A Different Kind of 3L Year
SAME-SEX MARRIAGE I N
P E N N S Y LVA N I A
Berks County Civil
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The Official Publication of the Berks County Bar Association
BOARD OF DIRECTORS
G. THOMPSON BELL, III, President JESSE L. PLEET, President-Elect JILL GEHMAN KOESTEL, Vice President JAMES M. SMITH, Secretary EDEN R. BUCHER, Treasurer KAREN H. COOK, Director ALISA R. HOBART, Director ELIZABETH A. MAGOVERN, Director HONORABLE TIMOTHY J. ROWLEY, Director GEORGE A. GONZALEZ, Director PETER F. SCHUCHMAN, Director EUGENE ORLANDO, JR., Past President JASON A. ULRICH, 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
Same-Sex Marriage in Pennsylvania
New Pennsylvania CLE Rules for 2015
Berks County Civil Electronic Filing System
Tribunals & Tarantulas A Different Kind of 3L Year
Bringing Order to the Lives of the Poor
The Huyetts Take the Lead
Highlights: Case Management in the Eastern District Law Day Celebrated BCBA Spring Meeting BCBA Picnic Bench-Bar Conference
RAINY LEONOR-LAKE, Community Outreach Coordinator Eric J. Taylor, Law Journal Editor Roarke Aston, Law Journal Assistant Editor Matthew M. Mayer, Barrister Editor
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President’s Message G. Thompson Bell, III, Esquire, 2014 President
n his inaugural column in The Pennsylvania Lawyer, PBA President Frances O’Connor wrote: “As I begin my term as the 120th President of the PBA, I acknowledge the difficulties we face as an association. Rising dues, declining membership and lack of relevance are only some of the items I am told we need to address.” Fortunately, the BCBA does not suffer from these same difficulties. To the extent its dues have risen in the last several years, the increase is primarily the result of increases in PBA’s dues which we must pass on to our members. Our membership is increasing, as we retain a very high percentage of our members and continue to attract new members. And, while we can always do better, there is little doubt that the BCBA’s social events, seminars, conferences, sections, pro bono and lawyer referral programs, activities that support the community, and programs to increase access to the courts are very relevant to our members. However, President O’Connor’s statement is a warning of problems the BCBA certainly could experience in the future if we do not pay close attention to the needs of our members and continue to make membership valuable. One of the keys to assuring the ongoing value of membership is strategic planning. In 2011, under the leadership of then President Jill Scheidt, the BCBA embarked on a strategic planning process.
The Berks County Bar Association was a primary sponsor of the BCPS/Berks Connections Softball Tournament held on June 7, 2014. Tom always makes a good pitch.
The result of that process was a strategic plan for 2012, 2013, and 2014. The plan identifies six goals, with action steps designed to achieve each of the goals. Each action step involves the creation or enhancement of a BCBA program or activity. The six goals are: 1. Continue to offer exceptional benefits and resources that are essential to practice in Berks County. 2. Enhance communications regarding BCBA members, programs and volunteering opportunities. 3. Raise the visibility of the BCBA in the community and the value of hiring a lawyer.
4. Ensure the BCBA’s financial stability and effective operations. 5. Preserve the integrity of the court system. 6. Advance the BCBA’s strategic plan. No doubt many of you have been part of organizations that have spent considerable time on strategic planning only to have the strategic plan sit on a shelf gathering dust. Goal six was intended to prevent that from happening in the case of the BCBA’s strategic plan by including action steps for monitoring and, when appropriate, modifying the plan. continued on next page
Berks Barrister | 1
President Bell was one of the Berks representatives to the PBA House of Delegates meeting in May. During the meeting, Louis F. Del Duca, professor of law emeritus of the Dickinson School of Law, was awarded the Pennsylvania Bar Medal, the highest honor conferred by the PBA. For 45 years, Del Duca has served as editor of the Pennsylvania Bar Association Quarterly. A picture of the Professor with his former students present for the House meeting included not only President Bell, but also Joan London, serving as a delegate representing the Municipal Law Section, and Berks Executive Director Don Smith.
It worked. Many of the BCBA’s programs and activities over the past two and a half years are the result of the strategic plan. The Safe Ask program, the New Member Liaison program, the Solo and Small Practice Conference, the current BCBA website, and the newly created Minority Bar Section are a few examples of current programs and activities that are a direct result of the strategic plan. But time flies and the three years covered by the current plan will end at the end of 2014. We have begun the process of developing a new strategic plan that will guide the BCBA in the next few years. We need your help to maximize the success of the next strategic plan. In 2011, the first step in the process was a survey in which all members were invited to participate. Many members provided input through the survey and the survey results were one of the two guide stars for the ultimate plan. We intend to start with a similar survey this time around and your participation in the survey will be crucial to designing a plan that will help the BCBA to maximize the value it delivers to you. We know that some of the Association’s objectives have not changed since the current strategic plan was put in place, but some of them undoubtedly have. Please take the time to participate in the survey so that the strategic plan will best reflect how the BCBA should be using its resources to serve its members and the community.
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It should be noted that the other guide star for the existing plan was the BCBA’s mission statement, and it certainly will be again. As a reminder, the BCBA’s mission statement is:
The mission of the Berks County Bar Association is to support the legal profession by promoting professional excellence, encouraging collegiality and exercising advocacy on its behalf. The Association also strives to support the community by publishing the Berks County Law Journal, providing educational programs for the public, assuring access to justice and protecting the integrity of the legal system in Berks County. The mission statement requires us to be mindful of three constituencies: the legal profession, the public, and the legal system. As an Association, we must never become stagnant. We must continually examine what we do and make called-for modifications to take into consideration changes to the socioeconomic, legal, technological and other factors that impact these three constituencies. Hopefully, with your input, the BCBA’s next strategic plan will be a roadmap for maximizing the Association’s value to its members, the community and the courts.
SAME-SEX MARRIAGE I N
P E N N S Y LVA N I A
n May 20, 2014, the United States District Court for the Middle District of Pennsylvania became the 19th federal district court to overrule its state’s ban on same-sex marriage. Whitewood v.Wolf, U.S.D.C., M.D, Pa., Civil Action No. 13-1861-JEJ. The order took effect immediately, and no appeal followed. The Whitewood decision followed the June 26, 2013 decision of the United States Supreme Court in Windsor v. United States, concerning 133 S. Ct. 2675 186 L. Ed. 2nd 808 (2013), Section 3 of the federal Defense of Marriage Act, 1 U.S.C. §7. Whitewood has the effect of extending both state and federal spousal benefits to same-sex spouses. This article will briefly outline some of the most important effects of Windsor and Whitewood on same-sex couples residing in Pennsylvania. Limitations on the length of this article will not permit a full discussion of those effects. 1. Divorce. Prior to Whitewood, same-sex couples married in another state but residing in Pennsylvania were unable to obtain a divorce in Pennsylvania, i.e., no recognized marriage – no divorce. As a result of Whitewood, same-sex spouses will be entitled to the same privileges as opposite-sex spouses are under the Divorce Code. Those privileges include the enforceability of pre-nuptial agreements and post-nuptial agreements, alimony, and the entitlement to equitable distribution of
By Thomas W. Beaver, Esquire marital property. 2. Tenancy-by-the-Entireties. Tenancy-by-the-entireties is a special form of property ownership reserved solely to “husband and wife,” under Pennsylvania decisional law. See, In re Gallagher’s Estate, 352 Pa. 476, 43 A.2d 132 (1945); and Teacher v. Kijurina, 365 Pa. 480 at 487, A.2d 197; 1950 Pa. LEXIS 484, citing Thornton v. Pierce, 328 Pa. 11, 16, 194 A. 897 (1937). The use of “husband and wife” in these cases creates some uncertainty as to its applicability to same-sex spouses despite Whitewood. Nevertheless, I believe that tenancy-by-the-entireties will extend to same-sex spouses based upon equal protection and due process rights. 4. State Income Tax Treatments. The Pennsylvania Department of Revenue has ruled that a surviving spouse may file a joint return for the year in which his or her spouse died, if the joint return could have been filed if both spouses were living for the entire taxable year. 5. Inheritance Tax Relief. As a result of Whitewood, upon the death of one same-sex spouse, the surviving spouse will be entitled to: (i) the zero percent (0%) spousal inheritance tax rate; (ii) the right to elect against the deceased spouse’s will; (iii) the right to inherit from a spouse who dies intestate; (iv) the right to appointment to administer an intestate spouse’s estate; and (v) right to claim the family exemption. 6. Realty Transfer Tax Exemptions. The Pa. Realty Transfer Tax exempts
Federal District Judge John E. Jones, III authored the opinion in Whitewood v. Wolf
transfers from taxation between: (i) a “husband and wife;” and (ii) the spouse of a deceased sibling or lineal descendant of the transferor. These exemptions are now available to same-sex spouses. However, clause (ii) is qualified by the language in the statute, exempting transfers to “a child and the spouse of the child, unless the child is deceased and the child’s spouse has remarried.” or “… “An individual and the individual’s sibling’s spouse, unless the sibling is deceased and the sibling’s spouse has remarried.” i.e., if the “spouse” is not remarried, is a transfer to that non-remarried spouse entitled to the exemption? 7. Spousal Testimonial Privilege, Confidentiality. Same-sex spouses will now be entitled in a criminal action to the waivable privilege “not to testify against his or her then lawful spouse[.]” (42 Pa.C.S.A. § 5913), and the evidentiary rule that “neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other.” (Id., § 5914). These same rights apply in a civil action against testifying against one’s spouse, 42 Pa. Cons. Stat. § 5924, and testifying about confidential communications, Id., § 5923. 8. Federal Income Tax. U.S. Treasury Revenue Ruling 2013-17 has expanded the more than 200 provisions in the Internal continued on next page
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Revenue Code and Treasury Regulations to apply to same-sex spouses: 1. For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” include an individual married to a person of the same sex if the individuals are lawfully married under state law, and the term “marriage” includes such a marriage between individuals of the same sex. 2. For Federal tax purposes, the Service adopts a general rule recognizing a marriage of same-sex individuals that was validly entered into in a state whose laws authorize the marriage of two individuals of the same sex even if the married couple is domiciled in a state that does not recognize the validity of same-sex marriages. 3. For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” do not include individuals (whether of the opposite sex or the same sex) who have entered into a registered domestic partnership, civil union, or other similar formal relationship recognized under state law that is not denominated as a marriage under the laws of that state, and the term “marriage” does not include such formal relationships. 1 Rev. Rul. 2013-17 applies “prospectively as of September 16, 2013.”2 It also applies retroactively in certain situations: a. for the purpose of filing original returns, amended returns, adjusted returns, or claims for credit or refund for any overpayment of tax resulting from these holdings, provided the applicable limitations period for filing such claim under section 6511 has not expired.” 3 b. “with respect to any employee benefit plan or arrangement or any benefit provided thereunder only for purposes of filing original returns, amended returns, adjusted returns, or claims for credit or refund of an overpayment of tax concerning employment tax and income tax with respect to employerprovided health coverage benefits or fringe benefits…based on an individual’s marital status.”4 c. subject to forthcoming guidance, “other employee benefits and employee benefit plans and arrangements.”5 9. Pensions. Following Windsor, the U.S. Department of Labor issued Technical Release No. 2013-04: “Guidance to Employee Benefit Plans on the Definition of “Spouse” and “Marriage” under ERISA and the Supreme Court’s Decision in United States v. Windsor.”6 Tech. Rel. No. 2013-04 explained that the Department would apply the Windsor decision to mean: the term “spouse” will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages.(2) Similarly, the term “marriage” will be read to include a same-sex marriage that is legally recognized as a marriage under any state law.7 This interpretation has widespread effect for ERISAcovered pension and welfare benefit plans under the Employee Retirement Income Security Act of 1974 (“ERISA”).8 ERISA plans may now provide that: (1) a surviving same-sex spouse must be treated as the primary beneficiary of the participant’s plan accounts unless the spouse consents to the designation of
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another beneficiary in writing; (2) surviving spouses of same-sex participants in tax-qualified and other types of plans are entitled to receive pre-retirement survivor benefits under the plans if the employee dies prior to commencement of benefits; (3) spouses of same-sex participants in certain plans are entitled to share in the participant’s retirement benefits through a joint and survivor annuity unless the spouse elects to waive that protection; (4) under certain types of plans, participants now may not borrow against their plan benefits without the written consent of their same-sex spouses; (5) hardship withdrawals by participants from 401(k) and 403(b) plans may now take into account certain expenses (such as medical, tuition and funeral expenses) of same-sex spouses; (6) a participant’s benefits under tax-qualified and other ERISA-covered plans may now be transferred to a same-sex spouse under a qualified domestic relations order if the participant and spouse divorce; and (7) a same-sex spouse who receives plan distributions upon the participant’s death may now roll over that distribution to his or her own IRA or a qualified retirement plan. 10. FMLA. Shortly after Windsor, the Department of Labor posted a revised FMLA Fact Sheet9 that officially declared that the Department’s definition of “spouse” under the Family Medical Leave Act (“FMLA”) includes same-sex spouses where an individual resides in a state that recognizes same-sex marriage. As a result of Whitewood, this position now applies to same-sex spouses residing in Pennsylvania. Thus, a spouse of an eligible same-sex employee working in another state that does not recognize same-sex marriage will be entitled to FMLA benefits. These benefits include the right to leave: (1) to care for the employee’s spouse who has a serious health condition; (2) due to qualifying exigencies arising from the military deployment of an employee’s spouse to a foreign country; and (3) for an eligible employee may also take up to 26 workweeks of FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness if the employee is the spouse of the service member (military caregiver leave). The White House recently announced that it will instruct the Department of Labor to prepare a new FMLA rule10 that will entitle the spouse of a same-sex partner to the same benefits spouses of opposite-sex partners are already entitled to. A Notice of Proposed Rulemaking by the Department was published on June 27, 2014 (79 FR 36445). 11.Social Security. Social Security now recognizes samesex marriages for purposes of determining entitlement to or eligibility for benefits, including retirement, surviving spouse and lump-sum death payment claims for same-sex couples, and paying benefits where they are due.11 SS benefits available to same-sex “couples” include: a. A surviving spouse of a worker entitled to Social Security retirement or disability benefits may be entitled to receive retirement benefits based on the deceased spouse’s earning record; b. For retired married couples, a person whose calculated
Social Security benefit is lower than that of his or her spouse may take half of his or her spouse’s higher benefit, rather than receive the amount calculated from his own earnings. c. A surviving spouse gets $255 from the federal government to help pay for funeral arrangements. 12. Health Insurance. On March 17, 2014, the Department of Health and Human Services announced that, “starting next year, if an insurance company offers coverage to opposite-sex spouses, it cannot choose to deny that coverage to same-sex spouses.” In other words, insurance companies will not be permitted to discriminate against married same-sex couples when offering coverage.12 13.Veterans’ Benefits. In its Memorandum of August 13, 2013, retroactive to June 26, 2013, the Department of Defense announced that “… it is the Department’s policy to treat all married military personnel equally. The Department will work to make the same benefits available to all spouses, regardless of whether they are in same-sex or opposite-sex marriages, and will recognize all marriages that are valid in the place of celebration.” The effect of this decision is to extend the following rights to veterans’ same-sex spouses: a. the right to be buried alongside their spouse in a national cemetery; b. up to three years and nine months of education benefits for the same-sex spouse of a service member who becomes
permanently and totally disabled due to either a permanent serviceconnected disability or a 100% permanent service-connected disability compensation rating; c. eligible service members on active duty can transfer their unused Post-9/11 educational benefits to their spouse; d. health care benefits through the VA program are available to a service member’s same-sex spouse if the service member is permanently and totally disabled due to unemployability or a service-connected disability; e. a surviving same-sex spouse of a service member may be eligible for a monthly cash benefit for either, but not both: (i) dependency and indemnity compensation, or (ii) death pension; f. reimbursement for burial expenses, burial in a national cemetery, and bereavement counseling for a surviving same-sex spouse of a service member who dies while serving on active duty or after release from duty; g. the VA’s home loan guarantee program to get a mortgage without a down payment or private mortgage insurance (PMI); h. an increase in the monthly cash benefit for the same-sex spouse of a veteran who is receiving service-connected disability insurance; 14. Immigration. Binational couples may sponsor partners for U.S. residency. 13 continued on next page
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Berks Barrister | 5
New Pennsylvania CLE Rules for 2015 By Mark A. Kearney, Esquire
he April compliance deadline for CLE credits has passed and attorneys with that deadline may have put their CLE requirement out of mind for another year. Recent changes to the CLE Rules make that a bad strategy. In January, the Supreme Court made
these two changes: • Attorneys are now required to have at least two (2) ethics credits every year; • Attorneys have permission to use up to six (6) distance education credits to satisfy the annual 12 credit requirement. Both changes became effective for CLE compliance periods beginning May 1, 2014, which means that the increased ethics requirement will be enforced for compliance periods ending on April 30, 2015. Beware! After 20 years of satisfying the requirement with one (1) ethics credit, it will be easy for attorneys to find themselves out of compliance with the ethics credit responsibility next April and through the remainder of 2015. Many CLE courses include one hour of ethics training related to that field of practice. PBI offers a group of one hour ethics courses near the end of each compliance period under the title Ethics Potpourri. Keep the new rule in mind to avoid getting an unpleasant reminder and possible fine after your 2015 deadline. The distance education changes offer 24/7 convenience in meeting the CLE requirement, but there is a nuance in that change, too. “Distance education” credits, as defined by the CLE Rules, do not, like other credits, carry over to subsequent years. For example, an attorney who viewed 6 hours of CLE from PBI’s Online Campus before her deadline in 2014 will not be able to count 2 of those credits toward either her 2014 or 2015 requirement. PBI simulcasts to the Berks County Bar Association and other facilities around the Commonwealth are not subject to the “cap” on distance education credits. They combine the convenience of local programming with the quality instruction by statewide experts. Time spent in these outstanding seminars will help satisfy your full 12 credit requirement and can be carried forward to two future years. Live webcasts, viewed on an attorney’s own computer at his office or home, on the other hand, are subject to the six credit cap. CLE “bundles” available from some national online providers may offer so many credits that will not be available to satisfy the Pennsylvania CLE requirement. Editor’s Note: Mark A. Kearney is the managing shareholder of the Montgomery County law firm of Elliott Greenleaf and the President of the Pennsylvania Bar Institute. Mr. Kearney was recently nominated by President Obama to a seat on the bench of the Federal District Court for the Eastern District of Pennsylvania.
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SAME-SEX MARRIAGE I N
P E N N S Y LVA N I A continued from page 5
15. Spouses of Federal Employees. On June 28, 2013, the United States Department of Personnel Management issued its “Memorandum for Heads of Executive Departments and Agencies,” providing “Guidance on the Extension of Benefits to Married Gay and Lesbian Federal Employees, Annuitants, and Their Families.” These include health insurance, life insurance, dental and vision care, long term care, retirement, and flexible spending account. Conclusion. Throughout the history of the United States, perhaps drawing upon the right to life, liberty, and the pursuit of happiness in the Declaration of Independence, and the guaranties of equal protection and due process under the Fifth and Fourteenth Amendments to the US Constitution, slavery was abolished, women won the right to vote, child labor was abolished, and discrimination in employment, housing, public accommodation, education, and other public arenas was banned. These are a few examples of Victor Hugo’s inspiring statement that “Nothing is stronger than an idea whose time has come” (literally, “One withstands the invasion of armies; one does not withstand the invasion of ideas”).14 Windsor, Whitewood, and the increasing number of other federal court decisions overturning various state same-sex marriage bans unquestionably demonstrate that the right of same-sex partners to enjoy the benefits of marriage is an unstoppable idea whose time has come, because it will further enrich equality of rights and the quality of life throughout our nation and society. Editor’s Note: Thomas W. Beaver, Esquire, is with the Wyomissing law firm of Rabenold, Koestel,Goodman & Denaro. 1. Revenue Ruling 2013-17, pp. 12-13. 2. Ibid. p. 13. 3. Ibid.
4. Ibid. p. 14. 5. Ibid.
6. September 18, 2013
7. U.S.Dept. of Lab. Tech. Rel. No. 2013-04. September 18, 2013. 8. 29 U.S.C. § 1200.
9. Fact Sheet #28F: Qualifying Reasons for Leave under the Family Medical Leave Act. August 13, 2013
10. See “Obama Extends Family Leave Rights To Gay Spouses In Non-Equality States.” By Carlos Santoscoy
Published: June 20, 2014, Gayopolis.
11. Social Security Administration. SSA Publication No. 05-10567 , May 2014.
12. “Making Health Care Coverage More Accessible and Equitable For Same-Sex Couples.” Department of Health and Human Services, March 14, 2014.
13. U.S. Department of State, “ FAQs for Post-Defense of Marriage Act.”
14. Histoire d’un Crime (“History of a Crime”), Victor Hugo, written 1852, published 1877.
Berks County Civil
Electronic Filing System
fter much planning, developing and testing, the Berks County Civil Electronic Filing System (EFS) is scheduled to be available for Berks County attorneys to begin electronically filing civil and family court documents on Monday, August 4, 2014. Advance Registration is open now! Go to the Court or Prothonotary’s page on the Berks County website at http://www.co.berks.pa.us for the link. The main EFS web page also contains an EFS User Guide, FAQs, and a link to the Berks County Rules of Civil Procedure and Berks County Rules of Judicial Administration. Training: Trainings sessions for the EFS began on July 14th and are scheduled through September 22nd. These three hour sessions are being held at the Bar Association for attorneys and their assistants and qualify for three (3) CLE credits. The training includes an overview of the project and the electronic filing rules, a computer-projected demonstration of how to register as a user and how to file initial and subsequent civil and family court documents, where to find on-line help resources, and information about future phases of this multi-phase project. The computerprojected demonstration walks users through the screens that they will use to register as an EFS user, the log-in screen and the screens they will use to electronically file civil and family court documents. Practice tips are given throughout the training sessions and questions are encouraged. Please go to the Bar Association website at http://www.berksbar.com and log-in to see the remaining training dates and to sign-up. Every attorney who practices civil or family law and their assistants should attend one of these sessions.
Above: Screen shot of the Civil EFS home page with the current system messages in the middle and the dashboard tabs across the top.
Timeline: The EFS project has been a collaborative effort involving the Court, the County, the Prothonotary’s Office and the Bar Association. The current timeline is to allow Berks County attorneys to electronically file civil and family documents beginning August 4th, to allow all PA attorneys to begin electronically filing on August 18th, to allow self-represented litigants to begin electronically filing at some future point and to mandate that all civil and family documents be electronically filed by October 6, 2014. Future EFS components are expected to be ready in 2015. Please keep in mind that initially, the system will mainly be only electronic filing. Interim business processes will be in place in the Prothonotary’s Office to print out your electronically filed documents until the Judicial Portal is in place that will allow your electronically filed documents to flow to, through and from the Court electronically. Please be patient with the Prothonotary’s staff and the Court while we all adapt to a new way of filing, accepting and processing civil and family court documents, particularly at the beginning when filings will still be being received across the counter and through the mail in addition to electronically. Future E-Filing Components: In addition to a Judicial Portal which will allow the Judges to electronically handle civil and family court documents, other future phases of the EFS project include electronic service in collaboration with the Sheriff ’s Department, the electronic filing of Protection from Abuse documents, and other EFS system enhancements. The Judicial Portal is already in development so that interim business processes will only need to be in place for a limited amount of time before we can transition to a paper on demand system where hard copy case files are no longer being created by the Prothonotary’s Office. We expect that the Court and Prothonotary’s staff will all be using an electronic work queue to handle civil and family court documents in 2015. Information about the Judicial Portal and the other future components of the EFS will be provided as they are closer to implementation. Questions: If you have any questions about the Civil EFS project, please send an e-mail to CivilEFS@countyofberks.com or call 610-898-5565 and your question will be directed to the proper person to respond.
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A Different Kind of 3L Year By Susanna Fultz, Esquire
Care for a serving of tarantulas?
he offer of a crispy tarantula to eat was not a scenario I had envisioned while applying to law school. Yet, as a third year law student, I found myself at a dusty roadside market in rural Cambodia with small Khmer children vying for my attention and my money. They promised me tarantula was delicious, but, if I didn’t like it, I could try a handful of fried red tree ants instead. I declined both – I am not that adventurous of an eater. So how did I get from Lexington, Virginia – home of Washington & Lee University School of Law (W&L) – to a rural village several hours from the Cambodian Capital of Phnom Penh? It was part of my participation in a unique international clinic offered as one option of W&L’s new third year curriculum. Instead of traditional classes, third year students must participate in a two week skills immersion program each semester, a professionalism course and four elective clinics/practicums, one of which must involve a real client experience. There is also a forty hour law-related service requirement. These innovative changes in the curriculum aim to prepare law graduates to practice from day one, through intensive skill
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Our author enjoying an Angkor Wat elephant ride
building under the direct guidance of professors and practicing lawyers which allows students to practice law and represent real clients. Students graduate with solid experience and have already begun the transition from the role of law student to lawyer. This clinical preparedness is sorely needed in today’s changing legal market, where the ability to hit the ground running is of great benefit to both the law graduates and whoever hires them. I hope that such a focus on the actual practice of law, professionalism and intensive skill building spreads to other law schools where students can benefit from real experience.
I truly enjoyed taking part in W&L’s program as it allowed me to step out of the classroom and into the real world where I could put the knowledge and skills gained from my first two years to use representing real clients with real problems. Writing a brief for a client struggling to seek asylum, for example, is more edifying and satisfying than writing a mock brief about whether a fictitious character from Blackacre has violated his contractual obligations by selling widgets to someone in Greenacre. Aiding a true client makes an enormous experiential difference. At W&L I was able to choose from over 40 clinics and practicums in fields including but not limited to banking, business planning, tax, intellectual property, patent law, civil litigation, family law and criminal defense. I began my third year with the Citizenship and Immigration Clinic and Trial Advocacy Practicum. In the spring I selected clinics in Human Rights and Transnational Tribunals which complemented my prior internship experience at the United Nations Office on Drugs and Crime in Vienna, Austria. The Citizenship and Immigration Clinic matches law students with immigrants who cannot afford a private attorney. Most clients come from vulnerable populations such as victims of violence and minors. Under the guidance of an experienced immigration attorney I was able to provide direct representation to a young Central American girl seeking asylum from abuse and death threats in her native country. She was shy and frightened but eventually she and her family came to trust me. Through the aid of a translator I was able to learn her story which I used to create an affidavit and later a brief supporting her claim for asylum which was submitted to the Arlington Immigration Court in Virginia. In the course of one semester I spent over 200 hours on her case and it was very moving to be a part of her brave journey recovering from abuse and violence. In the spring I began the two international law clinics which included the opportunity to travel overseas. Although the school did not cover the expenses, our professor was generous enough to help some of the other students make the trip. The clinics were small; there were only four students in the European Court of Human Rights (ECHR) Clinic and three in the Tribunals Clinic. A few had recently returned from a clinic trip to Liberia where they worked with the prison system to promote greater access to justice and others had traveled to Tanzania to conduct human rights fact finding work which are other available clinics in the third year program. In the ECHR clinic, we studied the emergence and current state of European Human Rights jurisprudence, including its possible application in courts outside of its jurisdiction. International conventions, treaties and case law are becoming increasingly relevant in the United States as the United States Supreme Court and other high courts have turned (arguably controversially) to outside sources and international standards concerning high profile issues like capital punishment and torture. To this end, part of the clinic focused on legal research for an American death penalty inmate whose attorney was seeking to appeal his sentence. Our research focused partly on case law from the ECHR, the Inter American Court of Human Rights in Costa Rica and
The Killing Tree inside Cambodia’s Killing Fields
the African Court on Human and People’s Rights in Tanzania in order to bolster the inmate’s petition before the Inter-American Commission on Human Rights, created by the Organization of American States. In these types of cases there appears to be an increased emphasis on demonstrating that capital punishment is cruel and unusual based on evidence of a social and legal consensus among other countries that it should no longer be used. The rest of the time in the clinic was focused on the history and case law of the ECHR which was established by the European Convention on Human Rights (the Convention). Private citizens can enter an application against any member state of the Convention (there are 47 members which make up the Council of Europe, a separate entity from the European Union) alleging that state has violated their human rights under the Convention. Member states may also make an application against another state but that is very rare. If an application is found to be admissible the ECHR can make judgment. We continued on next page
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studied recent cases concerning such rights as freedom of speech, freedom from discrimination and prohibition on torture in conference with law students from Union University School of Law in Belgrade, Serbia. We later traveled to Belgrade where I stayed with a Serbian law student and her family. I attended a lecture at the University and had free time where my hosts showed me around Belgrade, including views of bombed out buildings still standing in ruins from the NATO airstrikes in the 1990s. Seeing this damage and staying with a Serbian family gave me an interesting perspective on the work I was simultaneously completing for my other clinic on Transnational Tribunals. After a few days in Belgrade our clinic traveled with some of the Union students to Strasbourg, France, where the ECHR is located to attend oral arguments in the Animal Defenders International Case v. United Kingdom. The case focused on the UK’s ban on paid political advertisements versus the right to freedom of expression as guaranteed by the Convention. The case was decided one year later in favor of the UK. After Court we had a day of free time to wander around Strasbourg where some other students and I climbed to the top of Strasbourg Cathedral and enjoyed the local French/German cuisine of the Alsace Region. One week later I made the grueling flight to Cambodia as part of my work in the Transnational Tribunals clinic. The clinic focused on both the Extraordinary Chambers of the Courts of Cambodia (ECCC) and the International Criminal Tribunal for the former Yugoslavia (ICTY). My role as a student lawyer involved criminal defense support with the aim of supporting the defendant’s right to a fair trial. Much
A view of Strasbourg, France
of that support came in the form of detailed legal research and analysis, addressing many complicated questions as there is a novelty and inherent difficulty these tribunals face as their history really only begins with the Nuremburg Trials. How do you sentence someone for killing 10,000 people as opposed to 1? What are mitigating and aggravating factors? These questions may provide fodder for an interesting
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Tuol Sleng, the infamous prison in the heart of Phnom Penh
philosophical debate but the reality is that these Tribunals must decide these questions for real defendants involved in horrific crimes. The ECCC was created by an agreement between the government of Cambodia and the United Nations in order to prosecute the leaders of the Khmer Rouge for their involvement in the Cambodian Genocide under international and Cambodian law. The Khmer Rouge, led by Pol Pot, seized power in 1975 amidst the chaos of the neighboring Vietnam War and sought to create a Communist agrarian state completely cut off from the rest of the world. To this end millions of Cambodians were forced from their homes into the fields where they were worked to death or died from starvation on collective farms. Intellectuals, artists, professionals and suspected enemies of the state were systematically tortured and murdered. By the time the Khmer Rouge was toppled in 1979 an estimated 2-3 million people had been killed in the genocide. I was assigned to help the Defense Support Section, particularly in their representation of Kang Kek lew, also referred to as Duch. Duch was a former leader of the Khmer Rouge movement and served as director of Tuol Sleng (S-21), the infamous prison in the heart of Phnom Penh where an estimated 14,000 to 17,000 suspected enemies of the state where taken to be tortured. Some prisoners were murdered on site while others were trucked to the Choeung Ek Killing Fields where they were summarily butchered and thrown into pits. Of all the prisoners brought to S-21, only seven lived to walk free when the Vietnamese Army overran the capital. After escaping the capital, Duch remained in hiding until 1999 when he was discovered and surrendered to authorities. In 2010 he was found guilty by the ECCC of crimes against humanity, torture and murder. Our clinic’s work concerned Duch’s appeal of his life sentence. I researched what factors other international tribunals had considered as mitigating or aggravating circumstances including sentences handed down by the International Criminal Court, the ICTY, the International Criminal Tribunal for Rwanda, the Special Panel for Serious Crimes (East Timor), and the Special Court for Sierra Leone. On the day we attended court at the ECCC, Duch gave testimony against a high ranking leader of the Khmer Rouge. It was disturbing to look into the eyes of someone who
has committed such deplorable crimes, especially since we had toured S-21 and the Killing Fields on the previous day. At S-21 there is still blood on the floors and at the Killing Fields, the bones and clothing of the victims still litter the ground and glass cases contain thousands of human skulls. The trip ended on a happier note however when we traveled north to Siem Reap to view temples at Angkor Wat. My other work for the clinic concerning the ICTY, specifically assisting with the defense case for Radovan Karadžić, was also difficult. Radovan Karadžić was the first president of Republika Srpska and in that role had the power of Commander of the Armed Forces during the Bosnian War. He was indicted by the ICTY for crimes against humanity (persecutions, exportation, murder, etc.), genocide and war crimes. He is alleged to have both personal and command responsibility for these various atrocities. One of the more infamous acts of which he is accused is ordering the massacre at Srebrenica in which more than 7,500 Bosniak men and boys were murdered. I worked for Radovan Karadžić’s defense attorney (Karadžić is actually representing himself with help from American Attorney Peter Robinson), reading thousands of pages of classified evidence, trial documents and prior testimony. My job was to summarize what evidence the prosecution had in order to support the charges against Karadžić for war crimes, crimes against humanity and genocide,
specifically evidence that he knew of or ordered such actions. Karadžić’s defense relies on the premise that he was unaware of and did not order any violence and ethnic cleansing. Karadžić’s trial is currently ongoing at the ICTY in The Hague with closing arguments anticipated this fall. The work in the International Tribunals clinic has indicated to me that I do not see myself assisting clients in criminal defense matters, but the experience and skills I gained through my efforts have proven to be useful assets. Excellent research and writing skills are necessary for any field of law and any type of client so I am all the better prepared thanks to that clinic along with the rest of my experiences in W&L’s practice driven third year program. Whether practicing international or domestic law, I firmly believe that my participation in the various clinics provided invaluable knowledge and skill building to better prepare me for my legal career. I hope that other law schools will follow suit and craft a similar learning experience so their students may benefit from such real world experience. Tarantula and ant tasting is optional. Editor’s Note: Susanna Fultz, Esquire, is a 2012 graduate of the Washington and Lee University School of Law and is the law clerk for the Honorable A. Joseph Antanavage.
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Berks Barrister | 11
Book Review Reviewed by Eugene Orlando, Jr., Esquire
magine you represent a client on death row who is scheduled for execution and for whom you are attempting to obtain a stay. During the course of this representation you learn that a family member with whom you are very close is diagnosed with a virulent cancer and given only a few months to live. As these events are unfolding, you discover too late that a prescription medicine you are giving to your dog has an unknown side effect of organ damage and you learn that your dog is among the “small percentage” of animals for which fatal liver failure is a consequence of the “treatment.” This real life juxtaposition forms the basis of: “Things I’ve Learned From Dying,” by attorney and author David R. Dow. Dow, a practicing Texas death penalty lawyer as well as Professor of Law at the University of Houston Law Center, shares this true life experience and in the process offers some unique perspectives on issues all of us have or will face. First, we are introduced to Dow’s father-in-law Peter, a retired scientist, married father of two children, one of whom is Dow’s wife Katya. We are
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then introduced to 28-year old Eddie Waterman, death row inmate who was 18 years old when another teenage accomplice shot and killed a woman in her bedroom and in a moment of teenage bravado, Eddie then fired a second shot into the woman’s already dead body. He was subsequently convicted of murder for that crime. We are then introduced to Winona, a playful, loving Doberman, exhibiting none of the predatory traits one sometimes ascribes to that breed. The book proceeds on these parallel events and generally alternates between the legal effort to stop Waterman’s execution with the family drama of coming to grips with the fatal diagnoses of melanoma for Dow’s father-in-law. The tone of Dow’s style is simple and factual, letting the events speak largely for themselves, but occasionally punctuating the narrative with things he’s learned at points in the narrative. The relationship between Dow and his father-in-law is far more akin to inter-generational friends than it is a relationship created merely by marriage vows. They are close. Lives they shared
before the fatal diagnoses involved a mutual love of the outdoors and considerable shared time hiking, kayaking, and windsurfing. As the narrative begins, Peter has just retired and shortly learns he has melanoma. Contrary to the unanimous wish of his wife and daughter (Dow’s wife Katya) Peter initially decides not to be treated, perceiving it more important to have a shorter time of higher quality than the prospect of a longer period dealing with the fallout and side effects of the chemotherapy and radiation in light of the certain death that inevitably awaits.
Peter’s daughter Katya is passionate in her belief that her father should fight and take all treatment necessary to “beat the disease” and extend his life. Dow’s narrative guides us through the full range of emotions and perspectives by sharing different conversations he has with each family member in a clean writing style that mostly avoids the temptation to lead the reader to any particular conclusion. When his views are shared he makes the observation with an insight that displays a depth of understanding of the human condition. After sharing a conversation with his father-in-law where the scientific reality of how his condition will end is made clear, he shares a scene describing his wife’s tireless effort in researching the latest techniques and treatments that she wants her father to pursue, convinced they will lead to her father’s restored health. Dow then says: “One thing I’ve learned is that there are times you have to let the people you love hold onto hope the math rules out. To do that you have to pretend not to worry.
Honesty is important but it pales next to support.” The alternating chapters describing the representation of death row inmate Eddie Waterman offer not only an insider’s look at the all too routine execution of Texas inmates, but also the stark contrast in backgrounds between the Dow family experience and the family background of his client. Waterman’s absentee father was a truck driver when he wasn’t in prison. His mother was a crack addict taken away by the police on the day while she attempted to kill Waterman in a drug-induced rage. The closest thing to “family” Waterman knew was his half-sister Hattie who tells us the background on Waterman’s early life. Waterman lived largely on his own from his early teens until his criminal escapades landed him on death row. After listening to Waterman’s half-sister tell his story Dow says: “I knew this story already, but hearing it told by someone who saw it made me dizzy.”
Although the information is presented in a dispassionate writing style without obvious argument, the contrasting facts themselves make their own case. Even for weathered legal veterans, details of the Texas appellate process can be surprising. For instance, in Texas the execution order can and frequently is carried out before the final appeals are even decided. Although the tone of Dow’s writing does not change, there is no doubt where he stands on the efficacy of the death penalty. “Here is something I’ve learned: the death penalty cannot deter crime, and if you want to understand why, all you need to know is that death row inmates are the kind of people who use phones they are not supposed to have to dial up the home number of a state official and interrupt his dinner hour to complain about their treatment.” Dow is adept at fully flushing out the many facets of his subjects in continued on next page
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to the Lives of the Poor By Donald F. Smith, Jr., Esquire
Most attorneys are able to point to another member of the legal profession as inspiring them or having a tremendous influence shaping their career. Lawrence J. Valeriano, Jr., the 2014 Pennsylvania Bar Association Pro Bono Award recipient, points to three: Joseph E. DeSantis, Paul T. Essig and Judge Peter W. Schmehl. Each contributed to making him the respected attorney he is today. None, though, was more imposing—in stature or in spirit—than Mr. DeSantis, as Larry always refers to him, thirteen years after his
death. “I revere him.” Larry joined the DeSantis firm in 1987, as a new graduate of the Dickinson School of Law. “I remember, on day 1, sitting across the desk from Mr. DeSantis and him saying, ‘We don’t worry about this billable hour nonsense. You are a professional lawyer, and we will assume you are doing the work.’” Such thinking had an impact on young Valeriano. “There was no looking over my shoulder; there was respect for my character.” He was not about to disappoint. Today, a principal in the Wyomissing firm of Essig Valeriano, P. C., successor to the DeSantis firm, Larry has a successful general practice “with a special emphasis on estate planning, estate administration and a good amount of family law.” Nevertheless, he makes time for pro bono representation. “I have been tremendously blessed, personally and professionally.” In particular, he points to a blessed family life, growing up and now. He and his wife of 15 years, Sondra, have a five-year-old son, Gianni. However, the Muhlenberg High School and Albright College grad has “come to realize a lot of people are hanging by a thread, having very little.” By representing them, he hopes “to help create some order in their lives.” Carrie Bowmaster, then manager of Reading’s MidPenn Legal Services office, nominated Larry for the award because of his unselfish sharing of his time on behalf of the indigent clients. The Pro Bono Award will be presented at the Pro Bono Celebration on October 21. When speaking of pro bono, of helping those less fortunate, Larry reflects on a statement often uttered by his late mentor. “Mr. DeSantis would be asked by some why he wasted his time on old ladies coming to the office with their papers in a bag, and he would respond: ‘The day I can no longer take a few minutes to help some poor soul is the day I will no longer call myself a lawyer.’” Larry notes, “Participating in pro bono has changed me and has done more for me than the clients. Working pro bono provides me with the opportunity to put my feet on the ground and to stay grounded.” Recently, Larry felt rewarded by winning an unemployment compensation case for a man who “was in very desperate straits,” and by successfully recovering the down payment on a property for a Spanish-speaking woman whose installment sales contract was breached. “She was so grateful.” Over the years, his pro bono work has involved “a lot of custody cases, PFAs and landlord-tenant matters.” In other words, creating order for some poor souls. Mr. DeSantis would be proud.
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continued from page 13
an uncontrived way and at a pace that feels as natural as a conversation. The range of emotions exposed in his talks with his father-in-law, including surprise, anger, disappointment, resignation and sorrow, all have the commonality of human experience which rings true and offers sharp insight. Equally engaging and somewhat surprising is the empathetic revelation and insightful observations involving Waterman. When we are introduced he is polite, understanding of his situation but thankful for Dow’s effort. In his prison environment it is clear he is genuinely liked by all the guards. After ten years behind bars he is no longer the untamed brash 18-year-old “murderer” but rather pleasant and polite. Dow observes: “One thing I’ve learned is that the worst fate that can befall someone who has done something truly horrible is to be forced to face it alone, all day, every day, without excuse, distraction or surcease.” But one thought that this writer found even more insightful than Dow’s was Waterman’s own words when he states: “I’ve been here ten years. No matter how much you change who you are, you can’t change what you done.” As part of their efforts to stay the execution, Dow searches for those who know Waterman and are willing to support the argument that Waterman should be spared as no longer a danger to society. Every prison guard who knew Waterman agreed Waterman should not die, but they were all clearly reluctant to publicly speak up. The much smaller, but poignant thread, in the story line involves Dow’s dog Winona, as much a part of the family as Dow’s own son, Lincoln. The dog succumbs to unexpected liver failure caused by a prescription drug administered to relieve her suffering from another malady. Bad results from a seemingly well-intentioned action add additional depth to the larger issues broached by the book. It is right before taking his dog to the vet for the final time that Dow reflects on the value and importance of his marriage and his son and says without a hint of triteness: “I don’t know if I’ve learned anything more important than to leave nothing unsaid.” Regardless of any personal views on the efficacy of the death penalty or any views on the wisdom of end of life decision making during terminal illnesses, readers will find this book to be an engaging read with some uncommon insight. It is well worth the time. Although the dual narratives hold their own as story lines involving people we come to appreciate and care about, the book’s real value is its unflinching perspective on issues common to all of us. The subtitle of the book is: “A Book about Life” - and so it is. Editor’s Note: Eugene Orlando, Jr. is the Immediate Past President of the Berks County Bar Association and the principal in Orlando Law Offices, P. C. Mr. Orlando has been part of the collaboration with the Berks County Medical Society in providing seminars on End-of-Life Decision Making.
The Huyetts Take the Lead By Christine Spanier
Ellen and Dan Huyett
ike most married couples, Ellen and Dan Huyett share family responsibilities and common interests. The commonalities continue through their education and professional experience — they each earned a law degree, and they worked together for a time at Stevens & Lee. Dan is a Shareholder at Stevens & Lee and currently serves as co-chair of the firm’s litigation department. Now, add one more role the Huyetts share: serving as the 2014 United Way Campaign Co-Chairs. It is clear this couple believes more can be achieved when working as a team than through individual effort. The Huyetts admire that same philosophy as one of United Way’s strengths. “We’ve come to see an amazing level of commitment from all United Way volunteers, from board members and community leaders to employees at area workplaces — all working together to strengthen our community,” says Ellen. Ellen and Dan’s involvement and support of United Way stems from tradition, as well as seeing the impact of United Way’s work. Dan has been involved with United Way in varied capacities for several years. “I need to underscore the tradition established by Sid Kline (past chairman of Stevens & Lee). Sid always believed in community involvement and was a terrific United Way supporter. He set the bar in many ways, and I’m honored to follow in those footsteps,” explains Dan. Sid Kline led the 1987 United Way campaign efforts. Like Sid, Dan is a past president of the Berks County Bar Association. In past years, Ellen was integral to the launching of “Baby University,” a United Way funded program supporting early
childhood development through parenting classes and home visits. She helped teach parenting classes and her fluency in Spanish proved instrumental in translating materials and instructional activities. Ellen was presented with United Way’s June Roedel Legacy of Commitment Award in 2007 in recognition of her dedication to this program. Currently, Ellen and Dan serve on the organization’s board of directors. “Through all of Ellen and Dan’s commitment to both the community and United Way, they were destined to take on the key role of campaign co-chairs. Their passion for making a difference made it a natural fit,” shares Tammy White, president, United Way of Berks County. “We’re fortunate to have their leadership as we embark on this year’s campaign and raise funds to help meet critical community needs.” “United Way has a great history and tradition in our community, and the volunteers and prior co-chairs are terrific. We’re flattered to be a part of that group,” says Dan. United Way works with and funds programs at 32 agency partners to tackle issues within the focus areas of education, income, health and safety net services, as well as manages initiatives like Ready.Set.READ! which is designed to improve early grade reading proficiency. More than 100,000 local people benefit from United Way programs each year. Its mission statement is: United Way of Berks County improves lives
by inspiring collaboration, volunteerism and financial support to build a stronger community.
“During the past few months, we’ve had the opportunity to learn even more about United Way’s work by visiting agency partners,” says Ellen. “For example, we recently toured Threshold Rehabilitation Services and had a first-hand look at the work accomplished, the clients served and the depth of what they do,” said Ellen. “We are impressed with how United Way identifies community needs,” says Dan. Ellen adds the organization’s efficiency is to be commended. “United Way has processes in place to ensure dollars are well spent and directed to local needs.” United Way’s 2014 campaign begins on September 4 and continues through November 20. More than $9.3 million was raised in the 2013 campaign. “We’re looking forward to working with many volunteers, including the Loaned Campaign Specialists,” notes Ellen. “It will be great to see how everything comes together.” Dan adds, “Through this role, I continue to see how generous Berks County is. There is a great deal of support, both financially and through volunteerism, from everyone — ranging from company leadership to employees at all levels. People want to help build a stronger community. Editor’s Note: Christine Spanier is the Marketing/ Communications Director for the United Way of Berks County.
Berks Barrister | 15
BACK AFTER LABOR DAY By Francis M. Mulligan, Esquire
cemetery the firm represented had been sued over a burial. New territory for me in 1980. I went to the books. I found a case which interested me. It had nothing to do with the lawsuit I was actually researching. I recognized the name of the plaintiffs— Papieves. My high school classmate Bob Kane brought the name to my attention in 1965. Naturally, I read the Pennsylvania Supreme Court decision in Papieves et ux v. Kelly and Lawrence, 263 A2d 118 (Pa Supreme 1970). The lawyers in Delaware County didn’t give Mr. Justice Pomeroy enough of the sad facts to write a better opinion. Pomeroy, with the minimal stipulation of facts presented, came to the right result. Here’s the story the way I heard it from Officer Kane. Kelly and Lawrence, recent high school grads, didn’t seem to have a care in the world. One of them would be going to Penn State Main after Labor Day. The second young man enlisted in the army, and waited at home for his basic training orders. The rookie Marple Township police officer knew that his time in the Township would be coming to a close. The police chief told him not to bother Kelly and Lawrence. The two boys knew the Officer had been told to lay-off. Cop jobs in a peaceful upper middle class Delaware County suburb weren’t easy to come by. But, the rookie cop had another concern. The Greek boy Kelly and Lawrence befriended walked off the planet. They didn’t seem too concerned. Identical statements came out of their mouths. “He’ll be back after Labor Day. He ran away from home for the summer. He’s working at the Jersey shore.” “He never mentioned which town he was going to.” “We really didn’t know him that well.” “He didn’t tell us why he ran away from home.” That’s what the fourteen-year-old told them before he left for Jersey. So they said. That should have satisfied Officer Kane’s curiosity. But, Bob Kane, my classmate at St. Thomas More, couldn’t help himself. He convinced himself that
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Kelly and Lawrence had been bullying Papieves. Kane first noticed their behavior in the fall of 1964 when he drove his patrol car behind a movie theater and noticed the three of them together at the back of the building. The thirteen-yearold didn’t seem right but, Papieves refused to admit anything went on behind the theater. From the encounter in the fall of 1964 to the day the boy disappeared on June 11, 1965, Kane went out of his way to stop and chat with the three boys. He hated bullies. That’s what drove him to disobey his chief. In July 1965 he noticed a dog scratching loose dirt along the Darby Creek. Kane convinced himself that the dog sniffed the body of a fourteen-yearold boy. He went back to the Township maintenance shed, and borrowed a shovel. The dog sniffed a buried dead dog. That should have convinced Kane to give it up. In his mind Papieves disappeared because Kelly and Lawrence killed and buried him. He knew that if he bothered Kelly or Lawrence he’d be fired. He’d been in the military and he knew about the chain of command. In August, unbeknown to Kane, one of his suspects traveled far from Marple Township. The U.S. Army claimed their enlistee. The summer came to a close and Labor Day weekend passed out of existence. That Labor Day weekend of 1965 Kane wasn’t thinking about the end of a summer romance. He was thinking about a boy who wouldn’t be back after Labor Day. How many times in the life of a police officer does one capitalize on a truly fortuitous event? Kane knew his time in the Township would be over if he bothered the suspect again. He had been all too aware that the long day summer had come to a close. The children he saw on the streets last week weren’t outside tonight. They had school tomorrow. Actually, there was only one person walking on the sidewalk as he patrolled a street very familiar to him- the future Penn State student. In pre-Miranda America, he drove the
police cruiser alongside the young man about to leave for Centre County. “Get in. I want to talk with you.” At first the boy resisted. “I just want to talk with you. It’s after Labor Day and Papieves hasn’t come back from the shore. You and I know what happened to him.” The future engineer tried intimidation after he sat in the passenger seat. “You were told not to bother us again. You’re going to be in trouble when I tell my parents.” His house was only a block away but, he didn’t want a police cruiser following him home. Kane and the boy talked. The engineering student talked about his future and going to Penn State in the morning. He didn’t know why Papieves didn’t come home from the shore. Bob Kane knew. “Papieves never went to the shore. He’s buried somewhere in this township. You and your buddy killed him.” He denied it but, he couldn’t explain why the Papieves boy didn’t return home after Labor Day. The twilight hour arrived. Kane knew that the future Penn State engineer’s parents would be looking for him. His time with the suspect would be over soon. The young man offered a solution. “If I tell you what happened will you let
me go?” Kane countered. “Take me to the body, and I’ll let you go.” How clever for a guy who took the secretarial course in high school. The young man agreed. They drove to the Darby Creek and he pointed to a spot not far from where Kane dug up the dead dog. While they waited for the Marple Township maintenance department to arrive with shovels, the young man explained about Papieves’ accidental death. Tapped from behind by Lawrence’s automobile Papieves fell forward into the street, and died from the head wound. The timing wasn’t convenient. Lawrence and Kelly had graduated from their respective high schools, and parties had been scheduled. Papieves’ body went into one of their attics and then they moved his corpse to a garage. When the graduation celebration ended they buried him by the Darby Creek. The Marple Township chief arrived in time to put a halt to the disinterment. A disobedient Kane would be looking for work elsewhere in the near future. A maintenance worker reset the scene. “There’s a hand. Chief, we just uncovered a hand.” The future Penn State engineer didn’t leave home for State College the next day. The Army discharged the other young man. He returned to Marple Township. The Township supervisors went into damage control. The midnight to eight shift kept the rookie officer out of circulation for as long as the residents failed to voice their concern. My lawyer brother, Jack, took up the cause of the mistreated rookie patrol officer. The Township supervisors now sung a new tune. They denied favoritism in the investigation of the boy scheduled to return after Labor Day. No criminal charges were filed against Kelly and Lawrence. In 1970 the Pennsylvania Supreme Court declared a new tort in the Commonwealth, that of serious mental or emotional distress directly caused by the intentional and wanton acts of mishandling a decedent’s body. The Court’s 1970 opinion explains Kane’s diligent efforts as follows. “More than two months later, the partially decomposed body of young Papieves was found, and his remains were returned to
a second chance in life. Rather than live with the constant fear of being questioned after the body surfaced, and the ultimate fear of dying with such a foul deed in their debit columns, Kane gave them a chance to use the rest of their lives to serve some useful purpose. I hope they did.
his parents.” Papieves, supra at 119. Bob Kane told me the story one hot night after Labor Day in Margate, New Jersey. He knew his future would be elsewhere. I may have seen him three times after that night. I started law school and didn’t return to the shore towns after 1965. A few years ago his name appeared on a Tommy More alumni publication as one gravely ill and in need of prayers. His son answered when I called. He told me his father had died. Bob Kane gave Kelly and Lawrence
Editor’s Note: The prolific Francis M. Mulligan is a past president of the Berks County Bar Association and a solo practitioner. His novel, Spanish Market, is to be published later this year.
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FOCUSED. ON YOU. Paula K. Barrett, CPA/ABV, CVA 610.376.1595
Berks Barrister | 17
The Fleetwood School District and Fleetwood Area School District Foundation has named Judge Jeffrey K. Sprecher, Class of 1968, as a distinguished alumnus, citing his judicial career, teaching at various colleges and book authorship. A plaque in his honor will be displayed at Fleetwood High. Will it be next to the athletic trophies that still bear his name?
James M. Lillis, partner at Kozloff Stoudt, is still remembered at Northeast Middle School. A member of the Class of 1967, Jim was recently presented the Distinguished Northeasterner Award. Among his many accomplishments, his military service was highlighted. He is a retired brigadier general in the Pennsylvania Air National Guard.
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Edwin L. Stock has been appointed chair of
the Reading Area Community College Board of Trustees. Ed is a Past President of the Berks County Bar Association and is the managing partner of Roland Stock.
Law Foundation Trustee Frances A. Aitken, Senior Vice President of Finance & Operations for the Berks County Community Foundation, is the 2014 ATHENA Award Recipient, recognizing her for her service to a variety of community and professional organizations, striving toward the highest level of professional accomplishment and actively assisting women in achieving their full leadership potential. In addition, Franki will receive, in September, the Lehigh Valley Business Journal CFO of the Year Award for Community Service for service â€œfar above and beyond the call of her role in the Community Foundation, in making our region a better place.â€?
The Snowfall and the Side Hill By William W. Runyeon, Esquire
Assistant District Attorney
Adam A. McNaughton was married on May 31, 2014 to Kristen L. Schrenk in State College.
On April 26, 2014 Amy J. Miller was married to Josh Knecht. Amy is with the firm of Oâ€™Keefe, Miller & Thielen, P. C.
With the Atlantic Ocean in the background, on May 23, Assistant District Attorney Todd Allen Reiner Mays was married to Kristen Thomas in Outer Banks, North Carolina.
Maxwell C. Nice married Megan E. Brown on June 28. He is with Leisawitz Heller.
Having recently remarried and returned to the town of my origin, life offered more than slight inclination to nostalgic recall of events, and places. This eveningâ€™s walk, through the early darkness, snowflakes sparkling, vivid in the street lights behind, offered also the fresh snow, fallen, as a field of tiny diamonds; yet, with each step, the cold and darkness deepen. Across the creek, the pond had frozen. Young men with hockey gear arrived, emerging from great, lumbering vehicles. To one, I spoke of my place there, many years before. He acknowledged mostly with his eyes, leaning forward, and was gone, much like the footprints trailing behind in the snow, the sound of voices and skates, echoed distinctly from the side hill, muffled a little by the falling snow; yet, by even a slight gesture, such a moment lives, more deeply confirmed, even, than by the sounds of the night.
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Envy Leading to Gluttony By Susan N. Denaro, Esquire
nvy is a terrible thing. It is so bad that it is on the list of the seven deadly sins. But it is particularly bad when you are in a restaurant and experience it while looking at everyone else’s plate at your table. That was my experience on my first trip to Wyebrook Farm, 150 Wyebrook Road, Honey Brook, well below Morgantown. This working farm boasts outdoor seating (with some limited indoor seating) and fare that is grown/raised there. Each member of our party intentionally ordered something different so we could try more things on the menu. One starter was an arugula and strawberry
salad dotted with a generous amount of feta and marcona almonds tossed with a fig and strawberry tarragon dressing. It was tasty and light. Another was mushroom soup that was poured over fresh mushrooms at the table. Its heady sherry cream flavor was a nice modern spin on an old standard. The star of the first course, however, was the asparagus beet salad. It had a smear of goat cheese fondue as its base and boasted a lemon olive oil that brought all the flavors together on the plate.
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My first pangs of envy occurred when the entrees arrived. I drew the short straw and ordered the curried goat special. None of us had ever eaten goat before and we figured this was a safe place to go beyond our normal comfort zone. While I was expecting it to be cubed and tough, I was relieved to be served goat that was pulled and tender. The curry was very subtle and the heat seemed to build with each bite despite the side of rice. My biggest issue was that it just did not look appetizing and after about a third of it, I tired of the dish. The Wyebrook Heritage pork sirloin looked and tasted far better than my dinner. It was a thick serving of tender and juicy pork with sautéed kale and a 7 red wine gastrique finished the beautiful dish. However, I was more envious of the summer-pastured chicken entrée. It too was perfectly prepared. But I was most envious of the grass-fed beef served on a bed of spinach gnocchi that were light and satisfying. The deep green color of the gnocchi matched the color of my envy. We ordered the bacon mac & cheese side dish to share because we saw almost every other table order it. The pasta was orrechiette and it was perfectly studded with sizable chunks of bacon. The pipinghot bowl was topped with breadcrumbs and roasted tomatoes. It is a standard that seems to remain on the ever-changing menu because it is a winner. In addition to the mac and cheese, we noted that over a dozen burgers were served to patrons at surrounding tables. When I wasn’t envious of my dining companions’ dinners, I was drooling over the burgers flying out of the kitchen. Feeling the need to satisfy my envy over the burgers, we went back a couple of weeks later. While we waited for what I was sure would be a burger worth the wait, we shared a plate of fried green tomatoes that was just outstanding. The freshpicked tomatoes were in a light tempura batter then drizzled with a basil olive oil. The summery plate was adorned with petite-diced red tomatoes, green peppers and red onions. The dish was outstanding.
Although the $16.00 Wyebrook Burger, which consists of eight ounces of fresh beef ground with bacon, was as tasty and satisfying as I expected, I could not take my eyes off the arancini one of our dining companions ordered. This breaded rice ball, which was ever so slightly smaller than a softball, was filled with a blend of spices, vegetables and beef. It was served with assorted, tiny heirloom tomatoes and just looked more enticing to me than the burger I had previously envied. Our desserts both nights were terrific. The star of the desserts was a lemon lavender rice pudding served as a brulee. Also worthy of a mention is the spiced blueberry crumble and the salted caramel gelato. All are a great ending to innovative meals. Check its website (wyebrookfarm. com) for directions. Beware, however, because if you find you really like a dish, you might not see it again as the menu changes daily, and often the fare listed on the internet menu are changed based upon the availability of the farm raised produce and the whims of its very talented chef. We need to go back to this BYOB gem of a restaurant again so I can have that rice ball. I have to admit that ENVY really is a deadly sin as it can lead to another deadly sin, GLUTTONY. Wyebrook Farm 610-942-7481. Wednesday – Saturday: Market 11 am to 9:00 pm; Café 11:00 am to 4:00 pm (no reservations required); Dinner 5:30 pm to 9:00 pm (reservations required). Sunday market and brunch 9:00 am to 3:00 pm (reservations required)
Editor’s Note: Susan N. Denaro, Esquire, is a principal in the Wyomissing law firm of Rabenold, Koestel, Goodman & Denaro.
Spotlight on New Members By Donald F. Smith, Jr., Esquire Serving as a law clerk to the Honorable Jeffrey L. Schmehl is Joseph R. Blowers, who
holds degrees from Franklin & Marshall College and Rutgers School of Law at Camden. Joe joseph r. blowers
previously interned with MidPenn Legal Services doing unemployment compensation appeals, clerked for a New Jersey appellate judge, had a brief diversion doing oil and gas title work and
was clerking for Judge Schmehl in the Court of Common Pleas before moving west on Court
Street to the Madison Building. His hobbies include stand-up comedy, gardening, hiking and exploring the outdoors, reading and watching science fiction, playing percussion and walking his cat. Joe is married to Kelly Kleinfelter. Lauren Rosenman Brier
Judge Parisi’s law clerk is Lauren Rosenman Brier. A graduate of the Pennsylvania State
University and the Widener University School of Law, she enjoys running with her pit-bull
Mama, playing soccer and reading. In the past, Lauren has interned for the Federal District
Judge R. Barclay Surrick and has served as a law clerk at McCabe, Weisberg & Conway, P.C. She is married to Mark R. Brier, Jr, attorney with Drinker, Biddle & Reath in Philadelphia.
Opening his own law office last fall is Andrew Muir, whose practice emphasis is in personal injury, family law, disability, education and labor/employment. He has earned degrees Andrew Muir
at Moravian College, University of Massachusetts, Wharton School of the University of
Pennsylvania, and the Temple University Beasley School of Law. His prior career was labor relations and labor negotiations for seventeen years. Andrew’s hobbies are skiing and golf.
He and his wife of 15 years, Amy Hopler Muir, have three sons: Addison,11; Brooks, 8; and Anders, 5.
Colleen Normile is the new staff attorney for the Community Justice Project in its Reading office. Her undergraduate years were spent at Vassar College, and her law degree was earned
at the City University of New York School of Law, the only law school in the nation dedicated to public interest law. Her practice is concentrated in immigration law. Before going to law
school, Colleen was a paralegal at Community Legal Services in Philadelphia, working in the areas of mortgage foreclosure defense and consumer rights. She enjoys biking, kickboxing,
vegetarian cooking and getting to the beach as much as possible. Colleen counts as her only offspring, a five-year-old cat named George.
The law clerk to Judge M. Theresa Johnson is Matthew D. Rossi. A Penn Stater, his law
degree is from New England Law-Boston. Previously, Matt has served as a Berks County Matthew D. rossi
District Attorney’s Office certified legal intern, student attorney in the Suffolk County District Attorney’s Office and as a law clerk at Sheff Law in Boston, working in the area of complex personal injury. Single, he enjoys running, cross-training, kayaking, snowboarding and outdoor sports.
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On April 29 the Berks County Bar Association and the Eastern District of Pennsylvania Chapter of the Federal Bar Association co-sponsored a seminar entitled â€œCase Management in the Eastern Districtâ€? followed by a reception.
SEMINAR PANEL (L-R): Michael Kunz, Clerk of the Court of the Eastern District, moderator Joan London, Federal District Judge Jeffrey Schmehl and Michael Hearn, Courtroom Technology Coordinator
Joan London with Jamie Wertz Kevin Musheno, Mike Monsour, Mike Kochkodin and Walt Diener
Judge Schmehl with Jeff Elliott
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Law Day Celebrated with Luncheon Highlighting Right to Vote On April 30, 2014 the Berks County Bar Association hosted more than 225 guests at our annual celebration of Law Day. This year’s theme was American Democracy and the Rule of Law: Why Every Vote Matters. Given that theme, the natural choice for keynote speaker was the famous suffragist Susan B. Anthony. Being portrayed by Marjorie Goldman, an actress with the American Historical Theatre in Philadelphia, she is shown here with the event’s co-chair, Alexa Antanavage. Ms. Anthony spoke of her experience fighting for the right to vote during a time when women were not seen as equal to men and could not even own property. Her valiant efforts led to the adoption of the 19th Amendment to the United States Constitution, granting women the right to vote.
BCBA Spring Meeting
PBA President Forest Myers, Past PBA President Matthew Crème (and one of our favorite associate members), our Zone Governor and BCBA Past President Terry Weiler and PBA Deputy Executive Director Fran O’Rourke
Tony Rearden, Walt Diener, Sharon Gray and Sean Lau
John Fielding, Immediate Past President Gene Orlando, Adam Levin, Mike McGuckin, Andy Fick, ALJ George Yatron and Carl Mantz
Judge Lash, Steve Gring (how did he get to sit at the judge table?), Judge Keller and Judge Sprecher
BCBA President Bell providing PBA President Myers with a $10,000 check in support of the PBA Legislative Department
John T. Forry, Jeff Boyd, Tina Boyd, Past President Dick Bausher and Mike Boland
Mike Wolfe, Phil Edwards, Ron Cirba, Judge Parisi, David Miller and Valeen Hykes
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Kelsey Frankowski and Julie Marburger Phil Edwards and Greg Henry FEARSOME FOURSOME (L-R): Jack Mancuso, Mark Merolla, Judge Boccabella and Kurt Geishauser
Levi Wolf and Dan Degler
Past President Chuck Phillips, Bill Blumer (expressing his dismay with the photographer) and Judge Parisi Kit Fegley with Judge Antanavage, but on June 18 he was just a regular Joe
Vicki Schutt and Paul Marrella
Bernie Mendelsohn and Ed Browne Barrie Gehrlein and Steve Price
Elizabeth Hall and Jesse Kammerdeiner
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Jeff Bukowski, Julie Ravis and Elizabeth Ware
Past President John Speicher and Vice President Jill Koestel Justin Bodor, Matt Mayer, Ben Leisawitz and Jesse Leisawitz
BENCH-BAR CONFERENCE Chief Public Defender Glenn Welsh and Dr. Larry Rotenberg presenting on the interface of criminal law and psychiatry
CRIMINAL ROUNDTABLE (L-R): Assistant Public Defender Richard Joyce, Judge Fudeman, District Attorney Adams, Judge Parisi, Judge Boccabella and President Judge Yatron
We are grateful to Herbein +Company, Inc. for being a Presenting Sponsor Another record turnout for the Bench-Bar Conference
Andy Howe and Fred Hatt having fun presenting on employment issues
FAMILY COURT ROUNDTABLE (L-R): Judge Bucci, Judge Fudeman, Judge Ullman and Judge Johnson
First Priority Bank, with Nick Cammarano and Ray Malliet, is happy to be a Partner of the Berks County Bar Association
Kathleen Kovach (R), with Angie Lattanzio (L) of Customers Bank, was the winner of the Bank’s door prize
With now Judge Antanavage (L-R): Jamie Wertz, Christin Kochel and Amber Moll
Dickinson School of Law Professor Katherine Pearson on the future of filial support Presenting Sponsor Wilmington Trust provided a seminar on “What Does it Mean to be a Trustee?”
The tethered Mike Setley
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L AW FOUN DAT ION
Once again this spring the Law Foundation of Berks County provided almost three thousand books to the students in the Reading School Districtâ€™s pre-kindergarten and kindergarten classes. During Law Day week, attorneys and friends of the Foundation read to 84 classes and provided a copy of the book to each student. The reaction of the students is most heartwarming. However, without a doubt the true reward is felt by those who read and those who financially contribute. Thanks to the following:
Mike Wieder and Fly Guy are the center of attention
Roarke Aston Lisa Siciliano A. Joseph Antanavage John Miravich Kelsey Frankowski Jana R. Barnett Timothy Bitting Donald Smith Daniel E. P. Bausher Denise Mogel Thad Gelsinger Richard A. Bausher Melissa Boyd-Freeman Susan Smith-Rife Honorable John A. Boccabella Keith Mooney Andrew George Jennifer Lukach Bradley Eden Bucher James Snyder Eden R. Bucher Daniel Nevins Susan Gernert Steven D. Buck Steve Buck Deborah Sottosanti Barbara Binder Casey Benjamin Nevius Kenneth Goodman Tyler B. Christ Jeffrey Bukowski Eric Taylor Connors Investor Services Scott Painter Jennifer Grimes Alfred W. Crump, Jr. Tyler Christ Jason Ulrich Pamela A. DeMartino Dawn Palange Barry Groebel Susan N. Denaro Karen Cook Pamela Van Fossen Daniel P. Emkey James Polyak Elizabeth Hall David R. Eric Todd Cook Charles Watkins Kevin Feeney Daniel Rabenold Alisa Hobart Honorable Richard E. Fehling Laura Cooper Terry Weiler Lynn E. Feldman Randy Rabenold Scott Hoh First Priority Bank Margaret Dâ€™Amico Michael Wieder Jeffrey A. Franklin Douglass Rauch Jesse Kammerdeiner Kelsey E. Frankowski Michael Dautrich Glenn Yeager Thad M. Gelsinger Michael Restrepo Robert Katzenmoyer James A. Gilmartin Miguel Debon Christin Kochel Amy B. Good Michelle Rhizor Jill Koestel Barry D. Groebel Susan Denaro Leroy Levan Bernice Hoffer Hartman Amy Rothermel Ray Maillet Alisa R. Hobart Carol Ann Donohoe Julie Marburger Ellen M. Huyett Peter Schuchman Ryan McAllister Joanne M. Judge Kevin Feeney Zarin McLeod Herbert Karasin Latisha Schuenemann Adam McNaughton Robert H. Kauffman Honorable Richard Fehling Joel Merow Chris G. Kraras Drew Schwartz Larry Miller LeRoy G. Levan Andrew Fick J. Randall Miller Honorable Stephen B. Lieberman Howard M. Lightman Jack A. Linton
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Heidi B. Masano Timothy McLeod J. Randall Miller Larry W. Miller, Jr. John J. Miravich Frederick R. Mogel Robert L. Moore James H. Murray Daniel C. Nevins Frederick M. Nice Michael J. Noon Scott C. Painter James M. Polyak Douglas Paul Rauch Riverfront Federal Credit Union Howard Rosen Betty J. Schafer Jill M. Scheidt Peter F. Schuchman, Jr. Latisha B. Schuenemann Louis M. Shucker Lisa A. Siciliano James M. Snyder Sodomsky & Nigrini Deborah A. Sottosanti Honorable Jeffrey K. Sprecher Paula M. Szortyka Honorable Mary Ann Ullman John L. Walfish Charles M. Watkins Terry D. Weiler Honorable Eugene F. Wisniewski Gary D. Wolfe Michael G. Wolfe Douglas N. Yocom, President & CEO Precision Medical Products, Inc. Gregory R. Young
P A R T N E R
W I T H
O U R
T E A M
• COMMERCIAL LINES OF CREDIT • COMMERCIAL TERM LOANS • COMMERCIAL MORTGAGES • RESIDENTIAL MORTGAGES • PRIVATE BANKING
Bob Showalter Vice President & Commercial Lending Officer 484.334.4918 Georgette Krick Assistant Vice President & Private Banking Officer 484.334.9944
WHAT YOU WANT YOUR BANK TO BE Berks Barrister | 27
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The Official Publication of the Berks County Bar Association of Berks County, Pennsylvania Published quarterly, Berks Barrister is mailed t...
Published on Aug 26, 2014
The Official Publication of the Berks County Bar Association of Berks County, Pennsylvania Published quarterly, Berks Barrister is mailed t...