Legal Advice Blog: Legal Advice, Case Insights, & Local Law Information

In honor of Martin Luther King Day, I wanted to write a short tribute to Franklin Dorrah Cleckley. As an attorney, law professor and justice, he had a profound impact on generations of up-and-coming attorneys. He was a tireless advocate, beginning his career as a Navy JAG officer and then returning to his native West Virginia to practice law. In 1969, he became the first African American professor at the West Virginia University College of Law. Except for a two-year stint when he served on the West Virginia Supreme Court, Professor Cleckley taught law for the next 44 years. Speaking from my own experience, I can tell you that Professor Cleckley was intimidating as a teacher. I don’t think he tried to be intimidating. But his command of the subject and his command of the classroom were unmistakable. I remember answering questions only to be told: “Well, that’s the fifth best answer. I’m looking for four better answers!” It was his unique way of pushing you to strive for excellence. Professor Cleckley certainly left his mark on the law. His treatise on evidence is still regarded as the authoritative word on the subject in law offices and courtrooms throughout West Virginia. His litigation handbooks on civil and criminal procedure are also essential parts of any practitioner’s library. In those works, he shows an uncanny ability to be both scholarly and practical. His prose is powerful, but he also writes with a desire to give solid, down-to-earth guidance to judges and attorneys alike. In September 1994, Professor Cleckley was appointed to a vacancy on the West Virginia Supreme Court - the first African American to sit on the high court. As a justice, he authored over a hundred majority opinions. Not surprisingly, his opinions are a reflection of his love of teaching. Every opinion was an opportunity to provide history and context, and to engage in a full blown, critical analysis of whatever issue was presented. When you read one of his opinions, you feel like you’re stepping into his classroom again.  You see him standing behind the lectern. You hear his booming voice. You soak up everything he says and walk away a little bit wiser and ready to take on the world. Sadly, Professor Cleckley passed away last year. It’s fair to say that he left a lasting legacy. But his legacy is far more than the books and opinions he wrote. His most important legacy is the seed he planted in thousands of attorneys like me, who are still being shaped by his teaching, his life, and his character. Image courtesy of WVU Today.

Now that we finally have a little bit of snow and some pretty cold weather, I am reminded of the blizzards and snow storms I have experienced during my lifetime. There are two that really stick out in my memory. The first one I remember was the winter of 1978 when we were hit with a blizzard on January 20 th that no one was expecting. Roads were closed for days, and it seemed like we didn’t go to school very much at all in January or February of that year. The most memorable blizzard I’ve ever experienced, however, was on March 13, 1993. We had a ski trip planned for the Canaan Valley area and had two chalets rented in Timberline. There was a group of 20 or so of us who made the trip down to Timberline that weekend for some skiing, hot tub soaking, socializing, and fun. I wasn’t skiing because I had my three-week-old son with me, and fortunately I took plenty of baby formula. The first evening there, we went to the restaurant to eat and asked our waitress how much snow they were expecting and she said two to three. We asked “inches” and she said “no, feet”—and she wasn’t lying. We woke up the next day to snow, and it kept snowing all day long and all through the night. Some of our group braved the slopes before they shut them down. It didn’t take long for the roads to become impassable. We were snowed in. We made the best of it playing cards, Scattergories, eating junk food, laughing, and having a good time.  At one point, the Sno-Cats came through to try to clear the road and took out our cable and the cable to the surrounding cabins, but we were very lucky to have a friend with us who was an electronics genius. He put on his Carhartt’s, went outside and tinkered around for a bit, and soon had everyone’s cable back on. I remember the people in the cabin next door applauding and giving him the “thumbs up” when their TV came back on. We were very lucky that we didn’t lose power, and we were also lucky enough to have a cozy fireplace. When we woke up the next morning there was about three to four feet of snow pressed up against the glass of the patio doors. We had to dig our way out of the cabin, and dig all of the cars out. We ended up being stuck there an extra day, and I’ve never seen snow drifts as tall as the ones we saw on the way home through Maryland and West Virginia. I was never afraid of the storm. In fact, it was fun being snowed in with people that we cared about and had fun with, and to this day is one of my best memories of winter. Image courtesy of Unsplash.

This tax season is the most exciting one in decades. We have our first chance to see the impact of the tax reform that President Trump signed into law at the end of 2017. The policy debate now gives way to the facts. Did the middle class really receive the tax cut they were promised? Or did all the benefits go to corporate America and the ultra-wealthy? One thing we know already – our politicians were not creative enough to pay for this tax cut. The federal deficient is expected to hit a record $1 trillion (when written out in long form, is $1,000,000,000,000. Yes, that’s 12 zeroes) for the year 2019. Enough about policy. The most important thing to do as you prepare your 2018 tax return is to throw out all of your preconceptions about whether you qualify for a particular tax break. The rules have changed. For example, the number of people who are able to claim the deduction for charitable giving is expected to decline from 37 million last year to 16 million this year. Sadly, the realization of the loss of this deduction is expected to have a direct impact on charitable donations going forward. While the fever for change to our tax law was fueled by the claim that the tax code would be simplified to the point that a tax return could be done on a mere post card, something altogether different emerged from Congress. Surprise, the tax code is even more complex. Therefore, millions of Americans will continue to turn to paid tax preparers. Unfortunately, most folks are unaware that nearly all states have more regulatory requirements for hairdressers than tax preparers. Certified public accountants, tax lawyers, enrolled agents credentialed by the IRS, and certain unpaid volunteers are the only tax preparers subject to testing and regulatory oversight. The lack of oversight has led to widespread and endemic problems across the industry. Mystery shopper testing done by the government agencies and consumer advocacy groups over the last several years have revealed high levels of errors and instances of fraud, ranging from 25% to over 90%. Accordingly, Bordas & Bordas recommends tax-payers consider a credentialed preparer, such as a Certified Public Accountant (CPA), an enrolled agent, an attorney, or a preparer who has voluntarily completed the IRS Annual Filing Season Program. A directory of credentialed preparers is available on the IRS website. Often a CPA can prepare your return for similar or even lower pricing than the chain store fronts. A free or inexpensive alternative for low-income taxpayers is a free tax preparation site. These include VITA sites (1-800-906-9887 or https://irs.treasury.gov/freetaxprep/) and AARP Tax-Aide sites ( www.aarp.org/findtaxhelp). Choosing a VITA or AARP Tax-Aide site saves eligible taxpayers the cost of a tax preparation fee. Many VITA sites can also help taxpayers open a bank account or get a low-cost prepaid card, which enables taxpayers to get refunds faster via direct deposit without paying a fee. We wish you a good return this year! Image courtesy of Unsplash.

With the beginning of the new year, W-2 forms will soon be filling mailboxes. Upon review, some of you may ponder why you are not receiving overtime. Overtime laws are designed to prevent workers from being exploited by their employers. However, 40% of workers are exempt from overtime laws. Most states, including West Virginia, have closely based overtime laws on the Fair Labor Standards Act, which is administered by the U.S. Department of Labor. The FLSA qualifies certain types of workers for overtime pay for all hours worked over 40 in a single week. If your work involves manual labor (such as factory worker, trade worker, attendant, cashier, etc) you are typically entitled to overtime pay.  Certain categories of workers are offered specific protection under the FLSA, including first-responders, such as police, paramedics, and firefighters, along with practical nurses and paralegals, who have historically been exploited and endured long hours of work. Most executives, administrators, and other professionals do not have to be paid overtime under both federal and West Virginia law. External salespeople and certain types of: computer-related workers, seasonal workers, transportation workers, agricultural and farm workers, and live-in employees, such as housekeepers, are also exempted from overtime requirements. Independent contractors, who are not considered employees, are also exempt. A series of tests are employed to determine the overtime eligibility of an employee based on pay rate, working conditions, skill level, and other factors. Those who qualify must be paid 1.5 times their regular hourly rate (“time-and-a-half”) for every hour over 40 per work week (7 fixed days) they work. The FLSA does not require overtime pay for work on weekends or holidays, unless overtime hours occur on such days. If your employer has failed to pay you the proper overtime wages that you deserve, you may be eligible to receive back wages and other compensation. Furthermore, existing regulations prohibit employers from penalizing workers who file an overtime complaint. Some companies will go to great lengths to avoid paying their employees the overtime pay that they deserve. Companies may resort to classifying employees as independent contractors or improperly categorizing them executives in order to avoid overtime. If you find yourself in this situation or need help determining whether you have a right to overtime, you should contact a qualified attorney.

During the holidays, I came across a cute galvanized recipe box online and purchased it for my daughter who loves to cook. As I scrolled through some recipe cards to go in it I wondered if she would really use this. By simply logging onto the internet, so many recipes are accessible and can be printed much more quickly than sitting down to hand-write recipes. But then I got to thinking… When I was younger, I remember my mother sitting at the kitchen table and writing down recipes on index cards and putting them in her recipe box. My grandmother did the same. I followed suit when I was younger and have quite a few hand-written recipes of my own. My mother and grandmother aren’t with us any longer, but it is nice to look at these cards and see their handwriting. Some of the cards are stained with cooking oil and vanilla, giving the card even more character, knowing that the spill probably happened while they were cooking for us kids. Not too long ago, while visiting my daughter, I saw the recipe box that I gave her for Christmas on her table, and yes, she does actually write cards of her own. And one day, she will be given “our” cards as well to include in this family tradition.

In Leight v. UPMC, the Pennsylvania Superior Court declined to expand the Mental Health Procedure’s Act (“MPHA”) to cover claims concerning voluntary outpatient mental health treatment. This claim arose from a March 8, 2012 shooting incident, wherein John Shick killed one person and injured several others, including Kathryn Leight, who was working as a receptionist at Western Psychiatric Institute and Clinic (“WPIC”) when the shooting occurred. Mr. Shick had a long-standing history of mental illness, and ultimately came under the outpatient care of UPMC/WPIC. On February 10, 2012, Shick appeared at his family physician to have blood drawn for testing, and inappropriately brandished a baseball bat in a threatening manner, causing the nurse to be upset. Dr. Weiner reported the incident to “Resolve,” the program within WPIC that, among other functions, takes and responds to calls about involuntary civil commitments, and sends mobile teams to evaluate and transport individuals requiring same. Resolve endeavored to take Mr. Shick to WPIC for evaluation, but Mr. Shick refused. On February 17, 2012, Dr. Weiner called resolve and spoke with a Resolve clinician, asking to have involuntary commitment papers faxed to him to accomplish the involuntary commitment of Shick. The clinician informed Dr. Weiner that Western Psych does not fax involuntary commitment papers and suggested that Dr. Weiner go to Western Psych to fill out the forms; however, this process was not advanced. On February 20, Shick was evaluated by UPP orthopedic foot & ankle surgeon, Dr. Prisk, M.D., who recognized that Shick clearly had uncontrolled schizophrenia, and really needed psychiatric care. Dr. Prisk contacted “the case managers” for psychiatric help, who he documented were unable to come. On that same day, another physician, Dr. Kirby called WPIC, on an emergent basis, and spoke with Resolve clinician Valerie Krieger, seeking assistance to have Shick involuntarily committed; however, Dr. Kirby did not attempt to or file a commitment petition. On February 28, Dr. Kirby sent Shick a letter notifying him that his practice would no longer provide medical care to him effective thirty days from that date. On March 7, Shick called for and received emergency care at his residence for his complaints of shortness of breath, vomiting blood, and parasites in his intestines and eyes. He was taken to UPMC Presbyterian Hospital's emergency department, where he repeated that history, demanded pain medication, refused to discuss his medications with the examining physicians, and left. On March 8, 2012, Shick went to WPIC, armed with 9mm semiautomatic handguns and extra ammunition. In the unguarded WPIC lobby, he shot and injured at the unprotected receptionist’s desk, and shot several other people, killing one of them, before he was himself shot and killed by an armed University of Pittsburgh police officer stationed nearby, but not in or assigned to WPIC, who responded to reports of the incident. Kathryn suffered physical injuries in the nature of gunshot wounds to the left chest and abdomen, including entry wounds there and exit wounds from her back, and related internal injuries to her muscles, ligaments, nerves and internal organs, and complications including pneumothorax and respiratory failure. She required intubation and exploratory surgery, and long-term subsequent hospitalizations; she also suffered from post-traumatic stress disorder. The Leights sued UPMC, and others, alleging gross negligence for UPMC’s failure to warn Kathryn of the dangers associated with Shick. UPMC filed preliminary objections, arguing that there was no duty to warn or protect Kathryn from Shick and that there was no duty owed to Kathryn under the MHPA. The trial court dismissed the Leights’ MHPA claims, finding that the MHPA does not apply to voluntary outpatient treatment. Upon appeal to the Pennsylvania Superior Court, the Leights argued that the trial court erred in “finding that the absence of mention of voluntary outpatient treatment in the MHPA’s scope language immunized physicians providing voluntary outpatient medical treatment from their grossly negligent involuntary examination decisions.” Further, the Leights argued that the trial court’s interpretation of the MHPA is flawed, as a determination that an involuntary commitment examination is necessary is involuntary, not voluntary, treatment. The Pennsylvania MPHA establishes rights and procedures for all involuntary treatment of mentally ill persons, whether inpatient or outpatient, and for all voluntary inpatient treatment of mentally ill persons. 50 P.S. § 7103. The immunity provision of the MHPA provides as follows: In the absence of willful misconduct or gross negligence, a county administrator, a director of a facility, a physician, a peace officer or any other authorized person who participates in a decision that a person be examined or treated under this act, or that a person be discharged, or placed under partial hospitalization, outpatient care or leave of absence, or that the restraint upon such person be otherwise reduced, or a county administrator or other authorized person who denies an application for voluntary treatment or for involuntary emergency examination and treatment, shall not be civilly or criminally liable for such decision or for any of its consequences. Id. § 7114(a); see also Farago v. Sacred Heart Gen. Hosp., 562 A.2d 300, 304 (Pa. 1989) (stating that the clear intent for enacting Section 7114 of the MHPA was “to provide limited protection from civil and criminal liability to mental health personnel and their employers in rendering treatment in this unscientific and inexact field.”). In this case, the Superior Court determined, based upon a plain reading of the MPHA, that while a plaintiff may maintain a cause of action where the parties treating or examining a patient under the MHPA have acted with gross negligence, the MHPA only applies to all involuntary inpatient or outpatient treatment, and voluntary inpatient treatment of mentally ill persons. See 50 P.S. § 7103; see also McNamara by McNamara v. Schleifer Ambulance Serv., Inc., 556 A.2d 448, 449 (Pa. Super. 1989) (stating that the MHPA “establishes rights and procedures for all involuntary treatment and voluntary inpatient treatment of mentally ill persons.”). Thus, the immunity and cause of action provisions under section 7114 of the MHPA did not apply to voluntary outpatient treatment. See McKenna v. Mooney, 565 A.2d 495, 496 (Pa. Super. 1989) (holding that section 7103 clearly states that the MHPA does not apply to voluntary outpatient treatment); see also DeJesus v. U.S. Dep’t of Veterans Affairs, 479 F.3d 271, 284 (3d Cir. 2007) (noting that “Pennsylvania courts have held that the MHPA does not apply to voluntary outpatient treatment.”).

The holiday that I want to talk about this month is obvious: New Year’s Eve. It is not the usual New Year’s resolution to quit smoking, work out more, lose weight, stop procrastinating, enjoy the little things, keep a positive attitude, volunteer at a needy charitable organization, start a blog or, at least, contribute to a blog. Well, one out of eight isn’t bad. In all seriousness, what I want to talk about is the classic New Year’s artifact, “Auld Lang Syne,” the meaning of the song and how it impacted my New Year’s Eve. The title may not ring a bell, but the lyrics will: “Should old acquaintance be forgot….” It is an 18 th century Scottish ballad that is a rhetorical question as to whether old friends should be forgotten or not. The answer is no. That principle was brought to the forefront of my relationships this New Year’s Eve when I had various friends spanning my entire lifetime at my house. What was amazing is that none of them had met each other but we all got along as through we all had been lifelong friends. As I reviewed each of the friends, I realized they are quite diverse, yet they were all very good friends of mine and had been for some 30 years. That in itself made me feel old and nostalgic as we went into New Year’s Eve. I had long ago made plans with a couple of friends, who I met when I graduated from law school and moved to Lebanon, PA. Rick and “Chatty” Smith became instant friends of mine after we met. Rick was, and still is, an avid Boston Celtics fan. We met when I was asked to play on a men’s league basketball team soon after I moved to Lebanon. I had met a guy named Eric at the local YMCA while playing some pick-up ball. He asked me to join a team with him and some of his friends. On the night of our first game, I rode with Eric to the Smiths’ home. Little did I know as we drove there, I was about to meet a couple that would become life time friends. As we drove over, Eric explained that Rick and I would hit it off, since I was from Boston and Rick was a lifelong fan of the Celtics. The whole team met at Smith’s and we divided into a number of cars when we left for the game. I ended up riding with Rick. We immediately began sharing our childhood memories of various Celtics highlights. These include the vivid memories of the infamous Boston Celtics radio announcer Johnny Most. For those of you that might not be familiar with him, he was the biggest homer announcer I have ever had the pleasure of listening to in my life. To give you an idea of what a homer he was, think Myron Cope times 10. We both laughed at how we didn’t realize his bias toward the Celtics until we had each begun watching the Celtics game on TV but still listening to Johnny on the radio, as most Celtic fans did in Johnny’s heyday. Most’s version of the Celtics games was blatantly one-sided and exaggerated in the favor of the Celtics, but this only became apparent when you compared what was actually happening in the game on TV to what he was saying over the radio. Over the years we have shared many the pros and cons of life, too many to list them all. However, one comes to mind most prominently. I met both of the Smiths’ kids, Allison and Greg, that first night I was at the Smiths. After that first night it became a tradition that I would come to their home for dinner on game days, as I was a bachelor whose cooking skills at that time consisted of making tuna fish, mac and cheese, and corn. Part of the tradition was that each time I would come over I would put Allison and Greg in my gym bag and twirl them around. They were approximately two and four years old. They would fit snuggly in my gym bag and would squeal with laughter each time I twirled them around. Allison was married this summer to a very nice young man. I have been to many weddings over the years, weddings of acquaintances who were good friends or family members of girlfriends; weddings of good friends, family members and my own. However, I never shed a tear until Allison’s wedding. It was so surreal. I tried to figure out what the difference was. I had been to the weddings of many loved ones before, but this was the first time I was choked up by the ceremony. After giving it much thought, I realized that it was because her wedding was the closest I had ever came to having a daughter. I have known Allison her entire life, except those first two years, and I have been involved in her accomplishments and her unhappy times. I have seen her grow into a beautiful, intelligent, accomplished young woman who has chased and is achieving her dreams. At her wedding I flashed back over each of the years and events all the way back to that cute little two-year-old who, along with her brother, fit snuggly into my gym bag. It all hit me like a ton of bricks, and the tears began to flow. I could tell similar stories about the other friends, the Reyes-Guerras. They also came to share New Years with me and my family. I am the godfather to one of their daughters. We have vacationed together. We laugh about how I almost dated Lynne before she met her husband, John, but we were dating other people and that by the time the other relations ended we were such good friends and our relation had formed as such that it would have been too weird to ever date. That whole weekend I looked at each of the friends and our relationships and tried to determine what was the common trait of my friends that made us such good friends. I kept looking at their educational, social, and economic backgrounds and found no common denominator. I looked at preferences and hobbies, and again saw no constant factor. Like I reflected on Allison’s wedding, I reflected on our friendships. I was curious as to why I was such good friends with various people with different backgrounds. As the clock was nearing midnight on New Year’s Eve, it dawned on me - each of the couples were people I know I could ask them to do anything and they would be there in a second to help me in any way they could. I also realized the answer to the rhetorical question “Should old acquaintance be forgot….” is an astounding “NO WAY.” Happy New Year. A toast to old friends who shall not be forgot. Image courtesy of Unsplash.

One of my favorite parts of a new year is opening a fresh, empty new planner. Even though I use digital calendars both for work and home appointments, I still maintain a physical planner – as do most of the attorneys and staff in our offices. I’ve found that the act of writing down appointments and to-dos helps to remember them better, which is one of many reasons why I prefer to track my days this way. There are lots of options for planner enthusiasts out there. A traditional datebook is always good, but if you want something a little more tailored to your interests or specific goals, there are lots of planners that can work for you: The “bullet journal” system is a fun and flexible way to turn any notebook into a planner that is custom-tailored to your needs. The Passion Planner is a leather-bound journal and datebook that focuses on helping you achieve your goals throughout the year, and includes pages for monthly reflections. The Commit30 Planner comes in both a standard and a fitness variety, and also features extremely targeted goal setting pages to help The Day Designer looks more like a standard weekly planner, but has helpful pages at the start for goal setting and a to-do list on every day. Of these, I am a big fan of the Day Designer and the Passion Planner. Both have lots of space for me to plan out my months/weeks/days and also space for written to-do lists, which I need. Do you prefer to use a physical calendar and planner? What systems have you tried? Image courtesy of Unsplash.

As I was leaving for work one morning, I noticed that my husband left the broom he was using to sweep off the front porch standing in the corner instead of putting it back into the shed. No big deal, it was 6:30 a.m. and wasn’t hurting anything by being there until he gets home.  Later that evening when I arrived back home I noticed the broom still there only it had fallen. “Why can’t he put things away where they belong? Someone is going to trip over it and get hurt.” Since I had my arms full I stepped over the broom and went inside the house. The next morning, I stepped over the broom AGAIN on my way to the car to go to work. “I’m going to let that broom sit there and see how long it will take for him to put it away.” Later that evening when I came home, same broom…same position. At that point I was furious. When is he going to come to his senses and stop walking over the broom that is clearly in the way and could cause someone to fall? Didn’t he care that someone could trip over it and fall right into the glass door? What kind of person does that?? It doesn’t take a rocket scientist to figure out the answer to that question. That would be the kind of person who has a huge plank in her (my) eye! We all have certain areas in our lives that we need to change, but it is easier to call out the shortcomings of others than to focus on our own business. We deceive ourselves by not taking ownership for our responses to the actions of others. That’s where the difference between the comparison of a speck of sawdust and the big plank comes in to play. My secretive test to see how long it would take for my husband to pick up the broom was not about a productive resolution. I was criticizing the behavior of someone, but excusing that very same behavior when I exhibited it. I was being hypocritical, period. Thank goodness it didn’t take too long before I self-assessed and concluded that my actions needed to be better. At that moment I removed that plank from my eye and picked up that broom. Image courtesy of Unsplash.

It is that time of year, once again, where many take stock of their recent year and reflect on what they have done and what they would like to do in the time to come. Many of us set New Year’s resolutions at the start of each year, and many of us don’t follow through on them. Often we vow to try again, dedicate ourselves more seriously to our goals and desires, and add new achievements to the list. It might be time to start setting those objectives in a different light though. So many of us set New Year’s Resolutions, or goals in our lives in general, based on the premise that something is lacking, we have done something wrong, or we are not good enough. We say we want to lose weight, drink less soda, watch less TV, spend less money, or quit a bad habit. And those are admirable goals, but they all come with a mindset of punishment or deprivation. What if instead of those goals, we decided to spend as much time outside as we do in front of the TV each weekend? Cook a new recipe with our families instead of eating out at least once a week? Decide to pay more attention to how we spend our money and where we could make some adjustments rather than just say “no spending”? Or what if we decided we wanted to make a resolution to volunteer a certain number of times during the year? Or that we would try one new thing each month? What if we decided to call our old friends to check in and catch up, instead of just look at their Facebook page? Setting goals and resolutions that focus on the good things, new things, or exciting things you can do, rather than all of the things you can’t or shouldn’t do, can make a world of difference not only in your ability to achieve those goals and keep those resolutions, but also in your general attitude and outlook on day-to-day life. When you reflect on last year’s resolution, how you did in keeping them, and what you’d like to aim for this year, challenge yourself to think of something in the spirit of growth, rather than the spirit of correction. You will still be growing and changing as you set and keep your goals, but you just might find the added benefit of changing your outlook as well. Image courtesy of Unsplash.

With the New Year upon us, we will be taking into perspective our year in the rear view mirror, it’s important to reflect on all that has occurred. Whether it be from a personal or financial stance, it is important to see what we have accomplished over the year. Also, during this time, it is important to acknowledge what we didn’t accomplish so that we can reflect on why we failed to achieve some goal or task. For lawyers, the new year provides us a time to reflect on our legal practice and to evaluate our work over the year and to determine whether we are doing our best work possible. However, when we take the year into consideration, it can often times seem as if certain administrative or personal tasks or obligations can get in the way of allowing us to fully focus on what is most important to us. So, for 2019, I suggest we get ahead of these tasks so that we can put our best foot forward in accomplishing our goals. Whatever your occupation may be, here are a few tips to help you get on track in the new year: Assess your area of work: Are you working in a field or practice area that you enjoy? Is there a certain type of work that you dread taking on? Are there certain tasks that seem to take longer to do than others? Are you using the newest technology or strategy to accomplish these tasks? Can you work with others to implement their practice and knowledge in this area? These are all items to take into consideration when planning for the new year and evaluating your strengths and weaknesses – the new year is all about changing what didn’t work for you in the past. 2. Make sure all your information is current with any association or other type of organization you belong to: In the legal field, one task that may seem daunting to many attorneys is to make sure their contact information and practice areas are current with their respective bar associations. However, it is important to keep these types of items up to date so that we receive the latest news in our practice areas and so that we can contact other colleagues for information or help should we need it. Every field of work has these types of organizations and it is important to make sure that you aren’t missing out simply because your information is outdated. 3. Check your continuing education requirements: It seems like one item that always creeps up on attorneys with busy schedules is that CLE deadline in which your cle credits must have been obtained. If you check your CLE credits at the beginning of the year, you’ll be sure to avoid the mad rush to get them all in before that deadline. This is true for all types of professions in which continuing education is a requirement. 4. Organize your email This may seem like common sense, however, organizing your email is key to being productive and making sure you don’t forget about those tasks that otherwise may remain lingering at the start of the new year. For attorneys or other types of professionals with numerous clients, it’s never a bad idea to create sub-folders that correlate to each client so that you can put all of your communications with that person into that specific folder. This also becomes very helpful when you need to pull out a communication at a moment’s notice. Again, sometimes the simplest tasks are the most helpful. 5. Make sure all your electronic devices are up to date and working: In today’s day and age, many of us are working remotely or out of multiple offices depending on the day’s schedule. It is important to make sure that our electronic devices – whether it be a laptop or iPad are up-to-date and functioning so that when we find ourselves out of the office, we are able to connect and pull up whatever electronic file or information is needed. In sum, these are just a few tips for getting ahead of your work in the new year and being able to focus on what is most important to all professionals - putting their clients first!

Recently, in Brewington v. Walter G. Smith Elementary School, et al., the Pennsylvania Supreme Court determined that the lack of padding of a gym wall may constitute negligence in the care, custody, and control of real property, and, thus, falls within the Political Subdivision Tort Claims Act’s (“Act”), real estate exception. On May 9, 2012, nine-year-old Jarrett Brewington sustained a significant head injury during a gym-class relay race when he tripped and was propelled head first into a concrete wall. Jarrett was diagnosed with a concussion; he missed almost two months’ of school and continued to experience headaches and memory problems years later. Jarrett’s mother, Syeta Brewington, sued Walter G. Smith Elementary School and the School District of Philadelphia (collectively, the “School”) claiming that Jarrett’s injuries occurred because the School allowed a defective and dangerous condition of the premises, i.e. concrete and un-padded gym wall. In response, the School claimed that it was immune from suit based on the defense of governmental immunity. The Political Subdivision Tort Claims Act (“Act”), 42 Pa.C.S. §§ 8541 et seq., grants governmental immunity from tort liability to local political subdivisions, including public schools. However, there is, among others, a real property exception to governmental immunity ― and, in particular, whether the absence of padding on a gym wall, into which a student ran during gym class, causing injury, falls within the exception. The trial court granted the school’s motion for summary judgment, finding that padding was personal property, not real property; and, that the claim of an unsafe concrete wall was a design defect case, and did not fall under Ms. Brewington’s negligence claim pursuant to Rieger v. Altoona Area School District (Pa. Cmwlth. 2001). An en banc panel of the Commonwealth Court reversed, holding that the Act’s real property exception, applies to a governmental agency’s negligence in the care, custody, and control of real property that rendered the property unsafe for its intended and foreseeable use fall within the real property exception to governmental immunity. The Commonwealth Court acknowledged Rieger, and, the Supreme Court case of Blocker v. City of Philadelphia, which held that chattel that is not affixed to real property, is personal. However, it relied on Singer v. School Dist. of Philadelphia (Pa. Cmwlth. 1986), wherein the Act’s real estate exception applied to a gymnast’s fall on an un-padded floor. In Singer, the Court held that while the padding was personal property, the floor, which caused the injury was real property. The Commonwealth Court concluded that Rieger “misconstrued Blocker as overruling Singer” and misconstrued Singer as “holding that personalty placed on real property to render it safe for its intended use is considered to be real property for purposes of governmental immunity.” After an extensive analysis, the Supreme Court agreed the Commonwealth Court’s analysis and found that the unpadded wall directly caused Jarrett’s injuries, and that the wall constitutes real property. For those reasons set the Court held that the lack of padding of a gym wall may constitute negligence in the care, custody, and control of real property, and, thus, falls within the Act’s real estate exception.