Legal Writing for Legal Reading!

Archive for the month “October, 2015”


Check out Faye Cohen’s post to her blog Toughlawyerlady!


There’s nothing like a prolonged power blackout to make us reorder our priorities. I was one of 800,000 people and businesses who lost their power in suburban Philadelphia back in February due to an ice storm. Luckily, my service was restored in a couple of days, but others lost theirs for far longer. Things that seemed significant before the power outage faded away in importance without heat, lights, hot water, telephone service, access to the Internet, and lack of power to charge our cellphones. We were also not able to travel due to downed power lines and trees. The roads looked like a war zone with blockages, no working streetlights at night, and work trucks lining the roads. Talk revolved around generators and whether hotel rooms were available to rent.

Not only does the lack of basic necessities make one forget our daily grind, our daily aggravations, and the petty…

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Casting your short film

Here is the latest post by Angela and Daz Croucher to their blog A.D. Croucher! They are up-and-coming young adult authors. Check them out!

A.D. Croucher

Casting is one of the trickier aspects of making your short film, but it’s also one of the most rewarding. Watching a great actor bring your words to life in a way that’s better than you could have imagined is a genuinely thrilling experience.

Even something as simple as a coffee shop scene comes to life with great actors Even something as simple as a coffee shop scene comes to life with great actors

So… how do you find actors?

You can check out local theater companies or groups, general acting classes, or try to reach out to college students on film and theater courses. Finding groups or classes is a matter of googling in your area, but you can also check the noticeboards in local coffee shops, or go to some theaters near you and ask if they know of any acting classes nearby. For schools, you can reach out to the relevant professor of acting or theater courses. In all cases, speak to…

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Tactical Retreat: Don’t Hate the Playa

My friend and co-worker Brian M. Lambert has founded an online sketch comedy project called Tactical Retreat which you can find here on Facebook and here on Youtube.

As Tactical Retreat releases new videos, I will post them here.  So far, I have found them rather funny and clever and they seem to get better with each release.

Here are the links to Tactical Retreat‘s previously released sketches:

Tactical Retreat‘s latest sketch is entitled “Don’t Hate the Playa” can be viewed below.

Dzhokhar Tsarnaev and the death penalty

This is from thinkchristian.reframemedia.com/ which you can find here:

“As a family member of a murder victim and long-time opponent of the death penalty, I’m watching with great interest the sentencing phase of Boston bomber Dzhokhar Tsarnaev’s trial, which will determine whether he receives the death penalty.

One could argue that Tsarnaev’s case is not like others. There is no question that he committed the crime, a horrible act of terrorism. The toll of the dead and wounded is staggering. And, as evidenced by the photograph prosecutors shared of Tsarnaev giving an obscene gesture to a security camera while in custody, he has been defiant, not repentant.

It is tempting to say that Tsarnaev is sub-human and unredeemable. Yet I would urge Christians to reject that idea. Despite his horrible acts, Tsarnaev was created in the image of God and is loved by God. Who are we to say that there is no possibility for forgiveness, reconciliation and redemption in the case of any criminal? Only God can say this. But the death penalty cuts off the possibility of these outcomes, which Christ always wants us to work toward.

You can learn more about this issue here.

Employment Discrimination Suit Dismissed On Ministerial Exception Grounds

This is from religionclause.blogspot.com which you can find here:

“In Preece v. The Covenant Presbyterian Church, (D NE, April 22, 2015), a Nebraska federal district court held that the ministerial exception doctrine requires dismissal of employment discrimination claims by a church’s former Director of Youth Ministry.  Richard Preece claimed that his employment was terminated in violation of Title VII and the Nebraska Fair Employment Practices Act because he obtained a divorce and in retaliation for complaining about sexual harassment by a pastor who was his direct supervisor.  The court held:

The plaintiff’s job duties reflected a role in him conveying the defendant’s message and carrying out its mission….. In this case, the defendant’s treatment of the plaintiff in relation to his sexual harassment allegation clearly implicates an internal church decision and management, rather than the outward physical acts of one pastor. Accordingly… this court finds the plaintiff’s sexual harassment claim is factually entwined and related to the plaintiff’s other claims, which the court may not review without excessive government entanglement with religion in violation of the First Amendment.”

You can learn more about this issue here.


Statute of Limitations When a Defendant Dies

One the most basic legal principles is that statutes of limitations establish the time frames in which a civil suit can be brought in a given case and any attempt to bring suit outside of that time frame will inevitably result in the case being dismissed. For example, the statute of limitations for a personal injury matter is two years from the date the injury is, or should be, discovered (see: 42 Pa.C.S.A. §5524(1), (2), and (3)) and, for the most part, bringing a personal injury matter beyond that two year deadline will be cause to dismiss the claim.

One of the possible exceptions to the application of statutes of limitations is if the defendant dies during the pendency of the limitations period. As with any complaint, it is the duty of a plaintiff “to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and then institute suit within the prescribed period,” and that includes determining whether the defendant is living or dead at the time of suit. Lange v. Burd, 800 A2d 336 (Pa.Super. 2002).

Generally speaking, a dead person cannot be sued or be a party to an action Montanya v. McGonegal, 757 A.2d 947 (Pa.Super.2000); Lange v. Burd, 800 A2d 336 (Pa.Super. 2002). However, 20 Pa.C.S.A. §3383 carves out an exception to this general rule permitting a dead person to be sued within one year after his death. §3383 goes on to say that its terms ought not be construed to shorten a two year statute of limitations period. Therefore, hypothetically speaking based on the above, if someone died on the day a plaintiff discovered his injury, then the plaintiff would have two years to bring suit against the deceased. At the other end of the spectrum, if someone died on the last day of the two year statute of limitations, then the plaintiff would have an additional year to bring suit against that defendant (for a total of three years). Finally, if someone died during the statutory two year period, the last date a plaintiff could bring suit against the deceased could be either the last day of the two year statutory period or the last day of the one year period stated in §3383 above, whichever came later. Longo v. Longo v. Estep, 289 Pa.Super. 19 (1981); Rylee et ux. v. Nicoll’s Administrator, 74 Pa.D.&C. 269 (1950); Telford Coal Company v. Prothero et al., 24 Pa.D.&.C. 183 (1935).

After considering the above, the obvious question arises as to whether one can substitute another party (e.g.: an estate) for the deceased defendant in order to pursue a plaintiff’s claims. According to applicable case law, one may bring suit against a decedent’s estate in order to pursue claims that would have otherwise been against the decedent himself if he were alive. If a complaint is filed against a deceased person, it must be withdrawn and refiled against his estate instead. Montanya v. McGonegal, 757 A.2d 947 (Pa.Super.2000). The refiled complaint against the estate is subject to the same applicable statutes of limitations stated above for the decedent. See Montanya. The filing of a complaint against the deceased, instead of his estate, does not serve to toll the running of statutes of limitations described above in order to permit an action against the decedent’s estate after the expiration of statutes of limitations described above. See Lange.

The only way around the above statutes of limitations is to argue that there was some sort of fraud or intentional concealment of the death of the defendant which served to unfairly prejudice plaintiff in his attempt to bring suit. See Lange. The plaintiff does not have to prove that fraud or concealment was intentional, just simply that the opposing party’s conduct served to conceal the death of the defendant. See Montanya. When arguing that the opposing party committed fraud and/or concealed the death of the defendant, it should be noted that silence on the part of the opposing party is insufficient to constitute fraud or concealment. As a result, an insurance company or party failing to volunteer the information that the defendant is dead at any time – or even accepting service for the deceased at his residence – during the life of the claim and/or suit will not constitute fraud or concealment. See Montanya. The fraud or concealment must be the result of an affirmative action; consequently a passive action (e.g.: taking no action at all) is not an affirmative action. See Montanya. Moreover, the plaintiff has the burden of proving the fraud and/or concealment with clear and convincing evidence.

Although Pennsylvania law may provide a case with a little more life after the death of a defendant, ultimately statutes of limitations will apply to kill a case even if the death of a defendant did not do it already.

Originally published on June 24, 2014 in The Legal Intelligencer Blog and can be seen here.

October 2015: “The Evangelist” Newsletter from St. John the Evangelist Anglican Church, Abington, PA

The Evangelist is the monthly newsletter of St. John the Evangelist Anglican Church in Abington, Pennsylvania.  Below is the October 2015 issue of The Evangelist which you can also read here in .pdf format.

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Making It Big In Shorts (and other books to read)

Here is the latest post by Angela and Daz Croucher to their blog A.D. Croucher! They are up-and-coming young adult authors. Check them out!

A.D. Croucher

While you’re thinking about making a short, or as you’re writing one, but definitely before you get into postproduction, it’s a good idea to get to know the world of short films. While you can find a ton of info online, there are some books out there that provide very useful looks at the short film industry and ecosystem.

Two we’d particularly recommend are —

Making It Big In Shorts, by Kim Adelman (2009):

Making It Big In Shorts, by Kim Adelman Making It Big In Shorts

And Short Films 101, by Frederick Levy (2004):

Short Films 101 Short Films 101

Some of the practical info they discuss is out of date, sure — some of the websites they mention no longer exist, and technology is already WAY ahead of when the books were written. Like, so far ahead. Like Star Trek level. There are chapters on negative cutting and film processing, for example, which likely just won’t apply to you anymore, with…

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Supreme Court Denies Review In RLUIPA Land Use Case

This is from religionclause.blogspot.com which you can find here:

“The U.S. Supreme Court today denied review in Lichtfield Historic District Commission v. Chabad Lubavitch of Litchfield County, Inc., (Docket No. 14-1001, cert. denied 4/20/2015) .(Order List). In the case, the Second Circuit Court of Appeals held that the district court had applied erroneous legal standards in deciding whether a refusal to allow a Jewish group to expand a building in Lichtfield’s Historic District violates RLUIPA’s substantial burden and nondiscrimination provisions. (See prior posting.) AP reports on the Supreme Court’s denial of review. ”

You can learn more about this issue here.

Book Review: After Virtue, by Alasdair MacIntyre

After Virtue (see more about it here), is a philosophy of ethics book by philosopher Alasdair MacIntyre which is, arguably, one of the most important works in the genre in the twentieth century (you can read a good summary of it here).

I must admit that I am not a philosopher, and have only recently (and, I am ashamed to say, very belatedly), really delved into the subject.  So, as a result, some parts of this book were a little difficult for me to slog through. Difficult not because it is poorly written or hard to understand but, rather, because my own knowledge base is somewhat limited.  As a result, I had to read a few of the pages a few times just to ensure I knew what the argument was or to what it was referring.  Aside from that, though, the book is not written in such a way to make it inscrutable or so technically only professionals could really appreciate it.  It just takes a little work sometimes.

The primary thesis of the book is that the Enlightenment, and after that modernism and post-modernism, having jettisoned the traditional underpinning of Western Civilization (namely Christianity and, before that, Aristotelianism), and the teleological understanding of reality that goes with it, are simply philosophically incapable of providing an individual and/or society with a system of virtues (or ethics or morals) that is, or can be, anything other than something binding and convincing to the individual alone.  In other words, the Enlightenment (and post-Enlightenment) have reduced virtues, ethics, and morals to simply personal preference, without any objective basis or general applicability.  In short, a system of virtues, if it is to have any meaning and applicability, must be based upon objectivity and truth, but the Enlightenment (and post-Enlightenment) rejects objectivity and truth and, therefore, handicaps itself from any ability to develop a system of virtues.  MacIntyre reviews a variety of Enlightenment (and post-Enlightenment) thinkers who have tried to develop a system of virtues and reveals each of them fundamentally in conflict with one another despite all claiming the same intellectual heritage in the Enlightenment.  MacIntyre presents this as hard evidence that the Enlightenment and its progeny simply cannot form the basis of any workable system of virtues as it betrays any effort to do so with its rejection of truth and objectivity.

Ultimately, MacIntyre incarnates the conflict between pre and post Enlightenment as a conflict between Aristotle and Neitzsche with Aristotle representing the traditional teleological approach to virtue and Neitzsche representing the logical conclusion of Enlightenment (and post-Enlightenment) philosophy as Neitzsche acknowledges and simply embraces the fact that developing a system of true and generally applicable virtues is impossible.

This book is an impressive indictment of our twenty-first century Western culture.  Despite all of the bloviation about morality and ethics one hears through the media and the community, MacIntyre demonstrates in stark relief that in doing so they reveal that the emperor truly has no clothes.  Instead, as our post-Enlightenment culture has no consistent philosophical or intellectual way of deriving and/or identifying virtue, it has survived using the borrowed capital of the prior Christian culture that preceded it by adopting its virtues for the present culture but attempting to find a post-Enlightenment rational for them.  The obvious intellectual problem is that post-Enlightenment thought simply cannot provide an intellectual basis for Christian virtue as the disconnect between the two is too great; they are too disparate.  Western culture was able to run on the fumes of Christian virtue within an Enlightenment or post-Enlightenment worldview while thinkers attempted to synthesize the two.  This attempt at synthesis has failed, which directly led to that failure coming to a head in the 1960s and, since then, Western culture has been in the process of deconstructing itself revealing the fundamental incompatibility of pre and post Enlightenment philosophy, and has laid the seeds for the constant cultural warfare being waged in Western civilization since then.  What concerns me, and MacIntyre too it seems, is that the cultural heritage we have received since the Enlightenment is inherently incapable of replacing what came before it in terms of developing a workable system of virtues, especially in the community and public life.  As a result, the foreseeable future will be marked by constant cultural conflict until the Neitzcheian Übermensch simply, by the force of his (or its) will and strength, exerts control over our society unless, of course, a more traditional view (e.g.: Christianity or at least Aristotelianism), can reassert itself in the culture.  May God have mercy on our culture!

If one has an interest in philosophy, ethics, or even mild cultural commentary, this is a phenomenal book, which is made all the better by the fact that it is highly respected and influential within and among intellectuals of all stripes and academia.

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