New Matter
THE AWARD WINNING PUBLICATION OF THE CHESTER COUNTY BAR ASSOCIATION • CHESTER COUNTY, PA | www.chescobar.org
4th Quarter 2023
In This Issue...
Smedley Butler: West Chester’s Fighting Quaker Counterinsurgent Page 6
2023 Chester County Softball League Page 10
Race and Admissions in Higher Education: The Latest Word Page 14
Leadership Lessons from the Golf Course and the CCBA-GWCCC Golf League Page 18
Press Release – October 15, 2023
O’Donnell, Weiss & Mattei, P.C. Announces New Shareholder, Joseph K. Koury, and the addition of Stephen I. Baer, Esquire to the Firm The law firm of O’Donnell, Weiss & Mattei, P.C. is very pleased to announce that Joseph K. Koury, Esquire has been named a Principal of the firm effective July 1, 2023. Attorney Koury joined OWM’s Business Department in 2007. He received his undergraduate degree from Dickinson College with a Bachelor of Arts in English, and his Law Degree from Widener University School of Law in Delaware. Mr. Koury also received his LL.M. in Taxation from Villanova University School of Law. He was admitted to the Pennsylvania Bar in 2002.
Joseph K. Koury
As Co-Chair of OWM Law's Business Law Practice Group he advises a broad spectrum of corporate clients and businesses in a variety of matters, including mergers and acquisitions, joint ventures, affiliations and tax structures. He also practices in commercial and residential real estate and he possesses experience in commercial litigation.
Attorney Koury is a tremendous asset to the Firm, and the Firm is pleased to recognize him in this way, and very enthusiastic about his commitment to the future of OWM and his continued growth and participation in management of the practice.
Joseph K. Koury
Stephen I. Baer
O’Donnell, Weiss & Mattei, P.C. is also very pleased to announce that Stephen I. Baer, Esquire has joined the Firm as of October 1, 2023. Attorney Baer has been practicing law in Phoenixville, Chester County and surrounding areas for more than 40 years. Stephen concentrates his practice in the areas of criminal law, estate planning, estate administration, mediation and family law. He began his law career as an Assistant District Attorney with the Chester County District Attorney’s office and established his law practice, Baer Romain, shortly thereafter. After a long and successful run with Baer Romain & Ginty LLP, Stephen has decided to make the transition to OWM to continue his practice and to provide a wider array of services to his clients and add significant depth to his practice areas. The members of OWM Law and Stephen Baer share the same values and are confident this combination will provide an environment which will benefit clients and will allow the tradition of excellent service to continue.
The Shareholders of OWM Law believe ‘the addition of Stephen Baer enhances the services offered to our clients. It is a natural fit.’ The lawyers and staff of OWM Law look forward to welcoming the clients of Stephen Baer. O’Donnell, Weiss & Mattei, P.C. has been serving the Tri-County area for more than 60 years. In addition to the Pottstown office which has been operating since 1955, the firm established its Phoenixville office in 2006. The firm currently has 14 attorneys who work in client service teams which focus in five central practice areas: Elder Law/Estate Administration/Estate Planning/Special Needs Planning, Business Planning/Banking, Family Law/Divorce/Custody, Accidents/Criminal/DUI/Personal Injury, and Real Estate/Title/Land Use. In addition, several OWM attorneys are also licensed title agents who regularly conduct residential and commercial real estate settlements.
Pottstown Office 41 E. High St. Pottstown, PA 19464 (610) 323-2800
Phoenixville Office 347 Bridge St., Suite 200 Phoenixville, PA 19460 (610) 917-9347
Content
New Matter
4TH QUARTER 2023
FEATURES Smedley Butler: West Chester’s Fighting Quaker Counterinsurgent ...................................6
Brian L. Nagle, President
2023 Chester County Softball League......................................10
Donald B. Lynn Jr., Vice President
2023 Fall Bench Bar Conference.......16
James Doyle, Treasure Catherine H. Voit, Secretary
Chester County Bar Foundation Key Fellows Recognition.....................20
New Matter Committee
CCBA New Members List....................21
CCBA Officers
Maria Janoski, Editor
IN EVERY ISSUE
Rami Bishay Mark Blank, Jr.
President’s Message.................................4
Charles T. DeTulleo Shannon McDonald John McKenna Mary Wade Myers
22
First World Problems............................. 12
New Matter
THE AWARD WINNING
PUBLICAT ION OF
THE CHESTER COUNTY
Sara Planthaber
In This Issue...
Karyn L. Seace
ty 2023 Chester Coun Softball League
BAR ASSOCIAT ION
Chester’s Smedley Butler: Westterinsurgent Fighting Quaker Coun Page 6
• CHESTER COUNTY,
PA | www.ches cobar.org
4th Quarte r 2023
CCBA Bar Tab............................................ 13
in Race and Admissions Higher Education: The Latest Word
Page 14
ns from Leadership Lesso the the Golf Course and e Leagu CCBA-GWCCC Golf Page 18
Page 10
The Blank Page........................................ 14 From the Desk of the Executive Director.........................18
Scott Slomowitz
Did You Ever Wonder?.......................... 22
Bill Wilson
Save Our Environment......................... 28
CCBA Staff Greg Nardi Executive Director Melissa Willson Communications, Events, and Marketing Manager 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, functions, practice tips, procedures for attorneys, and items of personal interest to our membership. 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. All rights reserved. No portion of this publication may be reproduced electronically or in print without the expressed written permission of the publisher or editor.
Cover photo taken by Meredith Barr. The Blacksmith Shop, located in Marshallton.
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President’s Message
Brian L. Nagle, Esquire President Chester County Bar Association
E
ighty-nine and counting. I wonder what the first President of this Association would say if he saw us now. As my year as the 89th President draws to a close, I can’t help but think he would be filled with a sense of pride and satisfaction at how those members who came after him through the years grew the Association into a community of individuals dedicated to the betterment of their profession and support of the people they serve. From the moment I embarked upon my role as President, I did so knowing that I was assuming a significant responsibility to continue the work and dedication of those who came before me. Allow me to now thank you all for the incredibly rewarding experience of serving as the President of our esteemed Bar Association. Our Bar Association has always been a pillar of strength and support for our legal community, and this year has been no exception. Our members, who have served so faithfully on our Board and our many sections and committees, worked with energy and commitment to continue to build momentum out of some lingering COVID inertia; and, they deserve our thanks. We have not only continued our tradition of offering valuable resources and networking opportunities for our members, but we have also introduced innovative events and initiatives that have brought us closer together as an Association. For example, the Christmas in July Happy Hour started by the Young Lawyer’s Division has become a great Summer tradition, as has our Springtime Job Fair, which will be an annual event that serves to financially aid our legal community in the years to come. The Bench Bar Conference in Cambridge, Maryland – an event that epitomizes the unity and dedication of our members – was one of the highlights of this year, as all who
4 | New Matter
attended will attest. The Conference’s first event is always the Past-Presidents' Dinner, which all those who have served before me look forward to each year, as now will I. Saturday, the Conference’s final day, witnessed a lively crowd at 8 A.M. join in the Judge’s Panel for the innovative, educational and highly entertaining experience, “Legal Jeopardy,” immensely enjoyed by one and all. What a great idea! The Spring Bench Bar Conference, which preceded it, continues to be an outstanding close-to-home forum popular with a large number of our members. Together, they gave us the opportunity to experience a broad range of topics, from emerging legal technologies to changes in legislation, as well as practice-area specific seminars, all aimed at keeping our members at the forefront of their respective fields. The enthusiasm and participation at these events have been incredible, and it’s clear that our members are eager to stay current and excel in their practices. Still to come this year are our Annual Meeting and the ever-popular Holiday Happy Hour. At the Annual Meeting the membership will consider a proposed ByLaws amendment that aims to strengthen our Judicial Plebiscite process. Also, importantly, please plan to attend one of the most solemn and honored traditions of our Association, our annual Memorial Service at 3:00 p.m. As your President, I’m proud of the initiatives we’ve undertaken to give back to our community. Our Access to Justice Program has continued to provide Pro Bono legal services to those in need, ensuring that the most vulnerable in our society have access to justice. It’s a reminder of our responsibility as legal professionals to serve the greater good and ensure that justice is not just a privilege for a select few, but a right for all. Many thanks to our active and enthusiastic Pro Bono Committee and to Judge Binder for hosting an excellent celebration of our members’ commitment to these efforts. Looking back on this year, I’m struck by the energy, dedication, and passion that our members have brought to every event and initiative. The enthusiasm for our profession is palpable, and it’s a testament to the incredible community of which we are a part. Together, we’ve
achieved so much, and I’m eager to see where our journey takes us in the year ahead. A special thanks to our Executive Director, to our incredible Bar Association Staff and to those of you who have offered me extra help, support, and leadership where needed throughout the year. I want also to express my gratitude to each and every member of our Bar Association. I also will report here that the state of our leadership is strong. The Boards of the Association and the Foundation are filled with strong, enthusiastic members who will continue to represent us well. I am looking forward to passing the gavel on to Don Lynn and I know he is poised to do an outstanding job as President. We have much to build on and a lot to look forward to as members of one of the very best bar associations anywhere.
610-429-4020 | christinephennigan.com
115 Westtown Road, Suite 202, West Chester, PA Registered Representative of, and Securities and Investment Advisory services are offered through Hornor, Townsend & Kent, LLC (HTK), Registered Investment Advisor, Member FINRA/SIPC, 600 Dresher Road, Suite C1C, Horsham, PA 19044, 800-225-7637. HTK does not provide legal and tax advice. Always consult a qualified tax advisor regarding your personal tax situation and a qualified legal professional for your personal estate planning situation. Insurance licensed and Securities registered in the resident state of: Pennsylvania, as well as DE, FL, MD, MA, NJ, NC, OR, PA, VT. This is not an offer or solicitation in any state(s) where not properly licensed and/or registered. For registration or licensing information, please contact me at my office at (610) 429-4020. 3002022RB_Apr22
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New Matter | 5
CCBA Feature
Smedley Butler:
West Chester’s Fighting Quaker Counterinsurgent By Mark Ashton, Esq.
H
istorians are in a pickle today. No one seems to agree on history and classrooms have become battlegrounds over what is true and what is “woke.” History used to be much easier. In my elementary school days it could all be charted: GOOD GUYS BAD GUYS Washington Benedict Arnold Jefferson Jefferson Davis J. Edgar Hoover Joe McCarthy Then in high school, I took AP history and things got more complicated. Washington had slaves. Jefferson seems to have slept with some of his. And Hoover fell right out of bed from icon to villain within just a couple of years. So, history is complex and if you want to meet the poster child for erratic behavior Jonathan Katz has written a 338-page biography of one of West Chester’s most famous characters; Smedley Butler. The Butlers are among Chester County’s “first families”; educated, refined, affluent Quakers who made this obscure tavern stop into a fine country town by 1840. Thomas Butler was a lawyer and then judge in Chester County who was elected to the U.S. House of Representatives. His wife Maud was a Darlington, which is about as high on the social ladder as Chester County allows. Just after their son Smedley was born in 1881, his grandfather ran for governor. When he was eight his father became a Chester County judge and by the time Smedley was finishing high school, his father had been elected to Congress. Life was good. Smedley was captain of the Haverford School baseball and football teams.
6 | New Matter
But Smedley never finished high school. When the wicked Spanish had the audacity to blow up the U.S.S. Maine in Havana harbor on February 15, 1898, he marched into a recruiter’s office to join the fight. His problem was he was only 17. So, Smedley went to another recruiting office and told them he was 18. The military of 1898 was rather thinly populated so despite his youth, his academic and social pedigree got him commissioned as a 2nd Lieutenant from the start. Butler was sent to Guantanamo Bay in July and the war was over by August so back he came to America. But he liked the military and so he re-upped and was made a 1st Lieutenant assigned to help occupy America’s newest acquisition, the Philippines. The overthrow of the Spanish had prompted a fight for control and the natives were decidedly not in favor of seeing America succeed as colonial rulers. Butler got his first taste of combat and after a moment of hesitation, found he loved it. He was then assigned to another Spanish colony, Guam, but that mission was diverted by China’s Boxer Rebellion of 1900. There he was involved in a battle just outside Beijing (Tianjin) where Butler was shot but insisted on fighting and hauling fellow wounded Marines out of the battle. For this he was awarded a brevet medal, as commissioned
www.chescobar.org officers were ineligible to receive the Medal of Honor. Butler was next sent back to the Caribbean. Between 1900 and 1935 American business, at the behest of its leading New York banks and law firms, decided to get into the fruit and sugar business in a big way. And when governments in Nicaragua, Haiti, Cuba and the Dominican Republic resisted these plans, the Marine Corps and Butler were dispatched to enforce America’s will. The legal history of this was covered in John Oller’s 2019 history of Wall Street law firms White Shoe (Dutton). In 1903 Butler was sent to Honduras to defend the U.S. consulate. The locals wisely choose to avoid a confrontation and there was no resistance to the Marines getting their counsel out of the country before resuming their civil war. In 1905 Butler returned to the U.S. where he courted and married a Philadelphia belle, Ethel “Bunny” Peters. These are the Peters who owned Belmont Mansion in Fairmount Park and Peters Island that sits in the Schuylkill River. They seemed quite the match as Bunny was an adventurer in her own right who relishes the chance to live in places occupied by insects and insurrectionists. It’s where Marine families go when New York banks can’t collect debts from the locals. After a brief stint back in the Philippines where he suffered a nervous breakdown; then a year managing a West Virginia coal mine, Butler was back in the Marine Corps and on his way to Nicaragua where he served from 19091912 and helps to “liberate” the Panama Canal. Through all of this he corresponds with his wife and parents employing the Quaker “thee and thy” before turning to some salty assessments of the purpose of the operations and the darkly complected natives. He told Mother Maud that he was doing the bidding of “wildcat” investors whose own goals were “rotten to the core.” But he loved to fight and here was his chance. While living comfortably in what was the United States Canal Zone in Panama, trouble arose in Mexico. There were oil and railroad interests to protect so Butler was dispatched by sea to Veracruz and then loaded onto a private train car to develop a plan to capture Mexico City, if needed. A month later in April 1914 the U.S. occupied Veracruz with 5,800 troops when it heard that weapons were being shipped there. That would last seven months and Smedley would garner a Medal of Honor for his service. In 1915 Haiti’s government fell and Butler was sent to “pacify” the rebellion and protect U.S. sugar interests. This is perhaps the most interesting tale in the book. Butler really has no time for the Haitians and learned
the neighboring Dominicans harbor similar views. But Butler and Bunny play along, entertaining the local people installed to lead. And Butler is credited with founding what is today termed “counterinsurgency,” the business of winning the hearts and minds of locals as a means of keeping U.S. forces safe. His letters to mom and dad reveal his real views about people of any color. And, on the ground his troops were subjected to ambush. Smedley runs toward these engagements and got a second Medal of Honor. While Butler and Bunny were in Haiti the Lusitania was sunk and the Germans made a play for Mexico to attack the United States. When President Wilson did declare war in August 1917 Butler lobbied to get into the fight, but he was needed to keep Haiti under U.S. control. When he finally did get to France he was 37 and a bit old for the combat he sought but his work organizing the deployment of arriving U.S. troops was trendsetting and won numerous commendations. The war ended in November 1918 and Butler’s organization skills led him to be put in charge of the staging camp in Quantico, Virginia. Under his administration this camp became the permanent home of Continued on page 8
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New Matter | 7
CCBA Feature Continued from page 7
the itinerant Marine Corps and the stadium there today bears his name. In 1924 with Prohibition crime running rampant, Philadelphia’s mayor Freeland Kendrick asked Butler to become Director of Public Safety. This may be the most amusing part of the book as Butler assumed running Philly’s police department was similar to governing Haiti. The cops were armed to the teeth and told to do whatever was needed to stop crime, constitutional niceties be damned. Most shocking to his social register friends was his willingness to conduct bootleg raids on places like the Union League and Ritz-Carlton Hotel. Suffice to say, after a year, he was told his service was no longer required. Butler said cleaning up Philadelphia was more arduous than any battle he had been in. From 1926-1931 now Major General Butler bounced around. He was assigned to San Diego and was briefly sent back to Tianjin, China. But there he made comments about Benito Mussolini that got him in trouble. There was a run at becoming Commandant of the Marines but Butler was seen as an effective soldier but a loose cannon on the diplomacy side. He retired in 1931 and helped organize the Oregon state police. He lectured widely, donating his fees to poor relief. In 1932 he took a shot at the U.S. Senate seat in Pennsylvania but lost the primary. It is at this point that the revised edition of Smedley Butler emerges. In the Summer of 1932, having lost the primary, Butler traveled to Washington where 42,000 people had gathered, demanding the government do something about the Depression. Several thousand veterans remained camped around the Capitol, lobbying to receive a bonus associated with their service that was not technically due until 1945. Butler walked the camps and supported the troops. The most honored soldier in the Marine Corps told these men they deserved their money and that they were exploited. In July General MacArthur arrived and destroyed the camps, gassing the men who occupied them. Butler had purchased a home in Newtown Square in 1931. There he wrote his famous book War is a Racket in which he laid out how his army service had little to do with serving his country but supporting wealthy bankers, lawyers and their “wildcat” friends. While writing his book, Butler claimed to have been contacted by these same moneyed interests (including Irenee DuPont) about a plan to overthrow the “socialist” Roosevelt Administration and install a substitute government. He went to Washington and testified about this. Congress was not impressed and some historians believe Butler’s theory was his contrived fantasy. Having created an uproar with his attack on
America’s ruling class, Butler found himself dismissed by his affluent and educated Republican friends. He died in 1940 and was interred at the Oaklands Cemetery north of West Chester, where all worthy Cestrians are laid to rest. The book is a quick and satisfying read. At first I was put off by the author’s device of re-visiting Butler’s international assignments in the 21st century to see what had become of these countries. But the more I read, I grew to like learning what modern Asia and Central America do to remember some of America’s first imperialist days. I am not certain to what degree the current instability of Nicaragua and Haiti have to do with our “interventions” of the past. But it seems clear that when we do get involved in these conflicts little lasting good comes out of it even when we do impose our will in the name of “order.” Butler is a character. He loved leading men in combat and had extraordinary organizational skills. Alas, he is also a reminder of how in his day, people like Rudyard Kipling could view the Philippine conflict as one where intervention and occupation were termed the “White Man’s Burden.” People like Kipling and Butler lived in a world where whites were inherently superior and destined to rule for the benefit of all. We know how that has turned out. Gangsters of Capitalism; Smedley Butler…..and the Breaking of America’s Empire Jonathan Katz St. Martin’s Press 2021
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New Matter | 9
CCBA Feature
2023 Chester County
S ftball League
Action Shot Photos taken by Rachel Houseman.
By Jordan Jackson Intern at Legal Aid of Southeastern PA
T
his summer, Chester County employees and local attorneys took their disputes out of the courtroom and faced off on the ballfield for a fun-filled summer of slow-pitch softball! Office staff and family members alike came to West Chester’s Greenfield Park on Wednesdays to hang up the work shoes and put on some cleats in the spirit of friendly competition. The 2023 Chester County Softball League consisted of four rival teams: the District Attorney’s Office, the Prothonotary’s Office, the Bar Association and finally the “Rocket Frogs” (a combination of the Public Defender’s Office, Adult and Juvenile Probation Offices and the Legal Aid of Southeastern Pennsylvania). No matter the level of softball experience, all came out swinging and cheered on their fellow county employees in a set of five exhibition games over the course of June, July and August. As the regular season came to a close in September, the trial of playoffs began. The Bar Association took the #1 seed spot and faced off against the #4 Prothonotary’s Office in the semi-finals. Despite a hard fought season, the sentencing ruled that the #1 Bar Association would move on to the Championship series following a run-rule victory. On the other side of the bracket, the #2 Rocket Frogs came out on top against the #3 District Attorney’s Office after a season full of close games. The following week, the case of Bar 10 | New Matter
Association v. Rocket Frogs was under way to begin the Championship face-off, and the Frogs rocketed ahead to take Game 1. This lead did not last long as the Bar Association dominated in Game 2 to level the scales and force a Game 3. The final Championship match-up took place under the lights, and in a whirlwind comeback following a full-team effort, the final verdict resulted in the Rocket Frogs taking home the Championship title. Thomas Grant, the 2023 commissioner of the Chester County Softball League, called this year a “pretty successful season” and hopes to see the number of teams increase in the coming years. Grant joined the league in 2019 as part of the Bar Association team, but they struggled to rally numbers again in 2022 after the pandemic. “This year, we were thrilled to have the Prothonotary join the league, and I think having a fourth team was a great step,” said the league commissioner, with hopes to “ideally get to 6 teams for next season, and hopefully 8 soon after.” He added that “the league is open to any and all county departments that have interest, or even just a few people that want to play.” This year’s Champions represented several different Chester County offices and had a great deal of fun joining together on the field, so anyone interested in adding or merging with a team is encouraged to reach out to Thomas Grant. All are welcome to join next summer’s lively proceedings on the softball field to compete for the championship title, or enjoy a leisurely game after work. You won’t want to miss out!
www.chescobar.org
“Rocket Frogs” Team Photo taken by Rachel Houseman
“Rocket Frogs” and Bar Association Team post-Championship games taken by Rachel Houseman
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First World Problems… A quarterly column from the CCBA Staff
A
h, the office parking lot – a seemingly innocent expanse of pavement that transforms into a battleground of wits and vehicular diplomacy every morning. Enter the world of Parking Predicaments, where finding a spot becomes a game of strategy, stealth, and the occasional fender-bender. Those who navigate the Chestnut Street Garage or one of the other garages, streets or lots in our county know this well. Navigating the perilous realm of office parking involves an intricate dance of timing and territorial prowess, especially in West Chester. The unspoken rules of ‘first-come, first-served’ are complicated by unofficially reserved spots, the hierarchy of car models, and the dreaded ‘cone method’ used to mark potential spaces. The battle often begins with the slow, suspenseful drive through the parking lot, eyes darting between taillights and reverse lights like a high-stakes game of roulette. And just when you spot a potential space, a fellow commuter swoops in like a hawk, leaving you both locked in a parking stand-off that could rival any Wild West showdown. For those in the infamous West Chester parking garages, you know the thrill of seeing what appears to be a newly vacated spot right near the elevator only to have those hopes dashed when you realize you have
12 | New Matter
become the latest victim of the ‘small car psych-out’ (usually by that silly looking Mini owned by DP Dough!). Should you dare to park in a spot that’s a tad too close to another car, you risk triggering a passive-aggressive game of vehicular Tetris, wherein drivers shuffle their cars to optimize space, even if it means defying the laws of physics. Mirrors are retracted, bumpers are tapped (gently, of course), and all the while, a symphony of honks and grumbles serenades the morning air – or maybe just a dirty look or two. Yet, let’s not forget the legends of those who master the art of parallel parking in impossibly tight spaces, earning the admiration and envy of their colleagues. They maneuver with the grace of a ballerina, and their skills are celebrated as the eighth wonder of the modern world. In the grand tapestry of life, these parking predicaments might seem minuscule, but they form a shared experience that unites the workforce and a Bar Association. As you navigate the maze of cars and camaraderie, remember that in the end, it’s not just about parking – it’s about weaving your own story in the mosaic of office life. And it gives you something to talk about at the next Bar Association event!
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New personal and professional updates
Gawthrop Greenwood, PC Merges with Steven L. Sugarman & Associates to Form One of Largest Community Association Law Firms in Pennsylvania
Managing Partner Stacey L. Fuller Named President of West Chester Area Senior Center Gawthrop Greenwood attorney and managing partner STACEY L. FULLER has been named President of the Board of Directors for the West Chester Area Senior Center.
AMANDA AND TOM GRANT welcomed their daughter, Aisling Charlotte, this summer.
The law firm GAWTHROP GREENWOOD, PC is announcing a merger with renowned community association law firm STEVEN L. SUGARMAN & ASSOCIATES, forming one of the largest law firms supporting homeowners associations (HOAs), planned communities, condominium associations and cooperatives across Pennsylvania in the residential and commercial arenas.
SONAL PAREKH has joined LAMB McERLANE PC as an associate in its Health Law department. Sonal’s practice will include a broad range of healthcare regulatory-related issues and transactional matters on behalf of healthcare systems and practices, physicians, dentists and other healthcare providers.
Wisler Pearlstine Opens Chester County Office, Welcomes Five Long-time Chester County Lawyers to the Firm WISLER PEARLSTINE LLP, one of the region’s most prominent full-service law firms, is pleased to announce the opening of its new Malvern, Chester County, office effective September 1, 2023. Five new attorneys, who have practiced in Chester County for decades, have also joined the firm, including: ROBERT C.F. WILLSON, SCOTT E. YAW, SEAN A. O’NEILL, ANDREW H. DOHAN, and WENDY W. MCLEAN. The office is located at 460 East King Road, Malvern, Pennsylvania.
New Matter | 13
The Blank Page
Race and Admissions in Higher Education: The Latest Word By Mark Blank, Jr., Esquire
A
lthough it is the latest word, it most probably is not the last1. In Students For Fair Admissions, Inc. v. President and Fellows of Harvard College, the plaintiff challenged the admissions systems employed at Harvard and the University of North Carolina at Chapel Hill2. The question presented was a narrow one: Whether the admissions systems utilized by Harvard and the University of North Carolina at Chapel Hill (both of whom take race into consideration in their admissions procedures) are lawful under the Equal Protection Clause of the Fourteenth Amendment. The answer, in brief, is no. Before discussing Fellows of Harvard College, how about some history? If you are up for it, go for it, and read on. (As for me, I’m down.) Let us begin with DeFunis v. Odegaard, 416 U.S. 312 (1974). Marco DeFunis, Jr. applied for admission to the University of Washington Law School and was rejected. He claimed that minority applicants with grades and test scores inferior to his were admitted, whereas he, a Caucasian, was not. By the time that DeFunis v. Odegaard reached the SCOTUS, Mr. DeFunis was but one quarter away from graduation at another law school. The Court studiously evaded the issue by declaring the case moot3.
Justices Douglas, Brennan, White and Marshall dissented. The Dissent claimed that the case should not be considered moot, as the issue presented in its context was not,
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rendering the case justiciable4. Justice Douglas: “. . . Because of the significance of the issue raised [,] I think it is important to reach the merits.” Defunis v. Odegaard, 416 U.S. 312, 320 (Douglas, J., dissenting). In essence, the dissenters were of the view that there was an issue that needed to be addressed here and now (then and there), which rendered the question presented in the case ripe for disposition, regardless of the student status of plaintiff DeFunis. In fact, the dissenters were correct, at least from the practical standpoint; because four years later, the Court was confronted with the core case on race and admissions in higher education. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), Justice Powell announced the judgment of the Court plurality5 and held that there is an educational benefit that flows from a diverse “student body”; and that interest is a “constitutionally permissible goal for an institution of higher education.” Bakke, 311-312. Thus, creating a diverse classroom environment is a “compelling state interest” pursuant to the Fourteenth Amendment. Id. At least as of the time of this writing. United States Supreme Court, No. 20-1199. Argued October 31, 2022 Decided June 29, 2023. 3 See: United States Constitution, Article III; North Carolina v. Rice, 404 U.S. 244 (1971). 4 The Dissent cited Article III as well as United States v. Phosphate Export Association, 393 U.S. 119 (1968). 5 The opinion was as fragmented as Furman v. Georgia, 408 U.S. 238 (1972) six years earlier. 1
2
www.chescobar.org In short, race can be a consideration in a university’s admissions process. A university could not, however, employ a quota system reserving “a specified number of seats in each class from the preferred ethnic groups. Nor could it impose a multi-track program with a prescribed number of seats for each identifiable category of applicants.” Bakke, 3156.
racial stereotyping, and lack meaningful end points.” Fellows of Harvard College, 39.8
Twenty-five years passed until Grutter v. Bollinger, 539 U.S. 306 (2003), which involved admissions to the University of Michigan Law School. The plaintiff, Barbara Grutter, was a white Michigan resident who applied to the law school in 1996 with a grade point average of 3.8 and an LSAT score of 161. Her application was rejected. The Court, per Justice O’Connor, endorsed Justice Powell’s judgment for the Court in Bakke that student diversity is “a compelling state interest that can justify the use of race in university admissions,” Grutter, 325, consistent with Equal Protection, if the policy is narrowly tailored to the interest of promoting diversity, and if it employs a holistic approach as opposed to a quota system. With respect to the latter, a university may not “devise some specified percentage of a particular group merely because of its race or ethnic origin.” Id., 329-3307 .
The black letter is subject to the limitations as set forth by the SCOTUS. What will happen when the next case of this genre goes before the Court, we do not know. But I think that the attitude of the Majority at least gives us some ideas: “Deviation from the norm of equal treatment must be a temporary matter.” Fellows of Harvard College, 37; Grutter, 342.
In conclusion, the black letter law remains intact: (1) student diversity in higher education is a compelling state interest which justifies the use of race in university admissions; (2) quotas, or set-asides, however, cannot be employed in the process.
Grutter imposed “one final limit on race-based admissions programs. At some point they must end.” Fellows of Harvard College, supra, 21, citing Grutter, 342. Now, did Fellows of Harvard College do just that? No; well, not exactly. But there were some trimmings. Chief Justice Roberts spoke for the 6-3 Majority and held that the race-based admissions programs at Harvard and UNC overstepped the boundaries and were in violation of the Equal Protection Clause. The Court, however, went no further in regard to the entire concept and the previously established principle underlying race-based admissions in general. Basically, the Court reaffirmed Bakke and Grutter, but modified them following a plethora of criticisms of Harvard’s and UNC’s admissions programs. The Court summed it up: “The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve
T he minority set-aside is what did it in for the Regents of University of California in Bakke. 7 See: Gratz v. Bollinger, 539 U.S. 244 (2003), in which the Court held that the Fourteenth Amendment prohibits a university from using an undergraduate admissions policy whereby race is the sole reason behind awarding 20% of the minimum “points” required for admissions. Author’s note: This would be analogous (if not equivalent) to a quota. 8 Elsewhere, the Court states that: “If this were not enough, respondents’ admissions programs also lack a logical end point.” Fellows of Harvard College, 30, following Grutter, 539 U.S. 306, 342. “To the contrary, the Court [in Grutter] made it clear that race-based admissions programs eventually had to end.” Fellows of Harvard College, 34. 6
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CCBA Feature
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The CCBA Lawyer Referral Service continues to be a strong source of clients who are ready and willing to hire attorneys to meet their legal needs. It usually pays for itself after the first client, and every year so far, this has been an excellent source of several clients from our local community. The Lawyer Referral Service is a fantastic resource for attorneys interested in speaking with more potential clients in their specific area of practice, and is easy to use and update, to boot! -John V. Rafferty, Esquire Gawthrop Greenwood, PC
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From the Desk of the Executive Director
Leadership Lessons from the Golf Course and the CCBA-GWCCC Golf League
By Greg Nardi CCBA Executive Director
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his past summer I had the opportunity and privilege to participate in the joint Chester County Bar Association and Greater West Chester Chamber of Commerce Golf League. Organized by CCBA’s very own James Doyle, Esq., the league consisted of members of both organizations competing on a weekly basis in a format that allowed for varying combinations of players each week. This format enabled good competition and the networking that we all appreciate from our local area associations and chambers. While almost all of the members of the league are very good at this sport, I found myself with the “opportunity” to explore more of the course, chasing my errant shots from one trap to another rough. In all of this extra time, it dawned on me that there are a lot of life lessons out there on the course. The serene expanse of a golf course might seem an unlikely place to learn about leadership, but the sport offers valuable insights into this essential skill. Whether you’re enjoying a leisurely round with friends or competing in a summer golf league, the lessons gleaned from the greens are both timeless and relevant. Here are a few lessons that jumped out this summer as I spent a little extra time on every hole racking up the strokes.
First, golf teaches patience. Leaders must often navigate challenging situations with grace and composure. Similarly, a golfer learns to manage frustration when facing a difficult shot or an off day (or many off days), realizing that anger and
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www.chescobar.org impatience only hinder progress. This translates directly to leadership, as keeping a cool head in trying times is a crucial quality. Furthermore, golf emphasizes integrity and honesty. In a solo sport where you keep your score, it’s easy to cheat, but true golfers know that dishonesty diminishes the game’s spirit. Leaders should likewise maintain integrity, understanding that trust and respect are built on a foundation of honesty. Additionally, golf encourages adaptability. Weather conditions, course layouts, and personal performance can change rapidly. Successful golfers and leaders alike must adapt their strategies and approaches to navigate unforeseen challenges and maintain progress. Golf also teaches about work-life balance. The sport embodies the work-hard, play-hard mentality. A day on the course allows you to recharge your batteries and return to the office with a fresh perspective. It’s the
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ultimate reminder that life isn’t just about work, but about enjoying the journey and taking those well-earned breaks to savor the small victories. Lastly, golf teaches humility. No golfer, no matter their skill level, is exempt from making mistakes. Accepting these imperfections and using them as learning opportunities mirrors the humility required of effective leaders. In summary, the golf course and this golf league offer a unique and valuable training ground for leadership development. Among many potential lessons, golf imparts patience, integrity, adaptability, and humility, helping individuals become more effective and resilient leaders both on and off the course. Thanks again to James Doyle and all those who participated in this year’s league for not only playing a game but also honing your leadership skills. See you next summer!
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CCBA Feature
WE WOULD LIKE TO RECOGNIZE OUR CURRENT AND NEW FOUNDATION AND KEY FELLOWS Thomas Abrahamsen Robert Adams Mary-Ellen Allen Salvatore Anastasi Kevin Ansley Mark Ashton Stephen Baer Bridget Bailey Ashley Beach Joseph Bellinghieri MichelleBernardo-Rudy Rami Bishay Mark Blank, Jr. Hon. David Bortner Robert Brendza Ronald Brien Joseph Brion Dennis Brogan Hampton Brown Richard Brown Robert Burke Barry Buckley Kristin Camp Joseph Carroll Nicholas Casenta Jr. Alex Chotkowski Lee Ciccarelli Hon. Jaqueline Cody Paul Cody Margaret Connors Samuel Cortes Kimberly Cox M. Gordon Daniels Fritz Delduco Robert DeLong, Jr. Stephanie Deviney Harry DiDonato Joseph DiGiorgio Joseph Dougherty Eugene Evans John Featherman III J. Keath Fetter Jennifer Fink John K. Fiorillo Penny First Jay Fischer Edward Foley Robert Frame Joel Frank James Freeman David Frees Stacey Fuller William Gallagher Richard Gentry Nancy Glidden Lawrence Goldberg Alfred Gollatz Jamie Goncharoff Allan Greenwood
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Hon. John Hall Lisa Comber Hall John Halsted Carol Haltrecht Hon. John Hannum John Hannum, Jr. Richard Hannum Peter Hart Frank W. Hayes J. Stoddard Hayes Kevin Holleran Elizabeth Howard Roger Huggins Charles Huston III Alan Jarvis Hon. J. Curtis Joyner Terry Knox Donald Kohler, Jr. Christin Kubacke Louis Kupperman Madeline Lamb Bruce Laverty Marta Laynas Shelly Lawson Wesley Legg Jeffrey Lewis Marc Lieberman Stanley Lieberman John Lindros Richard Lipow Michael Louis Donald Lynn Daniel Maisano Julia Malloy-Good James Marlowe II Albert Massey Heather Mattes Hy Mayerson Thomas McAndrew, Jr. Justin McCarthy James McErlane Stephen McGuire John McKenna Patrick McKenna Samuel McMichael Anthony Morris Kim Denise Morton Dawson Muth David Myers Brian L. Nagle Hon. Ronald Nagle Greg Nardi Lance Nelson Alan Novak Lawrence O’Donnell Patrick O’Donnell Allen Olin Anita O’Meara Hon.Paula Francisco Ott Lawrence Persick
Kenneth Werner Michael Petock Cathy Wilson Andrea Pettine Thomas Wilson Norman Pine William Wilson Mary Ann Plankinton John Wollman Hon. Katherine Platt Joseph Wusinich Vincent Pompo Laurie Wyche-Abele Charles W. Proctor III Alyssa Cannon Yori Kevin Quinn Christine Zaccarelli Barry Rabin George Zumbano Thomas Ramsay Andrew Rau Timothy Rayne Hon. Howard Riley, Jr. Thomas Riley Joseph Riper Mary Ann Rossi Hon. Alita Rovito Michael Rovito Hon. Allison Bell Royer James Ruggeiero Deborah Ryan M. Frances Ryan Susan Sacchetta John Saling Hon. Juan Sanchez Denotes Key Fellow Randy Schauer Thomas Schindler Duke Schneider Patrick Scott Karyn Seace Randy Sebastian Winifred Sebastian Mark Segal Ellen Sheehan Jane Shields Stephen Siana Hon. Charles Smith Hon. Jeffrey Sommer Elizabeth Srinvasan John Stanzione Eugene Steger Hon. Phyllis Streitel Craig Styer Steven Sugarman Edward Sweeney Charles Swope John Talierco Lester Tauffen Peter Temple John Teti Louis Teti Eric Trajtenberg Hon. Mark Tunnell Ross Unruh Jeffrey Valocchi Joseph Vaughan Ubel Velez Hon. Anthony Verwey Catherine Voit Dean Walters William Weber
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New Matter | 21
Did You Ever Wonder?
Second Historical Arrest of a U.S. President By Charles T. DeTulleo, Esquire Law Office of Charles T. DeTulleo
Why is this topic so important?
1
According to media reports, it is the first time in the history of the United States of America (USA) that a President of the USA has been indicted by a federal grand jury and subsequently arrested. In this case, former President Donald John Trump, the 45th President of the United States, was indicted on June 8, 2023, by a federal grand jury in the Southern District Court of Florida. Initial leaks to the press indicated there were seven counts to the indictment. That was wrong. In keeping with my first article concerning Presidential firsts, I waited until there was a document that I could report to our readers on an accurate basis. (See https://en.wikipedia. org/wiki/Federal_prosecution_of_Donald_Trump) (Also, a quicker access to the actual indictment can be found at: https://www.pbs.org/newshour/politics/read-the-fulltrump-indictment-on-mishandling-of-classified-documents). As it turns out, there are 37 counts against former President Trump and 6 counts against Walt Nauta2. I am not including information on Mr. Nauta’s charges other than to point out that the document above also contains information about him. Trump will be prosecuted by Jack Smith, Special Counsel appointed by Attorney General Merrick Garland. The counts against former President Trump include willfully retaining national defense information in violation of the Espionage Act, making false statements, obstruction of justice, and conspiracy.
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The indictment is 49 pages long. But to be clear, the actual charges in the indictment start on page 28. The prior pages are entitled “General Allegations” and contain statements by the government about the case. Due to limits on articles, I am only including pp. 1 and 45 of the indictment. Therefore, in keeping with my prior article, I will inform the readers of what the statutes say that the President allegedly did. The below information cites to the Federal charges based on Title 18 of the Federal Code. I have not included the entire citation of each law since many would exceed the limited space constrictions of New Matter. Counts 1-31 of § 793 pp 28-33 “§ 793. Gathering, transmitting, or losing defense information.” "(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or...”).3 Count 32 § 1512, pp 34-35 “§ 1512. Tampering with a witness, victim, or an informant.” “(k) Whoever conspires to commit any offense under this section shall be subject to the same penalties as those This article was written on Tuesday, June 20, 2023. You will not see it until it is published in a following publication of New Matter. 2 The indictment identifies this gentleman. 3 This is also known as the “Espionage Act”. 1
www.chescobar.org prescribed for the offense the commission of which was the object of the conspiracy. ...”. Count 33 § 1512(b)(2)(A) and 2, page 36 “§ 1512(b)(2)(A) “(b) Whoever knowingly uses intimidation, threatens or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to(1) influence, delay or prevent the testimony of any person in an official proceeding; (2) cause or induce any person to (A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;...)” Count 34 § 1512(c)(1) and 2, page 37 “§ 1512(c)(1) “(c) Whoever corruptly(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both."
terrorism (as defined in section 2331 [18 USCS § 2331]), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591 [18 USCS §§ 2241 et seq., 2250, 2251 et seq., 2421 et seq., or 1591], then the term of imprisonment imposed under this section shall be not more than 8 years.” The remainder of the indictment contains a list of the various penalties for the crimes charged. Additionally, some standard forms are needed by the system to identify various parties to the action. At the submission of this article there is no new news worth reporting about the pending charges. Since finishing this article the day after celebrating Independence Day of the United States of America, I am reminded that we have celebrated 247 years and are still going strong. One of the many reasons is because we knew that Great Britain’s belief that a person was guilty until proven innocent was wrong. Our belief that everyone is considered not guilty until guilt is proven by “proof beyond a reasonable doubt” by the government following the rights granted to us by our Constitution and our current decisions from the United States Supreme Court. As we continue to strive for a "more perfect union", let us not jump to conclusions that merely cause discord before we have a decision.
Continued on page 24
Count 35 § 1519 and 2, page 38 “§ 1519. Destruction, alteration, or falsification of records in federal investigations and bankruptcy Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.” Counts 36 + 37 § 1001(a)(1 + 2) pp. 39-41 “§ 1001(a)(1 + 2). Statements or entries generally (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or...”.4 “shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic As of July 5, 2023, there were over 13,880 Lexis cited cases for this section of the U.S.Code. There were 77 cited cases for the United States Supreme Court.
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Did You Ever Wonder? Continued from page 23
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Continued on page 26 New Matter | 25
Did You Ever Wonder? Continued from page 25
Second Historical Arrest of USA President added charges By Charles T. DeTulleo, Esquire Law Office of Charles T. DeTulleo
Why is this topic so important?
You should be seeing or have read the original story of the former President of the USA being indicted by a Federal grand jury and subsequently arrested. This is a short update to that story. Former President Donald John Trump, the 45th President of the United States, was indicted on June 8, 2023, by a federal grand jury in the Southern District Court of Florida. The Superseding Charges were filed on July 27, 2023. It seems that the prosecution decided it did not have enough charges in the original indictment of 96 averred violations of the law. The Superseding Charges have added 24 averments to now total 120. (See https://en.wikipedia. org/wiki/Federal_prosecution_of_Donald_Trump). It also added additional charges to include 18 U.S.C. 1512 (b)(2) (B). Continuing the policy of keeping it short, the additional criminal charge is quoted below with an attachment of pages 1 and 54 of the Superseding Charges.
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“§ 1512. Tampering with a witness, victim, or an informant” “...(b) Whoever knowingly uses intimidation, threatens or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to(1) influence, delay or prevent the testimony of any person in an official proceeding; (2) cause or induce any person to(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; (B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;...” “...shall be fined under this title or imprisoned not more than 20 years, or both.” An additional article will report on other charges from the state of Georgia.
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Save Our Environment
Is It a Fee or Is it a Tax: How Do We Determine if a Municipal Stormwater Assessment or Charge is a Fee or a Tax?
By John R. Embick, Esquire John R. Embick, PLLC Chair of the CCBA Environmental Law Section
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n January 4, 2023, the Pennsylvania Commonwealth Court issued a decision in Borough of West Chester v. PSSHE and West Chester University, No. 260 M.D. 2018. The Borough attempted to assess a stormwater management fee on all property owners in the Borough, based upon the amount of impervious surface coverage (impervious surface coverage means all areas that do not allow the infiltration of water into the ground, including roofs, sidewalks, parking lots, etc.). Interestingly, West Chester University operates its own stormwater control and management program independent of the Borough. West Chester University appealed, saying that the fee was a tax, and that, as a tax-exempt commonwealth entity, the University did not have to pay the tax. Commonwealth Court ruled that the charge was a tax. However, the decision is marked “Opinion Not Reported,” and so therefore is not precedential, but under Commonwealth Court rules (210 Pa Code §69.414), can be cited for persuasive value. A request to report the decision has been made, and an allocatur petition has been filed with the Pennsylvania Supreme Court. 28 | New Matter
The simplified backstory is as follows. After decades of focusing on the control of contaminants generated by industrial processes and waste water treatment facilities, and which contaminants are issued from point sources, like pipes and other conveyances, into streams, lakes, bays, etc., the regulatory agencies (both federal and state) began to create regulatory programs to address non-point stormwater runoff, from construction sites, impervious surfaces, etc., in order to reduce erosion and sedimentation problems caused by rainfall and associated runoff. Dirt and soil (and other pollutants) are picked up by stormwater running off the ground, and are transported into our waterways causing pollution. A number of regulatory programs have been developed to address these problems, including erosion and sedimentation regulations (see, e.g., 25 Pa. Code Chapter 102), and the Post Construction Stormwater Management Plan permit system (see, 25 Pa. Code §102.8). In addition, almost every municipality in Chester County has adopted a stormwater management ordinance. In addition, many municipalities in Pennsylvania are required to control stormwater pollution that is controlled and conveyed by their municipal stormwater collection systems. This program, which started about 30 years ago, was the result of the 1987 amendments to the federal Clean Water Act, and is known as the Municipal Separate Storm Sewer System (“MS4”) program. PA DEP issues MS4 permits (a type of National Pollution Discharge Elimination System (“NPDES”) permit) to municipalities,
www.chescobar.org and this regulatory control program requires municipalities to develop stormwater management and monitoring programs to reduce stormwater contaminants discharging from the MS4 systems. As a consequence, municipalities must fund storm water control measures, and some of these controls are quite expensive. The state statutes that regulate municipal entities and authorities allow municipalities or authorities (see, e.g., the Pennsylvania Municipality Authorities Act, 53 Pa. C.S.A. §§5601, et seq.) to impose fees or taxes on residents and property owners in order to fund stormwater management programs. Different approaches to calculate charges have been implemented, like the Equivalent Residential Unit method, or the Equivalent Hydraulic Areas method, for example. The determination of whether a stormwater control assessment is a fee or a tax has implications for property owners, and for tax exempt organizations. In West Chester Borough v. PSSHE and WCU, Commonwealth Court cited its previous reasoning in the case of City of Philadelphia v. Pa. Pub. Util. Comm’n, 676 A. 2d 1298, 1307-08 (Pa. Commw. Ct. 1996) to determine whether the charge is a fee or a tax: The classic tax is “imposed by a legislature upon many, or all citizens[. It] . . . raises money, [is] contributed to a general fund, and [is] spent for the benefit of the entire community.” San Juan Cellular Tel[.] Co. v. Pub[.] Serv[.] Comm[’]n of Puerto Rico, 967 F.2d 683 (1st Cir. 1992). A tax is an “enforced contribution to provide for the support of government.” United States v. LaFranca, 282 U.S. 568 . . . (1931). Where a charge is imposed by a state or municipality not in its capacity as a sovereign but rather under a voluntary, contractual relationship, it has been held not to be a tax. United States v. City of Columbia, M[o.], 914 F.2d 151, 156 (8th Cir.1990). A “fee” is paid to a public agency for bestowing a benefit which is not shared by the general members of the community and is paid by choice. City of Vanceburg, K[y.] v. Fed[.] Energy Regul[.] Comm[’] n, 571 F.2d 630, 644 (D.C. Cir.1977) . . . . The Supreme Court distinguished taxes and fees in National Cable Television Association v. United States, 415 U.S. 336, 340, . . . (1974): Taxation is a legislative function, and [a legislature] . . . may act arbitrarily and disregard benefits bestowed by [a g]overnment on a taxpayer and go solely on ability to pay. . . . A fee, however, is incident to a voluntary act, e.g., a request that a public agency permit an applicant to practice law or medicine or construct a house or run a broadcast station.
Slip Op. at 12-13. Contrast West Chester Borough v. PSSHE and WCU, with the case of Appeal of Best Homes DDJ, LLC, 239-40 C.D,. 2020 (Pa. Commw. Ct, Dec. 23, 2021) (“Best Homes”). In Best Homes, Commonwealth Court upheld a lower court decision in which a stormwater fee levied by the City of Chester was found not to be a tax. Best Homes also was an unreported decision. The decision in Best Homes was influenced by an expert opinion that concluded that the stormwater fees were reasonably related to the services provided by the City of Chester, and the method in which the fees were calculated. In Westtown Township where I live, Westtown School several years ago completed an expensive project which was designed to restore the 14-acre lake on the School property. The project involved the repair of an earthen dam, the construction of a spillway, the removal of accumulated sediment to deepen the lake, and the installation of additional control measures which are designed to capture sediment before it enters the lake from waterways upstream of the Lake, and controlling runoff from property adjacent to the Lake. These programs have a real effect on reducing pollution which eventually enters the East Branch of the Chester Creek (this waterway is designated to be an impaired waterway, which means that the waterway does not meet water quality standards assigned to it). Westtown Township operates an MS4 system and has an MS4 permit. If Westtown Township were to enact a stormwater management fee (which it has not), should Westtown School receive some sort of credit because the School has addressed stormwater control privately? If so, how much, and how do we measure or value such control measures? In West Chester Borough v. PSSHE and West Chester University, the court did not hold that all stormwater charges are taxes. Rather, the court focused on the ordinance language authorizing the charge, and the manner in which the charge benefits the owner of property. Accordingly, the analysis seems to be highly fact-dependent. Many municipalities or municipal authorities in Pennsylvania have imposed stormwater management fees based on impervious surface coverage, so that the decision in West Chester Borough v. PSSHE and West Chester University potentially has widespread implications.
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CCBA Feature
LEGACY PHILANTHROPY: 2023 Smart Giving
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s the air begins to chill and the holidays draw near, the season of giving has officially arrived!
Nonprofit charities are always eager to accept gifts from your communityminded clients. We want to help ensure that their charitable intent makes the greatest impact. At the Community Foundation, we receive this distressed phone call all too often: “I have a client who wants to leave a large portion of their estate assets to XYZ charity. I’m wary because I heard that this charity isn’t doing so well. Can you help us figure this out? We want to promote legacy philanthropy but not this specific charity. What do you know about this charity? What should I tell my client?” We can help you support your clients with due diligence to best discern legitimate charities that do cost-effective, impactful, and good work. Due diligence has two levels. The first level is merely compliance: Is the charity registered properly? The second level is performance: Does the charity’s work make a significant positive difference? As a start, take advantage of online tools. Start at charitynavigator. org, where you'll find ratings for 200,000+ charities. Even more revealing, guidestar.org at Candid has profiles for 2 million nonprofits along with IRS Form 990. This discloses the proportion of a nonprofit charity’s expenditures on programs and services vs fundraising and administration; whether the nonprofit updates its conflict of interest disclosures; salaries of highly compensated employees; and financial trends over time. Keep in mind, due diligence is an art and a science. Smart giving is engaged philanthropy that goes hand in hand with due diligence. Let’s hear from attorneys who serve on the Board of the Community Foundation: Knowing Your Clients’ Values “I appreciate hearing my clients talk about their holiday traditions. I listen especially closely to their volunteer activities and the satisfaction they get when giving to causes they care about,” explains L. Peter Temple, Esq., attorney at Larmore Scarlett. “Values give our lives meaning. Especially when doing estate planning, values underscore the legacies people want to leave behind. Even if an estate planning client isn’t specifically talking about legacy philanthropy, clarifying values gives you an opening to bring up the subject. Sometimes, clients will name a handful of nonprofits they support, and others they have questions about. That’s when the legacy philanthropy planning gets interesting and exciting, aligning current and future charitable legacy giving with their core values and beliefs.” 30 | New Matter
The Gift of Time, Talent & Treasure “Attorneys are busy people. But we also bring a very special skillset to nonprofits: communication, problem solving, legal expertise, to name a few. I recommend serving on Boards of local nonprofits as a way for attorneys to help the community,” says Denise Antonelli, Esq., of Gawthrop Greenwood. “Chester County has over 800 nonprofits in need of good board members. In the long run, Board members also make major gifts and legacy gifts to the nonprofits they’ve been committed to throughout their lives.” Rely on Your Community Foundation For Elizabeth Zwaan Milne, Esq., and her family, the Community Foundation is personal. “My family established the Brian C. Zwaan Legacy Fund to continue my father’s passion for education. It’s a community effort involving family, friends, co-workers and neighbors: we pool our resources to raise funds at the Brian Zwaan golf outing and other fundraisers. We rely on the Foundation to help us find nonprofit organizations in need of financial support and vet them for impact. We decided to grant to 5 Philadelphiaarea nonprofits focused on education this year. The Community Foundation makes smart grantmaking seamless and effective.” Your local community foundation is a fount of information on community needs and the local, regional, and national charities best-positioned to meet those needs. The Chester County Community Foundation urges donors to give wisely and generously. Strategic, planned donations can significantly increase the benefits and impact of gifts for years to come. Visit www.chescocf.org to learn more about how the Chester County Community Foundation connects people who care with causes that matter, so their legacy makes a difference, now and forever. Questions? Contact Winnie Sebastian, Esq., Board Chair Karen Simmons, President/CEO Jason Arbacheski, CAP, Director of Gift Planning and Stewardship Chester County Community Foundation 28 West Market Street, West Chester, PA 19382 (610) 696-8211 | info@chescocf.org | www.chescocf.org
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READING | PHILADELPHIA | LEHIGH VALLEY | CENTRAL PA | NEW JERSEY
Smart Giving for the holiday season, all year & a lifetime
Ask your Community Foundation karen@chescocf.org
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jason@chescocf.org
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steph@chescocf.org
28 West Market Street, West Chester, PA 19382 www.chescocf.org info@chescocf.org (610)696-8211
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