New Matter THE AWARD WINNING PUBLICATION OF THE CHESTER COUNTY BAR ASSOCIATION â&#x20AC;¢ CHESTER COUNTY, PA www.chescobar.org
4th Quarter 2016
WHY I LOVE THIS ASSOCIATION Page 4
SUPREME COURT AND DOUBLE JEOPARDY
AGENT K WAS WRONG Page 22
IN EVERY ISSUE
A Bit of History .........................................6
CCBA Officers William T. Wilson, President Christine E. Zaccarelli, President-Elect Mary-Ellen Allen, Vice President Patrick M. McKenna, Treasurer Samuel W. Cortes, Secretary Colleen Frens, YLD Chair
W. Edward Greenwood, Jr., Esquire...8
Flying Solo ..............................................19
Supreme Court and Double Jeopardy: Bravo-Fernandez v. United States...10
Save Our Environment .......................20
New Matter Committee Charles DeTulleo, Editor Rami Bishay Mark Blank, Jr. Keith Boggess J. Stoddard Hayes Mary LaSota Andrew Lehr Deborah Lewis Shannon McDonald John McKenna Kim Denise Morton Mary Wade Myers Kevin Ryan Karyn Seace Alan Vaskas Bill Wilson
Marketing Content: Who is Winning the Battle?..............................15
Goldberg, Goldberg & Janoski Litigation Referrals Welcomed
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Fall Bench Bar Conference Memories ................................................16 10 Tips From A Litigation Trial Attorney: How To Prepare For A Business Dispute................................28
The Blank Page ......................................24 Dictum for Dummies ...........................26 From the Archives ................................27 Featured Member Profile: Steven Soles, Esquire...........................34 In the Community ................................35
Suicide Prevention and Chester County Lawyers ....................30 When Disaster Strikes, One Call Can Make All the Difference .....33
Emily Boulanger Communications & Event Manager
The opinions expressed in this material are for general information only and are not intended to provide specific legal or other advice or recommendations for any individuals. The placement of paid advertisements does not imply endorsement by the Chester County Bar Association.
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Ramblings From A Legal Law Clerk..................................22
CCBA Staff Wendy Leeper Executive Director
The Chester County Bar Association’s quarterly publication, New Matter, has been provided to Bar Association members for four decades. A valuable aspect of CCBA’s membership, New Matter aims to provide our members with information pertaining to current issues facing the practice of law, historic legal issues, continuing legal education opportunities, Chester County Bar Association activities, programs, meetings and functions, practice tips and procedures for attorneys, and items of personal interest to our membership.
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4TH QUARTER 2016
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New Matter | 3
Why I Love This Association
e finished our Fall Bench Bar Conference this morning. If you didn’t come, talk to someone who did and feel deprived, for any number of reasons. Regardless of whether you would consider this year’s conference to be better than most (it really was), it reminded me once more of how fortunate I have been to practice here in Chester County. Since it happens that this is the last of these harangues that being President allows and requires me to write, it also seems like an appropriate time for me to write about why I love this Association.
William T. Wilson, Esquire President
Associations like ours are important to our continued professionalism. More than anything else, they foster the collegiality and civility that distinguish us from the tradesman. In social settings like our Bench Bar Conference, we share with each other some of the experiences and insights that would be jealously guarded by non-disclosure agreements if we were mere commercial enterprises. We actually try to help our colleagues (competitors) to be better at what they do. Many of our most experienced members are only too happy to take a little time with a younger colleague or peer and try to help them solve a problem. My guess is the manager over at Home Depot would not be too helpful if his counterpart at Lowe’s had some questions about how to manage inventory in real time. The one at Lowe’s would never think to ask. The Bar is now just too big for everyone to gather in the same hotel after court each session, so without the various bar associations, a lot of that collegiality would just disappear. Here in Chester County, our association does a remarkable job, even compared to the best of our counterparts. In part, this is attributable to a great Executive Director and staff that have made the last year an unmitigated pleasure for me. Also, a core of two or three hundred members who really participate help us offer vibrant sections and committees that make us better lawyers, as well as giving us practical networking opportunities. A larger group of members who do not participate as much do not, in my own view, quite know what they are missing. I would encourage every one of you to get involved in the association as much as you can. We need to insure that our younger lawyers – the ones who are often under the most financial pressure and who have the least time to spare – to get involved. Statistics show that if someone starts participating in the association early, they will continue to do so. Conversely, after a person has practiced long enough to get established without the association, he or she may perceive that they have managed quite well without the association and be less likely to see its value. If younger lawyers do not support the association with their participation, the associations will not maintain their viability and, unless some other type of organization arises to replace them, we will be sorrier for it. I am among the most fortunate of persons. One of the real highlights of my charmed life has been the privilege and pleasure of being your President this year. I have been able to ride the coattails of a long list of past Presidents whom I admire. I also feel sure that the officers who will be serving in the next few years will only make the association better. I hope my gratitude has shown in this page.
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New Matter | 5
A BIT OF HISTORY
In 1958 I started six months “clerkship” (required
in those days) with my Uncle, William E. Parke, Esquire. I learned a lot in that six months but not much about what a lawyer is expected to do in a courtroom. I heard rumors about the court’s “system” of appointing new, right-out-of-law-school lawyers to represent indigent criminal defendants. It terrified me to think about it. In those days there were no public defenders, but there were plenty of defendants who couldn’t afford to pay legal fees. A day or two before a trial was scheduled to start a judge would call one of these fledgling lawyers to inform him (there were no fledgling “hers” then) that he had a new client and the client’s case needed to be prepared for the imminent trial. The lawyer would be expected to work for nothing (probably about what his services were worth in those cases). Sure enough, not long after I was admitted to the bar I got a phone call from President Judge Thomas Gawthrop. “I’ve signed an order appointing you to represent a woman.” (Let’s call her Mrs. Hernandez.) “Mrs. Hernandez is at the county prison. You will want to go see her to prepare her defense because her trial starts Monday at 10:00 AM.” Thanks a lot, your Honor. This was Friday afternoon. Thanks for so much notice.
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Detectives’ offices a few minutes later, I was informed that Mrs. Hernandez had just given a complete written “statement.” I was given a carbon copy. I could talk to her in a room down the hall. I probably shouldn’t have said it out loud, but I did: “How come you didn’t call me over before you started your interview?” That only induced a couple of broad grins. There were only two County Detectives then, a Chief and his assistant. Their offices were in with the District Attorney’s offices on the second floor of an ancient building on High Street just north of the main (“historic”) Courthouse. The building had been a theater for vaudeville acts and, later, silent films and early talkies. It was always known as the “Opera House,” and although officially it was the “Courthouse Annex,” most people just referred to it as the “Opera House.” On this particular day, and no doubt many others, the term “Opera House” was fitting: My new client had done her “singing” there. She had told the county detectives that her fourteen-year-old daughter slept in the same bed, their only bed, with her and her husband – the daughter’s step-father – and on a number of occasions the step-father and the stepdaughter had sexual relations when Mrs. Hernandez was there in the bed. She said she was too scared of her husband to interfere.
Thomas Parke, Esquire
“You will have experienced co-counsel because there is another defendant. The two defendants will be tried together. Carolus Wade represents the other defendant.” “Thank you, your Honor. What is the charge against Mrs. Hernandez if I may ask?” “Rape.” He wasn’t kidding. Mrs. Hernandez was charged with Rape and Conspiracy. Not long after Judge Gawthrop’s telephoned Order, I received another distressing call. This one was from the Chief County Detective. “We understand you represent Mrs. Hernandez. She’s here in our office. You can come over here to interview her before we take her back to the prison.” (At that time the county prison was located three blocks away at the corner of New and Market Streets.) Don’t do me any favors, I thought. In those days Miranda warnings had never been heard of. They had informed Mrs. Hernandez, they said, that she had a right to remain silent. But that was just a courtesy – very polite people those County Detectives. When I arrived at the County
Her husband had also given a statement. He had related that the mother had aided in the process of getting her daughter to have sex with him and the daughter never objected. As a result of his statement my client was charged with conspiracy to commit rape. As an Accessory Before the Fact, she was charged with the principal crime of Rape. The “Statements” (“Confessions”) were typewritten and signed by the defendants. The usual procedure was that a defendant would be brought into the County Detective’s office alone with the two County Detectives. There would be a friendly lecture about how much better off the defendant would be if he or she cooperated. The County Detective would then type out his questions and the defendant’s answers using his rapid, two-fingers typing style. At the end of the interview the defendant would be asked to sign. They always signed . . . The trial started the following Monday. The recentlyappointed Assistant District Attorney was intense and full of indignation. He would not consider, for my client, a guilty plea with a recommendation of probation. “She should go to jail and they should throw the key away.” In other words, since she had not been able to post bail, she should stay in jail a lot longer than she had already served awaiting trial. The trial was going smoothly. Too smoothly. Even Carolus Wade, an experienced criminal lawyer, was not scoring many points. Carolus and I had decided - our clients agreed – that
they should not take the witness stand. After less than a day of testimony the prosecution rested its case. The defense presented no evidence. It was time for closing arguments. A minute or two into the Assistant District Attorney’s closing argument a bombshell dropped. “Ladies and gentlemen of the jury, the strongest possible proof of guilt occurred right in this courtroom today. The defendants refused to testify to tell you their side of the story. What could be stronger evidence of their guilt than that?” I knew I was green, but I knew this was wrong. This was all wrong. It wasn’t right. He couldn’t say this. We should get a mistrial or something good for the defendants. Carolus Wade was on his feet. “Objection your Honor. We ask for a mistrial.” I jumped up. “I concur, your Honor.” The judge did not grant the mistrial. Instead he instructed the jury that the defendants, in this great country of ours, had an absolute constitutional right not to testify and that right could not be infringed by allowing the jury to infer guilt from their failure to do so. It was improper for the prosecutor to argue that they should. “Members of the jury, you must ignore the remarks of the prosecutor and infer absolutely nothing from the fact that the defendants chose not to take the stand.” Yeah, right! After the defendants were both convicted of Rape and the jury was discharged, the judge granted a new trial. After my client sat in jail for another month or so waiting for the new trial the District Attorney finally saw the wisdom of allowing her to plead to a lesser charge and get out on probation.
New Matter | 7
CCBA Feature By Barry Rabin, Esquire
By Kevin Holleran, Esquire
W. Edward Greenwood, Jr., Esquire I
t is hard for me to get my arms around the fact that the day has come where only a small percentage of the Bar Association remembers W. Edward Greenwood, Jr., Esquire. He was universally referred to, fondly, as “W. Edward Curmudgeon” even though his extremely gruff exterior was a mere veneer-thin façade to a kind and gentle soul – indeed, a softy. It seems odd to consider, per 2016 customs, that I regularly had lunch with him even though he was half a century older than I. Often, I recall my trying to explain to him [unsuccessfully] in 1982 why I was so enthralled with the Blondie song “Rapture.” Like Bob Gawthrop, he would often pay for my lunch so long as it was just the two of us. I always savored the delicatesse of that. Before I became a partner, whenever I went to a Chester County or a Pennsylvania Bar Association event he would give me an official-looking envelope with 50 smackers in it along with official instructions that it was to be used to buy my friends drinks. That I did but, in those days, $50 was a lot of money and I always had substantial excess. I never successfully returned what remained as he would brush me away when I tried. Among the things he taught me was to eschew the use of the word “attorney” to describe myself or any other lawyer. For it was his position that just as you must be a “friend” of someone [unless, or course, you’re a Quaker] you must be somebody’s or something’s attorney and, further, there is no aspect of “learned in the law” with the naked appellation of “attorney.” 8 | New Matter
He found the rise of substitution of “attorney” for the plain and descriptive “lawyer” a bit distasteful and vulgar but, mostly, ridiculous. He compared it to a Funeral Director taking to calling her or himself a “mortician” — which good Funeral Directors just didn’t and still don’t do. So I use “lawyer” or “attorney-at-law.” You can imagine how it dismays me every time I look at the card issued by the Pennsylvania Supreme Court which says “Attorney’s License.” The other thing he disdained was a lawyer putting an “Esquire” after her or his own name. “Esquire” is an honorific to be bestowed on someone by someone else. He noted that, in olden days, one could always tell who was the scrivenersecretary for any given Bar Association meeting as it was the only lawyer whose name in the minutes was not followed by an “Esquire.” It is self-referential and grandiose of me, I suppose, that when considering my adherence to these by-gone points of form, I think often of Eugène Ionesco’s absurdist play “The Rhinoceros.” Fighting the above two battles is assuredly a hopeless proposition [see the Supreme Court card]. And, notwithstanding my strong feelings, I have, even, on occasion slipped and referred to a lawyer as an “attorney.” Still, I’m going to try ever to follow Mr. Greenwood’s advice on these two issues as I always have on all the many things he taught me.
Where Are All The Young[er] Lawyers? WHERE HAVE ALL THE YOUNG LAWYERS GONE? I found myself pondering this question recently as I was reading an article about the concept of older lawyers “transitioning” their practices to younger attorneys who might want to take them over. Maybe it’s just me, but I’m just not seeing many young lawyers these days when I attend the CCBA’s extremely valuable practice area section meetings. Ditto the monthly “B.U.L.L. Sessions,” where we meet to exchange advice and wisdom on how to run your practice better, bring in more clients, increase your bottom line, or just stay semi-sane in a stressful legal environment. In a typical month, I attend at least two CCBA section meetings (nowhere near the fifteen or so that my colleague Chuck DeTulleo attends, but then his office is only a block away!). I also run the monthly “B.U.L.L. Sessions.” Despite the fact that both the section meetings and the B.U.L.L. Sessions would be extremely helpful to someone who’s building a practice, or just trying to survive in today’s challenging, competitive legal environment, I am constantly amazed at the dearth of under-age-50 lawyers in attendance. So where are these younger lawyers
hiding? And how do we get the word out to them that it would benefit their law practice (and them personally) if they would attend more bar association functions like these? We discussed this topic at a recent lunchtime meeting of the CCBA’s Solo & Small Firm Section. Among the possibilities that were considered: 1. These lawyers don’t read New Matter or the weekly emails, so they don’t know about these sections or group meetings. 2. They’re too busy hustling to make a living to take time out of their day to attend section meetings. 3. They aren’t joining the bar association because the dues are too high for their budgets. As for Possibility #1, that’s a tough one. How can we communicate effectively with people who don’t take the time to read our communications? As for Possibility #2, I can tell you that the time I take out of my workday to attend section meetings and the B.U.L.L. Sessions has been more than worth it in terms of learning how to deal with difficult and unusual legal issues, networking with fellow Chester County attorneys, and getting tips on
how to run my practice more efficiently and more profitably. As for Possibility #3, I can tell you this: It is penny wise and pound foolish for any lawyer in this county – particularly a younger one with a newer practice –not to invest a couple of hundred dollars a year to belong to an organization where attending a few meetings and networking with other local lawyers can result in referred business that’s worth a lot more in fees than what you’re paying in dues. As everyone knows, those of us who are Baby Boomers will be cycling out of practice (whether voluntarily or otherwise) over the next couple of decades. And that means there will be a lot of opportunities for younger lawyers to cut deals and take over some very successful practices. Those lawyers who participate in bar association events and meetings, and who have formed personal relationships with older CCBA members, will be in a far better position to step in and benefit during this transition. Plus they’ll have a lot of fun doing it!
New Matter | 9
www.chescobar.org By Shannon K. McDonald, Esquire
SUPREME COURT AND DOUBLE JEOPARDY:
Bravo-Fernandez v. United States I
n an interesting oral argument in October, the Supreme Court heard the case of two men charged with a federal bribery scheme, and determined whether prior acquittal on other charges precluded them being re-tried on the bribery. Juan Bravo-Fernandez owned a private security firm in Puerto Rico; Hector Martinez-Maldonato was a senator for the commonwealth of Puerto Rico. Bravo-Fernandez wanted legislation that would benefit his business interests. In 2005 he allegedly bought expensive tickets to a boxing match in Las Vegas and paid for travel to, and meals and hotel rooms in, Las Vegas for Martinez-Maldonato and another senator, in return for the senators acting favorably on the legislation. The Petitioners to the Supreme Court, Juan Bravo-Fernandez and Hector Martinez-Maldonado, were charged in June 2010 with bribery in violation of 18 U.S.C. § 666, conspiracy to violate § 666, and interstate travel to aid in violating § 666. In 2011, a jury acquitted them of conspiracy and traveling interstate to aid violating § 666 but convicted them on the § 666 bribery charges. The men appealed their convictions on the basis of flawed jury instructions, and the First Circuit vacated the convictions. The flaw in the jury instructions could have permitted the jury to convict under an improper “gratuity”
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to bribe and traveling interstate to further the bribery. (An immediate pretrial appeal was allowed because the double jeopardy clause represents a “right not to be tried at all” that would be lost if appeal were delayed until after trial.) The First Circuit explained that acquittals that were part of an inconsistent jury verdict did not have preclusive effects on issues that the jury decided, because in such a verdict a court cannot know which of the verdicts it should accept as authoritative regarding how the jury decided factual issues that were inconsistently decided. Therefore, if the First Circuit’s decision were to stand, the men could be retried on all counts, because the jury verdict actually didn’t have preclusive effect. Further, the First Circuit ruled that this case was distinguishable from Yeager v. United States, in which the Supreme Court ruled that when a jury acquits on some counts but is “hung” (cannot reach a unanimous decision) on other counts. It stated the Ashe preclusive effect doctrine prohibits retrial on the hung counts. But the First Circuit ruled that vacated convictions are different from hung counts and the preclusive effect doctrine does not apply to vacated counts or their inconsistent acquittals.
The outcome of this case is obviously important to the futures of these two businessmen, but it also has the potential to impact other defendants in the future who may have been acquitted of some charges but who have had convictions of other charges in the same trial vacated and face the possibility of retrial. Because such a situation involves many facts (inconsistent jury verdicts, convictions that have been vacated, the government deciding to retry some charges), the application in the end may be narrow, but the outcome for those few could be extremely important.
The petitioners petitioned for certiorari and the U.S. Supreme Court granted it to decide whether a conviction that is both vacated and unconstitutional can negate the preclusive effect of an acquittal under the Double Jeopardy clause. Thus the question of how Ashe and Yeager apply when vacated convictions are present alongside acquittals is now before the court.
The First Circuit remanded the case to the district court where the government sought to retry the bribery charges. Bravo-Fernandez and Martinez-Maldonado moved to preclude the retrial of the bribery charges based on the Double Jeopardy Clause. The Double Jeopardy Clause not only prevents a defendant from being retried on the same charge, but also prevents an issue from being retried after a jury has found the issue in the defendant’s favor in a trial that resulted in an acquittal. They argued in their motion that, because the jury had acquitted them of conspiracy to violate § 666 and traveling interstate to aid in violating § 666, the issue of their potential bribery in violation of § 666 was precluded, so the § 666 bribery charges could not be retried after the First Circuit vacated the convictions.
In short, the petitioners argue that an acquittal still precludes retrial of an issue that the acquitting jury found in the defendant’s favor, even if the jury also returned an inconsistent conviction that has been vacated. Petitioners contend that because Supreme Court precedent dictates that a hung jury does not nullify an acquittal’s preclusive effect, neither should a vacated conviction, because both a hung jury and a vacated conviction are “legal nullities” which should not affect an acquittal’s preclusion of a retrial of an issue. Further, they argue that, a valid verdict cannot be used to question another valid verdict and therefore, neither should an invalid verdict (the vacated convictions) be used to question a valid verdict, such as the acquittal in this case. Finally, the petitioners maintain that allowing retrial here would go against the principle that a vacated conviction is equivalent to a clean slate and they contend that allowing a retrial would lead to a rise in prosecutorial abuse.
The district court denied the motion, and the First Circuit affirmed, explaining that the jury verdict that included the acquittals and convictions was inconsistent, because in this case, a reasonable jury could not have found that the defendants were guilty of bribery but not guilty of conspiring
The United States, as the respondents, argue that the acquittals should not preclude retrial of the charges for which the petitioners were convicted. Because the jury returned inconsistent acquittal and conviction verdicts, a court cannot determine if the jury decided issues in the petitioners’ favor
theory instead of for bribery; gratuity is not prohibited conduct.
in the acquittals, so a court cannot decide whether any issues should be precluded from retrial. The government also insists that the fact that the convictions were vacated does not mean a court cannot consider those convictions when determining what a jury decided and if a jury decided an issue in the defendant’s favor as part of an acquittal. Finally, the government argues that it is important to allow courts to retry convictions that have been vacated because a vacated sentence does not always mean that the defendant did not commit the crime.
New Matter | 11
CCBA Feature In prior accounts, Judge Carlton encountered Three Strikes, recidivism, contentious civil trials, the death penalty, and legal ethics. Now he confronts a juvenile law case without any winners.
Convergence By Justice James Marchiano (ret.)
n Department 47 Judge Raymond Carlton looked at the sentencing report, reflected over his trial notes, and realized a disastrous convergence of time, space, and motion transformed lives in a way that the justice system could never repair. Four lives, who had never met, intersected, and one ended up in front of Judge Carlton six months later with dreams shattered.
Nineteen-year-old Antoine Carvell pulled $65 from his wallet, gave it to a Project Trojan gang member, and received a loaded .38 special in return. Recent gang trouble caused Antoine to want to arm himself for protection. He told a friend of Rashad’s about Turner Smith’s open door party. Carvell then headed for the Saturday night party with whomever might show up, secreting the revolver under his shirt.
Six months before, at a Pizza Hut, Rashad Johnson, a short, slight seventeen-year-old, wiped his wire rimmed glasses and studied a freshly baked pepperoni pizza as he sliced it into equal triangular pieces for a customer. In his mind he calculated that sine divided by the cosine equaled the tangent or the width of the pizza, sixteen inches. Numbers always came easy to him and trigonometric functions were no exception. His mind quickly reassembled numbers and shapes into inter connected, harmonious sequences for their resolution. Rashad was the hope of the Johnson family, consisting of a single mother and five brothers and sisters, Rashad being the oldest, all fortunate to have Section 8 housing in Antioch. Seemingly college bound, a strong candidate for two scholarships, a near perfect SAT math score, Rashad worked after school to help put food on the table for his family. That Saturday, he cashed his small paycheck and gave the money to his mother. Saturday night was a night to close out a week of late night studying, tutoring a younger brother, and rolling out pizza dough, by going to a party across town in Antioch. A different pizza would alter his life.
Twenty-two-year-old Turner Smith turned up the rap music of T.I., 50 Cent, and Dr. Dre, chilled some cases of Tecate beer, and got ready for the party at his recently rented condo on H Street. Like a tempting siren call, his twitter invitation to friends was soon circulated to a wide range of people looking for some action on a warm Saturday night.
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In downtown Antioch, Hector Ramirez stoked the oak wood in the brick oven of his small pizza shop with his young cousin Jaime, who helped deliver pizzas in an old Corolla. Hector emigrated legally from Guatemala fourteen years before, worked doggedly as a dishwasher in a restaurant, then as an afterhours janitor for fast food stores, a pizza maker and delivery person. Finally, trying to achieve his American dream, he obtained an SBA loan with the help of the Antioch Redevelopment Agency, and proudly opened his own pizza shop, “Hector’s,” where he worked fifteen hours a day building up his business. Recently married to Selena, he had two young children to support. His business had just begun to thrive through word of mouth about his unique oven fired crust and south of the border spices.
By 11:30 p.m. at Smith’s, the beer was gone, the snacks devoured, and the hanger-on’s were left with little money after buying pot and making beer runs to the local Seven Eleven. Like a fateful omen, a shrill voice in the living room called out he was hungry for a midnight snack, and several others echoed a similar craving, but no one had the money for extra-large pizzas. Turner Smith remembered Hector’s, and so half sober called for a delivery. Hector could hear the rap music and a chaotic background of loud voices yelling at one another as he wrote down the order and address. He knew the H Street address was in a rough part of town. At the other end Turner Smith devised a plan to take care of the pizza: rip off the delivery boy when he arrived and send him on his way. Hector had an uneasy premonition something was amiss. He told Jaime he would accompany him on the delivery. They baked two extra-large pizzas, cleaned up the shop, closed for the night, and headed toward the H Street address. Jaime did not want Hector to go with him, telling him to go home to his family. But because of a gut feeling, Hector insisted on going along and brought a baseball bat for protection in case of trouble. Carvell, Smith, Rashad Johnson, and others argued about how they would handle the delivery. Rashad had never smoked so much marijuana, was light headed, and wanted no part of the scheme. But Carvell insisted that Rashad “be the man,” and they would help. Others chanted, “Rashad. Rashad.”
Rashad quickly computed the numbers: two extra-large pizzas at $18 each, with an 8.75 percent tax, and a 10 percent tip for delivery totaled $43.15, but no one had $43.15. Collectively they only had $27.45. Rashad calculated a 36.2 per cent shortfall. So Rashad, Smith, Carvell, and Hector Ramirez all converged at 12:10 am on H Street. As the Corolla pulled up in front of the condo, Carvell forced the .38 special into Rashad’s palm at the open front door. Jaime started to walk up the steps with the pizzas. Hector waited a short distance behind in the shadows with the baseball bat. Some of the partygoers, including Turner Smith, shoved Rashad, with the gun in his hand, onto the front porch and screamed, “Give us the fuckin pizzas.” Jaime backed off, as Hector waving the bat, came around him and confronted Rashad. Rashad felt someone push him forward and yell, “Shoot him!” Everyone and everything converged in one fatal, surreal moment. Somehow the gun fired once. Hector tumbled to the pavement, bleeding profusely from his stomach with a mortal bullet wound. Rashad cried out, dropped the gun, and ran down the street, as if in slow motion mode from a terrifying graveyard. He made it back to his house where his mother had been waiting up for him. He said nothing about what transpired. Jaime desperately called 911 and tried to stop the abdominal aorta bleeding until an ambulance arrived. A pool of blood Continued on page 14 New Matter | 13
Continued from page 13 covered the sidewalk and two boxes of pizza. The crowd at the house scattered at the gunshot, leaving Turner Smith to answer questions about what happened at his condo. The gun was nowhere to be found. Smith would not snitch, but begrudgingly mentioned the names of a few of the partygoers, well known to the Antioch police, who were contacted and talked in vague bits and pieces about a “Rashad” and what happened. Like an unravelling spool, one interrogation led to another. Jaime was able to describe the shooter, a youngish, 5 foot, 7 inch, thin, black teenager, wearing glasses. The follow up Antioch police work was swift. A scared Rashad was located, questioned, and arrested the next day at his home, and transferred to the juvenile detention facility in Martinez. Hector Ramirez’ body was transferred to the county morgue for an autopsy, then to a funeral home, and Holy Rosary Church for a burial Mass. His widow Selena was inconsolable. Because Welfare and Institutions code Section 707 allows a 17-year-old minor to be charged in adult court with adult sentences when the crime is murder, Rashad Johnson appeared in Department 47 before Judge Raymond Carlton for a jury trial. The gifted student now faced countless years in state prison instead of a four-year university education. Veteran public defender Joyce Sawyer was at her best in convincing the jury of eight women and four men to reduce the crime to voluntary manslaughter rather than a twenty-five year to life first degree murder conviction that the prosecuting attorney urged. Through Judge Carlton’s careful rulings during trial, the prosecution obtained an appeal-proof conviction for voluntary manslaughter and attempted robbery, but there were no winners, no moral victory to proclaim. So Judge Carlton reviewed the Probation Officer’s sentencing report recommendations, saw hopes dashed, promises unfulfilled, and lives changed by a brief, deadly convergence. The sentencing hearing was gut wrenching for the judge. Mrs. Johnson did not understand state prison was legislatively mandated for the commission of the crime with the use of a gun. With Rashad’s four brothers and sisters in court, their pastor from the Baptist church, and several of Rashad’s AP math teachers, she pleaded for some form of probation under strict supervision to allow Rashad to make use of his talents and provide for his family. She explained he was remorseful, repentant, and resolute to make amends. Rashad’s minister begged for mercy and compassion. Rashad removed his glasses and tearfully asked for forgiveness, apologized, and looked for a chance to make something of himself, but the sentencing law did not allow such chances. 14 | New Matter
Who is Winning the Battle? “Content strategy” remains a leading strategy in legal
The prosecutor called Hector’s widow Selena who explained haltingly through an interpreter how Hector’s death forever affected the family. Hector was their sole support, their love, their anchor. Tears streaming, she tried to explain she did not know how to run a pizza business, her education was less than high school, and she had two little children to raise by herself. The California Victim’s Assistance Compensation program paid a maximum of $63,000, not nearly enough for their loans and modest home, and other daily expenses. They had no savings or insurance for the losses and had just started to turn their lives around when Hector was killed. In Spanish she sobbed, “Dios mio, que voy a hacer?” “My God, what am I going to do?” She begged for help from a helpless court that could only sentence her husband’s assailant and do little more. Mrs. Johnson tried to reach out to Selena as she returned to the public seating, but was rebuffed. The courtroom felt as if Lady Justice had tightened her blindfold so tautly that any sense of compassion was blacked out. After a few words explaining the process, Judge Carlton imposed the sentence required by the penal code and the circumstances of the case: the midterm of six years, finding aggravating and mitigating circumstances roughly offsetting to avoid a higher term, and added an enhancement of four years for use of a gun, as required by the law then in effect, for an aggregate term of ten years in state prison. The sentence for attempted robbery was to be served concurrently. Credit for time served and state prison credits, fractionalized for good behavior, were factored in as the clerk added everything together in the recorded judgment. As defendant Rashad Johnson listened, his keen mind was able to calculate the sentence that determined his uncertain future faster than anyone in the courtroom. Judge Carlton, emotionally spent, watched the transportation deputies lead the defendant out, head down, in handcuffs that barely restrained his thin wrists.
marketing, and many law firms generate content at a rate that, at times, seems comparable to legal publishers. Professional services firms generate content to (1) demonstrate thought leadership in their area of law and (2) stay top of mind with clients and potential clients. Professional services firms spend thousands to millions of dollars every year creating content so they can market their expertise. It’s a big investment – a lot of opportunity cost – yet many firms do not have in place a comprehensive way to measure ROI.
By Elizabeth Mell
The study also provides data on the impact of content length on the likelihood of shares. Interestingly, for other industries, longer content pieces receive a greater number of shares, But, for legal and accounting firms, shorter content pieces were shared more often. Thanks to this research, we now have some facts and figures to help convince lawyers that every blog post, alert or article need not be a legal treatise. In fact, shorter, more frequent articles that concisely convey the point and demonstrate some analysis on the part of the author will have a bigger payoff.
With all of the investment in content generation, adding up to significant dollars in lawyer time for many firms, what is the return on investment? A recent study by Infinite Spada indicates that ROI for law firm content is definitely not as good as it should be. The study “Attorneys vs. Accountants: Who is Winning The Content Battle?” notes that while lawyers and law firms are great at creating content, lawyers are lagging far behind their counterparts in accounting in “content amplification.” In other words, accountants are much better in making sure their content is actually seen. The study, done in partnership with content intelligence firm Buzz Sumo, focused on shares of content across social media channels and found that accounting firms outperformed law firms across all of the leading social platforms – LinkedIn, Twitter, Facebook and GooglePlus.
T N E T CON EGY T A R T S
The study provides specific strategies and tactics on how to increase the number of content shares. It demonstrates that using infographics, video, photos, original research and co-produced content greatly increases the likelihood that content will be shared.
New Matter | 15
Fall Bench Bar October 6-8, 2016 at Skytop Lodge
16 | New Matter
New Matter | 17
Your client’s claim really begins...
…before the smoke clears.
…before the water dries.
Flying Solo Presents
…before the storm subsides.
How not to Lawyer Call IAB before bad gets worse.
By Shannon K. McDonald and Mary LaSota, Esquires
e spotted this one on the Pennsylvania Supreme Court Disciplinary Board’s newsletter, and couldn’t help but follow up with our own article:
Disaster hits fast, hard and without mercy. If your client’s property is damaged, every second and every dollar counts. Insurance companies move quickly to protect their interests, and so should you on your client’s behalf.
In Huntingdon County (between Pittsburgh and Harrisburg, we had to look it up too) a woman was recently jailed for posing as a lawyer. Kimberly Kitchen had been working as a lawyer for ten years, but not just as any lawyer, but as the brightest lawyer in Huntingdon County.
Your first call should be to IAB, the Insurance Adjustment Bureau. We work for the policyholder, dealing directly with insurance companies, handling the paperwork, advising and assisting with policy interpretation, estimates, appraisals, inventories, loss documentation, claim filing, and negotiations.
I suppose this is a case of go big or go home. She claimed to have graduated first in her class from Duquesne University School of Law and to have taught estate planning at Columbia Law School, and created documents purporting to show these and other credentials. She became an estate-planning partner with a Huntingdon County law firm, and even served as president of the Huntingdon County Bar Association.
Most importantly, we expedite the settlement and make sure your client receives every penny to which they’re entitled. When disaster stikes, call us – 24 hours a day, 365 days a year. Because, even before the smoke clears, the water dries or the storm subsides, we help pick up the pieces. Call 24/7/365 800.441.7109 toll free or 610.667.1617
With those kind of credentials, and her background as a legal secretary offering her the actual knowledge to do the work, she was apparently able to get away with it. Kitchen was even once a partner at the BMZ law firm, a sizable firm in that area with three offices.
Or visit iabclaims.com
Insurance Adjustment Bureau, Inc. Public Adjusters
Insurance Adjustment Bureau, Inc. Public Adjusters
After that, Kitchen’s ruse unraveled. The Attorney General’s Office got involved, and eventually, Kitchen was prosecuted. Judge Fredric Ammerman, who presided over the case, criticized the Attorney General’s Office for not filing more counts against her, based on the evidence they had of Kitchen’s conduct. On July 19, 2016, Kitchen was sentenced in the Court of Common Pleas of Huntingdon County to two to five years’ imprisonment, more than twice the sentence recommended by Pennsylvania’s guidelines. Judge Ammerman said Kitchen’s actions had an extreme negative effect on lawyers in Huntingdon County and now those real professionals are left dealing with the fallout of her lies. I guess it gives new meaning to the term “jailhouse lawyer,” and also provides an excellent example for anyone who might have been thinking of stepping outside the truth on their resume.
© 2016 Insurance Adjustment Bureau, Inc. IAB logo Reg. T.M., Call us before bad gets worse. and Call IAB before bad gets worse. T.M., Insurance Adjustment Bureau, Inc. All rights reserved.
18 | New Matter
After a decade of fooling a community, a lawyer was compiling a list of attorneys in the Huntingdon County Bar
Association by order of senority, when he found he couldn’t find anything on Kimberly Kitchen. In this era of quick attorney look-ups on the Disciplinary Board’s site, I’m sure it became apparent quickly that she was not actually licensed.
New Matter | 19
Save Our Environment
Save Our Environment
Robinson Township IV: The Long Saga of the Legality of Act 13, the new Pa Oil and Gas Act, Is Over: The Pa Supreme Court Resolves Several Constitutional Challenges, But Declines to Resolve Questions About the Scope of Art. 1, Sec. 27 (the Environmental Amendment) of the Pennsylvania Constitution
In the September 28, 2016, decision in Robinson Township IV, the Pa Supreme Court held:
By John R. Embick, Esquire Chairman of the Environmental Law Section
n Wednesday, September 29, 2016, the PA Supreme Court issued a decision concerning various unresolved issues regarding Act 13 of 2012, the controversial revision to the Pennsylvania Oil and Gas Law. The revisions to the Oil and Gas Law made a number of important and controversial changes in order to accommodate the development of the Marcellus Shale Gas formation, and the use of directional drilling and hydraulic fracturing techniques. The case was decided as a consolidated appeal, and was captioned as Robinson Township, et al., v. Commonwealth of Pennsylvania, et al., 104 MAP 2014 (“Robinson Township IV”). It is fair to say that, from a constitutional standpoint, the new Pa. Oil and Gas Act is deeply flawed. The procedural history of the case is long and complex, and involves several trips from Commonwealth Court to the Pennsylvania Supreme Court and back. Act 13 was passed in 2012, and was quickly appealed to Commonwealth Court (“Robinson Township I”) and then to the Supreme Court. Challenges were raised on many issues, including the ability of the Pa. Legislature to negate local land use and zoning laws. The Supreme Court’s initial decision was rendered on December 19, 2013, in the case of Robinson Township, et al. v. Commonwealth of Pennsylvania, et al. 83 A.3d 901 (Pa.2013) (“Robinson Township II”). Robinson Township II raised many interesting issues related to standing, ripeness, separation of powers, due process, statutory and constitutional interpretation, and the scope of the authority of the General Assembly and Pennsylvania municipalities.
20 | New Matter
Robinson Township II held that Commonwealth Court incorrectly determined that certain appellants did not have standing to raise certain claims, or that certain claims could not be brought in a petition for review in Commonwealth Court’s original jurisdiction and remanded for further consideration. Further, Robinson Township II held that Commonwealth Court correctly found that 58 Pa.C.S. §§ 3215(b)(4) (well location waiver provisions) and 3304 (uniformity of local ordinances) were unconstitutional (but on different grounds). The Pa Supreme Court also ruled that remand to Commonwealth Court was necessary because the Pa High Court reversed Commonwealth Court’s dismissal of the claims brought under Art. 1, Sec. 27 of the Pennsylvania Constitution by holding that 58 Pa.C.S. §§ 3215(d) (consideration of municipality and storage operator comments) and 3303 (oil and gas operations regulated by environmental acts – preemption of local law) in fact were unconstitutional under Art. 1, Sec. 27. As a result, the Pa Supreme Court also directed Commonwealth Court to address whether any of the relevant provisions of Act 13 were severable. The plurality opinion in Robinson Township II, authored by Chief Justice Castille (now retired due to the mandatory age retirement provisions in the Pennsylvania Constitution (and this controversial issue is on the upcoming November 8, 2016 General Election Day ballot)), dramatically expanded the scope and effect of Art. 1, Sec. 27 (the Environmental Rights Amendment). The problem was that Castille’s opinion was a plurality opinion, and so does not serve as binding precedent on lower courts in many respects. The parties to the case and Commonwealth Court agreed on the issues which were to be determined on remand, and Commonwealth Court rendered its decision in 2014 in Robinson Township v. Commonwealth of Pennsylvania, 96 A.3d 1104 (Pa. Cmwlth. 2014) (“Robinson Township III”). The decision was then appealed to the Pa. Supreme Court, which heard arguments on March 9, 2016.
1. Provisions limiting the disclosure of chemicals used in hydraulic fracturing operations to a health professional, specifically the requirement for the health professional to execute a confidentiality agreement, violate constitutional provisions related to enactment of special laws and are unconstitutional (See, Slip Op. at 53);
www.chescobar.org justices were recently elected to the High Court (elections continue to matter!). In a concurring opinion, Justice Baer agreed with the results achieved in Robinson Township IV plurality decision on every issue, except that he felt that the requirement that the Department of Environmental Protection notify any public drinking water facility of a spill, did not constitute a special law in violation of Article III, Section 32 of the Pennsylvania Constitution.
2. Provisions giving authority to private companies to use eminent domain for the purpose of creating natural gas storage facilities are unconstitutional (See, Slip Op. at 78); 3. Provisions requiring DEP to provide notice to only public water suppliers in the event of a spill related to drilling operations, and not notifying individual well owners, violate constitutional provisions related to enactment of special laws and are unconstitutional (See, Slip Op. at 65). The Court delayed this portion of the ruling for 180 days to allow the General Assembly to enact a legislative solution; 4. Affirmed the previous Robinson Township II ruling which held that certain provisions of the Pa Oil and Gas Act that prohibited local governments from regulating drilling operations, was unconstitutional, and also which enjoined the Pa. Public Utility Commission from reviewing local ordinances for compliance (See, Slip Op. at 47); and 5. Held that the provisions of the Pa. Oil and Gas Act do not violate the single subject rule for legislative enactments (See, Slip Op. at 50). As to the scope and meaning of Art. 1, Sec. 27, the Pa High Court noted that the Pa PUC (a party to the appeal) had requested that the plurality opinion of Robinson Township II regarding Art. 1, Sec. 27 be reconsidered and/or clarified. However, the Supreme Court found that the issue had not been preserved for appeal, and thus declined the invitation to revisit the groundbreaking Castille opinion. Slip Op. at 51. However, in the Robinson Township IV majority opinion, the Pa High Court cited in a footnote as support, the provision of the Robinson Township II plurality opinion which held that a municipality’s duty to protect the environment for the benefit of its residents is not merely a creation of statute, but rather is an affirmative obligation placed on these entities by Art. I, Sec. 27. Slip Op. at 36, citing Robinson Township II, 83 A.3d at 97778. What municipalities are required to do in fulfilling this affirmative obligation is still unclear. It looks like we are going to have to wait longer for a definitive interpretation of Art. 1, Sec. 27, by the Pa Supreme Court, but I note that the majority opinion in Robinson Township IV was authored by Justice Todd, and was concurred in by Justices Donohue, Dougherty and Wecht. The latter three
New Matter | 21
Ramblings From A Legal Law Clerk
Agent K 1 Was Wrong By Mya Noonus
read every day. I love to read. I have a vivid memory of being very young and sitting in my bedroom floor with my “Fun With Dick And Jane”2 book opened on my lap. I felt giddy from the sound of my voice forming the words. At the same time, I traced the colorful pictures with my finger, pure heaven. I was transfixed by the stories of these blond and blue-eyed children playing on the sidewalk, in the park, or by a stream. I did not live on a curb-sided street or near a park, and the only stream I knew was created from the hose my father used to water the grass. But, through Jane and Dick, I experienced each adventure as if it was my own. Reading remains my passion, my escape. Yes, even reading legal precedent lightens my soul. I realize that this reaction may seem abnormal, but at least my opted stress release can be enjoyed indoors and isn’t accompanied with a warning of possible death. Nonetheless, there is one type of reading that weighs on me, reading “jail mail.” “Jail mail” is exactly what it describes, mail from jail. These letters get my review first as, more often than not, they are ex parte. For the most part, these letters are desperate pleas from men and women who feel powerless and trapped. Such letters can be heart-wrenching. I think our representatives in Harrisburg felt sympathy for these men and women when they passed the Post Conviction Relief Act (PCRA)3, and enacted a mechanism to review the fairness of an inmate’s past trial. Under the PCRA, an inmate may proceed with an “encore” even after “Elvis has left the building.” 4 Knowing that there is a review mechanism that may help lessen feelings of helplessness for those who are imprisoned lightens my soul, until I begin to review the letter before me 22 | New Matter
that is identified by the Clerk of Courts a pro se PCRA petition. This is not this inmate’s first or even fifth PCRA petition. Suffice it to say, his “first” PCRA petition was filed in the late 1970s and an opinion was filed by the Honorable John E. Stively, Jr. … on redlined onionskin paper. I know this because I went to the basement of the Justice Center and found this inmate’s file containing Judge Stively’s original order. After reviewing the 100 plus page docket and diving into five bank boxes, I am finally able to piece together over three decades of procedural history. To my utter surprise and amazement, I find myself in the legal version of dendrochronology heaven. Each piece of paper is a tree-ring and this inmate’s tree is a sequoia. Almost every judge who presided over a criminal list in Chester County from the late 1970s to 2015 has touched this case. I am not only reading about history but touching it. Each opinion assembles a chronology of how the Chester County Court of Common Pleas has analyzed this case not only throughout time and changes in the law, but also during changes in the public’s perception of our legal system.
You may want to ask me why do I go to such lengths and refuse to rely on what was done before? I give you two reasons. First, it’s my job to be precise. PCRA petitions are tricky. Establishing what is and is not in the record, the ENTIRE record, is very important.7 For each PCRA petition, the initial trial and every subsequent PCRA petition must be re-examined. The number of previous PCRA petitions filed is immaterial to the merit of a present PCRA petition. Changes in the law may allow for further review not permitted previously.8 And the second reason I do what I do is that I don’t ever want a case I reviewed to be later found lacking, i.e. that an inmate is discovered to have been unjustly incarcerated.
The Court’s first examination was made using the law at the time, the Post Conviction Hearing Act of 1966 (PCHA).5 The Court’s subsequent examination addressed the changes made in 1988 when the PCHA was partly repealed, modified, and renamed the Post Conviction Relief Act (PCRA).6 It is evident from the Court’s opinion that it struggled to make an appropriate determination and took great pains in scrutinizing the “new” act. After numerous years of having the PCRA on the books, the Court’s later opinions are more confident and filled with precedent. These past orders are the core bowlings of my legal sequoia.
While holiday music plays in my chambers, I walk out of my judge’s office after placing a 14½ page memo in the inbox, and think to myself without reservation … “HARK! Elvis is dead.”
In Men In Black. Dir. Barry Sonnenfeld. 1997. Columbia Pictures. The character Agent J tells Agent K: “You do know Elvis is dead, right?” Agent K responds: “No, Elvis is not dead, he just went home.” 2 Dick and Jane series, Foresman & Co., (1930’s). Google it! 3 42 Pa.C.S.A. § 9541 et seq. 4 Horace Lee Logan announced the following statement in order to disperse the audience who waited for more encores and refused to leave: “All right, all right, Elvis has left the building. I’ve told you absolutely straight up to this point. You know that. He has left the building. He left the stage and went out the back with the policemen and he is now gone from the building.” (December 15, 1956), see http://www.straightdope.com/columns/021227. html: The Straight Dope - What is the origin of “Elvis has left the building”? 5 Legislation to address the increase in post-conviction challenges from inmates was first enacted in 1968, the Post Conviction Hearing Act (PCHA). 19 Pa.C.S. §§ 1180-1-1180-14, recodified 42 Pa.C.S. §§ 9541-9551 (repealed). 6 42 Pa.C.S. §§ 9541 et seq. (1988). 7 See Commonwealth v. Rowe, 259 A.2d 678 (Pa. 1969)(the record did not clearly refute petitioner’s allegations). 8 On January 25, 2016, the Supreme Court of the United States determined in Montgomery v. Louisiana that its prior decision, Miller v. Alabama, 132 S.Ct. 2455 (2012), is to be applied retroactively on collateral review. Any inmate who offended while a juvenile can collaterally attack his/her mandatory life without parole sentence by filing a P.C.R.A. Petition.
New Matter | 23
The Blank Page
AGO By Mark Blank, Jr., Esquire
h, yes (as my 7th grade geology teacher/9th grade anthropology teacher used to say). Wow, what a year! 1966! Where were you, that is, if you existed? Where was I? Well, maybe at the drive in; or on the Pennsylvania Turnpike between the Fort Washington Exit and Downingtown (typically between 3:00 and 4:00 A.M.); or on an archeology dig (Anthropology 601) in the swampy jungles of southwest Louisiana. (Yes, the annoying mosquitos were nothing compared with the alligators and cottonmouths.) Or flipping records as a DJ on the campus radio station. In the news, a burn-in on the square in Memphis (no, not book burning): Beatles albums and forty-fives, in reaction to John Lennon’s somewhat controversial statement: “We are more popular than Jesus.” And speaking of the Beatles, they performed their last live concert as a foursome. Where? No, not Shea Stadium (that was 1965), but none other than at Candlestick Park. African-American teenagers rioted in Watts; two persons were killed and at least 25 injured. More troops were added and sent to Vietnam, as the war escalated. In sports, that historic tie football game between Notre Dame and Michigan State. ( Notre Dame went on to win the National championship.) The Baltimore Orioles defeated the defending champions (the Los Angeles Dodgers) in the World Series. In film, Arabesque (Stanley Donen), Gregory Peck, Sophia Loren; The Chase (Arthur Penn), Marlon Brando, Jane Fonda, Robert Redford, Angie Dickinson, E.G. Marshall, Janice Rule, Robert Duvall; Who’s Afraid Of Virginia Woolf? (Mike Nichols), Elizabeth Taylor, Richard Burton, Sandy Dennis, George Segal. In pop music - wow! The Mamas and the Papas, California Dreaming, Monday Monday, I Saw Her Again; The Beatles, Try To See It My Way, Paperback Writer, Eleanor Rigby/Yellow Submarine; The Kinks, Lazing On A Sunny Afternoon; The Hollies, Bus Stop; The Critters, So Mystifyingly Glad, Younger Girl; Tommy James and the Shondells, [My baby does the] Hanky Panky; The Beach Boys, God Only Knows/Wouldn’t It Be Nice, Good Vibrations; The Rolling Stones, Paint It Black, Mother’s Little Helper; The Cyrkle, Turn Down Day, Red Rubber Ball; The McKoys, Oh, Don’t You Worry; Simon and Garfunkel, I Am A Rock, Hazy Shade Of Winter; The Monkees, Last Train To Clarksville; Count V, Psychotic Reaction; Donovan Leitch, Sunshine Superman; Los Bravos, Black is Black; Nancy Sinatra, These Boots Are Made For Walking (although my voice is not made for singing); Keith, 98.6; The Left Bank, Walk Away Renee, Loving Spoonful, Summer in the City, Mystertians (?), 96 Years.
24 | New Matter
In the courts, I recall perhaps the most famous custody case of all time. Harold Painter lost his wife and one of his children in a car accident. He gave his remaining child to the care of the maternal grandparents, supposedly on a temporary basis. On his request for the return of his son (Mark), the grandparents refused and the court awarded custody to the grandparents. The court noted, in particular, that Harold was a “political liberal” and that the grandparents were “good Christians.” Painter v. Bannister, 258 Iowa 1390, 140 N.W. 2d 152 (1966). Mark, for whatever reason or reasons, was reunited with his father. Now let us turn to SCOTUS. In Miranda v. Arizona, 384 U.S. 436 (1966), the Court held that, when in police custody, a suspect must be advised of his right to remain silent, anything that he says can be used against him and that he has a right to a lawyer. Any statements made without such warnings will not be admissible in court (5-4). In Sheppard v. Maxwell, 384 U.S. 333 (1966), the Court held that the defendant, who was convicted of murder in the trial court, was entitled to a new trial because of the prejudicial pretrial and trial publicity created by the media. The court balanced the First Amendment freedom of the press and the Sixth Amendment right of an accused to a fair trial. (Per Justice Clark, Justice Black dissenting.) In Kent v. United States, 383 U.S. 541 (1966), the Court opined that a juvenile is entitled to the full gamut of due process rights in a judicial determination as to whether he should be tried as an adult. This case was a precursor to In re: Gault, 387 U.S. 1 (1967), in which the Court held that juveniles are entitled to virtually all of the due process rights to which an accused is entitled in a criminal case. In United State v. Price, 383 U.S. 787 (1966), the Court reversed the District Court’s dismissal of indictments against eighteen men alleged to have conspired with the Ku Klux Klan in the murder of three civil rights workers in Philadelphia, Mississippi in 1964. (See: 18 U.S.C.§ 241 and §242.) Justice Fortas spoke for a unanimous Court, with Justice Black concurring.
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Ginsberg v. United States, 383 U.S. 463 (1966), was one of several cases that year in which the Court grappled with the issue of obscenity and the First Amendment. In all of the cases, the Court applied the test as set forth in Roth v. United States, 354 U.S. 476 (1957), later clarified and redefined in Miller v. California, 413 U.S. 15 (1973). I could go on ad infinitum, but I will stop here so I that can read everything else in this issue of New Matter.
New Matter | 25
Dictum for Dummies
From the Archives
“ Over a Barrel” By Karyn L. Seace, Esquire
n this issue, I will look at the expression “over a barrel.” We Pennsylvanians can take credit for this one! This expression was first recorded in 1869, in a cartoon from the Pennsylvania newspaper The Clearfield Progress. Prior to cardiopulmonary resuscitation being widely used in the United States, the custom for attempting to revive a drowning victim was: to place the body face down, over a barrel, and roll it back and forth in an effort to empty the lungs of water. Thus the expression came to mean “in a dire predicament.” The fate of the unconscious drowned person was entirely dependent on the actions of those around him. The expression still survives today, although thankfully the practice of cardiopulmonary resuscitation has become the standard. It was not until 1956 that the United States recognized mouth-to-mouth. However, it is interesting to note that the first documented mention of mouth-to-mouth came
26 | New Matter
in 1740! The Paris Academy of Sciences suggested mouthto-mouth resuscitation as a specific remedy for drowning! In 1767 The Society for the Recovery of Drowned Persons (the “Society”) was organized. It was a group of wealthy and socially conscious residents who together formed a step-bystep set of rules to follow in the event that a person may have drowned. In 1773, William Hawes, an English physician and a founding member of the Society, began publicizing the technique of artificial respiration to resuscitate people who looked as though they may have drowned. For a short time, he paid a monetary incentive, out of his own money, to any fellow citizen bringing him a person who had been salvaged from the water within a short time of total immersion using the Society’s technique. So next time you hear the expression over a barrel, you’ll know exactly from where it came.
New Matter | 27
From A Trial Attorney: How To Prepare For A Business Dispute
“It Looks Like This Might Get Ugly”
here is a point in time leading up to business disputes where you may find yourself saying the above quote. This dispute could be with a business partner, an employee, a vendor or customer, or another entity with whom your company may have an agreement. While you may not have been served with a complaint, or decided if you are going to file a lawsuit against your potential adversary, there are important steps to take and critical pitfalls to avoid. The period of time leading up to the “pot boiling over” is critical in the successful outcome of future litigation. Here are 10 tips that will help you prepare for a lawsuit:
1. L imit written communications with the other side. O f the ten items I’ve listed in this article, this is undoubtedly the most difficult. The time period leading up to a potential future lawsuit is the time in which the parties are often trying to convey their issues and hopefully work things out. Keep in mind, lawsuits involve discovery and the production of documents. The rules of evidence in state and federal courts provide that anything you put in writing is almost automatically admissible as evidence as an “admission” of a party opponent. This means anything you put in writing (especially electronic mails) can be used in trial against you. Be cautious of what you put in writing. To the extent you believe a dispute is going to likely go to litigation, you should cease all written communications with the other side that are not first reviewed by your attorney. 28 | New Matter
By Robert A. Burke, Esquire
2. Preserve evidence. Lawsuits involve a period where the parties are entitled to discovery. This means that documents that relate to the dispute must be turned over to the other side. Most jurisdictions (especially federal courts) specifically direct that all parties maintain all evidence. This is especially true with electronic data, such as electronic mail. The parties are under a direct obligation to preserve Electronically Stored Information (ESI). A significant problem can occur in the event a party permits information (including ESI) to be destroyed (intentional or not). Legal authority in most jurisdictions provide for what is called an “adverse inference.” This means that if you permit information to be destroyed (even if this information is harmless and the destruction was innocent), it will be presumed that the information was damaging to your case. This adverse inference is often very difficult to overcome.
3. Don’t create evidence.
I n the same vein, do not create any new documents. This includes emails or any internal reporting that could subsequently be turned over in the discovery stage of any litigation. In most instances, the fewer documents you are required to turn over the better. Creating documents may only serve to limit the positions you are able to take once the litigation commences.
4. Limit verbal communications.
A s with written documents, the parties are also able to “discover” the content of verbal communications. Accordingly, it is important to limit verbal communications both with your potential adversary and any internal verbal communications with your own employees. The parties are entitled to take depositions of witnesses, including these employees. It’s important to limit any verbal communications with employees who are not within your control group (meaning those who are not officers or owners of your company). Employees can have different levels of recollection regarding things that are said in meetings. Additionally, someone sitting in a meeting overhearing verbal communications regarding a dispute one day may not be your friend 18 months later when his deposition is being taken in a future lawsuit. It’s best to avoid these potentially conflicting recollections by limiting any verbal communications regarding a dispute.
5. No “mea culpa.” “ Mea culpa” is a Latin phrase that
translates into English as “my mistake” or “my fault.” The “mea culpa” communication to your soon-to-be adversary is a common mistake that parties make. In an effort to try to work things out, parties sometimes will admit some level of fault with respect to the dispute. The “mea culpa” will certainly be used against you in a future litigation and should be avoided.
9. Understand the attorney/client privilege.
In most instances, communications between an attorney and a client are privileged. This means that this information typically will not be subject to discovery and will not have to be shown to the other side. Before relying on this privilege, it’s important to understand its components. Communications between an attorney and client where there is a third-party present are not subject to the attorney/ client privilege. This means that these communications may be subject to discovery requests by your adversary. Additionally, written communications between an attorney and a client that are later shown to third-parties outside of the attorney/client relationship will also have to be turned over to the other side. Once privileged communications are given to someone that is not within the privilege, the attorney/client privilege is waived. There are many other nuances to the attorney/client privilege that should be understood in determining those documents and communications that may be protected and those that are subject to discovery.
6. No “nasty-grams.”
The opposite of the “mea culpa” is where you make aggressive statements against the party with whom you are having the dispute. Although it is understandably difficult to control your emotions during a business dispute, it is important to keep the dialogue as civil as possible. Unlike fine wine, name calling and foul language are two things that do not age well. Months or years later, when the offending document is put into evidence at a trial, you will regret coming across as uncivil (even if the other side deserved it).
7. No self-serving internal memoranda.
Attempting to pepper a file with favorable documents usually fails. This mistake is made when parties realize a lawsuit is about to commence and start drafting selfserving documents that the parties believe will be used as evidence at a future trial. This rarely works. Indeed, often times these types of self-serving documents will backfire.
8. Try to lower the temperature.
10. Reach out to your attorney.
In order to try to avoid a dispute and come to some type of workable arrangement, try to take a step back. It’s far better to work out a dispute early than spend money on attorneys litigating a matter.
This is perhaps the most important advice. It’s never too soon to contact your attorney when you sense a business dispute is brewing. A quick communication with your trusted advisor to measure the equilibrium of the situation and plot out strategy is critical.
Register for Upcoming CLEs at CCBA! Visit www.pbi.org then go to CLE Catalog and search “West Chester”
New Matter | 29
www.chescobar.org And it’s no wonder. Law is an inherently adversarial profession, where we often have to deal with unreasonable clients, aggressive opposing counsel, and most of all, the pressure to win all the time. As one article I read suggested, surgeons have a lot of stress too, but when they go into the operating room, they’re not confronted by an opposing surgeon whose job it is to make sure they’re not successful. The causes of suicide are not always clear, but more than anything, suicide seems to be tied to clinical depression. Depression is an extraordinarily painful, yet little-understood, illness that’s often brought on by periods of prolonged stress (perhaps coupled with a genetic predisposition toward the disorder). Far from being just sadness or a low mood, depression is a medical disorder that changes the sufferer’s perceptions of the world. Feelings of inadequacy, profound sadness, hopelessness, and helplessness are common with clinical depression, as are other symptoms like lack of energy, loss of appetite, inability to get restful sleep, and in some cases, thoughts of suicide. According to a recent CNN.com article, lawyers are 3.6 times more likely to suffer from depression than non-lawyers.
AND CHESTER COUNTY LAWYERS By Barry Rabin, Esquire
f one were to make a list of the things that people least like to talk about, suicide would likely make the Top 10.
This is understandable, since the topic of someone taking one’s own life is about as unpleasant as anything most people can think of. And yet, as I have learned from my involvement with the Chester County Suicide Prevention Task Force, not talking about suicide is far more dangerous than bringing up the subject and trying to raise awareness about it.
30 | New Matter
All of which is extremely relevant to our lives as lawyers. While most of the Task Force’s efforts are focused on preventing suicide among young people, recent articles in The New York Times and The Wall Street Journal have chronicled a disturbing increase in the suicide rate among middle-aged Americans – mostly men – ages 45 to 64. These finding go along with an actual decline in the average life expectancy of middle-aged white men, a decline that one study attributed primarily to causes such as alcohol-related liver disease, drug abuse, and suicide. A great many of my lawyer friends and colleagues are in this demographic group. Lawyers, in fact, have one of the highest suicide rates of any profession (we are anywhere from first to fourth on the list, depending on whose statistics you’re looking at).
Besides the aforementioned lawyer stresses, economic stress can also be a factor in lawyer suicides. Like many other professions, there have been profound changes in the market for legal services in the past few decades. As a result, while some lawyers are earning hefty six-figure incomes, many others (including a great many excellent attorneys) are finding it difficult to make even what they were earning a decade ago. And grinding economic stress can easily light the fuse that sets off depression. The good news is that there are now many effective treatments for depression, ranging from “talk therapy” to medications to other, newer modalities. The bad news is that many people, including many lawyers, don’t get help for it. The reasons for not getting help are varied. They range from a lack of knowledge about the illness to a desire to avoid the social stigma of being diagnosed with a “mental illness” (as opposed to a more “socially-acceptable” illness like a heart attack, kidney failure or a stroke).
from stress-related conditions such as major depression, alcohol abuse or drug dependence. Their website (located at www.lclpa.org) even has a quick self-assessment tool that lets lawyers see if they might be suffering from clinical depression. Even more important, LCL’s confidential 24-hour hotline is available for lawyers, as well as their colleagues, friends, and family members, to call and find out about resources that can help the sufferer feel better again. Where indicated, LCL will refer an attorney to a professional in their area who will meet with them, listen to what they’ve been experiencing, and recommend appropriate treatment. LCL can also pair you up (if you want to) with one of their attorney volunteers who has been through what you’re going through, and can help guide you through the process of getting better. The best part is that LCL has been specifically exempted from disciplinary reporting by the Pennsylvania Supreme Court. This means that calls to them are not only completely confidential, they will not be reported to the Disciplinary Board, even if the caller’s conduct might be construed as running afoul of the attorney disciplinary rules. (They even have a spin-off program called “Judges Concerned for Judges,” which provides the same kind of assistance for members of the bench. Those long black robes, unfortunately, don’t make a person immune to stress-related problems.) So what can the rest of us do? First, we can listen to our friends and colleagues for signs that they are stressed or suffering. Nobody walks around town with a sign that says that they’re seriously depressed. But people often do say things that are tip-offs that things aren’t going well for them. We all need to listen harder for these things, and be ready to reach out with a compassionate ear to those around us who are experiencing unseen pain and depression. If it sounds like someone is in a state of severe depression, the main objective should be to listen, question them about it, and then persuade them to seek appropriate professional diagnosis and help. Continued on page 32
As a result, sadly, some of our colleagues would rather end their lives than go get help. So what can we do about this? For those who are suffering, there are excellent resources available. In Pennsylvania, an organization called Lawyers Concerned for Lawyers (LCL for short) provides free, totally confidential advice and referrals for lawyers who are suffering New Matter | 31
CCBA Feature Continued from page 31 One surprising thing I learned from taking a local suicide prevention course is that, contrary to what most of us would guess, you should bring up the subject of suicide if someone close to you admits to feeling severely depressed. Asking whether a person is thinking about suicide is more likely to draw out any thoughts they may be having about it – and tip you off that they need to get professional help immediately – than to give them the idea to do it. In addition to listening to what people are saying, we also need to be looking out for friends and colleagues who are not saying things. People suffering from depression often become withdrawn socially, and may be unable to enjoy the kind of social activities and events they once did. Doing this may be especially challenging for men, since women as a group seem to be better at sensing emotional changes in those around them than men do. Also, many men in our society have been conditioned not to complain when something is bothering them, which can be a huge impediment to reaching out and getting help. Suicide has been referred to as a “permanent solution to a temporary problem.” The problem is, for those who are suffering from severe depression, their problems may not feel so temporary. It’s up to the rest of us to try to reach out and get our valued lawyer friends and colleagues to see that there is light at the end of the dark tunnel. I have always found Chester County Bar Association members to be extraordinarily warm and caring people, especially when one of our own is going through difficult times. There is no doubt in my mind that we are up to the task. For more information on Lawyers Concerned for Lawyers, check out their website at www.lclpa.org. Or call them toll-free at (888) 999-1941.
When Disaster Strikes, OneEvents Call Can Make All the Difference Upcoming
C H E S T E R C O U N T Y B A R A S S O C I AT I O N
For more details on all upcoming meetings and events, go to: www.chescobar.org/events
By Ira L. Straff
Your client is on the phone… There’s been a devastating fire, and they don’t know what to do. Or maybe it’s damage from a structural collapse, a storm, ice and snow, a burst water pipe, or some other cause. Whatever the disaster, they’re November 24.....................Happy Thanksgiving! turning to you for advice.
Under the weight of snow and ice, roofs can collapse, gutters can pull free, and trees can break and fall, damaging the roof, walls, ceilings, floors, and furniture. Less visible, ice dams can cause water to seep through roofing material and damage a building’s interior.
The first thing they have to know is that A lightning strike can cause a fire, every second counts: they need an expert leading to smoke and water damage and at the site immediately! Damage needs to additional related losses. Lightning can December 1........................ CCBA & beMemorial assessed Service and documented properly. also travel through the electrical system Annual Meeting; Chester County and fixtures, causing extensive damage to Public adjusters are coverage experts who Historic Courthouse electronics, appliances and the property’s work for you and your client—not for December 7........................ B.U.L.L. Session; 5:30 PM; physical structure. the insurance company. As part of your CCBA Lower Level team, they can offer As John A. Koury, Jr., December 8........................ Sip guidance & Shred; Levante “The ‘adjuster link’ O’Donnell, Weiss & Mattei, and assistance Brewery; 4-6 PM damages in assessing Phoenixville observes: in the claim process P.C. and Happy preparing insurance “The ‘adjuster link’ in the December 15..................... Holiday Hour; Side truly makes a forms and claim process truly makes a Bar claim & Restaurant, 5 PMsupport documentation. Advice huge difference in both the huge difference… from a public adjuster scope and the amount of for the client.” can ensure that correct the recovery for the client. decisions are being A Public Adjuster knows John A. Koury, Jr., Esq. January 4............................. B.U.L.L. Session; made, which5:30 canPM; help to from experience the terms Phoenixville CCBA Lower Level and conditions attaching to maximize your client’s January 13........................... President’s Dinner; the claim procedure as set forth in most recovery. Aronimink Golf Club property insurance policies, and provides Here are some important issues that a valuable assistance to the attorney in January 16...........................Martin Luther King Day public adjuster can resolve: interpreting the scope of coverage and When fire and smoke or other disasters in projecting realistic expectations for strike, insurance company adjusters are recovery.” trained to keep settlements to a minimum. Most people don’t realize how difficult As a result, the actual cost to repair the February 1........................... B.U.L.L. Session; 5:30 PM; damaged property can be higher than the and time-consuming the claims process can be, especially if you’re not there CCBA Lower Level insurance company’s estimate, often by on the front line yourself. It’s always thousands of dollars. February 2........................... Stively Inn of Court Dinner better to be proactive and preemptive— Presentation; The Mansion Several types of stormatdamage are by immediately retaining a reputable, Radley Run or Country Clubfrom many insurance limited excluded knowledgeable public adjuster. policies. An investigation of the cause and Your clients will thank you for it. a thorough analysis of your coverage can make a big difference in the recovery.
The source of water damage is just as important as the extent of the damage. Many policies exclude some types of water damage: burst, frozen or blocked pipes; faulty appliances; sewage; even rainwater might not be covered. Public adjusters can decipher the fine print.
Annual President’s Dinner Honoring William T. Wilson, Esq.
Friday, January 13, 2017 32 | New Matter
By Ira L. Straff Your client is on the phone… There’s been a devastating fire, and they don’t know what to do. Or maybe it’s damage from a structural collapse, a storm, ice and snow, a burst water pipe, or some other cause. Whatever the disaster, they’re turning to you for advice.
Under the weight of snow and ice, roofs can collapse, gutters can pull free, and trees can break and fall, damaging the roof, walls, ceilings, floors, and furniture. Less visible, ice dams can cause water to seep through roofing material and damage a building’s interior.
The first thing they have to know is that every second counts: they need an expert at the site immediately! Damage needs to be assessed and documented properly.
A lightning strike can cause a fire, leading to smoke and water damage and additional related losses. Lightning can also travel through the electrical system and fixtures, causing extensive damage to electronics, appliances and the property’s physical structure.
Public adjusters are coverage experts who work for you and your client—not for the insurance company. As part of your team, they can offer As John A. Koury, Jr., “The ‘adjuster link’ O’Donnell, Weiss & Mattei, guidance and assistance in assessing damages Phoenixville observes: in the claim process P.C. and preparing insurance “The ‘adjuster link’ in the truly makes a claim forms and support claim process truly makes a documentation. Advice huge difference in both the huge difference… from a public adjuster scope and the amount of for the client.” can ensure that correct the recovery for the client. decisions are being A Public Adjuster knows John A. Koury, Jr., Esq. made, which can help to from experience the terms Phoenixville and conditions attaching to maximize your client’s the claim procedure as set forth in most recovery. property insurance policies, and provides Here are some important issues that a valuable assistance to the attorney in public adjuster can resolve: interpreting the scope of coverage and When fire and smoke or other disasters in projecting realistic expectations for strike, insurance company adjusters are recovery.” trained to keep settlements to a minimum. Most people don’t realize how difficult As a result, the actual cost to repair the damaged property can be higher than the and time-consuming the claims process can be, especially if you’re not there insurance company’s estimate, often by on the front line yourself. It’s always thousands of dollars. better to be proactive and preemptive— Several types of storm damage are by immediately retaining a reputable, limited or excluded from many insurance knowledgeable public adjuster. policies. An investigation of the cause and Your clients will thank you for it. a thorough analysis of your coverage can make a big difference in the recovery. The source of water damage is just as important as the extent of the damage. Many policies exclude some types of water damage: burst, frozen or blocked pipes; faulty appliances; sewage; even rainwater might not be covered. Public adjusters can decipher the fine print.
SAVE THE DATE
AT ARONIMINK GOLF CLUB
When Disaster Strikes, One Call Can Make All the Difference
Ira L. Straff is principal partner of IAB, the Insurance Adjustment Bureau, Inc., public adjusters located in Bala Cynwyd and in business since 1964.
© 2016 Insurance Adjustment Bureau, Inc.
New Matter 33 © 2016 Insurance Adjustment Bureau,|Inc.
Featured Member Profile
In the Community
Featured CCBA Member: Steven Soles, Esquire TFS Capital LLC • 610-719-8380 • email@example.com CCBA Member Since 2011 Where do I live? West Whiteland Township. I have been on the Board of Supervisors there for nearly 7 years. My first job. West Coast Video What word best describes me? Pragmatic Where can you find me on a Saturday afternoon? Playing with my 15-monthold son Carter. My favorite way to spend free time? Listening to music. My greatest extravagance? Concert tickets.
My favorite vacation destination. Avalon. NJ. It’s where I met my wife.
Little known fact about me: I drove in a Presidential motorcade.
The person I’m most interested in meeting: I would love to sit down and talk about music with Dave Grohl.
My favorite websites: Wall Street Journal and Sports Illustrated.
My favorite tv shows: Anything on the History or Smithsonian channel and the Goldbergs. Goals yet to be achieved: Publish an article in the Energy Law Journal.
What would I be if I wasn’t a lawyer: A roadie for Metallica. What I like most about the CCBA: The closeness of the bar. As an in-house lawyer, I especially enjoy being a sounding board on corporate and transactional law issues with my CCBA colleagues who are in private practice.
In Memoriam C. Richard Morton, Esquire 1929-2016 34 | New Matter
By Elizabeth Fritsch, Esquire Executive Director, Legal Aid of Southeastern Pennsylvania
My favorite food: Margherita pizza. Last Book I read: Flash Boys by Michael Lewis.
Legal Aid of Southeastern Pennsylvania CELEBRATES ITS PARTNERSHIP with Maternal Child Health Consortium of Chester County
Stephen J. Busterna, Esquire 1957-2016
Joseph R. Polito, Esquire 1939-2016
t’s been one year since Legal Aid of Southeastern PA (LASP) began a partnership with the Maternal Child Health Consortium of Chester County to open an outreach site at the Coatesville Center for Community Health. And in those twelve months we’ve seen again and again why legal aid is so important in this county. We’ve heard stories of housing crises, listened to single mothers worried about supporting their children, and witnessed the desperation that too many of our neighbors feel. Since that first day we opened in September 2015, one of LASP’s most experienced, bilingual paralegals has tackled questions in all sorts of civil legal areas including landlordtenant matters, immigration, wage claims, child support, and custody. We’ve been able to provide real solutions for people like H*, whose serious health issues were exacerbated by a severe bed bug infestation in his public housing apartment. After complaining to the management office numerous times with no response, he decided to stop payment of rent which resulted in an eviction notice. That’s when H came to our Coatesville outreach for help. His LASP advocate gave him information about how to set up a proper escrow account and urged him to pay his rent immediately. The advocate also advised him to send his landlord a notice that he would be withholding rent if the problem was not addressed before the next rent period. By the following month, the problem was resolved. The bedbugs were eliminated and H remained securely in his apartment. To date, about 60 Coatesville residents have visited the outreach office to learn about ways to address their particular legal concerns. Every Wednesday from 2:00 p.m. to 3:30 p.m our paralegal checks eligibility for LASP, suggests solutions
for particular problems, and makes referrals to LASP or other agencies or resources for further action. “When the opportunity to host LASP in Coatesville was suggested, we immediately jumped on it,” said Alain Oliver, Executive Director of the Maternal and Child Health Consortium of Chester County. “MCHC has been a pillar in the Coatesville community for over 15 years and our organizations share a long history. LASP is often the last line of defense for many in our community; so, by sharing our office with LASP we can provide our community with convenient access to life-changing legal services. We could not be happier with this partnership.” As a result of our Coatesville outreach, we opened about 10 cases and sent them to our West Chester office for extended services. We referred about 7 people to the Chester County Bar Association Access to Justice Program, and were able to give people contact information for the Lawyer Referral Services of Chester County and various other legal or social service agencies. Many of our Latino neighbors in Coatesville were able to discuss their issues in Spanish with us, and those seeking to change their immigration status were referred to the Bar Association, Catholic Social Services, and other immigration programs in the Philadelphia metropolitan area. With the addition of LASP’s newest outreach sites in Kennett Square at the Kennett Area Community Service Resource Center on the third Monday of every month, and at Phoenxiville Area Community Services on the first Friday of every month, Chester County residents now have even greater and more convenient access to high quality and free legal services. For information about any of our Chester County outreach sites, please contact our West Chester Office at 610-436-4510. *Initial used to protect client’s privacy. New Matter | 35