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THE AWARD WINNING PUBLICATION OF THE CHESTER COUNT Y BAR ASSOCIATION • CHESTER COUNT Y, PA www.chescobar.org

SPRING 2016

2016 Spring Bench Bar Conference

at The Desmond Hotel March 31

2016 RESOLUTIONS page 14

OFF THE CUFF

page 18

THE CASE OF PASSMORE WILLIAMSON page 26


New Matter CCBA Officers William T. Wilson, President Christine E. Zaccarelli, President-Elect Mary-Ellen Allen, Vice President Patrick M. McKenna, Secretary Samuel W. Cortes, Treasurer Collen Frens, Esq., YLD Chair New Matter Committee Charles DeTulleo, Editor Rami Bishay Mark Blank, Jr. Keith Boggess Brian Doyle 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

Content

SPRING 2016

FEATURES 2015 Annual Meeting .............................. 6 It’s a New Year!........................................... 8 Legal Aid of Southeastern PA Thanks You!.............................................. 10 Challenging Child Custody Orders on First Amendment Grounds............... 11 Support for Indigent Parents By Children Takes a New Turn................ 12 Can I Still Own a Gun?

The Making of a Prohibited Person Through Ineffective/Incompetent Legal Advice.............. 16

Confessions of Judgment:

A Lender’s Best Friend When Confronted with a Defaulting Borrower............................. 20

IN EVERY ISSUE President’s Message................................... 4

End of File and Suspend......................... 25

Featured Member Profiles Richard & Deni Morton................................... 9

Ex Post Facto In the Pennsylvania Supreme Court................ 30

Ramblings From a Legal Law Clerk........ 14

CCBA Staff Wendy Leeper Executive Director

Dictum for Dummies............................... 18 Save Our Environment.............................22

Emily Boulanger Communications & Event Manager

Your Bar Foundation................................ 26 The Blank Page..........................................28

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. 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.

From the Archives New Matter—May 1980..............................31

Your Ideas!

WANTED...

If you have an idea for an article, or would like to submit content, please contact Emily Boulanger at eboulanger@chescobar.org or (610) 692-1889. PUBLISHER: Hoffmann Publishing Group 2921 Windmill Road, Suite 4, Sinking Spring, PA 610.685.0914 x201 • hoffmannpublishing.com

GRAPHIC DESIGNER: Brittany Fry

For Advertising Information & Opportunities Contact: Karen Zach 610.306.2242 Karen@hoffmannpublishing.com


President’s Message

just completed a challenge to raise $50,000 in donations in support of Legal Aid of Southeastern Pennsylvania (all of which funds go to support its Chester County operations), which earns it an additional $20,000 in matching grants.

William T. Wilson

President

I

insure adequate representation for someone whose case may be challenging, but which has at least been screened beforehand as something better than frivolous. There have even been panel cases that were won at trial, leading to fee petitions. Check out these programs at the Eastern District’s web site In addition to our support for Legal Aid, by clicking on “Volunteer Attorney Panel our program of Access to Justice for the Information” under the Documents menu. working poor, who are not quite unfortunate enough to qualify under Legal Aid’s We have some members whom you are guidelines but can still not readily afford not going to see in a court room on behalf counsel, is unsurpassed. Our program has of an indigent litigant, or writing a will for been recognized as the statewide leader in an Access to Justice client. We have memthis area by the PBA. Our members sup- bers who, I happen to know, contribute port both Legal Aid and Access to Justice enormously to the better administration through their time as pro bono counsel of justice through uncompensated service ( John McKenna once reminded me that for the Disciplinary Board or through you can’t pay him to do a domestic relations other appointed positions. Lawyers discase, but he does do them for free). That is proportionately show up on the boards of not to mention the financial support that charities and other non profits, and in a often comes from the same people. thousand other ways.

firmly believe that, here in Chester County, most of us practice law in the best traditions of the bar. We are a little more civil, and forthright, than what I have often seen in some other locales.This is one aspect of the right way to practice. Our bar, and this association, The U.S. District Court for the Eastern seem to have a consciousness that a quality District has two pro bono programs that of professionalism is the civility that makes are a bit underutilized by our members, us a legal community. These are among the but are worth your consideration. You can reasons I am so humbled that you decided rescue a sure-to-be-grateful district judge I should be your president for 2016. from a pro se litigant by accepting one of Another side of professionalism is that the cases on the lists for the Employment we act as community leaders and, specifical- Law or Civil Rights Panels. Under these ly for this issue of this newsletter, provide programs, there is even a chance of earnsome of our time to the support of those ing a fee, if you can achieve a recovery for who cannot afford the rates most of us the client, but don’t count on it being a tend to charge for our services. Our bar profitable endeavor. Your motive will be has, for the umpteenth consecutive time, to serve the judicial system by helping to

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Most of us make a pretty decent living, courtesy of the justice system. We have time to give a little back. That system would not work as it does if access to some of its essential services were foreclosed to those who cannot normally retain us. I think our members are doing a great job in preventing that, but there is plenty left to do. If you don’t see yourself described here, it is time to step up. If you know a member of the bar who is looking for a way to better serve our community, encourage him or her to sign up for one of these programs.


CCBA Feature

Annual Meeting By Karyn L. Seace, Esquire n December 10, 2015, the Chester County Bar Association and the Chester County Bar Foundation, for the first time ever, jointly held an annual meeting at the historic courthouse in beautiful courtroom one, which has been reserved for such functions for the Chester County Bar Association. Randall C. Schauer led the memorial service for departed members. Some of the highlights appear in here. The minutes from last year’s meetings were read and approved, and the Treasurers’ and Presidents’ reports were presented. Then there were four grants presented as follows: Peggy Gusz accepted $10,000.00 on behalf of The Crime Victims’ Center of Chester

County, Inc., Dolly Wideman-Scott accepted $5,000.00 on behalf of the Domestic Violence Center of Chester County, Liz Fritsch accepted a conditional $10,000.00 grant on behalf of Legal Aid of Southeastern Pennsylvania, and Burroughs Mack accepted $5,000.00 on behalf of the Family Services of Chester County. Patrick McKenna spoke on the historical committee and its need for members to help identify some photographs. These photographs are located on the second floor of the Bar Association, all the way in the back, near the computer. The original key that unlocked the Chester County Courthouse is also on display there. It dates back to 1724 and was found during the recent renovations. John DiGiacomo was mourned with Jay Levin petitioning. Janet Colliton and Judges Tunnell and Platt shared special stories. Allen Olin was also remembered with Ronald Agulnick participating in absentia through Burt Knoll. Mrs. Olin was in the audience, along with her daughter Jennifer. Stanley Lieberman, Lawrence A. Goldberg, and Judge Nagle offered memories. Robert Shaffer’s passing was also lamented with Joseph J. Dougherty petitioning and Judge Nagle and Stephen J. McGann offering personal expressions. The results of the Grand Challenge were announced. The Chester County Bar Association now has 1,031 members! Also, an announcement was made that Wendy Leeper had a video made by Justin Sochovka, CCBA’s Multi-Media Manager. This video is aired before all PBI CLEs hosted at the Chester County Bar Association. These seminars are a very important part of the Bar Association’s revenue. The best part of the whole meeting was the showcasing of that video’s bloopers by George Zumbano, Christine Zaccarelli, and Lisa Comber Hall! Justin made a video of the renovation that took place at the Bar Association. With the camera fixed at the same angle, he took a picture every day. It was really creative and very interesting to see how it all came to be what we see today. Following the meeting, there was a party at which the Chester County Paralegal Association held a wine bottle grab bag. The money earned benefitted Legal Aid of Southern Chester County.

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www.chescobar.org

Annual CCBA Presidents’ Passing of the Gavel Ceremony

2015 President, Craig Styer, presenting gavel to 2016 President, Bill Wilson

Lisa Comber Hall presenting Dolly Wideman Scott of the Domestic Violence Center of Chester County with $5,000 Grant

Craig Styer (CCBA President) and Lisa Comber Hall (CCBF President) each presenting Liz Fritch of Legal Aid of Southeastern PA with $10,000 Grant.

Lisa Comber Hall presenting Burroughs Mack of Family Services of Chester County with $5,000 Grant

Lisa Comber Hall presenting Peggy Gusz of the Crime Victims’ Center of Chester County with $10,000 Grant New Matter

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CCBA Feature

! r a e Y w e N a s ’ It By Andrea B. Pettine, Esquire

H

in someone else’s house—or in someone else’s “yard”—despite appearances. There are many people out there able to present themselves in a “perfect image,” yet their lives are a mess behind those doors, whether financially, emotionally, professionally or due to health issues. Although we deal with our clients every day with many of these problems in their lives, as lawyers sometimes we also need a reminder that we often don’t know what struggles an opposing attorney is facing while working with them in a case. The concept of “civility” towards each other is an important one that some of us need to remember more often. It’s easy for our clients to be self-centered and demanding (the same can be said for teenagers, but that’s a topic for another day!). The clients are looking to us as their attorneys to help them at a very difficult, and often emotional, time in their lives. It’s easy for those clients to forget that Although I don’t like formal “resolutions,” their attorney is a person too and civility this past year I promised myself I would toward their own attorney is not always (or try to be better at not taking anything in ever) their priority. I know I’m not the only life for granted, whether that be my law one that’s been treated poorly by a client. practice, friends, family or professional I often laugh at the similarities between relationships. I think I was fairly successpracticing law to my days in college and law ful at that and I will continue to work on school working as a waitress. It was always improving in that department this year. We those demanding tables in the restaurant all know that life can change in an instant that ran me back and forth with their (often not in a good way) and it’s easy to numerous requests, and for whom I bent make the mistake of thinking the “grass over backwards to give them great service is always greener” in someone else’s “yard,” as their waitress, who then left me a really especially if things seem overwhelming in bad tip. It’s not really that different as an your own “yard.” attorney with those demanding clients Practicing family law for almost 24 that you do a great job for, and give them years has definitely taught me you never great service, who then don’t want to pay know what goes on behind closed doors their legal fees or they refuse to pay at

appy New Year! I’m writing this very close to deadline on New Year’s Day (per Wendy Leeper’s “not so gentle reminder”) as part of our CCBA Past Presidents’ Council and at a time when everyone is thinking about the past year, as well as the 2016 year to come. Good or bad, we all get a fresh start for the coming year and the slate is wiped clean. As a lawyer in private practice, one of the overwhelming reminders of that clean slate is always that the new year starts over with big “ZERO” in the billable hour column. Despite that unavoidable annual fact, January 1st always makes me feel nostalgic about the past year and I can’t help but wonder if there’s anything I should change in the coming year. It’s also a reminder of the many things which we each have to be thankful for.

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all. It might be lost on our clients sometimes but, as attorneys, we can advocate zealously for our clients without losing the concept of civility toward each other, and without personal attacks directed at the opposing attorney. We need more civility toward each other in this profession and less of those personal attacks. Is that a concept you need to work on in the new year? Let’s not be the reason a case takes a turn in the wrong direction. The clients do enough of that on their own. As attorneys, we also need the support of each other. We each understand the demands and stress we face every day in our practices. We’re all trying to balance the demands and needs of our families, businesses, billable hours, clients, judges, court schedules, non-profit board/volunteer work, and maybe trying to find a little time for yourself (what is that?)—along with whatever other personal struggles someone may be facing behind those closed doors that you don’t even know. I’m very fortunate that some of my closest friends in my support network are also attorneys. I first met many of these friends/attorneys at a CCBA event years ago. If you haven’t been able to attend an event or participate in the CCBA, I’d urge you to try and make some time for that in 2016. It won’t take you long to see the personal and professional benefits from your participation. It may even make you a little more “civil.”

Wishing all of you a happy and healthy 2016!


CCBA Featured Member Profiles

C. Richard Morton, Esquire Where do you live?

East Bradford

My first job:

Last book I read:

The Pope and Mussolini

My favorite TV shows:

www.chescobar.org

Kim Denise “Deni” Morton, Esquire Where do you live?

Corrupted

My first job:

My favorite TV shows:

Hauling hay for a farmer for $ .25 an hour

PA Cable Channel—watching appellate arguments, Jeopardy

Lifeguard

What word best describes me:

Goals yet to be achieved:

Intense

Mad Dog

Write memoirs

Where you can find me on a Saturday afternoon:

Little known fact about me:

Working at home

Made Law Review while working almost full time in law school

My favorite way to spend free time:

Google, ChescoPin

My greatest extravagance:

What would I be if I wasn’t a lawyer:

Reading

Clothes shopping for Wife at Jane Chalfont for 30+ years

My favorite vacation destination:

Cape Cod

The person I’m most interested in meeting:

President Obama

My favorite food:

Seafood

My favorite websites:

Can’t think of anything!

What I like most about the CCBA:

Integrity of the bench and bar

The last book I read:

East Bradford

What word best describes me:

Where you can find me on a Saturday afternoon:

Big Bang Theory, House of Cards

Goals yet to be achieved:

Retirement!

Little known fact about me:

In the fall: watching college football In the winter: skiing

I have been a ski instructor for the past 15 years

My favorite way to spend free time:

Google

My greatest extravagance:

What would I be if I wasn’t a lawyer:

What’s that?

The motor home

My favorite vacation destination:

Any place in the motor home.

The person I’m most interested in meeting:

Beth Moore

My favorite website:

Speaker at marriage seminars. (After 30+ yrs as a divorce attorney and 38+ yrs of marriage—I think I am qualified)

What I like most about the CCBA:

Socializing and getting to know other lawyers

My favorite food:

Any meal at the Lobster Pot in Provincetown, Cape Cod

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CCBA Feature

Legal Aid of Southeastern PA

Thanks YOU! By Stacey L. Fuller, Esquire, LASP, Board of Directors

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f you are a member of the Chester County Bar Association there is no doubt you received a number of emails about the Annual Campaign for Legal Aid of Southeastern PA. To those of you that responded to the call for help, THANK YOU! We are pleased to report that we reached our $50,000 fundraising goal which means we will be receiving an additional $10,000 EACH from the CCBA and CCBF. Thank you! We are extremely grateful for your support and realize that all of those emails and pleas for your financial support may have been prompting some questions about what exactly Legal Aid does and why you should donate to Legal Aid of Southeastern PA (LASP). LASP is a four-county agency that provides free quality civil legal services to low income and senior residents of Delaware, Chester, Montgomery and Bucks Counties. LASP serves very vulnerable people—low wage working families, domestic abuse victims, the elderly, people with disabilities, people who have lost their jobs and their incomes. LASP resolves legal problems for people who have nowhere else to turn for help. It’s also important to know that all money raised locally stays local–so your donation goes to the Chester County Division of LASP! So, what exactly does that mean, “provide free quality civil legal services to low income and seniors”? To our clients it means they have someone in their corner, someone who is looking out for their interests when they can’t afford to hire private counsel. Simply put, they have a lawyer. When their landlord threatens to evict them, they can call their lawyer. When the mother of their

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children violates the custody order, they can call their lawyer. When…the list goes on and on. So, what does our client look like? That’s a tough one because they are all so different—a single mom caring for young children who wants to file for bankruptcy after a divorce drained her finances, a single dad working full-time who just wants to see his children, an elderly married couple who want a power of attorney or an unemployed professional who needs help with an unemployment compensation claim. While all of our clients are unique in their personalities and circumstances, they all share a common thread; without Legal Aid, our Pro Bono Program or Access to Justice, they would be facing their legal problems alone. We’ve all been there, dealing with a pro se litigant who understandably cannot navigate his way through the court system. It makes everything about the case harder. Every LASP and ATJ client would be another pro se litigant without the availability of our services. So, if you have donated already to LASP— again, we thank you! If not, it’s not too late; please help us jumpstart our 2016 Annual Campaign with a donation today! If you have any questions about our services or volunteer opportunities please contact Christine Zaccarelli, Esquire, at czaccarelli@lasp.org or 610-436-4510.


CCBA Feature

www.chescobar.org

Challenging Child Custody Orders on First Amendment Grounds By Shannon K. McDonald, Esquire

CCBA MEMBER MOMENTS

Holiday Happy Hour

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n the appellate world we see a lot of child was autistic and had behavioral constitutional law thrown around in problems, and that the child was not criminal cases, and in some civil suits, but potty trained, when by all appearances it has been a while since a credible appeal to that principal and the school teachers, on a child custody order challenged the those statements were untrue. court based on the First Amendment. That’s just what happened in JPW v. Based on this evidence the trial court ANH, where the Western District of found that mother’s statements were the Superior Court found in favor of disparaging and likely detrimental to the father and affirmed the trial court’s the child’s mental health and well-being. custody order. Therefore, the court found, it would be in the best interests of the child if mother was prohibited from stating or implying So to be clear, it wasn’t really that these things to the child’s doctor or mother was challenging the primary teachers or school. The appellate court physical custody of the child being with went further, stating that mother may in father; she appears to have acceded that point. She instead appealed based on a fact have been defaming her child, and clarification after a petition for special found that the trial court had chosen the relief, that prohibited the mother from least restrictive method of protecting the saying or implying to the child’s school child given the facts and circumstances or doctors that the child was autistic or of this case. developmentally delayed. Mother sought vacatur of that order. Although I agree that mother was probably harming her child by these An evidentiary hearing was held after statements, if not immediately, then father filed a petition alleging mother she would be harming the child’s future was indicating to the child’s preschool through the methods which schools that the child was developmentally would have to address these concerns, I delayed, that he is not potty trained, am not sure I agree that a gag order is and that he is autistic. At the hearing the way to go. Or perhaps, better stated, the child’s pediatrician testified that I think father should have filed for a prothe child was not developmentally tective gag order in the civil court based delayed, that he had reached normal on defamatory statements, rather than milestones for his age, and that there the custody court engaging in limiting was no evidence of autism. Additionally, what is, fortunately or unfortunately, this the principal of the preschool testified woman’s right to speak. that mother had led her to believe the

Bill auditioning for “The Price is Right” (Bill Wilson in picture)

There is something wrong with those halos (Rami Bishay in picture)

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CCBA Feature

Support for Indigent Parents By Children Takes A New Turn

By Janet Colliton, Esquire

f current trends continue, adult children of parents needing care might not need to wait until their parent is in an assisted living or nursing home before receiving a support order. Children who have distanced themselves from their parents and leave all the care and expense to one of their siblings may be called upon to pay monthly support in a similar way to the support they might now provide for their minor children or spouses. In 2012 and 2013, I first reported on a Pennsylvania landmark case, HCRA v. Pittas, where the Pennsylvania Superior Court applied a judgment of nearly $93,000 against a son of a nursing home resident under Pennsylvania’s “filial responsibility” law based only on the biological relationship of son to indigent parent. The Pennsylvania Supreme Court in 2013 declined to hear the case and this allowed the lower Court’s decision to stand. The son was ordered to pay for his mother’s care. Since then, Pittas has been applied irregularly by care communities, causing some to think it was an aberration. Now, in another case where the parent is at home, the Pennsylvania Superior Court again found against an adult son. Although it is listed as “Non-Precedential” it is sure to be cited by many beleagured brothers and sisters who are caring for Mom or Dad and are unable to keep up with the cost of at-home care. In Eori v. Eori, a 2015 decision, Mom, Dolly Eori, lived with Joseph, one of her three children and her agent under power of attorney. She had cancer, dementia and Alzheimer’s disease

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requiring 24-hour care. When left alone, she trashed the house. She would spend part of her day at an adult day center. Combined, the cost of the caregivers alone was more than her monthly income and her son Joseph testified that, if he did not contribute from his own funds, his mother’s account would be a negative balance. Continued on page 13


www.chescobar.org Continued from page 12 Joseph filed a Complaint for Filial Support against his sister and brother to compel them to contribute to Mom’s support. Before the hearing his sister voluntarily entered into an Order of Support to pay toward Mom’s care. The case proceeded against Joseph’s brother, Joshua, who had previously changed his name to Joshua Ryan. It became clear from the testimony that Joshua had had an erratic, largely unhappy home life with Mom if not abusive. Joshua raised in his defense that (a) Mother did not qualify as “indigent” under the law; (b) his assets and income were too low for him to contribute to support; (c) he was abandoned as a child. For filial responsibility to apply, the parent has to be “indigent,” but it has become clear from Superior Court cases that this does not require much. If a parent does not have enough to pay her bills, this qualifies as indigent. The specific description is that he or she “does not have sufficient means to care for their own care and maintenance.” Since Mom’s care alone cost more than her monthly income and her assets and savings would have been negative without contribution from her son, Joseph, Mom qualified as indigent. On Joshua’s ability to pay, the Court cited that Joshua owned a plumbing business with employees. He contributed to the cost of his stepchildrens’ college tuition but, since they were not biological children, the Court did not consider it of consequence. In any event, the Court believed that Joshua’s income was sufficient for him to be ordered to pay support for Mom. Finally, since Joshua had not been abandoned for ten years during the first 18 years of his life, the defense of abandonment was not applied. What does this mean for average families? First, I believe families need to work together toward the cost of a parent’s care. Family meetings can help. In the long run it probably will not be enough to say that your brother or sister should handle it alone. Second, it is important to plan ahead and apply intelligently for any benefits that would pay for care. There can be help in Medicaid certified nursing homes. There is much less help at home. Finally, get help from a professional who understands the system. These questions cannot be ignored. This article appeared in the Daily Local News–December 8, 2015 and is reprinted with permission of author Janet Colliton, Esq., who limits her practice, Colliton Elder Law Assocs., PC, to elder law, Medicaid, Medicare, life care, special needs, and estate planning and administration with offices at 790 East Market St., Ste. 250, West Chester, PA 19382, 610-436-6674, colliton@collitonlaw.com. She is a member of the National Academy of Elder Law Attorneys.

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Ramblings From A Legal Law Clerk

RE S O LU T IO N S By Mya Noonus

t’s the start of a new year and that means it’s time for me to Before I tell you my third resolution for 2016, I have to explain make my new year’s resolutions. I’m pairing down my usual something. Many moons ago, when I was a real lawyer practicing five resolutions to three. First, I’m going to drink more water. I in the real world, one of my bosses liked to say, “If the law is against like to start with an easy one to get my confidence up and improve you, argue the facts. If the facts are against you, argue the law. If my self-esteem. Second, I’m going to do more spell checking. both are against you, act indignant.”2 He took full credit for that This one is going to be a little harder. I turned off my automatic quote without reservation and one of my major pet peeves was spell check four years ago when it kept autocorrecting “praecipe” born, a lawyer failing to cite precedent. to “precise.” I also haven’t figured out how to use a dictionary to help me spell a word. If I already didn’t know how to spell I am a firm believer that there are very few truly original legal “pneumonia,” where would I look for it in a dictionary when it’s thoughts. Even our founding fathers had help from those that pronounced [n(y)oō'mōny ]1? came before them. For example, the idea of government in the form of separate branches, including an independent judiciary, was an idea presented by the provincial General Assembly more than 70 years before our founding fathers met in Philadelphia and put quill to parchment in 1776. The provincial General Assembly sought to create an independent judiciary branch of government as early as 1701.3 Who knew our founding fathers had founding fathers of their own. I found out by chance while I was surfing the Web in an attempt to avoid the dishes in the sink. This new knowledge confirmed my gut feeling that present day legal arguments have been addressed by past lawyers and resolved, or partially resolved, by past judges. We might not like or agree with past determinations and seek to change them, but we cannot and should not ignore their existence. You don’t have to agree with me, but you are ethically bound to follow Rule 3.3 of the Rules of Professional Conduct (Pa.R.P.C. 303). You have to look it up? Maybe you should add an extra ethics CLE to your new year’s resolutions. This leads me to my third 2016 resolution. If I’m presented with a legal argument that lacks…, no. Let’s face it. When I am presented with a legal argument that lacks a citation, I shall not Continued on page 15

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www.chescobar.org Continued from page 14 jump to the conclusion that: (1) this lawyer is too, let’s say, “busy” to research, (2) this lawyer is padding the billing with unsubstantiated arguments, or (3) the even more worrisome conclusion, that this lawyer is trying to hide something from the court. I shall not snap to rash judgment. I shall have faith that I am being presented with a new and original legal argument that shall set the legal world aflame. I shall do my own legal research, agree that there is no precedent to find, and have my faith rewarded by being the first to read the elusive holy grail of all jurisprudence. I shall feel the earth move much like I did while reading the United States Supreme Court’s opinion on how to count chads.4 But alas, I suspect, my faith will not be rewarded and my resolution to refrain from premature judgment will fall to the wayside faster than my 2015 resolution to be nicer to my mother. (Do you think I should keep that for 2016?) In conclusion, my fourth resolution for 2016 is to be nicer to my mother. I’ll let you know which of my resolutions “bites the dust”5 first. 1

Merriam-Webster.com. Merriam-Webster, 2015. Web 31 Dec. 2015.

2

This adage has developed through time. The earliest reference I could find was in The Work of the Advocate: a Practical Treatise, Second Edition, Footnote 17, Page 390, Bobbs-Merrill Company, Indianapolis, Indiana, 1911.

3

The General Assembly attempted to pass the Judiciary Bill establishing a separate judiciary in 1701. However, this was not accomplished until 1722 when the British governor approved the creation of an independent “Supreme Court.” (See Pennsylvania Government 1701-1740: A Study of the Operation of Colonial Government, Clair Wayne Keller, University of Washington, 1967; Minutes of the Provincial Council of Pennsylvania, Vol. 2, p. 498, 08/16/1709; Vol. 3, p. 90, 03/22/1719.

4

5

I really did print out and read Bush v. Gore, 531 U.S. 98 (S.Crt. 2000). Adventures of Gil Blas of Santillane , Tobias Smollett, 1750; also see Bible, Psalms 72 (King James Version), 1611 (“lick the dust”).

CCBA MEMBER MOMENTS

McErlane, From left to right: Mark Blank, Jr., Vince Willis, Jim , Jim White Katie LaDow, Cathie Voit, Erin Patton, Alyse anie Steph Ruggerio, Jr., William Hanrahan, Charles DeTulleo, na Lutz, Stephanie Deviney, Jae Kim, Patrick McKen

Past President Breakfast

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CCBA Feature

Can I Still Own a Gun? The Making of a Prohibited Person Through Ineffective/Incompetent Legal Advice

By Adam Kraut, Esquire

ime and time again, individuals lose their Article 1, Section 21 and Second Amendment Rights due to ineffective1 or incompetent2 legal advice of their defense counsel, an unwitting prosecutor or a judge who does not know the law. As a result, these individuals become prohibited from possessing3 and purchasing firearms and ammunition with limited options to relieve their disability. As attorneys, it is our legal and ethical obligation to ensure that our clients are informed of all of the ramifications, including collateral consequences, before entering a guilty plea.

Federal Law

What are prohibiting offenses for individuals under federal law? These can be found in Section 922 of Gun Control Act (GCA)6. While the list is fairly straight forward, there are a few subsections that should be discussed in-depth. A number of these prohibitions are similar to the questions that are asked on the Firearms Transaction Record (ATF Form 4473)7 which is required to be completed when purchasing a firearm.

imprisonment for a term exceeding one year” in the pertinent part to not include A prohibited person is an individual “any state offense classified by the laws of who can no longer possess or purchase the State as a misdemeanor and punishable firearms or ammunition due to a criminal by a term of imprisonment of two years conviction or the triggering of other proFederal law states: “It shall be unlawful or less.”9 hibiting criteria4 under state and/or federal for any person who has been convicted law.5 Unfortunately, defense counsel often in any court of, a crime punishable by What does this mean? Simply put, only looks to state law, failing to review imprisonment for a term exceeding one if a person is convicted of a state law the applicable federal law, and informs a year to ship or transport in interstate or misdemeanor crime that is punishable by client that he/she is still able to possess foreign commerce, or possess in or affecting more than two years of imprisonment, the and purchase firearms, even though in commerce, any firearm or ammunition; individual is federally prohibited from reality, that individual has become a pro- or to receive any firearm or ammunition possessing and purchasing firearms or hibited person under federal law. In many which has been shipped or transported in ammunition. Individuals need not spend a occasions, a person becomes prohibited interstate or foreign commerce.”8 single night in jail in order for this disabilunder federal law long before that person ity to be triggered. Generally, in relation to becomes prohibited under state law. As The majority of individuals who find criminal convictions in Pennsylvania, a permost are acquainted with state law, this themselves as prohibited persons, are son will only become federally prohibited article will only review the application of prohibited due to this section. Federal federal law. law defines the term “crime punishable by Continued on page 17

Federal and State Law Apply

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www.chescobar.org Continued from page 16 after being convicted of a misdemeanor crime of the 1st degree or a felony.

or a friend, but they need to follow all of the applicable federal and state laws when it comes to the transfer of these items. A Other important provisions to reference Federal Firearms Licensee (FFL) can help include the Lautenburg Amendment to with the disposition of these firearms, but the GCA, which provides that a con- may not be necessary depending upon the viction as the result of a misdemeanor firearms involved and who they are being transferred to. Additionally, these individuals can still hunt, but only with a bow and arrow. There is no mechanism in the law that would allow an individual to use a firearm for mere purposes of hunting. Likewise, there is no exception that would permit a prohibited person to have a firearm for self-defense. While there are several forms of relief that are available to prohibited persons, chances of success vary greatly depending upon the reason they are prohibited.16 crime of domestic violence is a prohibiting offense.10 Also, individuals who have been involuntarily committed to a hospital under the Mental Health Procedures Act, Section 302, 303 and/or 304, are prohibited at the state and federal level.11 12 Lastly, an individual is a prohibited person, where he/she is subject to a court order that restrains him/her from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person.13 In order for the federal prohibition to apply, the individual must have received actual notice of the hearing and had an opportunity to participate.14 As a Final PFA in Pennsylvania is the only type that is not issued ex parte, it is the only one that would trigger a federal prohibition.

Your Client is Prohibited, Now What?

If you have a client who ends up becoming a prohibited person, what happens next? First, they will need to dispose of their firearms and ammunition to another individual.15 This can be a family member

See Padilla v. Kentucky, 559 U.S. 356 (2010) (Finding that an attorney’s failure to advise an immigrant client of the potential deportation consequences of a guilty plea constituted ineffective assistance of counsel).

1

Your Client Is Unsure If They Are Prohibited

If you have a client who is unsure if he/ she is prohibited, do not recommend that he/she attempt to purchase a firearm or attempt to obtain a license to carry firearms (LTCF). Approximately 90% of the time, the Pennsylvania State Police have been prosecuting individuals for making false statements when that individual has been denied the purchase of a firearm or LTCF. Therefore, it is extremely important that competent counsel research the client’s background to determine if that individual is prohibited from possessing and purchasing firearms.

See Rule 1.1 of The Rules of Professional Conduct

2

This includes both actual and constructive possession.

3

For example, an involuntary mental health commitment or protection from abuse order.

4

It is important to understand that an individual can become prohibited under both federal and state law, just federal law or just state law.

5

6

18 U.S.C. §§ 921-931

http://www.atf.gov/files/forms/ download/atf-f-4473-1.pdf

7

18 U.S.C. § 921(g)(1)

8

9

18 U.S.C. § 921(a)(20)(B) 18 U.S.C. § 922(g)(9)

10

18 Pa.C.S. § 6105(c)(4) and 18 U.S.C. § 922(g)(4)

11

There are a number of concerns about this prohibition that could take another article to explain in detail.

12

18 U.S.C. § 922(g)(8)

13

18 U.S.C. § 922(g)(8)(A)

14

There is one exception to this rule, which is extremely rare, but if an individual ends up with three DUIs in a five-year period and is not convicted of a misdemeanor of the 1st degree, the individual would be prohibited under state law from purchasing or receiving new firearms, but can keep the ones he/she has and is not prohibited under federal law. After 10 years, he or she can apply for relief from this disability.

15

Remember, it is your duty and obligation to make sure your client understands the rights that he or she may be forfeiting by entering a guilty plea. Once an individual becomes prohibited, it is an uphill battle to restore his/her rights. Adam Kraut is an attorney at Prince Law Offices, P.C. and focuses his practice around firearms and hunting law. He can be reached at akraut@princelaw.com.

These include the option for pardon, expungement or potentially Federal Firearms Relief, if funding becomes available for it again in the future.

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Dictum for Dummies CCBA MEMBER MOMENTS Swearing in Ceremony for the Honorable Allison Bell Royer, Chester County Court of Common Pleas

 O ff the Cuff  By Karyn L. Seace, Esquire

year ago my husband and I bought our dream home. It was the original farmhouse to our neighborhood and it dates back to 1778. We have been restoring it over the past year and I have done lots of research on early American life. I have come across some very interesting things and I wanted to share the origin of some expressions in this new column, which I hope will be a continuing feature of the New Matter. In this issue, I will look at the expression “off the cuff.” It fascinates me that American English has been transformed by the clothes that were once worn. Ever wonder why we “speak off the cuff ?” During the early 1870s, a new clothing craze was crossing the country. Throwaway cotton-based paper collars were introduced to high society. The fad took off as it was a fantastic way of maintaining a pristine, white collar. Men could merely remove the old collar and attach a new collar. It beat attempting to clean filthy fabric collars, as paper was cheap. Men used detachable paper “cuffs” as well. Writing notes on these attachable paper cuffs was a natural progression. Speakers of all types, including lawyers, noted down some last minute points, directly on the cuffs of their shirts. While they were speaking they would quickly glance down at the cuff and move on to the next point that they wished to include in their speech, or argument. In the first year, some nine million collars were produced. Shipments of collars and cuffs increased. At its height in 1875, one factory alone produced 21 million paper collars and five million paper cuffs annually. It employed 150 people and was one of the world’s biggest producers. Paper cuffs went completely out of fashion by the late 1870s. But the expression lives on in our lingo even today. So next time you hear the expression, you’ll know exactly from where it came.

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CCBA Feature

CONFESSIONS JUDGMENT: A Lender’s Best Friend

When Confronted with

a Defaulting Borrower By Leo Gibbons, Esquire

he ability to confess judgment is a powerful tool for a creditor. Lenders regularly employ provisions permitting confessions of judgment as a standard remedy where a borrower is in default. The language permitting the lender to confess judgment is contained in a warrant of attorney. While the mere inclusion of the warrant of attorney permitting the lender to confess judgment against a defaulting borrower, of itself, is a formidable tool, there are additional steps a lender should take to further enhance the enforcement options available to it and to maximize the power and leverage that can be brought to bear against a defaulting borrower.

recoverable from the borrower under the note. In order to enhance the lender’s ability to collect from the borrower and to fully secure the lender’s claims, the lender should require an acceleration clause in the promissory note and, in addition to the promissory note, require a mortgage, a commercial security agreement perfected through the filing of UCC financing statements and personal guaranties.

The confession of judgment provision is only effective insofar as the obligation it was meant to enforce. If only a prom- Acceleration Provision: issory note exists to document the loan, a In order to maximize the effect of a confession of judgment provision, the confession of judgment contained therein note should contain an acceleration will be limited to the monetary damages

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clause, by which the lender may declare the entire amount of the loan plus interest, costs and attorney’s fees immediately due and owing in the event of an uncured default by a borrower. In the absence of an acceleration clause a lender may only enter judgment for the delinquent payments.

Mortgage:

A mortgage is employed to secure the note with real estate owned by the borrower. It gives the lender a priority over other creditors in a tangible

Continued on page 21


www.chescobar.org Continued from page 20 and valuable asset of the debtor. The mortgage can and should contain a confession of judgment for possession which would permit the lender to take possession of the mortgaged real estate in the event of a default even prior to any sheriff’s sale of the real estate or even a final judgment on the merits of the lender’s claim.

Security Agreement:

A commercial security agreement perfected by the filing of a UCC financing statement or as otherwise provided by law, documents and records the lender’s lien on the business assets of the borrower. When properly perfected, it gives the lender priority over other creditors of the borrower in the pledged assets.

Personal Guaranties:

Personal guaranties of the owner of the borrower along with that of the owner’s spouse will provide additional

security for the lender. Any guaranties of the borrower’s obligation should additionally contain a confession of judgment for money to further protect the lender. The lender may even require that the guarantors pledge additional real estate or other assets, including the primary residence of the owner and the owner’s spouse.

The lender’s rights and ability to execute against debtor’s property, and to do so in The pledge of the assets belonging an expeditious fashion, can nonetheless be to the business and the business owner greatly enhanced by the lender properly not only provide additional security and documenting and securing the loan. By value for the loan, but provide lender securing property of the borrower and with a priority over other creditors in guarantors, the lender can also secure for these assets and greatly enhance a itself a priority in the pledged assets relalender’s ability to recover after any tive to other creditors of the borrower. A default by borrower. lender’s rights are also enhanced where it is mindful of certain pitfalls that have beAs illustrated herein, a confession of fallen lenders who have either not properly judgment is a powerful tool that can documented the loans or not anticipated greatly enhance a lender’s ability to enforce potential difficulties in enforcement and its rights against a defaulting borrower. collection against defaulting borrowers.

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Save Our Environment

Arsenal Coal Redux—

Doctrine of Exhaustion of Administrative Remedies Trumped by the PA Declaratory Judgment Act By John R. Embick, Esquire, Chair, Environmental Law Section

n late December, 2015, the Pa Supreme Court issued an interesting decision that relates to the Doctrine of Exhaustion of Administrative Remedies, in the case of EQT Production Company v. PaDEP, No. 15 MAP 2015, decided December 29, 2015 (“EPC”). The case also addressed an important issue related to the interpretation of the civil penalty provisions of the Clean Streams Law, 35 P.S. §§ 691.1, et seq. (“CSL”), §§ 602(d) and 605. The case was decided by the currently decimated Pennsylvania Supreme Court on a 3 to 1 vote. The decision was authored by Chief Justice Saylor, with Justices Todd and Stevens concurring, and Justice Baer dissenting. Justice Eakin, recently suspended by the Pa Court of Judicial Discipline, did not participate in the decision. EPC, a natural gas producer, owned and operated an underground storage facility for containing spent fracking fluid. The underground storage facility leaked, and pollutants, as defined by the Clean Streams Law, were released into the soil underlying the storage facility, and thence were discharged into the waters of the Commonwealth. EPC notified PaDEP of the release, stopped the leak, and sought to address the remaining contamination under the Pa Brownfields Remediation Act, 35 P.S. §§6026.101 et seq., also known as “Act 2.” PaDEP also threatened to assess a civil penalty under the CSL for the release. Act

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2 specifically allows the imposition of civil penalties assessable under other laws. Under section 605(a) of the CSL, each day on which a violation occurs can be considered a separate offense, and each violation carries a maximum penalty of $10,000 per day. PaDEP took the position that the release of pollutants continued, even after the discrete leak was plugged, because pollutants continually are released from contaminated soil, into the ground water, the latter which is part of the waters of the Commonwealth. Further, PaDEP also took the position that each day that contamination continued to be present in the water of the Commonwealth is a continuing violation. This can be a very heavy enforcement stick. Accordingly, EPC would remain at risk for the imposition of continuing, daily penalties until the pollution was cleaned up, or arguably until an Act 2 release was obtained. There is no safe harbor which would toll or suspend the accrual of penalties pending the outcome of the litigation. EPC took the position that civil penalties could be assessed only so long as contaminants were discharged from the underground storage impoundment. PaDEP could, in the exercise of its enforcement discretion, limit the imposition of civil penalties both in terms of Continued on page 23


www.chescobar.org Continued from page 22 amount and duration. For decades, PaDEP has utilized a civil penalty assessment procedure to determine the amount of civil penalties in CSL matters, and the procedure takes into account such factors as duration, concentration, harm, and cooperation, etc. Under the provisions of the CSL, PaDEP must file a complaint for civil penalties under the CSL before the Pa Environmental Hearing Board (“EHB”) for a determination. The EHB then holds a hearing at which PaDEP must prove the violations and the basis for the assessment of civil penalties. Depending on the outcome, the parties may then take an appeal to Commonwealth Court, and possibly beyond. EPC elected to test PaDEP’s interpretation of the Clean Streams Law penalties by initiating a Declaratory Judgment Act action in Commonwealth Court. See, 42 Pa.C.S. §§7531-7541 (“DJA”). EPC had an administrative opportunity to test PaDEP’s legal theory by defending against a CSL civil penalty complaint, which PaDEP filed with the EHB (the civil penalty complaint was filed with the EHB two weeks after the DJA action was initiated by EPC). The EHB has jurisdiction to hear appeals from final actions taken by PaDEP, including civil penalty complaints filed under the provisions of the CSL. In preliminary objections, PaDEP asked Commonwealth Court to dismiss the DJA complaint, arguing that EPC possessed ample administrative remedies which EPC must first exhaust before EPC initiated a DJA action. Section §7541(c)(2) of the DJA indicates that declaratory relief is unavailable with respect to proceedings within the exclusive jurisdiction of administrative tribunals. Notwithstanding §7541(c)(2) of the DJA, the courts have established a number of prerequisites, which seemingly have carved out a number of exceptions. See generally, Commonwealth, Office of the Governor v. Donahue, 626 Pa. 437, 448, 98 A.3d 1223, 1229 (2014). EPC averred that its cause was similar to that addressed in Donahue in that the legal question that it posed was adequately developed and ripe for judicial review; it would suffer direct, immediate, and substantial hardship if review was delayed; the question was purely legal (and not factual) and the action would settle immediate controversies. So, the Court had to consider whether the case presented the kind of issues which warrant the by-passing of the available administrative remedies. It looks like the Pa Supreme Court felt that the factors of: (1) large and continuing civil penalties; (2) a pure issue of law; (3) EPC’s inability to initiate an administrative remedy (at the time EPC filed the DJA action, PaDEP had not initiated a civil penalty action before the EHB); and (4) existence of by-pass case precedent, all combined to trump the available administrative remedy. Continued on page 24 New Matter

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Save Our Environment continued… Continued from page 23 The Court seemed to agree that the EPC matter was analogous to the issue presented in Sackett v. EPA, 566 U.S. __, 132 S. Ct. 1367 (2012). In Sackett, the U.S. Supreme Court ruled that U.S. EPA (“EPA”) compliance orders, issued under the authority of the Federal Clean Water Act (“CWA”), may be immediately appealed under the provisions of the Administrative Procedures Act (“APA”). Prior to this holding, the EPA, and many courts, held the view that such compliance orders could only be reviewed at the time when the agency sought to enforce the order. During this time prior to enforcement, heavy civil penalties assessable under the CWA presumably would accumulate. Sackett raised an issue often viewed as companion to the exhaustion-of-administrative-remedies issue, i.e., the pre-enforcement review doctrine. The Pa High Court also turned to the Arsenal Coal pre-enforcement review doctrine for support. See, Arsenal Coal Co. v. Commonwealth, 505 Pa. 198, 200-01, 477 A.2d 1333, 1335 (1984). The Arsenal Coal case involved an attack by the coal mining industry on then newly promulgated rules and regulations governing the extraction and processing of underground coal. Arsenal Coal is the seminal case in the pre-enforcement review doctrine line for evaluating matters which may be filed within Commonwealth Court’s original jurisdiction and which may thus by-pass the available administrative remedies.

direct, immediate, and substantial to create a case or controversy justifying pre-enforcement judicial review via a declaratory judgment proceeding, and that exhaustion of administrative remedies relative to the issues of statutory interpretation that the company has presented was unnecessary.” Slip Op. at 12. It looks to me like the three justices were primarily motivated by the specter of big civil penalties and the seeming unfairness of allowing the penalties to mount up while the company challenged the legal theory of the regulatory agency. Justice Baer penned a dissent in which he opined that under established principles, EPC’s case had not yet matured into an actual case or controversy, since PaDEP’s legal position on penalties associated with continuing violations is not determinative, and the EHB must decide the issue. Justice Baer found that the administrative remedy was adequate and suitable, and therefore should be followed.

In Arsenal Coal, the Pa. Supreme Court allowed a challenge to the coal mining regulations to proceed in Commonwealth Court prior to the time when the agency might seek to enforce the regulations (and any challenges would subsequently be heard before the EHB). In remanding the EPC case to Commonwealth Court, the Pa. High Court stated: “We hold that the impact of the Department’s threat of multi-million dollar assessments against EPC was sufficiently

So, it appears as if the Pa Supreme Court has created another limited means to challenge PaDEP action (or, in this case, a legal position held by PaDEP) outside of the path of available administrative remedies. Money talks.

CCBA MEMBER MOMENTS First Annual CCBA Advocacy Academy

Hon. Juan R. Sanchez

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CCBA Feature

www.chescobar.org

End of File and Suspend By Karyn L. Seace, Esquire

I

n 2000 Congress intro- more later (retiree’s figure grows by 8% duced a new concept per year in the form of so called “delayed called “voluntary” suspen- retirement credits”). Utilizing this strategy sion of benefits. Theoretically, those retirees allows both the retiree and the spouse to who had already started collecting Social delay receiving retirement benefits on their Security benefits could “voluntarily” stop own records, meaning that they each get receiving their payments for any month delayed retirement credits. for which they had not already received a payment. This would also include any retPresident Obama’s signature of the roactive benefits that might be due. In so Bipartisan Budget Act of 2015, which doing, they would earn “delayed retirement occurred on November 2, 2015, solidified credits.” As is the case with everything, Congress’ decision to end file and suspend. soon people figured out how to use this As a result, after May 1, 2016, it will no process to their advantage by claiming longer be possible to file a “restricted apnow (spousal benefits) and claiming even plication” (for spousal benefits only). If a

retiree suspends his benefits, it will suspend every benefit to all other persons collecting on that retiree’s earnings record. However, this new rule will not apply to: (i) anyone who is age 62 or older in 2015, or (ii) all retirees currently using this mechanism as they are grandfathered. Voluntary suspension will still be viable for purposes of getting on Medicare, or for someone who started benefits prematurely and has now realized the error of their ways. (The rule that after a year has passed it is too late to stop the benefits is still in effect.)

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Your Bar Foundation

The Case of

Passmore Williamson By Nancy J. Glidden, Esquire

n the issue of slavery in the 1850s, Pennsylvania has been described as “a transitional space with an ambivalent population.”1 Pennsylvania was transitional because though it was “free,” the nearby states of Maryland and Delaware were not, and as a result, distinctions between free and slave were sometimes blurred along with the sympathies of the population. The sympathies of Passmore Williamson, a native of Chester County, were squarely within the anti-slavery movement. In 1855 Williamson was one of four members (and the only white member) of the Vigilance Committee operated by the Pennsylvania AntiSlavery Society. Members of the Committee provided assistance to slaves passing through Philadelphia. On July 18, 1855, while then living in Philadelphia, Williamson was called to action in the case of one Jane Johnson. Johnson was a slave owned by one John H. Wheeler of North Carolina. At the time, Wheeler was the U.S. Ambassador to Nicaragua and he was travelling from Washington, DC through Philadelphia with Johnson and her two children on his way to New York. Word of Johnson’s desire to be free reached Williamson. Acting on a tip Williamson boarded a ferry that was preparing to depart from Philadelphia where he then located Johnson and her two children in the company of Wheeler. He escorted Johnson (her two children in tow) off the boat to a waiting carriage. In response to Wheeler’s vigorous protests he offered Wheeler his card. A contemporaneous account

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states that Williamson “behaved very judiciously in the affair, and discharged the duty imposed on him, by his office in a manner becoming its importance.”2 The legal support for Williamson’s actions was a statute passed by the Pennsylvania legislature on March 3, 1847, which repealed the right of persons to hold slaves temporarily within the Commonwealth. While slavery had been outlawed in Pennsylvania since 1780, until the action taken in 1847, there remained certain exceptions that preserved the status of slaves temporarily residing in or passing through the Commonwealth. It was also significant that Johnson was not escaping from a slave state into Pennsylvania but had instead been brought into Pennsylvania by Wheeler—a fact which negated the application of the Fugitive Slave Law of 1850. By application of Pennsylvania law Johnson was entitled to her freedom. Perhaps realizing his tenuous legal position, Wheeler creatively sought Johnson’s return by filing a writ of habeas corpus in the U.S. District Court seeking to have Williamson produce Johnson to the Court. It is said that Williamson truthfully did not know of Johnson’s whereabouts and therefore could not comply with the Court’s order. Williamson was held in contempt and was sent to Moyamensing Prison in Philadelphia on July 27, 1855, where he remained until his release on November 3, 1855. His incarceration was a boom to the anti-slavery movement.

While at Moyamensing, Williamson kept a “Visitors’ Book” which chronicled his visitors–nearly five hundred in all hailing from fourteen states, as Continued on page 27


www.chescobar.org Continued from page 26 well as Canada and Ireland. Among his visitors were such notable anti-slavery figures as Frederick Douglass, Harriet Tubman and Lucretia Mott. The Visitors’ Book also contains letters of support written to Williamson from Oberlin College and the British and Foreign Anti-Slavery Society. The book came into the possession of the Chester County Historical Society which, despite being a careful custodian, could not prevent the effects of the ravages of time upon the pages. In 2013, the Visitors’ Book was listed among Pennsylvania’s Top Ten Endangered Artifacts sparking a campaign to raise sufficient funds for its restoration and preservation. The Chester County Bar Foundation made a grant of $5,000.00 to support the effort.

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

Upcoming Events For more details on all upcoming meetings and events, go to: www.chescobar.org/events

February

Feb. 16–17 �������� Mock Trial, 4 – 9 pm Chester County Justice Center Feb. 19 �������������� President’s Dinner Feb. 24 �������������� Stively Inn of Court, 5 – 8 pm The Mansion at Radley Run Country Club

March

Mar. 31 �������������� Spring Bench Bar Conference 8 am – 4 pm, Desmond Hotel

As for Passmore Williamson’s case, it was contemporaneously observed that “it will certainly be regarded as a barbarism of the nineteenth century, should it be preserved for the criticism of a wiser and better generation.”3 Through the good works of the Chester County Historical Society, the grant from the Chester County Bar Foundation, and the contributions of many other donors, Passmore Williamson’s story and place in the history of the anti-slavery movement has in fact been preserved.

1

Quakers & Slavery Digitization Project, Rescue of Jane Johnson, by Celia Caust-Ellenbogen

2

Narrative of Facts in the Case of Passmore Williamson, published by The Pennsylvania Anti-Slavery Society, 1855 (Oberlin College Archives)

3

Narrative of Facts in the Case of Passmore Williamson, published by The Pennsylvania Anti-Slavery Society, 1855 (Oberlin College Archives)

May

May 19 ��������������� Eastern District Swearing In Ceremony, 9 am – 4 pm, Federal Courthouse

June

Jun. 16–17 ��������� Bar Sail, Baltimore Inner Harbor Jun. 25 ��������������� Trial Run 5K, West Chester Borough

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The Blank Page

Retirement

By Mark Blank, Jr., Esquire

hy should you read any further? I know, you are too young to think about retirement; or, you are going to work forever; or, maybe, what relevance has it at this stage of my life?

this retirement beauty. (By the way, the SERS is the same system which applies to Judges, MDJs, Attorney Generals, their deputies and Pennsylvania’s Public School Teachers.)

Well, let me start off by telling you a story. Once upon a time, there was a little boy (in his early twenties), who landed his first job (not counting stints as a camp counselor, factory worker, substitute teacher, music teacher or waiving a flag in a construction area). The job was as an instructor at one of Pennsylvania’s State Colleges. As he met with the personnel (human resources) director, he noticed that one of his payroll deductions was for retirement. “Why?” he thought. “I am only going to be here for one semester. [He was being hired as a temporary for somebody who was going on sabbatical.] And besides, I need the money now. Who cares about retirement?” Well, the job became permanent, and the little boy grew into a man and climbed the ladder from Instructor, to Assistant, then Associate and, finally, Full Professor. ThirtyEight and One-Half years after he signed on for what then was temporary, he retired with a State Employee Retirement System (SERS) pension of the defined benefits category.

Now, let us get to the point, if we have not already gotten there. You are a lawyer (or, as the case may be, you are not). You are just out of law school and you have a lot of hard work ahead. Maybe you think the same way as our little boy did. The fact is, some day you will be in your sixties and even if you are going to work until the day that you die, you still want to live comfortably and know that you can retire if you want to or, in some cases, if you have to (e.g., loss of employment, health issues, etc.).

It was not until he was at the college for twenty or so years, and in his forties, that he realized the benefit and appreciated

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What if there is an untimely death? I recall one member of the Bar Association died and left his wife indigent. (The Bar Association set up a fund for her.) Another lawyer died at the age of 43. But that lawyer had been putting 25% of his income (he was a solo personal injury lawyer) into savings and retirement. After his death, his wife and children were taken care of even without the life insurance that he had maintained. Continued on page 29


www.chescobar.org Continued from page 28 Finally, in my own practice, I see too many people who live from paycheck to paycheck and never save. Any profit goes into housing and fun things. (Furniture, big flat screen television sets, etc.) To this writer, savings is more important than housing. This is not to say that housing should be sacrificed. Adequate housing is a necessity. But savings is also a necessity. And if that beautiful house and nice furnishings are going to drive you to the paycheck/ paycheck syndrome and your earnings just go towards paying bills, then think twice. (Hey, what about the kids’ college? Want to go into debt with one of those parent plus loans?) Now, one last story before I close. This time it is about a little girl. She was a brilliant student at Columbia University’s Barnard College. She was a top student at NYU Law School, where she was Editor in Chief of one of the law school’s journals. She served as a law clerk to a distinguished United States District Judge in the Southern District of New York. Now she is seventy years old, owns nothing and lives on $1,031.00 in Social Security each month. She receives assistance from her sister, her estranged husband and her son. Now, am I retired? No. But I have been thinking about it, talking about it and planning for it for twenty years; I just have not gotten around to it yet.

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CCBA Feature

Ex Post Facto

In the Pennsylvania Supreme Court

By Shannon K. McDonald, Esquire

he case of Commonwealth v. Rose contains some particularly brutal facts, regarding two men’s actions against a female victim in the East Liberty neighborhood of Pittsburgh. The crime occurred in 1993, and the victim remained in a vegetative state as a result of the assault until 2007, when she died. The defendant, Rose, was convicted in 1994 of attempted murder, aggravated assault, involuntary deviate sexual intercourse, recklessly endangering another person, and criminal conspiracy. He received 15–30 years aggregate for those crimes.

an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” 3 U.S. (3 Dall.) 386, 390 (1798).

In 2007, after many years on life support, the victim succumbed and passed away. Rose was charged with criminal homicide and a jury found him guilty of third degree murder. At the time of the commission of the assault, the maximum penalty for third Rose’s sentence implicates the third portion; he alleged that the degree murder was 10–20 years. However, in the interim 14 years, law changed and inflicted a greater punishment than would be the legislature increased the maximum penalty for third degree allowable at the time of his commission, violating Ex Post Facto. murder to 20–40 years. Rose appealed his 20–40 year sentence, Of course, the Commonwealth argued that in fact there was no alleging a violation of the Ex Post Facto clause. violation of ex post facto, because the result of the crime is what the defendant was being sentenced for, and the result took place Ex post facto is an old, and when correctly referred to, obscure in 2007, when the punishment was clearly 20-40. area of the law. The best definition springs from a case more than two centuries ago: Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). The After extensively analyzing a few cases, the Supreme Court of description of the concept is four part. “1st. Every law that makes Pennsylvania agreed with Rose. Looking to the scant caselaw in Pennsylvania, North Carolina, and others, the Supreme Court concluded that ex post facto applies to prohibit the legislature from retroactively increasing the punishment for prior bad acts—not just for completed crimes, but for all of the bad acts implicated in that course of conduct. The Court stated: “we hold that, where a crime requires both a criminal act and a subsequent result (e.g., a homicide), the imposition of a more severe sentence based on a statute that was amended after the act was committed, but prior to the result of that act, violates the Ex Post Facto prohibition.” Therefore, where the result of a crime is separated by time and law from the result of the crime, get out your Ex Post Facto rules; the obscure clause may finally actually apply.

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New Matter Spring 2016  
New Matter Spring 2016  

A publication of the Chester County Bar Association