Spring 2013 Sidebar Magazine

Montgomery Bar Association I Montgomery County PA

MAGAZINE

OF THE PEOPLE,

BY THE PEOPLE, FOR THE PEOPLE: A Unique Countywide Arts Initiative & Courthouse Improvement Project

Attorney General

KATHLEEN KANE

Joins our bar!

THE CENTER FOR MEDIATION & ARBITRATION MBA’s new dispute resolution center launches to rave reviews

A County P tgomery n o M I n tio r Associa mery Ba Montgo

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INE MAGAZ

PLE, OF THE PEOOPLE,

BY THE PE EOPLE: FOR THE P untywide Arts Co A Unique Courthouse Initiative & nt Project e Improvem

eneral Attorney G

E N A K N E E L H KAT our bar!

Joins

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contents

spring 2013

Montgomery Bar Association / Montgomery County PA

BYOD

Scary Liability for Employers

MAGAZINE

SIDEBAR COMMITTEE MEMBERS

10

Co-Chairs Robert R. Watson, Jr., Esq. Gary J. Friedlander, Esq.

Regular columnists: Joel B. Bernbaum, Esq. Richard E. Cohen, Esq. Lindsay Hanifan, Esq. David R. Jacquette, Esq. Dennis R. Meakim, Esq. Elaine Moyer, Esq. William J. Newman, Esq. Douglas I. Zeiders, Esq.

MBA Staff George Cardenas IT Manager

20

Jack Costello

Of the People, by the People, for the People

Marketing Manager Jim Mathias

7

Center for Mediation Arbitration

IN EVERY ISSUE...

FEATURES

President’s Message............................4

New Lawyers Professional Liability Program................................................9 Commissioner Bruce L. Castor, Jr. Welcomed..........................................14

Bits & Bytes..........................................5 Lawyers Lending a Hand.....................6 Young Lawyers.....................................8 Wiretaps.............................................23 Bar Foundation...................................24 Movie Review....................................25 Upcoming Events...............................31 Restaurant Review.............................35

24

Alternatives to Incarceration............15 American Taxpayer Relief Act..........16 Kathleen Kane Joins our Bar.............17 Welcome New Board Members........18 Real Estate Committee Task Force....26 MBA Ski Trip......................................27

Director of Marketing, Communications and Public Affairs Nancy R. Paul Executive Director The Sidebar Committee invites articles and news information of interest to the membership to be sent to: MBA, c/o Sidebar Committee, P.O. Box 268, Norristown, PA 19404-0268 or email: sidebar@montgomerybar.org The Sidebar Committee reserves the right to edit any material submitted and/or to omit the same from publication. Most articles are written by members for members.

Montgomery Bar Association 2013 Officers Serving the Profession and the Community since 1885

Paul C. Troy, Esq., President

Annual Business Luncheon...............28

Michael F. Rogers, Esq., President-Elect

Class Action Cy Pres..........................29

Bruce Pancio, Esq., Vice President

Current Financial Observations.........30

Carol R. Mirabile, Esq., Treasurer

Helping Our Bar Foundation .............32 Recovering Unemployment Compensation Benefits......................33

Eric B. Smith, Esq., Secretary

President’s Message

It’s Time to Start Enjoying the Practice of Law

By PAUL C. TROY, ESQ.

I

know a lot of lawyers. The

majority of my practice is defend- ing lawyers in professional liability suits. I also have met thousands of lawyers through local and State Bar activities. I have met lawyers who love their jobs. I have met lawyers who really don’t like their jobs.

Lawyers have asked me for years why I devote time and effort to Bar Association activities.

I always tell them that I do so because it makes it more fun to practice law.

I often get a quizzical look as if “fun” and “the practice of law” should never be used in the same sentence. I am writing to suggest to those who feel this way that they might need to consider a different approach.

Take litigation for an example.

Litigation is necessarily competition. In competition, opponents can sometimes treat each other poorly. We have all dealt with angry, miserable lawyers who needlessly spend their client’s money sending letters and emails accusing the recipient of various crimes against humanity. These letters usually threaten some sort of draconian punishment that was thought to have been banned

in the Middle Ages. The recipient can always be sure of one thing. He or she is not the only one receiving those letters. Those letters are the modus operandi of the author. He or she sends them daily to all of their opponents.

Common phrases in such letters include “I am writing to confirm our conversation...” and “in all my years of practicing law...” The verb “shocked” appears at least once in each of these letters. Sometimes the author takes the extra step of copying the Judge on the letter.

There may be no hope for the authors of such letters. There is hope for the recipients. Get involved in the Montgomery Bar Association. We have 2,100 members. Every one of them will treat you a lot better than the authors of those letters. Some of my best friends in the practice of law are attorneys who have been my opponents. I also know them through Bar Association activities. It is a joy to have cases against them. Extensions of time are given routinely. Courtesies are exchanged regularly. There is no need to write a letter to confirm a conversation.

There is absolutely zealous advocacy, and both sides do the best for the clients, but there is also a good quality of life for the lawyers. There is also less money spent by the clients who aren’t having their resources wasted on needless bickering by the attorneys, and unnecessary court arguments.

Lawyers who see each other at Bar Association activities or elsewhere outside of the courtroom simply don’t engage in poor behavior with each other. Spending your career tied to your desk is no way to have fun practicing law. Get out to a few of the great events we have this year. While there are many worthwhile events happening at the Bar Association each month, here are some of my favorites that I hope you can attend: On Friday, April 19th, we will be having our annual dinner dance at the Green Valley Country Club in Lafayette Hill, PA. You have already received

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an invitation. If you lost the invitation in the stack of angry letters from the lawyer I mentioned earlier, please just contact Nancy Hagner at the MBA (Nancyhagner@montomerybar.org).

There are discounted prices for young lawyers and government lawyers. And you don’t even have to dance.

On June 7th, we will hold the Legal Aid Golf Classic at Bellewood Country Club. You don’t need to be a good golfer...I shoot about 120, and am almost certain it is due to faulty equipment.

On the afternoon and evening of July 18th, we have a Clam Bake at Mermaid Lake in Blue Bell. There will be golf, bocce, softball, tennis, and of course terrific food.

Please join us from September 20th to 22nd for our Annual Bench Bar Conference at the refurbished Lowes Hotel in Annapolis, Maryland.

While we have several events planned for the weekend that you will hear about in the future, the best part of Annapolis is just walking around town with your friends. Have no fear. The author of that angry letter won’t be there. We have a zero tolerance policy for people like that at these events.

Finally, mark your calendar for the Annual Membership Dinner on November 1st. That is our other black tie optional event, and is only for MBA Members. This is always a night of laughter and entertaining stories. Some of the stories are even true.

I want every lawyer to have the chance to experience all the wonderful little things we have in the MBA. Over the years at our Association I have appreciated all the conversations at these events when an older lawyer has given me valuable advice about the practice of law, or life, or both. Rarely will you have those conversations sitting at your desk answering interrogatories, or writing a brief.

Retiring athletes say what they will miss most is the comradery. That is what retiring lawyers say they miss most also. Don’t miss out on it now.

BITS & BYTES

Spring Cleaning Your Technology This edition of Bits & Bytes marks over sixteen years of sharing technology with members of the Montgomery Bar Association. It also marks the end of winter and the onset of spring - a good time to extend your spring cleaning to your technology.

By Joel B. Bernbaum, Esq.

F

irst, review the contacts contained in your digital address book. This could be your Out- look contacts folder, email folder or your business (Exchange server) address book on your work computer.

Hopefully, they are synched and you don’t have to review multiple databases. Delete those contacts that are no longer necessary, relevant or useful. You probably will be able to prune 20% of the contacts.

Next, attack your email. Most of us are so afraid of deleting potentially important email that we are retaining enough data to paper the Empire State Building. Seriously, if you have more than 10 emails in your inbox, you are doing something wrong. Organize your mail program with folders and subfolders. For example, I have a “Bar Association” folder in my mail program.

My subfolders are MBA, PBA, PBI, and AAML. I act on a received email when received and if I need or want to retain the original email, I move it the appropriate folder or subfolder and out of my inbox. I have a work folder (with subfolders), personal folder, etc.

The important thing to remember is to act on email within one day and either delete it or move it to an appropriate folder for reference. However, this is not forever. Spring cleaning means you go through your retained emails and delete, delete, delete. If you absolutely need to retain the message, move it to a folder marked “archive” or “closed” but you still should review them annually.

If you are at work, you need to have client related emails saved to your

firm’s server, by client. For example, a message from Mr. Smith should be saved to a “Smith” folder on your firm’s computer rather than your individual computer’s hard drive (unless your firm is not networked). The ability to access your email from your desktop greatly enhances your productivity. You can respond, set a reminder or forward the email as needed without further dictation or having to go and retrieve your file, find the message and then take an appropriate form of action (much more wasted time).

Move on to your voicemail and prune away, delete those old-out-ofdate messages. I can’t tell you how many problems can occur when you leave messages in your voicemail and the caller gets a “mailbox full” message.

Clean up your internet browser

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bookmarks. A lot of them probably don’t work anymore because the website doesn’t exist or has changed its settings.

Prune away!

The same principals apply to your tablets and smart phones. Delete voice mails, emails and most importantly apps. They take up valuable space and can slow down or cause your device to crash. I don’t know of a contest that awards prizes for who has the most apps, although many people brag about the 100 or so that they’re keeping on their phone.

You don’t really use more than 20 on a regular basis. They take up space and memory on your digital device.

My tip of the month is to consider banning clients from texting you as a means of communication. I allow and encourage email and cell phone communication with my clients. A Family Law practice lends itself to these types of communication and I can control and protect confidentiality as well as any intrusion on my nonbusiness time. Texting is different.

Most often, there is no way to receive a text without access to a cell phone. Most lawyers don’t have access from the desktop computer. I don’t always have my cell phone with me and I usually have it on silent to avoid unwanted intrusion at work. Also, the carrier only retains text message for 30 days, and they cannot be easily authenticated. I don’t want to be responsible for time sensitive messages under these circumstances. Think about it and let me know your policy, if any.

Finally, please send me your comments and suggestions for topics. I want this column to be user friendly and instructive to your needs. Send them along to jbernbaum@timoneyknox.com and I will be happy to respond.

lawyers lending a hand

Bell-Ringing & Powerball

T

he law firm of Rubin, Glickman, Steinberg, and Gifford, PC, Lansdale, Pennsylvania, continues its sponsorship of Salvation Army Kettles at the Montgomery Mall in North Wales, PA. Last year marks the 7th year the firm and its employees have been providing this support to the Salvation Army. On Wednesday evenings from November 28th through December 19th the firm’s employees and their families rang the bells for the Salvation Army through its “Bells Ringing Across America” celebration to raise funds for the needy in our area. Rubin, Glickman, Steinberg and Gifford, P.C.

and its employees have found this to be a very heartwarming project and look forward to continuing it again next year. _______________________

$104 in winnings from the Pennsylvania Lottery’s Powerball®

game got the ball rolling on a holiday donation to charity given each year by

the lawyers and staff at Timoney Knox LLP in Fort Washington.

Thirty-eight lawyers and staff each contributed $2 to purchase a Powerball® ticket in late November, and that $76 yielded $104 in winnings. The group decided that, rather than host a pizza party or some other event for the firm, the funds should go to Timoney Knox’s annual holiday fund collection for an area charity, according to Criss Tull, director of administration.

With the lottery winnings, plus personal donations and a donation from the firm, Timoney Knox presented $700 to the Mattie N. Dixon Community Cupboard in Ambler, a nonprofit organization that serves individuals and families in the Ambler area whose incomes fall below the Federal Government Poverty Guidelines.

Technology Solutions: Helping you meet the technology needs of your partners, associates, staff and clients.

Every day, law firms and legal professionals rely on business technology to run their timesheet and billing software, communicate with clients through e-mail and fax, store and protect electronic files and sensitive data, and print hardcopy documents.

Stratix Systems has helped several Montgomery County Bar Association members address their technology needs with strategic IT and Managed Services, Document Management Solutions, and Printing and Imaging Systems.

Learn more. For more information, call 610.374.1936 or visit Stratix Systems online at www.stratixsystems.com.

No one knows technology solutions like Stratix.

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The Center for Mediation & Arbitration MBA’s new dispute resolution center launches to rave reviews

A

s any judge, attorney, or courthouse employee in Montgomery County can tell you, the county courts are bursting at the seams. So much so, that a court already running at full capacity can sometimes be overwhelmed by the sheer volume of cases. Thanks to the recent efforts of the Montgomery County Court of Common Pleas, the backlog of cases waiting to be tried has been reduced by 45%.1 The Montgomery Bar Association’s Alternate Dispute Resolution (ADR) Committee hopes to join the bench in its effort to further alleviate the court’s backlog.

The committee recently unveiled the brand new Center for Mediation and Arbitration (CMA), which seeks to resolve disputes either before or after they escalate into a filing in civil court. The CMA will also mediate and arbitrate cases in suit. The MBA’s ADR program, which began in 2002 as the Davenport Dispute Resolution

Center, has helped numerous parties avoid costly litigation and reach amicable settlements. In an effort to increase awareness of the ADR program, the committee decided to rebrand, revamp, and relaunch this past winter.

The CMA is a low-cost service for the resolution of disputed matters that have been or could be filed in civil court or that the parties otherwise wish to resolve. The goal of the program is to provide an opportunity for an expeditious resolution of disputes outside of the courts. Services are provided through an expert panel of ADR specialists, all of whom have been carefully selected by the ADR Committee for their extensive experience in mediation and arbitration of civil matters. The CMA is available to lawyers, insurance companies, and any members of the public who have a civil dispute or a pretrial case pending in Pennsylvania.

The new center is already receiving

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rave reviews. An initial two day mediation session with a major nationwide insurance company garnered the praise of all parties involved, as well as Court of Common Pleas Judge Thomas M. Del Ricci. Building on the success of this initial session, the center has several other mediations scheduled with major insurance companies in the near future. Judge Del Ricci is especially looking forward to seeing old cases disappear from the court’s back log.

Anyone interested in learning more about the Center for Mediation and Arbitration can visit www.montgomerbar.org/adr/home.htm or call 610-279-9660, ext. 208.

1 Elliot-Engels, Amaris. “Montco Reduces Civil Trial-Ready Caseload by 45 Percent,” The Legal Intelligencer. Feb. 6, 2013.

young lawyers

Teams Compete in the Montgomery County Mock Trial Competition

Each year, the MBA Young Lawyers Section organizes the District and Regional High School Mock Trial Competition in Montgomery County.

By Sarah N. Ponzio, Esq., MBA YOUNG LAWYERS SECTION CHAIR

P

ennsylvania’s mock trial program is one of the largest in the nation. This year, 333 teams from 276 high schools statewide will compete in Pennsylvania’s 30th Annual Mock Trial Competition.

The first round of competition began on January 29, 2013 with 30 high school teams competing for the Regional Title. During the competition, eight-member student teams are given the opportunity to present their case in the courtrooms of the Montgomery County Courthouse, and make arguments before Common Pleas Judges, Magisterial District Judges and Discovery Masters of Montgomery County throughout each round

of competition. The students, who play the roles of lawyers, witnesses, plaintiffs and defendants, are assisted by teacher coaches and lawyer advisors in preparing for competition.

Lawyers, law office staff and community leaders serve as jurors and provide helpful feedback for each team throughout the competition.

The juries determine the winners based on the teams’ abilities to prepare their cases, present arguments and follow court rules. At the conclusion of each trial, the participating teams exchanged awards for the best advocate and best witness.

In the end, Mount Saint Joseph’s Academy (Team 1) defeated Harriton High School in the final round of competition on February 27, 2013.

President Judge William J. Furber presided over this trial, where Mount Saint Joseph’s Academy represented the defense and Harriton served as the prosecution. The jury was composed of some of Montgomery County’s most prestigious members, including Kier Bradford-Grey, Chief Public Defender; The Honorable Carolyn SIDEBAR

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Tornetta Carluccio; Marcel L. Groen, Chair of the Montgomery County Democratic Committee; Mark Levy, Prothonotary; Kevin R. Steele, First Assistant District Attorney; Past President of the Montgomery Bar Association Steven H. Lupin and President-Elect Michael F. Rogers; and Past Chairs of the Young Lawyers Section, Justin A. Bayer and Seth D. Wilson.

Mount Saint Joseph’s Academy (Team 1) advanced to the Pennsylvania Bar Association Statewide Mock Trial Championships, which began on March 22, 2013. The winning team of the state championship will represent Pennsylvania in the national mock trial finals to be held May 9 – 11, 2013 in Indianapolis.

Over 100 Montgomery County judges, teachers and lawyers volunteered their time to prepare teams and to judge the 2013 District and Regional High School Mock Trial Competition. The Young Lawyers Section would like to thank all of the volunteers that helped make this year’s program a success!

Recent Young Lawyers Section Events: March 22, 2013

Annual March Madness Event P.J. Whelihans, Blue Bell, PA April 5, 2013

Fundamental Formation and Governance Issues Affecting Your Small Business Clients (1.0 substantive CLE credit) Presented by: Andrew D. Santana, Esq., Fox Rothschild Montgomery Bar Association April 13, 2013

Wills for Heroes Event (Montgomery County Sheriff’s Office) Montgomery Bar Association Stay tuned to BarNews and montgomerybar.org for upcoming Young Lawyers Section events!

New Montgomery Bar Association

Lawyers Professional Liability Program Features Many Improvements

T

he Montgomery Bar Association and our endorsed broker and partner USI Affinity are proud to introduce a new and much improved Lawyers’ Professional Liability Insurance program in 2013. The program was chosen after a thorough review of the Bar Association program last year showed that improvements were needed to ensure that members are getting the best possible products and services. At the end of that process, we decided to partner with CNA on the new professional liability insurance program. CNA is an A Rated national leader in Lawyers’ Professional Liability insurance, providing coverage to more than 44,000 law firms in the United States. With more than 50 years of experience, they deliver world class underwriting, dedicated claims and state-of-the-art risk management tools and resources.

We feel this new Lawyers’ Professional Liability program is the best combination of coverage, services and value for MBA members. In addition to expanded risk management resources and credits for Bar Association members, the new LPL offering features comprehensive coverage and policy features tailored to meet the unique requirements of law firms in Pennsylvania, from solo attorneys to large firms.

The new program features Limits of Liability up to $10 million for qualifying insureds, with continuous coverage and full prior acts available.

It also includes improvements over the previous program offering, including:

True Consent to Settle: The named Insured’s written consent is required to settle a claim.

Cancellation: Cannot be cancelled except for non-payment of premium.

disclosure of non-public personal information.

Public Relations Event coverage: up to $25,000 per event and $50,000 for expenses in response to specified public relations events.

Regulatory Inquiry coverage: up to $25,000 for attorney’s fees.

Supplemental claim expense benefit: in the event the total limit of liability is exhausted and any unresolved claims remain, the company agrees to reimburse the Insured up to 10% of the limit of liability, up to a maximum of $100,000, for claim expenses incurred handling the unresolved claims.

Reduced deductible for early claim resolution: deductible reduced by 50% (up to maximum of $12,500).

Supplementary payments for disciplinary proceedings: up to $50,000 per proceeding and up to $100,000 total.

Supplementary payments for loss of earnings: up to $500 per day and up to $50,000 total per insured.

We are confident that you will find the new MBA-endorsed professional liability offering to be a tremendous member benefit and a great value. If you are not currently insured through the Bar Association program, we encourage you to get a quote when your policy expiration date approaches.

Discrimination complaint coverage: up to $25,000 per policy period for attorney’s fees.

Privacy Event coverage: up to $10,000 per event and $20,000 total for expenses related to unauthorized

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If you have any questions, you can talk to the insurance experts at USI Affinity. Call them toll-free at 855-USI-0100 PIN 761.

BYOD Policies...Scary Liabilities For the Uninformed Employer

By Robert W. Small, Esq.

T

he phone rings. It is 10:30

p.m. on a Friday. Calls

at this hour rarely bring

good news; and this one is no exception. Gloria, a newly hired agent in the Benefits Department of your insurance brokerage and financial services company, informs you that her personal laptop computer was stolen from her car. At first you wonder why Gloria is sharing this unfortunate news with you; but she quickly reminds you that under the company’s newly adopted “Bring Your Own Device” (BYOD) Program, Gloria was using her personal laptop for company business. Residing on her now missing, computer are the full names, addresses, social security numbers, account numbers, and account balances of plan participants for 15 client benefit plans for which you act as plan administrator and for several other plans to which your clients serve that role. That same information and health histories for the client health plans that your company administers are also on the laptop. Gloria informs you that the same information for all 75 of your own company’s employees resides on her computer. All told, personal information of more than 2500 individuals, living in all fifty states, potentially has been breached.

The news gets worse when you speak with your lawyer. You learn that

because some information is health information, you will have to notify those individuals whose information has been compromised under the Federal Health Insurance Portability and Accountability Act. (HIPAA) and the Health Information Technology for Economic and Clinical Health Act (HITECH), this will require your lawyer to review regulations issued by the Department of Health and Human Services and the Federal Trade Commission to determine who must be notified and what information must be given.

As you are considered a financial institution, you will have reporting responsibilities under the Financial Services Modernization Act of 1999 (aka GrammLeach-Bliley Act). This will require review of regulations issued by the Office of the Comptroller of the Currency, the Federal Reserve Board and the Federal Deposit Insurance Corporation as well as the Office of Thrift Supervision to determine what regulations might apply to that aspect of your business.

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Furthermore, your lawyer tells you that if any of the employees work for your affiliated radio station he will also have to spend time visiting the Federal Communications Act 1934 and Regulations issued under that Act by the Federal Communications Commission which relate to data breach notification.

But then the really bad news comes. At least 46 states have legislation dealing with the breach of personal information. Although he is familiar with the laws of your state, he and a team of associates will have to “blue sky” the other 45 state laws.

Your lawyer tells you that “personal information” subject to breach notification statutes include social security numbers, drivers licenses numbers, account numbers, credit card or debit card numbers, along with security and or access codes or passwords that would permit access to an individual account, medical information, health insurance information, date of birth, mother’s maiden name, biometric data, DNA data, passport number, taxpayer identification numbers, and account numbers even disassociated from passwords or PIN numbers.

Anticipating a large legal fee and notification costs, you ask if notification is required. He responds that many states have risk of harm thresh-

olds which require notification only if the breach of personal information poses, or is likely to pose, a significant risk of harm to the affected individuals.

In response to his questions you inform your lawyer that, while a password is required to open the files on the stolen laptop, the data is not encrypted. With this information your lawyer tells you that this probably rises to the level of a significant risk of harm to the individuals whose personal information is on the computer triggering your notification obligations.

You ask what you have to tell your employees and what your clients will have to tell their employees as you are certain your clients will be looking to you for guidance as to their obligations.

Your lawyer tells you that the information you must provide depends on each state statute. You ask if the company could simply provide all of the information required by the most

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comprehensive statute which would save time with the blue sky exercise.

Your lawyer responds that what some states require you to put in employee notifications, other states prohibit.

Therefore, there can be no “one size fits all” notification letter.

Furthermore, it is not as simple as notifying plan participants or your own employees. Some states require notification to state officials such as the State Attorney General. Some states permit you to delay notification if the law enforcement agency investigating the breach requests that of you so as not to impede its investigation. Additionally, at least one state requires that you notify them before notifying plan participants or employees and have your notification letter approved.

Your lawyer will have 4 associates begin the blue sky process immediately.

By the end of the day he lets you know that the good news is only 11 states’ statutes create a private right of action for individuals to sue you for

Continued on page 12

BYOD Policies...Scary Liabilities For the Uninformed Employer

damages they sustain as a result of the data breach. However, the bad news is that your company and your clients have hundreds of employees who reside in those 11 jurisdictions.

Seeing dollar signs fly by, you ask what the risk would be of not notifying anybody; in the hope the information is never wrongly used. You learn that several state statutes impose fines ranging from $10,000.00 to $150,000.00 per breach if required notification is not made. Other jurisdictions impose civil penalties or fines up to a $500,000.00. Not notifying all those entitled to notification simply is not an option.

“I thought all the laptop computers you gave to your employees had encryption, GPS location and remote destruction software,” your lawyer says.

You respond that, in an effort to save hardware costs and address concerns of a new generation of “techies” who want to do all their computing on a single device, your company recently adopted a BYOD policy that allows employees to use a single device of their own choosing for both personal and company business. You did not require employees using personal devices to download those protective software programs. Your lawyer asks what steps you took to protect the company’s own trade secrets and confidential information on employee devices. You never thought about that and have no protection either from whoever stole the computer or even from your own employees’ wrongful use of that information.

Your lawyer advises that, because there is health information on the laptop subject to HIPAA and HITECH, you are subject to an enforcement action by Health and Human Services. He also advises that under the Interagency Guidance Publication issued by the Comptroller of Currency under Gramm-Leach-Bliley your company was required to have in place a risk-based response program to address incidents of unauthorized

access to private information because your business qualifies as a financial institution under the Financial Services Modernization Act of 1999.

You belatedly realize that, before adopting a BYOD program, you should have completed a comprehensive risk assessment. Such an assessment might have revealed that employees already were using their own devices for work related information and likely would have determined whether a BYOD program was technically or financially feasible and appropriate for your company. Such an assessment also would have enabled you to select the best technological means for

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implementation of a comprehensive security program and to develop specific policies and procedures governing BYOD administration and management.

Your lawyer recommends that, after this crisis is over, the company develop a comprehensive BYOD risk assessment procedure and urges you to contact your Errors and Omissions carrier to determine whether you have coverage in the event your clients, their employees or your own employees bring damage lawsuits.

Although fictional, the foregoing arises out of actual events.

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MBA / FEATURE

Business, Banking & Corporate Counsel Committee Welcomes Commissioner Bruce L. Castor, Jr

By David A. Feldheim, Esq., MBA Business Banking & Corporate Counsel Committee Chair

T

he Business, Banking and Corporate Counsel Committee hosted Commissioner Bruce L. Castor, Jr. over lunch at the Bar on January 24, 2013. It was the inaugural 2013 monthly meeting of the Committee, which usually includes a lawyer or non-lawyer from the business community who is invited to share his/her business experiences. Mr. Castor was an excellent guest to help the Committee kick off the new year, sharing his experiences with the challenges of running the County government in a way that meets the needs of its citizens in a fiscally responsible manner.

Mr. Castor was elected Commissioner of Montgomery County, Pennsylvania in November 2007, and re-elected in November 2011. Prior to his election as Commissioner, he served in the office of the District Attorney of Montgomery County for twenty three years, starting in 1985 as a Legal Intern in the Sex Crimes Unit; continuing from 1986 until 1991 as an Assistant District Attorney in the Major Crimes

and Sex Crimes Unit (Serving as Captain of the Major Crimes Unit 1988-1991); and servin gas Deputy District Attorney (Chief of Trials, Captain Grand Jury Unit) from 1991 until 1993 when he became First Assistant District Attorney. Mr. Castor was elected District Attorney of Montgomery County, Pennsylvania, in November, 1999, and re-elected as District Attorney in November, 2003. Mr. Castor has been a Shareholder and Director of Elliott, Greenleaf & Siedzikowski, P.C. since January, 2008, where he focuses his practice on general litigation, trial strategy and tactics, and conducting independent internal investigations for major corporations.

Attendees at the luncheon were treated to Mr. Castor’s humorous and fact filled accounts of the County’s business affairs. Mr. Castor regaled the audience with tales of his personal experience with County, State and Federal officials, and then he turned serious in discussing the hard choices faced by the Commissioners in preparing the 2013 County Budget without raising taxes. When Mr. Castor was asked how he divides his time between his official County duties and his law firm responsibilities, he reminded the SIDEBAR

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attendees that being a politician also placed great demands on his time.

However, Mr. Castor emphasized that he has voluntarily undertaken all these responsibilities with pride and pleasure.

Mr. Castor’s governmental service has included many prominent roles and has earned him numerous awards, including The Hon. Louis D Stefan Law Enforcement Award of the Montgomery Bar Foundation; President of the Pennsylvania District Attorney Association; Special Deputy Attorney General 1987-2007; Graduate of the FBI Academy (National Law Institute), Quantico, VA. 1993; Pennsylvania Police Hall of Fame inductee 2007; Top 100 Trial Lawyers of America, 2012; “Pennsylvania Super Lawyer,” Philadelphia Magazine, 2004-2008, 2010-present; inclusion on the Martindale-Hubble Lawyer Bar Register of Preeminent Lawyers since 2000; Honorary Captain, Montgomery County Sheriff’s Department; and a 33rd Degree Scottish Rite Mason NMJ, Royal Arch Mason York Rite and Shriner.

Mr. Castor is a life-long resident of Montgomery County, born in Abington Township and now residing in Lower Salford Township with his wife, Elizabeth, and two children. May I add, to give you a more complete understanding of the range of Mr. Castor’s activities, he has also served as a Confirmation Class Teacher at the Abington Presbyterian Church and as a Harleysville Baseball Coach.

MBA / FEATURE

Alternatives to Incarceration in Montgomery County

By Scott C. McIntosh, Esq., MBA Criminal Defense Committee Vice-Chair

E

ven those of us that

do not practice

criminal law may have

noticed the pendulum swinging away from “get tough on crime” towards a “get smart on crime” philosophy. Our legislature has recently continued the trend to prioritize and advance alternatives to incarceration for nonviolent offenders and has authorized early release mechanisms for prisoners who meet eligibility requirements. These measures also include efforts to scale back certain sentencing provisions and returns to prison for probation and parole violators. These evidence-based practices amount to cost savings which allow for reinvestment back into other aspects of the criminal justice system, including treatment and local law enforcement.

RIP, SIP, RRRI, Boot Camp, Drug Court, Behavioral Health Court and Veterans Court are all available right here in Montgomery County to address the root cause of criminality

and to alleviate our ever-increasing prison population.

Senate Bill 100, approved by the Governor on July 5, 2012, has expanded on these sentencing provisions. Offenders convicted of certain low quantity drug trafficking offenses, including low tier mandatories, may now be sentenced to county intermediate punishment. SB 100 also authorizes eligible offenders to receive a RRRI (early release) minimum sentence even if a mandatory sentence is authorized. The bill also widens the net of eligibility for the underutilized treatment-based SIP program and increases the age limit for Boot Camp to age 40. Additionally, the Safe Community Reentry program was created to ensure successful reintegration and reentry of parolees back into the community by coordinating services such as housing, health care, education and job training.

SB 100 also added a section to Title 42 (§9771.1) which allows common pleas courts to establish a program to “impose swift, predictable and immediate sanctions” on probation violators under supervision for drug-related crimes.

The program requires drug testing, a violation hearing within two days, and, in lieu of revocation, sanctions of three days jail time for a first violation,

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seven days for a second violation, fourteen days for a third violation and so on.

As many of the inmates in our prison are probation violators, perhaps this new law will become a viable solution in our county soon.

Much of the crime in the county is in some way related to drugs and alcohol. As the nation shifts away from the infatuation with long-term incarceration as the perceived solution to drug addiction, problem-solving courts, such as Drug Court, have been tremendously successful in both reducing recidivism and prison populations. There are now over 2,600 drug courts nationwide, almost one for every county in the U.S. Treatment, combined with structure and intensive supervision, has been effective in reducing addiction-fueled crime. Similarly, Behavioral Health Court diverts the mentally ill away from the prison system and into the treatment setting. And with almost a million veterans in Pennsylvania, Veterans Court offers a more appropriate disposition and a unique way to address the needs of veterans involved in the criminal justice system.

Our elected representatives across the political spectrum are now encouraging the defense bar, our colleagues at the District Attorney’s office and our judges to think “outside the cell” when analyzing the appropriate remedy to criminal behavior. By considering all of the relevant circumstances of an offense, we must assess not only the risks, but also the needs of an offender in an effort to reduce future criminality.

MBA / FEATURE

The American Taxpayer Relief Act of 2012: The Federal Estate, Gift, GST and Selected 2013 Income Tax Changes

By Michael J. Moyer, Esq.

T

he American

Taxpayer Relief

Act of 2012, P.L.

112-240 (the “Act”) was signed into law on January 2, 2013, following a period of taxpayer uncertainty and busy 2012 year-end planning for the possibility of a return to pre-EGTRRA tax laws.

For 2013, the applicable exclusion amounts from Federal Estate, Gift, and Generation-skipping transfer (GST) taxes were increased to $5.25 million, per individual, to be annually adjusted for inflation. The Federal Estate, Gift and GST tax rates were increased to forty (40%) percent. Portability among spouses, or the ability to use a predeceased spouse’s applicable exclusion amount on the second-to-die spouse’s tax return, has been made permanent, meaning generally a married couple both dying in 2013 will not pay Federal Estate or Gift tax on up to $10.5 million. Notably, GST was not made portable among spouses, although deemed automatic allocations of GST exemption were retained in the Act. The state death tax deduction (as opposed to a credit) has been made permanent. The annual exclusion for making gift-tax free transfers increased to $14,000 or $28,000 for married taxpayers who split gifts.

The Act also imposed significant changes to the Federal income taxation of estates and trusts, and individual beneficiaries of those entities. Unlike individuals, the new top Federal income tax rates of 39.6% apply for trusts and estates with over $11,950

only the ultra-high-net worth individuals, an increasing number of states will likely enact or retain their own separate estate taxes, with exemptions de-coupled from the Federal exemptions. For example, in nearby New Jersey and New York, the applicable exclusion amounts are only $675,000 and $1 million, respectively, in undistributed income. Income, and portability is not recognized. Pennincluding trust and estate income sylvania continues to impose its inheridistributed to beneficiaries, is taxed at tance tax on net transfers to non-spousal the new 39.6% top rate, which now and non tax-exempt beneficiaries. applies to couples with over $450,000 Coverage of planning opportuniand individuals over $400,000 in taxable income. For capital gains above ties under the Act is beyond the scope of this particular article. While they the thresholds mentioned, rates were last, the higher exemptions will likely increased to twenty-percent (20%). mean that gifting into irrevocable trusts Another consideration in 2013 will continue to play a significant role is the 3.8% Medicare surtax on net investment income (part of The Afford- for high-net-worth estate planning, although a competing interest will able Care Act of 2010), which applies be the income tax benefit of holding to individuals whose adjusted gross income exceeds $200,000 or $250,000 property until death. The Act is likely to increase focus on Federal income for married taxpayers, and for trusts and estates having over $11,950 in un- tax consequences of Trusts and Estates, distributed net investment income. The and many clients may decide now is the time to take action, before the winds of 3.8% surtax applies only to the lesser tax reform change again. of: (i) the amount by which the taxpayer’s modified adjusted gross income Michael J. Moyer, Esq. (LL.M. in exceeds the applicable threshold or (ii) Taxation) is an Associate Attorney at the taxpayer’s net investment income.

Friedman Schuman, P.C., a full-service Rather than expiring sunset law firm headquartered in Jenkintown, periods, the Act made these higher exemptions “permanent,” but tax laws are PA. Michael practices in Tax, Estate Planning and Wealth Preservation, Estate intrinsically tied to politics and these and Trust Administration, and Corporate exemptions could obviously change Law, and he is admitted in Pennsylvania, in the future. To fill the void created New Jersey and New York. by a Federal Estate tax that now taxes

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Attorney General

Kathleen Kane\ Joins our Bar!

Mrs. Kane kept her campaign promise by graciously accepting Bar President Paul Troy’s

offer to become an honorary member of our Bar.

P

By Pamela M. Tobin, Esq.

motivated by politics in her brief ennsylvania’s first elected female remarks following the reception. Mrs. Attorney General, Kathleen Kane addressed the standing-room only Kane, visited our Bar on March crowd which included fourteen Judges 13, 2013. Ours is the first bar of the Montgomery County Court of association the Attorney General Common Pleas including the Honoragreed to visit. Mrs. Kane made good able Joseph A. Smyth, Stanley R. Ott, on a campaign promise she had made to Wendy G. Rothstein. Mrs. Kane capped off her promise by graciously accepting Bar President Paul Troy’s offer to become an honorary member of our Bar. The Attorney General was as effervescent, gracious and down-toearth as she was portrayed during her maverick campaign. Meeting her, you immediately felt that this time the media got it right. Mrs. Kane was without pretense, as she Attorney General Kathleen Kane and MBA looked you Bar President Paul Troy. straight in the eye and Bernard A. Moore, William R. invited you to Carpenter, Emanuel A. Berspeak about tin, Arthur R. Tilson, Thomas whatever C. Branca, Thomas P. Rogers, was on your Garrett D. Page, Kelly C. Wall, mind. Carolyn Tornetta Carluccio, Gary S. She took her time to answer questions Silow and Richard P. Haaz. Other digand spoke personally about herself and nitaries included Commissioner Leslie her family. She appeared visibly moved S. Richards, District Attorney Risa when some of us reminded her that she Vetri Ferman, Public Defender Keir has become a trailblazer for women.

Bradford-Grey, Court Administrator She laughed readily, mingled freely and Michael R. Kehs and Clerk of Court was genuinely enthusiastic about being Ann Thornburg Weiss. with us. Mrs. Kane appears to be no Mrs. Kane announced that her ordinary politician. platform as Attorney General is to In fact, she denounced being enforce the laws of Pennsylvania. She

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described some of the major actions her office has taken since January, including issuing indictments involving a Turnpike pay-to-play scheme; heroin distribution; child predation; and cocaine trafficking between state lines. On the civil side, the Attorney General has entered into numerous large monetary settlements as well as disapproved a previously proposed lottery contract.

Mrs. Kane announced that equally important to her as Attorney General is educating our youth on ways to avoid becoming victimized by crime. To that end, she declared her intention of visiting schools and community centers through

out the Commonwealth to support our youths and their families. Mrs. Kane’s articulation of her priorities as Attorney General confirmed our sense on meeting her that she will be her own person as our Attorney General.

The Bar thanks Wendy G. Rothstein for ensuring that our Bar was the first to receive the Attorney General. The evening was one our Bar, and I know Wendy, will cherish in more ways than one.

MBA / FEATURE

MBA Welcomes New Board Members Meet the 2013 Additions to our Board of Directors Edward J. DiDonato. Partner at Fox

Rothschild LLP in Blue Bell. Over 35 year’s experience in Bankruptcy and business law, business reorganizations, creditors rights and representation of trustees; served on the Third Circuit Judicial Merit Selection Committees for both Bankruptcy and Magistrate Judges for the Eastern District of Pennsylvania; a frequent guest lecturer for Montgomery and Philadelphia Bar Associations; a Pennsylvania Super Lawyer for 2005 -2013 ; rated by his peers as AV; a graduate of Villanova University and Widener University School of Law; he was voted Man of the Year by the Italian American Press Club, a member of the Board of Directors of the Justinian Society and Co-Chair of the MBA 2013 Bankruptcy/Creditors and Debtors Rights Committee.

Stewart J. Greenleaf, Jr. is a

shareholder in the law firm of Elliott Greenleaf & Siedzikowski, P.C. in Blue Bell. Mr. Greenleaf concentrates his practice in a wide-range of commercial litigation matters, as well as appeals to Pennsylvania’s appellate courts. Mr. Greenleaf is a 2004 graduate of American University’s Washington College of Law where he served as president of the American University chapter of the Federalist Society for Law and Public Policy Studies from 2002 to 2003, and received a B.A. from the University of

Maryland. Following law school, Mr. Greenleaf served a judicial clerkship with President Judge Emeritus Stephen J. McEwen, Jr. of the Pennsylvania Superior Court. From 2008 through 2012, he was named a Pennsylvania SuperLawyers “Rising Star.”

Mr. Greenleaf is active in the community both within and outside of the legal profession. In addition to serving on the Montgomery Bar Association’s Board of Directors and as President of the Association’s Trial Lawyer’s Section, he represents child victims of abuse with the Montgomery Child Advocacy Program.

Outside of the legal profession, Mr. Greenleaf serves as a member of the Upper Moreland Parks and Recreation Advisory Commission. Mr. Greenleaf has also served as a hearing committee member for the Pennsylvania Supreme Court’s Disciplinary Board and as a Trustee of the Upper Moreland Free Public Library.

In November 2011, Mr. Greenleaf was elected as Controller for Montgomery County, PA. In that role, he oversees the county’s $400 million in annual expenditures, as well as the county’s $440 million pension fund.

Mr. Greenleaf is a member of the Bars of the Commonwealth of Pennsylvania, the State of New Jersey, the United States District Courts of the Eastern District of Pennsylvania, the Western District of Pennsylvania

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and the District of New Jersey, the Third Circuit Court of Appeals, and the United States Supreme Court.

Mr. Greenleaf’s professional relationships include the Pennsylvania and Montgomery Bar Associations and the Pennsylvania Association of County Controllers.

Mark F. Himsworth has been han-

dling commercial litigation matters for over 20 years. A member of the Litigation Department at Hamburg, Rubin, Mullin, Maxwell & Lupin, a considerable amount of his practice is related to business disputes, including cases involving covenants not to compete, interference with contractual relations, unfair competition, misappropriation of trade secrets, commercial defamation, and partnership and shareholder disputes which include cases involving minority oppression and squeeze outs. In addition, he handles a wide spectrum of construction disputes, including construction defect claims, mechanic’s lien claims, unfair trade practice and consumer protection law claims, municipal bid litigation, and payment and performance bond claims. He also represents residential and commercial brokers in broker malpractice cases and in commission disputes and individuals and companies in various real estate disputes, including quiet title actions, partition actions,

claims involving adverse possession, lis pendens, easements, deed restrictions, disputes involving both residential and commercial agreements of sale, and tax assessment appeals. Mark is a past President of the Montgomery Trial Lawyers and is a member of the Montgomery Inn of Courts as a Barrister and past Treasurer. In 2010, 2011 and 2012 Mark was named by Super Lawyers magazine as one of the top attorneys in Pennsylvania. Only five percent of the lawyers in the state are named to the list. He is a former member of the Board of Directors of the Patrician Society, a non-profit food cupboard devoted to helping the needy in the Norristown area and the United Fund of Collegeville-Trappe, Inc., a non-profit serving various charities in the Collegeville-Trappe area. He is a past President of the Board of Directors of Big Brother/Big Sisters of Montgomery County, and was counsel for that organization. He is also a former member of the Trappe Borough Planning Commission. A graduate of the University of Notre Dame in 1984 (B.A. Accounting), Mark obtained his law degree from Widener University School of Law in 1987.

Jacqueline M. Reynolds is a member of the Health Care Liability Practice Group in the King of Prussia office of Marshall, Dennehey, Warner, Coleman and Goggin. Throughout her 16-year career, she has provided legal counsel to physicians, physician practices, nurses, allied health professionals, hospitals and health systems. She handles cases throughout five Pennsylvania counties.

Jackie received her Bachelor of Arts degree and paralegal certificate from

Cedar Crest College, where she was also the recipient of the Butz Award as the member of the senior class who exerted the best influence in her college life and association. She worked for defense litigation law firms in Philadelphia before returning to school at the Temple University School of Law. She joined Marshall Dennehey in 1995 as a law clerk, and has remained with the firm since that time.

She concentrates her practice in the Medical Malpractice and Premises Liability areas. Member of the Pennsylvania and New Jersey Bars.

American Bar Association, Montgomery Bar Association, Pennsylvania Bar Association, American Inns of Court, Montgomery County, Medical Legal Society, Montgomery County ,Trial Lawyers Section, Montgomery County and Women in the Law, Montgomery County Jackie received her J.D. from Temple University School of Law and the Cedar Crest College-Allentown, B.A. American History.

accidents, and commercial litigation.

He is an active member of the Pennsylvania Bar Association and the Montgomery Bar Association. Mr. Wilson served as the 2012 President of the Young Lawyers’ Section of the MBA. He is currently the Co-Chair of the Unauthorized Practice of Law Committee and a member of the Trial Lawyers Section, Bench Bar, Medical Legal and Long Range Planning Committees. Mr. Wilson is a former Editor of the Montgomery County Law Reporter. He has been named a Rising Star by Super Lawyers magazine. He is also an appointed member of the Environmental Advisory Commission of Springfield Township, where he lives with his wife and two daughters.

Seth D. Wilson

is a shareholder at Morris and Clemm, P.C. He graduated from Lafayette College in 2000 with a degree in International Affairs. He is a 2003 graduate of the Temple University Beasley School of Law where he focused on trial advocacy.

Mr. Wilson practices in Pennsylvania, New Jersey and the federal courts. He handles plaintiff’s personal injury matters, including medical negligence, products liability and automobile

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OF THE PEOPLE,

by the People,

FOR THE PEOPLE. & A UNIQUE COUNTYWIDE ARTS INITIATIVE COURTHOUSE IMPROVEMENT EFFORT

By Melissa M. Boyd, Esq.

L

ike many great undertakings, this one began with someone staring at a blank wall. In this case, that someone was 38th Judicial District of Pennsylvania Court of Common Pleas Judge Carolyn Tornetta Carluccio. Judge Carluccio, a pioneering past president of the Montgomery Bar Association, now serves as the Chair of the Community Outreach Committee. Having recently complet-

ed a series of consumer educational video vignettes featuring local attorneys, the committee was charged with finding a new project.

And so Judge Carluccio found herself staring at a blank wall when inspiration struck. “As a judge, I spend much of my time facing out into the courtroom. During one particular recess, I noticed that something was missing from my courtroom: artwork.”

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Judge Carluccio brought her idea to the next meeting of the MBA’s Community Outreach Committee. The committee shared her enthusiasm and worked diligently to come up with a project that would both serve the community and beautify the county courthouse.

Each and every day, the doors of the Montgomery County Court House are opened to serve citizens from 38 townships and 24 boroughs. The court-

house represents the ideals of democracy and stands as a pillar of justice in our community, but for those who must avail themselves of court intervention, the very idea of visiting the courthouse can be overwhelming. Few things are more stressful than a day in court. For litigants, whether attorney or client, the strain of a trial is enormous. For law enforcement, for victims facing their abusers and for those traumatized by events in which they’re forced to testify, a day in court can be downright scary.

From the unease of the albeit necessary security check upon entering, to the cold, cavernous hallways; the emotionally charged courtroom testimony; the sometimes gruesome trial evidence and other courtroom stressors – there’s just not a lot of comfort in a day in court.

Situated in the county seat of Norristown, the courthouse is an architectural treasure.

Despite the unique mix of history and progress that the courthouse represents, it has been decades since the interior of the courthouse underwent a significant transformation or received a cosmetic facelift. In the early 1950s, artist George M. Harding was commissioned to paint grand murals in the main courtrooms of the 2nd and 3rd floors, depicting scenes from the county’s rich history. No other art initiatives for the commissioned since that time. If you walk down any of the courthouse hallways or visit any of the newer courtrooms, you will see blank, and I venture to say, uninviting walls.

In the shadow of tough economic times and widespread budget cuts impacting county organizations like

Legal Aid and the Montgomery Child Advocacy Project, members of our legal community and those of us who visit or conduct business in government buildings like our courthouse recognize there are far more pressing issues for our tax dollars to address than sprucing up the courthouse And so, MBA’s Community Outreach Committee developed Courting Art: a community art initiative which aims to populate the interior walls of the Montgomery County Court House with artwork from county residents.

The committee, a group comprised of lawyers, community leaders, and business leaders, were able to develop this initiative from the ground up completely internally. “We were able to tap particular members with experience in art and exhibitions, whose input was invaluable in creating this project,”

community, and in exchange provide a forum for local artists to showcase their work for years to come.

For this year’s inaugural contest, “What I Love About Montgomery County,” artists age 55 or better from Montgomery County are invited to create and submit original paintings, drawings and mixed media for a juried, VIP art exhibition and contest. Make no mistake, the artwork that the MBA COC expects to receive from those senior artists should be nothing less than exceptional. Many senior citizen communities and centers have incredible art programs. These facilities are teeming with talented artists and the MBA COC felt there was no better forum to showcase the talents of the county’s senior artists. Joanne Kline, a member of the MBA COC and Executive Director of Aging and Adult Services of Montgomery County, has been a tremendous supporter of the contest and affirmed the incredible artwork being produced by our county’s seniors.

Prizes will be awarded for winning entries at the conclusion of this year’s event. A grand prize of $1,000 is planned. Unique to this year’s Courting Art exhibition and contest, our esteemed panel of judges will include, among others, sitting judges

says Judge Carluccio. Courting Art will embody a series of community art contests and public exhibitions, hosted by the Bar Association and its partners, over the next several years. Montgomery County is loaded with artistic talent. These contests and exhibitions are intended to solicit work from the

In mid-March, Community Outreach Committee Chair, Hon. Carolyn T. Carluccio (c) and Vice-Chair, Melissa M. Boyd, Esq. (r) made an on-air appearance on the Hank Cisco Show.

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Continued on page 22

The Honorable Carolyn T. Carluccio addresses media at a Courting Art press conference.

from the Montgomery County Court of Common Pleas. Immediately following this year’s exhibition, all art will be returned to its creators and winners will be notified. One reproduction or likeness of each winning piece will then be produced at the expense of the Bar Association and its sponsors. These reproductions will be displayed for years to come on the walls of the courthouse.

Fittingly, May is Older Americans Month. This year’s exhibition will be open May 10 & 13, 2013 from 10 a.m. until 5:00 p.m., with a VIP awards reception following the exhibition.

The exhibition and VIP reception will be hosted at the Montgomery County Community College Fine Arts Center, commonly known as the “Art Barn.”

The Montgomery County Community College has been a wonderful supporter of the Montgomery Bar Association.

The College’s representative to the MBA COC, Vice President of Development and External Affairs Sharon Beales, was instrumental in securing the host site for the exhibition and reception.

With the blessing of President Judge Hon. William J. Furber and the Montgomery County Commissioner’s Office, Courting Art was launched with a Valentine’s Day press conference on February 14, 2013 in Judge Carluccio’s courtroom.

The community response to this initiative has been impressive. Anticipated submissions include one senior’s depiction of her 300 year old home. Residents from Shannondell at Valley Forge, one of the largest continuing care retirement communities in the area, have begun work on their masterpieces. With the theme, “What I Love About Montgomery County,”

the pool of submissions will be vast in content and interpretation.

In response to the recent media coverage, several area businesses, law firms, community partners and individuals have already begun fulfilling their fiduciary call by agreeing to sponsor our inaugural contest and exhibition. Entry level sponsorships start at just $200; however, the most popular sponsorship option thus far has been at the $500 level, where sponsors receive considerable value in exchange for their generosity and support.

At the $500 level, sponsors’ names and logos will appear in ads placed in legal news media like the Legal Intelligencer and in popular general circulation newspapers throughout Montgomery County. These sponsors will also be recognized for their generosity and support on signage and materials at the Public Exhibition on May 10th and May 13th, as well as the V.I.P. Awards Reception on May 13th. All supporting sponsors will receive prominent recognition online and in various MBA media like SIDEBAR, the Montgomery County Law Reporter and more. Several other sponsorship opportunities are available as well.

As an added incentive to our first year supporters, one lucky sponsor will take home an original watercolor of the Montgomery County Court House, painted by Kathleen S. Howell. Ms. Howell is an award-winning artist, residing in Perry County, PA who has painted some of Pennsylvania’s most significant legal arenas. Her works also include beautiful watercolors of the courthouses from each of the 67 counties

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of Pennsylvania. Her County Courthouse Series is displayed on the first floor of the Pennsylvania Judicial Center in Harrisburg. Dean Phillips, Esquire of Elliott Greenleaf & Siedzikowski, P.C. kindly commissioned and donated this work of art to be raffled off to a lucky sponsor.

Complete information on this year’s inaugural Courting Art Contest and Exhibition can be found online at www.courtingart.com. If ever you needed any affirmation of the worldclass talent, work ethic and initiative of the MBA staff, it is evidenced through the construction of this website. Each year, members of our legal community, through the bar association, the Montgomery Bar Foundation, and their own individual and firm-sponsored pro bono efforts give countless hours of time and money to support justice-related causes in Montgomery County. Courting Art is a unique model, however; the project is aimed at physically and aesthetically improving our county courthouse and reducing the stress typically associated with a day in court. In order to succeed, the project will rely heavily on the support of sponsors. Please consider supporting this great cause by serving as a sponsor. Donations of any amount will be accepted and go towards the funding of this and additional Courting Art projects in the future. Visit the “Sponsors” section of www.courtingart.com for more information. With your help, the nonpareil grand façade of this great courthouse will soon be matched by its interior beauty.

Perhaps Judge Carluccio sums it up best in discussing her hope for the project: “the next time that I glance at a wall in my courtroom, I want to be inspired by the artwork, not the lack thereof.”

WIRETAPS

Members in the news Michael Moyer (Friedman Schuman in Jenkintown, PA) and Elaine Moyer (Kane Pugh) welcomed baby Garrett Joseph on December 13, 2012.

Michael Drossner has been appointed by the Whitemarsh Township Board of Supervisors to the Ethical Standards Advisory Board.

Adam L. Fernandez a member of Wisler Pearlstine, LLP has been appointed by the Nether Providence Township Board of Commissioners to be a permanent member of the Township’s Zoning Hearing Board for a five (5) year term.

Philadelphia-area based Stewart, Bernstiel & Rebar (SBR) announced that shareholder Bryan W. Petrilla has joined the firm as a partner. Petrilla handles litigation throughout the country, with a focus on insurance coverage disputes.

David L. Allebach, Jr., a partner of Yergey Daylor Allebach Scheffey Picardi-

Pottstown office, was appointed to the Board of the newly created Philadelphia Freedom Valley Forge YMCA. Jennifer J. Riley, Associate Attorney at the Lansdale law firm of Rubin, Glickman, Steinberg and Gifford, P.C. co-authored a new book by the PBI entitled Custody Law and Practice in Pennsylvania. The publication was written by some of Pennsylvania’s best family law professionals and provides practioners with a comprehensive resource covering substantive, procedural, tactical and ethical considerations in the area of custody law.

Justin A. Bayer is now a partner at Kane, Pugh, Knoell, Troy & Kramer, LLP and Mary Coyne Pugh has joined the firm as Special Counsel.

Claudia Huot has been named a partner at Wisler Pearlstine. She has been an associate in the firm since 2001, working part-time for eight years before full-time status in 2010.

Shemtob Law, PC, is pleased to announce that Christina DeMatteo has joined the firm as a partner. Ms. DeMatteo’s practice includes all aspects of family law litigation, including divorce, property division, custody, support and abuse, primarily in Montgomery, Chester, Delaware, Bucks and Philadelphia Counties.

Kevin H. Buraks, of Portnoff Law Associates, was elected President of the Tredyffrin/Easttown School District.

Thomas G. Wilkinson of Cozen O’Connor has been elected president of the Haverford Civic Association.

Obermayer’s family law attorney, Michael E. Bertin served as a trainer for the Philadelphia VIP CLE Training Program “Divorce Practice in Philadelphia” on December 7, 2012. He has also been named chair of the Philadelphia Bar Association’s Family Law Section for 2013.

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montgomery bar foundation

A Call to Join Our Fellows Program Contributions will help support the delivery of legal services to the disadvantaged.

By Steven H. Lupin, Esq. Montgomery Bar Foundation President

T

his month, the Montgom- ery Bar Foundation will kick off a new drive for its Fellows Program. The program, which was established in 2007 under the leadership of then-President of the Montgomery Bar Foundation William H. Pugh, V, is major source of funding for the foundation’s annual grants program.

Participation in the Fellows Program requires a minimum commitment of $1,250, payable in five annual installments. These multi-year payments generate a steady stream of funding that enables the foundation to maintain a consistent level of support. Moreover, this structured approach benefits program participants by spreading the charitable tax deduction over several years.

The Fellows Program has been highly successful, attracting support from a broad base of Bar Association leaders and members, and generating more than $110,000 since its inception. These monies have been distributed to organizations that provide counseling, advocacy services, and free legal assistance to victims of crime,

poverty, abuse and discrimination, and also to other law related causes.

The first round of pledges were fulfilled in 2011, when the initial Fellows paid their commitment in full.

Many of those individuals have already renewed their support for an additional five years; for those that haven’t done so, we encourage you to take this opportunity to do so, by calling the Bar Association at 610-279-9660 or emailing hbendit@montgomerybarfoundation.org.

Public and private support for free legal services or legal related services for the most vulnerable members of our community has steadily declined over the past couple of years. This funding gap has led to staff layoffs and other extreme costcutting measures in many of the organizations providing these services, and their shrinking staff is overrun by the

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ever-growing need for their assistance.

As the charitable arm of the Montgomery Bar Association, the Montgomery Bar Foundation by its mission statement is committed to helping to close this gap and combat the continued erosion of legal related services and support.

Please join us in this effort. As lawyers, we have a special obligation to ensure that the doors of justice are open to all. By joining the Fellows Program, you are demonstrating a deep commitment to the cause of justice. More importantly, your commitment reflects compassion for those who struggle daily to make ends meet, keep a roof over their heads and protect themselves and their children from crime and abuse.

This year we will be introducing a number of new opportunities for program participants. You can learn more about these, and download the Fellows Program enrollment form, by visiting montgomerybarfoundation.org.

The Montgomery Bar Foundation is a 501(c)(3)

non-profit organization whose mission is to improve, facilitate and support justice and fair treatment for all. The official registration and financial information of the Montgomery Bar Foundation may be obtained from the Pennsylvania Department of State by calling toll free, within Pennsylvania, 801800-732-0999. Registration does not imply and endorsement.

movie review

Oz the Great and Powerful

By Lindsay C. Hanifan, Esq.

O

ne hundred and thirteen years after L. Frank Baum’s book, the Wonderful Wizard of Oz, Walt Disney Pictures has released the prequel: Oz the Great and Powerful.

The movie tells the story of how a circus performer, Oscar Diggs (played

by James Franco), makes his way to the Land of Oz and becomes the Great and Powerful Wizard. Just like Dorothy Gale in the Wonderful Wizard of Oz, Oscar is whisked out of Kansas by a powerful tornado. There, he is met by a witch, Theodora (played by Mila Kunis), who believes him to be the wizard that was prophesized to avenge the death of the last king. After consulting with her sister, Evanora (played by Rachel Weisz), Theodora sends Oscar to the Dark forest to kill the Wicked Witch.

Along the way, Oscar befriends a flying monkey named Finley and an adorable little China Girl. Once they reach the Dark Forest, they discover that the “Wicked Witch” is really Glinda the Good Witch (played by Michelle Williams). Although Glinda knows that Oscar is not a true wizard, she believes that he can still lead the people of Oz to overthrow the truly evil witch, Evanora. With the help of the Munchkins, Tinkers and Quadlings, Oscar devises a plan to trick Evanora into believing that he is truly the wizard meant to rule the Land of Oz. Oscar’s plan involves many references to the Wonderful Wizard of Oz, including a field of poppies, scarecrows, and sleight of hand. In the end, Evanora and Theodora are banished, the Land of Oz is saved, and Oscar becomes king, with the lovely Glinda as his queen.

The entire movie is visually rich, even on a regular 2D screen. But viewers can also choose to see it on IMAX 3D. The characters are all well-played, and the humor is appropriate and entertaining for most ages. Although some scenes may be frightening for

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young children, the story is clearly geared towards younger viewers. Overall, if you enjoyed watching The Wizard of Oz as a child, you will probably enjoy seeing this movie and learning how Oscar became “the man behind the curtain.”

MBA / FEATURE

Real Estate Committee Task Force Meets with Recorder of Deeds

By Marc D. Jonas, Esq., MBA Real Estate Committee Chair

T

he Real Estate Com-

mittee continues as

one of the MBA’s

active and vibrant committees, thanks to the terrific support from its member attorneys. Except for the summer months, the committee meets monthly for lunch with CLEs and other programs of interest to its members whose practices include real estate, municipal, and land use law. If you are on the Real Estate Committee Listserv and have not attended any of our meetings, or if you are not currently a committee member, we invite you to join the committee at one of its lunch meetings for the information and collegiality.

The Real Estate Committee received a number of reports relating to the rejection of documents offered for recording at the Office of the Recorder of Deeds. Specifically, reports about a significant number of document rejections resulting in the imposition of rejection fees and inconvenience to the attorneys and their clients. In response, the Real Estate Committee invited our Recorder of Deeds, Nancy Becker, to join the committee at a luncheon meeting in January. Nancy Becker welcomed and graciously accepted our invitation.

At that meeting, there was an open and candid discussion about document rejection. It became clear that there was indeed an issue that warranted special attention and action by the Real Estate Committee.

As Chairman, I appointed a task force chaired by Carl Weiner, joined

by Adam Bram and Ellen Enters. The task force immediately went to work

and met with Nancy Becker and her two chief deputies. This joint meeting followed Nancy Becker’s own meeting with her staff in the effort to address concerns raised by the Real Estate Committee.

The issue addressed by the Real Estate Committee’s task force is a significant one, since document rejections have been as high as 12% of the documents offered for recording.

Following its meeting with Nancy Becker and her deputies, the Committee Task Force reported back to the Real Estate Committee and was optimistic that they were well on their way to correcting a number of the practices that led to this high document rejection rate.

The discussion at the Real Estate Committee and the efforts of the committee members who volunteered for the task force are yet another example of how a Bar Association committee can work effectively on behalf of both practicing attorneys and the public, in this case, those who have the occasion and need to record documents at the Office of the Recorder of Deeds.

In an effort to whet your appetite, here is a list of the upcoming luncheon meetings and programs of the Real Estate Committee, all at noon.

Thursday, April 18th CLE on the use of Settlement Agreements in land use.

Friday, May 24th Judge Gary S. Silow; A View from the Bench of a Jurist and Professional Actor.

Thursday, June 20th Hot Planning Topics in Montgomery County presented by the Montgomery County Planning Commission.

SIDEBAR

26

SPRING 2013

MBA / FEATURE

Annual MBA Ski Trip /February 11, 2013 Blue Mountain

By John R. Howland, Esq.

W

e awoke to the sound of steady hard rain, and glumly gath- our gear and sloshed up the Turnpike through the rain and mist. My son and I wondered aloud whether the trip was worth it, whether we might not ski at all, whether the snow would be nothing but slush to sap the strength and energy from our legs by the 3rd run.

As we drove up the south face of the Blue Mountain, into the fog, we realized the rain had finally stopped. We still fully expected to be skiing on slush.

For the rest of the day, on our

dozens of rides up the lift, after our break-neck runs down every slope on the mountain, Patrick and I exclaimed how wrong we were. We had failed to take into account the positive karma infused onto the mountain by our personal hosts, Joe and Trish Lynch.

It started with the brightness of the blooming forsythia lighting up our private room, that seemingly cast its spell over the fog-shrouded mountain, nearly empty of skiers but holding onto the near-perfect snow conditions throughout the day. We sped down repeatedly, to be greeted by an empty lift for our quick deposit back at the top and our

SIDEBAR

27

SPRING 2013

next run down. We finally succumbed to our exhausted legs at around 3:30.

As always, the 20+ brave hearts from the MBA enjoyed the lunchtime camaraderie and the plentiful selections of Joe and Trish’s gourmet candlelight wine and cheese spread supplied by the Bar Association. We were further rewarded by door prizes generously supplied by our own local Salter’s Ski Shop. Each year, those of us lucky enough to have been there make our drive back down the Turnpike happily looking forward to the next.

We’ll see you there, February 2014.

MBA / FEATURE

Montgomery Bar Association Welcomes New Leaders

O

n Friday, Jan. 11, the

Montgomery Bar

Association (MBA) held its

Annual Business Luncheon Meeting at the Meadowlands Country Club in Blue Bell. Nearly 300 local dignitaries, legal professionals and community leaders attended the event which included the election of the MBA’s officers for 2013, an awards

presentation to honor area attorneys, members of law enforcement and community leaders, as well as the installation of its 89th president, Paul C. Troy, Esq., with the ceremonial passing of the gavel.

A named partner at the Norristown law firm of Kane, Pugh, Knoell, Troy & Kramer, LLP, Mr. Troy is widely known for his legal acumen in

the areas of professional liability and medical malpractice defense. In June of 2012, he appeared on Philadelphia Magazine’s “Top 100 Attorneys In Philadelphia” list. In addition to his excellent reputation in the courtroom, Mr. Troy is respected among his peers as a leader in continuing legal education and for his contributions to the profession at both the state and county level.

Outgoing Board of Directors – Caren

Committee of the Year Award – Elder Law. Accepting on behalf of the 2012 Elder Law Committee, Robert C. Gerhard, III, Chair (left-center) and Vice-Chairs, Rosemary R. Ferrino, (left) and Michelle C. Berk (right). The Award was presented by 2012 MBA President Donald J. Martin, (rightcenter).

E. Morrissey, Sarinia M. Feinman,

2013 MBA President Paul C. Troy and MBA Past President Donald J. Martin.

Montgomery Bar Foundation Louis D. Stefan Law Enforcement Award – Montgomery Bar Foundation President Steven H. Lupin, (second from right) presents the Louis D. Stefan Law Enforcement Award posthumously to Plymouth Township Police Officer Bradley M. Fox. Accepting for Officer Fox are, from left: Lt. Jeff O’Brien and Ofc. Gerald DeSantis of the Plymouth Township Police Department, his parents Kathy and Tom Fox, wife Lynsay Fox, and brother Jim Fox.

Past President Donald J. Martin and E. Nego Pile. (Not in picture Craig B. Bluestein, Christen G. Pionzio).

President’s Award – Mark S. Cappuccio, (left) receives the President’s Award from 2012 MBA President Donald J. Martin. This award was given for his outstanding work and the successful real estate tax appeal representation of the Montgomery Bar Association in 2012.

SIDEBAR

28

SPRING 2013

Milton O. Moss Award –The Honorable

Paul W. Tressler accepts the Milton O.

Moss Award for distinguished service to the judicial system from Bar Foundation President Steven H. Lupin.

MBA / FEATURE

CLASS ACTION CY PRES: Another way of giving back

By Cary L. Flitter, Esq.

I

have been fortunate

enough, in connection

with the settlement

of a number of consumer class action cases, to have been able to recommend Legal Aid of Southeastern PA (and Montgomery Legal Aid before that) to be the recipient of left-over funds through the application of the cy pres rule. Nothing I could write could summarize the meaning of cy pres as well as the first paragraph from an opinion of the Court of Appeals for the 3rd Circuit just last month (In Re Baby Products Antitrust Litig., Feb 19, 2013): “The term ‘cy pres’ is derived from the Norman French expression cy pres comme possible, which means ‘as near as possible.’ When class actions are resolved through settlement, it may be difficult to distribute the entire settlement fund, after paying attorneys’ fees and costs along with fund administration expenses, directly to its intended beneficiaries—the class members. Money may remain unclaimed if class members cannot be located, decline to file claims, have died, or the parties have overestimated the amount projected for distribution for some other reason. It may also be economically or administratively infeasible to distribute funds to class members if, for example, the cost of distributing individually to all class members exceeds the amount to be distributed. In these circumstances, courts have permitted the parties to distribute to a nonparty (or nonparties) the excess settlement funds for their next best use— a charitable purpose reasonably approximating the interests pursued by the class.”

Since these funds arise from consumer class action lawsuits, the next best thing to redistribution is often to direct the funds to LASP, or similar Legal Aid organization, for use in

consumer credit education, counseling and advocacy.

How sorely these monies are needed!

The past county budget was a roller coaster of Legal Aid funding, concluding in a large cut from an already lean budget.

In settlement of a class action involving repossession practices of an area lender, about $55,000 was available from residual funds for LASP (with an equal amount paid to Villanova Law School for their consumer clinic program). In the 20 years of my career that I have been handling consumer class action, we have been fortunate enough to have nominated

About Cary L. Flitter, Esq.

Cary L. Flitter is a 2013 Pennsylvania Legal Aid Network Excellence Award Recipient, a long-time member of the MBA and founding partner of the Montgomery County firm Flitter Lorenz, P.C. He is a leading consumer protection lawyer and has trained many legal services attorneys in consumer law issues; has paid for legal services attorneys to attend consumer law training conferences; and he has directed nearly $2,000,000 in cy pres funds to support consumer law practice at legal aid programs in Pennsylvania. Mr. Flitter has worked personally with MidPenn Legal Services to set up a position and train staff on consumer law issues. In 2010, he initiated, designed and provided training for legal services programs on claiming and collecting attorney fees, once the Legal Services Corporation’s ban on such fees was lifted.

Flitter presents LASP Co-Executive Directors Liz Fritsch and Harvey F. Strauss with a much-needed check in the amount of $55,743.32. The terms of the agreement approved by the Court stated cy pres funds from a recent consumer class action settlement involving automobile repossessions be used for “consumer credit protection goals, including consumer education and counseling.”

recipients to receive nearly $2,000,000 in cy pres funds for an array of consumer purposes, and nearly $150,000 to LASP. I hope to be fortunate enough to continue to be able to nominate LASP for future cy pres awards. LASP is a particularly appropriate candidate if your case involves an area of the law and a

SIDEBAR

29

SPRING 2013

geographic area in which they service low-income consumers.

I am very lucky lawyer indeed to be able do well while doing good.

Harvey Strauss and Liz Fritsch of LASP will no doubt use every dollar wisely.

MBA / FEATURE

Current financial observations

By Michael J. Foster, Senior Vice President, Valley Forge Asset Management Corp./ Susquehanna Wealth Management

A

s we enter the Spring

of 2013, the stock

market is roaring,

the housing market is improving and homes are selling at higher prices, the job market is slowly getting better and overall people are feeling a little bit better about themselves and their financial condition. Of course, nobody likes the higher gasoline prices and higher taxes, including the end of the social security tax reduction.

The stock market fooled almost everyone in 2012 with its substantial gains during the period when the financial experts were concerned with the tepid economic recovery, the weakening economic environment during the summer of 2012 and the additional stimulus programs announced by various different countries, the presidential election and the yearend fiscal cliff debate. With all that to worry about, the market was up more than double digits and the leaders were the higher growth and the riskier stocks. The story continues into 2013 with an outstanding first quarter for stock market gains as earnings, outstanding corporate cash flows and reasonable valuations based on historic measurements continue to support higher stock prices. Many of

the public companies are in very good financial position with lower fixed costs, higher productivity, much lower cost of capital due to lower interest costs and extremely positive cash flows. These companies are aggressively promoting increases in cash dividends to shareholders, buy backs of their shares in the open markets and strategic acquisitions of other companies. We have seen recently a number of public companies being acquired by other entities at prices substantially higher than their stated market values which indicate that stock market values are still very reasonable.

The low interest rate environment is also very supportive of stocks as alternative investments such as fixed income securities are less and less attractive at these low rates. Since 2008, billions of funds have been invested in both investment grade government and corporate bonds as well as junk bonds.

Most of the experts agree that we have started to see funds rotating back into the stock market from the over-valued bond accounts. This could be a major financial story in 2013 if we continue to experience an improving domestic and international economy. Starting in the 2012 fourth quarter, the economic trends have been improving and they continue to do so now.

The low interest rate environment, improving consumer confidence and better job confidence, has helped the housing market to improve. You hear real estate agents talking about the lack of inventory or homes for sale to meet

SIDEBAR

30

SPRING 2013

an improving demand for housing.

The low rates have also assisted many who have been able to refinance and we probably should not expect rates to go lower that they currently are. People who can should take advantage of the low rates and improve their financial position.

Over the last two years, we also experienced improving economic conditions in the earlier part of 2011 and 2012, only to hit a wall so to speak and slow down economically. Hopefully, 2013 feels a little different and we will consistently improve over the entire period.

I can always be reached at mfoster@ vfam.com and at 610-687-6800.

upcoming events

Superior Printing of Books and Magazines

MBA May-sept Upcoming Events

Since 1994 we have been helping organizations preserve their collections and history by printing beautiful hard and soft bound books. By self publishing our clients market and sell their own publications to maximize profits and serve their audiences.

May 1, 2013 Law Day

May 10 & 13, 2013

Courting Art Exhibition at the Montgomery County Community College Fine Arts Center Visit SeaberTurner.com for more information or call 610-944-6871, and get started today.

We’re2013 with you every step of the May 21, Get-in-the-Loop Luncheon: Pottstown

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For more information, call 610.374.1936 visit www.everybody-pilates.com. or visit www.stratixsystems.com.

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Visit MBACLE.org for the latest schedule of upcoming INSURANCE INVESTMENTS TRUST CLEs; and BANKING visit montgomerybar.org for the latest

schedule of events and to register for any of the above- mentioned events.

6

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SIDEBAR

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SPRING 2013

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MBA / FEATURE

Helping Our Bar Foundation Achieve Its Mission Can be as easy as linking your TD Bank accounts to the Montgomery Bar Association Affinity Program An important message from MBA Executive Director Nancy R. Paul

A

s you may have heard or read

by now, the MBA has recently

entered into an exciting new affinity relationship with TD Bank.

Over the years, many of you have had an opportunity to meet or serve on a committee with TD Bank’s Regional Vice President, Geoffrey D. Brandon.

Geoff is a familiar face, a good friend, a longtime Community Outreach Committee member and has been an active participant in our Legal Expo and Legal Aid Golf Classic for as long as I can remember.

This year he’s serving our Bar Foundation as a Director and recently turned us on to TD Bank’s Affinity Membership Program, which will provide our Bar Foundation the opportunity to earn significant financial contributions at no cost to our members or our organization. All it takes is a phone call or a visit to your local TD Bank branch and they’ll do the rest. Here’s how it works...

If you are presently a TD Bank customer, contact your branch manager, let them know that you’re an MBA Member and that you’d like your accounts linked to the Montgomery Bar Association Affinity Program. There’s no cost to do so, it’s completely confidential (no account information will be shared or exchanged) and the Montgomery Bar Foundation will automatically begin receiving donations from TD Bank based on a percentage of your annual balances. Checking, savings, money market, CDs and retirement accounts are all included and there’s no limit on the amount of your potential contribution! Just think of all the good things that you and our Bar Foundation will be able to do for our community, just by instructing your branch manager to link your accounts to the Montgomery Bar Association Affinity Program. Let your friends, family and co-workers know too. Everybody can link their TD Bank accounts and help the Bar Foundation get closer to achieving our mission of justice for all!

If you are not yet a TD Bank customer, make TD Bank your bank. Visit any TD Bank location and open any of the above mentioned accounts. Be sure to let the TD representative know

SIDEBAR

32

SPRING 2013

that you want your account linked to the Montgomery Bar Association Affinity Program. That’s it...TD Bank will take care of the rest.

Feel free to contact us with any questions you might have regarding this program, or visit any TD Bank location to speak with a Customer Service Representative. Thank you, in advance for your continued support of the Montgomery Bar Association and Montgomery Bar Foundation.

MBA / FEATURE

Can One Recover Unemployment Compensation Benefits after the Worker’s Compensation Case is Settled?

By Terence Sean McGraw, Esq. The Commonwealth Court has addressed the issue of whether one can recover Unemployment Compensation Benefits after the worker’s compensation case is settled.

In Lee v. UCBR, the Commonwealth Court ruled that a claimant who signs a written resignation as part of a workers’ compensation settlement is thereafter ineligible for UC benefits because the claimant voluntarily quit. At the time that Lee compromised her WC claim and signed the resignation, she was actually working modified duty with the employer, a crucial fact under UC precedent.

Although the result is correct according to the facts of Lee, the ruling appears to be expansive and apply to cases where written resignations should not bar a subsequent UC claim.

When one can no longer perform her job due to health reasons, the separation is deemed a voluntary quit under UC law. If the claimant can do other work within established restrictions, and the employer does not have that work or make that work available, the quit is deemed to be for “necessitous and compelling” health reasons. A quit that is caused by “necessitous and compelling” reasons does not disqualify the claimant from the receipt of UC benefits. The claimant must demonstrate: 1) restrictions preventing performance of the customary job but allowing other work, 2) communication of the restrictions to the employer, and 3) the unavailability or failure of the employer to offer alternative work within the restrictions. The analysis is focused on the time of separation.

These conditions are often met in the context of a WC settlement. In such settlements, the injured workers are often individuals who suffer permanent injury that prevent them from performing their customary job and for whom no alternative work has been made available. In fact, such individuals could apply for and collect UC benefits while collecting WC benefits. They ordinarily do not because the UC benefit is a credit that reduces the claimant’s WC benefits (and claimant’s counsel’s fee), adding no value to the claimant’s cash flow.

Until Lee, claimants’ attorneys obtained subsequent UC benefits for clients who sign a written resignation as part of a WC settlement. To establish financial eligibility, the client appeals the determination that they were not financially eligible and request application of the “alternate base year.” (Rather than looking back over a “base year” determined from the date of the application, a period when the claimant ordinarily has no wages due to the receipt of WC benefits, the UC service center looks back from the date of injury, over a period when wages were reported.) This alternate base year is a lesser known creation of the 1996 amendments to the WC Act and usually results in financial eligibility.

SIDEBAR

Then, counsel directed the UC Bureau’s attention to the time of separation and established that the 3 elements of the claimant’s burden of proof (above) had been met, often well before the execution of the written resignation in dispute. The subsequent written resignation became, then, an irrelevant action that was executed well after the legally qualifying separation. Such claimants have been routinely awarded subsequent UC benefits, sometimes to the surprise of employers and their counsel, who believed that the law was consistent with the expansive ruling in Lee. In Lee, however, the employer actually made modified work available to the claimant. Apparently she had an ongoing loss of wages and was receiving a partial disability benefit, because a WC settlement was subsequently negotiated. But when she resigned, the written resignation and the separation from employment were concurrent. Her quit was truly voluntary, rather than forced by health reasons. She could not establish the third element of proof set forth above - the unavailability of alternative work.

Unfortunately, rather than applying the legal analysis that was well established by its own precedents, and finding Lee ineligible because she could not meet her burden of proof, the Court cited two of its own previously unpublished opinions, and issued an expansive ruling that a claimant who executes a written resignation as part of settling a workers compensation case is ineligible for subsequent benefits because they voluntarily quit. As discussed above, when the proper analysis is employed, that should not always be the result. But until the issue is decided by the Supreme Court, it now always appears to be the result.

In light of the apparently expansive application of Lee, claimant’s counsel should now attempt to modify the resignation document to include language that the resignation is being tendered because of the claimant’s injuries and because no alternative work was available from the employer. If the document includes language releasing employment claims, the prospective UC claim should be specifically excepted. Even better, from the claimant’s perspective, language might be included confirming that the three elements of proof have already been met.

Routinely, such resignations/releases are not the subject of the negotiation discussion that occur when a workers compensation settlement is negotiated and are “tossed in” with the draft paperwork forwarded by employer’s counsel. After Lee, claimant’s counsel’s reply should be, “sorry, but that was not part of the deal.”

UC benefits are a significant financial asset that should be preserved to the benefit of the injured worker. They can represent as much as $25,000 of cash benefits that should not be blithely abandoned merely to effectuate a settlement of the WC claim.

33

SPRING 2013

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By Richard E. Cohen, Esq.

M

arch Madness is upon us, and when you think of that, you think of brackets, cold beer, and wings. And when you think of wings, you think of that Korean Japanese Fusion restaurant, Café SOHO 2.

Say what!?Sushi? No, both. Café SOHO 2 is the hands down home of some of the most unique, delicious, ridiculous wings you may ever experience.

Café SOHO 2, 920 DeKalb Pike in Center Square (next to Rita’s Water Ice just off the intersection of 73 and 202 North) has not even been open a year, but is making some noise for itself in the Blue Bell area. It is funky, somewhat reminiscent of a California rock and roll sushi bar. There are three dining areas and a sushi bar, flat screen televisions, upbeat music, red ceiling lamps/ sconces, and these high tech “call buttons” affixed to each table to immediately gain the attention of a server. One of our fellow members recommended this restaurant to me many months ago and I began dining here sometime thereafter.

This restaurant is known for the Soho Signature Chicken wings, described as “made fresh and cooked to order; double fried at low temperatures using our unique frying technique; excess oil drained and extra crispy wings hand brushed with house sauces.” It may be hard to imagine some of the best wings of your life being prepared at an Asian restaurant, but this is the real deal. Café SOHO 2 sells plenty of them, both dine in and take out, and people wait well over a half an hour from ordering because they are so good. The full order at $20.00

(approximately 18-20 wings) and half order at $12.00 (approximately 9-10 wings) can be prepared with soy garlic sauce, spicy, sweet and spicy, or sweet and sour. On this evening, we had a full order, half soy garlic and half sweet and spicy with a complimentary side of homemade pickled radish (which help calm the mouth from the heat). Some of the noises uttered by my self-proclaimed wing aficionado dining partner included,“sooooo crispy,” “juicy,” “really light,” “this is so good,” “they’re just different,”“Mmmmmm” and “I’m lovin’ these” (certainly more than he was lovin’ seeing on the flat screen TVs Nova getting their butts kicked by Louisville in the Big East Tournament).

Café SOHO 2 offers more than just wings.

The menu describes pages of sushi/sashimi/ maki selections, traditional noodle dishes, cutlet meals, and appetizers. In an effort to sample variety, we ordered for appetizer their French Fries ($6.95) and the Hawaiian Roll ($12.95). The fries are crinkle cut, very crisp and made gnawingly spicy with coarse ground black pepper, but are probably over priced. The Hawaiian Roll was extremely enjoyable, avocado and tuna on top, cooked shrimp, cucumber and fresh mango inside. If you have never tried a sushi roll with fresh mango, you really need to as the mango makes it jump alive.

For our entrées, my dining partner ordered the Stir Fry Seafood with Udon ($12.95). A large bowl of squid, mussels, clams, shrimp, carrots, peppers, onions, udon in a mildly spicy/sweet broth. Quite a hearty dish although somewhat messy to eat (not sure what my dining partner was

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35

SPRING 2013

thinking wearing his suit and tie, to meet me for this meal). My entrée was the Stir Fry Pork with Vegetables over rice ($11.95). The taste of this dish is terrific, with thinly sliced pork, vegetables in a robust moderately spicy sauce.

I have eaten at Café SOHO 2 for both dinners and lunches. I can also recommend the Chicken or Pork Cutlets and sauce with the accompanying miso soup, salad and rice ($11.95). For lunch, I absolutely recommend one of their Bento Boxes which include an entrée (chicken or pork cutlet, Korean style beef barbeque, stir fry pork, sushi, sashimi, maki, udon, or chicken wings), miso soup, salad, gyoza, egg custard and three pieces of California Roll ($11.95-$13.95).

For a unique and enjoyable dining experience, especially if you are in the mood for off the chart wings, try Café SOHO 2.

Café SOHO 2 920 DeKalb Pike Center Square, PA 19422 610.272.7767 / Mon/Thur: 11:30 am-10:30 pm Fri & Sat: 11:30 am-11:30 pm / Sun: 1:00-10:30 pm BYOB / Major credit cards accepted.

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