THE AWARD WINNING PUBLICATION OF THE CHESTER COUNT Y BAR ASSOCIATION • CHESTER COUNT Y, PA www.chescobar.org
CCBA Helps to Raise Funds for Legal Aid of Southeastern PA
I HAVE THE POWER–OR DO I? A Look at Pennsylvania’s New Power of Attorney Law
IS A TOKEN A TICKET? THE STUDENT DEBT CRISIS
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 J. Stoddard Hayes Andrew Lehr Deborah Lewis Shannon McDonald John McKenna Kim Denise Morton Mary Wade Myers Kevin Ryan Karyn Seace Alan Vaskas Bill Wilson CCBA Staff Wendy Hoffman Executive Director
Giving Back................................................. 4
GIVING BACK Dear Chester County Bar Association Members:
Did You Ever Wonder?............................... 6 I Have the Power—Or Do I?..................... 8 Letter from the Court of Common Pleas..................................... 11 Divorce & Custody Forms Available Online...................................... 12 Custom Tailoring Powers of Attorney..... 14 Pa CLE Requirements Have Changed— CCBA Just Keeps on Providin’ …For You!................................................ 18 Writer Available to be “Of Counsel”...... 20 Featured Member Profile Michael C. Petock, Esquire............................ 24 Family Night at the Reading Phillies.... 25
IN EVERY ISSUE President’s Message.................................22
Emily Boulanger Communications Coordinator
Is A Token A Ticket?.................................. 26
New Matters & Other Interesting Facts ......................................32
Notice to Bar............................................ 27
From the Bench.........................................34
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.
2014 Chester County Fall Bench Bar..... 28
Ice Bucket Challenge............................... 30
The Blank Page..........................................36
From the Archives New Matter—August 1981......................... 43
Save Our Environment.............................38
The opinions expressed in this material are for general information only and are not intended to provide specific legal or other advice or recommendations for any individuals. The placement of paid advertisements does not imply endorsement by the Chester County Bar Association. All rights reserved. No portion of this publication may be reproduced electronically or in print without the expressed written permission of the publisher or editor.
If you have an idea for an article, or would like to submit content, please contact Emily Boulanger at email@example.com or (610) 692-1889. PUBLISHER: Hoffmann Publishing Group 2921 Windmill Road, Suite 4, Sinking Spring, PA 610.685.0914 x201 • hoffmannpublishing.com FOR ADVERTISING INFORMATION: Tracy Hoffmann, firstname.lastname@example.org
Dear Chester County Bar Association Members: W
e are once again hoping to get our members involved in our innovative and challenging initiative for raising funds for Legal Aid of Southeastern Pennsylvania (LASP). The Chester County Bar Association and the
Chester County Bar Foundation have each pledged $10,000 as a challenge grant to the Chester County division of LASP if we can help them raise at least $50,000. This is an increase from the $5,000 challenge grant in past years.
Legal Aid has consistently experienced a downturn in its funding from their traditional sources. IOLTA funds continue to decline drastically as have funds from Legal Services Corporation, the national organization responsible for funding many of LASPâ&#x20AC;&#x2122;s programs. Our Board of Directors approved a resolution calling for all members to contribute to Legal Aid. With this challenge grant initiative, we would like to raise funds well in excess of our $50,000 goal. You will be receiving a telephone call from one of the members of our board or the Pro Bono Committee to solicit your donation. We will have a concerted effort to involve all members of the Bar in our fundraising efforts. Please consider this letter as a challenge to you, personally, to be one of those who help us reach our goal. The Chester County Bar Association has increased its giving over the years and we would like to continue that trend. Please help us reach our goal of $100% participation by contributing financially and/ or volunteering for one of our pro bono programs. You can send your check to the bar association or donate online at https://chescobar.site-ym.com/donations/donate.asp?id=8964. Thank you for your continued support of Pro Bono, LASP and this Association.
Happy Holidays, Lisa Comber Hall, Esquire, President Chester County Bar Association John F. McKenna, Esquire, Chair Pro Bono Committee
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Did You Ever
WONDER? By Charles T. DeTulleo, Esquire
vivor of the former Colonial government. know you can do it. You are a college grad She held the position of Secretary of and I am sure they taught you this at your Education before the destruction of the Alma Mater. Colonies. Given the current list below, So here is where you look to see what she would have been sixteenth in line to our country has decided concerning the become President of the United States. Presidential succession. I take no position That brings me to my current Did You as to the succession but do ask the reader Since I happen to be a Sci-Fi fan I Ever Wonder topic. I start by asking our to consider the individuals who currently thought of the Battlestar Galactica series. readers if they can recite the Presidential serve in the below positions. And just as Ironically I did not think of the way the succession of our government. Oh, I know important, how they are placed in their special effects were done or the characters that you know the Vice President (Joseph position, especially since many are not and how they played their parts. What Robinette Biden. Bet you didn’t know elected but are appointed by the President did come to mind was in their world they his middle name) takes over if something with advice and consent of the Senate. had a governmental hierarchy the same as happens to the President. But what if both There are only elected three people to their our United States. And when the Cylons of them are gone? Who takes over next? office who are in the succession, i.e. the (basically robots gone rogue) decided to I believe that many of our readers will Vice President, the Speaker of the House wipe out their world, there was a “…rag know that the Speaker of the House of and the President Pro Temp of the Senate. tag fleet” of space ships and passengers Representatives takes over (John Andrew All the rest are appointed positions. that fled their planet. Eventually someone Boehner). And then it is the President pro I have included the names of the current wondered who was in charge. As it turns tempore of the Senate (Patrick Leahy). individuals holding the positions below. out, the search began for the Presidential And now I think there will be a long They are not part of the statutory quote. succession of their world. The actress Mary McDonnell ultimately became President silence while you think who it is that Laura Roslin. Roslin was the senior sur- comes after all of the above. Come on, I Continued on page 7 think there are many of you out there that think about certain topics and wonder about the answer. So many questions and so few answers. There are times when things around us seem to just function without anyone ever noticing just why.
www.chescobar.org Continued from page 6
3 U.S.C. § 19
§ 19. Vacancy in offices of both President and Vice President; officers eligible to act.
(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President. (2) The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this subsection.
(b) If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President. (c) An individual acting as President under subsection (a) or subsection (b) of this section shall continue to act until the expiration of the then current Presidential term, except that--
(1) if his discharge of the powers and duties of the office is founded in whole or in part on the failure of both the President-elect and the VicePresident-elect to qualify, then he shall act only until a President or Vice President qualifies; and (2) if his discharge of the powers and duties of the office is founded in whole or in part on the inability of the President or Vice President, then he shall act only until the removal of the disability of one of such individuals. (1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, (John Forbes Kerry) Secretary of the Treasury, (Jacob Joseph “Jack” Lew) Secretary of Defense, (Charles Timothy “Chuck” Hagel) Attorney General, (Eric Himpton Holder, Jr.) Secretary of the Interior, (Sarah Margaret Roffey Jewell) Secretary of Agriculture, (Thomas James
“Tom” Vilsack) Secretary of Commerce, (Penny Sue Pritzker) Secretary of Labor, (Thomas Edward Perez) Secretary of Health and Human Services, (Sylvia Mary Mathews Burwell) Secretary of Housing and Urban Development, (Shaun L. S. Donovan) Secretary of Transportation, (Anthony Renard Foxx) Secretary of Energy, (Ernest Jeffrey Moniz) Secretary of Education, (Arne Duncan) Secretary of Veterans Affairs, (Acting Secretary Sloan D. Gibson IV) Secretary of Homeland Security (Jeh Charles Johnson). (2) An individual acting as President under this subsection shall continue so to do until the expiration of the then current Presidential term, but not after a qualified and prior-entitled individual is able to act, except that the removal of the disability of an individual higher on the list contained in paragraph (1) of this subsection or the ability to qualify on the part of an individual higher on such list shall not terminate his service. (3) The taking of the oath of office by an individual specified in the list in paragraph (1) of this subsection shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President. (e) Subsections (a), (b), and (d) of this section shall apply only to such officers as are eligible to the office of President under the Constitution. Subsection (d) of this section shall apply only to officers appointed, by and with the advice and consent of the Senate, prior to the time of the death, resignation, removal from office, inability, or failure to qualify, of the President pro tempore, and only to officers not under impeachment by the House of Representatives at the time the powers and duties of the office of President devolve upon them. (f ) During the period that any individual acts as President under this section, his compensation shall be at the rate then provided by law in the case of the President. You can now challenge that 5th grader to a test that you should win.
I HAVE THE POWER – Or Do I? A Look at Pennsylvania’s New Power of Attorney Law By Karyn L. Seace, Esquire
ct 95 of 2014 was signed into law on July 2, 2014. It makes sweeping changes to Pennsylvania’s Power of Attorney Law. These changes affect everything from the language used to the execution of the document. Certain of these changes took effect immediately and others take effect on January 1, 2015. All Powers of Attorney executed on or before December 31, 2014, are grandfathered. The changes are voluminous and my effort below is only a thumb sketch. [Unless otherwise indicated, all sections refer to Title 20 of the Pennsylvania Consolidated Statutes.]
either §5606 or §5608(e). A person who wrongly refuses to accept the Power of Attorney is subject to: (i) civil liability for any proximately caused pecuniary harm to the economic interest of the Principal; or (ii) a court order mandating acceptance. •
CHANGES IN EFFECT IMMEDIATELY:
• Changes to Execution Requirements
These are the only changes that took effect immediately.
CHANGES IN EFFECT ON JANUARY 1, 2015:
The following changes go into effect on January 1, 2015.
Anyone can insert the date in the Power The liability of parties who in good of Attorney [§5601(b)(1)]. faith accept the Power of Attorney has been limited. There are new provisions Another individual may sign only if involving the liability for a refusal to accept the Principal is unable to sign but a Power of Attorney (§5608.1). A person “specifically” directs [§5601(b)(1)]. shall either: (i) accept it; or (ii) not later than seven business days after presentment, The execution of a Power of Attorney request either an affidavit (§5606), or a must now be acknowledged (non-agent: certification [§5608(e)]. Not later than notary or other individual authorized) five business days after being provided with [§5601(b)(3)(i)] and witnessed by two the affidavit or certification, a person must: additional individuals who are at least (i) accept it; or (ii) provide a substantial 18 years of age [§5601(b)(3)(ii)]. The basis for making a further request under “specifically directed signer” cannot
be a witness. The Agent cannot be a witness. The Notary Public (or other individual authorized) cannot be a witness [§5601(b)(3)(ii)].
Mandatory Language Changes to Notice to Principal [§5601(c)]
The “NOTICE” must be in all caps. The sentence about the Agent keeping separate funds should be deleted entirely and in lieu thereof, the following language should be inserted:
• Your Agent must act in accordance with your reasonable expectations to the extent actually known by your Agent and, otherwise, in your best interest, act in good faith and act only within the scope of authority granted by you in the Power of Attorney. • The law permits you, if you choose, to grant broad authority to an Agent under Power of Attorney, including the ability to give away all of your property while you are alive or to substantially change how your property is distributed at your death. Before signing this document, you should seek the advice of an attorney at law to make sure you understand it.
Continued on page 9
www.chescobar.org Continued from page 8
• Mandatory Language Changes to Acknowledgement of Agent [§5601(d)]
The following language should be used in the Agent Acknowledgment:
I, __________, have read the attached power of attorney and am the person identified as the Agent for the Principal. I hereby acknowledge that when I act as Agent:
• Witness Requirement Also Does Not Apply To, and Acknowledged Before Notary or Other, and Fiduciary Relationship Now Also Applies To: [§5601(e.1.1)]
• Limitation on Applicability in Health Care Power of Attorney [§5601(e.2)]
(ii) A power must now be coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a loan or other credit transaction; • (iv) A proxy or other delegation to exercise I shall act in accordance with the voting rights or management rights Principal’s reasonable expectations to with respect to a legal entity; and the extent actually known by me and, otherwise, in the Principal’s best interest, (vii) A power created on a form prescribed act in good faith and act only within the by a Commonwealth agency, political scope of authority granted to me by the subdivision or an authority or instruPrincipal in the Power of Attorney. mentality of the Commonwealth or a • political subdivision.
Mental Health Care Power of Attorney has been added. Acknowledgment before notary or other and Agent’s duties do not apply; but, witness requirement does apply.
The phrase “good faith” has been added. Gifts (§5601.2) The provisions of §5601.2 have been repealed. The provisions for gifting are contained in §5603.
Agent’s Duties (§5601.3)
This section is entirely new. It essentially divides the duties into two types of categories: (a) those that cannot be modified or waived [(i) act within known reasonable expectations of the Principal and in the best interest of the Principal; (ii) act in good faith; and (iii) act within authority]; and (b) those that can be modified or waived (act loyally, separate funds, not create a conflict of interest, ordinary competence, record keeping, cooperate with HC POA, and preserve estate plan).
• Non-liability of Agent [§5601.3(c)]
The Agent is not liable if: acts in good faith; care, competence and diligence for best interest of Principal even if Agent also benefits even if conflict of interest; special skills will be considered in determining care, competence and diligence; if no breach of duty Agent is not liable for decline in property; if care, competence and diligence are used in delegating and monitoring person, Agent is not liable for error of judgment.
• Disclosure [§5601.3(c)]
The Agent only needs to disclose records, upon request, within 30 days (60 with substantiated reason) to the: Principal, guardian or other fiduciary, governmental agency protecting Principal, and Continued on page 10 New Matter
CCBA Feature Continued from page 9 personal representative (upon Principal’s death); or upon court order.
• Items That Require Specific Authority (§5601.4)
The following “hot” items now require specific authority (and even then it only applies to certain Agents): (i) create/changes to: inter vivos trust, rights of survivorship, beneficiary designations; (ii) making gifts; (iii) delegation of authority/exercise of fiduciary powers; (iv) waiver of rights to be a beneficiary; and (v) disclaimers.
Attorneys are still able to incorporate by reference §5602(a), although there are some changes §5601.4(c).
If there are multiple provisions on the same subject, the broadest scope applies §5601.4(e).
The Power of Attorney controls property owned before it was executed as well as property acquired after it was executed, no matter the situs of the Principal or the property §5601.4(f ).
• Form of Power of Attorney §5602
The power to engage in life insurance transactions includes annuities now §5602(a)(17). But there is no longer an automatic power of change beneficiaries.
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Call Christine at (610) 429-4020. 115 Westtown Road, Suite 202 | West Chester, PA 19382 CHenningan@DivorceWealthStrategies.com
• Filing and Recording §5602(c)
It must be an originally executed Power of Attorney now. There are provisions covering electronic formats.
• Copy of Power of Attorney §5602(d)
Copy has same effect as original in all things but recording.
• Gifts [§5603(a.1)]
The provisions of §5601.2 have been repealed. The Agent’s ability to make gifts has been further limited. If you want someone other than a spouse, an ancestor or a descendant to be your Agent and to be able to make gifts, the power of attorney must specifically state that they can do so. Further, annual exclusion gifts can only be made: if consistent with Principal’s known objectives; or, if unknown best interest of Principal based on: value of estate, foreseeable needs, tax savings, eligibility for benefits, and history of making gifts.
• Liability as to Genuineness §5608(c)
May rely on genuineness with immunity unless actual knowledge to the contrary.
• Validity §5611
Requirements for a military Power of Attorney have been added.
• Principals of Law and Equity §5612
Supplement this law.
As I am sure all of my colleagues have concluded, some of these changes are good and some are really bad. It is my considered opinion that preparation of Powers of Attorney in the future is going to have to be seriously personalized to the needs of the client. I find this refreshing in a world where we can zoom around the internet and find legal documents! The new execution requirements are sure to present problems for the solo’s out there.
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From the Desk of Judge Phyllis R. Streitel
COURT OF COMMON PLEAS Chester County, Pennsylvania
August 18, 2014
Dear Wendy, Genya, and Staff of CCBA, Thank you so much for graciously accommodating the courtâ&#x20AC;&#x2122;s every need in holding one day of a jury trial in the Bar Association building while the Justice Center was closed due to a water main break. You arranged the third floor space as a courtroom and accommodated 28 people, including the jury, sheriffs, counsel, defendant, court staff, judge and police officer, on a momentâ&#x20AC;&#x2122;s notice. While the jury later deliberated and we had no offices to which we could return, you provided alternate jurors, court staff, counsel and sheriffs, space in which to wait. We were spread across two floors and in five rooms. And you took it in stride, as if it occurred every day. Your assistance saved the 14 jurors from spending a fourth day in service and spared all court employees involved, from having to cancel busy schedules the next day, to make up for a lost day in court. Thank you very much, on behalf of all involved. Sincerely,
Phyllis R. Streitel
DIVORCE & CUSTODY FORMS Available Online
By Carolyn Moran Zack, Esquire Family Court Master & Member of CCBA Pro Bono Committee
or those representing themselves in divorce and custody matters, proper pleading and compliance with the Rules of Civil Procedure has been facilitated thanks to an initiative by the Administrative Office of Pennsylvania Courts (“AOPC”) to publish standardized forms on the court website. As of October 2, 2014, the “Representing Yourself ” page at
be completed online and then printed for signature and filing, and each form is accompanied by a list of instructions specific to that form.
The AOPC has rooted this effort in endorsement of the principle that access to the Courts is a fundamental right of all Pennsylvanians and recognition of the inability of some litigants to pay counsel http://www.pacourts.us/learn/representing-yourself to represent them in family court proceedings. The publication of online family includes resources for individuals without forms is a result of the significant number the ability to retain counsel to file and serve of pro se civil filings in these types of matbasic pleadings in no-fault divorce and ters and is intended to assist these litigants custody matters. The child custody page in filing their forms and understanding includes blank forms for: a self-represented the court process. However, the website party’s entry of appearance, complaint for is not intended to be a substitute for lecustody (parents), complaint for custody gal representation or advice. The website (grandparents), petition for modification, cautions individuals repeatedly that they petition for civil contempt and notice of should represent themselves only if they proposed relocation and forms for service, have no other option since they can lose among others. The divorce page includes important rights. In addition, self-repa link to a detailed description of divorce resented litigants are reminded that they procedure for non-complicated divorce will be held to the same standards as an matters where there are no economic attorney admitted to the Pennsylvania bar claims raised by either party. The divorce and, therefore, must be familiar with the forms include: a self-represented party’s statewide and local rules of court. Both entry of appearance, complaint for divorce the divorce and the custody pages have with notice to defend, affidavit of consent links to county-specific forms for the 67 and affidavit of two-year separation, no- counties; the link for Chester County is tice of intention to request entry of the to the Court Administration page of the divorce decree, waiver of notice, affidavit Chesco.org website, which in turn links of non-military service and praecipe to to local custody and divorce filing infortransmit the record and forms for service. mation and forms. Since the local practice The forms are fillable, such that they can and procedure may change from time to
time (and the updated information may not yet be available on the local website), the Representing Yourself website encourages litigants to contact the local county court administration before filing to make sure that they have met all of the up-to-date requirements. Additional resources on the Representing Yourself website include individual county contact information, lawyer referral services (including Legal Aid), a legal glossary and a link to the Pennsylvania child support website. In addition, a brief video featuring Supreme Court Justice Max Baer, a former Allegheny County family court judge who oversaw the effort to publish these forms online, highlights for pro se litigants the importance of retaining counsel if they can do so, and provides tips for navigating the court website if individuals choose to represent themselves. While some practitioners have expressed concern that the availability of online forms may assist litigants who would otherwise hire an attorney, most of these litigants will heed the ample warnings on the website not to represent themselves. The website is a welcome addition for truly indigent litigants for whom hiring an attorney is simply not an option. Having access to these online forms and information will likely serve the intended purpose of reducing confusion and mistakes made by these pro se litigants and help families with limited funds have greater access to justice.
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IS A TOKEN A TIC
THE STUDENT DE
CUSTOM TAILORING Powers of Attorney Pennsylvania’s New Act 95 By Mary LaSota, Esquire provide the agent with an express grant of authority to act, the authority cannot be inferred from a general grant of authority and, therefore, the agent will not have authority to act over certain property and interests of the principal. New Section 5601.4(a) of Act 95 requires a specific grant of authority for an agent to: (1) Create, amend, revoke or terminate an inter vivos trust in any manner other than as permitted using a “short form” that allows the designation of the power of an agent; (2) Make a gift;
he passage of Act 95 into law this past July has finally nailed shut the coffin on one size fits all powers of attorney. If you have been operating from a one size fits all mentality, it’s time to dust off your scrivener’s quill and start customizing your powers of attorney provisions to fit your client’s needs and objectives. Some sweeping changes in Act 95 include new execution requirements, witnesses and notarization requirements, new notice and acknowledgment requirements, new requirements for the acceptance and reliance on powers of attorney, and adoption of provisions that closely conform to the Uniform Power of Attorney Act. This article discusses the need to custom tailor
powers of attorney from an estate planning perspective in order to craft a document based on a client’s needs and objectives.
The 8 Hot Powers
Under prior Pennsylvania law, express grants of authority were only required for the power to make gifts or to delegate authority to another person to act on behalf of the agent. In an effort to curtail the misuse of powers of attorney, Section 5601.4(a) of Act 95 incorporates the provisions of the Uniform Power of Attorney Act with respect to eight actions that require an express grant of authority. Now, if a power of attorney signed on or after January 1, 2015, does not specifically
(3) Create or change rights of survivorship; (4) Create or change a beneficiary designation; (5) Delegate authority granted under the power of attorney; (6) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; (7) Exercise fiduciary power that the principal has authority to delegate; or (8) Disclaim property, including a power of appointment.
Continued on page 15
www.chescobar.org Continued from page 14 Just to make it a bit more interesting, the eight hot powers cannot have been prohibited by another “agreement or instrument to which the authority or property is subject.” Section 5601.4(a). So the cautious scrivener should dig deeper and request that the client provide copies of all previously signed powers of attorneys, instruments or other agreements, including those documents signed at the request of financial institutions, which might contain prohibitive language.
when making gifts. An agent is no longer Section 5601.4(a)(8) as one of the eight hot required to engage in “prudent estate plan- powers. The Section 5601.4(b) default rule ning or financial management” in a manner discussed above also applies to disclaimers consistent “with the known or probable by an agent. intent of the principal with respect to the disposition of the estate.” Instead, Section Both the power to release and the power 5603(a.1)(1) places a burden on the agent to disclaim are common estate planning to “attempt to preserve the principal’s estate techniques used to minimize taxes. For plan” if the principal’s objectives are known example, the power to disclaim can achieve by the agent. If unknown, then the agent a plethora of tax purposes, such as cormust consider whether the making of the recting provisions in a will or estate plan gift is in the best interest of the principal resulting from a failure of the testator to based on all relevant factors, including: contemplate the changes in the tax law, The Power to Make a Gift (i) the value and nature of the principal’s correcting scrivener’s mistakes, increasing Act 95 repeals the provisions of prior property, (ii) the principal’s foreseeable or decreasing a marital deduction, generPennsylvania law relating to gifts, and obligations and need for maintenance, ation-skipping planning, and qualifying substitutes the provisions of the Uniform (iii) minimizing taxes, (iv) eligibility for an estate for special tax elections. Non-tax Power of Attorney Act. Although the government assistance and programs, purposes include terminating a trust, adprior provisions and the new provisions and (v) the principal’s previous history of justing beneficiary shares, buying peace in are generally the same, the new provisions giving gifts. Finally, an agent that acts in the family, and Medicaid planning. When eliminate the prohibition against making good faith is not liable to a beneficiary of contemplating the addition of the power gifts to persons other than permissible the principal’s estate for failure to preserve to disclaim property in a client’s power donees without express authority. New the principal’s estate plan. Of course, the of attorney the scrivener should consider section 5603(a.1) defines the scope of power to make a gift can be limited or in what manner the agent would use the authority to make a “gift of any expanded to fit the cli- power, and whether the power would serve the principal’s property” ent’s planning needs. For a future purpose beneficial to the client. “outright to or for the example, it’s not unusual benefit of a person.” At to grant a very broad The Other Estate Planning Powers first glance the new lanTwo new “hot powers” are the power to gifting power to a spouse guage appears broad, and who has a shared history (1) create or change rights of survivorship yet, the statutory power of decision-making with (subsection (a)(3)), and (2) create or change to make a gift “outright the principal enabling a beneficiary designation (subsection (a) to or for the benefit of the spouse-agent to (4)). Unfortunately, these two “hot powers” a person” is not unlimmake informed future can be abused and when invoked can cirited. Section 5601.4(b) gifting decisions. The suc- cumvent a principal’s will. For example, if creates a default rule cessor agent may not share that a client’s estate consists only of assets with prohibiting gifting by an history of decision-making or, if a beneficiary designations an unscrupulous agent who is not an ancestor, spouse, child-agent, there may be significant agent may change the beneficiary desigor descendant or gifting by an agent to an sibling rivalry within the family that could nations thereby changing the principal’s individual the agent is legally obligated impact gifting. entire estate plan. The addition of these to support. For example, a non-relative two hot powers to a client’s power of agent with the authority to gift cannot The Power to Disclaim Property attorney should be carefully considered make a gift to himself or his dependent Act 95 also repeals all provisions sur- before including them in the principal’s without express authority within the power rounding the power of an agent to disclaim. power of attorney. One drafting option is to of attorney. In contrast, a spouse-agent Section 5602(a)(5) had provided an agent severely limit the powers. For example, an with the power to gift could continue the the power to “to disclaim any interest in agent’s authority to create or change rights annual family gifts without the need for property.” Section 5603(e) had defined of survivorship or beneficiary designations additional express authority within the that power to disclaim as (1) the power to can be restricted to specifically identified disclaim any property or interest, and (2) property interests, accounts, or contracts. power of attorney. the power to release powers or interests. Another option is to limit the beneficiary The new provisions also change the stan- Act 95 repeals both of these sections and changes to those individuals already named dard under which an agent may be found includes the power to “disclaim property, in the principal’ estate plan. Continued on page 16 to have violated a duty to the principal including a power of appointment” in New Matter
CCBA Feature Continued from page 15
General Grants of Authority
However, a well-drafted power of attorney should avoid incorporating by reference the general grants of authority. The use of brief descriptive labels to name the areas of authority should also be avoided. The scrivener’s drafting burden may be eased, but the short labels do not provide either the principal or the agent the actual scope of authority granted. When looking for guidance the agent will first examine the document then, finding nothing useful, will likely misinterpret the powers granted and wield his scope of authority to the detriment of the principal.
Section 5601.4(c) and Section 5602 of Act 95 still provide a general grant of authority empowering an agent “to do all acts that a principal is authorized to perform” including the authority to act on the principal’s behalf with respect to the following: • Real property • Tangible personal property • Stocks and bonds • Commodities and options • Banks and other financial institutions • Insurance and annuities
Client’s Needs and Objectives
• Estates, trusts, and other beneficial interest
When drafting a power of attorney consider the needs and objectives of the client. Is the client’s focus succession planning? Medicaid Planning? Tax Planning? Based on the client’s answer, the power of attorney should be drafted to fit. For example, if the client is focused on tax planning then the
• Claims and litigations • Personal and family maintenance • Benefits from governmental programs • Retirement plans • Taxes
power of attorney may include broad gifting language. Alternatively, if the client’s objective is to preserve their established estate plan, the power to gift may be limited, not only to the amount of the gift, but also limited to specific donees or classes of donees. Whether the powers are one of the express or general powers, the power of attorney may be drafted to grant some of the powers only to the primary agent, who is likely the spouse, and not extend those same powers to successor agents. The passage of Act 95 should be seen as an opportunity to thoroughly understand a client’s needs and objectives and to craft a power of attorney to match.
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U.S. Special Flag Flying Days January 1
New Year’s Day
Inauguration Day (every fourth year)
3rd Monday in January
Martin Luther King, Jr., Birthday
3rd Monday in February
Army Day (Navy only)
Thomas Jefferson’s Birthday (Army only)
Pan American Day (embassies in Latin America)
Loyalty Day/Law Day (Army only)
2nd Sunday in May
2nd Monday in May
Peace Officers Memorial Day
3rd Saturday in May
Armed Forces Day
National Maritime Day (Army & Navy only)
Last Monday in May
3rd Sunday in June
Fathers Day (Army only)
Korean War Armistice Day
National Aviation Day (Army only)
1st Monday in Sept
3rd Friday in Sept
POW/MIA Recognition Day
Last Sunday in Sept
Gold Star Mothers Day (Army only)
2nd Monday in Oct
Columbus Day (October 12 at Foreign Service posts)
Navy Day (Navy and Marine Corps only)
Marine Corps Birthday (Marine Corps only)
4th Thursday in Nov
Pearl Harbor Day
Pan American Aviation Day (embassies in Lat America)
Pennsylvania CLE Requirements Have Changed –
CCBA Just Keeps on Providin’…
Chapter 82 recently was amended by the Pa High Court on January 23, 2014 (see 44 Pa.B. 768), and the new rules apply to the one-year compliance period beginning on May 1, 2014, and to all compliance periods commencing thereafter. In other words, the new rules apply to those annual compliance periods which conclude in 2015 (and then the new rules apply annually, thereafter). By Supreme Court Order, Pa.R.C.L.E. Rule 108 (e) has been changed to increase the amount of credits lawyers may earn via alternate delivery methods from four (4) to six (6) credits annually. The board also adopted a regulation change to increase the ethics component of the annual CLE requirement from one (1) to two (2) credit hours. The total number of CLE credits required annually will remain 12 hours.
By John R. Embick, Esquire Chair, CLE Committee
The ethics credit increase marks the first significant modification to the CLE requirement since 1996 when the total requirement expanded from 9 credits to 12 credits. The new provisions for distance learning will provide lawyers the option of completing up to half of their annual requirement through distance-learning and computer-based education.
Both changes are the result of considerable research and consideration by the he Pennsylvania Continuing Legal The Pa CLE Rules define the responsi- PACLE Board. Education Board has announced bilities of Pennsylvania Lawyers to pursue changes in the Pennsylvania CLE courses of Continuing Legal Education. “These updates to the rules and regularules and regulations that will permit These rules are promulgated by the tions for CLE in Pennsylvania recognize more credits to be earned via distance Pennsylvania Supreme Court and are ad- the changing needs and realities of modern learning and will increase the annual ministered by the Pennsylvania Continuing law practice,” said Kenneth Argentieri, ethics requirement. Legal Education Board. The Rules are cited CLE Board Chair. “We hope that these to as “Pa.R.C.L.E.” and are found, generally, changes will help lawyers to better serve The executive summary is as follows: (a) at 204 Pa. Code Chapter 82. their clients and the administration of the annual CLE credit hour minimum justice in our Commonwealth. Ethics of 12 hours is unchanged and stays the The CLE Board is responsible for admin- and professionalism is at the heart of same; (b) the ethics requirement has been istering the rules pertaining to continuing what we do.” increased to 2 hours per annual compliance education for attorneys. This responsibility period (up from 1 hour annually); and (c) includes monitoring each attorney’s comThe ability to satisfy a portion of the the number of hours which can be earned pliance with the requirements, notifying annual CLE requirements through disby alternative delivery methods (on-line, attorneys of CLE status, and accrediting tance learning modalities has been an pod-casts, etc.) has been increased to 6 CLE providers and courses. Locally, the option for Pennsylvania lawyers since 2003. hours per annual compliance period (up Chester County Bar Association is an According to the CLE Board, the increase from 4 hours annually). accredited CLE provider. Continued on page 19
www.chescobar.org Continued from page 18 Your Chester County Bar Association continues to work on courses and methods of providing CLE credits to bar members. This is a huge benefit of your local bar membership. In the last several years, the CCBA has organized the Spring and Fall Bench Bar Conferences. Attendance at these two events provides lawyers an opportunity to earn all of their annual CLE credits at a very affordable price. in the number of credit hours which can be logged through distance-learning CLE courses, reflects increasing comfort in the reliability and efficacy of these learning modalities.
each year. These “home grown” CLE offerings are a stage for many Chester County lawyers to showcase their considerable legal talents, and provide convenient, affordable opportunities for local bar members to earn CLE Credits. To access the CCBA calendar of CLE courses, navigate to: www.chescobar.org. If you are interested in serving on the CLE Committee, please contact Wendy Leeper. (firstname.lastname@example.org)
In addition, the CCBA permits members to gain free CLE credit hours through attendance at committee and section OK, now go forth, and learn and earn meetings. The popular Bull and Beer ses(CLE credits)! sions afford bar members an opportunity to earn free CLE credits. At various times through the year, a number of additional, free CLE opportunities are announced (e.g., Commonwealth Court Visit on June 19th).
The CLE Board’s website offers several online tools that help attorneys locate educational opportunities and track their CLE compliance. To access these services, and for more information on Continuing Finally, the CCBA Continuing Legal Legal Education in Pennsylvania, please Education Committee manages and advisit: www.pacle.org. ministers many “home grown” CLE courses
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Writer Available To Be
By Barry Rabin, Esquire
was thinking the other day about what should be my next major goal in the practice of law, now that I am heading into the beginning of my (gulp) fourth decade in practice.
The answer: I want to be “Of Counsel” to your firm!
That’s right. Having fought my way through day after day of more than thirty years of successful law practice, I find myself in the following situation: (a) I have hundreds of happy current and former clients (the ones who aren’t dead, anyway, which most of them aren’t). (b) Thanks to (a), I have lots and lots of legal work to do, which keeps me busy for most of the waking hours of my days and evenings. (c) I’m kind of tired of doing this stuff. That’s why I’m ready to be your firm’s “Of Counsel.”
ing addresses and phone numbers (subject to the Pennsylvania R.P.C., of course). You find a way to get all of their legal work done. And we split the money. And I don’t mean 50/50 either. Trust me, we can come up with a percentage that works for you. So what are my duties as your “Of Counsel”? Plenty. I’ll have the burden of doing lots of things that keep me in the media spotlight. All positive, of course. Things like writing columns for New Matter, serving on local charitable boards, doing important work for the Bar Association, and the other things I used to enjoy (before I became “successful”) like making radio and T.V. appearances, writing Op-Ed columns (your opinion this time, not mine), and a return to the songwriting and musical career that earned me dozens and dozens of dollars back in the old days. Trust me, this can work.
It’s not that I’m complaining, mind you. It’s just that I’ve Here’s the deal: You give me a nice office with a window, preferably in West Chester (where the arugula and kale seem to be figured out that spending so many years and so much energy freshest these days). I give you the list of all of my clients, includContinued on page 21
www.chescobar.org Continued from page 20 trying to do good legal work for people, and building up great, lasting relationships with my clients, have resulted in my now being able to do... well, more legal work!
None of which was in the plan (assuming that I ever had one, which I frankly can’t remember). What good is building up a good reputation if you have to keep working to maintain it? Instead of slaving away at my current attractive offices in Downingtown (free parking, handicapped accessible, too much rent), I could be having leisurely business lunches at some nice dining spots on Gay Street, saying “Hi Judge!” as I walk down the street to guys I used to call Bill or Dave (or Phyllis, not a guy), or mentioning your firm’s name repeatedly as I comment on critical issues of public concern on local radio or T.V. It’s not that I’m not having fun doing hours and hours of legal work every week (okay, I’m not). It’s just that I could be having a whole lot more fun doing less of it, and at the same time bring in more of it for you. A couple of years ago, I received a nice-looking announcement card in the mail from one of the many highly-regarded law firms in the county (like yours). When I opened it up, it said the following: “THE LAW FIRM OF (NAME OF FIRM HERE) IS PLEASED TO ANNOUNCE THAT (NAME OF HIGHLY-RESPECTED-ANDMUCH-LIKED-LOCAL-ATTORNEY HERE) HAS BECOME OF COUNSEL TO THE FIRM.”
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Intrigued, I called up the attorney, who The reply, as I recall, was that they didn’t happened to be a friend of mine, to con- have any specific expectations of him. gratulate him. I then asked him what “Of Counsel” meant. That’s the job I want. Operators are standing by! His answer was that when they had asked him to come in and be “Of Counsel” The writer currently practices law in Chester to the firm, he had readily agreed. Only County, and is (we’re not kidding) available. later had it occurred to him to ask one of the partners exactly what their specific expectations were of him in the new role. New Matter
President’s Message FEBRUARY MARC
For the Love of Madeline Jewelry Auction President’s Dinner
Spring Bench Bar
hen the gavel was placed in my hands at last year’s annual meeting, I have to admit, the thought of being the 2014 President was slightly terrifying. Then, I glanced at the Board of Directors flanking me on both sides, my colleagues in the audience and our Executive Director and her staff in the wings. When my eyes connected with their smiling faces, I realized that I was not alone and that this year was our year and together we were going to make it great.
It’s Not Where You Are In Life, It’s Who You Have By Your Side That Matters (Author Unknown)
The success of the CCBA is the result of the collective and cumulative efforts of a huge number of dedicated people. As a result of their continued efforts, the CCBA consistently provides value and opportunities to its members, and benefits to the community through its many services and programs. Our very hard working Board, our remarkable Executive Director, Wendy Leeper, her staff and the many members serving on Sections and Committees make the CCBA ’s ideas and dreams come to life. They keep our Association motivated and moving forward year after year. Because of their dedication, we have been able to sponsor numerous events, including those benefiting Legal Aid and various community organizations (For the Love of Madeline auction, Helping through Hoops benefit, Wings for Success, Earth Day recycling project, Alex ’s Lemonade Stand and Habitat for Humanity). We are also able to provide a variety of continuing legal education opportunities through our abundance of CLE offerings, and reach to our members throughout our County with our traveling Member Appreciation Luncheons, held this year in Malvern, Kennett, Exton and Phoenixville. Our members are fortunate to have very cordial relations with our esteemed Judges and, through combined endeavors this past year, the CCBA was able to hold numerous Naturalization Ceremonies, host the annual Law Day Luncheon and welcome the Commonwealth Court to Chester County, where the Court held a special session in our Justice Center.
Passing of the Gavel
Strategic Planning Task Force
Law Day Luncheon
Sponsor Appreciat ion
The Past Presidents’ Council was established this year to enable our members to benefit from the experience of our past leaders through CLEs, mentoring and other programs. The Archives Committee was reinstated so that the history of our Bar and Court can be preserved for future generations. Finally, with the renovation of Courtroom One in the Historic Courthouse, some of the Bar Association’s ceremonial events will now be held in this beloved Courtroom, including this year’s Annual Meeting on December 4th. Of course, there is no shortage of fun at the CCBA. Socializing with each other is an important part of being a member and having fun is something that we do quite well. Let ’s be honest—in our business, “if we couldn’t laugh, we would all go insane” (thank you Jimmy Buffett). There were numerous opportunities to share some laughs with fellow Bar members this year including but not limited to…the Presidents Dinner, B.U.L.L. Sessions, Bar Sail, Judges’ softball game, Phillies Family Event and, of course, the Fall Bench Bar. I sincerely hope that you were able to attend at least some of these events and that you had a great time! For those members whose contact with the Bar Association is limited to reading New Matter, I encourage you to get involved in our many Sections, Committees and other activities of interest. In addition to all of the benefits of membership outlined in this article, you will also gain the opportunity to develop close (hopefully lifelong) friendships with fellow members of the Bar. This, in my opinion, is the best part of being a CCBA member. Thank you for the opportunity I was provided this year and for your friendship. It has been a tremendous privilege to serve as your President.
Annual Bar Sail
Family Picnic at Re
Lisa Comber Hall, Esquire, President
ALS Ice Bucket Challenge
Fall Bench Bar Conference
tion Luncheon vision Meet Young Lawyers’ Di
ing New Matter
CCBA Featured Member Profile
Michael C. Petock, Esquire At-A-Glance: Michael C. Petock is an attorney and member of the Valley Forge-based intellectual property law firm of Petock & Petock, LLC. His practice is concentrated on patent, trademark and copyright matters and IP-related litigation. Michael received his J.D. from Temple University School of Law and is an active member of the Chester County Bar Association. He is the past chair of the trademark, copyright and unfair competition section of the Philadelphia Intellectual Property Association. Michael regularly presents on a wide range of IP related topics including trademark and copyright practice, domain name and internet matters, rights of publicity and IP dispute resolution. On the non-legal side, Michael lives with his wife Audrey and 5-year-old son Keehan in Phoenixville. He is an avid (albeit less frequent these days) mountain biker, snowboarder and surfer. His favorite travel spots are Colorado and Costa Rica.
Of Personal Interest Where are you living now?
Who is the person you are most interested in meeting?
What was your first job?
What is the last book you read?
What word best describes you?
What is your favorite TV show?
Where would we find you on a Saturday afternoon?
What has been your best, worst and toughest decision?
Fly fishing with my son (you might want to check my office first, though).
What is your favorite way to spend free time? Surfing, without question.
I would not leave home without… My contact lenses in.
What is your greatest extravagance? My personal trainer.
What is the honor of which you are most proud?
Being a law partner with my dad for ten years and stepping into his shoes when he passed away in March.
What is the most important lesson you’ve learned? Never doubt your value.
24 | N e w
It’s too late now, but Steve Jobs. He changed the world.
McCarthy on Trademarks.
Eastbound & Down. (I love anything about baseball.) My best and toughest decision was deciding to go into practice with my dad right out of law school rather than working at a firm first. I truly learned from the best. My worst decision? Objection, assumes facts not in evidence.
What do you like best about your job?
I was driving back from a business lunch with a long time client the other day and realizing that somewhere along our attorney-client journey; this guy has become one of my best friends. Stuff like that.
Do you have any goals that have yet to be achieved? Definitely. One is to continue to grow my IP firm. Another is to continue to grow as a person.
What is a little known fact about you?
I listen to the Grateful Dead occasionally, but mostly just the 80’s.
Family Night at the Reading Phillies By Rami Bishay, Esquire
was fortunate enough to attend the family night at the Reading Phillies game July 17, 2014. This was the second year in a row for us to have a family night at the Reading Phillies Game.
The turnout was great, as well as the weather. The buffet was wonderful as usual and the night ended with a spectacular fireworks show! Stephanie Gibbs & grandson
It remains to be seen where the family night will be held next year. If you have never attended or not attended in awhile, it is certainly something not to miss! It is rare that we have an opportunity to mingle with colleagues and their families therefore, an event like this is ideal to really get to know one another on a more personal level.
Kim Kohler & son
Whatever location is picked for next year, hopefully the weather will be as great as it was this year for this event. Hope to see all of you there next year! Lance Nelsonâ&#x20AC;&#x2122;s son
Stephanie Deviney & son
P.J. Galloâ&#x20AC;&#x2122;s son Judge Howard Riley & Jane Riley
Mary, Emily, & Peter Boulanger
Is a Token a Ticket? (And the Rule of Lenity) By Shannon K. McDonald, Esquire
n Commonwealth v. Cahill, 1152 EDA The first rule of statutory construction 2013, the Superior Court vacated the is to determine whether a term is ambigsentence of a man who was convicted uous. If it is not ambiguous then it must of the summary offense of unauthorized be given its ordinary and everyday usage. 1 sale of SEPTA tickets. It may not be a big Pa.C.S.A. §§1903, 1921, and 1922. Where issue in Chester County, but possibly you the term is free and clear of ambiguity, have had a client who thinks they can sell the Court may not disregard the ordinary off some SEPTA tokens leftover from their meaning simply to pursue the spirit of the time in the City of Brotherly Love—and it law. 1 Pa.C.S.A. §1921(b). turns out they can! The Superior Court ( J. Wecht) was in rare form in this decision, After comparing a number of common and it is well worth the twelve page read if dictionary definitions, the Superior Court you’re planning a statutory interpretation concluded: the meaning of ticket is clear challenge within your sufficiency of the and unambiguous, and is clearly different evidence claim (I don’t think Cahill was, from the word “token.” A ticket is a slip but I’ll admit, I didn’t read his pro se brief ). of paper which will allow you access to or participation in a show, event, or mode of Cahill was stopped by a SEPTA police travel. A token is a round metal or plastic officer in November 2012, who cited him piece used instead of money in a machine. for the unauthorized sale of SEPTA tokens The Superior Court went on to say that, and carrying an open alcoholic container the General Assembly clearly didn’t inin a public right of way, both summary tend tokens to be covered under offenses. After a summary trial, and a trial §6910(b), despite SEPTA de novo in Philadelphia Common Pleas, moving to a token method. Cahill was found guilty of both summary Here’s where it gets inviolations. Cahill then filed a pro se appeal, teresting though. The in which the Superior Court considered Court determined, only the sufficiency of the evidence claim. even if the General Assembly did want In this matter, the evidence presented tokens covered by was clear that Cahill was selling tokens, the word “ticket,” and that the statute, 18 P.C.S.A. §6910(b) the Court cannot clearly prohibits the sale or transfer of allow Cahill to be tickets. The question then becomes, if the convicted. The Court evidence is sufficient to convict the man, must construe the statthen a token must be a “ticket” for the ute narrowly under the purposes of the statute. rule of lenity.
The rule of lenity requires that where a word could conceivably be ambiguous, the Court must interpret the word in the sense most favorable to the accused. If there is doubt as to the language of a penal statute, the doubt must be resolved to the benefit of the defendant. Here, even if the term ticket is ambiguous, the ambiguity must be resolved in favor of Cahill. The resolution is to determine that token and ticket are different, and that the prosecution failed to present evidence that Cahill was selling tickets; they only presented evidence he was selling tokens. Thus the sentence must be vacated for insufficient evidence to convict the accused. Also, if you were curious about other recent applications of the Rule of Lenity (which is alive and well) see: Com v. McCoy, Com. v. Scolieri, Com. v. Berkowitz, Com. v. Huggins, and Com. v. Tate.
NOTICE TO BAR
n April, 2014, the Family Court Rules Committee submitted for publication amended rules of civil procedure encompassing Support, Divorce and Custody. Among the changes included a requirement that parties when filing an action in custody, whether an original filing or a modification, were to include a Custody Crimes Affidavit as required by 23 Pa.C.S.§5328, 5329. In order to promote uniformity, our local rules specified the form that was to be used. The effective date of the Chester County amended rules was June 4, 2014. Shortly thereafter, the State Family Court Rules Committee recommended the Crimes Affidavit include specific information regarding involvement with a Children & Youth Agency in Pennsylvania or any other jurisdiction. As the Chester County form did not contain this required information, thereby no longer conforming to statutory requirements, the decision was made to rescind C.C.R.P. 1915.15.A.(b)—the form of the Custody Crimes Affidavit. An Administrative Regulation was signed by President Judge MacElree on September 15, 2014 rescinding the local rule.
With profound sorrow the Chester County Bar Association acknowledges the passing of
Anthony P. Peszka Our deepest sympathy is extended to the members of the Peszka family.
All custody actions still require the Custody Crimes Affidavit be attached and a blank copy be forwarded to the Defendant/Respondent for completion. An amended form Custody Crimes Affidavit can be found at Pa.R.C.P. 1915.3-2.(c) that includes references to Children & Youth involvement. Copies of the amended state form are available at the Family Court offices.
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By J. Stoddard Hayes, Jr., Esquire
n October 9, 160 lawyers, 11 judges and 13 vendors, along with their spouses, descended on scenic Bedford Springs, Pennsylvania, for the Chester County Bar Association’s 2014 Fall Bench Bar. The town held its annual Harvest Festival in honor of the event.
Bedford Springs is a Victorian resort community, nestled in the scenic foothills of the Appalachian Mountains, about two hours west of Harrisburg. Those who drove the Turnpike were treated to beautiful fall weather, featuring a display of leaves at their peak. Despite dire predictions of rain, the weather held off for the entire weekend.
which was moved inside because of the threatened rain, and music provided by Matt Otis. Frivolity continued outside by the fire pit (reportedly located immediately adjacent to one judge’s balcony) until at least three in the morning (according to said judge).
Friday morning, the keynote speaker, Thursday afternoon, early arrivals could Lew Losoncy, a nationally recognized attend a Malpractice Seminar sponsored motivational speaker, charmed the normally by USI Affinity. In the past, similar semi- cynical lawyers with his simple outlook on life. Before long, he had the sleep-deprived and partially hung-over crowd chanting, “I am alive, and “What is, is” and learning that “should” is not a magic wand capable of changing the present. President Judge MacElree led the Judge’s Forum, which was attended by 11 of the 12 sitting judges, as well as Senior Judge Nagle. Judge MacElree reported that the Court is largely doing well. However, nars have been presented early because of state-wide efforts to “right size” on Saturday morning, which the courts, the judges are now required to did not always result in high keep time records, much to their general attendance. Attendees appre- disgruntlement. Cost-cutting has reached ciated the move to Thursday the MDJ level, resulting in courtroom afternoon, not to mention the sharing. However, the bright side of those cocktails and snacks provided. efforts is the preservation of the historic Courthouse, which is to be shared by Thursday evening, attendees Judges Bruno and Knapp. were treated to a Happy Hour, followed by a buffet dinner, Continued on page 29
featured accompaniment by Joe Claffy on the electric keyboard and Jack Craynock on the drums. Mr. Claffy brought down the house with his heart-rending tribute to Judge Shenkin, a parody of Frank Sinatra’s “My Way.” Those who could gathered again early on Saturday morning for sessions on Constitutional law, business law and family law, to be joined by those who couldn’t get up quite so early for the plenary session: “The Death of American Virtue: Clinton vs. Starr,” where Prof. Ken Gormley, Esq., from Duquesne University School of Law gave a 40th anniversary retrospective on President Nixon’s resignation and an inside look on the disputes that followed, leading up to President Ford’s pardoning him on the condition that he leave certain presidential papers in possession of the White House.
Continued from page 28 Each of the judges had comments for the attendees, from concerns about those whose letters to the Court misspell the judge’s name (it’s “Nagle” not “Nagel”), or mispronounce the judge’s name (it’s Tunn-L, not TUNN-el), to what lawyers, their clients and witnesses wear to Court (no pajamas, please), to what should be the appropriate sanction for failure to file a pre-trial motion and the status of e-filing (same as last year—don’t hold your breath).
Friday evening, the lawyers enjoyed an open bar reception, held in the historic part of the hotel given over to a beautifully tiled Edwardian-era swimming pool. Thereafter, dinner was provided in the Colonnade Ballroom, which was brought to close by the Reformed Stively Players, led by Al Massey and John Halsted, which
The conference closed, following Professor Gormley, and those who had to returned to Chester County, while those who had a little more time adjourned to Bedford Springs to enjoy the Harvest Festival, take in the flea markets, and enjoy a lovely fall day in the mountains.
The Judges Forum was followed by break-out sessions for those interested in Orphans’ Court, general civil litigation, criminal and family law. Thereafter, following a buffet lunch, lawyers went their separate ways for the afternoon, participating in hiking, Segway driving, cooking classes, or more relaxing pastimes, including massage and napping. Eight foursomes took to the links, where Andrew Eckert, Rick Weber, and Pete Krasta finished first, second and third, respectively in low net, and Amy Lynn took women’s honors. A. J. Ober, Tim Rayne, Rick Weber, and Bob Frame also won prizes for closest to the pin on holes number 2, 10, 14 and 17. New Matter
CCBA Members Take On the Ice Bucket Challenge
CCBA Members “Lawyers on the rocks”
Jim Tupitza “There was no ice in my bucket”
CCBA President, Lisa Comber Hall & Ben Franklin “Never confuse [a] motion with action” - Ben Franklin
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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
B.U.L.L. Session (Better Understanding of Lawyers’ Lives)
Annual Meeting & Memorial Service at Historic Courthouse
YLD Holiday Happy Hour – Date & Time TBD
Jan. 9, 2015
President’s Dinner at Aronimink Golf Club
Mar. 19, 2015
Spring Bench Bar Conference at The Desmond
Join Us for Our Annual Meeting on December 4th! Calling all CCBA members! We hope you will take time from your busy schedules to attend the annual meeting of YOUR bar association on Thursday, December 4th. This is a great opportunity for members young and old to come together to learn more about the administration and operation of our bar association; as well as hear reports and updates on our numerous programs, services and accomplishments. The meeting is followed by a reception where you can socialize and mingle with fellow attorneys and judges. We are thrilled to be holding our Annual Meeting in Courtroom One at the Historic Courthouse, which has been completely restored and is absolutely beautiful. We encourage all members to attend and look forward to seeing you there!
Thursday, December 4th
NEW LOCATION THIS YEAR:
Historic Courthouse – Courtroom One
(Must use entrance on Market Street) 4:00 pm 4:30 pm 5:00 pm 5:45-6:30 pm
Chester County Bar Foundation Annual Meeting Memorial Service Chester County Bar Assn. & YLD Annual Meeting Reception (Courtroom Two)
New Matters & Other Interesting Facts
Tapped To Serve On Supervisory Committee By Franklin Mint Federal Credit Union West Chester, PA – October 3, 2014
ranklin Mint Federal Credit Union (FMFCU) announced the appointment of Patrick M. McKenna to its Supervisory Committee. A shareholder and partner at West Chester law firm Gawthrop Greenwood, PC, McKenna practices in the areas of Land Use and Land Development, Municipal Government, Zoning, Real Estate, and Tax Assessment Appeals. He has been a member of the FMFCU Chester County Advisory Board since 2011.
union, maintain the effectiveness and efficiency of FMFCU operations, and oversee the performance of the internal audit function and independent registered public accounting firm. “The Committee also responds to member feedback, oversees finance, accounting and legal compliance controls, and evaluates risk management activities to ensure the long term viability and success of Franklin Mint Federal Credit Union,” says Michael B. Magnavita, Executive Vice President/Chief Financial Officer at FMFCU.
About Gawthrop Greenwood, PC
Founded in 1904, Gawthrop Greenwood, PC has offices in West The FMFCU Supervisory Committee consists of three vol- Chester, PA and Wilmington, DE. The firm’s 23 attorneys offer unteers appointed by the FMFCU Board who help ensure the the individual attention that characterizes a smaller practice with integrity of financial and operational information of the credit the broad expertise and capabilities of a larger firm in practice areas including business, litigation, real estate, tax, estate planning, family law, education, municipal law, and government relations. A complete listing of the firm’s practice areas and attorneys, as well With Allstate life insurance, as a variety of legal resources, can be found at www.gawthrop.com.
About Franklin Mint Federal Credit Union
FMFCU currently has over $800 million in assets and has been providing financial products and services to residents and organizations throughout the Delaware Valley and beyond since 1970. The Credit Union has over 78,000 members, 2,000 plus partnering organizations, ATM access at nearly 30,000 surcharge-free machines through the national CO-OP ATM Network, and 24/7 access to member accounts. For more information, visit www.fmfcu.org.
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RECEIVES LEGACY AWARD For Work Done Through Chester County Community Foundation West Chester, PA – October 8, 2014
acElree Harvey, Ltd. is pleased to announce that senior partner Louis N. Teti received the “Door Opener Award” from the Chester County Community Foundation (CCCF). The award is given to the CCCF member who “takes the initiative to bring legacy philanthropy options to the attention of their clients for their consideration.” Each year CCCF looks for outstanding Chester County citizens who have made a notable effort to improve the communities where they live, work and play. The Foundation honors these individuals with Legacy Awards in five categories of philanthropy: Door Opener, Youth Philanthropy, Thanks for Caring, Corporate Social Investment, and The Jordan Award. Each Legacy Award reflects a unique aspect of the Community Foundation’s mission, which is to increase legacy philanthropy throughout Chester County. Past MacElree Harvey recipients of the Door Opener Award include William J. Gallagher, John A. Featherman, III and Duke K. Schneider. Mr. Teti is an experienced attorney who represents individuals and businesses in a wide range of estate, business, charitable and tax planning matters. He speaks frequently on estate planning, tax planning, estate administration, and philanthropic planning. Mr. Teti has been named to the Pennsylvania Super Lawyers List every year since 2005. He is a past President of the Pennsylvania Bar Association and the Chester County Bar Association, a past chairman of the Disciplinary Board of the Supreme Court of Pennsylvania, and a past chair of the Boards of Trustees of the Foundation at Paoli Hospital and the Chester County Community Foundation. He currently serves on the Board of the Malvern Preparatory School and of the Foundation at Paoli Hospital, and is on the Advisory Board of Bishop Shanahan High School. A graduate of Dickinson College (1972), Mr. Teti received his law degrees from Temple University School of Law ( J.D. 1976, LL.M., Taxation, 1981). MacElree Harvey is a full service law firm located in West Chester and Kennett Square, PA and Centreville, DE. Providing initiative in the practice of law for more than a century, MacElree Harvey serves clients in over twenty-five areas of law. To learn more about the firm, please visit www.macelree.com.
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From The Bench
CIVILITY in Writing By Hon. Mark L. Tunnell
s a former practitioner of 34 years, I managed to make just about every mistake possible in advocacy. I feel I can write from experience about this subject. Consider the following as an aspirational reminder. Not long ago, the Supreme Court amended the Code of Civility to include for the first time principles concerning lawyers’ duties to other lawyers. No. 2 states:
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A lawyer should speak and write in a civil and respectful manner in all communications with the court, court personnel, and other lawyers. I propose that attorneys ought to frequently pause to reflect upon the tenor of what they are putting in their memos, briefs and other papers, to say nothing of their correspondence to each other. There will always be tension between one’s written efforts to meet the expectations of his or her clients and the judges on one hand, and efficient, dignified and just advocacy on the other. Yet do we not often lose track of the fact that we are writing to persuade the mind of the reader? Harsh attacks, personal invective and ad hominems rarely, if ever, persuade, and are no substitutes for a dispassionate discussion of the merits. They are a turn-off, and thus counterproductive of the goal. We should all strive, rather, to depersonalize the matter, and resist derogating the opponent or his or her counsel. To charge the other person’s points as bogus, deplorable, dishonest, galling, incoherent, idiotic, nonsensical, quixotic, specious and the like, demeans the other and does a disservice to the profession. I would go so far as to suggest that the frequent use of the word disingenuous is an unnecessary slap at counsel. It is proper to confront an opposing party’s contentions, but one can do it by using high-minded words, such as inaccurate, incorrect, undermined by, belied by or equivocal. Nor should we allow ourselves to mix inner thoughts about the motives of opponents with the merits of their arguments. Challenge only the latter. Ultimately, civility is an attitude, a way of thinking that demands that others, errant though they be, be treated with dignity.
HAPPY HOUR with Past P residents at Ryan’s Pub
By Shannon K. McDonald, Esquire
n October 2, the Young Lawyers Division invited the past presidents of the Chester County Bar Association for a happy hour, and for some impromptu mentoring. Of course, we couldn’t leave out the current president either, Lisa Hall! There was a good turnout of four past presidents willing to share their wisdom. It was informal mentoring at its finest, with topics from actual work, to discussing home life and pets. A.J. Ober, Chair of the YLD, who created the new format for the YLD meetings, was pleased with the turnout of young lawyers at the event. The members who arrived in the first half hour enjoyed a free drink for the happy hour. We were joined by some private practice, a new face or two, and even YLD Secretary Colleen Frens managed to pull away from her desk at the public defenders to relax with a beverage and snack. But the real surprise was when five members of the YLD from the District Attorney’s Office arrived. They were eager to meet past presidents and to enjoy some pizza from Ryan’s.
Trusted advice and personal attention from local professionals. To discuss your needs or a client matter, call Steve McGann at 484-359-3082, or Rick Weber at 484-359-3531.
The YLD meets the first Wednesday of the month— on even numbered months it is a happy hour meeting, and on odd numbered months, the meeting is a lunch meeting. This is done in an effort to encourage attendance and to accommodate the busy schedule we know young lawyers have to keep.
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The Blank Page
The Student Debt
By Mark Blank, Jr., Esquire
s it really a crisis, or is that simply the term that is employed by the media and politicians to describe it? Maybe it is a bit of both.
Anyway, let us examine it. As of the time of this writing, there is $1.1 Trillion in outstanding federal student loan debt. And if we add what is owed on private student loans, it is over $1.2 Trillion.
But read on. Approximately 20% of the debt is in default, and another 20% is in some sort of deferment status. Do the math. Forty percent of the outstanding debt is not being paid. The lapsed borrower runs the gamut from college dropouts to doctors, teachers, lawyers and other professionals who often took on heavy debt loans while earning their degrees, according to Natalia Abrams, Executive Director of Student Debt Crisis, a non-profit group which advocates for borrower-friendly loan-repayment options. Now, what sort of relief might there be for borrowers? There is the income-based repayment plan and extended deferments.
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However, with either of these, the debts do not go away or become reduced. And then there is loan forgiveness. The latter is extremely rare, and usually involves somebody who is disabled. For example, in a recent case that I had, a woman was obligated on a student loan for her daughter who dropped out. Mom was on social security disability. Sallie Mae agreed to a “contingent forgiveness,” to be reviewed in three years. If she is still disabled, then the debt will be forgiven and she will receive a 1099. Student debt is now quite common among parents and even grandparents. For instance, a man came to see me and wanted to know his options for a $220,000 student loan which he took out to pay for his son to go to Hofstra. What are the options? The answer was quite simple: none. For parents, the relief programs are, for the most part, unavailable. What is the Department of Education doing about this? It has recently stepped up its efforts to collect in the form of wage garnishments, which are permitted
regardless of state law. By the way, it can also garnish social security payments and intercept tax refunds. I see at least three major problems. First, it is very easy to obtain a student loan. Get it, and forget it. That it has to be paid back is soon forgotten. In other words, get the money and run. Secondly, student loans (unlike the olden days) don’t just cover tuition. They may include room, board and other living expenses. Third, there are hundreds of thousands of people who emerge from college with debt and no degree. In a cost-benefit calculation, they get only the cost. Now, can a student loan be discharged in bankruptcy? Section 523(a)(8)(B) of the Bankruptcy Code (this provision was enacted on September 1, 1977) states that a student loan debt is not dischargeable in bankruptcy unless the debtor can show an undue hardship. Congress did what it does best; that is, it did not define undue hardship. All but the First and the Eighth Circuits follow the test as set forth in Continued on page 37
Continued from page 36 Brunner vs. New York State Higher Education Services Corporation, 831 F.2d 395 (2d Cir. 1987). The Brunner test requires a showing that (1) a debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for the debtor and the debtor’s dependents if forced to repay the student loan; (2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loan; and (3) the debtor has made good faith efforts to repay the loans.
In the First Circuit, lower courts may apply either the Brunner or the “totality of circumstances” tests for undue hardship. In re Nash, 446 F.3d 188 (1st Cir.2006). Before you conclude whether or not student debt is a crisis or a cliche, let us consider lawyers.
Lawyers graduate from law school with average debts ranging from $75,000 to $185,000. As for the local law schools, the average is about $110,000. What could be conThe Eighth Circuit has endorsed a “to- sidered a real crisis here is that tality of circumstances” test for determining many new lawyers cannot find undue hardship. This test considers (1) the work. And if they do, the pay is debtor’s past, current and reasonably reliable often insufficient to meet the future financial resources; (2) the debtor’s monthly payment of the student and the debtor’s dependents’ reasonable and loan. Crisis or cliche? If it is necessary living expenses; and (3) any other the former, then it is as such relevant facts and circumstances applicable for the entire profession and to the bankruptcy case. In re Long, 322 F.3d the practice of law, not just the student debt. 549, 554-55 (8th Cir. 2003).
In conclusion, what about paying for education the old fashioned way? As for this writer, my son’s first choice for college was Columbia. My daughter’s first choice for college was Franklin & Marshall. They both got early admissions, they both thrived. And I will say that it was well worth our money. But their education did not result in any debt.
Save Our Environment
The PA Environmental Rights Amendment: Lycoming CCCP Weighs In
By John R. Embick, Esquire Chair, Environmental Law Section
arlier, I wrote about the Pa Supreme Court’s interesting decision in the case of Robinson Township v. Commonwealth, 83 A.2d 901 (Pa. 2013). The most intriguing part of this complicated decision was Chief Justice Castille’s plurality opinion, in which he broke new ground on the meaning and interpretation of Article 1, Section 27 of the Pa Constitution (also known as the Environmental Rights Amendment). In Gorsline, et al v. Board of Supervisors of Fairfield Township, Docket No. 14000130, (Lycoming County Court of Common Pleas, August, 2014), Judge Mark Lovecchio was called upon to review an appeal taken by neighbors from a conditional use approval for the construction of gas wells on property owned by Donald and Eleanor Shaheen.
The court first addressed a dispute about whether the proceeding should be considered under the provisions of the Local Agency Law, or the Municipalities Planning Code (“MPC”). Judge Lovecchio found that the proceeding clearly was a matter governed by the provisions of The property in question was located the MPC. This ruling was of particular within a zoning district labeled Residential importance because certain issues raised Agricultural (RA). Only one residence was by the Gorslines in the appeal were not located within 1000 feet of the proposed raised in the conditional use matter begas development site, but many homes were fore the Board of Supervisors below. The located within a 3000 foot radius of the site. court held that the MPC did not limit It has been reported that the Shaheens are the issues that could be raised on appeal. retired, and were counting on the royalties Judge Lovecchio went on to mention that that would be generated by the gas lease he would have allowed argument on some they had signed with the gas producer, of the constitutional issues anyway, since Inflection Energy, LLC (“Inflection”). they were significant in his view.
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The court then decided that the local zoning ordinance permitted the desired use in the RA district because the ordinance allowed the placement in the RA district of all uses which were neither specifically permitted nor denied in the zoning ordinance. The ordinance did not address natural gas operations, and the court found that natural gas operations were not included in the definition of surface mining. The Fairfield Township zoning ordinance permits approval of a conditional use, only if the proposed use is similar to and compatible with other uses permitted in the RA district. The court found that the township abused its discretion in finding Continued on page 39
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Continued from page 38 that Inflection satisfied this burden, because the decision was not supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. In addition, the Fairfield Township zoning ordinance permits approval of a conditional use, only if the proposed use is not in conflict with the general purposes of the ordinance. The Court found that the natural gas operations were in conflict with the general purposes of the ordinance, since it generally discourages industrial uses in the RA district, among other things. In his discussion, Judge Lovecchio was clearly concerned about the substantial impacts that the development and operation of a natural gas well would entail, at least during an initial period of 2 to 3 years. Finally, the Fairfield Township Zoning ordinance places a burden on the applicant
to demonstrate that the proposed use would not be detrimental to the public health, safety and welfare of the neighborhood where the use is to be located. The court found that despite the clear wording of the ordinance as to the applicant’s burden, that the case law places the burden upon the appellants (the Gorslines). After reviewing the evidence, the court found that the appellants presented substantial evidence that there is a high degree of probability that the proposed use will adversely affect the health, safety and welfare of the neighborhood.
say that the constitutional obligation must be respected by all levels of government. The court then vacated the conditional use approval. In this decision, the implications of Robinson only crept in at the end of the opinion, and you might argue that Judge Lovecchio’s decision squarely rests on the evidential record made in the tribunal below. However, environmental law practitioners are wondering if there will be more cases like Gorsline and what it means.
Citing Robinson with approval, the court noted that natural gas development inevitably does violence to the landscape, and that the township has a substantial and immediate interest in protecting the environmental and the quality of life in its jurisdiction. Judge Lovecchio went on to New Matter
Some Basics of
By Keith E. Boggess, Esquire
n New Matter’s last issue, I provided some tips on identifying potential Social Media evidence and on laying the groundwork for further action. Originally, this article was to continue that discussion on preserving such evidence, but it became apparent that the readers should be aware of some basic ideas before delving into preservation and discovery. To introduce those topics, consider the following 2012 news story.
in the image. Metadata is one of three things that every lawyer should know about electronic evidence. The other two are that electronic evidence can be any electronic information and that electronic evidence must be gathered in a way that preserves the chain of custody.
Know What ESI Is
(Or, I Dare You to Find Something Not ESI) Letters, diaries, column books, and receipts for transaction—those tangible items have been either replaced with an electronic version or have an electronic alternative. Today, most documents are stored electronically, even if printed, and we communicate through E-mail, texting, and Social Media. A monetary transaction can have an E-mail receipt or can be verified through an electronically generated statement. Bending under the weight of that reality, the Federal Rules of Civil Procedure in 2006 added the term Electronically Stored Information, known by the acronym ESI, to the rules. That term includes nearly all digital information of any kind. In 2012, the Pennsylvania Rules of Civil Procedure added similar language. Those new rules reflect an undeniable fact that ESI pervades a major portion of our lives and will continue to do so.
Readers may have heard of the McAfee Antivirus program. John McAfee was the founder of that product and a leading pioneer of the computer anti-virus industry. Some media professionals have portrayed him as being fearful, or even paranoid. An event that happened to him while he was living in Belize with an under-aged ex-prostitute (and researching how bacteria communicate with each other) may support that idea. One day, Mr. McAfee became a person of interest in the murder of his neighbor. He promptly went into hiding, claiming that the government was trying to terminate him. A magazine then posted on the Internet an interview with Mr. McAfee while he was on the run and included a photograph of Mr. McAfee taken with the reporter’s phone. Well, the phone’s GPS tracking feature was on and the GPS coordinates, which placed him in In practice, a lawyer must understand neighboring Guatemala, were embedded how broad the term ESI is and how that in the image. He was caught two days later. affects his or her duty to get the evidence Guatemala soon released him and deported and to avoid spoliation claims. The Rules him to the United States. Committee Commentary to Rule 34 of That story illustrates the power of what the Federal Rules of Civil Procedure (the is called metadata, secondary information rule that establishes the term ESI) provides hidden within the actual information. The guidance. ESI “is expansive and includes GPS coordinates were metadata embedded any type of information that is stored
electronically…The rule covers—either as documents or as electronically stored information—information ‘stored in any medium,’ to encompass future developments in computer technology.” That statement leads to this question: Is there any kind of electronic data that is not ESI? ESI is a wide net to be cast out into a wide ocean. If relevant digital information can be caught, then it is potential evidence. Because ESI is meant to encompass future developments in computer technology, a lawyer must stay alert to new devices, programs, and trends and not become complacent. Not only do the rules of the game change often, but the very game itself can disappear quickly. The best way for the busy lawyer to stay up to date is to monitor some quality blogs. The key word in the prior sentence is “quality.” In the never-ending marketing effort, some blogs contain posts that are nothing more than copying and pasting other people’s stuff in order to generate traffic. The quality site needs to provide solid information, and those sites should be bookmarked. The best ones have subscription options that allow updates to be sent over E-mail.
Know What Metadata Is
The second basic area of which every attorney should be aware was illustrated by Mr. McAfee’s introductory story. Metadata is commonly explained as data about data. Often hidden or hard to see, metadata gives information about such things as how the data was created, its purpose, the time and date of creation (or modification), who Continued on page 41
Figure 2: By getting the jpg image in its native format, Adobe Lightroom 5 is able to provide not only the GPS coordinates but also to display the location on a map. This picture was taken in Williamsburg, Virginia, on July 21, 2014. Figure 1: Here is an excellent example of the power of metadata. This picture was by the author’s Nokia Lumia 1020, which records GPS location data by default if location services are turned on.
Continued from page 40 created the data, and where it was created. One could think of metadata as the card information in a library’s card catalog—it gives essential information for organizing to allow computers and computer users to manage the actual data. As John McAfee’s adventure illustrates, metadata’s use as electronic evidence is powerful. In Mr. McAfee’s case, pictures produced by modern digital cameras or smart phones can provide crucial details Figure 3: You can even zoom in to find detailed location. This is the statue at Busch Gardens immediately before you go across the bridge from the Italy section to the Germany section. about the picture. Modern digital cameras have the ability to embed metadata in the image that records when the picture was the East Coast. That particular phone the accuracy of information. When the taken and where it was taken through (the Nokia Lumia 1050), along with many map is zoomed in, it shows the exact spot GPS coordinates. Some devices have the others, records GPS coordinates of the where that picture was taken—in Busch features enabled by default, and the user picture by default if the location services Gardens’s Italy section at the bridge going may not be aware of that fact. are on. Figure 2 shows the picture after across the river. being imported into the popular photoTo further illustrate metadata’s potential, graph computer program called Adobe Such valuable information can be this article includes three pictures that Lightroom 5. Lightroom has the ability not stripped when the data is converted to show how GPS coordinates are embedded only to read metadata but to also place the another form, however. The wise lawyer will in pictures. Figure 1 is a picture of a statute location on a map of where the picture was request electronic information in its native taken by the author with his smartphone created. The location, as the reader can see, format so that the metadata is preserved. at a well-known tourist destination on is Williamsburg, Virginia. Figure 3 shows Continued on page 42 New Matter
CCBA Feature Continued from page 41
Know How to Show Chain of Custody Through Hash Values
Finally, readers should be familiar with the concept of chain of custody as it relates to Rule 901 of the Pennsylvania Rules of Evidence concerning authentication. Basically, the lawyer seeking evidence admission must show the digital evidence has not been altered, substituted, or changed since the time of collection. Of course, one does not need to be able to do it his or herself—the attorney needs to ensure that staff or hired experts do not overlook that requirement. Chain of custody for electronic evidence mainly is shown through unique identifiers often referred to as hash values (also called a checksum value) generated by computer algorithms. The two main algorithms today are the MD5 message-digest algorithm and the SHA-2 algorithm. MD5 was created in 1991. It basically works when a program generates a 128-bit hash value that is manifested as an alpha numeric string of 32 characters. The hash acts as a fingerprint, a unique identifier, for that data. For example, when a Microsoft Word 2010 document that has the phrase “This is digital evidence.” is applied to a utility that generates hash values, that utility will look at that file
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and its content in its binary form—the 1’s and 0’s—and will use a mathematical formula to generate a hash that represents the data and the file. In this case, the MD5 hash value is 3631ED674685052F75D99A82D70DA01. The user then transmits the hash value to the receiver. When the receiver applies the algorithm to the data and resulting hash value is different, then something is wrong—a transmission error across a network or intentional manipulation has occurred. Like clockwork, some smart people discovered a way to beat the MD5 algorithm. Today, the MD5 algorithm is not a viable option when security and data integrity are concerned. Instead, the SHA-2 set of algorithms (with the two most readily available being SHA 256 and SHA 512) is considered more secure, although the earlier SHA-1 is still used because, while vulnerable, it is still difficult to overcome. SHA stands for secured hash algorithm. The National Security Agency designed it out of security concerns with the then-existing algorithms, and it was published in 2001 In addition to establishing a chain of custody, those algorithms are used in place of Bates stamping to generate a unique identifier for each piece of discovery received. A lawyer should look for hash values and be prepared to give them when ESI is involved.
The above basics topics are just a few turns in the never-ending maze of e-discovery, but they are a good starting place when dealing with Social Media evidence. For one, Social Media can be admissible evidence no matter what form it is in. Also, Social Media can provide more information than meets the eye—ask John McAfee. Most blogs and Social Media sites now strip metadata information out of uploaded content, but the actual posting of such data, such as images, may give a lawyer enough reason to seek the data in native format. That is where preserving the potential evidence is critical—the subject of next issue’s Tech Tips.
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