, you may want to speak with an experienced attorney before attempting to negotiate. *Image courtesy of Unsplash/Pixabay

The proposed Equal Rights Amendment (“ERA”) provides that the rights guaranteed by the U.S. Constitution apply equally to all persons regardless of their sex. It is very brief: Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This amendment shall take effect two years after the date of ratification. The ERA was introduced in 1923, three years after the 19 th Amendment (granting women the right to vote) was ratified. In 1972, the ERA was finally passed by Congress and sent to the states for ratification. The original seven-year time limit was extended by Congress to June 30, 1982, but that deadline passed with only 35 states on board — 38 states were needed for ratification. The ERA has been introduced into every Congress since the deadline. The ERA has had something of a resuscitation this year. About two months ago, on May 31, 2018, Illinois voted to ratify the ERA, some 36 years after the original deadline for ratification was set by Congress. Some opponents of the amendment said that voting on it now is merely symbolic, noting that the protections that it outlines already apply to women today. Supporters, on the other hand, note that it is more important now than ever for the government to acknowledge clearly that women and men have equal rights under the law, citing the #MeToo movement and its revelations. Indeed, the #MeToo movement has underscored the importance of strong legal protections for women’s rights. The approval by Illinois sets up the possibility that one of the remaining states may want to move forward as the decisive vote to ratify. To be sure, there is a hurdle, so how would it work?  Supporters look to history, including the founding document. Six months after the Constitution went into effect, James Madison offered 17 amendments to the founding document. Congress ultimately approved 12, and by 1791, the states had ratified the first 10, which became the Bill of Rights. One of Madison’s amendments continued to slowly work its way through the states more than 200 years after congressional approval. Finally, in May 1992, Michigan became the 38 th state to ratify, making the 27 th Amendment the law. It provides that salary increases for members of Congress do not go into effect until the term after they were approved. Supporters of the ERA look to this history and ask, why did the ERA even have a deadline? There appear to be a couple of ways to revive the ERA completely, should one more state ratify it. A 2013 report of the Congressional Research Service, an office of the legislative branch, in its analysis has concluded that Congress could simply vote to change the old deadline. Or it simply might pass a brand-new amendment, which would most likely, as would a “new” amendment, require the states to ratify the ERA again. The states that have not ratified the ERA are Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana and Mississippi.

Corporations are a ubiquitous part of modern life. A corporation is a legal entity that exists separate and distinct from its owners. Advantages of a corporation include limited liability for its shareholders, a perpetual existence and ease of transferring ownership interests. Corporations come in two forms, C corporation and S corporation, and each has distinct advantages and disadvantages. The C corporation is the most common form of incorporation. It is a separate legal entity that is owned by shareholders. Most large, publicly traded companies are C corporations. S corporations combine most of the advantages of C corporations with a better tax structure for the owners. The income of an S corporation is not taxed at the corporate level. Instead, the reported income is passed through to the owners where it is taxed at personal tax rates. Corporations enjoy a type of personhood and have at least some of the legal rights and responsibilities enjoyed by natural persons – the ability to enter into contracts for instance. But corporations are very much a legal construct and to maintain the benefits of the corporate form, corporate formalities must be followed. Owners who fail to take the appropriate steps to maintain the corporation as a separate entity run the risk of having the “corporate veil pierced” and being held personally liable for any corporate transgressions. Under West Virginia law, see e.g., Laya v. Erin Homes, Inc., 177 W.Va. 343, 347, 352 S.E.2d 93, 98 (1986), Courts consider a number of factors where a litigant attempts to pierce the corporate veil. These factors include the identity of the directors and officers of two entities who are responsible for supervision and management (a partnership or sole proprietorship and a corporation owned and managed by the same parties); the absence of separately held corporate assets; the use of a corporation as a mere shell or conduit to operate a single venture or some particular aspect of the business of an individual or another corporation; use of the same office or business location by the corporation and its individual shareholder(s); employment of the same employees or attorney by the corporation and its shareholder(s); disregard of legal formalities and failure to maintain proper arm's length relationships among related entities; use of a corporate entity as a conduit to procure labor, services or merchandise for another person or entity; or the use of a corporation as a subterfuge for illegal transactions. While corporations are fairly straightforward to establish, their continued existence requires constant attention and nurturing to maintain the advantages and benefits of the form. For any West Virginia business owners thinking of incorporating, it is important to understand and remain mindful of the Laya factors to maximize the benefits the corporate form offers.

Many landowners in Ohio have known about the Ohio Dormant Mineral Act. Originally enacted as part of the Ohio Marketable Title Act it was passed in 1989 and went fully into effect in 1992 after a three-year waiting period which was designed to allow landowners the opportunity to protect their rights. One of the purposes of the act was supposedly to make it easier to determine who was the owner of old severed oil and gas mineral interests. The act itself, however, never applied to coal ownership. The law provided, generally, that certain mineral interest could be deemed abandoned if they had not been used by the original owner, or their heirs and assigns, during a 20-year window. The law was amended in 2006 and at that time additional requirements were added which more clearly stated that a landowner wishing to claim abandonment needed to take certain actions and provide certain types of notice to the mineral owners who might be subject to losing their interests. The question remained, however, what happened with those mineral interests that could be deemed abandoned under the old version of the law. Neither version of law was passed with a vision to the billions of dollars that would be at stake with the advent of the Marcellus and Utica Shale plays. The sheer amount of money at issue made for large scale and numerous legal attacks and litigation related to the Ohio Dormant Mineral Act. Just over a year and a half ago the Ohio Supreme Court, in a surprising ruling, attempted to provide some simplification and guidance regarding the two laws. The Court ruled that the original 1989 Act was not self-executing. That meant that even if the requirements of claiming the abandonment of a mineral interest were met, the landowner still had to do something to claim those rights. They had to file some time-of-action in the court system to affirm their claims. The majority thinking before that decision was that the law did not require such action and the mineral interest reattached to the surface interest automatically. The court determined after the new law went into effect in 2006, that a landowner had to then comply with the provision of the 2006 act to claim abandonment and had to undertake the more stringent research and notice requirements. This has now led to a whole host of new litigation issues including potential claims that attorneys performing ODMA work might have committed malpractice. Much of the litigation and unrest now lies in the question of whether attorneys and landowners conducted sufficient due diligence and research to find the heirs of the old severed mineral interest. For many years it seemed that research in the county recorder, probate and/or tax offices would be sufficient to identify the heirs of long lost reservations. Now it seems that this research might not be enough. Are you required to research genealogical databases or simply conduct web searches for people and addresses? Many people who did hire attorneys and proceed under the requirements of the 2006 act are now being sued or contacted by people claiming that they should have received notice of the abandonment claims and should have had the opportunity to respond accordingly. What was supposed to have become a settled area of law which clearer ownership has continued to be a muddied mess. Unfortunately, even for people who signed leases and were paid based on the provision of the ODMA, you might still face uncertainty and litigations.

On June 14, 2018, in Minnesota Voters Alliance v. Mansky, the United States Supreme Court struck down Minnesota’s ban on political apparel in polling places. A 7-2 majority, led by chief Justice John Roberts, held that Minnesota’s law prohibiting voters from wearing a political badge, political button, or anything bearing a political insignia inside a polling place on election day, violated the First Amendment. Chief Justice Roberts’ majority opinion was joined by Justices Kennedy, Thomas, Ginsberg, Alito, Kagan, and Gorsuch. Justices Sotomayor and Breyer dissented. The Supreme Court held that although a state may prohibit certain apparel because of the message it conveys so that voters can focus upon their voting decisions, any state with such restrictions must draw a “reasonable” line. In addition, the Court noted that the state “must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. Here, the unmoored use of the term ‘political’ in the Minnesota law, combined with haphazard interpretations” provided by the state in official guidance statements and in representations to the Court, caused the Minnesota restriction to fail. The Minnesota law aligned two important interests against each other: the right to vote in a safe environment and the right to say (and to wear) what you want. Although the Court struck down this particular state law, it recognized prior Supreme Court cases that permit the government to limit speech in and around polling places in order to prevent voters from being intimidated, confused, or defrauded. In so doing, the Court implied that Minnesota’s problem was that it drafted a law that was overly broad, not that it was trying to protect voters at polling places by limiting speech. This is how the dispute arose. In 2010, Andrew Cilek went to his local polling place to vote wearing a T-shirt bearing the Tea Party logo and message, “Don’t Tread on Me,” as well as a button with the message, “Please I.D. Me.” When an election worker told him that he would have to take off or cover up the t-shirt and button, Cilek refused. Eventually, he was allowed to vote, and an election worker recorded his name and address. Cilek and the Minnesota Voters Alliance went to court to challenge the law as a violation of the First Amendment’s guarantee of free speech. The U.S. Court of Appeals for the 8 th Circuit upheld the law, but the Supreme Court reversed that holding. The Supreme Court recognized that polling places, at least on election day, are government-controlled property set aside for the sole purpose of voting. Restrictions on speech there, according to the Supreme Court, are subject to a relatively low bar: the restrictions merely have to be reasonable. Even considering this low bar, however, the Court found that Minnesota’s restrictions banning “political” apparel were too vague, lacking guidance as to the meaning of “political.” Minnesota failed to provide the kind of “objective, workable standards” needed to pass muster under the First Amendment in order to restrict speech. At least 10 states impose political apparel bans, and all fifty states restrict political speech to some extent at polling places. Although a political t-shirt is unlikely to destroy democracy, in today’s political climate, it may keep the peace. Perhaps recognizing this, the Supreme Court’s decision acknowledged that a polling place, as Minnesota argued, should be “an island of calm in which voters can peacefully contemplate their choices.”

Distracted driving is dangerous to drivers, passengers, and nonoccupants alike. Anything that causes a driver to either take their attention away from driving, take their eyes off the road, or take their hands off the wheel is a distraction. A specific type of driver distraction occurs when a driver diverts their attention from the driving task to focus on their cell phone. On August 20, 2017, my best friend’s 54-year-old brother, Mike, was killed by a distracted driver. The person who struck Mike was a 16-year-old boy, who only had his license for a few weeks at the time of the crash. The collision apparently occurred because the 16-year-old was busy searching his phone for a song on his playlist, rather than paying attention to the road. The boy lost control of his vehicle which then left the roadway striking Mike as his vehicle was stopped in a parking lot, waiting to exit onto the roadway. Mike was not only a loving husband, son, and brother, but also the father to two teenage daughters. This tragic, but easily avoidable crash, not only took Mike’s life and forever change the lives of Mike’s family, but this momentary distraction has also changed the life of the 16-year-old boy, who now faces charges of reckless homicide. Pennsylvania has over 120,000 miles of roads and highways. Each year the Pennsylvania Department of Transportation publishes a booklet entitled: “Pennsylvania Crash Facts & Statistics”, which can be found at http://www.dotcrashinfo.pa.gov/. This booklet provides a sobering look at the leading causes of motor vehicle crashes and their resulting injuries and deaths which occur on Pennsylvania’s roadways. The booklet compiles information obtained by PennDOT from traffic crash reports submitted to them by state, county, municipal, and other law enforcement agencies. In 2017, there were 128,188 reportable traffic crashes in Pennsylvania. Those crashes claimed the lives of 1,137 people and injured another 80,612 people. On Average in Pennsylvania: each day 351 reportable traffic crashes occurred (about 15 crashes every hour); each day three persons were fatally injured in reportable traffic crashes (one fatality every eight hours); each day 221 persons were injured in reportable crashes (about nine injuries every hour). Based on Pennsylvania’s 2017 population (12,805,537 people): 1 out of every 44 people was involved in a reportable traffic crash. 1 out of every 11,263 people was fatally injured in a reportable traffic crash. 1 out of every 159 people was injured in a reportable traffic crash. In 2017, the number one contributing factor for both the number of crashes, as well as fatal crashes, was excessive speed. Distracted driving was the second most prevalent contributing factor accounting for 15,614 crashes. That number exceeded alcohol-related crashes by 6,471 crashes. Alcohol-related accidents accounted for 9,143 crashes. Just as technology has created the opportunity and environment for this increase in distracted driving, technology might also be the solution to prevent distracted driving attributable to cell phone usage. One such product is called “Cellcontrol”. This product contains proprietary software that blocks cell phone apps, texts, and calls while a driver is operating a vehicle.  Cellcontrol's patented distracted driving solution consists of two main components, a hardware device in the vehicle called DriveID and an app on the phone(s) or other mobile device(s). Once the Cellcontrol DriveProtect™ app is loaded on the phone, you install the DriveID hardware in the vehicle simply by attaching the DriveID hardware to the windshield of the vehicle, using Velcro, with the USB port pointed toward the dashboard. This blog is not meant as an endorsement of “Cellcontrol” or any other company which may have similar technology but rather identifies and discusses the “Cellcontrol” device to make readers aware that such technology exists to try to combat the growing problem of distracted driving. I urge all of you to talk to your family, friends, and neighbors about the dangers of distracted driving. By making others aware of the dangers of distracted driving, you and your loved ones can hopefully avoid the pain that Mike’s family continues to live with every day.