The Berks Barrister Fall 2023

FALL 2023

The Award-Winning Publication of the Berks County Bar Association

Dutch Delight Also:

The Second Amendment and Targeted K-12 School Shootings: An American Dilemma - Part 2 Snow Tubing Injury Case Challenges Scope of High-Risk Activity Waivers

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Content for Fall 2023

BOARD OF DIRECTORS GABRIELA G. RAFUL, President KAREN H. COOK, President-Elect DANIEL C. NEVINS, Vice President NIKOLAS D. CAPITANO, Secretary PAUL F. TROISI, Treasurer HON. TONYA A. BUTLER, Director SARA R. HAINES CLIPP, Director JAY M. KURTZ, Director AMY J. LITVINOV, Director LAUREN M. MARKS, Director MARK E. ZIMMER, Director JAMES M. SMITH, Immediate Past-President LAUREN P. BUTTERWORTH, President YLS

BAR ASSOCIATION STAFF KORI A. WALTER, Executive Director ROSE M. JOHNSON, Law Journal Secretary/Office Manager COURTNEY MORSTATT, Publications & Marketing Coordinator LUCY BRITO, Community Service Manager J. CHADWICK SCHNEE, Law Journal Editor VALERIE KRAMER, Law Journal Assistant Editor JAY M. KURTZ, 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: info@berksbar.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.

Features: 8

Dutch Delight

16 The Second Amendment and Targeted K-12 School Shootings: An American Dilemma - Part 2 22 Berks County Gains 37 New Citizens 24 Clifford, Pete, and Book ‘Em Week!

26 Snow Tubing Injury Case Challenges Scope of High-Risk Activity Waivers 30 Singing Music’s Praises 34 Annual Golf Competition & Picnic 36 Having a Ball at the Pets in the Park 38 Miscellaneous Docket

Departments: 5

Opening Statement

32 Restaurant Review 39 Closing Argument

COVER: Image by Sharon Scullin, Esquire. Read her article Dutch Delight on page 8 to learn more about her experience in the Netherlands.

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Hoffmann Publishing Group, Inc. 2669 Shillington Road, #438 Reading, PA 19608

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Opening Statement

Gabriela G. Raful, Esquire 2023 Berks County Bar Association President

I

President Raful, pictured in the center, at the PBA Bar Leadership Institute Class 2018-2019

am often asked about the relationship between our Berks County Bar Association (BCBA) and the Pennsylvania Bar Association (PBA).

In my view, each is an integral part of the other.

Their benefits are key to local practicing attorneys.

You all know the benefits of our BCBA, but perhaps you are less aware that the PBA is a core component of the BCBA’s success. I believe PBA’s efforts and benefits are so important that I would like to explore them in this column. By the end, I hope we all have a clearer understanding of what the PBA does to ensure your membership dues are put to good use and the practice of law is protected in our Commonwealth.

public interest attorneys.

While the list of PBA benefits is long, the two most important ones in my experience are (1) their legislative advocacy and (2) their Bar Leadership Institute program (BLI).

PBA’S LEGISLATIVE DEPARTMENT The PBA Legislative Department works to advance the interests of PBA and local bar members before the Pennsylvania General Assembly. Their agenda is nonpartisan and is focused on issues related to attorneys, access to legal representation, and the practice of law. They do this through their initiatives and responses to proposed bills.

Initiatives are ideas which are adopted by the PBA Board of Governors or the House of Delegates. This may include supporting a legislative draft and advocating for it to be enacted as a law. For example, some of the initiatives the Legislative Department have for this session include:

Berks is a “unit” county within PBA. Simply put, this means that if you are a private practitioner who wants to be a BCBA member, you must also become a PBA member. This only applies to private practitioners, not government employees or

•

Creating a framework and guidelines for family law arbitration

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Addressing race-based and other discriminatory restrictions in residential deeds

•

Providing greater protections for alleged incapacitated persons in guardianship proceedings

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Increasing support for indigent criminal defense Continued on page 6

Fall 2023 | 5

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Opening Statement Continued from page 5

•

Updating the Uniform Commercial Code to include digital assets

•

Providing for electronic wills and other estate planning documents

PBA’s Legislative Department also monitors thousands of bills introduced each legislative session to determine whether action is needed to oppose the bill or support it. At every committee and section meeting, PBA’s Legislative Department provides a roster of legislation that could affect the practice of that committee or section.

I have been extremely impressed by how closely they follow each bill and how they work to keep those practitioners advised of the proposed changes in the law or how a bill may affect the practice of that committee or section.

I belong to three PBA sections. At each meeting, there are several pages of legislative rosters followed by an explanation of each bill and how it could positively or negatively affect that section’s practice area or interest. If a bill is significant and the committee/section would like PBA to take a position to lobby in favor or against, a process is followed, and thereafter, the Legislative Department works hard to achieve the outcome our members want.

They utilize the funds donated to their PAC to be able to attend events, form relationships, learn the position of each legislator, and help advance the interests of our members.

I can cite hundreds of examples of how attorneys have benefited from the PBA’s lobbying, but I believe the most notable one is taxation on legal services. This is something that has been debated in Harrisburg for several legislative sessions. Most recently, during Governor Tom Wolf ’s term, the bill advanced through the Legislature. PBA worked diligently to prevent the bill from reaching Gov. Wolf ’s desk. The basic argument against taxation on legal services by PBA was (1) a tax on professional legal fees is a tax on the basic, constitutional right of citizens to have access to justice and the courts; (2) the sales tax is a regressive tax that is made more 6 | Berks Barrister

I can cite several other examples, but I believe these two depict the important work of the PBA’s Legislative Department. Their staff is on the Hill in Harrisburg advocating in favor of the interests of our local bar associations; working each day to protect and to improve the practice of law. onerous when it is imposed on basic goods and services; and (3) the sales tax is bad for business.

The PBA’s Legislative Department work was crucial in stopping the bill. So, thanks to them, we have no taxation on legal services.

But don’t think a similar bill cannot be reincarnated. Under Governor Ed Rendell, a similar bill was also introduced. Whenever there is a debate about elimination of property taxes, taxation on legal representation is always a bargaining option for legislators.

Session after session, PBA’s Legislative Department works closely to monitor these proposals and to make sure the practice of law is not subjected to new taxes or other burdensome mandates.

The Legislative Department’s work is also possible thanks to your contribution to their PAC. I encourage you to visit pba.org, click “get involved,” and donate to the PAC. The money raised allows the department to be able to attend events and continue to be relevant to legislators.

Another example of the responsive efforts of PBA’s Legislative Department was in changing the culture around legal advertising, which is a major revenue source for local bar associations. Legal advertising keeps the public informed and the revenue legal ads generate allows local bars to deliver educational programming, offer pro bono clinics, and serve our neighbors. Again, legislators have attempted multiple times to eliminate legal advertising or give local governments control over where and how to provide public notices. The PBA’s Legislative Department has successfully fought against legislation that would drastically change legal advertising requirements.

PBA’S BAR LEADERSHIP INSTITUTE Personally, participating in PBA’s Bar Leadership Institute (BLI) has been the most valuable experience I have received from my PBA membership. BLI provides young leaders with a process to learn about the PBA while actively participating in key meetings.

The program provides a foundation on governance and policy issues and introduces the participants to PBA staff and resources.

As part of the program, you are paired with an experienced PBA and local bar leader who provide mentorship throughout the year.

I was selected for the BLI class of 20182019. At that time, I was already a BCBA board member, but I was not very familiar with board governance, bar finances, or policy making of bar associations.

The one-year program is for practitioners aged 40 or younger, or who have practiced law for five years or less. Attorneys who enroll in BLI must commit to attending three main conferences: (1) Young Lawyer’s Summit in the summer; (2) Board of Governors, Committee & Section Day and House of Delegate meetings in the fall and; (3) the Conference of County Bar Leaders (CCBL) in the winter. These events are fully paid by the PBA. I maximized my year in BLI by fully immersing myself in the conferences. BLI provided a foundation about day-to-day operations of the PBA, governance, policy issues, budgeting, and general bar operations and management. I was able to see how PBA money was spent, how they prioritize budgeting, how their legislative department works, and most importantly, how hard they work to make sure local bar associations have

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the assistance they need to continue to be relevant to their local members. For the local bar, put simply, BLI provides young leaders numerous opportunities to network with PBA members and leadership and helps build lasting relationships that serve as an invaluable resource.

As BCBA President, many have asked me what prepared me to be the youngest president of this Association. While the answer includes many factors, I would like to acknowledge that PBA and its BLI class played a significant role in my preparation for BCBA leadership and eventual presidency.

I am grateful for the BLI experience and recommend the program to our younger lawyers. Without a doubt, it was the best foundation for bar leadership. If you have a young attorney at your firm who is interested in bar leadership, I highly recommend encouraging them to apply to the next BLI class.

OTHER PBA’S BENEFITS PBA has over 60 COMMITTEES AND SECTIONS; almost every practice area and subject of interest is represented. Members can get involved and discuss issues affecting that practice area and get perspectives from across the Commonwealth. Issues about rules and procedures of that practice area are often debated here. Additionally, members can get involved in committee and section work to set PBA policy and the future lobbying efforts of the Legislative Department. Active participation on Committees and Sections also provide a great networking opportunity to participants. Often, I find myself being referred cases from individuals who I met at a PBA section meeting, for example.

Representation in the PBA’S HOUSE OF DELEGATES is another benefit of the PBA. The House of Delegates is the primary policy making authority of the association. It is the body charged with setting the policy. All resolutions (including whether to support or oppose a bill) need to be approved by the House of Delegates. Unit counties have representation in PBA’s House of Delegates.

For every 100 members, we get one representative. BCBA’s representatives before PBA’s House of Delegates are: Jill Scheidt, Heidi Massano, Tom Bell, and Fred Mogel.

These delegates are tasked with reviewing all proposed policies and resolutions and determining if they are in the best interest of our Berks County lawyers. They vote their

association. At this conference, bar leaders across the Commonwealth share programs and issues affecting their local bars. These run the gamut from pro bono clinics to improving membership benefits. Indeed, this conference provides a great brainstorming opportunity for the local bar. I always leave energized from those meetings and with tons of ideas to implement at our local bar.

conscience to ensure the interest of our local practitioners is considered.

Representation in PBA’S BOARD OF GOVERNORS is another benefit. The Board of Governors is the body that manages and carries out PBA policies as they are established by the House of Delegates. Each PBA Zone has a governor. Berks is in Zone 3, which is composed of Berks, Carbon, Lehigh, Northampton, and Schuylkill counties. The Governor rotates among those counties every 3 years. The Governor meets with the county representatives before a meeting to caucus on pros and cons of each policy, to build consensus, and establish a position. They debate in caucuses and then vote in the best interest of our local practitioners.

PBA offers wonderful WRITTEN MATERIALS such as the The Pennsylvania Lawyer magazine, The PBA Quarterly, and Pennsylvania Bar News. Their written resources are a wonderful tool for all practitioners.

PBA membership offers SPECIAL PROGRAMS such as CLEs, amazing conferences, training and coordination of events, and programs with staff and bar executives, among several other benefits. I often find their Workers’ Compensation Fall Section meeting to be the best practice area conference: there, 400-600 attorneys meet to get CLE credits and learn about the changes in that practice area.

PBA does a lot to develop local bar leaders. My favorite conferences are the CONFERENCE OF COUNTY BAR LEADERS (CCBL) and the PBA MID-YEAR MEETING. CCBL is a conference for bar leaders where you are provided with tons of ideas on what you can do in your local bar

The Mid-Year Meeting was the highlight of my term as president, in terms of events.

Every year, PBA chooses a destination and designs a conference where for half of the day, you are receiving CLE credits, and the other half you are enjoying time with other bar leaders and your family. You read that right, you can bring your family members to this event. This year, the conference was held at Disney World, and of course, I took my 8-year-old Julian with me. My husband Lenin, and my 2-year-old, Camilo, stayed behind.

Julian had the greatest time while having ice cream with Chief Judge Juan Sanchez of the U.S. District Court, Eastern District of Pennsylvania, and while walking the busy streets of Epcot with Pennsylvania Supreme Court Chief Justice Debra Todd. He had no idea who they were, but he had so much fun, he decided he wants to be PBA President in 2057! His words: “If this work gets you to Disney, this is what I want to do.” I think I need to take him to a budget workshop so he can see the real work behind bar leadership!

Another important benefit of PBA membership is the guidance and mentorship provided among staff and executive directors.

We don’t need to reinvent a program; we can adapt and modify what is working for other counties to benefit our lawyers and the communities we serve. Often, our staff members and executive director share experiences, ideas, projects, problems, and solutions with other bar personnel, which enriches the benefits we are able to provide to our members and the community.

Yes, I am a BCBA and PBA aficianado. I love attending their events, and I know that my active participation in both organizations has enhanced my career and my practice.

Active PBA membership is key for our local bar association’s success.

I encourage you not to just be active locally but to expand your engagement and be active and supportive of PBA. They truly are our “other partner.”

Fall 2023 | 7

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Dutch Delight

By Sharon Scullin, Esquire

8 | Berks Barrister

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I

n late May of this year, my husband Jim Rothstein and I traveled to the Netherlands to visit friends, museums, and fall into the rhythm of this tolerant and manageable country so we could pivot if a new adventure beckoned. Decades ago, we had become friends with a Dutch family, when I tutored one of the kids in ESL as a volunteer. The Koenens lived here for about five years before returning to the Netherlands, where the three daughters had no college tuition. One of them, Liesbeth, got tickets for us, our British friends Thomas and Tricia, and the extended Koenen family for the extraordinary Vermeer exhibit at the Rijksmuseum.

The Netherlands is easy to navigate because the public transportation system is fast, clean, and comprehensive, and everyone speaks English. Jim and I bought OV transportation cards at Schiphol Airport to use on trains and trams. We stayed at a hotel in the Central District, Dikker & Thijs, which overlooks Prinsengracht Canal. The principal means of transportation in Amsterdam is bicycles – bike garages house thousands of them. They may not have the official right of way, but you always need to be aware of them zipping by. The canals in Amsterdam form a kinked semicircle around the oldest part of the city, which dates to the 1300s. New canals are built, when needed, to expand the city, which is about 6 feet below sea level. Flowing water and cozy houseboats give Amsterdam a leisurely feel.

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Dutch Delight Continued from page 9

We met Thomas and Tricia at our hotel and just wandered on the day of our arrival. When you are walking the cobbled streets, chances are you will feel small; the Dutch are the tallest people in the world. The architecture of the buildings along the canals reflect the period in which they were built. In the Dutch Golden Age (16th-17th century), the middle class of Amsterdam could afford to build high, narrow, deep houses along the canals, which were the main mode of transportation. Furniture, food, and other necessities came by water and were hoisted up to the higher floors. These buildings are beautifully ornamented. Jim stopped at a famous french fry take away, Fabel Friet, to try this national specialty, which is served with mayonnaise and hot sauce. Dutch food is influenced by occupation of Indonesia by the Dutch East India Company in the early 17th century. Indonesia did not become independent until after WWII. Indonesian food is popular in Amsterdam, particularly the rijsttafel, which is rice surrounded by several small dishes of spicy fish and vegetables, served family style.

We walked to a charming restaurant called Moeders on our first evening. When it opened in 1990, the proprietor asked all of the diners to bring place settings. All of the plates, cutlery, and glassware are mismatched and have this provenance. The walls are covered in hundreds of snapshots of mothers to illustrate the restaurant’s motto: “In our restaurant, all mothers are heroes.” The food is delicious, traditional Dutch. The next day, we had tickets to the Anne Frank House, which are released precisely 7 weeks in advance. All of the museums have timed entrance tickets. Jim and I had been to the Anne Frank House before, and Tricia’s mother was a nurse and a courier for the Dutch resistance during WWII, until she had to flee to South Africa after her cover was blown. The Annexe where the Frank family hid has been enclosed by a modern museum building to preserve the original. The interior is still intact, incredibly moving, and sad.

In the afternoon, we went for a tour on a canal boat, for an overview of the city. That evening we met Ineke Koenen and her daughters/partners at a lovely restaurant called Brasserie Van Baerle, a short walk across the park from the Rikjsmuseum. Ineke’s husband, Jac, died of Covid in March 2020, and we hadn’t been able to go to the funeral. After a happy reunion over dinner, we strolled to the Rijksmuseum for our evening entry to Vermeer. The exhibit was not too crowded, and we were able to sink into the calm, light-infused drama of the amazing paintings. The Riksmuseum had borrowed 24 paintings from all over the world to add to its collection of 4. There are only 35 or 36 (experts disagree) Vermeers in existence, out of the 60 that experts guess he may have painted.

By way of contrast, Rembrandt painted 300-600 paintings, and made thousands of drawings and etchings. Van Gogh painted 70 paintings in 70 days at the end of his life. Vermeer fathered 15 children, ran a business as an art dealer, and died at 43 in 1675; his career was short. But his fame does not rest on scarcity; his work is exquisite. Besides two amazing landscapes of Delft, most

10 | Berks Barrister

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of his paintings are small, focusing on interiors with only a few figures, almost all featuring women bathed in light, wearing interchangeable clothes.

We went to the Van Gogh Museum the next day and saw an exhibit on Van Gogh’s last years in Auvers, which was stunning.

We also went to the small, comprehensive Dutch Resistance Museum. The following day, we went back to the Rijksmuseum to view some of the vast permanent collection, which holds treasures such as “The Night Watch” by Rembrandt, 12 feet by 14 feet, cut down from its original size when it was moved in 1715. It has suffered two knife attacks and since 1990 has been exhibited behind glass because an escaped psychiatric patient sprayed it with acid. It’s still breathtaking.

We took a train to Delft and checked into Hotel Arsenaal, which is a National Monument, having been a warehouse for cannons, firearms, etc., since 1601, then for the Dutch East Indies Company, then served as a prison for WWII collaborators (Scum House) before becoming an Army Museum, and now a hotel. The walls feel as if they are four feet thick, and it is on a canal for ease of delivering the guns or spices of yesteryear. Delft is considered

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Dutch Delight Continued from page 11

Sharon’s tips for visiting The Netherlands (in which Holland is a province, not another name for the country) a car in Amsterdam is a terrible option because of 1 Driving the canals trams, and tiny streets clogged with determined cyclists. Before you go, and depending on how you are traveling around Amsterdam or the rest of the country, download apps for NS (the Dutch railway), GVB (tram, bus, metro and ferry routes/schedules), CityMapper (for navigating by foot), and tours for city walks (Rick Steve has free apps). People are also very helpful with directions. sure your cell phone is unlocked and can take a 2 Make Dutch sim card, or plan to buy a cell phone and sim card at Airport Telecom at Schiphol Airport. Alternatively, if you are technophobic and have Verizon, you can call them and get a temporary International Plan for $10 a day that is only activated and charged on the days that you use it. Make sure you know how to call the US from the Netherlands (00+1+ area code and number) and how to call Dutch numbers from a US phone (001+31– then the phone number). Turn roaming off unless you absolutely need it. rains a lot in the Netherlands, so bring a raincoat, travel 3 Itumbrella, and waterproof shoes. your cards and cash in a money belt or crossover 4 Carry bag. A lot of surprising places only take cards or Apple Wallet now. Make sure you have a copy of the numbers of your cards (or give it to someone you trust at home) and the number to call to cancel them, if necessary. Put your passport and a spare credit card and one shoe in your hotel room safe so you remember to open it before you check out. are not actually legal in Amsterdam; the prohibition 5 Drugs against cannabis use is simply not enforced as long as you are buying and using in designated coffeehouses. You cannot take pictures, gawk, point, or carry alcohol in the street the Red Light District (because in the windows are actual breathing, feeling people). Tours are not allowed so don’t fall for anyone offering one. The Dutch are fed up with rude, rowdy tourists (they specifically called out young British men on stag benders), and they are cracking down on behavior that effects the quality of life for residents.

12 | Berks Barrister

one of the most beautiful towns in the Netherlands; the pace is much slower here. Families paddle board on the sleepy canals.

Delft has the distinctively European open town square bounded by a church and the town hall, lined with cafe tables where locals and visitors sit for hours and relax. It is known for Delftware, the distinctive blue and white pottery still made there. Vermeer lived his whole life in Delft. There was an exhibit at the Prinsenhoft Museum on Vermeer’s times and contemporary artists. Karel Fabricius, who painted “The Goldfinch,” on which a book and film were based, also lived in Delft. Some have posited that he was one of Vermeer’s teachers. Fabricius died when 30 tons of gunpowder exploded at the original Armory in Delft, killing 100 people and injuring thousands.

We took a tram to The Hague, about a fifteen minute ride from Delft. We toured the Mauritshuis, a museum housed in the mansion of 17th century Prince Johan Muarits. The museum has a small but choice collection, including work by Rembrandt and Frans Hals. Vermeer’s “Girl with a Pearl Earring” is there, having spent two months on loan to the exhibit at the Rijksmuseum. It hangs in a small room opposite “The Goldfinch.” The museum literature acknowledges that Johan Maurits’ wealth came from Continued on next page

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Dutch Delight Continued from page 13

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his personal involvement with slavery. The wall plaques also identify many paintings thought to have been looted from Jews during WWII, whose descendants are being sought so the work can be returned. The Dutch believe in bespreekbaarheid (speakability) and are forthright, even about uncomfortable subjects. This is said to spring from the historical need to cooperate to build and maintain the dikes. Despite being one of the few remaining monarchies, the Netherlands has a representative democracy. It is an egalitarian country. After lunch with Liesbeth Koenen, we went to the government buildings of The Hague, an imposing complex on a small lake.

Liesbeth then drove us to Clingendael, a government training center that opens its secluded Japanese garden for only two weeks in spring and autumn.

The next day, Ineke’s brother Fred, who lives in Delft, drove us to Dordreche to lunch at Augustus, a former water tower that is now a quirky hotel, garden, and restaurant. Then, we

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It has 19 working eighteenth-century windmills along tranquil canals bordered by long grasses. That evening, we had a traditional dinner at Fred’s house: white asparagus, hard-boiled eggs, and ham. The white asparagus is a short season delicacy, grown in Limburg. Limburg was my last destination in the Netherlands.

Jim, Thomas, and Tricia left, and I traveled to Sittard, near Maastricht, to stay with Ineke for a few lazy days in that medieval town, whose center is a protected historic area. Then a train to Schiphol and home, carrying chocolate and the distinctively salty Dutch black licorice.

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The Second Amendment and Targeted K-12 School Shootings:

An American Dilemma Part 2 This article is the second part of a two-part series.

The first part ran in the Summer 2023 issue.

By Douglas Wortman, Esquire

T

his is the second part of a two-part article. The first part included a 2019 U.S. Secret Service National Threat Assessment Center study of targeted school violence in the United States. This threat assessment includes the Five Stage Sequential Model to explain what might lead students to commit mass murder at their schools. The first part concluded with the application of the Sequential Model to the mass shooting at Sandy Hook Elementary School.

The second part of the article will concentrate on prevention of targeted K-12 school shootings and include a summary of The Rand Corporation Mass Attacks Defense Toolkit, which advances practical strategies and guidance on deterring, mitigating, and responding to mass attacks. This part concludes with a description of the 2021 Oxford, Michigan High School shooting and how numerous missed warning signs made that tragedy entirely preventable, if only they had been acted upon.

16 | Berks Barrister

Risk Factors for School Center Shooters Given the prevalence of such shootings, many journalistic and scholarly investigations focused on identifying the major risk factors for becoming a school shooter. Significantly, most studies identified extreme social rejection and bullying that challenged boys’ masculinity as key risk factors. Bullying took numerous forms, both verbal and physical, and was heavily characterized by actions and words meant to humiliate the victim. Other researchidentified risk factors included the availability of guns and consumption of violent media, especially violent video games, but also violent music, television shows, and films.

The Rand Corporation - The Mass Attacks Defense Chain The Rand Corporation Mass Attacks Defense Toolkit advances efforts to prevent and reduce intentional, interpersonal firearm

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violence and public mass attacks in the United States. The goal of this Toolkit is to provide practical strategies and guidance on deterring, mitigating, and responding to mass attacks for a variety of audiences, including public safety experts, practitioners, policymakers, community groups, and the general public.

Methods of Preventing Attacks The first phase of the Mass Attacks Defense Chain concerns deterring, detecting, and stopping plots to commit mass shootings and other mass attacks.

Building a Prevention Team Agencies need to set up policies and procedures for sharing information related to potential threats. While there are, of course, privacy and civil rights guidelines on what information can and should be collected and shared, agencies could ask partner organizations whether they have any relevant information about people or venues involved in a specific potential threat report.

It is understandably difficult to maintain vigilance on, and resources for, a type of threat that is so rare (several dozen incidents occur per year in a country of 330 million people). Most people will go their entire lives without encountering a person who will commit a mass shooting or other mass attack. Despite this, all members of a community need to realize that they might be the one who comes across the warning sign that can make

the difference. Community service providers, including law enforcement, would rather get a report so that they can assess the potential threat than have someone not report because they think their concern is irrelevant or wrong.

Foster a Prevention Mindset Deterring Attacks: Building Bonds of Community and Social Integration The first defensive steps are about building bonds of community and social integration toward preventing attacks, to make it both less likely that people will want to become attackers and more likely that those who do will be caught and diverted from violence.

Community responsibility: Prevention is the responsibility of the whole community. It takes everyone to identify possible concerns to be able to prevent violence and support people in crisis. It also takes everyone to disincentivize mass killing.

Communities need solid mental health and support services to work with people facing difficulties, as well as trust with the community so that individuals will use those services and refer others to them. Trust and legitimacy are key aspects of getting members of the community to report. Law enforcement and other organizations need to provide assurances—especially to family Continued on next page Fall 2023 | 17

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The Second Amendment and Targeted K-12 School Shootings: An American Dilemma Continued from page 17

members considering reporting their loved ones—that, as much as reasonably possible, efforts will be made to handle the response and continuing assessment outside the criminal justice system.

Awareness: All members of law enforcement and the community need to know what to look for (i.e., warning signs), the vital role those warning signs can play in prevention, and how to submit tips. In brief, people should report what reasonably looks like serious intent to kill members of the public, concrete actions toward carrying out an attack, and especially combinations of intent and action. A first step is to build general knowledge about various types of mass attack threats and overarching strategies to combat them. Next, determine the nature of the mass attack threat in your area, particularly for mass shootings and terrorism, by doing threat assessments.

When in Doubt, Call: The majority of tips are handled without arrests or prosecutions and often lead to people getting the help they need. A typical condition for attacks to reach fruition is that bystanders “see something” and have serious concerns but choose not to report those concerns.

Do not deter those who might know would-be attackers from reporting by treating them all as potential enemies. Tips leading to foiled plots often come from would-be attackers’ associates, who themselves are not typically involved in violence.

Follow-Up Actions: No Prevention Opportunity Missed Once the risk mitigation next steps are determined, someone must take them. A major contributing factor to larger plots reaching execution was whether follow-up actions were dropped prematurely.

Missed Opportunities: An Approach Can Help Prevent Missed Opportunities of Prevention Forward Prevention: Find early opportunities to divert people from violence. Do what you can to support the individual to mitigate the threat but be ready to pursue a law enforcement route if the threat is high or is increasing. Subject-matter experts have flagged this second part, Relentless Follow-Up, as critical.

This means continuing to monitor and work with a subject until the threat assessment team is confident that the subject no longer poses a threat. Relentless follow-up requires having active case management with one agency (or organizational group, depending on the team) and a dedicated person chosen to be case manager for each active case. It also includes having regularly scheduled team meetings of the relevant service providers to assess recent developments in the case, update the assessment’s findings, and make follow-on decisions.

Mitigation and Support Plans A core result of the threat assessment must be a plan that specifies the follow-up actions to reduce crisis or threat levels in the immediate and long term.

Readiness for Enforcement and Judicial Actions: Although services and community support options are always preferred, sometimes it takes legal action to reduce the threat. These actions might include taking legal steps to remove guns or ultimately make an arrest.

Initial Detection Observable Warning Signs: They are typically leaked by the would-be attacker to others, either in person or online.

Active Information-Sharing: There are hundreds of databases maintained by partners that provide sources of information to conduct thorough investigations and threat assessments. There should be more awareness of these systems and how to access

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them while following privacy laws and collaborating with partners outside the systems if needed. The only way that these systems are valuable is if local agencies contribute data.

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Putting It Together: A Case Study on Identifying Actions for Prevention The objective of this case study is to demonstrate how lessons from a mass shooting can increase the likelihood of preventing similar violent incidents.

Case Description: Mass School Shooting at Oxford High School, Oxford, Michigan Just after Thanksgiving of 2021, law enforcement officials say 15-year-old Ethan Crumbley entered the Oxford High School hallway and fired more than 30 shots at people and through classroom doors, killing four students and injuring six others, including one teacher. Ethan was taken into custody within five minutes of the first shot fired. He did not resist.

Ethan was charged as an adult with four counts of firstdegree murder, one count of terrorism causing death, seven counts of assault with intent to murder, and 12 counts of possession of a firearm in commission of a felony. At arraignment, he entered a plea of guilty.

The deceased victims were Madisyn Baldwin, 17; Hana St. Juliana, 14; Tate Myre, 16; and Justin Shilling, 17, who died a day after the shooting. In answering questions from the press, Ethan’s attorney stated that Ethan did not target the victims specifically.

The weapon used in the shooting, a Sig Sauer 9mm handgun, was purchased by Ethan’s father, James Crumbley, on Black Friday 2021. Ethan’s father told police that the weapon was locked away. Ethan says the weapon was not locked away, and he had free access to it.

Surveillance footage from the school shows Ethan entering a bathroom with a backpack and leave with the weapon, after which he “methodically and deliberately” fired the weapon at students inside the classrooms.

Oakland County Sheriff ’s Lieutenant Tim Willis told the judge that Ethan made threats on social media the day before the shooting and in a journal that was collected into evidence.

The Lieutenant alleged that Ethan had brought the gun to school “with the intent to murder as many students as he could.”

There are reports which state there was a prior threat made

by Ethan that was ignored by officials, but the sheriff ’s office said there was no evidence to support that. The DA’s office claims they did not have evidence that Ethan had been bullied in school and had asked the school if there were any records of him being bullied. There was not.

Ethan was active on Instagram and had a countdown clock on Instagram, marking the “return of the devil.” He also posted photos of the Sig Saur pistol in multiple Instagram posts. These posts are the first confirmed public warning signs that Ethan had reached Levin and Madfis’s first stage of Chronic Strain, which resulted in anger, frustration, and, eventually, crime. The

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On November 12, the school put out a letter to parents about “concerns and rumors” but did not name Ethan specifically. On November 29, the day before the shooting, school officials talked to Ethan because a teacher saw him looking at ammunition on his phone while in class; another glaring indication that the teen had reached the planning stage. School officials left a voicemail informing his mother about it, but it seems that little follow-up was done to deter Ethan from his plan.

On the morning of the shooting, Ethan’s parents were summoned to the school and shown his drawings, which included a handgun and the words “The thoughts won’t stop. Help me.” No one did. Authorities said Ethan’s parents refused to take him home after the 13-minute meeting, and the school did not insist that his parents do so.

Prosecutors have accused and charged Ethan’s parents of failing to keep the gun used in the shooting secure at home and failing to reasonably care for their son when he showed signs of mental distress. As this timeline indicates, numerous warning signs that Ethan was planning a mass school shooting were either missed, not adequately investigated or followed-up, and, in the case of his parents, seemingly disregarded.

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The Second Amendment and Targeted K-12 School Shootings: An American Dilemma Continued from page 19

Possible Prevention Options That Might Help Address This Case and Others Like It Wellness Checks and Encouraging Voluntary Surrender of Firearms: A small number of law enforcement agency representatives have reported significant success in conducting wellness checks with subjects who police felt were at risk to commit violence but who were entitled to keep their firearms.

They noted that subjects expressed appreciation that police cared enough about their well-being and safety to urge them to turn their firearms over to police; some even reported that those positive encounters were among the first occasions that someone unknown to them expressed concern about the value of their lives.

Conditions Under Which Legally Purchased Firearms Can Be Seized: If any one of a number of prohibitions specified in Federal Firearms Law (18 U.S.C. 922(g)) occurs, the subject can be arrested, and the firearm can be confiscated under administrative asset seizure provisions and later forfeited. For example, the subject of a Red Flag extreme risk protection order who later obtains a firearm violates the law.

Conclusion I am a gun owner. I have a licensed handgun and a concealed carry permit. It is not my intent in this article to advocate for or against any gun or assault weapon restrictions. The plain truth is the Second Amendment is here to stay. Sadly, it seems, so are targeted K-12 school shootings.

The dilemma then is how can the nation preserve Second Amendment rights while finding a way to protect our school 20 | Berks Barrister

children from mass shootings by deranged individuals hell bent on their senseless murder? Unfortunately, the nation and its leaders are failing miserably in this urgent endeavor and seem to be unable to agree on any solutions beyond “thoughts and prayers for the victims.” Meanwhile, our children, our teachers, and our school administrators and staff members continue to be murdered in truly alarming numbers in a place that once was, and must somehow be again, a safe haven from violence.

Sources: 1) School Shootings This Year: How Many and Where (2023, January 5). Education Week. Retrieved March 29, 2023, from: https://www.edweek.org/leadership/school-shootings-this-year-howmany-and-where/2022/01.

2) https://www.secretservice.gov/newsroom/releases/2023/01/ new-secret-service-research-examines-first-time-five-yearsmassviolence#:~:text=%E2%80%93%20Today%2C%20the%20 U.S.%20Secret%20Service%20National%20Threat,and%20 highlighting%20the%20observable%20commonalities%20 among%20the%20attackers. Retrieved March 29, 2023.

3) https://www.rand.org/pubs/tools/TLA1613-1/toolkit/prevent. html. Retrieved April 1, 2023.

Mr. Wortman is principal of Justicia Law in Reading.

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Berks County Gains 37 New Citizens 37 new citizens joined Berks County on July 19 during a naturalization ceremony presided by the Honorable James M. Lillis in Courtroom 5A of the Berks County Courthouse.

Elizabeth Kij-Antoniak, Officer for the United States Bureau of Citizenship and Immigration Services, presented certificates of citizenship to the newly naturalized citizens, who originated from fifteen countries, including Ecuador and South Korea. Dr. Jennifer Murray, Superintendent of Schools for the Reading School District, addressed the new citizens during the ceremony and expressed her sincerest hopes of a bright future for each and every one of them as they join the Berks County community. Many community organizations joined the celebration, as well as the Berks County Sheriff’s Office Honor Guard, who presented the colors, and Jenna DiFabrizio, a student from Twin Valley High School, who sang the national anthem.

Nana Akua Saa Yeboah represents her home country of Ghana at the naturalization ceremony.

The 37 newly naturalized citizens, President Gabby Raful, the Honorable James. M. Lillis, Dr. Jennifer Murray, Elizabeth Kij-Antoniak, and community members gather for a group photo after the ceremony.

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Reading School District News

Help our kids. dream. believe. achieve.

Consider a Gift to the Reading Education Foundation Angerly Baptista Grebner, originally from Venezuela, celebrates the completion of her naturalization process with her family and Judge Lillis after the ceremony.

The Reading Education Foundation is an independent 501(c)3 organization dedicated to providing Reading School District students with innovative academic opportunities they, otherwise, never would have. The Reading Education Foundation exists to inspire students to Dream, Believe, and Achieve.

ATE DON E! IN ONL

As we approach the end of the year, please consider a donation to the Reading Education Foundation.

The Reading Education Foundation is an approved Educational Improvement Organization (EIO) through Pennsylvania’s Educational Improvement Tax Credit (EITC) program.

Respectfully REF Board Members, Chris Kraras, White Star Tours, RHS ’65 Joshua Weiss, CPA, MST, RKL Advisors, RHS ’98 Angel (Dialectos) Helm, Retired Investment Banker, RHS ’80

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Scarlett Medina, one of the many newly naturalized originally from the Dominican Republic, with Judge Lillis.

Fall 2023 | 23

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Clifford, PetE, and Book ‘Em Week!

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he Law Foundation of Berks County continued their annual tradition of encouraging the love of reading in the community’s youth through the Book ’Em program. Headed by volunteer JoAnn Lightman and Law Journal & Office Manager Rose Johnson, this program provides books for students in pre-k and kindergarten classes in the Reading School District. This year, each pre-k student took home Clifford Makes the Team and every kindergarten student received Pete the Cat: Pete’s Big Lunch after their book was read to their entire class by one of our amazing attorney volunteers. This year, 83 volunteers visited 13 schools to read to 418 pre-k students in 25 reading sessions and 1,293 kindergarteners in 58 reading sessions, and because of your generosity, $3,830 was raised to be used to keep the program active for years to come. The program would not be a success year after year without the dedication of our readers and the generosity of our donors who make providing these books possible so every student can develop a joy of reading and begin building their own personal library.

Bar President Gabriela Raful has her pre-k students from Northwest Elementary School hold up their copy of Clifford Makes the Team before she reads them the story of Clifford trying out for the baseball team.

Judge Scott Lash reads an extra classroom book to Rodriguez’s pre-k class at 16th & Haak after he finished Clifford Makes the Team.

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Jacob Kramer and Ms. Ulrich’s pre-k class at Amanda Stoudt Elementary School pose with the new book they get to take home thanks to the generosity of the Law Foundation’s donors.

Jill Scheidt asks her students what toppings they like on their sandwiches as she reads Pete the Cat: Pete’s Big Lunch to a kindergarten class at 13th and Green Elementary School.

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MDJ Eric Taylor brought his robe and gavel to quiz Ms. Fodelman’s kindergarten students at Amanda Stoudt Elementary School on what they think he does for a living.

Ken Millman visits Ms. Kapoana’s pre-k class at 13th and Green Elementary School.

Kourtney Bernecker with Ms. Renaldi’s kindergarten class at 10th and Green Elementary School with their book Pete the Cat: Pete’s Big Lunch.

2023 Book ’Em Volunteers and Donors Raymond Baker Jana Barnett Honorable Patrick Barrett Mary Ellen Batman Kourtney Bernecker Justin Bodor Beth Bowers Honorable Tina Boyd Lucy Brito K. Kenneth Brown III Sarah Brugnoli Eden Bucher Steven Buck MDJ Tonya Butler Lauren Butterworth Nikolas Capitano Margaret Collins Karen Cook Alfred Crump, Jr. Richard Curley Sean Curran Michael Dautrich Taylor Davis Pamela DeMartino Renee Dietrich Colleen Dugan Schearer Andrew Fick Lucas Fick Charles Fitzpatrick Susan Frankowski

Allen Gehring Susan Gernert Michael Giles Dr. James A. Gilmartin Barry Groebel Sara Haines Clipp Alisa Hobart Ellen & Dan Huyett Rose Johnson Joanne Judge Robert Katzenmoyer Peggy Klinger David Kozloff Jacob Kramer Melissa Krishock Jay Kurtz Honorable Scott Lash Jesse Leisawitz Howard Lightman Stacey Lindsay Amy Litvinov Joan London Lauren Marks Todd Mays Kenneth Millman Kenneth Myers Shahily Negron Daniel Nevins Amy Nieves-Febres Charles Phillips

Jesse Pleet James Polyak Gabriela Raful Lisa Rapetti & Steve Tyainski Douglas Rauch William Roberts Jill Scheidt Latisha Schuenemann L. Drew Schwartz Wendy Sharetts Louis Shucker Lisa Siciliano Jim Snyder Deborah Sottosanti Honorable Jeffrey Sprecher Edwin Stock John Stott MDJ Eric Taylor Pamela VanFossen Kori Walter Tracy Walter Kathryn Wentzel Valerie West Greg Young Antanavage Farbiarz Sodomsky & Nigrini Stanshine & Sigal P.C. The Leges Group LLC White Stars Tours, Chris Kraras Fall 2023 | 25

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Snow tubing injury case challenges scope of high-risk activity waivers The following article was originally published in The Verdict, a newsletter published by the Philadelphia Trial Lawyers Association

By Michael Malvey, Esquire

P

ursuing personal injury claims arising from accidents occurring during “high risk” activities, such as skiing, skydiving, or paintballing, has been an uphill battle for plaintiffs due to the exculpatory waivers and releases that these facilities require their patrons sign prior to participation.

Pennsylvania Courts have consistently upheld the enforceability of pre-injury exculpatory waivers and releases, not only for attractions that have a known inherent risk of injury, such as ski resortsi and trampoline parks, but also for more innocuous services such as gyms and fitness centers.ii These releases, when properly drafted and signed by the injured participant, effectively immunize a business from personal injury claims arising from their negligent conduct, no matter how obvious. Challenges to the validity of these releases, whether for public policy grounds, lack of conspicuousness, or a plaintiff ’s failure to read them before signing, have largely been rejected by Pennsylvania’s appellate courts.iii While such releases may close the door for pursuing a personal injury claim arising from a defendant’s ordinary negligence, they do not extinguish an injured individual’s rights in their entirety.

In its decisions in Tayar v. Camelback and Feleccia v. Lackawanna Collegev, the Pennsylvania Supreme Court has clearly stated that a pre-injury exculpatory waiver cannot release claims for recklessness or gross negligence, respectively.

Despite the fact that claims of recklessness or gross negligence will survive an exculpatory release, these claims have a much higher burden of proof than one of ordinary negligence and are routinely challenged at both the pleadings and summary judgment stages. Trial courts have often struggled when deciding whether

to dismiss claims of reckless conduct or gross negligence as a matter of law; rather than decide whether the plaintiff has established the prima facie elements of these causes of action, courts will often look to other standards to determine if the plaintiff ’s burden of proof has been met. Since pre-injury releases are most commonly used by commercial entities who are seeking protection from foreseeable injuries their patron might suffer during the activity they are hosting, Courts will often look to “industry standards” as a polestar for determining whether the conduct in question rises to the level of recklessness or gross negligence.vi The appellate journey of Bourgeois v. Snow Time Inc., et. al.,vii a case handled by this author, is an example of how Pennsylvania courts have often grappled with determining whether an actor’s conduct rose to the level of recklessness or gross negligence and illustrates the courts’ tendency to look to industry standards for guidance rather than applying the fundamental elements of a tort cause of action.

The Bourgeois matter arises from a snow tubing injury that occurred at the Roundtop Mountain Resort in York County.

Mr. Bourgeois suffered catastrophic spinal cord injuries when the snow tube he was traveling on struck a folded rubber mat that had been placed into his path by the Resort’s employees, bringing his tube to a sudden stop but causing his body to be propelled headfirst into the snow. The Resort claimed that the use of what they called “deceleration mats” was an industry accepted practice, and that there had been no similar injuries Continued on next page

Fall 2023 | 27

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Snow Tubing Injury Case Challenges Scope of High-Risk Activity Waivers Continued from page 27

in the six years since they were implemented. The Bourgeoises alleged that deliberately folding and placing a mat designed, marketed, and sold for use on the floor of a commercial kitchen into the path of speeding snow tube riders created a foreseeable risk of serious injury or death that violated acceptable snow tubing industry standards.

In their Complaint, the Bourgeoises brought claims for negligence, recklessness, and gross negligence. The Defendant Resort immediately filed Preliminary Objections to the Bourgeoises’ recklessness and gross negligence claims, which were overruled. However, after the conclusion of discovery and production of the Bourgeoises’ expert reports, the Defendant Resort filed a Motion for Summary Judgment, which was granted by the Trial Court dismissing the Bourgeoises’ claims in their entirety. In support of its opinion striking the Bourgeoises’ recklessness claims, the Trial Court held that “Plaintiffs have not produced sufficient evidence to show than an industry standard exists for placing the mats at the bottom of hills for snow tubers.”

Similarly, in dismissing the Bourgeoises’ gross negligence claim, the Trial Court found “the Plaintiffs in the present case have not presented any evidence of directives which would permit the Court to find that Defendants were flagrant and grossly deviated from the standard of care when they folded the deceleration mats and placed them at the bottom of the hill.”

After an appeal to the Superior Court, a 2-1 majority panel affirmed the Trial Court’s grant of summary judgment, also citing an absence of evidence of industry standards as a basis for dismissing the Bourgeoises’ recklessness and gross negligence claims. Specifically, the Superior Court majority held that providing evidence of an industry accepted standard of care was an actual element of a recklessness and gross negligence cause of action: 28 | Berks Barrister

Therefore, we are constrained to agree with the trial court that [the Bourgeoises and their experts] failed to articulate the appropriate standard of care for the use of deceleration mats.

Without such a standard of care, [the Bourgeoises], as a matter of law, cannot establish [the Resort’s] duty to [the Bourgeoises] and that [the Resort] knew or should have known about the standard of care. Since [the Bourgeoises] failed to meet this element of recklessness and gross negligence, the trial court properly granted [the Resort’s] Motion for Summary Judgment on this issue.

The Pennsylvania Supreme Court granted the Bourgeoises’ Petition for Allowance to Appeal on four issues, among which was: Did the majority panel opinion conflict with existing law by requiring that a violation of industry standards be demonstrated for Petitioners to sustain a recklessness or gross negligence cause of action against Respondents?

In a 7-0 Opinion reversing and remanding the two lower court opinions, the Supreme Court clarified that proving a violation of established industry standards was not required to sustain claims of recklessness or gross negligence. In reaching its Opinion, the Supreme Court noted that identifying or defining an industry standard that was violated was not necessary to establish the duty that the defendant Resort owed its patrons: Instead of viewing the expert reports in the light most favorable to the Bourgeoises, the Superior Court disregarded the expert reports because they failed to define an industry standard for the placement of deceleration mats, which in the Superior Court’s view was necessary to establish the standard of care. However, “[c]ompliance with the statute or regulation is admissible as evidence of the actor’s exercise of due care, but such compliance ‘does not prevent a finding of negligence where a reasonable [person] would take additional precautions.’”viii

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The Court would go on to hold that proof that an articulated standard of care existed that could be violated was not necessary for a duty to be established in the context of a recklessness or gross negligence case.

[The Resort’s] duty was not to comply with industry standards; its duty was to exercise reasonable care to protect its patrons against unreasonable risks that its conduct of using rubber mats to decelerate snow tubers created.

It is this author’s opinion that the Supreme Court’s decision in Bourgeois sends a clear reminder to Pennsylvania Courts that a plaintiff does not need to establish the violation of a pre-defined standard of care to sustain a recklessness and gross negligence cause of action. As noted in the passage above, ultimately a recklessness or gross negligence claim comes down to the question of whether a defendant breached its duty to exercise reasonable care to protect its patrons against unreasonable risks that its conduct created. In a sign that the Supreme Court’s message in Bourgeois has been received, the Superior Court en banc recently reversed a grant of summary judgment to a plaintiff ’s recklessness claims in a case involving a zip lining accident, focusing not on “industry standards” but on the more fundamental question of whether the defendant: … engaged in intentional acts, knowing or having reason to know facts which would lead a reasonable person to realize that it thereby created an unreasonable risk of physical harm that was substantially greater than incompetence or unskillfulness.

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Thus, the Bourgeois opinion comes at an opportune time, as more and more businesses are requiring patrons to sign exculpatory releases before providing their services. With this clear guidance, the uphill battle to overcome an exculpatory release has now become a little less steep.

Michael Malvey is a senior partner and trial lawyer with Galfand Berger LLP, which has a Reading office.

Claims for skiing and snowboarding related accidents are also limited by the “Skiers Responsibility Act.” 42 Pa.C.S. § 7102(c). However, snow tubing accidents such as the one described in this article are not subject to this statute. i

Toro v. Fitness Int’l, LLC, 2016 Pa. Super. LEXIS 655.

ii

iii See e.g. Chepkevich v. Hidden Valley Resort, LP, 2 A.3d 1174 (Pa. 2010); In re Estate of Boardman, 80 A.3d 820 (Pa. Super. 2013); Vinkoor v. Pedal Pennsylvania, Inc., 974 A.2d 1233 (Pa. Commw. 2009). iv v

47 A.3d 1190 (Pa. 2012).

215 A.3d 3 (Pa. 2019).

Unlike reckless conduct, which is defined by Restatement of Torts 2nd Section 500 and its comments, gross negligence has generally lacked a concise definition other than, and has been most frequently used in cases involving medical malpractice, which by definition requires an analysis of the applicable standard of care. See e.g.

Bloom v. Dubois Regional Medical Center, 597 A.2d 671 (Pa. Super 1991). vi

vii

242 A.3d 637 (Pa. 2020).

viii Citing Berkebile v. Brantley Helicopter Corp., 281 A.2d 707, 710; quoting RESTATEMENT (SECOND) OF TORTS § 288C). ix Monroe v. CBH 20, LP, et. al. 2022 PA Super 197; citing Bourgeois, 242 A.3d at 657-58.

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Singing Music’s Praises

By Angélica Matías, Esquire

I

t can send us a message without using any words. It can move us while we’re perfectly still. And sometimes, it can even help invisible wounds heal.

What can do all of this? Music.

Music can connect us all regardless of our generation or country of origin. Music bridges cultural and political divisions.

Music helps us learn, remember, relax, and reenergize.

Take, for example, the 1985 song “We are the World.” Fortyfive artists from all genres united to raise awareness and funds for famine relief in Africa. Following the 9/11 terror attacks in the United States, 40 Latin music interpreters collaborated to create “El Ultimo Adiós,” helping us process our collective loss and deal with the overwhelming grief of losing 2,977 innocent lives.

More recently, during the COVID-19 pandemic, artists gathered in Spain to rerecord the emblematic song, “Resistiré,” while in the United States, we enjoyed the special, “One World Together at Home” concert.

These efforts exemplify how music can uplift our spirits and move us, in times when we need it the most.

As individuals, music has helped us learn. Setting the ABCs to music aided us in learning the alphabet and fun ditties made 30 | Berks Barrister

memorizing multiplication tables a little easier than flash cards alone.

Music may boost your brainpower when studying, too.

Research reveals that our brains look for patterns to better understand, recall, and process information.i Further, attorneys may want to turn on some tunes for certain tasks, especially when the work requires making associations, that will improve memory and facilitate recalling facts later.

Music has been linked to cognitive function and emotions.

That may explain why many of us remember the songs we learn in our early school years. The Mayo Clinic recommends music not only for the benefit of Alzheimer’s patients but to improve the wellbeing of caregivers. In a recently published article, Mayo Clinic research indicates: “musical memories often are preserved in Alzheimer’s disease, though, because key brain areas linked to musical memory are relatively undamaged by the disease. Research suggests that listening to or singing songs can provide emotional and behavioral benefits for people with Alzheimer’s disease and other types of dementia. Music also can benefit caregivers by reducing anxiety and distress, lightening the mood, and providing a way to connect with loved ones who have Alzheimer’s disease — especially those who have difficulty communicating.ii” The benefits of music continue to be investigated.

According to studies published

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by the National Library of Medicine: “current applications of music and rhythm therapy in neurological rehabilitation are reported for Parkinson disease, stroke, multiple sclerosis, neurodegenerative diseases (dementia and Alzheimer disease) but also deafness, psychiatric disorders and neuro-developmental diseases. The beneficial effects of musical activities are described in the sphere of mood and neuropsychiatric symptoms. Moreover, improvements in cognitive performance based on active music interventions as well as through music listening have led to recent impressive studies on aphasia, attention, memory and visio-spatial skills.iii” How can members of the legal profession avail themselves to the range of benefits that music has to offer? Can music promote wellbeing for lawyers? The American Bar Association’s National Task Force on Lawyer Well-Being issued a report in 2017 with recommendations on how to build a better future for the legal profession based on the premise that “to be a good lawyer, one has to be a healthy lawyer.”

The report’s recommendations focus on five central themes: (1) identifying stakeholders and the role each of them can play in reducing the level of toxicity in the legal profession, (2) eliminating the stigma associated with help-seeking behaviors, (3) emphasizing that well-being is an indispensable part of a lawyer’s duty of competence, (4) educating lawyers, judges, and law students on lawyer well-being issues, and (5) taking small, incremental steps to change how law is practiced and how lawyers are regulated to instill greater well-being in the profession.iv Here’s my recommendation: Find your music!

Find how to incorporate music into your daily routines.

Explore how certain rhythms make you feel. Learn new lyrics; remember old ones. Before engaging in a difficult task or conversation, listen to music to cheer you up or calm you down.

Next time you are about to turn your radio dial to catch up on the latest news, pause and consider a station that will allow yourself to enjoy the gift of music.

Ms. Matias is an attorney in the Reading office of MidPenn Legal Services. The views expressed in the opinion are her own and not representative of any official position of MidPenn Legal Services.

“The benefits of studying with music”. Florida National University. May be found here https://www.fnu.edu last visited on June 21, 2023. i

“Consumer Health: Can music help someone with Alzheimer’s disease”. Mayo Clinic. May be found here: https://newsnetwork.mayoclinic.org/discussion/ consumer-health-can-music-help-someone-with-alzheimers-disease/ last visited on June 21, 2023. ii

Laffont I, Dalla Bella S. “Music, rhythm, rehabilitation and the brain: From pleasure to synchronization of biological rhythms”. Ann Phys Rehabil Med. 2018 Nov; 61(6):363-364. Available at https://www.ncbi.nlm.nih.gov. iii

Last visited on June 21, 2023.

“The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (The Report of the National Task Force on Lawyer Well-Being, August 2017) Available at https://www.americanbar.org/content/dam/aba/administrative/ professional_responsibility/lawyer_well_being_report_final.pdf Last visited on June 21, 2023. iv

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G.R.A.C.E. a blessing for palate, community

By Susan N. Denaro, Esquire

G

race. Some people bow their heads and say grace before dining, but those in the know who want to be truly blessed call G.R.A.C.E. to cater their gatherings.

G.R.A.C.E. stands for the Greater Reading Academy for Culinary Education, and it is the brainchild of Chef Isaac Gonzalez-Perez.

This not-for-profit was created to restock the culinary industry’s talent pipeline. It’s a goal that has taken on greater importance in the wake of the COVID pandemic decimating the food industry’s talent pool.

G.R.A.C.E. leadership has partnered with the O’Pake Center at Alvernia University to assist with carrying out its mission. A three-story, mixed-used building with student-run dining will be home for G.R.A.C.E. at 758 Penn Street, Reading.

Fortunately for Berks County foodies, in addition to teaching and advocating for volunteerism, Chef Gonzalez-Perez provides excellent catering services.

Chef Isaac Gonzalez-Perez

While his talents were on display in the VIP tent for the City of Reading’s 275th Birthday Celebration this fall, I discovered the chef at a cocktail party hosted by Virginia and Jeffrey Rush in honor of their daughter Libby’s 30th birthday. Wisely, the Rushes gave Chef Isaac free reign with the menu, merely asking that the food reflect their daughter’s love of travel and various cultures.

The result was a well-balanced menu of nibbles that were each more dazzling than the other.

My favorite item of the night was a tuna bite that was both complex and simple at the same time. It started with a wasabi rice cracker that served as the carrier for a pillowy round of sushi rice that was delicately seasoned with a Japanese spice blend called Katsuo Fumi Furikake, featuring seaweed, sesame seeds, bonito flakes, and wasabi. A thin English cucumber slice topped the rice before a righteously seared square of tuna crowned it all. A ponzuinfused mayo rounded out the savory offering. I confess, I gave a prayer of thanks as I reached for my second and third servings of it.

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The Chef ’s favorite appetizer at the party was his lamb meatball that was seasoned with both garam masala and harissa. Perfectly cooked to showcase the tenderness of the lamb, it was drizzled with a Greek yogurt-based sauce that was masterfully seasoned with honey and Thai chili pepper. Garnished with mint, and unlike the tuna which was too big to eat in one bite, these meatballs were the perfect size to pop.

Because Chef Isaac likes to balance savory and sweet on the same table, his third truly innovative appetizer was an Indianinspired curried chicken tartlet that included toasted almonds and golden raisins. He dusted the top of each tartlet with powdered sugar and cinnamon before adding a drizzle of chocolate-infused balsamic vinegar. The curry seasoning helped this bite not be overly sweet and its texture, thanks to the almonds, was a nice contrast to the soft lamb meatball.

As a nod to the vegetarians at the party, he made a tray of vegetable lasagna that was packed with eggplant, zucchini, spinach, squash, crispy shallots, and surprisingly, peas, to help give it a little more texture. It took all my self-restraint to not ask to take a leftover slice home for lunch the next day, but honestly, I’m not sure any was left. I can’t remember the last cocktail party I attended that all the food seemed to disappear as quickly as Chef Isaac’s.

While the food was delightful in every sense of the word, I found the time I spent talking with Chef Isaac at the party even more enjoyable. Born in Reading, he was raised by a greatgrandmother named Odessa who instilled in him a love of cooking soul food. But just like my niece who lives to travel, he has toured the world, expanding his culinary skills in the process. He served as culinary specialist during his active duty in the US Navy and then was a logistic specialist during his service in the Reserves.

The influence of his two years living in Japan after his military

service was reflected in that dazzling tuna appetizer. Despite his love of Japan cuisine, his favorite food to eat is Indian fare, something I could have guessed based upon that curried chicken tartlet.

Because no proper birthday celebration is complete without a birthday cake, Chef Isaac, at the request of the hosts, made a stunning chocolate peanut butter cake. But, like all the other dishes we enjoyed, he put his own spin on it by using a luscious marshmallow fondant icing. Even the party goers who don’t typically eat dessert couldn’t resist it upon hearing the oohs and aahs of those not shy about that icing.

All it took was a couple of bites to realize Chef Isaac cooks from and with his soul, and I can’t wait to sample what he creates next.

During our talk, he mentioned something about another tartlet he makes with fig jam, smoked bacon, and candied orange peels, as well as a coffee-infused waffle topped with a pumpkin breaded fried chicken and Major Greys Mango Chutney. That dish is finished with a drizzle of that chocolate balsamic vinegar. Now I’m trying to find an excuse to have him cater a party of my own soon as I want to taste both of those dishes again before my niece has another milestone birthday.

Berks County is lucky that this native son and father of four returned here to live and work. A believer in sharing God’s grace, his commitment to nurturing the creativity of aspiring chefs, bakers and artisans enhances the Greater Reading area and extends beyond the classroom into grassroot volunteerism at both the food bank and homeless shelter level. May God continue to bless Chef Isaac, G.R.A.C.E., and the rest of us who appreciate him creativity.

Ms. Denaro is with the Wyomissing law firm of Georgeadis||Setley.

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Annual Golf Competition & Picnic This year’s annual golf competition and picnic took place on a perfect spring day on May 18 at the Moselem Springs Golf Course in Fleetwood. A dozen golf foursomes engaged in some friendly competition throughout the day, and a few members took home the top awards. Victoria Gallen-Shutt and Mark Merolla won Longest Drive in their respective women’s and men’s categories. Julie Marburger won the women’s Closest to the Pin while Phil Edwards won the men’s Closest to the Pin. During the evening, the golfers were joined by their fellow members of the bar association to enjoy some drinks, a delicious buffet, great conversation, and a beautiful night on the Moselem Springs Golf Course’s patio.

Tim Bitting kicks off the golf competition with a long drive on the first hole.

Mark Merolla, Kurt Geishauser, John Stott, and Jack Mancuso.

John Speicher, Greg Young, and Bill Blumer catch up before dinner is served.

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Alfred Stirba, Travis Smart, Corey Chwiecko, and Charles Dutko after completing their run on the 12th hole.

Members gather on the patio at Moselem Springs Golf Course during the picnic.

Colin MacFarlane, Matt Lasewicz, and John Forry.

Congratulations to Thad Gelsinger, Fred Nice, Matthew Mayer, and Ben Leisawitz for achieving the lowest team score and winning the golf competition.

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Susanna Fultz, Jordan Fegley, Kelsey Frankowski, and Entertainment Committee Chair Julie Marburger sport their matching pink polos to show off their team pride.

Phil Edwards and Julie Marburger won Closest to the Pin in their respective male and female categories.

David Kozloff shows Christopher Garrell how it’s done.

Ken Millman, Chuck Phillips, and Eric Fabrizio.

Victoria Gallen-Shutt works to keep moving her ball down the green after her great tee off, which won her the Longest Drive in the women’s category.

Bill Blumer, John Speicher, Greg Young, and Mike Mixell, all of Barley Snyder, pause for a quick photo halfway through the course.

Fred Nice tees off at the 12th hole of Moselem Springs Golf Course.

Entertainment Committee Vice-Chair Matthew Lasewicz, Drew Schwartz, Victoria Gallen-Shutt, and Jacob Kramer.

Alfred Stirba attempts to get himself out of a sand trap on the 15th hole.

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Having a Ball at the

Pets in th e

Summer kicked off at the bar association with the annual Pets at the Park event, hosted by the Wellness Committee. Members, their families, and their pets gathered at Muhlenberg Township’s Jim Dietrich Park on June 3 to enjoy a late morning meetup with their four-legged companions. The Perk Up Truck provided delicious treats, from coffees and smoothies to even puppichinos and watermelon wags for the dogs. This year’s event featured some friendly competition for the dogs as members voted for their favorite four-legged contestants in the following categories: Best Manners, Best Groomed, Most Energetic, and Best in Show.

Law Foundation President Valerie West and Deborah Detwiler show off their dog Connor’s beautiful coat, which won him the Best Groomed award.

MDJ Eric Taylor’s daughter Saorise cools off Dan Nevin’s dog Sophie with water before the dogs take off running around Jim Dietrich’s dog park.

Jesse Leisawitz’s daughter Rose with their dog Mila.

Terrie Taylor poses with her dog Coco and her iced latte from the Perk Up Truck.

Law Journal Assistant Editor Valerie Kramer with daughter Ellie, husband Steve, and their sweet pup Chester.

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Saorise and Deaglan, children of MDJ Eric Taylor, sneak some treats to Joan London’s dog Phillis, which she discovered.

Maggie and Teddy, children of Jacqueline Hamer, pose with their dog Joey, who won Best in Show at the first ever Pets at the Park Contest.

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Park

Best buddies Sophie, who won Best Manners, and Ben are excited to see one another again at this year’s Pets at the Park.

Members and their families take a break from the puppichino fueled dog energy to get their own pick-me-ups from the Perk Up Truck.

Jim Polyak attempts, and fails, to get his dog Roscoe to pose for a family photo with his son.

Connor prepares to give Bunny a ride around the dog park.

Valeen Hykes’ teeny, tiny fourlegged family member Bunny!

Chris Garrell, Courtney Matina, and their dog Callie.

Taylor Davis (center) and Brad Davis (right) with their dog Roo, who won Most Energetic, and Bar President Gabby Raful’s son Julian.

Jesse Leisawitz and daughter Rose play fetch with many of the members’ dogs at the park.

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M i s c e l l a n e o u s

Congratulations to President-elect Dan Nevins for finishing the Chicago Marathon on October 8th in a personal best time of 3 hours, 10 minutes and 28 seconds. The famously flat and fast 26.2 mile course started and ended in Grant Park, winding its way through diverse city neighborhoods and crossing many of Chicago’s famed bridges while enthusiastic spectators lined the course cheering on the field of 47,000 runners.

Fortunately, the Windy City did not live up to its name on race day, and the calm winds and temperatures in the 40s set the stage for fast finishes, including a world record by the men’s winner, Kelvin Kiptum, a 23-year-old who finished in an astounding 2 hours and 35 seconds (a pace of 4:36 per mile) and a course record for the women’s winner, Sifan Hassan, in a time of 2:13:34.

Members and their families took a break from the games and rollercoasters to enjoy a picnic together during Berks Bar Day at Hersheypark on June 24.

Chicago was Dan’s 14th marathon and one of his favorite race experiences to date. Dan followed his success in Chicago with a top overall male finish at the Reading Hospital Road Run 5k just one week later. Next up for Dan is the pinnacle of marathons, the 128th running of the prestigious Boston Marathon on April 15, 2024, for which he beat the qualifying standard by nearly 9 minutes.

Keep up the good running, Dan!

Clinic organizers and volunteer attorneys celebrate a successful Name Change Petition Clinic, which was held at the LGBT Center of Greater Reading on August 23. Berks Bar members helped 12 individuals complete the process of changing their names. (From left) Dana Hoffman of the LGBT Center of Greater Reading, Ann Endres, Gabby Raful, Lucy Brito, Kori Walter, MDJ Butler, Mary Jacob, Valerie West, Julie Foster, and Katie Wentzel.

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LINCOLN VS. ORIGINALISM

L

ast year I spent a weekend in Gettysburg reuniting with a small group of work comp colleagues from around Pennsylvania, including judges and attorneys.

The time together included a walking tour of Gettysburg. It ended with a picture of us gathered around the town square’s figure of Abraham Lincoln gesturing to the room where he stayed while in town to deliver what came to be known as the immortal Gettysburg Address.

After returning home, I read a Wall Street Journal op-ed piece by Princeton University’s Allen C. Guelzo titled, “Lincoln’s Vision of Democracy,” analyzing the famous Address.

Reading that article spurred me to search my personal, cluttered library for a book I purchased years ago but had never read—"Lincoln at Gettysburg" by Garry Wills, published in 1992. It is his 304-page dissection of the Address. Now that I have finally read the book, I wish to share some observations as we mark the 160th Anniversary of the 3-minute oration given on November 19, 1863.

First, let’s revisit those 272 words, just as delivered at the new cemetery’s dedication and set forth in the Wills book: Fourscore and seven years ago our fathers brought forth upon this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. [Applause] Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.

We are met on a great battle-field of that war. We are met to dedicate a portion of it as the final-resting place of those who here gave their lives that that nation might live.

It is altogether fitting and proper that we should do this.

But in a larger sense we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead, who struggled here, have consecrated it far above our power to add or detract.

[Applause] The world will little note nor long remember what we say here, but it can never forget what they did here. [Applause] It is for us, the living, rather to be dedicated here to the unfinished work that they have thus far so nobly carried on. [Applause] It is rather for us to be here dedicated to the great task remaining before us,--that

By Donald F. Smith, Jr., Esquire from these honored dead we take increased devotion to the cause for which they here gave the last full measure of devotion,--that we here highly resolve that the dead shall not have died in vain [Applause], that the nation shall, under God, have a new birth of freedom, and that the government of the people, by the people, and for the people, shall not perish from the earth. [Long continued applause] In his Journal article, Mr. Guelzo poses, but fails, to answer several questions, including: “Why the invocation of 1776 and the Declaration of Independence

rather than 1787 and the Constitution?”

Instead, he focuses on the concluding “triplet,” the “three fundamental elements of democracy.”

But, the aforesaid question is more interesting, and Mr. Wills expends many pages addressing why President Lincoln began with the Declaration’s phrase “all men are created equal.”

When ratified in 1787 the Constitution, although not mentioning the word “slave” or “slavery,” nevertheless, provided provisions for recovery of a fugitive “person held to service or labor” and for the continuation of the “Migration or Importation of such Persons” for another twenty years.

Reviewing Lincoln’s prior speeches and writings, Mr. Wills opines Lincoln believed that the idea of equality expressed in the Declaration gave America its “moral identity.” Therefore, his purpose of citing the work of “our fathers” 87 years before was to “cleanse the Constitution.” By doing so, “[h]e altered the document from within” and “performed one of the most daring acts of open-air sleight-of-hand ever witnessed by the unsuspecting…The crowd departed with a new thing in its ideological luggage, that new constitution Lincoln had substituted for the one they brought there with them.”

However, the Chicago Times called him out on it at the time. Noting that the Constitution made no reference to equality, the newspaper, according to Mr. Wills, “said that Lincoln was betraying the instrument he was on oath to defend…”

Objections to such “sleight-of-hand” were still being made one hundred years later. In his 1963 book, Willmoore Kendall, conservative political philosopher and a founder of the National Review, complained Lincoln’s reference to the Declaration “attempted a new act of founding, involving concretely a startling new interpretation of that principle of the founders which declared that ‘all men are created equal.’”

As one who vents against “originalism”—interpreting the Constitution as to its original understanding when ratified—I enjoyed reading the conclusion reached by Mr. Wills: the job of “‘original intent’ conservatives…would be comparatively easy if they did not have to work against the values created by the Gettysburg Address.”

Applying those values, and not interpreting the Constitution according to originalism, stimulated “a new birth of freedom” for Blacks, women, gays, disenfranchised voters, and those wrongly accused. Thus, creating a government for all the people.

Originalism fails Lincoln’s moral identity test.

Mr. Smith is Executive Director Emeritus of the Berks County Bar Association.

Fall 2023 | 39

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