April 6

Injured in an Auto Accident?

Injured in an Auto Accident?

One minute you’re driving in your car or truck, the next minute your life is changed forever. You miss work, spend time in the hospital, are in pain. You may have to take extended time off work and not be able to do the things you are used to doing because of your injury.

At times like these, you need a law firm with caring and attentive lawyers. You need a lawyer who will have your best interests at heart and will help you get through this painful process.

Call the Kilgus Law Offices for a free consult. You will be taken care of. 570-312-0386.

April 6

Breach of Fiduciary Duty

Breach of Fiduciary Duty

A fiduciary of the estate of a decedent is defined as a person who owes to another the duties of good faith, trust, confidence, and candor. This person must exercise a high standard of care in managing another person’s money and/or property. In Estate matters, a fiduciary can be a person or professional entity, such as a bank, who holds a special relationship of trust and responsibility to another person. Typically, in estate matters, the fiduciary is the executor, personal representative, administrator, trustees or agents.

A breach of fiduciary duty may be as follows:

  • Failure to provide required and requested information to the beneficiaries of an estate or trust;
  • Embezzlement or fraud committed by the executor or trustee;
  • Fraud by transferring money or property to a third party without notice to the beneficiaries;
  • Intentional negligent oversight or investment of assets held by an estate or trust;
  • Failing to conclude the administration of the estate in a reasonable time;
  • Removal of property from the estate without approval by the beneficiaries;
  • Failure to follow the terms of a trust, including failure to make distributions to the beneficiaries in a reasonable time;
  • Failure to carry out the instructions and wishes of the decedent as described in the will, and;

If you believe a fiduciary has committed a breach of fiduciary duty, the attorneys at the Kilgus Law Office can help you analyze your case and bring your matter before the Court.

Contact us to set up a consultation at 570-312-0386.

January 24

Pennsylvania’s New Expungement and Parson Laws

Pennsylvania’s New Expungement and Parson Laws

Roughly 1 in 3 Americans have a criminal record. There have been laws passed to limit the use of these records by employers, colleges and other to deny opportunities to Americans. Expungement, defined in 42 Pa.C.S. 9102, as removal of criminal information so that there is no trace or indication that the information exists. Expungement is available when the citizens files an expungement motion, a hearing is held, and the court orders expungement of the citizen’s record.

The decision to grant or deny expungement lies within the discretion of the court. The court will balance the competing interests of the petitioner and the Commonwealth. The statute also prohibits the court from expungement of cases for the following crimes:

18 Pa.C.S. 3121 (Rape)
18 Pa.C.S. 3122.1 (Statutory Sexual Assault)
18 Pa.C.S. 3123 (Involuntary Deviate Sexual Assault)
18 Pa.C.S. 3124.1 (Sexual Assault)
18 Pa.C.S. 3125 (Aggravated Indecent Sexual Assault)
18. Pa.C.S. 3127 (Indecent Exposure)
18 Pa.C.S. 5902 (child pornography).

Expungement of summary offenses is governed by Rule 490 of the criminal rules of criminal procedure. Expungement of court cases is governed by Rule 790. Forms are available at www.pacourts.us/forms/for-the-public.

Before November of 2016, Expungement was only available for summary offenses. Beginning in November, 2016, Pennsylvanians will be able to seal the records of 2nd and 3rd Degree Misdemeanors and ungraded misdemeanors, such as possession of controlled substance and DUI. Sealing will be available to Pennsylvanians after a ten-year waiting period, during which the petitioner has not been arrested or prosecuted for another offense.

People with certain convictions, including simple assault (except 3rd Degree), four or more offenses punishable by imprisonment of one or more years, and any offense punishable by more than two years’ imprisonment are ineligible for expungement.

Sealed records will be unavailable to the public, including private employers, landlords, and, unless requested by an agency that is authorized, “no individual shall be required nor requested to disclose information about the person’s sealed criminal history records”.

to whom disclosure is already authorized, “no individual shall be required nor requested to disclose information about the person’s [sealed] criminal history records.”

Pending legislation

Pennsylvania SB-1197/HB-1984

Twin “Clean Slate” bills introduced in April 2016 would follow up on last year’s sealing bill by making make sealing automatic upon satisfaction of an eligibility waiting period: Ten years for misdemeanors, five years for summary offenses, and seven years for juvenile adjudications. Sealing of non-conviction records will be automatic and immediate. The bills would also eliminate the exception under the current law that allows for most occupational and licensing boards to consider records that have been sealed. According to Community Legal Services of Philadelphia, both bills have received broad bi-partisan support, and indeed the Senate passed its bill unanimously not long after its introduction.

Pennsylvania Pardons

A Pardon is and act by the governor of Pennsylvania that erases your conviction from your criminal record. Prior to November 2016, the only way a felony or misdemeanor could be eliminated was pardon, never by expungement. Anyone is eligible to ask for a pardon, but usually those who have a minor offense can have remained law abiding for 5 years, or serious offenses who have remained law abiding for 10 years are most those granted. The process is started by sending a short letter to the Board of Pardons requesting a hearing. Documents such as your certified criminal and driving records, letters of recommendation and other evidence of law abiding actions should be included. Most important, you should include a statement of why you think you should be pardoned. It takes about two years for the Board of Pardons to send an agent to interview you and gather other information. The application and agent’s report and other documentation is reviewed by the Lt. Governor, a victim representative, a corrections expert and a psychologist. It will take an additional year for the Board to issue its opinion on whether you should be pardoned. The Governor of Pennsylvania makes the final decision on pardon. If the petitioner is granted a pardon, he/she must then file for expungement in the court in which they were convicted.

Call the Kilgus Law Offices, LLC for help with expungement and pardon.

December 14

Unjust Enrichment

Unjust Enrichment

Under Pennsylvania law, “when a person receives a benefit from another, and it would be unconscionable for the recipient to retain that benefit, the doctrine of unjust enrichment requires the recipient to make restitution. This is an “equitable” doctrine that will be imposed on the recipient an obligation in the nature of quasi contract.” Myers-Macomber Engineers v. M.L.W. Construction Corp., 271 Pa. Super. 484, 414 A.2d 357 (1979).
The concept of unjust enrichment serves the purpose of allowing for the enforcement of obligations that may not qualify as contractual. However, restitution for unjust enrichment is not predicated on a promise, but on the restoration of an unfair gain.

The cause of action of unjust enrichment arises where one party has obtained a benefit at the expense of another under circumstances that make it unfair for the recipient to retain the benefit without paying
for it.

In Pennsylvania, where unjust enrichment is found, the law implies a contract, which requires the defendant to pay to the plaintiff the value of the benefit conferred. Schenck v. K.E. David, Ltd., 446 Pa.Super. 94, 666 A.2d 327 (1995). The elements necessary to prove unjust enrichment are:
(1) benefits conferred on defendant by plaintiff;
(2) appreciation of such benefits by defendant; and
(3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. Id.

The application of the doctrine of unjust enrichment depends on the particular factual circumstances of the case at issue. In determining if the doctrine applies, the court’s focus is not on the intention of the parties, but rather on whether the defendant has been unjustly enriched. Id., 666 A.2d at 328. Accord Torchia v. Torchia, 346 Pa.Super. 229, 499 A.2d 581, 582 (1985) (“[t]o sustain a claim of unjust enrichment, a claimant must show that the party against whom recovery is sought either ‘wrongfully secured or passively received a benefit that it would be unconscionable for her to retain.’ ”)

If you believe that you have a cause of action based on the doctrine of unjust enrichment in Pennsylvania, please contact the lawyers at Kilgus Law Offices, LLC.

 

This article is intended to assist the reader as a learning aid, but does not consitute legal advice. The article is not written (nor is it intended to be used) for the purposes of avoiding penalties under any applicable law (e.g. Medicaid, Veterans, Social Security), not to promote, market or recommend any transaction or matter addressed and, given its purpose. Diligent effort was  made to ensure the accuracy of these materials, however, the author assumes no responsibility for the reader’s reliance of them an encourages the reader to seek legal advice if needed. Copyright 2016 Mary C. Kilgus, Esq. All rights reserved.

December 14

Caring for Disabled Family Members

Caring for Disabled Family Members

Taking care of a disabled family member causes worry for parents and family.

Many families with disabled children worry endlessly about who will take care of their loved one when they are gone. In Pennsylvania, a Special Needs Trust allows an individual with disabilities to maintain assets to use throughout his or her life and remain eligible for Medical Assistance (MA), Supplemental Security Income (SSI), Mental Health/Intellectual Disability services, Medicaid Waiver programs and other public benefits. These types of trusts protect resources from immediate invasion by the state Medicaid agency.

If you or someone you know has worries about a disabled family member, come to the Kilgus Law Offices, LLC for compassionate help creating a Special Needs Trust.

 

This article is intended to assist the reader as a learning aid, but does not consitute legal advice. The article is not written (nor is it intended to be used) for the purposes of avoiding penalties under any applicable law (e.g. Medicaid, Veterans, Social Security), not to promote, market or recommend any transaction or matter addressed and, given its purpose. Diligent effort was  made to ensure the accuracy of these materials, however, the author assumes no responsibility for the reader’s reliance of them an encourages the reader to seek legal advice if needed. Copyright 2016 Mary C. Kilgus, Esq. All rights reserved.