PENNSYLVANIA LEGAL UPDATE
SUMMER 2001 ISSUE

Insurance companies that sell automobile insurance in Pennsylvania are required to offer all customers the option to add "underinsured" and "uninsured" motorist coverage to their policies.

"Underinsured" motorist coverage is insurance that you purchase from your insurance company to pay for your losses if you are injured by someone who does not have enough liability insurance to pay for all of the injuries you may suffer. "Uninsured" motorist coverage is insurance that you purchase to pay for your own losses if you are injured by an uninsured or a hit-and-run driver.

Even if you do not have an insurance policy yourself, you may be entitled to uninsured and underinsured coverage in the event you are in a car accident. The Pennsylvania Motor Vehicle Financial Responsibility Law defines an "insured" as "a spouse or relative" of a named insured, if the spouse or other relative is "residing in the household of the named insured." Any minor residing in the household in the custody of a household member is also entitled to coverage. Everyone entitled to claim coverage as a household member can also claim uninsured and underinsured benefits if the named insured opted to purchase them.

Pennsylvania courts have clarified the facts and circumstances that make a person a "resident relative" in automobile insurance policies. A person's residence is "a factual place of abode." A residence does not have to be permanent and can simply mean that someone is physically living in the household. For example, a father living in his own home in Pittsburgh was found to be a member of his son's "household" and was entitled to coverage under the son's automobile policy, despite the fact that the son was on military duty in Korea. The father did not own a car and had no automobile insurance coverage. The son owned an insured car, which he garaged at the father's house. Focusing on the facts that the son was only temporarily in the military, that he continued to use the home as his legal address, and that he listed the home as his residence with the insurance company, the court found that the father was a member of the son's household.

In another case, a teenage child who lived in her mother's home and stayed in her father's home "only twice during the entire school year" was not a resident of her father's home for the purpose of determining whether she could collect coverage under his insurance policy. Noting that children who spend significant time in both parents' households can be residents of both households, the court found that the child simply did not maintain a sufficiently significant physical presence in her father's house to merit her having status as an insured.

While Pennsylvania law absolutely requires that all drivers maintain minimal liability coverage, the purchase of underinsured and uninsured motorist coverage is optional. Since many people only purchase minimal liability coverage, and an alarming number of drivers drive without any insurance at all, it is wise to purchase underinsured and uninsured motorist coverage. You should consider reviewing your insurance policy with your agent or your attorney to make sure you that understand your coverage and to check whether you are adequately insured.

A Pennsylvania sales representative quit his job when his draws against commissions were $38,000 more than the commissions he actually earned. In a suit by the corporation to collect the overdraws, the Pennsylvania Supreme Court found that independent sales representatives can sometimes be liable for paying back draws against commissions. Recognizing that large corporate employers sometimes have superior bargaining power in contract signings, the court also observed that many corporate employers are small family-run businesses that may be dealing with very experienced sales representatives. The court declined to adopt any broad rule of law favoring businesses or sales representatives, deciding, instead, that principles of contract law should control legal disputes between sales representatives and businesses.

Where an agreement clearly provides that a sales representative will have to pay back draws in excess of earned commissions, the courts will enforce the agreement. But if there is no mention of the representative's responsibility to reimburse for overdraws, the draws may be treated as salary. Where commission payments will be paid in advance, it is advisable for business owners and sales representatives to carefully negotiate the sales contracts and pay close attention to the contracts' legal language.

The Pennsylvania School Code permits the suspension and the permanent expulsion of public school students. A "suspension" is the exclusion of a pupil from school for a period of from one to ten consecutive school days. An "expulsion" is an exclusion from school for a period exceeding ten school days and may be permanent. Students at risk of suspension or expulsion are entitled to written notice of the charges against them. For suspensions in excess of three days and for all expulsions, students are also entitled to hearings where they have the right to be represented by counsel.

Students must make up examinations and work missed while being disciplined by suspension. During the period prior to the hearing in an expulsion case, the student is entitled to attend school unless his or her presence would constitute a threat to the health, safety, morals, or welfare of others. Any student excluded from school pending an expulsion hearing is entitled to alternative education, which may include home instruction. Where students facing expulsion complete home instruction and also pass final exams, they are entitled to a high school diploma.

School boards have broad authority to determine school discipline. Each school board may adopt and enforce reasonable rules. The school board must publish a code of student conduct identifying all of the offenses that can lead to suspension and expulsion.

Many school districts have developed "zero tolerance" policies regarding the possession of weapons on school property by students. In fact, the School Code itself requires that all Pennsylvania school boards shall expel any student who has a weapon at school, at a school activity, or on a school bus. However, the School Code gives discretion to school superintendents to recommend discipline other than expulsion in weapons cases if the superintendent feels expulsion is not warranted. Recently, a Pennsylvania court found that a Pennsylvania school district's strict zero tolerance weapon possession policy violated the School Code because it did not give the superintendent the opportunity to have any input in the expulsion proceedings.

School boards may expel or suspend students for their conduct off school premises. Where a middle school student designed and posted a website that included his drawing of one of his teachers severely injured and contained lewd comments and references to his willingness to hire a hitman to kill her, his permanent expulsion was upheld on appeal. Even though the student created the website at home and did nothing specific to transmit the offensive material to the school, the court upheld his expulsion because his conduct severely disrupted school discipline and order. The targeted teacher suffered emotional stress, which led to physical illness. Her inability to teach required the scheduling of substitute teachers in her classes.

The school board found that the violent nature of the drawing and language seen by many students who visited the website resulted in "plummeting morale" at the school. Relying on previous cases where students' sale of marijuana to other students off-campus and students' loud harassment of teachers off-campus were found to warrant school discipline, the court held that expulsion can be an appropriate remedy for conduct that takes place off school grounds.

Students under 17 who have been expelled are still subject to the School Code's requirements of compulsory education and are entitled to be educated. The initial responsibility for providing the required education rests with the student's parents or guardian through placement in another school, through tutorial or correspondence study, or through another educational program approved by the district's superintendent. If the parents or guardian are unable to provide for the required education, they must, within 30 days, submit to the school district written evidence so stating. The district then has the responsibility to make some provision for the student's education.

Tucked away in Pennsylvania's agriculture statutes is the Dog Law. In addition to specific provisions regarding dog tags and licenses, the confining of dogs in heat, and the general regulation of kennels, the Dog Law provides a procedure to declare a dog dangerous.

Any person who has been attacked by a dog or whose domestic animals have been killed or injured by a dog without provocation may begin an action to declare the dog dangerous. The action may also be brought by a dog warden or local police officer. The case is heard and the determination is made by a local district justice. A dog may be declared dangerous based on the dog's history, which must include at least one of the following: (a) infliction of severe injury on a human being without provocation, (b) killing or severely injuring a domestic animal without provocation, (c) biting or pursuing a human without provocation, or (d) being used in the commission of a crime.

If a dog is determined by a district justice to be dangerous, its owner must have a proper enclosure to confine the dog and must post his or her premises warning of the presence of a dangerous dog. The warning sign must include a symbol designed to inform children of the danger posed by the dog. Where the owner of a dangerous dog is a minor, the minor's parents are liable for the dog's conduct and must comply with the duties imposed on the owners of dangerous dogs. In addition to properly confining the dog, the owner of a certified dangerous dog must post a $50,000 bond or provide the Commonwealth with on-going confirmation of adequate insurance for at least $50,000. Owners of certified dangerous dogs must notify authorities within 24 hours if the dog is loose, unconfined, dead, sold, or donated, or if the dog has attacked a person or domestic animal. A dangerous dog may not be outside its enclosure unless muzzled and restrained by a substantial chain or leash and under the physical restraint of a responsible person.

When a certified dangerous dog attacks a person or domestic animal, its owner may be convicted of a misdemeanor. The owner of any dog who intentionally, recklessly, or negligently permits the dog to aggressively attack and cause severe injury or death to another person is guilty of a misdemeanor of the first degree. In addition, the dog shall be immediately confiscated by a state dog warden or a police officer, placed in quarantine for the proper length of time, and thereafter humanely killed in an expeditious manner, with the costs of quarantine and destruction to be paid by the dog's owner.

A dog may not be declared dangerous if the injured victim was a trespasser on private property, was tormenting, abusing, or assaulting the dog, or was committing a crime when attacked. The Dog Law forbids townships and cities from banning any specific breeds of dogs and prohibits insurance companies from denying coverage for specific breeds. Townships and cities may enact ordinances that prohibit dog owners from permitting their dogs to run freely. These ordinances are sometimes referred to as "leash laws."

It is unlawful to poison a dog or to leave poison in any place, even on your own premises, where it may be easily found and eaten by dogs. If you feel threatened by a dangerous dog, give the dog's owner written notice of your concerns. Consider commencing an action under the Dog Law. Even if the dog's conduct does not meet the standard for dangerous dogs, its owner may still be responsible for injuries caused by the dog. Putting the owner on notice of your concerns is the first step to proving that he or she knew or should have known of the dog's dangerous tendencies.

Pennsylvania law requires parents to support their children until the children are 18 or have graduated from high school, whichever occurs later. Children who graduate from high school while 17 are still entitled to support after high school. Conversely, children who turn 18 while enrolled in high school are not entitled to support after they graduate.

What happens to children who drop out of school? If a child is found by a judge to be "emancipated," his or her parents are no longer obliged to support the child. The child's age, marital status, ability to support himself or herself, and desire to live independently of the custodial parents are all taken into consideration by the courts. Each case is considered separately, and the detailed facts of the child's circumstances and lifestyle are relevant. The most important facts on which the courts focus relate to the child's ability to be self-supporting. If the child is unemployed and does not have a stable, regular, independent household of his or her own, the courts will be reluctant to find the child emancipated, even if the child has dropped out of school and is acting independently. In the case of divorced parents, as long as the custodial parent continues to make efforts to care for and support the child, the noncustodial parent will be required to continue to make support payments.

If you are injured in an accident, photograph or videotape your injuries as soon as possible. A graphic picture can be very helpful when talking to an insurance adjuster or a jury.