THE OFFICIAL PUBLICATION OF THE CHESTER COUNTY BAR ASSOCIATION • CHESTER COUNTY, PA
COME SAIL AWAY with the Chester County Bar Association
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New Matter CCBA Officers Lisa Comber Hall, President Craig Styer, President-Elect Bill Wilson, Vice President Christine Zaccarelli, Treasurer Mary-Ellen Allen, Secretary New Matter Committee Charles DeTulleo, Editor Rami Bishay Mark Blank, Jr. Keith Boggess Colleen Frens Angela Halse J. Stoddard Hayes Andrew Lehr Shannon McDonald John McKenna Kim Denise Morton Mary Wade Myers Kevin Ryan Alan Vaskas Bill Wilson CCBA Staff Wendy Hoffman Executive Director Emily Boulanger Communications Coordinator The Chester County Bar Association’s monthly 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 maybe reproduced electronically or in print without the expressed written permission of the publisher or editor.
COME SAIL AWAY WITH THE CCBA
FEATURES For the Love of Madeline........................... 4 Come Sail Away with the CCBA................. 5 Unusually Common Conundrum PUCC Article 3 in Foreclosure Proceedings........ 6 International Mergers and Acquisitions Require Detail..............................................8 Bar Association Receives Award.............11 Commonwealth Court Visit.....................12 Interview with the Honorable Jeffrey Sommer.........................................14 No More “Error in Judgement” Defense In Medical Malpractice Cases.......................16 Supreme Court Justice Thurgood Marshall Had Chester County Ties..........................24 New Matter Archives................................38
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Attorneys Who Made a Difference William J. Donavan, Esq.
IN EVERY ISSUE Your Bar Foundation.................................11 From the Bench.........................................18 The Blank Page..........................................19 President’s Message.................................20 Y L Details...................................................23 Save Our Environment.............................26 Attorneys Who Made a Difference.........28 Mary’s Country Corner..............................33 Tech Tips.....................................................34 CCBA Happenings & Events......................39
If you have an idea for an article, or would like to submit content, please contact Emily Boulanger at firstname.lastname@example.org or (610) 692-1889.
For the Love of Madeline –
2nd Annual Jewelry Auction to Benefit Legal Aid of Southeastern Pennsylvania By Amanda Lamb (Madeline’s daughter)
Two of the things that my mother believed in devoutly were: do the best with what you have and help others. As long as I can remember she dressed to the nines. Her belt, shoes and purse always matched. Her hair and makeup were “done” and her outfits always included a sparkle, a splash of bling, something that made you look twice (at least) and notice her. While I didn’t fall right in line with her footsteps when it came to my outward appearance, I did learn to admire and respect her unique fashion sense. To Madeline, her jewelry was about more than just accessorizing an outfit, it was a statement, wearable art, the theatre of everyday life that made it so much more interesting. Her jewelry not only made people notice her, but it was a conversation starter. Behind every piece there was a story about where it came from and what she was doing when she bought it. And she remembered every single story.
Know when you wear a piece of her jewelry as I do each and every day, it will give you good karma, special powers to be seen, to be noticed and to notice others who may need your help.
Thank you for supporting Legal Aid and for remembering Madeline in this very special way.
Our best bidder at the “For the Love of Madeline” event (Charles DeTulleo)
But as much as she loved her jewelry, she wouldn’t hesitate for a moment to unclasp one of her fancy necklaces and give it to someone who admired it saying: “I’ve got another one just like it (and she did, believe me), and it would look so good on you!” I know this firsthand because I saw her do it many times for friends and for strangers she had just met—a waitress, a hotel desk clerk, anyone who might be in her line of sight and in need of a little sparkle. So that’s what this auction is really all about, combining these passions —Madeline’s passion for putting her best foot forward and her passion for helping others.
Stayed tuned for an upcoming book about Madeline called “The Living Room.” See www.alambauthor.com for details. 4|
COME SAIL AWAY with the CCBA – ALL Members Welcome! Bar Sail event: June 12–13…Annapolis, MD By Marc Lieberman, Esq.
I’ve got a question for everyone: what are you working for? I’m not talking about your rate, how much you make, or “Why even bother working?” The question is: “What is your goal?” Whatever your goal is, as an attorney you are likely working long hard days and dealing with quite a bit of stress. It’s no secret that my fantasy goal is to save up enough money to buy a boat and have the time to sail it. Used boats have gotten relatively cheap compared to what they were a few years ago. Really, I may be able to afford a small old boat that would work for me right now. The part that doesn’t work for me is, “finding the time to sail it.” Reaching that goal is a long way off. In the meantime, I’m going to keep practicing law. It’s something I like to do, and I will find stress relief wherever I can. Stress relief comes in all shapes and sizes. You can go on vacation, have a hobby, and sometimes just leaving the office can let you breathe a little easier. The Chester County Bar Association has been a tremendous resource in providing breaks for stress relief. We have numerous events throughout the year, and I believe the Chester County Bar Association is an anomaly when it comes to the number of events held. Other bar associations don’t have nearly as many events, and we believe that our events result in a closer knit legal community. Events provide us with an opportunity to commiserate with others dealing with the same issues—issues our non-lawyer friends and family can’t be as empathetic with. Some events relieve more stress than others. Of these events, I find the Bar Sail to be the best stress relief.
So what IS the “Bar Sail”? The Chester County Bar Association’s Annual Bar Sail is a 2-day sailing event on the Chesapeake Bay. You don’t need a boat, you don’t need to know someone with a boat, and you don’t even have to know how to sail. We can find a spot for you on a boat. You can sit on the boat and do nothing or help out. Sailboats AND powerboats are welcome. This year we will sail to the Annapolis Yacht Basin in Annapolis, Maryland, June 12 - 13. We will gather on the marina dock for an impromptu party and then will head to Buddy’s Crabs & Ribs (100 Main Street) for a fabulous crab and rib feast! After that you can seek out whatever night life exists in Annapolis – and there’s a lot. Most of the sailors stay at the hotel (I prefer to sleep on the boat I’ve chartered). This year we’re staying at the Annapolis Marriott Waterfront (80 Compromise Street). We then sail back the next morning. If you don’t like boats, you can drive down for the party and dinner on Thursday, June 12. If you don’t like crabs, the buffet will also have shrimp, ribs, chicken and lots of other great fixins’. It’s easy to sign up—watch for sign-up information via email. Spouses and significant others are welcome. If you’re saying to yourself, “I don’t have the time,” that is exactly why you should go. Sometimes, you just have to plan a break in your schedule and catch up with things when you get back. While practicing law, life seems to be going by faster than the speed limit allows. Watching the world go by sitting in a boat when it’s 80 degrees at 6 knots is what we all need.
Unusually Common Conundrum: PUCC Article 3 in Foreclosure Proceedings By Thomas D. Bielli, Esq. and Shannon Dougherty, Esq. Thomas D. Bielli is an attorney with the firm of O’Kelly Ersnt & Bielli, LLC, as well as a Military Assistance Project Volunteer Attorney
An old legal aphorism states, “If the facts are on your side, pound the facts. If the law is on your side, pound the law. If neither are on your side, pound the table [and yell as loud as you can].”
Facts In litigation, the facts are usually simple…they are either in your favor or against you. In mortgage foreclosure proceedings, for example, your client either paid the bank or it did not. As such, this article is
designed to look beyond the particulars and find factual similarities, which will provide you with a hammer to add to your foreclosure defense toolbox. JP Morgan Chase Bank, N.A. v. Murray is a typical foreclosure case that can teach plaintiffs and defendants, alike, what is required to succeed in mortgage foreclosure proceedings. Like many mortgagors, Francis X. Murray (“Murray”) borrowed money from a bank and offered his primary residence as collateral (“Mortgage”). JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1258 (Pa. Super. 2013). Like many foreclosure cases, when Murray failed to make payments to that bank’s successor in interest (“Bank”), the Bank took action to foreclose upon Murray’s Mortgage. Id. Murray’s Mortgage, similar to most in recent decades, passed hands a number of
times before the Bank attempted to foreclose upon the Mortgage. Id. On March 26, 2012, the Chester County Court of Common Pleas entered an in rem summary judgment against Murray and in favor of the Bank, J.P. Morgan Chase Bank. Id. Murray appealed the judgment, and on March 18, 2013, the Superior Court of Pennsylvania reversed the order granting summary judgment in favor of the Bank because the Court was not convinced that the Bank was a true party in interest. Id.
Law More important than any particular fact is the litigator’s ability to apply the facts and present a legally relevant argument. Initially, for example, a litigator may argue that the case should be dismissed for failure to state a claim, for lack of standing, or for any other reason
described in Pennsylvania Rule of Civil Procedure 1028. Unless you were fortunate, or should I say misfortunate, enough to suffer through a negotiable instruments class in law school, it is unlikely that you incorporate Article 3 of the Pennsylvania Uniform Commercial Code (PUCC) into your preliminary objections. Article 3 discusses negotiable instruments, such as checks and promissory notes. Article 3 also defines “holders in due course,” the parties entitled to assert their rights under the negotiable instruments. Few litigators argue the law of negotiable instruments during trials. Murray, however, suggests that all litigators perform at least a cursory review of Article 3, especially those who litigate foreclosure actions. As we are all aware, only certain parties have standing, or the legal capacity, to sue one another. In Murray, the Pennsylvania Superior Court: 1) finds that a mortgage note is a negotiable instrument; and 2) applies Article 3 of the PUCC to find that a bank failed to establish standing. Article 3 of the PUCC requires a party to be the holder in due course of the underlying note before it can foreclose upon the Mortgage. 13 Pa.C.S. §§ 1101, et seq. Under the PUCC, a holder in due course is a party who takes a facially authentic instrument for value and in good faith. Id. at § 3302. Whether a party, who is not privy to the contract, is the holder in due course of a mortgage note can be demonstrated in two ways: 1) with an allonge containing a blank endorsement; or 2) through a series of assignments establishing a chain of custody for the underlying note. In Murray, the Bank failed to produce the appropriate documentation. Accordingly, the Superior Court reversed the order granting summary judgment and remanded the matter to the Chester County Court of Common Pleas so that the Bank could demonstrate that it was a holder in due course, and thus the true party in interest, who has standing to maintain the foreclosure action.
Conclusion After years of mortgage securitization, Article 3 of the PUCC provides a valuable argument for a defendant in a mortgage foreclosure action. It validates claims challenging the legitimacy of assignments, and provides hope to parties facing the loss of their home. Litigators may turn to Murray if a plaintiff appears to be unjustifiably unreasonable. For example, if your foreclosure client’s home contains equity and the bank refuses to refinance. But, as with any other situation in life, when all else fails, don’t forget to pound the table and yell as loud as you can.
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International Mergers and Acquisitions Require Detail By J. Michael Considine, Esq. International Mergers and Acquisitions require care, said Raymond D. Agran, a business partner at Saul Ewing, to the International Business Initiative. Define specifically the assets being sold and whether it includes debt, liabilities, receivables, long-term supply, agency and distributorship agreements. Local counsel in-country must be retained as there are many traps for the unwary. Due diligence is required as to violations of law, Foreign Corrupt Practices Act (FCPA) and U.K. Anti-Bribery Law violations, export controls, money laundering laws, the need in many jurisdictions for registration of distributors and agents, and compliance with reporting requirements regarding overseas agents. Educate clients and their agents as to FCPA, which permits paying for a filing but often not to grant approvals involving an exercise of discretion. Department of Justice guidelines offer assistance as to what is prohibited and what should be stated in agreements. In some countries a “finder” may be characterized as a broker/dealer. Agency and Distribution Agreements must be examined to determine if the United Nations Code for the International Sale of Goods (CISG) applies. Antitrust issues may apply especially in Germany and France even for the simplest M & A. Labor issues are important in Eastern Europe and Asia where it is difficult to fire employees.
The Office of Foreign Assets Control and Export controls (for applicable foreign assets or exports) and dispute resolution alternatives must be considered. International Chamber of Commerce (ICC) arbitration provisions are expensive. American Arbitration Association (AAA) rules do not require an arbitrator not to be associated with the parties so a clause prohibiting this should be put in the agreement (“AAA rules, as altered by Exhibit A.”) A mediator may be used before arbitration. Distinguished Neutrals are a good source for neutrals. Where no agent or distributor is used, terms and conditions must reflect local law. State what law applies. French law requires original signatures, warranties such as fitness for a particular purpose and their disclaimers, a security interest in movables and a statement of the effect of bankruptcy. More frequently a distribution agreement is used to sell to another who resells the product there. Some countries require registration of distributors. Compliance should be required in writing. Different laws may apply to distributors as opposed to agents. EU law may limit contract terms. European Commission prior authorization may be required unless the agreement does not contain objectionable clauses. Agreements not to manufacture or distribute products which are competitive with products
www.chescobar.org covered by an exclusive distribution agreement, to purchase the products only from the supplier and for the purpose of resale, limiting the ability of the distributor to advertise or establish a branch for distribution outside of the named territory, requiring purchase of a minimum quality or an entire product line, to use licensed trademarks or to promote and advertise, to assure minimum stock and provide technical support and service after the sale, restricting the resale price or territory (unless specifically retained), preventing use as spare parts (if incorporated into other products) or for a noncompete exceeding 5 years, prohibiting further resale after expiration (unless limited to competitive products, the territory granted or if indispensable to endure protection of know-how previously transferred) may disqualify a deal from EU block exemptions. Stating “recommended retail price” or restricting when territory is retained
by another is permissible. Consider a fixed buy-out clause unless there is termination for cause. Upon termination, the seller will buy out what is left. An agent obtains orders fulfilled by the principal, who has authority to accept or reject an offer, and is paid a commission. There is better control over terms but more hassles. Most European and Middle Eastern countries have commercial agent registration requirements. In the absence of gross negligence, upon termination the agent must be paid for 12-36 months plus costs directly related to lost business, such as terminating leases and employees, and fees upon termination. 1-3 months’ notice may be required. Unless the contract explicitly states the CISG does not apply, it may, so state it does not apply or it may. Under the CISG additional terms may be binding unless they are objected to. Irrevocable
offers may last longer than the 3 months under the UCC if so stated or if the offeree relied upon it. The statute of frauds is less stringent. A price term is necessary. A contract forms upon receipt. An oral contract is not binding until the offeree receives the acceptance. It is much easier to introduce parol evidence. Nonconforming goods must be accepted unless there is a fundamental breach. Adequate assurances of performance may not be demanded unless the other party fails in a substantial way to perform. The seller has a much broader right and more time to cure. Either party to claim force majeure (the UCC only allows seller). State “this contract shall be governed by the Uniform Commercial Code as adopted by the State of New York and not by the [CISG].”
continued on page 10
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CCBA Feature International Mergers... continued from page 9 The EU and other states’ antitrust laws address abuse or dominance not just agreements not to compete or attempts to monopolize. “Market” may be defined narrowly (1 company with a 33% share or 5 with 66%.) Fines can be substantial—e.g., 10% of worldwide turnover. Labor laws protect employees more vigorously overseas, especially in Eastern Europe. There are severance obligations and “works council” directives re major changes in business. US discrimination laws may apply to citizens working abroad.
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Brazil and China require government approval for inlicensing. India requires a compulsory license required to last after a company pulls out of India. Grant-backs of improvements by the subsidiary are required in the Philippines, Colombia and Portugal. Exclusive grant-backs may violate EU anticompetition law. Minimum royalties not tied to actual commercial exploitation are prohibited in Portugal and Nigeria and regulated in China, Brazil and the Philippines. Excessive royalties may violate EU law especially if the company has a dominant position (e.g., Google). Nations limit the period for payment of royalties even if a patent is in place—India (8 years for foreign exchange and 14 for rupees)—or the term of a license (e.g. Brazil, 5 years for know-how, China and Philippines, 10 years.) Consider asking for “in kind” royalties of raw materials. Post termination limitations including non-competes are unenforceable in Brazil, India, China and Peru. Arbitration can be more expensive. The number of depositions or volume of documents requested may be limited. It may take 1-3 years to get an award. Often lesser value disputes go to arbitration and those with greater value, to federal court. Governing law for disputes and limitations of liability should be included. Terms of payment must be stated explicitly whether by site draft, letter of credit or escrow. Payment should be made by wire transfer with a statement who pays the wire fees. The buyer should have a means of inspection before payment is made. Delivery obligations must be made clear. F.O.B. seller’s port indicates the risk is on buyer so buy insurance. J. Michael Considine, Jr. is chair of the Chester County Bar Association International Business Section and of the International Business Initiative, a task force of the International Law Committee of the Philadelphia Bar Association which regularly sponsors presentations on issues of international business. He can be reached at 215-963-1555 extension 828 or at email@example.com.
YOUR Bar Foundation
Leaving your Legacyâ&#x20AC;ŚWILL YOU? Will you include the Chester County Bar Foundation in your estate plans to forever be a part of the Foundationâ&#x20AC;&#x2122;s Mission to help support initiatives that help Chester County citizens understand, gain access to and benefit from our legal system? Will you consider a contribution to the Chester County Bar Foundation in memory of a deceased colleague? Will you let your loved ones know that in lieu of flowers you would like to invite memorial contributions to the Chester County Bar Foundation in your obituary? Making a bequest in your will requires a short paragraph stating the Chester County Bar Foundation as your charitable beneficiary as well as the amount you would like to gift. Will you speak to us about leaving your legacy? Contact Wendy Hoffman at firstname.lastname@example.org or 610.692.1889 for more information. Will you? New Matter
Commonwealth Court: What You Knew, What You Didn’t Know, and When to See it in Action By Shannon K. McDonald, Esq. The Pennsylvania Judicial System is best pictured as a pyramid, where municipal courts and magisterial district courts make the base of the pyramid; the courts of common pleas form the next layer. The Supreme Court of Pennsylvania forms the top point. Between the common pleas and the Supreme Court is a layer divided between two courts: the Superior Court and the Commonwealth Court. The two intermediate appellate courts are (separate but) equals in the appeals realm.
Oral argument before a panel of the judges of the Commonwealth Court
Chester County Justice Center
June 9, 2014 beginning at 9am
Article V Section 4 of the 1968 Pennsylvania Constitution created the Commonwealth Court. It wasn’t until 1970 that specific acts were created to set up the court and court procedure. If you intend to file appeals to the Commonwealth Court (and most cases are going to be appeals) check the court rules on the Unified Judicial System prior to filing. The rules are extremely different from the Superior Court, right down to the page limits and word counts. Additionally, you may file online for Commonwealth Court actions, and then send a paper set to the Court within seven days. The Commonwealth Court has a defined and listed jurisdiction by the Constitution of Pennsylvania, whereas the Superior Court is one of residual jurisdiction (all appeals not appealable to the Commonwealth Court or the Supreme Court go to the Superior Court). Commonwealth Court hears appeals from any administrative agencies (Code §763), actions including fiduciaries, violations of rules or orders by agencies, local government cases, non-profit corporation matters, and appeals from eminent domain issues (Code §762(a) (1-7)). The Commonwealth Court also has original jurisdiction in actions against Commonwealth entities (excepting habeas actions, tort actions, and PCRA actions) (Code §761(a)(1)), insurance receiverships (Code §761(a)(3)), Commonwealth employee arbitration (Code §763(b)), statewide election matters (Code §764), confidential data matters (Code §8722). The Commonwealth Court holds concurrent jurisdiction in any case by Commonwealth entities (Code §761(a)(2)). Jurisdictional example: my most recent appeal to the Commonwealth Court was an action based in equity, among an individual and a condominium association, which are non-profits. So when you’re R L E A S E appealing, you may be closer to the Commonwealth Court than you thought.
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Now, you know what the Commonwealth Court looks at, and though you may not hear of it as often, you know it is as important as the Superior Court. So when can you see it in action? The Commonwealth Court is coming to Chester County and will be hearing oral argument in a full day of cases. We don’t know the docket yet, but the CCBA will keep us posted on that. The arguments are open to the public and will be held June 9, 2014. Additionally, the Board Members of the Chester County Bar Association will have dinner and meet the Judges of the Commonwealth Court the evening before.
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Interview with the Honorable Jeffrey R. Sommer By J. Stoddard Hayes, Jr., Esq.
This January, two new judges were elevated to the bench of the Chester County Court of Common Pleas, bringing the total count to 17 (including two Senior Judges). One of the new judges, The Honorable Jeffrey R. Sommer, until recently a partner in the West Chester firm, Buckley, Brion, McGuire, Morris & Sommer, LLP, was kind enough to meet with New Matter and provide information about himself. What Judge Sommer had to say reflects well on him and on the practice of law in Chester County in general. If you ask the Judge what he is like, he will tell you he is “laid back.” “What you see is what you get.” He enjoyed being a lawyer, liked practicing law, and he liked (and still likes) being around other lawyers. He has been a member of the Chester County Bar Association since 1989, when he first came to this county to practice law, and he is an avid supporter of its social and professional events, regularly attending our bench bars, the President’s Dinner, and other functions. In fact, one of the things that is most important to Judge Sommer is that his relationship with the other lawyers in the Bar Association does not change, as a result of his going on the bench. He hopes to continue socializing with other lawyers. So, ask him to lunch. (Dutch Treat only, please!) Judge Sommer is married to Lisa and lives in Pocopson Township. They have three sons: Matt (23) who is out of school and working, and twins, Alex and Andrew (21), who attend Lehigh University. His family has a bearded collie named Rosie. He loves anything to do with soccer. The Judge has coached all three of his sons and is now a certified US Soccer Federation referee – a position that eminently qualifies him to preside over civil trials. (We look forward to his “carding” the occasional miscreant attorney.) If you ask Judge Sommer to reminisce about his younger years, he will tell you that he first knew he wanted to be a lawyer while he was in elementary school in the Abington School District. He learned to read and write early. When his teachers learned this, they moved him to first grade, then skipped him to second. And, when called on in class, they found he had an excellent speaking voice and was not shy
about using it. His oratory skills didn’t escape notice. His teachers, family and friends soon concluded that he was a born lawyer and told him so. It stuck and he never wanted to be anything else. Judge Sommer was in one of the early classes of Widener University. (He still remembers its being called “Delaware Law School.”) He graduated in 1982 and clerked for Judge Vogle in Montgomery County from the summer of 1982 until September 1983. As far back as he can remember, he always wanted to be a trial lawyer. At first, his ambitions ran to being an ADA in Montgomery County. However, those jobs were few and far between in the fall in 1983 and, when his clerkship ended, he found employment with an insurance defense firm in Norristown. There he won his spurs as an insurance litigator trying all sorts of cases, mostly for the defense. He gained recognition, as well as experience, and, in 1989, when the Buckley firm was looking for someone to beef up their insurance defense department, they found Jeffrey R. Sommer. The rest is history. When interviewed by New Matter, the soon-to-be Judge was looking forward to making the transition from being an advocate to being the decider. To him, it was the logical progression from serving as an officer of the Court to sitting on the Bench. He was ready to learn about how the trial lists worked and how cases could be moved along. He was looking forward to be assigned to sit in Miscellaneous Signing Court for a period of time, then transitioning into presiding over civil trials. When asked what a lawyer coming to his courtroom should be aware of, the Judge replied: “Be prepared to answer the questions: ‘What do you want me to do and what is your authority for that?’” Don’t just come to his Court with a vague notion that you want him to “fix it.” Be direct, be specific, and have authority for what you want him to do. In summary, Judge Sommer was looking forward to making a transition to Judge, but he still wanted to maintain his social contacts with the lawyers in the Bar Association.
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No More “Error in Judgment” Defense in Medical Malpractice Cases By Tim Rayne, Esq. After deliberation, the jury entered a defense verdict. The Passarellos filed post-trial motions alleging that the “Error in Judgment” instruction was inappropriate and they should have a new trial. While Passarellos’ post-trial motions were pending, the Pennsylvania Superior Court filed its En Banc Decision in Pringle v. Rapaport, 980 A.2d 159 (Pa. Super. 2009), holding that the “Error in Judgment” instruction could not be given.
On February 7, 2014 the Pennsylvania Supreme Court decided the case of Passarello v. Grumbine, holding that it was error for a trial judge to instruct the jury in a medical malpractice case that a doctor is not liable for negligent “Error in Judgment.” This decision cleared the law regarding proper jury instruction on violations of the Standard of Care because there had been conflicting decisions from the Superior Court concerning whether or not an “Error in Judgment” charge was proper. Factually, Passarello v. Grumbine arose out of the tragic death of two-month-old Anthony Passarello, who died under the care of Rowena Grumbine, M.D. Over about a week, Dr. Grumbine treated Anthony during office visits and multiple phone conferences with his parents for symptoms including problems feeding, vomiting, malaise, fever and wheezing. When Anthony’s condition did not improve, his parents took him to the emergency room at Altoona Hospital. Anthony was in respiratory distress and his heart rate was dangerously low. Despite ventilation and other treatment, Anthony died. An autopsy determined that the cause of death was a viral infection of the heart muscle. The Passarellos sued Dr. Grumbine and her practice alleging that she violated the Standard of Care by failing to timely refer Anthony for further testing which would have revealed the infection. At the end of the trial, despite the objection of the Passarellos’ counsel, the judge read the “Error in Judgment” charge proposed by Dr. Grumbine’s counsel which provided: “Under the law, physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it’s proven that an error of judgment was a result of negligence.”
Since 1981, the Committee on Proposed Civil Jury Instructions has rejected the “Error in Judgment” charge as confusing. The Committee’s proposed instruction for a physician’s standard of care in a medical malpractice case provides: “A physician must have the same knowledge and skill and use the same care normally used in the medical profession. A physician whose conduct falls below this standard of care is negligent.” The Committee explained why it has rejected the “Error in Judgment” instruction as follows: “There is no reference to a physician’s “judgment” in this instruction for the following reasons. … The focus, under Pennsylvania law, is on whether the physician’s conduct comported [with] the requisite standard of care. Simply put, if a physician does not “exercise reasonable care,” that physician will not be insulated from liability based on the fact that this failure constituted a “mere error in judgment,” or what he or she thought “best after a careful examination.” Conversely, if a physician does “exercise reasonable care,” that physician will generally not be liable, notwithstanding that he or she committed a “mere error in judgment,” or failed to do what he or she thought “best after a careful examination.” In either case, such factors are but elements of the overarching concept of due care. Clearly, the use of phrases regarding mistakes or errors in judgment, best judgment, and the like, in the decisional law of this Commonwealth, are meant to help illustrate the parameters of the standard of care of physicians, and are not meant to pose additional requirements for defendants, on one hand, or to undermine the bedrock “reasonable care” requirement on the other. However, the
www.chescobar.org inclusion of such phrases in jury instructions seems unlikely to serve that purpose. To the contrary, such phrases, at worst, risk misstating the law. At best, they seem unnecessarily circular in form. In any event, such language seems far more likely to mislead and confuse the jury rather than to enlighten it.”
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On appeal, following the En Banc Decision in Pringle v. Rapaport, the Superior Court held that the instruction was improper and prejudicial. The Supreme Court granted Allocatur to decide definitely whether the “Error in Judgment” instruction was proper. On appeal to the Supreme Court, Dr. Grumbine argued that a properly crafted “Error in Judgment” instruction serves to inform the jury that a doctor may make reasonable decisions that, in hindsight, might be proved to be wrong. The Pennsylvania Medical Society, as Amicus, explained that this argument is based on the premise that medicine is often considered an “art,” not science, and requires a physician to make a series of decisions based on symptoms and an adverse outcome is not, on its own, a basis for a finding of negligence. Ultimately, the Supreme Court found that the Pringle Decision was “well-considered” in holding that an “Error in Judgment” instruction posed a substantial risk of confusing juries and should not be used in medical malpractice cases. The problems with the “Error in Judgment” instruction included: (1) that it wrongly suggests that a physician is not culpable for one type of negligence, the negligent exercise of judgment; (2) it wrongly injects a subjective element into the deliberations, that is, an irrelevant focus on the physician’s state of mind; and (3) it may lead the jury to conclude that only judgments made in bad faith are culpable. Despite the holding, the Court indicated that physicians would still be entitled to an instruction that an unfortunate result does not by itself establish negligence.
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From the Bench… The Indenture Tripartite By Hon. Mark L. Tunnell
We trust that a member of the bench will contribute to this column with insights helpful to the Bar. Regrettably, this will not be such an article. The subject is of absolutely no consequence; I generally lapse into old matter. Some 43 years ago, even before law school, I came into possession of an old deed, an indenture tripartite. It was folded up inside an old tome my roommate had just purchased from a bookstore in Salisburg, England. We walked back into the shop and explained the circumstance to the proprietor. He said “Keep It” and Jay gave it to me, and I framed it. It is in my chambers. It starts off “This Indenture tripartite made the sixth day of January in the thirteenth year of the Raigne of our Souvraign and Lord Charles ye Second . . . .” The hallmark of an “indenture” is the “dens” or teeth cut into the top of the instrument. “Tripartite” meant of course that there was a party of the first part, a party of the second part and a party of the third part, in this case, Thomas Eustace, Moses Cole and Robert Earl, respectively. They each signed and sealed the instrument, no doubt with hot wax and their
signet rings. They each took their part with them. I have one of the parts, and the seals hang there still, 340 years later. I suspect that the location in Yorkshire is today something august, like a parking lot. In any event, the purpose of having a scrivener write out the ponderous verbiage three times and cutting up the sheepskin in this fashion is to prevent fraud. In the era before deeds were regularly recorded, the only way one knew if he (rarely a she) had a genuine copy was to bring the three pieces back together and see if they fit. It was common parlance to refer to deeds and documents of servitude as indentures (hence an “indentured” servant) long after the teeth disappeared. When I came to the Bar in 1975, it was still quite common to use deed forms that started off “This Indenture.” Today I suppose this practice has almost entirely ceased. If you want to talk about it, or anything else musty, stop by chambers some time. It will be difficult to shut me up.
CCBA The Blank Page
The Blank Page Our Preservation Campaign By Mark Blank, Jr., Esq.
William Murtagh stated: “It has been said that, at its best, preservation engages the past in a conversation with the present over a mutual concern for the future.” So what is the Preservation Campaign? I am not sure that I can exactly define it, but I will do the best that I can to describe it. The Chester County Bar Association Preservation Campaign was established in 2011. Its purpose is just what it says, preservation. The Bar Association provides services to our members as well as to the community at large. For example, our Lawyer Referral Service offers member attorneys the opportunity to assist the Chester County citizens while, at the same time, providing a service. Other programs include Access to Justice, Law-Related Education, mock trial, The People’s Law School, Law Explorer, fee dispute mediation and arbitration, the naturalization
ceremony, New Matter, The Law Reporter and the Chester County Bar Foundation. The CCBA has also funded the guide for senior citizens and their families. The Bar Association’s ability to provide these services is being threatened. The last time that I wrote this article I stated, “Within the next five (5) years, this wonderful nonprofit is at risk of losing 40% of its revenues... The Law Reporter (which provides almost 40% of the CCBA’s income) could be legislated out of existence.” Previously, it was a question of “if.” Now, it is a question of “when.” Yes, The Law Reporter is being legislated out of existence, and it may be as early as sometime this year. Now, I ask you, where would we be if the CCBA were unable to provide the services that it has traditionally been proud of? The slogan for the Preservation Campaign is “Our Road to Longevity.” And that is what the Preservation Campaign is all about, that is, to assure the financial security of the organization so that it can preserve its many traditions.
The writer loves The Chester County Law Reporter. In fact, reading it is one of my favorite pastimes. But what is more important, is that we are losing its revenue and we need the funds raised in the preservation campaign to enhance the Bar Association’s resources, as well as to make up for the shortfall after The Chester County Law Reporter is no longer. It must be emphasized for those new members (and even others) who may not be aware, the Bar Association has had many fine traditions over the years other than those mentioned here. And the more financially comfortable that we are, the better we will be able to preserve those traditions. Maybe the purpose of the Preservation Campaign is to do just that; that is, to continue our traditions and be assured that they will be preserved in the future. So if you have not yet joined in the campaign, please do so now. Think of it this way we want to preserve our fine traditions. So far, to-date, the Preservation Campaign has almost $325,000 in pledges from 107 of our members. Our goal is to raise $1,000,000. I am asking everybody to help us reach that goal – no amount is too small. Finally, below is a list of all those who have made pledges thus far. To commit to our Preservation Campaign, go to: http://www.chescobar. org/?page=PreservationCampaign
P R E S E R VAT I O N C A M PA I G N C O N T R I B U T O R S Fox Rothschild LLP Gawthrop Greenwood MacElree Harvey DNB First, N.A. Buckley, Brion, McGuire, Morris & Sommer Susquehanna Bank WSFS Bank USI Affinity Fulton Bank Robert Adams M. Gordon Daniels John Featherman III J. Keith Fetter William Gallagher Alfred Gollatz Carol Haltrecht Jeffrey Lewis John McKenna Morton Family Law Michael Morton Lance Nelson Mary Ann Rossi
Craig Styer Unruh Turner Burke & Frees George Zumbano Hon. Mark & Judith Tunnell Mary-Ellen Allen CCBA & CCBF Board of Directors Hon. Jacqueline Cody Kevin Connors Samuel Cortes Tod & Sophie Hayes Donald & Kimberly Kohler Marta Laynas Michael Louis Brian Nagle Hon. Ronald Nagle John Stanzione Steven Sugarman Catherine Voit William Wilson Anonymous Rami Bishay
Patricia Brennan Janet Colliton Stacey Fuller & Patrick McKenna Arthur Goldman Lisa Comber Hall Keen Keen & Good Bruce Laverty David Melchiorre Hon. Paula Francisco Ott J. David Outtrim Andrea Pettine Salvatore Anastasi George Asimos Stephen Baer Mark Blank, Jr. Paula Borradaile Hon. David Bortner Ronald Brien Robert Burke John Fiorillo Hon. Thomas Gavin Leo Gibbons
J. Charles Gerbron, Jr. Hon. Edward Griffith Hon. John Hall John Halsted John Hannum, Jr.* * In memory of The Hon. John B. Hannum, Sr. Kevin Holleran Peter Kratsa Seamus Lavin Ashley Lerch Marc Lieberman Stanley Lieberman John Lindros Julia Malloy-Good Stephen & Mary Ev McGann Kristin Molavoque Michelle Portnoff Barry Rabin Hon. Howard Riley, Jr. Juan P. Sanchez Hon. Anthony Sarcione Winifred Sebastian
Jane Shields Amanda Sundquist Eric Trajtenberg Allen Greenwood Jamie Goncharoff A.J. Ober Terri Smith Elizabeth Srinivasan Hon. Ann Marie Wheatcraft Christine Zaccarelli Hon Phyllis Streitel Michelle Bernardo-Rudy John Embick Robert Supplee Dennis Brogan Peter Callahan Catherine Sue Clark John Saling Edward Sweeney Joseph Wusinich Charles DeTulleo June Appell
It Takes a Village at the CCBA By Lisa Comber Hall, Esq., President
Being the 80th President of the Chester County Bar Association is an amazing experience! It is truly my privilege to represent our association at various events and to interact with CCBA members and staff on a daily basis. However, dealing with issues related to the day to day operations of our association and enhancing and promoting the quality of the practice of law among our members and within our community takes more than just the efforts of the Bar President; to use the old cliché, “it takes a village.” Fortunately, the CCBA “village” is populated with a dedicated Board of Directors, an efficient Executive Director and her staff and, of course, a multitude of talented lawyers willing to volunteer their time to advance the CCBA’s numerous programs. In case you do not know the individuals to whom I am referring in the above paragraph, meet them on the next page.
www.chescobar.org E X E C U T I V E CO M M I T T E E
Craig A. Styer President-Elect
Lisa Comber Hall, President (shown on left page)
William T. Wilson Vice President
B OA R D M E M B E R S
Christine E. Zaccarelli Mary-Ellen Allen Treasurer Secretary
A.J. Ober, IV YLD Chair
CC B A S TA F F
Michelle Bernardo-Rudy Samuel W. Cortes John K. Fiorillo Thomas P. Hogan John E. Lindros Hon. Katherine B.L. Platt Eric Trajtenberg Catherine H. Voit Kim Denise Morton, (Immediate Past President)
Wendy C. Hoffman Executive Director
Genya Cunningham Assistant Executive Director
Emily Boulanger Communications Coordinator
Kevin Connelly Membership and CLE
Stephanie Gibbs Database Manager
Janae Lindsay Lawyer Referral Service and Events
Basel Frens, (YLD Chair-Elect) Ashley Lerch, (YLD Immediate Past Chair)
continued on page 22 Molly McLaughin Intern
Justin Sochovka Intern New Matter
President’s Message It Takes a Village | SECTION Alternative Dispute Resolution Alternative Dispute Resolution Bankruptcy Business Law Civil Litigation Section Civil Rights Criminal Defense District Judges - Civil District Judges - Criminal Elder Law Employment Law Employment Law Entrepreneurial Law Environmental Law Estate, Probate & Trust Law Family Law Family Law Immigration Section Intellectual Property International Business Law Lawyer/Realtor Municipal & Land Use Real Estate Law Solo / Small Firm Section Women in the Practice of Law Worker’s Compensation Worker’s Compensation Worker’s Compensation Young Lawyers’ Division
continued from page 19
CHAIR June D. Appell, Esq. Stephen P. Lagoy, Esq. Mark Blank, Jr., Esq. John E. Lindros, Esq. Peter Hart, Esq. J. Michael Considine, Jr., Esq. Stephen I. Baer, Esq. Hon. Analisa Sondergaard Hon. John Bailey Janet M. Colliton, Esq. Brian D. Boreman, Esq. Art D. Goldman, Esq. Patricia Wenger, Esq. John R. Embick, Esq. J. Stoddard Hayes, Jr., Esq. Jane P. Marks, Esq. Lawrence J. Persick, Esq. Cynthia Haynes Eshleman, Esq. Salvatore Anastasi, Esq. J. Michael Considine, Jr., Esq. James S. Tupitza, Esq. Kristin Camp, Esq. David J. Holl, Esq. Andrea B. Pettine, Esq. Maureen Mackay, Esq. Bill Lynch, Esq. Kate O’Dell, Esq. John Stanzione, Esq. A.J. Ober, Esq.
COMMITTEE Building Bylaws CCBA Golf League CCBF Casino CCBF Golf Continuing Legal Education Fall Bench Bar Fee Dispute Historical Judicial Evaluation Law Day Law Related Education Lawyer Referral Service Legislative Membership Memorial Naturalization Newsletter Nominating Pro Bono Pro Bono Public Outreach Publications Skippers Swope Scholarship Technology
CHAIR Lance J. Nelson, Esq. Patrick M. McKenna, Esq. Christine Zaccarelli, Esq. Terri Smith Brian L. Nagle, Esq. John R. Embick, Esq. Andrea B. Pettine, Esq. George J. D’Ambrosio, Esq. VACANT Patrick M. McKenna, Esq. Maureen Mackay, Esq. Mark Blank, Jr., Esq. Rami Bishay, Esq. E. A. Dixon, Jr., Esq. Stephanie N. Deviney, Esq. Randall C. Schauer, Esq. Rosana I. Chiple Molina, Esq. Charles T. DeTulleo, Esq. Lisa Comber Hall, Esq. John F. McKenna, Esq. Catherine H. Voit, Esq. Brian L. Nagle, Esq. Richard E. Meanix, Esq. Marc J. Lieberman, Esq. Donald F. Kohler, Jr., Esq. Jay G. Fischer, Esq.
A gathering of CCBA members on the steps of the Historic Courthouse in 2008
Let us not forget that the health and sustainability of the CCBA is the collective result of those who have served in the past, those presently serving and those who will serve in the future. Great things can be achieved when there is involvement and support from the whole “village.” Thank you to all who have made the CCBA a successful and vibrant organization since 1929! — Lisa Comber Hall, Esquire 22 |
Y L Details
New Format for YLD Meetings By Shannon K. McDonald, Esq. The Young Lawyers’ Division (YLD) is going through some changes, thanks to the new chairman, A.J. Ober. Ober’s theory is that we can increase participation and have more fun with a new format for meetings. Every even numbered month the YLD will meet at happy hour on the first Wednesday of the month, at Ryan’s Pub on Gay Street in West Chester. This change in the hour of the meeting, and the different location, should encourage those with too much going on for a lunch meeting to come on out for a more relaxed chat session with other young lawyers. I attended the first of these new “happy hour meetings” in February, and enjoyed it. With the first beer free, how could you go wrong? The meeting was casual and fun, with at least one new face I had never met before. Conversation was about everything from the normal chatter of what kind of law we practice, to travel locations, to the rabies virus. After learning from the bartender that there is a roof deck at Ryan’s, I think we’re all hoping for nice weather next time so we can have our next happy hour meeting en plein air.
The odd numbered months are still the lunch hour meetings with, as always, free pizza. Ober has assured the members that he will be working to get more CLE credit into these lunch hour meetings, which should interest young lawyers who may not be certain of how many credits we’ll need to build up before the next high pressure trial takes up all of our time. These meetings will also involve conversations about the ways the YLD is participating in the bar association as a whole, and ways the YLD is trying to remain involved in the community of West Chester and Chester County.
It’s going to be a year of changes in the YLD, and it has brought new people and new ideas to the table; so far, it’s been fun.
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Supreme Court Justice Thurgood Marshall Had Chester County Ties By Rob Lukens, President of the Chester County Historical Society (This article first appeared in the Daily Local News)
In September 1925, an unassuming young 17-year-old packed his bags for college, hopped in his parents’ car, and took a ride from his native Maryland to Lincoln University in southern Chester County. Twenty-nine years later, this man helped topple the “separate but equal” legal foundation of racial discrimination and later became the United States’ first African American Supreme Court Justice. This was none other than Thurgood Marshall. Thurgood Marshall was born in Baltimore, Maryland, in 1905 and grew up in that same bustling Chesapeake city. It was shortly after his high school graduation in 1925 that Marshall left for Lincoln University.
As recorded in Juan Williams’ biography Thurgood Marshall, American Revolutionary, Marshall lived his first year like any other college freshman. He loved card playing, reading comic books and visiting Philadelphia or Baltimore for fun on the weekends. After joining the Alpha Phi Alphas, Marshall reveled in fraternity life. He pulled wild pranks on other students and was expelled for a short while when one went too far. The diplomacy of a fellow student, famed poet Langston Hughes, worked out a way for Marshall and other expelled students to atone for their transgressions and return to school.
Photo courtesy of the Langston Hughes Memorial Library Special Collections and Archives, the Lincoln University of Pennsylvania. This photograph shows Thurgood Marshall, second row, second from right, with fellow Alpha Phi Alpha pledges at Lincoln University, 1926.
As quoted in the Williams’ biography, his wild and boisterous behavior gave him the reputation as “apparently the least likely to succeed” among his classmates. But Marshall turned his studies around quickly. He had a knack for debate, shined as an orator, and was known for his energetic football rally speeches. A seminal moment in Marshall’s life came when he went to see a movie in Oxford with friends. When they entered the theater, ushers directed them to the “colored” balcony and refused a refund when they tried to leave. The infuriated students tore down curtains and broke the front door as they rushed out. Although Lincoln was an historically black college, during Marshall’s time the school had an all-white faculty. Langston Hughes and Marshall led the movement to
www.chescobar.org integrate the faculty in 1929 and the first black professor was hired a year later. From there Marshall’s studies became serious. He then got married and graduated from Lincoln in January of 1930. He graduated from Howard University School of Law in 1933 and began working for the National Association for the Advancement of Colored People (NAACP) in 1934. Through the courts, the NAACP challenged the legal basis for discrimination and segregation. Marshall became the organization’s biggest champion. During the 1940s, Marshall won several cases for the NAACP against discriminatory practices, such as Texas’s “all white” primaries and racial residential covenants. In 1954, he championed a case that proved to be one of the turning points
in American history. Since the famous 1896 “Plessy vs. Ferguson” case, the allowance of “separate but equal practice” buttressed school segregation across the South. Schools in Chester County were segregated to varying degrees as well.
Marshall worked his way to the top of the justice system ladder. President Kennedy nominated him to the second court of appeals in 1961. Soon thereafter, he became a circuit judge before President Johnson made him solicitor general in 1965.
But in 1951, under the auspices of the NAACP, a group of Topeka, Kansas, parents sued the local Board of Education to bar segregation from their schools. The case made it all the way to the Supreme Court, where Marshall argued as the NAACP’s chief counsel. In 1954, the Supreme Court decided unanimously that the “separate but equal” doctrine was unconstitutional, thus undermining the mainstay of institutional discrimination in American schools.
Finally, in 1967, he became the first African American to become a U.S. Supreme Court Justice. In his 24 years of service, he built a reputation as a supporter of individual rights and an outspoken opponent of the death penalty.
In all, Marshall won 29 NAACP cases before the Supreme Court, laying the judicial groundwork for the Civil Rights movement of the 1950s and 1960s.
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So if anyone ever tells you or your child “you will amount to nothing,” remember the story of Thurgood Marshall, the Lincoln University student dubbed the “least likely to succeed.” Marshall grew into a giant who made an enormous mark on history by fighting for the principle of equality.
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PA Supremes Breathe New Life into Article 1, Section 27 of the Pennsylvania Constitution By John R. Embick, Esq.
Co-Chair, Environmental Law Section
The recent and long-awaited decision of the Pennsylvania Supreme Court concerning the validity of the new Pennsylvania Oil and Gas Act (Act 13 of 2012) was rendered on December 19, 2013, in the case of Robinson Township, et al. v. Commonwealth of Pennsylvania, et al. No. 63 MAP 2012. The Robinson Township case raised many interesting issues related to standing, ripeness, separation of powers, due process, statutory and constitutional interpretation, and the scope of the authority of the General Assembly and Pennsylvania municipalities. From an environmental law standpoint, however, the main opinion, authored by Chief Justice Castille, was striking in its treatment of Article 1, Section 27 of the Pennsylvania Constitution. Art. 1, Sec. 27 is also known as the Environmental Rights Amendment. Ratified by voters in a 1971 referendum, the Environmental Rights Amendment grants citizens certain environmental rights, and appoints the Commonwealth as the trustee of various natural resources: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” The Robinson Township case pitted the Commonwealth against a group of citizens, elected officials and municipalities (the latter will be referred to collectively as “Citizens”) regarding the development of the
Marcellus Shale Gas deposits. One of the main effects of Act 13 was to severely limit municipalities’ zoning rights with respect to shale gas development.
rights of citizens afforded by the first sentence of the Environmental Rights Amendment, finding the arguments of the Citizens to be not sufficiently developed.
In the decision below, Commonwealth Court had dismissed the Citizen’s claims (for failure to state a claim) premised on the Environmental Rights Amendment by concluding that Act 13 had relieved municipalities from balancing gas development with environmental concerns in zoning matters. The revival of those claims and the extensive treatment and reliance of Chief Justice Castille on the Environmental Amendment was surprising, and largely unexpected by many. Justice Castille wrote:
The Court, therefore, focused on the obligations of the Commonwealth as trustee of the Commonwealth’s natural resources. The central question presented, according to Chief Justice Castille, is whether the General Assembly performance of its legislative function in enacting Act 13 is consistent with the constitutional mandate of the Environmental Rights Amendment. Chief Justice Castille specifically related the development of the Environmental Rights Amendment as a response to past industrial activities which wreaked widespread and long lasting environmental pollution in the Commonwealth, such as the early deforestation of Pennsylvania, and the extraction of anthracite coal in the 19th and 20th centuries.
“To describe this case simply as a zoning or agency discretion matter would not capture the essence of the parties’ fundamental dispute regarding Act 13. Rather, at its core, this dispute centers upon an asserted vindication of citizens’ rights to quality of life on their properties and in their hometowns, insofar as Act 13 threatens degradation of air and water, and of natural, scenic, and esthetic values of the environment, with attendant effects on health, safety, and the owners’ continued enjoyment of their private property. The citizens’ interests, as a result, implicate primarily rights and obligations under the Environmental Rights Amendment —Article I, Section 27. We will address this basic issue, which we deem dispositive, first.” The Court placed the environmental rights and responsibilities afforded by Art. 1, Sec. 27 on the same level as other political rights granted by Art. 1 of the PA Constitution. The Court also declined to construe the extent of the personal and individual
In short, the Court finds that the limitation of local municipal zoning authority and the ability of the Commonwealth to waive certain set back limitations as contained in Act 13 were inconsistent with the Commonwealth’s role as trustee of natural resources and its duty to preserve and maintain them for generations to come. This all happened, in my view, because some of the justices thought more in depth, after over 40 years, about what exactly does the Environmental Rights Amendment mean, and how is that meaning applied in evaluating what legislation like Act 13 does. This was all possible because, rightly or wrongly depending upon your perspective, the rights described by the Environmental Rights Amendment were placed into the Commonwealth’s Charter.
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Attorneys Who Made a Difference By Charles T. DeTulleo, Esq. In my search for those attorneys who made a difference besides their practice of law, I continue to look toward the military contributions made by lawyers. I know that making a difference can be defined by each of us, but there are those that stand out who did more. Recently, there was a search conducted for those during past wars that were awarded a certain commendation to see if the award should be upgraded. One of the factors that was found was that there was a distinct lack of minorities who were awarded our nation’s highest award, the Medal of Honor. President Obama was able to place the Medal of Honor on several soldiers who survived the war. Not all of the awards went to a living soldier. There were 24 Medal of Honors awarded but only 3 were given by the President. (See http://abcnews.go.com/Politics/wireStory/obama-giving-medalhonor-24-vets-wars-22951024) I had done some research and discovered another attorney that served during wartime and was awarded the Medal of Honor. At one of the meetings of New Matter, I brought up the topic and two of the committee confirmed that my choice was in fact a soldier and had received the Medal of Honor. For you who asked to have a printed issue of New Matter I now ask that you take a moment and help me find additional Medal of Honor recipients who were also attorneys. Just call me and give me a name and I will do the rest. The next attorney that I found is listed below. Since he was more than just an attorney, although some would say that is enough, when I read his history I found that he made major contributions to the safety of our entire country. I am quoting from the Free Encyclopedia, Wikipedia, including use of its photos, and have left out some of the information provided by that website in order to conserve space. You are welcome to read the entire entry by going to: http://en.wikipedia. org/wiki/William_J._Donovan
WILLIAM J. DONOVAN, ESQ. Birth name William Joseph Donovan Nickname “Wild Bill” Born January 1, 1883 Buffalo, New York Died February 8, 1959 (aged 76) Walter Reed Army Medical Center Washington, D.C. Place of burial Arlington National Cemetery Allegiance United States of America Service/branch New York Guard United States Army Years of service 1912 – 1916, 1919 – 1922 (State Guard) 1916 – 1919, 1941 – 1945 (Army) Rank Major General Commands held 165th Infantry Regiment (World War I) Office of Strategic Services (World War II) Battles/wars World War I World War II Awards Medal of Honor Distinguished Service Cross Distinguished Service Medal (3) Purple Heart (2) National Security Medal Freedom Award Other work U.S. Attorney United States Ambassador to Thailand Wall Street
William Joseph (“Wild Bill”) Donovan (January 1, 1883 – February 8, 1959) was a United States soldier, lawyer, intelligence officer and diplomat. Donovan is best remembered as the wartime head of the Office of Strategic Services (OSS), a precursor to the Central Intelligence Agency, during World War II. He is also known as the “Father of American Intelligence” and the “Father of Central Intelligence”. A decorated veteran of World War I, General Donovan is the only person to have received the four highest awards in the United States: The Medal of Honor, the Distinguished Service Cross, the Distinguished Service Medal, and the National Security Medal. He is also a recipient of the Silver Star and Purple Heart, as well as decorations from a number of other nations for his service during both World Wars. William Joseph attended St. Joseph’s Collegiate Institute and Niagara University before starring on the football team at Columbia University. On the field, he earned the nickname “Wild Bill,” which would remain with him for the rest of his life. Donovan graduated from Columbia in 1905 and was a member of the Phi Kappa Psi fraternity, as well as the Knights of Malta. Donovan was a graduate of Columbia Law School and became an influential Wall Street lawyer. In 1912, Donovan formed and led a troop of cavalry of the New York State Militia. This unit was mobilized in 1916 and served on the U.S.Mexico border during the American government’s campaign against Pancho Villa.
World War I Donovan as a Major with the Fighting 69th in France in 1918. During World War I, Major Donovan organized and led the 1st battalion of the 165th Regiment of the 42nd Division, the federalized designation of the famed 69th New York Volunteers, (the “Fighting 69th”). In France one of his aides was poet Joyce Kilmer, a fellow Columbia College alumnus. For his service near Landres-et-St. Georges, France, on 14 and 15 October 1918, he received the Medal of Honor. By the end of the war he received a promotion to colonel, the Distinguished Service Cross and two Purple Hearts. Donovan in 1924, during his time in the Department of Justice From 1922 to 1924, he was US Attorney for the Western District of New York, famous for his energetic enforcement of Prohibition. In 1924 President Calvin Coolidge named Donovan to the United States Department of Justice’s Antitrust Division as a deputy assistant to Attorney General Harry M. Daugherty. Donovan ran unsuccessfully as a Republican for Lieutenant Governor of New York in 1922, and for Governor of New York in 1932.
World War II During the interwar years, Donovan traveled extensively in Europe and met with foreign leaders including Benito Mussolini of Italy. Donovan openly believed during this time that a second major European war was inevitable. His foreign experience and realism earned him the attention and friendship of President Franklin D. Roosevelt. The two men were from opposing political
parties, but were similar in personality. Because of this, Roosevelt came to highly value Donovan’s insights. Following Germany’s invasion of Poland in September 1939 and the start of World War II in Europe, President Roosevelt began to put the United States on a war footing. This was a crisis of the sort that Donovan had predicted, and he sought out a responsible place in the wartime infrastructure. On the recommendation of Donovan’s friend United States Secretary of the Navy Frank Knox, Roosevelt gave him a number of increasingly important assignments. In 1940 and 1941, Donovan traveled as an informal emissary to Britain, where he was urged by Knox and Roosevelt to gauge Britain’s ability to withstand Germany’s aggression. During these trips, Donovan met with key officials in the British war effort, including Winston Churchill and the directors of Britain’s intelligence services. Donovan returned to the US confident of Britain’s chances and enamored with the possibility of founding an American intelligence service modeled on that of the British.
OSS On July 11, 1941, Donovan was named Coordinator of Information (COI). America’s foreign intelligence organizations at the time were fragmented and isolated from each other. The Army, Navy, Federal Bureau of Investigation (FBI), United States Department of State, and other interests each ran their own intelligence operations, the results of which they were reluctant to share with the other departments. Donovan was the nominal director of this unwieldy system, but was plagued over the course of the next year with jurisdictional battles. Few of the leaders in the intelligence community were willing to part with any of the power that the current ad hoc system granted them. The FBI, for example, under the control of Donovan’s rival J. Edgar Hoover, insisted on retaining its autonomy in South America. continued on page 30 New Matter
Featured Attorneys Attorneys Who Made a Difference | Nevertheless, Donovan began to lay the groundwork for a centralized intelligence program. It was he who organized the COI’s New York headquarters in Room 3603 of Rockefeller Center in October, 1941 and asked Allen Dulles to head it; the offices Dulles took over had been the location of the operations of Britain’s MI6. In 1942, the COI became the Office of Strategic Services (OSS) and Donovan was returned to active duty in his World War I rank of colonel (by war’s end, he would be promoted to major general). Under his leadership the OSS would eventually conduct successful espionage and sabotage operations in Europe and parts of Asia, but continued to be kept out of South America as a result of Hoover’s
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hostility to Donovan. In addition, the OSS was blocked from the Philippines by the antipathy of General Douglas MacArthur, the commander of the Southwest Pacific Theater. For many years the operations of the OSS remained secret, but in the 1970s and 1980s, significant parts of the OSS history were declassified and became public record. As World War II began to wind to a close in early 1945, Donovan began to focus on preserving the OSS beyond the end of the war. After President Roosevelt’s death in April, however, Donovan’s political position, which had thrived because of his personal relationship to the President, was substantially weakened. Although he argued forcefully for the OSS’s
retention, he found himself opposed by numerous opponents, including President Harry S. Truman, who personally disliked Donovan, as well as J. Edgar Hoover, who viewed the OSS as competition for his goal to expand the FBI’s investigative operations internationally. Public opinion turned against Donovan’s efforts when conservative critics rallied against the intelligence service that they called an ‘American Gestapo.’ After Truman disbanded the OSS in September 1945, Donovan returned to civilian life. Various departments of the OSS survived the agency’s dissolution, however, and less than two years later the Central Intelligence Agency was founded, a realization of Donovan’s hopes for a centralized peacetime intelligence agency.
www.chescobar.org Role in formation of the CIA
Death and legacy
Donovan did not have an official role in the newly formed CIA but with his protégé Allen Dulles and others, he was instrumental in its formation. Having led the OSS during World War II, Donovan’s opinion was especially influential as to what kind of intelligence organization was needed as a bi-polar post-war world began to take shape. Although he was a force to be reckoned with, his idea for consolidating intelligence met with strong opposition from the State, War and Navy Departments and J. Edgar Hoover. President Truman was inclined to create an organization that would gather and disseminate foreign intelligence; Donovan argued that the new agency should also be able to conduct covert action. Truman was unenthusiastic about this additional authority, but Donovan’s arguments prevailed and were reflected in the National Security Act of 1947 and the Central Intelligence Agency Act of 1949. In 1946, Truman appointed Rear Admiral Sidney Souers, USNR, as the first Director of Central Intelligence. This was an important first step but the actual creation of the CIA required another persuasive voice, that of Hoyt Vandenberg. In 1947 Rear Admiral Roscoe H. Hillenkoetter was appointed as the first Director of the CIA.
Donovan died from complications of vascular dementia on February 8, 1959, at Walter Reed Army Medical Center, in Washington, D.C. at the age of 76, and is buried in Section 2 of Arlington National Cemetery. President Dwight D. Eisenhower referred to him as “the Last Hero,” which later became the title of a biography of him. After his death, Donovan was awarded the Freedom Award of the International Rescue Committee (not, as some biographies state, the “Medal of Freedom,”= a different award). The law firm he founded, Donovan, Leisure, Newton & Irvine was dissolved in 1998. His home Chapel Hill near Berryville, Virginia, was listed on the National Register of Historic Places in 2004. Major General Donovan is a member of the Military Intelligence Hall of Fame. continued on page 32
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After the war ended, Donovan reverted to his lifelong role as a lawyer to perform one last duty: he served as special assistant to chief prosecutor Telford Taylor at several trials following the main Nuremberg War Crimes Tribunal in Germany. There he had the personal satisfaction of seeing the Nazi leaders responsible for the torture and murder of captured OSS agents brought to justice. For his World War II service, Donovan received the Distinguished Service Medal, the highest American military decoration for outstanding non-combat service.
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At the conclusion of the Nazi war criminal trials, Donovan returned to Wall Street and his highly successful law firm, Donovan, Leisure, Newton & Irvine. He remained always available to postwar Presidents who requested his advice on intelligence matters. In 1949 he became chairman of the newly founded American Committee on United Europe, which worked to counter the new Communist threat to Europe by promoting European political unity. In 1953 President Dwight Eisenhower appointed Donovan Ambassador to Thailand on August 3, 1953. He served in that capacity from September 4, 1953 until his resignation on August 21, 1954.
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Featured Attorneys Attorneys Who Made a Difference |
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Awards and Decorations U.S. Awards Medal of Honor Distinguished Service Cross Distinguished Service Medal with two oak leaf clusters
Lt. Col. Donovan personally led the assaulting wave in an attack upon a very strongly organized position, and when our troops were suffering heavy casualties he encouraged all near him by his example, moving among his men in exposed positions, reorganizing decimated platoons, and accompanying them forward in attacks. When he was wounded in the leg by machine-gun bullets, he refused to be evacuated and continued with his unit until it withdrew to a less exposed position.
Purple Heart with one oak leaf cluster National Security Medal Mexican Border Service Medal World War I Victory Medal with 5 campaign bars Army of Occupation of Germany Medal American Defense Service Medal American Campaign Medal Asiatic-Pacific Campaign Medal with Arrowhead device and 2 bronze service stars European-African-Middle Eastern Campaign Medal with Arrowhead device, two silver service stars, and two bronze service stars
References Order of the Crown (Italy) (Italian: Ordine della Corona d’Italia) Croce al Merito di Guerra (Italy)
World War II Victory Medal
Commander’s Cross with Star of the Order of Polonia Restituta (Poland)
Army of Occupation Medal with Germany clasp
Grand Officer of the Order of Léopold of Belgium with Palm
Armed Forces Reserve Medal with one ten-year hourglass device
Czechoslovakian War Cross (1939) Grand Officer of the Order of Orange Nassau (Netherlands)
1. International Rescue Committee Freedom Award 2. a b c CIA: Look Back … Gen. William J. Donovan Heads Office of Strategic Services 3. CIA: William J. Donovan and the National Security 4. William J. Wild Bill Donovan, Major General, United States Army. Arlingtoncemetery.net. Retrieved on 201208-27. 5. Brown 1982, p. 56. 6. Keehn 1910, p. 68.
Grand Cross of the Royal Norwegian Order of St. Olav (Norway)
7. Phelan, Matthew (2011-02-28) Seymour Hersh and the men who want him committed, Salon.com
Commandeur de la Légion d’honneur (France) (World War II)
Knight Grand Cross (First Class) of The Most Exalted Order of the White Elephant (Thailand)
8. a b cThomas A. Rumer, The American Legion: A Official History, 1919-1989. New York: M. Evans and Co., 1990; pg. 107.
Croix de guerre with Palm and Silver Star (France) (World War I)
Medal of Honor Citation
Foreign Awards Légion d’honneur (France) (World War I)
Honorary Knight Commander of the Most Excellent Order of the British Empire Papal Lateran Cross (Vatican) (Italian: Croce Lateranese) Knight Grand Cross of the Order of St. Sylvester (Vatican) (Italian: Ordine di San Silvestro Papa)
Rank and organization: Lieutenant Colonel, U.S. Army, 165th Infantry, 42d Division. Place and date: Near Landres-et-St. Georges, France, 14–15 October 1918. Entered service at: Buffalo, N.Y. Born: 1 January 1883, Buffalo, N.Y. G.O., No.: 56, W.D., 1922.
9. Lawrence Kestenbaum, “William Joseph Donovan, (1883-1959),” The Political Graveyard, politicalgraveyard.com/ 10. Omitted. 11. Clifford, Clark, Counsel To The President, A Memoir, New York: Random House, 1991, 165-66. 12. “National Register Information System”. National Register of Historic Places. National Park Service. 2010-07-09. 13. Medal of Honor recipients “World War I”
Mary’s Country Corner
Mary’s Country Corner By Mary Wade Myers, Esq. Last December I was wondering where would be a new source of material for Country Corner. Mother nature arrived and provided enough for a novel. I had put the ram with the flock so as to begin lambing in mid March. In late December I observed udders on some of the ewes and I got a sinking feeling that I would not be lambless until March. Two of my lamb purchasers, after paying for several, left one ram lamb for later pick-up. That later pick-up turned out to be too late. Lambing began in early February, just in time for the snow, ice and cold. Not only was the timing ill-advised, the ewes were consistently giving multi births. I was up late; I was up early. No amount of prior experience eased the bitter cold at 4:00 a.m. The ewes self-birthed for the most part. But when there are triplets and Mom only has two spigots, there is work in supplemental feeding and extra observation. One ewe was huge and I gave her special attention and care. The weeks slipped away and she only got bigger. I finally gave her a labor inducing shot to no avail and I realized that I had to involve professionals. Nothing like having Penn’s New Bolton Veterinary School close by. We called and it was decided fat mom should be admitted on Sunday even though an emergency weekend charge would be added. Getting her from her stall into the pick-up truck turned out to be a relatively easy task. The Kubota’s front end loader was a perfect gurney. We scooped her up, upside down. I rode in the bucket with my weight on her head while holding up a hind leg. She was so immobilized that she never struggled. The loader raised her to the tail gate height and we simply rolled her off into the covered truck bed. At New Bolton we were met by three vets and a covey of students. The many hands easily lowered her to the ground and the ewe and group trudged off to the surgery center with Bill and me bringing up the rear.
It was a hospital in all respects. There was the admitting vet; there was the surgery vet, there was a vet whose specialty was pediatrics. These were surrounded by nursing assistants and students. Everyone scrubbed, gowned and masked. The students were lectured for quite a while before the procedure began. An examination revealed that the ewe’s cervix was not dilated, even though she was in sporadic labor. Her respiration and pulse were elevated. An ultrasound revealed moving lambs. It was obvious that she could not lamb naturally, so they prepared for a C Section operation. The ewe was clipped along one side and washed vigorously. They led her through large doors into the operating theater but stopped us from following along. Barred from that area, we could still see and hear a lot through the open door. Meanwhile out in our area, vet Michelle prepared for the babies. She was an Aussie so she had some background in sheep. There were warm cloths, a hot air canopy, an electric rubber mat, a scale, identifying collars and a complex baby table with tubes, oxygen, bottles and syringes. Within minutes a lifeless form arrived lying across two outstretched arms. Michelle jumped into action, wiping out the mouth and nose. She tried to breathe life into it. She pushed in a tube with oxygen, all the while slapping it and compressing the chest. She finally resorted to several shots. My practical experience rang in my head, “fat chance. Give up!” But she did not give up and minutes later I saw a twitch. Before our eyes the lamb was jumpstarted into life. During this time another lamb arrived kicking and bleating - and then another. After a short interval a fourth lamb appeared. Each was washed and rubbed and placed on the mat in the warm cave. By now the first lamb was ready to join the strong ones. Each was weighed, color collared and given an individual record chart. The weight of the lambs, sans fluid, exceeded 21 lbs. After some time Mom staggered
Michelle & Mary
out, not knowing what had happened. She most certainly did not recognize the products of her birthing. Any identifying smell has been hygienically removed. We took the whole crew to a waiting stall. The first born was a girl; the rest were boys. The boys were walking around, hunting for their milk. The students took turns holding Mom and trying to teach the lambs the location of the milk bar. Michelle decided to tube feed the girl because her sucking response was so weak that milk in the mouth could easily flow to the lungs and not the stomach. Before we left Mom was eating and the lambs had all gotten their first milk. Vets and students celebrated their success. Bill and I felt like proud parents. Thankfully we accepted their offer to have the whole group remain for several days. Supplemental feeding was given every several hours. As the week flew by, I continued to postpone pick-up. The weather was horrible and I had several births at the farm. But, faced with a second emergency extra weekend charge, I finally brought them home on Saturday. They were very expensive lambs; at least I got four for the price of one. I still think that the cost should have given us admission to the operation. Actually the total charge was modest when you compare what it would have been in a human hospital setting. At the farm my “hot house” gang got a rude awakening. Supplemental bottles were offered twice a day. The only heat was a hanging heat lamp. Their bedding was not replaced daily. In spite of the change, they have thrived well. They are now a month old. They frolic with all the lambs and are as dirty as the rest. However the girl still looks me up for a bottle whenever I come to the barn. New Matter
Protect Your Practice by Backing Up the Back-up By Keith E. Boggess, Esq.
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A law practice must back up its data. The recent change in Comment 8 of Rule 1.1 of the Pennsylvania Rules of Professional Conduct suggests it—a competent attorney should now keep abreast of benefits and risks of relevant technology. The destructive force of reality demands it—a law practice may enter a terrifying free fall if critical information suddenly disappears. No matter how big the law practice—from the at-home office to the global firm—one principle guides the back-up plan: redundancy. To say it another way, always back up the back-up. But reality makes implementing that principle often complex and confusing. Businesses quickly learn that with technology comes cost in time, human resources, and money. Fancy servers and tape machines break. Online back-up solutions need rock-solid, large Internet connections as well as excellent security protocols. No one solution for every scenario exists. Focusing, however, on choosing the right tool, or avoiding the wrong one, will make implementing a solution less stressful. While at first glance, choosing the right tool seems a truism, making good choices may not be so easy. Abraham Maslow, the famous psychologist known for his Hierarchy of Needs, made popular the idea that is now dubbed “the law of the instrument,” or simply “Maslow’s hammer”: if all you have is a hammer, then everything looks like a nail. To explain further, one may be tempted to adopt only familiar back-up techniques without considering others. Suddenly, that hammer mentality has smashed the budget to pieces, or it makes no dent in the problem at all. When the hammer mentality is avoided, then it becomes apparent that different scenarios will have different back-up schemes. A solo practice will adopt simpler, more manageable archiving methods. A small firm may not be able to afford dedicated servers such as a medium firm, but it may be able to afford some third-party services. A medium firm may not be able to keep dedicated Information Technology (IT) staff on its payroll like a large firm can. The first step, then, is not only to identify the tools but to know the use and limit them. A good back-up scheme achieves redundancy by spreading protected data in different physical locations. A law practice should have multiple back-up tools working together. Typically, a larger business will have an off-site copy that is weekly and an on-site copy that is daily (a smaller business may only need to
www.chescobar.org make weekly back-ups and keep monthly ones off-site). If an electrical surge destroys the firm’s critical technology, new devices can be bought and the data loaded with a small disruption in business flow. If the firm’s business burns down, then the marrow of the business survives and business may be rebuilt. Then, what are the common back-up tools? Here are some: System-restore functions in the operating system, DVDs, USB Thumb Drives, external hard drives, online back-up solutions, multiple internal hard drives that store the data redundantly, and tape drives. The good news is that each can be classified into one of two categories: 1) easy-to-implement or 2) definitely-need-help.
The Solo or Small Practice Needs Easy-to-Implement For the solo practitioner or small firm, costs must be maintained. Sometimes, do-it-yourself solutions are the only realistic options. Fortunately, solo attorneys have many choices from which to choose. Those choices will work, however, only if attorneys know how to use the devices and are disciplined in their use. Training and discipline must be chiseled into the practice’s office procedures. The backing up to the various devices can be simplified by using back-up programs that come with the operating system or that come from third-party vendors. Schedules can be set, files can be copied from multiple locations, and the selections made so that only files that have changed will be copied (thus significantly decreasing the time it takes to back up). For simple offices, manually backing up files may be the easiest act to do. The first tool a solo practitioner should employ is his or her computer. Operating systems usually have ways to restore system settings and to copy chosen files to other locations. For example, the latest Microsoft Windows operating system can back files up with a function called File History and can save the computer’s guts with System Image Backup. Then, File History can copy critical data to an external hard drive. External hard drives are another option that is difficult to ignore. Cheaper and easier than setting up redundant hard drive arrays inside the computer, external hard drives can store duplicate data when plugged into a computer and are used with programs and applications that will copy only at scheduled times and only files that have changed. continued on page 36
Bar Association Receives Award The Pennsylvania Bar Association (PBA) presented two County Bar Recognition Awards to the Chester County Bar Association during the 48th annual seminar of the Conference of the County Bar Leaders, held from Feb. 27 to March 1 at The Nittany Lion Inn in State College. Recognized for its membership recruitment effort and its passing of the gavel ceremony, the Chester County Bar Association was one of 25 local bar associations in Pennsylvania honored this year for sponsoring projects that improve the legal profession, justice system or community. The awards are presented annually by the PBA. In an effort to grow its membership to 1,000 members, the association initiated its “Grand Challenge” during 2013. For each new member recruited by a current member, the referring member received “Bar Bucks” that could be used for events, continuing legal education and dues. Also, every member who recruited a new member was entered into a drawing for free 2014 dues. As a result of the challenge, the association’s membership increased by almost 8 percent. The association hopes to reach its membership goal during 2014. During the association’s annual meeting, its president invited all past presidents to take part in a passing of the gavel ceremony. Twenty-three past presidents were in attendance. The gavel was passed from the historically oldest to the most recent president. The event received a standing ovation from members, and the association plans to make the ceremony an annual tradition.
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Author’s Update In our last issue, I wrote an article on LinkedIn and how it and similar Social Media programs may be implicated in the new language of Rule 1.1’s Comment 8 on attorney competence in technology. I ran across an article in January that reports a story that highlights my concern that attorneys should know the basics of Social Media applications even if they do not use them. Some Social Media programs automatically send an invitation email or notice at certain times, such as when a new user joins and he or she unknowingly permits the program to access that person’s email accounts or when a contact’s category group changes. In the news story, a man’s ex-girlfriend successfully had a restraining order placed against the former lover. On the occurrence of some profile change of his Google account, Google automatically sent an email invite to her. She reported him to the police, and the police arrested him for violating the restraining order. When dealing with clients involved with Protection from Abuse Orders, I now advise my clients to review their Social Media applications and habits carefully and to adjust accordingly. - Keith E. Boggess, Esq.
Another possible tool for the redundant set-up is to store information on the Internet or, to say it in another way, in the Cloud. A law practice can employ online storage programs such as Dropbox, Google Docs, or even a subscription service to store data on a weekly basis. While online file storage has revolutionized the practice of law for solo practitioners and small firms, it contains vulnerability in that truly sensitive information is placed online in an arena that anyone can attempt to touch. If a law practice stores data online, the practice should ensure that it encrypts all data and secures access to that data with strong passwords and other measures. Strong passwords can be compromised easily by poor habits, such as taping them to the computer or leaving them in some easily accessible place. Another poor habit is not changing the password regularly, giving a human or computer program leisure opportunity to breach the security. Even with the safeguards in place, vulnerability will not disappear. Readers may recall the recent breach of credit card information for several large retailers or the revelations of how much our own government monitors electronic communication. While the risks exist, using the Cloud for storage and for a virtual office is gaining so much momentum that the legal profession may have to adapt to its use rather than trying to contain lawyers from embracing the benefits of the Internet. Each practice should review its unique situation. Thumb drives and DVDs are options as removable media, especially for storing data off-site. Today, DVDs are inferior to the large capacity thumb drives, which are not that expensive and can be used easily. DVDs are also not the best choice because of the amount of time it takes to burn data onto a disc. On the other hand, if the practice is small with small amounts of data and a big stack of blank DVDs are lying around, then there is no reason why not to use them to save money if costs are a concern. In addition to tool selection, a law practice also must identify all data to be backed up. For example, where are local emails kept? Where does the accounting program put its files? If case management software is used, where are the data and customizations kept? Those locations must be integrated in backing up. That can be done by using a back-up program to copy those files automatically, or it can be a list taped on a desk.
The Larger Firm Will Need Help Obviously, the larger firm can address the problem by engaging consultants or by having dedicated IT
Appeals and Briefs Anthony J. Vetrano
610.265.4441 staff. Trying to do back-up without help may cost a bigger firm more in the long run. While a large firm’s managers may be tempted to relax with vendors hired or staff employed, they do face a risk of not setting up the most optimal back-up scheme for the firm. Remember Maslow’s hammer? IT vendors and staff are susceptible to that as well. They may offer a solution that consists of what they are most familiar with or what they like the most. Lawyers must be careful to not blindly sign-off on whatever is pitched. Certain set-ups can be overkill or may miss an important firm need. The lawyer in charge should understand this area and the common alternatives enough to challenge the vendor or staff person so that the right tools are used in the right way. Along that line, there is another point that, if overlooked, could lead to major issues. Once the firm activates the back-up scheme, the managing lawyers may rightfully turn their attention to the practice of law—but erroneously assume that everything is safe. With spiffier gadgets come the greater risks of something going awry. Back-up schemes must be tested and must be monitored. Even the simplest of schemes must go through a simulated recovery in order to identify unseen issues. In conclusion, a successful back-up scheme has the following elements. First, the scheme has multiple backup devices and data copies. Second, the right tools are chosen to keep administrative costs manageable. Third, the data is spread in multiple, secure physical locations. Remember, the guiding principle is redundancy. Reality will shape the scope. And if you ignore this area, the sword dangling over your head just became larger.
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New Matter Archives
Editor’s Correction By Charles T. DeTulleo, Esq.
In our first quarterly hard-copy issue of New Matter I extended a greeting to all our readers. I hope that you have enjoyed the new magazine format and the continued digital version. I indicated in the message that New Matter had been published since 1985. I was in error. After checking several sources I discovered that we have records of New Matter that date back to 1980. Also, in looking over the old issues I discovered that there must be additional issues that were missing from at least a year prior, i.e. 1979. In a discussion with C. Richard (Dick) Morton, Esquire, I learned that there was in fact a series New Matter published in 1979. However, he did not have any copies of them. If any of our readers have a copy of those “Oldies but Goodies,” please contact the Bar Association staff and share the history with us.
CCBA Happenings The Boot Club convenes for its meeting in the Cloak Room Christine Zaccarelli, Cathie Voit and Lisa Comber Hall
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
6/5 Federal vs. State Softball Game 6/6 Alex’s Legal Lemonade Day
I have a feeling I’m being watched (Lisa Comber Hall)
I have a feeling I’m being watched (Rosana Chiple) Board Strategic Planning Session at The Desmond
6/12 – 6/13 Bar Sail 6/19 – 6/20 Commonwealth Court of PA Visit 7/17 Fightin’ Phils Family Picnic 8/1 Naturalization Ceremony
Packed attendance at the YLD Meeting thanks to advertising free pizza
Basel is hard at work at the Board Orientation Session
(clockwise from left) Basel Frens, Tom Hogan, Chris Zaccarelli, Lisa Comber Hall, Craig Styer, Mary-Ellen Allen
TIP THE SCALES IN YOUR FAVOR PROFESSIONAL LIABILITY INSURANCE DESIGNED SPECIFICALLY FOR LAWYERS
• Acts of Errors & Omissions • Personal Injury • Punitive Damages Where Insurable • Pro Bono Work • Fiduciary Liability • Identity Protection • Defense Costs Outside of the Limit Available • Free Retirement ERP (when insured by Lawyer Cover for 3 consecutive years)
Kevin McKernan 800-945-1810