Expungement of Juvenile Records

Young Man Seeks Expunge of Juvenile Record

A 24 year old young man who was adjudicated delinquent at the age of 17 for possession with intent to sell 185 Ecstasy pills at school was successful in challenging a judge’s refusal to expunge his juvenile record. Ecstacy is an illegal drug that acts as a stimulant and a hallucinogen. Expungement of juvenile records, if granted, is thorough. Pennsylvania law specifically provides that when records are expunged law enforcement authorities are obliged “to remove information so that there is no trace or indication that such information existed.”

As a juvenile, the young man admitted the offenses, was adjudicated a delinquent, spent three months in a treatment facility and was discharged from supervision after six months of supervised probation. Five years after he completed his probation, he petitioned the county court for an expungement of his record.

The stated purpose of Pennsylvania’s juvenile laws is to provide juveniles with rehabilitation and an opportunity to change their behavior. As a result, juveniles are not charged with “crimes,” instead they are charged with “delinquent acts.” They are not “convicted,” instead they are “adjudicated delinquent.”

Pennsylvania Law of Expungement for Juveniles

Pennsylvania law provides that county judges may order the expungement and destruction of records of a juvenile’s adjudication if the charges are dismissed or if six months has passed after treatment has concluded in minor cases. In more serious cases, juveniles must wait five years from the end of their treatment to seek expungement and also must show that they have not been charged with any additional offenses. In deciding whether to expunge records in serious cases, the county judge must consider the juvenile’s original offense, the juvenile’s age, history of employment, criminal activity and drug or alcohol problems and any adverse consequences that the individual may suffer if the records are not expunged. The judge must also consider whether retention of the records is required for purposes of protection of the public safety.

The young man who sought expungement for his juvenile records of possession of Ecstasy finished high school following his probation, held a steady job in the construction industry, was attending community college and had no further encounters with law enforcement following his juvenile adjudication. Nevertheless, prosecutors objected to the expungement, arguing that the juvenile was 17 when he was arrested and was not young or unsophisticated. The prosecutors also noted that the juvenile was able to finish high school, get into college and get a job without any problems caused by his juvenile record. The prosecutors felt that the public was better protected by the court having a record of the juvenile adjudication. The county judge denied expungement, relying in part on provisions of Pennsylvania drug laws that consider drug sales not appropriate for expungement.

On appeal, the juvenile prevailed and got his juvenile record expunged. The appellate court found that the expungement laws for juveniles are very different from those for adults. Noting that the juvenile expungement law provides “an opportunity for children who crash upon the reef of criminal behavior to leave behind the damaging effect of such collision,” the appellate court reversed the county judge’s decision and ordered the juvenile records expunged.

Cite

In Re A.B., 987 A.2d 769 (Pa. Super. 2009)(en banc).

Injured Pedestrian Can Sue Utility Company

Injured Pedestrian Allowed to Sue PECO

A woman struck by a car as she walked to her bus stop was given the right to take her claims against the street light utility company to trial.

The trial judge made initial findings that the intersection where the woman was struck by the car was lit by streetlights owned by the utility company. The parties did not dispute that the lights were old, installed when the roadway was two lanes. The road had doubled in size and the street light was not modernized for over 30 years. The light was described as “antiquated” by the woman, who claimed it did not light the roadway fully. The utility company countered that its obligation to maintain the light was met when it inspected it regularly and replaced the bulbs as needed. The trial judge agreed and dismissed the woman’s claims against the utility company.

On appeal, the woman claimed that the utility company took on the responsibility to light the roadway, and thus was responsible to do it properly. Arguing that maintenance of the lights required more than “changing light bulbs every four years,” she sought the right to take her claims to a jury.

The appeal court agreed, noting that a jury may find that the utility company’s duty extended beyond merely providing the electricity and changing the bulbs. Because the question of whether a party used “reasonable care” is a question for the jury, the appeal court remanded the case for trial against the utility company.

Injured Worker Wins Workers’ Compensation Benefits Despite Uninsured Employer

Employee Wins Benefits Despite Uninsured Employer

A laborer seriously injured at a construction site won Worker’s Compensation benefits despite the fact that his employer was uninsured.

The laborer was tearing off a roof and told the employer that the beams were dry-rotted and could not support him. The employer disagreed and told the laborer to slide plywood over the beams and stand on the plywood; he did, and he fell from the roof onto a concrete slab. He suffered a skull fracture, orbital fracture and mild brain injuries. Placed in a drug induced coma, he was hospitalized for over a week and later treated by neurosurgeons and brain trauma specialists.

Pennsylvania Uninsured Employers Guaranty Fund

The Pennsylvania Uninsured Employers Guaranty Fund (the Fund) stands in the shoes of uninsured employers, managing claims and litigating against workers when necessary. The Fund challenged the laborer’s right to benefits, focusing largely on the expectation that he should return to work. The laborer’s brain trauma expert testified at hearing that the laborer had pressure headaches, vision blurring, fatigue, short term memory problems and mild cognitive deficits. He characterized the injury as a mild traumatic brain injury that left the laborer with significant cognitive problems and vision problems. He noted that the laborer discontinued treatment but had not recovered.

The Fund engaged a physician to conduct an independent medical exam that was performed after the laborer’s other medical treatment had essentially ended. Because their physician concluded that the laborer could return to work, and because the laborer’s health care providers did not re-examine him after the independent exam, the Fund claimed that their physician’s testimony was superior, in part because it was more recent in time.

On appeal, the Commonwealth Court disagreed, first noting that the hearing officer found the laborer’s expert more credible. Next the Court found that the most recent examination in Worker’s Compensation cases is not necessarily or always the more reliable. Worker’s seeking compensation for injuries must prove the nature and duration of their disabilities. Once they have met that burden to the satisfaction of the hearing officer, the fact that a more recent exam results in a different opinion is not binding on a hearing officer.

Keep Up With Medical Care

Workers should keep up with their medical care in order to present the best case at hearing. But the most recent medical exam does not carry any superior weight at hearing simply by reason of its date and time.

 

Tire Hauler Fined

Tire Hauler Fined For Costs of Illegal Dump

A Pennsylvania tire hauler was held responsible for part of the costs of cleanup of an illegal dump as a result of Pennsylvania environmental regulations.

The hauler paid a rural family business to accept his dumping of waste tires. Over a period of three years, the hauler dumped 55 truckloads of tires on the family’s dump site, totaling over 330 tons of tires. The site became the largest illegal tire dump site in Pennsylvania, containing over 4 million waste tires before it was shut down by the Department of Environmental Protection (DEP). The family did not have permits for the site.

After extensive litigation and negotiations with the family to advance the removal of the millions of tires, and after some were removed, DEP began its own clean up of the site. DEP requested the haulers who dumped the tires to remove the amount of tires they had dumped on the site, and many did. Some of the haulers simply paid DEP’s costs of removal. Several haulers resisted taking any responsibility and one went to trial.

The hauler who went to trial maintained that he never knew the dump was illegal and that the family told him they processed tires into paving material. He admitted that he never asked to see a permit and never inquired about the tire processing the family claimed they did. He admitted he never inspected their business operations at any time. He was found responsible for over $23,000 in costs incurred by the DEP to remove his 330 tons of waste tires from the site because the Pennsylvania Solid Waste Management Act (SWMA) makes individuals or companies who dump solid waste responsible if the site does not have a permit. Whether solid waste is transported to a dump or a processing facility does not matter; haulers must be sure that the site where they dump waste has a legal permit to accept that waste.

When Children Sue

When Children Sue Due to Personal Injuries

Children who suffer personal injuries have the right to sue, but only can do so through a guardian. Usually a child’s parent serves as the guardian. In a recent Pennsylvania case, a trial judge substituted a lawyer as guardian ad litem for an injured child, but on appeal the child’s mother regained the right to manage the lawsuit. (See Reher v. Youst, 91 A.3d 183 (Pa. Super. 2014).

The Case

The child was a 15 year old girl who suffered from seizure disorder, global developmental delay and hearing problems. She was fed by a feeding tube and relied on daily nursing assistance for her routine care. One of the assigned nurses preferred to care for the child at her own home rather than at the child’s home, but that arrangement was not permitted by the agency. The nurse and the mother secretly agreed that the nurse would care for the child at her own home; only on the days the agency reviewed or monitored the nurse, would she and the child stay at the mother’s home. While at the nurse’s home, the child was extensively bitten by the nurse’s dog, resulting in serious facial and eye injuries. The eye injuries required a series of surgeries and it was expected that the child would require future surgeries as well.

Guardian ad Litem

After a period of delay, but before the time for filing suit expired, the mother sued the nurse and the agency for negligence and negligent supervision. The mother hired an attorney who filed the lawsuit and also entered into serious settlement negotiations. The agency and the nurse’s homeowner’s insurance company made substantial offers, but as the case proceeded to trial, confusion arose about the amount and detail of the offers. Just before trial, the trial judge appointed an attorney to take over the mother’s role and act as guardian ad litem for the child. The judge was critical of the mother’s failure to accept substantial settlement offers and concluded that she was not sufficiently focused on the child’s interest, but was instead motivated to get a larger offer or award for her own financial gain.

The mother immediately appealed and on appeal she won the right to act as sole guardian in the case. The Pennsylvania Superior Court held that a trial court does have the authority to substitute an attorney for a parent guardian in a personal injury case involving a child. But in doing so, the court must give valid reasons before setting aside the parent. Parents have a fundamental right in Pennsylvania law to make decisions regarding the care and control of their children. Largely due to the fact that the parties all disputed the history of the settlement offers and counter-offers, the appeals court found that the trial judge did not have enough reliable evidence that the mother was not acting in her daughter’s best interests.

Parents are entitled to bring lawsuits for their children, and are permitted to hire attorneys to do so. Trial judges may substitute an attorney as guardian ad litem for a child if sound reasons support the conclusion that the parent is not managing the litigation adequately.

Public Employees Forfeit Pensions

Public Employees Forfeit Pensions Due to Misconduct

Two recent Pennsylvania cases illustrate the enormous consequences misconduct or criminal convictions have on public employees’ retirement benefits. Both employees lost their entire pensions, based on different Pennsylvania laws; one was a judge, the other a teacher.

Judge

The office of magisterial district judge, formerly justice of the peace, is an elected judicial office. Magisterial district judges have varied duties, including setting initial bail in criminal cases, hearing criminal preliminary hearings, issuing orders of protection and handling minor civil cases. Magisterial district judges can be removed from office as a sanction for misconduct. The Pennsylvania Court of Judicial Discipline hears cases of judicial misconduct brought against judges of all levels of office.

A magisterial district judge brought before the Court of Judicial Discipline on charges of “pervasive and extreme” misbehavior toward his staff, some of which had sexual connotations, and much of which included his routinely using “crude, coarse, vulgar, offensive and improper language,” was removed from office after trial following the Court’s finding that he had “brought his judicial office into disrepute.” Some of the charges of misconduct against him were dismissed by the Court. First elected in the late 1980’s, the judge was re-elected several times and had a state pension.

After his removal by the Court, the state pension service notified the removed judge that his pension was forfeit due to his removal from office. The judge appealed to the State Employees Retirement Board, claiming that some misconduct charges against him had been dismissed, that he was removed on grounds that he brought his office into disrepute rather than on grounds of misconduct, and that he was not actually removed from several terms of office he previously served in his cycle of re-elections. Despite the fact that the judicial removal proceedings had concluded against him, the judge characterized his behavior toward his staff as “jovial repartee.” The retirement Board upheld the forfeiture, noting that both the Pennsylvania Constitution and the Pennsylvania statutes which regulate judges provide that judges forfeit their pensions if removed from their office. The Board noted that all elected officials renew their pension contracts upon re-election, and that the terms of the pension contract “place at risk” all previous service and previous pension earnings. The Board also noted that the judge was aware of the contents of the Judicial Code and the Pennsylvania Constitution.

Teacher

In the case involving the teacher, he lost his pension after pleading guilty to corruption of a minor and indecent assault. Pennsylvania’s Public Employee Pension Forfeiture Act (PEPFA) provides for the loss of pension when a public official or employee is convicted of crimes involving the job or office “when public employment places him in a position to commit the crime.” The crimes involved are enumerated in the PEPFA and include crimes against students, and crimes involving theft, forgery, records tampering, bribery, false swearing and obstruction of law. Public officials and employees who can lose their pensions under the PEPFA include both state and local officials and employees.

In the case involving the teacher, he was already collecting his monthly pension payments at the time he entered the guilty plea, and was not aware that his conviction would trigger a pension forfeiture. When he received notice of the forfeiture, he tried to withdraw his guilty plea, but the presiding judge found that pension forfeiture was not a valid reason to withdraw a fully counseled guilty plea.

Strict Laws Result in Pension Forfeiture

Judges and all public officials and employees are subject to these strict laws that create the potential for pension forfeiture. Given the objections raised by the judge and teacher described above, it appears that some individuals with public pensions may not be fully aware of the grave risks of forfeiture they face.