Archive for the ‘Uncategorized’ Category

Spotlight Issue: Negotiated dismissals – Rules 546 and 586

Tuesday, March 27th, 2018

If you’ve been charged with a crime in Berks County and part of the charge contains an allegation that you owe something to someone else (usually money), your attorney may be able to negotiate a dismissal upon satisfaction being made to the aggrieved party. This type of disposition is pursuant to Rule 586 (in front of the Court of Common Pleas), Rule 546 (in front of a magisterial district judge) or Rule 458 (dismissal of a summary offense).

This type of dismissal is not available in every case. Namely, Rule 586 only applies to charges that do not involve allegations of force or violence or threats thereof and Rule 546 only applies to misdemeanor and associated summary offenses. There are 4 additional requirements that must be met before a charge can be dismissed under these rules.

1 – the judge must find that the public interest will not be adversely affected
2 – the attorney for the Commonwealth (or the affiant if no attorney is present) must agree to the
dismissal
3 – satisfaction has been made to the aggrieved person or there is an agreement that
satisfaction will be made
4 – there is an agreement as to who will pay costs

Although these rules do not only apply to monetary crimes, that is often how they are applied. They are most commonly used in theft and fraud cases. A dismissal under these rules is very beneficial to defendants because no guilty plea is required and the dismissal happens much faster than in an Accelerated Rehabilitative Disposition (ARD) case.

Attorney McAllister recently represented a client in Reading Central Court who was charged with welfare fraud, a misdemeanor offense. This client was accused of receiving $1,800 in benefits that the client was not entitled to. A conviction for a fraud crime can have an extremely negative impact on a person’s ability to get a job, a loan or housing. Attorney McAllister was able to negotiate with the attorney for the Commonwealth and reach an agreement that the welfare fraud charge would be dismissed upon payment of the $1,800. The payment was made and the misdemeanor charge was dismissed pursuant to Rule 546 in front of a magisterial district judge.

If you’ve been charged with a theft or fraud crime and think that a Rule 586, Rule 546 or Rule 458 dismissal might be beneficial in your case, contact our knowledgeable Reading, PA criminal law attorneys at 610-372-5128 or email us at info@enmlaw.com.

Spotlight Issue: Unemployment compensation hearings

Friday, February 23rd, 2018

If you’ve been fired from your job in Berks County, PA, what should be your first step to secure a source of income? You must file for unemployment compensation. As long as you meet the eligibility requirements, you will receive payments.

There are two requirements to be eligible 1) you must have earned enough wages AND 2) the reason you aren’t working must not be the result of your own actions – generally this means that you were terminated for a reason OTHER THAN wilful misconduct – usually you are not eligible if you quit your job, but there are exceptions to this rule such as quitting as a result of harassment.

After you have filed for unemployment compensation, you will receive a notice from the Office of Employment Security notifying you whether or not you have met the eligibility requirements. If you are denied benefits, you can appeal the decision. Conversely, if you are granted benefits, your employer can appeal the decision. Under either circumstance, the appeal MUST be filed within 15 days of the mailing of the notice.

Appeal hearings are scheduled in front of a Referee. At that hearing, you will be expected to present evidence and cross-examine witnesses. If you were fired then your employer has the burden of proving that you were terminated because of your own wilful misconduct. If you quit then you have the burden of proving that you had a necessitous and compelling reason.

The good news is that you don’t have to handle this on your own. You should hire an experienced unemployment compensation attorney to guide you through the process and give you the best chance of success at your hearing. Contact our Reading, PA unemployment compensation appeal attorneys at 610-372-5128 or info@enmlaw.com.

ENM Law News: Unemployment compensation appeal win

Friday, February 23rd, 2018

After being terminated from a job and denied unemployment compensation, a recent client came to ENM Law for advice. The client’s former employer reported that the client didn’t follow proper procedures for calling off of work and eventually quit. Our client denied these claims of wilful misconduct. Attorney McAllister filed an appeal of the denial of compensation before the 15 day appeal period expired and the matter was scheduled for a hearing in front of an Unemployment Compensation Appeal Referee. This hearing was the client’s only chance to present evidence to the Referee to establish why the denial of compensation should be reversed. A hearing often includes presenting witnesses and documents to support the request for reversal. Here, Attorney McAllister helped his client testify about the relevant evidence and the Referee reversed the decision.

Thanks to the hard work of Attorney McAllister, our client walked away with full unemployment compensation benefits.

If you’ve been denied unemployment compensation in Berks County, contact our knowledgeable Reading, PA unemployment benefits attorneys before you run out of time to file an appeal. Call us at 610-372-5128 or email at info@enmlaw.com.

Spotlight Issue: Social media and family law

Tuesday, January 30th, 2018

You may not realize the significance of social media posts in your Berks County family law case until it is too late. For that reason, think before you post! Having a social media presence is expected and common these days, but when you’re embroiled in a contentious custody, divorce or support case, what you post on Facebook, Twitter or any of the other sites, could negatively impact your chances of success.

Let’s examine some possible scenarios.

You’ve made an argument in domestic relations that your support obligation should be reduced because your hours were cut at work. But, the week before your modification hearing, you post pictures on Facebook of the new vehicle that you just purchased. The attorney for your ex brings those pictures to the conference officer’s attention and argues at the conference that your support obligation shouldn’t be reduced because there obviously hasn’t been a significant change in your circumstances. The conference officer agrees and recommends to the judge that the support order not be amended.

You’ve filed a petition asking the court to grant you more custodial time with you children. However, the last 3 weekends that you’ve had your children, you hired a babysitter to stay with them and went out with your friends. You also posted pictures on Instagram while you were out. The attorney for your ex brings those pictures to court and argues that you aren’t taking advantage of the time that you currently have with your children and that modifying the custody schedule would not be in the best interest of your children. The judge denies your modification request.

You’re in the middle of a difficult divorce and negotiations have been ongoing. Your attorney tells you that you are finally getting close to a resolution and it looks like you’re going to end up keeping the marital residence, which is what you really want. Late at night you decide to write a tweet talking about karma which is obviously about your ex even though you don’t mention any names. You get a call from your attorney the next day that the deal is off.

How can you prevent the above situations from happening? Well, aside from the obvious answer of not making the posts in the first place, we have a couple of tips to keep in mind. Be sure that all of your social media accounts have high “privacy” settings so that strangers can’t access your pages. Remember that social media posts and text messages are very easily preserved and can be used against you in court. Be aware that social media posts can inflame emotions and make negotiations in Berks County family law cases more difficult. If you’re questioning whether it’s a good idea to post something, it probably isn’t.

The scenarios we’ve discussed may seem extreme and obvious, but similar situations are not uncommon and it’s important to think about how something you post on social media could affect your own case. If you’re already involved with divorce, support or custody case in Reading, PA or are about to be, it’s important for you to have a Berks County family law attorney who pays attention to the details of your case. Contact our knowledgeable attorneys at 610-372-5128 or email us at info@enmlaw.com.

Spotlight Issue: New tax law will affect alimony deduction

Saturday, January 6th, 2018

The new tax law makes many changes to the existing tax structure, but for our purposes we will only discuss the one which clearly impacts Berks County family law clients: the removal of the alimony deduction.

Alimony is a regular payment made to a spouse during the pendency of a divorce (alimony pendente lite) or a payment scheduled put in place after a divorce is finalized. Alimony can be part of a prenuptial agreement or a marriage settlement agreement or it can be ordered by a judge following a hearing. The purpose of both types of alimony is to place spouses on equal financial footing for some period of time. The amount of alimony pendente lite is generally determined by statutory guidelines, just as with child support. Alimony, on the other hand, is a discretionary award and the court uses statutory factors to determine the amount. The amount of time that alimony will be paid is also determined by the court. Some relevant factors considered by the court in determining amount and length of time for payments are length of marriage, earning capacity of each party, assets of each party and the degree to which one spouse has contributed to the education and career of the other spouse.

So, while there are a variety of factors that determine amount of alimony and alimony pendente lite awards, all payors and payees followed the same tax rules regarding these payments: recipients included the payments as income and payers could claim the money as a deduction. However, for all divorces commenced after December 31, 2018, these tax rules will cease to exist. The person paying alimony can no longer claim it as a deduction and the person receiving alimony will no longer need to include it as income. This change will not affect anyone with a current alimony award. This will bring the the tax rules for alimony in line with the rules for child support although the discretionary aspect of alimony prevents the two forms of support from being equal.

Some experts fear that the loss of a deduction for the person paying the alimony will lead to a reduction in agreed upon alimony awards. Only time will tell whether or not that is the case. However, this is certainly something that should be discussed with your divorce attorney and it will undoubtedly become a more pressing issue as the December 31, 2018, deadline gets closer.

If you have questions about how the new tax law could affect your Berks County divorce case, contact our knowledgeable Reading, PA divorce attorneys at 610-372-5128 or info@enmlaw.com.

ENM Law News: “Not guilty” verdict in Homicide trial

Wednesday, December 27th, 2017

A criminal case can’t get much more serious than a murder charge and not all attorneys are capable of handling this type of case. However, when Attorney Nevins was given the responsibility of representing a client accused of criminal homicide in Reading, PA, he knew that he was up to the challenge.

Our client was charged with fatally shooting a man during the early morning hours of June 4, 2016. Video from the incident showed that the decedent was the initial aggressor and that our client backed away. The decedent went for his waistband, but came away with nothing. At the same time, our client drew his legally possessed weapon and pointed it as the decedent advanced seven steps towards our client. Our client fired one shot. After interviewing our client, the police reviewed surveillance footage and because there was a discrepancy between our client’s report and the video, the police filed a homicide charge. Because of the nature of the charge, our client was denied bail pending trial.

After consultation with his client, Attorney Nevins decided that the argument at trial would be one of justification: that our client was justified in using deadly force in defense of himself. In preparation for trial, Attorney Nevins filed a motion in front of the judge asking that he be allowed to present evidence of the decedent’s gang affiliation as well as history as a domestic abuser. This type of evidence is permitted at trial only under narrow circumstances. In a major win for the defense, the judge granted Attorney Nevins’ motion and this important evidence was heard by the jury. In addition, Attorney Nevins was permitted to present testimony of our client’s former service in the Marines. Ultimately, Attorney Nevins was able to convince the jury that our client acted reasonably in defending himself with deadly force. The jury found our client “not guilty” and he was released after spending almost a 1 ½ years in Berks County Prison while awaiting his day in court.

While you may not need help with a homicide charge, you want to be represented by a Reading, PA criminal law attorney who knows how to represent a client against the most serious of charges. If you’ve been charged with a crime in Berks County, contact our knowledgeable criminal attorneys at 610-372-5128 or info@enmlaw.com.

ENM Law News: Felony Burglary charge dismissed at preliminary hearing

Sunday, December 17th, 2017

Usually, a Reading, PA attorney’s first chance to make a difference in your criminal case is at the preliminary hearing. The Commonwealth has to present evidence of a prima facie case in order for the charges to be bound over to the Berks County Court of Common Pleas. All preliminary hearings for cases within the City of Reading are held on Fridays in Reading Central Court (read more about preliminary hearings and RCC here). A preliminary hearing is the first time that your attorney can hear the evidence against you and test the Commonwealth’s witnesses. The best case scenario is that the case is dismissed at the preliminary hearing.

Attorney McAllister recently had one of those “best case scenarios.” Attorney McAllister’s client was charged with Burglary of an Unoccupied Structure, a felony of the second degree, along with associated theft charges. The Burglary charge carried a maximum permissible sentence of 10 years of incarceration and a $25,000 fine. Further, this client was committed to Berks County Prison and remained incarcerated pending his preliminary hearing. Obviously, this client was facing a very difficult situation.

The Commonwealth’s case was based on the statement of a witness who told police that our client admitted to burglarizing a storage unit. Attorney McAllister saw an opportunity to attack the witness’s credibility and version of events and insisted on a hearing in Reading Central Court. As Attorney McAllister expected, the Commonwealth’s witness fell apart on the stand and was unable to implicate our client in the crime. His story crumbled further under cross-examination by Attorney McAllister. The Magisterial District Judge could only rely on the witness’s statement in court and granted Attorney McAllister’s request to dismiss all of the charges.

If you’ve been charged with a crime in Reading, PA, call our experienced preliminary hearing attorneys to discuss the best way to handle your case. Contact us at 610-372-5128 or info@enmlaw.com.

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.