Archive for the ‘Uncategorized’ Category

Spotlight Issue: Berks County emergency custody petitions

Sunday, November 19th, 2017

What do you do if you do not have a current custody order and your child’s other parent is not allowing you to see your child? In Berks County, you will need to file a custody complaint as soon as possible. The good news is that once your complaint is filed, you will be scheduled for a custody conference. The bad news is that the conference will be scheduled a couple of months in the future. Are you supposed to simply wait for the conference date to be given time with you child? NO! You are able to file an emergency custody petition in Berks County to ask a custody judge to immediately give you time with your child.

How does the emergency custody petition process work? First, you will meet with an ENM Law attorney to determine whether or not your situation requires an emergency custody petition. If the answer is “yes,” then your ENM Law attorney will file a petition asking that the custody judge grant the emergency relief that you are requesting. The other parent must be given 48 hours notice of the date and time that the petition will be presented. If your case has already been assigned to a custody judge then your petition will generally be heard by that same judge. However, if your custody judge is not available then the petition can be presented to the emergency motions judge.

At the emergency petition hearing, your ENM Law attorney will present the judge with the circumstances surrounding your request for emergency relief and argue for the best outcome. If the judge grants your request then a temporary order will be issued pending the decision at the scheduled custody conference.

A recent Berks County custody client came to Attorney McAllister for help because the custodial parent was refusing to allow our client to visit with his child. The first step Attorney McAllister took was to file a custody complaint in Reading, PA. A custody conference was scheduled as a result of that complaint, but it wasn’t to be held for a couple of months. Faced with the alternative of his client not seeing the child until the conference date, Attorney McAllister filed an emergency petition asking that the judge immediately grant his client time with the child pending the conference. Thanks to the hard work of Attorney McAllister, the custody judge granted our client significant periods of custody.

If you think that you may need an emergency custody petition filed in Reading, PA, contact our knowledgeable Berks County custody attorneys at 610-372-5128 or email us at info@enmlaw.com.

Spotlight Issue: Civil lawsuits

Wednesday, October 25th, 2017

What are your options if someone in Berks County owes you money? If you are owed money because of damages done to you or your property or because of a breach of contract (just to name a few causes of action), you have the option of filing a civil lawsuit. In this lawsuit you will file a complaint which tells the court why you are owed money how much money you are owed. The amount of money owed is particularly important because that determines where you can file your civil lawsuit in Berks County. Civil lawsuits requesting $12,000 or less can be filed in front of a Magisterial District Judge (MDJ). Claims over $12,000 must be filed in the Berks County Court of Common Pleas.

Most people know that an attorney is necessary when a lawsuit involves a sum of money above $12,000. But what about lawsuits for smaller amounts filed in front of a MDJ? Is an attorney necessary for those cases? The short answer is “no,” but the smart answer is usually “yes.”

In order to present the most persuasive case and convince the MDJ that he is owed a certain amount of money, a Plaintiff (person who files the lawsuit) is best served by having an attorney argue the case. A Plaintiff must also make sure to follow the rules when filing the complaint because failure to do so can result in dismissal of his complaint. Similarly, a Defendant may need to present evidence to contradict the Plaintiff’s case and argue to the MDJ why he should not have to pay the amount requested by the Plaintiff – these arguments are best made by someone who understands the law. Defendants are also able to counterclaim against the Plaintiff, but there is a time limit in which that complaint must be filed. Even the question of which Berks County MDJ should hear the case (this is called venue) can be a difficult one for a person who doesn’t understand the law. The stakes can be high for both parties and the Defendant can be on the hook for the court costs if the MDJ decides in favor of the Plaintiff. Hiring an attorney may save you money in the end.

Take, for example, a recent client of Attorney McAllister’s who was sued by a bank for credit collection. The bank said that he owed them $1,500 and filed a civil suit in front of a MDJ. This client could have represented himself, but he made the smart decision to hire Attorney McAllister instead. During the hearing, Attorney McAllister pointed out to the MDJ that the attorney for the bank had not presented any evidence linking his client to the debt (i.e., no signatures on documents). The MDJ was persuaded by Attorney McAllister’s argument and dismissed the civil suit. Our client walked away without having to pay anything to the bank or the court.

If you think that you have a case for a civil suit in Berks County, contact our knowledgeable Reading, PA civil attorneys before you file a complaint. If you are the defendant in a civil suit, don’t go to court alone: we can help. Contact our office at 610-372-5128 or email us info@enmlaw.com.

ENM Law News: Terorristic Threats charge dismissed at preliminary hearing

Thursday, October 19th, 2017

A client recently came to Attorney McAllister looking for help after a fight with a roommate. Our client had been charged with Terroristic Threats and his preliminary hearing was scheduled to be heard in Reading Central Court (read more about RCC here). The roommate testified that our client threatened to shoot him. The roommate admitted that he had never seen our client with a gun. While not denying the statement, Attorney McAllister argued to the magisterial district judge that it didn’t constitute a Terroristic Threat. Confused by how that can be true? Luckily, Attorney McAllister isn’t!

Pennsylvania law requires that in order for a threat to constitute a Terroristic Threat, it must be made with the intent to terrorize, or with reckless disregard that it will cause terror. Pennsylvania courts have decided that this definition does not include statements made with transitory anger (i.e., speaker didn’t intend to carry out the threat and didn’t have reason to believe that the statement would make you believe that he was going to).

In our case, Attorney McAllister argued that because our client didn’t have a gun and his roommate knew that he didn’t have a gun, there was never an intent to terrorize with the statement and no reason for the roommate to believe that he was going to follow through on the threat. The magisterial district judge dismissed the Terroristic Threats charge against our client and he was no longer facing 5 years incarceration and a $10,000 fine. If you’ve been charged with a Terroristic Threats case in Berks County, contact our knowledgeable criminal defense attorneys at 610-372-5128 or info@enmlaw.com.

ENM Law News: 2008 ICC charge dismissed for lack of service

Thursday, October 19th, 2017

What happens when there is an alleged violation of a civil Protection from Abuse order (PFA)? The alleged violation results in an Indirect Criminal Contempt charge (ICC). This is a criminal charge which can result in a jail sentence of up to 6 months and a $1,000 fine.

A client recently came to us because of a 2008 warrant for Simple Assault and ICC charges in Berks County. Back in 2008 this client was charged with Simple Assault and Terroristic Threats against his girlfriend and violating a PFA which was granted on the girlfriend’s behalf. The client left town without dealing with the charges and warrants were issued for his failure to appear. The client had no dealings with police or issues with the warrants until a couple of months ago when he attempted to update his immigration status and learned about the warrants. He was ineligible for a change in his immigration status while the criminal cases remained on his record so the client hired Berks County criminal law attorney Attorney Nevins to help him.

Attorney Nevins first brought the client into court to address the outstanding warrants. Once that was done, the preliminary hearing for the Simple Assault and Terroristic Threats charges was rescheduled. Attorney Nevins appeared on the client’s behalf and the charges were dismissed because the alleged victim from 2008 did not want to testify. Attorney Nevins then appeared in PFA court to represent the client for the ICC. Attorney Nevins was told that the alleged victim did want to testify for the ICC hearing. Upon reviewing the evidence against his client, Attorney Nevins noted that the client had not been properly served with the PFA back in 2008. Service of the PFA is a necessary element that the Commonwealth must prove before a defendant can be convicted of ICC. Attorney Nevins took this discovery to the Assistant District Attorney assigned to the case and convinced him to withdraw the charge.

Thanks to the hard work and attentiveness of Attorney Nevings, this client was able to leave Reading with no criminal convictions. Attorney Nevins has filed to expunge the criminal charges so that his client can move forward with his attempts to change his immigration status.

If you have a warrant for an old criminal case in Berks County or if you’ve been charged with an ICC charge for violating a PFA, contact our knowledgeable criminal law attorneys at 610-372-5128 or email us at info@enmlaw.com.

Spotlight Issue: DUI law update – ignition interlock limited license

Wednesday, September 27th, 2017

A law passed in 2016 changing the requirement for ignition interlock is now in effect as of August 25, 2017. What does Act 33 of 2016 mean for people convicted of DUI in Berks County? Let’s review what the law was prior to August 25th.

Under the old law, a person who was convicted of a first-offense DUI which carried a license suspension was usually eligible for an Occupational Limited License (OLL) after a certain period of the suspension had passed. This type of license (sometimes called a “bread and butter” license) allowed first-time DUI offenders to drive for limited purposes, including work and medical appointments. DUI ARD defendants were not (and still are not) eligible to receive OLL’s during their license suspension period. DUI offenders convicted of a second or subsequent DUI within 10 years were required to install the ignition interlock for a period of time after their driving privileges were restored. First time DUI offenders were never required to install ignition interlock.

So what has changed? First, DUI offenders are, for the most part, no longer eligible to receive OLL’s during their DUI suspension. This is also the case for DUI offenders with a separate suspension for refusing to submit to chemical testing under §1547. Second, all DUI offenders, except those in the ARD program and those charged with first offense general impairment (BAC below .08) are now required to have an ignition interlock installed in their vehicle for at least 1 year. During that time with the ignition interlock, the DUI offender is given an “ignition interlock limited license” which permits them to drive as long as the vehicle they are driving has been equipped with an approved ignition interlocks system.

The new law allows for exceptions to be made if the DUI offender does not own a vehicle or if installing an ignition interlock in all vehicles owned by the DUI offender would impose a financial hardship. Additionally, DUI offenders who drive a work vehicle can be exempt from the requirement to install the ignition interlock on the work vehicle, but only if is not driven for personal use.

This change is good news for a lot of Berks County DUI offenders. First-time DUI offenders are eligible to apply for the ignition interlock limited license as soon as their license suspension becomes effective. This means that there is little, if any, time when they are unable to drive. Repeat DUI offenders are allowed to apply for the ignition interlock limited license once they have completed half of their suspension. The new law makes it easier for DUI offenders to continue working and going to school while hopefully ensuring that they are doing so safely.

If you’ve been charged with a DUI in Reading, PA and have questions about when you are eligible to receive your ignition interlock limited license, contact our experienced Berks County DUI attorneys today at 610-372-5128 or info@enmlaw.com.

Spotlight Issue: Expunging PFA’s

Monday, August 28th, 2017

What can you do to remove a Protection from Abuse Order (PFA) from your record? Your ability to expunge the PFA depends on how far in the process your case proceeded. Our attorneys are very familiar with the steps necessary to successfully expunge Berks County PFA’s. First, here is a summary of the Berks County PFA process:

- a plaintiff files a petition requesting a PFA

- an ex parte (just plaintiff and judge) petition hearing is held at which time the plaintiff gives details about the alleged abuse that has occurred the judge decides if there is immediate danger and grants a Temporary PFA if he or she finds that there is

- a Final PFA hearing is scheduled within 10 days of the petition hearing – at the final hearing the Plaintiff has to prove by a preponderance of the evidence that abuse (as defined by statute) occurred

- if a judge finds that abuse did occur, he or she can enter a Final PFA for up to 3 years and can include relief such as eviction, prohibition of contact, temporary custody provisions and a prohibition on possessing firearms

So, can you remove a PFA from your record? Well, the answer is pretty straightforward if your case never got to the Final PFA hearing. If a Temporary PFA was not granted at the petition hearing, or if your Temporary PFA was dismissed before the Final PFA hearing then the law is pretty clear that any mention of the case can be removed from most databases. This is also true if your case proceeded to a Final PFA hearing and the judge found that no abuse occurred and dismissed the PFA. A Final PFA entered by agreement or after a hearing is much more difficult to expunge and the court must employ a balancing test to determine when expungement is appropriate.

Many people don’t take advantage of the expungement process for PFA’s, but the only way to ensure that a non-final PFA doesn’t have a negative impact in the future is to completely remove it from your record. If a PFA was filed against you in Berks County and later dismissed, make sure that it doesn’t come back to haunt you unexpectedly. Call our Reading, PA PFA expungement attorneys to start the expungement process today at 610-372-5128 or email us at info@enmlaw.com.

ENM Law News: Custody case dismissed in favor of ENM Law client

Monday, August 28th, 2017

A client came to see Attorney McAllister about a custody case filed by the father of her child in Berks County in December of 2016. Attorney McAllister quickly filed objections to the case on our client’s assertion that the child had been living with her in New Jersey for more than 6 months prior to the filing of the custody action.

Why does that timeframe matter? The Uniform Child Custody Jurisdiction and Enforcement Act, which governs child custody in almost all states is the U.S., determines where a custody action can be filed – this is called venue. A custody action can generally be filed in the child’s home county or the county where the child had previously been living if the child was still living there within 6 months of the commencement of proceedings and if a parent continues to live in that former county.

Once Attorney McAllister filed an objection to the custody case on the basis that the Berks County venue was not appropriate, the judge scheduled a hearing to take testimony from witnesses about when the child moved to New Jersey. After hearing the evidence, the judge determined that the child had in fact been living in New Jersey for more than 6 months prior to the commencement of the custody action and dismissed the case. Attorney McAllister’s experience and knowledge of custody law saved our client from having to travel to Berks County from New Jersey to defend against the custody case.

If a Berks County custody case has been filed against you, you need our knowledgeable Reading, PA custody attorneys to evaluate your case. Call us at 610-372-5128 or email at info@enmlaw.com.

ENM Law News: Dismissal of eviction case for commercial tenant

Friday, August 25th, 2017

Commercial tenants and landlords can have disagreements just like their residential counterparts. Disagreements can lead to eviction proceedings. Recently, a Berks County business owner came to Attorney McAllister because of a problem with a commercial lease. This client had signed a 2-year lease with the intention of running a hookah lounge in the building. After signing the lease, the client made many costly improvements to the property in an effort to upgrade the space and attract clientele. Only 3 months into the lease, the landlord tried to evict our client over complaints about loud music and too many people coming to the lounge. Our client stood to lose substantial amounts of money because of the improvements made to the property. The eviction case was scheduled for a hearing in front of a Berks County Magisterial District Judge. Attorney McAllister appeared on behalf of this client and argued that the lease had not been breached because the lease was silent on the complaints raised by the landlord. The MDJ agreed with Attorney McAllister and dismissed the eviction case which means that our client’s business can stay at its current location.

The eviction process for commercial leases is generally the same as those that most people are familiar with in residential leases. If a landlord for a commercial tenant believes that the lease has been breached either for failure to pay rent or failure to abide by the rules of the lease then he can take steps to evict the tenant. The eviction process begins with sending a Notice to Quit to the tenant which notifies the tenant of the alleged breach and sets a deadline for the tenant to vacate the premises. If the tenant does not fix the problem or leave the property then the landlord can file a complaint for eviction in magisterial district court.

If you’re a Berks County business owner having problems with your commercial lease, contact our knowledgeable real estate attorneys at 610-372-5128 or email us at info@enmlaw.com.

ENM Law News: RCC cases dismissed

Wednesday, July 26th, 2017

If you don’t know what RCC is, read our blog explaining it here.

As mentioned in the blog, if you’ve been charged with a crime within the City of Reading, your preliminary hearing will be held in Reading Central Court (RCC). RCC can be an overwhelming place and it is important to have an attorney who knows the ins and outs of the RCC system.

Our criminal law attorneys have spent many years representing clients in RCC. Here are some details about two recent cases handled by Attorney Nevins.

Attorney Nevins recently represented a client in RCC who was charged with discharge of a firearm into an occupied structure and simple assault. The client admitted that he was holding a gun that discharged, but said that it happened accidentally. The client said that he was surprised in the stairwell of his home by his estranged wife with whom he shared the house and inadvertently fired the gun. Attorney Nevins argued to the assigned Assistant District Attorney that the statute only criminalizes shots into a building from outside that building. The ADA agreed and withdrew the felony firearm charge. The client’s estranged wife who was listed as the victim in the simple assault charge indicated that she did not want to be involved with the case so Attorney Nevins asked for the assault charge to be withdrawn as well. At the end of the day, Attorney Nevins’ client walked away with no criminal charges after facing a felony of the third degree and a misdemeanor of the 2nd degree. Between the two charges he was looking at a possible 9 years of incarceration and a $20,000 fine.

Attorney Nevins also represented a client in RCC who was charged with resisting arrest. Resisting arrest is graded as a misdemeanor of the second degree and is punishable by a maximum sentence of 2 years of incarceration and a $5,000 fine. This client was sitting on the stairs next to a barbershop that had a “no trespassing” sign. A police officer approached the client and asked for his name. The client refused to give his name so the officer told him that he was being arrested. While the officer was trying to place him in handcuffs, the client stiffened his arms and the officer said that he was resisting the arrest. Unfortunately, the client was on probation at the time of his arrest so a detainer was lodged against him to keep him in jail. The client was in custody for 2 weeks waiting for his preliminary hearing in RCC. Attorney Nevins pointed out the problems in the Commonwealth’s resisting case and the Assistant District Attorney agreed to withdraw the resisting arrest charge in exchange for the client pleading guilty to a summary charge of trespass. The client agreed and was quickly released from jail.

Your preliminary hearing in RCC is your first chance to have the charges against you dismissed. You need an experienced criminal defense attorney on your side. If you’ve been charged with a crime in Reading, PA, contact our knowledgeable attorneys at 610-372-5128 or email us at info@enmlaw.com.

Spotlight Issue: What is Reading Central Court (RCC)?

Wednesday, July 26th, 2017

You’ve been charged with a crime and now you’re scheduled for something called Reading Central Court (more commonly referred to as “RCC”). Are you wondering what that means? We can help!

In Pennsylvania, the first stop for misdemeanor and felony cases is the preliminary hearing. This hearing is held in front of a magisterial district judge. At a preliminary hearing, the Commonwealth must establish a prima facie case that a crime was committed and that the defendant was the one who committed it. This hearing is the first chance for the defendant to test the evidence offered by the Commonwealth by cross-examining the witnesses put forward. It is important for you to have an attorney present to represent you at your preliminary hearing. It is in your best interest to have a knowledgeable criminal defense attorney on your side to evaluate the evidence and make the best arguments to the judge in support of your case.

After listening to the testimony and the arguments from the attorneys, the magisterial district judge will determine whether the Commonwealth has met their burden of proof for each charge. If the burden has not been met then the charge will be dismissed. If the burden has been met then the charges will be “bound over” to the Berks County Court of Common Pleas.

In Berks County, the location for your preliminary hearing is determined by where the alleged crime was committed. Each part of the County is divided into districts and a magisterial district judge is elected to hear cases in each area. However, all of the preliminary hearings for crimes allegedly committed within the City of Reading are held in RCC. These hearings are always held on Fridays at the Berks County Courthouse. RCC can be an overwhelming place and it is helpful to have an attorney who understands how the court operates.Our criminal law attorneys have many years of experience with navigating the RCC system and their experience can only benefit you.

If you’ve been charged with a crime in the City of Reading and have been scheduled for a preliminary hearing in RCC, contact our experienced criminal law attorneys today at 610-372-5128 or email us at info@enmlaw.com.