The Berks Barrister Winter 2021

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The Award-Winning Publication of the Berks County Bar Association

Engineering Access to Justice Also: Pennsylvania Enacts New Protections for Living Donors

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Content for Winter 2021

BOARD OF DIRECTORS JUSTIN D. BODOR, President JAMES M. SMITH, President-Elect GABRIELA G. RAFUL, Vice President PAUL F. TROISI, Treasurer NIKOLAS D. CAPITANO, Secretary ROBERT R. KREITZ, Director ANDREA E. MERTZ, Director THAD M. GELSINGER, Director JOHN E. REIGLE, Director AMY J. LITVINOV, Director HON. TONYA A. BUTLER, Director EDEN R. BUCHER, Immediate Past President STEPHANIE R. HAGER, President YLS

BAR ASSOCIATION STAFF KORI A. WALTER, Executive Director ROSE M. JOHNSON, Law Journal Secretary/Office Manager CAROLYN FAIR, Marketing Manager LUCY BRITO, Community Service Manager PAMELA L. VANFOSSEN, Law Journal Editor J. CHADWICK SCHNEE, Law Journal Assistant Editor MATTHEW M. MAYER, Barrister Editor

Please submit materials or comments to: Berks County Bar Association 544 Court Street, P.O. Box 1058 Reading, PA 19603-1058 Phone: 610.375.4591 Fax: 610.373.0256 Email:

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

Engineering Access to Justice

12 Pennsylvania Enacts New Protections for Living Donors 15 New Board Members 16 Fish Pond West Steak & Lobster Dinner 17 Pets at the Park 21 Spotlight on New Members 22 Pardon Project of Berks County 26 Annual Fall Meeting 30 In Memoriam

Departments: 6

Opening Statement

18 Book Review 24 Restaurant Review 31 Closing Argument On the cover: PBA Pro Bono Award recipients Jesse Pleet and Will Matthews strive to ensure equal access to “Justice” and fair application of “Law” – the words inscribed above the Sixth Street entrance to the Berks County Courthouse.

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Opening Statement

One final thank you T

ime flies when you’re having fun. It is almost hard to believe that 2021 is over, as it feels like yesterday that Past-President Eden Bucher presented me with the Presidential Medallion more than 13 months ago at our Annual Membership meeting, which was held virtually for the first time in our history. At the risk of sounding like a broken record, I just wanted to take a moment to say thank you for putting your faith and trust in me as your president in 2021. I consider myself blessed to be part of this organization. Serving as the 88th president has been one of the great honors of my life.

I have no doubt that I could fill this entire issue with expressions of gratitude and examples of how so many of our talented members have offered invaluable help during my tenure. I’d be remiss if I didn’t start with Executive Director Kori Walter and Executive Director Emeritus Don Smith, both of whom are tremendous leaders of our organization. Due to their tireless dedication over the years, we are a Bar Association that is the envy of all other Bar Associations around the Commonwealth. I also want to thank all the people with whom I have served on the Board, all the way back to my time as president of the Young Lawyers Section. Each of you has treated me with so much kindness. You went above and beyond to take me under your collective wings, teaching me what this organization is about, and demonstrating what it means to represent the members of the Bar Association. Not to mention the critical role lawyers have as leaders in our community. While 2021 started much like 2020, I am happy to report we are starting to see the light at the end of the tunnel. I am a glass half-full kind of person, so I look at the change from inperson meetings to meetings via Zoom as an unexpected blessing. Virtual meetings allowed me to be at so many more committee and section meetings, and I was continually impressed with, and grateful for, the hard work of the sections and committees—you are the engine that moves our Association forward. 6 | Berks Barrister

I’m proud of the way the Association adapted to provide value and services to our members. I had a goal of having at least 12 lunch and learn CLEs before the April CLE compliance period. We had over 20.

I also wanted to stress community engagement and community service. We expanded community service opportunities by developing partnerships with the Community Justice Project, Berks Connections/Pretrial Services, and other community leaders and organizations. For example, in the spring our members attended a training session and volunteered to assist members of our community applying to renew their Deferred Action for Childhood Arrivals – or DACA – status. Then in the fall, our members stepped up again, attending another training session on the pardons process in Pennsylvania and volunteering to assist those seeking pardons. Also, I’m happy to say that we improved our infrastructure as we are in the process of moving to a new association management software system, which I am confident will make it easier than ever for our members to participate in events and CLE seminars and streamline our operations for staff. In conclusion, I want to congratulate Jim Smith on taking the reins as our 89th president. Our organization will unquestionably be in great hands with Jim. He is a natural-born leader, as well as a pragmatist and a problem solver. I and other members of our Board of Directors sought and valued Jim’s counsel on many key decisions this past year. I simply cannot thank Jim enough for his guidance, and I am extremely lucky to call him a friend. It has become a Berks County tradition during our Annual meeting to have all the past Bar presidents in attendance come forward for a passing of the gavel ceremony. The ceremony symbolizes that the incoming president “can always call upon the wisdom of experience of our Past Presidents.” It is my honor to join the distinguished ranks of Berks County Bar Association’s past presidents. And I can only hope that I can provide as much wisdom and insight as the 87 presidents who came before me. I’m excited to see Jim flourish and lead our Bar Association boldly. Thank you for the tremendous faith you put in me. I am forever grateful.

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Engineering Access to Justice

By Donald F. Smith, Jr., Esquire


esse L. Pleet and William C. Matthews, II have each been recognized by the Pennsylvania Bar Association for their volunteer work, above the norm, with the Eviction Prevention Project being conducted in the courtroom of Magisterial District Judge Tonya Butler.

Beginning on September 9, 2020, the project has had more than ten attorneys participate, giving of their time on an as-needed basis to help tenants facing eviction. Also present for the hearings have been Kimberly Talbot, Executive Director of Reading’s Human Relations Commission, and representatives of the Berks Coalition to End Homelessness to take applications for rental assistance. The project has received statewide recognition for its success.

Judge Butler praises the program: “Having the Eviction Prevention Project with attorneys, such as Attorneys Pleet and Matthews, in court to represent tenants has been such a blessing. They are empathetic to what is going on in Reading and are able to provide hope to the parties. Equally important, these attorneys provide the necessary resources and education on available rental assistance programs. Landlords and tenants have equally benefitted from the project and the involvement of the attorneys.” When he’s not volunteering, Jesse L. Pleet is often in the cockpit of his 1973 Piper Cherokee. 8 | Berks Barrister

Of the volunteering attorneys assisting in the program, Will and Jesse have logged the most hours and have taken on difficult cases, mediating them successfully. Therefore, at the Bar Association’s Annual Meeting in October, David

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Refer your matters with confidence. When at their most vulnerable, your clients need a personal injury lawyer they can trust. With nearly 40 years of experience, Dan will work to make sure your clients receive the help they need. Jesse Pleet cruising at an altitude of 3,000 feet during a recent flight near Hershey, Pa. Trevaskis, the PBA’s Pro Bono Coordinator, announced that the two were recipients of the PBA’s 2021 Pro Bono Award. Jesse, our Association’s 2015 President, was born and raised in Lebanon County, but his connection to Berks County began at a young age when he started to attend Camp Conrad Weiser. As an eight-year-old, it was at the Camp that Jesse learned to shoot, beginning with BB guns, then a .22 long rifle and advancing, as a teenager, to shotguns with trap shooting.

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He became a sharpshooter, and, while a student at Pennsylvania State University, Jesse lettered on the varsity rifle team and served as a student patrol officer on campus. Not limiting himself in extracurricular activities, the future lawyer was in the Blue Band. He played the saxophone in the famous marching band and clarinet in the concert band, achieving third-chair status as a freshman. Upon graduation, the accounting major was unsure of his career choice. Thinking of entering law enforcement, he attended Alvernia College at night for a year, accumulating thirty credits in criminal justice. During the day he worked in his father’s Lebanon clothing store. Finally, he saw the light and matriculated at the Delaware Law School in 1978.

Following his first year of law school, he had a summer internship with the Pennsylvania Department of Revenue tasked with researching inheritance tax law. “I did not like what I was doing.” Back at school, he came to be inspired by two guest lecturers. “I was mesmerized by the accomplishments of A. Charles Peruto, Sr., a high-profile criminal defense attorney.” On the civil side, “I found the stories told by Paul Anapol, a famous Philadelphia trial attorney, to be amazing.” Jesse caught the bug and convinced Mr. Anapol to allow him to work parttime with his firm during Jesse’s third year of law school.

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Engineering Access to Justice Continued from page 9 Once armed with a law degree in 1981, Jesse began a judicial clerkship in Lebanon County. After one year of clerking, “I knew I wanted to be a trial attorney. I was so impressed with the preparation of the insurance defense attorneys.”

So, knowing David M. Kozloff from his Camp Conrad Weiser days, Jesse joined Dave’s firm, Kozloff, Diener, Turner & Payne at the time, in 1982. Two years later he had his first insurance defense trial, and he averaged four to five trials annually thereafter. He became partner in 1986.

Eventually, Jesse decided to strike out on his own and started his own firm in 1994. He retired from the practice of law at the end of 2020 after several years of being a partner at Leisawitz Heller.

The father of three daughters, Jesse is an avid skier and a licensed pilot, having his own plane since 1986. He has flown extensively, west as far as Wisconsin, north to Nantucket and south to North Carolina and many places in between.

Jesse has always been committed to doing pro bono. A long-time member of the PBA’s Committee on Legal Ethics and Professional Responsibility, he takes Rule 6.1’s obligation to “render public interest legal service” to heart. “I never wanted to pay the opt-out fee, even when my last firm would have done so.” Instead, he took his turn at MidPenn Legal Services to help low income clients.

The former president also cites the Bar Association’s expressed Mission of striving “to support the community by… assuring access to justice…” Jesse explains, “Lawyers should embrace a way to give back.”

landlord myself, I know the landlord side, and I know enough of the tenant side to attempt to bring the sides together.”

Law was not Will’s first career choice as he went off to college. Raised in Chester County, Will, an African American, had attended mostly white elementary and secondary schools. When it came time to pick a college, “my parents wanted me to go to a predominately Black school, to be immersed in a culture different from what I had encountered in the past.” So, he went to Lincoln University. “My four years there were an enlightening, robust and enjoyable time. When I look back on my college experience, it is with a great deal of satisfaction.”

It turned out to be life changing. He had gone to college intending to become an engineer. “During my first year I took a course taught by an attorney who had a profound impact on me. I remember him saying, ‘Being a lawyer presents unique opportunities. The critical thinking method you learn in law school prepares you for any endeavor in life.’ Upon hearing that, I decided to become a lawyer.” Following graduation from Lincoln, Will entered Howard University School of Law, following in the undergrad and graduate “footsteps of Thurgood Marshall.” Concentrating his studies in commercial and corporate law, and earning a spot on the Howard University Law Journal as technical editor, Will graduated in 1977.

But in retirement? “I am in my bonus years and want to help with this noble Eviction Prevention Project. I am not willing to fade away, having so much experience. It is about just being there with the tenant; otherwise, the eviction hearing is a scary time for them.”

He returned home and went to work with a newly formed Chester County law firm of “two young Black attorneys with a retired judge.” A year later he accepted an offer to work as a staff attorney with the Pennsylvania Public Utility Commission, then chaired by W. Wilson Goode.

Like Jesse, Will Matthews is not a Berks native, but since living in Berks, he has felt a need to become active in pro bono work. When attorneys were being recruited to participate in the Eviction Prevention Project, “I thought this was an ideal opportunity for me, right down my alley of interests. As a

And so they did. Within a couple of years, two rental properties came up for sale on the block. In talking with his wife,

Jesse is a seasoned member of the Berks County Bar Association’s Alternative Dispute Resolution panel. Those mediation skills, combined with the advocacy skills he has acquired over many years of trial work, have made him an integral part of the Eviction Prevention Project’s success.

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With that, Will and his wife, Linda, moved to Harrisburg. “People were trying to convince us to buy a home in the suburbs, but we wanted to live in Harrisburg. We found a great, semidetached brownstone home” on the 1700 block of State Street, which was “a boulevard of doctors and lawyers in the early 1920s.” The home “had great bones but had not been treated well. Realizing the block could go either way, we came in to make the most of it.”

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Instead, Will believes the IRRC serves a valuable purpose. “The Commission is a bridge between the legislature and the governor, making sure the proposed regulations are not burdensome or duplicative.”

Prompting a move to Johnstown three years later was an offer to become Penelec’s corporate counsel and secretary. While a tremendous opportunity for Will, both he and Linda had concerns about their four-year-old daughter, Lindsay, growing up in Johnstown. The area felt isolated with limited opportunities; the city had never recovered from the last flood. “We decided to give it four years.”

And that is what they did. At the four-year mark, “we were blessed to receive an offer to become corporate secretary for Met- Ed in Reading.” He eventually became Division Counsel and Assistant Corporate Secretary for the umbrella GPU Service Company, managing budgets in excess of 4.5 million dollars and directing its legal activities, while based in Reading. “It was a challenging environment but exciting, quite the opposite from Johnstown in terms of dynamics.”

Six years later, in 2002, Will left GPU when it was acquired by First Energy, and he, along with two partners, formed ReLTECK, LLC. The firm contracts with railroads, utilities and “Rails to Trails” programs to negotiate, manage and police right-of-way leases and licenses, as well as collecting rent that is due. Will retired as president and chief operating officer in 2009. Since retiring, he has a limited law practice but is very involved in the management of their rental properties in Harrisburg. You can often find William C. Matthews II in the garage tinkering with his 1968 Porsche 912. the question was: “We can invest in the block and have a say in what happens. Are we going to be in or out?” They decided to invest. Over the years, the adjoining property was purchased, and then two other properties on the block. “We then had the ability to choose our neighbors. While the properties are not the Taj Mahal, they are clean and safe. We may not own the entire block but we have a nucleus, enough to keep out drugs and crime. We are happy to have fostered that.” Despite several moves over the years, and now living in Birdsboro, the Matthews continue to own the Harrisburg properties.

Goode left the PUC in 1980 to become Philadelphia’s managing director. The new Commission chair, Linda C. Taliaferro, promoted Will to senior staff attorney, and, six years later, he became deputy chief counsel. During his time with the PUC, he commuted to the Georgetown University Law Center, earning a master’s degree in tax law. In 1987, Will left the PUC to become chief counsel for Pennsylvania’s Independent Regulatory Review Commission, by whom all regulations promulgated by Commonwealth agencies are reviewed. Robert Casey was governor at the time. According to Will, “The Governor believed our commission had no constitutional authority to challenge executive branch regulations.”

After Lindsay, the Matthews family expanded with two sons and another daughter. When asked what hobbies he enjoys, Will replied, “Between family and managing the rental properties, I do not have much free time, but I do enjoy tinkering with my 1968 Porsche.” Will may be a landlord, but he appreciates the tenant perspective. “I recognize eviction causes trauma to families, disrupting the education of their children.” He observes of his work with the Eviction Prevention Project, “We are able most of the time to find common ground.”

The critical thinking education Will sought and received has paid dividends in a career featuring administrative law, utility law, real estate law, saving a city block from deterioration and now working to prevent evictions. Without his involvement, the Project would not be as successful as it has been.

Charles Hamilton Houston, the Dean of Howard University School of Law who mentored Thurgood Marshall, famously said: “A lawyer is either a social engineer or a parasite on society.”

By providing access to justice to those facing the loss of shelter at a time when they could instead be enjoying retirement, Jesse Pleet and William Matthews are far from being “parasites” and, instead, are engineering a better society one case at a time, worthy of the PBA’s accolades.

Donald F. Smith, Jr. is the coordinator of MidPenn Legal Services Eviction Prevention Project.

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Pennsylvania Enacts New Protections for Living Donors By Robert J. Hobaugh, Jr., Esquire

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ennsylvania now promotes organ and tissue donation by adopting the Living Donor Protection Act (the “Act”), which became effective June 26, 2021. The Act prohibits providers of health or life insurance coverage from discriminating against living donors of human organs or tissue (each, a “Donor”). Further, it tracks the federal Family and Medical Leave Act in granting to employees leave from work for preparation and recovery necessary for surgery related to organ or tissue donation. The Act also directs the Pennsylvania Department of Health (the “Health Department”) to develop informational materials for donors and donation of organs and tissue. Finally, a violation of the Act by insurance providers is actionable as an unfair or deceptive act under the Unfair Insurance Practices Act. The public policy underlying the Act is “to encourage more people in the Commonwealth to give the incredible gift of organ donation” according to a House of Representatives Memorandum dated December 18, 2020 (the “Memo”). The Memo was published in connection with the introduction of HB 203 of 2021 drafted to prohibit discrimination by providers of health and life insurance. The actual prohibition runs against “Insurers” which are licensed by the Pennsylvania Department of Insurance (“Insurance Department”) under either (a) The Insurance Company Law of 1921, (b) the Health Maintenance Organization Act, (c) 40 Pa.C.S.A chapter 61 regarding prepaid hospital plan corporations or (d) 40 Pa.C.S.A. chapter 63 regarding nonprofit health service plans. Those Insurers may not discriminate against people by adversely limiting or conditioning coverage. First, Insurers may not “engage in any of the following actions against an individual based solely upon the individual’s status as a [Donor] without additional risk based on sound actuarial principles reasonably related to actual or anticipated loss experience: (i) Decline to provide an insurance policy to an individual[;] (ii) Limit coverage under an insurance policy of the individual[; or] (iii) Otherwise discriminate against the individual regarding premium rating, offering, issuance, cancellation, amount of coverage or any other condition of an insurance policy.” Act at §4(a)(1). An Insurer may avoid those prohibitions upon finding additional risk in insuring a Donor “based on sound actuarial principles reasonably related to actual or anticipated loss experience.” Insurers and their economic advocates have undertaken and will undertake loss experience studies related to Donors. According to the American Transplant Foundation, “[t] here has been no national systemic long-term data collection on the risks associated with living organ donation. However, there are studies currently gathering such information. Based on

limited information that is currently available, overall risks are considered to be low.” Second, Insurers may not “[p]reclude an insured from donating all or part of an organ or tissue as a condition for receiving or continuing to receive coverage under an insurance policy….” Act at §4(a)(2). The exception to this prohibition is as to life insurance. An Insurer “may decline to issue a life insurance policy to an applicant with a scheduled donation until the applicant is released without complication by the surgeon to the care of the applicant’s primary care physician.” Act at §4(a)(2). To what risks are Donors exposed? According to the American Transplant Foundation, “As with any other surgery, there are both [short-term and long-term] risks involved in living donation. Surgical complications can include pain, infection, blood loss, blood clots, allergic reactions to anesthesia, pneumonia, injury to surrounding tissues or other organs, and even death. As transplant surgeries are becoming more common and surgical techniques are advancing, risks involved with living donation continue to decrease... Risks can differ among [D]onors and the type of organ.” Read more about those risks at the website of the American Transplant Foundation: The Act purports to track the federal Family and Medical Leave Act (“FMLA”) in granting to employees leave from work for preparation and recovery necessary for surgery related to organ or tissue donation. A “covered employer” is to grant “eligible employees” leave from work. Who is an “eligible employee” under the FMLA? An eligible employee is (a) employed by a “covered employer,” (b) has worked for the covered employer at least 12 months, (c) has worked at least 1,250 hours during that period, and (d) works at a location where the covered employer has at least 50 employees within 75 miles. A “covered employer” is: (1) a private sector employer with 50 or more employees in 20 or more work weeks in the current or preceding year, (2) a local, state or federal government agency with any number of employees, or (3) a public or private elementary or secondary school with any number of employees. For whose surgery is the leave granted, related to organ or tissue donation? The leave is granted “when the eligible employee is unable to work because of a serious health condition or when the eligible employee must care for the eligible employee’s spouse, child or parent with a serious medical condition, for the preparation and recovery necessary for surgery related to organ or tissue donation by or for the eligible employee or the eligible Continued on next page

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Pennsylvania Enacts New Protections for Living Donors Continued from page 13

employee’s spouse, child or parent.” Act at §5(a). An employer may require such an employee to submit “written documentation regarding the preparation and recovery necessary for surgery described under subsection (a).” Act at §5(b). The Act may be read so as to enlarge the FMLA regarding tissue donation. The U.S. Department of Labor (“Labor Department”) had already opined as of August 28, 2018, that organ donation invokes the protections of the FMLA. In Opinion Letter FMLA2018-2-A, the Labor Department states “[o]rgan-donation surgery, however, commonly requires overnight hospitalization... and that alone suffices for the surgery and the post-surgery recovery to qualify as a serious health condition.” But section 5 of the Act also extends leave from work related to tissue donation. Note that an “organ” under section 2 of the Act is defined as “[a] human kidney, liver, heart, lung, pancreas, esophagus, stomach, small or large intestine or portion of the gastrointestinal tract or another part of the human body designated by the [Health Department] by regulation.” But “tissue” is defined under section 2 of the Act, separately, as “[a] portion of the human body other than an organ, including, but not limited to, a human eye, skin, bone, bone marrow, heart valve, spermatozoon, ova, artery, vein, tendon, ligament, pituitary gland or fluid.” If the Act purports to extend protections consistent with the FMLA and the Labor Department reasons that organ donation invokes the protections of the FMLA only with overnight hospitalization, then will the Act be interpreted to cover tissue donation only if its surgery requires overnight hospitalization? A violation of the prohibited practices under section 4 of the Act is declared to be an “unfair or deceptive act or practice under …the Unfair Insurance Practices Act.” Act at §6. The Unfair Insurance Practices Act is codified at 40 P.S. §§ 1171.1 et seq. (“UIPA”). Under the UIPA, consumers may file complaints against an Insurer with the office of the Insurance Commissioner of the Commonwealth of Pennsylvania (the “Commissioner”). The Commissioner is authorized to investigate an Insurer to determine whether an unfair or deceptive practice (a “Violation”) has occurred. Following an administrative hearing, the Commissioner may impose an administrative penalty and issue a cease-and-desist order (each, an “Order”). Upon violation of an Order, the Commissioner may file a complaint with the Commonwealth Court or the Court of Common Pleas in the county where the Violation occurred seeking to enjoin further Violations. The Commissioner may also file a complaint in a civil action seeking economic penalties. In any such civil action, the court is authorized to impose a penalty of $5,000 per Violation

14 | Berks Barrister

but not to exceed an aggregate penalty of $50,000 in any sixmonth period where “the person knew or reasonably should have known” it was a Violation, or $1,000, capped at $10,000 in a six-month period, where “person did not know nor reasonably should have known” it was a Violation. 40 P.S. §1171.11(2) and (3). The Health Department is required to develop and publish informational materials regarding Donors and the live donation of organs and tissue. Those materials must include, at a minimum, (1) the benefits of donation; (2) the impact of living donation on the Donor’s access to insurance and assistance; (3) the reduction in Federal adjusted gross income, for State personal income tax purposes, granted to Donors; and (4) the protection granted under the Act, including rights under the FMLA and the right to file a complaint with the Wage and Hour Division of the Labor Department if the Donor believes the Donor’s employer is not in compliance with the FMLA. Note that Pennsylvania already provides a tax credit to employers who provide paid leaves of absence to employees for organ or bone marrow donation. 72 P.S. §8803. These materials shall be distributed in print form and the Internet website of the Health Department. Rep. Tarah Toohil (R-116) was the primary sponsor of HB 203 which became the Act. In the Memo, Rep. Toohil states, “Organ donation saves lives and saves money, cutting health care costs by as much as two-thirds and saving Medicare millions of dollars every year. The [Act] will ensure that people who make the life-saving choice to become organ donors will not face economic roadblocks because of their decision.” HB 203 was signed in the House of Representatives and the Senate on April 21, 2021. Governor Thomas Wolf approved the Act on April 27, 2021, and it took effect 60 days later. The Act is one of many similar state enactments protecting organ donors. Sen. Kirsten E. Gillibrand (D-NY) introduced on February 23, 2021, a form of the Living Donor Protection Act as S.377 in the United States Senate. You can learn more about Donor protection among the states through the American Transplant Foundation at: Mr. Hobaugh is a solo practitioner in Kutztown and focuses on finance, entity formation and governance, land use and estate planning.

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During the Annual Meeting on October 28, the following attorneys were appointed to the Berks County Bar Association Board of Directors.

Karen H. Cook

Position on the board: Vice President Term: Four years About: Karen H. Cook is a partner with Masano Bradley in Wyomissing and has been with the law firm since 1986. Her practice involves the areas of real estate, environmental law, contracts, banking, civil litigation, estate planning and estate administration. She is the chair of the Law Journal Committee. Karen enjoys the beach and has spent many summer family vacations on the Outer Banks in Nags Head, North Carolina. She also enjoys going to Penn State football games and cheering on the Nittany Lions. In her spare time, Karen enjoys reading and exercising, including walking and swimming. She notes that she’s benefited from the educational programs and social events the Bar Association provides to its members and looks forward to serving on the Board to plan and assist with these programs and events.

Lauren M. Marks

Position on the board: Director Term: Three years About: Lauren M. Marks said she is thrilled to be joining the Bar Association Board of Directors. As a partner at Palange, Endres and Marks, Lauren has focused her career on family and dependency law, specifically high conflict custody litigation. Lauren is often appointed by the courts as a Guardian ad Litem for minor children where she strives to protect their best interests. Lauren and her husband, Chad, reside in Lower Heidelberg with their four children

and three dogs. When not in court or at the office, she’s often doubling as an Uber for her children, who are active in baseball, tennis, wrestling and dance classes. Otherwise, Lauren enjoys relaxing at Rehoboth Beach with her family throughout the year.

Mark E. Zimmer

Position on the board: Director Term: Three years About: Mark Zimmer is a partner with the Reading law firm of Mogel, Speidel, Bobb and Kershner where he has practiced for over twenty years. Mark concentrates in the areas of family law, child dependency/ juvenile court appeals and estate planning. Mark earned his Bachelor’s degree from Cabrini University, a Master’s Degree in psychology from Temple University, and his law degree from Rutgers University School of Law. Mark finds his degree and background in psychology to be a great benefit in the practice of family law which is often an emotional process and Mark believes that we are not only attorneys at law but also counselors at law. Mark resides in Sinking Spring with his wife and two sons; the oldest is a freshman at Alvernia University and the youngest is a freshman at Conrad Weiser High School. Mark coached both of his sons’ soccer teams going to several regional playoffs and tournaments. Mark is a member of both the Berks County Bar Association and the Pennsylvania Bar Association and a member of the Pennsylvania Bar Association Family Law Section. He is a former co-chair of the Berks County Bar Association Family Law Section, chair of the Law Day Committee and President of the Justice William Strong American Inn of Court. Mark looks forward to continued service to the Berks County Bar Association as a member of its board of directors.

Winter 2021 | 15

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FISH POND WEST STEAK AND LOBSTER DINNER The Annual Steak and Lobster Dinner at Fish Pond West was back in full swing this year. The event was a great way for our Berks County Bar Association family to reconnect with our CPA partners from the PICPA Reading Region. Red-checkered tablecloths covered the miles of banquet tables and attendees enjoyed a family-style meal with traditional macaroni and cheese, stewed tomatoes, succotash, steak, and lobster. Make sure to mark your calendars for next year’s event, which will be held at the end of the summer.

16 | Berks Barrister

Pets at the Park

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Members enjoyed a morning of exercise with their pets and fall treats at the dog park in Jim Dietrich Park in Muhlenberg Township on October 23. The Wellness Committee organized this event, which was moved to the fall after being rained out in August.

Photos credit Susan L. Angstadt

Ben stands guard while the guests mingle. Chris Garrell and Callie.

Jeff and Deb Franklin with Benji.

Fred and Janice Hatt with Ben.

Elizabeth Diener and Joan London with Odie.

Lisa and Woody Siciliano with Tucker.

Deborah Detwiler and wife Val West with Connor.

Bar Association President Justin D. Bodor holds Henry and is joined by his wife, Jessica, son, Gavin, and daughter, Charlotte.

Andrea Mertz and Ernie Chen.

Daniel, Jennifer, and Sam Nevins with Sophie. Winter 2021 | 17

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Book Review American Contagions, Epidemics and the Law from Smallpox to COVID-19 By JOHN FABIAN WITT Reviewed by Judge Jeffrey K. Sprecher

“The health of the people is the supreme law.” — Cicero


he author presents a title so long one might fear buying the book, especially considering that its subject matter is so complex because contagions and epidemics have ravished the world since the beginning of time. But his book is far from voluminous, and I’m happy to write that it’s an easy read despite being jam-packed with a chronology of state and federal cases and diverse executive action taken in the 250-year history of American jurisprudence.1 It covers citizens’ rights in America versus states’ police power in just five chapters.

Police Power Defined In 1904, Ernst Freund in his book The Police Power, Public Policy and Constitutional Rights defined police power as the power of the state to secure and promote public welfare by restraint and compulsion. Black’s Law Dictionary defines it as the inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, health, morality, and justice. But, writes John Fabian Witt, a professor of law and history at Yale in a case that interprets the Tenth Amendment to the U.S. Constitution, the U.S. Supreme Court declared that one sovereign, the federal government, lacks police powers.2

18 | Berks Barrister

Prejudice and Discrimination

Prejudice and discrimination can be found in the application of laws to the different classes of people throughout history, even in America. If you look up either term in his index Mr. Witt directs you to see “minorities, racial inequities.” When the reader does, there are eight more suggestions to separate parts of the book as well as to more places throughout the index under different racial and ethnic terms. It is a big part of the book, only because it has played such a large role in the type of laws passed and the political power exercised in America’s fight against epidemics. There is the infamous Buck v. Bell case decided in 1927 where Justice Oliver Wendell Holmes upheld the compulsory sterilization of Carrie Buck, a young Virginian woman who had been labeled “feeble minded” after becoming pregnant out of wedlock. “The principle that sustains compulsory sterilization is broad enough to cover cutting fallopian tubes,” Holmes wrote, “Three generations of imbeciles are enough.” 3 Witt gives another example known as Typhoid Mary. Discriminatory state power was sometimes exercised against specific individuals as well as against particular communities. Consider Mary Mallon, dubbed “Typhoid Mary,” whose sad life story offers an especially vivid illustration. Mallon was an unmarried, middle-aged, Irish-born domestic cook in Manhattan in 1907 when outbreaks of typhoid fever occurred among several of Manhattan’s wealthiest households. An enterprising public health official traced the outbreaks back to

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Mallon, who had served in each of the affected households. Mallon had experienced no symptoms. She was not sick in any conventional sense, nor had she done anything wrong. She had certainly committed no crime. Yet, the board of health and the New York City police seized her. Testing soon revealed that she was a healthy carrier of the typhoid bacillus, and she was detained in quarantine on North Brother Island in the East River. A New York judge upheld her detention as lawful under the powers of the Metropolitan Board of Health. After almost three years of isolation, she was released on a promise never to work as a cook again. But she did not believe the science. Taking an assumed name, she went to work as a cook for a maternity ward. She was discovered in 1915 when typhoid fever broke out in the ward and investigators traced the disease back to her. She would spend the rest of her life, 23 years, once again isolated against her will in the East River, never having been convicted of or even charged with a crime. Several hundred other health carriers of the bacillus came to light while Mallon moldered alone on North Brother Island but none were detained for a substantial period of time.4 Other endemic American diseases mentioned in the book include AIDS, cholera, COVID-19, Ebola, the Spanish Flu epidemic, measles, polio, SARS, smallpox, syphilis, typhoid, and yellow fever. Did you know that: 1) A yellow fever epidemic broke out in 1645 in the Massachusetts Bay Colony. 2) After discovery of America by Columbus, 90% of the 70 million native Americans in the U.S. died by exposure to Europeans and conquistadores and the contraction of measles and/or smallpox. 3) Far fewer people died in the war for American independence than in the battle against smallpox. 4) In the early years of the new nation, yellow fever brought by refugees from the Haitian revolution exposed and killed 10% of the citizens of Philadelphia and New York City. The purge continued in the northeastern U.S. for decades thereafter. 5) Cholera gruesomely killed thousands in the U.S. in 1832 then returned in 1849 and again in 1866. Although no longer found in America, cholera still prevails in Third World countries. In one of the deadliest cholera outbreaks of modern time, the epidemic following the 2010 earthquake in Haiti infected at least 800,000 Haitians of whom more than 10,000 died. 6) Smallpox during the Civil War and thereafter devastated communities of former enslaved people. 7) Around the same time, New Orleans lost tens of thousands of citizens to death by yellow fever. Continued on next page


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Book Review Continued from page 19 Tragically, illness, disease, and death were part of daily life especially in young America. Except for the continuing danger from more recent contagions (such as SARS, AIDS, Ebola, and COVID), the majority of these diseases are controlled in the U.S. to the point that they are not even given a second thought. However, polio was most deadly in the U.S. in 1950 & 1952 which of course is well within the early lifetime of a large portion of the population alive today.5 Mr. Witt also includes past examples of the recurring frustration of citizens’ refusal to believe in vaccination.

With COVID-19 Vaccination, Will We Ever Reach Herd Immunity?

For vaccines to work, we of course need herd immunity. In a story that appeared in the press on Tuesday, May 23, 2021, William J. Kale of the Associated Press writes how refusal to vaccinate plagued the U.S. for years after Boston suffered devastating effects from the smallpox epidemic that hit the city in 1721 and how vaccination of that disease parallels the coronavirus pandemic to hit us two-hundred years later: Smallpox was eradicated but not before it sickened and killed millions worldwide. . . . The last outbreak of smallpox in the United States occurred in 1949. It was declared eradicated worldwide in 1980. Yet just as with COVID-19 vaccines in 2021, many people took a skeptical view of smallpox inoculations in the 18th century. Edward Jenner inoculated the first child in the world in 1796. But sixty-eight years later smallpox once again raged through Boston.6 Why? Historians list three reasons (not all logical) that U.S. citizens for decades refused the smallpox vaccination. 1) Clergy warned their congregations against contaminating the purity of the human body with animal matter (cowpox) and condemned it as Unchristian. 2) Many of Jenner’s peers, who had forged careers on useless but lucrative “cures” for smallpox, were quick to denounce vaccines as being dangerous. 3) At least one self-described physician claimed that the vaccine would leave children with distinct bovine features.

David Montadel’s Take on COVID Herd Immunity

David Montadel, a historian at the London School of Economics and Political Science, wrote on April 29, 2021 in the New York Times, “ever since the time of Jenner, whenever new vaccines have been approved, antivaccination campaigns have been part of the response.” For example, Jonas Salk invented his polio vaccine in 1955 and although polio epidemics were

20 | Berks Barrister

nearly gone less than 10 years later, the disease has never been completely eradicated; “it roared back in Pakistan in 2019, after rumors spread that children had fallen ill after receiving the vaccine and many parents refused to let their children receive it.” Montadel provides another example. Measles, mumps, and rubella vaccines were approved in the 1960s and were combined into the MMR vaccine in 1971. But use of the vaccine became the subject of one of the most publicized immunological controversies in history. An article published by Andrew Wakefield in the late 1990s in The Lancet linked the vaccine to neurological conditions, including autism.7 The problems with the paper were highlighted almost immediately, but despite the public notice, this false story cast a long shadow: “MMR vaccination rates plunged, and measles outbreaks soared in the years afterward.” However, Mr. Montadel’s opinion on COVID is, “Although attempts to delegitimize vaccines have posed a serious threat to human health, antivaccination movements, at least in the long run, have never succeeded in stopping rollouts: enough people have accepted vaccines that they have always been effective in the immunization of societies. And that’s likely to be true of this pandemic, too,” concludes Mr. Montadel. Hopefully, he’s right. References 1 The book is only 174 pages in a 5" by 8" format including an Introduction, Afterward, Notes, and Index. 2 Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 (1918);opinion written by Justice Louis Brandeis; 1918 was the beginning of the flu pandemic that killed millions throughout the world including 675,000 Americans. 3 Buck v. Bell, 274 U.S. 200, 207 (1927). 4 Witt, p. 41-42. 5 On June 30, 2021, the Reading Eagle, in its History section, featured a story that was frontpage news in the Reading Times over one-hundred years before on August 26, 1916 entitled, “No Sunday School of Any Kind Will be Allowed Here.” Thus, said the Pennsylvania health Commissioner who ordered that no such activity would take place because of an outbreak of infantile paralysis, also known as polio. 6 Witt, on page 19, writes that in 1827 Boston required that “children attending school were required to be vaccinated.” 7 The Lancet is an independent, international weekly general medical journal founded in 1823. It has extensive global reach. According to the internet, it has more than 84 million annual visits.

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Spotlight on New Members Darian H. Dellinger, Associate Attorney, Brennan and Associates, Wyomissing Practice areas: Family law and general liability defense work. Education: Earned a bachelor’s degree in Political Science and a minor in Psychology from Wilkes University in Scranton and a law degree from Widener University Commonwealth School of Law. Previous jobs: Intern for the Pennsylvania Legislative Reference Bureau in Harrisburg; Law Clerk for the Dauphin County Solicitor’s Office, Harrisburg; and Intern for the Honorable Judge John McNally of the Dauphin County Court of Common Pleas, Harrisburg. When Darian is not in the office you’ll find her: Hiking or travelling with my husband, Ryan, and two dogs, Chloe and Luna. Favorite television show: “The Office,” possibly the funniest show of all time. Performers/bands on her music streaming service playlist: Twenty One Pilots, For King and Country, and The Protest. Family: Husband, Ryan, and dogs Chloe and Luna. Both dogs are shih-tzu mixes. Luna is a rescue dog adopted in June and helped me survive bar exam prep. One Last Thing: I love to volunteer. I have volunteered in Costa Rica to help renovate a recreational center for children in a coffee village. I currently volunteer with Bethesda Mission, a homeless shelter in Dauphin County. Zachary D. Griffith, Associate Attorney, Barley Snyder, Reading Practice areas: Civil law, including business, real estate, and trusts and estates. Education: Earned a bachelor’s degree in Political Science and minors in Classical Studies and Legal Studies at Albright College and a law degree at Widener University Delaware Law School, serving as an Articles Editor for the Widener Law Review during my third year. Previous jobs: Legal Intern at EnerSys in Bern Township, and the Virginia office of Information Systems Laboratories, a specialized technology company based in California.

When Zachary is not in the office you’ll find him: Volunteering as a tour guide for the Mid-Atlantic Air Museum at the Reading Regional Airport. I am an avid aviation enthusiast. Favorite movie: “A Few Good Men,” a classic legal thriller with fantastic performances by the entire cast. Family: Engaged to my fiancée, Julia, with two rescue dogs, Doug, a Beagle/Husky mix, and Marshall, an American Staffordshire/ Australian Shepherd mix. One Last Thing: I have lived in Exeter Township for nearly my entire life. Additionally, I was a competitive swimmer from 2004 to 2017, becoming co-captain of the men’s team at Albright College my junior year. Taylor V. Stark, Assistant County Solicitor, Berks County Children and Youth Services Education: Earned a bachelor’s degree in Political Science and a minor in Psychology from The College of New Jersey and a law degree from Penn State Law, University Park. Previous job: Judicial Law Clerk to the Honorable Honora O’Brien Kilgallen, J.S.C. in the New Jersey Superior Courts where she assisted with a Children in Court docket in the Family Division. When Taylor is not in the office you’ll find her: Working out at CrossFit Crossing or Alliance Fitness Center or at home with my husband and pets, likely watching college football. Favorite book: The Outsiders by S.E. Hinton. It was my mom’s favorite book, and once my mom had me read it at age 10, it became my favorite, too. Favorite Berks County Restaurant: Go Fish! in Sinking Spring. It’s a great atmosphere, the staff is the nicest, and I haven’t had anything there yet that hasn’t been excellent. Family: Husband, Bradley Davis, an associate at Kozloff Stoudt; a dog, Roo; and a cat, Lucy. One Last Thing: I grew up in Colts Neck, New Jersey, which is known for horse farms, apple orchards, and the town where singer Bruce Springsteen resides. In high school, I played soccer, field hockey, and lacrosse and received the Shore Conference Sportsmanship Award my senior year.

Winter 2021 | 21

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The Pardon Project of Berks County seeks to assist individuals with a criminal record, who have served their sentence (including probation and parole) and are seeking a pardon of their records. The Pardon Project of Berks County connects these individuals with community volunteer Pardon Coaches to aid them in their journey.

District Attorney John Adams, Berks County Bar Association President Justin Bodor, Mark Yoder and the Honorable Tonya Butler are part of the core group that is working on the Pardon Project of Berks County.

District Attorney John Adams explains the role the District Attorney’s office will have in the Pardon Project.

Senator Judy Schwank announced the new Pardon Project of Berks County at Berks County Pretrial Services on November 1, 2021. The program was developed with Secretary of the Pennsylvania Board of Pardons Brandon Flood, Berks County District Attorney John Adams and state and local members.

22 | Berks Barrister

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Secretary of the Pennsylvania Board of Pardons Brandon Flood and Pennsylvania State Senator Judy Schwank were happy to announce the formation of the Berks County Pardon Project.

State Senator Judy Schwank and Berks County Bar Association President Justin Bodor are proud of the collaboration between the Berks Bar and the State to bring a new justice project to Berks County. The BCBA looks forward to developing this unique program for our local residents.

Brandon Flood announces the Pardon Project at a press conference held with John Adams, Berks County District Attorney, and several other state and local representatives.

Nicole Schnovel, Co-Executive Director of Berks County Pretrial Services, explains how BCPS will administer the program with the assistance of local volunteers in the law community.

Nicole Schnovel, BCPS Co-Executive Director; Senator Judy Schwank; Brandon Flood, Secretary of the Pennsylvania Board of Pardons; and John Adams, Berks County District Attorney, collaborated to develop the Pardon Project based on the success of similar programs across the Commonwealth. Winter 2021 | 23

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La Maison

Variations on a Theme By Susan N. Denaro, Esquire


nyone who knows me well knows two truths about me: 1. I hate repetition; and 2. when given the choice, I will always choose to dine on French cuisine over any other. Ironically, when French food is involved, I don’t mind being served similar dishes again and again. In fact, if it’s really good food, I will welcome the comfort of that repetition. Another truth about me is that I eschew surprises. So imagine my delight when a friend blindly took us to La Maison for dinner back in August with the promise that we’d have a meal to surpass all others. I was indeed surprised to find he and this gem of a restaurant in Chester County made good on that promise. La Maison is owned by Janet and Martin Gagné. To be more specific, they ARE La Maison. Located at 1470 Old Ridge Road in Coventryville, this hidden gem of a restaurant encompasses the majority of the main level of their white-washed, 300-year-old house nestled right up against the road. With a French flag proudly displayed outside the house, we instantly felt transported to a memorable drive decades ago along the back roads of the Loire Valley. Janet greeted us at our car and escorted us through the main entrance, which unexpectedly landed us in the bustling kitchen. The aromas emanating from the kitchen were a mouth-watering preview of the delights Martin was diligently creating. La Maison offers a taste of France inside a 300-year-old home that doubles as a Michelin-rated restaurant outside of Pottstown.

THE DISH BEFORE YOU DINE • La Maison is BYOB and because the menu is available in advance, it is easy to pair wines for the meal. • Plan to book several weeks in advance because seating is limited and Janet and Martin only open their home on Friday and Saturday nights. • The fixed menu is $160 per person and they accept cash only. • Before your unique dining experience, read about Martin and Janet’s backgrounds on their website at

La Maison 1475 Old Ridge Road Pottstown, PA 19465 24 | Berks Barrister

The cozy restaurant seats approximately 20 people between the two rooms just off the kitchen. These two rooms are set up as dining rooms and feature a set menu. All guests must be seated by about 7:00 p.m. before dinner service begins with a volley of eight courses, all masterfully orchestrated. The menu arrives via email on a Friday morning, allowing one to select wines to complement the dishes. The restaurant is BYOB. Tables are set with an eclectic and colorful array of plates piled one on top of the other. Each course uses the plate on the top until only the dinner plate remains. Dinner is served on Fridays and Saturdays only, which makes perfect sense because every morsel is crafted with unsurpassed precision that one imagines they need the other five days to recover.

Since subscribing to the restaurant’s website, I’ve been receiving a weekly menu and have noted that there is a repetitive method to the succession of servings on the Gagné’s menus. To be clear, it’s a rare form of repetition I actually welcome. Our summer meal there was so exquisite that I told my spouse I wanted to dine there quarterly as anything less would be too long between visits and anything more would make it less special. For that reason, we found ourselves back in le petit auberge at the end of October.

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Chef Martin Gagné adds a subtle twist on these irresistible Les Gougères, a buttery puff pastry made savory and somewhat dense by the addition of grated cheese. A sweet soufflé is a dessert staple. Guests always get a mouth-water- This chocolate variety was served ing preview of what Chef Martin with thick mocha sauce. Gagné is preparing.

Both occasions, our meal started with a petite boule de saumon fumé au céleri-rave, which translates to a small ball of smoked salmon encasing a center of celeriac. Some patrons might treat this as an amuse bouche to be taken in one bite, but we enjoyed it as a two-bite serving as much to savor its magical textures and flavors as to have an excuse to scoop up every drop of the vibrant parsley sauce that accompanied it. Although we had drooled over the escargot and other classic French bites on the e-mailed menus we read between visits, we were delighted to be served a petite boule de saumon fumé au céleri-rave again in October. Soup appears to always be the second course. In August we devoured a smooth pale-yellow corn soup that featured a delicate clam ravioli; it was a stunner. We didn’t expect Martin could have bested that but, during our second visit, we supped on a silky pumpkin soup with a perfectly shaped chicken quenelle that was not only appropriate for the fall weather but was so good we wanted to lick our bowls clean.

Just before the salad course arrived, Janet delivered a basket of irresistible Les Gougères. For the uninitiated, they are a buttery puff pastry made savory and somewhat dense by the addition of grated cheese. Martin uses Comté rather than the traditional Gruyére. Some chefs include a little Parmesan for added depth of flavor, but Martin’s are the best I’ve ever had. We spied them in the oven upon arrival and sat in anticipation as we knew from their aroma they would not disappoint. Martin wisely serves two per person because he knows his fans cannot stop at one. They were the perfect accompaniment to the seasonal salad, featuring roasted beets in a light Dijon-based vinaigrette. I would return again and again for those cheese puffs. I tried to recreate them at home a few weeks later. While mine were good, they were missing that je ne sais quoi Martin’s years of experience bring to his version. The surprise of our second dinner was the fish course, which was a small rectangle shaped oven-roasted halibut served with a puff pastry round topped with a delicate butter sauce dotted with fresh herbs. Brussel sprout leaves completed the plating. Yet another stunner. On our first visit, the fish course was a traditional pike quenelle, which was also served with a puff pastry round but in a sumptuous saffron sauce. The dish was reminiscent of one we enjoyed in LeMans years ago. However, Martin’s version was more refined. Quenelles are dumplings that are shaped with two spoons and take quite a bit of practice to master. Martin clearly has the deft touch for it.

The Pike Quenelles with lobster in saffron sauce is a dish reminiscent of a visit to LeMans.

The meat course both nights was a tender cut of beef strip loin in a rich red wine sauce. Both were served with a salty potato cake and some seasonal vegetables. The difference was in the sauces. The one in August was dotted with green peppercorns, while the October offering was studded with bits of foie gras. Being served almost an identical dish on our second visit was again a welcome delight and just a luck of the draw as Martin does mix up his menus. An offering of lamb was just as likely to be on the menu. All courses except the salad are served family style. I suspect that takes pressure off the small kitchen to produce individual plates and helps the three-person staff serve the fare while it is still at a perfect temperature. Dessert at La Maison is always a sweet soufflé, but Martin varies the flavor of not just the soufflé but also the sauce that accompanies it. In August, we devoured a classic chocolate one with a thick mocha sauce. On our most recent visit, it was a delicate lemon soufflé with a vibrant strawberry sauce. I couldn’t say which was my favorite as they were both light and airy like a proper soufflé is meant to be. I’m keeping my fingers crossed that the pistachio soufflé will be on the menu when our next visit rolls around.

A multi-tiered tray of memorable sweets ended both evenings. In addition to delicate shortbread, it included hazelnut truffles, almond nougats, and fruit jellies, all made by Martin. After the soufflé, we were stuffed and the thought of indulging in another morsel didn’t seem possible. Yet there were no leftover sweets.

Martin has travelled the globe perfecting his craft. It was such a welcome surprise to find Michelin Star caliber food so close to home. Prepare to be dazzled and expect to find me at one of their quaint tables as I’ll be going there again and again and again. Ms. Denaro is with the Wyomissing law firm of Georgeadis||Setley.

WInter 2021 | 25

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Annual Fall Meeting

President Justin D. Bodor presents outgoing Board member the Hon. Tonya A. Butler with a token of appreciation for her service.

Attorney Daniel Cortes caught up with Judge Tonya Butler during Happy Hour at the Annual Meeting.

Susan and Kelsey Frankowski share a family moment at the Annual Meeting. 26 | Berks Barrister

Robert Kreitz congratulates Lou Shucker on 50 years of service to the Bar.

Jim Polyak, Kevin Moore, Stacey Lindsay and Paul Troisi toast to the Bar Association.

Jill Gehman-Koestel and Sara Haines-Clipp share a drink and conversation.

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Deb Perini of Members 1st Federal Credit Union, a BCBA partner, presented one of several gift certificates to lucky winner Jeffrey Bukowski. The BCBA is fortunate to partner with and support our local businesses.

Jesse Pleet accepts the PBA service award for pro bono service. (L-R: David Trevaskis, Jesse Pleet, Hon. Tonya A. Butler, Hon. Thomas G. Parisi)

Claudia Ferko, Lucy Brito, and Rose Johnson greeted guests and worked behind the scenes to make sure the event at the Berkshire Country Club went on without a hitch.

Berks County Community Foundation Director Franki Aitken presented the Seidel Family Scholarship to Jacob Kramer. Jacob is now in his third year of law school and is newly married to his wife Lea Bartman. (L-R: Lea Bartman, Jacob Kramer, Franki Aitken) Continued on next page

The Hon. Scott Lash, meets with the members of the Young Lawyers Group. (L-R: Matthew Lasewicz, Darian Dellinger, Julie Marburger, Judge Scott Lash, Sara Haines-Clipp) Winter 2021 | 27

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Annual Fall Meeting Continued from page 27

Joe Speece and Amy and Igor Litvinov catch up at the Annual Meeting.

Jeff Franklin and John Forry share a joke at the event.

Fred Hatt, Jill Scheidt, and Judge Parisi share some quality conversation during Happy Hour at the Annual Meeting.

The Bar Association was honored to have guest speaker David Trevaskis, Pennsylvania Bar Association's Pro Bono Coordinator present the PBA's 2021 Pro Bono Award for service.

BCBA President Justin D. Bodor receives recognition for his 2021 presidency. 28 | Berks Barrister

Past-President G. Thompson Bell III congratulates incoming President James M. Smith at the gavel passing ceremony.

Jennifer and James Smith pause their conversation with Law Journal Editor Pamela VanFossen to snap a quick picture.

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In Memoriam Joseph Michael Harenza Jr.


oseph Michael Harenza Jr., 77, passed away on September 29, 2021. Mr. Harenza graduated from Greenbriar Military School and then attended Western Michigan University, where he was a quarterback for the football team. After college, Mr. Harenza

played quarterback for several semiprofessional football teams, including the Harrisburg Capitols and the Hamilton Tiger-Cats of the Canadian Football League. After his football career, Mr. Harenza earned his Juris Doctor from Penn State Dickinson Law and a LLM in taxation from Temple University James E. Beasley School of Law. In 1971, Mr. Harenza joined Stevens & Lee as an associate. He advanced to a practice group leader and eventually served as the chief executive of Stevens & Lee for over 20 years. During his tenure at Stevens & Lee, Mr. Harenza was instrumental in growing Stevens & Lee from a 20-attorney firm with one office in Reading, PA to a 180-attorney/300-employee multidisciplinary firm with 17 different offices, which is now known as Stevens & Lee/Griffin. Mr. Harenza worked for Stevens & Lee/Griffin for over 50 years and his passing is seen as an “end of an era” for Stevens & Lee/Griffin. Mr. Harenza was known for his tough as nails demeanor and boundless energy. His reputation was second to none in the field of innovative and complex corporate and financing transactions and extended well beyond Reading. He was a charismatic leader, with a larger than life presence, who was a master motivator and a tremendous mentor to many partners and associates. Mr. Harenza was a former adjunct professor of Securities Regulation at Penn State Dickinson Law School, a former trustee and board member of The Pennsylvania State University, and a former member of the Board of Directors of the Berks County Community Foundation, Inc. In addition to his work as an attorney and investment banker, he was dedicated to helping his immediate family and his Stevens & Lee/Griffin family. Mr. Harenza is survived by his wife, Dana, his son Jeffrey, daughter, Beth, stepson, Raymond, and granddaughter, Cora.

30 | Berks Barrister

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s John Marshall Harlan the greatest Supreme Court Justice since his namesake, the fourth Chief Justice? Why should we care? Because we should give a damn about the Supreme Court, its history, its role under the Constitution, and the traits of those justices who make the greatest impact. In his recently published book, The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero, Peter S. Canellos makes a compelling case that the answer to my opening question is a resounding YES! Harlan, who served from 1877 to 1911, is the one who “stood so consistently against his brethren, only to be vindicated in later years.” As early as college, I was introduced to Harlan’s solitary dissent in Plessy v. Ferguson upholding segregation, and his famous line: “There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Fifty-eight years later, he was vindicated in Brown v. Board of Education. But I have come to appreciate a greater impact. Before Plessy there was the 1883 decision involving consolidated cases, collectively known as the Civil Rights Cases. Five African-American plaintiffs sued under the Civil Rights Act of 1875 after being denied access to various public accommodations. State laws did not require the discrimination, but rather the defendant railroads, inns and theaters decided to do so on their own. By an 8-1 decision the Court held the Act was unconstitutional because, under the majority’s narrow interpretation, the Fourteenth Amendment only banned statesponsored discrimination, not private. The 1 was Harlan. He wrote that the majority was treating the Thirteenth and Fourteenth Amendments as “splendid baubles.” He proclaimed: “Citizenship in this country necessarily imports equality of civil rights among citizens of every race in the same state.” Under the Fourteenth, “railroad corporations, keepers of inns and managers of places of public amusement are agents of the state, being licensed and subject to public regulation.”

By Donald F. Smith, Jr., Esquire

Furthermore, he posited the Act was authorized by “the power given to Congress to regulate commerce.” Such was the basis used by the Court, eighty-one years later, upholding the Civil Rights Act of 1964. A justice ahead of his time. Harlan’s analysis also influenced future decisions on interstate commerce and labor law. In Lochner v. New York (1905) the Court struck down a New York law prohibiting bakers from working more than sixty hours a week or ten hours a day. The majority found it violated the freedom of contract protected by the Fourteenth Amendment. Justices Harlan and Holmes both wrote dissenting opinions. While the Holmes opinion is more famous, Harlan’s is considered more legally convincing.

Harlan advocated judicial restraint. “It is plain that this statute was enacted in order to protect the well-being of those who work in bakery and confectionary establishments…Whether or not this be wise legislation it is not the province of the Court to inquire.” During the New Deal era, Canellos notes that, while “his dissenting opinions helped build the case against Lochner and other precedents that deprived people of economic protections, his views were only occasionally credited.” Such was the case with the Court interpreting the scope of the interstate commerce clause. In 1895, the Court refused to apply the Sherman Antitrust Act to the manufacturing of refining sugar on the grounds that interstate commerce did not include manufacturing. The only dissent was by Harlan. Under the Constitution, he wrote, Congress has the power to regulate “interstate trade

in any of its stages.” In 1937, the Court agreed without giving Justice Harlan credit for being the first to espouse the interpretation. He had a broad view of the impact of the Fourteenth Amendment’s Due Process Clause, too. In 1884, the Court held the Fifth Amendment did not apply to the states. Justice Harlan dissented; in his mind, the Bill of Rights were incorporated lock, stock, and barrel into the Due Process Clause. He asked: “Are not these principles fundamental in every free government established to maintain liberty and justice?” Writing in 1947, Justice Frankfurter noted, since the Fourteenth’s ratification in 1868, “the scope of that Amendment was passed upon by forty-three judges. Of these judges, only one, who may be respectfully called an eccentric exception, ever indicated the belief that the Fourteenth Amendment was a shortened summary of the Bill of Rights and that the Due Process Clause “incorporated those eight Amendments as restrictions upon the powers of the States.” Well, it took over 125 years and twentyfive Court decisions, but incorporation is exactly what has happened with all but three minor exceptions of the Bill of Rights. Canellos observes, “The one justice proved to be more prescient than the other fortytwo.” What traits inspired the former slave owner, colonel in the Union Army, Kentucky politician, private practicing attorney, church leader and father of three to become the greatest? Canellos answers: “Unlike many later-generation justices whose careers vaulted them from law school, to clerkship, to faculty position, to judgeship with no intervening stops in the neighborhood of real life, Harlan’s legal views were shaped by what he saw with his own eyes and felt in his own heart.” Damn straight. The “eccentric exception” should be the rule.

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

Winter 2021 | 31

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