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Archive for the month “May, 2014”

The Gavel’s Greatest Hits

Last week one of my friends sent me a Facebook message of a rather humorous court opinion which got me thinking of some of my favorite court opinions which I will share here.  I hope you enjoy them as much as I do.

When a judge makes a decision, particularly at the appellate level, he will often accompany his decision with an opinion.  An opinion is a judge’s extended explanation, which generally includes a recitation of a case’s  facts and procedural posture, of his legal analysis to demonstrate how and why he made his decision and what led him to make such a decision.  Sometimes, either because the judge is particularly snarky or funny, or he wants to point out just how preposterous the underlying case is, or he wants to make commentary on the case, attorneys, and/or parties involved, or maybe just because it is fun, a judge will draft an opinion that is funny and/or irreverent and/or sarcastic and/or bombastic and/or otherwise notable and worth reading even if one has no interest or need in the case itself.

One of my all time favorites opinions I read in my law school contracts class.  It deals with a guy who saw this Pepsi Cola advertisement regarding accumulating Pepsi points in order to earn various prizes:   In the ad a kid earns a jet after accumulating 7 million Pepsi points.  I think the ad is obviously in fun and the jet also obviously not an actual prize, but that did not stop someone from accumulating 7 million Pepsi points and suing Pepsi Cola for breach of contract when Pepsi refused/failed to give him the jet he worked so hard to earn.  The court, which of course ruled in favor of Pepsi, entered a hilarious opinion when it did so, which you can find here in the case of Leonard v. Pepsico, Inc., 88 F.Supp.2d 116 (S.D. New York 1999): Leonard v Pepsico Inc

Another fantastic opinion was written by the Pennsylvania Supreme Court.  The case dealt with the free speech implications of banning the book Tropic of Cancer on the basis that it is obscene.  The Court ruled that banning the book violated the right to free speech as guaranteed by the First Amendment of the U.S. Constitution, but not before Justice John Musmanno entered one of the most memorable dissents ever written, in the case of Commonwealth v. Robin, 421 Pa. 70 (1966).  You can find it here: Com v Robin

Sometimes the attorneys in a case are so incompetent that a Court feels the need to take note of that while making its decision, perhaps because the Court is bitter about doing the legal leg work it feels the attorneys should have done in the first place or wasting its time with a very poorly developed case.  In the case of Bradshaw v. Unity Marine Corporation, 147 F.Supp.2d 668 (S.D. Texas 2001), the Court hilariously castigates the attorneys for both sides for their inadequate legal work.  You can find it here: Bradshaw v Unity Marine Corp Inc

Another great case involved a real estate matter where a purchaser wanted to rescind an agreement of sale based on suspicion that the house being purchased is haunted.  This is the case of Stambovsky v. Ackley, 169 A.D.2d 254 (1991) and can be found here: Stambovsky v Ackley

Of course, lots of other websites have their own “best ofs” which you may enjoy.  Check them out here:

I hope you enjoy these as much as I do!


You’re Entitled to What?

Check out Faye Cohen’s blog post “You’re Entitled to What?” on her blog Toughlawyerlady here.

Legal Bigamy


The changes, objections, and litigation regarding the redefinition of marriage in the United States have created potential legal and procedural peculiarities that may pose some interesting challenges for attorneys and clients in the near future.


I have written on the subject of marriage, its definition, its changes, and legal procedural issues related to it, before and you can read those pieces here and here. I have also shared my personal thoughts on these issues which you can read here and here.


Now, before you read any further, please note that this post is not going to be my, perhaps expected (and, probably for some of you, annoying, unwanted, and tiresome), complaint and lament on the changes to the definition of marriage and attempt to raise arguments against it, especially now that Pennsylvania has ostensibly legalized same-sex marriage. This post will not focus on that; instead, I am just pointing out interesting legal issues which may arise due to them. The split between the states on the legalization of same-sex marriage, coupled with the perpetual flux in sexual orientations, is ripe for new twists to legal and procedural confusion.


Legal bigamy, as described below, is potentially one of the unintended consequences of the division between the states on the issue of the definition of marriage. Now, I am not referring to the legalization of bi/poly-gamy, which will inevitably happen now that same-sex marriage is sweeping the nation. As marriage has now been redefined and reduced to require merely a single qualification for legitimacy, blessing, and existence, namely having “consenting adults”, I see no logical justification why bi/poly-gamy ought not be legalized (or incestual marriage either for that matter) as all of these can include consenting adults. Indeed, at least there is precedent within human history for bi/poly-gamy, which cannot be said for same-sex marriage, which has absolutely no precedent anywhere at any time ever in human history. Instead, legal bigamy, as referred to in this post, deals with the legal loopholes currently available which will potentially cause tangled litigation in the near future.


In my previous articles (linked above), I have noted that the legitimacy of marriage licenses have been placed into doubt due to the qualifications of the celebrant at weddings as well as their being issued to same-sex couples while same-sex marriage still illegal. I would note that the marriage licenses issued to same-sex couples while same-sex marriage was still illegal (as written about here) remain legally in doubt. Of course, those couples could now simply secure a legal marriage license, but, if these couples divorce (or need to identify their wedding date for some other legal issue), it is unlikely they could use their first marriage license (the one issued while same-sex marriage was still illegal) as that license had no legal effect at its issuance. This is consistent with the fact that, although the Court struck down Pennsylvania’s definition of marriage (despite it being consistent with its definition in human civilization for time immemorial), it did not indicate that its ruling had retroactive effect on previously issued marriage licenses. Therefore, for example, if the same-sex couple who received a previously issued marriage license divorces, the property generated (or lost) between securing said marriage license and a new, and definitively legal, one (as suggested above), may not be on the table for distribution as marital property/debt. Same-sex couples who received the previously issued marriage licenses may seek a declaratory judgment from the Court to confirm their legitimacy, but such a remedy is not guaranteed.


Pennsylvania is now the 19th state to legalize same-sex marriage, while the remaining 31 have retained the historic definition of marriage, not to mention the fact that many now view sexual orientation as unprecedentedly fluid. This can, and likely will, lead to a conflict of laws between states. Here is the scenario: a man marries another man in a state which recognizes same-sex marriage. This same man travels to a state which only recognizes standard/normative marriage and establishes this new state as his legal domicile. As this new state does not recognize same-sex marriage, this man, in the perspective of this new state, is not married. In the new state, this man enters into a relationship with a woman and marries her in the new state and remains domiciled there. As a result, this man has two valid marriage licenses, which makes him a legal bigamist. The man he is married to may not now be eligible for any of the benefits in the new state stemming from his same-sex marriage (e.g.: estate planning, health care, various benefits, pensions/retirement, &c.), not to mention the fact that the filing of taxes will be complicated. The man he is married to cannot seek a divorce in the new state as his marriage is not recognized there. A state which does not recognize same-sex marriage (for the most part) cannot, by definition, divorce a marriage which does not legally exist there.


As states continue to redefine marriage, and marriage and sexuality continue to evolve and fluctuate, strange legal and procedural situations can and will arise, such as the ones above, which will pose challenges to both the individuals in marriage as well as attorneys hired to help them through them and their potential divorces.

Get ‘Em Out By Friday

Back in the early 1970’s, when the band Genesis, a progressive/art rock band at the time, still had musical credibility, they released one of their more theatrical songs called “Get ‘Em Out By Friday” on their classic album Foxtrot. It is one of my favorite albums, and every time I hear the song, with many of the lyrics being dialogue between landlord and tenants, it quickly brings to mind my own landlord-tenant cases. In the song, despite the desperate pleas of the pathetic tenants to stay – even offering to pay double the rent – Peter Gabriel, playing the role of the landlord, bellows “Get ‘em out by Friday!”

Many of my tenant-clients are struck by what they think is an inherent injustice in landlord/tenant law in 2 ways. First, tenant-clients obviously view their possession of a rented space with a certain amount of ownership interest. Even if they don’t own their place, it is still their home. Further, they also believe that being a “good tenant” (i.e.: remaining current on rent and taking care of the property) should be rewarded with a certain amount of loyalty to them from the landlord. Unfortunately for tenants, neither of these is the case. Landlords have no obligation to reward and/or have loyalty for and/or give allowances to tenants who are so-called “good tenants.” As long as the terms of the lease are met, a landlord can request a tenant to vacate at any time at his own discretion. Additionally, regardless of whether the tenant pays rent timely and consistently, if the lease is a month-to-month lease, the landlord can request the tenant to vacate the premises within 30 days at the landlord’s discretion, or even less if the lease so permits.

Second, there are times where a landlord can be terrible, whether that means he is slow to maintain the property, has license and inspections violations, or is generally non-responsive. Unfortunately for tenants, however, if the outstanding maintenance (and/or other) issues are cleared up and/or not raised by the tenant in court, the landlord again can request the tenant to vacate the property at any time (presuming he is in compliance with the terms of the lease). Indeed, many tenants believe an eviction action against them is often a form of retaliation for, say, reporting the landlord to Philadelphia Licenses and Inspections. They may be right, but unfortunately, contrary to popular belief, a tenant of a less-than-good landlord does not acquire additional rights, defenses, and/or some sort of immunity from eviction. As long as there is compliance with the lease and the law, a landlord can pursue the eviction of a tenant at any time even when the landlord’s performance has historically been rather poor.

When counseling tenant-clients, it is important to impress upon them that landlords can pursue them at any time – within the bounds of the lease – regardless of how good of a tenant they are and how poor of a landlord they have. It is important to advise tenants to always be prepared for a landlord to request them to vacate the premises. More importantly, it is important to advise tenants that while they may win the initial battles against landlords for various maintenance and/or licenses and inspections issues, as soon as they are resolved, they should be prepared for an eviction action against them that will likely be successful. So, despite being a good tenant or being subjected to a bad landlord, at some point a landlord can – and likely will – loudly and successfully bellow “get ‘em out by Friday!”

Originally published in The Legal Intelligencer Blog on November 21, 2012 and can be found here.

Judges are People Too (unfortunately?)

People come to court rightfully expecting an unbiased judge who will review their cases thoroughly and logically using established, known, and predicable laws and legal principles.  Unfortunately, judges are just as human as the rest of us and, aside from human error, what often happens is that people encounter judges who, right before arriving in court, got into a fight with their spouse, or got into a traffic jam, or were up all night with a baby, or spilled coffee on their pants before robing, or heard a particularly bad/exacerbating/annoying/&c case right before one’s own, or what have you.  Just as frequently, people encounter judges who had a great breakfast before taking the bench, or received a nice awaited call from their son or daughter, or hit all of the lights on the way to court, or had a great cup of coffee, or had good night of sleep is now feeling refreshed, and what have you, right before taking the bench.  Similarly, some judges are nice, easy going, and understanding while others are short tempered, crotchety, or impatient.  Who knows?  Being just as human as anyone else, judges, though generally unintentionally, bring their lives, experiences, moods, preferences, and feelings to the bench along with their law books and training.  Although precautions are taken, ultimately there is no way around the fact that the judge making decisions in a particular case is just as human as the parties and lawyers in front of him.

One of the cases I was handling recently saw the variables a judge can bring first hand.  I represented a party to a finalized divorce who was owed alimony (and other monies).  The other ex-spouse (“ex-spouse”) was to pay my client a certain sum of money each month over given period of time in order to repay my client for sums taken and kept during the marriage.  The payments just described were part of a contract (i.e.: a Property Settlement Agreement) and enshrined into law as a Court Order.  No one disputed the legitimacy of the contract or Order.

As it turns out, the ex-spouse did not make any of the payments owed.  My client, being understanding and not wishing to litigate, tried to work with his ex-spouse on the payments, especially as the ex-spouse’s income declined for a few months (though it was restored eventually).  Frustrated that nothing was paid, my client, using me as his attorney, filed a petition for enforcement of the contract.

A hearing was held on the above-mentioned petition.  The judge at the hearing found that the ex-spouse made none of the payments required under the contract.  I thought this meant victory for me and my client.  Instead, the judge inquired into the ex-spouse’s “ability to pay” on the contract.  I argued that this was irrelevant; a contract is a contract and my client is owed funds from the ex-spouse, especially as they were in lieu of a formal marital property division.  The judge was unpersuaded and scheduled a follow up hearing for the ex-spouse to present complete records regarding her income and expenses.

The above-mentioned follow up hearing was before a different judge.  It did not appear that the new judge was aware of why the case was rescheduled and began the hearing asking me to make argument on behalf of my client’s underlying Petition.  I did so and my argument was quickly followed up with argument from opposing counsel on the ex-spouse’s ability to pay and an attempt to present the records requested by the first judge.  The new judge was befuddled and wondered why ability to pay was even being discussed.  I chimed in, agreeing of course, arguing that the language and obligations in the contract is/are clear and that the ex-spouse is obliged to fulfill them by remitting to my client what was owed.  The new judge asked the ex-spouse if not having the “ability to pay” shielded her from having to pay her rent/mortgage, utility bills, credit cards, or any other contract.  Of course, the ex-spouse responded in the negative, which led the judge to rhetorically wonder why an ability to pay (or lack thereof) was relevant for the contract at issue in the hearing (implying that it was not relevant).

Ultimately my client won the case but I did not write this piece to toot my own horn and show off my trial advocacy skills.  Indeed, I thought the case was pretty straight forward.  I wrote this piece to demonstrate that the very same case, with the very same facts, and the very same applicable law, was presented to two different judges.  One judge was sympathetic to the ex-spouse and inquired into “ability to pay” and was seeking a way to soften or reduce the ex-spouse’s obligation to my client under the contract.  The second judge thought the case was rather black and white and as there was no disagreement on the legitimacy of the contract and the obligations contained therein, then the ex-spouse was obliged to fulfill her end of the contract at pain of sanctions and Court enforcement of the contract.

I have no idea why the two judges were so different in their approach.  What I can say is that they reflect the different approaches to cases and facts and laws that different people may, can, and often do have.  Unfortunately, no matter how “good” or “righteous” of a case one may have, or how good or skilled a lawyer one may hire, the judge one faces, and how that judge approaches the case, may, and often does, determine whether one’s case is successful.    This is important to keep in mind when thinking about litigating.  One of the insights attorneys often have is knowing the tendencies of judges based on their experience with judges in prior trials, hearings, and/or cases.  This insight is invaluable when making litigation, tactical, and settlement decisions and ought to be heeded.

Our legal system is facilitated, controlled, and designed by people and, for better or for worse, our legal system is also subject to the benefit and foibles of those same people.  It is best to keep that in mind when litigating.

Philanthropists of Time

Check out Faye Cohen’s blog post “Philanthropists of Time” on her blog Toughlawyerlady here.

5/14 Update on Roger Dean v. James Cameron

[Author’s Note: since this post this matter has come to a conclusion about which you can read here.]

As most of my readers know, I am a huge Yes (the band) fan – you can find out more about Yes here – and, therefore, by definition a fan of Roger Dean (the painter/artist) as he designed their famous logo (see here for examples), painted most of their album covers (see here and here for examples), and designed their otherworldly live stage sets (see here for examples).  You can learn more about Roger Dean here.

If you have been watching the news, or following this blog, there is a U.S. Federal Court case between Roger Dean and filmmaker James Cameron (famous for Avatar, Titanic, Aliens, and The Terminator).  Roger Dean sued James Cameron claiming Cameron swiped Dean’s images and concepts for his record breaking blockbuster film Avatar.  You can find my previous posts on this subject here and here.  Those posts basically sum up the dispute in the case and show you some examples of Dean’s art compared to images from Avatar.

The case between Dean and Cameron began on June 27, 2013 in the United States District Court in the Southern District of New York, Case No.: 1:13-cv-04479-JMF by the filing of a Complaint.  Roger Dean amended the Complaint on Septemnber 30, 2013.  Dean sued the following people: James Cameron, Twentieth Century Fox Film Corporation, Dune Entertainment III, LLC, Twentieth Century Fox Home Entertainment, Lightstorm Entertainment, and Ingenious Film Partners 2, LLP.  On September 11, 2013, Dune Entertainment III LLC and Ingenious Film Partners 2 LLP were terminated from the case.  On November 14, 2013, the remaining Defendants filed a Motion to Dismiss Dean’s Amended Complaint and, in response to the Motion, responses and counter responses have been filed.  The Motion to Dismiss remains outstanding as of this writing (May 8, 2014).

If you are interested in viewing the docket and reading the various pleadings and motions filed so far, you can view them below; I did not include them all (there are many entries on the docket).  I only included the salient ones that have direct bearing on the claims made in the case.

dean v cameron – docket

dean v cameron – complaint

dean v cameron – voluntary dismissal 1

dean v cameron – voluntary dismissal 2

dean v cameron – amended complaint

dean v cameron – order to amend again

dean v cameron – motion to dismiss

dean v cameron – memorandum in support of motion to dismiss

dean v cameron – dean’s response to motion to dismiss

dean v cameron – defendant’s reply

I will  keep you updated as information becomes available.

Follow this blog or follow me on Twitter here.

On May 12, 2014 I discovered that this post was referred to by Henry Potts on his Yes news site which can be found here.  My inclusion on Mr. Potts’ website is something of an accomplishment for my Yes fandom!  Thanks Henry!

There has been an update in this case which you can read here.

A Run on the Courts

Check out Faye Cohen’s blog post “A Run on the Courts” on her blog Toughlawyerlady here.

No I.D.? No Problem – Judge Blocks Pennsylvania Voter I.D. Law

Here is an article by Theodore Y. Choi, Esquire who is a former associate at my firm.  This article was originally published in Upon Further Review on October 24, 2012, and can be seen here.

Warrentless Car Searches Now the Law in PA

The Pennsylvania Supreme Court (by vote of 4 to 2) has just issued a ruling indicating that police officers no longer need a search warrant in order to search someone’s vehicle.  Prior to this ruling a police officer could only search the contents of a car if he received a search warrant signed by a judge, did so with the consent of the driver, or personally saw contraband (or the like) in plain view.  Under this new ruling, the police officer merely needs probable cause to search the vehicle.  Many commentators believe that this ruling flies in the face every American’s 4th Amendment (to the U.S. Constitution) protection against search and seizures, not to mention similar protections laid out in Pennsylvania’s Constitution, however the Pennsylvania Supreme Court states that its ruling is consistent with federal law.  Apparently refusing to allow an officer to conduct a search is not, itself, probable cause, though in practice who knows how that will play out.

Obviously, this case is ripe for an appeal to the United States Supreme Court.

Some good articles on this subject can be found here, here, here, and here.

What do you think?  Have we lost freedoms with this ruling or is this merely making Pennsylvania consistent with our actual freedoms and protections as guaranteed in the Pennsylvania and United States Constitutions?


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