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In Nicolaou v. Martin, No. 44 MAP 2017 (Pa. Oct. 17, 2018) (Op. by Baer, J.), the Pennsylvania Supreme Court ruled that it is the jury who determines whether a plaintiff has acted reasonably in pursuing her claim with reasonable diligence once aware that she has been injured due to the negligence of another. In 2001, Nancy Nicolaou was bitten by a tick on her ankle, which caused a rash, numbness and tingling in her left toe, fatigue, and lower back pain. Based on this information, Lyme disease was a primary diagnosis for consideration. From 2001 through 2007, Mrs. Nicolaou treated with no less than four different health care professionals, who all considered the diagnosis of Lyme disease; however, because lab tests were negative for Lyme diseas-*e professionals did not treat her for same. Several years elapsed and Mrs. Nicolauo’s conditioned worsened and she became incontinent and confined to a wheelchair. In 2006, an MRI revealed processes consistent with MS or Lyme disease. Again because repeat Lyme disease lab results were negative Mrs. Nicolauo did not receive standard antibiotic therapy. Instead, the health care professionals treated Mrs. Nicolaou as having MS, and administered steroids. The health care professionals reasoned that Mrs. Nicolaou did not have Lyme disease since all four standard laboratory tests for Lyme disease were negative. Importantly, in all of the laboratory reports, the laboratory advised the health care professional of the very real possibility of a false negative due to limitations of the tests. Notwithstanding her health care professionals’ opinions, Mrs. Nicolaou suspected that she had Lyme disease, and stopped treating with her primary health care professionals in 2007. In 2009, Mrs. Nicolaou commenced treatment with a Lyme disease specialist, who acknowledged that Mrs. Nicolaou might have Lyme disease despite the negative lab tests, and treated her with standard antibiotic therapy for Lyme disease. Ultimately, Mrs. Nicolaou was offered a specialized test to test for Lyme disease, which she deferred because she did not have insurance or the funds to pay for the specialized test. Moreover, she wanted to determine the efficacy of the antibiotics. After a few months, Mrs. Nicolaou’s urinary problems abated and she started feeling better. She accumulated sufficient funds to pay for the specialized test and it was done. On February 13, 2010, almost nine (9) years from the time she was bitten by the tick, Mrs. Nicolaou received her test results, and learned that she did in fact have Lyme disease. Later that day, Mrs. Nicolauo posted a message on her Facebook page stating that her test results were positive for Lyme disease. She also stated that she had been telling everyone for years that she thought she had Lyme disease, and that her doctors had ignored her. On February 10, 2012, Mrs. Nicolaou sued her health care professionals that treated her from 2001-2007, alleging negligence for failing to diagnose and treat her Lyme disease. She further claimed that due to her health care provider’s negligence, her Lyme disease infection became chronic and permanent, confining her to a wheelchair. After discovery was completed, the defendants filed a motion for summary judgment claiming that Mrs. Nicolaou’s claims should be dismissed because she filed her claim beyond the statute of limitations. More specifically, the defendants argued that Mrs. Nicolaou should have known that she had a compensable claim well before February 13, 2010 due to her Facebook post, and the fact that she was getting better on antibiotics administered to treat Lyme disease. The trial court agreed with the defendants and dismissed Mrs. Nicolaou’s claim; and the Pennsylvania Superior Court affirmed. The Pennsylvania Supreme Court agreed to hear Mrs. Nicolaou’s appeal. In Pennsylvania, the statute of limitations for filing an action to recover damages for injuries to the person caused by the wrongful act, neglect, or negligence of another is two years. 42 Pa.C.S. § 5524(2). An exception to this general rule is the discovery rule, whichthe tolls the statute of limitations where the plaintiff is reasonably unaware that she has been injured and that her injury has been caused by another party’s conduct. Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005). Under the facts of this case, and pursuant to the application of the discovery rule, the Pennsylvania Supreme Court felt the determination of the point in time Mrs. Nicolaou should have reasonably been aware that she had suffered a compensable injury is a factual issue best determined by the collective judgment, wisdom and experience of jurors. Moreover, the Court held that it was for the jury, and not a court, to determine whether a person in Mrs. Nicolaou’s circumstances acted reasonably in delaying the administration of a fifth Lyme disease test to confirm the probable diagnosis. Image courtesy of Unsplash.

Monsanto’s weed killer Roundup is in the news this week, once again, for all the wrong reasons. A new report from the Environmental Working Group (“EWG”) finds that dozens of common breakfast cereals and snack bars – including staples like Cheerios and Quaker Oates – are contaminated with glyphosate, the cancer-causing herbicide found in the weed killer Roundup, at levels higher than what EWG scientists consider protective of children’s health. Nearly every sample of conventionally grown oats tested by the EWG was contaminated with glyphosate at levels considered to be higher than those protective of children’s health. An earlier report found similar results in over thirty oat-based foods. This food contamination comes from use of Roundup on the oat and grain crops from which popular breakfast foods are processed. The EWG’s report found glyphosate contamination of some foods on the order of 1,000 parts per billion (by comparison 160 ppb is considered a benchmark safety level for lifetime risk). Although measured in parts per billion, it is widely known that even small exposures can accumulate and add up over a lifetime to significantly increase one’s risk of developing cancer. As a parent, it is highly concerning to think that all the while my kids have been eating their “heart health” Cheerios, they were getting dosed with carcinogenic weed killer. And while Monsanto (now Bayer AG) and other companies that profit mightily from Roundup use continue to deny any cancer risk from it, just this week the California Court that presided over the country’s first Roundup/cancer trial (resulting in a $289 million verdict in favor of the cancer victim) rejected Monsanto’s Motion to vacate the verdict finding that sufficient evidence existed for the jury to concluded that the plaintiffs’ Roundup exposure caused his non-Hodgkin’s lymphoma. Not everyone is taking this disturbing news lying down. To date more than 156,000 people have signed a petition from EWG and Just Label It calling on General Mills, Quaker and Kellogg’s to eliminate glyphosate from its food. Other companies, including MegaFood, Ben & Jerry’s, Stonyfield Farm, MOM’s Organic Market, Nature’s Path, One Degree Organic Foods, Happy Family Organics, Patagonia, PCC Community Markets and Amy’s Kitchen, have joined this effort as well. If you believe that chemicals linked to cancer have no business being in children’s food, click the link above and add your name to the petition. To see just how much glyphosate is in some of your favorite breakfast foods, click here for a complete listing of the products most recently tested. If you or a loved one believes they may have gotten cancer from exposure to Roundup, you should contact an experienced attorney right away to discuss your rights. Image courtesy of Unsplash.

As lawyers who have seen, firsthand, the immense suffering innocent victims have undergone and the excruciating deaths they have experienced from asbestos exposure. It is difficult to fathom how, in this day and age, it could even be possible, but asbestos imports to the U.S. are surging on the basis of the Trump EPA’s signaling that it will do nothing to ban or even reduce the use of asbestos in our country. In fact, just the opposite. This EPA wants to expand the use of this terribly hazardous toxin throughout the U.S. Asbestos imports soared by nearly 2,000 percent between July and August of this year alone on the news, a terrifying trend that is sure to continue under the current administration. In 2016, Congress passed legislation overhauling the federal Toxic Substances Control Act (“TSCA”), giving the EPA new powers to ban and restrict dangerous substances. Asbestos, which has been known for over a century to cause fatal cancers and is the only known cause of mesothelioma (one of the very deadliest cancers), was at the top of the list. The legislative amendments to TSCA now require the EPA to consider all uses of a chemical when evaluating it for safety. However, despite this clear directive, the Trump EPA is ignoring this mandate and appears to be establishing a framework to eventually declare asbestos safe. This is an Orwellian nightmare scenario that has already had the ripple effect of bringing more asbestos into our country and potentially risking tens of thousands of additional lives. The biggest winner so far in this public health gambit appears to be . . . Russia. Go figure? Russia is one of the largest asbestos producers in the world and it has been reported that at least one Russian company, Uralabest, has emblazoned its asbestos packaging with the face of Donald Trump. In response to the administration’s about face on asbestos. But the biggest loser here is clearly the American working public, who will almost certainly face new exposure risks themselves, and carry those risks home to their loved ones, through contaminated clothing and vehicles, for instance. According to the Occupational Safety and Health Administration, there is no safe level of asbestos exposure. So, every one of the fibers contained in the 259 additional metric tons of asbestos that made it to U.S. shores this past August carries the risk of potential premature death for Americans of all stripes. But I guess “thems the breaks” when it comes to “making America great again.” Image courtesy of Pixabay.

In recognition of my birthday today, I am giving a huge shout out to “CHUCKY, THE NOTORIOUS KILLER DOLL DAY.” Dun, dun, dun! I have to say, as cheesy as they are, I love them all. I guess if I had to pick a favorite, it would be the original, Child’s Play. It came out in 1988. It was definitely the scariest. Who would have thought that Charles Ray’s soul transferring into a doll could be so enjoyable? I know he wanted Andy Barclay’s body, but I’m glad he got the doll’s instead. That’s some kind of imaginary poetic justice being stuck inside of a doll for the rest of eternity. If you haven’t heard, they are doing a Child’s Play reboot. I hope it goes back to horror instead of comedy/horror. I like horror flicks the best. Since I am the queen of “B” movies in my household, I have to represent. I have watched them all, even the ridiculously unimaginative ones that are totally unbelievable. My kids make fun of me, except my oldest son, who enjoys them too. His wife tells me what B movies he has watched lately. I just laugh because I know it’s my influence that made him that way. At least one of my children shows good sense. I have whiled away many hours watching movies someone else considered “Bs,” but to me, most of them were excellent. There’s nothing better on a chilly fall day than curling up on the couch and getting ready for some delightfully scary horror flicks. So in honor of my birthday, and, of course, Chucky, the Notorious Killer Doll Day, pop some popcorn, grab a drink, have a seat on the couch and watch Child’s Play Image courtesy of Unsplash.

The Seventh Amendment to the United States Constitution says that, in civil cases, “the right of trial by jury shall be preserved.” West Virginia’s Constitution also protects this important right, guaranteeing that “the right of trial by jury, if required by either party, shall be preserved.” But what makes this right so important? The Founding Fathers believed that the right to a jury was absolutely fundamental. Consider the words of Thomas Jefferson: “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Patrick Henry was convinced that jury trials empowered the common man and guarded against oppression: “Why do we love this trial by jury? Because it prevents the hand of oppression from cutting you off ... This gives me comfort—that, as long as I have existence, my neighbors will protect me.” Philosopher Lysander Spooner put it even more bluntly: “If a jury have not the right to judge between the government and those who disobey its laws, the government is absolute, and the people, legally speaking, are slaves.” The Supreme Court has recognized that juries are meant to give the people a common voice: “ purpose of a jury is to . . . make available the common-sense judgment of the community.” It is through the jury system that community men and women of all races, creeds, and backgrounds come together and speak with one voice—demanding that those who do harm must be held accountable. To a derelict doctor, a jury can say: “If your negligence causes injury to one of your patients, you will not walk away. You will compensate that patient!” To a company that puts profits over the safety of its workers, a jury can say: “Enough! You will not treat workers like that in our community!” The voice of the jury can be powerful. The voice of the jury can be a force for change. But there are efforts that are meant to silence the jury’s voice. Next time, we’ll take a closer look at what those are. Image courtesy of Unsplash.

In Chandler v. L’Oreal USA, the United States District Court for the Western District of Pennsylvania has determined that L’Oreal’s Regular Optimum Salon Haircare ® Defy Breakage Salon No-Lye Relaxer (“Defy Breakage relaxer”) is not a defective product and dismisses plaintiff’s claims. Ms. Chandler had been using L’Oreal’s Dark and Lovely ® relaxer regularly for the past decade. On one occasion, the store was out of the product, so she elected to purchase L’Oreal’s Defy Breakage relaxer for the first time. She did not observe the exterior packaging, which showed a female model with straight hair, and contained the following small print language, “IMPORTANT – READ & FOLLOW THE SAFETY INSTRUCTIONS,” which she did not read. The safety instruction, in part, instructed the consumer to perform a “strand test” before relaxing. Because she regarded her hair as “coarse,” she left the product on for 20 minutes in accordance with the instructions for use for that hair type. When she rinsed off the relaxer, some of her hair fell out and went down the drain. Ms. Chander was diagnosed with traumatic alopecia, and despite treatment, her hair had not returned to its preinjury state. Plaintiff sued L’Oreal asserting product liability claims for strict liability, negligence, breach of implied warranty, fraud and violations of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). Defendants maintained that the plaintiff failed to establish evidence to demonstrate that the Defy Breakage relaxer was defective and that the product’s advertising contained any misrepresentations upon which she justifiably relied. In order to bring a claim for strict liability, negligence, and breach of warranties, plaintiff must prove that the product was defective. A dangerous product can be considered defective for strict liability purposes if it is distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product. Davis v. Berwind Corp., 647 Pa. 260 (Pa. 1997). Under Section 388 of the Restatement (Second) of Torts, a manufacture has a duty to exercise reasonable care to inform those for whose use the article is manufactured of the facts which make it likely to be dangerous. In both strict liability and negligence claims, the plaintiff must show that the absence or inadequacy of the warnings was the cause of the injury. Igwe v. Skaggs, 258 F. Supp. 3d 596 (W.D. Pa. 2017). In this case, the Court determined that the plaintiff failed to establish sufficient proof to show that the Defy Breakage product’s warnings were inadequate, and no evidence to show that an adequate warning may have prevented her injury. The Court reasoned that the product’s warnings notified consumers that failure to follow the instructions may result in permanent hair loss. Further, the Court held that a more detailed warning would not have made a difference because the plaintiff did not read the warnings on the exterior of the package, and while she read the warnings/instructions inside the box, she ignored them. Plaintiff also asserted a claim for a manufacturing defect, i.e. strict liability and breach of the implied warranty of merchantability. A manufacturing defect can be established by direct evidence of a breakdown in the machine or a component thereof or by circumstantial evidence of a product malfunction as long as plaintiff rules out abnormal use or secondary causes of the injury. Smith v. Howmedica Osteonics Corp., 251 F. Supp. 3d 844 (E.D. Pa. 2017). Under the “malfunction theory,” plaintiff may be able to rely on the following types of circumstantial evidence to show a defect: (1) the malfunction of the product; (2) expert testimony as to a variety of possible causes; (3) the timing of the malfunction in relation to when the plaintiff first obtained the product; (4) similar accidents involving the same product; (5) elimination of other possible causes of the accident; and (6) proof tending to establish that the accident does not occur absent a manufacturing defect. Barnish v. KWI Bldg. Co., 602 Pa. 402 (Pa. 2009). Here, because plaintiff did not retain a portion of the product, it could not be tested to determine if it adhered to the product specifications. Similarly, she failed to establish a defect in the entire batch or line of relaxer products from which she purchased was manufactured. Finally, the Court did not believe that the plaintiff met her burden under the malfunction theory because she only used the product on a single occasion and admits that she did not adhere to all of the provided instructions and warnings in that she did not conduct a strand test to determine how her hair would react to the product or how long it should be applied. “Given these admissions, a reasonable jury could not infer that an unspecified defect caused a malfunction when the more likely explanation is the abnormal use.” Lastly, the Court addressed the plaintiff’s UTPCLP and fraud claims. The UTPCPL provides a private right of action for consumers harmed by unfair methods of competition or deceptive business practices. 73 P.S. Sec. 201-9.2(a). In order to maintain a cause of action under the UTPCPL, a consumer must show that (1) she purchased or leased the good primarily for consumer purposes, (2) she suffered some ascertainable loss, and (3) the loss resulted from an unlawful method, act, or practice under the statute. Toy v. Metro. Life Ins. Co, 928 A.2d 186 (Pa. 2007). Plaintiff is also required to prove that she justifiably relied on the defendant’s wrongful conduct or representation and that she suffered harm as a result of that reliance. Yocca v. Pittsburgh Steelers Sports, Inc., 584 A.2d 425 (Pa. 2004). With respect to fraud, plaintiff must show: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) that the resulting injury was proximately caused by the reliance. Shuker v. Smith & Nephew, PLC, 885 F.3d 760 (3d Cir. 2018). Here, the Court determined that the plaintiff had not justifiably relied upon any of the alleged misrepresentations on the products’ packaging, as she did not read it. Image courtesy of Unsplash.

Mobile elevating work platforms, more commonly referred to as aerial lifts, have replaced ladders and scaffolding on many job sites due to their mobility and flexibility. While theses aerial lifts often provide a more safe and efficient way to perform work at heights, unfortunately, these devices are not without their own inherent dangers. One of the known hazards associated with aerial lifts, which can lead to personal injury or death, is contact with ceilings, pipes and other overhead objects which result in trapping and crushing injuries to the operator. Occasionally, operators of these devices have been known to become trapped between the machine and surrounding objects forcing their torso onto the operator controls. As the person’s torso is forced onto the controls, the controls become activated in a manner that further moves the machine and operator towards the obstacle, worsening the operator’s injuries and often resulting in death to the operator. This situation is known in the industry as Sustained Involuntary Operation. Use of a safety system which eliminates Sustained Involuntary Operation gives the operator a vital second chance. In the mid to late 2000s, along with the growth of use of aerial lifts came an increase in the number of serious or fatal accidents, with an increase in reports of operators becoming trapped over the platform controls of the machines. Instead of accepting any blame for these injuries and deaths, or engineering out, or guarding against the known risk of Sustained Involuntary Operation, the manufacturers of these machines often blamed these incidents on operator error, site conditions, and poor operator training. There are two primary ways to eliminate or guard against operator entrapments due to Sustained Involuntary Operation: Physical Guarding and Pressure Sensing Devices. Physical Guarding These are typically steel structures designed to physically protect the operator from colliding with any surrounding structure before a trapping or crushing incident can occur.  The idea is, once the operator is alerted to the hazard the steel structure will give the operator protection and allow him/her an opportunity to maneuver the platform back to a position of safety. Pressure Sensing Devices There are several different brands and types of pressure sensing devices, however, in general they all act in a similar manner. A pressure-sensitive edge sits between the operator and the platform control panel.  If the operator is pushed against the control during a potential trapping or crushing incident, the pressure sensing device stops the machine from operating, thereby preventing the machine and operator moving towards the obstacle.  The technology appears to function in a similar manner to how an elevator door operates while closing.  In the elevator door situation, when the pressure sensor comes in contact with an object, the doors automatically reverse and open back up so that the object, usually a person or their limbs doesn’t get trapped and crushed by the closing door. This pressure sensing safety device, for use in Aerial Lifts to prevent Sustained Involuntary Operation, has been available on the market since a company, Nifty, first introduced its SIOPS device in 2009. Although this technology has been available since 2009, many other manufacturers of Aerial Lifts have been slow to adopt and incorporate this safety technology into their products. Moreover, while these pressure sensing safety devices can easily be retro-fitted to many Aerial Lifts already on the market, the manufacturers and equipment rental companies that rent out this type of equipment, have been lackadaisical in their efforts to retro-fit and make safe these existing pieces of equipment. Unfortunately, these manufacturers and equipment rental companies seem content to put profits over safety.  Rather than incorporate this lifesaving technology, they continue to conduct business as usually and when a worker gets injured by this industry-wide risk the manufacturers and equipment rental businesses simply blame the worker for inattention or lack of proper training, rather than take responsibility for their failure to utilize this existing safety technology on their equipment. Images courtesy of Niftylift, Genie, & JLG Original Parts. White Paper “Intelligent Secondary Guarding: Advancements in MEWP Safety.  Preventing Trapping and Crushing Incidents.  Mark Keily, QHSE Director, Nationwide Platforms.

Abusive debt collection practices can take a terrible toll, emotionally and practically. Beyond the fear, stress and embarrassment, families can have their bank accounts frozen, making it impossible to pay for their most basic needs. Debt collectors frequently place incorrect information on people’s credit reports, impairing their ability to secure credit, housing and even employment on some occasions. Many of our clients have experienced harassing phone calls; demands for payments not truly owed; illegal threats of bogus consequences for failing to pay, up to and including imprisonment; or lawsuits to collect stale debts that are barred by the applicable statute of limitations. These abuses are disturbingly common. Consumer complaint data indicates the most common grievances are mistaken information and what the Consumer Financial Protection Bureau calls “aggressive communication tactics and threats.” Fortunately for West Virginians, strong state remedies exist. Significant penalties are provided, along with the right to recover your actual damages, including for your emotional distress, and your attorneys’ fees. Consider contacting us if you have been subjected to the practices described herein, including: (1) threats that non-payment will result in arrest or garnishing wages without informing the consumer that a judicial order is necessary for any garnishment; (2) the collection of old debt that may be passed the statute of limitations; (3) collection or threatened assessment of attorneys’ fees; (4) the communication with any employer of information relating to an employee's indebtedness; (5) the disclosure of information relating to a consumer's indebtedness to any relative or family member of the consumer if such person is not residing with the consumer; (6) any communication with a consumer whenever it appears that the consumer is represented by an attorney; (7) any false representation of the extent or amount of a debt, or of its status in any legal proceeding; (8) any false reports by creditors to credit reporting agencies and (9) auto-dialed collection calls made to your cell phone without your permission.

Today, October 16, is National Bosses Day. I’m fortunate to work for Jason Causey, who’s not only one of the very best and brightest in his field (representing consumers like you and me), but he’s also very kind and wants to help people in financial difficulty. Bosses Day gives the staff here at Bordas & Bordas an opportunity to show our appreciation to those we work for and with whom we spend so much of our time. Some years we provide a nice breakfast for them, which proves a little difficult since usually several are out of the office attending trials, depositions and hearings. Not sure what’s in store for them this year?? What makes a good boss? Fairness, honesty, understanding, approachability, a good communicator? Sounds like the traits you would want to have in your attorney, right? Also, good traits to have as a parent, child, student, neighbor or friend. The origin of Bosses Day dates back to 1958. Patricia Bays Haroski, an employee at State Farm Insurance Company in Illinois, registered it with the U.S. Chamber of Commerce. Ms. Haroski chose the date because it was her father's birthday. Who was her boss? ....her father. Hope you take time this month to recognize your boss! Image courtesy of Unsplash

As an attorney, I often talk to potential clients on the phone regarding a variety of issues. Regardless of what their issue may be, they can do a number of things in preparation for a successful first phone call with a lawyer. The following are just some of the things a person can do when calling a lawyer for the first time: 1. Contact information – Have your contact information ready to provide to the attorney. Your name, address, email, and all phone numbers at which you can be reached. Also, make sure that when you provide this information that you specify whether the attorney is permitted to leave a message with anyone else in the household. I often ask this question, but it can helpful for a client to let the attorney know, as well. 2. Have a summary of your issue(s) – Before contacting an attorney, give some thought to your issue(s) and summarize the key aspects of your problem. I often find that when people call me to discuss an issue they are nervous and forget details. By jotting down some notes and summarizing your issue(s), this can alleviate some of the nervousness and help you express more clearly why you feel you need an attorney. 3. Have important dates and names handy – Always have important dates and names handy, so that you can provide them to the attorney. One of the first things an attorney may ask you after your name are the names of anyone else involved, so that they can determine if there are any conflicts. Also, dates are very important because the attorney has to determine if there are any statute of limitations issues. 4. Have a calendar in front of you – When talking with an attorney, often times you are nervous and forget dates and days, so having a calendar in front of you when talking to them can be helpful. 5. Have all related documents in front of you – Make sure that all related documents are in front of you when contacting an attorney, as much of the pertinent information will often be contained in those documents. For example, if you have been involved in a motor vehicle accident, having the accident report, hospital records and insurance declaration page, can be very helpful, as it will contain most of the information an attorney will need to determine if they can assist you or not. Hopefully, if you follow these tips it will help make your initial phone call with an attorney a success! Image courtesy of Unsplash

The question of what a speed limit is in a construction zone can be confusing. There is some conflict as to what the speed limit is an active work zone versus a work zone. A party going over the posted speed limit may attempt to argue that unless the work zone is active, the speed limited is the standard speed limit and not the reduced post speed limit in the construction zone. Don’t let that argument be made although at first blush it may appear such an argument is correct. A closer review of the law shows that the work zone need not be “active” for the lower reduced speed limit to apply. Law “Active work zone” is defined as “The portion of a work zone where construction, maintenance or utility workers are located on the roadway, berm or shoulder.” (emphasis added) 75 Pa. C.S.A. § 102. When passing through an active work zone, a person must not drive a vehicle at a speed greater than the posted limit. 75 Pa. C.S. § 3365(c.1). The section reads: “(c.1) Active work zones. When passing through an active work zone, no person shall drive a vehicle at a speed greater than the posted limit. An official traffic-control device shall indicate the beginning and end of each active work zone to traffic approaching in each direction.” A person driving at a speed greater than the posted limit when passing through an active work zone is guilty of a summary offense which carries with it a fine. 75 Pa. C.S. § 3365(d)(1)(i). From this specific section, it would appear that for the speed limit to apply, the workers must be, in the present tense, located in the construction zone at the time of the incident. However, don’t be fooled into accepting and believing the same. As there is more law on this issue that shows a very technical requirement for the same and that the speed limit may apply even if the workers are not actively working the area. The state of Pennsylvania requires specific signs and lights to designate an active work zone. An official traffic-control device must indicate the beginning and end of each active work zone to traffic approaching in each direction. 75 Pa. C.S. § 3365(c.1). 75 Pa. C.S. § 3326(d)(1) requires proper notice of traffic-control devices by placing these objects to notify motorists that increased penalties apply for moving violations in active work zones. In addition, 75 Pa. C.S. § 3326(d)(1) says that official traffic control devices shall be appropriately placed to notify motorists that increased penalties apply for moving violations in highway safety corridors. 75 Pa. C.S. § 3326(e) states that official traffic-control devices shall be erected at the beginning of an active work zone with a white strobe light or other unique, illuminated light or device. The light or device shall indicate that workers are present in the active work zone. Id. The light or device shall be turned off if no workers are present. Id. An official traffic-control device shall be erected immediately at the end of the active work zone indicating that workers are no longer present. Id. According to 67 Pa. Code § 212.419(d), the “Active Work Zone When Flashing” Sign (W21-19) shall be erected as close as practical to the beginning of the active work zone. In addition, 67 Pa. Code § 212.419(d)(3) states that the W21-19 signs shall be installed on temporary sign posts or on Type III barricades, and a white Type B high-intensity flashing light must be attached to the upper portion of each W21-19 sign. The light shall be activated only when workers are present, and deactivated when workers are not anticipated during the next 60 minutes. Lastly, 67 Pa. Code § 212.419(e) concludes that the “End Active Work Zone Sign” (W21-20) shall be erected immediately at the end of each active work zone, except this sign is not necessary if either the “End Road Work” Sign (G20-2a) or the “End Work Area Sign” (G20-3) is installed at the end of the active work zone. The Pennsylvania Department of Transportation’s website summaries the requirements of an active work zone: “Active work zones must be designated as such to notify motorists when they enter and leave the work zone. A white flashing light attached to the ‘Active Work Zone When Flashing’ sign will indicate an active work zone. The flashing light will only be activated when workers are present and turned off when workers are not present.” Pennsylvania Department of Transportation, Work Zone. This only adds to the appearance that the work zone must be active to require the reduced speed. However, that is not the law. As there are areas termed “work zones” that require the posted reduced speed limits to be followed and there is law that allows Penn DOT to post a reduced speed limit regardless if it is an active work zone or not. The term “ work zone” is defined as “The area of a highway where construction, maintenance or utility work activities are being conducted which is properly signed as a work zone in accordance with regulations of the Department of Transportation.” 75 Pa. C.S.A. § 102. Motorists are required to exercise special caution in driving in construction and maintenance areas, and there are often reduced speed limits that are temporarily in place during such construction. Dale G. Larrimore, 13 West's Pa. Prac., Pennsylvania Rules of the Road § 7:7 (2016–2017 ed.)  While driving through work zones, drivers are required to exercise more than ordinary caution in the operation of vehicles. Brenton v. Colbert, 157 A. 619, 620 (Pa. 1931). In an effort to keep both highway workers and the traveling public safe, it is critical to establish sufficient warnings, at the proper distances. Dale G. Larrimore, 13 West's Pa. Prac., Pennsylvania Rules of the Road § 3:10 (2016–2017 ed.). A Pennsylvania court held that classifying a work zone as not active at the time of vehicle stop simply because there were no workers in the posted 40 mph construction zone through which the defendant was speeding was too narrow of an of interpretation. Com. v. Reid, No. CP-36-CR-0003038-2013, 2015 WL 7299802 at *3 (Ct. Com. Pl April 8, 2015). In addition, although there were no workers between the mileposts where the vehicle was pulled over for speeding, there was workers on the road further west of that location. Id. The court in this case held that based upon the facts that the posted reduced speed limit of 40 mph and the proximity to active workers in the construction zone, it was found that the defendant was driving in an active work zone. Id. Something to note about this case is that it is a memorandum decision. According to Pennsylvania Superior Court Internal Operating Procedure (IOP) § 65.37(A): “An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding....” 210 Pa. Code § 65.37. Analysis of hypothetical situation: Multiple signs, with and without flashing lights, have designated the speed limit as 45 mph where the accident occurred. In addition, a state trooper observed the reduced speed limit as 45 as well. While there were no workers on that side of the rode while the accident took place, there were workers on the other side of the highway and there were proper signage stating a reduced speed limit and barriers to designate a work zone. Therefore, at the very least the area should be classified as a “work zone” since there is construction, maintenance or utility work activities being conducted and the area is properly signed as a work zone. 75 Pa. C.S.A. § 102. A common-sense argument, not necessarily a legal one, for why there are these signs in a work zone is to not only protect the workers when they are there, but to also alert drivers of traffic patterns and construction equipment. In an effort to keep both highway workers and the traveling public safe, it is critical to establish sufficient warnings, at the proper distances. Dale G. Larrimore, 13 West's Pa. Prac., Pennsylvania Rules of the Road § 3:10 (2016–2017 ed.). By putting these signs before, during, and after a work zone, motorists have time to adjust their driving and anticipate obstacles. Not having workers on that side of the highway does not mean it is not a work zone and it does not diminish the need for drivers to exercise more than ordinary caution in the operation of vehicles. While it is easier to establish there is a work zone from the facts of our case, Com. v. Reid can help us make the argument that there was an active work zone present. Though Reid has no precedential value, it stated that despite there being no workers on the segment of the highway the crime took place, the area was still designated an active work zone since there were workers west of that location. Here, there are workers on the other side of the highway. It can be argued, though maybe a stretch, that this dynamic fits within the definition of an active work zone since the portion of a work zone where construction, maintenance or utility workers are located on the roadway, just going the opposite way on that roadway. It would obviously be more advantageous to have the area deemed an active work zone since there is an ample amount of statutes stating that the speed limit is definitely the rate stated by the construction signs. However, as stated above, there are some good common-sense arguments to why that posted reduced limit would also apply for any work zone, active or inactive. Here are the two statutes that govern speeding in PA. I cite 336. 75 Pa.C.S.A. § 3361 § 3361. Driving vehicle at safe speed No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions. 75 Pa.C.S.A. § 3362 § 3362. Maximum speed limits (a) General rule.-- Except when a special hazard exists that requires lower speed for compliance with section 3361 (relating to driving vehicle at safe speed), the limits specified in this section or established under this subchapter shall be maximum lawful speeds and no person shall drive a vehicle at a speed in excess of the following maximum limits: (1) 35 miles per hour in any urban district. (1.1) 65 miles per hour or 70 miles per hour for all vehicles on freeways where the department has posted a 65-miles-per-hour or 70-miles-per-hour speed limit. (1.2) 25 miles per hour in a residence district if the highway: (i) is not a numbered traffic route; and (ii) is functionally classified by the department as a local highway. (2) 55 miles per hour in other locations. (3) Any other maximum speed limit established under this subchapter. (b) Posting of speed limit: (1) No maximum speed limit established under subsection (a)(1), (1.2) or (3) shall be effective unless posted on fixed or variable official traffic-control devices erected in accordance with regulations adopted by the department which regulations shall require posting at the beginning and end of each speed zone and at intervals not greater than one-half mile. (2) No maximum speed limit established under subsection (a)(1.1) shall be effective unless posted on fixed or variable official traffic-control devices erected after each interchange on the portion of highway on which the speed limit is in effect and wherever else the department shall determine. (c) Penalty: (1) Any person violating this section is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of: (i) $42.50 for violating a maximum speed limit of 65 miles per hour or higher; or (ii) $35 for violating any other maximum speed limit. (2) Any person exceeding the maximum speed limit by more than five miles per hour shall pay an additional fine of $2 per mile for each mile in excess of five miles per hour over the maximum speed limit. § 3363.  Alteration of maximum limits. On highways under their respective jurisdictions, local authorities subject to section 6109(e) (relating to specific powers of department and local authorities) or the department, upon the basis of an engineering and traffic investigation, may determine that the maximum speed permitted under this subchapter is greater or less than is reasonable and safe under the conditions found to exist upon any such highway or part thereof and establish a reasonable and safe maximum limit. The maximum speed limit may be made effective at all times or at times indicated and may vary for different weather conditions and other factors bearing on safe speeds. No maximum speed greater than 55 miles per hour shall be established under this section except on highways listed in section 3362(a)(1.1) (relating to maximum speed limits), where the maximum speed for all vehicles shall not be greater than 70 miles per hour. (June 13, 1995, P.L.57, No.9, eff. 30 days; Dec. 21, 1998, P.L.1126, No.151, eff. 60 days; Nov. 25, 2013, P.L.974, No.89, eff. imd.) Section 75 Pa CSA 102 defines "Department." The Department of Transportation of the Commonwealth. 2013 Amendment. See the preamble to Act 89 in the appendix to this title for special provisions relating to legislative findings and declarations. 1995 Amendment. See section 4 of Act 9 in the appendix to this title for special provisions relating to report on effect of increased speed limit. § 3111. Obedience to traffic-control devices (a) General rule: Unless otherwise directed by a uniformed police officer or any appropriately attired person authorized to direct, control or regulate traffic, the driver of any vehicle shall obey the instructions of any applicable official traffic-control device placed or held in accordance with the provisions of this title, subject to the privileges granted the driver of an emergency vehicle in this title. (a.1) Penalty.-- (1) A person who violates this section commits a summary offense and shall, upon conviction, pay a fine of $150. No costs or surcharges imposed under 42 Pa.C.S. § 1725.1 (relating to costs) or section 6506 (relating to surcharge) shall be assessed or imposed upon a conviction under this section. (2) Notwithstanding any other provision of law, including 42 Pa.C.S. § 3733(a) (relating to deposits into account), the fine collected under paragraph (1) shall be deposited as follows: (i) Twenty-five dollars of the fine shall be deposited as provided under 42 Pa.C.S. § 3733(a). (ii) After deposit of the amount under subparagraph (i), the remaining portion of the fine shall be deposited into the Public Transportation Trust Fund. (b) Proper position and legibility of device: No provision of this title for which official traffic-control devices are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a particular section does not state that official traffic-control devices are required, the section shall be effective even though no devices are erected or in place. (c) Presumption of authorized placement: Whenever official traffic-control devices are placed or held in position approximately conforming to the requirements of this title, the devices shall be presumed to have been so placed by the official act or direction of lawful authority, unless the contrary shall be established by competent evidence. (d) Presumption of proper devices.--Any official traffic-control device placed or held pursuant to the provisions of this title and purporting to conform to the lawful requirements pertaining to such devices shall be presumed to comply with the requirements of this title, unless the contrary shall be established by competent evidence. Both 75 Pa.C.S.A. § 3111(a) and 75 Pa.C.S.A. § 3111(c) could be relevant to our analysis. Section 3111(a) states the general rule that drivers shall obey any applicable official traffic-control device. According to 75 Pa.C.S.A. § 102 “official traffic-control devices” are defined as “Signs, signals, markings and devices not inconsistent with this title placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning or guiding traffic.”. In addition, 75 Pa.C.S.A. § 6122 states that “The department on State-designated highways and local authorities on any highway within their boundaries may erect official traffic-control devices…”. Thus, Penn DOT had the authority to erect that sign. And since 75 Pa.C.S.A. § 3111(c) says that the devices shall be presumed to have been placed by the official act or direction of lawful authority, we can presume that Penn DOT placed the sign there and, as stated above, Penn DOT has the proper authority to place the sign. Thus, making that speed limit the valid rate which drivers should obey under the general rule of § 3111(a). 75 Pa.C.S.A. § 3111 was utilized in in Commonwealth v. Gernsheimer, 419, A.2d 528 (Pa. Super. 1980) to establish that a reduced speed limit was valid despite it being lower than what was prescribed by75 Pa.C.S.A. § 3362 without a verifying engineering report. In that case the defendant had been found guilty of operating his automobile at a speed of sixty (60) miles per hour in a speed zone, marked by traffic-control signs, which established the maximum allowable speed at forty-five (45) miles per hour in violation of 75 Pa.C.S.A. § 3362(a)(3). He appealed alleging that a speed zone in which the maximum speed is set at less than fifty-five (55) miles per hour under § 3362(a)(3) is unlawful unless such a speed zone is established on the basis of an engineering and traffic investigation citing 75 Pa.C.S.A. § 3363 for this proposition. 75 Pa.C.S.A. § 3111(c) provides for the presumption that official traffic-control devices, such as a sign establishing a 45 mile per hour speed limit, are validly placed by an official act or direction or lawful authority. It is uncontested that the speed limit signs were official signs and that they were posted so as to have been readily observable by the motoring public. The Commonwealth was, therefore, entitled to the presumption that they were lawfully authorized. In addition, Pa.C.S.A. § 3111(a) gives deference to any applicable official traffic control devices displayed by stating that the general rule is that drivers shall obey the instructions of these devices. Analysis of hypothetical situation Multiple signs, with and without flashing lights, have designated the speed limit as 45 mph where the accident occurred. While there were no workers on that side of the rode while the accident took place, there were workers on the other side of the highway and there were proper signage stating a reduced speed limit and barriers to designate a work zone. Therefore, at the very least the area should be classified as a “work zone” since there is construction, maintenance or utility work activities being conducted and the area is properly signed as a work zone. 75 Pa. C.S.A. § 102. A common-sense argument, not necessarily a legal one, for why there are these signs in a work zone is to not only protect the workers when they are there, but to also alert drivers of traffic patterns and construction equipment. In an effort to keep both highway workers and the traveling public safe, it is critical to establish sufficient warnings, at the proper distances.Dale G. Larrimore, 13 West's Pa. Prac., Pennsylvania Rules of the Road § 3:10 (2016–2017 ed.). By putting these signs before, during, and after a work zone, motorists have time to adjust their driving and anticipate obstacles. Not having workers on that side of the highway does not mean it is not a work zone and it does not diminish the need for drivers to exercise more than ordinary caution in the operation of vehicles. While it is easier to establish there is a work zone from the facts of our case, Com. v. Reid can help us make the argument that there was an active work zone present. Though Reid has no precedential value, it stated that despite there being no workers on the segment of the highway the crime took place, the area was still designated an active work zone since there were workers west of that location. Here, there are workers on the other side of the highway. It can be argued, though maybe a stretch, that this dynamic fits within the definition of an active work zone since the portion of a work zone where construction, maintenance or utility workers are located on the roadway, just going the opposite way on that roadway. It would obviously be more advantageous to have the area deemed an active work zone since there is an ample amount of statutes stating that the speed limit is definitely the rate stated by the construction signs. However, as stated above, there are some good common-sense arguments to why that posted reduced limit would also apply for any work zone, active or inactive. Finally, a review of the identified statues allows us to argue that unless the posted speed limit signs are not covered while in active, it is a work zone for the safety of the traveling public. Regardless if there is active construction going on and Penn DOT has the right an authority to post the speed limit to a speed that it feels is warranted under the demographics of the work zone in question. In short, there is an abundance of support that shows the posted speed limit will apply in a work zone, regardless if it is active work zone at the time of the incident. Image courtesy of Unsplash.

The word bullying is a word that we frequently hear and read about in the news. It certainly was present when I was growing up. I remember when I was a 10-year-old, there was a 12-year-old boy who was not particularly well liked by the older kids and who was picked on fairly frequently. As a matter of fact, I was encouraged to play a role in picking on this boy. The moment that I, through peer pressure, decided to join in, still to this day stands out in my mind and is a blemish on who I was at that time. But, I believe that it was also instrumental in who I was to become. I was the oldest of nine children - seven boys and two girls, and I lived in some fairly tough neighborhoods. I was taught by my father to box at an early age. I also was a fairly decent athlete when I was growing up. I could have been identified as a leader if someone cared to do so. At the time, I was not very confident outside of my athletic abilities. It was at age 10 that I was convinced by the older kids to fight the kid that was not so popular. So, I fought the boy, but it was not much of a fight since he did not offer much resistance. I remember the boy was crying, and I was congratulated for beating up this kid that no one seemed to care for. Soon after, I saw the boy, Eddie, and his mother walking across the playground towards my house. I knew that I was really going to be in trouble. Within minutes of Eddie and his mother arriving at my house, my own mother called for me. My mother said, “Jimmy, Eddie and his mother are here, and he has something he wants to say to you.” All I could think about is what I was going to say in defense to Eddie and his mother. I was already thinking of a story that might deflect some of the punishment that I would receive as a result of my actions. In my family, you were never allowed to start a fight, or lose a fight. But, starting a fight was strictly prohibited. Each of us knew that if we started a fight, we would be severely punished. It wasn’t bad enough that Eddie and his mother were at my doorstep getting ready to tell what I had done to Eddie, but I knew that when my dad came home, I would without a doubt be punished. Astonishingly, Eddie’s mother said, “Eddie is so sorry that he has done something that would make you angry enough to want to hit him, and he wants to apologize.” I was absolutely shocked. This was nothing at all what I expected. I immediately burst into tears and ran into my bedroom. I could not believe that this poor innocent kid, whom I picked on, was apologizing to me for something that he felt he had done when he had done absolutely nothing wrong. At age 71, I am starting to forget names. I sometimes even forget faces. But, I will never, for as long as I live, forget the name of Eddie Kuhl or the incredible lesson that his mother taught me. I made a mission after my bad behavior with Eddie to change my life. At age 10, I began thinking for the first time about bullying. I thought, what made the kids that encouraged me to pick on Eddie want to do so, and why did I allow myself to be talked into playing the role of bully! I made up my mind that this would not ever happen again to me and that if I could do something to stand up to bullies, I would do so. As I grew older and approached the eighth grade, I began playing football for the Charleston Catholic High School junior high team. It was at that time in my life that I observed first-hand the seniors bullying the eighth and ninth graders. They would make them run errands for them, and they would push them around and slap them with towels. It seems, looking back, that it was somewhat like a fraternity initiation. I thought to myself that if I was ever strong enough and in the position of a leader that I would change that. When I became a senior, I thought I could assume a leadership role, and in that role, I could encourage my teammates and classmates to look out for the smaller and weaker kids - the underclassmen. It started as just a discussion between my close friends and I that we would not allow the things that we saw as underclassmen happen to the underclassmen now. It would not be tolerated by us as seniors. We also identified the younger and weaker ones on the football team and made a mission to make them feel special and really a member of the team. For example, during away games, we would sing songs on the bus home after we won. We would call out the names of those who were known as the stars of the game. John Shemo, a smaller sophomore who didn’t get much playing time, led us in song every game of my senior year, followed by every classman who did not get to play much. These were the younger kids on the team. We also that year attended daily mass as a unit. Since some of the football players were extremely popular, that encouraged others in school to frequently attend mass. Throughout my life, I continued to have concerns about people being picked on and singled out even as I entered the legal profession. One of the most traumatizing moments I had in my legal career involved a local judge. I had just finished my first criminal case. My client was charged with delivery of LSD, and a policeman had witnessed the transaction and acted as an informant. The only defense we could offer was entrapment. It was the only time that I ever used that defense, and likewise, was the only criminal case that I ever lost. After the verdict, I made a motion for bond to be set for my client so he could remain out of jail while his appeal was being perfected. The hearing was to take place while I was out of town on vacation with my wife. This was the first vacation that I was able to take within the first two years of practicing law, so I arranged for one of my associates to cover for me. This was a routine task for the Court to continue bond until the appeal was finalized. Unfortunately, the associate forgot to attend the hearing. Since the associate did not show up, the Judge called the senior partners at the law firm I was working at and told them that I had missed the hearing and wanted me to call him. I then telephoned the Judge, who I had believed to be my friend. The judge informed me that I had missed the hearing and asked me what had happened. I explained the situation, seemingly to his satisfaction. He then told me to come to Court in the morning and to bring my client with me. When we arrived at the courthouse, I noticed two different television trucks. When we got inside the courtroom, the television crews were setting up and there were a couple of local newspaper reporters. When the Judge entered the room, he glared at me and said, “Mr. Bordas, I am glad that you could make it today. I want you to tell me why you chose to thumb your nose at the Court and ignore your responsibilities to your client this week by failing to attend the bond continuance hearing that had previously been set.” I was stunned. I then said, “Judge, as I told you last night over the telephone …” The Judge interrupted and said, “I don’t want excuses, I want you to tell me what happened.” I then said, “My associate, Greg, was supposed to cover for me. He forgot. Nonetheless, this is my client, and I was the one who was supposed to be there, and I take full responsibility.” The Judge then found me in contempt of Court and ordered me to write a 500-word paper. All of this was being filmed by the television stations and being taken down by the newspaper reporters. I was the subject of the news that day. I later found out that the Judge, whom I thought was my friend, had an ongoing battle with the senior partners of my firm, and they detested each other. He would do anything he could to get at them. In this situation, he got back at them by embarrassing me in front of the county. In fact, this instance was covered locally and nationally. Friends of mine that lived as far away as Florida and Wisconsin called to tease me about what they had seen or read. It was obviously incredibly embarrassing to me and my earliest recognition of bullying by adults. This taught me to be stronger. I have since witnessed first-hand the attempt by others to bully adults throughout my career, and I have found that bullying can occur at any stage or situation in life. Five years ago, my law firm started the anti-bullying program. We recognize children in Ohio, Marshall, and Belmont Counties who most exemplify the ideals of anti-bullying. That person is kind, considerate, courageous, and strong. That person stands out among his or her peers as one who has been able to help prevent bullying that has become so prevalent in our society. A teacher, or anyone for that matter, can identify someone who they think should be recognized. The award is a $500 check, plus tickets to a Pittsburgh Pirates game at our law firm suite, with food and drinks provided by the law firm. This seems to have been a success. The reason we started this is because I wanted to make it popular to be the nice person, the good guy, the one with the courage to stand up to bullying, although it seems to me that the message has to start with the parents and teachers, so it can filter through to kids. In order to get the message to my children, who I hoped would pass it on, my wife and I impressed upon our boys the fact that they needed to be aware of the people who were not blessed with the same opportunities as they were. Hence, if they ever saw someone sitting alone in the cafeteria, they were required to sit by them and talk to them. If they saw someone being bullied or picked on, they were to stick up for them. On the flipside of that, sometimes it is a difficult thing for a parent to ‘walk the walk’ after they were done ‘talking the talk’. I have passed up opportunities to enjoy being with some of my friends to sit with the lonely. This was not necessarily always because it was the right thing to do, but because the message that I have told my kids resonated within me. So, the message I want to relay today through this blog is that in order to try to put a dent in this bullying curse that we have in society, first we need to make it a popular thing to be against bullying. I especially think we need to make it popular to prevent bullying. I think that once we get the kids to buy into this idea, we can begin to bring the bullying curse to an end. It’s going to take a lot of work, courage, and preaching, but I think that with the right attitude, we can greatly reduce the incidents of bullying. Finally, I recently had the fortunate opportunity to watch the movie, Wonder. This is a movie that our law firm took all the Ohio County fifth graders to. I was not able to attend with the fifth graders, but my wife and I were able to watch the movie in Naples, Florida, with practically all of the moviegoers being over the age of 50. My wife and I both cried at times during the movie. Although no producers, actors, or so forth were present in this showing, when the movie was over, there was a round of applause. I have been told this has happened in many of the theaters across the country. It seems that the anti-bullying message is truly one that sells under certain circumstances. We all need to work to find the right buttons to push – then push them. Image courtesy of Unsplash.