Legal Writing for Legal Reading!

Archive for the month “June, 2013”

Rights of Employees in Pennsylvania

Check out Faye Cohen’s blog post “Rights of Employees in Pennsylvania ” on her blog Toughlawyerlady here.

Episcopalian Evicted and Vestry Vacated

As he was leaving Canterbury Cathedral on December 29, 1170, King Henry II of England, frustrated with Archbishop of Canterbury St. Thomas à Becket, mumbled under his breath those fateful words [w]ill no one rid me of this turbulent priest? Four knights who accompanied the King heard his grumble and, later that same day, returned to the Cathedral and martyred the great Saint on the stairs leading to the quire. Fortunately for the Rt. Rev. (now Bishop) David Moyer (Bp. Moyer), the Episcopal Diocese of Pennsylvania was able to rid itself of him in a much less bloody way, but it took a rather impressive amount of litigation to do it.

Over the last decade or so, due to theological division, with the Episcopal Church (Episcopal Church or National Church) choosing to proceed down a wide and liberal road and the orthodox within it choosing to proceed down a narrow and traditional road, a variety of civil litigation has emerged across the country between the Episcopal Church and the orthodox within it. The litigation has mostly regarded the status of church property held by an orthodox congregation within a liberal diocese, the status of an orthodox diocese within the liberal National Church, or the status of an orthodox clergyman relative to a liberal bishop above him.

The issues described above in general have been raging since about 2002 specifically in Montgomery County Court between Bp. Moyer, who was once an orthodox Episcopal priest and rector of the parish Church of the Good Shepherd in Rosemont (Good Shepherd), and the liberal Episcopal Diocese of Pennsylvania (the Diocese) and its equally liberal diocesan bishop, Rt. Rev. Charles E. Bennison (Bp. Bennison). I have written about the above issues and the litigation between Good Shepherd, Bp. Moyer, and the Diocese and/or Bp. Bennison previously in Upon Further Review. With regard to the issue of property ownership, my January 9, 2009, article National Church v. Regional Diocese: Property Ownership by a Religious Institution (which can be found here), described the legal issues surrounding the property disputes within the Episcopal Church. My March 9, 2009, article Episcopalian In-Fighting Spreads to Montgomery County Courthouse (which can be found here), described the legal issues surrounding the defrocking of Bp. Moyer by Bp. Bennison.

Although the precise issues in the above cited articles are slightly beyond the scope of the instant article, they certainly can help the reader get a clearer picture of the legal landscape over which Good Shepherd, the Episcopal Church, the Diocese, Bp. Moyer, and Bp. Bennison have trod in Montgomery County Court to set the tone for the matter described below, In Re: the Church of the Good Shepherd Rosemont, Pennsylvania Incorporated, No.: 09-0609. Suffice it to say here that the Court has essentially ruled that Bp. Moyer is no longer an employee of the Diocese and has no right to engage in clerical functions within the context of the Diocese and/or the Episcopal Church. The matter before the Court in In Re: the Church of the Good Shepherd Rosemont, Pennsylvania Incorporated is the determination of who has rightful control over the property of Good Shepherd and whether Bp. Moyer may reside in the its rectory.

The Diocese and the Episcopal Church (Petitioners) filed a Petition for Citation against Good Shepherd, Bp. Moyer, and members of Good Shepherds parish Vestry (the layman’s governing body) for possession of the Good Shepherd property and the removal of both Bp. Moyer and the Vestry members for attempting to obstruct and/or remove Petitioners from possession and/or control of the aforesaid property. After a complex web of responsive pleadings, including a series of opposing preliminary objections, the Petitioners filed for Summary Judgment against Good Shepherd and it is in the context of summary judgment that Judge Stanley Ott entered the Order at issue herein.

The Court reviewed the history of Good Shepherds property. Good Shepherd was incorporated in 1870 and in the charter for the parish it declared that it was a member of both the National Church and Diocese. The charter is consistent with the canons and constitutions of both the Diocese and National Church which mandate that parish property is held in trust for the Diocese and, in turn, the National Church. The canons and constitutions also prohibit parish property from being alienated without the consent of the Diocese. The deed to the parish was transferred to the Diocese in 1910 but was subsequently deeded back to the parish in 1967 with the proviso that it be used for worship according to the doctrine and discipline of the National Church.

The primary issue addressed by Judge Ott is who or what controls Good Shepherds property. In support of its petition, Petitioners set forth six (6) arguments: (1) Good Shepherd announced that it is no longer a part of the Diocese and/or National Church and was seeking affiliation with another denomination; (2) Good Shepherd continued to employ Bp. Moyer despite his defrocking in 2002 and the Diocesan canons requiring parishes to only employ clergy licensed by the Diocese; (3) Bp. Moyer entered Holy Orders in another denomination; (4) Good Shepherd has employed other priests not licensed by the Diocese; (5) Good Shepherd has used parish assets to support activities to subvert the Episcopal Church and/or the Diocese; and (6) the diocesan canons authorize the bishop, with consent of the Standing Committee (the Diocese’s layman’s governing body), after a determination has been made that a parish ceased to act in accordance with the Diocese’s constitution and canons, to take necessary measures to take over the parish’s property. The Diocese, through both its Standing Committee and bishop, believed that due to the actions of Bp. Moyer and the members of the Vestry, Good Shepherd had ceased to act within the canons and constitution of the Diocese and were taking necessary measures to take over its property.

Good Shepherd, in response to the Petition, answered the above six (6) arguments as follows: (1) it denied that it has determined to sever ties with the National Church or Diocese; (2) it alleged Bp. Moyer, though not licensed in the Diocese, was licensed by other Dioceses of the Episcopal Church, Anglican Communion, and the Archbishop of Canterbury; (3) it alleged parish assets are still used for the benefit of the Episcopal Church; (4) it denied that the Episcopal Church was hierarchical; (5) it denied that Bp. Moyer entered Holy Orders in a different church; and (6) it alleged the applicable canons and constitutions, when read in concert, do not indicate parish property is held in trust. Finally, Good Shepherd provided various arguments that the Diocesan Bishop of Pennsylvania did not have authority, under the canons and constitution, to bring the action against it.

As an initial matter, the Court, due to the United States Constitutions First Amendment guarantee of the freedom to practice ones religion, ruled that it could not inquire into the propriety of the internal governance or administration of the Church at issue. Further, it also refused, on the same grounds, to rule as to whether Bp. Moyer, who received Holy Orders in another branch of Anglicanism, can still be deemed an Episcopal priest. Regardless of the preceding, the Judge did not believe that either of the above was necessary to make a ruling on the Petition at issue. The Court ruled that although a church was involved, neutral legal principles could be applied to resolve the property dispute raised in the Petition without directly engaging any religious issues.

After all of the above were considered, the Diocese elected to restrict the relief it sought simply to a determination that the rector (Bp. Moyer) and the Vestry members be removed. Presumably the Diocese believed that all of the property dispute issues would be moot if it could successfully oust the rector and Vestry members who they believed were actively engaged in separating Good Shepherd from the Diocese and/or the National Church.

In analyzing the Episcopal Church’s structure, the Court found that it is hierarchical in nature, with a National Church having authority over a diocese which, in turn, has authority over a parish. The Court found that the Vestry of Good Shepherd could be viewed as having taken action to attempt to sever Good Shepherd from both the Diocese and the Episcopal Church. The Court, in the previous case, also found that Bp. Moyer had been defrocked in 2002 and is without license to function as a priest in either the Diocese or the Episcopal Church. With consideration of the above findings, the Judge ruled that it is the will of the Petitioners to evict both Bp. Moyer and the Vestry members and that they had authority to do it. The Petitioners decided to oust Bp. Moyer and the Vestry members because of the very divergent theological and ecclesiastical views between the parties and the Court refused to get involved in those issues. As Bp. Moyer is no longer employed by either the Diocese or National Church, and the Diocese, within an hierarchical church, having control over its property, the Diocese simply has the authority to evict Bp. Moyer out of Good Shepherds rectory and remove the Vestry members from their positions.

Due to the Courts ruling, Bp. Moyer must vacate the rectory immediately, and the Vestry members must immediately step down. Like the knights who martyred St. Thomas, the Petitioners herein, with reference to Bp. Moyer and the Vestry members, can say “let us away this fellow will arise no more.”

Originally published on November 9, 2011 in “Upon Further Review” and can be found here.

Jury Duty!

Believe it or not, I have been called for jury duty.  I have to report by 8:15am tomorrow morning.  The last time I was called was April 2008.  In 2008 I had been licensed to practice law for nearly 6 years so I had no expectation to last more than a few hours because, when the attorneys on the case learned I was an attorney too, I fully expected them to disqualify me.  Much to my surprise, I was not rejected but invited to serve on a jury in Philadelphia!  My service was to observe and issue a verdict on a personal injury case.

I do not have much interaction with juries and, to be perfectly straight forward, I never had a whole lot of faith in the average person making legal decisions, sometimes as profound as life and death.  I have to admit, though, that my lack of faith was entirely without warrant.  I was surprised to see that though the jury I sat on was a relatively normal cross-section of the people of the great City of Philadelphia, the folks I met on that jury all took their role on the jury seriously and truly considered the information and evidence presented.  Indeed, I have to say, that the folks on the jury I served on where much more perceptive than I was in many ways. I spent my time trying to “issue spot” (which is lawyer-speak for discerning the legal issues at play in a given situation) while many on the jury took a very practical approach and were able to discern very real and insightful things about the people testifying, things which I was probably not perceptive enough myself to notice.  Of course, when they pointed these things out the became obvious to me, but it took the other members of jury to do it for me.  So, suffice it to say, the members of the jury truly came together from their varied backgrounds and views and perceptions and were able to develop a picture of the case that I believe was accurate and credible.

I have to say that my experience on a jury has given me confidence to say that while mistakes are sometimes made – it cannot be helped with a bunch of imperfect humans – the jury process is reliable and, I would say, can, for the most part, be trusted to give us the best decisions possible in a given case.  A trial by jury has survived and been honed for centuries for a reason and we should be grateful that the Founders of the United States were wise to keep the tradition of trials by jury alive and well in this country.

So, I am excited to see what jury duty will have in store for me tomorrow.  The odds are I will not be selected on account of being a lawyer, but that is what I said in April 2008 and I still go selected, so anything is possible!

Hell’s Kitchen: Getting to the Meat of the Case

On July 18, 2011, the Superior Court of New Jersey issued a decision in the matter of Gupta, et al. v. Asha Enterprises, LLC et al., Docket No.: A-3059-09T2, in the context of a motion for summary judgment and its response. After hearing arguments and reviewing briefs, the Court affirmed in part and reversed in part the lower court’s decision and remanded the case accordingly.

Most legal remedies include various types of financial and equitable damages, such as liquidated, punitive, compensatory, and specific performance for a wide variety of claims, including breach of contract, physical and/or emotional injuries and defective products. By contrast, the Gupta case presents what seems to be a unique claim seeking an unusual remedy. The Plaintiffs in Gupta found themselves spiritually patronizing Hell’s Kitchen after a sort, having been served religiously inappropriate/impure food despite ordering the opposite. The Gupta case asks the Court to determine whether a spiritual injury is cognizable and, if so, what the remedy for that injury can be.

The Plaintiffs in Gupta were practicing Hindus, and were scrupulously and strictly vegetarian. For them, the consumption of meat, even if by accident, fraud, or deception, meant that their souls became impure, thereby adversely affecting their karma and dharma, and impairing their ability to meet the Divine after death. Their only spiritual remedy after the consumption of meat was to participate in a ritual cleansing bath in the Ganges River in India.

Plaintiffs patronized Defendants’ restaurant and ordered vegetarian samosas which were on the menu. Plaintiffs specifically informed Defendants that the samosas must be vegetarian. Employees of Defendants assured Plaintiffs that the samosas would be vegetarian because that was the only variety that they made. Indeed, the Director of Edison Division of Health Food Services later confirmed that Defendants maintained separate cooking facilities for vegetarian and non-vegetarian foods. After the samosas were prepared, Defendants provided them to Plaintiffs, reassuring them of their vegetarian nature, and labeled them accordingly on their tin-foil wrapping. Unfortunately for Plaintiffs, Defendants mixed up their order with a concurrently ordered meat samosas order. Plaintiffs consumed some of the meat samosas and returned them to Defendants, complaining that they were not what were ordered. Defendants immediately prepared a batch of vegetarian samosas for Plaintiffs, which they accepted and for which they were not charged. Due to Plaintiffs’ consumption of the meat samosas, they believed they experienced profound spiritual injuries.

Plaintiffs brought suit against Defendants raising the following claims: products liability, violation of the Consumer Fraud Act (“CFA”), negligence, breach of implied warranty, and deceptive/fraudulent advertising. I will relate how the Court addressed each of these claims below.

The Court measured Plaintiffs’ products liability claim against the requirements of New Jersey’s Products Liability Act (“PLA”) and the decisions thereunder. Per the terms of the PLA, any and all claims regarding a defective product are subsumed within it. Therefore, all of Plaintiffs’ claims for a defective product sounding in negligence, the CFA, or breach of implied warranty were all individually dismissed as being statutorily subsumed within the PLA. As a point of clarity, Plaintiffs brought claims sounding in negligence, the CFA, or breach of implied warranty that were not brought pursuant to an alleged defective product. These were not dismissed on based on the above, and are each addressed below.

The Court decided that the PLA is applicable to food cooked and sold by restaurants, such as Defendants’, but Plaintiffs’ claims were not cognizable under the PLA as the PLA requires the products sold – in this case samosas – to be defective. The Court pointed out that the meat samosas were not defective themselves, they were simply the wrong product. Accordingly, while the meat samosas were edible and fit for human consumption, they just were not what Plaintiffs ordered. Indeed, the Court noticed that Plaintiffs’ claims focused on the conduct of Defendants’ employees in supplying the order as opposed to any defect in the food itself.

The Court next addressed Plaintiffs’ claims that Defendants were in violation of the CFA because, they allege, Defendants fraudulently and/or deceptively advertised the sale of vegetarian food. The Court conducted an analysis of the CFA after which the Court concluded that a party could be liable under the CFA for misrepresentation in advertising even if the misrepresentation is inadvertent. As long as the statement is false – which in the case of food includes a false/misleading description of its contents – a party can be found liable under the CFA. As a result, as Defendants represented that the samosas were vegetarian when, in fact, they contained meat, the Court determined that Plaintiffs have a cognizable claim against the Defendants for fraudulent/deceptive advertising under the CFA.

Despite the Court’s finding that Defendants did, in fact, commit misrepresentation, the Court was unable to find any evidence of actual loss on Plaintiffs’ part. Under the literal language of the CFA, a plaintiff bringing a claim under it must provide evidence of ascertainable loss of money or property. Based on the language of the CFA, the Court ruled that Plaintiffs did not present any evidence of any “loss of money or property.” Indeed, the Court noted that as the Defendants provided Plaintiffs replacement samosas free of charge, any money or property loss Plaintiffs may have incurred was remedied by Defendants. The Court further ruled that, unfortunately for Plaintiffs, the damages for spiritual injuries being sought by Plaintiffs simply are not a loss of money or property. Due to the clear language of the CFA, and the cases thereunder, the Court was unwilling to expand the language of the CFA to include spiritual losses.

The Court then addressed Plaintiffs’ negligence claims. In its analysis of Plaintiffs’ negligence claims, the Court focused on the duty element of a negligence claim. When making a claim for negligence, a plaintiff must demonstrate that a defendant owes a duty to that plaintiff; the breach of the aforesaid duty constitutes the negligent act. When analyzing Plaintiffs’ claims, the Court had to discern whether Defendants had the ability to foresee that serving meat samosas would or could cause Plaintiffs substantial injury. The Court further noted that foreseeability of an injury is particularly important for the tort of negligent infliction of emotional distress. When reviewing the claim of negligent infliction of emotional distress, the Court pointed out that it is only recognized in limited circumstances: when there is reasonable fear of personal injury and there was substantial bodily injury or sickness as a result of the fear. Based on its above analysis, the Court ruled that Plaintiffs’ claims do not fit into the requirements detailed above because Plaintiffs did not experience substantial bodily injury or sickness as a result of Defendants’ actions.

Finally, the Court addressed Plaintiffs’ claims of breach of express warranty of fitness of the samosas. It reviewed the Uniform Commercial Code which states that the description of goods to be sold creates an express warranty that the goods conform to their description. As Defendants’ samosas were certainly not what they were described by Defendants to be, namely vegetation, the Court ruled that Plaintiffs’ claims of breach of express warranty of fitness was cognizable.

As the Court ruled that Plaintiffs’ claim of implied warranty of fitness was cognizable, the Court then had to determine whether Plaintiffs experienced any cognizable damages, specifically the spiritual damages claimed. The Court indicated that there has been at least one previous case where a religionist (Jewish in that case) successfully sued, and received recoverable damages, for emotional distress as a result of a violation of his religious needs. Though the Court acknowledged that precisely valuing Plaintiffs’ damages will be difficult, that was not a sufficient reason to dismiss Plaintiffs’ claims pursuant to a motion for summary judgment; however, the Court also acknowledged that Plaintiffs must establish that their damages were reasonably foreseeable by Defendants at the time the samosas were sold to Plaintiffs.

Among their damages, Plaintiffs requested recovery for the costs required to travel to purify their souls in India. It was Plaintiffs’ burden to prove that Defendants could reasonably foresee that, due to serving them meat-filled-samosas, Plaintiffs would sustain such spiritual damages as claimed. The Court did not believe that sufficient discovery was done to determine the total amount of damages and whether Defendants could have foreseen them.

As a side note, the Court, in a footnote, indicated that it did not think the litigation of Plaintiffs’ case caused, or could cause, inappropriate religious entanglement with the Court in violation of the First Amendment of the United States Constitution. The Court believed that simply neutral legal principles could be employed that would not involve ruling on religious concepts.

In the end, the Court ruled that almost all of Plaintiffs’ claims were not cognizable; however, the Court did ultimately rule that Plaintiffs do have at least a limited claim and that spiritual damages can, at least in theory, be demanded in a context of a civil suit. Perhaps the Court really can require Hell’s Kitchen to be washed with the waters of the Ganges River.

This article was the featured article in the Philadelphia Bar Association’s “Upon Further Review” on September 14, 2011.

Always Contest a Ticket and Go to Traffic Court

From my own personal experience (evidently the police do not appreciate someone trying to get somewhere as fast as possible) and as an attorney representing traffic clients, I think it is safe to say that in practically every instance it is a good idea to contest a traffic ticket.

The first thing to note is that there is no harm at all to do so; the worst thing that could be visited upon someone who contests a traffic ticket is wasting some time down at traffic court and losing in court.  Pleading guilty is, obviously, an automatic loss so blowing a couple of hours to possibly win or plead the charges down does not seem like a huge risk to me.

The benefit to contesting tickets is obvious.  First, it delays the time in which you need to pay the fine if money is tight.  Second, there is a good possibility that the municipality will negotiate with you to plead down the ticket to some lesser charge which generally results in a lower fine and fewer (if any) points on your record.  Third, if you have a good defense and want to risk going to trial instead of plea bargaining, you could win and have the ticket dismissed altogether.

The benefit of winning in court is pretty clear as the ticket is dismissed and therefore no fine and/or penalty is assessed on your driving record accordingly.

The benefit of plea bargaining could have significant implications.  Keeping plea bargaining in mind is important because, if we are honest with ourselves, when the police pull us over it is generally because we were actually speeding or breaking some other traffic law, so winning at trial is unlikely.  So, plea bargaining gives you another way to try and lessen the impact of a traffic violation.  Obviously it is always good to have a less severe penalty and lower fine assessed, but the implications go further than that.  Plea bargaining which results in no or fewer points on your record could mean the difference between insurance rates increasing or staying the same, being on the brink of suspension or still having a buffer, or getting your license suspended or not.  So, needless to say, it is advisable to explore all of your options in court when you get a ticket as it may be the difference between driving and not driving.

Though not directly related with contesting tickets, whatever you do you must pay any fees and penalties assessed.  I can’t tell you how many people call me who discover, perhaps years later, that they are driving on a suspended license due to unpaid fines from years before.  The suspension term, once it catches up with you, would begin now and will cause you much heartache for something you could have easily dealt with before.

Finally, it is important to remember that with each year of clean driving your driving record will be reduced by three (3) points and if you can keep your record at zero points for a year the Commonwealth will reward you by treating you as if you had never previously received a ticket.  Therefore, contesting a ticket can play a significant role in maintaining a decent driving record.

Taking “Aim” at the Second Amendment

Here is an article, by Theodore Y. Choi, Esquire who is a former associate at my firm.  He provides a brief review of Second Amendment Law, which currently is a hot topic.   This article can be found on my website here and was originally published in Upon Further Review on September 13, 2011, and can be seen here.

Clinic Day 6/6/13!

It’s the first Thursday of the month, which means it is Clinic Thursday at the Salvation Army at 55th and Market.  Check us out here.

We have six clients on the docket and four or five volunteers coming, so we should have a very good time of personal consultation, which is not rushed, in order to serve our clients best.  As always, we all hope our clients tonight hear and see Jesus in the volunteers and, as a result,  either deepen their faith or come to faith in him for the first time.

Please pray for us!  It is a blessing to be a part of such a wonderful ministry.

Unemployment Compensation is Not an Automatic Entitlement

Check out Faye Cohen’s blog post “Unemployment Compensation is Not an Automatic Entitlement ” on her blog Toughlawyerlady here.

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