WINTER 2015
Ransomware: Is Your Data Safe?
Where are We on Mandatory Sentences?
How can I recommend a charity without recommending a charity?
Talk to your clients about giving options at Berks County Community Foundation. It’s a delicate dilemma. You want to discuss the many benefits of charitable giving with your clients, but you want to avoid recommending specific charitable causes or organizations. Fortunately, there’s a simple solution. Berks County Community Foundation is a single, trusted vehicle your clients can use to address issues they care about most, while gaining maximum tax benefit under state and federal law. We offer a variety of giving options – including donating to funds that benefit specific causes or setting up a charitable fund in your client’s name. No matter the option they select, we can help you help your clients achieve their charitable goals.
237 Court Street • Reading, PA 19601 • 610-685-2223 • www.bccf.org
WINTER 2015
The Official Publication of the Berks County Bar Association
BOARD OF DIRECTORS
Jesse L. Pleet, President
Jill Gehman Koestel, President-Elect Kurt Althouse, Vice President Lisa A. Siciliano, Secretary Justin D. Bodor, Treasurer Elizabeth A Magovern, Director Honorable Timothy J. Rowley, Director George A. Gonzalez, Director Peter F. Schuchman, Director Mary K. Bernosky, Director Michael A. Setley, Director G. Thompson Bell, III, Past President Thad M. Gelsinger, President YLS
BAR ASSOCIATION STAFF
DONALD f. SMITH, JR., Esquire, Executive Director andrea j. stamm, Lawyer Referral/Secretary Karen A. Loeper, Law Journal Secretary Paula j. ziegler, Communications Manager RAINY LEONOR-LAKE, Community Outreach Coordinator ROARKE ASTON, Law Journal Editor JOHN E. REIGLE, Law Journal Assistant Editor Matthew M. Mayer, Barrister Editor
Please submit materials or comments to: Berks County Bar Association 544 Court Street, P.O. Box 1058 Reading, PA 19603-1058 Phone: 610.375.4591 Fax: 610.373.0256 Email: berksbar@berskbar.org www.berksbar.org
Thank You
Our thanks are extended to the numerous people who have contributed to The Berks Barrister. Your time, energy and efforts are sincerely appreciated.
P U B L I S H E D
B Y
Reading, PA | 610.685.0914 x201 hoffmannpublishing.com For advertising information contact Tracy Hoffmann at tracy@hoffmannpublishing.com
3
The Tale of Mulligan
5
The Curious Case of TINCHER v. OMEGA FLEX, INC.
7
KEEPING UP Ways to Stay Up to Date with Caselaw
16
2014 Admission Ceremony and Reception
20
Where are We on Mandatory Sentences?
22
Holiday Reception
24
Drafting POAs
26 Spoken from the Heart 28
Law Foundation of Berks 2014 Annual Giving Campaign
30
Holiday Lunch Benefiting Law Foundation Was a Good Time
Departments: 1 President’s Message
14 Spotlight on New Members
8 Poetry
17 Restaurant Review
10 Book Review
18 Miscellaneous Docket
12 Technology - Frankly Speaking
A community bank. Funding community projects.
Sounds like a good formula to us. Offering a wide variety of business banking services.
1-888-238-3330 | www.VISTBank.com Member FDIC
Care Reform offers an opportunity for “Health employers to rethink how health care benefits should be designed and delivered. ” – Mark Kunkle
We’re experts at benefits consulting. We’ll perform a Health Care Reform Readiness Analysis for your organization. • We’ll review your existing benefit programs and determine which will be affected by the health care reform provisions now and in the future. • We’ll determine the financial impact of healthcare reform to your organization. We’ll steer you in the right direction and help you implement your company’s health care reform strategy.
There will be dramatic changes in the future of the employee benefits landscape. Is your company prepared and complying with new regulations? What do you need to know? What plan do you have in place? Are you heading in the right direction? Contact us today. We’ve gained the confidence of over 450 local employers.
610-685-1790 | www.pkbenefits.com | 999 Berkshire Blvd., Wyomissing
LEADERSHIP | SUPPORT | SOLUTIONS
President’s Message Jesse L. Pleet, Esquire, 2015 President
EVERYONE LIKES A WINNER No matter where you are throughout your career, your membership in the Berks County Bar Association (“BCBA”) is a unique source for development, recognition, and service. Our professional lives prosper from the sense of community that the BCBA provides. Likewise, our community of colleagues, clients, judges, and the public we serve are enriched by our sustained efforts. We have created a positive legacy that will endure beyond our personal careers. We have been successful in providing programs for professional development including a wide variety of Mandatory Continuing Legal Education seminars and fostering strong ties with our Berks County state and federal judiciary. Our numerous gatherings allow for networking with colleagues. This often leads to referral source development for new clients. Our committees and practice group sections offer a fountain of opportunities to stay current with the law, address evolving trends, utilize the latest technology, and learn the “best practices” to serve our clients and the community we serve. One of our flagship programs, melding together these goals, has been our annual Bench-Bar Conference. This conclave has cross-appeal to both our lawyers and the numerous non-lawyer sponsors supporting us in our practice areas. The “Bench-Bar” has been a sell-out in recent years, attesting to its utility and popularity. This year, we are organizing a new, special program tailored for our Assistant District Attorneys, Assistant Public Defenders, and private criminal defense counsel to address the unique questions of ethics in the criminal practice. This is very exciting because we are collaborating with the Office of Disciplinary Counsel for the Supreme Court of Pennsylvania to do so in a first-of-its-kind program and format. This will address an unintended void that the
plenary session for malpractice avoidance, heretofore sponsored by our professional liability insurance carriers, had created when presenting a topic of marginal interest to our BCBA government members. Kudos to BCBA Past President Jill Scheidt who, as President in 2011, successfully advocated on behalf of District Attorney John Adams and Public Defender Glenn Welsh with the County Commissioners to have the County pay the BCBA membership dues for the members of the DA and PD offices. At the recent Latino Chamber of Commerce Gala on January 9, 2015 honoring Don Smith as the Chamber’s “2014 Community Partner of the Year,” Commissioner Leinbach was in attendance. I thanked him for the County Commissioners’ ongoing consideration of our BCBA, prosecutors, and public defenders. We enjoy his enthusiastic support. Continued on page 2
President Pleet and Executive Director Smith proudly display the “Community Partner of the Year” award received from the Berks County Latino Chamber of Commerce during its Gala in January.
Berks Barrister | 1
EVERYONE LIKES A WINNER Continued from page 1
Our upcoming Bench-Bar program for ethics will enable our government attorneys to substantially meet the new two-credit ethics requirement imposed upon all of us by the Pennsylvania Supreme Court. This reinforces the win-win strategy by the County saving taxpayer dollars from having to send those attorneys elsewhere to obtain expensive ethics training while, at the same time, the BCBA has enjoyed an expanded membership base to include our colleagues in this vital practice group. Some of our members have held important positions in the Pennsylvania Bar Association (“PBA”) governance and the PBA committee structure. Several examples include the late Honorable Thomas M. Golden, who was President of the PBA in 2003/2004 before ascending to the federal bench as a U.S. District Judge for the Eastern District of Pennsylvania. Terry Weiler was President of the PBA Conference of County Bar Leaders (“CCBL”) in 2008 and continues to serve the PBA as a Zone Governor. Jill Scheidt is on the Board of CCBL and in its leadership track to be President of the CCBL in several years. Jill has also been a longtime, very active member of the PBA’s Unauthorized Practice of Law Committee. Heidi Masano was reappointed last June to be Chairman of the prestigious PBA Judicial Independence Committee. In addition, Heidi devotes time to the PBA’s Insurance Fund and Trust Fund Board of Trustees, as its Treasurer, and as Vice-Chairman of the Judicial Evaluation Commission. Our own “Bar Tender” Donald F. Smith, Jr., Executive Director of the BCBA, was an accomplished litigator before embracing his administrator opportunities for us. And look at what Don has achieved! Among his credentials is having served as Chair of the Board from 2008 to 2011 of MidPenn Legal Services (“MidPenn”). Under Don’s tutelage, MidPenn navigated shrinking budgets and was successful in bringing the first Latino attorney to MidPenn’s Reading office. Last year Don forged new partnerships for the BCBA members to fulfill their pro bono obligations by supplementing MidPenn service with alternative options assisting seniors at Berks Encore or volunteering at Berks Women in Crisis. A former Chair of the PBA Workers’ Compensation Law Section and PBI work comp instructor, Don now sits on the Board of Directors for the Pennsylvania Bar Institute. What do Tom, Terry, Jill, Heidi, and Don have in common? They have all been past presidents of the BCBA. They have served, not just for us, but to enhance our wider legal community with knowledge, experience, dedication, and commitment. They have been our role models. Their enthusiasm is contagious. Such efforts by our members have placed Berks County “on the map” when it comes to peer recognition from around the Commonwealth for our popular, well-managed bar association. We are graced with so many members who have enthusiastically embraced the ideals of our profession and
2 | Berks Barrister
supported this association. We have so much more that we can accomplish built on a legacy of service to the profession, access to justice, and outreach to our community. This is our responsibility. This is our privilege. Ours is a license to practice that is difficult to obtain and challenging to maintain. Vigilance is required to keep up with the pace of the law. How fortunate we are to be among a local, committed group of lawyers who recognize the significance of our profession in civilized society and how we affect people’s lives—every day.
Everyone likes a winner, and being part of a winning team. This is the concept of being part of something bigger than yourself. The BCBA creates opportunities to make an impact which launch the platform for the next generation. Ours is an important responsibility to ensure that our system of justice in Berks County endures. It is with pride and humility that I look forward to my tenure as president of this fine association.
Th e Tale of Mulligan By Clemson N. Page, Jr., Esquire
“CLEMMIE: You got me into this...” So read the inscription Frank Mulligan penned into my copy of his debut novel, Spanish Market, subtitled The Twice-Told Tale of Pepe Ramos. The book chronicles the adventures of one Pepe ( José) Ramos, as he plots and plans to foil the scheme of Tall Joey Carlucci, an “alleged” mob kingpin1 from the Pennsylvania Anthracite Region, to acquire Pepe’s Spanish market in Glenside, Wilson County, Pennsylvania. Pepe, a Cuban immigrant, served in the ill-starred Brigade 2506 in the equally ill-starred Bay of Pigs invasion on April 17, 1961, under the auspices of the U.S. Central Intelligence Agency. Brigade 2506 was the all-Cuban combat unit which launched from Guatemala; Fidel Castro’s forces accepted the Brigade’s surrender three days after the invaders landed on Cuban soil. Captured Brigade members, including Pepe Ramos, spent several years in a Cuban prison on the Isle of Pines (now the Isla de Juventud, Isle of Youth), Cuba’s second-largest island. After Pepe secures his release from the Isle of Pines, he goes on a fund-raising campaign to ransom his former comrades, thereby gaining a powerful and well-trained cadre of supporters in his effort to thwart Tall Joey Carlucci. And if you want to know anything more, you’ll just have to read the book. Our colleague and former Bar Association
Francis M. Mulligan
President Francis M. Mulligan collects stories the way a honeybee collects pollen – as anyone who reads this journal or the “War Stories” published in the Pennsylvania Lawyer can attest. Frank and I were chatting over cocktails at a Bar function several years ago, when I happened to let drop that I had literary ambitions and tried to practice them at every opportunity. He perked right up and let drop that he did, too. I mentioned that I’m part of a loosely-organized gang of storytellers, poets, novelists, essayists and wordsmiths who meet Saturday mornings, to share and critique each other’s work. Depending on whom you ask, the group calls itself either “Writers Without Borders”2 or “The Saturday Scribblers.” Not long after the aforesaid cocktail encounter, Frank started showing up at our weekly meetings, and displaying an enviable collection of stories – set in places as varied as the Berlin Technical University in World War II to Sofia, Bulgaria to the Berlin Water Works to the bayous of Louisiana to any number of places in between. continued on next page
Berks Barrister | 3
Th e Tale of Mulligan Continued from page 3
God writes straight with crooked lines, says the anonymous Spanish epigram which launches Spanish Market. I remember as we were workshopping Frank’s manuscript in those Saturday morning sessions being often befuddled at the apparent “crookedness” of Frank’s narrative. Characters seemed to pop out of nowhere. The story went off on tangents that seemed to make no sense. One minute, it seemed, we were in the Gateway Diner in New Jersey, and the next we were in Betty Vega’s fish market in Key West. Others expressed the same reaction. Critiques centered around a more or less common observation that “perhaps all this would be easier to follow on the printed page.” And I’m happy to say that the product which emerged from all that hashing and rehashing justified the exercise handsomely. By the way, I know there are other members of our Bar who believe the written word can be a tool for things other than pleadings, motions, briefs, etc. If any of you have dabbled in the works of the likes of John Grisham, Scott Turow, Lisa Scottoline,
Let our family
and other literary lawyers (or not), and if you feel so inclined, you’d be welcome to drop in on one of our Saturday morning gatherings. If you feel further so inclined, bring some of your own work. Or, just sit in and have a listen. We meet at 10:00 A.M. in the Berks Genealogical Society library on the fourth floor of the GoggleWorks at the foot of Washington Street. Editor’s Note: Clemson N. Page, Jr., Esquire, is a member of the Barrister Editorial Committee and author of Up Home Book One: Stedman 1903-1909. We anxiously await the second book of the planned trilogy. When I worked in the newspaper business in Philadelphia several eons ago, writers were warned always to refer to mob kingpins as “alleged” – or else. 1
To signify that we used to meet at the Borders Bookstore in Wyomissing, until it closed.
2
SECURE
your family
“ ca “I ccan n he help!” Full Coope Cooperation with all Licensees
The area’s leading residential & commercial security services company.
100’s ’’s o off Com Commercial Properties... www.JimAdamsNow.com RANKED #1 of ALL Commercial RE/MAX agents in PA for 2013
Visit our website!
Jim Adams
Masters in Commercial Real Estate, CNE, Master Municipal Planner, e-PRO Web 2.0 Cert. Ranked #2 of 2,861 RE/MAX agents PA/DELAWARE-1st Qtr 2013
610-678-9065
JAdams@JimAdamsNow.com
610.372.8872 • SAHinc.com
50 South Museum Rd., Reading, PA 19607
4 | Berks Barrister
powered by PA#008492
RE/MAX of Reading 610.670.2770 x 3157
1290 Broadcasting Road, Wyomissing, PA 19610
THE CURIOUS CASE OF TINCHER v. OMEGA FLEX, INC. By John J. Speicher, Esquire
Being a plaintiff ’s counsel, I have normally not been thrilled when I would read an opinion authored by Chief Justice Castille or Justice Saylor dealing with a personal injury case. How many Motor Vehicle Financial Responsibility Act decisions from the High Court have started with: “We are mindful of the intent of the legislature to implement cost saving measures…”? It does not take a fortune teller to predict that such an opinion would not bode well for plaintiffs.
When I saw that the Supreme Court was taking on strict liability and the Restatement Second of Torts, Section 402A, I fully expected a complete overturning of the law in favor of adopting the Restatement Third of Torts. After all, this change would be popular with big businesses and the insurance companies operating in Pennsylvania. Business owners who have allegedly suffered so long at the hands of out of control juries could now litigate on a more equal playing field. Surely, the High Court would come to the rescue of the business community and dispose of the Restatement Second of Torts, once and for all. What we got, however, was not the anticipated repudiation of the Restatement Second of Torts. Instead, the Court gave us a strange hybrid that supposedly keeps the Restatement Second in place, but alters its essential principles. With the decision
of Tincher v Omega Flex, Inc., 2014 W.L. 6474923, the 1978 decision of Azzarello v. Black Brothers, Co., 391 A.2d 1020 (1978), was overturned and with it new rules were created. But, curiously, the essence of the Restatement Second remains in place. A manufacturer is still the guarantor of its product’s safety. Pennsylvania law under Azzarello and a host of other notable cases, including Burkebile v. Brantley Helicopter Corp., 337 A.2d 893 (Pa. 1975), had required that a plaintiff prove that a product was defective if it lacked any element necessary to make it safe for its intended purpose, or contained any element that made it unsafe for its intended use. This rule applied to manufacturers of a product, as well as any distributor in the chain of commerce. continued on next page
Berks Barrister | 5
THE CURIOUS CASE OF TINCHER v. OMEGA FLEX, INC. Continued from page 5
These cases, however, were never simple. The defense of “assumption of risk” exists to defeat a plaintiff where the jury determines that the plaintiff knew of the danger, appreciated the significance of the danger, and yet chose to confront the danger. It is the judicial equivalent of knowingly sticking one’s head in the mouth of a lion. Unlike comparative negligence where a jury must find the plaintiff to be 51% at fault to defeat recovery, once assumption of risk is found, the plaintiff loses. The Restatement Third would have allowed defendants to introduce elements of foreseeability of product risk and whether alternative safer designs were available at the time the product was made. Assumption of risk was still available as another landmine for plaintiffs. Under Tincher, the plaintiff can establish a defect by showing that the danger of the product was unknowable and unacceptable to the average consumer or that a reasonable person would conclude that the probability and seriousness of harm outweighs the economic burdens placed on the
AttornEy DiSCiplinAry AnD EthiCS mAttErS StAtEWiDE pEnnSylVAniA mAttErS no ChArGE For initiAl ConSUltAtion
Representation, consultation and expert testimony in disciplinary matters and matters involving ethical issues, bar admissions and the Rules of Professional Conduct
James C. Schwartzman, Esq.
• Member of the Supreme Court of Pennsylvania Judicial Conduct Board • Former Chairman, Disciplinary Board of the Supreme Court of PA • Former Chairman, Continuing Legal Education Board of the Supreme Court of PA • Former Chairman, Supreme Court of PA Interest on Lawyers Trust Account Board • Former Federal Prosecutor • Selected by his peers as one of the top 100 Super Lawyers in PA and the top 100 Super Lawyers in Philadelphia • Named by his peers as Best Lawyers in America 2015 Philadelphia Ethics and Professional Responsibility Law “Lawyer of the Year,” and in Plaintiffs and Defendants Legal Malpractice Law 1818 Market Street, 29th Floor • Philadelphia, PA 19103 (215) 751-2863
6 | Berks Barrister
manufacturer to take precautions to make the product safe. Each theory has significant differences in the elements that must be established for a plaintiff to prove her case. But, overall, plaintiffs are much better off with Tincher than if the Court had adopted the Third Restatement. With the new law, jury instructions will need to be written to cover the changes. Appeals will no doubt abound as lower courts struggle to create changes in jury charges consistent with the new law. Meanwhile, the Federal Court in the Third Circuit has been applying the Restatement Third, “predicting” that the Pennsylvania Supreme Court would do so. The Third Circuit has never followed Pennsylvania law too closely in product cases, so one wonders if it will do so now that the Supreme Court has provided clear guidance to the Federal Court on how it feels about the Restatement Third. One commentator has referred to the decision as creating a “wild, wild west” of products liability law. He may not be far off the mark. If you seriously want to handle a products liability case be prepared to spend many hours studying Tincher. It is a very long opinion! Be warned that you will be venturing into an area of the law that always was confusing, but is now more so thanks to the Supreme Court and Tincher. Editor’s Note: John J. Speicher, Esquire, a past president of the Berks County Bar Association, is a shareholder with Leisawitz Heller, where he considers himself “an ol’ country lawyer trying to help the common folk survive another day.”
KEEPING UP
Ways to Stay Up to Date with Caselaw By George M. Lutz, Esquire
No lawyer wants to be blindsided by a caselaw development that he or she wasn’t aware of. So, how does a professional keep up with the relevant opinions issued by the courts of professional interest? Here are some examples: Justia.com Justia.com is a free service that provides opinion summaries by jurisdiction, for all federal appellate courts and all state supreme courts. It also provides weekly opinion summaries by practice area. The summaries are in the form of “newsletters” delivered to your email address. By way of example, I subscribe to the 14 federal jurisdictions (the U.S. Supreme Court, the 1st through 11th Circuits, the D.C. Circuit, and the Federal Circuit Court of Appeals) and the Pennsylvania Supreme Court, and to the weekly summaries for bankruptcy and consumer law. I have established a non-law firm, non-personal email account to which those newsletters are directed. I receive between 4 to 10 emails per day, total, at that email address, because not all federal districts publish a case each day. Here is the summary contained in the newsletter/email I received on September 3, 2014 for the Ninth Circuit Court of Appeals: Summaries for September 3, 2014 • Rosenbloom v. Pyott Business Law, Corporate Compliance, Securities Law
None of those subjects are of professional interest to me, so after a brief three or four second scan of the email, I deleted it. In this manner, I digest the daily emails quickly (the 9th Circuit email above was one of 9 emails I received from Justia. com on September 3rd, so it took maybe a minute to quickly run through them). When a bankruptcy or consumer topic shows up, I click on the link to read the case, or save it for later review. A free DropBox, Google Drive, or similar cloud-based place to park copies of opinions allows you to review and save relevant caselaw from any of your mobile devices, or your office computer, at any time. Subscribing to the 14 federal jurisdictions as well as the weekly subject matter summaries is somewhat redundant – I see a bankruptcy case when, say, the 7th Circuit publishes it, and I see it again in the weekly subject matter summary. However, being the erudite, Renaissance-man type of person I am, I like to keep an eye on Federal cases of all types, and I do end up saving the occasional case out of my practice area, in order to keep current and have something to talk about at Bar Association happy hours.
FindLaw.com FindLaw.com is a division of Thomson Reuters (the parent of WestLaw). In a similar fashion to Justia.com, FindLaw.com provides free summaries of the Federal circuits as well as the U.S. Supreme Court, and a subject matter summary. FindLaw also publishes a “Modern Practice Newsletter,” a weekly newsletter covering a wide range of topics. The August 28th newsletter covered the following topics:
• El Dorado Estates v. City of Fillmore
• Is Not Understanding e-Discovery Unethical?
Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
• Executors to Get Access to Testators’ Digital Assets in Del.
• Levitt v. Yelp! Inc.
• Nastygrams to Opposing Counsel: How Far Is Too Far? • 5 Ways to Maximize Your Billable Hours (Without Being Unethical) continued on page 9
Business Law, Internet Law
Berks Barrister | 7
Passage North By William W. Runyeon, Esquire
The weakness of maps and figures as a frame of reference is fair to an understanding of the value of the last fields of autumn, the great ring of arboreal forest, the vast tundra, the endless lakes; and that world barely thawed before its margins are again encroached upon by the hard edge of ice, and, finally, the world of the arctic: on a good day, the ice and endless sky are borne by heart and mind, as a blue, stark in the cold that rises and falls but never leaves, as the nights advance and days retreat to our shelter of memory. The sharp winds blow, and the night has its season: and the fields of wheat, alive, remembered, beyond the eye’s reach, have receded also, but never beyond recall, as they are the life by which we come to the North: the place of beginning, the lifeblood of the journey; our way of accepting its urgency in a world where humanity survives as seasonal visitor, and summers of temporary abundance fade into the dark and cold of the journey and offer opening to our life beyond habitation, where life itself starts with welcome
8 | Berks Barrister
first to the forest, then to the tundra, falling to the endless ice beyond, the frozen sea, the cold unending, the seasons of darkness, and of light. The howling wind, the frozen night, have attraction, even a comfort, beyond experience. The urge North can no more be lost in the machinery of modern harvest and storage than ever it could be in the distant work of Pharaoh’s servants filling their ancient granaries, long since turned to dust, and long remembered. Beyond history, in cold and silence, we brush against the world before creation. And, after a time, the shocking feel of a place invulnerable to cultivation yields to very different awareness. Its underlying beauty can in no way draw from humankind, arising from a stillness so deep and distant that its light may live within the cold of any darkness; and any truth, if truth there be, arrives into life only from the same imponderable horizon, and unanswerable origins.
KEEPING UP Ways to Stay Up to Date with Caselaw
Continued from page 7
• ‘The Simpsons’: 5 Best Courtroom Scenes (and Lessons for Lawyers) • 5 Tips for Becoming a Business Travel Ninja • 3 Ways to Get Practice Experience Straight Out of School • 5 Tips to Earthquake-Proof Your Law Office • The Jargon-Free Basics of Wireless Network Security for Lawyers • 5 Simple Word-Processing Programs That May Work Better for You
• Google Domains Review, Plus How to Get New Top-Level Domains • Windows 9 ‘Threshold’ Set for Public Beta Next Month As you can see, if you have no life whatsoever outside the office, a FindLaw subscription is a must have.
Google Scholar While Justia.com and FindLaw.com are great for keeping up with national and statewide caselaw developments, Google Scholar allows a much more specific review. For example, suppose you are interested in knowing about all opinions issued by the federal and bankruptcy courts in the 3rd Circuit that mention the bankruptcy means test (and who isn’t?). Go to scholar.google.com, select “Case law” below the search box, select “Select courts,” then click on “3rd Circuit.” Clicking “Done” on the bottom right of the page brings you back to the search box, and searches are now limited to the selected courts. Typing “bankruptcy” and “means test’” returned nine 3rd Circuit opinions on the date I did the search – September 5, 2014. At the bottom of the page, you will see an envelope icon with “Create alert” to its right. That brings you to the Create Alert page, where you can designate an email address so that going forward, you will receive an email each time Google Scholar loads a 3rd Circuit case meeting that criteria. Google Scholar also covers the federal district and bankruptcy courts; Justia and FindLaw do not. Finally, you can also use Google Scholar to notify you whenever a particular judge issues an opinion. Limiting the courts to those in the 3rd Circuit, searching for either “Fehling” or “Schmehl,” and using the Create Alert feature generates email alerts for any 3rd Circuit case containing the words “Fehling” or “Schmehl.” That usually means that Google Scholar has listed an opinion authored by those judges, although you would also receive an email if a 3rd Circuit court simply contained those names as parties or some entity unrelated to our local federal judges.
Casemaker Digest Casemaker, the new offering for members of the Pennsylvania Bar Association, has a digest feature that allows a user to stay current. The feature is summarized at the top of the Casemaker Digest (which is to be distinguished from Casemaster itself ) homepage: This is an exciting new service which provides a first look into the most recent decisions published by the courts. All important cases are summarized in one convenient location for your use within days of their publication. CASEMAKER Digest is a must for any attorney who wants to know the latest opinions being issued by the court. (“Exciting?” Well, yes, I was beside myself excited when I read that intro.) At any rate, the procedure is the same as Google Scholar: enter the jurisdiction(s) you want to monitor, then your search terms and an email address, then wait for your inbox to fill up with the relevant up to date caselaw. Know of any others? Let me know at gml@cdllawoffice. com and perhaps our Executive Director will allow me to share the wealth in a future edition of The Berks Barrister. Executive Director’s Note: George M. Lutz, Esquire, is a principal in the Wyomissing law firm of Case, DiGiamberardino & Lutz, P.C. In addition to being current on developments in bankruptcy law, George is very talented at devising creative crossword puzzles.
REAL ESTATE APPRAISAL SERVICES Estate | Assessment Appeal | Market Value | Expert Court Testimony Commercial | Residential | Farm | Land 32 Years Experience
Thomas J. Bellairs PA State Certified Appraiser
610-374-2106 tom@bellairsrealestate.com
940 Penn Ave. Wyomissing, PA
Berks Barrister | 9
Book Review
“Scalia: A Court of One” By Bruce Allen Murphy Reviewed by David W. Crossett, Esquire
After a brief private practice followed by service in the Office of Legal Counsel to the Department of Justice, Antonin Scalia was a forty-six-yearold professor at the University of Chicago when he turned down an appointment to the Court of Appeals for the Seventh Circuit. Gutsy. Appointed to the Court of Appeals for the D.C. Circuit in 1982, it was only four years later that the full Senate approved Scalia’s nomination to the Supreme Court of the United States by an astonishing 98-0 vote. Not a light read by any means, the bulk of Bruce Allen Murphy’s biography of Justice Scalia is consumed with reviewing the most notable of his 800 judicial opinions. For those who actually read their Constitutional Law textbook, watch for déjà vu. In fact, aside from the initial portion on Scalia’s early life, the book reads much like a caselaw text minus the guise of neutrality. The reader is quickly left with no doubt that Murphy hopes for Scalia to be seen in the worst possible light. Boldly announced in the prologue is Murphy’s thesis that Scalia’s unwavering adherence to the traditional Roman Catholic Faith defines him. This refrain is incessant throughout. No doubt about it, Murphy proves his point: Scalia is a committed Catholic. When it gets right down to it, however, the strongest connection that Murphy ties between Scalia’s faith and judicial practice is that Scalia’s historically-based dictionary
10 | Berks Barrister
technique for interpreting the Constitution is similar to Catholicism’s literal reading of biblical text and its use of historical sources to interpret Scripture. So what? The Protestant and Jewish hermeneutic is the same at that level of generality. And, if “fixed textual meaning” is a sound and accepted hermeneutic for religious text, why shouldn’t it also be applied to Constitutional text? Murphy provides no reason to employ one method of hermeneutics for religious texts and another for legal texts. Guilt by association seems to be the more likely purpose behind Murphy’s attempt to brand Scalia as a “Catholic Justice” and his attempt to tie Scalia to Opus Dei through repetition of discredited rumors of affiliation. On this score, Murphy is weighed and found wanting. Apparently obsessed with exposing every possible Scalia foible—especially those ferreted out from informal question and answer sessions over the past three decades—Murphy boldly asserts that Scalia has embarrassed the judiciary by his extrajudicial comments. He goes as far as to name Scalia the “poster child for misbehavior” on the Court. On the score that Scalia has indeed been prolific in speech and writing off the bench in his customary bold style: point taken. On Murphy’s charge of “misbehavior” (whatever that is), Murphy drags his readers through endless pages only to prove that Scalia’s comments off the bench are unsurprisingly similar to the outspoken
style of those made from the bench. Throughout the book, Murphy charges (but falls far short of proving) that Scalia is “adept in manipulating his originalist theory to reach the result that he sought.” Assuming, arguendo, that a reader is independently convinced of the charge, one wonders whether living constitutionalist jurists aren’t guilty of the same—and for them, unabashedly so. For a living constitutionalist to assert his personallypreferred sense of evolved decency is part and parcel of a philosophy that adapts “to reach the result that he sought.” In contrast, at least Scalia’s originalism purports to be a theory of interpretation that is subject to objective constraint, and thus avoids pure outcome-driven law. In the end, then, Murphy’s charge falls short of discrediting originalism and ends up indicting those who trumpet a living Constitution. The alternate charge approvingly leveled at Scalia by Murphy is that the meaning of the text from the ratification period cannot reliably be determined from historical evidence. Murphy suggests that conflicting historical evidence of textual meaning is a coup de grâce to Constitutional originalism. This attempt to assign debilitating uncertainty on the meaning of words used just over 200 years ago is grossly exaggerated. It is a fact that our public institutions of
education continue to robustly study classic literature—hardly a worthy pursuit if meaning is unknowable after 200 years. Or, what about religious Americans who build their lives around the meaning of religious texts that are thousands of years old? If such texts have a knowable meaning, based on the exponentially larger body of historical evidence surrounding Constitutional enactments, it follows a fortiori that the Constitution does also. Notice could be taken that the judiciary is uniquely designed as an adversarial system in order precisely to permit the judges to weigh the evidence and make a determination based on “conflicting historical evidence.” Murphy and critics will need to rest opposition to originalism on something more, and will need to suggest a viable and persuasive alternative. Murphy’s attempts to undermine originalism with the charge that by it, “morally sustainable claims of equality … [are wrongly] held captive to the extraordinary obstacles of Article V (Constructional Amendment) or subject to the partial and incomplete understandings of 1789 or 1869.” His unstated premise is that we can’t keep a means of understanding text when it leads to an undesirable result. This nicely illustrates the crux of the clash in the debate between Scalia and judicial pragmatists. Scalia would say that change comes through democratic amendment, not judicial modification of sound hermeneutics. Murphy’s persuasion responds that he doesn’t think the result is equitable, and the moment he is appointed he will make sure to fix what the framers and his elected legislature didn’t. The critic of originalism shows his true colors as a would-be “legislature of one.” Another provocative but unfounded charge by Murphy is that Scalia has “verbally beat[en] up Kennedy,” “thrashed” Sotomayor, and leveled “ad hominem charges” against O’Connor. In response, Scalia claims “I attack ideas, I don’t attack people. Some very good people have some very bad ideas. And if you can’t separate the two you’ve got to get another day job. You don’t want to be a judge, at least not on a multimember panel.” The weakness of Murphy’s claim is that he fails to prove that any personal attacks exist. The ad hominem attack that Murphy claims occurred against O’Connor is Scalia’s statement in dissent that O’Connor’s majority opinion is “irrational”—this is hardly a personal attack. Does Scalia attack ideas with a biting and forceful pen? Absolutely. And it is certain that he gives no quarter to ideas he perceives as unsound. The irony is that it is Murphy who attempts to discredit Scalia’s judicial philosophy based on religion and personal style—the very hallmarks of ad hominem attacks! If Scalia is correct that the ideas he is attacking are unsound, and if his sharp pen has any effect in relegating such ideas to the ash heap of history, his pointed stylistic preference will be vindicated. Perhaps the most baffling of Murphy’s arguments is his attempt to fault Scalia for “going his own way, and brooking no compromise.” He claims of Scalia that “[i]t is inconceivable to believe that he will ever compromise his views in order to gain or retain the votes of his colleagues.” In the sense that Scalia has refused to join the opinions of others that are contrary to his own belief, it is undoubtedly true that he has not compromised. But where is the fault in this? What would Murphy have Scalia do: Achieve compromise by brokering a deal with Kennedy
Our Customer Service Specialists will make your life easier. Experienced Professionals providing personal service in IOLTA, Escrow and Estate Accounts
First Priority Bank
Smart money banks here.®
BRANCH OFFICES IN BERKS, BUCKS, CHESTER & MONTGOMERY COUNTIES 610-898-7700 • www.FPBK.com We’re a proud partner of the Berks County Bar Association.
that Scalia would vote with him for Constitutional protection of sexual orientation in exchange for Kennedy’s vote against abortion? Murphy’s charge would fare better if the oath was to “create consensus” rather than to “support and defend the Constitution.” Regardless, given the ability of any justice to agree only in the result or to join only certain parts of the stated rationale, it is not at all clear how Scalia’s boldly-expressed rationale is responsible for how others vote. In a surprising judgment, Murphy claims that “Scalia ignored the politics of his [judicial] position, and in doing so risked the most precious thing in his quest—judicial votes.” This criticism, however, assumes that gathering immediate judicial votes is actually the “most precious” thing for Scalia. Either Scalia is remarkably dense in believing that his barbed opinions were the way to obtain judicial votes, or Murphy is wrong to believe that the most precious thing in Scalia’s quest was the pragmatic short-term quid pro quo compromise among existing justices. Of course, it is the latter. Not even Murphy doubts that “Scalia has molded the conversation on the Court, making originalism a theory that must be addressed. Through his solo dissents and provocative extrajudicial speeches, he has laid the groundwork for a future majority to follow his views.” Notwithstanding Murphy’s attempt to discredit at every turn, Scalia’s enduring legacy will be the voice he gave to originalism, to the next generation of lawyers and judges persuaded that his painstakingly articulated hermeneutic is sound and that a “legislature of one” must be avoided. This result would justify a Court of one!
Berks Barrister | 11
TECHNOLOGY FRANKLY SPEAKING
Ransomware: Is Your Data Safe? By Jeffrey A. Franklin, Esquire
The law firm Florrick Agos & Lockhart was attacked by ransomware. Diane clicked on a link in an e-mail apparently from her partner, Alicia, when suddenly, all the computers in the office went dark and a message popped up saying that Diane had 72 hours to pay $50,000 or else all of the files in the entire firm — on phones, laptops and desktop computers — would be deleted. Every computer was to be frozen until the payment was made. They can’t go to the cops because word will leak, and then the entire legal community will know the firm’s vulnerability. The partners agree to quickly pay up and send the $50,000, because even though they don’t want to fund criminals, they feel they have no choice in the matter. To their disadvantage, the law firm had all of its equipment and files on one network, no outside backups were available, and they were due in court in one hour. They were forced to pay the demanded $50,000 due to their circumstances and their lack of preparedness. Fans of the television show “The Good Wife” will recognize this episode from last Fall. You might be thinking, Jeff, this is the stuff of television and movies, not reality. Lawyer’s Mutual of North Carolina issued a malpractice alert in November 2014 due to several North Carolina law firms falling victim to ransomware. Similarly, The Law Society of British Columbia has issued alerts to its lawyers following at least three member law firms falling victim to ransomware. On December 29, 2014, law firm staff
12 | Berks Barrister
showed up for work and notices appeared on their computers stating “Your files were encrypted and locked with RSA2048 key.” The firm was advised to contact an address within 12 hours and pay an extortion fee to have the files unlocked or the fee would double and eventually the files would be “irrevocably broken” after 30 days. This firm decided not to pay. It had adequate backup files and resumed operation after restoring its files from the backups. This firm did contact the police. Another law firm in British Columbia was not so fortunate and did decide to pay the ransome (and recovered their files). A third firm in British Columbia did not pay but was able to recover critical data that was in a zip file that escaped encryption. In Berks County, more than a dozen businesses reportedly have been victims of ransomware. Ransomware is a type of malware or malicious software designed to block access to a computer system or files (hold your client files hostage) until a sum of money is paid. If the money is not paid, your files may stay encrypted (unavailable) forever. So a person has to click on something to infect my firm, right? Many malicious computer attacks do require that a user click on something. However, recent versions have been using digitally signed
certificates to appear authentic to security programs or hide under CAPTCHA protected sites. Then, the ransomware is embedded within advertisements on websites. This has allowed ransomware to evade detection by anti-virus products while requiring little or no action by the user in order for the virus to be downloaded. The virus can be installed when a user visits a legitimate website and an infected advertisement on that website begins to automatically run, downloading the virus. What you and your law firm can do to reduce your risk: • Make regular backups of your data and do not have all of those backups accessible through the same network. Some options include daily or real-time cloud-based backups or nightly backups onto an external drive that is disconnected when not backing up. • Utilize cloud based storage. • Keep your anti-virus and anti-malware up to date (Mac and Android too). • Keep your operating system up to date. • Keep your browser up to date. • Consider an advertisement blocker such as Adblock Plus. • Think before you click. • Avoid clicking on advertisements. Go to websites by typing in their normal web address. • If you have your own e-mail server, consider using a third party service to filter spam, phishing, and viruses from e-mails outside of your firm’s network. • Consider the permissions users require to do their jobs and grant the permissions needed. Most employees likely don’t need to install programs on the firm computers. This may prevent the malware from being installed in the first place. If you are a victim of ransomware, the FBI recommends that you “scrub your hard drive and restore encrypted files from a backup”. The FBI also recommends that you file a complaint with the Internet Crime Complaint Center (IC3) at www.ic3. gov. I recommend that you contact a technology consultant and consider whether the incident triggers any disclosure requirements. And like many of our clients, it may be time for your law firm to consider the value of cyber insurance. Editor’s Note: Beginning with this issue “Technology – Frankly Speaking” will become a regular feature of The Berks Barrister to assist our members with technology issues. Mr. Franklin is a former treasurer of the Berks County Bar Association, serves as Chair of BCBA’s Technology Committee, practices law with the Prince Law Offices, P.C. and is a principal of Brightline Tech Solutions, LLC.
Fine Antique Firearms & Rare Collectibles LLC
John B Henry is an established dealer of fine antique (pre 1898) firearms and rare collectibles that celebrate the history and artistry of exceptional discoveries from around the globe. We are actively seeking to purchase single pieces or entire estates for inclusion in our collection. We are interested in firearm collections of all kinds, with a focus on military and antique items. Our team of skilled experts is equipped to provide qualified evaluations, and we are happy to provide professional references upon request. Referrals are appreciated and valued. Please call on us for a further discussion of how we can work together successfully.
Contact us at 610-566-5200 | contactus@johnbhenry.com John B Henry | P.O. Box 435 | Media, PA 19063
www.johnbhenry.com Berks Barrister | 13
Spotlight on New Members By Donald F. Smith, Jr., Esquire
Assistant Public Defender Carla P. Arias is a graduate of Kutztown University and Widener University School of Law. She had previously served as a law clerk at the Dethlefs-Pykosh Law Group in Camp Hill. Her hobbies include cooking, attending musical festivals, reading and traveling.
carla p. arias
Nicole C. Manley is an associate at the E. Kenneth Nyce Law Office in Boyertown, where her practice is concentrated in wills, estates and civil litigation. Her degrees were earned at Kutztown University and Widener University School of Law. Before attending law school, Nicole was employed at Tompkins Bank for seven years. She has clerked for the Honorable Jeannine Turgeon of the Dauphin County Court of Common Pleas and was a legal intern for the PA Department of Banking. Following law school she was associated with Paul Herbein, Esquire, prior to going to the Nyce office. She enjoys hiking in her spare time. The first Magisterial District Judge to ever join the Bar Association is Victor M. Frederick, IV, a 2014 graduate of the Widener University School of Law. He has been an MDJ for nine years. Prior to that, he spent twelve years in utility construction, safety and claims and seven years as a law enforcement officer. He earned a bachelor of arts degree in criminal justice at St. Leo University in Florida. He and his wife Joan have three children: Victor, 24; Emily, 18; and Katie, 15. The Judge lists fishing, golfing and singing as his hobbies.
victor m. frederick, iv
Eric C. Frey is a partner with the Lansdale firm of Dischell, Bartle & Dooley, P.C. and its E. Kenneth Nyce Law Office in Boyertown. A graduate of Penn State and Villanova Law, Eric’s practice areas are real estate, municipal, land use, zoning, corporate and condominium. He is married to Christine, and their children are Adeline, 16; Molly, 13; and Quintin, 9. His hobbies are golf, hunting and serving as a taxi service for his children’s sports. Christopher M. Garrell, associate with Orlando Law Offices, P.C., is a graduate of Temple University and Widener University School of Law (Delaware). Prior to his current employment, Christopher worked as an associate for Spear, Greenfield & Richman, P.C. as well as for a solo practitioner in Chester County. His current practice areas include civil litigation, business, municipal, estate & elder law, and creditor/debtor rights. During law school, Christopher served as a legal intern at the Chester County District Attorney’s Office. His hobbies include tennis, golf, ice hockey, snowboarding, and spending time in Sea Isle City, NJ.
christopher m. garrell
14 | Berks Barrister
nicole c. manley
Also joining the Public Defender’s Office last year was Meaghan Mahon, whose undergraduate and law degrees were both earned at Villanova University. Before joining the PD’s office, Meaghan practiced personal injury and tax law. Skiing and cooking are her hobbies.
eric. c. frey
Harminda M. Morales joined the Public Defender’s Office this Fall after working for Aivazoglou & Mikropoulos in the areas of personal injury, family and criminal law. She is a graduate of Neumann University and Villanova University School of Law. She has volunteered time with the Court Appointed Special Advocates program in Media.
Harminda m. morales
President Judge Yatron’s law clerk is Charles F. Prutzman, Jr., who earned his undergraduate degree at Lafayette College and his law degree at Temple University. His work background includes interning with the Honorable M. Teresa Sarmina of the Philadelphia Court of Common Pleas, the Montgomery Public Defender’s Office and the Defender Association of Philadelphia. Charles is engaged to Courtney Heffintrayer, an interior architect in Philadelphia. His hobbies are “scouring record stores, reading, biking and spoiling my dogs.” Assistant District Attorney Edriana Symia is a graduate of Lehigh University and the University of Baltimore Law School. While in law school, she was a certified legal intern with the US Department of Homeland Security, Immigration and Customs Enforcement branch. After graduating from law school, she clerked for the Honorable Jack A. Panella of the Pennsylvania Superior Court and also for the Honorable Jennifer H. Sibum of the Monroe County Court of Common Pleas. Edriana enjoys cooking, traveling and reading.
charles f. prutzman
edriana symia
WINT ER
Reach 20,000+
Engaged Consumers Plus 1,000 Physicians, Dentists, Practice managers & 750 Attorneys Throughout Berks County
2015
Ransomwa re: Is Your Data Safe?
Where are We on Mandatory Sentences?
Advertise in The Berks Barrister the Official Magazine of the Berks County Bar Association. For Advertising Opportunities Contact: Alicia Lee 610.685.0914 x210 Alicia@HoffPubs.com
Brad Hess 610.685.0914 x204 Brad@HoffPubs.com
Publishing Group HoffmannPublishing.com
Berks Barrister | 15
2014 ADMISSION CEREMONY AND RECEPTION On November13 the Berks County Bar Association’s Admission and Membership Committee, chaired by Carmen Stanziola, hosted the annual Admission Ceremony, presided over by the Honorable Scott D. Keller. A reception followed.
Charles Prutzman with his Mother and Grandmother
Amanda Kosmerl (L) with Adam McNaughton and his wife Kristen
Nicole Manley and Carla Arias
Joe Speece, Colleen Dugan, Justin Bodor and Daniel Troy
MDJ Victor Frederick and his wife Joan
Carmen Stanziola, Kelsey Frankowski and Mike Cammarano Judge Sprecher and Matthew Doll
District Attorney John Adams and James Mancuso
The Honorable A. Joseph Antanavage with his law clerk Susanna Fultz and her husband George
BCBA PRESIDENTIAL TRIUMVIRATE (L-R): 2014 President Tom Bell, 2013 President Gene Orlando and 2012 President Fred Hatt
NEW ADMITTEES (L-R): Carla Arias, Lauren Brier, MDJ Victor Frederick, Susanna Fultz, Christopher Muvdi, Christopher Garrell, Colleen Normile, Julianne Oliver hiding behind Elizabeth Hall, Charles Prutzman, Christopher Hoffmann, Elba Serrano-Torres, Amanda Kosmerl, Matthew Rossi, Elizabeth Kraft, Brian Sherbine, Timothy Malloy, Edriana Symia hiding behind Nicole Manley, Daniel Troy and Adam McNaughton
16 | Berks Barrister
Not Your Momma’s Snack Bar By Susan N. Denaro, Esquire
Snack bars. Just those two words can conjure up happy memories of youth long gone by. My favorite snack bars were at the swimming pool in the summer, the ski lodge in the winter and at Burkey’s on Main Street, Bernville, in between. Part of the allure of a snack bar was that our parents would hand us money and we set us off on our own for a tasty treat in between mom’s healthy homemade meals. Imagine my delight in finding a snack bar aimed at adults missing the carefree joy of their youth. Whether you have a hankering for pork rinds, oysters on the half shell, bratwurst or duck confit, you can find it at Tröegs Brewery, 200 East Hershey Park Drive, Hershey, Pennsylvania. Although its menu touts fare that it labels “fresh. simple. independent,” it should say “dazzlingly fun and imaginatively tasty.” It should also say it is a snack bar worthy of mom’s approval. We found the last space on its parking lot one dreary and cold fall day and went inside expecting to quickly grab a burger and fries, the type of greasy food one gets at a typical snack bar. We just didn’t know. Tröegs is a great place to go with a group of like-minded foodies so you can share multiple dishes as its offerings are divided into small plates, shared plates, large plates, and sandwiches categories. The math is simple. The more people you invite, the more dishes you will have to sample. There is a kids’ menu and desserts as well but I say leave the kids behind if you can. The long line to place an order offered a glimpse into the cramped kitchen and a view of the talented kitchen staff at work. This view caused confusion as all the dishes we saw flying out of the kitchen looked tempting. Everything is made on the premises, using produce from many local farms. We started with the soup of the day— a curried butternut squash and carrot elixir layered with warm spices and drizzled with basil-flavored oil and chopped peanuts. It
had a great balance between the sweetness of the vegetables and the heat of the curry. It was a perfect start to a delightful meal. We transitioned from the soup to the Oktoberfest pretzel, which was served with cheese fondue and horseradish mustard for dipping. The pretzel was soft and tasty and had a subtle barley flavor to it. Next up was a huge plate of poutine that was just as authentic and satisfying as any version found on the other side of the Canadian border. For those unaware of this dish, it is to Canada what apple pie is
to America. I usually think of it as a heart attack on a plate as it is a bowl of French fries with cheese curds smothered in brown gravy. Tröegs’ spin on this gluttonous classic featured premise-made turkey gravy, celery salt and cranberry ketchup. These elements gave it a seasonal spin that elevated it to a must have again status, despite the fact that it could have used a few more cheese curds. The pumpkin-barley fritters were served with a side of apple, fennel and malted parsnip puree as well as truffleflavored crisps. It was an innovative dish that sounded like it had too many flavors for one plate but the components were well-balanced and the serving size for sharing was small enough that its flavors didn’t overwhelm the subtleness of some of the other plates we shared. Our final selection was a braised beef
brisket served on a sweet brioche bun. Fresh mustard slaw and thick cut fries were served on the side with spicy ketchup. It was hearty and satisfying but not nearly as inventive as the other offerings, which was perhaps the point as this place clearly strives to have something for everyone. Oh. By the way, they have beer at Tröegs. Really good beer. Some of the beer even works its way into a few of the dishes. Unable to decide what brews would go with our various selections, we ordered the sampler. It featured several of its seasonal beers. Upon seeing how packed the Snack Bar was, our strategy was to have one person grab a table, one order the beer and another stand in line for the food. All the lines moved quickly considering the size of the hungry crowd. The atmosphere is reminiscent of a ski lodge, despite the stainless steel brewing equipment along the back wall of the large room. Perhaps that is why it made me remember my favorite snack bars from years gone by. I hear some people go to Tröegs just for the beer. Frankly, we did, but the Snack Bar is the reason we will go back, again and again, with friends to share the required division of labor. Move over Hotel Hershey. Troegs Snack Bar 200 East Hershey Park Drive Hershey, PA 717-534-1297 www.troegs.com Hours: Sunday – Wednesday 11:00 am to 9:00 pm
Thursday – Saturday 11:00 am to 10:00 pm
Susan N. Denaro, Esquire, is a principal in the Wyomissing law firm of Rabenold, Koestel, Goodman & Denaro.
Berks Barrister | 17
Vickie Gallen Schutt was named a Rising Star by the Greater Reading Chamber of Commerce. She is with Roland Stock. Our “Adam’s Rib” couple, Assistant Public Defender Amy Litvinov and Assistant District Attorney Igor Litvinov welcomed their first child, Anna Jane, on December 2, 2014.
Osmer S. Deming has been appointed to the board of directors for the Reading Public Library.
Berks County Pretrial Services has added Assistant District Attorney Justin D. Bodor to its board of directors. Justin also serves as the Berks County Bar Association’s Treasurer.
Robert J. Hobaugh, Jr., of Stevens & Lee, was the winning chef at the Dining with Diakon fundraising event with his sesame soy roasted beef tenderloin. He also raised over $10,000 to help Diakon Adoption & Foster Care.
Barley Snyder’s Michael Mixell has been elected to a two-year term on the board for Prospectus Berco, an organization dedicated to helping people with disabilities or other special needs.
18 | Berks Barrister
Fox Rothschild’s J. Benjamin Nevius and wife Jan celebrated the birth of Clara Jane on November 9. She joins Lilia, who ”loves being a big sister.”
On October 1, 2014, Alexa Antanavage gave birth to Benjamin Sawyer. He joins threeyear-old sister, Claire. Also, last Fall, Father Russell Farbiarz, on behalf of their law firm, received the Small Business of the Year Award from the Northeast Berks Chamber of Commerce.
INJURED?
4 FREE Consultation 4 Home, Hospital & Eve. Appts. 4 No Recovery/No Fee 4 We Advance All Costs 4 Serious Injuries 4 Auto Accidents 4 Wrongful Death MILLION DOLLAR SETTLEMENTS
CIRBA & KIRWAN, P.C. 2901 St. Lawrence Ave., Suite 201, Exeter Twp., READING
www.cirbakirwan.com
610.370.5500
CRIMINAL DEFENSE 4 FREE Consultation 4 Murder Cases - Death Penalty Certified 4 Drug Offenses & Assault Cases 4 DUI’s & DUI Homicide 4 Speeding & Traffic Violations 4 Se Habla Espanol
Call us 24/7 & Weekends: 610.207.1852 Former Assistant District Attorney for Berks County
CIRBA & KIRWAN, P.C. 2901 St. Lawrence Ave., Suite 201, Exeter Twp., READING
www.cirbakirwan.com
610.370.5500 Berks Barrister | 19
Where are We on Mandatory Sentences? By Assistant District Attorney Alisa R. Hobart On June 17, 2013, the Supreme Court of the United States changed the face of mandatory minimum sentences in Pennsylvania. In Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the Supreme Court held that any fact that increases a mandatory minimum sentence is an “element” of the crime that must be submitted to the jury and found beyond a reasonable doubt, and not a “sentencing factor” that can be decided by a judge by a preponderance of the evidence. The decision overruled long-standing precedent on the subject. Prior to Alleyne, the Supreme Court specifically found that mandatory sentencing provisions were constitutional even though the applicability of these provisions was determined by the sentencing judge by a preponderance of the evidence. See McMillan v. Pennsylvania, 477 U.S. 79 (1986); Harris v. United States, 536 U.S. 545 (2002). Thus, the decision in Alleyne reversed the tides regarding these mandatory sentencing provisions and has created growing pains for those of us practicing criminal law. The most basic adjustment was the submission of the additional facts in support of the mandatory provisions to the jury at the time of trial, usually in the form of an interrogatory, or the admission to these additional facts by the defendant at the time of the guilty plea. This adjustment was made going forward almost immediately. However, questions arose about those defendants who were sentenced to mandatory provisions prior to Alleyne – was the decision retroactive? As law school graduates may recall, the retroactivity of any new rule of law largely turns on whether the rule is substantive or procedural. See Schriro v. Summerlin, 542 U.S. 348 (2004). In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2013)(en banc), alloc. pending (646 MAL 2014), our
20 | Berks Barrister
Superior Court found that the decision in Alleyne applies to all pending cases at the trial court level and all cases which were still pending on direct review at the time the decision was made. However, because nothing in Alleyne specifically discusses retroactivity, our Superior Court also held that this decision does not apply to those judgments of sentence which had already become final when Alleyne was decided. See Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), reargument denied, 2014 Pa. Super. LEXIS 4546 (Dec. 5, 2014). Because it does not appear that either the Supreme Court of the United States or the Supreme Court of Pennsylvania has plans to address this issue, it would seem that the retroactivity issue is largely resolved. The larger question surrounds the constitutional validity of those mandatory provisions which still contain language which is now inconsistent with Alleyne. Notably, many mandatory sentencing provisions still contain a separate subsection which allows the sentencing judge to determine the applicability of the mandatory provision by a preponderance of the evidence. See e.g. 18 Pa. C.S.A. § 6121 (Certain bullets prohibited); 18 Pa. C.S.A. § 6314 (Sentencing and penalties for trafficking drugs to minors); 18 Pa. C.S.A. § 6317 (Drug-free school zones); 18 Pa. C.S.A. § 7508 (Drug trafficking sentencing and penalties); 42 Pa. C.S.A. § 9712 (Sentences for offenses committed with firearms); 42 Pa. C.S.A. § 9712.1 (Sentences for certain drug offenses committed with firearms); 42 Pa. C.S.A. § 9713 (Sentences for offenses committed on public transportation); 42 Pa. C.S.A. § 9717 (Sentences for offenses against elderly persons); 42 Pa. C.S.A. § 9718 (Sentences for offenses against infant persons); 42 Pa. C.S.A. § 9719 (Sentences for offenses committed while impersonating a law enforcement officer). To date, it does not appear that these mandatory provisions
have been modified in light of the Alleyne decision, nor does it appear that our legislature is in any hurry to do so. Several opinions have found various mandatory provisions to be unconstitutional. On April 30, 2014, the Berks County Court of Common Pleas – Criminal Division rendered an unprecedented en banc decision declaring the mandatory sentencing provisions at 18 Pa. C.S.A. §§6317 (school zone) and 7508 (drug weight) unconstitutional in their entirety based upon the decision in Alleyne. See Commonwealth v. Williams, CP-06CR-0004690-2013 (appeal pending 116 MAP 2014) and Commonwealth v. Burgos, CP-06-CR-0002484-2011 (appeal pending 115 MAP 2014), respectively. Other Courts of Common Pleas throughout the Commonwealth have issued similar opinions. The Superior Court has also followed suit regarding several other mandatory sentencing provisions. See e.g. Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2013) (en banc), alloc. pending (646 MAL 2014)(“drug and gun” mandatory at 42 Pa. C.S.A. §9712.1 is unconstitutional); Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014), alloc. pending (800 MAL 2014)(“visibly possessed a firearm” mandatory at 42 Pa. C.S.A. §9712 and “offense in or near public transportation” mandatory at 42 Pa. C.S.A. §9713 are both unconstitutional); Commonwealth v. Wolfe, 2014 Pa. Super. LEXIS 4977 (Pa. Super. Dec. 24, 2014)(“offenses against infant persons” mandatory at 42 Pa. C.S.A. §9718 is unconstitutional). As indicated, several of these cases are currently pending on appeal before the Supreme Court of Pennsylvania, and several others have allocatur petitions outstanding. Thus, while the constitutionality of the various mandatory provisions has largely been decided at the trial court and intermediate appellate court
level, the Supreme Court of Pennsylvania has yet to speak on the issue. In these appeals, the key issue seems to surround the severability of the portion of the mandatory statute that runs afoul of the Alleyne decision. 1 Pa. C.S.A. §1925 Constitutional Construction of Statutes. Not surprisingly, the defense argues that the inconsistent provision cannot be severed because the provisions are inextricably interrelated, rendering the entire statute unconstitutional, while the prosecution argues that the inconsistent provision is capable of severance without distorting the remainder of the statute, which can still be fully enforced. The issue of severability is currently pending before the Supreme Court of Pennsylvania in Commonwealth v. Hopkins, 98 MAP 2013 – a case out of Chester County where the constitutionality of the school zone mandatory at 18 Pa. C.S.A. §6317 is challenged. Oral argument was heard on that case on September 10, 2014, and that decision is awaited with great anticipation. While many opine that the outcome looks grim for the prosecution, analysts vary on the projected result (or maybe that’s just the hopeful opinion of this prosecutor). In any event, the decision in Hopkins will likely settle the issue for all of the mandatory provisions which contain language which is inconsistent with the Alleyne decision.
t s i p o r h t n Phila Devoted Parent
Attor ney
Live the life you choose. Life is about the choices we make and the relationships we build. At Connors Investor Services, we’ve been helping clients achieve their specific goals for the past 45 years. We offer a customized, disciplined approach to long-term investing—backed by a unique combination of knowledge, experience and resources. Our personal style of doing business means we’re always accessible to you and put your interests first. Live the rich, rewarding life you deserve. Begin by choosing an investment firm built on relationships and trust.
Integrity, Service, Performance 1210 Broadcasting Road, Suite 200 Wyomissing, Pennsylvania 19610 610-376-7418 • www.connorsinvestor.com
Registered Investment Advisor James M. Connors • Peter J. Connors, CFA® • Robert C. Leayman, CFA® Steven C. Silverman, CFP® • Robert J. Cagliola, CFA® • Lidia H. Zidik Brian G. McCoy, CFA® • Steven E. Pottieger, CFP® • Michael J. Noon, CTFA CFA® and Chartered Financial Analyst® are registered trademarks owned by CFA Institute. CFP® and Certified finanCial Planner™ are registered trademarks owned by Certified Financial Planner Board of Standards, Inc.
Editor’s Note: Ms. Hobart is the Chief of Appeals for the Berks County District Attorney’s Office.
Berks Barrister | 21
HOLIDAY RECEPTION! The theme for the 2014 Holiday Reception was “Take Flight with Pilot Pleet.” Incoming 2015 President Jesse L. Pleet is a licensed pilot, and so the Social Hall of the Reform Congregation Oheb Sholom was transformed into an airport terminal with check-in, a selection of “restaurants,” pilots’ lounge, a bar and baggage claim (desserts). As always, the caterer, Bravo for Rose, and their flight attendants did an outstanding job. A record attendance enjoyed the evening!
Susan Denaro and Sara Haines Kevin Moore and Doug Rauch
Walt Diener, Joan London, Greg Henry, Toby and Bernie Mendelsohn PROSECUTORS AND PUBLIC DEFENDERS (L-R): APD Jessica Brown, APD Chris Muvdi, APD Eric Taylor, ADA Matthew Rossi, ADA Adam McNaughton, APD Chris Price and APD Harminda Morales
Past Presidents Dick and Dan Bausher
Chris Connard and Chris Mandracchia
Sean O’Brien and Mike Dautrich Ken Millman placing his ice cream order
Ron Cirba, George Balchunas and Judge Fudeman
22 | Berks Barrister
Anna Ferguson John Carlson, Carl Mantz, John Badal and Darlington Hoopes
Drew Schwartz, Jennifer Nevins and Sal Folino
Amy Good, Steve Otto, Val West and Judy Kline
Past President Lisa Ciotti, 2014 Treasurer Eden Bucher and 2014 President Tom Bell
Chef Joe slices Paul Missan’s serving of filet mignon
PROSECUTORS QUATTRO (L-R): Colin Boyer, Todd Mays, Ken Kelecic and BCBA Treasurer Justin Bodor
Keith Mooney and Andrew Onwudinjo
Abe Cepeda, Colleen Normile and Bernardo Carbajal
Phil Edwards and Tim Bitting
FLIGHT ATTENDANTS (L-R): Caterer Rose and Past President Jill Scheidt
Dave Sobotka likes the Chinese food!
Zach Morey, Kristen Doleva, Greg Ghen, Tony Rearden and Dan Degler Brenna Mendelsohn, Paul Herbein, Kurt Geishauser and Judge Lieberman
Matt Mayer and Jennifer Grimes
MDJ Victor Frederick, Robert Kirwin and Rebecca Bell
Berks Barrister | 23
Drafting POAs Has Become More Complicated By William R. Blumer, Esquire, and Sean J. O’Brien, Esquire Changes to Pennsylvania’s power of attorney statute that became effective on January 1, 2015 require attorneys to update their forms and more importantly permit attorneys to customize their documents to address a variety of issues. This puts a premium on drafting and elevates the power of attorney from a boilerplate document to one requiring careful thought during the drafting process. Some of the changes introduced by the Act are straightforward. For example, the notice provision that is to be signed by the principal and the acknowledgement that agents must sign has been reworded. Specifically, the Act modified the notice provision which is required to be at the beginning of all powers of attorney. The previous Act required the notice to provide the following: “YOUR AGENT MUST KEEP YOUR FUNDS SEPARATE FROM YOUR AGENT’S FUNDS.” The new Act replaces the above-mentioned sentence with the following: “YOUR AGENT MUST ACT IN ACCORDANCE WITH YOUR REASONABLE EXPECTATIONS TO THE EXTENT ACTUALLY KNOWN BY YOUR AGENT AND, OTHERWISE, IN YOUR BEST INTEREST, ACT IN GOOD FAITH AND ONLY ACT WITHIN THE SCOPE OF AUTHORITY GRANTED BY YOU IN THE POWER OF ATTORNEY. THE LAW PERMITS YOU, IF YOU CHOOSE, TO GRANT BROAD AUTHORITY TO AN AGENT UNDER POWER OF ATTORNEY, INCLUDING THE ABILITY TO GIVE AWAY ALL OF YOUR PROPERTY WHILE YOU ARE STILL ALIVE OR TO SUBSTANTIALLY CHANGE HOW YOUR PROPERTY IS DISTRIBUTED AT YOUR DEATH. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD SEEK THE ADVICE OF AN ATTORNEYAT-LAW TO MAKE SURE YOU UNDERSTAND IT.” The Acknowledgment by Agents of Obligations and Responsibilities is also amended. Under the old Act the specific acknowledgements were as follows:
24 | Berks Barrister
I shall keep the powers for the benefit of the principal. I shall keep the assets of the principal separate from my assets. I shall exercise reasonable caution and prudence. I shall keep a full and accurate record of all actions, receipts and disbursements on behalf of the principal. These directives were replaced with the following language: I shall act in accordance with the principal’s reasonable expectations to the extent actually known by me and, otherwise, in the principal’s best interests, act in good faith and act only within the scope of authority granted to me by the principal in the Power of Attorney. The modifications to both the Notice and Acknowledgment stem from the concept that spouses acting in their capacity as agent under a power of attorney failed in many respects to keep their assets separate and apart. In the case of joint assets, it was nearly impossible to keep assets separated. The disclosures help alleviate the concerns between spouses, especially when there were jointly held assets. The rules for signing powers of attorney have also changed. Now the principal’s signature must be notarized. Two witnesses over the age of 18 are now required in all situations, not just when someone else is signing on behalf of the principal. If someone is signing on behalf of the principal, then that person may not also act as a witness. The Act further allows for the electronic recording of Powers of Attorney. As we all have witnessed, the electronic filing age is upon us; and so come new rules to allow for the electronic recording of documents. This is especially helpful when an agent is transferring real estate which requires the power of attorney to be recorded. The Act specifically provides that electronically transmitted copies of an original executed power of attorney have the same effect as the original. This provision may be useful when an Agent is attempting to liquidate assets where the financial institution is not local. Turning to the substantive features of the Act, it codifies basic common law principals for powers of attorney. Specifically, section 5601.3(a) now provides that the agent must “Act in
accordance with the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’s best interest.” It also imposes duties to act in good faith and only within the scope of the authority granted in the power of attorney. The act defines good faith as “Honesty in fact.” Significantly, these duties apply regardless of any exculpatory language in the power of attorney to the contrary. Section 5601.3(b) also allows the drafting attorney to impose other optional duties on the agent. These include a duty (i) to act loyally for the principal’s benefit, (ii) to keep the agent’s funds separate from the principal’s funds, (iii) to act so as not to create a conflict of interest between the agent and the principal, (iv) to keep records of the agent’s transactions for the principal, (v) to cooperate with the principal’s health care agent, and (vi) to preserve the principal’s estate plan. Since these latter duties are optional, attorneys drafting powers of attorney must decide as a general rule if some or all of these duties should be included in their forms. Then when working with specific clients, attorneys will need to determine which of these might be helpful or injurious to the interests of a particular client. Of special interest to estate planners and elder law attorneys are the specific issues addressed in the duty to preserve the principal’s estate plan. These include acting to minimize taxes, considering the principal’s foreseeable obligations and need for maintenance, and creating or maintaining eligibility for government benefits. Under section 5601.4 agents can be authorized to create, amend, revoke or terminate an inter vivos trust. They can also be authorized to make gifts, create or change rights of survivorship, create or change beneficiary designations. Family law attorneys should take note that agents can now waive the principal’s right to be a beneficiary under a joint and survivor annuity, including those found in retirement plans governed by ERISA. There is an important limitation to the powers that can be given in section 5601.4(a). In section 5601.4(b), there is a new rule that says “unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse or descendant of the principal may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer or otherwise.” This limitation is aimed at agents unrelated to the principal who might be tempted to use their authority for self-benefit and effectively cuts off their authority to exercise the powers described in section 5601.4(a). So, for example, if the principal wants to grant a power to make gifts to an agent who is not related to the principal and wants that power to include gifts to the agent, there must be specific language in the power of attorney that allows the agent to make such a gift. A general grant of authority without more will not be effective. The new law also expands on the rules for making gifts by fleshing out some of the particulars when the agent is authorized to make “limited gifts” and makes clear that gifts in excess of the Federal gift tax annual exclusion are permitted if the power of attorney specifically authorizes them. The new law also ties gifting powers to the more general power to protect and preserve the principal’s known estate plan. This essentially confirms the power to make gifts but places that power in a context designed to better protect principals from unscrupulous agents who might
attempt to utilize a gifting power improperly. Hopefully, the new statute’s expanded discussion of gifting with make attorneys more inclined to include gifting provisions in the powers of attorney they draft, especially for clients of modest means who may need to reorder their finances and those of their spouse when faced with substantial long-term care costs. Too often the authors encounter powers of attorney with no or only limited gifting provisions that prevent agents from rendering effective assistance preserving the principal’s estate plan and qualifying the principal for important government benefits like the VA pension and Medical Assistance. Of course the original reason to update the power of attorney statute was to overrule the decision in Vine v. Commonwealth. Evidently, this required substantial lobbying by the banking industry because now section 5608(e) permits any third party to whom a power of attorney is presented to request (i) an agent’s certification, (ii) a translation of the document into English and/or (iii) an opinion of counsel relating to whether the agent is acting within the scope of authority granted by the power of attorney if the person requesting the opinion of counsel provides a written reason for the request. Moreover, these items can be requested at any time an agent is attempting to act, even if they were not requested when the power of attorney was originally presented by the agent. So what happens if an agent’s certification and/or an opinion of counsel is provided? The party requesting them must accept the power of attorney within five days of receiving those items unless there is a substantial basis for making a further request under the statute. However, section 5608.1(b) now lists those situations when a third party does not have to accept a power of attorney. Practitioners should review those situations carefully any time a third party refuses to accept a power of attorney. Overall, the new power of attorney act addresses many of the issues that have arisen in the courts and in day to day life over the last fifteen years. It remains to be seen how financial institutions will act given the new procedures and requirements of sections 5608, 5608.1 and 5608.2. What is clear, however, is that attorneys drafting powers of attorney have a lot more to think about when crafting these documents and many more options to customize them for each client’s unique concerns and circumstances. Editor’s Note: Mr. Blumer, a shareholder at Leisawitz Heller, is chair of the BCBA Estate Planning/Elder Law Section, and Mr. O’Brien, a shareholder at Mogel, Speidel, Bobb & Kershner, is chair of BCBA’s Orphans’ Court Rules Committee.
Berks Barrister | 25
Spoken from the Heart By Brian C. Engelhardt, Esquire
Those in attendance at the annual Holiday Benefit Luncheon, hosted by the Law Foundation of Berks County and the PICPA Reading Chapter, acquainted with the career of the keynote speaker Jamie Moyer, knew that he was a key member of the 2008 World Champion Philadelphia Phillies. Most also were aware that Moyer holds the record of being the oldest winning pitcher of a major league game which, for those keeping score at home, he set on April 17, 2012 at the age of 49 years and 150 days as a member of the Colorado Rockies in a 5-3 victory over the San Diego Padres, having pitched 7 innings with no earned runs allowed. (Those in attendance really keeping score at home were also aware that a month later in the process of recording his second win for the Rockies in a May 16, 2012 win over Arizona, Moyer set another baseball milestone when his dribbler to right field drove in two runs and made him the oldest player in baseball history to drive in a run in a game.) Moyer’s record as the oldest pitcher to record a victory was remarkable not only because of the longevity of his professional baseball career in and of itself, beginning in 1984 and ending in 2012—8 major league teams, 12 minor league teams, once being selected to the All Star Team, 8 appearances in post season play with 3 different teams,
26 | Berks Barrister
2 seasons with 20 or more wins; and 269 big league victories later. What is particularly extraordinary about the record is that Moyer set it after he suffered an elbow injury in June of 2010 while with the Phillies, which was viewed at that time (by everyone but Moyer) to be of a career ending nature. Following the injury, instead of retiring at age 47, Moyer underwent Tommy John surgery along with the painful rehabilitation process that usually takes athletes 20 years younger a year to complete. While those present were prepared to hear about plenty of baseball, Moyer’s
remarks, given in the course of his responding to questions from event Chair Mark Caltagirone and myself and then from the audience, were not what was expected. In the words of Reading Eagle reporter Brian Smith taken from his article that appeared in the next day’s Eagle, “What set (Moyer) apart from the six previous speakers at this event—all of whom were plenty entertaining—was his humanness. He wasn’t afraid to show his emotions.” In discussing the basis of his success over the course of his career—mastering what he calls, “the chess game between the batter and the pitcher—the game of cat and mouse,” Moyer discussed how he maximized his strengths—pinpoint control and ability to change speeds on a batter through a “change up” delivered with the same motion as with his normal fastball, which wasn’t very fast. While much of this success is attributable to a relentless work ethic followed over the course of his long career (an amazing statistic is that during his career Moyer faced 8.9% of the approximately 16,000 players who have ever played major league baseball), Moyer’s accomplishments were in no small part achieved because of his mental and emotional approach to the game—what went on in his head and his heart. To this effect, Moyer discussed how he was strongly influenced during the course of his major league career and
his life by three people he encountered— none of whom wore a baseball uniform. One such person was Greg Chaya, whom he first met in 1993 during a visit to a Baltimore hospital. At that time Chaya was 2 years old and suffering from leukemia. Moyer related how “I saw this sick little boy veins popping out of his head, not much hair, tubes in and out all over the place. I just stood at the doorway and thought how unfortunate was this little boy, and how lucky as a couple my wife and I were to have a healthy little boy,” (at the time he had his wife Karen had only one child—they now have 8). Moyer described how he “just made a vow right there: … to do whatever I can to lift this kid’s spirits. I think he lifted my spirits more than I lifted his.” Chaya’s fight against the cancer led his family to enter him into the Fred Hutchinson Cancer Research Center in Seattle, where the cancer was treated successfully. Greg Chaya is now 24. Moyer became emotional in discussing his experience with Chaya. “The thing that I learned through this experience with Gregory and his family is that faith and belief was really, really important.” Looking back, Moyer stated how at the time, “I was struggling in my career, but I kind of let go of my career and put a lot of emphasis on Gregory, and things started to move forward. I really didn’t have an answer why. I just let things go as far as baseball goes.” In an April 2013 interview with Dave Davies of NPR’s “Fresh Air,” Moyer stated that as a result of his relationship with Chaya, he learned to put any of his baseball frustrations aside and to leave the game on the field, providing him with what he described as a “new energy,” and leaving him at peace on and off the field—win or lose. As pointed out by Brian Smith, following Moyer’s encounter with Chaya, his career took a decided upturn. Prior to the 1993 season Moyer’s record was just 34-54 with a 4.56 ERA. Over the rest of his career, his record was 235-155 with a 4.19 ERA. Another relationship Moyer talked about with some degree of emotion was that which he and his wife had with Erin Metcalf, whom they met when she was 15 and waiting for an organ transplant. Although she was able to have the transplant operation, Erin died of spinal cancer several years later. Moyer
recalled how Erin “loved working and spending time with children” and that “one of her last wishes was to continue to help children.” With the permission of Erin’s parents, the Moyers named their grief counselling camp run by the Moyer Foundation, “Camp Erin.” In 2000 Jamie and Karen had established The Moyer Foundation to help children in distress. Camp Erin, a grief camp for children 6-17 who have experienced the death of someone close to them, was formed in 2003 in Seattle. There are now 46 located nationwide, with a camp in every major league baseball city. Attendance at the camp is free of charge. In 2007, the Moyers contributed a gift of one million dollars to the Moyer Foundation. Moyer’s openness in expressing his feelings in his responses should have been no surprise to anyone who had read his autobiography, Just Tell Me I Can’t, written with Larry Platt (Grand Central Publishing, 2013). Although the book, which Mark and I each read in preparation for the interview, has its primary focus on the physical and mental struggles Moyer encountered in his comeback from the Tommy John surgery, it also covers his career up to that time. Throughout the book, Moyer quite openly shares his feelings and thoughts about the high and low points of his life and career—both on and off the field. The third person not in a baseball uniform Moyer encountered during his major league career who influenced him was Harvey Dorfman, best defined as a “sports psychologist” who mentored Moyer for years. A unique character with
somewhat of a rough demeanor (he was often known to say to his pupils, “I don’t care what you feel, I care what you do.”) Dorfman overcame asthma he had suffered from as a child to become an athlete, taught high school English, coached women’s basketball (leading a team to a state championship), then became involved with the Oakland A’s and wrote the book, The Mental Game of Baseball; A Guide to Peak Performance.” From there he became a consultant to baseball players, with his clients including Roy Halladay and Brad Lidge, to name just two. Moyer first consulted with Dorfman following his being released by the Texas Rangers after the 1990 season. A harsh taskmaster who challenged Moyer, Dorfman espoused a philosophy of avoiding “paralysis by analysis,” where one would be overwhelmed with too much information.” Dorfman would advocate instead to “focus on the task at hand,” addressing the question of “what is it that I’m trying to conquer?” In Moyer’s case, the “task at hand” upon which Dorfman had him focus was to work on achieving good mechanics to make the hitter a frustrated person—not try to overpower the hitter. While Moyer had a particularly good “changeup” (a pitch delivered with the same motion as a fastball, but travels at a slower pace to throw the hitter off the pace), Dorfman also had him work on the pinpoint location of his pitches to avoid pitches too much over the plate and to instead paint the corners of the plate. Moyer’s focus was on learning to locate his fastball properly to set up his changeup.
continued on page 29
Berks Barrister | 27
L aw Foundation of Ber k s Count y 2 014 A nn ua l Gi v i ng C a m pa ign The Law Foundation of Berks County’s 2014 Annual Giving Campaign is now complete. As of January 19, 2015, those listed below have generously given to the Foundation. The Board of Trustees thanks all who have provided contributions to the Law Foundation. Bridge Builder ($1000 or more) Nathaniel E.P. and Meghan Lynch Ehrlich (In memory of Leon & Elizabeth Ehrlich) Kline Family (In memory of Sidney D. Kline, Jr.) James and Lori Lillis (In memory of Norman E. Dettra, Jr.) Donald F. Smith, Jr. (In memory of Past Presidents Sidney D. Kline, Jr. and John C. Bradley, Jr.) Anonymous
Juris ($500 to $999) John R. and Cathy M. Badal Richard A. Bausher Edwin H. Kershner (In memory of George A. Kershner) Heidi B. Masano (In memory of John C. Bradley, Jr.) Leon A. Miller (In memory of Honorable James W. Bertolet) John J. Speicher (In memory of John C. Bradley, Jr.) Orpha and Retired Judge Albert Stallone (In memory of Martin W. Binder) Brumbach, Mancuso and Fegley, P.C.
President ($250 to $499) Alexa Antanavage and Russell Farbiarz G. Thompson Bell, III Honorable John A. Boccabella Linda Faye Epes, Esquire Susan E.B. Frankowski (In memory of Leon & Elizabeth Ehrlich) Bonnie and Ken Hartman (In memory of Judge Elizabeth Ehrlich) Edward E. Houseman Brett and Joanne Huckabee Dan and Ellen Huyett Kenneth and Debra Millman Frederick M. Nice James M. and Kathryn S. Snyder Carl and Debbie Sottosanti Sodomsky and Nigrini
28 | Berks Barrister
Terry D. Weiler White Star Tours Anonymous Anonymous
Partner ($100 to $249) Frances Aitken George Audi (In honor of Ken Millman) Cathy Badal, Sharon M. Scullin & Wendie Ziegler (In memory of Sharron Lash) Daniel and Deirdre Bausher Mark S. Caltagirone Lisa M. Ciotti Alfred W. Crump, Jr. John and Pamela DeMartino Brian Engelhardt (In memory of Sidney Kline, Jr.) David R. Eshelman Charles F. Fitzpatrick John T. Forry (In memory of John H. Forry and William Forry and in honor of Emma Forry Mullen) Honorable Madelyn Fudeman James A. Gilmartin Barry D. Groebel Joseph L. Haines Frederick K. Hatt (In memory of John C. Bradley, Jr.) Joanne M. Judge Karetas Foods, Inc. Judge Scott D. Keller Robert and Jill Gehman Koestel David M. Kozloff Masano Architects Group Bernard and Toby K. Mendelsohn Elizabeth K. Morelli, Esq. Daryl F. and Susan K. Moyer Paul and Mary Jo Ober Scott C. Painter, Esq. Chuck Phillips Jesse L. Pleet James M. Polyak
Sharon M. Scullin and James S. Rothstein (In memory of Anna Dickinson) William Rush Jill M. Scheidt Peter F. Schuchman, Jr. Christopher A. Spang, Esq. Honorable Jeffrey K. Sprecher and Jane Sprecher (In memory of Judge Elizabeth Ehrlich) John M. Stott, Esq. (In memory of Honorable Thomas Golden) Mr. and Mrs. William P. Thornton, Jr. Honorable Mary Ann Ullman Honorable Eugene F. Wisniewski Greg Young Derr, Hawman & Derr Koch & Koch Roland Stock, LLC
Associate Honorable A. Joseph Antanavage Donald K. Bobb (In memory of Henry A. Gass, Esquire) Connors Investor Services, Inc. Laura Cooper Merle and Wendy Dunkelberger Diane P. Ellis Lynn Feldman Charles and Alisa Hobart Darlington Hoopes, Jr. Judith L. Kline Jack A. Linton J. Randall Miller Kenneth C. Myers Michael & Mary Jean Noon Amy Nieves-Febres Michael J. Restrepo Betty Jane Schafer Michael C. Wieder Michael A. Wolfe Honorable George C. Yatron Adam and Jenn Zuidema Anonymous
Spoken from the Heart He worked in a curve ball as well. Even after his formal sessions ended, Moyer would consult with Dorfman by occasional phone calls for years until Dorfman’s death in 2011. With respect to the “game of cat and mouse” in which he would engage with batters, Moyer talked of a strategy he employed on select occasions where he would directly talk to the batter in a humorous way with the idea of “getting in the batter’s head.” He related an instance that occurred in a game playing for the Mariners against Cleveland where he had a comfortable lead. Moyer asked Dave Justice of the Cleveland Indians, who had just fouled off nine pitches in a row, where did he really want the pitch to be. Justice, looking at Moyer with amusement and surprise, told him right down the middle. When Moyer obliged, Justice hit a home run, shaking his head and laughing as he ran the bases. In recounting the story Moyer laughed and said, “Well, I got rid him.” Notably, that was the only home run Justice ever hit against Moyer and otherwise hit .205 against him. Moyer also described how he would talk to the umpire, including a technique to get the umpire out to the mound without directly addressing him while ostensibly talking to the catcher. Once the umpire would have approached the mound (to tell Moyer and the catcher to wrap up their conversation), Moyer would ask about whatever it was that was bothering him, while not looking at the umpire. Moyer emphasized that this needed to be done in a respectful way, noting umpires can be beneficial and are not to be embarrassed, lest you lose the benefit of close calls. A native of Souderton, Moyer grew up a Phillies fan. In 1980 he and some buddies skipped school to go to the parade down Broad Street, celebrating that championship Phillies team. He grew up idolizing Steve Carlton, and, ironically, his first big-league victory was a June 16, 1986 7-5 win for the Cubs against the Phillies in
continued from page 27
which Carlton was the losing pitcher. Years later Moyer and Carlton would develop a relationship through encounters at Phillies events, where the two left handed craftsmen on the mound would discuss and analyze the art of pitching and related techniques. Thus, when Moyer was asked to recount some of his experiences with the 2008 Phillies he answered in many ways as a fan as much as a team member. Although it seems like the distant past, it is appropriate to remember during that year he not only was the ace of the staff with a record of 16-7 and that his record
during the last 3 months of the season was 9-1 with a 3.28 ERA. He was the winning pitcher in in the division clincher both that year as well as in 2007. Recounting when he walked in from the bullpen to the dugout before pitching in the third game of the series, he broke his own rule about not looking into the stands, saying to himself, “I don’t know if I’ll ever get to the World Series again. I’m going to take this moment in.” Describing how the “excitement …, the energy, (and) the electricity” he experienced at that moment caused him to almost feel “like my feet weren’t touching the ground as I walked across the field. It was very emotional for me, but very exciting.” Moyer experienced an emotional moment when he described his experience in that year’s parade down Broad Street, relating how moved he was. “To literally see adults standing to the side of the floats crying with joy in the City of Philadelphia was really, really one of the biggest memories I will take away.” The audience response to the emotion and sincerity in Moyer’s recounting of these events could
be best described as a hushed reaction of respect, seeing that Moyer was indeed baring his soul to them. With respect to audience reaction to Moyer at the Holiday Benefit Luncheon on December 5, unlike in years past where at 2:00 there was a perceptible number of people who had left, regardless of the stage of the program, there was only a small number of such departures this year, even though the program ran more than ten minutes over. When Moyer joined the Rockies, the team had a ritual at the beginning of spring training where teammates would introduce each other, giving insight into their different backgrounds. The teammate that Moyer was assigned to introduce was Jeremy Guthrie. Most of the players involved would simply Google who they were assigned to introduce. Not Moyer. He talked to Guthrie’s mother and friends and discovered all kinds of things that were not relatively available on Google— including that Guthrie had been a state chess champion in high school. The detail of his presentation blew everyone away. In recounting the event in Just Tell Me I Can’t, Moyer related that his approach to the task, buttressed by his training with Dorfman, was that if you’re going to do a job, then do it right and go to the lengths needed to deal with it properly. Moyer was cordial and personable to all who approached him at the Luncheon. He worked around having to navigate on crutches and wearing a cumbersome boot on his one foot, as a result of ankle surgery. He was relaxed immediately in the interview session (no doubt due to my telling him ahead of time that, in this exercise, he was Gladys Knight and Mark and I were the Pips). The answers he gave to the questions we posed were thoughtful, thorough and heartfelt answers. As was the case with his presentation to his Rockies teammates of Jeremy Guthrie’s background, Moyer’s approach to the December 5 presentation was to “do the job right.”
Berks Barrister | 29
Holiday Lunch Benefiting Law Foundation Was a Good Time!
Eleni Dimitriou Geishauser and Paula Barrett
KOZLOFF STOUDT TABLE (L-R): John Muir, Dan Snyder, Michael Monsour, Kevin Musheno, BCBA Past President Dave Kozloff, Jim Lillis, Joan London and Peter Schuchman
Frank Mulligan (L) with Law Foundation Secretary-Treasurer Mike Noon
Brett Huckabee is hoping for a winning ticket
MASANO BRADLEY TABLE (L-R): FOP President Joe Brown, Jim Gavin, Heidi Masano, S. Heidelberg Township Manager Ron Seaman and Karen Cook
Law Foundation Trustee Deborah Sottosanti is trying her luck Law Foundation Trustee John Miravich (L) with Ron Williams SEATED AT LEISAWITZ HELLER TABLE (L-R): Ken Millman, Bill Blumer, Fred Nice, Allen Shollenberger, BCBA President and Law Foundation Trustee Jesse Pleet, YLS President Thad Gelsinger and Ben Leisawitz Dan Rabenold, Christin Kochel and Metro Bank’s Dale-Ann Farina STEVENS & LEE TABLE (L-R): Craig Hirneisen, Tom Work, Joanne Judge, Executive Vice President of Diakon Lutheran Social Ministries Scott D. Habecker and Past BCBA Presidents Dan Huyett and Tom Bell
30 | Berks Barrister
Law Foundation President John J. Speicher with BCBA President-Elect Jill Gehman Koestel (C) and Foundation Trustee Franki Aitken (R)
Wynton Marsalis
Yolanda Adams
Incognito
James Hunter Six
April 10-19, 2015 Reading, PA
Dave Koz
Terell Stafford
Spend 10 jazz- and blues-filled days and nights in the Greater Reading area! Over 120 scheduled events, plus great shopping and dining in one area, make the 25th annual Boscov’s Berks Jazz Fest your perfect spring getaway. For tickets, call Ticketmaster toll free at 1-800-745-3000 or visit www.ticketmaster.com to order online.
Boney James
Brian Culbertson
JAZZ AT LINCOLN CENTER ORCHESTRA WITH WYNTON MARSALIS • DAVE KOZ • INCOGNITO • BRIAN CULBERTSON • DIANNE REEVES • BONEY JAMES • PIECES OF A DREAM MINDI ABAIR & THE BONESHAKERS WITH SWEETPEA ATKINSON • THE SOUL OF JAZZ FEATURING JEFFREY OSBORNE, NAJEE, MAYSA, NICK COLIONNE, GERALD VEASLEY, BRIAN SIMPSON NEW YORK VOICES AND THE READING POPS ORCHESTRA • BILLY COBHAM ‘SPECTRUM 40’ BAND FEATURING DEAN BROWN, GARY HUSBAND, RIC FIERABRACCI • GERALD ALBRIGHT GOSPEL ACCORDING TO JAZZ CELEBRATION: KIRK WHALUM, YOLANDA ADAMS, KEVIN WHALUM, JOHN STODDART AND THE DOXA GOSPEL ENSEMBLE • MARC ANTOINE • ALEX BUGNON STRINGS ATTACHED FEATURING LARRY CORYELL, JIMMY BRUNO, VIC JURIS, JACK WILKINS, JOE COHN • PHILADELPHIA JAZZ ORCHESTRA DIRECTED BY TERELL STAFFORD REMEMBERING JOE SAMPLE: BOBBY LYLE, WILTON FELDER, RAY PARKER JR., JEFF BRADSHAW, NICHOLAS SAMPLE, LIONEL CORDEW, LIZ HOGUE • BRIAN BROMBERG NICK COLIONNE • JAZZ ATTACK: RICK BRAUN, PETER WHITE, EUGE GROOVE, ELLIOTT YAMIN • MARION MEADOWS • PAUL TAYLOR • JAZZ FUNK SOUL: CHUCK LOEB, JEFF LORBER, EVERETTE HARP • FOURPLAY: BOB JAMES, NATHAN EAST, HARVEY MASON, CHUCK LOEB • KIND OF NEW: JASON MILES, INGRID JENSEN, RAY RODRIGUEZ, MIKE CLARK, JERRY BROOKS PLUS SPECIAL GUESTS LIONEL LOUEKE, GARY BARTZ • PAT MARTINO TRIO WITH PAT BIANCHI, CARMEN INTORRE • LIVE AT THE FILLMORE: TRIBUTE TO THE ORIGINAL ALLMAN BROTHERS • URBAN JAZZ COALITION • TOMMY KATONA & TEXAS FLOOD • FRANK VIGNOLA & VINNY RANIOLO • THE JOST PROJECT: TONY MICELI, PAUL JOST, KEVIN MACCONNELL, ANWAR MARSHALL • ROYAL SOUTHERN BROTHERHOOD FEATURING DEVON ALLMAN, CYRILL NEVILLE, CHARLIE WOOTEN, YONRICO SCOTT, BART WALKER • JAMES HUNTER SIX • MIKEY JUNIOR BAND • ANDREW NEU WITH CAROL RIDDICK, DAVID P STEVENS • DANCE HALL DOCS FEATURING BRENT CARTER • THE UPTOWN BAND FEATURING ERICH CAWALLA & JENIFER KINDER GREG HATZA & TIM PRICE ORGAN QUARTET • PAT TRAVERS BAND • CRAIG THATCHER BAND • THE ORIGINAL GROOVEMASTERS • REGGIE BROWN AND BUNCH A FUNK THE ROYAL SCAM • DJANGOHOLICS ANONYMOUS: JOSH TAYLOR,CHRIS HESLOP, BILL NIXON, MICHAEL NIKOLIDAKIS, TREY LARUE • SAX SUMMIT: NATHAN BELLOTT, SETH EBERSOLE, ANDY MOHLER, GREG WILSON • RANDY HANSEN • CELEBRATE SINATRA: LOU DOTTOLI AND THE SOUNDS OF SUNNYBROOK DANCE BAND • U.S. ARMY JAZZ AMBASSADORS AND MORE!*
berksjazzfest.com * LINEUP AS OF 11/26/14. SUBJECT TO CHANGE
PROUD SPONSOR OF THE BOSCOV’S BERKS JAZZ FEST
Follow us on Twitter @berksjazzfest
Serving Clients and Our Community Maggs & Associates Wealth Management
985 Berkshire Boulevard Wyomissing, PA 19610 Phone: 610.320.5462 E-mail: mark_maggs@ml.com www.fa.ml.com/maggs
Maggs & Associates has been helping affluent individuals and families develop customized long-term wealth management strategies since 1993. Our team members possess advanced training and academic and professional credentials—including the CERTIFIED FINANCIAL PLANNERTM (CFP®), Certified Investment Management Analyst® (CIMA®) and Chartered Retirement Planning Counselor SM (CRPC®) designations—which enable us to address the different aspects of your financial life, from investments and wealth transfer, and through Bank of America, home financing and philanthropic desires. Even more important, we have substantial experience that we bring to bear in developing strategies to address your unique needs. We are honored that so many of the clients we work with have been with us for years. We enjoy working with and spending time with them, deepening our understanding of their lives. We also volunteer with and serve on the boards of many of the same local organizations. Reflecting our shared commitment to the community in which we live and work, team members are proud to support nonprofit organizations within Berks County not only financially but also with their time, talents and ideas. Our goal is to be good neighbors and cultivate relationships with all generations of the families we serve, being there for them through every life event, every triumph and every transition.
Merrill Lynch Wealth Management and the Bull Symbol are trademarks of Bank of America Corporation. Certified Financial Planner Board of Standards Inc. owns the certification marks CERTIFIED FINANCIAL PLANNERTM , CFP® (with plaque design) and CFP® (with flame design) in the U.S., which it awards to individuals who successfully complete CFP Board’s initial and ongoing certification requirements. Investment Management Consultants Association (IMCA®) is the owner of the certification marks CIMA® and Certified Investment Management Analyst®. Use of CIMA® and Certified Investment Management Analyst® signifies that the user has successfully completed IMCA’s initial and ongoing credentialing requirements for investment management consultants. Chartered Retirement Planning Counselor SM and CRPC® are registered service marks of the College for Financial Planning. Merrill Lynch Wealth Management makes available products and services offered by Merrill Lynch, Pierce, Fenner & Smith Incorporated (MLPF&S) and other subsidiaries of Bank of America Corporation. Banking products are provided by Bank of America, N.A., member FDIC and a wholly owned subsidiary of Bank of America Corporation. Investment products: Are Not FDIC Insured
Are Not Bank Guaranteed
May Lose Value
MLPF&S is a registered broker-dealer, member SIPC and a wholly owned subsidiary of Bank of America Corporation. © 2014 Bank of America Corporation. All rights reserved. MLWM-14-02523_local ad ARTWT4FC
10/2014