The Mazza Law Group, P.C.
2790 W. College Ave., Suite 800
State College, PA 16801 March 10, 2016
(814) 237-6255

DACA – What to Do While Awaiting Possible Reform?

DACA Recipients and Employers. It has been over a month since the current administration announced that it would be ending President Obama’s executive order known as DACA- or deferred action for childhood arrivals.  President Trump has urged Congress to take action with respect to the “dreamers”- those undocumented immigrants who came to the US as children, who have no criminal record and are generally either students or employed.

Unfortunately, the current state of affairs creates a great deal of uncertainty for DACA recipients, their families, and their employers.  A legislative solution is a possibility, but no one can be sure what that will entail and whether it will get through Congress.

In the meanwhile, what should DACA recipients or their employers do to avoid the potentially harsh consequences of losing this form of relief?

First of all, an immigration attorney should be consulted to discuss all potential avenues for relief.  There may be immigration benefits available which would only be discovered after a thorough discussion with an attorney about the individual’s family, how and when they entered the US, their employment and education, whether they are a victim or witness to criminal activity, or may be a victim of abuse or human trafficking.  For example, some individuals may have a claim to citizenship through a parent that was a citizen.  Some may be eligible for relief based on their level of education or outstanding achievement in their field of study or employment.  Still others may be eligible for relief if they have assisted or cooperated with law enforcement in the prosecution of crime.

There have been reports of the potential effects of DACA on employers around the country, who may lose valuable employees and suffer as a reduced labor force.  An employer may be able to assist a DACA recipient by filing an employment-based petition or by helping the employee in finding and retaining an immigration lawyer to explore the potential forms of relief available.

Finally, DACA recipients and their employers must keep abreast of legislative, administrative, and executive changes that affect their status to be prepared to apply for any new forms of relief that become available as soon as possible, and to avoid violating immigration or labor laws.

Nurse Anesthetist Student terminated for refusing Drug Test in PA

A nurse anesthetist student at Bloomsburg University (Bloomsburg) was terminated from the Nurse Anesthetist Program (NAP) for refusing a drug test.  The NAP was a partnership between Bloomsburg, a public university and member of the Pennsylvania State System of Higher Education, and Geisinger Medical Center (Geisinger), a private hospital.  Bloomsburg provided classroom instruction for the NAP program and Geisinger handled the clinical component.  After dismissal from the NAP program, the nursing student, Angela Borrell, filed a §1983 action in the United States District Court for the Middle District of Pennsylvania against Bloomsburg and Geisinger claiming that she was deprived of her due process rights because she was dismissed from the program without a pre-deprivation hearing.

The District Court granted summary judgment in favor of Borrell and awarded her $250,000.00 in compensatory damages and $750,000.00 in punitive damages.  The case took an 180˚turn when the United States Court of Appeals for the Third Circuit overturned the District Court’s decision and entered judgment for the defendants.  The ruling, found a distinction in whether the director of the NAP program, a Geisinger employee, was wearing his Geisinger hat or his Bloomsburg hat when he terminated Borrell.  This is important distinction because Geisinger is a private hospital and its policies permitted termination for failure to submit to a drug test without offering any right to be heard.  Unlike the District Court, the Third Circuit found that the NAP director was not acting under the color of state law in that he had unilateral authority to terminate Borrell based on Geisinger’s employment policies.  Consequently, the protections afforded by Constitution regarding due process did not apply.

The legal authority created by this case raises a number of questions and scenarios that students working to obtain professional licensure encounter.  The decision to not take a drug test created collateral consequences that Borrell was probably not prepared to face.

If you or someone you know is working to obtain a professional license or certification in Pennsylvania and encounters questions or problems, they should consult a lawyer to find out how their rights may be affected.  A lawyer at The Mazza Law Group can help.

SCHOOL and LEGAL CUSTODY

It’s back to school time.  Does the school know you and your legal rights?   If you are divorced or separated, you might be interested in some legal information and reminders to help make the beginning of the school year go smoothly.  The information contained in this article is not legal advice, and you should consult with a lawyer before you attempt to pursue any custody rights.

  1. In Pennsylvania, ‘‘legal custody’’ means “the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.”   23 Pa .Code 1915.1   Most parents have joint legal custody and are able to speak to the teachers, nurses and administrators in the school, attend functions, and transport their child to and from the school.  Parents are expected to talk to the other legal custodian before making decisions that affect the child’s schooling so that both have input.
  2. “Physical custody “is defined by law as “the actual physical possession and control of a child.” In a more human sense, physical custody is where the child lives, and it is usually shared by some schedule of custodial time. Schools may want to know who has physical custody and who can be expected to pick up the child after school.   If there are other adults who are not custodians but may be picking up the child, it is likely that the school will require the parent’s written permission.  Make sure that the school has your consent before the babysitter shows up!
  3. If there is a court order limiting or restricting the noncustodial parent’s contact with the child, you may want to have a copy of the court order in the student’s record. Even if a parent has restricted physical contact, they should be able to obtain information and see school records with joint legal custody rights. Without a court order, both natural parents have equal access to the child and the child’s school records.
  4. If parents disagree about custody and education issues, there are 16 factors that the Court considers when deciding what is best for the child, and some of them relate to a parent’s involvement in supporting the child’s attendance and good performance in school.  The factors include:  (a) the need for stability and continuity in the child’s education, family life and community life; (b) which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child; and (c) the parental duties performed by each parent on behalf of the child.

In disputes between parents about where the child will attend school, the Court will review all 16 relevant factors. “The paramount concern in a child custody case is the best interests of the child, based on consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being, and is to be made on a case by case basis.” See Staub v. Staub

If you have questions about school and legal custody, physical custody, or the best interests of your child, call the Mazza Law Group and speak to an experienced family law attorney.

 

 

Pennsylvania Supreme Court Decides Right-to-Know Case in Favor of Centre County Resident

Pennsylvania Supreme Court Decides Right-to-Know Case in Favor of Centre County Resident allowing access to police dashcam video. On June 20, 2017, the Pennsylvania Supreme Court issued a decision allowing public access to police “dash cam” videos, unless the police can prove that such videos include investigative material.  Centre County resident Michelle Grove, represented by attorney Helen Stolinas of the Mazza Law Group in State College, had requested “dash cam” videos depicting the State Police response to a motor vehicle accident that a friend had been involved in.

The Pennsylvania State Police (PSP) denied Grove’s request, and Grove appealed that decision to the Pennsylvania Office of Open Records, which granted the request.  PSP thereafter appealed to the Commonwealth Court, which generally affirmed her right to obtain the records.  Finally, PSP appealed to the Supreme Court of Pennsylvania.

The State Police argued that such video recordings should always be deemed exempt because they relate to a criminal investigation, which creates an exemption under the Right to Know Law.  However, the court rejected this argument and held that each request must be decided on a case-by-case basis, and the burden of establishing that the video includes exempt information is on the State Police.

Attorney Helen Stolinas argued the case before the Pennsylvania Supreme Court on September 14, 2016 on behalf of Ms. Grove.  Of the Court’s 5-2 ruling, she states, “We are pleased with the court’s decision that routine traffic stops and responses to automobile accidents do not per se constitute investigative or criminal records.  The opinion also affirmed our position that requiring an agency to redact electronic records does not constitute the “creation” of a record and does not exempt the video or other electronic record from being released to the public.  This is a victory for Ms. Grove, for the citizens of the Commonwealth of Pennsylvania, and the press, as it allows for greater oversight of the activities of public servants.”

If you have a question about an adverse ruling in a criminal, civil, or administrative matter, and are considering appealing, contact the experienced attorneys at the Mazza Law Group.

Fines/Restitution paid by Defendant ordered returned

Due process requires the return of money paid towards fines, costs and restitution follow a Defendant’s successful appeal where prosecution declines to retry the case.  In Nelson v. Colorado, at issue was a Colorado case in which the defendants were convicted, but those convictions were reversed on appeal.  When the prosecution decided not to retry their cases, they sought return of the thousands of dollars they had already paid in previously ordered fines, costs, and restitution.  Colorado had a scheme which require such individuals to file a civil suit and prove their actual innocence by a preponderance of the evidence in order to get a refund.

The United State Supreme Court issued a ruling invalidating Colorado’s statute, stating that fines, costs, and restitution paid by an individual who successfully appeals a conviction of a crime and who will not be retried, must be returned to the defendant.

In delivering her opinion, Justice Ginsburg stated that such Colorado’s procedure deprives individuals of their right to due process.  “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions”.

Since the defendants did not stand convicted of the offenses, they were presumed innocent under the law, so it would be a violation of constitutional rights to require them to prove actual innocence in order to recover their money.  Noting that the convictions were invalid, “the state had no legal right to retain their money.”

If you have a case that was successfully appealed, you may be entitled to have any fines, costs and/or restitution you paid refunded. Likewise, if you or a loved one is facing a criminal trial or would like to file an appeal or post conviction relief petition, call the criminal defense lawyers at The Mazza Law Group for an assessment of your case.

H-1B Visa Enforcement under the new administration

Since taking office in January, President Trump and his administration have announced a “targeted approach” in the investigation of employment-based visa fraud.  Therefore, it is important for employers who hire foreign nationals on a temporary basis under the H-1B visa program to comply with the law and regulations of the program.

The H-1B visa program allows employers to temporarily hire highly skilled foreign nationals in specialty fields when there is a shortage of US citizens or lawful permanent residents to fill those positions.   Employers must meet specific requirements, such as filing a labor condition application with the Department of Labor.  This application requires an employer to establish that foreign nationals will be paid in accordance with the actual and prevailing wage, and that working conditions will be equivalent for both American and foreign nationals, to avoid unfair competition that arises when foreign workers are paid less than US citizens or lawful permanent residents for the same positions.

According to a recent press release, U.S. Citizenship and Immigration Services (USCIS) will conduct site visits to employers with a focus on:

  • Cases for which USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
  • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

If you are an employer of foreign nationals, it is important to remain informed of policy changes and the enforcement priorities under the new administration.  The lawyers at The Mazza Law Group are closely monitoring new developments in the law and policy on a daily basis.  If you need representation in an immigration matter, please call our office to schedule a confidential consultation today!

Custody & Visitation Rights – Incarcerated Parents

Judges in Pennsylvania are required to consider sixteen factors when deciding the custody schedule that is in the best interest of a child.  These relevant factors are listed in 23 Pa. C.S. §5328(a).  All of the factors “which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being” are said to be important in deciding who should have custody and visitation rights.  The Court must give weighted consideration to those factors which affect the safety of the child.”

What happens when a parent is in prison? In the case of Etter v. Rose, 454 PA.Super. 138 (1996), the Superior Court outlined additional considerations to be evaluated when a parent is incarcerated. They include:  (1) age of the child; (2) distance and hardship to the child in traveling to the visitation site; (3) the type of supervision at the visit;  (4) identification of the person(s) transporting the child and by what means; (5) the effect on the child both physically and emotionally; (6) whether the parent has and does exhibit a genuine interest in the child; and (7) whether reasonable contacts were maintained in the past.

The Pennsylvania Supreme Court, in D.R.C. v. J.A.Z., 612 Pa. 519 (2011) added that the type of crime committed by the parent is relevant to the best interest of the child when deciding custody.  By statute, a parent must report whether they (or any other adult in their household) have committed a criminal offense if they are seeking a custody order.  While it may be a red flag warranting the attention of the Court, a conviction does not automatically prohibit visitation – even if it has resulted in the incarceration of the parent.

Most recently, in the case of M.G. v. L.D.,  decided on February 8, 2017, the Superior Court confirmed that the nature of the criminal conduct that led to the parent’s incarceration should be considered when determining the child’s best interest.  The M.G. v. L.D. court evaluated the incarcerated mother’s crime (shooting the child’s other parent) as well as her other behaviors in deciding whether she should have telephone contact, written correspondence or visitation with her daughter. Even though fundamental parental rights are protected by the First and Fourteenth Amendments to the Constitution, the child’s best interest should be of paramount concern to the Court.  Incarceration, in and of itself, does not prevent a parent from seeing a child, but visitation must be adjusted to account for the unavailability of the parent.   If you want to learn more about custody and visitation rights of parents, whether incarcerated or free, consult with an experienced family law attorney at the Mazza Law Group, P.C.

Is Petit Larceny in NY equal to Retail Theft in PA?

Every retail theft is a petit larceny, but not all petit larcenies are retail thefts…

On March 1, 2017, the Superior Court issued a ruling in a matter of first impression- that being whether an individual’s prior convictions for petit larceny in New York constitute prior offenses for determining the proper grading for the offense of retail theft in Pennsylvania.

In Commonwealth v. Vandyke, the defendant stole $14.50 worth of items from a Dollar General store, was prosecuted for Retail Theft, and pleaded guilty.  She had two prior convictions for the offense of petit larceny in New York- both shoplifting-related incidents- and those offenses were counted by the court as prior retail thefts, making this case a felony and punishable by up to seven years in jail.

Ms. Vandyke appealed the Judge’s ruling, arguing that petit larcenies should not count as prior offenses and the charge should have been therefore treated as a summary offense punishable by no more than 90 days for a first offense.  At issue in the appeal was whether New York’s petit larceny was “similar” to Pennsylvania’s retail theft statute- and also, whether the court could review police reports and look into circumstances of prior, out-of-state convictions to determine whether the facts underlying them were similar to Pennsylvania’s retail theft statute.

As the court stated, “A conviction for petit larceny would apply to the theft of items from a retail establishment, but would also apply to theft of a bike from outside a home, tools from a construction site, or any number of crimes not involving retail thefts.”  In pointing out the differences between these two crimes, the Superior Court decided that it was error for the sentencing court to count them as priors, finding that she was guilty only of a summary offense, not a felony.

If you or a loved one are charged with a crime and have a prior offense, it is important to have an experienced criminal defense attorney review the case and your prior record thoroughly.  Call the criminal defense lawyers at the Mazza Law Group to discuss your case confidentially.

Procedure for Mental Health Commitment Expungements Clarified

For individuals who have been subjected to an involuntary mental health commitment under the Mental Health Procedures Act, there may be collateral consequences of that commitment.  First of all, such a commitment prevents an individual from possession of or purchase of a firearm.  Secondly, the record may become available in the even the individual applies for a security clearance or certain professional licenses and other types of employment.

There is a process by which an involuntary mental health commitment can be expunged.  An individual may petition for expungement of the records of the commitment by filing a petition to ask the court to review the sufficiency of the evidence upon which the commitment was based.  If the evidence is sufficient, the commitment records provided to the Pennsylvania State Police shall be expunged.

While the law provided for such an expungement proceeding, courts and practitioners were left with questions as to how the law would be applied and how the court would determine the sufficiency of the evidence.  In the matter of In re Vencil, decided January 19, 2017, the petitioner requested expungement of a mental health commitment.  The trial court denied the petition, but the Superior Court held that Ms. Vencil was entitled to a de novo hearing, and that clear and convincing evidence to support the commitment must be presented.

The Pennsylvania State Police appealed this decision to the Pennsylvania Supreme Court, which reversed the Superior Court and clarified the legal standard for an expungement, by stating:

“The trial court’s review is limited to the findings recorded by the physician and the information he or she relied upon in arriving at those findings, and requires deference to the physician, as the original factfinder, as the physician examined and evaluated the individual in the first instance, was able to observe his or her demeanor, and has particularized training, knowledge and experience regarding whether a 302 commitment is medically necessary.”

This standard seems to limit the review to whether the physician’s decision was reasonable based on the information available to the physician at the time of the examination, and does not seem to allow for extrinsic evidence to be considered.

However, there may be relief available to an individual who is precluded from possession of a firearm in the form of a petition to restore firearm rights, which may be granted if the individual can prove to the court he or she may possess a firearm without risk to self or others.

If you or a love one have been the subject of an involuntary commitment, you may have a question about your rights and whether the records can be expunged.  Contact an experienced attorney at the Mazza Law Group, who will discuss your case confidentially to determine whether you may be entitled to some relief.

Superior Court rejects enhanced penalties in DUI refusal cases

In a decision issued January 31, the Superior Court of Pennsylvania decided that increased penalties may not be imposed as a result of an individual exercising his or her right to refuse a blood test in a DUI refusal case.  In Commonwealth v. Giron, the court noted the US Supreme Court’s decision in Birchfield v. North Dakota, which held that consent for a blood test is not given voluntarily if done so to avoid increased criminal penalties.  Without a warrant or exigent circumstances, an individual cannot be subjected to enhanced criminal penalties, such as are called for in Pennsylvania’s DUI law, for exercising his or her constitutional right to refuse a blood test.

This case could have a profound impact on an individual’s sentence for DUI, particularly those with prior offenses both in terms of the mandatory minimum and the maximum possible sentence.  For a second offender, the mandatory sentence with refusal is 90 days minimum to five years maximum, but as a general impairment offense, the mandatory sentence would only be five days minimum to six months maximum.

In its decision, the court did not address issues involving non-criminal penalties, such as a driver’s license suspension for a refusal.  In fact, the Supreme Court noted approval of civil penalties for refusal to take a blood test, such as the automatic 12-18 month suspension for a refusal, regardless of whether there is a conviction.

If you or a loved one are charged with a DUI, or have been convicted and sentenced for a DUI “with refusal” you should discuss this ruling with an experienced DUI lawyer to find out whether your minimum and/or maximum sentence may be reduced if you take prompt action.

To speak with an experienced DUI lawyer about your rights to refuse to take a blood test, call the Mazza Law Group today.